Australian Education Union
[2023] FWCD 1
•6 JUNE 2023
| [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 the alteration; and
(b) if the organisation has a web site – publish on its web site a notice that the notice mentioned in paragraph (a) has been lodged.
…
(3) The General Manager may refuse to certify, under subsection 159(1) of the Act, an alteration of the rules unless this regulation is complied with.
Compliance with statutory obligations is essential to the proper functioning of a registered organisation.[4] A failure to comply with the obligations outlined in regulation 126 of the Regulations may lead me, as Delegate of the General Manager,[5] to exercise my discretion to refuse to certify the alterations before me.[6]
The AEU submits that the late lodgment of the notification was an “honest mistake by the Branch and that there was no other intent by the officer who sent the email and who believed this had been sent” to the Commission.[7]
The AEU has apologised for the error and has acknowledged that the timing of the lodgment has caused non-compliance with the Regulations.[8]
The circumstances in the matter before me are similar to a previous matter, in which a different organisation mistakenly emailed the notice and particulars to the ROC instead of the Commission. In that matter, the General Manager allowed an additional period to lodge the alterations in that matter.[9]
Based on the above information, I will allow an additional period to lodge the alterations, until 16 February 2023.
It is worth noting that since the error made by the AEU occurred, the ROC has been abolished and its functions transferred to the Commission. All matters within the Commission’s jurisdiction that concern the governance of registered organisations are lodged via one email address.
Are the alterations contrary to the Act or otherwise contrary to law?
In the present matter a member’s eligibility to nominate for the office of Branch Vice-President is determined by their sex and gender identity. There are three questions which arise in relation to this.
Firstly, do the alterations impose on members of the organisation conditions, obligations or restrictions that are oppressive, unreasonable or unjust when having regard to Parliament’s intention in enacting the Act?[10] If so, then the alterations are contrary to section 142(1)(c) of the Act[11] and therefore cannot be certified.
The General Manager has noted in previous matters[12] that the reservation of places on a committee of management for certain categories of members does not, of itself, infringe or discourage democratic control of a committee of management.[13]
Furthermore, if the alterations:
· impose conditions or restrictions which encourage members of a particular demographic to nominate for office, which in turn, increases member participation in the organisation’s affairs;
· are intended to ensure that the organisation is representative of members of a particular demographic; and
· are intended to increase diversity of persons on bodies which have policy determination and/or management functions,
then those alterations will not be considered to be oppressive, unreasonable or unjust and therefore are not contrary to section 142(1)(c) of the Act.[14]
Secondly, do the alterations introduce rules which discriminate between applicants for membership or members of the organisation on the basis of sex? If so, then the alterations are contrary to section 142(1)(d) of the Act[15] and therefore cannot be certified.
The Act does not define the term “discriminate”,[16] nor does it provide any guidance as to the meaning of the term “discriminate” in section 142(1)(d) of the Act.[17]
In previous alterations which address this question, the General Manager has adopted the view that the relevant question is not merely whether the rule treats members differently, but whether that different treatment is relevant and appropriate to the object to be attained.[18] In Street v Queensland Bar Association,[19] Gaudron J held that differential treatment of a group does not render the treatment discriminatory towards the relevant group.
Thirdly, do the alterations contravene Commonwealth anti-discrimination legislation? If so, then the alterations are contrary to law within the meaning of section 159(1)(b) of the Act and cannot be certified.
The Sex Discrimination Act 1984 (Cth) (SDA) is apposite.
Section 19(2) of the SDA provides:
“It is unlawful for a registered organisation, the committee of management of a registered organisation or a member of the committee of management of a registered organisation to discriminate against a person who is a member of the registered organisation, on the ground of the member’s sex, sexual orientation, gender identity, intersex status, martial or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities:
(a) by denying the member access, or limiting the member’s access, to any benefit provided by the organisation;
(b) by depriving the member of membership or varying the terms of membership; or
(c) by subjecting the member to any other detriment.”
