Media, Entertainment and Arts Alliance

[2020] FWCD 4329

[2020] FWCD 4329

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Media, Entertainment and Arts Alliance
(R2020/22)
MURRAY FURLONG	MELBOURNE, 22 SEPTEMBER 2020
Alteration of other rules of organisation.

[1]        On 18 February 2020 the Media, Entertainment and Arts Alliance (MEAA) lodged

with the Fair Work Commission (the Commission) a notice and declaration setting out

particulars of alterations to its rules. Further material in support of the alterations was

provided on 16 July 2020.

[2]        The particulars set out alterations to rules:

7 – Admission to Membership;

8 – Temporary & International Membership;

10 – Subscriptions;

11 – Rights of Members;

12 – Duties of Members;

16 – Resignation from Membership;

19 – Branch Council;

23 – Control of Branch Council by Members;

25 – Branch Officers;

26 – Branch President;

28 – Powers & Duties of Branch Secretaries and Regional Directors;

30 – General Meetings;

40 – Constitution of Federal Council;

42 – Ordinary Meetings of Federal Council;

43 – Order of Business at Federal Council Meetings;

50 – Powers and Duties of Chief Executive;

56 – National General Meeting;

57 – Industrial Disputes;

58 – Prosecutions on Behalf of the Association;

63 – Financial Management;

63A – Disclosure and Accountability;

70A – National Stunt Committee;

71 – Offences and Complaints;

72 – Removal from Office;

73 – Charges Against Members;

75 – New Rules and Alterations of Rules;

[2020] FWCD 4329

78 – Terms of Office; and

79 – Elections;

and the deletion of rules:

9 – Entrance Fees;

55 – National General Meetings; and

84 – Transitional Rules.

Rule altering procedure

[3]        Rule 70A, which provides for the election of a National Stunt Committee by and from

members graded stunt performers, safety supervisors and stunt co-ordinators, has been altered

to include assistant stunt co-ordinators.

[4]        Rule 70A is located at the end of Section 8, which is titled “Journalists’ Code of

Ethics”. Rule 64 states that Section 8 applies to a certain class of members referred to as

“journalists”. The National Stunt Committee is elected by and from a different class of

members.

[5]        The rule altering procedure is set out at Rule 75. Sub-rule 75(d) provides:

[n]o new rule (or amendment, addition or rescission) shall be made which alters any

section rights set out in sections 4 & 8 of these rules without the section first

approving any such change in accordance with the rules governing those sections.

[6]        Rule 64 states alterations can only be made to Section 8 with the approval of the

Media section.

[7]        Noting that the alteration to Rule 70A did not appear to have been considered by the

media section, Commission staff sought further information from the MEAA. In response, the

MEAA submitted:

It is anomalous that the National Stunt Committee rule is located in section 8... section

8 of the rules is directed at the MEAA Code of Ethics, which concerns members of

MEAA’s Media Section only. MEAA will have regard to relocating this provision, or

establishing a new section, for this rule at a future meeting.

To be clear: rule 70(A) bears no relationship to the activities of MEAA’s media

members. No approval is required for changes to this rule by media members. The

only members to whom this rule applies are stunt performers in the four listed sub-

categories and federal councillors (at large) in the event that a rule variation is to be

considered under rule 75.

I advise that the National Stunt Committee considered and approved the changes

sought to rule 70(A) at a meeting conducted on 15 September 2019…

[8]        I accept the MEAA’s submissions. Notwithstanding the placement of Rule 70A, it has

no relevance to the class of members to which section 8 applies. I recommend that the MEAA

consider remedying the anomalous placement of Rule 70A as soon as practicable.

[2020] FWCD 4329

[9]        On the information contained in the notice and subsequently provided by the MEAA, I

am satisfied the alterations have been made under the rules of the organisation.

Withdrawal of alterations

[10]      On 26 June 2020, Commission staff wrote to the MEAA expressing concern that the

proposed alterations to Rule 72 were not capable of certification. In response, on 16 July 2020

the MEAA asked that consideration of the proposed alteration be suspended whilst further

advice was sought and considered by the Board. The MEAA ultimately withdrew the

proposed alterations to Rule 72 and a related alteration, proposed new Paragraph 79(d)(iii), on

11 September 2020.

1. I am satisfied that the alteration to Rule 72 and proposed Paragraph 79(d)(iii) are

severable from the remaining alterations to the MEAA’s rules in light of the principles set out

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by the majority in Re Food Preservers’ Union of Australia. In particular, I am satisfied that

the remaining alterations operate independently of the alterations being severed and their

meaning and effect will not be impacted.

Remaining alterations

[12]      One effect of the alterations is to abolish the optional office of Branch Secretary.

References to the office of Branch Secretary have been deleted throughout the rules and

consequential changes have been made where necessary.

[13]      Rules 19 and 25 currently provide that the officers in each branch will include a

Branch Secretary where the Federal Council has determined to create the office, with the

consent of the relevant Branch. If there is no Branch Secretary, the relevant functions are

performed by the Regional Director or Chief Executive. The MEAA has confirmed that the

office of Branch Secretary does not exist in any of its branches. From an examination of the

MEAA’s Annual Returns lodged with the Registered Organisations Commission (and

formerly the Regulatory Compliance Branch of the Commission), it is apparent that the office

has not been held in any Branch since 2015.

