Ambulance Employees Association of Western Australia v United Workers' Union [2024] FWCFB 451

Ambulance Employees Association of Western Australia v United Workers' Union [2024] FWCFB 451 | Case summary | Zoe

[12]

[6] Rules 11 and 12 sets out the AEA eligibility of employees and officers of the AEA and independent contractors. The AEA's rules limit eligibility for membership to persons in Western Australia. The evidence filed by the AEA indicated that it has no plans to operate in any other State or Territory.

[7] The AEA currently has approximately 1,079 members. At the time of the hearing before the Deputy President, all but three members of the AEA were employed by St John Ambulance. The evidence indicated that those three members had left their employment with St John Ambulance and were now employed performing ambulance work for other employers. The three employees remained members of the AEA despite working for other employers.

[8] On 15 August 2023, the AEA applied for registration. The application was made by completing a Form F56 entitled "Application by an association of employees (other than an enterprise association) for registration as an organisation". The application referred to s 18(b) of the RO Act being a reference to a "federally registrable association of employees". The application did not, on its face, suggest that the AEA was seeking to be registered as a "federally registrable enterprise association" for the purposes of s 18(c) of the RO Act.

[9] On 6 December 2023, the UWU lodged an objection to the application. On 7 March 2024, the UWU applied under s 587(1)(c) of the FW Act for the application to be dismissed on the ground that it had no reasonable prospects of success. The UWU contended that the AEA could not be registered under s 19(1) of the RO Act because that section applied only to registration of associations "other than an enterprise association". The AEA was, the UWU asserted, an enterprise association within the meaning of s 18C(1) of the RO Act.

[10] The AEA, in turn, sought that the Commission dismiss the UWU's application. The AEA contended that the UWU's standing to participate in the proceedings was limited by regulation 23 of the Fair Work (Registered Organisations) Regulations 2009 (Cth) (the RO Regulations) to pursuing its objection lodged in accordance with that regulation. The AEA contended that the UWU did not have standing to apply to have the application dismissed in accordance with s 587 of the FW Act.

[11] The Deputy President conducted a hearing in relation to the application on 17 June 2024. At the outset of the hearing, the Deputy President suggested to the parties that he would put to one side the objection as to the UWU's standing and determine whether the application had reasonable prospects of success on the Commission's own initiative pursuant to s 587(3) of the FW Act. At the conclusion of the hearing, the Deputy President handed down his decision and gave ex tempore reasons. The Deputy President subsequent published his reasons.

[12] The Deputy President considered that it was common ground that the AEA is an enterprise association as defined in s 18C(1) of the RO Act and that, as a consequence of certain changes in the composition of its membership, the AEA is no longer a federally registrable enterprise association.[2] The Deputy President did not accept the submission advanced by the AEA that an enterprise association can apply for registration either under s 18(b) or (c) of the RO Act.[3] In any event, the Deputy President concluded that there remained an insurmountable impediment to the application in that the requirements of s 19 could not be satisfied because the words "other than an enterprise association" make clear that an application can only be granted under s 19 if it is made by an association that is not an enterprise association.[4]

[13] The AEA seeks permission to appeal and to appeal from the decision of the Deputy President. Permission to appeal should be granted. In our opinion, it is in the public interest that permission to appeal be granted for the purposes of s 604(2) of the FW Act. The appeal raises a novel and important question in relation to the requirements imposed by the RO Act for an association of employees to become registered. That question should be considered by the Full Bench. The application is of obvious importance to the AEA and, if it has been wrongly prevented from obtaining registration, that should be rectified.

[14] The manner in which the Deputy President disposed of the AEA's application for registration was perhaps unusual. The application was dismissed on the basis that it did not have reasonable prospects of success. The UWU filed a notice of contention to the effect that the AEA's application was incompetent because it is an enterprise association and cannot apply for registration under ss 18(b) and 19(1). On hearing of the appeal, the parties accepted that, in effect, the course taken by the Deputy President was to determine a preliminary question as to whether the AEA was able to be registered as an organisation. If that question is answered adversely to the AEA's submissions, it is fatal to its application and it was appropriate for the application to be dismissed. In those circumstances, it is unnecessary to separately deal with the UWU's notice of contention. It is sufficient to consider whether the Deputy President was correct to find that the AEA could not become registered.

