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This is a Bill, not an Act. For current law, see the Acts databases.
2013-2014-2015
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Fair Work (Registered Organisations)
Amendment Bill 2014
No. , 2014
(Employment)
A Bill for an Act to amend the Fair Work
(Registered Organisations) Act 2009, and for related
purposes
No. , 2014
Fair Work (Registered Organisations) Amendment Bill 2014
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedule(s) ........................................................................................ 2
Schedule 1--The Registered Organisations Commissioner
3
Part 1--Amendments
3
Fair Work Act 2009
3
Fair Work (Registered Organisations) Act 2009
3
Part 2--Transitional provisions
26
Schedule 2--Increased disclosure requirements, investigation
powers and penalties
29
Part 1--Amendments
29
Fair Work (Registered Organisations) Act 2009
29
Part 2--Transitional provisions
89
No. , 2014
Fair Work (Registered Organisations) Amendment Bill 2014
1
A Bill for an Act to amend the Fair Work
1
(Registered Organisations) Act 2009, and for related
2
purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act may be cited as the Fair Work (Registered Organisations)
6
Amendment Act 2014.
7
2 Commencement
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
column 2 of the table. Any other statement in column 2 has effect
11
according to its terms.
12
13
2
Fair Work (Registered Organisations) Amendment Bill 2014
No. , 2014
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1
A single day to be fixed by Proclamation.
However, if the provision(s) do not
commence before Schedule 2 commences,
they commence immediately before that
Schedule commences.
3. Schedule 2
1 July 2014.
1 July 2014
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedule(s)
7
Each Act that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
The Registered Organisations Commissioner Schedule 1
Amendments Part 1
No. , 2014
Fair Work (Registered Organisations) Amendment Bill 2014
3
Schedule 1
--The Registered Organisations
1
Commissioner
2
Part 1
--Amendments
3
Fair Work Act 2009
4
1 Subsection 576(2) (note)
5
Omit "additional functions", substitute "an additional function".
6
2 Paragraph 604(1)(b)
7
Repeal the paragraph, substitute:
8
(b) made under the Registered Organisations Act by:
9
(i) the General Manager (including a delegate of the
10
General Manager); or
11
(ii) the Registered Organisations Commissioner (including
12
a delegate of the Commissioner);
13
3 Subsection 607(1)
14
Omit "or the General Manager", substitute ", the General Manager or
15
the Registered Organisations Commissioner".
16
4 Subparagraph 613(2)(a)(ii)
17
Omit "and", substitute "or".
18
5 At the end of paragraph 613(2)(a)
19
Add:
20
(iii) a decision of the Registered Organisations
21
Commissioner (including a delegate of the
22
Commissioner) under the Registered Organisations Act;
23
and
24
Fair Work (Registered Organisations) Act 2009
25
6 Section 6
26
Insert:
27
Schedule 1 The Registered Organisations Commissioner
Part 1 Amendments
4
Fair Work (Registered Organisations) Amendment Bill 2014
No. , 2014
Commission means the Registered Organisations Commission
1
established by section 329DA.
2
Commissioner means the Registered Organisations Commissioner
3
holding office under Part 3A of Chapter 11.
4
7 Section 6
5
Insert:
6
directions contravention means a contravention of one of the
7
following:
8
(a) subsection 297(2) or (3);
9
(b) subsection 298(2) or (3);
10
(c) subsection 299(2) or (3);
11
(d) subsection 300(2) or (3);
12
(e) subsection 301(2) or (3);
13
(f) subsection 302(2) or (3);
14
(g) subsection 303(2).
15
8 Section 6 (definition of FWA Member)
16
Repeal the definition.
17
9 Section 13 (heading)
18
Repeal the heading, substitute:
19
13 Additional function of the FWC
20
10 Subsection 13(1)
21
Omit all the words after "FWC", substitute "include keeping a register
22
of organisations".
23
11 Subsection 26(1)
24
Omit "paragraph 13(1)(a)", substitute "subsection 13(1)".
25
12 Subsection 28(1A)
26
Omit "General Manager", substitute "Commissioner".
27
13 Subsection 28(1A) (note)
28
Omit "General Manager", substitute "Commissioner".
29
The Registered Organisations Commissioner Schedule 1
Amendments Part 1
No. , 2014
Fair Work (Registered Organisations) Amendment Bill 2014
5
14 Section 31
1
Omit "paragraph 13(1)(a)", substitute "subsection 13(1)".
2
15 Subsection 38(4)
3
Omit "paragraph 13(1)(a)", substitute "subsection 13(1)".
4
16 Paragraph 73(3)(a)
5
Omit "paragraph 13(1)(a)", substitute "subsection 13(1)".
6
17 Subsection 77(2)
7
Omit "paragraph 13(1)(a)", substitute "subsection 13(1)".
8
18 Subsection 95(3A)
9
After "request the General Manager", insert "or the Commissioner".
10
19 Paragraph 95(3A)(a)
11
After "General Manager", insert "or the Commissioner, as the case
12
requires,".
13
20 Subsections 95(3B) and (3C)
14
After "General Manager", insert "or the Commissioner".
15
21 Paragraph 110(a)
16
Omit "paragraph 13(1)(a)", substitute "subsection 13(1)".
17
22 Subsection 114(2)
18
Omit "paragraph 13(1)(a)", substitute "subsection 13(1)".
19
23 Subsection 151(3)
20
Omit "paragraph 13(1)(a)", substitute "subsection 13(1)".
21
24 Paragraph 151(10)(b)
22
Omit "paragraph 13(1)(a)", substitute "subsection 13(1)".
23
25 Subsections 152(4) and 154(4)
24
Omit "paragraph 13(1)(a)", substitute "subsection 13(1)".
25
Schedule 1 The Registered Organisations Commissioner
Part 1 Amendments
6
Fair Work (Registered Organisations) Amendment Bill 2014
No. , 2014
26 Paragraph 160(a)
1
Omit "paragraph 13(1)(a)", substitute "subsection 13(1)".
2
27 Subsection 183(1)
3
Omit "FWC", substitute "Commissioner".
4
28 Subsection 183(4)
5
Omit "General Manager", substitute "Commissioner".
6
29 Subsection 184(2)
7
Omit "General Manager", substitute "Commissioner".
8
30 Section 186 (heading)
9
Repeal the heading, substitute:
10
186 Commissioner may permit organisation or branch to conduct its
11
elections for office
12
31 Section 186
13
Omit "General Manager" (wherever occurring), substitute
14
"Commissioner".
15
32 Subsection 187(3)
16
Omit "FWC", substitute "Commissioner".
17
33 Section 189 (heading)
18
Repeal the heading, substitute:
19
189 Commissioner to arrange for conduct of elections
20
34 Subsection 189(1)
21
Omit "FWC", substitute "Commissioner".
22
35 Subsection 189(2)
23
Omit "General Manager", substitute "Commissioner".
24
36 Paragraph 189(3)(a)
25
Omit "FWC", substitute "Commissioner".
26
The Registered Organisations Commissioner Schedule 1
Amendments Part 1
No. , 2014
Fair Work (Registered Organisations) Amendment Bill 2014
7
37 Paragraphs 189(3)(a) and (b)
1
Omit "General Manager", substitute "Commissioner".
2
38 Subsection 189(3)
3
Omit "General Manager must", substitute "Commissioner must".
4
39 Paragraph 192(2)(b)
5
Omit "FWC", substitute "Commissioner".
6
40 Paragraph 197(1)(a)
7
Omit "General Manager", substitute "Commissioner".
8
41 Subparagraph 198(6)(b)(i)
9
Omit "FWC", substitute "Commissioner".
10
42 Section 202 (heading)
11
Repeal the heading, substitute:
12
202 Federal Court may authorise Commissioner to take certain
13
action
14
43 Subsections 202(1) and (2)
15
Omit "General Manager", substitute "Commissioner".
16
44 Paragraph 202(5)(b)
17
Omit "General Manager", substitute "Commissioner".
18
45 Subsection 203(1)
19
Omit "General Manager" (wherever occurring), substitute
20
"Commissioner".
21
46 Subsection 203(1)
22
Omit "of the FWC", substitute "assisting the Commissioner".
23
47 Subsection 203(1)
24
Omit "343A", substitute "343B".
25
Schedule 1 The Registered Organisations Commissioner
Part 1 Amendments
8
Fair Work (Registered Organisations) Amendment Bill 2014
No. , 2014
48 Paragraph 203(6)(b)
1
Omit "of the FWC", substitute "assisting the Commissioner".
2
49 Paragraph 203(6)(b)
3
Omit "General Manager", substitute "Commissioner".
4
50 Paragraph 203(6)(b)
5
Omit "343A", substitute "343B".
6
51 Paragraph 203(6)(c)
7
Omit "General Manager", substitute "Commissioner".
8
52 Paragraph 206(4)(c)
9
Omit "General Manager", substitute "Commissioner".
10
53 Section 207 (heading)
11
Repeal the heading, substitute:
12
207 Commissioner to make arrangements for conduct of elections
13
etc.
14
54 Section 207
15
Omit "General Manager", substitute "Commissioner".
16
55 Subsection 215(5)
17
Omit "General Manager", substitute "Commissioner".
18
56 Section 229
19
Omit "General Manager" (wherever occurring), substitute
20
"Commissioner".
21
57 Section 233 (heading)
22
Repeal the heading, substitute:
23
233 Obligation to lodge information with the Commissioner
24
58 Subsections 233(1) and (2)
25
Omit "FWC", substitute "Commissioner".
26
The Registered Organisations Commissioner Schedule 1
Amendments Part 1
No. , 2014
Fair Work (Registered Organisations) Amendment Bill 2014
9
59 Subsections 234(3) and (4)
1
Omit "General Manager" (wherever occurring), substitute
2
"Commissioner".
3
60 Section 235 (heading)
4
Repeal the heading, substitute:
5
235 Commissioner may authorise access to certain records
6
61 Subsection 235(1)
7
Omit "General Manager" (wherever occurring), substitute
8
"Commissioner".
9
62 Section 236 (heading)
10
Repeal the heading, substitute:
11
236 Commissioner may direct organisation to deliver copy of
12
records
13
63 Section 236
14
Omit "General Manager" (wherever occurring), substitute
15
"Commissioner".
16
64 Subsection 237(1)
17
Omit "General Manager", substitute "Commissioner".
18
65 Subsections 237(1), (2) and (4)
19
Omit "FWC", substitute "Commissioner".
20
66 Subsections 241(1) and (2)
21
Omit "General Manager", substitute "Commissioner".
22
67 At the end of section 246
23
Add:
24
(3) In satisfying himself or herself as mentioned in paragraph (2)(a),
25
the General Manager must consult with the Commissioner.
26
Schedule 1 The Registered Organisations Commissioner
Part 1 Amendments
10
Fair Work (Registered Organisations) Amendment Bill 2014
No. , 2014
68 After subsection 247(1)
1
Insert:
2
(1A) In satisfying himself or herself as mentioned in paragraphs (1)(a)
3
and (b), the General Manager must consult with the Commissioner.
4
69 After subsection 249(5)
5
Insert:
6
(5A) In satisfying himself or herself as mentioned in paragraph (5)(a),
7
the General Manager must consult with the Commissioner.
8
70 After subsection 249(6)
9
Insert:
10
(6A) In satisfying himself or herself as mentioned in paragraph (6)(a),
11
the General Manager must consult with the Commissioner.
12
71 Subsections 255(1) and (4) and 257(11)
13
Omit "General Manager", substitute "Commissioner".
14
72 Subsection 261(2)
15
Omit "FWC", substitute "Commissioner".
16
73 Subsections 265(5) and 266(1)
17
Omit "General Manager", substitute "Commissioner".
18
74 Section 268 (heading)
19
Repeal the heading, substitute:
20
268 Reports etc. to be lodged with the Commissioner
21
75 Section 268
22
Omit "General Manager", substitute "Commissioner".
23
76 Section 268
24
Omit "FWC", substitute "Commissioner".
25
The Registered Organisations Commissioner Schedule 1
Amendments Part 1
No. , 2014
Fair Work (Registered Organisations) Amendment Bill 2014
11
77 Paragraph 269(2)(a)
1
Omit "General Manager", substitute "Commissioner".
2
78 Paragraph 269(2)(c)
3
Omit "FWC", substitute "Commissioner".
4
79 Subsection 270(1)
5
Omit "General Manager" (wherever occurring), substitute
6
"Commissioner".
7
80 Paragraph 270(3)(c)
8
Omit "FWC" (wherever occurring), substitute "Commissioner".
9
81 Subsection 270(7)
10
Omit "General Manager" (wherever occurring), substitute
11
"Commissioner".
12
82 Section 271
13
Omit "General Manager" (wherever occurring), substitute
14
"Commissioner".
15
83 Section 272 (heading)
16
Repeal the heading, substitute:
17
272 Information to be provided to members or Commissioner
18
84 Subsections 272(1) and (4) and 278(2)
19
Omit "General Manager", substitute "Commissioner".
20
85 Subsections 310(1) and (2)
21
Repeal the subsections, substitute:
22
Application other than for order relating to directions
23
contravention
24
(1) The following may apply for an order under this Part, other than an
25
order relating to a directions contravention:
26
(a) the Commissioner, or a person authorised in writing by the
27
Commissioner to make the application;
28
Schedule 1 The Registered Organisations Commissioner
Part 1 Amendments
12
Fair Work (Registered Organisations) Amendment Bill 2014
No. , 2014
(b) the General Manager, or a person authorised in writing by the
1
General Manager to make the application.
2
Note:
For the meaning of directions contravention, see section 6.
3
Application for order relating to directions contravention
4
(2) The Minister, or a person authorised in writing by the Minister to
5
make the application, may apply for an order under this Part
6
relating to a directions contravention.
7
86 Section 317
8
After:
9
Part 3 provides that if a person is a party to certain kinds of
10
proceedings under this Act, the Commonwealth may, in some
11
circumstances, give the person financial assistance. Division 2 of
12
Part 3 contains a rule about the ordering of costs by a court.
13
insert:
14
Part 3A establishes the Registered Organisations Commission and
15
Registered Organisations Commissioner, provides for the terms
16
and conditions of appointment of the Commissioner and makes
17
provision for staff to assist the Commissioner. The Registered
18
Organisations Commission Special Account is also established by
19
the Part.
