Construction, Forestry, Maritime, Mining and Energy Union

[2020] FWCD 2353

[2020] FWCD 2353

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

(R2020/50)

MURRAY FURLONG MELBOURNE, 22 may 2020

Alteration of other rules of organisation.

1. On 24 April 2020, the Construction and General Division (the Division) of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations and to the rules of the Construction and General Division of the CFMMEU (the Divisional Rules).

1. The particulars set out alterations to the following Divisional Rules:

·   37 – Officers;

·   38 – Divisional Branch Elections;

·   40 – Supreme Governing Body – Divisional Branch Council;

·   42 - Divisional Branch Management Committee;

·   43 - Duties of Divisional Branch President;

·   44 - Divisional Branch Vice President;

·   47 - Duties of Divisional Branch Assistant Secretary;

·   48F - Divisional Branch Senior Vice-Presidents/Divisional Branch Vice-Presidents (Queensland); and

·   69 – Special Rules.

1. The alterations pertain to the South Australian Divisional Branch and the Queensland Northern Territory Divisional Branch.

Alterations affecting the Queensland Northern Territory Divisional Branch

1. The alterations affecting the Queensland Northern Territory Divisional Branch have the following effects:

·   Changing the status of the office of Divisional Branch President from full time-time to honorary for the purposes of the upcoming elections to be held this year. The Divisional Branch Council may determine that this office will be full-time or honorary prior to the opening of nominations with respect to future elections (alterations to rules 37, 40 and 43);

·   Changing the manner in which the Divisional Branch Vice-Presidents are elected from a direct voting system to a collegiate electoral system (alterations to rule 40);

·   Amending the relevant geographical areas of the “North Queensland” and “South East Queensland” in terms of relevant Local Authority areas (alterations to rule 40); and

· Clarifying that the Divisional Branch Senior Vice-Presidents are members of the Divisional Branch Executive (alterations to rule 42).

1. Further, new sub-rules 40(2)(ii)(K) and (L) provide that the Divisional Branch Council may determine that the status of the offices of Divisional Branch President and Divisional Branch Assistant Secretary may revert to an honorary office with the consent of the incumbent or, upon a casual vacancy arising, resolve to fill the office on a full-time or honorary basis.

1. The change in the status of an office from full-time to honorary fundamentally alters the nature of that office and the capacity in which it is held.[1] To the extent that such a change effectively constitutes the establishment of a new “office”, an issue may arise with respect to the requirements of subsection 143(1) of the Fair Work (Registered Organisations) Act 2009 (the Act) which specifies that the rules of an organisation must provide for the election of the holder of each office in the organisation. Authorities such as Bicknell v Amalgamated Engineering Union (1969) 15 FLR 215 and Re Airline Hostesses Association (1980) 37 ALR 110 indicate that the Act requires that the rules of an organisation must provide for the election of the “holder” of each office rather than requiring each “office” being subject to election. Section 146 of the Act also permits the rules of an organisation to provide for the filling of a casual vacancy other than by ordinary election in certain circumstances.

1. The effect of new sub-rules 40(2)(ii)(K) and (L), construed in the context of the Divisional Rules as a whole, is that the holders of the offices of Divisional Branch President and Divisional Branch Assistant Secretary will be elected even if the status of those offices changes from full-time to honorary. The Divisional Rules will also provide the holders of those offices may be appointed in certain circumstances in the event of a casual vacancy arising consistent with the Act.

1. The power vested in the Divisional Branch Council to potentially change the status of the above offices from full-time to honorary during the term of those holding them may also raise an issue regarding whether the Divisional Rules may act in an oppressive or unreasonable manner for the purposes of subsection 142(1)(c) of the Act. However, this goes to how the powers granted by new sub-rules 40(2)(ii)(K) and (L) may potentially be used rather than something inherent in their terms. A rule of an organisation does not necessarily contravene the Act merely because it is capable of being used in an unreasonable or oppressive way.[2] Further, the test of whether the rules of an organisation operate in an oppressive or unreasonable manner is not be made by reference to their effect on a single member or officer but by their effect on a significant part of the membership.[3]

1. Significantly, new sub-rules 40(2)(ii)(K) and (L) provide that the change in the status of the offices of Divisional Branch President or Divisional Branch Assistant Secretary is contingent upon the consent of the incumbent of those offices.

1. For the above reasons, I am satisfied that new sub-rules 40(2)(ii)(K) and (L) are consistent with the Act.

Alterations affecting the South Australian Divisional Branch

1. The alterations to sub-rule 38(a)(iA) of the Divisional Rules affect the conditions for being eligible to nominate for office within the South Australian Divisional Branch.