However, section 7D of the SDA provides:
“(1) A person may take special measures for the purpose of achieving substantive equality between:
(a) men and women; or
…
(ab) people who have different gender identities; or
(ac) people who are of intersex status and people who are not…”
In its further submissions, the AEU outlines the historical context of the offices of Vice-President. The AEU notes that the Branch has maintained a Male Vice-President and Female Vice-President office since the late 1950s in order to “address the lack of representation and exclusion of female-identifying members, despite being a female-led profession”.[20]
The AEU contends that the rationale of the alterations is “to enshrine that within the executive powers of the organisation, there is at least one female representative in leadership, to further encourage our female-identifying members to participate in AEU executive matters”.[21] This, the AEU contends, is aligned with one of the objects of the Act, being to encourage members to participate in the affairs of organisations to which they belong.[22]
The AEU states that the alterations would not “preclude male-identifying members to be elected as Vice-President, but rather provide further opportunities for our genderfluid, non-binary members” who are currently not eligible to nominate for the two Vice-President offices.[23]
In relation to the SDA, the AEU contends that the alteration does not deny members access to any benefits “as one open, non-gender assigned Vice-President position would still be available for all genders, including male” members of the Branch.[24] The AEU further submits that the alterations will “not impact the everyday functions, but rather create space in branch leadership”.[25]
The AEU asserts that the alterations constitute “a special measure undertaken to ensure that within our branch’s leadership structure, there is at least one female-identifying member that maintains a leadership position” in the Branch.[26] This approach, according to the AEU, is intended to ensure that substantive equality “is maintained for the rest of the life” of the Branch.[27]
The union submits that in its capacity as a registered organisation it has intended to ensure that its rules align with its Gender Equity Plan to confirm that there is one female Vice-President in the Branch. The AEU states that having a female Vice-President officer in the Branch’s governing body will “ensure that the branch’s leadership composition is representative of its overall membership”.[28]
I accept the AEU’s submissions. In particular:
· The alterations are not oppressive, unreasonable or unjust.
· The differential treatment at issue is not sufficient to render the rule discriminatory. The differential treatment envisaged by the alterations is relevant and appropriate to the object to be attained.
· The alterations do not contravene the SDA. The alterations are intended to maintain substantive equality within the Branch’s governing body.
Therefore, 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] R2023/14.
[2] Australian Education Union, ‘Re: Australian Education Union (SA Branch) – Application for Alteration to Australian Education Federal Branch (SA) Rules’, Submission in Australian Education Union [2023] FWCG 23, 21 March 2023, paragraph 5.
[3] Ibid, paragraph 6.
[4] Master Grocers of Australia Limited [2014] FWCD 1647 at [5].
[5] Fair Work (Registered Organisations) Act 2009, s.343.
[6] Fair Work (Registered Organisations) Regulations 2009 reg 126(3).
[7] Ibid, paragraph 8.
[8] Ibid, paragraph 7.
[9] See National Tertiary Education Industry Union [2022] FWCG 24.
[10] In considering whether the rules impose conditions, obligations or restrictions that are oppressive, unreasonable or unjust, I have taken into account Parliament’s intention in enacting the RO Act, as set out in section 5. Relevantly, the RO Act is designed to:
(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…
[11] Section 142(1)(c) of the Act provides that rules:
…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;
[12] See Construction, Forestry, Maritime, Mining and Energy Union [2022] FWCG 54.
[13] Pillar v Building Workers Industrial Union of Australia [1994] AILR 249.
[14] Re: The Association of Professional Engineers, Scientists and Managers, Australia[2017] FWCD 4034.
[15] Section 142(1)(d) of the Act provides that rules:
…must not discriminate between applicants for membership, or members, of the organisation on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
[16] Ibid.
[17] Ibid.
[18] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2018] FWCD 6837.
[19] (1989) 168 CLR 461.
[20] Australian Education Union, ‘Re: Application for Alteration to Australian Education Federal Branch (SA) Rules’, Submission in Australian Education Union [2023] FWCG 23, 10 May 2023, p.1.
[21] Ibid.
[22] Fair Work (Registered Organisations) Act 2009, section 5(3)(b).
[23] Ibid.
[24] Ibid, p.2
[25] Ibid.
[26] Ibid.
[27] Ibid.
[28] Ibid.
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