state unions

STATE UNIONS AND THE

FEDERAL INDUSTRIAL

RELATIONS SYSTEMJames Hall

30 October 2015

USYD Law School

Introduction

Recognition and Registration

Federal Counterpart

Recognition under the RO Act

Transitionally Recognised Associations

Recognised State-Registered Associations

Registration under the RO Act

Criteria for registration for non-TRA’s

Criteria for registration for TRA’s

Section 158A

Sections 154A and 154B

Competing Themes

Enterprise Associations

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1. Recognition and Registration

The Fair Work (Registered Organisations) Act 2009 (RO Act) provides for both therecognition of associations and the registration of organisations.

• Organisation and Association under the RO Act

- an organisation is registered under the RO Act and includesorganisations of employees and organisations of employers.

- an association is not registered under the RO Act and includes employee andemployer associations registered under State legislation and unregisteredemployee and employer associations.

• Recognition – allows an association to operate in the federal industrial relationssystem. However, it does not give the association a legal identity it does notalready have and the requirements imposed upon organisations under the RO Actgenerally do not apply.

• Registration – gives an organisation the status of an organisation for the purposesof the Fair Work Act 2009 and the RO Act and as a body corporate.

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2. Federal Counterpart

The term “federal counterpart” was introduced into the RO Act on 1 July 2009 by the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

Section 9A(1) – federal counterpart prescribed by regulations. Schedule 1A of the Fair Work (Registered Organisations) Regulations 2009 (RO Regs) sets out a list of State-registered employee associations and their federal counterparts – regulation 8A.

If an association is not listed in in Schedule 1A, section 9A(2) applies – an organisation that has a branch (including a division of such a branch or a constituent part of such a branch) in the State or Territory that has or purports to have substantially the same eligibility rules as the association and a history of integrated operation with the association or an organisation of which the association has purported to function as a branch (including a division of a branch or a constituent of a branch).

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3. Recognition under the RO Act

The RO Act provides two avenues for an association to gain recognition. A

State-registered union (State Union) can potentially apply for recognition as a:

1. Transitionally Recognised Association (TRA) under Schedule 1; or

2. Recognised State-Registered Association (RSRA) under Schedule 2.

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4. Transitionally Recognised Associations – Sch. 1

Introduced by the Workplace Relations Amendment (Work Choices) Act 2005.

Provided a mechanism for State-registered associations, including State

Unions, to participate in the federal industrial relations system and eventually

achieve registration.

Originally known as Transitionally Registered Associations.

Recognition was to originally cease in 2009. This date has been extended.

Relevant provisions set out in Schedule 1 of the RO Act.

Currently 78 TRA’s.

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Criteria for Recognition as a TRA – Cl. 2

An association may apply for transitional recognition under Schedule 1 if:

1. The association is registered under the relevant industrial legislation in NSW, Qld, WA, SA or Tas;

2. Immediately before 26 March 2006, it had at least one member who was an employee whose employment was subject to a State award, a State employment agreement or a State or Territory industrial law;

3. Immediately before 26 March 2006, it was entitled to represent the industrial interests of the member in relation to work that was subject to the State award, a State employment agreement or a State or Territory industrial law;

4. On the commencement of the Work Choices amendments, 27 March 2006, the employee became bound by, or the employment of the employee became subject to, a preserved State agreement or a notional agreement preserving State awards (NAPSA) if he or she continues in that employment;

5. It is also not an organisation or a branch of an organisation.

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Effect of Recognition as a TRA– Cl. 3, 4

The provisions of the Fair Work Act 2009 and Part 3 of Chapter 4 of the RO Act apply to TRA’s.

Fair Work Act 2009 – important provisions regarding being a bargaining representative in relation to the making of an enterprise agreement and the right of entry regime.

Pt 3 of Ch 4 of the RO Act – deals with orders which may be issued by the FWC regarding the right of an organisation to represent the industrial interests of employees. Order may provide that an organisation is to have the right, to the exclusion of other organisations, to represent the industrial interests of employees in a particular “workplace group” who are eligible for membership of the organisation or that an organisation does not have the right to represent the industrial interests of employees in a particular “workplace group”.

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Effect of Recognition as a TRA – cont’d.

Division 2 of Part 1 of Schedule 1 of the RO Regs provides that, if a TRA was

subject to a State representation order under State law immediately before 27

March 2006, then the FWC must, on application, make a representation order

of the same effect.

- Ensures that the representation rights of TRA’s are carried over into the

federal industrial relations system – may even bind an organisation not

involved in the relevant State representation order.

