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Workplace Relations (Registered Organisations) Bill 2001

Part 3 Withdrawal from amalgamations

Division 1 General

101   Object of Part

                   The object of this Part is to provide for:

                     (a)  certain organisations that have taken part in amalgamations (either under this Act or the Workplace Relations Act as in force before the commencement of this Part) to be reconstituted and re-registered; and

                     (b)  branches of organisations of that kind to be formed into organisations and registered;

in a way that is fair to the members of the organisations concerned and the creditors of those organisations.

102   Definitions etc.

             (1)  In this Part, unless the contrary intention appears:

amalgamated organisation , in relation to an amalgamation, means the organisation of which members of a de-registered organisation became members under paragraph 83(3)(d) but does not include any such organisation that was subsequently de-registered under Part 2.

asset has the same meaning as in Part 2.

ballot means a ballot conducted under Division 2.

constituent member , in relation to a constituent part of an amalgamated organisation, means:

                     (a)  in the case of a separately identifiable constituent part—a member of the amalgamated organisation who is included in that part; or

                     (b)  in any other case—a member of the amalgamated organisation who would be eligible for membership of the constituent part if:

                              (i)  the constituent part; or

                             (ii)  the organisation of which the constituent part was a branch;

                            as the case requires, were still registered as an organisation with the same rules as it had when it was de-registered under Part 2.

constituent part , in relation to an amalgamated organisation, means:

                     (a)  a separately identifiable constituent part; or

                     (b)  a part of the membership of the amalgamated organisation that would have been eligible for membership of:

                              (i)  an organisation de-registered under Part 4 in connection with the formation of the amalgamated organisation; or

                             (ii)  a State or Territory branch of such a de-registered organisation;

                            if the de-registration had not occurred.

liability has the same meaning as in Part 2.

newly registered organisation means an organisation registered under section 119.

separately identifiable constituent part , in relation to an amalgamated organisation, means:

                     (a)  if an organisation de-registered under Part 2 in connection with the formation of the amalgamated organisation remains separately identifiable under the rules of the amalgamated organisation as a branch, division or part of that organisation—that branch, division or part; or

                     (b)  if a State or Territory branch of such a de-registered organisation under its rules as in force immediately before its de-registration remains separately identifiable under the rules of the amalgamated organisation as a branch, division or part of that organisation—that branch, division or part.

             (2)  For the purposes of this Part, an organisation is taken to have been de-registered under Part 2 in connection with the formation of an amalgamated organisation if the de-registration occurred in connection with the formation of:

                     (a)  the amalgamated organisation; or

                     (b)  another organisation that was subsequently de-registered under Part 2 in connection with the formation of:

                              (i)  the amalgamated organisation; or

                             (ii)  an organisation that, through one or more previous applications of this subsection, is taken to have been de-registered under Part 2 in connection with the formation of the amalgamated organisation.



 

Division 2 Ballots for withdrawal from amalgamated organisations

103   Applications to the Federal Court for ballots

             (1)  An application may be made to the Federal Court for a ballot to be held, to decide whether a constituent part of an amalgamated organisation should withdraw from the organisation, if:

                     (a)  the constituent part became part of the organisation as a result of an amalgamation under:

                              (i)  Division 7 of Part IX of the Workplace Relations Act (as in force before the commencement of this Part) after 1 February 1991; or

                             (ii)  Part 2 of this Chapter; and

                     (b)  the amalgamation occurred no less than 2 years prior to the date of the application; and

                     (c)  the application is made:

                              (i)  if the amalgamation occurred before 31 December 1996—before the first anniversary of the commencement of this section or, if a later date is prescribed, before that later date; or

                             (ii)  if the amalgamation occurred on or after 31 December 1996—no more than 5 years after the amalgamation occurred.

             (2)  However, an application cannot be made if:

                     (a)  during the last 12 months, the Court has rejected an application for a ballot to be held in relation to the constituent part of the organisation; or

                     (b)  a ballot was held that rejected the withdrawal of the constituent part.

