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Workplace Relations (Registered Organisations) (Consequential Provisions) Bill 2001

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THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

 

 

 

 

WORKPLACE RELATIONS (REGISTERED ORGANISATIONS) (CONSEQUENTIAL PROVISIONS) BILL 2001

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

and Small Business, the Honourable Tony Abbott MP)



WORKPLACE RELATIONS (REGISTERED ORGANISATIONS) (CONSEQUENTIAL PROVISIONS) BILL 2001

 

OUTLINE

 

The Workplace Relations (Registered Organisations) Act 2001 (the RO Act) re-enacts in separate piece of legislation those provisions of the Workplace Relations Act 1996 (the WR Act) concerning the registration and internal administration of registered organisations.  In doing so, the Act makes amendments to the operation of those provisions to reflect modern standards and practices, particularly in relation financial accountability, transparency and democratic control.  The substantive provisions of the RO Act operate from the time fixed by proclamation (section 2 of that Act).

 

The Workplace Relations (Registered Organisations) (Consequential Provisions) Bill 2001 (the Bill) has two main purposes:

·               to make consequential amendments arising from provisions of the RO Act, including repealing provisions of the WR Act that are to be replaced by the RO Act, and making technical amendments to other Acts (generally to replace references to the WR Act with references to the RO Act); and

·               to provide transitional and saving provisions concerning the operation of the RO Act.

 

The Bill contains three schedules:

·               Schedule 1 - transitional and savings provisions.

·               Schedule 2 - amendments to the WR Act; and 

·               Schedule 3 - amendments to other Acts.

Schedule 1

Schedule 1 contains a number of transitional and saving provisions designed to provide for a smooth transition from the WR Act to the RO Act.  An overview of this schedule is briefly set out below.  [Throughout this schedule, ‘commencement’ means commencement of Item 1 of this Schedule].

 

Part 1 includes general provisions to ensure the ongoing effect of orders, injunctions, declarations decisions, obligations and the like, that are in force at the time of commencement, and to allow for the continuation (under the WR Act provisions) of any proceedings or matters (subject to specific clauses of this Bill) that have commenced under provisions of the WR Act.

The Federal Court is given the power to resolve any difficulties arising from the application of this Act, or the operation of the RO Act as result of the application of this Act.

 

Part 2 deals with the registration, deregistration, amalgamations and disamalgamations of registered organisations.

 

Parts 3 and 4 set out transitional provisions concerning rules of organisations and membership of organisations, respectively.

 

Part 5 provides transitional arrangements for the conduct of elections and inquiries into such elections, and disqualifications from holding office.

 

Part 6 contains transitional provisions concerning the financial accountability of registered organisations.

 

Part 7 deals with technical issues.

 

Other transitional provisions

Some specific transitional provisions are contained in the RO Act itself, for example, validating provisions which operate in respect of acts occurring before the commencement of that Act (subsection 299(3)).

Schedule 2

Schedule 2 contains provisions that either repeal provisions of the WR Act or make other consequential amendments to that Act in order to accommodate the changes made by the RO Act.  It also corrects errors and omissions and removes obsolete references.

Schedule 3

Schedule 3 amends a number of other Commonwealth Acts to take account of changes made by the RO Act and the repeal of certain provisions of the WR Act

 

FINANCIAL IMPACT STATEMENT

 

The Bill is not expected to have any significant financial impact.



NOTES ON CLAUSES

 

The following abbreviations are used throughout these notes.

 

*Commission: Australian Industrial Relations Commission;

* WR Act: Workplace Relations Act 1996 ; and

* RO Act: Workplace Relations (Registered Organisations) Act 2001 .

Clause 1 - Short Title

This clause provides that this Act may be cited as the Workplace Relations (Registered Organisations) (Consequential Provisions) Act 2001.

Clause 2 - Commencement

This clause specifies when the various provisions of the Bill are to commence.

Subject to sub-clauses (2) to (4), this clause provides that, other than clauses 1,2 and 3 which come into affect on the day this Act receives Royal Assent, 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, whereby if a provision of 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.

Subclauses (2) and (3) provide that certain items in Schedule 3 are taken to have commenced immediately after the commencement of other Acts.  These items have a retrospective operation to rectify incorrect references to Acts or section numbers in Acts.

Subclause (4) provides that items 37 to 40 of Schedule 3 do not commence until the commencement of the later of Item 1 of Schedule 1 to this Act or item 1 of schedule 1 to the Financial Services Reform Act 2001 .

Clause 3 - Schedules

This clause provides that each Act specified in a Schedule to this Bill is amended or repealed as set out in the relevant items in that Schedule, and that any other item operates according to its terms.



