Finance Sector Union of Australia; Finance Sector Union of Australia; Finance Sector Union of Australia

[2014] FWCD 510

[2014] FWCD 510

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Finance Sector Union of Australia
(R2013/6, R2013/42 and R2013/398)
MR ENRIGHT	MELBOURNE, 28 JANUARY 2014
Alteration of other rules of organisation.

[1] On 24 January 2013, the Finance Sector Union of Australia (the organisation) lodged

with the Fair Work Commission (the Commission) a notice and declaration setting out
particulars of alterations to the rules of the Finance Sector Union of Australia (R2013/6).

[2] The particulars of the notice set out alterations to rules 19.13, 19.14, 21.1, 26.1, 27, 27.1, 27.2, 27.3, 27.4, 28.2, 28.4, 30.2, 39.23, 40.1, 40.2, 40.3, 40.4, 44.3, 45.1, 45.2, 47.7, 47.8, 47.11, 47.18, 47.19, 47.49, 47.50, 48.2, 48.4, 49.4 and 65.11, and the deletion of rules 40.5, 40.6 and 40.7 of the rules of the organisation (the first alterations).

[3] The first alterations create a new office, the National Assistant Secretary and remove the four FSU National Directors positions. They also change the date that National Enterprise Council members and National Enterprise Council Presidents of the RBA section and the Midsized Banks section take office. In addition they clarify the election process for the positions of General Section National President and General Section Local President.

[4] On 1 March 2013, the organisation provided the Commission with further information regarding the procedure undertaken to alter the rules. On 5 March 2013 the firm Ryan, Carlisle and Thomas advised that it was acting on behalf of the organisation and made a short submission in support of the alterations to the rules.

[5] On 31 May 2013, the organisation lodged with the Commission a notice and declaration setting out particulars of further alterations to the rules of the organisation (R2013/42). The particulars of this notice set out alterations to rules 2, 23.1, 23.2, 24.4, 25.2, 26.5, the deletion of rules 21.3 and 26.5, and the addition of new rule 69 to the rules of the organisation (the second alterations).

[6]        The second alterations change rule that sets out the arrangement of the rule-book,

remove redundant references to the FSU National Directors, and, within rule 69, include

alterations for the purpose of complying with provisions of the Fair Work (Registered

Organisations) Amendment Act 2012 (the Amendment Act).
[2014] FWCD 510

[7] On 25 September 2013 Mr Leon Carter, the National Secretary of the organisation, advised that it sought to withdraw the addition of new rule 69 from the alterations lodged on 31 May 2013. On the same day the organisation lodged further particulars of another new rule 69 (R2013/398) (the third alterations).

[8] The third alterations were therefore limited to those made for the purpose of complying with provisions of 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.

[9] On 22 January 2014 the organisation’s agent provided the Commission with further

information regarding the procedures undertaken to alter the rules in each of the matters listed
above.

Creation of the office of National Assistant Secretary

[10] As noted in paragraph [3] the first alterations create a new office, the National Assistant Secretary. Subsection 141(1)(b)(i) of the Fair Work (Registered Organisations) Act

2009 (the Act) requires rules to provide for the power and duties of holders of office, and

s.141(1)(b)(iii) requires rules to provide for the removal of holders of office. The alterations to rules 40.1, 40.2. 40.3 and 40.4 provide for the power and duties of the National Assistant Secretary and the alterations to rule 44.3 provide for the means of removing the National Secretary from office. Subsection 143(1) requires the rules provide for the election of each office holder. The alterations provide for the election of the National Assistant Secretary (alterations to rules 27, 27.1, 27.2, 47.7, 47.8, 47.11, 47.18, 47.19, 47.49, 47.50). In my view these alterations are capable of certification, and immediately following on from certification an election for this office is required to be held.

Removal of the positions of FSU National Directors

[11] On 1 March 2013, 31 May 2013 and 25 September 2013 the National Secretary advised the Commission that no-one holds the position of FSU National Director. The position of FSU National Director is not an office of the organisation as it does not possess the powers of an office as set out in section 9 of the Act (current rule 40). In my view the removal of the four FSU National Directors is a matter for the organisation and the alterations are capable of certification.