20
87 Section 317
21
Omit "General Manager" (wherever occurring), substitute
22
"Commissioner".
23
88 After Part 3 of Chapter 11
24
Insert:
25
The Registered Organisations Commissioner Schedule 1
Amendments Part 1
No. , 2014
Fair Work (Registered Organisations) Amendment Bill 2014
13
Part 3A--Registered Organisations Commissioner
1
and Registered Organisations Commission
2
Division 1--Establishment, functions and powers of
3
Commissioner
4
329AA Establishment
5
There is to be a Registered Organisations Commissioner.
6
329AB Functions of the Commissioner
7
The Commissioner has the following functions:
8
(a) to promote:
9
(i) efficient management of organisations and high
10
standards of accountability of organisations and their
11
office holders to their members; and
12
(ii) compliance with financial reporting and accountability
13
requirements of this Act;
14
including by providing education, assistance and advice to
15
organisations and their members;
16
(b) to monitor acts and practices to ensure they comply with the
17
provisions of this Act providing for the democratic
18
functioning and control of organisations;
19
(c) such other functions as are conferred on the Commissioner
20
by this Act or by another Act;
21
(d) to do anything incidental to or conducive to the performance
22
of any of the above functions.
23
329AC Powers of Commissioner
24
The Commissioner has the power to do all things necessary or
25
convenient to be done for the purposes of performing his or her
26
functions.
27
Note:
The expenditure of public money must comply with the requirements
28
in the Financial Management and Accountability Act 1997.
29
Schedule 1 The Registered Organisations Commissioner
Part 1 Amendments
14
Fair Work (Registered Organisations) Amendment Bill 2014
No. , 2014
Division 2--Terms and conditions of appointment of
1
Commissioner
2
329BA Appointment
3
(1) The Commissioner is to be appointed by the Minister by written
4
instrument.
5
(2) Before the Minister appoints a person as the Commissioner, the
6
Minister must be satisfied that the person:
7
(a) has suitable qualifications or experience; and
8
(b) is of good character.
9
(3) The Commissioner is to be appointed on a full-time basis.
10
329BB Term of appointment
11
The Commissioner holds office for the period specified in the
12
instrument of appointment. The period must not exceed 5 years.
13
Note:
The Commissioner is eligible for reappointment (see section 33AA of
14
the Acts Interpretation Act 1901).
15
329BC Acting Commissioner
16
The Minister may appoint an individual to act as the
17
Commissioner:
18
(a) during a vacancy in the office of the Commissioner (whether
19
or not an appointment has previously been made to the
20
office); or
21
(b) during any period, or during all periods, when the
22
Commissioner is absent from duty or from Australia, or is,
23
for any reason, unable to perform the duties of the office.
24
Note:
Sections 33AB and 33A of the Acts Interpretation Act 1901 have rules
25
that apply to acting appointments.
26
329BD Remuneration
27
(1) The Commissioner is to be paid the remuneration that is
28
determined by the Remuneration Tribunal. If no determination of
29
that remuneration by the Tribunal is in operation, the
30
Commissioner is to be paid the remuneration that is prescribed.
31
The Registered Organisations Commissioner Schedule 1
Amendments Part 1
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Fair Work (Registered Organisations) Amendment Bill 2014
15
(2) The Commissioner is to be paid the allowances that are prescribed.
1
(3) This section has effect subject to the Remuneration Tribunal Act
2
1973.
3
329BE Leave of absence
4
(1) The Commissioner has the recreation leave entitlements that are
5
determined by the Remuneration Tribunal.
6
(2) The Minister may grant the Commissioner leave of absence, other
7
than recreation leave, on the terms and conditions as to
8
remuneration or otherwise that the Minister determines.
9
329BF Outside employment
10
The Commissioner must not engage in paid employment outside
11
the duties of his or her office without the Minister's approval.
12
329BG Disclosure of interests to the Minister
13
The Commissioner must give written notice to the Minister of all
14
interests, pecuniary or otherwise, that the Commissioner has or
15
acquires and that conflict or could conflict with the proper
16
performance of the Commissioner's functions.
17
329BH Other terms and conditions
18
The Commissioner holds office on the terms and conditions (if
19
any) in relation to matters not covered by this Act that are
20
determined by the Minister.
21
329BI Resignation
22
(1) The Commissioner may resign his or her appointment by giving
23
the Minister a signed notice of resignation.
24
(2) The resignation takes effect on the day it is received by the
25
Minister or, if a later day is specified in the resignation, on that
26
later day.
27
Schedule 1 The Registered Organisations Commissioner
Part 1 Amendments
16
Fair Work (Registered Organisations) Amendment Bill 2014
No. , 2014
329BJ Termination of appointment
1
(1) The Minister may terminate the appointment of the Commissioner:
2
(a) for misbehaviour; or
3
(b) if the Commissioner is unable to perform the duties of his or
4
her office because of physical or mental incapacity.
5
(2) The Minister must terminate the appointment of the Commissioner
6
if:
7
(a) the Commissioner:
8
(i) becomes bankrupt; or
9
(ii) takes steps to take the benefit of any law for the relief of
10
bankrupt or insolvent debtors; or
11
(iii) compounds with one or more of his or her creditors; or
12
(iv) makes an assignment of his or her remuneration for the
13
benefit of one or more of his or her creditors; or
14
(b) the Commissioner is absent, except on leave of absence, for
15
14 consecutive days or for 28 days in any 12 months; or
16
(c) the Commissioner engages in paid employment contrary to
17
section 329BF; or
18
(d) the Commissioner fails, without reasonable excuse, to
19
comply with section 329BG.
20
Division 3--Staff and consultants
21
329CA Staff
22
(1) The staff assisting the Commissioner are to be persons engaged
23
under the Public Service Act 1999 and made available for the
24
purpose by the Fair Work Ombudsman (within the meaning of the
25
Fair Work Act).
26
(2) When performing services for the Commissioner, the persons:
27
(a) are subject to the directions of the Commissioner; and
28
(b) are not subject to the directions of the Fair Work
29
Ombudsman (within the meaning of the Fair Work Act).
30
329CB Other persons assisting the Commissioner
31
The Commissioner may also be assisted:
32
The Registered Organisations Commissioner Schedule 1
Amendments Part 1
No. , 2014
Fair Work (Registered Organisations) Amendment Bill 2014
17
(a) by employees of Agencies (within the meaning of the Public
1
Service Act 1999); or
2
(b) by officers and employees of a State or Territory; or
3
(c) by officers and employees of authorities of the
4
Commonwealth, a State or a Territory;
5
whose services are made available to the Commissioner in
6
connection with the performance of any of the Commissioner's
7
functions.
8
329CC Consultants
9
(1) The Commissioner may, on behalf of the Commonwealth, engage
10
persons having suitable qualifications and experience as
11
consultants to the Commissioner.
12
(2) The consultants are to be engaged on terms and conditions that the
13
Commissioner determines in writing.
14
Division 4--Establishment and function of the Registered
15
Organisations Commission
16
329DA Establishment
17
The Registered Organisations Commission is established by this
18
section.
19
Note:
The Commission does not have a legal identity separate from the
20
Commonwealth.
21
329DB Constitution of the Commission
22
The Commission consists of:
23
(a) the Commissioner; and
24
(b) any staff assisting the Commissioner as mentioned in
25
subsection 329CA(1).
26
329DC Function of the Commission
27
The Commission's function is to assist the Commissioner in the
28
performance of the Commissioner's functions.
29
Schedule 1 The Registered Organisations Commissioner
Part 1 Amendments
18
Fair Work (Registered Organisations) Amendment Bill 2014
No. , 2014
329DD Commission has privileges and immunities of the Crown
1
The Commission has the privileges and immunities of the Crown.
2
Division 5--Registered Organisations Commission Special
3
Account
4
329EA Registered Organisations Commission Special Account
5
(1) The Registered Organisations Commission Special Account (the
6
Account) is established by this section.
7
(2) The Account is a Special Account for the purposes of the Financial
8
Management and Accountability Act 1997.
9
329EB Credits to the Account
10
There may be credited to the Account amounts equal to the
11
following:
12
(a) amounts received by the Commonwealth in connection with
13
the performance of the Commissioner's functions under this
14
Act;
15
(b) interest received by the Commonwealth from the investment
16
of amounts debited from the Account;
17
(c) amounts received by the Commonwealth in relation to
18
property paid for with amounts debited from the Account;
19
(d) amounts of any gifts given or bequests made for the purposes
20
of the Account.
21
Note:
An Appropriation Act provides for amounts to be credited to a Special
22
Account if any of the purposes of the Account is a purpose that is
23
covered by an item in the Appropriation Act.
24
329EC Purposes of the Account
25
The purposes of the Account are as follows:
26
(a) paying or discharging the costs, expenses and other
27
obligations incurred by the Commonwealth in the
28
performance of the Commissioner's functions;
29
(b) paying any remuneration and allowances payable to any
30
person under this Act (including staff mentioned in
31
section 329CA);
32
The Registered Organisations Commissioner Schedule 1
Amendments Part 1
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Fair Work (Registered Organisations) Amendment Bill 2014
19
(c) meeting the expenses of administering the Account.
1
Note:
See section 21 of the Financial Management and Accountability Act
2
1997 (debits from Special Accounts).
3
Division 6--Reporting requirements
4
329FA Directions from the Minister
5
(1) The Minister may, by legislative instrument, give written directions
6
to the Commissioner about the performance of the Commissioner's
7
functions.
8
Note:
Section 42 (disallowance) and Part 6 (sunsetting) of the Legislative
9
Instruments Act 2003 do not apply to the direction (see sections 44
10
and 54 of that Act).
11
(2) The direction must be of a general nature only.
12
(3) The Commissioner must comply with the direction.
13
329FB Minister may require reports
14
(1) The Minister may, in writing, direct the Commissioner to give the
15
Minister specified reports relating to the Commissioner's
16
functions.
17
(2) The Commissioner must comply with the direction.
18
(3) The direction, or the report (if made in writing), is not a legislative
19
instrument.
20
329FC Annual report
21
Annual report to be given to Minister
22
(1) The Commissioner must, as soon as practicable after the end of
23
each financial year, prepare and give to the Minister, for
24
presentation to the Parliament, a report on the Commissioner's
25
operations during that year.
26
Note:
See also section 34C of the Acts Interpretation Act 1901, which
27
contains provisions about annual reports.
28
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Part 1 Amendments
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Fair Work (Registered Organisations) Amendment Bill 2014
No. , 2014
Contents of annual report
1
(2) The Commissioner must include the following in the report in
2
relation to that year:
3
(a) details of the number and types of investigations conducted
4
by the Commissioner under Part 4 of Chapter 11;
5
(b) details of:
6
(i) when each investigation was started; and
7
(ii) if the investigation has been completed--when it was
8
completed; and
9
(iii) if the investigation has not been completed--when it is
10
expected to be completed;
11
(c) details of any orders applied for under paragraph 310(1)(a);
12
(d) details of the types of education activities undertaken by the
13
Commissioner and whether the education activities were
14
provided to:
15
(i) registered employer organisations; or
16
(ii) registered employee organisations; or
17
(iii) members of registered employer organisations; or
18
(iv) members of registered employee organisations;
19
(e) any other matter prescribed by the regulations.
20
89 Section 330 (heading)
21
Repeal the heading, substitute:
22
330 Commissioner may make inquiries
23
90 Subsections 330(1) and (2)
24
Omit "General Manager", substitute "Commissioner".
25
91 Section 331 (heading)
26
Repeal the heading, substitute:
27
331 Commissioner may conduct investigations
28
92 Section 331
29
Omit "General Manager" (wherever occurring), substitute
30
"Commissioner".
31
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21
93 Subsection 332(1)
1
Omit "General Manager must", substitute "Commissioner must".
2
94 Paragraph 332(1)(a)
3
Omit "FWC", substitute "Commissioner".
4
95 Paragraph 332(1)(b)
5
Omit "General Manager", substitute "Commissioner".
6
96 Subsections 332(2) and (3)
7
Omit "General Manager" (wherever occurring), substitute
8
"Commissioner".
9
97 Subsection 333(1)
10
Omit "FWC", substitute "Commissioner".
11
98 Subsection 333(1)
12
Omit "General Manager", substitute "Commissioner".
13
99 Subsections 333(2) and (3)
14
Omit "General Manager" (wherever occurring), substitute
15
"Commissioner".
16
100 Sections 334 to 335A
17
Omit "General Manager" (wherever occurring), substitute
18
"Commissioner".
19
101 Section 335B
20
Omit "General Manager", substitute "Commissioner".
21
102 Subsection 335C(1)
22
Omit "General Manager", substitute "Commissioner".
23
103 Subsection 335C(1)
24
Omit "of the FWC", substitute "assisting the Commissioner".
25
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Part 1 Amendments
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Fair Work (Registered Organisations) Amendment Bill 2014
No. , 2014
104 Subsection 335C(2)
1
Omit "General Manager" (wherever occurring), substitute
2
"Commissioner".
3
105 Subsection 336(1) (heading)
4
Repeal the heading, substitute:
5
Commissioner must notify reporting unit
6
106 Subsection 336(1)
7
Omit "General Manager is satisfied", substitute "Commissioner is
8
satisfied".
9
107 Subsection 336(1)
10
Omit "the reporting unit concerned", substitute "a reporting unit".
11
108 Subsection 336(1)
12
Omit "General Manager must", substitute "Commissioner must".
13
109 Subsection 336(1A) (heading)
14
Repeal the heading, substitute:
15
Commissioner must make inquiries
16
110 Subsection 336(1A)
17
Omit "General Manager", substitute "Commissioner".
18
111 Subsection 336(2) (heading)
19
Repeal the heading, substitute:
20
Commissioner may take other action
21
112 Subsection 336(2)
22
Omit "General Manager", substitute "Commissioner".
23
113 Subsections 336(3) and (5)
24
Omit "General Manager", substitute "Commissioner".
25
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Fair Work (Registered Organisations) Amendment Bill 2014
23
114 Section 337 (heading)
1
Repeal the heading, substitute:
2
337 Offences in relation to investigation by Commissioner
3
115 Subsection 337(1)
4
Omit "General Manager" (wherever occurring), substitute
5
"Commissioner".
