Australian Education Union
[2024] FWCD 1039
•25 OCTOBER 2024
| [2024] FWCD 1039 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Australian Education Union
(R2024/99)
| CHRIS ENRIGHT | MELBOURNE, 25 OCTOBER 2024 |
Alteration of other rules of organisation.
On 8 July 2024 the ACT Branch of the Australian Education Union (the Branch) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of an alteration to its Federal Branch Rules. Further information about the transaction of the alterations was provided on 10 July 2024 and 5 August 2024.
The Branch seeks certification of the alteration under section 159 of the Fair Work (Registered Organisations) Act 2009 (the Act).
The particulars set out an alteration to Federal Branch Rule 15 – Branch Officers. It is convenient to set out the alteration in full. If the alteration is certified, Federal Branch Rule 15.7.4 will state (with the struck-through words removed):
“15.7.4 Branch Executive may by resolution of a majority of two thirds of the votes able to be cast by those present at a meeting:
…
b. reprimand, impose a fine not exceeding $100.00, suspend from office for a period not exceeding 6 months, or remove any person elected to any office within the Branch if that person has been found guilty of:
i. misappropriation of the funds of the Union;
ii. a substantial breach of the Union's rules;
iii. gross misbehaviour
in relation to their office;
iv. gross neglect of duty…”[1]
A Branch officer is currently liable to be reprimanded, fined, suspended or removed from office for gross misbehaviour in relation to their office, among other things. The proposed alteration removes the express requirement for the impugned misbehaviour to occur in relation to the officer’s office.[2]
The objection
On 19 July 2024 Commission staff spoke with a Mr Glenn Fowler. Mr Fowler is a member of the Australian Education Union, attached to the Branch.[3] Mr Fowler is a former Branch Secretary of the Branch[4] and indicated that he wanted to make submissions about the alteration. Mr Fowler was invited to email the Commission about the application. He did so later that day.[5]
Before turning to the substance of Mr Fowler’s 19 July 2024 email it is necessary to deal with a preliminary procedural issue. As I understand his email, Mr Fowler asked me to deal with the current rule alteration as an element of another matter he is pursuing before the Commission. In my view, that is not an appropriate course. The two matters are independent of one another as they fall for consideration under different provisions of the Act. The current alteration to the Federal Branch Rules will therefore be decided solely under s.159.
Among other things, the email received from Mr Fowler on 19 July 2024 referred to “[t]he proposed rule change [which] has reportedly been before the Commission for approval since Monday 8 July.”[6] Mr Fowler went on to say:
· “I would like to make a submission against its approval by the FWC”;[7]
· “I would like to have clarified what the process and timeline is for any submission I make in opposition to the Branch's rule change”;[8] and
· “can I be assured that the Commission will consider any submission I make before making a decision about whether the Branch's proposed rule change should be approved;”[9]
Commission staff responded to Mr Fowler by email on 22 July 2024.
The email from the Commission noted “[t]he General Manager and his delegate exercise a power under section 159 of the Fair Work (Registered Organisations) Act 2009. We are only able to refuse certification if the rule alteration does not satisfy the test in section 159”[10] before setting out s.159(1) of the Act. The email invited Mr Fowler to make his objection by 2 August 2024[11] and noted his objection “will be provided to the AEU ACT branch for their response.”[12] A redacted copy of the documents lodged by the Branch was attached to the email.[13]
In a further exchange of email on 22 July 2024 the Commission informed Mr Fowler, among other things:
· the Branch has been informed that an objection has been flagged;
· the Branch was told a copy of its application would be sent to the objector;
· documents lodged by Mr Fowler in this matter would be given to the Branch; and
· the Branch would be given an opportunity to respond to any objection lodged.[14]
Mr Fowler’s objection was lodged in the Commission on 31 July 2024.[15]
The Commission received another email from Mr Fowler on 31 July 2024.[16] In my view, the second email relates to Mr Fowler’s other matter in the Commission. It is not relevant to my consideration of the present Federal Branch Rule alteration. It was not considered part of the objection and was not provided to the Branch.[17] Mr Fowler was informed of that fact.[18] He has not disputed that finding. The second email received from Mr Fowler on 31 July 2024 does not form part of the material I have considered in reaching my decision in this matter.
