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

[2015] FWCD 3808

[2015] FWCD 3808

DECISION

Fair Work (Registered Organisations) Act 2009

s.189—Arrangement for conduct of an election

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

Plumbing and Allied Services Union of Australia

(E2015/177)

MR ENRIGHT	MELBOURNE, 13 JULY 2015
Arrangement for conduct of election.

[1]        On 27 May 2015 the Plumbing Division (the Division) of the Communications,

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

Australia (the Organisation) lodged with the Fair Work Commission (the Commission) the

prescribed information in relation to an election.

[2]        On 17 June 2015 the Commission wrote to the Division of the abovenamed

Organisation and requested further prescribed information, as the original prescribed

information had not listed the three Divisional Trustees required to be elected under the rules

of the Division. In addition, the correspondence requested advice about the scheduled date of

the meeting at which nominations are to open in accordance with the rules of the Division.

[3]        On 22 June 2015 the Division lodged further and amended prescribed information

which included three Divisional Trustees. Included with the amended and further prescribed

information was correspondence from Mr Earl Setches, the Divisional Secretary, advising that

the scheduled date of the meeting at which nominations are to open was 17 July 2015.

[4]         The amended and further prescribed information lodged was in relation to an election

for the following Divisional offices:

Divisional Council

Divisional President	(1)
Divisional Deputy President	(1)
General Secretary	(1)
Assistant General Secretary	(1)
Divisional Trustees	(3)

[5] Subsection 182(1) of the Fair Work (Registered Organisations) Act 2009 (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
[2015] FWCD 3808

183 of the Act. No previous exemption has been granted in relation to the abovementioned

offices.

[6]        Arrangements for the conduct of an election by the Australian Electoral Commission

for the abovenamed offices have not been made for a significant period of time. By failing to

lodge prescribed information in relation to an election an organisation or a branch contravenes

a civil penalty provision which may be the subject of application by the Commission for

orders in the Federal Court.

[7]        On 22 May 2015 the Regulatory Compliance Branch of the Commission wrote to the

Division of the abovenamed Organisation and informed it that the prescribed information was

due to be lodged with the Commission before the prescribed day in accordance with

Regulation 138(3) of the Fair Work (Registered Organisations) Regulations 2009 (the

Regulations). That 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]        On 26 May 2015 Mr Coffey, an Industrial Officer from the Division of the

abovenamed Organisation attended a meeting with representatives from the Regulatory

Compliance Branch of the Commission. Mr Coffey advised that the reason for the above

elections not having being lodged with the Commission at the scheduled time in previous

election years was that elections for the offices in question had been inadvertently conducted

by the Division rather than by the Australian Electoral Commission as required by subsection

182(1) of the the Act. The election of the Divisional Council is a collegiate election for which

the college of voters is elected as part of the Divisional Branch election processes. In addition,

the Divisional rules provide that some of the members of the Divisional Council are ex-officio

members of the Divisional Council as a result of being elected into a separate Branch office.

Mr Coffey advised that the Division was previously unaware that it was contravening a

legislative provision by conducting the Divisional quadrennial elections for its Divisional

Council offices internally and independently, but that he is now aware of this.

[9]        While I accept that the Division was not previously aware that elections for the offices

of Divisional President, Divisional Deputy President, General Secretary, Assistant General

Secretary and Divisional Trustees are required to be conducted by the Australian Electoral

Commission, the Division was nevertheless obligated under section 189(1) of the Act to lodge

the prescribed information in relation to elections for its offices with the Commission. The

fact that elections have not been lodged with the Commission for a significant period of time

does not obviate the need for the conduct of the current Divisional election. In all the

circumstances, I do not propose to frustrate the democratic function of the Organisation and

the Division and I therefore accept the lodgement of the current prescribed information. I

fully expect that the Division will voluntarily comply with its collegiate election requirements

in the future.

[10]      As mentioned above, the amended and further prescribed information lodged on 22

June 2015 included correspondence from Mr Earl Setches, the Divisional Secretary, providing

that the scheduled date for the opening of nominations was 17 July 2015. In accordance with

regulation 138(3) of the Regulations, the prescribed day for lodgement of the prescribed

information on this occasion was therefore 17 May 2015. The prescribed information was

lodged on 27 May 2015, and was therefore lodged eleven days late. The correspondence from

Mr Setches consequently made a request for an extension of time to lodge the prescribed

information in accordance with subsection 189(2) of the Act. The request stated that the delay
[2015] FWCD 3808

in lodgement was due to the scheduled date of the meeting at which nominations for the

election were due to open.

[11]      With regard to the request for an extension of time for lodgement of the prescribed

information, I have considered the explanations for the delay in lodging the prescribed

information provided by Messrs Setches and Coffey, as set out in the preceding paragraphs. In

the circumstances, I am of the view that the primary reason for the delay in lodgement was

related to the Division’s previous lack of awareness of its obligations in relation to its

collegiate elections. The Regulatory Compliance Branch of the Commission has already

commenced an Election Alerts initiative to assist registered organisations to be fully aware of

their election obligations, particularly in circumstances such as these where the structure of

the organisation can be complex.

[12]      I have also considered the fact that the prescribed information was lodged on the day

after the abovementioned meeting between Mr Coffey and representatives of the Commission,

at which the obligation to lodge the prescribed information was discussed and brought to the

Division’s attention. The prescribed information was lodged within five days after the

Division was initially informed of the obligation in writing. I am of the view that the

timeliness of the lodgement of the prescribed information after the Division became aware of

this obligation is a positive indication of its intention to comply with its regulatory

obligations. Having regard to the 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 Act but also in instruments or references pertaining to the governance

arrangements formulated by organisations themselves, I allow a later day for lodgement in

these circumstances.

[13]      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 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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