The Australasian Meat Industry Employees Union
[2020] FWCD 5388
•9 NOVEMBER 2020
| [2020] FWCD 5388 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
The Australasian Meat Industry Employees Union
(R2020/155)
| MURRAY FURLONG | MELBOURNE, 9 NOVEMBER 2020 |
Alteration of other rules of organisation.
On 22 September 2020 The Australasian Meat Industry Employees Union (the Union) lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to its rules. Further material in support of this application was provided on 6 October 2020.
On the information contained in the notice and subsequently provided, I am satisfied the alterations have been made under the rules of the organisation.
The particulars set out alterations to Rules 47.29 and 47.30.
The alterations seek to change the structure of the Union’s New South Wales Branch by creating the position of Assistant Secretary and removing one of the two offices of Vice President.
Rule 47.1 provides that each Branch shall have a President, Vice-President, Secretary and Treasurer. Rule 47.3 enables a Branch to have additional offices including an Assistant Secretary. Thus, the addition of an Assistant Secretary and the removal of one of two offices of Vice President is contemplated by the Union’s rules.
In submissions dated 6 October 2020, Federal Secretary, Graham Smith confirmed that the new office of Assistant Secretary will effectively replace one of the two Vice President positions. This means the overall number of positions will not change; rather the alterations modify the composition of the Branch Committee of Management and the Branch Executive.[1]
The following principles are relevant to the restructure of an organisation:
· an organisation has the right to structure itself as it sees fit;[2]
· if an organisation seeks to abolish an office mid-term the abolishment 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 (in the plural) having regard to the objects of the legislation.[4]
It is well-established that an organisation registered under the Fair Work (Registered Organisations) Act 2009 (the Act) should be able to mould its internal structures as it seems fit, provided it complies with the requirements of the Act, the associated regulations and its rules.[5] The Union submits that the rationale for the proposed alterations is to provide consistency with the composition of other Branches of the Union and to improve governance.
The Union’s most recent annual return of information confirms that one of the two offices of Vice President is currently vacant.[6] Therefore, no officer will have their term of office truncated by the proposed alteration. There is nothing before me to suggest that the Union’s decision to substitute one of the offices of Vice President for the office of Assistant Secretary is not bona fide.
Further, in the present matter abolition of the office does not have an oppressive, unreasonable or unjust effect on members or applicants for membership having regard to the objects of the Act.
The alteration corrects an internal inconsistency in the Union’s rules. As noted above, Rule 47 provides that branches of the Union shall have a Vice-President and may have an Assistant Secretary. Currently the New South Wales Brach has two offices of Vice-President. By substituting an office not envisaged under the rules for one which is, the alteration corrects an anomaly. Doing so means the rules are clearer for those bound by them.
When regard is had to the powers and duties of Vice-President and Assistant Secretaries of a branch,[7] substituting a second Vice-President with an Assistant Secretary is likely to further those Parliamentary intentions that underpin the Act which are concerned with effective operation,[8] efficient management[9] and accountability to the Union’s members.[10] This is particularly so given the Branch retains one Vice-President among its office cohort. The impacts on the Parliamentary intentions concerned with being representative of members,[11] encouraging member participation in the Union’s affairs[12] and the organisation’s democratic functioning[13] are neutral as both the Vice-President and Branch Assistant Secretary are elected by and from the Branch’s members via a direct election system.
On 23 September 2020, Mr Graham Smith, Federal Secretary-Treasurer, 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 reference to ‘Vice Presidents’ in proposed Rule 47.30 has been changed to ‘Vice President.’
In my opinion, 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 Rules 47.29 and 47.30.
[2] Williams v Hursey (1959) HCA 51, 103 CLR 30.
[3] Majority in Saint v Australian Postal and Telecommunications Union & Ors (1976) 13 ALR 649.
[4] Roughan v Australasian Meat Industry Employees’ Union (1992) 36 FCR 536.
[5] Imlach v Daley [1985] FCA 132, 462.
[6] AR2020/30 refers. See s.230(1)(b) & (c) and s.233(1)(b) of the Act.
[7] See Rules 52.33 – 52.36 and 52.7 respectively.
[8] See section 5(3)(a).
[9] See section 5(3)(c).
[10] See sections 5(3)(a) & 5(3)(c).
[11] See sections 5(3)(a).
[12] See sections 5(3)(b).
[13] See sections 5(3)(d).
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