Health Services Union
[2014] FWCD 3522
•30 May 2014
[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 “subsection 657(2) of the Fair Work Act 2009 (the FW Act) allows a hearing to be convened in connection with an application under section 159 of the RO Act”, including applications which were being determined by a person who held a delegation under section 343A of the Fair Work (Registered Organisations) Act 2009 (the RO Act). I noted that I would only have the power to convene a hearing under s.657(2) of the FW Act if it was “necessary or convenient” for the purpose of forming the requisite opinions under section 159 of the RO Act. Finally, I noted that there was nothing in Ms Jackson’s 5 December 2013 email which compelled the conclusion that it was is necessary or convenient to hold a hearing to perform my section 159 function in the current matter. Ms Jackson was invited to lodge written submissions about that issue by 31 January 2013.
[7] Ms Jackson obtained an extension of time to lodge that material. An affidavit was
lodged on 4 February 2014. For reasons which will become apparent, it is necessary to set out
the content of Ms Jackson’s affidavit in some detail.
[8] Ms Jackson asserted:
As a senior HSU official of long standing I have an intimate understanding of the HSU's culture, including governance culture, as well as its internal political interactions and administrative machinery.[2]
[2]K. Jackson affidavit of 4 February 2014; paragraph 5.
[9] In relation to convening a hearing Ms Jackson submitted, inter alia:
The holding of a hearing in the current circumstances is necessary or convenient for the purposes of the delegate being more thoroughly advised of the issues surrounding the application, and the history of the substantive matters the subject of the application, for the purpose of forming the requisite view.
The holding of a hearing poses no inconvenience to the Commission, the delegate or the applicant. The holding of a hearing has the capacity to more quickly identify the positions of the parties, to allow the Commission to illicit further details more quickly and spontaneously, and hence expedite the process of granting (or rejecting) the application. It is in the interests of the applicant that the application be dealt with expeditiously.[3]
[3]Ibid; paragraphs 8 - 9.
[10] Further, Ms Jackson submitted:
Depending on the matters to be considered, the Commission and the delegate may need to have benefit of the sworn evidence of witnesses in circumstances where the evidence of witnesses can be tested in cross-examination and the credit of witnesses can be assessed. In my view such matters likely arise from the current application by the applicant.[4]
[4]Ibid; paragraph 10
[2014] FWCD 3522
[11] In relation to the alterations objected to, Ms Jackson’s comments presented a brief outline of some of her key points, which was an appropriate approach given that my invitation
was confined to the issue of whether a hearing should be convened. Ms Jackson’s primary
concerns were directed towards four aspects of the alterations[5].
[5]Although Ms Jackson indicated that concentrating on those aspects of the alterations did not mean that she had no objection
[12] First, Ms Jackson objects to the proposed manner of conducting elections within various branches of the Union. Ms Jackson states that the proposed alterations, if certified, “would re-introduce team-nomination in elections in the three branches formerly included in HSU East.”[6]
[6]K. Jackson affidavit of 4 February 2014; paragraph 15
[13] Ms Jackson continued:
Team-nomination (above-the-line) voting provides an enormous advantage to incumbents...
There is a history of debate within the HSU in which the real motives of many incumbent officials in supporting the above-the-line/ team nomination voting system has been clear.
Both I and other HSU officers and employees had a series of conversations and debates with other HSU officials, including current senior officials involved in the union's decision-making processes regarding electoral changes sought in R2013/500, in which the latter officials' real motives for supporting the team- nomination (above-the-line) voting system, (being to provide incumbents with an electoral advantage) was exposed. In conversation and debate with several officials it has been clear to me that there is an entrenched view within the senior echelons of the HSU (a view that is factually correct) that the team- nomination system affords a major advantage to incumbents and disadvantages either prospective independent candidates or small groups of disaffected members who might be disposed to stand together in elections but lack the resources to organise a full ticket.
To the extent that union officials act to introduce an electoral system for the purpose, wholly or in part, of conferring on them as incumbents an electoral advantage in union elections, this constitutes action for an improper purpose and is beyond power.
...
The removal of above line voting in the three branches by the Administrator was in the context of criticism of the rule in the Temby report and the Administrator considering that its removal would ensure that the Branches would be accountable to and representative of the members and continue to encourage their democratic functioning and control. In its application, the applicant has provided no explanation of the purpose of the proposed electoral rule changes or why they are said to be necessary so soon after the team- nomination system was abolished in the three branches by the Administrator pursuant to a scheme approved by the Federal Court.”[7][footnotes removed]
[7]Ibid at paragraphs 16 - 19, 21 - 22
[2014] FWCD 3522
[14] Secondly, Ms Jackson alleged that “Senior officers of the union have conducted the
process of making the rules changes in secrecy, at least as it concerns my having
knowledge.”[8]
[8]Ibid at paragraph 23
[15] Thirdly, Ms Jackson asserted that:
Rule 88(e) of the HSU's rules requires that alterations to rule 88 be approved by the Branch Committee of Management of the relevant branch. In his declaration, Chris Brown does not describe any step to have the relevant branch committees of management approve the branch rule changes that are the subject ofR2013/500.[9]
[9]Ibid at paragraph 24.
[16] Fourthly, Ms Jackson submitted:
The branch rule changes sought in R2013/500 include major changes to the system of financial governance for the NSW, Victoria No 1 and Victoria No 3 Branches of the HSU. As a general proposition, I will object to these changes. These changes, in many cases, reverse the system for the financial governance the demerged branches established by rule changes by The Honourable Michael Moore pursuant to a scheme approved by the Federal Court.
...
in keeping with the request of the delegate that I address only the question of whether a hearing ought be held, I do not address here the questions of merit or law in respect of alteration of rules for the financial governance of the three demerged branches sought in R2013/500 other than to note that the union has provided no reasons for the changes being sought where the changes sought
reverse in many cases the provisions put in place by the Honourable Michael
Moore.[10]
[10]Ibid at paragraphs 25, 31
[17] In conclusion, Ms Jackson submitted:
There is a serious case to be tried that the proposed rule changes:
• Will result in rules that do not comply with s.l41(1)(b)(iv)
• Will result in the HSU not meeting the standards set out in s.5(3)(a) and (d).
• Will imposed on 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, are
oppressive, unreasonable or unjust contrary to s.142(1)(c) of the FW(RO)
Act.[11]
[11]Ibid at paragraph 30
[18] The Union responded to the issues raised in Ms Jackson’s affidavit on 5 February
2014. It is sufficient for the time being to note that convening a hearing was not the Union’s
preferred course.
