Australian Municipal, Administrative, Clerical and Services Union

[2018] FWCD 7337

[2018] FWCD 7337

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

(R2018/243)

MURRAY FURLONG MELBOURNE, 19 DECEMBER 2018

Alteration of other rules of organisation.

1. On 21 September 2018 the Australian Municipal, Administrative, Clerical and Services Union (“the ASU”) lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations its rules. Additional information regarding an apparent inconsistency within the proposed rule alteration, the change of the Committee of Management and the relevant Branch’s adherence to their rule alteration procedures was provided on 20 and 21 November 2018.

1. The particulars set out alterations to the following Division Ten, South Australian and Northern Territory Branch Rules:

2 – Registered Office
3 – Branch Conference
5 – Branch Council
6 – Powers and Duties of Branch Council
7 – Meetings of Branch Council
8 – Branch Executive
10 – Industry Section
13 – Branch President
14 – Deputy President
15 – Branch Vice Presidents
16 – Branch Secretary
22 – National Conference Delegates
23 – Branch Elections

Branch Delegates, Branch Councillors and National Conference Delegates

1. The alteration to Rule 3 modifies the number of Delegates and Delegates (Women) per the number of Financial Members attached to an Industry Section. This alteration increases the number of Delegates and Delegates (Women) for Industry Sections which have a lower number of Financial Members and is consistent with the standards set out in section 5 of the Fair Work (Registered Organisations) Act 2009 (“the Act”).

1. The alteration to Rule 5 increases the total number of Branch Councillors elected from Industry Sections from 18 to 28. The number of Branch Councillors elected from the Commercial, Energy, Local Government and Community Services Industry Sections has been increased.

1. The alterations to Rule 22 clarify who are to be the Branch National Conference Representatives. The Branch is to be represented at the Union’s National Conference by the Branch’s National Executive Representatives in addition to the National Conference Delegates elected by and from the Branch Conference in accordance with National Rule 7.

Change of Committee of Management

1. The alterations to Rule 6 and Rule 8 remove the Branch Council’s power to be the Committee of Management and confers this power on the Branch Executive after the declaration of the Branch offices in the 2019 Branch Quadrennial Election. The Branch Council is a larger body consisting of the Branch Office Holders as well as Branch Councillors from each Industry Division, whilst the Branch Executive consists of only the Branch Office Holders. These alterations raised questions as to their consistency with the standards set out in section 5 of the Act and if so, whether they might be contrary to section 142 of the Act, which requires that the rules of an organisation not be contrary to, or fail to make a provision required by the Act.

1. On 21 November 2018, the ASU submitted:

In relation to the change in Committee of Management the Branch and the Union are seeking consistency with the majority of other ASU Branches where the Branch Executive is the Committee of Management. The ASU and SA/NT Branch believes that the change is consistent with the standards set out in Section 5(3) of the Fair Work (Registered Organisations) Act 2009 particularly in relation to Section 5(c) in that it encourages the ‘efficient management’ of the Branch required to meet new more onerous FW(RO) Act reporting requirements. The change is also consistent with Sections 5(3) (a), (b) and (d) in relation to the branch being representatives of, and accountable to, its members, encourages members to participate in the affairs of the Branch and provides for the democratic functioning and control of the Branch in the same way it has for several years with other ASU branches where the Branch Executive is the Committee of Management.

1. These submissions satisfy me that the alteration is not contrary to section 5 of the Act.

Branch Council and Branch Executive Meetings

1. The alteration to Rule 7 enables meetings of the Branch Council to be conducted via letter, telegram, facsimile or electronic mail. Likewise, the alterations to Rule 8 enable meetings of the Branch Executive to be conducted via letter, telegram, facsimile or electronic mail.

Increase in Terms of Offices

1. The alterations to Rules 13, 14 and 15 increase the terms of the Branch President, Branch Deputy President and Branch Vice Presidents from two years to four years following the 2019 Quadrennial Elections. This will align the election cycles of these Branch Offices with the Quadrennial Election cycles of ASU National Offices.

Branch Elections

1. The alteration to Rule 23 inserts a table which clarifies Branch Office Holders and their associated electorates for the 2019 Quadrennial Election and all elections thereafter. This alteration also removes outdated references to biennial elections for certain offices, and clarifies that only the four Vice-Presidents elected pursuant to Rule 15 may nominate for the office of Branch Deputy President.

1. I note that an aspect of the alterations initially approved by the Branch Council of the South Australian and Northern Territory Branch and subsequently endorsed and made by the National Executive in accordance with Rule 49 of PART VIII of the ASU Rules was subsequently corrected by Mr David Smith, National Secretary.

1. The ASU was advised of an apparent inconsistency between Rule 3 which prescribes how the number of Delegates and Delegates (Women) who are to represent an Industry Section at a Branch Conference is to be determined, and the proposed Rule 23. In accordance with Rule 3 the number of Branch Conference Delegates for an Industry Section is determined by the number of financial members in that section as at the last day of November in the year preceding an election. The alteration to Rule 23 appeared to prescribe the number of Branch Conference Delegates to be elected for the Local Government and Community Service Industry Sections.

1. On 21 November 2018, the ASU Submitted:

… There is an error in relation to the inclusion of the numbering of (2) Branch Conference Delegates for Local Government members in the 28th and 29th rows and Community Services members in the 31th row of the table. Such numbering is not consistent with Rule 3 b. which requires the number of Branch Conference Delegates to be determined by the number of members in each Branch Industry Section as at the last day of November in the year preceding an election. The reference to the number “(2)” of Branch Conference Delegates in the table in Rule 23 should therefore be removed.

1. The relevant voting paper in which the members of the National Executive endorsed and made the alterations also authorised the National Secretary, Mr Smith, to make any necessary amendments to the proposed rules that may be required to ensure that they are effective at law and consistent and typographically correct provided that any such amendments are not inconsistent with the intention of the proposed rules. The corrections set out above clearly fall within this category of amendment.

1. In the circumstances, I am satisfied that Mr Smith was vested with sufficient authority by the National Executive to make the corrections set out above. I am further satisfied that this approach is not inconsistent with Rule 49 of PART VIII of the ASU Rules.

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

1. On 20 November 2018, Mr David Smith, National Secretary, gave consent, under subsection 159(2) of the Fair Work (Registered Organisations) Act 2009, for the Delegate to make an amendment to the alterations for the purpose of correcting a typographical, clerical or formal error. Accordingly the following corrections have been made:

·   Within proposed alteration to Rule 5 the figure in the first paragraph should be amended from “eighteen (18)” to “twenty-eight (28)” to reflect the increase in the total number of Branch Councillors elected from Industry Sections.

1. In my opinion, the alterations comply with and are not contrary to the Fair Work (Registered Organisations) Act 2009, 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 Fair Work (Registered Organisations) Act 2009.

DELEGATE OF THE GENERAL MANAGER

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