Independent Education Union of Australia-Victoria Tasmania Branch

[2015] FWCD 8168

[2015] FWCD 8168

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Independent Education Union of Australia
(R2015/238)
MR ENRIGHT	MELBOURNE, 7 DECEMBER 2015
Alteration of other rules of organisation.

[1]        On 30 October 2015 the Victoria Tasmania Branch of the Independent Education

Union of Australia (the Branch) lodged with the Fair Work Commission (the Commission) a

notice and declaration setting out particulars of alterations to the rules of the Branch.

[2]        The particulars set out alterations to rules 13 and 15 of the rules of the Branch.

[3]        The alterations change the composition of the Branch Committee of Management by

creating an office representing members in Tasmania, renaming two Branch Committee of

Management positions representing support staff and by abolishing the office of Assistant

Secretary (Tasmania). The office is currently vacant. The Branch provided a resignation letter

from the last holder of the office; the resignation took place prior to the transaction of the

alterations.

[4]        The following principles are relevant to the restructure of organisations:

 an organisation has the right to structure itself as it sees fit – [Williams v Hursey

(1959) HCA 51, 103 CLR 30];

	however, if an organisation seeks to abolish an office mid-term the abolition must
be effected in accordance with the rules and must be bona fide [majority in Saint v
Australian Postal and Telecommunications Union & Ors (1976) 13 ALR 649];
	in addition, any abolition of office must not have an oppressive, unreasonable or
unjust effect on members or applicants for membership (in the plural) having
regard to the objects of the legislation [Roughan v Australasian Meat Industry
Employees' Union (1992) 36 FCR 536.

[5]        These principles indicate that the alterations should be certified unless they are found

to be not bona fide or that they have an oppressive, unreasonable or unjust effect on members.

[6]        I now must consider whether the abolition of the office is bona fide. This is so whether

or not the office is vacant. On 1 December 2015 the Branch provided the Commission with

the following information enunciating the reasons for the abolition of the vacant office of

Assistant Secretary (Tasmania):

[2015] FWCD 8168

1. The position was only created on the relatively recent merger of the Victorian

and Tasmanian Branches of the IEU.

2.          The position was created to accommodate the person who had held the

position of Secretary of the Tasmanian Branch.

…
5.	The participants in that consultation were provided with substantial detail
about the financial status of the Tasmanian operation of the Branch and it was
widely agreed that, in view of the income received from members in Tasmania,
the position could not be justified in its current form.
6.	The Tasmanian Council Committee resolved to request that the role be
replaced with a second employed organiser and a further designated position
on the CoM be created for a member employed in Tasmania.

[7]        I have nothing before me to suggest that the alterations are not bona fide.

Whether oppressive unreasonable or unjust

[8]        Section 142(1)(c) provides as follows:

must not impose on applicants for membership, or 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;

[9]        Parliament’s intention in enacting the Fair Work (Registered Organisations) Act 2009

include: 

  ensure that employer and employee organisations are representative of and

accountable to their members, and are able to operate effectively;

	encourage the efficient management of organisations and high standards of
accountability of organisations to their members; and
	provide for the democratic functioning and control of organisations.

[10]      The abolition of office has been discussed extensively in the case law. Boland J of the

Industrial Relations Commission of NSW considered the abolition (and truncation) of an

office in an organisation registered under the Industrial Relations Act 1996 (NSW) - a

legislative context that is not dissimilar to the RO Act - as follows:

...in order for the rule change to be oppressive, unreasonable or unjust there needs to

be something more than simply the truncation of the four year term. One has to

consider, with particular regard to the object in s 3(d), what effect the rule change

would have on the democratic control of the USU and whether it encouraged

[2015] FWCD 8168

responsible management. The rule change abolishes a number of offices but it does

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not fundamentally alter the decision making structure of the organisation.

[11]      Having regard to the above I note that the alterations do not fundamentally alter the

decision making structure of the organisation. There is no net loss of representation for the

Tasmanian members of the Branch on the Branch Committee of Management. Further, the

body contains the same number of persons and continues to have the same powers and duties.

In addition the alterations will result in further resources being devoted to servicing the

membership in Tasmania. In each of these respects the alteration reflects Parliament’s

intention in enacting the RO Act.

[12]      I have not found anything to otherwise suggest that the alterations will have an

oppressive, unreasonable or unjust effect on members of the organisation under s142(1)(c).

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

made under the rules of the organisation.

[14]      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 Fair Work (Registered

Organisations) Act 2009.

DELEGATE OF THE GENERAL MANAGER

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Re - Application by USU for alteration of Rules - Reference by Industrial Registrar [2008] NSWIRComm 248

(19 December 2008).