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This is a Bill, not an Act. For current law, see the Acts databases.
2016-2017
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Fair Work (Registered Organisations)
Amendment (Ensuring Integrity) Bill
2017
No. , 2017
(Employment)
A Bill for an Act to amend the Fair Work
(Registered Organisations) Act 2009, and for related
purposes
No. , 2017
Fair Work (Registered Organisations) Amendment (Ensuring Integrity)
Bill 2017
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Disqualification from office
3
Fair Work (Registered Organisations) Act 2009
3
Schedule 2--Cancellation of registration and alternative orders
14
Fair Work (Registered Organisations) Act 2009
14
Schedule 3--Administration of dysfunctional organisations etc.
26
Fair Work (Registered Organisations) Act 2009
26
Schedule 4--Public interest test for amalgamations
34
Fair Work (Registered Organisations) Act 2009
34
Schedule 5--Minor and technical amendments
41
Fair Work (Registered Organisations) Act 2009
41
No. , 2017
Fair Work (Registered Organisations) Amendment (Ensuring Integrity)
Bill 2017
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 is the Fair Work (Registered Organisations) Amendment
6
(Ensuring Integrity) Act 2017.
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
2
Fair Work (Registered Organisations) Amendment (Ensuring Integrity)
Bill 2017
No. , 2017
1
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
2
enacted. It will not be amended to deal with any later amendments of
3
this Act.
4
(2) Any information in column 3 of the table is not part of this Act.
5
Information may be inserted in this column, or information in it
6
may be edited, in any published version of this Act.
7
3 Schedules
8
Legislation that is specified in a Schedule to this Act is amended or
9
repealed as set out in the applicable items in the Schedule
10
concerned, and any other item in a Schedule to this Act has effect
11
according to its terms.
12
Disqualification from office Schedule 1
No. , 2017
Fair Work (Registered Organisations) Amendment (Ensuring Integrity)
Bill 2017
3
Schedule 1--Disqualification from office
1
2
Fair Work (Registered Organisations) Act 2009
3
1 Section 6
4
Insert:
5
designated finding has the meaning given by section 9C.
6
designated law has the meaning given by section 9C.
7
disqualified from holding office in an organisation has the
8
meaning given by section 225.
9
wider criminal finding has the meaning given by section 9C.
10
2 After section 9B
11
Insert:
12
9C Designated findings, designated laws and wider criminal findings
13
Designated findings
14
(1) A designated finding is a finding:
15
(a) in any criminal proceedings against a person--that the person
16
has committed an offence against a designated law; or
17
(b) in any civil proceedings against a person--that the person has
18
contravened, or been involved in a contravention of:
19
(i) a civil penalty provision of this Act; or
20
(ii) a civil remedy provision of the Fair Work Act; or
21
(iii) a civil remedy provision of the Building and
22
Construction Industry (Improving Productivity) Act
23
2016; or
24
(iv) a civil penalty provision of the Fair Work (Building
25
Industry) Act 2012 as in force at any time before its
26
repeal; or
27
(v) a provision of Part IV of the Competition and Consumer
28
Act 2010, or a provision of the Competition Code of a
29
State or Territory, other than an offence; or
30
Schedule 1 Disqualification from office
4
Fair Work (Registered Organisations) Amendment (Ensuring Integrity)
Bill 2017
No. , 2017
(vi) a WHS civil penalty provision of the Work Health and
1
Safety Act 2011; or
2
(vii) a provision of a State or Territory OHS law (within the
3
meaning of the Fair Work Act), other than an offence.
4
Designated law
5
(2) The following are designated laws:
6
(a) this Act;
7
(b) the Fair Work Act;
8
(c) the Building and Construction Industry (Improving
9
Productivity) Act 2016;
10
(d) the Fair Work (Building Industry) Act 2012 as in force at any
11
time before its repeal;
12
(e) Part IV of the Competition and Consumer Act 2010 (and any
13
other provision of the Act so far as it applies in relation to
14
Part IV) and the Competition Code of each State and
15
Territory;
16
(f) the Work Health and Safety Act 2011;
17
(g) each State or Territory OHS law (within the meaning of the
18
Fair Work Act);
19
(h) Part 7.8 of the Criminal Code (causing harm to, and
20
impersonation and obstruction of, Commonwealth public
21
officials) and any other provision of the Code so far as it
22
applies in relation to that Part.
23
Wider criminal findings
24
(3) A wider criminal finding is a finding (other than a designated
25
finding) in any criminal proceedings against a person that the
26
person has committed an offence against any law of the
27
Commonwealth or a State or Territory.
28
9D Findings against part of an organisation
29
A finding made against a part of an organisation is taken for the
30
purposes of this Act to have been made against the organisation.
31
3 Division 1 of Part 4 of Chapter 7 (heading)
32
Repeal the heading, substitute:
33
Disqualification from office Schedule 1
No. , 2017
Fair Work (Registered Organisations) Amendment (Ensuring Integrity)
Bill 2017
5
Division 1--Preliminary
1
4 At the end of section 210
2
Add:
3
This Part also allows applications to be made by the
4
Commissioner, the Minister and certain other persons for a Federal
5
Court order disqualifying a person from holding office in an
6
organisation (see Division 3).
7
A person who is disqualified may commit an offence if the person
8
is a candidate for, or holds or acts as if the person holds, office in
9
an organisation (see Division 4).
10
5 At the end of Division 1 of Part 4 of Chapter 7
11
Add:
12
210A Application of this Part to branches
13
(1) In this Part:
14
(a) a reference to an office in, or holding an office in, an
15
organisation includes an office in, or holding an office in, a
16
branch of an organisation; and
17
(b) a reference to an officer of an organisation includes an officer
18
of a branch of an organisation.
19
(2) This section does not limit subsection 9(2).
20
6 After paragraph 212(a)
21
Insert:
22
(aa) an offence under a law of the Commonwealth or a State or
23
Territory, or another country, punishable on conviction by
24
imprisonment for life or a period of 5 years or more; or
25
7 Subsection 215(1)
26
Omit "an election, or to be elected or appointed, to an office", substitute
27
"election to, or to hold, an office".
28
Schedule 1 Disqualification from office
6
Fair Work (Registered Organisations) Amendment (Ensuring Integrity)
Bill 2017
No. , 2017
8 At the end of subsection 215(1)
1
Add:
2
Note:
The person is also not eligible to be a candidate for election to, or to
3
hold, an office in a branch of an organisation (see subsection 9(2) and
4
section 210A).
5
9 At the end of Part 4 of Chapter 7
6
Add:
7
Division 3--Disqualification orders
8
221 Simplified outline of this Division
9
The Commissioner, the Minister or another person with a sufficient
10
interest may apply to the Federal Court for an order disqualifying a
11
person from holding office in an organisation, on the grounds set
12
out in this Division.
13
222 Disqualification orders
14
(1) Any of the following may apply for an order under this section, if
15
the applicant considers that any one or more of the grounds for
16
disqualification set out in section 223 apply in relation to a person:
17
(a) the Commissioner;
18
(b) the Minister;
19
(c) a person with a sufficient interest.
