This statement has been prepared in response to media inquiries received by the Registered Organisations Commission on 18 November 2022.
On 17 November 2022 the Registered Organisations Commissioner commenced civil penalty proceedings against AWU in the Federal Court of Australia. The proceedings allege that the AWU has contravened civil penalty provisions of the RO Act relating to the keeping of its register of members.
Why did the Commissioner launch this lawsuit?
The Fair Work (Registered Organisations) Act 2009 (RO Act), which regulates organisations, requires every organisation including the The Australian Workers’ Union (AWU) 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 Registered Organisations Commission 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 democratic functioning and accountability of the organisation.
What has the effect of the AWU's conduct been?
The Commissioner will assert that the failure by the AWU to keep adequate membership records may have prejudiced, disenfranchised or disadvantaged genuine members, and has resulted in the size of the organisation’s membership being overstated. The effect of the failure to keep records means that the AWU cannot properly identify its members or the size of its membership over a 9 year period. This also means that the AWU cannot demonstrate that all financial members of the AWU at relevant times have been able to participate in the democratic functioning of the organisation. Further the failure to keep copies of its register across multiple branches is also likely to have concealed other serious and systemic record keeping issues.
In this case the AWU’s problems were sustained and systemic over a period of nearly a decade. As a democratic, member-led organisation it is fundamental for each registered organisation to have appropriate systems, policies and processes to ensure that it accurately and consistently maintains its registers. The full extent of the AWU’s non-compliance remains unknown.
This Commissioner in his statement of claim has alleged that the AWU contravened:
- section 254(2)(f) of the RO Act on 5 occasions by failing to accurately report the number of members of the AWU as at 30 June in the operating reports lodged by the National Office of the AWU in 2010, 2011, 2012, 2013 and 2014
- section 231(1) of the RO Act on 9 occasions by failing to keep for 7 years a copy of its register of members as it stood on 31 December in 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016 and 2017
- section 230(1)(a) of the RO Act on 6,814 occasions by failing to record in its register of members in respect of the Queensland, South Australian and Greater NSW branches the name and postal address of each member
- section 230(2)(b) of the RO Act on 6,362 occasions by failing to remove from its register of members in respect of the Queensland branch the name and postal address of ceasing members within 28 days after they ceased to be a member, and
- section 172 of the RO Act on 13,950 occasions by failing to remove from its register of members in respect of the Queensland branch the name and postal address of members who had not paid dues for more than 24 months within 12 months of the end of the 24 month period.
All in all, the statement of claim includes 27,140 occasions between 2009 and 2017 where contraventions of the Act have been identified.
Has the commission attempted to rectify this situation outside of court. What happened?
This matter has been the subject of extensive correspondence and consultations with the AWU since 2016 (see AR2016/161)and an investigation conducted under section 331 of RO Act (see earlier statement). It was as a result of the ROC’s investigation in mid-2021 that the extent of more than 27,000 contraventions have come to light. Given the systemic and serious nature of the contraventions, it is in the public interest that these contraventions are dealt with by the Federal Court of Australia.
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. This proceeding excludes further consideration of matters relating to the Victorian Branch but covers the conduct of each of the AWU’s other Branches and the National Office.
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.
On 17 February 2021 the ROC commenced an investigation under section 331 of the RO Act related to the National Office and each of its branches (excluding its Victorian Branch), which investigation was concluded on 29 August 2022: see related statement.