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This is a Bill, not an Act. For current law, see the Acts databases.
2019
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Fair Work (Registered Organisations)
Amendment (Ensuring Integrity No. 2)
Bill 2019
No. , 2019
(Industrial Relations)
A Bill for an Act to amend the
Fair Work
(Registered Organisations) Act 2009
, and for related
purposes
No. , 2019
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
4
Review of this Act ............................................................................. 2
Schedule 1--Disqualification from office
4
Fair Work (Registered Organisations) Act 2009
4
Schedule 2--Cancellation of registration and alternative orders
16
Fair Work (Registered Organisations) Act 2009
16
Schedule 3--Administration of dysfunctional organisations etc.
29
Fair Work (Registered Organisations) Act 2009
29
Schedule 4--Public interest test for amalgamations
37
Fair Work (Registered Organisations) Act 2009
37
Schedule 5--Minor and technical amendments
45
Fair Work (Registered Organisations) Act 2009
45
Schedule 6--Functions of the Commissioner
47
Fair Work (Registered Organisations) Act 2009
47
No. , 2019
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
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 No. 2) Act 2019.
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
No. 2) Bill 2019
No. , 2019
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
4 Review of this Act
13
(1) The Minister must cause an independent review to be conducted of
14
the operation of the amendments made by this Act to the
Fair
15
Work (Registered Organisations) Act 2009
(the
Registered
16
Organisations Act
).
17
(2) The review must be commenced as soon as practicable after the
18
end of 2 years after this Act commences.
19
(3) Without limiting the matters the review may examine, the review
20
must examine the following:
21
(a) the effectiveness of the amendments to the Registered
22
Organisations Act made by this Act;
23
(b) whether there is a need for further amendments to the
24
Registered Organisations Act relating to the administration of
25
dysfunctional organisations and a public interest test for
26
amalgamations of organisations;
27
No. , 2019
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
3
(c) whether the Commissioner has acted as a model litigant in
1
proceedings involving the Commissioner;
2
(d) whether the Commissioner has, in carrying out the
3
Commissioner's functions, focused on matters that relate to
4
systematic patterns of conduct engaged in by organisations or
5
officers of organisations.
6
(4) The Minister must ensure that the persons who conduct the review
7
have the ability to seek independent legal advice in relation to the
8
review.
9
(5) The persons who conduct the review must give the Minister a
10
written report of the review.
11
(6) The Minister must cause a copy of the report to be tabled in each
12
House of the Parliament within 15 sitting days of that House after
13
the report is given to the Minister.
14
(7) An expression used in this section that is also used in the
15
Registered Organisations Act has the same meaning as in that Act.
16
Schedule 1
Disqualification from office
4
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
No. , 2019
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
2 After section 9B
10
Insert:
11
9C Designated findings and designated laws
12
Designated findings
13
(1) A
designated finding
, in relation to a person, is:
14
(a) any conviction against the person for an offence against a
15
designated law; or
16
(b) any order for the person to pay a pecuniary penalty for the
17
contravention of:
18
(i) a civil penalty provision of this Act; or
19
(ii) a civil remedy provision of the Fair Work Act; or
20
(iii) a civil remedy provision of the
Building and
21
Construction Industry (Improving Productivity) Act
22
2016
; or
23
(iv) a WHS civil penalty provision of the
Work Health and
24
Safety Act 2011
; or
25
(v) a provision of a State or Territory OHS law (within the
26
meaning of the Fair Work Act), other than an offence.
27
Designated laws
28
(2) The following are
designated laws
:
29
Disqualification from office
Schedule 1
No. , 2019
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
5
(a) this Act;
1
(b) the Fair Work Act;
2
(c) the
Building and Construction Industry (Improving
3
Productivity) Act 2016
;
4
(d) the
Work Health and Safety Act 2011
;
5
(e) each State or Territory OHS law (within the meaning of the
6
Fair Work Act).
7
9D Findings against part of an organisation
8
A finding made against a part of an organisation is taken for the
9
purposes of this Act to have been made against the organisation.
10
3 Section 181
11
After "Chapter 3).", insert "This Chapter also deals with orders
12
disqualifying a person from holding office in organisations.".
13
4 Section 181
14
Omit:
15
Part 4 sets out the circumstances in which people are disqualified
16
from holding, or being elected to hold, office in organisations.
17
substitute:
18
Part 4 sets out circumstances in which a person becomes ineligible
19
to be elected to, or to hold, office in an organisation. It also
20
provides for applications to be made to the Federal Court for orders
21
disqualifying a person from holding office in an organisation. It is
22
an offence for a person to be a candidate for election to, or hold or
23
act as if they hold, office in an organisation in these circumstances.
24
5 Division 1 of Part 4 of Chapter 7 (heading)
25
Repeal the heading, substitute:
26
Schedule 1
Disqualification from office
6
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
No. , 2019
Division 1--Preliminary
1
6 At the end of section 210
2
Add:
3
This Part also allows applications to be made for a Federal Court
4
order disqualifying a person from holding office in an organisation
5
(see Division 3).
6
It is an offence for a person who is disqualified from holding office
7
in an organisation to be a candidate for, or hold or act as if they
8
hold, office in an organisation (see Division 4).
9
7 At the end of Division 1 of Part 4 of Chapter 7
10
Add:
11
210A Application of this Part to branches
12
(1) In this Part:
13
(a) a reference to an office in, or holding an office in, an
14
organisation includes an office in, or holding an office in, a
15
branch of an organisation; and
16
(b) a reference to an officer of an organisation includes an officer
17
of a branch of an organisation.
18
(2) This section does not limit subsection 9(2).
19
8 After paragraph 212(a)
20
Insert:
21
(aa) an offence under a law of the Commonwealth, a State or
22
Territory punishable on conviction by imprisonment for life
23
or a period of 5 years or more; or
24
9 Subsection 215(1)
25
Omit "an election, or to be elected or appointed, to an office", substitute
26
"election to, or to hold, an office".
