Construction, Forestry, Maritime, Mining and Energy Union
[2023] FWCD 17
•14 SEPTEMBER 2023
| [2023] FWCD 17 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Construction, Forestry, Maritime, Mining and Energy Union
(R2023/57)
| PATRICK COYLE | ADELAIDE, 14 SEPTEMBER 2023 |
Alteration of other rules of organisation.
On 26 June 2023 the Construction, Forestry, Maritime, Mining and Energy Union’s Construction and General Division (the Division) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules (Divisional Rules). Further material in support of the alterations were lodged on 18 August 2023, 21 August 2023, 4 September 2023 and 11 September 2023.
The Division seeks certification of the alterations under s.159 of the Fair Work (Registered Organisations) Act 2009 (the Act).
The particulars set out alterations to Divisional Rules 4, 6, 8, 9, 18, 28, 29, 30, 34, 37, 38, 40, 42, 42A, 42B, 43, 44, 45, 46, 48A, 48B, 48C and 69. The particulars also insert new Schedule 1.
Were the alterations made under the rules of the organisation?
Alterations to the rules of registered organisations submitted for certification under s.159 of the Act cannot be certified unless, among other things, they were made under the rules of the organisation.[1]
On the information contained in the notice, the declaration and the material received on 18 August 2023, I am satisfied the alterations have been made under the rules of the organisation.[2]
The substance of the alterations
The alterations can be broadly grouped into four categories.
First, various proposed alterations remove redundant transitional provisions associated with previous alterations to the Divisional Rules.[3]
Secondly, several proposed alterations update outdated references to registered addresses of Divisional Branches, former industrial awards and forerunners of the Fair Work Commission.[4]
Thirdly, the proposed alterations temporarily merge the existing Victoria-Tasmania Divisional Branch and South Australia Divisional Branch.[5]
Finally, the proposed alterations insert notes into the Divisional Rules.[6] Those notes alert the reader to the fact that the Divisional Rule in question is affected by the operation of proposed Schedule 1. Proposed Schedule 1 of the Divisional Rules contains the provisions which effect the merger of the Victoria-Tasmania Divisional Branch and South Australian Divisional Branch and govern the proposed merged Divisional Branch’s operation.
There is nothing controversial about the first, second or final groups of alterations. They require no further comment.
However, temporarily merging the Victoria-Tasmania Divisional Branch with the South Australian Divisional Branch warrants further analysis and discussion.
The proposed temporary merger of the South Australian Divisional Branch and the Victoria-Tasmania Divisional Branch[7] will take effect on the later of:
· 2 January 2025; or
· the day results in the 2024 quadrennial Divisional election are declared.[8]
The merged Divisional Branch will be called “The Construction and General Division, Victoria-Tasmania-South Australia Divisional Branch” (the merged Divisional Branch).[9]
To effect the merger, the South Australia Divisional Branch will temporarily cease operations. The Victoria-Tasmania Divisional Branch will continue to operate, but it will be renamed and its structure and operations will be modified by the proposed alterations.
The South Australia Divisional Branch will be reestablished as a separate Divisional Branch with effect from the later of:
· 2 January 2029; or
· the day results in the 2028 quadrennial Divisional election are declared.[10]
To give effect to the merger, members attached to the South Australia Divisional Branch at the relevant time will join their Victorian and Tasmanian colleagues in the merged Divisional Branch.[11] Financial status and periods of membership with the existing branches will be recognised by the merged Divisional Branch.[12] Persons residing or employed in Victoria, Tasmania or South Australia who subsequently apply for membership shall become members of the merged Divisional Branch.[13]
Various consequential changes are made to the Divisional Rules to reflect the fact that the South Australia Divisional Branch will temporarily cease operating.[14] These alterations:
· delete existing references to offices and collective bodies in South Australia; and
· alter the composition of collective bodies and the list of offices in the existing Victoria-Tasmania Branch,
to reflect the transformation of the latter into the merged Divisional Branch.
With the potential exception of s.142(1)(c) of the Act, the alterations which establish and govern the affairs of the merged Divisional Branch comply with and are not contrary to any provision of the Act. Further, they comply with and are not contrary to the Fair Work Act 2009 (FW Act), modern awards and enterprise agreements and are not otherwise contrary to law.
Are the alterations which establish and govern the affairs of the merged Divisional Branch contrary to s.142(1)(c) of the Act?
