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1
Industrial Organisations
INDUSTRIAL ORGANISATIONS BILL
1996
EXPLANATORY NOTES
Objectives of the Legislation
The principal objectives of the Bill are to--
· encourage the democratic control of industrial organisations;
· encourage members of industrial organisations to participate in
their organisation's affairs;
· encourage the efficient management of industrial organisations;
· ensure freedom of association, including the rights of employees
and employers to join an industrial organisation or association, or
not join an organisation or association;
· ensure employee and employer organisations are representative
of and accountable to their members; and
· establish consistency with certain provisions of the
Commonwealth Workplace Relations Act 1996.
Reasons for the Legislation
This Bill and the Workplace Relations Bill 1996 provide a new
framework for the industrial relations system in Queensland.
The Industrial Organisations Bill concerns arrangements relating to
employee and employer industrial organisations and associations.
The Bill contains recast provisions of the Industrial Relations Act 1990
and amendments to complement the recently amended Commonwealth
industrial legislation.
The Bill ensures that all industrial organisations are made more
accountable. This includes the strengthening of financial and other reporting
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Industrial Organisations
requirements to their members. Certain amendments are based on the
recommendations of the Commission of Inquiry into the Activities of
Particular Trade Unions (Cooke Inquiry).
This Bill, together with the Workplace Relations Bill 1996, contain
legislative reforms to support a co-operative relationship between employers
and employees.
Key reforms include--
· freedom of association which ensures employers, employees and
independent contractors are free to join or not join an industrial
association or industrial organisation;
· enabling deregistered parts of amalgamated organisations to
withdraw from those amalgamations and reducing the minimum
membership requirement;
· the establishment of enterprise organisations for employees;
· restricting the "conveniently belong rule" as it applies to industrial
organisations and ensuring the rule will not apply to enterprise
organisations;
· minimum standards for the conduct of elections;
· ensuring industrial organisations are more accountable by the
strengthening their financial and other reporting requirements to
members and the supervisory responsibilities of the industrial
court, industrial relations commission and industrial registrar.
· transparency and accountability of political donations; and
· the expiry of the Industrial Relations (Protection from
Invalidities) Act 1991.
Other provisions of Part 14 (Industrial Organisations) of the Industrial
Relations Act 1990 have been written in modern drafting format. Existing
offence provisions have generally been transferred to the corresponding
individual provision.
Cost for Government Implementation
The costs for the conduct of elections for officers of industrial
organisations and ballots for amalgamations of organisations and
withdrawals from amalgamations are to be borne by the organisation
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Industrial Organisations
concerned in most instances. At present the costs are carried by the
Government.
In overall terms, there will be no increase in costs for Government
arising from this legislation.
Consultation
Extensive consultation has taken place with key stakeholders including all
major employer and employee organisations in the preparation of the Bill.
Fundamental Legislative Principles
The following provisions of the Bill involve relevant principles--
Clause 81 (Entitlement to membership)
Paragraph (c) requires that a person not be of general bad character. This
provision is in the Industrial Relations Act 1990 and is considered to be a
reasonable requirement for membership of an industrial organisation.
Clause 208 (Auditors have qualified privilege)
This section confers immunity from civil and criminal proceedings
relating to defamation on an organisation's auditors similar to in the position
of company auditors (see s 863 Corporations Law).
Clause 247 (Proof not required of the reason for, or the intention of,
conduct-Cwlth s298V)
This section reverses the onus of proof. It is necessary to ensure that the
freedom of association provisions mirror Commonwealth provisions.
Clause 277 (Recovering member's liabilities to organisation)
This section removes an organisation's right to recover some member's
liabilities. This provision is fair to both members and the organisation.
Clause 282 (No action for defamation in certain cases)
This section confers immunity from civil and criminal proceedings. It is
required to protect electoral officials and returning officers. This is justified
because electoral officials and returning officers have no control over the
material that will be published by them during the course of an election.
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Industrial Organisations
PART 1--PRELIMINARY
Short title
Clause 1 provides a short title for the legislation.
Commencement
Clause 2 provides for the provisions of the legislation to commence on a
date to be proclaimed.
The prescriptions relating to political objects funds (Part 12, Division 8)
are to commence 6 months from the date of the initial proclamation.
Objects of the Act
Clause 3 sets out the objects of the legislation.
The objects clause reflects the intent of the legislation which surrounds
the affairs and management of industrial organisations.
The objects complement those provided in commonwealth industrial
legislation.
Definitions--the dictionary
Clause 4 establishes a dictionary in schedule 3 of the Bill which defines
various terms for the purposes of the legislation.
Some provisions in the Bill have the meanings of terms defined
specifically in those provisions and not in the dictionary. In many cases
such terms are signposted in the dictionary.
Act does not bind State
Clause 5 confirms that this legislation does not bind the State with the
exception of clause 91 (Conduct about exemption certificate holders) and
Part 14 (Freedom of association).
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Industrial Organisations
PART 2--REGISTRATION
Definitions for pt 2
Clause 6 prescribes definitions of "enterprise" and "enterprise
association" to accord with the allowing of enterprise associations to be
registered as industrial organisations under this part.
An enterprise is restricted to being a business carried on by a single
employer. A functionally distinct part or parts of such a business also may
constitute an enterprise.
Applying for registration--general
Clause 7 specifies where an application for registration as an employer or
an employee organisation must be made, in what form and if it must be
published.
Applying for registration--employer associations
Clause 8 states the associations that may apply for registration as an
industrial organisation of employers which include associations--
· whose members are all employers
· whose members are not all employers but effectively represent
employer members
· whose members who are not employers are officers of the
association, persons carrying on business otherwise than as
employees or persons who were employers when admitted to
membership.
The provision sets out the details to be included with the application.
Requirements include details of members, officers, rules, the resolution in
favour of registration, relevant callings, the association's property and
registered office and the fee.
Applying for registration--employee associations
Clause 9 specifies the associations that may apply for registration as an
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Industrial Organisations
industrial organisation of employees which include associations--
· whose members are employees
· whose members include certain independent contractors or
officers of the association
· whose members perform work in the same enterprise.
The provision sets out the details to be included with the application.
Requirements include details of members, officers, rules, the resolution in
favour of registration, relevant callings and registered office and the fee.
Registration criteria--employer associations
Clause 10 specifies what must be met by an industrial association of
employers before it can be registered as an industrial organisation--
· the association exists to further or protect its members' interests
· employer members in total must have employed an average of at
least 20 employees each month in the 6 months immediately
preceding the application (unless there are special circumstances)
· the association would conduct its affairs in compliance with the
Act (the industrial relations commission will take into account any
recent conduct by the association or its members)
· rules of the association comply with the Act
· the name of the association will not cause confusion
· registration would further the objects of the Act.
Registration criteria--employee associations other than enterprise
associations
Clause 11 specifies that the following must be met by an industrial
association of employees (excluding an enterprise association) before it can
be registered as an industrial organisation--
· the association exists to further or protect its members' interests
· the association is not influenced by an employer or an employer
group
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Industrial Organisations
· at least 20 members are employees (unless there are special
circumstances)
· the association would conduct its affairs in compliance with the
Act (the industrial relations commission will take into account any
recent conduct by the association or its members)
· rules of the association comply with the Act
· the name of the association will not cause confusion
· registration would further the objects of the Act
· there is no organisation to which members might belong or could
more conveniently belong and would effectively provide
representation, except where the commission approves an
undertaking to avoid demarcation disputes.
Registration criteria--enterprise associations
Clause 12 specifies that the following must be met by an enterprise
association before it can be registered as an industrial organisation--
· the association is a genuine enterprise association
· the association exists to further or protect its members' interests
· the association is not influenced by an employer, person or body
with an interest in the enterprise or an employer or employee
group
· at least 20 members are employees
· the association would conduct its affairs in compliance with the
Act (the industrial relations commission will take into account any
recent conduct by the association or its members)
· rules of the association comply with the Act
· the name of the association will not cause confusion
· the commission is satisfied that majority support of members
exists
· a supporting resolution has been passed by a majority of
members at a general meeting or an absolute majority of the
management committee
· registration would further the objects of the Act.
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Industrial Organisations
Approving and registering rules--Cwlth s 205
Clause 13 establishes the function of the industrial relations commission
to approve the rules of an association seeking registration as an industrial
organisation.
Continued registration of small organisations
Clause 14 provides the industrial relations commission's power to
continue the registration of small employer and employee organisations
where special circumstances exist.
The minimum membership numbers to accord with clauses 10, 11 and
12.
Registering several organisations for the same calling
Clause 15 allows 2 or more associations for a calling to be granted joint
registration as an industrial organisation.
Change of callings
Clause 16 provides that an industrial organisation may apply to the
industrial relations commission to amend its registered callings.
Deciding application
Clause 17 sets out provisions regarding opposition to an application for
registration as an industrial organisation, the granting of an application for
registration as an organisation and the issue of a certificate of registration as
an organisation.
Organisations corporate bodies
Clause 18 confers corporate status on an industrial organisation.
Registered name of organisation
Clause 19 provides words that must be included in the registered names
of industrial organisations. This provision aligns with contemporary usage.
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Industrial Organisations
Registered office of organisation
Clause 20 provides that an industrial organisation must have a registered
office and the notification of same must be given to the industrial registrar
who is to record it.
PART 3--ORGANISATIONS' RULES
Division 1--General
Requirement for rules
Clause 21 requires that industrial organisations must have rules about the
matters prescribed in the legislation.
General requirements for rules
Clause 22 specifies the general requirements as to rules of industrial
organisations, and provides that rules--
· must not fail to comply with the Act, its objects, law or other
nominated instruments
· must not prevent members from observing the law or provisions
of nominated instruments or other decisions of the industrial court
or industrial relations commission
· must not prevent members from entering into written agreements
under nominated instruments or other decisions of the court or
commission
· must not impose oppressive, unreasonable or unjust conditions
on members or applicants for membership, having regard to the
objects of the Act and the organisation's registration.
Content of rules
Clause 23 specifies what must and may be contained in the rules of
industrial organisations.
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Industrial Organisations
Mandatory new requirements have been incorporated relating to
eligibility of full-time officers and full-time employees for election to an
office, the composition of management committees and the holding of an
annual general meeting.
Rules to give conditions for loans, grants and donations
Clause 24 specifies conditions to be included in rules under which
industrial organisations may make loans, grants or donations.
Division 2--Election rules
Subdivision 1--General
Rules for elections and ballots
Clause 25 specifies provisions which must be included in rules
concerning the election of officers of industrial organisations, including
giving each candidate equal opportunity to express their views in a statement
to members.
Elections must be by either a direct voting system or a collegiate electoral
system. Definitions of these systems are provided.
Rules for elections by secret postal ballot
Clause 26 provides that ballots for elections are to be by secret postal
ballot where an industrial organisation's rules provide for a direct voting
system.
The industrial registrar may grant an exemption from the postal
requirement.
Rules about office terms
Clause 27 requires the rules of an industrial organisation to provide for
terms of office no longer than four years without re-election. The term may
be extended as prescribed for 1 year.
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Industrial Organisations
Rules may allow filling casual vacancies
Clause 28 allows the rules of industrial organisations, under specified
arrangements, to provide for the filling of casual vacancies.
Subdivision 2--Model election rules
Minister may make model election rules
Clause 29 gives power to the Minister to make model election rules for
industrial organisations which become subordinate legislation.
Organisations may adopt model election rules
Clause 30 allows an industrial organisation to adopt all or part of the
model election rules by resolution.
