Clubs Australia - Industrial

[2013] FWCD 10250

[2013] FWCD 10250

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Clubs Australia - Industrial
(R2013/115)
MR ENRIGHT	MELBOURNE, 31 DECEMBER 2013
Alteration of other rules of organisation.

[1] On 19 December 2013 Clubs Australia - Industrial (CAI) lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to the rules of CAI.

[2] The particulars provide for the insertion of new rule 26A into the rules of CAI. 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] Rule 28 of the CAI rules states, in part, that ‘No new rule shall be made...unless...at a Special Meeting called for that purpose...’. The declaration by Mr Richard Tait, Executive Director of CAI, states that the rule alterations were made at an Annual General Meeting. Clearly, 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.

[4] 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

[1][2013] FWCD 3600

non compliance would result in invalidity. Drawing from Project Blue Sky[2]and the

[2]Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; 28 April 1998

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

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

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.

[2013] FWCD 10250

[5] Applying this reasoning to the facts before me, the object of rule 28 of the CAI rules is that new rules must be made at a meeting of members 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 of members, albeit an Annual General Meeting instead of a Special Meeting. According to the declaration made by Mr Tait, notice containing the full particulars of the alterations was sent to all members in accordance with the notice requirements of the rules. On the basis of the material before me, all members knew the substance of the proposed alterations well in advance of the meeting. In my view, the fact that the meeting was an Annual General Meeting rather than a Special Meeting of members is procedural and does not invalidate the decision of the members of the CAI to make new rule 26A.

[6]        I am satisfied the alterations have been made under the rules of the organisation.

[7] The Amendment Act[4]provides that alterations to rules of an organisation for the purpose of making provision as required by the Amendment Act can be certified by the General Manager during a transition period which commenced on 29 June 2012. Any alteration to rules that is certified during the transition period, however, does not take effect until the date of certification or the commencement of Part 2 of Schedule 1 to the Amendment Act, whichever occurs later. Part 2 of Schedule 1 to the Amendment Act commences on 1 January 2014.[5]

[4]See Item 38 of Schedule 1 to the Amendment Act.

[5]See Section 2 of the Amendment Act.

[8] In my opinion, the alterations comply with and are not contrary to the Fair Work (Registered Organisations) Act 2009 (the RO Act), the Amendment 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 RO Act as modified by item 38 of

Schedule 1 to the Amendment Act.

DELEGATE OF THE GENERAL MANAGER

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Kaufman SDP, Smith C; 26 September 2006; PR973525