6
116 Before subparagraph 337A(b)(i)
7
Insert:
8
(ia) the Commissioner or a member of the staff assisting the
9
Commissioner;
10
117 Paragraph 337K(3)(a)
11
After "subparagraph (1)(b)(ii)", insert "and to the Commissioner".
12
118 Paragraphs 337K(5)(a) and (b)
13
Omit "FWA Member", substitute "FWC Member".
14
119 Paragraphs 343A(2)(c) to (g)
15
Repeal the paragraphs.
16
120 Paragraphs 343A(2)(i) to (j)
17
Repeal the paragraphs.
18
121 Paragraphs 343A(3)(d) to (g)
19
Repeal the paragraphs.
20
122 Paragraph 343A(3)(h)
21
Omit "a provision of Part 4 of that Chapter or".
22
123 Subsection 343A(3A)
23
Repeal the subsection.
24
124 After section 343A
25
Insert:
26
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Part 1 Amendments
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No. , 2014
343B Delegation by Commissioner
1
(1) The Commissioner may, in writing, delegate to a member of the
2
staff assisting the Commissioner all or any of the Commissioner's
3
functions or powers under this Act.
4
(2) Despite subsection (1), the Commissioner's functions or powers
5
under the following provisions cannot be delegated:
6
(a) subsection 28(1A);
7
(b) subsection 95(3A), (3B) or (3C);
8
(c) subsection 183(4);
9
(d) section 197;
10
(e) any provision of Part 3 or 4 of Chapter 7 (other than
11
section 202);
12
(f) any provision of Division 1, 2, 3 or 4 of Part 3 of Chapter 8;
13
(g) subsection 278(2);
14
(h) section 310;
15
(j) section 334;
16
(k) section 335 or 335A;
17
(ka) subsection 335C(2);
18
(m) subsection 336(1), (2), (3) or (5).
19
(3) Despite subsection (1), the Commissioner's functions or powers
20
under section 330, 331, 332 or 333 can only be delegated to:
21
(a) a member of the staff assisting the Commissioner; or
22
(b) any other person or body the Commissioner is satisfied has
23
substantial or significant experience or knowledge in at least
24
one of the following fields:
25
(i) accounting;
26
(ii) auditing;
27
(iii) financial reporting;
28
(iv) conducting compliance audits or investigations;
29
(v) a field prescribed by the regulations for the purposes of
30
this subparagraph.
31
(5) In exercising powers or functions under a delegation, the delegate
32
must comply with any directions of the Commissioner.
33
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25
125 Paragraph 347(1)(c)
1
Omit "FWC", substitute "Commissioner".
2
126 Section 348
3
After "General Manager", insert "or the Commissioner".
4
127 Section 349
5
Omit "FWC", substitute "Commissioner".
6
128 Section 349
7
Omit "General Manager", substitute "Commissioner".
8
Schedule 1 The Registered Organisations Commissioner
Part 2 Transitional provisions
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Fair Work (Registered Organisations) Amendment Bill 2014
No. , 2014
Part 2
--Transitional provisions
1
129 Definitions
2
In this Part:
3
commencement time means the time when this Schedule commences.
4
Commissioner has the same meaning as in the Act.
5
FWC has the same meaning as in the Act.
6
General Manager has the same meaning as in the Act.
7
the Act means the Fair Work (Registered Organisations) Act 2009.
8
130 Commissioner to complete certain processes
9
(1)
This item applies if:
10
(a) a process begun under the Act is incomplete at the
11
commencement time; and
12
(b) because of the amendments made by this Schedule, a
13
function or power that the General Manager or the FWC was
14
required, or able, to perform or exercise in relation to the
15
process has become a function or power of the
16
Commissioner.
17
(2)
For the purposes of completing the process:
18
(a) the Commissioner must or may, as the case requires, perform
19
the function or exercise the power; and
20
(b) things done by or in relation to the General Manager or the
21
FWC before the commencement time have effect as if they
22
were done by or in relation to the Commissioner.
23
131 Permission to keep records at premises
24
A permission given by the General Manager under section 234 (storage
25
of records) of the Act that is in force immediately before the
26
commencement time has effect, after that time, as if it had been given
27
by the Commissioner under that section.
28
132 Certain references to include documents dealt with
29
before the commencement time
30
After the commencement time:
31
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27
(a) the reference in subsection 236(5) of the Act to a copy of a
1
document received by the Commissioner includes a reference
2
to a copy of a document received by the General Manager
3
under section 236 of the Act before the commencement time;
4
and
5
(b) the reference in subsection 237(4) of the Act to a statement
6
lodged with the Commissioner under subsection (1) includes
7
a reference to a statement lodged with the FWC under
8
subsection 237(1) of the Act before the commencement time;
9
and
10
(c) the reference in paragraph 347(1)(c) of the Act to a copy of a
11
list lodged with the Commissioner under subsection 233(1)
12
includes a reference to a copy of a list lodged with the FWC
13
under that subsection before the commencement time; and
14
(d) the reference in section 348 of the Act to a certificate of the
15
Commissioner includes a reference to a certificate of the
16
General Manager covered by that section before the
17
commencement time; and
18
(e) the reference in section 349 of the Act to a list of the officers
19
of an organisation or a branch of an organisation lodged with
20
the Commissioner on behalf of the organisation or a copy of
21
any such list certified by the Commissioner includes a
22
reference to such a list lodged with the FWC on behalf of the
23
organisation or a copy of such a list certified by the General
24
Manager before the commencement time.
25
133 Proceedings in relation to civil penalty provisions
26
(1)
This item applies if an application made by the General Manager under
27
Part 2 of Chapter 10 of the Act has not been finally determined before
28
the commencement time.
29
(2)
If the General Manager and the Commissioner agree, by signed writing,
30
that the Commissioner is substituted for the General Manager as a party
31
to any proceeding arising from the application:
32
(a) the agreement has effect accordingly; and
33
(b) the rights and obligations of the General Manager in relation
34
to such a proceeding become rights and obligations of the
35
Commissioner.
36
Schedule 1 The Registered Organisations Commissioner
Part 2 Transitional provisions
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Fair Work (Registered Organisations) Amendment Bill 2014
No. , 2014
134 Other proceedings
1
(1)
This item applies if:
2
(a) an application made by the General Manager under the Act,
3
other than an application under Part 2 of Chapter 10 of the
4
Act, has not been finally determined before the
5
commencement time; and
6
(b) because of the amendments made by this Schedule, the
7
power to make applications of that kind has become a power
8
of the Commissioner.
9
(2)
The Commissioner is substituted for the General Manager as a party to
10
any proceeding arising from the application, and the rights and
11
obligations of the General Manager in relation to such a proceeding
12
become rights and obligations of the Commissioner.
13
135 Information sharing
14
The Commissioner may, for the purposes of performing or exercising
15
his or her functions or powers under the Act, require the General
16
Manager to disclose to the Commissioner information acquired by the
17
General Manager or a member of the staff of the FWC in the
18
performance or exercise of functions or powers under the Act before the
19
commencement time.
20
136 Commissioner's first annual report
21
If this Schedule commences before the end of the financial year ending
22
on 30 June 2014, the Commissioner's report required by section 329FC
23
of the Act for that year must be included as part of the Fair Work
24
Ombudsman's report required by section 686 of the Fair Work Act 2009
25
for that year.
26
137 Minister may make rules about transitional matters
27
The Minister may, by legislative instrument, make rules in relation to
28
transitional matters arising out of the amendments and repeals made by
29
Part 1 of this Schedule.
30
Increased disclosure requirements, investigation powers and penalties Schedule 2
Amendments Part 1
No. , 2014
Fair Work (Registered Organisations) Amendment Bill 2014
29
Schedule 2
--Increased disclosure
1
requirements, investigation powers
2
and penalties
3
Part 1
--Amendments
4
Fair Work (Registered Organisations) Act 2009
5
1 Section 6 (definition of disclosure period)
6
Repeal the definition.
7
2 Section 6
8
Insert:
9
officer and related party disclosure statement has the meaning
10
given by subsection 293J(3).
11
3 Section 6
12
Insert:
13
proceeding means:
14
(a) a proceeding in a court; or
15
(b) a proceeding or hearing before, or an examination by or
16
before, a tribunal;
17
whether the proceeding, hearing or examination is of a civil,
18
administrative, criminal, disciplinary or other nature.
19
4 Section 6
20
Insert:
21
serious contravention, in relation to a contravention of a civil
22
penalty provision by an organisation, a branch of an organisation
23
or a person who is, or was, an officer or employee of an
24
organisation or a branch of an organisation, means a contravention
25
that:
26
(a) materially prejudices the interests of the organisation or
27
branch, or the members of the organisation or branch; or
28
Schedule 2 Increased disclosure requirements, investigation powers and penalties
Part 1 Amendments
30
Fair Work (Registered Organisations) Amendment Bill 2014
No. , 2014
(b) materially prejudices the ability of the organisation or branch
1
to pay its creditors; or
2
(c) is serious.
3
5 Section 16
4
Repeal the section.
5
6 Subsection 51(2) (penalty)
6
Omit "Maximum penalty", substitute "Penalty".
7
7 Subsection 52(1) (note)
8
Repeal the note.
9
8 At the end of subsection 52(1)
10
Add:
11
Civil penalty:
100 penalty units.
12
9 Subsection 52(3) (note)
13
Repeal the note.
14
10 At the end of subsection 52(3)
15
Add:
16
Civil penalty:
100 penalty units.
17
11 Subsections 72(1) to (3) (penalty)
18
Omit "Maximum penalty", substitute "Penalty".
19
12 At the end of subsection 95(3C)
20
Add:
21
Civil penalty:
100 penalty units.
22
13 Subsection 103(4) (penalty)
23
Omit "Maximum penalty", substitute "Penalty".
24
14 Subsection 104(1) (note)
25
Repeal the note.
26
Increased disclosure requirements, investigation powers and penalties Schedule 2
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Fair Work (Registered Organisations) Amendment Bill 2014
31
15 At the end of subsection 104(1)
1
Add:
2
Civil penalty:
100 penalty units.
3
16 Subsection 104(3) (note)
4
Repeal the note.
5
17 At the end of subsection 104(3)
6
Add:
7
Civil penalty:
100 penalty units.
8
18 Subsections 105(1) to (3) (penalty)
9
Omit "Maximum penalty", substitute "Penalty".
10
19 After subparagraph 141(1)(b)(ii)
11
Insert:
12
(iia) the keeping of minute books in which are recorded
13
proceedings and resolutions of meetings of committees
14
of management of the organisation and its branches; and
15
20 Division 3A of Part 2 of Chapter 5
16
Repeal the Division.
17
21 Subsection 151(2) (note)
18
Repeal the note.
19
22 At the end of subsection 151(2)
20
Add:
21
Civil penalty:
60 penalty units.
22
23 Subsection 151(11)
23
Repeal the subsection, substitute:
24
(11) If an organisation and a State union agree, in writing, to terminate
25
an agreement entered into under rules made under subsection (1),
26
the organisation must lodge with the FWC a copy of the agreement
27
to terminate.
28
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Part 1 Amendments
32
Fair Work (Registered Organisations) Amendment Bill 2014
No. , 2014
Civil penalty:
60 penalty units.
1
(11A) If an organisation and a State union agree, in writing, to terminate
2
an agreement entered into under rules made under subsection (1),
3
the General Manager must as soon as practicable enter particulars
4
of the termination in the register kept under subsection 13(1).
5
24 Subsection 152(3) (note)
6
Repeal the note.
7
25 At the end of subsection 152(3)
8
Add:
9
Civil penalty:
60 penalty units.
10
26 Sections 154C and 154D
11
Repeal the sections.
12
27 Paragraph 159(4)(a)
13
Omit "or section 148D".
14
28 Section 169 (note)
15
Repeal the note.
16
29 At the end of section 169
17
Add:
18
Civil penalty:
100 penalty units.
19
30 Subsection 172(1) (note)
20
Repeal the note.
21
31 At the end of subsection 172(1)
22
Add:
23
Civil penalty:
60 penalty units.
24
32 Section 175 (note)
25
Repeal the note.
26
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Fair Work (Registered Organisations) Amendment Bill 2014
33
33 At the end of section 175
1
Add:
2
Civil penalty:
100 penalty units.
3
34 Section 176 (note)
4
Repeal the note.
5
35 At the end of section 176
6
Add:
7
Civil penalty:
100 penalty units.
8
36 Subsections 185(1) and (2) (penalty)
9
Omit "Maximum penalty", substitute "Penalty".
10
37 Subsection 189(2) (note)
11
Repeal the note.
12
38 At the end of subsection 189(2)
13
Add:
14
Civil penalty:
60 penalty units.
15
39 Section 190 (penalty)
16
Omit "Maximum penalty", substitute "Penalty".
17
40 Subsection 191(2) (penalty)
18
Omit "Maximum penalty", substitute "Penalty".
19
41 Subsection 192(1) (note)
20
Repeal the note.
21
42 At the end of subsection 192(1)
22
Add:
23
Civil penalty:
100 penalty units.
24
43 Subsection 192(3) (note)
25
Repeal the note.
26
Schedule 2 Increased disclosure requirements, investigation powers and penalties
Part 1 Amendments
34
Fair Work (Registered Organisations) Amendment Bill 2014
No. , 2014
44 At the end of subsection 192(3)
1
Add:
2
Civil penalty:
100 penalty units.
3
45 Subsection 193(2) (penalty)
4
Omit "Maximum penalty", substitute "Penalty".
5
46 Section 194 (penalty)
6
Omit "Maximum penalty", substitute "Penalty".
7
47 Subsections 195(2) to (6) (penalty)
8
Omit "Maximum penalty", substitute "Penalty".
9
48 Subsection 198(1) (note)
10
Repeal the note.
11
49 At the end of subsection 198(1)
12
Add:
13
Civil penalty:
100 penalty units.
14
50 Subsection 198(4) (note)
15
Repeal the note.
16
51 At the end of subsection 198(4)
17
Add:
18
Civil penalty:
100 penalty units.
19
52 Subsection 198(5) (note)
20
Repeal the note.
21
53 At the end of subsection 198(5)
22
Add:
23
Civil penalty:
100 penalty units.
24
54 Subsection 198(8) (note)
25
Repeal the note.
26
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Fair Work (Registered Organisations) Amendment Bill 2014
35
55 At the end of subsection 198(8)
1
Add:
2
Civil penalty:
100 penalty units.
