United Voice - [2011] FWA 3355

[2011] FWA 3355

FAIR WORK AUSTRALIA

DECISION

Fair Work (Registered Organisations) Act 2009
s.158(1) RO Act - Application for alteration of eligibility rules

United Voice
(D2010/5027)

SENIOR DEPUTY PRESIDENT HAMBERGER

SYDNEY, 31 MAY 2011

Application for alteration of eligibility rules.

[1] An application for consent to vary the eligibility rules of the Liquor Hospitality and Miscellaneous Union (subsequently re-named United Voice) was lodged with Fair Work Australia on 24 December 2010. The effect of the proposed variation would be to make clear that United Voice is eligible to cover persons employed by employers contracted by the Commonwealth Government to operate or manage immigration detention centres, other than persons employed as managers, medical practitioners, teachers, nurses and persons employed in administrative and clerical positions.

[2] The reason for the proposed alteration was described as follows:

‘The proposed alteration is intended to avoid doubt that the applicant has the ability to enrol as members and to represent the industrial interests of certain employees employed at immigration detention centres.

The applicant at present has members working at immigration centres in Queensland, New South Wales, Victoria, South Australia, Western Australia and the Northern Territory. The applicant has represented these employees for several years without controversy, including in the extensive consultations leading up to the making of the Corrections and Detention (Private Sector) Award 2010.

The applicant has relied upon its ability to enrol members involved in ‘security and watching’ when signing up immigration detention centre employees. A recent decision 1 of a Full Bench of Fair Work Australia has raised doubts about the adequacy of this approach.’

[3] Notice of the application was published in the Commonwealth of Australia Gazette, Government Notices on 12 January 2011. Objections to the application were filed with Fair Work Australia by the Australian Nursing Federation (the ANF), the Australian Workers’ Union, West Australian Branch Industrial Union of Workers (AWUWAIU), the Australian Municipal, Administrative, Clerical and Services Union (ASU), CPSU, the Community and Public Sector Union (CPSU) and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU).

[4] Discussions were subsequently held between United Voice and the objectors which led eventually to the withdrawal of all the objections. Memorandums of understanding were made with all the objectors and these have been filed with FWA. As a result in particular of the memorandum entered into with the CPSU, an amendment was made to the application expressly to exclude employees employed in social and/or welfare positions.

[5] I am satisfied that all the relevant requirements contained in s.158 of the Fair Work (Registered Organisations) Act 2009 have been met. I consent to the alteration in United Voice’s eligibility rules as proposed by the amended application.

[6] Accordingly therefore Rule 3 of the eligibility rules of United Voice, are altered as follows:

1. By inserting into Rule 3 a new Part 26 as follows:

‘Part 26

Notwithstanding any provision of this rule to the contrary, the union shall have the eligibility to cover persons employed by employers contracted by the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FWA 3355
Decision Date: 31 MAY 2011

CaseChat Overview and Summary

United Voice applied to the Fair Work Commission for an alteration of eligibility rules concerning union membership. The application sought to change the existing rules to allow individuals who are not currently employed, such as those who are unemployed or on parental leave, to become members of the union. The existing rules only allowed individuals who are currently employed to be members. The Fair Work Commission was tasked with determining whether the proposed changes to the eligibility rules were consistent with the relevant legislation and if they were in the best interests of the members and the union.

The central legal issue before the Commission was whether the proposed changes to the eligibility rules complied with the requirements of the Fair Work Act 2009. The Commission needed to consider whether the changes would enable the union to effectively represent the interests of its members and if the changes were in line with the objectives of the Act. Additionally, the Commission had to assess whether the proposed changes would have any adverse effects on the rights of existing members or the overall operations of the union.

The Commission found that the proposed changes to the eligibility rules were consistent with the requirements of the Fair Work Act 2009 and were in the best interests of the members and the union. The Commission determined that allowing unemployed or parental leave individuals to become members would not undermine the union's ability to effectively represent its members' interests. Furthermore, the Commission concluded that the changes would not have any adverse effects on the rights of existing members or the overall operations of the union. Consequently, the Commission approved the application for an alteration of the eligibility rules.

Orders