Motor Trades Association of Queensland Industrial Organisation of Employers
[2020] FWCD 3360
•1 JULY 2020
| [2020] FWCD 3360 |
| 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
(R2019/153, R2020/66)
| MURRAY FURLONG | MELBOURNE, 1 JULY 2020 |
Alteration of other rules of organisation.
On 3 December 2019 the Motor Trades Association of Queensland Industrial Organisation of Employers (the Association) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules. These alterations were given matter number R2019/153. Further information in support the application was lodged on 18 June 2020
The particulars set out alterations to Rules 6, 22 and Schedule 3.
It appears that in making the alterations, an aspect of the organisation’s rule altering procedure was not strictly complied with. In accordance with paragraph 159(1)(c) of the Fair Work (Registered Organisations) Act 2009 (the Act), I am required to be satisfied that the alterations have been made under the rules of the organisation.
Under Rule 22, the organisation’s rules may be altered at a General Meeting of its members. General meetings are required to be called by the Association’s Chairman on such a day and place as he, or she, determines. However, in this case the General Meeting that transacted the alterations was called by the Association’s Secretary.
In response to enquiries made by Commission staff, the Association’s Secretary stated that no member made contact or raised any issues or concern due to the Secretary issuing the notice of the meeting for the Annual General Meeting.
In Master Grocers Australia Limited,[1] I considered whether a failure to strictly comply with the rule-altering procedure invalidated the resolution in question:
[6] The question of whether a registered organisation must strictly comply with its rule altering procedure was considered by Delegate Enright in Master Builders’ Construction and Housing Association of the Australian Capital Territory.[2] Delegate Enright applied the test expressed in Project Blue Sky Inc v Australian Broadcasting Authority[3](Project Blue Sky) and subsequently applied to the rules of unincorporated associations in Re: Australian Principals Federation.[4]
[7] In Project Blue Sky, a majority of the High Court of Australia found that “[a]n act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect”.[5] The majority rejected the approach traditionally taken by the courts in distinguishing between mandatory and directory obligations, finding that “[a] better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid”.[6]
[8] A Full Bench of the Australian Industrial Relations Commission in Re: Australian Principals Federation applied these principles to alleged non-compliance with the rules of an unincorporated association, finding that
the test is whether it was a purpose of the rules that an act done in breach of a rule should be invalid. In determining the question of purpose, regard must be had to the language of the relevant rule and the scope and object of the whole of the rules.[7]
[9] In my view, this reasoning applies equally to the rules of registered organisations…
The relevant question is whether it is a purpose of the rules that business transacted at a General Meeting would be invalidated if the meeting was called by the Association’s Secretary rather than its Chairman. An objective assessment of the relevant rule, as well as the scope and object of the rules as a whole suggests not. Under Rule 7.3, the Secretary is responsible for causing notice of all meetings connected with the Association to be issued. Under Rule 11.1, the Secretary must give notice of a General Meeting after the meeting has been called by the Chairman. The Secretary is also responsible for keeping minutes of the General Meeting. The Association’s rules contain no provision that sets out a rationale for placing the duty to call a meeting on one person and the duty to give notice of that meeting to someone else. None of the Association’s members responded to the apparent conflation of the two duties on this occasion, suggesting that they found it unremarkable.
In the circumstances, on the information contained in the notice and subsequently provided I am satisfied the alterations have been made under the rules of the organisation. I remind the Association that the preferable course is to ensure that it strictly adheres to all aspects of its rule altering procedure in future.
After examining the alterations, staff of the Commission raised concerns that the alteration proposed to Rule 6 could be contrary to the Act. As a consequence, the organisation transacted further alterations to Rule 6. The latter alteration removed the offending provision and supersedes the initial alteration. Particulars of this alteration and an accompanying declaration were lodged in the Commission on 26 May 2020 and given matter number R2020/66.
Further information in support of the application was lodged on 18 June 2020.
On the information contained in the notice and subsequently provided, I am satisfied this alteration was made under the rules of the organisation.
As they fall for determination, the alterations:
· Prospectively increase the terms of office for the Chairman, Vice-Chairman and Secretary of MTA Queensland from one to two years and staggers the introduction of the new terms so the Chairman and Vice-Chairman are elected one year and the Secretary is elected the next;
· Provide that the Chairman, Vice-Chairman and Secretary can hold office for a maximum of three terms;
· allow alterations to rules, which are made in response to post election reports provided by the Australian Electoral Commission (AEC), to be made by the Association’s Committee of Management rather than its members assembled in General Meeting; and
· set out in tabular form the years in which the biennial election of the MTAQ Chairman, Vice-Chairman and Secretary will be held
Limiting the number of occasions that an office bearer may hold office to three two-year terms allows officers to obtain sufficient experience to facilitate the Association’s effective operation and efficient management, while simultaneously encouraging member participation in the Association. In both respects the alteration is consistent with the Parliamentary intentions and standards which underpin the Act.
Post-election reports are issued by the Australian Electoral Commission under section 197 of the Act. Among other things, they must identify any rules of the Association which because of ambiguity or other reason, were difficult to interpret or apply.[8] Allowing the Committee of Management to alter the Association’s rules in response to technical commentary from the AEC is consistent with an existing power it has, under Rule 22.1, to make alterations “at the direction of the relevant industrial registry so as to ensure compliance with the provisions of the relevant industrial legislation”.
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
[1] [2017] FWCD 2547.
[2] [2013] FWCD 3600.
[3] (1998) CLR 355.
[4]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.
[5] (1998) CLR 355 at [92].
[6] Ibid at [93].
[7] PR973525 at [55].
[8] See Regulation 141(1)(b) of the Fair Work (Registered Organisations) Regulations 2009.
Printed by authority of the Commonwealth Government Printer
< PR720521>
0
0
0