The Association of Professional Engineers, Scientists and Managers, Australia

[2017] FWCD 4034

[2017] FWCD 4034

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

The Association of Professional Engineers, Scientists and Managers, Australia

(R2017/148)

MURRAY FURLONG MELBOURNE, 10 NovemBER 2017

Alteration of other rules of organisation.

1. On 6 July 2017 The Association of Professional Engineers, Scientists and Managers Australia (APESMA), lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to its rules.

1. The particulars set out alterations to Federal Rules 5, 6A, 16, 17, 21 and 29, Division Rules 1, 10, 12 and 14, and Supplementary Rules - Professional Engineers Division 1 and 14.

1. Subsection 159(1) of the Fair Work (Registered Organisations) Act 2009 (the Act) provides that an alteration of the rules does not take effect until I have certified, that in my opinion, the alteration:

   (a) complies with and is not contrary to, this Act, the Fair Work Act, modern awards and enterprise agreements; and

   (b) is not otherwise contrary to law; and

   (c) has been made under the rules of the organisation.

1. On the information contained in the notice, I am satisfied that the alterations were made in accordance with the rules of the organisation.

1. I am also satisfied that the alterations comply with and are not contrary to modern awards and enterprise agreements.

1. However questions arise about whether the alterations comply with and are contrary to the Act, in particular section 142.

1. Subsection 142(1) of the Act states:

   (1) The rules of an organisation:

   (a) must not be contrary to, or fail to make a provision required by this Act, the Fair Work Act, a modern award or an enterprise agreement, or otherwise be contrary to law; and

…

(c) must not impose on applicants for membership, or members, of the organisation, conditions, obligations or restrictions that, having regard to Parliament’s intention in enacting this Act (see section 5) and the objects of this Act and the Fair Work Act, are oppressive, unreasonable or unjust; and

(d) must not discriminate between applicants for membership, or members, of the organisation on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin. (my emphasis)

Background

1. The alteration to Federal Rule 5 establishes the powers and functions of the APESMA Group Lending Facility, to satisfy financial institutions.

1. The alterations to Federal Rule 16 change the composition of the Committee of Management and representation on the National Assembly. Inter alia, the office on National Assembly reserved for women has been renamed “Diversity National Assembly Member”.

1. The alterations to Division Rules 10 and 12 clarify that the Annual General Meeting for Division and Sub-Division Committees is a specified meeting of these committees and provide that meetings shall be held at least twice yearly.

1. The alterations to Division Rule 14 confer a discretion on the Returning Officer to determine the mode and manner of nominating for office.

1. The alterations to Federal Rules 6A, 17, 21 and 29, Division Rule 1 and Rules 1 and 14 of the Supplementary Rules – Professional Engineers Division operate to merge the Northern Territory Sub-Division with the South Australian Sub-Division by creating a Division representing members in both Northern Territory and South Australia. One consequence of those alterations is the abolition of the Northern Territory Sub-Division Committee and the discrete representation for the Northern Territory on the National Assembly.

Abolition of the Northern Territory Sub-Division

1. The following principles are relevant to the restructure of organisations:

   ● an organisation has the right to structure itself as it sees fit [Williams v Hursey (1959) HCA 51, 103 CLR 30];
   ● an organisation is not required to have branches nor does the abolition of a branch necessarily require the consent or approval of the branch concerned [Imlach v Daley (1985) 7 FCR 457];

   ● however, if an organisation seeks to abolish an office mid-term the abolition must be effected in accordance with the rules and must be bona fide [majority in Saintv Australian Postal and Telecommunications Union & Ors (1976) 13 ALR 649];

   ● in addition, any abolition of office must not have an oppressive, unreasonable or unjust effect on members or applicants for membership (in the plural) having regard to the objects of the legislation [Roughan v Australasian Meat Industry Employees’ Union (1992) 36 FCR 536].

2. These principles indicate that the alterations should be certified unless they are found to be not bona fide or that they have an oppressive, unreasonable or unjust effect on members.

1. I now must consider whether the abolition of the Division and associated offices is bona fide. On 6 July 2017, APESMA provided the Commission with the following information enunciating the reasons for the abolition of the Northern Territory Sub-Division:

[S]ince the inception of the new governance structure in 2013 there has not been, in the two elections which have been held since this time, any nominations for the Northern Territory Sub-Division Committee. The fact that there have been no nominations for Northern Territory Sub-Division President has meant that members in the Northern Territory have been unrepresented on National Assembly. Overall, this Sub-Division has been completely non-functioning thereby depriving the small number of members in the Northern Territory of any voice in the affairs of the Association. The proposed Rules alterations will rectify this situation and in addition guard against any future potential compliance issues.

