Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

[2019] FWCD 1746

[2019] FWCD 1746

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

(R2018/312)

MURRAY FURLONG MELBOURNE, 28 MARCH 2019

Alteration of other rules of organisation.

1. On 17 December 2018, 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 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia – Section A (the National Rules).

1. The particulars set out alterations to the following National Rules:

·  Rule 3 – Objects;

·  Rule 7 – National Council;

·  Rule 7A – National Executive;

·  Rule 8 – National Executive Officers;

·  Rule 9 – Manner of Summoning Meetings;

·  Rule 10 – Expenses for Union Business;

·  Rule 18 – Notification of Industrial Disputes;

·  Rule 19 – Property and Funds of the Union; and

·  Rule 21 – New Rules & Alterations to Rules

1. In his declaration dated 17 December 2018 and filed with the notice of particulars, Mr Allen Hicks, National Secretary, states that the above alterations were made by resolution of the National Council during its annual meeting held on 11 December 2018. In his further declaration dated 18 March 2019, Mr Hicks confirms that the resolution to make the alteration to rule 21 not only met the requirements of rule 7.17 regarding the carrying of resolutions of the National Council generally but also the specific requirements set out in rule 21.4. More specifically, Mr Hicks states that, with respect to the resolution to make the alteration to rule 21, more than 50% of the votes by National Councillors from each of the Divisions of the CEPU were cast in favour of the resolution.

1. On the information contained in the notice, and the further declaration of Mr Hicks dated 18 March 2019, I am satisfied the alterations have been made under the rules of the organisation.

1. The alterations to rules 7 and 7A make minor changes to provisions regarding decisions made by the National Council and the National Executive outside of an attendance meeting.

1. The alteration to rule 9 insert a new sub-rule 9.4 which provides that the requirements regarding notice and circulation of agenda papers shall be directory and not mandatory and that that the accidental or inadvertent omission to give “the full notice” required shall not of itself invalidate the proceedings of a meeting at which such matter is considered. In this regard, I note that existing rule 27.2 provides that a failure to give notice or a defect in calling any meeting shall not invalidate the proceedings unless such failure or defect results in the non-attendance of some member otherwise able and willing to attend.

1. One construction that could be given to the above two provisions is that a defect with respect to the documentation and/or information required by the National Rules to be provided in a notice regarding a meeting will not, of itself, invalidate any such meeting. However, a total failure to give notice will still be governed by the provisions of rule 27.2; such a failure will not invalidate proceedings unless it results in the non-attendance of some member otherwise able and willing to attend.

1. In his correspondence of 18 March 2019, Mr Hicks confirmed that this was also the understanding of the CEPU with respect to new sub-rule 9.4 and existing rule 27.2.

1. The alteration to rule 10 clarifies which body is to meet the expenses associated with meetings of the National Council and when an officer is engaged on business at the request of the National Council, Executive or National Executive Officer.

1. The alteration to rule 19 provides that if a Divisional Branch fails to pay monies owed to the national fund by the end of each half year, it shall be considered unfinancial and delegates from that branch shall not be entitled to vote at any meeting of the National Council or Executive until all monies owed are paid.

1. The alteration to rule 21.2 will remove the specific reference to the prior approval of the relevant Divisional Council with respect to alterations to any set of Divisional Rules. The provision, as altered, will require the prior approval of the “appropriate Division” with respect to any such alteration to the Divisional Rules. This change is broadly consistent with the scheme of the National Rules and the various Divisional Rules as whole which in some instances provide that a Divisional Executive may also initially approve alterations to the Divisional Rules.[1]

1. The notice of particulars also sets out further alterations to rules 7A, 8, 11, 17 and 18 which update references to applicable legislation and the Fair Work Commission.

1. 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, rule 3 of the rules of the Electrical, Energy and Services Division of the CEPU – Section B provides that any alterations to those rules may first be adopted by the Divisional Council or Divisional Executive before being placed before the National Council. Although less clear, rules 16(b) and 36(b) of the rules of the Communications Division of the CEPU – Section D imply that the Divisional Executive may also approve alterations to those rules in addition to the Divisional Conference.

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