Schedule 1 - Transitional Provisions

Schedule 1 is divided into 6 parts.  Part 1 sets out general transitional and saving rules, with Parts 2 to 6 dealing with exceptions to those general rules.

Part 1 - General

1.1               Part 1 contains general transitional provisions.

Item 1 - Definitions

1.2               Item 1 defines a number of terms used in the Act including:

·            ‘repealed provision’ to mean a reference to a provision of the WR Act repealed by this Act;.

·            ‘corresponding provision’ to mean a provision of the RO Act which has substantially the same effect as a provision of the WR Act which operated before it is amended by this Act, and vice versa; and

·            ‘commencement’ is defined as commencement of Item 1 of this Schedule.

1.3               Item 1 also provides that the expression used in this Schedule has the same meaning as it has in the RO Act.

Item 2 - Orders etc. continue in force

1.4               Item 2 would preserve the continuity of an authorisation, certificate, decision, declaration, determination, direction, exemption, injunction, order or permission made under the repealed provisions of the WR Act prior to commencement.  Any such order etc, continues in force on and after commencement as if it was made under the RO Act, for example:

·            a permission to keep records at specified premises granted under subsection 268(7) of the WR Act, is treated as a permission granted under subclause 223(3) of the RO Act.

Item 3 - Certain obligations to continue

1.5               Item 3 is intended to ensure the continuity of obligations imposed on a person or body under repealed provisions of the WR Act.  It provides that where an obligation is imposed for a specified period under a repealed provision of the WR Act, and that period has not expired immediately prior to commencement, the provision and resulting obligation continues to operate as if the provision had not been repealed.

Item 4 - Terms of office to continue

1.6               Item 4 is intended to ensure that the proposed repeal of certain provisions of the WR Act will not affect the continuity of tenure of a person elected to an office under the WR Act, by providing that the person continues to hold office for the remainder of the specified term. 

Item 5 - Proceedings commenced under WR Act to continue under WR Act

1.7               Item 5 deals with proceedings or matters commenced under a repealed provision of the WR Act.  Sub-items (1), (2) and (3) provide that in relation to any proceeding or a matter pending before a court, the Commission or the Industrial Registrar immediately prior to commencement, the WR Act will continue to operate.

1.8               Sub-item (4) is a deeming provision.  It provides that in relation to any proceeding or matter under sub-items (1),(2) and (3), any resulting order made after commencement is taken to have been made under the corresponding provision of the RO Act and not the WR Act (this reflects the rule in item 2).

1.9               However, sub-item (5) stipulates that in relation to any penalty imposed as result of such an order, the penalty is the penalty applicable under the WR Act as in force immediately before commencement and not the penalty applicable under the RO Act.

1.10           Under item 5, the word ‘order’ is defined to include “authorisation, certificate, decision, declaration, determination, direction, exemption, injunction, notice or permission”, and the word ‘make’ to include “give or grant” (sub-item (6)).

Item 6 - Pre-commencement WR Act continues for transitional purposes

1.11           Item 6 provides that if a repealed provision of the WR Act is saved by this Act, any provisions of the WR Act or regulations made under such provisions that are necessary for the effective operation of the repealed provision also continue to operate.

Item 7 - RO Act regulations may extend to transitional applications etc.

1.12           Section 338 of the RO Act enables the Governor General to make regulations for the purposes of that Act.  Subsection 338(2) provides a specific list examples of matters in relation to which regulations may be made, including the manner in which applications under the RO Act may be made and dealt with.

1.13           Item 7 extends the reference in section 338 to applications and proceedings under the RO Act to include references to any applications and proceedings which are subject to the RO Act, by virtue of this Act.

Item 8 - Power of President to resolve difficulties

1.14           Item 8 enables the President of the Commission to give directions to resolve any difficulty that may arise in the application of the Act to a particular proceeding or matter before the Commission.  However, such directions should not be inconsistent with the provisions of the RO Act and are subject to any order of the Federal Court made under item 9.

Item 9 - Power of Court to resolve difficulties

1.15           Item 9 provides the Federal Court with the power and the jurisdiction to make an order to resolve any difficulty that may arise in the application of this Act (or the application of the RO Act by operation of this Act) in relation to a particular matter upon application by a person with an interest in the matter.

1.16           Sub-item (2) provides that any such order has effect despite the Act or the RO Act or any Act in force immediately before commencement.

Item 10 - General rules are subject to specific rules

1.17           This item provides that any general rule in Part 1 is subject to specific rules in the following parts of this Schedule.

Part 2 - Registered Organisations

1.18           Part 2 contains specific transitional rules about registration, cancellation of registration, amalgamation, withdrawal from amalgamation, and representation orders.

