Australian Education Union-New South Wales Branch

[2014] FWCD 1912

[2014] FWCD 1912

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Australian Education Union
(R2014/36)
MR ENRIGHT	MELBOURNE, 26 MARCH 2014
Alteration of other rules of organisation.

[1] On 6 March 2014 the New South Wales Branch of Australian Education Union lodged

with the Fair Work Commission a notice and declaration setting out particulars of alterations
to the New South Wales Federal Branch Rules.

[2]        The particulars set out alterations to New South Wales Federal Branch Rule 6.

[3]        New South Wales Federal Branch Rule 4(2) states, in part:

“No addition to or amendment or rescission of any Federal Branch Rule or any Branch Rule shall be made unless ... each member of Branch Council has been given fourteen days written notice by the Branch Secretary by pre- paid registered post that such new Rule amendment or rescission is to be considered by Branch Council.”

[4] In this instance, the Branch President convened the special meeting of Branch Council

− a role reserved for him under Federal Branch Rule 1(3) − and gave notice of the rule
alteration under Federal Branch Rule 4(2).[1]

[1]See paragraph 2(c) of the declaration given by the branch secretary in support of the application as well as Attachment 3

[5] Therefore, one of the rules associated with the organisation’s rule altering procedure has not been strictly complied with. In accordance with the Fair Work (Registered

Organisations) Act 2009 (the RO Act), I am required to be satisfied that the alterations have

been made under the rules of the organisation.

[6]        In this regard, I have previously indicated 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). 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.”[2]

[2014] FWCD 1912

[7] Although one aspect of Federal Branch Rule 4(2) was not followed, the notice was given by registered post,[3]the requisite period of notice was provided[4]and the notice was

received by the members of the Branch Council[5]. Further, I note that there is nothing before

me to suggest that any Branch Councillor took issue with the manner in which the notice was given. In the circumstances, the procedural failure associated with the giving of the notice does not invalidate the meeting at which the rule alteration was transacted.

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

[9]        In my opinion, the alterations comply with and are not contrary to the RO Act, 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 RO Act.

[2][2013] FWCD 10250 at paragraph [4]. See also, more generally, [2013] FWCD 3600 at paragraphs [10] - [25].

[3]See paragraph 2(c) of the declaration given by the branch secretary in support of the application as well as Attachment 3

[4]Ibid.

[5]See Attachments 3 and 5 of the declaration given by the branch secretary in support of the application.

[10] I note one point about new Federal Branch Rule 6(2A). That Federal Branch Rule is directed to the possible synchronisation of elections for certain offices within the Branch and the equivalent offices in the associated State Union. It allows the terms of office of the next elected Branch Officers and Branch Executive members to be varied if certain preconditions are met. As a result, the synchronised Branch/State Union election timetable may not align with the biennial election schedule set out in Federal Branch Rule 6(2). It is not clear whether the Branch intends such a result to continue over time. The Branch should therefore make its intention in that regard plain on the face of the rules. I recommend they do so if rule alterations contemplated by new Federal Branch Federal Branch Rule 6(2A) are ultimately transacted.

DELEGATE OF THE GENERAL MANAGER

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[2014] FWCD 1912

thereto.

thereto.