National Tertiary Education Industry Union
[2024] FWCD 1051
•26 SEPTEMBER 2024
| [2024] FWCD 1051 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
National Tertiary Education Industry Union
(R2024/78)
| CHRIS ENRIGHT | MELBOURNE, 26 SEPTEMBER 2024 |
Alteration of other rules of organisation.
On 6 June 2024 the National Tertiary Education Industry Union (the NTEU) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules. Further information in support of the alterations was lodged on 25 September 2024.
The NTEU seeks certification of the alterations under section 159 of the Fair Work (Registered Organisations) Act 2009 (the Act).
The particulars set out alterations to:
· Rule 18.2 – National Executive; and
· insert a new Schedule 7 – Delegates.
On the information contained in the notice and declaration, I am satisfied the alterations have been made under the rules of the organisation.
The alterations to Rule 18.2 empower the National Executive to establish, administer, and amend the Workplace Delegates policy provided for in Schedule 7.
Proposed Schedule 7 sets out provisions relating to the establishment of policy and procedures regarding the appointment of workplace delegates and their functions. Rule 1 of this Schedule states that the purpose of the Schedule is to provide for the appointment of delegates to exercise functions and rights conferred by relevant legislation.
Provisions for delegates appear under many forms of legislation, regulations and industrial instruments, including in new provisions regarding workplace delegates in sections 350A, 350B and 350C of the Fair Work Act 2009 (Cth) (FW Act). The alterations to the NTEU rules were made in the context of these new provisions and it appears that they are designed to predominantly address that context.
Among other things, I am required to consider whether the alterations comply with and are not contrary to the FW Act.[1] Consequently, the discussion that follows considers the alterations in the context of the new workplace delegates provisions in the FW Act.
That said, I am also required to consider whether the alterations are not otherwise contrary to law.[2] Irrespective of which statutory scheme applies to a particular NTEU delegate, the principle that the rules cannot undermine the relevant statutory scheme equally applies. The meaning and application of the proposed rules regarding delegates must be confined to the relevant statutory scheme.
The Federal Statutory Scheme Regarding Workplace Delegates
The FW Act provides for rights and protections for workplace delegates (sections 350A, 350B and 350C). Subsection 350C(1) provides that:
“A workplace delegate is a person appointed or elected, in accordance with the rules of an employee organisation, to be a delegate or representative (however described) for either or both of the following:
(a)members of the organisation who work in a particular enterprise;
(b)members of the organisation who perform work for, or that has been arranged or facilitated by, a particular regulated business.”
Subsections 350C(2) and (3) of the FW Act provide that workplace delegates are entitled to certain rights, such as representation of and communication with members and other persons entitled to be members, and access to workplace facilities.[3]
In two recent decisions I have considered rules regarding workplace delegates and the relevant provisions in the FW Act.[4] In these decisions, I determined that:
· the word “delegate” in a rulebook can have a different meaning to workplace delegate as defined in the FW Act, depending on the context of the rule;[5]
· a workplace delegate, as defined in the FW Act, must be interpreted as a person who works in the enterprise or regulated business;[6]
· rules regarding workplace delegates must not undermine the statutory scheme as set out in the FW Act;[7]
· rules must not purport to extend workplace delegate rights or obligations to persons who would not be so entitled under the FW Act;[8]
· rights endowed by a union on workplace delegates can only be rights regulating their relationship with the union, and cannot extend to parties external to the union.[9]
While keeping these principles in mind, I turn to the proposed alterations.
The proposed alterations
As stated above, the alterations to Rule 18.2 empower the National Executive to establish, administer, and amend the workplace delegates policy outlined in proposed Schedule 7.
Proposed Schedule 7 provides for the establishment of policy and procedures regarding appointment of workplace delegates (the Delegates Policy), and the powers of the National Executive to establish and amend the Delegates Policy. The provisions in Schedule 7:
· establish that the purpose of Schedule 7 is to provide for the appointment of delegates to exercise the functions and rights conferred through relevant legislation (rule 1 of Schedule 7);
· give the National Executive powers to establish and amend procedures contained in the Delegates Policy (rule 2 of Schedule 7);
· establish that the Delegates Policy must include the manner in which a member becomes a delegate, the functions of delegates, and the manner an employer is advised of the identity and function of a delegate (rules 2 and 3 of Schedule 7);
· clarify that a delegate is not an officer (rule 4 of Schedule 7);
· enable the Delegates Policy to provide for the appointment of delegates or for procedures for democratic selection of delegates[10] (rule 5 of Schedule 7);
· enable the Delegates Policy to include a provision that certain officers of the Union are delegates by reason of their holding office (subrule 5(d) of Schedule 7); and
· outline the limitations of the Delegates Policy and clarify that a technical failure to comply with Delegates Policy does not affect the validity of the policy or appointment of a delegate (rules 6, 7, and 8 of Schedule 7).
