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

[2018] FWCD 7530

[2018] FWCD 7530

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

(R2018/290)

MURRAY FURLONG MELBOURNE, 18 DECEMBER 2018

Alteration of other rules of organisation.

1. On 27 November 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 Electrical, Energy and Services Division of the CEPU – Section B (the Divisional Rules).

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

·        11 – Divisional Branches and Sub Branches;

·        15 – Elections

1. On the information contained in the notice, I am satisfied the alterations have been made under the rules of the organisation.

1. The essential effect of the alterations is to increase the number of financial members attached to the Plumbing and Communications Sections of the South Australian and Tasmanian Divisional Branches required in order for such members to be entitled to elect a Branch Organiser to specifically represent their interests. More specifically, the alterations will increase the relevant threshold from 300 financial members to 500 financial members. The relevant threshold pertaining to the other Divisional Branches will remain 300 financial members.

1. On their face, the alterations appear to impose a condition or restriction on the members attached to the Plumbing and Communications Sections of the South Australian and Tasmanian Divisional Branches which is more burdensome than those imposed on members attached to the other Divisional Branches of the Electrical, Energy and Services Division (the Division).

1. In Bramich v Transport Workers Union of Australia[1]the Full Court of the Federal Court, in holding that a rule of an organisation imposed a condition or restriction which was unreasonable or unjust for the purposes of s. 196(c) of the Workplace Relations Act 1996 (the predecessor to s. 142(1)(c) of the Fair Work (Registered Organisations) Act 2009), observed that:

   if an organisation elects to assign members to branches or divisions, it must not do so in a way which significantly discriminates or differentiates between members in the extent of their quality of their participation in the democratic control, or the affairs, of the organisation.[2]

1. In this context, it is important to note that a rule of an organisation which discriminates against certain members in the sense that members in different circumstances are treated differently, is not necessarily unreasonable or unjust for the purposes of s. 142(1)(c) of the Act.[3] Further, the effect of a rule must be considered in the context of the particular circumstances of an organisation and by having regard to the objects of the Act in determining whether it imposes a condition, obligation or restriction which is oppressive, unreasonable or unjust.[4]

1. Given the effect of rule 6.1.4 of the rules of the CEPU – Section A (the National Rules), the South Australian and Tasmanian Divisional Branches are the only Divisional Branches with a sufficient number of members who would otherwise be attached to the Communications and Plumbing Divisions of the CEPU to contain a notable Communications and/or a Plumbing Section.[5] Thus, the alterations in the present matter will only affect the members attached to the South Australian and Tasmanian Branches as the CEPU is presently structured.

1. With regard to the South Australian Divisional Branch, I note that the former South Australian Plumbing Divisional Branch merged with the South Australian Electrical, Energy and Services Divisional Branch in alterations certified on 30 September 2005.[6] These alterations also established a Plumbing Section within the South Australian Divisional Branch as currently reflected in sub-rule 11.7.5.1 of the Divisional Rules.

1. However, pursuant to 6.1.4 of the National Rules, the South Australian Divisional Branch should not contain any notable number of members usually associated with the Communications Division and, thus, should not have a Communications Section. In its correspondence of 10 December 2018, the CEPU confirmed that no such section exists within the South Australian Divisional Branch.

1. The membership of the CEPU in Tasmania is solely attached to the Tasmanian Electrical, Energy and Services Divisional Branch.[7]

1. Rule 11.7.5.1 of the Divisional Rules provides that a Plumbing Section may be established within the Tasmanian Divisional Branch. In its correspondence of 10 December 2018, the CEPU confirmed that a Plumbing Section has not been established in the Tasmanian Branch.

1. Rule 11.7.5.2 of the Divisional Rules provides for the establishment of a Communications Section within a Divisional Branch where membership usually associated with the Communications Division is attached. Rule 11.7.6.2 of the Divisional Rules provides for the establishment of a Branch Organiser to represent the Communications Section within a Divisional Branch and is one of the provisions subject to alteration in the present matter. Both of these provisions were inserted into the Divisional Rules as a result of alterations certified on 15 March 2016.[8]

1. In alterations to the National Rules certified on 11 August 2016,[9] the former Tasmanian Communications Division Branch merged with the Tasmanian Divisional Branch. As noted in Delegate Enright’s decisions of 15 March and 11 August 2016,[10] this merger represented the final step in a contested process which involved a failed plebiscite and proceedings before the Federal Court of Australia with respect to previous proposed alterations to the National Rules designed to facilitate the transfer of a Divisional Branch from one Division of the CEPU to another.

