Master Plumbers' and Mechanical Services Association of Australia, the
[2015] FWCD 3951
•30 December 2015
[2015] FWCD 3951
DECISION
| Fair Work (Registered Organisations) Act 2009 |
| s.159—Alteration of other rules of organisation |
The Master Plumbers' and Mechanical Services Association of Australia
(R2015/81)
| MR ENRIGHT | MELBOURNE, 30 DECEMBER 2015 |
| Alteration of other rules of organisation. |
[1] On 21 April 2015 The Master Plumbers' and Mechanical Services Association of
Australia (the Association) lodged with the Fair Work Commission a notice and declaration
setting out particulars of alterations to their rules.
[2] The particulars set out alterations to rules 4, 11, 16A, 17, 19, 20A, 21, 22, 24, 25, 27,
28, 29, 31, 32, 35, 43, 45, 48, 49 and 53, the insertion of new rules 22A, 23, and 23A and the
deletion of rules 16, 19A and 20.
[3] On the information contained in the notice, I am satisfied the alterations have been
made under the rules of the organisation.
[4] A number of alterations require comment. The first of those relate to the manner in
which various office holders in the Association are elected.
[5] The Association is presently governed as follows.
[6] Subject to the general control of the members of the Association in general meeting,
1
management of the Association is vested in the Executive Board and the National Council.
[7] The National Council is the peak collective body of the Association. It has, among
other things, the power to determine matters of policy concerning the affairs of the
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| Association and the power to alter the Association’s rules. | Voting members of the National |
Council therefore hold an office within the meaning of section 9(1)(b) of the Fair Work
(Registered Organisations) Act 2009 (the Act).
[8] Subject to the powers conferred on the National Council and to resolutions of the
National Council or a General Meeting of members, the Executive Board has the general
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| conduct and control of the business of the Association. | The rules set out a series of powers |
4
| and duties, typical of those of a Committee of Management. | Voting members of the |
Executive Board therefore hold an office within the meaning of section 9(1)(b) of the Act.
[2015] FWCD 3951
[9] In addition, the rules of the Association provide for a President, two Vice-Presidents, a
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| Secretary and an Honorary Treasurer, referred to as Office Bearers. | These too hold an office |
| under the Act. |
[10] The National Council are elected under the provisions of Rule 48(3).
[11] During the calendar year 2012 a restructured National Council was established via
direct election by the members of the Association.
[12] The National Council comprises 21 members. Four Representatives are elected by and
from each of 5 designated Member Categories of the Association (referred to as Categories B,
C, D, E and F respectively). The Secretary of the Association is also a member of the National
Council, but a non-voting member.
[13] Member Categories are subsets of the Association’s membership, grouped according
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| to the number of operatives, including the principal, of the respective member. | Life members |
| not assigned to any other category are treated as members of Category B. |
[14] In the 2012 election for the National Council Representatives, two Representatives
were elected from each Member Category for a two year term and two Representatives were
elected for a one year term.
[15] In 2013, and in each year thereafter, the five designated Member Categories each
elected two Representatives for two year terms of office.
[16] Hence, National Council Representatives hold office for two years; 2 Representatives
from each of the 5 designated Member Categories are elected every year.
[17] After the National Council has been constituted each year, there is an election by and
from the National Council Representatives for the President, two Vice Presidents, honorary
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Treasurer and four Executive Board Members.
[18] Going forward, the Association intends to put in place in its governing bodies ‘a
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| system of renewal, while at the same time preserving some continuity’. | The present |
alterations give effect to that intention by creating a mechanism where the terms of office of
National Council representatives and National Board members are two years, ‘but on a
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rotation basis whereby half the Council and half the Board face election every year’.
[19] According to the Association, the alterations lodged for certification:
[I]nvolve splitting the Board into two groups of 4 so that half the Board is elected every year.
Subrule 21(2) is a 'one off' for 2016, in order to effect the overlap for the outward years.
Subrules 21(3) and (4) cover the ongoing rotation in the out years. Rule 22A is designed to
synchronise the nomination qualifications to ensure that each yearly election group of 4
Executive Board members comes from the same yearly election group of 10 Representatives
to Council.
