Motor Trades Association of Queensland Industrial Organisation of Employers

[2020] FWCD 6282

[2020] FWCD 6282

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

(R2020/184)

MURRAY FURLONG MELBOURNE, 23 DECEMBER 2020

Alteration of other rules of organisation.

[1] On 27 October 2020 the Motor Trades Association of Queensland Industrial Organisation of Employers lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to its rules. Additional information in support of the application was provided on 19 November 2020.

[2] On the information contained in the notice and subsequently provided, I am satisfied the alterations have been made under the rules of the organisation.

[3] The particulars set out alterations to Schedules 1, 2 and 3 of the rules.

[4] The alterations allow the organisation to deal with the current COVID-19 pandemic by extending the current terms of office for Division, District, and Executive offices.

[5] All offices in the organisation presently have two-year terms. The current two-year terms will be extended by one year. Thereafter all terms of office revert to two years. The alterations have two effects. First, elections which would have been held in 2020 will now take place in 2021. Secondly, elections which would have taken place in 2021 will be pushed back to 2022. The electoral cycle for scheduled elections in the organisation remains synchronised as a result.

[6] I have previously considered alterations which extend the current terms of office in a registered organisation in response to restrictions associated with the COVID-19 pandemic.¹

[7] Broadly, I need to be satisfied that the alterations are unambiguously intended to apply to the current terms of office, do not have harsh effects and do not interfere with vested interests or accrued rights. Nor can they impose an oppressive, unreasonable or unjust condition upon members or applicants for membership within the meaning of section 142(1)(c) of the Fair Work (Registered Organisations) Act 2009 (RO Act).

[8] Based on the text of current alterations and the material lodged in support, it is clear that these alterations are intended to operate in relation to the current terms of office.

[9] Extending the current terms of office is a rational and proportionate response to the circumstances that the Motor Trades Association of Queensland Industrial Organisation of Employers has found itself in. Extending the terms of office, by a relatively short period, in order to postpone elections does not impose an oppressive, unreasonable or unjust condition where:

• elections were not able to be held in accordance with the timetable set out in the current rules,

• the completion of elections for office in registered organisations continues to be delayed and

• a substantial backlog of elections is being cleared.

[10] I also note that in the absence of the current alterations, the Motor Trades Association of Queensland Industrial Organisation of Employers could find itself in breach of its rules due to exceptional circumstances and through no fault of its own. In the circumstances, the alterations do not have harsh effects.

[11] Finally, the alterations do not interfere with vested interests or accrued rights.

[12] Because the completion of elections for office in registered organisations continues to face delays and a substantial backlog remains on foot, the alterations in the current matter are an appropriate response. This remains so even though some of the COVID-19 related restrictions are now being eased.

[13] In my opinion, the alterations comply with and are not contrary to the RO 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 RO Act.

DELEGATE OF THE GENERAL MANAGER

Printed by authority of the Commonwealth Government Printer

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¹ See for instance The Australian Industry Group; R2020/81; 29 July 2020; [2020] FWCD 3662.