Civil Air Operations Officers' Association of Australia, the

[2014] FWCD 4740

[2014] FWCD 4740

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Civil Air Operations Officers' Association of Australia, The
(R2013/504)
MR ENRIGHT	MELBOURNE, 17 JULY 2014
Alteration of other rules of organisation.

[1] On 19 December 2013 the Civil Air Operations Officers' Association of Australia (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 set out alterations to rule 44 of the rules of the organisation. The alterations clarify and tighten the claims procedure to the organisation’s Necessitous Circumstances Fund to rectify issues that have become apparent through decision making associated with claims.

[3] A question arises as to whether the rule alteration process was complied with when transacting the alterations. Rule 49 of the organisation states, in part, ‘The proposed change(s) shall be provided to each member of National Executive giving twenty-eight (28) days notice of the proposal to so amend...’. The declaration by Mr Daryl Hickey, President, states that the rule alterations were made at the December National Executive Meeting held on 5 and 6 December 2013. The declaration also states that the proposed alterations were given to the National Executive on 7 November 2013. For the purpose of notice, neither the day sent nor the day of the meeting are counted.[1]

[1]Re Railway Sleepers Supply Co (1885) 29 Ch D 204

[4] Inquiries made by Commission staff on 17 July 2014 revealed that it is likely that the alterations were passed by the National Executive on 5 December 2013 however the organisation was unable to definitively provide the Commission with the exact date. Consequently, I cannot determine with certainty that the rule altering procedure has been strictly complied with. In accordance with the Fair Work (Registered Organisations) Act

2009, I am required to be satisfied that the alterations have been made under the rules of the

organisation.

[5] As discussed in Master Builders’ Construction and Housing Association of the Australian Capital Territory,[2]the relevant question to be asked is whether it is intended that non-compliance would result in invalidity. Drawing from Project Blue Sky[3]and the application of its principles to the rules of an Association in Re: Australian Principals Federation,[4]the issue is not whether an instance of non-compliance has occurred (and as an inevitable consequence the decision to alter the rules is invalidated). The issue is whether an [2014] FWCD 4740

act which does not comply strictly with the rules has no effect. To determine this, regard must

[2][2013] FWCD 3600

[3]Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28.

[4]Appeal by the Australian Education Union against the decision of Vice-President Ross of 27 January 2006; Lawler VP,

be had to the language, scope and object of the relevant provisions.

[6] Applying this reasoning to the facts before me, the object of rule 49(a)(1) of the organisation rules is that new rules must be made at a meeting and that all members of the National Executive must receive proper notice of the meeting with the full particulars of the alterations. On the basis of the material before me, all members of the National Executive knew the substance of the proposed alterations well in advance of the meeting. In my view, a vote occurring on the first day of the meeting rather than the second is procedural and does not invalidate the decision of the National Executive to alter the rules.

[7] On the information contained in the notice, I am satisfied the alterations have been made under the rules of the organisation. However, I draw to the attention of the organisation that twenty-eight days notice does not include the date that the notice is issued or the date of the vote. It is incumbent on the organisation to ensure that proper notice of rule alterations is given in the future.

[8] 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

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Kaufman SDP, Smith C; 26 September 2006; PR973525.