Australian Municipal, Administrative, Clerical and Services Union
[2020] FWCD 2787
•28 September 2020
| [2020] FWCD 2787 |
| 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
(R2020/25)
| MURRAY FURLONG | MELBOURNE, 28 September 2020 |
Alteration of other rules of organisation.
On 2 March 2020 the Australian Municipal, Administrative, Clerical and Services Union (the Organisation) lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to their Division 8 – New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Branch (the Branch) rules. Further submissions (the Submissions) in support of the application were provided 10 March 2020.
On the information contained in the notice and further submissions, I am satisfied the alterations have been made under the rules of the organisation.
The particulars set out alterations to the entirety of the Branch rules. The Submissions received in support of the application provide further insight into the context of the alterations. Whilst not all the submissions are referred to in this Decision, I have given due consideration to all of the materials provided.
Legislative Context
Section 142 of the Fair Work (Registered Organisations) Act 2009 (the Act) sets out general requirements for rules of Registered Organisations. Relevantly,
(1)The rules of an organisation:
(a)must not be contrary to, or fail to make a provision required by this Act, the Fair Work Act, a modern award or an enterprise agreement, or otherwise be contrary to law, and
…
(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…
Section 5 of the Act relevantly provides:
(1)It is Parliament’s intention in enacting this Act to enhance relations within workplaces between federal system employers and federal system employees and to reduce the adverse effects of industrial disputation.
…
(3) The standards set out in this Act:
(a)ensure that employer and employee organisations registered under this Act are representative if and accountable to their members, and are able to operate effectively; and
(b)encourage members to participate in the affairs of the organisations to which they belong; and
(c)encourage efficient management of organisations and high standards of accountability of organisations to their members; and
(d)provide for the democratic functioning and control of organisations; and
(e)facilitate the registration of a diverse range of employer and employee organisations.
The Submissions
As abovementioned, on 10 March 2020 the Organisation furnished the Commission with further Submissions in support of the application to comprehensively alter the Branch rules. Paragraphs 3 to 12 set out the legislative and legal context of the alterations, paragraphs 13 to 29 set out an overview of the alterations and paragraphs 30 to 39 set out the Organisation’s position on the validity of the alterations. The remaining paragraphs, 40 to 53, draw upon the content of the previous paragraphs to set out the Branch’s arguments as to why the alterations should be certified.
Offices and Positions
Office, in the context of a Registered Organisation or a Branch thereof, is defined in Section 9 of the Act. The definition, at s9(1) includes:
(b)the office of a voting member of a collective body of the organisation or branch, being a collective body that has power in relation to any of the following functions:
(i) the management of the affairs of the organisation or branch;
(ii) the determination of policy for the organisation or branch;
(iii)the making, alteration or rescission of the rules of the organisation or branch;
(iv)the enforcement of rules of the organisation or branch, or the performance of functions in relation to the enforcement of such rules …
As part of the process of restructuring the governing bodies of the Branch, Sub-Branches would no longer have a Committee of Management composed of office holders. Instead, they will be administered by ordinary Committees. Consequently, all the Sub-Branch offices which comprised the Committee of Management are proposed to be replaced by non-office administrative positions. In practice, this means that certain offices are proposed to be abolished.
In addition to the changes to Sub-Branch positions, the alterations also remove the office of Conference Delegate and Alternate Conference Delegate (a matter which is further dealt with below). The alterations instead provide that the individuals holding positions as Sub-Branch Committee Members will be entitled to attend Branch Conference as part of their role. This change forms part of a package of alterations intended to transform the Branch Conference from a body of office holders who superintend the affairs of the Branch to an advisory body comprised of a mix of offices and non-office positions.
Transitional provisions have been included in the proposed alterations to ensure business continuity until the next elections. All those who currently hold office in the to-be-abolished offices will automatically become position holders on the newly created Sub-Branch Committees. I turn now to the principles relevant to a restructure that involves the abolition of an office.