Item 11 - Register of organisations

1.19           Under paragraph 63(1)(a) of the WR Act, the Industrial Registrar is required to keep a register of organisations.  Item 11 deems the register as it stood immediately before commencement to be the register of organisations required to be kept under paragraph 11(1)(a) of the RO Act.

Item 12 - Applications for registration

1.20            Where an application by an organisation for registration has been made but not determined prior to commencement, this item provides that the application is to be determined under the WR Act as if the amendments of this Act had  not been made.

Item 13 - Acts or omissions relevant to prohibited conduct

1.21           Sections 19 and 20 of the RO Act prohibit certain discriminatory conduct by employers and organisations designed to impede the formation and registration of an employee association.

1.22            Where an application for registration is to be determined under the WR Act by virtue of item 12, item 13 extends the operation of sections 19 and 20 of the RO Act to discriminatory conduct aimed at impeding the formation or registration of an employee association under the WR Act (but they do not apply to conduct that occurred before commencement).

Item 14 - Correction of errors in rules of association applying for registration

1.23           Where an application for registration is to be determined under the WR Act by virtue of item 12, item 14 enables the Commission to grant leave to an organisation under paragraph 24(1)(c) of the RO Act, not the corresponding provision of the WR Act, to correct a formal error in its rules.

Item 15 - Registration as an organisation continues

1.24            Item 15 is a deeming provision.

1.25           Sub-item (1) deems organisations registered under the WR Act to have been registered under the RO Act.  This does not otherwise affect the operation of the WR Act in relation to the organisation.

1.26           Similarly, under sub-item (2), an undertaking given by an organisation to the Commission to avoid a demarcation dispute under subsection 189(2) of the WR Act is deemed to be an undertaking given under subsection 17(2) of the RO Act.  As a result, an undertaking given under the WR Act would be enforceable under the RO Act.

1.27           Sub-item (3) ensures that certificates of registration or replacement certificates issued before commencement continue to be recognised under the RO Act.

Item 16 - Representation orders

1.28           Subsection 130(1) of the RO Act enables the Commission to make orders concerning the rights of employee organisations to represent the industrial interests of particular classes or groups of employees in settlement of a demarcation dispute (‘representation orders’).  Subsection 130(2) enables the Commission to vary such an order upon application by an organisation, employer or the Minister.

1.29           Sub-item 16(1) deems representation orders made under section 118A of the WR Act to be representation orders made under section 130 of the RO Act.  This will ensure, for example, that the power of the Commission to vary such an order extends to orders made before commencement.

1.30           Section 135 of the RO Act provides that an order giving exclusive representation rights to a registered employee organisations does not prevented a newly registered organisation from representing the industrial interests of a particular class or group of employee, provided that the organisation was registered after the representation order was made and the order does not expressly exclude organisations registered after the order. 

1.31           Sub-item 16(2) ensures that the operation of section 135 of the RO Act extends to representation orders made under section 118A of the WR Act by deeming them to be orders made under subsection 130 of the RO Act.

Item 17 - Applications for amalgamation

1.32           Section 242 of the WR Act enables the organisations seeking an amalgamation and the proposed amalgamated association to apply to the Commission for approval to submit the proposed amalgamation to a ballot of members.

1.33            This item provides that if the application was commenced under section 242 of the WR Act but not determined before commencement, the application is to be determined under the WR Act as if the amendments of this Act had not been made.  The note to this item alerts readers to the fact that there are exceptions to this general rule in relation to particular aspects of the disamalgamation process.

Item 18 - Applications for recognition as a federation

Item 19 - Applications for community of interest declaration

1.34           Items 18 and 19 make provision for dealing with applications made as part of the amalgamation process before commencement.

Item 20 - Amalgamation ballots approved after commencement

1.35            Where an application for submission of an amalgamation to ballot is approved by the Commission, and by virtue of item 17 the ballot is to be conducted under the WR Act, this item requires subsections 75 (6) and (7) of the RO Act to also apply.  These provisions require each completed ballot paper to be returned in the declaration envelope provided, and require the declaration envelope to be in the approved form.

1.36           To ensure clarity of operation, paragraph (b) provides that a reference in subsection 75(6) to a ballot conducted under that section is taken to include a reference to the ballot approved by the Commission.

Item 21 - Withdrawal from amalgamation - application made before commencement etc.