Adoption of entire model election rules without change
Clause 31 allows the industrial organisation's secretary to give the
industrial registrar notice of the resolution adopting the model election rules
without change.
The registrar must amend the organisation's rules accordingly.
Adoption of model election rules with change
Clause 32 provides for an industrial organisation to amend its rules and
file a copy of the amended election rules with the industrial registrar within
1 year of publication of the model election rules in the Government Gazette.
Safeguards are provided should these requirements not be carried out by
the organisation.
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Industrial Organisations
Division 3--Exemption from elections for organisations with
counterpart federal bodies
What is a counterpart federal body
Clause 33 defines the term "counterpart federal body".
Exemption if federal election held
Clause 34 permits an industrial organisation whose counterpart federal
body has conducted an election and whose rules provide for corresponding
offices in the counterpart federal body to apply to the industrial relations
commission for an exemption from holding an election.
Provision is made for a member of the organisation to be able to object to
the exemption on the grounds that the exemption would detrimentally effect
the objector's interests.
The commission can only grant an exemption under the terms which are
provided. The exemption results in the person elected under the federal
election being taken to have been elected and the organisations rules for
election being taken to have been complied with.
Change in federal election result
Clause 35 provides that an industrial organisation to which an exemption
from holding an election has been granted must give notice to the industrial
relations commission where an order is made under the Commonwealth
Act changing the election result. After giving the member who held the
office and the organisation the opportunity to be heard, the commission is
empowered to make an order it considers appropriate and may cancel or
amend the exemption, give another exemption or validate a contravention of
the organisation's election rules.
Division 4--Changing name or eligibility rules
Application of div 4
Clause 36 specifies the changes to an industrial organisation's name or
eligibility rules to which the division applies.
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Industrial Organisations
Commission's consent needed for change or amendment
Clause 37 provides that any change to an industrial organisation's name
or eligibility rules must be with the consent of the industrial relations
commission and sets out related criteria. The provision empowers the
commission to refuse to consent to an amendment of eligibility rules on
certain grounds. These grounds, however, are not limited.
The commission may not consent to an amendment if it considers there
is another organisation to which members might more conveniently belong
and would effectively provide representation, except where the commission
approves an undertaking to avoid demarcation disputes.
New name must be different from other organisations
Clause 38 states an industrial organisation may change its name if the
name is not the same as nor similar to the name of another organisation.
When name change or rule amendment takes effect
Clause 39 provides that any change takes effect either on a specified day
or the day of the consent of the change.
Division 5--Amending rules
Approval of rule amendments--Cwlth s 205
Clause 40 establishes the function of the industrial registrar to approve
certain proposed alterations to the rules of industrial organisations.
Exceptions relate to amendments adopting model election rules without
change and orders, directions or decisions by the industrial court, industrial
relations commission or registrar.
Registrar may amend rules--Cwlth s 203
Clause 41 provides that the industrial registrar may amend the rules of an
industrial organisation where it is considered the rules do not make
provision required by the Act. The amendment is to be by way of
instrument which becomes effective when made.
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Industrial Organisations
Commission may amend rules if undertaking breached--Cwlth
s 203A
Clause 42 provides that where certain undertakings have been given
under clauses 11 (4) or 37(7) to avoid demarcation issues with another
registered organisation and those undertakings are breached, the industrial
relations commission may amend the rules of the organisation to remove
any overlap between that organisation's eligibility rules and the eligibility
rules of the other organisation.
The commission must give the organisations concerned an opportunity to
be heard.
The amendment is to be by way of instrument which becomes effective
when made.
Some amendments to be recorded
Clause 43 sets out the manner in which changes of name and alterations
of eligibility rules of industrial organisations are to be recorded by the
industrial registrar.
PART 4--VALIDITY AND COMPLIANCE OF RULES
Rules contravening s 22
Clause 44 establishes that application may be made to the industrial court
for an order (including an interim order) declaring that an industrial
organisation's rules contravene the requirements of the Act, rendering them
void.
Directions to perform rules
Clause 45 establishes that application may be made to the industrial court
for an order directing the performance or observance of the rules of an
industrial organisation. Penalty provisions are included.
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Industrial Organisations
Financial help for application under this part
Clause 46 provides that the Minister has discretion to grant financial
assistance to members of industrial organisations taking proceedings for the
disallowance or amendment of, or a direction for the performance of rules.
If financial assistance is granted the industrial registrar is to decide the
amount to be paid to the applicant.
PART 5--CONDUCTING ELECTIONS
Electoral commission to conduct elections
Clause 47 specifies that elections for an office in an industrial
organisation are to be conducted by the electoral commission, except where
an exemption is granted by the industrial relations commission under clause
50 or 34 (federal election held).
Application for exemption from s 47
Clause 48 provides for the manner in which an industrial organisation
may apply to conduct its elections and the procedures associated therewith.
The clause provides that--
· a committee of management of the organisation or branch may
file an application with the industrial registrar for exemption from
having elections conducted by the electoral commission
· the committee of management of the organisation or branch
making application for exemption must have passed a resolution
to make the application and have notified the members of the
resolution
· the application must be accompanied by an affidavit to the effect
that there has been compliance with the resolution requirements.
Objections to application for exemption
Clause 49 specifies that a member of an industrial organisation or branch
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Industrial Organisations
may object to an application made under clause 48 and provides that the
industrial relations commission is to hear any objections made.
Commission may give exemption from s 47
Clause 50 allows the industrial relations commission to permit an
industrial organisation or branch to have an election conducted other than by
the electoral commission subject to the commission being satisfied that
specified requirements are met.
The commission retains a power to revoke such permission on
application by a committee of management of an organisation or if not
satisfied that prescribed requirements have been met or the organisation or
branch contravened certain provisions of the Act.
Duties of organisation or branch if exemption given
Clause 51 requires that an industrial organisation or branch which has
been exempted from clause 47 for elections in the organisation or branch or
for a particular office must appoint a returning officer, who is not an
employee, member or officer of the organisation.
The industrial registrar's written approval of the returning officer's
appointment must be obtained.
Election result report
Clause 52 introduces the requirement that a written election result report
containing prescribed particulars must be given to the industrial registrar by
the electoral commission or the returning officer as the case may be.
Registrar to arrange for elections
Clause 53 requires that an industrial organisation (other than one
exempted under clause 50) file with the industrial registrar prescribed
information in relation to an election.
If the prescribed information is filed and the registrar is satisfied that an
election is required to be held under the rules of the organisation, the
registrar must arrange for the conduct of the election by the electoral
commission.
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Industrial Organisations
Electoral commission's conduct of elections
Clause 54 requires that where an electoral commission official is
involved in or is actually conducting an election that official must comply
with the rules of the industrial organisation. The official may take action,
and give directions to ensure--
· no irregularities happen in the election, or
· any procedural defects that appear to the electoral official to exist
in the rules will be remedied.
An election conducted by an electoral official is not invalid merely
because of a breach of the rules of the organisation or branch because of
action taken or an act done in compliance with a direction given.
Where an electoral official conducting an election, dies, becomes unable
to complete the conduct of the election, or ceases to be qualified to conduct
the election, the electoral commissioner must arrange for the completion of
the conduct of the election.
Election expenses
Clause 55 provides for the expenses of a ballot conducted by the electoral
commission to be paid by the industrial organisation concerned in the ballot.
The relevant organisation must pay the State within 1 month of receiving
a written request from the electoral commission.
Death of candidate
Clause 56 provides that despite anything in the rules of an industrial
organisation, if 2 or more candidates are nominated for an election in
relation to an office in the organisation and one of the candidates dies before
the close of the ballot, the election must be discontinued and a new election
held.
Ballot records must be preserved
Clause 57 provides that where there is an election for an office in an
industrial organisation and such election is conducted by the electoral
commission, the responsible person for the ballot must ensure that all
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Industrial Organisations
records relevant to the election are kept by the electoral commission for a
period of 1 year after the election.
Where the election is conducted other than by the electoral commission,
the responsible person for the ballot must ensure that all records relevant to
the election are kept by the organisation for a period of 1 year after the
election.
Election help
Clause 58 provides that an organisation must help a candidate in the way
contained in the model election rules or in a regulation.
Resources of organisations not to be used for election purposes
Clause 59 ensures that an industrial organisation does not spend
resources, including financial resources, on a candidate in an election against
another candidate. This applies to advertising or distributing material.
PART 6--DISPUTED ELECTIONS
Division 1--Election inquiries
Application for election inquiry
Clause 60 sets out the requirements for applications to the industrial court
for election inquiries by financial members of an industrial organisation
(including a person who was a financial member within the previous year)
who claim alleged irregularities in an election. The application must be
lodged with the industrial registrar.
Action by registrar for inquiry
Clause 61 sets out the action which is to, or may, be taken by the
industrial registrar in relation to an election inquiry application.
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Industrial Organisations
The registrar must refuse an application if not satisfied there are
reasonable grounds and circumstances.
The industrial court may also empower the registrar to do certain actions
in respect of gathering information about the relevant election.
Court to conduct inquiry
Clause 62 sets out procedural steps to be taken by the industrial court in
connection with an election inquiry.
Court may make interim orders
Clause 63 enables the industrial court to make interim orders relating to
an election, a person who holds or acts in an office that an inquiry relates to
and incidental matters.
Procedure at inquiry
Clause 64 enables the industrial court to permit or require persons to
appear at an election inquiry hearing. Such persons are parties to the
inquiry.
Functions and powers of court at inquiry
Clause 65 specifies the action the industrial court is to take at an election
inquiry and if an irregularity is found (or is likely) it may make a range of
prescribed orders.
The order cannot be made unless the court decides the election may have
been (or may be) affected by the irregularity.
To assist any inquiry the court has the majority of the powers and
authorities of a commission of inquiry under the Commissions of Inquiry
Act 1950.
Enforcing orders under this part
Clause 66 empowers the industrial court to make orders for injunctions
for the purposes of this part.
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Industrial Organisations
Preventing orders about disputed elections
Clause 67 makes it an offence for a person to prevent the carrying out of
an order of the industrial court under this part.
Validating certain acts
Clause 68 validates actions done by a person during a period when the
person purported to hold office in an industrial organisation but whose
purported election has been overturned as a result of an inquiry.
However, the industrial court may declare any act by the person to be
void.
Election not invalid
Clause 69 provides that in complying with an order of the industrial
court, an election or step in an election is not invalid by reason only of
contravening the rules of the industrial organisation concerned.
Inquiry costs
Clause 70 provides that the Minister may make payments on certain
grounds relating to costs in connection with an election inquiry.
Division 2--Registrar may conduct elections
Application of pt 6, div 2
Clause 71 specifies that this division shall only apply where the
commission has granted an exemption for the conduct of an election.
Registrar to conduct elections on request
Clause 72 provides that the management committee of an industrial
organisation or branch or 5% or 250 (whichever is less) of the members of
the organisation or branch may request an election for an office in an
organisation be conducted by the industrial registrar. This is on the basis of
ensuring no irregularities occur in the election.
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Industrial Organisations
Under certain criteria, the registrar must organise with the electoral
commission for an electoral official to conduct the election.
The electoral official may give directions to ensure no irregularities occur
in an election and to remedy a procedural defect in the rules of the
organisation concerned.
Election on registrar's initiative
Clause 73 enables the industrial registrar to make arrangements with the
electoral commission for the conduct of an election for an office in an
industrial organisation on the registrar's own motion if satisfied on
reasonable grounds there is a likelihood of an irregularity in connection with
an election for an office in the organisation.
