Registered Organisations Commissioner v Transport Workers’ Union of Australia  FCA 32 (at first instance); Transport Workers’ Union of Australia v Registered Organisations Commission  FCAFC 203 (on appeal).
What were the issues?
Two branches of a registered organisation failed to keep accurate records of their members, as required under the Fair Work (Registered Organisations) Act 2009 (RO Act). One of the branches also failed to remove non-financial members from its register within the required time.
The NSW Branch of the Transport Workers’ Union (TWU) admitted it failed to keep a register of members as it stood at 31 December 2009, 31 December 2010, 31 December 2011 and 31 December 2012. The TWU also admitted its West Australian Branch failed to do so as at 31 December 2013.
The NSW Branch also failed to remove 20,949 non-financial members from its register of members within three years after those members became non-financial. The branch said it kept non-financial members on its register for up to 12 years because of a practice designed to encourage or facilitate them to become members again.
What can organisations learn from this?
Organisations must keep, for seven years, their register of their members as it stood at 31 December each year.
Organisations must remove from the register of members all non-financial members within three years of the member becoming non-financial.
Organisations must understand their legal obligations under the RO Act and take compliance with them seriously.
What did the judge say?
The trial judge (Perram J) emphasised the importance of record keeping and compliance with the RO Act and stated (at paragraph 79):
Record keeping under this legislation is a significant matter and it needs to be understood by organisations that this is a serious piece of legislation and the apparently mundane obligations it imposes are to be obeyed.
The Full Court on appeal (Allsop CJ, Collier and Rangiah JJ) also pointed to the importance of accurate record keeping in finding that ‘there certainly existed the potential for members and other persons to be misled as to the number of members the TWUA had during the relevant periods’ (at ).
What was the outcome and the penalty?
The trial judge found that the failure by the TWU to remove non-financial members contravened section 172 of the RO Act and its failure to keep registers of its members contravened section 231 of the RO Act. His Honour emphasised the requirement for penalties to act as a deterrent and imposed a total penalty of $271,362.36.
On appeal by the TWU (about the amount of the penalty only), the Full Court reduced the penalty to $163,000.
The Full Court accepted arguments made by the TWU about procedural fairness, but it imposed a penalty that was more than the maximum amount the parties had argued for due to ‘the seriousness and duration of the contraventions’ (at paragraph 140).