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

[2016] FWCD 1121

[2016] FWCD 1121

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

(R2015/267)

MR ENRIGHT	MELBOURNE, 15 MARCH 2016
Alteration of other rules of organisation.

[1]        On 3 December 2015, 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 Electrical

Divisional Rules).

[2]        The particulars set out alterations to 11 and 15 of the Electrical Divisional Rules. The

alterations have three primary effects, namely:

 The establishment of a Communications Section within a Divisional Branch of the

Electrical, Energy and Services Division (the Electrical Division) in circumstances

where members of the CEPU currently attached to the Communications Division

become attached to that Divisional Branch;

 The establishment of a “Communications Advisory Committee” of the State

Council of the relevant Divisional Branch of the Electrical Division in the

circumstances set out above; and

 The establishment of a Divisional Branch Organiser to specifically represent the

interests of members within a Communications Section in circumstances where its

financial membership reaches 300 or more who is to be elected by and from such

members.

[3]        The alterations also include further and relatively minor amendments to sub-rules

15.6.2 and 15.19.18. I note that one aspect of the alterations to rule 15.19.18 set out in the

notice of particulars concerning the establishment of the office of “Affirmative Action

(Women) Councillor on State Council” appears to have already been certified in a decision

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issued on 8 March 2016.

[4]        On 10 December 2015, Mr Glen Boyd, a member of the CEPU attached to the

Tasmanian Communications Division Branch requested an opportunity to be heard in relation

to the certification of the alterations.
[2016] FWCD 1121

[5]        Having been afforded an opportunity to lodge submissions, Mr Boyd subsequently

filed written submissions with the Commission on 27 January 2016. On 5 January 2016, Mr

Allen Hicks, National Secretary of the CEPU, also filed written submissions with the

Commission.

Statutory Framework

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

“(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.”

[7]        In his submissions, Mr Boyd asserts that the alterations are “harsh, unreasonable and

unjust”. This appears to be a reference to the provisions of 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

[8]        As noted above, Mr Boyd filed written submissions on 27 January 2016. In those

submissions, Mr Boyd argues that the alterations are part of a continuing campaign by the

Electrical Division of the CEPU to “take over” both the membership and assets of the

Communications Division of the CEPU in Tasmania. According to Mr Boyd, this campaign,

if successful, would result in members currently attached to the Tasmanian Communications

Division Branch being deprived of effective representation at a national level within the

Communications Division. This is because the members of the Communications Divisional

Executive currently attached to the Industry Sections within that Divisional Branch would

be deprived of voting rights at meetings of the Communications Divisional Executive and

their entitlement to attend such meetings would be by invitation only. Mr Boyd submits that

this would weaken the representation and strength of the membership attached to the

Industry Sections within the Tasmanian Communications Division Branch and would,

therefore, be “harsh, unreasonable and unjust”.

[2016] FWCD 1121

[9]        In this regard, Mr Boyd also points to the result of a plebiscite that was conducted

across the membership of the Communications Division in 2015, the voting patterns of

National Councillors attached to the Communications Division in relation to a recent

unspecified rule alteration and the state of the rules of the CEPU with regard to

establishment of Industry Sections when the organisation was formed through the process of

amalgamation.

[10]      Finally, Mr Boyd makes reference to a request he and several other members

attached to the Tasmanian Communications Divisional Branch have made to the current

Branch Secretary of that Divisional Branch, Mr David Moore, for a plebiscite regarding the

issue of whether the branch should be maintained and supported by the national office of the

Communications Division with a dedicated recruitment plan. Mr Boyd asserts that this

process has been frustrated and stalled by Mr Moore. Attached to the submissions are

various pieces of correspondence sent by email between Mr Boyd and Mr Moore regarding

the request for a plebiscite.

[11]      In his submissions lodged on 5 February 2016, Mr Hicks addresses each of the points

raised in Mr Boyd’s submissions.

[12]      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. In this regard, 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.

[13]      The main thrust of Mr Hick’s submissions is that the alterations in the present matter

cannot be “oppressive, unreasonable or unjust” for the purposes of s. 142(1)(c) of the Act as

they solely involve amendments to the Electrical Divisional Rules, will not have any practical

effect until further alterations to the rules of the CEPU are made and, therefore, do not impact

upon the membership attached to the Communications Division.

[14]      Mr Hicks further argues that the plebiscite conducted in 2015 has no relevance to my

decision in the present matter and asserts that Mr Boyd’s assessment that the Electrical

Division is attempting a “takeover” of the membership attached to the Communications

Division is “pernicious and misleading”.

Consideration

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

made under the rules of the organisation.

[16] I am also satisfied that the alterations are not contrary to the Fair Work Act 2009,

modern awards and enterprise agreements and are not otherwise contrary to law.
[2016] FWCD 1121

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

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

[18]      Mr Boyd’s central submission is that the alterations are part of a campaign by the

Electrical Division to “take over” the membership of the CEPU currently attached to the

Tasmanian Communications Division Branch and are, therefore, “harsh, unreasonable and

unjust” as this will result in the relevant members being deprived of effective representation

and weaken the Industry Sections of the Communications Section. In this regard, Mr Boyd

argues that this is also inconsistent with the rules of the CEPU 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.

[19]      This submission must be rejected. The alterations in the present matter solely involve

amendments to the Electrical Divisional Rules. As noted above, the alterations entail the

establishment within a Divisional Branch of the Electrical Division of a Communications

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

represent members currently attached to the Communications Division in certain prescribed

circumstances. The alterations have clearly been drafted in contemplation of a potential

transfer of the membership from the Communications Division to the Electrical Division.

