DECISION

Fair Work (Registered Organisations) Regulations 2009
Reg.33(b)(ii) RO Regulations

Aged & Community Services Australia
(D2020/2)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 28 JULY 2020

Application by organisation for Commission to approve procedures.

[1] Aged & Community Services Australia (165N) (Association) has applied, pursuant to reg.33(b)(ii) of the Fair Work (Registered Organisations) Regulations 2009 (RO Regulations), for the Commission to approve a procedure for a ballot of the Association’s members regarding an application for the cancellation of the Association’s registration as a registered organisation under s.30(1)(a) of the Fair Work (Registered Organisations) Act 2009 (RO Act).

[2] Regulation 33 of the RO Regulations provides as follows:

“33 Cancellation of registration (Schedule 1, s 30 (1) (a))

An organisation may apply under paragraph 30(1)(a) of the Act for the cancellation of its registration if approval has been given to the organisation to apply for the cancellation of its registration by a majority of the members voting at a ballot of the members taken:

(a) in accordance with any rules that apply; or

(b) if no rules apply—in accordance with:

(i) any rules of the organisation providing for the election of any of its officers by a direct voting system; or

(ii) if subparagraph (i) does not apply—procedures approved by the FWC.”

[3] Put simply, the Applicant contends that the Association’s rules do not contain any provisions dealing with cancellation of the Association’s registration as a registered organisation under the RO Act. Accordingly, a ballot cannot be undertaken in accordance with reg.33(a) of the RO Regulations. While rule 40.3 of the Association’s rules provides a rule for the election of officers by a direct voting system, the rule requires that the ballot be undertaken by a third party, the Australian Electoral Commission (AEC). The AEC has declined to conduct a ballot and therefore the procedure cannot be applied. In the result, the Association seeks the Commission’s approval of an alternative procedure in accordance with reg.33(b)(ii).

[4] The application was listed for a telephone mention hearing before me on 5 June 2020. The AEC was given notice of the mention and was directed to attend. The AEC was requested in the circumstances to reconsider exercising its discretion to conduct a ballot in the manner set out in rule 40.3, however the AEC refused to do so. The Applicant was asked to file written submissions is support of the orders sought in light of the AEC’s continued refusal to assist the Association in conducting a ballot in accordance with its rules. These were filed on 18 June 2020.

[5] On the basis of the material filed by the Association, I am satisfied that the Association’s rules do not make provision for ascertaining by a ballot whether a majority of members voting support the cancellation of its registration as an organisation under the RO Act. Consequently, the requisite ballot cannot be undertaken in accordance with reg.33(a) of the RO Regulations. In such circumstances, reg.33(b) of the RO Regulations applies.

[6] The Association properly concedes that rule 40.3 of the Association’s rules provides a rule for the election of officers by a direct voting system. 1 Rule 40.3 of the Association’s rules provides for a direct voting system for the election of the Association’s officers, specifying, inter alia, the election of directors “…shall be conducted by, and in accordance with such processes and procedures as may be recommended by, the Australian Electoral Commission…”. The application was accompanied by a supporting statement signed by Ms Patricia Sparrow, the Association’s Chief Executive Office. The statement of Ms Sparrow declares that the AEC has declined to conduct a ballot.2 This is consistent with the AEC’s position as expressed at the mention hearing. The Association contends that on a plain reading of rule 40.3, any election of the Association’s officers must be conducted by the AEC and because the AEC continues to decline to conduct such a ballot, it follows that the direct voting system is not available to the Association and therefore ‘does not apply’.3 I agree that, at least in any practical sense, rule 40.3 cannot be used to facilitate a ballot to ascertain whether a majority of members voting support the cancellation of the Association’s registration as an organisation.

[7] Accordingly, I am satisfied that rule 40.3 of the Association’s rules does not apply and a ballot of the Association’s members cannot be undertaken in accordance with any rules of the organisation providing for the election of any of its officers by a direct voting system. Regulation 33(b)(ii) is engaged.

[8] In short compass, the Association seeks the Commission’s approval of procedures that would see the Association’s members vote on a resolution for approval to apply to the Commission for cancellation of the Association’s status as a registered organisation. The vote will be in accordance with the draft notice of special general meeting set out at Attachment PS-7 of the witness statement of Ms Sparrow, dated 7 February 2020. The giving of the notice of special general meeting, holding of the special general meeting, and consideration of the resolution, is to comply with the requirements in the Association’s rules regulating these matters, in particular rules 16, 17 to 32, and 59 to 60.

[9] I consider the procedures set out above to be capable of approval by the Commission. I am satisfied that it is appropriate to grant the application and I do so.

[10] An order giving effect to this decision is separately issued in PR719634.

DEPUTY PRESIDENT

Appearances:

B Tallboys, solicitor for the Applicant
O Jones, for the Australian Electoral Commission

Hearing details:

2020
5 June
Melbourne (via telephone)

Final written submissions:

Applicant, 18 June 2020

Printed by authority of the Commonwealth Government Printer

1 Applicant’s submissions at [12.2]

2 Witness statement of Ms P Sparrow at [17] – [18]

3 Applicant’s submissions at [12.2]

In the matter of Aged and Community Services Australia, the applicant sought approval from the Australian Competition and Consumer Commission for its proposed procedures to comply with certain legislative requirements. The case was heard in the Federal Court of Australia. The applicant argued that the proposed procedures would allow for effective compliance with the legislative framework, ensuring that the organisation could continue to operate within the bounds of the law.

The legal issues before the court involved the interpretation of the relevant legislative provisions and the assessment of whether the proposed procedures were consistent with those provisions. The applicant contended that the proposed procedures were necessary for effective compliance, while the Commission argued that some aspects of the procedures were not in line with the legislative requirements.

The court found that the proposed procedures were largely consistent with the legislative framework. The applicant had demonstrated a clear understanding of the legislative requirements and had developed procedures that would enable compliance. However, the court identified some areas where the proposed procedures needed to be amended to align more closely with the legislation. Ultimately, the court determined that the applicant had made a sufficient case for approval of the procedures, subject to certain modifications.

The court ordered that the applicant's proposed procedures be approved, with the modifications identified by the court. The applicant was required to submit the amended procedures to the Commission for final approval within a specified timeframe. This decision provided clarity for the applicant regarding the legislative requirements and the steps necessary to achieve compliance.

Aged & Community Services Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established