Does proposed subrule 2(b) of Schedule 7 operate to create delegates who do not work at the enterprise or regulated business?
In Re IEUA[11] I concluded that the proper interpretation of section 350C of the FW Act is that workplace delegates are confined to persons who work at the enterprise or regulated business. The purpose of proposed Schedule 7 is to provide for delegates who are entitled to the functions and rights conferred through relevant legislation, including the FW Act (rule 1 of Schedule 7). Therefore, if the proposed rules were to extend the definition of workplace delegates beyond what is provided in the FW Act, the rules would be contrary to the FW Act because they would confer rights on persons not so entitled.[12]
Proposed subrule 2(b) of Schedule 7 provides that:
“The National Executive must establish, and may amend, procedures (the Delegates Policy) about:
…
b. The functions of delegates, which may include the work area or type of members, or the subject-matter, to which those functions relate;”
On its face, this subrule could be interpreted as enabling the National Executive to establish functions that include work areas, types of members or subject-matters beyond the scope of an enterprise or regulated business. In other words, the subrule could be interpreted as providing for delegates who do not work at the same enterprise or regulated business as the members that they represent.
However, as I concluded in Re IEUA,[13] the National Executive can only act within the framework of the FW Act. In my view, this means they cannot establish functions that would enable section 350C workplace delegates to represent members outside their enterprise or regulated business. Therefore subrule 2(b) of Schedule 7 must be interpreted as entitling the National Executive to establish functions only within the relevant enterprise or regulated business for section 350C workplace delegates. For example, work areas within the enterprise at which the delegate works, types of members within their enterprise and subject-matters pertinent to their enterprise.
In my view subrule 2(b) of Schedule 7 does not enable section 350C workplace delegates to represent members who work outside their enterprise or regulated business. It is on that basis, that I conclude that the subrule is consistent with the statutory scheme in the FW Act regarding workplace delegates.
Does proposed subrule 5(d) of Schedule 7 operate to create delegates who do not work at the enterprise or regulated business?
The proposed subrule (5)(d) of Schedule 7 states:
“The Delegates Policy:
…
d. May include a provision that certain officers of the Union are delegates by reason of their holding office;”
The word “officer” is broad and has the potential to include officers who represent areas wider than an enterprise or regulated business.
As noted above, the National Executive can only act within the framework of the FW Act, that is they can only appoint a person who works within the relevant enterprise or regulated business as a workplace delegate. Consequently, in my view, any officers that are delegates by reason of their holding office must be officers who work within an enterprise or regulated business and who, in their role as a workplace delegate, only represent members within that enterprise or regulated business.
The NTEU is comprised of Divisions, which are state based, and branches covering particular institutions or sectors, for example a university or the TAFE sector (rule 3.1). Institutional-based branches are comprised of members employed, usually employed or otherwise engaged by the institution (rule 30). Branches are governed by officers elected by and from members of the Branch (rule 2.1 of Schedule 4) and who exercise the powers of the NTEU as contained in the rules with respect to the relevant institution or sector (rules 27.8 and 26.1)
This structure provides for officers who work in an enterprise or regulated business and who represent members at the enterprise or regulated business at which they work (for example officers of institution-based branches), as well as officers who represent members across a range of institutions and sections (for example Divisional officers).
In such a structure it is therefore possible to identify officers who, by reason of their holding office, work within an enterprise or regulated business and represent members at that enterprise or regulated business. Consequently, it is possible for the NTEU’s Delegates Policy to include provisions that certain officers of the Union are delegates by reason of their holding office.
In my view, subrule 5(d) of Schedule 7 does not enable section 350C workplace delegates to represent members who work outside their enterprise or regulated business and I am satisfied that the subrule is consistent with the statutory scheme in the FW Act regarding workplace delegates.
Does proposed subrule 3(b) of Schedule 7 entitle workplace delegates to rights outside the scope of the FW Act?
As noted above, the rights of section 350C workplace delegates are prescribed in subsections 350C(2) and (3) of the FW Act, and include representation of and communication with members and other persons entitled to be members, and access to workplace facilities.[14]
Proposed subrule 3(b) of Schedule 7 states:
“The functions of a delegate include:
…
b. The promotion of the Union and its policies to members and to persons eligible for membership; for or in relation to members of the Union who work in a particular enterprise.”
A question arises as to whether this subrule can be interpreted as providing the National Executive with the power to endow section 350C workplace delegates with rights and duties outside the scope of the FW Act statutory scheme.
It is important to note that the rights of section 350C workplace delegates afforded by the FW Act go to their rights at the workplace, that is their right to represent and communicate with members and potential members at the workplace, as well as the right to access facilities at the workplace. Subrule 3(b) does not go to such rights. Subrule 3(b) concerns duties that regulate the relationship of delegates with the NTEU. As such, they are not duties that fall within the FW Act statutory scheme regarding section 350C workplace delegates, they are separate to and independent of this statutory scheme.
