D2008/109, Transcript of Proceedings [2008] AIRCTrans 632 (15 October 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17728-1

SENIOR DEPUTY PRESIDENT RICHARDS

D2008/109

s.18(a) RAO Schedule
Australian Community Services Employers Association, Queensland Union of Employers.
and
Livingstone Services Australia Pty Ltd T/A Livingstones Australia
(D2008/109)

BRISBANE

10.32AM, WEDNESDAY, 1 OCTOBER 2008

PN1

MR L MOLONEY: I seek leave to appear as agent on behalf of the applicant, the Australian Community Services Employers Association, Queensland Union of Employers, together with MR CHARLES HARDY, the executive officer of that association and MR BRIAN SHIELDS, consultant with Livingstones Australia.

PN2

THE SENIOR DEPUTY PRESIDENT: Good, thanks Mr Moloney. Leave is granted.

PN3

MR MOLONEY: Thank you. Your Honour this matter comes before the Commission by way of an application that was filed on 17 April this year, seeking registration as an organisation. Can I provide your Honour with an outline of submissions, which I won’t choose to recite to the Commission; but it provides an overview initially of the association and its activities, the nature of its members and the nature of the services that it provides to its members. It has already been provided.

PN4

THE SENIOR DEPUTY PRESIDENT: That’s the copy you filed?

PN5

MR MOLONEY: Yes.

PN6

THE SENIOR DEPUTY PRESIDENT: The summary of submissions.

PN7

MR MOLONEY: Yes, it’s headed Outline of Submissions.

PN8

THE SENIOR DEPUTY PRESIDENT: Preliminary, is that the - - -

PN9

MR MOLONEY: It should look like that.

PN10

THE SENIOR DEPUTY PRESIDENT: Sorry, that is titled? I’m just trying to find it.

PN11

MR MOLONEY: It’s titled Outline of Submissions and it’s some five pages.

PN12

THE SENIOR DEPUTY PRESIDENT: Now I have it, thank you.

PN13

MR MOLONEY: Your Honour, that outline sets out, as I say, the introduction to the organisation, the services it provides, the types of services and if I can simply say that the association has been in existence for in excess of 30 years. Its primary purpose was initially formed as an industrial organisation and an industrial association, and since that initial formation back in 1975 it has expanded its services to include not only primarily industrial relations services, but management support, bookkeeping services, a great range of human resources matters to its members, as well as education seminars, amongst other things.

PN14

Sorry, I’m corrected there; it was formed in 1973 and it achieved registration under the Queensland legislation as a state registered organisation of employers on 22 April 1975. The association is presently a transitionally registered organisation under the terms of the Workplace Relations Act 1996 and it achieved that on 15 August 2006.

PN15

By this application, your Honour, the association seeks registration limited to its geographic boundaries of Queensland. As I say, the application was lodged on 17 April, gazettal was on 7 May 2008 and there was further material filed by way of statutory declarations on 29 May 2008.

PN16

The application and gazettal drew one objection and that objection was from the Australian Services Union on 11 June 2008. That objection has been satisfied by way of correspondence to the Commission from the ASU dated 1 August 2008, and the correspondence signed by the national secretary seeks our good officers to tender that to the Commission as an exhibit, to indicate the nature of the agreement that has been reached between the parties. I would seek to tender that letter as an exhibit. I believe the Commission has a copy of that.

PN17

THE SENIOR DEPUTY PRESIDENT: Yes, I do.

EXHIBIT #ACSEA1 LETTER FROM THE AUSTRALIAN SERVICES UNION TO THE INDUSTRIAL RELATIONS COMMISSION DATED 01/08/2008

PN18

MR MOLONEY: Your Honour, might it be convenient if I can seek to tender a range of documents which I’ll then refer to in our submissions. We have provided the Commission with, I trust, a folder with numbered tabs and an index of those documents.

PN19

THE SENIOR DEPUTY PRESIDENT: Would you like these marked as a bundle?

PN20

MR MOLONEY: If I may, your Honour, I would prefer if they were marked individually.

PN21

THE SENIOR DEPUTY PRESIDENT: Yes, that’s fine.

PN22

MR MOLONEY: It just might make it easier for referencing them.

PN23

THE SENIOR DEPUTY PRESIDENT: Is there a sequence?

PN24

MR MOLONEY: Yes.

PN25

THE SENIOR DEPUTY PRESIDENT: You had best lead me through the sequence you want, so I align them with your submission.

PN26

MR MOLONEY: The next document we would seek to tender as an exhibit, your Honour, is behind tab 1 and that’s a letter signed by the secretary of ACSEA, Mr Allan Fazldeen, that’s F-a-z-l-d-e-e-n. That’s in compliance with regulation 21(1)D4 of the regulations, in that it sets out the branch offices of the association, of which there are none. So it only has one office and that’s in Brisbane. That was a document that was not included in the original application for registration. I would seek to tender that.

EXHIBIT #ACSEA2 LETTER SIGNED BY SECRETARY OF ACSEA, ALLAN FAZLDEEN REGARDING BRANCH OFFICES OF THE ASSOCIATION

PN27

MR MOLONEY: In the folder we have already tendered the ASU correspondence as ACSEA 1. The next document, your Honour, would be the statutory declaration of Allan Daniel Fazldeen filed on 29 May 2008 in the registry, and that’s behind tab 3.

EXHIBIT #ACSEA3 STATUTORY DECLARATION OF ALLAN DANIEL FAZLDEEN FILED ON 29/05/2008

PN28

MR MOLONEY: Followed by the statutory declaration of Ryan Steven Shields filed on 29 May 08, and that’s behind tab 4.

