The Ambulance Employees Association of Western Australia (‘the AEA’):

… was formed by a group of paramedics, ambulance officers, transport officers and communications centre staff employed by St John Ambulance Western Australia Limited (St John Ambulance) in around 2014. St John Ambulance is the largest employer of workers engaged in ambulance and patient transport services in Western Australia and is contracted to provide ambulance and patient transport services to the Western Australian government (Ambulance Employees Association of Western Australia v United Workers’ Union [2024] FWCFB 451, [3])

The AEA applied to be registered as an industrial organisation under the Fair Work (Registered Organisations) Act 2009 (Cth).  The application was opposed by the United Workers Union.    On 17 June 2024 the Fair Work Commission rejected the AEA’s application. The AEA appealed to a full bench of the Commission.  On 6 December the full bench, in Ambulance Employees Association of Western Australia v United Workers’ Union [2024] FWCFB 451 dismissed the appeal and confirmed the decision that the AEA was not eligible for registration.

The intention behind the Fair Work (Registered Organisations) Act 2009 (Cth) was to ‘enhance relations within workplaces between federal system employers and federal system employees’ and it would do this by requiring ‘associations of employers and employees …  to meet the standards set out in this Act in order to gain the rights and privileges accorded to associations under this Act and the Fair Work Act’ (s 5).

According to s 18C(1) an ‘enterprise association’ ‘is an association the majority of the members of which are employees performing work in the same enterprise’.  At the time of the hearing the AEA had 1079 members of which all but three worked for St John Ambulance Western Australia ([7]).  The AEA therefore met the definition of an ‘enterprise association’.   However an enterprise association cannot be registered if ‘it has a member who is not … an employee performing work in the relevant enterprise’ (s 18C(3)(1)).    The Commission, at first instance and on appeal confirmed that the AEA is an enterprise association but not one that can register under the Fair Work Act to represent the employees of that association.

Discussion

To be registered the AEA would need to ensure, presumably by a change of rules, that only employees of St John Ambulance WA are eligible to be members (see [48]).    Alternatively the AEA would have to ensure that members came from different employers and no single employer employed more than 50% (ie a majority) of its members. 

The AEA argued that this reasoning led to a number of absurd results. At [64]-[65] the Commission said:

… First, at least one consequence of the construction adopted by the Deputy President is, at first blush, surprising. An association of employees more than 50 percent but less that 100 percent of the members of which are employees performing work in the same enterprise would be unable to be registered at all. Such an association would fall within the definition of an “enterprise association” in s 18C(1) but would not be a federally registrable enterprise association by operation of s 18C(3)(a) because it has members who are not employees performing work in the relevant enterprise… It could not, as a result, be registered under s 20. It could also not be registered as an association of employees under s 19 because it is still an “enterprise association” …

On one view, that outcome could be regarded as arbitrary and perhaps unfair to some associations. It would, for example, permit an association 49 percent of the members of which are employees performing work within the same enterprise to become registered but an association with 51 percent of members performing work in the same enterprise could not be registered. However, we are ultimately unable to accept that this outcome can be described as absurd. 

To avoid what it identified as absurd results, the AEA argued that the Commission should look at the rules, not the actual membership.  The rules of the AEA allowed paramedics and associated employees from anywhere in WA to join.  According to the rules the AEA was not an enterprise association. The mere fact that, today, its actual membership was nearly 100% from St John was a mere coincidence rather than a reflection of the association’s rules and so the AEA should be registered as an industrial organisation rather than as an enterprise organisation.   At [70] the Full Bench said:

The consequences of the construction adopted by the Deputy President [at first instance and the subject of the appeal] … are insufficient to warrant acceptance of the construction of s 18C(1) for which it [the AEA] contends [that is one should refer to the rules and the potential membership, not the actual membership]. Although views might differ on whether the provisions are desirable, the consequences it refers to do not, in our opinion, rise to the level of absurdity or signal a disconformity with the purposes of the RO [Registered Organisations] Act. Those consequences do not provide a basis upon which to rewrite the definition of an enterprise association in s 18C(1). The definition refers to an association the majority of the members of which perform work in the same enterprise. That phrase can only sensibly be understood as referring to a majority of the actual membership of the association at the time its application for registration comes to be considered by the Commission.

Where there is an industry with many employers eg retail trades, it would be easy for an employee association to have a membership spread across many employers and it would be very unlikely any one employer would employ more than 50% of the association’s members.  Where however one has a very select membership base, in this case paramedics and ambulance employees, in stands to reason that in any state or territory it is likely that the majority of employees will be employed by the jurisdictional ambulance service (including St John in WA and the NT).   To be registered, an association would need to ensure all its members were from that one employer, leaving those employed by the few smaller employees with limited representation, or the association would have to expand its membership (as no doubt the United Workers Union does) to have multiple employees in multiple workplaces but thereby removing the effectiveness of a specialist union.  These results may seem absurd and contrary to the intention of the Act, but not, according to the Commission, sufficiently absurd to interpret the Act to ‘to rewrite the definition of an enterprise association in s 18C(1)’.

Conclusion

The Commission upheld the decision. Because the majority of members of the AEA worked for St John it was an enterprise association and because it was an enterprise association it could not be registered because not all of its members worked for St John.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.