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Workplace Relations Amendment (Registration and Accountability of Organisations) Bill 2002

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2002

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

SENATE

 

 

 

 

 

 

WORKPLACE RELATIONS AMENDMENT (REGISTRATION AND ACCOUNTABILITY OF ORGANISATIONS) BILL 2002

 

 

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 and Workplace Relations, the Honourable Tony Abbott MP)



WORKPLACE RELATIONS AMENDMENT (REGISTRATION AND ACCOUNTABILITY OF ORGANISATIONS) BILL 2002

OUTLINE

The Act will establish a ‘Registration and Accountability of Organisations Schedule’ within the Workplace Relations Act 1996 (the WR Act) pertaining to registered organisations.

In particular, the Act proposes to:

(a)           incorporate as a schedule of the WR Actall 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 Registration and Accountability of Organisations Schedule.

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

Many of the provisions relating to registered organisations in the WR Act will be replicated in the new Registration and Accountability of Organisations Schedule, with some amendments.

However, the provisions relating to registration, amalgamation and disamalgamation of organisations, the processes for conducting elections for offices in registered organisations and the financial accounting and reporting responsibilities of organisations will be altered.  In particular, amendments in 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;

·     make technical improvements for making applications to withdraw from an amalgamation of two or more organisations and provide in the Schedule for matters currently dealt with by the Workplace Relations Regulations;

·     align financial accounting and reporting requirements of organisations with those applicable under the Corporations Act, 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 broadly in line with those that apply to company directors and employees under the Corporations Act;

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

·     require organisations to regularly purge their records of non-financial members so as to improve records used for industrial elections and reporting purposes;

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

·     allow for regulations to be made to require employers to provide information to employees 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 with civil penalties, whilst retaining criminal penalties for the most serious breaches; and

·     bring offence provisions into line with other Commonwealth legislation.

The new Registration and Accountability of Organisations Schedule will be made up of 11 Chapters:

Chapter 1 contains the principal objects of the Schedule and definitions.  The principal objects of the Schedule are:

·      to ensure that employee and employer organisations registered under the Schedule are representative of and accountable to their members, and are able to operate effectively;

·      to encourage members to participate in the affairs of organisations to which they belong;

·      to encourage the efficient management of organisations and high standards of accountability of organisations to their members; and

·      to provide for the democratic functioning and control of organisations.

Chapter 2 deals with the registration and cancellation of registration of organisations of employers and employees.  It provides for:

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

·      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 has engaged in industrial action having a substantial adverse effect on the safety, health or welfare of the community;

·      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; and

·      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.

Chapter 9 sets out the duties of officers and employees of organisations in relation to the financial management of an organisation or branch. 

Chapter 10 sets out penalties for contravention of civil penalty provisions, orders that the Federal Court may make, and who may apply for these orders.

Chapter 11 deals with miscellaneous matters, including:

·      validation of certain otherwise invalid acts;

·      financial assistance for applicants in proceedings under the Registration and Accountability of Organisations Schedule in cases of hardship;

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

·      the power to make regulations.

FINANCIAL IMPACT STATEMENT

The amendments in 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

 

Clause 1 - Short Title

1.1                     This clause is a formal provision specifying the short title of the Act as the Workplace Relations Amendment (Registration and Accountability of Organisations) Act 2002 .

Clause 2 - Commencement

1.2                     This clause sets out a table, the effect of which will be that, other than clauses 1 to 3, (which will commence on the day on which the Act receives Royal Assent), the remaining provisions of the Act will come into operation on a single day to be fixed by Proclamation.  Subclause (3) provides a default commencement date for these remaining provisions.  If they have not commenced within 6 months of the date that the Act receives the Royal Assent, they will commence on the first day after that period.

Clause 3 - Schedule(s)

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



SCHEDULE 1 - AMENDMENT OF THE WORKPLACE RELATIONS ACT 1996

Schedule 1 to the Act amends the WR Act by inserting:

·       a new section 4A to provide that the new Schedule 1B has effect (item 1 refers); and

·       a new Schedule 1B after Schedule 1A of the WR Act (item 2 refers).

SCHEDULE 1B - REGISTRATION AND ACCOUNTABILITY OF ORGANISATIONS

The new Schedule 1B contains all the substantive provisions of the Bill, as follows:

CHAPTER 1 - OBJECTS OF SCHEDULE AND GENERAL PROVISIONS

Clause 1 - Simplified outline of Chapter

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

Clause 5 - Objects of Schedule

1.2               This clause sets out the principal objects of the Schedule.  These are designed to:

·      ensure that employee and employer organisations registered under this Schedule are representative of and accountable to their members, and are able to operate effectively;

·      encourage members to participate in the affairs of organisations to which they belong;

·      encourage the efficient management of organisations and high standards of accountability of organisations to their members; and

·      provide for the democratic functioning and control of organisations.

1.3               The note to this clause makes it clear that the WR Act contains many provisions that affect the operation of the Schedule.

Clause 5A - Schedule binds the Crown

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

Clause 6 - Definitions

1.5               This clause defines a number of terms used in the Schedule.

Clause 6A - References to provisions in this Schedule

1.6               This clause makes it clear that, unless a contrary intention is evident, a reference to a provision means a reference to a provision in the Schedule.

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 Schedule 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, may be induced to do an act or refrain from doing an act; or

·      a computer or other device should respond to the false or altered document as a genuine document to the prejudice of another person or with the result that a person is induced to do or refrain 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 - Actions and opinions of AEC

1.14           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 12 - Membership of organisations

1.15           This clause provides that a reference to persons eligible to be members of an organisation include those eligible to be members by virtue of an agreement between a federally registered organisation and a state union under subclause 151(1).  This reflects subsection 4(5) of the WR Act.

Clause 13 - Functions of the Industrial Registry

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

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

1.18           The obligation to enter particulars in the register is set out in clause 26.

Clause 14 - President may establish Organisations Panel

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

Clause 15 - Disapplication of Part 2.5 of Criminal Code

1.20           This clause provides that Part 2.5 of the Criminal Code, which deals with corporate responsibility, does not apply to offences against this Schedule.  Note 1 to this clause refers to the definition of “this Schedule” in section 6 as including regulations made under it.  Note 2 refers to clause 344, which deals with corporate responsibility for the purposes of the Registration and Accountability of Organisations Schedule.

Clause 16 - Operation of offence provisions

1.21           This clause explains the operation of the 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 - REGISTRATION AND CANCELLATION OF REGISTRATION

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 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.

2.3                     Chapter 2 of the Schedule is designed to simplify the registration process for organisations in order to facilitate the registration of a diverse range of organisations thereby providing greater choice.

Part 1 - Simplified outline of Chapter

Clause 17 - Simplified outline

2.4                     This clause provides an outline of the contents of the Chapter.

Part 2 - Registration

2.5                     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 18 - Employer and employee associations may apply

2.6                     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.

2.7                     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.

2.8                     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.

2.9                     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 subclause 18(3), namely, persons who are deemed to be employees under specified State laws.

2.10                 However, where persons coming within the last two mentioned categories are members, the association must, under subclause 18(2), be effectively representative of the members who are employees.

2.11                 This clause replicates section 188 and Schedule 3 of the WR Act.

Division 2 - Registration criteria

Clause 19 - Criteria for registration of associations other than enterprise associations

2.12                 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 20.

2.13                 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 18 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 Registration and Accountability of Organisations Schedule and the WR Act (having regard, under subclause (4), as to whether any recent conduct by the association or its members would have provided grounds for its de-registration under clause 28 had the association been registered at the time the conduct took place);

·      the rules of the applicant association meet the requirements of the Registration and Accountability of Organisations Schedule (the rules of organisations are dealt with in Chapter 5 of the Schedule);

·      the name of the association is not the same, or confusingly similar to that of an organisation registered under the Registration and Accountability of Organisations Schedule;

·      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 Registration and Accountability of Organisations Schedule 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 Registration and Accountability of Organisations Schedule and the WR Act).

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

Clause 20 - Criteria for registration of enterprise associations

2.15                 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 below 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 or any person with an interest in the enterprise or any organisation;

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

·      the Commission is satisfied that the association will conduct its affairs in a manner that meets the obligations of an association under the Registration and Accountability of Organisations Schedule and the WR Act (having regard, under subclause (2), to whether any recent conduct by the association or its members would have provided grounds for its de-registration under clause 28 had the association been registered at the time the conduct took place);

·      the rules of the applicant association must meet the requirements of the Registration and Accountability of Organisations Schedule (the rules of organisations are dealt with in Chapter 5 of the Registration and Accountability of Organisations Schedule);

·      the name of the association is not the same, or confusingly similar to that of an organisation registered under the Registration and Accountability of Organisations Schedule;

·      the Commission is satisfied 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 members at a general meeting or by an absolute majority of the committee of management; and

·      the registration of the association would further the objects of the Registration and Accountability of Organisations Schedule and the WR Act.

2.16                 New subclause 20(1A) will address a decision by the Australian Industrial Relations Commission (AIRC) that found that the Suncorp-Metway-QIDC Enterprise Union (SMQEU) was ineligible for registration on the basis that, among other things, the SMQEU was not free from ‘control or improper influence from…a person with an interest in the enterprise’.  This was due to the fact that members of the SMQEU, including members of its committee of management, held shares in the enterprise and therefore had an interest in the enterprise. 

2.17                 This new subsection makes it clear that the mere holding of an interest in an enterprise in question by members of the association is not, in itself, sufficient to determine that the enterprise association breaches the requirement in paragraph 20(1)(b).  Rather, the focus is on whether the enterprise association is free from control by, or improper influence from the person or organisation.

2.18                 New subclause 20(1B) provides that the Commission must take into account whether any of the costs or expenses of an association are met by an employer when considering whether the association is free from control by, or improper influence from the employer.

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

2.19                 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 21 - Prohibited conduct - employers

2.20                 This clause proscribes the following conduct by employers in relation to employees or independent contractors 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)).

2.21                 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.

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

Clause 22 - Prohibited conduct - organisations

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

2.24                 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 21.

2.25                 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 21(3).

2.26                 Subclause (4) adopts the list of examples given in subclause 21(4) as examples of conduct to which subclause (3) applies.

2.27                 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 23 - Powers of Federal Court in relation to prohibited conduct

2.28                 This clause gives the Federal Court the power to make orders in respect of contraventions of clauses 21 and 22. 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;

·      injunctions and any other orders that the Court considers necessary to stop the conduct or remedy its effects.

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

Clause 24 - Certain actions considered to be done by organisation or employer

2.30                 This is a deeming provision.  Paragraph (1)(a) deems actions by certain bodies and persons to be actions by an organisation.  Subclause (2) provides that the deeming provision does not operate where in certain cases an appropriate person (as specified) in the organisation has taken reasonable steps to prevent the action.

2.31                 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 25 - Applicant for registration may change its name or alter its rules

2.32                 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 Registration and Accountability of Organisations Schedule (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.

2.33                 Sub-clause (3) provides that rule alterations under subclause (1) are binding on members.

Clause 26 - Registration

2.34                 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.

2.35                 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 27 - Incorporation

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

Part 3 - Cancellation of registration

2.37                 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 certain technical grounds.  It also deals with the consequences of cancellation.

Clause 28 - Application for cancellation of registration

2.38                 This clause 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.

2.39                 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.

2.40                 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, 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.

2.41                 Subclause (2) requires an organisation to be given an opportunity to be heard in relation to which an application is made under subsection (1).

2.42                 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.

2.43                 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 has power to alter the rules of the organisation 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.

2.44                 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.

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

Clause 29 - Orders where cancellation of registration deferred

2.46                 Under this clause, the 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.  Subclause (2) sets out the powers which may be exercised by the Court; by order, the Court can:

·      suspend the rights, privileges or capacities of the organisation or of all or any of its members in that capacity under federal Acts or awards or orders of the Commission;

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

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

2.47                 Subclause (3) provides for the deferral, where such powers are exercised, of the Court’s determination as to whether the registration of the organisation should be cancelled.  Subclause (4) provides that orders made under subclause (2) override any inconsistent rules of the organisation or branch.  The duration of such orders is dealt with in subclause (5).

