The National Electrical Contractors Association

Case •

[2019] FWCD 3725

•

7 jUne 2019
[2019] FWCD 3725

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

The National Electrical Contractors Association

(R2018/299)

MURRAY FURLONG

MELBOURNE, 7 jUne  2019

Alteration of other rules of organisation.

  1. On 3 December 2018, the Western Australia Chapter (the Chapter) of The National Electrical Contractors Association (NECA) lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to the rules of the Chapter (the Chapter Rules).

  1. The particulars set out alterations to the following Chapter Rules:

·5 – Management; and

·8 – Chapter Office Bearers.

  1. In correspondence dated 14 February 2019, the Commission sought confirmation that:

·the meeting of the Chapter of 30 October 2018, in which the alterations were approved, was a meeting of the Chapter Council rather than a general meeting of members of the Chapter;

·the National Executive meeting of 22 November 2018, in which the alterations were further approved and endorsed, achieved a quorum;

·Mr Carl Copeland, who signed the declaration in his capacity as Chief Executive Officer dated 3 December 2018 which was filed with the notice of particulars pursuant to regulation 126 of the Fair Work (Registered Organisations) Regulations 2009 (the Regulations), was an officer of the Chapter; and

·a notice had been published on the website of the NECA noting the lodgement of the notice of particulars in accordance with regulation 126(1)(b) of the Regulations.

  1. In his declaration, Mr Copeland advised that eight members attended the apparent meeting of the Chapter Council of 30 October 2018, and that nine members voted in support of the alterations, one via proxy. Given this, the Commission also sought submissions regarding the use of such a a proxy in terms of the validity of the process undertaken to make the alterations in the present matter.

  1. In a further declaration dated 19 February 2019, Mr Copeland, Acting Chapter Secretary, confirmed the above. Regarding the issue of the use of proxy, the Chapter did not provide a separate submission but Mr Copeland makes reference to rule 13 of the Chapter Rules and sub-rules 35(a) and (b) of the rules of NECA (the National Rules).

  1. Rule 13 of the Chapter Rules provides as follows:

Voting at any general meeting of members of the Chapter shall be prescribed by rules 35(a) and 35(d) of the National Rules.  At all meetings of the Council, the Executive or any standing committee voting shall be on the basis of one person one vote with the exception that where the voting on any matter is evenly provided the Chairman shall have a second or casting vote [emphasis added].

  1. Sub-rule 35(a) of the National Rules provides as follows:

(a)       Every question submitted to any general meeting of members of the    Organisation or of a Chapter shall be decided in the first instance by a show                   of hands in which case every member present or represented and entitled to                 vote shall have one vote except for the Chairman who shall not be entitled to a   deliberative vote and in the case of an equality of votes shall both on a show of              hands and at a poll or ballot have a casting vote. At any general meeting   unless a poll or ballot is demanded by at least 3 members present in person or               by proxy entitled to vote, a declaration by the Chairman that a resolution has                  been carried or carried by a particular majority and an entry to that effect in        the minute book shall be conclusive evidence of the fact.

If a poll or ballot is demanded it shall be taken in such manner and at such   time and place as the meeting shall declare or in default of such declaration as            the President shall appoint either at once or after an interval or adjournment                or otherwise and the result of the poll or ballot shall be deemed to be the   resolution of the meeting at which a poll or ballot was demanded.  The demand               for a poll or ballot may be withdrawn.  When a poll or ballot is held each   member shall be entitled to only one vote [emphasis added].

  1. Sub-rule 35(b) of the National Rules concerns the number of votes each Chapter is entitled to at National Council meetings but makes no reference to voting by proxy. However, sub-rule 35(d) provides:

(d)       Voting by proxy is permitted at any general meeting.  Every instrument of            proxy shall be in writing in a form prescribed by the Executive or the Chapter                  Committee and shall be signed by the member or member's representative and   shall be forwarded to the National Secretary or the Chapter Secretary and be              in his hands not less than 24 hours before the time fixed for the commencement             of the meeting.  No person shall be appointed a proxy unless he is a member or   representative of a member of the Organisation [emphasis added].

  1. It is apparent that the above provisions pertain to voting by proxy at a general meeting of members of NECA or a Chapter of NECA. This is clear by the plain language used, namely, “any general meeting of members” or “any general meeting”, and is further reinforced by the reference to a “member or member’s representative” in sub-rule 35(d) with the latter being a reference to representatives of corporate members appointed pursuant to rule 8 of the National Rules.

