Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
[2020] FWCD 2663
•9 June 2020
| [2020] FWCD 2663 |
| 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
(R2020/49)
| MURRAY FURLONG | MELBOURNE, 9 June 2020 |
Alteration of other rules of organisation.
On 20 April 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 CEPU – Section A (the National Rules).
The particulars set out alterations to rules 6, 9, 10, 15, 30, 31 and 36, and the deletion of rules 7A and 13A, of the National Rules.
The effect of the alterations is to abolish the National Executive of the CEPU. The alterations make clear that this abolition will occur upon the date of their certification.
In order to appreciate the impact of the alterations in the present matter it is necessary to consider the role of the National Executive within the broader context of the structure of the CEPU pursuant to the rules of the CEPU.
The structure of the CEPU is fundamentally based on its three Divisions, namely the Electrical, Energy and Services Division, the Plumbing Division and the Communications Division to which its members and officers are attached. Each Division is governed by a distinct set of rules (the Divisional Rules)[1] to manage its affairs and is afforded considerable autonomy to determine matters which do not directly affect the members of another Division.[2] Each Division is governed by a Divisional Council (or Divisional Conference in the case of the Communications Division) and a Divisional Executive which can generally exercise the powers and functions of the Divisional Council.
The Divisional Rules also establish various Divisional Branches within each Division organised on a geographic and/or industry basis which also have a high level of autonomy with respect to matters pertaining to members attached to a particular branch. Each Divisional Branch is governed by a Committee of Management, State Council and/or a Divisional Branch Executive.
The National Council is the principal organisation-wide governing body of the CEPU with the “exclusive power to deal with matters affecting more than one division and the general control and conduct of the business and affairs”[3] of the organisation and is invested with the non-exhaustive list of functions listed in sub-rule 7.1. The National Council consists of the Divisional Secretaries of each Division and further representatives from each Division or Divisional Branch who are members of the National Council by virtue of being directly elected or on an ex-officio basis.[4]
The National Executive may, subject to the overriding control of the National Council, exercise the powers of National Council in between meetings of the National Council save for the power to make alterations to the rules of the CEPU and the power to take disciplinary action against members and officers.[5] The National Executive is composed of the four National Executive Officers (National Secretary, National President, Assistant National Secretary and the National Vice President) and twelve National Executive Members representing the Electrical, Energy and Services and Plumbing Divisions and the Industry Groups within the Communications Division elected by and from the National Councillors from the relevant Division or Industry Group. In the case of the Communications Division, the National Rules also provide for the election of Alternate National Executive Members.[6]
The abolition of the National Executive necessarily also entails the abolition of the offices of National Executive Member before the expiry of the terms of the persons holding those officers pursuant to the existing rules of the CEPU. As noted in the cover letter of Mr Allen Hicks, National Secretary, dated 20 April 2020, the declaration of results for the last election for those offices was issued relatively recently in December 2019.
In Imlach v Daley (1985) 7 FCR 457 Evatt and Northrop JJ observed that:
…an organisation, provided it complies with the requirements of the Act, the regulations and its rules, is able to mould its internal structures as it thinks fit.[7]
The alterations in the present matter give rise to two particular considerations in terms of compliance with the requirements of the Fair Work (Registered Organisations) Act 2009 (the Act).
Firstly, subsection 141(1)(c) of the Act provides that the rules of an organisation may provide for the removal from office of a person elected to that office only in circumstances where the person has been found guilty under the rules of the organisation of certain specified matters or has ceased to be eligible to hold the office. Despite several single member decisions of the Federal Court of Australia to the contrary,[8] the weight of authority indicates that subsection 141(1)(c) of the Act does not apply to an abolition of an office occurring as consequence of an alteration to the rules of an organisation provided that the alteration is effected in accordance with the rules and made for a bona fide and proper purpose.[9]
In his correspondence Mr Hicks advised that the rationale behind the abolition of the National Executive includes:
· Simplifying the governance structure of the CEPU at a national level;
· Removing a governing committee which has been moribund for several years; and
· Mitigating the risks and reducing the burden on the CEPU associated with its obligations to keep and lodge records with the Registered Organisations Commissioner under Part 2 of Chapter 8 of the Act, the need for officers to undertake financial governance training under Part 2A of Chapter 9 of the Act and the requirement to lodge the prescribed information in relation to vacancies arising on the National Executive pursuant to Part 2 of Chapter 7 of the Act.
