Construction, Forestry, Maritime, Mining and Energy Union

[2018] FWCD 895

[2018] FWCD 895

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

(R2017/231)

MURRAY FURLONG MELBOURNE, 16 APRIL 2018

Alteration of other rules of organisation.

1. On 10 October 2017 the Queensland District Branch (the District Branch) of the Construction, Forestry, Maritime, Mining and Energy Union’s Mining and Energy Division (then the Construction, Forestry, Mining and Energy Union) lodged with the Fair Work Commission (the 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 6 February 2018.

1. The particulars delete rules 15 and 18, renumber rules 16 and 19 as rule 15 and 18 respectively, add new rules 16 and 19, and make alterations to rules 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 17 and 18 (as renumbered).

1. The alterations make significant changes to the District Branch’s management structure, as well as updating various aspects of the rules. The alterations:

·   Make the District Branch’s current Committee of Management, the Queensland District Branch Convention (the Convention) an advisory body. The Board of Management will now be the Committee of Management. Further consideration of this alteration is set out below.

·   Modify the functions and management structure of Lodges. Lodges are groups of members established at a local level, managed by an elected committee. Amongst other things, the alterations transfer some functions of Lodges to the District Secretary, including the acceptance and approval of membership applications and the collection of fines, fees, subscriptions and levies. The alterations also provide for Lodges to merge and for the enrolment and representation of employees of contractors.

·   Update the process by which the membership endorses Board of Management decisions, including requiring regular meetings of members who are not members of Lodges (State Member meetings).

·   Abolish the existing Divisions established for the purposes of electing representatives to the Board of Management. Instead, the Board of Management will determine the composition of Divisions prior to each General Election. The Board of Management will also determine number of District Vice Presidents to be elected and the number and location of District Union Inspectors. This takes effect from the next General Election.

·   Provide for matters to be submitted to the Board of Management for an electronic vote.

·   Rename the Executive Vice President the District Senior Vice-President and insert the word “District” in the titles of the other Executive Officers. The alterations do not substantially affect the functions of any of those offices.

·   Update the objects of the District Branch.

·   Update rules governing the payment of membership fees, simplifying processes, removing references to “half members” and updating rules providing for the benefits of membership to continue where a member would otherwise be unfinancial.

·   Delete lists of by-laws, code of conduct and standing orders. The standing orders and code of conduct for meetings will be determined by the Board of Management and contained in the policies of the District Branch.

·   Update rules governing the District Branch’s funds and assets.

·   Provide for retired members to have a continued affiliation with the District Branch, albeit without voting rights.

·   Make other minor and technical amendments including updating legislative, inconsistent and gender-specific terminology.

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

1. The District Branch rules currently provide that the Committee of Management is the Queensland District Branch Convention (Convention), which meets quadrennially. Between meetings, the District Branch is controlled and directed by the Board of Management, which meets at least three times a year. The Board of Management is composed of the Executive Officers, District Central Councillors and representatives elected on a divisional basis. Convention includes members of the Board of Management ex officio and one delegate elected from each Lodge (Lodge representatives). The resolutions of both bodies are subject to endorsement by the membership via rule 8(iv), which requires the minutes of meetings to be forwarded to the Lodges, and the resolutions recorded therein “become the binding policy of the District Branch” if approved by an aggregate majority of members voting at Lodge meetings.

1. Under the rules as altered, the Board of Management becomes the Committee of Management, with its powers and duties updated accordingly, and Convention becomes an advisory body. In lieu of its functions under the current rules, it can consider and make resolutions on all matters of relevance to the District Branch. Those resolutions must be considered by a Board of Management meeting held immediately following Convention. If approved, the resolutions are then subject to endorsement at Lodge and State Member meetings.

1. The requirement that Convention’s resolutions be approved or otherwise by the Board of Management, a smaller body of officers, dilutes its ability to directly participate in the affairs of the organisation. The alterations therefore introduce a condition or restriction on members which did not previously exist. Subsection 142(1)(c) of the Fair Work (Registered Organisations) Act 2009 (the Act) states 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…and the objects of this Act and the Fair Work Act, are oppressive, unreasonable or unjust”.

