Traffic Management Association of Australia Inc - [2011] FWA 6802

No judgment structure available for this case.

[2011] FWA 6802

FAIR WORK AUSTRALIA

DECISION

Fair Work (Registered Organisations) Act 2009
s.18(a) RO Act - Application for registration by an association of employers

Traffic Management Association of Australia Inc
(D2010/5022)

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 25 OCTOBER 2011

Summary : application for registration as an organisation - s.19 of the Fair Work (Registered Organisations) Act 2009 - s.25 - whether unamended eligibility rule an obstacle to registration - grant of leave - conveniently belong - more effectively represent - specialist association - objectors

[1] This is an application, made on 24 November 2010, by the Traffic Management Association of Australia (“the TMAA”) for federal registration under the Fair Work (Registered Organisations) Act 2009 (“the RO Act”).

[2] The application included the requirements stipulated in Regulation 21(1)(b) - (d) of the Fair Work Act (Registered Organisations) Regulations 2009 (“the RO Regulations”).

[3] The application was made in the appropriate manner (under Form F55) for the purposes of Regulation 21(1)(a) of the RO Regulations and was gazetted (GN48 on 8 December 2010) in accordance with Regulation 22 of the RO Regulations.

[4] Objections were received from three organisations, the Australian Industry Group (“the Ai Group”), Masters Builders Australia (“MBA”) (which was acting as agent for the Queensland Master Builders Association, Master Builders Association of New South Wales, Master Builders Association of the Australian Capital Territory and Master Builders Association of South Australia Inc), and the Civil Contractors Federation (“the CCF”).

[5] These objections were lodged in accordance with Regulation 23 of the RO Regulations. The Applicant’s response to the objections was subsequently lodged in accordance with Regulation 23(5) of the RO Regulations.

[6] The CCF subsequently withdrew its objections.

[7] Following negotiations between the TMAA and the Ai Group, it appears - from the Ai Group’s perspective - that it was agreed that the TMAA would amend its proposed Rules to address the Ai Group’s concerns.

[8] That agreement appears to have been in respect of the following issues:

a. Limiting the eligibility of Members, Associate Members and Honorary Members to a company, person or other body which exclusively operates in the traffic control industry and does not operate in any other industry;

b. Deleting the category of “Supplier Member”;

c. Reflecting agreed amendments to the definitions of “Competent Legal Practitioner”, “Member or Membership” and “Traffic Control Industry”;

d. Reflecting agreed amendments to Rules 1.1 (Definitions), 1.2 (Interpretation), 4 (Eligibility for Membership), 5.1 (Classes of Membership), 5.6 (New Memberships) and 11.5 (Industrial Disputes).

[9] On the basis of the above agreed amendments, as they were, the Ai Group withdrew its objection.

[10] The manner in which the Applicant amended its rules to satisfy the Ai Group is dealt with in detail below.

[11] In order to become a registered organisation under the RO Act, an association must meet various statutory conditions. The elemental statutory conditions are set out at s.18 of the RO Act, which reads as follows:

Division 1—Types of associations that may apply for registration

18 Employer and employee associations may apply

Any of the following associations may apply for registration as an organisation:

(a) a federally registrable association of employers;

(b) a federally registrable association of employees;

(c) a federally registrable enterprise association.

18A Federally registrable employer associations

(1) An association of employers is federally registrable if:

(a) it is a constitutional corporation; or

(b) some or all of its members are federal system employers.

(3) An association of employers is not federally registrable if it has a member who is not one of the following:

(a) an employer;

(b) a person who was an employer when admitted to membership, but who has not resigned or whose membership has not been terminated;

(c) a person (other than an employee) who carries on business;

(d) an officer of the association.

(4) An association of employers is not federally registrable if:

(a) it is only a body corporate because it is or has been registered under this Act (whether before or after the commencement of this subsection); and

(b) it is not the case that some or all of the association’s members are federal system employers.

[...]

18D Constitutional validity

Associations of employers

(1) If the Parliament would not have sufficient legislative power to provide for the registration of a particular association of employers if:

(a) a particular class of employers mentioned in paragraphs (a) to (f) of the definition of national system employer in section 14 of the Fair Work Act were included when working out whether some or all of the association’s members are federal system employers;

that definition applies as if it did not include a reference to that class of employers.

