Screen Producers Association of Australia

[2014] FWCD 1821

[2014] FWCD 1821

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Screen Producers Association of Australia
(R2013/114)
MR ENRIGHT	MELBOURNE, 11 JULY 2014
Alteration of other rules of organisation.

[1] On 29 May 2013 the Screen Producers Association of Australia (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 provide for alterations to rules 1–12, 16–19, 26–29 and 35–38, alterations to and renumbering of rules 14–15A and 20–24, deletion of rules 13 and 25 and the insertion of new rule 20. These are substantial alterations. They include changing the eligibility rules of the organisation, altering other rules of the organisation, and alterations made in order to comply with provisions of the Fair Work (Registered Organisations)

Amendment Act 2012 (the Amendment Act) regarding the rules of registered organisations.

[3] Included with the particulars of the alterations lodged with the Commission is a document which contains a brief explanation of the reasons for the alterations. This document (referred to in this Decision as the ‘explanatory summary’) was provided to the members of the organisation prior to the meeting of members which made the alterations.

[4] Upon receipt of the notification, staff of the Regulatory Compliance Branch (the RCB) of the Fair Work Commission identified a number of alterations that appeared to contravene provisions of the Fair Work (Registered Organisations) Act 2009 (the Act). Also, changes to eligibility rules were not lodged with the Commission in accordance with requirements of the

Fair Work (Registered Organisations) Regulations 2009 (Cth) (the Regulations).

[5] On 12 July 2013, staff of the RCB outlined several points of concern in a letter to the organisation, as well as in a number of telephone communications and in emails dated 27 June and 3 July 2013. The organisation was advised to withdraw the application and resubmit. In the alternative, the organisation was invited to consider lodging submissions in support of the alterations. The organisation was also advised that the declaration was deficient and a sample declaration was provided.

[6] The organisation advised that it planned to lodge submissions in support of the

application. However, the organisation did not submit any submissions to the RCB at this or
at any later stage.

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[7] On 23 December 2013 staff of the RCB asked the organisation if, given that no

submissions had been received by the Branch, it wished to withdraw the notification or
whether the preference was for the Delegate to issue a decision.

[8] On 20 January 2014 the organisation advised the RCB that the preference was to have the Delegate issue a decision.

[9]        On 18 June 2014 an amended declaration was lodged with Commission.

[10] As per my obligation under section 159(1) of the Act, I am now required to turn my attention to the alterations contained within the particulars; and consider, if appropriate, the issue of whether or not any impugned alterations are severable from the remainder of the alterations.

[11] The particulars of the alterations set out a series of motions passed by a General Meeting of members which amend each rule independently of each other. For example, motion 1 alters rule 1, motion 2 alters rule 2, and so on. I consider, in the following order, first the alterations to the eligibility rules, followed by the alterations to other rules, and finally those made in order to comply with the Amendment Act.

Alterations to eligibility rules

[12] Particulars of the alterations included alterations to rule 3 and rule 6(a) of the rules of the organisation. Current rules 3 and 6(a) are replicated as follows:

3 - INDUSTRY

The Industry in respect of which the organisation is formed is that in or in connection with the direction, production, editing, processing, developing or otherwise dealing with, motion picture films and/or video tapes and/or any other method of recording images and/or sound within the Commonwealth of Australia and its Territories.

6 - MEMBERSHIP

(a) The Association shall consist of an unlimited number of persons engaged in the
Industry.

[13]      The amendments are as follows:

3 - INDUSTRY

The Industry in respect of which the Association is formed is that in or in connection with the creation of screen content including but not limited to film, television, web, mobile, games and interactive media.

6 - MEMBERSHIP

(a) The Association shall consist of an unlimited number of persons engaged in the
Industry. The members are not partners.

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[14]      An eligibility rule is defined under section 6 of the Act as follows:

Eligibility rules, in relation to an organisation or association, mean the rules of the organisation or association that relate to the conditions of eligibility for membership or the description of the industry or enterprise (if any) in connection with which the organisation is, or the association is proposed to be, registered.

[15] Rule 6(a) clearly articulates the conditions relating to eligibility for membership – that is, being included in the class of person engaged in the industry as defined by rule 3. Read together these rules definitively describe the conditions of eligibility for membership as well as describing the industry in connection with which the organisation is registered.

[16] Both rule 3 and sub-rule 6(a) are eligibility rules as defined under section 6 of the Act. The alterations to rule 3 and sub-rule 6(a) (replicated above) are changes to eligibility rules.

[17] Applications to alter eligibility rules must be dealt with by a Presidential Member of the Fair Work Commission under section 158 of the Act. They cannot be dealt with by the General Manager or her Delegate under section 159. To the extent the alterations to Rule 3 and sub rule 6(a) are submitted for my consideration in the present matter, I dismiss them for want of jurisdiction.

Alterations to other rules

[18] The notification also contained a number of alterations to other rules of the organisation. These included amendments to the following rules: 1, 2, 4, 5, 6 (other than 6(a)) 7, 8, 9, 9A, 10, 11, 12, 13 (deleted), 14 (renumbered 13), 15 (renumbered 14), 15A (renumbered 15), 16, 17, 18, 19, 20 (renumbered 21), 21 (renumbered 22), 22 (renumbered 23), 23 (renumbered 24), 24 ( renumbered 25), 25 (deleted), 26, 27, 28, 29, 35, 36, 37, 38 and the insertion of new rule 20. These included both alterations made in order to comply with provisions of the Amendment Act and alterations to other rules. I will deal with the alterations made in order to comply with provisions of the Amendment Act separately below in paragraphs [110] to [116].

[19] In order to certify the alterations to these rules, I must be satisfied that the altered rules comply with and are not contrary to the Fair Work (Registered Organisations) Act 2009 (the Act), the Amendment Act, the Fair Work Act 2009, modern awards and enterprise agreements, and are not otherwise contrary to law.

[20] It is established principle that it is for the members of an organisation, or those entrusted by the members in that regard, to decide the content of the rules. This proposition is adeptly articulated by Deane J in Municipal Officers’ Association of Australia v Lancaster, reproduced as follows:

The constraints and restrictions imposed, by positive and negative requirements of the Act and regulations, upon the freedom of the members of an organisation to select, for themselves, the rules which they consider appropriate for their particular association, are real and significant. It cannot, however, be too strongly suggested that, subject to those constraints and restrictions, the content of the rules of a registered organisation is primary a matter for the members (Watson v Australian Workers’ Union; Cassidy v

Amalgamated Postal Workers’ Union of Australia, Wiseman v Professional Radio and

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Electronic Institute of Australasia; Re Airline Hostesses’ Association). This Court has

no authority generally to supervise the content of the rules or to require that the rules comply with what those constituting the court might see as preferable, desirable or ideal.[1](footnotes removed)

[1](1981) 54 FLR 129 at 164 - 165

[21] However it is incumbent upon me to be satisfied that the altered rules are not in breach of the Act. For the purposes of these alterations, I refer to the objects of the Act contained in subsection 5(3). These set out Parliament’s intention in creating the Act, which, among other things, aim to ensure that organisations are representative of and accountable to their members; to enable effective operation or organisations; to encourage the participation of members in the affairs of organisations to which they belong; to encourage efficient management of organisations; and to provide for democratic functioning and control of organisations.

