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2002
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF REPRESENTATIVES
WORKPLACE
RELATIONS (REGISTRATION AND ACCOUNTABILITY OF ORGANISATIONS) BILL
2002
EXPLANATORY MEMORANDUM
(Circulated by
authority of the Minister for Employment and Workplace Relations, the Honourable
Tony Abbott MP)
WORKPLACE RELATIONS (REGISTRATION AND ACCOUNTABILITY OF ORGANISATIONS) BILL 2002
OUTLINE
The Act proposes to:
(a) incorporate in
one instrument all legislative provisions relating to the registration,
deregistration, amalgamation and disamalgamation of registered
organisations;
(b) regulate the rules of these
organisations;
(c) provide for improved democratic control of
organisations by regulating the conduct of elections for positions in
organisations, and providing criteria for disqualification from office in an
organisation;
(d) improve the accountability of registered organisations
by modernising the requirements for record-keeping, financial reporting, and
access to financial records;
(e) regulate the conduct of officers and
employees of registered organisations; and
(f) provide for penalties,
including civil penalties and civil compensation, with respect to breaches of
the provisions of the Act.
The Act is consistent with the
Government’s commitment to provide greater choice and flexibility to
registered organisations and their members.
The Act replicates many
provisions relating to registered organisations in the Workplace Relations
Act 1996 (WR Act), with some amendments.
The Act would change the
provisions relating to registration, amalagamation and disamalgamation of
organisations, the processes for conducting elections for offices in registered
organisations, the financial accounting and reporting responsibilities of
organisations, and establish duties upon officials and employees of
organisations. In particular, the Act would:
• introduce
prohibitions on discriminatory conduct taken against a person who is involved in
the formation or registration of a new employee association;
• make
technical improvements for making applications to withdraw from an amalgamation
of two or more organisations and provide in the Act for matters currently dealt
with by the Workplace Relations Regulations;
• align financial
accounting and reporting requirements of organisations with those applicable
under the Corporations Act, including changes to:
- the manner of the
preparation of accounts and reporting processes;
- the provision of
information to members and access by members to financial information, for
example by introducing requirements to comply with Australian Accounting
Standards and to provide general purpose financial reports;
and
• establish a range of statutory fiduciary duties for officials
of organisations in relation to financial management functions broadly in line
with those that apply to company directors and employees under the Corporations
Act;
• establish duties for officials and employees of
organisations in relation to compliance with orders and directions of the
Australian Industrial Relations Commission and the Federal
Court;
• empower the Federal Court to invalidate rules of
organisations which are discriminatory;
• require organisations to
regularly purge their records of non-financial members so as to improve records
used for industrial elections and reporting purposes;
• introduce a
penalty for giving false or misleading information concerning
resignation;
• allow for regulations to be made to require
organisations to provide information to members on request concerning payments
made in relation to payroll deduction arrangements for union
dues;
• introduce civil penalties for breaches of procedural
requirements in relation to elections;
• replace existing offence
provisions concerning breaches of financial accounting, reporting and fiduciary
duties with civil penalties, whilst retaining criminal penalties for the most
serious breaches; and
• bring offence provisions into line with
other Commonwealth legislation.
The Act is made up of 11
Chapters:
Chapter 1 contains the principal objects of the Act and
definitions. The principal objects of the Act are:
• to ensure
that employee and employer organisations registered under this Act are
representative of and accountable to their members, and are able to operate
effectively;
• to encourage members to participate in the affairs
of organisations to which they belong;
• to encourage the efficient
management of organisations and high standards of accountability of
organisations to their members; and
• to provide for the democratic
functioning and control of organisations.
Chapter 2 deals with the
registration and cancellation of registration of organisations of employers and
employees. It provides for:
• criteria for registration as an
organisation and proscribes discriminatory conduct against a person involved in
the formation or registration of an employee association;
• the
Federal Court to cancel the registration of an organisation on certain grounds,
for example, because that the organisation or a substantial number of its
members has engaged in industrial action having a substantial adverse effect on
the safety, health or welfare of the community;
• the Australian
Industrial Relations Commission (the Commission) to cancel registration on
technical grounds, for example, when an organisation is
defunct.
Chapter 3 deals with the amalgamation of two or more
registered organisations and subsequent withdrawal from an amalgamation,
including the procedures to be followed and ballots of members that must be
conducted. It also deals with the consequences of amalgamation and withdrawal
from amalgamation, including in relation to ownership of assets and liabilities
and respondency to awards and agreements.
Chapter 4 deals with the
representation rights of unions and orders which the Commission may make in
relation to a demarcation dispute.
Chapter 5 concerns rules of
organisations and what they are required or permitted to cover, and procedures
for alteration of rules. It allows the Minister to develop model rules for
organisations in relation to elections and the conduct of officers and
employees. It also contains a requirement that the rules of organisations must
not be discriminatory.
Chapter 6 deals with rights to membership
of an organisation (and conscientious objection to membership), and resignation
of membership. It also requires that organisations periodically purge the names
of non-financial members from their register of members.
Chapter 7
deals with elections for positions in an organisation, inquiries by the Federal
Court into elections, and disqualification from holding office in an
organisation.
Chapter 8 contains financial and reporting
requirements for organisations, including:
• requirements to keep
records, including storage and access obligations;
• requirements
to lodge information with the Industrial Registrar;
and
• requirements to keep financial and accounting records, the
preparation of financial accounting reports and the auditing of such reports,
reporting requirements and members’ rights of access to financial
information and records.
Chapter 9 sets out the duties of officers
and employees of organisations in relation to the financial management of an
organisation or branch. It also sets out their general duties in relation to
orders or directions of the Federal Court or of the
Commission.
Chapter 10 sets out penalties for contravention of
civil penalty provisions, orders that the Federal Court may make, and who may
apply for these orders.
Chapter 11 deals with miscellaneous
matters, including:
• validation of certain otherwise invalid
acts;
• financial assistance for applicants in proceedings under
the Act in cases of hardship;
• the conduct of investigations about
compliance with financial accountability requirements; and
• the
power to make regulations.
The Act will have some financial implications for the Industrial
Registry. The additional responsibilities given to the Registry for developing
and maintaining new financial regulation requirements and prosecuting new
penalty provisions is estimated to result in additional costs of $63,000 a
year.
1.1 This clause is a formal provision specifying the short title of the
Act as the Workplace Relations (Registration and Accountability of
Organisations) Act 2002.
1.2 This clause sets out a table, the effect of which will be that, other
than clauses 1 and 2 (which will commence on the day on which the Act receives
Royal Assent), the remaining provisions of the Act will come into operation on a
single day to be fixed by Proclamation. Subclause (3) provides a default
commencement date for these remaining provisions. If they have not commenced
within 6 months of the date that the Act receives the Royal Assent, they will
commence on the first day after that period.
1.3 This clause provides that the Crown, in all its capacities, is
intended to be bound by the Act. The clause also provides that nothing in the
Act renders the Crown liable to be prosecuted for an offence under the
Act.
1.4 This clause provides an outline of the contents of the
chapter.
1.5 This clause sets out the principal objects of the Act. These are
designed to:
• ensure that employee and employer organisations
registered under this Act are representative of and accountable to their
members, and are able to operate effectively;
• encourage members
to participate in the affairs of organisations to which they
belong;
• encourage the efficient management of organisations and
high standards of accountability of organisations to their members;
and
• provide for the democratic functioning and control of
organisations.
1.6 The note to this clause makes it clear that the WR Act
contains many provisions that affect the operation of the Act.
1.7 This clause defines a number of terms used in the Act.
1.8 This clause defines ‘industrial action’ widely. Under
paragraphs (e) and (f) of the definition, conduct described in the definition is
not to be regarded as industrial action by employees where agreed to or
authorised by their employer, or as industrial action by an employer where
agreed to or authorised by, or on behalf of, employees of the employer.
1.9 The definition is the same as in subsection 4(1) of the WR
Act.
1.10 This clause defines ‘industrial dispute’ in terms which
reflect the definitions in subsections 4(1) and 4(3) and section 5 of the WR
Act. Section 5 of the WR Act extends the meaning of industrial dispute to
include reference to specified industrial issues - matters pertaining to the
relationship between waterside and maritime workers and flight crew officers and
their respective employers so far as these relate to international or interstate
trade or commerce or trade or commerce within a territory, and matters
pertaining to the relation between employers and employees in public sector
employment.
Clause 9 – Meaning of
office
1.11 This clause defines ‘office’. The term
‘office’ is defined to cover various specified positions in
organisations or their branches and certain other positions, including those the
holders of which have direct responsibilities relating to the management, policy
determination or rule-making and rule enforcement functions of organisations or
branches. The Act contains a number of provisions relating to the election of
holders of such offices, and to their rights and responsibilities. The
definition excludes persons who carry out specified functions of the kind
mentioned only under direction to implement existing policy or
decisions.
1.12 This clause defines ‘forging’ and
‘uttering’.
1.13 A person is said to have forged a document
if the person makes a document known to be false or changes a genuine document
(without authority) with the intent that:
• the false or altered
document be used, acted on, or accepted as genuine to the prejudice of another
person; or
• another person in the belief that the document is
genuine, may be induced to do an act or refrain from doing an act;
or
• a computer or other device should respond to the false or
altered document as a genuine document to the prejudice of another person or
with the result that a person is induced to do or refrain from doing an
act.
1.14 A person is taken to utter a forged document if the person uses
or attempts to use or deals with it, or attempts to induce another person to
use, deal with, act upon or accept it.
1.15 This clause ensures that a reference to a ballot or election
conducted by the Australian Electoral Commission (AEC), or a reference to an
opinion or state of mind of the AEC, is taken to include a reference to an
electoral official or a person authorised to carry out the functions of the
AEC.
1.16 This clause provides that a reference to persons eligible to be
members of an organisation include those eligible to be members by virtue of an
agreement between a federally registered organisation and a state union under
subclause 151(1). This reflects subsection 4(5) of the WR Act.
1.17 This clause outlines the functions of the Industrial Registry.
Subclause (1) provides that these functions are to keep a register of
organisations and to provide advice and assistance to organisations in relation
to their rights and obligations under the Act.
1.18 Subclause (2)
provides that the register of organisations is to be kept in a form deemed
appropriate by the Industrial Registrar.
1.19 The obligation to enter
particulars in the register is set out in clause 26.
1.20 This clause empowers the President of the Australian Industrial
Relations Commission (the Commission) to establish a specialist Organisations
Panel of commissioners.
Clause 15 – Disapplication
of Part 2.5 of Criminal Code
1.21 This clause provides that
Part 2.5 of the Criminal Code, which deals with corporate criminal
responsibility, does not apply to offences against this Act. Note 1 to this
clause refers to the definition of “this Act” in section 6 as
including regulations made under it. Note 2 refers to clause 344, which deals
with corporate criminal responsibility for the purposes of the Act.
1.22 This clause explains the operation of the offence provisions.
Offence provisions are those provisions with a maximum penalty specified at the
foot of each section or subsection as the case may be. A contravention of an
offence provision is punishable by a penalty not exceeding the specified
penalty. The value of a penalty unit is currently set at $110.
2.1 Chapter 2 deals with the registration of organisations, and sets out
the types of associations that may apply for registration, the criteria for
registration, prohibited conduct in relation to the formation or registration of
unions, and the registration process (Part 2). The Chapter also deals with the
cancellation of registration of organisations, including the power of the
Federal Court to order cancellation on certain grounds, the power of the
Commission to cancel registration on technical grounds, and the consequences of
cancellation (Part 3).
2.2 Currently, Division 1 of Part IX of the WR
Act deals with the registration of organisations and Part X of the WR Act with
cancellation.
2.3 Chapter 2 of the Act is designed to simplify the
registration process for organisations in order to facilitate the registration
of a diverse range of organisations thereby providing greater choice.
2.4 This clause provides an outline of the contents of the
Chapter.
2.5 Part 2 deals with the types of association that may apply for
registration, the criteria for registration and prohibitions of certain conduct
in relation to registration.
2.6 This clause specifies the types of associations which may apply for
registration, namely:
• any association of employers who is capable
of being engaged in an industrial dispute as defined in clause
8;
• any association of employees that is capable of being engaged
in such an industrial dispute; and
• any association of employees
performing work in the same enterprise.
2.7 An association of employers
may also have as members:
• officers of the
association;
• persons, other than employees, who carry on a
business; and
• persons who, when admitted to membership, were
employers and who have not resigned or had their membership
terminated.
2.8 However, where the association admits to membership
persons within the last two mentioned categories, it is required to be
effectively representative of members who are employers.
2.9 An
association of employees is also permitted to have as
members:
• officers of the association;
• independent
contractors who, if they were employees, would be eligible for membership of the
association; and
• certain persons specified in Schedule 1 of the
Act, namely, persons who are deemed to be employees under specified State
laws.
2.10 However, where persons coming within the last two mentioned
categories are members, the association must, under subclause 18(2), be
effectively representative of the members who are employees.
2.11 This
clause replicates section 188 of the WR Act.
2.12 This clause sets out the criteria for registration of employer
associations and employee associations, other than enterprise associations. The
criteria for registration for an enterprise association are covered by clause
20.
2.13 Subclause (1) provides that the Commission must grant an
application for registration made by an association (other than an enterprise
association) if, and only if, all the relevant criteria set out are
met:
• the association is a genuine association coming within
clause 18 for furthering or protecting the interests of its members;
• in the case of an employee association, the association is free
from control or improper influence by an employer or by an organisation or
association of employers;
• the association satisfies the minimum
membership requirements;
• the Commission is satisfied that the
association will conduct its affairs in a manner that meets the obligations of
an organisation under the Act and the WR Act (having regard, under subclause
(4), as to whether any recent conduct by the association or its members would
have provided grounds for its de-registration under clause 28 had the
association been registered at the time the conduct took
place);
• the rules of the applicant association meet the
requirements of the Act (the rules of organisations are dealt with in Chapter 5
of the Act);
• the name of the association is not the same, or
confusingly similar to that of an organisation registered under the
Act;
• a resolution in favour of registration must have passed
under the rules of an association by a majority of its members at a general
meeting or an absolute majority of its committee of
management;
• the registration of the association would further the
objects of the Act and the WR Act; and
• there is no organisation
to which the members of the association could more conveniently belong and which
would more effectively represent the members of the association (this is
designed to minimise demarcation issues between registered organisations and
operates subject to subclause (2), which allows the Commission to accept an
undertaking from an association to avoid demarcation disputes which might
otherwise arise, and subclause (3) which requires the Commission to have regard
to whether the representation is consistent with the objects of the Act and the
WR Act).
2.14 This clause replicates the requirements of subsections
189(1), (2) (3) and (5) of the WR Act.
2.15 Subclause (1) provides that the Commission must grant an application
for registration made by an enterprise association if, and only if, all the
criteria set out below are met:
• the association is a genuine
association for furthering and protecting the interests of its members;
• the association is free from control or improper influence by an
employer or any person with an interest in the enterprise or any
organisation;
• the association has at least 50 members who are
employees;
• the Commission is satisfied that the association will
conduct its affairs in a manner that meets the obligations of an association
under the Act and the WR Act (having regard, under subclause (2), to whether any
recent conduct by the association or its members would have provided grounds for
its de-registration under clause 28 had the association been registered at the
time the conduct took place);
• the rules of the applicant
association must meet the requirements of the Act (the rules of organisations
are dealt with in Chapter 5 of the Act);
• the name of the
association is not the same, or confusingly similar to that of an organisation
registered under the Act;
• the Commission is satisfied that a
majority of persons eligible to be members support its registration as an
organisation;
• a resolution in favour of registration must have
been passed under the rules of the association by a majority of its members at a
general meeting or by an absolute majority of the committee of management;
and
• the registration of the association would further the objects
of the Act and the WR Act.
2.16 Division 3 prohibits certain conduct by employers, organisations and
members relating to the formation or registration of employee associations. It
also enables the Federal Court to impose penalties or orders it considers
necessary on persons who engage in prohibited conduct.
Clause 21 -
Prohibited conduct – employers
2.17 This clause proscribes the
following conduct by employers in relation to employees or independent
contractors for a prohibited reason as defined in subclause
(3):
• in the case of employees, the dismissal of an employee,
injuring an employee in his or her employment, altering an employee’s
position to the employee’s prejudice, and discriminating against an
employee (subclause (1)); and
• in the case of independent
contractors, the termination of a contract for services, injuring the
independent contractor in relation to the terms and conditions of the contract
for services, altering the independent contractor’s position to the
independent contractor’s prejudice, and discriminating against an
independent contractor (subclause (2)).
2.18 Subclause (3) sets out the
reasons that are prohibited from being the basis for the conduct in subclauses
(1) and (2), namely that the conduct was carried out because the employee or
independent contractor has done or omitted to do any act relating to the
formation or registration of an association, or in connection with or
preparation for such an act or omission.
2.19 Subclause (4) gives
examples of the acts or omissions contemplated in subclause (3).
2.20 This clause prohibits certain conduct by organisations against
employers, employees and independent contractors, designed to prevent the
formation or registration of an association.
2.21 Subclause (1) prohibits
an organisation or officer or member of an organisation taking, or threatening
to take, industrial action with the aim of coercing a person to contravene
clause 21.
2.22 Subclause (2) prohibits an organisation, or a member of
officer of an organisation, from taking, or threatening to take, any action for
a ‘prohibited reason’ or for reasons that include a prohibited
reason. The definition of ‘prohibited reason’ in subclause (3) is
the same as its definition in subclause 21(3).
2.23 Subclause (4) adopts
the list of examples given in subclause 21(4) as examples of conduct to which
subclause (3) applies.
2.24 Subclause (5) prohibits an organisation, or
an officer or member of the organisation, from taking or threatening to take
adverse action because the member is connected with an act or omission relating
to the formation or registration of an association.
2.25 This clause gives the Federal Court the power to make orders in
respect of contraventions of clauses 21 and 22. The orders that the Federal
Court may make include:
• a penalty of up to 100 penalty units for
a body corporate or 20 penalty units in any other case (e.g. on a person or
unincorporated organisation);
• an order prohibiting a person or
organisation from carrying out a threat or making any further
threat;
• injunctions and any other orders that the Court considers
necessary to stop the conduct or remedy its effects.
2.26 Subclause (2)
sets out who may seek such an order.
2.27 This is a deeming provision. Paragraph (1)(a) deems actions by
certain bodies and persons to be actions by an organisation. Subclause (2)
provides that the deeming provision does not operate where in certain cases an
appropriate person (as specified) in the organisation has taken reasonable steps
to prevent the action.
2.28 Paragraph (1)(b) deems actions by an agent
of an employer to be actions by an employer, unless the employer has taken
reasonable steps to prevent the action (paragraph (2)(b)).
2.29 Subclauses (1) and (2) enable an applicant association with leave
from the Commission to change its name or alter its rules to comply with the
requirements of the Act (including to ensure that its rules are not contrary to
the WR Act), to remove grounds of objection to its registration or to correct a
formal or technical error in its rules.
2.30 Sub-clause (3) provides that
rule alterations under subclause (1) are binding on members.
2.31 This clause sets out the procedures to be followed when the
Commission grants an application for registration. It requires the Industrial
Registrar to immediately enter into the register of organisations such
particulars as are prescribed by the Regulations in relation to the association
and the date of entry, whereupon the association is taken to be registered as an
organisation.
2.32 The clause also requires the Industrial Registrar to
issue a certificate of registration in the prescribed form (the certificate is
conclusive evidence of registration). The Industrial Registrar may issue a copy
of the certificate or a replacement certificate to an organisation.
2.33 This clause confers corporate status on an organisation and provides
for appropriate powers and duties.
2.34 Part 3 of Chapter 2 deals with the powers of the Federal Court to
cancel the registration of an organisation on certain grounds and the powers of
the Australian Industrial Relations Commission to cancel registration on certain
technical grounds. It also deals with the consequences of cancellation.
2.35 This clause sets out grounds for cancellation of the registration of
an organisation in circumstances where its behaviour or that of its members can
properly be regarded as not being consistent with its rights and obligations
within the federal industrial relations system.
2.36 Subclause (1) allows
an organisation, a person interested or the Minister to apply to the Federal
Court for an order cancelling the registration of an
organisation.
2.37 Five main grounds for such an order are specified in
paragraphs (1) (a) to (e). They are generally concerned with industrial
misconduct by organisations or their members. These grounds relate to continued
breaches of awards, agreements and orders or conduct preventing or hindering the
achievement of an object of the WR Act, conduct preventing or hindering trade or
commerce, interference with the provision of a public service by the
Commonwealth, a State or a Territory or their authorities, conduct harmful to
public safety, health and welfare, or non-compliance with injunctions to prevent
the contravention of strike pay provisions or of orders to stop or prevent
industrial action.
2.38 Subclause (2) requires an organisation to be
given an opportunity to be heard in relation to which an application is made
under subsection (1).
2.39 Subclause (3) requires the Court, upon finding
that a ground of an application has been established, to cancel the registration
of the organisation. The Court must, however, first consider whether to do so
would be unjust in the light of the seriousness of the matters constituting that
ground and any action which has otherwise been taken by or against the
organisation in relation to those matters.
2.40 Subclause (4) enables
alternative orders to be made where the ground for cancellation is a result of
the conduct of a particular section or class of members of the organisation. In
such a case, the Federal Court has power to alter the rules of the organisation
to exclude from eligibility for membership persons in that section or class,
including persons eligible for membership under an agreement with a State
registered union.
2.41 Subclause (5) permits the Court to specify a
period during which an association whose registration has been cancelled may not
have any application to be re-registered dealt with.
2.42 Subclauses (6)
and (7) are technical and interpretative.
2.43 Under this clause, the Court may, if it thinks it just, make orders
other than for the cancellation of the registration of an organisation where a
ground has been established. Subclause (2) sets out the powers which may be
exercised by the Court; by order, the Court can:
• suspend the
rights, privileges or capacities of the organisation or of all or any of its
members in that capacity under federal Acts or awards or orders of the
Commission;
• give directions as to the exercise of any suspended
rights, privileges or capacities; and
• restrict the use of the
funds or property of an organisation or branch.
2.44 Subclause (3)
provides for the deferral, where such powers are exercised, of the Court’s
determination as to whether the registration of the organisation should be
cancelled. Subclause (4) provides that orders made under subclause (2) override
any inconsistent rules of the organisation or branch. The duration of such
orders is dealt with in subclause (5).
2.45 Subclause (1) provides that the Commission may cancel the
registration of an organisation in various circumstances. These
cover:
• an application by an organisation in accordance with the
regulations for its registration to be cancelled;
• the
organisation being registered by mistake or ceasing to be effectively
representative of members who are employers or employees;
• an
organisation not being free from control by, or improper influence from, an
employer, an association or organisation of employers or employees, or a person
with an interest in the enterprise;
• in the case of an enterprise
union, the enterprise to which it relates has ceased to exist (subclauses (5)
and (6) further explain the circumstances in which this would occur; the
Commission is required to give the organisation a reasonable opportunity to
alter its rules before considering cancelling its registration on this ground);
and
• the organisation is defunct or, in the case of an
organisation of employees, the organisation no longer satisfies the minimum
membership requirements.
