National Tertiary Education Industry Union

[2014] FWCD 36

[2014] FWCD 36

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
National Tertiary Education Industry Union
(R2013/128)
MR ENRIGHT	MELBOURNE, 10 JANUARY 2014
Alteration of other rules of organisation.

[1] On 7 October 2013 the National Tertiary Education Industry Union (the organisation)

lodged with the Fair Work Commission a notice and declaration setting out particulars of
alterations to the rules of the organisation.

[2] The particulars provide for alterations to rules 18.4E, 18.4F, 18.4G, 18.4H, 26.2, 62.1, 62.3 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.

[3] The alterations to the other rules amend the powers of the Division Councils, provide

for a rule altering procedure in the case mandatory legislative requirements, and clarify proxy
arrangements for National Councillors.

Proxy votes at elections

[4] The alterations to rules 18.4E, 18.4F, 18.4G and 18.4H clarify proxy arrangements for National Councillors. The alterations to rule 70B provide for proxy arrangements for voting in elections held at meetings of National Council.

[5] Existing rule 70B enables National Councillors to appoint another person (being a person already entitled to vote as a member of National Council) to exercise his/her vote in respect of elections at a meeting of National Council. The alteration to sub-rule 70B(b) clarifies that proxies made in accordance with sub-rules 18.4D to 18.H are valid for this rule. New sub-rule 70B(d) provides that this rule applies, mutatis mutandis, to elections conducted at other specified meetings.

[2014] FWCD 36

[6] Subsection 143(1)(e) of the Fair Work (Registered Organisations) Act 2009 (the RO Act) mandates that the rules of an organisation must provide for a secret [my emphasis] ballot where a ballot is required for the election of holders of office. Existing sub-rule 70B(b)(ii) provides that a person appointed to hold a proxy for an election shall exercise that proxy in accordance with any instructions given by the appointer. An instruction by the appointer would appear to contravene the requirement for secrecy.

[7] On 7 January 2014 staff of the Regulatory Compliance Branch of the Commission contacted the organisation for the purpose of clarifying whether existing rule 70B, and therefore the alterations to this rule, contravene the requirements of the RO Act for a secret ballot. In order to assist me in my determination of whether or not the alterations to rule 70B comply with s143(1)(e) of the RO Act, the organisation was offered the opportunity to make a submission on this point.

[8] Consequently I have decided to defer consideration of the alterations to rule 70B to

allow the organisation the opportunity to make a submission as to whether these alterations
contravene the requirement for a secret ballot for the election of holders of office.

The remaining alterations

[9] As noted in paragraph [2] the alterations also include alterations for the purpose of complying with provisions of the Amendment Act. The organisation acted in a timely manner to ensure that its rules comply with the requirements of the Amendment Act. Postponing a decision on these alterations would leave the organisation in contravention of several provisions of the RO Act which go to the financial accountability of the organisation. In my view it would be unreasonable to postpone consideration of the alterations for the purpose of complying with the provisions of the Amendment Act.

[10] Although the same legal consequences do not flow from deferring consideration of the alterations to rules 18.4E, 18.4F, 18.4G, 18.4H, 26.2, 62.1 and 62.3, nonetheless the organisation made these alterations over three months ago and is entitled to have them considered in a timely manner.

[11] Therefore I must turn my mind to whether or not alterations to rule 70B are severable from the remainder of the alterations.

Severability

[12] In determining whether or not the alterations to rule 70B are severable from the

remainder of the alterations, I refer to the case In Re Food Preservers’ Union of Australia,i
in which the question of severing rules was considered. The majority held that: :

....where an organisation has made alterations to a number of its rules, each rule and alteration being completely independent of any other rule or alteration, the Registrar would be free to give his certificate with respect to some of those rule alterations and to refrain from giving his certificate with respect to others. On the other hand, where alterations to rules are dependent upon other alterations to rules, difficulties arise where the certificate is given to some of the alterations and not to others.ii

[2014] FWCD 36

[13]      Their Honours go on to note:

There would need to be a full examination of all the rules to ascertain whether the meaning and effect of the rules to which the certificate had been given had been altered or modified by the fact that some rules or parts of rules have not come into effect.iii

[14] The question of severability therefore turns upon whether or not the alterations to rule 70B can be regarded as completely independent of the remaining alterations. I would need to be satisfied that the meaning or effect of the other alterations would not be affected if the alterations to rule 70B were not certified.

[15] As noted in paragraphs [2] and [3] of this decision, the alterations are for the purpose of complying with provisions of the Amendment Act, a procedure for altering rules, and clarification of proxy arrangements at National Council meetings. It is self-evident that the alterations for the purpose of complying with provisions of the Amendment Act and the procedure for altering rules are independent of alterations to the rules regarding proxy votes for elections.

[16] The question of whether rules regarding proxy votes for elections are independent of rules regarding proxy arrangements at National Council is less clear. The alterations to rule 70B(b) explicitly refers to rules regarding the proxy arrangements at National Council (rules 18D-18H), suggesting that the rules are interdependent. However, rules 18D-18H set out who can be given a proxy and the manner of nominating a proxy at any meeting of National Council meetings, irrespective of whether an election is held. Rule 70B only goes to proxies for voting at elections. If the alterations to rule 70B were not certified at this point in time, this would not have any effect on the rules that provide for proxies more generally. Consequently, it is my opinion that the alterations to rule 70B are severable from the other alterations contained in the notice of particulars.

Regulation 126

[17]      Regulation 126(2)(c) of the Fair Work (Registered Organisation) Regulations 2009

requires an officer of the branch to declare ‘that the particulars set out in the notice are true and correct to the best of the knowledge and belief of the signatory’. Mr Grahame McCulloch, the General Secretary has declared that ‘the particulars of the alteration to the Rules...set out in the Notice...are, to the best of my knowledge and belief, correct.’

[18] The General Secretary’s statement does not comply strictly with the requirements of

regulation 126(2)(c). The required declaration must also state that the particulars are true to
the best of the knowledge and belief of the signatory.

[19] Regulation 126(3) provides me with the discretion to refuse to certify an alteration of a registered organisation’s rules if regulation 126 is not complied with. I have chosen not to exercise this discretion in this instance, notwithstanding the omission in the declaration of the General Secretary. I have not exercised this discretion because I am satisfied that the particulars as set out in the notice are true. That said, it is incumbent on the relevant officer to make a declaration that meets fully the requirements of regulation 126(2) in any future notifications of rule alterations.

[2014] FWCD 36

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

[21] In my opinion, the alterations to rules 18.4E, 18.4F, 18.4G, 18.4H, 26.2, 62.1 and 62.3 and new Schedule F comply with and are not contrary to the RO Act, the Amendment 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. In my opinion, the alterations to rule 70B are severable from the other alterations contained in the notice of particulars. I have decided to defer consideration of the alterations to rule 70B to allow the organisation the opportunity to make a submission as to whether these alterations contravene the requirement for a secret ballot for the election of holders of office.

DELEGATE OF THE GENERAL MANAGER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR546418>

i (1988) 79 ALR 138

ii Re Food Preservers’ Union of Australia and Another (1988) 79 ALR 138 per Northrop & Ryan JJ at 145.

iii Ibid at 146.