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

[2016] FWCD 4835

[2016] FWCD 4835

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

(R2016/115)

MR ENRIGHT	MELBOURNE, 11 AUGUST 2016
Alteration of other rules of organisation.

[1]        On 17 June 2016, 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).

[2]        The particulars set out alterations to rules 6.1.4 and 6.2 of, and the insertion of a new

rule 36 into, the National Rules. The essential effect of the alterations is to merge the

Tasmanian Communications Division Branch (the TCD Branch) with the Tasmanian

Divisional Branch of the Electrical, Energy and Services Division (the TED Branch).

[3]        In order to achieve this outcome, the alterations to the existing provisions of the

National Rules include:

 amendments to rule 6.1.4 which will essentially re-allocate to the Electrical,

Energy and Services Division (the Electrical Division) the members of the CEPU

in Tasmania currently attached to the Communications Division; and

 an amendment to rule 6.2 which will specifically exclude the members located in

Tasmania from the effect of sub-rule 6.2.1.6 which provides that the

Communications Division shall have autonomy with regard to matters pertaining

solely to members attached to that Division.

[4]        As noted above, the alterations also include the insertion of a proposed new rule 36

which is a transitional rule setting out the mechanics of how the merger is to occur. That rule

is expressed to apply not withstanding any other provision of the National Rules and the

various Divisional Rules. The relevant transitional period is defined in the rule as the period

commencing on the “merger date” and ceasing upon the declaration of the ballot of the next

quadrennial election for offices within the Electrical Division. The term “merger date” is

defined as the date the alterations are certified. The key aspects of rule 36 include:

 that on the merger date, the TCD Branch will merge with the TED Branch;

[2016] FWCD 4835

 that all members of the TCD Branch shall become members of the merged TED

Branch. The continuity of the membership of, and any voting rights and privileges

currently enjoyed by, such members shall be maintained and preserved;

 that any period of membership and/or financial membership of the CEPU in the

TCD Branch shall be deemed to be membership of the CEPU in the merged TED

Branch;

 that the assets, funds and property, and the debts and liabilities, of the TCD Branch

shall become those of the merged TED Branch;

 that all offices in both the TCD Branch and TED Branch shall be abolished;

 that the holders of offices within the TED Branch immediately before the merger

shall assume corresponding offices in the branch upon the merger;

 that there shall be several new offices within the merged TED Branch and a

Divisional Branch Organiser to specifically represent the members currently

attached to the TCD Branch;

 that the terms of office of the above newly established offices shall cease upon the

declaration of the ballot of the next quadrennial election for offices within the

Electrical Division; and

 that there shall be a Communications Section within, and a Tasmanian

Communications Advisory Committee to the Divisional State Council of, the

merged TED Branch. The latter shall have the power to make recommendations to

the Divisional State Council with regard to matters affecting the members attached

to the Communications Section and shall be composed of the members of the

Branch Committee of Management of the TCD Branch immediately before the

merger.

[5]        On the information contained in the notice, I am satisfied the alterations have been

made under the rules of the organisation.

[6]        The alterations in the present matter represent the final step in the process of formally

enacting the merger of the TCD and TED Branches and, in my view, require the consideration

of three particular matters in order to be satisfied that they comply with and are not contrary

to the Fair Work (Registered Organisations) Act 2009 (the Act). I shall deal with each in turn

below.

[7]        Firstly, subsection 142(1)(c) of the Act provides that the rules of an organisation must

not impose upon members “conditions, obligations or restrictions” that are “oppressive,

unreasonable or unjust”. Several authorities indicate that, in the context of rules made or

actions undertaken pursuant to a restructure of an organisation, the abolition of an office or

the reassignment of the members of a branch may infringe this subsection. This body of case

of law represents a restriction on the capacity of an organisation to otherwise organise its

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“internal structures as it thinks fit”.

[2016] FWCD 4835

[8]        For example, in Benson v Construction, Forestry, Mining and Energy Union (1995) 60

IR 394 (Benson) it was held that the abolition of an office placed a burden that was

oppressive, unreasonable or unjust upon “a significant number of applicants for membership

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or members” in circumstances where the affected members had approved a previous

amalgamation of their organisation on the basis of a set of rules which provided for that office

and would look to that particular official for assistance after the amalgamation had occurred.