20
(2) The Federal Court may make an order disqualifying the person
21
from holding office in an organisation, for the period the Court
22
considers appropriate, if the Court:
23
(a) is satisfied that a ground for disqualification set out in the
24
application applies in relation to the person; and
25
(b) does not consider that it would be unjust to disqualify the
26
person, having regard to:
27
(i) the nature of the matters constituting the ground; and
28
(ii) the circumstances and the nature of the person's
29
involvement in the matters constituting the ground; and
30
(iii) any other matters the Court considers relevant.
31
Disqualification from office Schedule 1
No. , 2017
Fair Work (Registered Organisations) Amendment (Ensuring Integrity)
Bill 2017
7
(3) If the Court makes an order under subsection (2), the person is also
1
disqualified from holding office in a branch of an organisation.
2
(4) The Court must give the Commissioner a copy of the order.
3
223 Grounds for disqualification
4
Designated finding or contempt
5
(1) A ground for disqualification applies in relation to a person if:
6
(a) a designated finding is made against the person; or
7
(b) the person is found to be in contempt of court in relation to
8
an order or injunction made under a designated law.
9
Wider criminal finding or contempt
10
(2) A ground for disqualification applies in relation to a person if:
11
(a) either:
12
(i) a wider criminal finding is made against the person; or
13
(ii) the person is found to be in contempt of court in relation
14
to an order or injunction made under any law of the
15
Commonwealth or a State or Territory (other than a
16
designated law); and
17
(b) the person engaged in the conduct to which the finding
18
relates in the course of (or purportedly in the course of)
19
performing functions in relation to any organisation.
20
Multiple failures to prevent contraventions etc. by organisation
21
(3) A ground for disqualification applies in relation to a person if:
22
(a) 2 of any of the following findings are made against any
23
organisation in relation to conduct engaged in while the
24
person is an officer of the organisation:
25
(i) a designated finding;
26
(ii) a wider criminal finding;
27
(iii) a finding that the organisation is in contempt of court in
28
relation to an order or injunction made under any law of
29
the Commonwealth or a State or Territory; and
30
(b) the person failed to take reasonable steps to prevent the
31
conduct.
32
Schedule 1 Disqualification from office
8
Fair Work (Registered Organisations) Amendment (Ensuring Integrity)
Bill 2017
No. , 2017
Corporate impropriety
1
(4) A ground for disqualification applies in relation to a person if:
2
(a) the person is found, in any criminal or civil proceedings
3
against the person, to have committed an offence against, or
4
contravened, a provision of Division 1 of Part 2D.1 of the
5
Corporations Act 2001 (general duties of officers of
6
corporations); or
7
(b) the person becomes disqualified from managing corporations
8
under Part 2D.6 of the Corporations Act 2001.
9
Not fit and proper
10
(5) A ground for disqualification applies in relation to a person if,
11
having regard to any events mentioned in subsection (6), the
12
person is not a fit and proper person to hold office in an
13
organisation.
14
(6) For the purposes of subsection (5), the events are the following:
15
(a) the person is refused an entry permit, or an entry permit held
16
by the person is revoked or suspended, under Part 3-4 of the
17
Fair Work Act;
18
(b) the person is refused a WHS entry permit, or a WHS entry
19
permit held by the person is revoked or suspended, under
20
Part 7 of the Work Health and Safety Act 2011;
21
(c) the person is refused an entry permit (however described), or
22
any such permit held by the person is revoked or suspended,
23
under a State or Territory OHS law (within the meaning of
24
the Fair Work Act);
25
(d) in any criminal or civil proceedings against the person, or in
26
any action against the person by an agency of the
27
Commonwealth or a State or Territory, the person is found to
28
have engaged in conduct involving fraud, dishonesty,
29
misrepresentation, concealment of material facts or a breach
30
of duty;
31
(e) in any criminal proceedings against the person, the person is
32
found to have engaged in conduct involving the intentional
33
use of violence towards another person, the intentional
34
causing of death or injury to another person or the intentional
35
damaging or destruction of property;
36
Disqualification from office Schedule 1
No. , 2017
Fair Work (Registered Organisations) Amendment (Ensuring Integrity)
Bill 2017
9
(f) any other event the Court considers relevant.
1
Division 4--Offences in relation to standing for or holding
2
office etc. while disqualified
3
224 Simplified outline of this Division
4
A person who is disqualified from holding office in an organisation
5
may commit an offence if the person is a candidate for, or holds or
6
acts as if the person holds, office in an organisation.
7
225 Definition of disqualified from holding office in an organisation
8
A person is disqualified from holding office in an organisation if
9
the person is:
10
(a) not eligible to be a candidate for election to, or to hold, an
11
office in an organisation under subsection 215(1); or
12
(b) disqualified from holding office in an organisation under an
13
order made under section 28N or 222.
14
Note:
The person is also disqualified from holding office in a branch of an
15
organisation (see subsections 9(2), 28N(2) and 222(3)).
16
226 Offences
17
(1) A person commits an offence if:
18
(a) the person is a candidate for election to an office in an
19
organisation; and
20
(b) the person is disqualified from holding office in an
21
organisation.
22
Penalty: 100 penalty units or imprisonment for 2 years, or both.
23
(2) A person commits an offence if:
24
(a) the person is an officer of an organisation; and
25
(b) the person is disqualified from holding office in an
26
organisation; and
27
(c) if the person is disqualified from holding office in an
28
organisation under subsection 215(1) and was holding an
29
Schedule 1 Disqualification from office
10
Fair Work (Registered Organisations) Amendment (Ensuring Integrity)
Bill 2017
No. , 2017
office in the organisation at the time of the conviction
1
referred to in that subsection--the person has ceased to hold
2
that office under subsection 215(2) or (3), 216(3) or 217(3).
3
Note:
Paragraph (2)(c) has the effect that a person who is holding office
4
at the time the person is convicted of a prescribed offence does
5
not commit an offence during the period the person is allowed to
6
continue holding the office in accordance with sections 215, 216
7
and 217.
8
Penalty: 100 penalty units or imprisonment for 2 years, or both.
9
(3) A person commits an offence if:
10
(a) the person is disqualified from holding office in an
11
organisation; and
12
(b) the person:
13
(i) exercises the capacity to significantly affect the
14
financial standing or other affairs of an organisation or a
15
part of an organisation; or
16
(ii) gives directions (not including advice given by the
17
person in the proper performance of functions that relate
18
to the person's professional capacity) to the committee
19
of management of an organisation or a part of an
20
organisation; and
21
(c) if subparagraph (b)(ii) applies--the person:
22
(i) knows that the committee of management of the
23
organisation or part is accustomed to act in accordance
24
with the person's directions; or
25
(ii) intends that the committee of management will do so.
26
Penalty: 100 penalty units or imprisonment for 2 years, or both.
27
(4) Strict liability applies to the physical element of the offences
28
against subsections (1), (2) and (3), that a person is disqualified
29
from holding office in an organisation, if the person is disqualified
30
under an order made under section 28N or 222.
31
(5) Nothing in this section affects the powers of the Federal Court in
32
relation to punishment of contempt of the Court.
33
10 Subsection 255E(2)
34
Repeal the subsection, substitute:
35
Disqualification from office Schedule 1
No. , 2017
Fair Work (Registered Organisations) Amendment (Ensuring Integrity)
Bill 2017
11
(2) The Commissioner must refuse to grant the application if the
1
person is disqualified from holding office in an organisation.
