Australian Municipal, Administrative, Clerical and Services Union
[2018] FWCD 6272
•3 DECEMBER 2018
| [2018] FWCD 6272 |
| 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
(R2018/230)
| MURRAY FURLONG | MELBOURNE, 3 DECEMBER 2018 |
Alteration of other rules of organisation.
On 27 August 2018 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. An additional submission regarding the inclusion of an affirmative action sub-rule was provided on 28 September 2018.
The particulars set out alterations to National Rules:
20 – Capitation
30 – Purging of the Register
37 – Elections to be held
38 – Returning Officer
39 – Eligibility of Candidates
40 – Nomination of Candidates
41 – Procedure at Elections
42 – Casual Vacancies
42A – Temporary Appointment
43 – Assumption and Tenure of Office
The particulars also set out the deletion of National Rule 41A – Election of Assistant National Secretaries by Proportional Representation.
The alteration to Rule 20 removes the ability of the National Executive to determine a Branch’s capitation payment based on income the Branch received from membership subscriptions in the half of the year preceding 30 June. The sum of a Branch’s capitation payment can only be determined based on membership in the half of the year immediately preceding 31 December.
The alteration to Rule 30 inserts a minimum period of 26 weeks (6 months) after which a member can be removed from the Union’s register. This is a minimum period to complement the legislated period of 104 weeks (24 months) specified within section 172 of the Fair Work (Registered Organisations) Act 2009.
Alterations to National Rules relating to Elections
The alterations to Rule 38 correct grammatical and formatting errors as well as correct erroneous cross-referencing corresponding National Rules.
The alterations to Rule 39 correct grammatical and formatting errors.
The alterations to Rule 40 remove the requirement for a returning officer to place an advertisement in newspaper to call for nominations for National office position candidates. The returning officer can now call for nominations by placing a notice on the Union’s website. The alterations also correct grammatical and formatting errors.
The alterations to Rule 41 enable a returning officer to conduct an election for National or Branch Office positions via either an electronic ballot or a paper ballot or a combination of both. The electronic ballot is required to ensure vote security and secrecy. The alterations also clarify the election procedures which are to apply to elections for Branch offices which should be filled by collegiate elections, at a meeting of the Electoral College or postal ballot or where an ordinary meeting of the Electoral College is not practicable. For these Branch office elections, the returning officer is required to notify each member of the Electoral College via post or email of the opening and closing time of nominations. These nominations need to be endorsed by two financial members of the Electoral College. The procedure for undertaking a Branch office election by postal ballot have also been clarified and can now be done by placing an ‘X’ next to the name of the preferred candidate. This replaces the previous method of striking out the name of candidates that the voter does not wish to place a vote. The alterations to Rule 41 also correct grammatical and formatting errors and update references to outdated legislation.
The deletion of Rule 41A removes the ability to elect Assistant National Secretaries by and from the National Executive by means of a proportional representation method of election. These offices are now filled by collegiate elections by the National Executive, which is the same as other National Offices. The election of these offices is subject to the affirmative action requirements within sub-rule 37(c). This alteration does not appear contrary to the standards set out in sub-section 5(b) and (d) of the Act.
The alterations to Rule 42 require that a Branch Council or Branch Executive, when electing an eligible member to a casual vacancy for a Branch Office holder, the Branch Council or Branch Executive must also determine the date to open nominations for the election. This is only required for casual vacancies which occur when the unexpired portion of a term of office is less than 12 months or three quarters of a term, whichever greater. The alterations also correct grammatical and formatting errors.
The alterations to Rule 42A allow for the power and authority of the National Secretary to be conferred to the National President, Assistant National Secretaries and/or Employees employed in relation to the National office and/or members of the National Executive. This delegation is only required to ensure the efficient administration of the Union. The delegate is subject to the supervision and direction of the National Secretary and will be on the conditions prescribed by the National Executive and/or National Secretary. The National Executive and/or National Secretary can terminate the delegation. Similarly, the alterations also allow a Branch Secretary’s power and authority to be delegated to the Branch President, Branch Executive President, Assistant Branch Secretary and/or employees employed in relation to the Branch and/or members of the Branch Executive. This delegation is only required to ensure the efficient administration of the Union’s Branch. The delegate is subject to the supervision and direction of the Branch Secretary and will be on the conditions prescribed by the Branch Executive and/or Branch Secretary. The Branch Executive and/or Branch Secretary can terminate the delegation.
