Australian Principals Federation - [2016] FWCD 4123

[2016] FWCD 4123

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Australian Principals Federation
(R2016/107)
MR ENRIGHT	MELBOURNE, 24 JUNE 2016
Alteration of other rules of organisation.

[1] On 6 June 2016, the Australian Principals Federation (the organisation) lodged with

the Fair Work Commission (the Commission) a notice and declaration setting out particulars

of alterations to the rules of the organisation.

[2] The particulars set out alterations to rules 7, 7A, 10, 11, 21, 21A, 22, 23, 28A, 33, 44,

45, 47 and Schedule 1 of the rules of the organisation. The alterations update references to

the legislation, the Fair Work Commission and its General Manager. There are minor

corrections to errors in the rules, and changes to the process for determining tied elections.

The alterations also seek to introduce an appointment process for insufficient nominations.

[3] On the information contained in the notice, I am satisfied the alterations have been

made under the rules of the organisation.

Compliance with legislation

[4] I turn now to whether the alterations comply with the Fair Work (Registered

Organisations) Act 2009 (the RO Act). In particular, I consider the insertion of proposed

subrules 22(d) and 47(23)(d) which are in similar terms and amend the existing casual

vacancy rules at branch and federal level. These two proposed rules operate once an election

has been called and ‘no person has been duly elected’ to allow that ‘a further election shall be

conducted or an appointment may be made as though a casual vacancy existed’.

[5] Section 143 of the RO Act requires, amongst other things, that the rules of an
1

organisation ‘must provide for the election of the holder of each office’.

This provision has

consistently been found to require that, excepting one situation that I will turn to below, every

office must be filled by an election.

[6] That exception is to be found in section 146 and relates to casual vacancies. Section

146 allows an organisation to make rules for appointment to a casual vacancy during the term

of office in certain circumstances. As these proposed rules would allow the organisation to
[2016] FWCD 4123

fill offices other than by election I must consider whether they fit within the casual vacancy

exception contemplated by section 146.

[7] In relation to casual vacancies, the High Court of Australia held in Vardon v

O’Loghlin:

The condition on which it comes into operation is that ‘the place of a senator
becomes vacant before the expiration of his term of service.’ This assumes a
previous election and the existence of a senator who has a ‘term of service.’ …
But if there is no senator who has a term of service, the section literally read

does not come into operation at all.

[8] Although Vardon was concerned with vacancies in the Australian Senate, it was cited

with approval in relation to elections in registered organisations under the precursor to the RO

Act. For instance, in Grove v Cameron,…

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

Case: [2016] FWCD 4123
Decision Date: 24 June 2016

CaseChat Overview and Summary

The Australian Principals Federation (APF) sought to alter various rules of the organisation, including those relating to casual vacancies, by lodging a notice and declaration with the Fair Work Commission. The Commission was tasked with determining whether these alterations complied with the Fair Work (Registered Organisations) Act 2009. The primary legal issues were whether the proposed subrules, which allowed for appointment rather than election in certain circumstances, complied with the Act and if these provisions were severable from the other alterations.

The Commission examined whether the proposed alterations to the rules, specifically subrules 22(d) and 47(23)(d), complied with the Act. It considered the requirement that every office must be filled by election, as stipulated in section 143 of the Act, with the exception of casual vacancies under section 146. The Commission concluded that the proposed rules allowing for appointments in cases of insufficient nominations did not fit the definition of casual vacancies, as they did not involve a vacancy arising during the term of an existing office holder. Therefore, the proposed insertions were deemed contrary to the Act.

On the issue of severability, the Commission found that the proposed alterations to subrules 22(d) and 47(23)(d) were independent from the other alterations. The severability was supported by the separate scheduling of these rules in the application and the fact that their removal would not affect the meaning or effect of the rules that could be certified. Consequently, the Commission certified the alterations, except for the proposed subrules 22(d) and 47(23)(d), under subsection 159(1) of the Fair Work (Registered Organisations) Act 2009.

Orders