[2014] FWCD 3522
[19] After considering the points raised by both Ms Jackson and the Union, I determined that it was appropriate to convene a telephone conference. On 13 February an officer of the FWC wrote to the Union and to Ms Jackson to advise them of my decision and to indicate that the purpose of the telephone conference was to provide Ms Jackson an opportunity:
to identify each alteration to which objection is raised; to provide particulars of each objection, having regard to the provisions of
section 159 of the RO Act and the associated provisions of that Act;
to identify any authorities on which she intends to rely; and to foreshadow any evidence she wishes to adduce, whether documentary or
otherwise, in relation to any alteration objected to (in this regard I noted
Regulation 181 of the Fair Work (Registered Organisations) Regulations 2009).
before establishing a timetable for the disposition of the matter.
[20] The conference was proposed for the week commencing 17 February 2014. The parties were asked to confirm their availability. No response was received by Ms Jackson. Ultimately, difficulties in contacting Ms Jackson meant that the telephone conference did not proceed as planned.
[21] Ms Jackson contacted the FWC on 21 February 2014, requesting further time to
prepare for the conference. Following a number of email and telephonic communications with
the FWC, Ms Jackson again emailed the FWC on 3 March 2014.
[22] In that email Ms Jackson stated:
I do not have the financial or personal health resources to participate in this matter as though it were a piece of adversarial litigation in which there is an onus on me to establish that the application ought not be approved, through detailed submissions and compliance with timetables that I simply cannot, as a litigant in person, comply with in my present circumstances.
[23] Ms Jackson then made other assertions about whether the National Councillors who voted on the alterations would have done so in an informed manner and made certain allegations about some of the persons involved in transacting the rule changes. She concluded: “If you hold a hearing, I will participate in person and explain to you how and why the changes have the character I have asserted.”[12]
[12]Email from K. Jackson to Delegate Enright dated 3 March 2014, sixth paragraph.
[24] In order to ensure Ms Jackson was provided a reasonable opportunity to prosecute her objection, I relisted the matter for telephone conference on 17 March 2014.
[25] At the telephone conference Ms Jackson appeared on her own behalf. Mr Brown, the Acting National Secretary of the Union appeared for the Union. With the consent of the parties, the telephone conference was recorded and transcribed.
[26] During that conference, receipt of Ms Jackson’s February affidavit was confirmed.
[27] During the conference, the following exchange took place:
[2014] FWCD 3522
MR ENRIGHT: - - - and can you just give me some sense of what you propose - if a hearing is going to be held, whether that affidavit would suffice for your purposes for the purposes of that hearing or whether you wish to give verbal evidence or call other evidence; and if so, what that other evidence might be.
MS JACKSON: Yes, I would like to call other evidence but also cross- examine witnesses. So, yes, that affidavit - there's other issues as well with those rules that I didn't have the time or the resources to go into.
MR ENRIGHT: So are you
MS JACKSON: That's a starting point. The affidavit I've provided to you is a starting point.
MR ENRIGHT: Yes, I hear what you say. Do you propose to call the witnesses yourself? Can you give us some - in terms of planning or in preparation, can you give us some idea of who those witnesses might be?
MS JACKSON: Not at this stage.
MR ENRIGHT: Do you have any idea of the number of witnesses you might propose to call?
MS JACKSON: One or two.
MR ENRIGHT: It's your submission that this is a matter - and please just confirm - this is a matter that in your view you need to call witnesses in order to properly put your objection, to put it that way. Am I right about that?
MS JACKSON: Yes.[13]
[13]Transcript of telephone conference on 17 March 2014; paragraphs 34 - 42
[28] And a little later:
MR ENRIGHT: I might just ask my - Ms Jackson, you've said you don't - you haven't said who your other witnesses might be. Do you know or do you have any sense of where they might be, whether they're in Victoria or some other state?
MS JACKSON: Victoria.[14]
[14]Ibid; paragraphs 50 - 51
[29] And in a subsequent exchange by Mr Brown addressing me:
MR BROWN: ... I am concerned that you've got to be making the decision without really knowing the details of what Ms Jackson is actually concerned about. If you had that information available to you, then you would be in a better position to determine whether a hearing is necessary or not, but that's similar to the issues that I've outlined in my correspondence.
[2014] FWCD 3522
MR ENRIGHT: Yes, and I have read that correspondence. Thank you, Mr
Brown.MS JACKSON: Can I just reply to that? My affidavit makes it quite clear, I believe, what issues are at the front of my mind about what I'm concerned about.
MR ENRIGHT: Yes.
MS JACKSON: It's not ambiguous going into this process about what I'm concerned about ...[15]
[15]Ibid; paragraphs 71 - 75
[30] Having considered what was put during the telephone conference, I determined that it was necessary to convene a hearing to enable Ms Jackson to lead the evidence she alluded to and allow the parties to make submissions in support of their positions. The parties were informed of my decision later that day and the matter was set down for hearing on 7 April 2014.
[31] On 18 March 2014, Mr Brown wrote to the FWC indicating his unavailability on 7
April 2014. The hearing date was vacated and the matter was relisted for hearing on 14 April
2014.
[32] On 11 April 2014, Ms Jackson wrote to me requesting an adjournment of the matter
because proceedings in another jurisdiction had been listed for 14 April 2014. A hearing date
after 28 April was requested.
[33] Ultimately, I granted Ms Jackson’s request for an adjournment and the matter was relisted for 28 April 2014. In so doing, FWC indicated to the parties that:
other than in the case of emergency, no further adjournments will be granted. Unavailability of counsel on the day will not be sufficient to obtain an adjournment. The Delegate is determined to conclude the matter - whether by
certifying the alterations in whole or part, or refusing to certify them - before
the end of May 2014.[16]
[16]Correspondence sent by the FWC at my direction on 11 April 2014; fourth paragraph.
[34] I also requested that the parties advise when they would be in a position to file any witness statements on which they intended to rely. Neither side filed any witness statements in response to that request, albeit Mr Brown had previously indicated that it was unlikely he would lead any witness evidence.
[35] Whilst the hearing was scheduled to commence at 10 a.m. on 28 April 2014, at 9.26 a.m. on that day, I received an email from Ms Jackson. Omitting the formalities, it stated:
I have been very unwell over the weekend and remain unwell. I am unable to attend today's hearing on account of illness.
I note that you informed me when this date was set that I would not be granted any further adjournment because of the tight time line associated with the Union elections. Accordingly (and notwithstanding that the proposed Rule
[2014] FWCD 3522
changes will govern the election if they are approved at any time prior to the
day on which the election is called), I am not seeking an adjournment.I am adapting a written outline of submissions that I was proposing to supplement orally at the hearing. I will have those submissions (and a number documents I rely upon) to you and Mr Brown by the middle of the day.
