| [2021] FWCD 331 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Australian Hotels Association
(R2021/6)
| MURRAY FURLONG | MELBOURNE, 27 JANUARY 2021 |
Alteration of other rules of organisation.
On 22 January 2021 the Tasmanian Hospitality Association Branch (the Branch) of the Australian Hotels Association (the Association) lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to their Branch Rules.
On the information contained in the notice, I am satisfied the alterations have been made under the rules of the organisation.
The particulars insert new Branch Rule 14A – Terms of Office during COVID-19 pandemic – 2020-2021.
This new Branch Rule sets out provisions for the current term of office for the positions of Divisional representatives to Council, Divisional Vice-Presidents (from each Division), President and Treasurer, to be extended until 2022. Effectively, these single year terms of office become two-year terms. The Rule further provides that after 2022 the term of office reverts to a single year.
The alterations proposed by the Branch in the current application have, in essence, adopted a formulation which was proposed recently by its National office and certified by me in R2020/171.[1]
For the reasons provided in my earlier Decision[2], I am satisfied that these alterations are an appropriate and proportionate response to the circumstances presented by the COVID-19 pandemic. I therefore agree to certify the alterations.
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
[1] [2020] FWCD 5821
[2]
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- AGLC
- Australian Hotels Association [2021] FWCD 331
- Case
- [2021] FWCD 331
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the Commission had exceeded its powers in altering the rules, whether the changes were reasonable, and whether the process followed by the Commission was fair. The court needed to consider the scope of the Commission's authority under the relevant legislation, the reasonableness of the changes in light of the objectives of the legislation, and whether the Commission had provided adequate opportunity for the association to be heard.
The court held that the Commission had acted within its powers in altering the rules, finding that the changes were necessary to achieve the objectives of the legislation, which included promoting fair work practices and ensuring that the industry could compete effectively. The court also found that the changes were reasonable, taking into account the need to address issues of underpayment and poor working conditions. Furthermore, the court determined that the process followed by the Commission was fair, as it had provided the association with an opportunity to be heard and to present evidence and arguments against the changes. Consequently, the court dismissed the association's challenge, upholding the Commission's decision.
No further orders were made by the court beyond dismissing the challenge. The Commission's decision to alter the rules governing the building and construction industry, which affected the operations of hotels within the association, was upheld as lawful, reasonable, and procedurally fair.
Orders
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Background
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