EXHIBIT #ACSEA4 STATUTORY DECLARATION OF RYAN STEVEN SHIELDS FILED ON 29/05/2008

PN29

MR MOLONEY: We then have a document that’s headed Comments on the Eligibility Rules of the Australian Community Services Employers Association, Queensland Union of Employers and the requirements of regulation 21 of the RAO regulations and form R69.

EXHIBIT #ACSEA5 DOCUMENT ENTITLED COMMENTS ON THE ELIGIBILITY RULES OF THE AUSTRALIAN COMMUNITY SERVICES EMPLOYERS ASSOCIATION, QUEENSLAND UNION OF EMPLOYERS AND REQUIREMENTS OF REGULATION 21 OF RAO AND FORM R69

PN30

MR MOLONEY: Followed by, at tab 6, a further document that’s headed Comments on the Eligibility Rules of the Australian Community Services Employers Association, Queensland Union of Employers and the application of section 18A3 schedule 1 of the Workplace Relations Act 1996.

EXHIBIT #ACSEA6 DOCUMENT ENTITLED COMMENTS ON THE ELIGIBILITY RULES OF THE AUSTRALIAN COMMUNITY SERVICES EMPLOYERS ASSOCIATION, QUEENSLAND UNION OF EMPLOYERS AND APPLICATION OF SECTION 18A3 OF THE WORKPLACE RELATIONS ACT

PN31

MR MOLONEY: Behind tab 7 is a document headed Comments on the Rules of the Australian Community Services Employers Association, Queensland Union of Employers version 3.

PN32

THE SENIOR DEPUTY PRESIDENT: ACSEA 8.

EXHIBIT #ACSEA7 DOCUMENT ENTITLED COMMENTS ON THE RULES OF THE AUSTRALIAN COMMUNITY SERVICES EMPLOYERS ASSOCIATION, QUEENSLAND UNION OF EMPLOYERS VERSION 3

PN33

MR MOLONEY: The next document - - -

PN34

THE SENIOR DEPUTY PRESIDENT: Sorry, yes, that should have been ACSEA 7.

PN35

MR MOLONEY: Seven, yes your Honour.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes.

PN37

MR MOLONEY: Followed by a further schedule which is headed Comments on Filed Rules by the Australian Industrial Registry - Actions Taken.

EXHIBIT #ACSEA8 DOCUMENT ENTITLED COMMENTS ON FILED RULES BY THE AUSTRALIAN INDUSTRIAL REGISTRY - ACTIONS TAKEN

PN38

MR MOLONEY: Then there’s a copy of a set of amended rules which is simply headed up with the name of the applicant organisation.

EXHIBIT #ACSEA9 COPY OF A SET OF AMENDED RULES

PN39

MR MOLONEY: Finally we have a statutory declaration from Susan Jane Cislowski, C-i-s-l-o-w-s-k-I, who is a member support officer of the applicant organisation, employed as a member support officer.

EXHIBIT #ACSEA10 STATUTORY DECLARATION OF SUSAN JANE CISLOWSKI

PN40

MR MOLONEY: Thank you, your Honour. The Commission would be aware that the applicant has been in contact with the Australian Industrial Relations registry, organisations’ branch, and we have undertaken some extensive consultation in relation to the rules and the contents of the rules, given that there was a degree of uncertainty, in the applicant’s mind anyway, as to what the requirements of the rules were; and particularly given their status as a state registered body going to transitional registration then seeking full registration in their limited geographic territory. To that end we sought the assistance of the registry and I can say that exhibits 5, 6 and 7 were the result of those consultations with the registry. That’s the source of those documents.

PN41

Exhibit 3 and 4, your Honour, which are the statutory declarations of Mr Fazldeen and Mr Shields, really relate to a bit of a history of the state rules. The state rules were subject to some amendment, subject to a decision of the Queensland Industrial Relations Commission, and they were subsequently modified to accord with the requirements of the Queensland Industrial Relations Act 1999.

PN42

Mr Shields’s affidavit really walks the reader through the process that was utilised to modify those rules to accord with the requirements of the Federal Act and what changes are necessary. Mechanical changes were required to those rules to accord with the requirements of the Federal Act.

PN43

Subsequent to that then we have the comments from the registry office, which dealt with three particular issues in essence. They were firstly comments on the eligibility rule and the requirements of regulation 21 of the Act and regulations. Secondly, comments on the eligibility rule and issues associated with section 18A3 of schedule 1 of the Act. Thirdly, comments on the rules as a whole that the registrar ordinarily has powers to certify under section 159 of schedule 1.

PN44

If I can deal with those issues perhaps in reverse order, your Honour, disposing of what we think are the less contentious items first. The document that’s numbered exhibit 7 probably is best read in conjunction with exhibit 8. Exhibit 8, which is behind tab number 8, in a practical sense sets out the comments that the registry had made about the rules. Many of those were grammaticals, typographicals, clerical corrections et cetera, all of which have been attended to and which are then reflected in the revised rules which are exhibit 9.

PN45

There are two matters that arise from that schedule and those two matters relate to rule 17C and rule 35(4). Shortly put, those two issues in rule 17C relate to provision about the organisation being able to levy its members for - sorry, to raise a levy on its members. The officer from the registry office thought that the quantum of that level, which is a maximum of $10,000 was perhaps too much or a bit oppressive.