Recognition as a TRA does not give the association a legal identity it does not

already have or a right to represent the industrial interests of its members

outside the State in which it is registered.

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Duration of Recognition as a TRA – Cl. 6

Recognition of a TRA ends:

- when it is cancelled;

- when the association becomes registered as an organisation under the

RO Act; or

- on the fifth anniversary of the earliest day on which an organisation can

make an application in accordance with s. 158A(2) of the RO Act – 1

January 2017 (Fair Work (Registered Organisations) Declaration 2010).

A TRA may seek up to two one year extensions from the FWC to allow its

recognition to continue beyond this date if it is in the process of becoming an

organisation or rationalising its internal affairs with those of its federal

counterpart and there are extenuating circumstances justifying the further

extension.

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5. Recognised State-Registered Associations – Sch. 2

Introduced into the RO Act on 1 July 2009 by the Fair Work (Transitional

Provisions and Consequential Amendments) Act 2009.

Relevant provisions set out in Schedule 2 of RO Act.

However, as Schedule 1AA was not inserted into the RO Regs until 15

December 2011, it was not possible before this date to apply for recognition as

an RSRA as no laws were prescribed for the purposes of clause 1(2) of

Schedule 2 of the RO Act.

Key differences with TRA – prohibition on an association with a federal

counterpart gaining recognition; duration of recognition is indefinite.

Probably more appropriate for State-registered employer associations rather

than State Unions.

Currently one RSRA.

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Criteria for Recognition as a RSRA – Cl. 1

An association may apply for recognition as Recognised State-Registered

Association (RSRA) under Schedule 2 if:

1. The association is registered under the relevant industrial legislation in

NSW, Qld, WA or SA ; and

2. The association has no federal counterpart.

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Effect and Duration of Recognition as an RSRA – Cl. 2, 3

The provisions of the Fair Work Act 2009 and Part 3 of Chapter 4 of the RO

Act apply to RSRA’s.

Recognition as a RSRA does not give the association a legal identity it does

not already have or a right to represent the industrial interests of its members

outside the State in which it is registered.

Recognition continues indefinitely unless cancelled by the FWC or the Federal

Court

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6. Registration under the RO Act

A State Union may potentially apply for registration as an organisation under

the RO Act.

The requirements regarding registration differ depending on whether the State

Union is recognised as a TRA.

State Unions with a federal counterpart cannot be registered as an

organisation.

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Federally registrable employee associations – s. 18B

An association of employees is “federally registrable” if:

- it is a constitutional corporation; or

- some or all of its members are federal system employees.

An association is not “federally registrable” if it has a member who is not one of the following:

- an employee;

- an independent contractor who, if he or she were an employee performing work of the kind he or she usually performs as an independent contractor, would be an employee eligible for membership of the association;

- an officer of the association; or

- persons who are, or are able to become, members of an industrial organisation of employees within the meaning of NSW legislation or are deemed to be employees under Qld, WA or SA legislation

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7. Criteria for Registration – non-TRA – s. 19

1. Must be a genuine “federally registrable” association of employees as

defined in section 18B and is an association for furthering or protecting the

interests of its members;

2. Must be free from control by, or improper influence from, an employer or by

an association of employers;

3. It has at least 50 members who are employees;

4. It would conduct its affairs in a way that meets the obligations of an

organisation under the RO Act and the Fair Work Act 2009;

5. Its rules make provision as required by the RO Act;

6. It does not have the same name as that of an existing organisation or a

name that is so similar as to be likely to cause confusion;

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Criteria for Registration – non-TRA cont’d

7. A majority of the members present at a general meeting of the association, or an absolute majority of the committee of management of the association, have passed, under the rules of the association, a resolution in favour of registration of the association as an organisation;

8. The registration of the association would further the objects of the RO and the Fair Work Act 2009; and

9. There is no existing organisation to which members of the association might belong or, if there is such an organisation, it is not an organisation to which members of the association could more conveniently belong and that would more effectively represent those members. This requirement is subject to any undertaking the association may make to avoid demarcation disputes.

The FWC must not grant an application for registration of a State-registered association if the association has a federal counterpart.

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8. Criteria for Registration – TRA – s. 19

1. Must be a genuine “federally registrable” association of employees as

defined in section 18B and is an association for furthering or protecting the

interests of its members;

2. Must be free from control by, or improper influence from, an employer or by

an association of employers;


4. It would conduct its affairs in a way that meets the obligations of an

organisation under the RO Act and the Fair Work Act 2009;


6. It does not have the same name as that of an existing organisation or a

name that is so similar as to be likely to cause confusion;

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Criteria for Registration – TRA – s. 19 cont’d

7. A majority of the members present at a general meeting of the association,

or an absolute majority of the committee of management of the association,

have passed, under the rules of the association, a resolution in favour of

registration of the association as an organisation;

8. The registration of the association would further the objects of the RO and

the Fair Work Act 2009; and

9. The rules of the association must state that the association is eligible to

represent members only within the State in which it has been registered as a

State-registered association immediately before its recognition as a TRA (cl.

