Transport Workers’ Union of Australia

[2021] FWC 3704

[2021] FWC 3704

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009
s.158(1) RO Act—Rules of organisations

Transport Workers’ Union of Australia
(D2021/1)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 28 JUNE 2021

Application by TWU for consent to alter eligibility rules – no opposition to application – consent to proposed rule alteration

[1] The Transport Workers’ Union of Australia (TWU) has applied for consent from the Fair Work Commission (Commission) to alter its eligibility rules in accordance with s 158 of the Fair Work (Registered Organisations) Act 2009 (RO Act).

Proposed amendments to the TWU’s eligibility rules

[2] The TWU wishes to alter its eligibility rules as follows (underlining is used to indicate the proposed amendments):

“ANNEXURE B - CONDITIONS OF ELIGIBILITY FOR MEMBERSHIP

(A)(3) Until amalgamation be effected with other organizations of employees or associations engaged in transport all persons engaged in the following classes of work shall not be eligible for membership in the organization namely-

(i)...

(ii)...

(iii) Subject to Rule A(4) below, Tramways passenger Transport.

(iv)....

(A)(4) Notwithstanding the exclusion of tramways passenger transport in both Annexure A and Rule (A)(3)(iii) in Annexure B above, these exclusions do not apply to or extend to any employee that is engaged to perform work in the Australian Capital Territory.”

[3] The reason for the proposed rule alteration is to remove the exclusion on persons engaged in tramways passenger transport in the Australian Capital Territory (ACT) from being eligible for membership of the TWU.

[4] The effect of the proposed rule alteration would be to permit persons working on trams or light rail in the ACT, including but not limited to the Canberra Metro, to become eligible to be members of the TWU. The exclusion on enrolling persons working in the classes of work described in sub rules A(3)(i) to (ii) are not affected by the proposed alteration

Legislative scheme

[5] Section 158 of the RO Act governs a proposed alteration to the eligibility rules of an organisation registered under the RO Act, such as the RTBU. Section 158 provides:

“158 Change of name or alteration of eligibility rules of organisation

(1) A change in the name of an organisation, or an alteration of the eligibility rules of an organisation, does not take effect unless:

(a) in the case of a change in the name of the organisation – the FWC consents to the change under this section; or

(b) in the case of an alteration of the eligibility rules of the organisation:

(i) the FWC consents to the alteration under this section; or

(ii) the General Manager consents to the alteration under section 158A.

(2) The FWC may consent to a change or alteration in whole or part, but must not consent unless the FWC is satisfied that the change or alteration has been made under the rules of the organisation.

(3) The FWC must not consent to a change in the name of an organisation unless the FWC is satisfied that the proposed new name of the organisation:

(a) this is not the same as the name of another organisation; and

(b) is not so similar to the name of another organisation as to be likely to cause confusion.

(4) The FWC must not consent to an alteration of the eligibility rules of an organisation if, in relation to persons who would be eligible for membership because of the alteration, there is, in the opinion of the FWC, another organisation:

(a) to which those persons could more conveniently belong; and

(b) that would more effectively represent those members.

(5) However, subsection (4) does not apply if the FWC accepts an undertaking from the organisation seeking the alteration that the FWC considers appropriate to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of that organisation and the eligibility rules of the other organisation.

(6) The FWC may refuse to consent to an alteration of the eligibility rules of an organisation if satisfied that the alteration would contravene an agreement or understanding to which the organisation is a party and that deals with the organisation’s right to represent under this Act and the Fair Work Act the industrial interests of a particular class or group of persons.

(7) The FWC may also refuse to consent to an alteration of the eligibility rules of an organisation if it:

(a) is satisfied that the alteration would change the effect of any order made by the FWC under section 133 about the right of the organisation to represent under this Act and the Fair Work Act the industrial interests of a particular class or group of employees; and

(b) considers that such a change would give rise to a serious risk of a demarcation dispute which would prevent, obstruct or restrict the performance of work in an industry, or harm the business of an employer.

(8) Subsections (6) and (7) do not limit the grounds on which the FWC may refuse to consent to an alteration of the eligibility rules of an organisation.

(9) Where the FWC consents, under subsection (1) to a change or alteration, the change or alteration takes effect on:

(a) where a date is specified in the consent – that date; or

(b) in any other case – the day of the consent.

(10) This section does not apply to a change in the name, or an alteration of the eligibility rules, of an organisation that is:

(a) determined by the FWC under subsection 163(7); or

(b) proposed to be made for the purposes of an amalgamation under Part 2 of Chapter 3 or Division 4 of Part 7 of Chapter 11; or

(c) proposed to be made for the purposes of a withdrawal from amalgamation under Part 3 of Chapter 3.”

Material before the Commission

[6] On 23 February 2021, the TWU filed its application for consent to its proposed rule alteration, together with a declaration made by Mr Nick McIntosh, National Assistant Secretary of the TWU, on 12 February 2021.

[7] Notice of receipt of the application was published in the Commonwealth of Australia Gazette on 7 May 2021. The period of objections closed on 11 June 2021. No objection has been lodged in relation to the TWU’s proposed rule change.

Consideration

[8] On the basis of the material before the Commission I am satisfied that:

(a) the proposed rule alteration has been made under the rules of the TWU;

(b) in relation to persons who would be eligible for membership of the TWU because of the alteration, there is not, in my opinion, another organisation:

(i) to which those persons could more conveniently belong; and

(ii) that would more effectively represent those members

(c) the proposed rule alteration would not contravene an agreement or understanding to which the organisation is a party and that deals with the organisation’s right to represent under the RO Act and the Fair Work Act the industrial interests of a particular class or group of persons;

(d) there is no relevant order under section 133 of the RO Act; and

(e) there is no discretionary reason not to consent to the rule change.

[9] Accordingly, I am satisfied that the requirements of s 158 of the RO Act are met in this case.

Conclusion

[10] In all the circumstances and for the reasons set out above, I exercise my discretion to consent to the TWU’s application to alter its eligibility rules.

[11] In accordance with s 158(9) of the RO Act, the Commission’s consent to the TWU’s application will take effect on 5 July 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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