[22] Also I must be satisfied that the general requirements for rules as set out section 142 of the Act are complied with, in particular that the alterations are not contrary to law, do not impose upon applicants or members conditions, obligations or restrictions that are oppressive, unreasonable or unjust and that they do not discriminate between members on the basis specified attributes. The Act also stipulates that certain matters must be provided for in the rules of organisations (sections 141-146).

[23] I will now consider the rules listed in paragraph [18], other than those that pertain to the provisions of the Amendment Act.

Alterations to rule 6

[24] In addition to setting out the eligibility in sub rule 6(a), rule 6 establishes the classifications of membership. The alterations to rule 6, among other things, enable persons who are not employers to the benefits of full membership as well as establishing a group of ‘Non-Voting members’.

Entitling persons who are not employers to the benefit of full membership

[25] Section 18 of the Act provides for the types of associations that may apply for registration. These include the following: a federally registrable association of employers, a federally registrable association of employees and a federally registrable enterprise association. Subsection 18A(3) provides that an association of employers is not federally registrable if it has a member who is not one of the following: (a) an employer; (b) a person who was an employer when admitted to membership, but who has not resigned or whose membership has not been terminated; (c) a person (other than an employee) who carries on business; or (d) an officer of the association.

[26] The Screen Producers Association of Australia is registered as an organisation of employers. Current sub rule 6(b) provides for different classifications of members, including Feature Film Members, Television Programme Members, Documentary Members, Service and Facilities Members, Animation and New Media Members and additional classifications as either the Council or the Association in a general meeting may determine. Current sub rule 6(e) provides for an additional classification of ‘Associate Members’ and current sub rule 6(h) provides that Associate Members are not employers. Under current sub rule 6(g), Associate Members are entitled to receive notice of, and to attend meetings of the organisation but have

[2014] FWCD 1821

no voting rights, save in respect of a proposal to wind up the Association. In effect Associate
Members are not entitled to the benefits of full membership because they are not employers.

[27] The alterations to sub rules 6(b), 6(c) 6(d) and 6(f) replace the category of Associate Members with a category of ‘Non-Voting members’ whose voting rights are curtailed in a similar manner to that of current Associate Members. Current sub rules 6(h) and 6(i), which preclude employers from Associate Membership, are removed by the alterations. Read together, the alterations to these sub rules entitle persons who are not employers to full membership rights.

[28] Subsection 171A(1)(a) of the Act provides that if a person who is a member of an employer organisation and the person is not, or is no longer an employer, or is not a person who carries on a business or is not an officer of the organisation, their membership immediately ceases.

[29] In my opinion, extending full membership rights to persons who are not employers is not in contravention of the Act. The person may have been an employer when they joined the organisation, they may carry on a business or they may be an officer of the organisation and therefore entitled to membership. If none of these circumstances apply, the effect of subsection 171A(1)(a) is that membership of a person who is not an employer ceases immediately. However, in my opinion, other aspects of the alterations to rule 6 are in contravention of the Act, which I will now explain.

Alterations to sub rules 6(b) and 6(c): Voting and Non-Voting members

[30] The alterations to sub rules 6(b) and 6(c) create two classes of members of the Association. These are titled ‘Voting members’ and ‘Non-Voting members’. The former group are entitled to vote in postal ballots and meetings of the Association. The latter group are not entitled to vote; either at meetings or in ballots, and are not be eligible to be nominated for any office on Council.

[31] Voting members consist of two separate categories: screen producers who have achieved a level of professional advancement, i.e., a bona fide producer credit or equivalent; and companies who provide services and facilities for screen production. ‘Non-Voting’ members also consist of two separate categories: ‘Associates’ defined as those who are engaged in screen production but who have not received the requisite credit or equivalent. The membership of Associates ceases after two years if they have not made sufficient advancement. The second category of Non-Voting members is ‘Industry Affiliate’ or companies who have a demonstrated affiliation with film, television or interactive media production but who are not eligible for membership under another category.

[32] I note here that the organisation was invited to lodge submissions detailing the reasons for the proposed changes but did not avail itself of this opportunity. However the explanatory summary which was provided to members clarifies that the reason for creating Voting and Non-Voting categories of membership is ‘to maintain a professional membership base’. It also explains that the reason for limiting the eligibility for running for Council is ‘to maintain a high standard of leadership’.

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Entitlement to vote

[33] Subsection 166(4) of the Act provides for the rights of individuals who satisfy the eligibility criteria for membership of an organisation of employers to become, and remain members of that organisation. The right to become a member is subject to some caveats, for example, a member must not be ‘a natural person who is of general bad character’. The right to remain a member endures as long as the member complies with the rules of the organisation; and does not cease to be eligible to become a member (and the rules of the organisation do not permit the employer to remain a member).

[34] The question is whether the disqualification of voting of a certain group of members offends against subsection 166(4). In my opinion, this turns on how the rights of membership are to be understood within the context of the Act. In my consideration of this issue, I refer to the judgement of Joske J in MacDonald v The Amalgamated Engineering Union (Australian

Section), where His Honour stated:

The right to be a member must surely involve a right to take one’s share in the management and control of the body of which one is a member and include as an attribute of membership the right to vote and the right to stand for and be elected to the representative offices of the body. These rights are inherent in the very notion of membership of a representative body, and if they are absent the body is not a truly representative body.[2]

[2]MacDonald v The Amalgamated Engineering Union (Australian Section) (1962) 3 FLR 466 at 449

[35] It is clear that the alterations to sub rules 6(b) and 6(c) involve the removal of the right to vote from members. I agree with His Honour’s proposition that these rights are so intrinsic to the notion of membership of a representative body that their removal renders membership status for all practical purposes non-existent. There is nothing in the alterations to indicate that Non-Voting Associates are anything other than members of the organisation. They are engaged in the industry and therefore meet the eligibility criteria of the organisation and are subject to payment of any amount payable in relation to membership.

[36] Also section 345 of the Act provides for the right of financial members to participate in ballots. Subject to any reasonable provisions in the rules of an organisation, every financial member of the organisation has a right to vote at any ballot taken for the purpose of submitting a matter to a vote of the members of the organisation or of a branch, section or other division of the organisation in which the member is included.