Division 3--Election expenses
Expenses for elections under this part
Clause 74 provides that expenses in connection with certain elections are
to be paid by the industrial organisation concerned, except where an
irregularity occurred for which the electoral commission was at fault and the
court orders the State to pay all or part of the expenses.
PART 7--DISQUALIFICATION FROM HOLDING
OFFICE IN ORGANISATIONS
Definitions for pt 7
Clause 75 defines terms used commonly and solely in part 7.
Eligibility for office
Clause 76 deals with the eligibility of a person convicted of a prescribed
offence to stand for election to an office, or to be elected or appointed to a
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Industrial Organisations
casual vacancy for an office in an industrial organisation. Such person is
not eligible except under certain circumstances.
The provision also deals with existing office holders in the event of a
conviction.
Application for leave to hold office by prospective candidate for office
Clause 77 deals with applications to the industrial court by persons
convicted of a prescribed offence for leave to stand for election, or to be
appointed to a casual vacancy for an office in an industrial organisation.
Application for leave to hold office in organisation by office holder
Clause 78 deals with applications by current office holders convicted of a
prescribed offence for leave to continue to hold office in industrial
organisations.
Court's obligation and powers for declarations
Clause 79 details who is to be given an opportunity to be heard by the
industrial court for declarations that a person
· is or was not eligible to be a candidate for election or to be elected
· has ceased to hold an office.
In these instances the court can make any order it considers appropriate.
Court's obligations for applications
Clause 80 sets out the matters which the industrial court must take into
account when considering an application for leave to hold office in industrial
organisations. The court is to give the organisation an opportunity to be
heard on the application.
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Industrial Organisations
PART 8--MEMBERSHIP OF ORGANISATIONS
Entitlement to membership
Clause 81 stipulates the criteria for membership of an industrial
organisation.
Members and officers registers
Clause 82 requires every industrial organisation to keep a register of its
members and a register of its officers.
Certain particulars are required to be recorded in the registers including
where an organisation has more than 100 members, the members names
listed alphabetically.
Filing registers
Clause 83 provides that industrial organisations must file with the
industrial registrar a copy of the register of members and register of officers
within 7 days of its registration (or longer period allowed by the industrial
relations commission) and subsequently on an annual basis.
Exemption from filing members register etc.
Clause 84 allows the industrial registrar to exempt an industrial
organisation from the requirement to file a copy of its register of members
of the organisation.
In this regard a certificate is issued which may apply to the organisation
or a branch of the organisation.
Rectification of registers by commission
Clause 85 empowers the industrial relations commission to rectify by
order an industrial organisation's register of members or register of officers.
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Industrial Organisations
Registrar's access to registers
Clause 86 enables access to the register of members and register of
officers of an industrial organisation (including an index) by the industrial
registrar and members of the organisation.
For purposes of a ballot or by order of the industrial court or industrial
relations commission the registrar may direct either registers (and index) to
be delivered to the registrar.
Organisations to keep union ticket butts
Clause 87 provides that an industrial organisation must keep butts or
copies of union membership tickets.
A union ticket includes receipts for organisation membership.
The butts must show where members live.
Resigning organisation membership
Clause 88 sets out the manner in which a person resigns from
membership of an industrial organisation.
Resignation is effected if the procedures outlined in this provision are
followed regardless of the rules of the organisation concerned.
Resignation if subscription unpaid for 1 year and no renewal
Clause 89 provides that resignation from an industrial organisation is
taken to have occurred where the member has not paid a membership
subscription within 1 year of it first becoming payable and not renewed
membership.
Conscientious objection to organisation membership
Clause 90 enables certificates of exemption from membership of an
industrial organisation of employees to be granted to individuals on the
grounds of their conscientious beliefs.
Applications are to be made either to an industrial magistrate or the
industrial registrar.
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Industrial Organisations
Interviews are conducted at which only selected persons are allowed to be
present.
Conscientious beliefs means individual beliefs on moral values or
religious beliefs.
Conduct about exemption certificate holders
Clause 91 provides protection from prejudicial conduct in employment
towards holders of conscientious objectors' certificates.
Evidentiary provision for s 91
Clause 92 ensures that actions taken by management committees,
officers, employees, agents and members of industrial organisations in
relation to conduct about exemption certificate holders is evidence the action
was taken by the organisation and the intent of the parties is taken to be the
organisation's intent.
Court may decide membership disputes
Clause 93 provides a means whereby questions or disputes regarding
membership entitlements may be settled in the industrial court.
Offences about membership
Clause 94 makes it an offence for an industrial organisation not to--
· grant membership to a person entitled to be admitted within 3
months of that person's application unless the matter is disputed
before the industrial court (in the latter case it must be within 1
month of the court decision to allow membership)
· give a union ticket, within 1 month, to a person who has a right to
be a member and complies with the organisation's rules.
Members under 18
Clause 95 allows persons under 18 to be members of an industrial
organisation but not to be members of the organisation's committee of
management. In addition, a person under 18 is not to be a trustee or
treasurer of an organisation.
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Industrial Organisations
PART 9--AMALGAMATING INDUSTRIAL
ORGANISATIONS
Division 1--Preliminary
Definitions for pt 9
Clause 96 sets out the meaning of certain terms specific to part 9. These
definitions are also signposted in the dictionary in Schedule 3 to the Bill.
Proposed amalgamation procedure
Clause 97 confirms that the only procedure available to implement a
scheme for a proposed amalgamation is as set out under this part. The
industrial relations commission can make orders and give directions to
resolve any difficulties or likely difficulties that may arise during the
process.
Federations
Clause 98 allows for existing industrial organisations proposing to
amalgamate to become a federation. The federation can represent the
interests of its members but cannot become a party to an award or certified
agreement. The federation ends on the amalgamation taking effect or in
other specific circumstances.
Using resources for proposed amalgamation
Clause 99 allows an existing industrial organisation for a proposed
amalgamation to use its financial and other resources to support the
proposed amalgamation providing the management committee resolves to
do so and gives reasonable notice to the members.
27
Industrial Organisations
Division 2--Starting amalgamation procedure
Amalgamation scheme
Clause 100 requires a written scheme for every proposed amalgamation
and specifies that the scheme must include a general statement containing
specific information.
Alternative schemes
Clause 101 allows for a scheme for a proposed amalgamation of 3 or
more existing industrial organisations to include a provision (known as an
"alternative provision") for an amalgamation of 2 or more approving
organisations where all the organisations do not agree with the original
scheme.
The alternative provision must contain information regarding the
differences between the proposed principal amalgamation and each
proposed alternative amalgamation and any differences in the organisations'
rules.
Management committee approval
Clause 102 requires that the management committee of every industrial
organisation to which the scheme relates must approve, by resolution, the
scheme for proposed amalgamation including any changes to the scheme.
Community of interest declaration
Clause 103 provides an avenue for industrial organisations seeking a
proposed amalgamation to jointly apply for a declaration that there is a
community of interest between the organisations.
The application is filed with the industrial registrar. If the industrial
relations commission, after hearing submissions from relevant parties, is
satisfied there is a community of interest it must declare that it is so
satisfied.
The circumstances in which a community of interest may be declared is
set out in the clause.
The commission may revoke a declaration.
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Industrial Organisations
Application to submit proposal to a ballot
Clause 104 specifies that industrial organisations for a proposed
amalgamation must jointly apply in the industrial relations commission for
approval to submit the proposed amalgamation to a ballot of members.
This application is known as a "ballot application".
The application is filed with the industrial registrar and is to be
accompanied by a copy of the scheme for the proposed amalgamation and a
written scheme outline which gives enough information to allow members
of the organisation to make an informed decision about the scheme.
Holding office after amalgamation
Clause 105 specifies that the rules of a proposed amalgamated
organisation can allow for an officer (known as an "existing officer") who
held office in one of the organisations immediately before the amalgamation
day to be an officer of the proposed amalgamated organisation but the
continuation in office is only for a specified period.
The rules must also provide for synchronising of elections after
amalgamation takes effect.
Application for exemption from holding ballot
Clause 106 provides for a proposed amalgamated organisation to apply
for an exemption (a "ballot exemption") from holding a ballot for the
amalgamation.
The application is filed with the industrial registrar with the ballot
application for amalgamation.
Application for alternative ballot
Clause 107 allows an industrial organisation to apply to the industrial
relations commission to approve an "alternative ballot" not under clause
136 for amalgamation.
The application is filed with the industrial registrar with the ballot
application for amalgamation.
The proposed ballot must provide a specific criteria for the conduct of the
ballot.
29
Industrial Organisations
Division 3--Conduct of ballots
Electoral commission to conduct ballot
Clause 108 states that the electoral commission must conduct a ballot for
amalgamation except in the instance where the commission has given an
exemption for the ballot.
Application for exemption from s 108
Clause 109 provides for the manner in which an industrial organisation
may apply to conduct a ballot for a proposed amalgamation and the
procedures associated therewith.
The clause provides that--
· a committee of management of the organisation may file an
application with the industrial registrar for exemption from having
ballots conducted by the electoral commission
· the committee of management of the organisation making
application for exemption must have passed a resolution to make
the application and have notified the members of the resolution
· the application must be accompanied by an affidavit to the effect
that there has been compliance with the resolution requirements.
Objections to application for exemption
Clause 110 specifies that a member of an industrial organisation may
object to an application made under clause 109 and provides that the
industrial relations commission is to hear any objections made.
Commission may give exemption from s 108
Clause 111 allows the industrial relations commission to permit an
industrial organisation to have a ballot conducted other than by the electoral
commission subject to the commission being satisfied that specified
requirements are met.
The commission retains a power to revoke such permission on
application by a committee of management of an organisation or if not
30
Industrial Organisations
satisfied that prescribed requirements have been met or the organisation or
retiring officer contravened certain provisions of the Act.
Duties of organisation if exemption given
Clause 112 requires that an industrial organisation which has been
exempted from clause 108 for a ballot for a proposed amalgamation must
appoint a returning officer, who is not an employee, member or officer of
the organisation.
The industrial registrar's written approval of the returning officer's
appointment must be obtained.
Ballot result report
Clause 113 introduces the requirement that a written ballot result report
containing prescribed particulars must be given to the industrial registrar by
the electoral commission or the returning officer as the case may be.
Notice to electoral commission
Clause 114 requires the industrial registrar to notify the electoral
commission immediately of an application for a ballot for a proposed
amalgamation. The electoral commission is required to take action to hold
the ballot as quickly as possible.
Providing information and documents to electoral officers
Clause 115 allows an electoral official when conducting a ballot for a
proposed amalgamation to require by notice, an officer (including
employee) of an existing industrial organisation to provide information
within the officers knowledge or possession and to produce documents
under the officers custody or control.
It is a reasonable excuse for a person not to comply with a notice if doing
so might tend to incriminate the person.
Ballot expenses under pt 9
Clause 116 states that the expenses of a ballot for a proposed
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Industrial Organisations
amalgamation conducted by the electoral commission under this part are
payable to the State by the industrial organisation, except where an
irregularity has occurred at the fault of the electoral commission. In this
instance the industrial court may order the State to pay the expenses.
The amount payable may be recovered by the State as a debt payable to it.
Ballot records to be kept
Clause 117 provides that where there is a ballot conducted and such
ballot is conducted by the electoral commission, the responsible person for
the ballot must ensure that all records relevant to the ballot are kept by the
electoral commission for a period of 1 year after the election.
