Australian Industry Group, the - [2016] FWCD 3619

[2016] FWCD 3619

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
The Australian Industry Group
(R2016/101)
MR ENRIGHT	MELBOURNE, 14 JUNE 2016
Alteration of other rules of organisation.

[1] On 2 June 2016 The Australian Industry Group [‘the organisation’] lodged with the

Fair Work Commission a notice and declaration setting out particulars of alterations to the

rules of the organisation.

1

[2]

The particulars set out alterations, including renumbering

, to rules 1, 2, 3, 4, 6, 7, 8, 9,

10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34,

35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 53A, 53B, 53C, 54,

55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79,

80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97 and 98 of the rules of the

organisation.

[3] On 6 and 7 June 2016, the organisation gave consent under subsection 159(2) of the

Fair Work (Registered Organisations) Act 2009 (‘the Act’) for the Delegate to make various

amendments to the alterations, as set out in Attachment A to this Decision, for the purpose of

correcting typographical, clerical or formal errors.

[4] On the information contained in the notice and declaration, I am satisfied the

alterations have been made under the rules of the organisation.

[5] The alterations may be briefly described as including a rationalisation of the structure

of offices with a reduction in the number of offices at Branch and National levels, the

provision for enhanced advisory committees to support policy formulation, flexibility in

allocation of eligible members to member or non-member categories according to the kind or

level of subscription paid, a change in the term of offices from 1 year to 2 years, a change in

the method of voting, modernisation of references and various consequential changes,
[2016] FWCD 3619

including transitional provisions to reflect the altered election timeframes which, under the

2

new Rules, will commence in August 2016.

[6] In examining the alterations I took particular note of the rule alterations relating to

Alternates to National Executive Members. Proposed sub-rule Rule 26(1) provides as follows:

“a Branch Council may appoint from time to time any one of its Officers to act as an Alternate to any of
the relevant Branch’s Officers who have been elected to the National Executive who is unable to attend
or participate in National Executive activities from time to time (“a non-attendance event”) during the
National Officer’s Term (other than a non-attendance event that creates a casual vacancy)….”.
[7] Proposed sub-rule 31(2)(b) provides as follows:
“An Alternate appointed by a Branch under Rule 26 is not a National Officer except to the extent such
Alternate stands in for a National Officer who is absent…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Australian Industry Group, the [2016] FWCD 3619
Case: [2016] FWCD 3619
Decision Date: 14 June 2016

CaseChat Overview and Summary

The Australian Industry Group, an incorporated association, sought approval from the Fair Work Commission for alterations to its rules under section 159 of the Fair Work (Registered Organisations) Act 2009. The alterations included changes to the structure of offices, voting methods, and the appointment of Alternates to National Executive Members. The primary legal issue was whether the proposed rules allowing the appointment of Alternates to National Executive Members contravened section 143(1) of the Fair Work (Registered Organisations) Act 2009, which mandates that the holders of specified offices be elected. The court examined the overall regulatory structure of the organisation's rules, referencing the Federal Court decision in Bicknell v Amalgamated Engineering Union, which held that a rule allowing appointment instead of election did not necessarily conflict with the requirement for election, provided the rules, as a whole, ensured the election of specified bodies and officers. The court also considered the limited role of the Alternates and whether their appointment would affect the representativeness and accountability of the National Executive. Ultimately, the court found that the rules, when viewed in their entirety, provided for the election of officeholders and that the appointment of Alternates did not contravene the Act. The alterations were approved and certified under section 159(1) of the Act.

The Fair Work Commission Delegate certified the alterations to The Australian Industry Group’s rules, finding them to be compliant with the Fair Work (Registered Organisations) Act 2009, the Fair Work Act 2009, modern awards, and enterprise agreements. The Delegate also approved minor amendments to correct typographical, clerical, or formal errors as consented to by the organisation. The certified alterations included changes to the organisational structure, voting methods, and the appointment process for Alternates to National Executive Members. The court's decision was based on the overall regulatory framework of the organisation’s rules and the limited role of the Alternates in ensuring the efficient management of the National Executive. The Delegate’s certification and the approved alterations were made under subsection 159(1) of the Fair Work (Registered Organisations) Act 2009.

Orders