The Registration and Accountability of Organisations Schedule (Schedule 1 to the Workplace Relations Act 1996) [the RAO Schedule], generally comes into operation on 12 May 2003. The RAO Schedule contains most of the matters previously dealt with in the body of the Workplace Relations Act 1996 [ the Act], which relate to the registration and functioning of organisations of employers and employees under the Act. The Workplace Relations Legislation Amendment (Registration and Accountability of Organisations) (Consequential Provisions) Act 2002 [the RAOCP Act], deals with various transitional provisions arising from the introduction of the Schedule.
New provisions concerning elections take effect from 12 May 2003. These new provisions are set out in sections 182 to 199 of the RAO Schedule, and regulations 131 to 146 of the workplace Relations (Registrations and Accountability of Organisations) Regulations (the RAO Regulations).
The statutory scheme for elections in organisations, which has existed since 1989, continues. The Registrar is still required to arrange for the conduct of elections for offices by the Australian Electoral Commission (AEC), with provision being made for exemptions, however there have been some important changes.
The main changes are as follows:
Notification of elections
The AEC is now formally authorised to conduct elections for non-office positions in organisations and branches (ss182(3) and 187).
Election notifications now require more detailed reasons for the election to be stated as well as the closing day for the roll of voters1 as provided for under the rules of the organisation2.
*Note concerning exemptions: the existing exemption provisions have been retained at s183 and exemptions issued under the previous legislation will continue.
Conduct of elections
Secret postal ballots for an office must use a prescribed declaration envelope (s188)
The Register of members must be supplied to Returning Officer (on demand) (s191)
Organisations and branches are prohibited from using their property and resources to favour one candidate over another candidate in an election (s190)
Post-election reports by AEC (this is a new requirement)
AEC must provide a post-election report to the Industrial Registrar and the organisation (or branch) for which the election was conducted (s197)
An organisation (or branch) must respond to adverse post-election reports and make available relevant information to members (s198)
Organisation's rules concerning elections
Provision has now been made for the adoption of model election rules (s147)
Rules of organisations must now provide the closing day for the roll of voters - being a day no earlier than 30 days and no later than 7 days before the day nominations open (s143(3)).
Inquiries into elections by Federal Court of Australia
The AEC has new responsibilities to apply for inquiries, by the Federal Court of Australia, into alleged irregularities in elections for offices of organisations (s200).
The two issues that most directly involve the obligations of the Industrial Registry concerning elections, being Notification of elections and Post-election reports are discussed in more detail below. A sample notice of prescribed information, set out according to the new provisions, is also provided.
NOTIFICATION OF ELECTIONS
The general requirement that all elections for office holders of organisations and branches be conducted by the AEC through arrangements made by the Registrar continues to apply under the RAO Schedule (s182(1)). The expense of conducting such elections is borne by the Commonwealth.
Section 189 of the RAO Schedule requires the Registrar to arrange for the conduct of an election by the AEC once the prescribed information has been lodged. Before arranging for the conduct of the election, the Registrar must be satisfied that an election is required to be held under the rules of the organisation. This criteria reflects the terms of the previous legislation. Where the election is for a `non-office' position, the Registrar must also be satisfied that the organisation (or branch) has made a request under s187.
Note: further information concerning elections for non-office positions is provided below.
Organisations to notify Registrar of prescribed information
The prescribed information required to be lodged in the Registry to trigger the arrangements for the AEC to conduct an election has been modified to include notification of the following:
The above information is in addition to the existing requirement that the name and numbers of each office or position be provided as well as the identification of the electorate, the dates and times for the opening and closing of nominations and specification of the voting system to be used (whether by a direct voting system or a collegiate electoral system).
A sample notification of prescribed information is attached at the end of this facts sheet
Elections for `non-office' positions
A new provision has been introduced to formalise arrangements for the AEC to conduct elections for non-office positions.
Prior to the commencement of the RAO Schedule there was no formal mechanism to make arrangements for the AEC to conduct non-office elections, even though it may have been a requirement of an organisation's rules.
Under subsection 182(3) and section 187 of the RAO Schedule, organisations and branches can now request elections to be conducted by the AEC for positions in the organisation and branches that are not the holders of an office as defined under section 9 of the RAO Schedule. In such circumstances, as long as proper notice is given to the AEC and lodged with the Industrial Registrar, and the rules of the organisation require such an election, then the AEC must conduct the election.
