Save Search

Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document

 Download WordDownload Word  Download PDFDownload PDF 


Bill home page
Table Of Contents
Previous Fragment    Next Fragment
Workplace Relations (Registered Organisations) Bill 2001

Part 4 Conduct of officers and employees

Division 1 Preliminary

269   Simplified outline

This Part sets out some of the most significant duties of officers and employees of organisations and branches of organisations. Other duties are imposed by other provisions of this Act and other laws (including the general law).

270   Part only applies in relation to financial management

                   This Part only applies in relation to officers and employees of an organisation or a branch of an organisation to the extent that it relates to the exercise of powers or duties of those officers and employees related to the financial management of the organisation or branch.

271   Meaning of involved

                   A person is involved in a contravention if, and only if, the person has:

                     (a)  aided, abetted, counselled or procured the contravention; or

                     (b)  induced, whether by threats or promises or otherwise, the contravention; or

                     (c)  been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

                     (d)  conspired with others to effect the contravention.



 

Division 2 General duties

272   Care and diligence—civil obligation only

             (1)  An officer of an organisation or a branch must exercise his or her powers and discharge his or her duties with the degree of care and diligence that a reasonable person would exercise if he or she:

                     (a)  were an officer of an organisation or a branch in the organisation’s circumstances; and

                     (b)  occupied the office held by, and had the same responsibilities within the organisation or a branch as, the officer.

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

             (2)  An officer of an organisation or a branch who makes a judgment to take or not take action in respect of a matter relevant to the operations of the organisation or branch is taken to meet the requirements of subsection (1), and their equivalent duties at common law and in equity, in respect of the judgment if he or she:

                     (a)  makes the judgment in good faith for a proper purpose; and

                     (b)  does not have a material personal interest in the subject matter of the judgment; and

                     (c)  informs himself or herself about the subject matter of the judgment to the extent he or she reasonably believes to be appropriate; and

                     (d)  rationally believes that the judgment is in the best interests of the organisation.

The officer’s belief that the judgment is in the best interests of the organisation is a rational one unless the belief is one that no reasonable person in his or her position would hold.

Note:          This subsection only operates in relation to duties under this section and their equivalents at common law or in equity (including the duty of care that arises under the common law principles governing liability for negligence)—it does not operate in relation to duties under any other provision of this Act or under any other laws.

273   Good faith—civil obligations

             (1)  An officer of an organisation or a branch must exercise his or her powers and discharge his or her duties:

                     (a)  in good faith in what he or she believes to be the best interests of the organisation; and

                     (b)  for a proper purpose.

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

             (2)  A person who is involved in a contravention of subsection (1) contravenes this subsection.

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

274   Use of position—civil obligations

             (1)  An officer or employee of an organisation or a branch must not improperly use his or her position to:

                     (a)  gain an advantage for himself or herself or someone else; or

                     (b)  cause detriment to the organisation or to another person.

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

             (2)  A person who is involved in a contravention of subsection (1) contravenes this subsection.

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

275   Use of information—civil obligations

             (1)  A person who obtains information because he or she is, or has been, an officer or employee of an organisation or a branch must not improperly use the information to:

                     (a)  gain an advantage for himself or herself or someone else; or

                     (b)  cause detriment to the organisation or to another person.

Note 1:       This duty continues after the person stops being an officer or employee of the organisation or branch.

Note 2:       This subsection is a civil penalty provision (see section 284).

             (2)  A person who is involved in a contravention of subsection (1) contravenes this subsection.

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

276   Effect of ratification by members

             (1)  If the members of an organisation ratify or approve a contravention of section 272, 273, 274 or 275, the ratification or approval:

                     (a)  does not prevent the commencement of proceedings for a contravention of the section; and

                     (b)  does not have the effect that proceedings brought for a contravention of the section must be determined in favour of the defendant.

             (2)  If members of an organisation ratify or approve a contravention of section 272, 273, 274 or 275, the Federal Court may take the ratification or approval into account in deciding what order or orders to make under section 285, 286 or 287 in proceedings brought for a contravention of the section. In doing this, it must have regard to:

                     (a)  how well-informed about the conduct the members were when deciding whether to ratify or approve the contravention; and

                     (b)  whether the members who ratified or approved the contravention were acting for proper purposes.

