Australian Road Transport Industrial Organization
[2020] FWCD 1869
•5 June 2020
| [2020] FWCD 1869 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Australian Road Transport Industrial Organization
(R2020/13)
| MURRAY FURLONG | MELBOURNE, 5 June 2020 |
Alteration of other rules of organisation.
On 17 February 2020 the Australian Road Transport Industrial Organization (“ARTIO”) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules. Additional information was provided on 18 May 2020.
The particulars:
set out alterations to Rules 2, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 36, 41, 41A, 41B, 42, 44, 45, 46, 48, 49;
set out alterations to Branch Rules 2, 4, 5, 6, 7, 8, 9, 11, 12, 13, 14, 15, 17, 18, 20, 22, 24, 27, 28, 29, 30; and
insert new rules 7A, 8A, 24A and Branch Rule 15A.
A number of general changes have been made to ARTIO’s Rules.
The period of notice required to be given before various collective bodies can meet or General Meetings can be held has been reduced. This in part reflects the ability to provide notice by electric means rather than by mail.
The nomination periods for elections to various offices, in circumstances where only a small number of people need to be balloted, have been reduced.
Election provisions which apply to elections for various offices with ARTIO and exist across several rules have been removed and instead consolidated in a single rule.
The rules have been made gender neutral by replacing instances of Chairman, with Chair.
Reference to former legislation and to Fair Work Australia have been updated.
Where a number is referred to within a rule, only the numeral is set out. References to Members of the ARTIO now always begin with a lower-case letter ‘M’.
Redundant transitional provisions have been removed.
In addition to those general matters, the alterations make a number of specific changes.
Typographical and clerical errors currently appearing in the rules have been corrected.
The alteration to Rule 5 defines the word person for the purposed of ARTIO’s rules, other than its eligibility rules.
The alteration to Rule 7 creates new sub-rules that permit newly created branches to transition into the normal election cycle of the other branches over time.
New Rule 7A provides guidelines for reciprocal membership arrangements with counterpart state bodies. An associated alteration to Rule 15 clarifies that Branches need not collect subscriptions from ARTIO members who are also financial members of a State Counterpart. A further associated alteration to Rule 17 ensures that a financial member of a State Counterpart who is also a member of ARTIO is deemed to be a financial member of the registered organisation.
The alteration to Rule 8 relates to eligibility rules. It was dealt with by a Presidential Member of the Commission in matter D2020/1.
New Rule 8A generates a new sub-rule titled ‘Associate Membership’. This alteration permits any person not eligible for membership of the Organization under Rule 8, but that carries on a bona fide business actively engaged in connection with the industry of the Organization, may be admitted by a Branch Committee as an Associate Member and receive services from ARTIO.
New Rule 24A consolidate election provisions which apply generally to elections for office in ARTIO under a single rule. As noted above, various other rules have been streamlined as a consequence. The manner of election has also been refined in some respects allowing advice from the Australian Electoral Commission.
The alterations to Rule 25 deletes a redundant transitional provision, clarifies who is eligible to nominate for ARTIO’s Committee of Management and removes the uses of candidate statements in Council Representative elections.
The alterations to Rule 26 and Branch Rule 15 clarify that a person shall not simultaneously hold dual offices at either national or branch level.
The alterations to Rule 28 and Branch Rule 17 provides clarity on the cessation of office.
The alterations to Rule 29 make it clear that the President, Vice Presidents and Executive Committee Members are elected by and from the Committee of Management and clarify the manner of elections to those offices conducted. This amendment also removes numbers in their word form.
The alterations to Rule 30 revise the manner of election for ARTIO’s Secretary/Treasurer.
The alterations to Rule 31 and Branch Rule 15A consolidate all information on casual vacancies at the national and branch level respectively in single rules.
The alteration to Rule 41 and Branch Rule 24 clarify the fact that out-of-pocket expenses incurred by any member’s Representative or Officer acting on behalf of the Branch will be reimbursed.
The alterations to Rule 45 and Rule 46 allow notice of meetings to be given and meetings (other than General Meetings of Members) to be conducted via electronic methods.
Rule 48 has been altered to reduce the period of notice required to be given before rule alterations can be considered.
The alteration to Branch Rule 12 updates the requirements for the election of the Branch Committee. This amendment elongates the period in which an election’s steps may be taken, recognising that the election may involve a direct election by postal ballot of a Branch’s membership. Further to this, this modification provides clarity on direct voting systems and determines how insufficient nominations and secret ballots are to be conducted. Guidelines for candidate statements are also provided.
The alteration to Branch Rule 14 updates the requirements for elections of Branch Officers. This amendment shortens the nomination period, clarifies the ballot periods and makes it clear that the election is by collegiate electoral system.
The alterations to Branch Rule 17 clarify the circumstances when someone ceases to hold office.
The alterations to Branch Rules 28 and 29 clarify how meetings of Committee may be held and the forms of notice that can be given by a Branch.
Branch Rule 11 of ARTIO’s rules require further comment. It has been altered to read:
The Branch Committee, which shall be the Committee of Management of the Branch, shall consist of such number of persons as shall be determined from time to time by the m
Members of the Branch in General Meeting, but such number shall not be less than 5five (5)nor more than 10ten (10). PROVIDED HOWEVER that should the mMembers of the Branch be ever less than 5five (5)in number, then each mMember shall, ipso facto, be deemed to be a Member of the Committee of Management and the number of such mMembers shall be for the time being considered adequate to constitute a Branch Committee under the Rules.