Mr Fowler’s objection was given to the Branch on 5 August 2024. The Branch was:
· afforded an opportunity to respond to the objection;
· given until 16 August 2024 to do so;[19]
· informed the Commission could only refuse certification of the alteration if it did not satisfy the test in s.159 of the Act; and
· advised any response it lodged would be forwarded to the objector.[20]
On 16 August 2024 two documents were lodged by the Branch:
· submissions in reply to Mr Fowler’s objection;[21] and
· a copy of the Branch Council’s Standing Orders (Standing Orders).[22] The Standing Orders are referred to in both Mr Fowler’s objection and the Branch’s submissions in reply. It was inadvertently omitted from the Branch’s email containing the submissions in reply.[23]
Mr Fowler was provided a copy of the Branch’s submissions in reply on 26 August 2024.[24] Mr Fowler was afforded the opportunity to address the response, by 2 September 2024. He was informed that the objection and responses would be considered and a decision drafted for me.[25]
Mr Fowler successfully sought an extension of time—until 9 September 2024—to lodge his response.[26] Ultimately, Mr Fowler’s response was received on 7 September 2024.[27]
For completeness, I note that Mr Fowler also emailed the Commission on 30 August 2024. In my view, that email relates to Mr Fowler’s other matter in the Commission and is not relevant to my consideration of the present Federal Branch Rule alteration. Mr Fowler was informed that his 30 August 2024 email had been internally forwarded for consideration.[28] Mr Fowler’s 30 August 2024 email does not form part of the material I have considered in reaching my decision in this matter.
As the chronology suggests, a volume of material has been placed before me in this matter. In reaching my conclusion I have had regard to all the material lodged by Mr Fowler and the Branch in this matter.[29] It is not necessary to recite all the material placed before me, but relevant extracts will be reproduced.
Consideration
Was the alteration made under the rules of the organisation – s.159(1)(c) of the Act?
The declaration accompanying the particulars of the alteration declared that the alterations were made in accordance with the rules of the Branch.[30] It also stated the action taken under the Branch’s Federal Branch Rules to make the alteration.[31]
Draft minutes of the relevant Branch Council were annexed to the declaration,[32] along with an offer to provide minutes of the meeting once they had been confirmed.[33] Those minutes were lodged on 5 August 2024,[34] following their approval at a 3 August 2024 Branch Council meeting.[35]
On their face, the information contained in the declaration and the minutes of the relevant Branch Council meeting suggest the alteration was made under the rules of the organisation, as s.159(1)(c) requires.
However, it appears Mr Fowler’s objection urges me to reach a different conclusion.
Mr Fowler submits:
“24. Following the cancellation of the Council meeting of 11 May 2024, the Council meeting scheduled for 18 June 2024 went ahead as planned. I had no intention of attending. I understand that for the first time in the history of our union a paid security guard was in place at the entrance. As reported to me by multiple attendees at the meeting, the conduct of the debate about the rule alteration proposal was the antithesis of participative democracy, and was conducted in a manner that was “oppressive, unreasonable and unjust”, despite what the minutes suggest. I have been informed that:
·Although it was the most substantive matter on the agenda and likely to attract debate, the rule alteration matter appeared at the end of the agenda, making it likely that the imminent close of the meeting would affect it;
·Matters that required no substantive decision by Council dominated the first two and a half hours of the meeting;
·After a long day teaching, and as 8pm approached, Councillors had visibly lost their stomachs for debate;
·A thirty-minute extension to the meeting could have been exercised, especially after it became clear that there was opposition to the motion, but it was not, and the stand-in chair did not suggest it;
·After the rule alteration motion was moved and seconded, the stand-in chair did not follow procedure by asking Council if anybody wished to speak against the motion or propose an amendment to the motion, despite what the minutes suggest;
·The stand-in chair tentatively proposed that Councillors vote on the motion;
·A Councillor and potential speaker against the motion, Tania Blak, who had not been invited to speak against the motion by the chair as she should have been, stated that she had an objection to the rule alteration and would like to speak;
·Ms Blak started speaking against the motion but on three occasions was interrupted by the stand-in chair and asked if she had a question (which is a hopeless misunderstanding of standing orders, as it appears the stand-in chair thought she was encouraging those who speak during the separate “Questions” agenda item to frame their contribution as a question rather than a statement);
·A Councillor, Roger Amey, then spoke ostensibly about the mood in the room, which is inappropriate, and he should not have been speaking for the motion (as the minutes record) if the previous speaker was not permitted to speak against the motion without being cut off repeatedly by the stand-in chair;
·Another Councillor, Sue La Flamme, wanted to speak against the motion but was cut off immediately;
·The stand-in chair proposed Council vote on the motion, but there was no mover, seconder or decision that debate be ended and the motion be put, despite what the minutes suggest;
·A vote occurred and the motion was carried, though not unanimously.
