Australian Principals Federation
[2016] FWCD 4123
•24 June 2016
[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
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| 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
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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, after consideration of the decision in Vardon, the Full
Federal Court of Australia stated:
An extraordinary vacancy cannot occur where no person has been elected and
no person has ever had a term of service. Accordingly the extraordinary
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vacancy provision does not apply.
[9] It follows that a vacancy in an office arising as a consequence of insufficient
nominations in an earlier election does not fit the definition of a casual vacancy and therefore
is not within the situation contemplated by section 146 of the RO Act.
[10] In my opinion, the proposed insertion of subrules 22(d) and 47(23)(d) is contrary to
the requirement in section 143 that every office is filled by an election. As these subrules are
contrary to the RO Act, I refuse to certify the proposed subrules 22(d) and 47(23)(d).
Severability
[11] I must now consider whether the alterations that are not certifiable are capable of
being severed from the remainder of the alterations. As I have discussed in previous
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| decisions, | the question of severability turns upon whether or not the relevant alterations are |
completely independent of the remaining alterations. I am also required to be satisfied that
the removal of the impugned alterations would not affect the meaning or effect of the rules
that can be certified.
[12] I note these two particular subrules appear separately, in Schedule B of the particulars,
to the remainder of the alterations in the application. The remainder of the alterations are
contained in Schedule A of the particulars and seek to correct concerns raised by the
Australian Electoral Commission in E2015/167, minor errors and outdated references to
legislation and entities. In my opinion, the proposed alterations to subrules 22(d) and
47(23)(d), pertaining as they do to insufficient nominations, are unrelated to the alterations in
Schedule A and their removal will not affect the meaning or effect of the rules that can be
certified.
[2016] FWCD 4123
[13] I consider subrules 22(d) and 47(23)(d) severable from the remaining proposed rules.
[14] On 24 June 2016, the Commission received consent from Ron Bamford, President,
under subsection 159(2) of the Fair Work (Registered Organisations) Act 2009, for me to
make various amendments to the alterations for the purpose of correcting typographical,
clerical or formal errors. Accordingly I have corrected the references to Fair Work
(Registration of Organisations) Regulations to read Fair Work (Registered Organisations)
Regulations wherever appearing in the alterations.
[15] In my opinion, the alterations, excepting the insertion of subrules 22(d) and 47(23)(d),
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
<Price code A, PR581987>
1
Section 143(1)(a) Fair Work (Registered Organisations) Act 2009.
2
Vardon v O’Loghlin [1907] 5 CLR 201 at 211.
3
Grove v Cameron [1972] 21 FLR 59 at 68.
4
See Screen Producers Association of Australia [2014] FWCD 1821 at paras [81] – [83].
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