Australian Industry Group, the

[2014] FWCD 2326

[2014] FWCD 2326

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
The Australian Industry Group
(R2013/477)
MR ENRIGHT	MELBOURNE, 11 APRIL 2014
Alteration of other rules of organisation.

[1] On 6 December 2013, 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.

[2] The particulars set out alterations to existing Rules 4, 13, 14, 19, 20, 36, 89 and insert new Rule 12A in the rules of the organisation.

[3] Following discussions between the organisation and staff of the Commission further information was received from the organisation on 17 March 2014.

[4] A question arises as to whether the rule alteration process was complied with when transacting the alterations. Rule 30(1) of the organisation states, in part, that at ‘a Special General Meeting of the Organisation, twenty-five members of the Organisation shall form a quorum.’ The declaration by Mr John Weir Ingram, National Secretary-Treasurer, states that the rule alterations were made at a Special General Meeting of the Organisation held on 26 November 2013 at which 24 members attended in person and 1 by a valid proxy. Both the declaration and the minutes indicate that the organisation believed this to be a valid quorum and the meeting began.

[5] An examination of the rules does not indicate an express provision which would act to include a valid proxy within the quorum of a meeting. The matter is rarely argued in the corporations jurisdiction with its comparable meeting requirements as the replaceable rule in the Corporations Act 2001 for quorum explicitly provides that ‘In determining whether a quorum is present, count individuals attending as proxies ...’.[1]

[1] Section 249T Corporations Act 2001 (Cth).

1. In the decision of Kazar v Duus and others[2] the question of proxies and quorum was

considered in the environment of another incorporated entity, an Incorporated Aboriginal Association.[3] There the rules of the organisation provided that no business was to be transacted at a General Meeting unless 10 members or 25 percent of the members, whichever was greater, were ‘present’ at the meeting. In that case, Justice Merkel noted:

Under the Rules, a member may attend the meeting either in person or by proxy. The purpose of a proxy is to appoint a member as a proxy to attend and vote at the meeting

[2014] FWCD 2326

on behalf of the member as set out in the proxy. Thus, when a proxy appoints a member to attend and vote at the meeting, that member attends on his or her own behalf and also attends, and is therefore, “present”, for and as representing the proxy. There is no reason why a representative is not to be counted in determining whether a quorum of members is present.[4]

[2] Kazar v Duus and others (1998) 88 FCR 218.

[3] Incorporated under the Aboriginal Councils and Associations Act 1976 (Cth).

[4](1998) 88 FCR 218 at 227.

[7] I agree with the decision of Justice Merkel and am satisfied that, without a rule to the contrary, a validly issued proxy under the rules of the organisation is able to be counted towards the quorum of a Special General Meeting. Therefore, on the information contained in the notice, I am satisfied the alterations have been made under the rules of the organisation.

[8] On 17 March 2014, Mr John Weir Ingram, 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 rule 4 the definition of ‘Registrar’ was deleted instead of ‘Industrial Registrar’;

 In rules 19(1) and 20(1) the words ‘or Industry Sector Partner’ were inserted after

‘Association’ instead of ‘Associate’.

[9] 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

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