[15] Although permission to appeal should be granted, for the reasons that follow, the decision of the Deputy President is correct. The AEA is not able to become registered under the RO Act with its current membership either as an association of employees for the purposes of s 18(b) or an enterprise association for the purposes of s 18(c).

[57]

[30] The AEA's notice of appeal contains seven somewhat overlapping grounds of appeal. Although no amended notice of appeal was filed, the AEA's written submissions rely on only two grounds of appeal. The first ground is that the Deputy President erred in finding that the AEA was an "enterprise association" within the meaning of s 18C(1) of the RO Act. The second ground is derivative of the first and alleges that the Deputy President erred in finding that the AEA's application had no reasonable prospects of success because it is, in fact, a federally registrable association of employees for the reasons advanced in relation to the first ground.

[31] The impediment facing the AEA's application is twofold. First, it accepts that, by the time of the hearing before the Deputy President, it was not a federally registrable enterprise association as a result of the fact that three of its members were not employees performing work in the enterprise of St John Ambulance for the purposes of s 18C(3)(a). As such, it could not satisfy the requirements which must exist for the Commission to be required to grant the application for registration under s 20 of the RO Act because the AEA was not an enterprise association that was able to apply for registration as an organisation under s 18 for the purposes of s 20(1) or a "genuine association of a kind referred to in paragraph 18(c)" for the purposes of s 20(1)(a)(i). Second, the words in parentheses in s 19(1) dictate that the Commission must grant an application for registration made by an association under that section other than an enterprise association. If the AEA is an enterprise association then, on the face of s 19(1), the Commission is not required or able to grant its application for registration as an organisation under that section either. If it is an enterprise association, but not a federally registrable enterprise association, its application for registration cannot be granted.

[32] The consequence is that the central issue raised by the AEA's appeal is whether it is an "enterprise association" for the purposes of s 18C(1). It will be recalled that an enterprise association is defined as an association the majority of the members of which are employees performing work in the same enterprise. The AEA does not dispute that, at the time of hearing before the Deputy President, the overwhelming majority of its actual members were employees performing work for St John Ambulance. It says, however, that the terms "member" or "members" in s 18B and 18C of the RO Act do not require the Commission to make a finding of fact about the actual membership status of the flesh and blood persons who are members of an association at the time of application.

[33] Rather, the AEA submits that whether some or all of the members of an association are federal system employees for the purposes of s 18B(1)(b) or a majority of members of an association are employees performing work in the same enterprise for the purposes of s 18C(1) is answered by reference to the association's rules. It points out that the AEA's rules do not limit its membership to employees of St John Ambulance and its eligibility rules extend to employees in or in connection with the ambulance industry anywhere in the Western Australia and to persons who work in various occupations anywhere in Western Australia. If the assessment is made by reference to its rules with respect to membership rather than its actual flesh and blood members, the AEA submits that it is an association that is federally registrable under s 18B(1)(b) and not an enterprise association for the purposes of s 18C(1).

[34] The AEA places considerable reliance, in this regard, on the judgments of members of the Full Court of the Federal Court in Australian Education Union v Lawler [2008] FCAFC 135; (2008) 169 FCR 327 (AEU v Lawler). That decision involved a challenge to decisions of the Commission granting an application for registration by the Australian Principals Federation. One question raised in those proceedings concerned whether the Australian Principals Federation was eligible to apply for registration in circumstances in which its rules, properly construed, permitted a person to remain as a member even though the person had ceased to be an employee capable of being engaged in an industrial dispute.

