Australian Business Industrial

[2016] FWCD 1087

[2016] FWCD 1087

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Australian Business Industrial
(R2015/277)
MR ENRIGHT	MELBOURNE, 5 APRIL 2016
Alteration of other rules of organisation.

[1]        On 11 December 2015 Australian Business Industrial (‘the organisation’) lodged with the

Fair Work Commission a notice and declaration setting out particulars of alterations to the rules

of the organisation.

[2]        The particulars set out alterations to rules 1, 3, 5, 6A, 6B, 6C, 8, 9, 10, 11, 12, 13, 14, 15,

16, 17, 18, 19, 20, 22, 23, 24, 25, 27A, 28, 29, 30, 33, 34, 35, 36, 37, 40, 42, 46, 47, 48, 49, 51,

59, 61, 64, 74, 80, 89, 91A, 93, 96 and 98 of the rules of the organisation.

[3]        On the information contained in the notice, I am satisfied the alterations have been made

under the rules of the organisation.

[4]        In my opinion, the following 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:

a) Rules 1, 3, 5, 6A, 6B, 6C, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 24, 25,

27A, 29, 30, 33, 34, 35, 36, 37, 40, 46, 51, 59, 61, 64, 74, 80, 89, 91A, 93, 96 and 98 of

the rules of the organisation;

b) Rules 28 and 42 insofar as they give effect to changes related to a change from ‘Biennial’

to ‘Quadrennial’ elections.

[5]        I certify accordingly under subsection 159(1) of the Fair Work (Registered Organisations)

Act 2009.

1

[6] Although these alterations to the Rules will take effect upon their certification , the

increase in the terms of office from two years to four years will not have any effect until the

completion of the next election for those offices. As noted in Beeson v Blayney (1966) 8 FLR 292
[2016] FWCD 1087

the term of office is an integral aspect of an election for that office. Further, there is no indication

2

in the application or in the wording of the alteration itself that it is to have a retrospective effect .

[7]        The first elections for a Quadrennial term will be those due to be conducted in 2016.

[8]        The applicant will need to lodge the prescribed information in relation to an election for

offices pursuant to section 189 of the Act, which is due to be held this year, albeit that the term of

office for which those positions will be elected will now be for four years.

[9]        Other amendments, to Rules 28, 31 and 42, are the subject of an application under section

144 of the Fair Work (Registered Organisations) Act 2009. That application is the subject of

further discussions with the applicant.

[10]      The Federal Court’s decision in Re Food Preservers of Australia and Anor (1998) 79

ALR 138 permits a Delegate to sever particular proposed rule alterations while certifying others.

Per Northrop and Ryan JJ:

where an organisation has made alterations to a number of its rules, each rule and

alteration being completely independent of any other rule or alteration, the

Registrar would be free to give his certificate in respect of some of those rule

alterations and to refrain from giving his certificate in respect of others.

[11]      I am satisfied that the proposed alterations to Rules 47,. 48 and 49 are severable from the

other alterations contained in the notices of particulars in light of the principles set out by the

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

[12]      The amendments sought to Rules 47, 48 and 49, while not alterations certifiable under

section 144 of the Act, deal with the same subject matter as the section 144 application, namely,

electronic voting, albeit in relation to electoral college voting.

[13]      Accordingly, I decline at this stage to give a certificate in relation to the proposed

amendments to Rules 47, 48 and 49. A decision on those proposed alterations will be made once

the section 144 application is resolved.

DELEGATE OF THE GENERAL MANAGER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR577188>

1

Fair Work (Registered Organisations) Act 2009 s. 159(3)

2

For examples of this construction being given to similar alterations see Beeson v Blayney (1966) 8 FLR 292 and Higgins v

McGrane (1961) 5 FLR 82.