Registered organisations

Both the Tribunal and the General Manager exercise powers and functions under the Registered Organisations Act concerning federally registered unions and employer organisations.

Matters dealt with by the organisations panel

The organisations panel deals with applications for registration, amalgamation and cancellation of registration of registered organisations, as well as changes to eligibility rules and name.

The organisations panel also considers non-routine applications for right of entry permits under the Fair Work Act.

In 2017–18, the Commission received 16 applications for matters dealt with by the organisations panel. Seven of those applications were by transitionally recognised associations (TRAs) seeking an extension of their recognition.

A TRA is a state‑registered employer association or union that has been transitionally recognised under Schedule 1 to the Registered Organisations Act. Transitional recognition permits a TRA to represent its members in the national workplace relations system even though it is not a registered organisation under the Registered Organisations Act.

Transitional recognition ended on 1 January 2017. Only TRAs that obtained an extension of time from the Commission can remain transitionally recognised after that date.

In 2017–18, the organisations panel finalised 18 applications, as shown in Table 30, compared with 35 applications in 2016–17. The spike in 2016–17 arose from applications for extension of recognition of transitionally recognised associations.

Significant decision—union amalgamation to form the Construction, Forestry, Maritime, Mining and Energy Union

On 6 March 2018, the Commission granted an application for the amalgamation of three unions—the Maritime Union of Australia, the Textile, Clothing and Footwear Union of Australia and the Construction, Forestry, Mining and Energy Union. This followed a ballot of members of the Maritime Union of Australia and the Textile, Clothing and Footwear Union of Australia approving the amalgamation.

On appeal, a Full Bench rejected an application for the amalgamation to be overturned because the requirements of the Registered Organisations Act had not been met. The effect of the Full Bench’s decision is that an amalgamation can take place if there are certain unresolved civil penalty proceedings against any of the organisations seeking to amalgamate.

You can read the decision approving the amalgamation at [2018] FWC 1017 and the Full Bench appeal decision at [2018] FWCFB 3710.

Since the end of the reporting period, an application for judicial review of the Full Bench’s decision has been lodged in the Federal Court of Australia.

Table 30: Registered organisations–organisations panel—applications lodged and finalised
     
  No. lodged No. finalised
Matter type 2017–18 2016–17 2015–16 2014–15 2017–18 2016–17 2015–16 2014–15
ROA s.137A—Orders about representation rights of organisations of employees 1 1 0 3 2 0 2 1
ROA s.151(1)—Membership agreement with state-registered union  0 0 0 1 0 0 0 1
ROA s.152(2)—Assets and liabilities agreement with state-registered union 2 0 1 0 2 0 1 0
ROA s.158(1)(a)—Change of name 0 1 1 0 0 1 1 1
ROA s.158(1)(b)—Changes to eligibility rules 3 11 6 10 3 12 6 11
ROA s.18(a)—Registration of association of employers 1 3 1 3 1 3 2 4
ROA s.18(b)—Registration of association of employees 0 0 1 2 0 0 0 3
ROA s.30—Cancellation of registration 2 2 1 6 2 2 3 5
ROA s.44(1)—Submission of amalgamation to ballot 0 1 0 0 1 0 0 0
ROA Sch.1, Cl.6(2)—Extension of transitional recognition 0 17 0 0 0 17 0 0
ROA Sch.1, Cl.6(3)—Extension of transitional recognition 7 0 0 0 7 0 0 0
Total 16 36 11 25 18 35 15 26

ROA = Registered Organisations Act

Note: The number of applications finalised does not equal the number of applications lodged in the financial year because some applications are finalised outside the year in which they are lodged.

Matters dealt with by the General Manager

Once an organisation is registered, the General Manager determines applications for alterations to the rules (other than most eligibility rules) of organisations registered under the Registered Organisations Act. Most applications for alterations to eligibility rules are considered by the organisations panel, but the General Manager can determine alterations to eligibility rules to extend them to cover persons already covered by state-registered unions or employer organisations under s.158A of the Registered Organisations Act.

In 2017–18, the General Manager and her delegate finalised 93 applications for alterations to rules of registered organisations, consistent with previous years as set out in Table 31.

Table 31: Registered organisations—General Manager—applications lodged and finalised
  No. lodged No. finalised
Matter type 2017–18 2016–17 2015–16 2014–15 2017–18 2016–17 2015–16 2014–15
ROA s.159—Notification of alteration of rules 83 97 99 101 88 91 105 103
ROA s.158A—Alteration of eligibility rules 1 14 6 0 5 5 4 5
Total 84 111 105 101 93 96 109 108

ROA = Registered Organisations Act

Note: The number of applications finalised does not equal the number of applications lodged in the financial year because some applications are finalised outside the year in which they are lodged.

Timeliness

In 2017–18, 96 per cent of applications were assessed with within 40 working days, consistent with the previous two reporting periods, as shown in Table 32.

Table 32: Registered organisations—General Manager—timeliness, alteration to rules
    Percentage assessed within 40 days
Matter type Target 2017–18 2016–17 2015–16 2014–15
ROA s.159—Notification of alteration of rules 95 96 99 96 78

ROA = Registered Organisations Act

Appeals of Registered Organisations Commissioner decisions

Since the establishment of the Registered Organisations Commission on 1 May 2017, the Commission has been able to hear appeals from decisions of the Registered Organisations Commissioner.

