Police Federation of Australia

[2023] FWCD 21

[2023] FWCD 21

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

Police Federation of Australia

(R2023/69)

CHRIS ENRIGHT MELBOURNE, 2 NOVEMBER 2023

Alteration of other rules of organisation.

1. On 26 July 2023, the Western Australia Police Branch of the Police Federation of Australia (the Branch) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules. Further material in support of the alterations were lodged on 13 October 2023.

1. The Branch seeks certification of the alterations under section 159 of the Fair Work (Registered Organisations) Act 2009 (the Act).

1. On the information contained in the notice, declaration and the further material lodged on 13 October 2023, I am satisfied the alterations have been made under the rules of the organisation.

1. The particulars set out alterations to Part CA of the Police Federation of Australia’s Rules. Part CA sets out the rules of the Branch. The following Part CA rules have been altered:

52AA – Branch Office Bearers
           52AC – Duties and Responsibilities of the Branch Executive
           52AD – Powers of the Branch Executive
           52AG – Duties of the President
           52AH – Duties of the Senior Vice President and the Vice President
           52AI – Duties of the Treasurer

52AM – Disciplinary Matters

52AO – Executive Elections
           52AT – Referendums

1. During a preliminary examination of the alterations, Commission staff identified potential issues associated with proposed alterations to the rules governing nominations for the Branch Executive.[1]

1. Management of the Branch is vested in the Branch Executive.[2] The Branch Executive is therefore pivotal to the effective operation of the Branch[3] and the democratic functioning and control of the Branch.[4]

2. After engaging with Commission staff, the Branch withdrew the alterations to sub-rules 52AA(7)(c) and 52AO(4)(a).

1. I have considered the principles set out by the majority in Re Food Preservers’ Union of Australia (1988) 79 ALR 138. I am satisfied that the remaining alterations operate independently of the alterations to Rules 52AA(7)(c) and 52AO(4)(a) and severance will not affect the meaning and effect of the remaining alterations.

1. The proposed alterations restructure the management of the Branch, by reallocating the Chief Executive Officer’s role. The Branch President currently performs the role of Chief Executive Officer.[5] Under the proposed alterations the Chief Executive Officer role will be performed by the person appointed to a newly created, non-office,[6] position styled Chief Executive Officer. That person will be appointed by the Branch Executive. As the President will no longer be the Chief Executive Officer of the Branch, consequent changes have been made to the duties allocated to the office of President.

1. The Branch lodged submissions explaining the changes proposed by the alterations. “The plan is for a Chief Executive Officer to be employed by the Union and be accountable to the Executive for the day-to-day operation and activities, leaving the President to focus on the strategic direction of the Union.” In my view the proposed alterations are consistent with this explanation.

1. I am satisfied that the changes to the President’s duties proposed by the alterations do not result in the current office of President being abolished under the rules of the Branch and a new, different office of President being created in its stead.

1. The alterations also revise the duties of the Treasurer. If there is an irregularity in the books of the Branch, the Treasurer is required to report to the Branch Executive. In addition new Rule 52AI(9) makes the Treasurer responsible for senior executive contracts. Finally, new Rule 52AH(5) has been inserted to allow the Vice President to assume all the rights, powers duties and responsibilities of the Treasurer if the latter is absent or incapacitated.

1. Another proposed alteration deals with vacation of office. Rule 52AA(8)(c) has been deleted. As a result, an Executive Member will no longer be deemed to have vacated their office if they are transferred from their policing region after being elected. As Branch Executive elections are conducted via a ballot of all the Branch’s financial members,[7] the proposed alteration does not impair the representation of members.

1. The proposed alterations modify internal disciplinary processes. Officers will be able to be given written or verbal corrective advice. In addition, the information required to accompany a complaint has been updated and all actions and decisions of the Branch Executive associated with disciplinary matters must be recorded and retained by the Branch.

1. Changes have been proposed to the referendum rule. The rule has been reworded and the alterations provide that should a 65% majority not be reached, the question put to vote will lapse.

1. The proposed alterations also consequentially renumber various rules.

1. On 19 October 2023, Paul Gale, Branch President, gave consent under subsection 159(2) of the Act for me to make amendments to the alterations for the purpose of correcting typographical, clerical or formal errors. Accordingly, the following correction has been made:

   ·   In proposed sub-rule 52AH(4), change “eithin” to “within”.

1. With the exception of the proposed alterations to Rules 52AA(7)(c) and 52AO(4)(a), in my opinion, the alterations comply with and are not contrary to the Act, the Fair Work Act2009, 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. It is unnecessary to express an opinion about the proposed alterations to Rules 52AA(7)(c) and 52AO(4)(a) given those alterations were withdrawn.

DELEGATE OF THE GENERAL MANAGER

[1] The proposed alterations to Branch Rules 52AA(7)(c) and 52AO(4)(a) refer.

[2] See Rule 52AA(2)(a). See also Rules 52AC and 52AD.

[3] See s.5(1), (2) & (3)(a) of the Fair Work (Registered Organisations) Act 2009.

[4] See s.5(1), (2) & (3)(d) of the Fair Work (Registered Organisations) Act 2009.

[5] Rule 52AA(a).

[6] See ss.6 & 9 of the Fair Work (Registered Organisations) Act 2009.

[7] Rule 52AO(1)

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