There is an argument that such a rule is either contrary to section 143(1) of the Fair Work (Registered Organisations) Act 2009 (the Act), to section 146 of the Act or to both. This seemed true of both the current rule and the rule as altered.
ARTIO was provided with the opportunity to address this argument and was invited to provide submissions about the matter and given a copy of my decision in Re: Shop, Distributive and Allied Employees Association[1].
Material in support of the alteration to Branch Rule 11 was lodged on 18 May 2020. In part, the applicant submitted:
[I]t would be our submission that the particular alterations… [to Branch Rule 11] are innocuous, mundane, and otherwise inconsequential or neutral in the sense that they do not change the meaning or construction of the existing second sentence of branch rule 11. Accordingly, the particular alterations are unobjectionable.
Secondly, ARTIO presses the point that the Delegate's jurisdiction under s. 159 is confined to dealing with the alterations of the rules. The only grounds for refusing to certify alterations are that the alterations, simpliciter, offend section 142 of the Act, or that the alterations, if certified, would transform a pre-existing rule into an impermissible provision. Here, it is ARTIO's view that the alterations per se, do not offend section 142 nor do they transform the rule.[2]
ARTIO then referred to the decision of an Australian Industrial Relations Commission Full Bench in ATOF and Aust Shipping and Travel Officers Association[3] (Re: ATOF).
Re: ATOF dealt with an appeal against a refusal to certify, in part, alterations to a registered organisation’s eligibility rules.
In its submissions, ARTIO noted that the Re: ATOF Full Bench stated:
The ATOF amendment in this instance took the form of deleting the existing eligibility rule entirely and inserting a new sub-rule with changes to the existing rule incorporated. That form of amendment does not of itself render the whole of the proposed new sub rule an alteration within the meaning of s.204. The words added to the aggregation of words which constitute the existing rule are the alteration, or alterations of the rule[4] (ARTIO’s emphasis).
I accept this proposition. As the Full Bench went on to say in Re: ATOF:
As Gray J. noted in an analogous context, it is not the function of the Designated Presidential Member to consent to the rule or subrule as it exists, or to the rule as it may be amended. The Designated Presidential Member is obliged to form an opinion with respect to each alteration of which there may be a number within a revised rule or subrule proposed by the applicant organisation[5] (footnotes omitted).
There is nothing to suggest that the word ‘alteration’ which appeared in section 204 of the Industrial Relations Act 1988 in connection with the alteration to eligibility rules[6] bears a different meaning when it is used in section 159 of the Act in connection with alterations of other rules of registered organisations. Nor, in my view, are there any other considerations which suggest the Full Bench’s comments in Re: ATOF would not apply to the current matter. It is not open to me to refuse alterations to a rule which fulfil the criteria set out in sections 159(1)(a) & (b) on the ground that the rule as a whole may be contrary to the Act due to factors unrelated to the subject alterations.
I accept ARTIO’s characterisation of the alterations to Branch Rule 11 as unobjectionable. As a consequence there is no impediment to their certification. However, it is possible that Branch Rule 11 may be susceptible to challenge under other provisions of the Act. I suggest the organisation consider further amending its rules.
On the information contained in the notice, I am satisfied the alterations have been made under the rules of the organisation.
On 18 May 2020, Peter Anderson, Secretary/Treasurer of the Australian Road Transport Industrial Organization, gave consent, under subsection 159(2) of the Act, for the Delegate to make various amendments to the alterations for the purposes of correcting typographical, clerical or formal errors. Accordingly, the following corrections have been made:
- In proposed Rule 7(1), the letter ‘f’ has been removed from the beginning of the rule;
- In proposed Rule 7A(2)(a), the bracket has been placed after the word ‘body’ instead of after the word ‘Organization’;
- In proposed Rule 24A(15), the word ‘tar’ has been replaced with ‘far’;
- In proposed Rule 25(1), adds an ‘s’ after the word ‘Representative’;
- In proposed Rule 26, includes the slash between the words ‘Secretary’ and ‘Treasurer’;
- In proposed Rule 42(4), adds ‘or her’ after the word ‘his’;
- In proposed Rule 46(1)(a), removes the word ‘incl’ and replaces it with the word ‘including’;
- In proposed Branch Rule 12 (4)(c), includes the word ‘by’ after the word ‘endorsed’;
- In proposed Branch Rule 14(2), removes the number in word form; and
- In proposed Branch Rule 15, includes the slash between the words ‘Secretary’ and ‘Treasurer’.
In my opinion, the alterations comply with and are not contrary to Act, 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] [2018] FWCD 2897; 19 June 2018
[2] ARTIO submission of 18 May 2020 at paragraphs 13-14
[3] Print J3120; 21 June 1990; Ludeke, Munro JJ and Harrison C
[4] Print J3120 at page 7
[5] Print J3120 at page 8 referring to Re: Food Preservers Union of Australia (1988) 79 A.L.R. 138 at 155
[6] The same term has been re-enacted several times between then and now, it currently appears in-section 158 of the Act
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