2
11 Section 307A
3
Repeal the section.
4
12 At the end of subsection 308(1)
5
Add:
6
Note:
Section 222 also allows the Commissioner, Minister, or a person with
7
a sufficient interest to apply for a disqualification order in relation to a
8
person's contravention of a civil penalty provision of this Act, among
9
other matters.
10
13 Paragraph 324(2)(g)
11
Omit "or to be elected or appointed", substitute "to, or to hold, an office
12
in an organisation".
13
14 Subsection 325(2)
14
Omit "or to be elected or appointed", substitute "for election to, or to
15
hold, an office in an organisation,".
16
15 Application of amendments
17
Definition of prescribed offence
18
(1)
Despite paragraph 213(a) of the Fair Work (Registered Organisations)
19
Act 2009 (the Act), Part 4 of Chapter 7 of the Act does not apply in
20
relation to a conviction for a prescribed offence within the meaning of
21
paragraph 212(aa) of the Act if:
22
(a) the offence is not a prescribed offence within the meaning of
23
another paragraph of section 212 of the Act; and
24
(b) the conviction occurred before commencement.
25
Section 222 disqualification
26
(2)
In satisfying itself as to whether a ground for disqualification set out in
27
section 223 of the Act as amended by this Schedule applies in relation
28
to a person, the Federal Court may only have regard to the following:
29
(a) for the ground mentioned in subsection 223(1) or (2)--a
30
finding made in relation to conduct engaged in:
31
Schedule 1 Disqualification from office
12
Fair Work (Registered Organisations) Amendment (Ensuring Integrity)
Bill 2017
No. , 2017
(i) after commencement; and
1
(ii) for paragraph 223(1)(b) or subparagraph 223(2)(a)(ii)--
2
in relation to an order or injunction made after
3
commencement;
4
and the matters mentioned in paragraph 223(2)(b);
5
(b) for the ground mentioned in subsection 223(3)--a finding
6
made in relation to conduct engaged in:
7
(i) after commencement; and
8
(ii) for subparagraph 223(3)(a)(iii)--in relation to an order
9
or injunction made after commencement;
10
and a failure, after commencement, to take steps as
11
mentioned in the subsection;
12
(c) for the ground mentioned in subsection 223(4)--a finding
13
made in relation to conduct engaged in, or a disqualification
14
in relation to conduct engaged in or an event occurring, after
15
commencement;
16
(d) for the ground mentioned in subsection 223(5):
17
(i) an event occurring after commencement; and
18
(ii) for an event mentioned in paragraph 223(6)(d) or (e)--a
19
finding made in relation to conduct engaged in after
20
commencement.
21
(3)
However, the Court may have regard to matters occurring before or
22
after commencement for the purposes of paragraph 222(2)(b) of the Act
23
as amended by this Schedule.
24
Section 307A disqualification
25
(4)
Section 307A of the Act, as in force immediately before its repeal by
26
this Schedule, continues in effect, after commencement and despite that
27
repeal, in relation to conduct engaged in before commencement.
28
(5)
A reference in section 225 of the Act as amended by this Schedule to an
29
order made under section 222 includes a reference to an order made
30
under section 307A of the Act, including that section as continued in
31
effect by subitem (4).
32
Commencement
33
(6)
In this item:
34
Disqualification from office Schedule 1
No. , 2017
Fair Work (Registered Organisations) Amendment (Ensuring Integrity)
Bill 2017
13
commencement means the start of the day this item commences.
1
Schedule 2 Cancellation of registration and alternative orders
14
Fair Work (Registered Organisations) Amendment (Ensuring Integrity)
Bill 2017
No. , 2017
Schedule 2--Cancellation of registration and
1
alternative orders
2
3
Fair Work (Registered Organisations) Act 2009
4
1 At the end of section 17
5
Add:
6
It is also possible for the Federal Court to make orders instead of
7
cancellation of registration, on application under Division 2 of
8
Part 3. These orders might include disqualification of certain
9
officers, alteration of eligibility rules to exclude certain members
10
and suspension of rights and privileges of the organisation and
11
members.
12
2 Subsections 19(4) and 20(2)
13
After "or its members", insert "or officers".
14
3 Part 3 of Chapter 2 (heading)
15
Repeal the heading, substitute:
16
Part 3--Cancellation of registration and alternative
17
orders
18
19
4 Sections 28 and 29
20
Repeal the sections, substitute:
21
Division 1--Simplified outline of this Part
22
27A Simplified outline of this Part
23
The Federal Court or the FWC may cancel the registration of an
24
organisation.
25
Cancellation of registration and alternative orders Schedule 2
No. , 2017
Fair Work (Registered Organisations) Amendment (Ensuring Integrity)
Bill 2017
15
The grounds for an application to the Federal Court are set out in
1
Division 3. Broadly, the grounds relate to corrupt or unlawful
2
conduct.
3
The same grounds may also be the basis for an application to the
4
Federal Court for alternative orders. The alternative orders might
5
be made in situations involving actions of particular officers or
6
members, or where the Court otherwise considers it appropriate.
7
An applicant can apply to the Court for cancellation or for
8
alternative orders (or both). If an applicant applies for cancellation
9
(or for both cancellation and alternative orders) and the Court finds
10
that the ground for the application is established, the Court may
11
consider making alternative orders instead of cancellation only if
12
the organisation satisfies the Court that cancellation would be
13
unjust.
14
The alternative orders include disqualification of officers,
15
alteration of eligibility rules to exclude certain members and
16
suspension of rights and privileges of the organisation and
17
members.
18
The FWC also has the power to cancel the registration of an
19
organisation on certain, mainly technical, grounds, either on
20
application or on its own motion.
21
Division 2--Applications to the Federal Court for orders
22
under this Part
23
28 Application for cancellation of registration
24
Any of the following persons may apply to the Federal Court for an
25
order cancelling the registration of an organisation, if the person
26
considers that any one or more of the grounds in Division 3 exists
27
in relation to the organisation:
28
(a) the Commissioner;
29
(b) the Minister;
30
(c) a person with a sufficient interest.
31
Schedule 2 Cancellation of registration and alternative orders
16
Fair Work (Registered Organisations) Amendment (Ensuring Integrity)
Bill 2017
No. , 2017
28A Application for alternative orders
1
Any of the following persons may apply to the Federal Court for
2
any one or more of the orders under Division 5 in relation to an
3
organisation, if the person considers that any one or more of the
4
grounds in Division 3 exists in relation to the organisation:
5
(a) the Commissioner;
6
(b) the Minister;
7
(c) a person with a sufficient interest.
8
28B Multiple applications
9
(1) Nothing in this Part prevents a person applying under section 28
10
for cancellation of registration and under section 28A for
11
alternative orders in relation to the same organisation.
12
(2) If a person does so, the Court must deal with the applications
13
together.