1.13, Pt 3, Sch 1 of the RO Regs)

The FWC must not grant an application for registration of a State-registered

association if the association has a federal counterpart.

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9. Section 158A

Introduced into the RO Act on 1 July 2009 by the Fair Work (Transitional

Provisions and Consequential Amendments) Act 2009.

Provides a mechanism where a federally registered organisation can apply to

alter and extend its eligibility rules to pick up the coverage of a State Union of

which it is a federal counterpart.

Differs from usual process of altering eligibility rules of an organisation under

s. 158:

- consent given by General Manager not Tribunal Member;

- the more conveniently belong rule does not apply but is subject to different

criteria;

- only the ACTU may object rather than any interested organisation,

association or person.

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Section 158A – Procedural Framework

Application made by federal organisation and involves alteration to eligibility

rules of the federal organisation.

Application must meet requirements set out in RO Regs (reg 125B).

Application must be gazetted (reg 125C).

Only ACTU may object to applications made by employee organisations (reg

125F).

The General Manager may only hold a hearing about the application if she

considers it appropriate to do so (reg 125G).

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Criteria for General Manager to Consent – s. 158A(1),

reg. 125A1. The alterations have been made under the rules of the organisation (s. 158A(1)(a));

2. The organisation is a federal counterpart of the association (s. 158A(1)(b));

3. The alteration will not extend the eligibility rules of the organisation beyond those of the association (s. 158A(1)(c));

4. The alteration will not apply outside the limits of the State or Territory for which the association is registered (s. 158A(1)(d)); and

5. The association “actively represents” the class or classes of employees to which the extension of the eligibility rules will apply:

a. Must be engaged in at least one of the following activities in relation to the class or classes of employees:

i. Organising or recruitment activity;

ii. Representing employees in negotiations with employers;

iii. Representing employees in industrial bodies;

iv. Obtaining and maintaining award conditions; or

v. Collective bargaining; and

b. The class of employees is covered by the eligibility rules of the association (s. 158A(1)(e) and reg 125A(1), (3)).

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Criteria for General Manager to Consent – cont’d

However, an association is taken to not actively represent a class of

employees if the association is subject to a representation order, State

demarcation order or a demarcation undertaking or agreement (however

described) in relation to that class of employees in favour of another

organisation or association (reg 125A(4)).

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Issues regarding 158A

Unlike applications under section 158, no power to consent to alteration of eligibility rules “in whole or part” – limited power to sever see Australian Municipal, Administrative, Clerical and Services Union [2014] FWCG 3677 at [21]–[22].

The terms of reg 125A(4) are quite broad – includes “demarcation undertaking or agreement (however described)” – potentially difficult to demonstrate given long history of association – can be resolved by terms of alteration itself see The Australian Workers’ Union [2013] FWCG 2822 .

The importation of the complete text of eligibility rules of the State Union (including exclusions) may have the effect of restricting rather than extending eligibility rules of an organisation see Australian Municipal, Administrative, Clerical and Services Union[2014] FWCG 3677.

Difficulty demonstrating how State Union actively represents a class of employees given greatly reduced coverage of State industrial relations systems outside of WA.

Difficulty in distinguishing between activities of branch of federal organisation as opposed to State Union.

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10. Sections 154A and 154B

• Section 154A provides that the rules of an organisation may provide for the

autonomy of a branch in matters affecting members of the branch only and

matters concerning the participation of the branch in a State workplace

relations system.

• Section 154B provides that the rules of an organisation may provide for a fund

of the branch that is to be “managed and controlled under the rules the

branch”. Such a fund may comprise real property, subscriptions, fees and

levies, interest and dividends, superannuation and a range of other items set

out therein.

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11. Competing Themes

Competitive unionism.

Participation by State Unions in federal industrial relations system.

Consolidation and reduction of duplication in federal industrial relations

system.

