Independent Education Union (South Australia) Branch

[2020] FWCD 1849

[2020] FWCD 1849

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

Independent Education Union (South Australia) Branch

(R2020/42)

MURRAY FURLONG MELBOURNE, 27 APRIL 2020

Alteration of other rules of organisation.

1. On 30 March 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 2 April 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:

   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. On application, the Branch advised the proposed alterations have been made in response to the circumstances it faces due to the COVID-19 outbreak. By effecting these alterations, the Branch seeks three outcomes: the implementation of a framework through which the Branch Executive may conduct meetings other than in-person; the introduction of provisions whereby the Branch Executive may adopt financial reports, rather than having to present those reports to a general meeting of members; and the creation of a new office of Deputy Secretary.

Alterations pertaining to Deputy Secretary and Financial Reports

1. Section 142 of the Fair Work (Registered Organisations) Act 2009 (the RO Act) sets out the general requirements for rules of a Registered Organisation. Relevantly the section provides that rules of an organisation must not be contrary to the RO Act or to law, fail to make a provision required by the RO Act, nor impose on members conditions, obligations or restrictions that, having regard to the Parliamentary intentions underpinning the RO Act, are oppressive, unreasonable or unjust.

1. After examining the alterations, staff of the Commission raised concerns that the alterations proposed to Branch Rule 6.7 may be contrary to the RO Act and the alteration to 9.1(n) may, without further alterations, be incapable of operating as intended.

1. The proposed alteration to Branch Rule 6.7 was part of a series of alterations transacted to create the office of Deputy Secretary. It provided for the inaugural filling of the office as a casual vacancy by appointment. Section 146 of the RO Act permits the rules of registered organisations to fill casual vacancies by appointment in certain circumstances. Otherwise, s143(1)(a) of the RO Act requires the holder of each office to be elected.[1]

1. However, where an office is vacant because it is newly created, that vacancy is not a casual vacancy. In Grove v Cameron,[2] a Full Court of the Federal Court of Australia considered an election for offices in the Federated Miscellaneous Workers’ Union of Australia. Joske J stated

‘An extraordinary vacancy cannot occur where no person has been elected and no person has ever had a term of service. Accordingly, the casual vacancy provision does not apply’.[3]

1. The proposed rule alteration in Branch Rule 6.7 would have the effect of allowing an office to be filled by appointment other than in the circumstances set out in s146 of the RO Act. This would be contrary to s143, and I am therefore unable to certify such alteration. To be clear, this is not meant to be a criticism of the Branch; rules such as proposed Branch Rule 6.7 are occasionally submitted for certification by a variety of organisations. I turn now to the alterations proposed in 9.1(n).

1. Branch Rule 9.1(n) empowers the Branch Executive to receive the annual financial reports at a first meeting, and adopt at a second meeting, or otherwise deal with, the full financial report. At present, the Branch’s financial report is adopted at the Annual General Meeting of members under Branch Rule 15.2.

1. Section 266 of the RO Act provides that the full financial report of a reporting unit must be presented to a general meeting of members. Section 266(3), however, 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. By its terms, proposed Branch Rule 9.1(n) is unexceptional. There is no reason why it cannot be certified. However, there is no Branch Rule directed to s266(3). As a consequence, s266 of the RO Act requires the full financial report to be placed before a general meeting, notwithstanding the provisions of Branch Rule 9.1(n).

1. The Branch actively engaged with Commission staff and on 3 April 2020 requested that the alterations to Branch Rules 6.7 and 9.1(n) be severed from the current application and held in abeyance. The Branch indicated that once provisions for holding Branch Executive meetings by means other than in-person had been determined, further amendments to the impugned alterations could be transacted and lodged without breaching the government’s current COVID-19 restrictions.

1. On 8 April 2020 the Branch clarified that along with Branch Rules 6.7 and 9.1(n), all proposed alterations pertaining to the new position of Deputy Secretary were to be held in abeyance, so that they might be amended and resubmitted for certification at a later date.

1. For the avoidance of doubt, based on the Branch’s requests of 3 and 8 April 2020, of the particulars provided to the Commission at the time of lodgment, only the alterations proposed to Branch Rules 6.5(b), 9.2 and 15.6 are to proceed to determination at this time.
   
   

Severability

1. The question of severability turns upon whether or not the impugned alterations can be regarded as completely independent of the remaining alterations. I am required to be satisfied that the removal of the impugned alterations would not affect the meaning or effect of the remaining alterations.[4]

1. Severability of alterations has been discussed extensively by the courts. Gray, J in Re Food Preservers’ Union at [155] states, the certification of a rule alteration is to the alteration itself rather than to a particular rule or sub-rule.[5] Gray, J further emphasises that the certifier

‘is not required to consider whether a rule or sub-rule complies with or is not contrary to the provisions of the Act, the regulations or an award, but is required to consider whether an alteration so complies or is not so contrary. Within a particular rule or sub-rule, there may be more than one alteration. Even where a former rule or sub-rule is expressly repealed, and a new rule or sub-rule is substituted for it, the new rule or sub-rule may contain more than one alteration. The Industrial Registrar is obliged to form an opinion, not with respect to the rule or sub-rule, but with respect to each alteration. Having formed such an opinion, he is required to give a certificate with respect to that alteration’.[6]

1. I am satisfied that each rule and alteration is capable of being found independent of any other rule or alteration. I am also satisfied that severance of the impugned alterations will not adversely affect the remaining alterations. Therefore, I agree that the alterations to Branch Rules 6.2, 6.4, 6.7, 7.1.1(a), 9.1(m), 9.1(n), and 10.3.2 may be withdrawn from the remainder of the application so that further alterations may be transacted and lodged in due course. I turn now to the remaining alterations.

Remaining Alterations

1. The deletion of Branch Rule 6.5(b) removes the limitation on Branch staff which has heretofore rendered them ineligible for election to Branch Executive.

1. The alterations to Branch Rule 9.2 allow for meetings of the Branch executive to be validly conducted by teleconference, video conference, or equivalent electronic means. The alterations to this Branch Rule also provide for the Secretary to conduct telephone, electronic, facsimile, postal or verbal votes of members of the Branch Executive, and for such votes to be as valid as if a meeting had been held.

1. The alterations to 15.6 enable members to participate in Annual General Meetings, Special General Meetings or ordinary general Meetings, by means of teleconference, video conference or equivalent electronic means where permitted.

1. In my opinion, the alterations to 6.5(b), 9.2 and 15.6 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] See subsection 143(1)(a) of the RO Act.

[2] Grove v Cameron [1972] 21 FLR 59, 10 May 1972, Spicer CJ, Joske, Smithers, JJ.

[3] Grove v Cameron [1972] 21 FLR 59, per Joske J at [68]; see also Commonwealth Steamship Owners’ Association, Print J7470, 16 April 1991, O’Shea IR; Vardon v O’Loghlin [1907] HCA 69, 20 December 1907, per Griffith C.G., Barton J., and Higgons J.

[4] See Cameron v Australian Workers’ Union (1959) 2FLR 4; Wishart v Australian Builders Labourers’ Federation (1960) 2 FLR 298; Maxwell v Boilermakers Society of Australia (1964) 7 FLR 155; Australian Entertainment Industry Association [2019 FWCD 942 at [14].

[5] See Re Food Preservers’ Union of Australia (1988) 19 ALR 138; Shop, Distributive and Allied Employees Association [2017] FWCD 942 at [14].

[6] Gray J in Re Food Preservers’ Union of Australia (1988) 79 ALR 138 at [155].

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