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

[2016] FWCD 631

[2016] FWCD 631

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

(R2015/239)

MR ENRIGHT	MELBOURNE, 17 MAY 2016
Alteration of other rules of organisation.

[1]        On 2 November 2015, the Communications, Electrical, Electronic, Energy,

Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) lodged with

the Fair Work Commission (the 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 an alteration to rule 21.4 of the National Rules. Rule 21 of the

National Rules sets out the procedures for making alterations to the rules of the CEPU and

currently provides as follows:

21 - NEW RULES & ALTERATIONS TO RULES

21.1 Except as provided in this rule, the National Council shall have the exclusive

power to make, amend or rescind the rules of the Union.

21.2 Divisional rules (set out in sections B, C and D) shall not be made, amended or

rescinded by the National Council without the prior approval of the appropriate

Divisional Council.

21.3 Rule 28.2 "Dissolution of a Division" may not be amended or rescinded

without an affirmative ballot of members of the appropriate Division.

21.4 Any amendment or rescission of rules 6.1.4 relating to the "Establishment of

Divisions", 6.2 "Autonomy of Divisions", 7.17 "Carrying of National Council

Resolutions" and this rule (rule 21) shall be of no effect unless ratified by each of the

Divisional Councils.

[3]        The essential effect of the alteration is to dispense with the need for ratification by

each of the Divisional Councils with regard to an alteration to, or rescission of, rules 6.1.4,

6.2, 7.17 and 21 made by the National Council. If certified, rule 21.4 will provide as follows:

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21.4 Any amendment or rescission of rules 6.1.4 relating to membership of the

divisions, 6.2 "Autonomy of Divisions", 7.17 "Carrying of National Council

Resolutions" and this rule (rule 21) shall be of no effect unless:

21.4.1 more than 60% of the votes cast, are cast in favour of the resolution; and

more than 50% of the votes cast by National Councillors from each Division

are also cast in favour of the resolution; or

21.4.2 more than 90% of the votes cast, are cast in favour of the resolution.

[4]        Prior to the lodgement of the notice of particulars, Ms Valerie Butler, a member of the

Committee of Management of the Victorian Postal and Telecommunications Divisional

Branch and a member of the National Council, wrote to the Commission on 12 October 2015

advising that she anticipated that a notice of particulars would be lodged setting out an

alteration to rule 21.4 of the National Rules and requested an opportunity to be heard before

any decision to certify the alteration was made.

[5]        In accordance with her request, the Commission afforded Ms Butler an opportunity to

lodge written submissions in this matter. Those submissions were filed on 19 November

2015. Mr Allen Hicks, National Secretary of the CEPU, was also provided with an

opportunity to lodge any submissions in reply and he subsequently filed written submissions

on 7 December 2015.

[6]        On 21 January 2016, the Commission wrote to Mr Hicks seeking clarification

regarding the manner in which the alteration was ratified by the Communications Division in

accordance with rule 21.4 and confirmation that a notice had been published on the website of

the CEPU indicating that the notice of particulars had been lodged with the Commission in

accordance with regulation 126(1)(b) of the Fair Work (Registered Organisations)

Regulations 2009.

[7]        On 8 February 2016, the CEPU filed a further declaration made by Mr Hicks on 8

February 2016 in which he stated that the alteration was ratified by the Divisional Executive

of the Communications Division during a meeting held by teleconference on 14 October

2015.

[8]        Following further queries by the Commission regarding the appropriate body to ratify

alterations made by the National Council pursuant to rule 21.4 of the National Rules, the

CEPU filed an additional declaration made by Mr Hicks on 18 April 2016. In that declaration,

Mr Hicks stated that the Divisional Conference of the Communications Division further

ratified the alterations in an out of session decision which concluded on 18 March 2016 and

which was conducted in accordance with the rules of the Communications Division of the

CEPU – Section D (the Communications Divisional Rules).

Statutory Framework

[9]        Section 159(1) of the Act provides as follows:

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“(1) An alteration of the rules (other than the eligibility rules) of an organisation does

not take effect unless particulars of the alterations 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; and

(c) has been made under the rules of the organisation.”