The brief exposition provided above of the structure of the CEPU and its governing bodies at a Divisional Branch, Divisional and national level gives an indication of the complexity of the organisation in terms of the number and functions of its officers and committees. The most recent annual return filed by the CEPU with the Registered Organisations Commissioner on 27 March 2020 pursuant to s. 233(1) of the Act demonstrates the large number of offices within the organisation.[10]
The difficulties and risks the CEPU faces in complying with its reporting obligations under Part 2 of Chapter 8 of the Act with such a large number of officers and a complex structure was recently illustrated in Registered Organisations Commissioner v Communications, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2020] FCA 96.
Given the above, I am satisfied that the alterations have been mode for a bona fide and proper purpose and on the information contained in the notice, I am further satisfied the alterations have been made under the rules of the CEPU.
Secondly, the abolition of an office during the term of the person holding that office may potentially be found to give rise to the imposition of a condition which is “oppressive, unreasonable or unjust” for the purposes of s. 142(1)(c) of the Act.[11] However, that provision is not concerned with the effect of the rules upon the personal fortunes of an individual officer or member but whether an oppressive, unreasonable or unjust burden has been imposed upon a significant number of members.[12]
A member of the CEPU is simultaneously a member of a Divisional Branch, a Division and the organisation itself and he or she is governed and represented by various committees at each of those three levels. The National Executive itself may only exercise its functions subject to the control of the National Council and, based on Mr Hicks’ advice, is a moribund body. The National Council will continue to govern and represent the membership at a national level and the offices of National Executive Member are elected by and from the members of the National Council.
Thus, the abolition of the National Executive and the consequential loss of the offices of National Executive Member is unlikely to have a notable impact upon the membership of the CEPU generally regarding their participation in its affairs and the democratic functioning of the organisation. Regarding the persons currently holding the office of National Executive Member, I note that they will continue to hold office on the National Council.
In my view, taking into account the objects of the Act, particularly the efficient management, effective operation and high standards of accountability of organisations,[13] I am satisfied that the alterations do not operate in an oppressive or unreasonable manner for the purposes of subsection 142(1)(c) of the Act.
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
<PR719538>
[1] Rules of the Electrical, Energy and Services Division of the CEPU – Section B, Rules of the Plumbing Division of the CPU – Section C and Rules of the Communications Division – Section D.
[2] Rule 6.2 of the National Rules.
[3] Rule 7.1.1 of the National Rules.
[4] Rule 7.10 of the National Rules.
[5] Rule 7A.2 of the National Rules.
[6] Rule 7A.1 of the National Rules.
[7] Imlach v Daley (1985) 7 FCR 457, 462.
[8] For example, Saint v Australian Postal and Telecommunications Union (1977) 30 FLR 385, 397 per St John J; Copeland v Ludwig (1994) 57 IR 436, 446.
[9] See Saint v Australian Postal and Telecommunications Union (1977) 30 FLR 385 at 393 per Dunphy & Evatt JJ; Hills v Higgins (1982) 61 FLR 131, 143; Roughan v Coulson (1982) 3 IR 393, 396; Benson v Construction, Forestry, Mining and Energy Union (1995) 60 IR 394, 401-402
[10] Accessed at
[11] Benson v Construction, Forestry, Mining and Energy Union (1995) 60 IR 394.
[12] Ibid, 405-406; Roughan v The Australasian Meat Industry Employees Union (1992) 43 IR 193, 197.
[13] Fair Work (Registered Organisations) Act 2009, s. 5.
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