Australian Municipal, Administrative, Clerical and Services Union

[2024] FWCD 1042

[2024] FWCD 1042

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

Australian Municipal, Administrative, Clerical and Services Union

(R2024/69)

CHRIS ENRIGHT MELBOURNE, 10 SEPTEMBER 2024

Alteration of other rules of organisation.

1. On 21 May 2024 the Australian Municipal, Administrative, Clerical and Services Union (ASU) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules. Further material in support of the alterations was lodged on 31 July 2024.

1. The ASU seeks certification of the alterations under section 159 of the Fair Work (Registered Organisations) Act 2009 (the Act).

1. The particulars set out alterations to Parts I and VIII of the ASU rules. The altered rules are:

   ·   Rule 3 – Definitions; and

   ·   Rule 55 – Delegates, Shop Committees and Regional Committees.

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

1. I note that the proposed alterations relate to the Fair Work Legislation Amendment (Closing Loopholes)Act 2023 (Cth) (Closing Loopholes Act) which amends provisions of the Fair Work Act 2009 (Cth) (FW Act). Among other things, these amendments include rights and protections for workplace delegates.

The Statutory Scheme Regarding Workplace Delegates

1. The amendments to the FW Act introduce section 350C, which afford workplace delegates with specific protections. Section 350C was further amended with effect from 26 August 2024 to extend those protections to regulated workers. Subsection (1) currently provides that:

“A workplace delegate is a person appointed or elected, in accordance with the rules of an employee organisation, to be a delegate or representative (however described) for either or both of the following:

(a)members of the organisation who work in a particular enterprise;

(b)members of the organisation who perform work for, or that has been arranged or facilitated by, a particular regulated business.”

1. Subsection 350C(3) of the FW Act provides that workplace delegates are entitled to certain rights, such as representation, communication with members and other persons entitled to be members, and access to workplace facilities.

1. I recently considered rules regarding workplace delegates and the Closing Loopholes Act in a previous decision.[1] In that decision, I determined that:

   ·   a workplace delegate must be interpreted as a person who works in the enterprise or regulated business;[2]

   · rules regarding workplace delegates must not undermine the statutory scheme regarding workplace delegates set out in the FW Act;[3] and

   · rules must not purport to extend workplace delegate rights or obligations to persons who would not be so entitled under the FW Act.[4]

1. Considering the factors listed above, I am required to consider whether the alterations comply with and are not contrary to the Act, the FW Act, modern awards and enterprise agreements, and are not otherwise contrary to law.[5]

1. While keeping these provisions in mind, I turn to the proposed alterations.

Do proposed rule 3 and subrule 55(a) operate to create delegates who do not work at the enterprise or regulated business?

National Conference Delegates and persons with delegated powers

1. The alterations to rule 3 insert a new definition of “Delegate” in the ASU rulebook. The definition states that:

“Delegate” means a member elected or appointed in accordance with rule 55. A Delegate may alternatively be descried as a “Steward” or “Workplace Representative”.

1. Proposed subrule 55(a) states that:

“A Delegate appointed under Rule 55 is a workplace delegate for the purposes of s350C of the Fair Work Act 2009 (Cth).”

1. As noted in my previous decision, in my opinion, the proper interpretation of section 350C of the FW Act is that workplace delegates provisions are confined to persons who work at the enterprise or regulated business.[6]

1. The word ‘delegate’ appears throughout the ASU rulebook in different contexts. For example, there are references to National Conference Delegates, as well as other delegates in circumstances where a power belonging to an officer has been delegated to another officer.[7] This raises the question of whether the proposed alterations to rule 3 extends the rights and protections afforded to workplace delegates, by section 350C of the FW Act, to other delegates who are not so entitled.

1. However, the first sentence of rule 3 provides a qualification to the application of the definitions listed in rule 3. Rule 3 begins as follows:

“In these rules, unless the context otherwise requires”.

1. This sentence demonstrates that there may be instances in the ASU rulebook where a word, in particular the word ‘delegate’, can have a different meaning depending on the context of the rule. In my opinion, the qualification asserted in this sentence provides a sufficient limitation to ensure that National Conference Delegates and persons with delegated powers are not workplace delegates as contemplated by section 350C of the FW Act. In this respect, proposed rule 3 and subrule 55(a) do not undermine the statutory scheme relating to workplace delegates.

Delegates of members in any area of membership

1. The proposed alterations insert a new subrule 55(c), which states:

“A majority of members employed in any area of membership or part thereof may nominate from amongst their number a person or persons to act as Delegate or Delegates. Any nominees will be notified to the Branch Secretary and the Branch Committee of Management who may appoint them as a Delegate.”

1. The words “in any area of membership” are quite broad and have the potential to include areas wider than within the enterprise or regulated business. If the proposed rule were to extend the definition of workplace delegates beyond what is provided by the FW Act, and also extend entitlements to persons not otherwise entitled, this would be contrary to the Act.[8] However, the proposed subrule does not mean that a delegate chosen by a group of members will necessarily be a workplace delegate, as defined by the FW Act. Whether the chosen delegate becomes a workplace delegate is at the discretion of the Branch Committee of Management or Branch Secretary. The Branch Committee of Management or Branch Secretary can only act within the framework of the FW Act, that is they can only appoint a person who works within the relevant enterprise or regulated business as a workplace delegate. In my view, subrule 55(c) does not extend workplace delegate rights to persons outside the enterprise or regulated business.

Does proposed subrule 55(e) entitle workplace delegates to rights outside the scope of the FW Act?

