Shop, Distributive and Allied Employees Association-Queensland Branch
[2016] FWCD 1939
•20 April 2016
[2016] FWCD 1939
DECISION
| Fair Work (Registered Organisations) Act 2009 | |
| s.159—Alteration of other rules of organisation | |
| Shop, Distributive and Allied Employees Association | |
| (R2016/23) | |
| MR ENRIGHT | MELBOURNE, 20 APRIL 2016 |
| Alteration of other rules of organisation. |
[1] On 23 February 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 to the rules of the Branch.
[2] The particulars set out alterations to Rules 6, 7, 13, 15, 17, 20, 22, 28 and 37 of the
| Branch. | |
| [3] | The proposed alterations to rule 15, among other things, extend the office of |
Secretary-Treasurer by one year in order to synchronise the scheduled elections with those of
the other members of the State Council pursuant to sections 145(2) and (3) of the Fair Work
(Registered Organisations) Act 2009 (the Act); provide that the office of Assistant Secretary
shall be subject to election in May 2016 for a term of two years, and shall, on and from the
elections in May 2018 hold office for four years; and introduce a new qualification for office
for the position of Assistant Secretary, that being that the candidate must have served at least
3 months as a member of State Council at the date when nominations have been called.
[4] Other alterations include changes to rule 20 which provide that representatives to other
bodies, committees or forums shall be selected when necessary and that any out-of-pocket
expenses shall be determined by State Council or Committee of Management. The alterations
also delete rule 17 which provides for the appointment of a district steward and introduce
changes to rule 22 including the requirement that all applicants for membership be ‘subject to
the approval of State Council or Committee of Management’ with these bodies reserving the
right to reject any applicant for membership. Further to this, proposed rule 22 alters the
wording of the requirement that applicants should be informed in writing of their obligations
of membership and requirements should they wish to resign their membership.
[5] Proposed alterations to rule 28 increase the number of meetings required to be held by
the Branch from three to four per annum; one of which must be an Annual General Meeting
held in Brisbane and the other three ‘report back meetings’ which shall be conducted in major
shopping centres and at which only reports and general business shall be considered.
[6] Further alterations clarify that the word ‘Award’ is deemed to encompass Enterprise
Agreement or any other valid instrument (rule 37). Other changes modernise certain
[2016] FWCD 1939
procedures relating to approval of payments and payments by electronic transfer (rules 13 and
22). The proposed alterations also remove redundant and outdated references and provide for
gender neutral language.
[7] Upon receipt of the application, staff of the Regulatory Compliance Branch (RCB) of
the Fair Work Commission (the Commission) identified proposed alterations that appeared to
contravene provisions of the Act.
[8] On 24 and 29 March 2016, staff of the RCB outlined potential concerns about some of
the proposed alterations with the Branch’s solicitor. Some of the alterations affect the conduct
of the elections due to commence in May 2016. The Branch’s solicitor therefore advised that
it was the preference of the Branch for the Delegate to certify those parts of the rule
alterations that are clearly capable of certification to proceed and to sever the alterations that
are not.
[9] On 1 April 2015, the Branch Secretary, Mr Chris Gazenbeek spoke to staff at the RCB
and advised that the Branch would be seeking to withdraw the alteration to sub rule 15(c).
Discussions were also had regarding proposed alterations to existing rules 15(p) and 15(q).
[10] On the same date the RCB received a letter from Mr Gazenbeek which advised that,
prior to lodgement, due to a miscommunication within the Branch, proposed rule 15(c)(ii)
was not deleted. Mr Gazenbeek requested that the amendment to the alteration to 15(c)(ii) be
severed from the application.
[11] 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 any impugned alterations are severable from the remainder of the alterations.
Proposed alterations to rule 15(a)
[12] As outlined above, the proposed alterations to sub rule 15(a) among other things
extend the office of Secretary-Treasurer for one year until the next ordinary elections due in
May 2018 pursuant to section 145(2) and (3) of the Act.
[13] Sections 145(2) provides:
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.
[14] Section 145(3) provides:
The term of an office must not be extended under subsection (2) so that the term
exceeds 5 years.
[15] The precursor of section 145 was s.199 of the now defunct Industrial Relations Act
1989 (Cth). Section 199(3) of this Act permitted the rules of an organisation or branch to
provide for the extension of terms of office for the purposes of bringing dates of elections,
1
including branch elections, into alignment.
