Australian Municipal, Administrative, Clerical and Services Union
[2022] FWCD 5
•22 DECEMBER 2022
| [2022] FWCD 5 |
| 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
(R2022/100, R2022/111, R2022/131, R2022/133, R2022/141 and R2022/147)
| AILSA Carruthers | MELBOURNE, 22 DECEMBER 2022 |
Alteration of other rules of organisation.
Between August and December 2022, the Australian Municipal, Administrative, Clerical and Services Union (the ASU) lodged with the Fair Work Commission (FWC) six notices and declarations setting out particulars of alterations to its rules. The ASU requests that these matters be dealt with in a single decision.
The matters are:
· R2022/100: on 29 August 2022, the ASU lodged alterations to rules 3, 7, 8, 12, 13, 14 and 16 in Parts 1 – VIII. The particulars also alter the heading of Part VII, delete rules 37 to 43 of Part VII, insert new rule 37 and insert Part VIIIA containing new rules 58 to 88. These alterations replace the current electoral rules, change the affirmative action for women provisions and are intended to be in place for the scheduled elections due in 2023.
· R2022/111: on 15 September 2022, the ASU lodged alterations to rules 23, 26 and 33 in Division Three of Part IX. These alterations change the voting system for the election of the Queensland (Services and Northern Administrative) Branch (Qld (S&NA) Branch) National Conference Delegates from a collegiate system to a direct vote of financial members of the Branch. The alterations also clarify that the office of Deputy Branch President is elected by the Branch Executive.
· R2022/131: on 11 November 2022, the ASU lodged alterations to rules 5 and 23 in Division Ten of Part IX. These alterations reduce the number of South Australian and Northern Territory Branch (SA&NT Branch) Councillors elected by and from Industry Sections from 28 to 18.
· R2022/133: on 18 November 2022, the ASU lodged alterations to rules 3, 6, 7, 15, 18, 26, 29, 33, 36 and 44 in Division Three of Part IX. This group of alterations change the electorates for the Qld (S&NA) Branch Vice-Presidents, change the titles of the Branch Vice-President offices and remove the requirement that affected members be individually notified of changes to Branch Divisions.
· R2022/141: on 29 November 2022, the ASU lodged alterations to rule 20C in Division Nine of Part IX. The alterations create a new affirmative action position for women in the Victorian and Tasmanian Authorities and Services Branch (Vic/Tas A&S Branch) secretarial positions.
· R2022/147: on 19 December 2022, the ASU lodged alterations to rules 71, 79, 80, 81, 83, 84, 85 and 88 of new Part VIIIA and alterations to rules 3, 13, 15, 18, 22, 26, 33, 35 and 44 of Division Three of Part IX. The alterations also insert new rule 32 into Division Ten of Part IX. This group of alterations remove minor inconsistencies and remedy typographical errors. They also alter the criteria for electing an additional Vice-President in the Qld (S&NA) Branch, as well as providing a transitional arrangement for the reduction in the number of Branch Councillors in the SA&NT Branch.
In summary, the alterations, as a whole, deal with election procedures, offices to be elected and the electorates from which office holders are elected. The alterations are not independent of each other. In particular, those lodged on 29 August 2022 (R2022/100) and 19 December 2022 (R2022/147) run together and must be considered simultaneously. Consequently, I will deal with all of the alterations in this decision.
On the information contained in the notices and declarations, I am satisfied the alterations have been made under the rules of the organisation.
The ASU’s review of its election rules
Before considering the alterations themselves, it is worth noting the process undertaken by the ASU to review its electoral rules.
The ASU advises that a working party was established after the 2019 scheduled elections to review its electoral rules.[1] The aims of the review and consequent rule alterations were to:
· modernise and update the electoral rules to ensure consistency across the union;
· locate all election rules in one section of the rule book;
· clarify the election rules to ensure consistent application by returning officers;
· provide for central co-ordination of the scheduled elections; and
· adjust the election timetable to avoid clashes with school and public holidays.[2]
Whether the rules provide for the conduct of the election by the Returning Officer
Part VIIIA of the altered rules sets out the role of Returning Officers (Branch and National) and the steps required to be taken by Returning Officers in the conduct of elections. However, proposed sub-rules 65(d) to (h), which deal with the processes for drafting and publishing the notice of the Branch Elections, need further consideration.