Section 142(1)(c) of the Act states:
“(1) The rules of an organisation:
…
(c) 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;”
The relevant Parliamentary intentions and objects of the Act referred to in s.142(1)(c) are as follows:
“(1) It is Parliament’s intention in enacting this Act to enhance relations within workplaces between federal system employers and federal system employees and to reduce the adverse effects of industrial disputation.
(2) Parliament considers that those relations will be enhanced and those adverse effects will be reduced, if associations of employers and employees are required to meet the standards set out in this Act in order to gain the rights and privileges accorded to associations under this Act and the Fair Work Act.
(3) The standards set out in this Act:
(a) ensure that employer and employee organisations registered under this Act are representative of and accountable to their members, and are able to operate effectively; and
(b) encourage members to participate in the affairs of organisations to which they belong; and
(c) encourage the efficient management of organisations and high standards of accountability of organisations to their members; and
(d) provide for the democratic functioning and control of organisations; …”
The alterations which give effect to the merged Divisional Branch and govern its operation are similar to earlier alterations to the Divisional Rules which were approved by Delegate Carruthers (albeit more than a decade ago).[15] Those earlier alterations effected the merger of the Victorian Building Unions Divisional Branch and the Tasmanian Divisional Branch. Unlike the present alterations which propose to establish the merged Divisional Branch, the arrangements considered by Delegate Carruthers were not expressly temporary. Instead, that merger was prima facie ongoing, subject to a review by the Divisional Executive within three years of the declaration of the ballot for the Divisional Branch elections in 2012.[16] Nothing in Delegate Carruthers’ decision suggests she thought that s.142(1)(c) was engaged by the alterations before her. I note that decisions of the General Manager or other Delegates made under s.159 of the Act and its legislative predecessors are not determinative of the matter before me. However, I consider them capable of being persuasive.
The objects of the Act: the standards set out in s.5(3)
The Division lodged explanatory material and submissions in support of the alterations. Although it is not necessary to reproduce that material or those submissions in their totality, I have carefully considered and taken them into account.
Among other things the Division submitted:
“In the present case, the members of the C&G Division wish to temporarily change the divisional branch structure to provide for a single divisional branch covering members residing in South Australia, Tasmania, and Victoria. There is nothing in the RO Act that, on its face, prohibits such a structure.”[17]
I accept this submission.
The Division also submitted:
“The proposed alterations serve the best interests of the members of the South Australia Divisional Branch by providing a temporary period within which the C&G Division can build within the South Australian membership the skills, knowledge, and expertise necessary for South Australia to operate as an autonomous Divisional Branch in the future. The South Australia Divisional Branch is in a phase of development, in which it lacks some of the skills, knowledge and expertise necessary to ensure that the Branch achieves the objects of the Division. The purpose of the temporary amalgamation, which is being entered into at the request of the South Australia Branch, is to provide members in South Australia with access to organisational support for the purpose of building capacity within the South Australia membership.”[18] [my emphasis]
There is nothing before me that causes me to question either that the South Australia Branch requested the temporary amalgamation or its stated purpose for the merger. It follows then that I accept the intention behind the temporary merger is to provide members in South Australia with access to organisational support for the purpose of building capacity within the South Australia membership, so the South Australian membership will have the skills, knowledge, and expertise necessary to operate as an autonomous Divisional Branch in the future.
This is directly relevant both to the Division’s ability to operate effectively and ultimately to the South Australian Divisional Branch’s ability to operate effectively in the future, consistent with s.5(3)(a) of the Act.
Arguably, the alterations also encourage efficient management of the Division and in time the South Australian Division Branch per s.5(3)(c). Conversely, there is nothing in the alterations that would discourage efficient management of the Division or, ultimately, the South Australian Divisional Branch.
