Australian Nursing and Midwifery Federation

[2024] FWCD 1068

[2024] FWCD 1068

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

Australian Nursing and Midwifery Federation

(R2024/146)

CHRIS ENRIGHT MELBOURNE, 18 DECEMBER 2024

Alteration of other rules of organisation.

1. On 3 October 2024 the Australian Nursing and Midwifery Federation (the ANMF) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules. Submissions and other material in support of the alterations were also lodged on 25 November 2024.

1. The ANMF seeks certification of the alterations under section 159 of the Fair Work (Registered Organisations) Act 2009 (the Act).

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

1. The particulars set out alterations to Rules 65A, 65B, 77, 82, 83, 84A, 84B, 85, 85A, 85B and 91. The particulars also set out new Rule 93.

1. Taken together, the alterations operate as two packages. The first is concerned with the composition and election of the ANMF’s Australian Nursing and Midwifery Federation QNMU Branch’s (QNMU Branch) Branch Council. The second is concerned with the composition and election of the ANMF’s Australian Nursing and Midwifery Federation New South Wales Branch’s (NSW Branch) Branch Council.

1. In both the QNMU Branch and the NSW Branch the Branch Council is the branch’s committee of management.[1] Subject to the control and direction of the Federal Council each ANMF branch is responsible for its own government.[2]

1. The alterations pertaining to the QNMU Branch:

   ·   abolish the office of Branch Assistant Secretary. Currently the Branch Assistant Secretary is a voting member of the Branch Council.[3]

   ·   in lieu of the office of Branch Assistant Secretary create new offices of Branch Assistant Secretary (Nursing)[4] and Branch Assistant Secretary (Midwifery).[5] The current Branch Assistant Secretary and the proposed Assistant Secretary (Nursing)[6] and Branch Assistant Secretary (Midwifery) are/will be voting members of the QNMF Branch’s Branch Council.[7] The duties of the two new offices are similar to those of the existing office.[8] Currently, any member attached to the QNMF Branch may be elected to the office of Branch Assistant Secretary.[9] Under the proposed alterations one of the two new Branch Assistant Secretary offices will be elected from members who are registered as nurses.[10] The other will be elected from members who are registered as a midwife.[11] In other words, the relevant rule changes are intended to ensure both nursing and midwife members are guaranteed a Branch Assistant Secretary office. The financial members of the ANMF attached to its QNMF Branch constitute the electorate for the two new offices;[12]

   ·   further increase the size of the Branch Council by creating two new offices: the Aboriginal and Torres Strait Islander North Queensland Branch Council Office[13] and the Aboriginal and Torres Strait Islander South Queensland Branch Council Office.[14] The two offices will be filled by members who identify as Aboriginal and Torres Strait Islander people.[15] The electorates for the two offices are members who identify as Aboriginal and Torres Strait Islander people and reside, respectively, above or below, the Tropic of Capricorn;[16]

   ·   extend to the newly created offices provisions that generally restrict a person’s right to nominate for multiple offices;[17] and

   ·   put in place transitional arrangements which operate between the day the alterations are certified and the next scheduled elections in the QNMF Branch. The current Branch Assistant Secretary office is not abolished until the end of its current term.[18] The current holder of that office continues to do so until the declaration of the next scheduled elections in 2025.[19] So long as they hold office, they continue to perform their duties under the rules as they currently stand.[20] The three new offices do not commence until the 2025 elections.[21]

1. In other words the size of the Branch Council of the QNMF Branch will increase by three, following the next scheduled elections. Two of those offices will be filled by members who identify as Aboriginal and Torres Strait Islander people. In addition, both the nursing and midwifery cohorts will be guaranteed a senior office and a voice on the Branch Executive.[22]

