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Workplace Relations (Registered Organisations) Bill 2001

Part 2 Objects of Act and general provisions

   

4   Simplified outline of Part

This Part sets out the objects of the Act and contains other provisions that are relevant to the Act as a whole.

It includes definitions of terms that are used throughout the Act. However, not all definitions are in this Part. Definitions of terms that are used only in a particular area of the Act, or only in one section of the Act, are generally defined in that area or section.

5   Objects of Act

                   The principal objects of this Act are to:

                     (a)  facilitate the registration of a diverse range of organisations of employers and of employees that are representative of their members and are able to operate effectively in the workplace relations system; and

                     (b)  encourage the efficient management of organisations and high standards of accountability of organisations to their members; and

                     (c)  provide for the democratic functioning and control of organisations.

Note:          The Workplace Relations Act contains many provisions that affect the operation of this Act. For example, provisions of the Workplace Relations Act deal with the powers and functions of the Commission and of Registrars. Decisions made under this Act may be subject to procedures and rules (for example about appeals) that are set out in the Workplace Relations Act.

6   Definitions

                   In this Act, unless the contrary intention appears:

AEC means the Australian Electoral Commission.

Note:          Section 13 is also relevant to this definition.

approved , in relation to the conduct of an election or a ballot, means approved by the AEC by notice published in the Gazette .

approved auditor has the meaning given by the regulations.

auditor , in relation to a reporting unit, means:

                     (a)  the person who is the holder of the position of auditor of the reporting unit under section 245; or

                     (b)  where a firm is the holder of the position—each person who is, from time to time, a member of the firm and is an approved auditor.

Australian Accounting Standards means the accounting standards:

                     (a)  issued by the Australian Accounting Standards Board; or

                     (b)  issued by CPA Australia and by The Institute of Chartered Accountants in Australia and adopted by the Australian Accounting Standards Board;

as in force, or applicable, from time to time, as modified by regulations made for the purpose of this definition.

Australian Auditing Standards means the auditing and assurance standards issued by CPA Australia and The Institute of Chartered Accountants in Australia as in force, or applicable, from time to time.

AWA means an Australian workplace agreement under Part VID of the Workplace Relations Act.

award means an award or order that has been reduced to writing under subsection 143(1) of the Workplace Relations Act, but does not include an order made by the Commission in a proceeding under Subdivision B of Division 3 of Part VIA of that Act.

breach includes non-observance.

certified agreement means an agreement certified under Division 4 of Part VIB of the Workplace Relations Act.

civil penalty provision has the meaning given by subsection 284(2).

collective body means:

                     (a)  in relation to an organisation—the committee of management or a conference, council, committee, panel or other body of or within the organisation; and

                     (b)  in relation to a branch of an organisation—the committee of management or a conference, council, committee, panel or other body of or within the branch.

collegiate electoral system , in relation to an election for an office in an organisation, means a method of election comprising a first stage, at which persons are elected to a number of offices by a direct voting system, and a subsequent stage or subsequent stages at which persons are elected by and from a body of persons consisting only of:

                     (a)  persons elected at the last preceding stage; or

                     (b)  persons elected at the last preceding stage and other persons (being in number not more than 15% of the number of persons comprising the body) holding offices in the organisation (including the office to which the election relates), not including any person holding such an office merely because of having filled a casual vacancy in the office within the last 12 months, or the last quarter, of the term of the office.

Commission means the Australian Industrial Relations Commission established under section 8 of the Workplace Relations Act.

committee of management :

                     (a)  in relation to an organisation, association or branch of an organisation or association, means the group or body of persons (however described) that manages the affairs of the organisation, association or branch; and

                     (b)  in relation to a reporting unit, means the group or body of persons (however described) that, under the rules of the reporting unit, is responsible for undertaking the functions necessary to enable the reporting unit to comply with Part 3 of Chapter 8.

