Shop, Distributive and Allied Employees Association
[2023] FWCD 7
•21 JUNE 2023
| [2023] FWCD 7 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Shop, Distributive and Allied Employees Association
(R2023/32)
| PATRICK MCCARTHY | MELBOURNE, 21 JUNE 2023 |
Alteration of other rules of organisation.
On 17 April 2023, the Shop, Distributive and Allied Employees Association’s Western Australian Branch (SDAEA-WA) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules.
The SDAEA-WA seeks certification of the alterations under s.159 of the Fair Work (Registered Organisations) Act 2009 (the Act).
The particulars set out alterations to SDAEA-WA Branch Rules 2, 7, 8, 10, 11, 13, 14, 17, 18, 19, 20, 21, 23, 24, 26, 28, 29, 30 and the deletion of Rule 31.
On the information contained in the notice and declaration, I am satisfied the alterations have been made under the rules of the organisation.
The proposed alterations to the SDAEA-WA’s rules are minor in scope and address a number of outdated and inconsistent rules to modernise the rules of the SDAEA-WA.
Replacement of gendered pronouns and language
The proposed alterations remove all masculine pronouns in the SDAEA-WA’s rulebook, replacing them with gender neutral pronouns or nouns. In a number of rules, “he” has been changed to “they”. Elsewhere, instances of masculine pronouns are replaced by the specific noun to which they reference. Occasionally, this change has necessitated the minor rewording of a rule. However, none of the alterations which remove gendered pronouns substantively affect the SDAEA-WA’s rules. Gendered language is proposed to be substituted with gender-neutral language in the following rules of the SDAEA-WA:
Sub-rules 7(a), 7(b), 7(c)(1), 7(c)(2), 7(d)(1), 7(d)(2), 7(e);
Sub-rule 8(b);
Sub-rules 10(a), 10(b)(2), 10(d)(1), 10(d)(2), 10(d)(3), 10(d)(6), 10(d)(10), 10(d)(12);
Rule 13;
Sub-rules 14(b)(ii), 14(b)(iv), 14(b)(v), 14(b)(vi), 14(b)(vii), 14(b)(ix);
Rule 17;
Sub-rules 18(a), 18(c);
Sub-rules 19(c), 19(i), 19(s), 19(t);
Sub-rules 20(a), 20(b), 20(c), 20(d), 20(e);
Rule 23;
Rule 24;
Rule 26; &
Sub-rules 29(b), 29(c).
Alterations that harmonise the rules of the SDAEA-WA with the federal SDAEA
Several proposed alterations update processes of the SDAEA-WA and in doing so harmonise the rules of the Branch with those of the SDAEA’s National Office. For example, Sub-rule 7(e) requires each nominee for an office in the SDAEA-WA to provide the Returning Officer with a signed declaration attesting to certain matters relevant to their eligibility for office. Under current Sub-rule 7(e), this declaration had to be witnessed by a Justice of the Peace or Commissioner for Declarations. Proposed Rule 7(e) removes the witnessing requirement, making the nomination process less onerous for prospective office-holders and consistent with SDAEA Federal Sub-rule 15(e).
The proposed alteration to Rule 28 also harmonises the procedures of the SDAEA-WA and the National Office. Current Rule 28 allows the SDAEA-WA’s Committee of Management to determine contributions payable by members from time to time, with the sum payable required to fall within the range of $2.00 and $260.00. The proposed alterations remove those amounts. Under proposed Rule 28 the amount determined by the Committee of Management “shall be the same as those fixed by the SDA National Executive pursuant to Rule 23(a) of the federal rules of the SDA”. SDAEA Federal Rule 23(a) references a minimum amount fixed by the National Executive. As a consequence, SDAEA members attached to the SDAEA-WA will pay contributions at the minimum rate fixed by the National Executive.[1]
Other alterations to rules regarding financial obligations of members
The proposed alterations to Rule 26, are associated with changes of a member’s home address. Members are required to report a change in residence to the Branch Secretary within 14 days. Under the current rules, the SDAEA-WA could fine any member up to $1.00 for neglecting to do so. The Branch does not in practice fine members for this, has no intention of doing so in the future,[2] and has therefore removed this power from their rules.
Further consistency alterations
The proposed alteration to branch Sub-rule 8(a) increases the potential pool of candidates to fill casual vacancies arising in SDAEA-WA offices. Current Sub-rule 8(a) allows for a casual vacancy in an SDAEA-WA office to be filled by any financial member of the Branch, provided that they have been a member of the branch for not less than 12 months at the date of appointment to fill the casual vacancy. The proposed alteration to Sub-rule 8(a) reduces this qualifying period to 3 months. Current SDAEA-WA Sub-rule 7(a) requires any prospective candidate for office in a scheduled election to have been a financial member of the SDAEA for a period of three months immediately preceding the closing of nominations. In fixing this inconsistency, the proposed alteration also renders the casual vacancy requirements less onerous, widening access to office for members of the Branch.
Alterations regarding obsolete forms of technology
Alterations are proposed to Sub-rule 11(e), which provides for the manner by which the Branch’s Committee of Management can summon meetings of members. Current Sub-rule 11(e) requires meetings to be summoned by the Branch Secretary or Branch President giving notice to each member “… personally or by writing, telegraph or telephone”. The proposed alteration allows for notice to be given via electronic means.
Rule 30 has also been altered. That rule sets out the SDAEA-WA’s rule altering procedure. The proposed alteration to Rule 30 allows for postal ballots of proposed rule alterations to be conducted via electronic means, replacing obsolete methods such as telex, telegram, lettergram and facsimile.
Other minor alterations
In addition to the changes discussed above, the SDAEA-WA has also transacted a number of minor alterations to their rules, which I will list briefly. The particulars:
change the address of their Branch office in Rule 2;
remove Rule 31, which is a transitional rule that ceased to have effect over 30 years ago;
remove various references to superseded industrial relations legislation and regulations, replacing them with references to the Fair Work (Registered Organisations) Act 2009 or Fair Work Act 2009 in Sub-rules 10(a), 14(b)(vii), 17, 21, 24 and 29;
replace a reference to the Australian Industrial Relations Commission with the Fair Work Commission in Rule 21.
In my opinion, the alterations comply with and are not contrary to the Act, the Fair Work Act 2009, modern awards and enterprise agreements, are not otherwise contrary to law and were made under the rules of the organisation. I certify accordingly under subsection 159(1) of the Act.
DELEGATE OF THE GENERAL MANAGER
[1] The meaning of this alteration was clarified in a phone conversation between staff of the Commission and an employee of the Branch, who confirmed that the National Executive do in practice set a minimum contribution fee for members across the entire organisation.
[2] See Schedule A of the 15 April 2023 declaration of SDAEA-WA Secretary Peter O’Keeffe.
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