Australian Licenced Aircraft Engineers Association, the

[2013] FWCD 10210

[2013] FWCD 10210

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Australian Licenced Aircraft Engineers Association, The
(R2013/27)
MR ENRIGHT	MELBOURNE, 31 DECEMBER 2013
Alteration of other rules of organisation.

[1] On 25 June 2013 The Australian Licenced Aircraft Engineers Association (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 provide for the insertion of new rules 37A, 37B, 37C, 37D, 37E and 37F into the rules of the organisation. The alterations were made for the purpose of complying with provisions of the Fair Work (Registered Organisations) Amendment Act 2012 (the Amendment Act) regarding the rules of registered organisations. In particular, the alterations provide for specified disclosures, the implementation of policies relating to expenditure and the mandatory training of officers with duties that relate to the financial management of the organisation.

[3] On the information contained in the notice, I am satisfied the alterations have been made under the rules of the organisation.

[4]        Regulation 126(2)(a) of the Fair Work (Registered Organisation) Regulations 2009

requires an officer of the organisation to declare ‘that the alteration was made in accordance with the rules of the organisation’. Mr Stephen Purvinas, the Secretary of the organisation has declared that the alterations ‘have been made...pursuant to Rules 12 and 13 of the ALAEA Rules’.

[5] The Secretary’s statement does not comply strictly with the requirements of regulation

126(2)(a). The required declaration must encompass all rules of the organisation pertaining to
the procedure for altering the rules, not just Rules 12 and 13.

[2013] FWCD 10210

[6] Regulation 126(3) provides me with the discretion to refuse to certify an alteration of a registered organisation’s rules if regulation 126 is not complied with. I have chosen not to exercise this discretion in this instance, notwithstanding the omission in the declaration of the Secretary. I have not exercised this discretion because, as stated in paragraph [3] of this decision, on the information contained in the notice, I am satisfied that the alterations have been made under the rules of the organisation. That said, it is incumbent on the relevant officer of the organisation to make a declaration that meets fully the requirements of regulation 126(2) in any future notifications of rule alterations.

[7] The rules largely incorporate the requirements of the Amendment Act. However, for the following reasons, I believe the rules will not meet all of the requirements of the Fair

Work (Registered Organisations) Act 2009 (the RO Act) once the amendments become

operational on 1 January 2014.

[8] From 1 January 2014, section 148A(1)(b) of the RO Act will mandate that the rules of an organisation require the disclosure by each of its officers of any remuneration paid by a related party in connection with their duties. As the alterations do not provide for these disclosures, the rules do not meet the requirements of section 148A(1)(b).

[9] Notwithstanding the omission noted above, the substance of the rule alterations does comply with the statutory requirements. Although a further alteration is needed this does not prevent the certification of the alterations that have been made. However, the omission of the disclosures required by section 148A(1)(b) will need to be remedied by the organisation as expeditiously as possible in order to ensure full compliance with the provisions of the Amendment Act.

[10] On 31 December 2013, Mr Purvinas gave consent, under subsection 159(2) of the Fair Work (Registered Organisations) Act 2009, for the General Manager to amend the alterations

for the purpose of correcting a typographical, clerical or formal errors. Accordingly the

following correction has been made:

 In sub-rule 37A(a) (x)(2) the word ‘to’ should be inserted between the words “period”
and “the”.

[11] The Amendment Act[1]provides that alterations to rules of an organisation for the purpose of making provision as required by the Amendment Act can be certified by the General Manager during a transition period which commenced on 29 June 2012. Any alteration to rules that is certified during the transition period, however, does not take effect until the date of certification or the commencement of Part 2 of Schedule 1 to the Amendment Act, whichever occurs later. Part 2 of Schedule 1 to the Amendment Act commences on 1 January 2014.[2]

[2013] FWCD 10210

[1]See Item 38 of Schedule 1 to the Amendment Act.

[2]See Section 2 of the Amendment Act.

[12] In my opinion, the alterations comply with and are not contrary to the RO Act, the Amendment 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 RO Act as modified by item 38 of Schedule 1 to the Amendment Act.

DELEGATE OF THE GENERAL MANAGER

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