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

[2015] FWCD 1121

[2015] 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

(R2013/149)

MR ENRIGHT	MELBOURNE, 18 FEBRUARY 2015
Alteration of other rules of organisation.

[1]        On 23 December 2013, the Communications, Electrical, Electronic, Energy,

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

with the Fair Work Commission (the Commission) a notice and declaration setting out

particulars of alterations to the rules of the Plumbing Division of the CEPU (the Divisional

Rules).

[2]        The particulars provide for the insertion of new rule 34 into the Divisional Rules. The

alterations were made for the purpose of complying with provisions of the Fair Work

(Registered Organisations) Amendment Act 2012 (the Amendment Act) regarding the rules

of registered organisations. In particular, the alterations provide for specified disclosures, the

implementation of policies relating to expenditure and the mandatory training of officers with

duties that relate to the financial management of the organisation. The Amendment Act

inserted various provisions into the Fair Work (Registered Organisations) Act 2009 (the Act)

which require the rules of an organisation to provide for such matters.

[3]        On 28 January 2014, the Commission wrote to the CEPU advising that the alterations

generally appeared to conform with the requirements set out in sections 141(1)(ca), 154D and

Division 3A of Part 2 of Chapter 5 of the Act. However, the CEPU was further advised that

the alterations suffered from two significant deficiencies.

[4]        Firstly, proposed sub-rules 34.2(c)(ii)(A) and 34.2(d)(ii)(A) refer to “relevant

remuneration received from the Division” and “relevant remuneration received from the

Branch” respectively. This is inconsistent with the definition of “relevant remuneration” set

out in subsection 148A(9) of the Act which defines this term as the sum of the following:

(a) any remuneration disclosed to an organisation or branch by an officer under

rules made pursuant to subsections 148A(1) or (2) of the Act during the

disclosure period; and

(b) any remuneration paid, during the disclosure period to an officer by an

organisation or branch.

[2015] FWCD 1121

Proposed sub-rules 34.2(c)(ii)(A) and 34.2(d)(ii)(A) are restricted in their operation to the

second limb of the definition of “relevant remuneration” set out above by the use of the words

“received from the Division” and “received from the Branch”. This leads to an inconsistency

with subsection 148A(5) of the Act.

[5]        Secondly, the alterations make no provision for the matters set out in subsection

148A(8) of the Act as they do not require that the disclosures set out in proposed sub-rules

34.2(c) and (d) are to be made:

 in relation to each financial year or a shorter period specified in the rules;

 within six months after the end of the financial year; and

 in a specified manner.

[6]        Given the above, the Commission advised the CEPU that it had two options available

to it in relation to the alterations set out in the notice of particulars, namely, proceed with the

alterations in the form set out in the notice of particulars and make further alterations

remedying the two issues outlined above at a later time or advise the Commission that the

CEPU will make a whole new raft of alterations taking into account those deficiencies. Given

the requirements of the Act, the Commission advised that it would be in the best interests of

the CEPU and the Plumbing Division to proceed with the certification of the alterations as set

out in the notice of particulars despite the deficiencies set out above.

[7]        On 15 October 2014, the Commission again wrote to the CEPU noting that it had yet

to receive a response to its correspondence of 28 January 2014 and requested advice from the

organisation regarding how it wished to proceed with the alterations set out in the notice of

particulars. The Commission also received no response to this correspondence.

[8]        On 21 January 2015, the Commission advised the CEPU that, as it had received no

response to its correspondence of 28 January and 15 October 2014, such a response was

required by 4 February 2015.

[9]        In correspondence dated 28 January 2015, Mr Earl Setches, Assistant National

Secretary of the CEPU, advised that the CEPU wished to proceed with the certification of the

alterations set out in the notice of particulars and that the organisation would make new

alterations to the Divisional Rules to remedy the deficiencies set out above as a matter of

urgency. Mr Setches also provided further information regarding the notice given of the

meeting of the Plumbing Divisional Council of 17-18 November 2013 during which the

alterations were made.

[10]      Notwithstanding the deficiencies outlined above, the substance of the rule alterations

does comply with the requirements of the Act. Although further alterations to the Divisional

Rules will be required, this does not prevent the certification of the alterations that have been

made. Given the length of time that has now elapsed since organisations and branches of

organisations have been required to have such rules, it is imperative that the Divisional Rules

substantially comply with the relevant provisions of the Act.

[11]      I note the advice of Mr Setches that the CEPU will make further alterations to remedy

the identified deficiencies as a matter of urgency. I remind the CEPU of the power of the

General Manager pursuant to section 156 of the Act to determine alterations to the rules of an

organisation where necessary to bring them into conformity of the provisions of the Act
[2015] FWCD 1121

should the Commission fail to receive any notification of such alterations within a reasonable

period of time.

[12]      On the information contained in the notice and the further correspondence of Mr

Setches of 28 January 2015, I am satisfied the alterations have been made under the rules of

the organisation.

[13]      On 29 January 2015, Mr Setches gave consent, under subsection 159(2) of the Fair

Work (Registered Organisations) Act 2009, 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:

 The second sub-rule numbered as 34.2(d)(ii)(A) has been renumbered as sub-rule

34.2(d)(ii)(B)

[14]      In my opinion, the alterations comply with and are not contrary to the Fair Work

(Registered Organisations) Act 2009 (the RO Act), the Amendment 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 RO Act.

DELEGATE OF THE GENERAL MANAGER

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