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

[2018] FWCD 5603

[2018] FWCD 5603

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

(R2018/86)

MURRAY FURLONG MELBOURNE, 18 SEPTEMBER 2018

Alteration of other rules of organisation.

1. On 12 April 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), the rules of the Electrical, Energy and Services Division of the CEPU – Section B (the Divisional Rules) and the rules of the New South Wales Divisional Branch of the Electrical, Energy and Services Division of the CEPU – Section B2 (the Divisional Branch Rules).

1. The particulars set out alterations to alterations to:

·  Rules 7 and 35 of the National Rules;

·  Rule 39 of the Divisional Rules; and

·  Rules 17, 20, 22, 26 and 34 of the Divisional Branch Rules.

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

1. On 24 May 2018, the Fair Work Commission (the Commission) wrote to Mr Allen Hicks, National Secretary of the CEPU, pointing out several inconsistencies that arose regarding the interaction between the existing provisions of, and the alterations to, the Divisional Branch Rules, sought further information regarding the effect and operation of several aspects to the alterations to the Divisional Branch Rules and requested consent to correct apparent errors in the notice of particulars.

1. On 5 July 2018, Mr Hicks wrote to the Commission consenting to the correction of the errors identified in the Commission’s correspondence of 24 May 2018 and indicated that the CEPU wished to sever the alterations to the Divisional Branch Rules from the alterations to the National Rules and the Divisional Rules. In his further correspondence of 28 August 2018, Mr Hicks formally withdrew the alterations to the Divisional Branch Rules.

1. I am satisfied that the alterations to the Divisional Branch Rules are severable from the alterations to the National Rules and the Divisional Rules in light of the principles set out by the majority in ReFood Preservers’ Union of Australia (1998) 79 ALR 138.[1] In particular, I am satisfied that the alterations to the National Rules and the Divisional Rules operate completely independently of the alterations to the Divisional Branch Rules and the severance of the latter will not affect the meaning and effect of the alterations to the National Rules and the Divisional Rules.

1. On 5 July 2018, Mr Hicks gave consent, under subsection 159(2) of the Fair Work (Registered Organisations) Act 2009, for the Delegate to make various amendments to the alterations for the purpose of correcting typographical, clerical or formal errors. Accordingly the following corrections have been made:

·  The second sentence of sub-rule 7.7.3 of the National Rules has been deleted and replaced with the words, as the third sentence of that sub-rule, “Failure to lodge a vote within the prescribed time means the vote will not be recorded”;

·  The word “votes” has been retained in the first sentence of sub-rule 7.7.3; and

·  The word “The” has been inserted at the commencement of sub-rule 7.7.3.

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 the alterations to the National Rules and the Divisional Rules accordingly under subsection 159(1) of the Fair Work (Registered Organisations) Act 2009.

DELEGATE OF THE GENERAL MANAGER

[1] Re Food PreserversUnion of Australia (1988) 79 ALR 138, 145, Northrop and Ryan JJ.

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