Australian and International Pilots Association
[2024] FWCD 1007
•22 JANUARY 2024
| [2024] FWCD 1007 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Australian and International Pilots Association
(R2023/101)
| CHRIS ENRIGHT | MELBOURNE, 22 JANUARY 2024 |
Alteration of other rules of organisation.
On 2 October 2023 the Australian and International Pilots Association (AIPA) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules. A submission in support of the alterations was lodged on 13 December 2023.
AIPA seeks certification of the alterations under s.159 of the fair Work (Registered Organisations) Act 2009 (the Act).
The particulars set out alterations to rules 3, 3A, 5, 5B, 6, 9-13, 15-17, 19-23, 24A, 25-37, 39-49, 51A, 53-55 and 57.
The particulars delete rules 24B, 24C, 24D, 38, 56, 56A and the Heading “Part - 5 Transitional Rules”.
The particulars additionally insert new rules 28-30, 40-41, 51-60, 67 and Schedules A‑D.
As a result of the alterations, deletions and insertions, the rules have been re-numbered throughout the rulebook.
On the information contained in the notice and declaration, I am satisfied the alterations have been made under the rules of the organisation.
The alterations to some rules are minor in nature and do not change their substance or meaning. They are made to improve grammar and punctuation, correct spelling, standardise capitalisation (or otherwise), provide initialisms for frequently used words, remove gender specific language, modernise language or re-number sub-rules. These types of alterations are reflected in proposed rules 8, 15-16, 19, 21-25, 27, 43, 45, 48-50, 65-66, 68-72 and78-79.
The rest of the alterations go to the substance and meaning of the rules.
“A” Pilots
The alterations insert a definition of “A” pilots in the Definitions rule (proposed rule 5) as “a person who was employed by Australian Airlines Limited as a pilot as at 13 September 1992”. The current rules do not provide a definition of “A” Pilots. Current rule 20 reserves positions for “A” pilots on the Committee of Management (COM) to those “engaged on Qantas short-haul operations who were employed by Australian Airlines as at 13 September 1992”. Proposed rule 31 continues to reserve positions for “A” pilots, but removes the requirement to be “engaged on Qantas short-haul operations”.
An organisation has the right to mould its internal structures as it sees fit, provided it complies with the requirements of the legislation.[1] This includes to right to change how members are grouped and represented within the organisation. A relevant requirement of the Act is that rules must not impose conditions, obligations or restrictions that, having regard to, among other things, Parliament’s intentions and the objects of the Act, are oppressive, unreasonable or unjust. [2] When considering whether conditions imposed on members are oppressive, unreasonable or unjust, regard must be had to, among other things, the democratic functioning and control of the organisation.[3]
A question arises as to whether the insertion of a definition of “A” pilots and the removal of the reference to “Qantas short-haul operations” from the positions reserved for “A” pilots on the COM impose oppressive, unreasonable or unjust conditions on members, having regard to the objects of the Act.
In its submission of 13 December 2023, AIPA explains that the insertion of a definition of “A” pilots does not, in effect, alter the group of members who are captured. “A” pilots are listed by name in Schedule 1 to the Qantas Airways Limited Integration Award, an Award made in 1992 when Australian Airlines merged with Qantas Airways Limited, and this definition reflects those so listed.
AIPA also explains the current link to short-haul operations for “A” pilots’ representation on the Committee of Management (COM) was introduced to ensure a voice for Australian Airlines pilots who were new to the union in 1992. AIPA submit that over the intervening 30 years the association between “A” pilots and short haul operations has ceased to exist; most “A” pilots have been engaged on long haul aircraft, whereas in 1992 none had. The alteration ensures that all “A” pilot members are entitled to run for the positions reserved for “A” pilots on the COM.
On the basis of the material before me, I am satisfied that the group of members captured as “A” pilots has not changed. I am also satisfied that the removal of the limitation on “A” pilots eligible to run for the positions reserved for them on the COM guarantees their continued voice in the governing structures of AIPA. These alterations, in my view, support the democratic functioning of AIPA and do not impose oppressive, unreasonable or unjust conditions on members.
Flight Engineers
The alterations remove references to Flight Engineers throughout the rulebook except those in the eligibility rule. Protecting and furthering the interests of Flight Engineers are removed from the Objects (proposed rule 3), they are no longer included in the definition of the “profession” (proposed rule 5) and they no longer have guaranteed representation on the COM (proposed rule 31), nor a Vice-Presidential position (proposed rule 33).
On their face, the alterations appear to have deprived the rights and interests of the members who are Flight Engineer because protection of their interests is no longer a requirement and guaranteed opportunities for voice on the governing bodies have been removed. Thus, it would seem that the alterations are contrary to paragraph 142(1)(c) of the Act.[4]
In its submission AIPA advises that it does not have any current or potential members who are flight engineers because this occupation has ceased to exist in regular passage services. AIPA explains that the positions guaranteed to Flight Engineers have been permanently vacant since 2009. AIPA submits that the alterations reflect current flight operation practices.
