The Australian Maritime Officers’ Union
[2023] FWCD 38
•29 DECEMBER 2023
| [2023] FWCD 38 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
The Australian Maritime Officers’ Union
(R2023/7)
| CHRIS ENRIGHT | MELBOURNE, 29 DECEMBER 2023 |
Alteration of other rules of organisation.
On 1 February 2023 The Australian Maritime Officers’ Union (AMOU) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules. A submission in support of the alterations was lodged on 23 May 2023.
The AMOU sought certification of the alterations under section 159 of the Fair Work (Registered Organisations) Act 2009 (the Act).
On 25 May 2023 the General Manager of the Commission certified most of the alterations, but decided to defer consideration of proposed sub-rule 46(e) (see paragraphs [14] to [17] below).[1]
Proposed sub-rule 46(e) increases the financial membership qualification period to run for the office of National Councillor from six months to one year.
Whether a one year financial membership qualification period for National Councillor is oppressive, unreasonable or unjust
A question arises as to whether a one year qualification period to run for the office National Councillor imposes oppressive, unreasonable or unjust restrictions on members, having regard to Parliament’s intentions and the objects of the Act.[2] The Act sets out a number of standards that apply to registered organisations, including the democratic functioning and control of organisations and the participation of members in the affairs of their organisation.[3]
Restricting a member’s right to run for office could be construed as contrary to the principles of democratic functioning and participation of members in the affairs of their organisation. I refer to the judgement of Joske J in MacDonald[4], where His Honour stated:
“The right to be a member must surely involve a right to take one’s share in the management and control of the body of which one is a member and include as an attribute of membership the right to vote and the right to stand for and be elected to the representative offices of the body. These rights are inherent in the very notion of membership of a representative body, and if they are absent the body is not a truly representative body.”[5]
In Allen[6] Smithers J agreed that qualifications on running for office restrict the opportunity for some members to participate in their organisation, but concluded that conditions can be placed on a member’s right to nominate for office, as long as the conditions are reasonable:
“...a member who is excluded from the right to stand for any office in a union is to that extent excluded from full participation in the affairs of the organization, and that in such a case one of the chief objects of the Act is not achieved. It is not said that certain conditions may not be imposed upon participation...but that the reasonableness of conditions which do so must be assessed...”[7]
When assessing the reasonableness of a restriction on the right to nominate for office, democratic and participatory principles need to be balanced against the effectiveness and efficiency of the organisation.[8]
A number of authorities have considered restrictions which aim to ensure that committees of management are composed of members with an appropriate level of expertise or experience to manage the organisation.[9] As stated by Spicer CJ in Cameron[10], such restrictions seek to ensure that:
“those who undertake the tasks of administration of the organization have more than a fleeting interest and experience of its character and objectives.”[11]
When considering the reasonableness of such restrictions, factors such as the scope of the restriction, the prevailing characteristics of the membership and the proportion of members excluded from office have been considered.[12] For example in Re Stapleton[13] Evatt J had regard to the high turnover of membership in an organisation and held that one year continuous financial membership imposed unreasonable and unjust conditions on the members of that organisation.[14] Whereas Wilcox J in Rule[15] observed that:
“In the case of a one year qualification period it is unlikely that the proportion of members excluded from candidature will be so great as to make unreasonable the imposition of the restriction…”[16]
In Lovell[17] Smithers and Evatt JJ found that in the circumstances where continuity of financial membership was difficult to achieve (because of the methods of collecting union subscriptions) the requirement for continuous financial membership imposed oppressive, unreasonable and unjust conditions on members, irrespective of the length of the qualification period.[18] Whereas Toohey J in Bucknell[19] was not satisfied that a three year qualifying period offended against the Conciliation and Arbitration Act 1904 (the C&A Act) in the circumstances where a member was unlikely to fall into arrears without knowing it.
The AMOU submitted that most members pay their fees by direct bank debits, consequently periods of unfinancial membership are unlikely to occur. The prevailing characteristic of the membership is on-going engagement as maritime officers. In these circumstances it is unlikely that members will fall into arrears without knowing, and the rate of membership turn-over is low.
Considering the characteristics of the AMOU’s membership, it appears that a one year qualification period will not exclude a significant number of members from running for the office of National Councillor. Rather, the qualification period may provide an opportunity for good governance by requiring an appropriate level of experience as a threshold to hold office. In my opinion, a one year qualification period to run for the office of National Councillor of the AMOU does not impose oppressive, unreasonable or unjust conditions on members, having regard to Parliament’s intentions and the objects of the Act.
