Construction, Forestry, Mining and Energy Union

[2015] FWCD 5073

[2015] FWCD 5073

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Construction, Forestry, Mining and Energy Union
(R2015/123)
MR ENRIGHT	MELBOURNE, 31 DECEMBER 2015
Alteration of other rules of organisation.

[1]        On 3 June 2015 the Victorian District Branch (the Branch) of the Mining and Energy

Division (the Division) of the Construction, Forestry, Mining and Energy Union (the

organisation) lodged with the Fair Work Commission (the Commission) a notice and

declaration setting out particulars of alterations to the rules of the Branch.

[2]        The particulars set out alterations to rules 2, 3, 5, 7, 8, 10, 11 and 15 of the rules of the

Branch.
[3]	On 4 August 2015 the Commission wrote to the Branch seeking confirmation that the

Branch’s rule altering requirements, including notice and quorum requirements, had been met.

The Commission also sought clarification regarding the proposed alterations.

[4]        On 4 and 5 August 2015 the Branch lodged an amended notification, which clarified

the rule altering procedures undertaken and included further particulars of the proposed

alterations.

[5]        On 25 September 2015 the Commission wrote to the Branch seeking its comments,

particularly in relation to the consistency of various proposed alterations with the Divisional

rules. The comments were sought in light of the existing provision in sub-rule 12(ii)(b) of the

rules of the Division.

[6]         Sub-rule 12(ii) of the rules of the Division provide as follows:

“District Branch Autonomy

(a) Each District Branch shall have autonomy in matters affecting members

of the Branch only and matters concerning the participation of the

Branch in industrial conciliation and arbitration conducted under the

law of a State of the Commonwealth.

(b) District Branches shall make rules for their internal administration not

inconsistent with these Rules. Nothing in these Rules shall prevent any

District Branch from acquiring or owning any property without

[2015] FWCD 5073

recourse to the Central Council and the Central Council shall have no

right to direct or determine any matter in connection with such

property.”

[7]        On 3 November 2015 the Secretary of the Branch lodged a written response to the

Commission, which included a statement that:

“It was not the intention of the District Branch to provide for rules that were

inconsistent with the general Divisional Rules however, reflecting the autonomy of the

District Branch as provided for in Divisional sub-rule 12(ii)(a), the Victorian District

Branch has sought to make rules for the internal administration of the District Branch

which best suit the particular circumstances faced by the District Branch.”

[8] Section 159(1)(c) of the Fair Work (Registered Organisations) Act 2009 (the Act)

requires me, exercising delegation by the General Manager under section 343A of the Fair

Work (Registered Organisations) Act 2009, to certify that in my opinion, the rule alterations

have been made in accordance with the rules of the organisation. I consider it necessary

therefore, to be satisfied that the proposed alterations are “not inconsistent with” the rules of

the Division, in accordance with sub-rule 12(ii)(b) of the Division.

[9]        The current rules of the Branch make provisions that reflect the wording in the

corresponding rules of the Division. Several of the proposed alterations effectively remove

such similar provisions from the Branch rules. I have considered this in the light of the

Branch’s submission that the alterations are “for the internal administration of the District

Branch”.

[10]      I was initially concerned that the removal of the existing provisions from the Branch

rules may encourage a lack of compliance with the existing Divisional rule provisions, which

will continue to exist in the Divisional rules and will therefore continue to apply to the Branch

after the alterations are certified. However, such concerns about potential misuse are not

sufficient grounds for me to refuse certification of the proposed alterations.

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[11] In a Federal Court appeal decision Allshorn v Stapleton , Smithers A.C.J. agreed with

the trial judge’s statement that:

“Doubtless some rules of many organizations could be misused. The remedy of any

such misuse does not lie in the making of an order under s. 140 in respect of the rule

itself, but in the making of an order under s.141 giving directions for the performance

or observance of the rules in such a manner as to prevent, or to overcome the effects

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of, any such misuse.”