The date that the National Enterprise Council members and the National Enterprise
Council Presidents of the RBA section and the Midsized Banks section take office.

[12] Currently sub-rules 47.7.2.12 and 47.7.2.14 provide that the National Enterprise Council members of the RBA section and the Midsized Banks section take office on 15 October in the year of an election and the National Enterprise Council Presidents of these sections take office on 31 December in the year of an election. The alterations to rule 47.7 provide that they will take office on the 1 August and the 15 October respectively, effectively shortening the term of the persons currently holding these offices by 2.5 months.

[2014] FWCD 510

[13] These alterations are in response to a post-election report by the Australian Electoral Commission (AEC) issued on 28 February 2012 in accordance with section 197 of the Act. This report identified certain rules which were difficult to interpret or apply. In particular rule 47.32 requires the convening of a meeting as soon as possible after the National Enterprise Council Presidents of the RBA and Midsized Banks sections have assumed office (as well as other officers) for the purpose of electing the President of each Local Executive. However each Local Executive President takes office on 1 November, which pre-dates the election of the relevant Council Presidents (31 December). These alterations remedy the problem identified by the AEC by ensuring the relevant Council Presidents take office prior to each Local Executive President.

[14] However it is well established that a ‘term of office’ cannot be changed during the

term and that if the rules are so altered, they take effect at the next election.[1]In Beeson Joske J
held that:

[1]See for example Beeson v Blayney & Ors (1965) 8 FLR 283, Higgins v McGrane & Anor (1961) 5 FLR 82

There is a prima facie principle of construction that unless it appears expressly or by implication in rules as amended that they are intended in their amended form to apply to past matters or events, including matters commenced before but not completed at the time of the amendment, the amendments do not apply to the past or uncompleted matters.[2]

[2]Beeson v Blayney & Ors (1965) 8 FLR 283 at 294

[15]      Clearly the alterations before me are intended to apply prospectively; in the future the

relevant elected officers will hold office from 1 August or 15 October. An inevitable
consequence of changing the future commencement date of these offices is that the term of
the persons currently in these offices will be truncated by 2.5 months. In my view the
alterations before me are distinguishable from Beeson. In Beeson the term was extended from

three to six years, while in the matter before me a two year term is truncated by 2.5 months. In

Beeson Joske J stated:

In this case the amendment to the rules increasing the period of tenure of the office from three to six years was a matter of substance which could affect the actions of voters and of potential candidates. A voter might very well be prepared to give his vote to a candidate for a period of three years but might hesitate to do so for double that period...A potential candidate might not be attracted by a period of three years, but the longer period might make him well consider the desirability of putting in a nomination...[3]

[16] Truncating the 2 year term of the relevant officers by 2.5 months, in my opinion, cannot be construed as a matter of substance that would affect the actions of voters and potential candidates. As explained in paragraph [13], these alterations are necessary; they remedy a problem in the existing election rules identified by the AEC. The alterations, in my view, are certifiable.

[2014] FWCD 510

Omissions within the alterations for the purpose of the Amendment Act

[3] Ibid at 294-295

[17] The third alterations are for the purpose of the complying with the provisions of the Amendment Act and impose, among other things, various obligations on the branch officers and branches. For instance, sub rule 69.2.2 requires a branch to develop and implement policies and procedures relating to the expenditure; various rules require branch officers to make specified disclosures; and sub rule 69.6.1 requires branch officers to undertake training.

[18] However, the definitions contained within sub rule 69.1 do not refer to branches. Subsections 148C(5), 148A(9) and 148A(10) of the Act refer to branches in the definitions of declared person or body, relevant remuneration and non-cash benefits respectively. The definitions of declared person or body in sub rule 69.1.3, relevant remuneration in sub rule 69.1.12, and relevant non-cash benefits in sub rule 69.1.13 do not mention branches.

