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INDUSTRIAL RELATIONS REGULATIONS (AMENDMENT) 1991 NO. 9
EXPLANATORY STATEMENTStatutory Rules 1991 No. 9
Industrial Relations Regulations (Amendment)
(Issued by the Authority of the Minister for Industrial Relations).
Section 359 of the Industrial Relations Act 1988 (the Principal Act) authorises the making of regulations prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The Industrial Relations Legislation Amendment Act 1990 (the amending Act) amends the Principal Act, and commences on proclamation. Section 4 of the Acts Interpretation Act 1901 provides, however, that where an Act amends another Act to confer a power to make regulations for the purposes of that Act then the power conferred may be exercised before the Act comes into operation.
Regulation 1 : Commencement
Regulation 1 provides that the Regulations commence at the same time at the amending Act.
Regulation 2 : Amendment
This is a formal provision.
Regulation 3 : Amendment of Regulation 12
This provision makes consequential changes which are necessary as a result of the changes to section 118 of the Principal Act and the insertion of section 118A. Regulation 12 presently deals with hearings under section 118, but is to deal with hearings under new section 118A.
Regulation 4 : New Regulation 40A
Section 13 of the amending Act amends section 191 of the Principal Act to correct a technical error in that section.
As previously worded, subsection 191(1) of the Principal Act required that, where a Presidential Member granted an application by an association for registration as an organisation under the Act, the Industrial Registrar had to enter certain details in the register of organisations, including the 'eligibility rules' of the association. This was Intended to mean the rules of the newly registered organisation relating to the conditions of eligibility for membership and to the description of the Industry, if any, In connection with which the organisation was to be registered.
In subsection 4(1) of the Principal Act, however, "eligibility rules" are defined so as to mean rules relating to conditions of eligibility for membership or to the description of the industry, if any, in connection with which an organisation is, or an association is proposed to be, registered.
The reference to "eligibility rules" in former subsection 191(1), therefore, did not take account of the disjunctive "or" contained in the definition of "eligibility rules".
The amendment made to subsection 191(1) overcomes this deficiency by simply requiring that the Industrial Registrar enter "prescribed particulars" in the register of organisations. A regulation was necessary, therefore, to give effect to the original intention of the provision. New regulation 40A, inserted by proposed regulation 3 of these statutory rules, prescribes the particulars which the Industrial Registrar must enter into the register of organisations.
Regulation 5 : Regulation 43 (Review of registration of small organisations)
Section 14 of the amending Act repeals section 193 of the Principal Act and substitutes new sections 193 and 193A.
New sections 193 and 193A provide for a two stage review of the continued registration of small organisations.
New section 193 provides for stage 1 of the review. A designated Presidential Member will be required to consider whether special circumstances exist justifying the continued registration of each small organisation, in the public interest. A small organisation, for the purposes of stage 1 of the review, is defined in new subsection 193(7) as an organisation with fewer than 1,000 members who are employees. Under subsection 4(1) of the Principal Act, the term "employee" includes a person whose usual occupation is that of employee. Stage 1 of the review must be commenced in the period from 1 March 1992 to 28 February 1993.
New section 193A provides for stage 2 of the review of small organisations which will operate in a similar manner to stage 1. For the purposes of proposed section 193A, a small organisation is defined as an employee organisation with fewer than 10,000 members who are employees. Stage 2 of the review must be commenced in the period from 1 March 1993 to 28 February 1994.
The section also provides for periodic reviews of small organisations at the discretion of the designated Presidential Member, but they may only be conducted, in respect of any small organisation, once every three years.
Regulation 5 in the statutory rules inserts a new regulation 43 which requires each employee organisation to lodge in the Australian Industrial Registry not later than 1 March in 1992 and in each subsequent year, a statement indicating that number of employee members of the organisation at 1 January of the year in which the statement is lodged.
If the organisation has some members who have been admitted to membership under an agreement with a State union under section 202 of the Principal Act but who are not otherwise eligible for membership, their number must also be given.
This provision will facilitate the identification of "small organisations" for the purposes of each stage of the review and for any subsequent review.
It will be an offence not to lodge a statement.
