Today’s correspondent says:
In Western Australian the Association of Volunteer Bush Fire Brigades of WA Incorporated has a constitution (2017) which states that all WA volunteer bush fire brigades are automatically members, and that membership is an opt out system. The clause states –
“Local Government Volunteer Bushfire Brigades that are formally registered in accordance with section 41 of the Bush Fires Act 1954 as amended at the time of this constitution coming into being are deemed to be members of the Association unless otherwise advised in writing by the Brigade to the Secretary in accordance with this constitution.
The constitution then goes on to provide an application and approval process for Brigades which are formed after the constitution comes into effect, which is a normal membership application and approval process.
Is this clause likely to be lawful, given the Association purports to represent brigades without their knowledge or consent? Your thoughts on this would be much appreciated.
The constitution of Association of Volunteer Bush Fire Brigades of WA is available via the website of the Australian Charities and Not For Profits Commission, as are the Constitutions of the other Associations referred to below.
The first thing to note is the WA Association is an association of Brigades. First and foremost, it is the Brigades and not the volunteer firefighters that are members of the Association. The Rural Fire Brigades Association Queensland Incorporated is also an association of Brigades (RFBAQ Constitution (July 2016) cl 5) as is Volunteer Fire Brigades Victoria (Association Rules (February 2018), cl 3.1). Compare that to say South Australia’s Country Fire Service Volunteers Association and the NSW Rural Fire Service Association where the members are the volunteer fire fighters, not the brigades (Constitution of the Country Fire Service Volunteers Association (November 2016), cl 5; Constitution of the NSW Rural Fire Service Association Incorporated (June 2019) cl 2.1.1)).
The Constitution Association of Volunteer Bush Fire Brigades of WA says it was accepted on 5 August 2017. Clause 8 is headed ‘Membership Transition’. It says:
Local Government Volunteer Bushfire Brigades that are formally registered in accordance with section 41 of the Bush Fires Act 1954 as amended, with Local Government and the State Agency responsible for administering the Bush Fires Act 1954 as amended, at the time of this constitution coming into being are deemed to be members of the Association unless otherwise advised in writing by the Brigade to the Secretary in accordance with this Constitution.
It is not clear what the transition is ‘from’ – presumably the previous Constitution that was replaced with the 2017 document (see cl 5). Whilst the language of the clause could be clearer, I think it’s meaning is obvious. As at 5 August 2017 any Brigade registered with both the relevant Local Government and the relevant department (now DFES) was, and unless they have advised the Secretary in writing, remains a member of the Association. Brigades that are not members by virtue of cl 8 must apply for membership (cl 11.1).
Notwithstanding what I said above, ie that first and foremost the members of the Association are the Brigades, individuals can be members. The Constitution says (at cl 10) ‘’For a person to become a member he/she must apply in writing to the Association”. That is not what is reported on the Association’s website. That says (at https://www.bushfire.org.au/about-us/) “Every registered member of a Volunteer Bush Fire Brigade in Western Australia is automatically a Bushfire Volunteer member…”.
Even though there is inconsistency between the website and the Constitution (and the Constitution must prevail), the idea that every member of a brigade is also a member the association is not unique to WA. The same is said to apply in South Australia (“CFS volunteers are automatically a member of the CFS Volunteers Association”); but in NSW members must apply to join the RFSA even if that is done by ticking ‘the ‘I Accept’ box at the bottom of your RFS membership application’ (https://www.rfsa.org.au/member-benefits/).
Even though cl 10 says of the Constitution of the Association of Volunteer Bush Fire Brigades of WA says an individual must apply for membership, clause 9.3 says
Any Brigade admitted to membership of the Association shall ensure that each member of the Brigade undertakes to abide by the Constitution and Business Rules of the Association and such further provisions as the Committee may from time to time direct.
It is not clear how a Brigade could impose those conditions on members of the Brigade if those members have not applied to be a member of the Association.
Freedom of Association
The International Covenant on Civil and Political Rights (ICCPR) cl 22 says “Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.” Joining an Association such as the Association of Volunteer Bush Fire Brigades of WA is consistent with that right. The Commonwealth Attorney General says:
There is no settled international law on whether the right to freedom of association encompasses the right not to be compelled to join an association, such as a trade union or professional association. In Australia, the Fair Work Act 2009 provides that persons are free to not become members of industrial associations.
Whilst there would be an issue if a brigade or an individual could not refuse membership that is not the case. The constitution provides that members may resign their membership, so membership of the Association is not compulsory even if membership is managed by an ‘opt out’ rather than ‘opt in’ system.
As the Commonwealth website (quoted above) says, ‘the Fair Work Act 2009 provides that persons are free to not become members of industrial associations’. The Industrial Relations Act 1979 (WA) s 96B says
An award, industrial agreement or order under this Act, or any arrangement between persons relating to employment must not —
(a) require a person —
(i) to become or remain a member of an organisation…
The Association of Volunteer Bush Fire Brigades of WA Incorporated is not an industrial organisation and is not governed by the Industrial Relations Act. In any event the Industrial Relations Act has provisions (akin to cl 8) that allow membership to be transferred where there are changes to the structure or rules of an association (see ss 71(9) and 72). Even if it were an industrial organisation a clause that says ‘everyone who was a member before we adopted this new constitution is a member now’ would not be objectionable. For a Brigade the issue would be if, prior to 5 August 2017 it was not a member of the Association under the old rules but was made a member by virtue of cl 8 when the new rules were adopted. I do not know if there were any Brigades in that position.
The Association of Volunteer Bush Fire Brigades of WA has no statutory authority or power. It is an association of like-minded entities (Brigades and members) that seeks to collectively advance their interests. Its success depends on the ability of the management team to persuade its members, government and the community that it is an effective representative body. (Compare that to Volunteer Fire Brigades Victoria and the Country Fire Service Volunteers Association, both of which are specifically mentioned in the governing legislation so have a statutory right to represent their members (Country Fire Authority Act 1958 (Vic) s 6G; Fire and Emergency Services Act 2005 (SA) s 69).
Membership if the Association is an ‘opt out’ system but only for brigades that were in existence on 5 August 2017. I cannot think of any situation where it would make sense to ask whether that clause was ‘lawful’ given that Brigades can leave the Association if they don’t agree with the direction the Association is taking. It could be a question if the Association tried to impose conditions on a Brigade eg a fine but they don’t have the power to do that. If a Brigade simply refused to do what the Association asked (or demanded) then the only sanction is to cancel the Brigade’s membership which might be mutually acceptable in any event.
I can see the issue with ‘opt out’ membership and if say there was an association that by its rules made me a member without telling me, I would not feel bound by its rules or by any outcome it might purport to negotiate on my behalf. But I find it hard to believe in the small world that is the Rural Fire Brigades of WA that any brigade leadership is not aware of the Association, its aims, and their right to resign should they wish to. It may be that in 2017 every brigade was consulted on that clause and agreed to it.
Clause 8 is said to be a transition clause presumably as the Association transitioned to the 2017 Constitution. It gave the Association a starting membership and any Brigade that wanted to leave has had 5 years to do so, and any new brigade could have joined. In the absence of any specific context that may have concerned my correspondent I cannot see any meaningful way to say that the clause is ‘unlawful’ but I’m sure if push came to shove and the Association wanted to insist that a Brigade executive do something that they did not want to do, this clause and membership of the Association would not compel the executive to act as directed by the Association.
This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.