Australian Rail, Tram and Bus Industry Union

[2023] FWCD 34

[2023] FWCD 34

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

Australian Rail, Tram and Bus Industry Union

(R2023/121)

CHRIS ENRIGHT MELBOURNE, 22 DECEMBER 2023

Alteration of other rules of organisation.

1. On 16 November 2023 the Australian Rail, Tram and Bus Industry Union (the Union) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules. Further information in support of the application was provided 13 December 2023.

1. The Union seeks certification of the alterations under s.159 of the Fair Work (Registered Organisations) Act 2009 (the Act).

1. On the information contained in the notice and declaration, I am satisfied the alterations have been made under the rules of the organisation.

1. The particulars relevantly set out alterations to the following rules:[1]

   ·     Rule 2 – Registered Office;

   ·     Rule 6 – Structure and Organisation;

   ·     Rule 28 – National Council;

   ·     Rule 69 – General Obligations of Office Bearers and Action in Relation Misconduct;

   ·     Rule 98 – Composition and Ordinary Meetings of the Branch Council;

   ·     Rule 144 – Composition and Ordinary Meetings of the Branch Council;

   ·     Rule 157 – Composition and Ordinary Meetings of the Branch Council.

1. The particulars also delete the following rules,

   ·   Part XV – West Australian Branch – deleted;

   ·   Part XVI – West Australian PTA Branch – deleted.

1. Finally, the alterations insert the following rules:

   ·   Part XIIIA – Tasmanian Branch: Special Provisions; and

   · Rule 149B – Transitional: Tasmanian Branch.

1. The alterations fall into three broad categories.

1. First, the alterations to Rules 2, 28, 69, 98, 144 and 157 are technical changes which relate to regular management of the Union. They:

   ·    update the Union’s office address;

   ·   clarify the cut-off time for calculating the number of delegates each branch or division is entitled to on various collective bodies in the Union and its branches; and

   ·   modernise and/or clarify aspects of the Union’s internal disciplinary procedure.

1. Secondly, the alterations to Rule 6 and the deletion of Part XV and Part XVI deal with the Union’s operations in the State of Western Australia.

1. Until recently, the Union had two branches in the State of Western Australia: the West Australian Branch and the West Australian PTA Branch. Members of the Union were allocated to one branch or the other according to their place of employment.

1. The two former branches were subsequently merged to create the Western Australian Branch.[2]

1. The proposed alteration to Rule 6 clarifies that all members whose usual place of work is located within the State of Western Australia are attached to the Western Australia Branch.

1. Parts XV and XVI set out the rules that governed the former West Australian Branch and the West Australian PTA Branch. They are redundant.

1. Finally, the proposed insertion of Part XIIIA and Rule 149B prospectively restructure[3] the Union’s Tasmanian Branch.

1. The alterations in the first two categories are uncontroversial. They do not require comment beyond expressing and certifying my opinion about the matters set out in s.159(1) of the Act. I do so below.

1. On the other hand, the proposed alterations that restructure the Tasmanian Branch warrant discussion.

Are the proposed insertion of Part XIIIA (or any of the rules therein) and Rule 149B contrary to the Act or otherwise contrary to law?

1. The proposed alterations flatten the Branch management structure. Currently there is a Branch Council, which is the highest deliberative body in the Branch[4] and a Branch Executive. The Branch Council will be abolished by the alterations and its powers and duties will be given to the Branch Executive. [5] Sub-branches will also be abolished.[6] In addition, a number of offices in the Branch will be abolished[7] and all offices will be unpaid.[8] Finally, from 1 January 2024, the National Executive will assume the powers, duties and functions related to the exercise of the financial responsibility and management of the Branch.[9]  

1. The following principles are relevant to the restructure of organisations:

   ·   an organisation is able to determine its internal structures as it thinks fit, provided it complies with the Act and its rules;[10]

   ·   if an organisation seeks to abolish an office mid-term the abolition must be effected in accordance with the rules and must be bona fide;[11]

   ·   any abolition of office must not have an oppressive, unreasonable or unjust effect on members or applicants for membership (in the plural) having regard to the objects of the legislation.[12]

1. These principles indicate that the alterations should be certified unless they are found to be not bona fide or have an oppressive, unreasonable or unjust effect on members.

