Musicians' Union of Australia

[2014] FWCD 8636

[2014] FWCD 8636

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Musicians' Union of Australia
(R2013/123)
MR ENRIGHT	MELBOURNE, 3 DECEMBER 2014
Alteration of other rules of organisation.

[1] On 20 August 2014 the Musicians' Union of Australia (the organisation) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to the rules of the organisation. The alterations were made for the purpose of complying with provisions of the Fair Work (Registered Organisations) Amendment Act 2012 (the Amendment Act) regarding the rules of registered organisations. The alterations also provide for membership application and banking processes of the organisation.

[2] The particulars set out alterations to rules 3, 7A, 16, 39, 40, 41, 47, 48 and 88 and insert new rules 5A, 5B and 16A of the rules of the organisation.

[3] Further information was sought from the organisation regarding the rule altering

process and on 28 November 2014 a supplementary declaration was received from Mr
Terence Noone, Federal Secretary.

[4] A question arises as to whether the rule alteration process was complied with when

transacting the alterations. The organisation has relied on rule 32(f) of the organisation’s rules
to transact the alterations. Rule 32(f) reads as follows:

A Special Conference of the Federal Council shall notwithstanding that notice thereof in accordance with paragraph (c) hereof has not been given previously to the commencement of such Special Conference, have power to accept and decide on any motion (including any motion proposing the making of a new Rule or the amendment or the amendment or rescission of an existing Rule) proposed by any delegate at such conference.

[5] However, there are other rules which appear relevant to the process by which the organisation can alter its rules. Rules 60 and 60A read as follows:

60 - NEW RULES AND ALTERATIONS OF RULES

Any three Branches vide Rule 18(a) of the union whose combined financial membership constitutes a majority of the financial membership of the federation may petition the Federal Council to make or frame any new Rule or Law or rescind, vary or

[2014] FWCD 8636

alter any existing Rule or law for the better working of the Union or of such Branch. In the event of the Federal Council not consenting or agreeing to such petition, then a referendum shall be taken on the matter as per Rule 58 hereof and if on such referendum being taken a majority of the members are in favour of such new Rule or law or the rescission, variation or alteration of such Rule or law, then the Federal Council shall at once take all the necessary and legal steps to give effect to the same and the Federal Secretary shall also immediately cause the same to be registered in the proper Office of the Industrial Registrar of the Commonwealth of Australia.

60A - NEW RULES AND ALTERATIONS OF RULES BY POST

(a)	Where -
(i)	the Federal Executive;
(ii)	any three Federal Officers of the Union; or

(iii) any three Branches vide Rule 18(a) of the Union whose combined financial membership constitutes a majority of the financial membership

submits a proposal or motion to the Federal President or Federal Secretary for Federal Council to vote by letter or telegram to make or frame any new Rule or to rescind vary or alter any existing Rule the Federal President or Federal Secretary shall submit the proposal or motion for decision of the Federal Council in accordance with this Rule.

(b) The Federal President or Federal Secretary shall as soon as practicable and in any event within seven (7) days of such proposal or motion being received send by certified mail to each member of Federal Council at the address appearing for such member in the last most recent records of the Union or of the Industrial Registrar a copy of the proposal or motion together with a statement of reasons in support of the proposal or motion;

(c) On receipt of a proposal or motion and a statement of reasons in accordance with this rule each member of Federal Council shall vote in favour or against the proposal or motion and shall communicate his or her vote by pre-paid letter telegram telex or facsimile addressed to the Federal President or Federal Secretary seeking such vote;

(d) A proposal or motion shall be determined in the affirmative if within 28 days of forwarding the proposal or motion in accordance with this rule the Federal President or Federal Secretary has received written advice to that effect by pre-paid letter telegram telex or facsimile from a majority of members of the Federal Council voting on such proposal or motion and such members represent a majority of members of the Committee of any three Branches vide Rule 18(a) whose combined financial membership constitutes a majority of the financial membership of the Union.

[6] I note too Rule 30(f) is similar to rule 32(f), although it relates to the annual meeting of the Federal Council rather than a special meeting. It is therefore necessary to consider whether rules 60 and 60A exclusively set out the initial steps to be taken if the Federal

[2014] FWCD 8636

Council is to alter the rules, or whether on the other hand rules 30(f) and 32(f) provide other discrete mechanisms.

