Traffic Management Association of Australia

[2023] FWCD 8

[2023] FWCD 8

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

Traffic Management Association of Australia

(R2023/42)

CHRIS ENRIGHT MELBOURNE, 27 JULY 2023

Alteration of other rules of organisation.

1. On 5 May 2023 the Traffic Management Association of Australia (the TMAA) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules. Further material in support of the alterations was lodged on 22 June 2023.

1. The TMAA seeks certification of the alterations under section 159 of the Fair Work (Registered Organisations) Act 2009 (the Act).

1. On the information contained in the notice and declaration, I am satisfied the alterations have been made under the rules of the organisation.

1. The alterations were lodged on 5 May 2023, 176 days after they were transacted.

1. Regulation 126(1) of the Fair Work (Registered Organisations) Regulations 2009 requires particulars of rule alterations to be lodged within 35 after the alteration is made, or within an additional period allowed by the General Manager.[1]

1. The TMAA have requested I allow an additional period for the lodgement of the notice of particulars. The TMAA outlined a series of issues which arose around or after the date the alterations were transacted and – in the TMAA’s submission – hindered the timely lodgement of the particulars.[2] These included the unexpected resignation of the Executive Officer; the staff member who took on the administrative tasks experiencing severe illness and other challenges related to staffing.[3]   

1. I have no reason to doubt the TMAA’s account for the delay in lodgement of the notification. The TMAA does not appear to have a history of lodging applications for the certification of rule alterations out of time. It is unsurprising that a registered organisation with a relatively small professional and administrative support team may be hindered by unexpected resignations or severe illness. In the circumstances I allow an additional period, until 5 May 2023, for the lodgement of the notice of particulars. However, I remind the TMAA that the granting of an additional period is discretionary and that it is incumbent upon registered organisations to comply with their legislative obligations. Should the TMAA find itself in a similar situation in future, I recommend it contact the Commission for procedural assistance and advice to facilitate a timely application.

1. The particulars set out alterations to rules:

1 – Definitions
           5 – Membership of the Organisation; and
           6 – Management Committee.

1. The alterations:

   ·  change the name of the Executive Director to Chief Executive Officer; and

   ·  change the non-office positions of Division Chair and Division Vice Chair from being elected to being appointed.

1. On 22 June 2023, Anthony Simmons, Secretary, gave consent under subsection 159(2) of the Act for me 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 rule 6.13(a), “an Chief Executive Officer” is changed to “a Chief Executive Officer”; and

   ·   In proposed rule 1.1, the reference to “rule 6.14” is changed to “rule 6.13”.

1. In my opinion, the alterations comply with and are not contrary to the Act, the Fair Work Act2009, modern awards and enterprise agreements, are not otherwise contrary to law and were made under the rules of the organisation. I certify accordingly under subsection 159(1) of the Act.

DELEGATE OF THE GENERAL MANAGER

[1] Or—where the General Manager’s functions or powers under s.159 of the Act have been delegated under s.343A—his Delegate.

[2] See the 22 June correspondence from TMAA Secretary Anthony Simmons.

[3] Ibid.

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