Truncation of Office
The following principles are relevant to the restructure of Organisations:[1]
- an organisation has the right to restructure itself as it sees fit;[2]
- however, if an organisation seeks to abolish an office mid-term the abolition must be effected in accordance with the rules and must be bona fide;[3]
- in addition, any abolition of office must not have an oppressive, unreasonable or unjust effect on members or applicants for membership (in the plural) having regard to the objects of the legislation.[4]
As I have previously stated,[5] these principles indicate that the alterations should be certified unless they are found to be not bona fide, or that they have an oppressive, unreasonable or unjust effect on members. Therefore, I will now consider whether the abolition of the abovementioned offices is bona fide.
The Organisation addresses the truncation of offices that would occur upon certification of the new Branch rules at paragraphs 34 through 39 of the Submissions. With regard to the offices of Conference Delegate and Alternate Conference Delegate, the Organisation submits that the proposal to abolish these offices were put to a Special Branch Conference on 24 October 2019 and was unanimously endorsed at that same meeting. The Submissions affirm that this Special Branch Conference comprised many of the affected Delegates.
With regard to the Sub-Branch Offices, the Organisation submits that in the 12 months prior to the Special Branch Conference at which the alterations were transacted each Sub-Branch was addressed by the Branch Secretary regarding the proposal to amend the rules and restructure the Branch.[6] The Organisation further submits that each member who attended the Special Branch Conference on 24 October 2019 held at least one of the Offices that were proposed to be abolished and that the alterations were unanimously approved.[7]
I have nothing before me which suggests that the alterations, including the truncation of the various offices, are not bona fide. I must now consider whether the proposed alterations impose on members conditions that are oppressive, unreasonable or unjust.
The legislative context is set out earlier in this Decision. Having regard to the above and having given due consideration to the materials before me, I accept that the proposed alterations seek to improve the efficiency of the structure of the Branch, otherwise increase consistency and compliance with the regulatory scheme established by the Act and to encourage greater participation of members in the Branch. In each of these respects the alterations reflect Parliament’s intention enacting the Act. Further, I have not found anything to indicate that the proposed alterations impose on members conditions that are oppressive, unreasonable or unjust.
Transformation of the role of Branch Conference
At present the supreme government of the Branch is vested in Branch Conference.[8]
According to the Organisation, “a Branch Conference of the Branch (excluding a Branch Conference in Council Session) is made up of the Branch Executive plus the number of Conference Delegates as determined by the number of members attached to each respective Sub-Branch within the Branch”.[9] Those officers hold office for four years. The Branch Conference meets every second year. In addition, Branch Rule 5(b)(iii) provides for Branch Conference in Council Sessions, consisting of the Branch Executive and the Presidents and Secretaries of each Sub-Branch. The Branch Conference in Council Session meets in the years when the Branch Conference does not sit. Branch Rule 19 allows a special conference to be called.
As the Submissions point out:
Presently Branch rule 6 provides that, between meetings of the Branch Conference, the Branch Executive (the management committee of the Branch) has ‘all the powers, authorities, functions and duties of Branch Conference other than setting the subscription’, noting that subscriptions must presently be set in accordance with ASU National Rule 18.[10]
As noted above, the alterations change the role of the Branch Conference, including the Branch Conference in Council Session, to an advisory body. In the Organisation’s Submissions:
[T]he Branch Conference meets once every two years. The Branch Conference has been the collective body to which reports have been provided for the purpose of informing the membership through their Conference Delegates of the status of the Branch, broadly to set the policy and direction of the Branch for the next two years and, as necessary, to make rule changes recommended by the Branch Executive.
The supervisory function of the Branch Conference has been rarely utilised.
The alterations propose that a Branch Conference will formulate and recommend to the Branch Executive policies for adoption. The general proposition is, that consistently with other Unions, the Branch Council will become a focus for dialogue directed at the macro issues facing the Sub-Branches, the Branch and the Union in an environment that is not restrained by management responsibility and a focus on operational issues. (footnotes omitted).[11]
In the Organisation’s view:
The consequence of the proposed alteration is, consistent with the present practice, to make clear that the Branch Executive is the ultimate management and decision-making body of the Branch.
…
Branch Conference comprises in order of 150 members, who are all volunteers, but on current structures have significant residual responsibility without day to day operational knowledge or input and meet no more than once every two years.
The ASU considered that it is more appropriate from a governance perspective to have those members who are to be the subject of the full effect of the legislative regime to be those persons elected to the Branch Executive and who meet more regularly, approximately four (4) occasions each year in person, and who can have real and purposeful input into the operational requirements of the ASU at the Branch level.