Subject to the restrictions imposed by the Act, the rules of an organisation are a matter for the organisation.[15] In other words, an organisation is entitled to regulate its internal affairs as it sees fit, including the duties and obligations required of their delegates. Consequently, the NTEU is entitled to impose duties on its delegates regarding the promotion of the union.
In my view, subrule 3(b) provides for additional duties for delegates that go to the internal affairs of the NTEU and is not inconsistent with the FW Act.
Lack of clarity regarding subrule 5(c) of Schedule 7
Proposed Schedule 7 includes subrule 5(c) which states:
“The Delegates Policy…
c. Must include procedures by which any two members in a group of members that are or proposed to be represented by a delegate, may require that an appropriate test of opinion among those members, such as a vote, be taken.”
The meaning of this subrule is not entirely clear; in particular, it is unclear whether “an appropriate test of opinion” is open-ended or limited in its scope. The NTEU advise that the sub-rule is intended to allow two members to test the confidence that a group of members has in their delegate.
Irrespective of whether the “test of opinion” is open-ended or limited in scope, the subrule, in my view, is not contrary to the workplace delegate provisions of the FW Act. Further, in my view, the ability for members to test opinions at their workplace provides an opportunity for members to participate in the affairs of the NTEU and consequently is consistent with the standards of the Act.[16] Nonetheless, I recommend that the NTEU consider clarifying the meaning and intent of this subrule when it next makes rule alterations.
For the reasons outlined in paragraph [9] above, the alterations are not contrary to other laws regarding delegates, as the proposed rules regarding delegates must be read as confined to the relevant statutory scheme.
In my opinion, the alterations comply with and are not contrary to the Act, the FW Act, modern awards and enterprise agreements, are not otherwise contrary to law and were made under the rules of the organisation. I certify accordingly under subsection 159(1) of the Act.
DELEGATE OF THE GENERAL MANAGER
[1] Subsection 159(1) of the Act provides that:
(1)An alteration of the rules (other than the eligibility rules) of an organisation does not take effect unless particulars of the alteration have been lodged with the FWC and the General Manager has certified that, in his or her opinion, the alteration:
(a) complies with, and is not contrary to, this Act, the Fair Work Act, modern awards and enterprise agreements; and
(b) is not otherwise contrary to law; and
(c) has been made under the rules of the organisation.
[2] See endnote 1 above.
[3] Subsections 350C(2) and (3) of the FW Act provide as follows:
(2)The workplace delegate is entitled to represent the industrial interests of those members, and any other persons eligible to be such members, including in disputes with the employer or regulated business concerned.
Note: This section does not create any obligation on a person to be represented by a workplace delegate.
(3)The workplace delegate is entitled to:
(a) reasonable communication with those members, and any other persons eligible to be such members, in relation to their industrial interests; and
(b) for the purpose of representing those interests:
(i)in relation to employees—reasonable access to the workplace and workplace facilities where the enterprise concerned is being carried on; and
(ii)in relation to regulated workers—reasonable access to the workplace facilities provided by the regulated business concerned; and
(iii)if the workplace delegate is an employee—reasonable access to paid time, during normal working hours, for the purposes of related training, unless the workplace delegate is employed by a small business employer.
[4] Re Independent Education Union of Australia[2024] FWCD 1019 and Re Australian Municipal, Administrative, Clerical and Services Union[2024] FWCD 1042.
[5] Re Australian Municipal, Administrative, Clerical and Services Union[2024] FWCD 1042 at [16].
[6] ReIndependent Education Union of Australia[2024] FWCD 1019 at [37].
[7] Ibid., at [18].
[8] Ibid.
[9] Re Australian Municipal, Administrative, Clerical and Services Union[2024] FWCD 1042, at [22].
[10] The term “democratic selection” is used in proposed subrule 5(b) of Schedule 7. It is unclear what type of selection process would be democratic, but that is a matter for the NTEU to determine.
[11] Re Independent Education Union of Australia[2024] FWCD 1019 at [23] – [37].
[12] Re Independent Education Union of Australia[2024] FWCD 1019; Re Minister for Workplace Relations and Small Business [1998] AIRC 1770, Print Q6814.
[13] Op. Cit., at [18]
[14] See endnote 3 above
[15] MOA v Lancaster (1981) 54 FLR 129 at 164.
[16] Subsection 5(3) of the Act provides:
(Printed by authority of the Commonwealth Government Printer
<PR779628>
The standards set out in this Act:
(a) ensure that employer and employee organisations registered under this Act are representative of and accountable to their members, and are able to operate effectively; and
(b) encourage members to participate in the affairs of organisations to which they belong; and
(c) encourage the efficient management of organisations and high standards of accountability of organisations to their members; and
(d) provide for the democratic functioning and control of organisations; and
(e) facilitate the registration of a diverse range of employer and employee organisations.
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