Independent Education Union (South Australia) Branch

[2020] FWCD 3178

[2020] FWCD 3178

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

Independent Education Union (South Australia) Branch

(R2020/57)

MURRAY FURLONG MELBOURNE, 18 AUGUST 2020

Alteration of other rules of organisation.

1. On 15 May 2020 the Independent Education Union (South Australia) Branch (the Branch) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its Branch Rules. On 17 June 2020 and 14 August 2020 further submissions were provided in support of the application.

1. On the information contained in the notice and further submissions received, I am satisfied the alterations have been made under the rules of the organisation.

1. The particulars set out alterations to Branch Rules:

   1 – Description of Rules
   3 – Membership
   6 – Branch Executive and the election thereof
   7 – Additional Branch Officers and the election thereof
   9 – Powers of the Branch Executive
   10 – Duties of Officers
   15 – Meetings of members and referenda

1. These alterations are directly related to an earlier application and Decision, issued in R2020/42.[1] As stated therein, the alterations have been made in response to the circumstances brought about by the COVID-19 outbreak. By effecting these alterations, the Branch seeks to create a new office of Deputy Secretary to safeguard business continuity and to introduce provisions whereby the Branch Executive may adopt or otherwise deal with financial reports.

1. The alterations to Branch Rules 6.2, 6.4, 7.1.1, 9.1(m), 10.3.2 and new Branch Rule 7.1.1(a) relate to the new role of Deputy Secretary. These alterations expand the number of Branch Executive positions from five to six, require the inaugural filling of the position to occur by election, and ensure that the elected Deputy Secretary cannot also be elected to the position of President, Vice President, Branch Executive, or ordinary member in accordance with the doctrine of incompatible offices. The alterations pertaining to the Deputy Secretary also clarify that the Deputy Secretary shall be a fully participatory Branch Executive member who is authorised to undertake the role of the Secretary, whether in part or in full, at their request, in their absence or if the Secretary is otherwise unable to perform their duties.

1. Section 266 of the Fair Work (Registered Organisations) Act 2009 (the Act) provides that the full financial report of a reporting unit must be presented to a general meeting of members, unless section 266(3) applies. The latter section reads as follows:

If the rules of the reporting unit provide for a specified percentage (not exceeding 5%) of members to be able to call a general meeting of the reporting unit for the purpose of considering the auditor’s report, the general purpose financial report and the operating report, the full report may instead be presented to a meeting of the committee of management of the reporting unit that is held within the period mentioned in subsection (1).

1. The alteration to Branch Rule 9.1 by the addition of sub-rule 9.1(n) allows the Branch to adopt or otherwise deal with financial reports. The alterations to Branch Rule 15.2 create the provisions required under s266(3) of the Act whereby members may request a General Meeting for the purposes of considering the auditor’s report, the general-purpose financial report and the operating report.

1. The alterations to Branch Rule 15.2 also remove the requirement for the Branch to hold an Annual General Meeting.

1. Section 142(1) of the Act sets out general requirements for the rules of Registered Organisations. Specifically,

(1)      The rules of an organisation

(a)must not be contrary to, or fail to make a provision required by this Act, the Fair Work Act, a modern award or an enterprise agreement, or otherwise be contrary to law; and

(…)

(b)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 (…)

1. Section 5 of the Act outlines Parliament’s intention in enacting the Act. At section 5(3) it is highlighted that

(3)      The standards set out in this Act:

(a)ensure that employer and employee organisations registered under this Act are representative and accountable to their members, and are able to operate effectively; and

(b)encourage members to participate in the affairs of the organisation 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; and

(e)facilitate the registration of a diverse range of employer and employee organisations.

1. Annual General Meetings are an important mechanism at which members of an organisation can hold their committees of management accountable and ensure that their interests are being both protected and advanced. Removing the requirement to hold an Annual General Meeting may discourage member participation in the affairs of the organisation.

1. Following enquiries from the Commission about the removal of provisions for Annual General Meetings to be held, the Branch submitted that:

   • Provisions for holding Annual General Meetings were only included in the Branch Rules following alterations certified 12 April 2018 in [2018] FWCD 1534;
   • The change was intended to reflect the structure of the Branch’s associated state registered union in order to maintain internal consistency;
   • The more stringent requirements for reporting and compliance for Annual General Meetings within the federal body in practice caused the organisation to rethink its position so as not to be at risk of compliance issues;
   • The remaining meeting provisions are unaltered, and members remain able to call a Special General Meeting or hold a referendum under the rules; and
   • Democratic control of the organisation remains with the members, and audited financials may now be discussed at a General Meeting called for the purpose under new Rule 15.2.1.

1. I accept these submissions. Removing the Annual General Meeting provisions restricts the ability of members to come together on a scheduled basis to participate in the affairs of the organisation and control its committee of management. However, in the circumstances outlined above I do not consider the restrictions oppressive, unreasonable or unjust when regard is given to the Parliamentary intentions that underpin the Act and the Fair Work Act 2009. Particularly, the Branch Rules continue to include provisions for a referendum of members[2] and for Special General Meetings.[3]

1. Nonetheless, given the general importance of Annual General Meetings to the internal regulation of registered organisations and their branches, I will closely consider any alterations that propose to remove the requirement of an organisation or one of its branches to hold an Annual General Meeting. This will involve both careful examination of the proposed alteration and of the remaining rules of the organisation or branch concerned.

1. Subsequent to the removal of the requirement for the Branch to hold Annual General Meetings, Branch Rule 3 has been altered to remove references to such meetings.

1. Branch Rule 1 has been altered to correct a typographical error and remove references to Appendix A of the Federal Rules as this Appendix has no effect on the Branch Rules.

1. On 15 May 2020, Glen Seidel, Branch Secretary, gave consent, under subsection 159(2) of the Act, for the Delegate to make various amendments to the alterations for the purpose of correcting typographical, clerical or formal errors. Accordingly, the following corrections have been made:

   ·   In proposed rule 3.1.3 the word ‘executive’ has been capitalised;

   ·   In proposed rule 6.7 the words ‘federal rule’ and ‘executive’ have been capitalised;

   ·   In proposed rule 15.2.1 capitalisation and formatting has been amended to maintain consistency with the rulebook as a whole; and

   ·   In proposed rule 15.6 the word ‘an’ has been amended to ‘a’ ahead of ‘General Meeting’.

1. 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] [2020] FWCD 1849

[2] Branch Rule 15.4

[3] Branch Rules 15.1 and 15.3

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