Construction, Forestry, Mining and Energy Union

[2016] FWCD 2717

[2016] FWCD 2717

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Construction, Forestry, Mining and Energy Union
(R2016/75)
MR ENRIGHT	MELBOURNE, 19 MAY 2016
Alteration of other rules of organisation.

[1]        On 22 April 2016 the Construction, Forestry, Mining and Energy Union (‘the

organisation’) lodged with the Fair Work Commission a notice and declaration setting out

particulars of alterations to the rules of the organisation.

[2]        The particulars set out alterations to rules 13 and 15, and new rules 13A and 13B of

the rules of the organisation.

[3]        On 22 April and 17 May 2016, the organisation gave consent under subsection 159(2)

of the Fair Work (Registered Organisations) Act 2009 (‘the Act’) for the Delegate to make

amendments to the alterations, as set out in Attachment A to this Decision, for the purpose of

correcting typographical, clerical or formal errors.

[4]        On the information contained in the notice, I am satisfied the alterations have been

made under the rules of the organisation.

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[5] The application was lodged on the 51 day after the making of the alterations on 2

March 2016, and thus outside the 35 days ordinarily prescribed by regulation 126(1) of the

Act. That regulation permits me to allow an additional period. The basis on which I may

allow an additional period is not prescribed in the Act but I take into account the reasons

submitted for the lateness, the objects of the Act, and such considerations as the public

interest and a calculation of what is appropriate in the circumstances of the application.

[6]        In this case, the applicant organisation has submitted three grounds on which I may

allow an additional period. Firstly, that there has been no substantial change to the body

which authorised by clear majority the alterations over the period of the delay. In other

words, I understand the applicant to be in effect submitting that the endorsement of the

alterations is not stale or modified, and as of the actual date of lodgement, the intention to

alter the rules in the manner effected and lodged remains unchanged, and that therefore I do

not have a reason to challenge or obstruct the will of the organisation.

[7]        Secondly, the organisation submits that the failure to lodge within the prescribed

ordinary period was an “administrative oversight”. Upon further enquiry, the organisation

explained that the delay was caused by “the official with carriage of the women’s committee
[2016] FWCD 2717

rule change being overseas for the period between the meeting of the National Executive on 2

and 3 March 2016 and the lodging of the rule variation.” In other words, I understand the

organisation to be in effect submitting that it was not through any species of recalcitrance or

wilful inadvertence to regulatory requirements but through the kind of delay that might be

expected under such circumstances.

[8]        Thirdly, the organisation submits that the delay of 16 days is “relatively minor” which

I understand to mean insignificant in the circumstances.

[9]        In respect of the first submission, I accept that the alterations intended at the time of

the resolution of the National Executive on 2 March are the alterations intended by the

National Executive at the time of lodgement.

[10]      In respect of the second submission, I accept that it is understandable that an overseas

absence of a person who had responsibility for the substance of the alterations and the process

of the matter during the relevant period could have an effect on the ability to lodge within the

prescribed time, and I have no reason to doubt that this was the effect in this case.

[11]      In respect of the third submission, I consider that the key word here is “relatively” and

that it is not necessarily the number of days by which a lodgement is delayed that determines

whether or not it is minor or of no account but the surrounding circumstances. In this case,

given the nature of the alterations themselves, as well as the length of time of the delay and

the conclusion already reached that the delay did not in any measure qualify the intention of

the altering body, I accept that the delay of 16 days is not significant.

[12]      Finally, I do not see that the public interest, in this case, would be served by refusing

the alterations on the basis of a delay in lodgement. The alterations are not in my view

controversial and taking all three submissions together, I find no reason not to allow an

additional period up to the actual date of lodgement, and I so allow.

[13]      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

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[2016] FWCD 2717

ATTACHMENT A

1)    The reference “X” in sub-rule 13(ii)(b) corrected to “17”

2)    The reference “that Division” in sub-rule 13A(b) corrected to “each Division”