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Workplace Relations (Registered Organisations) Bill 2001

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1998-1999-2000-2001

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

SENATE

 

 

 

 

 

 

 

 

 

 

 

 

 

WORKPLACE RELATIONS (REGISTERED ORGANISATIONS) BILL 2001

 

 

 

 

 

 

REVISED EXPLANATORY MEMORANDUM

 

 

 

THIS EXPLANATORY MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE HOUSE OF REPRESENTATIVES TO THE BILL AS INTRODUCED

 

 

 

 

 

 

(Circulated by authority of the Minister for Employment, Workplace Relations

and Small Business, the Honourable Tony Abbott MP)

 

 

 

 

 



WORKPLACE RELATIONS (REGISTERED ORGANISATIONS) BILL 2001

 

 

OUTLINE

 

The Act proposes to:

 

(a)           incorporate in one instrument all legislative provisions relating to the registration, deregistration, amalgamation and disamalgamation of registered organisations;

 

(b)          regulate the rules of these organisations;

 

(c)           provide for improved democratic control of organisations by regulating the conduct of elections for positions in organisations, and providing criteria for disqualification from office in an organisation;

 

(d)          improve the accountability of registered organisations by modernising the requirements for record-keeping, financial reporting, and access to financial records;

 

(e)           regulate the conduct of officers and employees of registered organisations; and

 

(f)            provide for penalties, including civil penalties and civil compensation, with respect to breaches of the provisions of the Act.

 

The Act is consistent with the Government’s commitment to provide greater choice and flexibility to registered organisations and their members.

 

The Act replicates many provisions relating to registered organisations in the Workplace Relations Act 1996 (WR Act), with some amendments.

 

The Act changes the provisions relating to registration, amalagamation and disamalgamation of organisations, the processes for conducting elections for offices in registered organisations and the financial accounting and reporting responsibilities of organisations.  In particular, the Act would:

 

  • introduce prohibitions on discriminatory conduct taken against a person who is involved in the formation or registration of a new employee association;

 

  • align financial accounting and reporting requirements of organisations with those applicable under the Corporations Law, including changes to:

 

-           the manner of the preparation of accounts and reporting processes;

 

-           the provision of information to members and access by members to financial information, for example by introducing requirements to comply with Australian Accounting Standards and to provide general purpose financial reports; and

 

  • establish a range of statutory fiduciary duties for officials of organisations in relation to financial management functions in line with those that apply to company directors and employees under the Corporations Law;

 

  • empower the Federal Court to invalidate rules of organisations which are discriminatory;

 

  • require organisations to regularly purge their records of non-financial members, to improve the records used for industrial elections and reporting purposes;

 

  • introduce a penalty for giving false or misleading information concerning resignation;

 

  • require organisations to provide information to its members on request concerning payments made in relation to payroll deduction arrangements for union dues;

 

  • introduce civil penalties for breaches of procedural requirements in relation to elections;

 

  • replace existing offence provisions concerning breaches of financial accounting, reporting and fiduciary duties offences with civil penalties; and

 

  • bring offence provisions into line with other Commonwealth legislation.

 

The Act is made up of 10 Chapters:

 

Chapter 1 contains the principal objects of the Act and definitions.  The principal objects of the Act are directed towards ensuring effective, accountable and democratic organisations.

 

Chapter 2 deals with the registration and cancellation of registration of organisations of employers and employees:

 

  • it includes criteria for registration as an organisation and proscribes discriminatory conduct against a person involved in the formation or registration of an employee association;

 

  • it empowers the Federal Court to cancel the registration of an organisation on certain grounds, for example, because the organisation or a substantial number of its members engaged in industrial action having a substantial adverse effect on the safety, health or welfare of the community;

 

  • it empowers the Australian Industrial Relations Commission (the Commission) to cancel registration on technical grounds, for example, when an organisation is defunct.

 

Chapter 3 deals with the amalgamation of two or more registered organisations and subsequent withdrawal from an amalgamation, including the procedures to be followed and ballots of members that must be conducted.  It also deals with the consequences of amalgamation and withdrawal from amalgamation, including in relation to ownership of assets and liabilities and respondency to awards and agreements.

 

Chapter 4 deals with the representation rights of unions and orders which the Commission may make in relation to a demarcation dispute.

 

Chapter 5 concerns rules of organisations and what they are required or permitted to cover, and procedures for alteration of rules.  It allows the Minister to develop model rules for organisations in relation to elections and the conduct of officers and employees.  It also contains a requirement that the rules of organisations must not be discriminatory.

 

Chapter 6 deals with rights to membership of an organisation (and conscientious objection to membership), and resignation of membership. It also requires that organisations periodically purge the names of non-financial members from their register of members.

 

Chapter 7 deals with elections for positions in an organisation, inquiries by the Federal Court into elections, and disqualification from holding office in an organisation.

 

Chapter 8 contains financial and reporting requirements for organisations, including:

 

  • requirements to keep records, including storage and access obligations;

 

  • requirements to lodge information with the Industrial Registrar;

 

  • requirements to keep financial and accounting records, the preparation of financial accounting reports and the auditing of such reports, reporting requirements and members’ rights of access to financial information and records; and

 

  • fiduciary duties of officers and employees with respect to the financial management of the organisation or a branch of the organisation.

 

Chapter 9 sets out penalties for contravention of civil penalty provisions, orders that the Federal Court may make, and who may apply for these orders.

 

Chapter 10 deals with miscellaneous matters, including:

 

  • validation of certain otherwise invalid acts;

 

  • financial assistance for applicants in proceedings under the Act in cases of hardship;

 

  • the conduct of investigations about compliance with financial accountability requirements; and

 

  • the power to make regulations.

 

 

FINANCIAL IMPACT STATEMENT

 

The Act will have some financial implications for the Industrial Registry.  The additional responsibilities given to the Registry for developing and maintaining new financial regulation requirements and prosecuting new penalty provisions, is estimated to result in additional costs of $63,000 a year .

 



NOTES ON CLAUSES

 

 

CHAPTER 1 - PRELIMINARY

 

 

Part 1 - Short title and commencement of Act

 

Clause 1 - Short Title

 

1.1                     This clause is a formal provision specifying the short title of the Act as the Workplace Relations (Registered Organisations) Act 2001 .

 

Clause 2 - Commencement

 

1.2                     This clause provides that, other than clauses 1 and 2, the provisions of the Act will come into operation on a day, or days, to be fixed by Proclamation. It also provides a default commencement date. If the Act has not commenced within 6 months of the date that it receives the Royal Assent, it will commence on the first day after that period.

 

Clause 3 - Act binds the Crown

 

1.3                     This clause provides that the Crown, in all of its capacities, is intended to be bound by the Act. The clause also provides that nothing in the Act renders the Crown liable to be prosecuted for an offence under the Act.

 

Part 2 - Objects of Act and general provisions

 

Clause 4 - Simplified Outline of Part

 

1.4                     This clause provides an outline of the contents of the chapter.

 

Clause 5 - Objects of the Act

 

1.5                     This clause sets out the principal objects of the Act, which are designed to ensure that organisations are efficient, accountable and democratic. The note to this clause makes it clear that the WR Act contains many provisions that affect the operation of the Act.

              

Clause 6 - Definitions

 

1.6                     This clause defines a number of terms used in the Act.

 



Clause 7 - Meaning of industrial action

 

1.7                     This clause defines ‘industrial action’ widely.  Under paragraphs (e) and (f) of the definition, conduct described in the definition is not to be regarded as industrial action by employees where agreed to or authorised by their employer, or as industrial action by an employer where agreed to or authorised by, or on behalf of, employees of the employer.

 

1.8                     The definition is the same as in subsection 4(1) of the WR Act.

 

Clause 8 - Meaning of industrial dispute

 

1.9                     This clause defines ‘industrial dispute’ in terms which reflect the definitions in subsections 4(1) and 4(3) and section 5 of the WR Act.  Section 5 of the WR Act extends the meaning of industrial dispute to include reference to specified industrial issues - matters pertaining to the relationship between waterside and maritime workers and flight crew officers and their respective employers so far as these relate to international or interstate trade or commerce or trade or commerce within a territory, and matters pertaining to the relation between employers and employees in public sector employment.

 

Clause 9 - Meaning of office

 

1.10                 This clause defines ‘office’. The term  ‘office’ is defined to cover various specified positions in organisations or their branches and certain other positions, including those the holders of which have direct responsibilities relating to the management, policy determination or rule-making and rule enforcement functions of organisations or branches.  The Act contains a number of provisions relating to the election of holders of such offices, and to their rights and responsibilities.  The definition excludes persons who carry out specified functions of the kind mentioned only under direction to implement existing policy or decisions.

 

Clause 10 - Forging and uttering

 

1.11                 This clause defines ‘forging’ and ‘uttering’. 

 

1.12                 A person is said to have forged a document if the person makes a document known to be false or changes a genuine document (without authority) with the intent that:

 

  • the false or altered document be used, acted on, or accepted as genuine to the prejudice of another person; or

 

  • another person in the belief that the document is genuine is induced to do an act or refrains from doing an act

 

  • a computer or other device responds to the false or altered document as a genuine documents to the prejudice of another person or with the result that a person result  is induced to do an act or refrains from doing an act

 

1.13                 A person is taken to utter a forged document if the person uses or attempts to use or deals with it, or attempts to induce another person to use, deal with, act upon or accept it.

 

Clause 11 - Functions of the Industrial Registry

 

1.14                 This clause outlines the functions of the Industrial Registry.  Subclause (1) provides that these functions are to keep a register of organisations and providing advice and assistance to organisations in relation to their rights and obligations under the Act. 

 

1.15                 Paragraphs (1)(a) and (b) replicate paragraphs 63(1)(a) and (c) of the WR Act.

 

1.16                 Subclause (2) provides that the register of organisations is to be kept in a form deemed appropriate by the Industrial Registrar.

 

1.17                 The obligation to enter particulars in the register is set out in clause 25.

 

Clause 12 - President may establish Organisations Panel

 

1.18                 This clause empowers the President of the Australian Industrial Relations Commission (the Commission) to establish a specialist Organisations Panel of Commissioners.

 

Clause 13 - Actions and opinions of AEC

 

1.19                 This clause ensures that a reference to a ballot or election conducted by the Australian Electoral Commission (AEC), or a reference to an opinion or state of mind of the AEC is taken to include a reference to an electoral official or a person authorised to carry out the functions of the AEC.

 

Clause 14 - Operation of offence provisions

 

1.20                 This clause explains the operation of offence provisions. Offence provisions are those provisions with a maximum penalty specified at the foot of each section or subsection as the case may be. A contravention of an offence provision is punishable by a penalty not exceeding the specified penalty.   The value of a penalty unit is currently set at $110.

 



CHAPTER 2 - REGISTERED ORGANISATIONS

 

2.1                     Chapter 2 deals with the registration of organisations, and sets out the types of associations that may apply for registration, the criteria for registration, prohibited conduct in relation to the formation or registration of unions, and the registration process (Part 2).  The Chapter also deals with the cancellation of registration of organisations, including the power of the Federal Court to order cancellation on certain grounds, the power of the Commission to cancel the registration on technical grounds, and the consequences of cancellation (Part 3).

 

2.2                     Currently, Division 1 of Part IX of the WR Act deals with the registration of organisations and Part X of the WR Act with cancellation.

 

 

Part 1 - Simplified outline of chapter

 

Clause 15 - Simplified outline of chapter

 

2.3                     This clause provides an outline of the contents of the chapter.

 

Part 2 - Registration

 

2.4                     Part 2 deals with the types of association that may apply for registration, the criteria for registration and prohibitions of certain conduct in relation to registration.

 

Division 1 - Types of associations that may apply for registration

 

Clause 16 - Types of association that may apply for registration

 

2.5                     This clause specifies the types of associations which may apply for registration, namely:

 

  • any association of employers who are capable of being engaged in an industrial dispute as defined in clause 8;

 

  • any association of employees that is capable of being engaged in such an industrial dispute; and

 

  • any association of employees performing work in the same enterprise.

 

2.6                     An association of employers may also have as members:

 

  • officers of the association;

 

  • persons, other than employees, who carry on a business; and

 

  • persons who, when admitted to membership, were employers and who have not resigned or had their membership terminated.

 

2.7                     However, where the association admits to membership persons within the last two mentioned categories, it is required to be effectively representative of members who are employers.

 

2.8                     An association of employees is also permitted to have as members:

 

  • officers of the association;

 

  • independent contractors who, if they were employees, would be eligible for membership of the association; and

 

  • certain persons specified in Schedule 1 of the Act, namely, persons who are deemed to be employees under specified State laws.

 

2.9                     However, where persons coming within the last two mentioned categories are members, the association must, under subclause 16(2) be effectively representative of the members who are employees.

 

2.10                 This clause replicates section 188 of the WR Act.

 

Division 2 - Registration criteria

 

Clause 17 - Registration Criteria for registration of organisations other than enterprise associations

 

2.11                 This clause sets out the criteria for registration of employer associations and employee associations, other than enterprise associations.  The criteria for registration for an enterprise association are covered by clause 18.

 

2.12                 Subclause (1) provides that the Commission must grant an application for registration made by an association (other than an enterprise association) if, and only if, all the relevant criteria set out are met:

 

  • the association is a genuine association coming within clause 16 for furthering or protecting the interests of its members;

 

  • in the case of an employee association, the association is free from control or improper influence by an employer or by an organisation or association of employers;

 

  • the association satisfies the minimum membership requirements;

 

  • the Commission is satisfied that the association will conduct its affairs in a manner that meets the obligations of an organisation under the Act and the WR Act (having regard, under subclause (4), to any recent conduct by the association or its members would have provided grounds for its de-registration under clause 118 had the association been registered at the time the conduct took place);

 

  • the rules of the applicant association meet the requirements of the Act (the rules of organisations are dealt with in Chapter 5 of the Act);

 

  • the name of the association is not the same, or confusingly similar to that of an organisation registered under the Act;

 

  • a resolution in favour of registration must have passed under the rules of an association by a majority of its members at a general meeting or an absolute majority of its committee of management;

 

  • the registration of the association would further the objects of the Act and the WR Act; and

 

  • there is no organisation to which the members of the association could more conveniently belong and which would more effectively represent the members of the association (this is designed to minimise demarcation issues between registered organisations and operates subject to subclause (2), which allows the Commission to accept an undertaking from an association to avoid demarcation disputes which might otherwise arise, and subclause (3) which requires the Commission to have regard to whether the representation is consistent with the objects of the Act and the WR Act).

 

2.13                 This clause replicates the requirements of subsections 189(1), (2) (3) and (5) of the WR Act.

 

Clause 18 - Registration criteria for enterprise associations

 

2.14                 Subclause (1) provides that the Commission must grant an application for registration made by an enterprise association if, and only if, all the criteria set out are met:

 

  • the association is a genuine association for furthering and protecting the interests of its members;

 

  • the association is free from control or improper influence by an employer, any person with an interest in the enterprise or any organisation;

 

  • the association has at least 50 members who are employees;

 

  • the rules of the applicant association must meet the requirements of the Act (the rules of organisations are dealt with in Chapter 5 of the Act);

 

  • the name of the association is not the same, or confusingly similar to that of an organisation registered under the Act;

 

  • the Commission is satisfied that the association will conduct its affairs in a manner that meets the obligations of an association under the Act and the WR Act and that a majority of persons eligible to be members support its registration as an organisation;

 

  • a resolution in favour of registration must have been passed under the rules of the association by a majority of its committee of management; and

 

  • the registration of the association would further the objects of the Act and the WR Act.

 

Division 3 - Prohibited conduct in relation to formation or registration of employee associations

 

2.15                 Division 3 prohibits certain conduct by employers, organisations and members relating to the formation or registration of employee associations.  It also enables the Federal Court to impose penalties or orders it considers necessary on persons who engage in prohibited conduct.

 

Clause 19 - Prohibited conduct - employers

 

2.16                 This clause proscribes certain conduct by employers in relation to employees or independent contractors if the conduct is carried out for a prohibited reason (as defined in subclause (3):

 

  • in the case of employees,  the dismissal of an employee, injuring an employee in his or her employment, altering an employee’s position to the employee’s prejudice, and discriminating against an employee (subclause (1)); and

 

  • in the case of independent contractors, the termination of a contract for services, injuring the independent contractor in relation to the terms and conditions of the contract for services , altering the independent contractor’s position to the independent contractor’s prejudice, and discriminating against an independent contractor (subclause (2)).

 

2.17                 Subclause (3) sets out the reasons that are prohibited from being the basis for the conduct in subclauses (1) and (2), namely that the conduct was carried out because the employee or independent contractor has done or omitted to do any act relating to the formation or registration of an association, or in connection with or preparation for such an act or omission.

 

2.18                 Subclause (4) gives examples of the acts or omissions contemplated in subclause (3).

 

Clause 20 - Prohibited conduct - organisations

 

2.19                 This clause prohibits certain conduct by organisations against employers, employees and independent contractors, designed to prevent the formation or registration of an association.

 

2.20                 Subclause (1) prohibits an organisation or officer or member of an organisation taking, or threatening to take, industrial action with the aim of coercing a person to contravene clause 19.

 

2.21                 Subclause (2) prohibits an organisation, or a member of officer of an organisation, from taking, or threatening to take, any action for a ‘prohibited reason’ or for reasons that include a prohibited reason. The definition of ‘prohibited reason’ in subclause (3) is the same as its definition in subclause 19(3).

 

2.22                 Subclause (4) adopts the list of examples given in subclause 19(4) as examples of  conduct to which subclause (3) applies.

 

2.23                 Subclause (5) prohibits an organisation, or an officer or member of the organisation, from taking or threatening to take adverse action because the member is connected with an act or omission relating to the formation or registration of an association.

 

Clause 21 - Powers of the Federal Court in relation to prohibited conduct

 

2.24                 This clause gives the Federal Court the power to make orders in respect of contraventions of clauses 19 and 20.  In the case of orders made against organisations, non-compliance with such an order may be a ground for cancellation of registration (see clause 33).

 

2.25                 The orders that the Federal Court may make include:

 

  • a penalty of up to 100 penalty units for a body corporate or 20 penalty units in any other case (e.g. on a person or unincorporated organisation);

 

  • an order prohibiting a person or organisation from carrying out a threat or making any further threat;

 

  • an injunctions and any other order that the Court considers necessary to stop the conduct or remedy its effects.

 

2.26                 Subclause (2) sets out who may seek such an order.

 

Clause 22 - Certain actions considered to be done by organisation or employer

 

2.27                 This is a deeming provision.  Paragraph (1)(a) deems actions by certain bodies and persons to be actions by an organisation.  Subclause (2) avoids the operation of the deeming provision in certain cases by an appropriate person in the organisation taking reasonable steps to prevent the action

 

2.28                 Paragraph (1)(b) deems actions by an agent of an employer to be actions by an employer, unless the employer has taken reasonable steps to prevent the action (paragraph (2)(b)).

 

Division 4 - Registration process

 

Clause 24 - Applicant for registration may change its name or alter its rules

 

2.29                 Subclauses (1) and (2) enable an applicant association with leave from the Commission to change its name or alter its rules to comply with the requirements of the Act (including to ensure that its rules are not contrary to the WR Act), to remove grounds of objection to its registration or to correct a formal or technical error in its rules.

 

2.30                 Subclause (3) provides that rule alterations under subclause (1) are binding on members.

 

Clause 25 - Registration

 

2.31                 This clause sets out the procedures to be followed when the Commission grants an application for registration.  It requires the Industrial Registrar to immediately enter into the register of organisations such particulars as are prescribed by the Regulations in relation to the association and the date of entry, whereupon the association is taken to be registered as an organisation.

 

2.32                 The clause also requires the Industrial Registrar to issue a certificate of registration in the prescribed form (the certificate is conclusive evidence of registration).  The Industrial Registrar may issue a copy of the certificate or a replacement certificate to an organisation.

 

Clause 26 - Incorporation

 

2.33                 This clause confers corporate status on an organisation and provides for appropriate powers and duties.

 

Part 3 - Cancellation of registration

 

2.34                 Part 3 of Chapter 2 deals with the powers of the Federal Court to cancel the registration of an organisation on certain grounds and the powers of the Australian Industrial Relations Commission to cancel registration on technical grounds. It also deals with the consequences of cancellation.

 

 

Clause 27 - Application for cancellation of registration

 

2.35                 This provision sets out grounds for cancellation of the registration of an organisation in circumstances where its behaviour or that of its members can properly be regarded as not being consistent with its rights and obligations within the federal industrial relations system.

 

2.36                 Subclause (1) allows an organisation, a person interested or the Minister to apply to the Federal Court for an order cancelling the registration of an organisation.

 

2.37                 Five main grounds for such an order are specified in paragraphs (1) (a) to (e). They are generally concerned with industrial misconduct by organisations or their members. These grounds relate to continued breaches of awards, certified agreements and orders or conduct preventing or hindering the achievement of an object of the WR Act, conduct preventing or hindering trade or commerce, interference with the provision of a public service by the Commonwealth, a State or a Territory or their authorities, conduct harmful to public safety, health and welfare,  or non-compliance with injunctions to prevent the contravention of strike pay provisions or of orders to stop or prevent industrial action.

 

2.38                 Subclause (2) requires an organisation to be given an opportunity to be heard.

 

2.39                 Subclause (3) requires the Court, upon finding that a ground of an application has been established, to cancel the registration of the organisation. The Court must, however, first consider whether to do so would be unjust in the light of the seriousness of the matters constituting that ground and any action which has otherwise been taken by or against the organisation in relation to those matters.

 

2.40                 Subclause (4) enables alternative orders to be made where the ground for cancellation is a result of the conduct of a particular section or class of members of the organisation. In such a case, the Federal Court is to be able to exclude from eligibility for membership persons in that section or class, including persons eligible for membership under an agreement with a State registered union.

 

2.41                 Subclause (5) permits the Court to specify a period during which an association whose registration has been cancelled may not have any application to be re-registered dealt with.

 

2.42                 Subclauses (6) and (7) are technical and interpretative.

 

Clause 28 - Orders where cancellation of registration deferred

 

2.43                 Under this provision, the Federal Court may, if it thinks it just, make orders other than for the cancellation of the registration of an organisation where a ground has been established under clause 27.

 

2.44                 The powers which may be exercised by the Federal Court are set out in subclause (2).  An order made under these powers have effect in spite of anything in the rules of the organisation or of a branch (subclause (4)). The powers relate to:

 

·           suspending the rights, privileges or capacities of the organisation or of all or any of its members in that capacity under this Act or any federal Acts or under awards, orders or certified agreements;

 

·           giving directions as to the exercise of any suspended rights, privileges or capacities;

 

·           restricting the use of the funds or property of an organisation or branch.

