CSR, Holcim, Wilmar & Viridian Staff Association known as Salaried Staff United

[2023] FWCD 19

[2023] FWCD 19

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

CSR, Holcim, Wilmar & Viridian Staff Association known as Salaried Staff United

(R2023/78)

PATRICK COYLE ADELAIDE, 15 SEPTEMBER 2023

Alteration of other rules of organisation.

1. On 8 August 2023 the CSR, Holcim, Wilmar & Viridian Staff Association known as Salaried Staff United (SSU) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules. A supplementary declaration and further information in support of the alterations were lodged on 23 August 2023 and 14 September 2023 respectively.

1. The particulars set out alterations to rules 12 and 25. The SSU seeks certification of the alterations under section 159 of the Fair Work (Registered Organisations) Act 2009 (the Act).

1. On the information contained in the notice and declarations, I am satisfied the alterations have been made under the rules of the organisation.

1. The alteration to rule 12 deletes sub-rule 12(f). This sub-rule gives the SSU the discretion to charge a higher joining fee than is otherwise payable if an applicant requires immediate industrial advice or assistance.

1. The alteration to rule 25 inserts new sub-rule 25(s). Rule 25 sets out the powers of the Executive Council. New sub-rule 25(s) empowers the Executive Council to set a discretionary fee for service for applicants for membership (including previous members who seek to re-join) if the SSU is likely to incur costs in assisting the applicant in resolving industrial matters or disputes that occurred before the person applied for membership.

1. Paragraph 142(1)(c) of the Act provides that rules must not impose conditions on applicants for membership that are oppressive, unreasonable or unjust having regard to Parliament’s intentions and the objects of the Act and the Fair Work Act 2009 (FW Act).[1] When considering whether conditions imposed on applicants for membership are oppressive, unreasonable or unjust, regard must be had to: 

   ·   the democratic functioning and control of the organisation,

   ·   participation of members in the affairs of the organisation, 

   ·   accountability to members, and 

   ·   the effective operation and efficient management of the organisation.[2]

1. It could be argued that current sub-rule 12(f) imposes an unjust condition by giving the SSU the discretion to charge a higher joining fee for applicants who require immediate industrial assistance. As stated by Spicer CJ in Mackenzie:[3]

“The amount properly payable by an applicant for membership must, I think, be one which is readily ascertained by the applicant, and not an amount which can be arbitrarily fixed in relation to that applicant as distinct from other applicants, by one of the governing bodies of the organization.”

1. In my opinion, the joining fee payable by an applicant should not be arbitrarily fixed in relation to a particular applicant. The deletion of sub-rule 12(f) may remove an existing injustice.

1. The question then arises as to whether a fee for service that applies only to applicants for membership imposes oppressive, unreasonable or unjust conditions on applicants, having regards to Parliament’s intentions and the objects of the Act.

1. As stated above, the standards of the Act include the effective operation and efficient management of organisations. In my view, the ability to charge a fee for service for industrial issues that occurred outside an applicant’s membership goes to ensuring these standards. It is appropriate that an organisation be able to recoup its likely costs. This cost is separate and distinct from arbitrarily fixed joining fees.

1. In my opinion the alterations do not impose unjust conditions on applicants for membership, having regard to Parliament’s intentions in enacting the Act and the objects of the Act.

1. In my opinion, the alterations comply with and are not contrary to the Act, the FW Act 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] Paragraph 142(1)(c) of the Act provides as follow:

(1)     The rules of an organisation:

…(c) 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

[2] Paragraph 5(3) of the Act sets out the following standards for registered organisations:

(a)     ensure that employer and employee organisations registered under this Act are representative of and accountable to their members, and are able to operate effectively; and

(b)     encourage members to participate in the affairs of organisations to which they belong; and

(c)     encourage the efficient management of organisations and high standards of accountability of organisations to their members; and

(d)     provide for the democratic functioning and control of organisations; and

(e)     facilitate the registration of a diverse range of employer and employee organisations

[3] Mackenzie v ACOA (1962) 5 FLR 342 at 352

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