Australian Entertainment Industry Association; Australian Entertainment Industry Association

[2014] FWCD 904

[2014] FWCD 904

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Australian Entertainment Industry Association
(R2013/211 and R2013/58)
MR ENRIGHT	MELBOURNE, 6 FEBRUARY 2014
Alteration of other rules of organisation.

[1] On 11 February 2013 and 2 April 2013, the Australian Entertainment Industry Association (‘the organisation’) lodged with the Fair Work Commission (‘the Commission’) a notice and declaration setting out particulars of alterations to the rules of the organisation (R2013/211). On 30 January 2014, the organisation lodged a supplementary declaration providing further information regarding the procedure undertaken to alter the rules.

[2] The particulars of the notice set out alterations to rules 21 and 29 of the rules of the organisation (the first alterations). The purpose of the alterations was to allow for the communication of motions and responses of the Executive Council to be conducted by e-mail, and to allow for notice of the Annual General Meeting to be provided by e-mail.

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

[4]        Regulation 126(1) of the Fair Work (Registered Organisations) Regulations 2009

(‘the RO 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. The rule alterations were passed in accordance with the rules of the organisation by a Special General Meeting that was held on 30 November 2012. A notification was lodged with the Commission on 11 February 2013 but was deficient. A further notification and a declaration were lodged on 2 April 2013.

[5] Pursuant to regulation 126(1) of the RO Regulations, I have, on this occasion, used my

discretion and granted an extension of time for the lodgement of the particulars, including the
required declaration until 2 April 2013.

[6] On 24 May 2013, the organisation lodged with the Commission a notice and declaration setting out particulars of further alterations to the rules of the organisation (R2013/58). On 30 January 2014, the organisation lodged with the Commission a supplementary declaration providing further information regarding the procedure undertaken to alter the rules. The particulars provide for the insertion of new rules 40, 41, 42, 43 and 44 into the rules of the organisation (the second alterations). The 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

[2014] FWCD 904

particular, the alterations provide for specified disclosures, the implementation of policies relating to expenditure and the mandatory training of officers with duties that relate to the financial management of the organisation.

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

[8] The rule alterations were passed in accordance with the rules of the organisation by a Special General Meeting that was held on 24 May 2013.

[9] As stated in paragraph [4], regulation 126(1) of the RO 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. The notification was lodged with the Commission on 24 May 2013.

[10] Under section 36(1) of the Acts Interpretation Act 1901, a period of time expressed to begin after a specified day is not taken to include the specified day. As such it would seem that the words ‘within 35 days after the alteration is made’ in regulation 126(1) mean that the

day the alteration was made is not included. This interpretation was upheld in Moon v JLG Industries (Aust)i which considered the words ‘within 14 days after’ in section 371 of the Fair

Work Act 2009. Lucev FM determined that the day of the relevant act was not included in the

period ‘within 14 days after’ii. I am satisfied that for the purpose of interpreting regulation

126(1) the day the alteration is made is not included ‘within 35 days after the alteration is made’. In this case the 35 day period therefore began on 25 May 2013 and consequently the notification lodged on 24 May 2013 was premature.

[11] However 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; it can be “any”, including the day that the alteration is made.

[12] By lodging this notification on 24 May 2013 the organisation acted promptly to ensure certification of the alterations. Alterations to the rules of the organisation should not be frustrated as a result of the organisation’s promptness. On this occasion I have exercised my discretion to allow an additional period of one day prior to the 35 day period, that being the date the alterations were made (24 May 2013).

Omissions within the alterations for the purpose of the Amendment Act

[13] As stated above, the second alterations are for the purpose of the complying with the provisions of the Amendment Act. The rules largely incorporate the requirements of the Amendment Act. However, for the following reasons, I believe the rules will not meet all of the requirements of the Fair Work (Registered Organisations) Act 2009 (‘the RO Act’).

[14] Section 148A(1)(a)(ii) of the RO Act mandates that the rules of an organisation must require the disclosure, by each officer of the organisation, to the organisation of any remuneration paid to the officer because the officer is a member of a Board, if the officer was nominated for the position of member of the Board by, among others, a peak council. As sub rule 41(A)(a)(i) omits a reference to peak council, the rule does not meet all of the requirements of section 148A(1)(a)(ii).

[2014] FWCD 904

[15] Notwithstanding this omission, the substance of the rule alterations does comply with the statutory requirements. Although a further alteration is needed this does not prevent the certification of the alterations that have been made. However, the omission of the reference to peak council will need to be amended by the organisation as expeditiously as possible in order to ensure full compliance with the provisions of the RO Act.

Typographical, clerical or formal errors

[16] On 30 January 2014, Andrew Kay, the President, gave consent, under subsection 159(2) of the Fair Work (Registered Organisations) Act 2009, for the Delegate to make various amendments to the alterations for the purpose of correcting typographical, clerical or formal errors. Accordingly the following corrections have been made:

	In proposed rule 41(A)(a)(ii) the unnecessary indentation of ‘Executive Council’ is removed;
	In proposed rule 41(C)(b)(ii) the unnecessary indentation of ‘non-cash benefits’ is removed; and

 In proposed rule 42(A) ‘Each officer of an Association’ is replaced with ‘Each

officer of the Association’.

[17] In my opinion, the alterations comply with and are not contrary to 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 Moon v JLG Industries (Aust) [2011] FMCA 343

ii Ibid at paragraphs 26-30