Application/Notification by The Australian Furniture Removers Association Incorporated

Application for registration by the Australian Furniture Removers Association Incorporated.

[1] The Australian Furniture Removers Association Incorporated (AFRA, the association) lodged an application in the Australian Industrial Registry on 6 December 2007 for registration as an organisation under Section 18 of Schedule 1 - Registration and Accountability of Organisations (the RAO schedule) of the Workplace Relations Act 1996 (the Act).

[2] The criteria for registration of associations (other than enterprise associations) are set out in Section 19 (1) of the RAO schedule. This section states as follows:

"19 Criteria for registration of associations other than enterprise associations

(1) The Commission must grant an application for registration made by an association (other than an enterprise association) that, under section 18, may apply for registration as an organisation if, and only if:

(i) is a genuine association of a kind referred to in paragraph 18(a) or (b); and

(ii) is an association for furthering or protecting the interests of its members; and

(b) in the case of an association of employees - the association is free from control by, or improper influence from, an employer or by an association or organisation of employers; and

(c) in the case of an association of employers - the members who are employers have, in the aggregate, throughout the 6 months before the application, employed on an average taken per month at least 50 employees; and

(d) in the case of an association of employees - the association has at least 50 members who are employees; and

(e) the Commission is satisfied that the association would conduct its affairs in a way that meets the obligations of an organisation under this Schedule and the Workplace Relations Act; and

(f) the rules of the association make provision as required by this Schedule to be made by the rules of organisations; and

(g) the association does not have the same name as that of an organisation or a name that is so similar to the name of an organisation as to be likely to cause confusion; and

(h) 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; and

(i) the registration of the association would further Parliament's intention in enacting this Schedule (see section 5) and the object set out in section 3 of the Workplace Relations Act; and

(j) subject to subsection (2), there is no organisation to which members of the association might belong or, if there is such an organisation, it is not an organisation:

(i) to which the members of the association could more conveniently belong; and

(ii) that would more effectively represent those members."

[3] Further requirements for registration are set out in Regulation 21 of the Workplace Relations (Registration and Accountability of Organisations) Regulations 2003 (the regulations). They are as follows:

"21 Application for registration (RAO Schedule, s 18)

(1) An application by an association under section 18 of the RAO Schedule for registration as an organisation must:

(a) be in the form set out in the Rules of the Commission or in a form otherwise approved by the President; and

(b) contain a declaration, made by an officer of the association authorised to make the declaration, verifying the facts stated in the application and in any document lodged with the application; and

(i) a list of the members of the association, showing the name and postal address of each member;

(ii) a list of the offices in the association and in each branch of the association;

(iii) a list of the names, postal addresses and occupations of the persons holding the offices;

(iv) a list of the branches of the association, showing for each branch its name and the location of its office;

(v) the rules of the association and the rules of each of its branches;

(vi) a copy of a resolution in favour of the registration of the association as an organisation passed in accordance with the rules of the association by a majority of the members of the association present at a general meeting of the association or by an absolute majority of the committee of management of the association.

(2) An association applying for registration may lodge in the Industrial Registry an additional statement supporting the application."

[4] The application lodged on 6 December 2007, was accompanied by a range of documents including "The Rules of the Association" and "A copy of a resolution in favour of the registration of the association as an organisation passed in accordance with the rules of the association by a majority of the members of the association present at a general meeting of the association".

[5] The application also contained statutory declarations signed by the Executive Director and an Executive Member of AFRA (the officers) which, inter alia, included the following:

"2. I verify that the facts set out in the application by the Association for registration as an organisation are true and correct to the best of my knowledge and belief.

3. I verify that the facts set out in each of the documents accompanying the application by the Association of the registration as an organisation of employees are true and correct."

[6] On 23 January 2008, a notice was published in the Commonwealth of Australia Gazette that an application had been made under the Act for the registration of AFRA as an organisation of employers. The notice included the eligibility rules of the association and advised that interested organisations, associations or persons could lodge notices of objection within 35 days.

• The Transport Workers' Union of Australia (TWU);

• The Victorian Employers Chamber of Commerce and Industry (VECCI); and

• The Australian Road Transport Industrial Organisation (ARTIO).

