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[2008] AIRC 592
General information, not legal advice.
Australian Industrial Relations Commission
2008-11-10
Original judgment source is linked above.
s.18(a) RAO Schedule - Application for registration by an association of employers
Australian Community Services Employers Association, Queensland Union of Employers
Summary: application for registration - meaning of s.18A of the RAO Schedule re if "federally registrable" - purpose of s.25 of the RAO Schedule - compliance with Reg. 21 and whether rules were actual rules - Regulation 179 and exemption from procedural compliance with the RAO Schedule and Regulations - requirement of State-registered association to amend rules in State Commission - should application be re-gazetted?
[1] The Australian Community Services Employers Association, Queensland Union of Employers ("ACSEA") represents the industrial interests of employers in what can be broadly described as the community-based services sector, including the early education/childcare field (both profit and not-for-profit). It has done so since 1973. ACSEA is constituted as an employer organisation under the Industrial Relations Act (Qld) 1999 ("the State Act").
[2] ACSEA was registered as a Transitionally Registered Association on 15 August 2006 under Schedule 10 of the Workplace Relations Act 1996 ("the Act").
[3] On 17 April 2008, ACSEA applied for registration as an Organisation of Employers, pursuant to s.18(a) of Schedule 1 - Registration and Accountability of Organisations ("the RAO Schedule") (as it relates to a "federally registrable association of employers").
COMPLIANCE WITH SECTION 18 OF THE RAO SCHEDULE
[4] Section 18 of the RAO Schedule reads as follows:
"Any of the following associations may apply for registration as an organisation:
(a) a federally registrable association of employers;
(b) a federally registrable association of employees;
(c) a federally registrable enterprise association."
[5] Regulations 21, 22 and 23 of the Workplace Relations (Registration and Accountability of Organisations) Regulations 2003 ("the RAO Regulations") set out the various conditions for an application made under s.18 of the RAO Schedule.
[6] I have summarised the conditions relating to Regulation 21(1) of the RAO Regulations (relating to an application for registration by an association of employers) in the following questions, which all must be answered in the affirmative if the application is to be accepted as being validly made:
1. Is the application in the approved form (Form R69)?
i. A declaration verifying the facts stated in the application and in any document lodged with the application; and
ii. Is the declaration made by an officer of the association authorised to make the declaration?
Note: Regulation 12 of the RAO Regulations sets out when an officer is authorised to make a declaration.
3. Was the application lodged in the Industrial Registry?
4. Was the application lodged with the following documents:
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?
[7] Bar in respect of the matters discussed below (at paragraphs 70-84), I am satisfied that the requirements of Regulation 21(1) of the RAO Regulations have been met.
[8] For purposes of Regulation 22 of the RAO Regulations, which applies to s.18 of the RAO Schedule, I must be satisfied that a notice, stating that an application for registration has been received, was published in the Gazette by the Industrial Registrar, as soon as practicable after receiving the application.
[9] A Notice of Application for Registration of an Association of Employers was published in the Commonwealth of Australia Gazette, Government Notices, No. GN 18 of 7 May 2008. Subject to the wider discussion below (at paragraphs 64-69) the requirement of Regulation 22 of the RAO Regulations has been met.
[10] For purposes of Regulation 23 of the RAO Regulations, any interested organisation, association or person may, no later than 35 days after a notice has been published in the Gazette, lodge a Notice of Objection. I note in this regard that a Notice of Objection was received in relation to the application by the Australian Municipal, Administrative, Clerical and Services Union ("ASU") on 11 June 2008. Following a conference of the relevant parties, that objection was resolved by way of a written undertaking given by ACSEA to the ASU (on 19 June 2008). The undertaking was in the following terms:
"The Application for Registration of ACSEA is not made with the intention of prejudicing any existing National and State\Territory Union coverage rights. ACESA undertakes that it will not as a result of this Application being consented to, support any other Union enrolling or seeking to enrol employees who are eligible to join the ASU as an unintended consequence of the application."