[37] As stated in paragraph [32] the explanatory summary provided to members clarifies that the reason for creating Voting and Non-Voting categories of membership is ‘to maintain a professional membership base.’ The view of the organisation appears to be that Associates have not attained a sufficient standard of professionalism to warrant participation in the affairs of the organisation. Although it may be a genuine desire of the organisation to exclude such members from participation, it offends against sections 166 and 345 of the Act.

[38] Further, and in addition to my arguments above, it is my view that the creation of two groups of financial members, one of which is disenfranchised from voting, imposes conditions upon one group of members which are ‘unreasonable, oppressive and unjust’ within the meaning of subsection 142(1)(c) of the Act, as explained below.

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[39] Conditions, obligations or restrictions that are ‘oppressive, unreasonable and unjust’ are not defined in the legislation, or its predecessors, but have been considered in case law. A useful analysis is provided by Deane J in Municipal Officers’ Association of Australia v

Lancaster, reproduced as follows:

To be oppressive, a condition, obligation or restriction must be burdensome, harsh and wrongful... To be unreasonable, it must be immoderate and inappropriate... To be unjust, it must be contrary to right and justice and ordinary standards of fair play.[3]

[3]Municipal Officers’ Association of Australia v Lancaster (1981) 54 FLR 129 at 165

[40]      His Honour goes on to say:

Section 140(1)(c) provides that the question whether a condition, obligation or restriction is oppressive, unreasonable or unjust is to be determined “having regard to” the objects of the Act and the purposes of the registration of organizations under the Act. This does not, however, impose a requirement that every provision in the rules of an organization should either serve or be consistent with those objects or purposes. Nor does it alter the fact that the operative test is whether giving regard to those objects and purposes, the relevant condition, obligation or restriction can properly be described as “oppressive, unreasonable or unjust”. It does, however, mean that in answering that question it is necessary to take into account relevant objects of the Act and relevant purposes of the registration of organizations under the Act...”[4]

[4]Ibid. Section 142(1)(c) of the RO Act, though not identical, replicates the pertinent aspects of s140(1)(c) of the Industrial

[41] Section 5 of the Act considers Parliament’s intention in enacting the Act and sets out standards that employer and employee organisations are required to meet in order to enhance relations within workplaces and reduce adverse affects of industrial disputation. In particular, as outlined in paragraph [21] above, Parliament intended, among other things, to encourage the participation of members in the affairs of organisations to which they belong; and to provide for the democratic functioning and control of organisations.

[42] In relation to these objects, I refer again to His Honour’s statement in Municipal Officer’s Association, that:

These are, of course, ideals. If it were possible fully to attain them, it would be unnecessary to have any committee of management or council in an organization. The members, fully participating, would decide all questions by democratic decision. In practice, one must be satisfied with less than perfect democracy and less than full participation of members.[5]

[43]      However, I also note His Honour’s statement that:

Democratic control and full participation are most likely to be served by provisions which maximise the participation of members of the organization or of the relevant branch or section in the election process.[6]

[44] It is my view that that the alterations to sub rules 6(b) and 6(c) offend against the objects of the Act outlined in section 5. Excluding financial members from voting is not ‘less than perfect democracy’; it is entirely contradictory to concepts of representation, democratic control and participation as conceived by Parliament in drafting the Act. Certain members are placed in a position where it is impossible for them to participate in any democratic decision-

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making process. They are entirely excluded from it. The consequences for these members, in

my opinion, can properly be described as oppressive, unreasonable and unjust.

Restrictions on the right to be elected to office

[5]Municipal Officers’ Association of Australia v Lancaster (1981) 54 FLR 129 at 166

[6]Ibid

[45] As noted in paragraph [30] Non-Voting members are not eligible to be nominated for any office on Council. The explanatory summary provided to members explains that the reason for limiting the eligibility for running for Council is ‘to maintain a high standard of leadership’.

[46] As explained in paragraph [34] the right to be a member includes ‘the right to stand for and be elected to the representative offices of the body’.[7]However a number of authorities suggest that restrictions on the right to be elected to office do not necessarily preclude members from effective participation in the organisation. Smithers J in Allen v Townsend stated:

...a member who is excluded from the right to stand for any office in a union is to that extent excluded from full participation in the affairs of the organization, and that in such a case one of the chief objects of the Act is not achieved. It is not said that certain conditions may not be imposed upon participation...but that the reasonableness of conditions which do so must be assessed... [8]

[7]MacDonald op. cit at 449

[8]Allen v Townsend and Ors (1977) 31 FLR 431at 455

[47] When assessing the reasonableness of a restriction on the right to be elected to office, democratic principles and participation of members need to be balanced against the viability and efficiency of the organisation.[9]A number of authorities have considered restrictions which aim to ensure that managing committees are composed of members with an appropriate level of expertise or experience to manage the organisation.[10]Such restrictions seek to ensure that ‘those who undertake the tasks of administration of the organization have more than a fleeting interest and experience of its character and objectives.’[11]For example in Lovell and

Ors v Federated Liquor and Allied Industries Employees’ Union of Australia Smithers and

Evatt JJ stated:

It is no doubt one of the purposes of registration that management and control of the Union be in the hands of effective committees which are themselves under appropriate control of the membership...the provision of effective committees depends upon the election thereto of persons with a knowledge of the industry, the Act, the Union rules and a degree of business capacity.[12]

[9]Kayne v Australian Broadcasting Commission Staff Association (1978) 34 FLR 104 at 109

[10]See Cameron v Australian Workers’ Union (1959) 2 FLR 45; Leveridge v Shop Distributive and Allied Employees’

[11]Cameron v Australian Workers’ Union (1959) 2 FLR 45 at 59

[12]Lovell and Ors a Federated Liquor and Allied Industries Employees’ Union of Australia (1978) 35 FLR 72 at 714

[48] When considering the reasonableness of such restrictions, factors such as the scope of the restriction, the prevailing characteristics of the membership, the duties of the office and the proportion of members excluded from office have been considered.13 For example restrictions that exclude a large number of members have been found to be unreasonable14 and

restrictions appropriate to higher offices might be onerous when applied to other offices.15

[49] The alterations before me prohibit producer members who have not received ‘a bona fide producer credit or equivalent’ from being elected to office (proposed sub rule 6(c)(ii)(A)). The achievement of a ‘bona fide producer credit’ would appear to be a relevant surrogate for knowledge of the industry and a degree of business capacity and therefore likely to achieve the desired outcome of a ‘high standard of leadership’.

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[50] However I express concern as to whether the term ‘bona fide producer credit or equivalent’ is sufficiently certain in its meaning such that a member will be able to ascertain his or her eligibility for office. It might be that the term ‘bona fide producer credit’ is so well known and understood in the industry such that each member will have no doubt as to whether he or she fulfils this criterion. However, in my opinion, whether a member has an ‘equivalent’ to a ‘bona fide producer credit’ is vague and uncertain.

