CPSU, the Community and Public Sector Union

[2024] FWCD 1028

[2024] FWCD 1028

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

(R2024/39)

CHRIS ENRIGHT MELBOURNE, 30 MAY 2024

Alteration of other rules of organisation.

1. On 21 March 2024 the Western Australian Prison Officers’ Union Branch (the WAPOU Branch) of the State Public Sector Federation (SPSF) Group of the CPSU, the Community and Public Sector Union (the CPSU) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules. Further materials in support of the alterations were lodged on 18, 24 and 26 April 2024 and on 22 and 29 May 2024.

1. The WAPOU Branch seeks certification of the alterations under section 159 of the Fair Work (Registered Organisations) Act 2009 (the Act).

1. The CPSU is divided into two Groups, the PSU Group and the SPSF Group. The WAPOU Branch is a Branch of the SPSF Group. The rules that govern the SPSF Group are contained in Chapter C of the CPSU rules. Chapter C includes Schedule B which sets out rules governing the WAPOU Branch. The rules of other branches of the SPSF Group are not contained within Chapter C; instead they are contained in branch specific rulebooks.

1. The particulars of the alterations make a WAPOU Branch specific rulebook which, with the exception of rules 8 and 25, replicates Schedule B of Chapter C of the CPSU’s rules.

Steps taken to alter the rules

1. The SPSF Group rules entitle Branch Councils to make, amend or rescind rules for the regulation and government of their Branch (Chapter C, rule 7.2(c)(iii)). Branch Executives and Branch Councils are entitled to place proposed alterations on the agenda of a Branch Council meeting (Chapter C, rule 7.5(c)). If a Branch Executive or Branch Council recommends rule alterations, the Branch Secretary is to receive notice of the proposed alterations at least twenty-one days prior to the Branch Council meeting (Chapter C, rule 7.5(e)).

1. The declaration lodged with the particulars in this matter states that the alterations were placed on the agenda of the Branch Council by resolution of the Branch Executive. I note that the Branch Secretary is a member of the Branch Executive (see Chapter C, rules 8.1(a) and 13.1)) and the minutes of the relevant Branch Executive meeting record that the Branch Secretary was in attendance. The materials in support of the alterations advise that the Branch Secretary initiated the proposed alterations. The minutes of the Branch Executive meeting record that the Branch Secretary moved the resolution to place the proposed alterations on the Branch Council agenda. The minutes also record that the Secretary’s proposed resolution was adopted without amendment. The WAPOU Branch is of the view that, in these circumstances, there is no requirement to give the Branch Secretary notice of the alterations.

1. I agree that in the circumstance where the Branch Secretary has initiated the proposed alterations and the Branch Executive has adopted the proposal without amendment, the requirement to give notice of the alterations to the Branch Secretary becomes redundant. In these circumstances, and having regard to the information contained in the notice, declaration and supporting materials, I am satisfied the alterations have been made under the rules of the organisation.

1. I further note that on 29 May 2024 the Federal Secretary of the SPSF Group advised that it intends to review the Chapter C rules this year, and that this review will include the notice requirements for altering the rules. Staff of the Commission’s Registered Organisations Services Branch are willing to assist in these efforts through an advice and assistance process which I trust will result in clearer notice requirements.

The alterations

1. As stated above, the alterations create a new WAPOU Branch rulebook identical to current Schedule B of Chapter C, with the exception of rules 8 and 25.

1. A question arises as to whether the rules which are identical to those contained in Schedule B of Chapter C are, in fact, alterations to the rules of the WAPOU Branch. In this regard I note the decision of the Full Bench of the Australian Industrial Relations Commission in relation to a similar issue of assessing rule alterations in Re ATOF[1] where the Full Bench stated:

“The designated presidential member is obliged to form an opinion with respect to each alteration…It is appropriate to have regard to the substance of an extension or contraction of eligibility coverage made in the resolution of an organisation to alter its rules rather than to the form of the amending resolution. The ATOF amendment in this instance took the form of deleting the existing eligibility rule entirely and inserting a new sub-rule with changes to the existing rule incorporated. That form of amendment does not of itself render the whole of the proposed new sub-rule an alteration within the meaning of s 204. The words added to the aggregation of words which constitute the existing rule are the alteration…”[2]

1. In the alterations currently before me, with the exception of rules 8 and 25, the rules that govern the WAPOU Branch have not been altered. They are simply copied to a separate rulebook. Drawing from the reasoning in Re ATOF the alterations before me for consideration are limited to those that have been made to rules 8 and 25.

Changes to the cycle of elections for the Branch Council

1. Currently the Delegates to the Branch Council are elected for a four-year term, however an election is held every two years (rule 8). The Delegates from the Northern Region Sub-Branches are due to be elected this year, and Delegates from other Sub-Branches are due to be elected in 2026.[3] The alteration to rule 8 removes the provisions that provide for the conduct of elections of Delegates to Branch Council on a biennial basis and instead, require the election for all Delegates to be held at the same time every four years.

1. The alterations to rule 25 delete the transitional arrangements made in 2013 (relevant to the creation of the WAPOU Branch at that time) and insert new transitional arrangements which provide for a two-year term of office for the Delegates to the Branch Council elected in 2024. These Delegates will then revert to a four-year term from the election scheduled in 2026. This will ensure the alignment of the election of all Delegates to Branch Council such that in 2026 all Delegates (as well as other Branch officers) will be elected for a four-year term.

