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Workplace Relations (Registered Organisations) Bill 2001

Part 2 Entitlement to membership

   

164   Entitlement to become and to remain a member

Employee organisations

             (1)  Subject to any award or order of the Commission, a person who is eligible to become a member of an organisation of employees under the eligibility rules of the organisation that relate to the occupations in which, or the industry or enterprise in relation to which, members are to be employed is, unless of general bad character, entitled, subject to payment of any amount properly payable in relation to membership:

                     (a)  to be admitted as a member of the organisation; and

                     (b)  to remain a member so long as the person complies with the rules of the organisation.

Note 1:       Rules of an organisation must provide for the circumstances in which a person ceases to be a member of an organisation (see subparagraph 139(1)(b)(vii)).

Note 2:       If a member fails to pay his or her membership dues for 24 months, this may result in the person ceasing to be a member, regardless of the rules of the organisation (see section 170).

Note 3:       See also section 166, which deals with a special case of entitlement to membership (person treated as having been a member).

             (2)  Subsection (1) does not entitle a person to remain a member of an organisation if the person ceases to be eligible to become a member and the rules of the organisation do not permit the person to remain a member.

Note:          See also paragraph 139(1)(e), which requires rules of organisations to provide that no membership dues are payable in certain circumstances.

             (3)  A person who is qualified to be employed in a particular occupation, and seeks to be employed in the occupation:

                     (a)  is taken to be an employee for the purposes of this section; and

                     (b)  in spite of anything in the rules of the organisation, is not to be treated as not being eligible for membership of an organisation merely because the person has never been employed in the occupation.

Employer organisations

             (4)  Subject to subsection (5) and to any award or order of the Commission, an employer who is eligible to become a member of an organisation of employers is entitled, subject to payment of any amount properly payable in relation to membership:

                     (a)  to be admitted as a member of the organisation; and

                     (b)  to remain a member so long as the employer complies with the rules of the organisation.

             (5)  Subsection (4) does not entitle an employer:

                     (a)  to become a member of an organisation if the employer is:

                              (i)  a natural person who is of general bad character; or

                             (ii)  a body corporate whose constituent documents make provisions inconsistent with the purposes for which the organisation was formed; or

                     (b)  to remain a member of an organisation if the employer ceases to be eligible to become a member and the rules of the organisation do not permit the employer to remain a member.

This section overrides inconsistent rules

             (6)  Subsections (1) and (4) have effect in spite of anything in the rules of the organisation concerned, except to the extent that they expressly require compliance with those rules.

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

Who may apply to Federal Court

             (1)  Where a question arises as to the entitlement under section 164 of a person:

                     (a)  to be admitted as a member of an organisation (whether for the first time or after having resigned, or been removed, as a member of the organisation); or

                     (b)  to remain a member of an organisation;

application may be made to the Federal Court for a declaration as to the entitlement of the person under this section by either of the following:

                     (c)  the person;

                     (d)  the organisation concerned.

Court may make orders relating to its declaration

             (2)  On the hearing of an application under subsection (1), the Court may, in spite of anything in the rules of the organisation concerned, make such order to give effect to its declaration as it considers appropriate.

             (3)  The orders which the Court may make under subsection (2) include:

                     (a)  an order requiring the organisation concerned to treat a person to whom subsection 164(1) or (4) applies as being a member of the organisation; and

                     (b)  in the case of a question as to the entitlement under this section of a person to be admitted as a member of an organisation, where the person has previously been removed from membership of the organisation—an order that the person be taken to have been a member of the organisation in the period between the removal of the person from membership and the making of the order.

Effect of orders

             (4)  On the making of an order as mentioned in paragraph (3)(a), or as otherwise specified in the order, the person specified in the order becomes, by force of this section, a member of the organisation concerned.

             (5)  Where:

                     (a)  an order is made as mentioned in paragraph (3)(b); and

                     (b)  the person specified in the order pays to the organisation concerned any amount that the person would have been liable to pay to the organisation if the person had been a member of the organisation during the period specified in the order;

the person is taken to have been a member of the organisation during the period specified in the order.

Court to give certain people opportunity to be heard

             (6)  Where an application is made to the Court under this section:

                     (a)  if the application is made by an organisation—the person whose entitlement is in question must be given an opportunity of being heard by the Court; and

                     (b)  if the application is made by the person whose entitlement is in question—the organisation concerned must be given an opportunity of being heard by the Court.

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

             (1)  Where:

                     (a)  a person who is eligible for membership of an organisation (other than a member of the organisation or a person who has been expelled from the organisation) applies to be admitted as a member of the organisation; and

                     (b)  the person has, up to a time within one month before the application, acted in good faith as, and been treated by the organisation as, a member;

the person is entitled to be admitted to membership and treated by the organisation and its members as though the person had been a member during the whole of the time when the person acted as, and was treated by the organisation as, a member and during the whole of the time from the time of the person’s application to the time of the person’s admission.

             (2)  Where a question arises as to the entitlement under this section of a person to be admitted as a member and to be treated as though the person had been a member during the times referred to in subsection (1):

                     (a)  the person; or

                     (b)  the organisation;

may apply to the Federal Court for a declaration as to the entitlement of the person under this section.

             (3)  Subject to subsection (5), the Court may, in spite of anything in the rules of the organisation concerned, make such orders (including mandatory injunctions) to give effect to its determination as it considers appropriate.

             (4)  The orders that the Court may make under subsection (3) include an order requiring the organisation concerned to treat a person to whom subsection (1) applies as being a member of the organisation and as having been a member during the times referred to in subsection (1).

             (5)  Where an application is made to the Court under this section:

                     (a)  if the application is made by an organisation—the person whose entitlement is in question must be given an opportunity to be heard by the Court; and

                     (b)  if the application is made by the person whose entitlement is in question—the organisation concerned must be given an opportunity to be heard by the Court.

167   Request by member for statement of membership

                   An organisation must, at the request of a person who is a member, give to the person, within 28 days after the request is made, a statement showing:

                     (a)  that the person is a member of the organisation; and

                     (b)  where there are categories of membership of the organisation—the category of the person’s membership; and

                     (c)  if the person expressly requests—whether the person is a financial member of the organisation.

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

168   Rectification of register of members

                   The Federal Court may at any time, in a proceeding under this Act or the Workplace Relations Act, order such rectifications of the register of members of an organisation as it considers necessary.