An examination of the declarations of AIPA’s elections from 2009 onwards confirms that the positions guaranteed to Fight Engineers have been vacant since that time.[5] On the basis of the material before me, I am satisfied that the removal of references to Flight Engineers throughout the rulebook does not impose oppressive, unreasonable or unjust conditions on members, or applicants for membership, have regard to the objects of the Act.
Changes to the governing structures
Currently, AIPA’s rules do not provide for formal groupings of members, other than “A” pilots and Flight Engineers. In the proposed structure, members are allocated to Work Groups based on their place of employment (the definition in proposed rule 5 and proposed rules 28 and 29). If there are 50 or more members employed under the same employer, a Work Group is established for that employer. A combined Work Group (Small Airlines Work Group) is reserved for members who do not have a specific Work Group.
The proposed rules establish an Employer Standing Committee (ESC) for each Work Group and an ESC for each employer covered in the Small Airlines Work Group (proposed rule 30). The ESCs are made up of the members of the COM in the relevant Work Group plus other members nominated by members of the relevant Work Group. The ESCs are “organising points” for members engaged by the relevant employer, are advisory bodies to the Committee of Management (COM) and are subject to the direction of the COM (proposed sub-rule 30(f)).
Currently there is an entitlement for 40 members to be elected to AIPA’s COM (current rule 38(a)). The proposed rules still provide for a committee of 40 members (subject to the transitional provisions, see discussion below). However, 30 members are elected by financial members in Work Groups and ten by all financial members (proposed rule 31(e)).
The current rules and proposed rules provide for the collegiate election of officers from the COM (current rule 21 and proposed rule 33). The proposed rules name this group of officers as “Executive members”. The proposed rules do not establish the Executive as a decision ‑making body with specific powers and duties. The term “Executive” is merely a collective noun used to describe the group of officers which are elected by and from the COM, namely the President, the Vice-Presidents, the Secretary, the Assistant Secretary and the Treasurer.
The current rules provide for six Vice-Presidents, three of which are reserved for Flight Engineer, “A” pilot and Group Airlines (current rule 21). The proposed rules require that there be one Vice-President from every Work Group that has at least 15 per cent of members, one Vice-President representing all the other Work Groups, and one “A” pilot Vice-President. This means that the number of Vice-Presidents can change at each election, depending on the number of Work Groups with at least 15 per cent of the members.
As stated above, AIPA can structure itself as it sees fit, as long it complies with legislative requirements. AIPA were requested to make a submission regarding the proposed structure and, in particular, whether the changes impose oppressive, unreasonable or unjust conditions on members, having regard to the objects of the Act.
In its submission, AIPA advises that, although it has never occurred, under the current rules it is possible for one group of members to dominate the COM. This risk is particularly highlighted as the voting system for the election of the COM is currently first-past-post. AIPA submits that the proposed structure ensures that all members will have the opportunity for representation on the COM and at Vice-Presidential level. They submit that this opportunity is cemented by changing the voting system for the election of COM members to optional preferential system (if just one candidate to be elected) and quota preferential system (if more than one candidate to be elected).
In my view, rules which provide the opportunity for all members to be represented on governing bodies enhance the democratic functioning of organisation and the participation of members in the affairs of their organisations. As Gray J observed in Lawley[6]:
“The question whether the rules of an organisation contravene s 140(1)(c) because of an imbalance in the representation of sections of its members on a governing body is one of degree…[organisations] are permitted to take into account factors other than equality of representation, especially when there may be a perceived need to ensure that the voices of members belonging to smaller sections may be heard.”[7]
The changes to the composition of AIPA’s COM and the Vice-Presidential positions provide the opportunity for all members to have a voice on its governing structures, particularly those belonging to smaller work groups. At the same time, the majority of members in the larger Work Groups still have an appropriate level of representation which is in proportion to their size. In my view, the alterations do not offend against paragraph 142(1)(c); quite the opposite, they appear to enhance important standards of the Act, those being the democratic functioning of AIPA and the participation of its members in its affairs.
The immediate effect of changing Vice-Presidential positions
As noted above, currently the rules provide for six Vice-Presidents, however only five positions are filled as there are no members who are Flight Engineers. Also, as noted above, the alterations introduce Work Group representation at Vice-Presidential level. The question arises as to when the changes to the Vice-Presidential positions take effect.
If I certify the proposed alterations, they take effect on the day of certification – see subsection 159(3) of the Act.[8]
Subsection 159(3) of the Act was considered by a Full Bench of the Commission in the CEPU.[9] The Full Bench observed:
“Section 159(3) provides that a rules alteration takes effect on the day of certification. hHowever that only means that a rules alteration takes effect according to its terms on that day, not necessarily that it has an operational effect from that day.”[10]
There is a rebuttable presumption that a rule alteration cannot apply retrospectively. In Higgins[11] the Full Court of the former Commonwealth Industrial Court held that there was a “necessary implication” that an existing officer continues to hold office until the expiration of their term of office fixed by the rules that were in force at the time of their election.