Proposed sub-rules 65(d) to (h) of Part VIIIA set out these processes:
“(d) A draft of the notice…is to be prepared by the National Secretary and the National Secretary is to consult with the respective Branch Secretary in relation to ensuring the proposed draft notice is compliant with these Electoral Rules.
(e) Following the appointment of the National Returning Officer to conduct the Quadrennial Elections, and following the consultation required under sub-rule d., the draft notice under sub-rule d. is, as soon as is practicable, to be provided by the National Secretary to the National Returning Officer, for the National Returning Officer’s consideration.
(f) The National Returning Officer is to provide to the National Secretary, for the National Secretary’s consideration, proposed alterations (if any) to the draft notice provided under sub-rule e.
(g) The National Returning Officer is to cause the notice…subject to sub-rule h., to be placed on the respective Branch Website.
(h) The National Returning Officer is only to cause a notice… on a respective Branch Website following:
i. consultation by the National Returning Officer with the National Secretary in relation to the draft notice provided by the National Returning Officer to the National Secretary under sub-rule f. being compliant with the Electoral Rules; and
ii. following consultation under paragraph i., the National Secretary certifying, in writing, to the National Returning Officer that the notice proposed by the National Returning Officer to be placed under sub-rule b. accords with the ASU Rules.
(i)The National Returning Officer is to cause each notice… to also be placed on the Union’s Website.”
Paragraph 143(1)(b) of the Fair Work (Registered Organisations) Act 2009 (the Act) provides that the rules of an organisation:
“must provide for the conduct of every such election (including the acceptance or rejection of nominations) by a returning officer…”
The process of an election was considered in Egan v Maher[3] where Evatt J held the steps included, among other things:
“…the determination of the times and dates of the commencement and the closing of the period for lodging nomination of candidates…the period of the ballot... Each step is an integral part of the election…”[4]
The question arises as to whether the requirement that the National Secretary draft the election notice and certify the final notice contravene paragraph 143(1)(b) of the Act. It might be said that these requirements interfere with the Returning Officer’s obligation under the Act to conduct the election.
In my view the answer is no. The preparation of a draft notice by the National Secretary does not preclude the Returning Officer from determining the dates of the election. Likewise, certifying whether the election notice accords with the ASU rules does not preclude the Returning Officer from determining these dates. Nor does it preclude the Returning Officer from finalisation and distribution of the election notice. The actions required of the National Secretary are facilitative.
Whether an irregularity can occur from provision of a draft ballot paper to Branch Secretaries
Proposed sub-rule 71 g. provides:
“g. The Branch Returning Officer conducting the respective election must:
i. provide a draft of the proposed ballot paper to the Branch Secretary to enable the Branch Secretary to consider the proposed ballot paper”
Paragraph 143(1)(f) of the Act provides that the rules of an organisation:
“must be such as to ensure, as far as practicable, that no irregularities can occur in relation to an election.”
Section 6 of the Act defines an irregularity in relation to an election as, among other things:
“an act or omission by means of which:
(i) the full and free recording of votes by all persons entitled to record votes and by no other persons; or
(ii) a correct ascertainment or declaration of the results of the voting;
is, or is attempted to be, prevented or hindered…”
The Returning Officer must place strict controls over the production, distribution and recording of ballot papers to ensure that only persons entitled to vote can vote. It may be construed that provision of a draft ballot paper to the Branch Secretary undermines these controls, potentially leading to an irregularity.
However, these alterations do not, in my view, create such an difficulty. A draft ballot paper without a watermark (as is custom and practice) and the Returning Officer’s initials, and clearly marked as draft, is readily distinguishable from a ballot paper. Further, proposed rule 71 j. sets out steps that the Returning Officer must take to accurately monitor and record the production of ballot papers. Also, the provision of a draft ballot provides another element of control over the accuracy of the ballot paper, serving to reduce the potential for an irregularity. Proposed sub-rule 71 g. does not contravene paragraph 143(1)(f) of the Act.