2.46 Subclause (2) requires the Commission to
give the organisation whose registration is to be cancelled an opportunity to be
heard, other than where the organisation is the applicant.
2.47 Subclause
(3) provides that the Commission may cancel the registration of an organisation
if the Commission is satisfied that the organisation has breached an undertaking
referred to in subclause 19(2) and the Commission does not consider it
appropriate to amend the eligibility rules of the organisation under clause 157.
Subclause (4) sets out who may seek an order for cancellation under subclause
(3).
2.48 This clause requires the Industrial Registrar to record the
cancellation of registration of an organisation and the date of cancellation in
the register of organisations.
2.49 This clause sets out the consequences of cancellation of
registration for the status, property, entitlements and liabilities of the
former organisation and its members.
2.50 This clause provides that the powers of the Commission under Chapter
2 are exercisable only by a Presidential Member.
Chapter 3 deals with the procedure for, and consequences of, amalgamation
of organisations and withdrawal from amalgamations.
3.1 This clause provides an outline of the contents of the
chapter.
3.2 Subject to minor changes, the provisions in this Part reflect
Division 7 of Part IX of the WR Act. Relevant offences in Part XI of the WR Act
have been integrated into this Part.
3.3 This clause defines a number of terms used for the purposes of Part 2
of Chapter 3 (Amalgamation of organisations).
3.4 This clause provides that amalgamations involving registered
organisations must be in accordance with Part 2 of Chapter 3.
3.5 The
clause prohibits the Commission from performing any act (such as cancellation of
registration, registration or giving of consent to a change of name or to the
alteration of eligibility rules) other than in accordance with this Part, where
it appears to the Commission that the performance of that act is sought for the
purposes of an amalgamation.
3.6 The clause also enables the Commission
to give directions or make orders to resolve any difficulty in the application
of the Act in implementing the scheme for the proposed amalgamation.
3.7 This clause provides that the powers of the Commission under Part 2
of Chapter 3 are exercisable only by a Presidential Member.
3.8 This clause enables the establishment of a federation of
organisations prior to their amalgamation. It provides a mechanism whereby
organisations intending to amalgamate can have their interests represented under
the Act by a single body. This process may assist the organisations concerned
in their preparation for a future amalgamation.
3.9 Subclauses (1) and
(2) set out the procedure to be followed for recognition as a federation.
Organisations which propose to amalgamate may, before lodging an application to
initiate the formal amalgamation process under clause 44, lodge an application
(containing prescribed particulars) for recognition as a federation with the
Industrial Registry.
3.10 Under subclause (3), the Commission is
required to grant the application if satisfied that the organisations intend to
lodge an application to initiate the formal amalgamation procedures. Once the
application has been granted the Industrial Registrar is required to record
prescribed details in the register of organisations (subclause
(4)).
3.11 Subclause (5) enables a federation to represent its
constituent members for the purposes of the Act or the WR Act; for instance, by
representing them in proceedings before the Commission or the Federal Court.
However, a federation may not be a party to an award or certified agreement or
old IR agreement (subclause (6)).
3.12 Subclause (7) enables a
registered federation to vary its composition by including or releasing an
organisation from the federation, subject to the approval of the
Commission.
3.13 Subclause (8) states the circumstances in which the
federation ceases to exist:
• upon the amalgamation taking
effect;
• if the prescribed period (to be provided for in the
Regulations) has elapsed without the lodging of an application under clause 44
to initiate the formal amalgamation process;
• if a Full Bench of
the Commission finds that the federation’s industrial conduct (or the
conduct of an organisation belonging to the federation) is preventing or
hindering the attainment of an object of the Act or the WR
Act.
3.14 Subclause (9) makes it clear that membership of a federation
does not limit an organisation’s right to represent itself or its
members.
3.15 This clause is intended to make it clear that an organisation is not
prevented from using its resources, financial or otherwise, to support a
proposed amalgamation in which it is involved.
3.16 Under subclause (1),
a committee of management is able to authorise the use of its resources to
support the approval of a proposed amalgamation in which the organisation is
involved. The committee of management should have resolved that the
organisation should use its resources. To protect the interests of members, the
subclause requires that they be given reasonable notice of the resolution of the
committee of management.
3.17 Subclause (2) makes it clear that the
proposed section does not limit any other power that an organisation has to use
its financial and other resources in support of or for any other purpose
relating to the amalgamation.
3.18 Division 3 of Chapter 3 contains provisions relating to the
initiation of the procedures leading to the approval or rejection of a proposed
amalgamation.
3.19 Subclause (1) requires there to be a formal scheme for a proposed
amalgamation. The details required to be contained in the scheme are specified
in subclause (2), although other matters may be included (subclause (3)).
3.20 The scheme is to be approved (clause 42) and lodged (clause 44).
The scheme may be altered or amended (clause 61).
3.21 A proposed amalgamation involving 3 or more organisations will fail
to proceed if it is not approved by the members of each of those
organisations.
3.22 Where an amalgamation involving 3 or more
organisations fails, this provision enables the amalgamation scheme to provide
in such circumstances for an alternative amalgamation of some of the
organisations concerned.
3.23 Subclause (1) authorises the inclusion in a
scheme of provisions for an alterative amalgamation and sets out how it may
operate.
3.24 Subclause (2) stipulates certain additional particulars
that must be included in a scheme which provides for an alternative
amalgamation.
3.25 Subclause (1) requires the committee of management of each existing
organisation to approve, by resolution, the scheme for a proposed amalgamation
as well as any alteration to the scheme.
3.26 Subclause (2) concerns the
approval by the committee of management of an organisation to the alteration of
the scheme of proposed amalgamation or to the organisation’s
rules.
3.27 The subsection provides that the following approvals may be
given even though a different procedure for such approvals is set out in the
organisation’s existing rules:
• to avoid delay, a committee
of management of an organisation may approve the scheme of a proposed
amalgamation, as well as any alterations to the scheme and any proposed
alteration to the organisation’s rules as provided for in the
scheme;
• the committee of management may also approve variations
to the proposed rule alterations specified in the scheme.
3.28 This clause enables existing organisations concerned in a proposed
amalgamation to seek a declaration that they have a community of interest. Such
a declaration means that less onerous requirements apply in relation to the
required return of votes in an amalgamation ballot.
3.29 Subclause (1)
permits an application to be made for a community of interest declaration. The
time for making an application is specified in subclause (2). It may be made
before or at the same time as the lodging under clause 44 of an application for
an approval for the submission of an amalgamation to
ballot.
3.30 Subclause (3) requires the Commission to arrange for a
hearing in relation to the application for a declaration before the application
under clause 44. Under clause 54, submissions to such a hearing may only be
made by the applicants or by any other person with the leave of the Commission
and in relation to a prescribed matter.
3.31 Where an application for a
community of interest declaration is lodged with an application (for an
amalgamation ballot under clause 44), the hearing is to be conducted under
clause 53.
3.32 Subclause (4) requires a declaration of a community of
interest to be made if the Commission is, at the conclusion of a hearing,
satisfied as to the existence of such a community of interest.
3.33 Subclauses (5) and (6) set out the circumstances in which the
Commission must be satisfied as to the existence of a community of interest
between organisations in relation to their industrial interests. The Commission
must be satisfied that a substantial number of members of one of the
organisations concerned meet one of the criteria set out in subclause 43(5) or
43(6) as the case may be. Subclause (7) makes it clear that the criteria are
not exhaustive and that the Commission may find that a community of interest
exists in other circumstances.
3.34 Subclause (8) provides that a
declaration of community of interest will lapse if, having been made in
anticipation of an application under clause 44, no such application is made
within 6 months. This is not intended to prevent further applications for a
declaration of a community of interest.
3.35 Subclause (9) enables the
Commission to revoke a declaration of community of interest if satisfied that a
community of interest has ceased to exist. This provision is intended to put
beyond doubt the Commission’s power in this regard.
3.36 Subclause
(10) requires the Commission to give reasonable notice of intention to revoke to
each applicant organisation and give each applicant organisation an opportunity
to be heard.
3.37 This clause sets out the initiating step in the formal process for
seeking the Commission’s approval of the submission of an amalgamation to
a ballot of members.
3.38 Subclause (1) requires organisations concerned
in a proposed amalgamation and any association which is proposed to be
registered as an organisation under the amalgamation to lodge a joint
application to a ballot of the members with the Industrial Registry.
3.39 Subclause (2) requires the application to be accompanied by the
scheme for the amalgamation (see notes on clause 40) and an outline of the
scheme. The outline is intended to be a simple explanation of the amalgamation.
3.40 Subclause (3) requires the outline to not exceed 3,000 words and to
provide sufficient information on the scheme so as to enable members of the
existing organisations to make an informed decision on the amalgamation scheme
before participating in a ballot.
3.41 Subclause (1) allows transitional arrangements under which the rules
of a proposed amalgamated organisation or an association intended to be
registered in place of the amalgamating organisations provide
for:
• a person who holds an office in any of the organisations
concerned immediately before their amalgamation to hold a different office after
the amalgamation without being elected to that office as normally required under
the Act; and
• the continuation in office after an amalgamation of
a person who holds that office in an organisation which is not deregistering for
the purposes of the amalgamation provided the person held that office
immediately before the amalgamation.
3.42 Subclause (1) excludes the
normal requirement under clause 143 for an election but limits the period of
appointment or continuation in office to the unexpired part of the term of
office or the period of 2 years after the day on which the amalgamation takes
effect.
3.43 Under subclause (2), the rules of the proposed amalgamated
organisation must not permit a person who holds office in one of the
organisations concerned in the amalgamation to hold an office in the proposed
amalgamated organisation after the amalgamation takes effect for longer than the
unexpired part of the term of office without an ordinary election being held in
relation to the office.
3.44 Under subclause (3), reasonable provision
must be made for synchronising elections for the offices so held with other
elections in the organisation after the amalgamation. It is intended that this
be done where it is practical to do so.
3.45 Subclause (4) excludes the
ordinary time limits under clause 145.
3.46 Subclause (5) provides for
the ordinary requirements of clause 146 to apply for the filling of a casual
vacancy in an office held in accordance with subclause (1). Accordingly the
rules will be able to permit the filling of such a casual vacancy for the
unexpired term other than by an ordinary election, provided that unexpired term
does not exceed three quarters of the full term of the office or 12 months,
whichever is the greater.
3.47 This clause relates to an exemption from a ballot of members of a
large organisation which is amalgamating with a much smaller
body.
3.48 Subclause (1) allows an organisation concerned in a proposed
amalgamation to apply to the Commission for such an
exemption.
3.49 Subclause (2) requires the application to be lodged at
the same time as the application for approval of the submission of the
amalgamation to ballot under clause 56.
3.50 This clause deals with an application for a ballot conducted other
than by secret postal ballot.
3.51 Subclause (1) permits an organisation
concerned in a proposed amalgamation to apply to the Commission for permission
to have an amalgamation ballot conducted other than by secret postal ballot
under clause 65 (clause 64 sets out the criteria for such an alternative
ballot).
3.52 Under subclause (2), an application must be lodged with the
application for approval of the submission of the amalgamation to
ballot.
3.53 This clause deals with the lodging by an organisation of a statement
in favour of a proposed amalgamation for distribution to members in the
ballot.
3.54 Subclause (1) permits the lodging of such a written
statement, not exceeding 2000 words, in support of the proposed amalgamation and
any alternative amalgamation which is proposed should the principal amalgamation
fail. Under clause 60, material other than words may be permitted to be
included in the statement.
3.55 Subclause (2) requires the lodging of the
statement with the application for approval of the submission of the application
to ballot.
3.56 This clause requires all amalgamation ballots under Part 2 of
Chapter 3 to be conducted by the Australian Electoral Commission. Under clause
71, the Commonwealth bears the cost of such ballots.
3.57 This clause is intended to ensure that the Australian Electoral
Commission is given the earliest opportunity to prepare for any ballots that may
be required.
3.58 Subclause (1) requires the Industrial Registrar to
notify the Australian Electoral Commission at once when an application is lodged
under clause 44 for approval for the submission of the amalgamation to
ballot.
3.59 Subclause (2) requires the Australian Electoral Commission
to take such action as it considers necessary or desirable to conduct any
prospective ballots as quickly as possible.
3.60 Subclause (1) provides that an official of the Australian Electoral
Commission who has written authorisation from the Commission is empowered to
require an officer or employee of an organisation by written notice to provide
information or documents. This may only be done where this is reasonably
necessary for the purposes of an amalgamation ballot.
3.61 Subclause (2)
makes it an offence for an officer or employee of an organisation or branch to
fail to comply with a request under subclause (1).
3.62 Subclause (3)
provides that the offence in subclause (2) is a strict liability
offence.
3.63 Subclause (4) provides that subclause (2) does not apply if
the person has a reasonable excuse. In accordance with drafting practice, a
legislative note makes it clear that the defendant bears the evidentiary burden
with respect to that defence.
3.64 Subclause (5) requires a person to
provide such information, or produce or make available a document for
inspection, not withstanding that to do so may tend to incriminate the
person.
3.65 However, subclause (6) states that any information that is
provided, or document produced or made available by a person, and any
information, document or thing obtained as a consequence of the person providing
such information, or producing or making available such a document, is not
admissible against that person in criminal proceedings or proceeding which may
expose the person to a penalty, other than proceedings under subclause
52(3).
3.66 Subclause (7) enables the electoral official to require the
information or document to be made available in electronic form if it is kept in
that form.
3.67 This clause is a new provision. It provides that, if an electoral
official makes a request under subclause 51(1) in relation to a register of
members of an organisation or part of it (required to be kept under clause 230),
subclause (1) requires the secretary or other prescribed officer of the
organisation to make a declaration that the register has maintained in
accordance with subclause 230(2).
3.68 The declaration must be in writing
and provided to the Industrial Registry no later than the day before voting in
the relevant election commences (subclause (2)).
3.69 Subclause (3)
makes it an offence for a person to make a statement in the declaration that is
false or misleading.
3.70 Division 5 provides for the steps to be taken from the lodging of an
application under clause 44 for approval of the submission of the amalgamation
to ballot up to the declaration of the result of any such ballot.
3.71 An
alternative to a secret postal ballot in an amalgamation ballot is to be
available, subject to certain safeguards.
3.72 Paragraph (a) requires the Commission, upon the lodging of an
application under clause 44, to fix the time and place for hearing submissions
relating to that application and any other application lodged with it (e.g. an
application for a community of interest declaration under clause 43 or an
application for an exemption from a ballot under clause 46 or an amalgamation
ballot other than by secret postal ballot under clause
65).
3.73 Paragraphs (b) and (c) provide for the notification of
organisations and other interested persons of the hearing.
3.74 This clause enables applicants to make submissions at a hearing of
applications, arranged under subclause 43(3) or clause 53. Other persons may
only make submissions by leave of the Commission and on matters prescribed in
the regulations.
3.75 This clause sets out a procedure whereby, if certain conditions are
met, a proposed amalgamation is to proceed to ballot without objections being
permitted.
3.76 Subclause (1) sets out the criteria that must be met
before approval by the Commission to proceed to a ballot under this clause
following a hearing under clause 53:
• no new organisation is to be
registered;
• the eligibility rule of the amalgamated organisation
will be no wider than the combined eligibility rules of the amalgamating
organisations;
• the amalgamated organisation’s name will not
be the same or confusingly similar to that of another
organisation;
• any rule alterations will not contravene the Act or
the WR Act, awards, certified agreements or old IR agreements, nor will they be
contrary to the general law; and
• any deregistration of a
participating organisation for the purposes of the amalgamation meets specified
requirements and is lawful.
3.77 If any of the criteria are not met, the
Commission must, under subclause (2), refuse to approve the submission of the
amalgamation to ballot unless it takes the action described in subclauses (3)
and (7).
3.78 Subclauses (3) and (4) permit the Commission to authorise
the alteration of the scheme for the amalgamation and of any proposed rule
alterations. Such authorisation may be subject to conditions (subclause (5)).
Subclause (6) makes it clear that subclause (5) does not limit the powers of the
Commission.
3.79 Subclause (7) enables the Commission to adjourn the
proceeding if otherwise than by this clause it would have been required to
refuse to approve the submission of the amalgamation to ballot. This does not
limit the Commission’s power to adjourn the proceeding at any stage
(subclause (8)).
3.80 This clause enables objections to be made by a prescribed person on
a prescribed ground where the Commission has refused to approve the submission
of an amalgamation to a ballot because it does not meet the criteria specified
in clause 55.
3.81 Under this clause, where any objections made under clause 56 have
been heard and dismissed and certain other specified criteria are met, the
Commission must approve the submission of the amalgamation to ballot. The
Commission may, if an application would otherwise be refused under this clause,
permit certain steps to be taken by the applicants to meet the requirements for
approval.
3.82 Provision is made under subclause (1) for authorising the
submission of an amalgamation to ballot where any objections are dismissed and
criteria similar to those set out in clause 55 are met.
3.83 Subclause
(2) requires the Commission to refuse to approve the submission of the
amalgamation if not satisfied that criteria have been met.
3.84 Under
subclause (3), the Commission may, rather than refuse to approve the submission
of the amalgamation to ballot, permit alterations to the scheme or accept an
undertaking to alter the scheme.
3.85 Subclauses (4) and (5) enable the
Commission to permit a committee of management to make any requisite alterations
to the scheme (including to proposed rules or rule alterations) under, if
necessary, a procedure specified by the Commission.
3.86 Subclause (6)
deals with non-compliance with conditions or an undertaking relating to altering
the scheme. The Commission may make suitable amendments to the scheme, or give
directions and orders relating to the conduct of the amalgamation ballot or the
amalgamation procedure.
3.87 Subclause (7) provides that subclause (6)
does not limit any other powers of the Commission.
3.88 Under subclause
(8), the Commission may adjourn the proceeding rather than refuse to approve a
submission of the amalgamation to ballot. This does not limit the power of the
Commission to adjourn at any other stage (subclause 57(9)).
3.89 Where an amalgamation is approved for submission to a ballot, the
Commission must fix the commencing and closing days of the ballot (subclause
(1)). For this purpose, the Commission must consult the Electoral
Commissioner.
3.90 The commencing day is to be no later than 28 days
after the day on which the approval is given, unless the Commission considers
that the Australian Electoral Commission requires a longer period or the
organisations concerned request a later commencing day (subclause
(2)).
3.91 Other provisions are made under subclauses (3) to (5) in
relation to the commencing and closing days for ballots on alterative
amalgamation proposals as well as for varying commencing and closing
days.
3.92 This clause specifies the persons who may vote in an amalgamation
ballot.
3.93 The roll of voters is to comprise persons who, on the day on
which the commencing and closing days for the ballot are fixed, or 28 days
before the commencing day for the ballot (whichever is the
later):
• are entitled under the rules of an organisation involved
in the amalgamation to vote at such a ballot; or
• when there is no
such provision in the rules, are entitled under the rules of the organisation
rules to vote in an election ballot for an office in the
organisation.
3.94 The early involvement under clause 51 of the
Australian Electoral Commission in preparation for an amalgamation should permit
the roll of voters to be complied by the day on which the Commission fixes the
commencing and closing days.
3.95 This clause deals with a statement supporting a proposed
amalgamation (a ‘yes case’ statement), which may be lodged with the
Industrial Registry, as well as the lodging by a prescribed number of members of
the organisation of a written statement opposing a proposed amalgamation and any
proposed alternative amalgamation (a ‘no case’
statement).
3.96 Under subclause (1) the Commission may permit an
organisation to alter its ‘yes case’
statement.
3.97 Subclause (2) permits a prescribed number of members of
the organisation to lodge with the Industrial Registry a ‘no case’
statement (subclause (10) sets out the minimum number of members required
– 1000 or 5% of the total membership of the organisation (calculated on
the day the application for approval of the submission of the amalgamation to
ballot was lodged under clause 44), whichever is the lesser).
3.98 The
statement must be lodged no later than 7 days before the date fixed by the
Commission for hearing submissions about the amalgamation and must not exceed
2,000 words.
3.99 The Commission may, under subclause (3), allow
alterations to the ‘no case’ statement.
3.100 Under subclause
(4), a copy of both the ‘yes case’ and ‘no case’
statements, if lodged, must, subject to subclauses (5), (6) and (7), accompany
the ballot paper sent to the persons entitled to vote in the amalgamation
ballot, unless the ballot is conducted otherwise than by secret postal ballot
(subclause (9)).
3.101 Where there are more than one ‘no
case’ statements lodged, the Commission is required to prepare or to have
prepared a single ‘no case’ statement of no longer than 2,000 words,
based on all the ‘no case’ statements lodged (subclause (5)). This
is to be done, where practicable, in consultation with representatives of the
persons who lodged the ‘no case’ statements, and the final statement
must fairly present the substance of all arguments against the amalgamation.
The statement must be provided to persons entitled to vote in the amalgamation
ballot as if it had been lodged under subclause (2).
3.102 If necessary,
the Commission may alter such a statement after it has been settled.
3.103 Under subclause (6), the Commission has power to correct factual
errors in either a ‘yes case’ or a ‘no case’ statement
or amend it to comply with the Act or regulations.
3.104 Under subclauses
(7) and (8), a ‘yes case’ or ‘no case’ statement may
contain matters such as diagrams, photographs, drawings, etc.
3.105 This clause enables alterations and amendments to be made to a
proposed amalgamation scheme. The clause is intended to make the amalgamation
proposals more adaptable, by allowing the scheme to be altered, for example, to
reflect changes to the rules of an organisation before an amalgamation takes
place.
3.106 Under the succession provisions in Division 6 of Part 2 of
Chapter 3, an amalgamated organisation will take the place of a deregistered
organisation for the purposes of any uncompleted matters which might, if
completed before the amalgamation, have resulted in a change to the
scheme.
3.107 Under subclauses (1), (2) and (3) the Commission
may:
• in the case of a new organisation, alter the scheme for the
amalgamation at any time before the commencing day of the amalgamation ballot
and include alterations to the rules of any proposed or existing organisation
involved in the amalgamation;
• in the case of an existing
organisation, give permission to alter any aspect of the scheme of amalgamation,
including any proposed rules, subject to conditions.
3.108 Where the
Commission has given permission, the committees of management of existing
organisations involved in the amalgamation may, by resolution, alter the scheme,
including the proposed rules of the amalgamated association, notwithstanding
anything in their rules.
3.109 Under subclause (4), if the Commission has
permitted the alteration of the scheme subject to conditions, and those
conditions are breached, the Commission may then amend the scheme, including in
relation to:
• any rules of a proposed
organisation;
• any alterations proposed to the rules of existing
organisations involved in the amalgamation.
3.110 If any alteration to
the scheme for amalgamation occurs, the outline of the scheme must be amended
appropriately (subclause (6)).
