National Tertiary Education Industry Union

[2014] FWCD 9460

[2014] FWCD 9460

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
National Tertiary Education Industry Union
(R2014/261 and R2013/128)
MR ENRIGHT	MELBOURNE, 31 DECEMBER 2014
Alteration of other rules of organisation.

[1]        On 24 October 2014 the National Tertiary Education Industry Union (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 (R2014/261).

[2]        The particulars set out alterations to rules 4, 7, 12, 17, 62 and 63 and inserts new rules

7A and 70D to the rules of the organisation. In particular, the rules provide for notices to be

sent via e-mail, voting of National Council postal ballots to be electronic, clarify provisions

related to the expulsion of members and allow bodies other than National Council to make

urgent decisions by flying minute.

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

process and on 19 December 2014 a supplementary declaration was received.

[4]        On 7 October 2013 the organisation lodged with the Commission a notice and

declaration setting out particular of alterations to the rules of the organisation (R2013/128).

[5]        The particulars provide for alterations to rules 18.4E, 18.4F, 18.4G, 18.4H, 26, 62 and

70B, and the insertion of new Schedule F into the rules of the organisation. The insertion of

new Schedule F was 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. In particular, the alterations provide for specified disclosures, the

implementation of policies relating to expenditure and the mandatory training of officers with

duties that relate to the financial management of the organisation.

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[6] In my decision of 10 January 2014, I certified the alterations to rules 18.4E, 18.4F,

18.4G, 18.4H, 26, 62, but deferred consideration of the alterations to rule 70B pending the

organisation’s submissions as to whether these alterations contravene the requirement for a

secret ballot for the election of holders of office.

[7]        On 11 April 2014 the organisation made a submission regarding the alterations to rule

70B. The organisation argued that rule 70B in neither its existing nor proposed forms, is

contrary to or inconsistent with the secret ballot requirements of section 143(1)(e) of the Fair

Work (Registered Organisations) Act 2009 (the Act). The organisation then argued in the

[2014] FWCD 9460

alternative that even if the Rule 70B were contrary to the Act, the proposed alteration is not.

Rule 70B(b)(ii) states:

Any person appointed to exercise a proxy shall do so in accordance with any

instruction given by the appointer (which instructions need not be in writing).

[8]        After giving careful consideration to the organisation’s submissions, with respect, I do

not accept the organisation’s submission that rule 70B, in either form, does not contravene the

Act. In the Registrar’s decision of Australian Education Union R No 30097 of 1996 and R No

30096 of 1996, the Registrar stated:

My concern is therefore that when a vote is cast on behalf of another member, the

nature of that vote must be known to the person casting the vote by virtue of the

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very fact that they cast that vote.

[9]        While I was assisted by the organisation’s submissions, I am not persuaded that I

should depart from the logic in Australian Education Union R No 30097 of 1996 and R No

30096 of 1996. In my opinion, when a person appoints a proxy to cast the appointer’s vote

and gives instructions in accordance with rule 70B(b)(ii), the ballot is no longer secret and

therefore contravenes section 143(1)(e) of the Act.

[10]      In regards to the organisation’s alternative argument, I note that until my previous

decision of 10 January 2014, the current rule has not been the subject of recent analysis or

consideration by the Commission or its predecessors. The electronic records of the

Commission establish that the rule has existed in its current form since at least 8 May 2000.

Now that the rule is before me for consideration, and as stated in the paragraph above, I have

concluded that current rule 70B and proposed rule 70B offend against section 143(1)(e) of the

Act. The alteration amends the current offending rule by extending or at the very least

clarifying the scope of proxy voting for the secret ballot. Therefore, it cannot be said that the

alteration is independent of the offending rule.

[11]      After discussions with Commission staff, on 19 December 2014 the organisation gave

an undertaking to delete paragraph 70B(b)(ii). In my opinion, this paragraph compromises the

secrecy of the ballot and therefore does not comply with the Act. The undertaking was given

by Mr Ken McAlpine, National Education and Training Officer, with the authority of the

General Secretary and National Officers.

[12]      On the basis of the undertaking given to remove this rule as expeditiously as possible,

in the first quarter of 2015, I am willing to certify the alterations to rule 70B.

[13]      On the information contained in the notices, I am satisfied the alterations have been

made under the rules of the organisation.

[14]      In my opinion, on the basis of the undertaking given, 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.

[2014] FWCD 9460

DELEGATE OF THE GENERAL MANAGER

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[2014] FWCD 36

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