Association of Professional Engineers, Scientists and Managers, Australia, the

[2013] FWCD 6113

[2013] FWCD 6113

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

The Association of Professional Engineers, Scientists and Managers,

Australia

(R2013/370)

MR ENRIGHT	MELBOURNE, 6 SEPTEMBER 2013
Alteration of other rules of organisation.

[1] On 22 August 2013, The Association of Professional Engineers, Scientists and Managers, Australia (‘the Association’) lodged with the Fair Work Commission (‘the Commission’) a notice and declaration setting out particulars of alterations to the rules of the Association.

[2] The particulars set out alterations to the following rules of the Association:- alterations to rules 4–18, 20–29, 32–41 in Part 1; alterations to rules 1–24 in Part 2; alterations to Appendices A, B and C; the insertion of new rules 6A, 6B and 33A in Part 1; the insertion of Appendices D, E, F, G, H, I, J, K, L, M and O; the deletion of Part 4, Part 5 and Part 6; and the deletion of the Supplementary Rules - New South Wales Branch, Victorian Branch, Queensland Branch, South Australia Branch, Western Australia Branch, Tasmania Branch, Northern Territory Branch, Australian Capital Territory Branch, Local Government Engineers Association of NSW Division, Telstra and Australia Post Senior Managers Division, ABC Senior Executives Division, Architects Division, Pharmacists Division, Transport Division, Collieries’ Staff Division, Managers and Professionals Division, and Australian Government Division.

[3] On 9 July 2013, the Association lodged a preliminary submission to the Delegate of the Commission which provided context for the proposed alterations for the assistance of the Delegate. On the 22 August 2013, the Association lodged additional material in support of its application, including a submission by the National Secretary dealing with, among other things, the truncation of the offices of the Local Government Engineers Association of NSW Division (LGEA NSW Division), and temporary concurrent membership of members of certain Divisions in other Divisions based on their professional identity. On the 2 September 2013 the Association lodged further supporting material regarding the issue of temporary concurrent membership.

[2013] FWCD 6113

[4] The alterations, for the most part, provide for the restructure of the Association from a hybrid of geographically-based branches and Divisions to a divisional structure based on professional identity. These changes result in the dissolution of the State and Territory Branches and the creation of profession based Divisions in their place. The alterations also dissolve the Australian Government Division and created two new professional Divisions: the Professional Scientists Division and the Professional Engineers Division. The new and other existing Divisions are defined under the new alterations as ‘Branches’ within the meaning of the Fair Work (Registered Organisations) Act 2009 (‘the RO Act’); while the existing State and Territory Branches are re-classified as Sub-Divisions and Regions under the new structure.

[5] The alterations also make provision for consequential changes arising from the restructure. Relevant changes are discussed below.

Truncation of terms of office

[6] One consequential change of the restructure of the Association is that the terms of office of the Branch Committee members of the Local Government Engineers Association of NSW Division (LGEA NSW Division) have been truncated. The terms of these offices are due to end, under rule 14.1.9 of Part 2 of the rules, at the conclusion of the Annual General Meeting (to be held each year on a day between the first day of October and the thirtieth day of November as per rule 10, Part 2 of the Division Rules). The LGEA NSW Division Committee members elected in the 2012/13 election will take office in October or November 2013 and would normally hold office until October or November in 2014. Under new Rule 14.1.11 of Part 2, all Division Committee members elected in the 2013/14 election, including the LGEA NSW Division Committee members, will take office on the first day on February 2014. Therefore the term of office of the LGEA NSW Division Committee members will be truncated.

[7] As part of its application to alter its rules, the National Secretary of the Association lodged letters with the Commission from nine of the eleven officers of the LGEA NSW Division Committee, including the President, Vice-President, Honorary Treasurer, Secretary and five Committee Members. These officers stated that they understood the Association was altering its rules and consented to the truncation of their offices. A declaration from the National Secretary of the Association stated that attempts to contact the two remaining Committee members, who were on leave at the time of the application, were unsuccessful.