Clause 30 - Cancellation of registration on technical grounds etc.

2.48                 Subclause (1) provides that the Commission may cancel the registration of an organisation in various circumstances.  These cover:

·      an application by an organisation in accordance with the regulations for its registration to be cancelled;

·      the organisation being registered by mistake or ceasing to be effectively representative of members who are employers or employees;

·      an organisation not being free from control by, or improper influence from, an employer,  an association or organisation of employers or employees, or a person with an interest in the enterprise;

·      in the case of an enterprise union, the enterprise to which it relates has ceased to exist (subclauses (5) and (6) further explain the circumstances in which this would occur; the Commission is required to give the organisation a reasonable opportunity to alter its rules before considering cancelling its registration on this ground); and

·      the organisation is defunct or, in the case of an organisation of employees, the organisation no longer satisfies the minimum membership requirements.

2.49                 Subclause (2) requires the Commission to give the organisation whose registration is to be cancelled an opportunity to be heard, other than where the organisation is the applicant.

2.50                 Subclause (3) provides that the Commission may cancel the registration of an organisation if the Commission is satisfied that the organisation has breached an undertaking referred to in subclause 19(2) and the Commission does not consider it appropriate to amend the eligibility rules of the organisation under clause 157.  Subclause (4) sets out who may seek an order for cancellation under subclause (3).

Clause 31 - Cancellation to be recorded

2.51                 This clause requires the Industrial Registrar to record the cancellation of registration of an organisation and the date of cancellation in the register of organisations.

Clause 32 - Consequences of cancellation of registration

2.52                 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 33 - Powers exercisable by Presidential Member

2.53                 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 of organisations and withdrawal from amalgamations.

Part 1 - Simplified outline of Chapter

Clause 34 - 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 35 - Definitions

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

Clause 36 - 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 Registration and Accountability of Organisations Schedule in implementing the scheme for the proposed amalgamation.

Clause 37 - 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 38 - 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 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 44, 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 Registration and Accountability of Organisations Schedule or the WR Act; for instance, by representing them in proceedings before the Commission or the Federal Court.  However, a federation may not be a party to an award or 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 44 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 Registration and Accountability of Organisations Schedule 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 39 - 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 purpose relating to the 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 40 - 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 42) and lodged (clause 44).  The scheme may be altered or amended (clause 61).

Clause 41 - 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 that must be included in a scheme which provides for an alternative amalgamation.

Clause 42 - 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 by the committee of management of an organisation to the alteration of the scheme of proposed amalgamation or to the organisation’s rules.

3.27                 The subsection provides that the following approvals may be given even though a different procedure for such approvals is set out in the organisation’s existing rules:

·      to avoid delay, a committee of management of an organisation may approve the scheme of a proposed amalgamation, 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. 

Clause 43 - Community of interest declaration

3.28                 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.

3.29                 Subclause (1) permits an application to be made for a community of interest declaration.  The time for making an application is specified in subclause (2).  It may be made before or at the same time as the lodging under clause 44 of an application for an approval for the submission of an amalgamation to ballot.

3.30                 Subclause (3) requires the Commission to arrange for a hearing in relation to the application for a declaration before the application under clause 44.  Under clause 54, 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. 

3.31                 Where an application for a community of interest declaration is lodged with an application (for an amalgamation ballot under clause 44), the hearing is to be conducted under clause 53.

3.32                 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. 

3.33                 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 meet one of the criteria set out in subclause 43(5) or 43(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.

3.34                 Subclause (8) provides that a declaration of community of interest will lapse if, having been made in anticipation of an application under clause 44, no such application is made within 6 months.  This is not intended to prevent further applications for a declaration of a community of interest.

3.35                 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.

3.36                 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 44 - Application for approval for submission of amalgamation to ballot

3.37                 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.

3.38                 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.

3.39                 Subclause (2) requires the application to be accompanied by the scheme for the amalgamation (see notes on clause 40) and an outline of the scheme.  The outline is intended to be a simple explanation of the amalgamation. 

3.40                 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 45 - Holding office after amalgamation

3.41                 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 Registration and Accountability of Organisations Schedule; 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.

3.42                 Subclause (1) excludes the normal requirement under clause 143 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 amalgamation takes effect.

3.43                 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 for longer than the unexpired part of the term of office without an ordinary election being held in relation to the office.

3.44                 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.

3.45                 Subclause (4) excludes the ordinary time limits under clause 145.

3.46                 Subclause (5) provides for the ordinary requirements of clause 146 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 46 - Application for exemption from ballot

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

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

3.49                 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 56.

Clause 47 - Application for ballot not conducted under section 65

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

3.51                 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 65 (clause 64 sets out the criteria for such an alternative ballot).

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

Clause 48 - Lodging ‘‘yes’’ case

3.53                 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.

3.54                 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 60, material other than words may be permitted to be included in the statement.

3.55                 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 49 - Ballots to be conducted by AEC

3.56                 This clause requires all amalgamation ballots under Part 2 of Chapter 3 to be conducted by the Australian Electoral Commission.  Under clause 71, the Commonwealth bears the cost of such ballots.

Clause 50 - Notification of AEC

3.57                 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.

3.58                 Subclause (1) requires the Industrial Registrar to notify the Australian Electoral Commission at once when an application is lodged under clause 44 for approval for the submission of the amalgamation to ballot.

3.59                 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.

Clause 51 - Providing information etc. to electoral officials

3.60                 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.

3.61                 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).

3.62                 Subclause (3) provides that the offence in subclause (2) is a strict liability offence.

3.63                 Subclause (4) provides that subclause (2) does not apply if the person has a reasonable excuse.  In accordance with drafting practice, a legislative note makes it clear that the defendant bears the evidentiary burden with respect to that defence.

3.64                 Subclause (5) 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.

3.65                 However, subclause (6) 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 not admissible against that person in criminal proceedings or proceeding which may expose the person to a penalty, other than proceedings under subclause 52(3).

3.66                 Subclause (7) 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 52 - Declaration by secretary etc. of organisation

3.67                 This clause is a new provision.  It provides that, if an electoral official makes a request under subclause 51(1) in relation to a register of members of an organisation or part of it (required to be kept under clause 230), 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 230(2).

3.68                 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)).

3.69                 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

3.70                 Division 5 provides for the steps to be taken from the lodging of an application under clause 44 for approval of the submission of the amalgamation to ballot up to the declaration of the result of any such ballot.

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

Clause 53 - Fixing hearing in relation to amalgamation etc

3.72                 Paragraph (a) requires the Commission, upon the lodging of an application under clause 44, 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 of interest declaration under clause 43 or an application for an exemption from a ballot under clause 46 or an amalgamation ballot other than by secret postal ballot under clause 65).

3.73                 Paragraphs (b) and (c) provide for the notification of organisations and other interested persons of the hearing.

Clause 54 - Submissions at amalgamation hearings

3.74                 This clause enables applicants to make submissions at a hearing of applications, arranged under subclause 43(3) or clause 53.  Other persons may only make submissions by leave of the Commission and on matters prescribed in the regulations.

Clause 55 - Approval for submission to ballot of amalgamation not involving extension of eligibility rules etc.

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

3.76                 Subclause (1) sets out the criteria that must be met before approval by the Commission to proceed to a ballot under this clause following a hearing under clause 53:

·      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 Registration and Accountability of Organisations Schedule or the WR Act, awards, certified agreements or old IR agreements, nor will they be contrary to the general law; and

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

3.77                 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).

3.78                 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 (5) does not limit the powers of the Commission.

3.79                 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 56 - Objections in relation to amalgamation involving extension of eligibility rules etc.

3.80                 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 55.

Clause 57 - Approval for submission to ballot of amalgamation involving extension of eligibility rules etc.

3.81                 Under this clause, where any objections made under clause 56 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.

3.82                 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 55 are met.

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

3.84                 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.

3.85                 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.

3.86                 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.

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

3.88                 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 57(9)).

Clause 58 - Fixing commencing and closing days of ballot

3.89                 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.

3.90                 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)).

3.91                 Other provisions are made under subclauses (3) to (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 59 - Roll of voters for ballot

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

3.93                 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.

3.94                 The early involvement under clause 51 of the Australian 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 60 - “Yes” case and “no” case for amalgamation

3.95                 This clause deals with a statement supporting a proposed amalgamation (a ‘yes case’ statement), which may be lodged with the Industrial Registry, 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).

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

3.97                 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 44), whichever is the lesser).

3.98                 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 2,000 words.

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

3.100             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)).

3.101             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 2,000 words, based on all the ‘no case’ statements lodged (subclause (5)).  This is to be done, where practicable, 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).

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

3.103             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 Registration and Accountability of Organisations Schedule or regulations.

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

Clause 61 - Alteration and amendment of scheme

3.105             This clause enables alterations and amendments to be made to a proposed amalgamation scheme.  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.

3.106             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.

3.107             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.

3.108             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.

3.109             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.

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

3.111             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.

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

Clause 62 - Outline of scheme for amalgamation

3.113             This clause should be read with subclauses 44(2) and (3), which require an outline of the scheme, not exceeding 3,000 words, to be lodged.

3.114             Subclause (1) gives the Commission discretion to allow more than 3,000 words.

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

3.116             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 Registration and Accountability of Organisations Schedule.

Clause 63 - Exemption from ballot

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

3.118             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 the circumstances warrant the refusal of the exemption.

3.119             Under subclause (2), if the exemption applied for under clause 46 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 64 - Approval for ballot not conducted under section 65

3.120             Under this clause, an existing organisation concerned in a proposed amalgamation may seek approval for a proposal to conduct an amalgamation ballot by a method other than by a secret postal ballot conducted by the Australian Electoral Commission under clause 77.

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

·      the proposal satisfies the various criteria specified in paragraph 64(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 65, and will give members adequate opportunity to vote on the amalgamation without intimidation.

3.122             If satisfied, the Commission must approve the proposal at the conclusion of a hearing concerning the proposed amalgamation arranged under clause 53.

Clause 65 - Secret postal ballot of members

3.123             Under subclause (1), once a proposed amalgamation has been approved by the Commission for submission to ballot in accordance with clause 55 or 57, 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 63 or the ballot is to be conducted under clause 64.

3.124             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.

3.125             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.

3.126             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.

3.127             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 Registration and Accountability of Organisations Schedule.

3.128             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.

3.129             Subclause (6) provides that in a ballot conducted under clause 65, each completed ballot paper must be returned in the declaration envelope provided, which must, itself, be placed in an outer envelope in the form prescribed by the regulations.

3.130             The use of the outer envelope is to be required to ensure the security of declaration envelopes in the course of post from the elector to the Australian Electoral Commission.

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 63 or if the Commission has approved a proposal under clause 64.

Clause 66 - 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 43 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 compiled in accordance with clause 59) have voted in the amalgamation ballot and if more than 50% of the formal votes cast are in favour of the amalgamation.

Clause 67 - 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 68 - 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 44, 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 it for the purposes of the ballot contained an unduly large proportion of members’ addresses that were not current or were workplace addresses.

Clause 69 - 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 amalgamation 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 70 - 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 to 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 71 - Expenses of ballot

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

Clause 72 - Offences in relation to ballot

3.147             This clause sets out offences relating to ballot papers.  Similar provisions apply to ballots for withdrawal from amalgamations (see notes to clause 105).  Subclause (1) deals with interference with ballot papers.  An offence is committed for such actions as destroying or altering a ballot paper, or possessing a ballot paper which a person is not entitled to possess.  The maximum penalty is 30 penalty units.

3.148             Subclause (2) concerns hindering the ballot process.  A person commits an offence if, for example, he or she hinders or obstructs the ballot process, threatens violence with the intention of influencing a vote, gives or offers a bribe, or advises a person entitled to vote to refrain from voting.  The maximum penalty is 30 penalty units.