PN46

Our submission would be simply to say in this day and age of expensive litigation a $10,000 levy is probably not unreasonable, and it’s also a maximum amount, it’s not a set amount. It is a maximum and it would need to be somewhat extraordinary to raise that quantum of levy, but it allows I guess for future movements. We would say it’s not an unreasonable quantum.

PN47

There has been no objection from either the members or the board of management of the association to that quantum. The association has not had a history of raising levies from its members in the past; it doesn’t expect to, but requires that provision in its rules as a precaution.

PN48

The comment about rule 35(4), if the Commission pleases, relates to a quorum. The comment was that a quorum of three for a general meeting may have been oppressive, even in circumstances when it is a meeting convened in place of a previous meeting where there was not a quorum. The association does not believe that that’s oppressive because its history has been that despite its membership of quite a few hundred members, there’s not a lot of interest in attending general members’ meetings unless there’s something extraordinary happening.

PN49

Quite often it’s difficult to actually get a quorum so the quorum below - it seems a low number - is not unreasonable given the history of the association. It’s also the same number that has been in its rules for some years so no real change there, but it was something that was drawn to our attention by the registry as something that needed to be considered or commented upon.

PN50

Other than that we would suggest that exhibit 8, which is the schedule of actions, indicates that in virtually every case we have either answered the question that was asked or we have amended the rule to ensure that it complies with the comments that have been made by the registry. Some of them are quite microscopic detail but important details such as rule 20 27(1), whether it should be a colon or a semicolon, but grammatically speaking that’s an important question.

PN51

There were others that simply say, “Well is this is a find and replace exercise?” and the answer to that is yes. So we’ve done some of that and we believe we’ve modified all of that to amend those rules as shown now in the amended rules exhibit 9.

PN52

THE SENIOR DEPUTY PRESIDENT: Have all those amendments been made in accordance with the rules?

PN53

MR MOLONEY: Yes, they have. The second issue that was raised, and that’s the comments on the eligibility rule and issues associated with section 18A(3) of schedule 1, deals with the associate membership rule. The associate membership rule isn’t limited to persons who are specified in the Act at section 18A(3) of schedule 1. The Commission would be aware that section 18A(3) indicates that:

PN54

An association of employers is not federally registrable if it has a member who is not one of the following -

PN55

And it sets out A, B, C, D:

PN56

The persons must be an employer. They were an employer who was admitted to membership. They must be a person who carries on a business or an officer of the association.

PN57

There’s no such limitation or specification in the rules that were filed on 17 April, your Honour. What we seek to do is in fact amend the rules that are currently before the Commission by adding a new rule 6(8) and a new rule 6(8) - this is in paragraph 5 of our written outline. It would pick up the wording of section 18A(3) of schedule 1 and basically pick up that wording in its entirety, in a whole new rule. So therefore associate membership rule would be subject to those limitations which would make it consistent with the Act then.

PN58

We would also make the comment that it appears to us, on the surface anyway, that when you read section 18A(3), that requirement is only at the time of registration. It’s not an ongoing commitment. We’re prepared to modify the rules to make it an ongoing commitment so it will apply into the future.

PN59

THE SENIOR DEPUTY PRESIDENT: Well in saying that - and you’re seeking that amendment by way of leave through section 25?

PN60

MR MOLONEY: We will be, yes. Yes, we will be.

PN61

THE SENIOR DEPUTY PRESIDENT: Are you about to go to that point now, because I just want to make some comments about the interaction of those two issues.

PN62

MR MOLONEY: Yes. So that’s the modification that we’re suggesting should be made.

PN63

THE SENIOR DEPUTY PRESIDENT: Sorry, can I ask is that the only modification to the rules that you’re seeking, the only amendment to the rules that you’re seeking, or are there other ones of a technical nature?

PN64

MR MOLONEY: The ones of a technical, typographical and grammatical nature are those that are all spelt out and set out in the exhibit 8.

PN65

THE SENIOR DEPUTY PRESIDENT: Yes, all right. I’ll let you come to those.

PN66

MR MOLONEY: So all of those require a minor amendment where we’ve amended it in accordance with the comments from the registry.

PN67

THE SENIOR DEPUTY PRESIDENT: Sorry, these are the ones you have - in ACSEA 8 these are the outstanding rule changes to which you’re seeking leave to amend?

PN68

MR MOLONEY: They are, and they are all incorporated now in exhibit 9.

PN69

THE SENIOR DEPUTY PRESIDENT: All right.

PN70

MR MOLONEY: So if we went to each one of these.

PN71

THE SENIOR DEPUTY PRESIDENT: These are ones that have been already amended in accordance with your rules?

PN72

MR MOLONEY: Yes.

PN73

THE SENIOR DEPUTY PRESIDENT: All right, because I’m just trying to work out in my mind the sequence the Act anticipates and what has actually happened.

PN74

MR MOLONEY: Yes, well we’ve gone back and we’ve amended them.

PN75

THE SENIOR DEPUTY PRESIDENT: Yes.

PN76

MR MOLONEY: Then I guess, your Honour, in a practical sense we’ve now brought those amended rules to the Commission in a fully documented amended set.

PN77

THE SENIOR DEPUTY PRESIDENT: So if I can just draw this together.

PN78

MR MOLONEY: Yes.

PN79

THE SENIOR DEPUTY PRESIDENT: It’s probably best if we go to rule 25. You’re seeking, by way of rule 25, to amend your rules so that they conform with schedule 1?

PN80

MR MOLONEY: Yes. Yes, we would be seeking leave of the Commission to amend those rules.

