Many questions have been asked at the information sessions and workshops about specific circumstances, particularly in relation to corrupting benefits and disclosure obligations for bargaining representatives. The ROC cannot provide legal advice about how the law applies to individual specific circumstances, however our tools and resources on a range of topics might assist organisations and their branches to identify issues they need to think about.
How can people find out about new releases of documents, templates and information by the ROC?
All subscribers to the ROC website are notified about significant website updates, including the release of new documents and information, by emailed notices. If you would like to be kept informed, please subscribe here.
Do organisations include elections in their 2019 Annual Return that commenced in 2018 but extend into 2019?
Organisations are required to keep a record for each election that must be held during each year commencing 1 January for any offices in the organisation and branches of the organisation (refer to s 230(1)(d) and reg 147). A copy of this record forms part of the Annual return which is lodged with the ROC every year by 31 March (refer s 233(1)(b)).
An election that is scheduled to commence in a calendar year which is not declared until the following calendar year should be listed in the Annual Return of the year in which the election was scheduled to commence. Therefore a scheduled election which commenced in 2018 which was declared on a day in 2019 should be listed in the organisation’s 2018 Annual Return.
Officer and related party statements
Can the Officer and Related Party Disclosure Statement (ORP statement) be included with the General Purpose Financial Report (GPFR)?
The ORP statement can be with the GPFR but it must be a separate statement. NOTE: it cannot be a note or included in another statement. A template statement is available on the ROC’s website.
The time frames for providing the ORP statement to members and lodging it with the ROC are different to the time frames for the GPFR, so they may need to be lodged separately. More detail on the timeframes regarding financial reporting is on our financial reporting page, as are details about timeframes for ORP statements. You should also check your rulebook. Your rulebook might provide additional obligations.
Remember that a branch that is not required to prepare a financial report is still required to provide and lodge an ORP statement.
My branch doesn’t have to prepare a financial report. Do I still have to prepare and provide an Officer and Related Party Disclosure Statement?
How should the ORP statement be completed if there are no disclosures to be made, or there are fewer than five officers with relevant remuneration and non-cash benefits to disclose?
Where there are no disclosures to be made, organisations and branches should complete an ORP statement and make it clear in that statement that there are no disclosures. The organisation or branch can provide a statement that there are ‘nil’ disclosures to be made. Where there are some disclosures, but fewer than the legislative disclosure requirements (for example, where only 3 officers received relevant remuneration or non-cash benefits), the word ‘nil’ can be used in the applicable fields to indicate that there are no further disclosures to be made.
Ultimately it should be clear on the face of the statement that the organisation or branch have considered their full disclosure requirements and completed the ORP statement accordingly.
How can we identify who in our organisation is an officer?
Refer to the meaning of office in s 9 of the RO Act. You should also examine the organisation’s rules to determine whether the functions of the position meet the statutory definition of an officer.
What is ‘relevant remuneration’?
Remuneration is defined in s 6 of the RO Act to include pay, wages salary, fees, allowances, leave, benefits or other entitlements (but it does not include a non-cash benefit).
‘Relevant remuneration’ also includes remuneration from Board positions or related parties disclosed by an officer (refer to s 293B(1), (2) and 293BC(4)).
Does remuneration need to be disclosed in circumstances where the officer receives a sum of money because of their position on a board, but they do not get to keep it?
Relevant remuneration received by an officer from a board position ought to be disclosed in the ORP statement even where it is passed on to or ultimately received, in part or in full, by the organisation or branch.
How do we disclose the top five officers by relevant remuneration where there are two or more highly ranked officers who have received the same amount of relevant remuneration?
In circumstances where there are two or more officers who have received an equivalent amount of relevant remuneration, the officers will be given the same rank within the top five ranking of officers by relevant remuneration. Therefore you may need to disclose the identity, relevant remuneration and non-cash benefits of more than give officers in the ORP statement.
Should the top five officers be ranked by the value of relevant remuneration or non-cash benefits?
Section 293BC requires the disclosure of the top five ranked officers by relevant remuneration.
Do honorariums need to be disclosed if they are paid to officers to cover costs to attend meetings e.g. travel costs?
