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This is a Bill, not an Act. For current law, see the Acts databases.
2002
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Workplace
Relations (Registration and Accountability of Organisations) Bill
2002
No. ,
2002
(Employment and Workplace
Relations)
A Bill for an Act to provide for
the registration of associations of employers and of employees, to regulate
those associations after registration, and for related
purposes
Contents
A Bill for an Act to provide for the registration of
associations of employers and of employees, to regulate those associations after
registration, and for related purposes
The Parliament of Australia enacts:
This
Act may be cited as the Workplace Relations (Registration and Accountability
of Organisations) Act 2002.
(1) Each provision of this Act specified in column 1 of the table
commences, or is taken to have commenced, on the day or at the time specified in
column 2 of the table.
|
Commencement information |
||
|---|---|---|
|
Column 1 |
Column 2 |
Column 3 |
|
Provision(s) |
Commencement |
Date/Details |
|
1. Sections 1 and 2 and anything in this Act not elsewhere covered by
this table |
The day on which this Act receives the Royal Assent |
|
|
2. The remaining provisions of this Act |
A single day to be fixed by Proclamation, subject to
subsection (3) |
|
Note: This table relates only to the provisions of this Act
as originally passed by the Parliament and assented to. It will not be expanded
to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table is for additional information that is not part
of this Act. This information may be included in any published version of this
Act.
(3) If a provision covered by item 2 of the table does not commence
within the period of 6 months beginning on the day on which this Act receives
the Royal Assent, it commences on the first day after the end of that
period.
(1) This Act binds the Crown in each of its capacities.
(2) However, this Act does not make the Crown liable to be prosecuted for
an offence.
This Part sets out the objects of the Act and contains other provisions
that are relevant to the Act as a whole.
It includes definitions of terms that are used throughout the Act. However,
not all definitions are in this Part. Definitions of terms that are used only in
a particular area of the Act, or only in one section of the Act, are generally
defined in that area or section.
The principal objects of this Act are to:
(a) ensure that employee and employer organisations registered under this
Act are representative of and accountable to their members, and are able to
operate effectively; and
(b) encourage members to participate in the affairs of organisations to
which they belong; and
(c) encourage the efficient management of organisations and high standards
of accountability of organisations to their members; and
(d) provide for the democratic functioning and control of
organisations.
Note: The Workplace Relations Act contains many provisions
that affect the operation of this Act. For example, provisions of the Workplace
Relations Act deal with the powers and functions of the Commission and of
Registrars. Decisions made under this Act may be subject to procedures and rules
(for example about appeals) that are set out in the Workplace Relations
Act.
In this Act, unless the contrary intention appears:
AEC means the Australian Electoral Commission.
Note: Section 11 is also relevant to this
definition.
approved, in relation to the conduct of an election or a
ballot, means approved by the AEC by notice published in the
Gazette.
approved auditor has the meaning given by the
regulations.
auditor, in relation to a reporting unit, means:
(a) the person who is the holder of the position of auditor of the
reporting unit under section 256; or
(b) where a firm is the holder of the position—each person who is,
from time to time, a member of the firm and is an approved auditor.
Australian Accounting Standards means the accounting
standards:
(a) issued by the Australian Accounting Standards Board; or
(b) issued by CPA Australia and by The Institute of Chartered Accountants
in Australia and adopted by the Australian Accounting Standards Board;
as in force, or applicable, from time to time, as modified by regulations
made for the purpose of this definition.
Australian Auditing Standards means the auditing and
assurance standards issued by CPA Australia and The Institute of Chartered
Accountants in Australia as in force, or applicable, from time to
time.
AWA means an Australian workplace agreement under
Part VID of the Workplace Relations Act.
award means an award or order that has been reduced to
writing under subsection 143(1) of the Workplace Relations Act, but does not
include an order made by the Commission in a proceeding under Subdivision B of
Division 3 of Part VIA of that Act.
breach includes non-observance.
certified agreement means an agreement certified under
Division 4 of Part VIB of the Workplace Relations Act.
civil penalty provision has the meaning given by subsection
305(2).
collective body means:
(a) in relation to an organisation—the committee of management or a
conference, council, committee, panel or other body of or within the
organisation; and
(b) in relation to a branch of an organisation—the committee of
management or a conference, council, committee, panel or other body of or within
the branch.
collegiate electoral system, in relation to an election for
an office in an organisation, means a method of election comprising a first
stage, at which persons are elected to a number of offices by a direct voting
system, and a subsequent stage or subsequent stages at which persons are elected
by and from a body of persons consisting only of:
(a) persons elected at the last preceding stage; or
(b) persons elected at the last preceding stage and other persons (being
in number not more than 15% of the number of persons comprising the body)
holding offices in the organisation (including the office to which the election
relates), not including any person holding such an office merely because of
having filled a casual vacancy in the office within the last 12 months, or the
last quarter, of the term of the office.
Commission means the Australian Industrial Relations
Commission established under section 8 of the Workplace Relations
Act.
committee of management:
(a) in relation to an organisation, association or branch of an
organisation or association, means the group or body of persons (however
described) that manages the affairs of the organisation, association or branch;
and
(b) in relation to a reporting unit, means the group or body of persons
(however described) that, under the rules of the reporting unit, is responsible
for undertaking the functions necessary to enable the reporting unit to comply
with Part 3 of Chapter 8.
Commonwealth authority means:
(a) a body corporate established for a public purpose by or under a law of
the Commonwealth or the Australian Capital Territory; or
(b) a body corporate:
(i) incorporated under a law of the Commonwealth or a State or Territory;
and
(ii) in which the Commonwealth has a controlling interest.
conduct includes being (whether directly or indirectly) a
party to, or concerned in, the conduct.
constitutional corporation means:
(a) a foreign corporation within the meaning of paragraph 51(xx) of the
Constitution; or
(b) a body corporate that is, for the purposes of paragraph 51(xx) of the
Constitution, a financial corporation formed within the limits of the
Commonwealth; or
(c) a body corporate that is, for the purposes of paragraph 51(xx) of the
Constitution, a trading corporation formed within the limits of the
Commonwealth; or
(d) a body corporate that is incorporated in a Territory; or
(e) a Commonwealth authority.
declaration envelope means an envelope in the form prescribed
by the regulations on which a voter is required to make a declaration containing
the prescribed information.
demarcation dispute includes:
(a) a dispute arising between 2 or more organisations, or within an
organisation, as to the rights, status or functions of members of the
organisations or organisation in relation to the employment of those members;
or
(b) a dispute arising between employers and employees, or between members
of different organisations, as to the demarcation of functions of employees or
classes of employees; or
(c) a dispute about the representation under this Act or the Workplace
Relations Act of the industrial interests of employees by an organisation of
employees.
Deputy Industrial Registrar means a Deputy Industrial
Registrar appointed under section 75 of the Workplace Relations
Act.
direct voting system, in relation to an election for an
office in an organisation, means a method of election at which:
(a) all financial members; or
(b) all financial members included in the branch, section, class or other
division of the members of the organisation that is appropriate having regard to
the nature of the office;
are, subject to reasonable provisions in relation to enrolment, eligible to
vote.
Electoral Commissioner has the same meaning as in the
Commonwealth Electoral Act 1918.
electoral official means an Australian Electoral
Officer or a member of the staff of the AEC.
eligibility rules, in relation to an organisation or
association, means the rules of the organisation or association that relate to
the conditions of eligibility for membership or the description of the industry
or enterprise (if any) in connection with which the organisation is, or the
association is proposed to be, registered.
employee includes any person whose usual occupation is
that of employee, but does not include a person who is undertaking a vocational
placement within the meaning of section 4 of the Workplace Relations
Act.
employer includes:
(a) a person who is usually an employer; and
(b) an unincorporated club.
employing authority, in relation to a class of employees,
means the person or body, or each of the persons or bodies, prescribed as the
employing authority in relation to the class of employees.
Employment Advocate means the Employment Advocate referred to
in Part IVA of the Workplace Relations Act.
enterprise means:
(a) a business that is carried on by a single employer; or
(b) an operationally distinct part of such a business; or
(c) 2 or more operationally distinct parts of the same business carried on
by the same employer.
enterprise association means an association referred to in
paragraph 18(1)(c).
enterprise organisation means an enterprise association that
is registered as an organisation under this Act.
excluded auditor, in relation to a reporting unit,
means:
(a) an officer or employee of the reporting unit or the organisation of
which the reporting unit is a part; or
(b) a partner, employer or employee of an officer or employee of the
reporting unit or the organisation of which the reporting unit is a part;
or
(c) a liquidator in respect of property of the reporting unit or the
organisation of which the reporting unit is a part; or
(d) a person who owes more than $5,000 to the reporting unit or the
organisation of which the reporting unit is a part.
For the purposes of this definition, employee has the same
meaning as in Part 3 of Chapter 8.
exempt public sector superannuation scheme has the same
meaning as in the Superannuation Industry (Supervision) Act
1993.
Federal Court means the Federal Court of Australia.
financial records includes the following to the extent that
they relate to finances or financial administration:
(a) a register;
(b) any other record of information;
(c) financial reports or financial records, however compiled, recorded or
stored;
(d) a document.
financial year, in relation to an organisation,
means:
(a) the period of 12 months commencing on 1 July in any year;
or
(b) if the rules of the organisation provide for another period of 12
months as the financial year of the organisation—the other period of 12
months.
Note: Section 240 provides for a different financial
year in special circumstances.
Full Bench means a Full Bench of the Commission.
general purpose financial report means the report prepared in
accordance with section 253.
independent contractor is confined to a natural
person.
industrial action has the meaning given by
section 7.
industrial dispute has the meaning given by
section 8.
Industrial Registrar means the Industrial Registrar appointed
under section 67 of the Workplace Relations Act.
Industrial Registry means the Australian Industrial Registry
established under section 62 of the Workplace Relations Act.
irregularity, in relation to an election or ballot,
includes:
(a) a breach of the rules of an organisation or branch of an organisation;
and
(b) an act or omission by means of which:
(i) the full and free recording of votes by all persons entitled to record
votes and by no other persons; or
(ii) a correct ascertainment or declaration of the results of the
voting;
is, or is attempted to be, prevented or hindered; and
(c) a contravention of subsection 190(1).
office has the meaning given by section 9.
officer, in relation to an organisation, or a branch of an
organisation, means a person who holds an office in the organisation or branch
(including such a person when performing duties as a designated officer under
Part 3 of Chapter 8).
old IR agreement means an agreement certified or approved
under any of the following provisions of the Workplace Relations Act:
(a) section 115, as in force immediately before the commencement of
the Schedule to the Industrial Relations Legislation Amendment Act 1992;
or
(b) Division 3A of Part VI, as in force immediately before the
commencement of Schedule 2 to the Industrial Relations Reform Act
1993; or
(c) Part VIB, as in force immediately before the commencement of
item 1 of Schedule 9 to the Workplace Relations and Other
Legislation Amendment Act 1996.
one-tier collegiate electoral system means a
collegiate electoral system comprising only one stage after the first
stage.
operating report means the report prepared under
section 254.
organisation means an organisation registered under this
Act.
Note: Organisations registered under the Workplace Relations
Act immediately before this Act commenced are taken to be registered under this
Act (see the Workplace Relations (Registration and Accountability of
Organisations) (Consequential Provisions) Act 2002).
postal ballot means a ballot for the purposes of
which:
(a) a ballot paper and a declaration envelope are sent by prepaid post to
each person entitled to vote; and
(b) facilities are provided for the return of the completed ballot paper
by post by the voter without expense to the voter.
prescribed includes prescribed by Rules of the Commission
made under section 48 of the Workplace Relations Act.
President means the President of the
Commission.
Presidential Member means the President, a Vice
President, a Senior Deputy President or a Deputy President, of the
Commission.
public sector employment has the same meaning as in the
Workplace Relations Act.
Registrar means the Industrial Registrar or a Deputy
Industrial Registrar.
registry means the Principal Registry or another
registry established under section 64 of the Workplace Relations
Act.
Registry official means:
(a) a Registrar; or
(b) a member of the staff of the Industrial Registry.
reporting guidelines mean the guidelines issued under
section 255.
reporting unit has the meaning given by
section 242.
State industrial authority means:
(a) a board or court of conciliation or arbitration, or tribunal, body or
persons, having authority under a State Act to exercise any power of
conciliation or arbitration in relation to industrial disputes within the limits
of the State; or
(b) a special board constituted under a State Act relating to factories;
or
(c) any other State board, court, tribunal, body or official prescribed
for the purposes of this definition.
superannuation entity has the same meaning as in the
Superannuation Industry (Supervision) Act 1993.
this Act includes the regulations.
Workplace Relations Act means the Workplace Relations Act
1996 and regulations made under that Act.
(1) In this Act, industrial action means:
(a) the performance of work in a manner different from that in which it is
customarily performed, or the adoption of a practice in relation to work, the
result of which is a restriction or limitation on, or a delay in, the
performance of the work, where:
(i) the terms and conditions of the work are prescribed, wholly or partly,
by an award or an order of the Commission, by a certified agreement, old IR
agreement or AWA, by an award, determination or order made by another tribunal
under a law of the Commonwealth or otherwise by or under a law of the
Commonwealth; or
(ii) the work is performed, or the practice is adopted, in connection with
an industrial dispute; or
(b) a ban, limitation or restriction on the performance of work, or on
acceptance of or offering for work, in accordance with the terms and conditions
prescribed by an award or an order of the Commission, by a certified agreement,
or old IR agreement or AWA, by an award, determination or order made by another
tribunal under a law of the Commonwealth or otherwise by or under a law of the
Commonwealth; or
(c) a ban, limitation or restriction on the performance of work, or on
acceptance of or offering for work, that is adopted in connection with an
industrial dispute; or
(d) a failure or refusal by persons to attend for work or a failure or
refusal to perform any work at all by persons who attend for work, if:
(i) the persons are members of an organisation and the failure or refusal
is in accordance with a decision made, or direction given, by an organisation,
the committee of management of the organisation, or an officer or a group of
members of the organisation acting in that capacity; or
(ii) the failure or refusal is in connection with an industrial dispute;
or
(iii) the persons are employed by the Commonwealth or a constitutional
corporation; or
(iv) the persons are employed in a Territory;
but does not include:
(e) action by employees that is authorised or agreed to by the employer of
the employees; or
(f) action by an employer that is authorised or agreed to by or on behalf
of employees of the employer; or
(g) action by an employee if:
(i) the action was based on a reasonable concern by the employee about an
imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of
his or her employer to perform other available work, whether at the same or
another workplace, that was safe and appropriate for the employee to
perform.
(2) For the purposes of this Act:
(a) conduct is capable of constituting industrial action
even if the conduct relates to part only of the duties that persons are required
to perform in the course of their employment; and
(b) industrial action includes a course of conduct
consisting of a series of industrial actions.
(1) In this Act, industrial dispute means:
(a) an industrial dispute (including a threatened, impending or probable
industrial dispute):
(i) extending beyond the limits of any one State; and
(ii) that is about matters pertaining to the relationship between
employers and employees; or
(b) a situation that is likely to give rise to an industrial dispute of
the kind referred to in paragraph (a);
and includes:
(c) a demarcation dispute (whether or not, in the case of a demarcation
dispute involving an organisation or the members of an organisation in that
capacity, the dispute extends beyond the limits of any one State); and
(d) a part of an industrial dispute; and
(e) an industrial dispute so far as it relates to a matter in dispute;
and
(f) a question arising in relation to an industrial dispute.
Additional operation of Act—extension to industrial
issues
(2) Without affecting its operation apart from this section, this Act also
has effect as if a reference to an industrial dispute included a
reference to an industrial issue.
(3) In this section, industrial issue has the meaning that
it is given by section 5 of the Workplace Relations Act for the purposes of
that section.
Additional operation of Act—extension to Victorian
disputes
(4) Subsection (5) has effect only for so long, and in so far, as the
Commonwealth Powers (Industrial Relations) Act 1996 of Victoria refers to
the Parliament of the Commonwealth a matter or matters that result in the
Parliament of the Commonwealth having sufficient legislative power for that
subsection to have effect.
(5) Without affecting its operation apart from this section, this Act also
has effect as if the definition of industrial dispute in
subsection (1) were replaced by the following:
industrial dispute means:
(a) an industrial dispute (including a threatened, impending or probable
industrial dispute):
(i) within the limits of Victoria; and
(ii) that is about matters pertaining to the relationship between
employers and employees; or
(b) a situation that is likely to give rise to an industrial dispute of
the kind referred to in paragraph (a);
and includes a demarcation dispute.
(1) In this Act, office, in relation to an organisation or a
branch of an organisation means:
(a) an office of president, vice president, secretary or assistant
secretary of the organisation or branch; or
(b) the office of a voting member of a collective body of the organisation
or branch, being a collective body that has power in relation to any of the
following functions:
(i) the management of the affairs of the organisation or branch;
(ii) the determination of policy for the organisation or branch;
(iii) the making, alteration or rescission of rules of the organisation or
branch;
(iv) the enforcement of rules of the organisation or branch, or the
performance of functions in relation to the enforcement of such rules;
or
(c) an office the holder of which is, under the rules of the organisation
or branch, entitled to participate directly in any of the functions referred to
in subparagraphs (b)(i) and (iv), other than an office the holder of which
participates only in accordance with directions given by a collective body or
another person for the purpose of implementing:
(i) existing policy of the organisation or branch; or
(ii) decisions concerning the organisation or branch; or
(d) an office the holder of which is, under the rules of the organisation
or branch, entitled to participate directly in any of the functions referred to
in subparagraphs (b)(ii) and (iii); or
(e) the office of a person holding (whether as trustee or otherwise)
property:
(i) of the organisation or branch; or
(ii) in which the organisation or branch has a beneficial
interest.
(2) In this Act, a reference to an office in an association
or organisation includes a reference to an office in a branch of the association
or organisation.
Forging
(1) For the purposes of this Act, a person is taken to have
forged a document if the person:
(a) makes a document which is false, knowing it to be false; or
(b) without authority, alters a genuine document in a material
particular;
with intent that:
(c) the false or altered document may be used, acted on, or accepted, as
genuine, to the prejudice of another person; or
(d) another person may, in the belief that it is genuine, be induced to do
or refrain from doing an act.
(2) For the purposes of this Act, if a person:
(a) makes a document which is false, knowing it to be false; or
(b) without authority, alters a genuine document in a material
particular;
with intent that a computer, a machine or other device should respond to
the false or altered document as if it were genuine:
(c) to the prejudice of another person; or
(d) with the result that another person would be induced to do or refrain
from doing an act;
the first-mentioned person is taken to have forged the
document.
Uttering
(3) For the purposes of this Act, a person is taken to utter
a forged document if the person:
(a) uses or deals with it; or
(b) attempts to use or deal with it; or
(c) attempts to induce another person to use, deal with, act upon, or
accept it.
(1) In this Act, a reference to a ballot or election being conducted, or a
step in a ballot or election being taken, by the AEC is a
reference to the ballot or election being conducted, or the step being taken,
by:
(a) an electoral official; or
(b) a person authorised on behalf of the AEC to do so.
(2) In this Act, a reference to the opinion or other state of mind of the
AEC, in relation to the exercise of a function, is a reference to
the opinion or other state of mind of a person authorised to carry out the
function on behalf of the AEC.
In this Act, unless the contrary intention appears, a reference
to:
(a) a person who is eligible to become a member of an organisation;
or
(b) a person who is eligible for membership of an organisation;
includes a reference to a person who is eligible merely because of an
agreement made under rules of the organisation made under subsection
151(1).
(1) The functions of the Industrial Registry include:
(a) keeping a register of organisations; and
(b) providing advice and assistance to organisations in relation to their
rights and obligations under this Act.
Note: Other functions of the Industrial Registry are set out
in section 63 of the Workplace Relations Act.
(2) Subject to this Act, the register of organisations is to be kept in
whatever form the Industrial Registrar considers appropriate.
(1) The President may establish a panel (the Organisations
Panel) of members of the Commission to exercise the powers of the
Commission under this Act.
(2) The Organisations Panel is to consist of:
(a) a Presidential Member whose duties include organising and allocating
the work of the Panel; and
(b) one or more other members of the Commission assigned to the Panel by
the President.
(3) A member of the Organisations Panel may be a member of one or more
panels referred to in section 37 of the Workplace Relations Act.
Note: Section 37 of the Workplace Relations Act
provides for the setting up of Commission panels for particular
industries.
(4) The fact that a person is a member of the Organisations Panel does not
affect any powers, function or duties that have been, or may be, given to the
person by or under any other provision of this Act or the Workplace Relations
Act.
(5) Even if the President establishes an Organisations Panel, he or she
may direct that the powers of the Commission in relation to a particular matter
arising under this Act are to be exercised by:
(a) a member of the Commission who is not a member of the Panel;
or
(b) members of the Commission, some or all of whom are not members of the
Panel.
Part 2.5 of the Criminal Code does not apply to offences
against this Act.
Note 1: Section 6 of this Act defines this
Act to include the regulations.
Note 2: For the purposes of this Act (and the regulations),
corporate criminal responsibility is dealt with by section 344, rather than
by Part 2.5 of the Criminal Code.
If a maximum penalty is specified:
(a) at the foot of a section of this Act (other than a section that is
divided into subsections); or
(b) at the foot of a subsection of this Act;
then:
(c) a person who contravenes the section or subsection is guilty of an
offence punishable, on conviction, by a penalty not exceeding the specified
penalty; or
(d) the offence referred to in the section or subsection is punishable, on
conviction, by a penalty not exceeding the specified penalty.
This Chapter deals with the types of employer and employee associations
that can be registered and the conditions for their registration (see
Part 2). Part 2 also prohibits certain kinds of discriminatory conduct
by employers and organisations in relation to the formation and registration of
employee associations.
This Chapter also provides that an organisation’s registration can be
cancelled by the Federal Court or by the Commission. It sets out the grounds and
procedures for cancellation, and the consequences of cancellation (see
Part 3).
(1) Any of the following associations may apply for registration as an
organisation:
(a) an association of which some or all of the members are employers who
are capable of being engaged in an industrial dispute and the other members (if
any) are:
(i) officers of the association; or
(ii) persons (other than employees) who carry on business; or
(iii) persons who, when admitted to membership, were employers and who
have not resigned and whose membership has not been terminated;
(b) an association of which some or all of the members are employees who
are capable of being engaged in an industrial dispute and the other members (if
any) are:
(i) officers of the association; or
(ii) persons specified in Schedule 1; or
(iii) independent contractors who, if they were employees performing work
of the kind which they usually perform as independent contractors, would be
employees eligible for membership of the association;
(c) an association (an enterprise association) of which some
or all of the members are employees performing work in the same enterprise and
the other members (if any) are:
(i) officers of the association; or
(ii) persons specified in Schedule 1; or
(iii) independent contractors who, if they were employees performing work
of the kind which they usually perform as independent contractors, would be
employees eligible for membership of the association.
(2) Subsection (1) does not apply in relation to an association that
has members referred to in subparagraph (1)(a)(ii) or (iii), (b)(ii) or
(iii) or (c)(ii) or (iii) unless the association is effectively representative
of the members who are employers or employees, as the case may be.
(1) The Commission must grant an application for registration made by an
association (other than an enterprise association) that, under section 18,
may apply for registration as an organisation if, and only if:
(a) the association:
(i) is a genuine association of a kind referred to in section 18;
and
(ii) is an association for furthering or protecting the interests of its
members; and
(b) in the case of an association of employees—the association is
free from control by, or improper influence from, an employer or by an
association or organisation of employers; and
(c) in the case of an association of employers—the members who are
employers have, in the aggregate, throughout the 6 months before the
application, employed on an average taken per month at least 50 employees;
and
(d) in the case of an association of employees—the association has
at least 50 members who are employees; and
(e) the Commission is satisfied that the association would conduct its
affairs in a way that meets the obligations of an organisation under this Act
and the Workplace Relations Act; and
(f) the rules of the association make provision as required by this Act to
be made by the rules of organisations; and
(g) the association does not have the same name as that of an organisation
or a name that is so similar to the name of an organisation as to be likely to
cause confusion; and
(h) a majority of the members present at a general meeting of the
association, or an absolute majority of the committee of management of the
association, have passed, under the rules of the association, a resolution in
favour of registration of the association as an organisation; and
(i) the registration of the association would further the objects set out
in section 5 of this Act and section 3 of the Workplace Relations Act;
and
(j) subject to subsection (2), there is no organisation to which
members of the association might belong or, if there is such an organisation, it
is not an organisation:
(i) to which the members of the association could more conveniently
belong; and
(ii) that would more effectively represent those members.
(2) If:
(a) there is an organisation to which the members of the association might
belong; and
(b) the members of the association could more conveniently belong to the
organisation; and
(c) the organisation would more effectively represent those members than
the association would;
the requirements of paragraph (1)(j) are taken to have been met if the
Commission accepts an undertaking from the association that the Commission
considers appropriate to avoid demarcation disputes that might otherwise arise
from an overlap between the eligibility rules of the organisation and the
eligibility rules of the association.
(3) Without limiting the matters that the Commission may take into account
in considering, under subparagraph (1)(j)(ii), the effectiveness of the
representation of an organisation or association, the Commission must take into
account whether the representation would be consistent with the objects set out
in section 5 of this Act and section 3 of the Workplace Relations
Act.
(4) In applying paragraph (1)(e), the Commission must have regard to
whether any recent conduct by the association or its members would have provided
grounds for an application under section 28 had the association been
registered when the conduct occurred.
(1) The Commission must grant an application for registration made by an
enterprise association that, under section 18, may apply for registration
as an organisation if, and only if:
(a) the association:
(i) is a genuine association of a kind referred to in section 18;
and
(ii) is an association for furthering or protecting the interests of its
members; and
(b) the association is free from control by, or improper influence
from:
(i) any employer, whether at the enterprise in question or otherwise;
or
(ii) any person or body with an interest in that enterprise; or
(iii) any organisation, or any other association of employers or
employees; and
(c) the association has at least 50 members who are employees;
and
(d) the Commission is satisfied that the association would conduct its
affairs in a way that meets the obligations of an organisation under this Act
and the Workplace Relations Act; and
(e) the rules of the association make provision as required by this Act to
be made by the rules of organisations; and
(f) the association does not have the same name as that of an organisation
or a name that is so similar to the name of an organisation as to be likely to
cause confusion; and
(g) the Commission is satisfied that a majority of the persons eligible to
be members of the association support its registration as an organisation;
and
(h) a majority of the members present at a general meeting of the
association, or an absolute majority of the committee of management of the
association, have passed, under the rules of the association, a resolution in
favour of registration of the association as an organisation; and
(i) the registration of the association would further the objects set out
in section 5 of this Act and section 3 of the Workplace Relations
Act.
(2) In applying paragraph (1)(d), the Commission must have regard to
whether any recent conduct by the association or its members would have provided
grounds for an application under section 28 had the association been
registered when the conduct occurred.
(1) An employer must not, for a prohibited reason, or for reasons that
include a prohibited reason, do or threaten to do any of the
following:
(a) dismiss an employee;
(b) injure an employee in his or her employment;
(c) alter the position of an employee to the employee’s
prejudice;
(d) discriminate against an employee.
(2) A person must not, for a prohibited reason, or for reasons that
include a prohibited reason, do or threaten to do any of the
following:
(a) terminate a contract for services that he or she has entered into with
an independent contractor;
(b) injure an independent contractor in relation to the terms and
conditions of the contract for services;
(c) alter the position of an independent contractor to the independent
contractor’s prejudice;
(d) discriminate against an independent contractor.
(3) Conduct referred to in subsection (1) or (2) is for a
prohibited reason if it is carried out because the employee or
independent contractor has done, or has omitted to do, any act:
(a) under this Act that relates to the formation or registration of an
association referred to in paragraph 18(1)(b) or (c); or
(b) in connection with, or in preparation for, such an act or
omission.
(4) The following are examples of acts or omissions to which
subsection (3) applies:
(a) making an application for registration of an employee association
under paragraph 18(1)(b) or (c);
(b) supporting the registration of an employee association (for example,
by supporting, or supporting the making of, an application for its
registration);
(c) participating, or encouraging a person to participate, in proceedings
before the Commission in relation to such an application;
(d) not participating, or encouraging a person not to participate, in such
proceedings;
(e) becoming a member, or encouraging a person to become a member, of an
employee association.
(1) An organisation, or an officer or member of an organisation, must not
take, or threaten to take, industrial action whose aim, or one of whose aims, is
to coerce a person to breach section 21.
(2) An organisation, or an officer or member of an organisation, must not,
for a prohibited reason, or for reasons that include a prohibited reason, take
or threaten to take, any action whose aim, or one of whose aims, is to prejudice
a person in the person’s employment, or an independent contractor in the
contractor’s engagement.
(3) Conduct referred to in subsection (2) is for a prohibited
reason if it is carried out because the person has done, or has
omitted to do, any act:
(a) under this Act that relates to the formation or registration of an
association referred to in paragraph 18(1)(b) or (c); or
(b) in connection with, or in preparation for, such an act or
omission.
(4) The examples set out in subsection 21(4) are examples of acts or
omissions to which subsection (3) of this section applies.
(5) An organisation, or an officer or member of an organisation, must not
impose, or threaten to impose, a penalty, forfeiture or disability of any kind
on a member of the organisation because the member concerned does or proposes to
do, for a prohibited reason, an act or omission referred to in subsection
21(3).
(1) The Federal Court may, if the Court considers it appropriate in all
the circumstances, make one or more of the following orders in respect of
conduct that contravenes section 21 or 22:
(a) an order imposing on a person whose conduct contravenes that section a
penalty of not more than:
(i) in the case of a body corporate—100 penalty units; or
(ii) in any other case—20 penalty units;
(b) an order requiring the person not to carry out a threat made by the
person, or not to make any further threat;
(c) injunctions (including interim injunctions), and any other orders,
that the Court considers necessary to stop the conduct or remedy its
effects;
(d) any other consequential orders.
(2) An application for an order under subsection (1) may be made
by:
(a) a person against whom the conduct is being, has been, or is
threatened to be, taken; or
(b) any other person prescribed by the regulations.
(1) For the purposes of this Division:
(a) action done by one of the following bodies or persons is taken to have
been done by an organisation:
(i) the committee of management of the organisation;
(ii) an officer or agent of the organisation acting in that
capacity;
(iii) a member or group of members of the organisation acting under the
rules of the organisation;
(iv) a member of the organisation, who performs the function of dealing
with an employer on behalf of other members of the organisation, acting in that
capacity; and
(b) action done by an agent of an employer acting in that capacity is
taken to have been done by the employer.
(2) Subparagraphs (1)(a)(iii) and (iv) and paragraph (1)(b) do
not apply if:
(a) in relation to subparagraphs (1)(a)(iii) and (iv):
(i) a committee of management of the organisation; or
(ii) a person authorised by the committee; or
(iii) an officer of the organisation;
has taken reasonable steps to prevent the action; or
(b) in relation to paragraph (1)(b), the employer has taken
reasonable steps to prevent the action.
(3) In this section:
officer, in relation to an organisation, includes:
(a) a delegate or other representative of the organisation; and
(b) an employee of the organisation.
(1) The Commission may, on the application of an association applying to
be registered as an organisation, grant leave to the association, on such terms
and conditions as the Commission considers appropriate, to change its name or to
alter its rules:
(a) to enable it to comply with this Act; or
(b) to remove a ground of objection taken by an objector under the
regulations or by the Commission; or
(c) to correct a formal error in its rules (for example, to remove an
ambiguity, to correct spelling or grammar, or to correct an incorrect reference
to an organisation or person).
Note: Paragraph (a)—in order for an organisation
to comply with this Act, its rules must not be contrary to the Workplace
Relations Act (see paragraph 142(a) of this Act).
(2) An association granted leave under subsection (1) may change its
name, or alter its rules, even though the application for registration is
pending.
(3) Rules of an association as altered in accordance with leave granted
under subsection (1) are binding on the members of the
association:
(a) in spite of anything in the other rules of the association;
and
(b) subject to any further alterations lawfully made.
(1) When the Commission grants an application by an association for
registration as an organisation, the Industrial Registrar must immediately
enter, in the register kept under paragraph 13(1)(a), such particulars in
relation to the association as are prescribed and the date of the
entry.
(2) An association is to be taken to be registered under this Act when the
Industrial Registrar enters the prescribed particulars in the register under
subsection (1).
(3) On registration, an association becomes an organisation.
(4) The Industrial Registrar must issue to each organisation registered
under this Act a certificate of registration in the prescribed form.
Note: Certificates of registration issued under the
Workplace Relations Act continue in force (see the Workplace Relations
(Registration and Accountability of Organisations) (Consequential Provisions)
Act 2002).
(5) The certificate is, until proof of cancellation, conclusive evidence
of the registration of the organisation specified in the certificate.
(6) The Industrial Registrar may, as prescribed, issue to an organisation
a copy of, or a certificate replacing, the certificate of registration issued
under subsection (4) or that certificate as amended under
section 160.
An organisation:
(a) is a body corporate; and
(b) has perpetual succession; and
(c) has power to purchase, take on lease, hold, sell, lease, mortgage,
exchange and otherwise own, possess and deal with, any real or personal
property; and
(d) must have a common seal; and
(e) may sue or be sued in its registered name.
(1) An organisation or person interested, or the Minister, may apply to
the Federal Court for an order cancelling the registration of an organisation on
the ground that:
(a) the conduct of:
(i) the organisation (in relation to its continued breach of an award, an
order of the Commission, a certified agreement or an old IR agreement or its
continued failure to ensure that its members comply with and observe an award,
an order of the Commission, a certified agreement or an old IR agreement or in
any other respect); or
(ii) a substantial number of the members of the organisation (in relation
to their continued breach of an award, an order of the Commission, a certified
agreement or an old IR agreement or in any other respect);
has prevented or hindered the achievement of an object of this Act or the
Workplace Relations Act; or
(b) the organisation, or a substantial number of the members of the
organisation or of a section or class of members of the organisation, has
engaged in industrial action that has prevented, hindered or interfered
with:
(i) trade or commerce between Australia and a place outside Australia;
or
(ii) trade or commerce between the States; or
(iii) trade or commerce within a Territory, between a State and a
Territory or between 2 Territories; or
(iv) the provision of any public service by the Commonwealth or a State or
Territory or an authority of the Commonwealth or a State or Territory;
or
(c) the organisation, or a substantial number of the members of the
organisation or of a section or class of members of the organisation, has or
have been, or is or are, engaged in industrial action that has had, is having or
is likely to have a substantial adverse effect on the safety, health or welfare
of the community or a part of the community; or
(d) the organisation, or a substantial number of the members of the
organisation or of a section or class of members of the organisation, has or
have failed to comply with an injunction granted under subsection 127(6) or (7)
of the Workplace Relations Act; or
(e) the organisation, or a substantial number of the members of the
organisation or of a section or class of members of the organisation, has or
have failed to comply with an injunction granted under section 187AD of the
Workplace Relations Act.
(2) An organisation in relation to which an application is made under
subsection (1) must be given an opportunity of being heard by the
Court.
(3) If the Court:
(a) finds that a ground for cancellation set out in the application has
been established; and
(b) does not consider that it would be unjust to do so having regard to
the degree of gravity of the matters constituting the ground and the action (if
any) that has been taken by or against the organisation in relation to the
matters;
the Court must, subject to subsection (4) and section 29, cancel
the registration of the organisation.
(4) If:
(a) the Court finds that a ground for cancellation set out in the
application has been established; and
(b) that finding is made, wholly or mainly, because of the conduct of a
particular section or class of members of the organisation;
the Court may, if it considers it just to do so, instead of cancelling the
registration of the organisation under subsection (3), by order:
(c) determine alterations of the eligibility rules of the organisation so
as to exclude from eligibility for membership of the organisation persons
belonging to the section or class; or
(d) where persons belonging to the section or class are eligible for
membership under an agreement of the kind referred to in
section 151—declare that the persons are excluded from eligibility
for membership in spite of anything in the agreement.
(5) If the Court cancels the registration of an organisation, the Court
may direct that an application by the former organisation to be registered as an
organisation is not to be dealt with under this Act before the end of a
specified period.
(6) An alteration of rules determined by order under subsection (4)
takes effect on the date of the order or on such other day as is specified in
the order.
(7) A finding of fact by the Court in proceedings under section 127
or Part VIIIA of the Workplace Relations Act is admissible as prima facie
evidence of that fact in an application made on a ground specified in
paragraph (1)(d) or (e), as the case requires.
(1) If the Federal Court finds that a ground of an application under
subsection 28(1) has been established, the Court may, if it considers it just to
do so, instead of cancelling the registration of the organisation concerned
under subsection 28(3) or making an order under subsection 28(4), exercise one
or more of the powers set out in subsection (2) of this section.
(2) The powers that may be exercised by the Court, by order, under
subsection (1) are as follows:
(a) the power to suspend, to the extent specified in the order, any of the
rights, privileges or capacities of the organisation or of all or any of its
members, as such members, under this Act or any other Act , under awards or
orders made under this Act or any other Act or under certified agreements or old
IR agreements;
(b) the power to give directions as to the exercise of any rights,
privileges or capacities that have been suspended;
(c) the power to make provision restricting the use of the funds or
property of the organisation or a branch of the organisation, and for the
control of the funds or property for the purpose of ensuring observance of the
restrictions.
(3) If the Court exercises a power set out in subsection (2), it must
defer the determination of the question whether to cancel the registration of
the organisation concerned until:
(a) the orders made in the exercise of the power cease to be in force;
or
(b) on application by a party to the proceeding, the Court considers that
it is just to determine the question, having regard to any evidence given
relating to the observance or non-observance of any order and to any other
relevant circumstance;
whichever is earlier.
(4) An order made in the exercise of a power set out in
subsection (2) has effect in spite of anything in the rules of the
organisation concerned or a branch of the organisation.
(5) An order made in the exercise of a power set out in
subsection (2):
(a) may be revoked by the Court, by order, on application by a party to
the proceeding concerned; and
(b) unless sooner revoked, ceases to be in force:
(i) 6 months after it came into force; or
(ii) such longer period after it came into force as is ordered by the
Court on application by a party to the proceeding made while the order remains
in force.
(1) The Commission may cancel the registration of an
organisation:
(a) on application by the organisation made under the regulations;
or
(b) on application by an organisation or person interested or by the
Minister, if the Commission has satisfied itself, as prescribed, that the
organisation:
(i) was registered by mistake; or
(ii) is no longer effectively representative of the members who are
employers or employees, as the case requires; or
(iii) is not free from control by, or improper influence from, a person or
body referred to in paragraph 19(1)(b) or 20(1)(b), as the case requires;
or
(iv) subject to subsection (6), if the organisation is an enterprise
association—the enterprise to which it relates has ceased to exist;
or
(c) on the Commission’s own motion, if:
(i) the Commission has satisfied itself, as prescribed, that the
organisation is defunct; or
(ii) the organisation is an organisation of employees and has fewer than
50 members who are employees.
(2) Before the Commission cancels the registration of an organisation
under:
(a) paragraph (1)(b) on application by a person interested or by the
Minister; or
(b) paragraph (1)(c);
the Commission must give the organisation an opportunity to be
heard.
(3) The Commission may also cancel the registration of an organisation
if:
(a) the Commission is satisfied that the organisation has breached an
undertaking referred to in subsection 19(2); and
(b) the Commission does not consider it appropriate to amend the
eligibility rules of the organisation under section 157.
(4) A cancellation under subsection (3) may be made:
(a) on application by an organisation or person interested; or
(b) on application by the Minister; or
(c) on the Commission’s own motion.
(5) For the purposes of subparagraph (1)(b)(iv), the enterprise to
which an organisation relates has ceased to exist if:
(a) in the case of an organisation that relates only to an operationally
distinct part or parts of the business that constitutes the
enterprise—that part or those parts have ceased to exist, or the whole of
the business has ceased to exist; or
(b) in the case of an organisation that relates to the whole of the
business that constitutes the enterprise—the whole of the business has
ceased to exist.
(6) Subparagraph (1)(b)(iv) does not apply if:
(a) some or all of the business of the enterprise in question is now
conducted by another enterprise; and
(b) all the alterations that are necessary to enable the organisation to
operate as an enterprise association in relation to the other enterprise have
been made; and
(c) the Commission is satisfied that the organisation still meets the
requirements of subsection 20(1).
The Commission must give the organisation a reasonable opportunity to alter
its rules as provided in paragraph (b) before the Commission considers
cancelling the registration of the organisation on the ground referred to in
subparagraph (1)(b)(iv).
If the registration of an organisation under this Act is cancelled, the
Industrial Registrar must enter the cancellation, and the date of cancellation,
in the register kept under paragraph 13(1)(a).
