CPSU, the Community and Public Sector Union
[2023] FWCD 28
•6 DECEMBER 2023
| [2023] FWCD 28 |
| 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
(R2023/80)
| CHRIS ENRIGHT | MELBOURNE, 6 DECEMBER 2023 |
Alteration of other rules of organisation.
On 16 August 2023 the SPSF Group of the Community and Public Sector Union (the Union) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules.
The Union 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 declaration, I am satisfied the alterations have been made under the rules of the organisation.
The particulars set out alterations to Chapter C of the Union’s rules. This Chapter applies to the SPSF Group of the Union. Rules 1, 3 – 8, 12 – 17, 19 – 21, 25, 27, 29, 32 – 34, 37, 38, 42, 51, 52 and 55 are altered, rules 62 and 63 are deleted, new rules 43A, 62, 66 and 67 are inserted and rules 64, 65 and 66 are renumbered as 63, 64 and 65 respectively.
Some alterations are minor in nature, which have been made to provide clarity in the interpretation of the rules. These include changes to improve grammar, the insertion of preambles and amending headings of rules.
Changes have been made to modernise the rules generally. For instance, references to old technology have been removed and language has been amended to remove gendered pronouns and replaced with gender neutral language.
Alterations have been made to remove legacy provisions of rules that are no longer in use, this includes the deletion of references to ‘NSW Special Sub Branch’ to reflect alterations made to NSW Branch rules.
The rules relating to meetings have been updated. The proposed alterations allow for meetings to be conducted by a range of means, including electronic methods. The alterations also standardise meeting arrangements and requirements.[1]
In addition, a new subrule has been inserted in relation to out of session decisions of the Federal Executive. The proposed alterations require that any out of session decision must be reported at the next Federal Executive meeting and noted in the minutes.[2]
The proposed alterations update the powers of Branch Council. The alterations insert a new power to establish sub-branches, which is subject to the approval by the Federal Executive or Federal Council.[3] Branch Councils are also given power to determine a code of conduct for Branch members and officers[4] and to conduct an inquiry and discipline Branch officers and members.[5]
Rules relating to the duties of Federal Officers have been revised. The alterations include a new duty for the Federal President to act in the absence of the Federal Secretary[6] and remove a discretion for Federal President to exercise a vote.[7]
Similar changes have been made in relation to Branch Officers. The alterations remove a discretion for the Branch President to exercise a vote,[8] clarify which offices the Branch Secretary holds ex-officio,[9] and clarify Branch Assistant Secretary duties.[10]
The rules relating to fees[11] and national subscriptions[12] have been redrafted. The proposed alterations include modernising rules to reflect electronic transactions and the process in which Branches are to remit dues and levies to the Federal office. The alterations also insert a new sub-rule to provide for electronic methods for membership applications.[13]
Updates have been made to the provisions regarding misconduct of Officers and members.[14] This includes the process for dealing with allegations of misconduct, the penalties that can be imposed where allegations are proven and the appeal process from Branch decisions.
The alterations propose several changes in relation to the Union’s election rules.
