NSW Farmers’ (Industrial) Association
[2022] FWCD 8
•22 DECEMBER 2022
| [2022] FWCD 8 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
NSW Farmers’ (Industrial) Association
(R2022/129)
| AILSA CARRUTHERS | MELBOURNE, 22 DECEMBER 2022 |
Alteration of other rules of organisation.
On 9 November 2022 the NSW Farmers’ (Industrial) Association (the Association) 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 application was lodged on 2 December 2022.
On the information contained in the notice, I am satisfied the alterations have been made under the rules of the organisation.
The particulars set out alterations to Rule 30 – Financial Year.[1]
Rule 30 currently states:
“The financial year of the Association shall terminate on the 31st day of December.”[2]
The alterations—as originally proposed—were as follows:
“The financial year of the Association shall
terminate on the 31st day of December:(i) as a one-off transitional measure, commence on 1 January 2023 and terminate on 31 March 2023, and otherwise
(ii) commence on 1 April and terminate on 31 March the following year.”
Section 6 of the Fair Work (Registered Organisations) Act 2009 (the Act) defines a number of expressions for the purposes of the Act, including “financial year” as follows:
“(a) the period of 12 months commencing on 1 July in any year; or
(b) if the rules of the organisation provide for another period of 12 months as the financial year of the organisation - the other period of 12 months.”
After examining the proposed alterations, Commission staff became concerned that the alterations might not comply with the Act. Proposed Rule 30(b) sought to establish a transitional financial year of three (3) months, commencing on 1 January 2023 and concluding on 31 March 2023. Commission staff advised the Association that proposed Rule 30(b) appeared contrary to the definition of “financial year” contained in section 6 of the Act.
As a Full Bench of the Commission recently noted:
“we do not consider that a union rule could validly operate to establish a financial year that lasted for a period that was less or more than 12 months […].
It is clear that, other than by the operation of s. 240, the RO Act does not contemplate that an organisation’s rules could provide for a financial year that was for a period other than 12 months.”[3]
A request was made to the Association to vary the alteration to make it fully compliant with the law. This empowered the Association’s Executive Committee under Rule 44 of the Association’s rules to:
“amend to the extent necessary to comply with a request or direction from the General Manager, any proposals for alteration, addition to, variation or rescission of any of the Rules adopted by a General Meeting.”
On 2 December 2022 the Association advised that the “Executive Committee […] has approved further amendments to the rule changes passed at the SGM in October in line with the suggestion outlined [by the Commission]”.[4]
In its final form, proposed Rule 30 states:
“The financial year of the Association shall commence on 1 April and terminate on 31 March the following year.”[5]
The additional information resolved the Commission’s concerns that the proposed alterations are compliant with relevant legislation.
In my opinion, the alterations comply with and are not contrary to the Act, the Fair Work Act 2009, modern awards and enterprise agreements, are not otherwise contrary to law, and have been made under the rules of the Association. I certify accordingly under subsection 159(1) of the Act.
DELEGATE OF THE GENERAL MANAGER
[1] The concept of a financial year is fundamental to the regulation of organisations registered under the Fair Work (Registered Organisations) Act 2009. Unless granted an exemption, each “reporting unit” (generally the organisation, or if the organisation is divided into branches, the organisation’s National Office and each of its branches) must:
cause a general purpose financial report, an operating report to be prepared, as soon as practicable after the end of each financial year (see ss.253 & 254);
have the general purpose financial report audited by a registered approved auditor (ss. 2456 and 257)
provide the general purpose financial report, operating report and auditor’s report (or instead, in some circumstances, a conduit report) free of charge to its members, within set timeframes) (s.265); and
present the general purpose financial report, operating report and auditor’s report to a general meeting of members (or in some circumstances, to a meeting of the reporting unit’s committee of management), within set timeframes (s.266).
[2] By implication, this means the current financial year of the Association begins on the 1st of January each year and ends on the 31st of December that year – see the definition of “financial year” in s.6 of the Fair Work (Registered Organisations) Act 2009.
[3] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Registered Organisations Commission; [2018] FWCFB 16; Hatcher VP, Binet DP, Cambridge C; 3 January 2018 at paragraphs [24] – [25].
[4] Email from Gracia Kusuma, the Association’s Workplace Relations Director, of 2 December 2022.
[5] See the 2 December 2022 Declaration of Xavier Martin, President of the Association, at paragraph 3(b).
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