This statement has been prepared in response to media inquiries received by the Registered Organisations Commission on 12 October 2022.
On 29 August 2022 the Registered Organisations Commission (ROC) concluded its investigation into The Australian Workers’ Union (AWU) concerning its record keeping obligations relating to its registers of members. The investigation was conducted under section 331 of the Fair Work (Registered Organisations) Act 2009 (RO Act).
The investigation was commenced by the ROC on 17 February 2021 and related to the National Office and each of its branches (excluding its Victorian Branch).
The RO Act requires organisations to keep a register of their members as at 31 December each year, to retain those records for 7 years, and to regularly remove unfinancial members from the register. It also requires organisations, as part of their annual return of information to the ROC and annual operating report, to accurately report the number of members of the organisation.
The proper maintenance and keeping of the membership register is a fundamental requirement of a registered organisation’s operations and is important for the efficient, democratic functioning and accountability of the organisation.
The AWU ultimately conceded that it had not kept copies of its membership register as at 31 December in each of nine consecutive years. This means that for at least that period, the AWU cannot now identify its members from any reliable source.
Errors in reporting of membership figures
The investigation followed the identification by the regulator of anomalies in the AWU’s reporting of its member numbers recorded in its annual reports and operating reports over a nine year period from 2009 to 2017 (see AR2016/161).
In particular, the regulator identified that the National Office of the AWU reported incorrect membership figures in its operating reports in 5 consecutive years between 2010 and 2014, in apparent contravention of section 254.
Since those anomalies were first identified, the AWU has conceded that it cannot provide accurate historical membership figures since 2009. Despite the detailed investigation, the extent of the inaccuracies in each year remains unknown. It is likely that at any point in time the AWU’s actual membership was significantly overstated.
In evidence provided to the Senate Education and Employment Legislation Committee on 6 April 2022, the ROC made reference to the AWU having admitted to just under 25,000 contraventions of the RO Act as a part of this investigation (see related statement).
The investigation has concluded that the AWU may have contravened the RO Act on at least 27,140 occasions between 2009 and 2017.
Errors in registers where they were kept
While the AWU was predominantly unable to produce copies of its registers of members, where it did so the investigation uncovered systemic record keeping issues.
In respect of those records the investigation concluded that it is likely the AWU contravened civil penalty obligations in the RO Act including by:
- failing on at least 6,814 unique occasions to record in the register of the Queensland, South Australia and former Greater NSW branches the required details of a purported member, including their full name and address (section 230(1)(a))
- failing on at least 6,362 unique occasions to remove from the register of the Queensland branch a member who had purportedly resigned from of the AWU (section 230(2)(b)), and
- failing on at least 13,950 unique occasions to remove an unfinancial member from the register of the Queensland branch within the time required for doing so (section 172).
In many cases the above failings persisted and were continuing within the register of members for many years without being corrected. Where incomplete details were given for purported members, it is not clear whether the person listed in the register at the relevant time was a genuine member of the AWU. Each of the above failures contravene civil penalty provisions of the RO Act.
The AWU has contended that its membership systems since 2018 are compliant with all statutory requirements.
Keeping records of members is fundamental
A failure by a registered organisation to keep adequate membership records could prejudice affected members, disenfranchise or disadvantage genuine members, and result in members and the public being misled about the size of the organisation’s membership. Further, where copies of a register are not kept in accordance with statutory requirements, other serious and systemic record keeping issues may be concealed.
In this case the AWU’s problems were sustained and systemic over a period of nearly a decade. As democratic, member-led organisations it is fundamental for each registered organisation to have appropriate systems, policies and processes to ensure that it accurately and consistently maintains its register.
The Registered Organisations Commissioner has informed the AWU that it is in the public interest to commence civil penalty proceedings in the Federal Court of Australia in respect of the contraventions in this matter. The ROC presently is engaging with the AWU about the matters the AWU is prepared to admit with a view to narrowing the issues in dispute.
Background
In August 2020 the Federal Court ordered the AWU to pay $148,100 in relation to separate contraventions of sections 230 and 172 of the RO Act, which arose from specific conduct engaged in by the AWU’s Victorian Branch: Registered Organisations Commissioner v Australian Workers’ Union (No 2) [2020] FCA 1148. In the circumstances of those earlier findings, this investigation excludes further consideration of matters relating to the Victorian Branch.
The ROC informed the AWU in April 2020 it would investigate concerns relating to the AWU’s membership records, but taking a pragmatic regulatory approach, that the investigation would be deferred until the resource and other implications for registered organisations and regulators arising from the COVID-19 pandemic become clearer.