27
Disqualification from office
Schedule 1
No. , 2019
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
7
10 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
11 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 may apply to the Federal Court for an order
10
disqualifying a person from holding office in an organisation, on
11
the grounds set out in this Division.
12
222 Disqualification orders
13
(1) The Commissioner may apply to the Federal Court for an order
14
under this section if the Commissioner considers that any of the
15
grounds for disqualification set out in section 223 apply in relation
16
to a person.
17
Note:
A person who reasonably believes that a ground applies may refer the
18
matter to the Commissioner (see section 223A), but the Commissioner
19
does not need a referral to make an application under this section.
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:
23
(a) the Court is satisfied that a ground for disqualification set out
24
in the application applies in relation to the person; and
25
(b) the Commissioner satisfies the Court that it would not be
26
unjust to disqualify the 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
Schedule 1
Disqualification from office
8
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
No. , 2019
(2A) The Court must not make the order unless it is satisfied that,
1
having regard to the gravity of the matters constituting the ground,
2
disqualification would not be unjust.
3
(3) If the Court makes an order under subsection (2), the person is also
4
disqualified from holding office in a branch of an organisation for
5
the period.
6
223 Grounds for disqualification
7
Designated finding or contempt in relation to designated law
8
(1) A ground for disqualification applies in relation to a person if:
9
(a) a designated finding within the meaning of
10
paragraph 9C(1)(a) (criminal) is made against the person
11
(other than a designated finding that relates to an offence
12
covered by subsection (4)); or
13
(b) both:
14
(i) one or more designated findings within the meaning of
15
paragraph 9C(1)(b) (civil) have been made against the
16
person within the last 10 years (other than a designated
17
finding that relates to a contravention covered by
18
subsection (4)); and
19
(ii) the maximum penalty, or combined total of the
20
maximum penalties, for the contravention or
21
contraventions to which the designated finding or
22
findings relate is, or is equivalent to, at least 180 penalty
23
units (see section 4AA of the
Crimes Act 1914
for the
24
value of a penalty unit); or
25
(c) the person is found to be in contempt of court in relation to
26
an order or injunction made under a designated law.
27
Contempt in relation to law other than designated law
28
(2) A ground for disqualification applies in relation to a person if:
29
(a) the person is found to be in contempt of court in relation to
30
an order or injunction made under any law of the
31
Commonwealth or a State or Territory (other than a
32
designated law); and
33
Disqualification from office
Schedule 1
No. , 2019
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
9
(b) the person engaged in the conduct to which the finding
1
relates in the course of (or purportedly in the course of)
2
performing functions in relation to any organisation.
3
Multiple failures to prevent contraventions etc. by organisation
4
(3) A ground for disqualification applies in relation to a person if:
5
(a) more than one of the following is made against any
6
organisation in relation to conduct engaged in while the
7
person is an officer of the organisation:
8
(i) a designated finding within the meaning of
9
paragraph 9C(1)(a) (criminal);
10
(ii) a designated finding within the meaning of
11
paragraph 9C(1)(b) (civil);
12
(iii) a finding that the organisation is in contempt of court in
13
relation to an order or injunction made under a
14
designated law; and
15
(b) at least one of them is covered by subparagraph (a)(i) or (iii);
16
and
17
(c) the person failed to take reasonable steps to prevent the
18
conduct.
19
(3A) A ground for disqualification applies in relation to a person if:
20
(a) 2 or more designated findings within the meaning of
21
paragraph 9C(1)(b) (civil) have been made against any
22
organisation within the last 10 years in relation to conduct
23
engaged in while the person is an officer of the organisation;
24
and
25
(b) the combined total of the maximum penalties for the
26
contraventions to which the designated findings relate is, or
27
is equivalent to, at least 900 penalty units (see section 4AA
28
of the
Crimes Act 1914
for the value of a penalty unit); and
29
(c) the person failed to take reasonable steps to prevent the
30
conduct.
31
Breach of directors' and officers' duties
32
(4) A ground for disqualification applies in relation to a person if:
33
(aa) a designated finding is made against the person and it relates
34
to an offence against, or a contravention of, a provision of
35
Schedule 1
Disqualification from office
10
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
No. , 2019
Division 2 of Part 2 of Chapter 9 (general duties in relation to
1
the financial management of organisations); or
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) any conviction against the person for an offence against a law
26
of the Commonwealth or a State or Territory:
27
(i) involving the intentional use of violence towards
28
another person, the intentional causing of death or
29
injury to another person or the intentional damaging or
30
destruction of property; or
31
(ii) involving fraud, dishonesty, misrepresentation,
32
concealment of material facts or a breach of duty; or
33
(iii) that is punishable by imprisonment for 2 years or more;
34
(e) in any civil proceeding against the person, an order is made
35
that relates to conduct by the person that involved fraud,
36
Disqualification from office
Schedule 1
No. , 2019
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
11
dishonesty, misrepresentation, concealment of material facts
1
or a breach of duty.
2
223A Referral to Commissioner
3
(1) If a person (the
referrer
) reasonably believes that a ground set out
4
in section 223 applies in relation to a person, the referrer may refer
5
the matter to the Commissioner.
6
(2) The referral must:
7
(a) be in writing; and
8
(b) identify and provide contact details for the referrer; and
9
(c) set out the basis for the reasonable belief mentioned in
10
subsection (1).
11
(3) The Commissioner may, but is not required to, take action in
12
relation to the referral.
13
Note:
If the Commissioner considers that a ground set out in section 223
14
applies in relation to a person, the Commissioner may apply for an
15
order under section 222 (disqualification orders).
16
Division 4--Offences in relation to standing for or holding
17
office etc. while disqualified
18
224 Simplified outline of this Division
19
A person who is disqualified from holding office in an organisation
20
may commit an offence if the person is a candidate for, or holds or
21
acts as if the person holds, office in an organisation.
