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

[2018] FWCD 6837

[2018] FWCD 6837

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

(R2018/235)

MURRAY FURLONG MELBOURNE, 21 NOVEMBER 2018

Alteration of other rules of organisation.

1. On 10 September 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 New South Wales Divisional Branch of the Electrical, Energy and Services Division of the CEPU – Section B2 (the Branch Rules).

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

17 – Time and Place of Meetings;
20 – Government;
22 – Elections of Officers, Divisional State Councillors and Delegates;
26 – NSW Divisional Branch Treasurer;
34 – Control of Funds; and
41 – Alteration of Rules.

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

1. The alterations to rules 20 and 22 involve the establishment of a new office of Affirmative Action (Women) Councillor on the Divisional State Council, the governing body of the New South Wales Divisional Branch (the Branch). Only female members of the Branch will be eligible to nominate for this office.

1. This aspect of the alterations requires a consideration of subsections 159(1)(a) and (b) of the Fair Work (Registered Organisations) Act 2009 (the Act) which provide as follows:

(1)  An alteration of the rules (other than the eligibility rules) of an organisation does not take effect unless particulars of the alteration have been lodged with the FWC and the General Manager has certified that, in his or her opinion, the alteration:

(a) complies with, and is not contrary to, this Act, the Fair Work Act, modern awards and enterprise agreements; and

(b)  is not otherwise contrary to law…

1. Subsection 142(1) of the Act sets out general requirements with regard to the rules of organisations registered under the Act including that they:

(a) must not be contrary to, or fail to make a provision required by this Act, the Fair Work Act, a modern award or an enterprise agreement, or otherwise be contrary to law; and

…

(c) must not impose on applicants for membership, or members, of the organisation, conditions, obligations or restrictions that, having regard to Parliament's intention in enacting this Act (see section 5) and the objects of this Act and the Fair Work Act, are oppressive, unreasonable or unjust; and

(d)  must not discriminate between applicants for membership, or members, of the organisation on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

1. The CEPU filed submissions together with the notice of particulars in this matter addressing the issue of the establishment of this office and how the relevant alterations are consistent with the Act in this regard.

Contrary to law

1. For the purposes of subsections 159(1)(b) and 142(1)(a) of the Act, the Sex Discrimination Act 1984 (the SDA) governs discrimination on the basis of sex at a federal level.

1. Section 19 of the SDA provides as follows:

(1)  It is unlawful for a registered organisation, the committee of management of a registered organisation or a member of the committee of management of a registered organisation to discriminate against a person, on the ground of the person's sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities:

(a)  by refusing or failing to accept the person's application for membership; or

(b)  in the terms or conditions on which the organisation is prepared to admit the person to membership.

(2)  It is unlawful for a registered organisation, the committee of management of a registered organisation or a member of the committee of management of a registered organisation to discriminate against a person who is a member of the registered organisation, on the ground of the member's sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities:

(a)  by denying the member access, or limiting the member's access, to any benefit provided by the organisation;

(b)  by depriving the member of membership or varying the terms of membership; or

(c)  by subjecting the member to any other detriment.

1. I note that s. 19 of the Act has previously been held to apply to the operation of the rules of an organisation registered under the Act.[1] Section 5 the SDA defines “discrimination” in terms of both “direct discrimination” and “indirect discrimination”.

1. However, s. 7D of the SDA provides for “special measures” which exclude actions which would otherwise be deemed to be discriminatory and, therefore, unlawful pursuant to its provisions. This provision received judicial consideration for the first time in Jacomb v Australian Municipal Administrative Clerical and Services Union[2]. In that matter, the Court considered the rules of an organisation which had the effect of reserving positions on its governing bodies exclusively for women. Crennan J held that the relevant rules of the organisation constituted a special measure within the meaning of s. 7D of the SDA as they were made for the purpose of achieving substantive equality. Thus, the rules were found not to be contrary to the SDA.

1. In its submissions, the CEPU advised that the alterations concerning the establishment of the office of Affirmative Action (Women) Councillor seek to advance genuine and relative equality of female members of the Branch. In this regard, the CEPU points out that at the last scheduled elections held in 2015 (matter E2015/234), only two women were elected to any office within the Branch. The CEPU submits that the purpose of the alterations is to remedy this disproportionately low level of representation. I note that pursuant to rule 20.3.3 of the Branch Rules, the Divisional State Council currently consists of the Divisional Branch Secretary, Divisional Branch President and six Divisional State Councillors representing the Sections of the Branch.