3
56 Subsections 199(3) and (5) (penalty)
4
Omit "Maximum penalty", substitute "Penalty".
5
57 Subsection 202(5) (penalty)
6
Omit "Maximum penalty", substitute "Penalty".
7
58 Subsection 203(6) (penalty)
8
Omit "Maximum penalty", substitute "Penalty".
9
59 Paragraph 212(b)
10
Omit "or subsection 202(5)", substitute ", subsection 202(5) or
11
section 290A".
12
60 Subsection 230(1) (note)
13
Repeal the note.
14
61 At the end of subsection 230(1)
15
Add:
16
Civil penalty:
60 penalty units.
17
62 Subsection 230(2) (note 1)
18
Repeal the note.
19
63 Subsection 230(2) (note 2)
20
Omit "Note 2", substitute "Note".
21
64 At the end of subsection 230(2) (after note 2)
22
Add:
23
Civil penalty:
60 penalty units.
24
65 At the end of subsection 231(1)
25
Add:
26
Schedule 2 Increased disclosure requirements, investigation powers and penalties
Part 1 Amendments
36
Fair Work (Registered Organisations) Amendment Bill 2014
No. , 2014
Civil penalty:
60 penalty units.
1
66 Subsection 231(2) (note)
2
Repeal the note.
3
67 At the end of subsection 231(2)
4
Add:
5
Civil penalty:
60 penalty units.
6
68 Subsection 232(1) (penalty)
7
Omit "Maximum penalty", substitute "Penalty".
8
69 At the end of subsection 233(1)
9
Add:
10
Civil penalty:
60 penalty units.
11
70 At the end of subsection 233(2)
12
Add:
13
Civil penalty:
60 penalty units.
14
71 Subsection 233(3) (note)
15
Repeal the note.
16
72 At the end of subsection 233(3)
17
Add:
18
Civil penalty:
100 penalty units.
19
73 Subsection 235(2) (note)
20
Repeal the note.
21
74 At the end of subsection 235(2)
22
Add:
23
Civil penalty:
60 penalty units.
24
Increased disclosure requirements, investigation powers and penalties Schedule 2
Amendments Part 1
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Fair Work (Registered Organisations) Amendment Bill 2014
37
75 Subsection 236(1) (note)
1
Repeal the note.
2
76 At the end of subsection 236(1)
3
Add:
4
Civil penalty:
60 penalty units.
5
77 Subsection 236(2) (note)
6
Repeal the note.
7
78 At the end of subsection 236(2)
8
Add:
9
Civil penalty:
60 penalty units.
10
79 Subsection 237(1) (note)
11
Repeal the note.
12
80 At the end of subsection 237(1)
13
Add:
14
Civil penalty:
100 penalty units.
15
81 Subsection 237(3) (note)
16
Repeal the note.
17
82 At the end of subsection 237(3)
18
Add:
19
Civil penalty:
100 penalty units.
20
83 Subsection 253(3) (note 1)
21
Repeal the note.
22
84 Subsection 253(3) (note 2)
23
Renumber as Note 1.
24
85 Subsection 253(3) (note 3)
25
Renumber as Note 2.
26
Schedule 2 Increased disclosure requirements, investigation powers and penalties
Part 1 Amendments
38
Fair Work (Registered Organisations) Amendment Bill 2014
No. , 2014
86 At the end of section 253 (after note 3)
1
Add:
2
(4) A reporting unit must not contravene this section.
3
Civil penalty:
100 penalty units.
4
87 Subsection 254(3) (note)
5
Repeal the note.
6
88 At the end of section 254
7
Add:
8
(4) A reporting unit must not contravene this section.
9
Civil penalty:
100 penalty units.
10
89 After subsection 255(2)
11
Insert:
12
(2A) The reporting guidelines for the purposes of section 253 and 270
13
must require a report that shows the total expenditure incurred by
14
reporting units during the financial year in relation to each of the
15
following:
16
(a) remuneration, and other employment-related costs and
17
expenses, in respect of employees;
18
(b) advertising;
19
(c) operating costs;
20
(d) donations to political parties;
21
(e) legal costs.
22
Note:
The total expenditure may be shown in diagrammatic form, such as a
23
pie chart.
24
90 Subsection 256(1) (note)
25
Repeal the note.
26
91 At the end of subsection 256(1)
27
Add:
28
Civil penalty:
100 penalty units.
29
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39
92 Subsection 256(3) (note)
1
Repeal the note.
2
93 At the end of subsection 256(3)
3
Add:
4
Civil penalty:
60 penalty units.
5
94 Subsection 256(4) (note)
6
Repeal the note.
7
95 At the end of subsection 256(4)
8
Add:
9
Civil penalty:
60 penalty units.
10
96 Subsection 256(5) (note)
11
Repeal the note.
12
97 At the end of subsection 256(5)
13
Add:
14
Civil penalty:
60 penalty units.
15
98 Subsection 256(6) (note)
16
Repeal the note.
17
99 At the end of subsection 256(6)
18
Add:
19
Civil penalty:
60 penalty units.
20
100 Subsection 257(10) (note)
21
Repeal the note.
22
101 At the end of subsection 257(10)
23
Add:
24
Civil penalty:
100 penalty units.
25
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Fair Work (Registered Organisations) Amendment Bill 2014
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102 Subsection 257(11) (note)
1
Repeal the note.
2
103 At the end of subsection 257(11)
3
Add:
4
Civil penalty:
100 penalty units.
5
104 Subsection 258(1) (penalty)
6
Omit "Maximum penalty", substitute "Penalty".
7
105 Section 259 (note)
8
Repeal the note.
9
106 At the end of section 259
10
Add:
11
Civil penalty:
100 penalty units.
12
107 Subsections 260(3) and (4) (penalty)
13
Omit "Maximum penalty", substitute "Penalty".
14
108 Subsection 263(2) (note)
15
Repeal the note.
16
109 At the end of subsection 263(2)
17
Add:
18
Civil penalty:
60 penalty units.
19
110 Subsection 263(3) (note)
20
Repeal the note.
21
111 At the end of subsection 263(3)
22
Add:
23
Civil penalty:
60 penalty units.
24
112 Subsection 263(5) (note)
25
Repeal the note.
26
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41
113 At the end of subsection 263(5)
1
Add:
2
Civil penalty:
60 penalty units.
3
114 Subsection 264(3) (note)
4
Repeal the note.
5
115 At the end of subsection 264(3)
6
Add:
7
Civil penalty:
60 penalty units.
8
116 Subsection 265(1) (note)
9
Repeal the note.
10
117 At the end of subsection 265(1)
11
Add:
12
Civil penalty:
100 penalty units.
13
118 Subsection 265(4) (note)
14
Repeal the note.
15
119 At the end of subsection 265(4)
16
Add:
17
Civil penalty:
100 penalty units.
18
120 Subsection 265(5) (note)
19
Repeal the note.
20
121 At the end of subsection 265(5)
21
Add:
22
Civil penalty:
100 penalty units.
23
122 Subsection 266(1) (note)
24
Repeal the note.
25
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Part 1 Amendments
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Fair Work (Registered Organisations) Amendment Bill 2014
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123 At the end of subsection 266(1)
1
Add:
2
Civil penalty:
60 penalty units.
3
124 Section 267 (note)
4
Repeal the note.
5
125 At the end of section 267
6
Add:
7
Civil penalty:
100 penalty units.
8
126 Section 268
9
After "general meeting", insert ", or meeting of the committee of
10
management,".
11
127 Paragraph 268(c)
12
Omit "a meeting", insert "a general meeting, or presented to a meeting
13
of the committee of management, as the case requires,".
14
128 Section 268 (note)
15
Repeal the note.
16
129 At the end of section 268
17
Add:
18
Civil penalty:
100 penalty units.
19
130 Subsection 270(4) (note)
20
Repeal the note.
21
131 At the end of subsection 270(4)
22
Add:
23
Civil penalty:
100 penalty units.
24
132 Subsection 270(5) (note)
25
Repeal the note.
26
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43
133 At the end of subsection 270(5)
1
Add:
2
Civil penalty:
100 penalty units.
3
134 Subsection 270(6) (note)
4
Repeal the note.
5
135 At the end of subsection 270(6)
6
Add:
7
Civil penalty:
100 penalty units.
8
136 Subsection 270(7) (note)
9
Repeal the note.
10
137 At the end of subsection 270(7)
11
Add:
12
Civil penalty:
100 penalty units.
13
138 Subsection 272(3) (note)
14
Repeal the note.
15
139 At the end of subsection 272(3)
16
Add:
17
Civil penalty:
60 penalty units.
18
140 Subsection 272(5) (note)
19
Repeal the note.
20
141 At the end of subsection 272(5)
21
Add:
22
Civil penalty:
60 penalty units.
23
142 Subsection 274(1) (note)
24
Repeal the note.
25
Schedule 2 Increased disclosure requirements, investigation powers and penalties
Part 1 Amendments
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Fair Work (Registered Organisations) Amendment Bill 2014
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143 At the end of subsection 274(1)
1
Add:
2
Civil penalty:
60 penalty units.
3
144 At the end of subsection 276(1)
4
Add:
5
Civil penalty:
60 penalty units.
6
145 Subsection 276(2) (note)
7
Repeal the note.
8
146 At the end of subsection 276(2)
9
Add:
10
Civil penalty:
60 penalty units.
11
147 Section 281
12
After:
13
Part 2 sets out the general duties of officers and employees in
14
relation to the financial management of an organisation or a branch
15
of an organisation.
16
insert:
17
Part 2A sets out disclosure obligations about remuneration paid to
18
officers and material personal interests of officers.
19
Part 2A also restricts officers from taking part in making decisions
20
in relation to matters in which they have a material personal
21
interest, requires the preparation of officer and related party
22
disclosure statements and requires officers to undertake approved
23
training in relation to their financial duties.
24
148 Subsection 285(1) (note)
25
Repeal the note.
26
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45
149 At the end of subsection 285(1)
1
Add:
2
Civil penalty:
100 penalty units, or 1,200 penalty units for a
3
serious contravention.
4
150 Subsection 286(1) (note)
5
Repeal the note.
6
151 At the end of subsection 286(1)
7
Add:
8
Civil penalty:
100 penalty units, or 1,200 penalty units for a
9
serious contravention.
10
152 Subsection 286(2) (note)
11
Repeal the note.
12
153 At the end of subsection 286(2)
13
Add:
14
Civil penalty:
100 penalty units, or 1,200 penalty units for a
15
serious contravention.
16
154 Subsection 287(1) (note)
17
Repeal the note.
18
155 At the end of subsection 287(1)
19
Add:
20
Civil penalty:
100 penalty units, or 1,200 penalty units for a
21
serious contravention.
22
156 Subsection 287(2) (note)
23
Repeal the note.
24
157 At the end of subsection 287(2)
25
Add:
26
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46
Fair Work (Registered Organisations) Amendment Bill 2014
No. , 2014
Civil penalty:
100 penalty units, or 1,200 penalty units for a
1
serious contravention.
2
158 Subsection 288(1) (note 1)
3
Omit "1".
4
159 Subsection 288(1) (note 2)
5
Repeal the note.
6
160 At the end of subsection 288(1) (after note 2)
7
Add:
8
Civil penalty:
100 penalty units, or 1,200 penalty units for a
9
serious contravention.
10
161 Subsection 288(2) (note)
11
Repeal the note.
12
162 At the end of subsection 288(2)
13
Add:
14
Civil penalty:
100 penalty units, or 1,200 penalty units for a
15
serious contravention.
16
163 After section 290
17
Insert:
18
290A Good faith, use of position and use of information--criminal
19
offences
20
Good faith--officers of organisations and branches
21
(1) An officer of an organisation or a branch commits an offence if he
22
or she:
23
(a) is reckless; or
24
(b) is intentionally dishonest;
25
and fails to exercise his or her powers or discharge his or her
26
duties:
27
(c) in good faith in the best interests of the organisation; or
28
(d) for a proper purpose.
29
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47
Penalty: 2,000 penalty units or imprisonment for 5 years, or both.
1
Use of position--officers and employees of organisations and
2
branches
3
(2) An officer or employee of an organisation or a branch commits an
4
offence if the officer or employee uses his or her position
5
dishonestly:
6
(a) with the intention of directly or indirectly gaining an
7
advantage for himself or herself, or someone else, or causing
8
detriment to the organisation; or
9
(b) reckless as to whether the use may result in himself or herself
10
or someone else directly or indirectly gaining an advantage,
11
or causing detriment to the organisation.
12
Penalty: 2,000 penalty units or imprisonment for 5 years, or both.
13
Use of information--officers and employees of organisations and
14
branches
15
(3) A person who obtains information because he or she is, or has
16
been, an officer or employee of an organisation or a branch
17
commits an offence if he or she uses the information dishonestly:
18
(a) with the intention of directly or indirectly gaining an
19
advantage for himself or herself, or someone else, or causing
20
detriment to the organisation; or
21
(b) reckless as to whether the use may result in himself or herself
22
or someone else directly or indirectly gaining an advantage,
23
or causing detriment to the organisation.
24
Penalty: 2,000 penalty units or imprisonment for 5 years, or both.
25
164 Section 291 (heading)
26
Repeal the heading, substitute:
27
291 Interaction of sections 285 to 289 and 290A with other laws etc.
28
165 Section 291
29
After "289", insert "and 290A".
30
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Part 1 Amendments
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Fair Work (Registered Organisations) Amendment Bill 2014
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166 After Part 2 of Chapter 9
1
Insert:
2
Part 2A--Disclosure obligations
3
Division 1--Preliminary
4
293A Simplified outline
5
This Part sets out disclosure obligations about remuneration paid to
6
officers and material personal interests of disclosing officers (see
7
subsection 293C(1)).
8
It also restricts disclosing officers from taking part in making
9
decisions in relation to matters in which they have a material
10
personal interest, requires the preparation of officer and related
11
party disclosure statements and requires officers to undertake
12
approved training in relation to their financial duties.
13
Division 2--Disclosure obligations and restrictions on
14
taking part in making decisions
15
293B Disclosure of remuneration paid to officers
16
Disclosure by officers
17
(1) Each officer of an organisation must, in accordance with
18
section 293BA or 293BB, disclose to the organisation details of
19
any remuneration paid to the officer:
20
(a) because the officer is a member of a Board, if:
21
(i) the officer is a member of the Board only because the
22
officer is an officer of the organisation; or
23
(ii) the officer was nominated for the position of member of
24
the Board by the organisation, a branch of the
25
organisation or a peak council; or
26
(b) by a related party of the organisation, in connection with the
27
performance of the officer's duties as an officer.