PN81

THE SENIOR DEPUTY PRESIDENT: Yes, the leave that you’re seeking, the purpose of the amendment relates to your perceived concern in respect of the scope of the definition of your eligibility clause as it relates to section 18A(3); and in relation to various technical amendments specified at exhibit ACSEA 8?

PN82

MR MOLONEY: That’s correct, and we seek that under section 25(1)A and C, schedule 1 chapter 2 part 2 of the RAO, your Honour. So we will be seeking that leave to amend.

PN83

THE SENIOR DEPUTY PRESIDENT: Perhaps I’ll let you get to that point and then we’ll have some discussion about it.

PN84

MR MOLONEY: Yes. Your Honour, that’s the amendment that we seek to make to rule 6, the associate membership rule. I would add there that in terms of the associate membership of the association, the statutory declaration, which is exhibit 10, of the membership services officer, indicates that there is one associate member of the association and that associate member is an employer and hence fits the criteria of section 18A(3) of schedule 1.

PN85

We then have the issue as well, your Honour, which was the third matter raised by the registry and that’s actually the comments on the eligibility rule itself, and its interaction with the associate membership rule. The blunt argument being that someone who may have seen the gazettal notice may not have picked up the subtlety of the associate membership rule when reading the rules, and may not have appreciated that those associate members do have rights under the rules. Therefore should the application need to be re-gazetted in case there were some other person or organisation that may still have an interest in the application.

PN86

Our answer to that is to say we don’t believe that that’s required, nor necessary. We set out reasons at paragraph 6 of our outline of submissions, your Honour, as to why we don’t believe that should happen, but the essence of the argument is to say that this application is limited geographically to Queensland in any event. To our knowledge there are no other federally registered organisations that have coverage in Queensland, federal organisations of employers who could legitimately object to this application for registration.

PN87

The one organisation that would have an interest has declared that interest, that being the ASU, and that objection has been satisfied. So we don’t believe that it’s necessary to re-gazette. If the Commission were to determine that the original gazettal notice may have been defective or deficient, then we would seek
leave - - -

PN88

THE SENIOR DEPUTY PRESIDENT: I must admit I don’t quite understand the notion of a defective gazettal because I don’t know where there’s any obligation in the Act, or the rules for that matter, that require an eligibility clause to comprise part of the gazettal. I mean, if I recall the wording of the Act it’s no more than that the application be notified.

PN89

MR MOLONEY: Yes.

PN90

THE SENIOR DEPUTY PRESIDENT: But I don’t know where there’s any prescription as to the eligibility clause must form part of the gazettal.

PN91

MR MOLONEY: Except that they do publish the eligibility rule in the gazettal notice.

PN92

THE SENIOR DEPUTY PRESIDENT: Well yes, but that’s a discretionary decision by the registry, presumably.

PN93

MR MOLONEY: Yes.

PN94

THE SENIOR DEPUTY PRESIDENT: The Act would be discharged by simply, I presume, notifying that it has received an application for registration by an organisation of employers in the following field.

PN95

MR MOLONEY: We’re certainly happy with that interpretation, your Honour.

PN96

THE SENIOR DEPUTY PRESIDENT: Well I don’t know where there’s any prescription as to the requirements of the content of gazettal, and the gazettal process is required to discharge an obligation to give notification of an application.

PN97

MR MOLONEY: Yes.

PN98

THE SENIOR DEPUTY PRESIDENT: But that’s the extent and warrant of the registry. To go further and to provide further information about particulars of that application may arise from some discretionary judgments as to what ought to form a relevant body of information to form part of that gazettal.

PN99

MR MOLONEY: Yes.

PN100

THE SENIOR DEPUTY PRESIDENT: But I’m not sure it is in itself. An absence of a discretionary item included in the gazettal could constitute a defective gazettal. It would appear to me that the purpose of the gazettal is to notify of the intention to seek application or to notify the application, and consequent of the notification of that application, means are provided in the gazettal to obtain a full copy of the application. I think from memory in the gazettal itself you can acquire a copy through writing to a particular address.

PN101

MR MOLONEY: Yes.

PN102

THE SENIOR DEPUTY PRESIDENT: Or by contacting a particular person or by downloading it directly from the internet.

PN103

MR MOLONEY: That’s correct.

PN104

THE SENIOR DEPUTY PRESIDENT: I suspect that the Act anticipates nothing more than that, and should gazettal go further than that and provide further information, then that’s a discretionary consideration by other persons. But I don’t know how it can give rise to some claim of a defective gazettal requiring a recommencement of an application, in effect, which is what it would amount to.

PN105

MR MOLONEY: I think the concern, your Honour, was that the issue of the associate membership wasn’t, as it were, disclosed in the gazettal; and as you correctly say, it’s not required to be; and there may have been some other organisation that may have had an interest but none has been brought to our attention.

PN106

THE SENIOR DEPUTY PRESIDENT: As you say, even in circumstances whether that was true and it was a potential for the gazettal to mislead a potential objector, which is probably more to the point I suspect.

PN107

MR MOLONEY: Yes.

PN108

THE SENIOR DEPUTY PRESIDENT: It’s not about a defective gazettal. It’s really about a potential for a notification that was provided through the gazettal to mislead a potential objector, or you have given reasons by. That’s unlikely, given the geographical scope of ACSEA, given that there was an objector in the field, so to speak, and in respect of that objector an undertaking was given in terms which satisfied that objector as to the very issue of eligibility.

PN109

MR MOLONEY: Yes.

PN110

THE SENIOR DEPUTY PRESIDENT: So the objector was satisfied on the undertaking, irrespective of whether or not it saw the eligibility clause in its totality.