3.149             Subclause (3) seeks to maintain the secrecy of the vote.  An offence is committed, for example, when a person requests another person to see a ballot paper after is has been marked.  The maximum penalty is 30 penalty units.

3.150             Subject to certain amendments, this clause generally reflects subsections 317(2), 317(3) and 317(4) of the WR Act.

Division 6 - Amalgamation taking effect

3.151             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 73 - Action to be taken after ballot

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

3.153             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 35.  Notice of the day is to be published as prescribed.

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

·      the time for applying under clause 69 for an inquiry into alleged 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 proceedings 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.

3.155             Under subclause (3), on amalgamation day:

·      the Industrial Registrar must register the amalgamated organisation;

·      any alterations to its rules take effect;

·      the Commission is required to cancel the registration of the proposed de-registering organisation or organisations; and

·      members of the de-registering organisation automatically become members of the amalgamated organisation, without having to pay an entrance fee.

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

3.157             This clause generally replicates section 253Q of the WR Act, except for the additional requirements in paragraph (2)(d) and subclause (4) in relation to organisations being bound by existing obligations.

Clause 74 - Assets and liabilities of de-registered organisation become assets and liabilities of amalgamated organisation

3.158             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 defined in clause 35.

Clause 75 - Resignation from membership

3.159             This clause modifies the operation of clause 174 (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 76 - Effect of amalgamation on awards, orders and certified agreements

3.160             Awards and orders of the Commission, and agreements certified by 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 77 - Effect of amalgamation on agreement under section 151

3.161             Subclause (1) provides that, on and from the amalgamation day, the amalgamated organisation becomes bound to any agreement made with a State union under clause 151 to which the de-registered organisation was a 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 78 - Instruments

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

3.163             The terms ‘instrument’ and ‘instrument to which this Part applies’ are defined in clause 35.

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

3.165             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 79 - Pending proceedings

3.166             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 80 -Division applies despite laws and agreements prohibiting transfer etc.

3.167             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 out because of, or for a purpose connected to or arising out of, the giving effect to an amalgamation.

3.168             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.

3.169             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.

3.170             Nothing done pursuant to Division 6 of Part 2 of Chapter 3 is taken to release a surety, wholly or in part, from his or her obligations (paragraph (2)(c)).

3.171             Subclause (3) provides that where the consent of a person would normally by necessary to give effect to any particular aspect of this Division, the consent is deemed to have been given.

Clause 81 - Amalgamated organisation to take steps necessary to carry out amalgamation

3.172             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 82 - Certificates in relation to land and interests in land

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

3.174             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 83 - Certificates in relation to charges

3.175             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 Division, the holder of the charge; and

·      the certificate is lodged with the Australian Securities and Investments 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 35.

Clause 84 - Certificates in relation to shares etc.

3.176             This clause 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.

3.177             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.

3.178             ‘Debenture’ and ‘interest’ are defined in clause 35.

Clause 85 - Certificates in relation to other assets

3.179             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.

3.180             ‘Asset’ is defined in clause 35.

Clause 86 - Other matters

3.181             This clause states that the regulations may provide for other matters related to giving effect to an amalgamation.

Clause 87 - Federal Court may resolve difficulties

3.182             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.

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

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

Division 7 - Validation

3.185             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.

3.186             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.

3.187             Division 7 of Part 2 of Chapter 3 of the Registration and Accountability of Organisations Schedule contains appropriate provisions for this purpose which complement the validating provisions in Part 2 of Chapter 10.

3.188             Definitions of terms used in this Division (such as ‘defect’ and ‘invalidity’) appear in clause 35.

Clause 88 - Validation of certain acts done in good faith

3.189             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).

3.190             Such validation is subject to displacement by an order of the Federal Court under clause 90.

3.191             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.

3.192             Subclause (3) provides that the validation provisions apply to an act done to or by an association whenever it was done (including an act done before the commencement of the provision), and to an act done to or by an association before it became registered.

3.193             Subclause (4) makes it clear that the validation provisions do not affect the operation of an order of the Federal Court made before the commencement of the clause nor the operation of:

·      clause 69 (inquiries into irregularities);

·      clause 81 (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 87 (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 general validation provisions in Part 2 of Chapter 11 (validation provisions for organisations).

3.194             The definition of ‘invalidity’ in clause 35 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 89 - Validation of certain acts after 4 years

3.195             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 and the requirements of Part 2 of Chapter 3 if 4 years have elapsed from the day on which the act was done.

3.196             Such validation by passage of time is subject to displacement by an order of the Federal Court under clause 90.

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

3.198             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 90 - Orders affecting application of section 88 or 89

3.199             This clause enables the Federal Court to displace the validating provisions of clauses 88 and 89, where it would be just to do so.

3.200             Under subclause (1), if the Federal Court is satisfied that the application of clauses 88 and 89 would do substantial injustice, having regard to the interests of specified persons, it must make a declaration.

3.201             Under subclause (2), such a declaration completely displaces any operation of clauses 88 and 89.

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

Clause 91 - Federal Court may make orders in relation to consequences of invalidity

3.203             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.

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

3.205             Under subclauses (2), (3) and (4), the Court may make an appropriate declaration and orders to correct the invalidity and validate anything consequentially made invalid owing to the invalidity.

3.206             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.

3.207             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

3.208             Subject to the inclusion of a number of new provisions, and other minor changes, the provisions in this Part reflect Division 7A of Part IX of the WR Act.  A number of the new provisions concern matters that are dealt with in the Workplace Relations Regulations 1996.  They have been included in this Part to consolidate the relevant provisions in the Registration and Accountability of Organisations Schedule.  Relevant offences in Part XI of the WR Act have also been integrated into this Part.

Division 1 - General

Clause 92 - Object of Part

3.209             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 93 - Definitions etc.

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

Division 2 - Ballots for withdrawal from amalgamated organisations

Clause 94 - Applications to the Federal Court for ballots

3.211             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.

3.212             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 occurred under Division 7 of Part IX of the WR Act, or the Registration and Accountability of Organisations Schedule.  The clause also provides that the amalgamation must have occurred after 31 December 1996, and the application to withdraw from the amalgamated organisation must be made at least 2 years, but no more than 5 years, after the amalgamation occurred.

3.213             Subclause (2) prevents an application for a ballot 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.

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

3.215       Subclause (4) requires the application to be in the prescribed form and to contain information prescribed by the regulations.

3.216       Subclause (5) requires a constituent member involved in an application (under subclause (3)) to be a financial member.

Clause 95 - Outline of proposed withdrawal

3.217       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 3,000 words (unless authorised by the Federal Court); and

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

3.218       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.

3.219       Under clause 98, the Federal Court may allow the outline to include diagrams, drawings, illustrations, photographs, symbols and the like.

Clause 96 - Filing the “yes” case

3.220       This clause enables the applicant to file with the Federal Court a written statement of up to 2,000 words in support of the proposed withdrawal.  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 Registration and Accountability of Organisations Schedule (subclause (3)).

3.221       Under clause 98, the Federal Court may allow the statement to include diagrams, drawings, illustrations, photographs, symbols and the like.

Clause 97 - Filing the “no” case

3.222       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 Registration and Accountability of Organisations Schedule (subclause (3)).

3.223       Under clause 98, the Federal Court may allow the statement to include diagrams, drawings, illustrations, photographs, symbols and the like.

Clause 98 - Provisions relating to outlines and statements of ‘‘yes’’ and ‘‘no’’ cases

3.224       The Federal Court may allow an outline filed under clause 95 or the statement in support or the statement in opposition to the disamalgamation (filed under clause 96 or clause 97, respectively) to include diagrams, drawings, illustrations, photographs, and symbols.  The Court may also allow an outline or a statement to be amended by the person who filed it.

Clause 99 - Notifying of applications for ballots

3.225       When an application is made under clause 94, 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 100 - Orders for ballots

3.226       Subclause (1) sets out the matters in respect of which 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.

3.227       Subclause (2) lists the persons who may be heard by the Court.

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

Clause 101 - Financial members only eligible to vote

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

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

Clause 102 - Conduct of ballots

3.231       Subclause (1) requires the Australian Electoral Commission to carry out the ballot in accordance with the regulations.  It also provides that the Commonwealth bears the expenses of conducting such a ballot.

3.232       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)).  The ballot paper must also be accompanied by a declaration envelope and another envelope, the ‘outer envelope’, the form of which is prescribed in the regulations .

3.233       Subclause (3) requires that each ballot paper must be returned to the Australian Electoral Commission in the declaration envelope provided, which must, in turn, be inside the outer envelope.

Clause 103 - Providing information etc. to electoral officials

3.234       An electoral official, who has written authorisation from the Australian Electoral Commission, 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)).

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

3.236       Subclause (3) provides that the offence in subclause (2) is a strict liability offence.

3.237       Subclause (4) provides that subclause (2) does not apply if the defendant has a reasonable excuse.  In accordance with drafting practice, a legislative note makes it clear that the defendant bears the evidentiary burden with respect to that defence.

3.238       Subclause (5) 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.

3.239       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 104(3) (subclause (6)).

Clause 104 - Declaration by secretary etc. of organisation

3.240       This clause is a new provision.  It provides that, if an electoral official makes a request under subclause 103(1) in relation to a register of members of an organisation or part of it required to be kept under clause 230, the secretary (or other prescribed officer) of the organisation must make a declaration that the register has been maintained in accordance with the requirements of the legislation (see the notes to subclause 230(2)).

3.241       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)).

3.242       Subclause (3) prohibits a person to making a statement in the declaration that is false or misleading.  The note at the end of the subsection makes clear that it is a civil penalty provision.

Clause 105 - Offences in relation to ballots

3.243       This clause sets out offences relating to ballot papers.  Similar provisions apply to ballots for amalgamations.  Subclause (1) deals with interference with ballot papers.  An offence is committed for such actions as destroying or altering a ballot paper, or possessing a ballot paper which a person is not entitled to possess.  The maximum penalty is 30 penalty units.

3.244       Subclause (2) concerns hindering the ballot process.  A person commits an offence if, for example, he or she hinders or obstructs the ballot process, threatens violence with the intention of influencing a vote, or advises a person entitled to vote to refrain from voting.  The maximum penalty is 30 penalty units.

3.245       Subclause (3) seeks to maintain the secrecy of the vote.  An offence is committed, for example, when a person requests another person to see a ballot paper after it has been marked.  The maximum penalty is 30 penalty units.

3.246       Subject to certain amendments required to ensure conformity with the Criminal Code Act 1995 , this clause generally reflects subsections 317(2), 317(3) and 317(4) of the WR Act.

Clause 106 - Certificate showing particulars of the ballot

3.247       Clause 106 requires the electoral official conducting the ballot to prepare, date and sign a certificate containing specified particulars of the ballot.  The electoral official is required to give a copy to the Federal Court, the Industrial Registrar and the amalgamated organisation.

3.248       The electoral official is also required to provide a copy to each applicant.  However, where the application was made by the prescribed number of constituent members under paragraph 94(3)(a), the electoral official is to make a copy of the certificate available to each applicant in any way he or she considers appropriate. 

Clause 107 - Post-ballot report by AEC

3.249       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 94, after completion of a ballot.

3.250       Where the application for a ballot was made by the prescribed number of constituent members under paragraph 94(3)(a), the electoral official is required to make a copy of the report available to each applicant in any way he or she considers appropriate.

3.251       Subclause (3) requires the report to include details of matters prescribed by regulation.

3.252       Subclause (4) 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 it for the purposes of the ballot contained an unduly large proportion of members’ addresses that were not current or were workplace addresses.

Clause 108 - Inquiries into irregularities

3.253       Subclause (1) enables an application to be made to the Federal Court for an inquiry into alleged irregularities in relation to a disamalgamation ballot.  ‘Irregularity’ is defined in clause 6.

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

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

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

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

·     any other order the Court considers necessary or desirable.

3.256       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.

