Australian Education Union-ACT Branch

[2014] FWCD 6935

[2014] FWCD 6935

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Australian Education Union
(R2014/188)
MR ENRIGHT	MELBOURNE, 6 OCTOBER 2014
Alteration of other rules of organisation.

[1] On 22 July 2014 the Australian Capital Territory Branch of the Australian Education Union (the Branch) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to the rules of the Branch. The alterations were made for the purpose of complying with provisions of the Fair Work (Registered Organisations) Amendment Act 2012 (the Amendment Act) regarding the rules of registered organisations.

[2] The particulars set out alterations to rule 34 of the rules of the Branch. In particular,

the alterations provide for the disclosure by the Branch of officers’ relevant remuneration and
non-cash benefits as well as payments made to related parties.

[3] Further information was sought from the Branch regarding the rule altering process and on 24 September 2014 a supplementary declaration was received by the Commission.

[4] A question arises as to whether the rule alteration process was complied with when transacting the alterations. Rule 19(B) of the Branch’s rules state Councillors shall be distributed written notice of meetings and copies of agenda at least 7 calendar days beforehand (not including the day of despatch).’ It appears from the declarations of Mr Glenn Fowler on 22 July 2014 and 24 September 2014 that Branch Councillors were given notice of the Branch Council meeting of 21 June 2014 on 18 June 2014, along with copies of the Agenda and papers. Therefore, it appears one of the rules associated with the Branch’s rule altering procedure has not been strictly complied with. In accordance with the Act, I am required to be satisfied that the alterations have been made under the rules of the organisation.

[5] As discussed in Master Builders’ Construction and Housing Association of the Australian Capital Territory,[1]the relevant question to be asked is whether it is intended that non-compliance would result in invalidity. Drawing from Project Blue Sky[2]and the application of its principles to the rules of an Association in Re: Australian Principals Federation,[3]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). 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.

[2014] FWCD 6935

[1][2013] FWCD 3600

[2]Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28.

[3]Appeal by the Australian Education Union against the decision of Vice-President Ross of 27 January 2006; Lawler VP,

[6] Applying this reasoning to the facts before me, the object of rule 19(B) of the Branch’s rules is that all Branch Councillors receive proper notice of the meeting.

[7] I have taken into account that the Branch Councillors who voted on the proposed amendments at the meeting were given 2 calendar days’ notice of the meeting of 21 June 2014, rather than the required 7 calendar days. However, I have also taken into account that the proposed amendments were previously circulated to Branch Councillors on 14 November 2013 and 20 March 2014 respectively. In my opinion, the shortened notice of the meeting given to Branch Councillors is procedural and in all of the circumstances, does not invalidate the decision of the Branch Council.

[8] On the information contained in the notice, I am satisfied the alterations have been made under the rules of the Branch. However, I draw to the attention of the Branch that it is incumbent on the Branch in the future to ensure that all Branch Councillors are given notice of the Branch Council Meeting at least 7 days prior to such meeting.

[9] On 1 October 2014, Mr Glenn Fowler, Branch Secretary, gave consent, under subsection 159(2) of the Fair Work (Registered Organisations) Act 2009, for the Delegate to make various amendments to the alterations for the purpose of correcting typographical, clerical or formal errors. Accordingly the following corrections have been made:

 34(E): ‘34(E)(2)’ changed to read ‘34(E)(3)’.

[10] 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

Printed by authority of the Commonwealth Government Printer

[2014] FWCD 6935

<Price code A, PR556162>

Kaufman SDP, Smith C; 26 September 2006; PR973525.