“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)

[2017] FWCD 515

[2017] FWCD 515

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

S 186(2)—Revocation of AEC Exemption

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)

(R2016/299)

MR Enright MELBOURNE,  30 January 2017

Revocation of AEC Exemption

1. This decision concerns an application made pursuant to s.186(2) of the Fair Work (Registered Organisations) Act 2009 (RO Act) by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), a registered organisation within the meaning of the RO Act.

1. Section 182 of the RO Act requires that all elections for office holders of federally registered organisations and branches of federally registered organisations must be conducted by the Australian Electoral Commission (AEC) unless an organisation or branch is exempted under the RO Act from that requirement. Since 1988 more than 150 AEC exemptions have been granted to federally registered organisations and, in normal circumstances, an exemption continues until revoked under the legislation.

1. Most of the election exemptions granted under the RO Act and its predecessor legislation were issued in the late 1980s and early 1990s. In 2015, I commenced a review of all of the exemptions remaining in force to establish if the grounds upon which the exemption was originally granted were still relevant.

1. As part of my general review, I wrote to the AMWU about its election exemption which was granted in 1991 to its predecessor in name organisation, the Amalgamated Metal Workers’ Union.

1. This application by the AMWU seeks to revoke the exemption granted in 1991 which enables it to conduct its own elections internally without the participation of the AEC. 

1. The exemption was originally granted to the Amalgamated Metal Workers’ Union on 14 March 1991 (the AEC exemption)[1] to cover the following collegiately elected office positions:

• Delegates to State  Council

• Delegates to State Administrative Committee

• Representatives to National Council

• State Vice President 

1. Following the grant of the AEC exemption the Amalgamated Metal Workers’ Union (as the organisation was then known) amalgamated with a number of other registered organisations namely: the Association of Draughting Supervisory and Technical Employees; the Vehicle Builders Employees Federation of Australia; the Confectionary Workers and Food Preservers Union of Australia and the Printing and Kindred Industries Union. On 2 December 2011 Fair Work Australia, the Fair Work Commission’s (the Commission) predecessor in name, wrote to the AMWU regarding the relevance of the AEC exemption following the change in its structure. Since this time the AMWU have made arrangements for the AEC to conduct its elections for all office positions, including those previously identified as being covered by the AEC exemption.

The legislation and regulations

1. The relevant legislative provisions are set out in sections 182 to 187 of the RO Act and regulation 137 of the Fair Work (Registered Organisations) Regulations 2009 (RO Regulations).

1. As I have indicated above, all elections for office holders of federally registered organisations and branches must be conducted by the AEC (s.182(1)) unless an exemption is in force pursuant to s.186 of the RO Act (s.182(2)).

1. An organisation or branch may apply under s.183(1) to the Commission to be exempted from the requirements of s.182(1). Section 186(1) of the RO Act provides that:

   (1)Where an application in relation to an organisation or branch has been lodged under subsection 183(1) and, after any objections duly made have been heard, the General Manager is satisfied:

   (a)that the rules of the organisation or branch comply with the requirements of this Act relating to the conduct of elections for office; and

   (b)that, if the organisation or branch is exempted from subsection 182(1), the elections for the organisation or branch, or the election for the particular office, as the case may be, will be conducted:

   (i)under the rules of the organisation or branch, as the case may be, and this Act; and

   (ii)in a manner that will afford members entitled to vote at such elections or election an adequate opportunity of voting without intimidation;

   the General Manager may exempt the organisation or branch from subsection 182(1) in relation to elections for the organisation or branch, or the election for the particular office, as the case may be.

1. Pursuant to s.186(2), the General Manager of the Commission is empowered to revoke an election exemption as follows:

   (2)The General Manager may revoke an exemption granted to an organisation or branch under subsection (1):

   (a)on application by the committee of management of the organisation or branch; or

   (b)if the General Manager:

   (i)is no longer satisfied as mentioned in subsection (1); and

   (ii)has given the committee of management of the organisation or branch an opportunity, as prescribed, to show cause why the exemption should not be revoked.

1. Relevantly, regulation 137(1) of the RO Regulations provides that:

   (1)An application by the committee of management of an organisation or branch under subsection 186 (2) of the Act for revocation of an exemption must:

   (a)be in writing; and

   (b)contain a written statement signed by a member of the committee of management stating that the committee of management has resolved to make the application; and

   (c)be lodged with the FWC.

1. In accordance with s.343A of the RO Act, the General Manager has delegated powers under s.186 to me as the Director of the Regulatory Compliance Branch, including the power to revoke exemptions under s.186(2).

The application

1. On 8 August 2016, I wrote to the AMWU seeking information about its elections, as part of my general review of election exemptions granted to registered organisations.

1. On 22 August 2016 the AMWU advised that the exemption in relation to elections would be considered by their National Council in December.

1. On 23 August 2016 the AMWU was advised in writing that a number of steps as set out in regulation 137 of the RO Regulations were required to be taken prior to my potential grant of revocation of the election exemption pursuant to s.186(2) of the RO Act.

2. On 9 December 2016 the AMWU wrote to me formally requesting that its AEC exemption be revoked (the application).  In accordance with rules 7, 8 and 10 of the AMWU’s rules, the application was made under the signature of the organisation’s National Secretary. The application included the resolution made by the AMWU’s National Council (the Committee of Management) as set out in its Meeting Minutes from 6 and 7 December 2016.

1. On 9 December 2016 and as an addendum to the application, a statement of from the National Secretary of the AMWU, a Committee of Management member, was submitted to me confirming that the AMWU Committee of Management had properly resolved to make the application.

Conclusion

1. On the information contained in the application, I am satisfied the application has been made under the rules of the organisation and in compliance with s.186(2) of the RO Act and regulation 137(1) of the RO Regulations.

1. Accordingly, I grant the AMWU’s application and revoke the AEC exemption issued in R86/1989 effective as at the date of this decision.

DELEGATE OF THE GENERAL MANAGER

[1] J7109, R86/1989

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