Police Federation of Australia-Western Australia Police Branch

[2015] FWCD 4625

[2015] FWCD 4625

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

Police Federation of Australia - Western Australia Police Branch

(R2015/135)

MR ENRIGHT	MELBOURNE, 10 JULY 2015
Alteration of other rules of organisation.

[1]        On 18 June 2015 the Police Federation of Australia – Western Australia Police Branch

(the Branch) lodged with the Fair Work Commission (the FWC) a notice and declaration

setting out particulars of alterations to the rules of the Branch. A supplementary declaration

was lodged on 3 July 2015.

[2]        The particulars set out alterations to rules 52AA, 52AC and 52AM of the rules of the

Branch.
[3]	The stated intention of the alterations is to enhance the operation, democratic

processes and representation capacity of the Branch Committee of Management (the Branch

Executive). Those objectives are said to be delivered by ensuring members of the Branch

Executive maintain regular involvement with the counterpart State union (where they are also

members of that union), by removing replicated Region titles, by requiring nominees for

Branch Executive to be based in the Region that they nominate for, by ensuring Branch

Executive Members remain based in the Region to which they were elected and by refining

the definitions of — disciplinary and processes associated with — misbehaviour and neglect

of duty.

[4]        A question arises as to whether the alterations were made under the rules of the

organisation. Rule 52AZ(2) of the Branch’s rules states that written notice of a proposal to

make amendments to the rules is required to be provided to Branch Executive Members at

least one month prior to the relevant meeting of the Branch Executive. The Branch President’s

declaration states that the proposed amendments were distributed to Branch Executive

Members on 11 May 2015, whilst the meeting where the proposals were considered occurred

on 10 June 2015. Therefore, one of the rules associated with the Branch’s rule altering

procedure has not been strictly complied with.
[2015] FWCD 4625

[5]        As discussed in Master Builders’ Construction and Housing Association of the

1

Australian Capital Territory , the relevant question to be asked is whether it is intended that

2

non-compliance would result in invalidity. Drawing from Project Blue Sky and the

application of its principles to the rules of an Association in Re: Australian Principals

3

Federation , 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). 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.

[6]        Applying this reasoning to the facts before me, the object of rule 52AZ(2) of the

Branch’s rules is that all Branch Executive Members receive sufficient notice of the proposed

amendments, prior to the meeting which considers them. Before transacting the present

alterations, the Branch and the FWC’s Regulatory Compliance Branch were involved in a

lengthy process during which draft rules were lodged, examined, commented upon and

redrafted. The final alterations reflect a form of words considered acceptable by both the

Branch and the FWC. As the Branch’s committee of management, I am prepared to assume

that the Branch Executive would generally have been familiar with the rule changes proposed

throughout the draft rules process. As a result, failure to give the full period of notice required

under Rule 52AZ(2) did not mean that Executive received insufficient notice of the proposed

amendments before they met. In the circumstances, shortened notice of the proposal to make

the alteration did not invalidate the decision of the Branch Executive.

[7]        I am satisfied, on the information contained in the notice, that the alterations have been

made under the rules of the Branch. However, I remind the Branch that it should ensure that,

in future, proposed amendments are distributed to Branch Executive Members at least one

month prior to the meeting at which they are to be considered.

[8]        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

[2015] FWCD 4625

Printed by authority of the Commonwealth Government Printer

<Price code A, PR569199>

1

[2013] FWCD 3600

2

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

3

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