[8] The National Secretary further stated that the truncation of the terms of office is not ‘oppressive, unreasonable or unjust’ within the meaning of section 142(1)(c) of the Act as the changes represented a simple alignment with the other governing structures of the Association, were of benefit to members as they provide for the efficient management of the organisation and were being introduced at the request of the LGEA NSW Division.

[2013] FWCD 6113

General Principles

[9] In considering the application, I refer to previous decisions which articulate the following principles pertaining to the abolition of branches and truncation of offices:

	Provided it complies with the requirements of the Act, the regulations and its rules, an organisation has the right to mould its internal structures as it sees fit [Imlach v Daley [1985] FCA 13; (1983) 7 FCR 457].
	An elected office may be abolished during the term of an incumbent provided such abolition is effected in accordance with the rules and is bona fide [majority in Saint v
Australian Postal and Telecommunications Union and Others (1976) 30 FLR 393].
	Alterations that seek to abolish an office during its term or a branch must not have an oppressive, unreasonable or unjust effect on members or applicants for membership (in the plural) [Roughan v Australasian Meat Industry Employees’ Union (1992) 36 FCR 536].

[10] I also refer to the decision Health Services Union [2010] FWAD 3897, in which Delegate Nassios stated that it has been the practice of this office to seek from officers, whose term of office are abolished mid-term, declarations as to whether they understand the effect of the alterations and whether they support the alterations. I refer particularly to Delegate Nassios’ statement that declarations play a key role in determining whether the truncation of a term is bona fide and whether or not it may be oppressive, unreasonable or unjust under s142(1)(c) of the RO Act.

[11] It is my opinion that the transition of the Association to a professionally-based structure is a bona fide exercise to promote the interests and objects of the organisation. I accept that the truncation of the terms of the LGEA NSW Division Committee members’ offices is a necessary consequence of those changes. I also accept that the truncation of these offices does not have an oppressive, unreasonable or unjust effect on members or applicants for membership. The purpose of the truncation is to align the members of the Division with other governing structures of the organisation, as opposed to disenfranchising those members, or discriminating against them in some other way.

[12]      I note that the Association lodged with the Commission declarations from nine out of

a possible eleven Committee of Management members of the LGEA NSW Division. The
vast majority of the affected officers confirm in their declarations that they were aware of the
alteration of the rules of the Association, the effect of truncating the term of their office and
that they consent to those changes. I do not regard it as fatal to the application that two of the
affected Committee members have not made a declaration.

[13] It is my opinion therefore, that the truncation of the terms of the office of the LGEA (NSW Division) Committee members has been effected in accordance with the rules of the organisation, is bona fide and does not have an oppressive, unreasonable or unjust effect on members or applicants for membership within the meaning of s142(1)(c) of the RO Act.

Dual representation of members

[14] A further change is the dual representation of members of the following Divisions: the Transport Division, the Telstra and Australia Post Senior Managers Division and the ABC Senior Executives Division. The alterations provide that the members of these Divisions elect [2013] FWCD 6113

their own Division Committees but their voice on the National Assembly is through their professional identity. The submission in support of the proposed alterations described these Divisions as ‘moribund’ in that none have a functioning Division Committee of Management. The members of these Divisions in many cases do not have any representation on the National Assembly. The Association contends that dual representation of members in another Division which represents their professional identify would provide those members with the opportunity to participate in the affairs of the Association.

[15] The Transport Division was established in 1997 following an amalgamation between the Association and the Australian Railway Professional Officers Association (ARPOA). In the preliminary submission to the Delegate of the Commission, the Transport Division is described as struggling to function as a viable Division. The reasons for this are described as many and varied. In summary, the Division’s membership has fragmented as sectors of the industry have become privatised. Since 2007, the Division has not functioned in accordance with the Rules and the positions of Executive Officers have not been filled since 2009. Members of this Division do not have a representative on National Assembly and have had infrequent national representation since 2007. Under Federal Rule 6.3.3 of Part 1, the Division shall not be dissolved unless the decision taken by the National Assembly is ratified by a plebiscite of financial members of the Division. However, the Association has expressed its concerns about dissolving the Division until its members have had the opportunity to participate in the affairs of the Association through different mechanisms.

