Australian Workers' Union, The
[2024] FWCD 1048
•4 OCTOBER 2024
| [2024] FWCD 1048 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Australian Workers' Union, The
(R2024/110)
| CHRIS ENRIGHT | MELBOURNE,4 OCTOBER 2024 |
Alteration of other rules of organisation.
On 26 July 2024 The Australian Workers' Union (the AWU) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules. Further information in support of the alterations was provided on 29 July 2024, 15 August 2024 and 6 September 2024.
The AWU seeks certification of the alterations under section 159 of the Fair Work (Registered Organisations) Act 2009 (the Act).
On the information contained in the notice and declaration and the material provided on 15 August 2024, I am satisfied the alterations have been made under the rules of the organisation.
Regulation 126(1) of the Fair Work (Registered Organisations) Regulations 2009 states:
“For subsection 159(1) of the Act, if an alteration of the rules (other than the eligibility rules) of an organisation is made, the organisation, within 35 days after the alteration is made, or within any additional period the General Manager allows, must:
(a) lodge with the FWC a notice setting out the particulars of the alteration; and
(b) if the organisation has a web site—publish on its web site a notice that the notice mentioned in paragraph (a) has been lodged.”
The alterations were transacted on 19 June 2024. The period prescribed by regulation 126 ended on 25 July 2026. The lodgement was made on 26 July 2024 and the notice of lodgement was published on the AWU’s website on 29 July 2024. Therefore, both events occurred outside the prescribed 35-day period.
The AWU in its correspondence dated 15 August 2024 acknowledged the delay and explained that it was occasioned by the AWU official responsible for lodging and publishing the notification taking personal leave due to illness. The AWU has requested that I allow an additional period.
I accept the AWU’s account for the delay. I note it does not appear to have a history of lodging applications for the certification of rule alterations out of time. I therefore allow an additional period, until 29 July 2024. However, I remind the AWU that granting an additional period is at my discretion and that it is incumbent upon registered organisations to comply with their legislative obligations.
The particulars set out alterations to the following rules:
· Rule 20 – National Conference;
· Rule 26 – Calculation of Branch Representation and Voting Rights for National Conference and National Executive;
· Rule 32 – Duties of Officers;
· Rule 33 – The Branches and Divisions of The Union
· Rule 47 – Annual General Meetings and Ordinary Meetings of Branches;
· Rule 55 – Accounts and Audits;
· Rule 57 – Loans, Grants and Donations; and
· Rule 61 – Elections.
The particulars also delete Rule 82 – New South Wales Branch – Transitional Rule.
The declaration suggests further alterations were made to render the language of the rules gender neutral. However, particulars of those alterations—if any—was not lodged.
Following discussions with Commission staff, the AWU requested the withdrawal of the alteration to rule 57 and any alterations introducing gender neutral language. Given those alterations are completely independent of all the other alterations, I am satisfied that the withdrawal will not affect the meaning or effect of the remaining alterations.[1] I therefore agree to the withdrawal. I now turn to the remaining alterations.
The alterations to subrules 20(1A), 26(5), 55(5) and 61(4) and the deletion of rule 82 remove redundant provisions relating to:
· the time and place for holding a National Conference during the COVID-19 pandemic; and
· transitional arrangements surrounding the creation of the New South Wales Branch in 2016.[2]
The alteration to subrule 47(1) provides specific date information regarding when Annual General Meetings are held.
The above alterations are minor and uncontroversial. They do not require comment beyond expressing my opinion about the matters set out in subsection 159(1) of the Act.
The alterations to subrules 32(2)(a), 33(7)(b), 33(7)(d) and 33(7)(j) alter the composition of National Executives and Branch Executives. They:
· increase the number of National Officers from 8 to 9 by creating an additional honorary National Vice President office;
· reduce the number of New South Wales Branch Executive members from 24 to 20 by abolishing one full-time Branch Senior Vice-President office, one full-time Branch Vice-President office and two honorary Branch Executive Committee Member offices;
· increase the number of Queensland Branch Executive members from 11 to 12 by creating a new full-time Branch Assistant Secretary office; and
· increase the number of Victorian Branch Executive members from 25 to 26 by creating an additional full-time Branch Assistant Secretary office.
