Restaurant & Catering Industrial

[2015] FWCD 4799

[2015] FWCD 4799

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Restaurant & Catering Industrial
(R2014/274)
MR ENRIGHT	MELBOURNE, 17 JULY 2015
Alteration of other rules of organisation.

[1]        On 7 November 2014 the Restaurant & Catering Industrial (the organisation) lodged

with the Fair Work Commission (the Commission) a notice and declaration setting out

particulars of alterations to the rules of the organisation.

[2]        The particulars set out alterations to rules 12, 13, 14A, 15, 17 and 29 of the rules of the

organisation.

[3]        On 30 December 2014 the Commission wrote to the organisation seeking confirmation

that a notice had been published on its website to notify members that particulars of the

alterations had been lodged with the Commission. The correspondence also sought

notification of the number of members in attendance at the meeting to alter the rules, for the

purpose of the verifying the quorum.

[4]        The correspondence also identified some inconsistencies between the proposed

alterations and other rules in the rulebook. In particular, it advised that the inconsistencies

with the proposed alteration to rule 12 would mean that the proposed alterations may not be

sufficient, on their own, to have the intended effect of extending the terms of offices.

[5]        On 19 January 2015 the organisation lodged with the Commission a supplementary

declaration which confirmed that the notice regarding the alterations had been published on

the organisation’s website, and confirmed the number of members in attendance at the

meeting to alter the rules, as requested. The supplementary declaration also authorised the

Delegate to amend rules 14A and 14B, which had not previously been proposed to be altered,

in order to avoid the identified inconsistencies.

[6]        The Commission contacted the organisation on 19 and 20 January 2015 and advised

that the Delegate did not have the power under the Fair Work (Registered Organisations) Act

2009 (the Act) to make the requested consequential alterations to rules 14A and 14B as such

alterations had not been proposed by the organisation in accordance with its rule altering

procedure. As such, a further rule alteration process would need to be undertaken by the

organisation in order to make some of the proposed alterations effective. The organisation

advised that it wished to hold all of the proposed alterations in this matter until such time as

the further alterations were certified.
[2015] FWCD 4799

[7]        On 20 January 2015 the organisation provided a draft of the further consequential

alterations to rule 14A and 14B and requested advice on any further changes that would be

necessary for the previously proposed alterations to be effective.

[8]        On 11 February 2015 the Commission provided the requested advice in relation to the

necessary further alterations. Included in that advice was a letter from me dated 3 February

2015, stating that since section 145(1) of the Act provides that rules of an organisation must

provide terms of office for officers, I had concerns with certifying a rule that was not clearly

constructed and consistent in that regard. I pointed out that further alterations would also

assist in ensuring that the rules comply with section 143(1)(a) of the Act upon certification of

the proposed alterations. In order to reduce the burden on the organisation in making the

further alterations I suggested that it may consider utilising the rule altering process provided

in rule 29(b) of the organisation’s rules for the further alterations.

[9]        The further alterations were lodged with the Commission on 14 April 2015. Those

alterations were certified by me on 13 July 2015 in matter R2015/76.

[10]      As the further alterations in matter R2015/76 have been certified, I am now satisfied

that the provisions in the proposed alterations in the matter currently before me will be

consistent throughout the rulebook.

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

made under the rules of the organisation.

[12]      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 A, PR569430>