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Schedule 1—Disqualification from office

Schedule 1 Disqualification from office

   

Fair Work (Registered Organisations) Act 2009

1  Section 6

Insert:

designated finding has the meaning given by section 9C.

designated law has the meaning given by section 9C.

disqualified from holding office in an organisation has the meaning given by section 225.

wider criminal finding has the meaning given by section 9C.

2  After section 9B

Insert:

9C   Designated findings, designated laws and wider criminal findings

Designated findings

             (1)  A designated finding is a finding:

                     (a)  in any criminal proceedings against a person—that the person has committed an offence against a designated law; or

                     (b)  in any civil proceedings against a person—that the person has contravened, or been involved in a contravention of:

                              (i)  a civil penalty provision of this Act; or

                             (ii)  a civil remedy provision of the Fair Work Act; or

                            (iii)  a civil remedy provision of the Building and Construction Industry (Improving Productivity) Act 2016 ; or

                            (iv)  a civil penalty provision of the Fair Work (Building Industry) Act 2012 as in force at any time before its repeal; or

                             (v)  a provision of Part IV of the Competition and Consumer Act 2010 , or a provision of the Competition Code of a State or Territory, other than an offence; or

                            (vi)  a WHS civil penalty provision of the Work Health and Safety Act 2011 ; or

                           (vii)  a provision of a State or Territory OHS law (within the meaning of the Fair Work Act), other than an offence.

Designated law

             (2)  The following are designated laws :

                     (a)  this Act;

                     (b)  the Fair Work Act;

                     (c)  the Building and Construction Industry (Improving Productivity) Act 2016 ;

                     (d)  the Fair Work (Building Industry) Act 2012 as in force at any time before its repeal;

                     (e)  Part IV of the Competition and Consumer Act 2010 (and any other provision of the Act so far as it applies in relation to Part IV) and the Competition Code of each State and Territory;

                      (f)  the Work Health and Safety Act 2011 ;

                     (g)  each State or Territory OHS law (within the meaning of the Fair Work Act);

                     (h)  Part 7.8 of the Criminal Code (causing harm to, and impersonation and obstruction of, Commonwealth public officials) and any other provision of the Code so far as it applies in relation to that Part.

Wider criminal findings

             (3)  A wider criminal finding is a finding (other than a designated finding) in any criminal proceedings against a person that the person has committed an offence against any law of the Commonwealth or a State or Territory.

9D   Findings against part of an organisation

                   A finding made against a part of an organisation is taken for the purposes of this Act to have been made against the organisation.

3  Division 1 of Part 4 of Chapter 7 (heading)

Repeal the heading, substitute:

Division 1 Preliminary

4  At the end of section 210

Add:

This Part also allows applications to be made by the Commissioner, the Minister and certain other persons for a Federal Court order disqualifying a person from holding office in an organisation (see Division 3).

A person who is disqualified may commit an offence if the person is a candidate for, or holds or acts as if the person holds, office in an organisation (see Division 4).

5  At the end of Division 1 of Part 4 of Chapter 7

Add:

210A   Application of this Part to branches

             (1)  In this Part:

                     (a)  a reference to an office in, or holding an office in, an organisation includes an office in, or holding an office in, a branch of an organisation; and

                     (b)  a reference to an officer of an organisation includes an officer of a branch of an organisation.

             (2)  This section does not limit subsection 9(2).

6  After paragraph 212(a)

Insert:

                    (aa)  an offence under a law of the Commonwealth or a State or Territory, or another country, punishable on conviction by imprisonment for life or a period of 5 years or more; or

7  Subsection 215(1)

Omit “an election, or to be elected or appointed, to an office”, substitute “election to, or to hold, an office”.

8  At the end of subsection 215(1)

Add:

Note:          The person is also not eligible to be a candidate for election to, or to hold, an office in a branch of an organisation (see subsection 9(2) and section 210A).

9  At the end of Part 4 of Chapter 7

Add:

Division 3 Disqualification orders

221   Simplified outline of this Division

The Commissioner, the Minister or another person with a sufficient interest may apply to the Federal Court for an order disqualifying a person from holding office in an organisation, on the grounds set out in this Division.

222   Disqualification orders

             (1)  Any of the following may apply for an order under this section, if the applicant considers that any one or more of the grounds for disqualification set out in section 223 apply in relation to a person:

                     (a)  the Commissioner;

                     (b)  the Minister;

                     (c)  a person with a sufficient interest.

