Local Government NSW

[2021] FWCD 234

[2021] FWCD 234

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

Local Government NSW

(R2020/230)

MURRAY FURLONG MELBOURNE, 30 MARCH 2021

Alteration of other rules of organisation.

1. On 23 December 2020 the Local Government NSW (the Association) lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to its rules.

1. On the information contained in the notice, I am satisfied the alterations have been made under the rules of the Association.

1. The particulars set out alterations to rules:

   13 – Annual subscriptions
              34 – Delegates to a conference
              42 – Election arrangements
              48 – Casual vacancies
              Schedule B – Rules for conduct of elections if exemption is approved by Fair Work            Commission/Industrial Registrar

1. The particulars also insert new rules:

   42A – Election arrangements
              Schedule C – Rules for conduct of elections by secret postal ballot

1. Schedule C has been inserted to provide for the conduct of elections by secret postal ballot. Rule 48 currently provides that a casual vacancy is to be filled by way of a secret postal ballot in accordance with the provisions appropriate to the election for the vacant office. However, there are no existing rules that explain how to conduct a secret postal ballot therefore, the Association has inserted Schedule C to make the rules regarding the filling of casual vacancies more complete. Rule 48 has been amended so that a secret postal ballot is conducted in accordance with Schedule C.

1. Proposed Schedule C provides an extensive procedure for the conduct of a secret postal ballot in accordance with the Fair Work (Registered Organisations) Act 2009 (the Act).[1] Schedule C describes the duties of the returning officer,[2] specifies the day on which the role of voters is to close[3] and addresses how to resolve a defective nomination.[4] The Schedule further details the process for absentee voting,[5] provides for scrutineers[6] and ultimately seeks to prevent irregularities from occurring in the conduct of elections.[7]

2. Sub-rule 34(c) regarding substitute voting has been deleted as this content is already covered under Clause 16 of Schedule B and is therefore not essential.

1. The words ‘before the closing of the ballot’ have been removed from the end of Clause 18 of Schedule B for accuracy.

1. A new sub-rule has been added to Rule 13 which allows the Board to grant a partial waiver of a member’s annual subscription in circumstances of demonstrated hardship. The Association acknowledges that the rules surrounding membership fees may be rigid in their current form thus, sub-rule (h) aims to alleviate some of the financial burden imposed on members, particularly due to COVID-19. Sub-rule (h) reiterates that membership privileges will remain intact if a member is granted a partial waiver and pays a revised annual subscription.

1. New Rule 42A is a contingency arrangement for Board elections to be conducted by secret postal ballot instead of at an Annual Conference if it is not possible to hold the Annual Conference in person in a Board election year due to circumstances beyond the Association’s control. Rule 42 has been consequentially amended so that elections are now conducted subject to Rule 42A. This alteration is necessary due to COVID-19 and the uncertainty that still exists around in-person meetings.

1. On 17 February 2021, Linda Scott, President, 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 Clause 1 of Schedule C, the word ‘the’ should be inserted between ‘under’ and ‘Act;’

   ·    In proposed Clause 15 of Schedule C, ‘(1)’ should be inserted after ‘one’; and

   ·   In proposed Clause 23 of Schedule C, ‘(3)’ should be inserted after ‘three’.

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.

ACTING GENERAL MANAGER

[1] See ss 143(1)(e)(iii) and 144.

[2] See s 143(1)(b).

[3] See ss 143(1)(e)(i) and 143(3).

[4] See s 143(1)(c).

[5] See s 143(1)(e)(ii).

[6] See s 143(1)(e)(iv).

[7] See s 143(1)(f).

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