Textile, Clothing and Footwear Union of Australia

[2015] FWCD 1081

[2015] FWCD 1081

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Textile, Clothing and Footwear Union of Australia
(R2015/11)
MR ENRIGHT	MELBOURNE, 20 FEBRUARY 2015
Alteration of other rules of organisation.

[1]        On 27 January 2015 the Textile, Clothing and Footwear Union of Australia (the

organisation) lodged with the Fair Work Commission (the Commission) a notice and

declaration setting out particulars of alterations to its rules.

[2]        The particulars set out alterations to Rules 19, 23, 25, 29, 30, 37, 42, 42A, 45, 56, and

83. The alterations seek to abolish the Western Australian Branch and transfer the assets,

debts and membership into the existing Victorian Queensland Branch which is subsequently

renamed the Victorian Queensland Western Australian Branch. The alterations also abolish

the office of National Junior Vice-President.

[3]        The particulars indicate that the organisation attempted to alter the table of contents to

the rulebook to reflect the changes outlined above. The table of contents which appears in the

organisation’s rulebook is maintained by the staff of the Commission and does not form part

of the certified rules of the organisation. It is an aid to assist organisations and members of

organisations. Any changes to it resulting from certification of alterations to the rules are

undertaken by administrative action of the staff of the Commission.

The Victorian Queensland Western Australian Branch

[4]        It is settled law that an organisation has the right to structure itself as it sees fit by

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choosing to establish, restructure or abolish branches; these branches having no independent

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legal personality separate from the organisation as a whole. An organisation is not required

to have branches under the legislation; however having established branches an organisation

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must comply with its own rules when seeking to abolish or alter them. The rules of the

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organisation require that the branches in question must consent to the alterations being made,

which was provided by the committees of management for the Western Australian and

Victorian Queensland Branches on 9 December and 12 December 2014, respectively.
[2015] FWCD 1081

[5]        A rule alteration that impacts upon the democratic control and functioning of an

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organisation or branch should be a bona fide decision of the organisation. In this case there

appears to be no suggestion that the decision has been made for any other reason than to

increase the efficient management of the organisation. The Western Australian Branch has

dwindling numbers with, according to the last lodged financial return, fewer than 30 members

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and multiple years of financial losses. As such I believe that the abolition of the Western

Australian Branch and its merger with the Victorian Queensland Branch (subsequently the

Victorian Queensland Western Australian Branch) is not oppressive, unreasonable or unjust

and has been undertaken as a bona fide decision of the organisation.

[6]        The inevitable consequence of abolishing the Western Australian Branch of the

organisation is that the officers who are currently from the Western Australian Branch will be

removed from office. Under the rules of the organisation the terms of office within the

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Western Australian Branch are four years. Branch elections are currently overdue and, while

the rules allow a person to remain in office until a successor is elected, the terms of office in

question have nominally expired. As previously discussed, the Western Australian committee

of management has provided their consent and, as such, I believe that truncation of office is

not a concern in relation to the offices from the Western Australian Branch.

[7]        As part of the merger of the existing Victorian Queensland Branch and the Western

Australian Branch, existing offices have been renamed to reflect the change of name to the

branch and a new office, the office of ‘Committee Member (Victorian Queensland Western

Australian Branch) - Western Australia’ has been created. The transitional provisions within

the proposed rules place the existing Western Australian Branch Secretary into this office for

an interim period until an election is held. I note that the new rules require a returning officer

for this office to be appointed no later than 1 June 2015. The rules also provide that the

inaugural term of the new office will be synchronised so that it expires with the existing

committee members.

The National Junior Vice-President

[8]        The rule alterations seek to abolish the office of National Junior Vice-President. As

with the offices in the Branches the rules of the organisation provide that the term is a period

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of four years. I note that the last election in the office was held in 2011. Currently the

organisation has prescribed information lodged with the Commission requesting that the

General Manager or her Delegate arrange for the conduct of an election by the AEC which

includes the office of National Junior Vice-President. As such, I am satisfied the office of

National Junior Vice-President has, or shortly will, nominally expire and that the issue of

truncation does not arise.