It should be noted that an election for non-office positions will remain exempt from the Federal Court's jurisdiction relating to inquiries into election irregularities (s200).
Exemption from using AEC
The provisions for exempting organisations or branches from the requirement to use the AEC for the conduct of elections has been replicated at ss182(2), 183, 184, 185 and 186 of the RAO Schedule.
Exemptions previously granted remain in force
Exemptions previously granted under section 213 of the Workplace Relations Act 1996 are preserved by operation of the transitional provisions 4 .
Section 197 of the RAO Schedule requires the AEC to provide a written post-election report on the conduct of the election to the Industrial Registrar and to the organisation or branch for whom the election was conducted.
Contents of post-election report
If the AEC is of the opinion that the register of members made available to it for the purposes of a postal ballot contained an unduly large proportion of members' addresses that were not current or comprised workplace addresses, then the AEC must state that in the report (s197(3)).
Similarly, if the AEC is of the opinion that a particular rule was difficult to interpret or apply it must note that fact and must also refer to any relevant model rules, which in the opinion of the AEC, could assist the organisation or branch to address the matter (s197(4)).
Certain other details that must be included in the post-election report are:
• the declaration of the result of the election
• the number of written allegations (if any) of irregularities made to the AEC during the election
• action taken by the AEC in relation to those allegations
• any other irregularities identified by the AEC and action taken by the AEC in relation to those other irregularities (reg 141)
Post-election report to be given to Industrial Registrar and organisation (or branch)
The post-election report is to be given to the Industrial Registrar and the organisation or branch for whom the election was conducted within 30 days of the completion of the election (reg 141).
The AEC must publish a notice on its website advising that a copy of the report can be obtained on the request of a member who was eligible to vote in the election (reg 141).
Post-election reports will not apply to an election that commenced (i.e. nominations opened) prior to the commencement of the RAO Schedule (that is, prior to 12 May 2003)5.
Availability of post-election reports
In the case of elections which require a ballot, the AEC must advise each voting member of an organisation of the availability of a post-election report from the organisation or branch, or from the AEC, on the request of a member (reg 139). In addition, an organisation or branch that has a website must, as soon as practicable after receiving the post-election report, publish on its website a notice of the availability of a copy of such report (reg 141(4)).
Organisation or branch to respond to adverse post-election reports
An organisation or branch must provide a written response to the AEC within 30 days of receipt in the case of a post-election report which identified rules that were difficult to interpret or apply. (s198). If the report does identify such rules, this part of the report is referred to as the relevant extract (s198(3)).
Organisation or branch only required to respond if post-election report identifies difficult rules
If the post-election report of the AEC is not adverse and does not contain a relevant extract that refers to difficult rules then the organisation (or branch) is not required to take any further action.
Publication of "relevant extract" of AEC post-election report and publication of organisation or branch response to such extract - by journal or newspaper or website
An organisation or branch in receipt of an adverse post-election report concerning difficult rules must make available to its members the relevant extract of the AEC report and a copy of its response.
Section 198 and regulations 141 and 142 provide for the ways in which the availability of the AEC's relevant extract and the organisation's response is to be publicised to the membership. The general requirement is that the material is to be made available within 30 days of receiving the report from the AEC or by publishing the material in the next edition of the organisation or branch journal where it is reasonably practicable to do so. Without limiting the ways in which an organisation or branch complies with the publication requirements of subsection 198(3) an organisation or branch will comply if it does all of the following:-
• the organisation or branch is to publish the relevant extract and its response in the next edition of the organisation or branch journal that it is reasonably practicable to do so, and
• within 30 days give notice that free copies of the relevant extract and response is available to members who were eligible to vote in the election - this notice is to be published either in the next edition of the organisation or branch journal where it is reasonable practicable to do so or in an appropriate newspaper that covers the relevant geographic area, and
• the organisation or branch is to publish its response to the AEC report on its website (if it has one) within 14 days of giving this response to the AEC (reg 142(2)).
Relevant extract and response to be lodged in Registry
An organisation or branch must also lodge in the Industrial Registry a copy of the relevant extract and its response together with a declaration undertaking to provide a copy of the relevant extract and the response to any member on request (s198(6)).
Increased security of ballot material and new offences
The powers of electoral officials conducting elections have been strengthened to help ensure the security of ballot papers and so reduce the scope for irregularities or procedural defects (s193).
The RAO Schedule introduces several new offences in relation to elections.
