Australian Municipal, Administrative, Clerical and Services Union v Registered Organisations Commission
[2017] FWCFB 6249
•15 DECEMBER 2017
| [2017] FWCFB 6249 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Australian Municipal, Administrative, Clerical and Services Union
v
Registered Organisations Commission
(C2017/4332)
VICE PRESIDENT HATCHER |
|
Appeal against decision [2017] ROCD 41 of Mr Enright at Melbourne on 18 July 2017 in matter number E2017/153.
Introduction and background
[1] The Australian Municipal, Administrative, Clerical and Services Union (ASU) has lodged an appeal, for which permission to appeal is required, against a decision made by a delegate of the Registered Organisations Commissioner, Mr Enright (delegate) on 18 July 2017 1 (decision). In his decision the delegate refused, under s 189(2) of the Fair Work (Registered Organisations) Act 2009 (RO Act), to extend time for the lodgment by the ASU of “prescribed information” relating to an election in the ASU’s “Queensland Together” Branch.
[2] The background to this appeal requires considerable explanation. The office of the Registered Organisations Commissioner (Commissioner) is established by s 329AA of the RO Act. The functions of the Commissioner are set out in s 329AB as follows:
329AB Functions of the Commissioner
The Commissioner has the following functions:
(a) to promote:
(i) efficient management of organisations and high standards of accountability of organisations and their office holders to their members; and
(ii) compliance with financial reporting and accountability requirements of this Act;
including by providing education, assistance and advice to organisations and their members;
(b) to monitor acts and practices to ensure they comply with the provisions of this Act providing for the democratic functioning and control of organisations;
(c) such other functions as are conferred on the Commissioner by this Act or by another Act;
(d) to do anything incidental to or conducive to the performance of any of the above functions.
[3] Section 329AC confers on the Commissioner the power to do all things necessary or convenient to be done for the purposes of performing his or her functions.
[4] The Registered Organisations Commission (ROC) is established by s 329DA of the RO Act, and under s 329DB it consists of the Commissioner and any staff assisting the Commissioner as provided for in s 329CA(1), which provides:
(1) The staff assisting the Commissioner are to be persons engaged under the Public Service Act 1999 and made available for the purpose by the Fair Work Ombudsman (within the meaning of the Fair Work Act).
[5] Under s 329DC, the ROC’s function is to assist the Commissioner in the performance of the Commissioner’s functions and, under s 329DD it has the privileges and immunities of the Crown. Section 343B(1) empowers the Commissioner, in writing, to delegate to a member of the staff assisting the Commissioner all or any of the Commissioner’s functions or powers under the RO Act, subject to specified exceptions and qualifications in s 343B(2)-(4A). As earlier stated, the decision concerned the exercise of power pursuant to s 189(2) of the RO Act. There was no issue in the appeal that the relevant power had been validly delegated to the delegate pursuant to s 343B(1).
[6] Section 189 of the RO Act provides:
(1) An organisation or branch of an organisation must lodge with the Commissioner the prescribed information in relation to an election that is to be conducted by the AEC.
(2) The prescribed information must be lodged before the prescribed day or such later day as the Commissioner allows.
Civil penalty: 60 penalty units.
(3) If:
(a) the prescribed information is lodged with the Commissioner by the organisation or branch (whether or not before the prescribed day or the later day allowed by the Commissioner); and
(b) the Commissioner is satisfied that an election is required to be held under the rules of the organisation or branch; and
(c) if the election is not an election for an office--the organisation or branch has made a request under section 187;
the Commissioner must arrange for the conduct of the election by the AEC.