22
225 Definition of
disqualified
from holding office in an organisation
23
A person is
disqualified from holding office in an organisation
if
24
the person is:
25
(a) not eligible to be a candidate for election to, or to hold, an
26
office in an organisation under subsection 215(1); or
27
(b) disqualified from holding office in an organisation under an
28
order made under section 28M or 222.
29
Schedule 1
Disqualification from office
12
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
No. , 2019
Note:
The person is also disqualified from holding office in a branch of an
1
organisation (see subsections 9(2), 28M(2) and 222(3)).
2
226 Offences
3
(1) A person commits an offence if:
4
(a) the person is a candidate for election to an office in an
5
organisation; and
6
(b) the person is disqualified from holding office in an
7
organisation.
8
Penalty: 100 penalty units or imprisonment for 2 years, or both.
9
(2) A person commits an offence if:
10
(a) the person is an officer of an organisation; and
11
(b) the person is disqualified from holding office in an
12
organisation; and
13
(c) if the person is disqualified from holding office in an
14
organisation under subsection 215(1) and was holding an
15
office in the organisation at the time of the conviction
16
referred to in that subsection--the person has ceased to hold
17
that office under subsection 215(2) or (3), 216(3) or 217(3).
18
Note:
Paragraph (2)(c) has the effect that a person who is holding office
19
at the time the person is convicted of a prescribed offence does
20
not commit an offence during the period the person is allowed to
21
continue holding the office in accordance with sections 215, 216
22
and 217.
23
Penalty: 100 penalty units or imprisonment for 2 years, or both.
24
(3) A person commits an offence if:
25
(a) the person is disqualified from holding office in an
26
organisation; and
27
(b) the person:
28
(i) exercises the capacity to significantly affect the
29
financial standing or other affairs of an organisation or a
30
part of an organisation; or
31
(ii) gives directions (not including advice given by the
32
person in the proper performance of functions that relate
33
to the person's professional capacity) to the committee
34
Disqualification from office
Schedule 1
No. , 2019
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
13
of management of an organisation or a part of an
1
organisation; and
2
(c) if subparagraph (b)(ii) applies--the person:
3
(i) knows that the committee of management of the
4
organisation or part is accustomed to act in accordance
5
with the person's directions; or
6
(ii) intends that the committee of management will do so.
7
Penalty: 100 penalty units or imprisonment for 2 years, or both.
8
(5) Nothing in this section affects the powers of the Federal Court in
9
relation to punishment of contempt of the Court.
10
12 Subsection 255E(2)
11
Repeal the subsection, substitute:
12
(2) The Commissioner must refuse to grant the application if the
13
person is disqualified from holding office in an organisation.
14
13 Section 307A
15
Repeal the section.
16
14 At the end of subsection 308(1)
17
Add:
18
Note:
Section 222 also allows the Commissioner to apply for a
19
disqualification order in relation to a person's contravention of a civil
20
penalty provision of this Act, among other matters.
21
15 Paragraph 324(2)(g)
22
Omit "or to be elected or appointed", substitute "to, or to hold, an office
23
in an organisation".
24
16 Subsection 325(2)
25
Omit "or to be elected or appointed", substitute "for election to, or to
26
hold, an office in an organisation,".
27
Schedule 1
Disqualification from office
14
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
No. , 2019
17 Application of amendments
1
Definition of prescribed offence
2
(1)
Despite paragraph 213(a) of the
Fair Work (Registered Organisations)
3
Act 2009
(the
Act
), Part 4 of Chapter 7 of the Act does not apply in
4
relation to a conviction for a prescribed offence within the meaning of
5
paragraph 212(aa) of the Act if:
6
(a) the offence is not a prescribed offence within the meaning of
7
another paragraph of section 212 of the Act; and
8
(b) the conviction is in relation to conduct engaged in before
9
commencement.
10
Section 222 disqualification
11
(2)
In satisfying itself as to whether a ground for disqualification set out in
12
section 223 of the Act as amended by this Schedule applies in relation
13
to a person, the Federal Court may only have regard to the following:
14
(a) for the ground mentioned in subsection 223(1) or (2)--a
15
conviction, order or finding made in relation to conduct
16
engaged in:
17
(i) after commencement; and
18
(ii) for paragraph 223(1)(c) or (2)(a)--in relation to an
19
order or injunction made after commencement;
20
and the matters mentioned in paragraph 223(2)(b);
21
(b) for the ground mentioned in subsection 223(3)--a
22
conviction, order or finding made in relation to conduct
23
engaged in:
24
(i) after commencement; and
25
(ii) for subparagraph 223(3)(a)(iii)--in relation to an order
26
or injunction made after commencement;
27
and a failure, after commencement, to take steps as
28
mentioned in the subsection;
29
(ba) for the ground mentioned in subsection 223(3A):
30
(i) a designated finding made in relation to conduct
31
engaged in after commencement; and
32
(ii) a failure, after commencement, to take steps as
33
mentioned in the subsection;
34
Disqualification from office
Schedule 1
No. , 2019
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
15
(c) for the ground mentioned in subsection 223(4)--a finding
1
made in relation to conduct engaged in, or a disqualification
2
in relation to conduct engaged in or an event occurring, after
3
commencement;
4
(d) for the ground mentioned in subsection 223(5):
5
(i) an event occurring after commencement; and
6
(ii) for an event mentioned in paragraph 223(6)(d) or (e)--a
7
conviction or order made in relation to conduct engaged
8
in after commencement.
9
(3)
However, the Court may have regard to matters occurring before or
10
after commencement for the purposes of paragraph 222(2)(b) of the Act
11
as amended by this Schedule.
12
Section 307A disqualification
13
(4)
Section 307A of the Act, as in force immediately before its repeal by
14
this Schedule, continues in effect, after commencement and despite that
15
repeal, in relation to conduct engaged in before commencement.