Division 3 - Giving effect to ballots

Clause 109 - Determining the day of withdrawal

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

3.258       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.

3.259       Subclause (3) prescribes those who may apply to the Court for an order.

3.260       Subclause (4) requires a constituent member involved in an application (under subclause (3)) to be a financial member.

3.261       Subclause (5) requires the application to be in the prescribed form and to contain information prescribed by the regulations.

Clause 110 - Registration of constituent part

3.262       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 13(1)(a).

Clause 111 - Choice of organisation following withdrawal of separately identifiable constituent part

3.263       This clause provides a mechanism for members to decide whether to become a member of a newly withdrawn organisation or to remain a member of the amalgamated organisation.

Clause 112 - Members of amalgamated organisation may join newly registered organisation

3.264       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 an entrance fee.

Clause 113 - Orders of the Commission, awards etc.

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

Clause 114 - Effect of withdrawal on agreement under section 151

3.266       Subclause (1) provides that, on and from the day when the registration of the withdrawn organisation takes effect, it becomes bound by any agreement made with a State union under clause 151 to which the amalgamated organisation was a party.  Subclause (2) requires the Industrial Registrar to enter in the register of organisations particulars of the effect of the withdrawal on the agreement.

3.267       This clause reflects Regulation 98ZK of the Workplace Relations Regulations 1996.

Clause 115 - Instruments

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

3.269       The terms ‘instrument’ and ‘instrument to which this Part applies’ are defined in clause 93.

3.270       Under subclause (1), such instruments continue in force from the time of the withdrawal day.

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

Clause 116 - Pending proceedings

3.272       This clause ensures continuity in Court and Commission proceedings.  It provides that in all proceedings that are pending before a court or before the Commission immediately before the day on which the withdrawal takes effect, the newly registered organisation takes the place of the amalgamated organisation if the proceedings concern wholly the interests of constituent members of the newly registered organisation.  Where the proceedings concern in part the interests of the constituent members of the amalgamated association, the newly registered organisation becomes a party to the proceedings.

3.273       This clause reflects Regulation 98ZM of the Workplace Relations Regulations 1996 .

Clause 117 - Division applies despite laws and agreements prohibiting transfer etc.

3.274       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.

3.275       Under subclause (1), the provisions concerning the giving of effect to withdrawal ballots prevail over any other Commonwealth, State or Territory law, and over any contract, deed, undertaking, agreement or other instrument.  This includes any provisions in the WR Act.

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

3.277       Nothing done pursuant to Division 3 of Part 3 of Chapter 3 is taken to release a surety, wholly or in part, from his or her obligations (paragraph (2)(c)).

3.278       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)).

Clause 118 - Amalgamated organisation, constituent part and newly registered organisation to take necessary steps

3.279       Subclause (1) requires the amalgamated organisation and the constituent part to do everything necessary to ensure that, when a withdrawal 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 119 - Certificates in relation to land and interests in land

3.280       This clause applies where land or an interest in land has been transferred under Division 3 of Part 3 of Chapter 3 from an amalgamated organisation to a newly registered organisation.

3.281       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.

3.282       This clause reflects Regulation 98ZN of the Workplace Relations Regulations .

Clause 120 - Certificates in relation to charges

3.283       This clause applies where the newly registered organisation becomes, by force of Division 3 of Part 3 of Chapter 3, the holder of a charge.  If:

·      an authorised person signs a certificate which identifies the charge and states that the newly registered organisation has become, under this Division, the holder of the charge; and

·      the certificate is lodged with the Australian Securities and Investments 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 93.

3.284       This clause reflects Regulation 98ZO of the Workplace Relations Regulations .

Clause 121 - Certificates in relation to shares etc.

3.285       This clause applies where the newly registered organisation becomes, by force of Division 3 of Part 3 of Chapter 3, the holder of a share, debenture or interest in a company.

3.286       If an authorised person signs a certificate identifying the share, etc, and stating that the newly registered organisation has, under Division 3, become the holder of the share, etc; and the certificate is delivered to the company, the company is required to register or record the matter in the usual way.

3.287       ‘Debenture’ and ‘interest’ are defined in clause 93.

3.288       This clause reflects Regulation 98ZP of the Workplace Relations Regulations 1996 with some amendments to ensure symmetry with the equivalent provision in Part 2.

Clause 122 - Certificates in relation to other assets

3.289       This clause applies where an asset, other than an asset under the preceding three clauses, becomes an asset of the newly registered organisation.  If:

·      an authorised person signs a certificate identifying the asset and stating that, under Division 3 of Part 3 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.

3.290       ‘Asset’ is defined in clause 93.

3.291       This clause reflects Regulation 98ZQ of the Workplace Relations Regulations 1996 .

Clause 123 - Holding office after withdrawal

3.292       This clause enables a newly registered organisation to have rules to ensure continuity in office in respect of office holders elected to the equivalent offices of the constituent part before amalgamation.

3.293       However, those rules may not enable the office holders to continue in office in the newly registered organisation beyond what would have been the end of their term in that constituent part or beyond a year after the day when the disamalgamation takes effect, whichever is the later.

3.294       This clause reflects Regulation 98ZR of the Workplace Relations Regulations 1996 .

Clause 124 - Other matters

3.295       This clause states that the regulations may provide for other matters related to giving effect to the withdrawal of constituent parts from amalgamated organisations.

Clause 125 - Federal Court may resolve difficulties

3.296       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.

3.297       Any order made by the Federal Court prevails over any law of the Commonwealth, State or Territory.

Division 4 - Validation

3.298       In order to avoid or minimise difficulties in respect of withdrawal from amalgamations, Division 4 establishes a mechanism by which certain acts done by organisations or their officers for the purposes of such a withdrawal 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.

3.299       Terms used in this Division (such as ‘defect’ and ‘invalidity’) are defined in clause 93.

Clause 126 - Validation of certain acts done in good faith

3.300       Under subclause (1), acts done for the purposes of a proposed or completed disamalgamation by specified persons or bodies are valid if done in good faith, notwithstanding any invalidity later discovered in relation to the act concerned.  The persons or bodies that are specified in this respect are the:

·       amalgamated organisation;

·       the committee of management or an officer of the amalgamated organisation; or

·       constituent part of an amalgamated organisation; or

·       committee of management, or an officer, of such a part; or

·       newly registered organisation; or

·       committee of management, or an officer, of such an organisation.

3.301       Such validation is subject to displacement by an order of the Federal Court under clause 128.

3.302       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.

3.303       Under subclause (3), the validation provisions apply to an act done to or by an association whenever it was done (including before the commencement of the clause).

3.304       Subclause (4) makes it clear that the validation provisions do not affect the operation of an order of the Federal Court made before the commencement of the clause nor the operation of:

·      clause 108 (inquiries into irregularities);

·      clause 118 (requiring an amalgamated organisation and constituent part to take steps to give effect to the withdrawal and enabling the Federal Court to make appropriate orders in this respect); or

·      clause 125 (the capacity of the Federal Court to resolve any difficulties arising from the application of Part 3 to a particular matter); or

·      the operation of the validation provisions in Part 2 of Chapter 11 (general validation provisions for organisations).

3.305       The definition of ‘invalidity’ in clause 93 includes a ‘defect’, which is separately defined as excluding an irregularity in relation to a ballot.  This is to ensure that the separate legislative scheme for dealing with irregularities in withdrawal ballots is not affected.

Clause 127 - Validation of certain acts after 4 years

3.306       Subclause (1) enables an act by specified persons or bodies which was done for the purposes of a disamalgamation to be taken to have complied with the rules of an organisation and the requirements of Part 3 of Chapter 3 if 4 years have elapsed from the day on which the act was done.  The bodies or persons specified for this purpose are the constituent part of an amalgamated organisation or committee of management or officer of that constituent part, or the newly registered organisation, or its committee of management or officer.

3.307       Such validation is subject to displacement by an order of the Federal Court under clause 128.

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

3.309       Subclause (3) provides that this clause applies to an act done to or by an association whenever it was done.

Clause 128 - Orders affecting application of section 126 or 127

3.310       This clause enables the Federal Court to displace the validation provisions of clauses 126 and 127, where it would be just to do so.

3.311       Under subclause (1), if the Federal Court is satisfied that the application of clauses 126 and 127 would do substantial injustice, having regard to the interests of specified persons, it must make a declaration.

3.312       Under subclause (2), such a declaration completely displaces any operation of clauses 126 and 127.

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

Clause 129 - Federal Court may make orders in relation to consequences of invalidity

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

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

3.316       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.

3.317       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 one or more of the classes of organisations or persons listed in that clause.

3.318       Subclause (6) applies the section to an invalidity whenever occurring including an invalidity occurring before the commencement of the section.

Division 5 - Miscellaneous

Clause 130 - Certain actions etc. not to constitute breach of rules of amalgamated organisation

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

Clause 131 - Amalgamated organisation not to penalise members etc.

3.320       This clause prohibits certain conduct designed to impede the pursuit of a withdrawal from amalgamation (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 penalty units in the case of a body corporate or 20 penalty units in other cases (subclause (2)).

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

3.322       Subclause (4) is a deeming provision. It deems actions by certain bodies and persons to be actions by an organisation.  Subclause (5) provides that, in certain cases, the deeming provision does not operate where an appropriate person in the organisation took reasonable steps to prevent the action.

3.323       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

Clause 132 - 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 133 - 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 Registration and Accountability of Organisations Schedule or the WR 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 134 - 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 relevant industrial dispute to conciliation, or the dispute was not fully settled at conciliation. 

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 135 - Factors to be taken into account by Commission

4.10                 This clause requires the Commission, in considering whether to make an order under clause 133, to have regard to the wishes of the employees who are affected by the dispute.  The clause also sets out a range of other matters that the Commission is to have regard to, if appropriate, including 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 136 - Order may be subject to limits

4.12                 This clause is a technical item, which makes it clear that an order made under clause 133 may be subject to conditions or limitations.

Clause 137 - Organisation must comply with order

4.13                 This clause requires an organisation to which an order under clause 133 applies to comply with the order, and gives the Federal Court jurisdiction to make orders to ensure compliance.

Clause 138 - 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 139 - Simplified outline

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

Part 2—Rules of organisations

Division 1 General

Clause 140 - Organisations to have rules

5.4                     An organisation is required to have rules which are in accordance with the Registration and Accountability of Organisations Schedule.  Such rules can be mandatory or discretionary.

Clause 141 - 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 from providing for the 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 (2) 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 (3)) for example, rules requiring candidates that for office are to be members of the organisation.

Clause 142 - General requirements for rules

5.8                     This clause specifies general requirements for the rules of organisations.  It provides that rules:

·      are not to be contrary to, or fail to make a provision required by a provision of, the Registration and Accountability of Organisations Schedule, the WR Act, the regulations, an award or order of the Commission, an old IR agreement, or otherwise be contrary to law;

·      are not to prevent members from observing the law or provisions of an award, an order of the Commission, an old IR agreement, or from entering into written agreements in accordance with such instruments;

·      are not to impose oppressive, unreasonable or unjust conditions upon members or applicants for membership, having regard to the objects of the Registration and Accountability of Organisations Schedule and the WR 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 143 - Rules to provide for elections for offices

5.10                 This clause specifies what election requirements the 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 (other than nominations that are defective by reason of lack of qualification for office (subclause (5));

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

·      secret ballots, absentee voting, the conduct of the ballot and 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 144 - Rules to provide for elections for office by secret postal ballot

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

5.15                 Subclause (1) requires that 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 revoked 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 145 - 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 146 - 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 Registration and Accountability of Organisations Schedule.

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

Clause 147 - 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 343) 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 148 - 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 149 - 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 $1,000 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 $3,000 where the amount is for the purposes of relieving a member or member’s dependent from severe 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 150 - Definitions

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

Clause 151 - 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) and (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 the particulars of the agreement on the register kept under clause 13 (subclause (3)).