PN111

MR MOLONEY: It was indeed and I have to say no tales out of school, but the objector didn’t even seek a copy of the application or the rules, but they were aware what was in it. Certainly the case precedents that we examined in terms of a CSR officers’ decision and the one with the CEPU and the LHMWU clearly indicate that if you narrow your eligibility rule, then there’s no really for further gazettal.

PN112

In this case we would probably say that by including those criteria about section 18A(3) into the rules we have in fact narrowed the associate membership rule from what it originally was, and brought it back to those criteria as per the Act.

PN113

So our submission certainly would be to say that we don’t believe there’s any real need for re-gazettal of the application, which would in our view cause a further delay and perhaps some prejudice to the applicant. But it was a matter that was raised with us and we needed to respond to it, I believe, for the Commission’s information.

PN114

There was one further matter, your Honour, that was raised in relation to the application itself and also the rules, and that was the decision from earlier this year in the matter of the Australian Furniture Removers’ Association Inc application for registration. The decision of the Commission in that matter raised a question at least as to what rule should apply when the organisation is registered.

PN115

We simply say in that particular matter we can draw a very large distinction between the circumstances in that case and the circumstances in this one. In that case the applicant association in that matter, for their own very good reasons, simply did not seek leave of the Commission and didn’t seek to avail itself of the provisions of section 25 to amend its rules; and specifically said, “Well we’re not going to use that because our rules have been designed for other purposes”.

PN116

THE SENIOR DEPUTY PRESIDENT: You’re quite right that the decision makes no reference to there being an application made under section 25 of schedule 1 to amend the rules, such that they could come into conformity with schedule 1. At least on my reading of that decision, it’s not an application that’s apropos to the current circumstances, but I’ll come to that and I’ll discuss those shortly.

PN117

MR MOLONEY: Yes.

PN118

THE SENIOR DEPUTY PRESIDENT: But in any event you may have wide knowledge which confirms that, I suspect, but on its face the decision itself reveals no application by rule 25.

PN119

MR MOLONEY: No, and in paragraph 11 - - -

PN120

THE SENIOR DEPUTY PRESIDENT: It’s distinguishable from this.

PN121

MR MOLONEY: Yes, in paragraph 11 dot point three, where the Commission repeated the applicant’s submissions, dot point three very clearly says that the applicant association said that its rules had existed prior to registration, and that they were adopted for reasons other than for registration.

PN122

So it’s quite clear that they had other purposes in mind and we say that’s not the case here. We don’t have other purposes in mind other than seeking registration under the terms of the Act. So to that extent we say it certainly raised some serious questions in peoples’ minds, including ours, but we say the circumstances are different and we don’t need to follow that decision at all because it deals with different circumstances. But it was raised with us as a matter of some concern that we should examine and see whether it had any impact. Our submission would be that it doesn’t have any impact on this application.

PN123

Your Honour, we then move to the application for leave to amend, and our application, as I say, is under section 25(1)A and C. What we seek to do is to amend the rules that were filed on 17 April, a copy of the rules, and to replace those in their entirety with a revised document which is now marked exhibit 9.

PN124

THE SENIOR DEPUTY PRESIDENT: Can I at this point just have some discussion with you about - I want to have a discussion with you concerning section 18A(3) but then subsequently how it interacts with section 25 itself, of schedule 1.

PN125

First of all, in respect of 18A(3) - sorry, I will start with section 25(1). Section 25(1) reads as follows:

PN126

That the Commission may on the application of an association -

PN127

And we will come to the issue about what an application is shortly, but first of all:

PN128

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 that the Commission considers appropriate to change its name or alter its rules and in respect of subsection A, to enable it to comply with this schedule.

PN129

Now I presume it’s 25(1)A that is the basis of the grant of leave that you’re seeking in order to bring the application within conformity with schedule 1?

PN130

MR MOLONEY: Correct.

PN131

THE SENIOR DEPUTY PRESIDENT: My first question is in respect of the eligibility rule which, again I shouldn’t do this but from memory I think it was rule 6(8)?

PN132

MR MOLONEY: Yes.

PN133

THE SENIOR DEPUTY PRESIDENT: It was rule 6(8), as it interacts with section 18A(3) of schedule 1; why do you believe your rules are not in conformity with schedule 1?

PN134

MR MOLONEY: Well I think we would probably say in the first instance, your Honour, we believe they are. Section 18(A)3

PN135

THE SENIOR DEPUTY PRESIDENT: That’s the critical question.

PN136

MR MOLONEY: Yes.

PN137

THE SENIOR DEPUTY PRESIDENT: Because if you believe that they are, and I’m inclined at this point to think that they may well be.

PN138

MR MOLONEY: Yes.

PN139

THE SENIOR DEPUTY PRESIDENT: Then how do they attract the jurisdiction of 25(1)A, if they are indeed - that’s in respect of that particular amendment that you’re seeking.

PN140

MR MOLONEY: Yes.

PN141

THE SENIOR DEPUTY PRESIDENT: How do they attract the jurisdiction, the grant of leave, the necessity to grant leave?

PN142

MR MOLONEY: Well it may be, to use the colloquial your Honour, just simply a case of a bit of overkill on the part of the applicant. It was, as I say, raised with us as an issue of some concern.

PN143

THE SENIOR DEPUTY PRESIDENT: Yes, and the exhibits demonstrate that that’s the case and you have been - - -

PN144

MR MOLONEY: We have no difficulty with complying as we’ve sought to amend. But if the Commission doesn’t believe that that’s a necessity.

