Construction, Forestry, Maritime, Mining and Energy Union

[2018] FWCD 3230

[2018] FWCD 3230

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

(R2018/93)

MURRAY FURLONG MELBOURNE, 11 JUNE 2018

Alteration of other rules of organisation.

1. On 24 April 2018 the Construction and General Division (the Division) of the Construction, Forestry, Maritime, Mining and Energy Union (the organisation) lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to its rules.

1. The particulars set out alterations to rule 8, 37 and 42 of the Division rules. The effect of the alterations is to remove the office of Divisional Branch Assistant Secretary (Plasterer) from the Division’s Australian Capital Territory (ACT) Branch, and replace it with the new office of Divisional Branch Assistant Secretary. The alterations remove the requirement that the person holding the office of Divisional Branch Assistant Secretary, in the ACT Branch, be a plasterer. I will now turn to the principles relevant to a restructure that involves the abolition of an office.

1. The following principles are relevant to the restructure of organisations[1]:

·   an organisation has the right to restructure itself as it sees fit [Williams v Hursey (1959) HCA 51, 103 CLR 30];

·   however, if an organisation seeks to abolish an office mid-term the abolishment must be effected in accordance with the rules and must be bona fide [majority in Saint v Australian Postal and Telecommunications Union & Ors (1976) 13 ALR 649];

·   in addition, any abolition of office must not have an oppressive, unreasonable or unjust effect on members or applicants for membership (in the plural) having regard to the objects of the legislation [Roughan v Australasian Meat Industry Employees’ Union (1992) 36 FCR 536].

1. These principles indicate that the alterations should be certified unless they are found to be not bona fide or that they have an oppressive, unreasonable or unjust effect on members.

1. On 24 April 2018, the organisation lodged submissions regarding the effects of the alterations. The organisation advised that it does not see the rule alterations as the abolition of the office. Rather, the change is to widen the scope of members who may be eligible to democratically run for office. In my view, the change in the qualifications for office is of significance that the Divisional Branch Assistant Secretary (Plasterer) is abolished, as it would no longer exist, and a new office without qualification, is created. Consequently, I must now consider whether the abolition of the offices is bona fide.

2. In its submissions, the organisation stated that the alterations have been effected in accordance with the rules and the alteration is sought for a bona fide reason. Specifically, the Divisional ACT Branch is concerned that the designation of the office as being for ‘plasterers’ is too narrow and restrictive so as not to serve the best interests of the Branch. In addition, the office is currently vacant.

1. I have nothing before me to suggest that the alterations are not bona fide. I must now consider whether the abolition of the offices has an oppressive, unreasonable or unjust effect on members or applicants for membership having regard to the objects of the Act.

1. Subsection 142(1) of the Act outlines the general requirements for rules. Subsection 142(1)(c) provides that the rules of an organisation

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 Act2009, are oppressive, unreasonable or unjust.

1. Parliament’s intention in enacting the Act is set out in section 5. The section provides for certain standards which include:

·   ensure that employer and employee organisations are representative of and accountable to their members, and are able to operate effectively;[2]  

·   encourage the efficient management of organisations and high standards of accountability of organisations to their members;[3] and

·   provide for the democratic functioning and control of organisations[4].

1. Having regard to the above, I accept the organisation’s submissions that the alterations are not oppressive, unreasonable or unjust. The alterations do not fundamentally alter the decision making structure of the organisation. There is no loss of representation to members. Furthermore, the alterations ensure that the organisation is representative of the full membership of the ACT Divisional Branch. The alterations provide for the democratic functioning and control of the organisation by encouraging a wider cohort of members to participate in the affairs of the organisation by widening eligibility for office. In each of these respects, the alterations reflect Parliament’s intention in enacting the Act. I have not found anything to otherwise suggest that the alterations will have an oppressive, unreasonable or unjust effect on members of the organisation under section 142(1)(c).

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

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

[1] See Independent Education Union of Australia [2015] FWCD 8168 at [4].

[2] Fair Work (Registered Organisations) Act 2009, section 5(3)(a).

[3] Ibid, section 5(3)(c).

[4] Ibid, section 5(3)(d).

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