Australian Education Union

[2020] FWCD 6312

[2020] FWCD 6312

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

Australian Education Union

(R2020/187)

MURRAY FURLONG MELBOURNE, 30 November 2020

Alteration of other rules of organisation.

1. On 30 October 2020 the Australian Education Union (the Union) lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to its rules.

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

1. The particulars set out an alteration to Rule 30A – Conduct of Federal and Branch Elections.

1. The alteration to Rule 30A has been made in response to the unique circumstances created by the COVID-19 pandemic and its impact upon the conduct of elections by the Australian Electoral Commission (the AEC). In March 2020 the AEC suspended all Registered Organisation elections due to social-distancing and other restrictions introduced by the Federal and various State and Territory Governments across Australia. Although various electoral processes have since been able to resume, there remains a significant backlog which in many cases has meant that elections are yet to have been completed. This raises potential consequences for the current holders of office within the Union.

1. The amendment introduced by the Union aims to protect against these issues. It provides that the Union’s current office holders may continue in their positions until such time as their successors have been declared elected. Immediately upon declaration of their election the new office holders would take up their position and hold office until the next normal election.

1. There exists a legal doctrine of ‘holding over’. This principle accepts that at times there may be circumstances where, in order to ensure continuity of governance,[1]

which is essential to the effective operation of a Registered Organisation, an individual elected to office may remain in office until their removal, resignation or until another person is subsequently elected to that office[2]. The effect being that even if their term has nominally expired, the individual, in order to maintain continuity of the function of their position, may carry on in their position. The alteration proposed by the Union has the effect of incorporating this legal doctrine into the rules of the organisation for the avoidance of doubt.

1. In the circumstances of COVID-19 and having regard to the significant interruptions and delays impacting electoral processes I am satisfied that the proposed alteration is appropriate and will ensure the continued functioning of the organisation.

1. 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 United Firefighters’ Union [1968] 14 FLR 467

[2] McLure v Mitchell and ors [1974] 24 FLR 115

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