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Workplace Relations (Registered Organisations) Bill 2001

Part 2 Amalgamation of organisations

Division 1 General

45   Definitions

                   In this Part:

alternative provision means a provision of the kind mentioned in subsection 51(1).

amalgamated organisation , in relation to a completed amalgamation, means the organisation of which members of the de-registered organisations have become members under paragraph 83(3)(d).

amalgamation day , in relation to a completed amalgamation, means the day fixed under subsection 83(2) in relation to the amalgamation.

asset means property of any kind, and includes:

                     (a)  any legal or equitable estate or interest (whether present or future, vested or contingent, tangible or intangible) in real or personal property of any description; and

                     (b)  any chose in action; and

                     (c)  any right, interest or claim of any kind in, or in relation to, property (whether arising under an instrument or otherwise, and whether liquidated or unliquidated, certain or contingent, accrued or accruing).

authorised person , in relation to a completed amalgamation, means the secretary of the amalgamated organisation or a person authorised, in writing, by the committee of management of the amalgamated organisation.

charge means a charge created in any way, and includes a mortgage and an agreement to give or execute a charge or mortgage (whether on demand or otherwise).

closing day , in relation to a ballot for a proposed amalgamation, means the day, from time to time, fixed under section 68 as the closing day of the ballot.

commencing day , in relation to a ballot for a proposed amalgamation, means the day, from time to time, fixed under section 68 as the commencing day of the ballot.

completed amalgamation means a proposed amalgamation that has taken effect.

debenture has the same meaning as in section 9 of the Corporations Law.

defect includes a nullity, omission, error or irregularity.

de-registered organisation , in relation to a completed amalgamation, means an organisation that has been de-registered under this Part.

de-registration , in relation to an organisation, means the cancellation of its registration.

holder , in relation to a charge, includes a person in whose favour a charge is to be given or executed (whether on demand or otherwise) under an agreement.

instrument means an instrument of any kind, and includes:

                     (a)  any contract, deed, undertaking or agreement; and

                     (b)  any mandate, instruction, notice, authority or order; and

                     (c)  any lease, licence, transfer, conveyance or other assurance; and

                     (d)  any guarantee, bond, power of attorney, bill of lading, negotiable instrument or order for the payment of money; and

                     (e)  any mortgage, charge, lien or security;

whether express or implied and whether made or given orally or in writing.

instrument to which this Part applies , in relation to a completed amalgamation, means an instrument:

                     (a)  to which a de-registered organisation is a party; or

                     (b)  that was given to, by, or in favour of, a de-registered organisation; or

                     (c)  in which a reference is made to a de-registered organisation; or

                     (d)  under which any money is or may become payable, or any other property is to be, or may become liable to be, transferred, conveyed or assigned, to or by a de-registered organisation.

interest :

                     (a)  in relation to a company—includes an interest in a managed investment scheme, within the meaning of the Corporations Law, made available by the company; and

                     (b)  in relation to land—means:

                              (i)  a legal or equitable estate or interest in the land; or

                             (ii)  a right, power or privilege over, or in relation to, the land.

invalidity includes a defect.

irregularity includes a breach of the rules of an organisation, but in Division 7 does not include an irregularity in relation to a ballot.

liability means a liability of any kind, and includes an obligation of any kind (whether arising under an instrument or otherwise, and whether liquidated or unliquidated, certain or contingent, accrued or accruing).

proceeding to which this Part applies , in relation to a completed amalgamation, means a proceeding to which a de-registered organisation was a party immediately before the amalgamation day.

proposed alternative amalgamation , in relation to a proposed amalgamation, means an amalgamation proposed to be made under an alternative provision.

proposed amalgamated organisation , in relation to a proposed amalgamation, means the organisation or proposed organisation of which members of the proposed de-registering organisations are proposed to become members under this Part.

proposed amalgamation means the proposed carrying out of arrangements in relation to 2 or more organisations under which:

                     (a)  an organisation is, or 2 or more organisations are, to be de-registered under this Part; and

                     (b)  members of the organisation or organisations to be de-registered are to become members of another organisation (whether existing or proposed).

proposed de-registering organisation , in relation to a proposed amalgamation, means an organisation that is to be de-registered under this Part.

proposed principal amalgamation , in relation to a proposed amalgamation, means:

                     (a)  if the scheme for the amalgamation contains an alternative provision—the amalgamation proposed to be made under the scheme otherwise than under an alternative provision; or

                     (b)  in any other case—the proposed amalgamation.

46   Procedure to be followed for proposed amalgamation etc.

             (1)  For the purpose of implementing the scheme for a proposed amalgamation, the procedure provided by this Part is to be followed.

             (2)  Where it appears to the Commission that the performance of an act, including:

                     (a)  the de-registration of an organisation; and

                     (b)  the registration of an organisation; and

                     (c)  the giving of consent to:

                              (i)  a change in the name of an organisation; or

                             (ii)  an alteration of the eligibility rules of an organisation;

is sought for the purposes of a proposed amalgamation, the Commission may perform the act only in accordance with this Part.

             (3)  If any difficulty arises, or appears likely to arise, in the application of this Act for the purpose of implementing the scheme for a proposed amalgamation, the Commission may give directions and make orders to resolve the difficulty.

             (4)  Directions and orders under subsection (3):

                     (a)  have effect subject to any order of the Federal Court; and

                     (b)  have effect despite anything in:

                              (i)  the regulations or the Rules of the Commission; or

                             (ii)  the rules of an organisation or any association proposed to be registered as an organisation.

47   Exercise of Commission’s powers under this Part

                   The powers of the Commission under this Part are exercisable only by a Presidential Member.



 

Division 2 Preliminary matters

48   Federations

Application for recognition as federation

             (1)  The existing organisations concerned in a proposed amalgamation may jointly lodge in the Industrial Registry an application for recognition as a federation.

             (2)  The application must:

                     (a)  be lodged before an application is lodged under section 54 in relation to the amalgamation; and

                     (b)  include such particulars as are prescribed.

Grant of application

             (3)  If the Commission is satisfied that the organisations intend to lodge an application under section 54 in relation to the amalgamation within the prescribed period, the Commission must grant the application for recognition as a federation.

Registration of federation

             (4)  If the application is granted, the Industrial Registrar must enter in the register kept under paragraph 11(1)(a) such details in relation to the federation as are prescribed.

Representation rights of federation

             (5)  On registration, the federation may, subject to subsection (6) and the regulations, represent its constituent members for all of the purposes of this Act and the Workplace Relations Act.

             (6)  Subsection (5) does not authorise the federation to become a party to an award or to become bound by a certified agreement or old IR agreement.

Federation may vary its composition

             (7)  After the federation is registered, it may vary its composition by:

                     (a)  including, with the approval of the Commission, another organisation within the federation if the other organisation intends to become concerned in the amalgamation; or

                     (b)  releasing, with the approval of the Commission, an organisation from the federation.

When federation ceases to exist

             (8)  The federation ceases to exist:

                     (a)  on the day on which the amalgamation takes effect; or

                     (b)  if an application under section 54 is not lodged in relation to the amalgamation within the prescribed period—on the day after the end of the period; or

                     (c)  if it appears to a Full Bench, on an application by a prescribed person, that the industrial conduct of the federation, or an organisation belonging to the federation, is preventing or hindering the attainment of an object of this Act or the Workplace Relations Act—on the day the Full Bench so determines.

Federation does not limit representation rights of organisations

             (9)  Nothing in this section limits the right of an organisation belonging to a federation to represent itself or its members.

