Independent Education Union of Australia
[2018] FWCD 1521
•14 MAY 2018
| [2018] FWCD 1521 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Independent Education Union of Australia
(R2018/45)
| MURRAY FURLONG | MELBOURNE, 14 MAY 2018 |
Alteration of other rules of organisation.
On 13 March 2018 the Independent Education Union of Australia (the Union) lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to its rules. Further information was provided by the Union’s Federal Secretary, Christopher Watt, on 6 and 10 April 2018.
The particulars set out alterations to rules 8, 17 and 19. The alterations reserve a proportion of offices on Federal Council for women. Each Branch elects a number of Delegates to Federal Council, depending on how many members it has. The alterations provide that if a Branch’s membership is more than 50% women, not less than 50% of the Delegates elected to represent that Branch must also be women. This quota will apply to the filling of casual vacancies, and where further nominations are sought because insufficient nominations have been received to fill available offices.
On the information contained in the notice, I am satisfied the alterations have been made under the rules of the organisation.
In the declaration accompanying the particulars of alterations, Mr Watt submitted:
4. In seeking to make this Rule change the Independent Education Union of Australia is mindful of both the Sex Discrimination Act 1984 and the Fair Work (Registered Organisations) Act 2009 in relation to sex discrimination.
5. The membership of the Independent Education Union of Australia has historically and continues to reflect female density of the organization in excess of 75% which is also reflective of the education industry that members work within.
6. In considering the Rule change the Independent Education Union of Australia Federal Council believed that the change that would reserve office for women does not discriminate on the basis of sex because the different treatment was relevant and appropriate to the object of increasing female participation, particularly in light of the female/male membership density and industry profile.
7. The Independent Education Union of Australia Federal Council believes that the Rule is consistent with earlier decisions of the Fair Work Commission, including the 10 November 2017 decision in relation to the Association of Professional Engineers, Scientists and Managers (R2017/148).
8. Further, the Independent Education Union of Australia Federal Council notes that the Sex Discrimination Act 1984 (SDA) allows for under section 7D - Special measures intended to achieve equality providing that : (1) A person may take special measures for the purpose of achieving substantive equality between: (a) men and women; or ... (2) A person does not discriminate against another person under section 5, 5A, 5B, 5C, 6, 7, 7AA or 7A by taking special measures authorised by subsection (I).
9. The Independent Education Union of Australia Federal Council contends that the best interests of the union membership would protected by the proposed rule change to seek to progress substantive equality in the organization and its supreme governing body.
Mr Watt’s submissions indicate that although the majority of the Union’s members are women, this is not reflected in its governing structure. The alterations seek to advance substantive equality by ensuring that the composition of the supreme governing body more closely reflects the Union’s membership.
As I have previously discussed in Construction, Forestry, Mining and Energy Union[1] (CFMEU) and The Association of Professional Engineers, Scientists and Managers, Australia[2] (APESMA) a rule which reserves offices for women must not:
· Impose on applicants for membership, or members, of the organisation, conditions, obligations or restrictions that are oppressive, unreasonable and unjust (see subsections 142(1)(c) and 159(1)(a) of the Fair Work (Registered Organisations) Act 2009 (RO Act)).
· Discriminate between applicants for membership, or members, of the organisation on the basis of sex (see subsections 142(1)(d) and 159(1)(a) of the RO Act).
· Be otherwise contrary to law (see subsections 142(1)(a) and 159(1)(b) of the RO Act). The Sex Discrimination Act1984 is relevant to this consideration.
Oppressive, unreasonable or unjust
In considering whether the rules impose conditions, obligations or restrictions that are oppressive, unreasonable or unjust, I have taken into account Parliament’s intention in enacting the RO Act, as set out in section 5. Relevantly, the RO Act is designed to:
(a) ensure that employer and employee organisations registered under this Act are representative of and accountable to their members, and are able to operate effectively; and
(b) encourage members to participate in the affairs of organisations to which they belong; and
(c) encourage the efficient management of organisations and high standards of accountability of organisations to their members; and
(d) provide for the democratic functioning and control of organisations…[3]
The rules in question are designed to ensure that the Union is representative of its members. They are also designed to encourage women, who constitute the majority of members, to participate in its affairs. Although the rules restrict the ability of males to be elected to office, this is not necessarily inconsistent with the principle of democratic functioning and control. Ryan J observed in Pillar v Building Workers Industrial Union of Australia:
In my view, the reservation of places on a committee of management for particular categories of members does not, of itself, infringe, or discourage the democratic control of a committee of management. That is particularly true, where, as here, all members of the body are entitled to vote to fill the office for which there is a restricted candidature. Of course, there may be extreme cases where the number of offices for which candidature is restricted is out of all proportion to the numbers of persons entitled to the benefit of the restriction, or where a significant section of the membership is precluded from candidature altogether…[4]
The restriction in this case only applies where a Branch’s membership includes more than 50% women. This ensures that it remains proportionate to the number of persons entitled to benefit from it. Noting that the alterations are broadly consistent with, and not contrary to the objects set out above, I find that although the alterations impose a condition or restriction upon some members, it is not oppressive, unreasonable or unjust within the meaning of the RO Act.
Discrimination between applicants for membership, or members, of the organisation on the basis of sex
The RO Act provides little guidance as to what will constitute discrimination contrary to subsection 142(1)(d).[5] However, adopting the substantive definition of discrimination advanced by Gaudron J in Street v Queensland Bar Association,[6] the relevant question is not merely whether the rule treats members differently, but whether that different treatment is relevant and appropriate to the object to be attained. In this instance, having regard to Mr Watt’s submissions, I find that the rules do not discriminate on the basis of sex because the different treatment is relevant and appropriate to the object of advancing substantive equality within the Union’s governing structure.
Otherwise contrary to law
In CFMEU and APESMA, I found that the rules did not contravene section 19 of the Sex Discrimination Act 1984 because they constituted a special measure taken “for the purpose of achieving substantive equality” within the meaning of section 7D. I accept that the rules currently before me likewise constitute a special measure within the meaning of section 7D and are not otherwise contrary to law.
On 10 April 2018, Mr Watt gave consent, under subsection 159(2) of the RO Act, for me to make an amendment to the alterations for the purpose of correcting a typographical, clerical or formal error. Accordingly the following correction has been made:
· In proposed rule 8(c)(ii), the word “each” has been replaced with “the” where it appears between “for” and “Branch delegation”.
In my opinion, the alterations comply with and are not contrary to the RO 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.
DELEGATE OF THE GENERAL MANAGER
[1] [2017] FWCD 6015.
[2] [2017] FWCD 4034.
[3] See RO Act, s.5(3).
[4] [1994] AILR 249.
[5] See discussion in APESMA at [35].
[6] (1989) 168 CLR 461.
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