However, the alterations, if certified, will not affect the current structure of the CEPU with

regard to the membership attached to each Division including in the State of Tasmania. In

order for the membership currently attached to the Communications Division to be transferred

to the Electrical Division, further alterations to rules of the CEPU – Section A (the National

2

Rules) will need to be made and certified.

[20] Further, any potential change to the voting rights of the members of the

Communications Divisional Executive and of delegates to Communications Divisional

Conference or any change in the composition of those bodies would require alterations to the

rules of the Communications Division of the CEPU – Section D (the Communications

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Divisional Rules). Similarly, any alteration to the structure of the Industry Sections within

the Communications Division could also only be achieved by altering the Communications

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Divisional Rules. The certification of the alterations in the present matter will have no effect

on those provisions of the Communications Divisional Rules as they currently stand.

[21]      As Mr Hicks notes, the alterations in the present matter have been designed to

facilitate future organisational change. Given the nature of the alterations and the history of

previous alterations made to the rules of the CEPU, it is readily apparent that at least certain

segments of the leadership of the CEPU are contemplating a realignment of the current

structure of the organisation in terms of the allocation of the membership across the

Divisions. Indeed, in his submissions, Mr Hicks refers to negotiations between the Electrical

and Communications Divisions regarding a potential merger of the Tasmanian

Communications Division Branch and the Tasmanian Divisional Branch of the Electrical

Division.

[22]      However, it is not appropriate to consider whether the alterations in the present matter,

will, if certified, impose a condition, obligation or restriction that is oppressive, unreasonable

or unjust by engaging in speculation as to how any potential merger between the two branches

of the CEPU will be achieved. My task in this respect is to examine the terms of the
[2016] FWCD 1121

alterations with regard to whether, if certified, they will impose a condition, obligation or

restriction that is oppressive, unreasonable or unjust.

[23]      In my view, the alterations, if certified, will not impose any relevant condition,

obligation or restriction which is oppressive, unreasonable or unjust. The alterations simply

provide that if members currently attached to the Communications Division are reallocated to

a Divisional Branch of the Electrical Division particular mechanisms will be put in place to

ensure that they continue to receive a certain level of separate representation.

[24]      Mr Boyd also makes reference to the plebiscite that was conducted in 2015 across the

membership of the Communications Division and asserts that the Electrical Division is acting

contrary to the result of the plebiscite by attempting a “take over” of the membership of the

Communications Division in Tasmania. In my view, this submission is misconceived and Mr

Boyd does not elaborate upon how this matter affects my determination of whether the

alterations in the present matter impose a condition, obligation or restriction that is

oppressive, unreasonable or unjust.

[25]      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 sets out which sections of the membership are to be

allocated to each Division of the CEPU) that 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 (which provides for the autonomy of

each of the Divisions of the CEPU) and a proposed new rule 35 which set out the mechanics

of how such a transfer would occur.

[26]      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

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

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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

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

[27]      The alterations in the present matter are quite distinct from the alterations involved in

the plebiscite. Although they contemplate a potential reallocation of the membership attached

to the Communications Division to the Electrical Division and have been drafted to facilitate

such an outcome, they do not directly affect the current structure of the membership of the

CEPU or provide a mechanism for such a restructure to occur. As noted above, in order to

achieve such a transfer of the membership from one Division to another, further alterations to

the National Rules are required. By making the alterations in the present matter, the
[2016] FWCD 1121

Divisional Council of the Electrical Division and the National Council have not acted in a

manner inconsistent with the result of the plebiscite and this matter has no relevance to my

determination of whether they will, if certified, impose a condition, obligation or restriction

that is oppressive, unreasonable or unjust.

[28]      Similarly, the issue of the plebiscite Mr Boyd and several other members of the

Tasmanian Communications Divisional Branch have requested also has no relevance to my

consideration of whether the alterations currently before me are consistent with section

142(1)(c) of the Act. The matter of whether or not the Tasmanian Communications Division

Branch should continue to be maintained as a separate body is a broader issue concerning the

policy of the CEPU with regard to its future structure. The alterations in the present matter, if

certified, will not affect the current structure of the CEPU in terms of the membership of the

Divisions, the Divisional Branches and the Industry Sections of the Communications

Division. Further, the alterations do not entail the dissolution of the Tasmanian

Communications Division Branch or its merger with any other Divisional Branch. I have

observed above that the alterations have been made against a background of plans to merge

the membership of the Communications and Electrical Divisions and have been designed to

facilitate this. However, any such merger will require further alterations to the National Rules.

The matter of a plebiscite regarding the future status of the Tasmanian Communications

Division Branch and an alteration to the rules which contemplate, but do not bring about, a

restructure of the membership of the CEPU are two separate issues. There is nothing in Mr

Boyd’s submissions which persuade me that this is matter is pertinent to my consideration of

whether the alterations impose a condition, obligation or restriction that is oppressive,

unreasonable or unjust for the purposes of s. 142(1)(c) of the Act.

[29]      In my opinion, for the reasons set out above, 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

[2016] FWCD 1121

Endnotes:

1

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

[2016] FWCD 1240.

2

See rule 6.1.4 of the rules of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied

Services Union of Australia – Section A.

3

See rules 5, 6, 11, 13 & 16 of the rules of Communications Section of the Communications, Electrical, Electronic, Energy,

Information, Postal, Plumbing and Allied Services Union of Australia – Section D.

4

See rules 4(m), 4(n), 46, 46A, 46B, 75, 76 & 76A of the rules of Communications Section of the Communications,

Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia – Section D.

5

Baxter v Dwyer [2015] FCA 74.

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