* Bribery and interference - it is an offence to interfere with ballot papers, bribe a person, or threaten a person with violence or loss, for example to withdraw a nomination to stand for office or to vote in a particular way (s185).
* Use of violence - it is an offence to use violence or cause injury or loss to a person who has objected to an organisation's application for an exemption from the requirement that its elections be conducted by the AEC (s185).
* Assistance of candidates - it is an offence for an organisation's property to be used to help one candidate against another candidate in an election for office or other position (s190).
This material has been prepared by the Australian Industrial Registry as a general guide to the Workplace Relations (Registration and Accountability of Organisations) legislation. This material should not be treated as advice on the circumstances of any particular case. This material does not have any legal status; the relevant law is set out in Schedule 1 to the Workplace Relations Act 1996 (the RAO Schedule), the RAO Schedule Regulations, and the Workplace Relations Legislation Amendment (Registration and Accountability of Organisations) (Consequential Provisions) Act 2002.
Statement and Notice of Prescribed Information under Regulation 136
I, John Smith, Victorian Branch Secretary of the Australasian Workers Union, make the following statement:
I am the Victorian Branch Secretary of the Australasian Workers Union,
I am authorised to lodge the following prescribed information concerning forthcoming elections in the Victorian Branch of the Australasian Workers Union, and
I confirm that the following information is being lodged under subsection 189(1) of the RAO Schedule.
Signed: John Smith, Victorian Branch Secretary of the Australasian Workers Union
Dated: 15 May 2003
Branch President (Direct voting system)
Branch Vice-Presidents (2) (DVS)
Branch Secretary (DVS)
Branch Treasurer (DVS)
Branch Executive Committee Members (15) (DVS)
Branch Delegates to National Council (5 together with Branch Secretary who is ex officio a member of National Council) (Collegiate election)
Branch Councillors (2) (DVS)
Branch Assistant Secretary (DVS)
Branch Representatives to Trades Council (2) (Collegiate)
Branch Representative to ACTU (Collegiate)
Reasons for election:
election for offices and positions marked A and D respectively is required as the terms of office are due to expire in the normal course of events under the rules of the organisation.
election for offices marked B is required to fill casual vacancies that have recently occurred (documentary information relating to the resignation of the persons holding the offices of Branch Councillor is enclosed)
election for the office marked C is required because this is a new position that has been created under the rules.
The electorate for the direct voting system is the whole of the Branch.
The electorate for collegiate electoral system is by and from the Branch Committee (totalling 21 persons)
For offices to elected by direct voting system - the first Monday in June
For offices to be elected by collegiate election - at the AGM in September
For offices to be elected by direct voting system - 12 noon, first Friday in July
For offices to be elected by collegiate election - at the AGM in September
Cut off date for roll: in all cases: 7 days prior to the opening date for nominations - rule 22(g).
[The above sample Notice and Statement would satisfy each of the particulars required under s189(1) and subregulations 138(1)(a)-(g). The Notice and Statement are required to be lodged at least 2 months before the first day of nominations as set out in the rules of the organisation - a Registrar may allow for a later day - see subsection 189(2) and subregulations 138(2) and (3). The requirement to lodge election information under s189(2) is a civil penalty provision - s305 refers.]
1 Section 143(1)(e)(i) makes a new requirement, that for all direct voting system elections, the rules must make provision for the day on which the roll of voters closes. That day must be between 7 and 30 days before nominations open [s143(3)].
2 Item 26 of the relevant transitional provisions (the RAOCP Act) prevents the Industrial Registrar from reviewing the rules of organisations for any new requirements imposed by the RAO Schedule for a period of 6 months from the commencement of the RAO Schedule (that is, by 12 November 2003).
3 See footnotes 1 and 2 above
4 Item 2 of Part 1 of Schedule 1 of the Workplace Relations Legislation Amendment (Registration and Accountability of Organisations) (Consequential Provisions) Act 2002 provides:
"An authorisation, certificate, decision, declaration, determination, direction, exemption, injunction, order, notice or permission that:
(a) was made, given or granted under a repealed provision; and
(b) was in force immediately before commencement;
continues in force on and after commencement as if it had been made, given or granted under the corresponding provision of the RAO Schedule."
5 Item 34 of Part 1 of Schedule 1 of Workplace Relations Legislation Amendment (Registration and Accountability of Organisations) (Consequential Provisions) Act 2002.