Whether the provision of electronic balloting is contrary to the Act
Subsections 144(1) and (2) of the Act provide:
“(1) Where the rules of an organisation provide for election for an office to be by a direct voting system, the rules must also provide that, where a ballot is required for such an election, it must be a secret postal ballot.
An organisation may lodge with the FWC an application for an exemption from subsection (1), accompanied by particulars of proposed alterations of the rules of the organisation, to provide for the conduct of elections of the kind referred to in subsection (1) by a secret ballot other than a postal ballot.”
The current rules enable the Returning Officer to utilise an electronic balloting system “where it is practicable to do so” (current sub-rule 41(c)(xiv) of Part VII). Though there are slight changes to the wording, this provision is replicated in proposed rule 75 of Part VIIIA. Consequently, the question of whether proposed rule 75 is contrary to subsection 144(1) of the Act is not within my purview as the alterations do not provide for electronic voting; electronic voting is already provided for under the rules.[5]
Nonetheless it is worthwhile observing that the ASU does not have an exemption from rules that provide for a postal ballot for direct voting system elections under subsection 144(2) of the Act. The provision for electronic voting systems can only be construed as applying to collegiate elections.
Whether the rules provide for terms of office of more than four years
Subsection 145(1) of the Act provides:
“The rules of an organisation must, subject to subsection (2), provide terms of office for officers in the organisation of no longer than 4 years without re‑election.”
The current rules provide that nominations for Branch elections open on the first Wednesday in March of the year of the quadrennial election (current sub-rule 40 b. of Part VII). The proposed rules provide that nominations for Branch elections open on the first Wednesday in May of the year of quadrennial election (proposed sub-rule 65 a. of Part VIIIA). The current and proposed rules provide for four‑year terms, and that persons elected to office continue to hold office until their successor takes office (current sub-rules 37 a. and 41 e. xiii. of Part VII and proposed sub-rules 57 a. and 76 c. ii. of Part VIIIA). Because the 2023 scheduled election commences two months later than the previous scheduled election, current holders of office (Branch and National) may remain in office for slightly more than four years.
In Stapleton v Allshorn,[6] Woodruff and Northrop JJ discuss paragraph 133(1)(db) of the Conciliation and Arbitration Act 1904 (Cth) (C&A Act):
“That paragraph is concerned with the form of the rules of an organisation...the requirements of the paragraph is that the rules of an organisation do not permit a person to be elected for a period exceeding four years without being re-elected…The provision that the retiring office holder continues in office until his successor has been elected obviously is sensible to assure that, if an election is delayed, there is no interregnum.”[7]
Although the statutory provisions are expressed differently, Woodruff and Northrop’s comments above are relevant to the present case. The current and proposed rules which enable existing officers to remain in office until the next election ensure that there is no interregnum. The rules themselves do not provide for a term of more than four years and consequently subsection 145(1) is not contravened.
Affirmative action provisions
The senior national officers of the ASU are the:
· National President,
· National Vice-President,
· National Secretary, and
· National Assistant Secretary.
The current rules contain an affirmative action for women provision such that at least one of the National Secretary and National Assistant Secretary positions must be held by a woman (current sub-rule 37 c. of Part VII). The alterations increase the number of positions which must be held by women so that at least one of the National President or National Vice-President positions must also be held by a woman (proposed sub-rules 62 d., e. and f. of Part VIIIA). As such, at least two of these four positions must be held by women.
The secretarial offices of the Vic/Tas A&S Branch are the:
· Branch Secretary
· Deputy Branch Secretary, and
· Assistant Branch Secretary (2).
The current rules of the Vic/Tas A&S Branch provide for affirmative action positions for women, such that at least one of the Deputy Branch Secretary or Assistant National Secretary positions must be held by a woman (current Branch rule 20C). The alterations reserve at least one of the Branch Secretary and Deputy Secretary positions for women, and at least two of the four Branch secretarial positions for women (proposed Branch rule 20C).
Three questions arise in relation to the affirmative action provisions.
First, are the alterations contrary to paragraph 142(1)(c) of the Act? Paragraph 142(1)(c) provides that rules:
“(c) 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”.
