Construction, Forestry, Maritime, Mining and Energy Union

[2019] FWCD 2234

[2019] FWCD 2234

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

(R2018/298)

MURRAY FURLONG MELBOURNE, 15 May 2019

Alteration of other rules of organisation.

1. On 3 December 2018, the Mining and Energy Division (the Division) of the Construction, Forestry, Maritime, Mining and Energy Union lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to the rules of the Division.

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

·  2 – Definitions;

·  4 – Objects;

·  5 – Means;

·  6 – Membership;

·  8 – Central Council;

·  10 – Central Executive;

·  11 – Finance and Property;

·  12 – District Branches;

·  13 – Amalgamation;

·  15 – New Rules and Alteration of Rules;

·  16 – Dissolution of the Division;

·  17 – Ballot;

·  19 – Election of Vice Presidents; and

·  20 – Retired Members.

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

New sub-rule 8(iv)(f) and alterations to rule 15

1. The alterations to rule 8 include the insertion of a new sub-rule 8(iv)(f) which concerns the endorsement of resolutions of the Central Council by the membership of the Division organised in Lodges. More specifically, the new sub-rule provides that such endorsement is required with respect to the following types of resolutions:

·  a resolution to change the Divisional Rules unless endorsement is not required in accordance with rule 15. This must be considered together with the alterations to rule 15 set out in the notice of particulars which provide that proposed alterations to the Divisional Rules do not require endorsement by the membership in circumstances where either:

·  the resolution of the Central Council to make the alterations was approved unanimously by the members of the Central Council who voted on it; or

·  the alterations are required to be made by the operation of relevant legislation.

·  a resolution that the Central Council determines should be submitted for endorsement;

·  a resolution that the Central Council determines should be submitted for endorsement as “binding policy” of the Division. This aspect of the new sub-rule is consistent with existing sub-rule 8(iv)(c) which provides that a resolution of the Central Council shall become the “binding policy” of the Division if an aggregate majority of the members of the Division attending and voting in Lodge meetings vote in favour of the resolution. The alteration in this sense clarifies that the necessary determination of whether a particular decision or resolution pertains to a matter of “binding policy” of the Division is to be made by the Central Council. Regarding the content of the term “binding policy”, the Division has advised that it includes the adoption of Division-wide policies on matters such as health and safety and demarcation agreements and alliances with other trade unions; and

·  a resolution to make, impose, order and enforce any levy on the members of the Division or a District Branch. This aspect of the new sub-rule is consistent with existing sub-rule 8(vi)(c).

1. Given the above, it is apparent that the proposed new sub-rule 8(iv)(f) largely reflects the existing Divisional Rules and practices of the Division with the exception of resolutions of the Central Council to alter the Divisional Rules.

1. Existing rule 15(iii) provides that alterations to the Divisional Rules shall be submitted for the approval of the membership in same manner as other Central Council resolutions. As noted above, the alterations to rule 15 provide that a resolution to alter the Divisional Rules is not required in circumstances where the resolution was unanimously approved by the members of the Central Council who submitted a vote or the alterations are necessary in order to comply with legislative requirements.

1. Considering the effect new sub-rule 8(iv)(f) and the alterations to rule 15 in the context of the Divisional Rules as a whole, I am satisfied that they are consistent with the Fair Work (Registered Organisations) Act 2009 (the Act) including ss. 141(1)(b)(iv) and 142(1)(c).

Further alterations to rule 8

1. Other than minor changes that clarify or correct its provisions, the further alterations to rule 8 include:

·  An alteration to sub-rule 8(i)(c)(1) which provides that if a District Branch has no full-time official, the most senior officer of the District Branch shall be its representative on the Central Council;

·  An alteration to sub-rule 8(iv)(b) which provides a mechanism for the General Secretary to extend the period in which Lodge returns may be provided; and

·  An alteration to sub-rule 8(iv)(c) which clarifies the threshold of an aggregate national majority of the members of the Division for the purposes of endorsement.

Alterations to rules 4 and 5

1. The alterations to rule 4 provide additional objects which the Division may pursue pursuant to the Divisional Rules. I am satisfied that those additional objects are not contrary to any specific provision of, or the general scheme or purpose of, the Act or any other relevant legislation. The additional objects also appear to be consistent with the overarching rules of the Construction, Forestry, Maritime, Mining and Energy Union.

1. The alteration to rule 5 explicitly provides that financial decisions may be taken by the Division in pursuit of such objects.

Alterations to rule 6

1. Beyond minor changes of a corrective nature or that provide clarification, the alterations to rule 6 include:

·  a new sub-rule 6(iv) which provides that the rules of a District Branch may allow members who are on unpaid parental leave to be treated in the same manner as members who are unemployed and/or on sick leave; and

·  a new sub-rule 6(vi) which provides that a member who has ceased to be financial shall be removed from the relevant membership register. This alteration is consistent with s. 172 of the Act.

Alterations to rule 11

1. The primary effects of the alterations to rule 11 include:

·  new sub-rules (11)(iii)(d) and (e) which provide a mechanism for the making of a loan, grant or donation not exceeding $3,000 and mirror the relevant provisions of s. 149 of the Act;

·  a new sub-rule 11(vii)(c) which provides that for the purposes of presenting the full financial report of the Division to the membership, a general meeting of members can include a series of meetings held at different locations. Such a provision is permitted and contemplated by s. 266(2) of the Act;

·  new sub-rules 11(vii)(d) and (e) whose evident purpose is to allow the Division to avail itself of the flexibility with respect to the presentation of the full financial report to the committee of management of the Division as an alternative to presenting it to the membership as permitted by s. 266(3) of the Act.

Alterations to rule 17

1. In addition to alterations of a minor or technical nature, the alterations to rule 17 will provide for the appointment of one or more Assistant Local Returning Officers for the conduct of an election at each Lodge or locality. In accordance with s. 143(1)(b) of the Act, rule 17, as altered, will provide that such an Assistant Local Returning Officer shall not hold any office in, or be an employee of, the Construction, Forestry, Maritime, Mining and Energy Union, a Division, a District Branch or a Lodge.

Alterations to rules 2, 10, 12, 13, 16, 19 and 20

1. The alterations to the further rules set out in the notice of particulars are of a minor nature which seek to correct, clarify or make grammatical changes to the existing provisions of the Divisional Rules

1. In his declaration lodged with the notice of particulars and dated 3 December 2018, Mr Grahame Kelly, General Secretary of 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 subject to any such proposed amendments being brought to the attention of the Division. On 1 April 2019, the Division gave consent to the following corrections:

·   In proposed sub-rule 6(vi), the words “financial members” has been omitted and replaced with the words “financial member”;

·   In sub-rule 10(ii)(c), the word “in” immediately before the words “as soon as practicable following the end of the year to the Auditor” has been omitted;

·   In the second paragraph of sub-rule 8(vi)(c)(6), the word “Division” has been omitted and replaced with the words “District Branch”.

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

Printed by authority of the Commonwealth Government Printer

< PR706538>