1. The alterations to the National Rules included the insertion of rule 36 which is a transitional rule and set outs the machinery of the merger. A key aspect of that provision is the establishment of several offices within the merged Branch to specifically represent the members of the former Tasmanian Communications Division Branch. The terms of such officers shall cease upon the declaration of the ballot in the next quadrennial elections which are due to be held in 2019.

1. Rule 36 further provides for the establishment of a Communications Section within, and a Communications Advisory Committee to the Divisional State Council of, the Tasmanian Divisional Branch. These provisions are also reflected in the Divisional Rules.[11]

1. Of particular relevant to the present matter, the alterations to the Divisional Rules and the National Rules referred to above included the establishment of a Branch Organiser to specifically represent the members of the Communications Section. In this regard, I note that rule 36.7.4.3 of the National Rules provides for the election of this official who shall hold office until the declaration of the ballot in the next quadrennial elections.

1. Given the above, it is apparent that the alterations in the present matter will potentially affect:

·        The members attached to the Plumbing section of the South Australian      Divisional Branch; and

·        The members attached to the Communications Section of the Tasmanian    Divisional Branch.

1. With respect to the South Australian Divisional Branch, the CEPU advised in its correspondence of 10 December 2018 that the Plumbing/Fire Protection Section consists of more than 500 members. Thus, the Divisional Rules will continue to provide for the election of a Branch Organiser to represent the members of the Plumbing/Fire Protection Sections if the alterations are certified given the present structure of the South Australian Divisional Branch.

1. Regarding the Tasmanian Divisional Branch, the CEPU advised that the membership of the Communications Section is currently below 500 members. Thus, the alterations, if certified, will effectively mean that the position of Branch Organiser is not established and subject to an election for the purposes of the upcoming quadrennial elections to be held in 2019.

1. In this regard, I note that pursuant to the Divisional Rules,[12] the members attached to the Communications Section of the Tasmanian Divisional Branch will continue to be entitled to the election of a Divisional State Councillor elected by and from those members. The interests of such members will also be represented via the Communications Advisory Committee of the Divisional State Council.[13] Such members will also be able to nominate for and elect any potential position of Branch Organiser established within the Tasmanian Divisional Branch pursuant to sub-rule 12.1 of the Divisional Rules.

1. The operating report attached to the most recent financial return filed by the Tasmanian Divisional Branch provides that it had approximately 2150 members as at 31 December 2017.[14]

1. Considered in the context of the rules of the CEPU as a whole and the present structure of the Tasmanian Divisional Branch, in my view, the alterations do not impose an unreasonable burden upon the members attached to the Communications Section of the Tasmanian Divisional Branch. Subject to the requirements set out in the Divisional Rules, such members will be able to nominate for and elect the various offices and non-office positions within the Tasmanian Divisional Branch and will be entitled to a Divisional State Councillor to specifically represent their interests.

1. Regarding any unreasonableness or injustice visited upon the members attached to the Plumbing Section of the South Australian Divisional Branch and the Communications Section of the Tasmanian Divisional Branch compared to the members attached to the other branches of the Division, I simply note that those other branches do not contain either a notable Plumbing or Communications Section. Thus, no issue of unreasonableness or injustice can arise in the context of the present structure of the CEPU in that regard. However, should further alterations to the National Rules be made such that a notable number of members usually associated with the Plumbing or Communications Divisions become attached to one or more of those other branches, then the effect of the alterations in the present matter may render sub-rules 11.7.6 and 15.6 contrary to subsection 142(1)(c) of the Act.

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] (2000) 97 FCR 204.

[2] Ibid at 214 per curiam.

[3] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Gray (2012) 207 FCR 548 at 557, per curiam.

[4] Doyle v The Australian Workers’ Union (1986) 12 FCR 197 at 206, per curiam.

[5] The Queensland and Northern Territory Divisional Branch and the Western Australian Divisional Branch have some very limited coverage with respect to members usually associated with the Plumbing Division – see rule 6.1.4.1 of the National Rules.

[6] Matter R2005/183.

[7] See rule 6.1.4 of the National Rules.

[8] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2016] FWCD 1121

[9] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2016] FWCD 4835.

[10] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2016] FWCD 1121; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FWCD 4835.

[11] Rules 11.7.5.2 of the Divisional Rules.

[12] Rules 11.7, 15.10 and 15.19.

[13] Rule 11.7.5.2 of the Divisional Rules.

[14] Accessible at

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