Australian Hotels Association

[2020] FWCD 5821

[2020] FWCD 5821

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

Australian Hotels Association

(R2020/171)

MURRAY FURLONG MELBOURNE, 24 DECEMBER 2020

Alteration of other rules of organisation.

1. On 14 October 2020 the Australian Hotels Association (the Association) lodged with the Fair Work Commission a notice and declaration setting out particulars of an alteration to its rules. Further information in support of the application was provided on 19 November 2020.

1. On the information contained in the notice and subsequently provided, I am satisfied the alterations have been made under the rules of the organisation.

1. The particulars insert new rule 44A - ‘Terms of Office during Covid-19 pandemic 2020-2021’.

1. New Rule 44A extends the 2019 term of office for offices in the Association[1] ) from twelve (12) months’ to two (2) years’ duration. The proposed new rule further provides that the terms of office for those relevant offices shall thereafter revert back to one (1) year.

1. In support of the application, the Association submitted:

The purpose of the proposed alterations to the Rules is extend the current term of office for delegates to the National Board, representatives to the National Accommodation Hotels Division and members of the National Executive by a further 12 months at a time where there are indeterminate restrictions on the movement and assembly of persons throughout Australia and the impact that has on the AHA to conduct elections and comply with its rules.[2]

1. In Re: The Australian Industry Group,[3] I dealt with an application to certify alterations to rules that extended the organisation’s current terms of office.[4]

1. As noted in that matter, there is rebuttable presumption that a rule alteration cannot retrospectively increase a term of office once an election has taken place.

1. That presumption can be displaced where:

·   there is an express or implied intention to apply to current terms of office[5] and

·   the rule does not have harsh effects or interfere with vested interests or accrued rights.

1. The rule proposed by the Association clearly articulates an intention to apply to the current terms of office.

1. The alteration does not have harsh effects or interfere with vested interests or accrued rights. Nor does it impose an oppressive, unreasonable or unjust condition upon members or applicants for membership within the meaning of section 142(1)(c) of the Fair Work (Registered Organisations) Act 2009 (RO Act).

1. The extension of the current terms of office is a rational and proportionate response to the circumstances the Association finds itself in. While restrictions on movement, assembly and the customary manner that work is performed are gradually being eased, various limitations remain. Although the Australian Electoral Commission has started conducting industrial elections again, a significant number remain on foot. If the Association was unable to hold elections in 2020 as a consequence of COVID-19 it would be in breach of its rules through no fault of its own. Extending the terms of office, by a relatively short period, is reasonable in the circumstances.

1. Finally, I note that in Beeson v Blayney, Joske J considered that doubling the term of office was a relevant consideration when determining if the change was intended to operate retrospectively.[6] However, that matter is distinguishable from the present one. The rule under consideration in Re: Beeson increased the term of office by three years. The proposed rule only extends the terms of office by twelve months.

1. In my opinion, the alteration complies with and is not contrary to the Act, 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 Act .

DELEGATE OF THE GENERAL MANAGER

[1] For a list of the offices that are affected, see Rules 11, 25 and 42.

[2] See R2020/171: Declaration of Secretary/Treasurer David Basheer of 13 October 2020 at paragraph 4.

[3] [2020] FWCD 3662; 29 July 2020.

[4] See for instance Higgins v McGrane (1961) 5 FLR 82; Spicer CJ, Dunphy, Eggleston JJ at 8), Beeson v Blayney ((1966) 8 FLR 292; Spicer CJ, Joske, Eggleston JJ, per Joske J at 294), Re Mellor; Re Federated Liquor and Allied Industries Employees Union of Australia ((1987) 17 FLR 120; 18 IR 350)

[5] [2020] FWCD 3662 at [13].

[6] ((1966) 8 FLR 292 at 294 – 295

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