Shop, Distributive and Allied Employees Association
[2020] FWCD 631
•24 FEBRUARY 2020
| [2020] FWCD 631 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Shop, Distributive and Allied Employees Association
(R2019/137)
| MURRAY FURLONG | MELBOURNE, 24 FEBRUARY 2020 |
Alteration of other rules of organisation.
On 6 November 2019 the South Australian Branch of the Shop, Distributive and Allied Employees Association (the Branch) lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations its rules. Further information in support of the application was submitted by the Branch Secretary on 7 January 2020.
The particulars set out alterations to Rules:
3 – Interpretation;
10 – Contributions;
11 – Unfinancial Members;
27 – Electorates;
43 – Annual General Meeting;
44 – Special General Meeting;
48 – Financial Reporting; and
49 – Repeal or Alteration and/or Addition to Rules.The particulars also insert new Rule 11A – Waiver and delete existing Rules 51 and 52 from Part I – Transitional Provisions and insert a new Rule 51 in their place.
New Rule 51 states:
Despite the provisions of rule 28, and in accordance with Section 145 of the Fair Work (Registered Organisations) Act 2009, the term length of the Secretary/Treasurer and National Councillors elected in the year 2019 shall be for 5 years.
Rule 28 provides as follows:
28.1 The office of Secretary/Treasurer and Assistant Secretary shall be elected every four years in accordance with Rule 31.
28.2 Committee Members shall be elected every four years in accordance with Rule 31 by a direct voting system by and from the members of their respective Electorates.
28.3 The President and Vice-Presidents shall be elected every four years in accordance with Rule 32.
28.4 National Councillors shall be elected every four years in accordance with Rule 31.
Rule 31 does not specify the year in which elections are due. However, Rule 32.2 provides that “[t]he President and the Vice Presidents shall be elected in 1996 and every four years, in the same year as the election of members of the Committee of Management.”
In practice, elections for all offices have been conducted within the four-year election cycle commencing in 1996, with the exception of the Secretary/Treasurer and National Councillors, who were last elected in 2019.
In support of the alteration, the Branch has lodged a copy of a decision issued by Mr Coyle of the Registered Organisations Commission on 29 March 2019[1] pursuant to section 189 of the Fair Work (Registered Organisations) Act 2009 (RO Act). That decision notes:
[2] On a review of the rules of the Branch, it has been identified that there is a potential for confusion relating to the timing of the election for Branch Secretary/Treasurer. An arguable construction of the rule 32.3 of the Branch’s rules may imply that the election for Branch Secretary/Treasurer would be required in 1996 and every four years thereafter. But, historically, this has not been the case. In particular, that office is not elected in the same four year election cycle as the other members of the Committee of Management, including the Assistant Secretary.
[3] As it has been four years since the last election for the offices referred to in [1] above, it is necessary for an election to be held for those offices. In order to overcome any potential for future confusion relating to the operation of rule 32.3, the organisation may wish to consider rule changes and, if it chooses to do so, to bring all elections for the Committee of Management into the same election cycle.
Section 145 of the RO Act provides:
(1) The rules of an organisation must, subject to subsection (2), provide terms of office for officers in the organisation of no longer than 4 years without re‑election.
(2) The rules of an organisation, or a branch of an organisation, may provide that a particular term of office is extended for a specified period, where the extension is for the purpose of synchronising elections for offices in the organisation or branch, as the case may be.
(3) The term of an office must not be extended under subsection (2) so that the term exceeds 5 years.
(4) A reference in this section (other than subsection (2)) to the rules of an organisation includes a reference to the rules of a branch of the organisation.
By extending the length of the current terms of office of the Branch Secretary/Treasurer and National Councillors by one year to 2024, proposed Rule 51 synchronises elections for office in the Branch.
There is a rebuttable presumption that a rule alteration cannot retrospectively increase a term of office once an election has already taken place. In Beeson v Blayney, Joske J stated:
…in my view there is a prima facie principle of construction that unless it appears expressly or by implication in rules as amended that they are intended in their amended form to apply to past matters or events, including matters commenced but not completed at the time of the amendment, the amendments do not apply to the past or uncompleted matters.[2]
His Honour further noted:
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.[3]
The alteration before me can be distinguished on the basis that it is expressly intended to apply to the current term of office, in accordance with section 145 of the RO Act. Furthermore, a one-year extension from four to five years is relatively minor compared to the extension contemplated in Beeson v Blayney, which would have doubled the term of office. In my view, the alteration is a bona fide decision of the Branch to synchronise elections for office within the Branch. There is no evidence before me to suggest that it imposes an oppressive, unreasonable or unjust condition upon members or applicants for membership within the meaning of section 142(1)(c) of the RO Act.
The amendments to Rule 27 redefine the electorates to which members are allocated for the purposes of electing representatives to the Committee of Management. This change applies prospectively; the number of Committee of Management members to be elected in the forthcoming election will be determined based on the membership of each electorate on 31 March 2020.
The remaining alterations allow the Branch’s financial reports to be presented to the Committee of Management subject to a requirement that a special general meeting be held upon demand of 5% of the membership, provide alternative means of giving notice of annual and special general meetings and notices of motions to alter the Branch Rules, insert new provisions allowing for a temporary waiver of membership contributions in certain circumstances, delete redundant transitional rules and replace an outdated legislative reference.
On the information contained in the notice and subsequently provided by the Branch Secretary, I am satisfied the alterations have been made under the rules of the organisation.
On 7 January 2020, Joshua Peake, Branch Secretary, gave consent under subsection 159(2) of the Fair Work (Registered Organisations) Act 2009, for me 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 11A.1(iii), the word “and” has been added between “working” and “are”.
· In proposed Rule 48.4, the “s” has been deleted from “Associations”.
· In proposed Rule 27.1, the reference to “Electorate 5” has been deleted.
In my opinion, the alterations comply with and are not contrary to the RO 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 RO Act.
DELEGATE OF THE GENERAL MANAGER
[1] [2019] ROCD 38.
[2] Beeson v Blayney and Others (1965) 8 FLR 292, 294.
[3] (1965) 8 FLR 292, 295.
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