Regulation 6 : Part VII, Division 5 (Amalgamation of organisations)
Section 15 of the amending Act repealed Division 7 of Part IX of the Principal Act and substituted a new Division 7. Part IX of the Principal Act deals with organisations registered under the Act and the new Division 7 provides for the processes by which registered organisations of employees or employers may amalgamate.
The intention of the new Division 7 of Part IX of the Act is to provide for speedier, more flexible processes leading to a determination by members of whether an amalgamation is to proceed. This is to be achieved by revised procedures and by measures designed to minimise, as far as possible, delays or difficulties arising from technical problems or defects in the steps taken by the organisations which are seeking to amalgamate. Members of the organisations concerned decide whether an amalgamation is to proceed, and safeguards exist to ensure the provision to members of information about a proposed amalgamation.
Regulations were necessary to give effect to many of the provisions of the new Division.
Regulation 6 in the Statutory Rules, therefore, repeals former Division 5 of Part VII of the Regulations and substitutes a new Division 5, which deals with the amalgamation of organisations and contains the following new regulations.
Interpretation
New regulation 63 contains interpretation provisions, including definitions of the terms "applicant"; "ballot"; "closing day"; "commencing day"; "inquiry"; "Judge"; "multiple ballot paper" and "scrutineer" for the purposes of the Division. Provision is also made relating to the signing of documents under the Division.
Federations
New regulation 64 prescribes:
(i) the constituent document of the federation (i.e., its rules or a copy of the agreement between the participants);
(ii) the particulars which must be included with an application for recognition as a federation under paragraph 236(2)(b);
(iii) the particulars of a federation which, in accordance with subsections 236(4) and 236(7), the Industrial Registrar must enter into the register of organisations;
(iv) the parties who may apply for an order terminating the existence of a federation.
A period of three years from the date of formation of the federation is prescribed as the period for the lodging of an application for amalgamation under section 242. Under subsection 243(8), a federation ceases to exist if an amalgamation application has not been lodged in this period.
Details of certain changes to the federation or its powers and function must be given to the Industrial Registrar. A penalty is provided for failure to do so.
Application for a community of interest declaration
New regulation 65 prescribes the form and content of an application for a declaration under subsection 241(1) that a community of interest exists between organisations which propose to amalgamate.
Application for approval Tor submission of amalgamation to ballot
New regulation 66 prescribes the form and content of an application under subsection 242(1) for approval by a designated Presidential Member for the submission of an amalgamation proposal or proposals to ballot of the members of the organisations or the association concerned in the amalgamation. It also prescribes certain material which must accompany the application. Subregulation 66(2) relates to service of documents in connection with a proposed amalgamation.
Application for exemption from ballot
New regulation 67 prescribes the form and content of an application under subsection 244(1) by an organisation for an exemption from the general requirement for the holding of a ballot of the members in respect of an amalgamation.
Application for ballot not conducted under section 253J of the Act
New regulation 68 prescribes the form and content of an application under subsection 245(1) by an organisation for approval to hold an attendance ballot in respect of an amalgamation, rather than a secret postal ballot.
Withdrawal of applications lodged under section 241, 242, 244 or 245 of the Act
New regulation 69 sets out the procedures to be followed where there is to be a withdrawal of or from an application lodged under sections 242, 243, 244 or 245 of the Act. The proposed regulation also specifies the manner and the form of the withdrawal, and requires the Industrial Registrar to give notice to bodies or persons who may be affected by the withdrawal.
Prescribed matters - subsection 251(3) of the Act
New regulation 70 prescribes, for the purposes of subsection 251(3), the matters in relation to which a person, other than one of the applicants for amalgamation, may make submissions at an amalgamation hearing with the leave of the designated Presidential Member.
Public notification of a refusal to approve the submission of an amalgamation to ballot
New regulation 71 provides that if, under section 252, the designated Presidential Member has refused to approve the submission of an amalgamation to ballot, the Industrial Registrar must cause public notice of the refusal to be published in a newspaper or newspapers. Although the form and content of the notice are matters for the Registrar's discretion, the notice must include certain matters set out in the Regulation.
Time for lodging an objection under section 253 of the Act
New regulation 72 specifies the time allowed for the making of objections under section 253 to a proposed amalgamation.