 

2.45                 Subclause (3) provides for the deferral, where such powers are exercised, of the Court’s determination as to whether the registration of an organisation should be cancelled.

 

2.46                 The duration of orders under subclause (2) is dealt with in subclause (5).

 

 

Clause 29 - Cancellation of registration on technical grounds etc.

 

2.38 2.47                 This clause provides for the Commission to cancel the registration of an organisation in various circumstances. These cover:

 

·           an application by an organisation in accordance with the regulations;

 

·            the organisation being registered by mistake;

 

·           an organisation ceasing to be effectively representative of members who are employers or employees;

 

·           an organisation not being free from control by or improper influence from the employer;

 

·           in the case of an enterprise union, the enterprise to which it relates has ceased to exist;

 

·           the organisation no longer meets minimum membership requirements.

 

Clause 30 - Cancellation to be recorded

 

2.39 2.48                 The Industrial Registrar is required to record the cancellation of the registration of an organisation in the register of organisations.

 

Clause 31 - Consequences of cancellation

 

2.40 2.49                 This clause sets out the consequences of cancellation of registration for the status, property, entitlements and liabilities of the former organisation and its members.

 

Part 4 - Commission’s powers under this Chapter

 

Clause 43 - Exercise of Commission’s power under this Chapter

 

2.41 2.50                 This clause provides that the powers of the Commission under Chapter 2 are exercisable only by a Presidential Member.



 

CHAPTER 3 - AMALGAMATION AND WITHDRAWAL FROM AMALGAMATION

 

Chapter 3 deals with the procedure for, and consequences of, amalgamation and disamalgamation of organisations.

 

Part 1 - Simplified outline of chapter

 

Clause 44 - Simplified Outline

 

3.1                     This clause provides an outline of the contents of the chapter.

 

Part 2 - Amalgamation of organisations

 

3.2                     Subject to minor changes, the provisions in this Part reflect Division 7 of Part IX of the WR Act.  Relevant offences in Part XI of the WR Act have been integrated into this Part.

 

Division 1 - General

 

Clause 45 - Definitions

 

3.3                     This clause defines a number of terms used for the purposes of Part 2 of Chapter 3 (Amalgamation of organisations).

 

Section 46 - Procedure to be followed for proposed amalgamation etc.

 

3.4                     This clause provides that amalgamations involving registered organisations must be in accordance with Part 2 of Chapter 3.

 

3.5                     The clause prohibits the Commission from performing any act (such as cancellation of registration, registration or giving of consent to a change of name or to the alteration of eligibility rules) other than in accordance with this Part, where it appears to the Commission that the performance of that act is sought for the purposes of an amalgamation.

 

3.6                     The clause also enables the Commission to give directions or make orders to resolve any difficulty in the application of the Act in implementing the scheme for the proposed amalgamation.

 

Clause 47 - Exercise of Commission’s powers under this Part

 

3.7                     This clause provides that the powers of the Commission under Part 2 of Chapter 3 are exercisable only by a Presidential Member.



Division 2: Preliminary matters

 

Clause 48 - Federations

 

3.8                     This clause enables the establishment of a federation of organisations prior to their amalgamation.  It provides a mechanism whereby organisations intending to amalgamate can have their interests represented under the Act by a single body.  This process may assist the organisations concerned in their preparation for a future amalgamation.

 

3.9                     Subclauses (1) and (2) set out the procedure to be followed for recognition as a federation.  Organisations which propose to amalgamate may, before lodging an application to initiate the formal amalgamation process under clause 54, lodge an application (containing prescribed particulars) for recognition as a federation with the Industrial Registry. 

 

3.10                 Under subclause (3), the Commission is required to grant the application if satisfied that the organisations intend to lodge an application to initiate the formal amalgamation procedures.  Once the application has been granted the Industrial Registrar is required to record prescribed details in the register of organisations (subclause (4)).

 

3.11                 Subclause (5) enables a federation to represent its constituent members for the purposes of the Act or the WR Act; for instance, by representing them in proceeding before the Commission or the Federal Court.  However, a federation may not be a party to an award, certified agreement or old IR agreement (subclause (6)).

 

3.12                 Subclause (7) enables a registered federation to vary its composition by including or releasing an organisation from the federation, subject to the approval of the Commission.

 

3.13                 Subclause (8) states the circumstances in which the federation ceases to exist:

 

  • upon the amalgamation taking effect;

 

  • if the prescribed period (to be provided for in the Regulations) has elapsed without the lodging of an application under clause 54 to initiate the formal amalgamation process;

 

  • if a Full Bench of the Commission finds that the federation’s industrial conduct (or the conduct of an organisation belonging to the federation) is preventing or hindering the attainment of an object of the Act or the WR Act.

 

3.14                 Subclause (9) makes it clear that membership of a federation does not limit an organisation’s right to represent itself or its members.



 

Clause 49 - Use of resources to support proposed amalgamation

 

3.15                 This clause is intended to make it clear that an organisation is not prevented from using its resources, financial or otherwise, to support a proposed amalgamation in which it is involved.

 

3.16                 Under subclause (1), a committee of management is able to authorise the use of its resources to support the approval of a proposed amalgamation in which the organisation is involved.  The committee of management should have resolved that the organisation should use its resources.  To protect the interests of members, the subclause requires that they be given reasonable notice of the resolution of the committee of management.

 

3.17                 Subclause (2) makes it clear that the proposed section does not limit any other power that an organisation has to use its financial and other resources in support of or for any other purposed of an amalgamation.

 

Division 3: Commencement of amalgamation procedure

 

3.18                 Division 3 of Chapter 3 contains provisions relating to the initiation of the procedures leading to the approval or rejection of a proposed amalgamation.

 

Clause 50 - Scheme for amalgamation

 

3.19                 Subclause (1) requires there to be a formal scheme for a proposed amalgamation.  The details required to be contained in the scheme are specified in subclause (2), although other matters may be included (subclause (3)). 

 

3.20                 The scheme is to be approved (clause 52) and lodged (clause 54).  The scheme may be altered or amended (clause 71).

 

Clause 51 - Alternative scheme for amalgamation

 

3.21                 A proposed amalgamation involving 3 or more organisations will fail to proceed if it is not approved by the members of each of those organisations.

 

3.22                 Where an amalgamation involving 3 or more organisations fails, this provision enables the amalgamation scheme to provide in such circumstances for an alternative amalgamation of some of the organisations concerned.

 

3.23                 Subclause (1) authorises the inclusion in a scheme of provisions for an alterative amalgamation and sets out how it may operate.

 

3.24                 Subclause (2) stipulates certain additional particulars which must be included in a scheme which provides for an alternative amalgamation.



 

Clause 52 - Approval by committee of management

 

3.25                 Subclause (1) requires the committee of management of each existing organisation to approve, by resolution, the scheme for a proposed amalgamation as well as any alteration to the scheme.

 

3.26                 Subclause (2) concerns the approval for the purposes of a scheme of proposed alterations to the rules of an organisation concerned in a proposed amalgamation.

 

3.27                 All of the following approvals may be given even though a different procedure for such approvals is expressed in the organisation’s existing rules:

 

  • to avoid delay, a committee of management of an organisation may approve the scheme, as well as any alterations to the scheme and any proposed alteration to the organisation’s rules, as provided for in the scheme;

 

  • the committee of management may also approve variations to the proposed rule alterations specified in the scheme. 

 

3.28                 It is open to a committee of management to decide which procedure to follow.

 

Clause 53 - Community of interest declaration

 

3.29                 This clause enables existing organisations concerned in a proposed amalgamation to seek a declaration that they have a community of interest.  Such a declaration means that less onerous requirements apply in relation to the required return of votes in an amalgamation ballot (see notes on clause 76).

 

3.30                 Subclause (1) permits an application to be made for a community of interest declaration.  The time for making an application is specified in subclause 53(2).  It may be made before or at the same time as the lodging under clause 54 of an application for an approval for the submission of an amalgamation to ballot.

 

3.31                 Subclause (3) requires the Commission to arrange for a hearing in relation to the application for a declaration before the application under clause 54.  Under clause 64, submissions to such a hearing may only be made by the applicants or by any other person with the leave of the Commission and in relation to a prescribed matter. 

 

3.32                 Where an application for a declaration is lodged with the application under clause 54, the hearing is to be conducted under clause 63.

 

3.33                 Subclause (4) requires a declaration of a community of interest to be made if the Commission is, at the conclusion of a hearing, satisfied as to the existence of such a community of interest. 

 

3.34                 Subclauses (5) and (6) set out the circumstances in which the Commission must be satisfied as to the existence of a community of interest between organisations in relation to their industrial interests.  The Commission must be satisfied that a substantial number of members of one of the organisations concerned meets one of the criteria set out in subclause 53(5) or 53(6) as the case may be (subclause (7) makes it clear that the criteria are not exhaustive and that the Commission may find that a community of interest exists in other circumstances).

 

3.35                 Subclause (8) provides that a declaration of community of interest will lapse if, having been made in anticipation of an application under clause 54, no such application is made within 6 months.  This is not intended to prevent further applications for a declaration of a community of interest.

 

3.36                 Subclause (9) enables the Commission to revoke a declaration of community of interest if satisfied that a community of interest has ceased to exist.  This provision is intended to put beyond doubt the Commission’s power in this regard, for which general provision is made in paragraph 111 (1) (f) and subsection 111 (2) of the WR Act.

 

3.37                 Subclause (10) requires the Commission to give reasonable notice of intention to revoke to each applicant organisation and give each applicant organisation an opportunity to be heard.

 

Clause 54 - Application for approval for submission of amalgamation to ballot

 

3.38                 This clause sets out the initiating step in the formal process for seeking the Commission’s approval of the submission of an amalgamation to a ballot of members.

 

3.39                 Subclause (1) requires organisations concerned in a proposed amalgamation and any association which is proposed to be registered as an organisation under the amalgamation, to lodge a joint application to a ballot of the members with the Industrial Registry.

 

3.40                 Subclause (2) requires the application to be accompanied by the scheme for the amalgamation (see notes on clause 50) and an outline of the scheme.  The outline is intended to be a simple explanation of the amalgamation. 

 

3.41                 Subclause (3) requires the outline to not exceed 3,000 words and to provide sufficient information on the scheme so as to enable members of the existing organisations to make an informed decision on the amalgamation scheme before participating in a ballot.

 

Clause 55 - Holding office after amalgamation

 

3.42                 Subclause (1) allows transitional arrangements under which the rules of a proposed amalgamated organisation or an association intended to be registered in place of the amalgamating organisations provide for:

 

  • a person who holds an office in any of the organisations concerned immediately before their amalgamation to hold a different office after the amalgamation without being elected to that office as normally required under the Act; and

 

  • the continuation in office after an amalgamation of a person who holds that office in an organisation which is not deregistering for the purposes of the amalgamation provided the person held that office immediately before the amalgamation.

 

3.43                 Subclause (1) excludes the normal requirement under clause 141 for an election but limits the period of appointment or continuation in office to the unexpired part of the term of office or the period of 2 years after the day on which the amalgamated takes effect.

 

3.44                 Under subclause (2), the rules of the proposed amalgamated organisation must not permit a person who holds office in one of the organisations concerned in the amalgamation, to hold an office in the proposed amalgamated organisation after the amalgamation takes effect, without an ordinary election being held in relation to the office for longer than the unexpired part of the term of office.

 

3.45                 Under subclause (3), reasonable provision must be made for synchronising elections for the offices so held with other elections in the organisation after the amalgamation.  It is intended that this be done where it is practical to do so.

 

3.46                 Subclause (4) excludes the ordinary time limits under clause 143.

 

3.47                 Subclause (5) provides for the ordinary requirements of clause 144 to apply for the filling of a casual vacancy in an office held in accordance with subclause (1).  Accordingly the rules will be able to permit the filling of such a casual vacancy for the unexpired term other than by an ordinary election, provided that unexpired term does not exceed three quarters of the full term of the office or 12 months, whichever is the greater.

 

Clause 56 - Application for exemption from ballot

 

3.48                 This clause relates to an exemption from a ballot of members of a large organisation which is amalgamating with a much smaller body.

 

3.49                 Subclause (1) allows an organisation concerned in a proposed amalgamation to apply to the Commission for such an exemption.

 

3.50                 Subclause (2) requires the application to be lodged at the same time as the application for approval of the submission of the amalgamation to ballot under clause 54.

 

Clause 57 - Application for ballot not conducted under section 75

 

3.51                 This clause deals with an application for a ballot conducted other than by secret postal ballot.

 

3.52                 Subclause (1) permits an organisation concerned in a proposed amalgamation to apply to the Commission for permission to have an amalgamation ballot conducted other than by secret postal ballot under clause 75 (clause 74 sets out the criteria for such an alternative ballot).

 

3.53                 Under subclause (2), an application must be lodged with the application for approval of the submission of the amalgamation to ballot.

 

Clause 58: Lodging ‘yes’ case

 

3.54                 This clause deals with the lodging by an organisation of a statement in favour of a proposed amalgamation for distribution to members in the ballot.

 

3.55                 Subclause (1) permits the lodging of such a written statement, not exceeding 2000 words, in support of the proposed amalgamation and any alternative amalgamation which is proposed should the principal amalgamation fail.  Under clause 70, material other than words may be permitted to be included in the statement.

 

3.56                 Subclause (2) requires the lodging of the statement with the application for approval of the submission of the application to ballot.

 

Division 4 - Role of the AEC

 

Clause 59 - Ballots to be conducted by the AEC

 

3.57                 This clause requires all amalgamation ballots under Part 2 of Chapter 3 to be conducted by the Australian Electoral Commission.  Reference should be made to clause 81 under which the Commonwealth bears the cost of such ballots.

 

Clause 60 - Notification of AEC

 

3.58                 This clause is intended to ensure that the Australian Electoral Commission is given the earliest opportunity to prepare for any ballots that may be required.

 

3.59                 Subclause (1) requires the Industrial Registrar to notify the Australian Electoral Commission at once when an application is lodged under clause 54 for approval for the submission of the amalgamation to ballot.

 

3.60                 Subclause (2) requires the Australian Electoral Commission to take such action as it considers necessary or desirable to conduct any prospective ballots as quickly as possible.

 

3.61                 Clause 249 is relevant in this context.

 

Clause 61 - Providing information etc. to electoral officials

 

3.62                 Subclause (1) provides that an official of the Australian Electoral Commission who has written authorisation from the Commission is empowered to require an officer or employee of an organisation by written notice to provide information or documents.  This may only be done where this is reasonably necessary for the purposes of an amalgamation ballot.

 

3.63                 Subclause (2) makes it an offence for an officer or employee of an organisation or branch to fail to comply with a request under subclause (1).

 

3.64                 Subclause (2B) provides that the strict liability offence in subclause (2) is subject to a reasonable excuse defence. In accordance with drafting practice, a legislative note would make it clear that the defendant bears the evidentiary burden with respect to the defence.

 

3.65                 Subclause (3) requires a person to provide such information, or produce or make available a document for inspection, not withstanding that to do so may tend to incriminate the person.

 

3.66                 However, subclause (4) states that any information that is provided, or document produced or made available by a person, and any information, document or thing obtained as a consequence of the person providing such information, or producing or making available such a document, is admissible against that person in criminal proceedings or proceeding which may expose the person to a penalty, other than proceedings under subclause 62(3).

 

3.67                 Subclause (5) enables the electoral official to require the information or document to be made available in electronic form if it is kept in that form.

 

Clause 62 - Declaration by secretary etc. of organisation

 

3.68                 This clause is a new provision.  It provides that, if an electoral official makes a request under subclause 61(1) in relation to a register of members of an organisation or part of it (required to be kept under clause 219), subclause (1) requires the secretary or other prescribed officer of the organisation to make a declaration that the register has maintained in accordance with subclause 219(2).

 

3.69                 The declaration must be in writing and provided to the Industrial Registry no later than the day before voting in the relevant election commences (subclause (2)).

 

3.70                 Subclause (3) makes it an offence for a person to make a statement in the declaration that is false or misleading.

 

Division 5 - Procedure for approval of amalgamation

 

3.71                 Division 5 provides for the steps to be taken from the lodging of an application under clause 54 for approval of the submission of the amalgamation to ballot up to the declaration of the result of any such ballot.

 

3.72                 An alternative to a secret postal ballot in an amalgamation ballot is to be available, subject to certain safeguards.

 

Clause 63 - Fixing hearing in relation to amalgamation etc

 

3.73                 Paragraph (a) requires the Commission, upon the lodging of an application under clause 54, to fix the time and place for hearing submissions relating to that application and any other application lodged with it (e.g. an application for a community interest declaration under clause 53 or an application for an exemption from a ballot under clause 56 or an amalgamation ballot other than by secret postal ballot under clause 75).

 

3.74                 Subparagraphs (a) and (b) provide for the notification of organisations and other interested persons of the hearing.

 

Clause 64 - Submissions at amalgamation hearings

 

3.75                 This clause enables applicants to make submissions at a hearing of applications, arranged under subclause 53(3) or clause 63.  Other persons may only make submissions by leave of the Commission and on matters prescribed in the regulations.

 

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

 

3.76                 This clause sets out a procedure whereby, if certain conditions are met, a proposed amalgamation is to proceed to ballot without objections being permitted.

 

3.77                 Subclause (1) sets out the criteria that must be met before approval to proceed to a ballot under this clause by the Commission following a hearing under clause 63:

 

  • no new organisation is to be registered;

 

  • the eligibility rule of the amalgamated organisation will be no wider than the combined eligibility rules of the amalgamating organisations;

 

  • the amalgamated organisation’s name will not be the same or confusingly similar to that of another organisation;

 

  • any rule alterations will not contravene the Act or the WR Act, awards, certified agreements or old IR agreements, and general law; and

 

  • any deregistration of a participating organisation for the purposes of the amalgamation meets specified requirements and is lawful.

 

3.78                 If any of the criteria are not met, the Commission must, under subclause (2), refuse to approve the submission of the amalgamation to ballot unless it takes the action described in subclauses (3) and (7).

 

3.79                 Subclauses (3) and (4) permit the Commission to authorise the alteration of the scheme for the amalgamation and of any proposed rule alterations.  Such authorisation may be subject to conditions (subclause (5))  Subclause (6) makes it clear that subclause 65(5) does not limit the powers of the Commission.

 

3.80                 Subclause (7) enables the Commission to adjourn the proceeding if otherwise than by this clause it would have been required to refuse to approve the submission of the amalgamation to ballot.  This does not limit the Commission’s power to adjourn the proceeding at any stage (subclause (8)).

 

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

 

3.81                 This clause enables objections to be made by a prescribed person on a prescribed ground where the Commission has refused to approve the submission of an amalgamation to a ballot because it does not meet the criteria specified in clause 65.

 

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

 

3.82                 Under this clause, where any objections made under clause 66 have been heard and dismissed and certain other specified criteria are met, the Commission must approve the submission of the amalgamation to ballot.  The Commission may, if an application would otherwise be refused under this clause, permit certain steps to be taken by the applicants to meet the requirements for approval.

 

3.83                 Provision is made under subclause (1) for authorising the submission of an amalgamation to ballot where any objections are dismissed and criteria similar to those set out in clause 65 are met.

 

3.84                 Subclause (2) requires the Commission to refuse to approve the submission of the amalgamation if not satisfied that criteria have been met.

 

3.85                 Under subclause (3), the Commission may, rather than refuse to approve the submission of the amalgamation to ballot, permit alterations to the scheme or accept an undertaking to alter the scheme.

 

3.86                 Subclauses (4) and (5) enable the Commission to permit a committee of management to make any requisite alterations to the scheme (including to proposed rules or rule alterations) under, if necessary, a procedure specified by the Commission.

 

3.87                 Subclause (6) deals with non-compliance with conditions or an undertaking relating to altering the scheme.  The Commission may make suitable amendments to the scheme, or give directions and orders relating to the conduct of the amalgamation ballot or the amalgamation procedure.

 

3.88                 Subclause (7) provides that subclause (6) does not limit any other powers of the Commission.

 

3.89                 Under subclause (8), the Commission may adjourn the proceeding rather than refuse to approve a submission of the amalgamation to ballot.  This does not limit the power of the Commission to adjourn at any other stage (subclause 67(9)).

 

 

 

Clause 68 - Fixing commencing and closing days of ballot

 

3.90                 Where an amalgamation is approved for submission to a ballot, the Commission must, fix the commencing and closing days of the ballot (subclause (1)).  For this purpose, the Commission must consult the Electoral Commissioner.

 

3.91                 The commencing day is to be no later than 28 days after the day on which the approval is given, unless the Commission considers that the Australian Electoral Commission requires a longer period or the organisations concerned request a later commencing day (subclause (2)).

 

3.92                 Other provisions are made under subclauses 68(3) to 68(5) in relation to the commencing and closing days for ballots on alterative amalgamation proposals as well as for varying commencing and closing days.

 

Clause 69 - Roll of voters for ballot

 

3.93                 This clause specifies the persons who may vote in an amalgamation ballot.

 

3.94                 The roll of voters is to comprise persons who, on the day on which the commencing and closing days for the ballot are fixed, or 28 days before the commencing day for the ballot (whichever is the later):

 

  • are entitled under the rules of an organisation involved in the amalgamation to vote at such a ballot; or

 

  • when there is no such provision in the rules, are entitled under the rules of the organisation rules to vote in an election ballot for an office in the organisation

 

3.95                 The early involvement under clause 61 of the Electoral Commission in preparation for an amalgamation should permit the roll of voters to be complied by the day on which the Commission fixes the commencing and closing days.

 

Clause 70 - ‘Yes’ case and ‘no’ case for amalgamation

 

3.96                 This clause deals with a statement supporting a proposed amalgamation (a ‘yes case’ statement), which may be lodged with the Industrial Registry under subclause 58, as well as the lodging by a prescribed number of members of the organisation of a written statement opposing a proposed amalgamation and any proposed alternative amalgamation (a ‘no case’ statement).

 

3.97                 Under subclause (1) the Commission may permit an organisation to alter its ‘yes case’ statement.

 

3.98                 Subclause (2) permits a prescribed number of members of the organisation to lodge with the Industrial Registry a ‘no case’ statement (subclause (10) sets out the minimum number of members required - 1000 or 5% of the total membership of the organisation (calculated on the day the application for approval of the submission of the amalgamation to ballot was lodged under clause 54), whichever is the lesser).