The cancellation of the registration of an organisation under this Act
has the following consequences:
(a) the organisation ceases to be an organisation and a body corporate
under this Act, but does not because of the cancellation cease to be an
association;
(b) the cancellation does not relieve the association or any of its
members from any penalty or liability incurred by the organisation or its
members before the cancellation;
(c) from the cancellation, the association and its members are not
entitled to the benefits of any award, order of the Commission, certified
agreement or old IR agreement that bound the organisation or its
members;
(d) the Commission may, on application by an organisation or person
interested, make such order as the Commission considers appropriate about the
other effects (if any) of such an award, order or agreement on the association
and its members;
(e) 21 days after the cancellation, such an award, order or agreement
ceases, subject to any order made under paragraph (d), in all other
respects to have effect in relation to the association and its
members;
(f) the Federal Court may, on application by a person interested, make
such order as it considers appropriate in relation to the satisfaction of the
debts and obligations of the organisation out of the property of the
organisation;
(g) the property of the organisation is, subject to any order made under
paragraph (f), the property of the association and must be held and applied
for the purposes of the association under the rules of the organisation so far
as they can still be carried out or observed.
The powers of the Commission under this Chapter are exercisable only by a
Presidential Member.
The procedure for the amalgamation of 2 or more organisations is set out in
Part 2 of this Chapter.
The 2 main elements of the amalgamation procedure are an application to the
Commission seeking approval for a ballot to be held on the question of
amalgamation, and the holding of a ballot conducted by the Australian Electoral
Commission.
Part 2 also sets out the consequences of an amalgamation (for example,
in relation to assets and liabilities of the organisations forming the new
amalgamated organisation). It also enables the validation of certain acts done
for the purposes of an amalgamation.
The procedure that enables part of an amalgamated organisation to withdraw
from it is set out in Part 3 of this Chapter.
The main elements of the procedure to withdraw are an application to the
Federal Court for approval to hold a ballot on the question, and the holding of
the ballot.
Part 3 also sets out the consequences of a withdrawal from
amalgamation (for example, in relation to assets and liabilities of the
amalgamated organisation and the constituent part). It also enables the
validation of certain acts done for the purposes of a withdrawal from
amalgamation.
In this Part:
alternative provision means a provision of the kind mentioned
in subsection 41(1).
amalgamated organisation, in relation to a completed
amalgamation, means the organisation of which members of the de-registered
organisations have become members under paragraph 73(3)(d).
amalgamation day, in relation to a completed amalgamation,
means the day fixed under subsection 73(2) in relation to the
amalgamation.
asset means property of any kind, and includes:
(a) any legal or equitable estate or interest (whether present or future,
vested or contingent, tangible or intangible) in real or personal property of
any description; and
(b) any chose in action; and
(c) any right, interest or claim of any kind in, or in relation to,
property (whether arising under an instrument or otherwise, and whether
liquidated or unliquidated, certain or contingent, accrued or
accruing).
authorised person, in relation to a completed amalgamation,
means the secretary of the amalgamated organisation or a person authorised, in
writing, by the committee of management of the amalgamated
organisation.
charge means a charge created in any way, and includes a
mortgage and an agreement to give or execute a charge or mortgage (whether on
demand or otherwise).
closing day, in relation to a ballot for a proposed
amalgamation, means the day, from time to time, fixed under section 58 as
the closing day of the ballot.
commencing day, in relation to a ballot for a proposed
amalgamation, means the day, from time to time, fixed under section 58 as
the commencing day of the ballot.
completed amalgamation means a proposed amalgamation that has
taken effect.
debenture has the same meaning as in section 9 of the
Corporations Act 2001.
defect includes a nullity, omission, error or
irregularity.
de-registered organisation, in relation to a completed
amalgamation, means an organisation that has been de-registered under this
Part.
de-registration, in relation to an organisation, means the
cancellation of its registration.
holder, in relation to a charge, includes a person in whose
favour a charge is to be given or executed (whether on demand or otherwise)
under an agreement.
instrument means an instrument of any kind, and
includes:
(a) any contract, deed, undertaking or agreement; and
(b) any mandate, instruction, notice, authority or order; and
(c) any lease, licence, transfer, conveyance or other assurance;
and
(d) any guarantee, bond, power of attorney, bill of lading, negotiable
instrument or order for the payment of money; and
(e) any mortgage, charge, lien or security;
whether express or implied and whether made or given orally or in
writing.
instrument to which this Part applies, in relation to a
completed amalgamation, means an instrument:
(a) to which a de-registered organisation is a party; or
(b) that was given to, by, or in favour of, a de-registered organisation;
or
(c) in which a reference is made to a de-registered organisation;
or
(d) under which any money is or may become payable, or any other property
is to be, or may become liable to be, transferred, conveyed or assigned, to or
by a de-registered organisation.
interest:
(a) in relation to a company—includes an interest in a managed
investment scheme, within the meaning of the Corporations Act 2001, made
available by the company; and
(b) in relation to land—means:
(i) a legal or equitable estate or interest in the land; or
(ii) a right, power or privilege over, or in relation to, the
land.
invalidity includes a defect.
irregularity includes a breach of the rules of an
organisation, but in Division 7 does not include an irregularity in
relation to a ballot.
liability means a liability of any kind, and includes an
obligation of any kind (whether arising under an instrument or otherwise, and
whether liquidated or unliquidated, certain or contingent, accrued or
accruing).
proceeding to which this Part applies, in relation to a
completed amalgamation, means a proceeding to which a de-registered organisation
was a party immediately before the amalgamation day.
proposed alternative amalgamation, in relation to a proposed
amalgamation, means an amalgamation proposed to be made under an alternative
provision.
proposed amalgamated organisation, in relation to a proposed
amalgamation, means the organisation or proposed organisation of which members
of the proposed de-registering organisations are proposed to become members
under this Part.
proposed amalgamation means the proposed carrying out of
arrangements in relation to 2 or more organisations under which:
(a) an organisation is, or 2 or more organisations are, to be
de-registered under this Part; and
(b) members of the organisation or organisations to be de-registered are
to become members of another organisation (whether existing or
proposed).
proposed de-registering organisation, in relation to a
proposed amalgamation, means an organisation that is to be de-registered under
this Part.
proposed principal amalgamation, in relation to a proposed
amalgamation, means:
(a) if the scheme for the amalgamation contains an alternative
provision—the amalgamation proposed to be made under the scheme otherwise
than under an alternative provision; or
(b) in any other case—the proposed amalgamation.
(1) For the purpose of implementing the scheme for a proposed
amalgamation, the procedure provided by this Part is to be followed.
(2) Where it appears to the Commission that the performance of an act,
including:
(a) the de-registration of an organisation; and
(b) the registration of an organisation; and
(c) the giving of consent to:
(i) a change in the name of an organisation; or
(ii) an alteration of the eligibility rules of an organisation;
is sought for the purposes of a proposed amalgamation, the Commission may
perform the act only in accordance with this Part.
(3) If any difficulty arises, or appears likely to arise, in the
application of this Act for the purpose of implementing the scheme for a
proposed amalgamation, the Commission may give directions and make orders to
resolve the difficulty.
(4) Directions and orders under subsection (3):
(a) have effect subject to any order of the Federal Court; and
(b) have effect despite anything in:
(i) the regulations or the Rules of the Commission; or
(ii) the rules of an organisation or any association proposed to be
registered as an organisation.
The powers of the Commission under this Part are exercisable only by a
Presidential Member.
Application for recognition as federation
(1) The existing organisations concerned in a proposed amalgamation may
jointly lodge in the Industrial Registry an application for recognition as a
federation.
(2) The application must:
(a) be lodged before an application is lodged under section 44 in
relation to the amalgamation; and
(b) include such particulars as are prescribed.
Grant of application
(3) If the Commission is satisfied that the organisations intend to lodge
an application under section 44 in relation to the amalgamation within the
prescribed period, the Commission must grant the application for recognition as
a federation.
Registration of federation
(4) If the application is granted, the Industrial Registrar must enter in
the register kept under paragraph 13(1)(a) such details in relation to the
federation as are prescribed.
Representation rights of federation
(5) On registration, the federation may, subject to subsection (6)
and the regulations, represent its constituent members for all of the purposes
of this Act and the Workplace Relations Act.
(6) Subsection (5) does not authorise the federation to become a
party to an award or to become bound by a certified agreement or old IR
agreement.
Federation may vary its composition
(7) After the federation is registered, it may vary its composition
by:
(a) including, with the approval of the Commission, another organisation
within the federation if the other organisation intends to become concerned in
the amalgamation; or
(b) releasing, with the approval of the Commission, an organisation from
the federation.
When federation ceases to exist
(8) The federation ceases to exist:
(a) on the day on which the amalgamation takes effect; or
(b) if an application under section 44 is not lodged in relation to
the amalgamation within the prescribed period—on the day after the end of
the period; or
(c) if it appears to a Full Bench, on an application by a prescribed
person, that the industrial conduct of the federation, or an organisation
belonging to the federation, is preventing or hindering the attainment of an
object of this Act or the Workplace Relations Act—on the day the Full
Bench so determines.
Federation does not limit representation rights of
organisations
(9) Nothing in this section limits the right of an organisation belonging
to a federation to represent itself or its members.
(1) An existing organisation concerned in a proposed amalgamation may, at
any time before the closing day of the ballot for the amalgamation, use its
financial and other resources in support of the proposed principal amalgamation
and any proposed alternative amalgamation if:
(a) the committee of management of the organisation has resolved that the
organisation should so use its resources; and
(b) the committee of management has given reasonable notice of its
resolution to the members of the organisation.
(2) Subsection (1) does not limit by implication any power that the
existing organisation has, apart from that subsection, to use its financial and
other resources in support of, or otherwise in relation to, the
amalgamation.
(1) There is to be a scheme for every proposed amalgamation.
(2) The scheme must contain the following matters:
(a) a general statement of the nature of the amalgamation, identifying the
existing organisations concerned and indicating:
(i) if one of the existing organisations is the proposed amalgamated
organisation—that fact; and
(ii) if an association proposed to be registered as an organisation is the
proposed amalgamated organisation—that fact and the name of the
association; and
(iii) the proposed de-registering organisations;
(b) if it is proposed to change the name of an existing
organisation—particulars of the proposed change;
(c) if it is proposed to alter the eligibility rules of an existing
organisation—particulars of the proposed alterations;
(d) if it is proposed to alter any other rules of an existing
organisation—particulars of the proposed alterations;
(e) if an association is proposed to be registered as an
organisation—the eligibility and other rules of the association;
(f) such other matters as are prescribed.
(3) Subsection (2) does not limit by implication the matters that the
scheme may contain.
(1) Where 3 or more existing organisations are concerned in a proposed
amalgamation, the scheme for the amalgamation may contain a provision to the
effect that, if:
(a) the members of one or more of the organisations do not approve the
amalgamation; and
(b) the members of 2 or more of the organisations (in this subsection
called the approving organisations) approve, in the alternative,
the amalgamation so far as it involves:
(i) the other of the approving organisations; or
(ii) 2 or more of the other approving organisations; and
(c) where one of the existing organisations is the proposed amalgamated
organisation—that organisation is one of the approving
organisations;
there is to be an amalgamation involving the approving
organisations.
(2) If the scheme for a proposed amalgamation contains an alternative
provision, the scheme must also contain particulars of:
(a) the differences between the proposed principal amalgamation and each
proposed alternative amalgamation; and
(b) the differences between the rules of any association proposed to be
registered as an organisation, and any proposed alterations of the rules of the
existing organisations, under the proposed principal amalgamation and each
proposed alternative amalgamation.
(1) The scheme for a proposed amalgamation, and each alteration of the
scheme, must be approved, by resolution, by the committee of management of each
existing organisation concerned in the amalgamation.
(2) Despite anything in the rules of an existing organisation, approval,
by resolution, by the committee of management of the scheme, or an alteration of
the scheme, is taken to be sufficient compliance with the rules, and any
proposed alteration of the rules contained in the scheme, or the scheme as
altered, is taken to have been properly made under the rules.
Existing organisations may apply for declaration
(1) The existing organisations concerned in a proposed amalgamation may
jointly lodge in the Industrial Registry an application for a declaration under
this section in relation to the amalgamation.
(2) The application must be lodged:
(a) before an application has been lodged under section 44 in
relation to the amalgamation; or
(b) with the application that is lodged under section 44 in relation
to the amalgamation.
(3) If the application is lodged before an application has been lodged
under section 44 in relation to the amalgamation, the Commission:
(a) must immediately fix a time and place for hearing submissions in
relation to the making of the declaration; and
(b) must ensure that all organisations are promptly notified of the time
and place of the hearing; and
(c) may inform any other person who is likely to be interested of the time
and place of the hearing.
Making of declaration
(4) If, at the conclusion of the hearing arranged under
subsection (3) or section 53 in relation to the proposed amalgamation,
the Commission is satisfied that there is a community of interest between the
existing organisations in relation to their industrial interests, the Commission
must declare that it is so satisfied.
Pre-conditions to making of declaration
(5) The Commission must be satisfied, for the purposes of
subsection (4), that there is a community of interest between organisations
of employees in relation to their industrial interests if the Commission is
satisfied that a substantial number of members of one of the organisations
are:
(a) eligible to become members of the other organisation or each of the
other organisations; or
(b) engaged in the same work or in aspects of the same or similar work as
members of the other organisation or each of the other organisations;
or
(c) bound by the same awards as members of the other organisation or each
of the other organisations; or
(d) employed in the same or similar work by employers engaged in the same
industry as members of the other organisation or each of the other
organisations; or
(e) engaged in work, or in industries, in relation to which there is a
community of interest with members of the other organisation or each of the
other organisations.
(6) The Commission must be satisfied, for the purposes of
subsection (4), that there is a community of interest between organisations
of employers in relation to their industrial interests if the Commission is
satisfied that a substantial number of members of one of the organisations
are:
(a) eligible to become members of the other organisation or each of the
other organisations; or
(b) engaged in the same industry or in aspects of the same industry or
similar industries as members of the other organisation or each of the other
organisations; or
(c) bound by the same awards as members of the other organisation or each
of the other organisations; or
(d) engaged in industries in relation to which there is a community of
interest with members of the other organisation or each of the other
organisations.
(7) Subsections (5) and (6) do not limit by implication the
circumstances in which the Commission may be satisfied, for the purposes of
subsection (4), that there is a community of interest between organisations
in relation to their industrial interests.
Circumstances in which declaration ceases to be in force
(8) If:
(a) an application for a declaration under this section in relation to a
proposed amalgamation is lodged before an application has been lodged under
section 44 in relation to the amalgamation; and
(b) a declaration is made under this section in relation to the
amalgamation; and
(c) an application is not lodged under section 44 in relation to the
amalgamation within 6 months after the declaration is made;
the declaration ceases to be in force.
(9) The Commission may revoke a declaration under this section if the
Commission is satisfied that there is no longer a community of interest between
the organisations concerned in relation to their industrial interests.
(10) However, before the Commission revokes the declaration, it
must:
(a) give reasonable notice of its intention to revoke to each of the
organisations that applied for the declaration; and
(b) give each of those organisations an opportunity to be heard.
(1) The existing organisations concerned in a proposed amalgamation, and
any association proposed to be registered as an organisation under the
amalgamation, must jointly lodge in the Industrial Registry an application for
approval for the submission of the amalgamation to ballot.
(2) The application must be accompanied by:
(a) a copy of the scheme for the amalgamation; and
(b) a written outline of the scheme.
(3) Subject to section 62, the outline must, in no more than 3,000
words, provide sufficient information on the scheme to enable members of the
existing organisations to make informed decisions in relation to the
scheme.
(1) The rules of:
(a) an association proposed to be registered as an organisation that is
the proposed amalgamated organisation under a proposed amalgamation;
or
(b) an existing organisation that is the proposed amalgamated organisation
under a proposed amalgamation;
may, despite section 143, make provision in relation to:
(c) the holding of office in the proposed amalgamated organisation by
persons holding office in any of the proposed de-registering organisations
immediately before the amalgamation takes effect; and
(d) in a case to which paragraph (b) applies—the continuation
of the holding of office by persons holding office in the proposed amalgamated
organisation immediately before the amalgamation takes effect;
but the rules may not permit an office to be held under paragraph (c)
or (d) for longer than:
(e) the period that equals the unexpired part of the term of the office
held by the person immediately before the day on which the amalgamation takes
effect; or
(f) the period that ends 2 years after that day;
whichever ends last, without an ordinary election being held in relation to
the office.
(2) Where:
(a) a person holds an office in an organisation, being an office held
under rules made under subsection (1); and
(b) that organisation is involved in a proposed amalgamation;
the rules of the proposed amalgamated organisation must not permit the
person to hold an office in the proposed amalgamated organisation after the
amalgamation takes effect, without an ordinary election being held in relation
to the office, for longer than the period that equals the unexpired part of the
term of the office mentioned in paragraph (a) immediately before the day on
which the amalgamation takes effect.
(3) The rules of an organisation that is the proposed amalgamated
organisation under a proposed amalgamation must, subject to this section, make
reasonable provision for the purpose of synchronising elections for offices in
the organisation held under paragraph (1)(c) with elections for other
offices in the organisation.
(4) Section 145 does not apply to an office held under rules made
under subsection (1).
(5) Section 146 applies to an office held under rules made under
paragraph (1)(c).
(6) In this section:
ordinary election means an election held under rules that
comply with section 143.
(1) The proposed amalgamated organisation under a proposed amalgamation
may lodge in the Industrial Registry an application for exemption from the
requirement that a ballot of its members be held in relation to the
amalgamation.
(2) The application must be lodged with the application that is lodged
under section 44 in relation to the amalgamation.
(1) An existing organisation concerned in a proposed amalgamation may
lodge in the Industrial Registry an application for approval of a proposal for
the submission of the amalgamation to a ballot of its members that is not
conducted under section 65.
(2) The application must be lodged with the application that is lodged
under section 44 in relation to the amalgamation.
(1) Subject to section 60, an existing organisation concerned in a
proposed amalgamation may lodge a written statement of not more than 2,000 words
in support of the proposed principal amalgamation and each proposed alternative
amalgamation.
(2) The statement must be lodged with the application that is lodged under
section 44 in relation to the amalgamation.
All ballots under this Part are to be conducted by the AEC.
(1) Where an application is lodged under section 44 in relation to a
proposed amalgamation, the Industrial Registrar must immediately notify the AEC
of the application.
(2) On being notified of the application, the AEC must immediately take
such action as it considers necessary or desirable to enable it to conduct as
quickly as possible any ballots that may be required in relation to the
amalgamation.
(1) An electoral official who is authorised, in writing, by the AEC for
the purposes of a proposed amalgamation may, where it is reasonably necessary
for the purposes of any ballot that may be required or is required in relation
to the amalgamation, by written notice, require an officer or employee of the
organisation concerned or a branch of the organisation concerned:
(a) to give to the electoral official, within the period (being a period
of not less than 7 days after the notice is given), and in the manner, specified
in the notice, any information within the knowledge or in the possession of the
person; and
(b) to produce or make available to the electoral official, at a
reasonable time (being a time not less than 7 days after the notice is given)
and place specified in the notice, any documents:
(i) in the custody or under the control of the person; or
(ii) to which the person has access.
(2) An officer or employee of an organisation or branch of an organisation
commits an offence if he or she fails to comply with a requirement made under
subsection (1).
Maximum penalty: 30 penalty units.
(3) An offence against subsection (2) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(4) Subsection (2) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter mentioned in subsection (4), see subsection 13.3(3) of the
Criminal Code.
(5) A person is not excused from giving information or producing or making
available a document under this section on the ground that the information or
the production or making available of the document might tend to incriminate the
person or expose the person to a penalty.
(6) However:
(a) giving the information or producing or making available the document;
or
(b) any information, document or thing obtained as a direct or indirect
consequence of giving the information or producing or making available the
document;
is not admissible in evidence against the person in criminal proceedings or
proceedings that may expose the person to a penalty, other than proceedings
under, or arising out of, subsection 52(3).
(7) If any information or document specified in a notice under
subsection (1) is kept in electronic form, the electoral official may
require it to be made available in that form.
(1) If a requirement is made under subsection 51(1) in relation to the
register, or part of the register, kept by an organisation under
section 230, the secretary or other prescribed officer of the organisation
must make a declaration, in accordance with subsection (2), that the
register has been maintained as required by subsection 230(2).
Note: This subsection is a civil penalty provision (see
section 305).
(2) The declaration must be:
(a) signed by the person making it; and
(b) given to the returning officer, and lodged in the Industrial Registry,
as soon as practicable but no later than the day before the first day of voting
in the relevant election.
(3) A person must not, in a declaration for the purposes of
subsection (1), make a statement if the person knows, or is reckless as to
whether, the statement is false or misleading.
Note: This subsection is a civil penalty provision (see
section 305).
Where an application is lodged under section 44 in relation to a
proposed amalgamation, the Commission:
(a) must immediately fix a time and place for hearing submissions in
relation to:
(i) the granting of an approval for the submission of the amalgamation to
ballot; and
(ii) if an application for a declaration under section 43 was lodged
with the application—the making of a declaration under section 43 in
relation to the amalgamation; and
(iii) if an application was lodged under section 46 for exemption
from the requirement that a ballot be held in relation to the
amalgamation—the granting of the exemption; and
(iv) if an application was lodged under section 47 for approval of a
proposal for the submission of the amalgamation to a ballot that is not
conducted under section 65—the granting of the approval;
and
(b) must ensure that all organisations are promptly notified of the time
and place of the hearing; and
(c) may inform any other person who is likely to be interested of the time
and place of the hearing.
(1) Submissions at a hearing arranged under subsection 43(3) or
section 53 may only be made under this section.
(2) Submissions may be made by the applicants.
(3) Submissions may be made by another person only with the leave of the
Commission and may be made by the person only in relation to a prescribed
matter.
Approval must be given if certain conditions satisfied
(1) If, at the conclusion of the hearing arranged under section 53 in
relation to a proposed amalgamation, the Commission is satisfied that:
(a) the amalgamation does not involve the registration of an association
as an organisation; and
(b) a person who is not eligible for membership of an existing
organisation concerned in the amalgamation would not be eligible for membership
of the proposed amalgamated organisation immediately after the amalgamation
takes effect; and
(c) any proposed alteration of the name of an existing organisation
concerned in the amalgamation will not result in the organisation having a name
that is the same as the name of another organisation or is so similar to the
name of another organisation as to be likely to cause confusion; and
(d) any proposed alterations of the rules of an existing organisation
comply with, and are not contrary to, this Act, the Workplace Relations Act,
awards, certified agreements and old IR agreements, and are not contrary to law;
and
(e) any proposed de-registration of an existing organisation complies with
this Act and is not otherwise contrary to law;
the Commission must approve the submission of the amalgamation to
ballot.
Approval generally refused if conditions not satisfied
(2) If the Commission is not satisfied, the Commission must, subject to
subsections (3) and (7), refuse to approve, under this section, the
submission of the amalgamation to ballot.
Approval may be given if conditions will be satisfied
later
(3) If, apart from this subsection, the Commission would be required to
refuse to approve the submission of the amalgamation to ballot, the Commission
may:
(a) permit the applicants to alter the scheme for the amalgamation,
including any proposed alterations of the rules of the existing organisations
concerned in the amalgamation; or
(b) accept an undertaking by the applicants to alter the scheme for the
amalgamation, including any proposed alterations of the rules of the existing
organisations concerned in the amalgamation;
and, if the Commission is satisfied that the matters mentioned in
subsection (1) will be met, the Commission must approve the submission of
the amalgamation to ballot.
Permission to alter amalgamation scheme
(4) A permission under paragraph (3)(a):
(a) may, despite anything in the rules of an existing organisation
concerned in the proposed amalgamation, authorise the organisation to alter the
scheme (including any proposed alterations of the rules of the organisation) by
resolution of its committee of management; and
(b) may make provision in relation to the procedure that, despite anything
in those rules, may be followed, or is to be followed, by the committee of
management in that regard; and
(c) may be given subject to conditions.
Powers of Commission if conditions or undertakings
breached
(5) If:
(a) the Commission:
(i) gives a permission under paragraph (3)(a) subject to conditions;
or
(ii) accepts an undertaking under paragraph (3)(b); and
(b) the conditions are breached or the undertaking is not fulfilled within
the period allowed by the Commission;
the Commission may:
(c) amend the scheme for the amalgamation, including any proposed
alterations of the rules of the existing organisations concerned in the proposed
amalgamation; or
(d) give directions and orders:
(i) in relation to the conduct of the ballot for the amalgamation;
or
(ii) otherwise in relation to the procedure to be followed in relation to
the amalgamation.
(6) Subsection (5) does not limit by implication the powers that the
Commission has apart from that subsection.
Powers of Commission to adjourn proceeding
(7) If, apart from this subsection, the Commission would be required to
refuse to approve the submission of the amalgamation to ballot, the Commission
may adjourn the proceeding.
(8) Subsection (7) does not limit by implication the power of the
Commission to adjourn the proceeding at any stage.
(1) Objection to a matter involved in a proposed amalgamation may only be
made to the Commission under this section.
(2) Objection may be made to the Commission in relation to the
amalgamation only if the Commission has refused to approve, under
section 55, the submission of the amalgamation to ballot.
(3) Objection may be made by a prescribed person on a prescribed
ground.
(4) The Commission is to hear, as prescribed, all objections duly made to
the amalgamation.
Approval must be given if certain conditions satisfied
(1) If, after the prescribed time allowed for making objections under
section 56 in relation to a proposed amalgamation and after hearing any
objections duly made to the amalgamation, the Commission:
(a) finds that no duly made objection is justified; and
(b) is satisfied that, so far as the amalgamation involves:
(i) the registration of an association; or
(ii) a change in the name of an organisation; or
(iii) an alteration of the rules of an organisation; or
(iv) the de-registration of an organisation under this Part;
it complies with, and is not contrary to, this Act, the Workplace
Relations Act, awards, certified agreements and old IR agreements and is not
otherwise contrary to law;
the Commission must approve the submission of the amalgamation to
ballot.
Approval generally refused if conditions not satisfied
(2) If the Commission is not satisfied, the Commission must, subject to
subsections (3) and (8), refuse to approve, under this section, the
submission of the amalgamation to ballot.
Approval may be given if conditions will be satisfied
later
(3) If, apart from this subsection, the Commission would be required to
refuse to approve the submission of the amalgamation to ballot, the Commission
may:
(a) permit the applicants to alter the scheme for the amalgamation,
including:
(i) the rules of any association proposed to be registered as an
organisation in relation to the amalgamation; or
(ii) any proposed alterations of the rules of the existing organisations
concerned in the amalgamation; or
(b) accept an undertaking by the applicants to alter the scheme for the
amalgamation, including:
(i) the rules of any association proposed to be registered as an
organisation in relation to the amalgamation; or
(ii) any proposed alterations of the rules of the existing organisations
concerned in the amalgamation;
and, if the Commission is satisfied that the matters mentioned in
subsection (1) will be met, the Commission must approve the submission of
the amalgamation to ballot.
Permission to alter amalgamation scheme
(4) A permission under subparagraph (3)(a)(i):
(a) may, despite anything in the rules of any association proposed to be
registered as an organisation in relation to the proposed amalgamation,
authorise the existing organisations concerned in the amalgamation to alter the
scheme so far as it affects that association (including any of its rules) by
resolution of their committees of management; and
(b) may make provision in relation to the procedure that, despite anything
in the rules of the existing organisations or the rules of the association, may
be followed, or is to be followed, by the committees of management in that
regard; and
(c) may be given subject to conditions.
(5) A permission under subparagraph (3)(a)(ii):
(a) may, despite anything in the rules of an existing organisation
concerned in the proposed amalgamation, authorise the organisation to alter the
scheme (including any proposed alterations of the rules of the organisation, but
not including the scheme so far as it affects any association proposed to be
registered as an organisation in relation to the proposed amalgamation) by
resolution of its committee of management; and
(b) may make provision in relation to the procedure that, despite anything
in those rules, may be followed, or is to be followed, by the committee of
management in that regard; and
(c) may be given subject to conditions.
Powers of Commission if conditions or undertakings
breached
(6) If:
(a) the Commission:
(i) gives a permission under paragraph (3)(a) subject to conditions;
or
(ii) accepts an undertaking under paragraph (3)(b); and
(b) the conditions are breached or the undertaking is not fulfilled within
the period allowed by the Commission;
the Commission may:
(c) amend the scheme for the amalgamation, including:
(i) the rules of any association proposed to be registered as an
organisation in relation to the amalgamation; or
(ii) any proposed alterations of the rules of the existing organisations
concerned in the amalgamation; or
(d) give directions and orders:
(i) in relation to the conduct of the ballot for the amalgamation;
or
(ii) otherwise in relation to the procedure to be followed in relation to
the amalgamation.
(7) Subsection (6) does not limit by implication the powers that the
Commission has apart from that subsection.
Powers of Commission to adjourn proceeding
(8) If, apart from this subsection, the Commission would be required to
refuse to approve the submission of the amalgamation to ballot, the Commission
may adjourn the proceeding.
(9) Subsection (8) does not limit by implication the power of the
Commission to adjourn the proceeding at any stage.
(1) If the Commission approves, under section 55 or 57, the
submission of a proposed amalgamation to ballot, the Commission must, after
consulting with the Electoral Commissioner, fix a day as the commencing day of
the ballot and a day as the closing day of the ballot.
(2) The commencing day must be a day not later than 28 days after the day
on which the approval is given unless:
(a) the Commission is satisfied that the AEC requires a longer period to
make the arrangements necessary to enable it to conduct the ballot; or
(b) the existing organisations concerned in the amalgamation request the
Commission to fix a later day.
(3) If the scheme for the amalgamation contains a proposed alternative
provision, a single day is to be fixed as the commencing day, and a single day
is to be fixed as the closing day, for all ballots in relation to the proposed
amalgamation.
(4) The Commission may, after consulting with the Electoral Commissioner,
vary the commencing day or the closing day.
(5) Subsection (4) does not limit by implication the powers of the
person conducting a ballot under this Part.
The roll of voters for a ballot for a proposed amalgamation is the roll
of persons who, on the day on which the Commission fixes the commencing day and
closing day of the ballot or 28 days before the commencing day of the ballot
(whichever is the later):
(a) have the right under the rules of the existing organisation concerned
to vote at such a ballot; or
(b) if the rules of the existing organisation concerned do not then
provide for the right to vote at such a ballot—have the right under the
rules of the organisation to vote at a ballot for an election for an office in
the organisation that is conducted by a direct voting system.
“Yes” statement may be altered
(1) If an existing organisation concerned in a proposed amalgamation
lodges a statement under section 48 in relation to the amalgamation, the
Commission may permit the organisation to alter the statement.
Members of organisation may lodge “no”
statement
(2) Not later than 7 days before the day fixed under section 53 for
hearing submissions in relation to the amalgamation, members of the organisation
(being members whose number is at least the required minimum number) may lodge
in the Industrial Registry a written statement of not more than 2,000 words in
opposition to the proposed principal amalgamation and any proposed alternative
amalgamation.
“No” statement may be altered
(3) The Commission may permit a statement lodged under subsection (2)
to be altered.
“Yes” and “no” statements to be sent to
voters
(4) Subject to subsections (5), (6) and (7), a copy of the statements
mentioned in subsections (1) and (2), or, if those statements have been
altered or amended, those statements as altered or amended, must accompany the
ballot paper sent to the persons entitled to vote at a ballot for the
amalgamation.
2 or more “no” statements must be combined
(5) If 2 or more statements in opposition to the amalgamation are duly
lodged in the Industrial Registry under subsection (2):
(a) the Commission must prepare, or cause to be prepared, in consultation,
if practicable, with representatives of the persons who lodged each of the
statements, a written statement of not more than 2,000 words in opposition to
the amalgamation based on both or all the statements and, as far as practicable,
presenting fairly the substance of the arguments against the amalgamation
contained in both or all the statements; and
(b) the statement prepared by the Commission must accompany the ballot
paper for the amalgamation as if it had been the sole statement lodged under
subsection (2).
Commission may correct factual errors in statements
(6) The Commission may amend a statement mentioned in subsection (1)
or (2) to correct factual errors or to ensure that the statement complies with
this Act.
Statements may include photos etc. if Commission approves
(7) A statement mentioned in subsection (1) or (2) may, if the
Commission approves, include matter that is not in the form of words, including,
for example, diagrams, drawings, illustrations, photographs and
symbols.
(8) A statement prepared under subsection (5) may include matter that
is not in the form of words, including, for example, diagrams, drawings,
illustrations, photographs and symbols.
Certain statements not required to be sent to voters
(9) Subsection (4) and paragraph (5)(b) do not apply to a ballot
that is not conducted under section 65.
Note: Ballots conducted under section 65 are secret
postal ballots.
Definition
(10) In this section:
required minimum number, in relation to an organisation,
means:
(a) 5% of the total number of members of the organisation on the day on
which the application was lodged under section 44 in relation to the
proposed amalgamation concerned; or
(b) 1,000;
whichever is the lesser.
Permission to alter amalgamation scheme
(1) The Commission may, at any time before the commencing day of the
ballot for a proposed amalgamation, permit the existing organisations concerned
in the amalgamation to alter the scheme for the amalgamation,
including:
(a) the rules of any association proposed to be registered as an
organisation in relation to the amalgamation; or
(b) any proposed alterations of the rules of the existing organisations
concerned in the amalgamation.
Permission relating to rules of new organisations
(2) A permission under paragraph (1)(a):
(a) may, despite anything in the rules of any association proposed to be
registered as an organisation in relation to the proposed amalgamation,
authorise the existing organisations concerned in the amalgamation to alter the
scheme so far as it affects that association (including any of its rules) by
resolution of their committees of management; and
(b) may make provision in relation to the procedure that, despite anything
in the rules of the existing organisations or the rules of the association, may
be followed, or is to be followed, by the committees of management in that
regard; and
(c) may be given subject to conditions.
Permission relating to rules of existing organisations
(3) A permission under paragraph (1)(b):
(a) may, despite anything in the rules of an existing organisation
concerned in a proposed amalgamation, authorise the organisation to amend the
scheme (including any proposed alterations of the rules of the organisation, but
not including the scheme so far as it affects any association proposed to be
registered as an organisation in relation to the proposed amalgamation) by
resolution of its committee of management; and
(b) may make provision in relation to the procedure that, despite anything
in those rules, may be followed, or is to be followed, by the committee of
management in that regard; and
(c) may be given subject to conditions.
Powers of Commission if conditions breached
(4) If:
(a) the Commission gives a permission under subsection (1) subject to
conditions; and
(b) the conditions are breached;
the Commission may:
(c) amend the scheme for the amalgamation, including:
(i) the rules of any association proposed to be registered as an
organisation in relation to the amalgamation; or
(ii) any proposed alterations of the rules of the existing organisations
concerned in the amalgamation; or
(d) give directions and orders:
(i) in relation to the conduct of the ballot for the amalgamation;
or
(ii) otherwise in relation to the procedure to be followed in relation to
the amalgamation.
(5) Subsection (4) does not limit by implication the powers that the
Commission has apart from that subsection.
Outline of scheme must change if scheme changes
(6) If the scheme for the amalgamation is altered or amended (whether
under this section or otherwise), the outline of the scheme must be altered or
amended to the extent necessary to reflect the alterations or
amendments.
(1) The outline of the scheme for a proposed amalgamation may, if the
Commission approves, consist of more than 3,000 words.
(2) The outline may, if the Commission approves, include matter that is
not in the form of words, including, for example, diagrams, drawings,
illustrations, photographs and symbols.
(3) The Commission:
(a) may, at any time before the commencing day of the ballot for the
amalgamation, permit the existing organisations concerned in the amalgamation to
alter the outline; and
(b) may amend the outline to correct factual errors or otherwise to ensure
that it complies with this Act.
(1) If:
(a) an application was lodged under section 46 for exemption from the
requirement that a ballot be held in relation to a proposed amalgamation;
and
(b) the total number of members that could be admitted to membership of
the proposed amalgamated organisation on, and because of, the amalgamation does
not exceed 25% of the number of members of the applicant organisation on the day
on which the application was lodged;
the Commission must, at the conclusion of the hearing arranged under
section 53 in relation to the amalgamation, grant the exemption unless the
Commission considers that, in the special circumstances of the case, the
exemption should be refused.
(2) If the exemption is granted, the members of the applicant organisation
are taken to have approved the proposed principal amalgamation and each proposed
alternative amalgamation (if any).
If:
(a) an application was lodged under section 47 for approval of a
proposal for submission of a proposed amalgamation to ballot that is not
conducted under section 65; and
(b) the proposal provides for:
(i) the ballot to be by secret ballot of the members of the organisation;
and
(ii) the ballot to be held at duly constituted meetings of the members;
and
(iii) the ballot to be conducted by the AEC; and
(iv) the members to be given at least 21 days’ notice of the
meetings, the matters to be considered at the meetings and their entitlement to
an absent vote; and
(v) the distribution or publication of:
(A) the outline of the scheme for the amalgamation; and
(B) the statements mentioned in subsections 60(1) and (2); and
(vi) absent voting; and
(vii) the ballot to be otherwise conducted in accordance with the
regulations; and
(c) the Commission is satisfied, after consulting with the Electoral
Commissioner:
(i) that the proposal is practicable; and
(ii) that approval of the proposal is likely:
(A) to result in participation by members of the organisation that is
fuller than the participation that would have been likely to have resulted if
the ballot were conducted under section 65; and
(B) to give the members of the organisation an adequate opportunity to
vote on the amalgamation without intimidation;
the Commission must, at the conclusion of the hearing arranged under
section 53 in relation to the amalgamation, approve the proposal.
Ballot on proposed principal amalgamation
(1) If the Commission approves, under section 55 or 57, the
submission of a proposed amalgamation to ballot, the AEC must, in relation to
each of the existing organisations concerned in the amalgamation, conduct a
secret postal ballot of the members of the organisation on the question whether
they approve the proposed principal amalgamation.
Ballot at same time on proposed alternative amalgamation
(2) If the scheme for the amalgamation contains a proposed alternative
provision, the AEC must also conduct, at the same time and in the same way as
the ballot under subsection (1), a ballot of the members of each of the
existing organisations on the question or questions whether, if the proposed
principal amalgamation does not take place, they approve the proposed
alternative amalgamation or each proposed alternative amalgamation.
Same ballot paper to be used for both ballots
(3) If, under subsection (2), the AEC is required to conduct 2 or
more ballots of the members of an organisation at the same time, the same ballot
paper is to be used for both or all the ballots.
Counting of votes in alternative amalgamation ballot
(4) A person conducting a ballot under subsection (2) need not count
the votes in the ballot if the person is satisfied that the result of the ballot
will not be required to be known for the purposes of this Act.
Copy of outline to be sent to voters
(5) A copy of the outline of the scheme for the amalgamation as lodged
under this Part, or, if the scheme has been altered or amended, a copy of the
outline of the scheme as altered or amended, is to accompany the ballot paper
sent to a person entitled to vote at the ballot.
Conduct of ballot
(6) In a ballot conducted under this section, each completed ballot paper
must be returned to the AEC in the declaration envelope provided to the voter
with the ballot paper.
(7) The declaration envelope must be in the approved form.
(8) Subject to this section, a ballot conducted under this section is to
be conducted as prescribed.
Organisation may be exempt from requirements of this
section
(9) This section does not apply to an existing organisation concerned in
the amalgamation if:
(a) the Commission has granted the organisation an exemption under
section 63 from the requirement that a ballot be held in relation to the
proposed amalgamation; or
(b) the Commission has approved under section 64 a proposal by the
organisation for the submission of the amalgamation to a ballot that is not
conducted under this section.
Where the question of a proposed amalgamation is submitted to a ballot of
the members of an existing organisation concerned in the amalgamation, the
members of the organisation approve the amalgamation if, and only if:
(a) where a declaration under section 43 is in force in relation to
the proposed amalgamation—more than 50% of the formal votes cast in the
ballot are in favour of the amalgamation; or
(b) in any other case:
(i) at least 25% of the members on the roll of voters cast a vote in the
ballot; and
(ii) more than 50% of the formal votes cast are in favour of the
amalgamation.
(1) If:
(a) the question of a proposed amalgamation is submitted to a ballot of
the members of an existing organisation; and
(b) the members of the organisation do not approve the
amalgamation;
the existing organisations concerned in the amalgamation may jointly lodge
in the Industrial Registry a further application under section 44 for
approval for the submission of the amalgamation to ballot.
(2) If the application is lodged within 12 months after the result of the
ballot is declared, the Commission may order:
(a) that any step in the procedure provided by this Part be dispensed with
in relation to the proposed amalgamation; or
(b) that a fresh ballot be conducted in place of an earlier ballot in the
amalgamation;
and the Commission may give such directions and make such further orders as
the Commission considers necessary or desirable.
(3) Subsection (2) does not by implication require a further
application under section 44 to be lodged within the 12 month period
mentioned in that subsection.
(1) After the completion of a ballot under this Part, the AEC must give a
report on the conduct of the ballot to:
(a) the Federal Court; and
(b) the Industrial Registrar; and
(c) each applicant under section 44.
(2) The report must include details of the prescribed matters.
(3) If the AEC is of the opinion that the register of members, or the part
of the register, made available to the AEC for the purposes of the ballot
contained, at the time of the ballot:
(a) an unduly large proportion of members’ addresses that were not
current; or
(b) an unduly large proportion of members’ addresses that were
workplace addresses;
this fact must be included in the report.
(4) Subsection (3) applies only in relation to postal
ballots.
