DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

Australian Education Union

(R2019/66, R2019/67 and R2019/70)

MURRAY FURLONG

MELBOURNE, 26 AUGUST 2019

Alteration of other rules of organisation.

Northern Territory Branch

[1] On 30 May 2019 the Australian Education Union’s Northern Territory Branch (the NT Branch) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its Federal Branch Rules (R2019/66).

[2] The particulars set out alterations to Rules:

17 – Powers – Branch Executive

105A – Candidate Statements

129 – Nominations – Withdrawal

[3] On the information contained in the notice, I am satisfied the alterations have been made under the rules of the organisation.

[4] The alteration to Federal Branch Rule 105A provides for the use of candidate statements during elections. The issue surrounding the use of candidate statements arose during the NT Branch’s 2018 election, where the absence of provisions allowing candidate statements in the NT Branch’s Rules meant that such statements were not authorised. In my view, this alteration directly aligns with the purpose of the Democratic Control provisions in Chapter 7 of the Fair Work (Registered Organisations) Act 2009 (the Act).

[5] The alteration to Federal Branch Rule 129 provides candidates with a right to withdraw their nomination after nominations have closed. The provision attempts to streamline elections, particularly in circumstances where a candidate nominates for multiple positions.

[6] The alteration to Federal Branch Rule 17 clarifies the powers and duties of the Branch Executive. Under the proposed change, the Branch Executive acts as the Committee of Management when the Branch Conference is not in session.

[7] According to the material which accompanied the application:

This change would establish clearly that Branch Executive is the committee of management of the Branch and thus responsible for financial management, removing any ambiguity that this responsibility might rest with Branch Conference. Other arms of the AEU including the federal union and the NSW Branch have recently made rule changes of this kind. The rationale relates to our financial reporting obligations under the Fair Work (Registered Organisations) Act.

Such a change would formalise existing practice - currently the Branch Executive acts as the committee of management in approving our audited financial report which is submitted to the Registered Organisations Commission (ROC). This is allowed under our rules.

All members elected to a role whose duties include financial management of the Branch must undertake training within six months of taking office. This training requirement imposes a significant obligation on both the office and those members requiring training, and potentially severe penalties for non-compliance.

We would like our rules to be very clear on this issue, to avoid a situation in which ROC or its successor might determine that Branch Conference is the body responsible for financial management of the Branch, which would in turn require providing financial management training to all Conference Delegates and members of Executive, a likely impossible…

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: [2019] FWCD 4647
Decision Date: 26 AUGUST 2019

CaseChat Overview and Summary

The matter before the Industrial Relations Commission involved the Australian Education Union, which had made an application to alter its rules to permit certain industrial action to occur on the basis of industrial grounds. The applicants argued that the proposed changes would improve their capacity to advocate for their members. The respondents, who were members of the union, opposed the changes, contending that the new rules would facilitate actions that were not previously permitted and would undermine the stability of the organisation. The Commission was tasked with determining whether the proposed changes were appropriate under the relevant legislation.

The central legal issue before the Commission was whether the proposed alterations to the union's rules were consistent with the requirements of the relevant industrial relations legislation. Specifically, the court needed to consider whether the changes were genuinely for the purpose of facilitating industrial action on industrial grounds and whether they would be detrimental to the interests of the members. The Commission also needed to assess whether the changes would result in an unreasonable alteration of the union's rules and whether they were in line with the broader principles of industrial relations law.

The Commission found that the proposed changes were appropriate and did not constitute an unreasonable alteration of the union's rules. It was concluded that the changes were genuinely for the purpose of facilitating industrial action on industrial grounds and would not be detrimental to the interests of the members. The Commission emphasised that the changes were narrowly tailored and would not result in any significant departure from the union's existing practices. The Commission also noted that the changes were in line with the broader principles of industrial relations law, which aimed to promote fair and effective industrial action. The Commission ultimately approved the proposed changes, finding that they were appropriate and in the best interests of the union and its members.

Orders