1. The alterations pertaining to the NSW Branch:

   ·   increase the size of the Branch Council by creating two new offices: the Aboriginal or Torres Strait Islander Nurse Councillor[23] and the Aboriginal or Torres Strait Islander Midwife Councillor.[24] Each of those offices will be members[25] who can “provide to the Returning Officer… documentation evidencing Aboriginality.”[26] The proposed rules go on to set out forms of documentation that is considered appropriate.[27]In addition, as their names suggest, the new offices are reserved for a nurse and a midwife respectively.[28] The electorate for the two new offices are the financial members of the ANMF attached to its NSW Branch.[29]

   ·   extend to the newly created offices provisions that restrict a person’s right to nominate for certain other offices;[30] and

   ·   put in place a transitional provision dealing with the duration of the inaugural terms of office.[31] There is no transitional provision dealing with when the new offices commence. As a consequence elections for the two new offices would be required to be held as soon as practicable after the alterations are certified.[32]

1. In other words, the size of the Branch Council of the NSW Branch will increase by two if the alterations are certified. Those offices will be filled by members who identify as Aboriginal people.

1. With one exception—which is dealt with below—the substance of the proposed alterations is routine. Rules such as those proposed by the ANMF can be found in the rulebooks of various registered organisations and are generally considered uncontroversial. It is therefore unnecessary to further discuss them, beyond certifying my opinion about the matters contained in s.159(1)(a) & (b) of the Act. I do so below.

Reservation of offices on the basis of race

1. The proposed alterations requiring further discussion are those that create the offices of:

   ·   Aboriginal and Torres Strait Islander North Queensland Branch Council Office (QNMF Branch);

   ·    Aboriginal and Torres Strait Islander South Queensland Branch Council Office (QNMF Branch);

   ·   Aboriginal or Torres Strait Islander Nurse Councillor (NSW Branch); and

   ·   Aboriginal or Torres Strait Islander Midwife Councillor (NSW Branch).

1. Alterations to the rules[33] of an organisation registered under Act do not take effect[34] unless the Commission’s General Manager[35] certifies that the alterations, in their opinion:

   ·   comply with, and are not contrary to the Act, the Fair Work Act 2009 (FW Act), modern awards and enterprise agreements; and

   ·   are not otherwise contrary to law.[36]

1. The proposed alterations reserve an office—or offices—for members who share a common attribute: race.

1. In Re: The Association of Professional Engineers, Scientists and Managers, Australia[37] (Re: APESMA) the Commission’s General Manager considered alterations which created an office which was reserved for members who share a common attribute. The office was styled “Diversity National Assembly Member”. The office was reserved for a female financial member. APESMA’s National Assembly is charged with directing the union’s policy and governing, managing and conducting its affairs.[38]

1. As the General Manager noted, three questions arose in the circumstances.

1. First, do the alterations impose on members of the organisation conditions, obligations or restrictions that are oppressive, unreasonable or unjust when regard is had to Parliament’s intention in enacting the Act and the FW Act? If the alterations do, they are contrary to s142(1)(c) of the Act. They could not be certified.

1. Secondly, are the alterations contrary to s.142(1)(d) of the Act? Section 142(1)(d) provides that the rules of an organisation:

“must not discriminate between… or members of the organisation on the basis of race… [or] sex”.[39]

1. If they are contrary to s.142(1)(d), they cannot be certified.

1. Finally, do the alterations contravene Commonwealth anti-discrimination legislation? If the alterations do, they are contrary to law within the meaning of section 159(1)(c) of the Act. They could not be certified.

1. In a later decision, the General Manager applied the conclusions reached in Re: APESMA. In Re: Construction, Forestry, Maritime, Mining and Energy Union, The Maritime Union of Australia Division[40] (Re: MUA) the General Manager was dealing with alterations which created two new offices in the CFMEU’s MUA Division:

·   Divisional Assistant National Secretary –Woman; and

·   Divisional Assistant National Secretary - Aboriginal and Torres Strait Islander.