The reverse of this proposition is that the Branch Conference under the proposed modified rule can, as noted above, concentrate on the larger issues of policy and the direction of the Branch. This reflects the reality of the decision making that occurs, with few instances of effective supervisory power having been exercised by Branch Conferences in practice. (footnotes omitted).[12]
This, the Organisation submits, will “encourage the participation, and activism, of members within their Union and the Branch”.[13]
Further, in the Organisations’ Submissions, the alterations:
- focus the role of the Branch Conference on considering and recommending policy, which is consistent with its historical function;
- alter the power of the Branch Executive (the management committee of the Branch) to assume the power of the Branch which is consistent with its historical function on a day-to-day and administrative basis; and
- providing mechanisms for on-going active participation by rank and file members in the policy determinations of the Branch.[14]
Two consequences flow from the alterations. First, it flattens the Branch’s governance structure by removing the largest collective decision-making body. The body being abolished is the one with the highest number of rank and file member participants. Secondly, it truncates the offices of the current Branch Conference Delegates elected from the Sub-Branches.
As noted above, in the twelve months prior to the holding of the Special Branch Conference each Sub-Branch was attended by the Branch Secretary and was addressed on the proposal for changing the Branch rules, before the proposed changes were overwhelmingly endorsed by the Sub-Branch Committees and unanimously endorsed by the Branch Executive.[15]
In paragraphs [4] and [5], I noted the general requirements for rules of registered organisations and the Parliamentary intentions that underpin the Act.
In Municipal Officers’ Association of Australia v Lancaster,[16] Deane J observed at 164-165:
The constraints and restrictions imposed, by positive and negative requirements of the Act and regulations, upon the freedom of the members of an organisation to select, for themselves, the rules which they consider appropriate for their particular organisation, are real and significant. It cannot, however, be too strongly stressed that, subject to those constraints and restrictions, the content of the rules of a registered organisation is primarily a matter for the members.
Those three words [oppressive, unreasonable or unjust] are used objectively in the clause and each of them is to be given its ordinary strong meaning. Plainly, their meanings overlap and definition is liable to adulterate the strength which the words possess. Nonetheless, it seems desirable that I indicate the meanings which I ascribe to them. To be oppressive, a condition, obligation or restriction must be burdensome, harsh and wrongful. To be unreasonable it must be immoderate and inappropriate. To be unjust it must be contrary to right and justice and to ordinary standards of fair play.
In Doyle v The Australian Workers’ Union,[17] the Federal Court observed:
The primary justification for the existence of a rule of an organisation is simply that the organisation has adopted that rule … The Act assumes that the rules of an organisation may impose conditions, obligations or restrictions which are not oppressive, unreasonable or unjust. The mere imposition by the rules of conditions, obligations or restrictions is not evidence that those conditions, obligations or restrictions are oppressive, unreasonable or unjust.[18]
Section 142(1)(c) of the Act was considered by the Federal Court in Butler v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.[19] In that matter Jago J cited Lancaster and Doyle with approval, before stating:
The question of oppression, unreasonableness or unjustness must involve a practical consideration of the substantive effect of the rule, not merely in isolation but in the context of the rules as a whole. Moreover, it would be surprising if the substantive questions were to be answered by reference to the form of the rule as opposed to its substance.[20]
The Organisation submitted:
Are the proposed rules oppressive?
The proposed rules are not burdensome, harsh or wrongful as the altered rules do not place further obligation on members nor significantly different obligations on officers.
The proposed structure represents the current, and long standing, administrative/governance practices of the Branch.
Are the proposed rules unreasonable?
The proposed rules are not significantly different from other organisations that have proposed alterations for the amendment of power, which have been certified.
The proposed rules are not immoderate or inappropriate, and having regard to the objects of the Act, are reasonable to ensure participation of members.
Are the proposed rules unjust?
The proposed rules apply equally to all members of the Branch and are not contrary to the principle of fair play.
Rules primarily a matter for Branch members
It is ultimately, subject to the matters set out above, a matter for the determination of the ASU, having regard to the propositions advanced by the Branch, as to what structures it will adopt for its governance at a national and Branch level. (footnotes omitted).[21]
I accept these submissions.