28
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49
Civil penalty:
100 penalty units, or 1,200 penalty units for a
1
serious contravention.
2
(2) Each officer of a branch of an organisation must, in accordance
3
section 293BA or 293BB, disclose to the branch details of any
4
remuneration paid to the officer:
5
(a) because the officer is a member of a Board, if:
6
(i) the officer is a member of the Board only because the
7
officer is an officer of the branch; or
8
(ii) the officer was nominated for the position of member of
9
the Board by the organisation, a branch of the
10
organisation or a peak council; or
11
(b) by a related party of the branch, in connection with the
12
performance of the officer's duties as an officer.
13
Civil penalty:
100 penalty units, or 1,200 penalty units for a
14
serious contravention.
15
293BA Immediate disclosure
16
The disclosure is in accordance with this section if it is made in
17
writing to the committee of management of the organisation or
18
branch, as the case may be, as soon as practicable after the
19
remuneration is paid to the officer.
20
293BB Standing disclosure of remuneration
21
(1) The disclosure is in accordance with this section if:
22
(a) remuneration is to be paid to the officer, under a contract or
23
other arrangement, on a regular basis during the financial
24
year; and
25
(b) the officer gives to the members of the committee of
26
management of the organisation or branch, as the case may
27
be, standing notice of the amounts of remuneration that the
28
officer expects to be paid during the financial year; and
29
(c) the requirements set out in subsections (2) to (5) are met.
30
(2) The standing notice must be given at any time before, or as soon as
31
practicable after, the first payment is made to the officer.
32
(3) If, during the financial year, an amount of remuneration paid to the
33
officer under the contract or arrangement exceeds the amount
34
Schedule 2 Increased disclosure requirements, investigation powers and penalties
Part 1 Amendments
50
Fair Work (Registered Organisations) Amendment Bill 2014
No. , 2014
notified in the standing notice, the officer must, as soon as
1
practicable, notify the committee of management of the
2
organisation or branch, as the case may be, of the excess.
3
(4) If, at the end of the financial year, the total amount (the final total)
4
of remuneration paid to the officer under the contract or
5
arrangement is more, or less, than the total amount notified under
6
paragraph (2)(b), the officer must, as soon as practicable after the
7
end of the financial year, notify the committee of management of
8
the organisation or branch, as the case may be, of the final total.
9
(5) Notice under this section must be given in writing.
10
293BC Disclosure of certain remuneration and benefits by
11
organisations and branches
12
(1) An organisation must, for a financial year, disclose to the members
13
of the organisation and its branches details of the following in
14
accordance with subsection (3):
15
(a) the identity of each officer of the organisation who, when all
16
officers of the organisation are ranked by relevant
17
remuneration for the financial year (from highest to lowest),
18
is ranked no lower than fifth;
19
(b) for each of those officers:
20
(i) the actual amount of the officer's relevant remuneration
21
for the financial year; and
22
(ii) the value and form of the officer's relevant non-cash
23
benefits for the financial year.
24
(2) A branch of an organisation must, for a financial year, disclose to
25
the members of the branch, details of the following in accordance
26
with subsection (3):
27
(a) the identity of each officer of the branch who, when all
28
officers of the branch are ranked by relevant remuneration for
29
the financial year (from highest to lowest), is ranked no lower
30
than fifth;
31
(b) for each of those officers:
32
(i) the actual amount of the officer's relevant remuneration
33
for the financial year; and
34
(ii) the value and form of the officer's relevant non-cash
35
benefits for the financial year.
36
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51
Manner of disclosure
1
(3) A disclosure under subsection (1) or (2) must be made as part of
2
the officer and related party disclosure statement required under
3
Division 3.
4
Note:
Failure to prepare an officer and related party disclosure statement is a
5
contravention of a civil penalty provision (see section 293J).
6
Relevant remuneration
7
(4) For the purposes of this section, the relevant remuneration of an
8
officer of an organisation or a branch of an organisation for a
9
financial year is the sum of the following:
10
(a) any remuneration disclosed to the organisation or the branch
11
by the officer under subsection 293B(1) or (2), during the
12
financial year;
13
(b) any remuneration paid, during the financial year, to the
14
officer by the organisation or the branch.
15
Relevant non-cash benefits
16
(5) For the purposes of this section, the relevant non-cash benefits of
17
an officer of an organisation or a branch of an organisation for a
18
financial year are the non-cash benefits provided to the officer, at
19
any time during the financial year, in connection with the
20
performance of the officer's duties as an officer, by the
21
organisation or the branch or by a related party of the organisation
22
or the branch.
23
293C Disclosure of material personal interests of officers
24
Disclosure by officers
25
(1) This section applies to each officer (a disclosing officer) of an
26
organisation or a branch of an organisation whose duties include
27
duties that relate to the financial management of the organisation or
28
branch.
29
(2) A disclosing officer of an organisation must, in accordance with
30
subsection (5), disclose to the committee of management of the
31
organisation details of any material personal interest that the
32
Schedule 2 Increased disclosure requirements, investigation powers and penalties
Part 1 Amendments
52
Fair Work (Registered Organisations) Amendment Bill 2014
No. , 2014
officer has or acquires in a matter that relates to the affairs of the
1
organisation.
2
Civil penalty:
100 penalty units, or 1,200 penalty units for a
3
serious contravention.
4
(3) A disclosing officer of a branch must, in accordance with
5
subsection (5), disclose to the committee of management of the
6
branch details of any material personal interest that the officer has
7
or acquires in a matter that relates to the affairs of the branch.
8
Civil penalty:
100 penalty units, or 1,200 penalty units for a
9
serious contravention.
10
(4) A disclosing officer does not need to disclose an interest under
11
subsection (2) or (3) if:
12
(a) the interest:
13
(i) arises because the disclosing officer is a member, or a
14
representative of a member, of an organisation or a
15
branch and the interest is held in common with the other
16
members of the organisation or branch; or
17
(ii) arises in relation to the officer's remuneration as an
18
officer of the organisation or branch; or
19
(iii) relates to a contract the organisation or branch is
20
proposing to enter into that is subject to approval by the
21
members of the organisation or branch and will not
22
impose any obligation on the organisation or branch if it
23
is not approved by the members; or
24
(iv) is in a contract, or proposed contract, with, or for the
25
benefit of, or on behalf of, a related party of the
26
organisation or branch that is a body corporate and
27
arises merely because the officer is on the Board of the
28
related party; or
29
(b) the officer has given a standing notice of the nature and
30
extent of the interest under section 293D and the notice is
31
still effective in relation to the interest.
32
(5) A disclosure made under subsection (2) or (3) must:
33
(a) be made as soon as practicable after the interest is acquired;
34
and
35
(b) provide details of:
36
(i) the nature and extent of the interest; and
37
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53
(ii) the relation of the interest to the affairs of the
1
organisation or branch; and
2
(c) be made:
3
(i) at a meeting of the committee of management (either
4
orally or in writing); or
5
(ii) to the members of the committee of management
6
individually in writing.
7
The disclosure is made under subparagraph (c)(ii) when it has been
8
given to every member of the committee of management.
9
Committee of management must record details of disclosure in
10
minutes of meeting
11
(6) An organisation or a branch contravenes this subsection if a
12
committee of management of the organisation or branch (as the
13
case may be) fails to record details of a disclosure made under
14
subsection (2) or (3):
15
(a) if the disclosure is made at a meeting of the committee of
16
management of the organisation or branch--in the minutes of
17
the meeting of the committee of management at which the
18
disclosure is made; or
19
(b) in any other case--in the minutes of the first meeting of the
20
committee of management after the disclosure is made.
21
Civil penalty:
100 penalty units.
22
(7) An organisation or a branch contravenes this subsection if a
23
committee of management of the organisation or branch (as the
24
case may be) fails, within 28 days of being requested in writing to
25
do so by a member of the organisation or branch, to provide to the
26
member details of disclosures made to the committee of
27
management under subsection (2) or (3).
28
Civil penalty:
100 penalty units.
29
30
Schedule 2 Increased disclosure requirements, investigation powers and penalties
Part 1 Amendments
54
Fair Work (Registered Organisations) Amendment Bill 2014
No. , 2014
293D Officer may give members of committee of management
1
standing notice about an interest
2
Power to give notice
3
(1) An officer of an organisation who has an interest in a matter may
4
give to the members of the committee of management of the
5
organisation standing notice of the nature and extent of the interest
6
in the matter in accordance with subsection (2). The notice may be
7
given at any time and whether or not the matter relates to the
8
affairs of the organisation at the time the notice is given.
9
Note:
The standing notice may be given to the members of the committee of
10
management before the interest becomes a material personal interest.
11
(2) The standing notice must:
12
(a) give details of the nature and extent of the interest; and
13
(b) be given:
14
(i) at a meeting of the committee of management (either
15
orally or in writing); or
16
(ii) to the members of the committee of management
17
individually in writing.
18
The standing notice is given under subparagraph (b)(ii) when it has
19
been given to every member of the committee of management.
20
Standing notice must be tabled at meeting if given to members of
21
the committee of management individually
22
(3) If the standing notice is given to the members of the committee of
23
management individually in writing, it must be tabled at the next
24
meeting of the committee of management after it is given.
25
Nature and extent of interest must be recorded in minutes
26
(4) The committee of management must ensure that the nature and
27
extent of the interest disclosed in the standing notice is recorded in
28
the minutes of the meeting of the committee of management at
29
which the standing notice is given or tabled.
30
Dates of effect and expiry of standing notice
31
(5) The standing notice:
32
(a) takes effect as soon as it is given; and
33
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55
(b) ceases to have effect if a person who was not a member of
1
the committee of management at the time when the notice
2
was given is appointed as a member of the committee of
3
management.
4
A standing notice that ceases to have effect under paragraph (b)
5
commences to have effect again if it is given to the person referred
6
to in that paragraph.
7
Effect of material increase in nature or extent of interest
8
(6) The standing notice ceases to have effect in relation to a particular
9
interest if the nature or extent of the interest materially increases
10
above that disclosed in the notice.
11
Effect of contravention by officer
12
(7) A contravention of this section by an officer does not affect the
13
validity of any act, transaction, agreement, instrument, resolution
14
or other thing.
15
(8) This section applies in relation to a branch of an organisation as if
16
references to an organisation were references to a branch of an
17
organisation.
18
293E Interaction of section 293C and 293D with other laws
19
Sections 293C and 293D have effect in addition to, and not in
20
derogation of:
21
(a) any general law rule about conflicts of interest; and
22
(b) any provision in an organisation's or branch's rules that
23
restricts an officer or employee from having a material
24
personal interest in a matter involving duties or interests that
25
conflict with their duties or interests as an officer of the
26
organisation or branch.
27
293F Restrictions on taking part in making decisions
28
(1) An officer of an organisation who has a material personal interest
29
in a matter that relates to the affairs of the organisation:
30
(a) must not be present during any deliberation by the
31
organisation on the matter; and
32
Schedule 2 Increased disclosure requirements, investigation powers and penalties
Part 1 Amendments
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Fair Work (Registered Organisations) Amendment Bill 2014
No. , 2014
(b) must not take part in any decision of the organisation with
1
respect to the matter.
2
Civil penalty:
100 penalty units, or 1,200 penalty units for a
3
serious contravention.
4
(2) An officer of a branch of an organisation who has a material
5
personal interest in a matter that relates to the affairs of the branch:
6
(a) must not be present during any deliberation by the branch on
7
the matter; and
8
(b) must not take part in any decision of the branch with respect
9
to the matter.
10
Civil penalty:
100 penalty units, or 1,200 penalty units for a
11
serious contravention.
12
(3) Subsections (1) and (2) do not apply if:
13
(a) subsection (4) allows the officer to be present and take part in
14
a discussion with respect to the matter; or
15
(b) the interest does not need to be disclosed under section 293C.
16
(4) The officer may be present and take part in a decision with respect
17
to the matter if members of the committee of management of the
18
organisation or branch (as the case may be) who do not have a
19
material personal interest in the matter have passed a resolution
20
that:
21
(a) identifies the officer, the nature and extent of the officer's
22
interest in the matter and its relation to the affairs of the
23
organisation or branch; and
24
(b) states that those members are satisfied that the interest should
25
not disqualify the officer from being present and taking part
26
in a decision with respect to the matter.
27
Effect of contravention by officer
28
(5) A contravention by an officer of this section does not affect the
29
validity of any act, transaction, agreement, instrument, resolution
30
or other thing.
31
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293G Disclosure of payments made by an organisation or a branch
1
(1) An organisation must, for a financial year and in accordance with
2
subsection (3), disclose to the members of the organisation and its
3
branches, details of each payment made by the organisation during
4
the financial year:
5
(a) to a related party of the organisation or of a branch of the
6
organisation; or
7
(b) to a declared person or body of the organisation.
8
(2) A branch of an organisation must, for a financial year and in
9
accordance with subsection (3), disclose to the members of the
10
branch each payment made by the branch, during the financial
11
year:
12
(a) to a related party of the branch; or
13
(b) to a declared person or body of the branch.
14
(3) A disclosure under subsection (1) or (2) must be made as part of
15
the officer and related party disclosure statement required under
16
Division 3.
17
Note:
Failure to prepare an officer and related party disclosure statement is a
18
contravention of a civil penalty provision (see section 293J).
19
(4) Subsections (1) and (2) do not apply to a payment made to a
20
related party if:
21
(a) the related party is an officer of the organisation or the
22
branch; and
23
(b) the payment:
24
(i) consists of remuneration paid to the officer by the
25
organisation or the branch; or
26
(ii) is reimbursement for expenses reasonably incurred by
27
the officer in performing the officer's duties as an
28
officer.
29
Note:
Section 293B requires certain disclosures in relation to remuneration.
30
(5) Subsections (1) and (2) do not apply to a payment made to a
31
related party if the payment consists of amounts deducted by the
32
organisation or the branch from remuneration payable to one or
33
more officers or employees of the organisation or the branch (as
34
the case may be).
