Australian Nursing and Midwifery Federation

[2024] FWCD 1058

[2024] FWCD 1058

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

Australian Nursing and Midwifery Federation

(R2024/126)

CHRIS ENRIGHT MELBOURNE, 27 NOVEMBER 2024

Alteration of other rules of organisation.

1. On 30 August 2024 the Australian Nursing and Midwifery Federation (ANMF) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules.

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

1. The particulars:

   · insert a new rule 75A – Workplace Delegates;

   ·   insert a new subrule 75.6; and

   ·   alter subrules 28.2.3, 49.2.3, 52.4, 70.5, 75.5, and 76.13.

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

Minor alterations

1. The effect of the proposed alterations is varied. The alterations to subrules 49.2.3, 52.4, 70.5 and 76.13 are minor, they amend typographical errors and change the phrasing of “Branch Councillors” to “members of Branch Council”.

1. The alterations to subrule 28.2.3 insert the word “Tasmania” after “Northern Territory”. This reflects the changes made in my previous decision,[1] in which alterations were made for the Tasmanian Branch to hold a Biennial Conference instead of an Annual Conference.

1. The insertion of a new subrule 75.6 and alterations to subrule 75.5 relate to Job Representatives. The alterations provide that a Job Representative may be removed as a Job Representative in accordance with procedures to be determined by the Branch Council from time to time. I note that the position of Job Representative is not an office for the purposes of the Act.[2]

1. The remaining alteration, the insertion of new rule 75A, relates to the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth) (Closing Loopholes Act) which amends provisions of the Fair Work Act 2009 (Cth) (FW Act). Among other things, these amendments include rights and protections for workplace delegates.

Workplace Delegates

1. The amendments to the FW Act introduce section 350C, which afford workplace delegates with specific protections. Section 350C was further amended with effect from 26 August 2024 to extend those protections to regulated workers. Subsection (1) currently provides that:

“A workplace delegate is a person appointed or elected, in accordance with the rules of an employee organisation, to be a delegate or representative (however described) for either or both of the following:

(a)members of the organisation who work in a particular enterprise;

(b)members of the organisation who perform work for, or that has been arranged or facilitated by, a particular regulated business.”

1. Subsection 350C(3) of the FW Act provides that workplace delegates are entitled to certain rights, such as representation, communication with members and other persons entitled to be members, and access to workplace facilities.

1. I have considered rules regarding workplace delegates and the Closing Loopholes Act in a previous decision.[3] In that decision, I determined that:

   ·   a workplace delegate must be interpreted as a person who works in the enterprise or regulated business;[4]

   · rules regarding workplace delegates must not undermine the statutory scheme regarding workplace delegates set out in the FW Act;[5] and

   · rules must not purport to extend workplace delegate rights or obligations to persons who would not be so entitled under the FW Act.[6]

1. Considering the factors listed above, I am required to consider whether the alterations comply with and are not contrary to the Act, the FW Act, modern awards and enterprise agreements, and are not otherwise contrary to law.[7] While keeping these provisions in mind, I turn to the proposed alterations.

Proposed alteration Rule 75A – Workplace Delegates

1. Proposed subrule 75A.1 provides that:

…a member may be appointed or elected to be a Workplace Delegate for the purpose of the Fair Work Act 2009 for members who work in a particular enterprise, in accordance with procedures to be determined by the Branch Council from time to time.

1. It is clear from the proposed alteration that a person appointed as a workplace delegate would be a person who works in the enterprise or regulated business, and therefore is in alignment with the statutory scheme regarding workplace delegates as set out in the FW Act.

1. The following proposed subrule, subrule 75A.2, however, raises a question regarding whether the rule purports to extend workplace delegate rights or obligations to persons who would not be so entitled under the FW Act.

Proposed subrule 75A.2 – does it extend to employees whose employment is not covered by the FW Act?

1. Proposed subrule 75A.2 inserts a table and states that:

A member in a Branch set out in Column B appointed or elected, in accordance with the rules of the state registered union set out immediately opposite in Column A, to be a delegate or representative (however described) for members of the state registered union who work in a particular enterprise is appointed to be a Workplace Delegate for the purpose of the Fair Work Act 2009 for members in the Branch who work in that enterprise:

Column A – State Registered Union

Column B - Branch

Queensland Nurses and Midwives’ Union of Employees

QNMU

The Australian Nursing Federation, Industrial Union of

Workers Perth

Western Australia

Australian Nursing and Midwifery Federation (SA Branch)

South Australia

New South Wales Nurses and Midwives’ Association

New South Wales

1. On the face of the rule, it appears that the subrule could be capable of extending to ANMF public sector members directly employed by State Government Departments in State public hospitals, among other things. It is my understanding that these employees would not be covered by the FW Act. If the rule were to extend the rights and obligations of workplace delegates to a person who would not be entitled to the protections under the FW Act, this would be contrary to law and could not be certified. The ANMF were invited to make submissions regarding this issue.