3.111 The Commission may also give
directions or orders regarding the conduct of the amalgamation ballot or
specifying the procedure which must be followed regarding the
amalgamation.
3.112 Subclause (5) makes it clear that the specification
of the Commission’s powers in subclause (4) does not limit the
Commission’s powers generally.
3.113 This clause should be read with subclauses 44(2) and (3), which
require an outline of the scheme, not exceeding 3,000 words, to be
lodged.
3.114 Subclause (1) gives the Commission discretion to allow more
than 3,000 words.
3.115 Under subclause (2), the Commission may permit
the outline to include material not in the form of words, such as diagrams,
photographs and illustrations.
3.116 Under subclause (3), the Commission
may allow the existing organisations involved in the amalgamation to amend the
outline. In addition, the Commission may amend the outline to correct factual
errors and to ensure that it complies with the provisions of the Act.
3.117 Under this clause, an existing organisation involved in a proposed
amalgamation may apply to be exempted from the requirement for an amalgamation
ballot.
3.118 Under subclause (1), where a proposed amalgamated
organisation has applied for such an exemption, if the total number of members
who could, because of the amalgamation, be admitted to membership of the
proposed amalgamated organisation does not exceed 25% of the number of members
that the organisation had on the day it applied for the exemption, the
Commission must grant the application. The application may be refused if the
Commission considers that the circumstances warrant the refusal of the
exemption.
3.119 Under subclause (2), if the exemption applied for under
clause 46 is granted, the members of the proposed amalgamated organisation are
taken to have approved both the proposed principal amalgamation and each
proposed alternative amalgamation, if any.
3.120 Under this clause, an existing organisation concerned in a proposed
amalgamation may seek approval for a proposal to conduct an amalgamation ballot
by a method other than by a secret postal ballot conducted by the Australian
Electoral Commission under clause 77.
3.121 This clause sets out the
circumstances in which such an application may be granted:
• the
proposal satisfies the various criteria specified in paragraph 64(b) (which are
intended to ensure a fair ballot conducted by the Australian Electoral
Commission at meetings with proper provision for notice, secret voting and
absent voting); and
• the Commission has consulted with the
Electoral Commissioner and is satisfied that the proposal: is practicable, is
likely to result in a fuller participation of members than would result in a
ballot conducted under clause 65, and will give members adequate opportunity to
vote on the amalgamation without intimidation.
3.122 If satisfied, the
Commission must approve the proposal at the conclusion of a hearing concerning
the proposed amalgamation arranged under clause 53.
3.123 Under subclause (1), once a proposed amalgamation has been approved
by the Commission for submission to ballot in accordance with clause 55 or 57, a
secret postal ballot must be conducted by the Australian Electoral Commission
for members of each existing organisation involved in the proposed amalgamation.
However, subclause (1) does not apply where an exemption from a ballot has been
granted under clause 63 or the ballot is to be conducted under clause
64.
3.124 Where an amalgamation scheme includes both a principal
amalgamation and a proposed alternative amalgamation, subclause (2) requires the
Australian Electoral Commission to conduct, at the same time and in the same
manner as the ballot in relation to the principal amalgamation, a ballot in
respect of each alternative amalgamation proposal.
3.125 The question to
be put to the members of each of the organisations involved in the proposed
amalgamation is whether, in the event that the proposed principal amalgamation
does not take place, they approve the proposed alterative amalgamation or
amalgamations.
3.126 Subclause (3) provides that, in the event that more
than one ballot is necessary, only one ballot paper is to be used for all
ballots.
3.127 Under subclause (4), the votes in a ballot conducted in
relation to a proposed alterative amalgamation need be counted only if it is
necessary to know the results of that ballot because the principal amalgamation
was not approved, or for some other purpose of the Act.
3.128 Subclause
(5) requires a copy of the outline of the amalgamation scheme to accompany the
ballot paper sent to a person entitled to vote in the amalgamation ballot. If
the outline has been altered or amended, the copy sent with the ballot paper
must include these alterations or amendments.
3.129 Subclause (6)
provides that in a ballot conducted under clause 65, each completed ballot paper
must be returned in the declaration envelope provided, which must be in the
approved form (subclause (7)).
3.130 Subclause (8) requires a ballot
under this clause to be conducted as prescribed.
3.131 Subclause (9)
provides that this clause does not apply if an exemption from the requirement
that a ballot be held in relation to the proposed amalgamation was granted under
clause 63 or if the Commission has approved a proposal under clause
64.
Clause 66 – Determination of approval of amalgamation by
members
3.132 The minimum voting requirements necessary for an
approval of an amalgamation by members of an existing organisation involved in
an amalgamation are to be:
• if a community of interest declaration
is in force under clause 43 in respect of the proposed amalgamation, the
proposed amalgamation is approved by a single
majority;
• otherwise, an amalgamation is approved only if at least
25% of the members on the roll of voters (as compiled in accordance with clause
59) have voted in the amalgamation ballot and if more than 50% of the formal
votes cast are in favour of the amalgamation.
3.133 This clause enables a proposed amalgamation that has failed at
ballot to be resubmitted. It permits the Commission to dispense with various
steps, for example, if there has been no change to the scheme since the
amalgamation was last approved for submission to ballot.
3.134 This
discretion may only be exercised if the fresh application is made within 12
months.
3.135 Subclause (1) requires the Australian Electoral Commission to
provide a report on the conduct of a ballot to the Federal Court, the Industrial
Registrar and each applicant under clause 44, after completion of a
ballot.
3.136 The report must include details of matters prescribed by
regulation (subclause (2)).
3.137 Subclause (3) requires the Australian
Electoral Commission, in relation to postal ballots (subclause (4)), to state in
the report, if it is of that opinion, that the register of members or part
thereof made available to it for the purposes of the ballot contained an unduly
large proportion of members’ addresses that were not current or were
workplace addresses.
Clause 69 – Inquiries into
irregularities
3.138 Subclause (1) enables an application to be made
to the Federal Court for an inquiry into alleged irregularities in relation to
an amalgamation ballot (reference should be made to the definition of
‘irregularity’ in clause 6).
3.139 The application must be
made within 30 days of the result of the ballot being
declared.
3.140 Where the Court concludes that an irregularity has
occurred and that this may affect or might have affected the result of the
amalgamation ballot, subclause (2) empowers the Court to:
• order
that a step in the ballot process be taken again, where the ballot is
incomplete; or
• order a fresh ballot, where the ballot is
completed; and
• any other order it considers necessary or
desirable.
3.141 Subclause (3) enables regulations to specify the
procedure of the Federal Court for inquiries by the Court into alleged ballot
irregularities and for related matters.
3.142 Under subclause (1), a proposed amalgamation is to be taken as
approved if the members of each organisation concerned have approved it in a
ballot in accordance with Part 2.
3.143 Under subclause (2), if, in a
proposed amalgamation of more than two organisations, the principal amalgamation
is rejected, but the members of two or more of the existing organisations
approve the proposed alternative amalgamation, the proposed alternative
amalgamation is taken to have been approved.
3.144 However, if in the
proposed amalgamation scheme one of the existing organisations is the proposed
amalgamated organisation, the members of that organisation must have approved of
the proposed alternative amalgamation in the amalgamation ballot.
3.145 This clause provides that the Commonwealth bears the expenses of an
amalgamation ballot.
3.146 This clause sets out offences relating to ballot papers. Similar
provisions apply to ballots for withdrawal from amalgamations (see notes to
clause 105). Subclause (1) deals with interference with ballot papers. An
offence is committed for such actions as destroying or altering a ballot paper,
or possessing a ballot paper which a person is not entitled to possess. The
maximum penalty is 30 penalty units.
3.147 Subclause (2) concerns
hindering the ballot process. A person commits an offence if, for example, he
or she hinders or obstructs the ballot process, threatens violence with the
intention of influencing a vote, gives or offers a bribe, or advises a person
entitled to vote to refrain from voting. The maximum penalty is 30 penalty
units.
3.148 Subclause (3) seeks to maintain the secrecy of the vote. An
offence is committed, for example, when a person requests another person to see
a ballot paper after is has been marked. The maximum penalty is 30 penalty
units.
3.149 Subject to certain amendments, this clause generally
reflects subsections 317(2), 317(3) and 317(4) of the WR Act.
3.150 Division 6 provides for the taking effect of a proposed
amalgamation which has been approved at ballot. There are a number of
provisions which automatically make the amalgamated organisation the successor
of the de-registered organisation or organisations for various purposes.
3.151 A proposed amalgamation which is approved takes effect under this
clause.
3.152 Subclause (2) requires the Commission, after consulting the
organisations concerned, to fix an ‘amalgamation day’ on which the
amalgamation is to take effect. ‘Amalgamation day’ is defined in
clause 35. Notice of the day is to be published as
prescribed.
3.153 Under subclause (2), before fixing the amalgamation
day, the Commission must be satisfied that:
• the time for applying
under clause 69 for an inquiry into alleged ballot irregularities has expired
(30 days after declaration of the result of the ballot), or that there are no
matters relating to such an inquiry outstanding;
• there are no
unresolved criminal proceedings against any organisation concerned in the
amalgamation; and
• the proposed amalgamated organisation will
regard itself bound by any outstanding obligations under Commonwealth law by an
existing organisation.
3.154 Under subclause (3), on amalgamation
day:
• the Industrial Registrar must register the amalgamated
organisation;
• any alterations to its rules take
effect;
• the Commission is required to cancel the registration of
the proposed de-registering organisation or organisations;
and
• members of the de-registering organisation automatically
become members of the amalgamated organisation, without having to pay an
entrance fee.
3.155 Under subclause (4), where an organisation has given
an undertaking under paragraph 2(d), the Commission may, after giving the
organisation an opportunity to be heard, determine that the undertaking has been
breached and make any orders it considers necessary to ensure compliance with
the undertaking.
3.156 This clause generally replicates section 253Q of
the WR Act, except for the additional requirements in paragraph (2)(d) and
subclause (4) in relation to organisations being bound by existing obligations.
3.157 On the amalgamation day, all assets and liabilities of an
organisation, which were deregistered for the purposes of the amalgamation,
thereupon become the assets and liabilities of the amalgamated organisation, and
cease to be assets and liabilities of the deregistered organisation. The terms
‘asset’ and ‘liability’ are defined in clause
35.
3.158 This clause modifies the operation of clause 174 (which deals with
resignation from membership of an organisation) for the purposes of the
amalgamation provisions. Normally, except in certain specific cases, a
resignation is only effective at the end of 2 weeks after its receipt by an
organisation, or such shorter period as is stipulated in the rules of the
organisation. This clause reduces the specified time of 2 weeks to 1 week or
such shorter period as the Commission directs. This reduction applies on and
from the day on which the amalgamation day is fixed.
3.159 Awards and orders of the Commission, and agreements certified by
the Commission, which were binding on a deregistering organisation and its
members immediately before the amalgamation took effect become automatically
binding on the amalgamated organisation and its members, and are effective for
all purposes. References in such awards or orders to an organisation which was
deregistered for the amalgamation are to be read to include references to the
amalgamated organisation.
3.160 Subclause (1) provides that, on and from the amalgamation day, the
amalgamated organisation becomes bound to any agreement made with a State union
under clause 151 to which the de-registered organisation was a party. Subclause
(2) requires the Industrial Registrar to enter in the register of organisations
particulars of the effect of the amalgamation on the agreement.
3.161 This clause ensures continuity in the operation and effect of
instruments.
3.162 The terms ‘instrument’ and
‘instrument to which this Part applies’ are defined in clause
35.
3.163 Under subclause (1), such instruments continue in force from
the time of the amalgamation.
3.164 Subclause (2) provides that, for
matters occurring from that time, a reference in an instrument to a deregistered
organisation is to be read as referring to the amalgamated organisation.
3.165 This clause ensures continuity in Court and Commission proceedings.
It provides that the amalgamated organisation takes the place of the
deregistered organisation in all proceedings pending, immediately before the
amalgamation day, before a court or before the Commission.
3.166 The purpose of this clause is to protect an organisation or person
from liability under Commonwealth, State or Territory law, or the common law in
relation to actions carried out because of, or for a purpose connected to or
arising out of, the giving effect to an amalgamation.
3.167 Under
subclause (1), the provisions of Division 6 of Part 2 of Chapter 3 prevail over
any other Commonwealth, State or Territory law, and over any contract, deed,
undertaking, agreement or other instrument.
3.168 Subclause (2) protects
an organisation or other person, in respect of anything done by or because of
the subdivision, or for its purposes, from liability under Commonwealth, State
or Territory law or the common law for the consequences of those
actions.
3.169 Nothing done pursuant to Division 6 of Part 2 of Chapter 3
is taken to release a surety, wholly or in part, from his or her obligations
(paragraph (2)(c)).
3.170 Subclause (3) provides that where the consent
of a person would normally by necessary to give effect to any particular aspect
of this Division, the consent is deemed to have been given.
3.171 Subclause (1) requires the amalgamated organisation to do
everything necessary to ensure that, when an amalgamation has taken place, it is
fully effective. Subclause (2) empowers the Federal Court, on the application
of an interested person, to make orders, as appropriate, to ensure compliance
with subclause (1).
3.172 This clause applies where land or an interest in land has been
transferred under Division 6 of Part 2 of Chapter 3 from a de-registered
organisation to an amalgamated organisation.
3.173 This clause enables a
simple certificate to provide the authority for the appropriate State or
Territory official (eg, a Registrar of Titles) to register and otherwise give
effect to the change in ownership or in the holding of the interest.
3.174 This clause applies where the amalgamated organisation becomes, by
force of Division 6 of Part 2 of Chapter 3, the holder of a charge.
If:
• an authorised person signs a certificate which identifies the
charge and states that the amalgamated organisation has become, under this
Division, the holder of the charge; and
• the certificate is lodged
with the Australian Securities and Investments Commission (ASIC);
ASIC
may register the matter in the normal manner, and deal with and give effect to
the certificate as if it were a properly lodged notice of assignment if the
charge. The words ‘charge’ and ‘holder’ are defined in
clause 35.
Clause 84 – Certificates in relation to shares
etc.
3.175 This clause applies where the amalgamated organisation
becomes, by force of Division 6 of Part 2 of Chapter 3, the holder of a share,
debenture or interest in a company.
3.176 If an authorised person signs a
certificate identifying the share, etc, and stating that the amalgamated
organisation has, under Division 6, become the holder of the share, etc; and the
certificate is delivered to the company, the company is required
to:
• register the matter in the usual way; and
• to
complete all appropriate documents and deliver them to the amalgamated
organisation as if the certificate were a proper instrument of
transfer.
3.177 ‘Debenture’ and ‘interest’ are
defined in clause 35.
3.178 This clause applies where an asset, other than an asset under the
preceding three clauses, becomes an asset of the amalgamated organisation. If:
• an authorised person signs a certificate identifying the asset
and stating that, under Division 6 of Part 2 of Chapter 3, the asset belongs to
the amalgamated organisation; and
• the certificate is given to the
person or authority responsible under the relevant State, Commonwealth or
Territory law for keeping a register of such assets;
that person or
authority may register the matter in the normal manner, and deal with and give
effect to the certificate as if it were a proper and appropriate instrument for
transaction concerning such an asset.
3.179 ‘Asset’ is
defined in clause 35.
3.180 This clause states that the regulations may provide for other
matters related to giving effect to an amalgamation.
3.181 Subclause (1) enables the Federal Court of Australia to make any
order it considers proper to resolve any difficulty arising in relation to the
application of Division 6 of Part 2 of Chapter 3 to a particular matter.
3.182 Under subclause (2), such an order prevails over a Commonwealth,
State or Territory law.
3.183 An application for such an order may be
made by any interested person.
3.184 An underlying objective of Part 2 (and of its predecessor in
Division 7 of Part IX of the WR Act) is to avoid or minimise difficulties in
respect of amalgamations.
3.185 Accordingly, certain acts by
organisations or their officers for the purposes of an amalgamation are to be
treated as valid if done in good faith and if their validation would not do
substantial injustice to interested persons or bodies. The Federal Court has
jurisdiction over these matters.
3.186 Division 7 of Part 2 of Chapter 3
of the Act contains appropriate provisions for this purpose which complement the
validating provisions in Part 2 of Chapter 10.
3.187 Definitions of terms
used in this Division (such as ‘defect’ and
‘invalidity’) appear in clause 35.
3.188 Under subclause (1), acts done for the purposes of a proposed or
completed amalgamation by specified persons or bodies are valid if done in good
faith, notwithstanding any invalidity later discovered in relation to the act
concerned (the specified persons or bodies are an organisation concerned in the
amalgamation, a committee of management of the organisation, or an
officer).
3.189 Such validation is subject to displacement by an order of
the Federal Court under clause 90.
3.190 Subclause (2) sets out certain
presumptions in relation to an act under subclause (1) which are consistent with
a general presumption of validity until the contrary is
established.
3.191 Subclause (3) provides that the validation provisions
apply to an act done to or by an association whenever it was done (including an
act done before the commencement of the provision), and to an act done to or by
an association before it became registered.
3.192 Subclause (4) makes it
clear that the validation provisions do not affect the operation of an order of
the Federal Court made before the commencement of the clause nor the operation
of:
• clause 69 (inquiries into irregularities);
• clause 81 (requiring an amalgamated organisation to take steps
to carry out the amalgamation and enabling the Federal Court to make appropriate
orders in this respect); or
• clause 87 (the capacity of the
Federal Court to resolve any difficulties arising from the application of
Division 6 of Part 2 to a particular matter); or
• the operation
of the general validation provisions in Part 2 of Chapter 11 (validation
provisions for organisations).
3.193 The definition of
‘invalidity’ in clause 35 includes a ‘defect’, which is
separately defined in the same clause as excluding an irregularity in relation
to a ballot. This is to ensure that the separate legislative scheme for dealing
with irregularities in amalgamation ballots is not affected.
3.194 Subclause (1) enables an act by an organisation concerned in the
amalgamation or committee of management or officer of the organisation which was
done for the purposes of an amalgamation to be taken to have complied with the
rules of an organisation and the requirements of Part 2 of Chapter 3 if 4 years
have elapsed from the day on which the act was done.
3.195 Such
validation by passage of time is subject to displacement by an order of the
Federal Court under clause 90.
3.196 Subclause (2) also exempts certain
judicial decisions, orders and the like from the effects of subclause
(1).
3.197 Subclause (3) provides that this clause applies to an act done
to or by an association whenever it was done, and to an act done to or by an
association before it became registered.
3.198 This clause enables the Federal Court to displace the validating
provisions of clauses 88 and 89, where it would be just to do
so.
3.199 Under subclause (1), if the Federal Court is satisfied that the
application of clauses 88 and 89 would do substantial injustice, having regard
to the interests of specified persons, it must make a declaration.
3.200 Under subclause (2), such a declaration completely displaces any
operation of clauses 88 and 89.
3.201 Subclause (3) specifies who may
seek a declaration.
3.202 This clause empowers the Federal Court, on application, to
determine whether there has been an invalidity in relation to an amalgamation or
proposed amalgamation and to make certain orders to correct the
invalidity.
3.203 Subclause (1) sets out who may apply for such a
determination.
3.204 Under subclauses (2), (3) and (4), the Court may
make an appropriate declaration and orders to correct the invalidity and
validate anything consequentially made invalid owing to the
invalidity.
3.205 As a safeguard, subclause (5) requires the Court,
before making an order to rectify the invalidity or its consequences, to satisfy
itself that substantial injustice would not occur to the organisation, a member,
creditor or person dealing with it.
3.206 Subclause (6) applies the
section to an invalidity occurring before the commencement of the section or in
relation to an association before it was registered.
3.207 Subject to the inclusion of a number of new provisions, and other
minor changes, the provisions in this Part reflect Division 7A of Part IX of the
WR Act. The new provisions concern matters that are dealt with in the
Workplace Relations Regulations 1996. They have been included in this
Part to consolidate the relevant provisions in the Act. Relevant offences in
Part XI of the WR Act have also been integrated into this Part.
3.208 This clause provides that the object of Part 3 of Chapter 3 is to
allow, in a manner that is fair to the members of the organisations concerned
and the creditors of those organisations:
• the reconstitution and
re-registration of certain organisations that have taken part in amalgamations;
and
• branches of such organisations to be formed into
organisations and registered.
3.209 This clause defines a number of terms for the purposes of Part 3 of
Chapter 3.
3.210 Subclause (1) provides for an application to be made to the Federal
Court for a secret ballot to decide whether a constituent part of an amalgamated
organisation should withdraw from the organisation.
3.211 An application
may be made only if the requirements of paragraphs (1)(a), (b) and (c) are
satisfied. These requirements limit the provisions to amalgamations that
occurred after 1 February 1991 (when amendments encouraging amalgamations came
into effect), provide a reasonable period of two years for the amalgamation to
work, and specify a period after which the amalgamation cannot be
undone.
3.212 In the case of amalgamations which occurred before 31
December 1996, that period is 3 years from the commencement of the Division. In
the case of amalgamations which occurred after 31 December 1996, the period
after which the amalgamation cannot be undone is five years from the date of the
amalgamation.
3.213 Subclause (2) prevents an application for a ballot
being made within 12 months of either: the Court having rejected an application
in relation to the constituent part of the organisation, or a proposal for
withdrawal having been rejected in a ballot.
3.214 Subclause (3) sets out
who may make an application for a ballot.
3.215 Subclause (4) requires
the application to be in the prescribed form and to contain information
prescribed by the regulations.
3.216 Subclause (5) requires a constituent
member involved in an application (under subclause (3)) to be a financial
member.
3.217 This clause requires a written outline of the proposal for
disamalgamation to accompany an application for withdrawal from an amalgamated
organisation. The outline must:
• include sufficient information
on the proposal to enable constituent members to make informed decisions in
relation to the proposed withdrawal and to address matters prescribed by the
regulations in a fair and accurate manner;
• not exceed 3,000 words
(unless authorised by the Federal Court); and
• be a fair and
accurate representation of the proposed withdrawal.
3.218 If the Federal
Court is not satisfied that the outline is a fair and accurate representation of
the proposed withdrawal or has addressed prescribed matters in a fair and
accurate manner, it must order any amendments it considers necessary to ensure
compliance with these requirements.
3.219 Under clause 98, the Federal
Court may allow the outline to include diagrams, drawings, illustrations,
photographs, symbols and the like.
3.220 This clause enables the applicant to file with the Federal Court a
written statement of up to 2,000 words in support of the proposed withdrawal.
The statement must be filed at the same time as application, unless the Court
allows filing at a later time (subclause (2)). The Court may order amendments
to be made to correct factual errors or to ensure that the statement complies
with the Act (subclause (3)).
3.221 Under clause 98, the Federal Court
may allow the statement to include diagrams, drawings, illustrations,
photographs, symbols and the like.
3.222 The amalgamated organisation is authorised to file with the Federal
Court a written statement of up to 2,000 words opposing the disamalgamation.