Where the ballot is conducted other than by the electoral commission, the
responsible person for the ballot must ensure that all records relevant to the
ballot are kept by the industrial organisation or branch for a period of 1 year
after the election.
Division 4--Amalgamation approval procedure
Amalgamation hearing
Clause 118 requires the industrial relations commission to immediately
fix a time and place for the hearing of submissions about--
· the application; and
· making a declaration of a community of interest, where relevant;
and
· giving a ballot exemption where relevant; and
· giving approval for an alternative ballot, where relevant.
The commission must promptly give notice of the time and place for the
hearing.
Submissions at amalgamation hearings
Clause 119 provides for submissions at the hearing to be only made by
the applicant. However, where the industrial relations commission
32
Industrial Organisations
consents, another person may make a submission about a matter as
prescribed under a regulation.
Ballot approval not extending eligibility rules etc.
Clause 120 relates to the industrial relations commission's involvement
in the approval of ballots. More specifically the provision--
· requires the commission to approve the submission of the
amalgamation to ballot conditional upon certain requirements
being met
· requires the commission to allow an application for a ballot
exemption under clause 133 or 134 if the ballot conditions are met
· requires the commission to refuse the application or adjourn the
hearing if it is satisfied the ballot conditions have not been met
· requires the commission to allow the application if it considers the
ballot conditions will be met by allowing the applicant to amend,
or give an undertaking to amend, the amalgamation scheme
· provides for the scheme to be amended with conditions despite
the industrial organisation's rules
· specifies action that the commission may take where the applicant
does not fulfil its undertaking or meet the commission conditions.
Objections about amalgamation involving extending eligibility rules
etc.
Clause 121 states that where the industrial relations commission has
refused to approve an amalgamation be submitted to ballot an objection may
be made by a person and on a ground prescribed by regulation.
The commission must hear the objection as prescribed under a
regulation.
Ballot approval if ballot extends eligibility rules etc.
Clause 122 provides for the industrial relations commission to approve
an application to submit a proposed amalgamation to ballot and allow a
33
Industrial Organisations
ballot exemption where any objections have been heard and dismissed and
other criteria met.
One of the criteria for approving the application is that the amalgamation
does not contravene this legislation, an award or certified agreement.
The commission can refuse an application or adjourn a proceeding.
If the applicant makes amendments to the scheme or gives an
undertaking to make amendments subject to conditions and in so doing
satisfies the commission that the criteria are met, the commission must
allow the application and approve the submission or allow an exemption.
The commission can take action where the applicant has not fulfilled its
undertaking or met the commission conditions.
Fixing ballot period
Clause 123 requires the industrial relations commission after approving
the submission of a proposed amalgamation to a ballot, to consult with the
electoral commissioner and fix a starting and finishing day for the ballot.
The ballot must start within 28 days of approval but this can be extended
in certain circumstances.
The commission can change the starting and finishing days after
consulting with the electoral commissioner.
Role of voters for ballot
Clause 124 defines the role of voters and specifies who may vote in the
ballot for the proposed amalgamation.
Filing `yes' case
Clause 125 provides for the filing of a written statement by an existing
industrial organisation supporting the proposed amalgamation.
This statement (known as a " `yes' case") is filed with the ballot
application for the proposed amalgamation.
34
Industrial Organisations
`No' cases
Clause 126 provides for the filing of a written statement by a "required
minimum number" of members of the industrial organisation opposing the
proposed amalgamation.
This statement (known as a " `no' case") must be filed within a
nominated time.
Commission statements
Clause 127 requires the industrial relations commission to prepare a
written statement opposing the amalgamation where 2 or more `no' cases
are filed. Where practicable, consultation with representatives of the
persons who filed the `no' cases is to occur.
The statement must be sent with the ballot paper and is taken to be the
only `no' case for the amalgamation.
`Yes' or `no' cases may include things other than words
Clause 128 states that, if the industrial relations commission approves, a
`yes' or `no' case may include material other than words for example,
diagrams, illustrations, photographs etc.
Amending `yes' or `no' cases
Clause 129 states the industrial relations commission may allow the
person who filed a `yes' or `no' case to make amendments to it.
`Yes' and `no' cases to be sent to voters
Clause 130 requires that a copy of the `yes' and `no' cases and any
amendments must be sent with the ballot paper to persons eligible to vote.
Amending schemes
Clause 131 allows the industrial relations commission, prior to the ballot,
to permit the existing industrial organisations for amalgamation to amend
the scheme for amalgamation.
35
Industrial Organisations
The commission can impose conditions and can take action if the
conditions are contravened.
Scheme outlines
Clause 132 gives the industrial relations commission discretion to allow
the scheme outline to extend beyond the 3000 words as prescribed in clause
104. The outline can include material not in written format including
diagrams, illustrations and photographs.
The commission can also permit amendments to the outline before the
ballot begins.
Ballot exemption--number of members
Clause 133 requires the industrial relations commission to approve,
unless special circumstances exist, a ballot exemption application where the
total number of persons that could be members of the proposed
amalgamated organisation does not exceed 25% of the number of members
of the applicant organisation.
Ballot exemption--recognising federal ballot
Clause 134 allows the industrial relations commission to recognise the
results of a ballot under the Commonwealth Act and approve a ballot
exemption subject to specific requirements, including an objection by a
member.
Alternative ballot approval
Clause 135 allows the industrial relations commission to approve an
alternative ballot for a proposed amalgamation after the hearing is conducted
and consultation has occurred with the electoral commissioner.
Members' secret postal ballot
Clause 136 provides that where the industrial relations commission
approves a ballot for the amalgamation, the electoral commission is to
conduct a secret postal ballot of the industrial organisation's members.
36
Industrial Organisations
Where the amalgamation scheme contains a proposed alternative provision
the electoral commission must conduct a ballot on the alternative provision.
If 2 or more ballots are required, the same ballot paper must be used.
Votes are not required to be counted if the ballot result is unnecessary.
A copy of the scheme outline and amendments to it is to accompany the
ballot paper sent to eligible voters.
Members' decision on amalgamation
Clause 137 prescribes the voting requirements necessary for approval of
the amalgamation.
Further ballot if amalgamation not approved
Clause 138 permits industrial organisations to file another ballot
application for a proposed amalgamation should a ballot not be approved by
the members. Specifically, the provision allows the industrial relations
commission to dispense with any procedural step or order a fresh ballot be
conducted where the application is made within 1 year of the declaration of
the first ballot.
Irregularity inquiries
Clause 139 provides for an application to be made to the industrial court
within 60 days after the result of the ballot to inquire into an alleged
irregularity in the ballot.
The court has the same functions and powers as applicable under part 6
which relates to inquiries on elections to hold office.
Amalgamation approval
Clause 140 provides that the proposed amalgamation is approved if the
members of each existing organisation approve the amalgamation.
Where the approval relates to a proposed alternative amalgamation,
specific criteria apply.
37
Industrial Organisations
Division 5--Amalgamation taking effect
Fixing amalgamation day
Clause 141 states that the approved amalgamation commences on the
day fixed by the industrial relations commission by notice in the gazette.
Prior to fixing the day, the commission is required to consult with the
industrial organisations concerned and satisfy itself about various specific
issues.
Action on amalgamation
Clause 142 requires the industrial relations commission and industrial
registrar to take particular action on the amalgamation day with respect to
the registration and deregistration of the industrial organisations involved.
Vesting of property and liabilities in amalgamated organisation
Clause 143 provides that on the amalgamation day the assets and
liabilities of the deregistered industrial organisation become the assets and
liabilities of the amalgamated organisation.
Effect of amalgamation on commission decisions
Clause 144 states that all decisions of the industrial relations commission
binding on a deregistering industrial organisation immediately before the
amalgamation day binds the amalgamated organisation. This includes the
organisation's members.
Any reference in such decisions to a deregistered organisation are to be
read to include the amalgamated organisation.
Instruments
Clause 145 provides that an instrument, as defined in this clause,
continues to have effect from the amalgamation day.
Any reference in an instrument to a deregistered industrial organisation is
to be read to include the amalgamated organisation.
38
Industrial Organisations
Pending proceedings
Clause 146 states that an amalgamated industrial organisation is
substituted for each deregistered organisation in any pending proceedings
before the industrial court and industrial relations commission as from the
amalgamation day.
Division applies despite laws or instruments
Clause 147 provides that--
· this division prevails over another Act or instrument
· protection is afforded to an industrial organisation or other person
from liability from a breach of contract, confidence, civil wrong
or breach of any Act for action taken arising from this division
· action taken under the division does not release any surety or part
of the surety's obligations
· where consent is required by a person to give effect to any aspect
of this division, that consent is deemed to have been given.
Amalgamated organisation to carry out amalgamation
Clause 148 provides for the amalgamated industrial organisation to take
all necessary steps to carry out the amalgamation.
The industrial relations commission can make any orders considered
appropriate in relation thereto on application by an interested person.
Certificates about land
Clause 149 provides for the transfer of land, which includes interest in
land, where an amalgamated industrial organisation acquires it as a result of
the amalgamation. The registrar of titles, upon receipt of a certificate from
an authorised person for the amalgamated organisation must register the
vesting of the land in the amalgamated organisation.
The vesting of land in the amalgamated organisation may be registered
under another State's law in certain circumstances.
39
Industrial Organisations
Certificates about charges
Clause 150 applies where an amalgamated industrial organisation
becomes a charge holder because of this division.
An authorised person's certificate listing specified criteria is evidence of
an amalgamated organisation becoming a charge holder.
A person required or permitted to keep a register about charges, upon
receipt of the certificate, is to take action to register the organisation
becoming a charge holder or otherwise deal with and give effect to the
certificate.
Certificates about company interests
Clause 151 provides for the transfer of a share, debenture or interest in a
company where an amalgamated industrial organisation becomes the holder
thereof through the amalgamation process.
An authorised person's certificate listing specified criteria is evidence of
an amalgamated organisation becoming the holder of a company interest.
The company, having received the certificate, must take appropriate
action to register the interest.
Certificates about other property
Clause 152 provides for the transfer of other assets where an
amalgamated industrial organisation acquires the assets as a result of the
amalgamation.
An authorised person's certificate listing specified criteria is evidence of
an asset becoming the amalgamated organisation's property.
A person with registration functions for the relevant asset, upon receipt of
the certificate, must register the matter, deal with and give effect to the
certificate.
A transfer of the asset may be registered under another State's law in
certain circumstances.
40
Industrial Organisations
Commission may resolve difficulties
Clause 153 empowers the industrial relations commission to make an
order to overcome any difficulty which may arise in connection with this
part.
Any order made prevails over any rules of an organisation.
Division 6--Validation
Application of division
Clause 154 provides for the application of this division to certain actions
done relating to amalgamations excluding industrial relations commission
orders made under a specified provision.
Validating acts in good faith
Clause 155 provides that a relevant act done in good faith in connection
with an amalgamation is valid despite an invalidity discovered later.
Validation after 4 years
Clause 156 states that 4 years after the relevant act was done, the act is
taken to have been done under this part and the industrial organisation's
rules.
Order that s 155 or 156 does not apply
Clause 157 provides that the industrial relations commission on
application by an eligible person may make orders that clause 155 or 156
does not apply.
Orders about invalidities
Clause 158 allows the industrial relations commission, on application by
an eligible person, to make orders that it considers appropriate if it decides
an invalidity has happened in relation to a proposed or completed
amalgamation.
