VANA Limited
[2015] FWCD 424
•29 January 2015
[2015] FWCD 424
DECISION
| Fair Work (Registered Organisations) Act 2009 | |
| s.159—Alteration of other rules of organisation | |
| VANA Limited | |
| (R2013/145) | |
| MR ENRIGHT | MELBOURNE, 29 JANUARY 2015 |
| Alteration of other rules of organisation. |
[1] On 19 December 2014 VANA Limited (the organisation) lodged with the Fair Work
Commission (the Commission) a notice and declaration setting out particulars of alterations to
the rules of the organisation.
[2] The particulars provide for the insertion of a new rule 37 into the rules of the
organisation. The alterations were made for the purpose of complying with provisions of the
Fair Work (Registered Organisations) Amendment Act 2012 (the Amendment Act) regarding
the rules of registered organisations. In particular, the alterations provide for specified
disclosures, the implementation of policies relating to expenditure and the mandatory training
of officers with duties that relate to the financial management of the organisation.
[3] Section 2 of the Amendment Act provides that the requirement for registered
organisations to adopt such rules commenced on 1 January 2014. I note with some disquiet
the fact that these alterations are being certified more than a year after that commencement
date.
[4] I have taken into consideration the fact that the organisation has maintained regular
contact with the Commission in relation to the progress of the alterations. In particular, I note
a record of a conversation between a Commission officer and a legal representative of the
organisation on 16 December 2013, in which the difficulties of holding a quorate meeting
under the organisation’s rules were discussed.
[5] I have also taken into consideration the fact that the organisation lodged two separate
applications pursuant to s.13(1(b) of the Fair Work (Registered Organisations) Act 2009 for
advice and assistance in relation to the alterations. The first of such applications was lodged
on 19 December 2013 and the second was lodged on 24 January 2014. Final advice in
relation to the draft rules was provided by the Commission on 17 March 2014.
[6] For the reasons provided above I consider that in this case the length of the process of
the alterations is not the result of recalcitrance by the organisation, and that the organisation
has demonstrated good faith in its intention to comply with the rule requirements.
[2015] FWCG 160
[7] On 6 January 2015 the Commission contacted the organisation seeking a declaration
signed by an office holder of the organisation.
[8] On 8 January 2015 the organisation provided a supplementary declaration which was
signed by Ron Thorpe, the Treasurer of the organisation.
[9] Rule 29 of the organisation’s rulebook states:
The Articles of Association for the time being may be altered by resolution of at least
three-fourths of votes of Members at a General Meeting called for the purpose.
Twenty-one days notice or such shorter time permitted under the Act must be given of
any such General Meeting.
[10] The declaration of Mr Thorpe states that the rule alterations were made at an Annual
General Meeting rather than at a General Meeting called specifically ‘for the purpose’. In
deciding whether or not to certify rule alterations, I am required by the Act to be satisfied that
the alterations have been made under the rules of the organisation.
1
| [11] | I addressed this issue previously in Clubs Australia - Industrial | . In that matter, the |
resolution to alter the rules was passed at an Annual General Meeting and the relevant rule
stated, in part, that “No new rule shall be made... unless... at a Special Meeting called for that
purpose”. My consideration of the validity of the alterations of Clubs Australia - Industrial
was as follows:
[4] As discussed in Master Builders' Construction and Housing Association of the
2
Australian Capital Territory the relevant question to be asked is whether it is intended that non compliance would result in invalidity. Drawing from Project Blue
3
Sky and the application of its principles to the rules of an association in Re: 4
Australian Principles [sic] Federation , 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). The issue is whether an act which does not comply strictly with
the rules has no effect. To determine this, regard must be had to the language, scope
and object of the relevant provisions.
[5] Applying this reasoning to the facts before me, the object of rule 28 of the CAI
rules is that new rules must be made at a meeting of members and that all members
must receive proper notice of the meeting with the full particulars of the alterations. In
this instance the new rules were made at a meeting of members, albeit an Annual
General Meeting instead of a Special Meeting. According to the declaration made by
Mr Tait, notice containing the full particulars of the alterations was sent to all
members in accordance with the notice requirements of the rules. On the basis of the
material before me, all members knew the substance of the proposed alterations well
in advance of the meeting. In my view, the fact that the meeting was an Annual
[2015] FWCG 160
General Meeting rather than a Special Meeting of members is procedural and does not
invalidate the decision of the members of the CAI to make new rule 26A.
[6] I am satisfied the alterations have been made under the rules of the organisation.
[12] Likewise, in the current matter the fact that the meeting was an Annual general
meeting rather than a General Meeting is procedural and does not invalidate the decision of
the members of the organisation to make new rule 37.
[13] I am satisfied the alterations have been made under the rules of the organisation.
However I draw to the attention of the organisation that their rules require alterations to be
made at a General Meeting called specifically for that purpose. It is incumbent on the
organisation to ensure, in future, that alterations are made at such a meeting. If the
organisation is desirous of making alterations at the Annual General Meeting then it may
wish to consider altering rule 29 to explicitly provide for this.
[14] In my opinion, the alterations comply with and are not contrary to the Fair Work
(Registered Organisations) Act 2009 (the RO Act), the Amendment 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 RO Act.
1
[2013] FWCD 10250.
2
[2013] FWCD 3600.
3
Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; 28 April 1998.
4
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.
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