In relation to the standards intended to ensure organisations are representative of their members,[19] encourage members to participate in the affairs of organisations to which they belong[20] and provide for the democratic functioning and control of organisations.[21] I note the following submissions of the Division:
“[T]he temporary amalgamation is being entered into at the request of, and with the consent of, the South Australia Divisional Branch… As the proposed alterations are by consent, they reflect the democratic will of the members of the South Australia Divisional Branch, expressed through their elected representatives.”[22]
The proposed alterations:
· allow the number of South Australian Delegates to the Division’s supreme governing body to be reckoned separately from the rest of the Divisional Branch;[23]
· reserve a number of Divisional Branch Office Bearer offices for persons from South Australia;[24]
· reserve a number of Divisional Branch Council offices for persons from South Australia;[25]
· reserve a number of Divisional Branch Committee of Management offices for persons from South Australia;[26]
· create a South Australian Sub-Branch Committee which has the power to make recommendations to the Divisional Branch Council and Divisional Branch Management Committee in respect of the administration, or matters affecting the interests of, the Divisional Branch in the State of South Australia only;[27] and
· allow the Victoria-Tasmania-South Australia Divisional Branch Secretary to delegate to the Secretary of the South Australia Sub-Branch Management Committee, some or all of Divisional Branch Secretary’s duties in connection with members of the Division residing or working exclusively in South Australia.[28]
In relation to the creation of a South Australian Sub-Branch[29] the Division submits:
“This formal sub-branch structure will provide important ongoing involvement in the affairs of the amalgamated branch by persons elected by and from South Australia, and facilitate the development of skill, knowledge and experience of members residing within South Australia as part of the overall implementation of the purpose of the temporary amalgamation.”
The alterations provide significant avenues for member participation and for the democratic functioning and control of the Division. When regard is had to the standards intended to ensure organisations:
· are representative of their members;
· encourage members to participate in the affairs of organisations to which they belong; and
· provide for the democratic functioning and control of organisations,
the proposed alterations do not, in my view, impose conditions, obligations or restrictions that are oppressive, unreasonable or unjust.
Turning to the accountability standards set out in ss.5(3)(a) and (c) of the Act, there is nothing about the alterations that bring those matters into play. The substance of the Divisional Rules that render the Division and the Divisional Branches accountable to their members remain largely unchanged, other than to the expanded member cohort attached to the proposed merged Divisional Branch.[30] This factor weighs neutrally in considering whether s.142(1)(c) of the Act is engaged in connection with the standards set out in s.5(3).
Although the proposed alterations primarily affect the South Australian members of the Division, the language of ss.5(3) and 142(1)(c) of the Act require me also to consider the alterations in the context of:
· the members of the union;
· members of the union attached to the Division;
· members of the union attached to the Victoria-Tasmania Divisional Branch; and
· applicants for membership.
The proposed alterations do not impose conditions, obligations or restrictions on members of the union who are not attached to the Division.
Any conditions, obligations or restrictions imposed on members of the union attached to a Divisional Branch other than the Victoria-Tasmania Divisional Branch or the South Australia Branch would be remote, incidental and of insufficient significance render the alterations contrary to s.142(1)(c).
As noted above, the Victoria-Tasmania Divisional Branch will continue to operate, but it will be renamed and its structure and operations will be modified to the extent set out in the proposed alterations. The Division submits:
· the underlying branch structure remains unchanged, other than changes to accommodate the South Australia Sub-Branch Committee and the new positions on the collective bodies necessary to represent the incoming South Australian members: “This ensures that there is continuity among the branch structures and that the membership of the amalgamated division continue to have the same opportunities for participation in the democratic functioning of the Division;”[31]
· existing Victoria-Tasmania Divisional Branch offices are retained;[32]
· continuity of membership and the financial status of Victorian and Tasmanian members is maintained: “This ensures that no member of the existing Victoria-Tasmania Divisional Branch suffers any reduction in the rights or obligations attaching to their membership by reason of continuity (such as, for example, the right to run for office, or to qualify for life membership);”[33] and
· the operation of the existing Tasmania Sub-Branch is unaffected: “This ensures that the members in Tasmania do not suffer a reduction in their ability to participate in the affairs of the Division.”[34]
I accept these submissions.
The proposed alterations do not impose conditions, obligations or restrictions on members of the union who are currently attached to the Victoria-Tasmania Divisional Branch.
The proposed alterations do not impose conditions, obligations or restrictions on applicants for membership.
Parliament’s intention: enhancing relations within workplaces between federal system employers and federal system employees and reducing the adverse effects of industrial disputation
As noted above the Parliamentary intentions in enacting the Act are:
· to enhance to relations within workplaces between federal system employers and federal system employees; and
· to reduce the adverse effects of industrial disputation.