(1) Not later than 30 days after the result of a ballot under this Part is
declared, application may be made to the Federal Court, as prescribed, for an
inquiry by the Court into alleged irregularities in relation to the
ballot.
(2) If the Court finds that there has been an irregularity that may
affect, or may have affected, the result of the ballot, the Court may:
(a) if the ballot has not been completed—order that a step in
relation to the ballot be taken again; or
(b) in any other case—order that a fresh ballot be conducted in
place of the ballot in which the irregularity happened;
and may make such further orders as it considers necessary or
desirable.
(3) The regulations may make provision with respect to the procedure for
inquiries by the Court into alleged irregularities in relation to ballots under
this Part, and for matters relating to, or arising out of, inquiries.
(1) If the members of each of the existing organisations concerned in a
proposed amalgamation approve the proposed principal amalgamation, the proposed
principal amalgamation is approved for the purposes of this Part.
(2) If:
(a) the scheme for a proposed amalgamation contains an alternative
provision; and
(b) the members of one or more of the existing organisations concerned in
the amalgamation do not approve the proposed principal amalgamation;
and
(c) the members of 2 or more of the organisations (in paragraph (d)
called the approving organisations) approve a proposed alternative
amalgamation; and
(d) where one of the existing organisations is the proposed amalgamated
organisation—that organisation is one of the approving
organisations;
the proposed alternative amalgamation is approved for the purposes of this
Part.
The expenses of a ballot under this Part are to be borne by the
Commonwealth.
Interference with ballot papers
(1) A person commits an offence in relation to a ballot if the
person:
(a) impersonates another person with the intention of:
(i) securing a ballot paper to which the impersonator is not entitled;
or
(ii) casting a vote; or
(b) does an act that results in a ballot paper or envelope being
destroyed, defaced, altered, taken or otherwise interfered with; or
(c) fraudulently puts a ballot paper or other paper:
(i) into a ballot box or other ballot receptacle; or
(ii) into the post; or
(d) delivers a ballot paper or other paper to a person other than a person
receiving ballot papers for the purposes of the ballot; or
(e) records a vote that the person is not entitled to record; or
(f) records more than one vote; or
(g) forges a ballot paper or envelope, or utters a ballot paper or
envelope that the person knows to be forged; or
(h) provides a ballot paper without authority; or
(i) obtains a ballot paper which the person is not entitled to obtain;
or
(j) has possession of a ballot paper which the person is not entitled to
possess; or
(k) does an act that results in a ballot box or other ballot receptacle
being destroyed, taken, opened or otherwise interfered with.
Maximum penalty: 30 penalty units.
Hindering the ballot, threats and bribes etc.
(2) A person commits an offence in relation to a ballot if the
person:
(a) hinders or obstructs the taking of the ballot; or
(b) uses any form of intimidation or inducement to prevent from voting, or
to influence the vote of, a person entitled to vote at the ballot; or
(c) threatens, offers or suggests, or uses, causes or inflicts, any
violence, injury, punishment, damage, loss or disadvantage with the intention of
influencing or affecting:
(i) any vote or omission to vote; or
(ii) any support of, or opposition to, voting in a particular manner;
or
(iii) any promise of any vote, omission, support or opposition;
or
(d) gives, or promises or offers to give, any property or benefit of any
kind with the intention of influencing or affecting anything referred to in
subparagraph (c)(i), (ii) or (iii); or
(e) asks for or obtains, or offers or agrees to ask for or obtain, any
property or benefit of any kind (whether for that person or another person), on
the understanding that anything referred to in subparagraph (c)(i), (ii) or
(iii) will be influenced or affected in any way; or
(f) counsels or advises a person entitled to vote to refrain from
voting.
Maximum penalty: 30 penalty units.
Secrecy of vote
(3) A person (the relevant person) commits an offence in
relation to a ballot if:
(a) the relevant person requests, requires or induces another
person:
(i) to show a ballot paper to the relevant person; or
(ii) to permit the relevant person to see a ballot paper;
in such a manner that the relevant person can see the vote while the
ballot paper is being marked or after it has been marked; or
(b) in the case where the relevant person is a person performing duties
for the purposes of the ballot—the relevant person shows another person,
or permits another person to have access to, a ballot paper used in the ballot,
otherwise than in the performance of the duties.
Maximum penalty: 30 penalty units.
(1) The scheme of a proposed amalgamation that is approved for the
purposes of this Part takes effect in accordance with this section.
(2) If the Commission is satisfied that:
(a) the period, or the latest of the periods, within which application may
be made to the Federal Court under section 69 in relation to the
amalgamation has ended; and
(b) any application to the Federal Court under section 69 has been
disposed of, and the result of any fresh ballot ordered by the Court has been
declared; and
(c) there are no proceedings (other than civil proceedings) pending
against any of the existing organisations concerned in the amalgamation in
relation to:
(i) contraventions of this Act, the Workplace Relations Act or other
Commonwealth laws; or
(ii) breaches of:
(A) awards or certified agreements or old IR agreements; or
(B) orders made under this Act, the Workplace Relations Act or other
Commonwealth laws; and
(d) any obligation that an existing organisation has under a law of the
Commonwealth that is not fulfilled by the time the amalgamation takes effect
will be regarded by the proposed amalgamated organisation as an obligation it is
bound to fulfil under the law concerned;
the Commission must, after consultation with the existing organisations, by
notice published as prescribed, fix a day (in this Division called the
amalgamation day) as the day on which the amalgamation is to take
effect.
(3) On the amalgamation day:
(a) if the proposed amalgamated organisation is not already
registered—the Industrial Registrar must enter, in the register kept under
paragraph 13(1)(a), such particulars in relation to the organisation as are
prescribed, and the date of the entry; and
(b) any proposed alteration of the rules of an existing organisation
concerned in the amalgamation takes effect; and
(c) the Commission must de-register the proposed de-registering
organisations; and
(d) the persons who, immediately before that day, were members of a
proposed de-registering organisation become, by force of this section and
without payment of entrance fee, members of the proposed amalgamated
organisation.
(4) If:
(a) the Commission has been given an undertaking, for the purposes of
paragraph (2)(d), that an amalgamated organisation will fulfil an
obligation; and
(b) after giving the amalgamated organisation an opportunity to be heard,
the Commission determines that the organisation has not complied with the
undertaking;
the Commission may make any order it considers appropriate to require the
organisation to comply with the undertaking.
(1) On the amalgamation day, all assets and liabilities of a de-registered
organisation cease to be assets and liabilities of that organisation and become
assets and liabilities of the amalgamated organisation.
(2) For all purposes and in all proceedings, an asset or liability of a
de-registered organisation existing immediately before the amalgamation day is
taken to have become an asset or liability of the amalgamated organisation on
that day.
When the day on which the proposed amalgamation is to take effect is
fixed, section 174 has effect in relation to resignation from membership of
a proposed de-registering organisation as if the reference in subsection 174(2)
to 2 weeks were a reference to one week or such lesser period as the Commission
directs.
On and from the amalgamation day:
(a) an award, an order of the Commission or a certified agreement or old
IR agreement that was, immediately before that day, binding on a proposed
de-registering organisation and its members becomes, by force of this section,
binding on the proposed amalgamated organisation and its members; and
(b) the award, order or agreement has effect for all purposes (including
the obligations of employers and organisations of employers) as if references in
the award, order or agreement to a de-registered organisation included
references to the amalgamated organisation.
(1) Unless the scheme of a proposed amalgamation otherwise provides, an
agreement in force under section 151 to which a de-registered organisation
was a party continues in force on and from the amalgamation day as if references
in the agreement to the de-registered organisation were references to the
amalgamated organisation.
(2) The Industrial Registrar must enter in the register kept under
paragraph 13(1)(a) particulars of the effect of the amalgamation on the
agreement.
(1) On and after the amalgamation day, an instrument to which this Part
applies continues, subject to subsection (2), in full force and
effect.
(2) The instrument has effect, in relation to acts, omissions,
transactions and matters done, entered into or occurring on or after that day as
if a reference in the instrument to a de-registered organisation were a
reference to the amalgamated organisation.
Where, immediately before the amalgamation day, a proceeding to which
this Part applies was pending in a court or before the Commission:
(a) the amalgamated organisation is, on that day, substituted for each
de-registered organisation as a party; and
(b) the proceeding is to continue as if the amalgamated organisation were,
and had always been, the de-registered organisation.
(1) This Division applies, and must be given effect to, despite anything
in:
(a) any other Commonwealth, State or Territory law; or
(b) any contract, deed, undertaking, agreement or other
instrument.
(2) Nothing done by this Division, and nothing done by a person because
of, or for a purpose connected with or arising out of, this Division:
(a) is to be regarded as:
(i) placing an organisation or other person in breach of contract or
confidence; or
(ii) otherwise making an organisation or other person guilty of a civil
wrong; or
(b) is to be regarded as placing an organisation or other person in breach
of:
(i) any Commonwealth, State or Territory law; or
(ii) any contractual provision prohibiting, restricting or regulating the
assignment or transfer of any asset or liability or the disclosure of any
information; or
(c) is taken to release any surety, wholly or in part, from all or any of
the surety’s obligations.
(3) Without limiting subsection (1), where, but for this section, the
consent of a person would be necessary in order to give effect to this Division
in a particular respect, the consent is taken to have been given.
(1) The amalgamated organisation must take such steps as are necessary to
ensure that the amalgamation, and the operation of this Division in relation to
the amalgamation, are fully effective.
(2) The Federal Court may, on the application of an interested person,
make such orders as it considers appropriate to ensure that subsection (1)
is given effect to.
Where:
(a) land or an interest in land becomes, under this Division, land or an
interest in land of the amalgamated organisation; and
(b) a certificate that:
(i) is signed by an authorised person; and
(ii) identifies the land or interest, whether by reference to a map or
otherwise; and
(iii) states that the land or interest has, under this Division, become
land or an interest in land of the amalgamated organisation;
is lodged with the Registrar-General, Registrar of Titles or other proper
officer of the State or Territory in which the land is situated;
the officer with whom the certificate is lodged may:
(c) deal with, and give effect to, the certificate as if it were a grant,
conveyance, memorandum or instrument of transfer of the land (including all
rights, title and interest in the land) or the interest in the land, as the case
may be, to the amalgamated organisation that had been properly executed under
the law of the State or Territory; and
(d) register the matter in the same way as dealings in land or interests
in land of that kind are registered.
Where:
(a) the amalgamated organisation under an amalgamation becomes, under this
Division, the holder of a charge; and
(b) a certificate that:
(i) is signed by an authorised person; and
(ii) identifies the charge; and
(iii) states that the amalgamated organisation has, under this Division,
become the holder of the charge;
is lodged with the Australian Securities and Investments
Commission;
that Commission may:
(c) register the matter in the same way as assignments of charges are
registered; and
(d) deal with, and give effect to, the certificate as if it were a notice
of assignment of the charge that had been properly lodged with that
Commission.
Where:
(a) the amalgamated organisation becomes, under this Division, the holder
of a share, debenture or interest in a company; and
(b) a certificate that:
(i) is signed by an authorised person; and
(ii) identifies the share, debenture or interest; and
(iii) states that the amalgamated organisation has become, under this
Division, the holder of the share, debenture or interest;
is delivered to the company;
the company must take all steps necessary to register or record the matter
in the same way as transfers of shares, debentures or interests in the company
are registered or recorded.
Where:
(a) an asset (other than an asset to which section 82, 83 or 84
applies) becomes, under this Division, an asset of the amalgamated organisation;
and
(b) a certificate that:
(i) is signed by an authorised person; and
(ii) identifies the asset; and
(iii) states that the asset has, under this Division, become an asset of
the amalgamated organisation;
is given to the person or authority who has, under Commonwealth, State or
Territory law, responsibility for keeping a register in relation to assets of
that kind;
the person or authority may:
(c) register the matter in the same way as transactions in relation to
assets of that kind are registered; and
(d) deal with, and give effect to, the certificate;
as if the certificate were a proper and appropriate instrument for
transactions in relation to assets of that kind.
The regulations may provide for any other matters relating to giving
effect to an amalgamation.
(1) Where any difficulty arises in relation to the application of this
Division to a particular matter, the Federal Court may, on the application of an
interested person, make such order as it considers proper to resolve the
difficulty.
(2) An order made under subsection (1) has effect despite anything
contained in this Act or in any other Commonwealth law or any State or Territory
law.
(1) Subject to this section and to section 90, an act done in good
faith for the purposes of a proposed or completed amalgamation by:
(a) an organisation or association concerned in the amalgamation;
or
(b) the committee of management of such an organisation or association;
or
(c) an officer of such an organisation or association;
is valid despite any invalidity that may later be discovered in or in
connection with the act.
(2) For the purposes of this section:
(a) an act is treated as done in good faith until the contrary is proved;
and
(b) a person who has purported to be a member of the committee of
management, or an officer, is to be treated as having done so in good faith
until the contrary is proved; and
(c) an invalidity in the making or altering of the scheme for the
amalgamation is not to be treated as discovered before the earliest time proved
to be a time when the existence of the invalidity was known to a majority of
members of the committee of management or to a majority of the persons
purporting to act as the committee of management; and
(d) knowledge of facts from which an invalidity arises is not of itself
treated as knowledge that the invalidity exists.
(3) This section applies:
(a) to an act whenever done (including an act done before the commencement
of this section); and
(b) to an act done to or by an association before it became an
organisation.
(4) Nothing in this section affects:
(a) the operation of an order of the Federal Court made before the
commencement of this section; or
(b) the operation of section 69, 81 or 87 or Part 2 of
Chapter 11 (validation provisions for organisations).
(1) Subject to subsection (2) and section 90, after the end of 4
years from the day an act is done for the purposes of a proposed or completed
amalgamation by:
(a) an organisation or association concerned in the amalgamation;
or
(b) the committee of management of such an organisation or association;
or
(c) an officer of such an organisation or association;
the act is taken to have complied with this Part and the rules of the
organisation or association.
(2) The operation of this section does not affect the validity or
operation of an order, judgment, decree, declaration, direction, verdict,
sentence, decision or similar judicial act of the Federal Court or any other
court made before the end of that 4 years.
(3) This section applies:
(a) to an act whenever done (including an act done before the commencement
of this section); or
(b) to an act done to or by an association before it became an
organisation.
(1) Where, on an application for an order under this section, the Federal
Court is satisfied that the application of section 88 or 89 in relation to
an act would do substantial injustice, having regard to the interests
of:
(a) the organisation or association concerned; or
(b) members or creditors of the organisation or association concerned;
or
(c) persons having dealings with the organisation or association
concerned;
the Court must, by order, declare accordingly.
(2) Where a declaration is made, section 88 or 89, as the case
requires, does not apply, and is taken never to have applied, in relation to the
act specified in the declaration.
(3) The Court may make an order under subsection (1) on the
application of the organisation or association concerned, a member of the
organisation or association concerned or any other person having a sufficient
interest in relation to the organisation or association concerned.
(1) An organisation or association, a member of an organisation or
association or any other person having a sufficient interest in relation to an
organisation or association may apply to the Federal Court for a determination
of the question whether an invalidity has occurred in a proposed or completed
amalgamation concerning the organisation or association.
(2) On an application under subsection (1), the Court may make such
determination as it considers proper.
(3) Where, in a proceeding under subsection (1), the Court finds that
an invalidity of the kind mentioned in that subsection has occurred, the Court
may make such orders as it considers appropriate:
(a) to rectify the invalidity or cause it to be rectified; or
(b) to negative, modify or cause to be modified the consequences in law of
the invalidity; or
(c) to validate any act, matter or thing that is made invalid by or
because of the invalidity.
(4) Where an order is made under subsection (3), the Court may give
such ancillary or consequential directions as it considers
appropriate.
(5) The Court must not make an order under subsection (3) without
satisfying itself that such an order would not do substantial injustice
to:
(a) the organisation or association concerned; or
(b) any member or creditor of the organisation or association concerned;
or
(c) any person having dealings with the organisation or association
concerned.
(6) This section applies:
(a) to an invalidity whenever occurring (including an invalidity occurring
before the commencement of this section); and
(b) to an invalidity occurring in relation to an association before it
became an organisation.
The object of this Part is to provide for:
(a) certain organisations that have taken part in amalgamations (either
under this Act or the Workplace Relations Act as in force before the
commencement of this Part) to be reconstituted and re-registered; and
(b) branches of organisations of that kind to be formed into organisations
and registered;
in a way that is fair to the members of the organisations concerned and the
creditors of those organisations.
(1) In this Part, unless the contrary intention appears:
amalgamated organisation, in relation to an amalgamation,
means the organisation of which members of a de-registered organisation became
members under paragraph 73(3)(d) but does not include any such organisation that
was subsequently de-registered under Part 2.
asset has the same meaning as in Part 2.
authorised person, in relation to a completed withdrawal from
amalgamation, means a person authorised by the rules or the committee of
management of the newly registered organisation.
ballot means a ballot conducted under
Division 2.
charge has the same meaning as in Part 2.
completed withdrawal from amalgamation means a proposed
withdrawal from amalgamation that has taken effect.
constituent member, in relation to a constituent part of an
amalgamated organisation, means:
(a) in the case of a separately identifiable constituent part—a
member of the amalgamated organisation who is included in that part;
or
(b) in any other case—a member of the amalgamated organisation who
would be eligible for membership of the constituent part if:
(i) the constituent part; or
(ii) the organisation of which the constituent part was a
branch;
as the case requires, were still registered as an organisation with the
same rules as it had when it was de-registered under Part 2.
constituent part, in relation to an amalgamated organisation,
means:
(a) a separately identifiable constituent part; or
(b) a part of the membership of the amalgamated organisation that would
have been eligible for membership of:
(i) an organisation de-registered under Part 4 in connection with the
formation of the amalgamated organisation; or
(ii) a State or Territory branch of such a de-registered
organisation;
if the de-registration had not occurred.
debenture has the same meaning as in Part 2.
holder, in relation to a charge, has the same meaning as in
Part 2.
instrument has the same meaning as in Part 2.
instrument to which this Part applies, in relation to a
completed withdrawal from amalgamation, means an instrument that immediately
before the withdrawal day is an instrument:
(a) to which the amalgamated organisation from which a constituent part
has withdrawn to form a newly registered organisation is a party; or
(b) that was given to, by, or in favour of, the amalgamated organisation;
or
(c) in which a reference is made to the amalgamated organisation;
or
(d) under which any right or liability accrues or may accrue to the
amalgamated organisation in relation to the constituent part of the organisation
and its members.
interest has the same meaning as in Part 2.
invalidity has the same meaning as in Part 2.
irregularity includes a breach of the rules of an
organisation, but in Division 4 does not include an irregularity in
relation to a ballot.
liability has the same meaning as in Part 2.
newly registered organisation means an organisation
registered under section 110.
proceeding to which this Part applies, in relation to a
completed withdrawal from amalgamation, means a proceeding to which an
amalgamated organisation was a party immediately before the withdrawal
day.
proposed withdrawal from amalgamation means the proposed
carrying out of arrangements in relation to an amalgamated organisation under
which a separately identifiable constituent part of the organisation is to
withdraw from the organisation.
separately identifiable constituent part, in relation to an
amalgamated organisation, means:
(a) if an organisation de-registered under Part 2 in connection with
the formation of the amalgamated organisation remains separately identifiable
under the rules of the amalgamated organisation as a branch, division or part of
that organisation—that branch, division or part; or
(b) if a State or Territory branch of such a de-registered organisation
under its rules as in force immediately before its de-registration remains
separately identifiable under the rules of the amalgamated organisation as a
branch, division or part of that organisation—that branch, division or
part.
withdrawal day, in relation to a completed withdrawal from
amalgamation, means the day fixed under paragraph 109(1)(a) in relation to the
withdrawal from amalgamation.
(2) For the purposes of this Part, an organisation is taken to have been
de-registered under Part 2 in connection with the formation of an
amalgamated organisation if the de-registration occurred in connection with the
formation of:
(a) the amalgamated organisation; or
(b) another organisation that was subsequently de-registered under
Part 2 in connection with the formation of:
(i) the amalgamated organisation; or
(ii) an organisation that, through one or more previous applications of
this subsection, is taken to have been de-registered under Part 2 in
connection with the formation of the amalgamated organisation.
(1) An application may be made to the Federal Court for a ballot to be
held, to decide whether a constituent part of an amalgamated organisation should
withdraw from the organisation, if:
(a) the constituent part became part of the organisation as a result of an
amalgamation under:
(i) Division 7 of Part IX of the Workplace Relations Act (as in
force before the commencement of this Part) after 1 February 1991;
or
(ii) Part 2 of this Chapter; and
(b) the amalgamation occurred no less than 2 years prior to the date of
the application; and
(c) the application is made:
(i) if the amalgamation occurred before 31 December 1996—no
more than 3 years after the commencement of this Division; or
(ii) if the amalgamation occurred after 31 December 1996—no
more than 5 years after the amalgamation occurred.
(2) However, an application cannot be made if:
(a) during the last 12 months, the Court has rejected an application for a
ballot to be held in relation to the constituent part of the organisation;
or
(b) a ballot was held that rejected the withdrawal of the constituent
part.
(3) The application may be made by:
(a) the prescribed number of constituent members; or
(b) a committee of management elected entirely or substantially by the
constituent members, whether by a direct voting system or a collegiate electoral
system; or
(c) if the application relates to a separately identifiable constituent
part—the committee of management of that part.
(4) The application must be in the prescribed form and must contain such
information as is prescribed.
(5) A constituent member of an amalgamated organisation who is not a
financial member is taken not to be a constituent member for the purposes of
subsection (3).
(1) The application must be accompanied by a written outline of the
proposal for the constituent part to withdraw from the amalgamated organisation.
Subject to subsection (2), the outline must:
(a) provide, in no more than 3,000 words, sufficient information on the
proposal to enable the constituent members to make informed decisions in
relation to the proposed withdrawal; and
(b) address such matters as are prescribed.
(2) The outline may, if the Federal Court allows, consist of more than
3,000 words.
(3) The outline must be a fair and accurate representation of the proposed
withdrawal and must address any matters prescribed for the purposes of
paragraph (1)(b) in a fair and accurate manner.
(4) If the Federal Court is not satisfied that the outline complies with
subsection (3), the Court must order the making of such amendments to the
outline as it considers are needed for the outline to comply with that
subsection.
(1) The applicant or applicants may file with the Federal Court a written
statement of no more than 2,000 words in support of the proposal for the
constituent part to withdraw from the amalgamated organisation.
(2) The statement must either:
(a) accompany the application; or
(b) be filed within such later time as the Court allows.
(3) The Court may order that the statement be amended, in accordance with
the order, to correct factual errors or otherwise to ensure that it complies
with this Act.
(1) The amalgamated organisation may file with the Federal Court a written
statement of no more than 2,000 words in opposition to the proposal for the
constituent part to withdraw from the organisation.
(2) The statement must be filed either:
(a) not later than 7 days before the day set down for the hearing of the
application in question by the Court; or
(b) within such later time as the Court allows.
(3) The Court may order that the statement be amended, in accordance with
the order, to correct factual errors or otherwise to ensure that it complies
with this Act.
(1) An outline under section 95 or a statement under section 96
or 97 may, if the Federal Court allows, include matter that is not in the
form of words, including, for example, diagrams, drawings, illustrations,
photographs and symbols.
(2) The Court may allow an outline under section 95, or a statement
under section 96 or 97, to be amended by whoever filed the outline or
statement with the Court.
(1) If an application is made under section 94, the Registrar of the
Federal Court must immediately notify the AEC of the application.
(2) On being notified of the application, the AEC must immediately take
such action as it considers necessary or desirable to enable it to conduct, as
quickly as possible, any ballot that may be required as a result of the
application.
(1) The Federal Court must order that a vote of the constituent members be
taken by secret ballot, to decide whether the constituent part of the
amalgamated organisation should withdraw from the organisation, if the Court is
satisfied that:
(a) the application for the ballot is validly made under section 94;
and
(b) the outline under section 95 relating to the
application:
(i) is a fair and accurate representation of the proposal for withdrawal
from the organisation; and
(ii) addresses any matters prescribed for the purposes of paragraph
95(1)(b) in a fair and accurate manner; and
(c) the proposal for withdrawal from the organisation complies with any
requirements specified in the regulations.
(2) In considering whether to order that a ballot be held, the Court may
hear from:
(a) an applicant for the ballot; and
(b) the amalgamated organisation; and
(c) a creditor of the amalgamated organisation; and
(d) any other person who would be affected by the withdrawal of the
constituent part from the amalgamated organisation.
(3) If the Court orders that a ballot be held, it may make such orders as
it thinks fit in relation to the conduct of the ballot.
A constituent member of an amalgamated organisation is not eligible to
vote in a ballot under this Division unless the person:
(a) is a financial member of the organisation; or
(b) is in a class of members prescribed for the purposes of this
section.
(1) All ballots are to be conducted by the AEC in accordance with the
regulations. The expenses of conducting such a ballot are to be borne by the
Commonwealth.
(2) The ballot paper sent to the constituent members of a constituent part
of an amalgamated organisation in connection with a proposal for the constituent
part to withdraw from the amalgamated organisation must be accompanied
by:
(a) a copy of the outline under section 95 relating to the proposed
withdrawal; and
(b) if there is a statement under section 96 in support of the
proposed withdrawal—a copy of that statement; and
(c) if there is a statement under section 97 in opposition to the
proposed withdrawal—a copy of that statement; and
(d) a declaration envelope in the approved form.
(3) In a ballot conducted under this section, each completed ballot paper
must be returned to the AEC in the declaration envelope provided to the voter
with the ballot paper.
(1) An electoral official may, if:
(a) it is reasonably necessary for the purposes of a ballot that may be,
or is, required to be held; and
(b) the official is authorised by the AEC under this section for the
purposes of the ballot;
require (by written notice) an officer or employee of the amalgamated
organisation concerned or of a branch of the organisation:
(c) to give to the official, within the period (of not less than 7 days
after the notice is given) and in the manner specified in the notice, any
information within the knowledge or in the possession of the person;
and
(d) to produce or make available to the official, at a reasonable time
(being a time not less than 7 days after the notice is given) and place
specified in the notice, any documents in the custody or under the control of
the person, or to which he or she has access.
(2) An officer or employee of an organisation or branch of an organisation
commits an offence if he or she fails to comply with a requirement made under
subsection (1).
(3) An offence against subsection (2) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(4) Subsection (2) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter mentioned in subsection (4), see subsection 13.3(3) of the
Criminal Code.
Maximum penalty: 30 penalty units.
(5) A person is not excused from giving information or producing or making
available a document under this section on the ground that the information or
the production or making available of the document might tend to incriminate the
person or expose the person to a penalty.
(6) However:
(a) giving the information or producing or making available the document;
or
(b) any information, document or thing obtained as a direct or indirect
consequence of giving the information or producing or making available the
document;
is not admissible in evidence against the person in criminal proceedings or
proceedings that may expose the person to a penalty, other than proceedings
under, or arising out of, subsection 104(3).
(7) If any information or document specified in a notice under
subsection (1) is kept in electronic form, the electoral official may
require it to be made available in that form.
(1) If a requirement is made under subsection 103(1) in relation to the
register, or part of the register, kept by an organisation under
section 230, the secretary or other prescribed officer of the organisation
must make a declaration, in accordance with subsection (2), that the
register has been maintained as required by subsection 230(2).
Note: This subsection is a civil penalty provision (see
section 305).
(2) The declaration must be:
(a) signed by the person making it; and
(b) given to the returning officer, and lodged in the Industrial Registry,
as soon as practicable but no later than the day before the first day of voting
in the relevant election.
(3) A person must not, in a declaration for the purposes of
subsection (1), make a statement if the person knows, or is reckless as to
whether, the statement is false or misleading.
Note: This subsection is a civil penalty provision (see
section 305).
Interference with ballot papers
(1) A person commits an offence in relation to a ballot if the
person:
(a) impersonates another person with the intention of:
(i) securing a ballot paper to which the impersonator is not entitled;
or
(ii) casting a vote; or
(b) does an act that results in a ballot paper or envelope being
destroyed, defaced, altered, taken or otherwise interfered with; or
(c) fraudulently puts a ballot paper or other paper:
(i) into a ballot box or other ballot receptacle; or
(ii) into the post; or
(d) delivers a ballot paper or other paper to a person other than a person
receiving ballot papers for the purposes of the ballot; or
(e) records a vote that the person is not entitled to record; or
(f) records more than one vote; or
(g) forges a ballot paper or envelope, or utters a ballot paper or
envelope that the person knows to be forged; or
(h) provides a ballot paper without authority; or
(i) obtains a ballot paper which the person is not entitled to obtain;
or
(j) has possession of a ballot paper which the person is not entitled to
possess; or
(k) does an act that results in a ballot box or other ballot receptacle
being destroyed, taken, opened or otherwise interfered with.
Maximum penalty: 30 penalty units.
Hindering the ballot, threats and bribes etc.
(2) A person commits an offence in relation to a ballot if the
person:
(a) hinders or obstructs the taking of the ballot; or
(b) uses any form of intimidation or inducement to prevent from voting, or
to influence the vote of, a person entitled to vote at the ballot; or
(c) threatens, offers or suggests, or uses, causes or inflicts any
violence, injury, punishment, damage, loss or disadvantage with the intention of
influencing or affecting:
(i) any vote or omission to vote; or
(ii) any support of, or opposition to, voting in a particular manner;
or
(iii) any promise of any vote, omission, support or opposition;
or
(d) gives, or promises or offers to give, any property or benefit of any
kind with the intention of influencing or affecting anything referred to in
subparagraph (c)(i), (ii) or (iii); or
(e) asks for or obtains, or offers or agrees to ask for or obtain, any
property or benefit of any kind (whether for that person or another person), on
the understanding that anything referred to in subparagraph (c)(i), (ii) or
(iii) will be influenced or affected in any way; or
(f) counsels or advises a person entitled to vote to refrain from
voting.
Maximum penalty: 30 penalty units.
Secrecy of vote
(3) A person (the relevant person) commits an offence in
relation to a ballot if:
(a) the relevant person requests, requires or induces another
person:
(i) to show a ballot paper to the relevant person; or
(ii) to permit the relevant person to see a ballot paper;
in such a manner that the relevant person can see the vote while the
ballot paper is being marked or after it has been marked; or
(b) in the case where the relevant person is a person performing duties
for the purposes of the ballot—the relevant person shows another person,
or permits another person to have access to, a ballot paper used in the ballot,
otherwise than in the performance of the duties.
Maximum penalty: 30 penalty units.
(1) Within 14 days after the closing day of a ballot, the electoral
official conducting the ballot must prepare, date and sign a certificate
showing, in relation to the ballot:
(a) the total number of persons on the roll of voters; and
(b) the total number of ballot papers issued; and
(c) the total number of ballot papers received by the electoral official;
and
(d) the total number of votes in favour of the question set out on the
ballot paper; and
(e) the total number of votes not in favour of the question set out on the
ballot paper; and
(f) the total number of informal ballot papers.
(2) Immediately after signing a certificate referred to in
subsection (1), the electoral official must give a copy of the certificate
to:
(a) the Federal Court; and
(b) the Industrial Registrar; and
(c) if the applicant was a person mentioned in paragraph 94(3)(b) or
(c)—each applicant; and
(d) the amalgamated organisation from which the constituent part withdrew
or sought to withdraw.
(3) Immediately after signing a certificate referred to in
subsection (1), the electoral official must make a copy of the certificate
available in any way that it considers appropriate to each applicant under
paragraph 94(3)(a).
(1) After the completion of the ballot, the AEC must give a report on the
conduct of the ballot to:
(a) the Federal Court; and
(b) the Industrial Registrar; and
(c) if the applicant was a person mentioned in paragraph 94(3)(b) or
(c)—each applicant; and
(d) the amalgamated organisation from which the constituent part withdrew
or sought to withdraw.
(2) After the completion of the ballot, the AEC must make a report on the
conduct of the ballot available in any way that it considers appropriate to each
applicant under paragraph 94(3)(a).
(3) The report must include details of the prescribed matters.
(4) If the AEC is of the opinion that the register of members, or the part
of the register, made available to the AEC for the purposes of the ballot,
contained at the time of the ballot:
(a) an unduly large proportion of members’ addresses that were not
current; or
(b) an unduly large proportion of members’ addresses that were
workplace addresses;
this fact must be included in the report.
(1) Not later than 30 days after the result of a ballot under this Part is
declared, application may be made to the Federal Court, as prescribed, for an
inquiry by the Court into alleged irregularities in relation to the
ballot.
(2) If the Court finds that there has been an irregularity that may
affect, or may have affected, the result of the ballot, the Court may:
(a) if the ballot has not been completed—order that a step in
relation to the ballot be taken again; or
(b) in any other case—order that a fresh ballot be conducted in
place of the ballot in which the irregularity happened;
and may make such further orders as it considers necessary or
desirable.
(3) The regulations may make provision with respect to the procedure for
inquiries by the Court into alleged irregularities in relation to ballots under
this Part, and for matters relating to, or arising out of,
inquiries.
(1) If more than 50% of the formal votes cast in a ballot are in favour of
a constituent part of an amalgamated organisation withdrawing from the
organisation, the Federal Court must, on application:
(a) determine the day on which the withdrawal is to take effect;
and
(b) make such orders as are necessary to apportion the assets and
liabilities of the amalgamated organisation between the amalgamated organisation
and the constituent part; and
(c) make such other orders as it thinks fit in connection with giving
effect to the withdrawal.
(2) In making an order under paragraph (1)(b), the Court must have
regard to:
(a) the assets and liabilities of the constituent part before it, or the
organisation of which it was a State or Territory branch, was de-registered
under Part 2 in connection with the formation of the amalgamated
organisation; and
(b) any change in the net value of those assets or liabilities that has
occurred since the amalgamation; and
(c) the interests of the creditors of the amalgamated
organisation.
(3) An application to the Court under subsection (1) may be made
by:
(a) the prescribed number of constituent members; or
(b) a person authorised to make the application by the prescribed number
of constituent members; or
(c) a committee of management elected entirely or substantially by the
constituent members, whether by a direct voting system or a collegiate electoral
system; or
(d) if the application relates to a separately identifiable constituent
part—the committee of management of that part; or
(e) a person who is:
(i) either a constituent member or a member of a committee of management
referred to in paragraph (c) or (d); and
(ii) authorised to make the application by a committee of management
referred to in paragraph (c) or (d).
(4) A constituent member of an amalgamated organisation who is not a
financial member is taken not to be a constituent member for the purposes of
subsection (3).
(5) The application must be in the prescribed form and must contain such
information as is prescribed.
(6) The regulations may prescribe the manner in which an authorisation for
the purposes of paragraph (3)(b) and subparagraph (e)(ii) must be
made.
The Industrial Registrar must, with effect from the day determined under
paragraph 109(1)(a):
(a) register the constituent part as an organisation in the register kept
under paragraph 13(1)(a); and
(b) enter in the register such other particulars in relation to the
organisation as are prescribed.
(1) This section applies in the case of a withdrawal from amalgamation
under this Part by a separately identifiable constituent part of an amalgamated
organisation.
(2) As soon as practicable after the constituent part is registered as an
organisation under section 110, the amalgamated organisation must send a
written statement in accordance with subsection (3) to each person who,
immediately before that registration, was a member of the amalgamated
organisation attached to the constituent part.
(3) The statement must:
(a) inform the person of the withdrawal from amalgamation of the
constituent part; and
(b) invite the person to give written notice, within a period of 28 days
after being sent the statement (the notice period), to the
amalgamated organisation or to the newly registered organisation that:
(i) the person wants to remain a member of the amalgamated organisation;
or
(ii) the person wants to become a member of the newly registered
organisation; and
(c) explain the effect of responding, or failing to respond, to the
invitation.
(4) As soon as practicable after the amalgamated organisation receives a
notice under paragraph (3)(b), it must notify the newly registered
organisation of the receipt.
(5) As soon as practicable after the newly registered organisation
receives a notice under paragraph (3)(b), it must notify the amalgamated
organisation of the receipt.
(6) If a person referred to in subsection (2) gives written notice in
accordance with paragraph (3)(b), within the notice period, that he or she
wants to become a member of the newly registered organisation, he or
she:
(a) ceases, by force of this subsection, to be a member of the amalgamated
organisation with effect from the day on which the notice is received by the
amalgamated organisation or the newly registered organisation (as the case may
be); and
(b) becomes, by force of this subsection and without payment of entrance
fee, a member of the newly registered organisation with effect from the day
after the day referred to in paragraph (a).
(7) If a person referred to in subsection (2):
(a) gives written notice in accordance with paragraph (3)(b) within
the notice period that he or she wants to remain a member of the amalgamated
organisation; or
(b) fails to give written notice in accordance with paragraph (3)(b)
within the notice period;
he or she remains a member of the amalgamated organisation.
(8) A person who ceases to be a member of the amalgamated organisation
because of the operation of subsection (6):
(a) is not liable to make any payment because the person gave no notice,
or insufficient notice, of ceasing to be such a member under the rules of the
organisation; and
(b) otherwise, remains liable for such payments as are due in accordance
with those rules.
(9) Notwithstanding paragraph (7)(b), if a person to whom that
paragraph would apply, at any time before the day upon which the constituent
part is registered as an organisation under section 110, gives notice in
writing to the amalgamated organisation or to the applicant for a ballot under
section 94 that he or she wishes to become a member of the newly registered
organisation upon its registration under section 110, that
person:
(a) ceases, by force of this subsection, to be a member of the amalgamated
organisation with effect from the day after the end of the notice period;
and
(b) becomes, by force of this subsection and without payment of entrance
fee, a member of the newly registered organisation with effect from the day
after the day referred to in paragraph (a).
(10) As soon as practicable after the end of the notice period, the
amalgamated organisation must notify the newly registered organisation of any
notices under subsection (9) it has received.
(11) As soon as practicable after the end of the notice period, the newly
registered organisation must notify the amalgamated organisation of any notices
under subsection (9) the applicant under section 94 has
received.
A person who is a member of the amalgamated organisation from which the
constituent part withdrew to form a newly registered organisation may become a
member of the newly registered organisation without payment of entrance fee if
the person is eligible for membership of it.
(1) This section applies to an order of the Commission, an award, a
certified agreement or an old IR agreement that was, immediately before the day
the registration takes effect, binding on the amalgamated organisation in
relation to the constituent part of the organisation and its members.
(2) On and from the day the registration takes effect, the order, award,
certified agreement or old IR agreement:
(a) becomes binding on the newly registered organisation and its members;
and
(b) has effect for all purposes (including the obligations of employers
and organisations of employers) as if references in the order, award or
agreement to the amalgamated organisation included references to the newly
registered organisation.
(1) An agreement:
(a) in force under section 151 immediately before the day on which
registration of a newly registered organisation takes effect; and
(b) to which the amalgamated organisation from which a constituent part
has withdrawn to form the newly registered organisation is a party;
continues in force on and from that day as if references in the agreement
to the amalgamated organisation included a reference to the newly registered
organisation.
(2) The Industrial Registrar must enter in the register kept under
paragraph 13(1)(a) particulars of the effect of the withdrawal from amalgamation
on the agreement.
(1) On and after the withdrawal day, an instrument to which this Part
applies continues, subject to subsection (2), in full force and
effect.
(2) Subject to section 109, the instrument has effect, in relation to
acts, omissions, transactions and matters done, entered into or occurring on or
after that day as if a reference in the instrument to the amalgamated
organisation from which a constituent part has withdrawn to form a newly
registered organisation included a reference to the newly registered
organisation.
If an amalgamated organisation from which a constituent part has
withdrawn to form a newly registered organisation was, immediately before the
withdrawal day, a party to a proceeding that:
(a) was pending at that day; and
(b) concerns, wholly or in part, the interests of the constituent members
of the constituent part;
then, on and after that day, the newly registered organisation:
(c) in the case of proceedings that concern wholly the interests of the
constituent members—is substituted for the amalgamated organisation in
those proceedings and has the same rights and obligations in the proceedings as
the amalgamated organisation had; and
(d) in the case of proceedings that concern in part the interests of the
constituent members—becomes a party to the proceedings and has the same
rights and obligations in the proceedings as the amalgamated organisation
has.
(1) This Division applies, and must be given effect to, despite anything
in:
(a) any other Commonwealth, State or Territory law; or
(b) any contract, deed, undertaking, agreement or other
instrument.
(2) Nothing done by this Division, and nothing done by a person because
of, or for a purpose connected with or arising out of, this Division:
(a) is to be regarded as:
(i) placing an organisation or other person in breach of contract or
confidence; or
(ii) otherwise making an organisation or other person guilty of a civil
wrong; or
(b) is to be regarded as placing an organisation or other person in breach
of:
(i) any Commonwealth, State or Territory law; or
(ii) any contractual provision prohibiting, restricting or regulating the
assignment or transfer of any asset or liability or the disclosure of any
information; or
(c) is taken to release any surety, wholly or in part, from all or any of
the surety’s obligations.
(3) Without limiting subsection (1), if, apart from this section, the
consent of a person would be necessary in order to give effect to this Division
in a particular respect, the consent is taken to have been given.
(1) The following must take such steps as are necessary to ensure that the
withdrawal from amalgamation, and the operation of this Division in relation to
the withdrawal from amalgamation, are fully effective:
(a) the amalgamated organisation concerned;
(b) the constituent part concerned;
(c) the newly registered organisation concerned.