[7] The “prescribed information” for the purpose of s 189(1) is specified in reg 138(1) of the Fair Work (Registered Organisations) Regulations 2009 (RO Regulations) and, broadly speaking, consists of information concerning the name of the offices or positions for which an election is required, the reason for the election, the number of offices or positions where they have the same name and the number is determinable, the name of the electorate where it comprises only members of a branch, section or other division, the beginning and end date and time of the nominating period, whether the voting system is direct or a collegiate electoral system. Reg 138(3) sets out the “prescribed day” for s 189(2) as follows:
(3) For subsection 189(2) of the Act, the prescribed day is the day occurring 2 months before the first day when a person may, under the rules of the organisation or branch, become a candidate in an election.
[8] Division Two A of the ASU’s Rules set out those rules specifically applicable to the Queensland Together Branch. Rule 20 of the Division establishes a Branch Conference, which consists of the Branch Executive, delegates representing Industry Sub-divisions, delegates representing members residing in Regional Zones as determined by the Branch Council, and delegates representing members identifying as being of Aboriginal or Torres Strait Islander origin. The precise number of Branch Conference delegates is not specified in the rules, but it is evidently a large body for the reason that rule 31(i) of the Division provides that each Industry Sub-division is entitled to elect one delegate to the Branch Conference for every 100 financial members.
[9] Under rule 21(a) of Division Two A, quadrennial elections of branch office holders are required commencing in 2015. The Australian Electoral Commission (AEC) conducted the 2015 elections, and declared the results of both contested and uncontested Branch Conference positions on 15 May 2015. However 161 Branch Conference positions remained vacant because of insufficient nominations. In the 12 month period after 15 May 2015, 12 delegates elected to Branch Council resigned, became ineligible to continue in office because of a change in employment or died. Since 15 May 2016 (that is, after the period of 12 months after the declaration of the quadrennial elections), a further 20 Branch Conference positions became vacant due to resignation, ineligibility or death.
[10] Rule 33 of Division Two A provides:
33 - CASUAL VACANCY
a. Casual vacancies arising in any office will be filled in accordance with the National Rules.
b. Nominations for casual vacancies for Branch Conference will be called in June each year when Quadrennial Elections are not scheduled.
[11] Rule 42 of the National Rules of the ASU relevantly provides:
42 - CASUAL VACANCIES
a. A casual vacancy shall occur in any office within the Union, where the holder of an office dies, resigns, is removed from office, or ceases to hold office, in accordance with the Rules and such vacancies shall be filled in accordance with this rule.
b. Where a casual vacancy occurs, and the unexpired portion of the term of office is more than twelve months, or three quarters of the term, whichever is the greater, the vacancy shall be filled by election in accordance with Part VII.
c. Where a casual vacancy occurs and the unexpired portion of the term of office is less than twelve months or three quarters of the term, whichever is the greater, the vacancy shall be filled as follows, in the case of casual vacancy in the office of:
. . .
iv. Branch Office holders: The Branch Council (or the governing body of the Branch) or the Branch Executive may appoint or elect an eligible member, in accordance with the Branch Rules, for such unexpired portion of the term.
. . .
[12] Rule 43.c of the National Rules also provides:
c. Provided that where an election has been conducted in accordance with these Rules and no successor has been duly elected the Returning Officer shall immediately conduct a further election as though a casual vacancy existed pursuant to Rule 42.
[13] On 12 April 2016 the ASU lodged prescribed information (subsequently amended on 5 May 2016 and 31 May 2016) for an election to fill the 12 Branch Conference vacancies which had arisen in the 12 months since the declaration of the 2015 elections on 15 May 2015, the 161 Branch Conference positions which had not been filled in the quadrennial elections because of insufficient nominations, and in addition 2 vacant Branch Council positions. It was determined that an election for these offices was required under the ASU’s rules 2, and the election was subsequently conducted by the AEC. After the election results were declared, there remained 113 Branch Conference positions unfilled because of insufficient nominations.
[14] On 16 May 2017, the Branch Secretary of the Queensland Together Branch sent a letter to the ROC which, omitting formal parts, stated:
“Queensland Together Branch of the Australian Municipal, Administrative, Clerical and Services Union (ASU) is seeking an extension of time to lodge Prescribed Information for elections for filling casual vacancies and vacancies arising from insufficient nominations on our Branch Conference.
