Schedule 1B has
effect.
2 After Schedule 1A
This Chapter sets out the objects of the
Schedule and contains other provisions that are relevant to the Schedule as a
whole.
It includes definitions of terms that are used throughout the
Schedule. However, not all definitions are in this Chapter. Definitions of
terms that are used only in a particular area of the Schedule, or only in one
section of the Schedule, are generally defined in that area or section.
The principal objects of this Schedule are to:
(1) This Schedule binds the Crown in each of its capacities.
(2) However, this Schedule does not make the Crown liable to be prosecuted for
an offence.
In this Schedule, unless the contrary intention appears:
AEC means the
Australian Electoral Commission.
- Note: Section 11 is also relevant to this definition.
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 Schedule 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 Schedule.
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 section 190.
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 Schedule.
- Note: Organisations registered under the Workplace Relations Act immediately
before this Schedule commenced are taken to be registered under this Schedule
(see the Workplace Relations Legislation Amendment (Registration and
Accountability of Organisations) (Consequential Provisions) Act 2002 ).
postal ballot means a ballot for the purposes of which:
- (a)
- a ballot paper, a declaration envelope, and another envelope in the form
prescribed by the regulations, 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 Schedule includes regulations made under this Schedule.
Workplace Relations Act means the Workplace Relations Act 1996 and
regulations made under section 359 of that Act but does not include this
Schedule or regulations made under section 359 of this Schedule.
In this Schedule, a reference to a provision is a reference to a provision of
this Schedule, unless the contrary intention appears.
(1) In this Schedule, 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 Schedule:
- (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 Schedule, 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 Schedule—extension to industrial issues
(2)
Without affecting its operation apart from this section, this Schedule 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 Schedule—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 Schedule
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 Schedule, 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 Schedule, a reference to an office in an association or
organisation includes a reference to an office in a branch of the association
or organisation.
10 Forging and uttering
Forging
(1) For the purposes of
this Schedule, 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 Schedule, 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 Schedule, 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 Schedule, 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 Schedule, 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 Schedule, 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 Schedule.
- Note: Other functions of the Industrial Registry are set out in
section 63 of the Workplace Relations Act.
(2) Subject to this Schedule, 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
Schedule.
(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 Schedule 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 Schedule 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
Schedule. - Note 1: Section 6 of this Schedule defines this Schedule to
include the regulations.
Note 2: For the purposes of this Schedule (and the regulations), corporate
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
Schedule (other than a section that is divided into subsections); or
- (b)
- at the foot of a subsection of this Schedule;
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.
Part 1—Simplified outline of Chapter 17 Simplified outline
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).
Part 2—Registration
Division 1—Types of associations that may apply for registration
(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 subsection (3); 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 subsection (3); 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.
(3) The persons specified for the purpose of subparagraphs (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.
19 Criteria for registration of associations other than enterprise
associations
(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 Schedule and
the Workplace Relations Act; and
- (f)
- the rules of the association make provision as required by this Schedule
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 Schedule 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 Schedule 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 Schedule and
the Workplace Relations Act; and
- (e)
- the rules of the association make provision as required by this Schedule
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 Schedule and section 3 of the Workplace Relations
Act.
(1A) For the purposes of paragraph (1)(b), if a person or body has an
interest in the enterprise in question, the Commission may decide that,
despite the interest, the association is free from control by, or improper
influence from, the person or body.
- Note: The Commission could conclude that
the association was free from control etc. by the person if, for example, the
nature of the person's interest was not such as to give the person a major say
in the conduct of the enterprise or if the person did not have a significant
management role in the association.
(1B) For the purposes of paragraph (1)(b), if an employer meets or will
meet costs and expenses of the association, or provides or will provide
services to the association, this assistance must be taken into account when
considering whether the association is free from control by, or improper
influence from the employer.
(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.
Division 3—Prohibited
conduct in relation to formation or registration of employee associations
(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 Schedule 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 Schedule 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.
24 Certain actions considered to be done by organisation or employer
(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 Schedule; 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
Schedule, its rules must not be contrary to the Workplace Relations Act (see
paragraph 142(a) of this Schedule).
(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 Schedule 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 Schedule 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 Legislation Amendment
(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.
Part 3—Cancellation of registration
(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 Schedule 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 Schedule 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
Schedule, the Workplace Relations Act or any other Act, under awards or orders
made under this Schedule, the Workplace Relations 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 Schedule 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 Schedule
has the following consequences: - (a)
- the organisation ceases to be an
organisation and a body corporate under this Schedule, 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.
