The Breweries and Bottleyards Employees' Industrial Union of Workers of Western Australia

[2014] FWCD 24

[2014] FWCD 24

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

The Breweries and Bottleyards Employees' Industrial Union of Workers of

Western Australia

(R2013/80)

MR ENRIGHT	MELBOURNE, 6 JANUARY 2014
Alteration of other rules of organisation.

[1] On 4 July 2013 The Breweries and Bottleyards Employees' Industrial Union of Workers of Western Australia (the BEU) lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to the rules of the organisation. On 30 December 2013, the BEU provided further information to the Commission regarding the procedure undertaken to alter the rules.

[2] The particulars provide for alterations to rules 4, 5, 35 and 44 and the insertion new rules 10.A, 10.B, 10.C, 10.D and 10.E into the rules of the BEU. The alterations were made, among other things, for the purpose of complying with provisions of the Fair Work

(Registered Organisations) Amendment Act 2012 (the Amendment Act) regarding the rules

of registered organisations. In particular, the alterations to rule 4 and the insertion of new rules 10.A, 10.B, 10.C, 10.D and 10.E provide for specified disclosures, the implementation of policies relating to expenditure and the mandatory training of officers with duties that relate to the financial management of the organisation.

[3] In addition to the alterations for the purpose of complying with the Amendment Act,

other alterations go to changing some of the objects of the organisation, dealing with the
dispersal of funds on dissolution, and the rights of honorary members.

Amendment Act - Training rule

[4] The rules largely incorporate the requirements of the Amendment Act. However, for

the following reasons, I believe the rules will not meet all of the requirements of the
Amendment Act.

[5] As a result of the provisions of the Amendment Act, section 154D of the Fair Work (Registered Organisations) Act 2009 (the RO Act) mandates inclusion of a rule that officers

undertake approved training. Subsection 154D(2) of the RO Act requires any such rule to compel the officer to complete the training within 6 months after the person begins to hold the office and that such training covers each of the officer’s financial duties.

[2014] FWCD 24

[6] Sub rule 10.E of the altered rules requires all officers whose duties relate to financial management to undertake training, but does not specify that this training must be undertaken within the requisite 6 month period, nor that that training covers each of the officer’s financial duties. Consequently, sub rule 10.E does not meet all of the requirements of section 154D.

[7] Notwithstanding this omission, the substance of the rule alterations for the purpose of complying with the Amendment Act does comply with the statutory requirements. Although a further alteration is needed this does not prevent the certification of the alterations that have been made. However, the omission of the requirement for training that covers each of the officers’ financial duties to take place within 6 months after the person begins to hold office will need to be remedied by the organisation as expeditiously as possible in order to ensure full compliance with the provisions of the Amendment Act.

Honorary Members

[8] Rule 35 provides that a member who has ceased to be employed in the industry can be granted honorary membership by the Committee of the organisation. Currently sub-rule 35(3) entitles honorary members to speak but not vote at meetings of the organisation. It is clear that the under current rules honorary membership is not membership as contemplated by the RO Act such that the full benefits are accorded, but is a means of recognising, at the discretion of the Committee, long serving members who are no longing working.

[9] The proposed alteration to sub-rule 35(3) entitles ‘non financial honorary members’ to speak but not vote at meetings. A potential consequence of this alteration is that financial honorary members would be able to vote at meetings and thereby become entitled to full participation in the affairs of the organisation. This effectively grants membership to financial honorary members.

[10]      The RO Act provides that an association of employees cannot be registered under the

Act if it has a member who is not one of the types of persons specified in subsection 18B(3). Subsection 18B(3) lists employees (as defined under the RO Act and various state Acts), independent contractors and officers of the association. The potential effect of proposed sub- rule 35(3) is to enable the discretionary granting of membership to persons who are not entitled to membership of a registered organisation of employees. If such persons were to become members, the BEU’s registration may be cancelled by the Commission in accordance with s30(1)(c)(v) of the RO Act.

[11] In my view, sub-rule 35(3) is contrary to subsection 18B(3) of the RO Act, and I am therefore unable to certify this alteration.

[2014] FWCD 24

Severability

[12] I must now turn my mind to whether or not the alteration to sub-rule 35(3) is severable from the remainder of the alterations. In reaching my decision, I refer to the authorityIn Re Food Preservers’ Union of Australiai in which the question of severing rules was considered. The majority held that:

....where an organisation has made alterations to a number of its rules, each rule and alteration being completely independent of any other rule or alteration, the Registrar would be free to give his certificate with respect to some of those rule alterations and to refrain from giving his certificate with respect to others. On the other hand, where alterations to rules are dependent upon other alterations to rules, difficulties arise where the certificate is given to some of the alterations and not to others.ii

[13]      Their Honours go on to note:

There would need to be a full examination of all the rules to ascertain whether the meaning and effect of the rules to which the certificate had been given had been altered or modified by the fact that some rules or parts of rules have not come into effect.iii

[14] The question of severability therefore turns upon whether or not the impugned alteration can be regarded as completely independent of the remaining alterations. As noted in paragraphs [2] and [3] of this decision, the other alterations at hand are made for the purpose of complying with provisions of the Amendment Act, changing some of the objects of the organisation, and dealing with the dispersal of funds on dissolution. None of the other alterations deal with the rights and obligations of honorary members. Consequently, it is my view that sub-rule 35(3) is severable from the other alterations contained in the notice of particulars.

[15] On the information contained in the notice, and the subsequent communication to the Commission on 30 December 2013, I am satisfied the alterations have been made under the rules of the organisation.

[2014] FWCD 24

[16] In my opinion, with the exception of sub-rule 35(3), the alterations comply with and are not contrary to the RO Act, the Amendment 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

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i (1988) 79 ALR 138

ii Re Food Preservers’ Union of Australia and Another (1988) 79 ALR 138 per Northrop & Ryan JJ at 145.

iii Ibid at 146.