The statement must be filed no later than 7 days before the day the ballot
application is due to be heard, unless the Court allows filing at a later time
(subclause (2)). The Court may order amendments to be made to correct factual
errors or to ensure that the statement complies with the Act (subclause
(3)).
3.223 Under clause 98, the Federal Court may allow the statement to
include diagrams, drawings, illustrations, photographs, symbols and the
like.
3.224 The Federal Court may allow an outline filed under clause 95 or the
statement in support or the statement in opposition to the disamalgamation
(filed under clause 96 or clause 97, respectively) to include diagrams,
drawings, illustrations, photographs, and symbols. The Court may also allow an
outline or a statement to be amended by the person who filed it.
3.225 When an application is made under clause 94, the Registrar of the
Federal Court must immediately notify the Australian Electoral Commission
(subclause (1)). Following this notification, the Australian Electoral
Commission must then take appropriate steps to ensure that it is able to conduct
the ballot as quickly as possible (subclause (2)).
3.226 Subclause (1) sets out the matters in respect of which the Court
must be satisfied before ordering a ballot on the question of whether a
constituent part should withdraw from an amalgamation:
• the
application for the ballot has been validly made;
• the outline is
a fair and accurate representation of what is proposed and addresses matters
prescribed in the regulations in a fair and accurate manner;
and
• any requirements prescribed by regulations have been
met.
3.227 Subclause (2) lists the persons who may be heard by the
Court.
3.228 Subclause (3) provides that the Court may make such orders
as it thinks fit in relation to the conduct of the ballot.
3.229 This clause is a new provision which limits the constituent members
of an amalgamated organisation who are eligible to vote in a ballot to financial
members of the organisation.
3.230 The clause also provides that
regulations may prescribe additional classes of members who are eligible to vote
at the ballot.
3.231 Subclause (1) requires the Australian Electoral Commission to carry
out the ballot in accordance with the regulations. It also provides that the
Commonwealth bears the expenses of conducting such a ballot.
3.232 The
ballot paper is to be accompanied by a copy of the outline, as well as a copy of
a statement in support of, or of a statement in opposition to, the withdrawal if
any (subclause (2)).
3.233 Subclause (3) requires that each ballot paper
must be returned to the Australian Electoral Commission in the declaration
envelope provided.
3.234 An electoral official, who has written authorisation from the
Australian Electoral Commission, may require (by written notice) 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 (subclause
(1)). If the information or documents is kept in an electronic form, the
electoral official may require production in that form (subclause
(5)).
3.235 Subclause (2) makes it an offence for an officer or employee
to fail to comply with the requirement to provide information or
documents.
3.236 Subclause (3) provides that the offence in subclause (2)
is a strict liability offence.
3.237 Subclause (4) provides that
subclause (2) does not apply if the defendant has a reasonable excuse. In
accordance with drafting practice, a legislative note makes it clear that the
defendant bears the evidentiary burden with respect to that
defence.
3.238 Subclause (5) requires a person to provide such
information, or produce or make available a document for inspection, not
withstanding that to do so may tend to incriminate the
person.
3.239 However, consistent with Commonwealth criminal law policy,
any information or document produced, and any information, document or thing
obtained as a consequence of the person providing such information or document,
is inadmissible against that person in criminal proceedings or proceeding which
may expose the person to a penalty, other than proceedings under 104(3)
(subclause (6)).
3.240 This clause is a new provision. It provides that, if an electoral
official makes a request under subclause 103(1) in relation to a register of
members of an organisation or part of it required to be kept under clause 230,
the secretary (or other prescribed officer) of the organisation must make a
declaration that the register has been maintained in accordance with the
requirements of the legislation (see the notes to subclause
230(2)).
3.241 The declaration must be in writing and provided to the
Industrial Registry no later than the day before voting in the relevant election
commences (subclause (2)).
3.242 Subclause (3) prohibits a person to
making a statement in the declaration that is false or misleading. The note at
the end of the subsection makes clear that it is a civil penalty
provision.
3.243 This clause sets out offences relating to ballot papers. Similar
provisions apply to ballots for amalgamations. Subclause (1) deals with
interference with ballot papers. An offence is committed for such actions as
destroying or altering a ballot paper, or possessing a ballot paper which a
person is not entitled to possess. The maximum penalty is 30 penalty
units.
3.244 Subclause (2) concerns hindering the ballot process. A
person commits an offence if, for example, he or she hinders or obstructs the
ballot process, threatens violence with the intention of influencing a vote, or
advises a person entitled to vote to refrain from voting. The maximum penalty
is 30 penalty units.
3.245 Subclause (3) seeks to maintain the secrecy of
the vote. An offence is committed, for example, when a person requests another
person to see a ballot paper after it has been marked. The maximum penalty is
30 penalty units.
3.246 Subject to certain amendments required to ensure
conformity with the Criminal Code Act 1995, this clause generally
reflects subsections 317(2), 317(3) and 317(4) of the WR Act.
3.247 Clause 106 requires the electoral official conducting the ballot to
prepare, date and sign a certificate containing specified particulars of the
ballot. The electoral official is required to give a copy to the Federal Court,
the Industrial Registrar and the amalgamated organisation.
3.248 The
electoral official is also required to provide a copy to each applicant.
However, where the application was made by the prescribed number of constituent
members under paragraph 94(3)(a), the electoral official is to make a copy of
the certificate available to each applicant in any way he or she considers
appropriate.
3.249 Subclause (1) requires the Australian Electoral Commission to
provide a report on the conduct of a ballot to the Federal Court, the Industrial
Registrar and each applicant under clause 94, after completion of a
ballot.
3.250 Where the application for a ballot was made by the
prescribed number of constituent members under paragraph 94(3)(a), the electoral
official is required to make a copy of the report available to each applicant in
any way he or she considers appropriate.
3.251 Subclause (3) requires the
report to include details of matters prescribed by
regulation.
3.252 Subclause (4) requires the Australian Electoral
Commission to state in the report, if it is of that opinion, that the register
of members or part thereof made available to it for the purposes of the ballot
contained an unduly large proportion of members’ addresses that were not
current or were workplace addresses.
Clause 108 – Inquiries into
irregularities
3.253 Subclause (1) enables an application to be made
to the Federal Court for an inquiry into alleged irregularities in relation to a
disamalgamation ballot. ‘Irregularity’ is defined in clause
6.
3.254 The application must be made within 30 days of the result of the
ballot being declared.
3.255 Where the Court concludes that an
irregularity has occurred and that this may affect or might have affected the
result of the disamalgamation ballot, subclause (2) empowers the Court
to:
• where the ballot is incomplete, order that a step in the
ballot process be taken again; or
• where the ballot is completed,
order a fresh ballot; and
• any other order the Court considers
necessary or desirable.
3.256 Subclause (3) enables regulations to
specify the procedure of the Federal Court for inquiries by the Court into
alleged ballot irregularities and for related matters.
3.257 This clause provides for the fixing of a day on which a withdrawal
from an amalgamation takes effect, and related matters.
3.258 If a
majority (more than 50 per cent) have voted in favour of the withdrawal of the
constituent part of the amalgamated organisation, the Federal Court must:
• determine the day on which the withdrawal is to take effect
(paragraph (1)(a));
• make orders in connection with the
apportionment of the assets and liabilities of the organisation (paragraph
(1)(b) and subclause (2)); and
• make other orders necessary to
give effect to the withdrawal (paragraph (1)(c)), e.g. changes to eligibility
rules.
3.259 Subclause (3) prescribes those who may apply to the Court
for an order.
3.260 Subclause (4) requires a constituent member involved
in an application (under subclause (3)) to be a financial member.
3.261 Subclause (5) requires the application to be in the prescribed
form and to contain information prescribed by the regulations.
3.262 This clause provides for the registration of the constituent part
as an organisation and the entry of its particulars in the register of
organisations kept by the Industrial Registry under paragraph 13(1)(a).
3.263 This clause provides a mechanism for members to decide whether to
become a member of a newly withdrawn organisation or to remain a member of the
amalgamated organisation.
3.264 This clause provides for members of the amalgamated organisation
who fall within the eligibility rules of the newly registered organisation to
join the latter, without payment of an entrance fee.
3.265 This clause provides for the application of awards, orders,
certified agreements and old IR agreements following a withdrawal from an
amalgamation. On the day that the registration of the newly registered
organisation takes effect all applicable awards, orders, certified agreements
and old IR agreements become binding on the newly registered organisation and
its members, and have effect for all purposes.
3.266 Subclause (1) provides that, on and from the day when the
registration of the withdrawn organisation takes effect, it becomes bound by any
agreement made with a State union under clause 151 to which the amalgamated
organisation was a party. Subclause (2) requires the Industrial Registrar to
enter in the register of organisations particulars of the effect of the
withdrawal on the agreement.
3.267 This clause reflects Regulation 98ZK
of the Workplace Relations Regulations 1996.
Clause 115 -
Instruments
3.268 This clause ensures continuity in the operation and
effect of instruments.
3.269 The terms ‘instrument’ and
‘instrument to which this Part applies’ are defined in clause
93.
3.270 Under subclause (1), such instruments continue in force from
the time of the withdrawal day.
3.271 Subclause (2) provides that, for
matters occurring from that time, a reference in an instrument to the
amalgamated organisation is to be read as a reference to the newly registered
organisation.
3.272 This clause ensures continuity in Court and Commission proceedings.
It provides that in all proceedings that are pending before a court or before
the Commission immediately before the day on which the withdrawal takes effect,
the newly registered organisation takes the place of the amalgamated
organisation if the proceedings concern wholly the interests of constituent
members of the newly registered organisation. Where the proceedings concern in
part the interests of the constituent members of the amalgamated association,
the newly registered organisation becomes a party to the
proceedings.
3.273 This clause reflects Regulation 98ZM of the
Workplace Relations Regulations 1996.
3.274 The purpose of this clause is to protect an organisation or person
from liability under Commonwealth, State or Territory law, or the common law in
relation to actions carried because of, or for a purpose connected to or arising
out of, Division 3 of Part 3 of Chapter 3.
3.275 Under subclause (1), the
provisions of concerning the giving of effect to withdrawal ballots prevail over
any other Commonwealth, State or Territory law, and over any contract, deed,
undertaking, agreement or other instrument.
3.276 Subclause (2) protects
an organisation or other person, in respect of anything done by or because of
the Division, or for its purposes, from liability under Commonwealth, State or
Territory law or the common law for the consequences of those
actions.
3.277 Nothing done pursuant to Division 3 of Part 3 of Chapter 3
is taken to release a surety, wholly or in part, from his or her obligations
(paragraph (2)(c)).
3.278 If the consent of a person is required to
enable a transaction to be carried out, such consent is deemed to have been
given (subclause (3)).
Clause 118 – Amalgamated organisation,
constituent part and newly registered organisation to take necessary
steps
3.279 Subclause (1) requires the amalgamated organisation and
the constituent part to do everything necessary to ensure that, when a
withdrawal has taken place, it is fully effective. Subclause (2) empowers the
Federal Court, on the application of an interested person, to make orders, as
appropriate, to ensure compliance with subclause (1).
3.280 This clause applies where land or an interest in land has been
transferred under Division 3 of Part 3 of Chapter 3 from an amalgamated
organisation to a newly registered organisation.
3.281 This clause
enables a simple certificate to provide the authority for the appropriate State
or Territory official (eg, a Registrar of Titles) to register and otherwise give
effect to the change in ownership or in the holding of the
interest.
3.282 This clause reflects Regulation 98ZN of the Workplace
Relations Regulations.
3.283 This clause applies where the newly registered organisation
becomes, by force of Division 3 of Part 3 of Chapter 3, the holder of a charge.
If:
• an authorised person signs a certificate which identifies the
charge and states that the newly registered organisation has become, under this
Division, the holder of the charge; and
• the certificate is lodged
with the Australian Securities and Investments Commission (ASIC);
ASIC
may register the matter in the normal manner, and deal with and give effect to
the certificate as if it were a properly lodged notice of assignment if the
charge. The words ‘charge’ and ‘holder’ are defined in
clause 93.
3.284 This clause reflects Regulation 98ZO of the Workplace
Relations Regulations.
Clause 121 – Certificates in
relation to shares etc.
3.285 This clause applies where the newly
registered organisation becomes, by force of Division 3 of Part 3 of Chapter 3,
the holder of a share, debenture or interest in a company.
3.286 If an
authorised person signs a certificate identifying the share, etc, and stating
that the newly registered organisation has, under Division 3, become the holder
of the share, etc; and the certificate is delivered to the company, the company
is required to register or record the matter in the usual way.
3.287 ‘Debenture’ and ‘interest’ are defined in
clause 93.
3.288 This clause reflects Regulation 98ZP of the Workplace
Relations Regulations 1996 with some amendments to ensure symmetry with the
equivalent provision in Part 2.
3.289 This clause applies where an asset, other than an asset under the
preceding three clauses, becomes an asset of the newly registered organisation.
If:
• an authorised person signs a certificate identifying the
asset and stating that, under Division 3 of Part 3 of Chapter 3, the asset
belongs to the amalgamated organisation; and
• the certificate is
given to the person or authority responsible under the relevant State,
Commonwealth or Territory law for keeping a register of such assets;
that
person or authority may register the matter in the normal manner, and deal with
and give effect to the certificate as if it were a proper and appropriate
instrument for transaction concerning such an
asset.
3.290 ‘Asset’ is defined in clause
93.
3.291 This clause reflects Regulation 98ZQ of the Workplace
Relations Regulations 1996.
Clause 123 – Holding office
after withdrawal
3.292 This clause enables a newly registered
organisation to have rules to ensure continuity in office in respect of office
holders elected to the equivalent offices of the constituent part before
amalgamation.
3.293 However, those rules may not enable the office
holders to continue in office in the newly registered organisation beyond what
would have been the end of their term in that constituent part or beyond a year
after the day when the disamalgamation takes effect, whichever is the
later.
3.294 This clause reflects Regulation 98ZR of the Workplace
Relations Regulations 1996.
3.295 This clause states that the regulations may provide for other
matters related to giving effect to the withdrawal of constituent parts from
amalgamated organisations.
3.296 This clause gives the Federal Court the power to make discretionary
orders for the purpose of resolving difficulties which arise in relation to the
application of Part 3 of Chapter 3.
3.297 Any order made by the Federal
Court prevails over any law of the Commonwealth, State or Territory.
3.298 In order to avoid or minimise difficulties in respect of withdrawal
from amalgamations, Division 4 establishes a mechanism by which certain acts
done by organisations or their officers for the purposes of such a withdrawal
are to be treated as valid if done in good faith and if their validation would
not do substantial injustice to interested persons or bodies. The Federal Court
has jurisdiction over these matters.
3.299 Terms used in this Division
(such as ‘defect’ and ‘invalidity’) are defined in
clause 93.
3.300 Under subclause (1), acts done for the purposes of a proposed or
completed disamalgamation by specified persons or bodies are valid if done in
good faith, notwithstanding any invalidity later discovered in relation to the
act concerned. The persons or bodies that are specified in this respect are
the:
• amalgamated
organisation;
• the committee of management or an
officer of the amalgamated organisation;
or
• constituent part of an amalgamated
organisation; or
• committee of management, or
an officer, of such a part; or
• newly registered
organisation; or
• committee of management, or
an officer, of such an organisation.
3.301 Such validation is subject to
displacement by an order of the Federal Court under clause
128.
3.302 Subclause (2) sets out certain presumptions in relation to an
act under subclause (1) which are consistent with a general presumption of
validity until the contrary is established.
3.303 Under subclause (3),
the validation provisions apply to an act done to or by an association whenever
it was done (including before the commencement of the
clause).
3.304 Subclause (4) makes it clear that the validation
provisions do not affect the operation of an order of the Federal Court made
before the commencement of the clause nor the operation
of:
• clause 108 (inquiries into irregularities);
• clause 118 (requiring an amalgamated organisation and
constituent part to take steps to give effect to the withdrawal and enabling the
Federal Court to make appropriate orders in this respect); or
• clause 125 (the capacity of the Federal Court to resolve any
difficulties arising from the application of Part 3 to a particular matter); or
• the operation of the validation provisions in Part 2 of Chapter
11 (general validation provisions for organisations).
3.305 The
definition of ‘invalidity’ in clause 93 includes a
‘defect’, which is separately defined as excluding an irregularity
in relation to a ballot. This is to ensure that the separate legislative scheme
for dealing with irregularities in withdrawal ballots is not affected.
3.306 Subclause (1) enables an act by specified persons or bodies which
was done for the purposes of a disamalgamation to be taken to have complied with
the rules of an organisation and the requirements of Part 3 of Chapter 3 if 4
years have elapsed from the day on which the act was done. The bodies or
persons specified for this purpose are the constituent part of an amalgamated
organisation or committee of management or officer of that constituent part, or
the newly registered organisation, or its committee of management or
officer.
3.307 Such validation is subject to displacement by an order of
the Federal Court under clause 128.
3.308 Subclause (2) also exempts
certain judicial decisions, orders and the like from the effects of subclause
(1).
3.309 Subclause (3) provides that this clause applies to an act done
to or by an association whenever it was done.
3.310 This clause enables the Federal Court to displace the validation
provisions of clauses 126 and 127, where it would be just to do
so.
3.311 Under subclause (1), if the Federal Court is satisfied that the
application of clauses 126 and 127 would do substantial injustice, having regard
to the interests of specified persons, it must make a declaration.
3.312 Under subclause (2), such a declaration completely displaces any
operation of clauses 126 and 127.
3.313 Subclause (3) specifies who may
seek a declaration.
3.314 This clause empowers the Federal Court, on application, to
determine whether there has been an invalidity in relation to a proposed
withdrawal from amalgamation or completed withdrawal from amalgamation and to
make certain orders to correct the invalidity.
3.315 Subclause (1) sets
out who may apply for such a determination.
3.316 Under subclauses (2)
and (3), the Court may make an appropriate declaration and orders to correct the
invalidity and validate anything consequentially made invalid owing to the
invalidity.
3.317 As a safeguard, subclause (5) requires the Court,
before making an order to rectify the invalidity or its consequences, to satisfy
itself that substantial injustice would not occur to one or more of the classes
of organisations or persons listed in that clause.
3.318 Subclause (6)
applies the section to an invalidity whenever occurring including an invalidity
occurring before the commencement of the section.
3.319 This clause provides that certain acts or omissions relating to a
proposed or completed withdrawal from an amalgamation cannot constitute a breach
of the rules of the amalgamated organisation.
3.320 This clause prohibits certain conduct designed to impede the
pursuit of a withdrawal from amalgamation (subclause (1)). The Federal Court is
empowered to issue injunctions and make other orders in respect of conduct or
threatened conduct, and to order for penalties of up to 100 penalty units in the
case of a body corporate or 20 penalty units in other cases (subclause
(2)).
3.321 Subclause (3) sets out who may apply to the Federal Court for
an order.
3.322 Subclause (4) is a deeming provision. It deems actions by
certain bodies and persons to be actions by an organisation. Subclause (5)
provides that, in certain cases, the deeming provision does not operate where an
appropriate person in the organisation took reasonable steps to prevent the
action.
3.323 Subclause (6) defines relevant terms.
4.1 Chapter 4 enables the Australian Industrial Relations Commission to
make orders in the context of demarcation disputes about the representation
rights of unions.
4.2 This clause provides an outline of the contents of the
Chapter.
4.3 The provisions of this part reflect section 118A of the WR
Act.
4.4 This clause deals with the Commission’s powers to alter the
rights of employee organisations to represent, under the Act, the industrial
interests of particular classes or groups of employees.
4.5 Subclause
(1) specifies the circumstance in which the Commission may make orders
concerning organisational coverage to orders in settlement of demarcation
dispute (the term ‘demarcation dispute’ is defined in clause
6).
4.6 Subclause (2) makes it clear that the Commission may vary any
order on application by an organisation, employer or the Minister. This is a
new provision.
4.7 Subclause (1) provides that the Commission cannot make an order
concerning organisational coverage unless it has decided not to refer the
relevant industrial dispute to conciliation, or the dispute was not fully
settled at conciliation.
4.8 Subclause (2) limits the power of the
Commission to make an order concerning organisational coverage to circumstances
where it is satisfied that the conduct or threatened conduct of an organisation
or an officer, member or employee of an organisation is preventing or
interfering with the performance of work or is harming the business of an
employer or that such consequences have ceased but are likely to recur or are
imminent.
4.9 This is intended to ensure that organisations do not have
their representation rights restricted unless their conduct is harmful to the
conduct of normal business.
4.10 This clause requires the Commission, in considering whether to make
an order under clause 133, to have regard to the matters specified in that
clause. Those matters include the wishes of the employees who are affected by
the dispute, the effect of any order on the operations of certain employers and
the consequences of not making an order on any employer, employee or
organisation involved in the dispute.
4.11 The Commission is also
required to have regard to any relevant agreements or understandings of which it
becomes aware that affect the representation rights of the organisations
concerned.
Clause 136 – Order may be subject to
limits
4.12 This clause is a technical item, which makes it clear
that an order made under clause 133 may be subject to conditions or
limitations.
Clause 137 – Organisation must comply with
order
4.13 This clause requires an organisation to which an order
under clause 133 applies to comply with the order, and gives the Federal Court
jurisdiction to make orders to ensure compliance.
4.14 This clause provides that the powers of the Commission under Chapter
4 are exercisable only by a Full Bench or Presidential Member.
5.1 This
Chapter sets out the requirements for organisations’ rules (see Part 2).
Part 3 sets out processes available to members who think that their
organisation’s rules do not comply with this Chapter, or are not being
followed.
5.2 This chapter generally reflects the relevant provisions in
Part IX of the WR Act, particularly Divisions 2 and 3 which deal with rules of
organisations and validity and performance of rules respectively.
5.3 This
clause provides an outline of the contents of the chapter.
5.4 An organisation is required to have rules which are in accordance
with the Act. Such rules can be mandatory or discretionary.
5.5 This clause specifies what must be contained in the rules of
organisations.
5.6 Subclause (1) makes provision in respect of the
content of the rules of registered organisations. Paragraph (1)(a) specifies
the organisation’s purposes and the conditions of eligibility for
membership. Paragraph (1)(b) sets out various matters for which rules must make
provision. Paragraph (1)(c) precludes rules from providing for the removal of
elected officials otherwise than for committing specified offences or for
ceasing to be eligible to hold office. Paragraph (1)(d) requires organisations
to give applicants for membership written advice about their financial
obligations as members, as well as how and in what circumstances they may
resign.
5.7 Subclause (2) provides that rules may provide for the
eligibility of membership of independent contractors who, if they were
employees, would be eligible to be members. The rules may also provide for any
other matter (subclause (3) for example, rules requiring candidates that for
office are to be members of the organisation.