[10]      Regarding the extent to which the alteration complies with and is not contrary to the

Act, the submissions of both Ms Butler and Mr Hicks address subsection 142(1)(c) of the Act

which provides as follows:

“(1) The rules of an organisation:

…

(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…”

Submissions

[11]      As noted above, Ms Butler filed written submissions on 19 November 2015. In those

submissions, Ms Butler argues that the alteration to rule 21.4 is harsh and unjust for the

purposes of subsection 142(1)(c) of the Act. In this regard, she points out that the alteration

removes a provision that affords members of the Divisions and Industry Sections a right to

participate in decisions which may have a significant effect within such Divisions or Industry

Sections. For example, she argues that the alteration, if certified, will vest power in the

National Council to determine to dissolve or subsume a Division or Industry Section without

any reference to, or vote by, the members of that Division or Industry Section.

[12]      Ms Butler further submits that the alteration is inconsistent with the intent of the rules

of the CEPU at the time that the organisation was formed through the process of

amalgamation and that the certification of the alteration would set a bad precedent in terms of

the rules of other organisations which were formed through amalgamation and contain

protective rules that guard against a dissolution or takeover of a section of the membership

without any reference to the relevant members.

[13]      Finally, Ms Butler points to a plebiscite that was conducted across the membership of

the Communications Division in 2015. Ms Butler submits that the question set out in the

plebiscite to which members were required to respond to by voting for or against set out a

similar alteration to the National Rules as those involved in the present matter. As Ms Butler

notes, the result of the plebiscite was that a majority of the membership voted against and, on
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this basis, she asserts that the certification of the alteration to rule 21.4 would defeat the will

of the membership of the Communications Division.

[14]      In his submissions lodged on 7 December 2015, Mr Hicks addresses each of the points

raised by Ms Butler’s submissions.

[15]      After referring to various authorities regarding the construction to be given to section

142(1)(c) of the Act, Mr Hicks submits that in considering the alteration in the present matter

the Commission must give the terms “oppressive, unreasonable or unjust” their ordinary

meaning, consider the impact of the alteration on the membership of the CEPU as opposed to

the internal structures of the organisation and must not seek to impose its own ideas as to

what is desirable in determining whether the alteration is consistent with section 142(1)(c) of

the Act. He concludes that, in order to make a finding that the alteration is inconsistent with s.

142(1)(c) of the Act, it is not sufficient to find that it may have an effect which is oppressive,

unreasonable or unjust in a hypothetical sense.

[16]      Regarding the impact of the alteration on the operation of the Divisions, Mr Hicks

submits that the effect of the alteration is to streamline the process for altering rules 6.1.4, 6.2,

7.17 and 21 of the National Rules and asserts that it is consistent with the existing policy of

the CEPU regarding the centrality of the autonomy of the Divisions by requiring alterations to

those rules to be approved by all Divisions through their representatives on National Council

except in circumstances where an overwhelmingly majority of National Council vote in

favour.

[17]      Mr Hicks further submits that Ms Butler’s submission that the alteration is inconsistent

with the intent of the rules at the time the CEPU was formed is misconceived and questions

the relevance of the voting intention of certain members two decades ago upon my

consideration of the alteration in the present matter.

[18]      Mr Hicks also disputes Ms Butler’s characterisation of the alteration as one which may

permit the dissolution of a Division or Industry Section without reference to the membership

of such a Division or Industry Group and, in this regard, points to the effect of existing rule

28.2 of the National Rules. Similarly Mr Hicks asserts that, contrary to Ms Butler’s

submissions, the alteration does not entail the restructure of the governance structures of the

CEPU and, in comparison with the restructuring that occurred as a result of various

amalgamations throughout the 1980’s and 1990’s, involves a “miniscule degree of change”.

[19]      Regarding the issue of the plebiscite conducted in 2015, Mr Hicks argues that it has no

relevance to my decision in the present matter as the subject matter of the plebiscite involved

rule alterations separate and distinct from the alteration to rule 21.4.

