VIPA

[2015] FWC 8970

[2015] FWC 8970

FAIR WORK COMMISSION

DECISION

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

VIPA
(D2015/66)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 24 DECEMBER 2015

Summary: application for consent to amend eligibility rule – circumstances in which office holder ceases to be eligible for membership during their term – rule amendment retains eligibility for membership notwithstanding – obviates casual vacancies.

[1] This decision arises from an application by VIPA for consent to the alteration of the eligibility rules of the organisation pursuant to s.158(1) of the Fair Work (Registered Organisations) Act 2009 (“the RO Act”). VIPA is an organisation registered under the RO Act.

[2] The application itself was lodged on 20 October 2015. In accordance with Regulation 121 of the Fair Work (Registered Organisations) Regulations 2009 (“the RO Regulations”) a notice was published in the Government Gazette on 10 November 2015 stating that an application by VIPA had been received and any notice of objection was to be lodged no later than 35 days after the notice was published (that being 15 December 2015).

[3] The application and declaration appear to comply with the requirements of the RO Regulations. The application was made by the appropriate form for purposes of the Fair Work Commission’s Procedural Rules; the declaration is signed by the appropriate person; and the alteration appears to have been given effect in accordance with the rules of VIPA.

The application

[4] 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.
[...]

(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.

[5] The application, in its original form, seeks consent to alterations to VIPA’s eligibility rules. Specifically, the application seeks to amend Rule 5, “Eligibility for Membership”. The current effect of the eligibility rule is that any person who is appointed President, Vice President, Secretary and Treasurer must in each instance be a person employed as pilots on airline services within, or extending beyond, the Commonwealth of Australia by the employers prescribed at Rule 5(a)(i) - (x) of the Rules.

[6] The amendment to the eligibility rule has the effect of permitting the persons holding the above mentioned positions to remain members despite the fact that following their appointment or election they may cease to be an employee of the employers set out in Rule 5(a)(i) - (x) of the Rules. A relevant instance to which the proposed amendment will apply is when a person holding the position as President reaches retirement age after having been elected to perform such a role in the organisation. This course will avoid the necessity for a casual vacancy to arise and an election to take place.

[7] For the purposes of s.158(4) of the RO Act, I note that there are no objectors to the application such that any concerns in this respect would be agitated.

[8] There are no matters that would excite my residual discretionary power not to approve the application, as vested in me by s.158(8) of the RO Act. It would be inappropriate to exercise any such discretion absent some material concerns being in evidence. As it is, VIPA is an organisation registered under the RO Act and there is nothing before me that suggest the change to its eligibility rule has an effect other than in respect of its internal operations and governance.

[9] The application otherwise discharges the requirements of s.158 of the RO Act or those provisions are not relevant to the application in this instance.

Conclusion

[10] On the basis of my considerations of the application, the application for the alteration of the rules of VIPA is approved.

[11] The rule change will come into effect on Friday 15 January 2016.

SENIOR DEPUTY PRESIDENT

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