5.8 This clause specifies general requirements for the rules of
organisations. It provides that rules:
• are not to be contrary
to, or fail to make a provision required by a provision of, the Act, the WR Act,
the regulations, an award or order of the Commission, an old IR agreement, or
otherwise be contrary to law;
• are not to prevent members from
observing the law or provisions of an award, an order of the Commission, an old
IR agreement, or from entering into written agreements in accordance with such
instruments;
• are not to impose oppressive, unreasonable or
unjust conditions upon members or applicants for membership, having regard to
the objects of the Act and the purposes of registration; and
• must
not be discriminatory in their application to members or applicants for
membership.
5.9 Subclause (2) provides that the rules of an organisation
are not taken to discriminate on the basis of age if the rules do not prevent an
organisation from setting its membership dues by reference to rates of pay, even
where the rates of pay are set by reference to a person’s age (e.g. junior
rates of pay).
5.10 This clause specifies what election requirements the rules of
registered organisations are to contain. Subclause (1) requires that the rules
must be designed to avoid election irregularities as far as possible and must
specifically provide for:
• election to office by a direct or
collegiate voting system (these terms are defined in clause
6);
• the conduct of every election for office by an independent
returning officer and the duties of returning officers;
• an
opportunity for technically defective nominations to be corrected (other than
nominations that are defective by reason of lack of qualification for office
(subclause (5));
• the manner by which persons may become
candidates and declaration of the result of the election;
• secret
ballots, absentee voting, the conduct of the ballot and
scrutineers.
5.11 Subclause (2) enables rules to provide for compulsory
voting.
5.12 The clause contains measures to prevent irregularities in
elections, including a new requirement that the roll close at least 7 days (but
no more than 30 days) before the opening of nominations for an election
(subclause (3)). The requirement does not prevent changes after the roll for a
ballot is closed for the purpose of correcting errors (subclause
(6)).
5.13 Subclause (4) has the effect of applying the requirements of
the clause to the rules of branches of organisations.
5.14 This clause sets out the requirements for elections by a direct
voting system.
5.15 Subclause (1) requires that rules providing for
elections by a direct voting system must provide for secret postal ballots.
(The term ‘postal ballot’ is defined in clause
6.)
5.16 Subclause (2) enables an organisation to apply to the Industrial
Registrar for an exemption from the postal ballot requirement. Such an
application must be accompanied by proposed rule alterations providing for the
conduct of election by secret ballot other than a postal
ballot.
5.17 Subclause (3) empowers the Industrial Registrar to grant an
exemption if satisfied that the proposed rule alterations will result in fuller
participation by members in the proposed form of secret ballot than would result
from a postal ballot. The Registrar must also be satisfied that members will
have an adequate opportunity to vote without intimidation. The proposed rule
alterations take effect when an exemption is granted (subclause
(4)).
5.18 Subclauses (5) and (6) provide that the exemption remains in
force until revoked. The Industrial Registrar can revoke an exemption:
• at the request of the organisation, where the Registrar is
satisfied that the rules meet the secret postal ballot requirements; or
• if the Registrar ceases to be satisfied as to the conditions
necessary for an exemption and has given the organisation and opportunity to
show cause why the exemption should not be revoked (subclause
(6)).
5.19 Subclause (7) requires the Registrar to give an organisation
an opportunity to be heard, other than where the exemption is revoked at the
request of the organisation.
5.20 Subclause (9) provides that no appeal
lies from a decision of the Industrial Registrar (under section 81 of the WR
Act) to grant an exemption from a postal ballot requirement.
5.21 Subclause (10) applies the clause to branch elections as well as
elections in the organisation.
5.22 This clause deals with the terms of office of persons elected to
office within organisations and their branches.
5.23 Subclause (1)
requires the rules of an organisation to provide for terms of office for
officers of no longer than 4 years without re-election.
5.24 Subclauses
(2) and (3) enable the rules of an organisation or branch to provide for
extension of terms of office in order to synchronise elections, but not so that
the term exceeds 5 years in total.
Clause 146 – Rules may
provide for filling of casual vacancies
5.25 This clause enables the
rules to provide for the filling of casual vacancies either by an election or in
another manner consistent with the requirements of the clause.
5.26 However, the rules must provide for an election where the unexpired
part of the term of the vacancy is more than 12 months or three quarters of the
term of the office, whichever is greater (subclause (2)).
5.27 Subclause
(3) provides that a person who fills a casual vacancy in accordance with a
procedure authorised under this clause is taken to have been elected for the
purposes of the Act.
5.28 Subclause (4) applies the clause to branch
elections. Subclause (5) defines the relevant terms.
5.29 This clause provides for the issuing of guidelines setting out model
rules for the conduct of organisations’ elections.
5.30 The
guidelines can be issued by the Minister (or the Electoral Commissioner if the
Minister has delegated his power under this clause – see clause 343) by
notice published in the Gazette and can be adopted by organisations in
whole or in part, with or without modification.
5.31 This clause provides for the issuing of guidelines setting out model
rules about the conduct of officers and employees.
5.32 Guidelines can
be issued by the Minister by notice published in the Gazette and can be adopted
by organisations in whole or in part, with or without modification.
5.33 This clause sets out the conditions under which organisations may
make loans, grants or donations.
5.34 Subclause (1) requires the rules
of an organisation or branch to provide that loans, grants or donations of more
than $1,000 may only be made if:
• it has been approved by the
relevant committee of management; and
• the committee of
management is satisfied that the payment is in accordance with the rules, and,
in the case of a loan, there is adequate security and satisfactory repayment
arrangements.
5.35 This requirement does not apply to payments made by
the organisation for out-of-pocket expenses incurred by persons for the benefit
of the organisation or branch concerned (subclause (4)).
5.36 Subclause
(2) provides an exception to this requirement, by permitting the rules to enable
the organisation to make loans, grants or donations of up to $3,000 where the
amount is for the purposes of relieving a member or member’s dependent
from severe financial hardship. Any such loan is subject to subsequent approval
by the committee of management. In deciding whether to approve such a loan,
grant or donation, the committee of management must have regard to whether the
payment was made under the rules and, in the case of a loan, whether there is
adequate security and satisfactory repayment arrangements (subclause
(3)).
5.37 Subclauses (5) and (6) extend the operation of this clause to
branches of organisations and members of such branches.
5.38 This clause defines relevant terms for the purposes of this
subdivision.
5.39 This clause provides for membership agreements between organisations
and unions registered under State laws. This enables members of a counterpart
state union who would otherwise be ineligible to join the organisation to become
members for the purpose of participating in the internal affairs of the
federally registered union. It does not enable the organisation to represent a
state union member’s industrial interests under federal law, but there is
provision for representing these members if they subsequently become eligible
for membership under the organisation’s eligibility rules (subclauses (1)
and (7)).
5.40 Subclause (2) requires a membership agreement to be lodged
with the Industrial Registrar. The agreement comes into force when the
Industrial Registrar enters the particulars of the agreement on the register
kept under clause 13 (subclause (3)).
5.41 The Industrial Registrar is
not to enter the particulars in the register until directed by the Commission
(subclause (4)). The Commission cannot make such an order until it is satisfied
that the agreement is not contrary to:
• any object of the Act or
the WR Act;
• any subsisting order made by the Commission about the
organisation’s eligibility rules; or
• any subsisting
agreement or understanding that deals with the organisation’s entitlement
to represent the industrial interests of a particular class or group of
employees under this Act or the WR Act;
5.42 The Commission must also be
satisfied that the membership agreement was entered into only:
• to
overcome legal or practical difficulties that could arise in relation to the
participation of State union members in the administration of the organisation
or the conduct of its affairs; or
• to encourage and facilitate an
amalgamation by the organisation and another
organisation.
5.43 Subclauses (8) to (12) provide for the termination of
a membership agreement by the Commission.
5.44 This clause provides for agreements between organisations and State
unions about assets and liabilities.
5.45 Subclause (1) enables an
organisation’s rules to provide for entry into agreements with State
unions about management and control of assets and liabilities of the
organisation and the State union.
5.46 Subclause (2) requires the
agreement to be in the prescribed form.
5.47 Under subclause (3), an
assets and liabilities agreement must be lodged with the Industrial Registry and
considered by the Commission.
5.48 Subclause (6) provides that before
the agreement can take effect, the Commission has to be satisfied that the
agreement is:
• not contrary to any object of the Act or the WR
Act; and
• does not adversely affect the interests of any lessor,
lessee or creditor of either party to the agreement.
5.49 If the
Commission is satisfied of these matters, it can direct the Industrial Registrar
to enter the particulars of the agreement in the register of organisations at
which point the agreement comes into force (subclauses (4) and (5)).
5.50 A party to an assets and liabilities agreement made under clause 152
may apply to the Federal Court for orders seeking compliance or resolving
difficulties that have arisen with respect to the agreement.
5.51 In
dealing with an application, the Court may make such orders as it thinks fit,
but must have regard to the interests of any lessor, lessee or creditor of
either of the parties (subclauses 1) and (2)).
5.52 Subclause (3)
ensures that any order made under subclause (1) has effect despite anything in
the rules of the organisation or State union who are parties to the
agreement.
5.53 This clause sets out how parties terminate an assets and liabilities
agreement by entering into a ‘termination agreement’ and having it
approved by the Federal Court.
5.54 A ‘termination agreement’
must make appropriate provision for the management and control of the assets and
liabilities after the termination (subclause (2)).
5.55 Subclause (3)
provides that in deciding whether or not there is ‘appropriate
provision’, the Court must have regard to:
• the positions of
the parties in relation to their respective assets and liabilities before the
agreement took effect;
• the fairness of the manner in which the
assets and liabilities acquired after the agreement will be dealt with after the
termination of the agreement;
• the way in which the interests of
lessors, lessees or creditors of the parties will be affected by the
termination; and
• any other factor the Court considers relevant.
5.56 If the Court approves the termination agreement, it must direct the
Industrial Registrar to enter the particulars of the agreement and of any orders
made by the Court in the register of organisations kept under clause 13
(subclause (4)).
5.57 Subclause (5) provides that a termination agreement
takes effect on the day specified by the Court, provided that day is not prior
to the day the Court approved the agreement.
5.58 This clause provides that the powers of the Commission under
Division 4 of Part 2 of Chapter 5 must be exercised by a Presidential Member.
5.59 This clause enables the Industrial Registrar to make alterations to
an organisation’s rules to bring them into conformity with the
requirements of the Act. The organisation must be given an opportunity to be
heard on the matter before any such alterations are made (subclause
(1)).
5.60 The alterations take effect on the date of the instrument
making them (subclause (2)).
5.61 Subclause (1) enables the Commission to alter the rules of an
organisation if the organisation has breached an undertaking to avoid
demarcation disputes that was given when it was being registered. The
Commission can make such alterations that are necessary to remove the overlap
between the organisation’s eligibility rules and the eligibility rules of
another organisation.
5.62 The organisation and the other organisation
must be given an opportunity to be heard on the matter before alterations are
made (subclause (2)). Alterations take effect on the date of the instrument
making them (subclause (3)).
5.63 This clause sets out the procedure for changing the name of an
organisation or altering its eligibility rules.
5.64 Subclause (1)
requires that the Commission consent in order to any change to an
organisation’s name or eligibility rules. (This provision does not apply
to changes ordered by the Commission or that occur as a result of an
amalgamation or withdrawal from an amalgamation (subclause
(10)).
5.65 The Commission must not consent to a change in the name or
the eligibility rules unless it has been made in accordance with the
organisation’s rules and the proposed name is not the same as another
organisation’s name or so similar as to cause confusion (subclauses (2)
and (3)).
5.66 In the case of proposed changes to an organisation’s
eligibility rules, the Commission must not give consent if the people who would
become eligible to be members as a result of the change could more conveniently
belong to another organisation which could more effectively represent those
members (subclause (4). However, under subclause (5), this requirement does not
apply if the Commission accepts an undertaking from the organisation seeking the
alteration to avoid demarcation disputes that might otherwise
arise.
5.67 The Commission may refuse to consent to an eligibility rule
alteration if satisfied that the change would contravene an agreement or
understanding that deals with the organisation’s right to represent the
industrial interests of a particular class or group of persons (subclause (6)).
5.68 The Commission may also refuse consent if the alteration to
eligibility rules would change the effect of any order made by the Commission
under clause 133 of the Act (orders about representation rights of organisations
of employees) and there would be a serious risk of a demarcation dispute
affecting the performance of work in an industry or harm the business of an
employer (subclause (7)).
5.69 The grounds for refusal of eligibility
rule changes in subclauses (6) and (7) are not exhaustive (subclause (8)). Rule
changes come into effect on the date of Commission consents or another date set
down by the Commission.
5.70 This clause provides for the alteration of rules, other than
eligibility rules, on certification by a Registrar that the alteration complies
with and is not contrary to the Act, the WR Act, awards, certified agreements
and old IR agreements, is not otherwise contrary to law, and has been made under
the rules of an organisation.
5.71 Subclause (2) also enables a
Registrar, with the consent of the organisation to amend the alteration of rules
(other than eligibility rules) to correct typographical, clerical or formal
errors.
5.72 This clause does not apply to certain rule alterations which
are specifically listed in subclause (4) relating to amalgamations, withdrawals
from amalgamation, secret postal ballots, and rule changes initiated by the
Registrar or made in pursuance of an order of the Federal
Court.
5.73 Rule changes come into effect on the day they are certified
by the Registrar (subclause (3)).
5.74 This clause provides that details of changes in the name of an
organisation or alterations of the eligibility rules must be entered into the
register of organisations and the organisation’s certificate of
registration amended accordingly.
5.75 This clause provides that a copy of an organisation’s rules
certified by a Registrar is evidence of the rules of the organisation in
proceedings under the Act or the WR Act.
5.76 This clause provides that the powers of the Commission under this
Division must be exercised by a Presidential Member.
5.77 This clause establishes a mechanism for a member to apply to the
Court in relation to rules that contravene clause 142, and enables the Court to
make orders declaring that rules (in whole or in part) contravene the
requirements of the Act, and are therefore void. The Court has the discretion
to adjourn proceedings to enable the organisation to alter its rules (subclause
(5)).
5.78 An application under this provision can be made by a member
or, in the case of an application on the grounds that the organisation’s
rules are oppressive, unreasonable, unjust or discriminatory in contravention of
paragraphs 142(1)(c) and (d), an applicant for membership (subclauses (3) and
(4)).
5.79 Subclause (4) provides that an organisation must be given the
opportunity to be heard in relation to an application under this provision.
5.80 Under subclause (6), if the Court makes an order declaring that a
rule contravenes clause 142, the rule is void from the date of the
declaration.
5.81 Once an order has been made, an organisation has 3
months to change the relevant rule or rules so that it is brought into
conformity with clause 142. This period may be extended (subclause (8)). If
this is not done, the rules will be altered by the Industrial Registrar or, in
the case of eligibility rules, a Presidential Member of the Commission
(subclause (7)).
5.82 Under subclause (10) the Court may make such
interim orders that it considers appropriate in relation to proceedings taken
under this clause (see subclauses (1) and (11)).
5.83 Subclauses (12)
and (13) define relevant terms.
5.84 This clause enables members to apply to the Court for an order
directing a person to perform or observe the rules of the
organisation.
5.85 Subclauses (3) and (4) provide that the Court has a
discretion to:
• refuse to deal with an application unless it is
satisfied that all reasonable steps have been taken to have the issue resolved
within the organisation; or
• make interim orders that it considers
appropriate.
5.86 Subclause (5) provides that an order under subclause (4) continues in
force until the proceeding is completed unless it is expressed to operate for a
shorter period or is sooner discharged.
5.87 Under subclause (6), the
Court cannot make an order under this clause that would invalidate an election.
(This is because Chapter 7 provides the avenue for getting orders from the Court
declaring elections invalid.)
5.88 When dealing with a matter under this
clause, the Court may, if it finds a rule contravenes clause 142, issue a
declaration to that effect (subclause (7)). Clause 163 (other than subclauses
(1) to (4)) applies in relation to such an order (subclause (8)).
5.89 Subclause (9) defines relevant terms.
6.1 Chapter 6 sets out rules about membership of organisations, including
entitlement to membership and the circumstances in which a person may cease to
be a member. It also sets out the role of the Federal Court in deciding a
person’s membership status.
6.2 This Chapter generally reflects
Division 9 of Part IX of the WR Act.
6.3 This clause provides an outline of the contents of the
Chapter.
6.4 This clause sets out the entitlement of persons to become and to
remain a member of an organisation.
6.5 Subclauses (1) and (2) establish
an entitlement to membership of organisations of employees on payment of the
relevant fee, provided that the person seeking membership is eligible under the
organisation’s rules to join. This right is subject to a “bad
character” qualification.
6.6 A person admitted to membership is
entitled to remain a member so long as he or she complies with the rules of the
organisation. However, the person is not entitled to remain a member if he or
she ceases to be eligible to become a member unless the organisation’s
rules otherwise provide.
6.7 Subclause (3) extends entitlement to
membership to persons qualified to be employees and persons who are seeking
employment for the first time in an occupation, industry or enterprise covered
by the organisation’s eligibility rules.
6.8 Subclauses (4) and
(5) deal with entitlement to membership of organisations of employers.
6.9 An employer is not able to remain a member if it ceases to be
eligible to become a member and the rules of the organisation do not permit the
employer to remain a member.
6.10 The entitlement to membership
established by this clause (see subclauses (1) and (4)) overrides inconsistent
rules, except to the extent that those clauses expressly require compliance with
those rules (subclause (6)).
6.11 This clause enables the Court to make declarations in relation to a
person’s entitlement to membership. Subclause (1) enables a person or
organisation to apply to the Court for a declaration as to the entitlement of
the person to become or remain a member of the organisation.
6.12 Subclause (3) provides that the Court may make an order requiring
an organisation to treat a person as a member if subclause 166(1) or (4)
applies.
6.13 If an order is made under paragraph (3)(a), subclause (4)
provides that the person specified in the order becomes a member of the
organisation. If an order is made under paragraph (3)(b), and the person pays
any amount liable to the organisation, the person is taken to have been a member
of the organisation during the period specified in the
order.
6.14 Subclause (6) provides for both the organisation and person
concerned to be heard by the Court when considering an application under this
clause.
6.15 This clause applies to people who are eligible for membership, have
applied to become a member and have, within the month before the application,
acted in good faith as, and been treated by the organisation as, a
member.
6.16 The clause provides that such people are entitled to be
admitted to membership and treated as if they had been a member during the whole
of the time when they acted as and were treated as a member and inclusive of the
time from their application to admission as a member.
6.17 This clause requires an organisation to provide a statement
detailing a member’s membership information within 28 days of a request
from the member.
6.18 This clause enables the Court when dealing with a matter under the
Act or the WR Act to order rectification of an organisation’s register of
members where this is necessary.
6.19 This clause enables the Court, on application of an organisation, to
order that a person’s membership ceases from a specified day, for a
specified period.
6.20 This clause establishes a new requirement that, if a person who is
obliged by the rules of the organisation to pay membership dues has not paid
those dues for a continuous period of 24 months, the organisation must remove
the person’s details from its register of members within 12 months from
the end of the 24 month period.
6.21 Any period where the member was not
required under the rules of the organisation to pay dues is to be disregarded in
calculating the continuous period (subclause (2)).
6.22 Subclause (3)
provides that a person whose name is removed from the register in this way
ceases to be a member on the day the name is removed, in spite of anything in
the rules of the organisation.
6.23 This clause operates with respect to people who apply for membership
of an organisation within 6 months after their membership ceased under clause
172. It provides that an organisation must not require such people to pay any
entrance fee associated with a new membership. This provision does not affect
an organisation’s ability to require that such people pay outstanding dues
in order to maintain continuity of financial membership.
6.24 This clause sets out how a person may resign from an organisation.
It supplements clause 141, which requires that rules of organisations provide
for resignation.
6.25 Subclauses (1) and (2) provide that a resignation
must be in writing and stipulates that it takes effect:
• in the
case of where a member ceases to be eligible to become a member, from the day
the notice is received or the date specified in the notice, which ever is
later;
• in all other cases, at the end of two weeks or such
shorter period specified in the rules or the date specified in the notice,
whichever is later.
6.26 The note to subclause (1) makes clear that a
notice of resignation can be given electronically, if the rules of the
organisation allow for this.
6.27 Subclause (3) allows an organisation
to sue for any dues payable but not paid by the former member in relation to the
period before the resignation took effect. (This right is subject to clause
178.)
6.28 Subclauses (4) and (5) deal with technical issues in relation
to the receipt of a notice of resignation. Subclause (6) deems a notice of
resignation to be valid notwithstanding any procedural defect if accepted by the
organisation.
6.29 A note to this clause directs readers to clause 359,
which allows regulations to be made to require employers who offer payroll
deduction facilities to inform employees that cessation of payroll deductions by
an employee does not constitute resignation.
6.30 This clause prohibits a person from knowingly or recklessly making a
false or misleading statement about the person’s membership of an
organisation in an application made under this Act or the WR Act. This is a
civil penalty provision.
6.31 This clause prohibits a person from knowingly or recklessly giving
false or misleading information about resignation from an organisation. This is
a civil penalty provision.
6.32 This clause provides that a dispute between an organisation and any
of its members is to be decided under the rules of the
organisation.
6.33 Subclauses (2) provides that any money payable to an
organisation may be sued for and recovered as a debt due to the
organisation.
6.34 Subclause (3) provides that a Court can order a member
of an organisation to contribute to a penalty incurred or money payable by the
organisation under an award, order, certified agreement or old IR agreement.
Such a contribution is not to exceed $20.
6.35 This clause prevents an organisation from taking legal action to
recover outstanding membership dues after 12 months from the day on which the
amount became payable.
6.36 This clause provides that in an action by an organisation to recover
outstanding membership dues for a period, it is a defence that the
person:
• had ceased to be eligible to become a member of the
organisation; and
• has not actively participated in the affairs of
the organisation since that time.
6.37 Where the defence is successful,
the person is taken to have ceased to be a member from the time the person
ceased to eligible for membership.
6.38 This clause enables a person to apply to a Registrar for a
conscientious objection certificate.
6.39 Subclause (1) requires the
Registrar to issue a certificate if satisfied that the person’s
conscientious beliefs do not allow them to be a member of an employer or
employee association and the person pays the prescribed fee. The prescribed fee
is the annual subscription that the person would pay if they became a member of
the association they were eligible to join.
6.40 A decision by the
Registrar under this clause is not subject to appeal to the Commission
(subclause (2)).
6.41 A certificate remains in force for the period (of
not more than 12 months) specified in the certificate, but may be renewed
(subclause (3)).
6.42 Subclause (4) enables the Registrar to revoke a
certificate in limited circumstances.
6.43 Subclause (5) makes clear that
the holding of a certificate of conscientious objection does not prevent the
employer being a party to an industrial dispute.
6.44 Subclause (6)
defines terms used in this clause.
7.1 This Chapter deals with the conduct of elections for offices and for
other positions in organisations, and for inquiries by the Federal Court into
elections. It also contains rules concerning disqualification from office. All
of the provisions in this Chapter reflect Divisions 4, 5 and 6 of Part IX and
relevant offences in Part XI of the WR Act. However, there are also new
provisions reflecting the recommendations of the 1997 report by the Joint
Standing Committee on Electoral Matters relating to industrial
elections.
