The Australasian Meat Industry Employees Union

[2024] FWCD 1032

[2024] FWCD 1032

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

The Australasian Meat Industry Employees Union

(R2024/71)

CHRIS ENRIGHT MELBOURNE, 5 AUGUST 2024

Alteration of other rules of organisation.

1. On 24 May 2024 The Australasian Meat Industry Employees Union (the AMIEU) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules. Information in support of the alterations was provided on 22 March 2024, 22 April 2024, 24 May 2024, 28 May 2024 and 3 June 2024.

1. The AMIEU 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 5 – Registered Office;

   ·     Rule 13 – Federal Council;

   ·     Rule 42 – Branches;

   ·     Rule 43 – Branch Areas;

   ·     Rule 44 – Branch Organisation; and

   ·     Rule 47 – Branch Government.

1. The particulars additionally insert the following new rules:

   ·     Rule 56A – Appointment of Non-Elected Delegates;

   ·     Rule 56B – Power of Delegates;

   ·     Rule 56C – Termination of Delegate; and

   ·     Rule 56D.

1. The alteration to rule 5 updates the address of the AMIEU’s federal office. This is minor and uncontroversial.

1. The remaining alterations fall into two categories. The alterations to rules 13, 42 – 44 and 47 establish new branch structures. The insertions of rules 56A – D introduce the powers and duties of workplace delegates.

Restructure of branches

1. The AMIEU sought to change its structure provided in rules 42 to 44, by dissolving the South and Western Australian Branch (SWA Branch) and reallocating its members to other branches. In particular, the members in South Australia are reallocated to the Newcastle, Northern and Tasmanian Branch, while those in Western Australia are reallocated to the Queensland Branch.

1. As a result of this restructure, the alterations to rules 13 and 47:

   ·     abolish the offices within the SWA Branch;

   ·     abolish the offices of SWA Branch Delegate to Federal Council;

   ·     rename the Newcastle, Northern and Tasmanian Branch as the Newcastle, Northern, South Australian and Tasmanian Branch (NNSAT Branch);

   ·     rename the Queensland Branch as the Queensland, Western Australia, and Northern Territory Branch (QWANT Branch);

   ·     create two new representative positions in the NNSAT Branch’s Branch Committee of Management (BCoM) and reserve them for the members in South Australia;

   ·     create one new representative position in the QWANT Branch’s BCoM and reserve it for members in Western Australia;

   ·     reduce the number of NNSAT Branch Federal Council Delegate positions from four to three; and

   ·     increase the number of QWANT Branch Federal Council Delegate positions from two to three.

1. The alterations to rule 13 and 47 further,  

   ·     remove the two guaranteed NNSAT Branch Federal Council Delegate positions reserved for members in Tasmania; and

   ·     reduce the number of representative positions in the NNSAT Branch’s BCoM reserved for members in Tasmania from two to one.

1. An organisation has the right to mould its internal structures as it sees fit, provided it complies with the requirements of the legislation.[1] This includes changing how members are grouped and represented within the organisation by abolishing a branch or altering who is attached to a branch. A relevant requirement of the Act is that rules must not impose conditions, obligations or restrictions that are, having regard to Parliament’s intentions and the objects of the Act, oppressive, unreasonable or unjust.[2] When considering whether conditions imposed on members are oppressive, unreasonable or unjust, regard must be had, among other things, to the democratic functioning and control of the organisation.[3]

1. In addition, if an organisation decides to abolish a branch, the abolition must be performed in accordance with the rules and must be bona fide.[4]

1. The Full Court of the Federal Court has considered rules which enabled the federal body of a registered organisation to disband branches.[5] The Full Court upheld rules which preserved the ability for affected members to participate in the affairs of the organisation and ensured the continued enjoyment of the rights and privileges of membership.[6]

1. Under the proposed structure, while the affected members lose their direct votes in the Federal Council, they receive reserved representative positions in their new BCoM. Therefore, the affected members could continue to participate in the affairs of the organisation. The organisation’s democratic functioning and the affected members’ membership rights have not materially changed.