[11] Consequently, by correspondence dated 1 August 2008 and signed by the National Secretary, the ASU formally withdrew its objection to the application. There were no other objectors to the application.
[12] Section 19 of the RAO Schedule states that the Commission must grant an application for registration if all the requirements of s.19 of the RAO Schedule are met.
[13] In summary, the questions (relating to an application for registration by an association of employers) about which I must be satisfied, and which arise by way of s.19 of the RAO Schedule, are as follows:
1. Is the association a genuine association of a kind referred to in s.18(a) of the RAO Schedule (i.e. a federally registrable association of employers)?
(a) Pursuant to s.18A(1) of the RAO Schedule, an association of employers is federally registrable if:
i. It is a constitutional corporation (as defined in s.6 of the RAO Schedule); or
Note: an association of employers is not federally registrable if it is only a body corporate because it is or has been registered under the RAO Schedule (whether before or after the commencement of s18A(4) of the RAO Schedule).
ii. Some or all of its members are federal system employers (as defined in s.6 of the RAO Schedule).
Note: Pursuant to s.18A(4)(b) of the RAO Schedule, an association of employers is not federally registrable if it is not the case that some or all of the association's members are federal system employers.
(b) However, pursuant to s.18A(3) of the RAO Schedule, an association of employers is not federally registrable if it has a member who is not one of the following:
ii. A person who was an employer when admitted to membership, but who has not resigned or whose membership has not been terminated;
iii. A person (other than an employee) who carries on business;
2. Is the association of employers seeking registration an association for furthering or protecting the interests of its members?
3. Do 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?
4. Would the association conduct its affairs in a way that meets the obligations of an organisation under the RAO Schedule and the Act?
Note: The Commission must have regard to whether any recent conduct by the association or its members would have provided grounds for an application under s.28 of the RAO Schedule (i.e. an application for cancellation of registration) had the association been registered when the conduct occurred.
5. Do the rules of the association make provision as required by the RAO Schedule to be made by the rules of organisations?
Note: The Commission may grant leave to the association under s25 of the RAO Schedule, on such terms and conditions as the Commission considers appropriate, to alter its rules.
6. Does the association 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?
7. Did 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, pass, under the rules of the association, a resolution in favour of the registration of the association as an organisation?
8. Would the registration of the association further Parliament's intention in enacting the RAO Schedule (see s.5 of the RAO Schedule) and the object set out in s.3 of the Act?
9. For purposes of s.19(1)(j) of the RAO Schedule, is there no organisation to which members of the association might belong or, if there is such an organisation, it is not an organisation:
(a) to which the members of the association could more conveniently belong; and
(b) that would more effectively represent those members.
[14] I note that as a Transitionally Registered Association, ACSEA is exempt from the ordinary requirement of s.19(1)(j) of the RAO Schedule because of the operation of Part 4.2 of Chapter 6 of the Workplace Relations Regulations 2006 ("the WR Regulations").
[15] On the basis of all the material before me (including the statutory declarations of Mr Ryan Shields, Mr Allan Fazldeen, Ms Susan Cislowski and Mr Allan Teague), I am, bar matters in respect of question 1(b) above, which I will discuss below, satisfied that the application that is before me meets all the requirements of s.19 of the RAO Schedule.
APPLICATION TO ALTER RULES UNDER SECTION 25 OF THE RAO SCHEDULE
[16] ACSEA has sought leave to alter its rules by way of s.25 of the RAO Schedule.
[17] Section 25 of the RAO Schedule reads as follows:
"25 Applicant for registration may change its name or alter its rules
(1) The Commission may, on the application of an association applying to be registered as an organisation, grant leave to the association, on such terms and conditions as the Commission considers appropriate, to change its name or to alter its rules:
(b) to remove a ground of objection taken by an objector under the regulations or by the Commission; or
(c) to correct a formal error in its rules (for example, to remove an ambiguity, to correct spelling or grammar, or to correct an incorrect reference to an organisation or person).
