Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
[2020] FWCD 3296
•10 July 2020
| [2020] FWCD 3296 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(R2020/64)
| MURRAY FURLONG | MELBOURNE, 10 July 2020 |
Alteration of other rules of organisation.
On 25 May 2020, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to the rules of the Electrical, Energy and Services Division of the CEPU – Section B (the Divisional Rules).
The particulars set out alterations to rule 4 – Membership of the Divisional Rules and entails the insertion of a new sub-rule 4.7. New sub-rule 4.7 provides for the purging of unfinancial members from the register of members by a Divisional Branch Secretary. It further provides the relevant Divisional Branch Secretary will give an affected member 14 days’ notice in writing of the intention to remove his or her details from the register and provides a right of appeal to the Divisional Executive.
Regarding this last aspect of the provision, sub-rule 4.7.6 provides as follows:
4.7.6 Any person whose membership is removed from the register of members under this Rule, may appeal to the Divisional Executive against any action or decision of a Divisional Branch Executive or Divisional Branch Secretary taken pursuant to this rule within fourteen (14) days of that action or decision. The lodging of an appeal will act as an automatic stay of the removal of the person’s membership from the register pending the determination of the appeal by the Divisional Executive. In the event that the Divisional Executive decides to reinstate the person’s membership, and provided they have paid all entrance fees, contributions, levies or fines owed to the Union in accordance with these Rules, they shall be deemed not to have broken their continuity of their membership of the Union (emphasis added).
There is an inherent tension between the effect of the first and second sentences of the sub-rule. More specifically, the first sentence would suggest that the right of appeal provided by the sub-rule applies to a person whose details have already been removed from the register of members. However, the second sentence indicates that the lodgement of such an appeal will act as a “automatic stay” of the removal of the person’s details from the register pending its determination by the Divisional Executive. This would suggest that the right of appeal applies to members who have received notice of the intended removal of their details from the register but before such removal has taken place.
I note that the Fair Work (Registered Organisations) Act 2009 (the Act) does not specifically provide that a member or former member of an organisation must be given a right to appeal the removal of their details from the register of members in circumstances where they have failed to pay dues. Indeed, section 172 of the Act acts as a statutory purging rule by imposing an obligation on an organisation to remove the details of a member from the register if he or she has failed to pay dues and the prescribed period of time has elapsed.
However, in circumstances where a rule of an organisation provides that a member’s details may be removed prior to the time period specified in section 172 of the Act, as with the alteration in the present matter, the exercise of that power in a manner which denies natural justice to an affected member may well be found to operate in an oppressive, unreasonable or unjust manner for the purposes of s. 142(1)(c) of the Act or entitle that member to obtain an order pursuant to s. 164 of the Act directing the relevant officer(s) to perform and observe the rules of the organisation.[1]
Interpreting sub-rule 4.7 in a practical and common-sense manner would suggest that the right of appeal provided therein applies to members who have yet to have their details removed from the register. This is consistent with the overall scheme of the sub-rule particularly the obligation on the relevant Divisional Branch Secretary to provide 14 days’ notice of the intention to remove the details of a member from the register set out in sub-rule 4.7.3.
Of course, this view of the operation of sub-rule 4.7 does not bind the CEPU or its members with respect to any future proceedings or disputes and my strong recommendation is for further alterations to be made to sub-rule 4.7.6 to clarify this issue.
On the information contained in the notice, I am satisfied the alterations have been made under the rules of the organisation.
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
[1] For example, see Barnes v Oliver (1970) 16 FLR 366.
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