35
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Arm's length terms
1
(5A) Subsections (1) and (2) do not apply to a payment made to a
2
related party if the payment is made on terms that:
3
(a) would be reasonable in the circumstances if the organisation,
4
or the branch, and the related party were dealing at arm's
5
length; or
6
(b) are less favourable to the related party than the terms referred
7
to in paragraph (a).
8
Small amounts given to related party
9
(5B) Subsections (1) and (2) do not apply to a payment made to a
10
related party if the total of the following amounts is less than or
11
equal to the amount prescribed by the regulations for the purposes
12
of this subsection:
13
(a) the amount of the payment;
14
(b) the total of all other payments given to the related party, in
15
the financial year, in relation to which subsections (1) and (2)
16
do not apply to the payment because of this subsection.
17
(5C) In working out the total of the payments referred to in
18
paragraphs (5B)(a) and (b) disregard:
19
(a) amounts that have been repaid; and
20
(b) amounts that fall under any other exception in this section.
21
Payments to members that do not discriminate unfairly
22
(5D) Subsections (1) and (2) do not apply to a payment made to a
23
related party if:
24
(a) the payment is given to the related party in their capacity as a
25
member of the organisation or the branch; and
26
(b) making the payment does not discriminate unfairly against
27
the other members of the organisation or the branch.
28
(6) For the purposes of this section, a person or body is a declared
29
person or body of an organisation or a branch of an organisation if:
30
(a) an officer of the organisation or the branch has disclosed a
31
material personal interest under subsection 293C(2) or (3) or
32
293D(1); and
33
(b) the interest relates to, or is in, the person or body; and
34
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(c) the officer has not notified the organisation or the branch that
1
the officer no longer has the interest.
2
293H Section 293G--order for alternative disclosure arrangement
3
(1) If an organisation considers that it is too onerous for the
4
organisation to comply with section 293G because special
5
circumstances exist in relation to the organisation, the organisation
6
may lodge with the Commissioner an application for an order
7
under this section.
8
(2) The application must be accompanied by:
9
(a) a statement of the special circumstances that exist in relation
10
to the organisation; and
11
(b) particulars of a proposed alternative arrangement (the
12
alternative disclosure arrangement) to provide for
13
disclosures, in relation to payments made by the organisation,
14
that are appropriate for the organisation's special
15
circumstances and provide appropriate transparency; and
16
(c) evidence of the organisation's past and current high standards
17
of financial accountability and control that are appropriate for
18
the organisation's special circumstances and provide
19
appropriate transparency.
20
(3) If the Commissioner is satisfied, on application by an organisation
21
under subsection (1):
22
(a) that special circumstances exist in relation to the
23
organisation; and
24
(b) that, taking into account the evidence provided in accordance
25
with paragraph (2)(c), the proposed alternative disclosure
26
arrangement provides for disclosures, in relation to payments
27
made by the organisation, that are appropriate for the
28
organisation's special circumstances and provide appropriate
29
transparency; and
30
(c) that the proposed alternative disclosure arrangement:
31
(i) complies with and is not contrary to this Act (other than
32
section 293G); and
33
(ii) is not otherwise contrary to law;
34
the Commissioner may, in writing, make an order under this
35
subsection.
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(4) If the Commissioner makes the order under subsection (3):
1
(a) the order must set out the alternative disclosure arrangement;
2
and
3
(b) the alternative disclosure arrangement takes effect when the
4
Commissioner makes the order; and
5
(c) compliance with the alternative disclosure arrangement set
6
out in the order is, for the purposes of this Act, taken to be
7
compliance with section 293G.
8
(5) The order remains in force until the earlier of:
9
(a) the day the order is revoked under subsection (6); and
10
(b) the day 5 years after the day the order was made.
11
(6) The Commissioner may revoke the order if the Commissioner:
12
(a) either:
13
(i) is no longer satisfied of a matter referred to in
14
paragraph (3)(a), (b) or (c); or
15
(ii) is satisfied that the organisation has contravened the
16
alternative disclosure arrangement set out in the order;
17
and
18
(b) has given the organisation an opportunity, as prescribed, to
19
show cause why the order should not be revoked.
20
(7) Subsection 604(1) of the Fair Work Act does not apply in relation
21
to a decision of the Commissioner under subsection (3).
22
Note:
Subsection 604(1) of the Fair Work Act provides for appeals from
23
certain decisions of the Commissioner.
24
(8) This section applies in relation to a branch of an organisation as if
25
references to an organisation were references to a branch of an
26
organisation.
27
(9) An order under subsection (3) is not a legislative instrument.
28
Division 3--Officer and related party disclosure statements
29
293J Officer and related party disclosure statements
30
(1) An organisation must:
31
(a) as soon as practicable after the end of each financial year,
32
cause an officer and related party disclosure statement to be
33
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prepared for the organisation in relation to the financial year
1
in accordance with this section; and
2
(b) within the period of 6 months starting at the end of the
3
financial year:
4
(i) cause the officer and related party disclosure statement
5
to be provided to the members of the organisation and
6
its branches; and
7
(ii) lodge with the Commissioner a copy of the officer and
8
related party disclosure statement provided to the
9
members.
10
Civil penalty:
100 penalty units, or 1,200 penalty units for a
11
serious contravention.
12
(2) A branch of an organisation must:
13
(a) as soon as practicable after the end of each financial year,
14
cause an officer and related party disclosure statement to be
15
prepared for the branch in relation to the financial year in
16
accordance with this section; and
17
(b) within the period of 6 months starting at the end of the
18
financial year:
19
(i) cause the officer and related party disclosure statement
20
to be provided to the members of the branch; and
21
(ii) lodge with the Commissioner a copy of the officer and
22
related party disclosure statement provided to the
23
members.
24
Civil penalty:
100 penalty units, or 1,200 penalty units for a
25
serious contravention.
26
(3) The officer and related party disclosure statement for an
27
organisation or a branch of an organisation must include details of
28
the disclosures provided by the organisation or the branch under
29
sections 293BC, 293G and 293H for the financial year.
30
Division 4--Training in relation to financial duties
31
293K Officers to undertake approved training
32
(1) Unless exempted under section 293M, each officer of an
33
organisation or a branch of an organisation whose duties include
34
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duties (financial duties) that relate to the financial management of
1
the organisation or the branch must undertake training:
2
(a) approved by the Commissioner under section 293L; and
3
(b) that covers each of the officer's financial duties.
4
(2) The organisation or branch must ensure that the officer completes
5
the training within 6 months after the person begins to hold the
6
office.
7
Civil penalty:
100 penalty units.
8
293L Approved training
9
(1) The Commissioner may, for the purposes of section 293K, approve
10
training provided by:
11
(a) an organisation; or
12
(b) a peak council; or
13
(c) a body or person the Commissioner is satisfied has
14
appropriate skills and expertise to provide the training;
15
if the Commissioner is satisfied that the training covers one or
16
more of the duties of officers of organisations and branches of
17
organisations that relate to the financial management of
18
organisations and branches of organisations.
19
(2) If the approval is made in writing, the approval is not a legislative
20
instrument.
21
293M Commissioner may grant exemption from financial training
22
(1) An organisation or branch of an organisation may, in writing, apply
23
to the Commissioner for an officer of the organisation or the
24
branch to be exempted from the requirement to undertake training
25
under section 293K.
26
(2) The Commissioner may grant the exemption if the Commissioner
27
is satisfied that the officer has a proper understanding of the
28
officer's financial duties within the organisation or the branch
29
because of the officer's:
30
(a) experience as a company director; or
31
(b) experience as an officer of a registered organisation; or
32
(c) other professional qualifications and experience.
33
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(3) The Commissioner may grant the exemption subject to any
1
conditions that the Commissioner considers appropriate in the
2
circumstances.
3
167 Paragraph 297(1)(a)
4
Omit "or the Fair Work Act".
5
168 Subsection 297(2) (note)
6
Repeal the note.
7
169 At the end of subsection 297(2)
8
Add:
9
Civil penalty:
100 penalty units, or 1,200 penalty units for a
10
serious contravention.
11
170 Subsection 297(3) (note)
12
Repeal the note.
13
171 At the end of subsection 297(3)
14
Add:
15
Civil penalty:
100 penalty units, or 1,200 penalty units for a
16
serious contravention.
17
172 Paragraph 298(1)(a)
18
Omit "or the Fair Work Act".
19
173 Subsection 298(2) (note)
20
Repeal the note.
21
174 At the end of subsection 298(2)
22
Add:
23
Civil penalty:
100 penalty units, or 1,200 penalty units for a
24
serious contravention.
25
175 Subsection 298(3) (note)
26
Repeal the note.
27
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176 At the end of subsection 298(3)
1
Add:
2
Civil penalty:
100 penalty units, or 1,200 penalty units for a
3
serious contravention.
4
177 Paragraph 299(1)(a)
5
Omit "or the Fair Work Act".
6
178 Subsection 299(2) (note)
7
Repeal the note.
8
179 At the end of subsection 299(2)
9
Add:
10
Civil penalty:
100 penalty units, or 1,200 penalty units for a
11
serious contravention.
12
180 Subsection 299(3) (note)
13
Repeal the note.
14
181 At the end of subsection 299(3)
15
Add:
16
Civil penalty:
100 penalty units, or 1,200 penalty units for a
17
serious contravention.
18
182 Paragraph 300(1)(a)
19
Omit "or the Fair Work Act".
20
183 Subsection 300(2) (note)
21
Repeal the note.
22
184 At the end of subsection 300(2)
23
Add:
24
Civil penalty:
100 penalty units, or 1,200 penalty units for a
25
serious contravention.
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185 Subsection 300(3) (note)
1
Repeal the note.
2
186 At the end of subsection 300(3)
3
Add:
4
Civil penalty:
100 penalty units, or 1,200 penalty units for a
5
serious contravention.
6
187 Paragraph 301(1)(a)
7
Omit "or the Fair Work Act".
8
188 Subsection 301(2) (note)
9
Repeal the note.
10
189 At the end of subsection 301(2)
11
Add:
12
Civil penalty:
100 penalty units, or 1,200 penalty units for a
13
serious contravention.
14
190 Subsection 301(3) (note)
15
Repeal the note.
16
191 At the end of subsection 301(3)
17
Add:
18
Civil penalty:
100 penalty units, or 1,200 penalty units for a
19
serious contravention.
20
192 Paragraph 302(1)(a)
21
Omit "or the Fair Work Act".
22
193 Subsection 302(2) (note)
23
Repeal the note.
24
194 At the end of subsection 302(2)
25
Add:
26
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Civil penalty:
100 penalty units, or 1,200 penalty units for a
1
serious contravention.
2
195 Subsection 302(3) (note)
3
Repeal the note.
4
196 At the end of subsection 302(3)
5
Add:
6
Civil penalty:
100 penalty units, or 1,200 penalty units for a
7
serious contravention.
8
197 Paragraph 303(1)(a)
9
Omit "or the Fair Work Act".
10
198 Subsection 303(2) (note)
11
Repeal the note.
12
199 At the end of subsection 303(2)
13
Add:
14
Civil penalty:
100 penalty units, or 1,200 penalty units for a
15
serious contravention.
16
200 Subsection 305(2)
17
Repeal the subsection, substitute:
18
(2) A civil penalty provision is a subsection, or a section that is not
19
divided into subsections, that has set out at its foot a pecuniary
20
penalty, or penalties, indicated by the words "Civil penalty".
21
201 At the end of section 305
22
Add:
23
(4) The Federal Court must apply the rules of evidence and procedure
24
for civil matters when hearing and determining an application for
25
an order under this Part.
26
202 Subsection 306(1)
27
Omit "Subject to subsection (1A), in", substitute "In".
28
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203 Paragraph 306(1)(a)
1
Omit "300 penalty units", substitute "5 times the pecuniary penalty
2
specified for the civil penalty provision".
3
204 Paragraph 306(1)(b)
4
Omit "60 penalty units", substitute "the pecuniary penalty specified for
5
the civil penalty provision".
6
205 Subsection 306(1A)
7
Repeal the subsection.
8
206 Subsection 306(2)
9
Omit ", reporting unit".
10
207 Subsection 306(2)
11
Omit "by the person", substitute "by the person or organisation".
12
208 At the end of section 306
13
Add:
14
(3) A person is not liable to more than one pecuniary penalty under
15
this Part in relation to the same conduct.
16
209 After section 307
17
Insert:
18
307A Disqualification orders
19
(1) The Federal Court may make an order disqualifying a person from
20
holding office in an organisation for a period that the Court
21
considers appropriate if:
22
(a) the person has contravened a civil penalty provision; and
23
(b) the Court is satisfied that the disqualification is justified.
24
(2) In determining whether the disqualification is justified, the Court
25
may have regard to:
26
(a) the person's conduct in relation to the management, business
27
and property of any organisation; and
28
(b) any other matter that the Court considers appropriate.
29
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210 Section 311
1
After "the person", insert "or organisation".
2
211 Section 317
3
After:
4
Part 3A establishes the Registered Organisations Commission and
5
Registered Organisations Commissioner, provides for the terms
6
and conditions of appointment of the Commissioner and makes
7
provision for staff to assist the Commissioner. The Registered
8
Organisations Commission Special Account is also established by
9
the Part.
10
insert:
11
Part 3B sets out the circumstances in which the Commissioner or
12
the General Manager may disclose information obtained in the
13
performance of functions or exercise of powers under this Act.
14
212 After Part 3A of Chapter 11
15
Insert:
16
Part 3B--Information sharing
17
18
329G When information may be disclosed
19
Information to which this section applies
20
(1) This section applies to information acquired by the following in the
21
performance of functions or exercise of powers under this Act:
22
(a) the Commissioner or a member of the staff assisting the
23
Commissioner;
24
(b) the General Manager or a member of the staff of the FWC.
25
Disclosure that is necessary or appropriate, or likely to assist
26
administration or enforcement
27
(2) The Commissioner or General Manager may disclose, or authorise
28
the disclosure of, the information if he or she reasonably believes:
29
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(a) that it is necessary or appropriate to do so in the course of
1
performing or exercising his or her functions or powers
2
(including under the Fair Work Act); or
3
(b) that the disclosure is likely to assist in the administration or
4
enforcement of a law of the Commonwealth, a State or a
5
Territory.