1. In their submissions, the ANMF stated that:

“The purpose of sub-rule 75A.2 is to ensure that a member who works in the private sector in branches such as QNMU Branch can easily be recognised as a Workplace Delegate under the ANMF Rules. It does not extend beyond employees whose employment is covered by the FW Act. It does not cover workers under the various state IR Acts.”[8]

1. I accept these submissions. If it is possible that the rule could be interpreted to capture employees not covered by the FW Act, the rule would need to be read down to apply only to National system employees or employees whose employment is covered by the various State referral legislation, as the rule could only apply to employees who are provided these rights and protections by law. I am satisfied that proposed subrule 75A.2 does not undermine the statutory scheme relating to workplace delegates as it does not extend the rights and obligations of workplace delegates to persons outside the scope of section 350C of the FW Act.

Proposed subrule 75.A.3 – does it impose oppressive, unreasonable or unjust conditions on members?

1. Proposed subrule 75A.3 states:

Subrule 75A.2 will not apply if:

75A.3.1     Branch Council decides otherwise;

75A.3.2 The member has notified the Branch in writing before the appointment that they do not accept the appointment; or

75A.3.3 The state registered union does not notify the Branch in writing of the name and enterprise of a delegate or representative (however described) within 28 days of their appointment or election in accordance with the rules of the state registered union.

1. The general requirements for rules of an organisation are listed in section 142 of the Act. Subsection 142(1)(c) specifies that rules must not impose conditions, obligations or restrictions that, having regard to, among other things, Parliament’s intentions and the objects of the Act, are oppressive, unreasonable or unjust.[9]

1. Subrule 75A.2, as highlighted above, provides for an appointment system for workplace delegates. Two potential issues arise with proposed subrules 75A.3.1 and 75A.3.3. First, the proposed alteration does not seem to include a method of informing state-based appointees if they are workplace delegates. If certified it may give rise to unintended consequences for the member who is acting under a misapprehension that they have the protections afforded to workplace delegates by the FW Act. Secondly, the lack of clarity regarding notification to a workplace delegate in subrules 75A.3.1 and 75A.3.3 might lead to a conclusion that the proposed rule is so vague or uncertain as to impose oppressive, unreasonable or unjust conditions on members.

1. The ANMF provided submissions addressing these concerns. The ANMF stated that:

“The Rules concerning state-based appointees will only be relevant to QNMU Branch (and its counterpart Queensland Nurses and Midwives’ Union of Employees [QNMU]) and the South Australia Branch of the ANMF (and its counterpart Australian Nursing and Midwifery Federation SA Branch [ANMFSA]). Victoria, Northern Territory, Australian Capital Territory and Tasmania branches do not have state-based equivalents. Western Australia and New South Wales do not have workplace representatives in their rules. It is in the interests of branches to have processes in place to ensure that potential Workplace Delegates have the protections of s350C of the FW Act.”[10]

1. The ANMF submitted the following case law regarding the legal context of what is oppressive, unreasonable or unjust conditions:

“In Brown v Health Services Union [2012] FCA 644 at [83], Flick J noted:

In respect to the former s 140(1)(c) in Municipal Officers’ Association of Australia v Lancaster (1981) 54 FLR 129 at 164-165 Deane J concluded that the phrase “oppressive, unreasonable or unjust” was used objectively and that no mandate was conferred upon a Court to simply rewrite rules by reference to what it perceived to be “preferable, desirable or ideal”.  His Honour there observed:

The constraints and restrictions imposed, by positive and negative requirements of the Act and regulations, upon the freedom of the members of an organisation to select, for themselves, the rules which they consider appropriate for their particular organisation, are real and significant. It cannot, however, be too strongly stressed that, subject to those constraints and restrictions, the content of the rules of a registered organisation is primarily a matter for the members…

Those three words [oppressive, unreasonable or unjust] are used objectively in the clause and each of them is to be given its ordinary strong meaning. Plainly, their meanings overlap and definition is liable to adulterate the strength which the words possess. Nonetheless, it seems desirable that I indicate the meanings which I ascribe to them. To be oppressive, a condition, obligation or restriction must be burdensome, harsh and wrongful. To be unreasonable it must be immoderate and inappropriate. To be unjust it must be contrary to right and justice and to ordinary standards of fair play. (Emphasis added)

These observations were approved in Moffitt v Vehicle Builders Employees’ Federation of Australia (1985) 11 IR 174 at 175. Similar words were employed in s 196(c) of the Workplace Relations Act1996 (Cth) and were similarly construed: Woolgar v O’Neill [2001] FCA 1149 at [34], 108 IR 58 at 64 per Sackville J; Kingham v Sutton (No 3) [2001] FCA 1117 at [58] per Goldberg J.

