Australian Education Union-ACT Branch

[2014] FWCD 6932

[2014] FWCD 6932

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Australian Education Union
(R2014/132)
MR ENRIGHT	MELBOURNE, 6 OCTOBER 2014
Alteration of other rules of organisation.

[1] On 23 May 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.

[2] The particulars set out alterations to rules 28, 29, 31, 34, 36 and 38 of the rules of the Branch. The alterations change the Committee of Management and the financial management of the Branch from the Branch Council to the Branch Executive.

[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 40(b) of the Branch’s rules state that the rules can only be changed if, ‘[t]he proposed rule amendments have been distributed in writing to members of Branch Council at least 7 calendar days (not including day of despatch) prior to the meeting at which they are to be considered.’ The declaration of Mr Glenn Fowler on 23 May 2014 states that the proposed amendments were distributed in writing to members of Branch Council on 1 May 2014, and the meeting where the proposals were considered took place on 3 May 2014. This is only 1 day prior to the meeting of 3 May 2014. 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 6932

[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 40(b) of the Branch’s

rules is that all Branch Councillors receive proper notice of the meeting proposed
amendments prior to the meeting.

[7] I have taken into account that the Branch Councillors received the proposed amendments one day prior to the meeting on 3 May 2014. Furthermore, the resolution passed at this meeting was not a final determination of the proposed amendments, but instead postponed consideration of the proposed amendments until a further Special Meeting of Branch Council on 15 May 2014. In my opinion, the shortened distribution of the proposed amendments to Branch Councillors is procedural and 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 the proposed amendments are distributed to Branch Councillors at least 7 days prior to the meeting at which they are to be considered.

[9] 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.

[10] It would appear that the effect of these alterations is to transfer most, but not all financial management responsibilities from the Branch Council to the Branch Executive. Certain financial management responsibilities appear to continue to reside with the Branch Council, for example determination of entrance fees and subscriptions and the imposition of levies (sub-rule 28(2)). I remind the Branch and members of the Branch Council of their obligation to undertake approved financial management training, (if they have not already done so) in order to comply with section 154D of the Fair Work (Registered Organisations)

Act 2009.

DELEGATE OF THE GENERAL MANAGER

[2014] FWCD 6932

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