Note: Paragraph (a) - in order for an organisation to comply with this Schedule, its rules must not be contrary to the Workplace Relations Act (see paragraph 142(1)(a) of this Schedule).
(2) An association granted leave under subsection (1) may change its name, or alter its rules, even though the application for registration is pending.
(3) Rules of an association as altered in accordance with leave granted under subsection (1) are binding on the members of the association:
(a) in spite of anything in the other rules of the association; and
(c) subject to any further alterations lawfully made."
DOES THE GRANT OF LEAVE UNDER S.25 OF THE RAO SCHEDULE REQUIRE A STATE-REGISTERED ASSOCIATION TO ALTER ITS RULES UNDER THE STATE ACT?
[18] The Act has long enabled the Commission to grant leave to an association seeking registration as a federal organisation to apply for leave to alter its rules so that the association complies with the relevant requirements to enable registration. [1]
[19] The rules, once altered in accordance with the grant of leave are binding on the association's members.
[20] The current legislative vehicle by which the Commission may grant leave is s.25 of the RAO Schedule, as cited above.
[21] The grant of leave at s.25 of the RAO Schedule permits the association to alter its rules in limited situations, which are to enable the association to meet the requirements of the RAO Schedule, remove any grounds of an objection, or to address issues of typography etc.
[22] The grant of leave may be provided while the application for registration is pending and allows the applicant association to take corrective action without the necessity of dismissal of its current application for registration and re-application. As a matter of practicality, it will only be when the application is afoot that guidance might be provided by the Commission or the Industrial Registry as to whether the applicant association's rules comply with the RAO Schedule. In this sense, s.25 of the RAO Schedule performs a facilitative function for applicant associations seeking to be federally registered.
[23] How does a State-registered association, once having obtained a grant of leave under s.25 of the RAO Schedule, alter its rules?
[24] The approach adopted in prior applications for registration where the applicant has been a State-registered association, [2] and for good reason, has been that the State-registered association needs to have its rules amended under the State Act by separate application.
[25] It appears to me that in order for the rules of the applicant association (which in this case is a State-registered association), to be the rules of the association at the time of its registration (and the rules for which I must be satisfied make provision as required in the RAO Schedule for the purposes of s.19(1)(f) of the RAO Schedule), the applicant association's rules must be amended in accordance with the requirements of the relevant State Act. Further, the grant of leave to alter the applicant association's rules under s.25 of the RAO Schedule is in relation to "its rules", and these must be the rules of the applicant association as they actually are (in this case, under the State Act).
[26] Before the Commission can register an association which is a State registered association, it must be satisfied that that association's rules have been amended under the State Act pursuant to the grant of leave under s.25 of the RAO Schedule, at least to the extent to which it would enable the association to comply with the requirements of the RAO Schedule.
IN WHAT RESPECTS DID ACSEA SEEK LEAVE TO ALTER ITS RULES UNDER S.25(1) OF THE RAO SCHEDULE?
[27] ACSEA has sought leave to alter its rules in two respects. The first of these is to alter its rules in respect of a range of formal errors, including a range of typographical and grammatical concerns, and to correct various references. With the exception of sub rules 17(c) and 35(4) of the association's rules, the particulars of the alterations sought are set out in Exhibit ACSEA 8, Exhibit ACSEA 4 and in Attachment 4 to Exhibit ACSEA 3.
[28] An application in this respect of this type would properly be under s.25(1)(c) of the RAO Schedule.
[29] In the second respect, a number of the proposed alterations extend to matters relevant to whether the proposed rules comply with the RAO Schedule, and therefore appear relevant to the basis for the grant of leave under s.25(1)(a) of the RAO Schedule.
[30] Before considering these matters, it is necessary to determine whether ACSEA made an application, in the appropriate way, for leave to alter its rules.
DID ACSEA MAKE AN APPLICATION FOR LEAVE UNDER S.25 OF THE RAO SCHEDULE TO ALTER ITS RULES?