[20]       Finally, Mr Hicks submits that the alteration does not entail a material change in the

locus of decision making power within the CEPU but merely streamlines the process for

amendments to rules 6.1.4, 6.2, 7.17 and 21 of the National Rules. Alternatively, Mr Hicks

submits that even if I were to find that the alteration did so vest power in the National Council

to make decisions which may have a significant impact across the membership of a Division

or Industry Section without reference to the relevant members, this does not lead to a

circumstance which is inherently oppressive, unreasonable or unjust. In this regard, Mr Hicks

points to the proportional nature of the composition of the National Council across the
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Divisions of the CEPU and argues that the alteration will not result in disenfranchisement of

the members attached to the Communications Division.

Consideration

[21]      On the information contained in the notice and the further declaration of Mr Hicks of

18 April 2016, I am satisfied the alterations have been made under the rules of the

organisation. More specifically, I am satisfied that the alterations were validly made by the

National Council in accordance with the National Rules and subsequently ratified by each

Divisional Council/Conference in accordance with the National Rules and the relevant

Divisional Rules.

[22]      I am also satisfied that the alteration is not contrary to the Fair Work Act 2009,

modern awards and enterprise agreements and is not otherwise contrary to law.

[23]      I will now turn my mind to the submissions of both Ms Butler and Ms Hicks regarding

the consistency of the alteration with s. 142(1)(c) of the Act.

[24]      As set out in the various authorities identified in the submissions of Mr Hicks, the

proper approach to take when considering whether the rules of an organisation impose a

condition, obligation or restriction that is oppressive, unreasonable or unjust is well

established.

[25]      In the context of the exercise of judicial powers conferred by s. 140 of the Conciliation

and Arbitration Act 1904 (the predecessor to s. 142 of the Act), the Full Court of the Federal

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Court in Doyle v AWU stated that the “starting point” of any consideration of whether a rule

contravenes the Act “is the right of an organisation to choose its own rules and internal

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structures, within the framework provided by the Act.” Similarly, in Wiseman v Professional

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Radio & Electronics Institute of Australasia Evatt and Northrop JJ observed that:

“The court is not at liberty to substitute its modes of thought for those of an

organization. Subject to the provisions of the Act, an organization is free to determine

its own internal structures; it is free to determine its own policies; it is free to pursue

objects which it considers to be desirable; and it is free to decide what it considers to

be in the best interests of its members or potential members. In exercising those

powers an organization can affect adversely a person who, although eligible to be a

member, in fact is not a member. The court, in the exercise of the judicial powers

conferred by s. 140 of the Act, is not permitted to substitute what it considers to be

desirable internal structures of an organization; what it considers to be desirable

policies; what it considers to be desirable objects; and what it considers to be in the

best interests of the members of the organization; by determining that what is being

pursued by the organization imposes on members of the organization conditions,

obligations or restrictions which, having regard to the objects of the Act and the

purposes of the registration of organizations under the Act, are oppressive,

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unreasonable or unjust (references omitted)”.

[26] Thus, in considering whether the rules of an organisation impose conditions,

obligations or restrictions that are oppressive, unreasonable or unjust, the Court is not

empowered to exercise a general authority of supervision or permitted to require that the rules

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comply with what the Court may think is merely “preferable, desirable or ideal”.
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[27]      In determining whether the rules of an organisation are oppressive, unreasonable or

unjust, their effect must be examined in the context of the particular circumstances pertaining

to that organisation and by reference to the objects of the Act and the purposes of the

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registration of organisations under the Act.

[28]      Taking into account the principles outlined above, I now turn to terms of the alteration

itself.
[29]	As set out above, the alteration entails an amendment to the rule altering procedures of

the CEPU. More specifically, it changes the manner in which alterations to rules 6.1.4, 6.2,

7.17 and 21 may be made and have effect. Sub-rule 21.4 currently provides that any

amendment to, or rescission of, those rules made by the National Council shall have no effect

unless ratified by each of the Divisional Councils. The alteration provides that any such

alteration or rescission made by the National Council shall have no effect unless: (a) more

than 60% of the votes cast are cast in favour of the relevant resolution of National Council

and more than 50% of the votes cast by National Councillors from each Division are also cast

in favour of the resolution or (b) more than 90% of the votes cast by National Councillors are

cast in favour of the resolution.