41
Industrial Organisations
PART 10--WITHDRAWAL FROM
AMALGAMATIONS
Division 1--General
Object of pt 10--Cwlth s 253ZH
Clause 159 provides that the object of Part 10 is to allow, in a manner
that is fair to the members of the industrial organisations concerned, and the
creditors of those organisations the reconstitution and re-registration of
certain organisations that have taken part in amalgamations.
Definitions for pt 10--Cwlth s 253ZI
Clause 160 (1) defines a number of terms for the purposes of this part.
Several of these definitions are consistent with those in part 9
(amalgamation of industrial organisations).Subclause 160 (2) sets out the
circumstances in which an organisation is taken to have been de-registered
in connection with the formation of an amalgamated organisation.
Division 2--Ballots for withdrawal from amalgamated organisations
Applications to the commission for ballots--Cwlth s 253ZJ
Clause 161 specifies the time limits that apply on an application for a
withdrawal from amalgamation.
An application may be made to the industrial relations commission for a
secret ballot to decide whether a constituent part of an amalgamated
organisation should withdraw from the organisation.
An application may be made if the specified requirements are satisfied.
These include periods after which the amalgamation cannot be undone.
An application may not be made within 1 year of either the commission
having rejected an application in relation to the constituent part of the
organisation or a proposal for withdrawal having been rejected in a ballot.
42
Industrial Organisations
Ballot exemption--recognising federal ballot
Clause 162 provides that State industrial organisations that have a
counter- part federal body may apply to the industrial relations commission
for an exemption from ballot if the counterpart federal body has withdrawn
from an amalgamation.
A member of the organisation may object to the exemption on certain
grounds.
The criteria the commission is to take account of before granting an
exemption is prescribed.
The commission must grant the exemption if satisfied of these
stipulations unless special circumstances exist.
Where an exemption is granted, the members of the organisation are
taken to have approved the withdrawal from amalgamation.
Notice to electoral commission--Cwlth s 253ZK
Clause 163 requires the industrial registrar to immediately notify the
electoral commission if an application for ballot is made.
The electoral commission is required to conduct a ballot for the
application as quickly as possible.
Orders for ballots--Cwlth s 253ZL
Clause 164 provides that, where the industrial relations commission is
satisfied that the application for the ballot has been validly made, and the
proposal for the withdrawal of the constituent part is feasible, the
commission must order that the ballot take place.
Subclause 164 (2) provides that in considering whether to order a ballot,
the commission must consider any submissions made by authorised
persons.
Subclause 164 (3) allows the commission to make orders in relation to
the conduct of the ballot.
43
Industrial Organisations
Conducting ballot--Cwlth s 253ZM
Clause 165 requires the electoral commission to carry out the ballot in
accordance with the regulations except where an exemption has been given.
Application for exemption from s 165
Clause 166 provides that the persons or body who may apply for a ballot
(a certain number of constituent members or a committee of management)
may file an application with the industrial registrar for exemption from
having the ballot conducted by the electoral commission.
The parties must have passed a resolution to make the application and
have notified the members of the resolution.
An authorised person must include with the application an affidavit to the
effect that there has been compliance with the resolution requirements.
The registrar must publish a notice stating details of any application.
Objections to application for exemption
Clause 167 specifies that a member of a constituent part may object to
an application made under clause 166 and provides that the industrial
relations commission is to hear any objections made.
Commission may give exemption from s 165
Clause 168 allows the industrial relations commission to exempt a
constituent part from the requirement to have a ballot conducted by the
electoral commission where the application has been made as prescribed
and properly made objections have been heard.
The commission retains a power to revoke any exemption granted under
specified circumstances.
Duties of constituent part if exemption given
Clause 169 requires that a constituent part which has been exempted
from the requirement that the ballot be conducted by the electoral
44
Industrial Organisations
commission must--
· appoint a returning officer, who is not a member, employee or
officer of the industrial organisation (a statutory declaration sworn
by the returning officer must state this)
· obtain the industrial registrar's written approval of the returning
officer's appointment.
Ballot result report
Clause 170 requires that a written ballot result report containing
prescribed particulars must be given to the industrial registrar by the
electoral commission or the returning officer as the case may be.
Providing information and documents to electoral officers--Cwlth s
253ZN
Clause 171 empowers an electoral official who has written authorisation
from the electoral commission to require (by written notice and where
reasonably necessary) an officer or an employee of the amalgamated
organisation or a branch thereof to provide to the official, within a
reasonable period, information or documents.
The required content of any notice from the electoral official to an officer
or employee for information or documents is stipulated.
A person must not contravene the notice without reasonable excuse.
Ballot records must be preserved
Clause 172 provides that where there is a ballot conducted and such
ballot is conducted by the electoral commission, the responsible person for
the ballot must ensure that all records relevant to the ballot are kept by the
electoral commission for a period of 1 year after the election.
In those instances where the ballot is conducted other than by the electoral
commission, the responsible person for the ballot must ensure that all
records relevant to the ballot are kept by the industrial organisation or branch
for a period of 1 year after the election.
45
Industrial Organisations
Irregularity inquiries
Clause 173 provides for an application to be made by a constituent
member to the industrial court for it to inquire into a ballot irregularity.
The application must be made in a prescribed way and not later than 60
days after the ballot result has been declared.
Division 3--Giving effect to ballots
Deciding the day of withdrawal--Cwlth s 253ZP
Clause 174 specifies that the industrial relations commission must make
certain orders where more than 50% of the formal votes cast in a ballot are
in favour of the withdrawal from amalgamation.
The commission is required to--
· determine the day on which the withdrawal is to take effect;
· make orders in connection with the apportionment of assets and
liabilities; and
· make other orders necessary to give effect to the withdrawal, eg
changes to eligibility rules.
The commission must not determine the day on which the withdrawal is
to take effect if certain applications are made.
The commission is to consider the assets and liabilities, (including
changes in value) of the constituent part before it was deregistered and the
interests of creditors of the amalgamated organisation.
Registration of constituent part--Cwlth s 253ZQ
Clause 175 provides for the registration of the constituent part as an
industrial organisation and the entry of particulars in the register of
organisations.
46
Industrial Organisations
Members of amalgamated organisation may join registered
organisation--Cwlth s 253ZR
Clause 176 provides for members of the amalgamated organisation who
fall within the eligibility rules of the newly registered industrial organisation
to join the latter, without payment of a membership fee.
Orders of the commission, awards etc.--Cwlth s253 ZS
Clause 177 provides for the application of awards, orders and certified
agreements following a withdrawal from an amalgamation. On the day that
the registration of the newly registered industrial organisation takes effect all
applicable awards, orders and certified agreements become binding on the
newly registered organisation and its members.
Withdrawal regulations--Cwlth s 253ZT
Clause 178 states that regulations may provide for other matters related
to giving effect to the withdrawal of the constituent part. These include, but
are not limited to, the matters specified in the clause.
Division applies despite laws and agreements prohibiting transfer
etc.--Cwlth s 253ZU
Clause 179 protects an industrial organisation or person from liability
under any Act, or the common law in relation to actions carried because of,
or for a purpose connected to or arising out of, this division.
The division applies despite anything in an Act, contract, deed,
undertaking agreement or other instrument. This does not apply to place an
organisation or person in breach of an Act, certain contracts or to release any
surety, wholly or part from the surety's obligations.
Nothing done by the division is to be regarded as placing an organisation
or other person in breach of contract, confidence or guilty of a civil wrong.
47
Industrial Organisations
Division 4--Validation
Application of division
Clause 180 provides for the application of this division to certain actions
done relating to withdrawals from amalgamations excluding industrial
relations commission orders made under specified clauses.
Validating acts in good faith
Clause 181 provides that a relevant act done in good faith in connection
with a withdrawal from amalgamation is valid despite an invalidity
discovered later.
Validation after 4 years
Clause 182 states that 4 years after the relevant act was done, the act is
taken to have been done under this part and the industrial organisation's
rules.
Order that s 181 or 182 does not apply
Clause 183 provides that the industrial relations commission on
application by an eligible person may make orders that clause 181 or 182
does not apply.
Orders about invalidities
Clause 184 allows the industrial relations commission, on application by
an eligible person, to make orders that it considers appropriate if it decides
an invalidity has happened in relation to a proposed or completed
withdrawal from amalgamation.
48
Industrial Organisations
Division 5--Miscellaneous
Commission may resolve difficulties--Cwlth s 253ZV
Clause 185 gives the industrial relations commission the power to make
discretionary orders for the purpose of resolving any difficulties which arise
in relation to the application of this division. Any order made by the
commission prevails over any law or the rules of an industrial organisation
or association seeking registration as an organisation.
Ballot expenses under pt 10
Clause 186 provides that the expenses of a ballot conducted by the
electoral commission are payable by the applicant for the ballot and may be
recovered by the State as a debt.
PART 11--CANCELLING REGISTRATION
Cancelling registration for industrial conduct
Clause 187 provides for application to be made to the full industrial court
for the cancellation of registration of an industrial organisation on grounds
of industrial conduct.
Orders if cancellation deferred
Clause 188 enables the full industrial court to make orders other than for
the cancellation of an industrial organisation's registration where a ground
for cancellation has been established.
Cancelling registration on other grounds
Clause 189 provides for the full industrial court to cancel the registration
of an industrial organisation in various circumstances. Provisions include
those applicable for the cancellation of registration of enterprise
organisations.
49
Industrial Organisations
Cancellation directions
Clause 190 enables the full industrial court to give directions to bring
about the cancellation of registration of an industrial organisation.
Recording cancellation
Clause 191 provides that the industrial registrar is to record the
cancellation of an industrial organisation in the register of organisations.
Consequences of cancellation
Clause 192 sets out the consequences of cancellation of registration for
the status, property, entitlements and liabilities of the former industrial
organisation and its members.
PART 12--ACCOUNTS AND AUDIT
Division 1--Preliminary
Objects of pt 12
Clause 193 sets out the objects of this part namely to ensure that an
industrial organisation is accountable to its members and that it complies
with the Australian accounting standards.
Definition for pt 12
Clause 194 defines Australian accounting standards for the purpose of
this part.
Meaning of "financial year" in pt 12
Clause 195 defines the term "financial year" for the purposes of this part.
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Applying part to organisations with branches
Clause 196 provides that this part applies to a branch of an industrial
organisation as if it was an organisation in its own right. The industrial
registrar is empowered, on application of an organisation with branches, to
give a certificate exempting a branch from the provisions that it was an
organisation in its own right.
Exemption for branches without financial affairs--Cwlth s 271A
Clause 197 enables the industrial registrar, on application of a branch of
an industrial organisation, to issue a certificate that the branch did not have
any financial affairs. A certificate exempts that branch from the
requirements of this part in respect of the financial year.
Division 2--Accounting obligations
Organisations must keep proper accounting records
Clause 198 provides that industrial organisations are to keep proper
accounting records which--
· explain the methods and calculations about how the accounts are
made up
· correctly record and explain its transactions and financial position
· contain details of contributions to and expenditure from a political
objects fund, if one exists for the organisation.
Preparing accounts
Clause 199 provides that an industrial organisation must prepare
accounts for each financial year which include the relevant figures from the
preceding financial year's accounts and particulars which may be prescribed
by regulation.
Prescribed particulars include details about any matter for which a levy
payable by a member of an organisation under its rules or voluntary
contribution is paid.
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Industrial Organisations
Regulation may give effect to Australian accounting standards
Clause 200 provides that a regulation may give effect to the Australian
accounting standards.
