Australian Education Union

[2024] FWCD 1037

[2024] FWCD 1037

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

Australian Education Union

(R2024/90)

CHRIS ENRIGHT MELBOURNE, 24 JULY 2024

Alteration of other rules of organisation.

1. On 24 June 2024 the Western Australian Branch of the Australian Education Union (the Branch) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules. Further information in support of the alterations was received on 9 July 2024.

1. The Branch seeks certification of the alterations under section 159 of the Fair Work (Registered Organisations) Act 2009 (the Act).

1. On the information contained in the notice and declaration, I am satisfied the alterations have been made under the rules of the organisation.

1. The particulars set out alterations to the following Western Australian Branch rules:

   ·     Rule 5 – Branch Executive; and

   ·     Rule 5.1 – Branch Emergency Committee.

1. The alteration to rule 5(9) clarifies that the current “by post” method for meeting includes electronic post. This alteration is minor and uncontroversial.

1. The current rule 5.1 sets out the powers, duties and composition of the Branch Emergency Committee (BEC). Among other things, the BEC can exercise all the powers of the Branch Executive between meetings of Branch Executive subject to any express limitations. In light of the managerial functions carried by the BEC, I note that the members of BEC are officers as defined by section 9 of the Act.

1. 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.[1] Section 145 of the Act requires the rules of an organisation to provide for terms of offices.[2] However, current rule 5.1 does not contain any provisions regarding the election procedures or terms of office.

1. The proposed rule 5.1 in:

   ·     new subrule (3) prescribes the eligibility to be nominated for and hold the office of BEC members;

   ·     new subrule (4) provides the terms of office for BEC members are three years; and

   ·     new subrules (5) – (8) set out the procedures for the election of BEC members.

2. I am satisfied that the substance of new subrules (3) – (8) meet the requirements set out in sections 143 and 145 of the Act.

1. The Act in section 146 allows the rules of an organisation to provide for filling casual vacancies. Subsection 146(2), relevantly, states that:

“Rules … must not permit a casual vacancy, or a further casual vacancy, occurring within the term of an office to be filled, otherwise than by an ordinary election, for so much of the unexpired part of the term as exceeds:

(a)       12 months; or

(b)       three quarters of the term of the office;

whichever is the greater.”

1. The insertion of new subrule 5.1(9) provides that elections will be conducted to fill casual vacancies occurring within the first half of the term. I am satisfied that the new subrule 5.1(9) complies with subsection 146(2).

1. The insertion of new subrule 5.1(16) provides that the first election for the BEC members under these election rules will be conducted in 2025.

1. The rest of the alterations are minor and uncontroversial. The alterations to:

   ·     subrule 5.1(5) (renumbered as subrule 5.1(12)) allow more flexible means for meeting and for making decisions between meetings; and

   ·     subrule 5.1(8) (renumbered as subrule 5.1(15)) improve its clarity while the substance remains unchanged.  

1. As a result of the insertions and alterations, subrules within rule 5.1 are renumbered.

1. 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] 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.

[2] Section 145 of the Act provides:

(Printed by authority of the Commonwealth Government Printer

<PR776827>

1) The rules of an organisation must, subject to subsection (2), provide terms of office for officers in the organisation of no longer than 4 years without re-election.

(2) The rules of an organisation, or a branch of an organisation, may provide that a particular term of office is extended for a specified period, where the extension is for the purpose of synchronising elections for offices in the organisation or branch, as the case may be.

(3) The term of an office must not be extended under subsection (2) so that the term exceeds 5 years.

(4) A reference in this section (other than subsection (2)) to the rules of an organisation includes a reference to the rules of a branch of the organisation.