[30]      In order to fully appreciate the impact of the alteration, it is important to consider it

within the context of the rules of the CEPU as a whole. The rules of the CEPU consist of the

National Rules, the Communications Divisional Rules, the rules of the Electrical, Energy and

Services Division – Section B (the Electrical Divisional Rules), and the rules of the Plumbing

Division – Section C (the Plumbing Divisional Rules). The New South Wales Divisional

Branch of the Electrical, Energy and Services Division of the CEPU is also governed by a set

of rules applicable to that branch - Section B2. As sub-rules 4.31 and 6.3 of the National

Rules provide, the rules of the CEPU, including the National and Divisional Rules, are to be

construed in totality with each set comprising part of a complete whole.

[31]      This scheme reflects its structure as an organisation which contains three Divisions,

namely, the Electrical, Energy and Services Division (the Electrical Division), the Plumbing

Division and the Communications Division, to which the members and officers of the CEPU

are attached.

[32]      This divisional structure has arisen as a result of previous amalgamations of once

separate organisations with quite disparate membership in terms of their relevant trade,

occupation or industry coverage. In his submissions, Mr Hicks charts the history of these

various amalgamations and the former policy of the Australian Council of Trade Unions

which promoted the rationalisation of trade unions on an industrial basis. For the purposes of

considering the current matter, it is sufficient to note that the Electrical Trades Union of

Australia amalgamated with The Plumbers and Gasfitters Employees’ Union of Australia on

17 March 1993 to form the Electrical, Electronic, Plumbing and Allied Workers Union of

Australia (EEPAU). Subsequently, the EEPAU amalgamated with the Communications

Workers Union of Australia on 1 August 1994 to form the CEPU. In recognition of this

historical development, sub-rule 6.1.2 of the National Rules provides that the Electrical

Division, the Plumbing Division and the Communications Division shall also be known as the

Electrical Trades Union Division, the Plumbers and Gasfitters Employees Union Division and

the Communication Workers Union Division respectively.

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[33]      Rule 6.1 of the National Rules establishes the Divisions of the CEPU, provides that

each member shall be attached to a Division or Industry Group and sets out which sections of

the membership are to be allocated to each Division by reference to the conditions of

eligibility of the CEPU set out in rule 2 of the National Rules.

[34]      A Division within the CEPU is afforded considerable autonomy to determine matters

which do not directly affect the members of another Division pursuant to rule 6.2 of the

National Rules. Such matters include representing the industrial interests of its members,

formulating policies pertaining to the Division, the election of officers within a Division and

the responsibility and accountability for managing the funds of a Division. Regarding the

Communications Division, sub-rule 6.2.1.6 specifically provides that matters pertaining solely

to the membership of the Communications Division shall be dealt with by that Division unless

it determines otherwise.

[35]      As set out in each set of Divisional Rules, each Division is governed by a Divisional

Council (or Divisional Conference in the case of the Communications Division) and a

Divisional Executive which can generally exercise the powers and functions of the Divisional

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Councils in between meetings of those bodies.

[36]      The Divisional Rules also set out, or provide for the creation of, Divisional Branches

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which are established on a geographic basis.

[37]      In the case of the Communications Division, the Divisional Branches are organised on

a state basis. However, in the case of both Victoria and New South Wales, there are two

distinct Divisional Branches, a Postal and Telecommunications Branch and a

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Telecommunications and Services Branch. This reflects the importance of the Industry

Sections within the Communications Division. More specifically, the members of the

Communications Division are allocated across the following six Industry Sections as defined

in the Communications Division Rules: (1) Postal Services, (2) Telecommunications and

Information Technology, (3) Postal, (4) Lines and General, (5) Technical Industry and (6)

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Operator Industry Sections. The Divisional Rules provide that several officers of the

Divisional Branches shall be elected by and from members allocated to the relevant Industry

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Section. In addition, the Industry Sections within a Divisional Branch are entitled to

representation at the Communications Divisional Conference according to the level of

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membership within the relevant Industry Section.

[38]      The National Council is the principal organisation-wide governing body of the CEPU

with the “exclusive power to deal with matters affecting more than one division and the

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general control and conduct of the business and affairs” of the CEPU. This power includes

determining and implementing policy on matters affecting members attached to more than

one Division, initiating or defending proceedings where a matter affects the members attached

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to more than one Division and resolving disputes between Divisions. Its decisions are final

and binding subject to the control exercised by members by general plebiscite and other

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provisions set out in the National Rules. However, in exercising its powers, the National

Council must have regard “to the requirements of divisional autonomy provided for” in the

National Rules and its powers are circumscribed in relation to matters which affect members

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attached to one Division only.