[51] It is established case law that a rule that is vague and uncertain and which results in detrimental effects on members can be oppressive, unreasonable and unjust. For example, Morgan J found in Cameron v Australian Workers’ Union that a vague and uncertain rule

which could result in the expulsion of members imposed unreasonable conditions upon

members.16

[52] In my opinion the term ‘bona fide producer credit or equivalent’ is vague and uncertain to the extent that a member may not be able to ascertain whether he or she is able to run for office. Nor is it clear who or which body makes the decision as to whether a member has a bona fide producer credit or equivalent and therefore to which classification of membership (Voting or Non-Voting) each member belongs. The detriment resulting from this uncertainty is that members may be prohibited from standing for office.

[53] As stated above, the objectives of the Act include the encouragement of democratic control and the participation of members in the affairs of organisations. A restriction that seeks to ensure the committee is comprised of appropriately qualified persons to competently manage the organisation would seem reasonable. However in this instance the criteria for determining whether a person is eligible to run for office and the question of who or what makes this determination are so vague and uncertain that the alterations impose conditions on members that, having regard to Parliament’s intention and the objects of the Act, are oppressive, unreasonable and unjust. This affirms my view in paragraph [44] that proposed sub rules 6(b) and 6(a) are contrary to subsection 142(1)(c) of the Act.

Entitlement to remain a member

[54] Proposed sub rule 6(b)(ii)(A), which provides for the Associate category of Non- Voting members, states that ‘after 2 years of membership in the Associate category, an associate member must demonstrate to the organisation that they have made sufficient career advancement in order to continue membership of the Association.’

[55] In accordance with the line of reasoning outlined in paragraph [33], proposed sub rule 6(b)(ii)(A) contravenes a member’s entitlement to become and remain a member of a registered organisation, so long as that member complies with the rules of the organisation and does not cease to be eligible to become a member. I conclude therefore that the alteration to sub rule 6(b)(ii)(A) contravenes section 166 of the Act.

[56] Accordingly, I find that proposed sub rules 6(b) and 6(c) contravene sections 5, 142, 166 and 345 of the Act. I am therefore unable to certify the alterations to rule 6.

Alterations to rule 8

[57] Rule 8 deals with the process for applying for membership of the organisation.

Currently sub rule 8(b) provides that any person engaged in the industry shall be eligible for
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membership upon nomination by a member and acceptance by the Council. The alterations to rule 8 delete the current sub rule 8(a) and renumber the current sub rule 8(b) as sub rule 8(a). The sub rule is also amended slightly so as to empower the Council’s delegate in addition to the Council to accept or reject a membership application.

Nomination of members

[58] Section 166 of the Act entitles a person to join an appropriate organisation upon payment of an amount stipulated under the organisations’ rules. Section 166 entitles a person employed in connection with an industry – unless he or she is of ‘general bad character’ – to join an appropriate organisation if the requisite eligibility rules are met.

[59] In Bywater v Federated Clerks Union of Australia Dunphy J discussed section 83A of

the Conciliation and Arbitration Act 1904 (relevantly the same as section 166 of the Act),
stating that:

This section confers a new statutory right upon applicants for membership of an

organization, and this right operates against the will of the organization...17

[60] Also in Australian Iron and Steel Ltd v Australasian Coal and Shale Employees Federation the Full Court of the Commonwealth Industrial Court stated:

We think this right carries with it a correlative obligation on the part of the

organization to admit a person so entitled.18

[61] Drawing from these principles, entitlement to membership does not allow for a process by which membership can only be obtained by nomination. Current sub rule 8(b) and proposed sub rule 8(a) do not allow eligible persons to join the organisation, unless they have been nominated by an existing member. Consequently, in my opinion the current and the proposed rule offend against section 166 of the Act.

[62] I note that the current rule has not been the subject of recent analysis or consideration by the Commission or its predecessors. The electronic records of the Commission establish that the rule has existed in its current form since at least 24 February 2000. Now that the rule is before me for consideration, and as stated in the paragraph above, I have concluded that current sub rule 8(b) and proposed sub rule 8(a) offend against section 166 of the Act. I am therefore unable to certify the proposed alterations to rule 8.

Alterations to Rules 10 and 12 - Special Purpose Vehicles

[63] Current rule 10 deals with the process for resigning from membership of the

organisation. Current rule 12 provides for the removal or suspension of members, including
removal if a member fails to any pay subscription, call, levy or other charge.

[64] The alterations to rules 10 and 12, among other things, refer to members which are Special Purpose Vehicles. The explanatory summary provided to members states that ‘For the avoidance of doubt and in acknowledgement of the changes in business practice since the introduction of the Producer Offset, Special Purpose Vehicles associated with Members are leviable.’ ‘Special Purpose Vehicle’ is defined in the alterations to rule 1 as ‘an entity associated with a Member or its shareholders or directors which is involved in the production

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of a program.’ The term is commonly used to describe a legal entity created to fulfill narrow,
specific or temporary objectives.

[65] The alterations to sub rule 10(c) refer to any dues (including subscriptions and/or levies) payable but not paid by former Members of the Association or any Special Purpose Vehicle associated with that member. The alterations provide that a member may be sued for any debt payable but not paid by any Special Purpose Vehicle ‘associated with’ that Member. Altered sub rule 12(a)(ii) provides for the suspension of a Member if a Member fails to pay any subscription call, levy or other charge properly made against a Member or any Special Purpose Vehicle associated with the Member.

[66] The effect of the alterations to sub rules 10(c) and 12(a)(ii) are that of transferring or ‘novating’ the liability of one member (the Special Purpose Vehicle) to another (the Member) due to their ‘association’ with that Special Purpose Vehicle should the Special Purpose Vehicle fail to pay its debts to the organisation. As discussed in Leveraged Equities Limited v Goodridge19 it is possible to give prospective consent to the elements required for novation,

however certainty about the terms and conditions of the prospective novation is a necessary
element.

[67] I note that current sub rule 8(k) states that all Members shall be deemed to have accepted and be bound by the provisions of the Constitution. It is established case law that members of a registered organisation contract with other members of that organisation to be bound by the rules of that organisation.20 It therefore follows that if the rules expressly state that liability can be unilaterally novated this amounts to prospective consent on behalf of the members to such a novation.21 (As an aside, it should be noted that recovery of any liability in relation to a person’s membership is limited by section 178 of the Act, such that legal proceedings cannot be commenced more than 12 months after the amount became payable.)

