Australian Hotels Association – South Australian Branch

[2019] FWCD 5778

[2019] FWCD 5778

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

Australian Hotels Association – South Australian Branch

(R2019/53)

MURRAY FURLONG MELBOURNE, 24 September 2019

Alteration of other rules of organisation.

1. On 16 May 2019 the South Australian 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 its rules. Further submissions in support of the application were received 8 July and 5 August 2019.

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

1. The particulars set out alterations to Rules:

   2 – Registered office

   3 – Interpretation
              17 – Branch Council
              20 – Election of Members of Council
              44 – Special power to amend rules.

1. The particulars also insert new Rules:

   52 – Package Liquor Stores Division
   53 – Transitional provisions – Package Liquor Stores Division.

1. The alteration to Rule 2 updates the registered address of the organisation.

1. The alterations to Rule 44 provide that the Branch Council may by resolution transact alterations to the Branch Rules for the purpose of meeting any requirements of either the General Manager of the Fair Work Commission, or Federal Industrial legislation.

1. New Rule 52 creates a new Package Liquor Stores Division. The eligibility rules of the Association allow for the holder of any liquor licence in South Australia to be eligible for membership. The scope of this rule appears sufficiently broad to include licensees of Package Liquor Stores. Since 2015, the number of Branch members operating as package liquor stores have increased. Rule 52 establishes a distinct division within the Branch to ensure that these members’ interests are represented appropriately.

1. Rule 3 has been altered to remove a definition of ‘sub branch’ as sub-branches no longer form part of the overall Branch structure.

1. The alterations to Rule 17 increase the number of Branch Councillors by one. As is presently the case, twenty-seven Councillors are to be elected representatives of the Branch Districts. The twenty-eighth Councillor will be a representative elected by and from the members attached to the new Package Liquor Stores Division (see new Rule 52). The increased number of Councillors provides for generally proportional representation of members of each District or Division on the Branch Council.

1. Rule 20 has been altered to incorporate provisions for the new Branch Councillor representing the new Package Liquor Stores Division to be included in the ordinary electoral process.

1. Rule 53 is a new transitional rule intended to operate from the date these alterations are certified. It would provide that the new office of Branch Councillor representing the Package Liquor Stores Division may be filled by appointment as a casual vacancy for an interim period and by election thereafter.

1. Current Branch sub-rule 23(a) provides, amongst other things, that casual vacancies arising during the term of office a Councillor, the casual vacancy may be filled by appointment where less than three-quarters of the term remains.

1. Section 143(1)(a) of the Fair Work (Registered Organisations) Act 2009 (the Act) states:

(1) The rules of an organisation:

(a) must provide for the election of the holder of each office in the organisation.

1. Section 143(1)(a) is to be read in conjunction with section 146 which allows for casual vacancies to be filled by ways other than elections in certain circumstances.

1. Rule 53 as it stands would allow an eligible member to hold the newly created office without having been elected. In Grove v Cameron, a Full Court of the Federal Court of Australia was considering an election for offices in the Federated Miscellaneous Workers’ Union of Australia[1]. Reflecting the joint findings of Spicer CJ and Smithers JJ, Joske J at [68] stated:

An extraordinary vacancy cannot occur where no person has been elected and no person has ever had a term of service. Accordingly the casual vacancy provision does not apply.[2]

1. Rule 53 as presently drafted may be found, consistent with the decision in Grove v Cameron,[3] to be contrary to the provisions of the Act. However, the Branch has requested this alteration be held in abeyance until it can be redrafted. I agree that the alteration will be held in abeyance until the Branch either withdraws the rule alteration or requests that I make a decision with respect to the alteration. I will await further advice from the Branch.

1. In my opinion, the remaining 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 Fair Work (Registered Organisations) Act 2009.

DELEGATE OF THE GENERAL MANAGER

[1] See Grove v Cameron (1972) 21 FLR 59

[2] Joske, J in Grove v Cameron (1972) 21 FLR 59 at [68]

[3] See Grove v Cameron (1972) 21 FLR 59

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