Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

[2016] FWCD 4254

[2016] FWCD 4254

The attached document replaces the document previously issued with the above code on 5

July 2016.

The place of signing has been corrected.

James Hall

Senior Adviser

Regulatory Compliance Branch

Dated 6 July 2016
[2016] FWCD 4254
DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

Communications, Electrical, Electronic, Energy, Information, Postal,

Plumbing and Allied Services Union of Australia

(R2016/113)

MR ENRIGHT	BRISBANE, 5 JULY 2016
Alteration of other rules of organisation.

[1]        On 16 June 2016, the Communications, Electrical, Electronic, Energy, Information,

Postal, Plumbing and Allied Services Union of Australia (CEPU) lodged with the Fair Work

Commission (the Commission) a notice and declaration setting out particulars of alterations to

the rules of the CEPU – Section A (the National Rules).

[2]        The particulars set out alterations to rule 4 of, and the insertion of a new rule 35 into,

the National Rules. The alteration to rule 4 involves the insertion a new definition of

“Reporting Obligations” which denotes the obligations of the CEPU pursuant to Chapter 8 of

the Fair Work (Registered Organisations) Act 2009 (the Act) which essentially deals with the

keeping and lodgement of various records maintained by organisations registered under the

Act. For ease of reference, I shall adopt the terminology of the CEPU with regard to those

obligations. The proposed new rule 35 has three primary effects with regard to the fulfilment

of its Reporting Obligations, namely:

 explicitly vesting the National Council with the power to authorise the National

Secretary to take all steps necessary to ensure compliance by the CEPU with such

obligations. Such powers include, but are not limited to, authorising the National

Secretary to direct any officer or employee to provide any information or

document, access any premises of, and review any databases held by, the CEPU

and to require any officer or employee to provide such assistance as is necessary

for the purpose of satisfying the CEPU’s Reporting Obligations. Those powers are

expressed to apply to both the CEPU and its branches;

1

 requiring a “reporting unit” of the CEPU to obtain an audit report of any

membership numbers reported by the reporting unit as part of its Reporting

Obligations prepared by a suitably qualified auditor and in accordance with the

relevant auditing standards; and

 the establishment of a Governance Officer to be appointed by the National

Executive who shall carry out such duties as the National Secretary may direct.

[2016] FWCD 4254

[3]        The alterations in the present matter have been made as part of the organisation’s

response to the concerns I previously and directly raised with Mr Allen Hicks, the National

Secretary of the CEPU. Those concerns include:

 the viability of the membership data as reported by the CEPU pertaining to its

Reporting Obligations required to be fulfilled in 2016. For instance, in my

correspondence to Mr Hicks of 27 April 2016, I noted the discrepancies in the

membership numbers reported in successive lodgements within a relatively short

period of time by both the Communications Division of the CEPU (CWU) and the

Queensland Divisional Branch of the CWU and between the information provided

by both such that four different figures had been reported to the Commission

regarding the membership of that branch;

 the continued practice of the CWU lodging a separate annual return for that

Division. This is despite the Commission adopting the practice of requiring each

organisation to lodge a single and comprehensive annual return of information

pursuant to its obligations under s. 233(1) of the Act from 2015 and advising

organisations of this by various means including by direct correspondence,

updating the information available on website of the Commission and conducting a

webinar which is also available on the Commission’s website;

 the failure to provide either valid membership data or an appropriate declaration

pertaining to the CWU for the purposes of s. 233(1) of the Act as part of its

Reporting Obligations in 2016; and

 doubts surrounding the integrity of historical membership data lodged by the CEPU

in its annual returns of information lodged pursuant to s. 233(1) of the Act and as

part of its financial reporting obligations under Part 3 of Chapter 8 of the Act as the

relevant figures appeared to have been rounded out in three consecutive years and,

in two instances, were identical over consecutive years and between two different

reporting periods. In addition, I expressed my confusion regarding the

discrepancies between the membership numbers reported by the CEPU in its

financial returns and annual returns over the period of 2014 to 2015 such that, in

accordance with the former, the level of membership increased by 15,000 whilst

the latter reported a decline of around 8,000 members.

[4]        In subsequent correspondence, Mr Hicks responded to those concerns including

foreshadowing the alterations in the present matter and stated that the CEPU “is taking

determined steps to set and adopt best practice in its governance”.

[5]        On the information contained in the notice, I am satisfied the alterations have been

made under the rules of the organisation.

[6]        In my opinion, the alterations comply with and are not contrary to the Act, the Fair

Work Act 2009, modern awards and enterprise agreements, and are not otherwise contrary to

law. I certify accordingly under subsection 159(1) of the Fair Work (Registered

Organisations) Act 2009.

[2016] FWCD 4254

General governance observation for consideration by federally registered organisations

[7]        In July 2015, the Regulatory Compliance Branch (RCB) of the Commission requested

every federally registered employee organisation to participate in a survey designed to assist

the RCB as a regulator to better understand how membership registers are kept for the

purposes of s. 230 of the Act, including how they are populated, maintained and purged as

well as the complexities surrounding the circumstances in which a person is recorded as a

member of a registered organisation.

[8]        Amongst the information gathered from that process, the RCB received advice from a

number of registered organisations that:

 membership records are largely kept and maintained by, and considered to be the

responsibility of primarily, the branches of the organisation; and

 the national office of the organisation is reliant upon the information provided by

its branches when compiling membership figures for the organisation as a whole.

[9]        Several organisations also advised that their national offices experience varying

degrees of difficulty in collating membership records depending upon the quality of the

information contained within the data bases of the relevant branches.

[10]      A matter which further complicates the maintenance of an organisation’s membership

register is the issue of dual membership whereby a member of a state-registered association

also becomes a member of a counterpart registered organisation through the payment of a

single membership fee. Indeed, the CEPU itself was involved in proceedings before the

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Federal Court concerning this issue.

[11]      Given this broader context and taking into account my specific concerns regarding the

keeping and maintenance of the membership registers of the CEPU, I make the following

comments in relation to the alterations in the present matter.

[12]      Firstly and in my view, the alterations in the present matter represent a step toward the

process of specifically ensuring that the CEPU can satisfactorily fulfil its Reporting

Obligations. Although the alterations have arisen directly in response to concerns raised by

the Commission, it is clear to me that the alterations will ultimately benefit both current and

future members of the CEPU and will go some way in mitigating future risks associated with

the imposition of civil penalties under the Act.

[13]      Secondly, having regard to the regulatory experience of the RCB and the advice I refer

to above received in response to the 2015 membership process survey, it appears to me that

these types of alterations would also benefit other federally registered organisations and I

would recommend that serious consideration be given to these alterations by federally

registered organisations.
[2016] FWCD 4254

DELEGATE OF THE GENERAL MANAGER

Endnotes:

1

For the definition of a reporting unit see s. 242 of the Fair Work (Registered Organisations) Act 2009. Where an

organisation is divided into branches, each branch is a reporting unit unless a certificate issued by the General Manager

of the Commission pursuant to s. 245 is in force.

2

See Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

v Gray (2012) 207 FCR 548.

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