VIPA

[2014] FWCD 7359

[2014] FWCD 7359

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
VIPA
(R2014/248)
MR ENRIGHT	MELBOURNE, 22 OCTOBER 2014
Alteration of other rules of organisation.

[1] On 9 October 2014 VIPA lodged with the Fair Work Commission a notice and

declaration setting out particulars of alterations to the rules of VIPA. An amended declaration
was received on 20 October 2014.

[2] The particulars set out the insertion of new rule 14B, the deletion of rule 61 and Schedule 1, and alterations to rules 1, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 14A, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 59, and 60.

[3] The alterations change the electorates and the number of Committee of Management positions per electorate, change the term of office of Committee of Management members elected from 2015, change the timing of the Annual General Meeting and reduce its quorum, transfer some of the Secretary’s duties to the Treasurer, alter provisions governing Committee of Management meetings, alter provisions governing Sub-Committees, replace the term ‘Office Bearer’ with ‘Executive Member’, provide for associate membership of the organisation, change the address of the registered office, delete transitional provisions and make other miscellaneous amendments which update terminology and legislative references.

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

Alterations to eligibility rule

[5] The particulars of the alterations include an alteration to rule 5 of the rules of the organisation. Current rule 5 is set out below:

5. ELIGIBILITY FOR MEMBERSHIP

a) All persons who are employed as pilots on airline services within, or extending

beyond, the Commonwealth of Australia, by:

i) Virgin Blue Airlines Pty Ltd;
ii) Virgin Australia Holdings Pty Ltd;

[2014] FWCD 7359

iii) Virgin Blue Holdings Limited;
iv) Virgin Australia Airlines Pty Ltd;
v) Virgin Blue International (Holdings) Pty Ltd;
vi) Virgin Blue International Airlines Pty Ltd;
vii) V Australia Airlines Pty Ltd;
viii) Express Blue Air Freight Pty Ltd;
ix) Toll Holdings Limited;
x) any successor, transmittee or assignee (whether immediate or not) of the
whole or a part of the business of any company or entity referred to in any of
the preceding Sub-paragraphs i) – ix) above; and/or
xi) any subsidiary related body corporate or associated entity (as those words
are defined in the Corporations Act 2001 (Cth) of any company or entity

referred to in any of the preceding Sub-paragraphs i) to ix) above,

shall be eligible for membership of the Association.

[6]        The alteration replaces the word ‘shall’ as it appears in the last line with ‘will’.

[7]        An eligibility rule is defined under section 6 of the Act as follows:

eligibility rules, in relation to an organisation or association, mean the rules of the

organisation or association that relate to the conditions of eligibility for membership or the description of the industry or enterprise (if any) in connection with which the organisation is, or the association is proposed to be, registered.

[8] Rule 5 is an eligibility rule as defined under section 6 of the Fair Work (Registered Organisations) Act 2009 (the Act). The alteration to rule 5 is a change to the eligibility rule of

the organisation.

[9] Applications to alter eligibility rules must be dealt with by a Presidential Member of the Fair Work Commission under section 158 of the Act. They cannot be dealt with by the General Manager or her Delegate under section 159, even where the alteration simply changes ‘shall’ to ‘will’. To the extent the alterations to rule 5 are submitted for my consideration in the present matter, I dismiss them for want of jurisdiction.

Alterations to rule 26 - Sub-Committees

[10] Rule 26 enables the Committee of Management to establish Sub-Committees to further the work of the Association.

[11]      Sub rule 26(b), as amended, states:

A Sub-Committee will be comprised of Executive Members, Committee of Management Members, Members and Associate Members. All Sub-Committee members will be nominated to and approved by the Committee of Management. The Committee of Management can at any time, nominate a Committee of Management or Executive Member to any Sub-Committee provided that the President will be a Member of any Sub-Committee and will unless otherwise provided in these Rules, be entitled to participate and vote.

[2014] FWCD 7359

[12]      Sub rule 26(d), which has not been amended, states:

The Committee of Management shall have the power to delegate to a Sub-Committee such of its powers for so long, and for such purpose, as it sees fit other than the Committee of Management’s power of delegation.

[13] As set out in rule 25, the Committee of Management is ‘entitled to exercise all the powers of the Association’. Amongst other things, it is empowered to ‘decide the general policy of the Association’, ‘vary, alter, over-rule or otherwise deal with the decisions of the Executive Members’, as well as alter the rules of the organisation. In my view, in accordance with sections 9 and 143(1) of the Act, these are powers which belong to persons who are elected to office and cannot be delegated to persons who do not hold office. Rule 26(a), as amended, states that Sub-Committees are comprised of Members and Associate Members, who are not elected to office.

[14] Many of the powers of the Committee of Management are capable of being delegated to persons who do not hold office, and therefore the alterations to rule 26 are capable of certification. However some of the Committee of Management’s powers, including but not limited to those listed in paragraph [13] above, cannot be delegated to a Sub-Committee the composition of which includes persons who are not elected to office. Rule 26 should be read subject to section 9 of the Act, which sets out the powers that must be assumed by offices of an organisation.

Typographical errors

[15] I note that the rulebooks issued on 20 August 2010 and 3 January 2004 in relation to

applications R2010/62 and R2013/30 respectively contained a typographical error at rule 3.
The relevant section is set out below:

3. OBJECTS

a) The objects of the Association are to:

...

ix) affiliate with any body having like aims, memberships and objects on such terms
and
x) conditions as may be mutually agreed;

[16] Sub rule 3(a)(x) should properly be the continuation of sub rule 3(a)(ix), rather than a separate sub rule. As the current rules are not the true rules of the organisation it is my right

and duty to set the record straight.1 Consequently sub rule 3(a)(x) has been deleted and sub

rule 3(a)(ix) has been corrected to read:

ix) affiliate with any body having like aims, memberships and objects on such terms
and conditions as may be mutually agreed;

[17]      The remaining sub rules 3(a)(xi) - (xxvii) have been renumbered accordingly.

[2014] FWCD 7359

[18] On 20 October 2014, consent was received from Stuart MacDonald, Secretary of VIPA, under subsection 159(2) of the Fair Work (Registered Organisations) Act 2009, 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:

 In proposed rule 31(h), ‘Chariperson’ has been corrected to ‘Chairperson’.

[19] 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 Vehicle Builders Employees Federation of Australia (Vic Branch); Ex parte Allen 24 FLR 483

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