United Voice WA
[2017] FWC 779
•7 FEBRUARY 2017
| [2017] FWC 779 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work (Registered Organisations) Act 2009
Sch. 1, Cl. 6(2) RO Act - Application for an extension by a TRA
United Voice WA
(D2016/79)
SENIOR DEPUTY PRESIDENT O'CALLAGHAN | ADELAIDE, 7 FEBRUARY 2017 |
Application/Notification for an extension by a transitionally recognised association by United Voice.
[1] On 22 December 2016, I issued an interim decision 1 in relation to an application made by United Voice WA (UVWA) to extend its status as a Transitionally Recognised Association pursuant to Schedule 1 Clause 6 of the Fair Work Registered Organisations Act 2009 (the RO Act). That interim decision extended the transitional recognition of UVWA until the application was determined, or until a further Order was made. Consequent upon that decision, I issued directions requiring UVWA to provide the Commission with any submissions and evidence upon which it wished to rely and listed the matter for hearing on 3 February 2017.
[2] UVWA subsequently provided further submissions in support of a statutory declaration made out by Ms Smith as the Secretary of UVWA. I have taken these further submissions, the statutory declaration, and the advice provided to me at the hearing on 3 February 2017 into account in reaching a conclusion in this matter.
[3] As I noted in my interim decision, the RO Act provides that the transitional recognition of UVWA concludes on 1 January 2017, unless an extension is granted.
[4] Clause 6 of Schedule 1 of the RO Act states:
“6 End of transitional recognition
(1) The recognition under this Schedule of a transitionally recognised association that has been granted transitional recognition in relation to an application under subclause 2(1) ends:
(a) when it is cancelled under clause 5; or
(b) when the association becomes an organisation; or
(c) in any other case—at the end of:
(i) unless subparagraph (ii) or (iii) applies—the fifth anniversary of the earliest day on which an organisation can make an application in accordance with subsection 158A(2); or
(ii) if the FWC grants the association an extension under subclause (2) of this clause and subparagraph (iii) does not apply—the sixth anniversary of that day; or
(iii) if the FWC grants the association a further extension under subclause (3) of this clause—the seventh anniversary of that day.
(1A) The recognition under this Schedule of a transitionally recognised association that has been granted transitional recognition in relation to an application under subclause 2(1A) ends:
(a) when it is cancelled under clause 5; or
(b) when the association becomes an organisation; or
(c) in any other case—at the end of the latest of the following days:
(i) the day (the default day) that is the later of the fifth anniversary of the day the Fair Work Amendment (Transfer of Business) Act 2012 commenced and a day prescribed by the regulations;
(ii) if the FWC grants the association an extension under subclause (2)—the anniversary of the default day;
(iii) if the FWC grants the association a further extension under subclause (3)—the second anniversary of the default day.
(2) The FWC may, on application by a transitionally recognised association, grant the association an extension for the purposes of subparagraph (1)(c)(ii) or (1A)(c)(ii) if the FWC is satisfied that the association has made progress towards:
(a) becoming an organisation; or
(b) rationalising its internal affairs with those of its federal counterpart.
(3) The FWC may, on application by a transitionally recognised association, grant the association a further extension for the purposes of subparagraph (1)(c)(iii) or (1A)(c)(iii) if the FWC is satisfied that:
(a) the association has made further progress towards:
(i) becoming an organisation; or
(ii) rationalising its internal affairs with those of its federal counterpart; and
(b) there are extenuating circumstances justifying the further extension.”
[5] The UVWA application is pursued on the basis that it satisfies the provisions of cl.6(2)(a) in that it has made further progress toward rationalising its internal affairs with those of its federal counterpart, United Voice (UV).
[6] Ms Smith’s statutory declaration confirms the registered organisation status of UVWA and, the steps which have been taken since 30 May 2006 when UVWA’s application for transitional registration was granted. She advised that:
“The internal affairs of UV and UVWA have been rationalised administratively, with correlated structures and streamlined and coherent financial arrangements.
When a person applies to join UVWA they also join UV, with the practical consequence that the membership of the UVWA and UV are the same.
The financial arrangements of UV and UVWA are fully integrated. UV employs all employees, owns the assets real and personal, collects the fees from the joint members and discharges its financial obligations.
By means of a service agreement services are provided by UV to UVWA as required by UVWA to discharge its obligations on a cost only basis.
Elections for elected officials of UV and UVWA are conducted in accordance with Rule 40 of UV. Elections for UV and UVWA are conducted simultaneously by a single ballot process.