(2) If the Parliament would only have sufficient legislative power to provide for the registration of a particular association of employers if the membership of the association were entirely made up of one or more of the following:

(a) federal system employers;

(b) persons (other than employees) who carry on business and who would, if they were employers, be federal system employers;

(c) officers of the association;

then, despite subsection 18A(1), the association is not federally registrable unless it is either a constitutional corporation or made up in that way.

[...]

[12] With these elemental statutory requirements fulfilled, an application must further meet the requirements of s.19 of the RO Act, which reads as follows:

Division 2—Registration criteria

19 Criteria for registration of associations other than enterprise associations

(1) FWA must grant an application for registration made by an association (other than an enterprise association) that, under section 18, may apply for registration as an organisation if, and only if:

(a) the association:

(i) is a genuine association of a kind referred to in paragraph 18(a) or (b); and

(ii) is an association for furthering or protecting the interests of its members; and

(b) in the case of an association of employees—the association is free from control by, or improper influence from, an employer or by an association or organisation of employers; and

(c) in the case of an association of employers—the members who are employers have, in the aggregate, throughout the 6 months before the application, employed on an average taken per month at least 50 employees; and

(d) in the case of an association of employees—the association has at least 50 members who are employees; and

(e) FWA is satisfied that the association would conduct its affairs in a way that meets the obligations of an organisation under this Act and the Fair Work Act; and

(f) the rules of the association make provision as required by this Act to be made by the rules of organisations; and

(g) the association does not have the same name as that of an organisation or a name that is so similar to the name of an organisation as to be likely to cause confusion; and

(h) a majority of the members present at a general meeting of the association, or an absolute majority of the committee of management of the association, have passed, under the rules of the association, a resolution in favour of registration of the association as an organisation; and

(i) the registration of the association would further Parliament’s intention in enacting this Act (see section 5) and the object set out in section 3 of the Fair Work Act; and

(j) subject to subsection (2), there is no organisation to which members of the association might belong or, if there is such an organisation, it is not an organisation:

(i) to which the members of the association could more conveniently belong; and

(ii) that would more effectively represent those members.

(2) If:

(a) there is an organisation to which the members of the association might belong; and

(b) the members of the association could more conveniently belong to the organisation; and

(c) the organisation would more effectively represent those members than the association would;

the requirements of paragraph (1)(j) are taken to have been met if FWA accepts an undertaking from the association that FWA considers appropriate to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of the organisation and the eligibility rules of the association.

(3) Without limiting the matters that FWA may take into account in considering, under subparagraph (1)(j)(ii), the effectiveness of the representation of an organisation or association, FWA must take into account whether the representation would be consistent with Parliament’s intention in enacting this Act (see section 5) and the object set out in section 3 of the Fair Work Act.

(4) In applying paragraph (1)(e), FWA must have regard to whether any recent conduct by the association or its members would have provided grounds for an application under section 28 had the association been registered when the conduct occurred.

(5) FWA must not, under this section, grant an application for registration of an association of employers or employees registered under a State or Territory industrial law if the association has a federal counterpart.

CONSIDERATION AND FINDINGS

[13] It is without challenge that the Applicant meets the requirements of s.18(a), s.18A and s.18D of the RO Act.

[14] For the related purposes of s.19(1)(a)(i) and (ii) of the RO Act, the materials before me demonstrate that the Applicant is a genuine association of a kind referred to in paragraph 18(a) or (b) of the RO Act.

[15] I reach this view because the Applicant, through its rules (noting in particular rule 3 of the Applicant's rules, which refers to the proposed organisation’s objects), seeks to represent the wide interests of its membership.

[16] Whilst the administrative capacity of the Applicant might currently be limited, as I have found elsewhere ([2009] AIRC 68), this is not a concern that is in any way fatal to the application. The materials before me demonstrate that the Applicant has interim office holders and an organisational intent. As a consequence I have no reason to question that the Applicant is not a genuine organisation for the RO Act’s purposes.