 

3.99                 The statement must be lodged no later than 7 days before the date fixed by the Commission for hearing submissions about the amalgamation and must not exceed 2000 words.

 

3.100             The Commission may, under subclause (3), allow alterations to the ‘no case’ statement.

 

3.101             Under subclause (4), a copy of both the ‘yes case’ and ‘no case’ statements, if lodged, must, subject to subclauses (5), (6) and (7), accompany the ballot paper sent to the persons entitled to vote in the amalgamation ballot, unless the ballot is conducted otherwise than by secret postal ballot (subclause (9)).

 

3.102             Where there are more than one ‘no case’ statements lodged, the Commission is required to prepare or to have prepared a single ‘no case’ statement of no longer than 2000 words, based on all the ‘no case’ statements lodged (subclause (5)).  This is to be done, where practical, in consultation with representatives of the persons who lodged the ‘no case’ statements, and the final statement must fairly present the substance of all arguments against the amalgamation.  The statement must be provided to persons entitled to vote in the amalgamation ballot as if it had been lodged under subclause (2).

 

3.103             If necessary, the Commission may alter such a statement after it has been settled.

 

3.104             Under subclause (6), the Commission has power to correct factual errors in either a ‘yes case’ or a ‘no case’ statement or amend it to comply with the Act or regulations.

 

3.105             Under subclauses (7) and (8), a ‘yes case’ or ‘no case’ statement may contain matter such as diagrams, photographs, drawings, etc.

 

Clause 71 - Alteration and amendment of scheme

 

3.106             This clause enables alterations and amendments to be made to a proposed amalgamation scheme.  Reference should also be made to clauses 52, 65 and 67. The clause is intended to make the amalgamation proposals more adaptable, by allowing the scheme to be altered, for example, to reflect changes to the rules of an organisation before an amalgamation takes place.

 

3.107             Under the succession provisions in Division 6 of Part 2 of Chapter 3, an amalgamated organisation will take the place of a deregistered organisation for the purposes of any uncompleted matters which might, if completed before the amalgamation, have resulted in a change to the scheme.

 

3.108             Under subclauses (1), (2) and (3) the Commission may:

 

  • in the case of a new organisation, alter the scheme for the amalgamation at any time before the commencing day of the amalgamation ballot and include alterations to the rules of any proposed or existing organisation involved in the amalgamation.

 

  • in the case of an existing organisation, give permission to alter any aspect of the scheme of amalgamation, including any proposed rules, subject to conditions.

 

3.109             Where the Commission has given permission, the committees of management of existing organisations involved in the amalgamation may, by resolution, alter the scheme, including the proposed rules of the amalgamated association, notwithstanding anything in their rules.

 

3.110             Under subclause (4), if the Commission has permitted the alteration of the scheme subject to conditions, and those conditions are breached, the Commission may then amend the scheme, including in relation to:

 

  • any rules of a proposed organisation,

 

  • any alterations proposed to the rules of existing organisations involved in the amalgamation.

 

3.111             If any alteration to the scheme for amalgamation occurs, the outline of the scheme must be amended appropriately (subclause (6)).

 

3.112             The Commission may also give directions or orders regarding the conduct of the amalgamation ballot or specifying the procedure which must be followed regarding the amalgamation.

 

3.113             Subclause (5) makes it clear that it is not intended that the specification of the Commission’s powers in subclause (4) limit the Commission’s powers generally.

 

Clause 72 - Outline of scheme for amalgamation

 

3.114             This clause should be read with subclauses 54(2) and (3), which require an outline of the scheme, not exceeding 3000 words, to be lodged.

 

3.115             Subclause (1) gives the Commission discretion to allow more than 3000 words.

 

3.116             Under subclause (2), the Commission may permit the outline to include material not in the form of words, such as diagrams, photographs and illustrations.

 

3.117             Under subclause (3), the Commission may allow the existing organisations involved in the amalgamation to amend the outline.  In addition, the Commission may amend the outline to correct factual errors and to ensure that it complies with the provisions of the Act.

 

Clause 73 - Exemption from ballot

 

3.118             Under this clause, an existing organisation involved in a proposed amalgamation (the proposed amalgamated organisation) may apply to be exempted from the requirement for an amalgamation ballot.

 

3.119             Under subclause (1), where a proposed amalgamated organisation has applied for such an exemption, if the total number of members who could, because of the amalgamation, be admitted to membership of the proposed amalgamated organisation does not exceed 25% of the number of members that the organisation had on the day it applied for the exemption, the Commission must grant the application.  The application may be refused if the Commission considers that it be warranted.

 

3.120             Under subclause (2), if the exemption applied for under clause 56 is granted, the members of the proposed amalgamated organisation are taken to have approved both the proposed principal amalgamation and each proposed alternative amalgamation, if any.

 

Clause 74 - Approval for ballot not conducted under section 75

 

3.121             Under this clause, an existing organisation concerned in proposed amalgamation may seek approval for a proposal to conduct an amalgamation ballot, other than by secret postal ballot conducted by the Australian Electoral Commission under clause 75. 

 

3.122             This clause sets out the circumstances in which such an application may be granted:

 

  • the proposal satisfies the various criteria specified in subclause 74(b) (which are intended to ensure a fair ballot conducted by the Australian Electoral Commission at meetings with proper provision for notice, secret voting and absent voting); and

 

  • the Commission has consulted with the Electoral Commissioner and is satisfied that the proposal: is practicable, is likely to result in a fuller participation of members than would result in a ballot conducted under clause 75, and will give members adequate opportunity to vote on the amalgamation without intimidation.

 

3.123             If satisfied, the Commission must approve the proposal at the conclusion of a hearing concerning the proposed amalgamation arranged under clause 63.

 

Clause 75 - Secret postal ballot of members

 

3.124             Under subclause (1), once a proposed amalgamation has been approved by the Commission for submission to ballot in accordance with clause 65 or 67, a secret postal ballot must be conducted by the Australian Electoral Commission for members of each existing organisation involved in the proposed amalgamation.  However, subclause (1) does not apply where an exemption from a ballot has been granted under clause 73 or the ballot is to be conducted under clause 74.

 

3.125             Where an amalgamation scheme includes both a principal amalgamation and a proposed alternative amalgamation, subclause (2) requires the Australian Electoral Commission to conduct, at the same time and in the same manner as the ballot in relation to the principal amalgamation, a ballot in respect of each alternative amalgamation proposal.

 

3.126             The question to be put to the members of each of the organisations involved in the proposed amalgamation is whether, in the event that the proposed principal amalgamation does not take place, they approve the proposed alterative amalgamation or amalgamations.

 

3.127             Subclause (3) provides that, in the event that more than one ballot is necessary, only one ballot paper is to be used for all ballots.

 

3.128             Under subclause (4), the votes in a ballot conducted in relation to a proposed alterative amalgamation need be counted only if it is necessary to know the results of that ballot because the principal amalgamation was not approved, or for some other purpose of the Act.

 

3.129             Subclause (5) requires a copy of the outline of the amalgamation scheme to accompany the ballot paper sent to a person entitled to vote in the amalgamation ballot.  If the outline has been altered or amended, the copy sent with the ballot paper must include these alterations or amendments.

 

3.130             Subclause (6) provides that in a ballot conducted under clause 75, each completed ballot paper must be returned in the declaration envelope provided, which must be in the approved form (subclause (7)).

 

3.131             Subclause (8) requires a ballot under this clause to be conducted as prescribed.

 

3.132             Subclause (9) provides that this clause does not apply if an exemption from the requirement that a ballot be held in relation to the proposed amalgamation was granted under clause 73 or if the Commission has approved a proposal under clause 74.

 

Clause 76 - Determination of approval of amalgamation by members

 

3.133             The minimum voting requirements necessary for an approval of an amalgamation by members of an existing organisation involved in an amalgamation are to be:

 

  • if a community of interest declaration is in force under clause 53 in respect of the proposed amalgamation, the proposed amalgamation is approved by a single majority;

 

  • otherwise, an amalgamation is approved only if at least 25% of the members on the roll of voters (as complied in accordance with clause 69) have voted in the amalgamation ballot and if more than 50% of the formal votes cast are in favour of the amalgamation.

 

Clause 77 - Further ballot if amalgamation not approved

 

3.134             This clause enables a proposed amalgamation that has failed at ballot to be resubmitted.  It permits the Commission to dispense with various steps, for example, if there has been no change to the scheme since the amalgamation was last approved for submission to ballot.

 

3.135             This discretion may only be exercised if the fresh application is made within 12 months.

 

Clause 78 - Post-ballot report by AEC

 

3.136             Subclause (1) requires the Australian Electoral Commission to provide a report on the conduct of a ballot to the Federal Court, the Industrial Registrar and each applicant under clause 54, after completion of a ballot.

 

3.137             The report must include details of matters prescribed by regulation (subclause (2)).

 

3.138             Subclause (3) requires the Australian Electoral Commission, in relation to postal ballots (subclause (4)), to state in the report, if it is of that opinion, that the register of members or part thereof made available to AEC for the purposes of the ballot contained an unduly large proportion of members’ addresses that were not current or were workplace addresses.

 

Clause 79 - Inquiries into irregularities

 

3.139             Subclause (1) enables an application to be made to the Federal Court for an inquiry into alleged irregularities in relation to an amalgamation ballot (reference should be made to the definition of ‘irregularity’ in clause 6).

 

3.140             The application must be made within 30 days of the result of the ballot being declared.

 

3.141             Where the Court concludes that an irregularity has occurred and that this may affect or might have affected the result of the amalgamated ballot, subclause (2) empowers the Court to:

 

  • order that a step in the ballot process be taken again, where the ballot is incomplete; or

 

  • order a fresh ballot, where the ballot is completed; and

 

  • any other order it considers necessary or desirable

 

3.142             Subclause (3) enables regulations to specify the procedure of the Federal Court for inquiries by the Court into alleged ballot irregularities and for related matters.

 

Clause 80 - Approval of amalgamation

 

3.143             Under subclause (1), a proposed amalgamation is to be taken as approved if the members of each organisation concerned have approved it in a ballot in accordance with Part 2.

 

3.144             Under subclause (2), if, in a proposed amalgamation of more than two organisations, the principal amalgamation is rejected, but the members of two or more of the existing organisations approve the proposed alternative amalgamation, the proposed alternative amalgamation is taken o have been approved.

 

3.145             However, if, in the proposed amalgamation scheme, one of the existing organisations is the proposed amalgamated organisation, the members of that organisation must have approved of the proposed alternative amalgamation in the amalgamation ballot.

 

Clause 81 - Expenses of ballot

 

3.146             This clause requires the Commonwealth bears the expenses of an amalgamation ballot.

 

Clause 82 - Offences in relation to ballot

 

3.147             This clause sets out offences relating to interference with ballot papers, hindering and obstructing the ballot process, intimidation and bribery, and maintaining secrecy.   Similar provisions apply to ballots for withdrawal from amalgamations (see notes to clause 115).

 

3.148             Subject to minor changes this clause reflects subsections 317(2), 317(3) and 317(4) of the WR Act.

 

Division 6 - Amalgamation taking effect

 

3.149             Division 6 provides for the taking effect of a proposed amalgamation which has been approved at ballot.  There are a number of provisions which automatically make the amalgamated organisation the successor of the de registered organisation or organisations for various purposes.

 

Clause 83 - Action to be taken after ballot

 

3.150             A proposed amalgamation which is approved takes effect under this clause.

 

3.151             Subclause (2) requires the Commission, after consulting the organisations concerned, to fix an ‘amalgamation day’ on which the amalgamation is to take effect.  ‘Amalgamation day’ is defined in clause 45.  Notice of the day is to be published.

 

3.152             Under subclause (2), before fixing the amalgamation day, the Commission must be satisfied that:

 

  • the time for applying under clause 79 for an inquiry into ballot irregularities has expired (30 days after declaration of the result of the ballot), or that there are no matters relating to such an inquiry outstanding;

 

  • there are no unresolved criminal proceeding against any organisation concerned in the amalgamation; and

 

  • the proposed amalgamated organisation will regard itself bound by any outstanding obligations under Commonwealth law by an existing organisation.

 

3.153             Under subclause (3), on amalgamation day:

 

  • the Industrial Registrar must register the amalgamated organisation;

 

  • any alterations to its rules takes effect;

 

  • the Commission is required to cancel the registration of the proposed deregistering organisation or organisations; and

 

  • members of the deregistering organisation automatically become members of the amalgamated organisation, without having to pay an entrance fee.

 

3.154             Under subclause (4), where an organisation has given a undertaking under paragraph 2(d), the Commission may, after giving the organisation a opportunity to be heard, determine that the undertaking has been breached and make any orders it considers necessary to ensure compliance with the undertaking.

 

3.155             This clause replicates section 253Q of the WR Act save for addition requirements in paragraph (2)(d) and subclause (4) in relation to organisations being bound by existing obligations.

 

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

 

3.156             On the amalgamation day, all assets and liabilities of an organisation, which were deregistered for the purposes of the amalgamation, thereupon become the assets and liabilities of the amalgamated organisation, and cease to be assets and liabilities of the deregistered organisation.  The terms ‘asset’ and ‘liability’ are widely defined in clause 45.

 

Clause 85 - Resignation from membership

 

3.157             This clause modifies the operation of clause 178 (which deals with resignation from membership of an organisation) for the purposes of the amalgamation provisions.  Normally, except in certain specific cases, a resignation is only effective at the end of 2 weeks after its receipt by an organisation, or such shorter period as is stipulated in the rules of the organisation.  This clause reduces the specified time of 2 weeks to 1 week or such shorter period as the Commission directs.  This reduction applies on and from the day on which the amalgamation day is fixed.

 

Clause 86 - Effect of amalgamation on awards, orders and certified agreements

 

3.158             Awards and orders of the Commission which were binding on a deregistering organisation and its members immediately before the amalgamation took effect become automatically binding on the amalgamated organisation and its members, and are effective for all purposes.  References in such awards or orders to an organisation which was deregistered for the amalgamation are to be read to include references to the amalgamated organisation.

 

Clause 87 - Effect of amalgamation on agreement under section 149

 

3.159             Under subclause (1), on and from the amalgamation day, the amalgamated organisation becomes bound to any agreement to which the de-registered organisation was party.  Subclause (2) requires the Industrial Registrar to enter in the register of organisations particulars of the effect of the amalgamation on the agreement.

 

Clause 88 - Instruments

 

3.160             This clause ensures continuity in the operation and effect of instruments. 

 

3.161             The terms ‘instrument’ and ‘instrument to which this Division applies’ are widely defined in clause 45.

 

3.162             Under subclause (1), such instruments continue in force from the time of  the amalgamation.

 

3.163             Subclause (2) provides that, for matters occurring from that time, a reference in an instrument to a deregistered organisation is to be read as referring to the amalgamated organisation.

 

Clause 89 - Pending proceedings

 

3.164             This clause ensures continuity in Court and Commission proceedings.  It provides that the amalgamated organisation takes the place of the deregistered organisation in all proceedings pending, immediately before the amalgamation day, before a court or before the Commission. 

 

Clause 90 -Division applies despite laws and agreements prohibiting transfer etc.

 

3.165             Under subclause (1), the provisions of Division 6 of Part 2 of Chapter 3 prevail over any other Commonwealth, State or Territory law, and over any contract, deed, undertaking, agreement or other instrument.

 

3.166             Subclause (2) protects an organisation or other person, in respect of anything done by or because of the subdivision, or for its purposes, from liability under Commonwealth, State or Territory law or the common law for the consequences of those actions.

 

3.167             Under paragraph (2) (c), however, nothing in Division 6, and nothing done by a person because of or for the purposes of Division 6, releases to any extent any surety from all or any of the surety’s obligations.

 

3.168             By subclause (3), where the consent of a person would normally by necessary to give effect to any particular aspect of this subdivision, the consent is deemed to have been given.

 

Clause 91 - Amalgamated organisation to take steps necessary to carry out amalgamation

 

3.169             Subclause (1) requires the amalgamated organisation to do everything necessary to ensure that, when an amalgamation has taken place, it is fully effective.  Subclause (2) empowers the Federal Court, on the application of an interested person, to make orders, as appropriate, to ensure compliance with subclause (1).

 

Clause 92 - Certificates in relation to land and interests in land

 

3.170             This clause applies where land or an interest in land has been transferred under Division 6 of Part 2 of Chapter 3 from a deregistered organisation to an amalgamated organisation.

 

3.171             This clause enables a simple certificate to provide the authority for the appropriate State or Territory official (eg, a Registrar of Titles) to register and otherwise give effect to the change in ownership or in the holding of the interest.

 

Clause 93 - Certificates in relation to charges

 

3.172             This clause applies where the amalgamated organisation becomes, by force of Division 6 of Part 2 of Chapter 3, the holder of a charge.

 

If:

 

  • an authorised person signs a certificate which identifies the charge and states that the amalgamated organisation has become, under this subdivision, the holder of the charge; and

 

  • the certificate is lodged with the Australian Securities and Investment Commission (ASIC);

 

ASIC may register the matter in the normal manner, and deal with and give effect to the certificate as if it were a properly lodged notice of assignment if the charge. The words ‘charge’ and ‘holder’ are defined in clause 45.

 

Clause 94  - Certificates in relation to shares etc.

 

3.173             Clause 94 applies where the amalgamated organisation becomes, by force of Division 6 of Part 2 of Chapter 3, the holder of a share, debenture or interest in a company.

 

3.174             If an authorised person signs a certificate identifying the share, etc, and stating that the amalgamated organisation has, under Division 6, become the holder of the share, etc; and the certificate is delivered to the company, the company is required to:

 

  • register the matter in the usual way; and

 

  • to complete all appropriate documents and deliver them to the amalgamated organisation as if the certificate were a proper instrument of transfer.

 

3.175             ‘Debenture’ and ‘interest’ are defined in clause 45.

 

Clause 95 - Certificates in relation to other assets

 

3.176             This clause  applies where an asset, other than an asset under the preceding three clauses, becomes an asset of the amalgamated organisation.

 

If:

 

  • an authorised person signs a certificate identifying the asset and stating that, under Division 6 of Part 2 of Chapter 3, the asset belongs to the amalgamated organisation; and

 

  • the certificate is given to the person or authority responsible under the relevant State, Commonwealth or Territory law for keeping a register of such assets;

 

that person or authority may register the matter in the normal manner, and deal with and give effect to the certificate as if it were a proper and appropriate instrument for transaction concerning such an asset.

 

3.177             ‘Asset’ is defined in clause 45.

 

Clause 96 - Federal Court may resolve difficulties

 

3.178             Subclause (1) enables the Federal Court of Australia to make any order it considers proper to resolve any difficulty arising in relation to the application of Division 6 of Part 2 of Chapter 3 to a particular matter.

 

3.179             Under subclause (2), such an order prevails over a Commonwealth, State or Territory law.

 

3.180             An application for such an order may be made by any interested person.

 

Division 7 - Validation

 

3.181             An underlying objective of Part 2 and of its predecessor in Division 7 of Part IX of the WR Act, is to avoid or minimise difficulties in respect of amalgamations.

 

3.182             Accordingly, certain acts by organisations or their officers for the purposes of an amalgamation are to be treated as valid, if done in good faith and if their validation would not do substantial injustice to interested persons or bodies.  The Federal Court has jurisdiction over these matters.

 

3.183             Division 7 of Part 2 of Chapter 3 of the Act contains appropriate provisions for this purpose which complement the validating provisions in Part 2 of Chapter 10.

 

3.184             Definitions of terms used in this Division (such as ‘defect’ and ‘invalidity’) appear in clause 45.

 

Clause 97 - Validation of certain acts done in good faith

 

3.185             Under subclause (1), acts done for the purposes of a proposed or completed amalgamation by specified persons or bodies are valid if done in good faith, notwithstanding any invalidity later discovered in relation to the act concerned (the specified persons or bodies are an organisation concerned in the amalgamation, a committee of management of the organisation or an officer).

 

3.186             Subclause (2) sets out certain presumptions in relation to an act under subclause (1) which are consistent with a general presumption of validity until the contrary is established.

 

3.187             Under subclause (3), the validating provisions in that clause apply to an act done to or by an association whenever it was done, and to an act done to or by an association before it became registered.

 

3.188             Subclause (4) makes it clear that the validating provisions in that clause do not affect the operation of an order of the Federal Court made before the commencement of the clause; and the provisions in clause 97 do not affect the operation of:

 

  • clause 79 (inquiries into irregularities);

 

  • clause 91 (requiring an amalgamated organisation to take steps to carry out the amalgamation and enabling the Federal Court to make appropriate orders in this respect), or

 

  • clause 96 (the capacity of the Federal Court to resolve any difficulties arising from the application of Division 6 of Part 2 to a particular matter), or

 

  • the operation of the validating provisions in Part 2 of Chapter 10.

 

3.189             The definition of ‘invalidity’ in clause 45 includes a ‘defect’, which is separately defined in the same clause as excluding an irregularity in relation to a ballot.  This is to ensure that the separate legislative scheme for dealing with irregularities in amalgamation ballots is not affected.

 

Clause 98 - Validation of certain acts after 4 years

 

3.190             Subclause (1) enables an act by an organisation concerned in the amalgamation or committee of management or officer of the organisation which was done for the purposes of an amalgamation to be taken to have complied with the rules of an organisation rules and the requirements of Part 2 of Chapter 3 if 4 years have elapsed from the day on which the act was done.

 

3.191             Such validation by passage of time is subject to displacement by an order of the Federal Court under clause 99.

 

3.192             Subclause (2) also exempts certain judicial decisions, orders and the like from the effects of subclause (1).

 

3.193             Subclause (3) provides that this clause applies to an act done to or by an association whenever it was done, and to an act done to or by an association before it became registered.

 

Clause 99 - Orders affecting application of section 97 or 98

 

3.194             This clause enables the Federal Court to displace the validating provisions of clauses 97 and 98, where it would be just to do so.

 

3.195             Under subclause (1), if the Federal Court is satisfied that the application of clauses 97 and 98 would do substantial injustice, having regard to the interests of specified persons, it must make a declaration.

 

3.196             Under subclause (2), such a declaration completely displaces any operation of clauses 97 and 98.

 

3.197             Subclause (3) specifies who may seek a declaration.

 

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

 

3.198             This clause empowers the Federal Court, on application, to determine whether there has been an invalidity in relation to an amalgamation or proposed amalgamation and to make certain orders to correct the invalidity.

 

3.199             Subclause (1) sets out who may apply for such a determination.

 

3.200             Under subclauses (2) and (3), the Court may make an appropriate declaration and orders to correct the invalidity and validate anything consequentially made invalid owing to the invalidity.