Part 4—Commission's powers under this Chapter
The powers of the Commission under this Chapter are exercisable only by a
Presidential Member.
Part 1—Simplified outline of Chapter 34
Simplified outline
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 Schedule 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.
38 Federations 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
Schedule 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
Schedule 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.
43 Community of
interest declaration 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.
44 Application for approval for submission of amalgamation to ballot
(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.
55 Approval for submission to ballot of amalgamation not involving
extension of eligibility rules etc. 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 Schedule, 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 Schedule 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.
56 Objections in relation
to amalgamation involving extension of eligibility rules etc.
(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.
57 Approval for submission to ballot of amalgamation involving
extension of eligibility rules etc.
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 Schedule, 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.
60 "Yes" case and "no" case for amalgamation
"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 Schedule.
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.
61 Alteration and amendment of scheme
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 Schedule.
(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.
65 Secret postal ballot of members
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 Schedule.
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 as follows:
- (a)
- the ballot paper must be in the declaration envelope
provided to the voter with the ballot paper;
- (b)
- the declaration envelope must be in another envelope that is in the form
prescribed by the regulations.
(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.
72 Offences in relation to ballot 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 Schedule, 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 Schedule, 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.
74 Assets and liabilities of de-registered organisation become assets and
liabilities of amalgamated organisation
(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.
80 Division applies despite laws and agreements prohibiting transfer etc.
(1) This Division applies, and must be given effect to, despite anything in:
- (a)
- the Workplace Relations Act or 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.
81
Amalgamated organisation to take steps necessary to carry out amalgamation
(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 Schedule, the Workplace Relations 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.
91 Federal Court may
make orders in relation to consequences of invalidity
(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 Schedule 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.
Division 2—Ballots for withdrawal from amalgamated organisations
(1) An application may be made to the Federal Court for a secret postal 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 after 31 December 1996; and
- (c)
- the application is made at least 2 years, but 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 Schedule.
(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 Schedule.
98 Provisions relating to outlines and statements of "yes" and
"no" cases
(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 postal 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)
- the declaration envelope and other envelope required for the purposes of
the postal ballot.
(3) In a ballot conducted under this section, each completed ballot paper must
be returned to the AEC as follows:
- (a)
- the ballot paper must be in the
declaration envelope provided to the voter with the ballot paper;
- (b)
- the declaration envelope must be in another envelope that is in the form
prescribed by the regulations.
(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).
105 Offences in relation to ballots
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.
111 Choice of organisation following withdrawal of separately identifiable
constituent part
(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.
112 Members of amalgamated organisation may join newly registered
organisation
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.
117 Division applies despite laws and agreements prohibiting transfer etc.
(1) This Division applies, and must be given effect to, despite anything in:
- (a)
- the Workplace Relations Act or 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.
118 Amalgamated organisation, constituent part and newly registered
organisation to take necessary steps
(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).
129 Federal Court may make orders in relation to consequences of invalidity
(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).
130 Certain
actions etc. not to constitute breach of rules of amalgamated organisation
(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.
Part 1—Simplified outline 132 Simplified outline
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).
Part 2—Representation orders
133 Orders
about representation rights of organisations of employees
(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 Schedule 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 Schedule 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 Schedule 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
Schedule 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.
Part 1—Simplified outline of Chapter
139 Simplified outline
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
Schedule.
(2) A rule of an organisation making provision required by this Schedule 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 Schedule, 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 Schedule and the Workplace Relations Act and the purposes
of the registration of organisations under this Schedule, 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.
144 Rules to provide for elections for office by secret
postal ballot
(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 Schedule (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 Schedule (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.
Division 3—Rules relating to conduct of officers and employees
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.
149 Rules to provide conditions for loans, grants and donations by
organisations
(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 Schedule nor part of an organisation registered under this Schedule;
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 Schedule 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
Schedule, 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 Schedule, 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 Schedule 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.
153 Party to section 152 agreement may apply to Federal Court for orders
(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 Schedule, 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 Schedule.
(2) Alterations determined under subsection (1) take effect on the date
of the instrument.
157 Commission may determine alteration of rules where
there has been a breach of an undertaking
(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.
158 Change of name or alteration of eligibility rules of
organisation
(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 Schedule 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
Schedule 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 Division 4 of Part 7 of Chapter 11; 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 Schedule, 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 Division 4 of Part 7 of Chapter 11; 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 Schedule, 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 Schedule 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.
Part 3—Validity and performance of rules etc
163 Rules contravening section 142
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.
