The Civil Air Operations Officers' Association of Australia
[2019] FWCD 3423
•25 July 2019
| [2019] FWCD 3423 |
| 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
(R2019/45)
| MURRAY FURLONG | MELBOURNE, 25 July 2019 |
Alteration of other rules of organisation.
On 24 April 2019 The Civil Air Operations Officers' Association of Australia (the Association) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules.
On the information contained in the notice, I am satisfied the alterations have been made under the rules of the organisation.
Requirements of Regulation 126
Regulation 126 of the Fair Work (Registered Organisations) Regulations 2009 (the Regulations) relevantly provides
(1)For subsection 159(1) of the Act, if an alteration of the rules (other than the eligibility rules) of an organisation is made, the organisation, within 35 days after the alteration is made, or within any additional period the General Manager allows, must:
(a)lodge with the FWC a notice setting out the particulars of the alteration; and
(b)if the organisation has a web site – publish on its web site a notice that the notice mentioned in paragraph (a) has been lodged.
(2) …
(3)The General Manager may refuse to certify, under subsection 159(1) of the Act, an alteration of the rules unless this regulation is complied with.
Considering first the requirements of r126(1)(a), the alterations in this application were transacted by a meeting of National Executive held 15 March 2018. The notice of the particulars was lodged on 24 April 2019, more than one year after the alterations were made.
On 30 April 2019 a supplementary declaration by Tom McRobert, the President of the Association, was received requesting an additional period to comply with r126. In the declaration, Mr McRobert advised that the notice of alterations had mistakenly been directed to an email address that is not used by the Commission on 3 April 2018. A further email addressed to the General Manager inquiring about the matter was sent to a similarly incorrect address on 29 January 2019. The Association only recently became aware of the error. Copies of the emails sent to the incorrect address were provided with the declaration. Once the error was discovered the organisation took swift action to remedy the error by lodging with the Commission.
As highlighted above, Regulation 126 of the Regulations provides me with a discretion to allow any additional period for lodgement of the notification. The granting of an additional period is not as of right. It is incumbent on registered organisations to comply with the obligations set down in the Fair Work (Registered Organisations) Act 2009 (the Act). However, having considered the reason for the delay, and the evidence affirming that had the notification been directed to the correct address it would have been made within the required period, I am willing to allow an additional period for lodgement.
Regulation 126(1)(b) requires that the organisation publish a notice on its website within 35 days of the alterations being made that the alterations have been lodged with the Commission. During discussions with Commission staff it was discovered that the meaning of r126(1)(b) had been misconstrued and the Association had failed to place a notice that the alterations were lodged, either when originally sent to the incorrect email address on 3 April 2018 or when formally lodged on 24 April 2019.
Following a meeting with Commission staff on 16 May 2019, the Association caused notice that the alterations had been lodged with the Commission to be placed on their website forthwith. At the request of Commission staff, the Association also provided supplementary information advising what steps had been taken to bring the alterations to members’ awareness aside from the notice required under r126(1)(b). This information was received 3 June 2019 and confirmed that the working papers had been available for members to review on the Association’s website from 27 February 2018, and that the minutes of the meeting at which the alterations were transacted had been published on the website in June 2018. The Association also provided an undertaking that future notifications of rule alterations lodged with the Commission will be published to the website as soon as they have been lodged with the Commission.
The Association has requested that an additional period also be allowed for the publication of the web notice, which it completed on 17 May 2019. Based on the information provided, as outlined above, I am satisfied that the members’ of the Association were aware that the rule alterations were underfoot and that an application would be made to the Commission. I would remind the Association of its obligations under the Act and Regulations and request that it be mindful that it is not as of right that an additional period be allowed either for late lodgment or publication of a web notice when lodgment has been made. However, as the alterations are relatively minor (highlighted below) and given the Association’s active engagement with the Commission and proactive approach to correcting the errors, I will allow an additional period until 24 April 2019 and 17 May 2019 for lodgment and the web notice respectively.
Particulars of Alterations
The particulars set out alterations rules
3 - Definitions
10 – Type and classification [of Membership]
11 – Admission or readmission
14 – Resignation, suspension and termination15 – Misconduct
21 – The Committee of Management – constitution, duties and powers
22 – National Executive – constitution, duties and powers
23 – Meetings – Committee of Management
24 – Meetings – National Executive
25 – Proxies27 – Voting rights at National Executive and Committee of Management meetings – determination and allocation
28 – Common seal of the Association
29 – Meetings - Divisions
30 – Means of alternative voting
31 – Returning Officers – appointment, duties and powers
32 – Scrutineers – appointment, duties and powers
34 – Holding of office – Divisional Delegate qualifications and tenure
35 – Conduct of ballots
36 – Removal of elected representatives
38 – Holding of office – Committee of Management qualifications and tenure
41 – Control and disbursement of funds
42 – Reimbursements
43 – Audit
44 – Necessitous circumstances fund (loss of licence)
48 – Affiliations
49 – Alterations to the rules and by-laws
50 – Disputes – settlement procedures
51 – Plebiscites
52 – Special meetings
53 – Submission of proposals
57 – Transitional provisions
58 – Dissolution of the Association
Overall, the alterations make minor changes to the content of each rule. Gender neutral terminology is now used throughout the rulebook, and references to the National Executive have been corrected to amend a typographical error.
On 13 June 2019, Tom McRobert, President of the Association, gave consent, under subsection 159(2) of the Fair Work (Registered Organisations) Act 2009, for the Delegate to make various amendments to the alterations for the purpose of correcting typographical, clerical or formal errors. Accordingly the following corrections have been made:
· In proposed sub-rule 21(f)(8) the position title, ‘Vice President-Finance’ has been amended to include a hyphen;
· In proposed sub-rule 25(a)(1) the sub-rule has been amended to end in a semi-colon rather than a colon;
· In proposed sub-rule 49(a)(3) references to the Industrial Registrar have been updated to reference the General Manager of the Fair Work Commission (or her Delegate);
· In proposed sub-rules 57(a) and 58(b) the open quotation mark at the end of the sentence has been removed; and
· The reference to alterations made to sub-rule 32(z)(iii) has been amended to correctly reflect alterations made to sub-rule 3(z)(iii).
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
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