Commonwealth authority means:

                     (a)  a body corporate established for a public purpose by or under a law of the Commonwealth or the Australian Capital Territory; or

                     (b)  a body corporate:

                              (i)  incorporated under a law of the Commonwealth or a State or Territory; and

                             (ii)  in which the Commonwealth has a controlling interest.

conduct includes being (whether directly or indirectly) a party to, or concerned in, the conduct.

constitutional corporation means:

                     (a)  a foreign corporation within the meaning of paragraph 51(xx) of the Constitution; or

                     (b)  a body corporate that is, for the purposes of paragraph 51(xx) of the Constitution, a financial corporation formed within the limits of the Commonwealth; or

                     (c)  a body corporate that is, for the purposes of paragraph 51(xx) of the Constitution, a trading corporation formed within the limits of the Commonwealth; or

                     (d)  a body corporate that is incorporated in a Territory; or

                     (e)  a Commonwealth authority.

declaration envelope means an envelope on which a voter is required to make a declaration containing the prescribed information.

demarcation dispute includes:

                     (a)  a dispute arising between 2 or more organisations, or within an organisation, as to the rights, status or functions of members of the organisations or organisation in relation to the employment of those members; or

                     (b)  a dispute arising between employers and employees, or between members of different organisations, as to the demarcation of functions of employees or classes of employees; or

                     (c)  a dispute about the representation under this Act or the Workplace Relations Act of the industrial interests of employees by an organisation of employees.

Deputy Industrial Registrar means a Deputy Industrial Registrar appointed under section 75 of the Workplace Relations Act.

direct voting system , in relation to an election for an office in an organisation, means a method of election at which:

                     (a)  all financial members; or

                     (b)  all financial members included in the branch, section, class or other division of the members of the organisation that is appropriate having regard to the nature of the office;

are, subject to reasonable provisions in relation to enrolment, eligible to vote.

Electoral Commissioner has the same meaning as in the Commonwealth Electoral Act 1918 .

electoral official means an Australian Electoral Officer or a member of the staff of the AEC.

eligibility rules , in relation to an organisation or association, means the rules of the organisation or association that relate to the conditions of eligibility for membership or the description of the industry or enterprise (if any) in connection with which the organisation is, or the association is proposed to be, registered.

employee includes any person whose usual occupation is that of employee, but does not include a person who is undertaking a vocational placement within the meaning of section 4 of the Workplace Relations Act.

employer includes:

                     (a)  a person who is usually an employer; and

                     (b)  an unincorporated club.

employing authority , in relation to a class of employees, means the person or body, or each of the persons or bodies, prescribed as the employing authority in relation to the class of employees.

Employment Advocate means the Employment Advocate referred to in Part IVA of the Workplace Relations Act.

enterprise means:

                     (a)  a business that is carried on by a single employer; or

                     (b)  an operationally distinct part of such a business; or

                     (c)  2 or more operationally distinct parts of the same business carried on by the same employer.

enterprise association means an association referred to in paragraph 16(1)(c).

enterprise organisation means an enterprise association that is registered as an organisation under this Act.

excluded auditor , in relation to a reporting unit, means:

                     (a)  an officer or employee of the reporting unit or the organisation of which the reporting unit is a part; or

                     (b)  a partner, employer or employee of an officer or employee of the reporting unit or the organisation of which the reporting unit is a part; or

                     (c)  a liquidator in respect of property of the reporting unit or the organisation of which the reporting unit is a part; or

                     (d)  a person who owes more than $5,000 to the reporting unit or the organisation of which the reporting unit is a part.

For the purposes of this definition, employee has the same meaning as in Part 3 of Chapter 8.

exempt public sector superannuation scheme has the same meaning as in the Superannuation Industry (Supervision) Act 1993 .

Federal Court means the Federal Court of Australia.

financial records includes the following to the extent that they relate to finances or financial administration:

                     (a)  a register;

                     (b)  any other record of information;

                     (c)  financial reports or financial records, however compiled, recorded or stored;

                     (d)  a document.

financial year , in relation to an organisation, means:

                     (a)  the period of 12 months commencing on 1 July in any year; or

                     (b)  if the rules of the organisation provide for another period of 12 months as the financial year of the organisation—the other period of 12 months.

Note:          Section 229 provides for a different financial year in special circumstances.

