Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
[2015] FWCD 3710
•8 July 2015
[2015] FWCD 3710
| 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
(R2015/53)
Communications, Electrical, Electronic, Energy, Information, Postal,
Plumbing and Allied Services Union of Australia
(R2015/54)
| MR ENRIGHT | MELBOURNE, 7 JULY 2015 |
| Alteration of other rules of organisation. | |
| Background |
[1] On 13 March 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). This notification has been allocated
matter number R2015/53.
[2] On the same date, the CEPU also lodged a notice of particulars setting out alterations
to the rules of the Electrical, Energy and Services Division of the CEPU - Section B (the
Electrical Divisional Rules). This notification has been allocated matter number R2015/54.
[3] The particulars set out alterations to rules 7, 7A and 8 of the National Rules and rule
20 of the Electrical Divisional Rules.
[4] The substance of the alterations has previously been set out in a notice of particulars
lodged by the CEPU on 17 April 2014. That notification was allocated matter number
R2014/82. Although the content of the relevant alterations in that matter are identical to those
set out in the current matters, they were purportedly made at different times by different
mechanisms pursuant to the rules of the CEPU.
[5] In order to appreciate the issues raised in the current matters, it is necessary to detail
the passage of the alterations in matter R2014/82.
[6] After the notice of particulars for that matter was lodged, Mr Ken Hardisty, the
Divisional Assistant Secretary of the Communications Division of the CEPU and a member
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of the National Council of the organisation, raised concerns regarding whether the alterations
in that matter were validly approved by the National Council, and consequently, whether they
were made under the rules of the CEPU.
[7] In accordance with a request from the Commission, the CEPU subsequently lodged a
further statutory declaration addressing the issues raised by Mr Hardisty’s concerns.
[8] On 24 October 2014, despite Mr Hardisty’s objection, I certified the alterations
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pursuant to section 159(1) of the Fair Work (Registered Organisations) Act 2009 (the Act).
[9] Of particular relevance to the current matters, the alterations included amending rule
7.11 of the National Rules. Prior to certification, rule 7.11 of the certified National Rules
provided that:
“7.11 Quorum of National Council At all meetings of National Council each Division must be represented by a majority
of its National Councillors or their proxies to constitute a quorum.
Upon certification, rule 7.11 as it appeared in the certified National Rules provided that:
“7.11 Quorum of National Council A majority of National Council members shall constitute a quorum provided each
Division is represented”
[10] For ease of reference, I shall refer to rule 7.11 as it appeared before the alterations in
matter R2014/82 were certified on 24 October 2014 as the Old Quorum Rule and as it
appeared on and from certification as the New Quorum Rule.
[11] Mr Hardisty subsequently lodged an appeal against my decision certifying the
alterations in matter R2014/82 pursuant to section 604 of the Fair Work Act 2009. In a
decision issued on 20 February 2015, a Full Bench of the Commission found that the
alterations in that matter had not been made under the rules of the CEPU and consequently
upheld this ground of Mr Hardisty’s appeal and quashed my decision of 24 October 2014
2
certifying them.
[12] In accordance with the orders issued by the Full Bench, the Commission rectified the
certified National Rules and Electrical Divisional Rules by restoring them to the terms they
were in immediately before my decision of 24 October 2014 with a notation alerting the
reader as to the effect of the Full Bench’s decision.
[13] On 12 March 2015, Mr Hardisty advised the Commission that it was his understanding
that the CEPU intended to imminently lodge a notice of particulars setting out alterations
identical to those in matter R2014/82. Mr Hardisty also requested an opportunity to be heard
in relation to the potential certification of any such alterations pursuant to section 159(1) of
the Act.
[14] Given the background to the alterations set out above, and in the interests of
procedural fairness, the Commission afforded Mr Hardisty an opportunity to lodge
[2015] FWCD 3710
submissions in relation to the certification of the alterations. Accordingly, on 17 March 2015,
the Commission wrote to Mr Hardisty and Mr Allen Hicks, National Secretary of the CEPU,
directing them to file and serve any submissions they wished to make regarding the
certification of the alterations. Both Mr Hicks and Mr Hardisty lodged submissions in
accordance with those directions.
