Australian Education Union
[2017] FWCD 3908
•21 AUGUST 2017
| [2017] FWCD 3908 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Australian Education Union
(R2017/139)
| MURRAY FURLONG | MELBOURNE, 21 AUGUST 2017 |
Alteration of other rules of organisation.
On 27 June 2017 the Tasmanian Branch (the Branch) of the Australian Education Union lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to the Tasmanian Federal Branch rules (the Branch rules).
The particulars set out alterations to Branch Rules 5, 7, 12, 13, 14, 15, 19, 22, 23, 25, 32 and 39, insert new Rules 23A and 43 and renumber Rule 45 as Rule 44.
The majority of the alterations are directed towards changing the terms of all offices of the Branch from two years to three years and the term of positions on Sub-branch Committees from one year to three years. New Rule 43, a transitional rule, makes it clear that the change to three year terms is intended to apply to all elections conducted in 2017 and 2018. The alterations also change the method of electing officers to Federal Executive, which I discuss further below, provide that, other than the Branch President and the Branch TAFE President, holders of elected offices under the rules cannot concurrently be employed by the Branch after 1 January 2018, amend the process of convening the Sector Executive, and make other minor technical amendments.
The current Branch rules provide that Federal Executive members from the Branch are elected by and from Branch Councillors assigned to the General Division. New Rule 23A provides that the first office on Federal Executive to which the Branch is entitled will instead be held ex officio by the Branch President, or the Deputy President – DoE Sector if the President is not assigned to the General Division, and that the relevant officer will hold the Federal office for the duration of their three year term. Any additional office on Federal Executive will be filled by an election in accordance with the current process and will hold office for three years. The alterations appear inconsistent with Federal Rule 35(1)(d), which provides that Federal Executive members from the Tasmanian Branch will be “elected biennially by and from” Branch Council. In accordance with Federal Rule 21(3), where a Branch rule is inconsistent with the Federal Rules, the latter prevails to the extent of the inconsistency. I note therefore, that until such time as the Federal Rules are altered, new Rule 23A will not be capable of operation to the extent of its inconsistency with the Federal Rules. This is anticipated by new Rule 43(6), which provides that if amendments to the Federal Rules have not been made at the time elections are conducted for Branch Federal Executive members in 2018, and are made during the term of the office, the Federal Branch Executive members shall be deemed to have a 3 year term.
Alterations dealing with substantially similar subject matter to the alterations currently before me were lodged with the Commission on 27 January 2017. On 14 March 2017 staff of the Commission wrote to the Branch expressing concerns with the substance of the alterations. The Branch subsequently engaged legal representation to redraft the alterations. Ultimately, at a meeting of Branch Council on 19 June 2017 the original alterations were rescinded and replaced with those currently before me.
I turn now to the process of transacting the alterations. In accordance with paragraph 159(1)(c) of the Fair Work (Registered Organisations) Act 2009 (the Act), I am required to be satisfied that the alterations have been made under the rules of the organisation. Branch Rule 26 provides, relevantly:
(2) Proposals to amend or rescind or make new rules may be submitted by the State Manager, Sub-branches, members of the Branch Executive or members of the Branch Council provided such amendments are provided to the State Manager not later than 28 days prior to the meeting at which the amendment is to be proposed.
(3) Notice of proposals to amend, rescind or make new rules must be forwarded by the State Manager to all Branch Councillors at least 14 days prior to the meeting at which the proposals are to be considered.
In her declaration lodged with the notice of alterations, the Branch President Helen Richardson does not disclose whether a proposal to alter the rules was provided to the State Manager 28 days prior to the relevant meeting, nor whether the State Manager forwarded the proposal to Branch Councillors. The declaration states that having considered the draft alterations provided by the Branch’s legal representatives, she caused a draft of the alterations to be sent to all Branch Councillors on 5 June 2017. This is one day short of the “at least 14 days” required by Rule 26(3).[1]
In the context of the alterations previously lodged by the Branch and the subsequent consultative process, it is clear that the substance of the alterations has been contemplated by the Branch since at least late last year. It is evident from Ms Richardson’s declaration in the previous matter that the State Manager sent the original proposal to members of Branch Council on 7 November 2016. In March 2017, the Branch became aware of the Commission’s concerns and subsequently took steps to have the alterations redrafted and resubmitted to Branch Council. Ms Richardson’s declaration indicates that she was in possession of redrafted alterations on 4 May 2017, which she later caused to be circulated to Branch Council.
I therefore accept that the requirements of Rule 26(2) have been satisfied. However, it appears that in sending the notice of the proposal to Branch Councillors on 5 June 2017, an aspect of the organisation’s rule altering procedure was not strictly complied with. The question of whether a registered organisation must strictly comply with its rule altering procedure was considered by Delegate Enright in Master Builders’ Construction and Housing Association of the Australian Capital Territory.[2] Delegate Enright applied the test expressed in Project Blue Sky Inc v Australian Broadcasting Authority[3](Project Blue Sky) and subsequently applied to the rules of unincorporated associations in Re: Australian Principals Federation.[4]
In Project Blue Sky, a majority of the High Court of Australia found that “[a]n act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect”.[5] The majority rejected the approach traditionally taken by the courts in distinguishing between mandatory and directory obligations, finding that “[a] better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid”.[6]
A Full Bench of the Australian Industrial Relations Commission in Re: Australian Principals Federation applied these principles to alleged non-compliance with the rules of an unincorporated association, finding that
the test is whether it was a purpose of the rules that an act done in breach of a rule should be invalid. In determining the question of purpose, regard must be had to the language of the relevant rule and the scope and object of the whole of the rules.[7]
In my view, this reasoning applies equally to the rules of registered organisations. On the facts before me, I find there was a failure to strictly comply with Rule 26(3). However, considering the scope and object of Rule 26 and the rules as a whole, I do not find that this non-compliance invalidated the resolution to alter the rules. The object of the “at least 14 days” stipulated in Rule 26(3) is to ensure that members of Branch Council are given sufficient notice that rule alterations are being proposed and time to consider the proposal before the vote. As noted above, a previous iteration of the alterations was considered by Branch Council in November last year. I do not consider it fatal in this instance that the draft alterations were provided to members of Branch Council one day late.
On the information contained in the notice, as well as the relevant history of the alterations, I am satisfied the alterations have been made under the rules of the organisation in this instance. However, I remind the organisation that in ordinary circumstances the rule altering procedure set out in Rule 26 should be strictly complied with.
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
[1] It is settled law that where the term “at least” is used with respect to a period of notice, both the day of the notice and the day of the meeting are excluded from the calculation. In this case, 14 clear days were required between the notice of the proposal and the meeting. See Re Railway Sleepers Supply Co (1885) 29 Ch D 204.
[2] [2013] FWCD 3600.
[3] (1998) CLR 355.
[4]Appeal by the Australian Education Union against the decision of Vice-President Ross of 27 January 2006; Lawler VP, Kaufman SDP, Smith C; 26 September 2006; PR973525.
[5] (1998) CLR 355 at [92].
[6] Ibid at [93].
[7] PR973525 at [55].
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