Members may apply for information
Clause 201 permits a member of an industrial organisation or the
industrial registrar at the request of a member to apply to an organisation for
information prescribed by regulation.
The organisation must provide the information in the manner prescribed
by regulation. The organisation must include in their accounts a notice to
this effect.
Officers' duties
Clause 202 provides that the industrial registrar may require an officer of
an industrial organisation to--
· give information about the organisation's funds and accounts
· comply with a direction about the books and forms of account
· produce the organisation's books.
Division 3--Audits
Auditors
Clause 203 provides that an industrial organisation must--
· have an auditor to perform functions in accordance with this part
· ensure that an audit and audit report are performed by a competent
person (as defined).
Auditor's functions
Clause 204 details the duties of an industrial organisation's auditor
including the preparing of an audit report within 4 months of the ending of
each financial year.
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Industrial Organisations
The auditor must notify the industrial registrar if a provision of this part
has been contravened and such contravention cannot be dealt with in the
audit report.
Auditor's powers
Clause 205 sets out the powers of an auditor of an industrial
organisation. An organisation, officer, employee or member of an
organisation is prohibited from preventing an auditor from exercising those
powers or from failing to produce documents to the auditor without
reasonable excuse.
Auditor's fees and expenses
Clause 206 provides that an industrial organisation must pay its auditor's
reasonable fees and expenses.
Removing auditors
Clause 207 sets out the ways in which an industrial organisation may
remove an auditor.
Auditors have qualified privilege
Clause 208 provides protection for auditors from making defamatory
statements and for other persons publishing those statements in the
circumstances provided.
Division 4--Presenting and lodging audit reports and accounts
Presentation to annual general meeting
Clause 209 states that an industrial organisation must present its audit
report and accounts to an annual general meeting within 5 months of the
ending of each financial year unless extended by the industrial registrar.
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Industrial Organisations
Extension of time to hold annual general meeting
Clause 210 permits an industrial organisation to apply to the industrial
registrar under certain circumstances for an extension of time to hold the
annual general meeting.
Presentation to committee meeting if a deficiency
Clause 211 requires an industrial organisation to present an audit report
and accounts to a management committee meeting where an audit report
identifies an accounting deficiency or the report and accounts will not be
presented to an annual general meeting within 7 days.
Copies of report must be given to members
Clause 212 requires an industrial organisation to give its members free of
charge a copy of its audit report and accounts at least 14 days before the
annual general meeting to which the report will be presented.
This requirement is satisfied if the report and accounts are published in a
journal or newsletter which is given to members free of charge at least 14
days before the annual general meeting.
False or misleading statements about reports
Clause 213 prohibits a member of an industrial organisation's
management committee from making a statement that the member knows
is false or misleading about the organisations audit report.
Lodging reports with registrar
Clause 214 requires an industrial organisation which has presented its
audit report and accounts to lodge a copy with the industrial registrar within
14 days unless extended by the registrar.
Organisation may file reports for branches
Clause 215 specifies an industrial organisation must file with the
industrial registrar copies of its branches' audit report and accounts within
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14 days of when copies of the reports and accounts are required to be
presented unless the time is extended by the registrar.
Division 5--Registrar's investigations and audits
Registrar's investigations
Clause 216 requires that the industrial registrar investigate an accounting
deficiency identified in an auditor's report or another matter which the
registrar considers should be investigated as revealed by documents filed by
an industrial organisation.
Where this investigation reveals sufficient grounds, the registrar may
investigate the organisation's finances or financial administration.
If requested by the specified number of members, the registrar must
investigate the organisation's finances or financial administration.
Registrar may conduct other investigations--Cwlth s 280A
Clause 217 empowers the industrial registrar to investigate whether the
accounts of an industrial organisation contain any deficiency, failure or
shortcoming or there has been a contravention of this part, a regulation
made for the purposes of this part or a rule of an organisation relating to its
finances or financial administration.
Investigations under ss 216 and 217--Cwlth s 280B
Clause 218 sets out the powers of the industrial registrar in undertaking
investigations under sections 216 or 217.
If on completion of the investigation the registrar is satisfied that the
industrial organisation has contravened a provision of the legislation or a
rule of the organisation relating to its finances or financial administration,
the registrar must notify the organisation of the contravention, what action is
required and a period in which such action should be taken to rectify the
matter.
The industrial court, on application by the registrar is empowered to
makes such orders to ensure compliance with the registrar's notice.
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Industrial Organisations
Offences about registrar's investigations
Clause 219 makes it an offence for a person, without reasonable excuse,
to--
· fail to attend before the industrial registrar
· fail to provide information or documents required by the registrar
· provide information or documents which the person knows to be
false or misleading or to make an oral or written statement which
the person knows to be false or misleading.
Registrar's examinations and audits
Clause 220 sets out conditions under which the industrial registrar may
engage an auditor to examine an industrial organisation's accounting
records.
The registrar is required to give the auditor notice of the engagement. The
auditor is to report to the registrar and has the powers and duties as set out.
It is an offence for an officer, employee or person having custody of the
organisation's records, without reasonable excuse, to withhold information
within their knowledge or control or required for the audit under this
section.
The organisation is required to meet the costs of the audit and the
registrar is empowered to recover those costs where they have not been paid
on demand.
Division 6--Auditors may attend meetings
Notice of meeting to auditor
Clause 221 requires an industrial organisation to give an auditor notice of
a general or management committee meeting at which the auditor's report
will be presented.
Auditor may attend meetings
Clause 222 allows an auditor or an authorised substitute to attend an
industrial organisation's annual general meeting or management committee
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Industrial Organisations
meeting at which the auditor's report and the accounts will be presented or
business to be conducted concerns the auditor.
It becomes an offence for an officer, employee or member of an
organisation, without reasonable excuse, to prevent attendance at the
meeting or for the presiding officer to prevent the auditor or substitute from
being heard.
Division 7--Exemption for organisations with low income
Accounts and audits for low income organisations
Clause 223 provides that on application by an industrial organisation the
industrial registrar must issue a certificate that the organisation's income
was less than the specified amount. This certificate exempts the
organisation from certain provisions of this part.
After the issue of a certificate, the organisation is required to prepare
from its accounting record the accounts and statements which may be
required by regulation.
The organisation is required to--
· present a copy of its audit report and accounts to a general
meeting before the end of the next financial year
· provide a copy of the audit report and accounts to a member on
request
· file copies of the audit report and accounts with the registrar
within a specified period.
Failure of an organisation to take any of these actions represents an
offence for which a penalty is provided.
Division 8--Political objects funds
What is spending money on political objects
Clause 224 defines the meaning of the term "spending money on
political objects".
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Industrial Organisations
The term includes payments (including loans) made to or for--
· a political party
· the expenses of a candidate in respect of an election for Parliament
(Commonwealth or State) or local government
· the holding of meetings and distributing documents supporting a
candidate for an election
· registering electors or selecting candidates
· the holding of political meetings and distributing political
documents.
Political objects fund
Clause 225 requires, if an industrial organisation spends money on
political objects, that the organisation--
· have a political objects fund
· keep the fund separate from other funds of the organisation
· only spend money on political objects from the fund
Contributions by members for political objects
Clause 226 requires that, where an industrial organisation has a political
objects fund--
· any membership subscription must not include a contribution to
the fund
· a member must not be required to contribute to the fund unless
certain criteria are met namely, the organisation decides a separate
rate for the contribution, the member giving notice that the
member wants to make a contribution and the member has not
cancelled the notice
· political objects contributions can only be paid into that fund.
This provision has the effect of ensuring that a member of an
organisation is to voluntarily choose to contribute to a political objects fund.
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Industrial Organisations
Member may give direction about contribution
Clause 227 allows a member to give a written direction to an industrial
organisation on what political objects the member's contribution is to be
spent. This direction is to be made at the time of making the contribution.
The provision requires the organisation to pay money out of the political
objects fund from the member's contribution only as required by the
direction.
The provision allows the direction to be changed by giving notice to the
organisation before all the contribution is spent.
The effect of this provision is to ensure that a member's voluntary
contribution to the political objects fund is directed to a candidate or political
party of the member's choice.
No disadvantage to non-contributing members
Clause 228 provides that a member of an industrial organisation is not to
be excluded from any benefits of membership or disadvantaged in relation
to other members for not contributing to a political objects fund
Such members will not have an interest in the management or control of
the fund.
Payments from fund must be under a direction or approved
Clause 229 ensures that monies from an industrial organisation's
political objects fund can only be spent--
· as directed by a member under clause 227 ie. as directed by a
member from the member's contribution; or
· as approved by the state council of the organisation or similar
decision-making body.
Officers must ensure organisation complies with division
Clause 230 provides that officers of an industrial organisation are to
ensure that the organisation complies with the requirements of the division.
In this regard, officers may commit an offence of failing to ensure that an
organisation complies with the requirements, unless certain defences exist.
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Industrial Organisations
Such defences centre on the officer performing reasonable diligence in
having the organisation comply with this division and the officer
establishing he or she was not in a position of influence.
Filing statements of political expenditure
Clause 231 requires an industrial organisation to file with the industrial
registrar a statement, certified by a statutory declaration, detailing certain
payments made in a financial year on political objects.
The details of payments include the amount of each payment, the manner
each payment was made, to whom the payment was made and from which
political objects fund the payment was made (if the organisation has more
than 1 fund).
Details of payments made below certain nominated amounts do not have
to be filed so as to align with Electoral Act.
PART 13--PRESUMED VALIDITY OF
ORGANISATIONS' ACTIONS
Definitions for pt 13
Clause 232 defines "collective body", "invalidity" and "omission" for
the purposes of Part 13.
Validating actions taken in good faith
Clause 233 validates acts done in good faith by a collective body, or a
person holding office in an industrial organisation or branch.
Validating acts after 4 years
Clause 234 validates, for purposes of the current rules of an industrial
organisation or branch, any act after 4 years of the event taking place.
An event includes an action done by--
· persons purporting to act as a collective body of an organisation
or branch and exercising power under its rules; or
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· a person purporting to hold office in an organisation or branch
and exercising power under its rules.
Similar provision is made in relation to elections, appointments and rule
making or amending.
Industrial court decisions made during the 4 year period are not affected,
but provision extends to actions occurring before the commencement of the
legislation or occurring in relation to an association before it became an
industrial organisation.
PART 14--FREEDOM OF ASSOCIATION
Division 1--Preliminary
Objects of pt 14--Cwlth s 298A
Clause 235 provides that the objectives of this part are--
· that persons are free to join or not join industrial organisations of
their choice; and
· to ensure that persons are not discriminated against because they
are or are not members or officers of an organisation.
Definitions--Cwlth s 298B
Clause 236 defines a number of terms used expressly for the purposes of
this part.
· "industrial action"--refers, in part, to where work is performed in
a way different to the way it is customarily performed resulting
in a restriction in the performance of work and to certain bans,
limitations and conduct relating to work performed
· "industrial association"--means an association (or branch) of
employees, independent contractors or employers registered or
recognised as such under an industrial law, or a principal purpose
of which is the protection and promotion of the interests of
members in certain matters.
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It details the bodies or persons whose actions are taken to be actions done
by an industrial association for the purposes of this part. It provides
exceptions in respect of certain parties where reasonable steps have been
taken to prevent the action.
Division 2--Conduct by employers etc.
