Australian Industry Group, the
[2016] FWCD 3619
•14 June 2016
[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.
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| [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
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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 from proceedings of the National Executive and
subject always to Rule 26, the Alternate may be counted in a quorum of National Officers and may
exercise the vote of the National Officer for whom he or she is the Alternate but is not entitled to
exercise any of the other rights, powers or authorities conferred on National Officers or the National
Executive; must not hold himself or herself out as a National Officer elected under the Rules; and where
the officer for whom he or she is the Alternate is required by the Act to do any act, matter or thing as
the secretary or prescribed Officer, then the Alternate must not act as the secretary or prescribe Officer
for those purposes.”
[8] Rules 26 and sub-rule 31(2) effectively replace existing sub-rule 37(2) which provides
as follows:
“Each branch shall be entitled to elect annually in accordance with these Rules two Alternate National
Councillors.
A duly elected Alternate National Councillor may on request by his or her Branch President act for and
in the place of a National Councillor from his or her branch who has been granted leave of absence by
the National Executive or who in the opinion of the Branch President is for any reason unable to carry
out his or her duties as a National Councillor. In any such event the Branch President shall notify the
National President and shall specify the period during which such Alternate Councillor shall act.”
[9] The existing rules provide that any Alternates shall be elected by and from the
members of the respective Branch Council. The proposed rules provide that any Alternates
shall be appointed by the Branch Council. The question I considered was whether or not the
proposed rules contravened sub-section 143(1) insofar as an Alternate, to the extent to which
he or she might fall within the definition of officer, was not elected.
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| [10] | In its decision in Bicknell v Amalgamated Engineering Union | , the Federal Court of |
Australia, considering the requirements of regulation 115(1)(d) of the Conciliation and
Arbitration Regulations, held that a rule which provides that an officer may be appointed and
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| not elected was not necessarily incompatible with the regulation. | The regulation did not, by |
its terms, require that every office shall in all circumstances be filled by election. Where there
is such a rule, the question is whether, notwithstanding its presence, it can be said that the
[2016] FWCD 3619
organisation’s or branch’s affairs are regulated by rules which, looked at in their entirety,
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| provide for the election of specified bodies and officers. | It was further held that: |
“Where a rule contains a provision for appointment in lieu of election its validity will depend upon the
nature of the appointment authorized, the circumstances in which the appointment is permissible, the
nature of the office, the constitutional structure of the organization and all the rules relating to the office
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concerned.”
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[11] The principles from Bicknell were reiterated in Re Airline Hostesses’ Association,
where the Court, considering that certain elected federal and branch officers were also
members of the federal council and federal executive without further election, found that the
8
| rules could be considered, as a whole, to have provided for the election of offices | . Bowen CJ, |
with whom the majority agreed, accepted the submission that the emphasis of “the election”
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in section 133(1)(a) was on “the holder” rather than “each office”.
[12] In looking at the circumstances of the proposed rules I note that the position of an
Alternate is restricted to performing a voting function on the National Executive in an
occasional sense, in the manner of a proxy although it is not described by that term, in the
context of the non-attendance at a meeting of the National Executive on any particular
occasion by a Member of the National Executive from that Branch already elected. A rule to
not dissimilar effect, which provided that a National Councillor could appoint a proxy from
the Branch Committee of the National Councillor’s Branch was certified by a Registrar in
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2008. In that matter, my predecessor appears to have accepted the organisation’s
submission that there was no separate office created which was not elected, the elected
National Councillor remained in office at all times, and the Branch Committee Member
appointed was also an elected officer.
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| [13] | I considered the organisation’s submission, received on 7 June 2016, | that the |
appointment of an Alternate did not have to be made but if made, would support the efficient
management of the organisation’s committee in securing a quorum and the representation of
the Branch where the elected member of the National Executive could not attend to deal with
urgent issues arising. I accept that the appointment of an Alternate, in the restricted proxy
sense, would not diminish the organisation’s representativeness of or accountability to its
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| members, | since the representative composition of the National Executive would in no way |
be altered on any occasion that it meets. I also accept that in the circumstances described,
with the organisation’s experience of difficulty in achieving quorums, and given that in any
case there could be no guarantee that, on any occasion an Alternate would be required to stand
in for a non-attending National Executive Member, that Alternative might himself or herself
be available or able to do so, the mechanism of appointment from time to time would
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facilitate the efficient management of the organisation.
[2016] FWCD 3619
[14] I also considered the organisation’s submission to the effect that a Branch Council
appointing one of its own members would in the sense of a practical process be
indistinguishable from the Branch Council collegiately electing one of its own members and
accept that the rules would not diminish the organisation’s democratic functioning and
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control.
[15] Having regard to relevant principles and standards of the Act, I consider that the rules
of the organisation as altered, looked at in their entirety, provide for the election of the holders
of each office in the organisation and that the rules relating to Alternates do not offend sub-
section 143(1).
[16] In my opinion, the alterations comply with and are not contrary to the Fair Work
(Registered Organisations) Act 2009, 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
Printed by authority of the Commonwealth Government Printer
<Price code A, PR581183>
[2016] FWCD 3619
ATTACHMENT A
1. Insert the word “in” immediately after the words “Associate category referred to” in
the definition of “Associate” in Rule 4
2. Replace the reference to “sub rule 51(3)” with the reference “sub rule 50(3)” in the
definition of “Election Instructions” in Rule 4.
3. Delete the word “of” immediately after the words “means the rights” in the definition
of “Membership Rights” in Rule 4
4. Replace the reference to “Rule 17” where it appears immediately after the words
“shall be removed from the Register in accordance with” in sub-rule (3) of Rule 17
with “Rule 11”
5. Delete the words “or elected” where they appear immediately following the words
“where the context permits include the Alternates appointed” in the definition of
“National Officers” in Rule 4.
1
Renumbering occurred as a result of the replacement of rules 6A through to 98 including deletions, and the re-arrangement
of the replacement rules resulted in rules numbered 6 through to 54.
2
The date proposed for the register (i.e. roll) closing under the existing rules has been advised as 15 June 2016; the new rules
envisage a register closing date in August 2016
3
(1969) 15 FLR 215
4
Ibid. at page 218
5
Ibid. at page 221
6
Ibid. at page 223
7
(1980) FCA 110, 48 FLR 214
8
Ibid. per Bowen CJ at para. 22, Sweeney J at paras. 46-48
9
Ibid. per Bowen CJ at para. 24, Evatt J. at para. 9, Northrop J at para. 1
10
PR981503 National Tertiary Education Industry Union
11
Submission by J.Leuba 7/6/16
12
cf. s5(3)(a)
13
Ibid. cf. s5(3)(c)
14
Ibid. cf. s5(3)(d)
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