Police Federation of Australia-Northern Territory Police Branch

[2016] FWCD 589

[2016] FWCD 589

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Police Federation of Australia
(R2015/261)
MR ENRIGHT	MELBOURNE, 28 JANUARY 2016
Alteration of other rules of organisation.

[1]        On 27 November 2015 and 16 December 2015 the Northern Territory Police Branch

of the Police Federation of Australia (the Branch) lodged with the Fair Work Commission a

notice and declaration setting out particulars of alterations to its Branch Rules.

[2]        The particulars set out alterations to Northern Territory Police Branch Rules 52DA,

52DB, 52DC, 52DD, 52DG, 52DK, 52DN and 52DO.

[3]        On the information contained in the notice, I am satisfied the alterations have been

made under the rules of the organisation.

[4]        Amongst other things, the alterations reconfigure the governance structure of the

Branch. That aspect of the application requires comment.

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[5] At present, the business of the Branch is transacted by the Branch Executive. The

Branch Executive consists of the Branch President, the Branch Senior Vice President, the

Branch Vice President and the Branch Treasurer — collectively referred to as Branch Officers

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Bearers — and ten Executive Members.

[6]        In addition to the Branch Executive, there is an Annual Conference of the Branch. The

Annual Conference of the Branch consists of members of the Branch Executive and Delegates

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from Zone Branches.

[7]        The Annual Conference has supreme authority over all matters affecting the general

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management and policies of the Branch and it is the collective body which is empowered to

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alter the rules of the Branch.

[8] Section 9 of the Fair Work (Registered Organisations) Act 2009 (the Act) provides:

[9]        Meaning of office

(1) In this Act, office, in relation to an organisation or a branch of an organisation

means:

[2015] FWCD 8546

(a) an office of president, vice president, secretary or assistant secretary of the

organisation or branch; or

(b) the office of a voting member of a collective body of the organisation or

branch, being a collective body that has power in relation to any of the

following functions:

(i) the management of the affairs of the organisation or branch;

(ii) the determination of policy for the organisation or branch;

(iii) the making, alteration or rescission of rules of the organisation or

branch;…

[10]      Hence, both members of the Branch Executive and the Delegates to the Annual

Conference of the Branch hold an office under the Act.

[11]      The relevant alterations give sole responsibility for the financial management of the

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Branch to the Branch Executive, make the Branch Executive the collective body with

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responsibility for altering the Northern Territory Police Branch Rules and convert the Annual

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Conference of the Branch to an advisory body. The latter alteration will change the decision

making structure of the Branch and abolish the office Zone Branch Delegate to Annual

Conference. The term of office of the current Zone Branch Delegates has expired; the

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incumbents are holding over in office.

[12]      As a result, a number of offices in the Northern Territory Police Branch will be

abolished by the alterations.

[13]      As I recently noted in Re: Independent Education Union of Australia alterations which

abolish offices “should be certified unless they are found to be not bona fide or that they have

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an oppressive, unreasonable or unjust effect on members”.

[14]      It appears that composition of the Annual Conference of the Branch has not changed

since the Branch was created in 1997.

[15]      It also appears that prior to 2015, neither the Northern Territory Police Branch nor the

Fair Work Commission (or its predecessor) considered the Zone Branch Delegates to be

officers. There is no record of an election being held for the positions. Nor have they appeared

in the list of Branch offices which is lodged annually under section 233(1) of the Act.

[16]      The applicant submits:

With regards to the status of Zone Branch delegates, it was never the intention of the

Police Federation of Australia or the Northern Territory Branch of the Police

Federation of Australia that delegates to the Annual Conference of the NTPFA Branch

should be recognised as "officers" of the Branch

…

[2015] FWCD 8546

Prior to the amendments made to the Branch Rules, the wording of those Rules was

reflective of the wording of the Constitution of the Associated Body pursuant to the

Associations Act (NT). Under that Act, delegates to the Annual Conference from the

various Regions identified under the Associated Body are not considered to be

"officers" of that other organisation.

