Australian Hotels Association-Queensland Hotels Association
[2016] FWCD 45
•5 January 2016
[2016] FWCD 45
DECISION
| Fair Work (Registered Organisations) Act 2009 | |
| s.189—Arrangement for conduct of an election | |
| Australian Hotels Association | |
| (E2015/182) | |
| MR ENRIGHT | MELBOURNE, 5 JANUARY 2016 |
| Arrangement for conduct of election. |
[1] On 2 December 2015 the Queensland Branch (the Branch) of the Australian Hotels
Association (the organisation) lodged with the Fair Work Commission (the Commission) the
prescribed information in relation to an election for the following offices:
State Board
President (1) Senior Vice-President (1) Vice-President (3) Secretary / Treasurer (1) Trustee (2) Delegates to State Board representing the following Zones:
Northern Zone (6) Southern Zone (14)
National Board Delegate (in addition to ex-officio Branch President (4) Representative to National Accommodation Hotels Division Board (2) Northern Zone General Committee
Chairman (1) Senior Vice-Chairman (1) Vice-Chairman (2) Secretary / Treasurer (1) Trustee (2) Zone General Committee Representatives from each of the following Divisions:
Atherton Tablelands Division (1) Bowen Division (1) Cairns Division (1) Innisfail Division (1) Mackay Division (1) Townsville Division (1)
[2016] FWCD 45
Accommodation Hotels Division (1)
Southern Zone General Committee
Chairman (1) Senior Vice-Chairman (1) Vice-Chairman (2) Secretary / Treasurer (1) Trustee (2) Zone General Committee Representatives from each of the following Divisions:
Brisbane North Division (9) Brisbane South Division (9) South West Queensland Division (1) Bundaberg Division (1) Central Division (8) Dalby Division (1) Gold Coast Division (1) Gympie Division (1) Ipswich Division (2) Maryborough Division (1) Sunshine Coast Division (2) Burnett Division (1) Toowoomba Division (2) Warwick Division (1) Brisbane Accommodation Hotels Division (1) Gold Coast Accommodation Hotels Division (1)
Divisional Management Committees
Chairman (1) Senior Vice-Chairman (1) Vice-Chairman (1) Secretary / Treasurer (1) Trustee (2) Ordinary Committee Members (3)
Each of the above offices for each of the following Divisions:
Atherton Tablelands Division
Bowen Division
Cairns Division
Innisfail Division
Mackay Division
Townsville Division
Accommodation Hotels Division
Brisbane North Division
Brisbane South Division
South West Queensland Division
Bundaberg Division
[2016] FWCD 45
Central Division
Dalby Division
Gold Coast Division
Gympie Division
Ipswich Division
Maryborough Division
Sunshine Coast Division
Burnett Division
Toowoomba Division
Warwick Division
Brisbane Accommodation Hotels Division
Gold Coast Accommodation Hotels Division
[2] Previously, on 6 November 2015 the Commission had contacted the Branch and
requested prescribed information for the current election to be lodged as soon as possible. The
Commission had advised that the election was overdue under the rules of the Branch and that
the Branch was therefore in breach of s.189 of the Fair Work (Registered Organisations) Act
2009 (the Act). The prescribed information was lodged by the Branch within a month of that
advice, on 2 December 2015.
[3] On 18 December 2015 the Commission contacted the Branch to request the lodgement
of a written request for extension of time for lodgement of the prescribed information in
accordance with s.189(2) of the Act.
[4] On 21 December 2015 the Branch President, Mr Thomas McGuire, lodged the request
for extension of time. Mr McGuire stated that the reason the prescribed information was not
lodged within the timeframe provided in the Branch rules was that the Branch had intended
that the election would coincide with the nominal expiry of the two year terms of office,
which are due to expire in August 2016.
[5] In considering the request for extension of time and the reasons provided, I also note
the lengthiness of the approval process of the previous biennial election in E2013/140,
whereby the decision was issued by the Commission some nine months after the prescribed
information was lodged by the Branch. The election in E2013/140 was not finalised until
August 2014 and these incremental delays have impacted the Branch’s election timeline.