Manner of making objections - section 253 of the Act
New regulation 73 specifies the manner in which an objection to a proposed amalgamation must be made and the form of the objection.
Prescribed persons - subsection 253(3) of the Act
New regulation 74 specifies, for the purposes of subsection 253(3) of the Act, the persons who may object to a proposed amalgamation.
Prescribed grounds - subsection 253(3) of the Act
New regulation 75 specifies the grounds upon which an objection may be made to a proposed amalgamation.
Service of notice of objection
New regulation 76 requires that a copy of a notice of objection to a proposed amalgamation be served on the applicant within 7 days of lodgment. The copy must be served on the applicant specified in the amalgamation application as the applicant to receive service of documents [see paragraph (a) of subregulation 66(1)].
Statement in reply
New regulation 77 allows the applicants for an amalgamation to lodge in the Industrial Registry a statement which answers an objection to the amalgamation proposal. The new regulation also prescribes time limits for the lodging and for serving copies of the statement on any parties to the objection.
Hearing of objections
New regulation 78 specifies the duties of the designated Presidential Member in relation to arranging for the hearing of any objection to a proposed amalgamation. The designated Presidential Member may hear objections together or separately. Under subregulation (4) oral evidence may be given at the hearing of an objection.
Applicants to be heard before an application way be refused under section 253A of the Act
New regulation 79 requires the designated Presidential Member dealing with an amalgamation proposal to give the applicants an opportunity to be heard before he or she decides to refuse the application to submit the amalgamation proposal to ballot.
Roll of voters - preparation
New regulation 80 specifies the requirements for a roll of voters for a ballot of the members of an organisation in relation to a proposed amalgamation. The roll must be completed not later than 14 days before the commencing day of the amalgamation ballot.
Roll of voters - inspection etc.
New regulation 81 provides for the right of members of an organisation who are participating in an amalgamation ballot to inspect the roll of voters in relation to a proposed amalgamation and sets out the manner in which, and the period during which, the right may be exercised. Persons who are not members of the organisation concerned may inspect the roll with the authorisation of the electoral official conducting the ballot.
Form and publication of notice of ballot
New regulation 82 requires the electoral official conducting an amalgamation ballot to give notice of the opening and closing days of an amalgamation ballot to members of the organisation concerned. The precise form and method of the notice are matters for the electoral official's discretion.
Conduct of Ballot
New regulation 83 gives the electoral official conducting an amalgamation ballot power to take such action as appears necessary to ensure that no irregularities occur in the ballot.
Scheme for amalgamation - Registrar to supply copies of documents
New regulation 84 requires the Industrial Registrar to supply to the Australian Electoral Commission a copy of certain documents lodged in relation to a proposed amalgamation, including the scheme of amalgamation and any subsequent amendments to that scheme.
Scheme for amalgamation - electoral official to supply copies of documents on request
New regulation 85 requires the electoral official conducting an amalgamation ballot to provide, on request, without delay and free of charge to any person who is entitled to vote in the ballot a copy of the scheme for the amalgamation or the outline of schemes or both. These are documents with which the Commission will have been provided by the Industrial Registrar.
Ballot not conducted under section 253J of the Act - electoral official to fix commencement and closing times, and provide information and material to persons entitled to vote
New regulation 86 requires the electoral official conducting an attendance ballot under s253H to:
- fix, within the commencement and closing days for the ballot set by the designated Presidential Member under section 253B, the commencement and closing times of the meetings at which the ballots under section 253H are to be held;
- give notice of the times fixed for the meetings at which the ballot is to be held, and of the places where the meetings will be held;
- give notice of how a person entitled to vote in the ballot may obtain an absentee vote;
- give notice of the availability of the complete scheme for the amalgamation and how a person entitled to vote in the ballot may obtain such a copy; and
- post to those people entitled to vote in the amalgamation ballot copies of the outline of the scheme for the amalgamation referred to in subsection 242(2) and copies of the yes and no statements referred to in section 253D.
The manner and form of the notice is a matter for the electoral official's discretion.
Ballot papers - forms
New regulation 87 prescribes the form of ballot papers to be used in connection with a ballot in each type of amalgamation proposal.
