Shop, Distributive and Allied Employees Association-Western Australian Branch

[2016] FWCD 573

[2016] FWCD 573

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Shop, Distributive and Allied Employees Association
(R2015/255)
MR ENRIGHT	MELBOURNE, 2 FEBRUARY 2016
Alteration of other rules of organisation.

[1]        On 23 November 2015 the Shop, Distributive and Allied Employees Association-

Western Australian Branch (the Branch) lodged with the Fair Work Commission

(the Commission) a notice and declaration setting out particulars of alterations to the rules of

the Branch.

[2]        The particulars set out alterations to rule 22 of the rules of the Branch. The alterations

enable the Branch Secretary to establish facilities to allow an applicant eligible for

membership to make their application electronically. Under the current rules of the

organisation, an applicant is required to attend the Branch in person to lodge their

membership application.

[3]        A question arises as to whether the rule alteration process was complied with when

transacting the alterations. Rule 30 states, in part, ‘These Rules may be altered, replaced or

varied by other Rules by decision of the Committee of Management at an ordinary

meeting…’. The declaration by Mr Peter O‘Keeffe, Branch Secretary, states that the rule

alterations were transacted at a ‘special meeting’ of the Committee of Management on

10 November 2015. Members of the Committee of Management were informed of the

proposed rule alterations on 10 August 2015, some three months prior to the 10 November

2015 and were provided with notice of the special meeting on 3 November 2015.

[4]        Inquiries made by Commission staff on 22 and 27 January 2016 sought to clarify the

nature of the Committee of Management meeting on 10 November 2015. From the

information provided to the Commission, it is clear that the 10 November 2015 meeting was

not an ‘ordinary meeting’ of the Committee of Management but a meeting convened at a

convenient time and location for the specific purpose of considering the proposed rule

alteration. This does not appear to comply with rule 30 of the organisation in that it was not

an ordinary meeting of the Committee. In accordance with the Fair Work (Registered

Organisation) Act 2009, I am required to be satisfied that the alterations have been made

under the rules of the organisation.

[5]        As discussed in Master Builders’ Construction and Housing Association of the

1

Australian Capital Territory, the relevant question to be asked is whether it is intended that

non-compliance would result in invalidity. Drawing from Project Blue Sky v Australian
[2016] FWCD 573

2

Broadcasting Authority and the application of its principles to the rules of an Association (a

registered organisation under the former Workplace Relations Act 1996) in Re: Australian

3

Principals Federation, the issue is not whether an instance of non-compliance has occurred

(and as an inevitable consequence the decision to alter the rules is invalidated). The issue is

whether an act which does not comply strictly with the rules has no effect. To determine this,

regard must be had to the language, scope and object of the relevant provisions.

[6]        Applying this reasoning to the facts before me, the language of rule 30 of the

organisation provides for the decision of the Committee of Management to be made at an

ordinary meeting, or by postal vote in circumstances where the Branch President or Secretary

is satisfied the alteration is urgent. However, the object of rule 30 is that rules must be altered

by a decision of the Committee of Management, provided that adequate notice has been given

to the members of the Committee of the proposed alterations. In my view, a decision by the

Committee of Management at a meeting which is not an ordinary meeting, where the

Committee received notice of the proposed rule alterations three months prior and was given

adequate notice of the meeting itself, does not invalidate the decision.

[7]        Accordingly, on the information contained in the notice, I am satisfied the alterations

have been made under the rules of the organisation.

[8]        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

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1

[2013] FWCD 3600

2

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

3

Appeal by the Australian Education Union against the decision of Vice-President Ross of 27 January 2006; Lawler VP,

Kaufman SDP, Smith C; 26 September 2006; PR973525.