[68] I express, however, concern with the use of the term ‘associated with’ in both amended sub rules 10(c) and 12(a)(ii). It is unclear on the face of the alterations the level or type of association required in order to effect the transfer or novation in the circumstances outlined in sub rule 10(c). It is also unclear as to whether two or more members may incur the same liability regarding the unpaid dues of Special Purpose Vehicle if they were each in possession of the requisite ‘association’. In my opinion, the requisite certainty about the terms and conditions of the novation is absent.

[69] The question then becomes whether this uncertainty is so vague and uncertain as to

impose oppressive, unreasonable or unjust conditions upon members, or applicants for
membership with the meaning of section 141(2)(c) of the Act.

[70] As explained in paragraph [50] a rule that is vague and uncertain and which results in detrimental effects on members can be oppressive, unreasonable and unjust. In this case the term ‘associated with’ is both one of vague and uncertain meaning and of undefined and unlimited parameters. In my view, there would be room for wide differences of opinion as to whether particular members of the organisation would incur liability due to their ‘association’ with a Special Purpose Vehicle. It would be impossible for a member of the organisation to know whether he or she could potentially incur such a liability; and whether such liability will be held jointly or severably with other ‘associated’ members. I note here that the consequences for non-payment of any liabilities are severe: rule 12 contemplates suspension or removal of the member from the Association within 3 months of any such non-payment.

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[71] While I have no objection to a rule which requires the levying of Special Purpose Vehicles (the desire of the organisation as explained in the explanatory summary provided to members), in my view the novation arrangements are vague and uncertain. It is my opinion, therefore, that certification of the alterations to sub rules 10(c) and 12(a)(ii) would impose conditions upon members conditions or obligations that, having regard to Parliament’s intention in enacting this Act and the objects of this Act and the Fair Work Act, are oppressive, unreasonable or unjust. Consequently, I am unable to certify the alterations to rules 10 and 12.

Alterations to Rule 11 – termination of membership

[72] Rule 11 provides for termination of membership when certain events occur. The

alterations to rule 11 provide that the membership of any Member shall cease if the Member
being a company becomes subject to any form of external administration.

[73] Currently the rule provides that membership shall cease immediately the point at which Council becomes aware of a pertinent event relating to that Member. The rule fails to provide a procedure through which such members may be heard or given an opportunity to respond prior to termination of their membership (unless terminated in accordance with rule 12). There is authority for the proposition that principles of natural justice require the provision of the opportunity to be heard prior to the termination of membership.22 To not do

so renders the current rule oppressive, unreasonable and unjust to members having regard to
Parliament’s intention and the objects of the Act.

[74] As stated above, the alterations to rule 11 provide that the membership of any Member shall cease if the Member being a company becomes subject to any form of external administration. As with the other events that lead to termination of membership, there is no means for the member to be heard. In my opinion proposed rule 11 places oppressive, unreasonable and unjust conditions on members having regard to Parliament’s intention and the objects of the Act, contrary to requirements of subsection 142(1)(c) of the Act.

[75] Again, I note there has been no recent consideration of this rule. The electronic records of the Commission establish that the rule has existed in its current form since at least 24 February 2000. However the rule is now before me for consideration and I conclude that the current and proposed rule offend against subsection 142(1)(c) of the Act. I am therefore unable to certify the proposed alterations to rule 11.

Alteration to rule 12 – removal or suspension of members

[76] Current rule 12 provides a process for removal or suspension of members for, among other things, acting contrary to or disregarding decisions or laws made by the Council, and acting contrary to the best interests of the organisation. The alterations to the rule largely make cosmetic changes, such as capitalising the word ‘member’, and as noted above, include references to Special Purpose vehicles.

[77] As discussed in paragraph [51] a rule that is vague and uncertain but which results in detrimental effects on members can be oppressive, unreasonable and unjust. In particular ‘acting contrary to the resolutions of conference’ and ‘acting detrimentally to the interests of the union’, have been found to impose oppressive, unreasonable and unjust conditions on

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members.23 In my view, current rule 12 imposes oppressive, unreasonable and unjust conditions on members in that suspension or removal from membership can result from acting contrary to decisions made by the Council, and acting contrary to the best interests of the organisation.

[78] Again, I note there has been no recent consideration of this rule. The electronic records of the Commission establish that the rule has existed in its current form since at least 24 February 2000. However the rule is before me now for consideration and I conclude that it offends against subsection 142(1)(c) of the Act. It is my opinion that, insofar as current 12 contravenes sections 142 of the Act and insofar as the alterations to rule 12 continue to contravene section 142, I am unable to certify the alterations to rule 12.

Alterations to Rule 15

[79] Current rule 15 sets out the composition of the Council, the terms of office and the process for filling casual vacancies. The alterations to rule 15, among other things, renumber the rule as rule 14, change the composition of Council, specify criteria for holding office, change terms of office and provide for the ‘selection’ of the Vice-President of the organisation.

Composition of Council

[80] The alterations to rule 15 provide that Council shall be comprised of no less than 13 and no more than 15 Councillors which must include a President, elected by the financial members entitled to vote; a Vice-President selected by the Council from its members and additional representatives (Councillors). The additional Councillor positions (proposed rules 14(a)(i)(C) to 14(a)(i)(H)) include the following:

2 representatives of Members who have themselves produced and had exhibited a feature length film within the immediately preceding 5 years, elected by Financial Members eligible to vote;

2 representatives of Members who have themselves produced and had broadcast a drama or light entertainment television program of at least one half hour commercial television duration within the immediately preceding 2 years, elected by Financial Members entitled to vote;

2 representatives of Members who have themselves produced and had broadcast a documentary television program of at least one half hour commercial television duration within the immediately preceding 2 years, elected by Financial Members entitled to vote;

2 representatives of Members who have themselves produced and had broadcast a children’s television program of at least one half hour commercial television duration within the immediately preceding 2 years, elected by Financial Members entitled to vote;

2 representatives of Members who have themselves produced interactive content for which they have been credited in a producing capacity for at least two projects that have been released commercially, elected by Financial Members eligible to vote;

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2 representatives of Members who provide services or facilities to Producer Members
elected by Financial Members eligible to vote.

[81] The Councillor representatives listed above reflect the new structure established in proposed rule 6. I therefore need to determine whether the alterations to rule 15 are severable from the alterations in rule 6. In reaching my decision, I refer to the case In Re Food Preservers’ Union of Australia,24 in which the question of severing rules was considered. In

their decision, the majority held that:

....where an organisation has made alterations to a number of its rules, each rule and alteration being completely independent of any other rule or alteration, the Registrar would be free to give his certificate with respect to some of those rule alterations and to refrain from giving his certificate with respect to others. On the other hand, where

alterations to rules are dependent upon other alterations to rules, difficulties arise

where the certificate is given to some of the alterations and not to others.25

[82]      Their Honours go on to note:

There would need to be a full examination of all the rules to ascertain whether the

meaning and effect of the rules to which the certificate had been given and had been

altered or modified by the fact that some rules have not come into effect.26

[83] The question of severability therefore turns upon whether or not rule 15 can be regarded as completely independent of rule 6. I would need to be satisfied that the removal the rule 6 would not affect the meaning or effect of rule 15. In my view the alterations to rule 15 interrelate with the alterations to rule 6. Rule 15 relies on and reflects the classification structure established by the alterations to rule 6 and therefore cannot be considered independently. As stated in paragraph [56] the alterations to rule 6 cannot be certified, consequently the alterations to rule 15 cannot be certified.

