CPSU, the Community and Public Sector Union
[2019] FWCD 3737
•24 JULY 2019
| [2019] FWCD 3737 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
CPSU, the Community and Public Sector Union
(R2019/48)
| MURRAY FURLONG | MELBOURNE, 24 JULY 2019 |
Alteration of other rules of organisation.
On 3 May 2019 the SPSF Group New South Wales Branch of the CPSU, the Community and Public Sector Union (the NSW Branch) lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to its rules. Additional information regarding the transaction of the alterations was provided on 29 May 2019.
The particulars set out alterations to the following CPSU, SPSF Group, New South Wales Branch Rules:
2 – Registered Organisation
3 – Interpretation
4 – Admission to Membership
5 – Constitution of Branch Council
6 – Branch Officers
7 – Quorum of Branch Executive
8 – Branch Fund
9 – Postal Ballot of Branch Executive and Branch Council
10 – General and Special Meetings
11 – Industry and Advisory Bodies
12 – Local Representatives
13 – Branch Associates
14 – Election of Branch Officers and Delegates to Branch Council
15 – Seniority of Vice-Presidents
16 – Elections of Delegates to Federal Election
The particulars also deleted the following Rules:
17 – Special Transitional Rules
Part B – Rules for the Operation of the Sub-Branch
The particulars also insert a new Rule 17 – Transition Rule up to the 2020 Election.
Removal of Sub-Branch No. 1
The deletion of Part B removes all rules which provide for and relate to the operation of the SPSF Group NSW Sub-Branch No. 1 (the Sub-Branch). The alterations to Rules 2, 4, 5, 6, 7, 8, 9, 12, 14 and 16 also remove references to the Sub-Branch.
The NSW Branch submitted that of the 34,728 NSW Branch members, only 300 members belong to the Sub-Branch. Mr Little, Branch Secretary, further submitted that since his election to office in 2017, the Sub-Branch has been inactive. In addition, correspondence discovered by the CPSU dating from 2015 states that the Sub-Branch intended to dissolve at its 2016 AGM and had requested that the NSW Branch undertake the relevant rule changes and process for this dissolution of the Sub-Branch. Some time prior to the 2016 elections all officers of the Sub-Branch resigned. Rule 7 of the NSW Branch Rules requires that no business specifically relating to the affairs or operation of the Sub-Branch shall be transacted unless the said quorum includes the Branch Assistant Secretary Sub-Branch. No further steps were taken to amend the rules to dissolve the Sub-Branch and remove it from the NSW Branch Rules as the quorum requirement within NSW Branch Rule 7 could not be achieved. In late 2018/early 2019, a casual vacancy election was held for the delegate positions for Sub-Branch members on the Branch Council. All positions were declared in February 2019. Therefore the required quorum could be met and steps can be taken to remove the dissolved Sub-Branch.
These alterations raised questions as to their consistency with the general requirements of the rules of an organisation as set out in section 142 of the Fair Work (Registered Organisations) Act 2009 (the RO Act), which requires that an organisation’s rules must not be contrary to, or fail to make a provision required by the RO Act. Such provisions include the standards set out in section 5 of this Act. On 31 May 2019, the NSW Branch submitted:
The Sub-branch has been inactive for some years. During that time, Sub-Branch members have been active in the Branch proper on a de facto basis. Should the Delegate certify these changes the Sub-Branch Members will form part of the Branch, the members from within the Sub-Branch coverage have always been integrated within the PSANSW.
These submissions satisfy me that the alteration is not contrary to section 142 of the RO Act.
Other Alterations
The alteration to Rule 2 identifies the correct legislative reference by including the Fair Work Act 2009 (the Act) and removes any record keeping requirements for the Sub-Branch.
The alteration to Rule 3 updates reference to out-dated legislation.
The alteration to Rule 5 removes the Sub-Branch positions on the Branch Council. Alterations also re-format existing sub-rules.
The alterations to Rule 6 remove Branch Officer positions which are reserved for the Sub-Branch.
The alterations to Rule 8 allow two members of the Branch Executive to authorise payment by a system of funds transfer.
The alteration to Rule 9 updates how out of session decisions can be made by the Branch Council and Branch Executive. These are now to be made in the terms specified in Chapter C of the CPSU Rules.
The alterations to Rule 10 re-number existing sub-rules and allow the Chairperson to notify the Branch Secretary of the number of members recorded at voting by any means.
The alterations to Rule 13 re-number and re-format existing sub-rules as well as updating cross-references to Chapter C of the CPSU Federal Rules.
The alterations to Rule 14 update the reference to Chapter C of the CPSU Federal Rules in regards to eligibility to nominate for Branch Office positions. Alterations also remove an office of Branch Assistant Secretary. The removal of this office is to bring consistency between the number of Assistant Secretary positions in the NSW Branch and the Associated body, The Public Service Association and Professional Officers Association Amalgamated Union of New South Wales. Transitional provisions have been introduced within a new Rule 17 which allows for the preservation of offices till the 2020 Election. Alterations also re-number existing sub-rules.
The deletion of Rule 17 removes out-dated special transitional rule from 1993.
On the information contained in the notice and provided on 29 May 2019, I am satisfied the alterations have been made under the rules of the organisation.
On 31 May 2019, Troy Wright, Acting Branch Secretary, gave consent, under subsection 159(2) of the Fair Work (Registered Organisations) Act 2009, for the Delegate to make various amendments to the alterations for the purpose of correcting typographical, clerical or formal errors. Accordingly the following corrections have been made:
· Rule 5.2: Within the proposed Rule 5.2 a colon(":") should be included after the words "who work in";
· Rule 6.4: Within the proposed Rule 6.4 a full-stop should appear after the word ''Secretary'';
· Rule 8.2: Within the proposed Rule 8.2, the letters 'rt' have been included. The letters "rt" should be deleted;
· Rule 13.1: Within the proposed Rule 13.1 a colon (":") should be included after the words "Branch Associate including" and a full-stop (".") should appear at the end of the sentence at 13.1(c);
· Rule 13.1 and 13.2: At the end of Rule 13.1, the following sentence is included "In addition, the following persons shall be entitled to be admitted as Associates of the Branch if not otherwise eligible for membership of the Group:" That sentence should be deleted from the end of Rule 13.1 and included at the start of Rule 13.2;
· Rule 13.3: Within the proposed Rule 13.3 a full-stop(".") should appear at the end of the sentence at 13.3(c);
· Rule 14.1(b): the words "the term of the office and" should be deleted;
· Rule 14.2(b): the words "the term of the office and" should be deleted;
· Rule 14.3: Within the proposed Rule 14.3 a full-stop(".") should appear at the end of the sentence at 14.3(b )(ii);
· Rule 14.4: Within the proposed Rule 14.4 a full-stop(".") should appear at the end of the sentence at 14.4(b )(ii);
· Rule 14.5: Within the proposed Rule 14.5 a full-stop should be removed from the end of 14.5(b), which should now read" ... nominate for Branch Council:";
On 4 July 2019, Stewart Little, Branch Secretary, gave consent, under subsection 159(2) of the Fair Work (Registered Organisations) Act 2009, for the Delegate to make various amendments to the alterations for the purpose of correcting typographical, clerical or formal errors. Accordingly the following corrections have been made:
· Rule 12.4: the ‘or’ appearing between the words “…Executive may…” should be deleted. The rule should be amended to read: “The Branch Executive may…”
· Rule 14.4(b): the word ‘Vice’ should appear between the words ‘Branch President’. Rule 14.4(b) should be amended to read: “Read 20.7 of Chapter C of the Federal Rules sets out who is eligible to nominate for Branch Vice President.”
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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