Issuing of ballot papers - attendance voting
New regulation 88 deals with the issuing of ballot papers for an attendance ballot under section 253H and sets out the procedures to be followed by the responsible electoral official.
Dispatch of ballot papers - secret postal ballots
New regulation 89 deals with the dispatch of ballot papers in a secret postal ballot under section 253J and sets out the procedures to be followed by the responsible electoral official.
Duplicate ballot papers - attendance voting
New regulation 90 permits a person voting in an attendance ballot conducted in under section 253H to obtain a duplicate ballot paper in the event of the person accidentally spoiling the paper.
Duplicate ballot papers etc - postal voting
New regulation 91 permits a person voting in a secret postal ballot conducted under section s2531 to obtain a duplicate ballot paper where the voter does not receive the ballot paper, or if it has been lost, destroyed or spoilt. A similar provision is made for absentee voters in relation to a ballot conducted under section 253H whose ballot paper has not been received or has been lost, destroyed or spoilt.
Manner of voting
New regulation 92 prescribes how a person voting at an amalgamation ballot is to record his or her vote on the ballot paper.
Custody of ballot papers
New regulation 93 requires the electoral official conducting the ballot to keep completed ballot papers in safe custody until a scrutiny has been conducted.
Scrutiny
New regulation 94 sets out the procedures to be followed by the electoral official conducting the ballot in relation to conducting a scrutiny of the ballot in order to ascertain the result of the ballot.
Scrutineers
New regulation 95 provides for the appointment of scrutineers, and sets out their rights and duties with respect to the scrutiny of the ballot.
Certificate showing particulars of ballot
New regulation 96 provides for the preparation within 14 days by the responsible electoral official of a certificate showing specified information in relation to the ballot.
Preparation of ballot papers etc.
New regulation 97 requires the preservation for specified periods by the Australian Electoral Commission of all ballot papers and documents relating to the ballot.
Inquiry into ballot irregularity - application
New regulation 98 sets out the procedures to be followed by an applicant for an inquiry under section 253M by the Federal Court of Australia into alleged irregularities in an amalgamation ballot and deems an inquiry to have been instituted upon the lodging of an application.
Inquiry Into ballot irregularity - directions as to hearing
New regulation 98A provides for the giving of directions by the Federal Court or by a Judge of the Federal Court in Chambers to ensure that all persons who are entitled to be represented, or who may be entitled to be represented, at an inquiry into an amalgamation ballot are notified of the time and place for the inquiry.
Inquiry into ballot irregularity - inspection of documents
New regulation 98B empowers the Federal Court or a Judge of the Federal Court in Chambers to authorise inspection of any documents used in or relevant to the ballot once an inquiry has been instituted. Subregulation (2) creates an offence of wilfully hindering or obstructing a person carrying out such an inspection and provides a penalty for the offence.
Inquiry into ballot irregularity - procedure at hearing
New regulation 98C provides for the procedures to be followed by the Federal Court at a hearing in relation to an inquiry into an alleged irregularity in an amalgamation ballot.
Inquiry into ballot irregularity - interim orders In case of uncompleted ballot
New regulation 98D empowers the Federal Court to make certain interim orders in an inquiry into an irregularity alleged to have occurred in relation to an uncompleted amalgamation ballot. Subregulation 98D(3) creates an offence of wilfully refusing or failing to comply with the order of the Court under subregulation (1) and provides penalties for such an offence.
Public notification of amalgamation day
New regulation 98E requires the Industrial Registrar to give notice in appropriate newspapers of the date fixed by the designated Presidential Member under section 253Q as the day on which the amalgamation is to take effect.
Registration of amalgamation organisations - prescribed particulars
New regulation 98F specifies the particulars of a proposed amalgamated organisation which, under subsection 253Q(3), the Industrial Registrar must enter into the register of organisations.
Notification of decisions, ballots, etc - additional means way be used
New regulation 98G allows a person who is required under the regulations to give notice of some event in a certain way, to give additional notice of that event in some other form, such as by mail or advertisement.
Regulation 7 : Schedule 1 (Forms)
Regulation 7 of the Statutory Rules makes certain consequential amendments to the forms which are to be used in respect of amalgamations.