[31] Section 25(1) of the RAO Schedule states in part that:
"The Commission may, on the application of an association applying to be registered as an organisation, grant leave to the association, on such terms and conditions as the Commission considers appropriate, to change its name or to alter its rules […]."
[32] The discretion to grant leave is subject to an application being made by the applying association, in this instance, to alter its rules.
[34] Regulation 27 of the RAO Regulations reads as follows:
"An application by an association under section 25 of the RAO Schedule to change its name or alter its rules must, unless the Commission otherwise directs, be:
(a) in the form set out in the Rules of the Commission or in a form otherwise approved by the President; and
[35] Regulation 27 of the RAO Regulations stipulates, subject to a direction by the Commission, that an application for leave under s.25 of the RAO Schedule must be made in the form set out in the Australian Industrial Relations Commission Rules 2007 ("the AIRC Rules") and lodged in the Registry.
[36] Currently there is no form set out in the AIRC Rules, the RAO Regulations or the WR Regulations relevant to an application for leave under s.25 of the RAO Schedule.
[37] In such circumstances an association would be required by Rule 5(2) of the AIRC Rules to utilise Form R59, which is a form of general application when no other form exists.
[38] ACSEA did not apply to alter its rules by way of filing a Form R59 in the Registry. ACSEA instead "applied" in transcript during the hearing.
[39] Regulation 179 of the RAO Regulations reads as follows:
(1) In any proceedings before the Commission, the Commission may exempt a person from compliance with a procedural requirement under the RAO Schedule or these Regulations if the Commission is satisfied there are special circumstances.
(2) An exemption under sub regulation (1) may be granted:
(3) Failure to comply with a procedural requirement for proceedings before the Commission does not render the proceedings void but the proceedings may be:
(a) set aside, either wholly or in part, as irregular; or
(c) otherwise dealt with as and how the Commission thinks fit."
[40] In my view the circumstances invoke the Commission's jurisdiction under Regulation 179(3)(c) of the RAO Regulations.
[41] I have decided that ACSEA ought not be required to make an application to alter its rules by way of Form R59. To decide otherwise would be to put ACSEA to unnecessary costs and further delay.
[42] Instead, I think fit to accept the application as having been made and having been lodged in the Registry in effect by way of the application made at the hearing and as preserved in the transcript of these proceedings and as otherwise recorded in this decision.
[43] I am empowered to so exempt ACSEA from the procedural requirement in Regulation 27 of the RAO Regulations absolutely by way of Regulation 179 of the RAO Regulations.
SHOULD THE COMMISSION EXERCISE ITS DISCRETION TO GRANT LEAVE FOR ACSEA TO ALTER ITS RULES UNDER S.25 OF THE RAO SCHEDULE?
[44] Having accepted ACSEA have made an application for leave to alter its rules, should I grant leave in the first respect (that is, under to s.25(1)(c) of the RAO Schedule) as sought by ACSEA?
[45] In the circumstances, it is appropriate that I grant leave under s.25(1) of the RAO Schedule in the first respect that I have earlier cited, and without that leave being subject to any terms or conditions. That is, I grant leave to alter its rules in relation to the proposed alterations cited at Exhibit ACSEA 4, Exhibit ACSEA 8, and Attachment 4 to the Exhibit ACSEA 3 (with the exception of the proposed alterations of sub rules 17(c) and 35(4)).
[46] Should I grant ACESA leave to alter its rules in the second respect cited above (that is, in relation to s.25(1)(a) of the RAO Schedule)?
[47] There are two distinct sets of alterations to be considered in this regard.
[48] ACSEA sought leave in respect of two alterations to sub rules 17(j) and 24(e). The amendments in this second respect concerned ensuring the Board of ACSEA would expressly retain accountability for any functions it might delegate. These amendments are necessary to ensure that the objects of the RAO Schedule are expressly achieved, and they are rightly the subject of an application under s.25(1)(a) of the RAO Schedule.
[49] I therefore grant leave for sub rules 17(j) and 24(e) to be altered, pursuant to s.25(1)(a) of the RAO Schedule, in the manner sought.