This presumption can be rebutted, as the Full Court observed in Higgins, “[t]he question must in the ultimate analysis be one of intention.”[12] As stated by Joske J stated in Beeson[13],:
“In any event, in my view there is a prima facie principle of construction that unless it appears expressly or by implication in rules as amended that they are intended in their amended form to apply to past matters or events, including matters commenced before but not completed at the time of the amendment, the amendments do not apply to the past or uncompleted matters.”[14]
There is nothing in the alterations before me to suggest that the changes to the Work Groups represented by the Vice-Presidents and the number of Vice-Presidents have retrospective effect. In line with principles espoused in Higgins, in my view the incumbent Vice-Presidents continue to hold office until their current term ends in 2024.The new Work Group representation requirements for Vice-Presidents will take effect at the 2024 elections and the number of Vice-Presidents will depend on the number of members in each Work Group at that time.
Changes to election rules
General Principles
The proposed rules establish general principles for the election of the COM members and Executive members (proposed rule 51). The general principles establish that the definitions of key terms in the Australian Electoral Commission’s model rules apply to these election rules. They also set out provisions about the appointment of a Returning Officer and absent voting.
Electronic voting systems
Section 144 of the Act provides that where an election is by direct voting system, the rules must provide that the ballot be by secret postal ballot.[15] However, subsection (2) enables organisations to apply for an exemption from having rules that provide for a postal ballot in direct voting system elections.
The proposed general principles explicitly state that the election of the COM is by secret postal ballots, satisfying the requirements of subsection 144(1) the Act (proposed sub-rule 51(b)). However, the general principles also provide that nothing in the rules is taken to prevent or limit the use of electronic voting systems where the Returning Officer determines that it is practical to do so (proposed rule 51(e)).
AIPA does not currently hold an exemption from having rules that provide for a secret postal ballot in direct voting system elections. Consequently, proposed sub-rule 51(e) cannot be interpreted has having current application to direct voting system elections, notably the election of members of the COM. The extent of its application would be to collegiate elections, that is for the election of the Executive members (proposed rule 61).
Rules for the election of the Committee of Management
The alterations delete the current rule (rule 38) which sets out the process for electing the COM and inserts proposed rules 51 – 59 and proposed schedules B and D) which:
set out a method for calculating the number of Representatives for each Work Group;
establish new timelines, including setting the close of roll of voters on Election Census Date (which is the first Tuesday on or after 1 May in the election year, as defined in proposed rule 5);
require nominees to nominate for both Work Group Representative and General Representative;
enable nominations to be withdrawn up to seven days after the close of nominations;
require ballots for Work Group Representatives to be counted before ballots for General Representatives;
require a notice identifying the successful candidates to be provided to voters if a ballot is not required for a Work Group;
change the method of counting the ballot from first-past-the-post to preferential systems (optional preferential if only one candidate to be elected and quota preferential if more than one candidate to be elected, the procedures for which are detailed in proposed Schedule B);
provide for the declaration of the successful candidates no later than 16 weeks after the Election Census Date;
provide for the elected officers to take office at the commencement of the first COM meeting in November of the year of the election, or if this is not possible on the 211th day after the Election Census Date; and
provide an example timeline for the 2024 election.
Rules for the election of Executive
The current rule (rule 39) regarding the election of officers is retitled as “Nomination and Election of Executive Members” and renumbered as rule 61. The rule has been altered to:
establish new timelines for the conduct of the election;
provide that the college for the election is made up of COM of members who have been declared elected but not yet taken office and the continuing members of the COM;
change the qualifications and the college for the Vice-Presidential positions so that they are from the relevant Work Group, or an “A” pilot in the case of the “A” Pilot Vice-President; and
change the system for counting the ballots from preferential to first-past-the post (the procedures for which are detailed in proposed Scheduled B).
Insufficient nominations
Subsection 143(1)(a) of the Act requires the rules of organisations to provide for the election of the holder of each office.[16] Proposed rule in sub-rule 55(b)(iii) provides that if there are insufficient nominations for Work Group Representatives on the COM, any unfilled positions will be filled in accordance with the procedure for filling casual vacancies. There is a similar provision in the transitional rule for unfilled offices on the COM (proposed Schedule C, sub-rule 2(a)). The proposed casual vacancy rule (proposed rule 60) requires an election if the unexpired period of the term exceeds one-quarter of the term of office. In summary, applying the casual vacancy rule to the instance of a position not filled at an election requires another election. A member cannot be appointed to the office. In my view paragraph 143(1)(a) of the Act is satisfied.