Yes, if the officer is ranked in the top five of officers by relevant remuneration. An honorarium payment is captured by the definition of remuneration (refer to s 6 of the RO Act).
How should a payment made to a person after they cease to be an officer be disclosed in the ORP statement?
For a payment to be considered relevant remuneration it must be made to an officer of an organisation or branch.
If a payment is made after a person ceases to hold office, then the payment is not relevant remuneration. However, if the payment was made by the organisation or branch within six months of the person holding office it would likely be considered a payment to a related party. In this case it would need to be disclosed as a related party payment in the organisation's or branch's ORP statement.
Is there a minimum financial threshold that must be reached before the amount is required to be disclosed in the ORP statement?
For the disclosure of relevant remuneration of the top five ranked officers there is no minimum threshold. However, in relation to the disclosure of related party payments, if less than the prescribed amount (currently $5000) has been paid to a related party during the financial year, it is exempt from disclosure under s 293G(5B).
How are non-cash benefits calculated?
The RO Act does not prescribe how non-cash benefits should be valued.
In some cases, the value of the non-cash benefit may be simple to calculate based on the actual cost to the registered organisation of the non-cash benefit. In other circumstances, a market value estimate may be appropriate. The value of non-cash benefits should include the GST component, and any other fee or charges that are generally associated with the use and access of the benefit.
Organisations and branches should disclose the value of non-cash benefits as the grossed-up value and not the taxable value (as per the fringe benefit tax rules). Organisations and branches may disclose additional notes to explain their method of calculating the non-cash benefit.
What is a 'related party' for the purpose of the ORP statement?
The meaning of 'related party' can be found in s 9B of the RO Act.
A related party to an organisation includes:
Care should be taken to ensure that the organisation discloses related party payments in accordance with the RO Act. Note that this definition is not the same as the definition of a related party under the Australian Accounting Standards which applies to an organisation or branch's financial reports.
Does a Christmas lunch paid by the organisation and attended by officers in a voluntary position need to be disclosed?
The remuneration and non-cash benefits paid to the top five ranked officers need to be disclosed in the ORP statement. As it is unlikely that a Christmas lunch provided to all officers would meet the definition of 'remuneration' or 'non-cash benefit', the provision of a Christmas lunch is not required to be disclosed in the ORP statement.
Is the exemption of disclosure relating to amounts of less than the prescribed amount (currently $5000) paid to related parties under s 293G(5B) concerned with a cumulative amount?
Yes. For the payments to be exempt from disclosure under s 293G(5B), the total amount of the payments made to the related party in the financial year must be no more than $5000.
Does the ROC publish ORP statements on its website?
Yes. The ROC publishes ORP statements online. ORP statements are a legislative requirement and the RO Act authorises its use and disclosure, including publication online.
Where there is information disclosed in the ORP statement that is not mandated by the RO Act, some information may be redacted prior to publication to protect the privacy of individuals.
What steps can an organisation take if mandatory disclosures are not made by their officers?
Organisations are encouraged to establish governance structures and foster a culture of transparency and voluntary compliance. The ROC may be able to provide additional support and assistance to organisations where requested.
The rules of organisations may provide mechanisms for disciplinary action or the removal of officers from office if they have been found guilty under the rules of a substantial breach of the rules or of gross misbehaviour or gross neglect of duty. It is recommended that organisations refer to their rules in such circumstances.
If another partner of the auditor’s firm conducts the audit in the following year, would this satisfy the rotation provisions under the RO Act?
Yes, but the individual auditor should be registered under the RO Act.
Do the documents in the full financial report need to be signed at both the first and second meetings?
No, and they should not be. Documents that can be signed prior to the first meeting are the Operating Report, the section 255(2A) report and the Officer’s Declaration Statement (if used). They could also be signed at the first meeting, but they must be signed before the audit.
The first meeting passes the resolution in the Committee of Management Statement. The Committee of Management Statement cannot be signed until after the resolution has been passed, but it must be signed before the audit. Then, between the first and second meetings, the auditor finalises the entire financial return and signs the Auditor’s Report.