1.37           Section 253ZJ of the WR Act enables applications to be made to the Federal Court for a disamalgamation ballot.  This item provides that that if the application was commenced under section 253ZJ of the WR Act but not determined before commencement, Subdivision B of Division 7A of Part IX of the WR Act applies to the application and any ballot ordered as a result of the application, as if the amendments of this Act had not been made.  However, sub-item 21(2) requires certain provisions of the RO Act to also apply.  These are:

·            section 105 of the RO Act, which enables the Federal Court to allow specified persons to amend the disamalgamation application or take other action necessary to ensure the application complies with the requirements of that Act;

·            section 111 of the RO Act, which limits the constituent members of an amalgamated organisation who are eligible to vote in a disamalgamation ballot to financial members of the organisation and other prescribed  classes of members; and

·            subsections 112(2)(d) and (3) of the RO Act, which requires the ballot paper to be accompanied by a declaration envelope, and subsequently requires each completed ballot paper to be returned to the AEC in the declaration envelope provided.

Item 22 - Certified agreements made after withdrawal etc

1.38           Section 123 of the RO Act provides that for a period of five years following disamalgamation, a newly disamalgamated organisation automatically gains respondency to certified agreements made by its former host organisation under Division 2 of Part VIB of the WR Act or mentioned in subsection 5AA(2) and (3) of that Act.

1.39           Item 22 enables section 123 of the RO Act to operate, for a period of five years after commencement, with respect to newly registered organisations registered before commencement in relation to certified agreements made by the former host organisation after commencement.

Item 23 - Organisation not to penalise members in relation to withdrawal from amalgamation

1.40           Section 128 of the RO Act prohibits certain conduct designed to impede the pursuit of a withdrawal from amalgamation (reflecting section 253ZX of the WR Act).  Item 23 extends the operation of section 128 of the RO Act to conduct occurring on or after commencement (sub-item 23(1)).

1.41           Sub-item (2) provides that a reference in section 128 of the RO Act to section 127 of that Act is taken to include a reference to the corresponding provision in section 253ZX of the WR Act.  This has the effect of ensuring the prohibition in section 128 extends to conduct under the WR Act.

Item 24 - Withdrawal from amalgamation - application after commencement

1.42           Item 24 proposes to apply Part 3 of Chapter 3 of the RO Act (which relates to withdrawal from amalgamations) to organisations that became amalgamated under the WR Act.  References in that Part to provisions in the RO Act are, by operation of item 24, taken to include references to corresponding provisions of the WR Act.

Item 25 - Grounds for deregistration

1.43           Sections 28 - 32 of the RO Act provide grounds for an application for deregistration to be made.  Item 25 deals with the application of these sections to conduct occurring before commencement.

1.44           Sub-item (1) provides that an application for deregistration cannot be made in relation to conduct occurring before commencement on grounds set out in section 31 of the RO Act (failure to comply with an order of the Federal Court or State or Territory Supreme Court in relation to industrial action or a lockout) or subsection 32(c) of the RO Act (failure to comply with an order of the Federal Court under section 298U of the WR Act for breaches of the ‘freedom of association’ provisions in Part XA of the WR Act). This is to ensure that cancellation of registration cannot occur in relation to grounds that did not exist under the WR Act prior to commencement.

1.45           Conversely sub-item (2) provides that that an application for cancellation may be made under the RO Act in relation to conduct occurring before commencement on grounds set out in sections 29, 30 and 32(a) and (b) of the RO Act - all of which reflect existing provisions in the WR Act.

1.46           Sub-item (3) provides that although an application for cancellation in relation to conduct occurring before commencement can be made under section 28 of the RO Act, it can  only be made in relation to conduct preventing or hindering an object of the WR Act as it stood immediately before commencement, not an object of the RO Act.

Part 3 - Rules of organisations

1.47           Part 3 contains transitional provisions relevant to rules of an organisation.

Item 26 - Existing rules

1.48           Item 26 provides for the continuity in operation of rules of an organisation that were in force immediately before commencement and that these rules may be altered under the RO Act.  A note to this clause refers to item 26 as applying to rule changes that were in the process of being certified at commencement.

Item 27 - New rule requirements

1.49           Section 154 of the RO Act enables the Industrial Registrar to make alterations to the rules of an organisation to bring them into conformity with the requirements of that Act. 

1.50           Item 27 prevents the Industrial Registrar from exercising power under section 154 of the RO Act in relation to any new requirements imposed by the RO Act during an ‘interim period’ (sub-item 2).  This is to give organisations sufficient time to amend their rules to ensure compliance with the RO Act.

1.51           The interim period is 6 months after commencement or as extended by the Industrial Registrar upon application by an organisation (sub-item (3)).  The Industrial Registrar may extend the interim period in relation to an organisation for up to 6 months (sub-item (4)).  In deciding whether to grant an extension, the Registrar is required to take into account the ability of the organisation to change its rules within the initial 6-month period and any other matter the Registrar considers relevant (sub-item 27(5)).