[17] For purposes of s.19(1)(b) of the RO Act, in the case of an association of employees, FWA must be satisfied that the association is free from control by, or improper influence from, an employer or an association or organisation of employers.

[18] As the Applicant is currently an association of employers, this requirement of the RO Act is not relevant.

[19] For purposes of s.19(1)(c) of the RO Act, FWA must ensure that in the case of an association of employers, the members who are employers have, in the aggregate, throughout the 6 months before the application, employed on an average taken per month, at least 50 employees.

[20] A list of the Applicant's current members was attached to its application.

[21] The requirements of s.19(1)(d) of the RO Act are not relevant to this application.

[22] For purposes of s.19(1)(e) of the RO Act, FWA must be satisfied that the association would conduct its affairs in a way that meets the obligations of an organisation under the RO Act and the Fair Work Act 2009 (“the FW Act”).

[23] Parliament’s intentions for registered organisations are set out at s.5(1) of the RO Act, which reads as follows:

5 Parliament’s intention in enacting this Act

(1) It is Parliament’s intention in enacting this Act to enhance relations within workplaces between federal system employers and federal system employees and to reduce the adverse effects of industrial disputation.

(2) Parliament considers that those relations will be enhanced and those adverse effects will be reduced, if associations of employers and employees are required to meet the standards set out in this Act in order to gain the rights and privileges accorded to associations under this Act and the Fair Work Act.

(3) The standards set out in this Act:

(a) ensure that employer and employee organisations registered under this Act are representative of and accountable to their members, and are able to operate effectively; and

(b) encourage members to participate in the affairs of organisations to which they belong; and

(c) encourage the efficient management of organisations and high standards of accountability of organisations to their members; and

(d) provide for the democratic functioning and control of organisations; and

(e) facilitate the registration of a diverse range of employer and employee organisations.

(4) It is also Parliament’s intention in enacting this Act to assist employers and employees to promote and protect their economic and social interests through the formation of employer and employee organisations, by providing for the registration of those associations and according rights and privileges to them once registered.

[24] The Applicant's rules demonstrate that it is structured and has the organisational intent to give effect to its accountabilities to its members, and to allow their representative views to be expressed. The requirement of s.19(1)(e) of the RO Act is therefore met.

[25] For purposes of s.19(1)(f) of the RO Act, FWA must be satisfied that the rules of the association make provision as required by the RO Act to be made by the rules of organisations.

[26] To this end, the Applicant has made application under s.25 of the RO Act to amend its rules in various ways.

[27] Section 25 of the RO Act reads as follows:

25 Applicant for registration may change its name or alter its rules

(1) FWA may, on the application of an association applying to be registered as an organisation, grant leave to the association, on such terms and conditions as FWA considers appropriate, to change its name or to alter its rules:

(a) to enable it to comply with this Act; or

(b) to remove a ground of objection taken by an objector under the regulations or by FWA; or

(c) to correct a formal error in its rules (for example, to remove an ambiguity, to correct spelling or grammar, or to correct an incorrect reference to an organisation or person).

Note: Paragraph (a)—in order for an organisation to comply with this Act, its rules must not be contrary to the Fair Work Act (see paragraph 142(1)(a) of this Act).

(2) An association granted leave under subsection (1) may change its name, or alter its rules, even though the application for registration is pending.

(3) Rules of an association as altered in accordance with leave granted under subsection (1) are binding on the members of the association:

(a) in spite of anything in the other rules of the association; and

(b) subject to any further alterations lawfully made.

[28] By way of Form F59, the Applicant made application to amend its rules for various purposes that were relevant to each of the criteria set out at s.25(1) of the RO Act. I grant leave for this application to be made. The various amendments to the Applicant's rules, as they are at this juncture, are set out in Appendix 1 to this decision.

[29] For current purposes, however, the amendment to the eligibility rule requires some consideration.

[30] Prior to the amendment, the Applicant’s eligibility rule read as follows:

Under sub rule 4(a) of the Applicant's rules, an organisation is eligible for membership if it “operates within or provides goods or services for the Traffic Control Industry.”