Significant decision—what is the Registered Organisations Commissioner’s role in an appeal?

On 15 December 2017, a Full Bench of the Commission handed down its first decision in an appeal against the Registered Organisations Commissioner. The Full Bench overturned a decision not to grant a union more time to submit information about an election for union officers.

As this was the first appeal, the Full Bench considered the role of the Registered Organisations Commissioner in an appeal. It observed that the Commissioner’s role should generally be limited to assisting a Full Bench through submissions about the Commissioner’s powers and procedures in an appeal and the factual background to the matter. In this case, however, the Commissioner had advanced submissions about how the union’s rules should be interpreted, which might give rise to a perception of not being impartial.

Given the Commissioner’s ongoing role as a regulator, the Full Bench noted that it is particularly important for the Commissioner to be impartial. The Full Bench also decided that, by making a gratuitous statement that the union was liable for a civil penalty for lodging information late, there had been a miscarriage of the Commissioner’s discretion.

You can read the decision in Australian Municipal, Administrative, Clerical and Services Union v Registered Organisations Commission at [2017] FWCFB 6249.

Right of entry permits

The Commission exercises powers and functions concerning right of entry under the Fair Work Act and the Work Health and Safety Act 2011 (WHS Act).

Part 3–4 of the Fair Work Act sets out the rights of officials of organisations who hold entry permits to enter premises for purposes related to representing their members. Division 6 of Part 3–4 empowers the Commission to issue right of entry permits, subject to certain considerations. The Commission must be satisfied that the proposed permit holder is a fit and proper person to hold a permit. This includes consideration of whether the proposed permit holder has received appropriate training.

A union official who holds a right of entry permit under the Fair Work Act can also apply for an entry permit under the WHS Act. The WHS Act allows permit holders to enter premises to inquire into suspected contraventions of the WHS Act and to consult and advise workers.

Commission staff process permit applications under the Fair Work Act and the WHS Act, and permits are issued by senior Commission staff under delegation from the President. Staff refer applications that are assessed as being ‘non-routine’ (where it is uncertain whether the statutory requirements have been met) to the organisations panel for determination by a Member. This provides applicants with an opportunity to present relevant evidence at a hearing.

Applications

The numbers of applications for right of entry permits lodged under the Fair Work Act and the WHS Act have been fairly consistent in recent years. In 2017–18, a total of 1,391 permit applications were lodged, a decrease of 11 per cent from the total of 1,560 in 2016–17, as shown in Table 33.

Table 33: Registered organisations—right of entry permits—applications lodged and finalised
  No. lodged No. finalised
Matter type 2017–18 2016–17 2015–16 2014–15 2017–18 2016–17 2015–16 2014–15
FWA s.512—Application for right of entry permit 1,350 1,521 1,628 1,481 1,373 1,532 1,590 1,555
WHSA s.131—Application for work health and safety entry permit 41 39 44 44 42 39 46 44
Total 1,391 1,560 1,672 1,525 1,415 1,571 1,636 1,599

FWA = Fair Work Act, WHSA = WHS Act

Note: The number of applications finalised does not equal the number of applications lodged in the financial year because some applications are finalised outside the year in which they are lodged.

The Commission issued a total of 1,350 permits in 2017–18, a decrease of 10 per cent from the total of 1,501 in 2016–17, as shown in Table 34.

Of the 1,315 applications for a Fair Work Act right of entry permit that were finalised in 2017–18, 43 were assessed as being non-routine and were referred to the organisations panel for determination. Of these non‑routine permit applications, 37 permits were issued (of which five were issued with conditions) and two applications were refused. The remaining four applications were withdrawn. Decisions concerning refusal to grant a permit under the Fair Work Act are published on the Commission’s website.

A total of 63 applications were withdrawn for various reasons, most commonly after the applicant was informed that additional disclosure or further information was required.

Table 34: Registered organisations—right of entry permits—finalisation of matters
  No. issued No. refused No. withdrawn
Matter type 2017–18 2016–17 2015–16 2014–15 2017–18 2016–17 2015–16 2014–15 2017–18 2016–17 2015–16 2014–15
FWA s.512—Application for a right of entry permit 1,315 1,468 1,520 1,483 2 2 7 6 56 62 63 66
WHSA s.131—Application for work health and safety entry permit 35 33 30 42 0 0 0 0 7 8 16 9
Total 1,350 1,501 1,550 1,525 2 2 7 6 63 70 79 75

FWA = Fair Work Act, WHSA = WHS Act

Timeliness

In 2017–18, the Commission took a median of 16 days to issue a Fair Work Act right of entry permit and a median of 25 days to issue a permit under the WHS Act, as set out in Table 35. This was an increase in median processing times, compared with 13 days and 20 days respectively in 2016–17.

Table 35: Registered organisations—right of entry permits—timeliness, days to issue
  Median time to issue permit (days)
Matter type 2017–18 2016–17 2015–16 2014–15
FWA s.512—Application for a right of entry permit 16 13 9 8
WHSA s.131—Application for work health and safety entry permit 25 20 14 25

FWA = Fair Work Act, WHSA = WHS Act

Note: Timeliness data presented in Table 50 on page 112 of the 2016–17 Annual Report reported the average time to issue an entry permit. In order to be consistent with presentation of data elsewhere in this annual report, timeliness data for issuing entry permits is presented here as a median.