Health Services Union
[2014] FWCD 3587
•5 June 2014
[2014] FWCD 3587
DECISION
| Fair Work (Registered Organisations) Act 2009 | |
| s.159—Alteration of other rules of organisation | |
| Health Services Union | |
| (R2014/58 & R2014/75) | |
| MR ENRIGHT | MELBOURNE, 5 JUNE 2014 |
| Alteration of other rules of organisation. |
[1] On 1 April 2014 and 14 April 2014, the Health Services Union (the Union) lodged
with the Fair Work Commission notices and declarations setting out particulars of alterations
to the rules of the Health Services Union.
[2] The particulars set out alterations to Rules 48 and 48A of the Union’s rules.
[3] On 26 May 2014, a supplementary declaration was lodged by the Union in connection with the alteration to Rule 48. It provided statements addressing sub-regulations 126(1)(b), 126(2)(a) and 126(2)(c) of the Fair Work (Registered Organisations) Regulations 2009. On 27 May 2014 a further declaration was forwarded to the Fair Work Commission. That declaration provided additional information about the steps taken by the Union to transact the alterations to Rule 48A.
[4] On the information contained in the notices, I am satisfied the alterations have been made under the rules of the organisation.
[5] Two matters arise in relation to the substance of the alterations.
[6] I turn first to the alteration to Rule 48. That alteration will abolish the Union’s Tasmania No. 2 Branch and rename the Tasmania No. 1 Branch the “Tasmania Branch”.
[7] One consequence of the alteration is the abolition of every office within the Tasmania No. 2 Branch. The alterations contain no relevant transitional provisions. As a result, the offices will be abolished on the day the alterations are certified, due to the operation of subsection 159(3) of the Fair Work (Registered Organisations) Act 2009 (the Act). This means that the offices will be abolished during the current term of office and the affected officers’ terms of office will be truncated.
[8] I recently noted that[1]:
[1][2014] FWCD 3071; 16 May 2014; paragraph 7
The courts have outlined the principles relevant to the truncation of offices
including:
[2014] FWCD 3587
An elected office may be abolished during the term of an incumbent
provided such abolition is effected in accordance with the rules and is
bona fide;[2]and
The alterations must not have an oppressive, unreasonable or unjust effect on members or applicants for membership.[3]
[9] I have already stated I believe the decision was made in accordance with the rules.
[2]Saint v Australia Postal and Telecommunications Union and Others (1976) 13 ALR 649.
[3]Roughan v Australasian Meat Industry Employees’ Union (1992) 36 FCR 536.
[10] Offices in all Branches have four year terms. The next scheduled election for Branch offices within the Union will take place later in 2014. Nominations for that election will open shortly. Under the rules of the Union, persons elected to an office within a Branch take up their office when declared elected. Therefore, the period of truncation is relatively short.
[11] Under the rules of the Union, the decision to abolish the Branch rests with the National Council. In this instance the National Council acted to give effect to a request made by a general meeting of the Tasmania No. 2 Branch.[4]The affected officers are likely to have received notice of the Tasmania No. 2 Branch general meeting and to have had the opportunity to attend, speak to and vote on the motion to seek the Branch’s abolition. I believe that the decision to truncate the offices, as a consequence of the abolition of the Branch, was bona fide.
[4]Declaration of C. Brown lodged on 14 April 2014; paragraphs 5.
[12] As to whether the alteration is oppressive, unreasonable or unjust, I agree with Delegate Carruthers that “While the duration of the possible truncation is not determinative, the relative shortness of the truncated period is nonetheless relevant to the decision at hand.”[5]
[5][2013] FWCD 3311; 30 May 2013; paragraph 10. See also [2014] FWCD 3071; 16 May 2014; paragraph 10.
[13] Another factor I consider relevant is the Union’s stated intention that the rule alteration occur before the next Branch elections take place.[6]Certifying the alterations to Rule 48 will mean that members of the Tasmania No. 2 Branch are transferred to the newly named Tasmania Branch in time to participate in the forthcoming elections in that Branch. Conversely, refusing to certify the alterations to Rule 48 until the relevant terms of office had expired would mean that the affected members would be denied the opportunity to participate in elections in the Tasmania Branch for almost four years. The first outcome furthers Parliament’s intention in enacting the Act.[7]The latter outcome would not. I believe the
[6]See 14 April 2014 email from National Industrial Officer M. McLeay which contained the lodgement material for
[7]See for instance subsections 5(3)(a), (b) and (d) of the Act
alteration is not oppressive, unreasonable or unjust.
[14] I turn next to consider the alteration to Part 3(d) of Rule 48A.
[15] The alteration proposed for certification states:
In the event of an appointment to fill a casual vacancy occurring on the Branch Committee of Management, the Branch Committee of Management may appoint any member of the Branch who is a member of the relevant component association to which the departing Committee member was a member to fill that vacancy.
[16] I noted in paragraph [10] that offices within Branches of the Union have four year terms. Therefore the effect of this rule is to provide for the filling of a casual vacancy for a period exceeding 12 months or three-quarters of the term of the relevant office. The alteration
[2014] FWCD 3587
to Part 3(d) of Rule 48A is therefore contrary to subsection 146(2) of the Act. It cannot be
certified under section 159 of the Act.
[17] I note that the present rule similarly offends subsection 146(2) of the Act. I
recommend that the Victoria No. 4 Branch takes steps to bring its rules into conformity with
the Act as soon as is practicable.
[18] Other than the alteration to Part 3(d) of Rule 48A, the alterations are, 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
Printed by authority of the Commonwealth Government Printer
<Price code A, PR551168>
R2014/75; third paragraph.
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