On its face, reconfiguring a large collective body with policy determination functions into a recommendatory body could give rise to concerns that the democratic rights of members were being undermined. This is especially true where executive, financial and administrative power is effectively concentrated within one body, in this case the Branch Executive. However, having given due consideration to the further submissions provided in support of the application, I am satisfied that the organisation has chosen this course in order to streamline decision-making, ensure that the Branch has suitably qualified and trained officials to meet the regulatory obligations set out in the Act and to enhance the Organisation’s ability to achieve its objectives – which include acting in favour of members’ interests.
Considering, also, the construct of the rules themselves, I am satisfied that the operation of proposed Rules 24 and 26 will ensure that policy recommendations made by the Branch Conference will be appropriately considered by the Branch Executive in all its decision-making. This is supported, particularly, by the addition of Rules 24(1) - (m) and 26(j) - (n) whereby the Branch Executive is required to report back to Branch Conference the outcome of their considerations.
I also accept that when a practical consideration of the substantive effects of the changes to the Branch Conference is made, the proposed structure represents the current, and long standing, administrative/governance practices of the Branch and that the supervisory powers of the Branch Conference are rarely used.
There will be occasions when tensions arise between the furtherance of the varying Parliamentary intentions which underpin the Act. For instance, an alteration may simultaneously allow an organisation to operate effectively and be efficiently managed whilst limiting its democratic functioning. On those occasions a balance must be struck in determining whether the alteration complies with and is not contrary to the Act. It is not sufficient that the alterations impose conditions, obligations or restrictions. Those conditions, obligations or restrictions must be oppressive, unreasonable or unjust.
In the present circumstances, I am unable to conclude that the conversion of the Branch Conference from a determinative body to a recommendatory one imposes on applicants for membership, or members of the organisation, conditions, obligations or restrictions that are oppressive, unreasonable or unjust, having regard to Parliament’s intention in enacting the Act, the objects of the Act and the Fair Work Act. Nor does the chosen governance structure fail to comply with the Act in any other respect. I am satisfied that in the circumstances the truncation of the Sub-Branch Delegate offices are not other than bona fide. Once those conclusions have been reached, the manner in which the organisation chooses to govern becomes primarily a matter of the members.
Conclusion
On 2 June 2020 Robert Potter, National Secretary, gave consent, under subsection 159(2) of the Act, 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 proposed rule 21 d. the word ‘be’ immediately following ‘will’ and preceding ‘appoint’ has been removed;
· In proposed rule 26 n. sub-rule j. is now referenced in conjunction with sub-rule l.;
· A duplicate Section 5 has been removed and subsequent Sections renumbered;
· In proposed 32. sub-rule 32 b. iv has been renumbered to 32 b. iii.;
· In proposed rule 41 e. the comma immediately following ‘sub-rule d’ has been replaced with a period;
· In proposed rule 41 g. the sub-rule has been renumbered 41 g. i. through 41 g. vii., and the word ‘business’ is now immediately followed by a semi-colon; and
· In proposed Schedule 1 a. ii. the word ‘column’ has not been capitalised.
In my opinion, the alterations comply with and are not contrary to the 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 Act.
DELEGATE OF THE GENERAL MANAGER
[1] See Independent Education Union of Australia [2015] FWCD 8168 at [4]
[2] Williams v Hursey (1959) HCA 51, 103 CLR 30
[3] Majority in Saint v Australian Postal and Telecommunications Union & Ors (1976) 13 ALR 649
[4] Roughan v Australasian Meat Industry Employees’ Union (1992) 36 FCR 536
[5] See Victorian Automobile Chamber of Commerce [2018] FWCD 3307 at [12]
[6] Submission at paragraph 37
[7] Submission at paragraph 38
[8] Branch Rule 5(a)
[9] Submission at paragraph 18
[10] Submission at paragraph 14
[11] Ibid at paragraphs 27 – 29
[12] Ibid at paragraphs 26, 30– 32
[13] Ibid at paragraph 33
[14] Ibid at paragraph 14
[15] Ibid at paragraphs 37, 49
[16] (1981) 54 FLR 129
[17] (1986) 12 FCR 197
[18] Ibid at 205
[19] [2012] FCA 790
[20] Ibid at [23]
[21] Submission at paragraphs 40 – 45
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