14
Division 3--Grounds for Federal Court orders
15
28C Ground--corrupt conduct of officers
16
(1) For the purposes of an application under section 28 or 28A, a
17
ground exists in relation to an organisation if a substantial number
18
of the officers of the organisation or a part of the organisation, or 2
19
or more senior officers of the organisation or a part of the
20
organisation, have:
21
(a) engaged in conduct that involved, or was engaged in for the
22
purposes of, abusing their position as officers; or
23
(b) engaged in conduct that perverted, or was engaged in for the
24
purposes of perverting, the course of justice; or
25
(c) engaged in conduct that, having regard to their duties and
26
powers as officers, involved, or was engaged in for the
27
purposes of, corruption of any other kind; or
28
(d) acted in affairs of the organisation or a part of the
29
organisation in their own interests rather than in the interests
30
of the members of the organisation or part as a whole; or
31
(e) conducted affairs of the organisation or a part of the
32
organisation in a manner that is:
33
Cancellation of registration and alternative orders Schedule 2
No. , 2017
Fair Work (Registered Organisations) Amendment (Ensuring Integrity)
Bill 2017
17
(i) oppressive or unfairly prejudicial to, or unfairly
1
discriminatory against, a member or a class of members;
2
or
3
(ii) contrary to the interests of the members of the
4
organisation or part as a whole.
5
(2) A finding of fact in proceedings in any court is admissible as prima
6
facie evidence of the fact for the purposes of an application made
7
on the ground set out in this section.
8
28D Ground--multiple findings against organisation
9
For the purposes of an application under section 28 or 28A, a
10
ground exists in relation to an organisation if 2 of any of the
11
following findings have been made against the organisation:
12
(a) a designated finding;
13
(b) a wider criminal finding.
14
28E Ground--serious offence committed by organisation
15
For the purposes of an application under section 28 or 28A, a
16
ground exists in relation to an organisation if:
17
(a) the organisation is found, in criminal proceedings against the
18
organisation, to have committed an offence against a law of
19
the Commonwealth or a State or Territory; and
20
(b) the offence is punishable on conviction by a penalty for a
21
body corporate of (or equivalent to) at least 1,500 penalty
22
units.
23
28F Ground--multiple findings against members
24
For the purposes of an application under section 28 or 28A, a
25
ground exists in relation to an organisation if designated findings
26
have been made against a substantial number of the members of:
27
(a) the organisation; or
28
(b) a part of the organisation; or
29
(c) a class of members of the organisation.
30
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28G Ground--non-compliance with orders or injunctions
1
(1) For the purposes of an application under section 28 or 28A, a
2
ground exists in relation to an organisation if:
3
(a) the organisation has failed to comply with an order or
4
injunction made under any law of the Commonwealth or a
5
State or Territory; or
6
(b) a substantial number of the members of:
7
(i) the organisation; or
8
(ii) a part of the organisation; or
9
(iii) a class of members of the organisation;
10
have failed to comply with an order or injunction made under
11
a designated law.
12
(2) A finding of fact in proceedings in any court is admissible as prima
13
facie evidence of the fact for the purposes of an application made
14
on the ground set out in this section.
15
28H Ground--obstructive industrial action
16
(1) For the purposes of an application under section 28 or 28A, a
17
ground exists in relation to an organisation if:
18
(a) the organisation; or
19
(b) a substantial number of the members of:
20
(i) the organisation; or
21
(ii) a part of the organisation; or
22
(iii) a class of members of the organisation;
23
have organised or engaged in industrial action covered by
24
subsection (2).
25
(2) This subsection covers industrial action (other than protected
26
industrial action):
27
(a) that prevented, hindered or interfered with:
28
(i) the activities of a federal system employer; or
29
(ii) the provision of any public service by the
30
Commonwealth or a State or Territory or an authority of
31
the Commonwealth or a State or Territory; or
32
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19
(b) that had, or is having or is likely to have, a substantial
1
adverse effect on the safety, health or welfare of the
2
community or a part of the community.
3
(3) A finding of fact in proceedings in any court is admissible as prima
4
facie evidence of the fact for the purposes of an application made
5
on the ground set out in this section.
6
28J Application of grounds in relation to amalgamated
7
organisations
8
(1) For the purposes of considering whether a ground set out in this
9
Division exists in relation to an organisation that is an
10
amalgamated organisation:
11
(a) a reference to the organisation includes any de-registered
12
organisation in relation to the amalgamation; and
13
(b) a reference to an officer of the organisation includes a person
14
who was an officer of a de-registered organisation; and
15
(c) a reference to conduct of an officer in relation to the
16
organisation includes conduct of the officer as an officer in
17
relation to a de-registered organisation.
18
(2) An expression defined for the purposes of Part 2 of Chapter 3 has
19
the same meaning in this section as it has in that Part.
20
Division 4--Cancellation of registration of an organisation
21
by the Federal Court
22
28K Order cancelling registration of an organisation
23
(1) If an application is made under section 28 for cancellation of the
24
registration of an organisation, the Federal Court must cancel the
25
registration if:
26
(a) the Court finds that a ground set out in the application is
27
established; and
28
(b) the organisation does not satisfy the Court that it would be
29
unjust to cancel its registration, having regard to:
30
(i) the nature of the matters constituting the ground; and
31
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(ii) the action (if any) that has been taken by or against the
1
organisation or its members or officers in relation to
2
those matters; and
3
(iii) the best interests of the members of the organisation as a
4
whole; and
5
(iv) any other matters the Court considers relevant.
6
Note 1:
If the organisation satisfies the Court that it would be unjust to cancel
7
its registration, the Court may decide instead to make any of the orders
8
under Division 5. The Court may do this whether or not an application
9
for any of those orders has been made under section 28A.
10
Note 2:
See Division 7 for the effect of cancellation.
11
(2) The organisation must be given an opportunity of being heard by
12
the Court.
13
28L Orders additional to cancelling registration under section 28K
14
If the Federal Court cancels the registration of an organisation
15
under section 28K, the Court may, by order, do either or both of
16
the following:
17
(a) direct that an application by the former organisation for
18
registration as an organisation is not to be dealt with under
19
this Act before the end of a specified period;
20
(b) direct that an application for the registration of an
21
organisation whose officers are the same, or substantially the
22
same, as the officers of the former organisation is not to be
23
dealt with under this Act before the end of a specified period.
24
Division 5--Alternative Federal Court orders
25
28M When the Federal Court may make alternative orders
26
(1) The Federal Court may make orders under this Division if:
27
(a) the Court finds that a ground set out in an application under
28
section 28 or 28A in relation to an organisation is
29
established; and
30
(b) if the Court is considering an application under section 28, or
31
an application under section 28A together with an application
32
under section 28--the organisation satisfies the Court that it
33
would be unjust to cancel the registration of the organisation.
34
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(2) Before making an order under section 28N or 28P, or exercising
1
the power mentioned in paragraph 28Q(1)(a) in relation to only
2
part of an organisation or only some of its members, the Court
3
must be satisfied that:
4
(a) the ground set out in the application is established wholly or
5
mainly because of the conduct of:
6
(i) officers of a particular part of the organisation; or
7
(ii) members of a particular part of the organisation or a
8
particular class of members of the organisation; and
9
(b) it would not be unjust to make the order, or exercise the
10
power in that way, having regard to:
11
(i) the circumstances and nature of the officers' or
12
members' involvement in the matters constituting the
13
ground; and
14
(ii) any other matters the Court considers relevant.
15
(3) Before exercising the power mentioned in paragraph 28Q(1)(a) in
16
relation to the whole of an organisation or all of its members, the
17
Court must be satisfied that it would not be unjust to exercise the
18
power in that way, having regard to:
19
(a) the nature of the matters constituting the ground; and
20
(b) any other matters the Court considers relevant.