             (3)  The application may be made by:

                     (a)  the prescribed number of constituent members; or

                     (b)  a person authorised to make the application by the prescribed number of constituent members; or

                     (c)  a committee of management elected entirely or substantially by the constituent members, whether by a direct voting system or a collegiate electoral system; or

                     (d)  if the application relates to a separately identifiable constituent part—the committee of management of that part; or

                     (e)  a person who is:

                              (i)  either a constituent member or a member of a committee of management referred to in paragraph (c) or (d); and

                             (ii)  authorised to make the application by a committee of management referred to in paragraph (c) or (d).

             (4)  A constituent member of an amalgamated organisation who is not a financial member is taken not be a constituent member for the purposes of subsection (3).

             (5)  The application must be in the prescribed form and must contain such information as is prescribed.

             (6)  The regulations may prescribe the manner in which an authorisation for the purposes of paragraph (3)(b) and subparagraph (3)(e)(ii) must be made.

104   Outline of proposed withdrawal

             (1)  The application must be accompanied by a written outline of the proposal for the constituent part to withdraw from the amalgamated organisation. Subject to subsection (2), the outline must:

                     (a)  provide, in no more than 3,000 words, sufficient information on the proposal to enable the constituent members to make informed decisions in relation to the proposed withdrawal; and

                     (b)  address such matters as are prescribed.

             (2)  The outline may, if the Federal Court allows, consist of more than 3,000 words.

             (3)  The outline must be a fair and accurate representation of the proposed withdrawal and must address any matters prescribed for the purposes of paragraph (1)(b) in a fair and accurate manner.

             (4)  If the Federal Court is not satisfied that the outline complies with subsection (3), the Court must order the making of such amendments to the outline as it considers are needed for the outline to comply with that subsection.

105   Amendment of application etc.

                   After an application has been made, the Federal Court may allow any of the following people to amend it, or take any other action in relation to it that is necessary to enable the application to meet the requirements of this Part:

                     (a)  the person or persons who made the application;

                     (b)  a person authorised for the purposes of this section by the person or persons;

                     (c)  a person authorised by the rules of the constituent part to make the amendment.

106   Filing the “yes” case

             (1)  The applicant or applicants may file with the Federal Court a written statement of no more than 2,000 words in support of the proposal for the constituent part to withdraw from the amalgamated organisation.

             (2)  The statement must either:

                     (a)  accompany the application; or

                     (b)  be filed within such later time as the Court allows.

             (3)  The Court may order that the statement be amended, in accordance with the order, to correct factual errors or otherwise to ensure that it complies with this Act.

107   Filing the “no” case

             (1)  The amalgamated organisation may file with the Federal Court a written statement of no more than 2,000 words in opposition to the proposal for the constituent part to withdraw from the organisation.

             (2)  The statement must be filed either:

                     (a)  not later than 7 days before the day set down for the hearing of the application in question by the Court; or

                     (b)  within such later time as the Court allows.

             (3)  The Court may order that the statement be amended, in accordance with the order, to correct factual errors or otherwise to ensure that it complies with this Act.

108   Provisions relating to outlines and statements of “yes” and “no” cases

             (1)  An outline under section 104 or a statement under section 106 or 107 may, if the Federal Court allows, include matter that is not in the form of words, including, for example, diagrams, drawings, illustrations, photographs and symbols.

             (2)  The Court may allow an outline under section 104, or a statement under section 106 or 107, to be amended by whoever filed the outline or statement with the Court.

109   Notifying of applications for ballots

             (1)  If an application is made under section 103, the Registrar of the Federal Court must immediately notify the AEC of the application.

             (2)  On being notified of the application, the AEC must immediately take such action as it considers necessary or desirable to enable it to conduct, as quickly as possible, any ballot that may be required as a result of the application.

110   Orders for ballots

             (1)  The Federal Court must order that a vote of the constituent members be taken by secret ballot, to decide whether the constituent part of the amalgamated organisation should withdraw from the organisation, if the Court is satisfied that:

                     (a)  the application for the ballot is validly made under section 103; and

                     (b)  the outline under section 104 relating to the application:

                              (i)  is a fair and accurate representation of the proposal for withdrawal from the organisation; and

                             (ii)  addresses any matters prescribed for the purposes of paragraph 104(1)(b) in a fair and accurate manner; and

                     (c)  the proposal for withdrawal from the organisation complies with any requirements specified in the regulations.