5.41                 The Industrial Registrar is not to enter the particulars in the register 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 Registration and Accountability of Organisations Schedule 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 this Schedule or the WR Act;

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 152 - Assets and liabilities agreements

5.44                 This clause provides 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 the State union.

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

5.47                 Under subclause (3), an assets and liabilities 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 Registration and Accountability of Organisations Schedule 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 153 - Party to section 152 agreement may apply to Federal Court for orders

5.50                 A party to an assets and liabilities agreement made under clause 152 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 154 - Termination of section 152 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 13 (subclause (4)).

5.57                 Subclause (5) 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 155 - 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 156 - 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 Registration and Accountability of Organisations Schedule.  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 157 - 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 158 - 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 rules. 

5.64                 Subclause (1) requires that the Commission consent 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 or withdrawal from 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 133 of the Registration and Accountability of Organisations Schedule (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 159 - 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 Registration and Accountability of Organisations Schedule, 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, withdrawals from amalgamation, 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 160 - Certain alterations of rules to be recorded

5.74                 This clause provides that details of changes in the name of 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 161 - 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 Registration and Accountability of Organisations Schedule or the WR Act.

Clause 162 - Powers of Commission

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

Part 3 - Validity and performance of rules etc

Clause 163 - Rules contravening section 142

5.77                 This clause establishes a mechanism for a member to apply to the Court in relation to rules that contravene clause 142, and enables the Court to make orders declaring that rules (in whole or in part) contravene the requirements of the Registration and Accountability of Organisations Schedule, and are therefore 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 application on the grounds that the organisation’s rules are oppressive, unreasonable, unjust or discriminatory in contravention of paragraphs 142(1)(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 (6), if the Court makes an order declaring that a rule contravenes clause 142, 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 142.  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 164 - 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 the rules of the organisation.

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                 Subclause (5) provides that an order under subclause (4) continues in force until the proceeding is completed unless it is expressed to operate for a shorter period or is sooner discharged.

5.87                 Subclause (9) defines the term ‘order under this section’.

Clause 164A - Directions to rectify breach of rule of organisation

5.88                 In Darroch and ors v Tanner (1987) 74 ALR 559, a Full Court of the Federal Court held that it only had the power to give directions to persons who, at the time of the giving of the directions , were under an obligation to perform or observe the rules.  The Court found that it did not have the power to make orders directing a person to take action to rectify a past breach of the rules, unless there was a continuing obligation on the relevant person to perform or observe the relevant rules.  Clause 164A will give the Court such a power.

5.89                 New clause 164A will give the Federal Court power to make an order in circumstances where a person, who was under an obligation to perform or observe rules of an organisation, has breached those rules and has acted unreasonably in doing so (subclause (3)). 

5.90                 The Court will have the power to order the person to take actions to rectify the effects of the breach of the rules.  In effect, the provision is directed to placing the organisation in the position that it would have been if the breach had not occurred (subclause (4) refers).

5.91                 Subclause (5) makes it clear that the Court may make the order, regardless of whether the person is a member or officer of the organisation, at the time the Court makes the order.

5.92                 The right to apply for an order is open to any member of the organisation (subclause (1)).  However, before making such an order, the Court must give any person against whom the order is sought, an opportunity of being heard (subclause (2)).

Clause 164B - Orders under sections 164 and 164A

5.93                 Under subclause 164B(1), the Court cannot make an order under clause 164 or 164A that would invalidate an election.  (This is because Chapter 7 provides the avenue for getting orders from the Court declaring elections invalid.)

5.94                 New subclause (2) provides that the Court cannot make an order under section 164A directing a person to pay compensation for any loss or damage suffered by the organisation.  That is, any order under new clause 164A must be limited to rectification of the effect of the breach.  (An application for a compensation order may be made under Part 2 of Chapter 10 of the Registration and Accountability Schedule in the context of a breach of a penalty provision - see notes on clause 307.)

5.95                 If, when dealing with a matter under clause 164 or 164A, the Court finds that a rule contravenes section 142 it may issue a declaration to that effect (subclause (3)).  Clause 163 (other than subclauses (1) to (5)) applies in relation to such an order (subclause (4)).

5.96                 Subclause (5) defines the term ‘election’.



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 165 - Simplified outline

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

Part 2 - Entitlement to membership

Clause 166 - Entitlement to become and to remain a member

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 organisation’s 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 he or she complies with the rules of the organisation.  However, the person is not entitled to remain a member if he or she ceases to be eligible to become a member unless the organisation’s rules otherwise provide.

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 rules.

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

6.9                     An employer is not able to remain a member if it ceases 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 those clauses expressly require compliance with those rules (subclause (6)).

Clause 167 - 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.

6.12                 Subclause (3) provides that the Court may make an order requiring an organisation to treat a person as a member if subclause 166(1) or (4) applies.

6.13                 If an order is made under paragraph (3)(a), subclause (4) provides that the person specified in the order becomes a member of the organisation.  If an order is made under paragraph (3)(b), and the person pays any amount liable to the organisation, the person is taken to have been a member of the organisation during the period specified in the order.

6.14                 Subclause (6) provides for both the organisation and person concerned to be heard by the Court when considering an application under this clause.

Clause 168 - Application for membership of organisation by person treated as having been a member

6.15                 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.

6.16                 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 169 - Request by member for statement of membership

6.17                 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 170 - Rectification of register of members

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

Part 3 - Termination of membership

Clause 171 - Federal Court may order that persons cease to be members of organisations

6.19                 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 172 - Non-financial members to be removed from the register

6.20                 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.

6.21                 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)).

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

Clause 173 - No entrance fee if person re-joins within 6 months

6.23                 This clause operates with respect to people who apply for membership of an organisation within 6 months after their membership ceased under clause 172.  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 174 - Resignation from membership

6.24                 This clause sets out how a person may resign from an organisation.  It supplements clause 141, which requires that rules of organisations provide for resignation.

6.25                 Subclauses (1) and (2) provide that a resignation must be in writing and stipulates that 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.

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

6.27                 Subclause (3) allows an organisation to sue for any dues payable but not paid by the former member in relation to the period before the resignation took effect. (This right is subject to clause 178.)

6.28                 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.

6.29                 A note to this clause directs readers to clause 359, 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 does not constitute resignation.

Part 4 - False information, disputes and arrears of dues

Clause 175 - False representation as to membership of organisation

6.30                 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 the Registration and Accountability of Organisations Schedule or the WR Act.  This is a civil penalty provision.

Clause 176 - False representation about resignation from organisation

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

Clause 177 - Disputes between organisations and members

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

6.33                 Subclauses (2) provides that any money payable to an organisation may be sued for and recovered as a debt due to the organisation.

6.34                 Subclause (3) provides that a Court can order a member of an organisation to contribute to a penalty incurred or money payable by the organisation under an award, order, certified agreement or old IR agreement.  Such a contribution is not to exceed $20.

Clause 178 - Recovery of arrears

6.35                 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 179 - Liability for arrears

6.36                 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 participated in the affairs of the organisation since that time.

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

Part 5 - Conscientious objection to membership

Clause 180 - Conscientious objection to membership of organisations

6.38                 This clause enables a person to apply to a Registrar for a conscientious objection certificate.

6.39                 Subclause (1) requires the Registrar to 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.

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

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

6.42                 Subclause (4) enables the Registrar to revoke a certificate in limited circumstances.

6.43                 Subclause (5) makes clear that the holding of a certificate of conscientious objection does not prevent the employer being a party to an industrial dispute.

6.44                 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.  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 Standing Committee on Electoral Matters relating to industrial elections.

Part 1 - Simplified outline of Chapter

Clause 181 - Simplified outline

7.2                     This clause provides a simplified outline of the chapter.

Part 2 - Conduct of elections for office and other positions

Clause 182 - 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 186 the requirements of subclause (1) do not apply (subclause (2)).

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 187.

Clause 183 - Application for organisation or branch to conduct its elections for office

7.6                     This clause allows an organisation or branch to apply to be exempted from the requirement that the AEC conduct elections for office, and sets out the preconditions and processes for making the application.

Clause 184 - Objections to application to conduct elections for office

7.7                     This clause provides that a member of an organisation or branch that has made application for an exemption under subclause 183(1) may make objections to that application.

Clause 185 - Threats in relation to section 184 objections

7.8                     This clause creates new offences relating to the lodging of objections under clause 184.  The offences are consistent with Commonwealth criminal law policy.

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 184 (subclause (1)).

7.10                 Paragraph (2)(a) creates offences in relation to bribery.  It prohibits a person from giving, or offering or promising to give, any property or other benefit with the intention of influencing or affecting another person, because the person has or intends to lodge an objection.

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 of the section 184 objection will be influenced or affected.

7.12                 The maximum penalty for these offences is 30 penalty units.

Clause 186 - Registrar may permit organisation or branch to conduct its elections for office

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

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 Registration and Accountability of Organisations Schedule; and

·      if granted the exemption, the organisation will conduct the election in accordance with those rules and the Registration and Accountability of Organisations Schedule and in a manner that allows members to vote without intimidation. 

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

7.16                 Subclause (2) provides that an exemption may be revoked by a Registrar on application by the committee of management of an organisation, or on the 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 187 - Organisation may ask AEC to conduct elections for positions other than offices

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. 

Clause 188 - Declaration envelopes to be used for postal ballots

7.18                 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 the completed ballot paper is returned inside a declaration envelope and an outer envelope (the form of which is prescribed in the regulations).  This is a new requirement.

Clause 189 - Registrar to arrange for conduct of elections

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

7.20                 Before arranging for the conduct of the election by the AEC, the Registrar must be satisfied that an election is required to be held under the rules of the organisation and, where the election is for a position other than an office, the organisation or branch has made a request under clause 187.

Clause 190 - Organisation or branch must not assist one candidate over another

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

7.22                 The maximum penalty is 100 penalty units.

Clause 191 - Organisation to provide returning officer with copy of register

7.23                 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.  The offence is one of strict liability (subclause (4)).  It is a defence if that person complied with the request as promptly as he or she was capable (subclause (3)).

7.24                 If a register, or the relevant part, is kept electronically, the returning officer may require that it be produced in that form (subclause (5)).

7.25                 The request must specify the time within which the register must be made available, which must not be less than 7 days after the request is given (subclause (6)).

Clause 192 - Declaration by secretary etc. of organisation

7.26                 Where a request is made under clause 191, 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 230(2).  This is a new provision.

7.27                 The declaration must be in writing, signed by the person making it, and provided to the Industrial Registry no later than the day before voting in the relevant election commences (subclause (2)).

7.28                 Subclause (3) prohibits a person to making a statement in the declaration that is false or misleading.  This is a civil penalty provision.

Clause 193 - Provisions applicable to elections conducted by AEC

7.29                 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.  However, it also 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, or

·      to ensure the security of ballot papers and envelopes. 

7.30                 The security of ballot processes is generally secured by adherence to the established rules of organisations for conducting elections, including through the use of postal ballots. Over the past two decades, however, there have been a number of cases of tampering with postal ballots, including through the fraudulent completion of ballots and the soliciting of ballot papers.

7.31                 Clause 193 would allow the AEC to ‘take such action, and give such directions , as the electoral official considers necessary …to ensure that no irregularities occur in or in relation to the election…’.  This would ensure that the AEC could take appropriate action to protect the integrity of elections, including, for example, by requiring the conduct of an attendance ballot in situations where the AEC was satisfied this was appropriate to overcome the potential for electoral fraud or intimidation.

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).  This does not apply so far as the person is not capable of complying or has a reasonable excuse (subclauses (3) and (4)).  Legislative notes make it clear that the defendant bears the evidentiary burden in this respect.

7.33                 Subclause (5) states that the offence in subclause (2) is a strict liability offence.

7.34                 Subclause (6) 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.

7.35                 Subclause (7) 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. 

7.36                 This clause is based on section 215 of the WR Act, but extends the application of the provision to elections for positions other than offices where they are conducted by the AEC and adds an explicit reference to an electoral official acting in order to ensure the security of ballot papers and envelopes.