16
(5)
A reference in section 225 of the Act as amended by this Schedule to an
17
order made under section 222 includes a reference to an order made
18
under section 307A of the Act, including that section as continued in
19
effect by subitem (4).
20
Commencement
21
(6)
In this item:
22
commencement
means the start of the day this item commences.
23
Schedule 2
Cancellation of registration and alternative orders
16
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
No. , 2019
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
4 Sections 28 and 29
19
Repeal the sections, substitute:
20
Division 1--Simplified outline of this Part
21
27A Simplified outline of this Part
22
The Federal Court or the FWC may cancel the registration of an
23
organisation.
24
Cancellation of registration and alternative orders
Schedule 2
No. , 2019
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
17
The grounds for an application to the Federal Court are set out in
1
Division 3.
2
The same grounds may also be the basis for an application to the
3
Federal Court for alternative orders. The alternative orders might
4
be made in situations involving actions of particular officers or
5
members, or where the Court otherwise considers it appropriate.
6
The Commissioner can apply to the Court for cancellation or for
7
alternative orders (or both). If the Commissioner applies for
8
cancellation (or for both cancellation and alternative orders) and
9
the Court finds that the ground for the application is established,
10
the Court may consider making alternative orders instead of
11
cancellation if the Commissioner fails to satisfy the Court that
12
cancellation would not be unjust.
13
The alternative orders include disqualification of officers,
14
alteration of eligibility rules to exclude certain members and
15
suspension of rights and privileges of the organisation and
16
members.
17
The FWC also has the power to cancel the registration of an
18
organisation on certain, mainly technical, grounds, either on
19
application or on its own motion.
20
Division 2--Applications to the Federal Court for orders
21
under this Part
22
28 Application for cancellation of registration
23
The Commissioner may apply to the Federal Court for an order
24
cancelling the registration of an organisation, if the Commissioner
25
considers that any one or more of the grounds in Division 3 exist in
26
relation to the organisation.
27
Note:
A person who reasonably believes that a ground exists may refer the
28
matter to the Commissioner (see section 28HA), but the
29
Commissioner does not need a referral to make an application under
30
this section.
31
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18
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
No. , 2019
28A Application for alternative orders
1
The Commissioner may apply to the Federal Court for any one or
2
more of the orders under Division 5 in relation to an organisation,
3
if the Commissioner considers that any one or more of the grounds
4
in Division 3 exist in relation to the organisation.
5
Note:
A person who reasonably believes that a ground exists may refer the
6
matter to the Commissioner (see section 28HA), but the
7
Commissioner does not need a referral to make an application under
8
this section.
9
28B Multiple applications
10
(1) Nothing in this Part prevents the Commissioner applying under
11
section 28 for cancellation of registration and under section 28A
12
for alternative orders in relation to the same organisation.
13
(2) If the Commissioner does so, the Court must deal with the
14
applications together.
15
Division 3--Grounds for Federal Court orders
16
28C Ground--conduct of affairs of organisation or part of
17
organisation
18
(1) For the purposes of an application under section 28 or 28A, a
19
ground exists in relation to an organisation if:
20
(a) officers of the organisation or a part of the organisation have
21
acted in affairs of the organisation or part in their own
22
interests rather than in the interests of the members of the
23
organisation or part as a whole; or
24
(b) affairs of the organisation or a part of the organisation have
25
been or are being conducted in a manner that is contrary to
26
the interests of the members of the organisation or part as a
27
whole; or
28
(c) affairs of the organisation or a part of the organisation have
29
been or are being conducted in a manner resulting in the
30
organisation or part, or officers or members of the
31
organisation or part, having a record of not complying with
32
designated laws.
33
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19
(2) In working out whether there is a record for the purposes of
1
paragraph (1)(c), the Court must only have regard to the following:
2
(a) any designated findings made against the organisation or part
3
or officers or members of the organisation or part;
4
(b) any findings that the organisation or part, or officers or
5
members of the organisation or part, are in contempt of court
6
in relation to an order or injunction made under a designated
7
law.
8
(3) For the purposes of this section (and without altering meaning
9
elsewhere in this Act), the
affairs
of an organisation or a part of an
10
organisation include:
11
(a) the internal management, governance and proceedings of the
12
organisation or part; and
13
(b) its business model, including the way it is structured and how
14
it operates to achieve its aims; and
15
(c) its transactions and dealings with other persons.
16
(4) In considering how affairs of the organisation or a part of the
17
organisation have been or are being conducted, the Court may have
18
regard to both acts and omissions.
19
(5) A finding of fact in proceedings in any court is admissible as prima
20
facie evidence of the fact for the purposes of an application made
21
on the ground set out in this section.
22
28D Ground--serious offence committed by organisation
23
For the purposes of an application under section 28 or 28A, a
24
ground exists in relation to an organisation if:
25
(a) the organisation is found, in criminal proceedings against the
26
organisation, to have committed an offence against a law of
27
the Commonwealth or a State or Territory; and
28
(b) the offence is punishable on conviction by a penalty for a
29
body corporate of (or equivalent to) at least 1,500 penalty
30
units (see section 4AA of the
Crimes Act 1914
for the value
31
of a penalty unit).
32
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Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
No. , 2019
28E Ground--multiple findings against members
1
For the purposes of an application under section 28 or 28A, a
2
ground exists in relation to an organisation if designated findings
3
have been made against a substantial number of the members of:
4
(a) the organisation; or
5
(b) a part of the organisation; or
6
(c) a class of members of the organisation.
7
28F Ground--non-compliance with orders or injunctions
8
(1) For the purposes of an application under section 28 or 28A, a
9
ground exists in relation to an organisation if:
10
(a) the organisation has failed to comply with an order or
11
injunction made under a designated law; or
12
(b) a substantial number of the members of:
13
(i) the organisation; or
14
(ii) a part of the organisation; or
15
(iii) a class of members of the organisation;
16
have failed to comply with an order or injunction made under
17
a designated law.