7.2 This clause provides a simplified outline of the chapter.
7.3 This clause requires all elections for office within an organisation
or branch to be conducted by the Australian Electoral Commission (AEC). It
provides that the Commonwealth bears the cost of conducting each election for
office in an organisation or a branch of an organisation. This reflects
subsection 215(4) of the Workplace Relations Act 1996.
7.4 Where
an organisation has been granted an exemption under clause 186 the requirements
of subclause (1) do not apply (subclause (2)).
7.5 Subclause (3) requires
the AEC to conduct elections for positions other than for offices where the
organisation has made a request under clause 187.
7.6 This clause allows an organisation or branch to apply to be exempted
from the requirement that the AEC conduct elections for office, and sets out the
preconditions and processes for making the application.
7.7 This clause provides that a member of an organisation or branch that
has made application for an exemption under subclause 183(1) may make objections
to that application.
7.8 This clause creates new offences relating to the lodging of
objections under clause 184. The offences are consistent with Commonwealth
criminal law policy.
7.9 It is an offence to use, cause, inflict or
procure violence, injury, punishment, damage, loss or disadvantage to a person
who has lodged an objection under clause 184 (subclause (1)).
7.10 Paragraph (2)(a) creates offences in relation to bribery. It
prohibits a person from giving, or offering or promising to give, any property
or other benefit with the intention of influencing or affecting another person,
because the person has or intends to lodge an objection.
7.11 Paragraph
(2)(b) prohibits a person from asking or obtaining, or offering or agreeing to
ask for or obtain any property or other benefit, on the understanding that the
lodging of the section 184 objection will be influenced or
affected.
7.12 The maximum penalty for these offences is 30 penalty
units.
7.13 This clause sets out the criteria for granting an exemption from the
requirement that the AEC conduct elections for offices and the circumstances in
which such an exemption may be revoked.
7.14 This clause provides that a
Registrar may allow an organisation or branch to conduct its own elections for
office where, after any objections to the application have been heard, the
Registrar is satisfied that:
• the rules of the organisation
concerning elections for office comply with the Act; and
• if
granted the exemption, the organisation will conduct the election in accordance
with those rules and the Act and in a manner that allows members to vote without
intimidation.
7.15 An exemption may be granted in relation to election
for a particular office or in relation to elections for an organisation or a
branch generally.
7.16 Subclause (2) provides that an exemption may be
revoked by a Registrar on application by the committee of management of an
organisation, or on the Registrar’s own motion, if the Registrar is no
longer satisfied that the criteria outlined above are being met. Before
revoking an exemption, the Registrar must give the organisation’s
committee of management an opportunity to show cause why the exemption should
not be revoked.
7.17 This clause is a new provision which allows an organisation to make
a written request to the AEC to conduct an election for a position other than an
office where the organisation’s rules require an election to be held for
such a position.
7.18 This clause provides (in relation for elections for office that are
conducted by postal ballot) that a vote in an election will not be counted
unless a declaration envelope in the approved form is used. This is a new
requirement.
7.19 This clause requires a Registrar to arrange for the conduct of an
election by the AEC once an organisation or branch has lodged the prescribed
information relating to the election with the Industrial Registry.
7.20 Before arranging for the conduct of the election by the AEC, the
Registrar must be satisfied that an election is required to be held under the
rules of the organisation and, where the election is for a position other than
an office, the organisation or branch has made a request under clause
187.
7.21 This clause creates a new offence in relation to the use of
organisational resources. It is an offence for an organisation or branch to
use, or allow to be used, its property or resources to help one candidate
against another candidate in an election for office or other position conducted
under this Part.
7.22 The maximum penalty is 100 penalty units.
7.23 This clause makes it an offence for an officer or an employee of an
organisation or branch to fail to comply with a request from a returning officer
for a copy of the organisation’s register. The offence is one of strict
liability (subclause (4)). It is a defence if that person complied with the
request as promptly as he or she was capable (subclause (3)).
7.24 If a
register, or the relevant part, is kept electronically, the returning officer
may require that it be produced in that form (subclause (5)).
7.25 The
request must specify the time within which the register must be made available,
which must not be less than 7 days after the request is given (subclause
(6)).
7.26 Where a request is made under clause 191, this clause obliges the
secretary (or other prescribed officer) of an organisation to make and provide,
to the Registry, a declaration that the register has been maintained as required
by subclause 230(2). This is a new provision.
7.27 The declaration must
be in writing, signed by the person making it, and provided to the Industrial
Registry no later than the day before voting in the relevant election commences
(subclause (2)).
7.28 Subclause (3) prohibits a person to making a
statement in the declaration that is false or misleading. This is a civil
penalty provision.
7.29 This clause requires an electoral official (defined in clause 6 as
an Australian Electoral Officer or a staff member of the AEC), in conducting an
election for office or other position, to comply with the rules of an
organisation or branch. However, it also provides that the electoral official
may, in spite of the rules, take such action as necessary to ensure that no
irregularities occur in relation to the election, or in order to remedy any
procedural defects that appear to exist in the rules.
7.30 Subclause
(2) makes it an offence for a person to fail to comply with a direction given by
an electoral official under subclause (1). This does not apply so far as the
person is not capable of complying or has a reasonable excuse (subclauses (3)
and (4)). Legislative notes make it clear that the defendant bears the
evidentiary burden in this respect.
7.31 Subclause (5) states that the
offence in subclause (2) is a strict liability offence.
7.32 Subclause
(6) provides that an action taken or done in compliance with a direction under
subclause (1) is not invalid merely because it results in a breach of the rules
of the organisation or branch.
7.33 Subclause (7) requires the AEC to
arrange for the completion of an election where an electoral official dies or
ceases to be qualified to conduct the election.
7.34 This clause is
based on section 215 of the WR Act, but extends the application of the provision
to elections for positions other than offices where they are conducted by the
AEC.
7.35 This clause provides that it is an offence to hinder or obstruct an
electoral official in the performance of his or her functions or any other
person complying with a direction under subclause 193(1).
7.36 This clause provides for a number of offences in relation to
interference with an election process.
7.37 Subclause (2) makes it an
offence to interfere with ballot papers, such as by destroying or altering a
ballot paper.
7.38 Subclause (3) makes it an offence to influence or
affect a person’s candidature or voting intention by such means as threats
or inflicting injury.
7.39 Subclauses (4) and (5) are new provisions,
which prohibit the giving, offer, or acceptance of, bribes to influence a
candidate to withdraw as a candidate or change their voting preference or
support for any candidate. The prohibition is consistent with Commonwealth
criminal law policy and the Commonwealth Electoral Act
1918.
7.40 Subclause (6) prohibits a person from requiring or
inducing another person to allow them to see a ballot paper, or to show another
person or permit another person to have access to a ballot paper otherwise than
in the performance of duties for the purpose of the election.
7.41 The
maximum penalty for each of these offences is 30 penalty units.
7.42 This clause provides for the discontinuation of an election where a
candidate has died.
7.43 Clause 197 requires the AEC to provide a post-election report
detailing prescribed matters. The report must be provided to the organisation
or branch concerned and to the Industrial Registrar. If the AEC is of the view
that a particular rule is difficult to interpret or apply it must note that fact
in the report (subclause 197(4)).
7.44 Subclause 197(3) requires the AEC
to state in the report, if it is of that opinion, that the register of members
or part thereof made available to it for the purposes of the ballot contained an
unduly large proportion of members’ addresses that were not current or
were workplace addresses. Any relevant model rules that may assist the
organisation or branch to address this matter must also be included in the
report.
7.45 Subclause 198(1) requires an organisation or branch to
provide the AEC with a written response within 30 days of being given a report
which identified rules that were difficult to apply. The organisation or branch
is required to make available to its members the relevant extract of the AEC
report and a copy of the response (subclauses (3) to (5)).
7.46 Whilst
not limiting the ways in which an organisation can satisfy this requirement,
subclause 198(6) provides that an organisation complies with the requirement if
it lodges, with the Registry:
• a copy of the relevant extract of
the report together with a declaration undertaking to provide a copy of the
extract and the response to any member on request (the declaration must be
signed by the secretary or other prescribed officer: subclause (7));
or
• the organisation gives notice in the next edition of the
organisation’s journal, or in an appropriate newspaper article, that a
copy of the extract and the response is available on request free of charge to
all members.
7.47 Subclause (8) imposes civil penalties in relation to
knowingly or recklessly making false or misleading statements in such a
declaration. Subclause (9) defines relevant terms.
7.48 Subclauses (1) and (2) require an organisation or branch and the AEC
(or the organisation where it has an exemption to conduct its own election) to
keep documents, including ballot papers, relevant to an election for office for
one year after the completion of the election.
7.49 Contravention of
these requirements by an organisation or branch or its officers or employees is
an offence (subclauses (3) and (5)). Subclauses (4) and (6) provide that these
offences do not apply where the person has a reasonable excuse. A legislative
note states that the defendant bears the evidentiary burden with respect to the
defence.
7.50 Contravention by an organisation or a branch carries a
maximum penalty of 100 penalty units; contravention by an officer of employee of
an organisation or branch carries a maximum penalty of 20 penalty
units.
7.51 The clause is similar to section 217 (in relation to
preservation of ballot papers etc) and section 314 (in relation to the offence
elements) of the WR Act. The defences in subclauses (4) and (6) are new.
7.52 Subclause (1) provides that a member of an organisation, who claims
there has been an irregularity in relation to an election for office, may apply
to the Federal Court to inquire into the matter (‘irregularity’ is
defined in clause 6).
7.53 If the Electoral Commissioner believes that
the result of an election for office has been affected by an irregularity in
relation to the election, subclause (2) requires the Electoral Commissioner to
apply to the Federal Court for an inquiry.
7.54 Subclause (3) provides
that the Electoral Commission may apply for an inquiry if it is believed that an
irregularity in relation to an election for office may have occurred.
7.55 Subclause (1) is similar to section 218 of the WR Act. Subclauses
(2) and (3) are new provisions reflecting the recommendations from the 1997
report by the Joint Standing Committee on Electoral Matters relating to
industrial elections.
7.56 This clause deals with the instituting of inquiries.
7.57 Subclauses (2) and (3) of this clause permits the Federal Court to
authorise the Industrial Registrar to take certain action where an application
for an inquiry has been made under clause 200. Before making such an order, the
Court may give an interested person an opportunity to object (subclause
(3)).
7.58 Paragraph (5)(a) makes it an offence to contravene a request
by an official under paragraph (2)(c) for the production of documents in
relation to an election. The offence in paragraph (5)(a) is one of strict
liability. Paragraph (5)(b) makes it an offence to obstruct the Registrar or a
person acting on the Registrar’s behalf in the performance of their
duties. Both offences carry a maximum penalty of 30 penalty
units.
7.59 Subclause (7) provides that the offence in paragraph (5)(a)
is subject to a reasonable excuse defence. In accordance with drafting
practice, a legislative note states that the defendant bears the evidentiary
burden with respect to the defence.
7.60 This clause also contains
provisions consistent with Commonwealth criminal law policy concerning
requirements for the provision of documents and protection from
self-incrimination (subclauses (8) and (9)).
7.61 This clause is a new provision which is intended to reflect
Commonwealth criminal law policy in relation to right of entry to premises.
This clause requires identity cards to be issued by the Industrial Registrar to
designated registry officials for use in respect of actions taken under clause
202.
7.62 It is an offence to fail to return an identity card upon
ceasing to be a registry official. A maximum penalty of 1 penalty unit is
prescribed (subclause (6)).
7.63 This is a strict liability offence, but
it is a defence if the card was lost or destroyed (subclauses (7) and
(8)).
7.64 This clause specifies the types of interim orders that can be made
by the Federal Court where an inquiry into an election has been instituted.
7.65 This clause requires the Federal Court to permit all persons with an
interest in the inquiry to appear at the inquiry. This clause also provides for
the procedure of the court in relation to election inquires.
7.66 This clause details the actions that can be taken by the Federal
Court in the course of conducting an inquiry and in the event of finding that an
irregularity has occurred. If the Court finds that an irregularity has
happened, orders that the Court may make include:
• ordering a
fresh election;
• ordering that a step in an election be taken
again (where the election is yet to be completed);
• orders in the
relation to the holding of office pending fresh elections.
7.67 Where the Court makes an order for a new election under paragraph
206(4)(c), this clause requires the Industrial Registrar to arrange for the AEC
to take the necessary steps in relation to an election or for the conduct of an
election.
7.68 This clause provides the Court with the power to grant injunctions
as it considers necessary for the effective performance of its functions and
enforcement of orders under this Part.
7.69 This clause enables the Court to declare certain acts to be valid,
despite having declared void the election of the person who performed those
acts.
Part 4 disqualifies persons who have been convicted of certain offences
or who are subject to a pecuniary penalty order for failing to obey orders or
directions under Part 3 of Chapter 9 from holding or seeking office in a
registered organisation.
7.70 This clause provides a simplified outline of the contents of Part 4
of the Chapter (which relates to the disqualification from office).
7.71 This clause provides a simplified outline of Division 2 of Part 4,
which concerns disqualification from office of persons convicted of prescribed
offences.
7.72 This clause defines the term ‘prescribed offence’.
7.73 This clause defines the phrase ‘convicted of a prescribed
offence’. Among other things, it limits, in relation to certain offences,
the circumstances in which conviction provides a basis for disqualification from
holding an office in an organisation.
7.74 This clause provides that for the purpose of applications under this
Part:
• certificates issued by court registrars are evidence of
conviction or acquittal, or
• certificates issued by an officer in
charge of a prison are evidence of release dates.
7.75 This clause deals with the eligibility of a person convicted of a
prescribed offence to stand for election to an office or to hold an office in an
organisation.
7.76 Subclause (1) provides that a person who has been
convicted of a prescribed offence may not seek election to, or be elected or
appointed to, an office unless:
• a period of 5 years has elapsed
since the person’s conviction or release from imprisonment for the
prescribed offence;
• the person has been granted “leave to
hold office in organisations” by the Federal Court under this Part, or,
where the person has been refused such leave but disqualified for less than 5
years, the shorter period of disqualification has elapsed since the
person’s conviction or release from imprisonment for the prescribed
offence.
7.77 Subclause (2) provides that an office holder convicted of a
prescribed offence ceases to hold office 28 days from the date of the
conviction, unless the person applies to the Court under this Part within that
28 day period.
7.78 Subclause (3) provides that where an application is
made to the Court by an office holder and the application is not determined by
the Court within 3 months, or such extended period as allowed by the Court, the
office holder shall thereupon cease to hold office.
7.79 Subclause (4)
sets out the conditions applying to extensions of time to enable an office
holder to continue to hold office while the Court deals with an
application.
7.80 Subclause (5) gives an organisation, a member of an
organisation, and the Industrial Registrar the right to apply to the Court for a
declaration as to whether or not a person is disqualified from being a candidate
for election, being elected or appointed to office, or from continuing in
office.
7.81 Subclause (6) makes it clear that the granting of leave
under this Division does not affect the person’s disqualification as a
result of another conviction for a prescribed office in respect of which no
application has been made to the Court for leave or, where it has, leave has
been refused.
7.82 This clause deals with applications to the Federal Court by persons
convicted of a prescribed offence for leave to stand for election, or to be
appointed, to an office in an organisation.
7.83 Under subclause (1), a
person who wants to be a candidate for election or to be appointed to an office
but who has been convicted of a prescribed offence, or released from
imprisonment in respect of that conviction within the preceding 5 years, may
apply to the Court for leave to hold office in
organisations.
7.84 Subclause (2) empowers the Court to grant an
application, to refuse it, or, in the case of a refusal, to specify a shorter
period of disqualification.
7.85 Subclause (3) provides that the holder
of an office who has been convicted of a prescribed offence and who has been
refused leave to continue to hold office shall thereupon cease to hold
office.
7.86 Subclause (4) provides that an application to the Court may
only be made where the applicant has not, in relation to that conviction,
already applied for leave to hold office in organisations.
7.87 This clause provides for applications to be made to the Federal
Court for leave to continue to hold office in organisations by office holders
convicted of a prescribed offence.
7.88 This clause sets out the matters which the Federal Court must have
regard to for the purposes of exercising its power to grant leave to stand for
office or continue to hold office.
7.89 Subclause (1) provides that the Federal Court may make such orders
as it considers appropriate to give effect to declarations made under subclause
215(5). Subclauses (2) and (3) deal with the right of persons and organisations
to be heard in proceedings under this Part.
7.90 This clause preserves the operation of Part VIIC of the Crimes
Act 1914, which includes provisions relieving persons from disclosing spent
convictions.
7.91 This clause provides a simplified outline of Division 3 of Part 4
which concerns disqualification from office of persons on whom certain
prescribed pecuniary penalty orders have been imposed.
7.92 This clause defines the term ‘prescribed order’.
7.93 This clause provides that for the purpose of applications under this
Division, certificates issued by court registrars are evidence of the making of
a prescribed order or of a finding that a person has not contravened a provision
of Part 3 of Chapter 9.
7.94 This clause deals with the eligibility of a person against whom a
prescribed order has been made to stand for election to an office or to hold an
office in an organisation.
7.95 Subclause (1) provides that a person
against whom a prescribed order has been made may not seek election to, or be
elected or appointed to, an office unless:
• a period of 5 years
has elapsed since the order was made; or
• the person has been
granted “leave to hold office in organisations” by the Federal Court
under this Division, or, where the person has been refused such leave but
disqualified for less than 5 years, the shorter period of disqualification has
elapsed since the order was made.
7.96 Subclause (2) provides that an
office holder against whom a prescribed order has been made ceases to hold
office 28 days from the date of the order, unless the person applies to the
Court under this Division within that 28 day period.
7.97 Subclause (3)
provides that where an application is made to the Court by an office holder and
the application is not determined by the Court within 3 months, or such extended
period as allowed by the Court, the office holder shall thereupon cease to hold
office.
7.98 Subclause (4) sets out the conditions applying to extensions
of time to enable an office holder to continue to hold office while the Court
deals with an application.
7.99 Subclause (5) gives an organisation, a
member of an organisation, and the Industrial Registrar the right to apply to
the Court for a declaration as to whether or not a person is disqualified from
being a candidate for election, being elected or appointed to office or from
continuing in office.
7.100 Subclause (6) makes it clear that the
granting of leave under this Division does not affect the person’s
disqualification as a result of the making of another prescribed order against
that person in respect of which no application has been made to the Court for
leave or, where it has, leave has been refused.
7.101 This clause deals with applications to the Federal Court by persons
against whom a prescribed order has been made for leave to stand for election,
or to be appointed, to an office in an organisation.
7.102 Under
subclause (1), a person who wants to be a candidate for election or to be
appointed to an office but against whom a prescribed order has been made within
the preceding 5 years, may apply to the Court for leave to hold office in
organisations.
7.103 Subclause (2) empowers the Court to grant an
application, to refuse it, or, in the case of a refusal, to specify a shorter
period of disqualification.
7.104 Subclause (3) provides that the holder
of an office against whom a prescribed order has been made and who has been
refused leave to continue to hold office shall thereupon cease to hold
office.
7.105 Subclause (4) provides that an application to the Court may
only be made where the applicant has not, in relation to that prescribed order,
already applied for leave to hold office in organisations.
7.106 This clause provides for applications to be made to the Federal
Court for leave to continue in office by office holders against whom a
prescribed order has been made.
7.107 This clause sets out the matters which the Federal Court must have
regard to for the purposes of exercising its power to grant leave to stand for
office or continue to hold office.
7.108 The Federal Court may make such orders as it considers appropriate
to give effect to declarations made under clause 224 (subclause (1)).
Subclauses (2) and (3) deal with the right of persons and organisations to be
heard in proceedings under this Part.
8.1 Chapter 8 is concerned with the administration of organisations.
Part 2 deals with the record keeping obligations of organisations, and Part 3
sets out the financial accounting, auditing and reporting requirements placed on
organisations.
8.2 Subject to some changes, the provisions in this
Chapter reflect Divisions 10 and 11 of Part IX of the WR Act. Relevant offences
in Part XI of the WR Act have been integrated into this
Chapter.
8.3 Consistent with the general approach of the Act, which
reflects Commonwealth criminal law policy, obligations that currently attract
criminal sanction under the WR Act are converted to civil penalty provisions.
Provisions dealing with the production of documents have been drafted in
accordance with Commonwealth criminal law policy in relation to protection
against self-incrimination.
8.4 This clause provides an outline of the content of each Part of
Chapter 8.
8.5 This clause sets out the record-keeping obligations of
organisations.
8.6 Subclause (1) requires an organisation to keep a
register of members, a list of positions of office in the organisation and its
branches, a list containing certain information about the holders of those
offices, and other records as prescribed by the
Regulations.
8.7 Subclause (2) requires an organisation to update its
register of members as changes in membership occur. This subclause is a civil
penalty provision.
8.8 This clause would impose an obligation on an organisation to maintain
copies of its membership register.
8.9 Subclause (1) would require an
organisation to retain a copy of its membership register as it stood at 31
December each year for a period of 7 years.
8.10 Subclause (2) further
provides that the Regulations can require an organisation to keep a copy of a
register, or part of a register, as it stood on a prescribed day, for seven
years following the prescribed day.
8.11 Both subclauses are civil
penalty provisions.
8.12 This clause would make it an offence to intentionally interfere with
the register of members kept under clause 230, or with the copies kept under
clause 231.
8.13 This clause sets out the obligations upon organisations to lodge
certain records with the Industrial Registry each year.
8.14 This clause requires organisations and their branches to keep their
records at their offices unless a Registrar grants permission for them to be
kept elsewhere.
8.15 This clause would permit a person authorised by a Registrar to
inspect and make copies of, or extracts from, the register of members (subclause
(1)), and requires an organisation to make its register of members available for
that purpose (subclause (2)). The register may be made available in a form
agreed with the authorised person (subclause (3)) - this would allow an
organisation to provide its membership register in electronic format if this is
agreed with the authorised person.
8.16 Subclause (2) is a civil penalty
provision.
8.17 If satisfied that a member has been refused access to the register
of members or that there are other grounds for giving a direction, subclause (1)
allows a Registrar to direct an organisation to deliver a certified copy of its
register of members to the Registrar. The copy must be certified as a correct
statement of the organisation’s membership as at not more than 28 days
before the day the register is required to be delivered to the Registrar.
Subclause (1) is a civil penalty provision.
8.18 Where a member has made
application, subclause (2) provides that the Registrar may direct an
organisation to deliver to the Registrar a copy of the copy of records that an
organisation is required to keep under clause 231. In making the direction, the
Registrar must be satisfied that the member has been refused access to the copy
of the register, and that the member has reasonable grounds for seeking access
to the copy. Subclause (2) is a civil penalty provision.
8.19 Subclause
(3) requires the direction of a Registrar to be in writing and to specify a time
period for delivery of the relevant copy of not less that 14 days after the
direction was given.