1.52           Sub-item (1) clarifies that item 27 does not prevent the Industrial Registrar from exercising power under section 154 of the RO Act to ensure compliance with requirements of the WR Act as it stood immediately before commencement.

Item 28 - Review of rules by Industrial Registrar

1.53           Item 28 requires the Industrial Registrar to review the rules of an organisation as soon as practicable after the end of the interim period applying to that organisation under item 27.  A note to this clause reminds readers that under section 154 of the RO Act, the Industrial Registrar may alter the rules of an organisation to bring them in conformity with the requirements of the Act.

Item 29 - Rules relating to retirement age of office-holders

1.54           Paragraph 199(1)(b) of the WR Act enables the rules of an organisation to allow a full-time officer to remain in office beyond the end of his or her term until retirement age, where that age is to be attained within 12 months after the end of that term.  There is no equivalent provision in the RO Act.  Item 29 enables any such rules to continue in operation if the nominations for the election to the full-time office in question closed before the commencement.  If the nominations closed after commencement, those rules cannot apply.

1.55           A note to this item clarifies that despite the continued operation of the rules as to retirement age under this item, those rules must be removed during the applicable interim period under item 305 to ensure compliance with section 143 of the RO Act (which prohibit the extension of terms of office other than to allow for the synchronisation of elections).

Item 30 - Membership agreements between organisation and State union

1.56           Section 202 of the WR Act permits a federally registered union to enter into an agreement with a counterpart State registered union so as to enable the members of the State union who would otherwise be ineligible for membership of the federally registered union, to join that federal union as members.

1.57           Sub-item 30(1) enables an agreement made under section 202 of the WR Act that was in force immediately before commencement to continue in operation as if it was made under the RO Act.  However, if an agreement was lodged with the Industrial Registrar but had not come into force before commencement, the WR Act continues to apply (sub-item (2)).

1.58           Where both the federal and the State organisations agree to terminate the agreement made under this section, subsection 202(11) of the WR Act requires a copy of that termination agreement to be lodged with the Industrial Registrar.  If the termination agreement was lodged but had not yet taken effect before commencement, the WR Act continues to apply to it (sub-item (3)).

Item 31 - Certain alterations of rules to be recorded

1.59           Section 206 of the WR Act requires the Industrial Registrar to enter in the register of organisations details of changes in the name or an organisation or alterations of the eligibility rules, and the date and effect of the change or alteration.  If, before commencement, such a change or alteration was made under the WR Act but the Industrial Registrar had not yet entered the requisite details in the register, section 158 of the RO Act applies in relation to the change or alteration.

Item 32 - Evidence of rules

1.60           Section 159 of the RO Act enables the production of a copy of the rules of an organisation certified by the Registrar as evidence of those rules.  Item 32 extends the operation of this provision to copies certified under the WR Act

Part 4 - Membership of organisations

Item 33 - Resignation from membership

1.61           Section 264 of the WR Act enables a member of an organisation to resign by giving notice in writing and provides for the date on which the resignation is to take effect.  This item provides that if a notice was given but had not taken effect before commencement, section 264 continues to apply in relation to the resignation and any outstanding dues of the member.

Item 34 - Recovery of arrears

1.62           Section 176 of the RO Act imposes a 12-month limitation period on the recovery of arrears of membership dues and extinguishes the debt after that period.  Item 34 provides that section 176 only applies to amounts that become payable after commencement.  Sections 264A and 265 of the WR Act continue to apply to amounts that became payable before commencement.

Part 5 - Democratic Control

Item 35 - Elections for offices

1.63           Item 35 deals with elections for offices in an organisation or branch required to be conducted by the Australian Electoral Commission.  It provides that where a step in an election starts on or after commencement, the RO Act (other than section 186 or 195) applies in relation to that step.  Where a step in such an election, including the calling of nominations, has started but is not yet completed at commencement, the WR Act as in force immediately before commencement continues to apply to that step.

Item 36 - Elections completed before commencement

Item 37 - Inquiries into elections

Item 38 - Action after inquiries into elections

 

1.64           Where an election for office was commenced and completed under the WR Act before commencement, item 36 preserves the operation of the WR Act in relation both to the election and to any inquiry into it. 

1.65           However, if by operation of item 36 an inquiry is conducted under the WR Act, any order of the Federal Court as a consequence of the inquiry, including an order that a new election be held, is taken to be subject to the operation of the RO Act (item 38).

1.66           Item 37 makes it clear that the power of the Electoral Commissioner to apply for an election inquiry under section 198 of the RO Act applies in relation to elections any step of which occurred after commencement.

Item 39 - Post election report by Australian Electoral Commission

1.67           Section 195 of the RO Act requires the Australian Electoral Commission to provide a post-election report detailing certain prescribed matters.  This item restricts the operation of section 195 to elections where every step in the election, including the calling of nominations, occurs on or after commencement.

