REGISTERED ORGANISATIONS – amalgamation – Transitionally Recognised Association – Sch.1, Cl.6(2) Fair Work (Registered Organisations) Act 2009 – applicant sought extension of its transitional recognition to fully rationalise its internal affairs with those of its federal counterpart – submitted it had made progress and extension necessary to complete the process – amalgamation of applicant and Food Preservers Union of Western Australia Union of Workers (FPU) approved by the Western Australian Industrial Relations Commission on 14 December 2016 (WAIRC decision) pursuant to the Industrial Relations Act 1979 (WA) (the WA IR Act) – applicant submitted if extension not approved, it’s members and members of FPU would be substantially disadvantaged – National Union of Workers (NUW) asserted application without jurisdiction because applicant is a new organisation as a result of merger with FPU and therefore had never been transitionally registered pursuant to cl.2, schedule 10 of the Workplace Relations Act 1996 (Cth) or transitionally recognised under Schedule 1, Fair Work (Registered Organisations) Act 2009 (FWRO Act) – applicant submitted no reason why a written instrument recording the granting of a transitional recognition under the FWRO Act cannot pass between organisations when an amalgamation occurs in accordance with the WA IR Act – contended application to extend transitional recognition was the continuation of the initial grant of recognition – preservation of pre-existing transitional recognition relies on provisions of s.72 of the WA IR Act in context of constitutional limitations on state legislation – applicant submitted s.78B Judiciary Act 1903 (Cth) limited Commission’s ability to consider those issues – Commission held s.72 of the WA IR Act and the WAIRC decision establish the applicant was a new organisation and pre-14 December 2016 applicant and former FPU ceased to exist – applicant had not achieved transitional recognition in its own right post-14 December 2016 – Smith & Others v Trolloppe Silverwood applied – Commission found it was not prevented from considering standing of state-based legislation in context of constitutional limitations – held transitional recognition was a right to participate in the legislative scheme established by FW Act and cannot be regarded as a property, duty or obligation – issue whether s.72 of the WAIR Act can prescribe pre-14 December 2016 rights are preserved and conferred on new applicant and whether constitutionally valid – if transitional recognition applied to post-14 December 2016 applicant, recognition given without consideration of preconditions for recognition under Sch.1 FWRO Act – inherently inconsistent with provisions of Sch.1 FWRO Act – applicant not a transitionally recognised association at time of application – application dismissed. Australian Workers’ Union, West Australian Branch, Industrial Union of Workers
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