[15] On 24 April 2015, the Commission again wrote to Mr Hardisty inviting him to provide
evidence of the assertions made in his submissions lodged on 1 April 2015. On 8 May 2015,
after being a given a brief extension of time to file, Mr Hardisty provided further material.
[16] Given the nature of the material lodged by Mr Hardisty, I wrote to Mr Hicks on 20
May 2015 inviting him to provide any further evidence that would assist me in forming the
opinion that the alterations had been made in accordance with the rules of the CEPU.
Accordingly, Mr Hicks lodged further submissions on 29 May 2015.
[17] The various submissions and documentation lodged by Mr Hardisty and Mr Hicks
address two key issues, namely, whether the alterations were validly made under the rules of
the CEPU and whether they impose “conditions, obligations or restrictions” that are
“oppressive, unreasonable or unjust” for the purposes of section 142(1)(c) of the Act.
Statutory Framework
[18] 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.”
Rule Alteration Procedure
[19] Rule 21 of the National Rules contains the relevant mechanism for making alterations
to the rules of the CEPU. It provides as follows:
“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. [2015] FWCD 3710
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.”
Declaration
[20] In his declarations of 12 March 2015 which were lodged with the notices of particulars
for both matters in accordance with regulation 126(2) of the Fair Work (Registered
Organisations) Regulations 2009, Mr Hicks stated that the alterations “were made in
accordance with the procedures prescribed by the rules of the organisation”. The declarations
then provide statements in relation to the actions undertaken by the CEPU to purportedly
make the alterations in accordance with the various provisions regarding the conduct of
meetings of National Council set out in rule 7 of the National Rules. Mr Hicks stated that the
alterations in both matters were approved during the Annual Meeting of National Council
held on 6-7 November 2014. Significantly, both declarations provide that:
“The National Council meeting met the quorum requirements of Section A rule 7.11
‘Quorum of National Council’, as prescribed prior to 20 February 2015, as each
Division was represented by a majority of its National Councillors”
Mr Hicks further stated that the National Council unanimously passed the relevant resolution
to make the alterations in accordance with the requirements set out in the National Rules
regarding voting on National Council and the requisite threshold for carrying a resolution of
National Council.
[21] The declaration in relation to the alterations in matter 2015/54 stated that the alteration
to rule 20 of the Electrical Divisional Rules had been previously approved by the Divisional
Council of the Electrical, Energy and Services Division in a decision made by correspondence
ballot which closed on 20 March 2014.
Submissions
[22] Both Mr Hardisty and Mr Hicks each filed two separate sets of submissions with the
Commission and each attached documents related to the issue of whether the alterations in the
current matters had been made under the rules of the CEPU.
[23] In his submissions of 1 April 2015, Mr Hardisty asserted that Mr Hicks’ statements in
his declarations of 12 March 2015 referred to above were incorrect as the requisite quorum for
a meeting of National Council was not present at the time the relevant resolution to make the
alterations was carried. Mr Hardisty conceded that he was not present during the relevant
National Council meeting but indicated that he was aware that several other National
Councillors from the Communications Division were not present and that a quorum had been
lost at the time the resolution was voted upon.
[24] Mr Hardisty also made various submissions to the effect that the alterations were
“oppressive, unreasonable or unjust” for the purposes of section 142(1)(c) of the Act. The
substance of these submissions is based on his view that the alterations eroded the safeguards
[2015] FWCD 3710
set out in the National Rules regarding representation by Divisions and Industry Groups and
Sections.
[25] Mr Hicks filed his first set of submissions on 10 April 2015 having been earlier
provided with the submissions dated 1 April 2015 from Mr Hardisty. The issues addressed in
Mr Hicks’ submissions can be divided into five broad categories.
[26] Firstly, Mr Hicks noted that Mr Hardisty had failed to provide any evidence to
support his assertions that there was no quorum present when the relevant resolution was
purportedly carried during the Annual Meeting of National Council on 6 November 2014.
