Victorian Showmen's Guild, the

[2015] FWCD 677

[2015] FWCD 677

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
The Victorian Showmen's Guild
(R2013/28)
MR ENRIGHT	MELBOURNE, 29 JANUARY 2015
Alteration of other rules of organisation.

[1]        Since 19 November 2013, the Victorian Showmen’s Guild (the organisation) has

been engaged in discussions with and sought ongoing advice from staff of the Fair Work

Commission (the Commission) to assist in the amendment of the organisation’s rules to

comply with the provisions of the Fair Work (Registered Organisations) Amendment Act

2012 (the Amendment Act).

[2]        On 18 December 2014, the organisation lodged with the Commission a notice and

declaration setting out particulars of alterations to the rules of the organisation.

[3]        The particulars set out alterations to rules 2 and 14 and inserts new rules 34, 35, 36, 37

and 38 to the rules of the organisation. The alterations were made for the purpose of

complying with the provisions of the Amendment Act. 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.

[4]        Following discussions between the organisation and staff of the Commission, further

information was received from the organisation on 2 January 2015.

[5]        A question arises as to whether the rule alteration process was complied with when

transacting the alterations. Rule 21.5 of the organisation’s rules states, ‘The Secretary...shall

summon all General, Special and Committee Meetings...’. The declaration by Ms Marjorie

Chant on 18 December 2014 states that Ms Chant, in her capacity as Trustee of the

organisation, ‘called for an Annual General Meeting of Members.’ I do not believe any

distinction should be drawn between the ‘summoning’ and ‘calling’ of a meeting. Therefore,

it appears one aspect of the organisation’s rule altering procedure has not been strictly

complied with. In accordance with the Fair Work (Registered Organisations) Act 2009 (the

Act), I am required to be satisfied that the alterations have been made under the rules of the

organisation.

[6]        As discussed in Master Builders’ Construction and Housing Association of the

1

Australian Capital Territory, the relevant question to be asked is whether it is intended that

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non-compliance would result in invalidity. Drawing from Project Blue Sky	and the
[2015] FWCD 677

application of its principles to the rules of an Association in Re: Australian Principals

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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.

[7]        Applying this reasoning to the facts before me, I believe the object of rule 21.5 is for

meetings of the organisation to be summoned by an elected officer who is capable of and

recognised as representing the organisation.

[8]        I have taken into account that all notice requirements regarding the Annual General

Meeting were met. In my opinion, the fact that the Annual General Meeting was summoned

by an elected officer other than the Secretary is procedural and does not invalidate the

decision of the members made at the Annual General Meeting.

[9]        On the information contained in the notice, I am satisfied the alterations have been

made under the rules of the organisation. However, I draw to the attention of the organisation

that it is incumbent on the organisation to ensure that the Secretary summons General, Special

and Committee Meetings of the organisation in the future.

[10]      On 22 January 2015, Marjorie Chant, Trustee, gave consent, under subsection 159(2)

of the Act for the Delegate to make various amendments to the alterations for the purpose of

correcting typographical, clerical or formal errors. Accordingly the following corrections have

been made:

 The proposed rule containing definitions is named Rule “2.3”.

 The reference to “[sub-rule 3(A)]” in the definition of declared person or body is

replaced with “sub-rule 36(A)”.

 The reference to “[sub-rule 2(A)]” in the definition of relevant remuneration is

replaced with “sub-rule 35(A)”.

 “Rule 1” is changed to “Rule 34”.

 “New Rule” before “Disclosure of Officer’s Relevant Remuneration and Non-Cash

Benefits” is changed to “Rule 35”.

	“New Rule (Pursuant to Section 148B of the Act)” is changed to “Rule 36”.
	“New Rule (Pursuant to Section 148C of the Act)” is changed to “Rule 37”.
	“Rule 38” is inserted before “Financial Training Rule”.
	In re-named Rule 36(C) the word “bun-rule” is changed to “sub-rule”.
	Full-stops are inserted at the end of Rule 14.9 and 14.10.

[11]      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.

[2015] FWCD 677

DELEGATE OF THE GENERAL MANAGER

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[2013] FWCD 3600

2

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28.

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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.