Local Government, Racing and Cemeteries Employees Union

[2024] FWCD 1029

[2024] FWCD 1029

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

Local Government, Racing and Cemeteries Employees Union

(R2024/58)

CHRIS ENRIGHT MELBOURNE, 8 MAY 2024

Alteration of other rules of organisation.

1. On 7 May 2024 the Local Government, Racing and Cemeteries Employees Union (LGRCEU) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules.

1. The LGRCEU seeks certification of the alterations under section 159 of the Fair Work (Registered Organisations) Act 2009 (the Act).

1. The particulars delete federal rule 8 of the LGRCEU’s rules.

Steps taken to alter the rules

1. The rules of the LGRCEU may be amended or repealed by the Union Council (federal rule 40). The Union Council can make decisions, including the decision to amend or repeal rules, in meetings or by postal communication (federal rules 26 and 27).  Sub-rule 26(3) of the federal rules provides that a notice convening a meeting of the Union Council shall be posted to Councillors not less than 28 days prior to the meeting.

1. The declaration lodged with the particulars advises that the alterations were transacted at a meeting of Union Council. The declaration also states that notice of the meeting was communicated to Councillors more than 28 days prior to the meeting. On 24 April 2024 (in anticipation of lodging these alterations with the Commission) the Secretary of the LGRCEU advised that some of the notices were delivered by hand, some by email, some by post, and some by a combination of these methods, depending on the most effective way of delivering the notice to the Councillor.

1. As stated above, sub-rule 26(3) of the federal rules requires notice of Union Council meetings to be posted. As explained by the Secretary, not all notices were posted. In summary, the LGRCEU has not strictly complied with the requirements of sub-rule 26(3) of its federal rules.

1. As discussed in Master Builders’ Construction and Housing Association of the Australian Capital Territory,[1] it is necessary to consider whether a failure to strictly comply with the rule-altering procedure invalidated the decision to alter the rules. In this matter, I must consider whether the failure to send all notices by post invalidated the decision to delete federal rule 8. To determine this, regard must be given to the language, purpose, scope and object of the relevant provisions.[2]

1. Applying these principles to the facts before me, the purpose of federal sub-rule 26(3) is to ensure that all Union Council members receive adequate notice of the meeting. Delivering the notice by hand or by email achieves this purpose; all Councillors received notice of the meeting more than 28 days before the meeting. As such, I am satisfied that the failure to send the notice by post to all members of the Union Council does not invalidate the resolution to delete federal rule 8.

1. In these circumstances I am satisfied that the alterations have been made under the rules of the LGRCEU. However, I remind the LGRCEU that when transacting future alterations to its rules, it must ensure that it complies with all the provisions associated with transacting the alterations, including the requirements for giving notice of the meeting. Neither the General Manager nor other Delegates are bound to follow decisions I have made. It should not be assumed that another decision maker would reach the same conclusion I have come to in this matter.

1. I turn now to the substance of the alterations.

Deletion of federal rule 8

1. Currently the LGRCEU rules are divided into two sections and a fourth part. The first section sets out the federal rules and the second section sets out rules relating to the Western Australian Division. The fourth part sets out disclosure and reporting obligations.

1. Rule 8 of the federal section of the rules specifies that the LGRCEU is comprised of the Western Australian Division and such other Divisions as the Union Council may constitute from time to time. This rule also enables the Union Council to create and abolish Divisions.

1. An organisation is able to determine its internal structures as it thinks fit, including whether it is comprised of Divisions, provided it complies with the Act.[3] I believe this extends to determining the machinery by which it changes those structures. A relevant requirement of the Act remains in subsection 142(1)(c), which provides that rules must not impose conditions on members or applicants for membership that are oppressive, unreasonable or unjust having regard to, among other things, Parliament’s intentions and the objects of the Act.[4]

1. In order to make this assessment I now review the historical and current structure of the LGRCEU.

1. The LGRCEU was registered as an organisation of employees on 19 November 2002. At the time of its registration and since that time, the LGRCEU has only had one Division, that being the Western Australian Division. Although its rules enable the creation of additional Divisions, it has not done so. Nor has it recruited members in states or territories other than Western Australia.[5] In summary, the rules provide for two levels of governance which serve an almost identical group of members.

1. Staff of the Commission have regularly engaged in discussions with representatives of the LGRCEU regarding the efficacy of its organisational structure. Most recently, staff of the Commission and LGRCEU have engaged in extensive discussions regarding potential rule changes which aim to streamline its organisational structure, including abolition of the Divisional structure.

1. Having regard to the history of the LGRCEU, removing the ability for the Union Council to create new Divisions does not impose oppressive, unreasonable or unjust conditions on members having regard to the objects of the Act.

1. I note that the deletion of federal rule 8 will remove a reference to the Western Australian Division. However, the deletion of this reference will not have the effect of abolishing that Division, nor is that what the LGRCEU is seeking to do with this alteration. The second section of the rules explicitly provide for a Western Australian Division and set out rules for the governance of that Division.

1. Federal rule 8 expressly provides that the Union Council can abolish Divisions and sets out the steps required before a Division can be abolished. The deletion of this rule removes the explicit power to abolish a Division from the Union Council. Instead, a future decision by the rule-making body (which is the Union Council) to delete that section of the rules which provide for the Western Australian Division would have the effect of abolishing the Division. In other words, the deletion of rule 8 merely changes the means by which the Union Council can abolish the Division, if it so decides.

1. In my view, the deletion of federal rule 8 does not impose oppressive, unreasonable or unjust conditions on members, having regard to the objects of the Act and Parliament’s intentions in enacting the Act.

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, are not otherwise contrary to law and were made under the rules of the organisation. I certify accordingly under subsection 159(1) of the Act.

DELEGATE OF THE GENERAL MANAGER

[1] Master Builders’ Construction and Housing Association of the Australian Capital Territory [2013] FWCD 3600

[2] See Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 and the application of the principles in Appeal by the Australian Education Union against the decision of Vice-President Ross of 27 January 2006; Lawler VP, Kaufman SDP, Smith C, 26 September 2006, PR973525

[3] Imlach v Daley (1985) 7 FCR 457 at 462.

[4] Subsection 142(1)(c) of the Act provides that rules:

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

Subsection 5(3) of the Act sets out the following standards for registered organisations:

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

(b)     encourage members to participate in the affairs of organisations 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

[5] See the LGRCEU’s Annual Returns of Information and Financial Reports published on the Commission’s website: Local Government, Racing and Cemeteries Employees Union (LGRCEU) - Find a registered organisation - Fair Work Commission (fwc.gov.au)

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