[27] Secondly, Mr Hicks asserted that there had been a quorum present at all times during
the progress of the National Council meeting. In this regard, Mr Hicks relied on a ruling
apparently made during the meeting by the National President of the CEPU, Mr Dan Dwyer,
that there was a quorum under both the Old Quorum Rule and the New Quorum Rule. Mr
Hicks further noted that pursuant to rule 8.2 of the National Rules, the National President acts
as chair of all National Council meetings and is, therefore, charged with ensuring the proper
conduct of business at such meetings.
[28] Mr Hicks’ submission attributed significance to the fact that Mr Dwyer did not
adjourn the meeting during the course of 6 November 2014 on the grounds of a failure of
quorum.
[29] Thirdly, and alternatively, Mr Hicks argued that the rules certified by me on 24
October 2014 were the valid rules of the CEPU as at the date of the Annual Meeting of
National Council on 6 November 2014. This conclusion is based on an analysis of various
authorities where the principles concerning the concept of nullity or the distinction between a
void and voidable decision or order have been discussed. In short, the substance of Mr Hicks’
submission was that my decision of 24 October 2014 had legal effect until it was quashed
pursuant to the orders made by the Full Bench of the Commission on 20 February 2015 and
that any action taken pursuant to the certified rules of the CEPU as they appeared over the
intervening period was valid.
[30] Fourthly, Mr Hicks referred to a number of authorities which provide that a party who
deliberately withdraws from a meeting so as to cause a quorum to fail should be estopped
from relying on such failure of quorum in seeking relief and argued that this doctrine should
be applied to Mr Hardisty.
[31] Finally, Mr Hicks went on to extensively deal with Mr Hardisty’s arguments regarding
the application of section 142(1)(c) of the Act.
[32] Attached to Mr Hicks’ submissions of 10 April 2015 was an extract of the “draft”
minutes of the proceedings of the National Council meeting on 6 November 2014 and a
statutory declaration made by him on 10 April 2015 amongst other documentation.
[33] Mr Hardisty provided further documentation and submissions on 8 May 2015.
Attached to those submissions was a complete copy of the draft minutes referred to above,
two brief statements, from a member of National Council, and from a member who had
attended the meeting as a proxy for an absent member of National Council, and a copy of
email correspondence between Mr Hicks and Mr Dwyer dated 30 March 2015.
[2015] FWCD 3710
[34] In his final submissions lodged on 29 May 2015, Mr Hicks indicated that he relied on
his previous submissions regarding the validity of the rules as certified by me on 24 October
2014 at the time the alterations were purportedly made and the maintenance of quorum under
both the Old Quorum Rule and the New Quorum Rule. He reiterated his argument regarding
the application of the doctrine of estoppel and concluded that the Commission could be
satisfied that the rule alterations had been validly made under the rules of the CEPU.
[35] As can be seen from the chronology of submissions, I have provided extensive
opportunity to Mr Hardisty and Mr Hicks to ventilate and re-ventilate their respective
arguments through written submissions, each having for the most part, the considered
opportunity and benefit of basing their submissions on material lodged by the other.
Consideration
[36] While I have not specifically referred in this decision to every limb of the respective
submissions and arguments made by Mr Hardisty and Mr Hicks, I have nonetheless carefully
considered every aspect of the submissions and documentation filed.
The Old Quorum Rule
[37] As I noted above, in his declarations of 12 March 2015 Mr Hicks stated that the
Annual Meeting of National Council of 6-7 November 2014 had met the quorum requirement
under both the Old Quorum Rule and the New Quorum Rule as “each Division was
represented by a majority of its National Councillors”. From my analysis of all the material
lodged in this matter, it is apparent to me that there may have been a valid quorum under both
the Old Quorum Rule and the New Quorum Rule at the commencement of the meeting on 6
November 2014. However, as the Full Bench in Hardisty v Communications, Electrical,
Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
[2015] FWCFB 960 noted:
“there is no reference in the CEPU’s rules that the quorum requirement applies at any
particular time during national Council meeting, so the general rule applies – that is, a
3
quorum must be present at all times”.
