Australian Salaried Medical Officers Federation
[2023] FWCD 29
•27 NOVEMBER 2023
| [2023] FWCD 29 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Australian Salaried Medical Officers Federation
(R2023/98)
| CHRIS ENRIGHT | MELBOURNE, 27 NOVEMBER 2023 |
Alteration of other rules of organisation.
On 26 September 2023 the Australian Salaried Medical Officers Federation (ASMOF) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules. Further materials and information relating to the alterations were lodged on 14 and 16 November 2023.
ASMOF seeks certification of the alterations under s.159 of the Fair Work (Registered Organisations) Act 2009 (the Act).
On the information contained in the notice, the declaration and in the further materials and information provided, I am satisfied that the alterations have been made under the rules of the organisation.
Regulation 126(1) of the Fair Work (Registered Organisations) Regulations 2009 requires particulars of rule alterations to be lodged within 35 days after the alteration is made, or within any additional period allowed by the General Manager (or his Delegate). The alterations were made on 11 August 2023 and lodged on 26 September 2023, being 11 days after the prescribed 35 days.
ASMOF has requested I allow an extension of time for the lodgement of the alterations on the basis that the period during which the alterations were made and required to be lodged coincided with the period in which ASMOF replaced its National Executive Officer position.
I have accepted this reason for the late lodgement and therefore allow an additional period, until 26 September 2023, for the lodgement of the notice of particulars. However, I remind ASMOF that the granting of an additional period is at my discretion and that it is incumbent upon registered organisations to comply with their legislative obligations.
The particulars of the alterations seek to insert a new Rule 12A regarding a President’s Award.
The particulars also set out alterations (as summarised below) to the following rules:
Rule 5 – Definitions - regarding the meaning of ‘Commission’;
Rule 13 – Register of Members - regarding who can view the register;
Rule 19 – Entry Fees and Subscriptions - regarding financial membership arising from membership of a related association pursuant to a Conjoint Agreement with ASMOF;
Rule 21 – Un-Financial Ordinary Members - regarding financial membership arising from membership of a related association pursuant to a Conjoint Agreement;
Rule 28 – Constitution of the Federal Executive - which confirms that each of the eight ASMOF Branches is entitled to one position each on the Federal Executive;
Rule 34 – Conduct of Meetings of the Federal Council - regarding the use of proxies;
Rule 37 – Meetings of the Federal Executive - regarding ballots and meetings which do not occur in person;
Rule 41 – Decisions by the Federal Council or the Federal Executive without meeting - regarding ballots and meetings which do not occur in person, and which also delete references to Federal Executive as these issues are already dealt with in rule 37;
Rule 77 – Election of Federal Council Delegates - regarding, among other things, recall elections where there are insufficient nominations in an election;
Rule 78 – Election of Officers and Additional Members of the Federal Executive - regarding, among other things, recall elections where there are insufficient nominations in an election;
Rule 79 – Insufficient nominations for the Branch Council – regarding recall elections.
I also note the following two points regarding the alterations.
Composition of the Federal Executive
The alterations to rule 28(3) confirm that each of the eight ASMOF branches is only entitled to one position on the eight person Federal Executive – and votes in elections are to be counted accordingly. This alteration follows a recommendation in a Post Election Report by the Australian Electoral Commission (AEC) in regard to a recent ASMOF election (E2020/222 - refer pages 3 and 4 of the report).
Notwithstanding this, rules 78(18), (19) and (21) may still purportedly allow more than one person to be elected to the Federal Executive from the same branch if they receive the most votes. While this ambiguity is ultimately resolved by rule 28(3) (via the phrasing ‘if … but for this rule …then …’ which indicates that rule 28(3) is to prevail over all other rules) it is suggested that ASMOF consider further revising rule 78 to conform with rule 28(3).
Financial Membership of ASMOF arising from a Conjoint Agreement
Rule 19 concerns membership fees and rule 21 concerns unfinancial members. The alterations include amendments to these rules which are potentially ambiguous.
Existing rules 19(14) and (15) deal with the financiality of persons who are members of ASMOF because they are members of associated bodies who are parties to a Conjoint Agreement with ASMOF. Rule 12 also deals with this issue.