1. The Divisional Rules provide that a member of a Divisional Branch may nominate for office within the relevant Divisional Branch if he or she satisfies the qualifications set out in sub-rule 38(a)(i). Those qualifications include being:

A.                  a financial member of the relevant Divisional Branch at the time nominations are called;
B.                   having continuous financial membership of the Divisional Branch for various periods            of time of up to three years; and
C.                   being employed in a relevant trade or calling within the geographical area applicable to            the Divisional Branch for a prescribed period of time or being an officer or employee       of the Divisional Branch (or in a state registered counterpart association).

1. Regarding the South Australian Divisional Branch, the qualification set out at point B above requiring a three-year period of continuous financial membership of the relevant Divisional Branch in order to be eligible to nominate for particular offices is reduced to  1 years’ continuous financial membership for the purposes of the scheduled elections to be held this year. This particularity is a result of previous alterations to sub-rule 38(a)(iA) certified on 19 November 2018.[4]

1. The alterations in the present matter further affect the South Australian Divisional Branch particularly by:

· Modifying the qualification set out at point B above by providing that the requirement of 1 years’ continuous financial membership may be of any, or more than one, Divisional Branch rather than continuous financial membership of the South Australian Divisional Branch specifically; and

· Specifying that for the purposes of the qualification set out at point C above, a person will be eligible if they have been engaged as an officer or as employee of any Divisional Branch (or in any state registered counterpart association) including, but not limited to, the South Australian Divisional Branch.

1. The Act stipulates that the rules of an organisation must provide that all financial members (or all financial members in an appropriate branch, section, class or other division) are eligible to vote in a direct voting system.[5] However, the Act does not specifically address the issue of who may nominate for office or the circumstances in which a nomination may be made.

1. As noted above, subsection 142(1)(c) of the Act sets out a general requirement that the rules of an organisation must not impose on members conditions or restrictions that are oppressive, unreasonable or unjust. In applying the predecessor to this provision, the Full Court of the Federal Court in Bramich v TWU (2000) 97 FCR 204 expressed the following principle:

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 or quality of their participation in the democratic control, or the affairs, of the organisation.[6]

1. However, in this context, it is important to note that a rule of an organisation which discriminates against certain members in the sense that members in different circumstances are treated differently, is not necessarily unreasonable or unjust for the purposes of s. 142(1)(c) of the Act.[7]

1. The alterations to sub-rule 38(a)(iA) discriminate, to some degree, against the members and officers attached to the South Australian Divisional Branch in the extent to which they can qualify for being eligible to nominate for offices within other Divisional Branches. In other words, the former members and officers of those other Divisional Branches who become financial members of the South Australian Divisional Branch will find it much easier to nominate for office than former members and officers of the South Australian Divisional Branch who become members of another Divisional Branch.

1. On the other hand, the Divisional Rules will continue to provide for the election of offices within the South Australian Divisional Branch by the membership of that branch and the alterations in the present matter will provide a potentially larger pool of potential candidates for office.

1. In my view, the alterations to sub-rule 38(a)(iA) do not significantly discriminate or differentiate between the members of the South Australian Divisional Branch and the other Divisional Branches or impose a condition or restriction that is oppressive,  unreasonable or unjust for the purposes of subsection 142(1)(c) of the Act. If the membership of the South Australian Divisional Branch choose to elect a candidate who becomes eligible to nominate for office as a result of the certification of the alterations, then such a result would be consistent with the objects of ensuring the democratic functioning and control of organisations and the participation by members in the affairs of the organisation set out in subsection 5(3) of the Act.

1. On 12, May 2020,  the Division 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:

· The bracket at the conclusion of sub-rule 38(a)(iA)(ii) immediately after the words “South Australian Divisional Branch” has been omitted;

· The words “by virtue” have been omitted and the word “and” has been inserted immediately after the words “National Rule 2(A)(b)” in sub-rule 40(2)(E); and

· The word “and” has been added immediately after the words “New South Wales Divisional Branch” in sub-rule 43(b)(ii).

1. In my opinion, the alterations comply with and are not contrary to the Fair Work (Registered Organisations) Act 2009, 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.

DELEGATE OF THE GENERAL MANAGER

<PR719129>

[1] Ludwig v Copeland (1994) 53 IR 114.

[2] Allshorn v Stapleton (1984) 4 FCR 236.

[3] Roughan v The Australasian Meat Industry Employees Union (1992) 43 IR 193.

[4] Construction, Forestry, Maritime, Mining and Energy Union [2018] FWCD 7005.

[5] See s. 143(1) and the definition of “direct voting system” in s. 6.

[6] Bramich v TWU (2000) 97 FCR 204, 214 (per curiam).

[7] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Gray (2012) 207 FCR 548, 557 (Keane CJ and Buchanan J).

Printed by authority of the Commonwealth Government Printer