Full Bench means a Full Bench of the Commission.

general purpose financial report means the report prepared in accordance with section 242.

independent contractor is confined to a natural person.

industrial action has the meaning given by section 7.

industrial dispute has the meaning given by section 8.

Industrial Registrar means the Industrial Registrar appointed under section 67 of the Workplace Relations Act.

Industrial Registry means the Australian Industrial Registry established under section 62 of the Workplace Relations Act.

irregularity , in relation to an election or ballot, includes:

                     (a)  a breach of the rules of an organisation or branch of an organisation; and

                     (b)  an act or omission by means of which:

                              (i)  the full and free recording of votes by all persons entitled to record votes and by no other persons; or

                             (ii)  a correct ascertainment or declaration of the results of the voting;

                            is, or is attempted to be, prevented or hindered; and

                     (c)  a contravention of subsection 188(1).

office has the meaning given by section 9.

officer , in relation to an organisation, or a branch of an organisation, means a person who holds an office in the organisation or branch (including such a person when performing duties as a designated officer under Part 3 of Chapter 8).

old IR agreement means an agreement certified or approved under any of the following provisions of the Workplace Relations Act:

                     (a)  section 115, as in force immediately before the commencement of the Industrial Relations Amendment Act 1992 ; or

                     (b)  Division 3A of Part VI, as in force immediately before the commencement of Schedule 2 to the Industrial Relations Reform Act 1993 ; or

                     (c)  Part VIB, as in force immediately before the commencement of item 1 of Schedule 9 to the Workplace Relations and Other Legislation Amendment Act 1996 .

one-tier collegiate electoral system means a collegiate electoral system comprising only one stage after the first stage.

operating report means the report prepared under section 243.

organisation means an organisation registered under this Act.

Note:          Organisations registered under the Workplace Relations Act immediately before this Act commenced are taken to be registered under this Act (see the Workplace Relations (Registered Organisations) (Consequential Provisions) Act 2001 ).

postal ballot means a ballot for the purposes of which:

                     (a)  a ballot paper and a declaration envelope are sent by prepaid post to each person entitled to vote; and

                     (b)  facilities are provided for the return of the completed ballot paper by post by the voter without expense to the voter.

prescribed includes prescribed by Rules of the Commission made under section 48 of the Workplace Relations Act.

President means the President of the Commission.

Presidential Member means the President, a Vice President, a Senior Deputy President or a Deputy President, of the Commission.

public sector employment has the same meaning as in the Workplace Relations Act.

Registrar means the Industrial Registrar or a Deputy Industrial Registrar.

registry means the Principal Registry or another registry established under section 64 of the Workplace Relations Act.

Registry official means:

                     (a)  a Registrar; or

                     (b)  a member of the staff of the Industrial Registry.

reporting guidelines mean the guidelines issued under section 244.

reporting unit has the meaning given by section 231.

State industrial authority means:

                     (a)  a board or court of conciliation or arbitration, or tribunal, body or persons, having authority under a State Act to exercise any power of conciliation or arbitration in relation to industrial disputes within the limits of the State; or

                     (b)  a special board constituted under a State Act relating to factories; or

                     (c)  any other State board, court, tribunal, body or official prescribed for the purposes of this definition.

superannuation entity has the same meaning as in the Superannuation Industry (Supervision) Act 1993 .

this Act includes the regulations.

Workplace Relations Act means the Workplace Relations Act 1996 and regulations made under that Act.

7   Meaning of industrial action

             (1)  In this Act, industrial action means:

                     (a)  the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, the result of which is a restriction or limitation on, or a delay in, the performance of the work, where:

                              (i)  the terms and conditions of the work are prescribed, wholly or partly, by an award or an order of the Commission, by a certified agreement, old IR agreement or AWA, by an award, determination or order made by another tribunal under a law of the Commonwealth or otherwise by or under a law of the Commonwealth; or

                             (ii)  the work is performed, or the practice is adopted, in connection with an industrial dispute; or

                     (b)  a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, in accordance with the terms and conditions prescribed by an award or an order of the Commission, by a certified agreement, or old IR agreement or AWA, by an award, determination or order made by another tribunal under a law of the Commonwealth or otherwise by or under a law of the Commonwealth; or

