D2014/53, Transcript of Proceedings [2014] FWCTrans 256 (9 May 2014)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1049915-1

DEPUTY PRESIDENT LAWRENCE

D2014/53

s.18(a) RO Act - Application for registration by an association of employers

Application/Notification by Association of Independent Schools of South Australia
(D2014/53)





Sydney

10.15AM, FRIDAY, 2 MAY 2014

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN SYDNEY

PN1

ASSOCIATE: D2014/53, section 18(a) of the RO Act, application by the Association of Independent Schools of South Australia for registration by an association of employers. This matter is for hearing.

PN2

THE DEPUTY PRESIDENT: Appearances please.

PN3

MR S. DOWD: Good morning, your Honour. Dowd, initial S., is my name. I see your Honour’s permission to represent the Association of Independent Schools of South Australia Inc., in this matter. I do so on the (indistinct) basis that perhaps my attendance may help the commission deal with the matter more efficiently but I hope I’m not overstating it.

PN4

THE DEPUTY PRESIDENT: No, I’m sure you’re right, particularly given that there’s no other appearances and no objection, I’ll grant permission under section 59(6). Mr Dowd, I’ve read the application and the report that’s been provided by the registry, so I think I’m familiar with the application. I might say that we’re getting a little bit of noise here in Sydney, partly as a result of renovations which are taking place and we’ve got people moving around the building today, so if you hear a little bit of noise that’s what it’s from. Apologies for that. Do you want to speak to the application?

PN5

MR DOWD: Yes. I say this your Honour, this is the way I had in mind to approach this matter, subject to any guidance I may get from your Honour, that is first I thought that we would walk through very briefly the form 55, just to make sure you’ve got everything in front of you. I will then turn to the regulations and have a look at the attachments to the application, comparing those to regulations, in particular of course regulation 21 and then I will visit section 19 and section 18 of the Act, just to make sure we kick off the requirements there. Does that meet your Honour’s pervadens?

PN6

THE DEPUTY PRESIDENT: There’s no objection been lodged to the application for registration, so that’s the crucial question. I imagine that we should be able to deal with the matter today and then issue a decision, I would think. There are a couple of relatively minor questions that occur to me from looking at the material but it may be that they’re answered in your explanation in any event. So proceed.

PN7

MR DOWD: Thank you, your Honour. Can I just check with your Honour that you have the application filed on 4 February, together with some attachments that go through (a) to (f)?

PN8

THE DEPUTY PRESIDENT: Yes.

PN9

MR DOWD: Thank you, sir. I’m instructed that in the published government notices gazette, see 2014G00291, dated 17/2/2014 this application has been published in accordance with regulation 22 of the Fair Work Registered Organisations Regulations and your Honour probably has that before you.

PN10

THE DEPUTY PRESIDENT: Yes.

PN11

MR DOWD: It’s also been published on the Fair Work Commission’s website on that same date. The time for making of any objections has closed. There have been no objections as I understand the matter and your Honour has confirmed that this morning - - -

PN12

THE DEPUTY PRESIDENT: Yes.

PN13

MR DOWD: - - - from your Honour’s position. If I might call the Association of Independent Schools of South Australia, AISA as it is known in this state, AISA is a transitionally recognised association. That appears to be the case from FWC’s own website (indistinct) organisation code 1068. If I could then take your Honour in turn to regulation 21 and the attachments. Regulation 21 deals with the application for registration and sets out the requirements. 21(1) provides that:

PN14

An application by an association under section 18 of the Act for registration must meet these requirements.

PN15

Just let me pause there. This is an application under section 18 of the Act. So the requirements are that we set out in (indistinct) set out the procedural rules. Your Honour can see that that’s been met. The contained declaration that’s at (b), I’ll not take up your Honour’s time by reading all of this in full. The declaration your Honour will find being attachment (f), that it be lodged with FWC. Plainly it’s been lodged and that it be lodged with the following documents. In this regard, I’m referring to 21(d)(i). That’s a list of the members of the association, showing the name and postal address of each member; you’ll find that in attachment (b). A list of the officers in the association and in each branch of the association; you’ll find that in attachment (e). A list of the names, postal addresses and occupations of the persons holding the offices; you’ll find that in attachment (e). The next one which is (indistinct) (iv) is not applicable to this association, that’s a list of branches. At (v) the rules of the association and the rules of each of its branches, well in this case it’s the rules of the association; you’ll find in attachment (c). And a copy of the resolution in favour of the registration of the association as an organisation, passed in accordance with the rules, you will find in attachment (d).

