Australian Federation of Air Pilots
[2018] FWCD 362
•6 MARCH 2018
| [2018] FWCD 362 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Australian Federation of Air Pilots
(R2017/271)
| MURRAY FURLONG | MELBOURNE, 6 MARCH 2018 |
Alteration of other rules of organisation.
On 9 November 2017, the Australian Federation of Air Pilots (AFAP) lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to the Rules.
The particulars set out alterations to Rules 4, 7 and 12.
In correspondence dated 12 January 2018, the AFAP requested that I defer consideration of the proposed alteration to Rule 4.1.1(a) which would establish a Qantas Mainline Council. The AFAP’s reasons for this is, on 23 November 2017, the AFAP lodged an application for consent for alteration to the organisation’s eligibility rules under s. 158 of the Fair Work (Registered Organisations) Act 2009 (the Act). Establishing a Qantas Mainline Council requires alterations to the AFAP’s eligibility rules.
I must now turn my mind to whether the alterations to Rules 4.6 (a), 7 and 12, are severable from alterations to Rule 4.1.1(a). In reaching my decision, I refer to the case In Re Food Preservers’ Union of Australia,[1] where the question of severing rules was considered. In their decision, 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.[2]
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 and had been altered or modified by the fact that some rules have not come into effect.[3]
The question of severability turns upon whether or not the alterations to Rules 4.6 (a), 7 and 12 can be regarded as completely independent of the alterations to rule 4.1.1(a). I need to be satisfied that removing those alterations would not affect the meaning or effect of the other alterations.
It is my opinion that the alteration to Rule 4.6(a) which allows the Committee of a Council to convene an Annual Ordinary General Meeting at its discretion; the alteration to Rule 7 which deals with proxies at Conventions and the form of nominations for Federal Office Bearers in the Federation; and the alterations to Rule 12 which deal with nominations for Council Committee Members and Federal Office Bearers have no effect on the meaning of the alterations to Rule 4.1.1(a).
On the information contained in the notice, I am satisfied the alterations to Rules 4.6 (a), 7 and 12 have been made under the rules of the organisation.
In my opinion, the alterations to Rules 4.6.(a), 7 and 12 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.
I will consider certification of the alteration to Rule 4.1.1(a) after the s.158 application has been determined.
DELEGATE OF THE GENERAL MANAGER
[1] (1988) 79 ALR 138.
[2] Re Food Preservers’ Union of Australia and Another (1988) 79 ALR 138 per Northrop & Ryan JJ at 145.
[3] Ibid at 145.
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