The Australian Industry Group

[2020] FWCD 3662

[2020] FWCD 3662

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

The Australian Industry Group

(R2020/81)

MURRAY FURLONG MELBOURNE, 29 JULY 2020

Alteration of other rules of organisation.

1. On 22 June 2020 The Australian Industry Group (AiG) lodged with the Fair Work Commission a notice and declaration setting out particulars of an alteration to its rules. Further information in support of the application was lodged on 8 July 2020.

1. On the information contained in the notice and subsequently provided, I am satisfied the alteration has been made under the rules of the organisation.

1. The particulars insert a new Part XVII into the AiG’s rules. Part XVII contains a single rule: Rule 55 – Definition of ‘Term’ during the COVID-19 pandemic.

1. According to a submission lodged with the application, the alteration is aimed at assisting the organisation to deal with the current COVID-19 pandemic by delaying biennial elections for National and Branch officers. Those elections are scheduled to take place later this year. It achieves its aim by extending the current terms of office by one year, to three years. The Rule change only applies to the 2018-2020 term of office. It does not extend any future terms of office

1. There is a rebuttable presumption that a rule alteration cannot retrospectively increase a term of office once an election has taken place.

1. The former Commonwealth Industrial Court considered whether rules that increased the length of an office’s term could apply in respect of officers elected prior to the amendment, or instead would apply only in connection with elections held after the alteration had been certified.

1. In Higgins v McGrane[1], the Full Court stated that “[t]he question must in the ultimate analysis be one of intention.”

1. Similarly, in Beeson v Blayney[2], Joske J stated:

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.

1. Spicer CJ and Eggleston J concurred.

1. Joske J also considered the magnitude of the change to the term’s length. The term of office under consideration doubled from three to six years. This in Joske’s view might have impacted both a member’s preparedness to nominate for office and voters’ preparedness to endorse a particular candidate.[3]

1. In a later matter before the Federal Court of Australia[4], Gray J stated:

It is clear that the presumption against retrospectivity may apply to the rules of an organisation. As Spicer CJ and Eggleston J said in Davis v Pulp and Paper Workers Federation of Australia (1963) 8 FLR 277 at 280-281:

“The rule of construction against retrospective operation which applies to statutes does not, of course, directly apply to the rules of an organisation. But the rule applicable to statutes is based on the presumption that the legislature does not intend what is unjust (see Doro v Victorian Railways Commissioners [1960] VR 84 at 86), and somewhat similar considerations must apply to the construction of the rules of an organisation such as this, particularly where the injustice of the rule may be a statutory ground of invalidity.”

Their Honours went on to hold that injustice would be involved in the application of a rule retrospectively in that case. The presumption against retrospectivity may be overcome by clear words, or may be held not to apply in the absence of harsh effects or interference with vested interests or accrued rights, see Doro v Victorian Railways Commissioners [1960] VR 84 at 86. (my emphasis)

1. In my view, the current matter is distinguishable from both Higgins v McGrane and Beeson v Blayney.

1. In both of those cases the altered rules were held not to apply to the offices which were in the midst of their terms, because the rules as altered neither expressly nor impliedly did so. The proposed AiG rule, on the other hand, clearly articulates an intention to apply to the current terms of office.

1. In addition, the concern Joskse J expressed in Re: Beeson, about the magnitude of the change to the length of the office’s term, does not arise here. The AiG’s proposed rule increases the length of the term by far less, whether the increase is looked at as a proportion of the exitsing term of office, or in an absolute sense.

1. In support of its application, the AiG made submissions that addressed the comments made by Gray J in Re: Mellor. Among other things, it submitted:

The Rule alteration is not unjust. It does not have any harsh effects or interfere with vested interests or accrued rights. In this regard, the following points are relevant:

The Rule alteration is in response to a global Pandemic that has had major adverse effects on the Australian community and Australian businesses, including on Ai Group and other registered organisations

The Rule alteration is consistent with the Registered Organisations Commission’s and the Australian Electoral Commission’s recognition that “the priority of the Australian community at this time… including officers and members of organisations, is protecting the health and wellbeing of the community” and the temporary postponement of industrial elections may be necessary.

…

The Rule alteration would operate on one occasion only, and would not have any ongoing effects;

1. The AiG also submitted that:

there is no evidence to suggest that the alteration “imposes an oppressive, unreasonable or unjust condition upon members or applicants for membership within the meaning of section 142(1)(c) of the RO Act”.

1. I accept these submissions. The alteration does not have harsh effects or interfere with vested interests or accrued rights. Nor does impose an oppressive, unreasonable or unjust condition upon members or applicants for membership within the meaning of section 142(1)(c) of the Fair Work (Registered Organisations) Act 2009 (RO Act).

1. The extension of the current terms of office is a rational and proportionate response to the circumstances that both the AiG and the country as a whole find ourselves in. Extending the terms of office, by a relatively short period, in order to postpose holding elections at a time when there are temporary but indeterminant restrictions on movement, assembly and the customary manner that work is performed is reasonable. I also note that if the AiG was unable to hold elections in 2020 under its current rules as a consequence of the current COVID-19 related restrictions, it would find itself in breach of its rules due to exceptional circumstances and through no fault of its own.

1. In my opinion, the alteration complies with and is not contrary to the RO 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 RO Act.

DELEGATE OF THE GENERAL MANAGER

[1] (1961) 5 FLR 82; Spicer CJ, Dunphy, Eggleston JJ at 85

[2] (1966) 8 FLR 292; Spicer CJ, Joske, Eggleston JJ, per Joske J at 294

[3] Ibid at 294 – 295

[4] Re Mellor; Re Federated Liquor and Allied Industries Employees Union of Australia ((1987) 17 FLR 120; 18 IR 350)

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