Dismissal etc. of members of industrial associations etc.--Cwlth
s 298K
Subclause 237 (1) prohibits an employer from--
· dismissing an employee
· injuring an employee in employment
· changing an employee's position to their detriment
· refusing to employ another person or discriminating against
another person in an offer of employment
for a prohibited reason (as defined in clause 238).
Subclause 237 (2) prohibits a person from
· terminating the contract of an independent contractor
· injuring an independent contractor in the terms of the contract
· changing the independent contractor's position to their detriment
· refusing to engage a person as an independent contractor
· discriminating against a person being engaged as an independent
contractor in the terms or conditions of the contract
for a prohibited reason (as defined in clause 238).
Prohibited reasons--Cwlth s 298L
Clause 238 defines the prohibited reasons for the conduct referred to in
Clause 237.
It details a list of matters which constitutes a prohibited reason if carried
out by the employee, independent contractor or other person concerned.
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It details instances where a threat is taken to have been made for a
prohibited reason.
Inducements to cease membership etc. of industrial association
etc.--Cwlth s 298M
Clause 239 prohibits an employer or person who has engaged an
independent contractor from inducing an employee or independent
contractor to stop being a member or officer of an industrial association.
Division 3--Conduct by employees etc.
Cessation of Work--Cwlth s 298N
Clause 240 provides a person must not cease work as an employee or
independent contractor because the employer or other person--
· is an officer or member of an industrial association
· is entitled to a benefit of an industrial instrument or order
· has made or proposed to make a certain inquiry or complaint
· is involved in proceedings under industrial law
· has given evidence in proceeding under industrial law.
Division 4--Conduct by industrial associations etc.
Industrial associations acting against employers--Cwlth s 298P
Subclause 241 (1) prohibits an industrial association from organising,
taking and threatening to take industrial action against an employer because
of the employer's involvement or non-involvement with an industrial
association.
Subclause 241 (2) prohibits an industrial association from organising,
taking and threatening to take industrial action against an employer with
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intent to coerce the employer or person--
· to become a member, or cease to be an officer or member or not
to become an officer or member of an industrial association
· because the employer or person is an officer, delegate or member
of an organisation or association that has applied to be registered
as an organisation.
Subclause 241 (3) prohibits an industrial association (or officer or
member) from
· advising, encouraging or inciting an employer; or
· organising, taking and threatening to take industrial action against
an employer with intent to coerce the employer
to take action in relation to a person that would contravene clause 237.
Subclause 241 (4) prohibits an industrial association (or officer or
member) from
· advising, encouraging or inciting an employer; or
· organising, taking and threatening to take industrial action against
an employer with intent to coerce the employer
to prejudice an employee who has failed to abide by a direction from the
association.
Subclause 241 (5) details the bodies or persons whose directions are
taken to have been given by an association for the purposes of (4) above.
Industrial associations acting against employees etc.--Cwlth s 298Q
Clause 242 provides that industrial associations, their officers and
members are prohibited from taking or threatening to take action which will
prejudice a person in employment or possible employment with intent--
· to coerce a person to join in industrial action
· to prevent a person from applying for a secret ballot
· to coerce a person to join, or not to join an industrial association.
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Industrial associations acting against members--Cwlth s 298R
Clause 243 prohibits an industrial association from imposing or
threatening to impose a penalty on a member--
· to coerce that member to take industrial action
· because the member has not taken industrial action
· because the member proposes or has made an application for a
secret ballot
· because the member proposes to or has participated in a secret
ballot.
Industrial associations acting against independent contractors
etc.--Cwlth s 298S
Clause 244 provides that industrial associations, their officers and
members are prohibited from--
· advising, encouraging or inciting persons to take discriminatory
action against an eligible person because that person is not a
member of an industrial association
· threatening or taking industrial action to coerce an employer to
take discriminatory action against an eligible person because they
are not a member of an industrial association or
· threatening or taking industrial action to coerce a person to
become a member of an industrial association.
Division 5--Remedies for breaches of this part
Applications to the court--Cwlth s 298T
Clause 245 provides that an application to the industrial court for an order
under this part may be made by--
· the person (including an employer or employee) against whom
the conduct has been or would be carried out
· an industrial association
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· the employment advocate
· other prescribed persons.
Orders that the court may make--Cwlth s 298U
Clause 246 provides that if the industrial court has found there has been a
contravention of this part, it may order--
· imposition of a penalty of 135 penalty in respect of incorporated
body or 27 penalty units in other cases
· reinstatement to the position or similar position or as an
independent contractor
· not to carry out a threat or make any further
· injunctions to stop conduct or to correct its effects
· consequential orders.
The court is to give any person against whom an order is sought an
opportunity to be heard.
In imposing the penalty, the court may order that the penalty, or part
thereof, be paid to the consolidated fund or an industrial organisation or
individual.
Proof not required of the reason for, or the intention of, conduct--
Cwlth s 298V
Clause 247 provides that if it is alleged that conduct was or is carried out
for a particular purpose and to do so would be in contravention of this part,
then it is presumed to be the case unless proven to the contrary.
Division 6--Miscellaneous
Provisions of industrial instruments requiring or permitting conduct
in contravention of this part--Cwlth s 298Y
Clause 248 ensures that any provision in an award, agreement or
arrangement that contravenes this part has no effect in law.
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PART 15--OTHER OFFENCES
Division 1--Specific offences
Offence about organisation's property
Clause 249 provides that a person must not obtain possession of an
industrial organisation's property through false representation or imposition.
A person in possession of an organisation's property is not to withhold it
from a person entitled to possess it, fraudulently misapply it, or willfully
use it for a purpose not authorised under the organisation's rules.
A court is empowered to order the property to be delivered up as
directed, the repayment of an amount found to be withheld, fraudulently
misapplied or improperly applied.
Preventing elections
Clause 250 makes it an offence for a person to prevent a person from
conducting an election or a ballot.
Offences about persons conducting ballot
Clause 251 sets out certain offences in respect of elections or ballots for a
proposed amalgamation or a proposed withdrawal from an amalgamation.
It is an offence to cause detriment to another person because that person has
applied for an election enquiry.
Officer to act honestly etc.
Clause 252 requires an officer of an industrial organisation, while
performing functions in relation to the financial management of the
organisation, to act honestly and with a reasonable degree of care and
diligence.
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Industrial Organisations
Officers with material personal interests
Clause 253 ensures that--
· an officer of an industrial organisation must disclose any material
personal interest relating to the organisation's financial
management to the organisation's management committee where
the officer performs functions relating to the financial
management of the organisation
· where the material personal interest is to be considered at an
organisation's annual general meeting or management committee
meeting, the officer is not permitted to vote on that matter or be at
the meeting when the matter is considered.
Proceedings not affected
Clause 254 provides that no restriction exists in respect of taking a
proceeding against an officer of an industrial organisation for breach of
duty.
Division 2--Parties to offences
Parties to offences
Clause 255 provides that an industrial organisation or other person is
taken to have committed an offence where the organisation or other person
takes part in the commission of an offence, or counsels, procures or aids in
the commission of offence, or encourages the commission of an offence or
is concerned directly, or indirectly in the commission of an offence.
Division 3--Attempts to commit offences
Attempt to commit offence
Clause 256 makes it an offence for a person to attempt to commit an
offence under this legislation and the person is liable to the same penalty as
if they had committed the offence.
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PART 16--APPEALS
Division 1--Appeals to Court of Appeal
Appeal from court to Court of Appeal
Clause 257 provides that a defendant aggrieved--
· of a decision of the full industrial court for nominated offences; or
· from a decision to cancel or suspend an industrial organisation's
registration; or
· of a decision of the court in a proceeding to punish for contempt
of court
may appeal to the Court of Appeal (Supreme Court).
In the appeal, the validity of the proceeding or the decision of the
industrial relations commission or industrial magistrate cannot be called into
question.
Division 2--Appeals to Industrial Court
Appeal from commission, magistrate or registrar to court
Clause 258 provides for the following appeals--
· to the full industrial court on a decision of the industrial relations
commission on an application for registration of an industrial
organisation or an objection to the application for registration
· to the industrial court against the decision of the commission or
industrial registrar on the grounds of an error of law excess, or
want, of jurisdiction
· to the industrial court against certain decisions of an industrial
magistrate.
An appeal to the court can not be made on decisions of the full bench of
the commission on appeal from a decision of a member of the commission
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Industrial Organisations
or certain decisions of the registrar. This provision aligns with clause 263
which establishes that a decision of a full bench on appeal in these matters is
final.
The powers of the court on appeal are set out.
Court's discretion on penalty on appeal
Clause 259 empowers the industrial court to either increase or reduce a
penalty imposed on confirmation of a conviction on appeal.
Division 3--Appeals to Industrial Relations Commission
Appeals from commissioner to full bench with leave
Clause 260 provides for an appeal (other than on the grounds of an error
of law or excess, or want, of jurisdiction) from a decision of a member of
the industrial relations commission to the full bench with the president's
leave. The president is only to give leave where the matter is of sufficient
importance to be in the public interest.
The powers of the full bench on appeal are stipulated.
Appeal from registrar to full bench
Clause 261 allows for appeals (other than on grounds of an error of law
or excess, or want, of jurisdiction) to the full bench against certain decisions
of the industrial registrar.
The powers of the full bench on such appeals are stipulated.
President may stay decisions when leave sought
Clause 262 empowers the president to grant an order to stay the
operation of a decision of the industrial relations commission for which
leave has been sought to appeal to the full bench.
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Industrial Organisations
Decisions on appeal that are final
Clause 263 provides that decisions of the full bench on appeal against a
decision of a member of the industrial relations commission and certain
decisions of the industrial registrar are final.
Division 4--Appeals to both Industrial Court and Industrial Relations
Commission
Appeals from commissioner or registrar to both court and commission
Clause 264 allows a person to lodge an appeal against a decision of a
member of the industrial relations commission or the industrial registrar to
both the industrial court and the full bench of the commission in accordance
with their jurisdictions.
The president of the industrial court decides the order in which the
appeals are to heard.
Division 5--General
Nature of appeal
Clause 265 provides that an appeal to the industrial court or industrial
relations commission is by way of re-hearing on the record. The court is
empowered to hear additional evidence or to hear the evidence afresh.
Time limited for appeal
Clause 266 provides that an appeal must be commenced within 21 days
of the decision being given at a hearing or of the release of the decision by
the industrial registrar.
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PART 17--JURISDICTION AND PROCEDURE
Division 1--Jurisdiction
Jurisdiction of the full court
Clause 267 confers jurisdiction on the full court to hear and determine--
· proceedings for an offence under this legislation with a penalty of
more than 40 penalty units and the offence can not be heard by an
industrial magistrate
· proceedings to cancel or suspend an industrial organisation's
registration
· proceedings for offences under nominated clauses.
Court's jurisdiction exclusive
Clause 268 provides for the exclusive nature of the jurisdiction of the
industrial court.
President's jurisdiction
Clause 269 specifies that the president of the industrial court when sitting
alone has all the jurisdiction and powers conferred on the industrial court,
unless otherwise prescribed in legislation.
Commission's jurisdiction is exclusive
Clause 270 provides for the exclusive nature of the jurisdiction of the
industrial relations commission, unless otherwise prescribed in this
legislation.
Magistrate's jurisdiction
Clause 271 confers jurisdiction on an industrial magistrate to hear and
determine proceedings about--
· an offence under this legislation with a maximum penalty of 40
penalty units unless the legislation provides otherwise
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· recovering money owing to an industrial organisation under its
rules from a member or former member
· exercising powers conferred in respect of conscientious objection
to organisation membership.