  Clause 194 - Hindering or obstructing electoral official or other person

7.37                 This clause provides that it is an offence to hinder or obstruct an electoral official in the performance of his or her functions or any other person complying with a direction under subclause 193(1).

Clause 195 - Improper interference with election process

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

7.39                 Subclause (2) makes it an offence to interfere with ballot papers, such as by destroying or altering a ballot paper.

7.40                 Subclause (3) makes it an offence to influence or affect a person’s candidature or voting intention by such means as threats or inflicting injury.

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

7.42                 Subclause (6) prohibits a person from requiring or inducing another person 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. 

7.43                 The maximum penalty for each of these offences is 30 penalty units.

Clause 196 - Death of candidate

7.44                 This clause provides for the discontinuation of an election where a candidate has died.

Clause 197 - Post-election report by AEC

Clause 198 - Organisation to respond to adverse report on rules

7.45                 Clause 197 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 is of the view that a particular rule is difficult to interpret or apply it must note that fact in the report (subclause 197(4)).

7.46                 Subclause 197(3) requires the AEC to state in the report, if it is of that opinion, that the register of members or part thereof made available to it for the purposes of the ballot contained an unduly large proportion of members’ addresses that were not current or were workplace addresses.  Any relevant model rules that may assist the organisation or branch to address this matter must also be included in the report.

7.47                 Subclause 198(1) requires an organisation or branch 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 or branch is required to make available to its members the relevant extract of the AEC report and a copy of the response (subclauses (3) to (5)).

7.48                 Whilst not limiting the ways in which an organisation can satisfy this requirement, subclause 198(6) 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 (the declaration must be signed by the secretary or other prescribed officer: subclause (7)); 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. 

7.49                 Subclause (8) imposes civil penalties in relation to knowingly or recklessly making false or misleading statements in such a declaration.  Subclause (9) defines relevant terms.

Clause 199 - Ballot papers etc. to be preserved

7.50                 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.

7.51                 Contravention of these requirements by an organisation or branch or its officers or employees is an offence (subclauses (3) and (5)). Subclauses (4) and (6) provide that these offences do not apply where the person has a reasonable excuse.  A legislative note states that the defendant bears the evidentiary burden with respect to the defence.

7.52                 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.

7.53                 The clause is similar to section 217 (in relation to preservation of ballot papers etc) and section 314 (in relation to the offence elements) of the WR Act. The defences in subclauses (4) and (6) are new.

Part 3 - Inquiries into elections for office

Clause 200 - Application for inquiry

7.54                 Subclause (1) provides that a member of an organisation, who claims there has been an irregularity in relation to an election for office, may apply to the Federal Court to inquire into the matter (‘irregularity’ is defined in clause 6).

7.55                 If the Electoral Commissioner believes that the result of an election for office has been affected by an irregularity in relation to the election, subclause (2) requires the Electoral Commissioner to apply to the Federal Court for an inquiry.

7.56                 Subclause (3) provides that the Electoral Commission may apply for an inquiry if it is believed that an irregularity in relation to an election for office may have occurred.

7.57                 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 Standing Committee on Electoral Matters relating to industrial elections.

Clause 201 - Instituting of inquiry

7.58                 This clause deals with the instituting of inquiries.

Clause 202 - Federal Court may authorise Industrial Registrar to take certain action

7.59                 Subclauses (2) and (3) of this clause permits the Federal Court to authorise the Industrial Registrar to take certain action where an application for an inquiry has been made under clause 200.  Before making such an order, the Court may give an interested person an opportunity to object (subclause (3)).

7.60                 Paragraph (5)(a) makes it an offence to contravene a request by an official under paragraph (2)(c) for the production of documents in relation to an election.  The offence in paragraph (5)(a) is one of strict liability.  Paragraph (5)(b) makes it an offence to obstruct the Registrar or a person acting on the Registrar’s behalf in the performance of their duties.  Both offences carry a maximum penalty of 30 penalty units.

7.61                 Subclause (7) provides that the offence in paragraph (5)(a) is subject to a reasonable excuse defence.  In accordance with drafting practice, a legislative note states that the defendant bears the evidentiary burden with respect to the defence.

7.62                 This clause also contains provisions consistent with Commonwealth criminal law policy concerning requirements for the provision of documents and protection from self-incrimination (subclauses (8) and (9)).

Clause 203 - Designated Registry officials must have identity cards

7.63                 This clause is a new provision which is intended to reflect Commonwealth criminal 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 202.

7.64                 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 prescribed (subclause (6)).

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

Clause 204 - Interim orders

7.66                 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 205 - Procedure at hearing

7.67                 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 206 - Action by Federal Court

7.68                 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.  If the Court finds that an irregularity has happened, orders that the Court may make include:

·      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 207 - Industrial Registrar to make arrangements for conduct of elections etc.

7.69                 Where the Court makes an order for a new election under paragraph 206(4)(c), this clause requires the Industrial Registrar to arrange for the AEC to take the necessary steps in relation to an election or for the conduct of an election.

Clause 208 - Enforcement of orders

7.70                 This clause provides the Court with the power to grant injunctions as it considers necessary for the effective performance of its functions and enforcement of orders under this Part.

Clause 209 - Validity of certain acts etc. where election declared void

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

Part 4 - Disqualification from office

Part 4 disqualifies persons who have been convicted of certain offences from holding or seeking office in a registered organisation.

Division 1 - Simplified outline of this Part

Clause 210 - Simplified outline

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

Division 2 - Persons who have been convicted of a prescribed offence

Clause 211 - Simplified outline of Division

7.73                                   This clause provides a simplified outline of Division 2 of Part 4, which concerns disqualification from office of persons convicted of prescribed offences.

Clause 212 - Meaning of prescribed offence

7.74                 This clause defines the term ‘prescribed offence’.

Clause 213 - Meaning of convicted of a prescribed offence

7.75                 This clause defines the phrase ‘convicted of a prescribed offence’.  Among other things, it limits, in relation to certain offences, the circumstances in which conviction provides a basis for disqualification from holding an office in an organisation.

Clause 214 - Certificate of registrar etc. is evidence of facts

7.76                 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 215 - Certain persons disqualified from holding office in organisations

7.77                 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.

7.78                 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 Part, 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.

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

7.80                 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.

7.81                 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.

7.82                 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.

7.83                 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 216 - Application for leave to hold office in organisations by prospective candidate for office

7.84                 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.

7.85                 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.

7.86                 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.

7.87                 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.

7.88                 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 217 - Application for leave to hold office in organisations by office holder

7.89                 This clause provides for applications to be made to the Federal Court for leave to continue to hold office in organisations by office holders convicted of a prescribed offence.

Clause 218 - Federal Court to have regard to certain matters

7.90                 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 219 - Action by Federal Court

7.91                 Subclause (1) provides that the Federal Court may make such orders as it considers appropriate to give effect to declarations made under subclause 215(5).  Subclauses (2) and (3) deal with the right of persons and organisations to be heard in proceedings under this Part.

Clause 220 - Part not to affect spent convictions scheme

7.92                 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 And accounts

8.1                     Chapter 8 is concerned with the administration of organisations.  Part 2 deals with the record keeping obligations of organisations, and Part 3 sets out the financial accounting, auditing and reporting requirements placed on organisations.

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 Registration and Accountability of Organisations Schedule, which reflects Commonwealth criminal law policy, obligations that currently attract criminal sanction under the WR Act are 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 229 - 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 230 - 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.  This subclause is a civil penalty provision.

Clause 231 - 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 232 - 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 230, or with the copies kept under clause 231.

Clause 233 - 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 234 - 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 235 - 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 236 - Registrar may direct organisation to deliver copy of records

8.17                 If satisfied that a member has been refused access to the register of members or that there are other grounds for giving a direction, subclause (1) allows a Registrar to direct an organisation to deliver a certified copy of its register of members to the Registrar.  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.  Subclause (1) is a civil penalty provision.

8.18                 Where a member has made application, subclause (2) provides that the Registrar may direct an organisation to deliver to the Registrar a copy of the copy of records that an organisation is required to keep under clause 231.  In making the direction, the Registrar must be satisfied that the member has been refused access to the copy of the register, and that the member has reasonable grounds for seeking access to the copy.  Subclause (2) is a civil penalty provision.

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 subclause (1) or (2) may be in hard copy form, or if the Registrar agrees, in electronic form.

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

Clause 237 - Organisations to notify particulars of loans, grants and donations

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

8.23                 An organisation must lodge a statement detailing each loan, grant or donation over $1,000 in the Industrial Registry within 90 days after the end of each financial year (subclause (1)).  The statement must be signed by an officer of the organisation (subclause (2)) and cannot contain false or misleading statements (subclause (3)).  Subclauses (1) and (3) are civil penalty provisions.

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

Part 3 - Accounts and audit

8.25                 This Part is divided into 7 Divisions and prescribes the financial accounting and auditing requirements with which organisations are to comply.

Division 1 - Preliminary

Clause 238 - Simplified outline

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

Clause 239 - Part only applies to financial years starting after registration

8.27                 This clause provides that the financial accounting obligations of the Registration and Accountability of Organisations Schedule only apply from the first full financial year after a new organisation is registered. 

Clause 240 - Financial years - change in financial year

8.28                 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 241 - Exemptions from certain Australian Accounting Standards

8.29                 This clause allows the Industrial Registrar to grant exemptions from the general requirement (set out in subclause 253(1)) that Australian Accounting Standards apply to organisations.

8.30                 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

8.31                 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.

8.32                 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 amendments made by this Act would introduce the more flexible concept of ‘reporting unit’ to allow each organisation to meet its obligations in the manner most appropriate to its internal structure.

Clause 242 - What is a reporting unit?

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

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

8.35                 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 245 determining the organisation to be divided into reporting units on an alternative basis.

8.36                 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. 

8.37                 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 243 - Designated officers

8.38                 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.

Clause 244 - Members, staff and journals etc. of reporting units

8.39                 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 245 - Determination of reporting units

8.40                 As provided for in subclause 242(3), 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 for the purpose of compliance with this Part.  The Registrar can issue a certificate on application by an organisation, or at the Registrar’s own initiative.

Clause 246 - Determination of reporting units - application by organisation

8.41                 This clause outlines the requirements to which an organisation needs to adhere in making an application for a certificate under clause 245.  Paragraph (1)(b) contains a requirement for an organisation 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. 

8.42                 Subclause (2) sets out matters in relation to which the Registrar must be satisfied before issuing a certificate and certifying any rules changes.

Clause 247 - Determination of reporting units - Industrial Registrar initiative

8.43                 This clause provides that a certificate issued under clause 245 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.

8.44                 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.

8.45                 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 248 - Determination of reporting units - years certificate applies to

8.46                 This clause provides that a certificate issued under clause 245 operates in relation to each financial year after it is issued unless revoked under clause 249 before the start of a financial year.

Clause 249 - Determination of reporting units - revocation of certificates

8.47                 This clause provides for the revocation by the Industrial Registrar of certificates issued under clause 245.

8.48                 If a certificate is revoked the reporting structure of the organisation reverts to each branch being a reporting unit (subclause (2)).

8.49                 A certificate may be revoked by the Industrial Registrar on application, or at the Registrar’s initiative (subclause (3)).

8.50                 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)).

8.51                 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 Registration and Accountability of Organisations Schedule (subclause (5)).

8.52                 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 Registration and Accountability of Organisations Schedule, 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 250 - Determination of reporting units - rule alterations

8.53                 This clause clarifies when rule changes in relation to the issuing or revocation of a certificate take effect.  It also provides that such rule changes can vary the duties associated with an office in an organisation.

Clause 251 - Determination of reporting units - later certificate revokes earlier certificate

8.54                 This clause makes it clear that a reporting unit certificate is revoked with the issuing of a subsequent certificate.

Division 3 - Accounting obligations

8.55                 This Division sets out the accounting obligations of reporting units.

Subdivision A - General obligations

Clause 252 - Reporting unit to keep proper financial records

8.56                 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)).

