Australasian Convenience and Petroleum Marketers Association

[2014] FWCD 673

[2014] FWCD 673

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

Australasian Convenience and Petroleum Marketers Association

(R2013/32)

MR ENRIGHT	MELBOURNE, 4 FEBRUARY 2014
Alteration of other rules of organisation.

[1] On 4 June 2013, the Australasian Convenience and Petroleum Marketers Association

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

[2] The particulars provide for the amendment of existing rules 2, 5, 17 and 63 and the insertion of new rules 47H, 107A, 107B, 107C and 107D into the rules of the organisation. The alterations were made for the purpose of updating references to legislation and the Fair Work Commission and 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.

[3] Further information on the rule altering process was supplied to the Commission by

the organisation on 6 November 2013. The documents indicated that the organisation
intended to rectify concerns with the particulars through additional alterations.

[4] A second set of complementary alterations was received by the Commission on 6

January 2014. Further information relating to the second alterations was provided on 28
January 2014.

Notice of Meetings of the Board

[5] A question arises as to whether the rule alteration process was complied with when transacting the second set of alterations. Rule 47D of the organisation states, in part, that ‘Wherever possible, at least 10 days notice in writing shall be given of all Meetings of the Board...’ (my emphasis), this is supplemented by rule 47E(a) which requires, in the case of a telephone meeting, the ‘Board Members for the time being entitled to receive notice of the meeting of the Board of Management have received notice, which notice may be given by telephone of [sic] by any other means of communication.’ The declaration of Philip Molineux, National President, supplied with the notification indicates that less than the 10 days notice was provided. In accordance with the Act, I am required to be satisfied that the alterations have been made under the rules of the organisation.

[2014] FWCD 673

[6] Further information was supplied by the organisation stating that notice was provided by email to all members of the Board on 2 January 2014. The minutes of the Board meeting indicate that five of the six possible members were present and the sixth had provided an apology. The organisation also expressed their haste was in part due to ‘a determination to expedite proceeding in an effort to comply with the Fair Work (Registered Organisations)

Amendment Act 2012’ which I note had begun to operate the day prior to the notice being sent

and had caused the organisation’s rules to no longer comply with the Fair Work (Registered

Organisations) Act 2009 (the Act). I am satisfied that the short period of notice was partly

due to the emerging risks caused by non-compliance with the Act and that given this situation the organisation decided it was not possible to provide the 10 days notice, a state of affairs contemplated by, and consistent with, the rule altering procedure.

Required from time to time in order to comply with legislation

[7] The Board of the organisation transacted the first set of alterations under rule 165(e) which provides the Board with the power to alter the rules ‘[i]n the event that any alteration or amendment to this Constitution is required from time to time in order to comply with the Industrial Relations Act 1988’. In my opinion the rule, properly construed, encompasses an ability to alter the rules for the purpose of compliance with the current industrial relations legislation. The Fair Work (Registered Organisations) Act 2009 is a successor to the

Industrial Relations Act 1988.

[8] I am satisfied that new rules 47H, 107A, 107B, 107C and 107D, incorporating as they

do the new requirements created by the Amendment Act, are required in order to comply with
the Act.

[9] However, the amendments to existing rules 2, 5, 17 and 63, which do not implement the Amendment Act and merely make minor changes to the name of the legislation and the Commission, are not, in my opinion, required for the purposes of complying with the Act. As such I am unable to be satisfied that these alterations have been validly made under the rules of the organisation. If the organisation wishes to alter these rules in the manner contemplated by the particulars they must do so in accordance with rules 165(a) and (b).

[10] In any event, I note that the alteration to rule 5 (entitled ‘Industry’) alters a rule that is part of the description of the industry in connection with which the organisation is registered.

As such, it forms part of the organisation’s ‘eligibility rules’.[1]Once transacted in accordance

with the rules, an alteration of the eligibility rules of an organisation does not take effect until the President or a Deputy President of the Fair Work Commission consents to the alteration under section 158 of the Act.[2]Therefore, I would have no jurisdiction to deal with the alteration to rule 5 even had it been properly transacted.

[1]The definition of ‘eligibility rules’ is contained in section 6 of the Act and includes ‘the description of the industry or

[2]The General Manager of the Commission also has the ability to consent under section 158A to alter the eligibility rules of

[11] On the information contained in the notices and further information, I am satisfied the alterations, other than the alterations to rules 2, 5, 17 and 63, have been made under the rules of the organisation. As the alterations to rules 2, 5, 17 and 63 have not, in my opinion, been made under the rules of the organisation I am not able to certify them.

[2014] FWCD 673

Lodgment within 35 days after the alterations is made

[12]      Regulation 126(1) of the Fair Work (Registered Organisations) Regulations 2009

requires an alteration of the rules to be lodged within 35 days after the alteration is made or within any additional period that the General Manager may allow. The first notification was lodged with the Commission on 4 June 2013 and the second on 6 January 2014. The declarations indicate that the rules were transacted on 21 March 2013 and 6 January 2014 respectively.

[13] The delay in the first instance appears to have arisen due to a misconception of the organisation’s rule altering procedure and a desire to ensure the minutes of the original meeting were accepted by a subsequent meeting prior to lodgement. This would appear to be unnecessary for the completion of the rule altering procedure. As such the notification was filed outside of the requisite time period specified in regulation 126(1). Following discussions with the staff of the Commission, this misunderstanding did not impact on the second notification which was lodged promptly following the requisite vote.

[14] The second notification was lodged on the day that the rules were transacted. For reasons previously outlined by myself this is likely also outside the 35 day period contemplated by the regulations.[3] However, the organisation should not be frustrated in their attempt to have their rules certified by their swift lodgment.

[3][2013] FWCD 9604 at [4] - [7].

[15] Regulation 126(1) provides me with the discretion to allow any additional period for lodgement of this notification. On this occasion, I am exercising my discretion to allow an additional period of 42 days beyond the end of the 35 day period in the case of the first alterations and an additional period of 1 day, being the day prior to the 35 day period, in the case of the second alterations.

[16] In my opinion, those alterations which I am satisfied have been validly made under the rules of the organisation (notably 47H, 107A, 107B, 107C, and 107D) 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 these alterations

accordingly under subsection 159(1) of the RO Act.

DELEGATE OF THE GENERAL MANAGER

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enterprise (if any) in connection with which the organisation is, or the association is proposed to be, registered.’

an organisation in limited circumstances. The function within s 158A is not able to be delegated under section 343A.