             (2)  In considering whether to order that a ballot be held, the Court may hear from:

                     (a)  an applicant for the ballot; and

                     (b)  the amalgamated organisation; and

                     (c)  a creditor of the amalgamated organisation; and

                     (d)  any other person who would be affected by the withdrawal of the constituent part from the amalgamated organisation.

             (3)  If the Court orders that a ballot be held, it may make such orders as it thinks fit in relation to the conduct of the ballot.

111   Financial members only eligible to vote

                   A constituent member of an amalgamated organisation is not eligible to vote in a ballot under this Division unless the person:

                     (a)  is a financial member of the organisation; or

                     (b)  is in a class of members prescribed for the purposes of this section.

112   Conduct of ballots

             (1)  All ballots are to be conducted by the AEC in accordance with the regulations.

             (2)  The ballot paper sent to the constituent members of a constituent part of an amalgamated organisation in connection with a proposal for the constituent part to withdraw from the amalgamated organisation must be accompanied by:

                     (a)  a copy of the outline under section 104 relating to the proposed withdrawal; and

                     (b)  if there is a statement under section 106 in support of the proposed withdrawal—a copy of that statement; and

                     (c)  if there is a statement under section 107 in opposition to the proposed withdrawal—a copy of that statement; and

                     (d)  a declaration envelope in the approved form.

             (3)  In a ballot conducted under this section, each completed ballot paper must be returned to the AEC in the declaration envelope provided to the voter with the ballot paper.

113   Providing information etc. to electoral officials

             (1)  An electoral official may, if:

                     (a)  it is reasonably necessary for the purposes of a ballot that may be, or is, required to be held; and

                     (b)  the official is authorised by the AEC under this section for the purposes of the ballot;

require (by written notice) an officer or employee of the amalgamated organisation concerned or of a branch of the organisation:

                     (c)  to give to the official, within the period (of not less than 7 days after the notice is given) and in the manner specified in the notice, any information within the knowledge or in the possession of the person; and

                     (d)  to produce or make available to the official, at a reasonable time (being a time not less than 7 days after the notice is given) and place specified in the notice, any documents in the custody or under the control of the person, or to which he or she has access.

             (2)  An officer or employee of an organisation or branch of an organisation must comply with a requirement made under subsection (1).

Maximum penalty:    30 penalty units.

             (3)  A person is not excused from giving information or producing or making available a document under this section on the ground that the information or the production or making available of the document might tend to incriminate the person or expose the person to a penalty.

             (4)  However:

                     (a)  giving the information or producing or making available the document; or

                     (b)  any information, document or thing obtained as a direct or indirect consequence of giving the information or producing or making available the document;

is not admissible in evidence against the person in criminal proceedings or proceedings that may expose the person to a penalty, other than proceedings under, or arising out of, subsection 114(3).

             (5)  If any information or document specified in a notice under subsection (1) is kept in electronic form, the electoral official may require it to be made available in that form.

114   Declaration by secretary etc. of organisation

             (1)  If a requirement is made under subsection 113(1) in relation to the register, or part of the register, kept by an organisation under section 219, the secretary or other prescribed officer of the organisation must make a declaration, in accordance with subsection (2), that the register has been maintained as required by subsection 219(2).

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

             (2)  The declaration must be:

                     (a)  signed by the person making it; and

                     (b)  given to the returning officer, and lodged in the Industrial Registry, as soon as practicable but no later than the day before the first day of voting in the relevant election.

             (3)  A person must not, in a declaration for the purposes of subsection (1), make a statement if the person knows, or is reckless as to whether, the statement is false or misleading.