49   Use of resources to support proposed amalgamation

             (1)  An existing organisation concerned in a proposed amalgamation may, at any time before the closing day of the ballot for the amalgamation, use its financial and other resources in support of the proposed principal amalgamation and any proposed alternative amalgamation if:

                     (a)  the committee of management of the organisation has resolved that the organisation should so use its resources; and

                     (b)  the committee of management has given reasonable notice of its resolution to the members of the organisation.

             (2)  Subsection (1) does not limit by implication any power that the existing organisation has, apart from that subsection, to use its financial and other resources in support of, or otherwise in relation to, the amalgamation.



 

Division 3 Commencement of amalgamation procedure

50   Scheme for amalgamation

             (1)  There is to be a scheme for every proposed amalgamation.

             (2)  The scheme must contain the following matters:

                     (a)  a general statement of the nature of the amalgamation, identifying the existing organisations concerned and indicating:

                              (i)  if one of the existing organisations is the proposed amalgamated organisation—that fact; and

                             (ii)  if an association proposed to be registered as an organisation is the proposed amalgamated organisation—that fact and the name of the association; and

                            (iii)  the proposed de-registering organisations;

                     (b)  if it is proposed to change the name of an existing organisation—particulars of the proposed change;

                     (c)  if it is proposed to alter the eligibility rules of an existing organisation—particulars of the proposed alterations;

                     (d)  if it is proposed to alter any other rules of an existing organisation—particulars of the proposed alterations;

                     (e)  if an association is proposed to be registered as an organisation—the eligibility and other rules of the association;

                      (f)  such other matters as are prescribed.

             (3)  Subsection (2) does not limit by implication the matters that the scheme may contain.

51   Alternative scheme for amalgamation

             (1)  Where 3 or more existing organisations are concerned in a proposed amalgamation, the scheme for the amalgamation may contain a provision to the effect that, if:

                     (a)  the members of one or more of the organisations do not approve the amalgamation; and

                     (b)  the members of 2 or more of the organisations (in this subsection called the approving organisations ) approve, in the alternative, the amalgamation so far as it involves:

                              (i)  the other of the approving organisations; or

                             (ii)  2 or more of the other approving organisations; and

                     (c)  where one of the existing organisations is the proposed amalgamated organisation—that organisation is one of the approving organisations;

there is to be an amalgamation involving the approving organisations.

             (2)  If the scheme for a proposed amalgamation contains an alternative provision, the scheme must also contain particulars of:

                     (a)  the differences between the proposed principal amalgamation and each proposed alternative amalgamation; and

                     (b)  the differences between the rules of any association proposed to be registered as an organisation, and any proposed alterations of the rules of the existing organisations, under the proposed principal amalgamation and each proposed alternative amalgamation.

52   Approval by committee of management

             (1)  The scheme for a proposed amalgamation, and each alteration of the scheme, must be approved, by resolution, by the committee of management of each existing organisation concerned in the amalgamation.

             (2)  Despite anything in the rules of an existing organisation, approval, by resolution, by the committee of management of the scheme, or an alteration of the scheme, is taken to be sufficient compliance with the rules, and any proposed alteration of the rules contained in the scheme, or the scheme as altered, is taken to have been properly made under the rules.

53   Community of interest declaration

Existing organisations may apply for declaration

             (1)  The existing organisations concerned in a proposed amalgamation may jointly lodge in the Industrial Registry an application for a declaration under this section in relation to the amalgamation.

             (2)  The application must be lodged:

                     (a)  before an application has been lodged under section 54 in relation to the amalgamation; or

                     (b)  with the application that is lodged under section 54 in relation to the amalgamation.

             (3)  If the application is lodged before an application has been lodged under section 54 in relation to the amalgamation, the Commission:

                     (a)  must immediately fix a time and place for hearing submissions in relation to the making of the declaration; and

                     (b)  must ensure that all organisations are promptly notified of the time and place of the hearing; and

                     (c)  may inform any other person who is likely to be interested of the time and place of the hearing.

Making of declaration

             (4)  If, at the conclusion of the hearing arranged under subsection (3) or section 63 in relation to the proposed amalgamation, the Commission is satisfied that there is a community of interest between the existing organisations in relation to their industrial interests, the Commission must declare that it is so satisfied.

Pre-conditions to making of declaration

             (5)  The Commission must be satisfied, for the purposes of subsection (4), that there is a community of interest between organisations of employees in relation to their industrial interests if the Commission is satisfied that a substantial number of members of one of the organisations are:

                     (a)  eligible to become members of the other organisation or each of the other organisations; or

                     (b)  engaged in the same work or in aspects of the same or similar work as members of the other organisation or each of the other organisations; or

                     (c)  bound by the same awards as members of the other organisation or each of the other organisations; or

                     (d)  employed in the same or similar work by employers engaged in the same industry as members of the other organisation or each of the other organisations; or

                     (e)  engaged in work, or in industries, in relation to which there is a community of interest with members of the other organisation or each of the other organisations.

             (6)  The Commission must be satisfied, for the purposes of subsection (4), that there is a community of interest between organisations of employers in relation to their industrial interests if the Commission is satisfied that a substantial number of members of one of the organisations are:

                     (a)  eligible to become members of the other organisation or each of the other organisations; or

                     (b)  engaged in the same industry or in aspects of the same industry or similar industries as members of the other organisation or each of the other organisations; or

                     (c)  bound by the same awards as members of the other organisation or each of the other organisations; or

                     (d)  engaged in industries in relation to which there is a community of interest with members of the other organisation or each of the other organisations.

             (7)  Subsections (5) and (6) do not limit by implication the circumstances in which the Commission may be satisfied, for the purposes of subsection (4), that there is a community of interest between organisations in relation to their industrial interests.

Circumstances in which declaration ceases to be in force

             (8)  If:

                     (a)  an application for a declaration under this section in relation to a proposed amalgamation is lodged before an application has been lodged under section 54 in relation to the amalgamation; and

                     (b)  a declaration is made under this section in relation to the amalgamation; and

                     (c)  an application is not lodged under section 54 in relation to the amalgamation within 6 months after the declaration is made;

the declaration ceases to be in force.

             (9)  The Commission may revoke a declaration under this section if the Commission is satisfied that there is no longer a community of interest between the organisations concerned in relation to their industrial interests.

           (10)  However, before the Commission revokes the declaration, it must:

                     (a)  give reasonable notice of its intention to revoke to each of the organisations that applied for the declaration; and

                     (b)  give each of those organisations an opportunity to be heard.

54   Application for approval for submission of amalgamation to ballot

             (1)  The existing organisations concerned in a proposed amalgamation, and any association proposed to be registered as an organisation under the amalgamation, must jointly lodge in the Industrial Registry an application for approval for the submission of the amalgamation to ballot.

             (2)  The application must be accompanied by:

                     (a)  a copy of the scheme for the amalgamation; and

                     (b)  a written outline of the scheme.

             (3)  Subject to section 72, the outline must, in no more than 3,000 words, provide sufficient information on the scheme to enable members of the existing organisations to make informed decisions in relation to the scheme.

55   Holding office after amalgamation

             (1)  The rules of:

                     (a)  an association proposed to be registered as an organisation that is the proposed amalgamated organisation under a proposed amalgamation; or

                     (b)  an existing organisation that is the proposed amalgamated organisation under a proposed amalgamation;

may, despite section 141, make provision in relation to:

                     (c)  the holding of office in the proposed amalgamated organisation by persons holding office in any of the proposed de-registering organisations immediately before the amalgamation takes effect; and

                     (d)  in a case to which paragraph (b) applies—the continuation of the holding of office by persons holding office in the proposed amalgamated organisation immediately before the amalgamation takes effect;

but the rules may not permit an office to be held under paragraph (c) or (d) for longer than:

                     (e)  the period that equals the unexpired part of the term of the office held by the person immediately before the day on which the amalgamation takes effect; or

                      (f)  the period that ends 2 years after that day;

whichever ends last, without an ordinary election being held in relation to the office.