[38] The extract of the draft minutes of the proceedings of the Annual Meeting of
National Council of 6 November 2014 attached to Mr Hicks’ submissions at Annexure AH1
indicates that there was a total of nine National Councillors from the Communications
Division present. Eleven National Councillors from the Communications Division were
identified as absent.
[39] The total number of twenty National Councillors from the Communications Division
identified in the draft minutes is consistent with the information provided to the Commission
from previous matters in which the CEPU has provided such evidence as well as the annual
4
| return of information lodged by the CEPU pursuant to section 233 of the Act. | Thus, |
according to the draft minutes, out of a total of twenty National Councillors from the
Communications Division, there were only nine National Councillors present at the Annual
Meeting of National Council on 6 November 2014. This number would not have constituted
a quorum under the Old Quorum Rule.
[2015] FWCD 3710
[40] However, the minutes also identify as present two other officers from the
Communications Division, though not National Councillors, who acted as proxies for absent
National Councillors in accordance with rule 7.15.2. Pursuant to the Old Quorum Rule, those
officers who acted as proxies are also to be counted in the reckoning of a quorum. This meant
that a total of eleven participants, that is, a majority, of National Councillors from the
Communications Division or their proxies, were present at the commencement of proceedings
on 6 November 2014.
[41] The minutes also indicate that one member of National Council from the
Communications Division, Ms Joan Doyle, left the meeting before the resolution making the
alterations in these matters was purportedly carried by National Council. This meant that the
number of participants present from the Communications Division was reduced to ten. At the
point of Ms Doyle leaving the meeting, there was no longer a majority of National
Councillors from the Communications Division present. This fact raises a question about
whether, at the relevant time in so far as the resolution making the alterations in these matters
is concerned, the requisite quorum was present.
[42] Mr Hicks’ submissions regarding the presence and maintenance of a quorum under the
Old Quorum Rule rely in large part on the apparent ruling made by Mr Dwyer that there was a
quorum under both the Old Quorum Rule and the New Quorum Rule. According to the draft
minutes provided, this ruling occurred after Ms Doyle left the meeting. In his statutory
declaration of 10 April 2015 Mr Hicks declared that between the time of Mr Dwyer’s ruling
and the resolution being carried “no-one left the meeting”.
[43] In my view, there are two problematic aspects about Mr Hicks’ statement in so far as
his reliance on the apparent ruling by Mr Dwyer is concerned. Firstly, this apparent ruling by
the National President appears to be inconsistent with the minutes which do not record any
material change to the number of attendees after Ms Doyle’s departure. Secondly, the material
provided by Mr Hardisty on 8 May 2015 includes a copy of an email exchange between
Messrs Hicks and Dwyer on 30 March 2015.
[44] In that exchange, Mr Dwyer stated that the entry of his ruling in the circulated draft
minutes to the effect that there was “still” a quorum under both the Old Quorum Rule and
New Quorum Rule after Ms Doyle left the meeting was not correct and he expressed his
belief that there would not have been a quorum at that point.
[45] Mr Dwyer also indicated that he thought he had given a ruling at the commencement
of the meeting and not after Ms Doyle’s departure. It is not, in my view, without significance
that Mr Hicks has not sought to challenge, or provide evidence that contradicts, the
authenticity of that email exchange or the fact that Mr Dwyer expressed such views
particularly in the context that pursuant to rule 8.2.3 of the National Rules, Mr Dwyer is the
CEPU official responsible for signing minutes of National Council meetings.
[46] While I note that the minutes provided are in draft form only and, therefore, carry a
lesser evidentiary value than endorsed minutes, I have been required to discharge my statutory
duty based on the materials available to me which have emerged from the chronology I have
disclosed above. In this case, the available and extensive materials have been provided by the
CEPU, Mr Hicks and Mr Hardisty.
