Civil Air Operations Officers' Association of Australia, the; Civil Air Operations Officers' Association of Australia, the; Civil Air Operations Officers' Association of Australia, the

[2014] FWCD 271

[2014] FWCD 271

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
The Civil Air Operations Officers' Association of Australia
(R2013/104, R2013/290 & R2013/505)
MR ENRIGHT	MELBOURNE, 10 JANUARY 2014
Alteration of other rules of organisation.

[1] On 31 May 2013, the Civil Air Operations Officers’ Association of Australia (‘the

organisation’) lodged with the Fair Work Commission two notices and declarations setting
out particulars of alterations to the rules of the organisation.

[2] The first set of alterations (R2013/104) amend rule 3 and insert new rules 41A, 41B, 41C, 41D and 41E into the rules of the organisation. The alterations were made for the purpose of complying with provisions of the Fair Work (Registered Organisations)

Amendment Act 2012 (the Amendment Act) regarding the rules of registered organisations. In

particular, the alterations provide for specified disclosures, the implementation of policies relating to expenditure and the mandatory training of officers with duties that relate to the financial management of the organisation.

[3] The second set of alterations (R2013/290) delete existing rule 20 and amend rules 21, 28, 33, 34, 38, 41 and 44 of the rules of the organisation. The alterations were made for the purpose of ensuring the definition of ‘officer’ contained within the rules of the organisation reflected the statutory definition within section 6 of the Fair Work (Registered Organisations)

Act 2009 (the RO Act).

[4] On 23 September 2013, staff of the Commission contacted the organisation to seek further clarification on the process used to alter the rules, to provide information on the changes to the Amendment Act and outline possible concerns with the alterations provided for in R2013/290.

[5] Further information was supplied by the organisation on 1 November 2013 and an

additional notification of alterations to the rules of the organisation was received by the
Commission on 19 December 2013.

[6] The third set of alterations (R2013/505) amend proposed rules 41C and 41D of the first alteration and alter existing rules 33(c), 33(f)(i), 38(d) and 38(e) of the rules of the organisation. The alterations were made for the purpose of addressing the changes to the Amendment Act made on 28 June 2013 and removing consequential errors arising from the second set of alterations.

[2014] FWCD 271

[7] A question arises as to whether the rule alteration process was complied with when transacting the third set of alterations. Rule 49 of the organisation states, in part, that ‘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. While it is unclear on which date the meeting voted, if the vote occurred on 5 December, one of the rules associated with the organisation’s rule altering procedure has not been strictly complied with. In accordance with the Act, I am required to be satisfied that the alterations have been made under the rules of the organisation.

[8] As discussed in Master Builders' Construction and Housing Association of the Australian Capital Territory[1]the relevant question to be asked is whether it is intended that

non compliance would result in invalidity. Drawing from Project Blue Sky[2]and the application of its principles to the rules of an Association in Re: Australian Principles Federation,[3]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 act which does not comply strictly with the rules has no effect. To determine this, regard must be had to the language, scope and object of the relevant provisions.

[1][2013] FWCD 3600.

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

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

[9] 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 must receive proper notice of the meeting with the full particulars of the alterations. In this instance the new rules were made at a meeting that possibly had twenty seven days notice instead of twenty eight. On the basis of the material before me, all Executive members knew the substance of the proposed alterations well in advance of the meeting. In my view, the fact that the vote may have occurred 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.

[10] Therefore on the information contained in the notices and further information, I am satisfied all three sets of alterations have been made under the rules of the organisation. However, I draw to the attention of the organisation that 28 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.

[11] On 1 November 2013 and 7 January 2014, the Commission received consent from Mr Daryl Hickey, President, under subsection 159(2) of the Fair Work (Registered

Organisations) Act 2009, for the Delegate to make an amendment to the alterations for the

purpose of correcting typographical, clerical or formal errors. Accordingly, within the second set of alterations, rule 41(b), the statement ‘one members of its Committee’ is corrected to ‘one member of its Committee’ and within the third set, the Roman numerals in 41C(b)(b) are corrected from iii and iv to i and ii respectively.

[2014] FWCD 271

[12] 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

Printed by authority of the Commonwealth Government Printer

<Price code A, PR546697>

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