 

3.201             As a safeguard, subclause (5) requires the Court, before making an order to rectify the invalidity or its consequences, to satisfy itself that substantial injustice would not occur to the organisation, a member, creditor or person dealing with it.

 

3.202             Subclause (6) applies the section to an invalidity occurring before the commencement of the section or in relation to an association before it was registered.



 

Part 3 - Withdrawal from amalgamations

 

3.203             Subject to minor changes, the provisions in this Part reflect Division 7A of Part IX of the WR Act.  Relevant offences in Part XI of the WR Act have been integrated into this Part.

 

Division 1: General

 

Clause 101 - Object of Part

 

3.204             This clause provides that the object of Part 3 of Chapter 3 is to allow, in a manner that is fair to the members of the organisations concerned, and the creditors of those organisations:

 

  • the reconstitution and re-registration of certain organisations that have taken part in amalgamations; and

 

  • branches of such organisations to be formed into organisations and registered.

 

Clause 102 - Definitions

 

3.205             This clause defines a number of relevant terms for the purposes of Part 3 of Chapter 3. 

 

Division 2 - Ballots for withdrawal from amalgamated organisations

 

Clause 103 - Applications to the Federal Court for ballots

 

3.206             Subclause (1) provides for an application to be made to the Federal Court for a secret ballot to decide whether a constituent part of an amalgamated organisation should withdraw from the organisation.

 

3.207             An application may be made only if the requirements of paragraphs (1)(a), (b) and (c) are satisfied.  These requirements limit the provisions to amalgamations that occur after 1 February 1991 (when amendments encouraging amalgamations came into effect), and specify a period after which the amalgamation cannot be undone.

 

3.208             Subclause (2) prevents an application being made within 12 months of either the Court having rejected an application in relation to the constituent part of the organisation or a proposal for withdrawal having been rejected in a ballot.

 

3.209             Subclause (3) sets out who may make an application for a disamalgamation ballot.

 

3.210             Subclause (4) requires the application for a disamalgamation ballot to be in the prescribed form and to contain the prescribed information.

 

3.211             Subclause (5) deals with the status of non-financial members.

 

Clause 104 - Outline of proposed withdrawal

 

3.212             This clause requires a written outline of the proposal for disamalgamation to accompany an application for withdrawal from an amalgamated organisation.  The outline must:

 

  • include sufficient information on the proposal to enable constituent members to make informed decisions in relation to the proposed withdrawal and to address matters prescribed by the regulations in a fair and accurate manner;

 

  • not exceed 3000 words (unless authorised by the Federal Court); and

 

  • be a fair and accurate representation of the proposed withdrawal.

 

3.213             If the Federal Court is not satisfied that the outline is a fair and accurate representation of the proposed withdrawal or has addressed prescribed matters in a fair and accurate manner, it must order any amendments it considers necessary to ensure compliance with these requirements.

 

3.214             Under clause 108, the Federal Court may allow the outline to include diagrams, drawings, illustrations, photographs, symbols and the like.

 

Clause 106 - Filing the ‘yes’ case

 

3.215             This clause enables the applicant to file with the Federal Court a written statement of up to 2,000 words in support of the disamalgamation.  The statement must be filed at the same time as application, unless the Court allows filing at a later time (subclause (2)).  The Court may order amendments to be made to correct factual errors or to ensure that the statement complies with the Act (subclause (3)).

 

3.216             Under clause 108, the Federal Court may allow the statement to include diagrams, drawings, illustrations, photographs, symbols and the like.

 

Clause 107 - Filling the ‘no’ case

 

3.217             The amalgamated organisation is authorised to file with the Federal Court a written statement of up to 2,000 words opposing the disamalgamation.  The statement must be filed no later than 7 days before the day the ballot application is due to be heard, unless the Court allows filing at a later time (subclause (2)).  The Court may order amendments to be made to correct factual errors or to ensure that the statement complies with the Act (subclause (3)).

 

3.218             Under clause 108, the Federal Court may allow the statement to include diagrams, drawings, illustrations, photographs, symbols and the like.

 

Clause 108 - Provisions relating to outlines and statements of ‘yes’ and ‘no’ cases

 

3.219             The Federal Court may allow an outline filed under clause 104 or the statement in support or the statement in opposition to the disamalgamation (filed under clause 106 or clause 107, respectively) to include diagrams, drawings, illustrations, photographs, symbols and the like.  The Court may also allow an outline or a statement to be amended by the person who filed it.

 

Clause 109 - Notifying of applications for ballots

 

3.220             When an application is made under clause 103, the Registrar of the Federal Court must immediately notify the Australian Electoral Commission (subclause (1)).  Following this notification, the Australian Electoral Commission must then take appropriate steps to ensure that it is able to conduct the ballot as quickly as possible (subclause (2)).

 

Clause 110 - Orders for ballots

 

3.221             Subclause (1) sets out the matters that the Court must be satisfied before ordering a ballot on the question of whether a constituent part should withdraw from an amalgamation:

 

  • the application for the ballot has been validly made;

 

  • the outline is a fair and accurate representation of what is proposed and addresses matters prescribed in the regulations in a fair and accurate manner; and

 

  • any requirements prescribed by regulations have been met.

 

3.222             Subclause (2) lists the persons who may be heard by the court

 

3.223             Subclause (3) provides that the Court may make such orders as it thinks fit in relation to the conduct of the ballot.

 

Clause 111 - Financial members only eligible to vote

 

3.224             This clause is a new provision which limits the constituent members of an amalgamated organisation who are eligible to vote in a disamalgamation ballot to financial members of the organisation. 

 

3.225             The clause also provides that regulations may prescribe additional classed of members who are eligible to vote at the ballot.

 

Clause 112 - Conduct of ballots

 

3.226             Subclause (1) requires the Australian Electoral Commission to carry out the ballot in accordance with the regulations. It also makes clear that the Commonwealth bears the cost of disamalgamation ballots - this reflects current practice.

 

3.227             The ballot paper is to be accompanied by a copy of the outline, as well as a copy of a statement in support of, or of a statement in opposition to, the withdrawal if any (subclause (2)).

 

3.228             Subclause (3) requires that each ballot paper must be returned to the AEC in the declaration envelope provided.

 

Clause 113 - Providing information etc. to electoral officials

 

3.229             An electoral official, who has written authorisation from the AEC, may require (by written notice) an officer or an employee of the amalgamated organisation or a branch thereof to provide to the official, within a reasonable period, information or documents (subclause (1)).  If the information or documents is kept in an electronic form, the electoral official may require production in that form (subclause (5)).

 

3.230             Subclause (2) makes it an offence for an officer or employee to fail to comply with the requirement to provide information or documents.

 

3.231             Subclause (2B) provides that the strict liability offence in subclause (2) is subject to a reasonable excuse defence. In accordance with drafting practice, a legislative note would make it clear that the defendant bears the evidentiary burden with respect to the defence.

 

3.232             Subclause (3) requires a person to provide such information, or produce or make available a document for inspection, not withstanding that to do so may tend to incriminate the person.

 

3.233             However, consistent with Commonwealth criminal law policy, any information or document produced, and any information, document or thing obtained as a consequence of the person providing such information or document, is inadmissible against that person in criminal proceedings or proceeding which may expose the person to a penalty, other than proceedings under 114(3).

 

Clause 114 - Declaration by secretary etc. of organisation

 

3.234             This clause is a new provision.  It provides that, if an electoral official makes a request under subclause 113(1) in relation to a register of members of an organisation or part of it required to be kept under clause 219, the secretary (or other prescribed officer) of the organisation must make a declaration that the register has maintained in accordance with the requirements of the legislation (see subclause 219(2)) (subclause (2)).

 

3.235             The declaration must be in writing and provided to the Industrial Registry no later than the day before voting in the relevant election commences (subclause (2)).

 

3.236             Subclause (3) makes it an offence for a person to make a statement in the declaration that is false or misleading.

 

Clause 115 - Offences in relation to ballots

 

3.237             This clause sets out offences relating to interference with ballot papers, hindering and obstructing the ballot process, intimidation and bribery, and maintaining secrecy.  Similar provisions apply to ballots for amalgamations (see notes to clause 82).

 

3.238             Subject to minor changes this clause reflects subsections 317(2), 317(3) and 317(4) of the WR Act.

 

Clause 116 - Notifying of results of ballots

 

3.239             The regulations will specify the manner in which the result of a ballot held must be given.

 

Clause 117 - Post-ballot report by AEC

 

3.240             Subclause (1) requires the Australian Electoral Commission to provide a report on the conduct of a ballot to the Federal Court, the Industrial Registrar and each applicant under clause 103, after completion of a ballot.

 

3.241             Subclause (2) requires the report to include details of matters prescribed by regulation.

 

3.242             Subclause (3) requires the Australian Electoral Commission to state in the report, if it is of that opinion, that the register of members or part thereof made available to AEC for the purposes of the ballot contained an unduly large proportion of members’ addresses that were not current or were workplace addresses. 

 



 

Division 3 - Giving effect to ballots

 

Clause 118 - Determining the day of withdrawal

 

3.243             This clause provides for the fixing of a day on which a withdrawal from an amalgamation takes effect, and related matters. 

 

3.244             If a majority (more than 50 per cent) have voted in favour of the withdrawal of the constituent part of the amalgamated organisation, the Federal Court must determine:

 

  • the day on which the withdrawal is to take effect (paragraph (1)(a));

 

  • make orders in connection with the apportionment of the assets and liabilities of the organisation (paragraph (1)(b) and subclause (2)); and

 

  • make other orders necessary to give effect to the withdrawal (paragraph (1)(c)), e.g. changes to eligibility rules.

 

3.245             Subclauses (3) prescribes those who may make an application.  The classes reflect those who may apply for a ballot order (clause 103).

 

3.246             Subclauses (5) and (6) make further provision in relation to the applicants and the form and content of the application.

 

Clause 119 - Registration of constituent part

 

3.247             This clause provides for the registration of the constituent part as an organisation and the entry of its particulars in the register of organisations kept by the Industrial Registry under paragraph 11(1)(a).

 

Clause 120 - Choice of organisation following withdrawal of separately identifiable constituent part

 

3.248             This clause provides a mechanism for members to decide whether to become a member of a newly disamalgamated organisation or to remain a member of the host organisation.

 

Clause 121 - Members of amalgamated organisation may join newly registered organisations

 

3.249             This clause provides for members of the amalgamated organisation who fall within the eligibility rules of the newly registered organisation to join the latter, without payment of a membership fee.

 



 

Clause 122 - Orders of the Commission, awards etc. made before withdrawal.

 

3.250             This clause provides for the application of awards, orders and certified agreements following a withdrawal from an amalgamation. On the day that the registration of the newly registered organisation takes effect all applicable awards, orders and certified agreements become binding on the newly registered organisation and its members, and have effect for all purposes.

 

Clause 124 - Other matters

 

3.251             This clause states that the regulations may provide for other matters related to giving effect to the withdrawal of the constituent part. These include, but are not limited to, the matters specified in paragraphs (a) to (f).

 

Clause 125 - This Division applies despite laws and agreements prohibiting transfer etc.

 

3.252             The purpose of this clause is to protect an organisation or person from liability under Commonwealth, State or Territory law, or the common law in relation to actions carried because of, or for a purpose connected to or arising out of, Division 3 of Part 3 of Chapter 3:

 

  • however, nothing done pursuant to that Division is taken to release a surety, wholly or in part, from his or her obligations (paragraph (2)(c));

 

  • if the consent of a person is required to enable a transaction to be carried out, such consent is deemed to have been given (subclause (3)).

 

Division 4 - Miscellaneous

 

Clause 126 - Federal Court may resolve difficulties

 

3.253             This clause gives the Federal Court the power to make discretionary orders for the purpose of resolving difficulties which arise in relation to the application of Part 3 of Chapter 3. 

 

3.254             Any order made by the Federal Court prevails over any law of the Commonwealth, State or Territory, or the rules of an organisation or association seeking registration as an organisation.

 

Clause 127 - Certain actions etc. not to constitute breach of rules of amalgamated organisation

 

3.255             This clause provides that certain acts or omissions relating to a proposed withdrawal from an amalgamation cannot constitute a breach of the rules of the amalgamated organisation.

 

Clause 128 - Amalgamated organisation not to penalise members etc.

 

3.256             This clause prohibits certain conduct designed to impede the pursuit of a disamalgamation (subclause (1)).  The Federal Court is empowered to issue injunctions and make other orders in respect of conduct or threatened conduct, and to order for penalties of up to 100 penalties units in the case of a body corporate or 20 penalty units in other cases (subclause (2)).

 

3.257             Subclause (3) sets out who may apply to the Federal Court for an order.

 

3.258             Subclause (4) is a deeming provision. It deems actions by certain bodies and persons to be actions by an organisation.  Subclause (5) avoids the operation of the deeming provision in certain cases by an appropriate person in the organisation taking reasonable steps to prevent the action.

 

3.259             Subclause (6) defines relevant terms.



 

CHAPTER 4 - REPRESENTATION ORDERS

 

4.1                     Chapter 4 enables the Australian Industrial Relations Commission to make orders in the context of demarcation disputes about the representation rights of unions.

 

Part 1 - Simplified outline of Chapter

 

Clause 129 - Simplified Outline

 

4.2                     This clause provides an outline of the contents of the chapter.

 

Part 2 - Representation orders

 

4.3                     The provisions of this Part reflect section 118A of the WR Act.

 

Clause 130 - Orders about representation rights of organisations of employees

 

4.4                     This clause deals with the Commission’s powers to alter the rights of employee organisations to represent, under the Act, the industrial interests of particular classes or groups of employees. 

 

4.5                     Subclause (1) specifies the circumstance in which the Commission may make orders concerning organisational coverage to orders in settlement of demarcation dispute (the term ‘demarcation dispute’ is defined in clause 6)

 

4.6                     Subclause (2) makes it clear that the Commission may vary any order on application by an organisation, employer or the Minister.  This is a new provision.

 

Clause 131 - Preconditions for making of orders

 

4.7                     Subclause (1) provides that the Commission cannot make an order concerning organisational coverage unless it has decided not to refer the dispute to conciliation, or conciliation had not fully settled the dispute. 

 

4.8                     Subclause (2) limits the power of the Commission to make an order concerning organisational coverage to circumstances where it is satisfied that the conduct or threatened conduct of an organisation or an officer, member or employee of an organisation is preventing or interfering with the performance of work or is harming the business of an employer or that such consequences have ceased but are likely to recur or are imminent.

 

4.9                     This is intended to ensure that organisations do not have their representation rights restricted unless their conduct is harmful to the conduct of normal business.

 

Clause 132 - Factors to be taken into account by Commission

 

4.10                 This clause requires the Commission, in considering whether to make an order under clause 130, to have regard to the matters specified in that clause.  Those matters include the wishes of the employees who are affected by the dispute, the effect of any order on the operations of certain employers and the consequences of not making an order on any employer, employee or organisation involved in the dispute.

 

4.11                 The Commission is also required to have regard to any relevant agreements or understandings of which it becomes aware that affect the representation rights of the organisations concerned.

 

Clause 133 - Order may be made subject to limits

 

4.12                 This clause is a technical item, which makes it clear that an order made under clause 130 may be subject to conditions or limitations.

 

Clause 134 - Organisation must comply with order

 

4.13                 This clause requires an organisation to which an order under clause 130 applies to comply with the order, and gives the Federal Court jurisdiction to make orders to ensure compliance.

 

Clause 136 - Exercise of Commission’s powers under this Chapter

 

4.14                 This clause provides that the powers of the Commission under Chapter 4 are exercisable only by a Full Bench or Presidential Member.

 



CHAPTER 5 - RULES OF ORGANISATIONS

 

5.1                     This Chapter sets out the requirements for organisations’ rules (see Part 2). Part 3 sets out processes available to members who think that their organisation’s rules do not comply with this Chapter, or are not being followed.

 

5.2                     This chapter generally reflects the relevant provisions in Part IX of the WR Act, (particularly Divisions 2 and 3 which deal with rules of organisations and validity and performance of rules respectively).

 

Part 1 Simplified outline of Chapter

 

Clause 137 - Simplified outline

 

5.3                     This clause provides an outline of the contents of the chapter. 

 

Part 2—Rules of organisations

 

Division 1 - General

 

Clause 138 - Organisations to have rules

 

5.4                     An organisation is required to have rules which are in accordance with the Act.  Such rules can be mandatory or discretionary.

 

Clause 139 - Rules of organisations

 

5.5                     This clause specifies what must be contained in the rules of organisations.

 

5.6                     Subclause (1) makes provision in respect of the content of the rules of registered organisations. Paragraph (1)(a) specifies the organisation’s purposes and the conditions of eligibility for membership. Paragraph (1)(b) sets out various matters for which rules must make provision. Paragraph (1)(c) precludes rules preclude rules from providing for removal of elected officials otherwise than for committing specified offences or for ceasing to be eligible to hold office. Paragraph (1)(d) requires organisations to give applicants for membership written advice about their financial obligations as members, as well as how and in what circumstances they may resign.

 

5.7                     Subclause (3) provides that rules may provide for the eligibility of membership of independent contractors who, if they were employees, would be eligible to be members. The rules may also provide for any other matter (subclause (4) for example rules requiring candidates that for office are to be members of the organisation.

 

Clause 140 - General requirements for rules

 

5.8                     This clause specifies general requirements for the rules of organisations.  Subclause (1) provides that rules:

 

  • are not to be contrary to, or fail to make a provision required by a provision of, the Act, the WR Act the regulations or an award or order of the Commission or otherwise be contrary to law;

 

  • are not to prevent members from observing the law or an award or entering into written agreements in accordance with an award or order of the Commission;

 

  • are not to impose oppressive, unreasonable or unjust conditions upon members or applicants for membership, having regard to the objects of the Act and the purposes of registration; and

 

  • must not be discriminatory in their application to members or applicants for membership.

 

5.9                     Subclause (2) provides that the rules of an organisation are not taken to discriminate on the basis of age if the rules do not prevent an organisation from setting its membership dues by reference to rates of pay, even where the rates of pay are set by reference to a person’s age (e.g. junior rates of pay).

 

Division 2 - Rules relating to elections for office

 

Clause 141 - Rules to provide for elections for offices

 

5.10                 This clause specifies what election rules of registered organisations are to contain.  Subclause (1) requires that the rules must be designed to avoid election irregularities as far as possible and must specifically provide for:

 

  • election to office by a direct or collegiate voting system (these terms are defined in clause 6);

 

  • the conduct of every election for office by an independent returning officer and the duties of returning officers;

 

  • an opportunity for technically defective nominations to be corrected;

 

  • the manner by which persons may become candidates and declaration of the result of the election;

 

  • secret ballots, with provision for absentee voting, their  conduct and provision for scrutineers.

 

5.11                 Subclause (2) enables rules to provide for compulsory voting.

 

5.12                 The clause contains measures to prevent irregularities in elections, including a new requirement that the roll close at least 7 days (but no more than 30 days) before the opening of nominations for an election (subclause (3)). The requirement does not prevent changes after the roll for a ballot is closed for the purpose of correcting errors (subclause (6).

 

5.13                 Subclause (4) has the effect of applying the requirements of the clause to the rules of branches of organisations.

 

Clause 142 - Rules to provide for elections for office by secret postal vote.

 

5.14                 This clause sets out the requirements for elections by a direct voting system.

 

5.15                 Subclause (1) requires rules providing for elections by a direct voting system must provide for secret postal ballots.  (The term ‘postal ballot’ is defined in clause 6.)

 

5.16                 Subclause (2) enables an organisation to apply to the Industrial Registrar for an exemption from the postal ballot requirement.  Such an application must be accompanied by proposed rule alterations providing for the conduct of election by secret ballot other than a postal ballot.

 

5.17                 Subclause (3) empowers the Industrial Registrar to grant an exemption if satisfied that the proposed rule alterations will result in fuller participation by members in the proposed form of secret ballot than would result from a postal ballot.  The Registrar must also be satisfied that members will have an adequate opportunity to vote without intimidation.  The proposed rule alterations take effect when an exemption is granted (subclause (4)).

 

5.18                 Subclauses (5) and (6) provide that the exemption remains in force until revoked.  The Industrial Registrar can revoke an exemption:

 

  • at the request of the organisation, where the Registrar is satisfied that the rules meet the secret postal ballot requirements; or

 

  • if the Registrar ceases to be satisfied as to the conditions necessary for an exemption and has given the organisation and opportunity to show cause why the exemption should not be revoked (subclause (6)).

 

5.19                 Subclause (7) requires the Registrar to give an organisation an opportunity to be heard, other than where the exemption is revoke at the request of the organisation.

 

5.20                 Subclause (9) provides that no appeal lies from a decision of the Industrial Registrar (under section 81 of the WR Act) to grant an exemption from a postal ballot requirement.

 

5.21                 Subclause (10) applies the clause to branch elections as well as elections in the organisation.

 

Clause 143 - Rules to provide for terms of office

 

5.22                 This clause deals with the terms of office of persons elected to office within organisations and their branches.

 

5.23                 Subclause (1) requires the rules of an organisation to provide for terms of office for officers of no longer than 4 years without re-election.

 

5.24                 Subclauses (2) and (3) enable the rules of an organisation or branch to provide for extension of terms of office in order to synchronise elections, but not so that the term exceeds 5 years in total.

 

Clause 144 - Rules may provide for filling of casual vacancies

 

5.25                 This clause enables the rules to provide for the filling of casual vacancies either by an election or in another manner consistent with the requirements of the clause.

 

5.26                 However, the rules must provide for an election where the unexpired part of the term of the vacancy is more than 12 months or three quarters of the term of the office, whichever is greater (subclause (2)).

 

5.27                 Subclause (3) provides that a person who fills a casual vacancy in accordance with a procedure authorised under this clause is taken to have been elected for the purposes of the Act.

 

5.28                 Subclause (4) applies the clause to branch elections. Subclause (5) defines the relevant terms.

 

Clause 145 - Model rules for conduct of elections

 

5.29                 This clause provides for the issuing of guidelines setting out model rules for the conduct of organisations’ elections.

 

5.30                 The guidelines can be issued by the Minister (or the Electoral Commissioner if the Minister has delegated his power under this clause - see clause 322 ) by notice published in the Gazette and can be adopted by organisations in whole or in part, with or without modification.

 

Division 3 - Rules relating to conduct of officers and employees

 

Clause 146 - Model rules about conduct of officers and employees

 

5.31                 This clause provides for the issuing of guidelines setting out model rules about the conduct of officers and employees.