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[12]      Likewise, in The Master Plumbers’ and Mechanical Services Association of Australia

former Delegate Carruthers stated that:

“I have considered these questions carefully. Ultimately, I do not believe they are

relevant to a Delegate’s role under s.159 of the Act. It is not enough that a rule is

capable of being misused in such a way as to operate unreasonably. Nor is it enough

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that a rule might give rise to an unintended, unreasonable consequence”.

[2015] FWCD 5073

[13]      I am of the same opinion. As such, I am satisfied that the proposed alterations, with

the exception of the proposed alteration to Branch sub-rule 5(B)(4), are not inconsistent with

the rules of the Division. Nevertheless I remind the Branch that the rules of the Division

continue to apply to the Branch and must be followed until and unless those rules are altered

by the Division.

[14]      On the other hand, in my view, the proposed alteration to Branch sub-rule 5(B)(4) is

inconsistent with the Divisional sub-rule 6(ii)(d). The current Branch sub-rule 5(B)(4)

provides as follows:

“(4)	Subject to Rule 5(C), any member owing subscriptions, fines, fees or levies for
more than fourteen days shall not be entitled to any of the privileges of
membership, including the right to vote, and shall be liable to be sued for the
recovery of amounts owed.”

[15]      The proposed alteration is to replace the word “fourteen” with the word “thirty”, and

to insert the words “after they fall due” after the word “days”.

[16]      However, the Divisional sub-rule 6(ii)(d) provides as follows:

“(d) Subject to sub-rule 6 (iii) any member owing subscriptions, fines, fees or levies

or any of them for more than fourteen days shall be deemed to be unfinancial

and shall not be entitled to any of the privileges of membership, including the

right to vote, and shall be liable to be sued for the recovery of amounts owed to

the Division.”

[17]      A plain reading of the proposed rule shows that if amended, the Branch sub-rule

5(B)(4) would make a provision that is inconsistent with the existing provision in Divisional

sub-rule 6(ii)(d). Such inconsistency would not be in accordance with Divisional sub-rule

12(ii)(b), as cited above.

[18]      I am therefore unable to certify that such an alteration has been made in accordance

with the rules of the organisation. I am satisfied that the alteration to Branch sub-rule 5(B)(4)

is severable from the other alterations contained in the notice of particulars, in light of the

principles set out by the majority in Re Food Preservers’ Union of Australia (1998) 79 ALR

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138 .

[19]      If the Division wishes for the provision in Divisional sub-rule 6(ii)(d), and/or any

other Divisional rules to be altered to enable flexibility for the District Branches, the Division

may conduct a separate rule alteration process for that purpose.

[20]      I am satisfied that the remaining proposed alterations are “not inconsistent with” the

relevant rules of the Division.

[21]      On the information contained in the notice, I am satisfied that the alterations, with the

exception of the proposed alteration to Branch sub-rule 5(B)(4), have been made under the

rules of the organisation.

[22] On 3 November and 9 December 2015 respectively, the Branch Secretary, Mr Geoff

Dyke, provided consent, under subsection 159(2) of the Fair Work (Registered
[2015] FWCD 5073

Organisations) Act 2009, for the Delegate to make minor amendments to the alterations for

the purpose of correcting typographical, clerical or formal errors. Accordingly, the following

corrections have been made:

 In proposed sub-rules 5(C)(4) and 5(C)(5) the words “Unemployed and” will be

removed for consistency with the proposed alterations.

	In proposed sub-rules 5(D)(2) and 5(E)(7) the word “of” has been removed after the
words “just as if they had”.

[23]      In my opinion, the alterations, with the exception of the proposed alteration to Branch

sub-rule 5(B)(4), 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

Endnotes:

1

Allshorn v Stapleton & Ors (1984) 4 FCR 236.

2

Ibid at 238.

3

The Master Plumbers’ and Mechanical Services Association of Australia [2012] FWAD 6715.

4

Ibid at [24].

5

Re Food Preservers Union of Australia (1988) 79 ALR 138 at 145 per Northrop and Ryan JJ.

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