[50] ACSEA also sought leave to alter its eligibility rules.
[51] There is a particular feature of ACSEA's eligibility rule, which may have an arguable implication for whether ACSEA is a federally registrable association, in the manner required at s.18A of the RAO Schedule. This matter was raised by the Australian Industrial Registry in the course of its carrying out its functions under s.13 of the RAO Schedule, that being providing advice and assistance to ACSEA.
[52] Because of the Industrial Registry's advice, which I will outline below, ACSEA made application for a grant of leave to alter its eligibility rule.
[53] The issue in question arose in respect of the requirements of s.18A of the RAO Schedule, which reads as follows:
(1) An association of employers is federally registrable if:
(b) some or all of its members are federal system employers.
(3) An association of employers is not federally registrable if it has a member who is not one of the following:
(b) a person who was an employer when admitted to membership, but who has not resigned or whose membership has not been terminated;
(c) a person (other than an employee) who carries on business;
(4) An association of employers is not federally registrable if:
(a) it is only a body corporate because it is or has been registered under this Schedule (whether before or after the commencement of this subsection); and
(c) it is not the case that some or all of the association's members are federal system employers." (Emphasis added)
[54] Sub rules (6)(5), (6)(6) and (6)(7) of ACSEA's rules reads as follows:
"(5) Membership as an Associate Member shall be open to any person other than an Ordinary Member who has a genuine and demonstrated interest in the objects and purposes of the Association and shall include but not be limited to the following categories:
(a) persons engaged in academic studies or other professional activities relating to community services:
(b) persons interested in the promotion or the proper conduct of community services;
(c) persons engaged in the establishment of a community service which has not yet been established.
(6) The Board may establish such categories of Associate Members as it may consider appropriate and may, in its absolute discretion, determine the rights, privileges and liabilities of each category.
(7) A person may apply to become an Associate Member of the Association if:
(a) that person states in writing to the association their name, address, place of business and the nature of their interest in the Association; and
(b) that person tenders the annual subscription/fee payable (for Associate Members) under these rules."
[55] The issue raised by the Industrial Registry concerns whether ACSEA's current sub rules (6)(5), (6)(6) and (6)(7), which relate to Associate Membership, comply with s.18A(3) of the RAO Schedule. The Industrial Registry advised that the abovementioned sub rules may not comply because an Associate Member is not required under the rules to be at least one of the four requisite identities stipulated at s.18A(3) of the RAO Schedule.
[56] The RAO Schedule requires that for purposes of registration that the rules of an association must make provision as required by the RAO Schedule (s.19(1)(f) of the RAO Schedule). In this regard s.141(1)(a) of the RAO Schedule requires that an association's rules must specify the conditions of eligibility of membership. Sub rule 6 of the ACSEA's rules, as cited above, fulfils this requirement. For the purposes of determining compliance with s.19(1)(f) of the RAO Schedule, the Commission's examination is limited to the existence of the rule, not the potential effect of the rule.
[57] The request by ACSEA to alter its eligibility rule does not meet any of the grounds for leave to be granted under s.25 of the RAO Schedule. I have not found ACSEA to be non-compliant with the Schedule, such that s.25(1)(a) of the RAO Schedule could apply.
[58] That said, could it in any event be determined that ACSEA has any associate members that would cause it to not be "federally registrable" for purposes of s.18A(3) of the RAO Schedule?
[59] The facts as they are at the time of this application (see the statutory declaration of Ms Cislowski) is that the ACSEA has only one Associate Member, and that Associate Member is an employer (for purposes of s.18A(3)(a) of the RAO Schedule).
[60] It appears to me that ACSEA is an association of employers that is federally registrable at the time of this application as it has no members at this point who cause the association to fall into non-compliance with the requirement of s.18A of the RAO Schedule.
[61] Indeed, I observe that the Act appears to accommodate such circumstances as are now before the Commission. It does so at s.30(1)(c)(v) of the RAO Schedule, which reads:
"30 Cancellation of registration on technical grounds etc.
