Victorian Farmers Federation Industrial Association

[2014] FWCD 1315

[2014] FWCD 1315

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Victorian Farmers Federation Industrial Association
(R2014/26)
MR ENRIGHT	MELBOURNE, 23 FEBRUARY 2014
Alteration of other rules of organisation.

[1] On 14 February 2014 the Victorian Farmers Federation Industrial Association (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 set out alterations to Rules 7, 9, 10, 12, 13, 15, 18, 22, 26, 27, 29, 31, 32, 36, 37, 39 and 40 of the rules of the organisation.

[3] The alterations provide that the annual financial report is to be presented to the Executive Committee, enable five percent of members to require that a general meeting of members be held, provide for electronic means for giving notice to members, remove the requirement for members to supply information about property ownership, reduce the period of unfinancial membership from four to three months before a member can be removed from the register of members, create the office of Vice-president and remove the offices of Trustee and Executive Officer.

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

The 35 day period for lodgment

[5]        Regulation 126(1) of the Fair Work (Registered Organisations) Regulations 2009

requires an alteration of the rules of a registered organisation to be lodged within 35 days after
the alteration is made or within any additional period that the General Manager may allow.

[6] The declaration that accompanied the notifications indicates that the alterations were made by the organisation 24 May 2013. During communications between the staff of the Fair Work Commission and the organisation, the organisation advised that they had sent the documents to the Commission on 2 July 2013. However, there is no record of the Commission receiving the notification and, when this was discovered on 14 February 2014, the documents were lodged with the Commission without further delay.

[2014] FWCD 1315

[7] Though the organisation was unable to provide evidence of the date of lodgement, it drew the Commission’s attention to the fact that the notification is dated 2 July 2013. Regulation 126(1) provides me with the discretion to allow any additional period for lodgement of this notification. The words ‘any additional period’ do not import any constraint on the timing of or on the length of the additional period. On this occasion I have exercised my discretion to allow an additional period of seven months and 17 days, being the period between 35 days after the alterations were made on 24 May 2013 and when the Commission has evidence they were lodged on 14 February 2014.

Removal of unfinancial members from the register of members.

[8] Currently the rules of the organisation provide that the Executive Committee is able to remove a member from the register if unfinancial for a period of not less than four months (sub-rule 15.3). Currently rule 15 provides that the member is to receive at least 30 days notice of the proposal to be removed from the register and is to be given the opportunity to appear before or put an explanation in writing to the Executive Committee. The proposed alterations reduce the period of unfinancial membership before removal can occur from four months to three months. The provisions regarding notice and the opportunity to be heard remain.

[9] Section 172 of the Fair Work (Registered Organisations) Act 2009 (the Act) provides:

172 Non-financial members to be removed from the register

(1) If:

(a) therules of an organisation require a member to pay dues in relation to the person’s membership of the organisation; and

(b) the member has not paid the amount; and

(c)	a continuous period of 24 months has elapsed since the amount became payable; and
(d)	themember’s name has not been removed from the register kept by the organisation under paragraph 230(1)(a);

the organisation must remove the name and postal address of the member from the

register within 12 months after the end of the 24 month period.

Note: This subsection is a civil penalty provision (see section 305).

(2) In calculating a period for the purposes of paragraph (1)(c), any period in relation

to which the member was not required by the rules of the organisation to pay the

dues is to be disregarded.

(3) A person whose name is removed from the register under this section ceases to be

a member of the organisation on the day his or her name is removed. This
subsection has effect in spite of anything in the rules of the organisation.

[2014] FWCD 1315

Note: A non-financial member’s membership might cease and his or her name be removed from the register earlier than is provided for by this section if the organisation’s own rules provide for this to happen.

[10] The note to section 172 of the Act explicitly states that rules can provide for earlier

removal from the register. Both the current rules and the proposed alterations provide for
earlier removal from the register, in keeping with the provisions of section 172 of the Act.

