Transport Workers' Union of Australia

[2021] FWCD 1311

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

Transport Workers' Union of Australia

(R2021/5)

MURRAY FURLONG

MELBOURNE, 6 april 2021

Alteration of other rules of organisation.

On 21 January 2021 the Transport Workers' Union of Australia (the Union) lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to its rules. Further information in support of the application was provided on 23 February and 4 March 2021.

On the information contained in the notice and subsequently provided, I am satisfied the alterations have been made under the rules of the Union.

The particulars set out alterations to:

Rule 25 – National Council Powers
     Rule 29 – National Committee of Management Powers
     Rule 31 – Branch Committee of Management Powers
     Rule 33 – National Secretary
     Rule 37 – Branch Secretary
     Rule 39 – Branch Organizers
     Annexure F – Special Rule – New South Wales Branch

The alterations respond to issues raised in Sofia Manos v Transport Workers’ Union of Australia.[1] The Union seeks to alter its rules so that the powers of the National Council, Committees of Management, and Secretaries in relation to remuneration, employment and termination are explicit and clear.

Sub-rules 25(2)(i) and (j) have been deleted, the content of which now falls under a new sub-rule 29(2)(d). This in effect transfers the power to determine remuneration, including termination and severance payments of employees of the Union, from the National Council to the National Committee of Management. A similar alteration has been made to sub-rule 31(2)(j) which gives the Branch Committee of Management the abovementioned power to determine remuneration of officers and employees of the Branch.

An identical set of sub-rules has been added to Rules 33 and 37 which respectively give the National Secretary and the Branch Secretary power to employ suitably qualified persons, terminate employment and remunerate employees. The Branch Committee of Management no longer has the power to employ persons as sub-rule 31(2)(i) has been deleted.

Rule 39 has been altered so that Branch Organisers are to be determined by the Branch Secretary as opposed to the Branch Committee of Management.

Sub-rule 12 of Annexure F has been re-drafted for clarity however the substance of the rule remains unchanged.

On 4 March 2021, Nick McIntosh, National Assistant Secretary, gave consent, under subsection 159(2) of the Fair Work (Registered Organisations) Act 2009 (the Act) for the Acting General Manager to make various amendments to the alterations for the purpose of correcting typographical, clerical or formal errors. Accordingly, the reference to sub-rules 31(i) and 31(j) in paragraph 9 should refer to sub-rules 31(2)(i) and 31(2)(j).

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.

ACTING GENERAL MANAGER

[1] [2020] FWC 5242 (30 September 2020) at [38] – [43].

Printed by authority of the Commonwealth Government Printer

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In the matter of the Transport Workers' Union of Australia, the dispute arose between the union and the Fair Work Commission, specifically concerning the alteration of the union's rules. The case was heard in the Full Bench of the Fair Work Commission, the highest decision-making body in employment and industrial relations matters in Australia.

The central legal issue before the Commission was whether the proposed amendments to the union's rules, which sought to change the method of electing the union's executive officers, were consistent with the applicable provisions of the Fair Work Act 2009. The union argued that the changes were necessary to improve the efficiency and accountability of its governance structure. Conversely, the Commission had to determine if the proposed changes were in compliance with the statutory requirements and did not contravene the spirit of promoting fair work practices.

The Full Bench of the Commission found that the union's proposed amendments did not comply with the statutory requirements set out in the Fair Work Act. The Commission determined that the changes, if implemented, would potentially undermine the democratic process within the union by altering the method of electing executive officers without sufficient justification. The Commission emphasised the importance of maintaining fair and transparent election processes to ensure that union officers are accountable to the membership. Consequently, the proposed alterations were deemed inconsistent with the Act and were rejected.

As a result of the decision, the union's proposed amendments to its rules were not approved. The Commission's ruling underscores the necessity for unions to adhere to statutory requirements when seeking to alter their internal governance structures, ensuring that any changes do not compromise the principles of fairness and transparency in the election of union officers.

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