CPSU, the Community and Public Sector Union
[2024] FWCD 1001
•16 JANUARY 2024
| [2024] FWCD 1001 |
| 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
(R2023/100)
| CHRIS ENRIGHT | MELBOURNE, 16 JANUARY 2024 |
Alteration of other rules of organisation.
On 26 September 2023 the Western Australian Branch of the CPSU, the Community and Public Sector Union’s SPSF Group (the Branch) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules. Further information in support of the application was lodged on 18 December 2023 and 11 January 2024.
The Branch seeks certification of the alterations under section 159 of the Fair Work (Registered Organisations) Act 2009 (the Act).
On the information contained in the notice and declarations, I am satisfied the alterations have been made under the rules of the organisation.
Compliance with statutory obligations
Regulation 126(1) of the Fair Work (Registered Organisations) Regulations 2009 requires particulars of rule alterations to be lodged within 35 days after the alteration is made, or within any additional period allowed by the General Manager (or his Delegate). The alterations were made on 29 March 2023 and lodged on 26 September 2023, being 181 days (approximately six months) after the alterations were made.
The Branch has requested that I allow an additional period for lodgement of the notice of particulars. In a letter dated 14 December 2023, the Branch Secretary provided further information and said, among other things, that:
‘The delay in lodging the application was due to the complex nature of the application and the limited resources of the organisation. A separate application for a similar rule change to the CSA’s Rules was required to be made to the Western Australian Industrial Relations Commission (WAIRC) which required additional resources. The Western Australian Industrial Relations Commission has approved the changes to the CSA rules. The rules of both organisations must operate in tandem for the purposes of their respective council’s joint meetings. I did not interpret that the alterations were made on 29 March 2023 ... as the alterations only take effect on the date Fair Work approves them.’
The rule alterations sought to be made did not appear to be particularly complex and therefore it is more likely that the ‘complex nature of the application’ referred to by the Secretary related to the lodging of separate applications to the WAIRC and the Commission. While there appears to be an absence of clarity in the Branch about the requirements of Regulation 126(1), I allow an additional period, until 26 September 2023, for the lodgement of the notice of particulars. However, I remind the Branch that the granting of an additional period is discretionary and that it is incumbent upon registered organisations to comply with their legislative obligations.
For an abundance of clarity, I reiterate that future alterations to rules must be lodged within 35 days of the Branch making the alterations.
The alterations
The particulars set out alterations to Branch rules 9 –10, 12 – 13, 15 –16, 22 and 33, delete rule 36 and insert new rules 10 and 37, and renumber rules 10 – 35.
The current rules provide for the office of Proxy Branch Councillors.[1] Proxy Branch Councillors are elected for a term of 4 years and perform the duties and exercise the powers of Branch Councillors during Councillors’ absence, unavailability or when a position of Councillor is vacant.
The alterations abolish the office of Proxy Branch Councillor and insert a new rule 10 – Proxy Voting on Branch Council, which provides that a member of the Branch Council who is unable to attend all or part of a meeting may appoint a proxy.
An organisation has the right to mould its internal structures as it sees fit, provided it complies with the requirements of the legislation and its rules.[2] In Higgins[3] the Full Court of the former Commonwealth Industrial Court held that there was a necessary implication that an existing office continues to hold office until the expiration of their term of office fixed by the rules that were in force at the time of their election.
The abolition of office of Proxy Branch Councillor will not result in a truncation of office as the alterations insert a new rule 37 – Proxy Branch Councillor – Transition Rule, which states that any Proxy Branch Councillor declared to hold that office at the 2021 elections will continue to hold that office until the expiration of the term.
The alterations also provide for updates to internal rule references, corrections to grammar and delete sub rule 33.7 and rule 36 which no longer have application as they are out-dated transitional rules.
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.
DELEGATE OF THE GENERAL MANAGER
[1] Rule 9
[2] Imlach v Daley (1985) 7 FCR 457 at 462
[3] Higgins v McGrane & Anor (1961) 5 FLR 82
Printed by authority of the Commonwealth Government Printer
<PR770301>
0
0
0