Australian Municipal, Administrative, Clerical and Services Union; Australian Municipal, Administrative, Clerical and Services Union; Australian Municipal, Administrative, Clerical and Services Union

[2014] FWCD 7752

[2014] FWCD 7752

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

Australian Municipal, Administrative, Clerical and Services Union

(R2014/181, R2014/199 & R2014/223)

MR ENRIGHT	MELBOURNE, 31 OCTOBER 2014
Alteration of other rules of organisation.

[1] On 9 July, 1 August and 10 September 2014, the Australian Municipal, Administrative, Clerical and Services Union (the Union) lodged with the Fair Work Commission (the Commission) notices and declarations setting out particulars of alterations to the National rules of the Union and three of its branches.

[2] The particulars set out alterations to the Union, including alterations to Parts I, II, V, VII and VIII of the National rules (R2014/223); Part IX Division Five, the Western Australian Branch rules (R2014/199); Part IX Division Eight, the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Branch rules (R2014/181); and Part IX Division Eleven, the Victorian Private Sector Branch rules (R2014/181).

[3] The alterations to Parts I, II, V and VIII of the National rules (R2014/223) amend rules 3, 4, 8, 10, 27, 33, 38, 40, 42, 49 and 51 and insert new rule 42A. The alterations increase representation of large branches on National Executive on and from the 2015 scheduled elections; stipulate provisions regarding agreements with State Unions; clarify the provisions regarding the allocation of members to branches; change the eligibility requirements of nominators of persons to the office of Assistant National Secretary; change the eligibility requirements of appointees to specified vacant offices; enable the temporary appointment of persons to act in offices; enable the National Secretary to propose rule alterations; and update legislative references and the objects of the Union.

[4] The alterations to Part IX Division Five, the Western Australian Branch rules (R2014/199) amend rule 6 and insert new rule 25. The alterations prohibit Branch affiliation with any political party unless such affiliation is authorised by ballot of the whole of the membership; and provide members with the right to ‘opt out’ from any such affiliation or from making any payment of contributions to any political party by notice in writing to the Secretary.

[5] The alterations to Part IX Division Eight, the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Branch (the United Services Branch) rules (R2014/181) amend rules 6a, 6b, 9c and the Schedule immediately following rule 41; and insert new rule 6A. The alterations to the Schedule and rules 6 and 9 effect the amalgamation of the private sector Clerical and Administration Sub-Branches within the [2014] FWCD 7752

Branch. A transitional rule, new Rule 6A provides that office holders affected by the amalgamation shall continue in office until the next scheduled ordinary elections.

[6] The alterations to Part IX Division Eleven, the Victorian Private Sector Branch rules (R2014/181) amend rules 11b and 19a and delete rule 10. The alterations abolish the position of Alternate National Executive officer, effectively truncating the term of that office. The alterations to rule 11b state that the Branch Secretary and the Assistant Branch Secretary are additional to the Branch’s National Conference Delegates as both are National Executive Members. The alteration to 19a deletes sub-rule (vii) which identified the electorate of the intended abolished office of Alternative National Executive Representative.

Alterations to the New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Branch (the United Services Branch) (R2014/181) – merging of sub branches

[7] As outlined in paragraph [5], the alterations to the United Services Branch provide for the amalgamation of Sub Branches Hunter and Illawarra Clerical and Administrative Sub- Branches into the Sydney Clerical and Administrative Sub-Branch in the Branch rules. The post-amalgamation name of the new Sub Branch will also be the Sydney Clerical & Administrative Branch. The Commission requested further information from the Union regarding the representation of members of the amalgamated sub-branches; in particular whether the resultant representation of members across all sub-branches was reasonably proportionate.

[8] On 29 October 2014, the Union lodged a declaration signed by Mr Graeme Kelly, Branch Secretary of the United Services Branch which provided further information about the proposed merging of the Hunter, the Illawarra and the Sydney Clerical and Administrative sub-branches. Mr Kelly stated in his declaration that the rule change was placed on the agenda, approved and openly discussed at the Branch Conference meeting and had the agreement of the sub branches. He also stated that the proposed merger is consistent with past practices of merging sub branches and that the overall number of members allocated to the new sub branch is consistent with those of other sub branches in the geographical area covered by the new sub branch. Further to that, the declaration stated that the amendment will not bring about disproportionate representation.