Conclusion: election rules
Section 143 of the Act sets out a number of matters relating to elections for office that must be in the rules of registered organisations.[17] I am satisfied that the proposed rules regarding the election of Committee of Management members and the Executive meet these requirements.
Committee of Management: term of office
Currently the term of office for COM members is three years with half (20) elected in one year, the other half elected the following year (current rule 40). The most recent elections were conducted in 2021 and 2022.[18] Consequently, under the current rules, the term of office for half of the current COM members will expire in 2024 and the other half in 2025.
The proposed rules change the term for COM members from three to four years (proposed rules 31 and 63). As noted above, there is a presumption against retrospective effect of rule alterations. The former Commonwealth Industrial Court in both Higgins and Beeson considered rules which increased the length of an office’s term, and in both cases the change to the term of office could apply only to elections held after the alterations had been certified.
However, as noted above, in both cases it was also acknowledged that the presumption against retrospectivity can be rebutted if intended. In a later matter before the Federal Court of Australia[19], Gray J stated:
“The presumption against retrospectivity may be overcome by clear words, or may be held not to apply in the absence of harsh effects or interference with vested interests or accrued rights….”[20]
There is nothing in the alterations before me which suggest that the presumption against retrospectivity is rebutted for those elected to the COM in 2021.To the contrary, the proposed transitional rule (proposed Schedule C, sub-rule 1(a)) explicitly states that the terms for those office holders expire in 2024.
In contrast, the proposed transitional rule expressly provides that those elected to the COM in 2022 will hold a four year term (proposed Schedule C, sub-rule 1(b)). It is the clear intention of AIPA that the new term applies to those COM members elected in 2022.
Further, there is nothing before me which suggests that applying the increased term to those elected in 2022 will result in harsh effects, nor interfere with vested interests. To the contrary, the alterations seek to simplify the election procedures so that half the COM is elected every second year. Subsection 145(2) of the Act expressly permits the extension of terms of office for the purposes of synchronising elections. The extension of the term of office for the COM members elected in 2022 will enable the elections to be synchronised, which accords with subsection 145(2) of the Act.
In my view, the alterations which increase the term of office for the members of the COM elected in 2022 have retrospective effect and comply with the Act.
Transitional Rule
Proposed Schedule C sets out transitional provisions for the election of the COM. As detailed above, the transitional provisions provide for half of the committee to be elected in 2024, and the other half in 2026. The proposed Schedule also sets out a random method for determining which Work Groups representatives are elected in 2024. This enables a staged transition to the new composition of the COM, which will be completed by the end of the 2026 election.
Proposed Schedule C also provides for additional COM members to be elected in 2024, for a two year term only, to ensure that each Work Group will be represented on the COM from 2024 to 2026. This may result in a COM of more than 40 members for the transitionary period only.
In my opinion the transitional provisions set out a clear process for moving to the new composition of the COM, ensuring that all members have the opportunity for voice during the transitionary period. The provisions provide for the democratic functioning and control AIPA and enables the participation of members in its affairs in the transitionary period, and, in my view, align with the standards of the Act set out in subsection 5(3).
Finance Committee
Proposed rule 40 establishes a Finance Committee (FC) as a standing committee of the organisation. The FC is comprised of the Treasurer and two members of the COM nominated by the COM.
If the FC has power in relation to the management of AIPA and determination of policy, it would be a collective body of offices[21] and the consequently the holders of the Finance Committee offices would need to be elected.[22] The rules do not provide for the election of two COM members to the FC, they are merely nominated, in other words appointed by the COM. The question arises as to whether the rules need to provide for the election of the two COM members to the FC.
Proposed sub-rule 40(c) sets out the functions of the FC, which is to have oversight of financial matters, but no decision-making nor policy making powers. Its role is advisory in nature and consequently, in my view, the rules do not need to provide for the election of the two COM members to the FC.
Discipline and Sanctions
Proposed rule 41 creates a Disciplinary Committee (DC) as a standing committee of AIPA. The proposed rules do not set out the composition or powers of the DC but instead state that these will be set out in AIPA’s policies and procedures. The policies and procedures regarding the composition and powers of the DC cannot be changed except by two-thirds majority vote of the COM. None of the proposed rules suggest that the DC is a collective body of office holders as defined in section 9 of the Act.[23]
Removal from office
Current rule 42 provides that holders of office can be removed from office if found guilty of the conduct set out in subsection 141(1)(c) of the Act[24]. Proposed rule 64(b)(i) provides that office holder can only be removed from office for these reasons if found guilty by a two ‑thirds majority vote of the COM, ensuring compliance with subsection 141(1)(c).
Suspension from office
In addition to removal from office, the COM may impose suspension from office for up to 12 months. This sanction can be imposed by the COM if the office holder has been found guilty of the conduct set out in paragraph 141(1)(c) of the Act, and also if the office holder has been found guilty of misconduct or neglect or a breach of the rules (proposed sub-rules 64(a) and (b)).