I apologise for any inconvenience that this causes.
[36] No medical certificate or other supporting evidence was attached to the email.
[37] When the allotted hearing time arrived, Mr M Irving of Counsel was present on behalf of the Union, along with Mr Brown. No representative was present on Ms Jackson’s behalf. Nor were there any other persons in the vicinity of the courtroom who identified themselves as the witnesses Ms Jackson had alluded to in the 17 March 2014 telephone conference.
[38] In the circumstances I called the matter on.
[39] Mr Irving made a submission which included the following:
MR IRVING: My preference is to proceed as follows: firstly, we note Ms Jackson has been given this opportunity to appear. She has put in an affidavit previously and an email setting out her concerns. Some of those concerns are quite specific, and we’ve addressed those. Some of them are extremely vague and she was given the opportunity to come along and call witnesses, what she intended. Obviously none are going to be called and, indeed, what she proposes in her letter is just put in written submissions.
The way I suggest we proceed is that I address you on a couple of the issues that Ms Jackson has raised and seek to satisfy you about those matters. Ms Jackson will then, according to her email, provide some document to you later on today. Our principal position is you shouldn’t read it, that’s she’s been given her opportunity. She’s had a shot. It’s done. We need to move on. The fall back position is this, you should read it. If there’s anything which causes you concern that makes you think, “Maybe I shouldn’t go ahead and certify these rules,” then you should call us or you should provide us with the document and give us an opportunity to respond to it.
I prefer not to go ahead and shoot in the dark as to the vague aspects of Ms Jackson’s concerns because we really don’t know what some of them are. We know what certain of them are and, if we can address them, but there has been some vague reference to section 142 and the suggestion that in some way two nominations are invalid and it’s so ambiguous that we really don’t know what we’re confronting there and we’d prefer not to try to mention arguments against ourselves and confront those. We’d prefer, if there is something of substance that needs to be addressed, then we’d prefer to see the document itself.17
[40] I generally accepted Mr Irving’s approach, noting that should I accept any material Ms
Jackson subsequently filed, I would allow the Union an opportunity to respond to any
[2014] FWCD 3522
concerns it raised. Mr Irving proceeded to address the specific points raised in Ms Jackson’s 4
February 2014 affidavit. I will return to the points made by Mr Irving later in this decision.
[41] The documents referred to in Ms Jackson’s 28 April 2014 email were not filed that day. Instead, Ms Jackson wrote to the FWC that afternoon stating that work on the “document had been disrupted by an important matter requiring an immediate response today and the need to attend to an essential family responsibility”18, that the document was not finished and that it would be emailed before the start of business the next day. An email containing an outline of submissions and facts (outline) and a hyperlink to a number of documents referred to in that outline, was received early in the morning on 29 April 2014. A statutory declaration attesting the truth of the factual assertions in the outline of submissions and facts was sworn on 13 May 2014 and received by the FWC on the same day.
[42] The nub of the argument which Ms Jackson makes in the 29 April 2014 outline can be
found in paragraphs 5, 8 - 13 and 45 - 48 of that document. It is of assistance to set them out
in full:
5. I deal first with the proposed Rule changes that will allow team tickets and
"above the line" voting. I contend that the proposed changes:
(i) will have the practical result that the operation of the Rules does not
comply with s.l41(1)(b)(iv);
(ii) will result in the HSU not meeting the standards set out in s.5(3)(a)
and (d); and(iii) will impose on members of the HSU, 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, are oppressive, unreasonable or unjust contrary to s. 142(1)(c) of the FW(RO) Act.
...
8. In any given case, the contentions in paragraph 5 may be evidenced or
established in two different ways:
Category A.
the contention may be evident from the text of the rule change without the need
to call evidence other than basic contextual evidence.
Category B
the rule change may appear regular and unremarkable on its face, however, when the objective matrix of facts and circumstances is considered, it is clear that the actual purpose and intent of the rule change (as manifested by the intent of the officials who had the carriage of proposing the rule changes to Council and obtaining Council's approval and the making of the application) mean that, as a matter or practical substance, the change will impose on members of the HSU, conditions, obligations or restrictions "that, having
[2014] FWCD 3522
regard to Parliament's intention in enacting this Act (see section 5) and the objects of this Act and the Fair Work Act, are oppressive, unreasonable or unjust" or otherwise contrary to the requirements of the FW(RO) Act.
9. I say that this is a case in category B.
10. It is vital that you appreciate that I accept that this is not a case falling into category A. This case is not concerned with knocking down the straw man that Mr Brown will undoubtedly seek to erect by having you confine your focus to category A. Let me repeat, I accept that the proposed Rule changes are not problematic on the face of the text, nor with the sort of simple factual context of the sort that motivated Mr Nassios to require a dilution of the voting rights of HSU East Branch when considering the application for rule changes in R2010/35 (branch membership numbers in conjunction with the text of the rule demonstrated that HSU East Branch would have excessive dominance if that Change was not required).
11. I focus on the rule change that will allow for "above the line voting" with
"team" tickets.
12. I recognise there is nothing intrinsically offensive about "above the line
voting" with team tickets. Again, this is not a case in category A.13. However, in the particular circumstances of the HSU, with the particular constellation of rules that it has, the re-introduction of "team" tickets and "above the line" voting is inimical to genuine and true democracy. Objectively determined on the evidence, it will in reality serve to entrench the power of people who are have been knowingly involved in Williamson's corruption- enabling and facilitating it and/or protecting it.
...
45. The Fair Work Commission is supposed to be concerned with matters of
substance rather than matters of form.46. You are supposed to be concerned with the substantial effects of the proposed rule changes when assessing them against the objects of the act and not the mere form considered by reference to some assumed state of regularity in the union. The substantial effect of the rule changes proposed by the union, in the particular circumstances of this union, will be to undermine genuine democracy in a material way and that is something that is inconsistent with the objects of the FW(RO) Act and should be rejected.
47. Most of the authorities that you may think are applicable will be cases that were dealing with arguments that fell into category A rather than category B. Those authorities are not inconsistent with the approach for which I contend - an approach that is concerned with the "equity, good conscience and substantial merits of the matter". To close your eyes to what I am contending would be to disregard the substantive import of the objects and provisions of the FW(RO) Act on which I rely.
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48. My affidavit evidence in the matter before Tracey J will contain material going to the bad faith of other of the current rule changes. I do not expect you to deal with those without that material.
