CSR & Holcim Staff Association
[2019] FWCD 4285
•15 July 2019
| [2019] FWCD 4285 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
CSR & Holcim Staff Association
(R2019/23)
| MURRAY FURLONG | MELBOURNE, 15 July 2019 |
Alteration of other rules of organisation.
On 12 March 2019, the CSR & Holcim Staff Association (the Association) lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to the rules of the Association.
The particulars set out alterations to rules 1-17, 20-26, 28-33A, 33D-38, 41-47, 50-51, 53 and 56, and the deletion of the schedule appearing immediately after rule 56, of the rules of the Association.
On 12 March 2019, the Association also filed separate applications for consent to a change of its name (D2019/3) and an alteration of its eligibility rules (D2019/4) under section 158 of the Fair Work (Registered Organisations) Act 2009 (the Act).
In his declaration of 12 March 2019 and lodged with the notice of particulars, Mr Gary Swan, Secretary of the Association, indicated that the proposal to make the alterations in the present matter was carried unanimously by the members of the Executive Council on 1 March 2019. In his further declaration dated 13 June 2019, Mr Swan confirmed that this occurred during a meeting of the Executive Council held on 1 March 2019 of which due notice was given in accordance with rule 27 of the rules of the Association.
On the information contained in the notice, and the further declaration of Mr Swan dated 13 June 2019, I am satisfied the alterations have been made under the rules of the Association.
The notice of particulars set out several alterations which appeared to be incapable of being certified under s. 159 of the Act or contrary to the Act.
Firstly, the alteration to the definition of “The Company” in rule 2 forms part of the eligibility rules of the Association and, therefore, is incapable of being certified under s. 159 of the Act. In this regard, I note that on 13 June 2019 the Association filed an amended application in matter D2019/4 which seeks consent to alter the definitions of “The Company” and “Salaried employee” in rule 2 and make changes to rule 5.
Secondly, the notice of particulars set out alterations to rule 1 and the definition of “The Association” in rule 2 to reflect the change of name sought by the Association in matter D2019/3 to “Salaried Staff Union”. These particular alterations are not inconsistent with the Act but it would be inappropriate to certify them unless and until the change of name of the Association is consented to and takes effect.
The alteration to sub-rule 6(b) (relabelled 7(c) in the notice of particulars) rendered this provision not entirely consistent with subsection 141(1)(d) of the Act as it omitted any reference to informing applicants for membership of the circumstances and manner in which a member may resign.
Finally, the alteration to rule 33 provided grounds for the removal from office of a member of the Executive Council which are different to or beyond the grounds permissible pursuant to subsection 141(1)(c) of the Act.
I am satisfied that the above alterations are severable from the other alterations set out in the notice of particulars in light of the principles set out by the majority in Re Food Preservers’ Union of Australia (1988) 79 ALR 138.[1] In particular, I am satisfied that the remaining alterations operate independently of the alterations identified above and their severance will not affect the meaning and effect of the remaining alterations.
With regard to the alterations to rule 1 and the definition of “The Association” in rule 2 which reflect the change of name of the Association sought in matter D2019/3, these shall be held in abeyance until the new name is consented to and takes effect.
The remaining alterations set out in the notice of particulars include the following.
The further alterations to rule 2 alter or delete various definitions set out therein. In his correspondence of 13 June 2019, Mr Swan clarified that the definitions of “The Act” and “relative” have been deleted from rule 2.
The alteration to rule 3 deletes one of the existing objects of the Association which appears to be inconsistent with the Act and/or the Fair Work Act 2009.
The alteration to rule 4 updates the address of the Association.
The alterations to rules 6 and 7 pertain to the manner in which applications for membership may be made and the circumstances in which such membership takes effect.
The alteration to rule 8 elaborates upon the keeping and maintenance of the register of members.
The alteration to rule 11 provides that financial members are entitled to an electronic copy of the rules of the Association. Whilst this alteration is not necessarily inconsistent with the Act and the Fair Work (Registered Organisations) Regulations 2009, the Association will still have an obligation to supply a copy of its rules in another manner if the relevant member does not agree to its supply electronically. [2]
The alterations to rules 20 and 21 provide, respectively, that the Executive Council can still function despite any vacancies occurring across its membership and that it shall consist of up to nine members rather than a fixed number of nine members.
The alterations to rule 21A (relabelled as rule 22) make changes to provisions regarding the election of offices within the Association including making specific reference to members employed by Wilmar Australia Pty Ltd in addition to two other employers and by providing that the intention of the rule is that no more than four members employed by each of the three relevant employers may be members of the Executive Council.
The alterations to rule 23 provide for the withdrawal of a nomination not later than 7 days after the close of nominations and the submission and publication of candidate statements. They also make reference to the Association conducting its own elections if a relevant exemption is granted pursuant to s. 186 of the Act.
The alterations to the above two rules appear to have been made partly in response to the Post-Election Report issued by the Australian Electoral Commission dated 16 October 2017 with regard to the last scheduled elections held within the Association.[3]
The alterations to rule 24 make changes to provisions regarding the filling of casual vacancies.
The alteration to rule 28 changes the quorum of Executive Council meetings from five members to a majority of the existing members of the Executive Council and provides for attendance via mechanisms other than physical attendance.
The alterations to rules 42, 46 and 47 make changes to the procedures concerning general meetings of members of the Association which include specifically providing that members participating by audio or video link shall form part of the quorum, by providing for the participation of members who participate in this way in voting and by specifying that no member may be appointed as proxy for more than five absent members during such meetings.
Finally, the alterations to rules 31, 32, 33A, 33D, 34, 38, 41 and 50 make minor changes including updating references to relevant legislation or agencies, clarifying procedures regarding the authorisation of payments and providing for alternative means of effecting notice.
In his correspondence of 13 June 2019 Mr Swan gave consent, under subsection 159(2) of the Fair Work (Registered Organisations) Act 2009, for the Delegate to make various amendments to the alterations for the purpose of correcting typographical, clerical or formal errors. Accordingly the following corrections have been made:
· Sub-rule 2(h) (definition of “Financial year”) has been renumbered as sub-rule 2(g) with the remaining definitions in rule 2 renumbered 2(h) to 2(aa) accordingly;
· The reference to the “FWA” in rule 6 has been omitted and replaced with the words “Fair Work Commission”;
· The words “Australian Postal Commission” in sub-rule 23(h)(iv)(a) has been omitted and replaced with the words “Australian Postal Corporation”;
· The reference to sub-rule 32(c)(iv) in the first sentence of rule 33 has been omitted and replaced with a reference to sub-rule 32(b)(iv);
· Sub-rule 12(e) has been renumbered as sub-rule 12(d) with the remaining sub-rules renumbered 12(e) to 12(f) accordingly.
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
<PR709536>
[1] Re Food Preservers’ Union of Australia (1988) 79 ALR 138, 145, Northrop and Ryan JJ.
[2] See Fair Work (Registered Organisations) Regulations 2009, reg. 18(1) – supply of document electronically, reg. 19(2), (3) and Fair Work (Registered Organisations) Act 2009, s. 347
[3] Matter E2017/47.
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