Traffic Management Association of Australia

[2019] FWCD 2823

[2019] FWCD 2823

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

Traffic Management Association of Australia

(R2019/34 & R2019/73)

MURRAY FURLONG MELBOURNE, 24 JULY 2019

Alteration of other rules of organisation.

1. On 2 April 2019 the Traffic Management Association of Australia lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules (R2019/34).

1. The particulars set out alterations to Rules:

1 – Definitions
5 – Membership of the Organisation

1. The alterations provide Associate status to individuals and groups who do not meet the criteria for membership. Under the current rules, these individuals and groups are recognised as Associate Members. Under the proposed alterations, these bodies will instead be called Associates.

1. Under the organisation’s rules, Associates have certain rights, privileges and obligations. They do not, however, have all the rights enjoyed by ordinary members.

1. 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

1. Regulation 126 of the Fair Work (Registered Organisations) Regulations 2009 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.

1. Considering first the requirement of regulation 126(1)(a), the alterations were made by a general meeting of the organisation held on 7 February 2019. The notice of particulars were lodged on 2 April 2019 – at least 53 days after the alterations were made. In light of this, staff of the Commission requested that the organisation provide correspondence explaining why the notice was lodged out of time (the extension of time submission). The extension of time submission dated 3 April 2019 was received on 4 April 2019.

1. The organisation submitted that although the particulars were lodged with the Commission out of time, they had in fact been lodged with the Registered Organisations Commission (the ROC). I note the documents were lodged with the ROC on 14 February 2019.

1. Regulation 126(1) provides me with a discretion to allow any additional period for lodgment 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). I note that the organisation does not appear to have a history of lodging notice out of time with the Commission. I therefore allow an additional period, until 2 April 2019, for the lodgment of the alterations. However, I remind the organisation that the granting of an additional period is at my discretion and that it is incumbent on registered organisations to comply with the relevant legislative obligations.

1. 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.

1. An examination of the information posted on the organisation’s web site found that the information published was not of the nature required by regulation 126(1)(b). Although the organisation had published an outline of the proposed rule changes, regulation 126(1)(b) requires an organisation to publish on its web site a notice that the notice of particulars has been lodged with the Commission.

1. Following discussions with staff of the Commission, the correct information was posted on the organisation’s web site on or around 23 April 2019. In any event, this was not done within the 35 day timeframe. Regulation 126(1) provides me with the discretion to allow any additional period for the publication of the notice. In light of the fact that the organisation made a bona fide attempt to ensure this regulation was complied with during their subsequent rule transaction (described below), I grant the additional period.

1. On 30 April 2019 and 17 July 2019 Camille O’Meara, the organisation’s Secretary, gave consent, under subsection 159(2) of the Act, 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 rule 5.1(a): add the word and following the semicolon;

   ·   In proposed rule 5.4(2): the word time has been inserted between from and to;

   ·   In proposed rule 5.4: the various paragraphs be labelled alphabetically instead of numerically;

   ·   In proposed rule 5.4(k): replace 7 with (i) and replace (8) with (j); and

   ·   In proposed rule 5.4(l): replace 5.3 with 5.4.

1. On 1 May 2019 staff of the Commission identified a deficiency in the proposed rules; the proposed changes were not reflected in the Definition section of the rule book. As a consequence, the organisation’s rules were internally inconsistent. A process of engagement followed.

1. On 4 May 2019 the organisation notified the Commission that it intended to make further amendments to the Definition section of its rule book at the earliest possible opportunity. Upon receipt of this information, the Commission agreed to not finalise the initial alterations until further rule alterations were lodged.

1. On 13 June 2019 the organisation lodged with the Commission a second notice and declaration setting out particulars of alterations to its rules (R2019/73).  

1. The particulars set out alterations to Rule 1. The alterations remedy the deficiency identified above.

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

1. 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 Act.

DELEGATE OF THE GENERAL MANAGER

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