Disqualification from holding office

Section 215 of the Fair Work (Registered Organisations) Act 2009 (the RO Act) provides that a person who has been convicted of a prescribed offence is prohibited from:

• standing for election
• being elected to office
• being appointed to an office in an organisation
• continuing to hold office.

Section 212 of the RO Act includes a list of the prescribed offences that will disqualify people from holding office. Prescribed offences are not just limited to offences committed in connection with holding an office.

Prescribed offences include:

• an offence involving fraud or dishonesty, for which a person could be punished on conviction by imprisonment for 3 months or more. As long as the offence may result in a term of imprisonment of 3 months or more, it does not matter if a person receives a lesser sentence. The offence can be under a law of the Commonwealth, a state or territory, or another country.
• offences relating to elections (section 185, section 191, section 193(2), section 194, section 195 and section 199)
• offences in relation to an amalgamation process (section 51, section 72 and section 105)
• hindering or obstructing the General Manager of the Fair Work Commission (the General Manager) (section 202(5))
• recklessly or intentionally failing to act in good faith in the best interests of the organisation (section 290A(1))
• using their position with the intention of gaining an advantage, or being reckless as to whether using their position will gain an advantage (section 290A(2))
• obtaining and using information dishonestly with the intention of gaining an advantage or being reckless as to whether they will gain an advantage (section 290A(3))
• offences in relation to the formation, registration or management of an association or organisation (but only for indictable offences)
• taking or threatening a reprisal because of a protected disclosure (section 337BE)
• any other offence under a law of the Commonwealth, a state or territory, or another country, where the person was sentenced to a term of imprisonment (that they are serving, have served or had suspended) involving:
  • the intentional use of violence towards another person
  • intentionally causing death or injury to another person or
  • intentional damage or destruction of property.

The exclusion period is 5 years unless the Federal Court reduces the period (on application). The exclusion period begins on the latest of the following days:

• the day on which the person was convicted of the prescribed offence
• if the person serves a term of imprisonment for the offence – the day on which the person is released from prison
• if the person was sentenced to a term of imprisonment for the offence but the sentence was suspended, and the person is not imprisoned for the offence during the suspension period – the day immediately after the end of the suspension period.

An office holder or candidate who would otherwise be disqualified can apply to the Federal Court for leave to hold office. The Federal Court may:

• grant the person leave to hold office in an organisation
• reduce the period of disqualification from holding office
• refuse the person leave to hold office.

If a disqualified person nominates for office in a registered organisation election, the General Manager may apply to the Federal Court for a declaration that a person is not eligible to be a candidate for election or be elected to office. An organisation or a member of that organisation may also apply to the Federal Court for a declaration.

If a person who currently holds office is convicted of a prescribed offence, they will cease to hold the office 28 days after the conviction, unless they apply for and are granted an exemption by the Federal Court.