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Workplace Relations (Registered Organisations) Bill 2001

Part 2 Representation orders

   

130   Orders about representation rights of organisations of employees

             (1)  Subject to this Chapter and subsection 149(6), the Commission may, on the application of an organisation, an employer or the Minister, make the following orders in relation to a demarcation dispute:

                     (a)  an order that an organisation of employees is to have the right, to the exclusion of another organisation or other organisations, to represent under this Act or the Workplace Relations Act the industrial interests of a particular class or group of employees who are eligible for membership of the organisation;

                     (b)  an order that an organisation of employees that does not have the right to represent under this Act or the Workplace Relations Act the industrial interests of a particular class or group of employees is to have that right;

                     (c)  an order that an organisation of employees is not to have the right to represent under this Act or the Workplace Relations Act the industrial interests of a particular class or group of employees who are eligible for membership of the organisation.

Note:          Section 149 deals with agreements between organisations of employees and State unions.

             (2)  The Commission may, on application by an organisation, an employer or the Minister, vary an order made under subsection (1).

131   Preconditions for making of orders

             (1)  The Commission must not make an order unless:

                     (a)  it has decided under section 100 of the Workplace Relations Act not to refer the dispute for conciliation; or

                     (b)  a conciliation proceeding in relation to the dispute is completed (within the meaning of section 103 of the Workplace Relations Act), but the dispute has not been fully settled.

             (2)  The Commission must not make an order unless the Commission is satisfied that:

                     (a)  the conduct, or threatened conduct, of an organisation to which the order would relate, or of an officer, member or employee of the organisation:

                              (i)  is preventing, obstructing or restricting the performance of work; or

                             (ii)  is harming the business of an employer; or

                     (b)  the consequences referred to in subparagraph (a)(i) or (ii):

                              (i)  have ceased, but are likely to recur; or

                             (ii)  are imminent;

                            as a result of such conduct or threatened conduct.

132   Factors to be taken into account by Commission

                   In considering whether to make an order under section 130, the Commission must have regard to the wishes of the employees who are affected by the dispute and, where the Commission considers it appropriate, is also to have regard to:

                     (a)  the effect of any order on the operations (including operating costs, work practices, efficiency and productivity) of an employer who is a party to the dispute or who is a member of an organisation that is a party to the dispute; and

                     (b)  any agreement or understanding of which the Commission becomes aware that deals with the right of an organisation of employees to represent under this Act or the Workplace Relations Act the industrial interests of a particular class or group of employees; and

                     (c)  the consequences of not making an order for any employer, employees or organisation involved in the dispute; and

                     (d)  any other order made by the Commission, in relation to another demarcation dispute involving the organisation to which the order under this section would relate, that the Commission considers to be relevant.

Note:          Under section 135 of the Workplace Relations Act, the Commission may order that a vote of the members of an organisation concerned in the dispute be taken by secret ballot for the purpose of finding out their attitudes to the dispute.

133   Order may be subject to limits

                   The order may be subject to conditions or limitations.

134   Organisation must comply with order

             (1)  An organisation to which the order applies must comply with the order.

             (2)  The Federal Court may, on application by the Minister or a person or organisation affected by an order made under section 130, make such orders as it thinks fit to ensure compliance with that order.

135   Certain orders not to stop newly-registered organisations exercising representation rights

                   If:

                     (a)  an order is made under paragraph 130(1)(a) giving an organisation the right, to the exclusion of all other organisations, to represent the industrial interests of a particular class or group of employees (the relevant employees ); and

                     (b)  after the order is made, an association whose membership includes relevant employees is registered under this Act; and

                     (c)  the order does not contain an express statement that the exclusive right given by the order excludes an organisation registered after the order is made;

the order does not prevent the organisation from representing the industrial interests of relevant employees who are members of the organisation.

Note 1:       Although this section enables a newly-registered organisation to represent the interests of relevant employees in spite of an existing order under section 130, the organisation could be excluded from that role if another organisation, an employer or the Minister applied for a variation under subsection 130(2).

Note 2:       This section also applies to orders that were in force under section 118A of the Workplace Relations Act at the time that section was repealed—see the Workplace Relations (Registered Organisations) (Consequential Provisions) Act 2001 .

136   Exercise of Commission’s powers under this Chapter

                   The powers of the Commission under this Chapter are exercisable only by a Full Bench or Presidential Member.



 

Chapter 5 Rules of organisations