             (2)  The Federal Court may make an order disqualifying the person from holding office in an organisation, for the period the Court considers appropriate, if the Court:

                     (a)  is satisfied that a ground for disqualification set out in the application applies in relation to the person; and

                     (b)  does not consider that it would be unjust to disqualify the person, having regard to:

                              (i)  the nature of the matters constituting the ground; and

                             (ii)  the circumstances and the nature of the person’s involvement in the matters constituting the ground; and

                            (iii)  any other matters the Court considers relevant.

             (3)  If the Court makes an order under subsection (2), the person is also disqualified from holding office in a branch of an organisation.

             (4)  The Court must give the Commissioner a copy of the order.

223   Grounds for disqualification

Designated finding or contempt

             (1)  A ground for disqualification applies in relation to a person if:

                     (a)  a designated finding is made against the person; or

                     (b)  the person is found to be in contempt of court in relation to an order or injunction made under a designated law.

Wider criminal finding or contempt

             (2)  A ground for disqualification applies in relation to a person if:

                     (a)  either:

                              (i)  a wider criminal finding is made against the person; or

                             (ii)  the person is found to be in contempt of court in relation to an order or injunction made under any law of the Commonwealth or a State or Territory (other than a designated law); and

                     (b)  the person engaged in the conduct to which the finding relates in the course of (or purportedly in the course of) performing functions in relation to any organisation.

Multiple failures to prevent contraventions etc. by organisation

             (3)  A ground for disqualification applies in relation to a person if:

                     (a)  2 of any of the following findings are made against any organisation in relation to conduct engaged in while the person is an officer of the organisation:

                              (i)  a designated finding;

                             (ii)  a wider criminal finding;

                            (iii)  a finding that the organisation is in contempt of court in relation to an order or injunction made under any law of the Commonwealth or a State or Territory; and

                     (b)  the person failed to take reasonable steps to prevent the conduct.

Corporate impropriety

             (4)  A ground for disqualification applies in relation to a person if:

                     (a)  the person is found, in any criminal or civil proceedings against the person, to have committed an offence against, or contravened, a provision of Division 1 of Part 2D.1 of the Corporations Act 2001 (general duties of officers of corporations); or

                     (b)  the person becomes disqualified from managing corporations under Part 2D.6 of the Corporations Act 2001 .

Not fit and proper

             (5)  A ground for disqualification applies in relation to a person if, having regard to any events mentioned in subsection (6), the person is not a fit and proper person to hold office in an organisation.

             (6)  For the purposes of subsection (5), the events are the following:

                     (a)  the person is refused an entry permit, or an entry permit held by the person is revoked or suspended, under Part 3-4 of the Fair Work Act;

                     (b)  the person is refused a WHS entry permit, or a WHS entry permit held by the person is revoked or suspended, under Part 7 of the Work Health and Safety Act 2011 ;

                     (c)  the person is refused an entry permit (however described), or any such permit held by the person is revoked or suspended, under a State or Territory OHS law (within the meaning of the Fair Work Act);

                     (d)  in any criminal or civil proceedings against the person, or in any action against the person by an agency of the Commonwealth or a State or Territory, the person is found to have engaged in conduct involving fraud, dishonesty, misrepresentation, concealment of material facts or a breach of duty;

                     (e)  in any criminal proceedings against the person, the person is found to have engaged in conduct involving the intentional use of violence towards another person, the intentional causing of death or injury to another person or the intentional damaging or destruction of property;

                      (f)  any other event the Court considers relevant.

Division 4 Offences in relation to standing for or holding office etc. while disqualified

224   Simplified outline of this Division

A person who is disqualified from holding office in an organisation may commit an offence if the person is a candidate for, or holds or acts as if the person holds, office in an organisation.

225   Definition of disqualified from holding office in an organisation

                   A person is disqualified from holding office in an organisation if the person is:

                     (a)  not eligible to be a candidate for election to, or to hold, an office in an organisation under subsection 215(1); or

                     (b)  disqualified from holding office in an organisation under an order made under section 28N or 222.

Note:          The person is also disqualified from holding office in a branch of an organisation (see subsections 9(2), 28N(2) and 222(3)).

226   Offences

             (1)  A person commits an offence if:

                     (a)  the person is a candidate for election to an office in an organisation; and

                     (b)  the person is disqualified from holding office in an organisation.

Penalty:  100 penalty units or imprisonment for 2 years, or both.

