National Union of Workers

[2010] FWA 8843

[2010] FWA 8843

FAIR WORK AUSTRALIA

DECISION

Fair Work (Registered Organisations) Act 2009
s.158(1) RO Act - Application for alteration of eligibility rules

National Union of Workers
(D2010/5012)

SENIOR DEPUTY PRESIDENT KAUFMAN MELBOURNE, 18 NOVEMBER 2010

Application for consent to alter eligibility rules.

[1] This decision concerns an application made under s.158(1) of the Fair Work (Registered Organisation) Act 2009 (“FWRO Act”) by the National Union of Workers (“the Union”) for consent to change its eligibility rules. The application was lodged on 14 September 2010.

[2] The application seeks the consent of Fair Work Australia to the alteration of the Union's eligibility rule. The current eligibility rule, Rule 5(N)(b), reads relevantly as follows:

“5 - Conditions of Eligibility

...

(N) the Union shall also consist of such other persons whether engaged as aforesaid or not who are:-

(a) elected officers of the Union; and

(b) appointed officers who have been admitted as members of the amalgamating unions in accordance with their Rules before amalgamation day and thereafter appointed officers admitted as members of the Union.”

[3] The proposed alteration has the effect of excluding the words “who have been admitted as members of the amalgamating unions in accordance with their Rules before amalgamation day and thereafter appointed officers admitted as members” in Rule 5(N)(b), with no substitution in place of those words. The reason for the alteration is to make it clear that all appointed officers are eligible to be members.

[4] By so altering the eligibility rule, Rule 5(N)(b) would read as follows:

“(b) appointed officers of the Union.”

[5] The application was gazetted on 29 September 2010 1, and no objections were received in relation to the application within the stipulated period of 35 days within which objections in writing must be received.

[6] Fair Work Australia is provided with discretion under the FWRO Act to refuse to consent to the alteration for a number of reasons. 2 However, no issues have arisen that would give me cause to not consent to this application.

[7] The alteration to the eligibility rules of the Union was made in accordance with the registered rules of the Union.

[8] In the declaration by the General Secretary of the Union that accompanied the application, dated 13 September 2010, the Union declared that notification was provided to members of the National Council with a period of not less than 28 days to express their decisions, in accordance with Rule 65 of the Union’s Rules, of the intention to alter the Rules of the Union.

[9] The declaration states that the proposed alteration was “moved, seconded and carried unanimously”. Rule 65(2)(ii) of the Union’s Rules reads:

“if at the end of the time frame specified a majority of members have not opposed the proposal to alter the Rules it shall thereupon be taken to have been approved by National Council.”

[10] I am satisfied that the change or alteration has been made under the Rules of the Union as required by s.158(2) of the Act, which reads:

“FWA may consent to a change or alteration in whole or part, but must not consent unless FWA is satisfied that the change or alteration has been made under the rules of the organisation.”

[11] Section 158(4) of the Act reads:

“FWA must not consent to an alteration of the eligibility rules of an organisation if, in relation to persons who would be eligible for membership because of the alteration, there is, in the opinion of FWA, another organisation:

(a) to which those persons could more conveniently belong; and

(b) that would more effectively represent those members.”

[12] No issue arises in this regard nor in relation to ss.158(5), (6), or (7) of the FWRO Act.

[13] There are no other grounds that would cause me to refuse to consent to the application.

[14] In the circumstances, I consent to the alteration to the Union’s eligibility rules as set out above.

[15] Section 158(9) of the Act reads as follows:

“Where FWA consents, under subsection (1), to a change or alteration, the change or alteration takes effect on:

(a) where a date is specified in the consent—that date; or

(b) in any other case—the day of the consent.”

[16] My consent to the applications in D2010/5012 will take place with effect from Friday, 26 November 2010.

SENIOR DEPUTY PRESIDENT

 1   Gazette No. GN 38, 29 September 2010.

 2   Section 158(6)-(8) of the FWRO Act

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