18
(2) A finding of fact in proceedings in any court is admissible as prima
19
facie evidence of the fact for the purposes of an application made
20
on the ground set out in this section.
21
28G Ground--obstructive industrial action
22
(1) For the purposes of an application under section 28 or 28A, a
23
ground exists in relation to an organisation if:
24
(a) the organisation; or
25
(b) a substantial number of the members of:
26
(i) the organisation; or
27
(ii) a part of the organisation; or
28
(iii) a class of members of the organisation;
29
have organised or engaged in industrial action covered by
30
subsection (2).
31
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Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
21
(2) This subsection covers industrial action (other than protected
1
industrial action):
2
(a) that prevented, hindered or interfered with:
3
(i) the activities of a federal system employer; or
4
(ii) the provision of any public service by the
5
Commonwealth or a State or Territory or an authority of
6
the Commonwealth or a State or Territory; or
7
(b) that had, or is having or is likely to have, a substantial
8
adverse effect on the safety, health or welfare of the
9
community or a part of the community.
10
(3) A finding of fact in proceedings in any court is admissible as prima
11
facie evidence of the fact for the purposes of an application made
12
on the ground set out in this section.
13
28H Application of grounds in relation to amalgamated
14
organisations
15
(1) For the purposes of considering whether a ground set out in this
16
Division exists in relation to an organisation that is an
17
amalgamated organisation:
18
(a) a reference to the organisation includes any de-registered
19
organisation in relation to the amalgamation; and
20
(b) a reference to an officer of the organisation includes a person
21
who was an officer of any such de-registered organisation;
22
and
23
(c) a reference to conduct of an officer in relation to the
24
organisation includes conduct of the officer as an officer in
25
relation to any such de-registered organisation.
26
(2) An expression defined for the purposes of Part 2 of Chapter 3 has
27
the same meaning in this section as it has in that Part.
28
28HA Referral to Commissioner
29
(1) If a person reasonably believes that a ground in this Division exists
30
in relation to an organisation, the person may refer the matter to the
31
Commissioner.
32
(2) The referral must:
33
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Cancellation of registration and alternative orders
22
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
No. , 2019
(a) be in writing; and
1
(b) identify and provide contact details for the person making the
2
referral; and
3
(c) set out the basis for the reasonable belief mentioned in
4
subsection (1).
5
(3) The Commissioner may, but is not required to, take action in
6
relation to the referral.
7
Note:
If the Commissioner considers that a ground in this Division exists in
8
relation to an organisation, the Commissioner may apply for orders
9
under either or both Divisions 4 and 5 (cancellation of registration and
10
alternative orders) in relation to the organisation.
11
Division 4--Cancellation of registration of an organisation
12
by the Federal Court
13
28J Order cancelling registration of an organisation
14
(1) If an application is made under section 28 for cancellation of the
15
registration of an organisation, the Federal Court may cancel the
16
registration if:
17
(a) the Court finds that a ground set out in the application is
18
established; and
19
(b) the Commissioner satisfies the Court that it would not be
20
unjust to cancel the organisation's registration, having regard
21
to:
22
(i) the nature of the matters constituting the ground; and
23
(ii) the action (if any) that has been taken by or against the
24
organisation or its members or officers in relation to
25
those matters; and
26
(iii) the best interests of the members of the organisation as a
27
whole; and
28
(iv) any other matters the Court considers relevant.
29
Note 1:
If the Commissioner fails to satisfy the Court that it would not be
30
unjust to cancel the organisation's registration, the Court may decide
31
instead to make any of the orders under Division 5. The Court may do
32
this whether or not an application for any of those orders has been
33
made under section 28A.
34
Note 2:
See Division 7 for the effect of cancellation.
35
Cancellation of registration and alternative orders
Schedule 2
No. , 2019
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
23
(1A) The Court must not cancel an organisation's registration unless it is
1
satisfied that, having regard to the gravity of the matters
2
constituting the ground, cancellation would not be unjust.
3
(2) The organisation must be given an opportunity of being heard by
4
the Court.
5
28K Orders additional to cancelling registration under section 28J
6
If the Federal Court cancels the registration of an organisation
7
under section 28J, the Court may, by order, do either or both of the
8
following:
9
(a) direct that an application by the former organisation for
10
registration as an organisation is not to be dealt with under
11
this Act before the end of a specified period;
12
(b) direct that an application for the registration of an
13
organisation whose officers are the same, or substantially the
14
same, as the officers of the former organisation is not to be
15
dealt with under this Act before the end of a specified period.
16
Division 5--Alternative Federal Court orders
17
28L When the Federal Court may make alternative orders
18
(1) The Federal Court may make orders under this Division if:
19
(a) the Court finds that a ground set out in an application under
20
section 28 or 28A in relation to an organisation is
21
established; and
22
(b) if the Court is considering an application under section 28, or
23
an application under section 28A together with an application
24
under section 28--the Commissioner fails to satisfy the
25
Court that it would not be unjust to cancel the registration of
26
the organisation.
27
(1A) The Court must not make an order under this Division unless it is
28
satisfied that, having regard to the gravity of the matters
29
constituting the ground, the order would not be unjust.
30
(2) Before making an order under section 28M or 28N, or exercising
31
the power mentioned in paragraph 28P(1)(a) in relation to only part
32
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24
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
No. , 2019
of an organisation or only some of its members, the Court must be
1
satisfied that:
2
(a) the ground set out in the application is established wholly or
3
mainly because of the conduct of:
4
(i) officers of a particular part of the organisation; or
5
(ii) members of a particular part of the organisation or a
6
particular class of members of the organisation; and
7
(b) it would not be unjust to make the order, or exercise the
8
power in that way, having regard to:
9
(i) the circumstances and nature of the officers' or
10
members' involvement in the matters constituting the
11
ground; and
12
(ii) any other matters the Court considers relevant.