Changes to election rules
The order of elections has been revised under the proposed rules. The stages of the elections are outlined in a table format and provide for the following sequence for collegiate elections: Federal Council delegates, Branch Representative to Federal Executive, Federal Vice President (if necessary) and Federal President, to occur after the declaration of the Federal Secretary election.[15]
The proposed alterations also amend the order of declaration of Branch elections, whereby the Branch Secretary and Branch Assistant Secretary are declared earliest.[16]
A new table has been inserted to clarify which offices are ex-officio appointments.[17]
The proposed alterations include the option of team voting for the election of Branch officers, but only in circumstances where it is provided for under the Branch rules.[18]
The rules relating to collegiate elections have been updated to allow for elections to be conducted by electronic means, as approved by the Returning Officer.[19] The proposed alterations prohibit the Returning Officer from providing voter email addresses to a candidate.[20]
Arrangements for advertising elections have been revised and the requirement for election notices to be published in a newspaper has been removed.[21]
The rules relating to the election cycle for Branch Offices have been redrafted to simplify the nomination process.[22]
The proposed alterations introduce a new requirement on the Branch and Federal Secretaries to lodge prescribed information required by the Act by 31 March in an election year,[23] as the current rules are silent on this date. Commission staff have recommended that the Union consider making future alterations to include the same requirement in the rules regarding collegiate elections, to make it clear that the requirement to lodge prescribed information also applies to collegiate elections.[24]
In regard to voting, the proposed alterations change the date when the ballot shall close, from 21 days to 28 days after the day that the ballot opened, unless otherwise determined by the Returning Officer.[25]
The process relating to the determination of seniority of Federal Vice Presidents has been simplified. The alterations provide for a new process in which seniority is determined at the first meeting of Federal Executive, after the election of the Federal President.[26]
Misconduct
Paragraph 141(1)(b)(vii) of the Act requires that rules must provide for the terms on which persons cease to be members (other than by resignation).[27] Proposed rule 62.4 defines misconduct, sets out a process for determining whether misconduct has occurred and possible penalties, including expulsion from membership. Actions that could result in expulsion from membership include, among other things:
· knowingly breaching a Branch code of conduct, provided the code has been published on the Branch’s website or provided to the member on request;[28]
· knowingly failing to obey any lawful resolution of the Union;[29]
· knowingly obstructing, insulting or behaving in an offensive manner towards any officer or employee of the Union or branch acting in the course of their duties.[30]
When considering expulsion for misconduct, regard must be had to paragraph 142(1)(c) of the Act.[31] That is, whether the altered rules impose conditions, obligations or restrictions on members that are oppressive, unreasonable or unjust when regard is had to, among other things, Parliament’s intention in enacting the Act.
Removal from membership for failing to comply with resolutions of the organisation has been found to be so vague and uncertain as to impose an unreasonable condition on members.[32] However, a rule providing for removal for refusing to abide by a resolution was held to be valid as the notion of “refusal” required the resolution be brought to the attention of the member.[33] As stated in Thornton & Ors v MacKay & Ors:
“…the power to punish for not complying with the decisions of Conference or the National Council or not carrying out the policy in the Union cannot be conceded unless coupled with provisions for the promulgation of details of the decisions and the policy in such a way that a member may reasonably ascertain what he is obliged to do or refrain from doing…” [34]
Proposed rules 62.4(b), (d) and (h) provide that removal from membership can only occur if the member knowingly engages in the misconduct. Further, proposed rules 62.5 and 62.6 provide a process which incorporates the principles of natural justice which must be followed before a person can be removed from membership. In these circumstances I am satisfied that proposed rule 62.4 does not impose conditions, obligations or restrictions that, having regard to Parliament’s intentions and the objects of the Act, are oppressive, unreasonable or unjust.
Truncation of office
The alterations insert a new transitional rule, rule 66, to recalibrate the election cycle due to delays caused by the Covid19 pandemic (this rule does not affect the Western Australian Prison Officers’ Union (WAPOU) Branch election cycle.[35])
The transitional rule provides that the next election will take place in 2025 for a three-year term. Terms of office for collegiate Federal Council offices declared in 2021 and 2022 are brought back into alignment by shortening terms of office.
Other than offices in the WAPOU Branch, the previous elections were due to be conducted and finalised 2020, however most offices were declared in 2021 and some declared in 2022.[36] Under the current rules all office holders are entitled to a four year term.[37] The transitional rule provides that the next election for all offices will take place in 2025, which has the effect of truncating the term of those elected in 2022.
Office holders generally have the right to fulfil their term of office, though truncation of office is permissible in certain circumstances. In considering proposed rule 66, I must consider the following principles relevant to the truncation of office:
· an organisation has the right to restructure itself as it sees fit;[38]
· an organisation can change its offices at any time as long as it is bona fide;[39]
· truncation of office must not impose oppressive, unreasonable or unjust conditions on members or applicants for membership having regard to the objects of the legislation.
