Australian Higher Education Industrial Association

[2023] FWCD 35

[2023] FWCD 35

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

Australian Higher Education Industrial Association

(R2023/130)

CHRIS ENRIGHT MELBOURNE, 21 DECEMBER 2023

Alteration of other rules of organisation.

1. On 4 December 2023 the Australian Higher Education Industrial Association (the Association) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules. Further correspondence in support of the alterations were provided on 12 December 2023.

1. The Association seeks certification of the alterations under s.159 of the Fair Work (Registered Organisations) Act 2009 (the Act).

1. On the information contained in the lodgement material and the correspondence dated 12 December 2023, I am satisfied that the alterations have been made under the rules of the Association.

1. The particulars set out alterations to

   ·     Rule 14 – Officers of the Association;

   ·     Rule 17 – Removal of Officers;

   ·     Rule 22 – Proceedings at General Meetings;

   · Rule 23 – Finance.

1. The particulars additionally set out insertion of a new Rule 36 – Use of Technology.

1. The proposed alterations to Rule 23 change the Association’s financial year. Currently, the financial year commences on 1 January each year and concludes on 31 December that year. Under the proposed alterations the financial year will instead commence on 1 July each year and conclude on 30 June the year after.

1. If the current alterations are not certified on or before 31 December 2023, the transition to the new financial year will be delayed by twelve months. In the circumstances, it would be prudent to expedite consideration of the alterations to Rule 23. I therefore intend to deal with the alterations in two tranches, so long as the alterations to Rule 23 are severable from remaining alterations.

1. Having regard to the majority judgment in Re Food Preservers’ Union of Australia,[1] it is open to me to consider Rule 23—in isolation—at this juncture. The alteration to Rule 23 is severable from the remaining alterations. It is completely independent of any other alteration. Certification of the alteration to Rule 23 does not affect the meaning or effect of the other alterations.

1. As a consequence, this decision only deals with:

• whether the alterations were made under the rules of the organisation; and

• the substance of proposed alterations to Rule 23

1. The substance of the remaining alterations will be considered in due course.

1. In my opinion the alterations to Rule 23 comply with and are not contrary the Act, the Fair Work Act 2009 (Cth), modern awards or enterprise agreements, and are not otherwise contrary to law and were made under the rules of the Association. I certify accordingly under subsection 159(1) of the Act.

DELEGATE OF THE GENERAL MANAGER

[1] Re Food Preservers’ Union of Australia and Another (1988) 79 ALR 138 per Northrop & Ryan JJ.

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