At the second meeting the Committee of Management Statement, the Auditor’s Report (which includes the audit of the signed Committee of Management Statement), the Operating Report, the Officer’s Declaration Statement (if used) and the section 255(2A) report have all already been signed. The only document that is signed after the second meeting is the Designated Officer’s Certificate.
If an organisation makes a loan to another branch or division in the same registered organisation, does that loan have to be disclosed in the loans, grants and donations statement (LGD statement)?
Yes – all loans which exceed $1000 must be disclosed.
If an organisation makes a loan to a State registered entity, does that loan need to be disclosed in the loans, grants and donations statement (LGD statement)?
Yes - all loans which exceed $1000 must be disclosed.
Does the full financial report have to be provided to financial and unfinancial members?
Yes. If the RO Act refers to the word ‘members’ without qualification, the ROC takes the view that this includes all members of the organisation, whether financial or unfinancial.
How should the financial report be provided to members? Is internet publication, or surface mail, or an email with a link sufficient?
These methods are all sufficient, as long as all members can access it (for example, it should not be password protected unless all members are provided with the password) and it is free of charge.
If it is provided on a website, we recommend that you send an email or other notification (in a newsletter for instance) letting members know that the report is available and where.
Publication of the full report in a reporting unit’s journal (that is free of charge to all members) is another option.
If a reporting unit has both a State registered entity and Federal entity (for instance a NSW branch and a NSW registered entity) there can be issues with moving/identifying assets between them and consequent financial reporting. What does the ROC recommend?
The issue of State and Federal entities can be complex for organisations. The two entities are legally and financially separate (even if in practice they might be very similar with the same members, the same people holding office, and money commonly transferred between them).
It is the ROC’s strong recommendation that reporting units clearly distinguish which entity is the owner of what assets and debts and which should report them. If ownership is not identified then a reporting unit cannot keep proper financial records or produce an accurate financial report. The reporting unit cannot lodge the same financial report with the ROC and the relevant State regulator. Officers must be clear, when acting in relation to the finances of the reporting unit and conducting meetings, which entity they are currently representing.
If all of the assets and liabilities are in the State entity (and in the State system), the reporting unit may be able to apply for a section 269 or section 271 exemption from reporting with the ROC.
Can the Designated Officer’s Certificate be signed on the day of the second meeting (General Meeting of Members or second Committee of Management Meeting) or does it need to be signed after the first meeting (but before lodgement with the ROC)?
Yes, the Designated Officer’s Certificate can be signed on the same day as the second meeting but it must be after the meeting. The Designated Officer’s Certificate cannot be signed before the second meeting.
How should the sub-section 255(2A) report be presented?
The format is not prescribed. Options could include presenting the information in diagrammatic form such as a pie-chart, for example, or in descriptive form such as in a table. The information only needs to be provided in one format of your choosing. The reporting unit and auditor should consider what information and format would be most useful for the members.
Should the sub-section 255(2A) report be provided twice? It was previously recommended that it should not be included in the financial report notes.
The sub-section 255(2A) report only needs to be included once – it forms part of the general purpose financial report and because of this must be audited and must be included in the auditor’s scope. The sub-section 255(2A) report is a separate statement and should not be included in the Notes to the financial report.
Is there a requirement to tell the ROC about the changes to rules that impact on elections? Is there a requirement for the Fair Work Commission (FWC) to tell the ROC about rule alterations or for the ROC to tell the FWC about elections?
The RO Act requires the Australian Electoral Commission (AEC) to use the rules of the organisation as in force on the day the nominations in the election opened, even if the rules have since changed.
There is no requirement for organisations to tell the ROC about rule alterations that will impact elections. However, if an organisation is trying to have rules certified that will change the election process, including this with the prescribed information will help the ROC work with the FWC and the organisation to achieve the best possible outcome for the organisation. The ROC has therefore put this on the template for prescribed information for an election because it might prevent expensive remedial actions that could arise if the rules are certified after the election has been arranged. If the information has not been provided in the prescribed information, the ROC will contact the organisation to ask whether rule alterations are pending.
There is no requirement for the ROC to inform the FWC about elections. The FWC informs the ROC about rule alterations after they have been certified. The organisation should also inform the AEC.