Second, are the alterations contrary to paragraph 142(1)(d) of the Act? Paragraph 142(1)(d) provides that the rules of an organisation:
“must not discriminate between…members, of the organisation on the basis of… sex…”.[8]
Finally, do the alterations contravene Commonwealth anti-discrimination legislation? If the alterations do, they are contrary to law within the meaning of paragraph 159(1)(c) of the Act.
Subsection 19(2) of the Sex Discrimination Act 1984 (Cth) (SDA) provides:
“(2) It is unlawful for a registered organisation…to discriminate against a person who is a member of the registered organisation on the ground of the member’s sex,…gender identity,…:
(a) by denying the member access or limiting the member’s access, to any benefit provided by the organisation; or
(b) by depriving the member of membership or varying the terms of membership; or
(c) by subjecting the member to any other detriment.”
Section 7D of the SDA provides that a person taking special measures for the purpose of achieving substantive equality is not discrimination, but it does not authorise special measures if substantive equality has been achieved.
In Re: The Association of Professional Engineers, Scientists and Managers, Australia[9] (Re APESMA), Delegate Furlong considered the questions posed above.
The relevant alteration in Re APESMA created a new office reserved for members who are women. The circumstances regarding the ASU are different, in so far as the current rules already provide affirmative action positions for women and the proposed alterations increase the number of positions reserved for women. Nonetheless, the following conclusions of Delegate Furlong are relevant:
· In connection with paragraph 142(1)(c): By reserving an office for a financial member who identifies as a woman, the alteration imposed conditions, obligations or restrictions on members of the organisation. Those conditions or restrictions were imposed to encourage women to nominate for office, thereby increasing the level of women's participation in the organisation. The alteration was also intended to ensure that the organisation was representative of its members who are women. Finally, the alteration was intended to increase the gender diversity of people on bodies which have policy determination and/or management functions. In each instance the alteration was consistent with and not contrary to Parliament’s intentions in enacting the Act. Consequently, the conditions, obligations or restrictions were not oppressive, unreasonable or unjust, and not contrary to paragraph 142(1)(c).
· In connection with paragraph 142(1)(d): The Act provides little guidance as to what constitutes discrimination contrary to paragraph 142(1)(d). Delegate Furlong adopted the approach taken by Gaudron J in Street v Queensland Bar Association[10]. Gaudron J held that differential treatment of persons is not discriminatory if the treatment is relevant to the difference and appropriate to the object to be attained. In Re APESMA Delegate Furlong concluded that the differential treatment at issue was not sufficient to render the rule discriminatory. The differential treatment was relevant and appropriate to the object to be attained.
· The alteration was not otherwise contrary to law. In particular, it did not contravene the SDA because it constituted a special measure taken “for the purpose of achieving substantive equality” in accordance with that Act.
It should not be presumed that rule alterations which extend affirmative action provisions will be certified as a matter of course. Nor is it enough to point to inclusions of similar provisions in the rules of another organisation. The circumstances of the organisation seeking certification is critical. As the Full Court of the Federal Court pointed out in McLeish v Faure & Ors:[11]
“What may be a valid rule in one organization does not of necessity mean that such rule would be valid for another. Such validity may depend on different circumstances and conditions which may vary not only from organization to organization but within the same organization at different times.”[12]
In relation to the affirmative action for women positions in the national offices, the ASU relies on its submission in R2018/230 (in which the requirement that at least one of the National Secretary or National Assistant Secretary positions be held by a woman was introduced). In 2018 the ASU submitted that:
“15. The ASU has a high proportion of female members (52%) and even higher proportion of females eligible to be members (60%-70%) and require the proposed rule as a special measure to achieve substantive equality.
...
18. While there are currently a significant number of women holding offices in the ASU at the National level, substantive equality has not yet been achieved given the larger number of female members of the Union (as compared to males) and that the larger proportion of persons, eligible to be members, are female.
...
20. The ASU National Executive has reviewed the on-going need for special measures and consider that substantive equality has not yet been achieved…
…
23. The different treatment at issue is not sufficient to render the rule discriminatory because it is relevant and appropriate to the object to be attained, namely to advance effective and genuine equality.