I am aware of public commentary about alleged recent developments in the building industry in South Australia. I am also aware that Victoria-Tasmania Divisional Branch office holders also hold senior offices in the South Australian Divisional Branch.[35]
In broad terms, I understand the public commentary has suggested the incidence of industrial disputation[36] in the South Australian Building industry has risen in recent times. Media reporting has suggested that the increase in industrial disputation is bringing adverse effects and that relations between federal system employers and federal system employees in South Australian building industry workplaces are deteriorating. It is a matter of public record that much of the commentary attempts to link the asserted increase in industrial disputation with the presence in South Australia of the Victoria-Tasmania Branch officers who also hold office in the South Australia Branch.
My role under s.159 of the Act is to assess the alterations lodged for certification against the criteria laid down by the Act. It is not my role—and it would be contrary to the principles of natural justice—to a carry out a broader examination of what might be considered appropriate (or otherwise) having regard to unspecified factors or public commentary.
It is not the role of Courts and Tribunals to substitute their views about the content of the rules of organisations registered under the Act for the views of the organisations themselves. It has been held that:
“the constraints and restrictions imposed, by positive and negative requirements of the Act and regulations, upon the freedom of the members of an organisation to select, for themselves, the rules which they consider appropriate for their particular organisation, are real and significant; it cannot be too strongly stressed that, subject to those constraints and restrictions, the content of the rules of a registered organisation is primarily a matter for the members… subject to the provisions of the Act, an organisation is free to determine its own internal structures; it is free to determine its own policies; it is free to pursue objects which it considers to be desirable; and it is free to decide what it considers to be in the best interests of its members or potential members…”[37]
This principle is not disturbed because the substance of the proposed alterations involves changes to the branch or divisional structure of an organisation:
“ordinarily the internal structure of an organisation is a matter for the members of the organisation acting, democratically, through their elected representatives;”[38]
“the mere fact that pre-existing structures or scheme have been altered or modified says nothing about the character of the rules arising from the alterations;”[39] and
“a rule is not “oppressive, unreasonable or unjust” because there might be another option that might be seen by some as “preferable, desirable or ideal.”[40]
The Parliamentary intentions set out above are a lens through which the impact of the rules on members and applicants for membership of the organisation is to be viewed.[41] Even if it were appropriate for me to give weight concerns raised in public fora, those concerns do not give rise to oppressive, unreasonable or unjust conditions, obligations or restrictions impacting upon the members and applicants for membership of the organisation.
In the circumstances, the proposed alterations which effect the merger of the Victoria-Tasmania Divisional Branch and South Australian Divisional Branch and govern the merged Divisional Branch’s operation comply with and are not contrary to s.142(1)(c) of the Act.
Conclusion
Once particulars of alterations to rules of a registered organisation have been lodged with the Commission,[42] the General Manager—or as is presently the case his Delegate—must form opinions about whether 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
· have been made under the rules of the organisation.[43]
If the requisite opinions are formed, the General Manager or Delegate must certify the alterations.[44]
The Act confers no discretion on me to withhold certification of alterations if I form the requisite opinions under s.159(1).
Thereafter, an alteration takes effect on the day it is certified.[45]
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.
Correction of typographical, clerical or formal error
On 4 and 11 September 2023 Zach Smith, National Secretary of the Division, gave consent under subsection 159(2) of the Act for me 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 Item 24 of proposed Schedule 1, the reference to Divisional Rule 42B(ii) has been amended to refer to Divisional Rule 42B(b);
· in Item 27 of proposed Schedule 1, the number of the Divisional Rule has been changed from 42A to 42B; and
· in proposed Schedule 1 the first of the two Items numbered 30 has been renumbered 27A.
DELEGATE OF THE GENERAL MANAGER
[1] See s.159(1)(c) of the Act.
[2] The proposed alterations were transacted by Divisional Executive – See Divisional National Secretary Zach Smith’s 26 June 2023 declaration at paragraph 2.
The Divisional Executive is the body empowered to alter the Divisional Rules – see Divisional Rule 41.
In this instance “[t]he proposed changes [were] …unanimously endorsed by the Divisional Executive of the C&G Division, the Victoria-Tasmania Divisional Branch, and, critically, the South Australia Divisional Branch.” – at paragraph 7 of the submission accompanying the 26 June 2023 declaration; See also paragraph [30] above.
