Australian Nursing and Midwifery Federation

[2013] FWCD 9167

[2013] FWCD 9167

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Australian Nursing and Midwifery Federation
(R2013/442)
MR ENRIGHT	MELBOURNE, 27 NOVEMBER 2013
Alteration of other rules of organisation.

[1] On 31 October 2013 the Australian Nursing and Midwifery Federation lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to the rules of the Australian Nursing and Midwifery Federation.

[2] The particulars provide for the insertion of new rule 38A and Schedule 1 into the rules of the organisation. The alterations were made for the purpose of complying with provisions of the Fair Work (Registered Organisations) Amendment Act 2012 (the Amendment Act) regarding the rules of registered organisations. In particular, the alterations provide for specified disclosures, the implementation of policies relating to expenditure and the mandatory training of officers with duties that relate to the financial management of the organisation.

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

[4] I note that the preamble of the Schedule 1 to be inserted into the organisation’s rules provides that references to the Federation shall be read as references to each Branch, and references to office and officers shall be read as references to a Federal office or officer or as a Branch office or officer as the context requires. However, this construction purports to apply a mutually exclusive reading of ‘Federation’, so that it can only mean either the Federation or its Branch, as the context requires, and not both. Consequently, in my view, sub rules 5(a)(i)(B); 6(c) and 7(a) of Schedule 1 of the organisation’s rules do not meet all of the requirements of the Amendment Act for the following reasons.

[5] Section 148A(1)(a)(ii) of the Amendment Act states that the rules of an organisation

must require the disclosure, by each officer of the organisation, to the organisation of any
remuneration paid to the officer because the officer is a member of a Board, if the officer was
nominated for the position of member of the Board by the organisation, a branch of the
organisation or a peak council. As sub rule 5(a)(i)(B) of Schedule 1 omits a reference to
Branch, the rule does not meet all of the requirements of section 148A(1)(a)(ii).

[6] Sections 148B(4) of the Amendment Act provides that the rules of an organisation

must require the disclosure, by an organisation, to the members of the organisation and its
branches, of any material personal interests of officers and relatives. As sub-rule 6(c) of

[2013] FWCD 9167

Schedule 1 omits a reference to the organisation’s Branches, the rule does not meet all of the requirements of sections 148B(4).

[7] Section 148C(1) of the Amendment Act provides that the rules of an organisation

must require the disclosure, to the members of the organisation and its branches, of payments
made by an organisation or a branch. As sub rule 7(a) of Schedule 1 omits a reference to
Branch, the rule does not meet all of the requirements of section 148C(1).

[8] Notwithstanding the omissions noted above, the substance of the rule alterations does comply with the statutory requirements. Although further alterations are needed this does not prevent the certification of the alterations that have been made. However, the omissions of the references to Branch or Branches in the rules noted above will need to be amended by the organisation as expeditiously as possible in order to ensure full compliance with the provisions of the Amendment Act.

[9] The Amendment Act[1]provides that alterations to rules of an organisation for the purpose of making provision as required by the Amendment Act can be certified by the General Manager during a transition period which commenced on 29 June 2012. Any alteration to rules that is certified during the transition period, however, does not take effect until the date of certification or the commencement of Part 2 of Schedule 1 to the Amendment

[1]See Item 38 of Schedule 1 to the Amendment Act.

Act, whichever occurs later. Part 2 of Schedule 1 to the Amendment Act commences on

1 January 2014.[2]

[2]See Section 2 of the Amendment Act.

[10] In my opinion, the alterations comply with and are not contrary to the Fair Work (Registered Organisations) Act 2009 (the RO Act), the Amendment 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 RO Act as modified by item 38 of

Schedule 1 to the Amendment Act.

DELEGATE OF THE GENERAL MANAGER

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