In Butler v CEPU [2012] FCA 790 at [23] (Butler) Jago J stated:

The question of oppression, unreasonableness or unjustness must involve a practical consideration of the substantive effect of the rule, not merely in isolation but in the context of the rules as a whole. Moreover, it would be surprising if the substantive questions were to be answered by reference to the form of the rule as opposed to its substance. (Emphasis added)

In Independent Education Union of Australia [2024] FWCD 1019 (IEUA), Delegate Enright recently stated (quoting authorities such as above):

[51] … My considerations are limited to whether 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 agree with the Branch that the potential unintentional consequences of an alteration, or whether an organisation could enact a more preferable, desirable or ideal rule are not relevant considerations under section 159.”[11]

1. The ANMF further submitted that:

“Concerning sub-rule 75A.3.1, this rule means that Branch Councils can decide to pass a motion to not use the process in sub-rule 75A.2 at all. A Branch may wish to not avail itself of the process available. It is not applied on a member-by-member basis.

Concerning sub-rule 75A.3.3, the ANMF respectfully submits that this rule is not vague or uncertain. It stipulates a process to be used to ensure that ANMF members will have protection under the FW Act. ANMF branches will need to put in place procedures to ensure that their members are notified, because a member purporting to exercise powers under s350 of the FW Act will be assisted by their ANMF branch. Potential unintentional consequences of an alteration, or whether ANMF could enact a more preferable, desirable or ideal rule are not relevant considerations under section 159 of the RO Act, as stated in IEUA.

A rule may not be oppressive, unreasonable or unjust, however, by its application it can become oppressive, unreasonable or unjust (see Butler). If there is an application, or proposed application in which the rule would be used oppressively, unreasonably or in an unjust manner, then members have recourse under section 164A of the RO Act.

Sub-rule 75A.3.3 must be read in the context of the of the rules as a whole, per Butler. The Objects of the ANMF include improving “…the industrial and statutory rights and benefits of members” and representing “…members in industrial disputes and in relation to industrial matters.” (rule 3) Branches will fulfill those obligations by ensuring that members are advised of their status concerning whether they are a Workplace Representative under rule 75A of the ANMF Rules or not.”[12]

1. I accept these submissions. My considerations are limited to whether 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 agree with the ANMF that whether an organisation could enact a more preferable, desirable or ideal rule is not a relevant consideration under section 159.

1. Furthermore, the submissions made by the ANMF confirm that the Branches will ensure that members are properly advised of their status under rule 75A, which will address any uncertainty regarding the rules. In these circumstances it may be considered unlikely that the event would arise where a member would not be properly informed of their status under rule 75A. I am satisfied that proposed subrule 75A.3 does not impose conditions, obligations or restrictions that, having regard to Parliament’s intentions and the objects of the Act, are oppressive, unreasonable or unjust.

Proposed subrules 75A.4 and 75A.5

1. Subrule 75A.4 states that:

All Workplace Delegates shall be and shall remain at all times subject to the control and direction of the Branch Council and the Branch Secretary. A Workplace Delegate may be removed as a Workplace Delegate in accordance with procedures to be determined by the Branch Council from time to time.

1. Lastly, subrule 75A.5 provides that:

Branch Council may make, vary and repeal by-laws for the regulation of Workplace Delegates. All Workplace Delegates shall exercise their rights under the Fair Work Act 2009 (including any rights under a fair work instrument) in accordance with those by-laws.

1. These provisions appear to be designed to regulate the relationship between the ANMF and the workplace delegate. These seem to be acceptable and are not controversial.

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] Re Australian Nursing and Midwifery Federation [2024] FWCD 1016.

[2] Submissions from the Australian Nursing and Midwifery Federation, 13 November 2024.

[3] Re Independent Education Union of Australia[2024] FWCD 1019.

[4] ReIndependent Education Union of Australia[2024] FWCD 1019 at [37].

[5] Re Independent Education Union of Australia[2024] FWCD 1019 at [18].

[6] Ibid.

[7] Subsection 159(1) of the Act provides that:

(1)An alteration of the rules (other than the eligibility rules) of an organisation does not take effect unless particulars of the alteration have been lodged with the FWC and the General Manager has certified that, in his or her opinion, the alteration:

(a) complies with, and is not contrary to, this Act, the Fair Work Act, modern awards and enterprise agreements; and

(b)  is not otherwise contrary to law; and

(c)  has been made under the rules of the organisation.

[8] Submissions from the Australian Nursing and Midwifery Federation, 13 November 2024.

[9] Subsection 142(1)(c) of the Act provides that rules:

…must not impose on applicants for membership, or members, of the organisation, conditions, obligations or restrictions that, having regard to Parliament’s intention in enacting this Act (see section 5) and the objects of this Act and the Fair Work Act, are oppressive, unreasonable or unjust.

[10] Submissions from the Australian Nursing and Midwifery Federation, 13 November 2024.

[11] Ibid.

[12] Ibid.

Printed by authority of the Commonwealth Government Printer

<PR780536>