Australian Municipal, Administrative, Clerical and Services Union
[2018] FWCD 6064
•22 october 2018
| [2018] FWCD 6064 |
| 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
(R2018/207)
| MURRAY FURLONG | MELBOURNE, 22 october 2018 |
Alteration of other rules of organisation.
On 30 July 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 to its rules. An additional submission regarding the inclusion of an affirmative action rule was provided on 28 September 2018.
The particulars set out alterations to Division Nine, Victorian and Tasmanian Authorities and Services Branch Rules;
5 – Branch Executive
5A – Transitional Rule – Branch Executive
7 – Meetings of the Branch Executive
8 – Branch Employees
12 – National Executive Representatives
14 – National Conference Delegates
19 – Branch Executive President and Branch Secretary
21 – Branch Auditor
23 – Election of Branch Office Holders
The particulars also set out the deletion of Division Nine, Victorian and Tasmanian Authorities and Services Branch Rule 9A – Transitional Rule – Branch Conference.
The particulars also set out the inclusion of new Rules within the Division Nine, Victorian and Tasmanian Authorities and Services Branch Rules;
6A – Branch Sub-committees
20A – Deputy Branch Secretary
20B – Assistant Branch Secretaries
20C – Affirmative Action
Establishment of New Offices
The insertion of new Rule 20A establishes the new office of Deputy Branch Secretary who will assist the Branch Secretary and Branch Executive President and carry out the directions of the Branch Secretary and/or the Branch Executive should the Branch Secretary be absent. The terms and election of this office will be the same as those for other Branch offices.
On certification of the ASU rules, the Branch Executive shall appoint a member to the position of Deputy Branch Secretary who will remain in this office till the 2019 Quadrennial elections. The Deputy Branch Secretary shall be elected every four years from and by the Financial Member of the ASU. This office will be included in the declaration of Branch Offices for the 2019 Branch Quadrennial Elections.
The insertion of new Rule 20B establishes two new Assistant Branch Secretary offices. Elections for these positions will occur at the 2019 Branch Quadrennial Elections and successful candidates shall commence in their term of office after the date of declaration of the 2019 elections. The functions of the Assistant Branch Secretaries are to set out in rule 20B.
As a result of the introduction of the new positions of Deputy Branch Secretary and two Assistant Branch Secretaries, Rule 5 has been altered to include these positions within the Branch Executive. The Branch Executive now consists of Branch President, Branch Senior Vice President, Branch Vice President (Women), Branch Executive President, Branch Secretary, Deputy Branch Secretary, Assistant Branch Secretary (2), Branch Executive Member (Youth) and Branch Executive Members from the ASU’s Industry Divisions.
Alterations to Rule 5 also require that, from the declaration of the 2019 elections, no less than two Branch Executive Members be employed or usually employed and reside in Tasmania.
Affirmative Action
The alterations to 20A and 20B described above, have had the effect of adding 3 new offices. Rule 20C requires that at least one of these offices is to be held by a woman.
On its face, this alteration raises questions in regards to subsection 159(1) of the Act which provides that;
(1) 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 alteration:
(a) Complies with, and is not contrary to, this act, the Fair Work Act, modern awards and enterprise agreements; and
(b) Is not otherwise contrary to law; and
(c) Has been made under the rules of the organisation.
These alterations also appears contrary to subsection 142(1)(d) of the Act and sections 5 and 19 of the Sex Discrimination Act 1984. These provide the following:
Section 142 – General requirements for rules
(1) The rules of an organisation:
……
(d) 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.
Section 5 – Sex discrimination
(1) For the purposes of this Act, a person (in this subsection referred to as the discriminator ) discriminates against another person (in this subsection referred to as the aggrieved person ) on the ground of the sex of the aggrieved person if, by reason of:
(a) the sex of the aggrieved person;
(b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or
(c) a characteristic that is generally imputed to persons of the sex of the aggrieved person;
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different sex.
Section 19 – Registered organisations under the Fair Work (Registered Organisations) Act 2009
(1) It is unlawful for a registered organisation, the committee of management of a registered organisation or a member of the committee of management of a registered organisation to discriminate against a person, on the ground of the person's sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities:
(a)by refusing or failing to accept the person's application for membership; or
(b)in the terms or conditions on which the organisation is prepared to admit the person to membership.
(2) It is unlawful for a registered organisation, the committee of management of a registered organisation or a member of the committee of management of a registered organisation to discriminate against a person who is a member of the registered organisation, on the ground of the member's sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities:
(a)by denying the member access, or limiting the member's access, to any benefit provided by the organisation;
(b)by depriving the member of membership or varying the terms of membership; or
(c)by subjecting the member to any other detriment.
In the past, I have considered similar rules reserving office 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 the reasoning from these decisions and the application of section 7D of the Sex Discrimination Act 1984 to the matter at hand. Section 7D provides:
Special measures intended to achieve equality
(1)A person may take special measures for the purpose of achieving substantive equality between:
(a) Men and women; or
…..
(2) A person does not discriminate against another person under section 5, 5A, 5B, 5C, 6, 7, 7AA or 7A by taking special measures authorised by section (1)
(3) …..
On 28 September 2018, the ASU submitted the following in support of the alteration:
… It is estimated that 60% to 70% of people eligible to be members of the Branch are female. Despite this the Branch is comprised of 54% female members with only 45% of Branch Delegates and Branch Officers being female.
While there are currently a significant number of women holding officers in the Branch substantive equality has not yet been achieved given the larger number of female members of the Branch and larger proportion of persons, eligible to be members, being female.
The Branch, and the ASU, wishes to adopt measures that will encourage more female members to join by facilitating their participation in the affairs of the Branch.
The ASU National and Vic/Tas A&S Branch Executives have reviewed the on-going need for special measures and consider that substantive equality has not yet been achieved...
As a result the respective executives have determined that the proposed Branch rule 20C is appropriate to advance effective and genuine equality.
The rule change is consequently designed to advance and achieve substantive equality between males and females:
a) in filling offices in the Branch;
b) ensuring the participation of women in at least one of three senior offices of the Branch; and
c) ensure a means for achieving a more female participation in the administration of the Branch by women.
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.
In the circumstances, I conclude;
· The proposed rule imposes conditions, obligations or restrictions which are intended to increase the level of participation of members, particularly female members, in the affairs of the organisation. Considering the high percentage of potential female members of the ASU and the relatively low percentage of female representation within the Branch Officers, it is evident that this rule intends to ensure that the ASU’s female members are appropriately represented within the organisation management. This is consistent with the Parliament’s intentions in enacting the Act specified in Section 5 and therefore does not impose conditions, obligations or restrictions that are oppressive, unreasonable or unjust.
· Whilst discrimination in accordance with section 142(1)(d) of the Act is not defined, following my past reasoning in recent decisions, I conclude that the different treatment at issue is not sufficient to render the rule discriminatory because it is relevant and appropriate to the objective which is being sought.
· The proposed alteration is not contrary to law. This affirmative action rule does contravene section 5 and 19 of the Sex Discrimination Act 1984, however this rule constitutes as a special measure as defined in section 7D as it is for the purpose of achieving substantive equality between men and women.
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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