[8] The application was listed by the Commission for mention and programming on 8 April 2008. During this hearing an initial issue was raised. In particular, it was apparent that the rules lodged with the application on 6 December 2007 were not the current rules of the association, but were the rules the association had resolved to adopt from the time the application for registration was granted.

[9] Following the hearing, the Commission directed the applicant and objectors to make written submissions on the following threshold issue:

"Whether The Australian Furniture Removers Association Incorporated is able to satisfy the criteria for registration under s.19 of Schedule 1 of the Workplace Relations Act 1996, or the requirements of for registration under Regulation 21 of the Workplace Relations (Registration and Accountability of Organizations) Regulations 2003, on the basis of rules that would only come into effect on registration, rather than the rules of the association as they are currently in effect."

[10] Submissions in response to these directions were subsequently received from the association and the objectors.

[11] The association submitted that the words "the rules of the association" in Section 19 of the RAO schedule "can only mean the rules as they will apply post registration". Four arguments were put in support of this proposition:

• Sub-clause (d)(v) of Regulation 21 has to be read in the context of sub-clause (i) through (iv) which refer to requirements which apply following registration;

• The Commission has no "jurisdictional interest" in matters such as the rules of an association unless and until the organisation falls under the jurisdiction of the Commission as a result of its registration;

• The rules that existed prior to registration were adopted for reasons other than for registration. The rules have to be varied and adopted to satisfy the requirements of the Act to which the association will become responsive following its registration as an organisation;

• The word "rule" should be given its "proper and ordinary" meaning in the context within which it is used. Clause (1)(b) of Regulation 19 contains a reference to the "rules of the organisation" meaning a registered organisation.

[12] These arguments are less than convincing.

[13] In relation to the first argument, there is no reason to infer that the information that is required in sub-clauses (d)(i) to (iv) of Regulation 21 concerning members, officials and branches of the association refer to requirements which apply only after registration. Therefore they cannot provide a context which leads to a conclusion that the "rules" referred to in sub-clause (d)(v) are not the rules of the association that apply at the time an application is made for registration.

[14] The second argument simply amounts to an assertion that the Commission only has an interest in what rules an association has after it is registered.

[15] The third argument amounts to an acknowledgement that an association may have to amend its rules to meet the obligations imposed by registration.

[16] The fourth argument likewise does nothing to advance the applicant's contention. The fact that there is a reference in the regulations to the rules of an organisation in no way contradicts the proposition that the rules referred to in Section 19 of the RAO schedule and Regulation 21 are those of the association prior to registration.

[17] It is clear from a straightforward reading of the RAO schedule and the regulations that the relevant references to the rules of the association are to the rules as they are in operation prior to registration.

[18] Thus sub-section 19(f) of the RAO schedule states that one of the criteria for registration that must be met by an association seeking registration is that:

"the rules of the association make provision as required by this Schedule to be made by the rules of organisations".

[19] The first reference is to the "rules of the association"; the second reference is to the "rules of organisations". However the point of the sub-section is that one of the requirements for an association seeking registration as an organisation is that its rules meet the requirements that are imposed on registered organisations - not that it will bring those rules into compliance with those requirements once it has been registered.

[20] This is made even clearer when one has regard to the scheme for applicants for registration to change their name or alter their rules contained in Section 25 of the RAO schedule.

[21] Section 25 of the RAO schedule (together with Regulations 27 and 28) provides a specific mechanism for associations applying for registration to seek leave from the Commission to change their name or alter their rules, inter alia, to enable them to comply with the RAO schedule. Moreover sub-section 25(2) specifically provides that the rules can be changed even though the application for registration is pending. This mechanism to change the rules of an association to enable compliance with the requirements of the RAO schedule would make no sense if AFRA's construction were correct.

[22] In relation to the threshold issue, I rule that it is the actual rules of the association as they currently apply, not rules that would only come into force upon registration, that are relevant to satisfying the criteria for registration under s.19 of Schedule 1 of the Workplace Relations Act 1996, or the requirements of for registration under Regulation 21 of the Workplace Relations (Registration and Accountability of Organisations) Regulations 2003.

[23] I will re-list the application to hear submissions on the most appropriate course of action in this matter.

P Rochfort for The Australian Furniture Removers Association Incorporated

B Johnson for Transport Workers Union of Australia

P Ryan Australia Road Transport Industrial Organisation

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