21
(4) The organisation must be given an opportunity of being heard by
22
the Court.
23
28N Order--disqualification of certain officers
24
(1) The Federal Court may make an order disqualifying the officers
25
mentioned in subparagraph 28M(2)(a)(i) from holding office in an
26
organisation, for the period the Court considers appropriate.
27
(2) If the Court does so, the officers are also disqualified from holding
28
office in a branch of an organisation.
29
(3) The Court must give the Commissioner a copy of the order.
30
28P Order--exclusion of certain members
31
(1) The Federal Court may make an order:
32
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(a) determining alterations of the eligibility rules of the
1
organisation so as to exclude from eligibility for membership
2
of the organisation persons belonging to the part of the
3
organisation, or the class of members, mentioned in
4
subparagraph 28M(2)(a)(ii); or
5
(b) if persons belonging to such a part or class are eligible for
6
membership under an agreement of the kind referred to in
7
section 151--declaring that the persons are excluded from
8
eligibility for membership despite anything in the agreement.
9
(2) An alteration of rules made under this section takes effect on the
10
date of the order or on such other day as is specified in the order.
11
(3) If the Court makes an order under this section, the Court may also,
12
by order, prohibit the organisation, for a specified period, from
13
seeking consent under section 158 to an alteration of the
14
organisation's eligibility rules that would have the effect of
15
restoring eligibility to any persons or class of persons excluded by
16
the order under this section.
17
28Q Order--suspension of rights and privileges etc. and later
18
reconsideration of question of cancellation or alternative
19
orders
20
Powers to suspend rights, privileges etc.
21
(1) The Federal Court may, by order, exercise any of the following
22
powers:
23
(a) the power to suspend, to the extent specified in the order, any
24
of the rights, privileges or capacities of the organisation or a
25
part of the organisation, or of all or any of its members, as
26
such members, under this Act, the Fair Work Act or any
27
other Act, under modern awards or orders made under this
28
Act, the Fair Work Act or any other Act or under enterprise
29
agreements;
30
(b) the power to give directions as to the exercise of any rights,
31
privileges or capacities that have been suspended;
32
(c) the power to make provision restricting the use of the funds
33
or property of the organisation or a part of the organisation,
34
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and for the control of the funds or property for the purpose of
1
ensuring observance of the restrictions.
2
(2) An order made in the exercise of a power under this section has
3
effect despite anything in the rules of the organisation or a part of
4
the organisation.
5
(3) An order made in the exercise of a power under this section:
6
(a) may be revoked by the Court, by order, on application by a
7
party to the proceedings; and
8
(b) unless sooner revoked, ceases to be in force on the day
9
specified in the order.
10
Reconsideration of application
11
(4) If the Court exercises a power under this section in relation to an
12
application under section 28 or 28A (or both), the Court must
13
reconsider the application:
14
(a) by the time the orders made under this section cease to be in
15
force; or
16
(b) on application by a party to the proceeding before that time,
17
if the Court considers that it is just to reconsider the
18
application under section 28 or 28A before that time having
19
regard to any evidence given in relation to observance or
20
non-observance of any order and any other relevant
21
circumstances.
22
Division 6--Cancellation of registration of an organisation
23
by the FWC
24
5 At the end of section 30
25
Add:
26
Note:
See Division 7 for the effect of cancellation.
27
6 Before section 31
28
Insert:
29
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Division 7--Effect of cancellation of registration
1
7 Paragraph 158(10)(a)
2
After "under", insert "section 28P or".
3
8 Section 343
4
Before "The", insert "(1)".
5
9 At the end of section 343
6
Add:
7
(2) Despite subsection (1), the Minister's functions or powers under
8
the following provisions cannot be delegated:
9
(a) section 28;
10
(b) section 28A;
11
(c) section 222;
12
(d) subsection 323(1).
13
10 Paragraph 343B(2)(a)
14
Repeal the paragraph, substitute:
15
(a) section 28 or 28A;
16
11 Application of amendments
17
(1)
In finding whether a ground set out in an application made under
18
section 28 or 28A of the Fair Work (Registered Organisations) Act
19
2009 (the Act) as amended by this Schedule is established, the Federal
20
Court may only have regard to the following:
21
(a) for the ground set out in section 28C--conduct engaged in
22
after commencement;
23
(b) for the ground set out in section 28D or 28E--a finding made
24
in relation to conduct engaged in after commencement;
25
(c) for the ground set out in section 28F--findings made in
26
relation to conduct engaged in after commencement;
27
(d) for the ground set out in section 28G--failures to comply
28
with orders or injunctions made after commencement;
29
(e) for the ground set out in section 28H--industrial action
30
organised or engaged in after commencement.
31
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25
(2)
However, the Court may have regard to matters occurring before or
1
after commencement for the purposes of subparagraphs 28K(1)(b)(iv)
2
and 28M(2)(b)(ii), and paragraph 28M(3)(b), of the Act as amended by
3
this Schedule.
4
(3)
Sections 28 and 29 of the Act, as in force immediately before
5
commencement, continue in effect, after commencement and despite the
6
amendments made by this Schedule, in relation to:
7
(a) conduct engaged in before commencement; and
8
(b) conduct engaged in before or after commencement in relation
9
to an order or injunction made before commencement.
10
(4)
For the purposes of the operation of sections 28 and 29 of the Act as
11
continued in effect by subitem (3), the amendments made by this
12
Schedule are taken not to have been made.
13
(5)
In this item:
14
commencement means the start of the day this item commences.
15
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Fair Work (Registered Organisations) Amendment (Ensuring Integrity)
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Schedule 3--Administration of dysfunctional
1
organisations etc.
2
3
Fair Work (Registered Organisations) Act 2009
4
1 Section 6
5
Insert:
6
administrator for an organisation or a part of an organisation:
7
(a) means a person appointed as administrator for the
8
organisation or part in accordance with a scheme approved
9
under subsection 323A(1); and
10
(b) includes any interim administrator appointed for the time
11
being by the Federal Court.
12
books includes:
13
(a) a register; and
14
(b) any other record of information; and
15
(c) financial reports or financial records, however compiled,
16
recorded or stored; and
17
(d) a document.
18
financial misconduct includes the following:
19
(a) a contravention of a provision of Division 2 of Part 2 of
20
Chapter 9 (general duties in relation to the financial
21
management of organisations);
22
(b) misuse of funds;
23
(c) false accounting;
24
(d) failure to fulfil duties in relation to financial reporting.
25
part of an organisation includes:
26
(a) a branch or part of a branch of the organisation; and
27
(b) a collective body of the organisation or a branch of the
28
organisation.
29
2 Subsection 280(6)
30
Repeal the subsection.
31
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27
3 Section 317
1
After:
2
Part 2 contains provisions validating certain invalidities in relation
3
to registered organisations.
4
insert:
5
Part 2A provides for applications to be made to the Federal Court
6
for a declaration in relation to an organisation or any part of it that
7
is not functioning effectively. If a declaration is made, the Federal
8
Court may approve a scheme to resolve the matters to which
9
declaration relates, including a scheme for the administration of the
10
organisation or a part of it.
