"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

[2018] FWCD 4188

[2018] FWCD 4188

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

(R2018/55, R2018/56, R2018/57)

MURRAY FURLONG MELBOURNE, 19 JULY 2018

Alteration of other rules of organisation.

1. On 27 March 2018 the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) (the Union) lodged with the Fair Work Commission three declarations and notices setting out particulars of alterations its rules

1. The particulars set out alterations to alterations to Rule 50[1] and Rule 52[2].

1. On 17 July 2018, the Union provided further information about the manner in which the alterations were transacted.

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

1. The alteration to Rule 50 extends existing transitional provisions whose nominal expiry date has passed, pending the Union’s move to a new organisational structure

1. The alterations to Rule 52 abolish the full time, paid offices of National Divisional Assistant Secretary (Vehicle Division) and Regional Secretary – Vehicle Division, New South Wales. In the latter case a new, honorary office of Regional Secretary – Vehicle Division, New South Wales has been created in lieu of its previously paid equivalent.

1. The following principles are relevant to organisational restructures which result in the abolition of offices[3]:

·   an organisation has the right to restructure itself as it sees fit [Williams v Hursey (1959) HCA 51, 103 CLR 30];

·   however, if an organisation seeks to abolish an office mid-term the abolishment must be effected in accordance with the rules and must be bona fide [majority in Saint v Australian Postal and Telecommunications Union & Ors (1976) 13 ALR 649];

·   in addition, any abolition of office must not have an oppressive, unreasonable or unjust effect on members or applicants for membership (in the plural) having regard to the objects of the legislation [Roughan v Australasian Meat Industry Employees’ Union (1992) 36 FCR 536].

1. These principles indicate that the alterations should be certified unless they are found to be not bona fide or that they have an oppressive, unreasonable or unjust effect on members.

1. In support of the alterations to Rule 52, the Union made the following submissions:

The Vehicle Division of the Union is a distinct entity under rule with its own budget allocation which is derived from the dues paid by members allocated to the Region.

Unfortunately, in NSW the membership in the occupations in industries in this area have fallen in recent years - from 2,383 in June 2010, to 1,698 in June 2014 and to 1,156 at 30 June, 2018.

Likewise, at a National level, membership was 17,022 in June 2010, 12,359 in June 2014 and 8,170 at 30 June, 2018.

In light of this declining in membership and the consequent reduction in membership income, voluntary redundancies were offered and expressions of interest received from Warren Butler (Assistant National Secretary - Vehicle Division) and Sean Morgan (NSW Regional Secretary Vehicle Division).

With the support of the Vehicle Division's National Executive Committee and the NSW State Council, the Special National Conference held in March 2018 resolved to accept the redundancy applications on the basis that the positions would be abolished.[4]

1. The offices in question will only be abolished if Rule 52 is altered in the terms sought. There is nothing elsewhere in the Union’s rules that prohibited an alteration of this type. An alteration takes effect only when certified under section 159 of the Fair Work (Registered Organisations) Act 2009 (the Act). Certifying the alterations lead to the offices being abolished in accordance with the Union’s rules.

1. I accept the submissions of the Union about falling membership and income in its Vehicle Division. I also accept that given the budgetary autonomy conferred on the Division, falling membership subscription income would make it increasingly difficult to fund full time offices, both at the Regional and National level. One reaction to that situation would be to seek the relevant Division’s authority to make positions redundant, offer the incumbents voluntary separation packages and, if accepted, abolish the full time paid positions. That is what has occurred in this instance. In the circumstances, abolishing the relevant offices is bona fide.

1. For similar reasons, although abolishing the paid offices means there will be fewer dedicated full time officials to represent the Division’s remaining membership, I do not consider that abolishing the full time offices has an oppressive, unreasonable or unjust effect on members or applicants for membership. This view is strengthened because I know that the Union has begun a separate process to transition away from a Division based structure, so having dedicated full time officials who represent only a particular functional group of members is not the Union’s intended structure.

1. In my opinion, the alterations comply with and are not contrary to the 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 Act.

DELEGATE OF THE GENERAL MANAGER

[1] R2018/56

[2] R2018/55 and R2018/57

[3] See Independent Education Union of Australia [2015] FWCD 8168 at [4].

[4] Correspondence from National Secretary Paul Bastion dated 16 July 2018.

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