[31] Sub rule 1.1 of the unamended rules defines “Traffic Control Industry” as the “Industry where the members of the Organisation conduct their business.”

[32] The amended eligibility rule reads as follows:

“A Company, person, or Other Body will be eligible for Membership of the Organisation, being an association of employers under the Act, if the Company, person, or Other Body:

a) Operates or conducts their business by exclusively providing services for the directing, controlling or managing of traffic within the Traffic Control Industry; and

b) Carries out business in Australia; and

c) Is not a sham arrangement.”

[33] Sub rule 1.1 of the Applicant's amended rules now provides an amended definition of Traffic Control Industry, which reads:

“Traffic Control Industry means the industry exclusively in the business of providing services for the directing, controlling and managing of traffic.”

[34] Section 141(1)(a) of the RO Act relevantly reads in part as follows:

141 Rules of Organisations

(1) The rules of an organisation:

(a) must specify the purposes for which the organisation is formed and the conditions of eligibility for membership; [...]

[35] Under sub rule 4(a) of the Applicant's unamended rules, an organisation is eligible for membership if it “operates within or provides goods or services for the Traffic Control Industry.”

[36] Sub rule 1.1 of the unamended rules defines “Traffic Control Industry” as the “Industry where the members of the Organisation conduct their business.”

[37] The issue that arises is whether an eligibility rule so expressed can meet the requirements of s.141(1)(a) of the RO Act, such that it sufficiently describes the “conditions of eligibility for membership” of the Applicant.

[38] Clearly, an eligibility rule cannot be nebulous to the point that it permits membership to any person. It must, as a general proposition, have sufficient definition to indicate the identity of the industry sub grouping it seeks to represent as a genuine organisation.

[39] The unamended eligibility clause strikes me as being broad in its terms. There may be a myriad of potential members because the range of goods and services provided to the Traffic Control Industry is unlimited in scope, and not necessarily related to the Traffic Control Industry in any defined way (let alone the civil construction industry either). Arguably, however, those persons, companies or bodies with only a peripheral or incidental provider or supplier interest in respect of the Traffic Control Industry would themselves have principal interests that would be more effectively promoted elsewhere.

[40] In my view, the broad terms of the unamended eligibility rule and the unamended definition of the Traffic Control Industry set out in the Applicant's rules would have presented difficulties to the Applicant’s registration as an organisation. That is, it may have been likely that the unamended rules would not have met the requirements of s.141(1)(a) of the RO Act in so far as the unamended eligibility rule may not have provided sufficient definition of the conditions of eligibility for membership.

[41] As stated above, I have granted leave under s.25 of the RO Act for the Applicant to alter its rules for the purposes of s.25(1)(a) of the RO Act.

[42] The Applicant’s amended rules, as set out above, were given effect at a meeting of the Traffic Management Association of Australia Interim Board and Member Meeting held on 8 September 2011. The Minutes of that meeting have been put before me. They demonstrate the rules were amended in a manner according to the association’s rules.

[43] Further, the amended rules (as set out in Appendix 1) cure the defects cited above and satisfy the requirements of the RO Act.

[44] For purposes of s.19(1)(g) of the RO Act, FWA must satisfied that the association does not have the same name as that of an organisation or a name that is so similar to the name of an organisation as to be likely to cause confusion.

[45] There is no evident likely confusion arising in relation to the name of the Applicant’s association and that of any other organisation.

[46] For purposes of s.19(1)(h) of the RO Act, FWA must be satisfied that a majority of the association’s members present at a general meeting of the association, or an absolute majority of the committee of management of the association, have passed, under the rules of the association, a resolution in favour of registration of the association as an organisation.

[47] On the materials before me it is evident that the members of the TMAA’s Interim Management Committee approved the application for registration as an organisation under the RO Act.

[48] For purposes of s.19(1)(i) of the RO Act, FWA must be satisfied that the registration of the association would further Parliament’s intention in enacting the RO Act (as set out at s.5 of the RO Act) and the objects set out in s.3 of the FW Act.

[49] It does not appear that there is any specialist organisation that provides industry level representation at the federal or national levels outside of the confines of the building and construction industry.

