Construction, Forestry, Maritime, Mining and Energy Union

[2018] FWCD 1240

[2018] FWCD 1240

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

(R2017/163)

MURRAY FURLONG MELBOURNE, 24 APRIL 2018

Alteration of other rules of organisation.

1. On 19 July 2017 the Tasmanian District Branch (the District Branch) of the Construction, Forestry, Maritime, Mining and Energy Union’s (then the Construction, Forestry, Mining and Energy Union) Mining and Energy Division lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to its rules. Further information was received from the Mining and Energy Division’s National Legal Officer on 28 March and 5 April 2018, following engagement with staff of the Fair Work Commission’s Registered Organisations Section.

1. The particulars insert new rules 9 and 13, renumber existing rule 9 as rule 9A and set out alterations to rules 3, 4, 5, 7, 8, 9A (as renumbered), 10 and 11. The alterations affect the management structure of the District Branch and make a number of other updates to the rules.

Honorary District President/State Executive Officer

1. The alterations create a new office of Honorary District President, to be elected by the members of the District Branch. An inaugural term of office will expire on 30 June 2020.

1. The Honorary District President will be a member of the Board of Management. The office’s functions depend on whether the office of State Executive Officer is occupied. If it is, the Honorary District President will assist in the performance of the State Executive Officer’s duties. If the office is unoccupied, the Honorary District President assumes the State Executive Officer’s powers and duties and will take their place on Central Council. The Honorary District President will not be entitled to an additional vote on the Board of Management; they will only be entitled to the voting rights otherwise allocated to the State Executive Officer.

1. If both offices are unoccupied, the General Secretary of the Division may act as the Administrator of the District Branch, but will not be a voting member of the Board of Management.

1. The alterations also provide that when the office of State Executive Officer is unoccupied, it can only be filled if the Board of Management so resolves.

1. In correspondence dated 28 March 2018, Mr Kentish explained the effect of the alterations as follows:

The intended effect of sub-rule 8(ii) is that if the office of State Executive Officer becomes vacant for any reason during the term of the office, the office of State Executive Officer would, in effect, lapse and the responsibilities and duties of that office will be carried out by the holder of the new office of the Honorary District President.  In circumstances where the office of the Honorary District President was not filled, the General Secretary of the Division will have the power to act as an administrator of the District, subject to the rules of the District and the decisions of the Tasmanian District Board of Management. Should it subsequently choose to do so the Tasmanian Board of Management would be able to determine that the office of State Executive Officer is, in effect, re-enlivened. In making such a decision, members of the Board of Management would, of course, be subject to their responsibilities under the relevant rules of the union and legislation governing registered organisations.

The intention behind the rule change is to endeavour to allow the Board of Management, and if necessary the Division, better to deal with the current and foreseeable budgetary and membership position of the Tasmanian District Branch which makes it difficult to sustain a full-time official of the District.  I can confirm that this aspect of the rule change would have no effect on the current holder of the office of the State Executive Office unless that holder resigned or was removed from office in accordance with the rules of the District Branch. The holder of the office of State Executive Officer as at the time of the rule change has retired after many years service and the person appointed to the office of State Executive Officer by the Board of Management, David Bean, was at the time of the passing of the proposed rule changes, himself a member of the Board of Management. 

1. I accept Mr Kentish’s submissions as to the effect of the alterations. Once the office of State Executive Officer falls vacant, the default position is that it will remain unfilled and its functions will be assumed by the Honorary District President, unless the Board of Management resolves to re-enliven the office.

Dismissal from office

1. The alterations insert a new rule 13 setting out the circumstances in which elected officers of the District Branch can be dismissed. I note that the wording of the proposed rule replicates current paragraph 8(i)(d), which is being deleted. The rule provides, in part:

A person elected to office in the District Branch shall not be dismissed from office unless found guilty by the Board of Management of… a substantive breach of the Rules of the Division or District Branch…

1. Section 141(1)(c) of the Fair Work (Registered Organisations) Act 2009 (the Act) limits the circumstances in which rules can provide for removal from office. Amongst other things, an officer can be removed where they have been found guilty of “a substantial breach of the rules of the organisation”.

1. On its face, it is not clear whether proposed rule 13 is consistent with section 141(1)(c). In correspondence dated 5 April 2018, Mr Kentish confirmed that the District Branch interprets the words as synonymous, and is therefore of the view that the sub-rule is consistent with section 141(i)(c)(ii). The Macquarie and Shorter Oxford English Dictionaries separately indicate that the words “substantial” and “substantive” can be defined in a number of ways, including some which intersect.[1] On that basis, I accept that it is open to the District Branch to regard the words as synonymous and to apply the rule in that way. As a consequence, I find that the rule is consistent with section 141(1)(c).

Remaining alterations

1. In addition to the matters discussed above, the alterations:

·   Make a number of updates to processes associated with admitting new members and charging fees and subscriptions.

·   Update guidelines for Board of Management meetings, including giving it more discretion as to when to hold meetings and providing for meetings to be conducted either in whole or in part by telephone.

·   Modify the functions and management structure of Lodges and clarify the respective functions of Lodge Secretaries and the State Executive Officer. Elections for Lodge Committees will be held at least once every four years instead of annually. The minimum size of the Committee is reduced and the position of Lodge Treasurer is abolished.

·   Abolish the elected position of District Branch Check Inspector and the positions of Trustees of District Branch Fund.

·   Insert a new object relating to the support of “bona fide charitable and other worthy causes”.

·   Update the address of the District Branch’s registered office.

·   Make minor amendments including replacing gender-specific language, correcting inconsistent terminology and updating rules to reflect changes to the legislation.

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] Macquarie Dictionary Online; The Shorter Oxford English Dictionary (3^rd ed), page 2063-4.

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