Along with the notification, the Union lodged various documents in support of the alterations. These include reports made to various committees and minutes of committee meetings which provide both a description and explanation for the changes. The consistent rationale for the transitional rule is to recalibrate the timing of elections due to delays caused by the Covid19 pandemic. All the materials support that the conclusion that the truncation of the offices elected in 2022 is a bona fide decision of the Union.
I must now consider whether the truncation of these offices has an oppressive, unreasonable or unjust effect on members or applicants for membership having regard to the objects of the Act.
Parliament’s intention in enacting the Act is set out in section 5. The section provides for certain standards, which includes encouraging the efficient management and effective operation of organisations.
In an inquiry into an organisations’ election, the Federal Court was asked to make an order shortening the term of some offices so that they expire at the same time as most other offices in the organisation.[40] Finkelstein J observed (in obiter):
“If such an order is made it will maintain the election “cycles” provided for by the union’s rules. It is not necessary to spend time explaining why this proposal is sensible. It plainly is, and if I had power to make the order, I would do so without hesitation.”[41]
I agree with His Honour’s view that shortening terms of offices to maintain election cycles is plainly sensible. It encourages the efficient management and effective operation of the organisation and reflects Parliament’s intention in enacting the Act. In my view the truncation the offices elected in 2022 will not impose oppressive, unreasonable or unjust conditions on members of the organisation having regard to the objects the Act.
Transitional rule for WAPOU Rules
The WAPOU Branch rules are currently in Schedule B of the SPSF Group Chapter C rules. The Union has advised that the WAPOU Branch is in the process of reviewing these rules with a view to adopting standalone rules.[42] The alterations insert a new transitional rule for WAPOU rules, stating that Schedule B will cease to apply on the date that the Commission approves the WAPOU alterations.[43]
Typographical, clerical and formal errors
On 16 August 2023, 15 November 2023 and 29 November 2023, Karen Batt, Joint National Secretary, gave consent under subsection 159(2) of the Act for me to make various amendments to the alterations for the purpose of correcting typographical, clerical or formal errors. Accordingly, the following corrections have been made:
· In proposed rule 3.3(e), in the second line, retain the deleted word ‘Secretaries’ to qualify the word ‘Branch’ in the first line;
· In proposed rule 3.3(g), delete the cross reference ‘rule 3.3(a)(i)’ and amend to ‘rule 3.3(a)’;
· In proposed rule 3.3(h), in the second line, delete ‘or’ prior to deleted ‘Special Sub Branch’;
· In rule 3.7(a), delete the cross reference ‘rule 3.9(f)’ and amend to ‘3.9(e)’;
· In proposed rule 4.3(a), delete tracked rules (v), (vi) and (vii);
· In rule 12.2(c), delete the cross reference ‘rule 65’ and amend to ‘rule 64’;
· In rule 12.4, delete the reference ‘rule 32.4’ and amend to ‘rule 32.5’;
· In proposed rule 13.2(a), add the words ‘of members’ after ‘A particular class’;
· In rule 13.5(c), delete the reference ‘rule 65’ and amend to ‘rule 64’;
· In proposed rule 13.6(a), amend ‘Assistant Branch Secretary’ to ‘Branch Assistant Secretary’;
· In proposed rule 15.2 column 2, delete ‘Ex Offico’ and amend to ‘Ex Officio’;
· In proposed rule 17.2(e), replace the words ‘no later than’ with ‘be’ and delete the comma after the word ‘days’;
· In proposed rule 19.6(a)(ii), insert 19.2’ after the word ‘Rule’;
· In the third dot point in proposed rule 19.6(b)(iii), the wording should be ‘…the Returning Officer will have regard to all relevant factors including…’;
· In proposed rule 19.6(b)(iii), replace ‘paragraph ##’ with ‘this Rule’ in the fourth dot point;
· In proposed 19.6(j)(i), delete the word ‘next’;
· In proposed rule 20.4(c), insert a space in ‘Rule20.4(b)’ in the fourth line;
· In proposed rule 27.1(a), amend ‘regardless of method it is conducted’, to ‘regardless of method by which it is conducted’;
· In proposed rule 32.9(a)(i), delete duplicate ‘or’;
· In proposed rule 38.2(b), delete ‘15.5’ and replace with ‘15.4’;
· In proposed rule 43A.4(a), delete ‘Rule ####’ and replace with ‘Rule 43A.3’;
· In proposed rule 51.4, delete reference ‘rule 54.13’ and amend to ‘rule 54.12’;
· In rule 55.6, delete the reference ‘rule 66’ and amend to ‘rule 65’;
· In proposed rule 62.2(b)(i), delete ‘##’ and replace with ‘44’;
· In proposed rule 62.5(a)(iv), delete the duplicate full stop;
· In proposed rule 62.9(a), delete ‘???’ and replace with ‘44’; and
· In proposed rule 66.2(b), delete ‘67.1(a)’ and replace with '66.2(a)’.