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NSW Astronauts Union

- registered under Industrial

Relations Act 1996 (NSW)

- eligibility rules cover

Astronauts and Deep Sea

Divers

RSRA – Sch 2

- cannot be

recognised

TRA – Sch 1

Federal

Registration

– s. 19

- cannot be

registered

Federated Astronauts

Association of Australia

- registered under RO Act


Astronauts nationallyFederal Counterpart

Deep Sea Divers

in NSW

- must actively

represent

Extend eligibility

rules to cover Deep

Sea Divers in NSW

s.158A

2017 or up to 2019 on

application

Autonomy and control of

fund for NSW Branch

ss. 154A and 154B

NSW Branch

State Union with federal counterpart

NSW Astronauts Union

- registered under

Industrial

Relations Act 1996

(NSW)


Astronauts and Deep

Sea Divers

TRA – Sch 1

Not Federal Counterpart

Federal Registration

s. 19

2017 or up to 2019 on

application

RSRA – Sch 2

More

conveniently

belong rule

applies

More conv

belong rule

does not apply

Rules must state that it

is eligible only to

represent members in

NSW

May object to registration

as Astronauts could more

conveniently belong to PAA

Pilots Association of

Australia (PAA)

- registered under RO Act


pilots and persons

engaged in or in connection

with the operation and

control of flying and

aeronautical vehicles

State Union without federal counterpart

12. Enterprise Associations

A State Union could potentially apply for registration as an enterprise

association if it conforms to the definition of a “federally registrable” enterprise

association.

Alternative to applying for registration as an association of employees

generally.

Different criteria for registration as an organisation – not subject to more

conveniently belong rule; lower threshold regarding number of members.

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Federally Registrable Enterprise Associations – s. 18C

An association the majority of members of which are employees performing work in the same enterprise (see definition of “enterprise” in s. 6 – business carried out by single employer or related bodies corporate, operationally distinct part of business or a grouping of 2 or more operationally distinct parts of a business).

An enterprise association is federally registrable if:

- a constitutional corporation;

- some or all of its members are federal system employees;

- the relevant employer(s) is a constitutional corporation;

- the relevant enterprise operates principally within or from a Territory;

- the relevant enterprise is engaged principally in trade or commerce between Australia and a place outside Australia;

- the relevant enterprise is engaged principally in trade or commerce among the States;

- the relevant enterprise is engaged principally in trade or commerce within a Territory, between a State and a Territory or between 2 Territories;

- the relevant enterprise is engaged principally in the supply of postal, telegraphic, telephonic or other like services;

- the relevant enterprise is engaged principally in banking;

- the relevant enterprise is engaged principally in insurance; or

- the relevant enterprise is in Victoria and the provisions of the RO Act that would apply to the association fall within the legislative power referred to the Commonwealth by Victoria.

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Federally Registrable Enterprise Associations – cont’d

An enterprise association is not federally registrable if it has a member who is not one

of the following:

- an employee performing work in the relevant enterprise;

- an independent contractor performing work in the relevant enterprise who, if

he or she were an employee performing work of the kind he or she usually

performs as an independent contractor, would be an employee eligible for

membership of the association and could be characterised as a national

system employee within the meaning of s. 13 of the Fair Work Act 2009;

- an officer of the association; or

- persons who are, or are able to become, members of an industrial organisation of

employees within the meaning of NSW legislation or are deemed to be employees

under Qld, WA or SA legislation.

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Criteria for Registration – s. 20

1. Must be a genuine “federally registrable” association of employees as defined in section 18C and is an association for furthering or protecting the interests of its members;

2. Must be free from control by, or improper influence from, any employer, whether at the relevant enterprise or otherwise, any person or body with an interest in that enterprise or any organisation or any association of employers or employees;


4. It would conduct its affairs in a way that meets the obligations of an organisation under the RO Act and the Fair Work Act 2009;


6. It does not have the same name as that of an existing organisation or a name that is so similar as to be likely to cause confusion;

7. A majority of the persons eligible to be members of the association support its registration as an organisation;

8. A majority of the members present at a general meeting of the association, or an absolute majority of the committee of management of the association, have passed, under the rules of the association, a resolution in favour of registration of the association as an organisation;

9. The registration of the association would further the objects of the RO and the Fair Work Act 2009.

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Enterprise Associations

• Police Association Salaried Officers’ Union of NSW

- applied for registration as an enterprise association s. 18(c)

- registered 15 January 2015

- employees of Police Association of NSW

- registered in NSW

- Police Federation of Australia listed as federal counterpart in Sch. 1A.

• Industrial Staff Union – PSA of NSW

- applied for registration as an association of employees s. 18(b)

- registered 17 February 2014

- employees of Public Service Association of NSW

- no federal counterpart listed

• Australian Aircrew Officers Association

- applied for registration as an association of employees s. 18(b)

- registered 1 October 2013

- flight crew officers employed by Cathay Pacific

- no federal counterpart listed

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state unions

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