(2) The Federal Court may, on the application of an interested person,
make such orders as it considers appropriate to ensure that subsection (1)
is given effect to.
Where:
(a) land or an interest in land becomes, under this Division, land or an
interest in land of a newly registered organisation; and
(b) a certificate that:
(i) is signed by an authorised person; and
(ii) identifies the land or interest, whether by reference to a map or
otherwise; and
(iii) states that the land or interest has, under this Division, become
land or an interest in land of the newly registered organisation;
is lodged with the Registrar-General, Registrar of Titles or other proper
officer of the State or Territory in which the land is situated;
the officer with whom the certificate is lodged may:
(c) register the matter in the same way as dealings in land or interests
in land of that kind are registered; and
(d) deal with, and give effect to, the certificate as if it were a grant,
conveyance, memorandum or instrument of transfer of the land (including all
rights, title and interest in the land) or the interest in the land, as the case
may be, to the newly registered organisation that had been properly executed
under the law of the State or Territory.
Where:
(a) a newly registered organisation becomes, under this Division, the
holder of a charge; and
(b) a certificate that:
(i) is signed by an authorised person; and
(ii) identifies the charge; and
(iii) states that the newly registered organisation has, under this
Division, become the holder of the charge;
is lodged with the Australian Securities and Investments
Commission;
that Commission may:
(c) register the matter in the same way as assignments of charges are
registered; and
(d) deal with, and give effect to, the certificate as if it were a notice
of assignment of the charge that had been properly lodged with that
Commission.
Where:
(a) a newly registered organisation becomes, under this Division, the
holder of a share, debenture or interest in a company; and
(b) a certificate that:
(i) is signed by an authorised person; and
(ii) identifies the share, debenture or interest; and
(iii) states that the newly registered organisation has become, under this
Division, the holder of the share, debenture or interest;
is delivered to the company;
the company must take all steps necessary to register or record the matter
in the same way as transfers of shares, debentures or interests in the company
are registered or recorded.
Where:
(a) an asset (other than an asset to which section 119, 120 or 121
applies) becomes, under this Division, an asset of a newly registered
organisation; and
(b) a certificate that:
(i) is signed by an authorised person; and
(ii) identifies the asset; and
(iii) states that the asset has, under this Division, become an asset of
the newly registered organisation;
is given to the person or authority who has, under Commonwealth, State or
Territory law, responsibility for keeping a register in relation to assets of
that kind;
the person or authority may:
(c) register the matter in the same way as transactions in relation to
assets of that kind are registered; and
(d) deal with, and give effect to, the certificate as if the certificate
were a proper and appropriate instrument for transactions in relation to assets
of that kind.
(1) The rules of a newly registered organisation may provide that a person
who:
(a) was elected to office (the constituent office) in the
constituent part that withdrew from an amalgamated organisation to form the new
registered organisation; and
(b) held that office immediately before withdrawal day;
holds the equivalent office in the newly registered organisation as if he
or she were elected under the rules of the newly registered
organisation.
(2) However, the rules may not permit a person to hold office after the
later of:
(a) the day that would have been the person’s last day of term in
the constituent office if the withdrawal had not occurred; and
(b) the first anniversary of the withdrawal day.
The regulations may provide for any other matters relating to giving
effect to the withdrawal of constituent parts from amalgamated
organisations.
(1) If any difficulty arises in relation to the application of this Part
to a particular matter, the Federal Court may, on the application of an
interested person, make such order as it thinks proper to resolve the
difficulty.
(2) An order made under subsection (1) has effect despite any
Commonwealth, State or Territory law.
(1) Subject to this section and to section 128, an act done in good
faith for the purposes of a proposed or completed withdrawal from amalgamation
by:
(a) the amalgamated organisation concerned; or
(b) the committee of management, or an officer, of that organisation;
or
(c) the constituent part concerned; or
(d) the committee of management, or an officer, of that part; or
(e) the newly registered organisation concerned; or
(f) the committee of management, or an officer, of that
organisation;
is valid despite any invalidity that may later be discovered in or in
connection with the act.
(2) For the purposes of this section:
(a) an act is treated as done in good faith until the contrary is proved;
and
(b) a person who has purported to be a member of the committee of
management, or an officer, is to be treated as having done so in good faith
until the contrary is proved; and
(c) an invalidity in the making or altering of the outline of the proposed
withdrawal from amalgamation is not to be treated as discovered before the
earliest time proved to be a time when the existence of the invalidity was known
to a majority of members of the committee of management or to a majority of the
persons purporting to act as the committee of management; and
(d) knowledge of facts from which an invalidity arises is not of itself
treated as knowledge that the invalidity exists.
(3) This section applies to an act whenever done (including an act done
before the commencement of this section).
(4) Nothing in this section affects:
(a) the operation of an order of the Federal Court made before the
commencement of this section; or
(b) the operation of section 108, 118 or 125 or Part 2 of
Chapter 11 (validation provisions for organisations).
(1) Subject to subsection (2) and section 128, after the end of
4 years from the day an act is done for the purposes of a proposed or completed
withdrawal from amalgamation by:
(a) the amalgamated organisation concerned; or
(b) the committee of management, or an officer, of that organisation;
or
(c) the constituent part concerned; or
(d) the committee of management, or an officer, of that part; or
(e) the newly registered organisation concerned; or
(f) the committee of management, or an officer, of that
organisation;
the act is taken to have complied with this Part and the rules of the
organisation.
(2) The operation of this section does not affect the validity or
operation of an order, judgment, decree, declaration, direction, verdict,
sentence, decision or similar judicial act of the Federal Court or any other
court made before the end of that 4 years.
(3) This section applies to an act whenever done (including an act done
before the commencement of this section).
(1) Where, on an application for an order under this section, the Federal
Court is satisfied that the application of section 126 or 127 in relation
to an act would do substantial injustice, having regard to the interests
of:
(a) the amalgamated organisation from which a constituent part withdrew to
form a newly registered organisation, or the constituent part; or
(b) members or creditors of the amalgamated organisation or the
constituent part; or
(c) persons having dealings with the amalgamated organisation or the
constituent part; or
(d) the newly registered organisation; or
(e) members or creditors of the newly registered organisation;
or
(f) persons having dealings with the newly registered
organisation;
the Court must, by order, declare accordingly.
(2) Where a declaration is made, section 126 or 127, as the case
requires, does not apply, and is taken never to have applied, in relation to the
act specified in the declaration.
(3) The Court may make an order under subsection (1) on the
application of:
(a) the amalgamated organisation; or
(b) the constituent part; or
(c) the newly registered organisation; or
(d) a member of, or any other person having a sufficient interest in
relation to, a body referred to in paragraph (a), (b) or (c).
(1) Any of the following may apply to the Federal Court for a
determination of the question whether an invalidity has occurred in a proposed
withdrawal from amalgamation or completed withdrawal from
amalgamation:
(a) the amalgamated organisation concerned;
(b) the constituent part concerned;
(c) the newly registered organisation concerned;
(d) a member of, or any other person having a sufficient interest in
relation to, a body referred to in paragraph (a), (b) or (c).
(2) On an application under subsection (1), the Court may make such
determination as it considers proper.
(3) Where, in a proceeding under subsection (1), the Court finds that
an invalidity of the kind mentioned in that subsection has occurred, the Court
may make such orders as it considers appropriate:
(a) to rectify the invalidity or cause it to be rectified; or
(b) to negative, modify or cause to be modified the consequences in law of
the invalidity; or
(c) to validate any act, matter or thing that is made invalid by or
because of the invalidity.
(4) Where an order is made under subsection (3), the Court may give
such ancillary or consequential directions as it considers
appropriate.
(5) The Court must not make an order under subsection (3) without
satisfying itself that such an order would not do substantial injustice
to:
(a) the amalgamated organisation; or
(b) a member or creditor of the amalgamated organisation; or
(c) the constituent part; or
(d) a constituent member of the constituent part; or
(e) the newly registered organisation; or
(f) a member or creditor of the newly registered organisation;
or
(g) any other person having dealings with the amalgamated organisation,
the constituent part or the newly registered organisation.
(6) This section applies to an invalidity whenever occurring (including an
invalidity occurring before the commencement of this section).
(1) Neither of the following constitutes a breach of the rules of an
amalgamated organisation:
(a) an act done, or omitted to be done, under or for the purposes of this
Part, or regulations made for the purposes of this Part;
(b) an act done, or omitted to be done, in connection with the proposal
of, or preparation for, an act or omission of a kind referred to in
paragraph (a).
(2) The following are examples of acts and omissions to which
subsection (1) applies:
(a) making an application under section 94;
(b) supporting, or supporting the making of, an application under
section 94;
(c) participating in, or encouraging a person to participate in, a ballot
under Division 2;
(d) not participating in a ballot under Division 2;
(e) encouraging a person not to participate in a ballot under
Division 2;
(f) casting a vote in a particular way in a ballot under
Division 2;
(g) encouraging a person to cast a vote in a particular way in a ballot
under Division 2;
(h) complying with an order or requirement made under this Part or
regulations made for the purposes of this Part; or
(i) encouraging a person to resign his or her membership of the
amalgamated organisation from which the constituent part withdrew to form the
newly registered organisation so that the person can become a member of the
newly registered organisation.
(1) The amalgamated organisation, or an officer or member of the
organisation, must not impose, or threaten to impose, a penalty, forfeiture or
disability of any kind on:
(a) a member or officer of the organisation; or
(b) a branch, or other part, of the organisation;
because the member, officer, branch or part concerned does, or proposes to
do, an act or omission referred to in section 130.
(2) The Federal Court may, if the Court considers it appropriate in all
the circumstances, make one or more of the following orders in respect of
conduct that contravenes subsection (1):
(a) an order imposing on a person whose conduct contravenes that
subsection a penalty of not more than:
(i) in the case of a body corporate—100 penalty units; or
(ii) in any other case—20 penalty units;
(b) an order requiring the person not to carry out a threat made by the
person, or not to make any further threat;
(c) injunctions (including interim injunctions), and any other orders,
that the Court considers necessary to stop the conduct or remedy its
effects;
(d) any other consequential orders.
(3) An application for an order under subsection (2) may be made
by:
(a) a person against whom the conduct is being, has been, or is
threatened to be, taken; or
(b) any other person prescribed by the regulations.
(4) For the purposes of this section, action done by one of the following
bodies or persons is taken to have been done by an amalgamated
organisation:
(a) the committee of management of the amalgamated organisation;
(b) an officer or agent of the amalgamated organisation acting in that
capacity;
(c) a member or group of members of the amalgamated organisation acting
under the rules of the organisation;
(d) a member of the amalgamated organisation, who performs the function of
dealing with an employer on behalf of other members of the organisation, acting
in that capacity.
(5) Paragraphs (4)(c) and (d) do not apply if:
(a) a committee of management of the amalgamated organisation;
or
(b) a person authorised by the committee; or
(c) an officer of the amalgamated organisation;
has taken reasonable steps to prevent the action.
(6) In this section:
amalgamated organisation includes a branch of an amalgamated
organisation.
officer, in relation to an amalgamated organisation,
includes:
(a) a delegate or other representative of the organisation; and
(b) an employee of the organisation.
This Chapter enables the Commission to make orders, in the context of
demarcation disputes, about the representation rights of organisations of
employees.
The Commission must take certain factors into account before making a
representation order (see section 135).
(1) Subject to this Chapter and subsection 151(6), the Commission may, on
the application of an organisation, an employer or the Minister, make the
following orders in relation to a demarcation dispute:
(a) an order that an organisation of employees is to have the right, to
the exclusion of another organisation or other organisations, to represent under
this Act or the Workplace Relations Act the industrial interests of a particular
class or group of employees who are eligible for membership of the
organisation;
(b) an order that an organisation of employees that does not have the
right to represent under this Act or the Workplace Relations Act the industrial
interests of a particular class or group of employees is to have that
right;
(c) an order that an organisation of employees is not to have the right to
represent under this Act or the Workplace Relations Act the industrial interests
of a particular class or group of employees who are eligible for membership of
the organisation.
Note: Section 151 deals with agreements between
organisations of employees and State unions.
(2) The Commission may, on application by an organisation, an employer or
the Minister, vary an order made under subsection (1).
(1) The Commission must not make an order unless:
(a) it has decided under section 100 of the Workplace Relations Act
not to refer the dispute for conciliation; or
(b) a conciliation proceeding in relation to the dispute is completed
(within the meaning of section 103 of the Workplace Relations Act), but the
dispute has not been fully settled.
(2) The Commission must not make an order unless the Commission is
satisfied that:
(a) the conduct, or threatened conduct, of an organisation to which the
order would relate, or of an officer, member or employee of the
organisation:
(i) is preventing, obstructing or restricting the performance of work;
or
(ii) is harming the business of an employer; or
(b) the consequences referred to in subparagraph (a)(i) or
(ii):
(i) have ceased, but are likely to recur; or
(ii) are imminent;
as a result of such conduct or threatened conduct.
In considering whether to make an order under section 133, the
Commission must have regard to the wishes of the employees who are affected by
the dispute and, where the Commission considers it appropriate, is also to have
regard to:
(a) the effect of any order on the operations (including operating costs,
work practices, efficiency and productivity) of an employer who is a party to
the dispute or who is a member of an organisation that is a party to the
dispute; and
(b) any agreement or understanding of which the Commission becomes aware
that deals with the right of an organisation of employees to represent under
this Act or the Workplace Relations Act the industrial interests of a particular
class or group of employees; and
(c) the consequences of not making an order for any employer, employees or
organisation involved in the dispute; and
(d) any other order made by the Commission, in relation to another
demarcation dispute involving the organisation to which the order under this
section would relate, that the Commission considers to be relevant.
Note: Under section 135 of the Workplace Relations Act,
the Commission may order that a vote of the members of an organisation concerned
in the dispute be taken by secret ballot for the purpose of finding out their
attitudes to the dispute.
The order may be subject to conditions or limitations.
(1) An organisation to which the order applies must comply with the
order.
(2) The Federal Court may, on application by the Minister or a person or
organisation affected by an order made under section 133, make such orders
as it thinks fit to ensure compliance with that order.
The powers of the Commission under this Chapter are exercisable only by a
Full Bench or Presidential Member.
This Chapter sets out the requirements that organisations’ rules must
comply with (see Part 2).
Part 3 sets out processes available to members who think that their
organisation’s rules do not comply with this Chapter, or are not being
followed.
(1) An organisation must have rules that make provision as required by
this Act.
(2) A rule of an organisation making provision required by this Act to be
made may be mandatory or directory.
(1) The rules of an organisation:
(a) must specify the purposes for which the organisation is formed and the
conditions of eligibility for membership; and
(b) must provide for:
(i) the powers and duties of the committees of the organisation and its
branches, and the powers and duties of holders of offices in the organisation
and its branches; and
(ii) the manner of summoning meetings of members of the organisation and
its branches, and meetings of the committees of the organisation and its
branches; and
(iii) the removal of holders of offices in the organisation and its
branches; and
(iv) the control of committees of the organisation and its branches
respectively by the members of the organisation and branches; and
(v) the manner in which documents may be executed by or on behalf of the
organisation; and
(vi) the manner of notifying the Commission of industrial disputes;
and
(vii) the times when, and the terms on which, persons become or cease
(otherwise than by resignation) to be members; and
(viii) the resignation of members under section 174; and
(ix) the manner in which the property of the organisation is to be
controlled and its funds invested; and
(x) the yearly or other more frequent audit of the accounts; and
(xi) the conditions under which funds may be spent; and
(xii) the keeping of a register of the members, arranged, where there are
branches of the organisation, according to branches; and
(xiii) the manner in which its rules may be altered; and
(c) may provide for the removal from office of a person elected to an
office in the organisation only where the person has been found guilty, under
the rules of the organisation, of:
(i) misappropriation of the funds of the organisation; or
(ii) a substantial breach of the rules of the organisation; or
(iii) gross misbehaviour or gross neglect of duty;
or has ceased, under the rules of the organisation, to be eligible to
hold the office; and
(d) must require the organisation to inform applicants for membership, in
writing, of:
(i) the financial obligations arising from membership; and
(ii) the circumstances, and the manner, in which a member may resign from
the organisation.
Note 1: Section 166 deals with entitlement to
membership of organisations.
Note 2: See also section 179 (liability for
arrears).
(2) The rules of an organisation of employees may include provision for
the eligibility for membership of the organisation of independent contractors
who, if they were employees performing work of the kind which they usually
perform as independent contractors, would be employees eligible for membership
of the organisation.
(3) The rules of an organisation may also provide for any other
matter.
(4) In this section:
committee, in relation to an organisation or branch of an
organisation, means a collective body of the organisation or branch that has
powers of the kind mentioned in paragraph (1)(b) of the definition of
office in section 9.
(1) The rules of an organisation:
(a) must not be contrary to, or fail to make a provision required by this
Act, the Workplace Relations Act, an award, a certified agreement or an old IR
agreement, or otherwise be contrary to law; and
(b) must not be such as to prevent or hinder members of the organisation
from:
(i) observing the law or the provisions of an award, an order of the
Commission, a certified agreement or an old IR agreement; or
(ii) entering into written agreements under an award, an order of the
Commission, a certified agreement or an old IR agreement; and
(c) must not impose on applicants for membership, or members, of the
organisation, conditions, obligations or restrictions that, having regard to the
objects of this Act and the Workplace Relations Act and the purposes of the
registration of organisations under this Act, are oppressive, unreasonable or
unjust; and
(d) must not discriminate between applicants for membership, or members,
of the organisation on the basis of race, colour, sex, sexual preference, age,
physical or mental disability, marital status, family responsibilities,
pregnancy, religion, political opinion, national extraction or social
origin.
(2) For the purposes of paragraph (1)(d), rules of an organisation
are taken not to discriminate on the basis of age if the rules do not prevent
the organisation setting its membership dues by reference to rates of pay even
where those rates are set by reference to a person’s age.
(1) The rules of an organisation:
(a) must provide for the election of the holder of each office in the
organisation by:
(i) a direct voting system; or
(ii) a collegiate electoral system that, in the case of a full-time
office, is a one-tier collegiate electoral system; and
(b) must provide for the conduct of every such election (including the
acceptance or rejection of nominations) by a returning officer who is not the
holder of any office in, or an employee of, the organisation or a branch,
section or division of the organisation; and
(c) must provide that, if the returning officer conducting an election
finds a nomination to be defective, the returning officer must, before rejecting
the nomination, notify the person concerned of the defect and, where
practicable, give the person the opportunity of remedying the defect within such
period as is applicable under the rules, which must, where practicable, be not
less than 7 days after the person is notified; and
(d) must make provision for:
(i) the manner in which persons may become candidates for election;
and
(ii) the duties of returning officers; and
(iii) the declaration of the result of an election; and
(e) must provide that, where a ballot is required, it must be a secret
ballot, and must make provision for:
(i) in relation to a direct voting system ballot (including a direct
voting system ballot that is a stage of an election under a collegiate electoral
system)—the day on which the roll of voters for the ballot is to be
closed; and
(ii) absent voting; and
(iii) the conduct of the ballot; and
(iv) the appointment, conduct and duties of scrutineers to represent the
candidates at the ballot; and
(f) must be such as to ensure, as far as practicable, that no
irregularities can occur in relation to an election.
(2) Without limiting section 142, the rules of an organisation
relating to elections may provide for compulsory voting.
(3) The day provided for in the rules of an organisation as the day on
which the roll of voters is to be closed (see paragraph (1)(e)) must be a
day no earlier than 30 days, and no later than 7 days, before the day on which
nominations for the election open.
(4) A reference in this section to the rules of an organisation includes a
reference to the rules of a branch of the organisation.
(5) The reference in paragraph (1)(c) to a nomination being defective
does not include a reference to a nomination of a person that is defective
because the person is not qualified to hold the office to which the nomination
relates.
(6) The rules providing for the day on which the roll of voters for a
ballot is to be closed are not to be taken to prevent the correction of errors
in the roll after that day.
(1) Where the rules of an organisation provide for election for an office
to be by a direct voting system, the rules must also provide that, where a
ballot is required for such an election, it must be a secret postal
ballot.
(2) An organisation may lodge in the Industrial Registry an application
for an exemption from subsection (1), accompanied by particulars of
proposed alterations of the rules of the organisation, to provide for the
conduct of elections of the kind referred to in subsection (1) by a secret
ballot other than a postal ballot.
(3) If the Industrial Registrar is satisfied, on application by an
organisation under subsection (2):
(a) that the proposed alterations of the rules:
(i) comply with and are not contrary to this Act (other than
subsection (1)), the Workplace Relations Act, awards, certified agreements
and old IR agreements; and
(ii) are not otherwise contrary to law; and
(iii) have been decided on under the rules of the organisation;
and
(b) that the conduct of a ballot under the rules of the organisation as
proposed to be altered:
(i) is likely to result in a fuller participation by members of the
organisation in the ballot than would result from a postal ballot; and
(ii) will afford to members entitled to vote an adequate opportunity of
voting without intimidation;
the Industrial Registrar may grant to the organisation an exemption from
subsection (1).
(4) Proposed alterations of the rules of an organisation referred to in
subsection (2) take effect if and when the Industrial Registrar grants to
the organisation an exemption from subsection (1).
(5) An exemption under subsection (3) remains in force until revoked
under subsection (6).
(6) The Industrial Registrar may revoke an exemption granted to an
organisation under subsection (3):
(a) on application by the organisation, if the Industrial Registrar is
satisfied that the rules of the organisation comply with subsection (1);
or
(b) if the Industrial Registrar is no longer satisfied:
(i) that the rules of the organisation provide for the conduct of
elections of the kind referred to in subsection (1) by a secret ballot
other than a postal ballot; or
(ii) of a matter referred to in paragraph (3)(b);
and the Industrial Registrar has given the organisation an opportunity,
as prescribed, to show cause why the exemption should not be revoked.
(7) Where the Industrial Registrar revokes an exemption granted to an
organisation on the ground specified in paragraph (6)(b), the Industrial
Registrar may, by instrument, after giving the organisation an opportunity, as
prescribed, to be heard, determine such alterations (if any) of the rules of the
organisation as are, in the Industrial Registrar’s opinion, necessary to
bring them into conformity with subsection (1).
(8) An alteration of the rules of an organisation determined under
subsection (7) takes effect on the date of the instrument.
(9) Subsection 81(1) of the Workplace Relations Act does not apply in
relation to a decision of the Industrial Registrar to grant an exemption under
subsection (3).
Note: Subsection 81(1) of the Workplace Relations Act
provides for appeals from certain decisions of the Industrial
Registrar.
(10) This section applies in relation to elections for offices in branches
of organisations as if references to an organisation were references to a branch
of an organisation.
(1) The rules of an organisation must, subject to subsection (2),
provide terms of office for officers in the organisation of no longer than 4
years without re-election.
(2) The rules of an organisation, or a branch of an organisation, may
provide that a particular term of office is extended for a specified period,
where the extension is for the purpose of synchronising elections for offices in
the organisation or branch, as the case may be.
(3) The term of an office must not be extended under subsection (2)
so that the term exceeds 5 years.
(4) A reference in this section (other than subsection (2)) to the
rules of an organisation includes a reference to the rules of a
branch of the organisation.
(1) The rules of an organisation may provide for the filling of a casual
vacancy in an office by an ordinary election or, subject to this section, in any
other manner provided in the rules.
(2) Rules made under subsection (1) must not permit a casual vacancy,
or a further casual vacancy, occurring within the term of an office to be
filled, otherwise than by an ordinary election, for so much of the unexpired
part of the term as exceeds:
(a) 12 months; or
(b) three-quarters of the term of the office;
whichever is the greater.
(3) Where, under rules made under subsection (1), a vacancy in an
office in an organisation is filled otherwise than by an ordinary election, the
person filling the vacancy must be taken, for the purposes of the relevant
provisions, to have been elected to the office under the relevant
provisions.
(4) A reference in this section to the rules of an organisation includes a
reference to the rules of a branch of the organisation.
(5) In this section:
ordinary election means an election held under rules that
comply with section 143.
relevant provisions, in relation to an organisation,
means:
(a) the provisions of this Act (other than this section); and
(b) the rules of the organisation (other than rules made under
subsection (1)) providing for the filling of a casual vacancy in an office
otherwise than by an ordinary election.
term, in relation to an office, means the total period for
which the last person elected to the office by an ordinary election (other than
an ordinary election to fill a casual vacancy in the office) was entitled by
virtue of that election (having regard to any rule made under subsection 145(2))
to hold the office without being re-elected.
(1) The Minister may, by notice published in the Gazette, issue
guidelines containing one or more sets of model rules for the conduct of
elections for office. An organisation may adopt model rules in whole or in part,
and with or without modification.
(2) The Minister may, by signed instrument, delegate the power under
subsection (1) to the Electoral Commissioner.
Note: The Minister may also delegate this power under
section 343.
The Minister may, by notice published in the Gazette, issue
guidelines containing one or more sets of model rules about the conduct of
officers and employees. An organisation may adopt the model rules in whole or in
part, and with or without modification.
Note: Part 4 of Chapter 8 deals with the conduct
of officers and employees.
(1) The rules of an organisation must provide that a loan, grant or
donation of an amount exceeding $1,000 must not be made by the organisation
unless the committee of management:
(a) has satisfied itself:
(i) that the making of the loan, grant or donation would be in accordance
with the other rules of the organisation; and
(ii) in the case of a loan—that, in the circumstances, the security
proposed to be given for the repayment of the loan is adequate and the proposed
arrangements for the repayment of the loan are satisfactory; and
(b) has approved the making of the loan, grant or donation.
(2) In spite of subsection (1), the rules of an organisation may
provide for a person authorised by the rules to make a loan, grant or donation
of an amount not exceeding $3,000 to a member of the organisation if the loan,
grant or donation:
(a) is for the purpose of relieving the member or any of the
member’s dependants from severe financial hardship; and
(b) is subject to a condition to the effect that, if the committee of
management, at the next meeting of the committee, does not approve the loan,
grant or donation, it must be repaid as determined by the committee.
(3) In considering whether to approve a loan, grant or donation made under
subsection (2), the committee of management must have regard to:
(a) whether the loan, grant or donation was made under the rules of the
organisation; and
(b) in the case of a loan:
(i) whether the security (if any) given for the repayment of the loan is
adequate; and
(ii) whether the arrangements for the repayment of the loan are
satisfactory.
(4) Nothing in subsection (1) requires the rules of an organisation
to make provision of the kind referred to in that subsection in relation to
payments made by the organisation by way of provision for, or reimbursement of,
out-of-pocket expenses incurred by persons for the benefit of the
organisation.
(5) In this section, a reference to an organisation includes
a reference to a branch of an organisation.
(6) For the purposes of the application of this Division to a branch of an
organisation, the members of the organisation constituting the branch are taken
to be members of the branch.
In this Subdivision:
ineligible State members, in relation to an organisation,
means the members of a State union who, under the eligibility rules of the
organisation, are not eligible to be members of the organisation.
State Act means:
(a) the Industrial Relations Act 1996 of New South Wales;
or
(b) the Industrial Relations Act 1999 of Queensland; or
(c) the Industrial Relations Act 1979 of Western Australia;
or
(d) the Industrial and Employee Relations Act 1994 of South
Australia; or
(e) an Act of a State that is prescribed for the purposes of this
Subdivision.
State union, in relation to an organisation, means:
(a) an association of employees which is registered under a State Act;
or
(b) an association of employees in Tasmania which is neither registered
under this Act nor part of an organisation registered under this Act;
and which is composed substantially of persons who, under the eligibility
rules of the organisation, are eligible to be members of the
organisation.
(1) The rules of an organisation of employees may authorise the
organisation to enter into agreements in the prescribed form with State unions
to the effect that members of the State union concerned who are ineligible State
members are eligible to become members of the organisation under the
agreement.
(2) If, under rules made under subsection (1), an organisation enters
into an agreement with a State union, the organisation must lodge a copy of the
agreement in the Industrial Registry.
Note: This subsection is a civil penalty provision (see
section 305).
(3) The agreement does not come into force unless and until the Industrial
Registrar enters particulars of the agreement in the register kept under
paragraph 13(1)(a).
(4) The Industrial Registrar must not enter particulars of the agreement
in that register unless he or she has been directed by the Commission to do
so.
(5) The Commission must not give such a direction to the Industrial
Registrar unless the Commission is satisfied that the agreement:
(a) is not contrary to:
(i) any object of this Act or the Workplace Relations Act; or
(ii) any subsisting order made by the Commission relating to the
organisation’s eligibility rules; or
(iii) any subsisting agreement or understanding of which the Commission is
aware that deals with the organisation’s entitlement to represent under
this Act, or the Workplace Relations Act, the industrial interests of a
particular class or group of employees; and
(b) was entered into only for the purpose of:
(i) overcoming any legal or practical difficulty that might arise in
connection with the participation, or possible participation, of ineligible
State members in the administration of the organisation or in the conduct of its
affairs; or
(ii) encouraging and facilitating an amalgamation between the organisation
and another organisation of employees.
(6) An organisation is not entitled to represent under this Act, or the
Workplace Relations Act, the industrial interests of persons who are eligible
for membership of the organisation only under an agreement entered into under
rules made under subsection (1).
(7) If a person who became a member of an organisation under an agreement
entered into under rules made under subsection (1) later becomes eligible
for membership of the organisation under its eligibility rules, the organisation
is not entitled to represent the industrial interests of the person until a
record of the person’s eligibility is entered in the register kept under
paragraph 230(1)(a).
(8) If it appears to the Commission:
(a) of its own motion; or
(b) on application by an interested person;
that an agreement entered into under rules made under subsection (1)
may no longer be operating for a purpose mentioned in
subparagraph (5)(b)(i) or (ii), the Commission must give to the parties to
the agreement an opportunity to make oral or written submissions as to whether
the agreement is still operating for such a purpose.
(9) If, after considering any such submissions and, in the case of an
application under paragraph (8)(b), the matters raised by the applicant,
the Commission is satisfied that the agreement is no longer operating for such a
purpose, the Commission may, by order, terminate the agreement.
(10) The Industrial Registrar must as soon as practicable:
(a) give notice of the termination to each party to the agreement;
and
(b) enter particulars of the termination in the register kept under
paragraph 13(1)(a).
(11) If an organisation and a State union agree, in writing, to terminate
an agreement entered into under rules made under subsection (1):
(a) the organisation must lodge in the Industrial Registry a copy of the
agreement to terminate; and
(b) the Industrial Registrar must as soon as practicable enter particulars
of the termination in the register kept under paragraph 13(1)(a).
Note: Paragraph (a) is a civil penalty provision (see
section 305).
(12) The termination of an agreement takes effect when particulars of the
termination are entered in the register as mentioned in paragraph (10)(b)
or (11)(b) and, when the termination takes effect, persons who became members of
the organisation under the agreement (other than a person whose eligibility for
membership of the organisation under its eligibility rules is recorded as
mentioned in subsection (7)) cease to be members of the
organisation.
(1) The rules of an organisation of employees may authorise the
organisation to enter into agreements with State unions setting out arrangements
for the management and control of the assets and liabilities of the organisation
and the State union concerned.
(2) The agreements must be in the prescribed form.
(3) If, under rules made under subsection (1), an organisation enters
into an agreement with a State union, the organisation must lodge a copy of the
agreement in the Industrial Registry.
Note: This subsection is a civil penalty provision (see
section 305).
(4) The agreement does not come into force unless and until the Industrial
Registrar enters particulars of the agreement in the register kept under
paragraph 13(1)(a).
(5) The Industrial Registrar must not enter particulars of the agreement
in that register unless he or she has been directed by the Commission to do
so.
(6) The Commission must not give such a direction to the Industrial
Registrar unless the Commission is satisfied that the agreement:
(a) is not contrary to any object of this Act or the Workplace Relations
Act; and
(b) does not adversely affect the interests of any lessor, lessee or
creditor of the organisation or State union.
(1) An organisation or a State union who is a party to an agreement made
under section 152 (a section 152 agreement) may apply to
the Federal Court for orders:
(a) requiring the other party to comply with the agreement; or
(b) resolving any difficulty in the operation or interpretation of the
agreement;
and the Court may make such orders as it thinks fit.
(2) In making an order under subsection (1), the Court must have
regard to the interests of any lessor, lessee or creditor of the organisation or
State union.
(3) An order made under subsection (1) has effect despite anything in
the rules of the organisation or State union who are the parties to the
agreement.
(1) If an organisation and a State union agree, in writing, to terminate
an agreement made under section 152 (a section 152
agreement), the termination has no effect unless the parties apply to
the Federal Court for approval under this section and the Court gives its
approval.
(2) The Court must not approve the termination unless:
(a) the parties have made an agreement (a termination
agreement) that makes appropriate provision for the management and
control of the assets and liabilities of the organisation and State union after
termination of the section 152 agreement; or
(b) the Court makes orders that will, in the Court’s opinion, make
appropriate provision for the management and control of the assets and
liabilities of the organisation and State union after termination of the
section 152 agreement.
(3) In determining whether a termination agreement, or orders, make
appropriate provision as required by subsection (2), the Court must have
regard to the following factors:
(a) the positions of the organisation and State union in relation to their
respective assets and liabilities before the section 152 agreement took
effect;
(b) the fairness, in all the circumstances, of the manner in which
relevant assets and liabilities acquired after the section 152 agreement
took effect will be dealt with after termination of the agreement;
(c) how the interests of lessors, lessees or creditors of the organisation
and the State union will be affected by the termination and subsequent
arrangements;
(d) any other factor that the Court considers relevant.
(4) If the Court approves a termination agreement, the Court must direct
the Industrial Registrar to enter particulars of the agreement in the register
kept under paragraph 13(1)(a), and particulars of any orders made by the Court
that relate to the agreement.
(5) A termination agreement takes effect on the day specified by the
Court. The day specified by the Court must not be a day earlier than the day on
which the Court approves the agreement.
The powers of the Commission under this Division are exercisable only by
a Presidential Member.
(1) Where the rules of an organisation do not, in the Industrial
Registrar’s opinion, make provision required by this Act, the Industrial
Registrar may, by instrument, after giving the organisation an opportunity, as
prescribed, to be heard on the matter, determine such alterations of the rules
as are, in the Industrial Registrar’s opinion, necessary to bring them
into conformity with this Act.
(2) Alterations determined under subsection (1) take effect on the
date of the instrument.
(1) If:
(a) in the course of an organisation being registered under
section 19, an undertaking was given under subsection 19(2) to avoid
demarcation disputes that might otherwise arise from an overlap between its
eligibility rules and the eligibility rules of another organisation;
and
(b) the first-mentioned organisation has breached the
undertaking;
the Commission may, by instrument, determine such alterations of the rules
of the organisation as are, in the Commission’s opinion, necessary to
remove the overlap.
(2) The Commission must give the organisation and the other organisation
an opportunity, as prescribed, to be heard on the matter.
(3) Alterations determined under subsection (1) take effect on the
date of the instrument.
(1) A change in the name of an organisation, or an alteration of the
eligibility rules of an organisation, does not take effect unless the Commission
consents to the change or alteration.
(2) The Commission may consent to a change or alteration in whole or part,
but must not consent unless the Commission is satisfied that the change or
alteration has been made under the rules of the organisation.
(3) The Commission must not consent to a change in the name of an
organisation unless the Commission is satisfied that the proposed new name of
the organisation:
(a) is not the same as the name of another organisation; and
(b) is not so similar to the name of another organisation as to be likely
to cause confusion.
(4) The Commission must not consent to an alteration of the eligibility
rules of an organisation if, in relation to persons who would be eligible for
membership because of the alteration, there is, in the opinion of the
Commission, another organisation:
(a) to which those persons could more conveniently belong; and
(b) that would more effectively represent those members.
(5) However, subsection (4) does not apply if the Commission accepts
an undertaking from the organisation seeking the alteration that the Commission
considers appropriate to avoid demarcation disputes that might otherwise arise
from an overlap between the eligibility rules of that organisation and the
eligibility rules of the other organisation.
(6) The Commission may refuse to consent to an alteration of the
eligibility rules of an organisation if satisfied that the alteration would
contravene an agreement or understanding to which the organisation is a party
and that deals with the organisation’s right to represent under this Act
and the Workplace Relations Act the industrial interests of a particular class
or group of persons.
(7) The Commission may also refuse to consent to an alteration of the
eligibility rules of an organisation if it:
(a) is satisfied that the alteration would change the effect of any order
made by the Commission under section 133 about the right of the
organisation to represent under this Act and the Workplace Relations Act
the industrial interests of a particular class or group of employees;
and
(b) considers that such a change would give rise to a serious risk of a
demarcation dispute which would prevent, obstruct or restrict the performance of
work in an industry, or harm the business of an employer.
(8) Subsections (6) and (7) do not limit the grounds on which the
Commission may refuse to consent to an alteration of the eligibility rules of an
organisation.
(9) Where the Commission consents, under subsection (1), to a change
or alteration, the change or alteration takes effect on:
(a) where a date is specified in the consent—that date; or
(b) in any other case—the day of the consent.
(10) This section does not apply to a change in the name, or an alteration
of the eligibility rules, of an organisation that is:
(a) determined by the Commission under subsection 163(7); or
(b) proposed to be made for the purposes of an amalgamation under
Part 2 of Chapter 3 or Part 3 of Schedule 2; or
(c) proposed to be made for the purposes of a withdrawal from amalgamation
under Part 3 of Chapter 3.
(1) An alteration of the rules (other than the eligibility rules) of an
organisation does not take effect unless particulars of the alteration have been
lodged in the Industrial Registry and a Registrar has certified that, in his or
her opinion, the alteration:
(a) complies with, and is not contrary to, this Act, the Workplace
Relations Act, awards, certified agreements and old IR agreements; and
(b) is not otherwise contrary to law; and
(c) has been made under the rules of the organisation.
(2) Where particulars of an alteration of the rules (other than the
eligibility rules) of an organisation have been lodged in the Industrial
Registry, a Registrar may, with the consent of the organisation, amend the
alteration for the purpose of correcting a typographical, clerical or formal
error.
(3) An alteration of rules that has been certified under
subsection (1) takes effect on the day of certification.
(4) This section does not apply in relation to an alteration of the rules
of an organisation that is:
(a) proposed to be made in relation to an application for an exemption
from subsection 144(1); or
(b) determined or certified by the Industrial Registrar under subsection
144(7) or section 156, 163, 246, 247 or 249; or
(c) proposed to be made for the purpose of an amalgamation under
Part 2 of Chapter 3 or Part 3 of Schedule 2; or
(d) proposed to be made for the purposes of a withdrawal from amalgamation
under Part 3 of Chapter 3.
Where there has been a change in the name of an organisation, or an
alteration of the eligibility rules of an organisation, under this Act, the
Industrial Registrar must:
(a) immediately enter, in the register kept under paragraph 13(1)(a),
particulars of the change or alteration, and the date of effect of the change or
alteration; and
(b) as soon as practicable after the organisation produces its certificate
of registration to the Industrial Registrar, amend the certificate accordingly
and return it to the organisation.
In proceedings under this Act or the Workplace Relations Act, a copy of
the rules of an organisation certified by a Registrar to be a true and correct
copy is evidence of the rules of the organisation.
The powers of the Commission under this Division are exercisable only by
a Presidential Member.
Application for order declaring rules contravene
section 142
(1) A member, or an applicant for membership, of an organisation may apply
to the Federal Court for an order under this section in relation to the
organisation.
(2) If the application is made by a member, the order under this section
may declare that the whole or a part of a rule of an organisation contravenes
section 142 or that the rules of an organisation contravene
section 142 in a particular respect.
(3) If the application is made by an applicant for membership, the order
under this section may declare that the whole or a part of a rule of an
organisation contravenes paragraph 142(1)(c) or (d) or that the rules of an
organisation contravene paragraph 142(1)(c) or (d) in a particular
respect.
(4) An organisation in relation to which an application is made under this
section must be given an opportunity of being heard by the Court.
(5) The Court may, without limiting any other power of the Court to
adjourn proceedings, adjourn proceedings in relation to an application under
this section for such period and on such terms and conditions as it considers
appropriate for the purpose of giving the organisation an opportunity to alter
its rules.
Effect of order
(6) Where an order under this section declares that the whole or a part of
a rule contravenes section 142, the rule or that part of the rule, as the
case may be, is taken to be void from the date of the order.
Appropriate authority may alter organisation’s rules
(7) Where:
(a) the Court makes an order declaring as mentioned in subsection (2)
or (3) in relation to the rules of an organisation; and
(b) at the end of 3 months from the making of the order, the rules of the
organisation have not been altered in a manner that, in the opinion of the
appropriate authority, brings them into conformity with section 142 in
relation to the matters that gave rise to the order;
the appropriate authority must, after giving the organisation an
opportunity, as prescribed, to be heard on the matter, determine, by instrument,
such alterations of the rules as will, in the appropriate authority’s
opinion, bring the rules into conformity with that section in relation to those
matters.
Note: For the meaning of appropriate authority
see subsection (12).
(8) The appropriate authority may, on the application of the organisation
made within the period of 3 months referred to in subsection (7) or within
any extension of the period, extend, or further extend, the period.