25. Tania Blak and Sue La Flamme are two Councillors who were not permitted by the stand-in chair to speak against the motion, uninterrupted, despite clearly intending to. These members have held office positions in the AEU for decades. They have read the evidence of my innocence and are committed to supporting me. For seeking to debate a rule alteration, ostracism by the current union leadership will undoubtedly be their reward, as it has been for a number of other members who have stood up for fair treatment and the presumption of innocence. Both Tania and Sue are prepared to be interviewed by you or to make a statement on this matter. I request that they be contacted as part of your process.”[36] (original emphasis removed)
Although it is not clearly articulated, I am prepared to assume that Mr Fowler is submitting—in effect—that the failure to uphold the Standing Orders:
· invalidated (at least) the portion of the Branch Council meeting which dealt with the transaction of the rule alteration; and
· as a consequence, the alteration was not made under the rules of the organisation.
In reply, the Branch submitted:
“21. With respect to paragraphs 21 to 25, much of what is asserted is wrong and/or not relevant. In respect of the process undertaken at the Branch Council in approving the rule alteration, we advise as follows:
21.1. The proposed rule change was considered at item 11 on the agenda of the meeting held on 18 June 2024. As noted in the approved minutes the motion was moved by Angela Burroughs and seconded by Barbara Monsma.
21.2. After the motion was moved and seconded, the chair (Vice-President, Sarah Warren) invited speakers against the motion. Tania Blak spoke against the motion. The chair then invited speakers for the motion. Roger Amey spoke for the motion. The chair then invited speakers against the motion. Sue La Flamme stood to speak.
21.3. However, at the same time, Jackson St George moved a procedural motion that “the motion be put”. As defined under the Branch’s standing orders (point 22, attached), this, on being duly seconded, has to be put without further discussion. Jackson St George’s motion was seconded by Dean Pilton. Accordingly, it was put and was carried by all eligible to vote with the exception of Tania Blak and Sue La Flamme, who voted against the motion.
21.4. The original motion was then put. It was carried, by all eligible voters with the exception of Tania Blak and Sue La Flamme, who voted against it.
21.5. At the Branch Council meeting held on 3 August 2024, Tania Blak sought to amend the minutes from 18 June 2024 to indicate that she did not have the opportunity to object to the motion about the rule change. This was disputed by others in attendance at Council. The Branch President as the chair, explained the impact of the procedural motion having been carried, which meant that the motion had to be put. Tania Blak claimed that this was not explained to Councillors on 18 June 2024. This claim was roundly disputed by others in attendance at the meeting.
21.6. The 18 June 2024 minutes were then put without amendment and approved by Council as an accurate record. Tania Blak voted against this motion, but all others eligible to vote voted to approve the minutes.
21.7. Mr Fowler’s account of the meeting is not only false, it is informed by a person in attendance (presumably Tania Blak) whose account of the meeting was demonstrably inaccurate and misleading.”[37]
Mr Fowler replied:
“(f) As much as the Branch seeks in paragraph 21 to suggest that the rule alteration debate at Council on 18 June 2024 was an exercise in democracy, any unionist would read between the lines on this and immediately know that the procedural motion referred to in 21.3 was an attempt, and no doubt a pre-planned one, to silence debate and stifle democracy. The two women referred to as having sought to provide a contrary argument at that meeting remain eager to speak with you about how democratic that moment was.”[38]
Leaving aside the first four dot points in paragraph 24 of Mr Fowler’s 1 August 2024 submissions because they do not raise considerations relevant to s.159(1)(c) of the Act, there is a conflict between Mr Fowler’s version of what took place at the 18 June 2024 Branch Council meeting and the version put forward by the Branch. To resolve that conflict, it is necessary to prefer one version of events or the other.