PN16

I’ve already made mention in so far as the gazette, or the publication is concerned and I now understand, I’m sure your Honour’s file reflects it’s regulation 22, has been satisfied.

PN17

THE DEPUTY PRESIDENT: Yes.

PN18

MR DOWD: If I could then take you to the Act, sir, with regard to section 19 of the Act, being the legislation criteria. That provides, and I don’t intend to tell you what you’ve heard no doubt often enough. This honourable commission must grant an application for registration made by an association, made under section 18, may apply for the registration. So that directs our attention to section 18 of the Act and this is an application under section 18(a) and indeed that then redirects our attention – and I’m sorry about this but it seems to me to be the way the Act is structured - - -

PN19

THE DEPUTY PRESIDENT: Yes.

PN20

MR DOWD: - - - to 18(A) and in our case (i)(b). Let me pause and say there that we’re dealing with a federally registrable employer association. The provision is that an association of employers is federally registrable if it is constitutional corporation. We don’t make that as our (indistinct) we take the some or all of its members are federal system employers. We say two things about that, if I could direct your Honour’s attention to the attachment (b) you will find a number of pages of members of AISA. Does your Honour have that?

PN21

THE DEPUTY PRESIDENT: Yes, I do.

PN22

MR DOWD: There are two pages in all. If your Honour just looks down the school name, you go down about five, six, seven, you’ll see Eynesbury Senior College Incorporated, below that (indistinct) College Incorporated. It’s not hard to pick up the Incorporateds if you go to the next page there’s one second from the top, which is Springhead Trinity, below it (indistinct) St John’s Grammar School. So we see that some of these entities are incorporated entities but even putting that to one side, we say this is the position in relation to this applicant and the application of 18(A)(1)(30) where a non-government school, and that’s what these schools are, is run by a non-corporate entity, whether or not it is a national system employer depends on the referral powers on South Australia to the Commonwealth under the Fair Work Common Law Powers Act 2009 (SA). So our state (indistinct) because the extended meaning of national system employer, and indeed national system employee, under sections 30M and 30N of the Commonwealth Fair Work Act 2009. Your Honour may be aware of this, but just for completeness, I say this, the referral powers from South Australia to the Commonwealth under the South Australian Act to which I just referred, determines the extent of the referral in the negative. That is, it sets out what is not referred and the power to regulate (indistinct) employer and employees is referred to the Commonwealth. So looking for what is not referred because everything else is referred. Because non-government schools do not fall within the list of non-referred matters in section 6 of this state’s Act, that’s the Fair Work Commonwealth Powers Act, schools, where not already a constitutional corporation, are given the status of a national system employer under section 30M of the Fair Work Act. It’s all a little bit ponderous but made a little easier when we actually have a look at the Act.

PN23

Section 6 of the state Act is quite relatively brief, the part that I will exert to your Honour, simply says this, it’s (indistinct) matters excluded from the reference. It goes on, a matter referred by section 5, you can take it (indistinct) that’s the referring power and the referral was made:

PN24

Does not include:
a) matters relating to ministers, members of parliament, judicial officers or members of tribunals established by (indistinct) under a law of the state or;
b) matters relating to public sector employees or;
c) matters relating to persons engaged as a member of a minister’s personal staff or;
d) matters relating to persons

PN25

Then there are a number that drop down, again they’re dealing with courts, Administration Act, South Australian Police. If I may, perhaps, (indistinct) throw a blanket over it and say, government employees, so schools are not, to use the negative, identified as being not referred as employers and so they are, in this way, referred. And then, so that’s the state referral and then in a rather clean and neat, in a succinct way, if I may be so bold as to say so, the Fair Work Act 2009, as you know, has a definition of national system employer but to cater for this type of situation was amended and the inserted definition – sorry, was amended, inserting an extended definition and section 30N(4) (indistinct) which provides that, “a national system employer includes, any person in a state”, that is a referring state, South Australia is of course, because of this division, “so far as the person employs or usually employs an individual and a holder of an office to whom sub-section 30P(2) applies.” That is a matter that we need not spend any time on. So the schools are persons who usually employ and the powers to regulate them have been referred by the state Act.

PN26

If I can then take you to the association’s rules but unless you ask me to revisit them, I won’t spend long on them. We understand the association AISA’s rules to comply with the requirements of the Fair Work Registered Organisation Act and regulations. In that regard, and being mindful of the regulations, I commend to your Honour, in attachment (c) rule 3, which is the purpose of (indistinct) of the association and rule 4, and to a lesser extent rule 5, which deals with membership. These rules have, as I think your Honour knows from the report, already been before administrative members of employees, I think of this honourable commission, who have leant considerable assistance in ensuring that as far as they could, for your Honour to decide of course that the rules were compliant.

