Construction, Forestry, Maritime, Mining and Energy Union
[2019] FWCD 1388
•6 MARCH 2019
| [2019] FWCD 1388 |
| 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
(R2019/5)
| MURRAY FURLONG | MELBOURNE, 6 MARCH 2019 |
Alteration of other rules of organisation.
On 18 January 2019 the Northern Mining and NSW Energy District Branch (the District Branch) of the Mining and Energy 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 District Branch.
The particulars set out an alteration to sub-rule 7(iv) of the District Branch Rules. The effect of the alteration is to provide the District Secretary with the discretion to grant an extension of time for a Lodge Secretary to forward any decision of a Lodge on business to be submitted to the District Executive or Board of Management.
On the information contained in the notice, I am satisfied the alterations have been made under the rules of the organisation.
The alteration was made by resolution the District Branch Board of Management during its meeting of 14 November 2018. The Board of Management determined that the resolution to make the alteration should be subject to endorsement by District Delegates and the membership of the District Branch organised in the Lodges of the District Branch. The resolution was sent to the Lodges with a return date of 18 January 2019.
This process of endorsement by the members organised in Lodges is set out in rule 7(iv) of the District Branch Rules. Previously, the prevailing view was that any decision of the Board of Management to make alterations to the District Branch Rules pursuant to rule 12 required such endorsement in order to be effective. In alterations certified on 8 November 2017,[1] rule 12 was amended to specifically provide that the provisions of rule 7(iv) did not apply in the application of that rule.
Given this, the better view appears to be that the alteration was made by resolution of the Board of Management on 14 November 2018 and, thus, that the notice of particulars was not filed with the Commission within 35 days after it was made in accordance with regulation 126(1) of the Fair Work (Registered Organisations) Regulations 2009 (the Regulations). However, given that the resolution of the Board of Management was to approve the alteration subject to it being endorsed by the membership organised in Lodges, it is also at least arguable that the resolution did not become effective, and therefore, the alteration was not made, until the return date of 18 January 2019.
I have taken into account that in the present matter the Board of Management has followed a process of endorsement by the membership in Lodges which was apparently required until late 2017 and that this is the reason behind the notice of particulars being lodged more than 35 days after the Board of Management resolved to make the alteration. I also note that the endorsement of the alteration by the membership in Lodges represents a concern with ensuring participation by those members in the important matter of making alterations to the District Branch Rules.
On this basis, to the extent that it is necessary, I allow an additional period of time to lodge the notice of particulars in this matter pursuant to regulation 126(1) of the Fair Work (Registered Organisations) Regulations 2009.
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
[1] Construction, Forestry, Mining and Energy Union [2017] FWCD 4690.
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