8.20 Subclause (4) provides that the copy of a
record delivered in accordance with a direction under either subclause (1) or
(2) may be in hard copy form, or if the Registrar agrees, in electronic
form.
8.21 If he or she considers this appropriate in the circumstances,
subclause (5) allows the Registrar to provide a copy of the document to a member
of the organisation.
8.22 This clause sets out lodgement requirements in relation to details
of loans, grants and donations over $1,000.
8.23 An organisation must
lodge a statement detailing each loan, grant or donation over $1,000 in the
Industrial Registry within 90 days after the end of each financial year
(subclause (1)). The statement must be signed by an officer of the organisation
(subclause (2)) and cannot contain false or misleading statements (subclause
(3)). Subclauses (1) and (3) are civil penalty provisions.
8.24 Subclauses (5) and (6) set out the relevant particulars that must
be included in the statement.
8.25 This Part is divided into 7 Divisions and prescribes the financial
accounting and auditing requirements with which organisations are to
comply.
8.26 This clause provides an outline of each of the divisions comprising
Part 3.
8.27 This clause provides that the financial accounting obligations of
the Act only apply from the first full financial year after a new organisation
is registered.
8.28 This clause provides a transitional arrangement to cover the
situation where an organisation changes its rules in relation to the period
constituting its financial year. As a once-off arrangement to cover the
changeover, the period between the end of what was previously the
organisation’s financial year and the start of the period that is now its
financial year is to be treated as a separate financial year.
8.29 This clause allows the Industrial Registrar to grant exemptions from
the general requirement (set out in subclause 253(1)) that Australian Accounting
Standards apply to organisations.
8.30 Subclause (1) provides that the
Industrial Registrar may determine that an Australian Accounting Standard does
not apply in relation to an organisation or to a class of organisations.
Subclause (2) requires the Registrar to have regard to the cost of compliance
with the Standard and the information needs of members in making a determination
about the application of an Australian Accounting Standard.
8.31 This Division provides for reporting units. Each reporting unit
within an organisation is required to comply with the accounting, auditing and
reporting obligations of this Part.
8.32 Under the WR Act an organisation
may meet its financial accounting, auditing and reporting obligations in one of
two ways – on a ‘whole of organisation’ basis, or a
‘branch by branch’ basis. The Act would introduce the more flexible
concept of ‘reporting unit’ to allow each organisation to meet its
obligations in the manner most appropriate to its internal structure.
8.33 This clause defines the concept of a ‘reporting unit’ to
which the requirements of Part 3 apply.
8.34 Subclause (2) provides that
an organisation not divided into branches constitutes a single reporting unit.
8.35 Subclause (3) provides that where an organisation is divided into
branches, each branch is a reporting unit unless the Registrar issues a
certificate under clause 245 determining the organisation to be divided into
reporting units on an alternative basis.
8.36 Subclause (4) provides that
the alternative bases for division into reporting units of an organisation that
has a branch structure are: the organisation as a whole, or a combination of two
or more branches.
8.37 Subclause (5) is a deeming provision that makes
clear that any part of an organisation that is not otherwise included in a
branch is taken to be a separate branch for the purposes of the Part.
8.38 This clause defines ‘designated officer’. A
‘designated officer’ is an officer designated under the rules as an
officer responsible (whether alone or with others) for undertaking functions
necessary for compliance with the financial accounting, auditing and reporting
obligations of Part 3.
8.39 This clause is a deeming provision necessary as a result of the fact
that a ‘reporting unit’ only exists for the purposes of the
financial accountability framework. The clause deems certain aspects of
organisations and branches to be aspects of the ‘reporting
unit’.
8.40 As provided for in subclause 242(3), this clause enables the
Industrial Registrar to issue certificates stating that an organisation divided
into branches is divided into reporting units on an alternative basis for the
purpose of compliance with this Part. The Registrar can issue a certificate on
application by an organisation, or at the Registrar’s own
initiative.
8.41 This clause outlines the requirements to which an organisation needs
to adhere in making an application for a certificate under clause 245.
Paragraph (1)(b) contains a requirement for an organisation to include an
application to amend any rules of the organisation as may be required to give
effect to the establishment of reporting units on the alternative basis sought.
8.42 Subclause (2) sets out matters in relation to which the Registrar
must be satisfied before issuing a certificate and certifying any rules
changes.
8.43 This clause provides that a certificate issued under clause 245 can
only be issued on the Registrar’s own initiative where the Registrar is
satisfied that:
• in order to improve compliance with the
accounting, auditing and reporting requirements of the Part, it is most
appropriate for the organisation to be divided into reporting units as proposed;
and
• members of the organisation would have available to them an
adequate level of relevant financial information.
8.44 Before issuing a
certificate, the Registrar must have provided the organisation with an
opportunity to be heard, in accordance with any procedure prescribed by the
regulations.
8.45 The clause also provides for the Registrar to certify
any rules changes that are required to give effect to the reporting structure in
the certificate.
8.46 This clause provides that a certificate issued under clause 245
operates in relation to each financial year after it is issued unless revoked
under clause 249 before the start of a financial year.
8.47 This clause provides for the revocation by the Industrial Registrar
of certificates issued under clause 245.
8.48 If a certificate is revoked
the reporting structure of the organisation reverts to each branch being a
reporting unit (subclause (2)).
8.49 A certificate may be revoked by the
Industrial Registrar on application, or at the Registrar’s initiative
(subclause (3)).
8.50 As with the issuing of certificates, provision is
made for necessary rule changes to give effect to the new reporting structure
that will result from the certificate being revoked (subclauses (4) and
(7)).
8.51 Before granting an application for revocation, the Registrar
must be satisfied that the level of financial information that would be
available to members under the new arrangements would be adequate and relevant,
and that the rule changes meet the requirements of the Act (subclause
(5)).
8.52 Before revoking a certificate on his or her own motion, the
Registrar must be satisfied that, in order to enhance compliance with the
accounting, auditing and reporting requirements of the Act, it is most
appropriate that the organisation report on a branch by branch basis (subclause
(6)). Any procedure prescribed by the regulations must be complied
with.
8.53 This clause clarifies when rule changes in relation to the issuing
or revocation of a certificate take effect. It also provides that such rule
changes can vary the duties associated with an office in an
organisation.
8.54 This clause makes it clear that a reporting unit certificate is
revoked with the issuing of a subsequent certificate.
8.55 This Division sets out the accounting obligations of reporting
units.
8.56 Each reporting unit is required to keep proper financial records
with respect to its transactions and financial position so as to enable
compliance with its accounting obligations and to ensure convenient auditing
(subclause (1)).
8.57 Where an organisation consists of more than one
reporting unit, records of the units must be kept in a consistent manner (for
example, by the adoption of consistent accounting policies and a common chart of
accounts), to the extent that this is practicable (subclause
(2)).
8.58 Records may be retained on a cash or accrual basis (subclause
(3)).
8.59 Membership records may be kept on a cash basis, even if
other records are retained on an accrual basis (subclause
(4)).
8.60 Records must be retained for 7 years from the date of the
transaction to which they relate (subclause (5)).
8.61 This clause requires a reporting unit to have a general purpose
report prepared, from the records required to be kept under clause 252(1), as
soon as practicable after the end of each financial year. The report must be
prepared in accordance with Australian Accounting
Standards.
8.62 Subclause (2) specifies that the report must contain:
financial statements; notes to the financial statements which contain any notes
required by Australian Accounting Standards or information required by the
reporting guidelines to be issued under clause 255; and any other reports or
statements requires by the reporting guidelines.
8.63 Subclause (3)
provides that the financial statements and notes must give a true and fair view
of a reporting unit’s financial position and performance. This
requirement is a civil penalty provision.
8.64 This clause requires the committee of management of a reporting unit
to have an operating report prepared as soon as practicable after the end of
each financial year. This requirement is a civil penalty provision.
8.65 Subclause (2) lists the matters that must be addressed by the operating
report, including that it: contain a review of the reporting unit’s
principal activities during the year; provide details of members’ right to
resign from the reporting unit; and provide details of involvement, in certain
circumstances, of unit officers or members in trusteeships or trustee company
directorships relating to certain superannuation funds.
8.66 This clause requires the Industrial Registrar to produce and publish
in the Gazette reporting guidelines for the purposes of clauses 253
(which relates to organisations generally) and 270 (which provides for reduced
reporting requirements for organisations with an annual income of less than
$100,000).
8.67 Subclauses (2) and (3) (which relate to organisations
generally, and low income organisations respectively) set out a number of
specific items which must be addressed by the reporting guidelines. These
include the disclosure of information concerning the total amount an
organisation pays to all employers in a financial year in return for payroll
deduction of membership dues and disclosure of the total amount paid by an
organisation for legal costs and other expenses relating to litigation or other
legal matters.
8.68 Subclause (4) provides that the Registrar may include
in the guidelines other requirements regarding disclosure of information as he
or she considers appropriate.
8.69 Subclause (5) provides that no
appeal lies to the Australian Industrial Relations Commission in respect of the
reporting guidelines or their issuance.
8.70 Division 4 provides for auditors to be appointed and sets out the
powers and duties of auditors and the duties others have in relation to
auditors. The provisions of this Division largely reflect the WR Act but have
been updated having regard to current standards and Commonwealth criminal law
policy.
8.71 Each reporting unit must have a qualified auditor. This clause sets
out the necessary requirements.
8.72 This clause sets out the responsibilities of auditors and the powers
exercisable by them in meeting those responsibilities. The clause is similar to
section 276 of the WR Act, subject to some redrafting to bring the provision
into line with current standards; for example, by expressly requiring that the
form and content of an auditor’s report comply with the Australian
Auditing Standards.
8.73 This clause makes it an offence for an officer, employee or member
of an organisation to obstruct an auditor. This clause is similar to subsection
326(1) of the WR Act, but has been redrafted in accordance with Commonwealth
criminal law policy in relation the production of documents and protection
against self-incrimination.
8.74 This clause requires a reporting unit to forward to an auditor
notices and other communications relating to a meeting at which the
auditor’s report, or accounts to which the report relates, are to be
considered.
8.75 An auditor, or a person authorised by the auditor, is entitled to
attend any meeting at which the auditor’s report, or accounts to which the
report relates, are to be considered, or at which there will be business
concerning the auditor or a person authorised by the auditor.
8.76 This clause provides that auditors and certain other persons enjoy
qualified privilege in relation to defamation in certain circumstances.
8.77 This clause provides that a reporting unit must pay the reasonable
fees and expenses of an auditor.
8.78 This clause provides that an auditor is not to be removed from
office, except by resolution passed at a meeting of the body of the reporting
unit that appointed the auditor. The auditor is accorded certain procedural
rights in relation to any such meeting.
8.79 This clause provides for the manner in which an auditor is able to
resign his or her appointment. Subclause (3) requires a reporting unit to
notify its members of the reasons for the auditor’s resignation if the
auditor so requests. This requirement is a civil penalty provision.
8.80 Division 5 sets out the reporting requirements with which reporting
units must comply.
8.81 A reporting unit is required to provide to its members either a full
report (consisting of copies of the auditor’s report, the general purpose
financial report and the operating report), or a concise report. Subclause (3)
sets out the matters to be addressed in a concise report.
8.82 The report
must be provided to members within a specified period after the end of the
financial year to which it relates (subclause (5)).
8.83 A reporting
unit can only provide members with a concise report if, in accordance with its
rules, the committee of management resolves to do so (subclause (2)). Where
requested by a member, a reporting unit that has provided members with a concise
report must provide to the member, within 28 days, a copy of the full report
(subclause (4)).
8.84 The requirement to provide a report may be
satisfied in certain circumstances by publication of the report in the reporting
unit’s journal (subclauses (6) and (7)).
8.85 This clause provides for the presentation of the full report to
appropriate meetings. The emphasis of the reporting requirement is on direct
member participation. Subclause (1) is a civil penalty
provision.
8.86 In the absence of acceptable alternative arrangements
(set out in subclause 3), the report is to be provided to a meeting of members
or, where the rules of the organisation so provide, a series of meetings
(subclauses (1) and (2)).
8.87 The report may be presented to a meeting
of the reporting unit’s committee of management only where the rules of
the organisation allow not more than 5% of members to call a full meeting of
members to consider the report (subclause (3)).
8.88 This clause prohibits misleading, false or reckless statements on
the part of a reporting unit’s committee of management where, in relation
to the provision or presentation of a report, the committee comments on matters
dealt with in a full or concise report. Clause 267 is a civil penalty
provision.
8.89 A reporting unit must lodge reports in the Industrial Registry
within 14 days of their being presented to meetings. This is a civil penalty
provision.
8.90 This Division provides for reduced reporting requirements to apply
in particular cases.
8.91 This clause enables a Registrar to accept reports lodged with
registries established under State legislation where a reporting unit is
composed of the same membership as an associated State body provided that
certain prerequisites are met.
8.92 This clause enables the Registrar to issue a certificate permitting
a reporting unit that is the whole of an organisation with an annual income of
less than $100,000 to comply with the reduced reporting requirements provided in
the clause.
8.93 This clause allows a Registrar to provide a reporting unit with a
general exemption from the requirement of the Part where the unit had no
financial affairs in a financial year.
8.94 Division 7 provides for members’ access to financial records
of reporting units. The Act provides increased access for members to financial
records, in line with current standards (eg in the Corporations Act
2001).
8.95 This clause provides that a reporting unit, on application by a
member or a Registrar, must make available certain prescribed information
concerning its financial affairs. A Registrar may only apply for the
information at the request of a member and the Registrar is to furnish that
member with the information received. Subclause (6) specifies that the
prescribed information must include details regarding fees paid by the reporting
unit to an employer in return for payroll deduction of membership
dues.
8.96 With the exception of subclause (6), this clause is similar to
section 274 of the WR Act.
8.97 This clause enables a member of a reporting unit to apply for an
order allowing inspection of financial records and sets out the matters of which
the Commission must be satisfied before granting an order, including that: the
application is made in good faith and that there are reasonable grounds for
suspecting a breach of the financial accounting, auditing and reporting
provisions or regulations relating to those provisions, the reporting
guidelines, or a relevant rule of the reporting unit. The Commission’s
power to order access to the financial records of a reporting unit is confined
to those records that relate to the suspected breach.
8.98 This clause provides for a civil penalty in relation to making
applications under clause 273 that are vexatious or without reasonable cause.
The Commission is also required to dismiss such applications as soon as
possible.
8.99 This clause provides that where the Commission makes an order under
clause 273, it may make any other orders it considers appropriate. Examples of
such orders include: an order limiting the use to which information obtained may
be put, an order limiting the right of a person inspecting records to make
copies, and an order ensuring that the reporting unit need not provide names and
addresses where these are contained in financial records.
8.100 This clause ensures that information accessed during an inspection
granted under clause 273 is not improperly disclosed.
8.101 Disclosure
to a Registry official or the applicant is permitted.
8.102 This
provision is a civil penalty provision.
8.103 This clause provides that the committee of management, or the
reporting unit by resolution passed at general meeting, may allow a member to
inspect financial records.
8.104 This clause would require the Registry to be notified and provided
with any relevant information in the event that an inspection of financial
records ordered under clause 273 results in a reasonable belief that a breach
may have occurred. Where the Commission considers the belief as to a breach to
be reasonably grounded, the Commission must refer the matter to the
Registrar.
8.105 For the purposes of proceedings under Division 7 (which relates to
access to financial records), the Commission must be constituted by a
Presidential Member.
8.106 This clause would allow an officer or former officer with a right
of access, in certain circumstances, to an organisation’s books for the
purposes of legal proceedings.
9.1 Chapter 9 sets out the duties of offices and employees of
organisations in relation to the financial management of an organisation or
branch. It also sets out their general duties in relation to orders or
directions of the Federal Court or of the Commission.
9.2 This clause provides a simplified outline of the Chapter.
9.3 This clause provides a simplified outline of Part 2 of Chapter
9.
9.4 This clause limits the application of the Part to the exercise, by
officers and employees of an organisation or branch, of duties relating to the
financial management of the organisation or branch.
9.5 This clause provides a definition of the term ‘involved’,
which is relevant to the operation of the duties to be imposed by clauses 286,
287 and 288.
9.6 This clause sets out the civil obligation of officers of
organisations and their branches with respect to the duty of care and
diligence.
9.7 Subclause (1) requires powers and duties to be exercised
with the degree of care and diligence of a reasonable person, taking account of
certain matters.
9.8 This provision is a civil penalty
provision.
9.9 Subclause (2) provides that a judgment of an officer will
meet the obligation under subclause (1), and the equivalent duties at common law
and equity, in respect of the judgment if:
• the judgment is made
for a proper purpose;
• the officer does not have a personal
interest in the subject matter of the judgment;
• the officer
appropriately informs himself or herself about the subject matter of the
judgment;
• he or she rationally believed that the judgment was in
the best interests of the organisation.
9.10 Such a belief is to be
considered rational unless it is a belief that no reasonable person in the
officer’s position would hold.
9.11 This clause imposes a civil good faith obligation upon officers of
organisations and their branches, requiring that powers or duties be discharged
in good faith in the best interests of the organisation, and for a proper
purpose.
9.12 Subclause (2) extends contravention of the duty to a
person involved in such a contravention. What constitutes
‘involvement’ is set out in clause 284.
9.13 This clause imposes a civil obligation on officers and employees of
organisations and their branches in relation to use of position.
9.14 An
officer or employee is not to use his or her position to obtain advantage for
himself or herself or someone else, or cause detriment to the organisation or
another person.
9.15 Subclause (2) extends contravention of the duty to a
person involved in such a contravention.
9.16 This clause imposes a civil obligation on officers and employees of
organisations and their branches in relation to use of
information.
9.17 A person who obtained information through being, or
having been, an officer or employee, is prohibited from improperly using that
information to obtain advantage for himself or herself or someone else, or cause
detriment to the organisation or another person.
9.18 Subclause (2)
extends contravention of the duty to a person involved in such a contravention.
9.18 Subclause (1) clarifies that ratification of a breach of the civil
duties set out in clauses 285 to 288 by the members of an organisation does not
prevent or affect the instigation or determination of proceedings for
contravention of those sections.
9.19 Subclause (2) provides that the
Court may take ratification of breaches of the civil duties set out in clauses
285 to 288 into account, provided the court has had regard to certain matters,
in deciding what order to make in respect of a proceeding for contravention of
any of those clauses.
9.20 This clause provides that an action of an officer or employee does
not contravene civil obligations in clauses 286, 287 or 288, if the action was
required by another provision of the Act or the WR Act.
9.21 This clause preserves the operation of other laws concerning the
duties of a person because of his or her employment or office in relation to an
organisation, and ensures that action may still be taken in respect of a breach
of, or liability under, any other such laws. The judgment rule in subclause
285(2) is an exception to this general proposition. The application of clause
291 is excluded to the extent to which it operates on the duty of due care and
diligence at common law and equity.
9.22 As long as certain matters are satisfied, this clause ensures that
where the reasonableness of an officer’s reliance on advice provided by
others is in question in proceedings regarding a breach of duty under this Part
or equivalent duties at common law and equity, that reliance is taken to be
reasonable unless proved otherwise.
9.23 Subclause (1) provides that where a power is delegated to another
person, the officer making the delegation is liable in respect of the exercise
of that power as if he or she exercised the power personally.
9.24 Subclause (2) provides an exception to subclause (1) where the
officer making the delegation had reasonable grounds to believe, in good faith,
after having made proper inquiry, that the power was delegated to a reliable and
competent person, and that the officer making the delegation had reasonable
grounds to believe that the power would be exercised in compliance with the
duties imposed on officers by the Act or the WR Act.
9.25 This clause provides a simplified outline of the Part.
9.26 This clause provides a definition of the term
‘involved’, which is relevant to the operation of the duties to be
established within the Part.
Clause 296 – Application to
officers and employees of branches
9.27 This clause ensures that any
references within the Part to officers or employees of organisations apply both
to officers and employees of organisations and to officers and employees of
branches of organisations.
9.28 This clause sets out the civil obligation of officers and employees
of an organisation with respect to orders or directions of the Federal Court or
the Commission that apply to that organisation.
9.29 Subclause (2)
establishes a duty on officers and employees of the relevant organisation and
its branches not to act in a manner that would result in their organisation
contravening any such order or direction. To contravene this section the officer
or employee must know, or be reckless as to whether, that act would result in
the organisation contravening the order.
9.30 Subclause (3) extends
contravention of the duty to any officer or employee involved in a contravention
of an order made against their organisation or involved in a contravention of
subclause (2). What constitutes ‘involvement’ is set out in clause
295.
9.31 Both subclause (2) and subclause (3) are civil penalty
provisions.
Clause 298 – Prohibition order or direction applying
to organisation – civil obligation
9.32 This clause sets out
the civil obligation of officers and employees of an organisation with respect
to orders or directions of the Federal Court or the Commission that apply to
that organisation and which prohibit the organisation from doing something.
9.33 Subclause (2) establishes a duty on officers and employees of the
relevant organisation and its branches not to act in a manner that would result
in a contravention of the order or direction if the order not to do something
had been expressed so as to apply to the officer or employee rather than to the
organisation. To contravene this section the officer or employee must know, or
be reckless as to whether, that act would result in a contravention.
9.34 Subclause (3) extends contravention of the duty to any officer or
employee involved in a contravention of subclause (2). What constitutes
‘involvement’ is set out in clause 295.
9.35 Both subclause
(2) and subclause (3) are civil penalty provisions.
9.36 This clause sets out the civil obligation of an officer of an
organisation with respect to orders or directions of the Federal Court or the
Commission that apply to that officer.
9.37 Subclause (2) requires an
officer not to knowingly or recklessly contravene any order or direction that
applies to him or her.
9.38 Subclause (3) extends contravention of the
duty to any officer or employee of the organisation involved in a contravention
of subclause (2). What constitutes ‘involvement’ is set out in
clause 295.
9.39 Both subclause (2) and subclause (3) are civil penalty
provisions.
9.40 This clause sets out the civil obligation of officers and employees
of an organisation with respect to orders or directions of the Federal Court or
the Commission that apply to an officer of that organisation and which prohibit
the officer from doing something.
9.41 Subclause (2) establishes a duty
on employees and officers of the relevant organisations and its branches, apart
from the officer to whom the order or direction in question applies, not to act
in a manner that (if the order not to do something had been expressed so as to
apply to the employee or other officer) would result in a contravention of the
order or direction. To contravene this section the employee or officer must
know, or be reckless as to whether, that act would result in a contravention.
9.42 Subclause (3) extends contravention of the duty to any officer or
employee involved in the contravention of subclause (2). What constitutes
‘involvement’ is set out in clause 295.
9.43 Both subclause
(2) and subclause (3) are civil penalty provisions.
Clause 301 –
Order or direction applying to employee – civil obligation
9.44 This clause sets out the civil obligation of an employee of an
organisation with respect to orders or directions of the Federal Court or the
Commission that apply to the employee.