Opportunity for members to qualify for the office of National Councillor
On 25 May 2023, when the General Manager considered all of the alterations to these rules, the scheduled election for National Councillors in the AMOU was about to commence. At that time, a question before the General Manager regarding proposed sub-rule 46(e) was whether lengthening the qualifying period to run for office immediately prior to the commencement of the election placed oppressive, unreasonable or unjust conditions on members, having regard to the objects of the Act.[20]
In Riordan[21] the Commonwealth Court of Conciliation and Arbitration was of the view that a rule which introduced a qualification for office immediately prior to an election imposed an unreasonable condition on members. This was because:
· it had retrospective operation and deprived members from remedying their incapacity to run for office;
· a significant number of members would be rendered ineligible to run for office; and
· members were not informed of the intended new rules. [22]
The AMOU submitted that the current circumstances are distinguishable from Riordan and that the extended qualification period to nominate for the office of National Councillor does not impose unreasonable conditions on members. However, it also pressed for the determination of the other alterations as quickly as possible so that the 2023 scheduled elections could commence.
For these reasons and considering that proposed sub-rule 46(e) was severable from the other alterations, the General Manager decided to temporarily put aside consideration of that sub-rule.
On 15 November 2023 the Australian Electoral Commission declared the final results of the 2023 AMOU election.[23]
The rules of the AMOU provide for a four year term of office (rule 77(a)), and therefore the next scheduled election is due in 2027. Consequently, members will have ample opportunity to meet the qualifying period to run for the office of National Councillor. I also note that, as submitted by the AMOU, members were put on notice about the rule changes and were given the opportunity to object, and none did so. In my view proposed sub-rule 46(e) will not deprive members of the opportunity to ensure that they qualify to run for the office of National Councillor.
In my opinion proposed sub-rule 46(e) complies with and is not contrary to the Act, the Fair Work Act 2009 (Cth), modern awards and enterprise agreements, is not otherwise contrary to law and was made under the rules of the AMOU. I certify accordingly under subsection 159(1) of the Act.
DELEGATE OF THE GENERAL MANAGER
[1] AMOU [2023] FWCG 17
[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] Section 5 of the Act provides:
(1)It is Parliament’s intention in enacting this Act to enhance relations within workplaces between federal system employers and federal system employees and to reduce the adverse effects of industrial disputation.
(2)Parliament considers that those relations will be enhanced and those adverse effects will be reduced, if associations of employers and employees are required to meet the standards set out in this Act in order to gain the rights and privileges accorded to associations under this Act and the Fair Work Act.
(3)The standards set out in this Act:
(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)It is also Parliament’s intention in enacting this Act to assist employers and employees to promote and protect their economic and social interests through the formation of employer and employee organisations, by providing for the registration of those associations and according rights and privileges to them once registered.
(5)Parliament recognises and respects the role of employer and employee organisations in facilitating the operation of the workplace relations system.
[4] MacDonald v The Amalgamated Engineering Union (Australian Section) (1962) 3 FLR 446
[5] Ibid., at 449
[6] Allen v Townsend & Ors (1977) 31 FLR 431
[7] Ibid., at 455
[8] Kayne v Australian Broadcasting Commission Staff Association (1978) 34 FLR 104 at 109
[9] See Cameron v Australian Workers’ Union (1959) 2 FLR 45; Leveridge v Shop Distributive and Allied Employees’ Association (1977) 31 FLR 385; Allen v Townsend and Ors (1977) 31 FLR 431; Lovell and Ors v Federated Liquor and Allied Industries Employees’ Union of Australia (1978) 35 FLR 72
[10] Cameron v Australian Workers’ Union (1959) 2 FLR 45
[11] Ibid., at 59
[12] See Cameron v Australian Workers’ Union (1959) 2 FLR 45; Leveridge v Shop Distributive and Allied Employees’ Association (1977) 31 FLR 385; Allen v Townsend and Ors (1977) 31 FLR 431; Lovell and Ors v Federated Liquor and Allied Industries Employees’ Union of Australia (1978) 35 FLR 72
[13] Re Stepleton & Ors (1983) 5 IR 341
[14] Ibid., at 352
[15] Rule v AWU (1985) 12 IR 39
[16] Ibid., at 50. In this case the rules under consideration imposed five year and two year qualification periods, both of which were found to impose oppressive and unreasonable conditions on members.
[17] Lovell and Ors v Federated Liquor and Allied Industries Employees’ Union of Australia (1978) 35 FLR 72
[18] Ibid., at 711-717
[19] Bucknell v PKIU (1981) FLR 258 at 10
[20] Paragraph 142(1)(c), for full citation of see endnote 2 above
[21] Riordan v Federated Clerks Union of Australia (1952) 74 CAR 5
[22] Ibid., at 6
[23] E2023/1, Australian Maritime Officers' Union, The (AMOU) | Fair Work Commission (fwc.gov.au)
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