TFGA Industrial Association
[2018] FWCD 6805
•16 NOVEMBER 2018
| [2018] FWCD 6805 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
TFGA Industrial Association
(R2018/176)
| MURRAY FURLONG | MELBOURNE, 16 NOVEMBER 2018 |
Alteration of other rules of organisation.
On 10 July 2018, the TFGA Industrial Association (TFGA) lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to the rules of the TFGA Industrial Association (the Rules).
The particulars set out alterations to rules 5, 6, 7, 8, 9, 12, 18, 22, 25, 27, 29, 30, 31, 32, 41 and 43 to, and the deletion of rule 28 of, the rules of the Rules.
The declaration of Ms Felicity Richards, President of the TFGA, filed with the notice of particulars provides that, in accordance with rule 42.0(a) of the Rules, the alterations were proposed by the Executive Committee on 3 May 2018. However, given that the alterations were transacted during the Annual General Meeting (AGM) held on 28 June 2018, the requirement that a proposal to alter the rules must be received by the Executive Officer at least sixty days before the date of the general meeting to which they are to be submitted pursuant to rule 42.0(a) could not have been met.
In her further declaration dated 26 September 2018, Ms Richards clarified that the proposal to alter the rules in the present matter was received by the Executive Officer prior to 21 March 2018 and that, on that date, the proposal was circulated to the members of the Executive Committee. Ms Richards further advised that on 3 May 2018, the Executive Committee considered the manner in which the proposal to alter the rules would be provided to the members for the purposes of the AGM of 28 June 2018.
On the information contained in the notice, and the further declaration of Ms Richards dated 26 September 2018, I am satisfied the alterations have been made under the rules of the organisation.
As noted above, the particulars set out an alteration to rule 8 of the Rules. As this provision constitutes an eligibility rule for the purposes of the Fair Work (Registered Organisations) Act 2009 (the Act), I lack the necessary jurisdictional basis to certify this particular alteration under s. 159 of the Act.
I am satisfied that the alteration to rule 8 is severable from the other alterations set out in the notice of particulars in light of the principles set out by the majority in ReFood Preservers’ Union of Australia (1998) 79 ALR 138.[1] In particular, I am satisfied that the further alterations operate independently of the alteration to rule 8 and that its severance will not affect their meaning and effect.
The notice of particulars originally filed on 10 July 2018 set out alterations to rules 30.4 and 41 of the Rules which were too imprecise to determine. Annexed to Ms Richards’ declaration of 26 September 2018 is a copy of the marked up version of the complete rulebook of the TFGA showing the alterations to be made which was provided to the members on 7 June 2018 together with the notice of the AGM held on 28 June 2018.
As this material formed part of the proposal to alter the rules in the present matter put before and approved by the members at the AGM of 28 June 2018, I am prepared to certify the alterations on this basis.
On 28 August 2018, Ms Richards gave consent, under subsection 159(2) of the Fair Work (Registered Organisations) Act 2009, 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 31.11 the word “the” has been inserted between the words “a proxy vote in” and “election of the President”.
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] Re Food Preservers Union of Australia (1988) 79 ALR 138, 145, Northrop and Ryan JJ.
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