One of the functions of the Australian Electoral Commission (AEC) is to conduct elections for office for industrial organisations registered under the Fair Work (Registered Organisations) Act 2009. Under this legislation, all elections for office in registered organisations must be conducted by the AEC, unless an exemption from this requirement has been granted by the Fair Work Commission.
Legislative provisions permitting registered organisations to have their elections conducted by the Commonwealth were first introduced in 1949. The purpose of the legislation was to minimise the incidence of irregularities occurring in connection with the conduct of these elections.
Most industrial organisations have diverse structures that require elections at national, divisional, branch and/or section levels.
Elections are conducted in accordance with the requirements of the Fair Work (Registered Organisations) Act 2009 (the Act) and the Fair Work (Registered Organisations) Regulations 2009 (the Regulations).
At least two months before nominations are due to open, the organisation (or branch, in the case of branch elections) must lodge with the Fair Work Commission prescribed information relating to the election, as required by section 189(1) of the Act and regulation 138 of the Regulations. Late lodgement or lodgement of incomplete information may delay the conduct of the election.
If the Fair Work Commission is satisfied that an election is required to be held under the rules of the organisation (or branch) he/she arranges for the election to be conducted by the AEC. A member of AEC staff is then appointed as returning officer and he/she contacts the organisation to make preliminary election arrangements.
Each registered organisation has a set of rules that have been certified by the Fair Work Commission. Subject to certain provisions of the Act, each election is conducted in accordance with the rules of the organisation. Prospective candidates should acquaint themselves with the requirements of their organisation's election rules. Most organisations have specific rules covering:
In the conduct of each election the returning officer has the power under section 193(1) of the Act to take such action and give such directions as he/she considers necessary to ensure that no irregularities occur, or to remedy any procedural defects which appear to exist in the rules. For example, it may be necessary to depart from the election dates specified in an organisation's rules.
The returning officer calls for nominations by placing advertisements in daily newspapers and/or the organisation's journal or by sending notices to each member. The method of calling for nominations is generally provided for in the organisation's rules. Included in the advertisement are the offices for which nominations are being called, instructions for the lodgement of nominations and the election dates.
Candidates should ensure that they are qualified to be nominated. The rules of most organisations require candidates to be financial members of the organisation or branch. In some cases the rules specify other qualifications such as length of membership, continuity of financial membership or membership of a particular committee, occupational group, district or sub-branch.
Candidates should also check whether their organisation's rules require them to be nominated by another member or members, and if so, how many nominators are required and what qualifications apply to nominators.
Nominators are usually required by the rules to be financial members, and may be required to hold other qualifications relating to such matters as length of membership, or membership of a particular committee, occupational group, district or sub-branch.
Candidates must also ensure that they comply with the returning officer's instructions for the lodgement of nominations. The onus is on candidates to ensure that nominations reach the returning officer by the closing time for nominations.
The returning officer acknowledges receipt of all nominations and after the close of nominations checks them for compliance with the rules of the organisation.
Where a nomination does not comply with the requirements of the rules, the returning officer advises the candidate concerned in writing of the particulars of the defect. Depending on the nature of the defect, the candidate may be asked to take remedial action or provide further particulars of his/her qualifications for office. The candidate must reply within a prescribed time (usually 7 days). Where a candidate fails to remedy a defective nomination within the prescribed time the nomination is rejected.
If only sufficient valid nominations are received to fill advertised vacancies in all offices listed for election, nominees are declared elected immediately. Where some, but not all positions are uncontested, declarations may be made in respect of the uncontested positions if the rules of the organisation do not preclude the returning officer from doing so.
The rules of the organisation usually specify whether candidates' names on the ballot paper are to be listed in alphabetical order or in an order determined by lot by the returning officer. The returning officer lists the names on the ballot paper in accordance with such rules. If the order is determined by lot, scrutineers may be present at the draw.
The returning officer then prepares the ballot paper, taking into account any special directions which might need to be included about marking ballot papers, informal votes, or completion of declaration envelopes.
The rules of some organisations permit candidates to prepare statements in support of their candidacy for distribution by the returning officer with ballot material. Statements must be lodged within the time prescribed by the organisation's rules and must comply with the rules in relation to format, content and size. The returning officer is required to examine candidates' statements to ensure that they comply with the rules of the organisation, and candidates will be requested to amend any statements which do not do so.
