Australian Rail, Tram and Bus Industry Union
[2018] FWCD 1470
•23 April 2018
| [2018] FWCD 1470 |
| 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
(R2017/282)
| MURRAY FURLONG | MELBOURNE, 23 April 2018 |
Alteration of other rules of organisation.
On 27 November 2017, the Australian Rail, Tram and Bus Industry Union (ARTBIU) lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to the rules of the ARTBIU.
The particulars set out the following alterations to the rules of the ARTBIU:
· Rules 32, 71, 73, 75 and 78 of Parts V and VIII of the Rules of the ARTBIU which are of general application across the organisation;
· Rules 99 and 100 of Part X of the Rules of the ARTBIU which specifically apply to the New South Wales Branch;
· Rules 108, 110, 112, 113, 114, 115, 116, 117, 119 and 120 of Part XI of the Rules of the ARTBIU which specifically apply to the Queensland Branch; and
· Rules 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137 and 137A of Part XII of the Rules of the ARTBIU which specifically apply to the South Australian and Northern Territory Branch.
The alterations to the rules contained within Parts V and VIII affect the conditions for candidature for the offices of the National Secretary and Assistant National Secretary and further amend the provisions relevant to election for offices within the ARTBIU.
The alterations to rules 99 and 100 involve the deletion of now redundant text which applied before the scheduled elections held in 2014 and affect the structure of the Branch Divisional Committee of the Infrastructure Division of the New South Wales Branch on and from the next scheduled elections due to be held this year.
The alterations to the rules contained within Part XI introduce the concept of a “Designated Organising Area Unit”, a reduction in the number of Sub-Branches and the deletion of rule 117 which establishes District Branch Executives within the Queensland Branch.
The alterations to the Rules contained with Part XII alter the structure of Districts within the South Australian and Northern Territory Branch, change the title of the office of Branch Junior Vice President to Branch Deputy Vice President and various other amendments.
Section 159(1) of the Fair Work (Registered Organisations) Act 2009 (the Act) provides as follows:
“(1) An alteration of the rules (other than the eligibility rules) of an organisation does not take effect unless particulars of the alterations have been lodged with the FWC and the General Manager has certified that, in his or her opinion, the alteration:
(a) complies with, and is not contrary to, this Act, the Fair Work Act, modern awards and enterprise agreements; and
(b) is not otherwise contrary to law; and
(c) has been made under the rules of the organisation.”
Alterations made under the rules of the organisation
The relevant rule alteration procedures for transacting alterations to the rules of the ARTBIU are set out in Rule 87 which vests the National Council with the power to make alterations to the rules of the ARTBIU. Sub-rule 87(2) sets out the prescribed procedure for making such alterations.
The declaration made by Mr Allan Barden, Assistant National Secretary of the ARTBIU, dated 27 November 2017 and lodged with the notice of particulars provides that the above alterations were made by resolution of the National Council on 1 November 2017 during an attendance meeting. In a supplementary declaration dated 7 February 2018, Mr Barden provides further information regarding the notice given of the relevant meeting of the National Council.
On the basis of the information contained in the declarations, I am satisfied that the National Council followed the procedure set out in sub-rule 87(2) in transacting the alterations and that the meeting was convened and held in accordance with rule 28.
However, one aspect of the alterations appears to require a further step to be taken in order for it to have been validly made under the rules of the ARTBIU. More specifically, sub-rule 87(4) provides as follows:
“(4) Any rescission, alteration or amendment to any provisions of these Rules which relate to National Divisions or Branch Divisions, including this Sub- Rule 87(4), shall be of no effect unless, in addition to complying with Sub- Rule 87(2), it is ratified by the National Divisional Committees and the Branch Divisional Committees of the National or Branch Division(s) affected (my emphasis).”
The references above to National and Branch Divisions reflect the structure of the ARTBIU. More specifically, the membership is at the highest levels organised on both a Branch and Divisional basis.
In addition to the National Council and Executive and the Branch Councils and Executives, the governing bodies of the ARTBIU comprise National Divisional Committees, whose principal purpose is to provide a forum for the National Divisions to develop positions for submission to the National Council and Executive (rule 40) and the Branch Divisional Committees, which are vested with the management of those aspects of the relevant Branch’s operations which affect members of the relevant Branch Division (rule 58).
It is apparent that sub-rule 87(4) intends to provide the membership attached the National or Branch Divisions with an effective veto over alterations which affect their rights and interests associated with membership of those Divisions. Given this, in my view, the sub-rule contemplates alterations which particularly or directly affect the members attached to a National or Branch Division in their capacity as members of the Division. This construction is consistent with the broad scheme of the rules of the ARTBIU, particularly the emphasis upon ensuring that the members attached to the Divisions are organised and represented in such capacity.
As noted above, the alterations to rule 100 include those which affect the composition of the Branch Divisional Committee of the Infrastructure Division of the New South Wales Branch (the Infrastructure Divisional Committee). Thus, this aspect of the alterations appears to be of a kind subject to the ratification process set out in sub-rule 87(4). However, Mr Barden’s declaration of 27 November 2017 did not address the issue of whether this aspect of the alteration to rule 100 transacted by the National Council on 1 November 2017 was subsequently ratified by the Infrastructure Divisional Committee.
On 23 January 2018, the Fair Work Commission raised this issue with Mr Barden and, to the extent that the provisions of sub-rule 87(4) applied to this aspect of the alterations, requested confirmation that it had been complied with.
The Macquarie Dictionary[1] provides the following definition of the term “ratify”:
“1. to confirm by expressing consent, approval or formal sanction.
2. to confirm (something done or arranged by an agent or representatives) by such action.”
Thus, for the purposes of the present matter, the term “ratified” as it appears in sub-rule 87(4) necessarily entails a process of the relevant Branch Divisional Committee confirming or approving any relevant alteration transacted by the National Council pursuant to sub-rule 87(2).
This construction is also consistent with the manner in which the term is used elsewhere in rule 87. More specifically, sub-rule 87(6) clearly contemplates the National Council ratifying an alteration to the rules specifically applying to a Branch previously transacted by a Branch Council.
In its correspondence of 26 March 2018, the Fair Work Commission advised Mr Barden of this and indicated that the alterations to rule 100 which affected the composition of the Infrastructure Divisional Committee required ratification.
On 6 April 2018, Mr Barden provided a copy of a resolution confirming that the Infrastructure Divisional Committee had ratified the relevant alterations during its meeting of 4 April 2018.
On the basis of Mr Barden’s declarations of 27 November 2017 and 7 February 2018, and the documentation subsequently filed on 6 April 2018, I am satisfied that the alterations have been made under the rules of the ARTBIU.
Abolition of the District Executive
As noted above, the effect of the deletion of rule 117 is that the Branch District Executives of each of the three Districts within the Queensland Branch shall be abolished.
In his correspondence of 7 February 2018, Mr Barden provides some context and background regarding the role and function of the Branch District Executives. More specifically, Mr Barden advises that the existence of the Branch District Executives reflects the structure of the Queensland Branch of the Australian Railways Union prior to the amalgamation of that organisation with several others which occurred on 1 March 1993 to form the ARTBIU. Mr Barden further advises that the primary role of the Branch District Executives was historically the management of banking and the payment of expenses. However, this function has ceased to be performed by the Branch District Executives as a result of technological changes and is currently carried out by the office of the Queensland Branch. As a result, the Branch District Executives have become essentially defunct.
Sub-rule 117(1) provides that the Branch District Executives “shall have management of those aspects of the Branch’s operations which affect members of the District only”. Sub-rule 117(3) provides that a Branch District Executive may meet with such frequency and at such times and places as it may determine subject to any restrictions imposed by the Queensland Branch Council and Executive.
I accept Mr Barden’s advice that the Branch District Executives have ceased to perform any necessary functions within the Queensland Branch and the terms of rule 117 make it apparent that its role was of a limited and circumscribed nature. I further note that the Queensland Branch will continue to be governed by the Branch Council, the Branch Executive and Branch Divisional Committees in conformity with the other branches of the ARTBIU. Indeed, the establishment of the Branch District Executives is peculiar to the Queensland Branch.
