The Australasian Meat Industry Employees Union
[2022] FWCD 6
•20 DECEMBER 2022
| [2022] FWCD 6 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
The Australasian Meat Industry Employees Union
(R2022/114)
| AILSA CARRUTHERS | MELBOURNE, 20 DECEMBER 2022 |
Alteration of other rules of organisation.
On 19 September 2022, The Australasian Meat Industry Employees Union (AMIEU) lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to its rules. On 18 October 2022 and 14 December 2022, further information supporting the application was provided to the Commission.
On the information contained in the notice, I am satisfied the alterations have been made under the rules of the organisation.
The particulars set out alterations to Rules 13, 42, 43, 44 and 47.
The alterations dissolve the AMIEU’s Tasmanian Branch and attach members from that Branch to its Newcastle and Northern New South Wales Branch. Consequently, the Newcastle and Northern New South Wales Branch has been renamed the Newcastle, Northern and Tasmanian Branch (NNT Branch).
In its lodgment materials, the Union has said that the Tasmanian Branch considered that it was no longer financially viable as a separate branch. The Tasmanian Branch ceased operations on 23 August 2022.[1]
The alterations abolish offices in the Tasmanian Branch. Two new offices have been created in the NNT Branch. Those two offices will be temporarily filled by the Tasmanian Branch’s President and Assistant Secretary until an election for these offices has been held. This aspect of the alterations requires further comment regarding compliance with the Fair Work (Registered Organisations) Act 2009 (the Act).
Are the alterations contrary to s.142(1)(c) of the Act?
Section 159(1) of the Act provides:
(1) An alteration of the rules (other than the eligibility rules) of an organisation does not take effect unless particulars of the alteration have been lodged with the FWC and the General Manager has certified that, in his or her 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.
Amongst other provisions, an alteration must comply with s.142 of the Act, which sets out general requirements for rules of registered organisations. Of present relevance, s.142(1)(c) states that the rules of an organisation must not impose on applicants for membership, or members of the organisation, conditions, obligations or restrictions which, having regard to Parliament’s intentions of the Act and the Fair Work Act 2009, are “oppressive, unreasonable or unjust”.
When an organisation is considering abolishing an office, the following principles apply:
an organisation has the right to restructure itself as it sees fit;[2] however
if an organisation decides to abolish an office, the abolition must be effected in accordance with the rules and must be bona fide;[3] and
any abolition of office must not have an oppressive, unreasonable or unjust effect on members or applicants for membership having regard to the objects of the Act. This does not require consideration of the effects of the rules “upon the personal fortunes of an individual officer or member but whether an oppressive, unreasonable or unjust burden has been imposed upon a significant number of members”.[4]
The circumstances of an alteration involving an abolition of office must be considered.[5] Currently, the Tasmanian Branch has four offices which are filled. As noted in paragraph [6], those offices will be abolished and two new offices will be created and will be temporarily filled.
In its submissions, the AMIEU have acknowledged that the alterations will abolish offices in the Tasmanian Branch and that this was “unavoidable in the circumstances”.[6] However, the AMIEU notes that membership within the Tasmanian Branch has “declined over recent years”, with a main cause of the decline in membership being the result of a decision from a supermarket chain to make redundant a majority of their meat team employees in 2021.[7]
The AMIEU further submits that the Union has complied with its rules in dissolving the Tasmanian Branch. The Tasmanian Branch’s Committee of Management passed a resolution requesting the Federal Executive to dissolve the branch.[8] A “similar resolution”[9] made by the Newcastle and Northern New South Wales Branch was also received by the Federal Executive around the same time. The AMIEU’s Federal Executive acted upon this request and passed its own motion to dissolve the Tasmanian Branch.[10] The process undertaken complies with Rule 38.4 of the AMIEU’s rules.
Of the four office holders, the former Branch President and the Assistant Branch Secretary of the Tasmanian Branch will temporarily hold offices in the NNT Branch’s Committee of Management. The AMIEU’s Federal Executive are obliged to temporarily increase the number of office holders on the Committee of Management of the other branch until an election for the new offices are held.[11] With respect to the other offices, the AMIEU has submitted that the Tasmanian Branch Secretary has consented to the abolition of his office. The remaining office holder will not be appointed to the merged Branch’s Committee of Management. In further submissions provided by the AMIEU, the Union noted that the affected office holder did not express any objection to the proposed alterations.[12] Notwithstanding this, the affected office holder is still a member of the AMIEU and will still be entitled to nominate for offices in future elections.[13]
Members of the AMIEU who are based in Tasmania will still have representation on the NNT Branch with the requirement of two of the nine Committee of Management positions being reserved for members of the Tasmanian membership of the Branch.[14] Furthermore, Rule 13.2.7 reserves two positions on the Federal Council for delegates who have been elected by members based in Tasmania.