[2016] FWCD 1939
[16] There is a prima facie principle of construction that amendments do not apply to past
or uncompleted matters unless the amended rules expressly or impliedly provide that the
2
| alterations in their amended form are intended to apply to past matters or events. | In |
general, when alterations to terms of office are made they are presumed to affect future, as
opposed to current terms. A further consideration is whether such changes can impose
oppressive, unreasonable or unjust conditions upon members. For example, in Beeson v
3
| Blayney, | a change to a term of office from 3 to 6 years was held to be unreasonable because |
members who had voted for a candidate to hold office for three years may not have been
inclined to vote for the same person to hold office for double that period.
[17] However, in my opinion the presumption against retrospectively can be rebutted in
this matter for two reasons. First, the Act specifically allows the existing term to be changed
for the purposes of bringing dates of elections into alignment. Second, as outlined in Beeson,
a presumption against retrospectively can be rebutted if the words of a proposed rule
explicitly provide that the rule is intended to apply retrospectively. In this case, proposed sub
rule 15(a) clearly provides that the current term of office of the Secretary-Treasurer is to be
extended for one year until the next ordinary election due in May 2018 and that this extension
is pursuant to sub sections 145(2) and (3) of the Act.
[18] In my view the changes do not impose oppressive, unreasonable or unjust conditions
on members within the meaning of sub section 142(1)(c) or in the manner contemplated by
Joske J in Beeson. Here the alteration increases the term by one year, from four to five years,
as opposed to doubling the term of office, as was the case in Beeson. Moreover it does so for
the purpose of encouraging efficient management within the Branch as contemplated under
s.5 of the Act and is a form of term of office extension explicitly contemplated under s. 145(2)
of the Act.
[19] I am consequently satisfied that the the proposed alterations to sub rule 15(a) conform
with the Act.
Proposed alterations to rule 15(c)
[20] As outlined above, the alterations to rule 15 include, among other things, a new
requirement that candidates for the office of Assistant Secretary must have had at least 3
months as a member of State Council at the date when nominations are called.
[21] I note that the Branch has advised that this alteration was transacted in error, and
requests that the alterations to sub rule 15(c) be withdrawn from the remainder of the
alterations. I consider this request further below.
Proposed alterations to sub rule 15(p) and 15(q)
[22] As noted above staff of the RCB expressed concern to the Branch that the proposed
alterations to sub rule 15(p) and 15(q) touch a number of sub rules that are themselves
potentially contrary to s.142(1)(d) of the Act.
[23] Section 142(1)(d) provides that the rules of an organisation
[2016] FWCD 1939
(d) must not discriminate between applicants for membership, or members, of the
organisation on the basis of race, colour, sex, sexual preference, age, physical or mental
disability, marital status, family responsibility, pregnancy, religion, political opinion,
national extraction or social origin.
[24] Current sub rule 15(p) reads:
A person shall not be eligible to be a candidate for any office in the Branch if there is
reasonable grounds for believing that:-
(i) Within twelve months prior to the date of his nomination he was a member
of any body 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
(ii) He himself advocates or 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 civilized country or of organised government.
[25] Current sub rule 15(q) reads:
A person shall not be eligible to hold or continue to hold office in the Branch if there is
reasonable grounds for believing that:-
(i) 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 other civilized country or of organised
government.
(ii) 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 civilized country or of organised government.
[26] The proposed changes to rules 15(p) read as follows:
(i) Within twelve months prior to the date of the person’s nomination that
person 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 of violence of the established government of the
Commonwealth or of a State or of any other civilised country or of organised
government; or
(ii) The person advocates or encourages or has within twelve months prior to
the date of the person’s 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 civilized country or of organised government.
[2016] FWCD 1939
[27] The proposed changes to rules 15(q) read as follows:
(i) The person is a member of any body of persons incorporated, 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
(ii) The person advocates or encourages, or has within twelve months prior to
the date of the person’s 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.
[28] In my view, the rules as altered are contrary to s. 142(1)(d) of the Act. It is clear to
my mind that the existing and proposed rules are concerned with discrimination on the basis
of political opinion.
[29] I have reached this conclusion notwithstanding that proposed sub rules 15(p) and
15(q) by and large reflect the wording of the original sub rules. My conclusion is based on
the fact that the current sub rules were drafted and certified under a different statutory regime.
