Draft rules stymie surgeons' bid to register association

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Draft rules stymie surgeons' bid to register association

The AIRC has dismissed an application by the Society of Australian Surgeons (SAS) to register under the Workplace Relations Act.

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The AIRC has dismissed an application by the Society of Australian Surgeons (SAS) to register under the Workplace Relations Act

Senior Deputy President Williams found that the society's draft rules, which became binding on the association from the date of lodgement, provided that changes could only be made by a Federal body which had not been elected.

Background

The SAS lodged an application for registration under the Workplace Relations Act on August 21, 2001. Objectors, including the Australian Salaried Medical Officers Association, the Australian Medical Association and the AMA NSW, made applications under s111(1)(g)(iii) of the Act that the Commission dismiss the registration application on the grounds that further proceedings were not necessary or desirable in the public interest.

An initial meeting of the SAS consisted of 72 members and voted to form a trade union to protect the industrial interests of surgeons. It also appointed a transitional president, secretary and treasurer, adopted a draft set of rules and authorised the transitional officers to do all things necessary towards registering the organisation under the Act.

Findings

 

Senior Deputy President Williams found that the set of rules received by the registry became binding on the association from the date of lodgement. 

He said the SAS's rules provided that they might only be altered by the Federal Council or, in certain limited circumstances, by the Federal Board. The parties accepted that the SAS did not have either a Federal Council or a Federal Board. Such bodies should have been elected in 2001, but no elections were conducted.

The rules made no provision for any transitional decision-making bodies with powers to conduct the affairs of the SAS pending the election of the Federal Council or the Federal Board. Nor was there any provision made for transitional officers. 

'It appears to me that, as a result of that hiatus in the rules, such transitional officers as may have existed before [the date of lodgement] would have ceased to hold office when the rules came into operation on that date.'

The Senior Deputy President said it appeared, therefore, that the decision-making bodies empowered by the rules to alter those rules did not exist. He also said that there was no person empowered by the rules either to bring about the establishment of such a body or to convene a meeting for the purposes of altering the rules or to conduct a vote of members for that purpose. 'It follows that the SAS is unable, pursuant to its rules, to alter any of those rules.'

Williams concluded the consequence of the SAS being unable to alter its rules, was that it could not function. 'It has no officers or decision-making bodies and it is incapable of obtaining the same. It cannot hold meetings. Any members that it has are powerless to do anything.'

He went on to say that it was strongly arguable that there was now no viable association in existence which was capable of being granted registration or which was capable of prosecuting the registration application before the commission. 

However, he said whether or not that was the case it was clear that the SAS was incapable of having and/or acquiring the characteristics required by s189 in order to qualify for registration. Consequently he dismissed the registration application.

See: Society of Australian Surgeons, AIRC - Williams SDP - PR934448 (10 July 2003).

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