Australian Nursing and Midwifery Federation-Western Australian Branch

[2015] FWCD 4869

[2015] FWCD 4869

DECISION

Fair Work (Registered Organisations) Act 2009
s.189—Arrangement for conduct of an election
Australian Nursing and Midwifery Federation
(E2015/196)
MR ENRIGHT	MELBOURNE, 6 AUGUST 2015
Arrangement for conduct of election.

[1]        On 29 June 2015 the Western Australian Branch (the Branch) of the Australian

Nursing and Midwifery Federation (the ANMF) lodged with the Fair Work Commission (the

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

Branch President	(1)
Branch Executive Committee Members	(2)
Branch Councillors	(9)

[2]        On the same day the Branch also lodged with the Commission the prescribed

information in relation to an election due to insufficient nominations in a previous election

(E2014/171):

Branch Councillors (2)

[3]        Rule 51 of the ANMF rules deals with casual vacancies. Subrule 51.6 provides that

where an election has been held for any office in the AMNF or any of its branches but no

person has been elected, a further election shall be conducted. It further provides that in

conducting the latter election the casual vacancy election procedures shall, so far as

practicable, apply. Subrule 51.3 provides that where an election is required to fill a casual

vacancy, such election shall be conducted ‘as soon as possible’.

[4]        In my view, it is practicable, as contemplated by subrule 51.6, to conduct an election

as soon as possible where an election is required because insufficient nominations were

received in an earlier election.

[5] In a previous decision concerning the Branch (E2013/203; [2013] FWCD 3943), I

noted that the prescribed information for an election was lodged some eight months after the

declaration of the results formally indicated that the offices had not been filled. I also noted

that such a period did not appear to meet the requirement in subrule 51.3 for an election to be

held “as soon as possible” and that future prescribed information should be lodged with the

Commission in a more timely manner.
[2015] FWCD 4869

[6]        The circumstances of that decision are similar to those of the election currently before

me, for which the prescribed information was lodged approximately nine months after the

declaration of results formally notified the ANMF of several vacancies.

[7]        On 22 July 2015 the Commission wrote to the Branch and, with reference to the

previous decision in E2013/203, requested an explanation for what appeared to be an even

greater delay in lodging prescribed information in relation to the vacancies for the two Branch

Councillors than had occurred in E2013/203.

[8]        On 28 July 2015 the Commission received correspondence from the Branch Secretary

Mr Mark Olson. Mr Olson indicated that the Branch conducts elections each year and that the

Branch believed that because it had not received any enquiries from its members regarding

the unfilled 2014 casual vacancies, it believes that including the casual elections in the 2015

elections is conducting elections ‘as soon as possible’.

[9]        Mr Olson opined that the alternative would involve the Branch constantly calling for

elections and considered that such a scenario would be impractical.

[10]      In this regard I note that section 5(3)(d) of the Fair Work (Registered Organisations)

Act 2009 (the RO Act) provides that one of the standards set out in the RO Act is to ‘provide

for the democratic functioning and control of organisations’. A key component of democratic

functioning includes the conduct of regular scheduled elections to ensure that the number of

office holders elected by members of an organisation corresponds with the number provided

in its rules. It is a normal and reasonable expectation that registered organisations take steps to

ensure that they comply with the time-frame requirements set out not only in the RO Act but

also in instruments or references pertaining to the governance arrangements formulated by

organisations themselves.

[11]      In my decision in E2013/203 I advised the Branch that a period of eight months after

the declaration of election results did not appear to meet the requirement for an election to be

held ‘as soon as possible’. The logic of that analysis, requires me to now draw a similar

conclusion that lodging prescribed information nine months after the declaration of election

results does not meet the requirement for an election to be held ‘as soon as possible’.

[12]      It may be that lodging prescribed information for unfilled offices at what appears to be

annual elections for offices in the Branch is a matter of convenience for the Branch. In my

view, such a matter of convenience does not comply with sub rule 51.3 which requires that

the vacancy be filled by an election conducted as soon as possible.

[13]      Further, it appears from an analysis of the available material that the two Branch

Councillor offices which have been included in the prescribed information lodged for the

purposes of E2015/196 have now been vacant for a continuous period approaching 3 years

(since 2012).

[14]      I do not propose to frustrate the democratic function of the ANMF and its Branch to

conduct an election to fill the unfilled offices. However, I reiterate that future prescribed

information in relation to elections arising as a result of casual vacancies or insufficient

nominations must be lodged with the Commission in a more timely manner in accordance

with the organisation’s rules.

[2015] FWCD 4869

[15]      Having considered all of the available material and circumstances, 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 RO Act, I am making arrangements for the

conduct of the election by the Australian Electoral Commission.

DELEGATE OF THE GENERAL MANAGER

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