  1. Neither the Chapter Rules nor the National Rules facilitate or make any reference to voting by proxy for the purpose of meetings of a Chapter Council. At common law, there is no right to vote by proxy.[1] Therefore, in the absence of a specific provision in the rules or constitution of an association or provided by statute, it is questionable whether a member of a committee of management can validly cast a vote by proxy.

  1. The declarations by Mr Copeland filed in this matter indicate that eight members of the Chapter Council attended the meeting of 30 October 2018 and that the resolution to make the alterations was carried unanimously. More specifically, the declarations indicate that the eight members who attended the meeting all voted in support of the proposed alterations with an additional vote purportedly made by proxy. Therefore, even in the absence of the purported vote by proxy, the requirements regarding quorum and the passing of resolutions at Chapter Council meetings were otherwise met.[2]

  1. I note that on the last occasion alterations to the Chapter Rules were made and certified, the same issue was considered by Delegate Enright in identical circumstances as those in the present matter. In The National Electrical Contractors Association [2015] FWCD 1722, he made the following findings:

[4] The Chapter Council consists of nine members and the Chapter Secretary. The declaration supplied with the notification attests that eight Council Members attended in person and that all eight of those members voted in support of the rule alteration. As such, the proxy vote was not required for either the quorum or the resolution approving the rule alterations. The question becomes then, whether the meeting or the vote were invalidated by the presence of an unauthorised proxy vote.

[5] The situation is analogous to when a person attends or votes at a meeting they are not qualified to attend. In Steuart v Oliver, Joske J stated that:

There is no general rule that where a person who is not a member of a body, whether this is due to disqualification or lack of qualification or otherwise, is present at a meeting of the body, participates in its proceedings or even votes, this necessarily invalidates either the vote or the whole of the proceedings at the meeting. The circumstances of each particular case have to be considered.

[6] In this instance, the unauthorised vote was not a stranger to the proceedings but another member of the Council and there is no suggestion that the proxy was delivered with anything other than a bona fide belief that it was allowed.5 In any event, the decision and quorum of the meeting itself did not turn upon the proxy’s presence. As such, I am satisfied that the proxy did not act to invalidate either the meeting or the vote [footnotes omitted].

  1. I adopt the reasoning of Delegate Enright set out above and find that the purported vote by proxy during the Chapter Council meeting of 30 October 2018 did not invalidate the resolution of the Chapter Council approving the alterations in the present matter. However, I urge the Chapter and NECA to consider making further alterations to either the Chapter Rules or the National Rules which clearly facilitate voting by proxy during Chapter Council meetings if such a practice is sought to be relied upon in carrying future resolutions.

  1. On the information contained in the notice, and the further declaration of Mr Copeland dated 19 February 2019, I am satisfied the alterations have been made under the rules of the organisation.

  1. The alterations to rules 5 and 8 establish a new office of Assistant Chapter Secretary which will:

·comprise part of the Chapter Council and Chapter Executive;

·be subject to direct election by the members of the Chapter and have a term of office of four years in accordance with rule 26 of the National Rules; and

·be subject to the same provisions of the National Rules regarding powers and functions, vacation of office, filling of casual vacancies and quorum as apply to the office of Chapter Secretary.

  1. New sub-rule 5(c)(ii) provides that, “as a transitional rule”, the inaugural office of Assistant Chapter Secretary may be filled as a casual vacancy by resolution of the Chapter Committee in accordance with rule 26(c) of the National Rules. Rule 26(c) of the National Rules provides that any vacancy arising in the office of Chapter Secretary may be filled by appointment by the Chapter Committee and the person so appointed shall hold office until an election is held for that office. It further provides that such an election shall be held and completed within three months of the date from which the vacancy occurred.

  1. Thus, the effect of new sub-rule 5(c)(ii) appears to be that, upon the establishment of the office of Assistant Chapter Secretary, the Chapter Council may, by resolution, appoint someone to hold that office. The person so appointed shall hold office until the completion of the first election for that office which must occur within three months of the office being established. In this way, the establishment of the office of Assistant Chapter Secretary will essentially be deemed to create a casual vacancy.

