11 October 2019
The Federal Court has today issued a decision in the matter of the Australian Workers’ Union v Registered Organisations Commissioner.
In October 2017, the Registered Organisations Commission (ROC) commenced an investigation into processes the Australian Workers’ Union (AWU) and various of its former officers took to authorise a range of donations. The investigation included an examination of potential contraventions of s. 285, s. 286 and s. 287 of the Fair Work (Registered Organisations) Act 2009 (the RO Act). The AWU commenced litigation to quash the decision by the ROC to commence the investigation, which was the subject of a contested trial in February and March 2019.
In his decision, [at para 392] Bromberg J rejected five of the AWU’s seven grounds of review while upholding one ground in part and adjourning another ground for further submissions. The Court found, among other things, that there was no jurisdictional error arising from the investigation of conduct occurring before 1 May 2017 and that the AWU had failed to demonstrate its allegations that the investigation had been commenced for any improper or political purpose.
The Court considered the reasonable grounds relied upon by the ROC to commence the investigation were restricted only to contravention of the AWU’s rules and because more than four years had passed since the relevant conduct, s. 320 of RO Act operated to deem any act done in contravention of the rules to be compliant. On that basis, the Court found the decision to conduct an investigation was affected by jurisdictional error and invalid.
The matter has been listed for further hearing on a date to be fixed for further submissions. Because the matter remains before the Court, the ROC will not be making any further comment at this time.
Section 285 of the RO Act sets out expectations for officers of registered organisations to discharge his or her duties with the degree of care or diligence a reasonable person would exercise in that position.
Section 286 of the RO Act requires that an officer of an organisation or branch must exercise his or her powers and discharge his or her duties in good faith in what he or she believes to be the best interests of an organisation and for a proper purpose.
Section 287 of the RO Act requires that an officer or employee of an organisation or branch must not improperly use his or her position to gain an advantage for himself or someone else or cause detriment to the organisation or another person.
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