Australian Education Union-Northern Territory Branch

[2014] FWCD 38

[2014] FWCD 38

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Australian Education Union
(R2013/266)
MR ENRIGHT	MELBOURNE, 6 JANUARY 2014
Alteration of other rules of organisation.

[1] On 28 June 2013, the Australian Education Union lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to the rules of the Australian Education Union - Northern Territory Branch (the Branch). On 11 December 2013, the Branch provided further information to the Commission regarding the procedure undertaken to alter the rules.

[2] The particulars provide for, among other alterations, the insertion of new rules 141 to 145 into the rules of the organisation. These 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. In particular, the alterations provide for specified disclosures, the implementation of policies relating to expenditure, the mandatory training of officers with duties that relate to the financial management of the organisation and consequential renumbering of rules.

[3] The particulars also set out alterations to existing rule 27 which were made for the purpose of clarifying casual vacancy rules in relation to particular positions.

The 35 day period for lodgment

[4] Regulation 126(1) of the Fair Work (Registered Organisations) Regulations 2009 (the Regulations) requires an alteration of the rules of a registered organisation to be lodged within 35 days after the alteration is made or within any additional period that the General Manager may allow.

[5] The declaration that accompanied the notifications indicates that the alterations were made by the NT Executive on 10 May 2013. During communications between the staff of the Fair Work Commission and the Branch, the Branch expressed the belief that they had sent the documents to the Commission sometime between 27 and 30 May 2013 and therefore within the specified period. However, there is no record of the Commission receiving the notification and, once this was discovered, the documents were lodged with the Commission without further delay.

[6] Though the Branch was unable to provide evidence of the date of lodgement, it drew

the Commission’s attention to the fact that the notification is dated 27 May 2013. While the
[2014] FWCD 38

possibility exists that the documents were lodged within time, in the event that they were not, regulation 126(1) provides me with the discretion to allow any additional period for lodgement of this notification. The words ‘any additional period’ do not import any constraint on the timing of or on the length of the additional period. On this occasion I have exercised my discretion to allow an additional period of fourteen days, being the period between 35 days after the alterations were made on 10 May 2013 and when the Commission has evidence they were lodged on 28 June 2013.

Casual vacancies

[7] Currently sub rule 27(b) outlines a manner for filling casual vacancies in offices of Treasurer, Vice-President, the Women’s Officer, and Executive Councillor. The existing sub rule provides that should the office become vacant the relevant body shall appoint a person to the office for the reminder of the term. Existing rule 108 provides for a two year term for the offices listed in sub rule 27(b).

[8] Section 146 of the RO Act requires that while the rules of an organisation may provide for the filling of a casual vacancy it cannot do so by a method other than by ordinary election for so much of the unexpired part of the term as exceeds 12 months or three-quarters of the term of the office, whichever is the greater. As such, currently rule 27(b) provides a manner of filling a casual vacancy other than by an ordinary election for a period which is not limited to eighteen months, and therefore contravenes s146 of the RO Act.

[9] The proposed alterations to sub rule 27(b) provide that Vice-President (TAFE) shall be appointed from the members of the TAFE Division and that an Indigenous person shall be appointed to the office of Executive Councillor representing Indigenous teachers and Indigenous education workers.

[10] The contravention of the RO Act as explained in paragraphs [7] and [8] of this decision exists and will continue to exist irrespective of whether or not the alterations to sub- rule are certified. In so far as the proposed alterations set out the pool of persons from which appointments can be made and in so far as the existing sub rule 27(b) is already in contravention of s146 of the RO Act, I am unable to certify this alteration.

Severability

[11] I must now turn my mind to whether or not the alteration to sub-rule 27(b) is severable from the remainder of the alterations. In reaching my decision, I refer to the authority In Re Food Preservers’ Union of Australiai in which the question of severing rules was considered. The majority held that:

....where an organisation has made alterations to a number of its rules, each rule and alteration being completely independent of any other rule or alteration, the Registrar would be free to give his certificate with respect to some of those rule alterations and to refrain from giving his certificate with respect to others. On the other hand, where alterations to rules are dependent upon other alterations to rules, difficulties arise where the certificate is given to some of the alterations and not to others.ii

[2014] FWCD 38

[12]      Their Honours go on to note:

There would need to be a full examination of all the rules to ascertain whether the meaning and effect of the rules to which the certificate had been given had been altered or modified by the fact that some rules or parts of rules have not come into effect.iii

[13] Sub rule 27(b), as discussed above, concerns casual vacancies. With this in mind, I

am satisfied that its removal would not affect those alterations that relate wholly to the
Amendment Act.

[14] However the particulars contain alterations to sub rules 27(a) and 27(c) both of which affect the casual vacancy rule. An examination of sub rules 27(a) and 27(c) demonstrates that they relate to the offices of Branch President and Branch Secretary, further they are fundamentally different to 27(b) in that they both provide for elections when the unexpired portion of the term exceeds 12 months. The alterations, in both cases, seek to limit the term of the election to the unexpired portion of the predecessor’s term. In my opinion, because sub rule 27(b) relates to the pool of people from which appointments are made, the refusal to certify the alterations to this rule does not affect the meaning or effect of the alterations to sub rules 27(a) and 27(c).

[15] As the removal of the alterations to sub rule 27(b) do not affect the meaning or the

effect of the other alterations, they are, in my view, sufficiently independent and therefore
able to be severed from remaining alterations contained in the notice of particulars.

The existing rule 27(b)

[16] As stated above, s146 of the RO Act mandates that rules relating to casual vacancies of more than 12 months or three-quarters of the term (whichever is the greater), must require that they be filled by ordinary election. In my view, current sub rule 27(b) contravenes this requirement. I urge that the Branch remedy this contravention, and I urge that it be remedied as expeditiously as possible.

[17] On the information contained in the notice, and the subsequent communication to the Commission on 11 December 2013, I am satisfied the alterations have been made under the rules of the organisation.

[2014] FWCD 38

[18] In my opinion, with the exception of sub rule 27(b), the alterations comply with and are not contrary to the Fair Work (Registered Organisations) Act 2009 (the RO Act), the Amendment 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.

DELEGATE OF THE GENERAL MANAGER

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i (1988) 79 ALR 138

ii Re Food Preservers’ Union of Australia and Another (1988) 79 ALR 138 per Northrop & Ryan JJ at 145.

iii Ibid at 146.