Australian Principals Federation - [2013] FWCD 9412

[2013] FWCD 9412

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Australian Principals Federation
(R2013/389)
MR ENRIGHT	MELBOURNE, 12 DECEMBER 2013
Alteration of other rules of organisation.

[1] On 6 September 2013 the Australian Principals Federation (APF) lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to the rules of the Australian Principals Federation.

[2] The particulars provide for the insertion of new rules 28A and Schedule 1 into the rules of the organisation. The alterations were made for the purpose of complying with provisions of the Fair Work (Registered Organisations) Amendment Act 2012 (the Amendment Act) regarding the rules of registered organisations. In particular, the alterations provide for specified disclosures, the implementation of policies relating to expenditure and the mandatory training of officers with duties that relate to the financial management of the organisation.

[3] The rule alterations were passed in accordance with the rules of the organisation by a special meeting of the Federal Council that was held on 6 September 2013.

[4] On the information contained in the notice, I am satisfied the alterations have been made under the rules of the organisation.

[5] Regulation 126(1) of the Fair Work (Registered Organisations) Regulations 2009 (the Regulations) requires an alteration of the rules of a registered organisation to be lodged within 35 days after the alteration is made or within any additional period that the General Manager may allow. Regulation 126(3) further provides that the General Manager may refuse to certify an alteration to the rules of a registered organisation under subsection 159(1) of the Act if regulation 126 is not complied with. The notification was lodged with the Commission on 6 September 2013.

[6] Under section 36(1) of the Acts Interpretation Act 1901, a period of time expressed to begin after a specified day is not taken to include the specified day. As such it would seem that the words ‘within 35 days after the alteration is made’ in regulation 126(1) mean that the day the alteration was made is not included. This interpretation was upheld in Moon v JLG

Industries (Aust)i which considered the words ‘within 14 days after’ in s.371 of the Fair Work Act 2009. Lucev FM determined that the day of the relevant act was not included in the period

‘within 14 days after’ii. I am satisfied that for the purpose of interpreting regulation 126(1) the day the alteration is made is not included ‘within 35 days after the alteration is made’. In

[2013] FWCD 9412

this case the 35 day period therefore began on 7 September 2013 and consequently the
notification lodged on 6 September 2013 was premature.

[7] However regulation 126(1) provides me with the discretion to allow any additional period for lodgement of this notification. The words “any additional period” do not import any constraint on the timing of or on the length of the additional period; it can be “any”, including the day that the alteration…

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: [2013] FWCD 9412
Decision Date: 13 December 2013

CaseChat Overview and Summary

The Australian Principals Federation (APF) applied to the Fair Work Commission for certification of alterations to their organisational rules, as mandated by the Fair Work (Registered Organisations) Amendment Act 2012. The alterations aimed to comply with the new provisions concerning financial management and disclosure within registered organisations. The key legal issues before the court were whether the APF had complied with the regulatory requirements for notifying the Commission of these rule changes and whether the alterations were consistent with the relevant legislation.

The court determined that while the APF had lodged their notification within the stipulated 35-day period, the day of the alteration itself was not included in this timeframe. However, the General Manager had the discretion to allow an additional period for the notification. Given the APF's prompt action in lodging the notification on the day of the alteration, the court exercised its discretion to accept the notification as timely. Additionally, the court approved minor amendments to correct typographical and clerical errors in the proposed rules. The court concluded that the alterations were in compliance with the Fair Work (Registered Organisations) Act 2009 and related legislation and certified the rule changes accordingly.

The final order was that the alterations to the APF's rules, as amended, were certified under subsection 159(1) of the Fair Work (Registered Organisations) Act 2009. These alterations would take effect on 1 January 2014, aligning with the commencement of Part 2 of Schedule 1 to the Fair Work (Registered Organisations) Amendment Act 2012.

Orders