[11] The Act also provides at section 142(1)(c) that rules must not impose on members conditions, obligations or restrictions that, having regard to parliament’s intention and the objects of the Act, are oppressive, unreasonable or unjust. In Kenward[1]Keely J considered a rule which provided from the removal of members from the register. His honour was of the opinion that the rules:

[1] Re An Election of Offices In the Federated Liquor and Allied Industries Employees’ Union of Australia South Australian

...would invalidly impose upon members restrictions which are oppressive, unreasonable and
unjust, if,...they were to be construed as not requiring that a member be given notice (where
practicable) of the proposed action and an opportunity to place before the Branch Secretary or
the Committee of Management, as the case may be, relevant considerations as to why his or
her name should not be cancelled.[2]

[2] Ibid at para [19]

[12] The alterations before me retain the requirement for the member to be given notice and the opportunity to be heard by or provide a written explanation to the Executive Committee. In my opinion the alterations to rule 15 do not impose oppressive, unreasonable or unjust conditions on members and are capable of certification.

Creation of the office of Vice-President

[13] As noted in paragraph [3] the alterations create a new office, the Vice-President. Subsection 141(1)(b)(i) of the Act requires rules to provide for the power and duties of holders of office. The alterations to rule 26 provide for the power and duties of the Vice- President. Subsection 143(1) requires the rules provide for the election of each office holder. The alterations provide for the election of the Vice-President (alterations to rule 27). The Fair

Work (Registered Organisations) Amendment Act 2012 (the Amendment Act) requires rules

to provide for specified disclosures, the implementation of policies relating to expenditure, the mandatory training of officers with duties that relate to the financial management of the organisation and consequential renumbering of rules. Current rules 18A, 25A, 25B, 25C and 27.13 make such provisions for the office of Vice-President.

[14] In my view the alterations which create the office of Vice-President are capable of

certification, and immediately following on from certification an election for this office is
required to be held.
[2014] FWCD 1315

Removal of the offices of Trustee and Executive Officer

[15] As noted in paragraph [3] the alterations abolish the offices of Trustee and Executive Officer. Provided an organisation complies with the requirements of the Act and the regulations, an organisation has the right to mould its internal structures as it sees fit[3]. Consequently the organisation can abolish these offices. However alterations that seek to abolish an office during its term or a branch must not have an oppressive, unreasonable or unjust effect on members or applicants for membership.[4]

[3] Imlach v Daley [1985] FCA 13; (1983) 7 FCR 457

[4] Roughan v Australasian Meat Industry Employees’ Union (1992) 36 FCR 536

[16] On 24 May 2013 the Australian Electoral Commission declared that there were no nominations received for the offices of Trustee and Executive Officer. Consequently the offices are currently vacant and no terms of office have been truncated. The alterations to the rules provide that the powers and duties currently accorded to these offices are now undertaken by the Executive Committee (alterations to rules 9, 12, 13, 18, 22, 27, 31 and 37). The alterations enable the organisation to function by empowering a democratically elected committee to undertake required duties.

[17] I am satisfied that the organisation has the power to abolish the office of Trustee and the office of Executive Officer. I am also satisfied that the abolition of these offices will not have an oppressive, unreasonable or unjust effect on members or applicants for membership. In my view the alterations meet the objectives of the Act in that they provide for the efficient operation and democratic functioning of the organisation (section 5 of the Act) and are capable of certification.

Typographical errors

[18] On 20 February 2014, Meg Parkinson, President of the Victorian Farmers Federation Industrial Association, gave consent, under subsection 159(2) of the Act, for the Delegate to make various amendments to the particulars of the alterations for the purpose of correcting typographical, clerical or formal errors. Accordingly the following corrections have been made:

	In point 5(ii) of the particulars of the alterations to sub-rule 12.2 the words ‘or her’
should be inserted after the word ‘him’ and also after the word ‘ his’ appearing in the
sub rule.
	In point 13 (vi) of the particulars of the alterations to sub-rule 27.11.2 the words
‘Trustee and Executive Officer’ should read ‘and Executive Officer’.
	In point 13 (vi) of the particulars of the alterations the extra 4 after ‘27.11.2’ should be
deleted.

[2014] FWCD 1315

[19] 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 Fair Work (Registered

Organisations) Act 2009.

DELEGATE OF THE GENERAL MANAGER

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Branch v Re An Application By Dianne June Kenward of An Enquiry Into the Said Election [1989] FCA 250 (10 July

1989)