PN27

THE DEPUTY PRESIDENT: Yes.

PN28

MR DOWD: (indistinct)

PN29

THE DEPUTY PRESIDENT: Mr Dowd, can I say that – sorry to interrupt but I do have a report from the regulation compliance as is the custom in these matters, which goes through each of the rules and indicates compliance, including with the most recent legislation, which sometimes can be a difficulty in a new registration. But there is compliance and I’m satisfied, looking at that report and perusing the rules that there is general compliance in terms of the various administrative and organisational rules with the Fair Work Act.

PN30

MR DOWD: We were fortunate, I think we needed some guidance (indistinct) that tripping point that your Honour refers to as the most recent amendment - - -

PN31

THE DEPUTY PRESIDENT: No.

PN32

MR DOWD: - - - (indistinct) some of the decisions and it’s caught one or two as they’ve gone through.

PN33

THE DEPUTY PRESIDENT: Yes. I think I said the Fair Work Act then, of course I meant the Fair Work Registered Organisations Act, sorry.

PN34

MR DOWD: (indistinct) your Honour we understood. So if we accept the submission I put, that we have met the requirements of 18, if I can put it that way of the Fair Work Registered Organisations Act, in that we are a – some of our members are federal system employees but either (indistinct) incorporated or in the way in which I suggest that is the affirmative way, then it seems to me, with the greatest respect, what remains for consideration is the provisions of section 19 of the Act. In particular, the attachments (indistinct) to the application of course, I seek to address the matters in section 19 of the Act. I just want to pause and take your Honour to the statutory declaration which is (e), attachment (e). This is a declaration. Does your Honour have that?

PN35

THE DEPUTY PRESIDENT: Yes, I’ll just turn it up and just – it comes just after the – yes, just after the rules. This is a list of office holders and officers, yes.

PN36

MR DOWD: No, your Honour - - -

PN37

THE DEPUTY PRESIDENT: No.

PN38

MR DOWD: - - - this is the second to last page, headed “Statutory Declaration”, behind a blank – well, almost a blank (indistinct) did I say (e), I can’t read my own writing. Attachment (f).

PN39

THE DEPUTY PRESIDENT: (f) yes okay. Sorry. So (e) is the list of officers and office holders and (e) is the – sorry, (f) is the statutory declaration. Yes, I’ve got that.

PN40

MR DOWD: And the only thing I wanted to take your Honour to there is that 19(1)(c) requires that the association applying for registration is an association which has members which have (indistinct) throughout the six months before the application employed an average of at least 50 employees. Mr Grimmer, who is the declarant, is also the principal of (indistinct) College, he tells us and he (indistinct) the fact of his own knowledge that that college has on average at least 50 employees throughout the last six months. That meets that requirement, which your Honour might have noticed from the list of members, some college names that might have rung bells with your Honour, for instance St Peter’s College, which is the parallel college, I can tell your Honour, to King’s Sydney (indistinct) which is a similar size college.

PN41

THE DEPUTY PRESIDENT: A lot of luminaries of South Australian society have been produced I think by those schools. Well not just South Australian society, Australian society.

PN42

MR DOWD: That is so but it’s the size that I’m referring to - - -

PN43

THE DEPUTY PRESIDENT: Yes.

PN44

MR DOWD: - - - that one can almost take judicial notice from (indistinct) well and Walford is a very large girls’ college, having about 700 students and many employees, Seymour is bigger, Wilderness is a (indistinct) smaller so - - -

PN45

THE DEPUTY PRESIDENT: Okay.

PN46

MR DOWD: I just wanted to take your Honour there and say that requirement has been met.

PN47

THE DEPUTY PRESIDENT: Yes.

PN48

MR DOWD: With the greatest of respect, I don’t intend to take your Honour through all of the documents (indistinct) in section 19 of the Act. If I may shortcut it this way, truncate it this way, it’s our respectful submission that the requirements of section 19 have also been met and for both reasons we commend this application to your Honour. Now if your Honour has any questions of me, I’ve said what I need to say. Perhaps I can assist you if you have questions of me?

PN49

THE DEPUTY PRESIDENT: Just one question really by way of background. The submission is that the attachment A indicates that the association was actually formed, I think in 1974 it was - - -

PN50

MR DOWD: (indistinct) yes.

PN51

THE DEPUTY PRESIDENT: It’s currently a transitionally registered organisation under the federal Act. I assume that from 1974 or thereabouts, it was registered as a state registered organisation in South Australia? Was that the case?

PN52

MR DOWD: That is absolutely the case.