             (2)  Where:

                     (a)  a person holds an office in an organisation, being an office held under rules made under subsection (1); and

                     (b)  that organisation is involved in a proposed amalgamation;

the rules of the proposed amalgamated organisation must not permit the person to hold an office in the proposed amalgamated organisation after the amalgamation takes effect, without an ordinary election being held in relation to the office, for longer than the period that equals the unexpired part of the term of the office mentioned in paragraph (a) immediately before the day on which the amalgamation takes effect.

             (3)  The rules of an organisation that is the proposed amalgamated organisation under a proposed amalgamation must, subject to this section, make reasonable provision for the purpose of synchronising elections for offices in the organisation held under paragraph (1)(c) with elections for other offices in the organisation.

             (4)  Section 143 does not apply to an office held under rules made under subsection (1).

             (5)  Section 144 applies to an office held under rules made under paragraph (1)(c).

             (6)  In this section:

ordinary election means an election held under rules that comply with section 141.

56   Application for exemption from ballot

             (1)  The proposed amalgamated organisation under a proposed amalgamation may lodge in the Industrial Registry an application for exemption from the requirement that a ballot of its members be held in relation to the amalgamation.

             (2)  The application must be lodged with the application that is lodged under section 54 in relation to the amalgamation.

57   Application for ballot not conducted under section 75

             (1)  An existing organisation concerned in a proposed amalgamation may lodge in the Industrial Registry an application for approval of a proposal for the submission of the amalgamation to a ballot of its members that is not conducted under section 75.

             (2)  The application must be lodged with the application that is lodged under section 54 in relation to the amalgamation.

58   Lodging “yes” case

             (1)  Subject to section 70, an existing organisation concerned in a proposed amalgamation may lodge a written statement of not more than 2,000 words in support of the proposed principal amalgamation and each proposed alternative amalgamation.

             (2)  The statement must be lodged with the application that is lodged under section 54 in relation to the amalgamation.



 

Division 4 Role of AEC

59   Ballots to be conducted by AEC

                   All ballots under this Part are to be conducted by the AEC.

60   Notification of AEC

             (1)  Where an application is lodged under section 54 in relation to a proposed amalgamation, the Industrial Registrar must immediately notify the AEC of the application.

             (2)  On being notified of the application, the AEC must immediately take such action as it considers necessary or desirable to enable it to conduct as quickly as possible any ballots that may be required in relation to the amalgamation.

61   Providing information etc. to electoral officials

             (1)  An electoral official who is authorised, in writing, by the AEC for the purposes of a proposed amalgamation may, where it is reasonably necessary for the purposes of any ballot that may be required or is required in relation to the amalgamation, by written notice, require an officer or employee of the organisation concerned or a branch of the organisation concerned:

                     (a)  to give to the electoral official, within the period (being a period of not less than 7 days after the notice is given), and in the manner, specified in the notice, any information within the knowledge or in the possession of the person; and

                     (b)  to produce or make available to the electoral official, at a reasonable time (being a time not less than 7 days after the notice is given) and place specified in the notice, any documents:

                              (i)  in the custody or under the control of the person; or

                             (ii)  to which the person has access.

             (2)  An officer or employee of an organisation or branch of an organisation must comply with a requirement made under subsection (1).

Maximum penalty:    30 penalty units.

             (3)  A person is not excused from giving information or producing or making available a document under this section on the ground that the information or the production or making available of the document might tend to incriminate the person or expose the person to a penalty.

             (4)  However:

                     (a)  giving the information or producing or making available the document; or

                     (b)  any information, document or thing obtained as a direct or indirect consequence of giving the information or producing or making available the document;

is not admissible in evidence against the person in criminal proceedings or proceedings that may expose the person to a penalty, other than proceedings under, or arising out of, subsection 62(3).

             (5)  If any information or document specified in a notice under subsection (1) is kept in electronic form, the electoral official may require it to be made available in that form.

62   Declaration by secretary etc. of organisation

             (1)  If a requirement is made under subsection 61(1) in relation to the register, or part of the register, kept by an organisation under section 219, the secretary or other prescribed officer of the organisation must make a declaration, in accordance with subsection (2), that the register has been maintained as required by subsection 219(2).

Note:          This subsection is a civil penalty provision (see section 284).

             (2)  The declaration must be:

                     (a)  signed by the person making it; and

                     (b)  given to the returning officer, and lodged in the Industrial Registry, as soon as practicable but no later than the day before the first day of voting in the relevant election.

             (3)  A person must not, in a declaration for the purposes of subsection (1), make a statement if the person knows, or is reckless as to whether, the statement is false or misleading.

Note:          This subsection is a civil penalty provision (see section 284).



 

Division 5 Procedure for approval of amalgamation

63   Fixing hearing in relation to amalgamation etc.

                   Where an application is lodged under section 54 in relation to a proposed amalgamation, the Commission:

                     (a)  must immediately fix a time and place for hearing submissions in relation to:

                              (i)  the granting of an approval for the submission of the amalgamation to ballot; and

                             (ii)  if an application for a declaration under section 53 was lodged with the application—the making of a declaration under section 53 in relation to the amalgamation; and

                            (iii)  if an application was lodged under section 56 for exemption from the requirement that a ballot be held in relation to the amalgamation—the granting of the exemption; and

                            (iv)  if an application was lodged under section 57 for approval of a proposal for the submission of the amalgamation to a ballot that is not conducted under section 75—the granting of the approval; and

                     (b)  must ensure that all organisations are promptly notified of the time and place of the hearing; and

                     (c)  may inform any other person who is likely to be interested of the time and place of the hearing.

64   Submissions at amalgamation hearings

             (1)  Submissions at a hearing arranged under subsection 53(3) or section 63 may only be made under this section.

             (2)  Submissions may be made by the applicants.

             (3)  Submissions may be made by another person only with the leave of the Commission and may be made by the person only in relation to a prescribed matter.

65   Approval for submission to ballot of amalgamation not involving extension of eligibility rules etc.

Approval must be given if certain conditions satisfied

             (1)  If, at the conclusion of the hearing arranged under section 63 in relation to a proposed amalgamation, the Commission is satisfied that:

                     (a)  the amalgamation does not involve the registration of an association as an organisation; and

                     (b)  a person who is not eligible for membership of an existing organisation concerned in the amalgamation would not be eligible for membership of the proposed amalgamated organisation immediately after the amalgamation takes effect; and

                     (c)  any proposed alteration of the name of an existing organisation concerned in the amalgamation will not result in the organisation having a name that is the same as the name of another organisation or is so similar to the name of another organisation as to be likely to cause confusion; and

                     (d)  any proposed alterations of the rules of an existing organisation comply with, and are not contrary to, this Act, the Workplace Relations Act, awards, certified agreements and old IR agreements, and are not contrary to law; and

                     (e)  any proposed de-registration of an existing organisation complies with this Act and is not otherwise contrary to law;

the Commission must approve the submission of the amalgamation to ballot.

Approval generally refused if conditions not satisfied

             (2)  If the Commission is not satisfied, the Commission must, subject to subsections (3) and (7), refuse to approve, under this section, the submission of the amalgamation to ballot.

