Australian Municipal, Administrative, Clerical and Services Union

[2015] FWCD 614

[2015] FWCD 614

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

Australian Municipal, Administrative, Clerical and Services Union

(R2014/264, R2014/328 and R2015/23)

MR ENRIGHT	MELBOURNE, 16 FEBRUARY 2015
Alteration of other rules of organisation.

[1]        On 28 October 2014 and 19 December 2014, the Australian Municipal,

Administrative, Clerical and Services Union (the Union) lodged with the Fair Work

Commission (the Commission) a notice and declaration setting out particulars of alterations to

its Taxation Officers’ Branch Rules (the Branch Rules).

[2]        The particulars delete all of the existing Branch Rules (“Division Six”) of the Union

and insert new Branch Rules 1– 42.

[3]        On 3 February 2015, the Union advised the Commission that proposed rule 6 did not

accurately reflect the intention of the Branch in providing for the size of the Branch

Executive. Following and in response to advice from the Commission, the Union lodged a

further notification of changes on 10 February 2015. The further notification altered proposed

rule 6(d) to state that, in determining the number of Branch Executive Members, there will not

be less than 2 (two) nor more than 15 (fifteen) Branch Executive Members, provided that if

the Branch Executive makes no determination then the number to be elected for the next

quadrennial term will be 2 (two).

[4]        A number of aspects of the alterations warrant consideration.

Potential truncation of offices

[5]        The first issue arises in connection with changes to the Branch’s governing structures.

Under the current structure, the Branch Council is the supreme governing body of the Branch.

The current Branch Rules provide that the care, control, custody, superintendence,

management and administration of the Branch’s affairs, business, funds and property are

vested in the Branch Council (subject to plebiscite of the Branch’s members). The existing

Branch Council consists of a Branch President, Deputy Branch President, Branch Secretary,

Assistant Branch Secretary, Branch Treasurer and a number of Branch Councillors; the latter

being elected by the financial members of various Sub-Branches. The Committee of

Management of the Branch is the Branch Executive. With limited exceptions, the powers of

the Branch Council are vested in the Branch Executive between Council meetings. The

Branch Executive consists of the Branch President, Deputy Branch President, Branch

Secretary, Assistant Branch Secretary and a Branch Treasurer.
[2015] FWCD 614

[6]        The alterations abolish the Branch Council and the Sub-Branches. The power and

authority of the Branch Executive are altered so that the Executive will assume all powers,

duties and responsibilities of the current Branch Council. The Branch Executive under the

proposed alterations will consist of the Branch President, Branch Vice President, Branch

Secretary, Branch Assistant Secretary, Branch Treasurer and a number of ordinary Branch

Executive Members.

[7]        Proposed rule 42 provides for transitional arrangements whereby current office-

holders will hold an office in the new structure until the next election. In some cases the office

continues and its title is unchanged. On other occasions, the office continues, notwithstanding

a change of the title. The affected offices include the Branch Vice President replacing the

office of the current Deputy Branch President, and the Branch Assistant Secretary replacing

the current Assistant Branch Secretary. I am satisfied that the offices of Deputy Branch

President and Branch Vice President are one and the same. Similarly, given the commonality

of powers and duties, I am satisfied that the alterations re-title the existing Assistant Branch

Secretary position as the Branch Assistant Secretary.

[8]        Proposed rule 42 also provides that, upon certification, current holders of the office of

Branch Councillor shall be deemed to be the ordinary Branch Executive Members until the

declaration of the offices in the next quadrennial elections. Again, having regard to the

present and proposed structures of the Branch and the powers and authorities given to the

committees within the respective structures, it is my opinion that the office of Branch

Councillor is substantively the same as the office of ordinary Branch Executive Member.

[9]        In the alternative, and in relation to the Branch Councillors, I refer to my decision of

The Association of Professional Engineers, Scientists and Manager, Australia [2013] FWCD

6331 at [9]. Among other things, I held in that decision that an elected office may be

abolished during the term of an incumbent provided that such abolition is effected in

accordance with the rules and is bone fide [majority in Saint v Australian Postal and

Telecommunications Union and Others (1976) 30 FLR 393]. Further, my decision refers to

the principle that alterations that seek to abolish an office during its term of a branch must not

have an oppressive, unreasonable or unjust effect on members or applicants for membership

(in the plural) [Roughan v Australasian Meat Industry Employees’ Union (1992) 36 FCR

536.]