24. The rule change is a special measure within the meaning of s 7D of the Sex Discrimination Act 1984 (C’w). The special measure is needed and is not prohibited by s142(1)(d) of the RO Act.”
In relation to increasing the number of national affirmative action for women positions, the ASU submits that:
“18. The circumstances of the present application and what the ASU seeks to achieve by the rule alterations is on all fours with that earlier application.
…
21. ...the underpinning propositions relating to the appropriateness of ensuring gender balance in these offices remains the same as it was at the time that the submission was made.”[13]
In relation to the affirmative action for women in the secretarial positions in the Vic/Tas A&S Branch, the ASU submits that:
“(13) The proposed variation to the Branch Affirmative Action Rule 20C is to ensure not less than equal representation of women in the two most senior salaried offices of Branch Secretary and Deputy Branch Secretary.
…
(17) The Branch has a high proportion of female members (approximately 58%). We note that the proportion of salaried officers required by the proposed alterations remain below that level.
(18) The Branch has determined that the proposed variation to special measures in Branch Rule 20C is necessary and appropriate to continue to advance effective and genuine equality.
(19) The Branch wishes to improve on the measures presently within the rules to encourage any female members to join by facilitating their participation in the affairs of the Union.
(20) …it is appropriate to the object to be attained, namely, to advance effective and genuine equality between members who are female and those who do not identify as female. The amendments are a consequential adjustment to the reduction in the number of salaries Branch Officers and are broadly consistent with the Branch’s existing ‘affirmative action’ measures…”[14]
Whether the affirmative action for women provisions are contrary to paragraph 142(1)(c)
In relation to paragraph 142(1)(c) of the Act, I note the following comments of Justice Ryan in Pillar v Building Workers Industrial Union of Australia[15]:
“In my view, the reservation of places on a committee of management for particular categories of members does not, of itself, infringe, or discourage the democratic control of a committee of management…Of course, there may be extreme cases where the number of offices for which candidature is restricted is out of all proportion to the numbers of persons entitled to the benefit of the restriction, or where a significant section of the membership is precluded from candidature altogether...”[16]
I accept the submissions by the ASU that these alterations intend to increase the participation of members, specifically female members, in the affairs of the ASU. I have kept in mind that the ASU has a high proportion of female members and an even higher proportion of women eligible to be members. The number of offices reserved for women at both the National and Vic/Tas A&S Branch level is not out of proportion to the number of actual or potential members, nor are members who do not identify as women precluded from candidature for leadership positions. The alterations which provide affirmative action for women are consistent with the Parliament’s intentions in enacting the Act specified in section 5 and do not impose conditions, obligations or restrictions that are oppressive, unreasonable or unjust as per section 142 of the Act.
Whether the affirmative action for women provisions are contrary to paragraph 142(1)(d)
I accept the reasoning put by the ASU that the different treatment of members is not sufficient to render the rule discriminatory because it is relevant and appropriate to the object to be attained, namely to advance effective and genuine equality. The affirmative action positions for women comply with paragraph 142(1)(d) of the Act.
Whether the affirmative action for women provisions are contrary to SDA
I accept the ASU’s submissions that substantive equality has not yet been achieved in the senior national offices nor in the senior offices of the Vic/Tas A&S Branch. I also accept its submission that reserving senior offices for women is appropriate to advance equality for women. I accept the ASU’s submissions that the alterations are special measures as defined in section 7D of the SDA.
In my view, the alterations providing for affirmative action for women are not contrary to the Act and are not otherwise contrary to law.
Reduction in the number of Branch Councillors in the SA&NT Branch
Currently the SA&NT Branch rules provide for 28 Branch Councillors elected by and from Industry Sections (current Branch rule 5). The alterations in R2022/131 reduce the number to 18 and are proportionately reduced across the Industry Sections (proposed Branch rules 5 and 23). A transitional rule is introduced in R2022/147 which ensures that existing Branch Councillors continue to hold office until the declaration of Branch Councillors in the 2023 election.
An organisation is able to determine its internal structure as it thinks fit, provided it complies with the Act and its rules.[17] The number of Branch Councillors is a matter for the ASU to determine, and it has done so in accordance with its rules.