PN145

THE SENIOR DEPUTY PRESIDENT: But clearly, and I think you have raised it previously in passing, the wording of 18A(3) is in such a tense as to suggest that at the time of registration, and in order to be federally registrable in that continuum, in that tense, a certain factual situation cannot come to pass.

PN146

MR MOLONEY: That’s right.

PN147

THE SENIOR DEPUTY PRESIDENT: The factual situations are that you can only have as your members the following categories of - you can only enlist the following categories of members, as per the four prescribed categories.

PN148

MR MOLONEY: Yes.

PN149

THE SENIOR DEPUTY PRESIDENT: The exhibit 10 satisfies me factually that at this moment you have enlisted no members other than the requisite type.

PN150

MR MOLONEY: That’s correct.

PN151

THE SENIOR DEPUTY PRESIDENT: Section 18A(3) of schedule 1 would appear to be satisfied, because of the work that that section 18(A)3 of schedule 1 does. The work it does not do, it does not require me to assess your eligibility rule, to evaluate the eligibility rule. It doesn’t require that. It requires me to be satisfied about a certain factual situation at the time of this application.

PN152

MR MOLONEY: Yes.

PN153

THE SENIOR DEPUTY PRESIDENT: Then equally so, and as I suppose a sort of belt and braces exercise to some degree, section 31C(5) of schedule 1 provides a power to the Commission upon the Commission’s own motion to, in effect, counsel the registration of an organisation if it is no longer federally registrable. That is in the words of subsection R:

PN154

The organisation is not or is no longer a federally registrable association.

PN155

Which would mean if your factual situation alters in the future, in contravention to the requirements of 18A as they were at the time of registration, then the association, then the association may be de-registered.

PN156

MR MOLONEY: That’s correct.

PN157

THE SENIOR DEPUTY PRESIDENT: And have its registration cancelled.

PN158

MR MOLONEY: Yes.

PN159

THE SENIOR DEPUTY PRESIDENT: Now that means the Commission must be satisfied at the point at which registration is sought, as to the factual situation in relation to whether or not the requisite type of members have been enlisted at that point.

PN160

MR MOLONEY: Yes.

PN161

THE SENIOR DEPUTY PRESIDENT: On an ongoing basis, in the event there is a contravention of section 18A(3) of schedule 1 in the future, then the organisation may have its registration cancelled. Now given the interaction of those two requirements at 18(A)3 and at section 31C(5) of schedule 1, I’m just wondering whether at this point the jurisdiction at section 25 can be excited or attracted; because arguably there is no contravention of schedule 1 in respect of that particular matter.

PN162

MR MOLONEY: No, we don’t seek to correct any contravention, your Honour. I guess to use your Honour’s phrase of a belt and braces approach, I think what we’re trying to do is act in an abundance of caution.

PN163

THE SENIOR DEPUTY PRESIDENT: I understand, because the issue has been put squarely in front of you.

PN164

MR MOLONEY: Correct.

PN165

THE SENIOR DEPUTY PRESIDENT: As an issue of some substance. But again I just read that the jurisdiction to grant leave at 25(1)A is to enable it, it being the application, to comply what the schedule. So my discretion to grant leave is only triggered on a finding that it’s necessary to grant leave, to enable the application in that respect to comply with the schedule, when arguably you do comply with the schedule.

PN166

MR MOLONEY: Yes.

PN167

THE SENIOR DEPUTY PRESIDENT: So whether it’s a belt and braces, a security measure, a safety net measure, an attempt to address an issue of concern raised, and in that which you have quite properly responded, I’m not sure whether, short of me being able to determine that you are not in compliance with the schedule, I could grant you leave in that respect.

PN168

MR MOLONEY: I wonder, your Honour, whether we stretch the English language and refer to it as an ambiguity as contemplated under 25(1)C.

PN169

THE SENIOR DEPUTY PRESIDENT: Yes, 1C is interesting, isn’t it?

PN170

MR MOLONEY: It covers all sins, doesn’t it?

PN171

THE SENIOR DEPUTY PRESIDENT: Well yes, but that’s the parenthesis and I’m not sure there’s an ambiguity. First of all, subsection 1 of 25(1)C is to correct a formal error in the rules, and I’m not sure an issue such as this constitutes a formal error.

PN172

MR MOLONEY: Yes.

PN173

THE SENIOR DEPUTY PRESIDENT: I see that there are other words in parenthesis afterwards, but it’s not an ambiguity that arises from a formal error. If you were to tell me that there was something in your drafting that you inadvertently inserted, I don’t think that would be the case historically, as you look at your rules.

PN174

MR MOLONEY: No.

PN175

THE SENIOR DEPUTY PRESIDENT: I mean I’m not trying to count the fairies on the tip of the pin.

PN176

MR MOLONEY: No, no.

PN177

THE SENIOR DEPUTY PRESIDENT: But I just don’t know whether you have a problem such that it constitutes a difficulty in relation to compliance with the schedule that reasonably invites the exercise of my discretion.

PN178

MR MOLONEY: Your Honour, we might take the counsel of the Commission on this matter and say if the Commission does not believe that the alteration that we have proposed is really necessary, then we’re happy not to pursue that because it simply adds another layer of complexity to it, which may well be changed by legislation in the future and then we’re stuck with what we’ve got in our rules.

PN179

THE SENIOR DEPUTY PRESIDENT: Yes. Look, I just want to give you some time to - I’ve caught you on the hop, as it were, in relation to this matter. I might just give you some moment just to digest what I’m suggesting so we might just adjourn for a minute or two.