1. The AMIEU submitted that it has complied with its rules in dissolving the SWA Branch.[7] The AMIEU’s Federal Executive resolved to dissolve the SWA Branch following a request from the Branch to do so. Before the Federal Executive acted:

   ·   the BCoM of the SWA Branch passed a resolution requesting the Federal Executive to dissolve the branch and reallocate its members; and

   ·   the BCoMs of the Queensland Branch and the Newcastle, Northern and Tasmanian Branch resolved to accept the transfer of members.

1. In my view the steps taken by the Federal Executive and the BCOMs fulfil the requirements set out in AMIEU’s rules.[8]

1. In its correspondence of 3 June 2024, the AMIEU advised:

   “The proposal to dissolve the South and Western Australian Branch was taken at the request of that Branch because it was no longer financially viable”.

1. The SWA Branch’s last two audited general purpose financial reports confirm that the branch was operating at a loss and that its net assets were decreasing.[9]

1. I am satisfied the proposed alterations that restructure the AMIEU’s branches do not impose conditions, obligations or restrictions that are, having regard to Parliament’s intentions and the objects of the Act, oppressive, unreasonable or unjust. I am also satisfied that the affected members will continue to be afforded the opportunity to participate in the organisation’s governance structures and will continue to enjoy the rights and privileges of membership.

1. I am also satisfied that the abolition of the SWA Branch was performed in accordance with the rules and was bona fide.

1. A related question arises in connection with the abolition of the SWA Branch offices. The abolition of an office in an organisation or its branches must be bona fide and must not impose oppressive, unreasonable or unjust conditions on members within the meaning of the Act.[10]

1. The abolition of these offices is an inevitable consequence of dissolving the SWA Branch. The passing of the dissolution resolution in the BCoM of SWA Branch signifies that the majority of the current office holders support the abolition of their offices and confirms that the decision was bona fide. Given the matters referred to in paragraph [15] above, removing this layer of offices does not impose oppressive, unreasonable or unjust conditions.

1. I am therefore satisfied that the decision to abolish the SWA Branch offices is bona fide and does not impose oppressive, unreasonable or unjust conditions on members within the meaning of the Act.

1. I now turn to the current delegates in the Federal Council. The alterations sought to reduce the number of Federal Council Delegates elected from SWA Branch and NNSAT Branch. The most recent election results were declared in 2022.[11] Under rule 50.1, the terms of office for Federal Council Delegates are four years.

1. There is a rebuttable presumption that a rule alteration cannot retrospectively truncate a term of office once an election has taken place. As Joske J stated in Beeson v Blayney:[12]

“In any event, in my view there is a prima facie principle of construction that unless it appears expressly or by implication in rules as amended that they are intended in their amended form to apply to past matters or events, including matters commenced before but not completed at the time of the amendment, the amendments do not apply to the past or uncompleted matters.”[13]

1. However, this presumption can be rebutted where:

   ·     there is an express or implied intention to apply the alteration to current terms of office;[14] and

   ·     the rule does not have harsh effects or interfere with vested interests or accrued rights.[15]

1. Following the dissolution of the SWA Branch, its associated Federal Council Delegate offices become redundant. Therefore, there is a clear indication that the presumption against retrospective operation is rebutted; the delegates cease to hold office.

1. On the other hand, there is no indication in the application or in the wording of the alterations that the terms of the Federal Council Delegates elected from the NNSAT Branch are intended to be truncated. Therefore, the current delegates are entitled to remain in the office until their term expires. The same applies to the current Tasmanian representatives in the NNSAT Branch.

1. Under the new structure, the members from South Australia, Western Australia and Tasmania will receive fewer delegate positions in the Federal Council. On the face of it, this reduction may appear to be oppressive, unreasonable and unjust.

1. An examination of the AMIEU’s annual returns and financial reports indicates the members in the three states make up a small portion of the organisation’s members.[16] The new structure provides for largely proportional representation of members. An organisation is entitled to aim for proportional representation of membership cohorts within its governing structures. In addition, the affected members will receive reserved positions in their respective BCoM.

