Australian Municipal, Administrative, Clerical and Services Union

[2018] FWCD 966

[2018] FWCD 966

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

(R2017/204)

MURRAY FURLONG MELBOURNE, 13 FEBRUARY 2018

Alteration of other rules of organisation.

1. On 4 September 2017 the Australian Municipal, Administrative, Clerical and Services Union (ASU) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to Division 11 of its rules, comprising the rules of the Victorian Private Sector Branch (the Branch rules).

1. The particulars set out alterations to Branch Rules 2, 4, 5, 6, 15 and 19. The alterations:

   ·   provide for the Branch Secretary to submit motions or questions to a vote of the Branch Executive by letter, telegram, facsimile or electronic mail;

   ·   update legislative references and the address of the registered office of the Branch; and

   ·   insert tables reflecting existing rules on electorates and eligibility for offices elected quadrennially by the Branch.

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

1. Regulation 126(1) of the Fair Work (Registered Organisations) Regulations 2009 requires that a notice setting out the particulars of the alterations (the notice) be lodged with the Commission within 35 days of the alterations being made, or within any additional period the General Manager allows. The alterations were made on 4 July 2017. On 12 July 2017, the notice was purportedly lodged via email but it was sent to the incorrect email address and was not received by the Commission. On 4 September 2017, 62 days after the alterations were made, the organisation became aware of the error and forwarded the original email, with the notice attached, to the Commission.

1. I have considered the circumstances leading to the notice being lodged outside the prescribed 35 day period. Notwithstanding that the notice was sent to the incorrect email address, an attempt was made to lodge the notice in the week after the alterations were made. The notice was lodged as soon as the organisation became aware of the error. I have also considered the fact that the ASU has lodged a number of notifications under section 159 over the past two years and has done so consistently within the prescribed time. Taking these factors into account, I have decided to exercise my discretion under regulation 126(1) and allow the alterations to be lodged on 4 September 2017.

1. On 23 October 2017, David Smith, National Secretary of the organisation, gave consent under subsection 159(2) of the Fair Work (Registered Organisations) Act 2009 (the Act) for me to make various amendments to the alterations for the purpose of correcting typographical, clerical or formal errors. Accordingly the following corrections have been made:

   · In proposed sub rules 4a and 5a, the words “and the Fair Work (Registered Organisations) Act 2009” have been added after the words “Fair Work Act 2009”.

   · In proposed sub rules 15b.i and 15c.iii, the words “and the Fair Work (Registered Organisations) Act 2009” have been added after the words “Fair Work Act 2009”.

   ·   In proposed sub rule 19a, all references to “Woman” have been replaced with “Women”.

   ·   In proposed sub rule 19a, the words “and from” in “women members by and from the whole membership” have been deleted wherever appearing in the table under B – Electorate.

   ·   In proposed sub rule 19b, all references to “Woman” in the first column have been replaced with “Women”.

1. I also note that the rulebooks issued on 17 October 2016, 16 November 2016, 22 November 2016 and 31 March 2017 in relation to matters R2016/201, R2016/67, R2016/203 and R2016/294 contained a typographical error in Division Two A, the Queensland Together Branch Rules. Directly following subrule 55a there should be a heading “56 – TRANSITIONAL RULES”. As the current rules are not the true rules of the organisation it is my right and duty to correct the record.[1] In addition to the alterations being certified, the heading has been inserted.

1. 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] Re Vehicle Builders Employees Federation of Australia (Vic Branch); Ex parte Allen 24 FLR 483.

Printed by authority of the Commonwealth Government Printer

< PR600400>