(9) Alterations determined under subsection (7) take effect on the
date of the instrument.
Court may make interim orders
(10) At any time after a proceeding under this section has been
instituted, the Court may make any interim orders that it considers appropriate
in relation to a matter relevant to the proceeding.
(11) An order under subsection (10) continues in force, unless
expressed to operate for a shorter period or sooner discharged, until the
completion of the proceeding concerned.
Definitions
(12) In this section:
appropriate authority means:
(a) in relation to the eligibility rules of an organisation—a
Presidential Member of the Commission; or
(b) in relation to the other rules of an organisation—the Industrial
Registrar.
(13) In this section, a reference to a rule, or the rules, of an
organisation includes a reference to a rule, or the rules, of a branch
of an organisation.
Application for order directing performance of rules
(1) A member of an organisation may apply to the Federal Court for an
order under this section in relation to the organisation.
Note: For the meaning of order under this
section, see subsection (9).
(2) Before making an order under this section, the Court must give any
person against whom the order is sought an opportunity of being heard.
(3) The Court may refuse to deal with an application for an order under
this section unless it is satisfied that the applicant has taken all reasonable
steps to try to have the matter that is the subject of the application resolved
within the organisation.
Court may make interim orders
(4) At any time after the making of an application for an order under this
section, the Court may make any interim orders that it considers appropriate
and, in particular, orders intended to further the resolution within the
organisation concerned of the matter that is the subject of the
application.
(5) An order under subsection (4) continues in force, unless
expressed to operate for a shorter period or sooner discharged, until the
completion of the proceeding concerned.
Order must not invalidate election etc.
(6) An order must not be made under this section that would have the
effect of treating as invalid an election to an office in an organisation or a
step in relation to such an election.
Court may declare that rules contravene section 142
(7) Where the Court, in considering an application under this section,
finds that the whole or a part of a rule of the organisation concerned
contravenes section 142 or that the rules of the organisation concerned
contravene that section in a particular respect, the Court may, by order, make a
declaration to that effect.
(8) Section 163 (other than subsections (1) to (5) (inclusive))
applies in relation to an order made under subsection (7) of this section
as if the order had been made under section 163.
Definitions
(9) In this section:
election includes a purported election that is a
nullity.
order under this section means an order giving directions for
the performance or observance of any of the rules of an organisation by any
person who is under an obligation to perform or observe those
rules.
This Chapter sets out rules about membership of organisations. It covers
entitlement to membership, circumstances in which a person may cease to be a
member, recovery of money from members by organisations, and conscientious
objection to membership.
This Chapter also gives the Federal Court a role in deciding a
person’s membership status.
Employee organisations
(1) Subject to any award or order of the Commission, a person who is
eligible to become a member of an organisation of employees under the
eligibility rules of the organisation that relate to the occupations in which,
or the industry or enterprise in relation to which, members are to be employed
is, unless of general bad character, entitled, subject to payment of any amount
properly payable in relation to membership:
(a) to be admitted as a member of the organisation; and
(b) to remain a member so long as the person complies with the rules of
the organisation.
Note 1: Rules of an organisation must provide for the
circumstances in which a person ceases to be a member of an organisation (see
subparagraph 141(1)(b)(vii)).
Note 2: If a member fails to pay his or her membership dues
for 24 months, this may result in the person ceasing to be a member, regardless
of the rules of the organisation (see section 172).
Note 3: See also section 168, which deals with a
special case of entitlement to membership (person treated as having been a
member).
(2) Subsection (1) does not entitle a person to remain a member of an
organisation if the person ceases to be eligible to become a member and the
rules of the organisation do not permit the person to remain a member.
(3) A person who is qualified to be employed in a particular occupation,
and seeks to be employed in the occupation:
(a) is taken to be an employee for the purposes of this section;
and
(b) in spite of anything in the rules of the organisation, is not to be
treated as not being eligible for membership of an organisation merely because
the person has never been employed in the occupation.
Employer organisations
(4) Subject to subsection (5) and to any award or order of the
Commission, an employer who is eligible to become a member of an organisation of
employers is entitled, subject to payment of any amount properly payable in
relation to membership:
(a) to be admitted as a member of the organisation; and
(b) to remain a member so long as the employer complies with the rules of
the organisation.
(5) Subsection (4) does not entitle an employer:
(a) to become a member of an organisation if the employer is:
(i) a natural person who is of general bad character; or
(ii) a body corporate whose constituent documents make provisions
inconsistent with the purposes for which the organisation was formed;
or
(b) to remain a member of an organisation if the employer ceases to be
eligible to become a member and the rules of the organisation do not permit the
employer to remain a member.
This section overrides inconsistent rules
(6) Subsections (1) and (4) have effect in spite of anything in the
rules of the organisation concerned, except to the extent that they expressly
require compliance with those rules.
Who may apply to Federal Court
(1) Where a question arises as to the entitlement under section 166
of a person:
(a) to be admitted as a member of an organisation (whether for the first
time or after having resigned, or been removed, as a member of the
organisation); or
(b) to remain a member of an organisation;
application may be made to the Federal Court for a declaration as to the
entitlement of the person under this section by either of the
following:
(c) the person;
(d) the organisation concerned.
Court may make orders relating to its declaration
(2) On the hearing of an application under subsection (1), the Court
may, in spite of anything in the rules of the organisation concerned, make such
order to give effect to its declaration as it considers appropriate.
(3) The orders which the Court may make under subsection (2)
include:
(a) an order requiring the organisation concerned to treat a person to
whom subsection 166(1) or (4) applies as being a member of the organisation;
and
(b) in the case of a question as to the entitlement under this section of
a person to be admitted as a member of an organisation, where the person has
previously been removed from membership of the organisation—an order that
the person be taken to have been a member of the organisation in the period
between the removal of the person from membership and the making of the
order.
Effect of orders
(4) On the making of an order as mentioned in paragraph (3)(a), or as
otherwise specified in the order, the person specified in the order becomes, by
force of this section, a member of the organisation concerned.
(5) Where:
(a) an order is made as mentioned in paragraph (3)(b); and
(b) the person specified in the order pays to the organisation concerned
any amount that the person would have been liable to pay to the organisation if
the person had been a member of the organisation during the period specified in
the order;
the person is taken to have been a member of the organisation during the
period specified in the order.
Court to give certain people opportunity to be heard
(6) Where an application is made to the Court under this
section:
(a) if the application is made by an organisation—the person whose
entitlement is in question must be given an opportunity of being heard by the
Court; and
(b) if the application is made by the person whose entitlement is in
question—the organisation concerned must be given an opportunity of being
heard by the Court.
(1) Where:
(a) a person who is eligible for membership of an organisation (other than
a member of the organisation or a person who has been expelled from the
organisation) applies to be admitted as a member of the organisation;
and
(b) the person has, up to a time within one month before the application,
acted in good faith as, and been treated by the organisation as, a
member;
the person is entitled to be admitted to membership and treated by the
organisation and its members as though the person had been a member during the
whole of the time when the person acted as, and was treated by the organisation
as, a member and during the whole of the time from the time of the
person’s application to the time of the person’s
admission.
(2) Where a question arises as to the entitlement under this section of a
person to be admitted as a member and to be treated as though the person had
been a member during the times referred to in subsection (1):
(a) the person; or
(b) the organisation;
may apply to the Federal Court for a declaration as to the entitlement of
the person under this section.
(3) Subject to subsection (5), the Court may, in spite of anything in
the rules of the organisation concerned, make such orders (including mandatory
injunctions) to give effect to its determination as it considers
appropriate.
(4) The orders that the Court may make under subsection (3) include
an order requiring the organisation concerned to treat a person to whom
subsection (1) applies as being a member of the organisation and as having
been a member during the times referred to in subsection (1).
(5) Where an application is made to the Court under this
section:
(a) if the application is made by an organisation—the person whose
entitlement is in question must be given an opportunity to be heard by the
Court; and
(b) if the application is made by the person whose entitlement is in
question—the organisation concerned must be given an opportunity to be
heard by the Court.
An organisation must, at the request of a person who is a member, give to
the person, within 28 days after the request is made, a statement
showing:
(a) that the person is a member of the organisation; and
(b) where there are categories of membership of the organisation—the
category of the person’s membership; and
(c) if the person expressly requests—whether the person is a
financial member of the organisation.
Note: This section is a civil penalty provision (see
section 305).
The Federal Court may at any time, in a proceeding under this Act or the
Workplace Relations Act, order such rectifications of the register of members of
an organisation as it considers necessary.
The Federal Court may, on the application of an organisation, order that
a person’s membership of that organisation or another organisation is to
cease from a day, and for a period, specified in the order.
(1) If:
(a) the rules of an organisation require a member to pay dues in relation
to the person’s membership of the organisation; and
(b) the member has not paid the amount; and
(c) a continuous period of 24 months has elapsed since the amount became
payable; and
(d) the member’s name has not been removed from the register kept by
the organisation under paragraph 230(1)(a);
the organisation must remove the name and postal address of the member from
the register within 12 months after the end of the 24 month period.
Note: This subsection is a civil penalty provision (see
section 305).
(2) In calculating a period for the purposes of paragraph (1)(c), any
period in relation to which the member was not required by the rules of the
organisation to pay the dues is to be disregarded.
(3) A person whose name is removed from the register under this section
ceases to be a member of the organisation on the day his or her name is removed.
This subsection has effect in spite of anything in the rules of the
organisation.
Note: A non-financial member’s membership might cease
and his or her name be removed from the register earlier than is provided for by
this section if the organisation’s own rules provide for this to
happen.
(1) If:
(a) a person applies for membership of an organisation within 6 months
after the person’s membership has ceased under section 172;
and
(b) the application is accepted by the organisation;
the organisation must not require the person to pay any fee associated with
a new membership (other than membership dues) in relation to the membership for
which the person has applied.
(2) This section is not to be taken to prevent an organisation requiring
(whether by means of its rules or otherwise) payment of outstanding dues in
order for a person to maintain continuity of financial membership.
(1) A member of an organisation may resign from membership by written
notice addressed and delivered to a person designated for the purpose in the
rules of the organisation or a branch of the organisation.
Note: The notice of resignation can be given electronically
if the organisation’s rules allow for this (see section 9 of the
Electronic Transactions Act 1999).
(2) A notice of resignation from membership of an organisation takes
effect:
(a) where the member ceases to be eligible to become a member of the
organisation:
(i) on the day on which the notice is received by the organisation;
or
(ii) on the day specified in the notice, which is a day not earlier than
the day when the member ceases to be eligible to become a member;
whichever is later; or
(b) in any other case:
(i) at the end of 2 weeks, or such shorter period as is specified in the
rules of the organisation, after the notice is received by the organisation;
or
(ii) on the day specified in the notice;
whichever is later.
(3) Any dues payable but not paid by a former member of an organisation,
in relation to a period before the member’s resignation from the
organisation took effect, may be sued for and recovered in the name of the
organisation, in a court of competent jurisdiction, as a debt due to the
organisation.
(4) A notice delivered to the person mentioned in subsection (1) is
taken to have been received by the organisation when it was delivered.
(5) A notice of resignation that has been received by the organisation is
not invalid because it was not addressed and delivered in accordance with
subsection (1).
(6) A resignation from membership of an organisation is valid even if it
is not effected in accordance with this section if the member is informed in
writing by or on behalf of the organisation that the resignation has been
accepted.
Note: Regulations may require employers who offer payroll
deduction facilities to inform employees that cessation of payroll deduction by
an employee does not constitute resignation (see
section 359).
A person must not, in an application made under this Act or the Workplace
Relations Act, make a statement about the person’s membership of an
organisation if the person knows, or is reckless as to whether, the statement is
false or misleading.
Note: This section is a civil penalty provision (see
section 305).
A person (the first person) must not provide information
about resignation from an organisation to a member, or a person eligible to
become a member, of the organisation if the person knows, or is reckless as to
whether, the information is false or misleading.
Note: This section is a civil penalty provision (see
section 305).
(1) A dispute between an organisation and any of its members is to be
decided under the rules of the organisation.
(2) Any fine, fee, levy or dues payable to an organisation by a member in
relation to a period after the organisation was registered may be sued for and
recovered, in the name of the organisation, as a debt due to the organisation,
in a court of competent jurisdiction.
(3) A court of competent jurisdiction may, on application brought in the
name of an organisation, order the payment by a member of any contribution (not
exceeding $20) to a penalty incurred or money payable by the organisation under
an award, order, certified agreement or old IR agreement.
(1) In spite of subsection 177(2), legal proceedings for the recovery of
an amount payable by a person in relation to the person’s membership of an
organisation must not be commenced after the end of the period of 12 months
starting on the day on which the amount became payable.
(2) The amount ceases to be payable at the end of the period if legal
proceedings to recover the amount have not been commenced by then.
(1) Where a person has ceased to be eligible to become a member of an
organisation and that person has not actively participated in the affairs of the
organisation since that time, those circumstances are a defence to an action by
the organisation for arrears of dues payable from the time when the person
ceased to be so eligible.
(2) Where such a defence is successful, that person is taken to have
ceased to be a member from the time that the person ceased to be so
eligible.
(1) Where a natural person:
(a) on application made to a Registrar, satisfies the Registrar:
(i) in the case of a person who is an employer or is otherwise eligible to
join an organisation of employers—that the person’s conscientious
beliefs do not allow the person to be a member of an association of the kind
described in paragraph 18(1)(a); or
(ii) in the case of a person who is an employee or is otherwise eligible
to join an organisation of employees—that the person’s conscientious
beliefs do not allow the person to be a member of an association of the kind
described in paragraph 18(1)(b) or 18(1)(c); and
(b) pays the prescribed fee to the Registrar;
the Registrar must issue to the person a certificate to that effect in the
prescribed form.
(2) An appeal does not lie to the Commission under section 81 of the
Workplace Relations Act against a decision of a Registrar to issue a certificate
under subsection (1).
(3) Subject to subsection (4), a certificate under
subsection (1) remains in force for the period (not exceeding 12 months)
specified in the certificate, but may, as prescribed, be renewed from time to
time by a Registrar for such period (not exceeding 12 months) as the Registrar
considers appropriate.
(4) Where:
(a) a Registrar becomes aware of a matter that was not known to the
Registrar when a certificate was issued by the Registrar to a person under
subsection (1); and
(b) if the Registrar had been aware of the matter when the application for
the certificate was being considered, the Registrar would not have issued the
certificate;
the Registrar may, after giving the person an opportunity, as prescribed,
to show cause why the certificate should not be revoked, revoke the
certificate.
(5) The holding by an employer of a certificate issued under
subsection (1) does not prevent the employer being a party to an industrial
dispute.
(6) In this section:
appropriate organisation, in relation to a person who has
made an application under subsection (1), means the organisation that, in
the opinion of the Registrar dealing with the application, would, but for the
person’s conscientious beliefs, be the appropriate organisation for the
person to join having regard to:
(a) in the case of a person who is an employer—the industry in
relation to which the person is an employer; or
(b) in the case of a person who is otherwise eligible to join an
organisation of employers—the business carried on by the person;
or
(c) in the case of a person who is an employee—the past employment
(if any), and the future prospects of employment, of the person; or
(d) in the case of a person who is otherwise eligible to join an
organisation of employees—the work done by the person or the enterprise in
which the person works.
conscientious beliefs means any conscientious beliefs,
whether the grounds for the beliefs are or are not of a religious character and
whether the beliefs are or are not part of the doctrine of any
religion.
prescribed fee, in relation to a person who has made an
application under subsection (1), means a fee equal to the annual
subscription that would be payable by the person if the person were a member of
the appropriate organisation.
This Chapter deals with elections for positions in organisations. It does
not deal with other kinds of ballots (for example, amalgamation and
disamalgamation ballots, which are dealt with in Chapter 3).
Part 2 sets out the rules for the conduct of elections. Elections for
office must generally be conducted by the AEC. This Part also requires the AEC
to conduct elections for some positions that are not offices, if the
organisation concerned requests the AEC to do so.
Part 3 provides for inquiries by the Federal Court into elections for
office.
Part 4 sets out the circumstances in which people are disqualified
from holding, or being elected to hold, office in organisations.
Elections for office
(1) Each election for an office in an organisation, or branch of an
organisation, must be conducted by the AEC. The expenses of conducting such an
election are to be borne by the Commonwealth.
Note: For the meaning of office, see
section 9.
(2) Subsection (1) does not apply in relation to an election for an
office in an organisation or branch while an exemption granted to the
organisation or branch, as the case may be, under section 186 is in force
in relation to elections in the organisation or branch or an election for the
particular office.
Elections for other positions
(3) If an organisation or branch of an organisation has made a request
under section 187 in relation to an election for a position other than an
office, the AEC must conduct the election.
(1) A committee of management of an organisation or branch of an
organisation may lodge in the Industrial Registry an application for the
organisation or branch, as the case may be, to be exempted from subsection
182(1) in relation to elections for offices, or an election for a particular
office, in the organisation or branch.
(2) An application may not be made by a committee of management of an
organisation or branch of an organisation unless the committee of
management:
(a) has resolved to make the application; and
(b) has notified the members of the organisation or branch, as prescribed,
of the making of the resolution.
(3) An application under subsection (1) must be accompanied by a
declaration by a member of the committee of management concerned stating that
subsection (2) has been complied with.
(4) Where an application has been made under subsection (1), the
Industrial Registrar must cause a notice setting out details of the application
to be published, as prescribed, for the purpose of bringing the notice to the
attention of members of the organisation or branch concerned.
(5) Where the rules of an organisation require an office to be filled by
an election by the members, or by some of the members, of a single branch of the
organisation, an election to fill the office is taken to be an election for the
branch.
(1) Objection may be made to an application under subsection 183(1) by a
member of the organisation or branch of the organisation in relation to which
the application was made.
(2) The Industrial Registrar or, if the Industrial Registrar directs,
another Registrar must, as prescribed, hear the application and any objections
duly made.
(1) A person commits an offence if the person uses, causes or inflicts any
violence, injury, punishment, damage, loss or disadvantage to another person
because the other person has lodged an objection under subsection
184(1).
Maximum penalty: 30 penalty units.
(2) A person commits an offence if the person:
(a) gives, or offers or promises to give, any property or benefit of any
kind with the intention of influencing or affecting another person because the
other person proposes to lodge, or has lodged, an objection under subsection
184(1); or
(b) asks for or obtains, or offers or agrees to ask for or obtain, any
property or benefit of any kind (whether for that person or another person), on
the understanding that the lodging of an objection under subsection 184(1) will
be influenced or affected in any way.
Maximum penalty: 30 penalty units.
(1) Where an application in relation to an organisation or branch has been
lodged under subsection 183(1) and, after any objections duly made have been
heard, a Registrar is satisfied:
(a) that the rules of the organisation or branch comply with the
requirements of this Act relating to the conduct of elections for office;
and
(b) that, if the organisation or branch is exempted from subsection
182(1), the elections for the organisation or branch, or the election for the
particular office, as the case may be, will be conducted:
(i) under the rules of the organisation or branch, as the case may be, and
this Act; and
(ii) in a manner that will afford members entitled to vote at such
elections or election an adequate opportunity of voting without
intimidation;
the Registrar may exempt the organisation or branch from subsection 182(1)
in relation to elections for the organisation or branch, or the election for the
particular office, as the case may be.
(2) A Registrar may revoke an exemption granted to an organisation or
branch under subsection (1):
(a) on application by the committee of management of the organisation or
branch; or
(b) if the Registrar:
(i) is no longer satisfied as mentioned in subsection (1);
and
(ii) has given the committee of management of the organisation or branch
an opportunity, as prescribed, to show cause why the exemption should not be
revoked.
(1) If the rules of an organisation or branch of an organisation require
an election to be held for a position other than an office in the organisation
or branch, the organisation or branch, as the case may be, may request the AEC
to conduct the election.
Note: For the meaning of office, see
section 9.
(2) The request must be:
(a) in writing; and
(b) signed by an officer of the organisation or branch who is authorised
to do so by the committee of management of the organisation or branch;
and
(c) given to the AEC.
(3) A copy of the request must also be lodged in the Industrial Registry
at the same time as the prescribed information in relation to the election is
lodged (see section 189).
If the rules of an organisation provide for elections for office by
postal ballot, a vote in the election cannot be counted unless:
(a) the ballot paper on which it is recorded is returned in the
declaration envelope provided to the voter with the ballot paper; and
(b) if the postal ballot is conducted by the AEC—the declaration
envelope is in the approved form.
Note: For the meaning of declaration envelope
and approved, see section 6.
(1) An organisation or branch of an organisation must lodge in the
Industrial Registry the prescribed information in relation to an election that
is to be conducted by the AEC.
(2) The prescribed information must be lodged before the prescribed day or
such later day as a Registrar allows.
Note: This subsection is a civil penalty provision (see
section 305).
(3) If:
(a) the prescribed information is lodged in the Industrial Registry by the
organisation or branch (whether or not before the prescribed day or the later
day allowed by a Registrar); and
(b) a Registrar is satisfied that an election is required to be held under
the rules of the organisation or branch; and
(c) if the election is not an election for an office—the
organisation or branch has made a request under section 187;
a Registrar must arrange for the conduct of the election by the
AEC.
An organisation or branch commits an offence if it uses, or allows to be
used, its property or resources to help a candidate against another candidate in
an election under this Part for an office or other position.
Maximum penalty: 100 penalty units.
(1) A person (the returning officer) conducting an election
under this Part for an office or other position in an organisation, or branch of
an organisation, may give a written request to an officer or employee of the
organisation or branch to make available the register of members, or part of the
register, kept by the organisation under section 230, to the returning
officer for the purposes of the ballot.
(2) An officer or employee of the organisation or branch commits an
offence if he or she fails to comply with a request under
subsection (1).
Maximum penalty: 30 penalty units.
(3) Subsection (2) does not apply if the officer or employee complied
with the request as promptly as he or she was capable.
Note: A defendant bears an evidential burden in relation to
the matter mentioned in subsection (3).
(4) An offence against subsection (2) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(5) If the register, or the relevant part of the register, is kept in
electronic form, the returning officer may require the register to be made
available in that form.
(6) A request under subsection (1) must specify the period within
which the register must be made available. The period must not be less than 7
days after the request is given.
(1) If:
(a) a returning officer makes a request under section 191 in relation
to the organisation’s register; and
(b) the returning officer gives written notice of the request to the
secretary or other prescribed officer of the organisation or branch
concerned;
the secretary or other prescribed officer of the organisation must make a
declaration, in accordance with subsection (2), that the register has been
maintained as required by subsection 230(2).
Note: This subsection is a civil penalty provision (see
section 305).
(2) The declaration must be:
(a) signed by the person making it; and
(b) given to the returning officer, and lodged in the Industrial Registry,
as soon as practicable but no later than the day before the first day of voting
in the relevant election.
(3) A person must not, in a declaration for the purposes of
subsection (1), make a statement if the person knows, or is reckless as to
whether, the statement is false or misleading.
Note: This subsection is a civil penalty provision (see
section 305).
(1) If an electoral official is conducting an election, or taking a step
in relation to an election, for an office or other position in an organisation,
or branch of an organisation, the electoral official:
(a) subject to paragraph (b), must comply with the rules of the
organisation or branch; and
(b) may, in spite of anything in the rules of the organisation or branch,
take such action, and give such directions, as the electoral official considers
necessary:
(i) to ensure that no irregularities occur in or in relation to the
election; or
(ii) to remedy any procedural defects that appear to the electoral
official to exist in the rules.
Note: For example, an electoral official might take steps,
or ask another person to take steps, to ensure the security of ballot papers, or
other material, sent to voters at their workplace.
(2) A person commits an offence if the person does not comply with a
direction under subsection (1).
Maximum penalty: 30 penalty units.
(3) Subsection (2) does not apply so far as the person is not capable
of complying.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (3) (see subsection 13.3(3) of the Criminal
Code).
(4) Subsection (2) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter mentioned in subsection (4), see subsection 13.3(3) of the
Criminal Code.
(5) An offence against subsection (2) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(6) An election for an office or other position conducted by an electoral
official, or step taken in relation to such an election, is not invalid merely
because of a breach of the rules of the organisation or branch because
of:
(a) action taken under subsection (1); or
(b) an act done in compliance with a direction under
subsection (1).
(7) If an electoral official conducting, or taking a step in connection
with, an election for an office or other position:
(a) dies or becomes unable to complete the conduct of the election or the
taking of the step; or
(b) ceases to be qualified to conduct the election or to take the
step;
the Electoral Commissioner must arrange for the completion of the conduct
of the election, or the taking of the step, by another electoral
official.
A person commits an offence if the person hinders or obstructs:
(a) an electoral official in the performance of functions in relation to
an election for an office or other position in an organisation or branch of an
organisation; or
(b) any other person in complying with a direction under subsection
193(1).
Maximum penalty: 30 penalty units.
(1) This section applies in relation to an election for an office or other
position in an organisation or branch of an organisation.
Interference with ballot papers
(2) A person commits an offence if the person:
(a) impersonates another person with the intention of:
(i) securing a ballot paper to which the impersonator is not entitled;
or
(ii) casting a vote; or
(b) does an act that results in a ballot paper or envelope being
destroyed, defaced, altered, taken or otherwise interfered with; or
(c) fraudulently puts a ballot paper or other paper:
(i) into a ballot box or other ballot receptacle; or
(ii) into the post; or
(d) delivers a ballot paper or other paper to a person other than a person
receiving ballot papers for the purposes of the ballot; or
(e) records a vote that the person is not entitled to record; or
(f) records more than one vote; or
(g) forges a ballot paper or envelope, or utters a ballot paper or
envelope that the person knows to be forged; or
(h) provides a ballot paper without authority; or
(i) obtains a ballot paper which the person is not entitled to obtain;
or
(j) has possession of a ballot paper which the person is not entitled to
possess; or
(k) does an act that results in a ballot box or other ballot receptacle
being destroyed, taken, opened or otherwise interfered with.
Maximum penalty: 30 penalty units.
Threats in relation to votes, candidature etc.
(3) A person commits an offence if the person threatens, offers or
suggests, or uses, causes or inflicts, any violence, injury, punishment, damage,
loss or disadvantage with the intention of influencing or affecting:
(a) any candidature or withdrawal of candidature; or
(b) any vote or omission to vote; or
(c) any support or opposition to any candidate; or
(d) any promise of any vote, omission, support or opposition.
Maximum penalty: 30 penalty units.
Offers of bribes
(4) A person commits an offence if the person gives, or promises or offers
to give, any property or benefit of any kind to a person with the intention of
influencing or affecting any of the following:
(a) any candidature or withdrawal of candidature;
(b) any vote or omission to vote;
(c) any support or opposition to any candidate;
(d) any promise of any vote, omission, support or opposition.
Maximum penalty: 30 penalty units.
Acceptance of bribes
(5) A person commits an offence if the person asks for or obtains, or
offers or agrees to ask for or obtain, any property or benefit of any kind
(whether for that person or another person), on the understanding that any of
the following will be influenced or affected in any way:
(a) any candidature or withdrawal of candidature;
(b) any vote or omission to vote;
(c) any support or opposition to any candidate;
(d) any promise of any vote, omission, support or opposition.
Maximum penalty: 30 penalty units.
Secrecy of vote
(6) A person (the relevant person) commits an
offence:
(a) if the relevant person requests, requires or induces another person to
show a ballot paper to the relevant person, or permits the relevant person to
see a ballot paper, in such a manner that the relevant person can see the vote,
while the ballot paper is being marked or after it has been marked; or
(b) if the relevant person is a person performing duties for the purposes
of the election—if the relevant person shows to another person, or permits
another person to have access to, a ballot paper used in the election, otherwise
than in the performance of the duties.
Maximum penalty: 30 penalty units.
In spite of anything in the rules of an organisation or branch of an
organisation, where:
(a) 2 or more candidates are nominated for an election in relation to an
office in the organisation or branch; and
(b) one of those candidates dies before the close of the ballot;
the election must be discontinued and a new election held.
Requirement for AEC to make report
(1) After the completion of an election conducted under this Part by the
AEC, the AEC must give a written report on the conduct of the election
to:
(a) the Industrial Registrar; and
(b) the organisation or branch for whom the election was
conducted.
Note: The AEC may be able, in the same report, to report on
more than one election it has conducted for an organisation. However,
regulations made under paragraph 359(2)(c) may impose requirements about the
manner and timing of reports.
(2) The report must include details of the prescribed matters.
Contents of report—register of members
(3) If the AEC is of the opinion that the register of members, or the part
of the register, made available to the AEC for the purposes of the election
contained, at the time of the election:
(a) an unusually large proportion of members’ addresses that were
not current; or
(b) in the case of a register kept by an organisation of
employees—an unusually large proportion of members’ addresses that
were workplace addresses;
this fact must be included in the report, together with a reference to any
relevant model rules which, in the opinion of the AEC, could assist the
organisation or branch to address this matter.
Note: Model rules are relevant only to the conduct of
elections for office, not for elections for other positions (see
section 147).
Contents of report—difficult rules
(4) If the report identifies a rule of the organisation or branch that, in
the AEC’s opinion, was difficult to interpret or apply in relation to the
conduct of the election, the report must also refer to any relevant model rules,
which in the opinion of the AEC, could assist the organisation or branch to
address this matter.
Note: For model rules, see
section 147.
Subsection (3) relevant only for postal ballots
(5) Subsection (3) applies only in relation to elections conducted by
postal ballot.
Note: An organisation can obtain an exemption from the
requirement to hold elections for office by postal ballot (see
section 144).
Organisation must respond to “difficult rules”
report
(1) If an organisation or branch is given a post-election report under
section 197 that identifies a rule that was difficult to interpret or
apply, the organisation or branch must, within 30 days, give a written response
to the AEC on that aspect of the report.
Note: This subsection is a civil penalty provision (see
section 305).
(2) The response must specify whether the organisation or branch intends
to take any action in relation to the rule, and if so, what action it intends to
take.
Organisation must make its response available to members
(3) The organisation or branch must also make available to its members the
part of the report dealing with the difficult rule or rules (the relevant
extract) and the organisation’s or branch’s response to
it.
(4) The relevant extract must be made available to members no later than
the day on which the response is to be made available by the organisation or
branch to members.
Note: This subsection is a civil penalty provision (see
section 305).
(5) The response must be made available to members:
(a) if the response is not to be published in the next edition of the
organisation or branch journal—within 30 days after it is given to the
AEC; and
(b) if the response is to be so published—in the next
edition.
Note: This subsection is a civil penalty provision (see
section 305).
(6) Without limiting the ways in which an organisation or branch may
comply with subsection (3), it complies if it does all of the
following:
(a) publishes, in the next edition of the organisation or branch journal,
a copy of the relevant extract of the report and the organisation’s
response;
(b) within 30 days after the day on which it gives its response to the
AEC:
(i) lodges in the Industrial Registry a copy of the relevant extract of
the report and a copy of the response given to the AEC under
subsection (1), together with a declaration that the organisation or branch
will provide a copy of the extract and the organisation’s response to any
member who so requests; and
(ii) gives notice in the next edition of the organisation or branch
journal, or in an appropriate newspaper, that a copy of the relevant extract of
the report and the organisation’s response is available, upon request,
from the organisation or branch to each member free of charge;
(c) meets the requirements of any regulations made for the purposes of
this subsection.
Declaration that report and response will be available
(7) A declaration under paragraph (6)(b) must be signed by the
secretary or other prescribed officer of the organisation or branch (as the case
requires).
(8) A person must not, in a declaration for the purposes of
paragraph (6)(b), make a statement if the person knows, or is reckless as
to whether, the statement is false or misleading.
Note: This subsection is a civil penalty provision (see
section 305).
Definitions
(9) In this section:
appropriate newspaper, in relation to an organisation or
branch, means a newspaper, or newspapers, whose circulation covers the main
geographical areas where members of the organisation or branch reside.
next edition, in relation to publishing a relevant extract of
a post-election report or response in a journal, means the first edition of the
journal in which it is reasonably practicable for the report or the response (as
the case may be) to be published.
(1) In spite of anything in the rules of an organisation or a branch of an
organisation, where an election for an office in the organisation or branch is
conducted by the AEC, the organisation or branch, and every officer and employee
of the organisation or branch who is able to do so, and the AEC, must take such
steps as are necessary to ensure that all ballot papers, envelopes, lists and
other documents relevant to the election are preserved and kept by the AEC for
one year after the completion of the election.
(2) In spite of anything in the rules of an organisation or a branch of an
organisation, where an election for an office in the organisation or branch is
conducted by the organisation or branch, the organisation or branch, and every
officer and employee of the organisation or branch who is able to do so, must
take such steps as are necessary to ensure that all ballot papers, envelopes,
lists and other documents relevant to the election are preserved and kept at the
office of the organisation or branch, as the case may be, for one year after the
completion of the election.
(3) An organisation or branch of an organisation commits an offence if the
organisation or branch contravenes subsection (1) or (2).
Maximum penalty: 100 penalty units.
(4) Subsection (3) does not apply if the organisation has a
reasonable excuse.
Note: A defendant bears an evidential burden in relation to
the matter mentioned in subsection (4), see subsection 13.3(3) of the
Criminal Code.
(5) An officer or employee of an organisation or branch commits an offence
if the officer or employee contravenes subsection (1) or (2).
Maximum penalty: 20 penalty units.
(6) Subsection (5) does not apply if the officer or employee has a
reasonable excuse.
Note: A defendant bears an evidential burden in relation to
the matter mentioned in subsection (6), see subsection 13.3(3) of the
Criminal Code.
(7) Offences against subsections (3) and (5) are offences of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
When member of organisation may apply for inquiry
(1) If a person who is, or within the preceding period of 12 months has
been, a member of an organisation claims that there has been an irregularity in
relation to an election for an office in the organisation or a branch of the
organisation, the person may make an application for an inquiry by the Federal
Court into the matter.
Note: For the meaning of irregularity, see
section 6.
When Electoral Commissioner must apply for an inquiry
(2) If the Electoral Commissioner believes that the result of an election
for an office has been affected by an irregularity in relation to the election,
the Electoral Commissioner must make an application for an inquiry by the
Federal Court into the matter.
When Electoral Commissioner may apply for an inquiry
(3) If the Electoral Commissioner believes that there has been an
irregularity in relation to an election for an office, the Electoral
Commissioner may make an application for an inquiry by the Federal Court into
the matter.
Note: This section relates only to elections for office. It
does not apply to elections for positions other than offices (which can also be
conducted under Part 2).
Where:
(a) an application for an inquiry has been lodged with the Federal Court
under section 200; and
(b) the Court is satisfied that there are reasonable grounds for the
application;
the Court must fix a time and place for conducting the inquiry, and may
give such directions as it considers necessary to ensure that all persons who
are or may be justly entitled to appear at the inquiry are notified of the time
and place fixed and, where the Court fixes a time and place, the inquiry is
taken to have been instituted.
(1) Where an application for an inquiry has been lodged with the Federal
Court under section 200, the Court may authorise the Industrial Registrar
to arrange, for the purposes of the inquiry, for a designated Registry official
to take any action referred to in subsection (2).
(2) If a Registry official is designated by the Industrial Registrar for
the purposes of subsection (1), the actions that the official may take are
as follows:
(a) inspecting election documents;
(b) for the purposes of any such inspection, entering, with such
assistance as he or she considers necessary, any premises used or occupied by
the organisation, or a branch of the organisation, concerned in which he or she
believes election documents to be;
(c) giving a written notice to a person requiring the person to deliver to
him or her, within the period and in the manner specified in the notice, any
election documents in the possession or under the control of the
person;
(d) taking possession of any election documents;
(e) retaining any election documents delivered to him or her, or of which
he or she has taken possession, for such period as is necessary for the purposes
of the application and, if proceedings under this Part arise out of the
application, until the completion of the proceedings or such earlier time as the
Court orders.
(3) Before authorising any action under subsection (1), the Court
must, if it considers that, having regard to all the circumstances, a person
should be given an opportunity of objecting to the proposed action, give such an
opportunity to the person.
(4) The period specified in a notice given under paragraph (2)(c)
must specify a period of at least 14 days after the notice is given.
(5) A person commits an offence if the person:
(a) contravenes a requirement made under paragraph (2)(c);
or
(b) hinders or obstructs the Industrial Registrar, or a person acting on
his or her behalf, in the exercise of powers under
subsection (2).
Maximum penalty: 30 penalty units.
(6) Strict liability applies to paragraph (5)(a).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(7) Paragraph (5)(a) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter mentioned in subsection (7), see subsection 13.3(3) of the
Criminal Code.
(8) A person is not excused from producing an election document under this
section on the ground that the production of the document might tend to
incriminate the person or expose the person to a penalty.
(9) However:
(a) producing the document; or
(b) any information, document or thing obtained as a direct or indirect
consequence of producing the document;
is not admissible in evidence against the person in criminal proceedings or
proceedings that may expose the person to a penalty.
(10) In this section:
election documents, in relation to an election, means ballot
papers, envelopes, lists or other documents that have been used in, or are
relevant to, the election.
Issue of identity card
(1) The Industrial Registrar must issue an identity card to each
designated Registry official.
(2) The identity card must:
(a) be in the prescribed form; and
(b) include a recent photograph of the official.
Use of identity card
(3) A designated Registry official must carry the identity card at all
times when taking action under section 202.
(4) Before the official takes action under paragraph 202(2)(b) (entering
premises), the official must:
(a) inform the occupier of the premises that the official is authorised to
enter the premises; and
(b) show the identity card to the occupier.
(5) The official is not entitled to enter premises under paragraph
202(2)(b) if he or she has not complied with subsection (4).
Offence: failing to return identity card
(6) A person commits an offence if:
(a) the person holds or held an identity card; and
(b) the person ceases to be a Registry official; and
(c) the person does not, as soon as is practicable after so ceasing,
return the identity card to the Industrial Registrar.
Maximum penalty: 1 penalty unit.
(7) An offence against subsection (6) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(8) Subsection (6) does not apply if the identity card was lost or
destroyed.
Note: A defendant bears an evidential burden in relation to
the matter mentioned in subsection (8), see subsection 13.3(3) of the
Criminal Code.
(1) Where an inquiry into an election has been instituted, the Federal
Court may make one or more of the following orders:
(a) an order that no further steps are to be taken in the conduct of the
election or in carrying into effect the result of the election;
(b) an order that a person who has assumed an office, has continued to act
in an office, or claims to occupy an office, to which the inquiry relates may
act, or continue to act, in the office;
(c) an order that a person who has assumed an office, has continued to act
in an office, or claims to occupy an office, to which the inquiry relates must
not act in the office;
(d) an order that a person who holds, or last held before the election, an
office to which the inquiry relates may act, or continue to act, in the
office;
(e) where it considers that an order under paragraph (b) or (d) would
not be practicable, would be prejudicial to the efficient conduct of the affairs
of the organisation or would be inappropriate having regard to the nature of the
inquiry, an order that a member of the organisation or another person specified
in the order may act in an office to which the inquiry relates;
(f) an order incidental or supplementary to an order under this
subsection;
(g) an order varying or discharging an order under this
subsection.
(2) Where the Court orders that a person may act, or continue to act, in
an office, the person is, while the order remains in force and in spite of
anything in the rules of the organisation or a branch of the organisation, to be
taken to hold the office.
(3) An order under this section continues in force, unless expressed to
operate for a shorter period or sooner discharged, until the completion
of:
(a) the proceeding concerned in the Court in relation to the election;
and
(b) all matters ordered by the Court (otherwise than under this section)
in the proceeding.
(1) The Federal Court must allow to appear at an inquiry all persons who
apply to the Court for leave to appear and who appear to the Court to have an
interest in the inquiry, and the Court may order any other person to
appear.
(2) The persons appearing, or ordered under subsection (1) to appear,
at an inquiry are taken to be parties to the proceeding.
(3) For the purposes of this Part:
(a) the procedure of the Court is, subject to this Act and the
Rules of Court, within the discretion of the Court; and
(b) the Court is not bound to act in a formal manner and is not bound by
any rules of evidence, but may inform itself on any matter in such manner as it
considers just.
(1) At an inquiry, the Federal Court must inquire into and determine the
question whether an irregularity has happened in relation to the election, and
such further questions concerning the conduct and results of the election as the
Court considers necessary.
(2) For the purposes of subsection (1), the Court must determine
whether an irregularity has happened on the balance of probabilities.
(3) In the course of conducting an inquiry, the Court may make such orders
(including an order for the recounting of votes) as the Court considers
necessary.
(4) If the Court finds that an irregularity has happened, the Court may,
subject to subsection (5), make one or more of the following
orders:
(a) an order declaring the election, or any step in relation to the
election, to be void;
(b) an order declaring a person purporting to have been elected not to
have been elected, and declaring another person to have been elected;
(c) an order directing the Industrial Registrar to make
arrangements:
(i) in the case of an uncompleted election—for a step in relation to
the election (including the calling for nominations) to be taken again and for
the uncompleted steps in the election to be taken; or
(ii) in the case of a completed election—for a step in relation to
the election (including the calling for nominations) to be taken again or a new
election to be held;
(d) an order (including an order modifying the operation of the rules of
the organisation to the extent necessary to enable a new election to be held, a
step in relation to an election to be taken again or an uncompleted step in an
election to be taken) incidental or supplementary to, or consequential on, any
other order under this section.