1. The alterations to rule 25 include a pre-amble explaining that the purpose of the alterations is to streamline the WAPOU Branch’s governance structures and to simplify and clarify compliance obligations in relation to elections and notifications of change.

Background to the alterations

1. These alterations have arisen because of an enforceable undertaking given under section 316C of the Act by the CPSU to the General Manager of the Commission. The undertaking was given on 21 December 2023 in response to its admission of a number of contraventions of the RO Act by the WAPOU Branch. The CPSU has, among other things, undertaken to complete a comprehensive review of the Schedule B rules to provide for a more streamlined governance structure that simplifies and clarifies the WAPOU Branch’s compliance obligations, particularly in relation to elections and notifications of changes to its records. The CPSU has also undertaken to lodge a request for advice and assistance in relation to proposed rules alterations no later than 28 June 2024.

1. The CPSU has advised that the alterations to rules 8 and 25 and the creation of a separate WAPOU Branch rulebook are a first step towards streamlining its governance structures. Having all elections conducted at the same time every four years will simplify the processes for lodging prescribed information and notifications of changes with the Commission. The CPSU has re-affirmed its commitment to a comprehensive review of its rules and to engaging with the Commission prior to 28 June 2024 in this respect. However, as the 2024 election is about to commence, the WAPOU Branch seeks certification of these alterations prior to the comprehensive review of its rules, enabling the alignment of elections in 2026. Thus, these alterations are the first part of a program of alterations that the WAPOU Branch intends to make which arise from the undertaking given by the CPSU in December last year.

1. I agree that these alterations are a step towards streamlining the WAPOU Branch’s election arrangements and therefore accord with the principle of simplifying its compliance obligations. In accordance with the enforceable undertaking, I look forward to receiving drafts of further alterations prior to 28 June 2024.

Requirements of regulation 126

1. Among other things, regulation 126 of the Fair Work (Registered Organisations) Regulations 2009[4] requires an organisation to publish on its website a notice that alterations to its rules (other than eligibility rules) have been lodged with the Commission within 35 days of making the alterations, or within any additional period allowed by the General Manager (or Delegate).

1. In the context of the current enforceable undertaking referred to above, it was a little surprising that it required recent advice from the Commission to cause the WAPOU Branch to publish such a notice on its website. That did not occur until 28 May 2024, which was not within 35 days of making the alterations as required by regulation 126. However, in my view, no purpose is served by refusing to certify the alterations due to delayed publication of the required notice and, in this circumstance, I allow an additional 55 days for publication of the notice on its website. I continue to urge the WAPOU Branch to engage with the comprehensive education and support programs and products provided by the Commission to enhance its understanding of and compliance with relevant statutory obligations.

Typographical error

1. On 22 May 2024, Andrew Smith, Secretary of the WAPOU Branch, gave consent under subsection 159(2) of the Act for me to make an amendment to the alterations for the purpose of correcting a typographical error. Accordingly, the following correction has been made:

·   The spelling of the word “Branch” in the heading of rule 25 was corrected.

1. In my opinion, the alterations comply with and are not contrary to the Act, the Fair Work Act 2009, modern awards and enterprise agreements, are not otherwise contrary to law and were made under the rules of the organisation. I certify accordingly under subsection 159(1) of the Act.

1. I note that rule 67 of Chapter C provides that Schedule B will cease to apply on the date that autonomous WAPOU Branch rules are certified by the General Manager of the Commission. It appears that, as a result of certifying these alterations, Schedule B no longer applies. For ease of understanding and correct application of the WAPOU Branch rules, I recommend that the CPSU consider deleting Schedule B from the Chapter C rules.

DELEGATE OF THE GENERAL MANAGER

[1] Re Australian Transport Officers Federation; Re Australian Shipping & Travel Officers Association (1990) 35 IR 29

[2] Ibid., at 304

[3] See CPSU SPSF WAPOU Branch election decision and declarations published on the Commissions website: CPSU, the Community and Public Sector Union (CPSU) - Find a registered organisation - Fair Work Commission (fwc.gov.au)

[4]Regulation 126 provides as follows:

Printed by authority of the Commonwealth Government Printer

<PR774581>

(1)For subsection 159(1) of the Act, if an alteration of the rules (other than the eligibility rules) of an organisation is made, the organisation, within 35 days after the alteration is made, or within any additional period the General Manager allows, must: 

(a)      lodge with the FWC a notice setting out the particulars of the alteration; and 

(b)      if the organisation has a web site—publish on its web site a notice that the notice mentioned in paragraph (a) has been lodged. 

(2)The notice must contain a declaration, signed by an officer of the organisation authorised to sign the declaration, stating: 

(a)      that the alteration was made in accordance with the rules of the organisation; and 

(b)      the action taken under those rules to make the alteration; and 

(c)      that the particulars set out in the notice are true and correct to the best of the knowledge and belief of the signatory. 

(3)The General Manager may refuse to certify, under subsection 159(1) of the Act, an alteration of the rules unless this regulation is complied with.