Australasian Convenience and Petroleum Marketers Association

[2016] FWCD 7157

[2016] FWCD 7157

DECISION

Fair Work (Registered Organisations) Act 2009

s.189—Arrangement for conduct of an election

Australasian Convenience and Petroleum Marketers Association

(E2016/219)

MR ENRIGHT	MELBOURNE, 7 OCTOBER 2016
Arrangement for conduct of election.

[1]        On 2 September and 6 October 2016, the Australasian Convenience and Petroleum

Marketers Association (the Association) lodged with the Fair Work Commission (the

Commission) the prescribed information in relation to an election for the following offices:

Board of Management Representative South Australia

Board of Management Representative New South Wales

Board of Management Representative Tasmania

[2]        Having regard to the previously high levels of compliance by the Association as far as

the lodging of prescribed information is concerned, a number of unusual events have occurred

in this application.

[3]        Firstly, the initial prescribed information was not lodged before the prescribed day as

required by regulation 138(3) of the Fair Work (Registered Organisations) Regulations 2009

(the Regulations). If the Annual General Meeting is held on 7 December 2016, the prescribed

information should have been lodged by 18 August 2016.

[4]           Secondly, the initial prescribed information contained references to offices which

were not due for election thus requiring additional administrative intervention by the

Commission as well as the lodging of amended prescribed information.

[5]         Thirdly, in his statement dated 6 October 2016 which accompanied the amended

prescribed information, the National President of the Association appears to have used the

words ‘prescribed’ and ‘proscribed’ interchangeably. Because the meanings of those words

are remarkably different, it has been necessary for me to have interpreted the word

‘proscribed’ where it appears on a number of occasions in the correspondence as a

typographical error.

[6]        On the other hand and to the credit of the Association, its National President, Mr

Philip Molineux included in his statement of 3 September 2016 that the Association:

	recognises the importance of compliance with its statutory obligation; and
	has explored options to ensure compliance in the future.

[2016] FWCD 7157

[7]        While I acknowledge the candid nature of the concessions by the Association, it

ultimately appears that the reason statutory obligations of the Association have not been

complied with are no more or less than oversight linked with the changing of particular staff.

[8]        As I indicate earlier in this decision, there are matters in the application which go to

the credit of the Association although I am not satisfied that the routine changing of staff is a

sufficient ground to justify the failure to comply with a statutory obligation.

[9]        The Commission is committed to ensuring high levels of voluntary compliance by

registered organisations with their statutory obligations and it is incumbent on an organisation

to ensure that it has in place procedures to manage staff transitions so that the organisation

can meet its statutory and other obligations.

[10]      Having regard to the normal and reasonable expectation that registered organisations

take steps to ensure they comply with the time-frame requirements set out not only in the Fair

Work (Registered Organisations) Act 2009 (the Act), the Regulations and also in instruments

or references pertaining to their own governance formulated by the organisations themselves,

I decline on this occasion to allow, under section 189(2) of the Act, a later day for lodgement.

[11]      As the Association has correct highlighted in its correspondence, the failure to lodge

the prescribed information before the prescribed day therefore renders the organisation liable

for a civil penalty provision pursuant to section 189(2) of the Act.

[12]      The refusal of an extension of time under section 189(2) of the Act does not, however,

affect a determination of an election notification matter for the purposes of section 189(3) of

the Act.

[13]       I am satisfied that an election for the abovenamed offices is required to be held under

the rules of the organisation and, under subsection 189(3) of the Act, I am making

arrangements for the conduct of the election by the Australian Electoral Commission.

DELEGATE OF THE GENERAL MANAGER

[2016] FWCD 7157

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