Australian Road Transport Industrial Organization

[2013] FWCD 9308

[2013] FWCD 9308

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Australian Road Transport Industrial Organization
(R2013/65)
MR ENRIGHT	MELBOURNE, 28 NOVEMBER 2013
Alteration of other rules of organisation.

[1] On 11 June 2013 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.

[2] The particulars provide for the insertion of new Federal Rules 27(1)(da), 41A, 41B and Branch Rules 13(1)(ba), 24A and 24B 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] On the information contained in the notice, I am satisfied the alterations have been made under the rules of the organisation.

[4] On 8 November 2013, Peter Garske, Acting Secretary/Treasurer of the Australian Road Transport Industrial Organization gave consent, under subsection 159(2) of the Fair

Work (Registered Organisations) Act 2009, for the Delegate to make various amendments to

the alterations for the purpose of correcting typographical, clerical or formal errors.

Accordingly the following corrections have been made:

 In proposed rule 41B(10) relevant remuneration, “office” is replaced by “officer”;

 In proposed rule 41B(10) related party, “Organizations” is replaced by

“Organisations”;

	In proposed rule 41B(3)(b) “officers’s” is replaced by “officers” and
	In proposed rule 41B(11)(c) the quotation marks at the end of proposed rule are removed.

[5] I note that proposed Branch Rule 24B provides that ‘Rule 41B is, with the necessary changes, to apply to each Branch of the Organization, and to each officer of a Branch as if each reference to the Organization was a reference to a Branch and the reference to the Council was a reference to the applicable Branch Committee...’ However, this construction purports to apply a mutually exclusive reading of ‘Organization’, so that it can only mean either the Organization or its Branch, as the context requires and not both. Consequently, in

[2013] FWCD 9308

my view, sub rules 41B(7)(a)(i) and 41B(7)(b)(i) of the organisation’s rules do not meet all of
the requirements of section 148C(1) of the Amendment Act.

[6] Section 148C(1) of the Amendment Act provides that the rules of an organisation must require the disclosure, to the members of the organisation and its branches, of payments made by an organisation or a branch. As proposed sub rules 41B(7)(a)(i) and 41B(7)(b)(i) omit a reference to Branch, the rules do not meet all of the requirements of section 148C(1). Notwithstanding these omissions, the substance of the rule alterations complies with the statutory requirements. Although further alterations are needed, this does not prevent the certification of the alterations that have been made. However, the omissions of the references to Branch in the rules noted above will need to be amended by the organisation as expeditiously as possible to ensure full compliance with the provisions of the Amendment Act.

[7] In addition, proposed Federal Rule 27(1)(da) and Branch Rule 13(1)(ba) state that ‘the Council shall have plenary powers in the management of the business and affairs of the Organization including but not limited to... the development and implementation of policies relating to expenditure’. Section 141(ca) of the Amendment Act requires organisations and their branches to develop and implement policies relating to the expenditure of the organisation or the branch (as the case may be). Consequently, in my view, as proposed Federal Rule 27(1)(da) and Branch Rule 13(1)(ba) only provide the organisation with power to develop and implement policies rather than requiring the organisation and its branches to develop and implement such policies, the proposed rules do not fully comply with the requirements of the Amendment Act. However, I note that, in a letter dated 8 November 2013, the organisation accepts this omission and advised that these rules will be amended when the organisation next meets to make further alterations.

[8] Furthermore, in a letter dated 8 November 2013, the organisation advised the Commission that it will make amendments to the existing proposed alterations. The organisation proposes to delete the words “in advance” and “on the application of the Organization” from proposed Financial Management Training Federal Rule 41(3)(b) and Branch Rule 24A(3)(b) in order to remedy a potential future problem. Currently worded, these rules imply that the officers of the organisation and its branches can only be provided with training that has been put together by the organisation, which could present quite a practical issue for the organisation. The Amendment Act does not require this, rather officers of the organisation and its branches may be provided with training that has been assembled by other registered organisations and subsequently approved by the General Manager of the Commission. Additionally, the organisation proposes to adopt the new exemptions provided in Item 7 of Schedule 6A of the Fair Work Amendment Act 2013[1].

[1]Item 7 of Schedule 6A of the Fair Work Amendment Act 2013 inserts new subsection 148C(2A) which enables rules to

[9] The Amendment Act[2]provides that alterations to rules of an organisation for the purpose of making provision as required by the Amendment Act can be certified by the General Manager during a transition period which commenced on 29 June 2012. Any alteration to rules that is certified during the transition period, however, does not take effect until the date of certification or the commencement of Part 2 of Schedule 1 to the Amendment

[2013] FWCD 9308

Act, whichever occurs later. Part 2 of Schedule 1 to the Amendment Act commences on

1 January 2014.[3]

[2]See Item 38 of Schedule 1 to the Amendment Act.

[3]See Section 2 of the Amendment Act.

[10] In my opinion, the alterations comply with and are not contrary to the Fair Work (Registered Organisations) Act 2009 (the RO Act), the Amendment 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 RO Act as modified by item 38 of

Schedule 1 to the Amendment Act.

DELEGATE OF THE GENERAL MANAGER

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exclude remuneration and reimbursement paid to officers from disclosures of payments to related parties.