277   Good faith, use of position and use of information—criminal offences

Good faith—officers

             (1)  An officer of an organisation or a branch commits an offence if he or she intentionally or recklessly fails to exercise his or her powers and discharge his or her duties:

                     (a)  in good faith in what he or she believes to be in the best interests of the organisation; or

                     (b)  for a proper purpose;

and he or she does so dishonestly.

Maximum penalty:    200 penalty units.

Use of position—officers and employees

             (2)  An officer or employee of an organisation or a branch commits an offence if he or she uses his or her position:

                     (a)  dishonestly with the intention of directly or indirectly gaining an advantage for himself or herself, or someone else, or causing detriment to the organisation or to another person; or

                     (b)  reckless as to whether the use may result in him or her or someone else directly or indirectly gaining an advantage, or in causing detriment to the organisation or to another person.

Maximum penalty:    200 penalty units.

Use of information—officers and employees

             (3)  A person who obtains information because he or she is, or has been, an officer or employee of an organisation or a branch commits an offence if he or she uses the information:

                     (a)  dishonestly with the intention of directly or indirectly gaining an advantage for himself or herself, or someone else, or causing detriment to the organisation or to another person; or

                     (b)  reckless as to whether the use may result in himself or herself or someone else directly or indirectly gaining an advantage, or in causing detriment to the organisation or to another person.

Maximum penalty:    200 penalty units.

             (4)  It is a defence to an offence against this section if another provision of this Act or the Workplace Relations Act required the officer or employee to do the act in question.

Note:          A defendant bears an evidential burden in relation to the matters mentioned in subsection (4).

278   Compliance with statutory duties

                   An officer or employee does not contravene section 273, 274 or 275 by doing an act that another provision of this Act or the Workplace Relations Act requires the officer or employee to do.

279   Interaction of sections 272 to 277 with other laws etc.

                   Sections 272 to 277:

                     (a)  have effect in addition to, and not in derogation of, any rule of law relating to the duty or liability of a person because of his or her office or employment in relation to an organisation or a branch; and

                     (b)  do not prevent the commencement of proceedings for a breach of duty or in respect of a liability referred to in paragraph (a).

This section does not apply to subsection 272(2) to the extent to which it operates on the duties at common law and in equity that are equivalent to the requirements of subsection 272(1).

280   Reliance on information or advice provided by others

                   If:

                     (a)  an officer relies on information, or professional or expert advice, given or prepared by:

                              (i)  an employee of the organisation or the branch whom the officer believes on reasonable grounds to be reliable and competent in relation to the matters concerned; or

                             (ii)  a professional adviser or expert in relation to matters that the officer believes on reasonable grounds to be within the person’s professional or expert competence; or

                            (iii)  another officer in relation to matters within the officer’s authority; or

                            (iv)  a collective body on which the officer did not serve in relation to matters within the collective body’s authority; and

                     (b)  the reliance was made:

                              (i)  in good faith; and

                             (ii)  after making proper inquiry if the circumstances indicated the need for inquiry; and

                     (c)  the reasonableness of the officer’s reliance on the information or advice arises in proceedings brought to determine whether an officer has performed a duty under this Part or an equivalent duty at common law or in equity;

the officer’s reliance on the information or advice is taken to be reasonable unless the contrary is proved.

281   Responsibility for actions of other person

             (1)  If the officers of an organisation or a branch delegate a power under its rules, each of those officers is responsible for the exercise of the power by the person to whom the power was delegated as if the power had been exercised by the officer.

             (2)  An officer is not responsible under subsection (1) if:

                     (a)  the officer believed on reasonable grounds at all times that the person to whom the power was delegated would exercise the power in conformity with the duties imposed on officers of the organisation or the branch by this Act or the Workplace Relations Act; and

                     (b)  the officer believed:

                              (i)  on reasonable grounds; and

                             (ii)  in good faith; and

                            (iii)  after making proper inquiry if the circumstances indicated the need for inquiry;

                            that the person to whom the power was delegated was reliable and competent in relation to the power delegated.