Health Services Union

[2013] FWCD 5384

[2013] FWCD 5384

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Health Services Union
(R2013/68)
MR ENRIGHT	MELBOURNE, 18 SEPTEMBER 2013
Alteration of other rules of organisation.

[1] On 25 June 2013 the Health Services Union lodged with the Fair Work Commission a

notice and declaration setting out particulars of alterations to the rules of the Health Services
Union (the Union).

[2] The particulars largely provide for the replacement of Part E which incorporates existing rules 81 through 89, however rules 83 and 89 have only been renumbered, and the consequential renumbering of rule 90 of the rules of the organisation. Part E of the rule book was certified on 21 August 2012. The rules were lodged by the Administrator of the Union to strengthen the financial accountability and good governance of the HSU NSW, Victoria No.1 and Victoria No.3 branches.[1] At the time, the delegate of the General Manager of Fair Work

Australia (as the Fair Work Commission was then known) noted that the terms reflected the wording of the Fair Work (Registered Organisations) Amendment Act 2012 (the Amendment Act).[2]

[1]See the decision of Delegate Carruthers on 21 August 2012, [2012] FWAD 6936 and for the appointment of the

[2][2012] FWAD 6936 at paragraph 57.

[3] The alterations before me were also made for the purpose of complying with provisions of the Amendment Act. In particular, the alterations provide for the extension of the requirements of the Amendment Act to all branches of the HSU and the Union as a whole. In many respects the proposed rules are broader than the existing rules and frequently exceed the minimum requirements of the Amendment Act. The proposed rules also provide for administrative processes to implement the required disclosures and deem that a breach of certain provisions of Part E is to be considered a ‘substantial breach of the rules’. I note that the likely effect of this deeming provision is to attract the operation of rules 37 and 64 concerning the removal of officers.

[4] 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

[2013] FWCD 5384

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.

[3]For a discussion of this requirement please see [2012] FWAD 6936 at paragraphs 61-67.

[5] On the information contained in the notice and the additional supplementary

declaration provided by the National Secretary on 20 August 2013, I am satisfied the
alterations were made in accordance with the rules of the organisation.

[6] Part E also contains the renamed ‘Finance Committee’ rule. Introduced into the rules by the Administrator of the Union, the rule establishes a body which prepares the budget, examines financial statements and monitors and protects the funds and property of the branches. The rule, amongst others, has been the subject of numerous discussions involving the Regulatory Compliance Branch as the Union has sought to align its rules with best financial practice. However, the ‘Finance Committee’ rule was drafted prior to these meetings at which it was acknowledged that it may not reflect best financial practice.

[7] It has long been established that the rules of an organisation ‘comprise the compact between its members’[4]and that subject to the ‘constraints and restrictions [imposed by the Act], the content of the rules of a registered organization is primarily a matter for the members’.[5] I agree that it is not the ‘function of the Court [or 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.’[6]As such, there is no provision in sub-section 159(1) which prevents certification. Nonetheless, while I find that the rule in its present form is certifiable, I anticipate that as a result of the substantial internal review of the rulebook currently underway, the rule may be redrafted to better reflect the Union’s drive towards greater accountability and transparency.

[4]Roots v Mutton and Others (1978) 28 ALR 439 at 441.

[5]Municipal Officers’ Association of Australia v Lancaster (1981) 37 ALR 559 at 589.

[6]Thornton v Mackay (1946) 56 CAR 561 at 590.

[8] On 12 September 2013, the Commission received consent from Lloyd Williams, Senior National Assistant Secretary and current Acting National Secretary, under subsection 159(2) of the Fair Work (Registered Organisations) Act 2009 (the RO Act), for me to make various amendments to the alterations for the purpose of correcting typographical, clerical or formal errors. Accordingly I have made the following corrections:

	In proposed rule 83(h)(ii)(B) a reference to 83(b)(i) has been amended to 83(c)(i);
	In proposed rule 84(c)(i) the word ‘of’ has been inserted between ‘identity’ and ‘each’;
	In proposed rule 85(i)(iii) a reference to 85(g) has been amended to 85(h); and
	In proposed rule 86(a)(i)(B) a reference to ‘the Branch’ has been amended to ‘a branch’.

[2013] FWCD 5384

[9] The Amendment Act[7]provides that alterations to rules of an organisation for the purpose of making provision as required by the Amendment Act can be certified by the General Manager during a transition period which commenced on 29 June 2012. Any alteration to rules that is certified during the transition period, however, does not take effect until the date of certification or the commencement of Part 2 of Schedule 1 to the Amendment Act, whichever occurs later. Part 2 of Schedule 1 to the Amendment Act commences on 1 January 2014.[8]

[7]See Item 38 of Schedule 1 to the Amendment Act.

[8]See Section 2 of the Amendment Act.

[10] In my opinion, the alterations comply with and are not contrary to the Fair Work (Registered Organisations) Act 2009, the Amendment 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 RO Act as modified by item 38 of Schedule 1 to the Amendment Act.

DELEGATE OF THE GENERAL MANAGER

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Administrator and the requirement to “strengthen the financial accountability and good governance” see Flick J’s

decision of 21 June 2012, Brown v Health Services Union [2012] FCA 644.