[35] The relevant provisions governing the registration of associations considered in AEU v Lawler were found in Schedule 1B to the Workplace Relations Act 1996 (Cth) as it existed prior to the amendments made by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (the Work Choices Act). At that time, s 18(1)(b) of Schedule 1B provided:

[73]

[40] A number of considerations were said to favour the conclusion that the determination of whether an association was capable of applying for registration under s 18(1)(b) of Schedule 1B was to be undertaken by reference to the categories of persons eligible to become members of the association in accordance with its rules rather than the actual membership at the time the application was determined. Jessup J noted that it was unlikely Parliament intended to create a condition precedent to registration based on membership in a manner that would permit the membership of the association, once registered, to alter materially and bring into existence an association of a materially different character which did not meet the requirements for registration.[8] His Honour also noted that the "more conveniently belong" criteria now found in s 19(1)(h) was applied by reference to the genus of person who might belong to the applicant association rather than its actual members.[9]

[41] The essential submission advanced by the AEA is that, if the rules-based analysis adopted in AEU v Lawler is followed and applied to what is now s 18C(1), it cannot be said that it is an association "the majority of the members of which are employees performing work in the same enterprise". The AEA notes that its eligibility rules do not confine the persons able to be members to persons performing work for St John Ambulance and do not impose any limit on the number of persons it can enrol as members of the kind referred to in s 18C(1). If the assessment is made by reference to the capacity of the AEA to accept persons as members, it is not an enterprise association as defined in s 18C(1) of the RO Act.

[42] The UWU, on the other hand, submits that the flaw in the reasoning of the AEA is that it fails to pay appropriate attention to other parts of the relevant provision which can only be read as referring to "flesh and blood" members. In particular, the definition of an enterprise association in s 18C(1) refers to "an association the majority of members of which are employees performing work in the same enterprise". The UWU submits that the reference to the majority of members of an association is a clear indication that the section requires examination of the actual members of the association. The UWU further submits that the provision in s 18C(3)(a) that an enterprise association is not federally registrable "if it has a member who is not an employee performing work in the relevant enterprise" is also an indication that the section is referring to flesh and blood members.

[43] The issue raised by these submissions involves, obviously enough, a question of statutory construction. The principles that govern the task of statutory construction are well-settled and not disputed in the present appeal. A statutory provision is to be construed by considering the words used read in their context. "Context" encapsulates surrounding statutory provisions, the mischief that the statute is intended to remedy, the provision's purpose or policy, and extrinsic materials, including legislative history.[10] Context is to be considered in the first instance, but must be understood to be a tool that assists in fixing the meaning of the statutory text. In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, for example, French CJ, Hayne, Crennan, Bell and Gageler JJ explained (at [39]):

[76]

[46] In our opinion, the text of s 18C does not support the AEA's submissions. The stipulation, in s 18C(1), that an enterprise association is an association the majority of the members of which are employees performing work in the same enterprise is difficult, if not impossible, to reconcile with an approach that focuses on the categories of employees capable of being members of an association rather than its actual membership at a point in time. The reference to "the majority of the members" invites a numerical assessment of whether more than half of the association's members perform work in the same enterprise. It is difficult to conceive of how one would even begin to assess whether a majority of the class of persons falling within the theoretical membership of an association are employees performing work in the same enterprise.

[47] That view is reinforced when regard is had to other parts of s 18C. In particular, s 18C(3) provides that an enterprise association is not federally registrable if it "has a member" who does not fall within one of the categories in subparagraphs (a) to (d). The reference to an association that "has a member" falling outside the designated categories of persons can only be understood to be a reference an actual member. The AEA apparently acknowledges that this is so. It accepts that it was not, at the time of the hearing before the Deputy President, a federally registrable enterprise association because it had three specific named members who were not then employees performing work for St John Ambulance. If s 18C(3) operates by reference to actual flesh and blood members, there is no obvious reason why s 18C(1) should not also be construed as referring to a majority of the actual membership of the association.

[48] If the AEA's construction is correct, the only circumstance in which an enterprise association could exist would be if the rules of the association specified that at least a majority of its members must, at any point in time, be employees performing work in the same enterprise. The AEA referred the Full Bench to a number of examples of organisations whose rules limited membership to persons employed by a particular employer or enterprise.[17] It is certainly possible for an association's eligibility rules to provide that a person is entitled to be a member only if employed by a particular employer. That type of association would fit within the definition in s 18C(1) on the AEA's construction.