Criteria for holding office

[84] The alterations to rule 15 specify, among other things, the criteria for Councillors on the Council of Management to be elected to office. Proposed sub rules 14(a)(i)(C) to 14(a)(i)(G) establish restrictions on the right of producers to be elected to office, in addition to the restrictions imposed by sub rule 6(c)(ii), requiring a producer candidate to achieve specified forms of media production within specified periods. As discussed in paragraphs [46] - [48] restrictions on the right to be elected to office which provide for competent management committees can be reasonable, depending on the circumstances.

[85] It appears that the restrictions on the right to be elected to office in the alterations to rule 15 aim to ensure that persons elected to office have appropriate industry experience for the purpose of maintaining ‘a high standard of leadership’ (as desired by the organisation, see paragraph [32]). Unlike the restriction imposed by sub rule 6(c)(ii), the restrictions are not vague nor uncertain: a clearly identified form of media production within a clearly identified timeframe must be achieved. However it is not clear how many and what proportion of members would be excluded from office, nor is it clear why representatives of producers have more onerous conditions imposed than representatives of other members and more onerous those than imposed on the office of President. As noted in paragraph [48] these are pertinent

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questions which go to assessing the reasonableness of restrictions placed on the right to
nominate for office.

[86] However I do not need to determine whether the restrictions are reasonable because I have determined that the alterations to rule 15 cannot be certified (see paragraph [83]). However if the organisation were to make subsequent alterations with similar provisions, I would need to be satisfied of the reasonableness of the restrictions on the rights of members to be elected to office in order to certify such alterations.

Truncation of terms of office

[87] One consequential effect of the alterations to rule 15 is that some of the current holders of office on the Council will have their terms of office truncated. The terms of office of persons elected in 2013 are due to expire, under current rule 15A, at the conclusion of the next general meeting, the last of which was held on 19 September 2013.

[88] Rule 22 of the organisation’s rules provides that the Annual General Meeting of the organisation shall be held each calendar year on a date selected by the Council, being a date not more than three (3) months after the close of the financial year and not more than twelve (12) months from the last Annual General Meeting. Thus, while a specific date of expiry of the terms of office of the Council of Management cannot be provided, it is clear that certification of the alterations at this stage would result in the truncation of four of the Councillors by two months.

[89] In considering the alterations, I refer to previous decisions which articulate the following principles pertaining to the truncation of offices. It is established precedent that an elected office may be abolished during the term of an incumbent provided such abolition is effected in accordance with the rules and is bona fide.27 However, alterations that seek to

abolish an office during its term must not have an oppressive, unreasonable or unjust effect on

members or applicants for membership (in the plural).28 No submissions or declarations from

officers have been provided in support of the alterations to this rule.

[90] It is my opinion that, in this particular case, the truncation of the terms of office impose upon members or applicants for membership conditions that are oppressive, unreasonable and unjust within the meaning of subsection 142(1)(c) of the Act. The effect of the truncation of these offices is to deprive certain financial members of the organisation of their democratically-elected representatives. ‘Non-Voting’ financial members then cannot cast a vote for their replacements and certain groups of members are barred from representation. They are effectively barred from the electoral process. Under these circumstances and in the absence of any submission from the organisation to the contrary, I cannot see that the truncation of some offices of the Council can be viewed as bona fide or anything other than imposing conditions upon those members that are oppressive, unreasonable and unjust.

Increases of terms of office

[91] I also note that the alterations to rule 15 extend the terms of office for some of the current Councillors from one to two years. Proposed sub rule 14(a)(ii) provides that ‘each councillor appointed after 2012 shall hold office for 2 years until the Annual General Meeting that is 2 years after the Councillors appointment except that in the election held in 2013 one Councillor from each of the Councillors described in clauses 14(a)(i), (C), (D), (E), (F), (G),

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(H), will only hold office for one year, the choice of which Councillor to so hold office to be
made by lot, as overseen by the Returning Officer.’

[92] It is well established that a ‘term of office’ cannot be changed during the term and that if the rules are so altered; they take effect at the next election.29 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, but the longer period might make him well consider the desirability of putting in a nomination...30

[93] The alterations before me are intended to apply retrospectively as they explicitly state ‘each councillor appointed after 2012...’ (my emphasis). Following Beeson, a voter in the 2013 elections of the organisation might have been prepared to give their vote to a candidate for one year, but might have hesitated to do so for double that period. To change the term of the officers elected in 2013 would, in my opinion, impose oppressive, unreasonable and unjust conditions on members having regard to the objects of the Act and is therefore contrary to subsection 142(1)(c) of the Act.

[94] Further, as no determination was made by lot by the returning officer in 2013, as required by proposed sub rule 14(a)(ii), it is not possible to determine which Councillors would be subject to truncation of office and which Councillors would be subject to extension of their term of office. This uncertainty, in my view, would undermine the effective operation and efficient management of the organisation, as espoused in subsection 5(3) of the Act, and impose oppressive, unreasonable and unjust conditions on members having regard to the objects of the Act and is therefore contrary to subsection 142(1)(c) of the Act.

Increases of terms of office and casual vacancies

[95]      Proposed sub rule 14(c) provides that:

(i) Subject to paragraphs (ii) and (iii) hereof, the Council may fill any casual vacancy which occurs in the Council by the appointment of a person with the same qualification under sub-paragraph (a)(i) as that in which the vacancy occurs.

...

(iii) If a casual vacancy occurs in the office of the Vice President that same may be filled by the appointment by the Council of a Financial Member.

[96] Section 146 of the Act provides that rules of an organisation may provide for the filling of a casual vacancy but must not permit a casual vacancy to be filled otherwise than by election for so much on the expired part of the term as exceeds 12 months or three-quarters of the term of office, whichever is the greater.

[97] The proposed extension of the terms of office from one to two years renders proposed

sub rule 14(c) in breach of the Act because the rules provides that an appointment can be
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made at any time, including before the statutory minima. If the alterations to rule 15 were

certified, new sub rule 14(c) would be in contravention of section 146 the Act.

