United Voice
[2018] FWCD 656
•31 JANUARY 2018
| [2018] FWCD 656 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
United Voice
(R2017/294)
| MURRAY FURLONG | MELBOURNE, 31 JANUARY 2018 |
Alteration of other rules of organisation.
On 12 December 2017 United Voice lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to its rules. The material lodged by United Voice included submissions in support of the alterations.
The particulars set out alterations to rules 7 and 75F, the deletion of rules 26, 26A, 26C, 26D, 26E, 26F, 26G and 26H, the renumbering of rule 26B and the insertion of a new rule 76 (the transitional rule).
Upon certification, the remainder of United Voice’s rules will be read subject to the transitional rule. One effect of the transitional rule is to transform the Branch Council of each Branch into an advisory body, with the management and decision making functions it currently performs being assumed by Branch Executive. Consequently, a Delegate to Branch Council will no longer hold an office as defined in section 9 of the Fair Work (Registered Organisations) Act 2009 (the Act). For the purposes of conducting the 2018 election, the office of Delegate to Branch Council will be replaced by the position of Delegate to Branch Council. For all other purposes, the changes will take effect from 3 July 2018, when the next term of office is due to commence. Therefore, the current term of office will not be affected.
The transitional rule also alters the composition of zones for the purposes of electing representatives to the Ambulance Employees Australia Victoria Council, and the Divisional make up of Delegates to National Council from the New South Wales Branch. The latter change reflects the fact that, based on a calculation made under United Voice’s rules, the New South Wales Branch is entitled to two fewer delegates in the forthcoming election.
The remaining rule alterations change the composition of Branch Sections in the Tasmanian Branch and delete rules relating to financial management training and specified disclosures that were required by the Fair Work (Registered Organisations) Amendment Act 2012 and subsequently replaced by statutory obligations in the Fair Work (Registered Organisations) Amendment Act 2016.
On the information contained in the notice, I am satisfied the alterations have been made under the rules of the organisation.
Change to function of Branch Council
By transforming the function of Branch Council and concentrating in Branch Executive the management and decision-making powers with respect to each Branch, the proposed rules impose a condition or restriction on members in that they remove an existing mechanism through which members can directly participate in the affairs of the organisation.
Subsection 142(1)(c) of the Act states that the rules of an organisation:
must not impose on applicants for membership, or members, of the organisation, conditions, obligations or restrictions that, having regard to Parliament’s intention in enacting this Act…and the objects of this Act and the Fair Work Act, are oppressive, unreasonable or unjust”.
Parliament’s intention in enacting the Act is set out in section 5. Relevantly, the Act is designed to:
(a) ensure that employer and employee organisations registered under this Act are representative of and accountable to their members, and are able to operate effectively; and
(b) encourage members to participate in the affairs of organisations to which they belong; and
(c) encourage the efficient management of organisations and high standards of accountability of organisations to their members; and
(d) provide for the democratic functioning and control of organisations;
The words “oppressive, unreasonable or unjust” have been considered extensively in the relevant case law. The following principles can be distilled:
· “The mere imposition by the rules of conditions, obligations or restrictions is not evidence that those conditions, obligations or restrictions are oppressive, unreasonable or unjust” [Doyle v Australian Workers Union[1]].
· “The question of oppression, unreasonableness or unjustness must involve a practical consideration of the substantive effect of the rule, not merely in isolation but in the context of the rules as a whole” [Butler v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2]].
· Those three words are used objectively in the clause and each of them is to be given its ordinary strong meaning. Plainly, their meanings overlap and definition is liable to adulterate the strength which the words possess. Nonetheless, it seems desirable that I indicate the meaning which I ascribe to them. To be oppressive, a condition, obligation or restriction must be burdensome, harsh and wrongful. To be unreasonable, it must be immoderate and inappropriate. To be unjust, it must be contrary to right and justice and to ordinary standards of fair play [Municipal Officers’ Association of Australia v Lancaster[3]]
· “It cannot…be too strongly stressed that, subject to those constraints and restrictions [in the legislation], the content of the rules of a registered organisation is primarily a matter for the members” [Municipal Officers’ Association of Australia v Lancaster[4]].
In support of the alterations, United Voice submits:
28. The consequence of the proposed alteration is, consistent with the present practice, to make clear that the Branch Executive is the management and decision making body of a respective Branch.
29. Under the United Voice Rules, the Branch Council is only required to meet once a year, and there is, at each Branch, a consistent proposition that the supervisory function has not been significantly utilised. Rather, the Branch Council has been a body to which reports are provided for the purpose of informing the membership through the sectional delegates.
30. The alterations propose that the Branch Council will formulate and recommend to the Branch Executive policies for adoption. The general proposition is, that consistently with other Unions, the Branch Council will become a focus for dialogue directed at the macro issues facing the Branch sections, the Branch and the Union in an environment that is not restrained by management responsibility and a focus on operational issues.
…
32. Branch Council members are all volunteers and on current structures have significant residual responsibility without day to day operational knowledge or input and often meet no more than once or twice each year. United Voice considers that it is more appropriate from a governance perspective to have those members who are to be the subject of the full effect of the legislative regime to be those persons elected to the Branch Executive and who meet more regularly…and who can have a real and purposeful input into the operational requirements of United Voice at the Branch level.
…
34. To encourage the participation, and activism, of members within their Union it is therefore proposed to alter the role of Branch Council as set out above.
There is a degree of tension between the objects listed in section 5 of the Act. The consideration of whether a rule is oppressive, unreasonable or unjust will often involve balancing those competing objects. In the present situation, I accept United Voice’s submission that the efficient management of the organisation will be enhanced, and accountability increased by more correctly allocating operational responsibility to those officers who meet regularly, and, further, that it is appropriate to limit the full effect of the legislative regime to those officers. However, it is less certain that the removal of Branch Council’s powers will, as United Voice submits, “encourage the participation, and activism, of members within their Union”, nor does it clearly enhance democratic functioning and control.
Although I am not convinced that concentrating management and decision-making powers in Branch Executive furthers those objects going to member participation and democratic functioning and control of the organisation, I note that there are a range of compensatory provisions in the rules, including:
· There is an obligation in in rule 44(i) to keep minutes of all Branch Executive meetings.
· Rule 43 provides that Branch meetings must be held at least quarterly and must also be convened if requisitioned by members. Any decision made by such a meeting will be generally binding on Branch Executive.
· Pursuant to rule 63, all decisions of the National Council, National Executive, Branch Executive and any Branch Committee of Management are subject to review by plebiscite, which may be requested by a petition of members.
· Rule 56 provides further capacity for members to further contribute to Branch policies in an advisory capacity via a Delegates Convention.
I am therefore satisfied that the rules retain various avenues for member participation and democratic functioning and control.
It is clear from the authorities cited above that the content of an organisation’s rules is largely a matter for the members of that organisation. Having considered the alterations in the context of the rules as a whole, I find that that, in the circumstances before me, the rules as altered are consistent with Parliament’s intention in enacting the Act. Although the rules may impose a restriction or condition upon members, it is not one which, having regard to the relevant authorities, is oppressive, unreasonable or unjust.
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
[1] (1986) 12 FCR 197, 205.
[2] [2012] FCA 790, [23].
[3] 1981) 54 FLR 129, 164-5.
[4] (1981) 54 FLR 129, 165.
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