Construction, Forestry and Maritime Employees Union

[2024] FWCD 1036

[2024] FWCD 1036

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

Construction, Forestry and Maritime Employees Union

(R2024/74)

CHRIS ENRIGHT MELBOURNE, 9 JULY 2024

Alteration of other rules of organisation.

1. On 28 May 2024 the Construction, Forestry and Maritime Employees Union (the Union) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules.

1. The Union seeks certification of the alterations under section 159 of the Fair Work (Registered Organisations) Act 2009 (the Act).

1. On the information contained in the notice and declaration, I am satisfied the alterations have been made under the rules of the organisation.

1. The particulars set out alterations to Rules 5, 14, 16, 22, 23, 26A, 30 and 31. In addition the alterations set out the deletion of Rules 22A, 24B, 24C, 24D, 50B, 50C and 50D.

1. The proposed alterations can be divided into three groups.

1. The first group[1] of alterations delete rules relating to financial management training and specified disclosures. Rules providing for those matters were required by the Fair Work (Registered Organisations) Amendment Act 2012. The Fair Work (Registered Organisations) Amendment Act 2016 changed that requirement. It removed the need for rules to make provision for those matters. Instead, it made similar duties statutory obligations under Part 2A of Chapter 9 of the Act.

1. The second group make the National Secretary responsible for the keeping of minute books in which are recorded proceedings and resolutions of meetings of the National Executive Committee, National Executive and National Conference.[2]

1. None of those alterations are controversial. They require no discussion other than the expression of the opinions required under s.159(1)(a) & (b) of the Act. Those opinions are set out below.

1. The final group of alterations alter the way various governing bodies in the Union are constituted.

1. They do so by:

   ·   changing the way the National Secretary comes to hold office and removing provision for associated matters;[3]

   ·   abolishing the vacant office of International President;[4] and

   ·    abolishing one of four National Vice President offices.[5]

2. Those alterations warrant discussion.

1. The proposed alterations were transacted by the Union’s National Executive.[6] In the lead up to transacting the alterations members of the National Executive were given an explanatory document which outlined the proposed alterations and provided commentary about the meaning of the changes as well as the rationale behind them. A copy of that document was lodged in the Commission.[7]

1. In my view the explanatory document accurately summarises the nature of the proposed alterations. Extracts of the explanatory document are set out below. I agree with those extracts and adopt them for the purposes of this decision.

1. The explanatory document states:

“• Between about 2011 until 2022, the Union’s national rules provided that the National Secretary, National Assistant Secretary, National President and International President offices must be held by the principal officer of each division. Each division also held one Vice President office”;[8]

1. In other words, during that period the Union’s executive officers were allocated among the Union’s Divisions in equal proportion. Each Division would have two executive officers. Each Divisional Secretary would hold one of the offices of National Secretary, National Assistant Secretary, National President or International President. In addition, each Division was guaranteed a Vice President.

1. The explanatory statement continues:

   “• In 2022, rule changes were made in R2021/98 ([2022] FWCG 25) which changed the structure of the National Office so that the National Secretary became a stand-alone, full-time position with the requirement that the person holding the National Secretary office must relinquish all other positions within the union (other than being a delegate to the divisional conference of the division they came from, which put them in the national collegiate and therefore made them eligible to hold the National Secretary office). Each Division still retained a Vice President office, and a new office of National Senior Vice President was created in order to ensure that each Division maintained an equal number of National offices (but for the now stand-alone National Secretary office);

   • Following the de-amalgamation of the now Mining and Energy Union in 2023, the number of Vice Presidents reduced to 3, and the office of national Senior Vice President was abolished to reflect the fact that the Union was now comprised of 3 Divisions;” [9]

2. In other words, the Union’s executive officers are not presently allocated among the Union’s Divisions in equal proportion. One Division will end up with three executive officers. The other Divisions will have two.

1. The explanatory statement continues:

• The current National Secretary, Chris Cain, has indicated his intention to retire on 1 July 2024. The proposed rule changes below revert the rules back to the pre-2022 scenario following his retirement, so that the National Secretary, National President and National Assistant Secretary offices would be held by the principal officers of each division (essentially the reverse of the rule changes made in R2021/98). The office of International President, which has been vacant for some time, will also be abolished to ensure ongoing equal representation amongst the national offices between the three Divisions;

• The structure of the union is otherwise unaltered (including the “card vote” which determines proportional representation amongst the Divisions);”[10]

and

“The first change is to reduce the number of national officers to 3 [being the three Vice Presidents who will, together with the National Officers i.e. the National Secretary, National President and National Assistant Secretary, make up the executive officer cohort] consistent with the fact that there are now three divisions following the de-amalgamation of the MEU. This should have been changed at the time of the MEU de-amalgamation taking effect (on 1 December 2023), but the written reference was omitted in error when the numerical reference was adjusted.