[50] A specialist organisation which is unconfined in its industry perspective would be likely to further Parliament’s intentions in enacting the RO Act and furthering the objects of the FW Act itself.

[51] For the purposes of s.19(1)(j) of the RO Act, and subject to s.19(2) of the RO Act, FWA must be satisfied that there is no organisation to which members of the association might belong or, if there is such an organisation, it is not an organisation:

(i) to which the members of the association could more conveniently belong; and

(ii) that would more effectively represent those members.

[52] Would the Applicant's eligibility rule, as amended, capture many employers who could more conveniently belong to another organisation which would more effectively represent them?

[53] In the Building and Construction General On-Site Award 2010 (“the B&C Award”) at sub clause 3.1 “traffic management” is defined to mean “Duties in or in connection with the directing and controlling of traffic”.

[54] Sub clause 4.10(b)(vii) of the B&C Award defines traffic management as meaning “traffic management in or in connection with sub clause 4.10(b)(i)” of the B&C Award, which relates to the suite of activities that comprise general building and construction.

[55] It also appears that traffic management may be part of the security services industry, and is specifically referred to as being so when it is incidental to or associated with that industry. Sub clause 4.2(f) of the Security Services Industry Award 2010 (“the SI Award”), which concerns coverage of the SI Award, reads relevantly as follows:

4.2 To avoid doubt, the security services industry includes:

(a) patrolling, protecting, screening, watching or guarding any people and/or property, including cash or other valuables, by physical means (which may involve the use of patrol dogs or the possession or use of a firearm) or by electronic means;

(b) crowd, event or venue control whether through physical or electronic means;

(c) body guarding or close personal protection;

(d) the operation of a security control room or monitoring centre;

(e) loss prevention; and

(f) traffic control when it is incidental to, or associated with, the activities referred to in clauses 4.2(a), (b) or (c).

[56] I have set these provisions out because they demonstrate some of the extent to which traffic management and control can be incidental to the building and construction industry, or the civil construction industry, but also to the security industry, and in the context of a wide range of entertainment and crowd-related contexts. Of course, traffic management may also occur in other contexts as well, where there is road (or other) maintenance or diversionary tasks to be carried out in flood situations, and so forth.

[57] It is enough to say that “traffic management” duties do not belong exclusively in connection with the B&C Award.

[58] It is fair to conclude, therefore, that the eligibility rules of the associations for which the MBA is acting as an agent, which all (in one way or another) pertain to persons who undertake building and construction work, would not allow as a member or as a full member all employers in the “Traffic Control Industry”. The relevant eligibility rules were helpfully set out in the MBA’s Notice of Objection.

[59] Be that as it may, the MBA is an organisation to which some members of the traffic control industry might be eligible to belong.

[60] There is also reasonable argument to be had, however, that it would not be more convenient to be a member of (or to be more effectively represented by) the associations for which the MBA as an objector acts as agent. The eligibility rule for those associations is limited only to a sub category of employers within the traffic control industry, whose activities are in connection with the civil construction sector. That is, the interests of such members may only be represented where their interests are in common, to a sufficient degree, with the interests of the civil construction industry, and not otherwise.

[61] To this end, arguably, it may indeed be more convenient and more effective for employers within the traffic control industry to be represented by a specialist, though at this time nascent, peak industry organisation.

[62] A question will arise as to whether the associations for which the MBA is an agent might be best able to provide effective services. It might reasonably argued that a more mature organisation with experience and legal, training and other resources might more effectively represent its members than a nascent one. But a genuine specialist representative body of the kind I have found to exist above has the capability to provide effective services for its members.

[63] Generally, I see no compelling case made out that membership of the MBA’s organisation is more convenient than actual and potential membership of the Applicant association, and that the MBA’s organisation would more effectively represent those members. The MBA may well have members from the traffic control industry but that fact alone does not establish that it is more convenient for the traffic control industry as a whole to be members. The MBA as objector, I add, has a narrower industry perspective that that of the proposed organisation, and I understand that the Applicant’s membership have been served by way of specialist associations at state levels for some lengthy time.

