Police Federation of Australia

[2019] FWCD 3350

[2019] FWCD 3350

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

Police Federation of Australia

(R2019/37)

MURRAY FURLONG MELBOURNE, 24 MAY 2019

Alteration of other rules of organisation.

1. On 5 April 2019 the Australian Federal Police Association Branch of the Police Federation of Australia lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to its Branch Rules.

1. Further information was lodged in support of the application on 13 May 2019.

1. The particulars set out alterations to Branch Rules:

   81 – Meetings of Executive
   94 - Election of Association Executive Officers
   95 - Zone Election Rule
   98 - Association Funds and Property.

1. The alteration to Rule 81 broadens the circumstances in which Branch Executive business may be conducted by written circular instead of at a meeting.

1. There are two alterations to Rule 95. The first clarifies the fact that the Branch Secretary Treasurer is elected by and from the members of the Branch National Council. The second makes clear the fact that elections for office within the Branch will be conducted by the Australian Electoral Commission.

1. The alterations to Rule 95 recast the manner of election of officers in the Branch who are elected by a direct voting system. The stated rational for these alterations was a request by the Australian Electoral Commission for a rewording of various provisions to allow for better administration of the electoral process.

1. Finally, the Rule 98 requires the Branch’s General Manager to submit a proposed budget, for the Branch Executive’s consideration and determination, for each financial year. The financial year commences on 1 July. Under the present rule, the Branch Executive is given the proposed budget at its first meeting in a calendar year, approximately mid-way through the financial year. If altered, the rule would require the budget to be submitted before the financial year commenced. The alteration is said to reflect current practice and to allow the General Manager and Executive of the Branch to monitor expenditure based on more up to date information.

Notice of alterations

1. Branch Rule 101 givers the Branch National Council the power to amend the Branch Rules.

1. Under sub rule 101(1) a proposal to change the rules must be given to each member of the Branch National Council  at least one month before the decision to alter the rules is made.

1. According to the declaration lodged with the particulars of the alterations, the proposed alterations were given to members of the Branch National Council on 5 March 2019.

1. The meeting of the Branch National Council passed unanimous resolutions to alter the rules alterations on 21 March 2019.

1. In response to a query about why the proposal was given to the Branch National Councillors less than a month before the motions to change the rules were dealt with, the Branch Secretary submitted:

At the time of the issue of the notices the General Manager was unaware of the discrepancy between the relevant rules in relation to notification periods for Agenda items for National Council and those set out in Rule 101(1) relating to the alteration of rules.

At no stage prior to, or during, the said National Council of 20 and 21 March 2019 was any concern raised by delegates in relation to the manner in which the relevant notices were issued nor any concerns raised in relation to non-compliance with the notification periods required in the rules.

I was the Chair at the relevant session of the National Council on Thursday 21 March 2019. The requirement and rationale for each proposed rule alteration was clearly explained by the General Manager to delegates. All proposed rule alterations were endorsed unanimously.

…

On this basis I believe that the proposed rule alterations have the support of the appropriate representative body which was aware of the scope and requirement for the proposed rule alterations.

1. As discussed in Master Builders’ Construction and Housing Association of the Australian Capital Territory,[1] it is necessary to consider whether the non-compliance referred to above is intended to result in invalidity. Does the failure to give Branch Council delegates the proposal to alter the rules a month before they met mean that the alterations have not been made under the rules of the organisation[2] – that is, does non-compliance with rule 101(1) invalidate the alteration of the rules?

1. To assess this question it is necessary to consider the decision of the High Court in Project Blue Sky[3] and its application by a Full Bench of this Commission in Re: Australian Principals Federation.[4] In the context of the rules of registered organisations these authorities indicate that the issue is not whether an instance of non-compliance has occurred (and as an inevitable consequence the decision to alter the rules is invalidated). Instead, the issue is whether an act which does not comply strictly with the rules has no effect. To determine this, regard must be had to the language, scope and object of the relevant provisions.

1. Applying this reasoning to the facts before me the relevant object of sub-rule 101(1) is that all members of the Branch National Council should have sufficient time to consider the substance of the alterations, so they can make an informed decision about whether to amend the rules. As noted above, no concerns were raised by delegates in relation to non-compliance with the notification periods required in the rules. There is nothing else before me to suggest Branch National Councillors were concerned by the amount of notice provided, or otherwise prejudiced because they received to proposal to alters the rules later than they should have. Further, the alterations improve internal governance and the manner of election of Branch officers.

1. On the basis of the material before me, members were sufficiently cognisant of the substance of the alterations to make a considered decision at the Meeting. In the circumstances, the fact that the alterations were received by Branch Council members later than they should have been does not invalidate the decision to alter the rules. However, the Branch should ensure that it fully complies with its rules in the future.

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

1. On 13 May 2019, Angela Smith, Branch President gave consent, under subsection 159(2) of the Fair Work (Registered Organisations) Act 2009, 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:

   ·   The proposal to alter the rule referred referred to sub-rule 81(5) when sub-rule 81(6) was the rule the Branch intended to alter.

1. In my opinion, the alterations comply with and are not contrary to the Fair Work (Registered Organisations) Act 2009, 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 Fair Work (Registered Organisations) Act 2009.

DELEGATE OF THE GENERAL MANAGER

[1] [2013] FWCD 3600

[2] Section 159(1)(c) of the Fair Work (Registered Organisations) Act 2009

[3] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28

[4] Appeal by the Australian Education Union against the decision of Vice-President Ross of 27 January 2006; Lawler VP, Kaufman SDP, Smith C; 26 September 2006; PR973525

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