I prefer the version put forward by the Branch, set out in paragraph 21 of its 16 August 2024 submissions. It is consistent with—and substantiated by— the approved minutes of the 18 June 2024 Branch Council meeting. It is also consistent with the Standing Orders.[39] On the other hand Mr Fowler provides a hearsay account of what took place.[40] Ultimately, a hearsay account of what took place at a meeting should be accorded less weight than the approved minutes of that meeting.
Mr Fowler is a very experienced and former long serving Secretary of the Branch and as I have earlier indicated, expressed a desire on 19 July 2024 to make submissions against the certification of a rule amendment which had earlier been proposed by the Branch. Over the following period of approximately seven weeks, Mr Fowler continued to engage with the Commission by making written objection submissions and then lodging a response in reply on 7 September 2024 to submissions which had been made by the Branch.
While it was open to them to do so, neither of the people referred to in paragraph 25 of Mr Fowler’s 1 August 2024 objection and paragraph 8(f) of his 9 September 2024 response to the Branch’s submission in reply engaged in any form of contact with, or provided any information to, the Commission.
Mr Fowler’s request for the Commission to contact them misconceives my role under s.159 of the Act. A decision under s.159 must be based on information provided by the applicant, any relevant authorities and—in cases such as this—material provided by way of objection. The process is not akin to those which are likely to apply under Part 4 of Chapter 11 of the Act. Nor does the process change because there is an objector.
It is not my role to conduct an expansive enquiry beyond the materials submitted by the parties or to seek out persons who potentially have information capable of supporting one party or the other and “interview”[41] them. As I have indicated above, it was open for the two people referred to by Mr Fowler to come forward if they were “eager to speak with” the Commission in support of Mr Fowlers objection to the application.[42] They did not and I am bound to make my decision on the available material before me.
Even if I were wrong and Mr Fowler’s version of events is accurate, it does not inevitably follow that the portion of the 18 June 2024 Branch Council meeting devoted to the rule alteration (or for that matter the whole of the meeting) was invalidated. There may simply have been a dispute about the proper application of the Standing Orders, rather than non-compliance with them. The chair’s view prevailed. There is no suggestion that a motion of dissent from the chair’s ruling was moved.[43] In any event, the Standing Orders do not form part of the Federal Branch Rules. Even if the Standing Orders were not complied with in the manner complained of, neither the nature of the non-compliance nor the degree of non-compliance would be sufficient to result in the meeting (or part of it) being vitiated and the resolution transacting the alteration not being passed.
Mr Fowler also criticised the amount of notice given to the Branch Executive before it met in the first stage of the process culminating in the transaction of the proposed alterations. Under Federal Branch Rule 27.1, alterations to the Federal Branch Rules are transacted by the Branch Council, after the proposed alterations have been proposed by the Branch Executive (see Federal Branch Rule 27.1.1) or at least ten sub-branches.[44]
Mr Fowler submits:
“18. …[O]n 10 April 2024, the Branch Executive convened online for an unscheduled meeting called at one day’s notice to endorse the rule alteration you now have before you for approval.”[45] (original emphasis removed)
Although the point of Mr Fowler’s criticism is directed to another matter,[46] he is nonetheless—as I understand the submission—placing the adequacy of the notice period in issue and perhaps also arguing that the Branch Executive was not entitled to meet electronically. If either of those criticisms were borne out, the validity of the Branch Executive meeting would be called into question. A further question would then arise about whether the requirements of Federal Branch Rule 27.1.1 had been met.
In my view the Federal Branch Rules countenance Branch Executive meetings taking place at short notice.[47] Further, these meetings may take place by electronic means.[48]
I am satisfied the alteration has been made under the rules of the organisation.
Does the alteration comply with, and is it not contrary to, the Act, the Fair Work Act 2009 (FW Act), modern awards and enterprise agreements and is it not otherwise contrary to law – ss.159(1)(a) & (b) of the Act?
As noted in paragraph [3] above the proposed alteration removed the words “in relation to their office” from the gross misbehaviour ground for removal from a Branch office.
Any gross misbehaviour currently complained of must have occurred in relation to the office held by the person charged under Federal Branch Rule 15. The proposed alteration removes that qualifier.
Mr Fowler submits:
“2. The rule alteration does not satisfy the test in section 159(1)(a) in that it is contrary to the Fair Work (Registered Organisations) Act 2009.
3. The rule alteration is contrary to section 142 of the Act in that it allows the current leadership to use the rule to impose on one or more members of the organisation a restriction which is contrary to Parliament’s intention in enacting the Act (section 5) and is “oppressive, unreasonable and unjust”.
