Australian Education Union

[2014] FWCD 8563

[2014] FWCD 8563

DECISION

Fair Work (Registered Organisations) Act 2009
s.189—Arrangement for conduct of an election
Australian Education Union
(E2014/254)
MR ENRIGHT	MELBOURNE, 3 DECEMBER 2014
Arrangement for conduct of election.

[1] On 20 November 2014 the Australian Education Union (the Union) lodged with the Fair Work Commission the prescribed information in relation to an election to fill a casual vacancy for the remainder of the term of office in the following office:

Federal President

[2] Accompanying the prescribed information was a copy of the resignation email given

to the Union’s Federal Secretary by the Federal President. The email stated, in part, “I will be
resigning as Federal President on January 31 2015”.

[3] The Federal Rules of the Union are silent as to the manner or form of resignation from office. As a consequence[1], the vacancy does not immediately arise. Rather the office will

[1]See for instance Saddington v Building Workers Industrial Union of Australia and Anor; Ryan J, 2 July 1993, 49 IR 323

become vacant on or after 31 January next year. Because three quarters or less of the term of

office remains, the Federal Executive can fill the office either by appointment or election[2].

[2]Australian Education Union Federal Rule 37(3)(d).

[4]        In pressing for a decision at this time, the Union submits:

It is important the election be conducted as soon as possible to enable the

casual vacancy to be filled prior to the AEU Annual Federal Conference to be

held on 20-22 February, 2015[3].

[3]Prescribed information lodged by Susan Hopgood, Federal Secretary of the Australian Education Union; page 1.

[5] The Federal Conference is the supreme governing body of the Union[4]. Subject to a decision made by the Union’s members via plebiscite, the Federal Conference governs the

[4]Australian Education Union Federal Rule 23(1).

affairs of the Union[5]. The Federal President plays a pivotal role at Federal Conference,

[5]Australian Education Union Federal Rules 23(1), 29(8).

conducting and presiding over the meeting and signing the minutes thereof[6].

[6]Australian Education Union Federal Rule 40(1)(a).

[6] Section 189 of the Fair Work (Registered Organisations) Act 2009 relevantly

provides:

(3) If:

(a) the prescribed information is lodged with the FWC by the
organisation or branch...; and

[2014] FWCD 8563

(b) the General Manager is satisfied that an election is required to be

held under the rules of the organisation or branch; and

. ..

the General Manager must arrange for the conduct of the election by the AEC.

[7] The reference to General Manager includes a reference to me, as the General Manager’s Delegate, as a result of a delegation given to me under section 343A of the Act.

[8] The Union correctly points out that “it is usual for a decision regarding an election for a casual vacancy to be held after the date of resignation”7. However, the Union then refers to a decision of Vice President Watson as authority for the proposition that “a resignation is effective from the date of its submission”8.

[9] In Australian and International Pilots Association v Captain Michael Glynn9, the Vice President was dealing with an appeal against a refusal by Delegate Nassios to make arrangements for the conduct of an election to fill a casual vacancy. The appellant contended that the vacancy had arisen when a resignation was tendered. The resignation was tendered on 23 October 2010. By its terms it would take effect on 13 December 2010. The officer subsequently sought to withdraw his resignation. Delegate Nassios concluded that on the material before him, he was he was unable to find that a resignation had been effected and that a vacancy in the office had consequentially arisen.

[10] It is worth setting out His Honour’s reasons in the appeal at length as they bear directly on the present matter:

[24] Captain Glynn submits that his email of 23 October 2010... amounts to a conditional resignation with the condition precedent being the conclusion of the 2010 AIPA AGM. Captain Glynn submits that as he withdrew his resignation before this event occurred, his resignation never came into effect. He further submits that his resignation was of no effect as it was unsigned.

...

[26] The relevant legal principle is that a resignation from employment or office may be effected by the communication of proper notice... Resignation is a unilateral act. It is not a legal requirement that a resignation be accepted by the other party despite this being common practice...

[27] The AIPA Rules are silent on the giving of notice by elected Members of the AIPA CoM when resigning from office. The RO Act is also silent on this point. An implied provision of reasonable notice therefore applies. Further, Captain Glynn states in his 23 October email:

“I ... hereby serve notice that I will resign”.

[28] In my view, the proper construction of Captain Glynn’s email of 23

October 2010 is that it amounts to a notice of termination. His advice that his
[2014] FWCD 8563

resignation would take effect from the conclusion of the 2010 AIPA AGM constitutes a notice period and was not a condition precedent on which the effect of the resignation was dependent.

...

[29] I do not consider that the resignation needed to be personally signed. The email was sent by him on his own behalf with his name at the end of the email. In my view it was a valid resignation. For the reasons above, I find that Captain Glynn’s resignation was effected when he emailed his resignation to Captain Anderson on 23 October 2010.

Was the notice withdrawn?

[30] The relevant legal principles in relation to withdrawal of notice from employment or office of an organisation are well established. Once a notice to terminate has been communicated, it cannot be withdrawn except by mutual consent of the parties...

[32] As stated in the quote above, the principle is not confined to the context of paid employment and is applicable to positions of office in organisations.

[33] ...Parties may withdraw their notice without consent where notice was
given ‘involuntarily’ or ‘in the heat of the moment’...

[36] In order for there to be a valid withdrawal of a resignation, there must be a capacity of the organisation to agree to allow withdrawal of the resignation and there must be valid consent by an officer or body of the organisation authorised to give such consent.

[37] ...A resignation from an office of an organisation... has consequences under the rules of the organisation. It triggers a vacancy of that office, imposes obligations under the rules to fill that vacancy and creates rights of other members to stand for election and vote for a candidate in that election. In my view it is not open to any officer of the organisation to circumvent that process by accepting a withdrawal of a resignation.

...

[40]       It follows that the decision of the Delegate was in error and the appeal

must be upheld

[11] In the present matter, notice of termination has been given by the Federal President. Although the notice is in email form, it was sent by him on his own behalf with his name at the end of the email. There is no suggestion that the notice was given involuntarily or in the heat of the moment. The rules of the Union are silent as to resignation from the office of Federal President. Having regard to the period of notice and the duties of the office, reasonable notice has in my view been given. The decision of the Federal Executive “[t]hat the casual vacancy be filled by election by and from the Federal Conference in accordance with Federal Rule 37(3)(b)”10 is evidence of acceptance of the resignation by the Union. [2014] FWCD 8563

Because the rules are silent about resignation from the relevant office, including withdrawal of a resignation, those rules of the Union provide no capacity for the organisation to agree to allow withdrawal of the resignation and no officer or body of the organisation could be authorised to validly consent to a purported withdrawal in any event.

[12] It follows that an election is required to be held under the rules of the organisation or branch because a resignation has been effected and there is no capacity for that process to be reversed. This result is not altered by the fact that the notice period has not expired. That a person elected in the subsequent election will not immediately take up office does not mean that an election is not due under the rules in the present circumstances.

[13] As a result, I am satisfied that an election for the abovenamed office is required to be held under the rules of the organisation and, under subsection 189(3) of the Fair Work

(Registered Organisations) Act 2009, I am making arrangements for the conduct of the

election by the Australian Electoral Commission.

DELEGATE OF THE GENERAL MANAGER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR558364>

7 Prescribed information lodged by Susan Hopgood, Federal Secretary of the Australian Education Union; page 1.

8 Prescribed information lodged by Susan Hopgood, Federal Secretary of the Australian Education Union; page 2.

9 Vice President Watson; 11 March 2011; [2011] FWA 1223

10 Prescribed information lodged by Susan Hopgood, Federal Secretary of the Australian Education Union; page 1.