1. In the circumstances, reducing the number of future Federal Council Delegates does not impose oppressive, unreasonable or unjust conditions on members, having regard to the objects of the Act.

1. The alterations sought to create three branch offices and one federal office. Given section 143(1)(a) of the Act, those offices must be filled by election.

1. The AMIEU’s current rule 38.5 provides transitional provisions after the dissolution of a branch. The rule provides that the AMIEU’s Federal Executive must temporarily increase the number of members on the BCoM of the new branch until the next ordinary election and additional members must be elected by and from the members from the dissolved branch. The rule also provides that the Federal Executive must temporarily increase the number of persons who are Federal Council delegates of the new branch until the next ordinary election and the delegates must be elected by and from the members from the dissolved branch.

1. I am satisfied that the alterations are not contrary to section 143(1)(a) of the Act.

Workplace Delegate

1. Four new rules are inserted in relation to workplace delegates:

   ·     rule 56A gives the relevant Branch Secretary (or their agent) power to appoint individuals who nominate to be a workplace delegate of their individual workplace;

   ·     rule 56B provides the specific powers and duties of the delegate;

   ·     rule 56C provides the Branch Executive of the relevant State Committee of Management the right to terminate the appointment of an unelected delegate; and

   ·     rule 56D provides disciplinary rules that apply to the delegate.

1. The proposed insertions do not change in any way the operation of workplace delegates who will continue to represent the interests of members of the AMIEU as delegates in their individual workplace. They are not inconsistent with the terms recently inserted into modern awards by a Full Bench of the Commission.[17] They do not require comment beyond expressing my opinion about the matters set out in section 159(1) of the Act.

1. On 24 and 28 May 2024, the Federal Secretary of AMIEU, Mr Matthew Journeaux, gave consent under subsection 159(2) of the Act for me 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 44.2 and the title line of rule 47.13, the phrase “Western Australian” is changed to “Western Australia”;

   ·     In proposed rule 43, the word “Norther” is changed to “Northern”;

   ·     In proposed rule 47.33, the first rule numbering of 47.33.3 is changed to 47.33.2;

   ·     In proposed new rule 35.1.9, the rule numbering is changed to 56D.1.

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

[2] Paragraph 142(1)(c) of the Act provides that rules:

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

[3] Subsection 5(3) of the Act sets out the following standards for registered organisations:

(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

[4] Saint v Australian Postal and Telecommunications Union (1976) 30 FLR 385 at 393

[5] Bramich v TWU (2000) 97 FCR 204

[6] Ibid., at [31]

[7] See the 22 April 2024 correspondence from the AMIEU.

[8] See Rules 38.4.1 & 38.1.2.

[9] The financial reports of AMIEU’s South and Western Australian Branch can be viewed on the Commission’s website at The Australasian Meat Industry Employees Union (AMIEU) - Find a registered organisation - Fair Work Commission (fwc.gov.au).

[10] Roughan v Australasian Meat Industry Employees’ Union (1992) 36 FCR 536 per Wilcox J at 539-541

[11] The election reports of AMIEU’s branches can be viewed on the Commission’s website at The Australasian Meat Industry Employees Union (AMIEU) - Find a registered organisation - Fair Work Commission (fwc.gov.au).

[12] Beeson v Blayney and Others (1966) 8 FLR 292; Spicer CJ, Joske J, Eggleston JJ.

[13] Ibid per Joske J at 294.

[14] Re Mellor; Re Federated Liquor and Allied Industries Employees Union of Australia (1987) 17 FLR 120; 18 IR 350 per Gray J at 353.

[15] Ibid.

[16] The annual returns and financial reports of AMIEU can be viewed on the Commission’s website at The Australasian Meat Industry Employees Union (AMIEU) - Find a registered organisation - Fair Work Commission (fwc.gov.au)

[17] Variation of modern awards to include a delegates’ rights term; Asbury VP; [2024] FWC 1699; 28 June 2024.

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