Police Federation of Australia-Western Australia Police Branch

[2015] FWCD 2091

[2015] FWCD 2091

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Police Federation of Australia
(R2015/61)
MR ENRIGHT	MELBOURNE, 31 MARCH 2015
Alteration of other rules of organisation.

[1]        On 20 March 2015 the Western Australia 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 the rules of the Police Federation of Australia (the

organisation).

[2] The particulars set out alterations to rules 52AA, 52AB, 52AG, 52AH, 52AP, 52AQ,

52AW and 52AY, the addition of new rule 52AZB and the deletion of rule 52AZA of the

rules of the Branch.

[3]        The alterations make a number of changes intended to realign the Branch’s rules with

the rules of its state-registered counterpart, the Western Australian Police Union of Workers.

The alterations seek to change the period constituting the financial year of the Branch from a

commencement date of 1 April to a commencement date of 1 July each year. As a

consequence, the alterations change the month of the Branch’s Annual Conference from May

or June to November, and the declaration date of the election for Branch Executive members

from 15 April to 15 October in each election year. As the Branch Executive’s term of office

commences at the Annual Conference, a transitional rule is inserted to extend the term of

office of the existing Branch Executive by a matter of months, until the dissolution of the

Annual Conference in 2015. The alterations also change the titles “Vice President” and

“Deputy Vice President” to “Senior Vice President” and “Vice President” respectively,

change the rule governing casual vacancies so that it is no longer mandatory for the Branch to

fill vacancies by appointment where the remaining term is less than 12 months or ¾ of the

term of office, and delete a now redundant transitional rule.

[4]        A question arises as to whether the Branch complied with the rule alteration process

when transacting the alterations. Rule 52AZ(1) of the Branch rules provides for the rules to be

altered “by resolution carried by a two-thirds majority of the Branch Executive”. Rule

52AZ(2) states:

Notice of any proposal for the making of a new Branch Rule or for the adding to,

amendment, rescission or other alteration of any Branch Rules shall be given in

writing to each member of the Branch Executive at least one month prior to the

[2015] FWCD 2091

relevant meeting of the Branch Executive or to the commencement of the postal ballot

of the Executive...

Meeting via teleconference

[5]        According to the declaration of Branch President Mr George Tilbury and

accompanying documents, a resolution to alter the rules was made at a meeting of the Branch

Executive held on 19 March 2015. The minutes of the meeting, which form an annexure to

the declaration, reveal that a number of Branch Executive members participated in the

meeting via teleconference. In order to achieve the quorum of eight Executive members

imposed by Branch rule 52AK(3), it is necessary to include those members who participated

via teleconference in the total number present at the meeting.

[6]        The Branch rules do not expressly provide for Branch Executive meetings to be held

via teleconference or other technological means, nor do they stipulate that meetings must be

held in person. It is therefore necessary to consider whether a meeting can be conducted by

teleconference where the rules are silent on the method of conducting the meeting.

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[7] Finding in Higgins v Nicol that a meeting could not be conducted by telephone in the

absence of a specific provision to the contrary, Joske J noted:

A meeting is not only something where people speak but where they also meet each

other in the flesh. However, in the future, perhaps as a result of technical television

improvements, it may be decided that a meeting can be conducted by telephone hook-

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up.

[8]        It has more recently been suggested that since 1971, when this case was this decided,

technological advancement has obviated the requirement for a meeting to occur in person. In

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the context of company meetings, in Re Ferguson Branson J found that:

the words “meet together” when ordinarily used in respect of a meeting of directors

connote a meeting of minds made possible either by physical proximity or by

technology...provided that each participating director is able to be aware of the

contributions to the meeting made by each other director and to contribute himself or

herself to the meeting without significant impediment, it is not of importance that the

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meeting...is achieved with the assistance of the telecommunications industry.

[9]        In considering the attendance by a number of members of the Executive by

teleconference, I have had regard to the declaration by Mr Tilbury that the alterations were

made in accordance with the rules of the Branch. I have also taken into account the

geographical nature of the State of Western Australia which lends itself to the efficient

utilisation of communication technology. In particular, I have taken into account that

consideration of the alterations which are the subject of this application was the single item of

business addressed by a Special Meeting of the Executive held on 19 March 2015 and that it

is apparent from the application documents that the alterations were unanimously supported.

[10]          Taking into account these matters and applying the reasoning in Re Ferguson, in my

view, it is enough that a “meeting of minds” occurred, regardless of whether the Branch

Executive met in person or via teleconference. I am satisfied that a meeting of minds did
[2015] FWCD 2091

occur at the meeting at which the alterations were made. The meeting was therefore valid and

quorate.

Notice of alterations

[11]      The declaration of Mr Tilbury and attached documents indicate that the notice of the

alterations to be considered at the meeting on 19 March 2015 was emailed to Branch

Executive members on 19 February 2015. Rule 52AZ(2), extracted above, requires notice to

be provided “at least one month” before the relevant meeting. For the purposes of counting

notice, the day of forwarding the proposed alterations and the day of the meeting are not

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counted. As such, the rule requires a clear month between the sending of the notice and the

relevant meeting. The notice was provided one day short of a clear month of the meeting.