In order to explain my reasoning, it is necessary for me to provide the historical context.
[30] The Conciliation and Arbitration Act 1904 is the antepenultimate precursor to the Act
4
| and the Fair Work Act. | The Conciliation and Arbitration Act 1904 was amended by the |
Conciliation and Arbitration Act 1952 (the Conciliation and Arbitration Act 1904–1952) to
5
| introduce a number of amendments. Section 83A | dealt with the entitlement to become and |
remain a member of a registered organisation. Section 83A provided:
(1.) A person employed in connexion with an industry, or engaged in an industrial
pursuit, is, unless he is of general bad character, entitled, subject to payment of any
amount properly payable in respect of membership, to be admitted as a member of an
organization (being an organization of employees in or in connexion with that industry
or of employees engaged in that industrial pursuit) and to remain a member so long as
he complies with the rules of the organization.
…
(4.) Nothing in this section applies to a person as to whom there is reasonable ground
for believing that–
(a) he is a member of an unlawful association within the meaning of sub-section (1.) of
section thirty A of the Crimes Act 1914-1950; or
(b) he advocates or encourages, or has, within one year immediately before seeking to
become a member of the industrial organization, advocated or encouraged, any of the
matters referred to in that sub-section.
[31] The relevant (now defunct) Section 30A of the Crimes Act 1914–1950 (the Crimes
Act) provided as follows:
(1) the following are hereby declared to be unlawful associations, namely:-
[2016] FWCD 1939
(a) Any body of person, incorporated or unincorporated, which by its constitution or
propaganda or otherwise advocates or encourages–
(i) the overthrow of the Constitution of the Commonwealth by revolution or sabotage;
(ii) the overthrow by force of violence of the established government of the
Commonwealth or of a State or of any other civilized country or of organized
government; or
(iii) the destruction or injury of property of the Commonwealth or of property used in
trade or commerce with other countries or among the States,
Or which is, or purports to be, affiliated with any organization which advocates or
encourages any of the doctrines or practices specified in this paragraph;
(b) Any body of persons, incorporated or unincorporated, which by its constitution or
propaganda or otherwise advocates or encourages the doing of any act having or
purporting to have as an object the carrying out of a seditious intention as defined in
section twenty-four A. of this Act.
[32] This section is now repealed.
[33] The Conciliation and Arbitration Act 1904 was repealed in 1988. The replacement
Industrial Relations Act 1988 contained no equivalent provision to that provided under s. 83A
(later s.144(4)) of the former Act. Consequently, an applicant’s entitlement to membership
was no longer prejudiced by membership of an ‘unlawful association’ as defined under
section 30A of the Crimes Act.
[34] On 12 May 2002, the Workplace Relations Amendment (Registration and
Accountability of Organisations) Act 2002 introduced Schedule 1A of the Workplace
Relations Act 1996. One aspect of the amendments was the introduction of s.142(1)(d) of
Schedule 1A (now s.142(1)(d) of the Act).
[35] At this time, a number of registered organisations had rules which contained
provisions which replicated the content of s.83A(1). Prior to 25 November 2010, Fair Work
Australia (now the Fair Work Commission) and its predecessors appeared to be of the view
that s.30A of the Crimes Act provided legislative sanction for discrimination on the basis of
political opinion if an affected applicant or member was part of a body fitting the description
of an unlawful association.
[36] However on 25 November 2010, the National Security Legislation Amendment Act
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| 2010 repealed s.30A. | The Explanatory Memorandum of the National Security Legislation |
Amendment Bill 2010 advised:
This item will repeal sections 30A to 30H and 30R of Part IIA of the Crimes Act, most
of which relate to unlawful associations. These provisions are no longer relevant in
the current security environment, and offences within the Criminal Code relating to
terrorist organisations adequately address associating with a terrorist organisation.
This implements recommendations of both the ALRC [the Australian Law Reform
[2016] FWCD 1939Commission] and the 1991 Committee of Review of Commonwealth Criminal Law
7
(Gibbs Committee).
