CPSU, the Community and Public Sector Union-SPSF Group

[2013] FWCD 8461

[2013] FWCD 8461

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
CPSU, the Community and Public Sector Union
(R2013/410, R2012/200 and R2012/81)
MR ENRIGHT	MELBOURNE, 4 NOVEMBER 2013
Alteration of other rules of organisation.

[1] On 7 October 2011 the SPSF Group of the CPSU, the Community and Public Sector Union lodged with Fair Work Australia notices and declarations setting out particulars of alterations to the rules of the CPSU, the Community and Public Sector Union and to the rules of the SPSF Group of the organisation.

[2] The particulars set out an alteration to rule 5 of the rules of Chapter A - General Rules together with alterations to rules 2E, 25A and 34B of the rules of Chapter C - SPSF Group and to a set of rules for the new Western Australian Prison Officers’ Union Branch (‘WAPOU’) which is to be inserted into the rules of Chapter C - SPSF Group Rules. The above alterations were dependent on the successful outcome of an application for alterations to the eligibility rules of the organisation that removed the exclusion of WAPOU members from the CPSU, the Community and Public Sector Union membership. The alterations to the eligibility rules were lodged on the same date.

[3] On 10 May 2012 Fair Work Australia (as it was then) consented to the alterations of the eligibility rules. In a letter dated 5 June 2012, the SPSF Group was advised that the alterations lodged on 7 October 2011 to the Chapter C rules and to the rules of the WAPOU Branch required a number of changes before they could be considered for certification by the Delegate of the General Manager.

[4] On 30 October 2012, the SPSF Group lodged an amended notice and declaration setting out particulars of alterations to the rules of Chapter C and to the rules of the WAPOU Branch.

[5] The amended application incorporated a number of the alterations recommended to the SPSF Group which included the deletion of the proposed alteration to rule 34B of the Chapter C rules. The alterations, while initiated by the Federal Executive of the SPSF Group and approved by the National Officers Committee (the ‘NOC’) of the organisation, were not recommended by the Federal Council of the SPSF Group. In its application the SPSF Group contended that Rule 42(F) of the Chapter C rules provides the SPSF Group with a degree of flexibility in balloting all of the Federal Council where certain prerequisites were met, namely that a prompt decision was necessary and where the view of the Federal Council was already known and relatively united. A recommendation of the Federal Council of the SPSF Group was therefore not sought before the alterations were referred to the NOC.

[2013] FWCD 8461

[6] Having considered the construction of rule 15(d)(iii) of the Chapter A rules, and having

regard to the operation of rules 13 and 21 of those rules, it would appear that the reliance placed on
Rule 42(F), on its own, was not entirely sufficient. Rule 15(d)(iii) provides as follows:

...alterations to the Rules of Chapter C shall be approved by the NOC, by a majority of the votes exercisable in accordance with rule 16 in favour, only on the recommendation of the SPSF Group Federal Council.

[7] It would seem that Rule 42(F) does not exempt the SPSF Federal Council from conducting a postal ballot but rather provides some flexibility in how the postal ballot is conducted. It would appear that the only way the additional alterations to the Chapter C Rules could be validly made under rule 15(d)(iii) without a new recommendation by the SPSF Federal Council is if the original recommendation by the SPSF Federal Council could be considered as encompassing the additional changes made by the SPSF Group. I am not convinced that this is the case as the additional changes made by the SPSF Group were substantial alterations that were not covered in the original application.

[8] On 27 September 2013, the SPSF Group lodged a notice and declaration setting out further alterations to the Chapter C rules and to the rules of the WAPOU Branch in accordance with the rules of the SPSF Group. The alterations were in addition to the alterations that had already been lodged and made in accordance with the rule altering procedures contained in the rules of the organisation and in the rules of the SPSF Group.

[9] I am satisfied that the alteration to rule 5 of the Chapter A rules was made in accordance with the rules of the organisation. I am also satisfied that the alterations made to rules 2E, 12E, 25A, the deletion of the proposed alteration to rule 34B of the Chapter C rules, and the various alterations made to the rules of the new WAPOU Branch, were made in accordance with the rules of the SPSF Group of the organisation.

[10] In my opinion, the alterations comply with and are not contrary to this Act, the Fair Work Act, modern awards and enterprise agreements, and are not otherwise contrary to law. I certify accordingly under subsection 159(1) of the Act.

DELEGATE OF THE GENERAL MANAGER

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