11
4 Section 323
12
Repeal the section, substitute:
13
Part 2A--Dysfunctional organisations etc.
14
15
323 Declaration of dysfunction, misconduct etc. or vacancy in offices
16
(1) Any of the following may apply to the Federal Court for any one or
17
more of the declarations set out in subsection (3), if the applicant
18
considers that circumstances mentioned in a paragraph of that
19
subsection exist in relation to an organisation:
20
(a) the Commissioner;
21
(b) the Minister;
22
(c) the organisation;
23
(d) a member of the organisation;
24
(e) any other person having a sufficient interest in the
25
organisation.
26
(2) The Federal Court may make the declaration if the Court is
27
satisfied that the circumstances exist in relation to the organisation.
28
(3) The declarations are the following:
29
Schedule 3 Administration of dysfunctional organisations etc.
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Fair Work (Registered Organisations) Amendment (Ensuring Integrity)
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No. , 2017
(a) that an organisation or a part of an organisation has ceased to
1
exist or function effectively and there are no effective means
2
under the rules of the organisation or a part of the
3
organisation by which the organisation or part can be
4
reconstituted or enabled to function effectively;
5
(b) that one or more officers of an organisation or a part of an
6
organisation have engaged in financial misconduct in relation
7
to carrying out their functions or in relation to the
8
organisation or a part of the organisation;
9
(c) that a substantial number of the officers of an organisation or
10
a part of an organisation have, in affairs of the organisation
11
or part, acted in their own interests rather than in the interests
12
of the members of the organisation or part as a whole;
13
(d) that affairs of an organisation or a part of an organisation are
14
being conducted in a manner that is:
15
(i) oppressive or unfairly prejudicial to, or unfairly
16
discriminatory against, a member or a class of members;
17
or
18
(ii) contrary to the interests of the members of the
19
organisation or part as a whole;
20
(e) that an office or position in an organisation or a part of an
21
organisation is vacant and there is no effective means under
22
the rules of the organisation or part to fill the office or
23
position.
24
(4) For the purposes of this section and without limiting the
25
circumstances in which an organisation or a part of an organisation
26
ceases to function effectively, an organisation or a part of an
27
organisation is taken to have ceased to function effectively if the
28
Court is satisfied that officers of the organisation or part have:
29
(a) on multiple occasions, contravened designated laws; or
30
(b) misappropriated funds of the organisation or part; or
31
(c) otherwise repeatedly failed to fulfil their duties as officers of
32
the organisation or part of the organisation.
33
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29
323A Federal Court may make certain orders if declaration made
1
under section 323
2
(1) If the Federal Court makes a declaration under section 323 in
3
relation to an organisation or a part of an organisation, the Court
4
may, by order, approve a scheme for the taking of action by the
5
organisation or a part of the organisation, or by an officer or
6
officers of the organisation or a part of the organisation, to resolve
7
the circumstances set out in the declaration.
8
(2) Without limiting subsection (1), a scheme may provide for any of
9
the following:
10
(a) the appointment of an administrator for the organisation or
11
part;
12
(b) reports to be given to the Court under the scheme;
13
(c) when the scheme begins and ends;
14
(d) when elections (if any) are to be held under the scheme.
15
(3) The Court must not make an order under this section unless it is
16
satisfied that the order would not do substantial injustice to the
17
organisation or any member of the organisation.
18
(4) If a scheme provides for its own end, the Court may only approve
19
the scheme if the scheme provides that it does not end unless the
20
Court is satisfied that circumstances set out in the declaration have
21
been resolved or no longer exist.
22
(5) If a scheme provides for an election for an office, the Court may
23
only approve the scheme if the scheme provides for the election to
24
be conducted by the AEC and in accordance with Chapter 7.
25
(6) If the Court approves a scheme under subsection (1), the Court
26
may give any ancillary or consequential directions it considers
27
appropriate, including but not limited to directions about the
28
matters mentioned in subsection (2).
29
323B Federal Court order has effect despite other provisions
30
An order or direction of the Federal Court under section 323A, and
31
any action taken by an administrator or other person in accordance
32
with the order or direction, has effect despite anything in this Act,
33
the rules of the organisation or the part of the organisation to which
34
Schedule 3 Administration of dysfunctional organisations etc.
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Fair Work (Registered Organisations) Amendment (Ensuring Integrity)
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the order or direction relates and any previous order, direction or
1
exemption made under this Act.
2
323C Elections while under administration
3
Despite anything in the rules of an organisation or a part of an
4
organisation, or in any previous order, direction or exemption
5
made under this Act, any election for an office held while the
6
organisation or any part of it is under administration must be
7
conducted by the AEC.
8
323D Administrators--conflict of interest
9
Within 21 days after an administrator:
10
(a) acquires any interest, pecuniary or otherwise, that could
11
conflict with the proper performance of the administrator's
12
duties; or
13
(b) becomes aware that any interest, pecuniary or otherwise, that
14
the administrator has, or is likely to acquire, could conflict
15
with the proper performance of his or her duties;
16
the administrator must notify the Federal Court, in writing, of that
17
interest.
18
323E Administrators--termination of appointment
19
The Federal Court may terminate the appointment of an
20
administrator at any time, including (but not limited to) if the
21
administrator has notified the Court of an interest under
22
section 323D.
23
323F Functions of administrator
24
(1) While an organisation or a part of an organisation is under
25
administration, the administrator:
26
(a) has control of the property and affairs of the organisation or
27
part; and
28
(b) may manage that property and those affairs; and
29
(c) may dispose of any of that property; and
30
Administration of dysfunctional organisations etc. Schedule 3
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Fair Work (Registered Organisations) Amendment (Ensuring Integrity)
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31
(d) may perform any function, and exercise any power, that the
1
organisation or part, or any officers, could perform or
2
exercise if it were not under administration.
3
(2) Nothing in subsection (1) limits the generality of anything else in
4
it.
5
323G Officers etc. to help administrator
6
(1) This section applies in relation to the following persons:
7
(a) an officer or employee of an organisation under
8
administration;
9
(b) if a part of an organisation is under administration:
10
(i) an officer or employee of the organisation; and
11
(ii) an officer or employee of the part of the organisation;
12
(c) a person who, because of or following the appointment of an
13
administrator for an organisation or part of an organisation,
14
ceased to be an officer of the organisation or part.
15
(2) The person must:
16
(a) attend on the administrator at such times; and
17
(b) give the administrator such information about the
18
organisation's or the part of the organisation's business,
19
property, affairs and financial circumstances;
20
as the administrator reasonably requires.
21
(3) A person commits an offence of strict liability if the person does
22
not comply with subsection (2).
23
Penalty: 50 penalty units or imprisonment for 12 months, or both.
24
(4) Subsection (3) does not apply if the person has a reasonable
25
excuse.
26
(5) It is a reasonable excuse for a person to refuse or fail to give
27
information on the ground that to do so might tend to incriminate
28
the person or expose the person to a penalty.
29
(6) This section does not affect the law relating to legal professional
30
privilege.
31
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Fair Work (Registered Organisations) Amendment (Ensuring Integrity)
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323H Rights to organisation's books
1
(1) A person is not entitled, as against the administrator for an
2
organisation or a part of an organisation:
3
(a) to retain possession of books of the organisation or the part;
4
or
5
(b) to claim or enforce a lien on such books;
6
but such a lien is not otherwise prejudiced.
