Independent Education Union of Australia
[2020] FWCD 4438
•16 october 2020
| [2020] FWCD 4438 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Independent Education Union of Australia
(R2020/119, R2020/135)
| MURRAY FURLONG | MELBOURNE, 16 october 2020 |
Alteration of other rules of organisation.
On 12 August 2020 and 1 September 2020, the Independent Education Union of Australia - Queensland and Northern Territory Branch (IEUA) lodged with the Fair Work Commission a notice and declaration setting out particulars of its Branch rules. These alterations were given matter number R2020/119. Further particulars about the rule alteration process were provided on 4 September 2020.
On the information contained in the notice and subsequently provided, I am satisfied the alterations have been made under the rules of the organisation.
The particulars set out alterations to Branch Rule 10 – Elections of Branch Executive and Officials.
The alterations remove the requirement for an advertisement calling for candidates to nominate for election to office in the IEUA to be placed in a regular publication of the associated body, the Queensland Independent Education Union of Employees. The IEUA submitted that the associated body no longer has a regular publication.
The alterations also remove the requirement for the election for Branch Executive and officials to be completed by 17 October in the year that the election is to be held. In addition, the alterations remove the need for the publication of advertisement of the election date to be in the first two weeks of August.
Finally, the alterations modify when the term of office for a Branch Executive member commences. The successful candidates are proposed to take up office seven days following the declaration of a ballot. Currently a Branch Executive member’s term would commence from 31 October of the year of the election. A Branch Executive member will now also remain in office till noon on the seventh days after their successor is announced.
Intention of alterations
The IEUA lodged with their application a submission which outlined the reasons for the proposed alterations. IEUA submitted that they had been advised by the Australian Electoral Commission (AEC) that due to the COVID-19 pandemic, the AEC is unable to assist in the conduct of elections until at least 30 September 2020. The AEC noted that many unions have the capacity in their rules to allow the incumbents to remain until an election can be conducted. The IEUA submitted that their current rules do not allow this to happen and require elections to be completed by 17 October 2020. According to the IEUA submission, the alterations are aimed to remove the defined date of elections and insert provisions to allow the persons currently elected to remain in office until such time that their successors can be elected.
Holding over provision
On its face, the proposed alteration to Branch Rule 10 appears to allow Branch Executive Members to have a team of office longer than 4 years which would be contrary to subsection 145(1) of the Fair Work (Registered Organisations) Act 2009 (the Act), which requires:
The rules of an organisation must, subject to subsection (2) provide terms of office for officers in the organisation of no longer than 4 years without election.
This alteration would therefore also raise questions in relation to subsection 159(1) of the Act which requires:
- 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 been certified that, in his or her opinion, the alterations:
(a) complies with, and is not contrary to, this Act, Fair Work Act, modern awards and enterprise agreements; and
(b) …
The statutory predecessor to subsection 145(1) of the Act, subsection 199(1) of the Workplace Relations Act 1996, has previously been construed by the Court as being concerned with the form of the rules of an organisation, not with the possible but unintended results of their application or non-application. See Allshorn v Stapleton[1] and Marko v Fegan[2]. I see no reason to depart from this interpretation.
The IEUA submitted as part of their lodgment materials that the rule amendments are intended to clarify that incumbents will remain in office until such time as elections can be held and their successors have been elected.
It therefore appears that this possible extension of the Branch Executive members term of office is intended to be a ‘holding over’ period.
The ‘holding over’ principle, whereby an elected office holder continues to remain in office till his successor has been elected was endorsed by Woodward and Northrop JJ (with whom Smithers ACJ agreed) in Allshorn[3] who said:
The provisio that the retiring office holder continues in office until his successor has been elected obviously is sensible to assure that, if an election is delayed, there is no interregnum. Such a provision is in keeping with both the letter and spirit of the Act.
This sentiment was later upheld by Merkel J in Marko v Fegan[4]. It was also noted in both matters that the inclusion of a ‘holding over’ does not mean that a person is ‘elected’ to hold office for an additional period of uncertain duration. The IEUA Branch Rules clearly state that the term of office for the Branch Executive member is to be four years. The fact that in some situations the term may continue beyond the four-year period does not result in a contravention of the Act.
