CSR & Holcim Staff Association

[2014] FWCD 6466

[2013] FWCD 9392

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
CSR & Holcim Staff Association
(R2013/327)
MR ENRIGHT	MELBOURNE, 15 SEPTEMBER 2014
Alteration of other rules of organisation.

[1] On 28 June 2013 the CSR & Holcim Staff Association (the organisation) lodged with

the Fair Work Commission (the Commission) a notice and declaration setting out particulars
of alterations to the rules of the organisation.

[2] The particulars set out alterations to rules 2, 19, 33A, 33B, 33C and 33D of the rules of the organisation. The alterations were made for the purpose of complying with the provisions of the Fair Work (Registered Organisations) Amendment Act 2012 (the

Amendment Act). In particular, the alterations provide for specified disclosures, the

implementation of policies relating to expenditure and the mandatory training of officers
with duties that relate to the financial management of the organisation.

[3] Following discussions between the organisation and staff of the Commission, a supplementary declaration was lodged on 5 September 2014.

[4] A question arises as to whether the rule alteration process was complied with when transacting the alterations. Rule 52 of the organisation’s rules states, ‘The Executive Council shall have power to alter these rules or any of them provided that 1 month’s written notice of the proposal to make such alteration has been given to each member of the Executive Council.’ The declaration by Mr Gary Swan on 28 June 2013 states written notice of the proposal was given to each member of the Executive Council on 20 May 2013 and the decision was declared urgent on 2 June 2013, allowing for e-mail voting to decide upon the proposal. Furthermore, the supplementary declaration of Mr Gary Swan on 5 September 2014 states that the proposal was moved by him and seconded by the President on 4 June 2013 and the e-mail votes from Executive Councillor’s were received on 13 June 2013 (two votes received) and 19 June 2013 (one vote received). The date the e-mail vote commenced was prior to the expiry of the 1 month written notice period. Therefore, it appears one of the rules associated with the organisation’s rule altering procedure has not been strictly complied with. In accordance with the Act, I am required to be satisfied that the alterations have been made under the rules of the organisation.

[5] As discussed in Master Builders’ Construction and Housing Association of the Australian Capital Territory,[1]the relevant question to be asked is whether it is intended that non-compliance would result in invalidity. Drawing from Project Blue Sky[2]and the [2013] FWCD 9392

application of its principles to the rules of an Association in Re: Australian Principals

Federation,[3]the issue is not whether an instance of non-compliance has occurred (and as an

inevitable consequence the decision to alter the rules is invalidated). The issue is whether an act which does not comply strictly with the rules has no effect. To determine this, regard must be had to the language, scope and object of the relevant provisions.

[1][2013] FWCD 3600

[2]Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28.

[3]Appeal by the Australian Education Union against the decision of Vice-President Ross of 27 January 2006; Lawler VP,

[6] Applying this reasoning to the facts before me, the object of rule 52 of the

organisation’s rules is that all Executive Councillors receive notice of the proposal to make
such alteration.

[7] I have taken into account that the Executive Councillors who voted on the proposal were not given the required 1 month notice of the proposal to make the alteration before the e- mail vote commenced. In my opinion, the shortened notice of the proposal to make the alteration is procedural and does not invalidate the decision of the Executive Council.

[8] On the information contained in the notice, I am satisfied the alterations have been made under the rules of the organisation. However, I draw to the attention of the organisation that it is incumbent on the organisation to ensure that all Executive Councillors have 1 month’s written notice of the proposal to make the alteration before e-mail voting commences.

[9] On 2 February 2014, Gary Swan, Secretary, 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:

 In proposed rule 2 the definition of ‘Child’ should read ‘these rules’ instead of ‘this

Act.’

 In proposed rule 2 the definition of ‘General Manager’ should refer to ‘Fair Work

Commission’ rather than ‘Fair Work Australia.’

	In proposed rule 33B(c), the rule refers to ‘sub rules (a)’ but should refer to ‘sub rule (a).’
	In proposed rule 33C(a), the rule should refer to ‘members of the Association’, not ‘its members of the Association.’

[10] 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.

[2013] FWCD 9392

DELEGATE OF THE GENERAL MANAGER

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Kaufman SDP, Smith C; 26 September 2006; PR973525.