NSW Farmers' (Industrial) Association
[2021] FWCD 261
•26 JANUARY 2021
| [2021] FWCD 261 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
NSW Farmers' (Industrial) Association
(R2020/191)
| MURRAY FURLONG | MELBOURNE, 26 JANUARY 2021 |
Alteration of other rules of organisation.
On 6 November 2020 the NSW Farmers' (Industrial) Association (the Association) lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to its rules. Further information in support of the application was provided on 9 December 2020.
On the information contained in the notice and subsequently provided, I am satisfied the alterations have been made under the rules of the organisation.
The particulars set out alterations to Rules 6, 20, 23, 24, 37 and Schedule 1.
The alterations operate as a package to abolish the office of Trustee and delete all associated references.
The rules currently provide that the Association has the power to deal with property in the name of the Trustee.[1] The Association’s Executive Committee currently has the power to deal with property and to direct the Trustee accordingly.[2]
The alterations seek to place control of the Association’s property and assets in the hands of the Executive Committee. The Association submits that the current rules make dealing with property more cumbersome and the alterations will give the Executive Committee direct authority to act in all financial matters rather than via a Trustee. As organisations are empowered to deal with any real or personal property under the Fair Work (Registered Organisations) Act 2009 (the Act)[3] it is not necessary for them to have an office of Trustee.
I need to consider whether the abolition would have an oppressive, unreasonable, or unjust effect on members, particularly when such an office is abolished mid-term.[4] Rule 24 currently provides that the office of Trustee is to be held by a company. Further, the rules do not require the company which holds the office of Trustee to be a member of the Association.[5] The alterations propose to place control and responsibility of the Association’s finances in the hands of elected officers who are either members or their representatives,[6] rather than with a third party who need not be a member of the Association. This ensures the Association can be directly accountable to its members which is entirely consistent with the objects of the Act.[7]
On 22 December 2020, Mr James Jackson, President, gave consent, under subsection 159(2) of the Act for the Delegate 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 Rule 21, the word ‘those’ should be replaced with ‘that’; and
In Rule 21, the words ‘and Trustee’ should be deleted.
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] See Rule 6(vii).
[2] See Rule 23(xii)(h).
[3] See s 27(c) of the Act.
[4] An organisation has the right to structure itself as it sees fit [Williams v Hursey (1959) HCA 51, 103 CLR 30.]. However, if an organisation seeks to abolish an office mid-term the abolition must be effected in accordance with the rules and must not be other than bona fide [Imlach v Daley [1985] FCA 132, 462.]. Further, any abolition of office must not have an oppressive, unreasonable or unjust effect on members or applicants for membership (in the plural) having regard to the objects of the legislation [Roughan v Australasian Meat Industry Employees’ Union (1992) 36 FCR 536].
[5] See Rule 21.
[6] Ibid.
[7] See ss 5(3)(a) and (c) of the Act.
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