An organisation has the right to mould its internal structures as it sees fit, provided it complies with the requirements of the legislation.[3] Authorities also suggest that an elected office may be abolished if the abolition is effected in accordance with the rules, is bona fide,[4] and is not oppressive, unreasonable or unjust within the meaning of the Act.[5] Subsection 142(1)(c) of the Act stipulates that rules must not impose conditions, obligations or restrictions that, having regard to, among other things, Parliament’s intentions and the objects of the Act, are oppressive, unreasonable or unjust.[6] For the sake of brevity, I refer to this requirement as ‘alterations to rules must not be oppressive, unreasonable or unjust’.
I have already found that the alterations were made under the rules of the organisation. There is nothing before me to suggest the abolition is not bona fide. The AWU’s National Secretary Paul Farrow supplied a statement in support of the proposed alterations. Among other things the statement said:
“The New South Wales Branch was created on 1 September 2016 as the product of the amalgamation of three Branches of the AWU located in New South Wales… Almost eight years after the creation of the New South Wales Branch of the AWU, the Branch is seeking to reduce the size of its Branch Executive from 24 to 20 positions as the Branch is now no longer three Branches operating together but a single Branch of the AWU; these additional offices are no longer required.
The reduction in size of the New South Wales Branch Executive in no way imposes oppressive, unreasonable or unjust conditions on members of the Branch. Each of the offices in the Branch are still open to all eligible members, and the number of remaining offices is sufficient to ensure that the Branch is representative and accountable to its members, the Branch encourages members to participate in the affairs of the Branch, and provides for the democratic functioning of the Branch.
Additionally, the reduction in size of the New South Wales Branch Executive to 20 members will encourage the efficient management of the Branch.” (citations omitted)
I accept Mr Farrow’s statement. In my view, the alterations that abolished the New South Wales Branch offices are not oppressive, unreasonable or unjust.
Current subrule 61(3) provides that the abolition and creation of any offices will not take effect until the next election. As a consequence:
· the current holders of the offices abolished by the proposed alterations are entitled to remain in the office until their term expires, they resign, are removed[7] or die; and
· the newly created offices will be filled in elections[8] due to commence in January 2025.[9]
The alteration to subrule 33(7)(d) also removes the District Office locations of the Queensland Branch. This alteration is not controversial.
On 15 August 2024, Mr Farrow, gave consent under subsection 159(2) of the Act for me 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 rule 26(5), the heading which immediately precedes this subrule has been deleted;
· In rule 55(5), the heading which immediately precedes this subrule has been deleted;
· In rule 61(4), the heading which immediately precedes this subrule has been deleted;
· In rule 82, the heading which immediately precedes this rule has been deleted.
In my opinion, the alterations comply with and are not contrary to the Act, the Fair Work Act 2009, 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
[1] Re Food Preservers’ Union of Australia and Another (1988) 79 ALR 138
[2] The Australian Workers Union [2016] FWCD 5704
[3] Imlach v Daley (1985) 7 FCR 457 at 462
[4] See Saint v Australian Postal and Telecommunications Union (1977) 30 FLR 385 at 393.
[5] Roughan v Australasian Meat Industry Employees’ Union (1992) 36 FCR 536 at 539-541.
[6] Subsection 142(1)(c) provides that rules:
must not impose on applicants for membership, or members, of the organisation, conditions, obligations or restrictions that, having regard to Parliament’s intention in enacting this Act (see section 5) and the objects of this Act and the Fair Work Act, are oppressive, unreasonable or unjust
[7] See Rules 31 & 19.
[8] In addition to Rule 61(3), see s.143(1)(a) of the Act and Grove v Cameron; (1972) 21 FLR 59; Spicer CJ, Joske J, Smithers J; 10 May 1972 per Spicer CJ & Smithers J at 63.
[9] See the AWU’s 6 September 2024 correspondence.
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