             (2)  A person commits an offence if:

                     (a)  the person is an officer of an organisation; and

                     (b)  the person is disqualified from holding office in an organisation; and

                     (c)  if the person is disqualified from holding office in an organisation under subsection 215(1) and was holding an office in the organisation at the time of the conviction referred to in that subsection—the person has ceased to hold that office under subsection 215(2) or (3), 216(3) or 217(3).

Note:       Paragraph (2)(c) has the effect that a person who is holding office at the time the person is convicted of a prescribed offence does not commit an offence during the period the person is allowed to continue holding the office in accordance with sections 215, 216 and 217.

Penalty:  100 penalty units or imprisonment for 2 years, or both.

             (3)  A person commits an offence if:

                     (a)  the person is disqualified from holding office in an organisation; and

                     (b)  the person:

                              (i)  exercises the capacity to significantly affect the financial standing or other affairs of an organisation or a part of an organisation; or

                             (ii)  gives directions (not including advice given by the person in the proper performance of functions that relate to the person’s professional capacity) to the committee of management of an organisation or a part of an organisation; and

                     (c)  if subparagraph (b)(ii) applies—the person:

                              (i)  knows that the committee of management of the organisation or part is accustomed to act in accordance with the person’s directions; or

                             (ii)  intends that the committee of management will do so.

Penalty:  100 penalty units or imprisonment for 2 years, or both.

             (4)  Strict liability applies to the physical element of the offences against subsections (1), (2) and (3), that a person is disqualified from holding office in an organisation, if the person is disqualified under an order made under section 28N or 222.

             (5)  Nothing in this section affects the powers of the Federal Court in relation to punishment of contempt of the Court.

10  Subsection 255E(2)

Repeal the subsection, substitute:

             (2)  The Commissioner must refuse to grant the application if the person is disqualified from holding office in an organisation.

11  Section 307A

Repeal the section.

12  At the end of subsection 308(1)

Add:

Note:          Section 222 also allows the Commissioner, Minister, or a person with a sufficient interest to apply for a disqualification order in relation to a person’s contravention of a civil penalty provision of this Act, among other matters.

13  Paragraph 324(2)(g)

Omit “or to be elected or appointed”, substitute “to, or to hold, an office in an organisation”.

14  Subsection 325(2)

Omit “or to be elected or appointed”, substitute “for election to, or to hold, an office in an organisation,”.

15  Application of amendments

Definition of prescribed offence

(1)       Despite paragraph 213(a) of the Fair Work (Registered Organisations) Act 2009 (the Act ), Part 4 of Chapter 7 of the Act does not apply in relation to a conviction for a prescribed offence within the meaning of paragraph 212(aa) of the Act if:

                     (a)  the offence is not a prescribed offence within the meaning of another paragraph of section 212 of the Act; and

                     (b)  the conviction occurred before commencement.

Section 222 disqualification

(2)       In satisfying itself as to whether a ground for disqualification set out in section 223 of the Act as amended by this Schedule applies in relation to a person, the Federal Court may only have regard to the following:

                     (a)  for the ground mentioned in subsection 223(1) or (2)—a finding made in relation to conduct engaged in:

                              (i)  after commencement; and

                             (ii)  for paragraph 223(1)(b) or subparagraph 223(2)(a)(ii)—in relation to an order or injunction made after commencement;

                            and the matters mentioned in paragraph 223(2)(b);

                     (b)  for the ground mentioned in subsection 223(3)—a finding made in relation to conduct engaged in:

                              (i)  after commencement; and

                             (ii)  for subparagraph 223(3)(a)(iii)—in relation to an order or injunction made after commencement;

                            and a failure, after commencement, to take steps as mentioned in the subsection;

                     (c)  for the ground mentioned in subsection 223(4)—a finding made in relation to conduct engaged in, or a disqualification in relation to conduct engaged in or an event occurring, after commencement;

                     (d)  for the ground mentioned in subsection 223(5):

                              (i)  an event occurring after commencement; and

                             (ii)  for an event mentioned in paragraph 223(6)(d) or (e)—a finding made in relation to conduct engaged in after commencement.

(3)       However, the Court may have regard to matters occurring before or after commencement for the purposes of paragraph 222(2)(b) of the Act as amended by this Schedule.

Section 307A disqualification

(4)       Section 307A of the Act, as in force immediately before its repeal by this Schedule, continues in effect, after commencement and despite that repeal, in relation to conduct engaged in before commencement.

(5)       A reference in section 225 of the Act as amended by this Schedule to an order made under section 222 includes a reference to an order made under section 307A of the Act, including that section as continued in effect by subitem (4).

Commencement

(6)       In this item:

commencement means the start of the day this item commences.