4. The rule alteration is contrary to section 5(3) of the Act which insists that employee organisations registered under the Act (a) are representative of and accountable to their members, (b) encourage members to participate in the affairs of organisations to which they belong, (c) encourage high standards of accountability of organisations to their members, and (d) provide for the democratic functioning and control of organisations.”[49]
Mr Fowler did not provide particulars of those grounds of objection. Nor did he provide any supporting authority or other material to substantiate those grounds.
In response, the Branch submitted:
“3. We disagree with the assertion in paragraph 2 of the Objection that the rule alteration does not satisfy the test in section 159(1)(a) in that it is contrary to the Fair Work (Registered Organisations) Act 2009 (Cth) (FWRO Act).
4. We disagree with the assertion in paragraph 3 of the Objection that the rule alteration is contrary to s 142 of the FWRO Act, in that it is oppressive, unreasonable or unjust.
5. To this end, we note that the proposed new rule 15.7.4 matches the wording of s 141(1)(c) of the FWRO Act
…
6. Accordingly, Mr Fowler’s argument that a rule using the same words as the above section could somehow be contrary to law, is without any merit.”[50]
A number of points need to be made.
First, the grounds of objection set out in paragraph 2 – 4 of Mr Fowler’s 1 August 2024 Objection do not have a priori force. Simply referring to those sections of the Act does not demonstrate that the proposed alteration is contrary to the Act.[51]
Secondly, the submission made by the Branch in paragraphs 5 and 6 of its submissions in reply is compelling and of considerable force.
Section 141(1)(b) requires the rules of a registered organisation to provide for “the removal of holders of offices in the organisation and its branches.”[52]
Section 141(1)(c) states:
“(1) The rules of an organisation:
…
(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;” (my emphasis)
Taken together these sections indicate that the Parliament has decided the rules of registered organisations must allow officers to be removed in certain circumstances and have determined the circumstances where it is appropriate to do so.
As the Branch points out in paragraph 6 of its submissions in reply, the proposed alteration uses the same words as s.141(1)(c) of the Act. As a matter of logic, it is difficult to conceive how a rule which precisely adopts the text of the Act would be contrary to the Act.
Mr Fowler’s 1 August 2024 objection did not address ss.141(1)(b) or 141(c) of the Act. Nor did he mention those sections in his 8 September 2024 response to the Branch’s submission in reply, despite the Branch’s reliance on s.141(1)(c) in its submissions.[53]
Mr Fowler did refer me to Division 2 of Part 4 of Chapter 8 of the Act and particularly to s.215,[54] submitting “[t]o prevent a paying member from holding office in a union is a serious matter, and a high bar has been rightly set.”[55]
Division 2 of Part 4 of Chapter 8 does not deal with removal from office for gross misbehaviour, as the culmination of a process contained in a registered organisation’s rules. Section 215 of the Act is concerned with a person:
· ceasing to hold office, and
· being rendered ineligible to be:
o a candidate for election to office;
o elected to office; or
o appointed to office
if they have been convicted of certain criminal offences, unless the Federal Court of Australia rules otherwise.[56]
Irrespective of whether Mr Fowler’s characterisation of s.215 is correct, the existence of that section[57] does not make the current alteration contrary to the Act. Section 215 is not presently relevant. The circumstances dealt with under Division 2 of Part 4 of Chapter 8 are different to those dealt with by ss.141(1)(b) and 141(1)(c).
At paragraph 2 of his submission Mr Fowler refers to section 142 of the Act. He quotes some of the text of s.142(1)(c).
Section 142(1)(c) of the Act states:
“(1) The rules of an organisation:
(c) 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;”
Parliament’s intention in enacting the Act is set out in s.5 of the Act:
“(1) It is Parliament’s intention in enacting this Act to enhance relations within workplaces between federal system employers and federal system employees and to reduce the adverse effects of industrial disputation.
(2) Parliament considers that those relations will be enhanced and those adverse effects will be reduced, if associations of employers and employees are required to meet the standards set out in this Act in order to gain the rights and privileges accorded to associations under this Act and the Fair Work Act.
(3) The standards set out in 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; 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.”
There do not appear to be general objects of the Act buoying those set out in section 5. The objects of the FW Act are set out in section 3 of that Act. It is not necessary to reproduce them.
