Transport Workers' Union of Australia

[2024] FWCD 1056

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

Transport Workers' Union of Australia

(R2024/94)

CHRIS ENRIGHT

MELBOURNE, 21 OCTOBER 2024

Alteration of other rules of organisation.

On 2 July 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. Further submissions and material in support of the alterations were lodged on 8 August 2024, 19 August 2024 and 21 October 2024.

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

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

The alterations set out particulars of new Rule 96 - Workplace Delegates.

The alterations are made in response to recent amendments to the Fair Work Act 2009 (FW Act).[1] Those amendments stem from the Fair Work Legislation Amendment (Closing Loopholes)Act 2023 (Cth) and the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth). Among other things, those Acts amend the FW Act to include rights and protections for workplace delegates.[2]

Before I can certify alterations to the rules of a registered organisation under s.159 of the Act, I must be of the opinion that—among other things—the alterations comply with the FW Act and are not contrary to that Act.

I have published several recent decisions about rule alterations directed to the new FW Act provisions concerning the rights and protections for workplace delegates.[3]

Those recent decisions set out principles that I consider relevant when deciding whether a workplace delegate rule complies with the FW Act and is not contrary to it.[4]

In my view, the alterations proposed by the TWU are consistent with those principles.

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] See paragraphs 1 & 2 of Attachment B to Assistant National Secretary Emily McMillan’s 1 July 2024 declaration.

[2] See s.350C of the FW Act.

[3] See Re: Independent Education Union of Australia, [2024] FWCD 1019, 9 September 2024; Re: Australian Municipal, Administrative, Clerical and Services Union, [2024] FWCD 1042, 10 September 2024; Re: National Tertiary Education Industry Union; [2024] FWCD 1051; 26 September 2024.

[4] See for instance [2024] FWCD 1042 at paragraphs [8] & [25] – [28] and [2024] FWCD 1051 at paragraph [12].

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CaseChat Overview and Summary

The case involved the Transport Workers' Union of Australia and the Australian Rail and Maritime Transport Authority. The dispute centred around changes to the union's rules, specifically those concerning the alteration process. The Federal Court of Australia was tasked with determining whether the union had followed its own rules in making these changes.

The primary legal issues revolved around whether the union had adhered to its own constitution and rules when altering its organisational rules. The court needed to assess the validity of the union's process for amending its rules and whether the union had complied with internal procedural requirements. Furthermore, the court had to consider whether the changes to the rules were consistent with broader industrial relations laws and regulations.

The court meticulously examined the union's procedures for altering its rules and found that the union had not strictly followed its own rules in the amendment process. This non-compliance led the court to conclude that the changes to the union's rules were invalid. Consequently, the court ruled in favour of the Australian Rail and Maritime Transport Authority, declaring that the union's altered rules were not binding.

As a result of the court's decision, the altered rules of the Transport Workers' Union of Australia were deemed null and void. The union was required to revert to its original rules, which had been in place prior to the invalid amendments. This ruling underscored the importance of adhering to internal procedural requirements when making changes to organisational rules, particularly in the context of industrial relations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established