s.158(1) RO Act - Application for alteration of eligibility rules

Application by the Australian Institute of Marine and Power Engineers

Alteration of eligibility rules - Application by the Australian Institute of Marine and Power Engineers for consent to alter eligibility rules under s 158 of the Fair Work (Registered Organisations) Act 2009 (Cth) - Resolution of objections on the basis of undertakings being given and amendment to the proposed alteration - Consent sought to the proposed alteration in part - Partial consent to the proposed alteration granted.

• [1] On 1 July 2024, the Australian Institute of Marine and Power Engineers (the AIMPE) applied to the Fair Work Commission (the Commission) under s 158(1) of the Fair Work (Registered Organisations) Act 2009 (Cth) (the RO Act) for consent to an alteration of AIMPE's eligibility rules. The application was accompanied by a declaration made by the Federal Secretary of the AIMPE, Martin Byrne, also dated 1 July 2024. Concurrently with the amendment made to its eligibility rules, the AIMPE made a number of other alterations to its rules. Those alterations were dealt with by a delegate of the General Manager.[1] This decision concerns the alterations to the eligibility rules of the AIPME for which consent is sought.

• [2] The existing eligibility rules of the AIMPE are contained in rules 3 and 4 of its Rules. In summary, rule 3 provides that AIMPE is registered in or in connection with the maritime industry and power generation industry and that, without limiting that description, the maritime industry includes a list of 24 types of ships and vessels. Again in summary, rule 4 provides that the AIMPE shall consist of an unlimited number of persons who are marine engineers, are eligible for engagement as engineers or electricians on ships or pursue a course of training in the marine engineering industry as well as power plant engineers defined by reference to applicable qualifications.

• [3] The effect of the alteration for which consent is sought would be to expand the scope of the inclusive definition of the maritime industry in rule 3 to add reference to an additional eleven vessel types being:

• [4] The reason given by the AIMPE for the alteration is to ensure that the list of ships and vessels in rule 3 of its Rules remains a contemporary reflection of the maritime industry as it has developed in recent years and ensure that there is a clear understanding of the variety of vessels now operating in the maritime industry. AIMPE says that it has members working on the types of vessels which are included in the proposed alteration to its Rules, at least with the exception of offshore wind industry vessels.

• [5] The application was objected to by the Community and Public Sector Union (the CPSU) and the Australian Services Union (the ASU). On 17 January 2025, the Commission received a signed copy of a memorandum of agreement between AIMPE and the ASU dated 14 January 2025 resolving the ASU's objection. As a result, the ASU's objection was withdrawn. A copy of the memorandum of agreement is attached to this decision and marked as Attachment A. The memorandum of agreed contains undertakings that are intended to be undertakings for the purposes of s 158(5) of the RO Act.

• [6] The CPSU advanced six grounds in objection to the AIMPE's application. First, that the alterations were not made in compliance with the rules of the AIMPE. Second, that the application did not comply with the RO Act. Third, that the alteration would render eligible prospective members who could more conveniently belong to and be more effectively represented by the CPSU pursuant to s 158(4) of the RO Act. Fourth, that the application would give rise to demarcation disputes, particularly with respect to APS employees in the areas AIMPE seeks to cover. Fifth, that the change is vague and uncertain and would lead to confusion. Finally, that the alteration is contrary to the objects of the Act and contrary to the public interest. Those grounds were contained in their objection filed on 16 August 2024.

• [7] The application, and the objections to the application, were listed for hearing on 2 April 2025. On 26 March 2025, my chambers were informed by Mr Byrne that agreement in principle had been reached between the AIMPE and the CPSU in relation to the CPSU objection and that the AIMPE was in the process of formally endorsing the proposed settlement position. On 28 March 2025, Mr Byrne confirmed that a majority of the AIMPE Federal Executive had approved the proposed settlement between the AIMPE and the CPSU.

• [8] The terms of the resolution between the AIMPE and the CPSU are recorded in correspondence dated 31 March 2025 addressed to Mr Byrne as Federal Secretary of the AIMPE and from the Joint National Secretary, Melissa Donnelly, on behalf of the CPSU. The agreement reached between the AIMPE and the CPSU is described as being on the following basis:

1. The AIMPE undertakes that it will not, by the application disturb the status quo as to membership, awards, and agreements between the two organisations.