As enunciated by Fitzgerald J in Hills[25] suspension from office is distinguishable from removal of office. Removal from office occurs if the officer holder is “totally, permanently and irreversibly deprived of office”[26], whereas if an officer is suspended they continue to occupy the office but are temporarily unable to exercise the powers of that office. Therefore, it is possible to have rules which enable the suspension from office for reasons other than those set out in paragraph 141(1)(c).
When considering alterations which enable sanctions to be imposed on members (including office holders), regard must be had to paragraph 142(1)(c) of the Act.[27] That is, whether the sanctions impose conditions, obligations or restrictions on members that are oppressive, unreasonable or unjust when regard is had to the objects of the Act and Parliament’s intentions in enacting the Act. In these alterations, I need to consider whether suspension from office for misconduct or neglect or a breach of rules for up to 12 months impose oppressive, unreasonable or unjust conditions on members, having regard to the requisite matters.
Kelly J in Bowden[28] considered whether penalties imposed on members (as opposed to holders of office) for misconduct imposed oppressive conditions on members, and stated:
“The use of the apparently general term “misconduct” as descriptive of an offence for which penalties are provided is not, in my view, obnoxious…The misconduct falling within the meaning of the rule must be misconduct inconsistent with the continuance of the member as a member…”[29]
In Cameron[30], Spicer CJ, drawing from Bowen, stated:
“…I do not think the word “misconduct” is so vague in the context in which it appears as to justify a conclusion that it imposes conditions which are oppressive, unreasonable or unjust. The word, I think, contemplates misconduct as a member...”[31]
Given that authorities have concluded that misconduct is sufficiently serious to impose a sanction as fundamental as removal from membership, it is reasonable to extend this reasoning to temporary suspension from office. In my view, the word “misconduct” in the context of suspension from office contemplates misconduct as an officer holder and as such is sufficiently serious to warrant suspension from office.
Neglect or breach of the rules
There are many authorities for the principle that suspension from office for acting contrary to the rules of their organisation is not objectionable.[32] These authorities contemplate positive action, such as “committing a breach”[33], “acting contrary to the rules”[34] or “violates any branch…rule”[35]. In the alterations before me the offence includes neglect of the rules, in other words, the offence leading to suspension from office may not be a positive action in defiance of the rules, but merely an oversight.
In Hardiman[36] the Full Court of the Commonwealth Court of Conciliation and Arbitration considered a rule which provided that a failure to observe any of the rules could result in expulsion from membership. The Full Court determined that the rule was not oppressive or reasonable:
“…we regard it as fundamental to the concept of unionism, and essential to its functioning in an orderly manner, that every member of an organization should be deemed to know its rules, and be required to observe them implicitly. Believing, as we do, that the doctrine ignorantia juris non excusat should apply to the internal government of organisations, so far as concerns their registered rules, we cannot regard such an obligation as tyrannical, oppressive, or unreasonable.”[37]
This principle applies even more profoundly to office holders. To carry out their duties, it is essential for office holders to know and observe the rules of their organisation. Neglect of the rules, even if unintentional, jeopardises good governance of the organisation. In my view, temporary suspension from office for neglect of the rules is not inherently objectionable, to the contrary it provides an avenue for good governance.
Length of suspension
Suspension from office potentially denies the democratic representation of some members in their governing bodies, albeit temporarily. However, democratic principles must be weighed against the effective operation and efficient management of the organisation. Therefore, a question I must consider is whether a maximum period of 12 months suspension from office is too long such that the democratic principles of the Act are undermined, or whether 12 months suspension is appropriate for the effective operation and efficient management of AIPA.
In my view an appropriate period of suspension will vary according to the circumstances. The alterations specify an outer limit of 12 months suspension which provides the opportunity for determining an appropriate period according to the circumstances. I am satisfied that the proposed rule allows for an acceptable period of suspension from office.
Procedural fairness
A key question regarding the imposition of sanctions is whether the member against whom charges have been made has been provided with procedural fairness before a determination is made. Principles of procedural fairness also suggest that the person against whom allegations have been made is entitled to be aware of the allegations and to be heard prior to a decision being made.[38]
Proposed sub-rule 64(a)(ii) explicitly sets out steps that afford procedural fairness to an alleged offender.
However, proposed rule 64(a)(i) provides that if a disciplinary matter has been considered by the DC, action cannot be taken by the COM contrary to the terms of the recommendation by the DC. This sub-rule explicitly states that the DC must afford the alleged offender procedural fairness. However, it is unclear it what circumstances a disciplinary matter would be heard by the DC, in lieu of the COM. Notwithstanding the lack of clarity (which would likely be resolved in the procedures set down by the COM as per rule 41(b)), the rules ensure that whichever process is used, procedural fairness must be followed.