[19] Subsections 148A(4), 148B(4) and 148C(1) of the Act require the rules to provide that

the organisation make specified disclosures to branches. Sub rules 69.3.3, 69.4.3 and 69.5.1
do not provide for disclosures to branches.

[20] Subsection 148A(1)(a)(ii) of the Act requires an officer of the organisation to disclose remuneration received from a board because officer was nominated for the position by, among other things, a branch of the organisation. Sub rule 69.3.1.1.2 omits a reference to being nominated by a branch of the organisation.

[21] Subsection 148A(2)(a)(ii) of the Act requires a branch officer to disclose remuneration received from a board because the officer was nominated for the position by, among other things, the organisation. Sub rule 69.3.4.1.2 omits a reference to being nominated by the organisation.

[22] Subsections 148C(1)(a)(i) and 148C(1)(b)(i) of the Act require the organisation to

disclose, to branches and members, payments made to related parties of a branch. Sub rules
69.5.1.1.1 and 69.5.1.1.2 omit a reference to related parties of a branch.

[23] Subsections 148A(5), 148B(5) and 148C(2) require the rules of branches to make certain disclosures to their members. Sub rules 69.3.7.3, 69.4.7.3 and 69.5.7.3 provide for these disclosures to be ‘published on the branch website (if any).’ Because disclosure is contingent on the branch having a website, and in the absence of a website provides no manner of disclosure, in my view, it does not fully meet the requirements of the Act.

[24] On 5 December 2013, the Commission wrote to organisation’s agent inviting the organisation to remedy the omissions as outlined in paragraphs [18] to [23] above. On 22 January 2014, the organisation’s agent advised that the National Executive of the organisation has made amendments to the rules to remedy the omissions as outlined in paragraphs [18] to [22] and that the notification of the alterations will be made to the Commission when the National Secretary returns from leave in February 2014. The organisation’s agent also advised that currently there are specific pages on the union website which could be used for the purpose of branch disclosures to members and agreed that in due course an amendment to the rules regarding the method of disclosure by branches would be appropriate.

[2014] FWCD 510

[25] As outlined in paragraphs [18] to [23], the alterations for the purpose of complying with the Amendment Act do not, in my view, make all the required provisions. I note, however, that the organisation has already transacted further alterations to remedy most of these omissions. The omissions do not prevent the certification of the alterations that have been made.

Discrepancies

[26] The alterations to rules 21.1 and 26.1 add the office of National Assistant Secretary to the composition of National Conference and National Executive. As a consequence several sub rules have been renumbered, resulting in some incorrect references in the rulebook. Rules 42.1.6, 42.5.2 and 42.6.3 refer to sub rule 21.1.3 which is renumbered 21.1.4, and rule 42.2.5 refers to sub rule 26.1.4 which is renumbered 26.1.5. In my view these inconsistencies do not create so much ambiguity as to impose oppressive, unreasonable or unjust conditions on members or potential members, therefore they do not prevent me from certifying the alterations. However I recommend that the organisation correct these references within the rulebook at its earliest convenience.

Typographical, clerical or formal errors

[27] On 5 March 2013 and 14 January 2014, the National Secretary gave consent, under subsection 159(2) of the Act, 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:

	To renumber existing sub rule number 21.1.3 to 21.1.4;
	To renumber existing sub rules 26.1.3, 26.1.4 and 26.1.5 to 26.1.4, 26.1.5 and 26.1.6 respectively;
	To not delete the reference to 47.46.2. from sub rule 30.2.5
	To amend new rule ‘47.2.7A’ to new rule ‘47.7.2.7A’;
	To insert the word ‘and’ in rule 47.19 between the words ‘General Section Local President’ and LEC Member’ at the 5th line
	To refer to sub-rule 69.4.6 instead of 69.4.4 in sub-rules 69.4.7 and 69.4.7.3
	To refer to sub-rule 69.3.1 in sub-rule 69.3.2

[28] On the information contained in the notices and the further information received, I am

satisfied the alterations have been made under the rules of the organisation.
[2014] FWCD 510

[29] In my opinion, the alterations comply with and are not contrary to the Act , 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

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