164 Directions for performance of rules
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.
Definition
(9) In this section:
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.
164A Directions to rectify breach of rule of organisation
Application for
order
(1) A member of an organisation may apply to the Federal Court for an
order under subsection 4 in relation to the organisation.
(2) Before making the order, the Court must give any person against whom the
order is sought an opportunity of being heard .
Conditions for making order
(3) The Court may make an order under subsection (4) in relation to an
organisation if the Court is satisfied that:
- (a)
- a person was under an
obligation to perform or observe a rule or rules of the organisation; and
- (b)
- the person breached the rule or rules; and
- (c)
- the person acted unreasonably in so breaching the rule or rules.
Nature of order
(4) Subject to section 164B, the Court may make an order
directing one or more persons (who may be, or include, the person who breached
the rule or rules) to do specified things that will, in the opinion of the
Court, as far as is reasonably practicable, place the organisation in the
position in which it would have been if the breach of the rule or rules had
not occurred.
(5) The Court may make the order whether or not, at the time of making the
order, the person is a member or officer of the organisation.
164B Orders
under sections 164 and 164A
Order must not invalidate election etc.
(1)
An order must not be made under section 164 or 164A 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.
Order must not require compensation
(2) An order under section 164A does not include an order directing one
or more persons to compensate an organisation for any loss or damage suffered
by the organisation caused by the breach of the rule or rules.
- Note: An
application for a compensation order may be made under Part 2 of
Chapter 10 of this Schedule.
Court may declare that rules contravene section 142
(3) Where the Court,
in considering an application under section 164 or 164A, 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.
(4) Section 163 (other than subsections (1) to (5) (inclusive))
applies in relation to an order made under subsection (3) of this section
as if the order had been made under section 163.
Definition
(5) In this
section:
election includes a purported election that is a nullity.
Part 1—Simplified outline of Chapter 165 Simplified outline
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.
Part 2—Entitlement to
membership
166 Entitlement to become and to remain a member
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.
167 Federal Court may declare on person's entitlement to membership
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.
168 Application for membership of organisation by person treated as having
been a member
(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 Schedule or the
Workplace Relations Act, order such rectifications of the register of members
of an organisation as it considers necessary.
Part 3—Termination of
membership
171 Federal Court may order that persons cease to be members of
organisations
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).
Part 4—False information, disputes and arrears of dues
A person must not, in an application made under this Schedule 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.
Part 5—Conscientious objection to membership
(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.
Part 1—Simplified outline of Chapter 181 Simplified outline
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.
Part 2—Conduct of elections for office and other
positions
182 Conduct by AEC
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.
183 Application for organisation or branch to conduct
its elections for office
(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.
186 Registrar may permit organisation or
branch to conduct its elections for office
(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 Schedule 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 Schedule; 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.
187 Organisation may ask AEC to conduct elections for positions other than
offices
(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 the ballot paper on
which it is recorded is returned as follows:
- (a)
- the ballot paper must be in
the declaration envelope provided to the voter with the ballot paper;
- (b)
- the declaration envelope must be in another envelope that is in the form
prescribed by the regulations.
(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.
190 Organisation or branch must not assist one candidate over another
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.
191 Organisation to provide returning officer with copy of
register
(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; or
- (iii)
- to ensure the security of ballot papers and envelopes that are for use,
or used, in the election.
(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.
197 Post-election report by AEC
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).
198 Organisation to respond to adverse report on rules
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 .
Part 3—Inquiries into elections for office
200 Application for
inquiry
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.
202 Federal Court may authorise Industrial Registrar to take certain action
(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.
203 Designated Registry officials must have identity cards
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 Schedule 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.
207 Industrial Registrar to make arrangements for conduct
of elections etc.
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.
210 Simplified outline
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).
Division 2—Persons who have been
convicted of a prescribed offence
211 Simplified outline of Division
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.
215
Certain persons disqualified from holding office in organisations
(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.
216 Application for leave to hold office in
organisations by prospective candidate for office
(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.
217 Application for leave to hold office in
organisations by office holder
(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).
Part 1—Simplified outline of Chapter
229 Simplified outline
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.
Part 2—Records to be kept and lodged by
organisations
(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 Schedule (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.
236 Registrar may direct organisation to deliver copy of records
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.
237 Organisations to notify particulars of loans, grants and
donations
(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.
238 Simplified outline
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.
239 Part
only applies to financial years starting after registration
This Part does not apply, in relation to an association that becomes
registered as an organisation under this Schedule, 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.