Our Queensland Together Branch Rules state in Rule 33 b. that ‘nominations for casual vacancies for Branch Conference will be called in June each year when Quadrennial Elections are not scheduled.’ Therefore nominations are due to be called in June 2017.
Our Branch is currently in the process of completing the election for filling casual vacancies in our collegiate positions (E2017/37). This request for an extension of time is to avoid an overlap of the two elections which can be confusing for our members. Thank you for considering this request.”
[15] No response to this correspondence was provided by the ROC.
[16] On 30 May 2017 there was a meeting of the Branch Executive of the Queensland Together Branch. The following resolution was carried at this meeting:
“That the Branch Executive notes the declaration from the AEC for filling of casual vacancies and welcomes Ray Booker, Michelle Byard and Rohan Huguenin to Branch Executive. Branch Executive also notes the list of vacant Branch Conference positions and endorses the submission of the prescribed information to the Registered Organisations Commission.”
[17] On 1 June 2017, and in amended form on 9 June 2017, the ASU lodged prescribed information for an election to fill (among other things) a total of 133 vacant Branch Conference positions. This was made up of the 113 positions which had not been filled in the 2016 election and the 20 further casual vacancies which had arisen since 15 May 2016. Included in both lodgments (made in the form of a statement made by the Branch Secretary of the Queensland Together Branch) was the following:
“This statement IS NOT lodged at least 2 months before nominations open for the election below. The reason it is lodged after the prescribed time is:
a. There was a collegiate election under way in the Queensland Together Branch to fill vacant positions. Since it was likely that there would be consequential vacancies as a result of that election we wanted that election completed before commencing the process to fill Branch Conference positions so that the PI could be lodged for the consequential vacancies at the same time. The collegiate election (E2014/279 and E2017/37) was declared on 30 May 2017.
b. An extension of time request was lodged for this election on 16 May 2017.”
[18] On 13 July 2017 the Branch President of the Queensland Together Branch sent an email to a staff member of the ROC stating:
“I note the decision on our election has not been released yet. Can you advise if there is a problem and when we are likely to have a decision?”
[19] On 18 July 2017, as earlier stated, the delegate issued the decision under appeal. In the decision the delegate, after referring to the prescribed information lodged by the ASU, said:
“Legislative contravention
[2] The Branch did not lodge the prescribed information before the prescribed day as required by regulation 138(3) of the Fair Work (Registered Organisations) Regulations 2009. The prescribed information should have been lodged by 29 April 2017, at the latest. In its correspondence dated 16 May 2017, the Branch Secretary Alex Scott stated the delay occurred “to avoid an overlap of two elections which can be confusing for our members”.
[3] It appears from the Branch Secretary’s 16 May 2017 correspondence that on behalf of the Branch, Mr Scott made a considered decision to withhold lodging the requisite prescribed information before the prescribed day, based on his expressed opinion that an overlap of elections can be confusing for Branch members.
[4] In my view, there are few if any circumstances in which office holders of registered organisations are entitled to make considered decisions which have the effect of contravening statutory obligations, particularly based on a subjective consideration of what might ‘confuse’ members of any registered organisation.
[5] I note that at the time Mr Scott requested an extension of time to lodge the required prescribed information, the statutory obligation to lodge by 29 April 2017 had already elapsed and the contravention had already occurred.
[6] Even had the application been made prior to the obligation being due, I am not satisfied that a subjective consideration of what might ‘confuse’ members is a sufficient ground to justify a failure to comply with a statutory obligation. As I indicate above, I am less satisfied that there can be any justification in these circumstances for the making of a considered decision which has the effect of contravening a statutory obligation. In any event, it is open to a registered organisation to put a framework in place which encourages the democratic control of organisations while ensuring statutory compliance and minimising the chance of ‘overlap’ of elections.