1. I have nothing before me to suggest that the alterations are not bona fide. On the contrary, the information provided by APESMA suggests the alterations will strengthen representation and governance arrangements for Northern Territory members consistent with the Parliament’s stated intentions in enacting the Act.[1]

1. I now consider whether the abolition of the offices has an oppressive, unreasonable or unjust effect on members or applicants for membership having regard to the objects of the Act.

2. The abolition of offices has been discussed extensively in case law. Boland J of the Industrial Relations Commission of NSW considered the abolition (and truncation) of an office in an organisation registered under the Industrial Relations Act 1996 (NSW) - a legislative context that is not dissimilar to the Act – as follows:

   ...in order for the rule change to be oppressive, unreasonable or unjust there needs to be something more than simply the truncation of the four year term. One has to consider, with particular regard to the object in s 3(d), what effect the rule change would have on the democratic control… and whether it encouraged responsible management. The rule change abolishes a number of offices but it does not fundamentally alter the decision making structure of the organisation.[2]

1. Having regard to the above, I am satisfied the alterations do not fundamentally alter the decision making structure of the organisation. The governing bodies continue to have the same powers and duties. As noted above, by merging the Northern Territory Sub-Division with the South Australian Sub-Division the alterations provide the Northern Territory Sub-Division members with a functioning office and representation on the Committee of Management. In each of these respects the alteration reflects Parliament’s intention in enacting the Act. I have not found anything that otherwise suggests the alterations will have an oppressive, unreasonable or unjust effect on members of the organisation under subsection 142(1)(c).

Diversity National Assembly Member

1. As noted above, the alterations deal with an office on National Assembly reserved for women. As altered, subrule 16.1.2.7 reads:

   In addition to the National Assembly member positions specified in Rule 16.12, there shall be one National Assembly position which shall be titled Diversity National Assembly Member and which shall be filled by a financial woman member. The electorate for this position shall comprise all financial women members and for the purposes of the election procedures for this position, the Organisation shall assume the responsibilities otherwise attributed to Divisions.

1. In other words, your sex will either entitle you to be nominated for the office and vote in elections to fill it, or bar you from doing so. A question which naturally arises in the circumstances is whether a rule of that type contravenes Commonwealth anti-discrimination legislation. If it did so, the alteration could not be certified because it would be contrary to law within the meaning of section 159(1)(c).

1. The Sex Discrimination Act 1984 (SDA) is apposite. Its objects include “eliminate[ing], so far as is possible, discrimination against persons on the ground of sex”.[3]

1. Subsections 5(1)(a), (2) & (3), 19(2)(a) & (c) and section 7D are relevant. They provide:

5 - Sex discrimination

(1) For the purposes of this Act, a person (in this subsection referred to as the discrimination) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of:

(a) the sex of the aggrieved person;

…

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different sex.

(2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.

(3) This section has effect subject to sections 7B and 7D

7D - Special measures intended to achieve equality

(1) A person may take special measures for the purpose of achieving substantive equality between:

(a) men and women; or

…

(2) A person does not discriminate against another person under section 5, 5A, 5B, 5C, 6, 7, 7AA or 7A by taking special measures authorised by subsection (1).

(3) A measure is to be treated as being taken for a purpose referred to in subsection (1) if it is taken:

(a) solely for that purpose; or

(b) for that purpose as well as other purposes, whether or not that purpose is the dominant or substantial one.

(4) This section does not authorise the taking, or further taking, of special measures for a purpose referred to in subsection (1) that is achieved.

19 - Registered organisations under the Fair Work (Registered Organisations) Act 2009

(1) It is unlawful for a registered organisation, the committee of management of a registered organisation or a member of the committee of management of a registered organisation to discriminate against a person, on the ground of the person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities:

(a) by refusing or failing to accept the person’s application for membership; or

(b) in the terms or conditions on which the organisation is prepared to admit the person to membership

(2) It is unlawful for a registered organisation, the committee of management of a registered organisation or a member of the committee of management of a registered organisation to discriminate against a person who is a member of the registered organisation, on the ground of the member’s sex…

(a) by denying the member access, or limiting the member’s access, to any benefit provided by the organisation;

(b) by depriving the member of membership or varying the terms of membership; or

(c) by subjecting the member to any other detriment.

1. The former Australian Industrial Relations Commission considered sections 5, 7D and 19 of the SDA in connection with alterations to rules of a registered organisation that reserve offices for females.

1. In Re: Jacomb[4], Senior Deputy President Lacy dealt with an appeal against the certification of a number of rule alterations by a Deputy Industrial Registrar. The alterations complained of, inter alia, reserved various offices in a branch of the Australian, Municipal, Administrative, Clerical and Services Union for women.