[9] I am satisfied on the basis of Mr Kelly’s declaration that no members of the Branch or Sub-Branches are disadvantaged as a result of the Sub-Branch amalgamation; and that the rule alterations of the United Services Branch do not impose upon members, or applicants for membership, conditions, obligations or restrictions that, having regard to Parliament’s intention in enacting the Fair Work (Registered Organisations) Act 2009 Act (the Act) and the objects of the Act, and the Fair Work Act 2009, are oppressive, unreasonable or unjust within the meaning of section 142(1)(c) of the Act.

Alterations to the Victorian Private Sector Branch (R2014/181) – truncation of office

[10] On 6 October 2014, staff of the Commission advised representatives of the union that, in their opinion, certification of the rule alterations to the Victorian Private Sector Branch (R2014/181) would result in the truncation of the office of Alternative National Executive Officer of the Victorian Private Sector Branch.

[2014] FWCD 7752

[11] On 29 October 2014, the Union lodged a declaration signed on 17 October 2014 by

Ms Vicky Rogers, Alternate National Executive Officer of the Victorian Private Sector
Branch (R2014/181) consenting to the truncation of her office.

[12] In considering this matter, I refer to my previous decision of The Restaurant and Catering Association of Victoria,[1]where I have articulated the following principles pertaining to the truncation of offices:

1.   An elected office may be abolished during the term of an incumbent provided such abolition is effected in accordance with the rules and is bona fide [majority in Saint v Australian Postal and Telecommunications Union and Ors[2]].

2.    Alterations that seek to abolish an office during its term or a branch must not have an oppressive, unreasonable or unjust effect on members of applicant for members [in the plural] [Roughen v Australasian Meat Industry Employees’ Union[3]].

[1]The Restaurant and Catering Association of Victoria [2014] FWCD 4346.

[2]Saint v Australian Postal and Telecommunications Union and Ors (1979) 30 FLR 393.

[3]Roughan v Australasian Meat Industry Employees’ Union (1992) 36 FCR 536.

[13] My decision also referred to the decision of the Health Services Union,[4]in which Delegate Nassios stated that it has been the Commission’s practice to seek from officers, whose term of office are abolished midterm, declarations as to whether they understand the effect of the alterations and whether they support the alterations. Delegate Nassios stated in his decision that declarations play a key role in determining whether the truncation of a term is bona fide and whether or not it may be oppressive, unreasonable or unjust under section 142(1)(c) of the Act.

[4]Health Services Union [2010] FWAD 3897.

[14] The office-holder has lodged with the Commission a declaration confirming

understanding that the alterations will result in the truncation of the office. It is my opinion that the truncation of the term of the office of Alterative National Executive Officer in 2014 is bona fide and does not have an oppressive, unreasonable or unjust effect on members or applicants for membership within the meaning of s142(1)(c) of the Act.

Consent for the Delegate to make amendments for the purpose of correcting typographical, clerical or formal errors – R2014/181 and R2014/223

[15] On 20 October 2014, Graeme Kelly, General Secretary of the United Services Branch of the Union gave consent, under subsection 159(2) of the Act 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:

	For the purpose of correcting the clerical error in proposed Rule 41 in Item 4 of the Notice by deleting reference to ‘Rule 24’ and replacing with ‘Rule 30’.
	For the purpose of correcting the clerical error in the Branch title by placing a comma after the word ‘LOCAL GOVERNMENT’.

[16] On 29 October 2014, David Smith, National Secretary of the Union gave consent, under subsection 159(2) of the Act, 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:

[2014] FWCD 7752

 In proposed rule 42 c. i. in the alteration to the New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Branch Rules (R2014/181) by deleting a space in ‘National Vice- President’ so that it reads ‘National Vice- President’.

 In proposed Rule 42A b. v in the alterations to the National Rules (R2014/223) by deleting the word ‘Deputy’ and replacing it with ‘Assistant’.

[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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