6
213 Before section 330
7
Insert:
8
Division 1--Inquiries
9
214 Before section 331
10
Insert:
11
Division 2--Investigations
12
215 Section 335 (heading)
13
Repeal the heading, substitute:
14
335 Conduct of investigations
15
216 Subsection 335(1)
16
Repeal the subsection, substitute:
17
(1) This section applies if the Commissioner believes on reasonable
18
grounds that a person:
19
(a) has information or a document that is relevant to an
20
investigation; or
21
(b) is capable of giving evidence which the Commissioner has
22
reason to believe is relevant to an investigation.
23
217 Subsection 335(2)
24
Omit "making an investigation, the Commissioner may, by written
25
notice, require the person", substitute "the investigation, the
26
Commissioner may, by written notice, require the person to do one or
27
more of the following".
28
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218 Paragraph 335(2)(a)
1
Omit "person; and", substitute "person;".
2
219 Paragraph 335(2)(b)
3
Omit "access; and", substitute "access;".
4
220 At the end of subsection 335(2)
5
Add:
6
; (d) to give to the Commissioner such other reasonable assistance
7
in connection with the investigation as is specified in the
8
notice.
9
Note:
Failure to comply with a requirement made under this subsection is an
10
offence (see section 337).
11
221 Subsection 335(3)
12
Omit all the words after "attend", substitute:
13
must:
14
(a) state the general nature of the matters to which the
15
investigation relates; and
16
(b) state that the person may be accompanied by another person
17
who may, but does not have to, be a lawyer; and
18
(c) set out the effect of section 337AD (self-incrimination); and
19
(d) state whether or not the person will be required to answer
20
questions on oath or affirmation; and
21
(e) if the person will be required to answer questions on oath or
22
affirmation--set out the effect of section 335F (attendee's
23
lawyer).
24
Note:
For questioning on oath or affirmation, see Division 3.
25
222 Section 335A
26
Repeal the section.
27
223 Section 335C
28
Repeal the section, substitute:
29
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Division 3--Questioning on oath or affirmation
1
335C When this Division applies
2
This Division applies if a person (the attendee) is required, for the
3
purposes of an investigation, to attend before another person (the
4
investigator) to answer questions on oath or affirmation.
5
335D Requirements made of attendee
6
(1) The investigator may question the attendee on oath or affirmation
7
and may, for that purpose:
8
(a) require the attendee to either take an oath or make an
9
affirmation; and
10
(b) administer an oath or affirmation to the attendee.
11
Note:
Failure to comply with a requirement made under this subsection is an
12
offence (see section 337AA).
13
(2) The oath or affirmation to be taken or made by the attendee for the
14
purposes of the investigation is an oath or affirmation that the
15
statements that the attendee will make will be true.
16
(3) The investigator may require the attendee to answer a question that
17
is put to the attendee at the investigation.
18
Note:
Failure to comply with a requirement made under this subsection is an
19
offence (see section 337).
20
335E Questioning to take place in private
21
(1) The questioning must take place in private and the investigator
22
may give directions about who may be present during the
23
questioning, or during a part of it.
24
(2) A person must not be present during the questioning unless he or
25
she is:
26
(a) the investigator or the attendee; or
27
(b) the Commissioner or a member of the staff assisting the
28
Commissioner authorised by the Commissioner to be present;
29
or
30
(c) is entitled to be present:
31
(i) because of a direction under subsection (1); or
32
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(ii) because the person is the attendee's lawyer, or another
1
person accompanying the attendee as mentioned in
2
paragraph 335(3)(a).
3
Note:
Failure to comply with this subsection is an offence (see
4
section 337AA).
5
335F Attendee's lawyer
6
(1) The attendee's lawyer may, at such times during the questioning as
7
the investigator determines:
8
(a) address the investigator; and
9
(b) question the attendee;
10
about matters about which the investigator has questioned the
11
attendee.
12
(2) If, in the investigator's opinion, a person is trying to obstruct the
13
questioning by exercising rights under subsection (1), the
14
investigator may require the person to stop addressing the
15
investigator, or questioning the attendee, as the case requires.
16
Note:
Failure to comply with a requirement made under this subsection is an
17
offence (see section 337AA).
18
335G Record of statements
19
(1) The investigator may, and must if the attendee so requests, cause a
20
record to be made of statements made during the questioning.
21
(2) If a record made under subsection (1) is in writing or is reduced to
22
writing:
23
(a) the investigator may require the attendee to read it, or to have
24
it read to him or her, and may require him or her to sign it;
25
and
26
(b) the investigator must, if requested in writing by the attendee
27
to give to the attendee a copy of the written record, comply
28
with the request without charge but subject to such conditions
29
(if any) as the investigator imposes.
30
Note:
Failure to comply with a requirement made under paragraph (2)(a) is
31
an offence (see section 337AA).
32
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335H Copies given subject to conditions
1
If a copy is given to a person under subsection 335G(2) subject to
2
conditions, the person, and any other person who has possession,
3
custody or control of the copy or a copy of it, must comply with
4
the conditions.
5
Note:
Failure to comply with this section is an offence (see section 337AA).
6
Division 4--Powers in relation to documents
7
335K Application for warrant to seize documents
8
(1) If the Commissioner has reasonable grounds to suspect that there
9
are, or may be within the next 3 days, on particular premises in
10
Australia, documents whose production could be required under
11
section 335, he or she may:
12
(a) lay before a magistrate an information on oath or affirmation
13
setting out those grounds; and
14
(b) apply for the issue of a warrant to search the premises for
15
those documents.
16
(2) On an application under this section, the magistrate may require
17
further information to be given, either orally or by affidavit, in
18
connection with the application.
19
335L Grant of warrant
20
(1) This section applies if, on an application under section 335K, the
21
magistrate is satisfied that there are reasonable grounds to suspect
22
that there are, or may be within the next 3 days, on particular
23
premises, particular documents whose production could be
24
required under section 335.
25
(2) The magistrate may issue a warrant authorising a member of the
26
Australian Federal Police, whether or not named in the warrant,
27
together with any person so named, with such assistance, and by
28
such force, as is necessary and reasonable:
29
(a) to enter on or into the premises; and
30
(b) to search the premises; and
31
(c) to break open and search anything, whether a fixture or not,
32
in or on the premises; and
33
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(d) to take possession of, or secure against interference,
1
documents that appear to be any or all of those documents.
2
(3) If the magistrate issues such a warrant, he or she must set out on
3
the information laid before him or her under section 335K for the
4
purposes of the application:
5
(a) which of the grounds set out in the information; and
6
(b) particulars of any other grounds;
7
he or she has relied on to justify the issue of the warrant.
8
(4) A warrant under this section must:
9
(a) specify the premises and documents referred to in
10
subsection (1); and
11
(b) state whether entry is authorised to be made at any time of
12
the day or night or only during specified hours; and
13
(c) state that the warrant ceases to have effect on a specified day
14
that is not more than 7 days after the day of issue of the
15
warrant.
16
335M Execution of warrant
17
(1) Before any person enters premises under a search warrant issued
18
under section 335L, a member of the Australian Federal Police
19
must:
20
(a) announce that the member is authorised to enter the premises;
21
and
22
(b) give any person at the premises an opportunity to allow entry
23
to the premises.
24
(2) However, the member of the Australian Federal Police is not
25
required to comply with subsection (1) if he or she believes on
26
reasonable grounds that immediate entry to the premises is
27
required to ensure that the effective execution of the warrant is not
28
frustrated.
29
(3) If the occupier of the premises is present at the premises:
30
(a) the member of the Australian Federal Police must make
31
available to the occupier a copy of the warrant; and
32
(b) the occupier is entitled to observe the search being
33
conducted.
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(4) The occupier's right to observe the search being conducted ends if
1
the occupier impedes the search.
2
(5) This section does not prevent 2 or more areas of the premises being
3
searched at the same time.
4
(6) If documents are seized under the warrant, the member of the
5
Australian Federal Police or a person assisting the member must
6
provide a receipt for the documents.
7
(7) If 2 or more documents are seized, they may be covered in the one
8
receipt.
9
335N Powers in relation to documents produced or seized
10
(1) This section applies if:
11
(a) documents are produced to a person under a requirement
12
made under section 335; or
13
(b) under a warrant issued under section 335L, a person:
14
(i) takes possession of documents; or
15
(ii) secures documents against interference; or
16
(c) by virtue of a previous application of subsection (8) of this
17
section, documents are delivered into a person's possession.
18
(2) If paragraph (1)(a) applies, the person may take possession of any
19
of the documents.
20
(3) The person may inspect, and may make copies of, or take extracts
21
from, any of the documents.
22
(4) The person may use, or permit the use of, any of the documents for
23
the purposes of a proceeding.
24
(5) The person may retain possession of any of the documents for so
25
long as is necessary:
26
(a) for the purposes of exercising a power conferred by this
27
section (other than this subsection and subsection (7)); or
28
(b) for the purposes of conducting the investigation concerned;
29
or
30
(c) for a decision to be made about whether or not a proceeding
31
to which the documents would be relevant should be begun;
32
or
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(d) for such a proceeding to be begun and carried on.
1
(6) No-one is entitled, as against the person, to claim a lien on any of
2
the documents, but such a lien is not otherwise prejudiced.
3
(7) While the documents are in the person's possession, the person:
4
(a) must permit another person to inspect at all reasonable times
5
such (if any) of the documents as the other person would be
6
entitled to inspect if they were not in the first-mentioned
7
person's possession; and
8
(b) may permit another person to inspect any of the documents.
9
(8) Unless subparagraph (1)(b)(ii) applies, the person may deliver any
10
of the documents into the possession of the Commissioner or of a
11
person authorised by the Commissioner to receive them.
12
(9) If paragraph (1)(a) or (b) applies, the person, or a person into
13
whose possession the person delivers any of the documents under
14
subsection (8), may require:
15
(a) if paragraph (1)(a) applies--a person who so produced any of
16
the documents; or
17
(b) in any case--a person who was a party to the compilation of
18
any of the documents;
19
to explain any matter about the content of any of the documents or
20
to which any of the documents relate.
21
Note:
Failure to comply with a requirement made under this subsection is an
22
offence (see section 337).
23
335P Powers if documents not produced
24
If a person fails to produce particular documents in compliance
25
with a requirement made by another person under section 335, the
26
other person may require the first-mentioned person to explain:
27
(a) where the documents may be found; and
28
(b) who last had possession, custody or control of the documents
29
and where that person may be found.
30
Note:
Failure to comply with a requirement made under this section is an
31
offence (see section 337).
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335Q Power to require person to identify property of an
1
organisation
2
If a person has power under section 335 to require another person
3
to produce documents relating to the affairs of an organisation,
4
whether or not that power is exercised, the first-mentioned person
5
may require the other person:
6
(a) to identify property of the organisation; and
7
(b) to explain how the organisation has kept account of that
8
property.
9
Note:
Failure to comply with a requirement made under this section is an
10
offence (see section 337).
11
224 Section 336 (heading)
12
Repeal the heading, substitute:
13
Division 5--Action following investigations
14
336 Action in relation to reporting units
15
225 Before section 337
16
Insert:
17
Division 6--Offences
18
226 Paragraph 337(1)(a)
19
Repeal the paragraph, substitute:
20
(a) the person fails, intentionally or recklessly, to comply with a
21
requirement under subsection 335(2):
22
(i) to give information or produce a document; or
23
(ii) to attend before the Commissioner or delegate; or
24
(iii) to give to the Commissioner such other reasonable
25
assistance as is specified in a notice under that
26
subsection; or
27
227 At the end of subsection 337(1) (before the penalty)
28
Add:
29
; or (d) the person fails, intentionally or recklessly, to comply with:
30
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(i) a requirement under subsection 335D(3) to answer a
1
question; or
2
(ii) a requirement under subsection 335N(9) to explain a
3
matter about the content of a document or to which a
4
document relates; or
5
(iii) a requirement under section 335P to explain where
6
documents may be found, and who last had possession,
7
custody or control of the documents and where that
8
person may be found; or
9
(iv) a requirement under section 335Q to identify property
10
of an organisation and explain how the organisation has
11
kept account of that property.
12
228 Subsection 337(1) (penalty)
13
Repeal the penalty, substitute:
14
Penalty: 100 penalty units or imprisonment for 2 years, or both.
15
229 Subsections 337(2) to (5)
16
Repeal the subsections, substitute:
17
(2) Paragraphs (1)(a) and (d) do not apply to the extent that the person
18
has a reasonable excuse.
19
(3) Subparagraphs (1)(d)(ii) and (iii) do not apply to the extent that the
20
person has explained the matter to the best of his or her knowledge
21
or belief.
22
(4) Subparagraph (1)(d)(iv) does not apply to the extent that the person
23
has, to the extent that the person is capable of doing so, performed
24
the acts referred to in paragraphs 335Q(a) and (b).
25
Note:
A defendant bears an evidential burden in relation to the matters in
26
subsections (2) to (4) (see subsection 13.3(3) of the Criminal Code).
27
230 Section 337AA
28
Repeal the section, substitute:
29
337AA Strict liability offences
30
(1) A person commits an offence of strict liability if the person:
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(a) fails to comply with a requirement under subsection 335D(1)
1
to take an oath or make an affirmation; or
2
(b) contravenes subsection 335E(2) (questioning to take place in
3
private); or
4
(c) fails to comply with a requirement under
5
paragraph 335G(2)(a) in relation to a record of statements
6
made during questioning; or
7
(d) contravenes section 335H (conditions on use of copies of
8
records of statements made during questioning).
9
Penalty: 60 penalty units.
10
(2) A person commits an offence of strict liability if the person fails to
11
comply with a requirement under subsection 335F(2) to stop
12
addressing an investigator, or questioning an attendee.
13
Penalty: 60 penalty units.
14
(3) Subsections (1) and (2) do not apply to the extent that the person
15
has a reasonable excuse.
16
Note:
A defendant bears an evidential burden in relation to the matter in
17
subsection (3) (see subsection 13.3(3) of the Criminal Code).
18
337AB Obstructing person acting under this Part
19
(1) A person must not:
20
(a) engage in conduct that results in the obstruction or hindering
21
of a person in the exercise of a power under this Part; or
22
(b) engage in conduct that results in the obstruction or hindering
23
of a person who is executing a warrant issued under
24
section 335L.
25
Penalty: 100 penalty units or imprisonment for 2 years, or both.
26
(2) Subsection (1) does not apply to the extent that the person has a
27
reasonable excuse.