(5) The Court must not declare an election, or any step taken in relation
to an election, to be void, or declare that a person was not elected, unless the
Court is of the opinion that, having regard to the irregularity found, and any
circumstances giving rise to a likelihood that similar irregularities may have
happened or may happen, the result of the election may have been affected, or
may be affected, by irregularities.
(6) Without limiting the power of the Court to terminate a proceeding
before it, the Court may, at any time after it begins an inquiry into an
election, terminate the inquiry or the inquiry to the extent that it relates to
specified matters.
Where the Federal Court makes an order under paragraph 206(4)(c) in
relation to an election, the Industrial Registrar must arrange for the taking of
the necessary steps in relation to the election, or for the conduct of the new
election, as the case requires, by the AEC.
The Federal Court may grant such injunctions (including mandatory
injunctions) as it considers necessary for the effective performance of its
functions and the enforcement of its orders under this Part.
(1) Where the Federal Court declares void the election of a person who
has, since the election, purported to act in the office to which the person
purported to have been elected, or declares such a person not to have been
elected:
(a) subject to a declaration under paragraph (b), all acts done by or
in relation to the person that could validly have been done by or in relation to
the person if the person had been duly elected are valid; and
(b) the Court may declare an act referred to in paragraph (a) to have
been void, and, if the Court does so, the act is taken not to have been validly
done.
(2) Where an election is held, or a step in relation to an election is
taken, under an order of the Court, the election or step is not invalid merely
because of a departure from the rules of the organisation or branch concerned
that was required by the order of the Court.
This Part imposes certain limitations and requirements on people who hold,
or wish to hold, office in an organisation and who have been convicted of a
prescribed offence (see Division 2) or on whom the Federal Court has
imposed a pecuniary penalty by order under subsection 306(1) for contravening a
provision of Part 3 of Chapter 9 (see Division 3).
This Division imposes certain limitations and requirements on people who
hold, or wish to hold, office in an organisation and who have been convicted of
a prescribed offence.
Section 215 sets out the basic limitation for people convicted of a
prescribed offence. The remaining sections in this Division deal with the ways
the rule in section 215 operates and may be modified.
In this Division, a prescribed offence is:
(a) an offence under a law of the Commonwealth, a State or Territory, or
another country, involving fraud or dishonesty and punishable on conviction by
imprisonment for a period of 3 months or more; or
(b) an offence against section 51, 72, 105, 185, 191, subsection
193(2), section 194, 195, 199 or subsection 202(5); or
(c) any other offence in relation to the formation, registration or
management of an association or organisation; or
(d) any other offence under a law of the Commonwealth, a State or
Territory, or another country, involving the intentional use of violence towards
another person, the intentional causing of death or injury to another person or
the intentional damaging or destruction of property.
For the purposes of this Division, a person:
(a) is convicted of a prescribed offence whether the person is convicted
before or after the commencement of this Part; and
(b) is not convicted of a prescribed offence merely because the person is
convicted, otherwise than on indictment, of an offence referred to in paragraph
212(c); and
(c) is not convicted of a prescribed offence referred to in paragraph
212(d) unless the person has served, or is serving, a term of imprisonment in
relation to the offence.
Note: Other terms used in this Part may be defined in
section 6.
(1) A certificate purporting to be signed by the registrar or other proper
officer of a federal court, a court of a State or Territory, or a court of
another country, stating that a person was convicted by the court of a specified
offence on a specified day is, for the purpose of an application made under
section 215, 216 or 217, evidence that the person was convicted of the
offence on that day.
(2) A certificate purporting to be signed by the registrar or other proper
officer of a federal court, a court of a State or Territory, or a court of
another country, stating that a person was acquitted by the court of a specified
offence, or that a specified charge against the person was dismissed by the
court, is, for the purpose of an application made under section 215, 216 or
217, evidence of the facts stated in the certificate.
(3) A certificate purporting to be signed by the officer in charge of a
prison stating that a person was released from the prison on a specified day is,
for the purpose of an application made under section 215, 216 or 217,
evidence that the person was released from the prison on that day.
(1) A person who has been convicted of a prescribed offence is not
eligible to be a candidate for an election, or to be elected or appointed, to an
office in an organisation unless:
(a) on an application made under section 216 or 217 in relation to
the conviction of the person for the prescribed offence:
(i) the person was granted leave to hold office in organisations;
or
(ii) the person was refused leave to hold office in organisations but,
under paragraph 216(2)(b) or 217(2)(b), the Federal Court specified a period for
the purposes of this subsection, and the period has elapsed since the person was
convicted of the prescribed offence or, if the person served a term of
imprisonment in relation to the prescribed offence, since the person was
released from prison; or
(b) in any other case—a period of 5 years has elapsed since the
person was convicted of the prescribed offence or, if the person served a term
of imprisonment in relation to the prescribed offence, since the person was
released from prison.
(2) Where a person who holds an office in an organisation is convicted of
a prescribed offence, the person ceases to hold the office at the end of the
period of 28 days after the conviction unless, within the period, the person
makes an application to the Federal Court under section 216 or
217.
(3) If a person who holds an office in an organisation makes an
application to the Federal Court under section 216 or 217 and the
application is not determined:
(a) except in a case to which paragraph (b) applies—within the
period of 3 months after the date of the application; or
(b) if the Court, on application by the person, has extended the
period—within that period as extended;
the person ceases to hold the office at the end of the period of 3 months
or the period as extended, as the case may be.
(4) The Court must not, under paragraph (3)(b), extend a period for
the purposes of subsection (3) unless:
(a) the application for the extension is made before the end of the period
of 3 months referred to in paragraph (3)(a); or
(b) if the Court has previously extended the period under
paragraph (3)(b)—the application for the further extension is made
before the end of the period as extended.
(5) An organisation, a member of an organisation or the Industrial
Registrar may apply to the Federal Court for a declaration whether, because of
the operation of this section or section 216 or 217:
(a) a person is not, or was not, eligible to be a candidate for election,
or to be elected or appointed, to an office in the organisation; or
(b) a person has ceased to hold an office in the organisation.
(6) The granting to a person, on an application made under
section 216 or 217 in relation to a conviction of the person for a
prescribed offence, of leave to hold offices in organisations does not affect
the operation of this section or section 216 or 217 in relation to another
conviction of the person for a prescribed offence.
(1) A person who:
(a) wants to be a candidate for election, or to be appointed, to an office
in an organisation; and
(b) has been, within the immediately preceding period of 5 years,
convicted of a prescribed offence or released from prison after serving a term
of imprisonment in relation to a conviction for a prescribed offence;
may, subject to subsection (4), apply to the Federal Court for leave
to hold office in organisations.
(2) Where a person makes an application under subsection (1), the
Court may:
(a) grant the person leave to hold office in organisations; or
(b) refuse the person leave to hold office in organisations and specify,
for the purposes of subsection 215(1), a period of less than 5 years;
or
(c) refuse a person leave to hold office in organisations.
(3) A person who:
(a) holds an office in an organisation; and
(b) is convicted of a prescribed offence; and
(c) on an application made under subsection (1) in relation to the
conviction for the prescribed offence, is, under paragraph (2)(b) or (c),
refused leave to hold office in organisations;
ceases to hold the office in the organisation.
(4) A person is not entitled to make an application under this section in
relation to the person’s conviction for a prescribed offence if the person
has previously made an application under this section or under section 217
in relation to the conviction.
(1) Where a person who holds an office in an organisation is convicted of
a prescribed offence, the person may, subject to subsection (4), within 28
days after the conviction, apply to the Federal Court for leave to hold office
in organisations.
(2) Where a person makes an application under subsection (1) for
leave to hold office in organisations, the Court may:
(a) grant the person leave to hold office in organisations; or
(b) refuse the person leave to hold office in organisations and specify,
for the purposes of subsection 215(1), a period of less than 5 years;
or
(c) refuse the person leave to hold office in organisations.
(3) A person who, on an application made under subsection (1), is,
under paragraph (2)(b) or (c), refused leave to hold office in
organisations ceases to hold the office concerned.
(4) A person is not entitled to make an application under this section in
relation to the person’s conviction for a prescribed offence if the person
has previously made an application under this section or section 216 in
relation to the conviction.
For the purposes of exercising the power under section 216 or 217 to
grant or refuse leave, to a person who has been convicted of a prescribed
offence, to hold office in organisations, the Federal Court must have regard
to:
(a) the nature of the prescribed offence; and
(b) the circumstances of, and the nature of the person’s involvement
in, the commission of the prescribed offence; and
(c) the general character of the person; and
(d) the fitness of the person to be involved in the management of
organisations, having regard to the conviction for the prescribed offence;
and
(e) any other matter that, in the Court’s opinion, is
relevant.
(1) The Federal Court may, in spite of anything in the rules of any
organisation concerned, make such order to give effect to a declaration made
under subsection 215(5) as it considers appropriate.
(2) Where an application is made to the Court under subsection
215(5):
(a) the person whose eligibility, or whose holding of office, is in
question must be given an opportunity of being heard by the Court; and
(b) if the application is made otherwise than by the organisation
concerned—the organisation must be given an opportunity of being heard by
the Court.
(3) Where an application is made to the Court under section 216 or
217, the organisation concerned must be given an opportunity of being heard by
the Court.
Nothing in this Part affects the operation of Part VIIC of the
Crimes Act 1914 (which includes provisions relieving persons from
requirements to disclose spent convictions).
This Division imposes certain limitations and requirements on people who
hold, or wish to hold, office in an organisation and on whom the Federal Court
has imposed a pecuniary penalty by order under subsection 306(1) for
contravening a provision of Part 3 of Chapter 9.
Section 224 sets out the basic limitation for a person on whom a
pecuniary penalty has been imposed for contravening a provision of Part 3
of Chapter 9. The remaining sections in this Division deal with the ways
the rule in section 224 operates and may be modified.
In this Division, prescribed order, in relation to a
person, means an order made by the Federal Court under subsection 306(1)
imposing a pecuniary penalty on the person for contravening a provision of
Part 3 of Chapter 9.
(1) A certificate purporting to be signed by the registrar or other proper
officer of the Federal Court, stating that the Federal Court made an order under
subsection 306(1) on a specified day imposing a pecuniary penalty on a person
for contravening a provision of Part 3 of Chapter 9 is, for the
purpose of an application made under section 224, 225 or 226, evidence that
the order was made on that day.
(2) A certificate purporting to be signed by the registrar or other proper
officer of the Federal Court, stating that a person was found not to have
contravened a provision of Part 3 of Chapter 9 is, for the purpose of
an application made under section 224, 225 or 226, evidence of the facts
stated in the certificate.
(1) A person in relation to whom a prescribed order has been made is not
eligible to be a candidate for an election, or to be elected or appointed, to an
office in an organisation unless:
(a) on an application made under section 225 or 226 in relation to
the order:
(i) the person was granted leave to hold office in organisations;
or
(ii) the person was refused leave to hold office in organisations but,
under paragraph 225(2)(b) or 226(2)(b), the Federal Court specified a period for
the purposes of this subsection, and the period has elapsed since the day on
which the order was made; or
(b) in any other case—a period of 5 years has elapsed since the day
on which the order was made.
(2) If the Federal Court makes a prescribed order in relation to a person
who holds an office in an organisation, the person ceases to hold the office at
the end of the period of 28 days after the day on which the order is made
unless, within the period, the person makes an application to the Federal Court
under section 225 or 226.
(3) If a person who holds an office in an organisation makes an
application to the Federal Court under section 225 or 226 and the
application is not determined:
(a) except in a case to which paragraph (b) applies—within the
period of 3 months after the date of the application; or
(b) if the Court, on application by the person, has extended the
period—within that period as extended;
the person ceases to hold the office at the end of the period of 3 months
or the period as extended, as the case may be.
(4) The Court must not, under paragraph (3)(b), extend a period for
the purposes of subsection (3) unless:
(a) the application for the extension is made before the end of the period
of 3 months referred to in paragraph (3)(a); or
(b) if the Court has previously extended the period under
paragraph (3)(b)—the application for the further extension is made
before the end of the period as extended.
(5) An organisation, a member of an organisation or the Industrial
Registrar may apply to the Federal Court for a declaration whether, because of
the operation of this section or section 225 or 226:
(a) a person is not, or was not, eligible to be a candidate for election,
or to be elected or appointed, to an office in the organisation; or
(b) a person has ceased to hold an office in the organisation.
(6) The granting to a person, on an application made under
section 225 or 226 in relation to a prescribed order, of leave to hold
offices in organisations does not affect the operation of this section or
section 225 or 226 in relation to another order imposed on the
person.
(1) A person who:
(a) wants to be a candidate for election, or to be appointed, to an office
in an organisation; and
(b) within the immediately preceding period of 5 years, is a person in
relation to whom a prescribed order has been made;
may, subject to subsection (4), apply to the Federal Court for leave
to hold office in organisations.
(2) Where a person makes an application under subsection (1), the
Court may:
(a) grant the person leave to hold office in organisations; or
(b) refuse the person leave to hold office in organisations and specify,
for the purposes of subsection 224(1), a period of less than 5 years;
or
(c) refuse a person leave to hold office in organisations.
(3) A person who:
(a) holds an office in an organisation; and
(b) is a person in relation to whom a prescribed order has been made;
and
(c) on an application made under subsection (1) in relation to the
order, is, under paragraph (2)(b) or (c), refused leave to hold office in
organisations;
ceases to hold the office in the organisation.
(4) A person is not entitled to make an application under this section in
relation to a prescribed order if the person has previously made an application
under this section or under section 226 in relation to the order.
(1) If a prescribed order is made in relation to a person who holds an
office in an organisation, the person may, subject to subsection (4),
within 28 days after the order is made, apply to the Federal Court for leave to
hold office in organisations.
(2) If a person makes an application under subsection (1) for leave
to hold office in organisations, the Court may:
(a) grant the person leave to hold office in organisations; or
(b) refuse the person leave to hold office in organisations and specify,
for the purposes of subsection 224(1), a period of less than 5 years;
or
(c) refuse the person leave to hold office in organisations.
(3) A person who, on an application made under subsection (1), is,
under paragraph (2)(b) or (c), refused leave to hold office in
organisations ceases to hold the office concerned.
(4) A person is not entitled to make an application under this section in
relation to a prescribed order if the person has previously made an application
under this section or section 225 in relation to it.
For the purposes of exercising the power under section 225 or 226 to
grant or refuse leave to hold office in organisations to a person in relation to
whom a prescribed order has been made, the Federal Court must have regard
to:
(a) the nature of the contravention; and
(b) the circumstances of, and the nature of the person’s involvement
in, the contravention; and
(c) the general character of the person; and
(d) the fitness of the person to be involved in the management of
organisations, having regard to the contravention; and
(e) any other matter that, in the Court’s opinion, is
relevant.
(1) The Federal Court may, in spite of anything in the rules of any
organisation concerned, make such order to give effect to a declaration made
under subsection 224(5) as it considers appropriate.
(2) If an application is made to the Court under subsection
224(5):
(a) the person whose eligibility, or whose holding of office, is in
question must be given an opportunity of being heard by the Court; and
(b) if the application is made otherwise than by the organisation
concerned—the organisation must be given an opportunity of being heard by
the Court.
(3) Where an application is made to the Court under section 225 or
226, the organisation concerned must be given an opportunity of being heard by
the Court.
This Chapter deals with records that must be kept by organisations, and
imposes obligations in relation to organisations’ financial
affairs.
Part 2 requires an organisation to keep membership records and lists
of office-holders. Copies of these must be lodged with the Industrial Registrar.
Details of some types of loans, grants and donations made by the organisation
must also be lodged with the Industrial Registrar.
Part 3 sets out the requirements that are placed on organisations in
relation to financial records, accounting and auditing.
Part 4 deals with access to organisations’ books.
(1) An organisation must keep the following records:
(a) a register of its members, showing the name and postal address of each
member and showing whether the member became a member under an agreement entered
into under rules made under subsection 151(1);
(b) a list of the offices in the organisation and each branch of the
organisation;
(c) a list of the names, postal addresses and occupations of the persons
holding the offices;
(d) such other records as are prescribed.
Note: This subsection is a civil penalty provision (see
section 305).
(2) An organisation must:
(a) enter in the register of its members the name and postal address of
each person who becomes a member, within 28 days after the person becomes a
member;
(b) remove from that register the name and postal address of each person
who ceases to be a member under the rules of the organisation, within 28 days
after the person ceases to be a member; and
(c) enter in that register any change in the particulars shown on the
register, within 28 days after the matters necessitating the change become known
to the organisation.
Note 1: This subsection is a civil penalty provision (see
section 305).
Note 2: An organisation may also be required to make
alterations to the register of its members under other provisions of the Act
(see, for example, sections 170 and 172).
(1) An organisation must keep a copy of its register of members as it
stood on 31 December in each year. The organisation must keep the copy for
the period of 7 years after the 31 December concerned.
(2) The regulations may provide that an organisation must also keep a copy
of the register, or a part of the register, as it stood on a prescribed day. The
organisation must keep the copy for the period of 7 years after the prescribed
day.
Note: This section is a civil penalty provision (see
section 305).
(1) A person commits an offence if:
(a) the person does an act; and
(b) the act results in the destruction or defacement of, or other
interference with, a register of members or a copy of such a register;
and
(c) either:
(i) the register of members is required to be kept by an organisation
under paragraph 230(1)(a); or
(ii) the copy is required to be kept by an organisation under
section 231.
Maximum penalty: 20 penalty units.
(2) Strict liability applies to paragraph (1)(c).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(1) An organisation must lodge in the Industrial Registry once in each
year, at such time as is prescribed:
(a) a declaration signed by the secretary or other prescribed officer of
the organisation certifying that the register of its members has, during the
immediately preceding calendar year, been kept and maintained as required by
paragraph 230(1)(a) and subsection 230(2); and
(b) a copy of the records required to be kept under paragraphs 230(1)(b),
(c) and (d), certified by declaration by the secretary or other prescribed
officer of the organisation to be a correct statement of the information
contained in those records.
(2) An organisation must, within the prescribed period, lodge in the
Industrial Registry notification of any change made to the records required to
be kept under paragraphs 230(1)(b), (c) and (d), certified by declaration signed
by the secretary or other prescribed officer of the organisation to be a correct
statement of the changes made.
(3) A person must not, in a declaration for the purposes of this section,
make a statement if the person knows, or is reckless as to whether, the
statement is false or misleading.
Note: This section is a civil penalty provision (see
section 305).
(1) Subject to subsections (2) and (5), the records kept by an
organisation under sections 230 and 231 must be kept at the office of the
organisation.
(2) A record referred to in subsection (1) may, so far as it relates
to a branch of the organisation, be kept in a separate part or section at the
office of the branch.
(3) An organisation may apply to a Registrar for permission to keep the
whole or a specified part of a record referred to in subsection (1) at
specified premises instead of at the office of the organisation or
branch.
(4) A Registrar may, by signed instrument, grant the permission if the
Registrar is satisfied that the record or the specified part of the
record:
(a) will be under the effective control of the organisation or branch;
and
(b) will, in the case of a register of members, be available for
inspection in accordance with section 235.
(5) While a permission under subsection (4) is in force, a record
referred to in the permission may, to the extent specified in the permission, be
kept at the premises specified in the permission.
(1) A person (the authorised person) authorised by a
Registrar may inspect, and make copies of, or take extracts from, the records
kept by an organisation under sections 230 and 231 (the
records) at such times as the Registrar specifies.
(2) An organisation must cause its records to be available, at all
relevant times, for the purposes of subsection (1) to the authorised
person.
Note: This subsection is a civil penalty provision (see
section 305).
(3) Without limiting the ways in which an organisation can comply with
subsection (2), it complies if it makes the records available to the
authorised person in a form agreed to by the authorised person.
Note: For example, the authorised person could agree to the
organisation providing him or her with a hard copy or with a floppy disk, or to
transmitting a copy of the register (or the relevant part) to a specified e-mail
address.
Register kept under section 230
(1) Where:
(a) a member of an organisation requests a Registrar to give a direction
under this subsection; and
(b) the Registrar is satisfied:
(i) that the member has been refused access to the register required to be
kept under section 230, or part of it, at the office or premises where the
register or part is kept; or
(ii) that there are other grounds for giving a direction under this
subsection;
the Registrar may direct the organisation to deliver to the Registrar a
copy of the relevant records certified by declaration by the secretary or other
prescribed officer of the organisation to be, as at a day specified in the
certificate that is not more than 28 days before the first-mentioned day, a
correct statement of the information contained in the register, for the member
to inspect at a specified registry, and the organisation must comply with the
direction.
Note: This subsection is a civil penalty provision (see
section 305).
Copy kept under section 231
(2) Where:
(a) a member of an organisation requests a Registrar to give a direction
under this subsection; and
(b) the Registrar is satisfied that:
(i) the member has been refused access to the copy of the register
required to be kept under section 231; and
(ii) the member has reasonable grounds for seeking access to the
copy;
the Registrar may direct the organisation to deliver to the Registrar a
copy of the copy, and the organisation must comply with the direction.
Note: This subsection is a civil penalty provision (see
section 305).
(3) A direction of the Registrar given under this section must be in
writing and must specify the period within which the relevant copy must be
delivered to the Registrar. The period must not be less than 14 days after the
direction is given.
(4) A copy of a record delivered under subsection (1) or (2) may be
in the form of a hard copy or, if the Registrar agrees, in electronic
form.
(5) Where a Registrar receives a copy of a document from an organisation
under this section, the Registrar may, if the Registrar considers it appropriate
in the circumstances, provide a copy of that document to a member of the
organisation.
(1) An organisation must, within 90 days after the end of each financial
year (or such longer period as the Registrar allows), lodge in the Industrial
Registry a statement showing the relevant particulars in relation to each loan,
grant or donation of an amount exceeding $1,000 made by the organisation during
the financial year.
Note: This subsection is a civil penalty provision (see
section 305).
(2) A statement lodged in the Industrial Registry under
subsection (1) must be signed by an officer of the organisation.
(3) An organisation must not, in a statement under subsection (1),
make a statement if the person knows, or is reckless as to whether, the
statement is false or misleading.
Note: This subsection is a civil penalty provision (see
section 305).
(4) A statement lodged in the Industrial Registry under
subsection (1) may be inspected at any registry, during office hours, by a
member of the organisation concerned.
(5) The relevant particulars, in relation to a loan made by an
organisation, are:
(a) the amount of the loan; and
(b) the purpose for which the loan was required; and
(c) the security given in relation to the loan; and
(d) except where the loan was made to relieve a member of the
organisation, or a dependant of a member of the organisation, from severe
financial hardship—the name and address of the person to whom the loan was
made and the arrangements made for the repayment of the loan.
(6) The relevant particulars, in relation to a grant or donation made by
an organisation, are:
(a) the amount of the grant or donation; and
(b) the purpose for which the grant or donation was made; and
(c) except where the grant or donation was made to relieve a member of the
organisation, or a dependant of a member of the organisation, from severe
financial hardship—the name and address of the person to whom the grant or
donation was made.
(7) Where an organisation is divided into branches:
(a) this section applies in relation to the organisation as if loans,
grants or donations made by a branch of the organisation were not made by the
organisation; and
(b) this section applies in relation to each of the branches as if the
branch were itself an organisation.
(8) For the purposes of the application of this section in accordance with
subsection (7) in relation to a branch of an organisation, the members of
the organisation constituting the branch are taken to be members of the
branch.
This Part sets out the requirements that are placed on organisations in
relation to financial records, accounting and auditing.
It provides for reports to be provided on the basis of reporting units. A
reporting unit may be the whole of an organisation or one or more branches of an
organisation.
Division 2 provides for the reporting units.
Division 3 sets out the accounting obligations for reporting
units.
Division 4 provides for auditors to be appointed and sets out the
powers and duties of the auditors and the duties that others have in relation to
auditors.
Division 5 sets out the reporting requirements that reporting units
must comply with.
Division 6 provides for reduced reporting requirements to apply in
particular cases.
Division 7 provides for members’ access to the financial records
of reporting units.
This Part does not apply, in relation to an association that becomes
registered as an organisation under this Act, in relation to any financial year
before the first financial year of the organisation that begins after the date
of registration.
Where the rules of an organisation change the period constituting the
financial year of the organisation, the period between:
(a) the commencement of the first financial year after the change;
and
(b) the end of the preceding financial year;
is to be taken, for the purposes of this Part, to be a financial
year.
(1) The Industrial Registrar may, by written notice, determine that
particular Australian Accounting Standards do not apply in relation to an
organisation or to a class of organisations.
(2) In deciding whether to determine that a particular Australian
Accounting Standard does not apply in relation to an organisation or
organisations, the Registrar is to have regard to the cost to the organisation
or organisations of complying with the standard and the information needs of the
members of the organisation or organisations.
(1) The requirements of this Part apply in relation to reporting units. A
reporting unit may be the whole of an organisation or a part of an
organisation.
Organisations not divided into branches
(2) Where an organisation is not divided into branches, the
reporting unit is the whole of the organisation.
Organisations divided into branches
(3) Where an organisation is divided into branches, each branch will be a
reporting unit unless a certificate issued by the Industrial
Registrar stating that the organisation is, for the purpose of compliance with
this Part, divided into reporting units on an alternative basis (see
section 245) is in force.
(4) The alternative reporting units are:
(a) the whole of the organisation; or
(b) a combination of 2 or more branches of the organisation.
Each branch of an organisation must be in one, and only one, reporting
unit.
(5) For the purposes of this Part, so much of an organisation that is
divided into branches as would not, apart from this subsection, be included in
any branch, is taken to be a branch of the organisation.
A designated officer is an officer of:
(a) in the case of a reporting unit that is the whole of an
organisation—the organisation; or
(b) in any other case—a branch, or one of the branches, that
constitutes the reporting unit;
who, under the rules of the reporting unit, is responsible (whether alone
or with others) for undertaking the functions necessary to enable the reporting
unit to comply with this Part.
(1) For the purposes of the application of this Part in relation to a
reporting unit that is the whole of an organisation:
(a) the members of the organisation are taken to be members of the
reporting unit; and
(b) employees of the organisation are taken to be employees of the
reporting unit; and
(c) the rules of the organisation are taken to be the rules of the
reporting unit; and
(d) the financial affairs and records of the organisation are taken to be
the financial affairs and records of the reporting unit; and
(e) conduct and activities of the organisation are taken to be conduct and
activities of the reporting unit; and
(f) a journal published by the organisation is taken to be a journal
published by the reporting unit.
(2) For the purposes of the application of this Part in relation to a
reporting unit that is not the whole of an organisation:
(a) the members of the organisation constituting the branch or branches
that make up the reporting unit are taken to be members of the reporting unit;
and
(b) employees of the organisation employed in relation to the branch or
branches that make up the reporting unit (whether or not they are also employed
in relation to any other branch) are taken to be employees of the reporting
unit; and
(c) if the reporting unit consists of one branch—the rules of the
branch are taken to be the rules of the reporting unit; and
(d) if the reporting unit consists of more than one branch—the rules
of the branches (including any rules certified under section 246, or
determined under section 247, for the purpose of giving effect to the
establishment of the reporting unit) are taken to be the rules of the reporting
unit; and
(e) the financial affairs and records of the branch or branches that make
up the reporting unit are taken to be the financial affairs and records of the
reporting unit; and
(f) conduct and activities of the branch or branches that make up the
reporting unit are taken to be conduct and activities of the reporting unit;
and
(g) if the reporting unit consists of one branch—a journal published
by the branch is taken to be a journal published by the reporting unit;
and
(h) a journal published by the organisation is taken to be a journal
published by the reporting unit.
(1) The Industrial Registrar may issue to an organisation that is divided
into branches a certificate stating that the organisation is, for the purpose of
compliance with this Part, to be divided into reporting units on an alternative
basis (as mentioned in subsection 242(3)).
(2) A certificate may be issued on application by an organisation or at
the initiative of the Registrar.
(1) An application by an organisation for a certificate under
section 245 must:
(a) be in accordance with the regulations; and
(b) include an application for the Industrial Registrar to certify such
alterations to the rules of the organisation as are required to give effect to
the establishment of the proposed reporting units.
Note: Examples of the alterations that may be required
are:
(a) alterations to designate officers from the branches to
be the committee of management for the reporting unit for the purpose of
complying with this Part; and
(b) alterations to designate officers from the branches to
undertake such duties as are necessary for the purpose of enabling the reporting
unit to comply with this Part.
(2) Where an organisation applies for a certificate, the Industrial
Registrar must issue the certificate and certify the rule alterations if the
Registrar is satisfied that:
(a) the level of financial information that would be available to members
under the proposed division into reporting units would be adequate and would be
relevant to them; and
(b) the alterations to the rules:
(i) comply with, and are not contrary to, this Act, the Workplace
Relations Act, awards, certified agreements or old IR agreements; and
(ii) are not otherwise contrary to law; and
(iii) have been made under the rules of the organisation.
(1) The Industrial Registrar may only issue a certificate under
section 245 on his or her initiative if the Registrar:
(a) is satisfied that, to improve compliance with the accounting, auditing
and reporting requirements of this Part, it is most appropriate for the
organisation to be divided into reporting units on the basis set out in the
certificate; and
(b) is satisfied that the level of financial information that would be
available to members under the proposed division into reporting units would be
adequate and would be relevant to them; and
(c) has complied with the prescribed procedure.
(2) Where, in the Industrial Registrar’s opinion, the rules of an
organisation need to be altered to give effect to the establishment of the
proposed reporting units under subsection (1), the Industrial Registrar
may, by instrument, after giving the organisation an opportunity, as prescribed,
to be heard on the matter, determine such alterations of the rules as are, in
the Industrial Registrar’s opinion, necessary to give effect to the
establishment of the proposed reporting units.
A certificate issued under section 245 is in force, and has effect
according to its terms, in relation to:
(a) the first financial year starting after the certificate is issued;
and
(b) each subsequent financial year unless, before the start of the
financial year, the certificate is revoked under section 249.
(1) The Industrial Registrar may at any time, by written notice, revoke a
certificate issued to an organisation under section 245.
(2) If a certificate is revoked, each branch will be a reporting
unit.
(3) A certificate may be revoked on application by an organisation or at
the initiative of the Registrar.
(4) An application by an organisation for the revocation of a certificate
must:
(a) be in accordance with the regulations; and
(b) include an application for the Industrial Registrar to certify such
alterations to the rules of the organisation as are required to give effect to
each branch being a reporting unit.
(5) Where an organisation applies for a revocation, the Industrial
Registrar must revoke the certificate and certify the rule alterations if the
Registrar is satisfied that:
(a) the level of financial information that would be available to members
with each branch being a reporting unit would be adequate and would be relevant
to them; and
(b) the alterations to the rules:
(i) comply with, and are not contrary to, this Act, the Workplace
Relations Act, awards, certified agreements or old IR agreements; and
(ii) are not otherwise contrary to law; and
(iii) have been made under the rules of the organisation.
(6) The Industrial Registrar may only revoke a certificate on his or her
initiative if the Registrar:
(a) is satisfied that, to improve compliance with the accounting, auditing
and reporting requirements of this Part, it is most appropriate for each branch
to be a reporting unit; and
(b) has complied with the prescribed procedure.
(7) Where:
(a) the Industrial Registrar intends to revoke a certificate on his or her
own initiative; and
(b) in the Registrar’s opinion, the rules of an organisation need to
be altered to give effect to each branch being a reporting unit;
the Registrar may, by instrument, after giving the organisation an
opportunity, as prescribed, to be heard on the matter, determine such
alterations of the rules as are, in the Registrar’s opinion, necessary to
give effect to each branch being a reporting unit.
(1) An alteration to rules under section 246, 247 or 249 takes effect
on the day that it is certified or determined.
(2) To avoid doubt, changes in rules under those sections may include
changes to the duties of an office (even if during a particular term of
office).
A certificate issued to an organisation under section 245 is taken
to be revoked if a later certificate is issued to the organisation under
section 245.
(1) A reporting unit must:
(a) keep such financial records as correctly record and explain the
transactions and financial position of the reporting unit, including such
records as are prescribed; and
(b) keep its financial records in such a manner as will enable a general
purpose financial report to be prepared from them under section 253;
and
(c) keep its financial records in such a manner as will enable the
accounts of the reporting unit to be conveniently and properly audited under
this Part.
(2) Where an organisation consists of 2 or more reporting units, the
financial records for each of the reporting units must, as far as practicable,
be kept in a consistent manner.
Note 1: This would involve, for example, the adoption of
consistent accounting policies and a common chart of accounts for all reporting
units in the organisation.
Note 2: This requirement is subject to subsection (4)
which allows reporting units to keep some records on a cash
basis.
(3) Financial records of an organisation may, so far as they relate to the
income and expenditure of the organisation, be kept on a cash basis or accrual
basis, at the option of the organisation.
(4) If an organisation keeps the financial records referred to in
subsection (1) on an accrual basis, it may keep the financial records for
its membership subscriptions separately on a cash basis.
(5) An organisation must retain the financial records kept under
subsection (1) for a period of 7 years after the completion of the
transactions to which they relate.
(1) As soon as practicable after the end of each financial year, a
reporting unit must cause a general purpose financial report to be prepared, in
accordance with the Australian Accounting Standards, from the financial records
kept under subsection 252(1) in relation to the financial year.
(2) The general purpose financial report must consist of:
(a) financial statements containing:
(i) a profit and loss statement, or other operating statement;
and
(ii) a balance sheet; and
(iii) a statement of cash flows; and
(iv) any other statements required by the Australian Accounting Standards;
and
(b) notes to the financial statements containing:
(i) notes required by the Australian Accounting Standards; and
(ii) information required by the reporting guidelines (see
section 255); and
(c) any other reports or statements required by the reporting guidelines
(see section 255).
(3) The financial statements and notes for a financial year must give a
true and fair view of the financial position and performance of the reporting
unit. This subsection does not affect the obligation for a financial report to
comply with the Australian Accounting Standards.
Note 1: This section is a civil penalty provision (see
section 305).
Note 2: The Australian Accounting Standards may be modified
for the purposes of this Act by the regulations.
Note 3: If the financial statements and notes prepared in
compliance with the Australian Accounting Standards would not give a true and
fair view, additional information must be included in the notes to the financial
statements under paragraph (2)(b).
(1) As soon as practicable after the end of each financial year, the
committee of management of a reporting unit must cause an operating report to be
prepared in relation to the financial year.
(2) The operating report must:
(a) contain a review of the reporting unit’s principal activities
during the year, the results of those activities and any significant changes in
the nature of those activities during the year; and
(b) give details of any significant changes in the reporting unit’s
financial affairs during the year; and
(c) give details of the right of members to resign from the reporting unit
under section 174; and
(d) give details (including details of the position held) of any officer
or member of the reporting unit who is:
(i) a trustee of a superannuation entity or an exempt public sector
superannuation scheme; or
(ii) a director of a company that is a trustee of a superannuation entity
or an exempt public sector superannuation scheme; and
where a criterion for the officer or member being the trustee or director
is that the officer or member is an officer or member of a registered
organisation; and
(e) contain any other information that the reporting unit considers is
relevant; and
(f) contain any prescribed information.
(3) To avoid doubt, the operating report may be prepared by the committee
of management or a designated officer.
Note: This section is a civil penalty provision (see
section 305).
(1) The Industrial Registrar must, by written determination published in
the Gazette, issue reporting guidelines for the purposes of
sections 253 and 270.
(2) The reporting guidelines for the purposes of section 253 must
provide:
(a) the manner in which reporting units must disclose the total amount
paid by the reporting unit during a financial year to employers as consideration
for the employers making payroll deductions of membership subscriptions;
and
(b) the manner in which reporting units must disclose the total amount of
legal costs and other expenses related to litigation or other legal matters paid
by the reporting unit during a financial year; and
(c) details of any information required for the purposes of subparagraph
253(2)(b)(ii) (information in notes to general purpose financial reports);
and
(d) the form and content of any reports or statements that are required
for the purposes of paragraph 253(2)(c) (other reports or statements forming
part of the general purpose financial reports).
(3) The reporting guidelines for the purposes of section 270 must
provide:
(a) the manner in which reporting units must disclose the total amount
paid by the reporting unit during a financial year to employers as consideration
for the employers making payroll deductions of membership subscriptions;
and
(b) details of the form and content of the general purpose financial
report to be prepared under subsection 270(4).
(4) Reporting guidelines may also contain such other requirements in
relation to the disclosure of information by reporting units as the Industrial
Registrar considers appropriate.
(5) Section 81 of the Workplace Relations Act does not apply in
relation to reporting guidelines or the issuing of reporting
guidelines.
(1) A reporting unit must ensure that there is an auditor of the reporting
unit at any time when an auditor is required for the purposes of the operation
of this Part in relation to the reporting unit.
Note: This subsection is a civil penalty provision (see
section 305).
(2) The position of auditor of a reporting unit is to be held
by:
(a) a person who is an approved auditor; or
(b) a firm, at least one of whose members is an approved
auditor.
(3) A person must not accept appointment as auditor of a reporting unit
unless:
(a) the person is an approved auditor; and
(b) the person is not an excluded auditor in relation to the reporting
unit.
Note: This subsection is a civil penalty provision (see
section 305).
(4) A member of a firm must not accept appointment of the firm as auditor
of a reporting unit unless:
(a) at least one member of the firm is an approved auditor; and
(b) no member of the firm is an excluded auditor in relation to the
reporting unit.
Note: This subsection is a civil penalty provision (see
section 305).
(5) A person who holds the position of auditor of a reporting unit must
resign the appointment if the person:
(a) ceases to be an approved auditor; or
(b) becomes an excluded auditor in relation to the reporting
unit.
Note: This subsection is a civil penalty provision (see
section 305).
(6) A member of a firm that holds the position of auditor of a reporting
unit must take whatever steps are open to the member to ensure that the firm
resigns the appointment if the member:
(a) ceases to be an approved auditor and is or becomes aware that no other
member of the firm is an approved auditor; or
(b) becomes an excluded auditor in relation to the reporting unit;
or
(c) becomes aware that another member of the firm is an excluded auditor
in relation to the reporting unit.
Note: This subsection is a civil penalty provision (see
section 305).
(7) The auditor of a reporting unit must use his or her best endeavours to
comply with each requirement of this Act that is applicable to the auditor in
that capacity.
(1) An auditor of a reporting unit must audit the financial report of the
reporting unit for each financial year and must make a report in relation to the
year to the reporting unit.
(2) An auditor, or a person authorised by an auditor for the purposes of
this subsection, is:
(a) entitled at all reasonable times to full and free access to all
records and other documents of the reporting unit relating directly or
indirectly to the receipt or payment of money, or to the acquisition, receipt,
custody or disposal of assets, by the reporting unit; and
(b) entitled to seek from any designated officer, or employee of the
reporting unit, such information and explanations as the auditor or authorised
person wants for the purposes of the audit.
(3) If an auditor requests an officer, employee or member of an
organisation to produce records or other documents under paragraph (2)(a),
the request must:
(a) be in writing; and
(b) specify the nature of the records or other documents to be produced;
and
(c) specify how and where the records or other documents are to be
produced; and
(d) specify a period (of not less than 14 days after the notice is given)
within which the records or other documents are to be produced.
(4) If an auditor authorises a person for the purposes of
subsection (2), the auditor must serve on the reporting unit a notification
that sets out the name and address of the person.
(5) An auditor must, in his or her report, state whether in the
auditor’s opinion the general purpose financial report is presented fairly
in accordance with any of the following that apply in relation to the reporting
unit:
(a) the Australian Accounting Standards;
(b) any other requirements imposed by this Part.
If not of that opinion, the auditor’s report must say why.
(6) If the auditor is of the opinion that the general purpose financial
report does not so comply, the auditor’s report must, to the extent it is
practicable to do so, quantify the effect that non-compliance has on the general
purpose financial report. If it is not practicable to quantify the effect fully,
the report must say why.
(7) The auditor’s report must describe:
(a) any defect or irregularity in the general purpose financial report;
and
(b) any deficiency, failure or shortcoming in respect of the matters
referred to in subsection (2) or section 252.
(8) The form and content of the auditor’s report must be in
accordance with the Australian Auditing Standards.
(9) The auditor’s report must be dated as at the date that the
auditor signs the report and must be given to the reporting unit within a
reasonable time of the auditor having received the general purpose financial
report.
(10) An auditor must not, in a report under this section, make a statement
if the auditor knows, or is reckless as to whether, the statement is false or
misleading.
Note: This subsection is a civil penalty provision (see
section 305).
(11) If:
(a) the auditor suspects on reasonable grounds that there has been a
breach of this Act or reporting guidelines; and
(b) the auditor is of the opinion that the matter cannot be adequately
dealt with by comment in a report or by reporting the matter to the committee of
management of the reporting unit;
the auditor must immediately report the matter, in writing, to the
Industrial Registrar.
Note: This subsection is a civil penalty provision (see
section 305).
(1) An officer, employee or member of an organisation or branch commits an
offence if he or she:
(a) hinders or obstructs the auditor of a reporting unit from taking
action under paragraph 257(2)(a); or
(b) does not comply with a request under paragraph 257(2)(a) by an auditor
of a reporting unit to produce a record or other document in the custody or
under the control of the officer, employee or member.
