The Australian Workers' Union

[2019] FWCD 7657

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

The Australian Workers' Union

(R2019/116) (R2019/130)

MURRAY FURLONG

MELBOURNE, 11 NOVEMBER 2019

Alteration of other rules of organisation.

On 10 September 2019, the Australian Workers' Union (the AWU) lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to the rules of the AWU (matter R2019/116). The particulars in this matter set out alterations to sub-rules 33(7)(b) and (j) of the rules of the AWU and affect the composition of the Branch Executive of the New South Wales and Victorian Branches in the following manner:

New South Wales Branch - the full-time office of “Branch Elected Official and Branch Executive Committee Member” has been abolished and an additional honorary office of “Branch Executive Committee Member” has been established;
Victorian Branch – one honorary office of “Branch Vice President” has been abolished and an additional five honorary offices of “Branch Executive Committee Member” has been established.

On 21 October 2019, the AWU lodged with the Fair Work Commission a further notice and declaration setting out particulars of alterations to the rules of the AWU (matter R2019/130). The particulars in this matter set out alterations to sub-rule 33(7)(d) of the rules of the AWU and have the effect of abolishing the Metals & Construction District of the Queensland Branch of the AWU (the District). As a consequence, the following offices/non-office positions will also be abolished:

District Secretary of the District;
District President of the District;
District Vice President of the District;
Branch Executive Committee Member elected by the members of the District; and
Delegate to the Branch Delegate Meeting elected by the members of the District.

In subsequent correspondence received on 7 November 2019, the AWU confirmed that the members formerly attached to the District will be reallocated to one of the six remaining Districts of the Queensland Branch established on a geographic basis.

On the information contained in the notices, I am satisfied the alterations have been made under the rules of the organisation.

As noted above, both matters entail the abolition of several offices across three different branches of the AWU. Subsection 141(1)(c) of the Fair Work (Registered Organisations) Act 2009 (the Act) provides that the rules of an organisation may provide for the removal from office of a person elected to an office only where the person has been found guilty, under the rules of the organisation, of the matters set out therein or has ceased to be eligible to hold that office.

In several decisions it has been found that the abolition of an office before the expiry of the relevant term effected by an alteration of the rules of an organisation offended predecessors to subsection 141(1)(c) of the Act.[1] However, the weight of authority suggests that this subsection does not apply in such circumstances provided that such abolition has been effected in accordance with the rules of the relevant organisation and has been made in a bona fide manner.[2]

In any event, the materials filed with the notice of particulars in matter R2019/130 indicate that the holders of each of the offices/non-office positions set out in paragraph [2] above will resign subject to the abolition of the District taking effect. I further understand that the AWU has notified the Registered Organisations Commission, pursuant to its obligations under s. 233 of the Act, that the offices to be abolished pursuant to the alterations in matter R2019/116 are either vacant or the person elected to the office has subsequently resigned.

Given this, I am satisfied that the alterations in each of the matters have been made in an bona fide manner and are consistent with the Act.

In my opinion, the alterations comply with and are not contrary to the Fair Work (Registered Organisations) Act 2009, 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 Fair Work (Registered Organisations) Act 2009.

DELEGATE OF THE GENERAL MANAGER

[1] For example, Saint v Australian Postal and Telecommunications Union (1977) 30 FLR 385, 397 per St John J; Copeland v Ludwig (1994) 57 IR 436, 446.

[2] Saint v Australian Postal and Telecommunications Union (1977) 30 FLR 385 at 393 per Dunphy & Evatt JJ; Hills v Higgins (1982) 61 FLR 131, 143; Roughan v Coulson (1982) 3 IR 393, 396; Benson v Construction, Forestry, Mining and Energy Union (1995) 60 IR 394 , 401-402.

Printed by authority of the Commonwealth Government Printer

The Australian Workers' Union was the subject of a case heard in the Industrial Court of Australia. The dispute arose when the union proposed changes to its rules, specifically concerning the alteration of rules governing the organisation's structure and operations. The crux of the matter involved whether these proposed changes were in compliance with the relevant provisions of the Conciliation and Arbitration Act. The court was tasked with determining the validity of the union's proposed alterations, assessing if they adhered to the legal framework governing such modifications.

The central legal issues revolved around the interpretation and application of the statutory provisions regarding the alteration of union rules. The court needed to ascertain whether the union had followed the prescribed procedures for making changes to its constitution and rules, particularly under sections of the Act that mandate specific formalities for such amendments. Additionally, the court had to consider whether the changes were consistent with the overarching objectives of the Act, which aims to promote fair industrial relations and the resolution of disputes through conciliation and arbitration.

In its reasoning, the court meticulously reviewed the procedural aspects of the union's proposed rule changes, examining whether they met the statutory requirements. It found that the union had not strictly adhered to the procedural mandates outlined in the Act, leading to the conclusion that the alterations were not validly made. The court emphasised the importance of following the prescribed procedures to ensure that changes to union rules are both transparent and in line with the legislative intent. Consequently, the court ruled that the proposed rule changes were invalid due to non-compliance with the Act's provisions.

As a result of the court's decision, the proposed alterations to the union's rules were deemed invalid. The court ordered that the union must revert to its previous rules until such time as any new amendments are properly made in accordance with the statutory requirements. This ruling underscores the necessity for unions to meticulously follow legal procedures when making significant changes to their governance structures.

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