The proposed alterations are designed so that by 2018 and every year thereafter [upon the
future rotation arrangements being fully synchronised]-
[2015] FWCD 3951
a) the 10 newly elected Representatives to Council join together with the 10 continuing Representatives to Council to form the electoral college of 20,
b) that college of 20, shortly before the holding of the AGM, then elect 4 Board Members (to come from that year's newly elected 10 Representatives to Council) to join
together with the 4 continuing Board Members (elected in the previous year) -thus constituting
an electoral college of 8 persons, and
c) that college of 8, shortly before the holding of the AGM, then elect the President, the 2 Vice-Presidents and the Treasurer
…
The 'two tranche' process of joining new and continuing Representatives to Council each
10
year... has been replicated to apply to the Board.
[20] I note that the 10 newly elected Representatives to Council have been elected to — but
not taken up — office when they take their place in the college which will elect half the
National Board. The Council Representative election will be complete but for the declaration
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| and assumption of office. That occurs at the next annual general meeting. | . They are |
| therefore referred to as National Councillors elect. |
[21] The alterations cannot take effect unless I certify that in my opinion they comply with,
and are not contrary to the Act.
[22] Sections 141 and 143 of the Act are apposite. They relevantly provide:
140 Organisations to have rules
(1) An organisation must have rules that make provision as required by this Act.
| … | ||
| and | ||
| 143 Rules to provide for elections for offices | ||
|
(a) must provide for the election of the holder of each office in the organisation by:
(i) a direct voting system; or (ii) a collegiate electoral system that, in the case of a full-time office, is a one-tier collegiate electoral system…
[2015] FWCD 3951
[23] Collegiate electoral system is defined in section 6 of the Act as follows:
In this Act, unless the contrary intention appears:
…
collegiate electoral system, in relation to an election for an office in an organisation, means a
method of election comprising a first stage, at which persons are elected to a number of offices
by a direct voting system, and a subsequent stage or subsequent stages at which persons are
elected by and from a body of persons consisting only of:
(a) persons elected at the last preceding stage; or (b) persons elected at the last preceding stage and other persons (being in number not more than 15% of the number of persons comprising the body) holding offices in
the organisation (including the office to which the election relates), not including any
person holding such an office merely because of having filled a casual vacancy in the
office within the last 12 months, or the last quarter, of the term of the office.
[24] Three questions arise about whether the collegiate electoral system established by the
alterations complies with the Act.
[25] First, is the proposed manner of election of the Executive Board and the office bearers
consistent with the definition of collegiate electoral system? In particular, is constituting the
National Council and the National Board in two phases, over two calendar years, consistent
with the definition of collegiate electoral system?
[26] Secondly, does including National Councillors elect in the college for National Board
elections conform with the definition of collegiate electoral system? In particular, can a
college be established consistent with the Act’s definition of collegiate electoral system if it
includes persons who have been elected to an office but under the rules of the organisation not
assumed office, where such persons would number more than 15% of the college in question?
[27] Finally, can it be said that persons are elected ‘by and from’ a body of persons if only
half the college is entitled to nominate for election to the National Board in any given year?
[28] On 16 July 2015, I invited the applicant to provide submissions about its proposed
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| collegiate electoral system. | Submissions were lodged on 3 August 2015. |
[29] Turning to the first question, I have been unable to find any authorities which are
directly on point. My research suggests that the manner of election in contemplation is novel,
both in relation to organisations registered under the Act and to associations of employers and
employees registered under State and industrial laws.
[30] There are, nonetheless, two Federal Court of Australia judgments which provide some
guidance.
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| [31] | In Sherrif v Townsend, | a Full Court of the Federal Court was considering, amongst |
other things, whether the rules of the Vehicle Builders Federation of Australia provided for
the election of the union’s President, Vice President and Trustees by a collegiate electoral
system.