The second change is to abolish the International President office, in order to maintain equal representation of the Divisions amongst the national offices.

Note that consequential amendments are also made to rr22(5), 23(iv) and (v), 26A(5), 30(a) and 31(a),(d) and (e); these amendments do nothing other than remove redundant cross references to the International President office.

The changes to the second paragraph [of Rule 16(i), which deal with the way the National Secretary comes to hold office] represent reversion to the previous scenario where the Principle officers hold, between them, the National Offices.

Additional words have been inserted to make it clear that the rule change is intended to take effect on and from 1 July 2024 (as opposed to on and from the next scheduled election).”[11]

1. As can be seen, the proposed alterations to Rule 16(i) result in each Divisional Secretary holding one of the offices of National Secretary, National Assistant Secretary or National President. In addition, each Division will be guaranteed a Vice President.

1. An organisation has the right to mould its internal structures as it sees fit, provided it complies with the requirements of the legislation.[12] This includes the structure of its governing bodies. A relevant requirement of the Act is that rules must not impose conditions, obligations or restrictions that are, having regard to Parliament’s intentions and the objects of the Act, oppressive, unreasonable or unjust.[13]

1. As the Union points out the proposed changes to the way the National Secretary comes to hold office represent a reversion to arrangements that existed for a decade, until alterations putting the current procedure in place were certified by the Commission’s General Manager in 2022.[14]

1. There is no evidence the earlier arrangements were found to impose conditions, obligations or restrictions that were, having regard to Parliament’s intentions and the objects of the Act, oppressive, unreasonable or unjust. Nothing before me suggests circumstances have changed so much that I should conclude previously unproblematic arrangements have become oppressive, unreasonable or unjust in the meantime.  

1. On the other hand, the alterations before the General Manager were objected to by the General Secretary of the Union’s (then) Mining and Energy Division[15] on grounds among others:

“the proposed alterations would render the rules contrary to s.142(1)(c) of the RO Act on the basis that the rules if altered would impose on members of the organisation conditions, obligations or restrictions that are oppressive, unreasonable or unjust.”[16]

1. Although the General Manager was not ultimately persuaded by the General Secretary’s arguments, it is noteworthy that vehement objection was made to the rules as they currently stand but not to the situation which stood previously and will again pertain under the proposed alterations.

1. In my view the alterations associated with the manner in which the National Secretary comes to hold office are not contrary to s.142(1)(c) of the Act.

1. The office of International President is currently vacant.[17] It was vacant when the current alterations were transacted.[18] Rule 16 allows the Union’s National Executive to abolish the office of International President, should it become vacant at any time.[19] In circumstances where:

   ·   the National Executive have simply exercised a power in circumstances specifically contemplated under the rules; and

   ·   given the rationale for doing so set out in paragraph [18] above,

   the proposed alterations which abolish the office of International President do not engage s.142(1)(c) of the Act.

1. The office of Vice President proposed to be abolished was created to ensure each Division of the Union was guaranteed one Vice President. It harks back to a time when the Union had four Divisions. Given the Mining and Energy Division subsequently withdrew from the Union,[20] abolishing the office seems to me a rational response to the changes to the Union’s Divisional structure. I also note the Union’s explanation that the continuing reference to four Vice Presidents appears to be the result of a slip when the post Mining and Energy Division rules were being settled. Abolishing one of the four offices of Vice President does not in the circumstances engage s.142(1)(c) of the Act.

1. There is nothing in the alterations to suggest they fail to comply with, or are contrary to, any other provision of the Act or otherwise contrary to law. The same is true of the Fair Work Act 2009 (FW Act), modern awards and enterprise agreements.

1. Two further matters require attention.

1. First, the proposed alterations are intended to apply immediately upon certification unless otherwise indicated within the text of the rule change.[21] As the Full Bench in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (128V) v Registered Organisations Commission (ROC)[22] noted:

“Section 159(3) provides that a rules alteration takes effect on the day of certification. However that only means that a rules alteration takes effect according to its terms on that day, not necessarily that it has an operational effect from that day.”[23]

1. One proposed change is intended to take effect on the date of certification, but to have operational effect on a different day. The text of the proposed alteration to Rule 16(i) indicates the change is intended to apply on and from 1 July 2024. As a consequence, that alteration would—if certified—operate retrospectively.