9.45 Subclause (2) provides that
the employee to whom the order or direction applies must not knowingly or
recklessly contravene the order or direction.
9.46 Subclause (3) extends
contravention of the duty to any officer or employee of the organisation who is
involved in a contravention of subclause (2). What constitutes
‘involvement’ is set out in clause 295.
Clause 302 –
Prohibition order or direction applying to employee – civil obligation
9.47 This clause sets out the civil obligation of officers and
employees of an organisation with respect to orders or directions of the Federal
Court or the Commission that apply to another employee of that organisation and
which prohibit the employee from doing something.
9.48 Subclause (2)
establishes a duty on officers and all other employees of the relevant
organisation and its branches (i.e. apart from the employee to whom the order or
direction in question applies) not to act in a manner that, if the order not to
do something had been expressed so as to apply to those other employees or
officers, would result in a contravention of the order or direction. To
contravene this section the employee or officer must know, or be reckless as to
whether, that act would result in a contravention.
9.49 Subclause (3)
extends contravention of the duty to any officer or employee involved in the
contravention of subclause (2). What constitutes ‘involvement’ is
set out in clause 295.
9.50 Both subclause (2) and subclause (3) are
civil penalty provisions.
Clause 303 – Order or direction
applying to member of organisation– civil obligation
9.51 This
clause sets out the civil obligation of officers and employees of an
organisation with respect to orders or directions of the Federal Court or the
Commission that apply to a member of that organisation.
9.52 Subclause
(2) establishes a duty on officers and employees of the organisation and its
branches not to act in a manner that (if the order had been expressed so as to
apply to those officers or employees) would result in a contravention of the
order or direction. To contravene this section an employee or officer must know,
or be reckless as to whether, that act would result in a contravention.
9.53 Subclause (3) extends contravention of the duty to any officer or
employee involved in the contravention of an order or direction that applies to
a member or involved in the contravention of subclause (2). What constitutes
‘involvement’ is set out in clause 295.
9.54 Both subclause
(2) and subclause (3) are civil penalty provisions.
10.1 Chapter 10 provides for civil penalties and allows for the making of
orders by the Federal Court in respect of conduct that contravenes a civil
penalty provision. This Chapter also sets out the relationship with criminal
proceedings arising out of the same conduct.
10.2 This clause provides an outline of the contents of the
chapter.
10.3 This clause lists the civil penalty provisions contained in the Act,
and provides that application may be made to the Federal Court for orders in
relation to contravention of a civil penalty provision.
10.4 To avoid
doubt, the clause provides that a contravention by a branch or reporting unit
within a registered organisation is a contravention by the organisation.
10.5 This clause sets out the pecuniary penalties that the Federal Court
may order where the Federal Court finds that a person or organisation has
contravened a civil penalty provision. The clause provides maximum penalties of
100 penalty units in the case of a body corporate and 20 penalty units in other
cases. By operation of section 4AA of the Crimes Act 1914, a penalty
unit is currently $110.
10.6 A penalty ordered under this clause is
payable to the Commonwealth; the Commonwealth may recover a penalty as if it
were a judgment debt.
10.7 This clause enables the Federal Court to order that a person who has
contravened a civil penalty provision relating to the duties of officers and
employees of registered organisations must compensate the organisation for
damage it has suffered as a result of the contravention.
10.8 The Court
is to take account of any profits made by the person from the contravention of
the civil penalty provision in quantifying the damage suffered by the
organisation. The clause also specifies that a compensation order may be
enforced as if it were a judgment of the Court.
10.9 This clause provides the Federal Court with broad power to make
necessary orders where there has been a contravention of a civil penalty
provision, including injunctions and interim injunctions.
10.10 Orders
under this provision may be made irrespective of whether orders have also been
made under clauses 306 or 307.
10.11 This clause preserves the operation of any other laws concerning
the duties of a person relating to his or her employment or office in a
registered organisation.
10.12 This clause sets out who may make an application for an order
relating to a contravention of a civil penalty provision.
10.13 The
Industrial Registrar or a person authorised in writing by the Industrial
Registrar may apply for an order under this Part regarding all civil penalty
provisions, other than an order in relation to a contravention of a provision
covered by paragraph 305(2)(zk).
10.14 Subclause (2) provides that the
Minister, or some other person authorised in writing by the Minister, may apply
for an order under this Part in relation to a contravention of a provision
covered by paragraph 305(2)(zk).
10.15 An organisation may apply for a
compensation order (subsection (3)).
10.16 Subclause (4) provides an
organisation may intervene in an application for a pecuniary penalty order or
order under clause 308 and is entitled to be heard on all matters other than
whether the order should be made.
10.17 To avoid double penalties, this clause prevents the Federal Court
from making an order for a pecuniary penalty against a person if the person has
already been convicted of an offence constituted by substantially the same
conduct as the contravention of a civil penalty provision.
10.18 This clause provides that where criminal proceedings are started in
respect of conduct that is substantially the same as that relating to
proceedings for a pecuniary penalty order for a contravention of a civil penalty
provision, the civil proceedings are stayed.
10.19 If the person is later
convicted of the offence, then the proceedings for an order for breach of the
civil penalty provisions are dismissed. Otherwise, the proceedings may be
resumed.
10.20 This clause ensures that if an order in respect of a contravention
of a civil penalty provision has been made, criminal proceedings relating to
substantially the conduct may still be instituted.
10.21 This clause prevents admission of evidence in criminal proceedings
where the evidence was previously given in proceedings for a pecuniary penalty
order relating to contravention of a civil penalty provision and the criminal
proceedings relate to substantially the same conduct. An exception is made for
criminal proceedings regarding false evidence given in the civil penalty
proceedings.
10.22 This clause enables the Federal Court to relieve an organisation or
person, in whole or part, from liability for contravention of a civil penalty
provision where the Court considers that the respondent acted honestly, and that
the circumstances are such that it is fair that the respondent should be
excused. An application for relief may also be made by a person or an
organisation that apprehends that proceedings may be commenced against
them.
10.23 This clause enables the Federal Court to relieve an officer of an
organisation from liability for negligence, default, breach of trust or breach
of duty in their capacity as an officer of a registered organisation.
11.1 This clause provides a simplified outline of the content of each
Part of Chapter 11.
11.2 This Part deals with the validation of certain invalidities
occurring in relation to registered organisations, and reflects Division 8 of
Part IX of the WR Act.
11.3 This clause defines ‘invalidity’ as it is used in Part
2.
11.4 This clause validates acts done in good faith by a collective body
of or an office holder in an organisation or branch.
11.5 Subclause (1)
provides that, subject to other subclauses of this clause and clause 321, these
acts by a collective body, or by persons purporting to act as such a body, in an
organisation or branch are to be valid notwithstanding any invalidity afterwards
discovered in elections for or appointments to the collective body or in the
making or altering of rules.
11.6 Subclause (2) makes similar provision
in relation to acts done in good faith by a person who holds, or purports to
hold, an office or other position in the organisation or
branch.
11.7 Subclause (3) provides that in order to come within the
clause, a person must have purported to hold the position concerned in good
faith and must have been treated by officers or members as holding the
position.
11.8 Subclause (4) provides that good faith is to be presumed
until the contrary is proved and that knowledge of facts from which an
invalidity arises is not of itself to be treated as knowledge that the
invalidity exists. Certain invalidities relating to a branch or to the
organisation are only to be treated as discovered when they can be proved to
have become known to a majority of members of the committee of management
concerned.
11.9 Subclause (5) applies the provisions of the clause to an
act whether done before or after the commencement of the
Act.
11.10 Subclauses (6) and (7) provide that the clause is not to
validate an otherwise invalid expulsion, suspension or imposition of a fine or
other penalty on a member of an organisation. Further, it does not affect the
operation of Part 3 of Chapter 7, which deals with inquiries into elections for
office.
11.11 Subject to the clause and clause 321, the clause validates acts
four years after their having been done by collective bodies (or purported
collective bodies) and holders of officers or other positions (or persons
purporting to hold them) in organisations and branches. Similar provision is
made in relation to elections, appointments and rule
alterations.
11.12 Court orders made during the four year period are not
affected, but the provision operates in respect of acts occurring before the
commencement of the legislation and before an organisation’s
registration.
11.13 This clause enables the Federal Court, on application, if satisfied
that substantial injustice would be done if clauses 319 or 320 applied in
respect of a particular act, to order that they do not apply in relation to the
act.
11.14 This clause allows an organisation, members of an organisation or
an interested person to apply to the Federal Court for a ruling on whether an
invalidity has occurred in relation to an organisation or branch.
11.15 The Court may make an order to correct the invalidity or its
effects if to do so would not cause substantial injustice to the organisation,
its members or others having dealings with the organisation.
11.16 This clause enables the Federal Court to provide for the reviving
of defunct parts of organisations and the filling of vacant offices and
positions in certain circumstances.
11.17 Subclause (1) provides that
an organisation, member or interested person may ask the Court to make a
declaration that a part of the organisation has ceased to exist or function
effectively and that the situation cannot be remedied under the rules. A similar
declaration may be made in relation to vacant offices or positions that cannot
be filled under the rules.
11.18 Subclause (2) provides that where a
declaration is made under subclause (1), the Court may, by order, approve a
scheme for action to be taken by collective body or officers in the organisation
or branch to restore part of the organisation concerned, or to fill vacant
offices or positions. Where an order is made under this clause, the Court may
give ancillary or consequential directions it considers appropriate (subclause
(3)).
11.19 Subclause (4) provides that, before approving such a scheme,
the Court must be satisfied that there will not be a substantial injustice done
to the organisation or a member.
11.20 The other provisions of the
clause are of a technical nature.
11.21 This Division provides for arrangements under which the Minister
has power to grant financial assistance in respect of costs incurred in certain
proceedings under the Act, and circumstances in which costs can be ordered in
proceedings under the Act. These provisions reflect Part XII of the WR
Act.
11.22 Subclause (1) gives the Minister power to authorise financial
assistance where it is reasonable to do so and refusal is likely to cause
hardship to the applicant.
11.23 Subclause (2) sets out the parties that
are eligible to apply for financial assistance in respect of certain proceedings
(including proceedings in relation to performance of rules, election inquiries,
disqualification from office, and certain ballot
inquiries).
11.24 Subclause (3) defines the term ‘relevant
costs’ for the purposes of the clause.
11.25 This clause complements clause 324. It enables the Federal Court
to certify that where an application of a particular kind was not successful,
the applicant acted reasonably in making the application. The purpose of this
provision is to assist the Minister in determining whether an application for
financial assistance should be granted.
11.26 This clause allows the Minister to refuse financial assistance in
relation to certain specified types of proceedings where it would be contrary to
the interests of justice to grant the application, or where the order sought in
the proceeding is substantially similar to that obtained in an other relevant
proceeding which concerned substantially similar issues of fact and/or law
(subclause (1)).
11.27 Subclause (2) provides a definition of the term
‘other relevant proceeding’ for the purposes of subclause
(1).
11.28 Subclauses (3), (4) and (5) relate to amounts and timing of
payments of amounts of the assistance.
11.29 This clause provides that financial assistance is not payable in
respect of the fees of two or more counsel appearing for an applicant, unless
other parties to the proceeding were, or are, represented by two or more
counsel.
11.30 This clause preserves the Federal Court’s powers to make
orders with respect to the costs of proceedings before the Court.
11.31 This clause provides that costs can only be ordered against a
person party to a proceeding under the Act where the person instituted the
proceeding vexatiously or without reasonable cause. This provision reflects
section 347 of the WR Act.
11.32 Part 4 gives the Industrial Registrar, or Registry officials,
certain powers to make inquiries and investigate matters under the Act. These
provisions expand on sections 280 and 280A of the WR Act.
11.33 This clause enables the Registrar, or Registry officials, to make
inquiries regarding:
• compliance with Part 3 of Chapter 8
(accounts and audit), reporting guidelines, relevant regulations and an
organisation’s rules governing the finances or financial administration of
a reporting unit; and
• as to whether a civil penalty provision has
been complied with.
11.34 This is a general inquiry power. Unlike
investigations conducted by a Registrar under clause 331, there is no power of
compulsion associated with inquiries under this clause.
11.35 This clause makes provision for investigations by a Registrar.
Subclause (5) provides that an investigation may, but need not, follow an
inquiry under clause 330.
11.36 Subclause (1) enables the Registrar,
where satisfied that there are reasonable grounds for doing so, to conduct an
investigation to determine whether there has been a contravention of Part 3 of
Chapter 8 (accounts and audit), reporting guidelines, relevant regulations and
an organisation’s rules governing the finances or financial administration
of a reporting unit.
11.37 The Registrar has similar powers in respect of
civil penalty provisions (subclause (2)).
11.38 If as a result of such
investigations, it appears there are grounds for investigating the finances or
financial administration of the reporting unit, the Registrar may investigate
further. An investigation may also be conducted in circumstances prescribed by
the Regulations (subclauses (3) and (4)).
11.39 This clause requires a Registrar - where an auditor’s report
lodged with the Registry highlights a defect, irregularity, deficiency, failure
or shortcoming that the Registrar considers sufficient to require investigation
- to investigate the matter (subclause (1)).
11.40 An investigation is
not required if the deficiency consists of the fact that the organisation has
maintained financial records for its membership subscriptions on a cash basis
(as provided in subclause 252(4)), or the matters are considered trivial and
likely to be remedied in the following financial year (subclause
(2)).
11.41 Where, as a result of matters raised in the auditor’s
report or an investigation under this clause, a Registrar considers that there
are grounds for investigating the finances or financial administration of the
reporting unit, the Registrar may make a further investigation (subclause
(3)).
11.42 This clause provides that a prescribed number of members of a
reporting unit may request that the finances and financial administration of the
reporting unit be investigated, and that a Registrar is required to conduct an
investigation.
11.43 If there is more than one such request for an
investigation in a financial year, the Registrar may decide to only conduct one
investigation.
11.44 This clause provides that, where a matter has been referred under
clause 278, the Industrial Registrar must ensure that it is investigated by a
Registrar.
11.45 This clause allows a Registrar, for the purpose of conducting an
investigation, to require designated officers, employees or auditors of an
organisation (past or present) to provide information or produce documents. The
Registrar may also require a person to attend before the Registrar to answer
questions relating to the investigation.
11.46 This clause provides that upon conclusion of an investigation,
where the Registrar conducting the investigation believes that the reporting
unit has contravened a provision of the Part, or of the regulations or reporting
guidelines, or the reporting unit’s rules regarding finances or financial
administration, the Registrar must notify the reporting unit of this (subclause
(1)).
11.47 The Registrar may also issue a notice to the reporting unit
requesting it to take specified action to remedy the contravention within a
specified time, or apply to the Federal Court for an order under the civil
penalty provisions of the Act, or refer the matter to the Director of Public
Prosecutions (subclause (2)). The note to this subclause makes clear that in
appropriate circumstances, the Registrar may also make a determination regarding
the appropriate reporting unit structure of the relevant organisation under
clause 247.
11.48 On application by the Registrar, the Court may make
orders to ensure that the reporting unit complies with a notice issued by the
Registrar requesting it to take action to remedy a contravention (subclause
(5)).
11.49 This clause provides that it is an offence for a person to refuse
or fail to provide information, produce a document or attend before the
Registrar, as required under subclause 335(2). In addition, a person must not
provide information or knowingly or recklessly make a statement that is false or
misleading.
11.50 Subclause (2) provides that the offence in relation to
subsection 335(2) is one of strict liability.
11.51 Subclause (3)
provides that it is a defence to the offence in subsection 335(2) to have a
reasonable excuse for the refusal or failure.
11.52 Under subclause (4),
a person is not excused from providing information on the ground that the
information provided might incriminate the person. However, subclause (5)
provides that any information obtained by requiring a person to give information
under subclause 335(2) is inadmissible against the person in criminal
proceedings or civil proceedings, other than proceedings relating to the offence
under paragraphs (1)(b) or (c).
11.53 The provisions in this Part of Chapter 11 reflect Divisions 2 and 3
of Part XIV of the WR Act.
11.54 Subclause (1) vests the Federal Court with jurisdiction in relation to
matters arising under the Act in relation to which:
• applications
can be made or actions brought under the Act;
• questions can be
referred to it under the Act or the WR Act;
• penalties may be sued
for or recovered under the Act; or
• prosecutions may be instituted
for offences under the Act (subclause (1)).
11.55 For the purposes of
section 44 of the Judiciary Act 1903, the Court also has jurisdiction
regarding any matter in which a writ of mandamus or prohibition or an injunction
is sought against any officer of the Commonwealth holding office under the WR
Act and exercising powers under the Act (subclause (2)).
11.56 It is
also given jurisdiction relating to matters remitted under section 44 of the
Judiciary Act 1903 (subclause (3)).
11.57 This clause sets out certain matters in respect of which the
jurisdiction of the Federal Court is exclusive of the jurisdiction of other
courts and of State industrial authorities.
11.58 This clause requires the jurisdiction of the Federal Court to be
exercised by a Full Court in relation to particular matters.
11.59 This clause provides that, at any stage of a proceeding in a matter
arising under the Act, a single judge may refer a specific question of law or
refer the matter to be heard and determined by a Full Court. Any evidence given
or arguments adduced in the proceeding before the Judge may be taken into
account by the Full Court.
11.60 This clause provides that an appeal to a Full Court does not lie
from a judgment by a single Judge in an election or ballot inquiry, except with
leave of the court.
11.61 The provisions of this Part largely reflect provisions in Part XIII
of the WR Act.
11.62 This clause permits the Minister to delegate all or any of the
Minister’s powers under the Act to the Secretary of the Department or an
SES or acting SES employee.
11.63 Under subclause (1), if it is necessary for the purposes of the Act
to establish the state of mind of a body corporate in relation to particular
conduct, it is sufficient to establish the state of mind of a specified
representative who engaged in the conduct concerned within his or her actual or
apparent authority.
11.64 Subclause (2) deems conduct engaged in on
behalf of a body corporate by certain persons (whose authority or apparent
authority permitted the conduct) to have been engaged in by the body
corporate.
11.65 Subclause (3) defines the term ‘state of
mind’.
11.66 This clause provides that, subject to any reasonable provisions in
the rules of an organisation, every financial member of an organisation is
entitled to vote in any ballot on a matter submitted to a vote of the members of
the organisation or of a branch, section or other division to which the member
belongs.
11.67 This clause permits a financial member of an organisation to
request a returning officer conducting an election for office or other position,
or a ballot on a matter, in an organisation or branch to supply information to
the member for the purpose of ascertaining whether an irregularity has occurred
in that election or ballot. The returning officer must comply with the
request.
11.68 This clause requires an organisation or branch to provide copies of
rules, amendments to rules, or the lists of offices and office holders in the
organisation or branch to a member where requested in writing. The regulations
may prescribe a number of matters in relation to such requests, including fees
that may be charged by the organisation or branch. This provision for
regulations is not reflected in the WR Act.
11.69 This clause provides that the certification by a Registrar that a
person was a member or officer of an organisation or branch at a specified time
is evidence of that fact.
11.70 This clause provides that a list of officers of an organisation or
branch lodged in the Industrial Registry under the Act or a copy of such a list
certified by a Registrar is evidence that the persons named in the list were
officers at the time of lodgement.
11.71 This clause provides that it is an offence to knowingly make false
representation as to authority to collect money for an organisation, or to
collect money knowingly without authority. The maximum penalty for these
offences is 20 penalty units.
11.72 This clause provides that a court is unable to direct that a person
is to serve a prison sentence in default of payment of a fine or penalty imposed
under the Act.
11.73 This clause is designed to facilitate, where relevant, proceedings
before State and Territory courts by making their jurisdiction operate
throughout a relevant State or Territory.
11.74 Under this clause employers in public sector employment are
required to act for the purposes of the Act through an employing authority.
This clause sets out certain implications of this requirement. The term
‘employing authority’ is defined in clause 6 where provision is made
for persons or bodies to be prescribed as employing authorities.
11.75 The treasurer of an unincorporated club is deemed by this clause to
be the employer of any employee of the club and proceedings under the Act that
may be taken by or against such a club may be taken by or against the
treasurer.
11.76 This is a procedural provision permitting inspection of documents
in proceedings before the Commission.
11.77 This clause sets down procedures to be followed in proceedings
before the Federal Court and the Commission where a person objects to evidence
being tendered on the basis that it is a trade secret, relates to a trade
secret, or relates to the financial position of a witness or party. The Court
and Commission are given powers to restrict access to such evidence.
11.78 This clause enables a court imposing a monetary penalty under the
Act to order either all or part of the penalty to be paid into consolidated
revenue or to a particular organisation or person.
11.79 This clause relates to the enforcement of penalties imposed under
the Act and orders as to costs and expenses.
11.80 This clause provides regulation making powers for the purposes of
the Act, including power to make regulations imposing civil penalties (not
exceeding 25 penalty units for a body corporate and 5 penalty units in other
cases) for breaches of the regulations. Regulations can also be made requiring
certain employers to provide information about money received from an
organisation for the provision of facilities for payroll deductions of
membership dues, and requiring employers to inform employees who use payroll
deduction facilities that ceasing to use the facilities does not constitute
resignation from an organisation (subclauses (3) and (4)).
11.81 This clause provides for the application of Schedule 2 to the Act
to organisations divided into branches whose operations are confined to a
prescribed State. Schedule 2 contains certain provisions that reflect those in
Schedule 4 to the WR Act.
SCHEDULE 1 – PERSONS, OTHER THAN EMPLOYEES, WHO MAY BE MEMBERS
OF ASSOCIATIONS APPLYING FOR REGISTRATION
12.1 Schedule 1
reflects provisions in Schedule 3 to the WR Act and operates in conjunction with
clause 18 of the Act to permit an association of employees applying for
registration, and consequently an organisation of employees, to have as members
persons deemed to be employees by specified State legislation.
SCHEDULE 2 – COMPLEMENTARY REGISTRATION
SYSTEMS
13.1 Schedule 2 reflects provisions in Schedule 4 to the
WR Act. The provisions are designed to overcome difficulties arising from the
multiple incorporation of associations by consequence of their registration
under the federal and some State workplace relations systems. These problems
were highlighted in the judgment of the Commonwealth Industrial Court in
Moore v Doyle (1969) 15 FLR 59.
13.2 Part 1 contains
definitions.
13.3 Part 2 provides for a separate Branch fund. Provision
is also made in Part 2 for certain matters to be considered in relation to
changes to eligibility rules of organisations for which there is an associated
body registered under State law. Branch autonomy is required to be provided for
under the rules. Participation in State workplace relations systems is
authorised, including by the registration of a branch of a federal organisation,
provided it is not thereby incorporated.
13.4 Part 3 permits amalgamation
between an organisation and an associated State body to facilitate the operation
of the complementary system by establishing single bodies to represent members
in both federal and State systems.
13.5 Part 4 provides that the
Commission’s jurisdiction under the Schedule is to be exercised by a
Presidential Member.