Organisations must hold elections and maintain up-to-date lists of office holders

Case Name

Registered Organisations Commission v Australian Hotels Association [2019] FCA 1516 External link (opens in new window)

What were the issues?

A branch of an organisation failed to arrange for elections over an extended period of time. It also failed to update its list of office holders and notify the regulator of changes to this list. The length of time when the contraventions occurred and the seriousness of the election contraventions were important considerations when determining the penalty imposed on the organisation.

What happened?

The Australian Hotels Association (AHA) admitted that its Queensland Branch failed to lodge information needed to initiate the conduct of elections for its office holders. It failed to lodge information required for the election of its State Board from 2003 to 2011 and for the election of its delegates to the AHA National Board annually for the years 2004 to 2012 as well as in 2014 and 2016. The AHA also admitted that the Branch failed to update its records when the holders of office changed between 2005 and 2017, and when the Branch did change its records it failed to notify the regulator within 35 days.

What can organisations learn from this?

Organisations must ensure that arrangements for the conduct of elections for office are made by lodging information with the regulator. Elections for office are fundamental to the democratic functioning of an organisation and allow members the opportunity to participate in the affairs of their organisation. It is not an excuse to fail to hold elections because of perceived obstacles to complying with the law.

It also highlights the importance of keeping an up-to-date list of office holders, and that the regulator must be notified of changes.

Organisations should note that if a contravention has occurred, the penalty may be reduced by: 

• putting in place mechanisms to ensure that there is no repetition of the conduct
• making early admissions, and
• providing substantive and meaningful cooperation with the regulator.

What did the judge say?

Justice O’Callaghan said it was a ‘serious contravention’ every time the organisation failed to initiate elections for office holders. He also found that the failures to initiate biannual elections for the members of the State Board were the more serious category of contravention. This was because as a result of the failure to hold those elections (at [59]):

… the State Board apparently continued to function as a body composed by way of an informal collective process of self-selection … The persons so acting conducted the affairs of the Branch without the formal or substantial authority and legitimacy required by the [Act] and the AHA rules.

Regarding the organisation’s obligation to keep a list of officer holders, the judge said at [48] that:

…“keeping” a list [of office holders] must incorporate a requirement to make changes to the list, at or about the time that there is a change to the relevant underlying circumstances … 

The obligation to notify the regulator of changes to the list of office holders was considered when he said at [50] that:

…those provisions require that there be an authoritative and reasonably current record, held by the regulator, identifying each of the officers who hold responsibilities and powers under the rules of organisations, so that it may be inspected by any person.

What was the outcome and the penalty?

The Court imposed a total penalty of $157,250 in total for failing to lodge prescribed information to enable the conduct of elections for offices on 16 occasions between 2003 and 2015; failing to keep accurate records of its list of officers on 17 occasions between 2005 and 2017; and failing to lodge timely notifications of change to its list of officers on 17 occasions between 2005 and 2017. 

When assessing the amount of the penalties, Justice O’Callaghan considered at [103]: 

…on the one hand, the need for general deterrence, the length of time over which the contraventions occurred and the seriousness of the election contraventions, and on the other hand, that the AHA admitted the contraventions at an early stage, co-operated with the Commissioner, and put mechanisms in place to ensure that there was no repetition of the conduct…

The AHA’s conduct was found to have contravened sections 189(2), 230(1) and 233(2) of the Fair Work (Registered Organisations) Act 2009. 

Court reference

VID 1442 of 2018 

Date of final orders

17 September 2019