The Fair Work (Registered Organisations) Act 2009 (the RO Act) aims to ensure that organisations of employers and employees are properly regulated and function in a democratic manner.
The requirement that every office in an organisation and branch of an organisation is elected is an important element of ensuring democratic control.
Generally, the maximum term of office allowed under the RO Act is 4 years (section 145). However many organisations must hold elections more frequently as their rules provide for terms of less than 4 years.
In exceptional circumstances, the RO Act may allow for terms of office of up to 5 years for the purpose of synchronising elections in the relevant organisation (section 145).
The rules of an organisation must provide for election of the holder of each office at the national or branch level.
The rules must also provide for nominations, ballots, scrutineers and the term of office.
The rules may provide also provide for filling of casual vacancies.
The general requirements are as follows:
The RO Act allows organisations and branches to apply for exemptions from the requirement that the AEC conduct elections and/or from the requirement that elections be conducted by a secret postal ballot.
Further information regarding such exemptions is provided below.
Before arranging for the conduct of the election, the General Manager must be satisfied that an election is required to be held under the rules of the organisation.
To help the General Manager form that view, certain information must be lodged with the Commission no later than 2 months before nominations are due to open.
Failure to lodge prescribed information within this timeframe is a civil penalty provision pursuant to section 189 of the RO Act. The organisation or branch must lodge the following prescribed information:
When the election is complete, the AEC provides a written post-election report.
The report is given to the Commission and the relevant organisation or branch. It includes:
If the post-election report identifies rules that were difficult to interpret or apply, the organisation or branch must provide a written response to the AEC which specifies what action, if any, the organisation or branch intends to take.
Various offences exist in relation to the conduct of an election. They include:
The Commission became aware that a person had nominated for election for an office in a federally registered organisation and that a number of other officials, including a Branch Secretary, had also nominated that person to run for election for an office. The person nominating for election to an office had been released earlier in 2016, having served a term of imprisonment for prescribed offences within the meaning of section 212 of the RO Act. Unless otherwise granted leave by the Federal Court, the RO Act excludes people convicted of prescribed offences from eligibility for election for 5 years.
While the provisions of the RO Act relating to persons disqualified from holding office in organisations are not extensively litigated, they are important to ensure that registered organisations are accountable to their members, efficiently managed and operate effectively.
The Commission encourages all federally registered organisations to consider these provisions when candidates are nominating or are being nominated for election to offices within organisations.
The RO Act allows an organisation or branch to apply for 2 types of exemptions in relation to elections. They are as follows:
Such exemptions are granted by the General Manager of the Commission if he/she is satisfied that the relevant statutory requirements have been met. Similarly, the General Manager has the power to revoke an exemption if he/she is no longer satisfied that the grounds upon which the exemption was originally granted still continue to exist.
The exemption provisions were first inserted into legislation in 1988 by the Industrial Relations Act 1988 and remain effectively the same under the RO Act.
More than 150 exemptions have been granted, with most granted soon after 1988.
Many of the exemptions no longer operate as the relevant organisation has been deregistered and/or the relevant branch has been abolished.
Given that the majority of exemptions were granted a considerable time ago, the Commission is currently conducting a review of the exemptions that remain in force to assess whether they continue to operate as intended under the legislation.
The review will involve, among other things, the Commission writing to each organisation that has an exemption to obtain information regarding the conduct of recent elections under the exemption.
The following polls were conducted during the Elections webinar held by the Regulatory Compliance Branch on 8 February 2016.
Are the existing resources helpful?
Are the ways that we communicate helpful?
Are these materials sufficiently transparent?
Are webinars an effective tool for communicating with you?
Did you know about the 2 month time frame for lodging prescribed information?
Do you think the advisory letter system is a useful tool?