It is not sufficient however, that the relevant condition, obligation or restriction is oppressive,

unreasonable or unjust with reference to a single member or office holder for any potential

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infringement of section 142(1)(c) to arise.

[9]        In Bramich v Transport Workers’ Union of Australia (2000) 97 FCR 204 (Bramich)

the Full Court of the Federal Court held that:

“if an organisation elects to assign its members to branches or divisions, it must not do

so in a way which significantly discriminates or differentiates between members in the

extent of quality of their participation in the democratic control, or the affairs, of the

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organisation”.

[10]      In my view, the alterations in the present matter are readily distinguishable from the

circumstances of Benson and Bramich in a number of significant ways. There is nothing in the

alterations which would suggest that the members attached to the TCD Branch will not be

afforded the rights and privileges currently enjoyed by the members of the TED Branch and,

as noted above, the existing voting rights, privileges and continuity of membership of those

members shall be preserved. Although the members of the TCD Branch will lose their status

as a separate divisional branch, the effect of the alteration does not appear to significantly

discriminate against those members compared to the rest of the membership of the CEPU in

the quality of their participation in its affairs.

[11]      As noted above, one effect of the alterations is to abolish the offices within both the

TCD and TED Branches. However, the alterations also make provision for the establishment

of new offices corresponding to those currently within the TED Branch and several additional

offices specifically to represent the members of the TCD Branch.

[12]      In this regard, I observe that the rules of the Electrical Division – Section B (the

Electrical Divisional Rules) make provision for the establishment of a Communications

Section, a Communications Advisory Committee and a Divisional Branch Organiser to

represent the interest of members within the Communications Section in certain

5

circumstances within a branch of the Electrical Division. These provisions will apply upon

the cessation of the transitional period and will ensure that the members currently attached to

the TCD Branch will continue to enjoy a level of separate representation on Divisional State

Council.

[13]      I further note that the alterations in the present matter may represent a significant

departure from the structure of the CEPU and the state of its rules at the time the organisation

was formed through the amalgamation of the Electrical, Electronic, Plumbing and Allied

Workers Union of Australia with the Communications Workers Union of Australia on 1

August 1994. However, that amalgamation occurred more than two decades ago and the

circumstances of the CEPU and its Divisions have obviously also significantly changed over

this period. The Act does not and cannot require an organisation to maintain an ossified

structure inconsistent with its changing circumstances.
[2016] FWCD 4835

[14]      Secondly, subsection 143(1)(a) of the Act provides that the rules of an organisation

must provide for the election of the holder of each office in the organisation by a direct voting

system or a collegiate electoral system. As noted above, proposed new rule 36 provides that

all offices within both the TCD and TED Branches shall be abolished and that the current

holders of offices within the TED Branch shall assume corresponding offices in the merged

branch. Regarding the officers currently attached to the TCD Branch, the members of the

Branch Committee of Management shall form an Advisory Committee. The members of the

Advisory Committee shall elect four offices of Delegate to Divisional Branch Conference,

two offices of Divisional State Councillor and an office of Divisional Branch Executive

Member representing the members currently attached to the TCD Branch.

[15]      Prima facie, in providing that the officers of the TED Branch shall assume a new

office after the merger, the alterations are inconsistent with the literal requirements of s.

143(1)(a) of the Act. However, the requirements regarding the election of office holders set

out in the Act must be interpreted in light of authority which indicates that a more

comprehensive and nuanced approach is to be adopted in the circumstances of the matter

before me.

[16]      In Bicknell v Amalgamated Engineering Union (1969) 15 FLR 215 (Bicknell) a Full

Bench of the Commonwealth Industrial Court held that a rule which appointed existing office

holders to newly established offices was not contrary to the Conciliation and Arbitration Act

1904. At the relevant time, the Conciliation and Arbitration Regulations provided that “the

affairs of [an organisation] shall be regulated by rules providing for...the election of...a

committee of management of the [organisation and] officers of the [organisation]”. The

majority stated that the relevant regulation:

“does not in terms state that the rules shall provide that every office shall in all

circumstances be filled by election. Accordingly a rule providing for an appointment in

special circumstances does not inevitably contravene the literal requirements of reg.