[43] I note paragraphs 16 - 18, 22 - 23 and 25 - 26 of Ms Jackson’s outline. Those paragraphs refer to material produced, or to be produced, in two sets of Federal Court of
Australia proceedings involving the Union and with which Ms Jackson was, or is, involved.19
[44] That material is said to establish much of the “objective matrix of facts and circumstances” which make clear the “actual purpose and intent of the rule change” and which lead, as a matter of practical substance, to the alterations being contrary to the RO Act, per “Category B” referred to above. How to deal with the material referred to in paragraph [42] is a matter to which I shall shortly return.
[45] The document referred to in paragraphs 23, 25, 26 and 48 of the outline is an affidavit that Ms Jackson said she was in the process of finalising, for the hearing before Tracey J20. Ms Jackson undertook to “forward my affidavit material to you when it is completed later this week [i.e. by 2 May 2014]21. However, that material was not received by the FWC by 2 May 2014.
[46] By 7 May 2014, the Union had lodged submissions in reply to Ms Jackson’s outline. That reply dealt predominantly with Ms Jackson’s “Category B” objection. A copy of that reply was sent to Ms Jackson, along with a direction that Ms Jackson file a copy of the affidavit sworn for the Tracey J proceedings - as well as some other outstanding material - by the close of business on 9 May 2014. A copy of the affidavit was not filed by the close of business on 9 May 2014. Nor was there any record of any other contact with the FWC during that period.
[47] On 12 May 2014 the FWC again wrote to Ms Jackson, noting a lack of response to the email sent on 7 May 2014 and stating (with one exception which is not presently relevant)
that the matter would now be determined on the basis of material previously lodged22. Ms
Jackson replied on 13 May 2014. Inter alia, she stated:
I remind you that the Delegate is not presiding over an adversarial inter-parties hearing. He is exercising a statutory power and must be satisfied of certain matters. It is not for me to make out a case. I have raised various matters of substance. The Delegate's obligation to consider those matters has been activated. The factual material in my submission and its attachments is sufficient to make out the necessary factual foundation for my primary argument - unless the Delegate rejects my factual contentions as unreliable (and again I would note that I have a pretty good public track record on not making allegations unless they can be shown to be true)23
and
My affidavit material has not been completed because the HSU applied to amend their statement of claim in a manner that would force an adjournment... The Federal Court proceeding was adjourned and a new timetable ordered. I
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should not be obliged in this matter to disclose my affidavit material to Mr Brown before all the Union evidence in chief has been filed in that proceeding.
I object to your reliance on Mr Brown's affidavit in the absence of my affidavit material... if you wish to rely upon Mr Brown's affidavit, you should adjourn R500/2013 until after the Union's final evidence in chief in the Federal Court has been filed.24
[48] In light of Ms Jackson’s objection, I have not considered the affidavit sworn by Mr Brown for the proceedings currently before Tracey J in the Federal Court of Australia.
[49] I have considered whether the matter should be further adjourned whilst those Federal Court proceedings continued.
[50] As noted in paragraph [33] above, both the Union and Ms Jackson have been on notice for some time that I was determined to conclude the matter before the end of May 2014. Any alterations certified in the current matter would take effect on the date of certification25. Many of the present alterations, including a number of those objected to, pertain to the manner in which elections in the Union will be conducted. Generally, the rules in force on the date that nominations open are the rules that apply in relation to that election26. Nominations in the
next scheduled elections in the Union (and its branches) are due to open in early June 2014.
[51] On the one hand, the Union’s stated intention in transacting the alterations has been that they should apply in relation to the regular elections scheduled to commence in the second half of 201427. I am reluctant to frustrate the Union’s stated intention to enable largely unrelated proceedings to occur in another jurisdiction.
[52] On the other hand, Ms Jackson must be afforded procedural fairness which includes an opportunity to put her case.
[53] On balance, I decided not to grant an adjournment but to instead determine the matter without recourse to either Mr Brown’s affidavit or to the affidavit Ms Jackson intends to swear for the Federal Court proceedings before Tracey J. In my view, the chronology above demonstrates that Ms Jackson has been afforded a reasonable opportunity to put her case, including a reasonable opportunity to lead witness evidence in support of her assertions and to allow that evidence to be tested by cross examination. As Deane J stated in Sullivan v
Department of Transport:
... it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled [Also see Gauldron J in Re: Association of Architects of Australia; Ex parte Municipal Officers Association of Australia [1989] HCA 13; (1989) 63 ALJR 298 at 305.]28
[54] Therefore, I have not considered paragraphs 16, 17, 18, 23 and 24 of Ms Jackson’s
| outline. |
[2014] FWCD 3522
[55] I turn to the affidavit referred to in paragraph 22 of Ms Jackson’s outline. The FWC
confirmed with Ms Jackson that the reference to “1 July 2012” is a typographical error; the
relevant date is supposed to be 12 June 201229.
[56] That affidavit was sought to be tendered in proceedings in the Federal Court of Australia before Flick J in 2012.30 Attempts to have it included in the Court Book in those proceedings were apparently objected to on a number of grounds and the application to include it in the Court Book was ultimately withdrawn31. The affidavit was the subject of
some adverse comment by Flick J32. Clearly, its content has never been tested. In the circumstances of this matter I attach little weight to its contents, and those of the accompanying attachments.
Determination of the alterations
Against the background set out above, I now turn to the function conferred by s.159 of the
RO Act.
[57] Section 159 relevantly states:
159 Alteration of other rules of organisation
(1) An alteration of the rules (other than the eligibility rules) of an organisation does not take effect unless particulars of the alteration have been lodged with the FWC and the General Manager has certified that, in his or her opinion, the alteration:
(a) complies with, and is not contrary to, this Act, the Fair Work Act, modern
awards and enterprise agreements; and
(b) is not otherwise contrary to law; and
(c) has been made under the rules of the organisation.
(2) Where particulars of an alteration of the rules (other than the eligibility rules) of an organisation have been lodged with the FWC, the General Manager may, with the consent of the organisation, amend the alteration for the purpose of correcting a typographical, clerical or formal error.
(3) An alteration of rules that has been certified under subsection (1) takes effect on
the day of certification.
[58] In addition, Regulation 126 of the Fair Work (Registered Organisations) Regulations
2009 sets out procedural requirements in relation to an application for certification of rule
alterations.
[59] On the information contained in the notice, the supplementary declaration provided by Mr Brown on 23 April 2014 and the extract from the Union’s website which accompanied Mr Brown’s initial declaration, I am satisfied that the requirements of Reg 126 have been complied with and also that the alterations have been made under the rules of the organisation.
