National Tertiary Education Industry Union

[2020] FWCD 842

[2020] FWCD 842

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

National Tertiary Education Industry Union

(R2019/129)

MURRAY FURLONG MELBOURNE, 27 MARCH 2020

Alteration of other rules of organisation.

1. On 21 October 2019 the National Tertiary Education Industry Union (the Union) lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to its rules. A supplementary statement by Matthew McGowan, the Union’s General Secretary, was lodged on 27 February 2020.

1. The particulars set out alterations to:

   Rule 16 – National Council;
   Rule 22 – National Executive;
   Rule 35 – Branch Officers;
   Rule 36 – Branch Committee;
   Rule 68A -Terms of Office;
   Rule 69 – Nominations;
   Rule 70 – [untitled];
   Schedule B;
   Schedule F; and
   Schedule G.

2. The alterations:

   ·   Abolish the optional office of Branch Treasurer and transfer its functions to the Branch Secretary.

   ·   Impose a limit on the number of terms a member can hold salaried office within the organisation.

·   Transfer functions relating to the management of the Union’s financial affairs from National Council to National Executive, subject to any decisions or resolutions of National Council.

·   Stipulate that a Returning Officer will allow additional time for the return of ballot papers in certain circumstances.

·   Require that where a nominee for office has an email address it must be included on the nomination form. Any notice or communication sent to that email address will be taken as duly served.

·   Provide that the General Secretary must make financial statements available to members on request.

·   Update references to legislation.

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

1. Subsection 142(1)(c) of the Fair Work (Registered Organisations) Act 2009 (the Act) states that the rules of an organisation:

must not impose on applicants for membership, or members, of the organisation, conditions, obligations or restrictions that, having regard to Parliament’s intention in enacting this Act…and the objects of this Act and the Fair Work Act, are oppressive, unreasonable or unjust”.

1. Parliament’s intention in enacting the Act is set out in section 5. Relevantly, the Act is designed to:

(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.

Branch Treasurer

1. The current rules provide that each Branch is entitled to elect a Branch Treasurer where it resolves to do so. If there is no Branch Treasurer, the relevant functions are performed by another member of the Branch Committee. Rule 35.1, as altered, provides that any Branch Treasurer currently holding office will be entitled to continue in that office for the remainder of the term. Further, unless the Branch decides otherwise, any Branch Committee which included a Treasurer in the last scheduled election will elect an additional ordinary member in the next election, so as not to reduce the Committee’s size.

1. Provided it complies with the requirements of the legislation and its rules, an organisation has the right to mould its internal structures as it sees fit.[1] Authorities suggest that an elected office may be abolished at any time provided the abolition is effected in accordance with the rules and is bona fide,[2] and does not have an oppressive, unreasonable or unjust effect on members or applicants for membership.[3] There is nothing before me to suggest that the abolition of the office is not bona fide, nor that it will have an oppressive, unreasonable or unjust effect on members or applicants for membership.

Term limits

1. New Rule 68A.2 restricts the eligibility of members to nominate for some offices in the organisation. A member will be ineligible to nominate for election to any salaried office if they have previously been elected to serve terms in that office totalling twelve years full time. No term currently being served or previously served will count towards that total.

1. Having regard to the principles set out in section 5 of the Act, in my view the restriction is not oppressive, unreasonable or unjust in the relevant sense. In particular, it will likely enhance the democratic functioning and control of the organisation by encouraging members to participate in its affairs. I also note that a limit of twelve years is unlikely to impede the efficient management of the organisation.

1. On 16 March 2020, Matthew McGowan gave consent under subsection 159(2) of the Act for me to make various amendments to the alterations for the purpose of correcting typographical, clerical or formal errors. Accordingly the following corrections have been made:

·   In proposed rule 35.1, in the second sentence of the second paragraph, the word “of” has been inserted between “office” and “Branch Treasurer”.

·   In proposed rule 68A.2(c), the word “than” has been inserted between “less” and “two”.

·   In proposed rule 70.9A, in the second sentence of the first paragraph after (c), the word “time” has been inserted between “same” and “as”. 

1. In my opinion, the alterations comply with and are not contrary to the 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 Act.

DELEGATE OF THE GENERAL MANAGER

[1] Imlach v Daley [1985] FCA 13; (1983) 7 FCR 457.

[2] Majority in Saint v Australian Postal and Telecommunications Union and Others (1976) 30 FLR 393.

[3] Roughan v Australasian Meat Industry Employees’ Union (1992) 36 FCR 536.

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