WORKPLACE RELATIONS LEGISLATION AMENDMENT(REGISTRATION AND ACCOUNTABILITY OF ORGANISATIONS) (CONSEQUENTIAL PROVISIONS) ACT 2002 - SCHEDULE 2 - Amendment of the Workplace Relations Act 1996

Commonwealth Consolidated Acts

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WORKPLACE RELATIONS LEGISLATION AMENDMENT(REGISTRATION AND ACCOUNTABILITY OF ORGANISATIONS) (CONSEQUENTIAL PROVISIONS) ACT 2002 - SCHEDULE 2

- Amendment of the Workplace Relations Act 1996

Part 1—Amendments

Workplace Relations Act 1996

1 Paragraph 3(g)

Repeal the paragraph.

2 Subsection 4(1) (definition of accounting records)

Repeal the definition.

3 Subsection 4(1) (definition of auditor)

Repeal the definition.

4 Subsection 4(1) (definition of collegiate electoral
system)

Repeal the definition.

5 Subsection 4(1) (paragraph (c) of the definition of
demarcation dispute)

After "this Act", insert ", or the Registration and Accountability of Organisations Schedule,".

6 Subsection 4(1) (definition of designated Presidential
Member)

Repeal the definition.

7 Subsection 4(1) (definition of direct voting
system)

Repeal the definition.

8 Subsection 4(1) (definition of electoral official)

Repeal the definition.

9 Subsection 4(1) (definition of eligibility rules)

Repeal the definition.

10 Subsection 4(1) (definition of enterprise
association)

Repeal the definition.

11 Subsection 4(1) (definition of financial year)

Repeal the definition.

12 Subsection 4(1) (definition of full-time office)

Repeal the definition.

13 Subsection 4(1) (definition of irregularity)

Repeal the definition.

14 Subsection 4(1) (definition of office)

Repeal the definition, substitute:

"office" has the same meaning as in the Registration and Accountability of Organisations Schedule.

15 Subsection 4(1) (definition of one-tier collegiate electoral
system)

Repeal the definition.

16 Subsection 4(1) (definition of organisation)

Repeal the definition, substitute:

"organisation" means an organisation registered under the Registration and Accountability of Organisations Schedule.

Note: An organisation that was registered under the Workplace Relations Act 1996 immediately before the commencement of item 1 of Schedule 2 to the Workplace Relations Legislation Amendment (Registration and Accountability of Organisations) (Consequential Provisions) Act 2002 (the Consequential Provisions Act ) is taken to have been registered under the Registration and Accountability of Organisations Schedule (see item 15 of Schedule 1 to the Consequential Provisions Act).

17 Subsection 4(1) (definition of panel)

Omit ", except in section 38,".

18 Subsection 4(1) (definition of postal ballot)

Repeal the definition.

19 Subsection 4(1)

Insert:

"Registration and Accountability of Organisations Schedule" means Schedule 1B.

19A Subsection 4(1) (at the end of the definition of this
Act)

Add "but does not include Schedule 1B or regulations made under that Schedule".

20 Subsection 4(2)

Repeal the subsection.

21 At the end of paragraph 4(3)(a)

Add "and".

22 At the end of subsection 4(3)

Add:

; and (d) an industrial dispute within the meaning of the Registration and Accountability of Organisations Schedule. 23 Subsection 4(4)

Repeal the subsection.

24 Subsection 4(5)

Omit "subsection 202(1)", substitute "subsection 151(1) of the Registration and Accountability of Organisations Schedule".

25 Subsection 4(6)

Repeal the subsection.

26 Section 6

Repeal the section, substitute:

6 Act binds Crown

(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.

27 After section 8

Insert:

8A Functions of Commission

The functions of the Commission are the functions conferred on the Commission by this Act, the Registration and Accountability of Organisations Schedule or otherwise.

28 At the end of section 27

Add:

(3): In this section:

"proceeding" includes a proceeding under the Registration and Accountability of Organisations Schedule.

29 Subsection 30(1)

After "this Act", insert "and the Registration and Accountability of Organisations Schedule".

30 Subsection 30(3)

After "this Act" (wherever occurring), insert ", the Registration and Accountability of Organisations Schedule".

