United Firefighters' Union of Australia
[2020] FWCD 2212
•24 June 2020
| [2020] FWCD 2212 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
United Firefighters' Union of Australia
(R2020/48)
| MURRAY FURLONG | MELBOURNE, 24 June 2020 |
Alteration of other rules of organisation.
On 17 April 2020, the Aviation Branch (the Branch) of the United Firefighters' Union of Australia (UFUA) with the Fair Work Commission a notice and declaration setting out particulars of alterations to the rules of the UFUA.
The particulars set out alterations to the following rules of the UFUA:
· 9 – Registered Offices;
· 56 – Branch Committee of Management;
· 57 – Powers and Duties of Branch Committee of Management;
· 58 – Meetings of Branch Committee of Management;
· 61 – State or Territory Committee – Aviation Branch;
· 66 – Aviation Branch – Powers and Duties of Branch Committee of Management Member;
· 67 – Aviation Branch – Powers and Duties of Branch Organisers;
· 70 - Election of Branch President, Vice-Presidents, Secretary, Assistant Secretary, Trustees, Members of Branch Committee of Management and Aviation Branch Organisers; and
· 71 – By-Elections.
The particulars also provide for the insertion of new rule 67A - Aviation Branch – Abolition and Transition of Organisers.
The alteration to rule 9 updates the current address of the Branch.
The alterations to rules 56 and 70 establish a new office of Work Health and Safety (WHS) National Co-ordinator who shall be a member of the Aviation Branch Committee of Management and directly elected by members of the Branch.
The alterations to rules 58, 61, 66, 67 and 70 remove references to Organisers attached to the Branch and establish the position of Unit Representative which will also be known as a Workplace Delegate.
New rule 67A provides for transitional arrangements with respect to the abolition of the role of Organiser. An incumbent Organiser will continue in that role until he or she resigns or his or her term of office expires and their powers and duties will be consistent with those ascribed to the newly established position of Unit Representative.
The alteration to sub-rule 58(5) provides that if a Branch Committee of Management Member is unable to act at the time of or during a meeting of the Aviation Branch Committee of Management, a Unit Representative from a Rescue and Firefighting Unit in the relevant State or Territory may be nominated by the Branch Committee of Management Member to act as a substitute provided that written notice is given to the Branch Secretary. The Unit Representative will be entitled to act in in the place of the Branch Committee of Management Member with full debating and voting rights.
This raises an issue of whether a Unit Representative acting as a substitute during meetings of the Branch Committee of Management would effectively constitute an “officer” for the purposes of the Fair Work (Registered Organisations) Act 2009 (the Act). That term is defined in the Act as the holder of an “office” in an organisation.[1] An office is defined in subsection 9(1)(b) of the Act as including a voting member of a collective body that has power in relation to the management of the affairs, the determination of the policy, the making of alterations to the rules and enforcement of and performance of functions in relation to, the rules of an organisation or a branch of an organisation.
The determination of this issue is crucial as subsection 143(1) of the Act requires that rules of an organisation must provide for election of the holder of each office in an organisation. The alteration to rule 67 provides that the Unit Representatives will be appointed by and from their respective Rescue and Firefighting Units.
Given the powers invested in it by the rules, the Aviation Branch Committee of Management is clearly a collective body of the kind contemplated by subsection 9(1)(b) of the Act and, thus, a Branch Committee of Management Member, as a voting member of this body, appears to be an officer for the purposes of the Act.
As noted above, a Unit Representative nominated to act a substitute during a meeting of the Aviation Branch Committee of Management will have debating and voting rights. This would suggest that, to the extent that a Unit Representative is so nominated in this way, he or she would exercise powers and functions associated with those of an office for the purposes of the Act.
However, the effect of sub-rule 58(5), as altered, must be construed with respect to the rules of the UFUA as a whole. In this regard, rule 67 provides that the relevant Unit Representative may only act subject to the direction and control of the relevant Branch Committee of Management Member including with respect to acting as a substitute pursuant to sub-rule 58(5). This would suggest that a Unit Representative acting as a substitute during Aviation Branch Committee of Management meeting is effectively in the position of a proxy or agent of the Branch Committee of Management Member rather than being vested with powers incidental to holding an office in, or being an officer of, an organisation. For example, it appears that a Unit Representative could not vote in a way which contradicted a relevant direction from the Branch Committee of Management Member.
This reinforced by new sub-rule 67(6) which provides that Unit Representatives do not hold office and are not officers for any purpose.
The further powers and duties vested in Unit Representatives listed in rule 67, and the qualification that those powers and duties can only be exercised subject to the control and direction of the relevant Branch Committee of Management Member, are consistent with a non-office position. Absent a nomination being made with respect to a particular Unit Representative to act as a substitute under rule 58(5), it would be reasonably clear that a Unit Representative does not hold office in the Branch.
It appears that the resolution of this issue may be contingent upon how rule 58(5) is used in practice including, firstly, whether such a nomination is made and, secondly, the powers vested in a Unit Representative so nominated. In my view, on their face, the alterations do not necessarily entail Unit Representatives conforming to the definition of an “office” set out in subsection 9(1)(b) of the Act.
If the above reasons regarding the construction to be given to the term “office” in s. 9 of the Act and its application to the present matter are wrong, Unit Representatives do not appear to hold an office for an alternative and more fundamental reason. Section 6 of the Act defines the term “officer” as follows:
officer, in relation to an organisation, or a branch of an organisation, means a person who holds an office (emphasis added) in the organisation or branch (including such a person when performing duties as a designated officer under Part 3 of Chapter 8).
The key word in this definition is “holds” and the related use of the term “holder” in s. 9 of the Act. According to the Australian Pocket Oxford Dictionary 8th Ed “hold” means:
2. possess, gain or have
In my view, it is not sufficient that the person has some of the powers and duties of the position, they must actually hold the position to be an officer. Unit Representatives do not, by merely acting as a substitute during Branch Committee of Management meetings when nominated by a Branch Committee of Management Member, hold an office on the Branch Committee of Management and are not officers for the purposes of the Act.
On the information contained in the notice, I am satisfied the alterations have been made under the rules of the organisation.
In my opinion, the alterations comply with and are not contrary to the Fair Work (Registered Organisations) Act 2009, 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 Fair Work (Registered Organisations) Act 2009.
DELEGATE OF THE GENERAL MANAGER
[1] Fair Work (Registered Organisations) Act 2009, s. 6 definition of “officer”.
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