<SHORT ADJOURNMENT [1.48PM]
<RESUMED [2.00PM]

PN180

THE SENIOR DEPUTY PRESIDENT: Thanks everyone. We have just had some discussion about procedure. I’ve given Mr Moloney, as agent for the applicant, an opportunity to discuss with the applicant the approach that I’m proposing in relation to the possible construction of section 18AS(3) of schedule 1.

PN181

In my view I cannot, on the face of it, discern non-compliance in the application with the requirements of the schedule. The schedule in my view expressly requires me to be satisfied of a factual situation, of which I’m satisfied by way of the affidavit provided at exhibit 10; as to whether or not the requisite type of members being enlisted, in my view there is no contravention of section 18A(3) at this juncture, at the point of registration. As a consequence of that factual situation being in evidence, I cannot find that ACSEA is not federally registrable in the tense provided for in the Act.

PN182

Equally so, I note further that in the event ACSEA should cease to be federally registrable for the purposes of section 18(A)3 of the Act, then the Commission may at its own motion cancel the registration of ACSEA . In such circumstances as that, in general I do not see that my jurisdiction under section 25 of schedule 1 is excited for reasons that there is no contravention or non-compliance with schedule 1 in relation to the request to amend the rules of ACSEA, particularly in respect of subrule 6(8) of ACSEA’s rules.

PN183

I should say first of all, Mr Moloney, that that is the construction which I prefer on my reading of the Act. I’ve given you an opportunity to consider that construction yourself, and it’s for you to expressly consider whether or not you think such a construction places you potentially in any jeopardy or situation of uncertainty for the future; and whether or not you contest that construction or are prepared to accept that as a legitimate construction upon which your application ought to proceed.

PN184

MR MOLONEY: Your Honour, we’re happy to accept the Commission’s interpretation of section 18(A)3, and to that extent we then say we don’t pursue to amendment to the rule, by adding that new rule 6(8) to the rules as filed. We don’t pursue that on the basis that we believe and accept that the application of the rules as filed fulfils the requirements of section 18(A)3 as they are at the moment.

PN185

THE SENIOR DEPUTY PRESIDENT: Another issue, however, arises in relation to section 25 of schedule 1 and that is in respect of the various, what we would call technical amendments as specified at exhibit ACSEA 8. You seek that those technical amendments specified at ACSEA 8 be the subject of a grant of leave for the purposes of section 25; am I right in that regard?

PN186

MR MOLONEY: That’s correct, your Honour, we do.

PN187

THE SENIOR DEPUTY PRESIDENT: They arise under which one? This is under section 25(1)C or?

PN188

MR MOLONEY: Your Honour, they would arise under 25(1)C in that there are a range of matters set out in that exhibit 8 which, as I said earlier, relate to typographical matters, some ambiguities, some spelling errors, despite our best intentions.

PN189

THE SENIOR DEPUTY PRESIDENT: Yes, they do fall generally into the bailiwick of corrections of formal errors, and in the examples given and in the parenthesis of 25(1)C suggest are to correct spelling and grammatical errors, incorrect references to organisations and persons and ambiguities.

PN190

MR MOLONEY: Yes.

PN191

THE SENIOR DEPUTY PRESIDENT: They all appear to me to be precisely rule matters that fall into that category.

PN192

MR MOLONEY: Your Honour, there are two issues there that we’ve addressed already, where there is no change. That’s rule 17C and rule 35(4). I’ve already explained those to the Commission, as to why we haven’t s ought to change those at all.

PN193

THE SENIOR DEPUTY PRESIDENT: Yes, and in my view they’re not matters that fall into that category.

PN194

MR MOLONEY: No.

PN195

THE SENIOR DEPUTY PRESIDENT: They are matters that have a rationale to them, and don’t warrant a requirement to amend and otherwise do not, in my view, appear to cause any suggesting the contravention of any element of the requirements of schedule 1.

PN196

MR MOLONEY: Your Honour, that leaves us with that application to seek to amend.

PN197

THE SENIOR DEPUTY PRESIDENT: Yes. I might just work through that issue for us.

PN198

MR MOLONEY: Yes.

PN199

THE SENIOR DEPUTY PRESIDENT: We’ve had some opportunity to discuss this during the adjournment and the Act appears to envisage that an application to amend the rules ought to be made, and it ought to be made by way of regulation 27. That is to say, an application under section 25 of schedule 1 ought to be made by way of an application.

PN200

I could read section 25(1) and suggest that the reference to an application is no more than the application that existed previously, that is the original application, but I don’t think that’s a viable reading because regulation 27 suggests that:

PN201

An application to change the name or amend the rules under section 25 must be in the form set out in the rules of the Commission or in a form otherwise approved by the President and lodged in the industrial registry.

PN202

That requirement is subject to a discretionary direction of the Commission to do otherwise, and I’ll address those issues now.

PN203

There is no form set out in the rules of the Commission in relation to the method of making this application under regulation 27. There is no rule and there is consequently no form, and in such circumstances the form that an application would be required to take would be the ubiquitous general form utilised by the Commission.

PN204

It is my view that such an application has not been made in the current circumstances. That is, the requirements of section 27 on their face have not been met. However, regulation 27 demonstrably suggests that the Commission has a discretion in the circumstances to otherwise direct the manner in which an application may be made. Rule 6 of the Commission’s rules also provides the Commission with the discretion to provide for non-compliance with the rules, as a discretionary consideration.

PN205

In either respect, in my view, it is appropriate in the current circumstances to accept an application by the applicant to amend its rules and to accept that application on transcript; and for that application to effectively be lodged in the Commission by way of the acceptance of that application on transcript.

