Australian Community Services Employers Association, Union of Employers; Australian Community Services Employers Association, Union of Employers
[2014] FWCD 7315
•24 October 2014
[2014] FWCD 7315
DECISION
| Fair Work (Registered Organisations) Act 2009 |
| s.159—Alteration of other rules of organisation |
Australian Community Services Employers Association, Union of
Employers
(R2012/136 and R2013/50)
| MR ENRIGHT | MELBOURNE, 24 OCTOBER 2014 |
| Alteration of other rules of organisation. |
[1] On 24 July 2012, the Australian Community Services Employers Association, Union of Employers (the organisation) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to the rules of the Australian Community Services Employers Association, Union of Employers (R2012/136).
[2] The particulars set out alterations to rules 18, 30, 43 and insert new rule 53 of the rules of the Australian Community Services Employers Association, Union of Employers. These alterations seek to expand the number of members of the Board (the organisation’s Committee of Management), change the financial year of the organisation and insert a new dissolution rule.
[3] The organisation was contacted and an inconsistency concerning the number of members of the Board between the proposed rules and existing rules was brought to its attention. Further alterations were discussed and the organisation undertook to remove the inconsistency.
[4] On 26 June 2013, the organisation lodged with the Commission a second notice and
declaration setting out further particulars of alterations to the rules of the organisation
(R2013/50).
[5] The particulars set out alterations to rules 26, 39 and insert a new Schedule 1 to the rules of the Australian Community Services Employers Association, Union of Employers. These alterations remove the inconsistency in the number of Board members, clarify the meaning of the organisation’s special resolution rule and 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. These disclosures are required under the Fair Work (Registered Organisations) Amendment Act 2012 (the Amendment Act).
[6] On the information contained in the notices, I am satisfied that both sets of alterations
have been made under the rules of the organisation.
[2014] FWCD 7315
The Expansion of the Board
[7] The Board of the organisation currently consists of the four office bearers of the
organisation and two ordinary or associate members. The proposed alteration to rules 18 and
26 will increase the number of ordinary or associate members to a maximum of six.
[8] It was identified that a minor ambiguity will remain in the rulebook if both proposed sets of rules are certified. Rule 18, once amended, will expand the Board to include ‘up to six (6) ordinary or associate members (Total up to 10).’ Rule 26, which provides the duties of the ordinary members on the Board, states ‘[t]he six (6) ordinary members of the Board...’ rather than reflect ‘up to six’ as provided in rule 18. This minor ambiguity is already present within the rule book in that rule 26 refers to 2 ordinary members, rather than up to two ordinary members. I do not believe that the continued existence of this minor ambiguity acts to prevent the rules from being certified.
[9] Discussions occuredbetween staff of the Commission and the organisation concerning the role of associate members on the Board of the organisation. While the duties of ordinary members on the Board are explicitly outlined in rule 26, the associate members do not have duties beyond the general duties of the Board. In practice, there do not appear to be associate members currently on the Board of the organisation. I have considered whether increasing the possible number of associate members on the Board is impacted by whether they have express duties or whether the general duties of the Board are sufficient. In my view the general duties of the Board sufficiently describe the duties of associate members so as to satisfy the requirements of s.141(1)(b)(i). I believe the rules before me, which simply expand the size of the Board, are capable of being certified.
[10] The proposed alterations to the size of the Board do not have transitional provisions. Therefore, if certified the rules will operate immediately to create up to four vacant offices on the Board of the organisation. It is well established that a new office cannot be filled by appointment of a casual vacancy as the process contemplates that a position is first made vacant.[1] A vacancy has not occurred in a newly created office. As such the organisation will be required to undertake elections to fill these offices as soon as possible.
[1]See for instance, Grove v Cameron (1972) FLR 59.
[11] I note that the organisation is currently in communication with the Commission to undertake its scheduled elections to the Board. Case law indicates strongly that, absent some express provision to the contrary, the rules of the organisation that apply to an election are those that are in force when nominations open.[2] As the decision to certify these rules has been issued prior to the nominations opening in the scheduled election, it is open to the organisation to amend their existing prescribed information and have the new offices included within the same election.
The Financial Year
[12] Finally I turn my mind to the rules that alter the financial year of the organisation. Section 6 of the Fair Work (Registered Organisations) Act 2009 (the Act) defines financial year to mean the period of 12 months commencing on 1 July, or ‘if the rules of the organisation provide for another period of 12 months as the financial year of the organisation
[2014] FWCD 7315
- the other period of 12 months.’ Sub rule 30(1) of the organisation’s rules currently defines
the financial year as 1 January to 31 December.
[13] The proposed alteration inserts a new sub rule (4) to rule 43 and seeks to redefine the financial year as 1 July to 30 June ‘or such other calendar year period as the Board may determine.’ The Act allows an organisation to determine its own financial year and make provision for that specific twelve month period within its rule book accordingly. The proposed rules provide a manner in which the financial year of the organisation may be changed from time to time by the Board without altering the rules of the organisation. As such it contemplates a definition of the financial year which is neither providedin the Act nor the rule book. In my view this alteration is contrary to section 6 of the Act.
[14] It follows I must determine whether rule 43(4) can be severed from the remainder of the alterations. I have reflected upon the principles as set out by the majority in Food
Preservers’ Union of Australia[3]which considered the question of severability. Essential to
the task is determining whether the alterations are sufficiently discrete from the other
[15] The alteration to rule 43 is contained within the first set of particulars. The first set of particulars addresses the new dissolution rule (rule 53), the increase to the size of the Board (rule 18) and alterations to the financial year (rules 43(4) and 30(1)). The alterations to rules 53 and the 18 are, in my opinion, sufficiently independent of the definition of the financial year that they will be unaffected by any effort to sever the alteration to rule 43. In my opinion, a refusal to certify the changes to rule 43 will not affect the meaning or effect of the alterations to rules 53 or 18. I will address rule 30(1) below.
[16] The second set of particulars were transacted at a much later date and include the alterations required by the Amendment Act (Schedule 1), a rewording of the special resolution rule (rule 39) and recognises the increase in the number of ordinary Board members (rule 26). I believe it is, with the exception of the alteration to rule 26, fundamentally different to and discrete from the first particulars. I therefore am satisfied that the alterations to rule 39 and the new Schedule 1 are sufficiently independent of the alteration contemplated by rule 43(4) and will be unaffected by the severing of rule 43(4).
[17] The alteration to rule 26 is a direct consequence of the first notification; it removes the inconsistency that arose in the size of the Board following the transacting of the first set of alterations. For the reasons explained above in [15] I believe the expansion of the Board is sufficiently independent of the effect and purpose of rule 43 that rule 43(4) can be severed from this alteration.
[18] However, the alteration to rule 30(1) deletes the current definition of financial year from the rulebook. It appears that this has been done in order to facilitate the new definition of financial year which is contained in proposed rule 43(4). In my view, they are two conjoined steps undertaken to implement the one purpose - changing the financial year. I am therefore unable to be satisfied that the alteration to rule 30(1) is sufficiently discrete or independent of the alteration to rule 43(4) in the manner contemplated by Food Preservers’
Union of Australia.
[2014] FWCD 7315
[19] While I do not believe rules 30(1) and 43(4) can be severed from each other, I am satisfied that, for the reasons contained in [15] through to [17] above, the two alterations are severable from the remainder. Consequently, I sever the alterations to rules 30(1) and 43(4) from the other alterations contained within the two sets of particulars.
[20] In my opinion, the alterations, with the exception of those to rules 30(1) and 43(4), comply with and are not contrary to the Amendment Act, the Act, 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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