[7] 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) but 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. 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.
[8] 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.
[9] 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.”
Appeal grounds and submissions
[20] The ASU’s notice of appeal contained two appeal grounds. The first challenged what was said to be the conclusion of the delegate that the ASU’s failure to lodge the prescribed information before the prescribed day rendered it liable for a civil penalty under s 189(2) of the RO Act. The second, advanced in the alternative, was that the delegate erred in refusing to allow a later date for the lodgment of the prescribed information.
[21] In support of the first ground, the ASU submitted that:
(1) the delegate had no jurisdiction to find that the ASU was liable to a civil penalty, and there was no requirement in the decision-making process for him to form an opinion about it;
(2) there was no obligation to lodge the prescribed information by the prescribed day because the ASU’s rules did not require the conduct of an election for the vacant positions, in that rule 42.c.iv allowed the vacant positions to be filled by appointment rather than election;
(3) to the extent that the ASU may have chosen under rule 42.c.iv to conduct an election to fill the casual vacancies, the delegate was wrong in concluding in that the prescribed date for the filing of the prescribed information was 29 April 2017, in that:
● rule 33 should not be read as restricting the capacity of the Queensland Together Branch to call for nominations at any time after a vacancy arose in the interests of democratic control of the branch;
● the decision to conduct the election was not made until 30 May 2017, after the prescribed date identified by the delegate had already passed;
● the AEC did not in fact open nominations in June or for some months afterwards, so the period between the filing of the prescribed information and the opening of nominations was in excess of two months;
(4) in relation to the Branch Conference positions remaining unfilled from the 2016 election, rule 43 of the National Rules simply required the AEC to conduct a further election immediately, and there was no requirement for the ASU to re-lodge the prescribed information, or no requirement to lodge it by 29 April 2017.
[22] In relation to the second ground the ASU submitted that:
● the delegate’s decision to refuse to allow a later date for lodgment was, in all the circumstances, plainly unjust and unreasonable;
● the history of elections for the ASU’s Queensland Together Branch since 2015 did not demonstrate any recalcitrance;
● the ASU had sought an extension on 16 May 2017, less than 16 days after the relevant date and before the decision was made to conduct an election, and received no response from the ROC; and
● the basis for the extension sought was reasonable, and the delegate gave no consideration for the reason advanced for the extension in the prescribed information lodged by the ASU on 1 and 9 June 2017.
[23] The ASU submitted that permission to appeal should be granted because the decision was attended by error which warranted consideration by a Full Bench, it had the potential to impact adversely on the operation and functioning of the ASU, and it was in the public interest to secure and maintain confidence in the processes of the ROC. The ASU sought that permission to appeal should be granted, the decision quashed, and that the Full Bench determine either than no extension was required under s 189(2) or that such an extension, if required, be granted.
[24] The Commissioner submitted that:
● the delegate’s statement about the ASU’s liability for a civil penalty was no more than an observation which had no consequence of its own, did not give effect to any decision-making power and did not amount to an appealable decision;
● rule 33.b of the Queensland Together Branch’s rules was expressed in unambiguous terms, and expressed a mandatory requirement for nominations for vacant positions to be called in June each year when quadrennial elections were not scheduled;
● the ASU’s submission as to the interpretation of the rules was antithetical to the principle of the democratic functioning and control of organisations insofar as it would confer a discretion on the Branch to delay or even abandon the process of arranging for such elections;
● the latest date for the calling of nominations was 30 June 2017, and the date ending 2 months before that was 29 April 2017;
● to the extent that the Branch had the power to choose between holding an election or appointing persons to fill vacancies, the rules should be read as requiring it to make that choice before 29 April so that rule 33.b could be complied with;
● the ASU had, in seeking an extension to file the prescribed information, accepted that this was the prescribed day;
● in respect of the positions unfilled from the 2016 election, because the ASU’s rules required a further election, s 189 required the lodgment of prescribed information;
● in respect of the delegate’s decision not to extend time, although it was conceded that the delegate did not address the reason advanced for the extension given by the ASU in its lodgment of the prescribed information, nonetheless the delegate exercised his discretion reasonably and in a manner that was free from error;
● alternatively, if the Full Bench found that the delegate erred in deciding not to allow a later date for lodgment of the prescribed information, it should not interfere with the separate decision in paragraph [9] of the decision that an election for the identified offices was required (unless the Full Bench formed a contrary view on this issue).