Approval may be given if conditions will be satisfied later

             (3)  If, apart from this subsection, the Commission would be required to refuse to approve the submission of the amalgamation to ballot, the Commission may:

                     (a)  permit the applicants to alter the scheme for the amalgamation, including any proposed alterations of the rules of the existing organisations concerned in the amalgamation; or

                     (b)  accept an undertaking by the applicants to alter the scheme for the amalgamation, including any proposed alterations of the rules of the existing organisations concerned in the amalgamation;

and, if the Commission is satisfied that the matters mentioned in subsection (1) will be met, the Commission must approve the submission of the amalgamation to ballot.

Permission to alter amalgamation scheme

             (4)  A permission under paragraph (3)(a):

                     (a)  may, despite anything in the rules of an existing organisation concerned in the proposed amalgamation, authorise the organisation to alter the scheme (including any proposed alterations of the rules of the organisation) by resolution of its committee of management; and

                     (b)  may make provision in relation to the procedure that, despite anything in those rules, may be followed, or is to be followed, by the committee of management in that regard; and

                     (c)  may be given subject to conditions.

Powers of Commission if conditions or undertakings breached

             (5)  If:

                     (a)  the Commission:

                              (i)  gives a permission under paragraph (3)(a) subject to conditions; or

                             (ii)  accepts an undertaking under paragraph (3)(b); and

                     (b)  the conditions are breached or the undertaking is not fulfilled within the period allowed by the Commission;

the Commission may:

                     (c)  amend the scheme for the amalgamation, including any proposed alterations of the rules of the existing organisations concerned in the proposed amalgamation; or

                     (d)  give directions and orders:

                              (i)  in relation to the conduct of the ballot for the amalgamation; or

                             (ii)  otherwise in relation to the procedure to be followed in relation to the amalgamation.

             (6)  Subsection (5) does not limit by implication the powers that the Commission has apart from that subsection.

Powers of Commission to adjourn proceeding

             (7)  If, apart from this subsection, the Commission would be required to refuse to approve the submission of the amalgamation to ballot, the Commission may adjourn the proceeding.

             (8)  Subsection (7) does not limit by implication the power of the Commission to adjourn the proceeding at any stage.

66   Objections in relation to amalgamation involving extension of eligibility rules etc.

             (1)  Objection to a matter involved in a proposed amalgamation may only be made to the Commission under this section.

             (2)  Objection may be made to the Commission in relation to the amalgamation only if the Commission has refused to approve, under section 65, the submission of the amalgamation to ballot.

             (3)  Objection may be made by a prescribed person on a prescribed ground.

             (4)  The Commission is to hear, as prescribed, all objections duly made to the amalgamation.

67   Approval for submission to ballot of amalgamation involving extension of eligibility rules etc.

Approval must be given if certain conditions satisfied

             (1)  If, after the prescribed time allowed for making objections under section 66 in relation to a proposed amalgamation and after hearing any objections duly made to the amalgamation, the Commission:

                     (a)  finds that no duly made objection is justified; and

                     (b)  is satisfied that, so far as the amalgamation involves:

                              (i)  the registration of an association; or

                             (ii)  a change in the name of an organisation; or

                            (iii)  an alteration of the rules of an organisation; or

                            (iv)  the de-registration of an organisation under this Part;

                            it complies with, and is not contrary to, this Act, the Workplace Relations Act, awards, certified agreements and old IR agreements and is not otherwise contrary to law;

the Commission must approve the submission of the amalgamation to ballot.

Approval generally refused if conditions not satisfied

             (2)  If the Commission is not satisfied, the Commission must, subject to subsections (3) and (8), refuse to approve, under this section, the submission of the amalgamation to ballot.

Approval may be given if conditions will be satisfied later

             (3)  If, apart from this subsection, the Commission would be required to refuse to approve the submission of the amalgamation to ballot, the Commission may:

                     (a)  permit the applicants to alter the scheme for the amalgamation, including:

                              (i)  the rules of any association proposed to be registered as an organisation in relation to the amalgamation; or

                             (ii)  any proposed alterations of the rules of the existing organisations concerned in the amalgamation; or

                     (b)  accept an undertaking by the applicants to alter the scheme for the amalgamation, including:

                              (i)  the rules of any association proposed to be registered as an organisation in relation to the amalgamation; or

                             (ii)  any proposed alterations of the rules of the existing organisations concerned in the amalgamation;

and, if the Commission is satisfied that the matters mentioned in subsection (1) will be met, the Commission must approve the submission of the amalgamation to ballot.

Permission to alter amalgamation scheme

             (4)  A permission under subparagraph (3)(a)(i):

                     (a)  may, despite anything in the rules of any association proposed to be registered as an organisation in relation to the proposed amalgamation, authorise the existing organisations concerned in the amalgamation to alter the scheme so far as it affects that association (including any of its rules) by resolution of their committees of management; and

                     (b)  may make provision in relation to the procedure that, despite anything in the rules of the existing organisations or the rules of the association, may be followed, or is to be followed, by the committees of management in that regard; and

                     (c)  may be given subject to conditions.

             (5)  A permission under subparagraph (3)(a)(ii):

                     (a)  may, despite anything in the rules of an existing organisation concerned in the proposed amalgamation, authorise the organisation to alter the scheme (including any proposed alterations of the rules of the organisation, but not including the scheme so far as it affects any association proposed to be registered as an organisation in relation to the proposed amalgamation) by resolution of its committee of management; and

                     (b)  may make provision in relation to the procedure that, despite anything in those rules, may be followed, or is to be followed, by the committee of management in that regard; and

                     (c)  may be given subject to conditions.

Powers of Commission if conditions or undertakings breached

             (6)  If:

                     (a)  the Commission:

                              (i)  gives a permission under paragraph (3)(a) subject to conditions; or

                             (ii)  accepts an undertaking under paragraph (3)(b); and

                     (b)  the conditions are breached or the undertaking is not fulfilled within the period allowed by the Commission;

the Commission may:

                     (c)  amend the scheme for the amalgamation, including:

                              (i)  the rules of any association proposed to be registered as an organisation in relation to the amalgamation; or

                             (ii)  any proposed alterations of the rules of the existing organisations concerned in the amalgamation; or

                     (d)  give directions and orders:

                              (i)  in relation to the conduct of the ballot for the amalgamation; or

                             (ii)  otherwise in relation to the procedure to be followed in relation to the amalgamation.

             (7)  Subsection (6) does not limit by implication the powers that the Commission has apart from that subsection.

Powers of Commission to adjourn proceeding

             (8)  If, apart from this subsection, the Commission would be required to refuse to approve the submission of the amalgamation to ballot, the Commission may adjourn the proceeding.

             (9)  Subsection (8) does not limit by implication the power of the Commission to adjourn the proceeding at any stage.

68   Fixing commencing and closing days of ballot

             (1)  If the Commission approves, under section 65 or 67, the submission of a proposed amalgamation to ballot, the Commission must, after consulting with the Electoral Commissioner, fix a day as the commencing day of the ballot and a day as the closing day of the ballot.

             (2)  The commencing day must be a day not later than 28 days after the day on which the approval is given unless:

                     (a)  the Commission is satisfied that the AEC requires a longer period to make the arrangements necessary to enable it to conduct the ballot; or

                     (b)  the existing organisations concerned in the amalgamation request the Commission to fix a later day.

             (3)  If the scheme for the amalgamation contains a proposed alternative provision, a single day is to be fixed as the commencing day, and a single day is to be fixed as the closing day, for all ballots in relation to the proposed amalgamation.

             (4)  The Commission may, after consulting with the Electoral Commissioner, vary the commencing day or the closing day.