Section 142(1)(c) of the Act is concerned with what the rules of a registered organisation must not do. Section 142(c) contains a four limbed test. The prohibition in s.142(1)(c) is only engaged when all four limbs of the test are met.
First, the rules must not impose on applicants for membership, or members, of the organisation, conditions, obligations or restrictions.
Not every condition, obligation or restriction is proscribed. Section 142(1)(c) is only concerned with conditions, obligations or restrictions imposed by the rules on members of an organisation, or applicants for membership.
Next, the mere imposition of conditions, obligations or restrictions on the relevant cohort is not enough. They must have a particular character: the conditions, obligations or restrictions placed on members of an organisation, or applicants for membership must be oppressive, unreasonable or unjust.
Finally, s.142(1)(c) does not invite a general assessment of oppressiveness, unreasonableness or unjustness. The assessment is a limited one. It is referrable to the matters set out in s.5(1) – (3) of the Act, s.3 of the FW Act, modern awards and agreements.
The range of gross misbehaviour which could be sanctioned under the proposed rule appears broader than the gross misbehaviour that can be sanctioned under the current rule. On that basis, I am prepared to assume the proposed alteration imposes a condition, obligation or restriction.
Further, because holding office in the Branch is tied to membership,[58] I accept the condition, obligation or restriction would be imposed on members of the organisation.
However, the condition, obligation or restriction imposed on members is not oppressive, unreasonable or unjust.
Sections 5(1) – (3) are not substantive enactments. They are statements of intention, akin to objects of an Act. The Act thereafter sets out the substantive provisions which regulate the affairs of registered organisations in a manner the Parliament considers conducive to the attainment of its Parliamentary intentions. Sections 141(1)(b) & (c) are two of those substantive provisions. They require the rules to make provision for the removal of the holders of office from their office and they stake out the limits of what, in the Parliament’s view, constitute appropriate grounds for removal from office. Sections 142(1)(b) & (c) embody what the Parliament considers conducive to the attainment of the standards set out in section 5, so far as removal from office is concerned. A proposed rule mirroring that embodiment can hardly said to impose oppressive, unreasonable or unjust conditions, obligations or restrictions, having regard to those very standards.
None of this should be taken to suggest that I doubt Mr Fowler’s displeasure with his treatment at the hands of the Branch. Nor do I doubt that he sincerely holds the views he has set out in the material lodged in this matter. I have no reason to doubt the sincerity of Mr Fowler’s concerns. However, Mr Fowler’s concerns about what might transpire should the rules be altered, is not a sufficient basis to conclude that the alterations impose on members (or applicants for membership) of the Branch conditions, obligations or restrictions that are oppressive, unreasonable or unjust when regard is had to Parliament’s intention in enacting the Act and the objects of the Act and the FW Act.
So far as it relies on s.142(1)(c) of the Act, Mr Fowler’s objection to the alteration must fail.
For similar reasons I also reject Mr Fowler’s submission that the proposed alteration is contrary to s.5(3)(a)-(d) of the Act, or any of them. Those subsections set out standards required to be met by registered organisations.[59] To facilitate the meeting of those standards—so far as removal from office is concerned—sections 141(1)(b) & (c) have been included in the Act. Again, the proposed alteration aligns the Federal Branch Rule with s.141(1)(c). It is difficult to understand how a rule which mirrors a provision the Parliament considered appropriate to attain the standards which underpin the intentions of the Act could be contrary to those standards.
The alteration is not contrary to ss.5, 141(1)(c) or 142(1)(c) of the Act. Nor does it fail to comply with them. No other sections of the Act are relevant. Nor am I aware of any relevant provisions of the FW Act, modern awards or agreements. I therefore reject Mr Fowler’s submission that “The rule alteration does not satisfy the test in section 159(1)(a) in that it is contrary to the Fair Work (Registered Organisations) Act 2009.”
Mr Fowler made a number of submissions going to other matters. While it is not necessary to set those submissions out, they warrant a brief response.
Mr Fowler suggests that the rule will be improperly used. He submits the current rule alteration “has been expressly designed to disenfranchise one member, and that member is me.”[60]. I do not accept that characterisation. It is clear on the face of both Federal Branch Rule 15.7 and the proposed alteration to Federal Branch Rule 15.7.4 that the provisions are intended to apply to officers of the Branch generally.