As noted by Evatt and Northropp JJ in Imlach v Daley (1985) 7 FCR 457, subject to the legislative requirements, an organisation may organise its “internal structures as it thinks fit”.[2] Certainly, an organisation is not required to maintain ossified structures in light of changes to technology and patterns of membership.
The abolition of the Branch District Executives will further entail the abolition of the offices of District Executive President, District Executive Vice President and the District Executive Officers of the Southern District.
This raises two discrete issues which must be resolved in order to make a determination that the deletion of rule 117 complies with, and is not contrary to, the RO Act.
Firstly, section 141(1)(c) of the RO Act provides that the rules of an organisation:
“(c) may provide for the removal from office of a person elected to an office in the organisation only where the person has been found guilty, under the rules of the organisation, of:
(i) misappropriation of the funds of the organisation; or
(ii) a substantial breach of the rules of the organisation; or
(iii) gross misbehaviour or gross neglect of duty;
or has ceased, under the rules of the organisation, to be eligible to hold the office.”
In several judgments of members of the Federal Court of Australia it has been held that predecessors to section 141(1)(c) of the RO Act apply to the abolition of offices made pursuant to alterations to the rules of an organisation to the extent that the abolition occurs before the expiry of the terms of those offices.[3] However, the weight of authority suggests that an abolition of an office in such circumstances does not attract section 141(1)(c) of the RO Act provided it is effected in accordance with the rules of the relevant organisation and is bona fide.[4]
Secondly, the abolition of an office may be found to give rise to the imposition of a condition which is “oppressive, unreasonable or unjust” for the purposes of s. 142(1)(c) of the RO Act. For example, in Benson v Construction, Forestry, Mining and Energy Union (1995) 60 IR 394 (Benson) it was held that the abolition of an office placed a burden that was oppressive, unreasonable or unjust upon “a significant number of applicants for membership or members”[5] in circumstances where the affected members had approved a previous amalgamation of their organisation on the basis of a set of rules which provided for that office and would look to that particular official for assistance after the amalgamation had occurred. However it is not sufficient that the relevant condition, obligation or restriction is oppressive, unreasonable or unjust with reference to a single member or office holder for any potential inconsistency with section 142(1)(c) to arise.[6]
The effect of the deletion of rule 117 is readily distinguishable from the circumstances in decisions such as Benson. As noted above, it is apparent that the District Branch Executives have essentially become redundant as governing bodies and reflect the imperatives of an amalgamation which occurred 25 years ago.
Finally, I note that rule 118(1) will continue to list the officers of the Queensland Branch as including the District Executive Presidents and the District Executive Vice Presidents despite the abolition of those offices pursuant to the deletion of rule 117. This will necessarily lead to some confusion amongst the membership of the Queensland Branch and a certain level of ambiguity regarding the status of those offices. However, in my view, this does not render the alterations in the present matter such that they impose a condition that is “oppressive, unreasonable or unjust” for the purposes of s. 141(1)(c) of the RO Act. However, I encourage the ARTBIU to consider making further alterations to rule 118 to maintain consistency.
In my opinion, the alterations 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
[1] Accessed at
[2] Imlach v Daley (1985) 7 FCR 457, 462 per Evatt and Northrop JJ
[3] For example, Saint v Australian Postal and Telecommunications Union (1977) 30 FLR 385, 397 per St John J; Copeland v Ludwig (1994) 57 IR 436, 446.
[4] See Saint v Australian Postal and Telecommunications Union (1977) 30 FLR 385 at 393 per Dunphy & Evatt JJ; Hills v Higgins (1982) 61 FLR 131, 143; Roughan v Coulson (1982) 3 IR 393, 396; Benson v Construction, Forestry, Mining and Energy Union (1995) 60 IR 394 , 401-402.
[5] Benson v Construction, Forestry, Mining and Energy Union (1995) 60 IR 394, 406.
[6] Ibid, 405-406; Roughan v The Australasian Meat Industry Employees Union (1992) 43 IR 193, 197.
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