Australian Hotels Association
[2024] FWCD 1057
•11 NOVEMBER 2024
| [2024] FWCD 1057 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Australian Hotels Association
(R2024/159)
| PATRICK COYLE | ADELAIDE, 11 NOVEMBER 2024 |
Alteration of other rules of organisation.
On 22 October 2024 the South Australian Branch of the Australian Hotels Association (the Branch) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to the rules of the South Australian Branch. Further information in support of the alterations was provided on 23 October 2024 and 25 October 2024.
The Branch seeks certification of the alterations under section 159 of the Fair Work (Registered Organisations) Act 2009 (the Act).
On the information contained in the notice and declaration, I am satisfied the alterations have been made under the rules of the organisation.
The particulars set out alterations to Branch Rules 17 and 51.
Alterations to Branch Council
The Branch Council is the Committee of Management of the Branch, which consists of 28 representatives elected by and from financial members of nineteen districts and two divisions.[1]
Under the current rules, the Package Liquor Stores Division and Accommodation Hotels Division collectively form one electorate and elect one representative.
The alterations to Subrule 17(b) allow each of the two divisions to separately elect its own representative to the Branch Council. As such, the number of representatives in the Branch Council is increased from 28 to 29.
An organisation has the right to mould its internal structures as it sees fit, provided it complies with the requirements of the legislation.[2] A relevant requirement of the Act is that rules must not impose conditions, obligations or restrictions that are, having regard to Parliament’s intentions and the objects of the Act, oppressive, unreasonable or unjust.[3] When considering whether conditions imposed on members are oppressive, unreasonable or unjust, regard must be had, among other things, to the democratic functioning and control of the organisation.[4]
I note that the two divisions cover members in two distinct areas. The Accommodation Hotels Division covers members of the Australian Hotels Association in this State, having bedrooms available to the public.[5] The Package Liquor Stores Division covers members who hold, or who will transition to, a packaged liquor sales licence in respect of their licensed premises and who conduct a retail liquor store.[6]
In my view, the alterations provide the opportunity for the division members to be properly represented in the governing body of the Branch. At the same time, expanding the size of Branch Council by one would not alter the fact that most representatives are still from the districts. The current level of representation is not materially changed. Therefore, I am satisfied that the proposed alterations do not impose oppressive, unreasonable or unjust conditions, obligations or restrictions.
Following the changes to Subrule 17(b), the office of the current division representative is abolished. The current division representative was elected in 2023,[7] and they have a term of three years.[8]
There is a rebuttable presumption that a rule alteration cannot retrospectively change a term of office once an election has taken place. As Joske J stated in Beeson v Blayney:[9]
“In any event, in my view there is a prima facie principle of construction that unless it appears expressly or by implication in rules as amended that they are intended in their amended form to apply to past matters or events, including matters commenced before but not completed at the time of the amendment, the amendments do not apply to the past or uncompleted matters.”[10]
However, this presumption can be rebutted where:
· there is an express or implied intention to apply the alteration to current terms of office;[11] and
· the rule does not have harsh effects or interfere with vested interests or accrued rights.[12]
I note that the abolition of the office of the shared division representative is an inevitable consequence of assigning each division a representative of their own. The effect of the amendment is that two officers will be elected from the membership of the two respective divisions, replacing the office of the incumbent elected in 2023 from the same membership. The alternative proposition, which cannot be accepted, would result in those divisions being overrepresented on the Branch Council.
I further note that the incumbent division representative voted in favour of the alterations in the Branch Council meeting. This indicates their support for the abolition of their office and suggests that the alteration does not have harsh effects or interfere with vested interests or accrued rights.
Therefore, I am satisfied that the decision was bona fide and the presumption against retrospective operation is rebutted.
The Branch confirmed that the upcoming election will commence in February 2025.[13] As the new offices will be filled at the upcoming election, I am satisfied that the alterations are not contrary to section 143(1)(a) of the Act.
Minor alterations
Alterations have been made to Subrules 17(c) and 17(d) to correct grammar and rule references. They are minor and uncontroversial.
National Accommodation Division representative
Currently, the Accommodation Hotels Division Councillor is the ex-officio National Accommodation Division (NAD) representative.[14] This is inconsistent with National Rule 52, which requires that the NAD representative from each State to be elected following National Rule 16. When there is an inconsistency between any of the provisions of the NAD rules and the rules of a Branch, the NAD rules shall prevail to the extent of the inconsistency.[15]
The alterations to Subrules 51(b) and 51(c) have been made to rectify this inconsistency. The Accommodation Hotels Division Councillor will no longer be the ex-officio NAD representative, and the NAD representative will be separately elected as per National Rule 52.
For the sake of completeness, the elections for the NAD Board will commence soon after 1 January 2025.[16]
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.
DELEGATE OF THE GENERAL MANAGER
[1] See Branch Rule 17.
[2] Imlach v Daley (1985) 7 FCR 457 at 462.
[3] Paragraph 142(1)(c) of the Act provides that rules:
must not impose on applicants for membership, or members, of the organisation, conditions, obligations or restrictions that, having regard to Parliament’s intention in enacting this Act (see section 5) and the objects of this Act and the Fair Work Act, are oppressive, unreasonable or unjust
[4] Subsection 5(3) of the Act sets out the following standards for registered organisations:
(a) ensure that employer and employee organisations registered under this Act are representative of and accountable to their members, and are able to operate effectively; and
(b) encourage members to participate in the affairs of organisations to which they belong; and
(c) encourage the efficient management of organisations and high standards of accountability of organisations to their members; and
(d) provide for the democratic functioning and control of organisations; and
(e) facilitate the registration of a diverse range of employer and employee organisations
[5] See Branch Subrule 51(a).
[6] See Branch Subrule 52(a).
[7] See E2022/201. The Branch’s past election reports can be found on our website Australian Hotels Association (AHA) - Find a registered organisation - Fair Work Commission (fwc.gov.au).
[8] See Branch Subrule 17(d).
[9] Beeson v Blayney and Others (1966) 8 FLR 292; Spicer CJ, Joske J, Eggleston JJ.
[10] Ibid per Joske J at 294.
[11] Re Mellor; Re Federated Liquor and Allied Industries Employees Union of Australia (1987) 17 FLR 120; 18 IR 350 per Gray J at 353.
[12] Ibid.
[13] See Branch’s correspondence dated 23 October 2024.
[14] See Branch Subrule 51(b).
[15] See AHA National Rule 68.
[16] See E2023/197. The AHA’s past election reports can be found on our website Australian Hotels Association (AHA) - Find a registered organisation - Fair Work Commission (fwc.gov.au).
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