[64] Mr Rick Lewis, former President of the Traffic Management Association of Queensland and former Chairman of the Building Services Contractors Association of Australia - Queensland Division, gave uncontested evidence that there was a need for a specialist industry organisation, which operates under its own Australian Standard, to improve safety and training, and to address licensing issues for traffic management companies and industrial relations matters.

[65] This evidence, I think, adds significantly to the findings I have made above.

[66] Section 19(2) of the RO Act reads:

If:

(a) there is an organisation to which the members of the association might belong; and

(b) the members of the association could more conveniently belong to the organisation; and

(c) the organisation would more effectively represent those members than the association would;

the requirements of paragraph (1)(j) are taken to have been met if FWA accepts an undertaking from the association that FWA considers appropriate to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of the organisation and the eligibility rules of the association.

[67] I see no reason to require that the Applicant provide an undertaking. This is because I see no compelling argument given the amended eligibility rule and amended definition of the Traffic Control Industry in the Applicant's rules (as set out above), that there is an organisation to which the members of the association might more conveniently belong or be more effectively represented by.

[68] For purposes of s.19(3) of the RO Act, I indicate that I have taken into account for the above considerations whether the representation to be provided by the Applicant would be consistent with Parliament’s intention in enacting the RO Act (see s.5 of the RO Act) and the objects set out in s.3 of the FW Act.

[69] There is nothing before me that would cause me to conclude otherwise in respect of the representation the Applicant intends to provide. I add that it would be unreasonable for me to include in my considerations that the Applicant is proposing a new representative organisation that may be inexperienced currently. In any event, that concern is counter-balanced by the specialist nature of the organisation that is sought to be registered under the RO Act.

[70] For purposes of s.19(4) of the RO Act, in applying s.19(1)(e), FWA must have regard to whether any recent conduct by the association or its members would have provided grounds for an application under s.28 of the RO Act had the association been registered when the conduct occurred.

[71] There is no evidence of any such conduct before me.

[72] For purposes of s.19(5) of the RO Act, FWA must not, under this section, grant an application for registration of an association of employers or employees registered under a State or Territory industrial law if the association has a federal counterpart.

[73] There is no evidence before me that there is any such existing federal counterpart.

CONCLUSION

[74] Section 19(1) of the RO Act requires that FWA must approve the registration of an association as an organisation under the RO Act “if and only if” it meets all the preconditions stipulated of the section.

[75] For the reasons given above, I have found that the applicant association has in each instance met the requirements of s.19(1) of the RO Act, as well as the requirements of the RO Regulations.

[76] I must therefore grant the application of the association, being the Traffic Management Association of Australia (the name of the association under Rule 1 and Rule 2 of the Applicant’s rules), for registration as an organisation under the RO Act.

[77] The Traffic Management Association of Australia will be registered as an organisation under the RO Act and have status as such from Wednesday, 2 November 2011.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr L. Fraser for the Applicant

Mr R. Calver for Master Builders Australia Ltd

Hearing details:

2011.
5 August and 24 August.
Brisbane.

Final written submissions:

19 September 2011.

APPENDIX 1 : AMENDED RULES

1. Resolution 1 - Amendment to definitions

Resolution 1 is moved to alter the definition of competent legal practitioner in order to remove the grounds of objection by the AIG. The amendment is proposed as follows:

1.1 Definitions

Competent Legal Practitioner

Previous: means qualified legal practitioner who:

Holds a current practicing certificate; and

Is a member of the Queensland Law Society.

Amended: means qualified legal practitioner who:

Holds a current practicing certificate; and

Is admitted to the Supreme Court of any State or Territory of Commonwealth of Australia.

2. Resolution 2 - Amendment to definitions

Resolution 2 is moved to alter the definition of member or membership in order to remove the grounds of objection by the AIG and MBA. The amendment is proposed as follows

Member or Membership

Previous: means Members and Membership of the Organisation as an Ordinary Member, an Associate Member, an Honorary Member or a Supplier Member.

Amended: means Members and Membership of the Organisation as an Ordinary Member, an Associate Member or an Honorary Member.