[49] However, that does not answer the practical difficulty in applying s 18C(1) if the AEA's construction is correct. Section 18C(1) is drafted at least in contemplation that there will be associations that fall within the definition because the majority but not all its members perform work within the same enterprise. The AEA did not refer the Full Bench to any union that has, or has ever had, rules that define those persons eligible to become members by requiring that a majority of members must be employed by a particular employer or enterprise. It is difficult to envisage how such a rule could be drafted or operate in a practical manner. If the rules of an association permitted acceptance of members performing work in other enterprises but also required that a majority perform work for one enterprise, the rules would presumably need to automatically purge members or permit it to refuse applications for membership in the event that the changing composition of its membership threatened to result in less than a majority of members being employed to perform work in the same enterprise. It is unclear how such a rule could operate in practice or could be consistent with the entitlement of a person who is eligible to become a member of an organisation to be admitted and remain as a member.[18] This provides a further reason why the reference to "the majority of members" in s 18C(1) must be understood as referring to actual membership rather than the category of persons eligible to become a member of the association.

[50] For these reasons, the text of s 18C(1), understood in the context of that section as a whole, does not support the construction advanced by the AEA. The requirement that the majority of members of an enterprise association be employees performing work in the same enterprise strongly suggests that the examination is directed at the actual members of the association rather than the categories of person eligible to become members.

[95]

[58] The extrinsic materials associated with the amendments made in 2006 and 2007 provide no direct explanation in relation to these changes.[19] No explanation is provided as to why the reference to "some or all members" was changed by the Work Choices Act to a reference to "the majority of members" in ss 18B(1)(b), 18C(1) and 18C(2)(b). No explanation is provided as to why ss 18B(1)(b) and 18C(2)(b) were changed back, but s 18C(1) retained the requirement that "the majority of members" be employees performing work in the same enterprise. No obvious purpose is revealed by the terms of the legislation either. To say that the legislative history is opaque is a considerable understatement.

[59] The AEA relies upon subsequent amendments that were made by the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the Transitional Provisions Act) to address the ramifications of AEU v Lawler. The Explanatory Memorandum to that Act refers to the decision in AEU v Lawler. The Explanatory Memorandum indicates that ss 26A and 171A were enacted to address the uncertainty created by AEU v Lawler in relation to the registration of organisations that did not have a rule that automatically purged from membership persons who ceased to be employees and to ensure that, going forward, the membership of persons who would cause the organisation to not be federally registrable immediately ceases by operation of the legislation.[20]

[60] The AEA suggests the explanation of the enactment of ss 26A and 171A demonstrates that the legislature was aware of the decision in AEU v Lawler and that there is no indication that Parliament intended to upset the understanding of the concept of a "member" or "members" established by that decision. The difficulty with the submission is that ss 26A and 171A were incorporated into the RO Act by later amendment some years after the amendments in 2006 and 2007 which enacted ss 18B and 18C in their current form. Section 18C(1) used, and continues to use, different language to that found in ss 18(1)(b) and 18(1)(c) considered in AEU v Lawler by linking the definition of an enterprise association with the nature of the work performed by "the majority of members". The fact that Parliament appears to have been aware of the decision when making other amendments at a later date does not assist in construing s 18C(1) itself.

[61] The legislative history does not, in our opinion, permit an inference to be drawn that Parliament intended to retain the approach in AEU v Lawler in s 18C(1). The language used in s18C(1) is different to that language considered by the Full Court. The insertion of reference to "the majority of members" is materially different to the provisions considered in AEU v Lawler. For the reasons we have explained, it is difficult, if not impossible, to apply the reasoning of the Full Court to the language now found in s 18C(1). Furthermore, the amendments in 2006 and 2007 which enacted ss 18B and 18C in their current forms were made prior to the decision in AEU v Lawler being handed down. Those amendments cannot have been informed by a desire to retain or discard the approach adopted by the Full Court. The reenactment presumption[21] is inapplicable in those circumstances. Parliament cannot be presumed to have intended that the approach in AEU v Lawler be applied to amended provisions that were already in place. Section 18C(1) must simply be construed in accordance with its terms understood in the context of the RO Act as a whole.