             (5)  Subsection (4) does not limit by implication the powers of the person conducting a ballot under this Part.

69   Roll of voters for ballot

                   The roll of voters for a ballot for a proposed amalgamation is the roll of persons who, on the day on which the Commission fixes the commencing day and closing day of the ballot or 28 days before the commencing day of the ballot (whichever is the later):

                     (a)  have the right under the rules of the existing organisation concerned to vote at such a ballot; or

                     (b)  if the rules of the existing organisation concerned do not then provide for the right to vote at such a ballot—have the right under the rules of the organisation to vote at a ballot for an election for an office in the organisation that is conducted by a direct voting system.

70   “Yes” case and “no” case for amalgamation

“Yes” statement may be altered

             (1)  If an existing organisation concerned in a proposed amalgamation lodges a statement under section 58 in relation to the amalgamation, the Commission may permit the organisation to alter the statement.

Members of organisation may lodge “no” statement

             (2)  Not later than 7 days before the day fixed under section 63 for hearing submissions in relation to the amalgamation, members of the organisation (being members whose number is at least the required minimum number) may lodge in the Industrial Registry a written statement of not more than 2,000 words in opposition to the proposed principal amalgamation and any proposed alternative amalgamation.

“No” statement may be altered

             (3)  The Commission may permit a statement lodged under subsection (2) to be altered.

“Yes” and “no” statements to be sent to voters

             (4)  Subject to subsections (5), (6) and (7), a copy of the statements mentioned in subsections (1) and (2), or, if those statements have been altered or amended, those statements as altered or amended, must accompany the ballot paper sent to the persons entitled to vote at a ballot for the amalgamation.

2 or more “no” statements must be combined

             (5)  If 2 or more statements in opposition to the amalgamation are duly lodged in the Industrial Registry under subsection (2):

                     (a)  the Commission must prepare, or cause to be prepared, in consultation, if practicable, with representatives of the persons who lodged each of the statements, a written statement of not more than 2,000 words in opposition to the amalgamation based on both or all the statements and, as far as practicable, presenting fairly the substance of the arguments against the amalgamation contained in both or all the statements; and

                     (b)  the statement prepared by the Commission must accompany the ballot paper for the amalgamation as if it had been the sole statement lodged under subsection (2).

Commission may correct factual errors in statements

             (6)  The Commission may amend a statement mentioned in subsection (1) or (2) to correct factual errors or to ensure that the statement complies with this Act.

Statements may include photos etc. if Commission approves

             (7)  A statement mentioned in subsection (1) or (2) may, if the Commission approves, include matter that is not in the form of words, including, for example, diagrams, drawings, illustrations, photographs and symbols.

             (8)  A statement prepared under subsection (5) may include matter that is not in the form of words, including, for example, diagrams, drawings, illustrations, photographs and symbols.

Certain statements not required to be sent to voters

             (9)  Subsection (4) and paragraph (5)(b) do not apply to a ballot that is not conducted under section 75.

Note:          Ballots conducted under section 75 are secret postal ballots.

Definition

           (10)  In this section:

required minimum number , in relation to an organisation, means:

                     (a)  5% of the total number of members of the organisation on the day on which the application was lodged under section 54 in relation to the proposed amalgamation concerned; or

                     (b)  1,000;

whichever is the lesser.

71   Alteration and amendment of scheme

Permission to alter amalgamation scheme

             (1)  The Commission may, at any time before the commencing day of the ballot for a proposed amalgamation, permit the existing organisations concerned in the amalgamation to alter the scheme for the amalgamation, including:

                     (a)  the rules of any association proposed to be registered as an organisation in relation to the amalgamation; or

                     (b)  any proposed alterations of the rules of the existing organisations concerned in the amalgamation.

Permission relating to rules of new organisations

             (2)  A permission under paragraph (1)(a):

                     (a)  may, despite anything in the rules of any association proposed to be registered as an organisation in relation to the proposed amalgamation, authorise the existing organisations concerned in the amalgamation to alter the scheme so far as it affects that association (including any of its rules) by resolution of their committees of management; and

                     (b)  may make provision in relation to the procedure that, despite anything in the rules of the existing organisations or the rules of the association, may be followed, or is to be followed, by the committees of management in that regard; and

                     (c)  may be given subject to conditions.

Permission relating to rules of existing organisations

             (3)  A permission under paragraph (1)(b):

                     (a)  may, despite anything in the rules of an existing organisation concerned in a proposed amalgamation, authorise the organisation to amend the scheme (including any proposed alterations of the rules of the organisation, but not including the scheme so far as it affects any association proposed to be registered as an organisation in relation to the proposed amalgamation) by resolution of its committee of management; and

                     (b)  may make provision in relation to the procedure that, despite anything in those rules, may be followed, or is to be followed, by the committee of management in that regard; and

                     (c)  may be given subject to conditions.

Powers of Commission if conditions breached

             (4)  If:

                     (a)  the Commission gives a permission under subsection (1) subject to conditions; and

                     (b)  the conditions are breached;

the Commission may:

                     (c)  amend the scheme for the amalgamation, including:

                              (i)  the rules of any association proposed to be registered as an organisation in relation to the amalgamation; or

                             (ii)  any proposed alterations of the rules of the existing organisations concerned in the amalgamation; or

                     (d)  give directions and orders:

                              (i)  in relation to the conduct of the ballot for the amalgamation; or

                             (ii)  otherwise in relation to the procedure to be followed in relation to the amalgamation.

             (5)  Subsection (4) does not limit by implication the powers that the Commission has apart from that subsection.

Outline of scheme must change if scheme changes

             (6)  If the scheme for the amalgamation is altered or amended (whether under this section or otherwise), the outline of the scheme must be altered or amended to the extent necessary to reflect the alterations or amendments.

72   Outline of scheme for amalgamation

             (1)  The outline of the scheme for a proposed amalgamation may, if the Commission approves, consist of more than 3,000 words.

             (2)  The outline may, if the Commission approves, include matter that is not in the form of words, including, for example, diagrams, drawings, illustrations, photographs and symbols.

             (3)  The Commission:

                     (a)  may, at any time before the commencing day of the ballot for the amalgamation, permit the existing organisations concerned in the amalgamation to alter the outline; and

                     (b)  may amend the outline to correct factual errors or otherwise to ensure that it complies with this Act.

73   Exemption from ballot

             (1)  If:

                     (a)  an application was lodged under section 56 for exemption from the requirement that a ballot be held in relation to a proposed amalgamation; and

                     (b)  the total number of members that could be admitted to membership of the proposed amalgamated organisation on, and because of, the amalgamation does not exceed 25% of the number of members of the applicant organisation on the day on which the application was lodged;

the Commission must, at the conclusion of the hearing arranged under section 63 in relation to the amalgamation, grant the exemption unless the Commission considers that, in the special circumstances of the case, the exemption should be refused.

             (2)  If the exemption is granted, the members of the applicant organisation are taken to have approved the proposed principal amalgamation and each proposed alternative amalgamation (if any).