13
(3) Before exercising the power mentioned in paragraph 28P(1)(a) in
14
relation to the whole of an organisation or all of its members, the
15
Court must be satisfied that it would not be unjust to exercise the
16
power in that way, having regard to:
17
(a) the nature of the matters constituting the ground; and
18
(b) any other matters the Court considers relevant.
19
(4) The organisation must be given an opportunity of being heard by
20
the Court.
21
28M Order--disqualification of certain officers
22
(1) The Federal Court may make an order disqualifying the officers
23
mentioned in subparagraph 28L(2)(a)(i) from holding office in an
24
organisation, for the period the Court considers appropriate.
25
(2) If the Court does so, the officers are also disqualified from holding
26
office in a branch of an organisation for the period.
27
28N Order--exclusion of certain members
28
(1) The Federal Court may make an order:
29
(a) determining alterations of the eligibility rules of the
30
organisation so as to exclude from eligibility for membership
31
of the organisation persons belonging to the part of the
32
Cancellation of registration and alternative orders
Schedule 2
No. , 2019
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
25
organisation, or the class of members, mentioned in
1
subparagraph 28L(2)(a)(ii); or
2
(b) if persons belonging to such a part or class are eligible for
3
membership under an agreement of the kind referred to in
4
section 151--declaring that the persons are excluded from
5
eligibility for membership despite anything in the agreement.
6
(2) An alteration of rules made under this section takes effect on the
7
date of the order or on such other day as is specified in the order.
8
(3) If the Court makes an order under this section, the Court may also,
9
by order, prohibit the organisation, for a specified period, from
10
seeking consent under section 158 to an alteration of the
11
organisation's eligibility rules that would have the effect of
12
restoring eligibility to any persons or class of persons excluded by
13
the order under this section.
14
28P Order--suspension of rights and privileges etc. and later
15
reconsideration of question of cancellation or alternative
16
orders
17
Powers to suspend rights, privileges etc.
18
(1) The Federal Court may, by order, exercise any of the following
19
powers:
20
(a) the power to suspend, to the extent specified in the order, any
21
of the rights, privileges or capacities of the organisation or a
22
part of the organisation, or of all or any of its members, as
23
such members, under this Act, the Fair Work Act or any
24
other Act, under modern awards or orders made under this
25
Act, the Fair Work Act or any other Act or under enterprise
26
agreements;
27
(b) the power to give directions as to the exercise of any rights,
28
privileges or capacities that have been suspended;
29
(c) the power to make provision restricting the use of the funds
30
or property of the organisation or a part of the organisation,
31
and for the control of the funds or property for the purpose of
32
ensuring observance of the restrictions.
33
Schedule 2
Cancellation of registration and alternative orders
26
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
No. , 2019
(2) An order made in the exercise of a power under this section has
1
effect despite anything in the rules of the organisation or a part of
2
the organisation.
3
(3) An order made in the exercise of a power under this section:
4
(a) may be revoked by the Court, by order, on application by a
5
party to the proceedings; and
6
(b) unless sooner revoked, ceases to be in force on the day
7
specified in the order.
8
Reconsideration of application
9
(4) If the Court exercises a power under this section in relation to an
10
application under section 28 or 28A (or both), the Court must
11
reconsider the application:
12
(a) by the time the orders made under this section cease to be in
13
force; or
14
(b) on application by a party to the proceeding before that time,
15
if the Court considers that it is just to reconsider the
16
application under section 28 or 28A before that time having
17
regard to any evidence given in relation to observance or
18
non-observance of any order and any other relevant
19
circumstances.
20
Division 6--Cancellation of registration of an organisation
21
by the FWC
22
5 At the end of section 30
23
Add:
24
Note:
See Division 7 for the effect of cancellation.
25
6 Before section 31
26
Insert:
27
Division 7--Effect of cancellation of registration
28
7 Before paragraph 158(10)(a)
29
Insert:
30
Cancellation of registration and alternative orders
Schedule 2
No. , 2019
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
27
(aa) determined by the Federal Court under section 28N; or
1
8 Section 343
2
Before "The", insert "(1)".
3
9 At the end of section 343
4
Add:
5
(2) Despite subsection (1), the Minister's functions or powers under
6
subsection 323(1) cannot be delegated.
7
10 Paragraph 343B(2)(a)
8
Repeal the paragraph, substitute:
9
(a) section 28 or 28A;
10
11 Application of amendments
11
(1)
In finding whether a ground set out in an application made under
12
section 28 or 28A of the
Fair Work (Registered Organisations) Act
13
2009
(the
Act
) as amended by this Schedule is established, the Federal
14
Court may only have regard to the following:
15
(a) for the ground set out in section 28C of the Act--conduct
16
engaged in after commencement;
17
(b) for the ground set out in section 28D of the Act--a finding
18
made in relation to conduct engaged in after commencement;
19
(c) for the ground set out in section 28E of the Act--convictions
20
or orders made in relation to conduct engaged in after
21
commencement;
22
(d) for the ground set out in section 28F of the Act--failures to
23
comply with orders or injunctions made after
24
commencement;
25
(e) for the ground set out in section 28G of the Act--industrial
26
action organised or engaged in after commencement.
27
(2)
However, the Court may have regard to matters occurring before or
28
after commencement for the purposes of subparagraphs 28J(1)(b)(iv)
29
and 28L(2)(b)(ii), and paragraph 28L(3)(b), of the Act.
30
Schedule 2
Cancellation of registration and alternative orders
28
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
No. , 2019
(3)
Sections 28 and 29 of the Act, as in force immediately before
1
commencement, continue in effect, after commencement and despite the
2
amendments made by this Schedule, in relation to:
3
(a) conduct engaged in before commencement; and
4
(b) conduct engaged in before or after commencement in relation
5
to an order or injunction made before commencement.
6
(4)
For the purposes of the operation of sections 28 and 29 of the Act as
7
continued in effect by subitem (3), the amendments made by this
8
Schedule are taken not to have been made.
9
(5)
In this item:
10
commencement
means the start of the day this item commences.
