The Civil Air Operations Officers' Association of Australia
[2019] FWCD 5865
•16 September 2019
| [2019] FWCD 5865 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
The Civil Air Operations Officers' Association of Australia
(R2019/81)
| MURRAY FURLONG | MELBOURNE, 16 September 2019 |
Alteration of other rules of organisation.
On 28 June 2019 The Civil Air Operations Officers' Association of Australia (the Association), lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to its rules.
Further submissions in support of the application were received 23, 27 and 29 August and 3 September 2019.
On the information contained in the notice and further submissions, I am satisfied the alterations have been made under the rules of the organisation.
The particulars set out alterations to Rules
3 – Definitions
7 – Organisation27 – Voting rights at National Executive and Committee of Management meetings – determination and allocation
34 – Holding of office - Divisional Delegate qualifications and tenure.
The alteration to Rule 3 modifies the definition for the term ‘Geographically Dispersed Divisions’. The new definition captures the restructuring of the Association outlined in the alterations to Rule 7 (see below).
Alterations to Rule 7 have been made to restructure the divisions of the Association. Instead of having divisions comprised of the Adelaide Towers and Terminal Control Units, the Regional District, or the Cairns Tower and Terminal Control Unit, there are now new divisions comprised of Northern Towers, Southern Towers and Western Towers. The coverage of the Melbourne Towers and TCUs Division has also been expanded, and the towers included in the Northern, Southern and Western Towers Divisions are also identified.
Rule 27 has been altered to reflect the restructure described above. The alterations to this rule create transitional provisions for the determination and allocation of voting rights at National Executive and Committee of Management Meetings until Divisional Delegates of the new Divisions have been elected.
The alterations to Rule 34 have also been made as a consequence of the restructure. They create provisions for the new Divisional Delegates’ first election. The alterations also provide that the terms of office for the Divisional Delegates whose Divisions are being replaced conclude as soon as the new officers have been elected. Finally, the relevant pre-restucture offices are abolished as soon as the new officers have been elected.
The proposed alterations to Rule 34, therefore, involve the abolition of the three following offices and the truncation of the current term of office for each affected position:
· Divisional Delegate for Adelaide Towers and Terminal Control Units
· Divisional Delegate for Regional District, and
· Divisional Delegate for Cairns Tower and Terminal Control Units.
I will now turn to the principles relevant to a restructure that involves the abolition of an office.
The following principles are relevant to the restructure of organisations[1]:
· an organisation has the right to restructure itself as it sees fit [Williams v Hursey (1959) HCA 51, 103 CLR 30];
· however, 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 [majority in Saint v Australian Postal and Telecommunications Union & Ors (1976) 13 ALR 639];
· in addition, 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 [Roughan v Australasian Meat Industry Employees’ Union (1992) 36 FLR 536].
These principles indicate that the alterations should be certified unless they are found to be not bona fide or that they have an oppressive, unreasonable or unjust effect on members. I will first consider whether the abolition of the offices is not bona fide.
On 3 September 2019, the Association provided two documents outlining the reasons behind the restructuring of its Divisions. Document DP001 ‘Division changes’, provided to the National Executive in 2018, indicates that due to the integration of certain Terminal Control Units led to reduced member numbers in some Divisions and increased member numbers in others. The Association therefore signalled its intent to examine whether or not a restructure was required in order to ensure member interests were best represented.
The second document provided, Working Paper 001, is a direct product of the discussions around DP001 and provides an originating proposal for the rules to be altered in order to restructure the Association. These documents suggest that, in the absence of evidence to the contrary, the objective of the Association was to restructure its affairs in a way that would most benefit the members and provide proportional representation to National Executive.
At the time these alterations were lodged with the Commission the relevant Divisional Delegate positions were filled thus:
·Adelaide Towers and Terminal Control Units – Mr Paul Hart
·Regional District – Mr Peter Allan Murdoch, and
·Cairns Tower and Terminal Control Units – Mr Peter Sullivan.
Staff of the Commission requested statements from each affected officer to ascertain whether they were aware of the alterations.
The office-bearers actively engaged with Commission staff and provided statements in support of the application to the Commission on 27 and 29 August 2019. These statements confirmed that each office-bearer was aware of the alterations and understood the implications for their office. I also note that the officials were part of the collective body which transacted the current changes to the Association’s rules. The material supplied the Association indicates that the rationale behind the restructure was purely operational. In the circumstances, I am positively satisfied that the alterations are not other than bona fide .
I must now consider whether the abolition of the offices has an oppressive, unreasonable or unjust effect on members or applicants for membership having regard to the objects of the Fair Work (Registered Organisations) Act 2009 (the Act).
Subsection 142(1) of the Act outlines the general requirements for rules. Subsection 142(1)(c) provides that the rules of an organisation
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 2009, are oppressive, unreasonable or unjust.
Parliament’s intention in enacting the Act is set out in section 5. The section provides for certain standards, which include:
· ensure that employer and employee organisations are representative of and accountable to their members, and are able to operate effectively;[2]
· encourage the efficient management of organisations and high standards of accountability of organisations to their members;[3] and
· provide for the democratic functioning and control of organisations[4].
The alterations do not fundamentally alter the decision-making structure of the organisation. There is no loss of representation to members. In fact, the restructure maintains largely proportional representation for the Association’s Divisions on the National Executive, in the context of the newly integrated Terminal Control Units. In addition, the alterations enable the organisation to operate effectively. In each of these respects the alteration reflects Parliament’s intention in enacting the Act. I have not found anything to otherwise suggest that the alterations will have an oppressive, unreasonable or unjust effect on members of the organisation under section 142(1)(c).
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 Fair Work (Registered Organisations) Act 2009.
DELEGATE OF THE GENERAL MANAGER
[1] See Independent Education Union of Australia [2015] FWCD 8168 at [4]
[2] Fair Work (Registered Organisations) Act 2009, section 5(3)(a).
[3] Ibid, section 5(3)(c).
[4] Ibid, section 5(3)(d).
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