Restaurant & Catering Industrial

[2015] FWCD 7593

[2015] FWCD 7593

DECISION

Fair Work (Registered Organisations) Act 2009
s.189—Arrangement for conduct of an election
Restaurant & Catering Industrial
(E2015/251)
MR ENRIGHT	MELBOURNE, 9 NOVEMBER 2015
Arrangement for conduct of election.

[1]        On 22 September 2015, the Restaurant & Catering Industrial (the organisation) lodged

with the Fair Work Commission (the Commission) the prescribed information in relation to

an election for the following offices:

Executive Councillors (4)

President

Vice President (2)

Treasurer

[2]        Staff of the Commission contacted the organisation to discuss the timing and content

of the prescribed information. Further information was received from the organisation on 5

November 2015.

[3]        The organisation did not lodge the prescribed information before the prescribed day in

accordance with section 189(2) of the Fair Work (Registered Organisations) Act 2009 (the

RO Act).

[4]        On 4 November 2015, the Commission contacted the organisation informing them that

the prescribed information had not been lodged before the prescribed day. The Workplace

Relations Director of the organisation, Mr Parkes, informed the Commission that the delay

was due to the certification of rule alterations in July.

[5]        I have considered the organisation's verbal request for an extension of time and the

explanation for the delay in lodging the prescribed information as provided by Mr Parkes. As

stated, rule alterations were certified on 13 and 17 July 2015. These rules, amongst other

things, extended the term of office for future officers. The alteration to the rules did not affect

the date upon which nominations for the elections opened.

[6]        Under the rules, nominations for Councillors open not less than 60 days before the

AGM and the prescribed information is required to be lodged two months before the first day

when a person may become a candidate in the election. Consequently, for an AGM on 7
[2015] FWCD 7593

December 2015, the prescribed information was required to be lodged no later than 8 August

2015, a date that occurred three weeks after the certification of the rules in July.

[7]        I have also taken into consideration the circumstances surrounding three previous

elections of the organisation including the following:

The relevant prescribed information was lodged late in E2012/422 ([2013] FWCD

519) potentially exposing the organisation to a civil penalty provision by

contravening section 189(2) of the RO Act;

The relevant prescribed information was lodged late in E2013/327 ([2013] FWCD

10187) potentially exposing the organisation to a civil penalty provision by

contravening section 189(2) of the RO Act; and

The relevant prescribed information was lodged late in E2014/192 ([2014] FWCD

6473) potentially exposing the organisation to a civil penalty provision by

contravening section 189(2) of the RO Act.

The late lodgement of prescribed information in E2015/251 is the fourth consecutive

lodgement of prescribed information which has failed to meet the prescribed

statutory time lines.

[8]        I note that in each of the previously arranged elections above an extension of time was

granted. However, the continued failure by the organisation to comply with its statutory

obligations has reached the point where the discretion to continue to provide extensions,

unless exceptional circumstances apply, has in my view, been exhausted.

[9]        Having regard to the normal and reasonable expectation that registered organisations

take steps to ensure that they comply with the timeframe requirements set out in the Act, I

decline on this occasion to allow, in the formal sense intended by section 189(2) of the Act, a

later day for lodgement. I note the organisation is potentially exposed to a civil penalty

provision by contravening section 189(2) of the RO Act.

[10] The refusal of an extension of time under section 189(2) of the RO Act does not,

however, affect a determination of an election notification matter for the purposes of section

189(3) of the RO Act.

[2015] FWCD 7593

[11]      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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