In my opinion, the alterations comply with and are not contrary to the Act, the Fair Work Act2009, 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] Proposed rules 1.5, 3.8(a), 4.3(a)
[2] Proposed rule 4.5(i)
[3] Proposed rule 7.2(c)(iv)
[4] Proposed rule 7.2(c)(vii)
[5] Proposed rule 7.2(c)(viii)
[6] Proposed rule 12.3(a)(ii)
[7] Proposed rule 12.3(a)(iv)
[8] Proposed rule 13.3(c)
[9] Proposed rule 13.5(e)
[10] Proposed rule 13.6
[11] Proposed rule 51
[12] Proposed rule 52
[13] Proposed rule 54.1(c)
[14] Proposed rule 62
[15] Proposed rule 15.1
[16] Proposed rule 42.1
[17] Proposed rule 15.2
[18] Proposed rules 15.3, 19.6 and 43A
[19] Proposed rules 15.4, 16.1(g), 32.10, 37.2, 38.2
[20] Proposed rules 25.1(g) and 37.1(e)
[21] Proposed rule 17.1
[22] Proposed rules 19.1 – 19.5
[23] Proposed rules 19.1(b) and 19.3(b)
[24] See section 189 of the Act
[25] Proposed rule 19.7(b)
[26] Proposed rule 32.5
[27]Paragraph 141(1)(b)(vii) of the Act requires that rules must provide for:
the times when, and the terms on which, persons become or cease (otherwise than by resignation) to be members
[28] Proposed rule 62.4(h)
[29] Proposed rule 62.4(b)
[30] Proposed rule 62.4(d)
[31]Paragraph 142(1)(c) of the Act provides that rules:
must not impose on applicants for membership, or members, of the organisation, conditions, obligations or restrictions that, having regard to Parliament’s intention in enacting this Act (see section 5) and the objects of this Act and the Fair Work Act, are oppressive, unreasonable or unjust
[32] Hardiman v TWU (1954) 80 CAR 232 at 236
[33] Holmes v Federated Clarks Union of Australia (1956) 1 FLR 1 at 3
[34] Thornton & Ors v MacKay & Ors (1945) 56 CAR 561 at 591
[35] Proposed rule 66.2(d)
[36] See declarations of results in E2020/14, E2020/25, E2020/30, E2021/189 as published on the Commission’s website: CPSU, the Community and Public Sector Union (CPSU) - Find a registered organisation - Fair Work Commission (fwc.gov.au)
[37] Current rule 15.1(e)
[38] Imlach v Daley (1985) 7 FCR 457 at 462
[39] Saint v Australian Postal and Telecommunications Union & Ors (1976) 13 ALR 649
[40] Inquiry relating to elections for offices in the United Firefighters’ Unions of Australian Victorian Branch: Re Churchill [2001] FCA 608
[41] Ibid at 8. His Honour did not make the order because he had no power to do so. The principle that it is sensible to shorten terms of office in these circumstances was not at issue.
[42] Attachment KMB1 – CPSU-SPSF Chapter C Rules – Table of proposed alterations
[43] Proposed rule 67
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