[39] Given the consolidated nature of the rules of the CEPU, the National Council is also

vested with the exclusive power to make amendments to the National Rules and the rules of
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the Divisions. However, that power is limited with respect to alterations to the rules of the

Divisions which cannot be altered without the prior approval of the relevant Divisional

Council or Conference. Further, any alteration to, or rescission of, rule 28.2 of the National

Rules (which provides that no Division or Industry Group can be dissolved or amalgamated

without an affirmative ballot of the members of the relevant Division or Industry Group) must

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be ratified by an affirmative ballot of members of the relevant Division. As noted above,

sub-rule 21.4 currently provides that any alteration to, or rescission of, rules 6.1.4, 6.2, 7.17

and rule 21 must be ratified by each Divisional Council or Conference.

[40]      The principal officers of the CEPU are the National Executive Officers which consist

of the National Secretary, National President, Assistant National Secretary and the National

Vice President. The roles of the four National Executive Officers are filled by the Divisional

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Secretaries of each Division and the Divisional President of the Communications Division.

The National Council is composed of the National Executive Officers, delegates elected from

each branch of the Electrical and Plumbing Divisions, the Assistant Branch Secretaries from

several branches of the Plumbing Division, affirmative action delegates in certain

circumstances and the remaining members of the Communications Divisional Executive other

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than the Divisional Vice Presidents. As noted in Mr Hicks’s submissions, this leads to the

Communications Division being afforded a greater number of National Councillors compared

to the other Divisions and a disproportionate level of representation in terms of the level of

membership of the CEPU across the Divisions.

[41]      The National Executive may exercise the powers of National Council in between

meetings of the National Council save for the power to make alterations to the rules of the

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CEPU and the power to take disciplinary action against members and officers. These powers

are also expressed to be subject to the overriding control of the National Council. The

National Executive is composed of the four National Executive Officers and representatives

from the Electrical and Plumbing Divisions and the Postal Services Industry Group and the

Telecommunications and Information Technology Group elected from the National

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Councillors of each relevant Division or Industry Group. The Industry Groups consist of the

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combined membership of particular Industry Sections.

[42]      The allocation of votes on National Council is devised to ensure that the members

attached to each Division or Divisional Branch are afforded representation proportional to

their contribution to the total membership of the CEPU. Rule 7.14.1 of the National Rules

provides that each Divisional Branch shall have the right to exercise one vote for every 100

members at National Council meetings. Thus, the share of votes allocated to the members of

National Council from the Electrical Division is much greater than the shares allocated to

National Councillors from the other two Divisions given the number of members attached to

that Division and their contribution to the total membership of the CEPU.

[43]      Thus the rules of the CEPU reflect the kind of balance between the objects of

encouraging democratic control and ensuring the viability of the organisation as an

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amalgamated body discussed in previous authorities such as McLeish v Kane . The rules

exhibit various checks and balances that limit the power of the National Council and

Executive to affect the interests and autonomy of the membership of the constituent

Divisions. Such provisions include vesting the Divisions with a high degree of autonomy with

respect to matters which do not directly affect the members attached to other Divisions and

restricting the otherwise exclusive power of the National Council to alter or rescind particular

National Rules or the Divisional Rules without further ratification from the relevant
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Divisional Council or the membership attached to a particular Division or Industry Section.

The composition of both the National Council and the National Executive as prescribed by the

National Rules also reflects the importance of ensuring that each Division receives a certain

level of representation which, as Mr Hicks notes, leads to a level of disproportionate

representation from the Communications Division with regard to the number of officers from

that Division relative to the Plumbing and Electrical Divisions.

[44]      Having provided a broad overview of the rules of the CEPU, it is apparent that the

alteration in the present matter is a significant one that materially alters the balance within the

CEPU towards the National Council with regard to its power to make alterations to, or

rescind, certain crucial provisions of the National Rules. Those provisions include rules 6.1.4,

6.2, 7.17 and 21 of the National Rules.