8.57                 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)).

8.58                 Records may be retained on a cash or accrual basis (subclause (3)). 

8.59                 Membership records may be kept on a cash basis, even if other records are retained on an accrual basis (subclause (4)).

8.60                 Records must be retained for 7 years from the date of the transaction to which they relate (subclause (5)).

Clause 253 - Reporting unit to prepare general purpose financial report

8.61                 This clause requires a reporting unit to have a general purpose report prepared, from the records required to be kept under clause 252(1), as soon as practicable after the end of each financial year.  The report must be prepared in accordance with Australian Accounting Standards.

8.62                 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 255; and any other reports or statements requires by the reporting guidelines. 

8.63                 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 254 - Reporting unit to prepare operating report

8.64                 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.

8.65                 Subclause (2) lists the matters that must be addressed by the operating report, including that it: contain a review of the reporting unit’s principal 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 255 - Reporting guidelines

8.66                 This clause requires the Industrial Registrar to produce and publish in the Gazette reporting guidelines for the purposes of clauses 253 (which relates to organisations generally) and 270 (which provides for reduced reporting requirements for organisations with an annual income of less than $100,000).

8.67                 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.  These include 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.

8.68                 Subclause (4) provides that the Registrar may include in the guidelines other requirements regarding disclosure of information as he or she considers appropriate. 

8.69                 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

8.70                 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 256 - Auditors of reporting units

8.71                 Each reporting unit must have a qualified auditor.  This clause sets out the necessary requirements.

Clause 257 - Powers and duties of auditors

8.72                 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 redrafting 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 258 - Obstruction etc. of auditors

8.73                 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 redrafted in accordance with Commonwealth criminal law policy in relation the production of documents and protection against self-incrimination.

Clause 259 - Reporting unit to forward notices etc. to auditor

8.74                 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 260 - Auditor entitled to attend meetings at which report presented

8.75                 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 261 - Auditors and other persons to enjoy qualified privilege in certain circumstances

8.76                 This clause provides that auditors and certain other persons enjoy qualified privilege in relation to defamation in certain circumstances.

Clause 262 - Fees and expenses of auditors

8.77                 This clause provides that a reporting unit must pay the reasonable fees and expenses of an auditor.

Clause 263 - Removal of auditor

8.78                 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 264 - Resignation of auditor

8.79                 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

8.80                 Division 5 sets out the reporting requirements with which reporting units must comply.

Clause 265 - Copies of full report or concise report to be provided to members

8.81                 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.

8.82                 The report must be provided to members within a specified period after the end of the financial year to which it relates (subclause (5)).

8.83                 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)).

8.84                 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 266 - Full report to be presented to meetings

8.85                 This clause provides for the presentation of the full report to appropriate meetings.  The emphasis of the reporting requirement is on direct member participation.  Subclause (1) is a civil penalty provision.

8.86                 In the absence of acceptable alternative arrangements (set out in subclause 3), 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)). 

8.87                 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 267 - Comments by committee members not to be false or misleading

8.88                 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 267 is a civil penalty provision.

Clause 268 - Reports etc. to be lodged in Industrial Registry

8.89                 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

8.90                 This Division provides for reduced reporting requirements to apply in particular cases.

Clause 269 - Reporting units with substantial common membership with State registered bodies

8.91                 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 270 - Organisations with income of less than certain amount

8.92                 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 271 - Exemption from this Part of certain reporting units

8.93                 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

8.94                 Division 7 provides for members’ access to financial records of reporting units.  The amendments made by this Act provide increased access for members to financial records, in line with current standards (eg in the Corporations Act 2001 ).

Clause 272 - Information to be provided to members or Registrar

8.95                 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.

8.96                 With the exception of subclause (6), this clause is similar to section 274 of the WR Act.

Clause 273 - Order for inspection of financial records

8.97                 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 274 - Frivolous or vexatious applications

8.98                 This clause provides for a civil penalty in relation to making applications under clause 273 that are vexatious or without reasonable cause.  The Commission is also required to dismiss such applications as soon as possible.

Clause 275 - Ancillary orders

8.99                 This clause provides that where the Commission makes an order under clause 273, 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 276 - Disclosure of information acquired in inspection

8.100             This clause ensures that information accessed during an inspection granted under clause 273 is not improperly disclosed.

8.101             Disclosure to a Registry official or the applicant is permitted.

8.102             This provision is a civil penalty provision.

Clause 277 - Reporting unit or committee of management may allow member to inspect books

8.103             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 278 - Commission to be advised of breaches of Part or rules etc. found during inspection

8.104             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 273 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 Commission must refer the matter to the Registrar.

Clause 279 - Constitution of Commission

8.105             For the purposes of proceedings under Division 7 (which relates to access to financial records), the Commission must be constituted by a Presidential Member.

Part 4 - Access to organisations’ books

Clause 280 - Right of access to organisation’s books

8.106             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 - CONDUCT OF OFFICERS AND EMPLOYEES

9.1                     Chapter 9 sets out the duties of offices and employees of organisations in relation to the financial management of an organisation or branch. 

Part 1 - Simplified outline of Chapter

Clause 281 - Simplified outline

9.2                     This clause provides a simplified outline of the Chapter.

Part 2 - General duties in relation to the financial management of organisations

Division 1 - Preliminary

Clause 282 - Simplified outline

9.3                     This clause provides a simplified outline of Part 2 of Chapter 9.

Clause 283 - Part only applies in relation to financial management

9.4                     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 284 - Meaning of involved

9.5                     This clause provides a definition of the term ‘involved’, which is relevant to the operation of the duties to be imposed by clauses 286, 287 and 288.

Division 2 - General duties in relation to the financial management of organisations

Clause 285 - Care and diligence - civil obligation only

9.6                     This clause sets out the civil obligation of officers of organisations and their branches with respect to the duty of care and diligence.

9.7                     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. 

9.8                     This provision is a civil penalty provision.

9.9                     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. 

9.10                 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 286 - Good faith - civil obligations

9.11                 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. 

9.12                 Subclause (2) extends contravention of the duty to a person involved in such a contravention.  What constitutes ‘involvement’ is set out in clause 284.

Clause 287 - Use of position - civil obligations

9.13                 This clause imposes a civil obligation on officers and employees of organisations and their branches in relation to use of position.

9.14                 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.

9.15                 Subclause (2) extends contravention of the duty to a person involved in such a contravention.

Clause 288 - Use of information - civil obligations

9.16                 This clause imposes a civil obligation on officers and employees of organisations and their branches in relation to use of information.

9.17                 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.

9.18                 Subclause (2) extends contravention of the duty to a person involved in such a contravention.

Clause 289 - Effect of ratification by members

9.19                 Subclause (1) clarifies that ratification of a breach of the civil duties set out in clauses 285 to 288 by the members of an organisation does not prevent or affect the instigation or determination of proceedings for contravention of those sections.

9.20                 Subclause (2) provides that the Court may take ratification of breaches of the civil duties set out in clauses 285 to 288 into account, provided the court has had regard to certain matters, in deciding what order to make in respect of a proceeding for contravention of any of those clauses.

Clause 290 - Compliance with statutory duties

9.21                 This clause provides that an action of an officer or employee does not contravene civil obligations in clauses 286, 287 or 288, if the action was required by another provision of the Registration and Accountability of Organisations Schedule or the WR Act.

Clause 291 - Interaction of sections 285 to 289 with other laws etc.

9.22                 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 judgment rule in subclause 285(2) is an exception to this general proposition.  The application of clause 291 is excluded to the extent to which it operates on the duty of due care and diligence at common law and equity.

Clause 292 - Reliance on information or advice provided by others

9.23                 As long as certain matters are satisfied, 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.

Clause 293 - Responsibility for actions of other person

9.24                 Subclause (1) provides that where a power is delegated to another person, the officer making the delegation is liable in respect of the exercise of that power as if he or she exercised the power personally. 

9.25                 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 Registration and Accountability of Organisations Schedule or the WR Act.



Chapter 10 - Civil Penalties

10.1           Chapter 10 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 304 - Simplified outline

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

Part 2 - Civil consequences of contravening civil penalty provisions

Clause 305 - Civil penalty provisions

10.3           This clause lists the civil penalty provisions contained in the Registration and Accountability of Organisations Schedule, and provides that application may be made to the Federal Court for orders in relation to contravention of a civil penalty provision.

10.4           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 306 - Pecuniary penalty orders that the Federal Court may make

10.5           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.

10.6           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 307 - Compensation orders

10.7           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 must compensate the organisation for damage it has suffered as a result of the contravention.

10.8           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 308 - Other orders

10.9           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.

10.10       Orders under this provision may be made irrespective of whether orders have also been made under clauses 306 or 307.

Clause 309 - Effect of section 307

10.11       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 310 - Who may apply for an order

10.12       This clause provides that the Industrial Registrar, or a person authorised in writing by the Industrial Registrar, may apply for an order relating to a contravention of a civil penalty provision.

10.13       Subclause (3) provides that an organisation may apply for a compensation order.

10.14       Under subclause (4), an organisation may intervene in an application for a pecuniary penalty order or order under clause 308 and is entitled to be heard on all matters other than whether the order should be made.

Clause 311 - Civil proceedings after criminal proceedings

10.15       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 312 - Criminal proceedings during civil proceedings

10.16       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.

10.17       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 313 - Criminal proceedings after civil proceedings

10.18       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 instituted.

Clause 314 - Evidence given in proceedings for penalty not admissible in criminal proceedings

10.19       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 315 - Relief from liability for contravention of civil penalty provision

10.20       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 316 - Power to grant relief

10.21       This clause enables the Federal Court to relieve an officer of an organisation from liability for negligence, default, breach of trust or breach of duty in their capacity as an officer of a registered organisation.



Chapter 11 - Miscellaneous

Part 1 - Simplified outline of Chapter

Clause 317 - Simplified outline

11.1           This clause provides a simplified outline of the content of each Part of Chapter 11.

Part 2 - Validating provisions for organisations

11.2                 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 318 - Definition

11.3                 This clause defines ‘invalidity’ as it is used in Part 2.

Clause 319 - Validation of certain acts done in good faith

11.4                 This clause validates acts done in good faith by a collective body of or an office holder in an organisation or branch. 

11.5                 Subclause (1) provides that, subject to other subclauses of this clause and clause 321, 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.

11.6                 Subclause (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.

11.7                 Subclause (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.

11.8                 Subclause (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.

11.9                 Subclause (5) applies the provisions of the clause to an act whether done before or after the commencement of the Registration and Accountability of Organisations Schedule.

11.10             Subclauses (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 for office.

Clause 320 - Validation of certain acts after 4 years

11.11             Subject to the clause and clause 321, the clause 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.

11.12             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 321 - Order affecting application of section 319 or 320

11.13             This clause enables the Federal Court, on application, if satisfied that substantial injustice would be done if clauses 319 or 320 applied in respect of a particular act, to order that they do not apply in relation to the act.

Clause 322 - Federal Court may make orders in relation to consequences of invalidity

11.14             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.

11.15             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 323 - Federal Court may order reconstitution of branch etc.

11.16             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. 

11.17             Subclause (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.

11.18             Subclause (2) provides that where a declaration is made under subclause (1), the Court may, by order, 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.  Where an order is made under this clause, the Court may give ancillary or consequential directions it considers appropriate (subclause (3)).

11.19             Subclause (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. 

11.20             The other provisions of the clause are of a technical nature.

Part 3 - Financial assistance and costs

Division 1 - Financial assistance

11.21             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 Registration and Accountability of Organisations Schedule, and circumstances in which costs can be ordered in proceedings under the Schedule.  These provisions reflect Part XII of the WR Act.

Clause 324 - Authorisation of financial assistance

11.22             Subclause (1) gives the Minister power to authorise financial assistance where it is reasonable to do so and refusal is likely to cause hardship to the applicant.