Maximum penalty: 30 penalty units.
(2) Strict liability applies to paragraph (1)(b).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) It is a defence to an offence against paragraph (1)(b) if the
officer, employee or member had a reasonable excuse for not complying.
Note: A defendant bears an evidential burden in relation to
the matters mentioned in subsection (3).
(4) However, a person is not excused from producing a record or other
document under this section on the ground that the production might tend to
incriminate the person or expose the person to a penalty.
(5) However:
(a) producing the record or other document; or
(b) any information, document or thing obtained as a direct or indirect
consequence of giving the information or producing the record or other
document;
is not admissible in evidence against the person in criminal proceedings or
proceedings that may expose the person to a penalty.
(6) It is a defence to an offence against subsection (1) if the
officer, employee or member did not know, and could not reasonably have known,
that the auditor, or the person authorised by the auditor, to whom the charge
relates was a person in relation to whom that subsection applied.
Note: A defendant bears an evidential burden in relation to
the matters mentioned in subsection (6).
(7) In a prosecution for an offence against subsection (1), it is not
necessary to prove that the defendant knew that the auditor was an
auditor.
(8) In this section:
auditor includes a person authorised by the auditor for the
purposes of subsection 257(2).
A reporting unit must forward to the auditor of the reporting unit any
notice of, and any other communication relating to, a meeting of the reporting
unit, or the committee of management of the reporting unit, at which the report
of the auditor, or any general purpose financial report to which the report
relates, are to be presented, being a notice or other communication that a
member of the reporting unit, or the committee of management of the reporting
unit, as the case may be, would be entitled to receive.
Note: This section is a civil penalty provision (see
section 305).
(1) An auditor, or a person authorised by an auditor for the purposes of
this section, is entitled to attend, and be heard at, any part of a meeting of a
reporting unit, or the committee of management of a reporting unit, at
which:
(a) the report of the auditor, or any general purpose financial report to
which the report relates, is to be presented or considered; or
(b) there is to be conducted any business of the meeting that relates
to:
(i) the auditor in that capacity; or
(ii) a person authorised by the auditor, in the capacity of a person so
authorised.
(2) Where an auditor authorises a person for the purposes of this section,
the auditor must serve on the reporting unit a notification, which sets out the
name and address of the person.
(3) An officer, employee or member of an organisation or branch commits an
offence if he or she hinders or obstructs the auditor of a reporting unit from
attending a part of the meeting that the auditor is entitled to
attend.
Maximum penalty: 30 penalty units.
(4) A person commits an offence if:
(a) an auditor of a reporting unit attends a part of a meeting that the
auditor is entitled to attend; and
(b) the person chairs the meeting; and
(c) in the course of the part of the meeting, the auditor indicates to the
person chairing the meeting that the auditor wishes to be heard; and
(d) the person fails, as soon as practicable after having received the
indication, to afford to the auditor an opportunity to be heard.
Maximum penalty: 20 penalty units.
(5) It is a defence to an offence against a subsection of this section if
the person did not know, and could not reasonably have known, that the auditor,
or the person authorised by the auditor, to whom the charge relates was a person
in relation to whom the subsection applied.
Note: A defendant bears an evidential burden in relation to
the matters mentioned in subsection (5).
(6) In a prosecution for an offence against this section, it is not
necessary to prove that the defendant knew that the auditor was an
auditor.
(7) In subsections (3) and (4):
auditor includes a person authorised by the auditor for the
purposes of this section.
(1) An auditor of a reporting unit is not, in the absence of malice,
liable to an action for defamation at the suit of a person in relation to a
statement that the auditor makes in the course of duties as auditor, whether the
statement is made orally or in writing.
(2) A person is not, in the absence of malice, liable to an action for
defamation at the suit of a person in relation to the publishing of a document
prepared by an auditor of a reporting unit in the course of duties as auditor
and required by or under this Act to be lodged with the Industrial
Registry.
(3) This section does not limit or affect any right, privilege or immunity
that a defendant has in an action for defamation.
A reporting unit must pay the reasonable fees and expenses of an auditor
of the reporting unit.
(1) An auditor of a reporting unit may only be removed during the term of
appointment of the auditor:
(a) where the auditor was appointed by the committee of management of the
reporting unit—by resolution passed at a meeting of the committee by an
absolute majority of the members of the committee; or
(b) where the auditor was appointed by a general meeting of the members of
the reporting unit—by resolution passed at a general meeting by a majority
of the members of the reporting unit voting at the meeting.
(2) Written notice of the intention to remove the auditor must be given to
each member of the reporting unit. The notice must be provided in accordance
with any time limits provided by the rules of the reporting unit, or within a
reasonable time before the resolution is moved if no such time limits are
provided.
Note: This subsection is a civil penalty provision (see
section 305).
(3) The auditor must be given reasonable notice of the resolution to
remove the auditor and must be given the opportunity to:
(a) in the case of removal under paragraph (1)(a)—make oral
representations to the committee of management; and
(b) in any case—make written representations.
Note: This subsection is a civil penalty provision (see
section 305).
(4) If it is proposed to remove the auditor under paragraph (1)(b)
and the auditor makes written representations, the auditor may require the
reporting unit to provide a copy of the written representations to each member
of the reporting unit.
(5) The reporting unit must comply with a requirement under
subsection (4) unless the written representations exceed any limits as to
length that are prescribed.
Note: This subsection is a civil penalty provision (see
section 305).
(1) An auditor of a reporting unit may resign by giving written notice to
the reporting unit.
(2) The resignation takes effect on the day specified in the notice or, if
no day is specified, the day that the notice is given to the reporting
unit.
(3) If the auditor requests the reporting unit to allow the auditor to
explain his or her reasons for resigning, the reporting unit must
either:
(a) distribute to the members of the reporting unit written reasons for
resignation prepared by the auditor; or
(b) give the auditor the opportunity to explain his or her reasons to a
general meeting of the reporting unit.
The committee of management of the reporting unit may choose which method
is used.
Note: This subsection is a civil penalty provision (see
section 305).
(1) A reporting unit must provide free of charge to its members
either:
(a) a full report consisting of:
(i) a copy of the report of the auditor in relation to the inspection and
audit of the financial records of the reporting unit in relation to a financial
year; and
(ii) a copy of the general purpose financial report to which the report
relates; and
(iii) a copy of the operating report to which the report relates;
or
(b) a concise report for the financial year that complies with
subsection (3).
Note: This subsection is a civil penalty provision (see
section 305).
(2) A concise report may only be provided if, under the rules of the
reporting unit, the committee of management of the reporting unit resolves that
a concise report is to be provided.
(3) A concise report for a financial year consists of:
(a) a concise financial report for the year drawn up in accordance with
the regulations; and
(b) the operating report for the year; and
(c) a statement by the auditor:
(i) that the concise financial report has been audited; and
(ii) whether, in the auditor’s opinion, the concise financial report
complies with the relevant Australian Accounting Standards; and
(d) a copy of anything included under subsection 257(5), (6) or (7) in the
auditor’s report on the full report; and
(e) a statement that the report is a concise report and that a copy of the
full report and auditor’s report will be sent to the member free of charge
if the member asks for them.
(4) If a member requests a copy of the full report and auditor’s
report, as mentioned in paragraph (3)(e), the reporting unit must send
those reports to the person within 28 days of the request being made.
Note: This subsection is a civil penalty provision (see
section 305).
(5) The copies referred to in subsection (1) must be provided
within:
(a) if a general meeting of members of the reporting unit to consider the
reports is held within 6 months after the end of the financial year—the
period starting at the end of the financial year and ending 21 days before that
meeting; or
(b) in any other case—the period of 5 months starting at the end of
the financial year.
A Registrar may, upon application by the reporting unit, extend the period
during which the meeting referred to in paragraph (a) may be held, or the
period set out in paragraph (b), by no more than one month.
Note: This subsection is a civil penalty provision (see
section 305).
(6) Where a reporting unit publishes a journal of the reporting unit that
is available to the members of the reporting unit free of charge, the reporting
unit may comply with subsection (1):
(a) by publishing in the journal the full report; or
(b) by preparing a concise report as described in subsection (3) and
publishing the concise report in the journal.
(7) Where a reporting unit consists of 2 or more branches of an
organisation and one of those branches publishes a journal of the branch that is
available to the members of the branch free of charge, the reporting unit may
comply with subsection (1) in relation to those members:
(a) by publishing in the journal the full report; or
(b) by preparing a concise report as described in subsection (3) and
publishing the concise report in the journal.
(1) Subject to subsection (2), the reporting unit must cause the full
report to be presented to a general meeting of the members of the reporting unit
within the period of 6 months starting at the end of the financial year (or such
longer period as is allowed by a Registrar under subsection 265(5)).
Note: This subsection is a civil penalty provision (see
section 305).
(2) If the rules of the reporting unit permit a general meeting to be a
series of meetings at different locations, the presenting of the full report to
such a series of meetings is taken to be the presenting of the report to a
general meeting. The general meeting is taken to have occurred at the time of
the last of the meetings in the series.
(3) If the rules of the reporting unit provide for a specified percentage
(not exceeding 5%) of members to be able to call a general meeting of the
reporting unit for the purpose of considering the auditor’s report, the
general purpose financial report and the operating report, the full report may
instead be presented to a meeting of the committee of management of the
reporting unit that is held within the period mentioned in
subsection (1).
Where a member of the committee of management of a reporting
unit:
(a) provides to members of the reporting unit; or
(b) publishes in a journal; or
(c) presents to a general meeting of the members of the reporting unit or
a meeting of the committee of management of the reporting unit;
comments on a matter dealt with in a report, accounts or statements of the
kind referred to in subsection 265(1), or in a concise report as described in
subsection 265(3), the member must not, in the comments, make a statement if the
person knows, or is reckless as to whether, the statement is false or
misleading.
Note: This section is a civil penalty provision (see
section 305).
A reporting unit must, within 14 days (or such longer period as a
Registrar allows) after the general meeting referred to in section 266,
lodge in the Industrial Registry:
(a) a copy of the full report; and
(b) if a concise report was provided to members—a copy of the
concise report; and
(c) a certificate by a prescribed designated officer that the documents
lodged are copies of the documents provided to members and presented to a
meeting in accordance with section 266.
Note: This section is a civil penalty provision (see
section 305).
(1) This section applies to a reporting unit if there is an industrial
association (the associated State body) that:
(a) is registered or recognised as such an association (however described)
under a prescribed State Act; and
(b) is, or purports to be, composed of substantially the same members as
the reporting unit; and
(c) has, or purports to have, officers who are substantially the same as
designated officers in relation to the reporting unit.
(2) A reporting unit is taken to have satisfied this Part if this section
applies to the reporting unit and:
(a) a Registrar, on the application of the reporting unit, issues a
certificate stating that the financial affairs of the reporting unit are
encompassed by the financial affairs of the associated State body; and
(b) the associated State body has, in accordance with prescribed State
legislation, prepared accounts, had those accounts audited, provided a copy of
the audited accounts to its members and lodged the audited accounts with the
relevant State authority; and
(c) the reporting unit has lodged a copy of the audited accounts with the
Industrial Registry; and
(d) any members of the reporting unit who are not also members of the
associated State body have been provided with copies of the accounts at
substantially the same time as the members of the reporting unit who are members
of the associated State body; and
(e) a report under section 254 has been prepared in respect of the
activities of the reporting unit and has been provided to members of the
reporting unit with the copies of the accounts.
(1) If, on the application of a reporting unit that is the whole of an
organisation made after the end of a financial year, a Registrar is satisfied
that the reporting unit’s income for the year did not exceed:
(a) in the case of a financial year that, because of section 240, is
a period other than 12 months—such amount as the Registrar considers
appropriate in the circumstances; or
(b) in any other case—$100,000 or such higher amount as is
prescribed;
the Registrar must issue to the reporting unit a certificate to that
effect.
(2) Where a certificate is issued under subsection (1) in relation to
a reporting unit in relation to a financial year:
(a) the following provisions of this section apply in relation to the
reporting unit in relation to the year; and
(b) except as provided in paragraph (c), this Part continues to apply
in relation to the reporting unit in relation to the year; and
(c) sections 253, 265, 266 and 268 do not apply in relation to the
reporting unit in relation to the year.
(3) This Part (other than this section) applies to the reporting unit in
relation to the year as if:
(a) a reference to a general purpose financial report prepared or to be
prepared under section 253 were a reference to a general purpose financial
report prepared under subsection (4) of this section; and
(b) the reference in subsection 272(5) to a general purpose financial
report prepared under section 253 were a reference to a general purpose
financial report prepared under subsection (4) of this section;
and
(c) the reference in sections 332 and 333 to documents lodged in the
Industrial Registry under section 268 were a reference to documents lodged
with the Industrial Registry in accordance with subsection (7) of this
section.
(4) Within the prescribed period after the end of the financial year, the
reporting unit must cause to be prepared, in accordance with the reporting
guidelines, from the financial records kept under subsection 252(1) in relation
to the year, the general purpose financial report required by those reporting
guidelines.
Note: This subsection is a civil penalty provision (see
section 305).
(5) After the making to the reporting unit of the report of the auditor
under section 257 in relation to the auditor’s inspection and audit
of the financial records kept by the reporting unit in relation to the year, and
before the end of the financial year immediately following the year, the
reporting unit must cause a copy of the report, together with copies of the
general purpose financial report to which the auditor’s report relates, to
be presented to a meeting of the members of the reporting unit.
Note: This subsection is a civil penalty provision (see
section 305).
(6) Where a member of a reporting unit requests the reporting unit to
provide to the member a copy of the auditor’s report and the general
purpose financial report, the reporting unit must provide a copy of each of the
documents to the member, free of charge, within 14 days after receiving the
request.
Note: This subsection is a civil penalty provision (see
section 305).
(7) The reporting unit must, within 90 days (or such longer period as a
Registrar allows) after the making to the reporting unit of the report under
section 257, lodge with the Registrar copies of the auditor’s report
and the general purpose financial report together with a certificate by a
prescribed designated officer that the information contained in the general
purpose financial report is correct.
Note: This subsection is a civil penalty provision (see
section 305).
(1) If, on the application of a reporting unit, a Registrar is satisfied,
after considering such circumstances (if any) as are prescribed, that the
reporting unit did not have any financial affairs in a financial year, the
Registrar may issue to the reporting unit a certificate to that effect in
respect of the financial year.
(2) The certificate exempts the reporting unit from the requirements of
this Part in respect of the financial year.
(3) The application must be made to a Registrar within 90 days, or such
longer period as the Registrar allows, after the end of the financial
year.
(1) A member of a reporting unit, or a Registrar, may apply to the
reporting unit for specified prescribed information in relation to the reporting
unit to be made available to the person making the application.
(2) The application must be in writing and must specify the period within
which, and the manner in which, the information is to be made available. The
period must not be less than 14 days after the application is given to the
reporting unit.
(3) A reporting unit must comply with an application made under
subsection (1).
Note: This subsection is a civil penalty provision (see
section 305).
(4) A Registrar may only make an application under subsection (1) at
the request of a member of the reporting unit concerned, and the Registrar must
provide to a member information received because of an application made at the
request of the member.
(5) A general purpose financial report prepared under section 253, a
concise report prepared under section 265 and a report prepared under
subsection 270(4) must include a notice drawing attention to
subsections (1), (2) and (3) of this section and setting out those
subsections.
Note: This subsection is a civil penalty provision (see
section 305).
(6) Without limiting the information that may be prescribed under
subsection (1), the information prescribed must include details (including
the amount) of any fees paid by the reporting unit for payroll deduction
services provided by a person who is an employer of:
(a) the member making the application for information; or
(b) the member at whose request the application was made.
(1) On application by a member of a reporting unit, the Commission may
make an order:
(a) authorising the applicant to inspect the financial records of the
reporting unit specified in the order; or
(b) authorising another person (whether a member or not) to inspect the
financial records of the reporting unit specified in the order on the
applicant’s behalf.
This subsection is subject to subsections (2) and (3).
(2) The Commission may only make the order if it is satisfied:
(a) that the applicant is acting in good faith; and
(b) there are reasonable grounds for suspecting a breach of:
(i) a provision of this Part; or
(ii) the reporting guidelines; or
(iii) a regulation made for the purposes of this Part; or
(iv) a rule of a reporting unit relating to its finances or financial
administration; and
(c) it is reasonable to expect that an examination of the financial
records will assist in determining if there is such a breach.
(3) The Commission may only make an order authorising the inspection of
financial records that relate to the suspected breach mentioned in
paragraph (2)(b).
(4) A person authorised to inspect the financial records may make copies
of the financial records unless the Commission orders otherwise.
(1) A person must not make an application under section 273 that is
vexatious or without reasonable cause.
Note: This subsection is a civil penalty provision (see
section 305).
(2) If the Commission considers an application under section 273 to
be vexatious or without reasonable cause, the Commission must dismiss the
application as soon as possible.
If the Commission makes an order under section 273, the Commission
may make any other orders it considers appropriate, including any or all of the
following:
(a) an order limiting the use that a person who inspects the financial
records may make of information obtained during the inspection;
(b) an order limiting the right of a person who inspects the financial
records to make copies in accordance with subsection 273(4);
(c) an order that the reporting unit is not required to provide the names
and addresses of its members.
(1) An applicant who inspects the financial records under
section 273, or a person who inspects the financial records on behalf of an
applicant, must not disclose information obtained during the inspection unless
the disclosure is to:
(a) a Registry official; or
(b) the applicant.
(2) A person who receives information under paragraph (1)(a) or (b)
must not disclose the information other than to another person covered by one of
those paragraphs.
Note: This section is a civil penalty provision (see
section 305).
The committee of management of a reporting unit, or the reporting unit by
a resolution passed at a general meeting, may authorise a member to inspect
financial records of the reporting unit.
(1) If, as a result of inspecting the financial records of a reporting
unit, a person reasonably believes that a breach of:
(a) a provision of this Part; or
(b) the reporting guidelines; or
(c) a regulation made for the purposes of this Part; or
(d) a rule of a reporting unit relating to its finances or financial
administration;
may have occurred, the person must give the Industrial Registry written
notice to that effect and give to the Industrial Registry any relevant
information obtained during the inspection.
(2) If the Industrial Registry receives notice under subsection (1)
and the Commission is satisfied that there are reasonable grounds for believing
that there has been a breach of:
(a) a provision of this Part; or
(b) the reporting guidelines; or
(c) a regulation made for the purposes of this Part; or
(d) a rule of a reporting unit relating to its finances or financial
administration;
the Commission must refer the matter to the Industrial Registrar.
Note: Where a matter is referred, it will be investigated
under section 334.
For the purposes of this Division, the Commission must be constituted by
a Presidential Member.
Right while officer
(1) An officer of an organisation or a branch may inspect the books of the
organisation at all reasonable times for the purposes of a legal
proceeding:
(a) to which the officer is a party; or
(b) that the officer proposes in good faith to bring; or
(c) that the officer has reason to believe will be brought against him or
her;
where the officer reasonably believes that the books contain information
that is relevant to the proceedings.
Right during 7 years after ceasing to be officer
(2) A person who has ceased to be an officer of an organisation or a
branch may inspect the books of the organisation at all reasonable times for the
purposes of a legal proceeding:
(a) to which the person is a party; or
(b) that the person proposes in good faith to bring; or
(c) that the person has reason to believe will be brought against him or
her;
where the person reasonably believes that the books contain information
that is relevant to the proceedings. This right continues for 7 years after the
person ceased to be an officer of the organisation or the branch.
Right to take copies
(3) A person authorised to inspect books under this section for the
purposes of a legal proceeding may make copies of the books for the purposes of
those proceedings.
(4) Where a person obtains copies under subsection (3), the
organisation is entitled to recover from the person any costs incurred by the
organisation in providing the copies.
Organisation or branch not to refuse access
(5) An organisation or branch must allow a person to exercise his or her
rights to inspect or take copies of the books under this section.
Meaning of books
(6) In this section:
books includes:
(a) a register; and
(b) any other record of information; and
(c) financial reports or financial records, however compiled, recorded or
stored; and
(d) a document.
This Chapter sets out some of the most significant duties of officers and
employees of organisations and branches of organisations. Other duties are
imposed by other provisions of this Act and other laws (including the general
law).
Part 2 sets out the general duties of officers and employees in
relation to the financial management of an organisation or a branch of an
organisation.
Part 3 sets out the general duties of officers and employees in
relation to orders or directions of the Federal Court or the
Commission.
This Part sets out some of the most significant duties of officers and
employees of organisations and branches of organisations in relation to the
financial management of an organisation or a branch of an
organisation.
This Part only applies in relation to officers and employees of an
organisation or a branch of an organisation to the extent that it relates to the
exercise of powers or duties of those officers and employees related to the
financial management of the organisation or branch.
For the purposes of this Part, a person is involved in a
contravention if, and only if, the person has:
(a) aided, abetted, counselled or procured the contravention; or
(b) induced, whether by threats or promises or otherwise, the
contravention; or
(c) been in any way, by act or omission, directly or indirectly, knowingly
concerned in or party to the contravention; or
(d) conspired with others to effect the contravention.
(1) An officer of an organisation or a branch must exercise his or her
powers and discharge his or her duties with the degree of care and diligence
that a reasonable person would exercise if he or she:
(a) were an officer of an organisation or a branch in the
organisation’s circumstances; and
(b) occupied the office held by, and had the same responsibilities within
the organisation or a branch as, the officer.
Note: This subsection is a civil penalty provision (see
section 305).
(2) An officer of an organisation or a branch who makes a judgment to take
or not take action in respect of a matter relevant to the operations of the
organisation or branch is taken to meet the requirements of subsection (1),
and their equivalent duties at common law and in equity, in respect of the
judgment if he or she:
(a) makes the judgment in good faith for a proper purpose; and
(b) does not have a material personal interest in the subject matter of
the judgment; and
(c) informs himself or herself about the subject matter of the judgment to
the extent he or she reasonably believes to be appropriate; and
(d) rationally believes that the judgment is in the best interests of the
organisation.
The officer’s belief that the judgment is in the best interests of
the organisation is a rational one unless the belief is one that no reasonable
person in his or her position would hold.
Note: This subsection only operates in relation to duties
under this section and their equivalents at common law or in equity (including
the duty of care that arises under the common law principles governing liability
for negligence)—it does not operate in relation to duties under any other
provision of this Act or under any other laws.
(1) An officer of an organisation or a branch must exercise his or her
powers and discharge his or her duties:
(a) in good faith in what he or she believes to be the best interests of
the organisation; and
(b) for a proper purpose.
Note: This subsection is a civil penalty provision (see
section 305).
(2) A person who is involved in a contravention of subsection (1)
contravenes this subsection.
Note: This subsection is a civil penalty provision (see
section 305).
(1) An officer or employee of an organisation or a branch must not
improperly use his or her position to:
(a) gain an advantage for himself or herself or someone else; or
(b) cause detriment to the organisation or to another person.
Note: This subsection is a civil penalty provision (see
section 305).
(2) A person who is involved in a contravention of subsection (1)
contravenes this subsection.
Note: This subsection is a civil penalty provision (see
section 305).
(1) A person who obtains information because he or she is, or has been, an
officer or employee of an organisation or a branch must not improperly use the
information to:
(a) gain an advantage for himself or herself or someone else; or
(b) cause detriment to the organisation or to another person.
Note 1: This duty continues after the person stops being an
officer or employee of the organisation or branch.
Note 2: This subsection is a civil penalty provision (see
section 305).
(2) A person who is involved in a contravention of subsection (1)
contravenes this subsection.
Note: This subsection is a civil penalty provision (see
section 305).
(1) If the members of an organisation ratify or approve a contravention of
section 285, 286, 287 or 288, the ratification or approval:
(a) does not prevent the commencement of proceedings for a contravention
of the section; and
(b) does not have the effect that proceedings brought for a contravention
of the section must be determined in favour of the defendant.
(2) If members of an organisation ratify or approve a contravention of
section 285, 286, 287 or 288, the Federal Court may take the ratification
or approval into account in deciding what order or orders to make under
section 306, 307 or 308 in proceedings brought for a contravention of the
section. In doing this, it must have regard to:
(a) how well-informed about the conduct the members were when deciding
whether to ratify or approve the contravention; and
(b) whether the members who ratified or approved the contravention were
acting for proper purposes.
An officer or employee does not contravene section 286, 287 or 288
by doing an act that another provision of this Act or the Workplace Relations
Act requires the officer or employee to do.
Sections 285 to 289:
(a) have effect in addition to, and not in derogation of, any rule of law
relating to the duty or liability of a person because of his or her office or
employment in relation to an organisation or a branch; and
(b) do not prevent the commencement of proceedings for a breach of duty or
in respect of a liability referred to in paragraph (a).
This section does not apply to subsection 285(2) to the extent to which it
operates on the duties at common law and in equity that are equivalent to the
requirements of subsection 285(1).
If:
(a) an officer relies on information, or professional or expert advice,
given or prepared by:
(i) an employee of the organisation or the branch whom the officer
believes on reasonable grounds to be reliable and competent in relation to the
matters concerned; or
(ii) a professional adviser or expert in relation to matters that the
officer believes on reasonable grounds to be within the person’s
professional or expert competence; or
(iii) another officer in relation to matters within the officer’s
authority; or
(iv) a collective body on which the officer did not serve in relation to
matters within the collective body’s authority; and
(b) the reliance was made:
(i) in good faith; and
(ii) after making proper inquiry if the circumstances indicated the need
for inquiry; and
(c) the reasonableness of the officer’s reliance on the information
or advice arises in proceedings brought to determine whether an officer has
performed a duty under this Part or an equivalent duty at common law or in
equity;
the officer’s reliance on the information or advice is taken to be
reasonable unless the contrary is proved.
(1) If the officers of an organisation or a branch delegate a power under
its rules, each of those officers is responsible for the exercise of the power
by the person to whom the power was delegated as if the power had been exercised
by the officer.
(2) An officer is not responsible under subsection (1) if:
(a) the officer believed on reasonable grounds at all times that the
person to whom the power was delegated would exercise the power in conformity
with the duties imposed on officers of the organisation or the branch by this
Act or the Workplace Relations Act; and
(b) the officer believed:
(i) on reasonable grounds; and
(ii) in good faith; and
(iii) after making proper inquiry if the circumstances indicated the need
for inquiry;
that the person to whom the power was delegated was reliable and
competent in relation to the power delegated.
This Part sets out the general duties of officers and employees in relation
to orders or directions of the Federal Court or the Commission.
For the purposes of this Part, a person is involved in a
contravention if, and only if, the person has:
(a) aided, abetted, counselled or procured the contravention; or
(b) induced, whether by threats or promises or otherwise, the
contravention; or
(c) been in any way, by act or omission, directly or indirectly, knowingly
concerned in or party to the contravention; or
(d) conspired with others to effect the contravention.
In this Part:
(a) a reference to an officer of an organisation includes a reference to
an officer of a branch of an organisation; and
(b) a reference to an employee of an organisation includes a reference to
an employee of a branch of an organisation.
(1) This section applies if:
(a) the Federal Court or the Commission has made an order or a direction
under this Act or the Workplace Relations Act; and
(b) the order or direction is in force; and
(c) the order or direction applies to an organisation.
(2) An officer or employee of the organisation must not do anything that
would cause the organisation to contravene the order or direction, knowing, or
reckless as to whether, the doing of the thing would result in the
contravention.
Note: This subsection is a civil penalty provision (see
section 305).
(3) An officer or employee of the organisation who is involved in a
contravention of the order or direction, or of subsection (2), contravenes
this subsection.
Note: This subsection is a civil penalty provision (see
section 305).
(1) This section applies if:
(a) the Federal Court or the Commission has made an order or a direction
under this Act or the Workplace Relations Act; and
(b) the order or direction is in force; and
(c) the order or direction applies to an organisation; and
(d) the order or direction prohibits the organisation from doing
something.
(2) An officer or employee of the organisation must not do anything that
would contravene the order or direction if the order or direction had applied to
him or her, knowing, or reckless as to whether, the doing of the thing would
result in such a contravention.
Note: This subsection is a civil penalty provision (see
section 305).
(3) An officer or employee of the organisation who is involved in a
contravention of subsection (2) contravenes this subsection.
Note: This subsection is a civil penalty provision (see
section 305).
(1) This section applies if:
(a) the Federal Court or the Commission has made an order or a direction
under this Act or the Workplace Relations Act; and
(b) the order or direction is in force; and
(c) the order or direction applies to an officer of an
organisation.
(2) The officer must not knowingly or recklessly contravene the order or
direction.
Note: This subsection is a civil penalty provision (see
section 305).
(3) An officer or employee of the organisation who is involved in a
contravention of subsection (2) contravenes this subsection.
Note: This subsection is a civil penalty provision (see
section 305).
(1) This section applies if:
(a) the Federal Court or the Commission has made an order or a direction
under this Act or the Workplace Relations Act; and
(b) the order or direction is in force; and
(c) the order or direction applies to an officer of an organisation;
and
(d) the order or direction prohibits the officer from doing
something.
(2) An officer or employee of the organisation must not do anything that
would contravene the order or direction if the order or direction had applied to
him or her, knowing, or reckless as to whether, the doing of the thing would
result in such a contravention.
Note: This subsection is a civil penalty provision (see
section 305).
(3) An officer or employee of the organisation who is involved in a
contravention of subsection (2) contravenes this subsection.
Note: This subsection is a civil penalty provision (see
section 305).
(1) This section applies if:
(a) the Federal Court or the Commission has made an order or a direction
under this Act or the Workplace Relations Act; and
(b) the order or direction is in force; and
(c) the order or direction applies to an employee of an
organisation.
(2) The employee must not knowingly or recklessly contravene the order or
direction.
Note: This subsection is a civil penalty provision (see
section 305).
(3) An officer or employee of the organisation who is involved in a
contravention of subsection (2) contravenes this subsection.
Note: This subsection is a civil penalty provision (see
section 305).
(1) This section applies if:
(a) the Federal Court or the Commission has made an order or a direction
under this Act or the Workplace Relations Act; and
(b) the order or direction is in force; and
(c) the order or direction applies to an employee of an organisation;
and
(d) the order or direction prohibits the employee from doing
something.
(2) An officer or employee of the organisation must not do anything that
would contravene the order or direction if the order or direction had applied to
him or her, knowing, or reckless as to whether, the doing of the thing would
result in such a contravention.
Note: This subsection is a civil penalty provision (see
section 305).
(3) An officer or employee of the organisation who is involved in a
contravention of subsection (2) contravenes this subsection.
Note: This subsection is a civil penalty provision (see
section 305).
(1) This section applies if:
(a) the Federal Court or the Commission has made an order or a direction
under this Act or the Workplace Relations Act; and
(b) the order or direction is in force; and
(c) the order or direction applies to a member of an
organisation.
(2) An officer or employee of the organisation who is involved in a
contravention of the order or direction contravenes this subsection.
Note: This subsection is a civil penalty provision (see
section 305).
This Chapter provides for civil penalties where specified provisions are
contravened.
It sets out the orders that may be made where a contravention has
occurred.
It also sets out the relationship with criminal proceedings arising out of
the same conduct.
(1) Subject to this Part, an application may be made to the Federal Court
for orders under sections 306, 307 and 308 in respect of conduct in
contravention of a civil penalty provision.
(2) These provisions are the civil penalty
provisions:
(a) subsection 52(1) (declaration about register);
(b) subsection 52(3) (false statement);
(c) subsection 104(1) (declaration about register);
(d) subsection 104(3) (false statement);
(e) subsection 151(2) and paragraph 151(11)(a) (lodging membership
agreements);
(f) subsection 152(3) (lodging assets and liabilities
agreements);
(g) section 169 (request for statement of membership);
(h) subsection 172(1) (removal of non-financial members from
register);
(i) section 175 (false representation as to membership);
(j) section 176 (false representation about resignation);
(k) subsection 189(2) (lodging election information);
(l) subsection 192(1) (declaration about register);
(m) subsection 192(3) (false statement in declaration);
(n) subsections 198(1), (4), (5) and (8) (response to post-election
report);
(o) subsections 230(1) and (2) (records to be kept and lodged by
organisations);
(p) subsections 231(1) and (2) (records to be held for 7 years);
(q) subsections 233(1) and (2) (lodging of information in
Registry);
(r) subsection 233(3) (false statement about records);
(s) subsection 235(2) (access to records);
(t) subsections 236(1) and (2) (delivery of records);
(u) subsection 237(1) (particulars of loans, grants and
donations);
(v) subsection 237(3) (false statement about loans, grants and
donations);
(w) sections 253 and 254 (keeping and preparation of
accounts);
(x) subsection 256(1) (appointment of auditors);
(y) subsections 256(3), (4), (5) and (6) (persons not to be
auditors);
(z) subsections 257(10) and (11) (auditor’s report);
(za) section 259 (forwarding notices to auditors);
(zb) subsections 263(2), (3) and (5) (removal of auditor);
(zc) subsection 264(3) (distribution of auditor’s reasons for
resignation);
(zd) subsections 265(1), (4) and (5) and 266(1) and section 267
(accounts, reports etc.);
(ze) section 268 (failure to lodge accounts etc.);
(zf) subsections 270(4), (5), (6) and (7) (accounts of low income
organisations);
(zg) subsections 272(3) and (5) (providing information to
members);
(zh) subsection 274(1) (frivolous or vexatious applications);
(zi) section 276 (disclosure of information);
(zj) subsections 285(1), 286(1) and (2), 287(1) and (2), and 288(1) and
(2) (officers’ duties);
(zk) subsections 297(2) and (3), 298(2) and (3), 299(2) and (3), 300(2)
and (3), 301(2) and (3), 302(2) and (3), and 303(2) (officers’
duties);
(zl) subsection 347(1) (provision of rules to members).
(3) For the purposes of this Part, any contravention of a civil penalty
provision by a branch or reporting unit is taken to be a contravention by the
organisation of which the branch or reporting unit is part.
(1) In respect of conduct in contravention of a civil penalty provision,
the Federal Court may make an order imposing on the person or organisation whose
conduct contravened the civil penalty provision a pecuniary penalty of not more
than:
(a) in the case of a body corporate—100 penalty units; or
(b) in any other case—20 penalty units.
(2) A penalty payable under this section is a civil debt payable to the
Commonwealth. The Commonwealth may enforce the order as if it were an order made
in civil proceedings against the person, reporting unit or organisation to
recover a debt due by the person. The debt arising from the order is taken to be
a judgment debt.
Compensation for damage suffered
(1) The Federal Court may order a person to compensate an organisation for
damage suffered by the organisation if:
(a) the person has contravened a civil penalty provision in Part 2 of
Chapter 9 in relation to the organisation; and
(b) the damage resulted from the contravention.
The order must specify the amount of the compensation.
Damage includes profits
(2) In determining the damage suffered by the organisation for the
purposes of making a compensation order, the Court is to have regard to any
profits made by any person resulting from the contravention.
Recovery of damage
(3) A compensation order may be enforced as if it were a judgment of the
Court.
(1) The Federal Court may make such other orders as the Court considers
appropriate in all the circumstances of the case.
(2) Without limiting subsection (1), the orders may include
injunctions (including interim injunctions), and any other orders, that the
Court thinks necessary to stop the conduct or remedy its effects.
(3) Orders may be made under this section whether or not orders are also
made under section 306 or 307.
Section 307:
(a) has effect in addition to, and not in derogation of, any rule of law
about the duty or liability of a person because of the person’s office or
employment in relation to an organisation; and
(b) does not prevent proceedings from being instituted in respect of such
a duty or in respect of such a liability.
Application by Industrial Registrar
(1) The Industrial Registrar, or some other person authorised in writing
by the Industrial Registrar under this subsection to make the application, may
apply for an order under this Part (other than an order in relation to a
contravention of a provision covered by paragraph 305(2)(zk)).
Application by Minister
(2) The Minister, or some other person authorised in writing by the
Minister under this subsection to make the application, may apply for an order
under this Part in relation to a contravention of a provision covered by
paragraph 305(2)(zk).
Application by organisation
(3) An organisation may apply for a compensation order.
(4) An organisation may intervene in an application for a pecuniary
penalty order or an order under section 308 in relation to the
organisation. The organisation is entitled to be heard on all matters other than
whether the order should be made.
The Federal Court must not make a pecuniary penalty order against a
person or organisation for a contravention if the person has been convicted of
an offence constituted by conduct that is substantially the same as the conduct
constituting the contravention.
(1) Proceedings for a pecuniary penalty order against a person or
organisation are stayed if:
(a) criminal proceedings are started or have already been started against
the person or organisation for an offence; and
(b) the offence is constituted by conduct that is substantially the same
as the conduct alleged to constitute the contravention.
(2) The proceedings for the order may be resumed if the person or
organisation is not convicted of the offence. Otherwise, the proceedings for the
order are dismissed.
Criminal proceedings may be started against a person or organisation for
conduct that is substantially the same as conduct constituting a contravention
of a civil penalty provision regardless of whether an order under this Part has
been made against the person or organisation.
Evidence of information given or evidence of production of documents by
an individual is not admissible in criminal proceedings against the individual
if:
(a) the individual previously gave the evidence or produced the documents
in proceedings for a pecuniary penalty order against the individual for a
contravention of a civil penalty provision (whether or not the order was made);
and
(b) the conduct alleged to constitute the offence is substantially the
same as the conduct that was claimed to constitute the contravention.
However, this does not apply to a criminal proceeding in respect of the
falsity of the evidence given by the individual in the proceedings for the
pecuniary penalty order.
(1) In this section:
eligible proceedings:
(a) means proceedings for a contravention of a civil penalty provision;
and
(b) does not include proceedings for an offence.
(2) If:
(a) eligible proceedings are brought against a person or organisation;
and
(b) in the proceedings it appears to the Federal Court that the person or
organisation has, or may have, contravened a civil penalty provision but
that:
(i) the person or organisation has acted honestly; and
(ii) having regard to all the circumstances of the case, the person or
organisation ought fairly to be excused for the contravention;
the Court may relieve the person or organisation either wholly or partly
from a liability to which the person or organisation would otherwise be subject,
or that might otherwise be imposed on the person or organisation, because of the
contravention.
(3) If a person or organisation thinks that eligible proceedings will or
may be begun against them, they may apply to the Federal Court for
relief.
(4) On an application under subsection (3), the Court may grant
relief under subsection (2) as if the eligible proceedings had been begun
in the Court.
(1) If:
(a) civil proceedings are brought against an officer of an organisation
for negligence, default, breach of trust or breach of duty in a capacity as such
an officer; and
(b) in the proceedings it appears to the court before which the
proceedings are taken that:
(i) the officer is or may be liable in respect of the negligence, default
or breach; and
(ii) the officer has acted honestly; and
(iii) having regard to all the circumstances of the case (including those
connected with the officer’s appointment), the officer ought fairly to be
excused for the negligence, default or breach;
the court may relieve the officer either wholly or partly from liability on
the terms that the court thinks appropriate.
(2) An officer of an organisation who has reason to apprehend that a claim
will or might be made against him or her for negligence, default, breach of
trust or breach of duty in a capacity as such an officer may apply to the
Federal Court for relief. On the application, the Court has the same power to
relieve the officer as it would have had under subsection (1) if it had
been a court before which proceedings against the officer for negligence,
default, breach of trust or breach of duty had been brought.
This Chapter deals with a variety of topics.
Part 2 contains provisions validating certain invalidities in relation
to registered organisations.
Part 3 provides that if a person is a party to certain kinds of
proceedings under the Act, the Commonwealth may, in some circumstances, give the
person financial assistance. Division 2 of Part 3 contains a rule
about the ordering of costs by a court.
Part 4 provides for a Registrar to make inquiries as to compliance
with financial accountability requirements and civil penalty provisions. The
Registrar may also conduct investigations.
Part 5 confers jurisdiction on the Federal Court in relation to
matters arising under this Act.
Part 6 deals with various procedural and administrative matters. It
also contains some offence provisions and provisions dealing with certain rights
of members of organisations (sections 345, 346 and 347).
In this Part:
invalidity includes nullity and also includes but is not
limited to any invalidity or nullity resulting from an omission, defect, error,
irregularity or absence of a quorum or caused by the fact that:
(a) a member, or each of 2 or more of the members, of a collective body of
an organisation or branch of an organisation, or one of the persons, or each of
2 or more of the persons, purporting to act as the members of such a collective
body, or a person, or each of 2 or more persons, holding or purporting to hold
an office or position in an organisation or branch:
(i) has not been elected or appointed or duly elected or appointed;
or
(ii) has purported to be elected or appointed by an election or
appointment that was a nullity; or
(iii) was not entitled to be elected or appointed or to hold office;
or
(iv) was not a member of the organisation; or
(v) was elected or appointed or purported to be elected or appointed, in a
case where one or more of the persons who took part in the election or
appointment or the purported election or appointment was or were not entitled to
do so or was or were not members of the organisation; or
(b) persons who were not entitled to do so, or were not members of the
organisation, took part in the making or purported making or the alteration or
purported alteration of the rules of an organisation or branch, as officers or
voters or otherwise.