The office of Vice-President

[98] Proposed sub rule 14(a)(i)(B) provides that the Vice-President shall be ‘selected by the Council from its members in accordance with Rule 14(e), but subject to Rule 14(c), which person will (but for the avoidance of doubt) be one of, and not in addition to, the Councillors described in the following sub-paragraphs’(my emphasis). Proposed sub rule 14(e) provides that the Vice-President will be selected by a simple majority vote at the first Council meeting after the Annual General Meeting.

[99] Subsection 143(1) of the Act, stipulates that the rules of an organisation must provide for the election of the holder of each office in the organisation and must be drafted to ensure that, as far as practicable, no irregularity occurs in any election. Rules must provide for, among other things, the conduct of every such election by a returning officer, including the conduct of any ballot required; the conduct of the election by a returning officer who is not the holder of any office or an employee of the organisation; the manner in which persons become candidates and, where a ballot is required, that it be a secret ballot and provide for absent voting and for scrutineers.

[100] I note that proposed rules 15 and 16 make appropriate provisions for the election of the office of President and the election of Councillors. However corresponding provisions for the election of the office of Vice-President have been removed by the alterations; and the proposed sub rule 14(a)(i)(B) provides for selection, rather than election, of the Vice- President.

[101] The explanatory summary provided to members explains that because the Vice-

President is the accounting officer of the organisation ‘it is vital that he or she is suitably qualified and able to carry out these roles as required’. Although it is a legitimate aim to ensure office-bearers can competently fulfil their duties (in this case, to ensure expertise in financial matters), the alterations contravene subsection 143(1) because they fail to make provision for the election of an office.

[102] I conclude that amended rule 15 (renumbered 14) is unable to be certified because it

cannot be severed from rule 6 and it because it offends against sections 142, 143 and 146 of
the Act.

Alterations to rules 15A and 16 – Returning Officer

[103] The notification specified that rule 15A be renumbered 15 and that rules 15 and 16 be

amended so as to, among other things, alter the qualifications required for a person to be
appointed as a Returning Officer.

[104] Proposed sub rules 15(a) and 16(a) provide that the Council appoint a Returning

Officer for, respectively, the elections of President and Councillors. The Returning Officer may not be a candidate at the election. Current sub rule 15A(a) provides that the Returning Officer may not be the holder of any office in, nor an employee of, the Association, Division or other branch or section of the Association nor a candidate at the election.

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[105] The current sub rule 15A(a) complies with subsection 143(1)(b) of the Act, which

requires that rules of the organisation must provide for the conduct of every such election by a returning officer who is not the holder or any office in, or an employee of, the organisation of a branch, section or division of the organisation. The amended version removes these requirements and replaces them with the reduced requirement that Returning Officer need only not be a candidate for election in contradiction to subsection 143(1)(b).

[106] Consequently I find that proposed sub rules 15(a) and 16(a) offend against subsection 143(1)(b) of the Act. I am therefore unable to certify the alterations to rules 15 and 16.

Alterations to rule 28 – extension of timelines

[107] Currently sub rule 28(c) provides that financial statements for each financial year shall be prepared by the Council, audited by an auditor and then signed by the Council within three months of the end of the financial year; after which they should be available for inspection by any Member. Currently the sub rule provides for signing the financial statements by the Council after the audit but before they are provided to members. This appears to impose an obligation on the organisation additional to those imposed by the Act. The Act does not require the Council to sign the statements after the audit, but it does require the Council to make certain resolutions before the statements are audited (this obligation derives from the reporting guidelines made under section 255 of the Act).

[108] The alterations to rule 28 extend the time by which the Council must sign the

statement from within three months to within six months of the end of the financial year. The effect of the alterations is that if the Council did not sign the alterations until the sixth month after the end of the financial year, it may not be possible for the organisation to provide the audited statements to members and to present them to a meeting of members in accordance with the timelines required by the Act (see sections 265 and 266 of the Act).

[109] Although the alterations to sub rule 28(c) could lead to the situation in which the

requirements of the Act are contravened, they do not necessarily have this effect. The alterations to sub rule 28(c) are therefore capable of certification. However, I remind the organisation that the Act requires the Council to meet before the financial report is audited and that the Act imposes specific timelines for the provision of the audited financial report to members and its presentation to a meeting of members (sections 255, 265 and 266 of the Act).

Insertion of new rule 20 – the Amendment Act Amendments

[110] I must now turn my mind to the alterations made in order to comply with the

provisions of the Fair Work (Registered Organisations) Amendment Act 2012 (the
Amendment Act).

[111] The particulars provide for the amendment of rules 1 and 28 and the insertion of new rule 20 into the rules of the organisation. The alterations were made for the purpose of complying with provisions of the Fair Work (Registered Organisations) Amendment Act 2012 (the Amendment Act) regarding the rules of registered organisations. In particular, the alterations provide for specified disclosures, the implementation of policies relating to expenditure and the mandatory training of officers with duties that relate to the financial management of the organisation.

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[112] The rules largely incorporate the requirements of the Amendment Act. However, for

the following reason, I believe the rules will not meet all of the requirements of the
Amendment Act.

[113] Subsection 148A(1) of the Act stipulates that the rules of an organisation must require the disclosure, by each officer of the organisation, to the organisation (my emphasis) of any remuneration paid to the officer because the officer is a member of a Board. Proposed sub rule 20(b)(i) requires officers disclose to membership any remuneration paid to the officer. This imposes a different obligation to that required by the Act. The Act requires officers to make the disclosure to the organisation, not the membership. Consequently the alterations omit the requirement for officers to make specified disclosures to the organisation.

[114] Notwithstanding this omission, the substance of the rule alterations for the purpose of complying with the Amendment Act complies with the statutory requirements. Although a further alteration is needed this does not prevent the certification of the alterations that have been made. However, the omission of the requirement for specified disclosures by officers to the organisation will need to be remedied by the organisation as expeditiously as possible in order to ensure full compliance with the provisions of the Amendment Act.

[115] I also note that proposed sub rule 20(b)(i) does not limit the disclosures to

remuneration paid to the officer because the officer is a member of a Board. It requires disclosures if the officer was nominated for any position (my emphasis). Proposed sub rule 20(b)(i) also requires the disclosures to made by the relevant officer to all members (my emphasis). In summary, proposed sub rule 20(b)(i) goes beyond the requirements of the Act and the organisation may wish to reconsider this sub rule.

[116] Also I note incorrect references in proposed sub rule 20(a)(ii) which incorrectly refers to sub rule 20(c)(i); 20(a)(iii) which incorrectly refers to sub rule 20C(i) and sub rule 20C(iii); and proposed sub rule 28(h) which incorrectly refers to sub rule 28(d). I also note that the alterations provide for two sub rules 20(a)(ii). I recommend the organisation amend these errors as soon as practicable.