1. On the issue of bona fides, I also note General Manager Furlong’s comments in Re: Australian Municipal, Administrative, Clerical and Services Union:[13]

“[T]he restrictions on rules that provide for removal from office[14] do not apply when an office is abolished, provided that the alteration is made for a bona fide purpose.[15] In this regard, I accept the ASU’s submission that:

“A rule change may occur to affect the abolition of an office. The abolition of an office must, however, be bona fide, that is it should not be directed at an individual’s removal and should, in that sense and as a minimum, be transparent.[16] It must also be a change that does not impact negatively on responsible management. As Boland J stated in Re – Application by USU for alteration of Rules, ‘one has to consider…what effect the rule change would have on the democratic control…and whether it encouraged responsible management’.”[17]

1. In support of this application and the related application currently before the Commission’s General Manager under s.246 of the Act,[18] the Union’s Tasmanian Branch Secretary stated:

“For the financial year ending 31 December 2022, the expenditure of the branch was $176,111 and its income was $143,510.

…

There have been no significant changes since that time and our membership numbers remain stable at about 260 members.

To my knowledge there is no prospect in the near future of ensuring that the Tasmanian Branch is financially viable in and of itself

…

The National Office of the RTBU is already providing people resources to assist in managing the industrial activities of the Tasmanian Branch and therefore merging financial reporting units would be a natural fit for the finances of the Tasmanian Branch

...

Further, the rule changes [currently before me]… restructure the branch effective at the next general Election to a structure which supports the Branch's size and composition.”[19]

1. Similarly, the Union’s National Secretary submits:

“The Tasmanian Branch of the ARTBIU is not financially viable as a stand-alone financial reporting unit as its income, with a mere 260 members, is less than its expenditure. At present, there is no identifiable way in the foreseeable future that this situation will change.

…

The financial position of the Tasmanian Branch is well articulated by the current Tasmanian Branch Secretary, Ric Bean, in his correspondence dated 31 October 2023... That letter provides details [of]… the need for the future restructure of the Tasmanian Branch's governing bodies at the next election.”[20]

1. If this application and the one being dealt with by the General Manager are granted, the Tasmanian Branch’s structure will change and the Union’s National Executive will assume responsibility for the financial management of the Tasmanian Branch, along with the associated powers, duties, functions.[21]

1. To this end:

   ·   the Tasmanian Branch will no longer maintain a separate Balance Sheet, separate bank account or separately hold property; and

   ·   The Union’s National Office will take full administrative responsibility for the Tasmanian Branch’s financial tasks, including financial transactions, payments on the branch’s behalf, payroll obligations and the lodgement of BAS and PAYG payroll tax statements.[22]

1. There is nothing to suggest that the alterations to insert proposed new Part XIIIA (or any of the rules therein) and Rule 149B have not been made for a bona fide purpose. On the contrary, when viewed in concert with the related alterations that are currently before the General Manager, they form part of a package directed to improving the financial position of the Branch and assisting the Union to achieve its objects in relation to its Tasmanian members. They encourage responsible management. The scope of duties and responsibilities proposed for the Branch Executive fit neatly with the flatter and slimmed down structure proposed.

1. Further, there is nothing before me to suggest that despite appearances the proposed alterations are instead directed to the removal of an individual from office.

1. I have already found that the changes were made under the Union’s rules.

1. Finally, the alterations are, in my view, transparent. They were made by the Union’s National Conference[23] with the concurrence of the Tasmanian Branch’s Branch Executive and Branch Council,[24] the Tasmanian Rail Division,[25] and the Tasmanian Tram and Bus Division.[26]

1. The proposed insertion of new Part XIIIA (or any of the rules therein) and Rule 149B are not otherwise contrary to law.

1. Nor are the relevant alterations contrary to the Act.

1. The only section of relevance is s.142(1)(c). That section provides:

“The rules of an organisation must not impose on applicants for membership, or members, of the organisation, conditions, obligations or restrictions that, having regard to Parliament’s intention in enacting this Act (see section 5) and the objects of this Act and the Fair Work Act, are oppressive, unreasonable or unjust.”

1. The Parliament’s intention referred to in s.142(1)(c) is found in s.5 of the Act. It is said to be met if, among other things:

   ·   employer and employee organisations registered under this Act are representative of and accountable to their members, and are able to operate effectively;

   ·   members are encouraged to participate in the affairs of organisations to which they belong;

   ·   the efficient management of organisations and high standards of accountability of organisations to their members are encouraged; and

   ·   organisations function and are controlled democratically.[27]

1. On the one hand, reducing the number of collective bodies in the Tasmanian Branch and the number of persons who will be elected to office may limit opportunities for member participation in the Union’s affairs and by extension potentially lead to the organisation being less representative of its members.

1. On the other hand, the suite of alterations in this matter and R2023/120 are directed at ensuring the Tasmanian Branch has the resources necessary to operate effectively, to be efficiently managed and provide high standards of accountability to its members.

