CPSU, the Community and Public Sector Union - SPSF Group, Western Australian Prison Officers' Union Branch

[2016] FWCD 5616

[2016] FWCD 5616

DECISION

Fair Work (Registered Organisations) Act 2009
s.189—Arrangement for conduct of an election
CPSU, the Community and Public Sector Union
(E2016/196)
MR STEENSON	SYDNEY, 15 AUGUST 2016
Arrangement for conduct of election.

[1]        On 22 July 2016, the Western Australian Prison Officers' Union Branch of the CPSU,

the Community and Public Sector Union, SPSF Group, lodged with the Fair Work

Commission the prescribed information in relation to an election. Subsequent to lodgement,

Commission staff conferred with the Branch about queries arising from the information

submitted.

[2]        Amended prescribed information was lodged on 11 August 2016 and again on 12

August 2016. The prescribed information concerns the following offices:

Branch Delegate to Federal Council (4)

Federal Vice President (1)

Branch Representative on Federal Executive (1)

[3]        In correspondence dated 11 August 2016, the Secretary of the Branch, John Welch,

noted that the prescribed information was not lodged before the prescribed day as required by

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

138(3) defines the prescribed day as “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”.

[4]        The rules of the CPSU, SPSF Group do not provide a date for the opening of

nominations. However, rule 32.1 provides that nominations for offices shall be called fourteen

days prior to the meeting at which the election is to be held. Rule 32.2 specifies that Branch

Delegates to Federal Council shall be elected at the first meeting of Branch Council and the

result is to be declared no later than 25 August. Similarly, rule 32.3 provides that the election

of Branch Representative on Federal Executive shall be conducted as soon as practicable after

the Branch Councillors take office. Finally, rule 32.4 requires that the election for the Federal

Vice President is to be conducted as soon as practicable after Branch Councillors take office.

I note that Branch Councillors took office from the declaration of the result of the branch

election in May 2016.

[5]        The prescribed information was lodged on 22 July 2016; two months after the Branch

Councillors took office. If nominations open two months later, on 22 September 2016, this

would prevent the election for Branch Representative to Federal Council being conducted so
[2016] FWCD 5616

that the result is declared not later than 25 August. Mr Welch explained that the delay was

due to the SPSF Group changing its rules to provide for four year terms, confusion arising

from transitional rules and from the timetable of their last election.

[6]        I am not satisfied that the above reason is a sufficient ground to justify the failure to

comply with a statutory obligation. 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 and formulated by

the organisations themselves, I decline on this occasion to allow, under section 189(2) of the

Act, a later day for lodgement. I draw the Branch’s attention to the fact that 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.

[7]        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.

[8]         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.

DELEGATE OF THE GENERAL MANAGER

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