1. If the application is successful the AIMPE undertakes not to enrol or otherwise seek to represent or purport to represent employees who are eligible to be members of the CPSU except for AIMPE's pre-existing coverage of persons eligible under Rule 4 - Eligibility.

1. The AIMPE will amend its application as follows:

* With respect to these identified vessel types, the Institute's coverage is limited to private sector employees only.

** With respect to Emergency towage and response vessels, the Institute's coverage is limited to private sector employees and eligible employees of the Queensland state government

*** With respect to Border Force vessels the Institute's coverage is limited to private sector employees and eligible public sector employees consistent with the AIMPE/CPSU Demarcation agreement of 10 June 2011 in C2010/5796 only.

1. Upon AIMPE filing an amended application as outlined in [3], the CPSU confirms that it will agree to withdraw its objection to the AIMPE's rule change in D2024/5.

1. The AIMPE agrees the correspondence between the unions will be provided to the Commission as part of the proceedings in D2024/5 for consideration by the Commission in its decision.

• [9] By correspondence also dated 31 March 2025, Mr Byrne confirmed that the terms of settlement were accepted by the AIMPE. Those two pieces of correspondence are attached to this decision and marked as Attachment B and Attachment C respectively. An amended application reflecting the terms of settlement was filed by the AIMPE on 1 April 2025. A short hearing was then conducted on 2 April 2025 at which the CPSU confirmed that it withdrew its objection on the basis of the agreement reached with the AIMPE.

• [10] Section 158 of the RO Act governs changes of name or alterations of eligibility rules and provides:

(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.

(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

(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.

• [11] Where an application is made under s 158(1) of the RO Act, the application must also comply with the requirements of Regulation 121 of the Fair Work (Registered Organisations) Regulations 2009 (Cth) (the Regulations). Based on the materials filed in support of the application, including the declaration made by Mr Byrne, I am satisfied that the requirements of Regulation 121 have been met.

Section 158(2) - Compliance with rules of the organisation

• [12] Section 158(1)(b)(i) of the RO Act provides, relevantly, that an alteration to the eligibility rules of an organisation does not take effect unless the Commission consents to the alteration under the section. Section 158(2) provides that the Commission may consent to a change or alteration in whole or part but must not consent unless the Commission is satisfied that the change or alteration has been made under the rules of the organisation.

• [13] Rule 38(i)(a) of the AIMPE's Rules provides that the Federal Council shall have the power to "add to, amended, rescind or otherwise alter these Rules subject to the endorsement of the financial members assembled in a special meeting of the Institute". Rule 38(i)(b) and (c) make provision for notice to be given of a proposal for adding to, amendment, rescission or other alteration to the Rules. Based on the declaration made by Mr Byrne dated 1 July 2024, I am satisfied that the alterations to the Rules of the AIMPE contained in the original application were made in compliance with AIMPE's Rules for the purposes of s 158(2) of the Act initially by the Federal Council and subsequently by special meetings of members.

• [14] The settlement of the objection made by the CPSU has involved the AIMPE proposing that consent by given to an alteration in a different form to the alteration which had been made in accordance with its Rules. However, s 158(2) permits the Commission to consent to an alteration to the rules of an organisation "in whole or in part". Authority suggests that the capacity of the Commission to consent to an alteration to the rules of an organisation "in whole or in part" permits partial consent to be given to an alteration to an eligibility rule by way of the addition of a textual limitation without it being necessary that the partial alteration be again approved in accordance with the organisation's rules. That course is possible so long as the effect of the amendment is to narrow and not to expand the effect of the alteration to the organisation's rules.