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[60] I make the following comments about the transaction of the rule alterations.
[61] First, I note that the rule alterations were transacted by the Union’s National Council. Ms Jackson suggested on a number of occasions that National Council Delegates voted as blocs, or on the basis of directions given to them33. Allied to this suggestion was an assertion that the National Council Delegates did not properly comprehend the matters on which they were voting34. Although not clearly articulated, it seems I am being asked to conclude that the votes cast in favour of the motions to alter the rules were not genuine. That was so either because the votes were not freely cast or because the National Council Delegates did not make informed decisions. In other circumstances, flaws such as these have compromised the validity of a vote35.
[62] There is no evidence that the Delegates were coerced into voting in a certain way. Ms Jackson points to rule 54(j) of the Union’s rules. Rule 54(j) allows a Branch Committee to instruct its National Council Delegates how to vote. Ms Jackson did not direct me to case law which states that a rule of this nature is ultra vires. Nor am I aware of any. An examination of the rules of organisations which are presently registered under the RO Act indicates that a number of organisations have rules in which the votes of branch based delegates to national committees may be directed by the branch. In any event, no evidence was presented that any Branch Committee exercised its power under Rule 54(j) in connection with the relevant resolutions. I am not prepared to conclude that the National Council Delegates did not freely vote to approve the resolution to alter the rules.
[63] In response to Ms Jackson’s assertion that the National Council Delegates did not comprehend, or were ill informed, about the alterations, Mr Irvine made submissions at the
hearing on 28 April 201436. Those submissions went to the process which preceded the
National Council meeting where the alterations were transacted. Ms Jackson did not present any evidence that impugned that process notwithstanding she had foreshadowed that she would present witnesses who could do so. Further, it appears that Ms Jackson was involved in that process, if only by correspondence. I am satisfied that the process undertaken by the National Council37 meant that its members were sufficiently apprised of the alterations to make an informed decision when the time to vote arrived.
[64] Ms Jackson’s attack on the manner in which the alterations were transacted must fail.
[65] The second issue I propose to address arises from an assertion Ms Jackson made in her 4 February 2014 affidavit. At paragraph 19, Ms Jackson asserts:
To the extent that union officials act to introduce an electoral system for the purpose, wholly or in part, of conferring on them as incumbents an electoral advantage in union elections, this constitutes action for an improper purpose and is beyond power.
[66] I accept that an alteration made for an improper purpose might be found to be beyond power. However, in this case there is insufficient evidence to support such a conclusion. I have already commented on some of the material in Ms Jackson’s outline. The remaining portion of the outline material has not been tested. It is general in nature rather than detailing specific conversations, or other events, to which Ms Jackson was privy and which would illustrate improperness of the action. Ms Jackson was provided with the opportunity to call other persons involved in the process of changing the rules however those witnesses were
[2014] FWCD 3522
neither identified nor called to give evidence at the opportunity provided by FWC. The contentions of fact in Ms Jackson’s affidavit are similarly untested. In the circumstances, I am not prepared to give Ms Jackson’s evidence determinative weight. This attack on the rule altering process has not been made out. It must also fail.
[67] Finally, Ms Jackson suggests that “Senior officers of the union have conducted the process of making the rule changes in secrecy, at least as it concerns my having knowledge... I have written repeatedly to Chris Brown... seeking access to National Executive records but these requests have been ignored”38 I accept that given the office Ms Jackson holds, this allegation, if made out, would be a serious matter.
[68] The Union responded to this point during the 28 April 2014 hearing39. I do not intend
to set out that response. Suffice to say, the actions attributed to Ms Jackson suggest she was
aware of the alterations and to some extent, involved herself in the process.
[69] Ms Jackson was forwarded a copy of the transcript of the 28 April 2014 hearing. No
response to the points made by the Union was received. In my view, Ms Jackson’s complaint
in paragraph [67] above is without substance.
[70] I turn next to the appropriate approach in determining whether the alteration complies
with, and is not contrary to, the RO Act, the Fair Work Act, modern awards and enterprise
agreements and is not otherwise contrary to law.
[71] In my view, the correct approach to interpreting the rules of organisations
commences by applying the ordinary principles of legal construction40. However, “the nature of the document and its purposes are [also] relevant considerations”41. Regard should
therefore be had to the fact that the rules will have been “drawn, more likely than not, by union officials more familiar with the practical affairs of industry than with the niceties or subtle nuances of language”42.
[72] It follows that when interpreting the proposed rules of the Union as a step towards fulfilling the task mandated by s.159(1)(a) and (b), I must consider the text of the alteration in the context of the rule being changed and the rules as a whole, albeit I should be aware that a rule may be drafted in a less refined manner than a statute. This approach is generally consistent with what Ms Jackson terms “Category A” in paragraph 8 of her outline.
[73] I do not believe that the enquiry Ms Jackson advocates in “Category B” provides the correct approach to the task contained in s.159 of the Act. Even if I am wrong in that conclusion, the materials provided by Ms Jackson did not establish a sufficient evidentiary basis to embark on a “Category B” type of enquiry in this matter.
[74] Although not bound by the rules of evidence, any findings of fact I make en route to reaching my decision must be based on logically probative evidence. In the current matter I:
attach little weight to the 12 June affidavit described in paragraphs [55] and [56]
above; note the fact that the foreshadowed affidavit referred to in paragraph 25 of Ms
Jackson’s outline was ultimately not produced;
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accepted Ms Jackson’s objection to me considering the affidavit Mr Brown
prepared for the Tracey J proceedings; and note the evidence contained in Ms Jackson’s outline and 4 February 2014 affidavit untouched by the above points is largely of a general nature and, importantly, untested.
[75] In the circumstances, there is an insufficient evidentiary basis to make the findings of
fact Ms Jackson contends. As a result, even if it were open to me to conduct an enquiry of the
type urged by Ms Jackson, it would be unproductive to do so in this instance.
[76] I turn to Ms Jacksons specific objections to the alterations.