In my view proposed rules 41 and 64, which deal with discipline and sanctions against office holders do not impose oppressive, unreasonable or unjust conditions on members, having regard to the objects of the Act and Parliament’s intentions. Further, the provisions that provide for removal from office comply with the Act.
Purging the register of members
Proposed rule 67 enables the President or Secretary to remove from the Register of Members names of members who have ceased to become a member of the AIPA or are deceased. The rule does not set out a process that ensures procedural justice for living members such that they can be heard prior to being removed from the Register.
Where rules have not explicitly provided for procedural fairness, the Courts have imported such provisions.[39] As stated in Kenward:[40]
“…in imposing upon the Branch Secretary or Committee of Management the duty to ‘cancel the names’ must be read as implicitly requiring that any such member shall be given notice that the Branch Secretary or Committee of Management is proposing to consider whether his or her name shall be ‘cancelled from the register of members’; such a notice would give the member concerned the opportunity to inform the Secretary or the Committee of relevant considerations, including any mistake in the Branch records, and to advance reasons as to why his or her name should not be cancelled.”[41]
Though I think it preferable that the rule explicitly provide a living member with the opportunity of being heard prior to their name being removed from the Register, a preferable rule does not render the proposed rule contrary to the Act.[42]
Liabilities for money owed
Proposed rule 67 also provides that removal from the Register of members does not discharge the removed member from liability for arrears. I note that the proposed rule must be read subject to the Act which, at subsection 178(2), provides that arrears cease to be payable if legal proceedings have not commenced within a certain period.
Other Alterations
In addition to the alterations discussed above, the proposed rules:
· Include protecting the rights and interests of pilots on the Qantas Group as a new object (proposed rule 3);
· Remove out-dated references to foundation members (proposed rule 6);
· Update the list of life members and move the list to a Schedule (proposed Schedule A)
· Enable the COM to determine when fees are due, grant extensions of time for the payments of fees and set fees by members’ employment categories (proposed rules 11, 12 and 13);
· Enable more flexible means for periodical payment of fees (proposed rule 14);
· Change requirements establishing accounts and for the expenditure of funds (proposed rule 18);
· Require the development of policies for AIPA’s administration (proposed rule 20);
· Require that an office holder must be a member to be eligible to continue to hold office (proposed rule 31(f));
· Limit the powers and duties of members of the COM such that a member cannot bind AIPA to an industrial agreement unless expressly authorised (proposed rule 32);
· Enable the President to allocate portfolios to members of the COM (proposed rule 34);
· Require the Vice-Presidents to be the main line of communication between the relevant Work Group and the COM (proposed rule 35);
· Enable a Vice-President to act in the absence of the President (proposed rule 35);
· Require the Vice-Presidents, Secretary, Assistant Secretary and Treasurer to perform functions as determined by the President or the COM (proposed rules 35, 36, 37 and 38);
· Set out how representatives to other bodies are appointed (proposed rule 39);
· Enable hybrid meetings of the COM and general meetings of members to occur at more than one location and utilise technology to allow participation (proposed rules 42 and 47);
· Reduce the number of proxies that a member of the COM can hold from four to two (proposed rule 44);
· Enable Special General Meetings to be called by email (proposed rule 46);
· Change the casual vacancy provisions for the COM so that a vacant office is filled by election if the unexpired period of the term is more than one quarter of the term. Also change the casual vacancy provisions for Executive offices so that if the unexpired period of the term is more than 18 months an election is required (proposed rules 60 and 62);
· Enable the COM to remove members from an ESC, or fine or censure for misconduct or neglect or breach of the rules (proposed rule 64);
· Allow the distribution of assets to members to the extent permitted by law if AIPA is dissolved (proposed rule 76);
· Change the majority required for a rule to be altered (proposed rule 77); and
· Delete outdated transitional provisions (deletion of current rules 56 and 56A).
On 18 December 2023, John Pavlou, Secretary of AIPA gave consent under subsection 159(2) of the Act for me to make various amendments to the alterations for the purpose of correcting typographical, clerical or formal errors. Accordingly, the following corrections have been made:
· In proposed rule 30(e) “53(e)(iii)” has been changed to “53(d)(iii)”;
· In proposed rule 30(f) the first (iii) has been changed to (ii);
· In proposed rule 50 the word “thier” in the second line has been changed to “their”;
· In proposed rule 51(d)(ii) the word “or” has been inserted in the second line between “organisations” and “, the Organisation”;
· In proposed rule 51(d)(ii) the word “not” has been inserted in the third line after the word “person”;
· In proposed rule 53(d) the duplicated “the” in the first line has been deleted;
· In proposed rule 54(c) “)” has been inserted after “r.53”;
· In proposed rule 54(c) the “)” after the word “nomination” has been deleted;
· In proposed rule 61(b) “53(e)(iii)” has been changed to “53(d)(iii)”;
· In proposed rule 61(s) the words “after the Election Census Date” have been inserted after “182 days (26 weeks)”;
· In proposed rule 62(a)(i) rule the reference “(t)” has been changed to “(s)”;
· In proposed rule 64(b) the duplicated “that” in the first line has been deleted; and
· In proposed rule 64(c)(ii) “.;” has been change to “;”.