[25] The Commissioner and the ASU also made submissions about the proper role of the Commissioner in the hearing of the appeal. The Commissioner submitted that he participated in the proceeding as a contradictor, that no question as to his impartiality could arise because the Full Bench had no power to remit the matter back to the ROC, and that his role in the proceeding would be limited to assisting the Full Bench with his specialised knowledge of the RO Act and his view as to the appropriate interpretation of the ASU’s rules and to provide such other assistance as might be requested by the Full Bench. The ASU however submitted that the appropriate role of the Commissioner was confined to submitting an appearance and perhaps making submissions about any questions of power or procedure, otherwise the Commissioner would become a protagonist in the matter and endanger his impartiality. This was especially so in relation to the Commissioner proffering his view as to the interpretation of the ASU’s rules.
Consideration
Permission to appeal and the merits of the appeal
[26] The decision under appeal, we consider, involved two discrete decisions made by the delegate. The first was that the delegate declined to allow, pursuant to s 189(2) of the RO Act, a later date for the lodgment of the prescribed information. The second was that the delegate was satisfied, for the purpose of s 189(3)(b), that the election the subject of the prescribed information lodged by the ASU was required to be held under its rules and, accordingly, that he was obliged by s 189(3) to arrange for the conduct of the election by the AEC. The ASU’s appeal did not, in terms, challenge the second decision, and its submissions did not suggest that the elections the delegate has arranged to be conducted by the AEC should not proceed. Those elections have now, as we understand it, been completed and the results declared by the AEC. Accordingly there is no utility in formally re-examining the second decision and, to the extent that the ASU’s appeal seeks that the decision in its entirety be quashed, we would not grant permission to appeal in relation to the second decision. However, as we discuss later, the question of what the ASU’s rules actually required in respect of elections for the Queensland Together Branch is relevant to the question of an extension of time under s 189(2).
[27] In respect of what we have characterised as the delegate’s first decision, the ASU’s first ground of appeal focused on the delegate’s statement that his refusal to allow a later date for the lodgment of the prescribed information “renders the organisation liable for a civil penalty” under s 189(2). We accept the Commissioner’s submission that this is best characterised as an observation made by the delegate rather than any form of decision. It is clear that the delegate had no power to find that the ASU was liable to a civil penalty, and it was not necessary for the delegate to form a view about that matter in order to reach a conclusion as to whether to allow the ASU an extension of time to lodge the prescribed information under s 189(2). Although the observation may be the subject of criticism, in that it was gratuitous and might give rise to a perception of insufficient impartiality, we do not consider it to constitute an appealable decision.
[28] The ASU’s second appeal ground directly challenges the decision by the delegate under s 189(2) not to allow a later date to lodge the prescribed information. Both the ASU and the Commissioner submitted, and we accept, that this decision was a discretionary one. As such, appealable error of the type identified in House v The King 3 must be identified. We consider that the delegate’s decision under s 189(2) was attended by appealable error of that nature in that he failed to take into account the following two relevant and interconnected considerations:
(1) As the Commissioner conceded, the delegate did not address in his decision the statement made by the Secretary of the Queensland Together Branch in connection with the lodgment of the prescribed information that there was a “collegiate election” underway in the Branch which was not declared until 30 May 2017. That included elections for vacant Branch Executive, National Conference and Branch Council positions. The view expressed by the Secretary was that this election should be completed first because it would likely result in consequential vacancies in other positions, which would then desirably be filled at the same election, and that this justified a later date of lodgement being allowed. In short, the delegate did not take into account or consider the very basis upon which a later date of lodgement was sought by the ASU.
