Australian Nursing and Midwifery Federation - [2018] FWCD 659

[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Australian Nursing and Midwifery Federation [2018] FWCD 659
Case: [2018] FWCD 659
Decision Date: 1 FEBRUARY 2018

CaseChat Overview and Summary

The matter before the Fair Work Commission involved a dispute between the Australian Nursing and Midwifery Federation and the Department of Health. The union sought to alter the rules of the organisation to include provisions concerning the employment of agency nurses and midwives, while the department opposed the proposed changes. The Fair Work Commission was tasked with determining whether the union had the right to make these amendments to the rules. The legal issues at hand centred on the union's authority to alter the rules and whether the proposed changes were consistent with the organisation's constitution and the Fair Work Act. The union argued that the changes were necessary to address emerging employment practices, while the department contended that the union had overstepped its authority and that the proposed changes were not in the best interests of the organisation. The Fair Work Commission found in favour of the union, ruling that the proposed changes to the rules were permissible. The commission emphasised that the union had the right to propose amendments to the rules in line with the organisation's constitution and the provisions of the Fair Work Act. The commission also noted that the changes were reasonable and in the best interests of the union members. Consequently, the union was authorised to implement the proposed alterations to the rules of the organisation. The Fair Work Commission's decision underscores the importance of adhering to the proper procedures when seeking to amend organisational rules, while also recognising the need for flexibility to adapt to changing circumstances.

Orders