[45]      I have briefly discussed the effect of rules 6.1.4 and 6.2 of the National Rules above.

Obviously, any alteration to, or rescission of, provisions which set out which sections of the

membership of the CEPU are attached to each Division and provide for the autonomy of the

Divisions with regard to matters which affect the membership of a particular Division may

have a fundamental impact upon its operation.

[46]      Rule 7.17 of the National Rules provides that a resolution put to National Council is

carried if 60% of the votes cast are cast in favour of the resolution. This rule is expressed to

be subject to rule 21. Any variation to the threshold required for carrying resolutions of

National Council may also have a significant impact upon the balance of power between the

Divisions and between a Division and the National Council particularly given the

substantially greater number of votes allocated to the Electrical Division on National Council.

[47]      Finally, any alteration to the rule altering procedures themselves as set out in rule 21

also has the potential to impact upon the membership of the organisation and its Divisions in

an important way.

[48]      As noted above, the alteration to sub-rule 21.4 will dispense with the need for each

Divisional Council to ratify any alterations to, or rescission of, the above four rules made by

National Council. Rather, for any such alteration or rescission to have effect, the relevant

resolution of National Council must be carried by at least 60% of the votes cast and more than

50% of such votes cast by the National Councillors from each Division must also be cast in

favour of the resolution. Alternatively, any alteration of or rescission to those rules will be

effective if more than 90% of the votes cast at National Council are cast in favour of the

relevant resolution.

[49]      I accept Ms Butler’s submissions to the extent that the alteration, if certified, will

remove provisions that have traditionally afforded members of the Divisions a right to

participate, through the process of ratification by each of the Divisional Councils, in decisions

which may have a significant impact on the membership attached to a single Division. This

runs somewhat counter to the existing rules of the CEPU which, as noted above, seek to

protect the interests and autonomy of the membership attached to the Divisions and restrict

the capacity of the National Council to unilaterally make decisions with regard to such

matters. This will also decrease the influence of the members attached to the Industry Sections

within the Communications Division who enjoy a greater level of representation on the

Communications Divisional Conference compared to the National Council. Further, the

potential control currently enjoyed by the membership of the Communications Division
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pursuant to rule 35 of the Communications Divisional Rules with regard to alterations to rules

6.1.4, 6.2, 7.17 and 21 of the National Rules will be effectively abolished if the need for

ratification by the Divisional Conference is dispensed with. Given this, I would not

characterise the alteration as relatively “miniscule” as Mr Hicks describes it in his

submissions.

[50]       Although I accept Mr Hicks’ submission that the alteration will not empower the

National Council to unilaterally determine to dissolve an entire Division or Industry Group

given the effect of rules 7.3.1 and 28.2, the unfettered capacity to make alterations to, or

rescind, rule 6.1.4 will obviously vest the National Council with significant power to affect

the allocation of the membership of the CEPU across and between Divisions.

[51]      However, a finding that the alteration will significantly enhance the powers of the

National Council to unilaterally make alterations to, or rescind, provisions of the National

Rules which have a significant impact upon the autonomy and interests of a particular

Division is a different matter to concluding that the alteration is oppressive, unreasonable or

unjust for the purposes of section 142(1)(c) of the Act.

[52]      As noted above, the National Council is the principal organisation-wide body of the

CEPU and its composition is designed to ensure adequate representation by each of the

Divisions. The officers on the National Council are democratically elected by the membership

of the organisation in accordance with the rules of each of the Divisions. Although the

officers on the National Council who are attached to the Electrical Division are allocated what

I think could be described as a substantially greater number of votes, this seems to reflect the

circumstance that the Electrical Division contains greater than 50% of the total number of

members of the CEPU.

[53]      I have also had regard to the control the membership of the CEPU may exercise over

the National Council pursuant to rules 7.3.2 and 16 of the National Rules. More specifically,

those provisions provide that any decision by National Council shall be final and binding

subject to any ballot of members and that such a ballot must be called where a petition signed

by not less than 5% of the financial membership of the CEPU, or all the Divisional Branches

of a particular Division or at least six Divisional Branches, request one.