74   Approval for ballot not conducted under section 75

                   If:

                     (a)  an application was lodged under section 57 for approval of a proposal for submission of a proposed amalgamation to ballot that is not conducted under section 75; and

                     (b)  the proposal provides for:

                              (i)  the ballot to be by secret ballot of the members of the organisation; and

                             (ii)  the ballot to be held at duly constituted meetings of the members; and

                            (iii)  the ballot to be conducted by the AEC; and

                            (iv)  the members to be given at least 21 days’ notice of the meetings, the matters to be considered at the meetings and their entitlement to an absent vote; and

                             (v)  the distribution or publication of:

                                        (A)  the outline of the scheme for the amalgamation; and

                                        (B)  the statements mentioned in subsections 70(1) and (2); and

                            (vi)  absent voting; and

                           (vii)  the ballot to be otherwise conducted in accordance with the regulations; and

                     (c)  the Commission is satisfied, after consulting with the Electoral Commissioner:

                              (i)  that the proposal is practicable; and

                             (ii)  that approval of the proposal is likely:

                                        (A)  to result in participation by members of the organisation that is fuller than the participation that would have been likely to have resulted if the ballot were conducted under section 75; and

                                        (B)  to give the members of the organisation an adequate opportunity to vote on the amalgamation without intimidation;

the Commission must, at the conclusion of the hearing arranged under section 63 in relation to the amalgamation, approve the proposal.

75   Secret postal ballot of members

Ballot on proposed principal amalgamation

             (1)  If the Commission approves, under section 65 or 67, the submission of a proposed amalgamation to ballot, the AEC must, in relation to each of the existing organisations concerned in the amalgamation, conduct a secret postal ballot of the members of the organisation on the question whether they approve the proposed principal amalgamation.

Ballot at same time on proposed alternative amalgamation

             (2)  If the scheme for the amalgamation contains a proposed alternative provision, the AEC must also conduct, at the same time and in the same way as the ballot under subsection (1), a ballot of the members of each of the existing organisations on the question or questions whether, if the proposed principal amalgamation does not take place, they approve the proposed alternative amalgamation or each proposed alternative amalgamation.

Same ballot paper to be used for both ballots

             (3)  If, under subsection (2), the AEC is required to conduct 2 or more ballots of the members of an organisation at the same time, the same ballot paper is to be used for both or all the ballots.

Counting of votes in alternative amalgamation ballot

             (4)  A person conducting a ballot under subsection (2) need not count the votes in the ballot if the person is satisfied that the result of the ballot will not be required to be known for the purposes of this Act.

Copy of outline to be sent to voters

             (5)  A copy of the outline of the scheme for the amalgamation as lodged under this Part, or, if the scheme has been altered or amended, a copy of the outline of the scheme as altered or amended, is to accompany the ballot paper sent to a person entitled to vote at the ballot.

Conduct of ballot

             (6)  In a ballot conducted under this section, each completed ballot paper must be returned to the AEC in the declaration envelope provided to the voter with the ballot paper.

             (7)  The declaration envelope must be in the approved form.

             (8)  Subject to this section, a ballot conducted under this section is to be conducted as prescribed.

Organisation may be exempt from requirements of this section

             (9)  This section does not apply to an existing organisation concerned in the amalgamation if:

                     (a)  the Commission has granted the organisation an exemption under section 73 from the requirement that a ballot be held in relation to the proposed amalgamation; or

                     (b)  the Commission has approved under section 74 a proposal by the organisation for the submission of the amalgamation to a ballot that is not conducted under this section.

76   Determination of approval of amalgamation by members

                   Where the question of a proposed amalgamation is submitted to a ballot of the members of an existing organisation concerned in the amalgamation, the members of the organisation approve the amalgamation if, and only if:

                     (a)  where a declaration under section 53 is in force in relation to the proposed amalgamation—more than 50% of the formal votes cast in the ballot are in favour of the amalgamation; or

                     (b)  in any other case:

                              (i)  at least 25% of the members on the roll of voters cast a vote in the ballot; and

                             (ii)  more than 50% of the formal votes cast are in favour of the amalgamation.

77   Further ballot if amalgamation not approved

             (1)  If:

                     (a)  the question of a proposed amalgamation is submitted to a ballot of the members of an existing organisation; and

                     (b)  the members of the organisation do not approve the amalgamation;

the existing organisations concerned in the amalgamation may jointly lodge in the Industrial Registry a further application under section 54 for approval for the submission of the amalgamation to ballot.

             (2)  If the application is lodged within 12 months after the result of the ballot is declared, the Commission may order:

                     (a)  that any step in the procedure provided by this Part be dispensed with in relation to the proposed amalgamation; or

                     (b)  that a fresh ballot be conducted in place of an earlier ballot in the amalgamation;

and the Commission may give such directions and make such further orders as the Commission considers necessary or desirable.

             (3)  Subsection (2) does not by implication require a further application under section 54 to be lodged within the 12 month period mentioned in that subsection.

78   Post-ballot report by AEC

             (1)  After the completion of a ballot under this Part, the AEC must give a report on the conduct of the ballot to:

                     (a)  the Federal Court; and

                     (b)  the Industrial Registrar; and

                     (c)  each applicant under section 54.

             (2)  The report must include details of the prescribed matters.

             (3)  If the AEC is of the opinion that the register of members, or the part of the register, made available to the AEC for the purposes of the ballot contained, at the time of the ballot:

                     (a)  an unduly large proportion of members’ addresses that were not current; or

                     (b)  an unduly large proportion of members’ addresses that were workplace addresses;

this fact must be included in the report.

             (4)  Subsection (3) applies only in relation to postal ballots.

79   Inquiries into irregularities

             (1)  Not later than 30 days after the result of a ballot under this Part is declared, application may be made to the Federal Court, as prescribed, for an inquiry by the Court into alleged irregularities in relation to the ballot.

             (2)  If the Court finds that there has been an irregularity that may affect, or may have affected, the result of the ballot, the Court may:

                     (a)  if the ballot has not been completed—order that a step in relation to the ballot be taken again; or

                     (b)  in any other case—order that a fresh ballot be conducted in place of the ballot in which the irregularity happened;

and may make such further orders as it considers necessary or desirable.

             (3)  The regulations may make provision with respect to the procedure for inquiries by the Court into alleged irregularities in relation to ballots under this Part, and for matters relating to, or arising out of, inquiries.

80   Approval of amalgamation

             (1)  If the members of each of the existing organisations concerned in a proposed amalgamation approve the proposed principal amalgamation, the proposed principal amalgamation is approved for the purposes of this Part.

             (2)  If:

                     (a)  the scheme for a proposed amalgamation contains an alternative provision; and

                     (b)  the members of one or more of the existing organisations concerned in the amalgamation do not approve the proposed principal amalgamation; and

                     (c)  the members of 2 or more of the organisations (in paragraph (d) called the approving organisations ) approve a proposed alternative amalgamation; and

                     (d)  where one of the existing organisations is the proposed amalgamated organisation—that organisation is one of the approving organisations;

the proposed alternative amalgamation is approved for the purposes of this Part.

81   Expenses of ballot

                   The expenses of a ballot under this Part are to be borne by the Commonwealth.

82   Offences in relation to ballot

Interference with ballot papers

             (1)  A person must not, without lawful authority or excuse, in relation to a ballot:

                     (a)  impersonate another person to secure a ballot paper to which the impersonator is not entitled or impersonate another person for the purpose of voting; or

                     (b)  destroy, deface, alter, take or otherwise interfere with a ballot paper or envelope; or

                     (c)  put or deliver a ballot paper or other paper:

                              (i)  into a ballot box or other ballot receptacle;

                             (ii)  into the post; or

                            (iii)  to a person receiving ballot papers for the purposes of the ballot; or

                     (d)  record a vote that the person is not entitled to record; or

                     (e)  record more than one vote; or

                      (f)  forge a ballot paper or envelope, or utter a ballot paper or envelope that the person knows to be forged; or

                     (g)  provide a ballot paper; or

                     (h)  obtain or have possession of a ballot paper; or

                      (i)  destroy, take, open or otherwise interfere with a ballot box or other ballot receptacle.

