Australian Municipal, Administrative, Clerical and Services Union

[2018] FWCD 1229

[2018] FWCD 1229

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

(R2017/297)

MURRAY FURLONG MELBOURNE, 5 JUNE 2018

Alteration of other rules of organisation.

1. On 15 December 2017 the Australian Municipal, Administrative, Clerical and Services Union lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to Division 5 of its rules, comprising the rules of the Western Australian Branch (the Branch rules).

1. The particulars set out alterations to Branch rules 5, 10, 14, 15 and 18. In the main, the alterations provide for the Branch Secretary to submit motions or questions to a vote of the Branch Executive by letter, electronic mail or facsimile and insert tables reflecting rules on electorates and eligibility for offices elected quadrennially by the Branch.

1. The proposed alterations to rule 15 involve the truncation and abolition of the Assistant Branch Secretary’s current term of the office of Alternate National Executive Representative. I will now turn to the principles relevant to a restructure that involves the abolition of an office.

1. The following principles are relevant to the restructure of organisations[1]:

·   an organisation has the right to restructure 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].

1. 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. I must now consider whether the abolition of the offices is bona fide.

2. On 16 April 2018, the organisation lodged submissions explaining that the abolition of the office is bona fide as the office is unnecessary and no longer exists in most other Branches of the organisation; and the office can cause confusion with proxies appointed to the National Executive as per National Rule 8(l). The organisation also provided a signed consent form from the affected officer.  

1. I have nothing before me to suggest that the alterations are not bona fide. I must now consider whether the abolition of the offices has an oppressive, unreasonable or unjust effect on members or applicants for membership having regard to the objects of the Act.

1. Subsection 142(1) of the Act outlines the general requirements for rules. Subsection 142(1)(c) provides that the rules of an organisation

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 Act2009, are oppressive, unreasonable or unjust.

1. Parliament’s intention in enacting the Act is set out in section 5. The section provides for certain standards which include:

·   ensure that employer and employee organisations are representative of and accountable to their members, and are able to operate effectively;[2]  

·   encourage the efficient management of organisations and high standards of accountability of organisations to their members;[3] and

·   provide for the democratic functioning and control of organisations[4].

1. Having regard to the above, I accept the organisation’s submissions. The alterations do not fundamentally alter the decision making structure of the organisation. There is no loss of representation to members. In addition, the alterations enable the organisation to operate effectively. In each of these respects the alteration reflects Parliament’s intention in enacting the Act. I have not found anything to otherwise suggest that the alterations will have an oppressive, unreasonable or unjust effect on members of the organisation under section 142(1)(c).

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

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

[1] See Independent Education Union of Australia [2015] FWCD 8168 at [4].

[2] Fair Work (Registered Organisations) Act 2009, section 5(3)(a).

[3] Ibid, section 5(3)(c).

[4] Ibid, section 5(3)(d).

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