National Electrical Contractors Association, The-Western Australia Chapter

[2015] FWCD 1722

[2015] FWCD 1722

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
The National Electrical Contractors Association
(R2015/40)
MR ENRIGHT	MELBOURNE, 20 APRIL 2015
Alteration of other rules of organisation.

[1]        On 2 March 2015, the Western Australian Chapter of The National Electrical

Contractors Association (the Chapter) lodged with the Fair Work Commission (the

Commission) a notice and declaration setting out particulars of alterations to its rules.

[2]        The particulars set out alterations to Rules 8, 9 and 10. The alterations update the

name of the legislation and enable the Chapter to give notice to its members of Annual or

Special General Meetings by email. The alterations also provide time frames for when notice

is taken to have been received when sent by mail or email.

[3]        A question arises as to whether the rule alteration process was complied with. The

declaration supplied with the notification demonstrates that one person attended the Chapter

Council meeting and voted ‘by proxy’. Generally, the rules of an organisation must provide

for proxy voting before its members will have the right to appoint a proxy as there is no right

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to a proxy vote under common law. Rule 35 of the National Rules provides for the exercise

of a proxy vote at any general meeting of a Chapter but there appears to be no provision,

within either the National or the Western Australia Chapter Rules, for a proxy vote at a

Chapter Council meeting. There does not seem to be any facility for the members to vote by

proxy.

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[4] The Chapter Council consists of nine members and the Chapter Secretary. The

declaration supplied with the notification attests that eight Council Members attended in

person and that all eight of those members voted in support of the rule alteration. As such, the

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proxy vote was not required for either the quorum or the resolution approving the rule

alterations. The question becomes then, whether the meeting or the vote were invalidated by

the presence of an unauthorised proxy vote.
[2015] FWCD 1722

[5]        The situation is analogous to when a person attends or votes at a meeting they are not

qualified to attend. In Steuart v Oliver, Joske J stated that:

There is no general rule that where a person who is not a member of a body, whether

this is due to disqualification or lack of qualification or otherwise, is present at a

meeting of the body, participates in its proceedings or even votes, this necessarily

invalidates either the vote or the whole of the proceedings at the meeting. The

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circumstances of each particular case have to be considered.

[6]        In this instance, the unauthorised vote was not a stranger to the proceedings but

another member of the Council and there is no suggestion that the proxy was delivered with

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anything other than a bona fide belief that it was allowed. In any event, the decision and

quorum of the meeting itself did not turn upon the proxy’s presence. As such, I am satisfied

that the proxy did not act to invalidate either the meeting or the vote.

[7]        On the information contained in the notice and further supplementary declaration, I am

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

[8]        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

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1

See for instance Squires v Stephenson (1983) 4 IR 84 at 92 or Joske’s Law and Procedure at meetings in Australia,

Thomson Reuters, 2012, pages 27 and 28.

2

Western Australia Chapter Rules, rule 5(b).

3

4 members, see Western Australia Chapter Rule 12(b).

4

Steuart v Oliver (No. 2) (1971) 18 FLR 83 at 84.

5

Barter v Maher [1972] FLR 10 at 25.