[2015] FWCD 3710
[47] I have taken into account Mr Hicks’s submissions regarding the duty, purported to be
owed by Mr Dwyer as chair of the meeting, to adjourn proceedings at the point he understood
the quorum to have lapsed. This clearly did not happen.
[48] However, while I accept that Mr Dwyer is the CEPU official charged with chairing
and subsequently signing the minutes of meetings of National Council, his failure to discharge
his duty in this regard cannot be determinative of the consideration required to be made
pursuant to section 159(1) of the Act.
[49] Having carefully taken into account the relevant materials, including and in particular
the draft minutes provided and the copy of the email exchange between Messrs Dwyer and
Hicks, I am not satisfied that the requisite quorum was present under the Old Quorum Rule at
the time the resolution making the alternations was purportedly carried during the proceedings
of the Annual Meeting of National Council on 6 November 2014.
The New Quorum Rule
[50] In the alternative, Mr Hicks submitted that the relevant quorum required to be met was
that set out in the New Quorum Rule at the time of the National Council meeting on the
grounds that the rule alterations certified by me on 24 October 2014 were the valid rules of
the CEPU at the material time.
[51] This submission was based on an analysis of various principles derived from
authorities dealing with the effect of the quashing of, and the distinction between void and
voidable, decisions or orders. Further, Mr Hicks argued that there is an inference that is open
for the Commission under the Fair Work Act 2009 to issue orders with retrospective effect
and asserted that it was significant that the Full Bench had not specifically mentioned in its
orders any date of effect prior to 20 February 2015 in this regard. It was also submitted that
Vice President Hatcher’s decision not to grant Mr Hardisty’s application for a stay of my
5
| decision in the associated appeal proceedings | also lent support to the view that the valid rules |
of the CEPU at the relevant time had been those certified by me on 24 October 2014.
[52] The orders issued by the Full Bench on 20 February 2015 quashed my decision of 24
October 2014 in which I certified the relevant alterations including the alteration to rule 7.11.
It follows that the previous certification of those alterations was null and void. I have
respectfully taken into account the decision and orders issued by the Full Bench on 20
February 2015 and I have not discerned anything from my analysis of that decision or those
orders which would suggest that the general principles associated with the quashing of a
decision do not apply.
[53] Further, the submission of Mr Hicks is inconsistent with previous authority regarding
the status of the rules of organisations certified under the Act and its predecessors. The key
decision in this regard is Krantz v Maynes (1967) 10 FLR 134 (Krantz v Maynes).
Krantz v Maynes involved an application under s. 141 of the Conciliation and
Arbitration Act 1904 (the CA Act), the predecessor of s. 164 of the Act, directing the
respondents involved to perform and observe the rules of the relevant organisation.
[55] The key issue of dispute between the parties was which set of rules represented the
valid rules of the organisation at the time material to the proceedings. The rules of the
[2015] FWCD 3710
organisation were purportedly altered during a meeting of the committee of management of
the organisation and those alterations were subsequently certified by the Registrar pursuant to
section 139(4) of the CA Act. The claimant sought an order that the respondents obey the
rules of the organisation as they were prior to that purported alteration on the basis that the
resolutions carried at the relevant meeting of the committee of management were ineffective
to amend the rules of the organisation as the requirements set out in the rules of the
organisation for making alterations to the rules had not been complied with. The
Commonwealth Industrial Court accepted the claimant’s submission that the result of the non-
compliance with the relevant rule alteration procedure set out in the rules was that the
resolutions to so amend those rules were of no effect.
[56] In dismissing a submission that the filing of the alterations with the Registrar and their
subsequent certification pursuant to section 139(4) of the CA Act gave them the status of
rules “on the register” which therefore precluded an investigation into whether such rules had
been validly made, the court observed that:
“...it is important to observe that there is no provision in the Act for the registration of
alterations to the rules of an organisation which are made by that organisation. There
6
is, technically speaking, no register thereof”.
[57] Regarding the status of rules certified by the Registrar, the court concluded that:
“so far as alterations of rules made by an organisation and filed under s. 139 are
concerned, that which is commonly referred to as “the register” is simply a rules file...