Maximum penalty:    30 penalty units.

Hindering the ballot, threats and bribes etc.

             (2)  A person must not, without lawful authority or excuse, in relation to a ballot:

                     (a)  hinder or obstruct the taking of the ballot; or

                     (b)  use any form of intimidation or inducement to prevent from voting, or to influence the vote of, a person entitled to vote at the ballot; or

                     (c)  threaten, offer or suggest, or use, cause, inflict or procure, any violence, injury, punishment, damage, loss or disadvantage with the intention of influencing or affecting:

                              (i)  any vote or omission to vote; or

                             (ii)  any support of, or opposition to, voting in a particular manner; or

                            (iii)  any promise of any vote, omission, support or opposition; or

                     (d)  offer or promise any property or benefit of any kind with the intention of influencing or affecting anything referred to in subparagraph (c)(i), (ii) or (iii); or

                     (e)  ask for or obtain, or offer or agree to ask for or obtain, any property or benefit of any kind (whether for that person or another person), on the understanding that anything referred to in subparagraph (c)(i), (ii) or (iii) will be influenced or affected in any way; or

                      (f)  counsel or advise a person entitled to vote to refrain from voting.

Maximum penalty:    30 penalty units.

Secrecy of vote

             (3)  A person (in this subsection called the relevant person ) must not, without lawful authority or excuse, in relation to a ballot:

                     (a)  request, require or induce another person to show a ballot paper to the relevant person, or permit the relevant person to see a ballot paper, in such a manner that the relevant person can see the vote, while the ballot paper is being marked or after it has been marked; or

                     (b)  if the relevant person is a person performing duties for the purposes of the ballot, show to another person, or permit another person to have access to, a ballot paper used in the ballot, otherwise than in the performance of the duties.

Maximum penalty:    30 penalty units.



 

Division 6 Amalgamation taking effect

83   Action to be taken after ballot

             (1)  The scheme of a proposed amalgamation that is approved for the purposes of this Part takes effect in accordance with this section.

             (2)  If the Commission is satisfied that:

                     (a)  the period, or the latest of the periods, within which application may be made to the Federal Court under section 79 in relation to the amalgamation has ended; and

                     (b)  any application to the Federal Court under section 79 has been disposed of, and the result of any fresh ballot ordered by the Court has been declared; and

                     (c)  there are no proceedings (other than civil proceedings) pending against any of the existing organisations concerned in the amalgamation in relation to:

                              (i)  contraventions of this Act, the Workplace Relations Act or other Commonwealth laws; or

                             (ii)  breaches of:

                                        (A)  awards or certified agreements or old IR agreements; or

                                        (B)  orders made under this Act, the Workplace Relations Act or other Commonwealth laws; and

                     (d)  any obligation that an existing organisation has under a law of the Commonwealth that is not fulfilled by the time the amalgamation takes effect will be regarded by the proposed amalgamated organisation as an obligation it is bound to fulfil under the law concerned;

the Commission must, after consultation with the existing organisations, by notice published as prescribed, fix a day (in this Division called the amalgamation day ) as the day on which the amalgamation is to take effect.

             (3)  On the amalgamation day:

                     (a)  if the proposed amalgamated organisation is not already registered—the Industrial Registrar must enter, in the register kept under paragraph 11(1)(a), such particulars in relation to the organisation as are prescribed, and the date of the entry; and

                     (b)  any proposed alteration of the rules of an existing organisation concerned in the amalgamation takes effect; and

                     (c)  the Commission must de-register the proposed de-registering organisations; and

                     (d)  the persons who, immediately before that day, were members of a proposed de-registering organisation become, by force of this section and without payment of entrance fee, members of the proposed amalgamated organisation.

             (4)  If:

                     (a)  the Commission has been given an undertaking, for the purposes of paragraph (2)(d), that an amalgamated organisation will fulfil an obligation; and

                     (b)  after giving the amalgamated organisation an opportunity to be heard, the Commission determines that the organisation has not complied with the undertaking;

the Commission may make any order it considers appropriate to require the organisation to comply with the undertaking.

84   Assets and liabilities of de-registered organisation become assets and liabilities of amalgamated organisation

             (1)  On the amalgamation day, all assets and liabilities of a de-registered organisation cease to be assets and liabilities of that organisation and become assets and liabilities of the amalgamated organisation.

             (2)  For all purposes and in all proceedings, an asset or liability of a de-registered organisation existing immediately before the amalgamation day is taken to have become an asset or liability of the amalgamated organisation on that day.

85   Resignation from membership

                   When the day on which the proposed amalgamation is to take effect is fixed, section 172 has effect in relation to resignation from membership of a proposed de-registering organisation as if the reference in subsection 172(2) to 2 weeks were a reference to one week or such lesser period as the Commission directs.

86   Effect of amalgamation on awards, orders and certified agreements

                   On and from the amalgamation day:

                     (a)  an award, an order of the Commission or a certified agreement or old IR agreement that was, immediately before that day, binding on a proposed de-registering organisation and its members becomes, by force of this section, binding on the proposed amalgamated organisation and its members; and

                     (b)  the award, order or agreement has effect for all purposes (including the obligations of employers and organisations of employers) as if references in the award, order or agreement to a de-registered organisation included references to the amalgamated organisation.

87   Effect of amalgamation on agreement under section 149

             (1)  Unless the scheme of a proposed amalgamation otherwise provides, an agreement in force under section 149 to which a de-registered organisation was a party continues in force on and from the amalgamation day as if references in the agreement to the de-registered organisation were references to the amalgamated organisation.

             (2)  The Industrial Registrar must enter in the register kept under paragraph 11(1)(a) particulars of the effect of the amalgamation on the agreement.

88   Instruments

             (1)  On and after the amalgamation day, an instrument to which this Part applies continues, subject to subsection (2), in full force and effect.

             (2)  The instrument has effect, in relation to acts, omissions, transactions and matters done, entered into or occurring on or after that day as if a reference in the instrument to a de-registered organisation were a reference to the amalgamated organisation.

89   Pending proceedings

                   Where, immediately before the amalgamation day, a proceeding to which this Part applies was pending in a court or before the Commission:

                     (a)  the amalgamated organisation is, on that day, substituted for each de-registered organisation as a party; and

                     (b)  the proceeding is to continue as if the amalgamated organisation were, and had always been, the de-registered organisation.

90   Division applies despite laws and agreements prohibiting transfer etc.

             (1)  This Division applies, and must be given effect to, despite anything in:

                     (a)  any other Commonwealth, State or Territory law; or

                     (b)  any contract, deed, undertaking, agreement or other instrument.

             (2)  Nothing done by this Division, and nothing done by a person because of, or for a purpose connected with or arising out of, this Division:

                     (a)  is to be regarded as:

                              (i)  placing an organisation or other person in breach of contract or confidence; or

                             (ii)  otherwise making an organisation or other person guilty of a civil wrong; or

                     (b)  is to be regarded as placing an organisation or other person in breach of:

                              (i)  any Commonwealth, State or Territory law; or

                             (ii)  any contractual provision prohibiting, restricting or regulating the assignment or transfer of any asset or liability or the disclosure of any information; or

                     (c)  is taken to release any surety, wholly or in part, from all or any of the surety’s obligations.

             (3)  Without limiting subsection (1), where, but for this section, the consent of a person would be necessary in order to give effect to this Division in a particular respect, the consent is taken to have been given.

91   Amalgamated organisation to take steps necessary to carry out amalgamation

             (1)  The amalgamated organisation must take such steps as are necessary to ensure that the amalgamation, and the operation of this Division in relation to the amalgamation, are fully effective.