PN53

THE DEPUTY PRESIDENT: Yes.

PN54

MR DOWD: If your Honour will just give me a moment and I can provide just a little more information on that. The wonder of the arch lever file is that when you want to turn over odd documents (indistinct) doesn’t seem to want to work with you in that regard. It had been a registered association in a former name from the seventies and I’m now looking at a certificate from Industrial Registrar, John Correll, the industrial registrar of the Industrial Relations Commission of South Australia, dated 7/11/2000. At that stage, it recorded a change of name to its current name from the South Australian Independent Schools Board Inc. So your Honour’s quite right, it goes back to the seventies and has remained registered at all times as a state organisation. It became a transitionally registered state organisation (indistinct) by virtue of section 10 of the Workplace Relations Act 1996. It subsequently automatically became a transitionally recognised association under item 627 of schedule 22 of the Fair Work Transitional Provisions and Consequential Amendments Act 2009. Does that assist your Honour?

PN55

THE DEPUTY PRESIDENT: Yes, thank you. Mr Dowd, I’m satisfied with the submission that you’ve made. One issue is the applicant’s desire in terms of an operative date of registration. Do you have a preference in that regard?

PN56

MR DOWD: Would your Honour excuse me for a moment, I have people behind me, my instructor - - -

PN57

THE DEPUTY PRESIDENT: Yes.

PN58

MR DOWD: - - - behind me. I will be a matter of seconds.

PN59

THE DEPUTY PRESIDENT: Yes. Could I just make this point, when – and I’ve done in the last month or so a couple of registration decisions and I might say in circumstances where there are objections and so on, so rather more complicated, what I’m required to do administratively is to give the registry, it’s now called the regulation compliance branch, seven days to carry out the administrative tasks when a registration decision is issued. So whatever date of operation is chosen, it would – whenever I get a decision out in a formal sense, I would need to set the operative date at least seven days after the date of the decision.

PN60

MR DOWD: Yes.

PN61

THE DEPUTY PRESIDENT: But if there is a preference for – sometimes there is because of financial years or election cycles and so on, then obviously I’d take that in to account and try and comply if I can.

PN62

MR DOWD: If your Honour would just excuse me for a moment, I’ll leave the bar table and take some instruction.

PN63

THE DEPUTY PRESIDENT: Sure. Sure.

PN64

MR DOWD: I’m back your Honour. We’re very easy to deal with fortunately, we don’t have any pressing need of the nature of an election cycle or any financial commitments, so as soon as reasonably practicable to suit your Honour’s convenience and the regulation authority.

PN65

THE DEPUTY PRESIDENT: Okay. So I think then the practical position would be when I can get a decision out, and we do need a formal decision that goes through and records compliance with the Act and so on, in the way that you’ve done, and I’m greatly assisted by your submission.

PN66

MR DOWD: We understand the need to be formal.

PN67

THE DEPUTY PRESIDENT: Yes.

PN68

MR DOWD: (indistinct)

PN69

THE DEPUTY PRESIDENT: Then the operative date would be seven days after the date of that decision. I don’t see any difficulty in terms of the regulation compliance branch needing to do further work. This is not a case where, I think the rules need to be checked again or a case where, as is sometimes the case, I need to exercise powers under section 25 to grant any further amendments. So it’s a relatively straightforward matter I think, and I should be able to do that in the near future. Did you want to say anything more then? If not, I might just summarise just for the record what needs to be done then?

PN70

MR DOWD: My sense is the tide is flowing my way, so I shall remain silent, sir.

PN71

THE DEPUTY PRESIDENT: Okay, thank you. All right. I just say in summary that this is an application for registration of the Association of Independent Schools of South Australia. The application was lodged on 4/2/2014, gazetted on 17/4/2014. No objections were lodged to the application for registration. I’ve received the report, as I said, from the regulation compliance branch, which goes through each of the rules and indicates compliance with the provisions of the Fair Work Registered Organisations Act 2009. I’m satisfied that the association is a federally registrable employer association in terms of section 18(a). I’m also satisfied that the association complies with the criteria for registration as set out in section 19(1) of the RO Act. That being the case, I will register the association. I will issue a formal decision which sets out all of those conclusions for the record, as soon as I can. The operative date therefore, of the registration, will be set out in that decision but it will be some seven days after the date of that decision. I will seek to get that decision out as soon as I can. Unless there’s anything else, we’re adjourned and I will issue the decision, as I say, as quickly as I can.

PN72

MR DOWD: We’re indebted to your Honour.

PN73

THE DEPUTY PRESIDENT: Thank you.

<ADJOURNED INDEFINITELY [10.43AM]