7
(2) Paragraph (1)(a) does not apply in relation to books of which a
8
secured creditor is entitled to possession otherwise than because of
9
a lien, but the administrator is entitled to inspect, and make copies
10
of, such books at any reasonable time.
11
(3) The administrator may give a person a written notice requiring the
12
person to deliver to the administrator, as specified in the notice,
13
specified books that are in the person's possession.
14
(4) A notice under subsection (3) must specify a period of at least 3
15
business days as the period within which the notice must be
16
complied with.
17
(5) A person commits an offence of strict liability if the person does
18
not comply with a notice under subsection (3).
19
Penalty: 50 penalty units or imprisonment for 12 months, or both.
20
(6) Subsection (5) does not apply to the extent that the person is
21
entitled, as against the organisation or part and the administrator, to
22
retain possession of the books.
23
Note:
A defendant bears an evidential burden in relation to the matter in
24
subsection (6) (see subsection 13.3(3) of the Criminal Code).
25
323J Remuneration determinations
26
(1) The Federal Court may make any orders it considers appropriate to
27
provide for and in relation to remuneration which the administrator
28
for an organisation or a part of an organisation is entitled to receive
29
for necessary work properly performed by the administrator in
30
relation to the administration.
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33
(2) If the order has the effect that the administrator is entitled to
1
receive remuneration worked out wholly or partly on a time-cost
2
basis, the order must include a cap on the amount of remuneration
3
worked out on a time-cost basis that the administrator is entitled to
4
receive.
5
(3) In making an order under this section, the Court must have regard
6
to whether the remuneration is reasonable, taking into account:
7
(a) the period during which the work is likely to be performed by
8
the administrator; and
9
(b) the complexity (or otherwise) of the work likely to be
10
performed by the administrator; and
11
(c) if the remuneration is worked out wholly or partly on a
12
time-cost basis--the time likely to be properly taken by the
13
administrator in performing the work; and
14
(d) any other matters the Court considers relevant.
15
323K Administrator not to be sued
16
An administrator, or a person acting under the direction of an
17
administrator, is not liable to an action or other proceeding for or in
18
relation to an act done, or omitted to be done, in good faith in the
19
performance or exercise, or the purported performance or exercise,
20
of any function or power of the administrator as an administrator
21
under this Part.
22
5 Paragraph 324(2)(p)
23
Omit "of Chapter 11", substitute "or 2A of this Chapter".
24
6 After paragraph 343B(2)(h)
25
Insert:
26
(ha) subsection 323(1);
27
Schedule 4 Public interest test for amalgamations
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Fair Work (Registered Organisations) Amendment (Ensuring Integrity)
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Schedule 4--Public interest test for
1
amalgamations
2
3
Fair Work (Registered Organisations) Act 2009
4
1 Section 6
5
Insert:
6
compliance record event has the meaning given by section 72E.
7
2 Section 34
8
Omit:
9
The 2 main elements of the amalgamation procedure are an
10
application to the FWC seeking approval for a ballot to be held on
11
the question of amalgamation, and the holding of a ballot
12
conducted by the Australian Electoral Commission.
13
substitute:
14
An amalgamation involves an application to the FWC seeking
15
approval for a ballot to be held on the question of amalgamation,
16
and the holding of a ballot conducted by the Australian Electoral
17
Commission.
18
Before an amalgamation can take effect, the FWC must decide
19
whether the amalgamation is in the public interest. The
20
amalgamation does not take effect if the FWC decides that it is not
21
in the public interest.
22
3 Section 34
23
After "amalgamated organisation)", insert ", if the amalgamation takes
24
effect".
25
4 Section 37
26
Repeal the section, substitute:
27
Public interest test for amalgamations Schedule 4
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37 Exercise of the FWC's powers under this Part
1
(1) The powers of the FWC under this Part, other than under
2
Subdivision A of Division 6 (public interest test for
3
amalgamations), are exercisable only by the President, a Vice
4
President or a Deputy President.
5
(2) The powers of the FWC under Subdivision A of Division 6 are
6
exercisable only by a Full Bench.
7
5 Subsection 56(1)
8
Omit "Objection", substitute "Except as provided by Subdivision A of
9
Division 6, objection".
10
6 At the end of section 67
11
Add:
12
(4) Subsection (2) does not authorise the FWC to dispense with
13
deciding under section 72A whether the amalgamation is in the
14
public interest.
15
7 Before section 73
16
Insert:
17
Subdivision A--Public interest test for amalgamations
18
72A Decision whether amalgamation is in public interest
19
(1) Before fixing an amalgamation day under section 73 for a proposed
20
amalgamation, the FWC must decide whether the amalgamation is
21
in the public interest.
22
Note:
An amalgamation does not take effect if the FWC decides it is not in
23
the public interest (see section 72F).
24
(2) The FWC may make the decision at any time after an application
25
under section 43 or 44 is lodged with the FWC in relation to the
26
amalgamation.
27
72B Hearings about public interest
28
(1) The FWC must:
29
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(a) fix a time and place for hearing submissions in relation to the
1
matters mentioned in subsection 72D(1) (record of
2
compliance with the law); and
3
(b) promptly notify the existing organisations concerned in the
4
amalgamation of the time and place of the hearing; and
5
(c) promptly publish notice of the time and place of the hearing
6
on its website and in any other way the FWC considers
7
appropriate.
8
(2) If the matter is not concluded under subsection 72D(2), the FWC
9
must:
10
(a) fix a time and place for hearing submissions in relation to
11
whether the amalgamation is otherwise in the public interest;
12
and
13
(b) promptly notify the existing organisations of the time and
14
place of the hearing; and
15
(c) promptly publish notice of the time and place of the hearing
16
on its website and in any other way the FWC considers
17
appropriate.
18
72C Persons who may make submissions about public interest
19
(1) Submissions in relation to the matters mentioned in
20
subsection 72D(1) (record of compliance with the law), and
21
whether the amalgamation is otherwise in the public interest, may
22
be made by any of the following persons:
23
(a) the existing organisations;
24
(b) any other organisation that represents the industrial interests
25
of employers or employees in the industry or industries
26
concerned or that may otherwise be affected by the
27
amalgamation;
28
(c) a body other than an organisation that represents the interests
29
of employers or employees in the industry or industries
30
concerned;
31
(d) the Commissioner;
32
(e) the Minister;
33
(f) a Minister of a referring State (within the meaning of the Fair
34
Work Act), or of a Territory, who has responsibility for
35
workplace relations matters in the State or Territory;
36
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(g) any other person with a sufficient interest in the
1
amalgamation.
2
(2) The FWC must:
3
(a) in considering the matters mentioned in subsection 72D(1)--
4
have regard to any submissions made by persons mentioned
5
in subsection (1) of this section in relation to those matters;
6
and
7
(b) if the matter is not concluded under subsection 72D(2)--have
8
regard to any other submissions made by persons mentioned
9
in subsection (1) of this section.
10
72D Matters to which the FWC must have regard
11
Record of compliance with the law
12
(1) In deciding whether the amalgamation is in the public interest, the
13
FWC must have regard to any compliance record events that have
14
occurred for each of the existing organisations.