Item 40 - Applications for leave to hold office

1.68           Section 229 of the WR Act enables an application to the Federal Court for leave to hold office to be made by a prospective office holder who, in the preceding 5 years, has either been convicted of a prescribed offence or released from imprisonment for the prescribed offence.  Section 230 also enables an application for leave to hold office to be made by an existing officer holder who becomes convicted of a prescribed offence.

1.69           Sub-item 40(1) provides for the continuation of the operation of the WR Act in respect of applications made under section 229 or 230 of the WR Act but not determined at commencement.

1.70           Sections 213 and 214 of the RO Act correspond to sections 229 and 230 of the WR Act, respectively.  Subsections 213(4) and 214(4) of the RO Act prevent applications by someone who has already made an application in relation to the same conviction.  By operation of sub-items 40(2) and (3), this prohibition extends to past applications made in respect of the same conviction under corresponding provisions of the WR Act.

Item 41 - Prescribed offences

1.71           Part 4 of Chapter 7 of the RO Act deals with the eligibility of a person convicted of a prescribed offence to stand for, or hold, office in an organisation.

1.72           Section 209 of that Act defines ‘prescribed offence’, for which upon conviction a person may be disqualified from holding office in an organisation.  Item 41, extends the definition of prescribed offence in section 209 to included offences specified in section 227 of the WR Act as in force at commencement.

Item 42 - Certain persons disqualified from holding office in organisations

1.73           Section 212 of the RO Act prohibits a person who has been convicted of a prescribed offence from seeking election or from being elected or appointed to an office unless certain conditions are satisfied.  This item ensures that decisions of the Court under section 228 of the WR Act (which is equivalent to section 212 of the RO Act) in respect of disqualification from holding office continue to apply under the RO Act.

Part 6 - Records, accounts and conduct of officers

Item 43 - Records to be kept and lodged by organisations

1.74           Item 43 is a deeming provisions which is designed to ensure continuity in relation to registers of membership and other lists required to be kept by organisations.  Sub-item (1) provides that the register of membership required to be kept under the WR Act is taken to be the register of membership required to be kept under section 219 of the RO Act.

1.75           Similarly, the list of offices in an organisation and the list of names, addresses and occupations of officeholders required to be kept under the WR Act is taken to be the corresponding lists required to be kept under section 219 of the RO Act (sub-item (2)).

1.76           Sub-item (3) limits the operation of the civil penalty provisions to contraventions of sections 219 and 220 of the RO Act (certain records to be held for 7 years), to contraventions that occur on or after commencement.

1.77           Sub-item (4) limits the operation of section 221 of the RO Act (which prohibits interference with the register of members or a copy of it) to interference that occurs on or after commencement.

Item 44 - Loans, grants and donations

1.78           Section 226 of the RO Act requires an organisation to lodge in the Industrial Registry a statement detailing each loan, grant and donation over $1,000 within 90 days after the end of each financial year.  Under item 44, this requirement does not apply to any organisation until the first financial year that starts on or after commencement.  The corresponding requirement in section 269 of the WR Act continues to apply to the financial year that had started but no yet ended at commencement.

Item 45 - accounts and audit - application of Part 3 of Chapter 8 of the RO Act

1.79           Part 3 of Chapter 8 of the RO Act prescribes the financial accounting and auditing requirements of organisations. 

1.80           Other than the provisions of the Act dealing with determination by the Industrial Registrar of reporting units and the issuing of reporting guidelines by the Industrial Registrar, which apply from commencement, all provisions of Part 3 apply from the first financial year of an organisation starting after commencement of the reporting guidelines (sub-item 45(1)).

1.81           The operation of Division 2 of Part 3 is designed to enable organisations to put reporting structures in place in advance of the application of the reporting guidelines.  Accordingly, sub-items 45(3) to (6) provide that any certificate issued under s. 234 or revoked under section 238 of the RO Act and any alteration of rules that is determined or certified under sections 235, 236 or 238, do not take effect until the first financial year of an organisations starting after commencement of the reporting guidelines

1.82           This item also defines ‘transition period’ - as the period between commencement of Item 1 of Schedule 1 of this Act and the first financial year of an organisation that starts after commencement of the reporting guidelines.

Item 46 - Accounting records

1.83           This item is a deeming provision.  It is designed to ensuring continuity of accounting records by setting out the basis on which the accounting records of an organisation or branch under the WR Act become the financial records of a reporting unit under the RO Act. 