[77] Ms Jackson states that:
Rule 88(e) of the HSU's rules requires that alterations to rule 88 be approved by the Branch Committee of Management of the relevant branch. In his declaration, Chris Brown does not describe any step to have the relevant
branch committees of management approve the branch rule changes that are
the subject ofR2013/500.43
[78] Similar circumstances arose in relation to Rule 88 of the unions rules in September 2013. In that instance, Rule 83 became Rule 88. On that occasion I stated:
Rule 75 outlines the general rule altering procedure for the Union; however, existing rule 83 contains an additional rule altering procedural requirement. Rule 83(e) states that rule 83 can only be ‘altered, amended or revoked by a resolution passed by not less than 70% of all members of Branch Committee’.3 In the notification before me, rule 83 has been renumbered due to the rearranging of the rules within Part E. In order to effect this renumbering, the Union has removed the rule and reinserted it into the rule book in its new location. The wording of the rule, excluding four internal references to ‘Rule 83’, remains unchanged and as such exactly replicates the current terms, language and obligations contained within rule 83. In my opinion, despite the consequential renumbering of rule 83 due to the substantial alteration of the other elements of Part E, rule 83 itself has not been altered. I am therefore
satisfied that the additional rule altering procedures contained in rule 83(e) do
not attract.44.
[79] In my view the current alteration is indistinguishable from that under consideration in September 2013. Ms Jackson’s attention was drawn to my earlier decision on 13 February
201445. No attempt has been made to distinguish the earlier decision or to argue it was
wrongly decided. I therefore apply it in the present matter. Ms Jackson’s objection must fail.
[80] I turn next to the alterations concerning the manner in which elections would be conducted in certain Branches, particularly to what is generally referred to as “above the line voting”, “team nominations’ or “team tickets”46. The alterations reintroduce team nominations in the Branches which for a time comprised the HSUEast Branch. Ms Jackson has objected to this alteration on a number of bases.
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[81] Broadly, team nominations allow a group of people to form a team and nominate, as that team, for number of offices within an organisation or branch. Alternatively, a person may nominate for an individual office. If a ballot is required in an election, a ballot paper is prepared. If team tickets are allowed the ballot paper will contain both team tickets and individual nominees. Frequently, although not always, the ballot paper is divided into two sections, similar to a Senate ballot paper. If so, teams will be grouped together in one section and individuals grouped together in the other. A voter may vote for individual candidates for the relevant offices or may vote for a team. Choosing the latter option means that the team member associated with each office automatically received a vote. Team nominations procedures exist in one form or another in the rules of a number of organisations registered under the RO Act. Team nomination provisions presently exist in the rules of the Union. They previously existed in the affected branches. They were not reinstituted by the Administrator once the HSUEast Branch was demerged.
[82] Ms Jackson concedes that:
I accept that the proposed Rule changes are not problematic on the face of the
text47
and
I recognise there is nothing intrinsically offensive about "above the line voting" with team tickets.48
[83] I agree with the concessions made by Ms Jackson. There is not, in my view, anything intrinsically offensive about "above the line voting" with team tickets. I am not aware of any case law to the contrary in relation to an organisation registered under the RO Act. I also agree with Ms Jackson that the proposed Rule changes are not problematic on the face of the text. However, that is not the end of the matter
[84] In paragraph [42] above, I set out an extract from Ms Jackson’s outline. In part, it described two approaches to my task under s.159, “Category A” and “Category B”. Ms Jackson made her concession on the basis that “Category A” did not apply to my present task but “Category B” did. In Ms Jackson’s view, the fact that the text appeared benign on its face was not determinative because, in line with “Category B”, “when the objective matrix of facts and circumstances is considered... the actual purpose and intent of the rule change ... mean that, as a matter or practical substance, the change”49 would be contrary to the Act.
[85] In paragraphs [72] and [73] I described what, I believe, is the correct approach to the
task under s.159(1)(a) and (b) of the RO Act. As noted, I am not attracted to the approach Ms
Jackson contends for in Category B.
[86] I note paragraphs 34, 36 and 37 of Ms Jackson’s outline. I am prepared to assume, without making any finding as to the veracity of Ms Jackson’s evidence, that one possible consequence of rules that make provision for team nominations could be that incumbents are favoured in elections.
[87] However, the mere fact that the manner of election might confer an advantage on an
incumbent is not sufficient to render the rules contrary to the FW Act, or to law, where the
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rules are “not problematic on the face of the text”. I agree with Delegate Carruthers who
recently stated:
It is not enough that a rule is capable of being misused in such a way as to operate unreasonably. Nor is it enough that a rule might give rise to an unintended, unreasonable consequence. To be incapable of certification under s.159, the rule must be oppressive, unreasonable or unjust on its face. I do not, however, consider that the proposed rules or any of them are oppressive, unreasonable or unjust on their face. If a rule is applied in a way which produces an oppressive, unreasonable or unjust result, relief is available to an affected member at that time.50
[88] Ms Jackson also relies on certain recommendations contained in a “Final Report on HSUEast” produced by Ian Temby QC and Dennis Roberston FCA.51 It appears that the report recommended against the reintroduction of above the line voting. This recommendation was accepted by the Administrator when drawing rules of the Branches of the Union which were reconstituted by the Federal Court upon the abolition of the HSUEast Branch.
[89] As I understand Ms Jackson’s submission, she believes the reintroduction of team nominations and above the line voting would lead to a less democratic manner of election than is currently the case and that I should refuse the alterations on that basis. This submission is misconceived. I have already stated that there is nothing on the face of the proposed rules that render them contrary to the Act. The fact that it might be argued that one formulation of a rule furthers Parliament’s intention, in enacting the RO Act52, to a greater or lesser degree
than another formulation is no reason to refuse certification, so long as the rule is capable of certification. There is a long line of authority which emphasises the “absence of any general authority conferred upon a Court to supervise the content of the rules of an organisation to impose what it may perceive to be a more “preferable, desirable or ideal” rule”53. Consistent
with this authority, I have previously stated that “it is not the function of the... Delegate under section 159 to put into effect its own opinions as to what is desirable in the way of union rules and union management.”54 Nothing has been put in this matter which would cause me to resile from that view. I reject Ms Jacksons’s objection to the above the line or team nomination related alterations to the rules.
[90] In her 4 February 2014 affidavit, Ms Jackson referred to alterations which she says “include major changes to the system of financial governance for the NSW, Victoria No 1 and Victoria No 3 Branches of the HSU. As a general proposition, I will object to these changes. These changes, in many cases, reverse the system for the financial governance the demerged branches established by rule changes by The Honourable Michael Moore pursuant to a scheme approved by the Federal Court.”55 Ultimately that objection was never particularised,
except in so far as it is said to reverse changes put in place by the Administrator.
[91] Two points should be made. First, there is nothing on the face of the relevant rules which would cause them to be incapable of certification under s.159 of the Act. That is sufficient to dispose of Ms Jackson’s objection “as a general proposition”. Secondly, to the extent that Ms Jackson’s opposition to the alterations is prefaced by the belief that the rules as altered are less desirable than the current rules, the conclusions in paragraph [89] above are apposite. Ms Jackson’s objection cannot be sustained.
