Australian Education Union-Northern Territory Branch

[2015] FWCD 4672

[2015] FWCD 4672

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Australian Education Union
(R2015/124)
MR ENRIGHT	MELBOURNE, 14 AUGUST 2015
Alteration of other rules of organisation.

[1]        On 4 June 2015 the Northern 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 organisation.

[2]        The particulars set out alterations to Rule 27 of the rules of the Branch. The alterations

amend the casual vacancy provisions of the Branch.

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[3] This notification is in response to my decision of 6 January 2014 (R2013/266 ) where

I drew to the attention of the Branch that Rule 27(b) of the Branch’s rules in its current form

contravenes the requirements of section 146 of the Fair Work (Registered Organisations) Act

(2009) (the RO Act). I urged the Branch to remedy this contravention as expeditiously as

possible.

[4]        Discussions between the Branch and Commission staff led to information being

sought in relation to the Branch’s rule altering process. As a result of these discussions, a

submission was lodged with the declaration on 4 June 2015 and further information was

provided on 21 July 2015 and 13 August 2015.

[5]        A question arises as to whether the rule altering process was complied with when

transacting the alterations. Rules 11(b) and (c) of the Branch’s rules state the following:

“11 - MEETINGS OF BRANCH CONFERENCE

...

(b) The commencing date of Branch Conference shall be determined by Branch Executive

not less than 3 months before such date and the Branch Secretary shall notify in

writing each Branch Executive member and each sub-Branch within 7 days of such

determination and shall cause notification of such date to be inserted in the next issue

of the Branch Newsletter.

[2015] FWCD 4672

(c) The Branch Secretary shall also cause an advertisement to be inserted in local

newspapers throughout the Northern Territory not less than 14 days before the

commencing date of Branch Conference setting out the date, time and place of the

Conference.”

[6]        The declaration of Branch Secretary, Anita Jonsberg, stated that the irregularly

published branch newsletter ‘The Territory Educator’ has not been published this year.

Therefore a notice has not been placed in the branch journal in accordance with Rule 11(b).

In the declaration, she also stated that a notice of the date, time and place of the Branch

Conference was placed in the NT News and the Centralian Advocate on Monday 27 April. I

note this is four days’ notice of the Branch Conference instead of the required 14 days.

Therefore, it appears these rules associated with the Branch’s rule altering procedure have

not been strictly complied with.

[7]        The Branch’s submission addressed the Branch’s failure to comply with these notice

requirements. The submission highlighted the distinction between mandatory and directory

rules; however I am not of the opinion that this distinction is the relevant issue. As discussed

in Master Builders’ Construction and Housing Association of the Australian Capital

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Territory, the relevant question to be asked is whether it is intended that non-compliance

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would result in invalidity. Drawing from Project Blue Sky and the application of its

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principles to the rules of an Association in Re: Australian Principals Federation, 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.

[8]        Applying these principles to the facts before me, the objects of rules 11(b) and (c) of

the Branch’s rules is that all members of the Branch must receive proper notice of the Annual

Branch Conference.

[9]        I have taken into account that all members of the Branch were given notice by email

on 1 February 2015, three months before the commencement of the Annual Branch

Conference. I have also taken into account that the alterations are made in response to

remedying a breach of the RO Act. On the basis of the material before me, all members of the

Branch had sufficient notice of the Annual Branch Conference in advance of the meeting. In

my opinion, the failure to strictly comply in this instance with rules 11(b) and (c) is

procedural and does not invalidate the decision of the Branch Conference.

[10]      However, should the Branch believe that it is unable to strictly comply with its rule

altering procedure, I strongly urge the Branch to alter its rules as expeditiously as possible to

prevent future non-compliant rule alterations. In doing so, the Branch must conform with and

follow the provisions of its rule altering process.

[11]      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.

[2015] FWCD 4672

DELEGATE OF THE GENERAL MANAGER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR569261>

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[2014] FWCD 38

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[2013] FWCD 3600

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

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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.