1. The General Manager concluded:

“[23] I adopt and rely on my reasons in Re: APESMA in the present matter. It is not necessary to recite those reasons here. However, the following conclusions are apposite:

·   in connection with s.142(1)(c): By reserving an office for a woman and an Aboriginal and Torres Strait Islander financial member the alteration imposed conditions, obligations or restrictions on members of the organisation. Those conditions or restrictions were imposed to encourage women and Aboriginal and Torres Strait Islander people to nominate for office, thereby increasing the level of member participation—particularly Aboriginal and Torres Strait Islander and female member participation—in the organisation’s affairs. The alteration was also intended to ensure that the organisation was representative of its female and Aboriginal and Torres Strait Islander members. Finally, the alteration was intended to increase the diversity of persons on bodies which have policy determination and/or management functions. In each instance the alteration was consistent with and not contrary to Parliament’s intentions in enacting the Act. Consequently, the conditions, obligations or restrictions were not oppressive, unreasonable or unjust contrary to s.142(1)(c).

· in connection with s.142(1)(d): The Act provides little guidance as to what constitutes discrimination contrary to s.142(1)(d). Adopting the approach taken by Gaudron J in Street v Queensland Bar Association,[41] the General Manager concluded that the different treatment at issue was not sufficient to render the rule discriminatory. The differential treatment was relevant and appropriate to the object to be attained.

·   in terms of being contrary to law: The alteration was not otherwise contrary to law. In particular, it did not contravene the Sex Discrimination Act 1984 (Cth) (SDA) because it constituted a special measure taken “for the purpose of achieving substantive equality” in accordance with that Act.

[24] It is apt to make three further observations.

[25] First, in relation to s.142(1)(c) of the Act I note the following comments of Justice Ryan in Pillar v Building Workers Industrial Union of Australia[42] (Pillar):

“In my view, the reservation of places on a committee of management for particular categories of members does not, of itself, infringe, or discourage the democratic control of a committee of management. That is particularly true, where, as here, all members of the body are entitled to vote to fill the office for which there is a restricted candidature. Of course, there may be extreme cases where the number of offices for which candidature is restricted is out of all proportion to the numbers of persons entitled to the benefit of the restriction, or where a significant section of the membership is precluded from candidature altogether...”

…

[27] Re: APESMA’s discussion and conclusions about s.142(1)(c) also apply—on the face of it—to rule alterations which create an office reserved for an Aboriginal and Torres Strait Islander person. Justice Ryan’s comments in Pillar are also—on the face of it—relevant.[43]

[28] Given the language of s.142(1)(d) of Act, the approach taken by Gaudron J in Street v Queensland Bar Association would also apply when deciding whether a rule alteration discriminates against a member of a registered organisation on the basis of race.

[29] Part II of the Racial Discrimination Act 1975 (Cth) (RDA) renders unlawful any act involving a distinction, exclusion, restriction or preference based on race.[44] However, Part II of the RDA does not apply to  special measures.[45] The rule alterations associated with the creation of the office of Divisional Assistant National Secretary – Aboriginal and Torres Strait Islander are not contrary to law per s.159(1)(b) of the Act, if they are a special measure for the purposes of the RDA.

[30] Finally, it should not be presumed that rule alterations which introduce an affirmative action provision(s) will be certified as a matter of course. Nor, in seeking certification of an alteration, is it enough to point to the inclusion of similar provisions in the rules another organisation, or another of the applicant organisation’s branches/divisions. Regard must be had to the contemporary circumstances of the organisation, branch or division whose rule alterations fall for consideration. As the Full Court of the Federal Court pointed out in McLeish v Faure and Ors:[46]

“What may be a valid rule in one organization does not of necessity mean that such rule would be valid for another. Such validity may depend on different circumstances and conditions which may vary not only from organization to organization but within the same organization at different times.”[47]

1. I agree with the General Manager’s analysis and conclusions in Re: APESMA and Re: MUA. I adopt the findings set out above in this matter.

1. On 21 November 2024 the ANMF was invited to lodge written submissions about whether the alterations complied with and were not contrary to the Act and whether they were otherwise contrary to law.