15
(2) If, having regard to the incidence and age of compliance record
16
events for an existing organisation, the FWC considers that the
17
organisation has a record of not complying with the law, the FWC
18
must decide under section 72A that the amalgamation is not in the
19
public interest.
20
Other matters of public interest
21
(3) If the matter is not concluded under subsection (2), the FWC must,
22
in deciding whether the amalgamation is otherwise in the public
23
interest, have regard to the impact the amalgamation is likely to
24
have on:
25
(a) employees in the industry or industries concerned; and
26
(b) employers in the industry or industries concerned.
27
(4) The FWC may have regard to any other matters it considers
28
relevant.
29
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72E Compliance record events
1
Involving organisation or members
2
(1) A compliance record event occurs for an organisation if:
3
(a) a designated finding or a wider criminal finding is made
4
against the organisation; or
5
(b) the organisation is found to be in contempt of court in
6
relation to an order or injunction made under any law of the
7
Commonwealth or a State or Territory; or
8
(c) the organisation, or a substantial number of the members of:
9
(i) the organisation; or
10
(ii) a part of the organisation; or
11
(iii) a class of members of the organisation;
12
organises or engages in industrial action covered by
13
subsection 28H(2).
14
Involving officers
15
(2) A compliance record event also occurs for an organisation if:
16
(a) a designated finding is made against a person, if the person
17
was an officer of the organisation at the time of the conduct
18
to which the finding relates; or
19
(b) a wider criminal finding is made against a person, if the
20
person:
21
(i) was an officer of the organisation at the time of the
22
conduct to which the finding relates; and
23
(ii) engaged in the conduct in the course of (or purportedly
24
in the course of) performing functions in relation to the
25
organisation; or
26
(c) a person is found to be in contempt of court in relation to an
27
order or injunction made under any law of the
28
Commonwealth or a State or Territory, if the person:
29
(i) was an officer of the organisation at the time of the
30
conduct to which the finding relates; and
31
(ii) engaged in the conduct in the course of (or purportedly
32
in the course of) performing functions in relation to the
33
organisation; or
34
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(d) a person becomes disqualified from holding office in an
1
organisation while he or she is an officer in the organisation.
2
72F Amalgamation not in public interest does not take effect
3
(1) If the FWC decides under section 72A that the amalgamation is not
4
in the public interest:
5
(a) the FWC must not fix an amalgamation day for the
6
amalgamation; and
7
(b) the amalgamation does not take effect.
8
(2) If the FWC decides under section 72A that the amalgamation is not
9
in the public interest at any time before the FWC approves the
10
submission of the amalgamation to ballot, then, despite any other
11
provision of this Part, the FWC must refuse to approve the
12
submission of the amalgamation to ballot.
13
Subdivision B--Amalgamation taking effect
14
8 Subsection 73(1)
15
After "takes effect", insert "(if at all)".
16
9 Subsection 73(2)
17
After "If", insert "the FWC has decided under section 72A that the
18
amalgamation is in the public interest and".
19
10 Paragraph 73(2)(c)
20
Repeal the paragraph, substitute:
21
(c) there are no proceedings of the kind mentioned in
22
subsection (2A) pending against any of the existing
23
organisations concerned in the amalgamation; and
24
11 At the end of subsection 73(2)
25
Add:
26
Note:
An amalgamation does not take effect if the FWC decides it is not in
27
the public interest (see section 72F).
28
12 After subsection 73(2)
29
Insert:
30
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(2A) For the purposes of paragraph (2)(c), the kind of proceedings are:
1
(a) criminal proceedings in relation to:
2
(i) a contravention of this Act, the Fair Work Act or any
3
other law of the Commonwealth; or
4
(ii) a breach of an order made under this Act, the Fair Work
5
Act or any other law of the Commonwealth; and
6
(b) civil proceedings for a contravention of a provision
7
mentioned in a subparagraph of paragraph (b) of the
8
definition of designated finding in subsection 9C(1).
9
13 Application of amendments
10
(1)
Without limiting the application of the amendments made by this
11
Schedule, those amendments apply in relation to a proposed
12
amalgamation if, on the day this item commences, an amalgamation day
13
for the amalgamation has not been fixed under section 73 of the Fair
14
Work (Registered Organisations) Act 2009.
15
(2)
To avoid doubt, subitem (1) applies regardless of whether an
16
application was lodged under section 43 or 44 of that Act in relation to
17
the amalgamation before this item commences.
18
(3)
A reference in the Fair Work (Registered Organisations) Act 2009 to a
19
compliance record event includes an event that occurred before this
20
item commences.
21
Minor and technical amendments Schedule 5
No. , 2017
Fair Work (Registered Organisations) Amendment (Ensuring Integrity)
Bill 2017
41
Schedule 5--Minor and technical amendments
1
2
Fair Work (Registered Organisations) Act 2009
3
1 Section 6 (definition of Australian Accounting Standards)
4
Repeal the definition, substitute:
5
Australian Accounting Standards means the accounting standards
6
issued by the Australian Accounting Standards Board, as in force,
7
or applicable, from time to time, as modified by regulations made
8
for the purpose of this definition.
9
2 Section 6 (definition of Australian Auditing Standards)
10
Repeal the definition, substitute:
11
Australian Auditing Standards means the auditing and assurance
12
standards issued by the Australian Auditing and Assurance
13
Standards Board as in force, or applicable, from time to time.
14
3 Section 6 (paragraph (d) of the definition of authorised
15
official)
16
Repeal the paragraph, substitute:
17
(d) the Australian Building and Construction Commissioner;
18
4 Subdivision BB of Division 4 of Part 2 of Chapter 5
19
(heading)
20
Repeal the heading.
21
5 Subsection 329FA(1) (note)
22
Repeal the note, substitute:
23
Note:
Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the
24
Legislation Act 2003 do not apply to the direction (see regulations
25
made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that
26
Act).
27
6 Subparagraph 337A(1)(b)(iii)
28
Omit "referred to in subsection 15(1) of the Building and Construction
29
Industry (Improving Productivity) Act 2016".
30
Schedule 5 Minor and technical amendments
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Fair Work (Registered Organisations) Amendment (Ensuring Integrity)
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No. , 2017
7 Subparagraph 337A(1)(b)(iiia)
1
Omit "referred to in subsection 15(2) of the Building and Construction
2
Industry (Improving Productivity) Act 2016".
3
8 Paragraph 337BB(4)(d)
4
Repeal the paragraph, substitute:
5
(d) the Australian Building and Construction Commissioner;
6
9 Subsection 337C(1)
7
Omit "337A(4)", substitute "337A(3)".
8
10 Paragraph 343A(2)(b)
9
Omit "154C(1),".
10
11 Paragraph 343A(3)(aa)
11
Repeal the paragraph.
12
12 Subsection 343B(2A)
13
Repeal the subsection, substitute:
14
(2A) Despite subsection (1), the Commissioner's functions or powers
15
under the following provisions can only be delegated to a member
16
of the staff assisting the Commissioner who is an SES employee or
17
an acting SES employee:
18
(a) Subdivision A of Division 4 of Part 3 of Chapter 8
19
(registration of auditors);
20
(b) Division 4 of Part 2A of Chapter 9 (training in relation to
21
financial duties).
22