17 September 2019
Today the Federal Court made declarations and handed down civil penalties against the Australian Hotels Association (AHA) relating to multiple contraventions of the Fair Work (Registered Organisations) Act 2009 (RO Act) and its predecessor legislation.
At a penalty hearing earlier this month the AHA admitted 50 contraventions of the RO Act by its Queensland Branch occurring over a period of more than a decade.
The Honourable Justice O’Callaghan made 30 declarations in respect of contraventions and ordered the AHA to pay civil penalties totalling $157,250.
That amount comprised $106,500 in respect of the Queensland Branch’s failure on 16 occasions between 2003 and 2016 to lodge prescribed information to enable the conduct of elections for offices, and $50,750 in respect of the Queensland Branch’s failure between 2005 and 2017 on 17 occasions to keep accurate records of its list of officers, and on 17 occasions to lodge timely notifications of changes to its list of officers.
In handing down his orders, Justice O’Callaghan said (at ) that determining factors in the penalty amount included, “in particular, 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 is no repetition of the conduct.”
Since the time of the contravening conduct engaged in by the AHA the amount of the penalties that might be available under the RO Act has significantly increased, such that the total of the penalties if the same conduct were to occur today could be significantly higher.
Registered Organisations Commissioner, Mark Bielecki, said that the judgment and the quantum of the penalties imposed was an important reminder to organisations of the need to comply with democratic processes and record keeping obligations to ensure that organisations and their officers are accountable to their members.
“This case was important because the statutory requirement to conduct elections for office within an organisation is vital to ensure that there is democratic control within an organisation and that the interests of members are protected,” Mr Bielecki said.
“Similarly, proper record keeping enables members of the organisation, the public and the regulator to identify the offices in an organisation and who, at any point in time, is able to, or has, exercised powers and fulfilled the duties of those offices,” he said.
Registered organisations enjoy rights, privileges and protections under the RO Act. However, those advantages come with important obligations. The obligations which were the subject of these proceedings are further explained below.
Section 189(2) provides that an organisation and each branch of the organisation must lodge with the Registered Organisations Commission, prescribed information as set out in regulation 138 of the Fair Work (Registered Organisations) Regulations 2009 (Cth) (RO Regulations) to allow for election of offices within an organisation. This is an essential element of ensuring democratic control because without it, elections are generally not able to be held.
Section 230(1) provides that an organisation must keep records including a list of the offices of an organisation and each branch of the organisation and a list of the names, postal addresses and occupations of the persons holding those offices.
Section 233(2) provides that any changes to an organisation’s records must be notified to the Commissioner within 35 days of when the change occurred (regulation 151 of the RO Regulations).
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