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[92] In summary, I reject each of the objections that Ms Jackson raised in relation to the
alterations.
[93] Independent of Ms Jackson’s objections, the FWC examined the alterations in order to assist me to form a view about whether the rule changes could be certified under s.159 of the Act. A report setting out the results of that examination was forwarded to the Union and Ms Jackson on 11 April 2014. Each party was invited to respond to the issues raised
[94] The union responded by written submission on 24 April 2014. On 13 May 2014, Ms Jackson indicated that “I do not have the resources or the capacity to address the matters on
which my submission was invited in relation to issues raised by FWC with the HSU... I will
trust the delegate to scrutinise the HSU's response with an appropriately critical eye.”56
[95] As a result of the HSU's response, various issues raised by the FWC were resolved although other matters warrant further consideration.
[96] Rule 2(A)(g) forms part of the eligibility rules of the organisation; see the definition of
“eligibility rules” in section 6 of the RO Act. This alteration can only be given effect via an
application under section 158 of the RO Act. I have no power to certify the alteration.
[97] Proposed Rule 7(b) provides that on becoming or remaining a member of the Union, each member agrees that he or she appoints the Union as his or her agent for the purpose of negotiating and agreeing to terms and conditions of employment, subject to limited exceptions including any conferred by statute.
[98] The Union was informed that a rule similar to Rule 7(b) was considered by a Full Bench of the Australian Industrial Relations Commission under a legislative precursor to the RO Act. The Full Bench held that the rule was inconsistent with the legislation then in force. It directed the Industrial Registrar to refuse certification of the alteration57. FWC raised the concern with the Union an in response to an invitation to comment, the Union merely replied “Agreed”58.
[99] I have taken that response to be a concession that the Rule is not distinguishable.
[100] In my view, the appointment mechanism under proposed Rule 7(b) is inconsistent with the scheme of Division 3 of Part 2-4 of Chapter 2 of the FW Act. It is inconsistent to an extent sufficient to render it contrary to that Act. I must therefore refuse certification of that alteration.
[101] There is a tension between proposed Rule 10(k) and the combined operation of
proposed rules 10(l), 10(m), 11(k) and 12(a).
[102] The inconsistency between these provisions may cause uncertainty in the minds of
members as to their rights and obligations to such a degree that it leads rule 10(k) to impose an obligation or condition that was oppressive, unreasonable or unjust. That would lead to Rule 10(k) being contrary to subsection 142(1)(c) of the RO Act.
[103] Although the Union did not fully accept the construction of the rules in question
provided by the FWC, it did concede that the “rules are not a perfect model of clarity”.59 It
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continued “The proposed solution is that consent is not given to 10(k). That sub rule is
unnecessary and is likely to give rise to an ambiguity otherwise absent in the scheme.”60
[104] I agree with that analysis. In my view the ambiguity is apt to cause uncertainty to a degree which causes the rule to fall foul of s.142(1)(c) of the RO Act. Given the sub rule is unnecessary, the alteration can be severed from the remainder of the alterations. I refuse to certify the alteration to Rule 10(k).
[105] Proposed Rule 15(b)(i) permits a newly created office to be filled other than by
election. It is therefore contrary to the RO Act. It is not possible to fill a vacant office using the casual or extraordinary vacancy provisions of the rules unless the office has first been filled, in relation to each term of office, by election. That is because until the office has been
filled, it cannot be vacated and therefore cannot be filled as a causal vacancy61. I note that the
Union did not dispute this analysis.62
[106] Because there is no power to “blue pencil” the offending part of Rule 15(b)(i),
certification of the whole of that rule change must be refused.63
[107] Rule 12(c) acknowledges that the Branch Committee of Management may waive a
member’s annual contribution or any levy. Waiver in this context can only mean abandon or not claim those moneys. As a result, the condition precedent to becoming unfinancial set out in Rule 12(a) does not arise. It follows that a member whose annual contribution or levy has been waived must be a financial member and entitled to assume they hold the full rights of membership. This result is confirmed by Rule 12(c)(i).
[108] Consequently, Rule 12(c)(ii) imposes a condition or restriction on members covered
by Rule 12(c) which does not pertain to other financial members. The condition or restriction
is the inability to nominate for or hold office.
[109] The FWC invited the Union to comment about whether the condition or restriction
imposed by Rule 12(c) was oppressive, unreasonable or unjust within the meaning of subsection 142(1)(c) of the RO Act. The FWC was concerned the rule may be oppressive, unreasonable or unjust both because it limits the rights of some financial members but not others and also generally due to the restrictions it places on financial members of the union.
[110] The Union did not agree with the proposition advanced by the FWC. It stated:
First we start with the contention that “waive in this context can only mean abandon or not claim those moneys”. That is true, but it is a waiver subject to a condition. That is, the Union will agree not to have the contributions or levy recovered from the member if the member agrees to the condition set out in 12(c)(ii). Any waiver, statutory or contractual, can be subject to a condition. The real question as you’ve isolated is whether the condition (being the restriction on the ability to nominate or hold office) is reasonable or unjust.
In assessing its reasonability or injustice one of the relevant matters is that identified in Rule 11(d) – that any waiver that occurs only happens “at the member’s request”. The member is specifically requesting the waiver and, given the deemed knowledge of the rules, is specifically agreeing that he or she will not nominate for or hold any office.
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The evil that is sought to be avoided by 12(c)(ii) is this: a Branch committee of management agrees to waive the fees for all of its mates, or indeed all of its members, so that they can continue to stand for re-election even though they are not paying any Union fees. That would be unreasonable. The condition imposed by 12(c)(ii) on such a waiver is reasonable: if a member wants to hold office in this Union then he or she has to pay Union fees. If a member is too impecunious (or there is some special circumstance which justifies the waiver of your fees), then, if the member requests it, those fees can be waived. But the price that is paid is that the person does not hold office.
When drafting this rule one problem considered was whether a maleficent BCOM could waive the fees of a potential electoral rival and thereby render a challenger unable to stand. To avoid this problem rule 11(d) provides that waiver can only occur on request.64
[111] The submissions of the Union are not without merit. However, I am concerned that the rule which allows a member to seek waiver and the rule which sets out the repercussions of any waiver which are granted are not to be found together. There is no obligation for the Union to inform a member who is contemplating making a waiver application, what the full consequence will be. It is insufficient to rely on a member’s deemed knowledge of the rules. In my view, if the rules of the Union are going to afford different rights to one class of financial members, based on the member’s request, then this should be absolutely clear to any member contemplating making a waiver request. This is not so if the rule facilitating a waiver process and the rule dealing with the consequences are not side by side and there exists no other provision in the rule requiring the member to be made aware of the restrictions that follows a successful application. This is amplified where the right disturbed is one as fundamental as the right to nominate for, or hold office.
