CPSU, the Community and Public Sector Union
[2018] FWCD 3639
•03 July 2018
| [2018] FWCD 3639 |
| 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
(R2018/125)
| MURRAY FURLONG | MELBOURNE, 03 July 2018 |
Alteration of other rules of organisation.
On 28 May 2018 the Western Australian Branch of the CPSU, the Community and Public Sector Union’s SPSF Group (the Branch) lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to its rules.
The particulars set out alterations to Rule 33.
A question arises as to whether the Branch complied with its rule alteration process when transacting the alterations.
Rule 7.5(e) of the CPSU, the Community and Public Sector Union - SPSF Group rules provides for rule change notices to be given to the Branch Secretary “at least twenty one (21) days prior to the meeting”. Rule 7.5(e) states:
If the Branch Executive or Branch Council recommends Branch rule changes notice shall be given to the Branch Secretary at least twenty one (21) days prior to the meeting of the Branch Council.
Notice of alterations
According to the declaration of Branch Secretary Ms Toni Walkington and accompanying documentation, a resolution to alter the rules was made at a meeting of the Branch Council held on 2 May 2018. The rule alterations were then added to the agenda for the following meeting held 23 May 2018. For the purposes of calculating notice, neither the day the proposed alterations were forwarded nor the day of the meeting are counted
[1]. As such, the notice that was provided was two days short of twenty one days.
As discussed in Master Builders’ Construction and Housing Association of the Australian Capital Terrritory,[2] it is necessary to consider whether the non-compliance referred to above is intended to result in invalidity. Does the failure to provide twenty one clear days’ notice mean that the alterations have not been made under the rules of the organisation[3] – that is, does non compliance with rule 7.5(e) invalidate the alteration of the rules.
To assess this question it is necessary to consider the decision of the High Court in Project Blue Sky[4] and its application by a Full Bench of this Commission in Re: Australian Principals Federation[5]. In the context of the rules of registered organisations these authorities indicate that the issue is not whether an instance of non-compliance has occurred (and as an inevitable consequence the decision to alter the rules is invalidated). Instead, the issue is whether an act which does not comply strictly with the rules has no effect. To determine this, regard must be had to the language, scope and object of the relevant provisions.
Applying this reasoning to the facts before me, the object of rule 7.5(e) is that all Branch Council Members receive proper notice of the alterations under consideration. On the basis of the material before me, Branch Council members knew the substance of the alterations sufficiently in advance of the meeting to enable them to make a considered decision. In my opinion, the fact that the notice was two days short of a clear twenty one days does not invalidate the decision of the Branch Council in this instance. However, the Branch must ensure in future that at least twenty one days’ clear notice is provided of alterations prior to the relevant meeting or postal ballot.
In light of my conclusion above, I am satisfied the alterations have been made under the rules of the organisation.
The alterations allow for the provision of candidate statements in election for office and also make some minor technical changes.
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
[1] White v Godfrey (1959) 1 FLR 357.
[2] [2013] FWCD 3600.
[3] Section 159(1)(c) of the Fair Work (Registered Organisations) Act 2009
[4] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28.
[5] 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.
Printed by authority of the Commonwealth Government Printer
< PR608291>
0
0
0