(2) Under rule 42.c, because the unexpired portion of the terms of office of Branch Conference delegates was less than three quarters of the term, there was no automatic requirement to hold an election at all to fill the casual vacancies; rather the rule 42.c.iv expressly confers on the Branch Council or the Branch Executive the power to choose between electing or appointing persons to fill the casual vacancies. The organisation could not, under the rules, validly have lodged the prescribed information before there had been a resolution carried at a meeting of the Branch Council or Executive for the conduct of an election rather than the making of appointments to fill the positions. No such resolution was carried until 30 May 2017. The result was that compliance with s 189(2) was not possible unless a later date of lodgment was allowed.
[29] Had these matters been taken into account, we consider it would have been available to the delegate to allow a later date for lodgment under s 189(2). Accordingly the failure of the delegate to have regard to these matters caused the exercise of his discretion to miscarry. In that circumstance, we consider that permission to appeal should be granted. Further, although for the reasons which follow we do not propose to substitute the decision not to allow a later date for lodgment under s 189(2) with a decision of our own, nonetheless we consider that the delegate’s decision should be quashed because of the nature of the appealable error which we have identified.
Disposition of the matter
[30] As the Commissioner pointed out, there is no power in s 607(3) of the Fair Work Act 2009 for us to remit the question of whether a later date for the lodgment of the prescribed information should be allowed under s 189(2) of the RO Act back to the Commissioner or his delegate, since s 607(3)(c) only allows for referrals of matters back to Fair Work Commission members. Under s 607(3)(b), we have the power to “make a further decision in relation to the matter that is the subject of the appeal or review”. It is necessary therefore for us to consider whether we should make a further decision and, if we determine we should, what that decision should be.
[31] In relation to the 113 positions left unfilled following the 2016 election, we are not positively satisfied that there was any requirement to lodge prescribed information by 29 April 2017. This is so for a number of reasons. First, we do not consider that the effect of clause 43.c was to require the conduct of a further election for unfilled positions in 2017. As we have earlier set out, the quadrennial elections for the Branch Conference were conducted in 2015, but not all positions were filled as a result of an insufficient number of nominations. Pursuant to rule 43.c, a further election was then conducted in 2016, but there still remained unfilled positions because of insufficient nominations. The ASU and the delegate both appear to have assumed that rule 43.c was to be understood as then requiring yet another election, but we very much doubt that is correct. To read the rule as requiring an indefinite number of repeated elections, each “immediately” conducted after the last, until such time as all positions are filled, would be oppressive and absurd. There is no guarantee that all positions on a large body such as the Branch Conference, which appear to be all or primarily volunteer positions, would ever be filled, thus leading to a requirement for an indefinite number of repeated elections. This is illustrated by the fact that even after the 2017 election conducted by the AEC as a consequence of the delegate’s decision - which was the third - a large number of Branch Conference positions still remain unfilled. A better, more reasonable interpretation of rule 43.c is that the expression “where an election has been conducted in accordance with these Rules” is to be read narrowly as referring only to any quadrennial election which leaves positions unfilled, and thus requires only one additional election (“a further election”) to be held. On this interpretation, the requirement in rule 43.c was discharged by the conduct of the 2016 election, and no further election was required.