                     (c)  a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, that is adopted in connection with an industrial dispute; or

                     (d)  a failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work, if:

                              (i)  the persons are members of an organisation and the failure or refusal is in accordance with a decision made, or direction given, by an organisation, the committee of management of the organisation, or an officer or a group of members of the organisation acting in that capacity; or

                             (ii)  the failure or refusal is in connection with an industrial dispute; or

                            (iii)  the persons are employed by the Commonwealth or a constitutional corporation; or

                            (iv)  the persons are employed in a Territory;

but does not include:

                     (e)  action by employees that is authorised or agreed to by the employer of the employees; or

                      (f)  action by an employer that is authorised or agreed to by or on behalf of employees of the employer; or

                     (g)  action by an employee if:

                              (i)  the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and

                             (ii)  the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

             (2)  For the purposes of this Act:

                     (a)  conduct is capable of constituting industrial action even if the conduct relates to part only of the duties that persons are required to perform in the course of their employment; and

                     (b)  industrial action includes a course of conduct consisting of a series of industrial actions.

8   Meaning of industrial dispute

             (1)  In this Act, industrial dispute means:

                     (a)  an industrial dispute (including a threatened, impending or probable industrial dispute):

                              (i)  extending beyond the limits of any one State; and

                             (ii)  that is about matters pertaining to the relationship between employers and employees; or

                     (b)  a situation that is likely to give rise to an industrial dispute of the kind referred to in paragraph (a);

and includes:

                     (c)  a demarcation dispute (whether or not, in the case of a demarcation dispute involving an organisation or the members of an organisation in that capacity, the dispute extends beyond the limits of any one State); and

                     (d)  a part of an industrial dispute; and

                     (e)  an industrial dispute so far as it relates to a matter in dispute; and

                      (f)  a question arising in relation to an industrial dispute.

Additional operation of Act—extension to industrial issues

             (2)  Without affecting its operation apart from this section, this Act also has effect as if a reference to an industrial dispute included a reference to an industrial issue.

             (3)  In this section, industrial issue has the meaning that it is given by section 5 of the Workplace Relations Act for the purposes of that section.

Additional operation of Act—extension to Victorian disputes

             (4)  Subsection (5) has effect only for so long, and in so far, as the Commonwealth Powers (Industrial Relations) Act 1996 of Victoria refers to the Parliament of the Commonwealth a matter or matters that result in the Parliament of the Commonwealth having sufficient legislative power for that subsection to have effect.

             (5)  Without affecting its operation apart from this section, this Act also has effect as if the definition of industrial dispute in subsection (1) were replaced by the following:

industrial dispute means:

                     (a)  an industrial dispute (including a threatened, impending or probable industrial dispute):

                              (i)  within the limits of Victoria; and

                             (ii)  that is about matters pertaining to the relationship between employers and employees; or

                     (b)  a situation that is likely to give rise to an industrial dispute of the kind referred to in paragraph (a);

and includes a demarcation dispute.

9   Meaning of office

             (1)  In this Act, office , in relation to an organisation or a branch of an organisation means:

                     (a)  an office of president, vice president, secretary or assistant secretary of the organisation or branch; or

                     (b)  the office of a voting member of a collective body of the organisation or branch, being a collective body that has power in relation to any of the following functions:

                              (i)  the management of the affairs of the organisation or branch;

                             (ii)  the determination of policy for the organisation or branch;

                            (iii)  the making, alteration or rescission of rules of the organisation or branch;

                            (iv)  the enforcement of rules of the organisation or branch, or the performance of functions in relation to the enforcement of such rules; or

                     (c)  an office the holder of which is, under the rules of the organisation or branch, entitled to participate directly in any of the functions referred to in subparagraphs (b)(i) and (iv), other than an office the holder of which participates only in accordance with directions given by a collective body or another person for the purpose of implementing:

                              (i)  existing policy of the organisation or branch; or

                             (ii)  decisions concerning the organisation or branch; or

                     (d)  an office the holder of which is, under the rules of the organisation or branch, entitled to participate directly in any of the functions referred to in subparagraphs (b)(ii) and (iii); or

                     (e)  the office of a person holding (whether as trustee or otherwise) property:

                              (i)  of the organisation or branch; or

                             (ii)  in which the organisation or branch has a beneficial interest.