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

115   Offences in relation to ballots

Interference with ballot papers

             (1)  A person must not, without lawful authority or excuse, in relation to a ballot:

                     (a)  impersonate another person to secure a ballot paper to which the impersonator is not entitled or impersonate another person for the purpose of voting; or

                     (b)  destroy, deface, alter, take or otherwise interfere with a ballot paper or envelope; or

                     (c)  put or deliver a ballot paper or other paper:

                              (i)  into a ballot box or other ballot receptacle;

                             (ii)  into the post; or

                            (iii)  to a person receiving ballot papers for the purposes of the ballot; or

                     (d)  record a vote that the person is not entitled to record; or

                     (e)  record more than one vote; or

                      (f)  forge a ballot paper or envelope, or utter a ballot paper or envelope that the person knows to be forged; or

                     (g)  provide a ballot paper; or

                     (h)  obtain or have possession of a ballot paper; or

                      (i)  destroy, take, open or otherwise interfere with a ballot box or other ballot receptacle.

Maximum penalty:    30 penalty units.

Hindering the ballot, threats and bribes etc.

             (2)  A person must not, without lawful authority or excuse, in relation to a ballot:

                     (a)  hinder or obstruct the taking of the ballot; or

                     (b)  use any form of intimidation or inducement to prevent from voting, or to influence the vote of, a person entitled to vote at the ballot; or

                     (c)  threaten, offer or suggest, or use, cause, inflict or procure, any violence, injury, punishment, damage, loss or disadvantage with the intention of influencing or affecting:

                              (i)  any vote or omission to vote; or

                             (ii)  any support of, or opposition to, voting in a particular manner; or

                            (iii)  any promise of any vote, omission, support or opposition; or

                     (d)  offer or promise any property or benefit of any kind with the intention of influencing or affecting anything referred to in subparagraph (c)(i), (ii) or (iii); or

                     (e)  ask for or obtain, or offer or agree to ask for or obtain, any property or benefit of any kind (whether for that person or another person), on the understanding that anything referred to in subparagraph (c)(i), (ii) or (iii) will be influenced or affected in any way; or

                      (f)  counsel or advise a person entitled to vote to refrain from voting.

Maximum penalty:    30 penalty units.

Secrecy of vote

             (3)  A person (in this subsection called the relevant person ) must not, without lawful authority or excuse, in relation to a ballot:

                     (a)  request, require or induce another person to show a ballot paper to the relevant person, or permit the relevant person to see a ballot paper, in such a manner that the relevant person can see the vote, while the ballot paper is being marked or after it has been marked; or

                     (b)  if the relevant person is a person performing duties for the purposes of the ballot, show to another person, or permit another person to have access to, a ballot paper used in the ballot, otherwise than in the performance of the duties.

Maximum penalty:    30 penalty units.

116   Notifying of results of ballots

                   Notice of the result of a ballot held must be given in accordance with the regulations.

117  Post-ballot report by AEC

             (1)  After the completion of the ballot, the AEC must give a report on the conduct of the ballot to:

                     (a)  the Federal Court; and

                     (b)  the Industrial Registrar; and

                     (c)  each applicant under section 103; and

                     (d)  the amalgamated organisation from which the constituent part withdrew or sought to withdraw.

             (2)  The report must include details of the prescribed matters.

             (3)  If the AEC is of the opinion that the register of members, or the part of the register, made available to the AEC for the purposes of the ballot, contained at the time of the ballot:

                     (a)  an unduly large proportion of members’ addresses that were not current; or

                     (b)  an unduly large proportion of members’ addresses that were workplace addresses;

this fact must be included in the report.



 

Division 3 Giving effect to ballots

118   Determining the day of withdrawal

             (1)  If more than 50% of the formal votes cast in a ballot are in favour of a constituent part of an amalgamated organisation withdrawing from the organisation, the Federal Court must, on application:

                     (a)  determine the day on which the withdrawal is to take effect; and

                     (b)  make such orders as are necessary to apportion the assets and liabilities of the amalgamated organisation between the amalgamated organisation and the constituent part; and

                     (c)  make such other orders as it thinks fit in connection with giving effect to the withdrawal.

             (2)  In making an order under paragraph (1)(b), the Court must have regard to:

                     (a)  the assets and liabilities of the constituent part before it, or the organisation of which it was a State or Territory branch, was de-registered under Part 2 in connection with the formation of the amalgamated organisation; and

                     (b)  any change in the net value of those assets or liabilities that has occurred since the amalgamation; and

                     (c)  the interests of the creditors of the amalgamated organisation.