[3] The proposed alterations to Divisional Rules 4(viii),18(b)(i),18(b)(ii), 29, 37(v)(a), 40(2)(v)(a), 42(a)(iv), 42A(i) and 42B all delete redundant provisions associated with the merger of the Victorian Building Unions Divisional Branch and the Tasmanian Divisional Branch on 5 July 2012 (see R2012/83; [2012] FWAD 4521). The merged branch referred to in those provisions is the current Victoria-Tasmania Divisional Branch.
The proposed alterations to Divisional Rule 40(2)(vi) delete redundant provisions associated with the previous integration of South Australian Divisional Branch and the Mining and Energy Division in the State of South Australia.
The proposed alterations to Divisional Rule 42(a)(vi) delete redundant provisions associated with an earlier composition of the South Australian Divisional Branch’s Committee of Management
[4] See the proposed alterations to Divisional Rules 6, 69(ii), 69(iii).
[5] See the proposed alterations to 38, new Schedule 1.
[6] See the proposed alterations to Divisional Rules 4, 8, 9, 18, 28, 29, 30, 34, 37, 38, 40, 42, 42A, 42B, 43, 44, 45, 46, 48A, 48B, 48C, 69.
[7] See proposed Item 12 of Schedule 1.
[8] Ibid.
[9] See Item 13 of proposed Schedule 1.
[10] Ibid. I note proposed Item 12 of Schedule 1 empowers to the Divisional Executive to determine otherwise.
[11] See Item 5 of proposed Schedule 1.
[12] Ibid.
[13] See Item 14 of proposed Schedule 1.
[14] See Items 18 – 20, 22 – 26, 32, 35 & 36 of proposed Schedule 1.
[15] See R2012/83; [2012] FWAD 4521; 5 July 2021; Delegate Carruthers.
[16] The stated intention of that review was to “[reestablish] separate Divisional Branches in the States of Victoria and Tasmania where, in the opinion of the Divisional Executive, the establishment of such separate Divisional Branches is in the interests of the members in those state (sic) and the Division as a whole.’ – see Item 3 of the alterations certified in R2012/83 which deleted then Divisional Rule 18(b) and inserted, among other things, Divisional Rule 18(b)(ii).
[17] See paragraph 37 of the submission that accompanied Mr Smith’s 26 June 2023 declaration.
[18] See paragraph 6 of the submission that accompanied Mr Smith’s 26 June 2023 declaration.
[19] See s.5(3)(a) of the Act.
[20] See s.5(3)(b) of the Act.
[21] See s.5(3)(d) of the Act.
[22] See paragraph 38(a) of the submission that accompanied Mr Smith’s 26 June 2023 declaration.
[23] See Item 18 of proposed Schedule 7
[24] See Item 18 of proposed Schedule 18.
[25] See Item 22 of proposed Schedule 22.
[26] See Item 24 of proposed Schedule 24.
[27] See Item 30 of proposed Schedule 30.
[28] See Item 33 of proposed Schedule 33
[29] This mirrors the Tasmanian arrangements put in place in the alterations certified by Delegate Carruthers in R2012/83.
[30] I note that appropriate measures are in place to account for and report in the funds currently under the custody and control of by the South Australia Branch – see Lucy Weber’s email of 21 August 2023.
[31] See paragraph 39 of the submission that accompanied Mr Smith’s 26 June 2023 declaration.
[32] Ibid.
[33] Ibid.
[34] Ibid.
[35] See the most recent annual return information lodged in the Commission by the Construction, Forestry, Maritime, Mining and Energy Union – AR 2023/2 refers.
[36] In the ordinary sense of that expression.
[37] Municipal Officers' Association of Australia v Lancaster (1981) 54 FLR 129 at 164-166; Deane J.
[38] Belan v National Union of Workers [2000] FCA 1828 at [108]; Moore J.
[39] Ibid.
[40] Re Patrick John Roughan v the Australasian Meat Industry Employees' Union [1992] FCA 327; (1992) 36 FCR 536; Wilcox J.
[41] See s.142(1)(c).
[42] Other than alterations to the organisation’s eligibility rules or its name – see s.158 & 158A of the Act.
[43] See s.159(1)(a) – (c) of the Act. I note that I have already expressed opinion about whether the alterations were made under the rules of the organisation – see paragraph [4] above.
[44] See s.159(1)(a) – (c) of the Act.
[45] See s.159(3) of the Act.
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