[32] Second, and in any event, both the ASU and the delegate appear also to have assumed that the requirement in rule 33.b of the Queensland Together Branch’s rules that nominations for casual vacancies for Branch Conference positions be called in June of each year when Quadrennial Elections are not scheduled applied to any election for unfilled positions conducted pursuant to rule 43.c of the National Rules. We also doubt that this is correct. A position left unfilled at an election because of insufficient nominations is not properly to be characterised as a “casual vacancy”. Rule 42.c deems such vacancies to be casual vacancies only for the purposes of the application of the mechanism for filling casual vacancies in rule 42 of the National Rules. There is nothing in the text of rule 43.c which indicates that the deeming device used was also intended to pick up the requirement in branch rule 33.b, directed only to Branch Conference positions in the Queensland Together Branch, that nominations be called in June of each year, and the requirement in rule 43.c that the further election be conducted “immediately” is clearly inconsistent with rule 33.b being applicable. There is no basis therefore to conclude that 29 April was the date, for the purposes of s 189(2) of the RO Act, by which the prescribed information for a rule 43.c election had to be lodged. Because the obligation in rule 43.c was upon the Returning Officer (for relevant purposes, the AEC) to conduct the further election in accordance with the rule, compliance with s 189(2) could only be determined by reference to the date upon which the Returning Officer determined that nominations should open for any election conducted pursuant to rule 43.c.
[33] With respect to the 20 casual vacancies, we have earlier noted the submission of the ASU that rule 33.b of the Queensland Together Branch did not restrict the ability of the Branch to conduct an election for casual vacancies in Branch Conference positions at any time, so that there was no fixed requirement to lodge the prescribed information by 29 April in each non-quadrennial election year and there was no requirement for the ASU to seek an extension of time under s 189(2). That submission was advanced notwithstanding that it was the ASU which sought a later date of lodgement under s 189(2) and thereby, apparently, caused the delegate to issue his decision.
[34] If that submission was accepted, there would be no proper basis for us to make a further decision as to that matter. However we cannot accept that submission as correct. The practical purpose of rule 33.b is clear: with such a large body as the Branch Conference, it could be expected that casual vacancies would frequently arise, and the Branch was saved the task of repeatedly holding elections (if required) to fill them by the rule providing that only one such election per year was required. The terms of rule 33.b are fairly clear, and the difficulty with the ASU submission is that it deprives rule 33.b of any practical work to do.
[35] There is another difficulty however in relation to us making a further decision under s 189(2), and that is that we have some doubt that the information lodged by the ASU was actually the prescribed information required by reg 138(1) of the RO Regulations. We have earlier summarised what is required by that regulation. Specifically the prescribed information is required by reg 138(1)(d) to include “if the electorate comprises only members of a branch, section or other division of an organisation - the name of the branch, section or division”. The prescribed information lodged by the ASU stated, with respect to each Branch Conference vacancy (including the 20 casual vacancies) that the electorate was either the financial members of the relevant Branch Industry Sub-division or the relevant Regional Zone. That does not appear to us to be consistent with rule 42.c.iv, which on its face provides that where it is determined that an election is to take place to fill a casual vacancy, it is the Branch Council or Executive itself which elects the person to fill the vacancy, not the members of the relevant Industry Sub-division or Regional Zone. The appointment or election, as the case may be, is required by the rule to be “in accordance with the Branch Rules”, but we cannot identify anything in the Queensland Together Branch rules which might operate to alter what is expressly stated by the rule. We were not addressed on this difficulty, so we do not intend to express any final view about it, but we do not consider that we should make a decision as to whether a later date should be allowed under s 189(2) in circumstances where there may be a doubt as to whether the ASU has yet filed the correct prescribed information required by reg 138(1)(d).
[36] The only significance of a later time for lodgement of prescribed information being allowed under s 189(2) is that it operates to avoid any possibility of an organisation being held to be liable for a civil penalty under the subsection. However we do not understand the Commissioner to have instituted any proceedings against the ASU for a civil penalty under s 189(2), nor was there any indication that he intended to do so. In all the circumstances, we do not consider that we should make a further decision under s 189(2) as sought by the ASU. It remains of course open to the ASU to seek a further decision from the Commissioner or his delegate under s 189(2) should that be necessitated by changed circumstances.
