Health Services Union

[2016] FWCD 5418

[2016] FWCD 5418

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Health Services Union
(R2016/105)
MR ENRIGHT	MELBOURNE, 9 AUGUST 2016
Alteration of other rules of organisation.

[1]        On 3 June 2016 the Health Services Union (the Union) lodged with the Fair Work

Commission a notice and declaration setting out particulars of alterations to its rules.

[2]        The particulars set out alterations to Rule 38.

[3]        Further information addressing the requirements of Regulation 126 of the Fair Work

(Registered Organisations) Regulations 2009 was received from the Union’s National

Secretary, Chris Brown, on 8 August 2016.

[4]        On the information contained in the notice, I am satisfied the alterations have been

made under the rules of the organisation.

[5]        On 8 August 2016, the Union’s National Secretary also provided consent, under

subsection 159(2) of the Fair Work (Registered Organisations) Act 2009 (the Act), for me to

amend the alterations for the purpose of correcting typographical, clerical or formal errors.

Accordingly the following correction has been made:

 In the final, unnumbered paragraph of proposed rule 38(j) change the reference to

“sub-rule (m)” to ‘sub-rule (j)’.

[6]        The alterations abolish the Union’s Queensland Branch. There are no transitional

provisions. A consequence of the alterations is that after certification, members of the

Queensland Branch will be reallocated to the New South Wales Branch. Another consequence

is the abolition of every office in the Queensland Branch. The persons holding those offices

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are approximately mid-way through four year terms of office.

[7]        Courts have outlined principles relevant to the abolition of branches and the truncation

of offices, including:

 Provided it complies with the requirements of the Act, the regulations and its rules,

an organisation has the right to mould its internal structures as it sees fit by choosing

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to establish, restructure or abolish branches.

[2016] FWCD 5418

 An elected office may be abolished during the term of an incumbent provided such

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abolition is effected in accordance with the rules and is bona fide; and

 The alterations must not have an oppressive, unreasonable or unjust effect on

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members or applicants for membership.

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[8] I also note a decision of Delegate Nassios who observed that the Regulatory

Compliance Branch generally seeks declarations from officers whose office is abolished mid-

term, to ascertain whether they understood the effect of the alterations and whether they

supported the alterations. Delegate Nassios stated that declarations of this nature play a key

role in determining whether the truncation of a term is bona fide and whether or not it may be

oppressive, unreasonable or unjust under s.142(1)(c) of the Act.

[9]        I have already stated that I believe the offices were abolished in accordance with the

rules.
[10]	The Queensland Branch has less than 100 members and has had so for many years. Its

total comprehensive income and net assets are commensurately limited. It has at various

recent times been subject to schemes of administration pursuant to orders of the Federal Court

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of Australia made under section 323 of the Act. On occasion “the industrial interests of

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members of the …Branch have been looked after by the NSW Branch” . In proposing the

alterations to National Council for transaction, the Union’s National Council stated:

The National Executive, in consultation with the Queensland Branch Committee of

Management, have decided that, at this point in time, the Queensland Branch is not

viable and that its continued existence presents a risk to the Union in terms of

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reporting and legislative compliance requirements.

[11]      A thorough process of consultation took place between the Union’s Senior National

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Industrial Officer and the officers whose offices would be affected by the alterations. The

Branch Committee of Management comprises nine people, including office bearers. Six

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declarations consenting to the changes were received. Two positions were vacant when the

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alterations were transacted. Attempts to contact the remaining Committee of Management

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member by post, telephone, text message and email proved unsuccessful	. In my view the
affected officers understood the effect of the alterations and supported them.

[12]      In my opinion the abolition of the Queensland Branch is a bona fide exercise to

promote the interests and objects of the Union, as is the consequential truncation of the

branch’s offices.

[13]      Finally, the alterations do not in my opinion have an oppressive, unreasonable or

unjust effect on members or applicants for membership. The alterations are intended to

enhance the union’s ability to meet its obligations under the Act. They also mean that

members in Queensland will have access to the resources of the New South Wales Branch.

The alterations do not to disenfranchise the Queensland members, or discriminate against

them in some other way.

[2016] FWCD 5418

[14]      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 Act.

DELEGATE OF THE GENERAL MANAGER

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See E2014/115

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Imlach v Daley [1985] FCA 13; (1983) 7 FCR 457

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Saint v Australia Postal and Telecommunications Union and Others (1976) 13 ALR 649

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Roughan v Australasian Meat Industry Employees’ Union (1992) 36 FCR 536

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[2010] FWAD 3897

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VID459/2010; VID1375/2013

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Operating Report in relation to financial year ended 30 June 2014, FR2014/245.

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Attachment A to the Declaration of Chris Brown which accompanied the particulars of the alterations. Attachment A is the

notice of the proposed changes which was forwarded to the National Council for subsequent consideration by postal

ballot.

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Attachment J to the Declaration of Chris Brown which accompanied the particulars of the alterations. Attachment J is a

Statutory Declaration from Senior Industrial Officer Leigh Svendsen which details the steps taken to consult with the

affected officials.

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Attachment K to the Declaration of Chris Brown which accompanied the particulars of the alterations.

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See AR2016/101.

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Attachment J to the Declaration of Chris Brown which accompanied the particulars of the alterations, paragraph 19.