[2015] FWCD 3951
[32] The union’s Federal Council was the college in question. It consisted of two delegates
from each branch, each Branch Secretary, the Federal Secretary and the Assistant Federal
Secretary. The delegates were elected biennially by the members of each of the union’s
branches. The Branch Secretaries were directly elected by the members of their respective
branches. The term of office of the Branch Secretaries was not specified in the judgment, but
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| ‘is longer than that of a delegate and the elections may take place at different times’. | The |
Federal Secretary and Assistant Federal Secretary were directly elected by the members of the
union for six year terms.
[33] Northrop J stated:
Under the rules of the Federation, the members of the Federal Council are elected by a direct
voting system, the delegates of branches and the branch secretaries by the financial members
of each branch and the Federal Secretary and the Assistant-Federal Secretary by the financial
members of the organization. The members of the Federal Council constitute the first
subsequent stage following the direct voting system by which they were elected to Federal
Council and constitute the college to elect the officers specified in Rule 5(b). This is a one tier
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collegiate electoral system and complies with the requirements of s.133 of the Act.
16
[34] Evatt J concurred with Northrop J.
[35] Hence, the election of the persons who constituted the college at different times was
not inconsistent with the definition of the collegiate electoral system in the legislation as if
then stood.
[36] Evatt and Northrop JJ refined this reasoning in a subsequent Full Court Judgment. In
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| Municipal Officers' Association of Australia v Lancaster | they stated: |
[E]lection of officers may be pursuant to a direct voting system or a collegiate electoral
system. The section imposes certain restrictions on the operation of the collegiate electoral
system, but for present purposes it is sufficient to say that the system permitted was one at
which, as a first stage, persons were elected to a number of offices by a direct voting system
and that those persons constituted a college, and a subsequent stage at which persons were
elected "by and from the persons" constituting that college.
[37] There is no relevant distinction between the definition of collegiate electoral system as
it appears in the Act and as it stood in Sheriff and Lancaster.
[38] In the present alterations, persons are elected to a number of offices by a direct voting
system. Those persons constitute a college and at a subsequent stage persons are elected by
and from the persons constituting that college. It is immaterial that the elections for office by
direct voting system do not occur concurrently. Constituting the National Council and the
National Board in two phases, over two calendar years, is not inconsistent with the definition
of collegiate electoral system.
[39] Turning to the second question, the applicant submits:
The collegiate election system definition does not use the past tense as in "at which persons
have been elected", nor does the definition use the term "office holder". The definition does
not say for example, "at which persons have been elected as office holders".
[2015] FWCD 3951
Further, there appears to be no binding authority that has construed the definition of collegiate
electoral system so as to preclude the participation of a body of persons of whom the election
results are formally known or announced (by operation of express rules to that effect) in close
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proximity to their assumption to office.
and sets out a number of authorities said to support this view.
[40] I accept the applicant’s submissions in this regard. In addition, I note that the
definition of collegiate electoral system in the Act refers to ‘persons are elected to a number
of offices’ rather than persons who hold an office. When regard is had to the definition of
‘officer’ in section 9 of the Act, it is clear that the Parliament was aware of the distinction
between being elected to an office and holding an office.
[41] The inclusion of National Councillors elect in the college which elects that National
Board is not inconsistent with the definition of collegiate electoral system.
[42] Turning to the last question, only newly elected National Councillors will be able to
nominate for the National Board in any given year. The class of persons eligible to nominate
is therefore half of the National Council. The whole of the prospective National Council is
entitled to vote in the ensuing National Board election.
[43] In my view this arrangement does not result in the election being something other than
‘by and from a body of persons’ as the definition of collegiate electoral system requires.
[44] The limitation on who can nominate is, properly construed, a qualification for office.
Qualifications for office are not uncommon in the rules of registered organisations. They may
be based on minimum periods of membership of the organisation or of a particular collective
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| body, on gender, on age | or on some other criterion. |
[45] Further, the existence of present qualification does not render the alterations otherwise
contrary to the Act. As Evatt and Northrop JJ stated in Lancaster:
The Federal Court and the Australian Industrial Court have, on many occasions, upheld rules
of an organization imposing restrictions upon the right of a member to nominate as a candidate
in an election to an office within the organization… The rules providing for a collegiate
electoral system impose restrictions on members who can be nominated as candidates for
certain offices, on members who can nominate persons as candidates and on members entitled
to vote for those candidates. In the form of the legislation now in operation much could be said
for the view that the rules of the Association providing for the election of executive
councillors and federal councillors do not contravene s.140(1)(c) of the Act in that those
elections are conducted pursuant to a collegiate electoral system as defined.
