Shop, Distributive and Allied Employees Association
[2018] FWCD 2897
•19 June 2018
| [2018] FWCD 2897 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Shop, Distributive and Allied Employees Association
(R2017/256)
| MURRAY FURLONG | MELBOURNE, 19 June 2018 |
Alteration of other rules of organisation.
On 1 November 2017 the Shop, Distributive and Allied Employees Association (the Union) lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to the Union’s rules.
The particulars:
· set out alterations to rules 6, 6A, 9, 10, 13, 15, 15A, 18, 20, 40, 41, 42, 43, 44, 45;
· inserted new rule 1A; and
· deleted rules 46, 47, 48 and 49.
On 23 April 2018 I certified alterations to rules 6, 6A, 9, 10, 13, 15A, 18, 20, 40, 41, 42, 43, 44, 45, the insertion of new rule 1A and the deletion of rules 46, 47, 48 and 49.[1] This decision deals with alterations to rule 15.
Proposed alterations to Rule 15
Alterations to rule 15 update references to legislation and the gender specific references found in this Rule. The particulars submitted by the organisation include the following alterations to those sub rules:
“Rule 15. Election of Officers and Executive Members in sub-rule (c)(1) for “his” substitute “his or her” and for “he” substitute “he or she” and in sub-rule (c)(2) for “He himself” substitute “He himself or she herself” and for “his” substitute “his or her” and in sub-rule (d)(l) for “he” substitute “he or she” and in sub-rule (d)(2) for “He himself” substitute “He himself or she herself” and for “his” substitute “his or her” and in sub-rule (e) for “his” substitute “his or her” and for “he” substitute “he or she”.”
Current sub rule 15(c) reads:
“A person shall not be eligible to be a candidate for any position in the Association if there is reasonable ground for believing that:-
(1) Within twelve months prior to the date of his nomination he was a member of any body of persons, incorporated or unincorporated, which by its constitution or propaganda or otherwise advocates or encourages the overthrow by force or violence of the established government of the Commonwealth or of a State or of any other civilised country or of organised government; or
(2) He himself advocates encourages, or has within twelve months prior to the date of his nomination advocated or encouraged the overthrow by force or violence of the established government of the Commonwealth or of a State or of any other civilised country or of organised government.”
Current sub rule 15(d) reads:
“A person shall not be eligible to hold or continue to hold any position in the
Association if there is reasonable ground for believing that:-
(1) He is a member of any body of persons, incorporated or unincorporated, which by its constitution or propaganda or otherwise advocates or encourages the overthrow by force or violence of the established government of the Commonwealth or of a State or of any civilised country or of any organised government; or
(2) He himself advocates or encourages, or has within twelve months prior to the date of his election advocated or encouraged, the overthrow by force or violence of the established government of the Commonwealth or of a State or of any other civilised country or of organised government.”
Current sub rule 15(e) reads:
“Every candidate for any position in the Association shall sign and lodge with his nomination a declaration that he is not ineligible under the provisions of Rule 15 (c) and (d).”
Relevantly, and additionally, rule 39 of the Union’s rules reads:
“In these rules, words importing the masculine gender shall be deemed and taken to include females and words importing the feminine gender shall be deemed to include males, and the singular to include the plural and the plural the singular unless the contrary as to gender or number is expressly provided.”
The alterations set out in paragraph 4 are in identical terms to alterations sought by the Union in matter R2017/22. In my decision, [2] I refused to certify the alterations and severed them from the remainder of the alterations sought on the basis that they were contrary to s. 142 (1)(d) of the Fair Work (Registered Organisations) Act 2009 (the Act).
Section 142 (1)(d) provides that the rules of an organisation
“must not discriminate between applicants for membership, or members, of the organisation on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”
The proposed alterations are almost identical to alterations sought by the Queensland Branch of the Union which were considered by Delegate Enright. Delegate Enright refused to certify the alterations, finding that they were contrary to s. 142 (1)(d).[3]
On 12 December 2017, Commission staff provided my decision to the Union and on 21 December 2017, Commission staff provided Delegate Enright’s decision to the Union and asked the Union if it wished to make any further submissions in support of the certification of Rule 15 as altered. In this correspondence Commission staff also wrote:
“You may also wish to address whether the current alterations can be distinguished from the previous alterations to Rule 15 sought by the SDA and dealt with in the previous decisions which have been provided to you.”
In correspondence of 13 December 2017 the Union submitted:
“What has been submitted to the General Manager by the Association on 1 November 2017 is not existing rule 15 of the National Rules but alterations to that rule which are on their face manifestly not objectionable. They seek to substitute inclusive wording for gender specific terms in Rule 15, as has been approved and certified for other rules of this Association.”
On 16 January 2018, the Union provided further submissions to the Commission.
Subsection 159(1) of the Act provides that an alteration of the rules does not take effect until I have certified, that in my opinion, the alteration:
(a) complies with and is not contrary to, this Act, the Fair Work Act, modern awards and enterprise agreements; and
(b) is not otherwise contrary to law; and
(c) has been made under the rules of the organisation.
As observed by the Full Bench in Re Australian Transport Officers Federation; Re Australian Shipping & Travel Officers Association[4] an alteration is to be understood in terms of the substance of a change to a rule and not simply the form of the change. The alterations I am being asked to certify are the added words themselves, in this case, the substitution of “he” with “he or she”. In the context of a union’s rules where such a change is of no substantive effect, due to the already existing gender neutral language determined by rule 39, the alteration is not contrary to the Act.
In my opinion, the alterations to rule 15 comply with and are not contrary to the Fair Work (Registered Organisations) Act 2009, the Fair Work Act 2009, modern awards and enterprise agreements, and are not otherwise contrary to law. I certify accordingly under subsection 159(1) of the Fair Work (Registered Organisations) Act 2009.
DELEGATE OF THE GENERAL MANAGER
[1] Shop, Distributive and Allied Employees Association [2018] FWCD 988.
[2] [2017] FWCD 2283.
[3] [2016] FWCD 1939.
[4] Re Australian Transport Officers Federation; Re Australian Shipping & Travel Officers Association (1990) 35 IR 297.
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