Australian Hotels Association

[2024] FWCD 1013

[2024] FWCD 1013

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

Australian Hotels Association

(R2023/107)

CHRIS ENRIGHT MELBOURNE, 8 FEBRUARY 2024

Alteration of other rules of organisation.

1. On 20 October 2023 the Queensland Branch (the Branch) of the Australian Hotels Association (the AHA) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules (Branch Rules).

1. The Branch 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 notice and declaration, I am satisfied the alterations have been made under the rules of the organisation.

1. The proposed alterations set out the deletion of all Branch Rules except Branch Rules 4 and 5 and insert proposed new Branch Rules in lieu.  The particulars also set out alterations to Branch Rule 5.

1. According to correspondence from the Branch’s Chief Executive which accompanied the particulars and declaration:

“The AHA (Queensland Branch) has been in existence for many years and the Rules have rarely been updated to reflect the changing nature of either the membership or industry.

The current governance structure outlined in the Rules is cumbersome, reflecting a time when information was passed on slowly and where elections were largely not conducted by the Australian Electoral Commission. The inconsistent office tenures for office bearers at various levels of the Branch has led to significant administrative burdens for both the Association and its members.

The proposed Rules seek to modernise and simplify the governance structure to facilitate more efficient election management whilst still ensuring a democratic voice and allow direct representation for all members regardless of where they operate across Queensland.”

1. It is true that the Branch Rules have not been updated for some time. Alterations were last certified under the legislative precursor to s.159 of the Act in June 2004.

1. It is also a matter of public record that the AHA was involved in litigation associated with the holding of elections for office in the Branch under Part 2 of Chapter 7 of the Act as well as associated record keeping obligations.[1]

1. The proposed alterations conclude an extensive process of consultation and engagement between the Branch and staff of the Commission’s Registered Organisations Services Branch.[2]

1. Although the way the alterations were transacted means many changes have been made, in most cases the essence of the existing rule survived. The alterations largely refine and clarify existing provisions, rather than extensively revising existing rights, duties and obligations. For instance, various alterations:

   ·   correct grammar and capitalisation;

   ·   improve expression;

   ·   adopt contemporary language; or

   ·   clarify the meaning and application of existing provisions.[3]

2. Those alterations make it easier to read, interpret and apply the Branch Rules.

1. Other proposed alterations are uncontroversial. They:

   ·   align the Branch Rules with the requirements of the Act;[4]

   ·   increase the number of signatories necessary to trigger a plebiscite;

   ·   change the manner in which the Branch Rules may be altered;[5]

   ·   replicate recent alterations to the AHA’s eligibility rules that resulted from the recent amalgamation of the AHA and the Accommodation Association of Australia (AAA);[6]

   ·   insert a definitions rule;[7] and

   ·   update the Branch’s registered office address.[8]

1. It is unnecessary to further discuss any of the abovementioned alterations, beyond certifying my opinion under s.159(1) of the Act. I do so below.

1. One group of alterations is substantive. It appears to relate to matters referred to in the Chief Executive’s correspondence. I refer to these proposed alterations as the Zone alterations.

1. Members of the AHA who are attached to the Branch are currently allocated to one of two sub-branches. Those sub-branches are known as the Northern Zone and the Southern Zone (Zones). Under the current Branch Rules the Zones have various functions, powers, duties and—at least ostensibly—a degree of autonomy. The Zones also supply the members of the Branch’s committee of management, the State Board.[9]

1. There is also a separate Accommodation Hotels Division[10] which will assume greater importance as time goes by, due to the influx of members of the former AAA.

1. The Zone alterations flatten the Branch’s structure by abolishing the Zones. Members will instead be allocated to four electorates: the Northern or Southern electorate of the General Division or the Accommodation Division.[11] Under the proposed Branch Rules the electorates serve no other purpose.

1. The Zone alterations also include various consequential alterations to remove references to the Zones, their powers, functions and duties. In addition, proposed changes to the electoral provisions in the Branch Rules have also been effected, to reflect the new electorates and to identify who may nominate for office under the proposed structure.

1. In addition, the proposed Branch Rules increase the terms of office for all Branch offices from two years to three and make consequential changes to the Branch Rule that provides for the filling of casual vacancies.[12]

1. Finally, the proposed Branch Rules include transitional provisions to manage the move to the new structure.[13] All persons holding office under the current rules continue to do so and continue to exercise their current responsibilities and powers until their successors take up office after the next scheduled election.[14]

1. The Zone alterations will impose conditions, obligations or restrictions on members of the AHA who are attached to the Branch. For instance, abolishing the Zones will remove one mechanism through which members can participate in the affairs of the Branch.

1. However, it does not automatically follow that the Zone alterations will impose conditions, obligations or restrictions on members of the AHA who are attached to the Branch contrary to s.142(1)(c) of the Act.

1. The Zone alterations (and the remaining alterations), are in my view directed to facilitating improved governance within the Branch. This is likely to foster:

   ·   effective operation for the Branch;

   ·   its efficient management; and

   ·   improved compliance with the Act which will in turn result in high standards of accountability by the Branch to its members.

1. In the circumstances, noting particularly the governance challenges the Branch has faced in the past, the Zone alterations strike an appropriate balance between the relevant Parliamentary intentions set out in s.5 of the Act.

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

Correction of typographical, clerical or formal errors

1. On 8 February 2024 Branch President, Richard Deery, gave consent under subsection 159(2) of the Act for me 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 Branch Rule 14.5 the words “and AGMs” between the phrases “all State Board meetings” and “shall be ten (10) members”; and

   ·   In proposed Branch Rule 28.4 the expression “, remove the member or proxy from any office held by them,” has been deleted.

DELEGATE OF THE GENERAL MANAGER

[1] See Registered Organisations Commissioner v Australian Hotels Association; O’Callaghan J; 17 September 2019 [2019] FCA 1516.

[2] R2021/125, R2023/49, R2923/79, R2022/130 & R2023/103 refer.

[3] See for instance proposed Branch Rules 1,3, 7, 9, 11, 12, 13, 15, 16, 17, 18, 19, 20, 21, 25, 26 & 28.

[4] See proposed Branch Rules 23 & 26.

[5] See proposed Branch Rule 27.

[6] See the proposed alteration to Branch Rule 5. In a previous matter I determined that replicating a registered organisation’s eligibility rules elsewhere in its rules of does not constitute an alteration of the organisation’s eligibility rules for the purposes of s.158 of the Act – see R2015/191.

[7] See proposed Branch Rule 3A.

[8] See proposed Branch Rule 2.

[9] See current Rule 10(A).

[10] Which will be renamed the Accommodation Division.

[11] See proposed Branch Rule 6.

[12] See proposed Branch Rules 17. 18 & 29.

[13] See proposed Branch Rule 31.

[14] Ibid.

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