1. The rights of workplace delegates are prescribed in subsection 350C(2) and (3) of the FW Act.

1. Proposed subrule 55(e) states that:

“Delegates shall have such rights and duties as National Conference or National Executive may from time to time determine together with additional rights and duties as are determined by the Branch Committee of Management.”

1. The proposed rule raises the question as to whether the subrule can be interpreted as providing the National Conference, National Executive or Branch Committee of Management, with the power to endow workplace delegates with rights and duties outside the scope of the FW Act statutory scheme.

1. It is important to note that rules cannot impose obligations and duties on parties who are not bound by the rules;[9] the rules of an organisation are a compact between the members of the organisation.[10] In other words, the National Conference, National Executive or Branch Committee of Management cannot grant ASU delegates with rights that would impose obligations and duties on the employer at the enterprise or regulated business. The rules of the ASU are not a compact with employers, they are a compact between members. This is not to say that the National Conference, National Executive or Branch Committee of Management cannot endow their delegates with rights and duties additional to those encompassed by the FW Act, however those rights and duties are limited to matters that regulate the delegates’ relationship with the ASU.

1. Therefore, the rule must be interpreted in a manner that confines the rights and duties within the FW Act statutory scheme. In my opinion, the alteration does not extend the rights of delegates outside the scope of the FW Act.

1. As I have determined that the alterations are not contrary to the FW Act, I will now move on to consider whether the alterations impose conditions, obligations or restrictions that are oppressive, unreasonable or unjust.[11]

Proposed subrule 55(d) and termination of delegates – does it impose oppressive, unreasonable or unjust conditions?

1. The general requirements for rules of an organisation are listed in section 142 of the Act. Subsection 142(1)(c) specifies that rules must not impose conditions, obligations or restrictions that, having regard to, among other things, Parliament’s intentions and the objects of the Act, are oppressive, unreasonable or unjust.[12]

1. Proposed subrule 55(d) states that:

“The Branch Committee of Management may at any time terminate the appointment of the Delegate who fails to comply with the rules of the Union, a policy of the Union, or with a direction of the Branch Committee of Management.”

1. Case law has established that expulsion of members on grounds of failing to comply with a direction of the governing body or policy of the union may be considered oppressive, unreasonable or unjust, as members may not be aware of the directions or policy.  As stated in Thornton[13]

…the power to punish for not complying with the decisions of Conference or the National Council or not carrying out the policy in the Union cannot be conceded unless coupled with provisions for the promulgation of details of the decisions and the policy in such a way that a member may reasonably ascertain what he is obliged to do or refrain from doing… [14]

1. Nevertheless, proposed rule 55(d) can be differentiated from the case law noted above as the provision deals with the termination of a union member’s role as a delegate, not removal from their fundamental right to membership.[15] In comparison to members, representatives of the union, such as delegates would be expected to have a higher level of responsibility and understanding of operations of the union and therefore know policy and follow directives. In these circumstances I am satisfied that proposed rule 55(d) does not impose conditions, obligations or restrictions that, having regard to Parliament’s intentions and the objects of the Act, are oppressive, unreasonable or unjust.

1. In my opinion, the alterations comply with and are not contrary to the Act, the FW Act, modern awards and enterprise agreements, are not otherwise contrary to law and were made under the rules of the organisation. I certify accordingly under subsection 159(1) of the Act.

DELEGATE OF THE GENERAL MANAGER

[1] Re Independent Education Union of Australia[2024] FWCD 1019.

[2] ReIndependent Education Union of Australia[2024] FWCD 1019 at [37].

[3] Re Independent Education Union of Australia[2024] FWCD 1019 at [18].

[4] Ibid.

[5] Subsection 159(1) of the Act provides that:

(1)An alteration of the rules (other than the eligibility rules) of an organisation does not take effect unless particulars of the alteration have been lodged with the FWC and the General Manager has certified that, in his or her opinion, the alteration:

(a) complies with, and is not contrary to, this Act, the Fair Work Act, modern awards and enterprise agreements; and

(b)  is not otherwise contrary to law; and

(c)  has been made under the rules of the organisation.

[6] Re Independent Education Union of Australia[2024] FWCD 1019 at [23] – [37].

[7] ASU rule 37(f).

[8] Re Independent Education Union of Australia[2024] FWCD 1019; Re Minister for Workplace Relations and Small Business [1998] AIRC 1770, Print Q6814.

[9] Re Fair Work Commission [2023] FWCG 25 at [73]

[10] Gordon v Carroll (1975) 27 FLR 129 at 155; Roots v Mutton (1978) 32 FLR 15 at 18

[11] Section 142(1)(c) of the Act.

[12] Subsection 142(1)(c) of the Act provides that rules:

…must not impose on applicants for membership, or members, of the organisation, conditions, obligations or restrictions that, having regard to Parliament’s intention in enacting this Act (see section 5) and the objects of this Act and the Fair Work Act, are oppressive, unreasonable or unjust.

[13] Thornton & Ors v MacKay& Ors (1945) 56 CAR 561; Hardiman v TWU (1954) 80 CAR 1232.

[14] Thornton & Ors v MacKay& Ors (1945) 56 CAR 561 at 591.

[15] Subsection 166(1) of the Act provides that:

(Printed by authority of the Commonwealth Government Printer

<PR777463>

1. Subject to any modern award or order of the FWC, a person who is eligible to become a member of an organisation of employees under the eligibility rules of the organisation that relate to the occupations in which, or the industry or enterprise in relation to which, members are to be employed is, unless of general bad character, entitled, subject to payment of any amount properly payable in relation to membership: 

   (a)  to be admitted as a member of the organisation; and 

   (b)  to remain a member so long as the person complies with the rules of the organisation.