[10]      In my opinion, the transition of the Branch to simplified structure with a sole

governing body is a bona fide exercise to promote the interests and objects of the union. If

the offices of Branch Councillors are truncated, I believe that this is a necessary consequence

of those changes and that this does not have an oppressive, unreasonable or unjust effect on

members or applicants for membership. Further, given that nominations for the election of

Branch Executive Members open on 1 March 2015, the effect on members or applicants for

membership is negligible and consequently unlikely to have an oppressive, unreasonable or

unjust effect on members or applicants for membership, so as to be contrary to the RO Act.

National Executive representation

[11]      I note that proposed rule 30 states that the Branch will be represented on National

Executive by two National Executive Representatives: the Branch Secretary and the Branch

President. I further note that sub rule 8(ca) of Part II of the rules provides that, at and from the
[2015] FWCD 614

election of the National Executive in 2015, a Branch who is entitled to 10 National

Conference Delegates will have three National Executive Representatives. Proposed rule 30

is inconsistent with sub rule 8(ca) of Part II of the rules in so far that it limits the number of

representatives to two, notwithstanding that the criteria outlined in sub rule 8(ca) may be met.

This is unlikely given that the Branch had less than 1000 average member equivalents at 31

December 2014, but it is not impossible. I note that Part 1 Rule 10(e) provides that Branch

Rules shall, with the exception of Rule 56 be consistent with the National Rules and shall be

void and of no effect to the extent of any inconsistency. I do not believe that this

inconsistency prohibits certification of the alteration; however I recommend the rules are

further altered in the future.

Delegation of the Branch Secretary’s powers

[12]      I refer to the originating notification of 28 October 2014 and the proposed delegation

of the Branch Secretary’s powers. On 11 December 2014, staff of the Commission wrote to

the National Secretary of the Union to advise of concerns regarding the proposed delegation

of the powers and authorities of the Branch Secretary to Branch employees in sub rule

24(d). The correspondence indicated that proposed sub rule 24(d) may be contrary to

provisions of the Fair Work (Registered Organisations) Act 2009 (the RO Act).

Specifically, a rule investing the powers and authorities of an officer in a non-officer (i.e. an

employee) is likely not to further Parliament’s intentions in enacting the RO Act,

particularly the accountability standards referred to in subsection 5(3)(a) and (c).

[13]      On 19 December 2014 the Union lodged with the Fair Work Commission a notice and

declaration setting out particulars of further alterations to the Branch Rules of the Union. The

particulars alter proposed rule 24 in the new Branch Rules with the effect of removing the

ability of the Branch Secretary to delegate his/her powers and authorities to Branch

employees.

[14]      In my opinion, the removal of the reference to Branch employees in proposed sub rule

24(d) resolves the issue adverted to in paragraph [9]. Consequently, rule 24 can be certified.

[15]      On 19 December 2014, David Smith, National Secretary of the Union, gave consent,

under subsection 159(2) of the Fair Work (Registered Organisations) Act 2009, for the

Delegate 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 rule 3(f)(iv) by deleting ‘Member’ and replacing it with the plural

‘Members’;

	In proposed rule 12(f) by amending a typographical error: indenting the first line of the
paragraph; and
	In proposed Rule 38(b) by removing a typographical error: in removing the space in
“non-receipt”.

[16]      On 16 February 2015, Russell Atwood, National President of the Union, gave consent,

under subsection 159(2) of the Fair Work (Registered Organisations) Act 2009, for the

Delegate to make various amendments to the alterations for the purpose of correcting

typographical, clerical or formal errors. Accordingly the following corrections have been

made:
[2015] FWCD 614

	Re-number proposed sub-rule “35(f)” as “35(d)”
	In proposed Rule 36(b) replace the word “such-rule” with the word “sub-rule”

[17]      On the information contained in the notice, I am satisfied the alterations have been

made under the rules of the organisation.

[18]      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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