United Voice WA

[2016] FWC 9220

[2016] FWC 9220

FAIR WORK COMMISSION

INTERIM 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, 22 DECEMBER 2016

Application/Notification for an extension by a transitionally recognised association by United Voice.

[1] On 16 December 2016, United Voice WA (UVWA) lodged an application 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).

[2] UVWA states in its application that it is making progress toward rationalising its internal affairs with those of United Voice, as its federal counterpart. UVWA seeks an extension of its transitionally recognised standing for a period of one year.

[3] On 30 May 2006, UVWA, which was formerly the applicant, Hospitality and Miscellaneous Union, Western Australian Branch, was granted transitional recognition consequent upon an application made under clause 2 of Schedule 10 of the Workplace Relations Act 1996. 1

[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] Section 158A of the RO Act states:

“158A Alteration of eligibility rules of organisation by General Manager

(1) The General Manager must, on application by an organisation in accordance with subsection (2), consent to an alteration of the eligibility rules of the organisation to extend them to apply to persons within the eligibility rules of an association of employers or employees that is registered under a State or Territory industrial law, if the General Manager is satisfied:

(a) that the alteration has been made under the rules of the organisation; and

(b) that the organisation is a federal counterpart of the association; and

(c) that the alteration will not extend the eligibility rules of the organisation beyond those of the association; and

(d) that the alteration will not apply outside the limits of the State or Territory for which the association is registered; and

(e) as to such other matters (if any) as are prescribed by the regulations.

Note: If the General Manager consents to the alteration, the FWC may make orders that reflect State representation orders (see section 137F).

(2) The application must not be made before 1 January 2011, or such later day as the Minister declares in writing.

(3) A declaration made under subsection (2) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the declaration.

(4) If the General Manager consents, under subsection (1), to an alteration, the alteration takes effect on:

(a) if a day is specified in the consent—that day; or

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

[6] On 13 December 2010 the relevant Minister declared 1 January 2012 as the date from which an application may be made under s.158A(1). This means that, absent an extension pursuant to Clause 6(2) of Schedule 1 of the RO Act, the transitional recognition of UVWA will cease on 1 January 2017.

[7] Put bluntly, this interim decision reflects a problem of the UVWA’s own making. The lodgement of this application two weeks prior to 1 January 2017, does not permit proper consideration of the matter. In fact, my office only received the application on 21 December 2016. If the matter is listed for consideration after 1 January 2017, there is significant doubt that the Commission has the jurisdiction to restore that transitional recognition once it has lapsed.

[8] As a consequence, and in order that the application can be properly considered, I have extended the transitional recognition of UVWA until the application is determined or, until a further Order is made. That approach appears to be consistent with the provisions of Clause 6 of Schedule 1 of the RO Act and the provisions of s.589 of the Fair Work Act 2009. An Order (PR588941) consistent with this decision will be issued.

SENIOR DEPUTY PRESIDENT

 1 R2006/180

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