Association of Consulting Architects - Australia

[2016] FWCD 545

[2016] FWCD 545

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Association of Consulting Architects - Australia
(R2015/282)
MR ENRIGHT	MELBOURNE, 29 FEBRUARY 2016
Alteration of other rules of organisation.

[1]        On 15 December 2015 the Association of Consulting Architects - Australia (the

organisation) lodged with the Fair Work Commission a notice and declaration setting out

particulars of alterations to its rules. Further information about the process used to alter the

rules was lodged on 18 and 21 January 2016, following contact by staff of the Commission.

[2]        The particulars set out alterations to Rule 36. The alterations clarify what will happen

if insufficient nominations are received in an election.

[3]        One matter arises for consideration. Rule 46 of the organisation’s rules provides that

the rules may be altered at a general meeting. Rule 23 provides, amongst other things, that

notice of the Annual General Meeting must be given by the Secretary and that it must be

given at least 14 days prior to the meeting. Rule 46 requires the notice to both clearly indicate

that part of the business of the meeting will be rule alterations and to set out the text or

substance of the proposed amendments.

[4]        The present alterations were transacted at the 2016 Annual General Meeting. The

notice was given by the organisation’s Treasurer. The agenda set out in the notice specified

that rule alterations were one of the items of business to be considered. Full particulars of the

alterations were provided and the effect of the changes was explained. The period of notice

exceeded the minimum required to be given.

[5]        The rules of the organisation associated with its rule altering procedure have not been

strictly complied with in one respect. The question of whether the alterations have been made

1

under the rules of the organisation therefore arises.

[6]        As discussed in Master Builders' Construction and Housing Association of the

2

Australian Capital Territory the relevant question to be asked is whether it is intended that

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noncompliance would result in invalidity. Drawing from Project Blue Sky and the application

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of its principles to the rules of an Association in Re: Australian Principles Federation , the

issue is not whether an instance of non-compliance has occurred (and as an inevitable

consequence the decision to alter the rules is invalidated). The issue is whether an act which

does not comply strictly with the rules has no effect. To determine this, regard must be had to

the language, scope and object of the relevant provisions.
[2016] FWCD 545

[7]        Applying this reasoning to the facts before me, the object of rule 46 is that rules must

be altered at a meeting and that all members must receive proper notice of the meeting,

including full details of what the alterations are. That object was fulfilled in this instance. In

my view, the fact that notice was given by the organisation’s Treasurer rather than its

Secretary is procedural and does not invalidate the meeting at which the rules were altered. I

note in this regard that there is nothing before me to suggest that any member of the

organisation took issue with the fact that the notice had in this instance been given by the

Treasurer. Nor am I aware of evidence of a member failing to act on the notice because it was

not given by the Secretary.

[8]        As a result I am satisfied, on the information contained in the notice, that the

alterations have been made under the rules of the organisation.

[9]        In my opinion, the alterations comply with and are not contrary to the Fair Work

(Registered Organisations) Act 2009, 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 Fair Work (Registered Organisations) Act 2009.

DELEGATE OF THE GENERAL MANAGER

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1

See subsection 159(1)(c) of the Fair Work (Registered Organisations) Act 2009

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[2013] FWCD 3600.

3

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28.

4

Appeal by the Australian Education Union against the decision of Vice-President Ross of 27 January 2006; Lawler VP,

Kaufman SDP, Smith C; 26 September 2006; PR973525.