11.23             Subclause (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, election inquiries, disqualification from office, and certain ballot inquiries).

11.24             Subclause (3) defines the term ‘relevant costs’ for the purposes of the clause.

Clause 325 - Federal Court may certify that application was reasonable

11.25             This clause complements clause 324.  It enables the Federal Court to certify that where an application 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 326 - Applications under section 163, 164, 164A and 167

11.26             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)).

11.27             Subclause (2) provides a definition of the term ‘other relevant proceeding’ for the purposes of subclause (1).

11.28             Subclauses (3), (4) and (5) relate to amounts and timing of payments of amounts of the assistance.

Clause 327 - Fees for 2 counsel not normally to be paid

11.29             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 328 - Powers of Federal Court not affected

11.30             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 329 - Costs only where proceeding instituted vexatiously etc.

11.31             This clause provides that costs can only be ordered against a person party to a proceeding under the Registration and Accountability of Organisations Schedule 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

11.32             Part 4 gives the Industrial Registrar, or Registry officials, certain powers to make inquiries and investigate matters under the Registration and Accountability of Organisations Schedule.  These provisions expand on sections 280 and 280A of the WR Act.

Clause 330 - Registrar or staff may make inquiries

11.33             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.

11.34             This is a general inquiry power. Unlike investigations conducted by a Registrar under clause 331, there is no power of compulsion associated with inquiries under this clause.

Clause 331 - Registrar may conduct investigations

11.35             This clause makes provision for investigations by a Registrar.  Subclause (5) provides that an investigation may, but need not, follow an inquiry under clause 330.

11.36             Subclause (1) enables the Registrar, where satisfied that there are reasonable grounds for doing so, to conduct an investigation to determine whether there has been a contravention of 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.

11.37             The Registrar has similar powers in respect of civil penalty provisions (subclause (2)).

11.38             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 (subclauses (3) and (4)).

Clause 332 - Investigations arising from auditor’s report

11.39             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)).

11.40             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 252(4)), or the matters are considered trivial and likely to be remedied in the following financial year (subclause (2)).

11.41             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 333 - Investigations arising from request from members

11.42             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.

11.43             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 334 - Investigations arising from referral under section 278

11.44             This clause provides that, where a matter has been referred under clause 278, the Industrial Registrar must ensure that it is investigated by a Registrar.

Clause 335 - Conduct of investigations

11.45             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 336 - Action following an investigation

11.46             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)).

11.47             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 Registration and Accountability of Organisations Schedule, 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 247.

11.48             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)).

Clause 337 - Offences in relation to investigation by Registrar

11.49             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 335(2).  In addition, a person must not provide information or knowingly or recklessly make a statement that is false or misleading.

11.50             Subclause (2) provides that the offence in relation to subsection 335(2) is one of strict liability.

11.51             Subclause (3) provides that it is a defence to the offence in subsection 335(2) to have a reasonable excuse for the refusal or failure.

11.52             Under subclause (4), a person is not excused from providing information on the ground that the information provided might incriminate the person.  However, subclause (5) provides that any information obtained by requiring a person to give information under subclause 335(2) is inadmissible against the person in criminal proceedings or civil proceedings, other than proceedings relating to the offence under paragraphs (1)(b) or (c).

Part 5 - Jurisdiction of the Federal Court of Australia

11.53             The provisions in this Part of Chapter 11 reflect Divisions 2 and 3 of Part XIV of the WR Act.

Clause 338 - Jurisdiction of Federal Court

11.54             Subclause (1) vests the Federal Court with jurisdiction in relation to matters arising under the Registration and Accountability of Organisations Schedule in relation to which:

·      applications can be made or actions brought under the Schedule;

·      questions can be referred to it under the Schedule or the WR Act;

·      penalties may be sued for or recovered under the Schedule; or

·      prosecutions may be instituted for offences under the Schedule (subclause (1)).

11.55             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 Schedule (subclause (2)).

11.56             It is also given jurisdiction relating to matters remitted under section 44 of the Judiciary Act 1903 (subclause (3)).

Clause 339 - Exclusive jurisdiction

11.57             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 340 - Exercise of Court’s original jurisdiction

11.58             This clause requires the jurisdiction of the Federal Court to be exercised by a Full Court in relation to particular matters.

Clause 341 - Reference of proceedings to Full Court

11.59             This clause provides that, at any stage of a proceeding in a matter arising under the Registration and Accountability of Organisations Schedule, 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 342 - Appeal to the Court from certain judgments

11.60             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

11.61             The provisions of this Part largely reflect provisions in Part XIII of the WR Act. 

Clause 343 - Delegation by Minister

11.62             This clause permits the Minister to delegate all or any of the Minister’s powers under the Registration and Accountability of Organisations Schedule to the Secretary of the Department or an SES or acting SES employee.

Clause 344 - Conduct by officers, directors, employees or agents

11.63             Under subclause (1), if it is necessary for the purposes of the Registration and Accountability of Organisations Schedule 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.

11.64             Subclause (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.

11.65             Subclause (3) defines the term ‘state of mind’.

Clause 345 - Right to participate in ballots

11.66             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 346 - Requests by members for information concerning elections and certain ballots

11.67             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 347 - Providing copy of rules or list of offices etc. on request by member

11.68             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 348 - Certificate as to membership of organisation

11.69             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 349 - List of officers to be evidence

11.70             This clause provides that a list of officers of an organisation or branch lodged in the Industrial Registry under the Registration and Accountability of Organisations Schedule 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 350 - Unauthorised collection of money

11.71             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.  The maximum penalty for these offences is 20 penalty units.

Clause 351 - No imprisonment in default

11.72             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 Registration and Accountability of Organisations Schedule.

Clause 352 - Jurisdiction of courts limited as to area

11.73             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 353 - Public sector employer to act through employing authority

11.74             Under this clause employers in public sector employment are required to act for the purposes of the Registration and Accountability of Organisations Schedule 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 354 - Proceedings by and against unincorporated clubs

11.75             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 Registration and Accountability of Organisations Schedule that may be taken by or against such a club may be taken by or against the treasurer.

Clause 355 - Inspection of documents etc.

11.76             This is a procedural provision permitting inspection of documents in proceedings before the Commission.

Clause 356 - Trade secrets etc. tendered as evidence

11.77             This clause sets down procedures to be followed in proceedings before the Federal Court and the Commission where a person objects to evidence being tendered on the basis that it is a trade secret, relates to a trade secret, or relates to the financial position of a witness or party.  The Court and Commission are given powers to restrict access to such evidence.

Clause 357 - Application of penalty

11.78             This clause enables a court imposing a monetary penalty under the Registration and Accountability of Organisations Schedule to order either all or part of the penalty to be paid into consolidated revenue or to a particular organisation or person.

Clause 358 - Enforcement of penalties etc.

11.79             This clause relates to the enforcement of penalties imposed under the Registration and Accountability of Organisations Schedule and orders as to costs and expenses.

Clause 359 - Regulations

11.80             This clause provides regulation making powers for the purposes of the Registration and Accountability of Organisations Schedule, 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 certain employers to provide information about money received from an organisation for the provision of facilities for payroll deductions of membership dues, and 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)).

Part 7 - Complementary registration systems

11.81             Part 7 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 judgment of the Commonwealth Industrial Court in Moore v Doyle (1969) 15 FLR 59.

Division 1 - Application of this Part

11.82             Division 1 sets out how Part 7 applies.

Clause 360 - Complementary registration systems

11.83             Clause 360 provides that Part 7 applies where:

·     an organisation is divided into branches;

·     one or more of the branches is confined to a particular State (prescribed in the regulations); and

·     the organisation proposes to amalgamate with an associated body (as defined in Part 7) for the purpose of seeking the non-corporate registration of the branch. 

11.84             In such a case, Part 7 applies to the organisation, but only to the branches seeking amalgamation.

Division 2 - Preliminary

Clause 361 - Definitions

11.85             Clause 361 provides definitions of ‘amalgamation’, ‘associated body’ and ‘State’, as they apply in Part 7 of Chapter 11.

Division 3 - Branch rules

11.86             Division 3 provides for a separate Branch fund.  Provision is also made in Division 3 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.

Clause 362 - Branch funds

11.87             Clause 362 provides that the rules of the association must provide for a fund that is to be managed and controlled by the branch.  Subclause 362(2) specifies that the branch fund is to consist of:

·     real or personal property;

·     amounts of entrance fees, subscriptions, fines, fees, levies and the like;

·     interest, rent, dividends and other income;

·     certain funds maintained by the branch for its members, such as sick pay funds, accident pay funds and on the like;

·     property acquired wholly or mainly from expenditure of the money of the fund or from other assets of the fund;

·     the proceeds of disposal of parts of the fund.

11.88             However, the Commission may grant an exemption to the organisation, provided the organisation’s rules make adequate and reasonable provision for its funds, having regard to its operation under the Registration and Accountability of Organisations Schedule, the WR Act and its participation in any State workplace relations system.

Clause 363 - Obligation of Commission in relation to application under section 158

11.89             Under section 158 of the Registration and Accountability of Organisations Schedule, an organisation may change its name or alter its eligibility rules, provided the Commission consents to the change or alteration.  Clause 363 lays down the obligations of the Commission in considering an application under section 158, where the change may have implications in the context of complementary registration in a State workplace relations system.

11.90             Subclause (2) requires the Commission to consider whether there might be an associated body registered under a prescribed State Act, and whether the change would enable the organisation to represent a class of persons under the State Act.

11.91             Where the alteration of the rule might result in a change in the class of persons eligible for membership of the branch of the organisation registered under a State law, the Commission must give notice of the proposed change to the industrial registrar of the State in question (or other similar officer).  In addition, the Commission must consult with the industrial registrar or other officer, if so requested (subclause (3)).

Clause 364 - Branch autonomy

11.92             Clause 364 requires the rules of the Branch to ensure that the Branch has autonomy, at least insofar as they concern matters of the members of the branch and matters concerning participate of the branch in a State workplace relations system.

Clause 365 - Organisation may participate in State systems

11.93             Clause 365 makes it clear that, provided it is in accordance with the rules of the organisation, the organisation may participate in a State workplace relations system.  This includes registration under a law of a State, provide this does not involve the organisation being incorporated or otherwise becoming a legal entity, under the law of the State.

Division 4 - Amalgamation of organisation and associated body

11.94             Division 4 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.

Clause 366 - Organisation and associated body may amalgamate

11.95             Clause 366 makes it clear that an organisation and an associated body may amalgamate in the manner specified in the division.

Clause 367 - Procedure for amalgamation

11.96             Clause 367 lays down the procedure for amalgamation between an organisation and an associated body. 

11.97             In the first instance, each committee of management of the organisation and associated bodies must pass as resolution proposing the amalgamation and specifying the detail of the amalgamation (subclause (1)).  The organisation must then make an application to the Commission for approval of the application, including a copy of the changes to the organisation’s rules with the application (subclauses (2) to (4)).

11.98             Upon receiving the application, subclause (5) requires the Commission to decide how interested parties will be notified of the application and fix a period for objections to be lodged.

11.99             Subclause (6) sets out which organisations may lodge objections, while subclause (7) lays down the grounds for objecting to the amalgamation.  If any objections are lodged (or if the Commission otherwise considers it necessary), subclause (8) requires the Commission to organise a hearing.

11.100         Subclause (9) states that the Commission must approve the application provided that:

·     no objection is justified;

·     clause 367 has been complied with;

·     the amalgamation would not do substantial injustice to the members of the organisation or the associated body;

·     the proposed alterations of the organisation’s rules are appropriate; and

·     sufficient arrangements have been made relating to property and liabilities of the associated body (subclause (10)).

11.101         Subclauses (11) and (12) detail when the amalgamation takes effect and the consequences for the members of the associated body.

Division 5 - Exercise of Commission’s powers

Clause 368 - Exercise of Commissions powers under this Part

11.102         Clause 368 provides that the powers of the Commission under Part 7 are only exercisable by a Presidential Member.