[102]

[64] The AEA submits that the construction for which it contends avoids a number of inconvenient or absurd outcomes. First, at least one consequence of the construction adopted by the Deputy President is, at first blush, surprising. An association of employees more than 50 percent but less that 100 percent of the members of which are employees performing work in the same enterprise would be unable to be registered at all. Such an association would fall within the definition of an "enterprise association" in s 18C(1) but would not be a federally registrable enterprise association by operation of s 18C(3)(a) because it has members who are not employees performing work in the relevant enterprise (and otherwise do not fall within the categories of person in s 18C(3)). It could not, as a result, be registered under s 20. It could also not be registered as an association of employees under s 19 because it is still an "enterprise association" and is excluded by the proviso in parentheses in s 19(1).

[65] On one view, that outcome could be regarded as arbitrary and perhaps unfair to some associations. It would, for example, permit an association 49 percent of the members of which are employees performing work within the same enterprise to become registered but an association with 51 percent of members performing work in the same enterprise could not be registered. However, we are ultimately unable to accept that this outcome can be described as absurd. There is some difficulty in discerning the statutory purpose of the majority requirement in s 18C(1) and, as we have observed, the extrinsic materials do not assist. It is not impossible, though, to imagine rational reasons why the provision may have been adopted. The legislation requires that, to become registered, an association must either be an enterprise association which is confined to members performing work in a single enterprise (and subject to the restrictions that apply to an enterprise association) or that an association have a diversity of membership such that it is not dominated by members performing work in one enterprise. It is not necessarily irrational for Parliament to have enacted that structure. Where there is room for different views as to whether the consequences of a literal interpretation are truly anomalous or are reflective of a legitimate policy choice, it is not appropriate for the allegedly harsh consequences of a literal interpretation to be deployed to displace the ordinary meaning of the text of the statute.[24]

[66] We also do not accept that the outcome of the construction adopted by the Deputy President is inconsistent with the objects of the RO Act. The AEA relies on s 5(3)(e) which indicates that the standards contained in the RO Act "facilitate the registration of a diverse range of employer and employee associations" and s 5(4) that indicates it is also the intention of Parliament to "assist employers and employees to promote and protect their economic and social interests through the formation of employer and employee organisations, by providing for the registration of those associations". The articulation of the intention of Parliament in s 5 in general terms does not suggest that the RO Act guarantees registration to any association. The RO Act, and predecessor legislation, has always imposed a range of restrictions on the type and features of an association that can become registered. Reference to the object of facilitating the registration of associations does not assist in construing the specific requirements imposed on associations seeking to become registered under ss 18B, 18C, 19 and 20.

[67] Second, the AEA contends that the construction adopted by the Deputy President means that an enterprise association registered pursuant to s 20 of the RO Act would be liable to have its registration cancelled as a result of the operation of ss 18C(3) and 30(1)(c)(v) if a single member decides to end their employment with the relevant enterprise and take up other employment. The submission is misconceived. The potential for an organisation to cease to be federally registrable was addressed by the insertion of s 171A into the legislation by the Transitional Provisions Act in 2009. The effect of s 171A(1)(c) is that a member of an enterprise association who is no longer an employee performing work in the relevant enterprise will immediately cease to be a member by operation of that section. That event causes no threat to the registration of the enterprise association.