[6] In the circumstances, I accept that the Branch has demonstrated good faith in relation
to the request for an election of the majority of the Branch offices, which have two year terms
of offices. The prescribed information was lodged later than the dates specified in the rules
due to the Branch’s contemplation of the current two-year terms of office and the impact of
previous election delays. Nevertheless, regulation 138(3) provides that prescribed information
for elections is to be lodged 2 months before the day when a person may become a candidate
in the election, under the rules of the organisation or branch. I therefore urge the Branch to
lodge future prescribed information for elections in accordance with the requirements of the
Act and Regulations, with reference to the timelines set out in the Branch rules.
[7] I now turn my mind to the offices that are required to be elected annually under the
rules of the Branch. Sub-rules 50(e) and 51(b) of the Branch rules provide that arrangements
for an election for the Zone Committee Officers and Representatives to Zone Committees for
[2016] FWCD 45
the Northern and Southern Zones are required to be elected annually. I note that the
prescribed information for these offices was not lodged by the Branch in 2014. Hence, the
required annual election for Zone Committee Officers and Representatives to Zone
Committees has not occurred since the election in E2013/140.
[8] Subsection 182(1) of the Act requires the Australian Electoral Commission to conduct
an election for each office in an organisation or branch of an organisation unless an exemption
has been granted under section 183 of the Act. No exemption has been granted in relation to
the abovementioned offices. I therefore advise the Branch that its failure to lodge prescribed
information in relation to an election for the abovenamed offices in 2014 constituted a
contravention of s 189(2) of the Act which is a civil penalty provision and may potentially be
the subject of an application by the Commission for orders in the Federal Court.
[9] In this regard I have taken into consideration the fact that, in election matter
E2013/140, the Branch had expressed a concern that it could not attract sufficient numbers of
nominations to fill these offices under the current rules. For this reason, staff of the
Commission had spent a considerable amount of time prior to the election in E2013/140 in
providing advice and assistance to the Branch, on the understanding that the Branch would
remedy its election difficulties by undertaking a rule alteration process. This rule alteration
process could not take place until the Branch had current office holders to endorse a
resolution to alter the rules, and as stated above, the Branch’s elections were overdue.
[10] The Branch President, Mr Thomas McGuire, made the following statement in relation
to the election in E2013/140, in correspondence dated 12 November 2013:
“the proposed election is intended as a precursor to the approval of new rules for the
branch… it was agreed in principle between FWC and the AHA (QLD Branch) in
2012 that the most sensible and pragmatic course of action was to proceed to call
AHA (QLD Branch) elections under the existing Rules and… then to act to approve
the revised and simplified Branch Rules”.
The declaration of results in E2013/140 indicates that from 25 July 2014 the Branch had more
than a sufficient number of officers of the State Board to pass a resolution to alter its rules in
accordance with the quorum requirements specified in rule 19(c) of its rules. Nevertheless, to
date, the notification for that rule alteration has not been lodged with the Commission. It
therefore appears to me that the Branch has not taken steps to alleviate the previously
perceived issues with its elections in relation to the Zone Committee Officers and
Representatives to Zone Committees.
[11] It is the responsibility of the Branch to be proactive in ensuring that its rules provide
for efficient administrative processes, within the confines of the requirements of the Act.
Moreover, it is the responsibility of the Branch, and my full expectation, that the Branch
abides by its current rules.
[12] In all of the circumstances, pursuant to s.189(2) of the Act, I grant the extension of
time for lodgement of the prescribed information, up until the date of lodgement, in relation to
the offices that have two year terms of office under the rules of the Branch. However, I
decline to grant an extension of time in respect of the lodgement of the prescribed information
for the Zone Committee Officers and Representatives to Zone Committees, which have one
year terms of office under the rules of the Branch.
[2016] FWCD 45
[13] It is my full expectation that the Branch will take steps to ensure that it voluntarily
complies with its election requirements for future elections. Such steps include the holding of
both annual and biennial elections in accordance with the timelines provided in the Branch
rules.
[14] As I have indicated above, the failure by the Branch to lodge prescribed information
in these circumstances amounts to a contravention of s 189(2) of the Act rendering the Branch
liable to a civil penalty if proceedings are brought by the Commission in the Federal Court.
However, the fact that the Branch previously failed to lodge prescribed information in relation
to the Zone Committee Officers and Representatives to Zone Committees does not obviate the
need for the conduct of the current Branch election, and I do not propose to frustrate the
democratic function of the Organisation and the Branch.
[15] 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 Fair Work (Registered
Organisations) Act 2009, I am making arrangements for the conduct of the election by the
Australian Electoral Commission.
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