Australian Federated Union of Locomotive Employees

[2014] FWCD 3476

[2014] FWCD 3476

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Australian Federated Union of Locomotive Employees
(R2013/484)
MR ENRIGHT	MELBOURNE, 4 JUNE 2014
Alteration of other rules of organisation.

[1] On 11 December 2013 the Australian Federated Union of Locomotive Employees (the organisation) lodged with the Fair Work Commission (the Commission) a notice setting out

particulars of alterations to the rules of the organisation.

[2] The particulars set out alterations to rule 38 of the rules of the organisation. The alterations were made for the purpose of complying with the provisions of the Fair Work (Registered Organisations) Amendment Act 2012 (the Amendment Act). In particular, the alterations provided 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.

[3] Following discussions between the organisation and staff of the Commission, this

notification was withdrawn and replaced by a notice of particulars of alterations on 16
January 2014. Further declarations were lodged on 5 May 2014 and 13 May 2014.

[4] A question arises as to whether the rule alteration process was complied with when transacting the alterations. Rule 12(4) of the organisation’s rules states, in part, ‘A copy of the Minutes of each meeting of Committee of Management including the decision of that meeting and a copy of any decision...shall be forwarded to every member of the Divisional Council within 14 days of...the making of any decision.’ The declaration by Mr Gregory Smith on 13 May 2014 states that the Minutes of the meeting of the Committee of Management along with the copies of the decisions of the Committee were forwarded on 12 May 2014. Therefore, it appears one of the rules associated with the organisation’s rule altering procedure has not been strictly complied with. In accordance with the Act, I am required to be satisfied that the alterations have been made under the rules of the organisation.

[5] As discussed in Master Builders’ Construction and Housing Association of the Australian Capital Territory,i the relevant question to be asked is whether it is intended that non-compliance would result in invalidity. Drawing from Project Blue Skyii and the application of its principles to the rules of an Association in Re: Australian Principles Federation,iii 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 [2014] FWCD 3476

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.

[6] Applying this reasoning to the facts before me, the object of rule 12(4) of the organisation’s rules is that all Divisional Councillors receive the Minutes of the meeting of Committee of Management and any decisions passed by the Committee of Management to allow the Divisional Councillors to ratify the decisions in their own meeting.

[7] I have taken into account the declaration lodged by the State Secretary Mr Gregory Smith on 13 May 2014 in which he stated that all but one of the Divisional Councillors were present and observing the Committee of Management meeting on 13 January 2014. I have also taken into account that immediately after the Committee of Management meeting on 13 January 2014, a quorum of the Divisional Council met and ratified the decision.

[8] In my view and in these circumstances, the failure to comply strictly with rule 12(4) does not invalidate the decision of Divisional Council to alter the rules.

[9] On the information contained in the notice, I am satisfied the alterations have been made under the rules of the organisation. However, I draw to the attention of the organisation that it is incumbent on the organisation to ensure that all Divisional Councillors are forwarded a copy of the Minutes and decisions of the Committee of Management meeting within 14 days in the future.

[10] The rules largely incorporate the requirements of the Amendment Act. However, for

the following reason, I believe the rules will not meet all of the requirements of the
Amendment Act.

[11] As a result of the provisions of the Amendment Act, section 154D of the Fair Work (Registered Organisations) Act 2009 (the RO Act) mandates inclusion of a rule that officers undertake approved training. Subsection 154D(2) of the RO Act requires any such rule to compel the officer to complete the training within 6 months after the person begins to hold the office and that such training covers each of the officer’s financial duties.

[12] Sub rule 38(8) of the altered rules requires all officers whose duties relate to financial management to undertake training, but does not specify that this training must cover each of the officer’s financial duties. Consequently, sub rule 38(8) does not meet all of the requirements of section 154D.

[13] Notwithstanding this omission, the substance of the rule alterations for the purpose of complying with the Amendment Act 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 requirement for training that covers each of the officers’ financial duties will need to be remedied by the organisation as expeditiously as possible in order to ensure full compliance with the provisions of the Amendment Act.

[14] I also draw to the attention of the organisation that to comply with section 154D of the Amendment Act, officer’s must have completed approved financial training that covers each of the officer’s financial duties by 30 June 2014.

[2014] FWCD 3476

[15] On 5 May 2014, Gregory Smith, State Secretary, 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 38(3), the word ‘of’ between the words ‘to’ and ‘the’ is removed.

 In proposed rule 38(5)(c)(v), ‘Relevant non-cash benefit’ is corrected to ‘Relevant

non-cash benefits.’

[16] 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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[2014] FWCD 3476

i [2013] FWCD 3600

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

iii 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.