The Association of Independent Schools of South Australia

[2023] FWCD 15

[2023] FWCD 15

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

The Association of Independent Schools of South Australia

(R2023/64)

CHRIS ENRIGHT MELBOURNE, 30 AUGUST 2023

Alteration of other rules of organisation.

1. On 6 July 2023 the Association of Independent Schools of South Australia (the Association), lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules. Further material in support of the application was lodged on 10 August 2023.

1. The Association seeks certification of the alterations under section 159 of the Fair Work (Registered Organisations) Act 2009 (the Act).

1. On the information contained in the notice and declaration, I am satisfied the alterations have been made under the rules of the organisation.

1. The particulars set out alterations to:

Rule 9 – Board Positions, Powers and Duties;

Rule 12 – Rotational Terms for Board Members;

Rule 13 – Elections: Appointment of Board, Office-Bearers and Executive Committee;

Rule 14 – Returning Officer; and

Rule 16 – Board Meetings.

1. The alterations to Rule 9 clarify the eligibility criteria associated with one of the Association’s offices. Currently, one of the offices which makes up the Association’s Board[1] is reserved for a “Bursar, Business Manager or Administrator”. Under proposed Rule 9, that office will be held by a “person who is who is employed by a Member with responsibilities which include the overall financial management of the Member”.

1. Triennial elections[2] for the Board are staggered. The offices that comprise the Board are divided into three groups.[3] Each year, elections for one group’s offices are held. The alterations to Rule 12 update the year in which the term concludes for each of the three groups. There are no changes to the terms of office.

1. The are several alterations to Rule 13, which relate to elections. The alterations:

·   reduce the timeframe in which the Returning Officer must call for nominations for officer bearer positions from 14 to 7 days;

·   insert a new sub-rule 13.4(b) specifying that nominations for office bearer positions may be called via electronic means;

·   insert a new sub-rule 13.4(c) setting out the remedial process in the event that a defective nomination is submitted by a candidate for one of the office bearer positions;

·   renumber subrules 13.4(d) – (f) accordingly;

·   amend subrule 13.5 to reflect the alterations to rule 9 stated above;

·   insert a new sub-rule 13.7 specifying that candidates cannot nominate for more than one Board position; and

·   insert a new sub-rule 13.8 specifying that office bearers shall be elected by and from elected and appointed Board members.

1. The Association advised[4] that the above alterations will assist with the scheduling of Board meetings in circumstances where there has historically been limited opportunity for meetings to be held between the date of the Annual General Meeting and the start of school holidays, as well as clarifying the timing of the first Board meeting. The alterations also provide the Returning Officer with clarity regarding how nominations may be called, what process to follow if a defective nomination is submitted by a candidate, the provision of election papers and confirm the electorate for office bearer positions.     

1. The alterations to Rule 14:

·   replace sub-rule 14.5 to set out the requirement that candidates for Board positions in rules 9.1.1 – 9.1.3 are to provide a candidate statement, and to specify the actions to be taken by the Returning Officer regarding nominations;

·   amend sub-rule 14.6.1 to revise nomination details for Board positions in rule 9.1.4, so that a CV, expression of interest and candidate photograph is no longer required, rather a candidate is to submit a statement together with an endorsement from an existing Board member;

·   amend sub-rule 14.6.2 to reflect the above alterations regarding nomination details, and reduce the number of days for replacement of a defective nomination, from 10 to 7 days; and

·   amend sub-rule 14.6.3 to specify the documents which the Returning Officer will print and send to the electorate.

1. The Association advised[5] that the purpose of the above alterations is to provide members of the electorate with supporting information on which to base their vote in the event a ballot is required, provide clarity to the Returning Officer regarding the actions to be taken in the event of a ballot, align nomination requirements with other Board positions and to ensure consistency with the arrangements for replacement of a defective nomination.

1. The alterations to Rule 16 change the quorum requirement from not less than 6 Board members to “a majority of the number of serving Board members”. This amendment is likely to reduce the risk of a quorum for Board meetings not being obtained.

2. In my opinion, the alterations comply with and are not contrary to the Act, the Fair Work Act 2009, modern awards and enterprise agreements, are not otherwise contrary to law and were made under the rules of the organisation. I certify accordingly under subsection 159(1) of the Act.

DELEGATE OF THE GENERAL MANAGER

[1] Subject decisions made by Members in a General Meeting, the management of the business and control of the Association is vested in the Board – see Rule 9.6.

[2] See Rule 11.1.

[3] See Rule 9.3.

[4] See Item 1 of Schedule A to the 20 June 2023 Declaration of AISSA Board Chair Brenton Howell.

[5] Ibid.

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