Construction, Forestry and Maritime Employees Union
[2024] FWCD 1034
•21 JUNE 2024
| [2024] FWCD 1034 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Construction, Forestry and Maritime Employees Union
(R2024/53)
| CHRIS ENRIGHT | MELBOURNE, 21 JUNE 2024 |
Alteration of other rules of organisation.
On 18 April 2024 the Construction and General Division (the Division) of 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. Further material in support of the alterations was lodged on 20 June 2024.
The Division seeks certification of the alterations under section 159 of the Fair Work (Registered Organisations) Act 2009 (the Act).
The particulars set out alterations to Rules 37, 40 and 42 and to Items 22, 26 and 27A of Schedule 1.
The alterations were transacted by the Divisional Executive.[1] The Divisional Executive comprises representatives from each of the Divisional Branches.[2] For the time being this includes the South Australia Branch.[3] On the information contained in the notice and declaration, I am satisfied the alterations have been made under the rules of the organisation.
The alterations to Rule 40 and Item 22 of Schedule 1 continue a process to restructure the Divisional Branch Council of the temporary Victoria-Tasmania-South Australia Divisional Branch (the Divisional Branch Council).
Taken as a package those alterations:
· reduce the size of the Divisional Branch Council, by removing members of the Tasmania and South Australia Sub-Branch Management Committees except the Secretaries and Presidents; and
· ensure members in South Australia are represented by their Secretary and President, when the merged branch commences operation, later this year or on 1 January 2025.[4]
The Divisional Branch Council’s restructure formed part of a broader package of Divisional rule changes transacted in late 2023. Those alterations were lodged in the Commission in December 2023 and given matter number R2023/140.
Alterations dealing with South Australia’s representation on the Divisional Branch Council were included in R2023/140. Those alterations were partially withdrawn following advice from Commission staff.[5] As a result of the partial withdrawal, the South Australian Sub-Branch Secretary and President are no longer South Australian representatives on the Divisional Branch Council.[6] That consequence was not intended when the alterations in R2023/140 were transacted. In part, the current alterations supersede the alterations withdrawn in the earlier matter.[7] The issue which led to the partial withdrawal of the previous alterations does not arise under the current alterations.
Under the proposed alterations, two members of the Division attached to the South Australia Sub-Branch will be elected to the Divisional Branch Council. They will also hold the positions of South Australia Sub-Branch Secretary and South Australia Sub-Branch President ex officio. Equivalent arrangements are in place in relation to the Tasmania Sub-Branch.[8]
As noted, the proposed alterations also remove the other members of the Tasmania Sub-Branch Management Committee and the South Australia Sub-Branch Management Committee from the Divisional Branch Council. Fair Work Commission staff discussed those alterations with the Division’s Director Legal and Industrial.
According to the Director:
“The removal of the balance of the Sub-Branch Management Committee members is also in keeping with the streamlining of the Council which occurred in the rule change to remove the balance of r 2(v)(a) after the first paragraph (approved in the decision in [2024] FWCG 1001). It also makes the Council body more proportionate to the respective memberships of the Victorian, Tasmanian and South Australia; otherwise those two relatively small sub-branches would be disproportionately represented in the Council.”[9]
I accept that explanation. In my view, the Division is entitled to aim for proportional representation of the Division’s members in Victoria, Tasmania and South Australia.
It is important to note that:
“a. the Committee of Management of the South Australian Divisional Branch are aware of the proposed changes in the application; and
b. the Committee of Management of the South Australian Divisional Branch support the proposed changes.”[10]
Also important is the Divisional Secretary’s statement that:
“Each of the alterations are intended to apply immediately upon certification, however – to be clear - no proposed alteration will interfere with the terms of current office holders.”[11]
In my view, this characterisation is correct.[12]
Finally, the alterations to Rules 37, 42 and Items 26 and 27A of Schedule 1 correct minor errors in the rules.
In my opinion, the alterations comply with and are not contrary to the Act, the Fair Work Act 2009, 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 Divisional Rule 16. Also see Divisional Secretary Zach Smith’s 17 April 2024 declaration at paragraphs 2 & 4.
[2] See the first three, unnumbered paragraphs of Divisional Rule 9 1.A.
[3] See Items 1, 2 & 4 of Schedule 1 of the Divisional rules and AR2024/2 at p.2 row 13 & pp. 67 – 69
[4] See Items 1 & 2 of Schedule 1 of the Divisional Rules.
[5] See Construction, Forestry and Maritime Employees Union; Delegate Enright; 8 April 2024 at [8] – [11].
[6] The current Divisional Rules do, anomalously, provide for representation of Suth Australin members of the remaining lay members of the Sub-Branch Management Committee, although the proposed alterations to Item 22 of Schedule 1 remove those representatives from the Divisional Branch Council.
[7] See Divisional Secretary Zach Smith’s 17 April 2024 declaration at paragraph 8.
[8] See Divisional Rule 42(a)(v).
[9] See Director of Legal and Industrial Relations Lucy Weber’s 5 June 2024 email.
[10] See Divisional Secretary Zach Smith’s 20 June 2024 email to the Commission.
[11]See Divisional Secretary Zach Smith’s 17 April 2024 declaration at paragraph 8.
[12] See s.159(3) of the Act and Items 1, 2 & 4 of Schedule 1 of the Divisional rules. The “date the rule changes are certified” referred to in Item 4 was 14 September 2023 (See Construction, Forestry, Maritime, Mining and Energy Union; Delegate Coyle; [2023] FWCD 17; 14 September 2023).
Printed by authority of the Commonwealth Government Printer
<PR775665>
As the Full Bench noted in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (128V) v Registered Organisations Commission (ROC) (Hatcher VP, Binet DP, Cabridge C; [2018] FWCFB 16; 3 January 2018 at [24]):
“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.”
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