Shop, Distributive and Allied Employees Association-Queensland Branch

[2016] FWCD 2685

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Shop, Distributive and Allied Employees Association
(R2016/71)
MR ENRIGHT	MELBOURNE, 2 MAY 2016
Alteration of other rules of organisation.

[1] On 28 April 2016 the Queensland 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.

[2] The particulars set out alterations to rules 7, 15 and 22. The alterations were made

for the purpose of correcting typographical errors in rules 7 and 15, providing for a system

of online membership application and clarifying the process for application for membership.

[3]        The alterations to rule 22 among other things provide the following:

(d) State Council and or Committee of Management reserve the right to reject any
applicant for membership and if so rejected the applicant shall be refunded any fee or
payment made with his/her application.
[4]        The current wording of the rule is as follows:
Unless rejected the applicant shall be bound by the registered rules of the Association
and Queensland Branch and shall pay the fees prescribed whilst a member.
Any applicant who is not accepted shall be refunded the fees tendered.
[5]        Section 166(1) of the Fair Work (Registered Organisation) Act 2009 (the Act)

provides that:

(1) Subject to any modern award or order of the FWC, a person who is eligible to
become a member of an organisation of employees under the eligibility rules of the
organisation that relate to the occupations in which, or the industry or enterprise in
relation to which, members are to be employed is, unless of general bad character,
entitled, subject to payment of any amount properly payable in relation to

membership:
[2016] FWCD 2685

(a) to be admitted as a member of the organisation; and
(b) to remain a member so long as the person complies with the rules of the
organisation.

[6] In my opinion, proposed rule 22(d) offends against the Act because it appears to

authorise State Council or the Committee of Management of the Branch to reject any

applicant for membership without reference to the caveats provided under s.166(1),

specifically, that an applicant must be ineligible for membership or of ‘general bad

character’.

[7] Consequently I refuse to certify proposed rule 22(d).

Severability

[8] I now consider whether the alterations that are not certifiable are severable from the

remainder of the alterations.

[9]

As I have discussed in previous decisions,

the question of severability turns upon

whether or not the impugned alterations can be regarded as completely independent of the

remaining alterations. I am required to be satisfied that the removal of the impugned

alterations would not affect the meaning or effect of the other alterations.

[10] The alterations to rule 22(d) in my opinion have no effect on the meaning of the

remainder of the alterations and are consequently able to be severed remainder of the rules

contained in the notice of particulars. I consider rule 22(d) severable from proposed rules

22(a) and (b), however, not from 22(c) and (e) as the resolution provides that the remaining

paragraphs of Rule 22 are to be deleted jointly and ‘replaced by proposed rules 22(c), (d) and

(e)’.

[11] On the information contained in the notice, I am satisfied the alterations have been

made under the rules of the organisation.

[2016] FWCD 2685

[12] In my opinion, with the exception of amendments to sub rules 22(c), (d) and (e), the

alterations 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

Printed by authority of the Commonwealth Government Printer

See Screen Producers Association of Australia [2014] FWCD 1821 at paras [81] – [82].

In the matter of the Queensland Branch of the Shop, Distributive and Allied Employees Association, the Fair Work Commission was asked to consider alterations to its rules, specifically rules 7, 15, and 22. The proposed changes were aimed at correcting typographical errors, implementing an online membership application system, and clarifying the membership application process. One of the alterations to rule 22, however, raised concerns regarding its compliance with the Fair Work (Registered Organisations) Act 2009. The alteration in question allowed the State Council or the Committee of Management to reject any applicant for membership without reference to the eligibility criteria outlined in section 166(1) of the Act.

The legal issue before the Commission was whether the proposed alteration to rule 22, which seemed to permit arbitrary rejection of membership applications, contravened the Act. Section 166(1) of the Act stipulates that unless an applicant is ineligible for membership or of 'general bad character', they are entitled to be admitted as a member and to remain a member provided they comply with the organisation's rules. The proposed rule 22(d) appeared to conflict with this provision by allowing for rejections without such criteria being considered. The Commission was required to decide whether this alteration could be certified as compliant with the Act.

In determining the matter, the Commission first examined whether the proposed rule 22(d) was severable from the other alterations. Severability was considered based on whether the impugned alterations could be regarded as independent from the rest. The Commission found that while rule 22(d) could be severed from rules 22(a) and (b), it could not be severed from rules 22(c) and (e) as the resolution provided for the deletion of the remaining paragraphs of Rule 22 and their replacement jointly with the proposed rules 22(c), (d), and (e). Consequently, the Commission refused to certify rule 22(d) as it appeared to contravene section 166(1) of the Act. The Commission did, however, certify the other alterations as compliant with the Act.

The Fair Work Commission certified the alterations to rules 7 and 15, as well as the severable parts of rule 22, as being compliant with the Fair Work (Registered Organisations) Act 2009. However, the alteration to rule 22(d) was refused certification as it appeared to permit the rejection of membership applications without regard to the eligibility criteria specified in section 166(1) of the Act. This decision highlights the importance of ensuring that membership rules align with the statutory protections for eligible applicants.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

(a)	to be admitted as a member of the organisation; and
(b)	to remain a member so long as the person complies with the rules of the