Pharmacy Guild of Australia, the

[2014] FWCD 6241

[2014] FWCD 6241

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
The Pharmacy Guild of Australia
(R2013/498)
MR ENRIGHT	MELBOURNE, 16 SEPTEMBER 2014
Alteration of other rules of organisation.

[1] On 19 December 2013 The Pharmacy Guild of Australia (the organisation) lodged

with the Fair Work Commission a notice and declaration setting out particulars of alterations
to the rules of The Pharmacy Guild of Australia.

[2] The particulars provide for the insertion of alterations to rules 2 and 44 and the insertion of rules 44A and Part IV which includes rules 78, 79, 80, 81 and 82 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 National Council that was held on 19 December 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 19 December 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)[1]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’.[2] I am satisfied that for the purpose of interpreting regulation 126(1)

[2014] FWCD 6241

the day the alteration is made is not included ‘within 35 days after the alteration is made’. In this case the 35 day period therefore began on 19 December 2013 and consequently the notification lodged on 19 December 2013 was premature.

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

[2]Ibid at paragraphs 26-30

[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 time 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 19 December 2013 The Pharmacy Guild of Australia acted promptly to ensure certification of the alterations. Alterations to The Pharmacy Guild of Australia 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 (19 December 2013).

[9] 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.

DELEGATE OF THE GENERAL MANAGER

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