The alterations to Rule 43 clarify that an office holder ceases to hold office when they cease to be a member of the Union. The alterations also clarify when subsequent elections, for one or more offices, should and shouldn’t be conducted. A subsequent election is required if an election has been held and no successor is elected. Likewise, a subsequent election is not required when there is no member in that electorate or when a determination has been made in relation to a vacant office.
Affirmative Action Sub-rule
The alterations to Rule 37 insert an affirmative action sub-rule which reserves either the office of National Secretary or one of the two Assistant National Secretary offices for a female candidate. This sub-rule specifies the order that these positions are to be declared at each Quadrennial Election.
These alterations appear contrary to subsection 142(1)(d) of the Fair Work (Registered Organisations)Act 2009 (“the Act”) and sections 5 and 19 of the Sex Discrimination Act 1984. Therefore, raising questions in regards to subsection 159(1) of the Act which requires;
- 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 been certified that, in his or her opinion, the alterations:
(a) complies with, and is not contrary to, this Act, Fair Work Act, modern awards and enterprise agreements; and
(b) is not otherwise contrary to the law
(c) …
On 28 September 2018, the Union submitted the following in support of the alteration:
…
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 that proposed rule as a special measure to achieve substantive equality.
16. For the purposes of the Annual Gender Equality Audit the ASU reported that 52% are female and yet only 43% of the 155 National Conference offices are female.
17. Only one out of the three current senior elected full time officers of National Secretary and the two Assistant National Secretaries is female, and the purpose of the proposed rule is to increase the participation of women in at least one of the three most senior offices of the Union.
18. Whilst 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.
19. The ASU wishes to adopt measures that will encourage more female members to join by facilitating their participation in the affairs of the Union.
20. The ASU National Executive has reviewed the on-going need for special measures and consider that substantive equality has not yet been achieved as the matters set out in paragraphs 14 to 17 evidence.
21. As a result the National Executive has determined that the proposed National rule 37 c is appropriate to advance effective and genuine equality.
22. The rule change is consequently designed to advance and achieve substantive equality between males and females:
a)is filling national offices of the ASU;
b)ensure the participation of women in at least one of the three senior offices of the Union; and
c)ensure a means for achieving a more active female participation in the administration of the Union by women
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 if needed and is not prohibited by s142(1)(d) of the RO Act.
25. The proposed National rule 37 c is, for the reasons set out above, consistent with, and not contrary to, Parliament’s intentions in enacting the Act and the conditions, obligations or restrictions it provides are not in all the circumstances oppressive, unreasonable or unjust.
I have recently considered similar rules reserving offices for women in Construction, Forestry, Mining and Energy Union [2017] FWCD 6015 and The Association of Professional Engineers, Scientists and Managers, Australia [2017] FWCD 4034. I have applied my reasoning from these decisions to the circumstances at hand. I also have considered the application of section 7D of the Sex Discrimination Act 1984 which allows for special measures to be taken for the purposes of achieving substantive equality between men and women.
I conclude;
· The different treatment of female members is not sufficient to render the rule discriminatory because it is relevant and appropriate to the objective which is being sought. Therefore this alteration does not contravene section 142(1)(d) of the Act.
· Whilst this alteration is contrary to section 5 and 19 of the Sex Discrimination Act 1984, it would be considered a special measure as defined in section 7D as it is for the purpose of achieving substantive equality between men and women. Therefore this alteration is not otherwise contrary to law as required by section 159(1) of the Act.
· These alterations intend to increase the participation of members, specifically female members, in the affairs of the Union. I keep in mind that the Union has a high proportion of female members and an even higher proportion of females eligible to be members. These alterations are consistent with the Parliament’s intentions in enacting the Act specified in section 5; and does not impose conditions, obligations or restrictions that are oppressive, unreasonable or unjust as per section 142 of the Act.
On the information contained in the notice, I am satisfied the alterations have been made under the rules of the organisation.
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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