Aged & Community Services Association of NSW & ACT Incorporated

[2014] FWCD 3980

[2014] FWCD 3980

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Aged & Community Services NSW & ACT
(R2013/16)
MR ENRIGHT	MELBOURNE, 17 JUNE 2014
Alteration of other rules of organisation.

[1] On 28 January 2014, the Aged & Community Services NSW & ACT (the ACS)

lodged with the Fair Work Commission (the Commission) a notice and declaration setting out
particulars of alterations to the rules of the ACS.

[2] The particulars provide for the deletion of the entire existing rules of the ACS with the exclusion of the first sentence of rule 5 and sub-rules 1.2 and 5.1 and the insertion of new rules 1 to 74 into the rules of the ACS. The particulars also provide for the deletion of Appendices B and C to, and minor amendments to the First Schedule of, the rules of the ACS.

[3] Proposed rules 67, 70, 71, 72, 73 and 74 to be inserted into the rules of the ACS were made for the purpose of complying with provisions of the Fair Work (Registered

Organisations) Amendment Act 2012 (the Amendment Act) regarding the rules of registered

organisations. In particular, the alterations provide for specified disclosures, the implementation of policies relating to expenditure and the mandatory training of officers with duties that relate to the financial management of the organisation.

[4] The alterations to the other rules set out in the notice of particulars were made as a result of a new constitution (the Constitution) that was adopted when the ACS sought, and subsequently obtained, registration under the Corporations Act 2001. Significantly, the Constitution also contains clauses (proposed rules 7 and 9) which would have the effect of altering the eligibility rules of the ACS.

[5] Regulation 126(1) of the Fair Work (Registered Organisations) Regulations 2009 (the Regulations) requires an alteration of the rules of a registered organisation to be lodged within 35 days after is made or within any additional period that the General Manager (or the Delegate of the General Manager) may allow. The alterations were made by special resolution of the ACS during its annual general meeting of 1 October 2013.

[6] Contained within the declaration of Ms Vivienne Allanson, President of the ACS, made on 24 January 2014 and lodged with the notice of particulars is a request for an extension of time to lodge the notice of particulars. The request notes that the ACS previously attempted to lodge a notice of particulars on 9 December 2013 and provides that the reason for the delay in the lodgement of the notice of particulars was due to the

[2014] FWCD 3980

administrative burden associated with the ACS becoming registered under the Corporations

Act 2001.

[7] Pursuant to regulation 126(1) of the Regulations, I will grant the ACS an additional period of time to lodge the notice of particulars on 28 January 2014.

[8] On the information contained in the notice, I am satisfied the alterations have been made under the rules of the organisation.

[9] Given the difficulties of precisely ascertaining which of the sub-rules of proposed rules 7 and 9 as set out in the Constitution entail the alteration of the eligibility rules of the ACS, I have determined not to certify those proposed rules in their entirety. Further, given that the provisions of proposed rule 7 also pertain to matters which the Act requires the rules of an organisation to make provision for and that this proposed rule is intended to replace existing rule 5 in this regard, which also makes provision for such matters, I have also determined that existing rule 5 should be retained in its entirety.

[10] I am satisfied that the proposed rules 7 and 9 are severable from the other alterations contained in the notice of particulars in light of the principles set out by the majority in Re

Food Preservers’ Union of Australia (1998) 79 ALR 138.

[11] On 16 June 2014, Ms Allanson, gave consent, under subsection 159(2) of the Fair Work (Registered Organisations) Act 2009 (the Act), for the Delegate to make various

amendments to the alterations for the purpose of correcting typographical, clerical or formal

errors. Accordingly the following corrections have been made:

 Proposed rule 1 - Defined Terms, has been renumbered as rule 1A;

 Proposed rule 5 - Income and Property of Company, has been renumbered as rule 5A;

 In the definition of “Member” in proposed rule 1.1, the reference to “clause 7” has

been omitted and replaced with a reference to “clause 5”;

 In proposed rule 5.3, the references to “clause 5.1” and “clause 5.2” have been omitted

and replaced with references to “clause 5A.1” and “clause 5A.2” respectively;

 In proposed rule 5.4, the reference to “clause 5.3” has been omitted and replaced with

a reference to “clause 5A.3”;

 In proposed rule 24.3(b), the words “(whether such a class is a class of new Members

established pursuant to clause 7.3 after the date of adoption of this Constitution or a class of Members existing on adoption of this Constitution but whose rights have been varied in accordance with clause 7.3)” have been omitted;

 In proposed rule 71.3, the words “An organisation” have been omitted and replaced

with the words “The Company”; and

 In proposed clause 3.1 of the First Schedule, the words “Workplace Relations

(Registration and Accountability of Organisations) Regulations 2003” have been omitted and replaced with the words “Fair Work (Registered Organisations) Regulations 2009”.

[12] In my opinion, the alterations comply with and are not contrary to the Act, the Amendment Act, the Fair Work Act 2009, modern awards and enterprise agreements, and are not otherwise contrary to law. I certify accordingly under subsection 159(1) of the Act on the basis set out above.

[2014] FWCD 3980

DELEGATE OF THE GENERAL MANAGER

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