I am satisfied that these alterations are not contrary to subsection 145(1) and therefore this alteration is not contrary to the Act as required by subsection 159(1) of the Act.
Presumption against retrospectivity
According to the IEUA’s submission as part of their lodgment materials, the alterations are intended to apply to the current Branch Executive members.
There is a rebuttable resumption that a rule alteration cannot retrospectively increase a term of office once an election has taken place.
As I recently discussed in The Australian Industry Group[5], the former Commonwealth Industrial Court considered whether rules that increase the length of office apply to officers elected prior to the amendment or only to those elected after the alteration is certified.
In Higgins v McGrane[6], the Full Court stated that “[t]he question must in the ultimate analysis be one of intention”.
Similarly, in Beeson v Blayney[7], Joske J stated:
In any event, in my view there is a prima facie principle of construction that unless it appears expressly or by implication in rules as amended that they are intended in their amended form to apply to past matters or events, including matters commenced before but not completed at the time of the amendment, the amendments do not apply to the part or uncompleted matters.
In a later matter before the Federal Court of Australia[8], Gray J stated:
It is clear that the presumption against retrospectivity may apply to the rules of an organisation. As Spicer CJ and Eggleston J said in Davis v Pulp and Paper Workers Federation of Australia (1963) 8 FLR 277 at 280-281:
“The rule of construction again retrospectivity operation which applies to statues does not, of course, directly apply to the rules of an organisation. But the rule applicable to statutes is based on the presumption that the legislature does not intend what is unjust (see Doro v Victoria Railways Commissioners [1960] VR 84 at 86), and somewhat similar consideration must apply to the construction of the rules of an organisation such as this, particularly where the injustice of the rule may be a statutory ground for invalidity.”
Their Honours went on to hold that injustice would be involved in the application of a rule retrospectively in that case. The presumption against retrospectivity may be overcome by clear words, or may held not to apply in the absence of harsh effects or interference with vested interests or accrued rights, see Doro v Victorian Railway Commissioners [1960] VR 84 at 86. (my emphasis).
On 31 August 2020, Fair Work Commission staff bought to the IEUA’s attention that alterations proposed in application R2020/119 may not operate as the IEUA intended, because the language used was not sufficient to displace the presumption against retrospectivity.
In response, the IEUA lodged with the Fair Work Commission a notice and declaration setting out particulars of a further alteration to Branch Rule 10 on 1 September 2020. This alteration was given matter number R2020/135.
On the information contained in the notice, I am satisfied the alteration in R2020/135 has been made under the rules of the organisation.
The alteration in R2020/135 was clearly made as a direct consequence of the discussions between the IEUA and the Commission’s staff on 31 August 2020. Having regard to the submissions provided by the IEUA in R2020/119, the alterations to Branch Rule 10 were always supposed to apply to the current terms of the relevant offices. The alterations to Branch Rule 10, taken together, clearly articulates that intention.
The alterations do no have harsh effects or interfere with vested interests or accrued rights. Nor do the alterations impose an oppressive, unreasonable or unjust condition upon members or applicants for membership within the meaning of subsection 142(1)(c) of the Act.
The alterations to allow the current Branch Executive members to remain in office till their successors can be elected is a rational and proportionate response to the circumstances that the IEUA find themselves in. Enabling Branch Executive members to remain in office in order to postpone conducting elections until assistance can be provided by the AEC and to prevent an interregnum is reasonable and sensible. I note that if the current Branch Executive were unable to remain in office the IEUA would have an interregnum period for an indeterminant amount of time till elections could take place.
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
[1] (1984) 2 FCR 236
[2] [2000] FCA 1016
[3] (1984) 4 FCR 236; Woodward and Northrop JJ at 238
[4] [2000] FCA 1016; Merkel J at 17
[5] [2020] FWCD 3662
[6] (1961) 5 FLR 82; Spicer CJ, Dunphy, Eggleston JJ at 85
[7] (1966) 8 FLR 292; Spicer CJ, Joske, Eggleston JJ, per Joske J at294
[8] Re Mellor; Re Federated Liquor and Allied Industries Employees Union of Australia ((1987) 17 FLR 120; 18 IR 350)
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