Victorian Chamber of Commerce and Industry
[2018] FWCD 7658
•22 DECEMBER 2018
| [2018] FWCD 7658 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Victorian Chamber of Commerce and Industry
(R2018/307)
| MURRAY FURLONG | MELBOURNE, 22 DECEMBER 2018 |
Alteration of other rules of organisation.
On 14 December 2018 the Victorian Chamber of Commerce and Industry (VCCI) lodged with the Fair Work Commission a notice and declaration setting out particulars of an alteration to its rules.
On 18 December 2018 VCCI indicated that its website contained a notice stating that the application had been lodged.
The particulars set out an alteration to Rule 2. The alteration updates the VCCI’s street address.
According to the declaration of VCCI’s Secretary, Mark Stone the alterations were transacted during the organisation’s Annual General Meeting on 15 November 2018. Notice of the alterations was provided to members on 25 October 2018.
Rule 41 of VCCI’s rules provides that, among other things, notice in writing of proposed amendments must be sent to all members at least 21 days prior to the General Meeting where the alterations will be transacted. Where the expression “at least” is used in this context, neither the day the proposed alterations were forwarded nor the day of the meeting are counted.[1] As such, one day less than the required notice was given.
As discussed in Master Builders’ Construction and Housing Association of the Australian Capital Territory,[2] it is necessary to consider whether the non-compliance referred is intended to result in invalidity. Does the failure to provide at least 21 days’ notice mean that the alterations have not been made under the rules of the organisation[3] – that is, does non-compliance with rule 41 invalidate the alteration of the rules?
To assess this question it is necessary to consider the decision of the High Court in Project Blue Sky[4] and its application by a Full Bench of this Commission in Re: Australian Principals Federation.[5] In the context of the rules of registered organisations these authorities indicate that 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). Instead, 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.
Applying this reasoning to the facts before me the relevant object of rule 41 is that all members receive proper notice of the alterations under consideration, so they can make an informed decision about whether to amend the rules. Following enquiries from Fair Work Commission staff, VCCI indicated that “no person who attended the AGM and voted on the resolution to alter the Rules raised any objection about the length of the period or that there had not been compliance with the Rules.”[6]. There is nothing else before me to suggest VCCI’s members were concerned by the amount of notice provided, or otherwise prejudiced because too little notice was given. I also note that the process to change VCCI’s address in its rules has been on foot for some time. Further, the alteration does no more that reconcile the address recorded in the rule book with VCCI’s actual address.[7] It can be presumed that VCCI’s members are aware of the address of their organisation.
On the basis of the material before me, members were sufficiently cognisant of the substance of the alteration to make a considered decision at the Annual General Meeting. In the circumstances, the fact that the notice provided was a day short does not invalidate the decision to alter the rules on this occasion. However, VCCI should ensure in future that at least twenty one days’ notice is provided of alterations prior to the relevant meeting.
On the information contained in the notice and in light of my conclusion about the notice matter, 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] Re Railway Sleepers Supply Co (1885) 29 Ch D 204; White v Godfrey (1959) 1 FLR 357
[2] [2013] FWCD 3600
[3] Section 159(1)(c) of the Fair Work (Registered Organisations) Act 2009
[4] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
[5] 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
[6] Email from VCCI’s solicitor of 17 December 2018.
[7] See for instance AR2018/8 -
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