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Workplace Relations (Registered Organisations) Bill 2001

Part 2 Validating provisions for organisations

   

297   Definition

                   In this Part:

invalidity includes nullity and also includes but is not limited to any invalidity or nullity resulting from an omission, defect, error, irregularity or absence of a quorum or caused by the fact that:

                     (a)  a member, or each of 2 or more of the members, of a collective body of an organisation or branch of an organisation, or one of the persons, or each of 2 or more of the persons, purporting to act as the members of such a collective body, or a person, or each of 2 or more persons, holding or purporting to hold an office or position in an organisation or branch:

                              (i)  has not been elected or appointed or duly elected or appointed; or

                             (ii)  has purported to be elected or appointed by an election or appointment that was a nullity; or

                            (iii)  was not entitled to be elected or appointed or to hold office; or

                            (iv)  was not a member of the organisation; or

                             (v)  was elected or appointed or purported to be elected or appointed, in a case where one or more of the persons who took part in the election or appointment or the purported election or appointment was or were not entitled to do so or was or were not members of the organisation; or

                     (b)  persons who were not entitled to do so, or were not members of the organisation, took part in the making or purported making or the alteration or purported alteration of the rules of an organisation or branch, as officers or voters or otherwise.

298   Validation of certain acts done in good faith

Acts relating to elections, appointments, organisation’s rules

             (1)  Subject to this section and section 300, all acts done in good faith by a collective body of an organisation or branch of an organisation, or by persons purporting to act as such a collective body, are valid in spite of any invalidity that may later be discovered in:

                     (a)  the election or appointment of the collective body, any member of the collective body or the persons or any of the persons purporting to act as the collective body; or

                     (b)  the making or alteration of a rule of the organisation or branch.

Acts done by person holding or purporting to hold office

             (2)  Subject to this section and section 300, all acts done in good faith by a person holding or purporting to hold an office or position in an organisation or branch are valid in spite of any invalidity that may later be discovered in:

                     (a)  the election or appointment of the person; or

                     (b)  the making or alteration of a rule of the organisation or branch.

Meaning of purporting to be member or office holder

             (3)  For the purposes of this section:

                     (a)  a person is not to be treated as purporting to act as a member of a collective body of an organisation or as the holder of an office or position in an organisation unless the person has, in good faith, purported to be, and has been treated by officers or members of the organisation as being, such a member or the holder of the office or position; and

                     (b)  a person is not to be treated as purporting to act as a member of a collective body of a branch of an organisation or as the holder of an office or position in the branch unless the person has, in good faith, purported to be, and has been treated by officers or members of the branch as being, such a member or the holder of the office or position.

Meaning of good faith

             (4)  For the purposes of this section:

                     (a)  an act is to be treated as done in good faith until the contrary is proved; and

                     (b)  a person who has purported to be a member of a collective body of an organisation or branch is to be treated as having done so in good faith until the contrary is proved; and

                     (c)  knowledge of facts from which an invalidity arises is not of itself to be treated as knowledge that the invalidity exists; and

                     (d)  an invalidity in:

                              (i)  the election or appointment of a collective body of a branch of an organisation or any member of such a collective body; or

                             (ii)  the election or appointment of the persons or any of the persons purporting to act as a collective body of a branch; or

                            (iii)  the election or appointment of a person holding or purporting to hold an office or position in a branch; or

                            (iv)  the making or alteration of a rule of a branch;

                            is not to be treated as discovered before the earliest time proved to be a time when the existence of the invalidity was known to a majority of the members of the committee of management of the branch or to a majority of the persons purporting to act as the committee of management; and

                     (e)  an invalidity in any other election or appointment or in the making or alteration of a rule to which this section applies is not to be treated as discovered before the earliest time proved to be a time when the existence of the invalidity was known to a majority of the members of the committee of management of the organisation or to a majority of the persons purporting to act as that committee of management.

Actions to which this section applies

             (5)  This section applies:

                     (a)  to an act whenever done (including an act done before the commencement of this section); and

                     (b)  to an act done in relation to an association before it became an organisation.

Certain invalid actions not validated by this section

             (6)  Nothing in this section validates the expulsion or suspension of, or the imposition of a fine or any other penalty on, a member of an organisation that would not have been valid if this section had not been enacted.

