Transport Workers' Union of Australia
[2024] FWCD 1075
•20 DECEMBER 2024
| [2024] FWCD 1075 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Transport Workers' Union of Australia
(R2024/179 and R2024/182)
| CHRIS ENRIGHT | MELBOURNE, 20 DECEMBER 2024 |
Alteration of other rules of organisation.
On 11 December 2024 the Transport Workers' Union of Australia (TWU) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules, to which R2024/179 refers.
On the same day, the TWU lodged with the Commission another notice and declaration setting out particulars of alterations to its rules, to which R2024/182 refers.
Further information in support of the alterations was provided on 17 December 2024.
The TWU seeks certification of the alterations under section 159 of the Fair Work (Registered Organisations) Act 2009 (the Act).
The particulars in R2024/179 set out alterations to Rule 8.
The particulars in R2024/182 set out alterations to Rules 6, 7, 10, 25, 72, 73, 92 and Rules 1, 3 and 23 of Annexure F. The particulars further delete Rules 93 and 94 and Rule 2 of Annexure F.
Rule altering procedure
Subrule 33(2)(c) states that the National Secretary shall provide notice of National Council meetings to all branches. The declarations in both matters advise that the National President provided notice of the National Council meeting.
Therefore, it appears that in making the alterations, the procedure required by Subrule 33(2)(c) was not strictly complied with. In accordance with paragraph 159(1)(c) of the Act, I am required to be satisfied that the alterations have been made under the rules of the organisation.
As discussed in Master Builders’ Construction and Housing Association of the Australian Capital Territory[1], it is necessary to consider whether a failure to strictly comply with the rule-altering procedure invalidated the decision to alter the rules. In this matter, I need to consider whether the failure to have the National Secretary give the notice invalidated the resolutions to make the rule alterations.
To assess this question, it is necessary to consider the decision of the High Court in Project Blue Sky[2] and its application by a Full Bench of this Commission in Re: Australian Principals Federation.[3] In the context of the rules of registered organisations these authorities indicate that the issue is not whether an instance of non-compliance has occurred (and as an inevitable consequence the decision to alter the rules is invalidated). Instead, the issue is whether an act which does not comply strictly with the rules has no effect. To determine this, regard must be given to the language, purpose, scope and object of the relevant provisions.
Applying this reasoning to the facts before me, the purpose of Subrule 33(2)(c) is that all members receive proper notice of a meeting, so they can make an informed decision when attending it. In the circumstances, all members have received sufficient notice, and the TWU confirms that no member has raised any complaints.[4] In my view, the fact that the notice was given by the National President does not invalidate the decision to alter the rules on this occasion. However, the TWU should ensure in future that all the provisions associated with transacting rule alterations are complied with.
On the information contained in the notices, declarations and further information provided in support of the alterations, I am satisfied the alterations in both R2024/179 and R2024/182 have been made under the rules of the organisation.
The Rule Alterations
The alteration to Rule 10, the insertion of Subrule 92(aa2), and the deletion of Rules 93 and 94 are minor and uncontroversial. They are made to,
· shorten the time when an unfinancial member becomes financial;
· provide a definition for “Gig worker”; and
· remove redundant transitional provisions.
They do not require comment beyond expressing my opinion about the matters set out in subsection 159(1) of the Act.[5]
The alterations to Rules 6, 7, 8, 25, 72, 73, 92 (except the insertion of Subrule 92(aa2)) and Rules 1 – 3 and 23 of Annexure F relates to the financial management of the TWU and the TWU has fixed an operative date of 1 January 2025.
Currently, the TWU in,
· Rule 7 prescribes an Entrance Fee and makes it payable when a person applies to join TWU;
· Rule 8 prescribes an Annual Fee and make it payable from 1 January 2024; and
· Rule 73 prescribes a Training Fund and makes each Effective Member contribute 50c a year.
The alterations to Rules 7 and 73 remove the Entrance Fee and the Training Fund, and introduce a new fund called the TWU Campaign Fund. The new fund will form part of the Annual Fee and become payable from 1 January 2025.[6]
The alterations to Rules 6, 25, 72, 92 (except the insertion of Subrule 92(aa2)) and Rules 1 – 3 and 23 of Annexure F are consequential changes following the removal of the Entrance Fee.
