Victorian Automobile Chamber of Commerce

[2014] FWCD 865

[2014] FWCD 865

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Victorian Automobile Chamber of Commerce
(R2013/106)
MR ENRIGHT	MELBOURNE, 4 FEBRUARY 2014
Alteration of other rules of organisation.

[1] On 23 December 2013 the Victorian Automobile Chamber of Commerce (‘the

organisation’) lodged with the Fair Work Commission a notice and declaration setting out
particulars of alterations to the rules of the organisation.

[2] The particulars provide for the amendment to rules 2, 40, 42 and 59 and the insertion of new rules 29A and 64A 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] The particulars also set out amendments to rules 7, 17, 23, 24, 29, 34, 37, 53, 58, 71, 72, 82 and 85; the deletion of rules 75 and 83, and the insertion of new rules 23A, 24A, 34A and 34B. These alterations were made for the purposes of creating a new office, the Secretary, and reducing the number of Vice Presidents from two to one. They also provide for the appointment of the Executive Director and Industrial Officer and the deletion of the election rules for those positions. In addition they provide that after a cessation of membership, the previous member must not claim or represent any affiliation with the organisation; they clarify the role of the President and that the Returning Officer who is appointed by the Executive Board shall not be a member of the relevant Division. Lastly, the amendments update references to legislation and regulations and correct a typographical error.

Creation of the office of Secretary

[4] As noted above, the alterations create a new office, the Secretary. Subsection 141(1)(b)(i) of the Fair Work (Registered Organisations) Act 2009 requires rules to provide for the power and duties of holders of office, and section 141(1)(b)(iii) requires rules to provide for the removal of holders of office. The alterations to rules 34, 37, 71, 72, 73 and 85 and the insertion of rule 34B provide for the power and duties of the Secretary and rule 25 provides for the means of removing the Secretary from office. Subsection 143(1) requires the rules provide for the election of each office holder. The alterations to rules 34 and 85 provide for the election of the Secretary. In my view these alterations are capable of certification and an election for this office is required to be held as soon as practicable in 2014.

Reduction in the number of Vice Presidents

[5] Under the current rule book, rule 34(a) provides for ‘two Vice-Presidents, one of whom shall be the Senior Vice President and one the Junior Vice President’. The alteration to rule 34 creates the office of Secretary and reduces the number of Vice Presidents from two to one.

[6] An organisation has the right to mould its internal structures as it sees fit.[1]However several authorities suggest that the removal of office-holders during the term of their office may, in certain circumstances, impose oppressive, unreasonable or unjust conditions on members.[2]I note that the insertion of sub rule 34(d) seeks to ensure the continuation of the term of current office-holders until their natural expiry in 2014, thereby ensuring that there is no question of imposing oppressive, unreasonable or unjust conditions on members by truncating the terms of elected officers. In particular sub rule 34(d) provides that the office of Junior Vice President shall continue until it expires in the normal course of events.

[1]Imlach v Daley [1985] FCA 13; (1983) 7 FCR 457, Municiapl Officers’ Association of Australian v Lancaster & Anor

[2]See, for example, Benson v Construction, Forestry, Mining & Energy Union & Ors (1995) 60 IR 394, Fraser v Kingham

[7] However, as sub rule 34(d) only makes reference to Junior Vice President and does

not refer to the office of Senior Vice President, it appears to allow for two possible
interpretations of the rule and thereby creating an ambiguity.

[8] The first interpretation of the transitional rule would be that the office of Junior Vice President would transition to the newly created sole Vice President office. The second interpretation would be that the office of Junior Vice President is in addition to the sole Vice President office. When interpreting rules the preferred approach is that they be construed not technically or narrowly, but broadly and liberally.[3]By taking this approach it is clear that the purpose of this transitional rule is to provide for a transition arrangement for the office that is removed. In particular it provides for the office of Junior Vice President to remain until the next election. Consequently the Senior Vice President remains in the office to which he/she was elected, that being Vice President.

[3]French J in Re Election for office in TWU (WA) (1992) 40 IR 245 at 253

[9] I am satisfied that the transitional rule provides for the continuation of all office- holders until the natural expiry of their term of office. I am also satisfied that the transitional rule does not create so much ambiguity as to impose oppressive, unreasonable or unjust conditions on members or potential members, therefore it does not prevent me from certifying the alterations.

[10] On the information contained in the notice, I am satisfied the alterations have been made under the rules of the organisation.

[11] 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.

(1981) 54 FLR 129.

(1994) 57 IR 190,

DELEGATE OF THE GENERAL MANAGER

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