1. Parliament’s intention in enacting the Act is set out in section 5. Relevantly, the Act is designed to:

(a) ensure that employer and employee organisations registered under this Act are representative of and accountable to their members, and are able to operate effectively; and

(b) encourage members to participate in the affairs of organisations to which they belong; and

(c) encourage the efficient management of organisations and high standards of accountability of organisations to their members; and

(d) provide for the democratic functioning and control of organisations;…

1. I have taken into account the fact that Convention meets once every four years. In this instance, the effective operation and efficient management of the District Branch would likely be furthered by having a Committee of Management that meets more frequently. Despite the dilution of Convention’s power, on balance the District Branch rules weigh heavily in favour of democratic functioning and control, encouraging the participation of members in the organisation and enhancing accountability to members. In particular, I refer to the requirement that Board of Management resolutions be endorsed at meetings of the membership.  

1. Having considered the alterations in the context of the rules as a whole, I find that that, in the circumstances before me, the alterations do not impose a restriction or condition upon members which is oppressive, unreasonable or unjust within the meaning of subsection 142(1)(c).

1. As a consequence of the alterations, Lodge representatives to Convention will not hold office as defined in section 9 of the Act. The existing delegates were declared elected on 30 June 2016. The rules currently provide that Lodge representatives shall be elected each four years. The current term of office is therefore due to expire following the declaration of the election in 2020. The effect of the alterations is to abolish the office during its term.

1. On 6 February 2018, Alister Kentish, the Division’s National Legal Officer submitted the following in support of the alterations:

The Lodge Representatives to the District Convention were elected in accordance with sub-rule 7(i)(d) of the Queensland District Branch rules [in 2016]. In accordance with sub-rule 7(ii)(a) of the Queensland District Branch rules, the District Branch Convention met on 22-26 August 2016. The rules of the Queensland District Branch provide that the District Convention meets once every four years. Having met, the District Convention cannot meet again until after the general election in 2020. Elections for Lodge representatives to Convention are due to be called as part of that general election. This means that members elected into the office of Lodge Representative to the District Convention in 2016, have no ongoing duties, functions or powers.

The proposed rule alteration to make the District Convention an advisory body, if approved by the Fair Work Commission, will therefore have no effect on the duties, functions or powers of the members who were elected as the Lodge representatives to the Convention in 2016.

1. Provided it complies with the requirements of the legislation and its rules, an organisation has the right to mould its internal structures as it sees fit.[1] Authorities suggest that an elected office may be abolished at any time provided the abolition is effected in accordance with the rules and is bona fide,[2] and does not have an oppressive, unreasonable or unjust effect on members or applicants for membership.[3]

1. Having considered Mr Kentish’s submissions and the current rules of the District Branch, I am satisfied that there is no ability for the Convention to be recalled between its quadrennial meetings. The rules do not provide that a Lodge representative’s term of office ceases once Convention has met, but I accept that there are no ongoing powers or functions associated with the office. In my view the abolition of the office is bona fide and will not have an oppressive, unreasonable or unjust effect on members or applicants for membership.

1. On 6 February 2018, Mitch Hughes, the Executive Vice-President of the District Branch, gave consent under subsection 159(2) of the Act, for me to make various amendments to the alterations for the purpose of correcting typographical, clerical or formal errors. Accordingly the following corrections have been made:

   ·   In proposed sub rule 3(i), existing paragraphs (q), (s) and (t) have been retained and the proposed paragraphs renumbered from (a) to (x) accordingly.

   ·   In proposed paragraph 9(iv)(g), “of” has been amended to “by” in the phrase “District Branch of the District Secretary”.

1. In my opinion, the alterations comply with and are not contrary to the Act, 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 Act.

DELEGATE OF THE GENERAL MANAGER

[1] Imlach v Daley [1985] FCA 13; (1983) 7 FCR 457.

[2] Majority in Saint v Australian Postal and Telecommunications Union and Others (1976) 30 FLR 393.

[3] Roughan v Australasian Meat Industry Employees’ Union (1992) 36 FCR 536.

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