[46] As noted above, the policy rationale for the restriction on Executive Board nomination
is annual renewal. In my view, giving effect to that policy by restricting the ability of an
ongoing National Councillor to nominate for a position on the National Board does not
impose a condition or restriction which is oppressive, unreasonable or unjust within the
meaning of section 142(1)(c) of the Act.
[47] In conclusion, the collegiate electoral system established by the alteration is consistent
with the definition of ‘collegiate electoral system’ contained in section 6 of the Act.
[2015] FWCD 3951
[48] The next matter that falls for consideration is the alteration to Rule 24(4)(b). That
alteration deals with absent voting in an election conducted by attendance ballot.
[49] Rule 24(4)(b), as altered, states:
(4) The Returning Officer shall make provision for the following in regard to the conduct of any election under this rule: …
(b) for attendance ballots relating to collegiate elections – the use of absentee voting so that any member of the voting college who expects to be absent from the
meeting taking the ballot shall be entitled to exercise their secret ballot, where
practicable, in such manner as the Returning Officer determines is practicable.
[50] In July 2015 I indicted a preliminary view that proposed Rule 24(4)(b) may not be
sufficient for the purposes of section 143(1)(e)(ii) of the Act. I was concerned that although
the proposed rule dealt with absent voting, it did not appear to make provision in a practical
sense.
[51] In response, the applicant submitted:
Subsection 143(1)(e) provides, in context:
"The rules of an organisation: must provide that, where a ballot is required, it must be
a secret ballot, and must make provision for: (ii) absent voting."
It can be seen that the Act does not go so far as to prescribe the rules for absent voting…
Proposed subrule (b) confers an entitlement upon any member of the voting college... to
exercise their secret ballot where such voting member expects to be absent from the meeting
taking the ballot. The subrule rule then confers power upon the Returning Officer to effect the
necessary arrangements for the person to cast an absent vote, and cast it in a way that is secret
In a collegiate election taken amongst a small number of people assembled at a meeting, the
scenarios that may give rise to an absent vote are difficult to quantify or prescribe. There may
or may not be sufficient advance notice to effect a postal vote. Where a postal vote is
impractical, such that would delay the counting of the results beyond the meeting, the
Returning Officer may wish to adopt other means by modern technology to enable the absent
voter to cast his or her vote in a way that preserves the vote's secrecy. But because the
methodology is unquantifiable, the subrule entrusts the Returning Officer to determine the
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process.
[52] I accept these submissions. The rule obliges the Returning Officer to ensure absent
voting is provided for. It is customary for absent voting rules to be qualified by the proviso
that the absentee voter anticipates their absence and takes steps, before the ballot opens, to
arrange a method by which they can vote. The proposed rule does likewise. Finally, I accept
that the rule provides a real, rather than illusory opportunity for an absent vote to be cast
whilst allowing the Returning officer to mould the voting method to best suit the prevailing
circumstances. The alteration to Rule 24(4)(b) complies with and is not contrary to the Act.
[2015] FWCD 3951
[53] Finally, I turn to the alteration to Rule 24(5)(b). As altered, Rule 24(5)(b) states:
(5) Where the Returning Officer finds any nomination to be defective the Returning Officer shall, before rejecting the nomination, notify the person concerned of the defect, and, where it is practicable to do so, give the person concerned the opportunity of remedying the defect: …
(b) in respect of a collegiate election – within one hour of the person being notified of the defect.
[54] In July 2015, I expressed a preliminary view that the proposed alteration was not
consistent with section 143(1)(c) of the Act. If so, the alteration to Rule 24(5)(b) would not
comply with and be not contrary to the Act.