1. The ANMF lodged written submissions about those matters on 25 November 2024. In reaching my conclusion I have had regard to all the material lodged by the ANMF. It is not necessary to recite all the material placed before me, but relevant extracts will be reproduced.

1. In relation to s.142(1)(d) of the Act the ANMF submitted, in part:

“4. Section 142(1)(d) of the Fair Work (Registered Organisations) Act 2009 (RO Act) stipulates that the rules of a registered organisation must not discriminate between applicants or members because of, among other things, race.

5.         The ANMF submits that the creation of the First Nations Offices is necessary to advance the equality of First Nations members of the ANMF.”[48]

1. They continued:

“8.         The QNMU and New South Wales (NSW) Branches of the ANMF have historically had low levels of representation amongst First Nations membership even though those members face high rates of discrimination. Currently between the two branch councils there is only one person who identifies as Aboriginal and/or Torres Strait Islander.

9.         According to the latest Australian Health Practitioner Regulation Agency (Ahpra) figures, 2.1% of nurses and midwives in NSW and Queensland identify as Aboriginal and/or Torres Strait Islander. However, in the NSW Branch only 1.37% of members identify as Aboriginal and/or Torres Strait Islander. In the QNMU Branch that figure is 1.7%. Creating the First Nations Offices will go some way to redressing this imbalance and encourage more First Nations nurses and midwives to join the ANMF and encourage such members to participate in the organisation to which they belong, fulfilling parliaments objectives

…

12.       The introduction of the First Nations Offices creates meaningful acknowledgement of Indigenous people as leaders within the ANMF and aims to advance First Nations people within the union, which is both the industrial and professional voice of nurses and midwives. It is a means for First Nations members to take part in the decision-making processes and governance of the NSW and QNMU Branches by way of an elected office.

…

14.       This affirmative action of the NSW and QNMU branches to introduce the new First Nations Offices seeks to benefit First Nation members and secure the advancement of First Nations members of the NSW and QNMU branches of the ANMF.

15.       The creation of the First Nations Offices would foster greater awareness for First Nations issues within the ANMF and nursing and midwifery industries more broadly. The creation of these offices is clearly in line with the principles spelled out in cases such as APESMA and MUA.”[49]

1. In relation to s.142(1)(c) of the Act, the ANMF referred to Ryan J’s judgment in Pillar.

1. The ANMF then submitted:

“17.       The purpose of creating First Nations offices is to enhance their participation in the activities of the ANMF, ensure the organisation reflects its First Nations membership, and promote greater diversity within the Branch Council. This aligns with, and does not contradict, Parliament's objectives in enacting the RO Act, particularly as outlined in subsections 5(3)(a), (b), and (d). The changes to the ANMF Rules do not impose the conditions, obligations, or restrictions prohibited by subsection 142(1)(c).

18.       The proposed First Nations offices are newly established, introduced in addition to the existing elected offices for the NSW and QNMU branches. The creation of these additional offices will not cause any detriment or unfairness to the broader ANMF membership or the identified branches. All current elected offices within the ANMF will remain unchanged and continue to be accessible to all eligible members.

…

19… These measures were implemented to encourage Aboriginal and Torres Strait Islander members to nominate for office. It will therefore enhance their participation in the organisation’s affairs and ensure the ANMF reflects its First Nations membership.

…

21.       The inclusion of First Nations individuals in ANMF leadership addresses the predominance of non-Indigenous representation within the nursing and midwifery sectors, fostering greater member engagement in ANMF activities.

…

22.       The alterations aim to increase diversity within bodies responsible for policy-making, decision-making and management functions of the NSW and QNMU Branches. These changes align with Parliament’s intentions in enacting the RO Act and are neither oppressive, unreasonable, nor unjust, thus not breaching s.142(1)(c) of the Act.”[50]

1. Turning to the question of whether the alterations were otherwise contrary to law, particularly anti-discrimination law the ANMF submitted:

“26. The ANMF believes the creation of the First Nations Offices are special measures under RDA. Part II of the RDA renders unlawful any act involving a distinction, exclusion, restriction or preference based on race. However, this part of the RDA does not apply to special measures. The rule alterations associated with the creation of the First Nations Offices do not contravene s.159(1)(b) of the RO Act, if they are a special measure for the purposes of the RDA.

