CPSU, the Community and Public Sector Union - SPSF Group, Western Australian Prison Officers' Union Branch - [2015] FWCD 7097

No judgment structure available for this case.

[2015] FWCD 7097

DECISION

Fair Work (Registered Organisations) Act 2009
s.189—Arrangement for conduct of an election
CPSU, the Community and Public Sector Union
(E2015/252)
MR ENRIGHT	MELBOURNE, 15 OCTOBER 2015
Arrangement for conduct of election.

[1] On 8 October 2015 I issued a decision in relation to prescribed information lodged by

the Western Australian Prison Officers’ Union Branch of the Community and Public Sector

Union’s SPSF Group (the Branch) [[2015] FWCD 6946]. The decision arranged for the

Australian Electoral Commission (the AEC) to conduct an election for three Branch Delegates

to the SPSF Group Federal Council of the CPSU, the Community and Public Sector Union

(the Union).

[2] I issued that decision on the basis of prescribed information lodged by Mr John Welch,

the Secretary of the Branch, on 18 September 2015. Mr Welch advised that under Rule 3.2 of

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Chapter C of the Union’s rules the Branch is entitled to four Delegates

. One position is

presently filled. On this basis Mr Welch advised that an election is due for three Branch

Delegates to the SPSF Group Federal Council. On its face Rule 3.2 so provides.

[3] On Monday 12 October 2015 the Commission was contacted by the AEC, who

advised that Rule 3.2 must be read subject to a number of other rules. Schedule A of the

Chapter C of the Union’s rules sets out transitional rules for the Union’s SPSF Group. Rule

1.3(a) of Schedule A provides that the provisions of Rule 3.2 do not take effect until the

elections scheduled for 2016. Rule 1.3(b) of Schedule A states that the Branch is entitled to

one Delegate to Federal Council in the meantime.

[4] I have re-examined the rules of the Union. I accept the construction of the rules

advanced by the AEC. It is clear that the Branch is not entitled to a further three Delegates to

SPSF Group Federal Council until the scheduled elections in mid-2016 take place.

[5] Section 189 of the Fair Work (Registered Organisations) Act 2009 (the Act) requires

me to arrange for the conduct of an election if, among other things, I am satisfied that an

election is required to be made under the rules of an organisation.

[6] In my decision of 8 October 2015 I concluded that I was satisfied that an election is

required to be held under the rules of the Union. However, as explained above, there was no

basis to be so satisfied. Consequently my decision to arrange for an election for three

Delegates to SPSF Federal Council was beyond power and, as such, infected by jurisdictional

error.
[2015] FWCD 6946

[7] In Minister for Immigration and Multicultural Affairs v Bhardwa, Gaudron and
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Gummow JJ stated

:

A decision that involves jurisdictional error is a decision that lacks legal foundation
and is properly regarded, in law, as no decision at all…
…Once that is accepted, it follows that, if the duty of the decision-maker is to make a
decision with respect to a person's rights but, because of jurisdictional error, he or she
proceeds to make what is, in law, no decision at all, then, in law, the duty to make a
decision remains unperformed. Thus, not only is there no legal impediment under the
general law to a decision-maker making such a decision but, as a matter of strict legal
principle, he or she is required to do so. And that is so, regardless of s 33(1) of the
Acts Interpretation Act.
[8] Consequently the decision issued on 8 October 2015 is ‘no Decision at all’. The duty

to make a decision in response to the prescribed information lodged by the Branch on 18

September 2015 remains unperformed. This decision fulfils that duty.

[9] I am not satisfied that an election for the abovenamed offices is required to be held

under the rules of the organisation. Consequently I cannot make arrangements for the conduct

of an election by the Australian Electoral Commission under subsection 189(3) of the Fair

Work (Registered Organisations) Act 2009.

DELEGATE OF THE GENERAL MANAGER

Printed by authority of the Commonwealth Government Printer

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

[2015] FWCD 7097

15 October 2015