[7] It is well established that the rules of registered organisations should be read in a practical and common sense way which avoids giving them an unduly technical, narrow or legalistic construction. For instance, in a review of various authorities addressing the proper approach to the construction of the rules of registered organisations, Robinson J in Re The

Australian Workers’ Union (1983) 11 IR 283 observed that:

(h)istorically union rules have been accorded a special place in the canons of
construction because they are likely to have been drawn by laymen for the use of

laymen.

This approach is outlined by Isaacs J in ASE v Smith (1913) 16 CLR 537 at 559:

‘Now, I am disposed to give a very broad interpretation to the terms
of association in a society of this nature. I am prepared to read them, not as
the strictly prepared and technically framed stipulations inserted in some
legal instrument of lawyers, but as the plain and business-like statement of
members of the trades concerned, combining for mutual support, and setting
down the terms of their combination in language which is applicable to
their situation and intended (subject to the presumptive intendment of
legality) to be understood apart from technical rules of interpretation.’

Statements by members of the High Court which endorse a generous approach to the intervention of union rules include the following:

Dixon J in R v Hickman (1945) 70 CLR 598 at 613; Barwick CJ in R v Aird (1973) 129 CLR 654 at 659;

Gibbs J in R v Holmes (1977) 140 CLR 63 at 73;

Mason J in R v Cohen (1979) 53 ALJR 719 at 723; 27 ALR 263 at 270.[1]

[8] Isaacs J’s comments in Smith appear applicable to describe the rules of the organisation. There are a number of occasions where the rules seem internally inconsistent, less than clear or ambiguous. The intended interrelationships, if any, between rules 30(f), 32(f), 60 and 60A provides one example.

[9] I note that the organisation has previously transacted alterations to its rules via rule 30(f) and were certified by a predecessor of the Commission. Whilst not determinative of the current question, this fact at least suggests a historically consistent understanding of the relevant rules on the part of the organisation and an intention that rules may be transacted in this manner.

[10] In my opinion, it is not clear whether rules 60 and 60A provide an exclusive code of the rule altering process. Relying on Robinson J in Re The Australian Workers’ Union, I intend to adopt a generous approach and interpret that rules 60 and 60A, on balance, do not provide an exclusive code, but are simply avenues whereby Branches, the Federal Executive or Federal Officers of the organisation can petition or propose rule alterations. This is reflected by the use of the word ‘may’ in rule 60. Rule 32(f) provides a mechanism by which Federal Council delegates may propose a motion to alter the rules of the organisation during a [2014] FWCD 8636

Special Conference of Federal Council by using the power to alter rules conferred upon
Federal Council of rule 19(p). Rule 30(f) operates in a similar manner.

[11] Hence, on the information contained in the notice, I am satisfied the alterations have been made under the rules of the organisation. Nonetheless, in light of my comments, I strongly urge the organisation to amend its rules to provide certainty that rules 60 and 60A do not provide an exclusive code by which the rules of the organisation may be altered.

[12] On 1 December 2014, Mr Terence Noone, Federal Secretary, gave consent, under subsection 159(2) of the Fair Work (Registered Organisations) Act 2009, for the Delegate to make various amendments to the alterations for the purpose of correcting typographical, clerical or formal errors. Accordingly the following corrections have been made:

	Rule 16(2): The space between “Australia” and the comma is deleted.
	Rule 16A(1): The space between “Australia” and the comma is deleted.
	Rule 16A(3)(b)(ii): The semi-colon after the words “sub rule” should be a full stop.
	Rule 16A(4)(b)(ii): The semi-colon after the words “sub rule” should be a full stop.
	Rule 16A(7): A comma after (4) is inserted.
	Rule 16A(9): The space between “Australia” and the comma is deleted.
	Rule 16A(16): A space between “rule” and “15” is inserted.
	Rule 16A(17): A space between “rule” and “15” is inserted.
	Rule 16A(17): The word “do” is replaced by “does”.
	Rule 16A(20): The reference to sub rule “(8)” is changed to “(9)”.

[13] In my opinion, the alterations comply with and are not contrary to the Fair Work (Registered Organisations) Act 2009, 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 Fair Work (Registered Organisations) Act 2009.

DELEGATE OF THE GENERAL MANAGER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR558449>