31 Section 31

After "this Act", insert "and the Registration and Accountability of Organisations Schedule".

32 Section 32

After "this Act", insert "or the Registration and Accountability of Organisations Schedule".

33 Section 32

Omit "(including a member in the capacity of designated Presidential Member)".

34 Section 33

After "this Act", insert "and the Registration and Accountability of Organisations Schedule".

35 At the end of subsection 37(3)

Add "mentioned in subsection (1)".

36 At the end of section 37

Add:

(4): A member of the Commission may be a member of the panel established under section 14 of the Registration and Accountability of Organisations Schedule.

37 Section 38

Repeal the section.

38 At the end of subsection 40(1)

Add "or the Registration and Accountability of Organisations Schedule".

39 At the end of paragraphs 45(1)(a) to (ed)

Add "and".

Note: The heading to section 45 is altered by adding at the end "relating to matters arising other than under the Registration and Accountability of Organisations Schedule".

40 Paragraph 45(1)(f)

Repeal the paragraph.

41 At the end of paragraphs 45(3)(a) to (bb)

Add "and".

42 Paragraph 45(3)(c)

Repeal the paragraph.

43 After section 45

Insert:

45A Appeals to Full Bench relating to matters arising under the
Registration and Accountability of Organisations Schedule etc.

(1): Subject to the Registration and Accountability of Organisations Schedule and this Act, an appeal lies to a Full Bench, with the leave of the Full Bench, against:

(a): a decision of a member of the Commission by way of a finding in relation to a matter arising under the Registration and Accountability of Organisations Schedule; and
(b): an order made by a member of the Commission under that Schedule, other than an order made by consent of the parties to an industrial dispute; and
(c): a decision of a member of the Commission under that Schedule not to make an order; and
(d): a decision of a member of the Commission under paragraph 111(1)(g) of this Act; and
(e): a decision of a member of the Commission that the member has jurisdiction, or a refusal or failure of a member of the Commission to exercise jurisdiction, in a matter arising under the Registration and Accountability of Organisations Schedule.

(2): A Full Bench must grant leave to appeal under subsection (1) if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted.
(3): An appeal under subsection (1) may be instituted by:

(a): a party to the proceeding; or
(b): a person bound by an order; or
(c): a person aggrieved by the decision.

(4): Where an appeal has been instituted under this section, a Full Bench or Presidential Member may, on such terms and conditions as the Full Bench or Presidential Member considers appropriate, order that the operation of the whole or a part of the decision or act concerned be stayed pending the determination of the appeal or until further order of a Full Bench or Presidential Member.
(5): A Full Bench may direct that 2 or more appeals be heard together, but an organisation or person who has a right to be heard in relation to one of the appeals may be heard in relation to a matter raised in another of the appeals only with the leave of the Full Bench.
(6): For the purposes of an appeal under this section, a Full Bench:

(a): may admit further evidence; and
(b): may direct a member of the Commission to provide a report in relation to a specified matter.

(7): On the hearing of the appeal, the Full Bench may do one or more of the following:

(a): confirm, quash or vary the decision or act concerned;
(b): make an order or decision dealing with the subject-matter of the decision or act concerned;
(c): direct the member of the Commission whose decision or act is under appeal, or another member of the Commission, to take further action to deal with the subject-matter of the decision or act in accordance with the directions of the Full Bench;
(d): in the case of an appeal under paragraph (1)(d)—take any action (including making an order) that could have been taken if the decision under paragraph 111(1)(g) had not been made.

(8): If, under paragraph (6)(b), a Full Bench directs a member of the Commission to provide a report, the member must, after making such investigation (if any) as is necessary, provide the report to the Full Bench.
(9): Each provision of this Act and the Registration and Accountability of Organisations Schedule relating to the hearing or determination of a matter mentioned in subsection (1) of this section extends to the hearing or determination of an appeal under this section.

44 Subsection 48(1)

After "this Act", insert "or the Registration and Accountability of Organisations Schedule".

45 Paragraph 63(1)(a)

Repeal the paragraph.

46 At the end of paragraph 63(1)(d)

Add "or the Registration and Accountability of Organisations Schedule".