[16] As an interim measure, and in order to facilitate movement of the Transport Division members to Divisions based on professional identity, the alterations retain the Division whilst concurrently assigning members to the Professional Engineers, Professional Scientists or the Managers and Professionals Division, whichever appropriate. Direct National Assembly representation for Transport Division members is abolished and representation is to be through their relevant Professional Division. Further, the Association introduced Federal Rule 6B of Part 1 which provides that in the event of the dissolution of the Transport Division, a National Group will be constituted in its place.

[17] Both the Telstra and Australia Post Senior Managers Division and the ABC Senior Executives Division are likewise described by the Association in its submission as ‘moribund’. The Telstra Australia Post Senior Managers Division Committee of Management has not functioned since 2005 due to insufficient nominations for offices. Further, as of 5 July 2013, the Association submitted there were only 10 members of this Division. Members of this Division do not have a representative on National Assembly and have had infrequent national representation since 2007. The ABC Senior Executives Division is described in the submission dated 22 August 2013 as not having had a functioning Committee of Management since 1995. In the case of both these Divisions, Rule 6.3.6 of Part 1 could be relied on to effect dissolution of these Divisions. This rule provides for the dissolution of Divisions by the National Assembly if there are less than 20 members in the Division, or if in two consecutive elections no members have nominated for the offices of President, Secretary and Vice- President. However the Association has submitted that, as with the Transport Division, it wishes to provide the opportunity for members to participate in the affairs of the organisation through the Divisions to which they would be allocated in the event of the dissolution of the two ‘moribund’ Divisions.

[2013] FWCD 6113

Relevant principles and provisions of the RO Act

[18] Section 5(3) of the RO Act sets out the standards this Act:

(a)	ensure that employer and employee organisations registered under this Act are representative of and accountable to their members, and are able to operate effectively;
(b)	encourage members to participate in the affairs of organisations to which they belong; and
(c)	encourage the efficient management of organisations and high standards of accountability of organisations to their members; and
(d)	provide for the democratic function and control of organisations....

[19] Further, section 141 of the RO Act mandates that the rules of an organisation must

provide, among other things, for the control of committees of the organisation and its
branches respectively by the members of the organisation and branches; while section 142
prohibits the imposition on members or applicants for membership conditions that, having

regards to Parliament’s intention in creating the Act and the objects of the RO Act and the

Fair Work Act 2009, are ‘oppressive, unreasonable and unjust’.

[20] The Association has submitted that the dual representation arrangement enhances the democratic participation of these Divisions by providing their members with a voice at both the divisional and national levels. The Association also highlighted the inclusion of a ‘sunset provision’ in Federal Rule 8.10 of Part 1 which provides that the dual representation arrangement will cease to apply either as a consequence of the dissolution of the Divisions in accordance with the amended rules or the scheduled election for the National Assembly in 2016, whichever comes first.

[21] It is evident that the Divisions identified above do not have functioning Committees of Management, and in some cases have not had them for a considerable period of time. Members of two of these Divisions do not have a voice on the national decision-making body of the association. In practice these members lack effective representation and participation in the affairs of the Association. This, in my view, is contrary to the principles of the RO Act, in particular, the provision for the democratic functioning and control of the organisation (section 5(3)(d)). Providing for concurrent membership of two Divisions seeks to redress conditions that are potentially contrary to the objects of the RO Act. Moreover, the arrangement of concurrent membership is limited by the ‘sunset provision’ in Federal Rule 8.10 of Part 1of the rules, which stipulates that these are transitional arrangements that will cease to apply from 2017. As such, it is my view that the transitional arrangement of concurrent membership of members of the Transport, Telstra and Australian Post Senior Managers and ABC Senior Executives Division with other Divisions is sound and in accordance with the principles outlined above in paragraph [9]. Not only will this facilitate participation by members of the Association who have been effectively disenfranchised, but the provisions are also consistent with the objects of the Act; namely the efficient management of the organisation, effective operation, high standards of accountability and democratic function and control.

[22] On the information contained in the notice and in the related declarations and

submissions, I am satisfied the alterations have been made under the rules of the organisation.
[2013] FWCD 6113

[23] 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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