Flight Attendants' Association of Australia-Regional/Domestic Division

[2013] FWCD 7926

[2013] FWCD 7926

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Flight Attendants' Association of Australia
(R2013/402)
MR ENRIGHT	MELBOURNE, 29 OCTOBER 2013
Alteration of other rules of organisation.

[1] On 3 October 2013 the Regional/Domestic Division of the Flight Attendants' Association (the FAAA) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to the rules of the FAAA.

[2] The particulars set out alterations to Rules 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18,

19, 20, 22, 23, 26, 28, 30, 31, 32, 34, 36, 38, 39, 40, 41, 43, 44, 46, 47, 48, 51, 53, 55; deleted
rule 55A; and added new rule 53AA of the rules of the FAAA.

[3]        The FAAA also lodged a submission which provided context for the alterations.

[4] Following initial examination of the alterations, the Commission’s Regulatory Compliance Branch wrote to the FAAA about the alterations to sub rules 9(1)(c) and 55(6). The query in relation to sub rule 9(1)(c) related to the proposed authority for the Divisional Council to, by resolution and under certain circumstances, temporarily suspend the whole or part of the operation of sub rule 9(1)(b), which dealt with part of the composition of the Divisional Council. The query in relation to sub rule 55(6) related to the proposed continuance of the term of office of the incumbent Divisional Vice President as opposed to the creation of a new Vice President position.

[5] On 17 October 2013, the FAAA lodged a supplementary submission which addressed both these queries. In relation to the query about the ongoing Vice President position, the FAAA submitted that the continuity of the incumbent is apparent from the position, its functions and its continued association with the electorate; the latter of which is substantially reflective of the electorate by which the position was originally elected.

[6] I accept this submission. As a consequence, any potential concerns about the truncation of the current Vice President’s term of office have been allayed.

[7] In relation to sub rule 9(1)(c), the FAAA argued that the sub rule was directed towards

temporarily overcoming a potential shortcoming in the rule so as to ensure compliance with
the Fair Work (Registered Organisations) Act 2009 (RO Act), pending a rule alteration.
[2013] FWCD 7926

[8] In its correspondence to the FAAA of 16 October 2013, the Commission had drawn the FAAA’s attention to the decision of Cameron v Australian Workers’ Union as authority for the proposition that “a power in the executive council to suspend one or more of [an organisation’s] rules seems ... to be clearly such as to cause the rules to fail to comply with the Act”.[1] The FAAA submitted in response that the alterations to the rules of the FAAA were clearly distinguishable from the situation in Cameron. It contended that the rule in question in

Cameron concerned a bare power to suspend, and one which applied to the entirety of the

rules. In contrast, sub rule 9(1)(c) was limited in its scope and conditional upon steps being taken. It further drew the Commission’s attention to the decision of Spicer CJ in Cameron. In relation to a power to suspend, his Honour stated:

“I should add that it does not necessarily follow that a limited power of suspension to

[1][1959] 2 FLR 45 at 90 per Morgan J.

[2] Cameron v Australian Workers’ Union [1959] 2 FLR 45 at 55 per Spicer CJ.

meet emergencies would be subject to the same objection.”[2]

[9] With respect, I do not accept the FAAA’s submission regarding Cameron. In particular, I have difficulty in conceiving emergency circumstances in relation to identification of an electorate or electorates that would be equivalent to the emergency situation envisaged by his Honour in Cameron, especially when an alternate remedy – alteration of the rules – is available to the FAAA.

[10] In any event, it is clear, in my opinion, that the other judges in Cameron – Dunphy and Morgan JJ – did not share the view of Spicer CJ on this particular matter.

[11] For completeness, I note that the text of the relevant provisions of the Act are somewhat different from those which prevailed when Cameron was decided. However, I do not consider the difference such as to warrant a departure from the approaches adopted by either Dunphy and Morgan JJ or Spicer CJ in relation to the present matter.

[12] Consequently, I am not satisfied that the addition of sub rule 9(1)(c) complies with and is not contrary to the RO Act. Therefore I am unable to certify the alterations to that rule.

[13] This necessarily raises the issue of whether sub rule 9(1)(c) is able to be severed from the other alterations contained in the statement of particulars. The difficulty here, however, is that there are references to sub rule 9(1)(c) in other sub rules. Specifically, both sub rules 13(3) and 53(f) refer to sub rule 9(1)(c). Thus it cannot be said that sub rule 9(1)(c) is “completely independent of any other rule or alteration” as required for this current purpose.[3]

I note here that section 159 of the RO Act precludes me from excising words or phrases of my

own motion under the present circumstances.[4]It therefore follows, prima facie, that I am

unable to sever rule 9(1)(c).

[3] Re Food Preservers Union of Australia (1988) 79 ALR at 145 per Northrop and Ryan JJ.

[4]See Stapleton v Australian Theatrical Amusement Employees Association 50 ALR 293 at 301 per Evatt J.

[14] However, I note the potential adverse consequences that a refusal of certification is likely to have upon the FAAA. I am aware that the FAAA has invested considerable time and resources in the alterations of its federal rules. I also note that the FAAA is required by its rules to conduct elections for its offices as a matter of urgency.

[2013] FWCD 7926

[15] Therefore, the Commission accepted the offer of the FAAA, on 24 October 2013, to

provide an undertaking to expeditiously process alterations to remove what would now be
redundant references to sub rule 9(1)(c) in sub rules 31(3) and 53(f).

[16] The undertaking was received by the Commission on 25 October 2013. The undertaking was signed by the Divisional Secretary and stated that both the Division and Secretary would, among other things, “take all and reasonable and necessary steps to expeditiously process under the Division’s rules, as altered, further amendments to remove redundant references to rule 9(1)(c), and to expeditiously submit any such alterations made for certification as provided for under the rules”.

[17] On the basis of the undertaking given, I am satisfied that sub rule 9(1)(c) of the

Domestic/Regional (now National) Division can be severed from the remaining alterations.

[18] On the information contained in the notice, I am satisfied the alterations have been made under the rules of the organisation.

[19] In my opinion, the alterations, other than the alteration to sub rule 9(1)(c), 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

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