27.       The inclusion of these four First Nations Offices reflects the ANMF's dedication to promoting equality for Aboriginal and Torres Strait Islander members and advancing First Nations people, in alignment with section 8 of the RDA.”[51]

1. Pressing for certification of the alterations, the ANMF submitted in conclusion:

“43.       Parliament’s intention in enacting the RO Act, among other things, was to “enhance the relations within workplaces between federal system employers and federal system employees and to reduce the adverse effects of industrial disputation.” The recognition and progress of First Nations people in a union and professional organisation such as the ANMF supports this objective.

44.       Individuals who identify as First Nations are often marginalised in the nursing and midwifery industries. Ensuring that First Nations voices are represented in leadership roles within the union emphasises their perspectives on workplace issues and provides unique opportunities to enhance workplace relations.

45.       The inclusion of First Nations people in union leadership positions challenges the traditional underrepresentation of diverse voices in the nursing and midwifery industries and encourages broader participation in the affairs of the ANMF. This approach to diversifying employee representation reaffirms the wording of s5(3)(b) of the Act and furthers Parliament's intention in enacting the RO Act.”[52]

1. I accept these submissions. They are persuasive.

1. The material provided by the ANMF suggests the current rules do not provide an effective pathway to the governing bodies of the QNMF and NSW Branches for Aboriginal and Torres Strait Island people. As a consequence matters of particular importance and concern to Aboriginal and Torres Strait Islander members may not be coming before the relevant Branch Councils for deliberation and action. The alterations encourage Aboriginal and Torres Strait Island people to nominate for office. Member participation—particularly Aboriginal and Torres Strait Islander member participation—in the affairs of the QNMF and NSW Branches will be enhanced as a result.

1. The alterations are designed to increase the diversity of representation on bodies which have policy determination and/or management functions. Doing so means the two branches will be more representative of its members as a whole. The MUA Division’s capacity to operate effectively is likely to be enhanced as a result.

1. I also agree with the ANMF’s submission that “alterations [which] aim to increase diversity within bodies responsible for policy-making, decision-making and management functions of the NSW and QNMU Branches… align[s] with Parliament’s intentions in enacting the RO Act”.[53]

1. In addition, the alterations are consistent with Justice Ryan’s comments in Pillar

1. The alterations are consistent with and not contrary to Parliament’s intentions in enacting the Act. The alterations impose conditions, obligations or restrictions on members. However, they do not do so in a way that is contrary to s.142(1)(c) of the Act.

1. Turning to section 142(1)(d) of the Act, the treatment that flows from the alterations is, in the circumstances, relevant and appropriate to the object to be attained. The alterations are not contrary to s.142(1)(d) of the Act.

1. I accept the ANMF’s submissions about the interaction between the alterations and the RDA. The alterations are special measures for the purposes of that Act. The alterations are not contrary to law.

1. Finally, having regard to the extract from McLeish v Faure and Ors set out in paragraph [22] above nothing before me suggests the circumstances and conditions facing the AMNF’s QNMU and NSW Branches are so different from those faced by the MUA Division that a rule found to be valid for the MUA Division would be an invalid rule for either ANMF branch.

1. No other matter arises for consideration under the Act, the FW Act, modern awards or enterprise agreements. Nor are the alterations otherwise contrary to law.

Conclusion

1. In my opinion, the alterations comply with and are not contrary to the Act, the FW Act, modern awards and enterprise agreements, are not otherwise contrary to law and were made under the rules of the organisation. I certify accordingly under subsection 159(1) of the Act.

DELEGATE OF THE GENERAL MANAGER

[1] See Rule 67.1. I note that there is also a Branch Executive, which may exercise most of the powers of the Branch Council – see Rule 78.