[37] The Explanatory Memorandum cited an Australian Law Reform Commission 2006
8
| Report | A Review of Sedition Laws in Australia. The ALRC found that: |
| The unlawful associations provisions arose in the context of government concern | |
| about radical trade unionism and revolutionary politics. Following the Australia-wide | |
| strike by the seamen’s union in 1925, the Bruce-Page Government sought to introduce | |
| a number of legislative measures designed to regulate trade unions and their leaders in |
9
Australia.
[38] The Report continued:
The ALRC concludes that the unlawful associations provisions are unnecessary and
should be repealed….Repeal of the unlawful associations provisions will not leave a
gap in federal criminal law. Both the definition of a ‘terrorist act’ and a ‘terrorist
organisation’ under the Criminal Code are sufficiently broad to cover the types of
organisations that advocate or urge politically motivated violence….the terrorist
organisations provisions are a more modern and appropriate way to deal with
organisations that advocate politically motivated violence, rather that the outdated
10
definitions found under Part IIA.
[39] I note that the offence of ‘Urging the overthrow of the Constitution or Government by
force or violence’ is currently included in the Criminal Code Act 1995. Section 80.2 provides
that:
(1) A person (the first person) commits an offence if:
(a) the first person intentionally urges another person to overthrow by force or
violence:
(i) the Constitution;
(ii) the Government of the Commonwealth, of a State or of a Territory; or
(iii) the lawful authority of the Government of the Commonwealth; and
(b) the first person does so intending that force or violence will occur.
[40] In my view this is distinguishable from the wording of sub rules 15(p) and 15(q)
which provide that a person is ineligible for membership if they advocate or encourage the
overthrow by force or violence of the established government of the Commonwealth or of a
State or of any other civilized country or of organised government.
[41] In my opinion, the repeal of s.30A of the Crimes Act invalidates any endorsement for
reading down s.142(1)(d) of the Act to exclude discrimination on the basis of political opinion
if the member or applicant for membership may be described as a member of an unlawful
association within the meaning of s.30A. Consequently, I am unable to certify the alterations
to sub rules 15(p) and 15(q).
[2016] FWCD 1939
[42] I note that both sub rules 15(p) and 15(q) in their current form potentially offend
against s.142(1)(d). It is my recommendation to the organisation that it transact further rule
alterations so as to delete the impugned sub rules. In the alternative, I am prepared to accept
submissions from the branch as to why the sub rules are not contrary to the Act and
consequently should be retained.
Alterations to rule 22
[43] Current rule 22 among other things specifies that the branch must inform applicants
for membership, in writing, of the financial obligations arising from membership; and the
circumstances, and the manner in which a member may resign from the Association. The
current rule replicates exactly the language of section 141(1)(d) of the Act which provides
that the rules of an organisation:
(d) must require the organisation to inform applicants for membership, in writing, of:
(i) the financial obligations arising from membership (ii) the circumstances, and the manner, in which a member may resign from the organisation.
[44] However proposed sub rule 15(e) alters the wording so that the rule reads:
(e) Successful applicants for membership shall be informed in writing of their obligations of membership and requirements should they wish to resign from
membership. [italics my emphasis].
[45] The proposed sub rule limits the provision of required information to successful
applicants.
[46] On 18 April 2016 staff at the RCB spoke to Mr Gazenbeek and inquired about the
intention of the proposed sub rule.
[47] Mr Gazenbeek responded as follows:
The word ‘successful’ needs to be read in conjunction with the right of State Council
to reject a membership application. Should the State Council not reject, then the
applicant has been ‘successful’. Hence the meaning and application of the word
‘successful’.
…the proposed changes have a logical flow and it is our view we wouldn’t need to
advise a rejected member of their financial obligations arising from membership, or
the circumstances and the manner in which a member may resign from the
11
Association.
[48] In my opinion, however, the intent of the legislature is clear. An earlier version of sub
12
| rule 141(1)(d) was first introduced in the Industrial Relations Bill 1999 (Cth). | The |
| Explanatory Memorandum for the Bill provided that: |
[2016] FWCD 1939
Paragraph (1)(d) is a new requirement that obliges organisations to give applicants for
membership written advice about their financial obligations as members, as well as
13
how and in what circumstances they may resign.
[49] The obligation to inform members clearly applies to all applications, as opposed to
only successful ones.
[50] In my opinion the alteration as transacted is contrary to s. 141(1)(d) of the Act.
Consequently I am unable to certify proposed sub rule 22(e).
