Construction, Forestry, Maritime, Mining and Energy Union
[2018] FWCD 1944
•9 APRIL 2018
| [2018] FWCD 1944 |
| 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
(R2018/40)
| MURRAY FURLONG | CANBERRA, 9 APRIL 2018 |
Alteration of other rules of organisation.
On 26 February 2018 the Mining and Energy Division (the Division) of the Construction, Forestry, Maritime, Mining and Energy Union (then the Construction, Forestry, Mining and Energy Union) lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to its rules. Further information in relation to the declaration was provided by the Division on 23 March 2018.
The particulars set out alterations to rules 8 and 17 and the deletion of rule 21 of the Division’s rules. The alterations:
· Remove references to “Common Cause”, a journal of the Division which ceased publication in 2017.
· Update the entity with which the Division files the Returning Officer’s report following an election. This reflects the 2017 amendments to the Fair Work (Registered Organisations) Act 2009 (the Act).
· Delete a redundant transitional rule.
The Division’s rule altering procedure is contained in rule 15. Sub rule 15(iii) states:
…the report of the rules committee shall be discussed by the Central Council and the proposed rule changes submitted for approval by a majority of members present and voting at that meeting of Central Council and then submitted for the approval of the membership in the same manner as other Central Council resolutions.
Sub rule 8(iv) sets out the process by which Central Council resolutions are submitted to the membership for endorsement. Paragraph (a) provides that the confirmed minutes of Central Council meetings “shall be posted to the District Branches and Lodges of the Division and shall be published in Common Cause within fourteen days of the conclusion of the meeting”.
In the declaration lodged on 26 February 2018, General Secretary Grahame Kelly indicates that the alterations were approved by the Central Council “and then submitted the membership in accordance with sub-rules 8(iv) and 15(iii)”. He then explains:
The rule alterations the subject of this notice seek, amongst other things… to remove reference to the Division’s journal “Common Cause” on the basis that the journal is no longer published pursuant to a decision of the Central Council at the March meeting of the Central Council in 2017. The final Common Cause was published in September 2017. I note that, in those circumstances, the rule alterations the subject of this notice were not published in Common Cause.
Paragraph 159(1)(c) of the Act requires that I be satisfied that the alterations have been made under the rules of the organisation. In Master Grocers Australia Limited,[1] I considered whether a failure to strictly comply with the rule-altering procedure invalidated the resolution in question:
[6] The question of whether a registered organisation must strictly comply with its rule altering procedure was considered by Delegate Enright in Master Builders’ Construction and Housing Association of the Australian Capital Territory.[2] Delegate Enright applied the test expressed in Project Blue Sky Inc v Australian Broadcasting Authority[3](Project Blue Sky) and subsequently applied to the rules of unincorporated associations in Re: Australian Principals Federation.[4]
[7] In Project Blue Sky, a majority of the High Court of Australia found that “[a]n act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect”.[5] The majority rejected the approach traditionally taken by the courts in distinguishing between mandatory and directory obligations, finding that “[a] better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid”.[6]
[8] A Full Bench of the Australian Industrial Relations Commission in Re: Australian Principals Federation applied these principles to alleged non-compliance with the rules of an unincorporated association, finding that
the test is whether it was a purpose of the rules that an act done in breach of a rule should be invalid. In determining the question of purpose, regard must be had to the language of the relevant rule and the scope and object of the whole of the rules.[7]
[9] In my view, this reasoning applies equally to the rules of registered organisations…
Therefore, the relevant question is whether it was a purpose of the rules that a failure to publish the minutes of a Central Council meeting in Common Cause would invalidate the resolutions made by the meeting. Common Cause is only mentioned in sub rules 8(iv) and (v), in the context of certain things being published in it. I note that the rules are silent as to the form of Common Cause and how often it must be published. An objective assessment of the relevant rule, as well as the scope and object of the rules as a whole, does not suggest that the failure to publish the minutes in Common Cause invalidates Central Council’s resolution to alter the rules.
In the present circumstances, on the information contained in the notice and subsequently provided, I am satisfied the alterations have been made under the rules of the organisation.
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] [2017] FWCD 2547.
[2] [2013] FWCD 3600.
[3] (1998) CLR 355.
[4]Appeal by the Australian Education Union against the decision of Vice-President Ross of 27 January 2006; Lawler VP, Kaufman SDP, Smith C; 26 September 2006; PR973525.
[5] (1998) CLR 355 at [92].
[6] Ibid at [93].
[7] PR973525 at [55].
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