...
No valid contention can rest therefore on the notion that the filed rules are or ought to
7
be regarded as being necessarily the valid rules of an organisation.”
[58] In Re Vehicle Builders Employees Federation of Australia (1975) 6 ALR 39,
Woodward J of the Australian Industrial Court dealt with an application for an inquiry into an
election for offices pursuant to the predecessor provisions of Part 3 of Chapter 7 of the Act.
The facts involved the certification of certain rule amendments which affected the relevant
election and which were subsequently found to have been invalidly made. The relevant
Registrar considered that he had no power to then alter the rule amendments previously
certified by him pursuant to section 139 of the CA Act. The key issue to consider in this
matter was whether the Registrar and the relevant returning officer were bound to follow the
rules of the organisation incorporating the alterations previously certified. In rejecting this
submission, Woodward J followed Krantz v Maynes and stated that:
“...it is incumbent upon the Registrar, when the decision of the court is brought to his
notice by whatever means, to give effect to it by making any necessary corrections to
the set of rules filed with him. In doing so, he is not recording an amendment to rules,
he is merely ensuring the accuracy of the copy of the rules which he has in his custody.
This set forms the basis for any certified copy he may provide on request pursuant to s
157 of the Act. If, for any reason, the Registrar becomes satisfied that the rules filed
with him are not the true rules of the organization, as arrived at by due process of
adoption or later amendment, I believe that it is his right and his duty to set his records
straight. It would seem desirable that he should then re-certify the rules as corrected -
not because they have been further altered, but because his previous certification was
[2015] FWCD 3710
based in part on a mis-statement of the rules and could perhaps be called in question on
that account...
…
The result of a finding that an amendment is invalid is that that amendment has never
had any force or effect; the rules have, to that extent, never been altered, and all that is
required is the correction of records so that they accurately reflect the true rules of the
8
organization.”
[59] Mr Hicks’ submission rests upon the contention specifically rejected in Krantz v
Maynes, namely, that the certification of alterations pursuant to s. 159(1) of the Act gives
them a status as valid unless and until a court finds otherwise. It is clear that once a finding is
made that a particular alteration was not validly made under the rules of an organisation, that
alteration never had any legal effect or force. Therefore, the effect of the Full Bench’s
decision of 20 February 2015 is that the alteration to rule 7.11 certified by me on 24 October
2014 never took effect as it was found not to have been validly made under the rules of the
CEPU.
[60] I note that the Commonwealth Industrial Court’s reasoning in Krantz v Maynes relies
to an extent on the fact that certification of alterations under s. 139(4) of the CA Act did not
require the Registrar to certify that in his or her opinion the alterations had been made under
the rules of the relevant organisation. Further, the court noted that section 157 of the CA Act
provided that a copy of the rules of an organisation certified by the Registrar to be a true and
correct copy was only “prima facie” evidence of the rules of the organisation.
[61] As noted above, section 159(1) of the Act provides that an alteration of the rules of an
organisation does not take effect unless the General Manager (or the Delegate to the General
Manager) has certified, in his or her opinion that, among other things, the alteration has been
made under the rules of the organisation. Section 161 of the Act has also seemingly enhanced
the evidentiary significance of a copy of the rules of an organisation certified by the General
Manager to be a true and correct copy by omitting the words “prima facie”.
[62] However, the crucial provisions of the CA Act referred to in Krantz v Maynes as
underpinning the court’s reasoning dealing with the keeping and maintenance of a register of
organisations, the issuing of a certificate of registration to organisations and the recording of a
change of name of an organisation or an alteration to its eligibility rules all have their
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| equivalents in the Act. | Thus, it appears that the essential scheme of the Act regarding such |
matters has not been substantially altered since Krantz v Maynes was decided. In my view, the
differences between ss. 139(4) and 157 of the CA Act and ss. 159(1) and 161 of the Act are
not sufficient to distinguish Krantz v Maynes to the circumstances before me.