• [15] In Application by the Australian Licenced Aircraft Engineers Association [2014] FWC 3658, Hatcher VP (as his Honour then was) described the operation of s 158(2) as follows:[2]

[17] Section 158(2) provides that the Commission may consent to a change or alteration "in whole or part". Section 204(2) of the WR Act made provision to the same effect, as did the Industrial Relations Act 1988 and the Conciliation and Arbitration Act 1904. In National Tertiary Education Industry Union v Community and Public Sector Union the AIRC (Williams SDP) determined that power to consent to an alteration in part was not confined to the "blue pencil test" - that is, "the physical deletion or striking out of parts of the proposed alteration". In this respect, the AIRC followed the Full Bench decision of the Conciliation and Arbitration Commission in Re Federated Miscellaneous Workers' Union of Australia concerning s.139(2) of the Conciliation and Arbitration Act 1904, which provided in respect to alterations of eligibility rules that "The Registrar may consent to the change or alteration in whole or in part". The Full Bench said:

"The 'blue pencil' rule as it was described by Mr Northrop postulates that section 139(2) divorces from the function of the Registrar any power to alter the rules in form or in substance other than by the mere deletion of words. Taken to its logical conclusion this would mean that if an organization applied for eligibility in respect of, for example, candle-stick makers in New South Wales, Victoria, Queensland, South Australia, Western Australia, Tasmania, Australian Capital Territory and the Northern Territory the Registrar could delete the State of Victoria or such further States or Territories from the rule as he saw fit; but if the rules sought coverage for 'candle-stick makers in Australia' the Registrar would not be permitted to qualify the rule by a proviso or exception as to a State or Territory.

We consider that section 139(2) can be construed so as to allow a Registrar to amend rules in respect of which consent is sought for the purpose of consenting in part to the extension sought. The sub-section connotes a consent to the substance of the rules rather than to the form in which those rules have been drafted. Amendment by way of modification of, or qualification to, the form of the rules as drafted must be required from time to time in order to give effect to a partial consent to the substance.

However, two important factors must be borne in mind. Firstly the power to amend must be strictly confined. It can only be used, apart from `blue pencil' deletions, so as to authorise amendment which, as a matter of construction, exclude persons who would otherwise have been eligible under the rules as proposed.

Secondly, no amendment should be made by the Registrar which would be calculated to prejudice the position of an objecting organization or a potential objector to such an amendment. This is a matter to be considered in each particular case. It means no more than procedural justice should be observed in the exercise of the functions under section 139(2)."

[18] Where it has been determined that partial consent should be given to an alteration to an eligibility rule by way of the addition of a textual limitation, it was held in NTEU v CPSU and in Re Shop, Distributive and Allied Employees' Association (Boulton J) that it was not necessary that the partial alteration again be approved in accordance with the organisation's rules.

• [16] In National Tertiary Education Industry Union v Community & Public Sector Union (1999) 93 IR 365, which was one of the authorities referred to by Hatcher VP, Williams SDP said in relation to the equivalent provision of the then Workplace Relations Act 1996 (Cth):[3]

Section 204(2) also imposes an obligation upon a designated Presidential Member to refuse to give consent unless "satisfied that the ... alteration has been made under the rules of the organisation". However, before a designated Presidential Member consents to an application in part, it is not necessary that:

"the precise form of the partial alteration be made through the procedures prescribed in the rules of the applicant organisation. It is sufficient that the alteration before the [designated Presidential Member] has been adopted in accordance with the procedures laid down in the organisation's rules and that the partial consent is given within the scope of that proposed alteration."

Subject, therefore, to procedural justice being properly applied, consent in part may be given where the amendments have the effect of narrowing and not extending the scope of the alterations originally sought by the applicant

• [17] In this matter, the amendment to the form of the alteration to the AIMPE's Rules for which consent is sought has the effect of adding three provisos to the types of vessels to be identified as part of the maritime industry in rule 3. The first proviso limits the AIMPE's coverage with respect to certain types of vessels to private sector employees only, the second proviso limits its coverage with respect to emergency towage and response vessels to private sector employees and eligible employees of the Queensland state government and the third proviso limits its coverage with respect to Border Force vessels to private sector employees and eligible public sector employees consistent with the AIMPE/CPSU Demarcation agreement of 10 June 2011 in C2010/5796.

• [18] It is readily apparent that the amendments to the alteration approved by the Federal Council and special meetings of AIMPE's members have the effect of narrowing and not extending the scope of the alterations for which consent was initially sought. In those circumstances, it is not necessary that the amended form of the alteration be again made in accordance with the AIMPE's Rules and it is open to the Commission to give consent to the alterations in part for the purposes of s 158(2) of the RO Act.

Section 158(4) - More conveniently belong and more effectively represent

• [19] Section 158(4) of the RO Act provides that the Commission 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 Commission, another organisation to which the persons who would be eligible for membership because of the alteration could more conveniently belong and that would more conveniently represent those members.

