Shop, Distributive and Allied Employees Association-Queensland Branch

[2014] FWCD 1966

[2014] FWCD 1966

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Shop, Distributive and Allied Employees Association
(R2014/18)
MR ENRIGHT	MELBOURNE, 1 APRIL 2014
Alteration of other rules of organisation.

[1] On 7 February 2014 the Queensland Branch of the Shop, Distributive and Allied Employees Association (the Branch) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to the rules of the Queensland Branch of the Shop, Distributive and Allied Employees Association.

[2]        The particulars set out alterations to Rules 7, 10, 13, 13A and 15 of the rules of the

Branch.

[3] The alterations reduce the number of Vice-Presidents from two to one and delete the word ‘First’ from the title ‘First Assistant Secretary’. They also introduce additional qualifications on members’ eligibility to nominate for the offices of President, Secretary- Treasurer, Assistant Secretary and Vice-President.

[4] Following communication with staff of the Commission, on 21 March 2014 the Branch lodged a further declaration which clarified the meeting at which the abovementioned alterations were made.

[5] On 21 March 2014 the Branch lodged a second notice and declaration setting out the particulars of further alterations to its rules, made as a result of enquiries by staff of the Commission. These enquiries concerned the effect of further restricting members’ eligibility to nominate for the relevant offices prior to the 2014 scheduled election.

[6]        The second particulars set out alterations to Rule 9 and further alterations to Rule 15.

[7] These alterations remedy a remaining reference to two Vice-Presidents and ‘First Assistant Secretary’. They also insert transitional provisions delaying the operation of qualifications on members’ eligibility to nominate for offices.

Reduction in the number of Vice-Presidents

[8] The alterations to Rules 7 and 9 have the effect of abolishing one of the two offices of Vice-President. Both offices are currently filled. In the ordinary course they would expire upon election of their successors. Under the current rules of the Branch, nominations for the [2014] FWCD 1966

next scheduled election are due in May 2014 and a postal ballot of members, if required, will close in July 2014. Therefore, the certification of this alteration will truncate the term of one Vice-President by a matter of months.

[9] Provided it complies with the requirements of the legislation and its rules, an organisation has the right to mould its internal structures as it sees fit.1 Authorities suggest that an elected office may be abolished during the term of an incumbent provided the abolition is effected in accordance with the rules and is bona fide,2 and does not have an

oppressive, unreasonable or unjust effect on members or applicants for membership.3 In this

respect I refer to the decision of Delegate Nassios in Health Services Union,4 which states that

it has been the practice of this office to seek declarations from officers whose terms are abolished mid-term as to whether they understand the effect of the alterations and whether they support the alterations. In particular, Delegate Nassios states that such declarations play a key role in determining whether the truncation of a term of office is bona fide and whether or not it may be oppressive, unreasonable or unjust under s.142(1)(c) of the Fair Work

(Registered Organisations) Act 2009 (the RO Act).

[10] Although I am not bound by the views of Delegate Nassios, I agree that a declaration

by the relevant officer plays a key role in determining whether the truncation of the officer’s
term is bona fide.

[11] The Branch has lodged with the Commission a letter from the holder of the relevant

office, indicating that he consents to his position as Vice-President being abolished in line
with the rule alteration.

[12] In light of the correspondence received from the relevant officer I am satisfied that the truncation of the term of office is bona fide and has been effected in accordance with the rules of the organisation. In my view the abolition of one office of Vice-President will not have an oppressive, unreasonable or unjust effect on members or applicants for membership within the meaning of s142(1)(c) of the RO Act.

Deletion of the word ‘First’ from ‘First Assistant Secretary’

[13] Alterations to Rules 7, 9, 10, 13, 13A and 15 delete the word ‘First’ from the office of ‘First Assistant Secretary’. The alterations do not affect the powers and duties of the office. In my view, the abovementioned alterations merely change the name of the office and do not have the effect of abolishing the office of First Assistant Secretary.

Eligibility to nominate for offices on State Council

[14] The alterations to Rule 15(c) impose, first, a requirement that candidates for the offices of President, Secretary-Treasurer, Assistant Secretary and Vice-President have not less than 12 months’ continuous financial membership at the date nominations are called. Secondly, they impose a requirement that candidates for Secretary-Treasurer must have served at least six months on State Council and candidates for President must have served at least three months on State Council.

[15] Rule 15(o) of the current Branch rules requires candidates for office and persons appointed to State Council to have six months’ financial membership immediately preceding the date of opening nominations or appointment. Therefore, the alteration to rule 15(c)

[2014] FWCD 1966

requires an additional six months of continuous financial membership before a member is
eligible to nominate for the relevant offices.

[16] Whether a restriction on the right to nominate for office is considered oppressive will depend on the characteristics of the organisation in question.5 In Leveridge v Shop,

Distributive and Allied Employees Association the court noted that, with respect to higher

offices, ‘it cannot be said that an ‘apprenticeship’ of...two years’ continuous financial membership is an unreasonable condition upon the rights of members to stand for those offices.’6 As such, in my view the imposition of 12 months’ continuous financial membership before nominating for the relevant offices does not, in itself, offend s.142(1)(c) of the RO Act.

[17] However, In Riordan v Federated Clerks Union of Australia the Commonwealth Court of Conciliation and Arbitration held that the introduction of a qualification for office in the rules of an organisation may be oppressive ‘because it imposes an unreasonable condition upon membership inasmuch as it deprives...members of the capacity of standing for those elections under circumstances which it would be too late for them to remedy’.7 In this case,

nominations for offices on State Council, with the exception of Secretary-Treasurer, are due to open in May 2014. If the alterations were to take effect upon certification, the new rule may impose an oppressive, unreasonable, or unjust restriction on members rendered ineligible to nominate, as well as members who might have supported their candidature.

[18] After the Commission invited the Branch’s response to the concern that the alteration may offend the principle set out in Riordan, the Branch transacted a further alteration with the effect of inserting transitional provisions in Rule 15(c). The first provides that the requirement of 12 months’ financial membership will not take effect until the expiration of six months from certification of the sub-rule. This will prevent the alteration from rendering ineligible members who would otherwise have been eligible to nominate for office in forthcoming elections. The second states that the requirement of three months’ membership on State Council will not apply until three months from the assumption of office of all candidates at the 2014 ordinary election. These further alterations were lodged on 21 March 2014, accompanied by a notice setting out the steps taken to transact them.

[19] The insertion of the transitional provisions has satisfied my concerns and consequently in my view the alterations to Rule 15(c) are capable of certification.

[20] On the information contained in the notices, I am satisfied that both the alterations

lodged on 7 February 2014 and the subsequent alterations lodged on 21 March 2014 have
been made under the rules of the organisation.
[2014] FWCD 1966

[21] In my opinion, 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

1 Imlach v Daley [1985] FCA 13; (1983) 7 FCR 457.

2 Majority in Saint v Australian Postal and Telecommunications Union and Others (1976) 30 FLR 393.

3 Roughan v Australasian Meat Industry Employees’ Union (1992) 36 FCR 536.

4 [2010] FWAD 3897.

5 Lovell v Federated Liquor and Allied Industries Employees' Union of Australia [1978] FCA 43; (1978) 35 FLR 72.

6 (1977) 31 FLR 385, 403.

7 (1952) 74 CAR 5, 6.

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