Item 47 - Members’ access to accounting records

1.84           Division 7 of Part 3 of Chapter 8 sets out the process and conditions whereby members may access prescribed information concerning the affairs of their reporting unit upon application to the Registrar, or access the financial records of their organisations upon application to the Commission.

1.85           Due to the fact that Part 3 of Chapter 8 of the RO Act does not come into operation until the first financial year after commencement of the reporting guidelines, item 47 creates a substitute Division 7 of Part 3 of Chapter 8 of the RO Act that operates during the transition period, to enable members to have appropriate access to financial records of their organisation or branch.  Substitute Division 7 of Part 3 operates on the same basis as Division 7 of Part 3 of Chapter 8 of the RO Act except that it refers to:

·            ‘accounting records’ as defined in section 4 of the WR Act instead of ‘financial records’;

·            ‘organisation’ within the meaning of the WR Act instead of ‘reporting unit’;

·            ‘accounts prepared under section 273 of the WR Act’ instead of ‘general purpose financial reports’; and

·            ‘Division 11 of Part IX of the WR Act’ and ‘regulations made for the purposes of that Division’ instead of ‘Part 3 of Chapter 8’, ‘regulations made for the purposes of that Part’ and ‘reporting guidelines’.

1.86           Item 47 also ensures that the provisions apply to branches of organisations (on the same basis as under the WR Act).

Item 48 - Accounts and audit - continued application of Division 11 of Part IX of the WR Act

1.87           This item is a saving provision.  It provides that the Division 11 of Part IX of the WR Act relating to accounts and audits continues to have effect in relation to a financial year spanning the transition period.

1.88           Sub-item 48(2) provides that the provisions of section 280 of the WR Act relating to investigations by the Industrial Registrar continue to apply in relation to investigations started under the WR Act but not completed prior to commencement.

Item 49 - Inquiries and investigations - transitional operation

1.89           Part 4 of Chapter 10 of the RO Act confers upon the Industrial Registrar or Registry officials certain powers to make inquiries and investigate matters under the RO Act.  Due to the fact that Part 4 of Chapter 10 of the RO Act does not apply until the first financial year of an organisation starting after commencement of the reporting guidelines, this item creates a substitute Part 4 of Chapter 10 of the RO Act that operates during the transition period.  This is to enable the Industrial Registrar to make inquiries and investigate matters on or after commencement of the RO Act irrespective of when the conduct being investigated occurred.

1.90           Substitute Part 4 of Chapter 10 operates on the same basis as Part 4 of Chapter 10 of the RO Act except that it make appropriate references to the WR Act rather the RO Act, including by substituting references to

·            ‘Division 11 of Part IX of the WR Act’ and ‘regulations made for the purposes of that Division’ with references to ‘Part 3 of Chapter 8’, ‘regulations made for the purposes of that Part’ and ‘reporting guidelines’; and 

·            ‘organisation’ with references to ‘reporting unit’.

The purpose of substitute Part 4 of Chapter 10 is to ensure that the Industrial Registrar is empowered to monitor compliance with financial requirements of the WR Act during the transition period, and to investigate and, where necessary, enforce those civil penalty provisions that come into operation at commencement of the RO Act.

Item 50 - Inquiries and investigations - conduct occurring on or after commencement of the reporting guidelines

1.91           Item 50 clarifies that Part 4 of Chapter 10 of the RO Act only applies in relation to conduct occurring in a financial year of an organisation starting on or after commencement of the reporting guidelines.

Part 7 - Miscellaneous

Part 7 proposes a number of distinct amendments primarily of a technical nature.

Item 51 - Requests by members under section 288 of the WR Act

1.92           Section 288 of the WR Act 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. 

1.93           Item 51 provides that where a request was made under section 288 of the WR Act but not complied with before commencement, the WR Act continues to apply.

Item 52 - List of officers to be evidence

1.94           Section 292 of the WR Act provides that a list of officers of an organisation or branch lodged on behalf of an organisation in the Industrial Registry 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.  Item 52 enables such a list lodged, or copy certified, before commencement to continue to be evidence that the persons named in the list were officers at the time of lodgement after commencement.

Item 53 - Authorisation of financial assistance

1.95           This item ensures that provisions of the WR Act relating to the granting of financial assistance in relation to proceedings under that Act continue to have effect in any proceeding started under that Act before commencement.

Item 54 - Delegations

1.96           Item 54 enables delegations made under a repealed provision of the WR Act to continue to operate after commencement as if made under the corresponding provision of the RO Act provided the delegation was in force immediately before commencement and did not end at that time.

Item 55 - Regulations may deal with other transitional matters

1.97           Item 55 enables regulations to be made about matters of a transitional, application or saving nature relating to amendments made to the WR Act by this Act or to the enactment of the RO Act.  A regulation under this item may have retrospective application except to the extent that the rights of a person are adversely affected or a liability is imposed.



