Australian Principals Federation

[2013] FWCD 9412

[2013] FWCD 9412

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Australian Principals Federation
(R2013/389)
MR ENRIGHT	MELBOURNE, 12 DECEMBER 2013
Alteration of other rules of organisation.

[1] On 6 September 2013 the Australian Principals Federation (APF) lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to the rules of the Australian Principals Federation.

[2] The particulars provide for the insertion of new rules 28A and Schedule 1 into the rules of the organisation. The alterations were made for the purpose of complying with provisions of the Fair Work (Registered Organisations) Amendment Act 2012 (the Amendment Act) regarding the rules of registered organisations. 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.

[3] The rule alterations were passed in accordance with the rules of the organisation by a special meeting of the Federal Council that was held on 6 September 2013.

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

[5] Regulation 126(1) of the Fair Work (Registered Organisations) Regulations 2009 (the Regulations) 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. Regulation 126(3) further provides that the General Manager may refuse to certify an alteration to the rules of a registered organisation under subsection 159(1) of the Act if regulation 126 is not complied with. The notification was lodged with the Commission on 6 September 2013.

[6] Under section 36(1) of the Acts Interpretation Act 1901, a period of time expressed to begin after a specified day is not taken to include the specified day. As such it would seem that the words ‘within 35 days after the alteration is made’ in regulation 126(1) mean that the day the alteration was made is not included. This interpretation was upheld in Moon v JLG

Industries (Aust)i which considered the words ‘within 14 days after’ in s.371 of the Fair Work Act 2009. Lucev FM determined that the day of the relevant act was not included in the period

‘within 14 days after’ii. I am satisfied that for the purpose of interpreting regulation 126(1) the day the alteration is made is not included ‘within 35 days after the alteration is made’. In

[2013] FWCD 9412

this case the 35 day period therefore began on 7 September 2013 and consequently the
notification lodged on 6 September 2013 was premature.

[7] However 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; it can be “any”, including the day that the alteration is made.

[8] By lodging this notification on 6 September 2013 the APF acted promptly to ensure certification of the alterations. Alterations to the rules of the APF should not be frustrated as a result of the organisation’s promptness. On this occasion I have exercised my discretion to allow an additional period of one day prior to the 35 day period, that being the date the alterations were made (6 September 2013).

[9] On 2 December 2013, Chris Cotching, President of the Australian Principals Federation, gave consent, 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 Item 3(2) of Schedule 1, the phrase ‘Item (1)’ is amended to read ‘sub- item (1)’.
	In proposed Item 3(4) of Schedule 1, the phrase ‘Item (3)’ is amended to read ‘sub- item (3)’.
	In proposed Item 4(2) of Schedule 1, the phrase ‘Item (1)’ is amended to read ‘sub- item (1)’.
	In proposed Item 4(4) of Schedule 1, the phrase ‘Item (3)’ is amended to read ‘sub- item (3)’.

[10] The Amendment Actiii provides that alterations to rules of an organisation for the purpose of making provision as required by the Amendment Act can be certified by the General Manager during a transition period which commenced on 29 June 2012. Any alteration to rules that is certified during the transition period, however, does not take effect until the date of certification or the commencement of Part 2 of Schedule 1 to the Amendment Act, whichever occurs later. Part 2 of Schedule 1 to the Amendment Act commences on 1 January 2014.iv

[11] In my opinion, the alterations comply with and are not contrary to the Fair Work (Registered Organisations) Act 2009 (the RO Act), the Amendment 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 RO Act as modified by item 38 of
Schedule 1 to the Amendment Act.

[2013] FWCD 9412

DELEGATE OF THE GENERAL MANAGER

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i Moon v JLG Industries (Aust) [2011] FMCA 343

ii Ibid at paragraphs 26-30

iii See Item 38 of Schedule 1 to the Amendment Act.

iv See Section 2 of the Amendment Act.