[14]      Provided it complies with the requirements of the legislation and its rules, an

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organisation has the right to mould its internal structures as it sees fit. Authorities suggest

that an elected office may be abolished at any time provided the abolition is effected in

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accordance with the rules and is bona fide, and does not have an oppressive, unreasonable or

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unjust effect on members or applicants for membership. There is nothing before me to

suggest that the abolition of the office is not bona fide, nor that it will have an oppressive,

unreasonable or unjust effect on members or applicants for membership.

[15]      Rule 40, which governs the composition of Federal Council, has been altered to

remove specific provisions pertaining to delegates from NSW and Victoria, and states where

the Federal Council has not approved a Branch to operate. The MEAA has confirmed that the

alterations are intended to remove “misleading and duplicative language” and do not affect

the current composition of Federal Council.

[16]      As noted above, the alterations to Rule 70A affect the composition of the National

Stunt Committee.
[2020] FWCD 4329

[17]      Rule 9, which relates to the payment of entrance fees, has been deleted. However, the

obligation to pay the entrance fee set by the Board is still provided for in Rule 7.

[18]      Rule 10 has been altered to provide that members will become unfinancial if payments

are not made within two calendar months of the due date, in lieu of the current provision,

whereby the point at which a member becomes unfinancial depends on the payment

arrangements in place for that member.

[19]      Sub-rule 63(j) provides that the MEAA may receive and hold money on trust for

members. Existing paragraph 63(l)(ii) allows the MEAA to deduct from money held on trust

for a member any amount owing by that member. The alteration limits the amount that can be

deducted to two years’ ordinary membership subscriptions.

[20]      The alterations to Rule 16 allow the Board to determine the means by which a member

can resign from membership.

[21]      Rule 55 currently provides for national general meetings to be convened for any

purpose, whilst Rule 56 provides for national general meetings for the specific purpose of

considering the MEAA’s financial reports. Rule 55 has been deleted and Rule 56 has been

amended so that it now covers national general meetings convened for any purpose.

[22]      Rule 71 has been altered to include as a potential offence by a member or associate

member “engaging in serious misconduct that may bring MEAA into disrepute, which may

include, but is not limited to, assault, harassment, vilification, or conviction of a serious

indictable offence.”

[23]      The Commission has previously refused to certify rules which make it an offence for a

member to engage in conduct which may bring an organisation into disrepute, on the basis

that they are so vague and uncertain as to impose oppressive, unreasonable or unjust

conditions, obligations or restrictions upon members, contrary to section 142(1)(c) of the Fair

Work (Registered Organisations) Act 2009 (the Act). Disciplinary rules must be considered

unreasonable if it is not sufficiently clear what type of conduct the member is required to

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avoid. The alteration before me is distinguishable because it contains a number of illustrative

examples. I consider that the proposed rule therefore provides sufficient advice to members of

the type of conduct likely to fall within its scope.

[24]      Rule 73, which sets out the process for investigating alleged violations or offences by

members, has been updated to provide, amongst other things, that investigations will be

conducted by a panel of Board members, and that procedural fairness shall be accorded to all

parties.

[25]      The alterations to Rule 75 stipulate that the MEAA’s rules can be altered by electronic

ballot of Federal Council.

[26]      Various alterations have been made to Rule 79, which governs elections. Instead of the

current requirement that nomination and election dates shall be set by the Board each even

numbered year, the alterations stipulate that the Board shall ensure that elections for Federal

and Branch officers are held every two years and shall fix the relevant dates no less than six

months before the expiry of each term. Changes have been made to the nomination form, and
[2020] FWCD 4329

candidates will be permitted to withdraw their nomination until five days after the close of

nominations.

[27]      The remaining alterations correct grammar and formatting and remove obsolete and

redundant references.

[28]      On 2 September 2020, Simon Collins, Federal President of the MEAA, gave consent,

under subsection 159(2) of the Act, for me 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 sub-rule 7(d), the existing sentence "For the purposes of these Rules members

residing in the Northern Territory shall be regarded as residing in South Australia" has

been retained.

 In sub-rule 16(a), the "s" was inadvertently deleted from "such". This has been

corrected to "Such".

 In rule 56, sub-rule (h) has been renumbered (g).

 In sub-rule 63A(i), where "the Branch Secretary or" was deleted, "the" has been

retained.

	In sub-rule 75(b), the words "meeting or the postal" have been deleted.
	In paragraph 79(c)(1)(viii), the words "on federal council" have been deleted.

[29]      In my opinion, the alterations that remain before me 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

< PR721894>

1

Re Food Preservers Union of Australia (1988) 79 ALR 138, 145, Northrop and Ryan JJ.

2

Imlach v Daley [1985] FCA 13; (1983) 7 FCR 457.

3

Majority in Saint v Australian Postal and Telecommunications Union and Others (1976) 30 FLR 393.

4

Roughan v Australasian Meat Industry Employees’ Union (1992) 36 FCR 536.

5

See discussion in The Association of Independent Schools of South Australia [2016] FWCD 3003.