In my opinion, the alterations comply with and are not contrary to the Act, the Fair Work Act 2009, modern awards and enterprise agreements, are not otherwise contrary to law and were made under the rules of the organisation. I certify accordingly under subsection 159(1) of the Act.
DELEGATE OF THE GENERAL MANAGER
[1] Imlach v Daley (1985) 7 FCR 457 at 462
[2]Paragraph 142(1)(c) of the Act provides that rules:
must not impose on applicants for membership, or members, of the organisation, conditions, obligations or restrictions that, having regard to Parliament’s intention in enacting this Act (see section 5) and the objects of this Act and the Fair Work Act, are oppressive, unreasonable or unjust
[3] Subsection 5(3) of the Act sets out the following standards for registered organisations:
(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; and
(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 functioning and control of organisations; and
(e) facilitate the registration of a diverse range of employer and employee organisations
[4] For full citation see endnote 2 above.
[5] The declarations of AIPA’s elections can be viewed on the Commission’s website at Australian and International Pilots Association (AIPA) - Find a registered organisation - Fair Work Commission (fwc.gov.au)
[6] Lawley v Transport Workers’ Union of Australia (1987) 22 IR 114
[7] Ibid., at 123. For the purposes of this discussion paragrah140(1)(c) of the Conciliation and Arbitration Act 1904 as it stood in 198 is sufficiently similar to paragraph 142(1)(c) of the Act.
[8] Section 159 of the Act provides:
(1) An alteration of the rules (other than the eligibility rules) of an organisation does not take effect unless particulars of the alteration have been lodged with the FWC and the General Manager has certified that, in his or her opinion, the alteration:
(a) complies with, and is not contrary to, this Act, the Fair Work Act, modern awards and enterprise agreements; and
(b) is not otherwise contrary to law; and
(c) has been made under the rules of the organisation.
(2) Where particulars of an alteration of the rules (other than the eligibility rules) of an organisation have been lodged with the FWC, the General Manager may, with the consent of the organisation, amend the alteration for the purpose of correcting a typographical, clerical or formal error.
(3) An alteration of rules that has been certified under subsection (1) takes effect on the day of certification.
[9] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Registered Organisations Commission (ROC)[2018] FWCFB 16
[10] Ibid., at [24]
[11] Higgins v McGrane & Anor (1961) 5 FLR 82 at 85
[12] Ibid., at 85
[13] Beeson v Blayney (1966) 8 FLR 292
[14] Ibid., at 294
[15] Subsections 144(1) and (2) of the Act provide:
(1)Where the rules of an organisation provide for election for an office to be by a direct voting system, the rules must also provide that, where a ballot is required for such an election, it must be a secret postal ballot.
(2)An organisation may lodge with the FWC an application for an exemption from subsection (1), accompanied by particulars of proposed alterations of the rules of the organisation, to provide for the conduct of elections of the kind referred to in subsection (1) by a secret ballot other than a postal ballot.
[16] Paragraph 143(1)(a) of the Act provides:
(1)The rules of an organisation:
(a)must provide for the election of the holder of each office in the organisation by:
(i)a direct voting system; or
(ii)a collegiate electoral system that, in the case of a full‑time office, is a one‑tier collegiate electoral system;
[17] Section 143 of the Act provides:
(1)The rules of an organisation:
(a)must provide for the election of the holder of each office in the organisation by:
(i)a direct voting system; or
(ii)a collegiate electoral system that, in the case of a full‑time office, is a one‑tier collegiate electoral system; and
(b)must provide for the conduct of every such election (including the acceptance or rejection of nominations) by a returning officer who is not the holder of any office in, or an employee of, the organisation or a branch, section or division of the organisation; and
(c)must provide that, if the returning officer conducting an election finds a nomination to be defective, the returning officer must, before rejecting the nomination, notify the person concerned of the defect and, where practicable, give the person the opportunity of remedying the defect within such period as is applicable under the rules, which must, where practicable, be not less than 7 days after the person is notified; and
(d)must make provision for:
(i)the manner in which persons may become candidates for election; and
(ii)the duties of returning officers; and
(iii)the declaration of the result of an election; and
(e)must provide that, where a ballot is required, it must be a secret ballot, and must make provision for:
(i)in relation to a direct voting system ballot (including a direct voting system ballot that is a stage of an election under a collegiate electoral system)—the day on which the roll of voters for the ballot is to be closed; and
(ii)absent voting and
(iii)the conduct of the ballot; and
(iv)the appointment, conduct and duties of scrutineers to represent the candidates at the ballot; and
(f)must be such as to ensure, as far as practicable, that no irregularities can occur in relation to an election.