Based on the above information, the dissolution of the Tasmanian Branch and the abolition of the offices in the Tasmanian Branch are bona fide. I am satisfied that the alterations are not contrary to s.142(1)(c) of the Act and have been made in accordance with the rules of the AMIEU.
Are the alterations contrary to s.143(1)(a) of the Act?
Under section 143(1)(a) of the Act, the rules of an organisation must provide elections for the holder of an office, whether that be via a direct voting system or a collegiate voting system that, in the case of a full-time office, is a one-tier collegiate electoral system.
The alterations will result in the creation of two new offices on the NNT Branch Committee of Management. It is clear that the duties and significance of the new offices, to be temporarily held by the former Branch President and former Assistant Branch Secretary of the Tasmanian Branch, will be different to their former offices.
As new offices have been created on the NNT Branch’s Committee of Management, an election must be held for those offices.[15]
In its submissions, the AMIEU provided that the appointments to the new offices are temporary and have been made in accordance with its rules.[16] Rule 38.5.3 provides that when a branch has been dissolved, the Union’s Federal Executive must temporarily increase the number of members on the Committee of Management of the other affected branch until an election for the affected offices is held. The Union further submits that an election for the newly appointed offices will be conducted within three months of the appointment occurring and that the Union has already contacted the Registered Organisations Commission to advise that an upcoming election for the new offices is pending, subject to these alterations.[17]
Based on the above information, I am satisfied that the alterations are not contrary to s.143(1)(a) of the Act.
On 18 October 2022, Justin Smith, the President of the AMIEU, gave consent, under subsection 159(2) of the Act, for the Delegate to make various amendments to the alterations for the purpose of correcting typographical, clerical or formal errors. Accordingly, the following correction has been made:
In subrule 13.2.6, the entire subrule should be deleted and replaced by the word “deleted”.
Finally, I note that Rules 43 and 47 use the NNT Branch’s previous name. This does not make the alterations oppressive, unreasonable or unjust as, despite the inconsistencies with the remainder of the rules, sufficient certainty remains. These are not typographical, formal or clerical errors for the purposes of s.159(2) of the Act and so cannot be corrected. I suggest that the AMIEU considers making further alterations to its rules to include the Branch’s new name in both Rules 43 and 47.
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 are made under the rules of the AMIEU. I certify accordingly under subsection 159(1) of the Act.
DELEGATE OF THE GENERAL MANAGER
[1] AR2022/29 – Notification of change of the records lodged with the Registered Organisations Commission in accordance with s.233(2) of the Fair Work (Registered Organisations) Act 2009.
[2] Williams v Hursey (1959) HCA 51, 103 CLR 30.
[3] Saint v Australian Postal and Telecommunications Union & Ors (1976) 13 ALR 649.
[4] R2020/49 citing Roughan v Australasian Meat Industry Employees Union (1992) 36 FCR 536.
[5] Doyle v The Australian Workers’ Union (1986) 12 FCR 197.
[6] The Australasian Meat Industry Employees Union, ‘Re: Rule Changes proposed for the Australasian Meat Industry Employees’ Union Matter R2022/114, Submission in R2022/114, 18 October 2022, p.1.
[7] Ibid.
[8] Ibid, p.2.
[9] Ibid.
[10] Ibid.
[11] See Rule 38.5.3 of the AMIEU Rules.
[12] R2022/114.
[13] The Australasian Meat Industry Employees Union, ‘Re: Rule Changes proposed for the Australasian Meat Industry Employees’ Union Matter R2022/114, Submission in R2022/114, 18 October 2022, p.1-2.
[14] See Rule 47.33.2 of the AMIEU Rules.
[15] Fair Work (Registered Organisations) Act 2009, s.143(1)(a).
[16] The Australasian Meat Industry Employees Union, ‘Re: Rule Changes proposed for the Australasian Meat Industry Employees’ Union Matter R2022/114, Submission in R2022/114, 18 October 2022, p.2.
[17] Ibid.
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