             (2)  The Federal Court may, on the application of an interested person, make such orders as it considers appropriate to ensure that subsection (1) is given effect to.

92   Certificates in relation to land and interests in land

                   Where:

                     (a)  land or an interest in land becomes, under this Division, land or an interest in land of the amalgamated organisation; and

                     (b)  a certificate that:

                              (i)  is signed by an authorised person; and

                             (ii)  identifies the land or interest, whether by reference to a map or otherwise; and

                            (iii)  states that the land or interest has, under this Division, become land or an interest in land of the amalgamated organisation;

                            is lodged with the Registrar-General, Registrar of Titles or other proper officer of the State or Territory in which the land is situated;

the officer with whom the certificate is lodged may:

                     (c)  register the matter in the same way as dealings in land or interests in land of that kind are registered; and

                     (d)  deal with, and give effect to, the certificate;

as if it were a grant, conveyance, memorandum or instrument of transfer of the land (including all rights, title and interest in the land) or the interest in the land, as the case may be, to the amalgamated organisation that had been properly executed under the law of the State or Territory.

93   Certificates in relation to charges

                   Where:

                     (a)  the amalgamated organisation under an amalgamation becomes, under this Division, the holder of a charge; and

                     (b)  a certificate that:

                              (i)  is signed by an authorised person; and

                             (ii)  identifies the charge; and

                            (iii)  states that the amalgamated organisation has, under this Division, become the holder of the charge;

                            is lodged with the Australian Securities and Investment Commission;

that Commission may:

                     (c)  register the matter in the same way as assignments of charges are registered; and

                     (d)  deal with, and give effect to, the certificate;

as if it were a notice of assignment of the charge that had been properly lodged with that Commission.

94   Certificates in relation to shares etc.

                   Where:

                     (a)  the amalgamated organisation becomes, under this Division, the holder of a share, debenture or interest in a company; and

                     (b)  a certificate that:

                              (i)  is signed by an authorised person; and

                             (ii)  identifies the share, debenture or interest; and

                            (iii)  states that the amalgamated organisation has become, under this Division, the holder of the share, debenture or interest;

                            is delivered to the company;

the company must take all steps necessary to register or record the matter in the same way as transfers of shares, debentures or interests in the company are registered or recorded.

95   Certificates in relation to other assets

                   Where:

                     (a)  an asset (other than an asset to which section 92, 93 or 94 applies) becomes, under this Division, an asset of the amalgamated organisation; and

                     (b)  a certificate that:

                              (i)  is signed by an authorised person; and

                             (ii)  identifies the asset; and

                            (iii)  states that the asset has, under this Division, become an asset of the amalgamated organisation;

                            is given to the person or authority who has, under Commonwealth, State or Territory law, responsibility for keeping a register in relation to assets of that kind;

the person or authority may:

                     (c)  register the matter in the same way as transactions in relation to assets of that kind are registered; and

                     (d)  deal with, and give effect to, the certificate;

as if the certificate were a proper and appropriate instrument for transactions in relation to assets of that kind.

96   Federal Court may resolve difficulties

             (1)  Where any difficulty arises in relation to the application of this Division to a particular matter, the Federal Court may, on the application of an interested person, make such order as it considers proper to resolve the difficulty.

             (2)  An order made under subsection (1) has effect despite anything contained in this Act or in any other Commonwealth law or any State or Territory law.



 

Division 7 Validation

97   Validation of certain acts done in good faith

             (1)  Subject to this section and to section 99, an act done in good faith for the purposes of a proposed or completed amalgamation by:

                     (a)  an organisation or association concerned in the amalgamation; or

                     (b)  the committee of management of such an organisation or association; or

                     (c)  an officer of such an organisation or association;

is valid despite any invalidity that may later be discovered in or in connection with the act.

             (2)  For the purposes of this section:

                     (a)  an act is treated as done in good faith until the contrary is proved; and

                     (b)  a person who has purported to be a member of the committee of management, or an officer, is to be treated as having done so in good faith until the contrary is proved; and

                     (c)  an invalidity in the making or altering of the scheme for the amalgamation is not to be treated as discovered before the earliest time proved to be a time when the existence of the invalidity was known to a majority of members of the committee of management or to a majority of the persons purporting to act as the committee of management; and

                     (d)  knowledge of facts from which an invalidity arises is not of itself treated as knowledge that the invalidity exists.

             (3)  This section applies:

                     (a)  to an act whenever done (including an act done before the commencement of this section); and

                     (b)  to an act done to or by an association before it became an organisation.

             (4)  Nothing in this section affects:

                     (a)  the operation of an order of the Federal Court made before the commencement of this section; or

                     (b)  the operation of section 79, 91 or 96 or Part 2 of Chapter 10 (validation provisions for organisations).

98   Validation of certain acts after 4 years

             (1)  Subject to subsection (2) and section 99, after the end of 4 years from the day an act is done for the purposes of a proposed or completed amalgamation by:

                     (a)  an organisation or association concerned in the amalgamation; or

                     (b)  the committee of management of such an organisation or association; or

                     (c)  an officer of such an organisation or association;

the act is taken to have complied with this Part and the rules of the organisation or association.

             (2)  The operation of this section does not affect the validity or operation of an order, judgment, decree, declaration, direction, verdict, sentence, decision or similar judicial act of the Federal Court or any other court made before the end of that 4 years.

             (3)  This section applies:

                     (a)  to an act whenever done (including an act done before the commencement of this section); or

                     (b)  to an act done to or by an association before it became an organisation.

99   Orders affecting application of section 97 or 98

             (1)  Where, on an application for an order under this section, the Federal Court is satisfied that the application of section 97 or 98 in relation to an act would do substantial injustice, having regard to the interests of:

                     (a)  the organisation or association concerned; or

                     (b)  members or creditors of the organisation or association concerned; or

                     (c)  persons having dealings with the organisation or association concerned;

the Court must, by order, declare accordingly.

             (2)  Where a declaration is made, section 97 or 98, as the case requires, does not apply, and is taken never to have applied, in relation to the act specified in the declaration.

             (3)  The Court may make an order under subsection (1) on the application of the organisation or association concerned, a member of the organisation or association concerned or any other person having a sufficient interest in relation to the organisation or association concerned.

100   Federal Court may make orders in relation to consequences of invalidity

             (1)  An organisation or association, a member of an organisation or association or any other person having a sufficient interest in relation to an organisation or association may apply to the Federal Court for a determination of the question whether an invalidity has occurred in a proposed or completed amalgamation concerning the organisation or association.

             (2)  On an application under subsection (1), the Court may make such declaration as it considers proper.

             (3)  Where, in a proceeding under subsection (1), the Court finds that an invalidity of the kind mentioned in that subsection has occurred, the Court may make such orders as it considers appropriate:

                     (a)  to rectify the invalidity or cause it to be rectified; or

                     (b)  to negative, modify or cause to be modified the consequences in law of the invalidity; or

                     (c)  to validate any act, matter or thing that is made invalid by or because of the invalidity.

             (4)  Where an order is made under subsection (3), the Court may give such ancillary or consequential directions as it considers appropriate.

             (5)  The Court must not make an order under subsection (3) without satisfying itself that such an order would not do substantial injustice to:

                     (a)  the organisation or association concerned; or

                     (b)  any member or creditor of the organisation or association concerned; or

                     (c)  any person having dealings with the organisation or association concerned.

             (6)  This section applies:

                     (a)  to an invalidity whenever occurring (including an invalidity occurring before the commencement of this section); and

                     (b)  to an invalidity occurring in relation to an association before it became an organisation.