3. Resolution 3 - Amendment to definitions

Resolution 3 is moved to alter the definition of traffic control industry in order to remove the grounds of objection by the AIG and MBA. The amendment is proposed as follows:

Traffic control industry

Previous: where the Member of the organisation conduct their business.

Amended: means the industry exclusively in the business of providing services for the directing, controlling and managing of traffic.

4. Resolution 4 - Amendment to eligibility rule of TMAA

Resolution 4 is moved to alter the eligibility rule of TMAA in order to restrict the membership of TMAA and remove the grounds of objection by the AIG and MBA. The amendment is proposed as follows:

4. Eligibility for Membership

(a) Operates within the Traffic Control Industry; and

(b) Carries out business in Australia; and

(c) Is not a Sham Arrangement.

Amended:

A Company, person or Other Body will be eligible for Membership of the Organisation, being an association of employers under the Act, if the Company, person or Other Body:

(a) Operates or conducts their business by exclusively providing services for the directing, controlling or managing of traffic within the Traffic Control Industry; and

(b) Carries out business in Australia; and

(c) Is not a Sham Arrangement.

5. Resolution 5 - Amendment to Membership of TMAA

Resolution 5 is moved to alter the classes of membership of TMAA in order to remove the grounds of objection by the AIG. The class of Supplier Membership has been removed from the rules of TMAA. The amendment is proposed as follows:

5.1 Membership of the Organisation

(a) Ordinary Membership;

(b) Associate Membership;

(c) Honorary Membership; and

(d) Supplier Membership.

Amended:

The Organisation offers three separate classes of Membership:

(a) Ordinary Membership;

(b) Associate Membership; and

(c) Honorary Membership.

6. Resolution 6 - Amendment to new memberships

Resolution 6 is moved to insert the means by which a member might apply for membership of TMAA and how the particulars of the member might be recorded. This resolution is moved to correct a formal defect in the previous rules of TMAA. The insertion is proposed as follows:

5.6 New Memberships

Inserted:

(a) An Applicant shall complete a form of application bearing the correct name and address and its signature, or if the Applicant is a company or other body, the signature of an officer of such company or other body.

7. Resolution 7 - Amendment to dealing with industrial disputes

Resolution 7 is moved to amend to rule with respect to the notification of Fair Work Australia of disputes involving TMAA. This resolution is moved to remove an objection by AIG. The amended is proposed as follows:

11.5 Industrial Disputes

(a) Where the Organisation has identified that an industrial dispute exists, the President must notify Fair Work Australia in writing within seven (7) days of that fact, including a description of the circumstances relating to that dispute.

(b) If the President is unable or unwilling to notify Fair Work Australia that an industrial dispute exists, then the Vice-President will act-up in the capacity of the President.

Amended:

(a) Where the Organisation has identified that an industrial dispute exists, the following procedure must be followed:

(i) The President must notify the Member or Members involved or affected no later than seven (7) days after the identification of the dispute of the intention to notify Fair Work Australia of the dispute;

(ii) The Member or Members involved or affected must no later than seven (7) days after receiving notification under Rule 11.5(a)(i), approve or disapprove the notification of Fair Work Australia of the dispute; and

(iii) The President must, subject to approval being granted by the Member or Members involved or affected under Rule 11.5(a)(ii), notify Fair Work Australia in writing within seven (7) days of receiving approval from the Members or Members involved or affected, including a description of the circumstances relating to that dispute.

(b) If the President is unable or unwilling to notify Fair Work Australia that an industrial dispute exists, then the Vice-President will act-up in the capacity of the President.

8. Resolution 8 - Amendment dealing with alteration of rules

Resolution 8 is moved to amend to rule with respect to the future amendments to the rules of TMAA. This resolution is moved to remove an ambiguity in the previous rules. The amended is proposed as follows

11.2 Alteration of rules

Amended:

Subject to the Act, these Rules may be amended, repealed or added to at an Annual General Meeting, General Meeting or Special General Meeting by a Special Resolution of Members present at the Annual General Meeting, General Meeting or Special General Meeting.

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Traffic Management Association of Australia Inc [2011] FWA 6802

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