Australian Hotels Association

[2018] FWCD 151

[2018] FWCD 151

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

Australian Hotels Association

(R2017/264)

MURRAY FURLONG MELBOURNE, 28 FEBRUARY 2018

Alteration of other rules of organisation.

1. On 2 November 2017, the Victorian Branch of the Australian Hotels Association lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to its rules.

1. The particulars set out alterations to rules 2, 3 5 – 7, 9, 10 – 36, delete rules 8 and 37 and insert new rules 1A, 1B, 5A, 7A, 9A, 9B, 27A and 38.

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

The alterations

1. The effects of the alterations are varied. In brief, the alterations amend the name of ‘Residential Hotelkeepers Division’ to the ‘Accommodation Hotels Division’; outline the structure of the Branch; increase the notice period from 7 to 14 days for annual and special general meetings and allow for notice to be provided electronically. Matters relating to elections are also amended. For instance, the alterations allow for electronic communication in the calling of nominations and provide the sequential order of elections for the Executive Committee. The alterations also relate to general housekeeping matters, such as providing for the keeping of minute books pursuant to recent amendments to the Fair Work (Registered Organisations) Act 2009[1] (the Act); updating references to legislation; removing redundant terminology and inserting gender neutral language. However, further consideration is required regarding the alterations which remove the offices of Immediate Past President and Trustee. I will discuss these matters below.

Abolition of offices

1. The Immediate Past President, a Committee of Management member, as provided in current sub rule 13(b), is an office as per section 9 of the Act. The alterations delete all references to the Immediate Past President within the Brach rules, resulting in the abolition of the office. The existing rules pertaining to the office of Immediate Past President are contrary to the Act, as they do not provide for an election to the office.  Subsection 143(1)(a) of the Act requires the rules to provide for the election of the holder of each office within the organisation. Under rule 13(b), the Immediate Past President is not elected. Rather, a person holds office because s/he was elected to a different office at some prior point. Nor do they hold the office of Immediate Past President ex officio, because they do not hold it simultaneously with another office that they were elected to. Correspondence from the Branch President, dated 15 January 2018, confirms that the office of Immediate Past President is currently vacant and has been for a substantial period of time. In the circumstances, alterations to the rules that lends to the abolition of this office are not oppressive, unreasonable or unjust. They do not involve a removal of an officer, and abolishing the office brings the rules into conformity with the Act.

1. The alterations to sub rule 28(c) provide for the abolition of the offices of Trustee from the completion of the term of the Trustees elected in 2016. Additionally, alterations to rule 17 provide that upon expiry of the term of Trustees, the number of the Executive Committee members shall increase from three to six. As the abolition of offices is not midterm, and the duties performed by the Trustees are also a duty of the Council, no matters of concern arise. 

1. On 15 January 2018, Peter Burnett, President, gave consent, under subsection 159(2) of the Fair Work (Registered Organisations) Act 2009, for the Delegate 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 sub rule 9(d), the second sentence beginning with “No un-financial member…” is numbered 9(e);

   ·   The sub rule numbering of 11(c) and (d) is reinstated; and

   ·   In proposed sub rule 38(a), the reference to 37(b) is replaced with 38(b).

Conclusion

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, and are not otherwise contrary to law. I certify accordingly under subsection 159(1) of the Act.

DELEGATE OF THE GENERAL MANAGER

[1] Section 19 of Part 1 of Schedule 2 of the Fair Work (Registered Organisations) Amendment Act 2016; section 141(1)(b)(iia) of the Fair Work (Registered Organisations) Act 2009.

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