ASMOF has provided a copy of a Conjoint Agreement executed in 2017 which ASMOF has advised remains on foot. The Conjoint Agreement of ASMOF covers a range of entities including the Australian Medical Association (AMA) and related associations in Victoria, Queensland, NT, WA and Tasmania. The Conjoint Agreement provides at Schedule 3 that the AMA is to provide to ASMOF ‘[a]t least every 28 days’ the names and details of ‘current members’. Schedule 3 then separately requires the AMA to provide ‘[a]t least every 28 days a list of members no longer eligible for Conjoint membership of ASMOF as a result of becoming unfinancial, resignation, transfer, change of employment or retirement’. The Conjoint Agreement then provides that these provisions are adopted by various related associations who are parties to the agreement including in Victoria, Queensland, NT and WA.
Two potential issues have been identified in these alterations.
First the existing wording of rule 19(14) makes clear that it only concerns the financiality of persons who are members due to a Conjoint Agreement as follows:
Despite sub-rule (3) an Ordinary Member who pays membership fees to an Associated Body in an amount equivalent to, or greater than, the subscription determined under sub-rule (1), will, during the currency of a Conjoint Agreement between the Federation [ASMOF] and that Associated Body, be a Financial Member.
However the proposed rule 19(14) is far shorter as follows:
Despite this rule and subject to sub-rule (15), an Ordinary Member will be a Financial Member during the currency of a Conjoint Agreement between the Federation [ASMOF] and that Associated Body.
This shorter wording of rule 19(14) is problematic for the following reasons:
a.it no longer expressly states that it only concerns members who are members of an Associated Body;
b.it suggests the rule might apply to all Ordinary Members of ASMOF and render all Ordinary Members financial in some circumstances, due to the opening words ‘Despite this rule …’;
c.it does not explain what ‘that Associated Body’ means; and
d.its cross reference to rule 19(15) does not directly overcome these ambiguities.
Second, the related amendments to rule 21(2)(b)(ii) (regarding unfinancial members) provides that a person (who is a member due to a Conjoint Agreement) will be unfinancial if they do not appear on ‘a list provided’ by the relevant Associated Body ‘from time to time’ of financial members. It does not state they will only be unfinancial if they do not appear on the most recent list of financial members.
It is therefore my view that proposed rules 19(14) and 21(2)(b)(ii) are ambiguous on one of the most significant issues relating to members, that is, whether they are financial members and have the rights that arise from that, including the right to vote and nominate for office.
To address these ambiguities I have referred to s15AA of the Acts Interpretation Act 1901 (Cth) (AIA Act) which states:
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
In this case the relevant purpose of the ASMOF Rules (whether stated in the rules or not) is to ensure that persons who meet the requirements of ASMOF financial membership are recognised as such and afforded the rights and privileges of such members including the right to vote. In light of this, and based on the overall structure of the ASMOF Rules and the wording of the current alterations I am satisfied that:
a. proposed rule 19(14) is only concerned with the financiality of persons who are members via a Conjoint Agreement and does not seek to provide that all Ordinary Members of ASMOF will be financial if there is a Conjoint Agreement on foot;
b. proposed rule 21(2)(b)(ii) seeks only to conclude that a person (who is a member via a Conjoint Agreement) is unfinancial if:
i.the Conjoint Agreement requires a list of financial members to be provided by the relevant associated body to ASMOF from time to time; and
ii.the person does not appear on the most recent list provided.
Therefore, based on the approach set out in s15AA of the AIA Act I am satisfied that the alterations to rule 19(14) and 21(2)(b)(ii) are capable of being certified and are not oppressive, unreasonable or unjust.
However given the significant uncertainty which might arise among members as to their status as financial members of ASMOF due to the new wording of rules 19(14) and 21(2)(b)(ii) it is recommended that ASMOF give serious consideration to remedying the potential ambiguities in these rules as soon as practicable.
Conclusion
In my opinion, the alterations comply with and are not contrary to the Act, the Fair Work Act 2009 (Cth), 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
Printed by authority of the Commonwealth Government Printer
<PR768294>
0
0
0