Magistrate's jurisdiction exclusive
Clause 272 provides for the exclusive nature of the jurisdiction of an
industrial magistrate, unless otherwise prescribed in this legislation.
Division 2--Procedure
Evidence, powers and procedure follow Workplace Relations Act 1996
Clause 273 provides that where the Court of Appeal, full court, court, full
bench, commission, an industrial magistrate or industrial registrar has
jurisdiction to hear and determine proceedings, the provisions of the
Workplace Relations Act 1996 outlined in schedule 1 and the rules of court
made under that Act apply unless otherwise provided under this legislation.
Performance of commission's functions
Clause 274 requires the industrial relations commission to perform its
functions in a way that-
· furthers the objects of this legislation
· avoids unnecessary technicalities and facilitates the fair and
practical conduct of proceedings.
Recovery of amounts under orders
Clause 275 deals with the recovery of moneys where the industrial court
or industrial relations commission orders payment of a sum.
The industrial registrar may issue a certificate which, if filed in any court
of competent jurisdiction, is evidence of the initial order which then may be
enforced by that court accordingly.
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Industrial Organisations
Recovery of amounts from organisation
Clause 276 provides that recovery of any penalty or any sum ordered to
be paid by an industrial organisation can be enforced against the
organisation's property.
Recovering member's liabilities to organisation
Clause 277 enables an industrial organisation to recover from a member
certain moneys payable by the member under the rules of the organisation.
In respect of a member's resignation, the liability of the member to pay
subscriptions, fees etc. is limited to 1 year prior to the membership ending.
This action must be taken before an industrial magistrate within three
years of the amount becoming payable.
Division 3--Evidentiary provisions
Certificate evidence in applications about office holding
Clause 278 provides for the evidentiary nature of a certificate regarding
the conviction, acquittal and release of a person from prison and relates to
provisions dealing with eligibility for office in an industrial organisation.
Evidentiary provision--elections by registrar
Clause 279 provides that certain records of members of industrial
organisations are to be evidence for purposes of a request for the industrial
registrar to conduct an election for office in an organisation.
Evidentiary provisions--general
Clause 280 prescribes the evidentiary value of certain records of
industrial organisations for purposes of proceedings under the legislation.
Particular offences may be charged in 1 complaint
Clause 281 specifies those offences that may be charged in a single
complaint as a facilitative measure.
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PART 18--MISCELLANEOUS
No action for defamation in certain cases
Clause 282 prevents any action for defamation civil or criminal against
the State, an electoral officer, returning officer or a person acting at the
request or direction of an electoral officer, in relation to the printing or
publication of a document by the electoral officer, returning officer or
person in the course of the conduct of--
· an election
· a proposed amalgamation of industrial organisations
· a proposed withdrawal from amalgamation of organisations.
The intent is to protect electoral or returning officers, printers etc, who are
publishing or printing material that has been authorised by a third party.
References to making false or misleading statements
Clause 283 extends the meaning of a false or misleading statement to
include a reckless statement.
References to engaging in conduct
Clause 284 provides that a reference to engaging in conduct includes a
reference to a party being indirectly concerned in the conduct.
Filing details of loans, grants and donations
Clause 285 requires the preparation of annual statements relating to
certain loans, grants and donations made by industrial organisations and
their branches and the lodging of such statements with the industrial
registrar.
Documents open to inspection
Clause 286 enables any person, on payment of a fee, to inspect the list of
members and officers, and the rules, of an industrial organisation held by
the industrial registrar.
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Industrial Organisations
A copy of the organisation's rules may be obtained on payment of a
prescribed fee.
Nomination for amounts payable on member's death
Clause 287 provides that a member of an industrial organisation may
nominate someone to receive any money payable on the member's death.
Notices and applications to be written
Clause 288 establishes that notices and applications required under the
legislation must be written.
Functions and powers of registrar
Clause 289 prescribes the functions and powers of the industrial registrar
which include--
· administering the registry
· for the industrial court and industrial relations commission,
performing functions and exercising powers under a regulation or
rules of court
· any other function prescribed under this legislation.
In the exercise of the functions for the court and/or commission, the
registrar must comply with the direction given by the president or
commission member.
The provision requires the registrar to keep a register of industrial
organisations.
Delegation by registrar
Clause 290 provides for the delegation of powers of the industrial
registrar.
Protection from liability
Clause 291 establishes that certain officials are not civilly liable for any
act done or omission made without negligence while performing official
duties.
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Industrial Organisations
Stamp duty
Clause 292 provides that stamp duty is not payable in certain instances.
Inaccurate descriptions
Clause 293 deals with the effect of certain inaccuracies in documents.
Regulation-making power
Clause 294 provides for the making of regulations under the legislation.
PART 19--SAVINGS, TRANSITIONAL AND OTHER
AMENDMENTS
Definition for pt 19
Clause 295 defines the meaning of the term "former industrial Act".
Continued registration of organisations
Clause 296 provides for the continued registration under this legislation
of an industrial organisation registered under all previous industrial
legislation.
Registrar may amend name of union
Clause 297 allows an industrial organisation to make application to
change the term "union" to "organisation" in its name.
Savings--agreements etc.
Clause 298 provides for the continuation under this legislation of any
agreement, decision, exemption, judgement, notice, order, ruling, permit or
act of authority made, given, done or approved under the repealed Act for
which there is a corresponding provision under this Act.
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Industrial Organisations
Savings--proceedings
Clause 299 provides for the continuation of a proceeding started and not
finished before the commencement of this legislation.
References to former industrial Acts
Clause 300 allows for a reference to a provision in a "former industrial
Act" (as defined in this clause) to be a reference to a corresponding
provision in this legislation where appropriate.
Transitional provision about rules
Clause 301 gives industrial organisations a period of 18 months within
which to comply with new rule requirements under this legislation.
Cost of copy of rules
Clause 302 has the effect of saving an order in council that prescribes a
fee of $5 is payable for a copy of the rules of an industrial organisation
obtained from the organisation. The provision will expire 2 years after its
commencement within which period a corresponding regulation will be
made.
Appointments continue
Clause 303 allows for a person who holds an office or appointment
under the repealed Act to continue to hold the appointment or office under
this legislation.
Amended Acts--sch 2
Clause 304 provides for the Industrial Relations (Protection from
Invalidities) Act to be amended in schedule 2 as detailed.
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Industrial Organisations
SCHEDULE 1
PROVISIONS OF WORKPLACE RELATIONS ACT
1996 THAT APPLY TO PROCEEDINGS UNDER THIS
ACT
This schedule captures provisions of the Workplace Relations Act 1996
regarding evidence, powers and procedure that apply for purposes of this
legislation.
The head of power for this schedule is contained in clause 273.
SCHEDULE 2
AMENDMENT OF INDUSTRIAL RELATIONS
(PROTECTION FROM INVALIDITIES) ACT 1991
Clause 1--Section 3
This clause provides that the Industrial Relations (Protection from
Invalidities) Act 1991 is to be read and construed as part of the Industrial
Relations Act 1996 and Workplace Relations Act 1996 rather than the
Industrial Relations Act 1990.
Clauses 2,3 and 4--Section 4
These clauses amend the existing section 4 Interpretation.
The existing definitions for `Commonwealth Act', `federal organisation'
and `previous act' are repealed and replaced by definitions of these that rely
on the Commonwealth Workplace Relations Act, the Industrial
Organisations Act 1996 and the Workplace Relations Act 1996. New
definitions are inserted.
Clause 5--Section 4
This clause omits section 4(2).
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Industrial Organisations
Clause 6--Section 6
This clause repeals section 6(3) and inserts a similarly numbered section.
The new section includes references to the new Industrial Organisations
Act 1996 and recasts the old sub-section in clearer language.
Clause 7--Section 6
This clause amends section 6(6) by establishing beyond doubt that a
certificate may apply to invalidities that occur before or after the issue of the
certificate or before or after the commencement of the invalidities
legislation.
Clause 8--Section 6
This clause omits sections 6(8) and 6(9). As a result it removes the need
for acts covered by a certificate to have been done in good faith. This is
necessary if provision is to be made for specified invalidities after a
certificate is issued.
Clause 9--Section 8
This clause amends section 8(a) to provide that the commission may
issue a certificate if it is satisfied that an invalidity may exist either before or
after the issue. This allows a certificate to operate prospectively.
Clause 10--Section 8
This clause amends section 8(b) so that an organisation's rules,
administrative structure, records and other relevant matters that generally
provide for the proper protection and representations of the interests of the
members are likely to continue to do so.
This allows the commission to be satisfied that the required arrangements
are likely to continue as the basis for prospective operation of a certificate.
Clause 11- Section 8
This clause amends section 8(c) so that the requirement that for an
invalidity referred to in section 6(4) the actions taken in admitting members
were not carried out to prejudice the interests of another organisation is
extended to provide that such actions are unlikely to be carried out for that
purpose in the future.
Clause 12--Section 9
This clause amends section 9(3) to delete a reference to a section in the
Industrial Relations Act 1990 and replace it with the reference to the
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Industrial Organisations
equivalent section in the Workplace Relations Act 1996. This refers to
intervention by the State Minister.
Clause 13--Section 10
This clause amends section 10(1) to allow the commission to issue a
provisional certificate where it is not satisfied that the specified requirements
appertaining to an industrial organisation are unlikely to provide as required.
The current sub-section refers just to `provision' with no future dimension.
Clause 14--Section 11
This clause amends section 11(1) to up date the Act reference.
Clause 15--Section 13
This clause amends sections 13(1) and (2) to change the reference to
section 13.74 of the Industrial Relations Act 1990 to the equivalent
reference in the Industrial Organisations Act 1996.
Clause 16--Section 13
This clause amends section 13(2) to replace the reference to the Industrial
Relations Act 1990 with a reference to the Industrial Organisations Act
1996.
Clause 17--Section 15
This clause amends section 15 to replace `Industrial Relations Act 1990'
with `Industrial Organisations Act 1996' or the `Workplace Relations Act
1996'.
Clause 18--Section 15
This clause amends section 15 so that the reference to the Industrial
Relations Act 1990 is replaced with a reference to the `Industrial Relations
Act 1996' or the `Workplace Relations Act 1996'.
Clause 19--Section 16
This clause amends sections 16(1) and 16(2) to replace the reference to
the `Industrial Relations Act 1990' with `Industrial Organisations Act
1996' or the `Workplace Relations Act 1996'.
Clause 20--New sections 17-- 20
This clause inserts a number of new sections.
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Industrial Organisations
Section 17 provides--
· references to certain terms; and
· the section expires on the day of the next reprint of the Act
produced under the Reprints Act 1992, unless it sooner expires
under section 18.
Section 18 provides that the invalidities legislation expires 18 months
after section 3 (objects of act) of the Industrial Organisations Act 1996
commences.
Section 19 provides that while a certificate expires when this Act expires
it continues to apply to a specified invalidity which happened before the
expiry.
The section clarifies that `certificate' includes a `provisional certificate'
and a `provisional certificate made absolute'.
Section 20 applies where an application has been made for a certificate
before the invalidities legislation expires and the commission has not
decided the application or issued a provisional certificate. In these
circumstances the commission may only issue a certificate or make a
provisional certificate absolute for an invalidity before the expiry.
SCHEDULE 3
DICTIONARY
The meaning of terms commonly used in the Bill are defined in this
schedule. In some instances terms have been signposted to relevant clauses
in the Bill which reflect the relevant meaning.
© The State of Queensland 1996