The organisation is required to provide the returning officer with a certified list of names and addresses of members eligible to vote. The returning officer advises the organisation of the requirements for provision of this information. The roll of voters must be provided by the date specified by the returning officer as any delay could result in postponement of the ballot.
Any member may inspect the roll of voters at the returning officer's office. The roll may be supplied electronically. Members wishing to inspect or obtain a copy of the roll of voters should contact the returning officer.
As the majority of elections are conducted by post, members who have recently changed their name and/or address should advise the organisation immediately to enable their records to be updated. Failure to maintain current address information may result in eligible voters not receiving ballot material.
All elections are conducted by secret ballot and in almost all cases ballots are conducted by post. In postal ballots the returning officer posts ballot material to members at the address shown in the organisation's records and provides voters with a declaration envelope and a prepaid envelope for the return of their completed ballot papers. The voter is required to place their completed ballot paper in the declaration envelope and sign the declaration on the back of the envelope otherwise their vote will not be counted.
Generally a period of 2 – 3 weeks is allowed for the return of ballot papers, but particular circumstances may require a shorter or longer ballot period. In some instances rules of organisations may provide for attendance ballots to be conducted at workplaces or at meetings of members. Arrangements for such ballots are made by the returning officer in consultation with the organisation concerned.
The rules of an organisation may provide for compulsory voting, but in most cases voting is not compulsory. On average around 30 percent of eligible members vote in non-compulsory ballots.
Enquiries about the non-receipt of ballot material should be directed to the returning officer. Applications may be made by eligible members who have not received ballot material issued to them or have lost or spoilt their ballot material. Such applications must:
The scrutiny of ballot papers commences as soon as practicable after the close of the ballot. The returning officer conducts the scrutiny at his/her office, taking into account the rules of the organisation concerning:
The time taken to complete the scrutiny varies according to the number of ballot papers returned, the number of candidates for each position and the type of voting system used.
In national ballots, votes are usually counted in each capital city in which a branch of the relevant organisation is located.
Re-counts normally occur only when the result of an election is very close. A returning officer may re-count some or all ballot papers at the request of a candidate or on his or her own decision.
Candidates may appoint scrutineers to represent their interests by observing election procedures including:
Scrutineers must be appointed in writing. A candidate in a ballot cannot be a scrutineer. The rules of some organisations require scrutineers to be financial members. The onus is on the candidate to ensure that his/her proposed scrutineer is eligible to be appointed and to notify the returning officer in writing of the name and address of the person appointed.
Candidates can appoint relieving scrutineers and candidates in national ballots can appoint a scrutineer for each location in which votes are counted.
Scrutineers should contact the returning officer to obtain information about the dates, times and locations at which particular election stages are to take place.
At the scrutiny a scrutineer may bring to the returning officer's attention any matters concerning:
A scrutineer must not:
The AEC is not responsible for any expenses incurred by scrutineers.
At the completion of the scrutiny, the returning officer declares the results in writing and issues copies of the results to the Secretary of the organisation concerned and the candidates.
All ballot material is kept for one year after the completion of the election.
After the completion of an election, the AEC provides a written report on the conduct of the election to the Fair Work Commission and the organisation or branch for whom the election was conducted.
The AEC must provide the post-election report within 30 days after the closing day of the election; and publish a notice on its website advising that a copy of the post-election report can be obtained from the AEC on the request of a member who was eligible to vote in the election.
The AEC must also supply a copy of the post-election report to the member as soon as practicable, but no later than 7 days after receiving a request.
Under section 200 of the Act, the Electoral Commissioner, a member of an organisation or person who has been a member within the preceding 12 months may apply to the Federal Court for an inquiry into alleged irregularities in relation to an election.
Any application made under section 200 must be made not later than 3 months after the day the result of the election has been declared (regulation 143).
Where the Court finds that an irregularity has occurred and that as a consequence the result of the election may have been affected, it may declare the election or any step in the election void and order that a new election be conducted by the AEC, or that particular steps in the election be taken, or taken again.
It is an offence to: