Independent Education Union of Australia

[2014] FWCD 8562

[2014] FWCD 8562

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Independent Education Union of Australia
(R2014/254)
MR ENRIGHT	MELBOURNE, 23 DECEMBER 2014
Alteration of other rules of organisation.

[1]        On 21 October 2014 the Independent Education Union of Australia lodged with the

Fair Work Commission a notice and declaration setting out particulars of alterations to the

rules of the Independent Education Union of Australia.

[2]        The particulars set out alterations to rules 6, 7 and 12 of the federal rules of the

Independent Education Union of Australia.

[3]        The alterations to rule 12 have the effect of abolishing the Independent Education

Union of Australia Tasmanian Independent Schools Teachers Association (the TISTA

Branch), consisting of members employed as teachers in Tasmanian independent schools, and

providing that members in Tasmania and Victoria will belong to the Victoria Tasmania

Branch. The alterations also delete a provision that branches have full autonomy in matters

concerning the federal industrial relations system. The alterations to rules 6 and 7 delete rules

relating to “associated bodies” which, amongst other things, allow for arrangements whereby

defined state unions can apply for membership of the organisation on behalf of members who

are eligible to join both unions. Those rules also allow such members to be deemed financial

members of the organisation where they pay fees to the state union and provide for the state

union to pay an amount to the organisation calculated by reference to the number of joint

members.

[4]        On the information contained in the notice, I am satisfied the alterations have been

made under the rules of the organisation.

[5]        Following an examination of the alterations, staff of the Fair Work Commission (the

Commission) raised concerns that the alterations to rules 6 and 7 may have an oppressive,

unreasonable or unjust effect on members of the organisation if they result in members who

currently pay membership fees to a state association unknowingly becoming unfinancial.

These concerns were communicated to the organisation and the Federal Secretary

subsequently requested that the amendments to rules 6 and 7 be held in abeyance at this time

to allow the organisation to seek legal advice. The Federal Secretary has undertaken to

communicate further with the Commission once this advice has been received.
[2014] FWCD 8562

[6]        I note the organisation’s concern that the alterations to abolish the TISTA Branch

proceed as a matter of urgency. As such, I have decided to expedite consideration of the

alterations to rule 12. I will consider the remaining alterations in due course.

[7]        Rule 12 sets out the respective branches of the union. The TISTA Branch is removed

from rule 12(b), which lists the branches of the organisation. Rule 12(a) currently provides

that there shall be “a Branch for members who are employed as teachers in Tasmanian

Independent Schools, a Branch for all other members in Tasmania and members in Victoria.”

As amended, the rules provide that there shall be a “Branch in Tasmania and Victoria.” Thus

the effect of these alterations is that, upon certification, members of the TISTA Branch will

become members of the Independent Education Union of Australia Victoria Tasmania

Branch.

[8]        Another effect of the alterations is the truncation of the terms office of TISTA Branch

Executive members. Rule 7(d)(i) of Appendix A of the federal rules provides that the TISTA

Branch Executive shall consist of five officers. However, I note that only the offices of

President and Secretary were filled at the time the alterations were lodged. Those office

holders were serving a three year term, due to end in 2016.

[9]        Following correspondence from staff of the Commission, the Federal Secretary lodged

a declaration from the President of the TISTA Branch, stating that he understood the

organisation was altering its rules and consenting to the truncation of his office on the TISTA

Branch. He also consented to the truncation of his offices on the Federal Executive and

Federal Council, on which he served as TISTA Alternate Delegate and TISTA Delegate

respectively. A declaration was also received from the Secretary of the TISTA Branch, but it

appears to have been signed in her capacity as an office holder of a state-registered

association known as The Tasmanian Independent Schools Teachers Association.

[10] Along with the office holder declarations, the Federal Secretary submitted

correspondence explaining that the TISTA Branch is a small branch of the organisation in

which the office holders have acted in an honorary capacity and have found it difficult to meet

the reporting requirements of the Fair Work (Registered Organisations) Act 2009. As a result,

the office holders and members of the TISTA Branch have determined that it is in the best

interests of the membership to amalgamate with the Victoria Tasmania Branch. This will

enhance the organisation’s compliance with legislative requirements and provide members

who currently belong to the TISTA Branch with access to the dedicated resources available in

the Victoria Tasmania Branch.

[11]      In considering the application, I note previous decisions which articulate the following

principles pertaining to the abolition of branches and truncation of offices:

 Provided it complies with the requirements of the Act, the regulations and its rules,

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an organisation has the right to mould its internal structures as it sees fit.

 An elected office may be abolished during the term of an incumbent provided such

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abolition is effected in accordance with the rules and is bona fide.

 Alterations that seek to abolish an office during its term or a branch must not have an

oppressive, unreasonable or unjust effect on members or applicants for membership

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(in the plural).

[2014] FWCD 8562

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[12] I also refer to the decision Health Services Union, in which Delegate Nassios stated

that it has been the practice of this office to seek from officers whose term of office are

abolished mid-term, declarations as to whether they understand the effect of the alterations

and whether they support the alterations. In particular, I refer to Delegate Nassios’ statement

that declarations play a key role in determining whether the truncation of a term is bona fide

and whether or not it may be oppressive, unreasonable or unjust under s.142(1)(c) of the RO

Act.

[13]      It is my opinion that the abolition of the TISTA Branch is a bona fide exercise to

promote the interests and objects of the organisation. I accept that the truncation of the terms

of the TISTA Branch offices is a necessary consequence of those changes. I also accept that

the truncation of these offices does not have an oppressive, unreasonable or unjust effect on

members or applicants for membership. The purpose of the truncation is to enhance the

organisation’s ability to meet its obligations under the RO Act and to provide all members in

Tasmania with access to the resources available in the Victoria Tasmania Branch. The

purpose is not to disenfranchise those members, or discriminate against them in some other

way.

[14]      The Federal Secretary has lodged with the Commission a declaration from one of the

two Branch Executive members, who confirms that he is aware of the alteration of the rules of

the Association, the effect of truncating the term of his respective offices and that he consents

to those changes. I do not regard it as fatal to the application that the Branch Secretary made a

declaration in the incorrect capacity.

[15]      I am therefore satisfied that the truncation of the terms of the office of the TISTA

Branch Executive members has been effected in accordance with the rules of the organisation,

is bona fide and does not have an oppressive, unreasonable or unjust effect on members or

applicants for membership within the meaning of s.142(1)(c) of the RO Act.

[16]      I must now turn my mind to whether or not the alterations to rules 6 and 7, which will

be considered in due course, are severable from alterations to rule 12. In reaching my

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decision, I refer to the case In Re Food Preservers’ Union of Australia,	in which the question
of severing rules was considered. In their decision, the majority held that:

....where an organisation has made alterations to a number of its rules, each rule and

alteration being completely independent of any other rule or alteration, the Registrar

would be free to give his certificate with respect to some of those rule alterations and

to refrain from giving his certificate with respect to others. On the other hand, where

alterations to rules are dependent upon other alterations to rules, difficulties arise

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where the certificate is given to some of the alterations and not to others.

[17]      Their Honours go on to note:

There would need to be a full examination of all the rules to ascertain whether the

meaning and effect of the rules to which the certificate had been given and had been

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altered or modified by the fact that some rules have not come into effect.

[18] The question of severability therefore turns upon whether or not the alterations to rules

6 and 7 can be regarded as completely independent of the alterations to rule 12. I need to be
[2014] FWCD 8562

satisfied that the removal of those alterations would not affect the meaning or effect of the

other alterations.

[19]      It is my opinion that the amendments to rules 6 and 7, which remove rules allowing

for certain arrangements with associated state bodies, have no effect on the meaning of the

amendments to rule 12, which abolish the TISTA Branch of the organisation and delete a

provision that branches have full autonomy in matters concerning the federal industrial

relations system.

[20]      In my opinion, the alterations 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.

DELEGATE OF THE GENERAL MANAGER

1

Imlach v Daley [1985] FCA 13; (1983) 7 FCR 457.

2

Majority in Saint v Australian Postal and Telecommunications Union and Others (1976) 30 FLR 393.

3

Roughan v Australasian Meat Industry Employees’ Union (1992) 36 FCR 536.

4

[2010] FWAD 3897.

5

(1988) 79 ALR 138.

6

Re Food Preservers’ Union of Australia and Another (1988) 79 ALR 138 per Northrop & Ryan JJ at 145.

7

Ibid at 145.

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