11
Administration of dysfunctional organisations etc.
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No. , 2019
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
29
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
Schedule 3
Administration of dysfunctional organisations etc.
30
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
No. , 2019
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
Administration of dysfunctional organisations etc.
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No. , 2019
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
31
(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
Schedule 3
Administration of dysfunctional organisations etc.
32
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
No. , 2019
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
Administration of dysfunctional organisations etc.
Schedule 3
No. , 2019
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
33
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
Schedule 3
Administration of dysfunctional organisations etc.
34
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
No. , 2019
(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 if the person does not comply with
22
subsection (2).
23
Penalty: 120 penalty units.
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
Administration of dysfunctional organisations etc.
Schedule 3
No. , 2019
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
35
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 if:
18
(a) the person is given a notice under subsection (3); and
19
(b) the person does not comply with the notice.
20
Penalty: 120 penalty units.
21
(6) Subsection (5) does not apply to the extent that the person is
22
entitled, as against the organisation or part and the administrator, to
23
retain possession of the books.
24
Note:
A defendant bears an evidential burden in relation to the matter in
25
subsection (6) (see subsection 13.3(3) of the
Criminal Code
).
26
323J Remuneration determinations
27
(1) The Federal Court may make any orders it considers appropriate to
28
provide for and in relation to remuneration which the administrator
29
for an organisation or a part of an organisation is entitled to receive
30
for necessary work properly performed by the administrator in
31
relation to the administration.
32
Schedule 3
Administration of dysfunctional organisations etc.
36
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
No. , 2019
(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
Public interest test for amalgamations
Schedule 4
No. , 2019
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
37
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 should be subject to a public interest
20
test. The amalgamation does not take effect if the FWC decides
21
that the public interest test is to apply to the amalgamation and that
22
the amalgamation fails that test.
23
3 Section 34
24
After "amalgamated organisation)", insert ", if the amalgamation takes
25
effect".
26
4 Section 37
27
Repeal the section, substitute:
28
Schedule 4
Public interest test for amalgamations
38
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
No. , 2019
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 subsection 72A(1):
14
(a) whether the test in paragraph 72A(1)(b) (the
public interest
15
test
) is to apply to a proposed amalgamation; or
16
(b) if the public interest test is to apply to the proposed
17
amalgamation--whether the amalgamation is in the public
18
interest.
19
7 Before section 73
20
Insert:
21
Subdivision A--Public interest test for amalgamations
22
72A Decision whether the public interest test is to apply to the
23
proposed amalgamation and, if so, whether the
24
amalgamation passes that test
25
(1) Before fixing an amalgamation day under section 73 for a proposed
26
amalgamation, the FWC must:
27
(a) decide whether the test in paragraph (b) (the
public interest
28
test
) is to apply to the amalgamation; and
29
(b) if the public interest test is to apply to the amalgamation--
30
decide whether the amalgamation is in the public interest.
31
Public interest test for amalgamations
Schedule 4
No. , 2019
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
39
Note 1:
The FWC must have regard to the matters in section 72D in deciding
1
whether the amalgamation passes the public interest test.
2
Note 2:
An amalgamation does not take effect if the FWC decides that the
3
public interest test is to apply to the amalgamation and that the
4
amalgamation fails that test (see section 72F).
5
(2) The FWC must, and may only,
decide under paragraph (1)(a) that
6
the public interest test is to apply
to the amalgamation if there is
7
information before the FWC that at least 20 compliance record
8
events have occurred for at least one of the existing organisations
9
concerned in the amalgamation within the 10 year period ending on
10
the day the application, or the most recent application, under
11
section 44 is lodged in relation to the amalgamation.
12
Note:
The FWC has ways of informing itself about whether events have
13
occurred (see section 590 of the Fair Work Act).
14
(3) The FWC may make decisions under subsection (1) at any time
15
after an application under section 44 is lodged with the FWC in
16
relation to the amalgamation.
17
72AA Writing and publication requirements for these FWC
18
decisions
19
(1) The FWC's decisions under subsection 72A(1) must be in writing.
20
(2) The FWC must give written reasons for any decision it makes
21
under that subsection.
22
(3) Such a decision, and the reasons for it, must be expressed in plain
23
English and be easy to understand in structure and content.
24
(4) The FWC must publish such a decision, and the reasons for it, on
25
its website or by any other means that the FWC considers
26
appropriate. The FWC must do so as soon as practicable after
27
making the decision.
28
(5) Subsections (1) and (4) do not limit the FWC's power to put
29
decisions in writing or publish decisions.
30
72B Hearings about public interest
31
If the public interest test in paragraph 72A(1)(b) is to apply to a
32
proposed amalgamation, the FWC must:
33
Schedule 4
Public interest test for amalgamations
40
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
No. , 2019
(a) fix a time and place for hearing submissions in relation to:
1
(i) the matters mentioned in subsection 72D(1) (record of
2
compliance with the law); and
3
(ii) whether the amalgamation is otherwise in the public
4
interest; and
5
(b) promptly notify the existing organisations concerned in the
6
amalgamation of the time and place of the hearing; and
7
(c) promptly publish notice of the time and place of the hearing
8
on its website and in any other way the FWC considers
9
appropriate.
10
72C Persons who may make submissions about public interest
11
(1) Submissions in relation to the matters mentioned in
12
subsection 72D(1) (record of compliance with the law), and
13
whether the amalgamation is otherwise in the public interest, may
14
be made by any of the following persons:
15
(a) the existing organisations;
16
(b) any other organisation that represents the industrial interests
17
of employers or employees in the industry or industries
18
concerned or that may otherwise be affected by the
19
amalgamation;
20
(c) a body other than an organisation that represents the interests
21
of employers or employees in the industry or industries
22
concerned;
23
(d) the Commissioner;
24
(e) the Minister;
25
(f) a Minister of a referring State (within the meaning of the Fair
26
Work Act), or of a Territory, who has responsibility for
27
workplace relations matters in the State or Territory;
28
(g) any other person with a sufficient interest in the
29
amalgamation.