[68] Third, the AEA submits that the approach adopted by the Deputy President means that day-to-day compositional changes in the membership of an association may mean it was entitled to be registered at the time of its application for registration but cease to satisfy the requirements at the time the application is heard and determined (because its members in one enterprise have increased, or decreased, in a way that results in a majority of flesh and blood members performing work in a single enterprise). There is nothing particularly unusual or incongruous in that outcome. Whether an association satisfies the requirements for registration must be assessed at the time its application comes to be determined.[25] No absurdity is produced by the fact that an association might, at some other point in time, satisfy the requirements for registration. The requirements for registration must be assessed when the matter comes to be determined by the Commission.

[69] There is a further consequence of the construction adopted by the Deputy President averted to by the AEA in oral submissions. On that construction, the assessment of whether a majority of members of an association are employees performing work in the same enterprise is made at the time of determination of the application for registration. As such, an association could become registered if less than 50 percent of members do so at the time of the Commission's decision and later come to have a majority of members working in the same enterprise but remain registered. That was the type of consequence that Jessup J regarded as unlikely to have been intended in AEU v Lawler.[26] However, in the context of s 18C(1), that consequence is made unavoidable by the imposition of a standard by reference to "the majority of the members". The assessment of "the majority of the members" can only feasibly be conducted by reference to the actual membership of the association at the time the application for registration is considered by the Commission. It must be assumed that Parliament was content that subsequent changes to the composition of the membership of the association which were regarded as inconsistent with continuing registration could be addressed by means of cancellation of registration under s 30 of the RO Act.

[70] The consequences of the construction adopted by the Deputy President referred to by the AEA are insufficient to warrant acceptance of the construction of s 18C(1) for which it contends. Although views might differ on whether the provisions are desirable, the consequences it refers to do not, in our opinion, rise to the level of absurdity or signal a disconformity with the purposes of the RO Act. Those consequences do not provide a basis upon which to rewrite the definition of an enterprise association in s 18C(1). The definition refers to an association the majority of the members of which perform work in the same enterprise. That phrase can only sensibly be understood as referring to a majority of the actual membership of the association at the time its application for registration comes to be considered by the Commission.

[103]

[71] For these reasons, the construction adopted by the Deputy President is correct. The question of whether an association is an enterprise association for the purposes of s 18C(1) of the RO Act must be assessed by reference to the actual membership of the association rather than the categories of persons eligible to become members. The consequence is that the AEA was an enterprise association at the time its application was dealt with by the Deputy President and, accordingly, not able to be registered under s 19(1). It accepts it was not a federally registrable enterprise association by reason of the operation of s 18C(3)(a) and was not able to be registered under s 20(1) of the RO Act. The Deputy President was correct to find that the AEA could not satisfy the requirements for registration.

[72] The Full Bench raised with the parties whether there is an alternative available construction of the RO Act that might permit the AEA to become registered. At first instance, the AEA contended that the reference to an "enterprise association" in s 19(1) should be read as a reference to a federally registrable enterprise association. If that construction was correct, an association such as the AEA, which is an enterprise association but not a federally registrable enterprise association, could seek registration under s 19(1). Such an association would need to satisfy the additional requirements for registration in s 19(1) but would at least have the potential to become registered.

[73] Although the AEA made that submission to the Deputy President, neither party embraced the construction on appeal. The parties were correct not to do so. Where the RO Act wishes to refer to a federally registrable enterprise association, it expressly says so. Section 19(1) refers only to an "enterprise association" and not to a "federally registrable enterprise association" and can only sensibly be read as encompassing any enterprise association. Furthermore, s 6 provides that "enterprise association has the meaning given by subsection 18C(1)". If that definition is applied in s 19(1), the Commission cannot grant an application for registration by any enterprise association under that section even if it is not a federally registrable enterprise association. There is no basis not to apply the definition in the context of s 19(1) and, as a result, the AEA cannot be registered under that section because it is an enterprise association as described in s 18C(1).

At a glance

Court

Decision date

Source

Judgment (135 paragraphs)

Ambulance Employees Association of Western Australia v United Workers' Union [2024] FWCFB 451 (6 December 2024)

Ambulance Employees Association of Western Australia v United Workers' Union [2024] FWCFB 451 (6 December 2024)

Parties

Legislation Cited (14)

Cases Cited (20)