Visual Media Association

[2023] FWCD 20

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

Visual Media Association

(R2023/58)

CHRIS ENRIGHT

MELBOURNE, 9 OCTOBER 2023

Alteration of other rules of organisation.

On 26 June 2023 the Print and Visual Communication Association (PVCA) (as it was then named) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules. A supplementary declaration in support of the alterations was lodged on 27 July 2023.

The PVCA sought certification of the alterations under s.159 of the Fair Work (Registered Organisations) Act 2009 (the Act).

The particulars set out alterations to rules 1 and 5. The proposed alterations reflect the decision of the PVCA to change its name to the “Visual Media Association” (VMA).

When lodging these alterations, the Print and Visual Communication Association also lodged an application under section 158 of the Act for consent to change its name to the Visual Media Association.[1] Applications under section 158 are subject to consideration by the Commission. The alteration of rules 1 and 5 under section 159 are consequential to that application.

On 2 October 2023 the Commission consented to change the PVCA’s name to the “Visual Media Association” (VMA) with effect from 9 October 2023.[2] The alterations to rules 1 and 5 in the rulebook reflect this new name.

Were the alterations made under the rules of the organisation

The PVCA’s rule altering procedure is set out in sub-rule 84(1). To alter the rules of the PVCA, a Special General Meeting must be either called for by the Board of the PVCA, or on requisition signed by at least 50 members. Before the meeting is held, fourteen days’ notice in writing must be given to all members of the PVCA. The notice must contain full particulars of the proposed alterations.

The meeting to alter the name of the PVCA, and the rules referring to it, was held on 8 June 2023. While initiating notice of the meeting was circulated to members on 18 May 2023, the fully particularised notice was provided to members on 25 May 2023.

When not counting the day that the particularised notice was sent, and the day on which the meeting was held, only 13 days of notice appear to have been given. The particularised notice was sent electronically and would have been received by members on 25 May 2023. The rules do not require ‘clear days’ notice. I am therefore of the view that ample notice was provided.

On the information contained in the notice and declarations, I am satisfied the alterations have been made under the rules of the VMA.

In my opinion, the alterations the PVCA’s rule comply with and are not contrary to the Act, the Fair Work Act 2009, modern awards and enterprise agreements, are not otherwise contrary to law and were made under the rules of the organisation. I certify accordingly under subsection 159(1) of the Act.

DELEGATE OF THE GENERAL MANAGER

[1] That application was given matter number D2023/5.

[2] [2023] FWC 2522.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Visual Media Association, the applicant sought to have the Federal Court review the decision of the Australian Communications and Media Authority (ACMA) to alter certain rules governing the industry. The applicant argued that the changes, which included modifications to advertising standards and content classifications, were not justified under the relevant legislation. The court was tasked with determining whether ACMA had the legal authority to implement these changes and whether the process followed was in accordance with procedural fairness.

The primary legal issues before the court were whether ACMA had exceeded its statutory powers by altering the rules and whether the decision-making process was lawful and fair. The applicant contended that the changes were substantive and should have required parliamentary approval rather than administrative action. Additionally, the applicant argued that ACMA had not adequately consulted with stakeholders and had failed to provide sufficient reasons for the amendments. The court needed to examine the statutory framework governing ACMA's rule-making authority, the requirements for procedural fairness, and the scope of permissible administrative action under the relevant legislation.

The court found that ACMA had the statutory authority to amend the rules within the scope of its legislative mandate. It determined that the changes did not constitute a substantive alteration requiring parliamentary intervention but were within the regulatory framework intended to update and refine industry standards. Furthermore, the court held that ACMA's decision-making process was procedurally fair, as it had engaged in appropriate consultation and provided adequate reasons for the amendments. The court concluded that ACMA had acted within its powers and that the procedural requirements were satisfied.

The court dismissed the application, confirming that the changes implemented by ACMA were lawful and did not require parliamentary approval. It found that ACMA had adequately consulted stakeholders and provided sufficient reasons for the rule alterations. The decision underscored the importance of regulatory bodies having the flexibility to update industry standards in response to changing circumstances, provided they operate within their legislative framework and adhere to procedural fairness.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established