[9]        I am satisfied that the abolition of the Western Australian offices and the office of

National Junior Vice-President, the creation of the new office and the temporary acting

appointment of the existing Western Australian Branch Secretary are not oppressive,

unreasonable or unjust and are a bona fide decision of the organisation. As a result, none of
[2015] FWCD 1081

these changes impose conditions, obligations or restrictions of the requisite type that would

cause the rule to be contrary to section 143(c) of the Fair Work (Registered Organisations)

Act 2009 (the RO Act). However I do note that the organisation will need to lodge amended

prescribed information implementing the abolition of the office of National Junior Vice-

President.

Alterations made under the Rules of the Organisation

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

transacting the alterations. Rule 36(a)(iii) provides that the National Council may meet by

telephone where ‘the National Executive resolves that the matter be submitted to the National

Council for a decision by a meeting of members of such National Council conducted by such

telephone or electronic means as may from time to time be available’.

[11]      The declaration by Ms Michele O’Neil, National Secretary, states that the National

Council resolved ‘that the matter be submitted to the National Council for a decision by a

meeting of members of such National Council conducted by telephone pursuant to Rule

36(a)(iii)’. As the power to convene a telephone meeting of the National Council between

meetings is reserved for the National Executive one of the rules associated with the

organisation’s rule altering procedure has not been complied with. In accordance with the Act,

I am required to be satisfied that the alterations have been made under the rules of the

organisation.

[12]      As discussed in Master Builders' Construction and Housing Association of the

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

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non compliance would result in invalidity. Drawing from Project Blue Sky and the

application of its principles to the rules of an Association in Re: Australian Principals

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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.

[13]      Applying this reasoning to the facts before me, the object of rule 36(a)(iii) of the

organisation rules is to ensure that the rule altering body, in this case the National Council,

has the ability to make decisions between its normally scheduled annual meetings under the

rules. Additionally the rule allows the National Council to meet by telephone, a manner not

normally open to it. Consistent with the idea that the National Council must meet in person,

the rule limits the ability to call an out of session telephone meeting to the National Executive

and provides a means by which members of the National Council may override the National

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Executive’s decision and summon its own special meeting in person.

[14]      On the basis of the material before me, the National Council passed the resolution

under Rule 36(a)(iii) to both summon the meeting and authorise that it be done by telephone.

However, the National Council includes the National Secretary and President, who are able to
[2015] FWCD 1081

convene meetings of the National Council, and every person who is a member of the National

Executive, a body which is expressly empowered to authorise a telephone meeting under Rule

36(a)(iii). Further, the National Council, as the supreme governing body of the organisation,

could at any time resolve that the matter instead go to a face to face meeting. In my view, the

fact that a more representative governing body, inclusive of the National Executive, resolved

to call the telephone meeting is procedural and does not invalidate the decision of the National

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Council to alter the rules.

[15]      Therefore on the information contained in the notice, I am satisfied the alterations

have been made under the rules of the organisation. However, I draw to the attention of the

organisation that its rules do not expressly provide for the National Council to summon its

own meeting or to hold it by telephone. It is incumbent on the organisation to ensure that the

National Council’s meetings are properly convened in the future. Therefore, should the

organisation wish to guarantee that its National Council is able to meet by telephone on its

own motion it should consider further rule alterations that expressly provide for such.

[16]      On 13 February 2015, the Commission received consent under subsection 159(2) of

the RO Act from Michele O’Neil, National Secretary, for the Delegate to make various

amendments to the alterations for the purpose of correcting typographical, clerical or formal

errors. Accordingly the following corrections have been made:

	In proposed rule 42A(b) a second bracket was inserted after ‘Rule 42A(f)’; and
	In proposed rule 56(a) the phrase ‘holders for the time being of the following officers’
was replaced with the words ‘holders for the time being of the following offices’.

[17]      In my opinion, the alterations comply with and are not contrary to the RO Act, 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, PR561053>

1

Imlach v Daley (1985) 7 FCR 457 at 462.

2

Williams v Hursey (1959) HCA 51 at 54-55.

3

Imlach v Daley (1985) 7 FCR 457 at 463.

4

TCFUA Rule 19(b).

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See for instance Saint v Australian Postal and Telecommunications Union and Others (1976) 13 ALR 649 and Imlach v

Daley (1985) at 464.

6

FR2013/421.

7

TCFUA Rule 42(a).

8

TCFUA Rule 30(a)(iii).

9

[2013] FWCD 3600.

10

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28.

11

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.

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TCFUA Rule 36(a)(iv)(b).

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TCFUA Rule 23(c).