Australian Education Union-New South Wales Teachers Federation (NSWTF) Branch

[2015] FWCD 4539

[2015] FWCD 4539

DECISION

Fair Work (Registered Organisations) Act 2009
s.189—Arrangement for conduct of an election
Australian Education Union (NSWTF) Branch
(E2015/183)
MR ENRIGHT	MELBOURNE, 10 JULY 2015
Arrangement for conduct of election.

[1]        On 30 May 2015 the New South Wales Teachers Federation (NSWTF) Branch ‘the

branch’ of the Australian Education Union lodged with the Fair Work Commission the

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

Branch Secretary

Deputy Branch Secretary (4)

[2]         On 18 June 2015 the Branch lodged amended prescribed information requesting an

election for the following offices:

Branch Secretary

Deputy Branch Secretary – Communications and Administration

Deputy Branch Secretary – Industrial-Research/Professional Support

Deputy Branch Secretary – Post Schools

Deputy Branch Secretary – Schools

[3]        The Branch Secretary (Mr John Dixon) in the amended prescribed information

submitted the reasons for the amendment is that substantial rule changes were made to allow

the registration of the branch in the state jurisdiction and the de-registration of the NSW

Teachers Federation. Mr Dixon advised that the practice over many years in the NSW

Teachers Federation was to specify job descriptions for the four Assistant Secretaries (now

Deputy Secretaries in the branch) and now seeks a similar procedure for the forthcoming

election. Mr Dixon advised in the amended prescribed information that the Branch Council

made a deliberative decision at its 2 May 2015 meeting to allocate the four Deputy Secretaries

to specific roles with the control and supervision of designated Professional Officers or

Branch employees and undertook to amend the rules of the branch in the near future to clarify

the rules concerning the Deputy Branch Secretaries to accommodate those procedures.

[4] Section 189(3) of the Fair Work (Registered Organisations) Act 2009 provides the

General Manager must arrange for the conduct of an election by the Australian Electoral

Commission if he/she is satisfied that an election is required to be held under the rules of the

organisation or branch.
[2015] FWCD 4539

[5] Under section 671(1) of the Fair Work Act 2009 the functions in respect of making

arrangements for the conduct of elections of registered organisations by the Australian

Electoral Commission have been delegated to me.

[6]        Rule 23(1) of the rules of the New South Wales Teachers Federation (NSWTF)

Branch provides that there shall be four Deputy Branch Secretaries. No provision is made in

those rules for the Deputy Branch Secretaries as specified in the amended prescribed

information. As the rules do not provide for those specified offices I am not satisfied that such

offices exist and therefore I am unable to make arrangements for the conduct of an election

for those offices.

[7]        On 8 July 2015 staff of the Fair Work Commission provided advice to Mr David

Wynne (Deputy Branch Secretary) as to the effect of the branch rules in so far as the amended

prescribed information was concerned. While I am satisfied that the offices as specified in the

amended prescribed information do not exist in accordance with the relevant rules, I

acknowledge that it is open to the organisation or branch to amend its rules to give effect to

the apparent intention of the branch.

[8]        Prescribed information should be lodged with the Fair Work Commission within the

time prescribed by Regulation 138 of the Fair Work (Registered Organisations) Regulations

2009. Branch rule 38(10)(c) provides that nominations for the Branch Secretary and Branch

Deputy Secretaries open no later than 6 weeks prior to the Branch Council meeting designated

for the conduct of the election. The prescribed information provides that the Branch Council

has designated its meeting scheduled for 5 September 2015 as the designated meeting for the

elections and that nominations would open on 24 July 2015. Therefore, according to the rules

of the Branch, the first day when a person may become a candidate in the election is 24 July

2015. Accordingly, the prescribed information was required to be lodged before 24 May

2015. The prescribed information was lodged on 30 May 2015, some 6 days late.

[9]        The failure of the branch to lodge the prescribed information before the prescribed day

contravenes section 189(2) of the Act which is a civil penalty provision. Failures by

organisations to comply with civil penalty provisions may be the subject of applications by

the Fair Work Commission for orders in the Federal Court.

[2015] FWCD 4539

[10]      I am satisfied that an election for the offices of Branch Secretary and Deputy Branch

Secretary (4) 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

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