30
(2) The FWC must have regard to any submissions made.
31
Public interest test for amalgamations
Schedule 4
No. , 2019
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
41
72D Matters to which the FWC must have regard
1
Record of compliance with the law
2
(1) In deciding under paragraph 72A(1)(b) whether the amalgamation
3
is in the public interest, the FWC must have regard to any
4
compliance record events that have occurred for each of the
5
existing organisations.
6
(2) If, having regard to the incidence, age and gravity of compliance
7
record events for an existing organisation, the FWC considers that
8
the organisation has a record of not complying with the law, the
9
FWC must decide under paragraph 72A(1)(b) that the
10
amalgamation is not in the public interest.
11
Other matters of public interest
12
(3) If the matter is not concluded under subsection (2), the FWC must,
13
in deciding under paragraph 72A(1)(b) whether the amalgamation
14
is otherwise in the public interest, have regard to the impact the
15
amalgamation is likely to have on:
16
(a) employees in the industry or industries concerned; and
17
(b) employers in the industry or industries concerned.
18
(4) The FWC may have regard to any other matters it considers
19
relevant.
20
72E Compliance record events
21
Involving organisation or members
22
(1) A
compliance record event
occurs for an organisation if:
23
(a) a designated finding is made against the organisation; or
24
(b) the organisation is found to be in contempt of court in
25
relation to an order or injunction made under a designated
26
law; or
27
(c) the organisation, or a substantial number of the members of:
28
(i) the organisation; or
29
(ii) a part of the organisation; or
30
(iii) a class of members of the organisation;
31
Schedule 4
Public interest test for amalgamations
42
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
No. , 2019
organises or engages in industrial action covered by
1
subsection 28G(2).
2
Involving officers
3
(2) A
compliance record event
also occurs for an organisation if:
4
(a) a designated finding is made against a person, if the person
5
was an officer of the organisation at the time of the conduct
6
to which the designated finding relates; or
7
(b) a person is found to be in contempt of court in relation to an
8
order or injunction made under any law of the
9
Commonwealth or a State or Territory, if the person:
10
(i) was an officer of the organisation at the time of the
11
conduct to which the finding relates; and
12
(ii) engaged in the conduct in the course of (or purportedly
13
in the course of) performing functions in relation to the
14
organisation; or
15
(c) a person becomes disqualified from holding office in an
16
organisation while he or she is an officer in the organisation.
17
72F Amalgamation not in public interest does not take effect
18
(1) If the FWC decides under paragraph 72A(1)(b) that the
19
amalgamation is not in the public interest:
20
(a) the FWC must not fix an amalgamation day for the
21
amalgamation; and
22
(b) the amalgamation does not take effect.
23
(2) If the FWC decides under paragraph 72A(1)(b) that the
24
amalgamation is not in the public interest at any time before the
25
FWC approves the submission of the amalgamation to ballot, then,
26
despite any other provision of this Part, the FWC must refuse to
27
approve the submission of the amalgamation to ballot.
28
Subdivision B--Amalgamation taking effect
29
8 Subsection 73(1)
30
After "takes effect", insert "(if at all)".
31
Public interest test for amalgamations
Schedule 4
No. , 2019
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
43
9 Subsection 73(2)
1
After "If", insert "after concluding its decisions under section 72A the
2
FWC is not prevented by subsection 72F(1) from fixing an
3
amalgamation day for the amalgamation, and".
4
10 Paragraph 73(2)(c)
5
Repeal the paragraph, substitute:
6
(c) there are no proceedings of the kind mentioned in
7
subsection (2A) pending against any of the existing
8
organisations concerned in the amalgamation; and
9
11 At the end of subsection 73(2)
10
Add:
11
Note:
An amalgamation does not take effect if the FWC decides it is not in
12
the public interest (see section 72F).
13
12 After subsection 73(2)
14
Insert:
15
(2A) For the purposes of paragraph (2)(c), the kind of proceedings are:
16
(a) criminal proceedings in relation to:
17
(i) a contravention of this Act, the Fair Work Act or any
18
other law of the Commonwealth; or
19
(ii) a breach of an order made under this Act, the Fair Work
20
Act or any other law of the Commonwealth; and
21
(b) civil proceedings for a contravention of a provision
22
mentioned in a subparagraph of paragraph (b) of the
23
definition of
designated finding
in subsection 9C(1).
24
13 Application of amendments
25
(1)
Without limiting the application of the amendments made by this
26
Schedule, those amendments apply in relation to a proposed
27
amalgamation if, on the day this item commences, an amalgamation day
28
for the amalgamation has not been fixed under section 73 of the
Fair
29
Work (Registered Organisations) Act 2009
.
30
Schedule 4
Public interest test for amalgamations
44
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
No. , 2019
(2)
To avoid doubt, subitem (1) applies regardless of whether an
1
application was lodged under section 43 or 44 of that Act in relation to
2
the amalgamation before this item commences.
3
(3)
A reference in the
Fair Work (Registered Organisations) Act 2009
to a
4
compliance record event includes an event that occurred before this
5
item commences.
6
Minor and technical amendments
Schedule 5
No. , 2019
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
45
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
46
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
No. , 2019
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
Functions of the Commissioner
Schedule 6
No. , 2019
Fair Work (Registered Organisations) Amendment (Ensuring Integrity
No. 2) Bill 2019
47
Schedule 6--Functions of the Commissioner
1
2
Fair Work (Registered Organisations) Act 2009
3
1 Section 329AB
4
Before "The Commissioner", insert "(1)".
5
2 At the end of section 329AB
6
Add:
7
(2) In carrying out the Commissioner's function of promoting efficient
8
management of organisations and high standards of accountability
9
of organisations and their office holders to their members, the
10
Commissioner must give priority to matters that raise serious or
11
systemic concerns.
12