Australian Municipal, Administrative, Clerical and Services Union
[2020] FWCD 3308
•12 AUGUST 2020
[2020] FWCD 3308
The attached document replaces the document previously issued with the above code on 12 August 2020.
Typographical error in paragraph [18] was amended.
On behalf of the Delegate of the General Manager, Mr Murray Furlong
Dated 13 August 2020.
| [2020] FWCD 3308 |
| 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
(R2020/58)
| MURRAY FURLONG | MELBOURNE, 12 AUGUST 2020 |
Alteration of other rules of organisation.
On 18 May 2020 the Australian Municipal, Administrative, Clerical and Services Union (the Union) lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to its rules. Further submissions in support of this application were lodged on 26 May and 29 June 2020.
On the information contained in the notice, I am satisfied the alterations have been made under the rules of the organisation.
The particulars:
· set out alterations to National Rules 3, 7, 8, 16, 17, 35, 37, 40, 42A and 53; and
· insert a new Rule 53 sub-rule (b).
By effecting these alterations, the Union seeks two outcomes;
- Flexibility for how and when meetings can be held in light of COVID-19; and
- To abolish one of the two offices of Assistant National Secretary.
Alterations pertaining to COVID-19
The supreme governing body of the Union is the National Conference. Rule 7 currently provides that the National Conference shall be held biennially in the last quarter of the year. The alteration empowers the National Executive to postpone the National Conference, should a critical event impact upon the ability to hold the Conference in the last quarter of the year.
The insertion of the new Rule 53 sub-rule (b) allows meetings to be held by any means in which members can communicate with each other. This is largely to enable communication via technology, as it is uncertain when face to face meetings with large groups of people will be permitted due to COVID-19.
The alterations create necessary flexibility by allowing the Union to continue to operate during the current climate without breaching its own rules. It also maintains consistency across Branches where several Branch rules already provide for flexible communication.
Due to the unprecedented nature of COVID-19, it is not unreasonable under s 142(1)(c) of the Fair Work (Registered Organisations) Act 2009 (the Act) for a Union to postpone the National Conference or hold meetings via technology instead of face to face if the current Rules cannot be followed due to circumstances outside the Union’s control.
Alterations pertaining to abolishing one of the offices of Assistant National Secretary
The effect of the remaining alterations is to abolish one of the two offices of Assistant National Secretary, one of which is currently vacant. The alterations make consequential changes throughout to ensure the rules consistently refer to only one office of Assistant National Secretary instead of two.
The following principles are relevant to the restructure of organisations;[1]
· an organisation has the right to structure itself as it sees fit [Williams v Hursey (1959) HCA 51, 103 CLR 30];
· however, if an organisation seeks to abolish an office mid-term the abolishment must be effected in accordance with the rules and must be bona fide [majority in Saint v Australian Postal and Telecommunications Union & Ors (1976) 13 ALR 649];
· 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 [Roughan v Australasian Meat Industry Employees’ Union (1992) 36 FCR 536].
The rules currently provide for two Assistant National Secretaries. One office was, and still is, held by Ms Linda White. Mr Robert Potter held the second office prior to being elected to National Secretary on 11 March 2020, meaning one of the two offices is currently vacant.
In submissions lodged on 26 May 2020, the Union confirms that the removal of the vacant office of Assistant National Secretary does not truncate Ms White’s office directly or indirectly and her rights and obligations remain the same.
Rule 37 sub-rule (c) currently provides:
The purposes of this sub-rule c. is to ensure, in relation to Quadrennial Elections, that at least one of the offices of National Secretary or Assistant National Secretary is declared to be held by a female.
I previously considered the issue of reserving offices for female candidates in Australian Municipal, Administrative, Clerical and Services Union [2018] FWCD 6272. It was determined that Rule 37 sub-rule (c) was a ‘special measure’ as defined in section 7D Sex Discrimination Act 1984, as it is for the purpose of achieving substantive equality between men and women. Abolishing one office will have no bearing on gender representation as Rule 37 sub-rule (c) still requires one of the offices to be held by a female.
While I have considered the Union’s submissions in full, the issue of whether the alterations are contrary to s 142(d) of the Act or the Sex Discrimination Act 1984 is not in dispute.
On 29 June 2020, the Applicant lodged further submissions clarifying the rationale behind the proposed alterations. According to the submissions, the abolition of the second office of Assistant National Secretary is to provide for enhanced national coordination of industrial resources.
Based on a review of the National office structure of the Union, Mr Potter reported the following:
the role of National Industrial Coordinator in Sydney will provide oversight of the Industrial functions of the ASU National Office;
the National Office salary budget will be sustainable by the removal of the vacant Assistant National Secretary role and the use of that 'saved' expenditure to pay for the new role; and
the duties of this vacant Assistant National Secretary role will be absorbed into the roles of the National Industrial Coordinator and the remaining National Elected Officers.
Having regard to s 142(1)(c) of the Act and Parliament’s intention under s 5, the alterations are not oppressive, unreasonable or unjust and do not impact upon member representation. The Union has altered its structure to enable resources to be utilised in a way that benefits the interests of the members. The removal of a vacant office rather than an occupied seat also ensures no officer has been negatively affected. There is nothing before me to suggest that the decision to abolish the office was not bona fide. Provided the Union has complied with the requirements of the Act and its rules, it should be able to mould its internal structures as it thinks fit.[2]
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] Imlach v Daley and Others (1985) 7 FCR 457 at [22].
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