Registers of members must be kept and properly maintained

General Manager of the Fair Work Commission v Australian Workers’ Union [2023] FCA 1642

A registered organisation did not have systems and processes in place to ensure that each branch kept its part of the register of members consistently and accurately.

The organisation failed to keep a copy of its register of members for the required period of seven years. 

The organisation also failed to accurately record the name and postal address of members on its register and failed to remove members from the register who had not paid dues or had resigned within the required time.

The organisation also lodged operating reports that failed to report accurate membership numbers.

The Australian Workers’ Union (AWU) failed to keep accurate records of its members between 2009 and 2017 and admitted that it had collectively committed 27,140 contraventions of sections 172, 230, 231 and 254 of the Fair Work (Registered Organisations) Act 2009 (RO Act).  

The Federal Court accepted that the AWU had failed:

• on 9 occasions to keep a copy of its register of members as it stood on 31 December for the required period of seven years and
• on 5 occasions to accurately report the number of its members in annual operating reports lodged by the National Office
• on at least 13,950 occasions to remove members that it was required to remove from its register of members
• on at least 6,814 occasions to record the name and postal address of members
• on at least 6,362 occasions to remove resigned members from its register of members.

The parties provided a joint submission to the Court which acknowledged the seriousness of the contraventions and acknowledged at [70] that, in particular:

[T]he contraventions of s 231(1) had serious consequences. In particular, it is not now possible to identify all the members of the AWU during the relevant period, the AWU cannot fully remedy any errors and the Regulator cannot fully examine the AWU's compliance with the FWRO Act during the relevant period in respect of those portions of its register that it was unable to produce. 

The Court considered that the AWU had acknowledged the seriousness of the contraventions and had taken significant steps to remedy its non-compliance with reporting obligations since 2017. It had established new systems, procedures and practices regarding the management of its membership data and reporting duties, including a process of external audit.

The Court accepted a joint submission on penalty in ordering that the AWU pay a penalty of $290,000 in respect of the contraventions.

Significant penalties can be ordered against organisations who, through poor systems and disorganisation, fall into non-compliance even when the Court accepts that there was no deliberate intention to contravene the RO Act. 

Keeping the register of members is an important record and the Court considered this case as an opportunity to deter future non-compliance by all organisations. 

Organisations must keep the register of members:

• as it stood on 31 December each year for at least seven years
• consistently and appropriately across branches
• in a way that is actively maintained to ensure that members’ details are correct and that members who resign or are unfinancial are removed within the required time periods.

Where the register of members is maintained at the branch level, the National Office has an obligation to ensure that there are appropriate systems in place and that branches are properly maintaining the register of members.

Organisations who find that they have contravened reporting and record keeping obligations are well advised to work cooperatively with the regulator and take positive steps to remediate past non-compliance and to put in place systems and processes to ensure good governance.

When considering the penalty, Justice Goodman noted at [36] – [38] that:

… deterrence being the pre-dominant, if not sole, purpose of such penalties… the declarations [sought] record the Court’s disapproval of the contravening conduct and assist in deterring other organisations from contravening the Act.

The Court ordered that the AWU pay a civil penalty of $290,000.

The AWU published an agreed media release on the AWU’s website and Facebook page as part of the penalty agreed with the General Manager. A copy of the agreed media release was published on the Fair Work Commission’s website on 21 December 2023 which is available here: Joint Media Statement.

NSD 992 of 2022