 

5.32                 Guidelines can be issued by the Minister by notice published in the Gazette and can be adopted by organisations in whole or in part, with or without modification.

 

Division 4 - Other rules

 

Subdivision A - Loans, grants and donations

 

Clause 147 - Rules to provide conditions for loans, grants and donations by organisations

 

5.33                 This clause sets out the conditions under which organisations may make loans, grants or donations.

 

5.34                 Subclause (1) requires the rules of an organisation or branch to provide that loans, grants or donations of more than $1000 may only be made if:

 

  • it has been approved by the relevant committee of management; and

 

  • the committee of management is satisfied that the payment is in accordance with the rules, and, in the case of a loan, there is adequate security and satisfactory repayment arrangements.

 

5.35                 This requirement does not apply to payments made by the organisation for out-of-pocket expenses incurred by persons for the benefit of the organisation or branch concerned (subclause (4)).

 

5.36                 Subclause (2) provides an exception to this requirement, by permitting the rules to enable the organisation to make loans, grants or donations of up to $3000 where the amount is for the purposes of relieving a member or member’s dependent from sever financial hardship. Any such loan is subject to subsequent approval by the committee of management. In deciding whether to approve such a loan, grant or donation, the committee of management must have regard to whether the payment was made under the rules and, in the case of a loan, whether there is adequate security and satisfactory repayment arrangements (subclause (3)).

 

5.37                 Subclauses (5) and (6) extend the operation of this clause to branches of organisations and members of such branches.

 

Subdivision B - Agreements between organisations and State unions

 

Clause 148 - Definitions

 

5.38                 This clause defines relevant terms for the purposes of this subdivision.

 

Clause 149 - Membership agreements

 

5.39                 This clause provides for membership agreements between organisations and unions registered under State laws. This enables members of a counterpart state union who would otherwise be ineligible to join the organisation to become members for the purpose of participating in the internal affairs of the federally registered union.  It does not enable the organisation to represent a state union member’s industrial interests under federal law, but there is provision for representing these members if they subsequently become eligible for membership under the organisation’s eligibility rules (subclauses (1), (6), (7).

 

5.40                 Subclause (2) requires a membership agreement to be lodged with the Industrial Registrar. The agreement comes into force when the Industrial Registrar enters particular of the agreement on the register kept under clause 11 (subclause (3)).

 

5.41                 The particulars are not to be entered until directed by the Commission (subclause (4)).  The Commission cannot make such an order until it is satisfied that the agreement is not contrary to:

 

  • any object of the Act or the WR Act;

 

  • any subsisting order made by the Commission about the organisation’s eligibility rules; or

 

  • any subsisting agreement or understanding that deals with the organisation’s entitlement to represent the industrial interests of a particular class or group of employees under federal workplace relations legislation;

 

5.42                 The Commission must also be satisfied that the membership agreement was entered into only:

 

  • to overcome legal or practical difficulties that could arise in relation to the participation of State union members in the administration of the organisation or the conduct of its affairs; or

 

  • to encourage and facilitate an amalgamation by the organisation and another organisation.

 

5.43                 Subclauses (8) to (12) provide for the termination of a membership agreement by the Commission.

 

Clause 150 - Assets and liabilities agreements

 

5.44                 This clause provide for agreements between organisations and State unions about assets and liabilities.

 

5.45                 Subclause (1) enables an organisation’s rules to provide for entry into agreements with State unions about management and control of assets and liabilities of the organisation and State union.

 

5.46                 Subclause (2) requires the agreement to be in the prescribed form.

 

5.47                 Under subclause (3), an asset and liability agreement must be lodged with the Industrial Registry and considered by the Commission.

 

5.48                 Subclause (6) provides that before the agreement can take effect, the Commission has to be satisfied that the agreement is:

 

  • not contrary to any object of the Act or the WR Act; and

 

  • does not adversely affect the interests of any lessor, lessee or creditor of either party to the agreement.

 

5.49                 If the Commission is satisfied of these matters, it can direct the Industrial Registrar to enter the particulars of the agreement in the register of organisations at which point the agreement comes into force (subclauses (4) and (5)).

 

Clause 151 - Party may apply to Federal Court for orders

 

5.50                 A party to an assets and liabilities agreement made under clause 150 may apply to the Federal Court for orders seeking compliance or resolving difficulties that have arisen with respect to the agreement.

 

5.51                 In dealing with an application, the Court may make such orders as it thinks fit, but must have regard to the interests of any lessor, lessee or creditor of either of the parties (subclauses 1) and (2)). 

 

5.52                 Subclause (3) ensures that any order made under subclause (1) has effect despite anything in the rules of the organisation or State union who are parties to the agreement.

 

Clause 152 - Termination of agreement

 

5.53                 This clause sets out how parties terminate an assets and liabilities agreement by entering into a ‘termination agreement’ and having it approved by the Federal Court.

 

5.54                 A ‘termination agreement’ must make appropriate provision for the management and control of the assets and liabilities after the termination (subclause (2)).

 

5.55                 Subclause (3) provides that in deciding whether or not there is ‘appropriate provision’, the Court must have regard to:

 

  • the positions of the parties in relation to their respective assets and liabilities before the agreement took effect;

 

  • the fairness of the manner in which the assets and liabilities acquired after the agreement will be dealt with after the termination of the agreement;

 

  • the way in which the interests of lessors, lessees or creditors of the parties will be affected by the termination; and

 

  • any other factor the Court considers relevant.

 

5.56                 If the Court approves the termination agreement, it must direct the Industrial Registrar to enter the particulars of the agreement and of any orders made by the Court in the register of organisations kept under clause 11 (subclause (4)).

 

5.57                 Subclause 6 provides that a termination agreement takes effect on the day specified by the Court, provided that day is not prior to the day the Court approved the agreement.

 

Subdivision C Miscellaneous

 

Clause 153 - Exercise of Commission’s powers under this Division

 

5.58                 This clause provides that the powers of the Commission under Division 4 of Part 2 of Chapter 5 must be exercised by a Presidential Member.

 

Division 5 - Alteration of rules and evidence of rules

 

Clause 154 - Industrial Registrar may determine alterations of rules

 

5.59                 This clause enables the Industrial Registrar to make alterations to an organisation’s rules to bring them into conformity with the requirements of the Act.  The organisation must be given an opportunity to be heard on the matter before any such alterations are made (subclause (1)).

 

5.60                 The alterations take effect on the date of the instrument making them (subclause (2)).

 

Clause 155 - Commission may determine alteration of rules where there has been a breach of an undertaking

 

5.61                 Subclause (1) enables the Commission to alter the rules of an organisation if the organisation has breached an undertaking to avoid demarcation disputes that was given when it was being registered.  The Commission can make such alterations that are necessary to remove the overlap between the organisation’s eligibility rules and the eligibility rules of another organisation.

 

5.62                 The organisation and the other organisation must be given an opportunity to be heard on the matter before alterations are made (subclause (2)). Alterations take effect on the date of the instrument making them (subclause (3)).

 

Clause 156 - Change of name or alteration of eligibility rules of organisation

 

5.63                 This clause sets out the procedure for changing the name of an organisation or altering its eligibility for membership rules. 

 

5.64                 Subclause (1) requires that the Commission consent in writing in order to any change to an organisation’s name or eligibility rules. (This provision does not apply to changes ordered by the Commission or that occur as a result of an amalgamation (subclause (10)).

 

5.65                 The Commission must not consent to a change in the name or the eligibility rules unless it has been made in accordance with the organisation’s rules and the proposed name is not the same as another organisation’s name or so similar as to cause confusion (subclauses (2) and (3)).

 

5.66                 In the case of proposed changes to an organisation’s eligibility rules, the Commission must not give consent if the people who would become eligible to be members as a result of the change could more conveniently belong to another organisation which could more effectively represent those members (subclause (4).  However, under subclause (5), this requirement does not apply if the Commission accepts an undertaking from the organisation seeking the alteration to avoid demarcation disputes that might otherwise arise.

 

5.67                 The Commission may refuse to consent to an eligibility rule alteration if satisfied that the change would contravene an agreement or understanding that deals with the organisation’s right to represent the industrial interests of a particular class or group of persons (subclause (6)).

 

5.68                 The Commission may also refuse consent if the alteration to eligibility rules would change the effect of any order made by the Commission under clause 130 of the Act (orders about representation rights of organisations of employees) and there would be a serious risk of a demarcation dispute affecting the performance of work in an industry or harm the business of an employer (subclause (7)).

 

5.69                 The grounds for refusal of eligibility rule changes in subclauses (6) and (7) are not exhaustive (subclause (8)).  Rule changes come into effect on the date of Commission consents or another date set down by the Commission.

 

Clause 157 - Alteration of other rules of organisation

 

5.70                 This clause provides for the alteration of rules, other than eligibility rules, on certification by a Registrar that the alteration complies with and is not contrary to the Act, the WR Act, awards, certified agreements and old IR agreements, is not otherwise contrary to law and has been made under the rules of an organisation.

 

5.71                 Subclause (2) also enables a Registrar, with the consent of the organisation to amend the alteration of rules (other than eligibility rules) to correct typographical, clerical or formal errors.

 

5.72                 This clause does not apply to certain rule alterations which are specifically listed in subclause (4) relating to amalgamations, secret postal ballots, and rule changes initiated by the Registrar or made in pursuance of an order of the Federal Court.

 

5.73                 Rule changes come into effect on the day they are certified by the Registrar (subclause (3)).

 

Clause 158 - Certain alterations of rules to be recorded

 

5.74                 This clause provides that details of changes in the name or an organisation or alterations of the eligibility rules must be entered into the register of organisations and the organisation’s certificate of registration amended accordingly.

 

Clause 159 - Evidence of rules

 

5.75                 This clause provides that a copy of an organisation’s rules certified by a Registrar is evidence of the rules of the organisation in proceedings under the Bill or the WR Act.

 

Clause 160 - Powers of Commission

 

5.76                  This clause provides that under this Division the powers of the Commission must be exercised by a Presidential Member.

 

Part 3 - Validity and performance of rules

 

Clause 161 - Rules contravening section 1 40

 

5.77                 This clause establishes a framework for a member to apply to the Court in relation to rules that contravene clause 140 and enables the Court to make orders declaring that rules (in whole or in part, or in a particular respect) contravene the requirements of the Act, rendering them void. The Court has the discretion to adjourn proceedings to enable the organisation to alter its rules (subclause (5)).

 

5.78                 An application under this provision can be made by a member or, in the case of an on the grounds that the organisation’s rules are oppressive unreasonable or unjust or discriminatory in contravention of paragraphs 140(c) and (d), an applicant for membership (subclauses (3) and (4)).

 

5.79                 Subclause (4) provides that an organisation must be given the opportunity to be heard in relation to an application under this provision.

 

5.80                 Under subclause (5), if the Court makes an order declaring that a rule contravenes clause 140, the rule is void from the date of the declaration. 

 

5.81                 Once an order has been made, an organisation has 3 months to change the relevant rule or rules so that it is brought into conformity with clause 140. This period may be extended (subclause (8)). If this is not done, the rules will be altered by the Industrial Registrar or, in the case of eligibility rules, a Presidential Member of the Commission (subclause (7)).

 

5.82                 Under subclause (10) the Court may make such interim orders that it considers appropriate in relation to proceedings taken under this clause (see subclauses (1) and (11)).

 

5.83                 Subclauses (12) and (13) define relevant terms.

 

Clause 162 - Directions for performance of rules

 

5.84                 This clause enables members to apply to the Court for an order directing a person to perform or observe rules.

 

5.85                 Subclauses (3) and (4) provide that the Court has a discretion to:

 

  • refuse to deal with an application unless it is satisfied that all reasonable steps have been taken to have the issue resolved within the organisation; or

 

  • make interim orders that it considers appropriate.

 

5.86                 Under subclause (6), the Court cannot make an order under this clause that would invalidate an election. (This is because Chapter 7 provides the avenue for getting orders from the Court declaring elections invalid).

 

5.87                 When dealing with a matter under this clause, the Court may, if it finds a rule contravenes clause 140, issue a declaration to that effect (subclauses (7)). Clause 161 (other than subclauses (1) to (4)) applies in relation to such an order (subclause (8)).

 

5.88                 Subclause (9) defines relevant terms.

 

 



 

CHAPTER 6 - MEMBERSHIP OF ORGANISATIONS

 

6.1                     Chapter 6 sets out rules about membership of organisations, including entitlement to membership and the circumstances in which a person may cease to be a member.  It also sets out the role of the Federal Court in deciding a person’s membership status.

 

6.2                     This Chapter generally reflects Division 9 of Part IX of the WR Act.

 

Part 1 - Simplified outline of chapter

 

Clause 163 - Simplified outline

 

6.3                     This clause provides an outline of the contents of the chapter.

 

Part 2 - Entitlement to membership

 

Clause 164 - Entitlement to membership of organisations

 

6.4                     This clause sets out the entitlement of persons to become and to remain a member of an organisation.

 

6.5                     Subclauses (1) and (2) establish an entitlement to membership of organisations of employees on payment of the relevant fee, provided that the person seeking membership is eligible under the organisations rules to join. This right is subject to a “bad character” qualification.

 

6.6                     A person admitted to membership is entitled to remain a member so long as they comply with the rules of the organisation; however, they are not entitled to remain a member if they cease to be eligible to become a member unless the organisation’s rules do permit this.

 

6.7                     Subclause (3) extends entitlement to membership to persons qualified to be employees and persons who are seeking employment for the first time in an occupation, industry or enterprise covered by the organisation’s eligibility rule.

 

6.8                     Subclauses (4) and (5) deal with entitlements to membership of organisations of employers.

 

6.9                     An employer is not able to remain a member if they cease to be eligible to become a member and the rules of the organisation do not permit the employer to remain a member. 

 

6.10                 The entitlement to membership established by this clause (see subclauses (1) and (4)) overrides inconsistent rules, except to the extent that they expressly require compliance with those rules.

 

Clause 165 - Federal Court may declare on person’s entitlement to membership

 

6.11                 This clause enables the Court to make declarations in relation to a person’s entitlement to membership.  Subclause (1) enables a person or organisation to apply to the Court for a declaration as to the entitlement of the person to become or remain a member of the organisation

 

Clause 166 - Application for membership of organisation by person treated as having been a member

 

6.12                 This clause applies to people who are eligible for membership, have applied to become a member and have, within the month before the application, acted in good faith as, and been treated by the organisation as, a member.

 

6.13                 The clause provides that such people are entitled to be admitted to membership and treated as if they had been a member during the whole of the time when they acted as and were treated as a member and inclusive of the time from their application to admission as a member.

 

Clause 167 - Request by member for statement of membership

 

6.14                 This clause requires an organisation to provide a statement detailing a member’s membership information within 28 days of a request from the member.

 

Clause 168 - Rectification of register of members

 

6.15                 This clause enables the Court when dealing with a matter under the Act or the WR Act to order rectification of an organisation’s register of members where this is necessary.

 

Part 3 - Termination of membership

 

Clause 169      Federal Court may order that persons cease to be members of organisations

 

6.16                 This clause enables the Court, on application of an organisation, to order that a person’s membership ceases from a specified day, for a specified period.

 

Clause 170 - Non-financial members to be removed from the register

 

6.17                 This clause establishes a new requirement that, if a person who is obliged by the rules of the organisation to pay membership dues has not paid those dues for a continuous period of 24 months, the organisation must remove the person’s details from its register of members within 12 months from the end of the 24 month period.

 

6.18                 Any period where the member was not required under the rules of the organisation to pay dues is to be disregarded in calculating the continuous period (subclause (2)).

 

6.19                 Subclause (3) provides that a person whose name is removed from the register in this way cases to be a member on the day the name is removed, in spite of anything in the rules of the organisation.

 

Clause 171 - No entrance fee if person re-joins within 6 months

 

6.20                 This clause operates with respect to people who apply for membership of an organisation within 6 months after their membership ceased under clause 170.  It provides that an organisation must not require such people to pay any entrance fee associated with a new membership.  This provision does not affect an organisation’s ability to require that such people pay outstanding dues in order to maintain continuity of financial membership.

 

Clause 172 - Resignation from membership

 

6.21                 This clause sets out how a person may resign from an organisation.  It supplements clause 139, which requires that rules of organisations provide for resignation.

 

6.22                 Subclauses (1) and (2) provide that a resignation must be in writing and stipulates when it takes effect:

 

  • in the case of where a member ceases to be eligible to become a member, from the day the notice is received or the date specified in the notice, which ever is later;
  • in all other cases, at the end of two weeks or such shorter period specified in the rules or the date specified in the notice, whichever is later.

 

6.23                 The note to subclause (1) makes clear that a notice of resignation can be given electronically, if the organisations’ rules allow for this. 

 

6.24                 Subclause (3) allows an organisation to sue for any dues payable but paid by the former member in relation to the period before the resignation took effect. (This right is subject to clause 176).

 

6.25                 Subclauses (4) and (5) deal with technical issues in relation to the receipt of a notice of resignation.  Subclause (6) deems a notice of resignation to be valid notwithstanding any procedural defect, if accepted by the organisation.

 

6.26                 A note to this clause directs readers to clause 338, which allows regulations to be made to require employers who offer payroll deduction facilities to inform employees that cessation of payroll deductions by an employee doe not constitute resignation

 

Part 4 - False information, disputes and arrears of dues

 

Clause 173 - False representation as to membership of organisation

 

6.27                 This clause prohibits a person from knowingly or recklessly making a false or misleading statement about the person’s membership of an organisation in an application made under this Act or the WR Act.

 

Clause 174 - False representation about resignation from organisation

 

6.28                 This clause prohibits a person from knowingly or recklessly giving false or misleading information about resignation from an organisation.  This is a civil penalty provisions.

 

Clause 175 - Disputes between organisations and members

 

6.29                 This clause provides that a dispute between an organisation and any of its members is to be decided under the organisation’s rules.

 

6.30                 Subclauses (2) and (3) provide that any money payable to an organisation may be sued for and recovered as a debt due to the organisation and that a Court can order the payment by a member of a contribution not exceeding $20 to a penalty incurred or money payable by the organisation under an award, order, certified agreement or old IR agreement.

 

Clause 176 - Recovery of arrears

 

6.31                 This clause prevents an organisation from taking legal action to recover outstanding membership dues after 12 months from the day on which the amount became payable.

 

Clause 177 - Liability for arrears

 

6.32                 This clause provides that in an action by an organisation to recover outstanding membership dues for a period, it is a defence that the person:

 

  • had ceased to be eligible to become a member of the organisation; and

 

  • has not actively participating in the affairs of the organisation since that time.

 

6.33                 Where the defence is successful, the person is taken to have ceased to be a member for the day the time the person ceased to eligible for membership.

 

Part 5 - Conscientious objection to membership

 

Clause 178 - Conscientious objection to membership of organisations

 

6.34                 Clause 178 enables a person to apply to a Registrar for a conscientious objection certificate.

 

6.35                 Subclause (1) provides that the Registrar issue a certificate if satisfied that the person’s conscientious beliefs do not allow them to be a member of an employer or employee association and the person pays the prescribed fee.  The prescribed fee is the annual subscription that the person would pay if they became a member of the association they were eligible to join.

 

6.36                 A decision by the Registrar under this clause is not subject to appeal to the Commission (subclause (2)).

 

6.37                 A certificate remains in force for the period (of not more than 12 months) specified in the certificate, but may be renewed (subclause (3)).

 

6.38                 Subclause (5) enables the Registrar to revoke a certificate in limited circumstances.

 

6.39                 Subclause (6) defines terms used in this clause.

 

 



 

CHAPTER 7 - DEMOCRATIC CONTROL

 

7.1                     This Chapter deals with the conduct of elections for offices and for other positions in organisations, and for inquiries by the Federal Court into elections.  It also contains rules concerning disqualification from office.  All of the provisions in this Chapter reflect Divisions 4, 5 and 6 of Part IX and relevant offences in Part XI of the WR Act.  However, there are also new provisions reflecting the recommendations of the 1997 report by the Joint Senate Standing Committee on Electoral Matters relating to industrial elections.

 

Part 1 - Simplified outline of Chapter

 

Clause 179 - Simplified Outline of Chapter

 

7.2                     This clause provides a simplified outline of the chapter.

 

Part 2 - Conduct of elections for office and other positions

 

Clause 180 - Conduct by AEC

 

7.3                     This clause requires all elections for office within an organisation or branch to be conducted by the Australian Electoral Commission (AEC).  It provides that the Commonwealth bears the cost of conducting each election for office in an organisation or a branch of an organisation. This reflects subsection 215(4) of the Workplace Relations Act 1996

 

7.4                     Where an organisation has been granted an exemption under clause 184 the requirement of subclause (1) is not to apply (subclause (2)).

 

7.4 7.5                     Subclause (3) requires the AEC to conduct elections for positions other than for offices where the organisation has made a request under clause 185.

 

Clause 181 - Application for organisation or branch to conduct its elections for office

 

7.5 7.6                     This clause allows an organisation or branch to make an application to be granted an exemption from the requirement that the AEC conduct elections for offices, and sets out the preconditions and processes for making the application.

 

Clause 182 - Objections to application to conduct elections for office

 

7.6 7.7                     This clause provides that a member of an organisation or branch, that has made application for an exemption under clause 181, may make objections to that application.

 

Clause 183 - Threats in relation to section 182 objections

 

7.7 7.8                     This clause provides new offences relating to the lodging of objections under clause 182.  The offences are consistent with Commonwealth criminal law policy.

 

7.8 7.9                     It is an offence to use, cause, inflict or procure violence, injury, punishment, damage, loss or disadvantage to a person who has lodged an objection under clause 182 (subclause (1)), without lawful authority or excuse.

 

7.9 7.10                 Paragraph (2)(a) prohibits offers or promises of property or other benefit intended to influence or affect a person, because the person has or intends to lodge an objection.

 

7.10 7.11                 Paragraph (2)(b) prohibits a person from asking or obtaining, or offering or agreeing to ask for or obtain any property or other benefit, on the understanding that the lodging will be influenced or affected.

 

7.11 7.12                 The maximum penalty for offences under this clause is 30 penalty units.

 

Clause 184 - Registrar may permit organisation or branch to conduct its elections for office.

 

7.12 7.13                 This clause sets out the criteria for granting an exemption from the requirement that the AEC conduct elections and the circumstances in which it may be revoked.

 

7.13 7.14                 This clause  provides that a Registrar may allow an organisation or branch to conduct its own elections for office where, after any objections to the application have been heard, the Registrar is satisfied that:

 

  • the rules of the organisation concerning elections for office comply with the Act ; and

 

  • if granted the exemption, the organisation will conduct the election in accordance with those rules and the Act and in a manner that allow members to vote without intimidation. 