[63] The effect of Krantz v Maynes regarding the effect of when an alteration can be
considered invalid and void is also consistent with another line of authority regarding the
effect of the operation of predecessors to section 142(1) of the Act regarding rules which
10
contravene its terms.
[64] The submissions of Mr Hicks regarding the effect of Vice President Hatcher’s decision
refusing to grant Mr Hardisty’s application for a stay in the appeal proceedings and the
[2015] FWCD 3710
various provisions of the Fair Work Act 2009 he points to do not persuade me that the valid
rules of the CEPU as at 6 November 2014 were those certified on 24 October 2014.
[65] For the reasons set out above, it is my view that the rules incorporating the alterations
certified by me on 24 October 2014 were not the valid rules of the CEPU at the time of the
Annual Meeting of National Council on 6 November 2014. Therefore, the New Quorum Rule
did not set out the relevant quorum requirement for meetings of National Council at the
material time. Rather, the Old Quorum Rule was the valid version of rule 7.11. Given my
earlier finding that I am not satisfied that the Old Quorum Rule was fulfilled at the time the
relevant resolutions were purportedly carried, I cannot form the requisite opinion that the
alterations were made in accordance with the rules of the CEPU.
[66] I am not persuaded that Mr Hicks’ submissions regarding the application of the
doctrine of estoppel in circumstances where a party has deliberately withdrawn from a
meeting so as to render it inquorate assist me in exercising my function under section 159 of
the Act. Section 159(1) of the Act requires the General Manager (or the Delegate of the
General Manager) to form the requisite opinion regarding certain matters including whether
or not a particular alteration has been made under the rules of an organisation. Upon
certifying that that opinion has been formed, the relevant alterations take effect.
[67] In my view, the certification of alterations pursuant to s. 159(1) of the Act does not
involve a party seeking relief or pursuing a cause of action against another party or parties. In
any event, I have indicated above that the relevant quorum was no longer present at the time
Ms Joan Doyle departed the meeting and I note that the totality of the materials referencing
the circumstances of her leaving appear to be comprised of the words “J Doyle issues
11
apologies and exits the CEPU national meeting at 11.01 a.m.”
[68] I have also taken into account that neither Mr Hardisty nor Mr Hicks addressed in their
submissions the potential application of the validating provisions set out in Part 2 of Chapter
11 of the Act, including section 319, to the circumstances of the alterations before me. In my
view, although the circumstances may fall within the definition of an “invalidity” set out in
section 318 of the Act, the operation of section 319 of the Act cannot affect my determination
under section 159(1) of the Act for the purposes of forming the requisite opinion that a
particular alteration has been made under the rules of an organisation.
[69] Given my findings that the alterations in both matters have not been validly made, it is
not necessary for me to consider the submissions of Mr Hardisty and Mr Hicks regarding their
compliance with section 142(1)(c) of the Act.
[70] For the reasons set out above, I formally refuse to certify the alterations.
[2015] FWCD 3710
| DELEGATE OF THE GENERAL MANAGER |
| Endnotes: |
| 1 |
| Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia |
[2014] FWCD 6659.
2
Hardisty v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of
Australia [2015] FWCFB 960.
3
Ibid at 13.
4
See return filed in matter AR2015/61 on 2 April 2015.
5
Hardisty v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of
Australia [2014] FWC 8032.
6
Krantz v Maynes (1967) 10 FLR 134 at 145.
7
Ibid at 146-147.
8
Re Vehicle Builders Employees Federation of Australia (1975) 6 ALR 39 at 41-42.
9
Conciliation and Arbitration Act 1904 ss. 131, 132, 135,139(1) & 139(3); Fair Work (Registered Organisations) Act 2009
ss. 13(1)(a), 19, 26(1), 26(4), 26(5), 159(1) & 160.
10
R v Commonwealth Industrial Court; Ex parte AEU (1960) 103 CLR 368; Re Keely; Ex parte Kingham (1995) 129 ALR
255.
11
See entry in draft minutes immediately before Item 4.4.
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