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

Alteration of eligibility rules - Application by the Australian Workers' Union for consent to alter eligibility rules under s 158 of the Fair Work (Registered Organisations) Act 2009 (Cth) - Persons employed in connection with skydive operations - Resolution of potential objection on the basis that an amendment be made to narrow proposed rule change- Consent granted.

• [1] On 25 July 2025, the Australian Workers' Union (the AWU) applied, pursuant to s 158 of the Fair Work (Registered Organisations) Act 2009 (Cth) (the RO Act) for consent to alter its eligibility rules. The application was filed with a statutory declaration of Paul Farrow, National Secretary of the AWU, dated 16 July 2025. The AWU also filed a supplementary statutory declaration of Mr Farrow dated 20 August 2025. The application sought consent to alter the AWU's eligibility rules to include persons engaged in or in connection with skydive operations.

• [2] On 29 August 2025, the Executive Director of the Australian Federation of Air Pilots (the AFAP), Simon Lutton, notified the AWU that the AFAP intended to object to their application where the proposed rule change may be construed to include pilots. The National Legal Officer of the AWU, Simon Miller, responded to Mr Lutton on the same day and indicated that the AWU did not intent to cover pilots engaged in skydive operations and undertook to provide the AFAP with a copy of an amended proposed rule expressly excluding coverage of pilots. On 23 September 2025 the AWU provided the AFAP with this amended proposed rule change which would add the words "excluding pilots" to the text of the proposed eligibility rule. Also on 23 September 2025, Mr Lutton indicated that the amended proposed rule change removed AFAP's concern about the AWU's rule change application and that the AFAP did not seek to file a formal objection on 24 September 2025.

• [3] The AWU filed an amended application on 24 October 2025, seeking to alter the eligibility rules of the AWU to cover "all persons engaged in or in connection with skydive operations (including indoor skydiving) excluding pilots". On 28 October 2025, I conducted a case management hearing in relation to the matter and directed the AWU to file a further statutory declaration in support of the amended application. On 30 October 2025, the AWU filed the declaration of Christopher Donovan, Assistant National Secretary, setting out the correspondence with the AFAP and the steps taken to obtain the authorisation of the AWU's National Executive for the amendment to the proposed rule change.

• [4] Rules 5, 6A, 6B, 6C and 6D of the Rules of the Australian Workers' Union (AWU Rules) sets out the eligibility for membership. The amended application identifies the proposed alteration as follows:

The AWU seeks consent to alter its eligibility rules by inserting the following as a new Rule 5, Section 6, Part Q (32)(k) to new (l):

(k) All persons engaged in or in connection with skydive operations (including indoor skydiving), excluding pilots.

(l) Notwithstanding anything else in these rules ...

• [5] In support of its application, the AWU submits that it has coverage of employees engaged in skydiving operations in Queensland pursuant to Rule 6A(4)(31B) of the AWU Rules which refers, among other things, to "[a]ll employees employed in any kind of amusement, whether outdoor or indoor". It also contends that this coverage has been affirmed by the Fair Work Commission in The Australian Workers' Union v Experience Co Admin Pty Ltd [2024] FWC 3118. The AWU submits that the proposed amendment would enable full industrial representation of these employees throughout Australia in circumstances where they are not presently covered by any other union.

• [6] Section 158 of the RO Act governs change to the name or eligibility rules of a registered organisation, 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.

• [7] An application made pursuant to s 158(1) of the RO Act must comply with the requirements of regulation 121 of the Fair Work (Registered Organisations) Regulations 2009 (Cth) (the RO Regulations). Based on the amended application, the statutory declarations of Mr Farrow dated 1 July 2025 and 20 August 2025 and the statutory declaration of Mr Donovan dated 30 October 2025, I am satisfied that the requirements of regulation 121 have been met.

• [8] Section 158(2) provides that the Commission must not consent to a change or alteration to the eligibility rules of an organisation unless the Commission is satisfied that the alteration has been made in accordance with the rules of the organisation. Rule 25 of the AWU rules deals with the process of amending the organisation's rules in circumstances when the National Conference is not sitting, as follows:

(1) The National Executive, subject to the review of its actions by National Conference, has the care, control, superintendence, management and administration in all respects of the affairs, business, funds and property of the Union and without limiting the generality of the foregoing it has the power duty or function to;

(i) suspend the policy laid down by National Conference or any portion thereof;

(ii) Make such Rules and other provisions or to rescind or vary existing Rules;

• [9] The statutory declaration of Mr Farrow identified that, as the National Conference did not sit on 18 and 19 March 2025, the National Executive had the power to amend the eligibility rule as described in the application. Mr Farrow's declaration sets out that members of the National Executive were notified of the meeting on 18 and 19 March 2025 by circular distributed on or around 20 November 2024 by the Acting National Secretary and the National President. The meeting date was set by the National Secretary and National President consistent with Rule 24(6) and notice of the meeting was given in accordance with Rule 24(7). Mr Farrow declares that the resolution was approved by all 18 members of the National Executive meeting the requirement of approval by no less than two thirds of the total number of votes allowed to members of the National Executive, and in accordance with Rule 28 of the AWU's rules, where there was a quorum. As such, I am satisfied that the initial form of the alteration was made in accordance with the AWU's rules.

• [10] The AWU now asks the Commission to approve the alteration in its amended form with the addition of the words "excluding pilots". The capacity of the Commission in s 158(2) 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.[1] The additional words added by the amendment in this matter plainly narrow the effect of the alteration. Accordingly, the Commission can consent to the alteration in its amended form without being satisfied that the AWU has again approved the amended form of the alteration in accordance with its rules.

• [11] 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. Formation of the opinion required by s 158(4) 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.[2] The Commission must then consider whether there is another organisation to which those persons could more conveniently belong and that would more conveniently represent those members.

• [12] The AWU submits that it presently has coverage of individuals engaged in skydive operations in Queensland, and that the effect of the alteration would be to "permit the AWU to provide the same representation to employees in other states and territories who are currently without union representation as there are no unions that cover this type of work". The class of employees who will become eligible to join the AWU because of the proposed alteration can be described as persons engaged in or in connection with skydive operations outside of Queensland (including indoor skydiving) other than pilots. Following correspondence between AFAP and the AWU set out in paragraphs [2]-[3] of this decision and the filing of the AWU's amended application, there are no objections to the AWU's proposed alteration. On the information available to the Commission, I am satisfied there is no other organisation to which those persons who will become eligible to be members of the AWU could more conveniently belong and that would more effectively represent those members for the purposes of s 158(4) of the RO Act.

• [13] For those reasons, the Commission is able to consent to the alteration to the AWU'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 any agreement or understanding concerning the representational rights of the AWU. 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 issue raised by the AFAP and the cooperative manner in which the AWU and the AFAP approached the matter. 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).

• [14] The Commission consents to the alteration to the Rules of the AWU in the form contained in the amended application filed on 24 October 2025. Pursuant to s 158(9)(a), I specify that the alteration will take effect on and from 1 December 2025.

[1] Application by the Australian Licenced Aircraft Engineers Association [2014] FWC 3658 at [17]- [18]; Application by the Australian Institute of Marine and Power Engineers [2025] FWC 1182 at [14]- [18].

[2] 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].

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