Australian Nursing and Midwifery Federation
[2018] FWCD 659
•1 FEBRUARY 2018
| [2018] FWCD 659 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Australian Nursing and Midwifery Federation
(R2017/169)
| MURRAY FURLONG | MELBOURNE, 1 FEBRUARY 2018 |
Alteration of other rules of organisation.
On 26 July 2017 the Australian Nursing and Midwifery Federation (ANMF) lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to its rules.
The particulars set out the insertion of new rules 65B, 84B and 85B of the rules of the ANMF and alterations to rules 49, 83 and 85.
On the information contained in the notice, I am satisfied the alterations have been made under the rules of the organisation.
The alterations entail several significant changes pertaining to offices within the New South Wales Branch of ANMF including the manner in which they are elected. I shall discuss each of those changes in turn below.
Changes to the composition of the Branch Council
Amongst other things, the alterations change the composition of the Branch Council and Branch Executive of the New South Wales Branch (the Branch Council).
Presently, the Branch Council is constituted under Rule 65 of the rules of the ANMF. It consists of:
· The “Branch Officers”: Branch President, Branch Vice President, Branch Secretary and Branch Assistant Secretary (if any);
· 4 Branch Executive Members; and
· No fewer than 5 or more than 20 remaining Branch Councillors as determined by each Branch Council.
I note that the then Delegate of the General Manager, Mr Enright, arranged for the conduct of an election of 15 Branch Councillors within the New South Wales Branch pursuant to s. 189(3) of the Fair Work (Registered Organisations) Act 2009 (the Act) in his decision of 3 May 2016.[1]
Rule 65 falls within Chapter 10 of the ANMF rules and is therefore a Standard Branch Rule. Sub-rule 52(2) states:
Subject to this Rule each Branch shall be governed by the Standard Branch Rules of these Rules. Each Branch Council shall subject to the Workplace Relations Act and the Rules of the Federation have power to modify the Standard Branch Rules in relation to that Branch. Any such modification shall not be inconsistent with any of the Rules of the Federation and shall be part of those Rules and shall form part of the Standard Branch Rules of these Rules.
The New South Wales Branch has chosen to modify the Standard Branch Rules in relation to its Branch by changing the constitution of the Branch Council so it will instead consist of
· 21 Branch Councillors from amongst whom shall be elected the Branch President, Branch Vice President and 6 Branch Executive Members; and
· The Branch Secretary and the Branch Assistant Secretary.
This compositional change will take effect from the next scheduled elections within the New South Wales Branch in 2018.
As can be seen, the overall number of offices that make up the Branch Council will continue to be 21. However, the mix of offices on the Branch Council will change. There will be two additional Branch Executive Members (from 4 to 6) and two fewer ordinary Branch Councillors (from 15 to 13).
Provided it complies with the requirements of the Act, the regulations and its rules, an organisation is generally free to “mould its internal structures as it thinks fit”[2]. In my view, the change to the composition of Branch Council is consistent with those requirements. I am satisfied that it will not have an oppressive, unreasonable or unjust effect on members or applicants for membership within the meaning of s. 142(1)(c) of the Act.
As noted above, the alterations mean the number of ordinary Branch Executive members will increase from 4 to 6. This constitutes a sub-rule 52(2) modification of the standard Branch Executive set out Rule 77. I recommend the ANMF consider further alterations to make plain this modification, as have been done in the remainder of these alterations and has been done in respect of the Queensland Branch in Rule 77.
Change of electoral system
A further change is that the offices of Branch President, Branch Vice President and Branch Executive Member will be elected by and from the Branch Councillors via a one-tier collegiate electoral system. This differs from the manner in which they are currently elected in the New South Wales Branch, namely, directly by the financial members.
Section 143(1) of the Act provides:
The rules of an organisation:
(a) must provide for the election of the holder of each office in the organisation by:
(i) a direct voting system; or
(ii) a collegiate electoral system that, in the case of a full-time office, is a one-tier collegiate electoral system…
The terms “collegiate electoral system” and “one-tier collegiate electoral system” are defined in s. 6 of the Act. I am satisfied that the manner in which the offices of Branch President, Branch Vice President and Branch Executive Member are to be elected conforms to the definition of a “one-tier collegiate electoral system”[3] in the Act and, therefore, that this aspect of the alterations complies with the Act.
I note that the offices of Branch Secretary and Branch Assistant Secretary will continue to be directly elected and the Branch Councillors, which constitute the electoral college, will also continue to be elected directly.
Truncation of terms of office
One effect of new Rule 83.2.2 is that the terms of office of the current Branch Secretary and Branch Assistant Secretary expire when their successors assume office after the scheduled 2018 elections in the New South Wales Branch. But for the rule changes, the current Branch Secretary and Branch Assistant Secretary would have held office until 30 November 2020.[4] Therefore the term of office of the incumbent officers will be truncated.