(1) The Commission may cancel the registration of an organisation:
(i) the Commission has satisfied itself, as prescribed, that the organisation is defunct; or
(ii) the organisation is an organisation of employees, other than an enterprise association, and has fewer than 50 members who are employees; or
(iii) the organisation is an enterprise association and has fewer than 20 members who are employees; or
(iv) the organisation is an organisation of employers and the members who are employers have, in the aggregate, throughout the 6 months before the application, not employed on an average taken per month at least 50 employees; or
(v) the organisation is not, or is no longer, a federally registrable association." [My emphasis]
[62] Given s.30 of the RAO Schedule as cited above, in the event ACSEA, in the future, enlisted a member who did not meet the requirements of s.18A of the RAO Schedule as prescribed, it may have its registration cancelled. Again, this is a matter of fact, and is not related to the potential effect of its eligibility rule at the time an association such as ACSEA seeks federal registration.
[63] The Industrial Registry raised a concern with ACSEA that its application may have resulted in a "defective gazettal", as it described it.
[64] The reason for this is that the gazetted summary of the application only made reference to the eligibility rule as it applied to ordinary members, and not to its extended form, including the Associate Members (see above).
[65] Does the application therefore need to be re-gazetted in relevant respects because of the "defective gazettal"?
[66] In my view, the application does not need to be re-gazetted to accommodate the arguable defect in the scope of the eligibility rule as gazetted.
[68] Consequently, in my view, re-gazettal would result in delay to ACSEA and unnecessary transaction costs, and it would do so without addressing any identifiable prejudice to any known potential objector.
DID ACSEA COMPLY WITH THE REQUIREMENT OF FORM R69 TO STATE ITS ELIGIBILITY RULE?
[69] The only issue that might arise is whether ACSEA met the requirements of Form R69, which requires the association to state its eligibility rule. Clearly, ACSEA did not do so to the extent that sub rule 6(5) of the association's rules dealing with Associate Members was not included in that completed form that is kept on file.
[70] But for the reasons given above, I do not consider this deficiency to be an obstacle to registration: no identifiable prejudice arises as a consequence of this omission, and the association would be subject to increased costs and delay if its application was found to be defective for reason of such any arguable non-compliance with Regulation 21(1)(a) of the RAO Regulations.
[71] Form R69 arises from Regulation 21 of the RAO Regulations, which refers to the particulars to the requirements for an application to be made under s.18 of the RAO Schedule. The requirement for an application to state its eligibility rule arises from the Form R69, and not from the Regulation. That is, Regulation 21(1)(a) of the RAO Schedule requires that any application must be in the form set out in the Rules of the Commission (or in a form otherwise approved by the President). Rule 77 of the ARIC Rules, consequently, specifies the various forms to be used under the RAO Schedule. In this instance, Form R69 was properly used for the purposes of the application. The fact that an association might have been less than attentive to providing all the information required by that form is not evidence of non-compliance with Rule 77 of the AIRC Rules or with the requirements of Regulation 21(1)(a) of the RAO Regulations.
[72] In my view, the circumstances as discussed above warrant me unconditionally exempting ACSEA from the procedural requirements of Regulation 21 of the RAO Regulations by way of Regulation 179 of the RAO Regulations, which I have cited earlier.
[73] That said, as a matter of desirable practice, it is beneficial for an association to state comprehensively its eligibility clause in Form R69.
DID ACSEA PROVIDE A COPY OF ITS RULES WHEN IT MADE ITS APPLICATION?
[74] Regulation 21(1)(d)(v) of the RAO Regulations requires that the rules of the association must be provided with the application upon it being lodged in the Registry.
[75] It is reasonable to assume that the rules that are required to be provided at the point of application are the rules of the association as they were at that time.
[76] It appears to me that this might not have been the case, for reason that citations in those rules as found in the application before me are referable to alterations proposed to be made to ensure compliance with the RAO Schedule, and which were attached to the statutory declaration of Mr Shields, [3] which was submitted to the Industrial Registry on 29 May 2008.