When considering whether the reduction in the number of Branch Councillors complies with the Act, I must consider paragraph 142(1)(c) of the Act which, as noted above, provides that rules must not impose on members conditions, obligations, or restrictions that, having regard to Parliament’s intentions and the objects of the Act, are oppressive, unreasonable, or unjust.
The alterations ensure that the reduction in the number of councillors is spread evenly over the Industry Sections, and consequently representation of members on Branch Council remains proportionate to the size of each Section. In these circumstances, reducing the number of the Branch Councillors does not impose oppressive, unreasonable or unjust restrictions or conditions on members.
The reduction in the number of SA&NT Branch Councillors is a bona fide decision of the ASU, complies with the Act and has been made in accordance with the ASU rules.
Changes to the number of Vice-Presidents and electorates in the Qld (S&NA) Branch
Currently the Qld (S&NA) Branch rules entitle the members of the Transport and Northern Administrative Branch Industry Division to elect three Vice-Presidents (current Branch rule 33). Each of the Vice-Presidents is elected by and from a defined electorate within the Industry Division. The alterations combine two electorates, members in the Ports and Private electorate and members in the North Queensland Clerical and Administrative electorate, into one sector for the purpose of electing a Vice-President (proposed Branch rule 33). Proposed rule 44 sets out transitional arrangements such that existing office holders continue to hold office until the declaration of Vice-Presidents’ offices in the 2023 election.
As noted above, an organisation is able to determine its internal structure as it thinks fit, provided it complies with the Act and its rules. The number of Branch Industry Vice-Presidents is a matter for the ASU to determine, and it has done so in accordance with its rules.
When considering whether the reduction in the number of Vice-Presidents imposes oppressive, unreasonable or unjust conditions on members, as per section 142 of the Act, regard must be had to the impact on members of the Transport and Northern Administrative Branch Industry Division, whose representation at Vice-Presidential level will be reduced. In this regard, I note that the alterations also ensure that an electorate with more than 5000 financial members is entitled to an additional Vice-President (proposed Branch sub-rule 33 f.). Also, the current rules provide that the votes of the Vice-Presidents are weighted according to the size of the Branch Industry Division (Branch rule 15). In these circumstances I cannot discern any oppressive, unreasonable or unjust restrictions or conditions on members from the alterations to Branch rule 33; members continue to be represented in senior positions of the Branch according to the size of their electorates.
The alterations to the Vice-Presidential positions in the Qld (S&NA) Branch are a bona fide decision of the ASU, comply with the Act and have been made in accordance with the ASU rules.
In my opinion, the alterations comply with and are not contrary to the Act, the Fair Work Act 2009, modern awards and enterprise agreements, are not otherwise contrary to law and were made under the rules of the ASU. I certify accordingly under subsection 159(1) of the Act.
DELEGATE OF THE GENERAL MANAGER
[1] Submission by Hall Payne Lawyers on behalf of the ASU, received 29 August 2022, at point 7.
[2] Ibid., at point 8.
[3] Egan v Maher & Ors (1978) 35 FLR 197.
[4] Ibid., at 229.
[5] Re Australian Transport Officers Federation; Re Australian Shipping & Travel Officers Association (1990) 35 IR 297 at 304.
[6] Allshorn v Stapleton & Ors (1984) 4 FCR 236.
[7] Ibid., at 238.
[8] Paragraph 142(1)(d) of the Act provides that rules:
“must not discriminate between applicants for membership, or members, of the organisation on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin”.
[9] Re: The Association of Professional Engineers, Scientists and Managers, Australia[2017] FWCD 4034; 10 November 2017 at paragraphs [20] – [44].
[10] Street v Queensland Bar Association (1989) 168 CLR 461 at 571.
[11] McLeish v Faure & Ors (1979) 40 FLR 462.
[12] Ibid., at 469.
[13] Submission by Hall Payne Lawyers on behalf of the ASU, received 29 August 2022.
[14] Submission by Hall Payne Lawyers on behalf of the ASU, dated 6 December 2022.
[15] Pillar v Building Workers Industrial Union of Australia (1994) 48 FCR 512.
[16] Ibid., at 527.
[17] Imlach v Daley (1985) 7 FCR 457 at 462.
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