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

[2014] FWCD 739

[2014] FWCD 739

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

(R2013/408)

MR ENRIGHT	MELBOURNE, 3 FEBRUARY 2014
Alteration of other rules of organisation.

[1] On 10 October 2013, 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), the rules of the Electrical, Energy and Services Division of the CEPU - Section B (the Electrical Divisional

Rules) and the rules of the Plumbing Division of the CEPU - Section C (the Plumbing
Divisional Rules).

[2] The particulars set out alterations to rules 6.1.4 and 7.10 of the National Rules, alterations to rule 11.7.5 of the Electrical Divisional Rules and alterations to rules 3, 19.6.1 and 48.1.1 of, and the insertion of new rules 19.3.4, 41.11, 48.2.3 and 72 into, the Plumbing Divisional Rules.

[3] The purpose and effect of the alterations is to re-establish the Western Australian Branch of the Plumbing Division of the CEPU (the Plumbing Division) which was previously dissolved in alterations to the National Rules, the Electrical Divisional Rules and the Plumbing Divisional Rules certified on 30 September 2005. The alterations also entail the abolition of the Plumbing Section of the Western Australian Branch (the Plumbing Section) of the Electrical, Energy and Services Division (the Electrical Division) and the transfer of members currently attached to the Plumbing Section of the Western Australian Branch of the Electrical Division falling the category of eligible membership set out in rule 2.4 (excluding rule 2.4.5) of the National Rules to the newly established Western Australian Branch of the Plumbing Division.

[4] On 24 January 2014, the CEPU confirmed that a notice had been published on its web site noting that the notice of particulars was lodged with the Commission on 10 October 2013 in accordance with regulation 126(2) of the Fair Work (Registered Organisations) Regulations 2009 (the Regulations).

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

made under the rules of the organisation.
[2014] FWCD 739

[6] However, pursuant to section 159(1)(a) of the Fair Work (Registered Organisations) Act 2009 (the Act), I also need to be satisfied that, inter alia, the alterations comply with and are not contrary to the Act. This requires a consideration of three discrete issues which arise in the present matter regarding the consistency of the rule alterations with sections 141(1)(c), 142(1)(c) and 143(1) of the Act.

[7]        Section 141(1)(c) of the Act provides that the rules of an organisation:

“(c) may provide for the removal from office of a person elected to an office in the organisation only where the person has been found guilty, under the rules of the organisation, of:

(i)         misappropriation of the funds of the organisation; or

(ii)        a substantial breach of the rules of the organisation; or

(iii)       gross misbehaviour or gross neglect of duty;

or has ceased, under the rules of the organisation, to be eligible to hold the
office”.

[8] The alterations to rule 11.7.5 of the Electrical Divisional Rules have the effect of abolishing the Plumbing Section of the Western Australian Branch of the Electrical Division. Given the effect of rules 11.7, 11.11 and 15.19 of the Electrical Division Rules, this alteration will also have the further consequence of abolishing two offices of Divisional State Councillor and the office of Divisional Branch Executive Member from the Plumbing Section of the Western Australian Branch of the Electrical Division. This abolition will take effect upon certification of the alterations to rule 11.7.5 of the Electrical Divisional Rules. The office of Divisional Branch Executive Member is currently vacant.

[9] In several judgments of members of the Federal Court of Australia it has been held that predecessors to section 141(1)(c) of the Act apply to the abolition of offices made pursuant to alterations to the rules of an organisation to the extent that the abolition occurs before the expiry of the terms of those offices.1 However, the weight of authority suggests that

an abolition of an office in such circumstances does not attract section 141(1)(c) of the Act provided it is effected in accordance with the rules of the relevant organisation and is bona fide.2

[10] As noted above, I am satisfied that the alterations have been made in accordance with the rules of the organisation. The alterations to rule 6.1.4 of the National Rules were approved separately by the Divisional Councils of the Electrical Division and the Plumbing Division, the Divisional Executive of the Communications Division and the National Council in accordance with rule 21.4 of the National Rules. The alterations to the Plumbing Divisional Rules were approved by the Divisional Council of the Plumbing Division and the National Council in accordance with rule 21.2 of the National Rules. The alterations to the Electrical Divisional Rules were approved by the Divisional Council of the Electrical Division and the National Council in accordance with rule 21.2 of the National Rules. Given this, I am satisfied that the alterations reflect a bona fide exercise of the rule altering procedures of the organisation. On 24 January 2014, the CEPU lodged declarations from the current holders of the two offices of Divisional State Councillor indicating that they understand and accept the

[2014] FWCD 739

expiry of their terms of office which will occur upon the abolition of those offices. This reinforces my confidence that the alterations are bona fide and have been made for a proper purpose.