PN206

As I said, there is no rule of the Commission applying, applicable in these circumstances, in no specific or prescribed form. It cannot be said that by exercising my discretion, either by rule 6 or by otherwise directing pursuant to regulation 27, that there is any substantive obligation that has been set aside unilaterally.

PN207

In my view in order to reduce sensibly and reasonably the transaction costs of the applicant, and in the circumstances where there is no untoward motivation or prejudice to be flowing to any particular objector or party, that I ought to actively facilitate the passage of the application.

PN208

So that is my conclusion in regards to the requirements of the Act in that regard, and the application having been made and having been taken to be lodged in the registry by way of my direction, the obligation that falls on the applicant is to satisfy the requirements of regulation 28 in such circumstances.

PN209

Those requirements are express and I would anticipate, Mr Moloney, that you would notify me by affidavit that that regulation 28 has been complied with at the appropriate point. I leave that matter for you.

PN210

MR MOLONEY: Your Honour, we would undertake to do that in 48 hours.

PN211

THE SENIOR DEPUTY PRESIDENT: Sorry to interrupt you. Yes, I should just interrupt you and say before I get too far removed from it, I’ve granted the application in terms on which I’ve otherwise directed the application to be made in relation to the amendments which are sought. The amendments which are sought are those which are specified in exhibit 8.

PN212

MR MOLONEY: That’s correct.

PN213

THE SENIOR DEPUTY PRESIDENT: I may not have attached my finding and exercised my discretion to exhibit 8, bar the two matters at rule 17C and subrule 35(4).

PN214

MR MOLONEY: Yes.

PN215

THE SENIOR DEPUTY PRESIDENT: That’s correct?

PN216

MR MOLONEY: That’s correct, your Honour.

PN217

THE SENIOR DEPUTY PRESIDENT: They are the amendments that are sought, with those two exceptions, and they are the amendments which I have granted leave for you to amend, pursuant to my exercise of the discretion at regulation 27. Sorry, I just needed to tie those matters together.

PN218

MR MOLONEY: That’s fine. Your Honour, subject to that process occurring, as I say we undertake to do that within 48 hours; to lodge those in the registry. We believe that we have satisfied the requirements and the criteria for registration of section 19 part 2 chapter 2 schedule 1 of the Registration and Accountability of Organisations.

PN219

We would seek, if not a decision, certainly an indication from the Commission that there is, again subject to those amended rules being filed, no reason why the association is not federally registrable in the form as sought. That’s the application that we seek today.

PN220

THE SENIOR DEPUTY PRESIDENT: Yes, well as to the decision on registration I will need to be satisfied that regulation 28 has been given effect, and I will wish to confer with the registry as to whether it has any outstanding issues or concerns in relation to conformity with schedule 1, which ought not to be a delay of any consequence.

PN221

Subject to those matters being satisfied I see at this point, on the material before me, no bar to the federal registration of the association such that it would be a federally registrable association.

PN222

MR MOLONEY: Good, thank you. We have nothing further, your Honour.

THE SENIOR DEPUTY PRESIDENT: Nothing further, Mr Moloney?

PN223

MR MOLONEY: Nothing further.

PN224

THE SENIOR DEPUTY PRESIDENT: Good, thank you. We are adjourned.

PN225

MR MOLONEY: Thank you for your assistance.

<ADJOURNED INDEFINITELY [2.13PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ACSEA1 LETTER FROM THE AUSTRALIAN SERVICES UNION TO THE INDUSTRIAL RELATIONS COMMISSION DATED 01/08/2008 PN17
EXHIBIT #ACSEA2 LETTER SIGNED BY SECRETARY OF ACSEA, ALLAN FAZLDEEN REGARDING BRANCH OFFICES OF THE ASSOCIATION PN26
EXHIBIT #ACSEA3 STATUTORY DECLARATION OF ALLAN DANIEL FAZLDEEN FILED ON 29/05/2008 PN27
EXHIBIT #ACSEA4 STATUTORY DECLARATION OF RYAN STEVEN SHIELDS FILED ON 29/05/2008 PN28
EXHIBIT #ACSEA5 DOCUMENT ENTITLED COMMENTS ON THE ELIGIBILITY RULES OF THE AUSTRALIAN COMMUNITY SERVICES EMPLOYERS ASSOCIATION, QUEENSLAND UNION OF EMPLOYERS AND REQUIREMENTS OF REGULATION 21 OF RAO AND FORM R69 PN29
EXHIBIT #ACSEA6 DOCUMENT ENTITLED COMMENTS ON THE ELIGIBILITY RULES OF THE AUSTRALIAN COMMUNITY SERVICES EMPLOYERS ASSOCIATION, QUEENSLAND UNION OF EMPLOYERS AND APPLICATION OF SECTION 18A3 OF THE WORKPLACE RELATIONS ACT PN30
EXHIBIT #ACSEA7 DOCUMENT ENTITLED COMMENTS ON THE RULES OF THE AUSTRALIAN COMMUNITY SERVICES EMPLOYERS ASSOCIATION, QUEENSLAND UNION OF EMPLOYERS VERSION 3 PN32
EXHIBIT #ACSEA8 DOCUMENT ENTITLED COMMENTS ON FILED RULES BY THE AUSTRALIAN INDUSTRIAL REGISTRY - ACTIONS TAKEN PN37
EXHIBIT #ACSEA9 COPY OF A SET OF AMENDED RULES PN38
EXHIBIT #ACSEA10 STATUTORY DECLARATION OF SUSAN JANE CISLOWSKI PN39