1. The CEPU further submits that the relevant alterations to the Branch Rules will align them with the rules of the broader Electrical, Energy and Services Division of the CEPU – Section B (the Divisional Rules) which already provide that the Divisional State Council of each Divisional Branch shall include the office of Affirmative Action (Women) Councillor.[3] Further, the establishment of this office within the Branch will create a larger pool of candidates for the office of Affirmative Action (Women) Councillor on the Divisional Council who are elected by and from the corresponding affirmative action officers on the Divisional State Council.[4]

1. Given the above, I am satisfied that the alterations regarding the establishment of the Affirmative Action (Women) Councillor are not contrary to the SDA.

Consistency with s. 142(1)(d) of the Act

1. As noted above, subsection 142(1)(d) provides that the rules of an organisation must not discriminate between applicants for membership or members on the basis of sex. As I previously observed in The Association of Professional Engineers, Scientists and Managers, Australia [2017] FWCD 4034 (APESMA)[5], the Act does not define or provide guidance as to what “discriminate” means beyond the qualification set out in subsection 142(2) which is not relevant to the alterations in the present matter.

1. I shall adopt my reasoning set out in APESMA for the purposes of determining whether the alterations in the present matter are contrary to subsection 142(1)(d) of the Act. In this regard, I am satisfied that the establishment of a single office of Affirmative Action (Women) Councillor on the Divisional State Council of the Branch is relevant and appropriate to the object of achieving substantial equality between male and female members in terms of representation on the governing body of the Branch.

1. I am further satisfied that the alterations are consistent with the objects set out in s. 5 of the Act in this regard.

1. Given the above, I am satisfied that the alterations establishing the office of Affirmative Action (Women) Councillor do not discriminate between applicants for membership, or members, on the basis of sex contrary to s. 142(1)(d) of the Act.

Consistency with s. 142(1)(c) of the Act

1. Subsection 142(1)(c) of the Act provides that the rules of an organisation must not impose on members, conditions, obligations or restrictions that, having regard to the objects of the Act, are oppressive, unreasonable or unjust.

1. In its submissions, the CEPU concedes that by providing that only female members may nominate for the office of Affirmative Action (Women) Councillor the alterations impose a condition or restriction on the members of the Branch. However, as further noted by the CEPU, the key question to determine is whether the imposition of that condition or restriction is oppressive, unreasonable or unjust for the purposes of s. 142(1)(c) of the Act.

1. In Doyle v Australian Workers’ Union[6] a Full Court of the Federal Court of Australia observed that s. 140(c) of the Conciliation and Arbitration Act 1904 (the predecessor to s. 142(1)(c) of the Act) “does not operate to give all members, or even all financial members, automatic right to stand for office”.[7] The Court went on to state that:

One of the chief objects of the Act is to encourage the democratic control of organisations and the full participation by members in their affairs; s. 140(c) does not require a positive provision in the rules to this effect; it only requires that that, amongst other objects and purposes, be taken into account in determining whether a condition, obligation or restriction is oppressive, unreasonable or unjust.[8]

1. As noted above, the Affirmative Action (Women) Councillor will be an additional office on the Divisional State Council of the Branch which currently comprises the Divisional Branch Secretary, Divisional Branch President and six Divisional State Councillors. The alterations will also align the Branch Rules with those that operate with respect to the other Divisional Branches of the Electrical, Energy and Services Division in establishing such an office and provide for a larger pool of candidates for the corresponding office on the Divisional Council.

1. The alterations are intended to achieve a level of genuine and relative equality of the female members of the Branch by reserving a single office for such members. Taking into account the objects of the Act set out in s. 5, in my view, the alterations do not impose a condition or restriction which is oppressive, unreasonable or unjust for the purposes of s. 142(1)(c) of the Act.

1. Finally, I am further satisfied that the alterations are not contrary to the  Fair Work Act 2009, modern awards and enterprise agreements for the purposes of ss. 159(1)(a) and 142(1)(a) of the Act.

1. For the reasons set out above, in my opinion, the alterations comply with and are not contrary to the 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 Fair Work (Registered Organisations) Act 2009.

DELEGATE OF THE GENERAL MANAGER

[1] Appeal by Jacomb v Australian Municipal Administrative Clerical and Services Union PR943240, Senior Deputy President Lacy; 5 September 2004; In Jacomb v Australian Municipal Administrative Clerical and Services Union [2004] FCA 1250 it appears it was assumed that s. 19 applied to the operation of the rules of an organisation.

[2] [2004] FCA 1250.

[3] Divisional Rules, rule 11.7.12.

[4] Divisional Rules, rule 15.18.4

[5] The Association of Professional Engineers, Scientists and Managers, Australia [2017] FWCD 4034 at [35].

[6] (1986) 68 ALR 591.

[7] Ibid at 596, Evatt, Sheppard & Gray JJ.

[8] Ibid at 601, Evatt, Sheppard & Gray JJ.

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