Australian Education Union-Tasmania Branch

[2016] FWCD 1218

[2016] FWCD 1218

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Australian Education Union
(R2015/293)
MR ENRIGHT	MELBOURNE, 7 APRIL 2016
Alteration of other rules of organisation.

[1]        On 24 December 2015 the Australian Education Union Tasmanian Branch (the

Branch) lodged with the Fair Work Commission a notice and declaration setting out

particulars of alterations to the rules of the Branch.

[2]        The particulars set out alterations to various rules of the Branch, including removing

transitional rules which are no longer relevant, and renaming educational institutions and

employment awards to bring the rules in line with current conditions.

[3]        A question arises as to whether the rule alteration process was complied with when

transacting the alterations. Rule 26 of the Branch states, in part, that ‘Notice of proposals to

amend, rescind or make new rules must be forwarded by the State Manager to all Branch

Councillors at least 14 days prior to the meeting at which the proposals are to be considered.’

The declaration by then President, Mr Terry Polglase, states that the rule alterations were

made at the Branch Council Meeting held on 20 November 2015. The State Manager

provided notice of the Meeting, including the proposed rule alterations, on 6 November 2015,

only 13 days prior.

[4]        As discussed in Master Builders' Construction and Housing Association of the

1

Australian Capital Territory the relevant question to be asked is whether it is intended that

non-compliance would result in invalidity. Drawing from the High decision of the High Court

2

in Project Blue Sky and the application of its principles to the rules of an Association in

3

Re: Australian Principles 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.
[2016] FWCD 1218

[5]        Applying this reasoning to the facts before me, the object of rule 29(3) of the Branch

rules is that new rules must be made at a meeting and that all members must receive proper

notice of the meeting with the full particulars of the alterations. In this instance the new rules

were made at a meeting that had 13 days notice instead of 14 days. On the basis of the

material before me, all Branch Council members knew the substance of the proposed

alterations in advance of the meeting. In my view, the fact that the Branch Meeting occurred

with 13, and not 14 days notice, does not invalidate the decision of the Branch Council to

alter the rules.

[6]        Therefore, on the information contained in the notice, I am satisfied the alterations

have been made under the rules of the organisation.

[7]        On 7 April 2016, Helen Richardson, Branch President, gave consent, under subsection

159(2) of the Fair Work (Registered Organisations) Act 2009, for the Delegate to make an

amendment to the alterations for the purpose of correcting typographical, clerical or formal

errors. Accordingly the following correction has been made:

 In proposed alterations to rule 20 – TAFE Division Executive, delete (1)(d) and

replace with (2)(d).

[8]        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

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1

[2013] FWCD 3600.

2

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

3

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.