             (3)  An application to the Court under subsection (1) may be made by:

                     (a)  the prescribed number of constituent members; or

                     (b)  a person authorised to make the application by the prescribed number of constituent members; or

                     (c)  a committee of management elected entirely or substantially by the constituent members, whether by a direct voting system or a collegiate electoral system; or

                     (d)  if the application relates to a separately identifiable constituent part—the committee of management of that part; or

                     (e)  a person who is:

                              (i)  either a constituent member or a member of a committee of management referred to in paragraph (c) or (d); and

                             (ii)  authorised to make the application by a committee of management referred to in paragraph (c) or (d).

             (4)  A constituent member of an amalgamated organisation who is not a financial member is taken not to be a constituent member for the purposes of subsection (3).

             (5)  The application must be in the prescribed form and must contain such information as is prescribed.

             (6)  The regulations may prescribe the manner in which an authorisation for the purposes of paragraph (3)(a) and subparagraph (e)(ii) must be made.

119   Registration of constituent part

                   The Industrial Registrar must, with effect from the day determined under paragraph 118(1)(a):

                     (a)  register the constituent part as an organisation in the register kept under paragraph 11(1)(a); and

                     (b)  enter in the register such other particulars in relation to the organisation as are prescribed.

120   Choice of organisation following withdrawal of separately identifiable constituent part

             (1)  This section applies in the case of a withdrawal from amalgamation under this Part by a separately identifiable constituent part of an amalgamated organisation.

             (2)  As soon as practicable after the constituent part is registered as an organisation under section 119, the amalgamated organisation must send a written statement in accordance with subsection (3) to each person who, immediately before that registration, was a member of the amalgamated organisation attached to the constituent part.

             (3)  The statement must:

                     (a)  inform the person of the withdrawal from amalgamation of the constituent part; and

                     (b)  invite the person to give written notice, within a period of 28 days after being sent the statement (the notice period ), to the amalgamated organisation or to the newly registered organisation that:

                              (i)  the person wants to remain a member of the amalgamated organisation; or

                             (ii)  the person wants to become a member of the newly registered organisation; and

                     (c)  explain the effect of responding, or failing to respond, to the invitation.

             (4)  As soon as practicable after the amalgamated organisation receives a notice under paragraph (3)(b), it must notify the newly registered organisation of the receipt. As soon as practicable after the newly registered organisation receives a notice under paragraph (3)(b), it must notify the amalgamated organisation of the receipt.

             (5)  If a person referred to in subsection (2) gives written notice in accordance with paragraph (3)(b), within the notice period, that he or she wants to become a member of the newly registered organisation, he or she:

                     (a)  ceases, by force of this subsection, to be a member of the amalgamated organisation with effect from the day on which the notice is received by the amalgamated organisation or the newly registered organisation (as the case may be); and

                     (b)  becomes, by force of this subsection and without payment of entrance fee, a member of the newly registered organisation with effect from the day after the day referred to in paragraph (a).

             (6)  If a person referred to in subsection (2):

                     (a)  gives written notice in accordance with paragraph (3)(b) within the notice period that he or she wants to remain a member of the amalgamated organisation; or

                     (b)  fails to give written notice in accordance with paragraph (3)(b) within the notice period;

he or she remains a member of the amalgamated organisation.

             (7)  A person who ceases to be a member of the amalgamated organisation because of the operation of subsection (5):

                     (a)  is not liable to make any payment because the person gave no notice, or insufficient notice, of ceasing to be such a member under the rules of the organisation; and

                     (b)  otherwise, remains liable for such payments as are due in accordance with those rules.

             (8)  Notwithstanding paragraph (6)(b), if a person to whom that paragraph would apply, at any time before the day upon which the constituent part is registered as an organisation under section 119, gives notice in writing to the amalgamated organisation or to the applicant for a ballot under section 103 that they wish to become a member of the newly registered organisation upon its registration under section 119, that person:

                     (a)  ceases, by force of this subsection, to be a member of the amalgamated organisation with effect from the day after the end of the notice period; and

                     (b)  becomes, by force of this subsection and without payment of entrance fee, a member of the newly registered organisation with effect from the day after the day referred to in paragraph (a).