[12]      It therefore appears that an aspect of the Branch's rule altering procedure has not been

strictly complied with. In accordance with the Fair Work (Registered Organisations) Act

2009 (RO Act), I am required to be satisfied that the alterations have been made under the

rules of the organisation.

[13]      As discussed in Master Builders' Construction and Housing Association of the

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

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

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

[14]      Applying this reasoning to the facts before me, the object of rule 52AZ(2) is that all

Branch Executive members receive proper notice of the alterations under consideration. On

the basis of the material before me, Branch Executive members knew the substance of the

alterations sufficiently in advance of the meeting to enable them to make a considered

decision. In my opinion, the fact that the notice was one day short of a clear month does not

invalidate the decision of the Branch Executive. However, the Branch must ensure in future

that at least one clear month’s notice is provided of alterations prior to the relevant meeting or

postal ballot.

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

made under the rules of the organisation.

[16]      Some of the particulars of the alterations require further consideration. These are set

out below.

Change to the period constituting the financial year

[17]      The alteration to rule 52AW changes the commencement date of the financial year of

the Branch from 1 April to 1 July. A transitional provision inserted at new rule 52AZB(2)

provides:

To facilitate a changed Financial Year commencement date to 1 July each year under

rule 52AW(2) the financial year for the period 1 April 2015 to 30 June 2015 will be a

[2015] FWCD 2091

separate financial year. This transitional provision will cease to have effect beyond 1

July 2015 following the commencement of the new Financial Year.

[18]      Section 6 of the RO Act defines a financial year as:

(a) the period of 12 months commencing on 1 July in any year; or

(b) if the rules of the organisation provide for another period of 12 months as the

financial year of the organisation — the other period of 12 months.

Note: Section 240 provides for a different financial year in special circumstances.

[19]      Section 240 of the RO Act states:

Where the rules of an organisation change the period constituting the financial year of

the organisation, the period between:

(a) the commencement of the first financial year after the change; and

(b) the end of the preceding financial year;

is to be taken for the purposes of this Part, to be a financial year.

[20]      The current financial year provided for in the rules will end on 31 March 2015. In

accordance with the amended rule 52AW, the first financial year after the change will not

commence until 1 July 2015. As provided in s.240, the period between the commencement of

the first financial year after the change, that is 1 July 2015; and the end of the preceding

financial year, that is 31 March 2015; is to be taken as a financial year for the purposes of Part

3 of the RO Act. Therefore, the period from 1 April 2015 to 30 June 2015 will be a three

month financial year. From 2015 onwards, the Branch’s financial year will commence on 1

July.

[21]      I find that rule 52AZB(2) is consistent with s.240 of the RO Act.

Extension of the term of office of existing office holders

[22]      New rule 52AZB(1) provides that the Branch Executive whose term commenced in

2012 will continue to hold office until the dissolution of the Annual Conference in 2015. As a

consequence of the change to the Annual Conference date from May or June to November,

the three year term of office of the current executive is extended by five to six months.

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[23] With respect to the alteration of a “term of office” during the term, in Beeson Joske J

held that:

In this case the amendment to the rules increasing the period of tenure of the office

from three to six years was a matter of substance which could affect the actions of

voters and of potential candidates. A voter might very well be prepared to give his

vote to a candidate for a period of three years but might hesitate to do so for double

that period... A potential candidate might not be attracted by a period of three years,
[2015] FWCD 2091

but the longer period might make him well consider the desirability of putting in a

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nomination...

[24]      In this case, the relatively minor extension of a three year term by up to six months is

distinguishable from the extension contemplated in Beeson because it is unlikely to have

affected the actions of voters and potential candidates. The extension is an inevitable

consequence of changing the financial year and, as such, is a bona fide decision of the Branch.

It does not, in my opinion, impose oppressive, unreasonable and unjust conditions on

members having regard to the objects of the Act and therefore does not offend subsection

142(1)(c) of the RO Act.

Change to the title of offices

[25] Alterations to rules 52AA, 52AB, 52AG, 52AH, 52AP and 52AY change the titles

“Vice President” and “Deputy Vice President” to “Senior Vice President” and “Vice President

respectively. The alterations do not affect the powers and duties of either office. In my view,

the abovementioned alterations merely change the titles of the offices and do not have the

effect of abolishing either office, nor do they result in any changes to the persons holding the

offices.

[26]      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

Printed by authority of the Commonwealth Government Printer

<Price code C, PR562452>

1

(1971) 18 FLR 343.

2

Ibid at 357.

3

(1995) 58 FCR 106.

4

Ibid at 111.

5

White v Godfrey (1959) 1 FLR 357.

[2015] FWCD 2091

6

[2013] FWCD 3600.

7

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

8

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.

9

Beeson v Blayney & Ors (1965) 8 FLR 283.

10

Ibid at 294-295.