Mr Fowler may in fact be submitting that the Branch intends to improperly use the proposed rule to his detriment. If that is so, it is not a matter relevant to my considerations under s.159 of the Act. If this rule is misapplied, Mr Fowler’s remedy would lie under s.164 of the Act. I agree with Delegate Carruthers, who said:
“It is not enough that a rule is capable of being misused in such a way as to operate unreasonably. Nor is it enough that a rule might give rise to an unintended, unreasonable consequence. To be incapable of certification under s.159, the rule must be oppressive, unreasonable or unjust on its face…. If a rule is applied in a way which produces an oppressive, unreasonable or unjust result, relief is available to an affected member at that time.”[61]
Mr Fowler suggests that the Branch has acted against him under the proposed rule.[62] Without making any finding about whether that has occurred, I draw both the Branch and Mr Fowler’s attention to s.159(3) of the Act, which states:
“An alteration of rules that has been certified under subsection (1) takes effect on the day of certification.”
In any event, that is not be a matter relevant to my consideration under s.159 of the Act. If Mr Fowler’s suggestion is true, his remedy lies under s.164 of the Act.
Conclusion
In my opinion, the alteration complies with and is not contrary to the Act, the FW Act, modern awards and enterprise agreements, is not otherwise contrary to law and was made under the rules of the organisation. I certify accordingly under subsection 159(1) of the Act.
DELEGATE OF THE GENERAL MANAGER
[1] See Schedules A & B to Branch President Angela Burroughs’ 8 July 2024 declaration.
[2] See Federal Branch Rule 15.4.7(c).
[3] See the attachment to Mr Fowler’s email to the 8.29 pm email to the Commission at paragraphs 5 & 16 – 17. That attachment describes itself as a 1 August 2024 objection and will be referred to those terms throughout this decision. See also paragraph 6 of Mr Fowler’s 8 September 2024 response to the Branch’s submission in reply and Federal Rules 2 (Re: definition of “Member”), 9(1), 21(2)(a) & 5(9).
[4] See paragraph 10 of Mr Fowler’s 1 August 2024 objection. See also the following annual returns of information lodged in either the Commission or the Registered Organisations Commission under s.233 of the Act: AR2021/64, AR2020/65, AR2019/87, AR 2018/90, AR2017/94, AR2016/107, AR2015/115, AR2014/191 & AR2013/271.
[5] I note that during his 19 July 2024 conversation, Mr Fowler indicated he had emailed the Commission about the Branch’s rule alteration application during the week ending 12 July 2024 but had received no response. The earlier email was initially thought to form part of the material in support of the separate matter referred to in paragraph [6] below.
[6] See the fifth paragraph of Mr Fowler’s 19 July 2024 email. There is no issue that this is a reference to the present alteration.
[7] Ibid.
[8] See the ninth paragraph of Mr Fowler’s 19 July 2024 email.
[9] See the ninth paragraph of Mr Fowler’s 19 July 2024 email.
[10] See the fifth paragraph of the 11.51 am 22 July 2024 email from the Commission to Mr Fowler.
[11] See the third paragraph of the 11.51 am 22 July 2024 email from the Commission to Mr Fowler.
[12] See the fourth paragraph of the 11.51 am 22 July 2024 email from the Commission to Mr Fowler.
[13] The draft minutes were lodged by the Branch in their entirety. The version provided for objections only included the sections relevant to the rule alteration.
[14] See the second and third paragraph of the 5.03 pm 22 July 2024 email from the Commission to Mr Fowler.
[15] See Mr Fowler’s email to the 8.29 pm email to the Commission. That attachment describes itself as a 1 August 2024 objection and will be referred to those terms throughout this decision.
[16] See Mr Fowler’s email to the 8.58 pm email to the Commission.
[17] I note the latter email was referred internally to the appropriate team.
[18] See the Commission’s 5 August 2024 email to Mr Fowler.
[19] See paragraph 4 of the Commission’s 5 August 2024 email to the Branch.
[20] Ibid.
[21] See Angela Burroughs’ 16 August 2024 email to the Commission.
[22] See Branch Director – Workplace Advocacy and Member Support Matthew Peterson’s 16 August 2024 email to the Commission. The Standing Orders is an internal administrative document (see Federal Branch Rule 9.1.2(b)). It deals with procedural matters associated with the control of the Branch Council meetings. It does not form part of the Branch’s Federal Branch Rules (see Federal Branch Rule 9.1.2(b)).