             (9)  As soon as practicable after the end of the notice period, the amalgamated organisation must notify the newly registered organisation of any notices under subsection (8) it has received. As soon as practicable after the end of the notice period, the newly registered organisation must notify the amalgamated organisation of any notices under subsection (8) the applicant under section 103 has received.

121   Members of amalgamated organisation may join newly registered organisation

                   A person who is a member of the amalgamated organisation from which the constituent part withdrew to form a newly registered organisation may become a member of the newly registered organisation without payment of entrance fee if the person is eligible for membership of it.

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

             (1)  This section applies to an order of the Commission, an award, certified agreement or old IR agreement that was, immediately before the day the registration takes effect, binding on the amalgamated organisation in relation to the constituent part of the organisation and its members.

             (2)  On and from the day the registration takes effect, the order, award, certified agreement or old IR agreement:

                     (a)  becomes binding on the newly registered organisation and its members; and

                     (b)  has effect for all purposes (including the obligations of employers and organisations of employers) as if references in the order, award or agreement to the amalgamated organisation included references to the newly registered organisation.

123   Certified agreements made after withdrawal etc.

             (1)  This section applies to a certified agreement made under Division 2 of Part VIB of the Workplace Relations Act or an agreement mentioned in subsection 5AA(2) or (3) of that Act that:

                     (a)  is made on or after the day the registration takes effect; and

                     (b)  is binding on the amalgamated organisation; and

                     (c)  covers employees who are eligible to be members of the newly registered organisation.

             (2)  On and from the day the agreement becomes binding on the amalgamated organisation, it also:

                     (a)  becomes binding on the newly registered organisation and its members; and

                     (b)  has effect for all purposes (including the obligations of employers and organisations of employers) as if references in the agreement to the amalgamated organisation included references to the newly registered organisation.

             (3)  However, subsection (2) only applies to an agreement to which subsection 170M(3) of the Workplace Relations Act applied if the newly registered organisation satisfies the Commission that it has at least one member:

                     (a)  whose employment will be subject to the agreement; and

                     (b)  whose industrial interests the organisation is entitled to represent in relation to work that will be subject to the agreement; and

                     (c)  who requested that the organisation be bound by the agreement.

             (4)  Subsection (2) ceases to have effect on the day occurring 5 years after the registration of the newly registered organisation takes effect.

124   Other matters

                   The regulations may provide for any other matters relating to giving effect to the withdrawal of constituent parts from amalgamated organisations, including any matter related to:

                     (a)  the transfer of assets and liabilities of an amalgamated organisation to a newly registered organisation; and

                     (b)  the extent to which a newly registered organisation is bound or otherwise affected by any agreements, arrangements or other instruments binding on or otherwise affecting an amalgamated organisation; and

                     (c)  the extent to which an amalgamated organisation continues, after a registration under section 119 takes effect, to be bound or otherwise affected by any agreements, arrangements or other instruments binding on or otherwise affecting the amalgamated organisation; and

                     (d)  the extent to which a newly registered organisation becomes a party to any proceedings to which an amalgamated organisation is a party; and

                     (e)  the extent to which an amalgamated organisation continues to be a party to any proceedings to which the amalgamated organisation was a party immediately before a registration under section 119 takes effect; and

                      (f)  the appointment of officers of an amalgamated organisation as officers of a newly registered organisation, and the consequences of such appointments.

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

             (1)  This Division applies, and must be given effect to, despite anything in:

                     (a)  any other Commonwealth, State or Territory law; or

                     (b)  any contract, deed, undertaking, agreement or other instrument.

             (2)  Nothing done by this Division, and nothing done by a person because of, or for a purpose connected with or arising out of, this Division:

                     (a)  is to be regarded as:

                              (i)  placing an organisation or other person in breach of contract or confidence; or

                             (ii)  otherwise making an organisation or other person guilty of a civil wrong; or

                     (b)  is to be regarded as placing an organisation or other person in breach of:

                              (i)  any Commonwealth, State or Territory law; or

                             (ii)  any contractual provision prohibiting, restricting or regulating the assignment or transfer of any asset or liability or the disclosure of any information; or

                     (c)  is taken to release any surety, wholly or in part, from all or any of the surety’s obligations.