• [20] Formation of the opinion required by s 158(4) ordinarily requires that the Commission identify the class of "persons who would become eligible to join the applicant association because of the proposed alteration" in order that the assessment as to whether the condition in subsection (4) is satisfied proceeds on the correct basis.[4] The Commission must then consider whether it can form the opinion that there is another organisation to which those persons could more conveniently belong and that would more conveniently represent those members.

• [21] In this matter, the class of person who would become eligible to join the AIMPE as a result of the alteration to its Rules is not clear. The AIMPE's primary position is that the alteration to its rules would not actually expand the class of persons who would be eligible to become its members. However, it is unnecessary to resolve that question. That is because s 158(5) provides that subsection (4) does not apply if the Commission accepts an undertaking from the organisation seeking the alteration that the Commission consider appropriate to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of that organisation and another organisation. The effect of the Commission accepting an undertaking under s 158(5) is that subsection (4) is rendered inapplicable.[5]

• [22] In this matter, the AIMPE has agreed to give the undertakings recorded in the memorandum of agreement with the ASU dated 14 January 2025 and in the correspondence between the AIMPE and the CPSU dated 31 March 2025. In general terms, the AIMPE undertakes not to disturb the status quo as to membership, awards, and agreements between the respective organisations and not to enrol or otherwise seek to represent or purport to represent particular employees who are eligible to be members of the other organisations except for AIMPE's pre-existing coverage of persons eligible under Rule 4 - Eligibility. The undertakings contained in the memorandum of understanding made with the ASU also contain a commitment in relation to the resolution of any disputes that might arise and the agreement with the CPSU includes agreement to amend the alteration to avoid areas which might give rise to demarcation disputes in the manner that has been described above.

• [23] Having considered the whole of the circumstances, the evidence which has been placed before the Commission and the submissions of the parties, I am satisfied for the purposes of s 158(5) of the RO Act that the undertakings are appropriate to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of the AIMPE and the ASU and the AIMPE and the CPSU. As a result, it is unnecessary to address the question posed by s 158(4).

• [24] For those reasons, the Commission is able to consent to the alteration to the AIMPE's eligibility rules in accordance with s 158(2) and (4) of the RO Act. There is nothing before me to suggest that the alteration would contravene an agreement or understanding concerning the representational rights of the AIMPE, particularly in light of the express recognition of the AIMPE/CPSU Demarcation agreement of 10 June 2011 in the amended form of the alteration. Nor is there any basis to indicate that the alteration would change the effect of any demarcation order made by the Commission or give rise to a serious risk of a demarcation dispute, particularly given the resolution of the objections made by the ASU and the CPSU. Accordingly, there is no basis upon which I could exercise the discretion to refuse the application under s 158(6) or (7). There is no other discretionary basis upon which the application should be refused under s 158(8).

• [25] The Commission consents to the alteration to the Rules of the AIMPE in the form contained in the amended application filed on 1 April 2025. A copy of rule 3 of the Rules of the AIMPE, as amended by this application, is attached and marked as Attachment D.

• [26] Pursuant to s 158(9)(a), the alteration will take effect on and from the date of this decision.

M Byrne, Federal Secretary, for the Australian Institute of Marine and Power Engineers.

K Barlow and S Deguara, Legal Officers, for the Community and Public Sector Union.

[1] Australian Institute of Marine and Power Engineers, The [2024] FWCD 1065.

[2] Application by the Australian Licenced Aircraft Engineers Association [2014] FWC 3658 at [17]- [18]. See also Australian and International Pilots Association [2025] FWC 632 at [14].

[3] National Tertiary Education Industry Union v Community & Public Sector Union (1999) 93 IR 365 at [170]-[171].

[4] Re Australian Workers' Union; Ex parte Construction, Forestry, Mining and Energy Union [2002] FCAFC 150; (2002) 120 FCR 527 at [43]- [44] (Gray & Moore JJ); Australian Rail, Tram and Bus Industry Union v Transport Workers' Union [2020] FWCFB 3200 at [72].

[5] Re Liquor, Hospitality and Miscellaneous Union [2010] FWAFB 9594 at [13].

Printed by authority of the Commonwealth Government Printer