47 Subsection 63(2)

Repeal the subsection.

48 Subsection 66(1)

After "Industrial Registry", insert "under this Act and the Registration and Accountability of Organisations Schedule".

49 Paragraph 67(2)(a)

After "this Act", insert ", the Registration and Accountability of Organisations Schedule".

50 Paragraph 67(2)(b)

After "this Act", insert "or the Registration and Accountability of Organisations Schedule".

51 Paragraph 75(2)(a)

After "this Act", insert ", the Registration and Accountability of Organisations Schedule".

52 Paragraph 75(2)(b)

After "this Act", insert "or the Registration and Accountability of Organisations Schedule".

53 Paragraph 81(1)(a)

After "this Act", insert ", the Registration and Accountability of Organisations Schedule (to the extent permitted by that Schedule) or any other Act".

54 At the end of paragraph 81(1)(b)

Add ", the Registration and Accountability of Organisations Schedule (to the extent permitted by that Schedule) or any other Act".

55 Subsection 82(1)

After "Registrar" (second occurring), insert "under this Act or the Registration and Accountability of Organisations Schedule".

56 Paragraph 83BB(1)(i)

After "this Act", insert ", the Registration and Accountability of Organisations Schedule".

57 After subsection 88B(1)

Insert:

(1A): To the extent that the Commission is performing its functions under this Part in relation to matters arising under the Registration and Accountability of Organisations Schedule, the Commission must perform those functions in a way that furthers the objects of that Schedule.

58 Paragraph 89(b)

After "this", insert "Act, the Registration and Accountability of Organisations Schedule".

59 At the end of section 90

Add:

(2): To the extent that the Commission is performing its functions in relation to matters arising under the Registration and Accountability of Organisations Schedule, the Commission must take into account the public interest, and for that purpose must have regard to:

(a): the objects of that Schedule; and
(b): the state of the national economy and the likely effects on the national economy of any order that the Commission is considering, or is proposing to make, with special reference to likely effects on the level of employment and on inflation.

60 At the end of section 98A

Add "or the Registration and Accountability of Organisations Schedule".

61 At the end of subsection 99(1)

Add:

Note: Some industrial disputes (including demarcation disputes) are dealt with under the Registration and Accountability of Organisations Schedule.

62 At the end of subsection 100(1)

Add:

Note: A demarcation dispute that is not resolved by conciliation is dealt with under the Registration and Accountability of Organisations Schedule.

63 Subsection 103(2)

After "this Act", insert "or the Registration and Accountability of Organisations Schedule".

64 At the end of section 104

Add:

(6): In an arbitration proceeding under the Registration and Accountability of Organisations Schedule, unless all the parties agree, evidence must not be given, or statements made, that would disclose anything said or done in a conciliation proceeding under that Schedule (whether before a member of the Commission or at a conference arranged by a member of the Commission) in relation to matters in dispute that remain unsettled.

65 Subsection 108(2)

Omit "Subject to subsection (2A), the", substitute "The".

Note: This item removes an inoperative cross-reference.

66 Subsection 109(1)

After "Commission", insert "(whether under this Act or otherwise)".

67 Subsection 109(4)

Omit "Subsections", substitute "Subject to subsection (4A) of this section, subsections".

68 After subsection 109(4)

Insert:

(4A): Subsections 45A(4) to (8) (inclusive) apply in relation to a review under this section in relation to a matter arising under the Registration and Accountability of Organisations Schedule in the same manner as they apply in relation to an appeal under section 45A.

69 At the end of section 109

Add:

(8): Nothing in this section affects any right of appeal or any power of a Full Bench under section 45A, and an appeal under that section and a review under this section may, if the Full Bench considers appropriate, be dealt with together.

70 After subsection 110(2)

Insert:

(2A): If the hearing or determination concerns an industrial dispute or other proceeding arising under the Registration and Accountability of Organisations Schedule, the procedure of the Commission in the hearing or determination is, subject to this Act, the Registration and Accountability of Organisations Schedule and the Rules of the Commission, within the discretion of the Commission.