28
Note:
A defendant bears an evidential burden in relation to the matters in
29
this subsection (see subsection 13.3(3) of the Criminal Code).
30
(3) The occupier, or person in charge, of premises that a person enters
31
under a warrant issued under section 335L must not intentionally
32
or recklessly fail to provide to that person all reasonable facilities
33
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and assistance for the effective exercise of his or her powers under
1
the warrant.
2
Penalty: 25 penalty units or imprisonment for 6 months, or both.
3
337AC Concealing documents relevant to investigation
4
(1) If the Commissioner, or a person or body to whom the
5
Commissioner has delegated the conduct of an investigation, is
6
investigating, or is about to investigate, a matter, a person must
7
not:
8
(a) in any case--engage in conduct that results in the
9
concealment, destruction, mutilation or alteration of a
10
document relating to that matter; or
11
(b) if a document relating to that matter is in a particular State or
12
Territory--engage in conduct that results in the taking or
13
sending of the document out of that State or Territory or out
14
of Australia.
15
Penalty: 200 penalty units or imprisonment for 5 years, or both.
16
(2) It is a defence to a prosecution for a contravention of subsection (1)
17
if it is proved that the defendant intended neither to defeat the
18
purposes of the investigation, nor to delay or obstruct the
19
investigation, or any proposed investigation under this Part.
20
Note:
A defendant bears a legal burden in relation to a matter mentioned in
21
subsection (2) (see section 13.4 of the Criminal Code).
22
337AD Self-incrimination
23
(1) For the purposes of this Part, it is not a reasonable excuse for a
24
person to refuse or fail:
25
(a) to give information; or
26
(b) to produce a document; or
27
(c) to sign a record;
28
in accordance with a requirement made of the person, that the
29
information, producing the document or signing the record might
30
tend to incriminate the person or make the person liable to a
31
penalty.
32
(2) Subsection (3) applies if:
33
(a) before:
34
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(i) giving information; or
1
(ii) producing a document; or
2
(iii) signing a record;
3
pursuant to a requirement made under this Part, a person
4
(other than a body corporate) claims that the information,
5
producing the document or signing the record might tend to
6
incriminate the person or make the person liable to a penalty;
7
and
8
(b) the information, producing the document or signing the
9
record might in fact tend to incriminate the person or make
10
the person so liable.
11
(3) The information, or the fact that the person has produced the
12
document or signed the record, is not admissible in evidence
13
against the person in:
14
(a) a criminal proceeding; or
15
(b) a proceeding for the imposition of a penalty;
16
other than a proceeding in respect of:
17
(c) in the case of giving information or producing a document--
18
whether the information or document is false or misleading;
19
or
20
(d) in the case of signing a record--whether any statement
21
contained in the record is false or misleading.
22
337AE Legal professional privilege
23
(1) This section applies if:
24
(a) under this Part, a person requires a lawyer:
25
(i) to give information; or
26
(ii) to produce a document; and
27
(b) giving the information would involve disclosing, or the
28
document contains, a privileged communication made by, on
29
behalf of or to the lawyer in his or her capacity as a lawyer.
30
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(2) The lawyer is entitled to refuse to comply with the requirement
1
unless the person to whom, or by or on behalf of whom, the
2
communication was made, consents to the lawyer complying with
3
the requirement.
4
(3) If the lawyer so refuses, he or she must, as soon as practicable, give
5
to the person who made the requirement a written notice setting
6
out:
7
(a) if the lawyer knows the name and address of the person to
8
whom, or by or on behalf of whom, the communication was
9
made--that name and address; and
10
(b) if subparagraph (1)(a)(i) applies and the communication was
11
made in writing--sufficient particulars to identify the
12
document containing the communication; and
13
(c) if subparagraph (1)(a)(ii) applies--sufficient particulars to
14
identify the document, or the part of the document,
15
containing the communication.
16
Penalty: 10 penalty units or imprisonment for 3 months, or both.
17
Division 7--Evidentiary use of certain material
18
337AF Statements made on oath or affirmation during an
19
investigation--proceedings against attendee
20
(1) A statement that a person makes on oath or affirmation during an
21
investigation is admissible in evidence against the person in a
22
proceeding unless:
23
(a) because of subsection 337AD(3), the statement is not
24
admissible in evidence against the person in the proceeding;
25
or
26
(b) the statement is not relevant to the proceeding and the person
27
objects to the admission of evidence of the statement; or
28
(c) the statement is qualified or explained by some other
29
statement made by the person on oath or affirmation during
30
the investigation, evidence of the other statement is not
31
tendered in the proceeding and the person objects to the
32
admission of evidence of the first-mentioned statement; or
33
(d) the statement discloses matter in respect of which the person
34
could claim legal professional privilege in the proceeding if
35
this subsection did not apply in relation to the statement, and
36
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the person objects to the admission of evidence of the
1
statement.
2
(2) Subsection (1) applies in relation to a proceeding against a person
3
even if it is heard together with a proceeding against another
4
person.
5
(3) If a written record of statements made by a person during
6
questioning is signed by the person under subsection 335G(2) or
7
authenticated in any other prescribed manner, the record is, in a
8
proceeding, prima facie evidence of the statements it records, but
9
nothing in this Part limits or affects the admissibility in the
10
proceeding of other evidence of statements made during the
11
questioning.
12
337AG Statements made on oath or affirmation during an
13
investigation--other proceedings
14
If direct evidence by a person (the absent witness) of a matter
15
would be admissible in a proceeding, a statement that the absent
16
witness made on oath or affirmation during an investigation and
17
that tends to establish that matter is admissible in the proceeding as
18
evidence of that matter:
19
(a) if it appears to the court or tribunal that:
20
(i) the absent witness is dead or is unfit, because of
21
physical or mental incapacity, to attend as a witness; or
22
(ii) the absent witness is outside the State or Territory in
23
which the proceeding is being heard and it is not
24
reasonably practicable to secure his or her attendance;
25
or
26
(iii) all reasonable steps have been taken to find the absent
27
witness but he or she cannot be found; or
28
(b) if it does not so appear to the court or tribunal--unless
29
another party to the proceeding requires the party tendering
30
evidence of the statement to call the absent witness as a
31
witness in the proceeding and the tendering party does not so
32
call the absent witness.
33
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337AH Weight of evidence admitted under section 337AG
1
(1) This section applies if evidence of a statement made by a person
2
made on oath or affirmation during an investigation is admitted
3
under section 337AG in a proceeding.
4
(2) In deciding how much weight (if any) to give to the statement as
5
evidence of a matter, regard is to be had to:
6
(a) how long after the matters to which it related the statement
7
was made; and
8
(b) any reason the person may have had for concealing or
9
misrepresenting a material matter; and
10
(c) any other circumstances from which it is reasonable to draw
11
an inference about how accurate the statement is.
12
(3) If the person is not called as a witness in the proceeding:
13
(a) evidence that would, if the person had been so called, have
14
been admissible in the proceeding for the purpose of
15
destroying or supporting his or her credibility is so
16
admissible; and
17
(b) evidence is admissible to show that the statement is
18
inconsistent with another statement that the person has made
19
at any time.
20
(4) However, evidence of a matter is not admissible under this section
21
if, had the person been called as a witness in the proceeding and
22
denied the matter in cross-examination, evidence of the matter
23
would not have been admissible if adduced by the cross-examining
24
party.
25
337AJ Objection to admission of statements made on oath or
26
affirmation during an investigation
27
(1) A party (the adducing party) to a proceeding may, not less than 14
28
days before the first day of the hearing of the proceeding, give to
29
another party to the proceeding written notice that the adducing
30
party:
31
(a) will apply to have admitted in evidence in the proceeding
32
specified statements made on oath or affirmation during an
33
investigation; and
34
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(b) for that purpose, will apply to have evidence of those
1
statements admitted in the proceeding.
2
(2) A notice under subsection (1) must set out, or be accompanied by
3
writing that sets out, the specified statements.
4
(3) Within 14 days after a notice is given under subsection (1), the
5
other party may give to the adducing party a written notice:
6
(a) stating that the other party objects to specified statements
7
being admitted in evidence in the proceeding; and
8
(b) specifying, in relation to each of those statements, the
9
grounds of objection.
10
(4) The period prescribed by subsection (3) may be extended by the
11
court or tribunal or by agreement between the parties concerned.
12
(5) On receiving a notice given under subsection (3), the adducing
13
party must give to the court or tribunal a copy of:
14
(a) the notice under subsection (1) and any writing that
15
subsection (2) required to accompany that notice; and
16
(b) the notice under subsection (3).
17
(6) If subsection (5) is complied with, the court or tribunal may either:
18
(a) determine the objections as a preliminary point before the
19
hearing of the proceeding begins; or
20
(b) defer determination of the objections until the hearing.
21
(7) If a notice has been given in accordance with subsections (1) and
22
(2), the other party is not entitled to object at the hearing of the
23
proceeding to a statement specified in the notice being admitted in
24
evidence in the proceeding, unless:
25
(a) the other party has, in accordance with subsection (3),
26
objected to the statement being so admitted; or
27
(b) the court or tribunal gives the other party leave to object to
28
the statement being so admitted.
29
337AK Copies of, or extracts from, certain documents
30
(1) A copy of, or an extract from, a document relating to the affairs of
31
an organisation is admissible in evidence in a proceeding as if the
32
copy were the original document, or the extract were the relevant
33
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part of the original document, whether or not the copy or extract
1
was made under section 335N.
2
(2) A copy of, or an extract from, a document is not admissible in
3
evidence under subsection (1) unless it is proved that the copy or
4
extract is a true copy of the document, or of the relevant part of the
5
document.
6
(3) For the purposes of subsection (2), a person who has compared:
7
(a) a copy of a document with the document; or
8
(b) an extract from a document with the relevant part of the
9
document;
10
may give evidence, either orally or by an affidavit or statutory
11
declaration, that the copy or extract is a true copy of the document
12
or relevant part, as the case may be.
13
337AL Material otherwise admissible
14
Nothing in this Division renders evidence inadmissible in a
15
proceeding in circumstances where it would have been admissible
16
in that proceeding if this Division had not been enacted.
17
Division 8--Miscellaneous
18
337AM Evidence of authority
19
A person (the investigator) who is about to make, or has made, a
20
requirement of another person under this Part must, if the other
21
person requests evidence of the investigator's authority to make the
22
requirement, produce to the other person:
23
(a) a written authorisation issued to the investigator by the
24
Commissioner; and
25
(b) such other evidence (if any) of the investigator's authority to
26
make the requirement as the Commissioner determines.
27
337AN Application of Evidence Act
28
Part 2.2, sections 69, 70, 71 and 147 and Division 2 of Part 4.6 of
29
the Evidence Act 1995 apply to questioning on oath or affirmation
30
for the purposes of an investigation in the same way that they apply
31
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to a proceeding to which that Act applies under section 4 of that
1
Act.
2
337AP Allowances and expenses
3
(1) A person who, pursuant to a requirement made under section 335,
4
attends before the Commissioner or a person or body to whom the
5
Commissioner has delegated the conduct of an investigation, is
6
entitled to the prescribed allowances and expenses (if any).
7
(2) The Commissioner may pay such amount as he or she thinks
8
reasonable on account of the costs and expenses (if any) that a
9
person incurs in complying with a requirement made under this
10
Part.
11
337AQ Compliance with Part
12
A person is neither liable to a proceeding, nor subject to a liability,
13
merely because the person has complied, or proposes to comply,
14
with a requirement made, or purporting to have been made, under
15
this Part.
16
231 Subsection 337C(6) (penalty)
17
Omit "Maximum penalty", substitute "Penalty".
18
232 Section 337G
19
After "proceedings", insert "before the FWC".
20
233 After paragraph 343B(2)(h)
21
Insert:
22
(i) subsection 329G(2);
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234 Paragraph 343B(2)(k)
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Omit "or 335A".
25
235 Paragraph 343B(2)(ka)
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Repeal the paragraph.
27
236 Before paragraph 343B(2)(m)
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Insert:
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Schedule 2 Increased disclosure requirements, investigation powers and penalties
Part 1 Amendments
88
Fair Work (Registered Organisations) Amendment Bill 2014
No. , 2014
(l) section 335K;
1
237 After subsection 343B(3)
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Insert:
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(4) Despite subsection (1), functions and powers under Division 3
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(questioning on oath or affirmation) can only be delegated to a
5
member of the staff assisting the Commissioner.
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238 Subsection 347(1) (note)
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Repeal the note.
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239 At the end of subsection 347(1)
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Add:
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Civil penalty:
60 penalty units.
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240 Subsections 350(1) and (2) (penalty)
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Omit "Maximum penalty", substitute "Penalty".
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241 Subsection 356(6) (penalty)
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Omit "Maximum penalty", substitute "Penalty".
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Increased disclosure requirements, investigation powers and penalties Schedule 2
Transitional provisions Part 2
No. , 2014
Fair Work (Registered Organisations) Amendment Bill 2014
89
Part 2
--Transitional provisions
1
242 Definitions
2
In this Part:
3
commencement time means the time when this Schedule commences.
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Commissioner has the same meaning as in the Act.
5
General Manager has the same meaning as in the Act.
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the Act means the Fair Work (Registered Organisations) Act 2009.
7
243 Application of Division 3A of Part 2 of Chapter 5 in
8
relation to the 2013-14 financial year
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Division 3A of Part 2 of Chapter 5 of the Act has effect in relation to
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the financial year ending on 30 June 2014 as if it had not been repealed
11
by this Schedule.
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244 Approved training
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A person who has undertaken training approved by the General
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Manager under section 154C of the Act, as in force immediately before
15
the commencement time, is taken, for the purposes of section 293L of
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that Act as in force after the commencement time, to have undertaken
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that training as approved by the Commissioner.
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245 Alternative disclosure arrangements
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In satisfying himself or herself as mentioned in subsection 293H(3) of
20
the Act during the period of 12 months immediately after the
21
commencement time, the Commissioner must take into account:
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(a) any exemption granted to the organisation concerned under
23
section 148D of the Act, as in force before the
24
commencement time; and
25
(b) the statement, particulars and evidence provided in relation to
26
any such exemption as required by subsection 148D(2) of the
27
Act, as in force before the commencement time.
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246 Minister may make rules about transitional matters
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The Minister may, by legislative instrument, make rules in relation to
30
transitional matters arising out of the amendments and repeals made by
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Part 1 of this Schedule.
32