Proposed alterations to rule 28
[51] The proposed alterations to rule 28 among other things provide for a number of ‘report
back meetings’, the business conducted at which shall be Reports and General Business only.
I note that the proposed rules provide that ‘there shall be no quorum required at report back
meetings’.
[52] While there is no requirement in the Act that an organisation includes a provision for
quorum in its rules, it is nevertheless a common provision since, in the absence of a quorum
rule, a meeting of the whole of the membership would be necessary in order to pass any
14
| resolution. | In some circumstances, the absence of a quorum can pose such difficulties for |
the organisation as to be likely to impose conditions or restrictions upon members that are
oppressive, unreasonable or unjust (see paragraph 142(1)(c) of the Act).
[53] The lack of quorum would be a cause for concern if members were prevented from
making decisions and transacting business. However the nature of the ‘report back meetings’
is such that no resolutions or business shall be made or transacted; the meetings anticipate
reports and general business only. Members have the opportunity to determine matters and
transact business at the Annual General Meeting.
[54] Consequently, I find that the proposed alterations are not contrary to the Act,
specifically s.142(1)(c). I am therefore able to certify the alterations to rule 28. Nonetheless, it
seems to me that the intention was to allow the meeting irrespective of the number of
attendees. As a meeting may take place so long as there are two attendees, I suggest the
Branch clarify its intention by transacting further rule alterations to Rule 28 to provide, for
instance, that the quorum be two.
Severability
[55] I now consider whether the alterations that are not certifiable are severable from the
remainder of the alterations.
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| [56] | 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.
[57] It is my opinion that the removal of amendments to sub rules 15(c), 15(p) and 15(q)
would have no effect on the meaning of the remainder of the proposed alterations, both in
general and those specific to rule 15. These include the alterations to sub rules 6(f), 7(h),
[2016] FWCD 1939
13(c), 15(a), 15(b), 15(f), 15(h), 15(m), 15(o), rules 20, 22, 28, 37 and the deletion of rule 17.
Consequently, the amendments to sub rules 15(c), 15(p) and 15(q) are severable from the
remainder of the rules contained in the notice of particulars, including the other alterations to
rule 15.
[58] The alterations to rule 22 are in my opinion severable from the remainder of the
proposed alterations. However, I am unable to sever sub rule 22(e) from the remainder of the
alterations to rule 22 as the resulting rule would omit a requirement of the Act, that being the
requirement to give applicants for membership written advice about their financial obligations
as members, as well as how and in what circumstances they may resign.
[59] In my opinion, with the exception of amendments to sub rules 15(c), 15(p), 15(q) and
rule 22 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
<Price code A, PR578433>
8
Australian Law Reform Commission Fighting Words – Report, A Review of Sedition Laws in Australia, Report 104, July
2006.
9
Australian Law Reform Commission Fighting Words – Report, A Review of Sedition Laws in Australia, Report 104, July
2006, para. 4.10.
10
Australian Law Reform Commission Fighting Words – Report, A Review of Sedition Laws in Australia, Report 104, July
2006, para. 4.50, 4.52.
11
Email correspondence from Mr Chis Gazenbeek, 19 April 2016.
12
Section 195(1)(d) of the Industrial Relations Act 1989 (Cth).
13
Explanatory Memorandum of the Industrial Relations Bill 1988, clause 199(3).
14
See The Restaurant and Catering Association of Victoria [2012] FWAD 10233 in which Delegate Carruthers cites
Maddern J in Re: Qantas Supervisors and Salaried Staff Association [1985] 2 IR 348 at p. 349.
15
See Screen Producers Association of Australia [2014] FWCD 1821 at paras [81] – [82].
1
Explanatory Memorandum of the Industrial Relations Bill 1988, clause 199(3).
2
See Beeson v Blayney and Others [1965] 8 FLR 292, 294 ( per Joske J).
3
Beeson v Blayney and Others [1965] 8 FLR 292
4
The Conciliation and Arbitration Act 1904 was repealed and superseded by the Industrial Relations Act 1988.
5
Section 83A later became section 144(4) of the Conciliation and Arbitration Act 1904 (Cth).
6
Item 3 of Part 1 of Schedule 1 of the National Security Legislation Amendment Act 2010(Cth).
7
Explanatory Memorandum for the National Security Legislation Amendment Bill (Cth), Item 3.
0