71 Before subsection 111(1)

Insert:

(1A): Subject to this Act, the Commission may do any of the things mentioned in subsection (1) in relation to an industrial dispute arising under this Act.
(1B): Subject to the Registration and Accountability of Organisations Schedule, the Commission may do any of the things mentioned in subsection (1) in relation to an industrial dispute arising under that Schedule.

72 Subsection 111(1)

Omit "Subject to this Act, the Commission may, in relation to an industrial dispute:", substitute "The Commission may:".

73 At the end of subsection 111(2)

Add "(whether under this Act, the Registration and Accountability of Organisations Schedule or otherwise)".

74 At the end of section 111

Add:

Note: Section 133 of the Registration and Accountability of Organisations Schedule gives the Commission particular powers in relation to representation rights of organisations of employees.

75 Section 118A

Repeal the section.

76 Subsection 119(1)

Omit "an industrial dispute", substitute "a matter".

77 Subsection 119(1)

Omit "the industrial dispute", substitute "the matter".

78 Subsection 119(2)

Omit "industrial dispute", substitute "matter".

79 Subsection 119(3)

Omit "industrial dispute" (wherever occurring), substitute "matter".

80 At the end of section 119

Add:

(6): In this section:

"matter" means:

(a): an industrial dispute arising under this Act; or
(b): a proceeding (including an industrial dispute) arising under the Registration and Accountability of Organisations Schedule.

81 At the end of subsection 134(2)

Add "or the Registration and Accountability of Organisations Schedule".

82 Subsection 134(3)

After "this Act", insert "or the Registration and Accountability of Organisations Schedule".

83 After section 170LK

Insert:

170LKA Certificate as to requested representation or
invitation

(1): If a Registrar is satisfied:

(a): on application by an organisation of employees, that an employee has made a request in accordance with subsection 170LK(4) for the organisation to represent the employee in meeting and conferring with an employer about a proposed agreement; or
(b): on application by an employer, that, after making such a request, the requirement in subsection 170LK(5) for the employer to give a reasonable opportunity to the organisation to meet and confer about the proposed agreement, has, because of subsection 170LK(6), ceased to apply to the employer;

the Registrar may issue a certificate to that effect.

(2): The certificate must not identify any of the employees concerned. However, it must identify the organisation, the employer and the proposed agreement.
(3): The certificate is, for all purposes of this Act, evidence that the employee or employees made the request or that the requirement has ceased to apply.

84 Subsection 170MR(5)

Omit "section 196", substitute "section 159 of the Registration and Accountability of Organisations Schedule".

85 Before subsection 174(1)

Insert:

(1A): This section does not apply to a demarcation dispute.

Note: The heading to section 174 is altered by inserting "(other than demarcation dispute)" after "dispute".

86 After section 174

Insert:

174A Reference of demarcation dispute to State authority for
determination

(1): The President may refer a demarcation dispute to a State authority to be investigated and dealt with under this Act:

(a): by conciliation; or
(b): by arbitration; or
(c): by conciliation and, if necessary, by arbitration.

(2): The President may revoke the reference at any time before a determination is made by the State authority in settlement of the demarcation dispute.
(3): In relation to the exercise of powers under subsection (1) or (2), the President may direct a member of the Commission to provide a report in relation to a specified matter.
(4): After making such investigation (if any) as is necessary, the member must provide the report to the President.
(5): For the purposes of investigating and dealing with the demarcation dispute, the State authority may exercise any powers of the Commission under this Act or the Registration and Accountability of Organisations Schedule that are exercisable by a Commissioner.
(6): A determination made by the State authority in settlement of the demarcation dispute:

(a): is taken for the purposes of this Act (other than section 109) and the Registration and Accountability of Organisations Schedule to be an order made under the Registration and Accountability of Organisations Schedule by a member of the Commission, but section 45A of this Act applies in relation to the determination as if paragraph 45A(7)(c) were omitted; and
(b): is taken, for the purposes of sections 152 and 153 of this Act, not to be an order, award, decision or determination of a State industrial authority.

(7): Section 149 applies in relation to a determination made by the State authority in settlement of the demarcation dispute as if a reference to the Commission were a reference to the State authority.
(8): Sections 299, 302, 303, 354 and 355 of this Act and sections 355 and 356 of the Registration and Accountability of Organisations Schedule apply in relation to the exercise of powers under this section by the State authority as if a reference to:

(a): a member of the Commission; or
(b): the Commission;

were a reference to the State authority, and as if the State authority exercised those powers as a member of the Commission.