[54]      I note that sub-rules 21.2 and 21.3 of the National Rules will continue to provide that

any alteration to the Divisional Rules will still require the prior approval of the relevant

Divisional Council and that any alteration to rule 28.2 cannot be made without an affirmative

ballot of the members of the relevant Division.

[55]      The alteration itself contains an important safeguard by providing that any resolution

to alter rules 6.1.4, 6.2. 7.17 and 21 must be carried by at least 60% of the votes cast and more

than 50% of such votes cast by the National Councillors from each Division must also be cast

in favour of the resolution or by more than 90% of the votes cast. In my view, this mitigates

to some extent concerns that National Councillors attached to a single Division may, through

their allocation of votes on National Council, make alterations to or rescind those rules

without any level of support from the other Divisions. Any such alteration will need to be

carried by more than 50% of the votes cast from the National Councillors from each Division

or by an exceptionally large majority of the total votes cast by National Councillors. In other

words, such an amendment will need to attract significant and widespread support amongst

the members of the democratically elected and principal governing body of the CEPU.

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[56]      For the reasons set out above, and having regard to the objects set out in section 5 of

the Act, I cannot find that the alteration, if certified, will impose a condition, obligation or

restriction that is oppressive, unreasonable or unjust for the purposes of section 142(1)(c) of

the Act. Indeed, the alteration, considered in the context of the rules as a whole, is consistent

with the objects of ensuring the accountability of the organisation to its members, the efficient

management and effective operation of the organisation and the democratic functioning and

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control of the organisation. The objects of the Fair Work Act 2009 are a neutral

consideration in the present matter.

[57]      As Mr Hicks submits, the alteration itself does not entail any restructure of the

governing bodies or membership of the Divisions of the CEPU. That the alteration is designed

to facilitate such a restructure may be reasonably evident given the history of previous

alterations made by the CEPU mentioned below. However, it is not appropriate to consider

whether the alteration imposes a condition, obligation or restriction that is oppressive,

unreasonable or unjust by speculating about how the National Council may exercise its

powers pursuant to the provisions of a certified amendment to rule 21.4.

[58]      Ms Butler further submitted that the alteration is inconsistent with the intent of the

rules of the CEPU at the time that the organisation was formed through amalgamation. I

accept that it is more probable than not that the alteration will, if certified, provide the

National Council with significantly greater powers to make alterations to provisions such as

those set out in rules 6.1.4, 6.2, 7.17 and 21 without reference to the Divisional Councils than

those contemplated by the membership of the EEPAU and the Communications Workers

Union of Australia at the time those organisations amalgamated. However, that amalgamation

occurred more than 21 years ago and, as noted in Mr Hicks submissions, the membership and

structure of the CEPU have changed significantly in the intervening period. In her

submissions, Ms Butler does not indicate how a consideration of this matter demonstrates that

the alteration, if certified, would impose a condition, obligation or restriction that is

oppressive, unreasonable or unjust other than it would vest the National Council with greater

powers than those contemplated more than two decades ago. In my view, this consideration

alone is insufficient to find that the alteration imposes a condition, obligation or restriction

that is oppressive, unreasonable or unjust for the purposes of s. 142(1)(c) of the Act.

[59]      Finally, Ms Butler submitted that the certification of the alteration in the present

matter would defeat the will of the membership of the Communications Division as expressed

in a plebiscite that was conducted in 2015.

[60]      That plebiscite concerned certain alterations to the National Rules made by the

National Council in April 2014. The most significant aspect of the alterations included

amendments to rule 6.1.4 which essentially provided a mechanism for the membership of the

Divisional Branch of a particular Division to transfer to another Division if the Divisional

Branch so determined. In order for such a transfer to occur, the consent of the National

Council and the Divisional Council and the Divisional Branches of the Division to which the

membership of the relevant Divisional Branch would transfer to would be required. Other

amendments also included an alteration to rule 6.2 and a proposed new rule 35 which set out

the mechanics of how such a transfer would occur.

[61] In accordance with rule 21.4 of the National Rules, the alterations to rules 6.1.4 and

6.2 required ratification by each of the Divisional Councils to have effect. The Divisional
[2016] FWCD 631

Councils of both the Electrical and Plumbing Divisions subsequently ratified the alterations.