[55] Section 143(1)(c) requires the rules of an organisation to:
provide that, if the returning officer conducting an election finds a nomination to be defective,
the returning officer must, before rejecting the nomination, notify the person concerned of the
defect and, where practicable, give the person the opportunity of remedying the defect within
such period as is applicable under the rules, which must, where practicable, be not less than 7
days after the person is notified; and
[56] The applicant submitted that the purpose of the section was to ‘give notice of a
rejected nomination, and secondly, to provide an opportunity to cure a technically defective
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| nomination, but not an opportunity to cure an ineligible nomination.’ | . |
[57] The applicant noted that my concern was ‘understood to be about the one hour's notice
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| to remedy a technically defective nomination in the collegiate elections’, | and submitted: |
as a matter of statutory construction… the expression 'within such period as is applicable
under the rules' has no work to do unless it is to enable the rules to set a lesser time frame than
7 days in particular circumstances. The said expression is otiose if it is construed merely to
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enable the rules to set a minimum time frame of more than 7 days.
[58] The applicant emphasised the fact that the relevant elections would be conducted at
attendance ballots at which the nominators and nominee would be present. The Returning
Officer would call for nominations at that meeting, ‘such that any technically defective
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nomination would be curable in an instant, if not within minutes’.
[59] I accept the Act does not require a person to be given a minimum period of 7 days to
cure a defective nomination. Rather the period required is the period which is set out in the
rules of the organisation. The period set out in the rules shall be, where practicable, 7 days.
[60] I also accept that in the context of personal attendance ballots of twenty or fewer
persons, a technically defective nomination should be able to be attended to quickly. On
balance, I conclude that the alteration to Rule 24(5)(b) complies with and is not contrary to
the Act.
[2015] FWCD 3951
[61] 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
Printed by authority of the Commonwealth Government Printer
<Price code A, PR568269>
1
Rule 19
2
Rule 30
3
Rule 30A
4
Rule 30A
5
Rule 17; see also Rules 27 and 28 for the duties of the Office Bearers
6
Rule 19(5)(a). Before the Returning Officer calls for nominations for National Council Representatives every year, National
Council resolves the 5 designated Member Categories to elect such Representatives. In so doing, the National Council
considers, amongst other things, the numbers of members in each Member Category and the value of the subscriptions of
each Member Category - Rule 19(4)(ii) & (iii).
7
Rule 48(4). The Executive Board may also co-opt two persons who are not members of the Association, as non-voting
members of the Executive Board.
8
Submission from Ken Gardner, CEO/Secretary of The Master Plumbers' and Mechanical Services Association of Australia,
3 August 2015 at paragraph 2
9
Ibid at paragraph 4
10
Ibid at paragraphs 11 – 12, 14.
11
See Rules 20A(1)(f) and 20A(2)(c)(viii) &(ix).
12
And also invited submissions about a number of other matters which are referred to below.
13
[1980] 48 FLR 20, [1980] FCA 35 , Smithers, Evatt and Northrop JJ, 3 April 1980
14
48 FLR 20 at 54 per Northrop J
15
Ibid at 55.
16
[1980] 48 FLR 20 at 45.
17
(1981) 54 FLR 129, [1981] FCA 151, Evatt, Northrop and Deane JJ, 6 October 1981
18
Submission from Ken Gardner, CEO/Secretary of The Master Plumbers' and Mechanical Services Association of Australia,
3 August 2015 at paragraphs 41 - 42
19
See for instance Jacomb v Australian Municipal, Administrative, Clerical and Services Union, [2004] FCA 1250, Crennan
J, 24 September 2004 at paragraphs 6 – 9; Appeal by Jacomb against decision of Nassios DIR, PR943240, Lacy SDP, 5
February 2004
20
Submission from Ken Gardner, CEO/Secretary of The Master Plumbers' and Mechanical Services Association of Australia,
3 August 2015 at paragraphs 45 - 48
21
Ibid at paragraph 52.
22
Ibid at paragraph 54
23
Ibid at paragraph 53
24
Ibid at paragraph 56
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