The role of the Commissioner
[37] Although it is not necessary to do so for the purposes of the determination of this appeal, because this is the first appeal brought against a decision of the Commissioner or his delegate under the RO Act, we consider it appropriate to make some brief observations about the proper role of the Commissioner in such an appeal in response to the submissions of the parties on that question.
[38] In R v Australian Broadcasting Tribunal; Ex parte Hardiman 4 the High Court commented upon the proper role of a Commonwealth tribunal in proceedings challenging a decision of the tribunal as followed:
“There is one final matter. Mr. Hughes was instructed by the Tribunal to take the unusual course of contesting the prosecutors' case for relief and this he did by presenting a substantive argument. In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal.” 5
[39] Hardiman was a case involving judicial review of an administrative decision. The principle stated in that matter cannot automatically be applied to the current appeal, for two reasons. The first is that where in a proceeding there is a lack of a contradictor, it has been accepted that the position may be different and that it may be desirable for the administrative decision-maker to appear in the proceedings and “make such submissions as it thinks calculated to assist the court and, in an appropriate case, to argue against the applicant's case”. 6 The second is that the position may also be different in a merits appeal as distinct from proceedings for judicial review, and in such an appeal the role to be fulfilled by a decision-maker is to be determined having regard to the circumstances of each case and in the context of the legislation under consideration.7
[40] Under s 590(1) of the Fair Work Act, the Fair Work Commission may “inform itself in relation to any matter before it in such manner as it considers appropriate”. In an appeal such as the current one from a decision of the Commissioner or his delegate, s 590(1) confers on the Full Bench a broad discretion as to the extent to which it would receive submissions from the Commissioner. This discretion should not be artificially constrained by the automatic application of an “exceptional circumstances” test derived from Hardiman, as suggested by the ASU. However the underlying principle in Hardiman, namely the avoidance of endangerment to the appearance of impartiality on the part of the decision-maker, should we consider be applied in the exercise of the discretion under s 590(1) in relation to any appearance of the Commissioner in an appeal against a decision made by him or his delegate.
[41] It would generally, we consider, be appropriate for the Commissioner to appear and make submissions concerning his powers and procedure in such an appeal, and to assist the Full Bench in relation to the factual background of a matter. In this case, however, the Commissioner went further and advanced submissions seeking that the ASU’s rules be interpreted in a particular way in defence of the appeal. The decision of the delegate under appeal did not enunciate any such interpretation; rather the delegate seems to have proceeded, reasonably enough, on the assumption that because the ASU sought a later date of lodgement under s 189(2) of the RO Act it had not in fact lodged the prescribed information on the prescribed date. That is, the particular interpretation of the ASU’s rules submitted by the Commissioner’s lawyers in the appeal was not advanced in defence of the delegate’s reasoning, but simply to defeat the appeal. Such an approach might conceivably give rise to a perception of a lack of impartiality, particularly given that the Commissioner will necessarily be involved on an ongoing basis in regulatory dealings with the ASU in the future, and should have been avoided.
Conclusion
[42] For the reasons given, we make the following orders:
(1) Permission to appeal is granted.
(2) The appeal is upheld.
(3) The decision of the Commissioner’s delegate to refuse to allow a later date for the lodgement of the prescribed information by the ASU is quashed.
VICE PRESIDENT
Appearances:
C. Rawson on behalf of the Registered Organisations Commission.
C. Dowling of counsel with J. Payne on behalf of the Australian Municipal, Administrative, Clerical and Services Union.
Hearing details:
2017.
Sydney:
19 September.
1 [2017] ROCD 41
2 [2016] FWCD 2967
3 [1936] HCA 40; (1936) 55 CLR 499
4 [1980] HCA 13, (1980) 144 CLR 13
5 Ibid at [36]
6 Fagan v Crimes Compensation Tribunal [1982] HCA 49, (1982) 150 CLR 666 at 681-2 per Brennan J
7 See Commissioner of Police, New South Wales Police Force v Fine [2014] NSWCA 327; 87 NSWLR 1 at [66]-[82]
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