What can the ROC do if it knows that rules are being examined by the Fair Work Commission (FWC) that will impact on the election?
The ROC can liaise with the FWC to try to ensure that the rules are certified prior to issuing the decision for the election (and therefore prior to nominations opening). However, if the current rules contain a date on which nominations must open, the ROC will issue a decision before that date.
Also if the rules are unlikely to be certified by the FWC during a reasonable period of time, the ROC will issue a decision. The ROC must comply with the RO Act and the rules as they stand.
Who is responsible for altering the rules of organisations now?
The Fair Work Commission (FWC) remains responsible for certifying alterations to the rules of organisations. If you have questions about the process the FWC has a Registered Organisations team which can assist.
Should the national office lodge the prescribed information on behalf of branches or is it a requirement for branches to lodge prescribed information for their branch elections?
Section 189 of the RO Act prescribes that an organisation or branch of an organisation must lodge prescribed information in relation to an election with the Commissioner. However, organisations and branches should also refer to their rules to determine whether there is an established procedure in place. If the national office lodges prescribed information on behalf of a branch, we recommend that this is clearly communicated to the branch.
How soon is a registered organisation required to fill a casual vacancy via an election?
If a vacancy has occurred (casual vacancy), registered organisations should check their rulebook to find out if that office must be filled or if it can remain vacant. If the rules are silent, it is the view of the ROC that the office must be filled as soon as practicable if it is vital to the functioning of the branch or organisation (for example, the National Secretary).
Disclosure obligations for bargaining representatives
My organisation’s bargaining representatives made a disclosure to employees and it caused a no vote – employees who would otherwise have voted yes perceived the agreement as being dubious because of the disclosure. Can you suggest any ways to avoid this happening?
We recommend providing the disclosure to employees as early as possible, to ensure employees have sufficient time to absorb the information and ask questions. In addition, employees should be kept informed of the progress of bargaining and terms of the agreement – this should avoid surprises prior to the vote. Another alternative where possible might be to remove the relevant term from the agreement so that there is no need to make the disclosure.
In practical terms, who is included by the term 'bargaining representative'?
A bargaining representative includes employer bargaining representatives and employee bargaining representatives. In practical terms this will commonly be the employer (or employers) who will be covered by the proposed enterprise agreement, and the union (or unions) which represents the interests of the employees.
Officer financial training
Do organisations and branches have to participate in the 2019 Financial Training Audit? How will the ROC communicate with organisations during the audit?
The ROC encourages all organisations to participate in the financial training audit. The purpose of the audit is to increase compliance and educate organisations and officers about the obligation to complete financial training. Participation in the audit is voluntary.
The ROC will consult with the national office of registered organisations to determine the most appropriate method of communication for the organisation.
In circumstances where an officer is a volunteer, and that volunteer refuses to take the officer financial training, should the organisation exclude the officer from decision making or dismiss them from their position?
All officers who hold financial duties relating to the financial management of the organisation or branch are required to complete approved financial training under section 293K of the Fair Work (Registered Organisations) Act 2009 (RO Act), whether they are a volunteer or not and assuming an exemption does not apply.
It is the responsibility of the organisation or branch to ensure that the officer completes the training. The organisation/branch is liable for civil penalties of up to $105 000 (2018/2019) for breaching its obligation to ensure that the training has been done.
Where an officer refuses to undertake the training, the organisation or branch might wish to look at its rules to see what actions, if any, could be taken. For example, some organisations’ rules permit the removal of a person from office for gross misbehaviour or gross neglect of duty (following due process). The organisation might also wish to consider whether it has the power to prevent the officer from exercising duties that relate to the financial management of the organisation or branch (for example, participating in financial decisions made by the Committee of Management) until the officer completes the training.
In addition, it is possible that an officer who refuses to undertake required training has not exercised their powers, or discharged their duties, in good faith for the best interests of the organisation, and thus exposes themselves to penalties (section 286 RO Act).
When are organisations required to ensure that officers undertake the officer financial training? For example, is it necessary to re-train officers who are reappointed to the same role?
