Health Services Union - [2014] FWCD 3522

[2014] FWCD 3522

The attached document replaces the document previously issued with the above code on 30

May 2014.

A typographical error in paragraph 5 has been corrected.

Mark Elliott
For Mr Enright

Dated 31 May 2014 [2014] FWCD 3522

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Health Services Union
(R2013/500)
MR ENRIGHT	MELBOURNE, 30 MAY 2014
Alteration of other rules of organisation.

[1] On 23 December 2013, the Health Services Union (the Union) lodged with the Fair Work Commission (FWC) a notice and declaration setting out particulars of alterations to the rules of the Union.

[2] The particulars set out alterations to alterations to rules 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91 and 92 of the rules of the Union, deleted rules 35A and 48A and the inserted new rules 38A and 94.

[3] On 23 April 2014, the Union provided a further declaration setting out the steps which had been taken under the Union’s rules to transact the alterations.

The objection to the alterations

[4] On 5 December 2013, before the alterations had been lodged, the General Manager of

the FWC received an email from Ms. Jackson, the Union’s National Secretary[1]. The email
stated, in part:

[1]I note that throughout the period that this matter has been under consideration, Ms Jackson has not been performing the role

As National Secretary and a member of the Health Services Union, I wish to be heard in opposition to that application for certification.
I say that the proposed rule changes are contrary to objects and requirements of the Act and should not be certified pursuant to s.159.
Would you kindly confirm that you will arrange a mention of the matter so that a timetable for submissions can be set down.

[5] The General Manager replied to Ms Jackson, undertaking to advise when an application was lodged. On 23 January 2014, the General Manager again wrote to Ms Jackson, advising that the application had been lodged in the FWC, that the matter had been [2014] FWCD 3522

delegated to me for determination and that the application had not been examined to date. A
copy of the application was attached to the reply.

[6] On the same date (23 January 2014) I wrote to Ms Jackson. Amongst other things, I noted that “applications under section 159 of the RO Act are not routinely subject to objection. Nor are they generally dealt with by holding a hearing or a conference.” I then expressed the view that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Health Services Union [2014] FWCD 3522
Case: [2014] FWCD 3522
Decision Date: 30 May 2014

CaseChat Overview and Summary

The Health Services Union (HSU) lodged an application with the Fair Work Commission (FWC) seeking certification of rule alterations. Karen Jackson, a former National Secretary of the HSU, objected to the alterations. The Delegate was required to determine whether the alterations were consistent with the Fair Work (Registered Organisations) Act 2009 (RO Act) and other relevant legislation. The Delegate convened a hearing to give Ms Jackson an opportunity to provide evidence in support of her objections. Ultimately, Ms Jackson did not appear at the hearing, but filed written submissions. The Delegate rejected each of Ms Jackson's objections, concluding that the alterations were consistent with the RO Act and other relevant legislation. However, the Delegate refused to certify certain alterations that were inconsistent with the Fair Work Act 2009 or otherwise contrary to law. The Delegate certified the remaining alterations.

Orders