The same persons occupy the positions of President, Vice-Presidents, Secretary, Assistant Secretaries of Branch Council or Committee of Management of the Western Australian Branch of UV and UVWA.
Council meetings of the Western Australian branch of UV and UVWA are conducted on the same day, one immediately following the closure of the preceding meeting.” 2
[7] Ms Smith confirmed that the eligibility rules of UV and UVWA differed only to the extent that the eligibility rules of UVWA provide:
“The eligibility rules of UV and UVWA are substantially the same, except the rules of UVWA provide:
AND in addition the Union shall consist of an unlimited number of persons who are employed by the St John Ambulance Association for the purpose of operating first aid and/or ambulance services, and who hold a first aid certificate as a necessary condition of that employment.
The eligibility rules of UV in rule 3, Part 5 (page 15) provide for coverage in Western Australia of ‘ambulance and first aid attendant.’
St John Ambulance Association is a trading corporation and is a national system employer.
Persons covered by the eligibility rule described in paragraph 19 are Communication Officers, Transport Officers, First Aid Officers and District Superintendents employed by St John Ambulance Association. There is some ambiguity as to whether these employees fall within the coverage of ambulance and first aid attendants provided for in the rules of UV.
UVWA currently has 134 financial members who are in the industrial pursuits named in paragraph 19.
The eligibility rules of UV do not include the UVWA eligibility rule described in paragraph 19.
For the past six months UV has been reviewing its rules with the intention of amending them to simplify and re-draft in plain English. It is anticipated that the amendments will be extensive.
As a part of this process the UV’s eligibility rules will be amended to include the eligibility rule described in paragraph 19.
The proposed timetable for amending UV’s rules is:
- Drafting of the amendments to be completed by 30 April 2017;
- Proposed amendments to be provided to branches for comment in the first week of May 2017,
- Branches to submit comments and items for agenda by mid-June 2017;
- Agenda items forwarded to Branches by end of June;
- National Council to consider at its meeting of 3 august 2017; and
- Rule changes submitted to Fair Work Commission for approval by end of August 2017.
It is anticipated that the Fair Work processes to effect changes to the rules will be completed by 31 December 2017.
The amendment of UV’s rules with the inclusion of the UVWA eligibility rule will substantially complete the rationalisation of the internal affairs of UVWA and UV.
I consider it necessary to ensure that the interests of members of UVWA, and specifically the interests of the members described in paragraph 19 are protected and that the UVWA’s registration as a transitionally recognised association be extended for 12 months under section 6(2) of Schedule 1 to the Fair Work (Registered Organisations) Regulations 2009 whilst the rule amendments are in process. My concern is that if the transitional registration of UVWA is not extended for a period of 12 months that a group of our members will be left without any effective industrial representation.” 3
[8] In contrast, the eligibility rules of UV provide for coverage in Western Australia of “ambulance and first aid attendant”.
[9] Ms Smith advised that UV intended to amend its eligibility rule size to be consistent with the existing UVWA rules. In her statutory declaration she anticipated that the necessary steps would occur to allow an application to this effect to be made to the Fair Work Commission (FWC) by the end of August 2017 so that rule changes could be completed by 31 December 2017. In its subsequent advice to me, UVWA advised that UVWA and UV had accelerated that amendment process and now anticipated completing the necessary steps so as to allow an application to amend the UV eligibility rules to be made to the FWC in late February 2017.
[10] In the hearing on 3 February 2017, UVWA also confirmed that its fully integrated membership system established a single membership fee structure and that there were negligible administrative costs associated with the current maintenance of the two separate entities.
[11] On the information before me I am satisfied that UVWA has made progress towards rationalising its internal affairs with those of UV such that the jurisdictional precondition for the exercise of the discretion in clause 6(2) has been met.
[12] The nature of the organisational arrangements put into effect by UVWA is such that I consider it appropriate to exercise that discretion so as to extend the UVWA’s transitional recognition until 1 January 2018.
[13] I therefore order as follows:
Pursuant to clause 6(2) of schedule 1 of the Fair Work (Registered Organisations) Act 2009, the transitional recognition of United Voice WA, is extended until 1 January 2018.
Appearances:
B Palmer for United Voice – WA Branch.
Hearing details:
2016:
Adelaide (and video-link to Perth)
February 3.
1 ([2016] FWC 9220)
2 Statutory Declaration of Carolyn Smith, paras 11 - 18
3 Statutory Declaration of Carolyn Smith, paras 19 - 30
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