It is the ROC's view that if an officer is re-elected to the same office they are currently holding and they have already undertaken approved financial training, then the officer does not need to undertake financial training again. However, ROC’s recommended best practice is that an officer who has been re-elected to the same office should undertake training again where the previous training was completed prior to May 2017 (given the legislative amendments that came into force at that time).
Where an officer is elected to a different office after undertaking approved financial training, the Fair Work (Registered Organisations) Act 2009 requires the officer to undertake the training again, or seek an exemption.
Does an officer need to re-complete financial training if they leave their office and subsequently return to the same office at a later time?
Yes. Section 293K requires the officer to re-complete approved financial training unless an exemption is granted.
Do officers who are appointed need to complete approved financial training?
Yes. Section 293K requires all officers who exercise financial duties to complete approved training within six months after they begin to hold office, unless an exemption is granted.
Are all members of the committee of management required to undertake financial training if they are collectively responsible for approving a budget?
Yes, the responsibility to approve a budget is a financial duty. All officers who undertake financial duties that relate to the financial management of the organisation or branch must undertake approved financial training within 6 months after commencing their office, unless they are granted an exemption. Financial training protects the organisation, branch and officers; empowering them to better understand the details of the budget and make an informed decision on financial matters.
Are decisions or reasons for granting exemptions published on the ROC website?
In response to the request for additional guidance about how exemption applications are assessed, the ROC has published a number of exemption decisions online.
What are the consequences if training is not completed within the mandatory six month period?
Section 293K is a civil penalty provision. Organisations and branches expose themselves to a civil penalty if an officer does not comply with s 293K.
It should also be noted that rules of organisations may provide mechanisms for disciplinary action or the removal of officers from office if they have been found guilty under the rules of a substantial breach of the rules or of gross misbehaviour or gross neglect of duty.
Does the ROC need to investigate a disclosure even if the whistleblower does not wish to pursue the matter?
Each matter will be assessed on a case by case basis.
Regulation 176G(1)(c) of the RO Regulations provides that where the discloser has informed the investigator that they do not wish to pursue the matter, and the investigator is reasonably satisfied that there are no matters concerning the disclosure that warrants an investigation, they may exercise a discretion not to investigate the disclosure.
How are frivolous disclosures dealt with?
The ROC takes an evidence-based approach to investigating disclosures.
Where the investigator of the disclosure considers a disclosure to be frivolous or vexatious, the investigator has a discretion under Regulation 176G(1)(b) not to investigate.
What is the meaning of 'transaction' for the purpose of sections 337(1)(iv) and (v)?
The meaning of 'transaction' is not defined in the RO Act. It is the ROC's view that the transaction has to be more than a mere interaction. For example, if two parties (such as a union and a company) were signatories to an enterprise agreement and no payment or other exchange of value was involved, it is unlikely to be a transaction. However, if the two parties have a financial dealing such as a loan, donation or other payment, it is likely to satisfy 'transaction' under ss 337A(1)(iv) and (v). While the Courts are yet to deal with this particular section of the RO Act itself, transaction is a term used in several pieces of legislation, and the court's interpretation of 'transaction' in those matters may provide guidance. You should seek independent legal advice in relation to this issue. The ROC is unable to provide legal advice.
Can a registered organisation disallow a person from becoming or remaining a member of the organisation? For example where the person hasn't paid their membership fees, and has demonstrated prior poor behaviour within the organisation
A registered organisation generally cannot prevent somebody from joining the organisation if the person is eligible under the organisation's eligibility rules. However, s 166(1) places two conditions on becoming or remaining a member. Firstly, the ability to refuse if the person is of 'general bad character' and secondly, subject to the payment of membership dues.
'General bad character' and whether a person may be denied membership has been considered by the Courts, for example by the Federal Court in Owens v Australian Building Construction Employees and Builders Labourers Federation (1978) 46 FLR 16, in which the Court had to determine whether particular conduct amounted to general bad character.
Section 171A of the RO Act also provides that a person's membership of the registered organisation will cease if they are no longer an employee, unless they remain qualified in that occupation and are seeking relevant employment (s 166(3)).