             (2)  In this Act, a reference to an office in an association or organisation includes a reference to an office in a branch of the association or organisation.

10   Forging and uttering

Forging

             (1)  For the purposes of this Act, a person is taken to have forged a document if the person:

                     (a)  makes a document which is false, knowing it to be false; or

                     (b)  without authority, alters a genuine document in a material particular;

with intent that:

                     (c)  the false or altered document may be used, acted on, or accepted, as genuine, to the prejudice of another person; or

                     (d)  another person may, in the belief that it is genuine, be induced to do or refrain from doing an act.

             (2)  For the purposes of this Act, if a person:

                     (a)  makes a document which is false, knowing it to be false; or

                     (b)  without authority, alters a genuine document in a material particular;

with intent that a computer, a machine or other device should respond to the false or altered document as if it were genuine:

                     (c)  to the prejudice of another person; or

                     (d)  with the result that another person would be induced to do or refrain from doing an act;

the first-mentioned person is taken to have forged the document.

Uttering

             (3)  For the purposes of this Act, a person is taken to utter a forged document if the person:

                     (a)  uses or deals with it; or

                     (b)  attempts to use or deal with it; or

                     (c)  attempts to induce another person to use, deal with, act upon, or accept it.

11   Functions of the Industrial Registry

             (1)  The functions of the Industrial Registry include:

                     (a)  keeping a register of organisations; and

                     (b)  providing advice and assistance to organisations in relation to their rights and obligations under this Act.

Note:          Other functions of the Industrial Registry are set out in section 63 of the Workplace Relations Act.

             (2)  Subject to this Act, the register of organisations is to be kept in whatever form the Industrial Registrar considers appropriate.

12   President may establish Organisations Panel

             (1)  The President may establish a panel (the Organisations Panel ) of members of the Commission to exercise the powers of the Commission under this Act.

             (2)  The Organisations Panel is to consist of:

                     (a)  a Presidential Member whose duties include organising and allocating the work of the Panel; and

                     (b)  one or more other members of the Commission assigned to the Panel by the President.

             (3)  A member of the Organisations Panel may be a member of one or more panels referred to in section 37 of the Workplace Relations Act.

Note:          Section 37 of the Workplace Relations Act provides for the setting up of Commission panels for particular industries.

             (4)  The fact that a person is a member of the Organisations Panel does not affect any powers, function or duties that have been, or may be, given to the person by or under any other provision of this Act or the Workplace Relations Act.

             (5)  Even if the President establishes an Organisations Panel, he or she may direct that the powers of the Commission in relation to a particular matter arising under this Act are to be exercised by:

                     (a)  a member of the Commission who is not a member of the Panel; or

                     (b)  members of the Commission, some or all of whom are not members of the Panel.

13   Actions and opinions of AEC

             (1)  In this Act, a reference to a ballot or election being conducted, or a step in a ballot or election being taken, by the AEC is a reference to the ballot or election being conducted, or the step being taken, by:

                     (a)  an electoral official; or

                     (b)  a person authorised on behalf of the AEC to do so.

             (2)  In this Act, a reference to the opinion or other state of mind of the AEC , in relation to the exercise of a function, is a reference to the opinion or other state of mind of a person authorised to carry out the function on behalf of the AEC.

14   Operation of offence provisions

                   If a maximum penalty is specified:

                     (a)  at the foot of a section of this Act (other than a section that is divided into subsections); or

                     (b)  at the foot of a subsection of this Act;

then:

                     (c)  a person who contravenes the section or subsection is guilty of an offence punishable, on conviction, by a penalty not exceeding the specified penalty; or

                     (d)  the offence referred to in the section or subsection is punishable, on conviction, by a penalty not exceeding the specified penalty.



 

Chapter 2 Registration and cancellation of registration