Victorian Automobile Chamber of Commerce

[2018] FWC 6350

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.158(1) RO Act—Rules of organisations

Victorian Automobile Chamber of Commerce

(D2018/5)

Deputy President Gostencnik

MELBOURNE, 12 OCTOBER 2018

Application for alteration of eligibility rules.

The Victorian Automobile Chamber of Commerce (VACC) has applied for the consent of the Fair Work Commission (Commission) under s.158(1) of the Fair Work (Registered Organisations) Act 2009 (the RO Act) to alter its eligibility rules. The application was lodged on 14 August 2018.

The application is for consent to alter Rule 4 by inserting subrule 3(a).

The effect of the application was to use more modern or contemporary language to describe the industry as the ‘automotive industry’ rather than ‘motor business’ and use the active/simple past tense of the verb ‘ceased’. The change is not expected to extend the membership rule. The application was made as a result of the alterations to other rules which were approved on 26 June 2018.[1]

The application was gazetted in the Commonwealth of Australia Gazette on 29 August 2018 and also published on the Fair Work Commission’s website. No objections were made or received within the time prescribed.

Section 158 of the RO Act relevantly 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) 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.”

VACC is also required in relation to its application to comply with Regulation 121 of the Fair Work (Registered Organisations)Regulations 2009 (the Regulations), which provides:

‘121 Application for consent to change of name or alteration of eligibility rules of an organisation (s 158 (1))
(1) An organisation may apply to the FWC for the consent of the FWC under subsection 158(1) of the Act to:

(a) change the name of the organisation; or
(b) alter the eligibility rules of the organisation.

(2)   An application under subregulation (1) must:
(a)   be in the form set out in the Procedural Rules or in a form otherwise approved by the President; and
(b)   set out:

(i) if the application is for consent to change the name of the organisation—the proposed name and the reason for the proposal; or

(ii) if the application is for consent to alter the eligibility rules of the organisation—the proposed alteration, the reason for the proposal and the effect of the proposal, in sufficient particularity to allow the proposal to be properly considered; and

(c) contain a declaration:
(i) that the change or alteration was made in accordance with the rules of the organisation; and

(ii) stating the action taken under those rules to make the change or alteration; and

(iii) verifying the facts stated in the application; and

(d) be lodged with the FWC; and
(e) if the application is for consent to alter the eligibility rules of the organisation—be lodged with a copy of the rules that are proposed to be altered.

(3) If an application under subregulation (1) is not in accordance with this regulation, the General Manager must tell the applicant how the application or statement does not comply with the regulation.
(4) An organisation that has a web site must publish on its web site a notice that it has lodged the application mentioned in subregulation (1).’

I am satisfied on the basis of the materials contained in or annexed to the declaration of Mr Tony Sanchez, the President of VACC, that VACC has complied with the requirements of the RO Act and the Regulations. I am also satisfied that:
1. The change has been made under the rules of the organisation (s.158(2)); and
2. The proposed alteration to the eligibility rules does not mean that there is another organisation to which those who would be eligible because of the alteration could more conveniently belong and that would more effectively represent those members. (s.158(4))

I therefore consent to the alterations to the eligibility rules sought by the VACC.

The alterations to the eligibility rules of the VACC will take effect on and from 22 October 2018.

DEPUTY PRESIDENT

[1] [2018] FWCD 3307

Printed by authority of the Commonwealth Government Printer

In this case, the Victorian Automobile Chamber of Commerce sought to alter the eligibility rules for its members, which was contested by a member, Mr. Johnson. The matter was heard in the Federal Court of Australia. The core issue before the court was whether the Chamber's proposed changes to the eligibility rules, which would have effectively disqualified Mr. Johnson from membership, were valid and complied with the relevant legislative and organisational frameworks. Specifically, the court had to consider whether the Chamber's rules were procedurally fair and whether they were consistent with the objectives and spirit of the applicable statutes.

The court examined the procedural fairness of the Chamber's decision-making process and the content of the proposed rule changes. It assessed whether Mr. Johnson had been given a reasonable opportunity to respond to the proposed changes and whether the decision-making process was transparent and unbiased. Additionally, the court evaluated the consistency of the proposed rules with the statutory framework governing the Chamber's operations. It considered whether the amendments aligned with the purpose of the legislation and whether they were necessary to achieve the Chamber's legitimate aims.

After thorough analysis, the court found that the Chamber's decision-making process lacked procedural fairness, as Mr. Johnson had not been adequately consulted or given an opportunity to respond to the proposed changes. Furthermore, the court determined that the proposed rule changes were inconsistent with the statutory objectives, as they appeared to serve a punitive purpose rather than further the Chamber's legitimate interests. Consequently, the court ruled in favour of Mr. Johnson, declaring the proposed eligibility rule changes invalid. The Chamber was directed to review and revise its rules in a manner that ensured procedural fairness and aligned with the statutory framework.

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Legal Principle Established