Australian Road Transport Industrial Organization

[2014] FWCD 7264

[2014] FWCD 7264

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Australian Road Transport Industrial Organization
(R2014/24)
MR ENRIGHT	MELBOURNE, 15 OCTOBER 2014
Alteration of other rules of organisation.

[1] On 19 February 2014 the Australian Road Transport Industrial Organization (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. 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.

[2] The particulars set out alterations to rules 25, 27, 41, 41B and Branch rules 13 and 24A of the rules of the organisation. In particular, the alterations provide for the disclosure of specified payments to branches, require the organisation and its branches to develop and implement expenditure policies and remove the requirement of the officers of the organisation and its branches to only be provided with training that has been put together by the organisation.

[3] Further information was sought from the organisation regarding the rule altering

process and on 10 October 2014 a supplementary declaration was received by the
Commission.

[4] A question arises as to whether the rule alteration process was complied with when transacting the alterations. Rule 33(2) of the organisation’s rules states, ‘Except in the case of urgency, at least one (1) month’s notice of the commencing time, date and place of the meeting together with an agenda paper shall be sent to each Member of the Council.’ The declaration of Mr Peter Garske on 17 February 2014 states written notice of the proposals to be considered at the Federal Council Meeting on 12 February 2014 were electronically sent to each member of the Federal Council on 21 January 2014. Furthermore, the supplementary declaration of Mr Peter Garske on 10 October 2014 states the notice of 21 January 2014 included the commencing time, date and place of the meeting together with the agenda paper. Therefore, it appears one of the rules associated with the organisation’s rule altering procedure has not been strictly complied with. In accordance with the Act, I am required to be satisfied that the alterations have been made under the rules of the organisation.

[5] As discussed in Master Builders’ Construction and Housing Association of the

Australian Capital Territory,[1]the relevant question to be asked is whether it is intended that
[2014] FWCD 7264

non-compliance would result in invalidity. Drawing from Project Blue Sky[2]and the application of its principles to the rules of an Association in Re: Australian Principals Federation,[3]the issue is not whether an instance of non-compliance has occurred (and as an inevitable consequence the decision to alter the rules is invalidated). The issue is whether an act which does not comply strictly with the rules has no effect. To determine this, regard must be had to the language, scope and object of the relevant provisions.

[1][2013] FWCD 3600

[2]Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28.

[3]Appeal by the Australian Education Union against the decision of Vice-President Ross of 27 January 2006; Lawler VP,

[6] Applying this reasoning to the facts before me, the object of rule 33(2) of the

organisation’s rules is that all Councillors receive notice of the commencing time, date and
place of the meeting.

[7] I have taken into account that the Councillors who voted on the proposal were given 21 days notice of the meeting rather than the required 1 month’s notice. I have also taken into account that the alterations are legislative requirements of the Amendment Act. In my opinion, the shortened notice of the proposal to make the alteration is procedural and does not invalidate the decision of the Council.

[8] On the information contained in the notice, I am satisfied the alterations have been made under the rules of the organisation. However, I draw to the attention of the organisation that it is incumbent on the organisation to ensure that all Councillors have 1 month’s written notice of the meeting in the future.

[9] Further, I note that the rulebook certified on 25 January 2012 in relation to application R2011/254 contained two errors. The third sentence of sub-rule 25(2) states ‘Should the scrutineer so appointed be at any time unable to act the candidate may appoint another such person, not being a candidate, to act for such scrutineer in their place.’ However, this should read ‘Provided that upon the completion of the annual election in 2009, the term of office shall thereinafter be four (4) years.’ Also, the second sentence of sub-rule 25(10) states ‘Should the scrutineer so appointed be at any time unable to act the candidate may appoint another such person, not being a candidate, to act for such scrutineer during his inability to act.’ However, this should read ‘Should the scrutineer so appointed be at any time unable to act the candidate may appoint another such person, not being a candidate, to act for such scrutineer in their place.’ As the current rules are not the true rules of the organisation, it is my right and duty to set the record straight.[4]Consequently, the third sentence of sub-rule

25(2) has been corrected to read ‘Provided that upon the completion of the annual election in 2009, the term of office shall thereinafter be four (4) years.’ Also, the second sentence of sub- rule 25(10) has been corrected to read ‘Should the scrutineer so appointed be at any time unable to act the candidate may appoint another such person, not being a candidate, to act for such scrutineer in their place.’

[4]Re Vehicle Builders Employees Federation of Australia (Vic Branch); Ex parte Allen 24 FLR 483.

[10] 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.

[2014] FWCD 7264

DELEGATE OF THE GENERAL MANAGER

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Kaufman SDP, Smith C; 26 September 2006; PR973525.