(9): In exercising powers under this section, the State authority has the same protection and immunity as a member of the Commission has under section 41 in performing functions as a member of the Commission.
(10): In this section:

"State authority" means:

(a): a member of a State industrial authority nominated by the head of the State industrial authority; or
(b): if another office is prescribed in relation to the State industrial authority—the holder of the office.

87 Subsection 176(1)

After "Act", insert "or the Registration and Accountability of Organisations Schedule".

88 Subsection 178(1)

Omit "Subject to section 182, where", substitute "Where".

Note: This item removes an inoperative cross-reference.

89 Subsection 178(1)

After "Commission", insert "(whether under this Act, the Registration and Accountability of Organisations Schedule or otherwise)".

90 Paragraph 187(4)(a)

After "this Act", insert ", the Registration and Accountability of Organisations Schedule".

91 Part IX (heading)

Repeal the heading, substitute:

Part IX—Entry and inspections by organisations 92 Divisions 1A to 11 of Part IX

Repeal the Divisions.

93 Division 11A of Part IX (heading)

Repeal the heading.

94 Division 12 of Part IX

Repeal the Division.

95 Part X

Repeal the Part.

96 Subsection 298B(1) (at the end of the definition of industrial
body)

Add:

; or (c) a court or commission, however designated, exercising under an industrial law powers and functions corresponding to those conferred on the Commission by the Registration and Accountability of Organisations Schedule. 97 Subsection 298B(1) (definition of industrial law)

After "this Act", insert ", the Registration and Accountability of Organisations Schedule".

98 At the end of subsection 298F(1)

Add:

(d): any other activity for which the Registration and Accountability of Organisations Schedule provides.

Note: The heading to section 298F is replaced by the heading "Matters arising under this Act or the Registration and Accountability of Organisations Schedule".

99 Sections 310, 313, 314, 315 and 316

Repeal the sections.

100 Subsection 317(5) (definition of ballot)

Repeal the definition, substitute:

"ballot" means a ballot ordered under section 135 or 136.

101 Sections 318, 319, 321, 322, 323, 324, 325, 326, 327, 328,
329, 330, 331, 332, 333, 337 and 340

Repeal the sections.

102 Heading to Part XII

Repeal the heading, substitute:

Part XII—Costs 103 Division 1 of Part XII

Repeal the Division.

104 Paragraph 359(2)(e)

Repeal the paragraph.

105 Subsection 414(2)

Repeal the subsection.

106 Subsection 415(1)

Repeal the subsection, substitute.

(1): The jurisdiction of the Court under this Act is to be exercised by a Full Court in relation to matters in which a writ of mandamus or prohibition or an injunction is sought against:

(a): a Presidential member; or
(b): officers of the Commonwealth at least one of whom is a Presidential member.

107 Section 421

Repeal the section.

108 Subsection 469(1)

After "Act", insert "or the Registration and Accountability of Organisations Schedule".

109 After subsection 469(2)

Insert:

(2A): Subject to this Act, the Registration and Accountability of Organisations Schedule and any other Act, a party to a proceeding before the Court in a matter arising under the Registration and Accountability of Organisations Schedule may be represented only as provided by this section.

110 At the end of paragraph 469(8)(b)

Add "or the Registration and Accountability of Organisations Schedule".

111 Section 470

After "Act", insert "or the Registration and Accountability of Organisations Schedule".

112 At the end of subsection 471(1)

Add "or the Registration and Accountability of Organisations Schedule".

113 Schedules 3 and 4

Repeal the Schedules.

Part 2—Transitional and saving provisions 114 Transitional and saving provisions

(1) An application made under section 291A of the Workplace Relations Act 1996 but not determined before the commencement of this item is taken to have been made under section 170LKA of that Act as in force after that commencement.
(2) A certificate in force under section 291A of the Workplace Relations Act 1996 as in force immediately before the commencement of this item continues in force on and after that commencement as if it had been issued under section 170LKA of that Act as in force after that commencement.

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