Australian Education Union
[2019] FWCD 3755
•3 June 2019
| [2019] FWCD 3755 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Australian Education Union
(R2019/42)
| MURRAY FURLONG | MELBOURNE, 3 June 2019 |
Alteration of other rules of organisation.
On 15 April 2019, the South Australian Branch of the Australian Education Union (the Branch) lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to the rules of the Branch (the Branch Rules).
The particulars set out a single alteration to rule 12 – Standing Committees, Ad Hoc Committees, Consultative Committees and Boards, of the Branch Rules. The effect of the alteration is to establish a new standing committee within the Branch titled “the Reconciliation Committee”.
On the basis of the declaration of Ms Leah York, Branch Secretary, dated 15 April 2019 and lodged with the notice of particulars, I am satisfied that the procedure set out in rule 42 of the Branch Rules was complied with in making the alteration to rule 12 with one exception.
In her declaration, Ms York indicates that the proposal to alter rule 12 was sent to all members of the Branch in a notice titled “e-news” and by publication on the Branch’s website on 5 February 2019. Copies of the notice and publication are annexed to the declaration.
The Branch Council resolved to make the alteration to rule 12 during its meeting of 6 April 2019.
Rule 42(3) of the Branch Rules provides that the Branch Secretary shall publish any proposal to alter the Branch Rules in the “Branch Journal” two months prior to the relevant Branch Council meeting. The Branch Journal is apparently the publication titled “AEU Journal SA” as it appears on the Branch’s website.[1] It appears that no edition of this journal was published in February 2019.
Regarding the meaning of the term “Branch Journal” as it appears in the Branch Rules, I note that rules 6(2)(q) and 20(3)(a) make a distinction between this journal and other forms of publication. The use of capitalisation in the reference to the Branch Journal in the Branch Rules also suggests that it denotes a specific publication.
Given the above, it is apparent that the proposal to alter rule 12 of the Branch Rules was not published in the Branch Journal. Rather, the members of the Branch were informed of the proposed alteration via a notice sent via email and through a separate notice published on its website. Thus, it further appears that rule 42(3) of the Branch Rules was not strictly complied with.
On 22 May 2019, the Commission wrote to Ms York advising her of the above and inviting her to make submissions regarding:
· Whether rule 42(3) of the Branch Rules was complied with in making the alteration; and
· In addition to, or alternatively, that the non-compliance with rule 42(3) should not invalidate the process of making the alteration.
On 23 May 2019, Ms York filed submissions with the Commission.
Recently, in Victorian Chamber of Commerce and Industry [2018] FWCD 7658, I set out the relevant principles to be applied in circumstances where an element of the rule altering procedure contained in an organisation’s rules has not been complied with:
[6] As discussed in Master Builders’ Construction and Housing Association of the Australian Capital Territory it is necessary to consider whether the non-compliance referred is intended to result in invalidity. Does the failure to provide at least 21 days’ notice mean that the alterations have not been made under the rules of the organisation– that is, does non-compliance with rule 41 invalidate the alteration of the rules?
[7] To assess this question it is necessary to consider the decision of the High Court in ProjectBlue Skyand its application by a Full Bench of this Commission in Re: Australian Principals Federation. In the context of the rules of registered organisations these authorities indicate that the issue is not whether an instance of non-compliance has occurred (and as an inevitable consequence the decision to alter the rules is invalidated). Instead, the issue is whether an act which does not comply strictly with the rules has no effect. To determine this, regard must be had to the language, scope and object of the relevant provisions.
In her submissions, Ms York states:
· that the intention behind rule 42(3) was and is to ensure that the membership of the Branch is informed of any proposal to alter the Branch Rules;
· that rule 42(3) was inserted into the Branch Rules at a time that predates the transformation of digital communication across the Branch and the membership;
· that the “e-news” is a publication that is sent directly to all members via their email addresses, and has, for all intents and purposes, become the regular medium for communication with the members of the Branch;
· that the currently unreliable timeframe for delivery of the Branch Journal by mail may now operate to exclude notice of any proposed rule change in the timely manner as contemplated by rule 42(3); and
· that, in her view, the notice to members advising of the proposed alteration via “e-news” and publication on the Branch’s website went above and beyond the intention and purpose of rule 42(3).
On this basis, Ms York submits that strict non-compliance with rule 42(3) should not invalidate the process of the making of the alteration to rule 12.
I accept Ms York’s submissions regarding the evident intention behind rule 42(3) and that communication by the Branch to its members by email has now become the regular medium for sharing important information. This is unremarkable given the advance of electronic and digital technology in recent decades. I also acknowledge that communication via email is a more timely method of sharing important information.
I further note that, unlike most of the other provisions of rule 42, the publishing of proposals to make alterations to the Branch Rules is directed towards informing persons otherwise not directly involved in the procedure prescribed for making alterations to the Branch Rules. Thus, even a total failure to publish such proposals in this manner would be unlikely to directly affect the capacity of the members of the Branch Council in considering the recommendations of a Rules Committee or their ability to consider and vote on motions with regard to such proposals.
The Branch Council itself consists of a great number of divisional delegates together with the Branch Executive Officers. In her declaration, Ms York advises that the current number of Branch Delegates is 111. Therefore, the membership is represented at Branch Council in a wide and comprehensive way.
In the present matter, the notice sent via the “e-news” publication and published on the Branch’s website occurred on 5 February 2019, two months prior to the Branch Council meeting of 6 April 2019 where it was resolved to make the alteration. In the absence of any evidence to the contrary, I accept that the “e-news” publication sent via email has become the standard form of communication with the membership and, therefore, that the intention behind rule 42(3) of the Branch Rules has been fulfilled, namely, to inform the membership of any proposed rule alteration two months prior to the relevant Branch Council meeting.
On the other hand, the fact that the requirement to publish a notice in the Branch Journal is set out in a sub-rule of a broader rule specifically pertaining to the rule altering procedures of the Branch (rule 42) lends some weight to the view that this is a matter of more rigorous compliance. In this regard, I note that although the general distinction between directory and mandatory requirements has fallen out of favour in recent decades,[2] s. 140(2) of the Fair Work (Registered Organisations) Act 2009 still explicitly makes reference to mandatory and directory rules.
On balance, I accept Ms York’s ultimate submission that the strict non-compliance with rule 42(3) of the Branch Rules in the specific circumstances of the present matter should not invalidate the overall process undertaken to make the alterations to rule 12.
On the information contained in the notice and, taking into account the issues set out above, I am satisfied the alterations have been made under the rules of the organisation.
However, given Ms York’s submissions above regarding the method in which the Branch presently communicates with the membership on a regular basis, I urge the Branch to consider making further alterations to rule 42(3) to make it abundantly clear that its requirements may also be fulfilled by the publication or transmission of information by means other than in the Branch Journal.
In my opinion, the alterations comply with and are not contrary to the Fair Work (Registered Organisations) Act 2009, the Fair Work Act 2009, modern awards and enterprise agreements, and are not otherwise contrary to law. I certify accordingly under subsection 159(1) of the Fair Work (Registered Organisations) Act 2009.
DELEGATE OF THE GENERAL MANAGER
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[1] Accessed at For example, see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.
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