243 Designated officers
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 Schedule, 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.
247 Determination of reporting units—Industrial Registrar initiative
(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 Schedule, 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).
251
Determination of reporting units—later certificate revokes earlier
certificate
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 Schedule 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 Schedule 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 Schedule 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.
261 Auditors and other persons to enjoy qualified privilege in certain
circumstances
(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 Schedule 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).
265 Copies of full report or concise report to be provided to members
(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).
Division 6—Reduced reporting requirements for particular reporting
units
269 Reporting units with substantial common membership with State
registered bodies
(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).
277 Reporting unit or committee of management may allow member to inspect
books
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.
278 Commission to be advised of
breaches of Part or rules etc. found during inspection
(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.
Part 4—Access to organisations' books
280
Right of access to organisation's books
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.
Part 1—Simplified outline of Chapter 281 Simplified outline
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 Schedule 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 2—General duties in relation to the financial management of
organisations
282 Simplified outline
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.
Division 2—General duties in relation to the financial management of
organisations
(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 Schedule 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 Schedule 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 Schedule 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.
Part 1—Simplified outline of Chapter 304 Simplified outline
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.
Part 2—Civil consequences of
contravening civil penalty provisions
(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);
- (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.
307 Compensation orders
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.
310 Who may apply for an order
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.
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.
314 Evidence given in
proceedings for penalty not admissible in criminal proceedings
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.
315 Relief from liability for contravention of civil penalty provision
(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.
Part 1—Simplified outline of Chapter
317 Simplified outline
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 Schedule, 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 Schedule.
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).
Part 7 deals with
complementary registration systems.
Part 2—Validating provisions
for organisations
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.
319 Validation of certain acts done in good faith
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.
322 Federal Court may make orders in relation to consequences of invalidity
(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, 164 or 164A, 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, 164 or 164A 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, 164 or 164A;
- (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 Schedule 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.
Part 4—Inquiries and investigations
(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).
Part 5—Jurisdiction of the Federal Court of Australia
(1) The Federal Court has jurisdiction with respect to matters arising under
this Schedule in relation to which: - (a)
- applications may be made to it under
this Schedule; or
- (b)
- actions may be brought in it under this Schedule; or
- (c)
- questions may be referred to it under this Schedule or the Workplace
Relations Act ; or
- (d)
- penalties may be sued for and recovered under this Schedule; or
- (e)
- prosecutions may be instituted for offences against this Schedule.
(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 Schedule.
- 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 Schedule, 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, 164A, 164B 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 Schedule 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 Schedule, 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.
Part 6—Other
343 Delegation by Minister
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 Schedule.
(1) Where it is necessary to establish, for the purposes of this Schedule, 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 Schedule, 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 Schedule defines this Schedule 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.
346 Requests by members for
information concerning elections and certain ballots
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.
347 Providing copy of rules or list of offices etc. on request by member
(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 Schedule.
(1) For the purposes of this Schedule, 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 Schedule, the Workplace
Relations Act or any other law, the employer of an employee engaged in public
sector employment must, for the purposes of this Schedule 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 Schedule, 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 Schedule 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 Schedule (other than a
penalty for an offence) may order that the penalty, or a part of the penalty,
be paid to: - (a)
- the Commonwealth; or
- (b)
- an organisation; or
- (c)
- another person.
(1) Where a court has: - (a)
- imposed a monetary penalty under this Schedule
(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.
359 Regulations
General power
(1) The
Governor-General may make regulations prescribing all matters:
- (a)
- required
or permitted by this Schedule to be prescribed; or
- (b)
- necessary or convenient to be prescribed for carrying out or giving effect
to this Schedule.
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 Schedule may be made and
dealt with; and
- (b)
- the fees to be charged in relation to proceedings under this Schedule; 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 Schedule, 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 Schedule. 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 this Part to amalgamate with
an associated body as defined by this Part 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 this Part;
then, in addition to the other provisions of this Schedule, this Part applies
to the organisation but so applies only in relation to the branch or branches
referred to in paragraph (c).
(1) In this Part, 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
subsection (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 section or any provision of this section 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 Schedule and the
Workplace Relations Act and its participation in any State workplace
relations system.
363 Obligations of Commission in relation to application
under section 158
(1) Subsections (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 Schedule 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 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 Division.
(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 subsection
362(3), with Division 3 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
section 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 section 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 Schedule 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 subsection (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 Part are exercisable only by a
Presidential Member.
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Commonwealth Numbered Acts