Independent Education Union of Australia-Victoria Tasmania Branch

[2016] FWCD 5325

[2016] FWCD 5325

DECISION

Fair Work (Registered Organisations) Act 2009
s.189—Arrangement for conduct of an election
Independent Education Union of Australia
(E2016/195)
MR ENRIGHT	MELBOURNE, 4 AUGUST 2016
Arrangement for conduct of election.

[1]        On 13 July 2016 the Victoria Tasmania Branch of the Independent Education Union of

Australia (the Branch) lodged with the Fair Work Commission the prescribed information in

relation to an election for the following offices:

Branch Delegates to Federal Council (10)

[2]        In correspondence dated 13 July 2016 the General Secretary of the Branch Debra

James 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”. The rules of the Independent Education Union of Australia do not provide a date

for the opening of nominations. However, rule 17(h) provides that the date for completion of

the election must be not later than 31 October. The prescribed information was lodged on 13

July 2016. If nominations open two months later, on 13 September 2016, this leaves

insufficient time for the election to be completed before 31 October 2016 should a ballot be

required. Ms James explained that the delay was due to the Branch changing its rules to

provide for four-year terms for Branch offices and, consequently, overlooking the fact that

elections for Branch Delegates to Federal Council are required under the Federal rules every

three years.

[3]        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 formulated by the

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

a later day for lodgement. 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.
[2016] FWCD 5325

[4]        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.

[5]        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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