1. The Senior Deputy President considered that the primary issues that fell for determination included “whether the alterations to the rules render them sexually discriminatory or otherwise contrary to law.”[5]

1. After analysing the Deputy Industrial Registrar’s decision, the statutory context and decisions about similar rules decided under previous iterations of the SDA, his Honour stated:

[57]     Discrimination under the SDA, so far as presently relevant, means differential treatment on the ground of sex in circumstances that are the same or not materially different. In the case here under consideration the argument appears to be that the rules are discriminatory in the terms of paragraph (b) of s 19(1) and paragraphs (a), (b) and (c) of s 19(2).

…

[66]     I am satisfied that the ASU rule alterations that reserve positions specifically for women are contrary to s 19 of the SDA when that section is read in isolation. However, s 19 must be read in the context of the SDA as a whole.

before turning to the special measures exception contained in section 7D.

1. His Honour concluded:

[68]     Sections 5… of the SDA define[s] discrimination, in terms of sex… for the purposes of the SDA. Accordingly, a person who takes a special measure for the purpose of achieving substantive equality in any of the discriminatory senses as defined by the Act, is taken not to have discriminated against another by reason of that special measure. Such discrimination as there might otherwise have been effected by the special measure is rendered benign.

1. His Honour then considered what was required for a measure to fulfil the purpose of “achieving substantive equality” as that expression is used in section 7D.

1. He decided:

[73]     The question that must be determined… is whether rules that reserve positions specifically for women achieve substantive equality, that is do they advance effective and genuine equality. [I]t is not merely a question of whether it achieves effective and genuine equality, but rather whether it advances it. Of course, if substantive equality has been achieved already then the rule is not protected by s 7D of the SDA and it is unlawful…

[74]     …The answer to that question lies in a determination of whether an election by the constituents of the branches constituted under the rules will, in the absence of the preferential treatment of women there to be found, achieve substantive equality. I am not satisfied that the result would be one of substantive equality in the absence of the rule.

[75]     [Further, t]he material before me does not suggest that the steps that have been taken by the ASU to redress systemic discrimination against women in the organisation since its inception generally, has resulted in substantive equality.

and dismissed that aspect of the appeal.

1. For present purposes there are no differences between the terms of sections 19 and 7D of the SDA as they stood when considered by Lacy SDP and as they stand now.[6]

1. I respectfully agree with his Honour’s analysis and conclusions. I adopt them as they pertain to the interrelationship between the SDA and the ‘otherwise contrary to law’ limb of the test contained in subsections 141(1)(a) and 159(1)(b) of the Act.

1. Having examined the lists of persons holding office on the National Assembly and elsewhere within APESMA in recent years, it is apparent that substantive equality between men and women has not been achieved in APEMSA. In the circumstances, I find that Rule 16 contains a special measure within the meaning of section 7D of the SDA.

1. Because Rule 16 contains a special measure within the meaning of section 7D of the SDA, the alteration to Rule 16 does not contravene the SDA. There is no reason to consider that it is contrary to any other law. Consequently the alteration is not otherwise contrary to law.

1. I now turn to subsection 142(1)(d) of the Act. This is necessary because subsection 142(1)(d) was not an issue before SDP Lacy[7] and also because the exception in the SDA applies only for the purposes of the SDA. In contrast to specific anti-discrimination legislation such as the SDA, the Act provides little guidance as to what constitutes discrimination. “Discriminate” is not defined in the Act and the only qualification on subsection 142(1)(d), contained in subsection 142(2), relates to discrimination on the basis of age and is not relevant for present purposes. In the circumstances, it is permissible for me to draw on sources of meaning external to the Act.[8]

1. The High Court has considered the concept of discrimination in the context of its constitutional jurisprudence and has developed a substantive, rather than formal, definition. The judgement of Gaudron J in Street v Queensland Bar Association[9] is a leading statement of this approach:

20. Although in its primary sense “discrimination” refers to the process of differentiating between persons or things possessing different properties, in legal usage it signifies the process by which different treatment is accorded to persons or things by reference to considerations which are irrelevant to the object to be attained. The primary sense of the word is “discrimination between”; the legal sense is “discrimination against”.

21. Where protection is given by anti-discrimination legislation, the legislation usually proceeds by reference to an unexpressed declaration that certain characteristics are irrelevant within the areas in which discrimination is proscribed. Even so, the legislation frequently allows for an exception in cases where the characteristic has a relevant bearing on the matter in issue. Thus, for example, the Anti-Discrimination Act 1977 (NSW), whilst proscribing discrimination in employment on the grounds of race and sex, allows in ss.14 and 31 that discrimination is not unlawful if sex or race is a genuine occupational qualification.