             (3)  Without limiting subsection (1), if, apart from this section, the consent of a person would be necessary in order to give effect to this Division in a particular respect, the consent is taken to have been given.



 

Division 4 Miscellaneous

126   Federal Court may resolve difficulties

             (1)  If any difficulty arises in relation to the application of this Part to a particular matter, the Federal Court may, on the application of an interested person, make such order as it thinks proper to resolve the difficulty.

             (2)  An order made under subsection (1) has effect despite:

                     (a)  any Commonwealth, State or Territory law; or

                     (b)  the rules of an organisation or any association proposed to be registered as an organisation.

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

             (1)  Neither of the following constitutes a breach of the rules of an amalgamated organisation:

                     (a)  an act done, or omitted to be done, under or for the purposes of this Part, or regulations made for the purposes of this Part;

                     (b)  an act done, or omitted to be done, in connection with the proposal of, or preparation for, an act or omission of a kind referred to in paragraph (a).

             (2)  The following are examples of acts and omissions to which subsection (1) applies:

                     (a)  making an application under section 103;

                     (b)  supporting, or supporting the making of, an application under section 103;

                     (c)  participating in, or encouraging a person to participate in, a ballot under Division 2;

                     (d)  not participating in a ballot under Division 2;

                     (e)  encouraging a person not to participate in a ballot under Division 2;

                      (f)  casting a vote in a particular way in a ballot under Division 2;

                     (g)  encouraging a person to cast a vote in a particular way in a ballot under Division 2;

                     (h)  complying with an order or requirement made under this Part or regulations made for the purposes of this Part; or

                      (i)  encouraging a person to resign his or her membership of the amalgamated organisation from which the constituent part withdrew to form the newly registered organisation so that the person can become a member of the newly registered organisation.

128   Amalgamated organisation not to penalise members etc.

             (1)  The amalgamated organisation, or an officer or member of the organisation, must not impose, or threaten to impose, a penalty, forfeiture or disability of any kind on:

                     (a)  a member or officer of the organisation; or

                     (b)  a branch, or other part, of the organisation;

because the member, officer, branch or part concerned does, or proposes to do, an act or omission referred to in section 127.

             (2)  The Federal Court may, if the Court considers it appropriate in all the circumstances, make one or more of the following orders in respect of conduct that contravenes subsection (1):

                     (a)  an order imposing on a person whose conduct contravenes that subsection a penalty of not more than:

                              (i)  in the case of a body corporate—100 penalty units; or

                             (ii)  in any other case—20 penalty units;

                     (b)  an order requiring the person not to carry out a threat made by the person, or not to make any further threat;

                     (c)  injunctions (including interim injunctions), and any other orders, that the Court considers necessary to stop the conduct or remedy its effects;

                     (d)  any other consequential orders.

             (3)  An application for an order under subsection (2) may be made by:

                     (a)  a person against whom the conduct is being, has been , or is threatened to be, taken; or

                     (b)  any other person prescribed by the regulations.

             (4)  For the purposes of this section, action done by one of the following bodies or persons is taken to have been done by an amalgamated organisation:

                     (a)  the committee of management of the amalgamated organisation;

                     (b)  an officer or agent of the amalgamated organisation acting in that capacity;

                     (c)  a member or group of members of the amalgamated organisation acting under the rules of the organisation;

                     (d)  a member of the amalgamated organisation, who performs the function of dealing with an employer on behalf of other members of the organisation, acting in that capacity.

             (5)  Paragraphs (4)(c) and (d) do not apply if:

                     (a)  a committee of management of the amalgamated organisation; or

                     (b)  a person authorised by the committee; or

                     (c)  an officer of the amalgamated organisation;

has taken reasonable steps to prevent the action.

             (6)  In this section:

amalgamated organisation includes a branch of an amalgamated organisation.

officer , in relation to an amalgamated organisation, includes:

                     (a)  a delegate or other representative of the organisation; and

                     (b)  an employee of the organisation.



 

Chapter 4 Representation orders