  1. In this regard, an issue arises as to whether this aspect of the alterations is consistent with s. 143(1)(a) of the Fair Work (Registered Organisations) Act 2009 (the Act) which provides as follows:

(1)        The rules of an organisation:

(a)       must provide for the election of the holder of each office in the                    organisation by:

(i)       a direct voting system; or

(ii)       a collegiate electoral system that, in the case of a full-   time office, is a one-tier collegiate electoral system…

  1. In Bicknell v Amalgamated Engineering Union (1969) FLR 215 (Bicknell), the Commonwealth Industrial Court considered whether rules of an organisation which provided for the appointment of persons to offices complied with the relevant provisions of the Conciliation and Arbitration Regulations which required the rules of an organisation to provide for the election of its officers.[3] In holding that they did so comply, the majority (Spicer CJ and Smithers J) observed that the relevant regulation:

…does not in terms state that the rules shall provide that every office shall in all   circumstances be filled by election. Accordingly a rule providing for an appointment in special circumstances does not inevitably contravene the literal requirements of [the regulation]. Where there is such a rule the question is whether notwithstanding its           presence it can be said of the organization that its affairs are regulated by rules which,       looked at in their entirety, provide for the election of the specified bodies and      officers...

…

Where a rule contains a provision for appointment in lieu of election its validity will        depend upon the nature of the appointment authorized, the circumstances in which the   appointment is permissible, the nature of the office, the constitutional structure of the         organization and all the rules relating to the office concerned.[4]

  1. Similarly, Kerr J noted that the determination of whether the rules of an organisation provide for the election of an officer is “a matter of a degree to be judged in all the circumstances of the particular union and its rules. It does not follow that no appointments can ever be made to fill casual vacancies.”[5]

  1. Bicknell was decided before the relevant provision of the Conciliation and Arbitration Act 1904 (section 133) was amended in the manner currently reflected in s. 143(1)(a) of the Act. In Re Airline Hostesses’ Association (1980) 37 ALR 119 (Re Airline Hostesses’ Association) the Full Court of the Federal Court considered s. 133(1)(a) of the Conciliation and Arbitration Act 1904 which was drafted in terms not materially different to s. 143(1)(a) for the purposes of the present matter. The majority held that this provision required the rules of an organisation to provide that each holder of an office within an organisation was elected to that office rather than requiring an election with respect to each office within an organisation.

  1. In reaching this conclusion, Bowen CJ (with whom Evatt and Northrop JJ agreed) noted the importance of not only the democratic but the efficient representation of the membership of an organisation and, in this regard, pointed to several authorities which found that the appointment to an office is permissible in certain circumstances and cited the above statement of Kerr J in Bicknell with approval.[6]

  1. A strict interpretation of s. 143(1)(a) of the Act would suggest that the rules of an organisation must never permit the filling of an office in an organisation other than by an election subject to the limited provision for appointment to an office afforded by s. 146 of the Act. However, in my view, Bicknell and Re Airline Hostesses’ Association suggest that s. 143(1)(a) is to be construed by having regard to the rules of the organisation as a whole, the nature of the office, the potential term of office of a person filling the office other than by election and the broader context pertaining to the organisation. In other words, the relevant determination is one of degree and substance rather than a strict binary positive or negative proposition.

  1. In my view, new sub-rule 5(c)(ii) does not render the Chapter Rules inconsistent with s. 143(1)(a) of the Act. Construing this provision together with rule 26(c) of the National Rules, it is apparent that any person potentially appointed to the office of Assistant Chapter Secretary upon its establishment will only be entitled to hold that office for a maximum period of three months. A direct election across the membership of the Chapter must be conducted and completed for this office in accordance with rule 26(b) of the National Rules within this period of time. After the inaugural election for this office is conducted, the Chapter Rules provide that the office must be filled by ordinary election except in the circumstances of a vacancy arising whereupon a person may again be appointed for a maximum period of three months pending a further election.

  1. Given that the appointment to the office of Assistant Chapter Secretary contemplated by new sub-rule 5(c)(ii) may potentially occur only once, the limited period in which a person so appointed may hold that office, the requirement for an election to be completed within a three month period after the establishment of the office and the further Chapter Rules otherwise providing for the direct election of the office, I am satisfied that, overall, the Chapter Rules provide for the election of each holder of office within the Chapter, including the Assistant Chapter Secretary.

  1. 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

<PR708832>


[1] For example see Magner S, Joske’s Law and Procedure at Meetings in Australia 9th ed, Law Book Co, 2001 at p. 27 and Lang A, Horseley’s Meetings – Procedure, Law and Practice 5th ed, LexisNexis Butterworths, 2006 at pp.200-201.

[2] Chapter Rules 12, 15.

[3] Regulations 115(1)(d) and 115(2) of the Conciliation and Arbitration Regulations.

[4] Bicknell v Amalgamated Engineering Union (1969) 15 FLR 215 at 220-223 (Spicer CJ and Smithers J).

[5] Ibid at 230 (Kerr J).

[6] Ibid at 115-117 (Bowen CJ).

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National Electrical Contractors Association, The-Western Australia Chapter [2015] FWCD 1722