[2] See Rule 52.1.

[3] See Rule 65.2.1 and annual return AR2024/53.

[4] See proposed Rule 65A.6.1(d).

[5] See proposed Rule 65A.6.1(e).

[6] See proposed Rule 65A.6.1(d).

[7] See Rule 65.2.1 proposed Rules 65A.6.1(d) & (e).

[8] See Rule 182.1 and proposed Rule 82.3.

[9] So long as they have been a financial member of the ANMF for at least two years immediately prior to the date of nomination and they are attached to the QNMF Branch – see Rule 84.2.

[10] See proposed Rule 84A.2.3 and 98A.9.

[11] See proposed Rule 84A.2.4 and 98A.9. The qualifications for office associated with financiality and being attached to the QNMF branch are unchanged for both new offices – see proposed Rule 84A.2.

[12] See Rule 84.5.1.

[13] See proposed Rule 65A.1.5(g).

[14] See proposed Rule 65A.1.5(h).

[15] See proposed Rules 84A.2.5 & 84A.2.6.

[16] See proposed Rules 65A.1.3 & 65A.1.4.

[17] See proposed Rule 84A.7.

[18] See proposed Rules 93.3.

[19] Ibid.

[20] See proposed Rule 93.4.

[21] See proposed Rule 93.5.

[22] See proposed Rules 65A.1.1 and 77.1.2.

[23] See proposed Rule 65B.2.2.

[24] See proposed Rule 65B.2.3.

[25] Who are attached to the NNSW Branch and have been continuously financial members for at least one year at the time of nomination – see Rule 84B.2.

[26] See proposed Rule 84B.8.

[27] Ibid.

[28] See proposed Rules 84B.6 & 84B.7.

[29] See Rule 84.4.1.

[30] See proposed Rule 84B.9.

[31] See proposed Rule 83.3.

[32] See ss. 159(3) and 149(3) and 144(1)(a) of the Act.

[33] Other than an alteration to a registered organisation’s name or eligibility rules – see s.158 of the Act.

[34] See section 159(3) of the Act’

[35] Or the General Manager’s Delegate – see s.343A of the Act.

[36] See s159(1)(a) and (b) of the Act. The decision maker must also be of the opinion that the alterations were made under the rules of the organisation: s.159(1)(c). I deal with s159(1)(c) of the Act separately below.

[37] [2017] FWCD 4034; 10 November 2017 at paragraphs [20] – [44].

[38] APESMA Rule 17. I note National Assembly’s powers are subject to decisions made in a plebiscite of APESMA’s members  held in accordance with these Rules

[39] Section 142(1)(d) of the Act protects members of the organisation (and applicants for membership) from discrimination a number of other grounds. However, none of those grounds are presently relevant.

[40] [2022] FWCG 54; 6 September 2022.

[41] (1989) 168 CLR 461.

[42] [1994] AILR 249.

[43] Particularly in the case of the NSW Branch where all financial members will be entitled to vote in the election or the relevant office

[44] See s.9(1) of the RDA.

[45] Ibid at s.8(1). Special measures are described in paragraph 4 of Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination that entered into force on 2 January 1969 as follows:

“Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.”

[46] (1979) 40 FLR 462.

[47] [2022] FWCG 54; 6 September 2022 at paragraphs [23] – [25], [27] - [30]. Note that the extract from McLeish v Faure and Ors which appears in paragraph [30] can be found in (1979) 40 FLR 462 at 469.

[48] See the submissions lodged the ANMF on 25 November 2024 at paragraphs 4 - 5.

[49] Op cit at paragraphs 8 - 9, 12, 14 – 15.

[50] See the submissions lodged the ANMF on 25 November 2024 at paragraphs 17 – 19, 21 – 22.

[51] Ibid at paragraphs 26 – 27.

[52] Ibid at paragraphs 43 – 45.

[53] Ibid at paragraph 22.

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