[23] See the second paragraph of Matthew Peterson’s 16 August 2024 email to the Commission.
[24] See the 26 August 2024 email from the Commission to Mr Fowler.
[25] See the second and third paragraphs of the 26 August 2024 email from the Commission to Mr Fowler. See also ss.343A(1) & (3) of the Act.
[26] See Mr Fowler’s 26 August 2024 email to the Commission and the Commission’s 29 August 2024 email in reply.
[27] See Mr Fowler’s 10.53 am 7 September 2024 and 10.53 am 7 September 2024 emails to the Commission.
[28] See the Commission’s 30 August 2024 email to Mr Fowler.
[29] However, as stated, I have not had regard to the emails from Mr Fowler referred to in paragraphs [12] and [17] above.
[30] See paragraph 1 of Angela Burroughs’ 8 July 2024 declaration.
[31] Ibid at paragraphs 4(a) – (k).
[32] Ibid at paragraph 4(l).
[33] Ibid.
[34] See Matthew Peterson’s 5 August 2024 email to the Commission.
[35] Ibid: see the second paragraph.
[36] See paragraphs 24 - 25 of Mr Fowler’s 1 August 2024 objection.
[37] See paragraph 21 of the Branch’s submissions in reply lodged on 16 August 2024.
[38] See paragraph 8(f) of Glenn Fowler’s 8 September 2024 response to the Branch’s submission in reply.
[39] See particularly Standing Orders 12, 22 & 20.
[40] Mr Fowler has admitted he did not attend the meeting; he had no intention of doing so – see paragraph 24 of his 1 August 2024 Objection.
[41] See paragraph 25 of Mr Fowler’s 1 August 2024 Objection.
[42] See paragraph 8(f) of Glenn Fowler’s 8 September 2024 response to the Branch’s submission in reply.
[43] See Standing Order 25.
[44] See Federal Branch Rule 27.1.2.
[45] See paragraph 18 of Mr Fowler’s 1 August 2024 Objection.
[46] Which I will discuss in paragraphs [72] - [73] below.
[47] See Federal Branch Rules 10.4.2(a) & (b).
[48] See Federal Branch Rule 29.
[49] See paragraphs 2 - 4 of Mr Fowler’s 1 August 2024 Objection.
[50] See paragraphs 3 - 6 of the Branch’s submissions in reply lodged on 16 August 2024.
[51] Cf for example an alteration that changed a term of office from four years to eight. That alteration would be self-evidently contrary to the Act; see s.145 of the Act which imposes a maximum for terms of office.
[52] Nothing in that section, or elsewhere in the Act prohibit removal from office rules being made on a branch by branch basis if an organisation is divided into branches, so the existence of a rule such as Federal Branch Rule 15 is unremarkable.
[53] See paragraphs 3 - 6 of the Branch’s submissions in reply lodged on 16 August 2024.
[54] See paragraph 8 of Mr Fowler’s 1 August 2024 Objection.
[55] Ibid.
[56] Division 2 of Part 4 of Chapter 8 also deals with various associated matters, none of which are relevant to consideration of the current alteration under s.159 of the Act.
[57] Or the provisions of Division 2 of Part 4 of Chapter 8 generally.
[58] See column C of the Election Table which forms part of the Federal Branch Rules. See also Federal Branch Rule 15.7.2.
[59] See s.5(2) of the Act.
[60] See paragraph 2 of Mr Fowler’s 8 September 2024 response to the Branch’s submission in reply. See also, for instance, paragraphs 7 & 8(d) and paragraph 7 of Mr Fowler’s 1 August 2024 Objection.
[61] See Re: The Master Plumbers' and Mechanical Services Association of Australia; [2012] FWAD 6715; Ms Curruthers; 14 August 2012 citing, for instance, O'Sullivan v Australian Workers Union (1938) 39 CAR 323; Hay v Australian Workers Union (1944) 53 CAR 674; Allshorn v Stapleton (1984) 4 FCR 326 and later referring to ss. 163 - 164A of the Act
[62] See paragraph 8(g) of Mr Fowler’s 8 September 2024 response to the Branch’s submission in reply. See also paragraph 7 of Mr Fowler’s 1 August 2024 objection.
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