SCHEDULE 2 - AMENDMENTS OF WORKPLACE RELATIONS ACT 1996

2.1               Schedule 2 makes amendments to the WR Act, consequential upon the commencement of the RO Act and the removal of provisions of relevant provisions from the WR Act.

2.2               A number of amendments insert references to the RO Act or substitute references to provisions of the WR Act with references to provisions of the RO Act.

2.3               Other amendments repeal provisions of the WR Act (for example, Divisions 1 to 11 of Part IX of the WR Act). 

2.4               Some items make amendments consequential upon the enactment of the RO Act.  For example, item 81 adds a definition of ‘matter’ to include a proceeding arising under the RO Act.  Other items seek to remove obsolete references or to correct technical errors

2.5               The schedule also inserts two substantive provisions in the WR Act:

·            Section 45A - sets out the process and scope for appeals to the Full Bench of the Commission in relation to a decision or order of a member of the Commission relating to matters arising under the RO Act (item 44); 

·            Section 174A - replicates section 174 in allowing the President of the Commission to refer a demarcation dispute to a State authority to be investigated and dealt with under the WR Act (item 86).

 



SCHEDULE 3 - AMENDMENTS OF OTHER LEGISLATION

3.1               Schedule 3 makes amendments to other Commonwealth legislation that are consequential to the enactment of the RO Act and the repeal of provisions of the WR Act.

3.2               Items 2, 22, 26, 28, 33, 37, 38, 39, 40, 41, 42, 43, 44, 45, 49, 50, 52, 56, 58, 59, 60, 61 and 62 omit references to the ‘ Workplace Relations Act 1996 ’ and substitute references to the ‘ Workplace Relations (Registered Organisations) Act 2001 ’, in the following Acts:

Builders Labourers’ Federation (Cancellation of Registration - Consequential Provisions) Act 1986

Commonwealth Authorities and Companies Act 1997

Crimes Act 1914

Disability Discrimination Act 1992

Equal Opportunity for Women in the Workplace Act 1999

Federal Court of Australia Act 1976

Human Rights and Equal Opportunity Commission Act 1986

Insurance Act 1973

Jurisdiction of Courts (Cross-vesting) Act 1987

Life Insurance Act 1995

Navigation Act 1912

Petroleum (Submerged Lands) Act 1967

Sex Discrimination Act 1984

Superannuation Act 1976

Superannuation Industry (Supervision) Act 1993

United States Naval Communication Station (Civilian Employees) Act 1968

3.3               Item 14 omits references to ‘that Act’ and substitute references to the ‘ Workplace Relations (Registered Organisations) Act 2001 ’ in the Builders Labourers’ Federation (Cancellation of Registration - Consequential Provisions) Act 1986 .

3.4               Items 6 and 17 omit references to specific provisions of the Workplace Relations Act 1996 and substitute references to specific sections of the Workplace Relations (Registered Organisations) Act 2001 , in the Builders Labourers’ Federation (Cancellation of Registration - Consequential Provisions) Act 1986 .

3.5               Items 51, 53 and 54 insert a reference to the Workplace Relations (Registered Organisations) Act 2001 , in the following Acts:

Jurisdiction of Courts (Cross-vesting) Act 1987

Long Service Leave (Commonwealth Employees) Act 1976

National Crime Authority Act 1984

3.6               Item 46 adds a reference to an order made under specific provisions of the Workplace Relations (Registered Organisations) Act 2001 , in the Federal Court of Australia Act 1976 .

3.7               Items 1, 9 and 13 omit references to the ‘ Workplace Relations Act 1996 ’ and substitute references to the ‘ Workplace Relations Act 1996 or the Workplace Relations (Registered Organisations) Act 2001 ’ in the following Acts:

Administrative Decisions (Judicial Review) Act 1977

Builders Labourers’ Federation (Cancellation of Registration - Consequential Provisions) Act 1986

3.8               Items 4, 5, 8, 10, 11, 12, 15, 16, 19, 21, 24, 25, 27 and 57 omit references to the ‘Industrial Relations Act’ and substitute references to the ‘Workplace Relations Act’, in the following Acts:

Builders Labourers’ Federation (Cancellation of Registration - Consequential Provisions) Act 1986

Occupational Health and Safety (Commonwealth Employment) Act 1991

3.9               Items 18, 29, 47 and 55 change the reference to section numbers or add a reference to a specified provision or substitute words, in the following Acts:

Builders Labourers’ Federation (Cancellation of Registration - Consequential Provisions) Act 1986

Federal Court of Australia Act 1976

National Crime Authority Act 1984 .