 

7.14 7.15                 Such exemption may be granted in relation to election for a particular office or in relation to elections for an organisation or a branch generally.

 

7.15 7.16                 Subclause (2) provides that an exemption may be revoked by a Registrar on application by the committee of management of an organisation, or on Registrar’s own motion, if the Registrar is no longer satisfied that the criteria outlined above are being met.  Before revoking an exemption, the Registrar must give the organisation’s committee of management an opportunity to show cause why the exemption should not be revoked.

 

Clause 185 - Organisation may ask AEC to conduct elections for positions other than offices

 

7.16 7.17                 This clause is a new provision which allows an organisation to make a written request to the AEC to conduct an election for a position other than an office where the organisation’s rules require an election to be held for such a position. 

 

7.17 7.18                 Reference should be made to the 1997 report by the Joint Senate Standing Committee on Electoral Matters relating to industrial elections.

 

Clause 186 - Declaration envelopes to be used for postal ballots

 

7.18 7.19                 This clause provides, in relation for elections for office that are conducted by postal ballot, that a vote in an election will not be counted unless a declaration envelopes in the approved form is used.  This is a new requirement.

 

Clause 187 - Registrar to arrange for conduct of elections

 

7.19 7.20                 This clause requires a Registrar to arrange for the conduct of elections by the AEC once an organisation has lodged the prescribed information relating to the elections with the Industrial Registry. 

 

7.20 7.21                 Before arranging for the conduct of elections by the AEC, the Registrar must be satisfied that an election is required to be held under the rules of the organisations and, where the election is for a position other than office, the organisation has made a request under clause 185.

 

Clause 188 - Organisation or branch must not assist one candidate over another

 

7.21 7.22                 This clause provides a new offence in relation to the use of organisational resources.  It is to be an offence for an organisation or branch to use, or allow to be used, its property or resources to help a candidate against another candidate in an election for office or other position under Part 2 of this Chapter.

 

7.22 7.23                 The maximum penalty for such an offence is 100 penalty units.

 

Clause 189 - Organisation to provide returning officer with copy of register

 

7.23 7.24                 This clause makes it an offence for an officer or an employee of an organisation or branch to fail to comply with a request from a returning officer for a copy of the organisation’s register. (It is a defence if that person complied with the request as promptly as he or she was able (subclause (2)).

 

7.24 7.25                 The request must specify the time within which the register must be made available, which must not be less than 7 days (subclause (4)). 

 

7.25 7.26                 If a register, or the relevant part, is kept electronically, the returning officer may require that it be produced in that form (subclause (3)).

 

Clause 190 - Declaration be secretary etc. of organisation

 

7.26 7.27                 Where a request is made under clause 189, this clause obliges the secretary (or other prescribed officer) of an organisation to make and provide, to the Registry, a declaration that the register has been maintained as required by subclause 219(2). 

 

7.27 7.28                 The declaration must be in writing and provided to the Industrial Registry no later than the day before voting in the relevant election commences (subclause (2)).

 

7.28 7.29                 Subclause (3) makes it an offence for a person to make a statement in the declaration that is false or misleading.

 

7.29 7.30                 This clause imposes a new requirement.

 

Clause 191 - Provisions applicable to elections conducted by AEC

 

7.30 7.31                 This clause requires an electoral official (defined in clause 6 as an Australian Electoral Officer or a staff member of the AEC), in conducting an election for office or other position, to comply with the rules of an organisation or branch, but provides that the electoral official may, in spite of the rules, take such action as necessary to ensure that no irregularities occur in relation to the election, or in order to remedy any procedural defects that appear to exist in the rules. 

 

7.31 7.32                 Subclause (2) makes it an offence for a person to fail to comply with a direction given by an electoral official under subclause (1).

 

7.32 7.33                 Subclause (2C) provides that the strict liability offence in subclause (2) is subject to a reasonable excuse defence. In accordance with drafting practice, a legislative note would make it clear that the defendant bears the evidentiary burden with respect to the defence.

 

7.33 7.34                 Subclause (3) provides that an action taken or done in compliance with a direction under subclause (1) is not invalid merely because it results in a breach of the rules of the organisation or branch.  Subclause (4) requires the AEC to arrange for the completion of an election where an electoral official dies or ceases to be qualified to conduct the election. 

 

7.34 7.35                 With the exception of subclauses (2) and (2C), this clause is similar to section 215 of the WR Act, but extends the application of the provision to elections for positions other than office where they are conducted by the AEC.  Subclause (2) would have a similar effect as section 313 of the WR Act.  Subclause (2C) is new.

 

Clause 192 - Hindering or obstructing electoral official or other person

 

7.35 7.36                 This clause provides that it is an offence to hinder or obstruct an electoral official, in the performance of their functions, or a person in complying with a direction under subclause 191(1).

 

Clause 193 - Improper interference with election process

 

7.36 7.37                 This clause provides for a number of offences in relation to interference with an election process.

 

7.37 7.38                 Subclause (2) relates to interference with ballot papers. 

 

7.38 7.39                 Subclause (3) makes it an offence to make threats in relation to a person’s candidature or voting intention.

 

7.39 7.40                 Subclauses (4) and (5) are new provisions, which prohibit the offer or acceptance of bribes to influence a candidate to withdraw as a candidate, their voting preference or support for any candidate of a person.  The prohibition is consistent with Commonwealth criminal law policy and the Commonwealth Electoral Act 1918 .

 

7.40 7.41                 Subclause (6) prohibits a person from requiring or inducing another to allow them to see a ballot paper, or to show another person or permit another person to have access to a ballot paper otherwise than in the performance of duties for the purpose of the election. 

 

7.41 7.42                 The maximum penalty for offence under this clause is 100 penalty units.

 

Clause 194 - Death of candidate

 

7.42 7.43                 This clause provides for the discontinuation of an election where a candidate nominated for election has died.

 

Clause 195 - Post-election report by AEC

Clause 196 - Organisation to respond to adverse report on rules

 

7.43 7.44                 Clause 195 requires the AEC to provide a post-election report detailing prescribed matters.  The report must be provided to the organisation or branch concerned and to the Industrial Registrar.  If the AEC was of the view that a particular rule that is difficult to interpret or apply it must note that fact in the report (subclause (4))

 

7.44 7.45                 The AEC is also required to include in a post-election report, observations about unusually large proportions of members addresses that are not current or are workplace addresses.  Any relevant model rules that may assist the organisation or branch address these matters must be highlighted.

 

7.45 7.46                 Subclause 196(1) requires an organisation to provide the AEC with a written response within 30 days of being given a report which identified rules that were difficult to apply.  The organisation is required to make a copy of the response and the relevant extract of the AEC report available to members. 

 

7.46 7.47                 Whilst not limiting the ways in which an organisation can satisfy this requirement, subclause 195(5) provides that an organisation complies with the requirement if it lodges, with the Registry:

 

  • a copy of the relevant extract of the report together with a declaration undertaking to provide a copy of the extract and the response to any member on request, or

 

  • the organisation gives notice in the next edition of the organisation’s journal, or in an appropriate newspaper article, that a copy of the extract and the response is available on request free of charge to all members. 

 

7.47 7.48                 Subclause (8) imposes civil penalties in relation to knowingly or recklessly making false or misleading statements in such a declaration.

 

Clause 197 - Ballot papers etc. to be preserved

 

7.48 7.49                 Subclauses (1) and (2) require an organisation or branch and the AEC (or the organisation where it has an exemption to conduct its own election) to keep documents, including ballot papers, relevant to an election for office for one year after the completion of the election.

 

7.49 7.50                 Contravention of these requirements by an organisation (or branch) or its officers or employees is a strict liability offence (subclauses (3) and (4)). Subclauses (3A) and (4A) provide that these offences are subject to a reasonable excuse defence. In accordance with drafting practice, a legislative notes would make it clear that the defendant bears the evidentiary burden with respect to the defence.

 

7.50 7.51                 Contravention by an organisation or a branch carries a maximum penalty of 100 penalty units; contravention by an officer of employee of an organisation or branch carries a maximum penalty of 20 penalty units.

 

7.51 7.52                 The clause is similar to section 271 (in relation to the offence elements) and section 314 of the WR Act. The defences in subclauses (3A) and (4A) are new.

 

Part 3 - Inquiries into elections

 

Clause 198 - Application for inquiry

 

7.52 7.53                 Subclause (1) provides that a member of an organisation, who claims there has been an irregularity in relation to an election for office, may make application for the Federal Court to inquire into the matter (an inclusive definition ‘irregularity’ is provided in clause 6).

 

7.53 7.54                 Subclause (2) requires the Electoral Commissioner to apply for an inquiry where the outcome of an election for office is believed to have been effected by an irregularity. 

 

7.54 7.55                 Subclause (3) provides that the Electoral Commission may make application of an inquiry if it is believed that an irregularity in relation to an election for office may have occurred.

 

7.55 7.56                 Subclause (1) is similar to section 218 of the WR Act.  Subclauses (2) and (3) are new provisions reflecting the  recommendations from the 1997 report by the Joint Senate Standing Committee on Electoral Matters relating to industrial elections.

 

Clause 199 - Institution of inquiry

 

7.56 7.57                 This clause deals with the instituting of inquiries.

 

Clause 200 - Federal Court may authorise Industrial Registrar to take certain action

 

7.57 7.58                 This clause permits the Federal Court to authorise the Industrial Registrar to take certain actions where an application for an inquiry has been made under clause 198 (subclauses (1) and (2)).  Before making such an order, the Court may give an interested person an opportunity to object (subclause (3)). 

 

7.58 7.59                 It also contains provisions consistent with Commonwealth criminal law policy concerning requirements for the provision of documents and protection from self-incrimination (subclauses (6) and (7)).

 

7.59 7.60                 Subclause (5) makes it an offence to contravene a requirement made under subclause (2) (which sets out the actions the Registrar can be authorised to take) or to obstruct the Registrar or a person acting on the Registrar’s behalf, in the performance of their duties.

 

7.60 7.61                 Subclause (5B) provides that the offence in paragraph (5)(a) is subject to a reasonable excuse defence. In accordance with drafting practice, a legislative note would make it clear that the defendant bears the evidentiary burden with respect to the defence.

 

Clause 201 - Designated Registry officials must have identity cards

 

7.61 7.62                 This clause is a new provision which is intended to reflect Commonwealth law policy in relation to right of entry to premises.  This clause requires identity cards to be issued by the Industrial Registrar to designated registry officials for use in respect of actions taken under clause 200. 

 

7.62 7.63                 It is an offence to fail to return an identity card upon ceasing to be a registry official ( a maximum penalty of 1 penalty unit is provided (subclause (6)).

 

7.63 7.64                 This is a strict liability offence, but it is a defence if the card was lost or destroyed (subclause (7) and (8)).

 

Clause 202 - Interim orders

 

7.64 7.65                 This clause specifies the types of interim orders that can be made by the Federal Court where an inquiry into an election has been instituted.

 

Clause 203 - Procedure at hearing

 

7.65 7.66                 This clause requires the Federal Court to permit all persons with an interest in the inquiry to appear at the inquiry.  This clause also provides for the procedure of the court in relation to election inquires.

 

Clause 204 - Action by Federal Court

 

7.66 7.67                 This clause details the actions that can be taken by the Federal Court in the course of conducting an inquiry and in the event of finding that an irregularity has occurred.  Orders that can be made, in the case of an irregularity are:

 

  • ordering a fresh election

 

  • ordering that a step in an election be taken again (where the election is yet to be completed)

 

  • orders in the relation to the holding of office pending fresh elections

 

Clause 205 - Industrial Registrar to make arrangements for conduct of elections etc.

 

7.67 7.68                 This clause requires the Industrial Registrar to take steps necessary in relation to an election or for the conduct of an election, where the Court makes an order for a new election under clause 204.

 

Clause 206 - Enforcement of orders

 

7.68 7.69                 This clause provides the Court with the power to grant injunctions as necessary, for the effective performance of its functions and enforcement of orders under Part 3.

 

Clause 207 - Validity of certain acts etc. where election declared void

 

7.69 7.70                 This clause enables the Court to declare certain acts to be valid, despite having declared void the election of the person who did those acts.

 

Part 4 - Disqualification from office

 

7.70 7.71                 Subject to minor changes, the provisions in this Part reflect Division 6 of Part IX of the WR Act.

 

Clause 208 - Simplified outline of this Part

 

7.71 7.72                 This clause provides a simplified outline of the contents of Part 4 of the Chapter (which relates to the disqualification from office).

 

Clause 209 - Meaning of prescribed offence

 

7.72 7.73                 This clause provides a definition of the term ‘prescribed offence’.

 

Clause 210 - Meaning of convicted of a prescribed offence

 

7.73 7.74                 This clause provides a definition of the phrase ‘convicted of a prescribed offence’ which limits, in relation to certain offences, the circumstances in which conviction provides a basis fro disqualification from holding an office in an organisation.

 

Clause 211 - Certificate of registrar etc. is evidence of facts

 

7.74 7.75                 This clause provides that for the purpose of applications under this Part:

 

  • certificates issued by court registrars are evidence of conviction or acquittal, or

 

  • certificates issued by an officer in charge of a prison are evidence of release dates.

 

Clause 212 - Certain persons disqualified from holding office in organisations

 

7.75 7.76                 This clause deals with the eligibility of a person convicted of a prescribed offence to stand for election to an office or to hold an office in an organisation.

 

7.76 7.77                 Subclause (1) provides that a person who has been convicted of a prescribed offence may not seek election to, or be elected or appointed to, an office unless:

 

·         a period of 5 years has elapsed since the person’s conviction or release from imprisonment for the prescribed offence;

 

·         the person has been granted “leave to hold office in organisations” by the Federal Court under this Division, or, where the person has been refused such leave but disqualified for less than 5 years, the shorter period of disqualification has elapsed since the person’s conviction or release from imprisonment for the prescribed offence.

 

7.77 7.78                 Subclause (2) provides that an office holder convicted of a prescribed office ceases to hold office 28 days from the date of the conviction, unless the person applies to the Court under this Division within that 28 day period.

 

7.78 7.79                 Subclause (3) provides that where an application is made to the Court by an office holder and the application is not determined by the Court within 3 months, or such extended period as allowed by the Court, the office holder shall thereupon cease to hold office.

 

7.79 7.80                 Subclause (4) sets out the conditions applying to extensions of time to enable an office holder to continue to hold office while the Court deals with an application.

 

7.80 7.81                 Subclause (5) gives an organisation, a member of an organisation, and the Industrial Registrar the right to apply to the Court for a declaration as to whether or not a person is disqualified from being a candidate for election, being elected or appointed to office or from continuing in office.

 

7.81 7.82                 Subclause (6) makes it clear that the granting of leave under this Division does not affect the person’s disqualification as a result of another conviction for a prescribed office in respect of which no application has been made to the Court for leave or, where it has, leave has been refused.

 

Clause 213 - Application for leave to hold office in organisations by prospective candidate for office

 

7.82 7.83                 This clause deals with applications to the Federal Court by persons convicted of a prescribed offence for leave to stand for election, or to be appointed, to an office in an organisation.

 

7.83 7.84                 Under subclause (1), a person who wants to be a candidate for election or to be appointed to an office but who has been convicted of a prescribed offence or released from imprisonment in respect of that conviction within the preceding 5 years, may apply to the Court for leave to hold office in organisations.

 

7.84 7.85                 Subclause (2) empowers the Court to grant an application, to refuse it, or, in the case of a refusal, to specify a shorter period of disqualification.

 

7.85 7.86                 Subclause (3) provides that the holder of an office who has been convicted of a prescribed offence and who has been refused leave to continue to hold office shall thereupon cease to hold office.

 

7.86 7.87                 Subclause (4) provides that an application to the Court may only be made where the applicant has not, in relation to that conviction, already applied for leave to hold office in organisations.

 

Clause 214 - Application for leave to hold office in organisations by office holder

 

7.87 7.88                 This clause provides for applications to be made to the Federal Court for leave to continue in office by officer holders convicted of a prescribed offence.

 

Clause 215 - Federal Court to have regard to certain matters

 

7.88 7.89                 This clause sets out the matters which the Federal Court must have regard to for the purposes of exercising its power to grant leave to stand for office or continue to hold office.

 

Clause 216 - Action by Federal Court

 

7.89 7.90                 The Federal Court may make such orders as it considers appropriate to give effect to declarations made under clause 212 (subclause (1).  Subclauses (2) and (3) deal with the right of persons and organisation to be heard in proceedings under this Part.

 

Clause 217 - Part not to affect spent convictions scheme

 

7.90 7.91                 This clause preserves the operation of Part VIIC of the Crimes Act 1914 , which includes provisions relieving persons from disclosing spent convictions.

 



Chapter 8 - Records, accounts and conduct of officers

 

8.1                     Chapter 8 deals with the record keeping obligations of organisations (Part 2); sets out the financial accounting, auditing and reporting requirements placed on organisations (Part 3); and provides specific statutory duties for officers and employees of organisations (Part 4).

 

8.2                     Subject to some changes, the provisions in this Chapter reflect Divisions 10 and 11 of Part IX of the WR Act.  Relevant offences in Part XI of the WR Act have been integrated into this Chapter.

 

8.3                     Consistent with the general approach of the Act, which reflects Commonwealth criminal law policy, obligations that attract criminal sanction under the WR Act are to be converted to civil penalty provisions.  Provisions dealing with the production of documents have been drafted in accordance with Commonwealth criminal law policy in relation to protection against self-incrimination.

 

Part 1 - Simplified outline of Chapter

 

Clause 218 - Simplified outline

 

8.4                     This clause provides an outline of the content of each Part of Chapter 8

 

Part 2 - Records to be kept and lodged by organisations

 

Clause 219 - Records to be kept and lodged by organisations

 

8.5                     This clause sets out the record-keeping obligations of organisations.

 

8.6                     Subclause (1) requires an organisation to keep a register of members, a list of positions of office in the organisation and its branches, a list containing certain information about the holders of those offices, and other records as prescribed by the Regulations.

 

8.7                     Subclause (2) requires an organisation to update its register of members as changes in membership occur.

 

Clause 220 - Certain records to be held for 7 years

 

8.8                     This clause would impose an obligation on an organisation to maintain copies of its membership register. 

 

8.9                     Subclause (1) would require an organisation to retain a copy of its membership register as it stood at 31 December each year for a period of 7 years. 

 

8.10                 Subclause (2) further provides that the Regulations can require an organisation to keep a copy of a register, or part of a register, as it stood on a prescribed day, for seven years following the prescribed day. 

 

8.11                 Both subclauses are civil penalty provisions.

 

Clause 221 - Offence to interfere with register or copy

 

8.12                 This clause would make it an offence to intentionally interfere with the register of members kept under clause 219, or with the copies kept under  clause 220.

 

Clause 222 - Obligation to lodge information in Industrial Registry

 

8.13                 This clause sets out the obligations upon organisations to lodge certain records with the Industrial Registry each year.

 

Clause 223 - Storage of records

 

8.14                 This clause requires organisations and their branches to keep their records at their offices unless a Registrar grants permission for them to be kept elsewhere. 

 

Clause 224 - Registrar may authorise access to certain records

 

8.15                 This clause would permit a person authorised by a Registrar to inspect and make copies of, or extracts from, the register of members (subclause (1)), and requires an organisation to make its register of members available for that purpose (subclause (2)).  The register may be made available in a form agreed with the authorised person (subclause (3)) - this would allow an organisation to provide its membership register in electronic format if this is agreed with the authorised person.

 

8.16                 Subclause (2) is a civil penalty provision

 

Clause 225 - Registrar may direct organisation to deliver copy of records

 

8.17                 Subclause (1) allows a Registrar to direct an organisation to deliver a certified copy of its register of members to the Registrar, if satisfied that a member has been refused access to the register of members or that there are other grounds for giving a direction under this subclause.  (The copy must be certified as a correct statement of the organisation’s membership as at not more than 28 days before the day the register is required to be delivered to the Registrar.)

 

8.18                 Subclause (2) is a civil penalty provision that provides that the Registrar may direct an organisation, where a member has made application, to deliver to the Registrar a copy of the copy of records that an organisation is required to keep under clause 220.  In making the direction, the Registrar must be satisfied that the member has been refused access to the copy of the copy, and that the member has reasonable grounds for seeking access to the copy. 

 

8.19                 Subclause (3) requires the direction of a Registrar to be in writing and to specify a time period for delivery of the relevant copy of not less that 14 days after the direction was given.

 

8.20                 Subclause (4) provides that the copy of a record delivered in accordance with a direction under either of subclauses (1) or (2) may be in hard copy  form, or (if the Registrar agrees) in electronic form.

 

8.21                 Subclause (5) allows the Registrar to provide a member of the organisation with a copy of the document provided, if he or she considers this appropriate in the circumstances.

 

8.22                 Subclause (1) is a civil penalty provision.

 

Clause 226 - Organisations to notify particulars of loans, grants and donations

 

8.23                 This clause sets out lodgement requirements in relation to details of loans, grants and donations over $1,000.

 

8.24                 An organisation must lodge a statement detailing each loan, grants and donations over $1000 in the Industrial Registry within 90 days after the end of each financial year (subclause (1)).  The statement must be signed by an officer (subclause (2)) and cannot contain false or misleading statements (subclause (3)).  This is a civil penalty provision.

 

8.25                 Subclause (5) and (6) set out the relevant particulars that must be included in the statement.

 

Part 3 - Accounts and audit

 

8.26                 This Part prescribes the financial accounting and auditing requirements that organisations are to comply with, and is divided into 7 divisions.

 

Division 1 - Preliminary

 

Clause 227 - Simplified outline

 

8.27                 This clause provides an outline of each of the 7 divisions comprising Part 3.

 

Clause 228 - Part only applies to financial years starting after registration

 

8.28                 This clause provides that the financial accounting obligations of the Act only apply from the first full financial year after a new organisation is registered. 

 

Clause 229 - Financial years - change in financial year

 

8.29                 This clause provides a transitional arrangement to cover the situation where an organisation changes its rules in relation to the period constituting its financial year.  As a once-off arrangement to cover the changeover, the period between the end of what was previously the organisation’s financial year and the start of the period that is now its financial year is to be treated as a separate financial year. 

 

Clause 230 - Exemptions from certain Australian Accounting Standards

 

8.30                 This clause allows the Industrial Registrar to grant exemptions from the general requirement (set out in subclause 242(1)) that Australian Accounting Standards apply to organisations.