The alterations to Rule 8 increase TWU’s Annual Fee from $752.75 to $838.23 and make it payable from 1 January 2025.
Setting the rate of fees payable by members, removing existing fees or funds, or introducing new funds is generally a matter for a registered organisation and/or its branches to decide.[7] Nothing about the magnitude of the fee change, the size of the fees or funds, or the addition or removal of them engages section 142(1)(c) of the Act.
Therefore, I am satisfied that the alterations to Rules 6, 7, 8, 25, 72, 73, 92 (except the insertion of Subrule 92(aa2)) and Rules 1 – 3 and 23 of Annexure F are not contrary to the Act or the Fair Work Act 2009 (Cth) (FW Act) or fail to comply with those pieces of legislation. Nor is there any basis to conclude that the proposed alterations are contrary to modern awards, enterprise agreements or otherwise contrary to law.
On 17 December 2024, the Assistant National Secretary of the TWU, Emily McMillian, 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 Subrules 25(g) and 92(1)(i), removed the second comma after the words “Annual Fees”;
· In proposed Subrules 72(2)(a) and Rule 3 and Subrule 23(4) of Annexure F, removed the redundant “and”; and
· In proposed Subrule 1(1) of Annexure F, changed the words “nor shall he or she” to “No applicant shall”.
In a previous decision,[8] I have urged the TWU to lodge time-sensitive rule alterations early in the calendar year. Despite my suggestion, the TWU lodged the current matters on 11 December 2024, less than three weeks before their fixed operative date of 1 January 2025.
The Commission published its 24-25 Corporate Plan on 30 August 2024.[9] It is clear from the Plan that the Commission finalises 50% of matters within 8 weeks from the date of lodgement and 90% of matters within 16 weeks from the date of lodgement.
In this instance, I have exercised my discretion to expediate processing these matters. However, it would be a misconception that the Commission would arbitrarily accommodate short notice or prioritise one matter over another. The Commission aims to treat all matters with equal consideration and fairness. I emphasise my previous suggestion that the TWU should attend to future time-sensitive rule alterations earlier in the calendar year.
In my opinion, the alterations comply with and are not contrary to the Act, the FW Act, 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] Master Builders’ Construction and Housing Association of the Australian Capital Territory [2013] FWCD 3600
[2] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
[3] Appeal by the Australian Education Union against the decision of Vice-President Ross of 27 January 2006; Lawler VP, Kaufman SDP, Smith C; 26 September 2006; PR973525
[4] See correspondence from the TWU’s legal representative Michael Doherty on 17 December 2024.
[5] Subsection 159(1) of the Act provides that:
1) An alteration of the rules (other than the eligibility rules) of an organisation does not take effect unless particulars of the alteration have been lodged with the FWC and the General Manager has certified that, in his or her opinion, the alteration:
(a)complies with, and is not contrary to, this Act, the Fair Work Act, modern awards and enterprise agreements; and
(b)is not otherwise contrary to law; and
(c)has been made under the rules of the organisation.
[6] Subrule 7(3).
[7] In MacKenzie v Administrative and Clerical officers’ Association, Commonwealth Public Service (5 FLR 343, Spicer CJ, Joske J, 26 March 1962) the Commonwealth Industrial Court was dealing with a challenge to a rule, among others which provided that "all subscriptions to the association shall be determined from year to year by conference or the executive council, as the case may be".
Spicer CJ noted at 355: “There is nothing in the [Conciliation and Arbitration] Act [1904-1961 (Cth)] or regulations which expressly limits the power of the organization to fix its own subscriptions… There is, I think, no objection to such a power being vested in bodies within the organization which are representative of members”.
At 369, Joske J stated: “In my opinion this rule is not unreasonable… Should this rule be administered in such a way as to be oppressive, unreasonable or unjust a remedy is available under s.143 of the Act”.
Nothing about the Act compels a different conclusion. I note for completeness that s,143 of the Conciliation and Arbitration Act 1904-1961 was concerned with cancellation of the registration of an organisation.
[8] [2024] FWCD 1015
[9] The Corporate Plan can be found on the Commission’s website Our Corporate Plan 2024-25 published | Fair Work Commission
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