Hair and Beauty Australia
[2024] FWCD 1025
•21 MAY 2024
| [2024] FWCD 1025 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Hair and Beauty Australia
(R2024/16)
| CHRIS ENRIGHT | MELBOURNE, 21 MAY 2024 |
Alteration of other rules of organisation.
On 5 February 2024 Hair and Beauty Australia (HABA) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules. Further materials in support of the alterations were lodged on 1, 5, 12, 13 and 28 March 2023.
HABA seeks certification of the alterations under section 159 of the Fair Work (Registered Organisations) Act 2009 (the Act).
The particulars set out alterations to Rules 2, 5AA, 28, 30, 33, 34, 36, 38, 53A, 55A and 55B. The alterations also set out particulars of new Rules 30A, 30B, 30C, and 30D; and the deletion of Rules 55C, 55D and 55E.
On the information contained in the notice and declarations and subsequent material lodged, I am satisfied the alterations have been made under the rules of the organisation.
On 28 March 2024, HABA lodged correspondence withdrawing some of the proposed alterations. These include proposed alterations to Rule 30 and new Rules 30A, 30B, 30C, 30D and 34. Therefore, I will only consider the proposed alterations to Rules 2, 5AA, 28, 33, 34, 36, 38, 53A, 55A, 55B and the proposed deletion of Rules 55C, 55D and 55E (the remaining alterations).
The alterations to some rules are minor in nature and do not change their substance or meaning. These alterations:
· update the office address in Rule 2;
· amend the numbering of Rule 5AA to 5A;
· correct the spelling of ‘responsibilities’ in Rule 55B.4; and
· correct the punctuation of ‘Associations’ in Rule 55B.6;
Other alterations change the substance of the rules and are uncontroversial:
· proposed Rule 36 updates meeting requirements for office holders, a Committee Member or Office Bearer who fails to attend more than three Committee meetings in any calendar year, for any reason, shall automatically be deemed to have been guilty of gross neglect of duty;
· proposed Rule 53A reduces the minimum number of meetings to be convened by the Committee of Management, from 9 to 5 meetings per year;
· proposed subrule 55A(i) amends the President’s payment from $5,000 to $9,500;
· proposed subrule 55A(ii) amends the Treasurer’s payment from $3,000 to $7,000;
· proposed subrule 55A(iii) provides for a taxable payment to the Vice-President of $3,500 per year for services rendered to be paid at the end of one full year of service in the position of Vice-President;
· proposed subrule 55A(iv) provides for a taxable payment to board members, other than the Treasurer and President, of $2,500 per year for services rendered on the provision that they attend 75% of the board meetings in the calendar year, to be paid at the end of one full year of service in the position of board member;
· delete Rule 55C;
· delete Rule 55D; and
· delete Rule 55E.
In my view, the alterations summarised in paragraphs [6] and [7] comply with the requirements of subsection 159(1) of the Act. However, the remaining alterations warrant more detailed consideration.
Reducing positions on the Committee
Current Rule 28 provides for 10 office positions on the Committee. The Committee consists of a President, Vice President, Secretary, Treasurer and six ordinary members. Furthermore, the rule sets out certain qualifications for office. Relevantly, no person shall be eligible for the position of President, Vice President, Secretary or Treasurer unless the person is primarily involved in salon ownership and operations that provide services for the Hair and Beauty Industry and that such person has served as a Committee Member for one term of two years directly prior to standing for election.
The proposed alterations to Rule 28, and consequential amendments to Rule 33 and subrule 38(f), reduce the number of positions on the Committee from 10 to 6. The alterations to rule 28 also remove the abovementioned qualifications for office for the positions of Secretary and Treasurer.
An organisation has the right to mould its internal structures as it sees fit, provided it complies with the requirements of the legislation and the rules of the organisation.[1] Therefore, I must consider whether the reduction of the number of positions on the Committee has an oppressive, unreasonable or unjust effect on members or applicants for membership having regard to the objects of the Act.[2]
Parliament’s intention in enacting the Act includes ensuring organisations are representative of and accountable to their members and are able to operate effectively;[3] and encouraging members to participate in the affairs of organisations to which they belong.[4]
On 28 March 2024, Maureen Harding, National President, stated:
“We have struggled over the past two elections to fill positions, with the last elections needing to take 3 attempts to fill 6 positions. As a membership organisation with 801 members as per 31 Dec 2023, we do not feel that this reduction will reduce the ability of our members to participate.”
The size of the Committee is small in relation to the number of members of the organisation, and it is further reduced by the proposed alterations. However, given the circumstances as expressed by HABA’s National President above, the requirement to encourage member participation must be balanced against the need for the organisation to be able to operate effectively.
Having regard to the above and the outcome of HABA’s recent elections, it is evident that HABA has had difficulty filling positions on its Committee for some time. The reasons provided by HABA for reducing the size of the Committee are bona fide. In addition, by removing the qualifications for office for the positions of Secretary and Treasurer, it will allow a wider pool of people to be able to nominate for these positions on the Committee. Therefore, I find that the proposed alterations reducing the size of the Committee do not have an oppressive, unreasonable or unjust effect on members or applicants for membership within the meaning of section 142(1)(c) of the Act.
On 13 March 2024, Maureen Harding, National President, gave consent under subsection 159(2) of the Act for me 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 subrule 55A(iii) after the ‘$’ sign, insert ‘3,500’; and
· In proposed subrule 55A(iv) after the word ‘Treasurer’, insert a comma and the words ‘Vice-President’.
In my opinion, the remaining alterations comply with and are not contrary to the Act, the Fair Work Act2009, 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] Imlach v Daley (1985) 7 FCR 457 at 462
[2] Section 142(1)(c) of the Act provides that rules:
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 2009, are oppressive, unreasonable or unjust.
[3] Subsection 5(3)(a) of the Act
[4] Subsection 5(3)(b) of the Act
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