 

8.31                 Subclause (1) provides that the Industrial Registrar may determine that an Australian Accounting Standard does not apply in relation to an organisation or to a class of organisations.  Subclause (2) requires the Registrar to have regard to the cost of compliance with the Standard and the information needs of members in making a determination about the application of an Australian Accounting Standard.

 

Division 2 - Reporting Units

 

8.32                 This Division provides for reporting units.  Each reporting unit within an organisation is required to comply with the accounting, auditing and reporting obligations of this Part.

 

8.33                 Under the WR Act an organisation may meet its financial accounting, auditing and reporting obligations in one of two ways - on a ‘whole of organisation’ basis, or a’ branch by branch’ basis.  The Act would introduce the more flexible concept of ‘reporting unit’ to allow each organisation to meets its obligations in the manner most appropriate to its internal structure.

 

Clause 231 - What is a reporting unit?

 

8.34                 This clause defines the concept of a ‘reporting unit’ to which the requirements of Part 3 of Chapter 8 apply.

 

8.35                 Subclause (2) provides that an organisation not divided into branches constitutes a single reporting unit. 

 

8.36                 Subclause (3) provides that where an organisation is divided into branches, each branch is a reporting unit unless the Registrar issues a certificate under clause 234 determining the organisation to be divided into reporting units on an alternative basis.

 

8.37                 Subclause (4) provides that the alternative bases for division into reporting units of an organisation that has a branch structure are: the organisation as a whole, or a combination of two or more branches. 

 

8.38                 Subclause (5) is a deeming provision that makes clear that any part of an organisation that is not otherwise included in a branch is taken to be a separate branch for the purposes of the Part.

 

Clause 232 - Designated officers

 

8.39                 This clause defines ‘designated officer’.  A ‘designated officer’ is an officer designated under the rules as an officer responsible (whether alone or with others) for undertaking functions necessary for compliance with the financial accounting, auditing and reporting obligations of Part 3 of Chapter 8.

 

Clause 233 - Members, staff and journals etc. of reporting units

 

8.40                 This clause is a deeming provision necessary as a result of the fact that a ‘reporting unit’ only exists for the purposes of the financial accountability framework.  The clause deems certain aspects of organisations and branches to be aspects of the ‘reporting unit’.

 

Clause 234 - Determination of reporting units

 

8.41                 This clause enables the Industrial Registrar to issue certificates stating that an organisation divided into branches is divided into reporting units on an alternative basis, as provided in subclause 231(3).  The Registrar can issue a certificate on application by an organisation, or at the Registrar’s own initiative.

 

Clause 235 - Determination of reporting units - application by organisation

 

8.42                 This clause outlines the requirements an organisation needs to adhere to in making an application for a certificate under clause 234, including the requirement to include an application to amend any rules of the organisation as may be required to give effect to the establishment of reporting units on the alternative basis sought. 

 

8.43                 Subclause 235(2) sets out matters of which the Registrar must be satisfied before issuing a certificate and certifying any rules changes.

 

Clause 236 - Determination of reporting units - Industrial Registrar initiative

 

8.44                 This clause provides that a certificate issued under clause 234 can only be issued on the Registrar’s own initiative where the Registrar is satisfied that:

 

  • in order to improve compliance with the accounting, auditing and reporting requirements of the Part, it is most appropriate for the organisation to be divided into reporting units as proposed; and

 

  • members of the organisation would have available to them an adequate level of relevant financial information. 

 

8.45                 Before issuing a certificate, the Registrar must have provided the organisation with an opportunity to be heard, in accordance with any procedure prescribed by the regulations. 

 

8.46                 The clause also provides for the Registrar to certify any rules changes that are required to give effect to the reporting structure in the certificate.

 

Clause 237 - Determination of reporting units - years certificate applies to

 

8.47                 This clause provides that a certificate issued under clause 234 operates in relation to each financial year after it is issued unless revoked before the start of a financial year.

 

Clause 238 - Determination of reporting units - revocation of certificates

 

8.48                 This clause provides for the revocation of certificates issued under clause 234.

 

8.49                 If a certificate is revoked the reporting structure of the organisation reverts to each branch being a reporting unit (subclause (2)).

 

8.50                 A certificate may be revoked by the Industrial Registrar on application, or at the Registrar’s initiative (subclause (3)).

 

8.51                 As with the issuing of certificates, provision is made for necessary rule changes to give effect to the new reporting structure that will result from the certificate being revoked (subclauses (4) and (7)).

 

8.52                 Before granting an application for revocation, the Registrar must be satisfied that the level of financial information that would be available to members under the new arrangements would be adequate and relevant, and that the rule changes meet the requirements of the Act (subclause (5)).

 

8.53                 Before revoking a certificate on his or her own motion, the Registrar must be satisfied that, in order to enhance compliance with the accounting, auditing and reporting requirements of the Act, it is most appropriate that the organisation report on a branch by branch basis (subclause (6)).  Any procedure prescribed by the regulations must be complied with.

 

Clause 239 - Determination of reporting units - rules alterations

 

8.54                 This clause clarifies when rule changes in relation to the issuing or revocation of a certificate take effect,  and that such rule changes can vary the duties associated with an office in an organisation.

 

Clause 240 - Determination of reporting units - later certificate revokes earlier certificate

 

8.55                 This clause makes it clear that a reporting unit certificate is revoked with the issuing of a subsequent certificate.

 

Division 3 - Accounting obligations

 

8.56                 This Division sets out the accounting obligations of reporting units.

 

Subdivision A - General obligations

 

Clause 241 - Reporting unit to keep proper financial records

 

8.57                 Each reporting unit is required to keep proper financial records with respect to its transactions and financial position so as to enable compliance with its accounting obligations and to ensure convenient auditing (subclause (1)). 

 

8.58                 Where an organisation consists of more than one reporting unit, records of the units must be kept in a consistent manner (for example, by the adoption of consistent accounting policies and a common chart of accounts), to the extent that this is practicable (subclause (2)).

 

8.59                 Records may be retained on a cash or accrual basis (subclause (3)). 

 

8.60                 Membership records may be kept on a cash basis, even if other records are retained on an accrual basis (subclause (4)).

 

8.61                 Records must be retained for 7 years from the date of the transaction to which they relate (subclause (5)).

 

Clause 242 - Reporting unit to prepare general purpose financial report

 

8.62                 This clause requires a reporting unit to have a general purpose report prepared, from the records required to be kept under clause 241, as soon as practicable after the end of each financial year.  The report must be prepared in accordance with Australian Accounting Standards. 

 

8.63                 Subclause (2) specifies that the report must contain: financial statements; notes to the financial statements which contain any notes required by Australian Accounting Standards or information required by the reporting guidelines to be issued under clause 244; and any other reports or statements requires by the reporting guidelines. 

 

8.64                 Subclause (3) provides that the financial statements and notes must give a true and fair view of a reporting unit’s financial position and performance.  This requirement is a civil penalty provision.

 

Clause 243 - Reporting unit to prepare operating report

 

8.65                 This clause requires the committee of management of a reporting unit to have an operating report prepared as soon as practicable after the end of each financial year.  (This requirement is a civil penalty provision.)

 

8.66                 Subclause (2) lists the matters that must be addressed by the operating report, including that it: contain a review of the reporting unit’s principle activities during the year; provide details of members’ right to resign from the reporting unit; and provide details of involvement, in certain circumstances, of unit officers or members in trusteeships or trustee company directorships relating to certain superannuation funds.



 

 

Subdivision B - Reporting guidelines

 

Clause 244 - Reporting guidelines

 

8.67                 This clause requires the Industrial Registrar to produce and publish in the Gazette reporting guidelines for the purposes of clauses 242 (which relates to organisations generally) and 259 (which provides for reduced reporting requirements for organisations with an annual income of less than $100,000). 

 

8.68                 Subclauses (2) and (3) (which relate to organisations generally, and low income organisations respectively) set out a number of specific items which must be addressed by the reporting guidelines, including the disclosure of information concerning the total amount an organisation pays to all employers in a financial year in return for payroll deduction of membership dues and disclosure of the total amount paid by an organisation for legal costs and other expenses relating to litigation or other legal matters.

 

8.69                 Subclause (4) provides that the Registrar may include in the guidelines other requirements regarding disclosure as he or she considers appropriate. 

 

8.70                 Subclause (5) provides that no appeal lies to the Australian Industrial Relations Commission in respect of the reporting guidelines or their issuance.

 

 

Division 4 - Auditors

 

8.71                 Division 4 provides for auditors to be appointed and sets out the powers and duties of auditors and the duties others have in relation to auditors.  The provisions of this Division largely reflect the WR Act, but have been updated having regard to current standards and Commonwealth criminal law policy.

 

Clause 245 - Auditors of reporting units

 

8.72                 Each reporting unit must have a qualified auditor.  This clause sets out the necessary requirements.

 

Clause 246 - Powers and duties of auditors

 

8.73                 This clause sets out the responsibilities of auditors and the powers exercisable by them in meeting those responsibilities.  The clause is similar to section 276 of the WR Act, subject to some re-drafting to bring the provision into line with current standards; for example, by expressly requiring that the form and content of an auditor’s report comply with the Australian Auditing Standards.

 

Clause 247 - Obstruction etc. of auditors

 

8.74                 This clause makes it an offence for an officer, employee or member of an organisation to obstruct an auditor.  This clause is similar to subsection 326(1) of the WR Act, but has been re-drafted in accordance with Commonwealth criminal law policy in relation the production of documents and protection against self-incrimination.

 

Clause 248 - Reporting unit to forward notices etc. to auditor

 

8.75                 This clause requires a reporting unit to forward to an auditor notices and other communications relating to a meeting at which the auditor’s report, or accounts to which the report relates, are to be considered.

 

Clause 249 - Auditor entitled to attend meetings at which report presented

 

8.76                 An auditor, or a person authorised by the auditor, is entitled to attend any meeting at which the auditor’s report, or accounts to which the report relates, are to be considered, or at which there will be business concerning the auditor or a person authorised by the auditor.

 

Clause 250 - Auditors and other persons to enjoy qualified privilege in certain circumstances

 

8.77                 This clause provides that auditors and certain other persons enjoy qualified privilege in relation to defamation in certain circumstances.

 

Clause 251 - Fees and expenses of auditors

 

8.78                 This clause provides that a reporting unit must pay the reasonable fees and expenses of an auditor.

 

Clause 252 - Removal of auditor

 

8.79                 This clause provides that an auditor is not to be removed from office, except by resolution passed at a meeting of the body of the reporting unit that appointed the auditor.  The auditor is accorded certain procedural rights in relation to any such meeting.

 

Clause 253 - Resignation of auditor

 

8.80                 This clause provides for the manner in which an auditor is able to resign his or her appointment.  Subclause (3) requires a reporting unit to notify its members of the reasons for the auditor’s resignation if the auditor so requests.  (This requirement is a civil penalty provision.)

 

Division 5 - Reporting requirements

 

8.81                 Division 5 sets out the reporting requirements that reporting units must comply with.



 

Clause 254 - Copies of full or concise report to be provided to members

 

8.82                 A reporting unit is required to provide to its members either a full report, consisting of copies of the auditor’s report, the general purpose financial report and the operating report, or a concise report (subclause (3) sets out the matters to be addressed in a concise report).

 

8.83                 The report must be provided to members within a specified period after the end of the financial year to which it relates (subclause (5)).

 

8.84                 A reporting unit can only provide members with a concise report if, in accordance with its rules, the committee of management resolves to do so (subclause (2)).  Where requested by a member, a reporting unit that has provided members with a concise report must provide to the member, within 28 days, a copy of the full report (subclause (4)).

 

8.85                 The requirement to provide a report may be satisfied in certain circumstances by publication of the report in the reporting unit’s journal (subclauses (6) and (7)).

 

Clause 255 - Full report to be presented to meetings

 

8.86                 This clause provides for the presentation of the full report to appropriate meetings.  The emphasis of the reporting requirement is on direct member participation.

 

8.87                 In the absence of acceptable alternative arrangements (see below), the report is to be provided to a meeting of members or, where the rules of the organisation so provide, a series of meetings (subclauses (1) and (2)). 

 

8.88                 The report may be presented to a meeting of the reporting unit’s committee of management only where the rules of the organisation allow not more than 5% of members to call a full meeting of members to consider the report (subclause (3)).

 

Clause 256 - Comments by committee members not to be false or misleading

 

8.89                 This clause prohibits misleading, false or reckless statements on the part of a reporting unit’s committee of management where, in relation to the provision or presentation of a report, the committee comments on matters dealt with in a full or concise report.  

 

Clause 257 - Reports etc. to be lodged in Industrial Registry

 

8.90                 A reporting unit must lodge reports in the Industrial Registry within 14 days of their being presented to meetings.  This is a civil penalty provision.



 

Division 6 - Reduced reporting requirements for particular reporting units

 

8.91                 This Division provides for reduced reporting requirements to apply in particular cases.

 

Clause 258 - Reporting units with substantial common membership with State registered bodies

 

8.92                 This clause enables a Registrar to accept reports lodged with registries established under State legislation where a reporting unit is composed of the same membership as an associated State body provided that certain prerequisites are met.

 

Clause 259 - Organisations with income of less than certain amount

 

8.93                 This clause enables the Registrar to issue a certificate permitting a reporting unit that is the whole of an organisation with an annual income of less than $100,000 to comply with the reduced reporting requirements provided in the clause. 

 

Clause 260 - Exemption from this Part of certain reporting units

 

8.94                 This clause allows a Registrar to provide a reporting unit with a general exemption from the requirement of the Part where the unit had no financial affairs in a financial year.  

 

Division 7 - Members’ access to financial records

 

8.95                 Division 7 provides for members’ access to financial records of reporting units.  The Act provides increased access for members to financial records, in line with current standards (eg, in the Corporations Law).

 

Clause 261 - Information to be provided to members or Registrar

 

8.96                 This clause provides that a reporting unit, on application by a member or a Registrar, must make available certain prescribed information concerning its financial affairs.  A Registrar may only apply for the information at the request of a member and the Registrar is to furnish that member with the information received.  Subclause (6) specifies that the prescribed information must include details regarding fees paid by the reporting unit to an employer in return for payroll deduction of membership dues.

 

8.97                 With the exception of subclause (6), this clause is similar to section 274 of the WR Act.

 

Clause 262 - Order for inspection of financial records

 

8.98                 This clause enables a member of a reporting unit to apply for an order allowing inspection of financial records and sets out the matters of which the Commission must be satisfied before granting an order, including that: the application is made in good faith and that there are reasonable grounds for suspecting a breach of the financial accounting, auditing and reporting provisions or regulations relating to those provisions, the reporting guidelines, or a relevant rule of the reporting unit. The Commission’s power to order access to the financial records of a reporting unit is confined to those records that relate to the suspected breach.

 

Clause 263 - Frivolous or vexatious applications

 

8.99                 This clause provides for a civil penalty in relation to making applications under clause 262 that are vexatious or without reasonable cause.  The Commission is also required to dismiss such applications as soon as possible.

 

Clause 264 - Ancillary orders

 

8.100             This clause provides that where the Commission makes an order under clause 262, it may make any other orders it considers appropriate.  Examples of such orders include: an order limiting the use to which information obtained may be put, an order limiting the right of a person inspecting records to make copies, and an order ensuring that the reporting unit need not provide names and addresses where these are contained in financial records.

 

Clause 265 - Disclosure of information acquired in inspection

 

8.101             This clause ensures that information accessed during an inspection granted under clause 262 is not improperly disclosed.

 

8.102             Disclosure to a Registry official or the applicant is permitted.

 

8.103             This provision is a civil penalty provision.

 

Clause 266 - Reporting unit or committee of management may allow member to inspect books

 

8.104             This clause provides that the committee of management, or the reporting unit by resolution passed at general meeting, may allow a member to inspect financial records.

 

Clause 267 - Commission to be advised of breaches of Part or rules etc. found during inspection

 

8.105             This clause would require the Registry to be notified and provided with any relevant information in the event that an inspection of financial records ordered under clause 262 results in a reasonable belief that a breach may have occurred.  Where the Commission considers the belief as to a breach to be reasonably grounded, the Registry must refer the matter to the Registrar.

 

Clause 268 - Constitution of Commission

 

8.106             For the purposes of proceedings under Division 7 (which relates to access to financial records), the Commission is to be constituted by a Presidential Member.



 

Part 4 - Conduct of officers and employees

 

Division 1 - Preliminary

 

Clause 269 - Simplified outline

 

8.107             This clause provides a simplified outline of the Part.

 

Clause 270 - Part only applies in relation to financial management

 

8.108             This clause limits the application of the Part to the exercise, by officers and employees of an organisation or branch, of duties relating to the financial management of the organisation or branch.

 

Clause 271 - Meaning of involved

 

8.109             This clause provides a definition of the term ‘involved’, which is relevant to the operation of the duties to be imposed by proposed sections 273, 274 and 275.

 

Division 2 - General Duties

 

Clause 272 - Care and diligence - civil obligation only

 

8.110             This clause sets out the civil obligation of officers of organisations and their branches with  respect to the duty of care and diligence. 

 

8.111             Subclause (1) requires powers and duties to be exercised with the degree of care and diligence of a reasonable person, taking account of certain matters. 

 

8.112             This provision is a civil penalty provision.

 

8.113             Subclause (2) provides that a judgment of an officer will meet the obligation under subclause (1), and the equivalent duties at common law and equity, in respect of the judgment if:

 

  • the judgment is made for a proper purpose;

 

  • the officer does not have a personal interest in the subject matter of the judgment;

 

  • the officer appropriately informs himself or herself about the subject matter of the judgment;

 

  • he or she rationally believed that the judgment was in the best interests of the organisation. 

 

8.114             Such a belief is to be considered rational unless it is a belief that no reasonable person in the officer’s position would hold.

 

Clause 273 - Good faith - civil obligations

 

8.115             This clause imposes a civil good faith obligation upon officers of organisations and their branches, requiring that powers or duties be discharged in good faith in the best interests of the organisation, and for a proper purpose. 

 

8.116             Subclause (2) extends contravention of the duty to a person involved in such a contravention.  (What constitutes involvement is set out in clause 271.)

 

Clause 274 - Use of position - civil obligations

 

8.117             This clause imposes a civil obligation on officers and employees of organisations and their branches in relation to use of position. 

 

8.118             An officer or employee is not to use his or her position to obtain advantage for himself or herself or someone else, or cause detriment to the organisation or another person. 

 

8.119             Subclause 274(2) extends contravention of the duty to a person involved in such a contravention.  (What constitutes involvement is set out in clause 271.)

 

Clause 275 - Use of information - civil obligations

 

8.120             This clause imposes a civil obligation on officers and employees of organisations and their branches in relation to use of information. 

 

8.121             A person who obtained information through being, or having been, an officer or employee, is prohibited from improperly using that information to obtain advantage for himself or herself or someone else, or cause detriment to the organisation or another person. 

 

8.122             Subclause (2) extends contravention of the duty to a person involved in such a contravention.  (What constitutes involvement is set out in clause 271.)

 

Clause 276 - Effect of ratification by members

 

8.123             Subclause (1) clarifies that ratification of a breach of the civil duties set out in clauses 272 to 275 by the members of an organisation does not prevent or affect the instigation or determination of proceedings for contravention of those sections.

 

8.124             Subclause (2) provides that the Court may take ratification of breaches of the civil duties set out in clauses 272 to 275 into account, provided the court has had regard to certain matter, in deciding what order to make in respect of a proceeding for contravention of any of those clauses.

 

Clause 278 - Compliance with statutory duties

 

8.125             This clause provides that the action of an officer or employee, does not contravene civil obligations in clauses 273, 274 or 275, if it were required by another provision of the Act or the WR Act.

 

Clause 279 - Interaction with other laws etc.

 

8.126             This clause preserves the operation of other laws concerning the duties of a person because of his or her employment or office in relation to an organisation, and ensures that action may still be taken in respect of a breach of, or liability under, any other such laws.  The judgement rule in subclause 272(2) is an exception to this general proposition; the application of clause 279 is excluded to the extent to which it operates on the duty of due care and diligence at common law and equity.

 

Clause 280 - Reliance on information or advice provided by others

 

8.127             This clause ensures that where the reasonableness of an officer’s reliance on advice provided by others is in question in proceedings regarding a breach of duty under this Part or equivalent duties at common law and equity, that reliance is taken to be reasonable unless proved otherwise, provided certain matters are satisfied.

 

Clause 281 - Responsibility for actions of other person

 

8.128             Subclause (1) provides that where a power is delegated to another, the officer making the delegation is liable in respect of the exercise of that power as if he or she exercised the power personally. 

 

8.129             Subclause (2) provides an exception to subclause (1) where the officer making the delegation had reasonable grounds to believe, in good faith, after having made proper inquiry, that the power was delegated to a reliable and competent person, and that the officer making the delegation had reasonable grounds to believe that the power would be exercised in compliance with the duties imposed on officers by the Act or the WR Act.

 

Part 5 - Access to organisation’s books

 

Clause 282 - Right of access to organisation’s books

 

8.130             This clause would allow an officer or former officer with a right of access, in certain circumstances, to an organisation’s books for the purposes of legal proceedings.



Chapter 9 - Civil Penalties

 

9.1                     Chapter 9 provides for civil penalties and allows for the making of orders by the Federal Court in respect of conduct that contravenes a civil penalty provision. This Chapter also sets out the relationship with criminal proceedings arising out of the same conduct.

 

Part 1 - Simplified outline of Chapter

 

Clause 283 - Simplified outline

 

9.2                     This clause provides an outline of the contents of the chapter.

 

 

Part 2 - Civil consequences of contravening civil penalty provisions

 

Clause 284 - Civil penalty provisions

 

9.3                     This clause lists the civil penalty provisions contained in the Act, and provides that application may be made to the Federal Court for orders in relation to contravention of a civil penalty provision.

 

9.4                     To avoid doubt, the clause provides that a contravention by a branch or reporting unit within a registered organisation is a contravention by the organisation.

 

Clause 285 - Pecuniary penalty orders that the Federal Court may make

 

9.5                     This clause sets out the pecuniary penalties that the Federal Court may order where the Federal Court finds that a person or organisation has contravened a civil penalty provision. The clause provides maximum penalties of 100 penalty units in the case of a body corporate and 20 penalty units in other cases. By operation of section 4AA of the Crimes Act 1914 , a penalty unit is currently $110.

 

9.6                     A penalty ordered under this clause is payable to the Commonwealth; the Commonwealth may recover a penalty as if it were a judgment debt.