(2)Without limiting section 142, the rules of an organisation relating to elections may provide for compulsory voting.
(3)The day provided for in the rules of an organisation as the day on which the roll of voters is to be closed (see paragraph (1)(e)) must be a day no earlier than 30 days, and no later than 7 days, before the day on which nominations for the election open.
(4)A reference in this section to the rules of an organisation includes a reference to the rules of a branch of the organisation.
(5)The reference in paragraph (1)(c) to a nomination being defective does not include a reference to a nomination of a person that is defective because the person is not qualified to hold the office to which the nomination relates.
(6)The rules providing for the day on which the roll of voters for a ballot is to be closed are not to be taken to prevent the correction of errors in the roll after that day.
[18] see E2021/62 and E2022/68 which can be viewed on the Commission’s website at Australian and International Pilots Association (AIPA) - Find a registered organisation - Fair Work Commission (fwc.gov.au)
[19] Re Mellor; Re Federated Liquor and Allied Industries Employees Union of Australia (1987) 18 IR 350
[20] Ibid., at 353
[21] Subsection 9(1) of the Act provides:
(1)In this Act, office, in relation to an organisation or a branch of an organisation means:
(a)an office of president, vice president, secretary or assistant secretary of the organisation or branch; or
(b)the office of a voting member of a collective body of the organisation or branch, being a collective body that has power in relation to any of the following functions:
(i)the management of the affairs of the organisation or branch;
(ii)the determination of policy for the organisation or branch;
(iii)the making, alteration or rescission of rules of the organisation or branch;
(iv)the enforcement of rules of the organisation or branch, or the performance of functions in relation to the enforcement of such rules; or
(c)an office the holder of which is, under the rules of the organisation or branch, entitled to participate directly in any of the functions referred to in subparagraphs (b)(i) and (iv), other than an office the holder of which participates only in accordance with directions given by a collective body or another person for the purpose of implementing:
(i)existing policy of the organisation or branch; or
(ii)decisions concerning the organisation or branch; or
(d)an office the holder of which is, under the rules of the organisation or branch, entitled to participate directly in any of the functions referred to in subparagraphs (b)(ii) and (iii); or
(e)the office of a person holding (whether as trustee or otherwise) property:
(i)of the organisation or branch; or
in which the organisation or branch has a beneficial interest.
[22] See endnote 16 for full citation of paragraph 143(1)(a) of the Act
[23] See endnote 21 for full citation of subsection 9(1) of the Act
[24] Paragraph 141(1)(c) of the Act provides that rules:
(c)may provide for the removal from office of a person elected to an office in the organisation only where the person has been found guilty, under the rules of the organisation, of:
(i)misappropriation of the funds of the organisation; or
(ii)a substantial breach of the rules of the organisation; or
(iii)gross misbehaviour or gross neglect of duty;
or has ceased, under the rules of the organisation, to be eligible to hold the office;
[25] Hills & Ors v Higgins & Ors (1982) 61 FLR 131
[26] Ibid., at 146.
[27]Paragraph 142(1)(c) of the Act provides that rules:
must not impose on applicants for membership, or members, of the organisation, conditions, obligations or restrictions that, having regard to Parliament’s intention in enacting this Act (see section 5) and the objects of this Act and the Fair Work Act, are oppressive, unreasonable or unjust
[28] Bowden v AWU (1946) 56 CAR 536
[29] Ibid ., at 531-532
[30] Cameron v AWU (1959) 2 FLR 45
[31] Ibid., at 53
[32] See for example Wishart v ABLF (1960) 2 FLR 298, Luckman v APTU (1978) 36 FLR 68, Rochfort v Dowdell (1965) 8 FLR 283, Hills & Ors v Higgins & Ors (1982) 61 FLR 131
[33] See for example Wishart v ABLF (1960) 2 FLR 298
[34] See for example Cassidy v APWUA (1967) 11 FLR 124, though the rule in question was in relation to expulsion of members, not suspension of office holders
[35] See for example Hills & Ors v Higgins & Ors (1982) 61 FLR 131
[36] Hardiman v TWU (1954) 80 CAR 232
[37] Ibid., at 236
[38] Rochfort v Dowdell (1965) 8 FLR 283 at 288-289
[39] Rochfort v Dowdell (1965) 8 FLR 283; Thornton & Ors v Mackay & Ors (1946) 56 CAR 561
[40] Re An Election of Offices In the FLAIEU South Australian Branch v Re An Application By Dianne June Kenward of An Enquiry Into the Said Election [1989] FCA 250 (10 July 1989)
[41] Ibid., at [14]
[42] Roughan v AMIEU (1992) 43 IR 193 at 196; MOA v Lancaster (1981) 54 FLR 129 at 164-166
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