1. There is a rebuttable presumption that a rule alteration associated with the incidents of an office cannot operate retrospectively. As Joske J stated in Beeson v Blayney:[24]

“…[T]here is a prima facie principle of construction that unless it appears expressly or by implication in rules as amended that they are intended in their amended form to apply to past matters or events, including matters commenced before but not completed at the time of the amendment, the amendments do not apply to the past or uncompleted matters.”[25]

1. However, this presumption can be rebutted where:

   ·     there is an express or implied intention to apply the alteration to current terms of office;[26] and

   ·     the rule does not have harsh effects or interfere with vested interests or accrued rights.[27]

1. The intended operation of the alteration to Rule 16(i) does not commence after the current term of office expires. It is, by its terms, expressly intended to apply to the current term of office. The proposed alteration does not interfere with accrued rights. In this instance, any accrued rights would be vested only in the holder of the office of National Secretary. The Union advised that the office is currently vacant, because the National Secretary resigned.[28] Therefore, the question of interference with accrued rights does not arise. There is nothing before me to indicate the existence of vested interests which may be interfered with. Nor can I discern any harsh effects flowing from the alteration to Rule 16(i). In the circumstances, the presumption against retrospective operation of that alteration has been rebutted and the alteration will operate in accordance with its terms.

1. Secondly, I note recent press reports about the Manufacturing Division’s potential withdrawal from the Union and the passage of the Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamation) Bill 2024 (Cth). Given the stated rationale for the current alterations further changes of a similar nature might be proposed in future. However, the possibility that changed circumstances might occasion further rule alterations does not provide a reason to refuse certification of the alterations currently before me.

1. In my opinion, the alterations comply with and are not contrary to the Act, the FW Act, modern awards and enterprise agreements, are not otherwise contrary to law and were made under the rules of the organisation. I certify accordingly under subsection 159(1) of the Act.

DELEGATE OF THE GENERAL MANAGER

[1] See the alterations to Rule 5 and the deletion of Rules 22A, 24B, 24C, 24D, 50B, 50C and 50D.

[2] See the alterations to Rule 22. Also see s.141(1)(b)(iia) of the Act.

[3] See the alterations to Rules 16 & 22.

[4] See the alterations to Rules 14, 16, 22, 23, 26A, 30 & 31.

[5] See the alterations to Rule 14.

[6] See Rule 25. Also see National Secretary Chris Cain’s 28 May 2024 declaration in this matter at paragraph 2.

[7] See Attachment B to National Secretary Chris Cain’s 28 May 2024 declaration in this matter.

[8] Ibid at page 13.

[9] Ibid at page 13.

[10] Ibid at page 13.

[11] Ibid at pages 13 – 14.

[12] Imlach v Daley (1985) 7 FCR 457 at 462.

[13] Paragraph 142(1)(c) of the Act provides that rules:

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

[14] R2021/98; General Manger Furlong; [2022] FWCG 25; 17 March 2021.

[15] Also see R2020/201 which proposed alterations which were, with one minor technical exception, identical. The General Secretary objected to those alterations too. The alterations in R2021/201 were ultimately withdrawn by the Union before the alterations in R2021/98 were lodged.

[16] [2022] FWCG 25 at [62].

[17] See AR2024/2 at numbered pages 12, 14 & 16.

[18] National Secretary Chris Cain’s declaration in AR2024/2 was made on 28 March 2024. The current alterations were made on 27 May 2024. No notification of changes to the list of persons holding the office of International President were notified to the Commission in AR2024/2 in the intervening period.

[19] See the third, unnumbered paragraph of current Rule 16(i).

[20] See the Federal Court of Australia’s 1 December 2023 orders in NSD1120/2023.

[21] See National Secretary Chris Cain’s 28 May 2024 declaration in this matter at paragraph 12. Also see s.159(3) of the Act.

[22] Hatcher VP, Binet DP, Cabridge C; [2018] FWCFB 16; 3 January 2018.

[23] Ibid at [24].

[24] Beeson v Blayney and Others (1966) 8 FLR 292; Spicer CJ, Joske J, Eggleston JJ.

[25] Ibid per Joske J at 294.

[26] Re Mellor; Re Federated Liquor and Allied Industries Employees Union of Australia (1987) 17 FLR 120; 18 IR 350 per Gray J at 353.

[27] Ibid.

[28] See 8 July email from Director of Legal and Industrial, Lucy Weber.

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