22. The framework of anti-discrimination legislation has, to a considerable extent, shaped our understanding of what is involved in discrimination. Because most anti-discrimination legislation tends to proceed by reference to an unexpressed declaration that a particular characteristic is irrelevant it is largely unnecessary to note that discrimination is confined to different treatment that is not appropriate to a relevant difference. It is often equally unnecessary to note that, if there is a relevant difference, a failure to accord different treatment appropriate to that difference also constitutes discrimination.

…

25. … Just as the legal concept of discrimination does not extend to different treatment appropriate to a relevant difference, so too, the absence of a right or entitlement does not constitute a disability if the right or entitlement is appropriate to a relevant difference.

1. The High Court’s substantive definition of discrimination has since been invoked in the interpretation of statutory provisions which prohibit discrimination but leave discrimination otherwise undefined.[10] Such provisions are distinguishable from specific and comprehensive anti-discrimination legislation such as the SDA. I consider that the High Court’s approach is applicable to subsection 142(1)(d) in the present case.

1. In light of Gaudron J’s reasoning, the differential treatment at issue, reserving specifically for women an office of a voting member of a collective body of an organisation, is not sufficient to render the rule discriminatory as long as the differential treatment is relevant and appropriate to the object to be attained. The rule in question is directed towards encouraging the participation of women in the affairs of the organisation and ensuring that the organisation is representative of its female members. I consider that the differential treatment in this instance is relevant and appropriate to the object to be attained.

1. I have also had regard to Parliament’s intention in enacting the Act, as set out in Section 5. Specifically, the Act is designed to:

(a) ensure that employer and employee organisations registered under this Act are representative of and accountable to their members, and are able to operate effectively; and

(b) encourage members to participate in the affairs of organisations to which they belong; and

(c) encourage the efficient management of organisations and high standards of accountability of organisations to their members; and

(d) provide for the democratic functioning and control of organisations; and

(e) facilitate the registration of a diverse range of employer and employee organisations.[11]

1. I consider that the objects of reserving a position for female members are consistent with, and are not contrary to, the standards set out above.

1. On the basis of the material before me, I find that the rule does not discriminate between applicants for membership, or members, of the organisation on the basis of sex contrary to paragraph 142(1)(d) of the Act.

1. Finally, I must consider whether the alterations to Rule 16 impose on members, of the organisation conditions, obligations or restrictions that, having regard to Parliament’s intention in enacting this Act and the Fair Work Act, are oppressive, unreasonable or unjust.

1. By limiting the class of persons who can be nominated for certain offices and elect persons to those offices, the rules impose conditions, obligations or restrictions on the members of APESMA.

1. However, the clear intention of rules which reserve an office for women is to increase the level of participation by members – especially female members – in the affairs of the organisation, to ensure that APESMA is representative of its female members and to increase the diversity of representatives in executive office and on collective bodies which have policy determination or management functions. This is consistent with and not contrary to Parliament’s intentions in enacting the Act, particularly those intentions set out in subsections 5(3)(a), (b) & (d). The alterations to Rule 17 do not impose the type of conditions, obligations or restrictions that are proscribed by subsection 142(1)(c).

Conclusion

1. I previously stated that in my opinion, the alterations were made under the rules of the organisation. In light of the conclusions I have reached above it is also my opinion that the alterations comply with and are not contrary to the 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 Act.

DELEGATE OF THE GENERAL MANAGER

[1] See subsections 5(a), (c) and (d) of the Act.

[2] Re - Application by USU for alteration of Rules - Reference by Industrial Registrar [2008] NSWIR Comm 248 (19 December 2008).

[3] Subsection 5(3).

[4] PR943240; Senior Deputy President Lacy; 5 February 2004.

[5] Ibid at [7].

[6] When considered by the SDP, section 19 did not proscribe discrimination on the grounds of sexual orientation, gender identity, intersex status, relationship status, breastfeeding or family responsibilities. Similarly, section 7D did not countenance the taking of special measures for the purposes of achieving substantive equality between: people who have different sexual orientations, people who have different gender identities, people who have different relationship statuses, women who are breastfeeding and people who are not breastfeeding or people with family responsibilities and people without family responsibilities. In all other respects the sections are substantively identical.

[7] Lacy SDP was not required to consider the effect of subsection 142(1)(d) in Re: Jacomb, because the subsection commenced operation after his Honour had reserved his decision in the appeal.

[8] See Bayside City Council v Telstra Corporation Limited (2004) 216 CLR 595 at 638, per McHugh J.

[9] (1989) 168 CLR 461. In Castlemaine Tooheys Ltd v South Australia, Gaudron and McHugh JJ built upon this definition, describing the ‘general features of a discriminatory law’.

[10] See for example Bayside City Council v Telstra Corporation Limited (2004) 216 CLR 595, Cameron v The Queen (2002) 209 CLR 339.

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