Historically, there has been no requirement by the Fair Work Commission that Zone

Branch Delegates be recognised as "officers" pursuant to section 9(1)(b) of the Act,

with annual elections of Zone Branch delegates being carried out in accordance with

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the Associated Body's constitution.

and

[I]t was never the intention of the Police Federation of Australia or the Northern

Territory Branch of the Police Federation of Australia that delegates to the Annual

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Conference of the NTPFA Branch should be recognised as "officers" of the Branch.

[17]      The Branch further submitted:

The history and workings of the NTPFA Branch and its relationship with the

Associated Body [the Northern Territory Police Association] are as follows:

…

The Associated Body expends economic resources and incurs financial obligations,

including the collection of membership fees, the payment of accounts for expenses

incurred in carrying out regular business (such as the production of a journal), operates

a bank account, has leased and/or owned property and office machinery and employs

and pays wages of employees.

The Membership of the Branch and the Associated Body are identical and

indistinguishable. No member of the Branch is ineligible for membership of the

Associated Body. No prospective member has applied to be a member of the Branch

and not also a member of the Associated Body.

The only financial concern of the Branch relates to the payment of capitation fees by

the Branch to the Federal Fund pursuant to Rule 7 of the Rules but this is paid by the

Associated Body in accordance with Rule 7A of the Rules.

…

Identification of Zone Branch Delegates as "officers" pursuant to s.9(1) of the Act

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would in our submission place an unintended… regulatory burden on the Branch.

[18]      The Fair Work Commission’s Regulatory Compliance Branch (RCB) first raised the

question of whether Zone Delegates to the Annual Conference held an office in 2015, while

examining information lodged in relation to an election.
[2015] FWCD 8546

[19]      The RCB and the Branch corresponded about the issue. The present alterations are the

culmination of those discussions, intended to bring the Branch Rules into conformity with the

circumstances which had prevailed — as a matter of practice — prior to 2015.

[20]      In addition, as noted above the Annual Conference of the Branch is the collective body

which is empowered to transact alterations to the Rules of the Branch. Each officer who

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attended the meeting which transacted the alterations voted in favour of the relevant motion.

Hence, the persons currently holding over in the offices which would be affected by the

alterations voted in favour of the alterations.

[21]      . Whilst it is a matter of concern that the Branch may not have acted in full conformity

with its rules, I acknowledge that these alterations were transacted promptly once the

Commission raised the issue. The persons affected by the alterations are both aware of and

endorse the proposal being pursued. Further, the alterations do no more than bring the

Branch’s rules into conformity with the longstanding practice of the Branch. In my view, the

restructure of the Branch’s governance and consequent abolition of offices is bona fide .

[22]      For the same reasons, the alterations do not have an oppressive, unreasonable or unjust

effect on members.

[23]      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

Printed by authority of the Commonwealth Government Printer

<Price code C, PR576535>

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Northern Territory Police Branch Rule 52DG(1)

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Northern Territory Police Branch Rule 52DK(1)

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Proposed Northern Territory Police Branch Rule 52DB(1)(j)

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Proposed Northern Territory Police Branch Rule 52DK(1)

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Northern Territory Police Branch Rules 52DG(1) and 52DG(8)(d)

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Northern Territory Police Branch Rule 52DN(5)

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[2015]FWCD 8168; 7 December 2015 at paragraph [5]

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Submission from R. Perry, Industrial and Legal Officer, Northern Territory Police Branch, 14 September 2015 in related

matter R2015/201 at page 3

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Submission from R. Perry, Industrial and Legal Officer, Northern Territory Police Branch, 14 September 2015 in related

matter R2015/201 at page 2

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Opcit at pages 3 – 4

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Declaration of Paul McCue, Branch President, Northern Territory Police Branch, 25 November 2015 at paragraph 3(f) and

3(g)

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Northern Territory Police Branch Rule 52DB(1)(a)

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Northern Territory Police Branch Rule 52DA(1)

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Northern Territory Police Branch Rule 52DG(9)