Screen Producers Association of Australia

[2020] FWCD 1889

[2020] FWCD 1889

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

Screen Producers Association of Australia

(R2019/121, R2020/27)

MURRAY FURLONG MELBOURNE, 15 MAY 2020

Alteration of other rules of organisation.

1. On 30 September 2019 the Screen Producers Association of Australia (the Association) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules. R2019/121 refers.

1. The particulars set out alterations to Rules 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 12, 13 (second appearing), 15, 16, 17, 18, 19, 20, 20 (second appearing), 22, 23, 23 (second appearing), 25, 25 (second appearing), 26, 27, 28, 29, 30, 31, 32, 33, 34, and 35.

1. In addition, the particulars delete Rules 7, 9A and 15A insert new Rules 16, 17 and 41 and renumber the Association’s rules which, as can be seen above, had fallen out of sequence over time.

1. After examining the alterations, staff of the Commission’s Registered Organisations Section engaged with the Association’s solicitors. Concerns were raised with two of the alterations. First, the alteration to Rule 3 appeared to alter the Association’s eligibility rules. As a consequence, it would not be able to be determined under section 159 of the Fair Work (Registered Organisations) Act 2009 (the Act); rather a separate application under section 158 of the Act would be necessary. Secondly, one of the alterations to Rule 7 appeared contrary to section 166 of the Act. An alteration that is contrary to the Act cannot be certified.

1. As a consequence, the organisation withdrew the alteration to Rule 3 and transacted further alterations to Rule 7. Particulars of these alterations and an accompanying declaration were lodged with the Commission on 4 March 2020. R2020/27 refers.

The remaining alterations:

“• Recast the Association’s objects in a more contemporary light;

·  Rationalise the organisation of the membership within the Association. Members will be allocated either to a Division associated with the production of content, or one comprised of those directly providing services and facilities for screen production. This model replaces one where there are five Divisions, whose boundaries can overlap. The alterations further simplify the organisation of the membership by abolishing groups known as Chapters. Chapters are groups of Members who have a geographic or other community of interest and apply to the Association’s Committee of Management (known as the Council) for recognition. Whether to recognise a Chapter is at the Council’s discretion, recognition may be conditional and it may be withdrawn at any time. Neither Divisions nor Chapters are Branches under the present rules, nor shall they be under the proposed rules;

·  Maintain the election of the Council by and from Members attached to the proposed Divisions, within generally proportionate representation, but with terms of office prospectively increased from one to two years. The two year terms will be introduced in two tranches, in a staggered fashion and the proposed rules contains transitional provisions to govern the move from the present scenario;

·  Alter the manner of election of the Association’s President and Vice President, from direct voting system by and from the Association’s Members to an election under a collegiate electoral system by and from the members of the Council;

·  Clarify voting rights at Council meetings;

·  Make it clear that the Association can serve notices on its Members by email;

·  Clarify when Special Meetings of the Association can be called;

·  Make it clear that the Council is subject to the control of the Association’s membership, consistent with s141(1)(b)(iv) of the Act;

·  clarify the quorum provisions for meetings as well as making it clear that people may attend physically, via technology, through a representative and by proxy and also that proxies count towards quorum;

“• facilitate the keeping of the Association’s Register of Members in a form that is consistent with the Act;

·  Clarify the purposes for which the Association’s funds may be spent;

·  Modernise the way that the Association’s financial reports are provided to members;

·  Re-style the Association’s Executive Director as its Chief Executive Officer;

·  Clarify the powers of the Association’s President, Vice President and Chief Executive Officer;

·  Clarify the process by which someone can apply for and become a member of the Association and the manner in which they resign their membership;

·  Clarify the circumstances in which an unfinancial member may be removed from the Register of Members, making the process more transparent:

·  Clarify the circumstances in which a member may be disciplined, to ensure the process is not contrary to law;

·  Provide for the keeping of minutes in minute books in accordance with section 141(1)(b)(iia) of the Act;

·  Provide for absent voting in elections by direct election system, consistent with section 143(1)(e)(ii) of the Act;

·  Allow replacement ballot papers to be sent to a voter in an election, where the initial ballot paper has been lost, destroyed, spoilt or was not received;

·  Clarify the role that a scrutineer may play in an election;

·  Record the fact that Association’s registered address has changed;

· Deletes a provision directed to the requirements of subsection 195(2) of the former Industrial Relations Act 1988 (Cth)

·  remove the Council’s power to make by-laws;

·  Recast the Associate Membership provisions of the rules; and

·  Make technical amendments to the definitions rule which are largely a consequence of substantive alterations to other rules, make the language used in the rules gender neutral, correct grammatical errors in the current rules and consequentially renumber cross referenced rules within the Association’s rulebook.

1. On the information contained in the notice lodged on 30 September 2019 and 4 March 2020, I am satisfied that all of the alterations have been made under the rules of the organisation.

1. On 4 March 2020, the Association’s President, Michael Tear, gave consent, under subsection 159(2) of the Act, 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:

   ·  In proposed Rule 6(i), the second instance of the word "and" which appears between the expressions "shall be granted Membership" and "shall be transferred to a Division" will be deleted;

   ·   In proposed Rules 16(a)-(f) the relevant years have been inserted in lieu of the Expression “[year]"

1. 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

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