[77] ACSEA provided a further copy of its rules on 12 May 2008, which purported to be "a hard copy of the Rules" as filed on 17 April 2008 with appropriate markings indicating where either new provisions have been inserted, and /or where changes have occurred to the wording following the approval of ACSEA's members.
[78] On 29 May 2008, ACESA provided a statutory declaration to the Registry which included in an attachment a copy of the association's rules as they were at 2 April 2008 (and which had been duly approved by the Queensland Industrial Registry on that date. [4] These were the association's rules as they were at the time of the application on 17 April 2008 (although they were subsequently amended by the Queensland Industrial Registry still further for technical reasons on 8 May 2008). The statutory declaration by the then Secretary of ACSEA, Mr Fazldeen, declared that:
"The new approved State Rules formed the basis of the Application for Registration […]." [5]
[79] While the rules as amended by the Queensland Industrial Relations Commission on 2 April 2008 may have "formed the basis" of the rules that were lodged with the Industrial Registry on 17 April 2008, the new approved State Rules did not constitute the body of the rules that were binding on ACSEA at that time. These rules incorporated a large body of draft rules ACSEA believed were necessary for purposes of federal registration, and about which it had been in discussion with the Industrial Registry for some lengthy time prior to the application being lodged (that is, since what appears to be July 2006).
[80] As a further consequence of the above, the rules binding ACSEA at the time of its application were not the rules that were made available to interested parties upon gazettal of the application by the Industrial Registry. That is, again, the rules that were gazetted by the Industrial Registry were the proposed rules of the association for purposes of eventual federal registration.
[81] Though this is an issue of potential substantive concern, I doubt that such apparent defects are fatal to the application in the current circumstances.
[83] In the current circumstances at least, no discernible injustice or prejudice reasonably arises from the fact that the rules that were made available to interested parties at the time the Industrial Registry notified the application for registration of ACSEA were not the rules that were binding on ACSEA at the time.
[84] As discussed above, I have granted leave to ACSEA to alter its rules pursuant to s.25(1)(c) of the RAO Schedule, for purposes of facilitating its registration as an organisation. Regulation 28 of the RAO Regulations consequently has effect.
[85] Regulation 28 of the RAO Regulations provides as follows:
"An association that has altered its rules in accordance with leave granted by the Commission under subsection 25 (1) of the RAO Schedule must:
(a) within 35 days after altering its rules, lodge in the Industrial Registry:
(ii) a declaration, signed by an officer of the association authorised to sign the declaration, verifying the alterations; and
(b) within 7 days after lodging the copies of the alterations in the Industrial Registry, serve a copy of the alterations on any objector who has lodged a notice of objection under regulation 23."
[86] Upon granting leave under s.25(1) of the RAO Schedule, I invited ACSEA to provide an affidavit in the Registry that it has complied with the requirements of Regulation 28(a)(i) and (ii) of the RAO Regulations.
[87] I have also invited ACSEA subsequently to provide a written statement to the Industrial Registry confirming compliance with the requirements of Regulation 28(b) of the RAO Regulations.
[88] Unless ACSEA confirms it has met the requirements of Regulation 28(b) of the Regulations it cannot be registered as an organisation, though the Regulation does not require any notification of compliance in this regard, as it does in relation to Regulation 28(a)(i) and (ii) of the RAO Regulations.
[89] Finally, I invite ACSEA to provide written certification of its rules having been appropriately amended under the State Act (see paragraph 27 above). Upon these conditions being satisfied, I will by further, short written decision grant the application by ACSEA for registration as an organisation, with the Industrial Registrar then to discharge its functions pursuant to s.26 of the RAO Schedule.
L Moloney, Livingstones Australia for the Applicant.
[1] Victorian Principals Association (1999) 95 IR 262
[2] Application by Australian Federated Union of Locomotive Employees, Queensland Union of Employees for registration as an organisation 5 Ibid at PN8
Printed by authority of the Commonwealth Government Printer
(1999) 95 IR 262