Severability

[117]    I must now turn my mind to whether or not the alterations that are not certifiable

are severable from the remainder of the alterations. As discussed in paragraphs [81] - [82], the question of severability therefore turns upon whether or not the impugned alterations, that is the alterations to rules 3, 6, 8, 10, 11, 12, 15, 15A, and 16, can be regarded as completely independent of the remaining alterations. I would need to be satisfied that the removal the impugned alterations would not affect the meaning or effect of the other alterations.

[118] It is my opinion that removal of amendments to rules 3, 6, 8, 10, 11, 12, 15, 15A, and 16 has no effect on the meaning of the proposed amendments to rules 1, the proposed new rule 20 and the proposed amendments to rule 28. These include alterations made for the purpose of complying with provisions of the Amendment Act, in addition to other alterations that are in my view able to be viewed as independent of the remaining alterations. Consequently, the amendments to rules 1, 28 and the proposed insertion of new rule 20 are severable from the remainder of the rules contained in the notice of particulars.

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[119] I am further of the opinion that amendments to a number of rules that are independent of the impugned alterations are likewise severable from the remainder of the rules contained in the notice of particulars. These include the alterations to rules: 2, 4, 5, 7, 9A, the renumbering and amendment of 14, the amendment of rules 17 and 18, the renumbering and amendment of rules 21, 22, 23 and 24, the amendment of rules 27, 28, 29, 35, 36, 37 and 38. These alterations include grammatical changes, deletion of superfluous rules and sub rules and other changes I consider to be independent from the impugned alterations.

[120] However, I note there are a number of alterations which in my view interrelate with the impugned alterations and cannot have been contemplated independently from them. These include the following: amendments to rules 9 and 19, the renumbering and amendments to rules 20 and 23, the deletion of rules 13 and 25 and the amendment of rule 26.

[121] Alterations to rules 9, 19, 20 and 26 and the removal of rule 25 delete references to Divisions that reflect changes in the new structure outlined in the impugned alterations to rule 6. For these reasons, I consider that these alterations are not severable from the impugned alterations and likewise unable to be certified.

[122] The deletion of current rule 13 interrelates with the proposed changes to rule 6(a),

which I have found to be an eligibility rule. Current rule 13 provides that members of the organisation ‘are not partners’. Rule 13 is deleted and proposed rule 6(a) amended to include the sentence ‘The members are not partners’. As outlined in paragraph [17], I am unable to certify changes to eligibility rules. As the deletion of rule 13 is unlikely to have been considered separately to the amendments to 6(a), I consider it to be not severable from the changes to sub rule 6(a). Consequently I am unable to certify the deletion of rule 13.

[123] Further, the alterations to rule 23 (renumbered 24) include a reference to 12(e), a

proposed sub rule that has not been certified. Therefore, I view the alterations to rule 23 not
severable from the impugned alterations and consequently unable to be certified.

[124] On the information contained in the notice and the amended declaration, I am satisfied the alterations to the rules have been made under the rules of the organisation.

[125] In my opinion, with the exception of amendments to rules 3, 6, 8, 9, 10, 11, 12, 15, 15A, 16, 19, 20 (not including the insertion of new rule 20), 23, 26 and the deletion of rules 13 and 25, which I deem uncertifiable due to reasons outlined in the decision above, the alterations comply with and are not contrary to the Fair Work (Registered Organisations) Act

2009 (the RO Act), the Amendment Act, the Fair Work Act 2009, modern awards and

enterprise agreements, and are not otherwise contrary to law. I certify all but these
amendments accordingly under subsection 159(1) of the RO Act.

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[126] I note that an inevitable consequence of some proposed alterations not being certified is that the rule book of the organisation will contain two separate rules 13, 20 and 25. I acknowledge the undesirability of this outcome. However it is my view that this outcome does not result in the rules of the organisation being rendered inoperable; nor does it create ambiguity to the extent that it would impose oppressive, unreasonable or unjust conditions on members or potential members. However, I strongly urge that the organisation seek to remedy the double numbering of the above mentioned rules as soon as practicable.

DELEGATE OF THE GENERAL MANAGER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR548742>

13 See Cameron v Australian Workers’ Union (1959) 2 FLR 45; Leveridge v Shop Distributive and Allied Employees’

Association (1977) 31 FLR 385; Allen v Townsend and Ors (1977) 31 FLR 431; Lovell and Ors v Federated Liquor and

Allied Industries Employees’ Union of Australia (1978) 35 FLR 72

14 MacDonald v The Amalgamated Engineering Union (Australian Section) (1962) 3 FLR 466 at 449

15 Leveridge v Shop Distributive and Allied Employees’ Association (1977) 31 FLR 385 at 403

16 (1959) 2 FLR 45 at 46. See also Wright v Australian Workers’ Union (1965) 7 FLR 148

17 Bywater v The Federated Clerks Union of Australia (1955) 82 CAR 46 at [51]

18 Australian Iron and Steel Ltd v Australasian Coal and Shale Employees’ Federation (1957) 1 FLR 54 at [66], which

discusses section 144 of the Conciliation and Arbitration Act 1904, a further iteration of section 83A.

19 Leveraged Equities Limited v Goodridge [2011] FCAFC 3 at [324]–[328]

20 Gordon v Carroll and others; Gordon v Catoni and others; Gordon v Hospital Employees Federation of Australia (1975)

27 FLR 129 at 131

21 Leveraged Equities Limited v Goodridge [2011] FCAFC 3 at [324]–[328]

22 Re An Election of Offices in the Federated Liquor and Allied Industries Employees’ Union of Australia South Australian

Branch v Re An Application By Dianne June Kenward of An Enquiry Into the Said Election [1989] FCA 250

23 Thorton v Mackay (1946) 56 CAR 561; Hardiman v Transport Workers Union of Australia (1954) 80 CAR 232; Wright v

Australian Workers’ Union (1965) 7 FLR 148; Cassidy v Amalgamated Postal Workers Union of Australia (1967) 11

FLR 124

24 (1988) 79 ALR 138

25 Re Food Preservers’ Union of Australia and Another (1988) 79 ALR 138 per Northrop & Ryan JJ at 145

26 Ibid at 145

27 See the majority decision in Saint v Australian Postal and Telecommunications Union and Others (1976) 30 FLR 393

28 See Roughan v Australiasian Meat Industry Employees’ Union (1992) 36 FCR 536

29 See for example Beeson v Blayney & Ors (1965) 8 FLR 283, Higgins v McGrane & Anor (1961) 5 FLR 82

30 Ibid at 294-295

Relations Act 1988

Association (1977) 31 FLR 385; Allen v Townsend and Ors (1977) 31 FLR 431; Lovell and Ors v Federated Liquor and

Allied Industries Employees’ Union of Australia (1978) 35 FLR 72