1. The proposed alterations impose conditions, obligations or restrictions on members of the Union attached to its Tasmanian Branch. However, the mere imposition of conditions, obligations or restrictions on members does not render the alterations contrary to s.142(1)(c). They are only contrary to that section of the Act if the conditions, obligations or restrictions imposed on members are oppressive, unreasonable or unjust when the Parliamentary intentions are viewed as a whole. In my view any conditions, obligations or restrictions imposed by the proposed insertion of new Part XIIIA and Rule 149B do not possess the requisite character.

1. For the sake of completeness, in my view there is nothing about proposed Part XIIIA (or any of the rules therein) and Rule 149B that fails to comply with or is contrary to the Fair Work Act 2009 (Cth) (the FW Act), modern awards or enterprise agreements.

Consent to amend the alterations to correct errors

1. On 13 December 2023, Mark Diamond, the National Secretary of the Union, gave consent under subsection 159(2) of the Act for me to make an amendment to the alterations for the purpose of correcting typographical, clerical or formal errors. Accordingly, the following correction has been made:

   ·   In proposed Rule 138, replaced the rule reference to Rule 149 to Rule 149A. 

Conclusion

1. In my opinion, the alterations comply with and are not contrary to the Act, the FW Act modern awards and enterprise agreements, are not otherwise contrary to law and were made under the rules of the organisation. I certify accordingly under subsection 159(1) of the Act.

DELEGATE OF THE GENERAL MANAGER

[1] The particulars also set out alterations to Rules 3, 11, 21, 23, 25, and 27. The alterations form one element of a related application to the Fair Work Commission (the Commission) for:

·    a certificate under s.245 of the Act. If granted, the certificate deems the Union’s National Office and its Tasmanian Branch to be a single reporting unit for the purposes of Part 3 of Chapter 8 of the Act; and

·    certification of alterations to Rules 3, 21, 23, 25, and 27 and the insertion of new Rule 149A, which give effect to the establishment of the proposed reporting unit.

The application (R2023/120) is being dealt with by the Commission’s General Manager. The issue of a certificate stating that a registered organisation is divided into reporting units on an alternative basis cannot be delegated under s.343 of the Act. Nor can the certification of rule alterations under s.246(1)(b) of the Act. 

[2] [2022] FWCG 4; 3 March 2022; R2021/200.

[3] By their terms proposed Part XIIIA and Rule 149B operate as and from the calling for nominations in the next quadrennial election after the relevant alterations are approved, assuming they are approved – see proposed Rule 149B.

[4] See Rule 42.

[5]. See proposed Rule 144 of Part XIIIA.

[6] Ibid – see the references to Branch Divisional Committees

[7] See proposed Rule 147 of Part XIIIA.

[8] Ibid.

[9] See proposed Rule 149A(3) in related matter R2023/121.

[10] Imlach v Daley (1985) 7 FCR 457 at 462

[11] See the majority in Saint v Australian Postal and Telecommunications Union & Ors (1976) 13 ALR 649.

[12] Roughan v Australasian Meat Industry Employees’ Union (1992) 36 FCR 536.

[13] [2022] FWCG 41; 28 June 2022; R2022/14 at paragraph [13].

[14] See section 141(1)(c) of the Act.

[15]  See Saint v Australian Postal and Telecommunications Union (1977) 30 FLR 385 at 393; Hills v Higgins (1982) 61 FLR 131 at 143; Roughan v Coulson (1982) 3 IR 393 at 396; Benson v Construction, Forestry, Mining and Energy Union(1995) 60 IR 394 at 401-402.

[16] Australian Municipal, Administrative, Clerical and Services Union [2020] FWCD 3308.

[17] [2008] NSWIRComm 438,at paragraph [13].

[18] R2023/120. See Endnote 1 above.

[19] 31 October 2023 correspondence from the Union’s Tasmanian Branch Secretary which forms Annexure MD3 to the Union Secretary Mark Diamond’s 15 November 2023 declaration in R2023/121.

[20] Mark Diamond’s 15 November 2023 declaration in R2023/120, at paragraphs 24 - 25.

[21] See proposed new Rule 149(3) in R2023/120.

[22] See proposed new Rule 149(3) in R2023/120.

[23] Mark Diamond’s 15 November 2023 declaration in R2023/120, at paragraph 18.

[24] Ibid at paragraphs 7 – 10.

[25] Ibid at 11 - 12.

[26] Ibid at paragraphs 13 – 14.

[27] See s5(3)(a, (b), (c) & (d) of the Act.

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