Australian Salaried Medical Officers Federation

[2021] FWCD 262

[2021] FWCD 262

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

Australian Salaried Medical Officers Federation

(R2020/115)

MURRAY FURLONG MELBOURNE, 11 February 2021

Alteration of other rules of organisation.

1. On 6 August 2020 the Australian Salaried Medical Officers Federation (the Federation) lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to its rules. Further information in support of the application was lodged on 7 August 2020.

1. On the information contained in the notice, I am satisfied the alterations have been made under the rules of the organisation.

1. The particulars set out alterations to the following rules of the Federation:

Rule 5 – Definitions
Rule 27 – Constitution of the Federal Council
Rule 28 – Constitution of the Federal Executive
Rule 40 – Proxy voting on the Federal Council and the Federal Executive
Rule 57 – Constitution of the Branch Council
Rule 76 – Election of the Branch Council
Rule 77 – Election of the Federal Council Delegates and Doctor in Training Delegates and
Rule 79 – Insufficient Nominations for the Branch Council.

1. In addition, the particulars set out new Rule 77A – Election of Federal Council Doctor in Training Delegates and deletes Rule 89 – Transitional Rule.

1. In 2017 the Federation embarked on a substantial review of its rules, which culminated in changes to all its rules, other than those pertaining to eligibility for membership and the Federation’s name.[1] Those alterations were certified on 13 March 2018.[2]

1. The Federation has now had sufficient time to consider the practical implications of those changes and as a consequence has made a number of alterations which clarify and/or refine the previous substantive alterations, so the relevant provisions can be better understood and applied.

1. The Federation’s rules have also been altered to more clearly distinguish between the manner of election of Federal Council Delegates representing the Federation’s Branches and those representing Doctors in Training. The following alterations implement this change:

1.   The manner of election of Doctor in Training Delegates has been removed from Rule 77;

2.   New Rule 77A deals exclusively with the election of Doctor in Training Delegates to Federal Council;

3.   Rule 5(1)(z) extends the meaning of Triennial Elections to include elections held every three (3) years for Federal Council Doctor in Training Delegates, by inserting a reference to Rule 77A;

4.   New Rule 40(1)(b) is now created allowing for a Doctor in Training Delegate to the Federal Council to appoint a Federal Council delegate as their proxy, and further includes an explanation of the requirements for doing so.

1. The alterations to Rule 27 clarify the number of Delegates that a Branch can elect to the Federal Council, in circumstances where the Branch has more than 3601 Financial Members as at 31 January in a Triennial Election year. The alterations further delete a provision that dealt with casual vacancies but appeared to incorrectly cross reference other rules.

1. Rule 28(8) has been altered to remove the requirement that casual vacancies among members of the Federal Executive representing the Branches must be filled using the election process which initially filled the office. The rule has also been altered so it no longer specifies the term of office of a person elected or appointed to fill a casual vacancy on the Federal Executive; that matter is now dealt with exclusively by Rule 78.

1. Rule 40(6) has been altered to provide that the Branch Council may instruct proxies appointed by either a Branch Delegate to the Federal Council, a Branch representative on the Federal Executive or the Branch Council (under the procedure outlined in Rule 40(4)), as to how they are required to vote on matters to be determined by the Federal Council or Federal Executive.

1. The alteration to Rule 76(6) removes the requirement  that the notice pertaining to nominations for Branch Council offices must be given by publication in a Federation Communication, a daily newspaper circulated in the location of the Branch or a combination of the two.

1. Rules 76 and 77A have been altered to facilitate the provision of candidate statements where a ballot is required for either the election of Federal Council Delegates representing the Branches or Doctors in Training.

1. New Rules 77(23) and (24) contain provisions relating to the filling of casual vacancies among members of the Federal Council. The new Rules clarify respectively that these can be filled either by appointment of another member of the Branch Council, or by election under the relevant rules, depending on the length of the remaining, unexpired term of that office.

1. Further to the above rule alterations, the Federation has consequentially adjusted the numbering and cross-referencing throughout its rules.

1. Rule 89 contains redundant transitional provisions and has been deleted.

1. 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]R2018/7.

[2]Australian Salaried Medical Officers Federation; R2018/7; 13 March 2018; [2018] FWCD 1228.

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