Acts relating to elections, appointments, organisation’s
rules
(1) Subject to this section and section 321, all acts done in good
faith by a collective body of an organisation or branch of an organisation, or
by persons purporting to act as such a collective body, are valid in spite of
any invalidity that may later be discovered in:
(a) the election or appointment of the collective body, any member of the
collective body or the persons or any of the persons purporting to act as the
collective body; or
(b) the making or alteration of a rule of the organisation or
branch.
Acts done by person holding or purporting to hold office
(2) Subject to this section and section 321, all acts done in good
faith by a person holding or purporting to hold an office or position in an
organisation or branch are valid in spite of any invalidity that may later be
discovered in:
(a) the election or appointment of the person; or
(b) the making or alteration of a rule of the organisation or
branch.
Meaning of purporting to be member or office holder
(3) For the purposes of this section:
(a) a person is not to be treated as purporting to act as a member of a
collective body of an organisation or as the holder of an office or position in
an organisation unless the person has, in good faith, purported to be, and has
been treated by officers or members of the organisation as being, such a member
or the holder of the office or position; and
(b) a person is not to be treated as purporting to act as a member of a
collective body of a branch of an organisation or as the holder of an office or
position in the branch unless the person has, in good faith, purported to be,
and has been treated by officers or members of the branch as being, such a
member or the holder of the office or position.
Meaning of good faith
(4) For the purposes of this section:
(a) an act is to be treated as done in good faith until the contrary is
proved; and
(b) a person who has purported to be a member of a collective body of an
organisation or branch is to be treated as having done so in good faith until
the contrary is proved; and
(c) knowledge of facts from which an invalidity arises is not of itself to
be treated as knowledge that the invalidity exists; and
(d) an invalidity in:
(i) the election or appointment of a collective body of a branch of an
organisation or any member of such a collective body; or
(ii) the election or appointment of the persons or any of the persons
purporting to act as a collective body of a branch; or
(iii) the election or appointment of a person holding or purporting to
hold an office or position in a branch; or
(iv) the making or alteration of a rule of a branch;
is not to be treated as discovered before the earliest time proved to be
a time when the existence of the invalidity was known to a majority of the
members of the committee of management of the branch or to a majority of the
persons purporting to act as the committee of management; and
(e) an invalidity in any other election or appointment or in the making or
alteration of a rule to which this section applies is not to be treated as
discovered before the earliest time proved to be a time when the existence of
the invalidity was known to a majority of the members of the committee of
management of the organisation or to a majority of the persons purporting to act
as that committee of management.
Actions to which this section applies
(5) This section applies:
(a) to an act whenever done (including an act done before the commencement
of this section); and
(b) to an act done in relation to an association before it became an
organisation.
Certain invalid actions not validated by this section
(6) Nothing in this section validates the expulsion or suspension of, or
the imposition of a fine or any other penalty on, a member of an organisation
that would not have been valid if this section had not been enacted.
Relationship between this section and Part 3 of
Chapter 7
(7) Nothing in this section affects the operation of Part 3 of
Chapter 7 (Inquiries into elections).
(1) Subject to this section and section 321, after the end of 4 years
from:
(a) the doing of an act:
(i) by, or by persons purporting to act as, a collective body of an
organisation or branch of an organisation and purporting to exercise power
conferred by or under the rules of the organisation or branch; or
(ii) by a person holding or purporting to hold an office or position in an
organisation or branch and purporting to exercise power conferred by or under
the rules of the organisation or branch; or
(b) the election or purported election, or the appointment or purported
appointment of a person, to an office or position in an organisation or branch;
or
(c) the making or purported making, or the alteration or purported
alteration, of a rule of an organisation or branch;
the act, election or purported election, appointment or purported
appointment, or the making or purported making or alteration or purported
alteration of the rule, is taken to have been done in compliance with the rules
of the organisation or branch.
(2) The operation of this section does not affect the validity or
operation of an order, judgment, decree, declaration, direction, verdict,
sentence, decision or similar judicial act of the Federal Court or any other
court made before the end of the 4 years referred to in
subsection (1).
(3) This section extends to an act, election or purported election,
appointment or purported appointment, and to the making or purported making or
alteration or purported alteration of a rule:
(a) done or occurring before the commencement of this section;
or
(b) done or occurring in relation to an association before it became an
organisation.
(1) Where, on an application for an order under this section, the Federal
Court is satisfied that the application of section 319 or 320 in relation
to an act would do substantial injustice, having regard to the interests
of:
(a) the organisation; or
(b) members or creditors of the organisation; or
(c) persons having dealings with the organisation;
the Court must, by order, declare accordingly.
(2) Where a declaration is made under subsection (1),
section 319 or 320, as the case requires, does not apply, and is taken
never to have applied, in relation to the act specified in the
declaration.
(3) The Court may make an order under subsection (1) on the
application of the organisation, a member of the organisation or any other
person having a sufficient interest in relation to the organisation.
(4) The Court may determine:
(a) what notice, summons or rule to show cause is to be given to other
persons of the intention to make an application or an order under this section;
and
(b) whether and how the notice, summons or rule should be given or served
and whether it should be advertised in any newspaper.
(5) In this section:
act includes an election or purported election, appointment
or purported appointment, and the making or purported making or alteration or
purported alteration of a rule.
(1) An organisation, a member of an organisation or any other person
having a sufficient interest in relation to an organisation may apply to the
Federal Court for a determination of the question whether an invalidity has
occurred in:
(a) the management or administration of the organisation or a branch of
the organisation; or
(b) an election or appointment in the organisation or a branch of the
organisation; or
(c) the making or alteration of the rules of the organisation or a branch
of the organisation.
(2) On an application under subsection (1), the Court may make any
declaration it considers proper.
(3) Where, in a proceeding under subsection (1), the Court finds that
an invalidity of the kind referred to in that subsection has occurred, the Court
may make any order it considers appropriate:
(a) to rectify the invalidity or cause it to be rectified; or
(b) to negative, modify or cause to be modified the consequences in law of
the invalidity; or
(c) to validate any act, matter or thing rendered invalid by or because of
the invalidity.
(4) Where an order is made under subsection (3), the Court may give
such ancillary or consequential directions as it considers
appropriate.
(5) The Court must not make an order under subsection (3) unless it
is satisfied that the order would not do substantial injustice to:
(a) the organisation; or
(b) any member or creditor of the organisation; or
(c) any person having dealings with the organisation.
(6) The Court may determine:
(a) what notice, summons or rule to show cause is to be given to other
persons of the intention to make an application or an order under this section;
and
(b) whether and how the notice, summons or rule should be given or served
and whether it should be advertised in any newspaper.
(7) This section applies:
(a) to an invalidity whenever occurring (including an invalidity occurring
before the commencement of this section); and
(b) to an invalidity occurring in relation to an association before it
became an organisation.
(1) An organisation, a member of an organisation or any other person
having a sufficient interest in relation to an organisation may apply to the
Federal Court for a declaration that:
(a) a part of the organisation, including:
(i) a branch or part of a branch of the organisation; or
(ii) a collective body of the organisation or a branch of the
organisation;
has ceased to exist or function effectively and there are no effective
means under the rules of the organisation or branch by which it can be
reconstituted or enabled to function effectively; or
(b) an office or position in the organisation or a branch of the
organisation is vacant and there are no effective means under the rules of the
organisation or branch to fill the office or position;
and the Court may make a declaration accordingly.
(2) Where the Court makes a declaration under subsection (1), the
Court may, by order, approve a scheme for the taking of action by a collective
body of the organisation or a branch of the organisation, or by an officer or
officers of the organisation or a branch of the organisation:
(a) for the reconstitution of the branch, the part of the branch or the
collective body; or
(b) to enable the branch, the part of the branch or the collective body to
function effectively; or
(c) for the filling of the office or position.
(3) Where an order is made under this section, the Court may give any
ancillary or consequential directions it considers appropriate.
(4) The Court must not make an order under this section unless it is
satisfied that the order would not do substantial injustice to the organisation
or any member of the organisation.
(5) The Court may determine:
(a) what notice, summons or rule to show cause is to be given to other
persons of the intention to make an application or an order under this section;
and
(b) whether and how the notice, summons or rule should be given or served
and whether it should be advertised in any newspaper.
(6) An order or direction of the Court under this section, and any action
taken in accordance with the order or direction, has effect in spite of anything
in the rules of the organisation or a branch of the organisation.
(7) The Court must not under this section approve a scheme involving
provision for an election for an office unless the scheme provides for the
election to be held by a direct voting system or a collegiate electoral
system.
(1) Subject to this Division, the Minister may, on application made by a
person under subsection (2), authorise payment by the Commonwealth to the
person of financial assistance in relation to the whole or part of the
person’s relevant costs, if the Minister is satisfied:
(a) that hardship is likely to be caused to the person if the application
is refused; and
(b) that in all the circumstances it is reasonable that the application
should be granted.
(2) An application may be made to the Minister for financial assistance
under this Division by the following persons (other than organisations) in the
following circumstances:
(a) a person who made an application under section 163 or 164, where
the Federal Court granted a rule calling on another person, or an organisation,
to show cause why an order should not be made under section 163 or 164 in
relation to the other person or organisation;
(b) a person who was a party, otherwise than as an applicant, to a
proceeding under section 163 or 164;
(c) a person who made an application under section 164, where the
Federal Court made an interim order under subsection 164(4);
(d) a person who applied for an inquiry into an election, where the
Federal Court found that an irregularity happened;
(e) a person who applied for an inquiry into an election, where the
Federal Court certified under subsection 325(1) that the person acted reasonably
in applying;
(f) a person who incurred costs in relation to an inquiry into an
election, other than a person who applied for the inquiry;
(g) a member of an organisation who made an application under subsection
215(5), where the Federal Court declared that the person the subject of the
application was not eligible to be a candidate for election or to be elected or
appointed or had ceased to hold office;
(h) a member of an organisation who made an application under subsection
215(5), where the Federal Court certified under subsection 325(2) that the
member acted reasonably in making the application;
(j) a person who incurred costs in relation to an application made under
subsection 215(5), other than the person who made the application;
(k) a person who made an application to the Federal Court under
section 216 or 217, where, on the application, the Federal Court granted
the person leave under paragraph 216(2)(a) or 217(2)(a) or refused the person
leave under paragraph 216(2)(b) or 217(2)(b);
(m) a person who applied for an inquiry into a ballot under Part 2 of
Chapter 3, where the Federal Court found that an irregularity
happened;
(n) a person who applied for an inquiry into a ballot under Part 2 of
Chapter 3, where the Federal Court certified under subsection 325(3) that
the person acted reasonably in applying;
(o) a person who incurred costs in relation to an inquiry into a ballot
under Part 2 of Chapter 3, other than the person who applied for the
inquiry;
(p) a person who was a party to a proceeding under Part 2 of
Chapter 11;
(q) a person who made an application under section 167, where the
Federal Court granted a rule calling on another person, or an organisation, to
show cause why an order should not be made under subsection 167(2) in relation
to the other person or organisation.
(3) In subsection (1), relevant costs means:
(a) in the case of a person referred to in paragraph (2)(a), (c), (k)
or (q)—the costs incurred by the person in relation to the application
concerned; or
(b) in the case of a person referred to in paragraph (2)(b) or
(p)—the costs incurred by the person in relation to the proceeding
concerned; or
(c) in the case of a person referred to in paragraph (2)(d), (e), (m)
or (n)—the costs incurred by the person in relation to the inquiry
concerned; or
(d) in the case of a person referred to in paragraph (2)(f), (j) or
(o)—the costs referred to in that paragraph; or
(e) in the case of a member of an organisation referred to in
paragraph (2)(g) or (h)—the costs incurred by the member in relation
to the application concerned.
(1) Where a person has applied for an inquiry into an election but the
Federal Court does not find that an irregularity happened, the Court may certify
for the purposes of this Division that the person acted reasonably in
applying.
(2) Where a member of an organisation has made an application under
subsection 215(5) but the Federal Court does not declare that the person who is
the subject of the application was not eligible to be a candidate or to be
elected or appointed or had ceased to hold office, the Court may certify for the
purposes of this Division that the member acted reasonably in making the
application.
(3) Where a person has applied for an inquiry into a ballot under
Part 2 (amalgamation) or Part 3 (withdrawal from amalgamation) of
Chapter 3 but the Federal Court does not find that an irregularity
happened, the Court may certify that the person acted reasonably in
applying.
(1) The Minister may refuse an application made by a person referred to in
paragraph 324(2)(a), (b), (c) or (q) if satisfied that:
(a) the order sought in the proceeding concerned is the same or
substantially the same as an order obtained or sought in another relevant
proceeding and the proceeding involves the determination of the same or
substantially the same questions of fact or law or mixed fact and law as were or
are involved in the determination of the other relevant proceeding; or
(b) it would be contrary to the interests of justice to grant financial
assistance to the applicant in relation to the proceeding concerned.
(2) In subsection (1):
other relevant proceeding means a proceeding that:
(a) was instituted, whether before or after the commencement of this
section, before the institution of the proceeding in relation to which the
application referred to in that subsection was made; and
(b) has been heard and determined by, or is pending before, the Federal
Court.
(3) Where the Minister authorises the payment of financial assistance on
application made by a person referred to in paragraph 324(2)(a), (b), (c), or
(q), subsections (4) and (5) of this section apply.
(4) The Minister may:
(a) specify the amount, or determine from time to time the amounts, to be
paid; or
(b) authorise the payment of such amount as is determined, or such amounts
as are determined from time to time, under directions of the Minister.
(5) The Minister may authorise payment to be made by the Commonwealth
before or after the hearing or determination by the Federal Court of the
proceeding concerned.
Nothing in this Division authorises a payment in relation to fees of more
than one counsel appearing for the person applying for financial assistance
unless 2 or more counsel appeared, or are to appear, for any other person at the
hearing concerned.
Nothing in this Division limits the power of the Federal Court to make an
order as to the costs of proceedings before the Court.
(1) A person who is a party to a proceeding (including an appeal) in a
matter arising under this Act must not be ordered to pay costs incurred by any
other party to the proceeding unless the person instituted the proceeding
vexatiously or without reasonable cause.
(2) In subsection (1):
costs includes all legal and professional costs and
disbursements and expenses of witnesses.
(1) A Registrar, or another Registry official on behalf of a Registrar,
may make inquiries as to whether the following are being complied
with:
(a) Part 3 of Chapter 8;
(b) the reporting guidelines made under that Part;
(c) regulations made for the purposes of that Part;
(d) rules of a reporting unit relating to its finances or financial
administration.
(2) A Registrar, or another Registry official on behalf of a Registrar,
may make inquiries as to whether a civil penalty provision (see
section 305) has been contravened.
(3) The person making the inquiries may take such action as he or she
considers necessary for the purposes of making the inquiries. However, he or she
cannot compel a person to assist with the inquiries under this
section.
(1) If a Registrar is satisfied that there are reasonable grounds for
doing so, the Registrar may conduct an investigation as to whether:
(a) a provision of Part 3 of Chapter 8 has been contravened;
or
(b) the reporting guidelines made under that Part have been contravened;
or
(c) a regulation made for the purposes of that Part has been contravened;
or
(d) a rule of a reporting unit relating to its finances or financial
administration has been contravened.
(2) If a Registrar is satisfied that there are reasonable grounds for
doing so, the Registrar may conduct an investigation as to whether a civil
penalty provision (see section 305) has been contravened.
(3) A Registrar may also conduct an investigation in the circumstances set
out in the regulations.
(4) Where, having regard to matters that have been brought to notice in
the course of, or because of, an investigation under subsection (1) or (2),
a Registrar forms the opinion that there are grounds for investigating the
finances or financial administration of the reporting unit, the Registrar may
make the further investigation.
(5) An investigation may, but does not have to, follow inquiries under
section 330.
(1) Subject to subsection (2), a Registrar must:
(a) where the documents lodged in the Industrial Registry under
section 268 include a report of an auditor setting out any:
(i) defect or irregularity; or
(ii) deficiency, failure or shortcoming; and
(b) where for any other reason the Registrar considers that a matter
revealed in the documents should be investigated—investigate the
matter.
(2) The Registrar is not required to investigate the matters raised in the
report of the auditor if:
(a) the defect, irregularity, deficiency, failure or shortcoming consists
solely of the fact that the organisation concerned has kept financial records
for its membership subscriptions separately on a cash basis as provided in
subsection 252(4); or
(b) after consultation with the reporting unit and the auditor, the
Registrar is satisfied that the matters are trivial or will be remedied in the
following financial year.
(3) Where, having regard to matters that have been brought to notice in
the course of, or because of, an investigation under subsection (1), a
Registrar forms the opinion that there are grounds for investigating the
finances or the financial administration of the reporting unit, the Registrar
may make the further investigation.
(1) Where documents have been lodged in the Industrial Registry under
section 268, at least:
(a) if the reporting unit has more than 5,000 members—250 members;
or
(b) in any other case—5% of the members of the reporting
unit;
may request a Registrar to investigate the finances and the financial
administration of the reporting unit.
(2) On receipt of a request under subsection (1), a Registrar must
investigate the finances and the financial administration of the reporting unit
concerned. The Registrar, in conducting the investigation, is not limited to the
most recent financial year for which documents have been lodged and may
investigate years for which documents are yet to be lodged.
(3) Where the Registrar receives more than one request in relation to a
reporting unit during a financial year, the Registrar is only required to
conduct one investigation but may conduct more than one investigation.
If a matter is referred to the Industrial Registrar under
section 278, the Industrial Registrar must ensure that a Registrar conducts
an investigation.
(1) This section applies to:
(a) a designated officer or employee of the reporting unit concerned;
and
(b) a former designated officer or employee of the reporting unit;
and
(c) a person who held the position of auditor of the reporting unit during
the period that is the subject of the investigation;
if a Registrar has reason to believe that the person:
(d) has information or a document that is relevant to the investigation;
or
(e) is capable of giving evidence which the Registrar has reason to
believe is relevant to the investigation.
(2) For the purpose of making an investigation, the Registrar may, by
written notice, require the person:
(a) to give to the Registrar, within the period (being a period of not
less than 14 days after the notice is given) and in the manner specified in the
notice, any information within the knowledge or in the possession of the person;
and
(b) to produce or make available to the Registrar, at a reasonable time
(being a time not less than 14 days after the notice is given) and place
specified in the notice, any documents in the custody or under the control of
the person, or to which he or she has access; and
(c) to attend before the Registrar, at a reasonable time (being a time not
less than 14 days after the notice is given) and place specified in the notice,
to answer questions relating to matters relevant to the investigation, and to
produce to the Registrar all records and other documents in the custody or under
the control of the person relating to those matters.
(3) A notice requiring a person to attend must state that the person may
be accompanied by another person. The other person may be, but does not have to
be, a lawyer.
(1) If, at the conclusion of an investigation, the Registrar who conducted
the investigation is satisfied that the reporting unit concerned has
contravened:
(a) a provision of Part 3 of Chapter 8; or
(b) the reporting guidelines; or
(c) a provision of the regulations; or
(d) a rule of the reporting unit relating to the finances or financial
administration of the reporting unit;
the Registrar must notify the reporting unit accordingly.
(2) In addition to taking action under subsection (1), the Industrial
Registrar may do all or any of the following:
(a) issue a notice to the reporting unit requesting that the reporting
unit take specified action, within a specified period, to rectify the
matter;
(b) apply to the Federal Court for an order under Part 2 of
Chapter 10 (civil penalty provisions);
(c) refer the matter to the Director of Public Prosecutions for action in
relation to possible criminal offences.
Note: In appropriate circumstances, the Registrar may also
make a determination in accordance with section 247 (determination of
reporting units).
(3) The Registrar may, on application by the reporting unit, extend any
periods specified in the notice issued under subsection (2).
(4) The reporting unit must comply with the request made in the notice
issued under subsection (2).
(5) The Federal Court may, on application by the Registrar, make such
orders as the Court thinks fit to ensure that the reporting unit complies with
subsection (4).
(1) A person commits an offence if:
(a) the person does not comply with:
(i) a requirement under subsection 335(2) to attend before a Registrar;
or
(ii) a requirement under subsection 335(2) to give information or produce
a document; or
(b) the person gives information, or produces a document, in purported
compliance with a requirement under subsection 335(2), and the person knows, or
is reckless as to whether, the information or document is false or misleading;
or
(c) when attending before a Registrar in accordance with a requirement
under subsection 335(2), the person makes a statement, whether orally or in
writing, and the person knows, or is reckless as to whether, the statement is
false or misleading.
Maximum penalty: 30 penalty units.
(2) Strict liability applies to paragraph (1)(a).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) Paragraph (1)(a) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (3) (see subsection 13.3(3) of the Criminal
Code).
(4) A person is not excused from giving information, or producing a
document, that the person is required to give or produce under subsection 335(2)
on the ground that the information, or the production of the document, might
tend to incriminate the person or expose the person to a penalty.
(5) However:
(a) giving the information or producing the document; or
(b) any information, document or thing obtained as a direct or indirect
consequence of giving the information or producing the document;
is not admissible in evidence against the person in criminal proceedings or
proceedings that may expose the person to a penalty, other than proceedings
under, or arising out of, paragraph (1)(b) or (c).
(1) The Federal Court has jurisdiction with respect to matters arising
under this Act in relation to which:
(a) applications may be made to it under this Act; or
(b) actions may be brought in it under this Act; or
(c) questions may be referred to it under this Act or the Workplace
Relations Act; or
(d) penalties may be sued for and recovered under this Act; or
(e) prosecutions may be instituted for offences against this
Act.
(2) For the purposes of section 44 of the Judiciary Act 1903,
the Federal Court is taken to have jurisdiction with respect to any matter in
which a writ of mandamus or prohibition or an injunction is sought against an
officer or officers of the Commonwealth holding office under the Workplace
Relations Act and exercising powers or functions in relation to matters arising
under this Act.
Note: Section 44 of the Judiciary Act 1903 gives
the High Court of Australia power to remit a matter to a federal court that has
jurisdiction with respect to that matter.
(3) The Federal Court has jurisdiction with respect to matters remitted to
it under section 44 of the Judiciary Act 1903.
(1) Subject to this Act, the jurisdiction of the Federal Court in relation
to an act or omission for which an organisation or member of an organisation is
liable to be sued, or to be proceeded against for a pecuniary penalty, is
exclusive of the jurisdiction of any other court created by the Parliament or
any court of a State or Territory.
(2) The jurisdiction of the Federal Court in relation to matters arising
under section 163, 164 or 167 or Part 3 of Chapter 7 is exclusive
of the jurisdiction, or any similar jurisdiction, of a State industrial
authority.
(1) The jurisdiction of the Federal Court under this Act is to be
exercised by a Full Court in relation to:
(a) matters in relation to which applications are made to the Court under
section 28 (cancellation of registration); and
(b) matters in which a writ of mandamus or prohibition or an injunction is
sought against:
(i) a Presidential member; or
(ii) officers of the Commonwealth at least one of whom is a Presidential
member.
(2) Subsection (1) does not require the jurisdiction of the Court to
be exercised by a Full Court in relation to a prosecution for an offence merely
because the offence relates to a matter to which that subsection
applies.
(3) Subsection (1) does not, in relation to the matters referred to
in that subsection, require the jurisdiction of the Court to be exercised by a
Full Court to:
(a) join or remove a party; or
(b) make an order by consent disposing of an application (including an
order for costs); or
(c) give directions about the conduct of a proceeding, including
directions about:
(i) the use of written submissions; and
(ii) limiting the time for oral argument.
(1) At any stage of a proceeding in a matter arising under this Act, a
single Judge exercising the jurisdiction of the Federal Court:
(a) may refer a question of law for the opinion of a Full Court;
and
(b) may, of the Judge’s own motion or on the application of a party,
refer the matter to a Full Court to be heard and determined.
(2) If a Judge refers a matter to a Full Court under subsection (1),
the Full Court may have regard to any evidence given, or arguments adduced, in
the proceeding before the Judge.
In spite of section 24 of the Federal Court Act 1976, an
appeal does not lie to a Full Court from a judgment by a single Judge in an
inquiry referred to in section 69, 108 or 201 except in accordance with
leave given by the Court.
The Minister may, in writing, delegate to:
(a) the Secretary of the Department; or
(b) an SES employee or acting SES employee;
all or any of the Minister’s powers under this Act.
(1) Where it is necessary to establish, for the purposes of this Act, the
state of mind of a body corporate in relation to particular conduct, it is
sufficient to show:
(a) that the conduct was engaged in by an officer, director, employee or
agent of the body corporate within the scope of his or her actual or apparent
authority; and
(b) that the officer, director, employee or agent had the state of
mind.
(2) Any conduct engaged in on behalf of a body corporate by:
(a) an officer, director, employee or agent of the body corporate within
the scope of his or her actual or apparent authority; or
(b) any other person at the direction or with the consent or agreement
(whether express or implied) of an officer, director, employee or agent of the
body corporate, where the giving of the direction, consent or agreement is
within the scope of the actual or apparent authority of the officer, director,
employee or agent;
is taken, for the purposes of this Act, to have been engaged in also by the
body corporate.
(3) A reference in this section to the state of mind of a person includes
a reference to the knowledge, intent, opinion, belief or purpose of the person
and the person’s reasons for the intent, opinion, belief or
purpose.
Note: Section 6 of this Act defines this
Act to include the regulations.
Subject to reasonable provisions in the rules of an organisation in
relation to enrolment, every financial member of the organisation has a right to
vote at any ballot taken for the purpose of submitting a matter to a vote of the
members of the organisation, or of a branch, section or other division of the
organisation in which the member is included.
A financial member of an organisation may, by notice in writing, request
the returning officer:
(a) in relation to an election for an office or other position in the
organisation or a branch of the organisation; or
(b) in relation to a ballot taken for the purpose of submitting a matter
to a vote of the members of an organisation or a branch of the
organisation;
to provide to the member specified information for the purpose of
determining whether there has been an irregularity in relation to the election
or ballot, and the returning officer must not unreasonably withhold the
information.
(1) If a member of an organisation requests the organisation, or a branch
of the organisation, to provide to the member:
(a) a copy of the rules of the organisation or branch; or
(b) a copy of any amendments of the rules made since a specified time;
or
(c) a copy of the list of the offices, or of the persons holding the
offices, of an organisation or branch lodged in the Industrial Registry on
behalf of the organisation under subsection 233(1);
the organisation or branch (as the case requires) must provide a copy to
the member and, subject to the regulations, must provide the copy free of
charge.
Note: This subsection is a civil penalty provision (see
section 305).
(2) A request under this section:
(a) must be made to the secretary, or a person performing (in whole or
part) the duties of secretary, of the organisation or branch concerned;
and
(b) must be in writing; and
(c) must specify the period (of not less than 14 days) within which the
relevant copy must be provided.
(3) An organisation or branch whose rules or list of offices, or of the
persons holding the offices, are available on the Internet must inform a member
seeking a copy of that fact. However, informing the member of that fact does not
affect the organisation’s or branch’s other obligations under this
section and the regulations.
(4) The regulations may:
(a) prescribe the manner in which a request under this section must be
made; and
(b) prescribe the time within which the organisation or branch must
respond to the request; and
(c) prescribe the form or forms in which a copy of the rules, amendments
or list of offices, or of the persons holding the offices, may be provided;
and
(d) prescribe fees that may be charged by an organisation or branch for
providing a copy of the rules or amendments to a member if that member has been
provided with a copy of the same rules or amendments free of charge within the
past 3 years; and
(e) prescribe fees that may be charged by an organisation or branch for
providing a copy of a list of offices to a member if that member has already
been provided with a copy of the same list free of charge.
A certificate of a Registrar stating that a specified person was at a
specified time a member or officer of a specified organisation or a specified
branch of a specified organisation is, in all courts and proceedings, evidence
that the facts are as stated.
A list of the officers of an organisation or a branch of an organisation
lodged in the Industrial Registry on behalf of the organisation, or a copy of
any such list certified by a Registrar, is evidence that the persons named in
the list were, on the day when the list was lodged, officers of the organisation
or branch.
(1) A person commits an offence if:
(a) the person makes a representation that the person is authorised to
collect money on behalf of an organisation; and
(b) the person knows the representation is false.
Maximum penalty: 20 penalty units.
(2) A person commits an offence if:
(a) the person collects money on behalf of an organisation; and
(b) the person knows that he or she does not have authority to do
so.
Maximum penalty: 20 penalty units.
In spite of the provisions of any other law, a court may not direct that
a person is to serve a sentence of imprisonment in default of the payment of a
fine or other pecuniary penalty imposed under this Act.
(1) For the purposes of this Act, a court of a State or Territory whose
jurisdiction is limited, as to subject matter or parties, to any part of a State
or Territory is taken to have jurisdiction throughout the State or
Territory.
(2) On the hearing of a proceeding in a court for the recovery of a
penalty, fine, fee, levy or due, the court may, if in the interests of justice
it considers appropriate, adjourn the hearing to a court of competent
jurisdiction to be held at some other place in the same State or
Territory.
In spite of anything to the contrary in this Act or any other law, the
employer of an employee engaged in public sector employment must, for the
purposes of this Act and the Rules of the Commission, act only by an employing
authority of the employee acting on behalf of the employer and, in
particular:
(a) anything done by an employing authority of an employee has effect, for
those purposes, as if it had been done by the employer of the employee;
and
(b) anything served on, or otherwise given or notified to, an employing
authority of an employee has effect, for those purposes, as if it had been
served on, or given or notified to, the employer of the employee.
(1) For the purposes of this Act, the treasurer of a club is taken to be
the employer of a person employed for the purposes or on behalf of the club, and
any proceeding that may be taken under this Act by or against the club may be
taken by or against the treasurer on behalf of the club.
(2) The treasurer is authorised to retain out of the funds of the club
sufficient money to meet payments made by the treasurer on behalf of the club
under this section.
(3) In this section:
club means an unincorporated club.
treasurer includes a person having possession or control of
any funds of a club.
All documents and other things produced in evidence before the Commission
may be inspected by the Commission or by such other parties as the Commission
allows.
(1) In a proceeding before the Federal Court or the Commission:
(a) the person entitled to a trade secret may object that information
tendered as evidence relates to the trade secret; or
(b) a witness or party may object that information tendered as evidence
relates to the profits or financial position of the witness or party.
(2) Where an objection is made under subsection (1) to information
tendered as evidence, the information may only be given as evidence under a
direction of the Federal Court or Commission.
(3) If information is given as evidence under subsection (2), it must
not be published in any newspaper, or otherwise, unless the Federal Court or
Commission, by order, permits the publication.
(4) Where the Federal Court or Commission directs that information
relating to a trade secret or to the profits or financial position of a witness
or party is to be given in evidence, the evidence must be taken in private if
the person entitled to the trade secret, or the witness or party,
requests.
(5) The Federal Court or Commission may direct that evidence given in a
proceeding before it, or the contents of a document produced for inspection,
must not be published.
(6) A person commits an offence if the person gives as evidence, or
publishes, any information in contravention of this section or a direction given
under this section.
Maximum penalty: 20 penalty units.
A court that imposes a monetary penalty under this Act (other than a
penalty for an offence) may order that the penalty, or a part of the penalty, be
paid:
(a) into the Consolidated Revenue Fund; or
(b) to a particular organisation or person.
(1) Where a court has:
(a) imposed a monetary penalty under this Act (other than a penalty for an
offence); or
(b) ordered the payment of costs or expenses;
a certificate signed by a Registrar, specifying the amount payable and by
whom and to whom respectively it is payable, may be filed in the Federal Court
or in any other court of competent jurisdiction.
(2) A certificate filed in a court under subsection (1) is
enforceable in all respects as a final judgment of the court in which it is
filed.
(3) Where there are 2 or more creditors under a certificate, process may
be issued separately by each creditor for the enforcement of the certificate as
if there were separate judgments.
General power
(1) The Governor-General may make regulations prescribing all
matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
Specific matters on which regulations may be made
(2) The matters in relation to which the Governor-General may make
regulations include, but are not limited to:
(a) the manner in which, and the time within which, applications,
submissions and objections under this Act may be made and dealt with;
and
(b) the fees to be charged in relation to proceedings under this Act;
and
(c) the manner in which, and the time within which, the AEC must give
post-election and post-ballot reports; and
(d) requiring, or authorising a particular person to require, the
providing by all or any organisations of information relating to matters
relevant to the conduct of elections for offices in organisations and branches
of organisations; and
(e) requiring the exhibiting, on the premises of an employer bound by an
order of the Commission under this Act, of any of the terms of the order;
and
(f) penalties not exceeding a fine of 10 penalty units for offences
against the regulations; and
(g) pecuniary penalties not exceeding:
(i) in the case of a body corporate—25 penalty units; or
(ii) in any other case—5 penalty units;
for contravening civil penalty provisions in the regulations.
Note: Regulations made under the Workplace Relations Act may
also be relevant to the operation of this Act. For example, regulations about
the Commission’s practice and procedure may be made under section 359
of the Workplace Relations Act.
Regulations relating to payroll deduction facilities
(3) The Governor-General may also make regulations imposing requirements
relating to payroll deduction facilities on:
(a) the Commonwealth in its capacity as an employer; and
(b) employers who are constitutional corporations.
Note: For the meaning of constitutional
corporation, see section 6.
(4) Regulations referred to in subsection (3) may include, but are
not limited to:
(a) requirements that employers give employees information about money
received by the employer in relation to the provision by the employer of payroll
deduction facilities for an organisation; and
(b) requirements that employers who provide payroll deduction facilities
inform employees who use or have used the facilities in relation to their
membership of an organisation that ceasing to use the facilities does not
constitute resignation from the organisation.
If:
(a) an organisation is divided into branches; and
(b) the operations of one of the branches is confined to a prescribed
State or the operations of 2 or more of the branches are each confined to a
prescribed State; and
(c) the organisation proposes in accordance with Schedule 2 to
amalgamate with an associated body as defined by that Schedule for the purpose
of seeking the non-corporate registration of the branch, or of any of the
branches, referred to in paragraph (b) under an Act of the State concerned
that is, or under Acts of the States concerned each of which is, a prescribed
State Act for the purposes of that Schedule;
then, in addition to the other provisions of this Act, that Schedule
applies to the organisation but so applies only in relation to the branch or
branches referred to in paragraph (c).
Schedule 1—Persons,
other than employees, who may be members of associations applying for
registration
Note: See section 18
The persons specified for the purpose of subparagraphs 18(1)(b)(ii) and
(c)(ii) are persons (other than employees) who:
(a) are, or are able to become, members of an industrial organisation of
employees within the meaning of the Industrial Relations Act 1996 of New
South Wales; or
(b) are employees for the purposes of the Industrial Relations Act
1999 of Queensland; or
(c) are employees for the purposes of the Industrial Relations Act 1979
of Western Australia; or
(d) are employees for the purposes of the Industrial and Employee
Relations Act 1994 of South Australia.
Note: See section 360
(1) In this Schedule, unless the contrary intention appears:
amalgamation means the carrying out of arrangements in
relation to an organisation and an associated body under which it is intended
that:
(a) a branch of the organisation is to obtain non-corporate registration
under a prescribed State Act; and
(b) the associated body is to be de-registered under a prescribed State
Act; and
(c) members of the associated body who are not already members of the
organisation are to become members of the organisation; and
(d) the property of the associated body is to become the property of the
organisation forming part of the branch fund of the branch; and
(e) the liabilities of the associated body are to be satisfied from the
branch fund of the branch.
associated body, in relation to an organisation, means an
association registered under a prescribed State Act that is or purports to be
composed of substantially the same members, and has or purports to have
substantially the same officers, as a branch of the organisation in the same
State, including such an association that has purported to function as a branch
of the organisation.
State means a prescribed State.
(1) The rules of a branch of an organisation must provide for a
fund of the branch that is to be managed and controlled under rules of the
branch, and must make provision in relation to the fund in accordance with
subclause (2).
(2) The branch fund is to consist of:
(a) real or personal property of which the branch of the organisation, by
the rules or by any established practice not inconsistent with the rules, has,
or in the absence of a limited term lease, bailment or arrangement, would have,
the right of custody, control or management; and
(b) the amounts of entrance fees, subscriptions, fines, fees or levies
received by a branch, less so much of the amounts as is payable by the branch to
the organisation; and
(c) interest, rents, dividends or other income derived from the investment
or use of the fund; and
(d) a superannuation or long service leave or other fund operated or
controlled by the branch for the benefit of its officers or employees;
and
(e) a sick pay fund, accident pay fund, funeral fund, tool benefit fund or
similar fund operated or controlled by the branch for the benefit of its
members; and
(f) property acquired wholly or mainly by expenditure of the money of the
fund or derived from other assets of the fund; and
(g) the proceeds of a disposal of parts of the fund.
(3) The Commission may grant to a branch of an organisation exemption from
this clause or any provision of this clause on the ground that the
branch’s rules make adequate and reasonable provision for its funds,
having regard to the organisation’s functioning under this Act and the
Workplace Relations Act and its participation in any State workplace relations
system.
(1) Subclauses (2) and (3) apply in relation to the consideration by
the Commission of an application under section 158 for consent to a change
in the name, or an alteration of the eligibility rules, of an
organisation.
(2) The Commission must, in addition to any other relevant matters, have
regard to:
(a) whether there is, in relation to the organisation, an associated body
registered under a prescribed State Act; and
(b) whether the reason the change is sought is to enable the organisation,
in addition to representing members or staff members under this Act or the
Workplace Relations Act, to represent under the State Act a class of persons who
would, if the change were consented to, become eligible for
membership.
(3) In the case of an alteration to a rule that may effect a change in the
class of persons eligible for membership of a branch of the organisation that is
registered under the law of a State, the Commission must, before consenting,
give notice of the proposed change to the industrial registrar or similar
officer appointed under the law of the State in which the branch operates and,
if so requested, consult with the industrial registrar or officer.
The rules of an organisation must provide for the autonomy of a branch in
matters affecting members of the branch only and matters concerning the
participation of the branch in a State workplace relations system.
(1) Where it is not contrary to the rules of an organisation to do so, the
organisation may participate in State workplace relations systems.
(2) For the purpose of participating, a branch of an organisation may
become registered under a law of a State so long as that registration does not
involve the branch in becoming incorporated, or otherwise becoming a legal
entity, under the law of the State.
(3) Where an organisation participates, its rules may provide that the
secretary of the branch of the organisation in the State is the person to sue or
to be sued under the law of the State in relation to any acts or omissions
arising from its participation.
An organisation and an associated body may amalgamate in the manner set
out in this Part.
(1) The committee of management of an organisation and the committee of
management of the associated body must each pass a resolution proposing
amalgamation and specifying particulars of the proposed amalgamation.
(2) Application must be made to the Commission by the organisation for
approval of the amalgamation.
(3) The application must be accompanied by a copy of any proposed
alterations of the rules of the organisation.
(4) If the rules of the organisation do not comply, subject to subclause
2(3), with Part 2 of this Schedule in respect of each branch for which the
organisation proposes to seek non-corporate registration under a prescribed
State Act, the proposed alterations must include alterations necessary for the
rules so to comply.
(5) The Commission must:
(a) determine what notice is to be given to other persons of the
application; and
(b) determine whether, on whom and how notice should be served and whether
it should be advertised in any newspaper; and
(c) fix a period during which objections may be lodged.
(6) Objection may be made to the amalgamation, so far as it involves an
alteration of the eligibility rules of the organisation, by:
(a) another organisation; or
(b) a member of the associated body; or
(c) a registered association in the State in which the associated body
functions;
because there is another organisation to which the members of the
associated body, whose eligibility for membership would depend on the
alteration, could more conveniently belong.
(7) Objection may be made to the amalgamation by a member of the
organisation or of the associated body on the ground that:
(a) the provisions of this clause have not been complied with;
or
(b) the amalgamation would do substantial injustice to the members of the
organisation or associated body.
(8) If any objections are duly lodged or if the Commission otherwise deems
it advisable to do so, the Commission must:
(a) fix a day and place of hearing; and
(b) determine to whom and in what manner notice of the day and place of
the hearing shall be given.
(9) If the Commission:
(a) finds that no duly made objection is justified; and
(b) is satisfied that the provisions of this clause have been complied
with; and
(c) is satisfied that the amalgamation would not do substantial injustice
to the members of the organisation or of the associated body; and
(d) is satisfied that any proposed alterations of the rules of the
organisation:
(i) comply with and are not contrary to this Act and applicable awards;
and
(ii) are not otherwise contrary to law; and
(iii) have been decided on under the rules of the organisation;
the Commission must, subject to subclause (10), approve the
amalgamation and fix the day on which the amalgamation is to take effect, but
otherwise the Commission must refuse to approve the amalgamation.
(10) The Commission must not approve an amalgamation unless the Commission
is satisfied as to arrangements made relating to property and liabilities of the
associated body.
(11) On the day on which the amalgamation takes effect, any alteration of
the rules of the organisation takes effect.
(12) On the day on which the amalgamation takes effect, all members of the
associated body who are not already members of the organisation but are or
become, on that day, eligible for membership of the organisation:
(a) become members of the organisation; and
(b) are to be taken to have been members for the period ending on that day
during which they were members of the associated body.
The powers of the Commission under this Schedule are exercisable only by
a Presidential Member.