115(1)(d). Where there is such a rule the question is whether notwithstanding its

presence it can be said of the organization that its affairs are regulated by rules which,

looked at in their entirety, provide for the election of the specified bodies and

officers...

...

Where a rule contains a provision for appointment in lieu of election its validity will

depend upon the nature of the appointment authorized, the circumstances in which the

appointment is permissible, the nature of the office, the constitutional structure of the

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organization and all the rules relating to the office concerned.”

[17]      Important considerations in that matter included the contextual circumstance that the

rule was made as a consequence of a restructure of the relevant organisation, the “weighty

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circumstance” that the officers to be appointed to the new offices had already been elected to

office whose terms had yet to expire, the period for which the appointments were made did

not reflect an arbitrary decision but reflected the duration of the outstanding terms of office

and the exigencies of the situation.

[2016] FWCD 4835

[18]      In Construction, Forestry, Mining and Energy Union [2013] FWCD 4924, I applied

Bicknell when considering similar alterations to those in the present matter with regard to the

filling of newly established offices within a merged branch. As in that previous matter, I note

that the alterations currently before me provide that the newly established offices shall be

filled by persons who have already been elected to office, that the terms of those offices is yet

to expire and that the duration of the relevant terms of office reflects the unexpired portion of

those offices and the next relevant scheduled elections. Further, the newly established offices

correspond with the previous offices held within the TED Branch. The intention behind the

alterations in this regard is clearly to ensure continuity in terms of the management of the

merged TED Branch whilst providing for a level of representation specific to members

currently attached to the TCD Branch.

[19]      Given this, and that the National Rules and the various Divisional Rules do provide for

the election of officers generally, I am satisfied in light of the principles set out in authorities

such as Bicknell that the alterations, if certified, will not render the National Rules contrary to

the Act.

[20]      Finally, 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 an office only where the person has

been found guilty of certain specified offences or has ceased to be eligible to hold the office.

As noted above, the alterations in the present matter involve the abolition of all offices of the

TCD and TED Branches. In several judgments of members of the Federal Court it has been

held that predecessors to section 141(1)(c) of the Act apply to the abolition of offices made

pursuant to alterations to the rules of an organisation to the extent that the abolition occurs

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before the expiry of the terms of those offices. However, the weight of authority suggests that

an abolition of an office in such circumstances does not attract section 141(1)(c) of the Act

provided it is effected in accordance with the rules of the relevant organisation and is bona

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fide. Based on the declaration of Mr Allen Hicks, National Secretary, lodged with the notice

of particulars and dated 17 June 2016, I am satisfied that the alterations have been made in

accordance with the rules of the CEPU and there is no evidence before me to indicate that the

alterations represent anything other than a bona fide exercise of the powers of the National

Council.

[21]      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.
[2016] FWCD 4835

DELEGATE OF THE GENERAL MANAGER

Endnotes:

1

Imlach v Daley (1985) 7 FCR 457 at 462 per Evatt and Northrop JJ.

2

Benson v Construction, Forestry, Mining and Energy Union (1995) 60 IR 394 at 406.

3

Ibid at 405-406; Roughan v The Australasian Meat Industry Employees Union (1992) 43 IR 193 at 197.

4

Bramich v Transport Workers’ Union of Australia (2000) 97 FCR 204 at 214.

5

See rules 11.7.5.2, 11.7.6 and 15.6.3 of the rules of the Electrical Divisional Rules.

6

Bicknell v Amalgamated Engineering Union (1969) 15 FLR 215 at 220-223 per Spicer CJ & Smithers J

7

Ibid at 225.

8

For example, Saint v Australian Postal and Telecommunications Union (1977) 30 FLR 385 at 397 per St John J; Copeland v

Ludwig (1994) 57 IR 436 at 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 at 143; Roughan v Coulson (1982) 3 IR 393 at 396; Benson v Construction, Forestry, Mining

and Energy Union (1995) 60 IR 394 at 401-402.

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