Australian Nursing and Midwifery Federation
[2020] FWCD 2451
•27 may 2020
| [2020] FWCD 2451 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Australian Nursing and Midwifery Federation
(R2020/30)
| MURRAY FURLONG | MELBOURNE, 27 may 2020 |
Alteration of other rules of organisation.
On 6 March 2020, the Australian Nursing and Midwifery Federation (ANMF) lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to the rules of the ANMF.
The particulars set out various alterations to the rules 3, 6, 8, 9, 10, 11, 13, 14, 16, 18, 23, 24, 26, 27, 28, 30, 31, 32, 33, 34, 35, 36, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 56, 58, 59, 61, 63, 64, 65, 65A, 65B, 66, 67, 68, 69, 70, 71, 72, 73, 74, 76, 78, 79, 80, 81, 82, 83, 84, 85, 85A, 85B, 86, 87 and 88 of the rules of the ANMF. The particulars also set out the deletion of rule 15 and the insertion of new rule 49A.
In accordance with rules 18 and 43, the alterations were made by the Federal Council in a vote conducted of its members which concluded on 28 February 2020.
Sub-rule 43.2.2 provides as follows:
The provisions of…Rule 40 in relation to any Branch shall not be repealed and shall not be amended or in any way altered without the consent of the Branch Council of that Branch.
As noted above, the notice of particulars in this matter includes alterations to rule 40.The effect of those alterations is merely to replace the word “Rule” with the word “rule” and is of general application rather than particularly or directly affecting any specific Branch or Branches. Rule 40 itself deals with the execution of industrial agreements.
On 7 April 2020, the Fair Work Commission wrote to the ANMF seeking clarification of the effect of sub-rule 43.2.2.
In its response of 28 April 2020, the ANMF submitted that sub-rule 43.2.2 does not have the effect that all Branch Councils must approve every change to rule 40. In this regard, the evident purpose of sub-rule 43.2.2, construed together with rule 40, is to ensure that a Branch’s rights to conclude agreements is not interfered without the consent of that Branch. The ANMF stresses the importance of the words “in relation to any Branch” and the use of the singular in the phrase “the consent of the Branch Council of that Branch” as important qualifications with respect to the operation of sub-rule 43.2.2. This can be contrasted with the language used in sub-rules 4.4, 14.1.6 and 41.1.4 which explicitly require the consent of all Branch Councils to any relevant change. In essence, the ANMF’s view is that the effect of rule 43.2.2 is that alterations to rule 40 applying to a specific Branch requires the consent of the relevant Branch Council.
I accept the ANMF’s interpretation of the operation of sub-rule 43.2.2 and, on the information contained in the notice, I am satisfied the alterations have been made under the rules of the ANMF.
The alterations to rules 14.1 and 24.1 specify that the Federal Executive rather than the Federal Council shall be the committee of management of the ANMF.
The alterations to rules 47 and 48 include changing the frequency of elections for the offices of Federal President and Federal Vice-President from two to four years commencing in 2023 and extending the term of the current holders of those offices from two to four years in order to synchronise the elections of those offices with the elections for the offices of Federal Secretary and Federal Assistant Secretary to be conducted in 2023. In my view, these alterations are consistent with s. 145 of the Fair Work (Registered Organisations) Act 2009 (the Act).
New sub-rule 83.2 provides that a Branch Council (other than the QNMU and New South Wales Branch Councils) may resolve to increase the term of office of Branch President and Branch Vice President from two to four years or that the term of office may revert back to two years. New sub-rule 85.7 has been made as a consequence of this alteration.
The alterations to rule 49 include specifying that the returning officer for elections for office will conduct a preliminary scrutiny of returned declaration envelopes by removing them from prepaid envelopes and examining the declaration flap or label for the purposes of marking off the voter’s name against the roll of voters. The alterations to rule 49 also fix a time period for the closing of a ballot.
New sub-rule 41.2 provides that any civil penalties imposed upon the ANMF under the Act or the Fair Work Act 2009 and associated costs arising from a contravention (or alleged contravention) by a Reporting Unit constituted by a Branch shall be the responsibility of that Branch. In this regard, if any such penalties or costs are paid from the funds of the Federal Council, the amount paid will be a liability of the Branch to the Federal Council.
The alterations to sub-rules 46.1 and 84.4 clarifies that a nomination for election to office within a Branch must be signed by the nominee in addition to the three financial members endorsing the nomination and provides a mechanism for candidates to withdraw their nomination.
The alterations to rules 6 and 8 pertain to applications for membership and membership subscriptions and the waiver of such subscriptions respectively.
The alterations to sub-rules 18.5 and 26.3 facilitate the conduct of meetings of the Federal Council and the Federal Executive by video link and the alterations to sub-rules 18.6, 26.4 and 27.2 provide for the giving of notice by email in addition to the other methods already listed therein.
The notice of particulars also sets out the deletion of rule 15 which provided for the establishment of Special Interest Groups the representatives of which could act in a consultative capacity before the governing bodies of the ANMF and its Branches.
The further alterations set out in the notice of particulars include those which:
- Amend gender references;
- Make minor formatting changes and corrections;
- Update references to the relevant legislation and statutory agencies and officers; and
- Update references to the relevant state registered counterparts of the ANMF.
In its correspondence of 28 April 2020, the ANMF sought to withdraw the proposed insertion of new rule 49A and the associated alterations to sub-rules 85.4.1 and 86.1. Those alterations pertain to the provision of electronic voting of the membership of the ANMF including for the purpose of elections for office. I am satisfied that those alterations are severable from the other alterations set out in the notice of particulars in light of the principles set out by the majority in Re Food Preservers’ Union of Australia (1988) 79 ALR 138.1 In particular, I am satisfied that the remaining alterations operate independently of those alterations and their severance will not affect the meaning and effect of the remaining alterations.
On 28 April 2020, the ANMF gave consent, under subsection 159(2) of the Act, for the Delegate to make an amendment to the alterations for the purpose of correcting a typographical, clerical or formal error. Accordingly the following correction has been made:
- The words “shall , otherwise” in sub-rule 47.6 has been omitted and replaced with the words “shall, otherwise”.
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
Printed by authority of the Commonwealth Government Printer
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