The ANMF advised that the purpose behind this aspect of the alterations is to align the elections within the New South Wales Branch with those of its relevant State counterpart, the New South Wales Nurses and Midwives' Association, which is an association registered under the Industrial Relations Act 1996 (NSW).
The alterations explicitly provide for this truncation of office, thereby overcoming the rebuttable presumption that rule alterations which change the length of an office’s term apply only to terms which commence after the alteration has been certified.[5]
On 7 August 2008, the ANMF filed declarations from the current New South Wales Branch Secretary and Assistant Secretary which stated:
I understand the effects of the Rule alterations to my term of office, in particular the truncation of my term of office to 2018 elections and thereafter four yearly elections.
In the circumstances, I am therefore satisfied that this aspect of the alterations represents a good faith exercise of the rule altering procedures of the ANMF and that the alterations have been made for a proper purpose.
Increases of terms of office
The alterations also increase the terms of office of the Branch President, Branch Vice President, Branch Executive Members and Branch Councillors from two to four years. The new terms of office begin when the relevant officers take up office following the scheduled elections in 2018. This increase in the terms of office is consistent with s. 145(1) of the Act and does not operate retrospectively. There is nothing in the Act or associated case law that would lead me to refuse certification.
Conditions or restrictions on nomination
The last matter that falls for consideration is the insertion of rule 84B which prescribes qualifications for nomination for the offices of Branch Secretary, Branch Assistant Secretary and Branch Councillor. The proposed rule mirrors the existing prescribed qualifications set out in rules 84.1 and 84.2 and provides that at the time of nomination, a candidate for those offices must have been a member of the New South Wales Branch and continuously a financial member of the ANMF for a period of 1 year (in the case of a Branch Councillor) or 2 years (in the case of the Branch Secretary and Branch Assistant Secretary).
The leading decisions regarding the imposition of conditions or restrictions on members nominating for office include Leveridge v Shop, Distributive and Allied Employees Association (1977) 32 FLR 385, Allen v Townsend (1977) 31 FLR 431, Lovell v Federated Liquor and Allied Industries Employees’ Union of Australia (1978) 35 FLR 72 and Doyle v Australian Workers’ Union (1986) 68 ALR 591. From those authorities, the following principles can be distilled:
· The Act does not require that all financial members are to be given an automatic right to stand for office;
· A rule prescribing a membership qualification for aspirants to office within an organisation is not necessarily oppressive or unreasonable;
· In determining whether the imposition of such conditions or restrictions are oppressive or unreasonable, everything must depend upon the circumstances of the case including the purpose and extent of the restriction, the identity and duties of the officers to which it applies, the extent and complexity of the affairs of the organisation and the proportion of members barred from office by the rule;
· Section 142(1)(c) of the Act requires that, amongst other objects and purposes, the participation by members in the affairs of an organisation and the democratic functioning and control of organisations are to be taken into account in determining whether a rule imposes a condition, obligation or restriction that is oppressive, unreasonable or unjust; and
· Section 142(1)(c) does not provide, explicitly or impliedly, that a rule shall not in any way abridge or impair the rights or opportunity of a member to participate in the affairs of the organisation. It proceeds on the basis that there may be considerations according to which it is proper to have regard to any such abridgement or impairment as reasonable. The only relevant considerations in this regard are those going to the good government of the organisation.
In light of those authorities, the qualifications to candidature set out above do not operate in an oppressive, unreasonable or unjust manner for the purposes of s. 142(1)(c) of the Act. The time periods in which a candidate must have been a financial member of the ANMF appear to be proportionate and reasonable given the nature of the relevant offices.
On 18 September 2017, the ANMF gave consent, under s. 159(2) of the Fair Work (Registered Organisations) Act 2009, 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:
· Sub-rules 65B.2.1 and 65B.4 have been indented in line with the other sub-rules of proposed rule 65B;
· The reference to “Rule 64A” as it appears in the alteration to sub-rule 83.3 has been omitted and replaced with a reference to “Rule 65A”;
· The words “new south wales” have been capitalised in the title of rules 65B and 85B;
· The term “Returning officer” as it appears in proposed rule 85B has been omitted and replaced with the term “Returning Officer”.
In my opinion, the alterations comply with and are not contrary to the Act, the Fair Work Act 2009, modern awards and enterprise agreements, and are not otherwise contrary to law. I certify accordingly under s. 159(1) of the Act.
DELEGATE OF THE GENERAL MANAGER
[1] Australian Nursing and Midwifery Federation [2016] FWCD 2748.
[2] Imlach v Daley [1985] FCA 13; (1983) 7 FCR 457.
[3] See for instance Sherrif v Townsend [1980] 48 FLR 20.
[4] See subrule 83(3) and E2016/129.
[5] See for instance Beeson v Blayney (1966) 8 FLR 292
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