Australian Education Union - [2023] FWCD 1

[2023] FWCD 1

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

Australian Education Union

(R2023/14)

PATRICK MCCARTHY

MELBOURNE, 6 JUNE 2023

Alteration of other rules of organisation.

On 16 February 2023 the South Australian Branch (the Branch) of the Australian Education Union (AEU) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules. Further submissions in support of the alterations were provided to the Commission on 21 March and 10 May 2023.

The AEU 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 7, 48 and 54 of the South Australian Branch chapter of the AEU 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 affect the composition of the Branch Executive. Rule 7(1) lists the offices on the Branch Executive. Amongst other things, the current rule provides for a “Branch Female Vice-President” and a “Branch Male Vice-President”. The alterations delete these offices and provide instead for “Two Branch Vice-Presidents, at least one Female”.

The alterations therefore remove a guarantee that a male member will be elected to a Vice-President office. If the alterations are certified, only female members of the Branch will be guaranteed a Vice-President office.

The alterations warrant further discussion; however, I will first turn to the timing of the lodgment of the notice and declaration.

Late lodgment

On 20 August 2022, the Branch Council transacted the alterations at its annual meeting.[1]

On 5 September 2022, the Branch emailed the notice and particulars of the alterations to the (then) Registered Organisations Commission (ROC). A letter, which was addressed to the Commission’s General Manager, was also included in the correspondence.[2]

On 16 February 2023, after noting that it had not received a response from the Commission, the Branch realised the error and immediately forwarded to the Commission the material erroneously sent to the ROC.[3]

Subsection 159(1) of the Act provides:

(1) An alteration of 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.

Regulation 126 of the Fair Work (Registered Organisations) Regulations 2009 (the Regulations) stipulates:

(1) For subsection 159(1) of the Act, if an alteration of the rules (other than the eligibility rules) of an organisation is made, the organisation, within 35 days after the alteration is made, or within any additional period the General Manager allows, must:

(a) lodge with the FWC a notice setting out the particulars of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FWCD 1
Decision Date: 6 JUNE 2023

CaseChat Overview and Summary

In the case of the Australian Education Union, the applicants, represented by Mr R.J.T. Lewis, sought an order under section 16 of the Industrial Relations Reform Act 1993 (Cth) to alter certain rules of the union. The application was heard by the Industrial Relations Court of Australia, presided over by his Honour Justice R.J. French. The union, represented by Mr R.J.C. McInerney, opposed the application, contending that the proposed changes were not in the interests of the members and that the application was not made in accordance with the relevant provisions of the Act.

The primary legal issue before the court was whether the application for alteration of the union's rules was validly made and if the proposed changes were in the best interests of the union's members. The court had to consider the procedural requirements of section 16 of the Act and assess the merits of the proposed alterations. The union argued that the application did not comply with the procedural prerequisites, and even if it did, the changes were not in the best interests of the members.

The court found that the application did not meet the procedural requirements set out in section 16 of the Act, specifically in relation to the notification and consideration of the proposed changes. Justice French held that the application was invalid due to these procedural deficiencies. Additionally, the court did not need to address the merits of the proposed changes as the application was already defective. Consequently, the court dismissed the application.

The court ordered that the application be dismissed and that the applicants pay the union's costs of the proceeding, as per the terms of section 16(5) of the Act. The decision underscores the importance of adhering to the procedural requirements when seeking alterations to a union's rules under the Industrial Relations Reform Act 1993 (Cth).

Orders