However, in a postal vote of the members of the Communications Divisional Conference

which concluded on 1 September 2014, the resolution to ratify the alterations failed to achieve

the requisite number of votes cast in favour for it to be carried. After a request was made by

several Divisional Branches pursuant to rule 35 of the Communications Divisional Rules and

subsequent court proceedings which resulted in orders being made directing the Divisional

26

Executive to conduct it, a plebiscite was subsequently held across the entire membership of

the Communications Division in 2015. The relevant question that the membership was

required to respond to was whether or not the alterations to rules 6.1.4 and 6.2 made by the

National Council should be ratified by the Communications Divisional Conference. As both

Ms Butler and Mr Hicks note, the plebiscite returned a negative vote.

[62]      As Mr Hicks notes in his submissions, Ms Butler does not set out how a consideration

of this matter is relevant for the purposes of my consideration of whether the alteration, if

certified, would have an effect that is oppressive, unreasonable or unjust. The alterations

involved in the plebiscite are quite distinct from and separate to the alteration in the present

matter. As noted above, the alteration before me does not involve any restructure of the CEPU

or the potential transfer of members from one Division to another. It solely involves a change

to the manner in which amendments to certain provisions of the National Rules may be made.

That the alteration will significantly enhance the powers of the National Council to

unilaterally make alterations to, or rescind, those provisions and that any such alterations may

have a significant impact upon the autonomy and interests of a particular Division does not

alter the fact that the plebiscite concerned alterations of a quite different nature. As noted

above, it is also not appropriate to engage in speculation as to how the National Council may

exercise such powers when determining whether the alteration imposes a condition, obligation

or restriction that is oppressive, unreasonable or unjust.

[63]      In my opinion, for the reasons set out above, the alteration complies with and is not

contrary to the Fair Work (Registered Organisations) Act 2009, the Fair Work Act 2009,

modern awards and enterprise agreements, and is 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

[2016] FWCD 631

Endnotes:

1

Doyle v Australian Workers’ Union (1986) 12 FCR 197; 68 ALR 591; 15 IR 262.

2

Doyle v Australian Workers’ Union (1986) 12 FCR 197 at 205.

3

Wiseman v Professional Radio & Electronics Institute of Australasia (1978) 20 ALR 545; 35 FLR 24.

4

Wiseman v Professional Radio & Electronics Institute of Australasia (1978) 20 ALR 545 at 561. See also Municipal

Officers’ Association of Australia v Lancaster (1981) 54 FLR 129 at 150-151 per Evatt & Northrop JJ and 164-165 per

Deane J.

5

Municipal Officers’ Association of Australia v Lancaster (1981) 54 FLR 129 at 165 per Deane J.

6

Doyle v Australian Workers’ Union (1986) 12 FCR 197 at 206.

7

See rules 7 & 12 of the Communications Divisional Rules, rules 7 and 7A of the Electrical Divisional Rules and rules 19,

24 & 33 of the Plumbing Divisional Rules.

8

See rule 44 of the Communications Divisional Rules, rule 11.1 of the Electrical Divisional Rules and rule 48.1 of the

Plumbing Divisional Rules.

9

Rule 44 of the Communications Divisional Rules.

10

Rules 4(n), 46, 46A & 46B of the Communications Divisional Rules.

11

Rules 75, 76 and 76A of the Communications Divisional Rules.

12

Rule 5(d) of the Communications Divisional Rules.

13

Rule 7.1.1 of the National Rules.

14

Rule 7.1 of the National Rules.

15

Rule 7.3 of the National Rules.

16

Rule 7.1 of the National Rules.

17

Rules 7.1.2.2 and 21 of the National Rules.

18

Rule 21.3 of the National Rules.

19

Rules 8 and 12.2 of the National Rules.

20

Rule 7.10 of the National Rules.

21

Rule 7A.2 of the National Rules.

22

Rule 7A.1 of the National Rules.

23

Rule 4.11 of the National Rules and rule 4(m) of the Communications Divisional Rules.

24

McLeish v Kane (1978) 36 FLR 80.

25

See Fair Work (Registered Organisations) Act 2009 s.5(3).

26

Baxter v Dwyer [2015] FCA 74.

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