[112] For the reasons foreshadowed in paragraph [109] I refuse to certify the alteration to Rule 12(c)(ii). I note that I would be prepared to consider an application if an alteration such as 12(c)(ii) was accompanied by another rule requiring the Union to draw attention to all of the consequences of a successful waiver application, before such application was made.
Correction of typographical, formal or clerical errors
[113] On 24 April the Union’s Acting National Secretary gave consent, under subsection
159(2) of the Fair Work (Registered Organisations) Act 2009, for the Delegate to make various amendments to the alterations for the purpose of correcting typographical, clerical or formal errors. Accordingly the following corrections have been made:
The first appearing instance of the word “ceases” in the fourth line of proposed
Rule 10(j) will be changed to ‘cease’; The word “consists” at the conclusion of proposed Rule 11(a) will be changed to
‘consist’; The reference to Rule 79 contained at the end of Rule 22(e) will be changed to
Rule 78;
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The word “and” in Rule 80(b)(iii) will be changed to ‘an’; and The references in Rule 87(i)(vi) should be to ‘87(a), 87(e)(i) and 87(e)(ii)’
[114] Other than the exceptions set out above the alterations, in my opinion, 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. For the reasons above I refuse to certify the alterations to Rules 2(A)(g), 7(b), Rule
10(k), Rule 12(c)(ii) and Rule 15(b)(i)
DELEGATE OF THE GENERAL MANAGER
Printed by authority of the Commonwealth Government Printer
<Price code C, PR551082>
17 Transcript of hearing on 28 April 2014; paragraphs 94 - 96
18 Email from K. Jackson to M. Elliott dated 28 April 2014; first paragraph
19 NSD 621 of 2012 and NSD 735 of 2012 before Flick J and VID1042/2013 and NSD1601/2013 which are currently before
Tracey J
20 Outline paragraph 23; VID1042/2013 and NSD1601/2013 refer
21 Outline paragraph 25.
22 Although the Statutory Declaration referred to in paragraph [41] of this decision was ultimately accepted notwithstanding it
was not lodged when required
23 Email from K. Jackson to M. Elliott dated 13 May 2014; fifth paragraph
24 Ibid; sixth and seventh paragraphs
25 See s.159(3) of the Act..
26 See for instance: Beeson v Blayney - 8 FLR 292; Friend v Barnes - 15 FLR 184; Egan v Maher - 35 FLR 197
27 See for instance paragraph h) of the Declaration given by C. Brown on 23 April 2014.
28 (1978) 20 ALR 323 at 343
29 Email from K. Jackson to M. Elliott dated 29 April 2014; third paragraph
30 NSD 621 of 2012 and NSD 735 of 2012
31 Brown v Health Services Union [2012] FCA 644 (21 June 2012); paragraph 183.
32 Ibid.
33 See for instance Ms Jackson’s Outline at paragraphs 14, 15, 19; Email from Ms Jackson to Mr Enright dated 3 March
2014, fourth paragraph
34 See for instance Ms Jackson’s Outline at paragraphs 14, 19; 28(i); Email from Ms Jackson to Mr Enright dated 3 March
2014, fourth paragraph
35 See for instance Print T2319; Ross VP, Williams SDP, Smith C; 19 October 2000 at paragraph 20; Print L9066, Ross VP,
3 February 1995, [2011] FWA 1282; Roe C, 1 March 2011 at paragraph 16;
36 Transcript of hearing on 28 April 2014; paragraphs 108 - 136
37 See particularly ibid; paragraphs 126 - 129.
38 K. Jackson affidavit of 4 February 2014; paragraph 23
39 Transcript of hearing on 28 April 2014; paragraphs 115 - 118
40 See for instance R v Aird; Ex parte Australian Workers' Union (1973) 129 CLR 654 at 659.
41 Interpreting Trade Union Constitution Rules; J W Shaw QC; (1988) 62 Australian Law Journal 690
42 R v Aird; Ex parte Australian Workers' Union; Opcit
43 K. Jackson affidavit of 4 February 2014; paragraph 24
44 [2013] FWCD 5384; Mr Enright; 18 September 2013; paragraph [7]
45 Email from M. Elliott to K. Jackson and C. Brown dated 13 February 2014; final paragraph
46 K. Jackson affidavit of 4 February 2014; paragraphs 15 - 16; outline paragraphs 11, 30 - 43.
47 Outline paragraph 10
48 Ibid paragraph 12
49 Outline paragraph 8
50 [2012] FWAD 6715; Ms Curruthers; 14 August 2012 citing instance O'Sullivan v Australian Workers Union (1938) 39
CAR 323; Hay v Australian Workers Union (1944) 53 CAR 674; Allshorn v Stapleton (1984) 4 FCR 326 and later
referring to ss. 163 - 164A of the Act
51 K. Jackson affidavit of 4 February 2014; paragraph 14, Outline at, for instance, paragraph 42.
52 See s.5 of the RO Act
53 Brown v Health Services Union [2012] FCA 644; Flick J; 21 June 2012 at paragraph 86. I adopt his Honour’s analysis of
the authorities contained in paragraphs 82 - 86 of that judgement.
54 [2013] FWCD 5384; Mr Enright, 18 September 2013; paragraph 7.
55 K. Jackson affidavit of 4 February 2014; paragraph 25
56 Email from Ms Jackson to Mr Elliott dated 13 May 2014, final paragraph
57 Print Q6814; 29 September 1998; pages 9 - 11
58 Submission from the HSU dated 24 April 2014; paragraph 2
59 Ibid; paragraph 3
60 Ibid; paragraph 3
61 See Vardon v O'Loghlin [1907] HCA 69; (1907) 5 CLR 201; 20 December 1907
62 Submission from the HSU dated 24 April 2014; page 3
63 See Stapleton v Australian Theatrical Amusement Employees Association; [1983] FCA 209; 50 ALR 293 at 301 (31
August 1983)
64 Submission from the HSU dated 24 April 2014; paragraphs 10 - 13.
of National Secretary. I understand Ms Jackson has been absent from the position due to illness. Mr Brown, the Union’s
Senior National Assistant Secretary, has been acting in the office of National Secretary during this time.
to other prospective changes included in application - see paragraph 14 of the 4 February 2014 affidavit.
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