Motor Trades Association of Queensland Industrial Organisation of Employers

[2024] FWCD 1026

[2024] FWCD 1026

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

Motor Trades Association of Queensland Industrial Organisation of Employers

(R2024/36)

CHRIS ENRIGHT MELBOURNE, 2 MAY 2024

Alteration of other rules of organisation.

[1]      On 18 March 2024 the Motor Trades Association of Queensland Industrial Organisation of Employers (the MTAQ) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules. A further declaration in support of the alterations was lodged on 22 March 2024.

[2]      The MTAQ seeks certification of the alterations under s.159 of the Fair Work (Registered Organisations) Act 2009 (the Act).

[3]      The particulars set out alterations to:

·    Rule 6.1 – Membership;

·    Schedule 1 – Schedule of Divion Chair Elections; and

·    Schedule 5– Industry Groups.

[4]      The MTAQ has specific rules for transacting alterations to their rules. One of which is 11.3, which, relevantly, states:

“The procedure for voting at any meeting provided for in these Rules shall be as follows:

(a)the Roll of Members Eligible to vote shall be prepared or caused to be prepared by the Secretary and delivered to the Returning Officer;” (my emphasis)

[5]      A possible interpretation of subrule 11.3(a) suggests that the meeting may be invalid if the Roll of Members Eligible to vote was not delivered to the Returning Officer prior to the meeting.

[6]      The MTAQ in its declaration dated 22 March 2024 in clause 2(d) advised that:

“The Roll of members Eligible to vote was prepared at the request of the Secretary and the Returning Officer is required only for Elections.”

[7]      The Act in s.143(1)(b) requires the rules of an organisation to provide for the conduct of elections by a returning officer. Subrule 1(ss) of the MTAQ’s rules defines the term “Returning Officer” as “the person appointed by the MTA Queensland Board and whose appointment is approved by the relevant industrial registrar to action that role for any elections”. This term is later mentioned in various rules throughout the rulebook,[1] and all of them (except rule 11.3) are in relation to elections.

[8]      As discussed in Australian Higher Education Industrial Association,[2] when interpreting the rules of a registered organisation, the words of the rules should be given a wide meaning taking into account both the ordinary or popular denotations of written text and the context in which the rules were made.

[9]      Having considered the ordinary meaning of “Returning Officer” in the context of rules of registered organisations and its defined meaning in MTAQ’s rulebook, I agree with the MTAQ’s explanation that the requirement to provide the roll of eligible voters to the Returning Officer only relates to elections. Read as a whole the context of the rules do not require the Returning Officer to be provided with the roll of eligible voters except in the context of the Returning Officer performing their duty in respect of an election. I further note that the Roll of Members Eligible to vote on the resolutions to alter the rules was prepared by the Secretary and all members received proper notification of the meeting. The provisions in rule 11.3 that are not specific to elections were followed.

[10]    In my view, the alterations have been made under the rules of the organisation.

[11]    However, the MTAQ may wish to consider further alterations to rule 11.3 to ensure that the risk of misunderstanding is rectified.

[12]    I now turn to the substance of the alterations.

[13]    Currently, the office holders of Chair, Vice-Chair and Secretary are eligible for re-election for a maximum of three terms.  Subrule 6.1(c) is altered to remove the term limits for these offices.

[14]    A registered organisations has the liberty to decide whether to fix a term limit in its rules. There is nothing in the Act, the Fair Work Act 2009 (Cth) (the FW Act) or the relevant regulations that prohibits candidates from being re-elected into offices they have previously held. Therefore, I am satisfied that nothing about the proposed removal of term limits is contrary to the Act or the FW Act or fails to comply with legislation. Nor is there any basis to conclude that the proposal is contrary to modern awards, enterprise agreements or is otherwise contrary to law.

[15]    The alterations to Schedules 1 and 5 are to change the name “Automotive Remarketing Division (ARD)” to “Used Car Division (UCD)”. These alterations are not controversial as they do not change the context or operations of corresponding rules. They do not require comment beyond expressing my opinion about the matters set out in section 159(1) of the Act.

[16]    In my opinion, the alterations comply with and are not contrary to the Act, the FW Act, 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] Rules 6.3(d), 11.3, 12.1(c), 12.2, 13.3, 13.4(e), 13.6, 13.7, 13.8, 13.9, 13.10, 14.1, 14.2, 14.3, 14.4, 14.5, 14.6, 15, 16.1, 16.2(b), 17, 17.1 and 18 of MTAQ’s rulebook.

[2] Australian Higher Education Industrial Association [2024] FWCD 1008.

Printed by authority of the Commonwealth Government Printer

<PR772807>