[11] I further note that another potential impact of the alterations to rule 11.7.5 of the Electrical Divisional Rules may be the abolition of the non-office position of Divisional Branch Organiser from the Plumbing Section as currently established by rules 11.7.6 and 15.6.2 of the Electrical Divisional Rules.

[12]       Section 142(1)(c) of the Act provides that the rules of an organisation:

“must not impose on applicants for membership, or members, or 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.”

[13] In the context of rules made or actions undertaken pursuant to a restructure of an organisation, several authorities of the Federal Court of Australia indicate that the abolition of an office or the reassignment of the members of a branch of an organisation may result in the imposition of “conditions, obligations or restrictions” that are “oppressive, unreasonable or unjust”. This body of case law represents a restriction on the capacity of an organisation to otherwise organise its “internal structures as it thinks fit”.3

[14] For example, in Benson v Construction, Forestry, Mining and Energy Union (1995) 60 IR 394 (Benson) it was held that the abolition of an office placed a burden that was oppressive, unreasonable or unjust upon “a significant number of applicants for membership or members”4 in circumstances where the affected members had approved a previous amalgamation of their organisation on the basis of a set of rules which provided for that office and would look to that particular official for assistance after the amalgamation had occurred. In this regard, it is not sufficient that the relevant condition, obligation or restriction is oppressive, unreasonable or unjust with reference to a single member or office holder for any potential inconsistency with section 142(1)(c) to arise.5

[15] In Bramich v Transport Workers’ Union of Australia (2000) 97 FCR 204 (Bramich) the Full Court of the Federal Court found that a resolution of a federal committee of management of an organisation to disband one of its state branches without reconstituting that branch or assigning the members of the branch to another infringed 196(c) of the Workplace

Relations Act 1996 (the predecessor of section 142(1)(c) of the Act). The court stated that:

“if an organisation elects to assign its members to branches or divisions, it must not do so in a way which significantly discriminates or differentiates between members in the extent of quality of their participation in the democratic control, or the affairs, of the organisation.”6

[16] The effect of the alterations in the present matter is readily distinguishable from the circumstances in decisions such as Benson and Bramich in a number of significant ways. As noted above, the members currently attached to the Plumbing Section of the Western Australian Branch of the Electrical Division are to be transferred to the newly established Western Australian Branch of the Plumbing Division with the benefit of representation from a greater number officers specifically attached to, and a separate Committee of Management of, [2014] FWCD 739

the branch. Further, the status of the affected current and potential members will be elevated so as to constitute a separate branch within one of the divisions of the CEPU rather than merely a section within such a branch.

[17] Therefore, I cannot discern any relevant condition, obligation or restriction that is oppressive, unreasonable or unjust for the purposes of section 142(1)(c) of the Act.

[18] Section 143(1)(a) of the Act provides that the rules of an organisation must provide for

the election of the holder of each office in the organisation by a direct voting system or a
collegiate electoral system.

[19]      Proposed new rule 48.2.3 to be inserted into the Plumbing Divisional Rules provides

that:

“...the question of whether an election is conducted for the office of Branch Vice President, Branch Assistant Secretary, Branch Trustee or Trustees and Branch Organiser at any election shall be determined by the Committee of Management prior to the election concerned”.

[20] One possible interpretation of this proposed new rule is that the Committee of Management may, at its discretion, determine if the offices it refers to will be filled by election or appointment. This would be inconsistent with the Act. However, it can also be construed as merely indicating that the Committee of Management will determine if the relevant offices are to be established prior to a scheduled election for the newly created branch. On 24 January 2014, the CEPU confirmed that the intention behind the proposed sub-rule is consistent with the latter interpretation. On the basis that this is how proposed new sub-rule 48.2.3 will be applied, I am prepared to certify this particular alteration.

[21] On 24 January 2013, Mr Earl Setches, Assistant National Secretary of the CEPU gave consent, under subsection 159(2) of the Act, for the Delegate to make various amendments to the alterations for the purpose of correcting typographical, clerical or formal errors. Accordingly the following corrections have been made:

 In proposed rule 48.2.3 of the Plumbing Divisional Rules, the second sub-rule

labelled (e) in the notice of particulars has been renumbered as (f) with the sub-rule
labelled (f) in the notice of particulars, consequently being renumbered as (g).

[22] In my opinion, the alterations comply with and are not contrary to the Act, 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.

[2014] FWCD 739

DELEGATE OF THE GENERAL MANAGER

Endnotes

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

Ludwig (1994) 57 IR 436 at 446.

2 See Saint v Australian Postal and Telecommunications Union (1977) 30 FLR 385 at 393 per Dunphy & Evatt JJ; Hills v

Higgins (1982) 61 FLR 131 at 143; Roughan v Coulson (1982) 3 IR 393 at 396; Benson v Construction, Forestry, Mining

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

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

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

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

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

Printed by authority of the Commonwealth Government Printer

<Price code A, PR547295>