Australian Federation of Air Pilots
[2014] FWCD 3071
•16 May 2014
[2014] FWCD 3071
DECISION
| Fair Work (Registered Organisations) Act 2009 | |
| s.159—Alteration of other rules of organisation | |
| Australian Federation of Air Pilots | |
| (R2013/404) | |
| MR ENRIGHT | MELBOURNE, 16 MAY 2014 |
| Alteration of other rules of organisation. |
[1] On 7 October 2013, the Australian Federation of Air Pilots lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to the rules of the Australian Federation of Air Pilots. The particulars set out alterations to Rules 2, 3 and 4 of the rules of the Australian Federation of Air Pilots.
[2] Further information was received from the organisation on 7 May 2014. On the
information contained in the notice, I am satisfied the alterations have been made under the
rules of the organisation.
The date that officers in the Councils take office
[3] The alteration to rule 4.3 proposes to synchronise the time that officers of the Federation take office. Currently, officers in each of the Councils take office ‘at the first Committee meeting after the Annual Convention’. The practical result is a series of meetings in the weeks following the Annual Convention during which each Councils’ officers commence on different dates. The alteration will ensure all officers take up office ‘either at the conclusion of the Annual Convention’ or, if the election has not been finalised, ‘from the date of the election declaration’.
[4] The inevitable consequence of changing the commencement date of these offices is that those persons currently holding these offices will have their terms truncated. Further information was sought from the organisation as to when these first meetings following the Annual Convention occur and dates were provided for meetings in 2012 (the last year officers were elected). In that year, the Annual Convention was scheduled for 4 September 2012 and the follow up meetings occurred between 25 October and 9 November 2012. As such the truncation will be no greater than 2 months in any of the two year terms.
[5] I discussed the issue of truncation recently in my decision concerning the Finance Sector Union of Australia (FSU), including the principle of construction that ‘terms of office’
cannot, prima facie, be changed during the term of office. [1] It is established that, without
[2014] FWCD 3071
clear statements to the contrary, alterations to rules affecting offices take effect from the next
election.[2]
[2]See for example Beeson v Blayney & Ors (1965) 8 FLR 283, Higgins v McGrane & Anor (1961) 5 FLR 82.
[6] It is clear to me that these rule alterations are intended to take effect from the next election and that the practical result will be a truncation of those officers currently holding office. The current circumstances are slightly different to that of the FSU, as these alterations are not required to remedy a problem with the election process identified by the AEC;[3]however they are consistent with prior alterations to synchronise elections[4]and provide
[3]Finance Sector Union of Australia [2014] FWCD 510 at 13 and 16.
[4]Australian Federation of Air Pilots [2012] FWAD 10645.
greater flexibility to the organisation to change its Council structure in accordance with its
rules.[5]
[5]See for instance rule 4.1(1)(b).
[7] The courts have outlined the principles relevant to the truncation of offices including:
An elected office may be abolished during the term of an incumbent provided such
abolition is effected in accordance with the rules and is bona fide;[6]and
[6]Saint v Australia Postal and Telecommunications Union and Others (1976) 13 ALR 649.
The alterations must not have an oppressive, unreasonable or unjust effect on
members or applicants for membership.[7]
[7]Roughan v Australasian Meat Industry Employees’ Union (1992) 36 FCR 536.
[8] I have already stated I believe the decision was made in accordance with the rules. Similarly, as there is nothing before me to indicate differently, I believe that the decision to truncate these offices was made as a bona fide decision of the Annual Convention as it sought to synchronise the process of taking office across all Councils. The bone fide nature of the decision is reinforced by the fact that all Council officers are affected, with no Council or office being singled out, and the officers who are being truncated are members of the rule changing body, the Annual Convention, which requires more than three quarters of all voting members or their proxies present to be quorate.[8] As such, the affected officers are likely to
[8]See rule 7.7.
have received notice, the ability to present input and a vote in relation to the matter.
[9] As to whether the alteration is oppressive, unreasonable or unjust, I believe it is relevant that the offices that are being truncated are not being abolished, merely synchronised. The membership will have the same number of offices representing them at the next election, the timing of the next election will be unaffected and the officers concerned will have been stepping down from their current offices within two months of the Annual Convention. As such, the rule alteration does not appear to limit the democratic functioning or control of the organisation[9]and may contribute to the more efficient management of the organisation.[10]
[9]S 5(3)(d) of the Fair Work (Registered Organisations) Act 2009.
[10]S 5(3)(c) of the Fair Work (Registered Organisations) Act 2009.
[10] Finally I note, given the current wording of rule 4.3, this reduction in office may have
occurred naturally under the rules had the Councils determined to have their meetings within
the first few weeks after the convention.
[2014] FWCD 3071
[11] I therefore believe, due to the minimal effect on the membership and the bona fide
nature of the decision, that the possible two month truncation of offices in order to facilitate
synchronous elections and assumption of office under the rules is capable of certification.
[12] 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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