 

Clause 286 - Compensation orders

 

9.7                     This clause enables the Federal Court to order that a person who has contravened a civil penalty provision relating to the duties of officers and employees of registered organisations (see Part 4 of Chapter 8) must compensate the organisation for damage it has suffered as a result of the contravention.

 

9.8                     The Court is to take account of any profits made by the person from the contravention of the civil penalty provision in quantifying the damage suffered by the organisation. The clause also specifies that a compensation order may be enforced as if it were a judgment of the Court.

 

Clause 287 - Other orders

 

9.9                     This clause provides the Federal Court with broad power to make necessary orders where there has been a contravention of a civil penalty provision, including injunctions and interim injunctions.

 

9.10                 Orders under this provision may be made irrespective of whether orders have also been made under clauses 285 or 286.

 

Clause 288 - Effect of section 286

 

9.11                 This clause preserves the operation of any other laws concerning the duties of a person relating to his or her employment or office in a registered organisation.

 

Clause 289 - Who may apply for an order

 

9.12                 This clause sets out who may make an application for an order relating to a contravention of a civil penalty provision.

 

9.13                 The Industrial Registrar or a person authorised in writing by the Industrial Registrar may apply for an order under this Part regarding breach of a civil penalty provision.

 

9.14                 An organisation may apply for a compensation order under clause 286 and may intervene in an application for an order under clauses 285 or 287.

 

Clause 290 - Civil proceedings after criminal proceedings

 

9.15                 To avoid double penalties, this clause prevents the Federal Court from making an order for a pecuniary penalty against a person if the person has already been convicted of an offence constituted by substantially the same conduct as the contravention of a civil penalty provision.

 

Clause 291 - Criminal proceedings during civil proceedings

 

9.16                 This clause provides that where criminal proceedings are started in respect of conduct that is substantially the same as that relating to proceedings for a pecuniary penalty order for a contravention of a civil penalty provision, the civil proceedings are stayed.

 

9.17                 If the person is later convicted of the offence, then the proceedings for an order for breach of the civil penalty provisions are dismissed. Otherwise, the proceedings may be resumed.

 

Clause 292 - Criminal proceedings after civil proceedings

 

9.18                 This clause ensures that if an order in respect of a contravention of a civil penalty provision has been made, criminal proceedings relating to substantially the conduct may still be instigated.

 

Clause 293 - Evidence given in proceedings for penalty not admissible in criminal proceedings

 

9.19                 This clause prevents admission of evidence in criminal proceedings where the evidence was previously given in proceedings for a pecuniary penalty order relating to contravention of a civil penalty provision and the criminal proceedings relate to substantially the same conduct. An exception is made for criminal proceedings regarding false evidence given in the civil penalty proceedings.

 

Clause 294 - Relief from liability for contravention of civil penalty provision

 

9.20                 This clause enables the Federal Court to relieve an organisation or person, in whole or part, from liability for contravention of a civil penalty provision where the Court considers that the respondent acted honestly, and that the circumstances are such that it is fair that the respondent should be excused. An application for relief may also be made by a person or an organisation that apprehends that proceedings may be commenced against them.

 

Clause 295 - Power to grant relief

 

9.21                 This clause enables the Federal Court to relieve liability which corresponds to that granted by clause 294, but in respect of civil proceedings against a person for negligence, default, breach of trust or breach of duty in their capacity as an officer of a registered organisation.



Chapter 10 - Miscellaneous

 

 

Part 1 - Simplified outline of Chapter

 

Clause 296 - Simplified outline

 

10.1                 This clause provides a simplified outline of the content of each Part of Chapter 10.

 

Part 2 - Validating provisions for organisations

 

10.2                 This part deals with the validation of certain invalidities occurring in relation to registered organisations, and reflects Division 8 of Part IX of the WR Act.

 

Clause 297 - Definition

 

10.3                 This clause defines ‘invalidity’ as it is used in Part 2.

 

Clause 298 - Validation of certain acts done in good faith

 

10.4                 This clause validates acts done in good faith by a collective body of or an office holder in an organisation or branch. 

 

10.5                 Subclause 298(1) provides that, subject to other subclauses of clause 298 and clause 300, these acts by a collective body, or by persons purporting to act as such a body, in an organisation or branch are to be valid notwithstanding any invalidity afterwards discovered in elections for or appointments to the collective body or in the making or altering of rules.

 

10.6                 Subclause 298(2) makes similar provision in relation to acts done in good faith by a person who holds, or purports to hold, an office or other position in the organisation or branch.

 

10.7                 Subclause 298(3) provides that in order to come within the clause, a person must have purported to hold the position concerned in good faith and must have been treated by officers or members as holding the position.

 

10.8                 Subclause 298(4) provides that good faith is to be presumed until the contrary is proved and that knowledge of facts from which an invalidity arises is not of itself to be treated as knowledge that the invalidity exists. Certain invalidities relating to a branch or to the organisation are only to be treated as discovered when they can be proved to have become known to a majority of members of the committee of management concerned.

 

10.9                 Subclause 298(5) applies the provisions of the clause to an act whether done before or after the commencement of the Act.

 

10.10             Subclauses 298(6) and (7) provide that the clause is not to validate an otherwise invalid expulsion, suspension or imposition of a fine or other penalty on a member of an organisation.  Further, it does not affect the operation of Part 3 of Chapter 7, which deals with inquiries into elections.

 

Clause 299 - Validation of certain acts after 4 years

 

10.11             Subject to the other provisions of the clause and clause 300, clause 299 validates acts four years after their having been done by collective bodies (or purported collective bodies) and holders of officers or other positions (or persons purporting to hold them) in organisations and branches. Similar provision is made in relation to elections, appointments and rule alterations.

 

10.12             Court orders made during the four year period are not affected, but the provision operates in respect of acts occurring before the commencement of the legislation and before an organisation’s registration.

 

Clause 300 - Order affecting application of section 298 or 299

 

10.13             This clause enables the Federal Court, on application, if satisfied that substantial injustice would be done if clauses 298 or 299 applied in respect of a particular act, to order that they do not apply in relation to the act.

 

Clause 301 - Federal Court may make orders in relation to consequences of invalidity

 

10.14             This clause allows an organisation, members of an organisation or an interested person to apply to the Federal Court for a ruling on whether an invalidity has occurred in relation to an organisation or branch.

 

10.15             The Court may make an order to correct the invalidity or its effects if to do so would not cause substantial injustice to the organisation, its members or others having dealings with the organisation.

 

Clause 302 - Federal Court may order reconstitution of branch etc.

 

10.16             This clause enables the Federal Court to provide for the reviving of defunct parts of organisations and the filling of vacant offices and positions in certain circumstances. 

 

10.17             Subclause 302(1) provides that an organisation, member or interested person may ask the Court to make a declaration that a part of the organisation has ceased to exist or function effectively and that the situation cannot be remedied under the rules. A similar declaration may be made in relation to vacant offices or positions that cannot be filled under the rules.

 

10.18             Subclause 302(2) provides that where a declaration is made under subclause 302(1), the Court may approve a scheme for action to be taken by collective body or officers in the organisation or branch to restore part of the organisation concerned, or to fill vacant offices or positions.

 

10.19             Subclause 302(4) provides that, before approving such a scheme, the Court must be satisfied that there will not be a substantial injustice done to the organisation or a member. 

 

10.20             The other provisions of the clause are of a technical nature.

 

Part 3 - Financial assistance and costs

 

Division 1 - Financial assistance

 

10.21             This Division provides for arrangements under which the Minister has power to grant financial assistance in respect of costs incurred in certain proceedings under the Act, and circumstances in which costs can be ordered in proceedings under the Act. These provisions reflect Part XII of the WR Act.

 

Clause 303 - Authorisation of financial assistance

 

10.22             Subclause 303(1) gives the Minister power to authorise financial assistance where it is reasonable to do so and refusal would likely cause hardship to the applicant.

 

10.23             Subclause 303(2) sets out the parties that are eligible to apply for financial assistance in respect of certain proceedings (including proceedings in relation to performance of rules orders, election inquiries, disqualification from office, and certain ballot inquiries).

 

10.24             Subclause 303(3) defines the term ‘relevant costs’ for the purposes of the clause.

 

Clause 304 - Federal Court may certify that application was reasonable

 

10.25             This clause complements clause 303. It enables the Federal Court to certify that where an applicant of a particular kind was not successful, the applicant acted reasonably in making the application. The purpose of this provision is to assist the Minister in determining whether an application for financial assistance should be granted.

 

Clause 305 - Applications under section 161, 162 and 165

 

10.26             This clause allows the Minister to refuse financial assistance in relation to certain specified types of proceedings where it would be contrary to the interests of justice to grant the application, or where the order sought in the proceeding is substantially similar to that obtained in an other relevant proceeding which concerned substantially similar issues of fact and/or law (subclause (1)).

 

10.27             Subclause 305(2) provides a definition of the term ‘other relevant proceeding’ for the purposes of subclause 305(1).

 

10.28             Subclauses 305(3), (4) and (5) relate to amounts and time of payments of amounts of the assistance.

 

Clause 306 - Fees for 2 counsel not normally to be paid

 

10.29             This clause provides that financial assistance is not payable in respect of the fees of two or more counsel appearing for an applicant, unless other parties to the proceeding were, or are, represented by two or more counsel.

 

Clause 307 - Powers of Federal Court not affected

 

10.30             This clause preserves the Federal Court’s powers to make orders with respect to the costs of proceedings before the Court.

 

Division 2 - Costs

 

Clause 308 - Costs only where proceeding instituted vexatiously etc.

 

10.31             This clause provides that costs can only be ordered against a person party to a proceeding under the Act where the person instituted the proceeding vexatiously or without reasonable cause. This provision reflects section 347 of the WR Act.

 

Part 4 - Inquiries and investigations

 

10.32             Part 4 gives the Industrial Registrar, or Registry officials, certain powers to make inquiries and investigate matters under the Act.  These provisions expand on sections 280 and 280A of the WR Act.

 

Clause 309 - Registrar or staff may make inquiries

 

10.33             This clause enables the Registrar, or Registry officials, to make inquiries regarding:

 

  • compliance with Part 3 of Chapter 8 (accounts and audit), reporting guidelines, relevant regulations and an organisation’s rules governing the finances or financial administration of a reporting unit; and

 

  • as to whether a civil penalty provision has been complied with.

 

10.34             This is a general inquiry power. Unlike investigations conducted by a Registrar under clause 310, there is no power of compulsion associated with inquiries under this clause.

 

Clause 310 - Registrar may conduct investigations

 

10.35             This clause makes provision for investigations by a Registrar. An investigation may, but need not, follow an inquiry under clause 309 (subclause (5)).

 

10.36             The clause enables a Registrar to conduct an investigation to determine whether there has been a contravention of Part 3 (accounts and audit), reporting guidelines, relevant regulations and an organisation’s rules governing the finances or financial administration of a reporting unit, where satisfied that there are reasonable grounds for doing so (subclause (1)).

 

10.37             The Registrar has similar powers in respect of civil penalty provisions (subclause (2)).

 

10.38             If as a result of such investigations, it appears there are grounds for investigating the finances or financial administration of the reporting unit, the Registrar may investigate further. An investigation may also be conducted in circumstances prescribed by the Regulations (subclause (3)).

 

Clause 311 - Investigations arising from auditor’s report

 

10.39             This clause requires a Registrar - where an auditor’s report lodged with the Registry highlights a defect, irregularity, deficiency, failure or shortcoming that the Registrar considers sufficient to require investigation - to investigate the matter (subclause (1)).

 

10.40             An investigation is not required if the deficiency consists of the fact that the organisation has maintained financial records for its membership subscriptions on a cash basis (as provided in subclause 241(4)), or the matters are considered trivial and likely to be remedied in the following financial year (subclause (2)).

 

10.41             Where, as a result of matters raised in the auditor’s report or an investigation under this clause, a Registrar considers that there are grounds for investigating the finances or financial administration of the reporting unit, the Registrar may make a further investigation (subclause (3)).

 

Clause 312 - Investigations arising from request from members

 

10.42             This clause provides that a prescribed number of members of a reporting unit may request that the finances and financial administration of the reporting unit be investigated, and that a Registrar is required to conduct an investigation.

 

10.43             If there is more than one such request for an investigation in a financial year, the Registrar may decide to only conduct one investigation.

 

Clause 313 - Investigations arising from referral under section 267

 

10.44             This clause provides that, where a matter has been referred under clause 267, the Industrial Registrar must ensure that it is investigated by a Registrar.

 

Clause 314 - Conduct of investigations

 

10.45             This clause allows a Registrar, for the purpose of conducting an investigation, to require designated officers, employees or auditors of an organisation (past or present) to provide information or produce documents. The Registrar may also require a person to attend before the Registrar to answer questions relating to the investigation.

 

Clause 315 - Action following an investigation

 

10.46             This clause provides that upon conclusion of an investigation, where the Registrar conducting the investigation believes that the reporting unit has contravened a provision of the Part, or of the regulations or reporting guidelines, or the reporting unit’s rules regarding finances or financial administration, the Registrar must notify the reporting unit of this (subclause (1)).

 

10.47             The Registrar may also issue a notice to the reporting unit requesting it to take specified action to remedy the contravention within a specified time, or apply to the Federal Court for an order under the civil penalty provisions of the Act, or refer the matter to the Director of Public Prosecutions (subclause (2)). The note to this subclause makes clear that in appropriate circumstances, the Registrar may also make a determination regarding the appropriate reporting unit structure of the relevant organisation under clause 236.

 

10.48             On application by the Registrar, the Court may make orders to ensure that the reporting unit complies with a notice issued by the Registrar requesting it to take action to remedy a contravention (subclause (5)). Failure to comply with such an order is a basis for an application for cancellation of registration under clause 27.

 

Clause 316 - Offences in relation to investigation by Registrar

 

10.49             This clause provides that it is an offence for a person to refuse or fail to provide information, produce a document or attend before the Registrar, as required under subclause 314(2). In addition, a person must not provide information or knowingly or recklessly make a statement that is false or misleading.

 

10.50             Subclause 316(2) provides that it is a defence to the offence in subsection 316(1) to have a reasonable excuse for the refusal or failure.

 

10.51             Under subclause 316(3), a person is not excused from providing information on the ground that the information provided might incriminate the person. However, subclause 316(4) provides that any information obtained by requiring a person to give information under subclause 314(2) is inadmissible against the person in criminal proceedings or civil proceedings, other than proceedings relating to the offence under paragraphs 316(1)(b) or (c).

 

Part 5 - Jurisdiction of the Federal Court of Australia

 

10.52             The provisions in this Part of Chapter 10 reflect Divisions 2 and 3 of Part XIV of the WR Act.

 

Clause 317 - Jurisdiction of Federal Court

 

10.53             This clause vests the Federal Court with jurisdiction in relation to matters arising under the Act in relation to which:

 

  • applications can be made or actions brought under the Act or the WR Act;

 

  • questions can be referred to it;

 

  • penalties may be sued for or recovered under the Act; or

 

  • prosecutions may be instituted for offences under the Act (subclause (1)).

 

10.54             For the purposes of section 44 of the Judiciary Act 1903 , the Court also has jurisdiction regarding any matter in which a writ of mandamus or prohibition or an injunction is sought against any officer of the Commonwealth holding office under the WR Act and exercising powers under the Act (subclause (2)).

 

10.55             It is also given jurisdiction relating to matters remitted under section 44 of the Judiciary Act 1903 (subclause (3)).

 

Clause 318 - Exclusive jurisdiction

 

10.56             This clause sets out certain matters in respect of which the jurisdiction of the Federal Court is exclusive of the jurisdiction of other courts and of State industrial authorities.

 

Clause 319 - Exercise of Court’s original jurisdiction

 

10.57             This clause requires the jurisdiction of the Federal Court to be exercised by a Full Court in relation to particular matters.

 

Clause 320 - Reference of proceedings to Full Court

 

10.58             This clause provides that, at any stage of a proceeding in a matter arising under the Act, a single judge may refer a specific question of law or refer the matter to be heard and determined by a Full Court. Any evidence given or arguments adduced in the proceeding before the Judge may be taken into account by the Full Court.

 

Clause 321 - Appeal to the Court from certain judgements

 

10.59             This clause provides that an appeal to a Full Court does not lie from a judgment by a single Judge in an election or ballot inquiry, except with leave of the court.

 

Part 6 - Other

 

10.60             The provisions of this Part largely reflect provisions in Part XIII of the WR Act. Clauses 324 - 328 reflect sections 287 - 289 and 291 - 292 of the WR Act.

 

Clause 322 - Delegation by Minister

 

10.61             This clause permits the Minister to delegate all or any of the Minister’s powers under the Act to the Secretary of the Department or an SES or acting SES employee.

 

Clause 323 - Conduct by officers, directors, employees or agents

 

10.62             Under subclause 323(1), if it is necessary for the purposes of the Act to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to establish the state of mind of a specified representative who engaged in the conduct concerned within his or her actual or apparent authority.

 

10.63             Subclause 323(2) deems conduct engaged in on behalf of a body corporate by certain persons (whose authority or apparent authority permitted the conduct) to have been engaged in by the body corporate.

 

10.64             Subclause (3) defines the term ‘state of mind’.

 

Clause 324 - Right to participate in ballots

 

10.65             This clause provides that, subject to any reasonable provisions in the rules of an organisation, every financial member of an organisation is entitled to vote in any ballot on a matter submitted to a vote of the members of the organisation or of a branch, section or other division to which the member belongs.

 

Clause 325 - Requests by members for information concerning elections and certain ballots

 

10.66             This clause permits a financial member of an organisation to request a returning officer conducting an election for office or other position, or a ballot on a matter, in an organisation or branch to supply information to the member for the purpose of ascertaining whether an irregularity has occurred in that election or ballot. The returning officer must comply with the request.

 

Clause 326 - Providing copy of rules or list of offices etc. on request by member

 

10.67             This clause requires an organisation or branch to provide copies of rules, amendments to rules, or the lists of offices and office holders in the organisation or branch to a member where requested in writing. The regulations may prescribe a number of matters in relation to such requests, including fees that may be charged by the organisation or branch (This provision for regulations is not reflected in the WR Act).

 

Clause 327 - Certificate as to membership of organisation

 

10.68             This clause provides that the certification by a Registrar that a person was a member or officer of an organisation or branch at a specified time is evidence of that fact.

 

Clause 328 - List of officers to be evidence

 

10.69             This clause provides that a list of officers of an organisation or branch lodged in the Industrial Registry under the Act or a copy of such a list certified by a Registrar is evidence that the persons named in the list were officers at the time of lodgement.

 

Clause 329 - Unauthorised collection of money

 

10.70             This clause provides that it is an offence to knowingly make false representation as to authority to collect money for an organisation, or to collect money knowingly without authority.

 

Clause 330 - No imprisonment in default

 

10.71             This clause provides that a court is unable to direct that a person is to serve a prison sentence in default of payment of a fine or penalty imposed under the Act.

 

Clause 331 - Jurisdiction of courts limited as to area

 

10.72             This clause is designed to facilitate, where relevant, proceedings before State and Territory courts by making their jurisdiction operate throughout a relevant State or Territory.

 

Clause 332 - Public sector employer to act through employing authority

 

10.73             Under this clause employers in public sector employment are required to act for the purposes of the Act through an employing authority. This clause sets out certain implications of this requirement. (The term ‘employing authority’ is defined in clause 6 where provision is made for persons or bodies to be prescribed as employing authorities).

 

Clause 333 - Proceedings by and against unincorporated clubs

 

10.74             The treasurer of an unincorporated club is deemed by this clause to be the employer of any employee of the club and proceedings under the Act that may be taken by or against such a club may be taken by or against the treasurer.

 

Clause 334 - Inspection of documents etc.

 

10.75             This is a procedural provision permitting inspection of documents in proceedings before the Commission.

 

Clause 335 - Trade secrets etc. tendered as evidence

 

10.76             This clause sets down procedures to be followed in proceedings before the Federal Court and the Commission where a person objects that information tendered as evidence may be a trade secret or relate to the financial position of a witness or party. The Court and Commission are given a power to restrict access to such evidence.

 

Clause 336 - Application of penalty

 

10.77             This clause enables a court imposing a penalty under the Act to order either all or part of the penalty to be paid into consolidated revenue or to a particular organisation or person.

 

Clause 337 - Enforcement of penalties etc.

 

10.78             This clause relates to the enforcement of penalties imposed under the Act and orders as to costs and expenses.

 

Clause 338 - Regulations

 

10.79             This clause provides regulation making powers for the purposes of the Act, including power to make regulations imposing civil penalties (not exceeding 25 penalty units for a body corporate and 5 penalty units in other cases), for breaches of the regulations.  Regulations can also be made requiring employers to provide information about money received from an organisation for the provision of facilities for payroll deductions of membership dues, and to make regulations requiring employers to inform employees who use payroll deduction facilities that ceasing to use the facilities does not constitute resignation from an organisation (subclauses (3) and (4)).

 

Clause 339 - Schedule 2 - Complementary registration systems

 

10.80             This clause provides for the application of Schedule 2 to the Act to organisations divided into branches whose operations are confined to a prescribed State. Schedule 2 contains certain provisions that reflect those in Schedule 4 to the WR Act.



 

Schedule 1 - Persons, other than employees, who may be members of associations applying for registration

 

 

11.1                 Schedule 1 reflects provisions in Schedule 3 to the WR Act and operates in conjunction with clause 15 of the Act to permit an association of employees applying for registration, and consequently an organisation of employees, to have as members persons deemed to be employees by specified State legislation.



Schedule 2 - Complementary registration systems

 

 

12.1                 Schedule 2 reflects provisions in Schedule 4 to the WR Act. The provisions are designed to overcome difficulties arising from the multiple incorporation of associations by consequence of their registration under the federal and some State workplace relations systems. These problems were highlighted in the 1969 judgment of the Commonwealth Industrial Court in Moore v Doyle 15 FLR 59.

 

12.2                 Part 1 contains definitions.

 

12.3                 Part 2 provides for a separate Branch fund. Provision is also made in Part 2 for certain matters to be considered in relation to changes to eligibility rules of organisations for which there is an associated body registered under State law. Branch autonomy is required to be provided for under the rules. Participation in State workplace relations systems is authorised, including by the registration of a branch of a federal organisation, provided it is not thereby incorporated.

 

12.4                 Part 3 permits amalgamation between an organisation and an associated State body to facilitate the operation of the complementary system by establishing single bodies to represent members in both federal and State systems.

 

12.5                 Part 4 provides that the Commission’s jurisdiction under the Schedule is to be exercised by a Presidential Member.