Relationship between this section and Part 3 of Chapter 7

             (7)  Nothing in this section affects the operation of Part 3 of Chapter 7 (Inquiries into elections).

299   Validation of certain acts after 4 years

             (1)  Subject to this section and section 300, after the end of 4 years from:

                     (a)  the doing of an act:

                              (i)  by, or by persons purporting to act as, a collective body of an organisation or branch of an organisation and purporting to exercise power conferred by or under the rules of the organisation or branch; or

                             (ii)  by a person holding or purporting to hold an office or position in an organisation or branch and purporting to exercise power conferred by or under the rules of the organisation or branch; or

                     (b)  the election or purported election, or the appointment or purported appointment of a person, to an office or position in an organisation or branch; or

                     (c)  the making or purported making, or the alteration or purported alteration, of a rule of an organisation or branch;

the act, election or purported election, appointment or purported appointment, or the making or purported making or alteration or purported alteration of the rule, is taken to have been done in compliance with the rules of the organisation or branch.

             (2)  The operation of this section does not affect the validity or operation of an order, judgment, decree, declaration, direction, verdict, sentence, decision or similar judicial act of the Federal Court or any other court made before the end of the 4 years referred to in subsection (1).

             (3)  This section extends to an act, election or purported election, appointment or purported appointment, and to the making or purported making or alteration or purported alteration of a rule:

                     (a)  done or occurring before the commencement of this section; or

                     (b)  done or occurring in relation to an association before it became an organisation.

300   Order affecting application of section 298 or 299

             (1)  Where, on an application for an order under this section, the Federal Court is satisfied that the application of section 298 or 299 in relation to an act would do substantial injustice, having regard to the interests of:

                     (a)  the organisation; or

                     (b)  members or creditors of the organisation; or

                     (c)  persons having dealings with the organisation;

the Court must, by order, declare accordingly.

             (2)  Where a declaration is made under subsection (1), section 298 or 299, as the case requires, does not apply, and is taken never to have applied, in relation to the act specified in the declaration.

             (3)  The Court may make an order under subsection (1) on the application of the organisation, a member of the organisation or any other person having a sufficient interest in relation to the organisation.

             (4)  The Court may determine:

                     (a)  what notice, summons or rule to show cause is to be given to other persons of the intention to make an application or an order under this section; and

                     (b)  whether and how the notice, summons or rule should be given or served and whether it should be advertised in any newspaper.

             (5)  In this section:

act includes an election or purported election, appointment or purported appointment, and the making or purported making or alteration or purported alteration of a rule.

301   Federal Court may make orders in relation to consequences of invalidity

             (1)  An organisation, a member of an organisation or any other person having a sufficient interest in relation to an organisation may apply to the Federal Court for a determination of the question whether an invalidity has occurred in:

                     (a)  the management or administration of the organisation or a branch of the organisation; or

                     (b)  an election or appointment in the organisation or a branch of the organisation; or

                     (c)  the making or alteration of the rules of the organisation or a branch of the organisation.

             (2)  On an application under subsection (1), the Court may make any declaration it considers proper.

             (3)  Where, in a proceeding under subsection (1), the Court finds that an invalidity of the kind referred to in that subsection has occurred, the Court may make any order it considers appropriate:

                     (a)  to rectify the invalidity or cause it to be rectified; or

                     (b)  to negative, modify or cause to be modified the consequences in law of the invalidity; or

                     (c)  to validate any act, matter or thing rendered invalid by or because of the invalidity.

             (4)  Where an order is made under subsection (3), the Court may give such ancillary or consequential directions as it considers appropriate.

             (5)  The Court must not make an order under subsection (3) unless it is satisfied that the order would not do substantial injustice to:

                     (a)  the organisation; or

                     (b)  any member or creditor of the organisation; or

                     (c)  any person having dealings with the organisation.

             (6)  The Court may determine:

                     (a)  what notice, summons or rule to show cause is to be given to other persons of the intention to make an application or an order under this section; and

                     (b)  whether and how the notice, summons or rule should be given or served and whether it should be advertised in any newspaper.

             (7)  This section applies:

                     (a)  to an invalidity whenever occurring (including an invalidity occurring before the commencement of this section); and

                     (b)  to an invalidity occurring in relation to an association before it became an organisation.

302   Federal Court may order reconstitution of branch etc.

             (1)  An organisation, a member of an organisation or any other person having a sufficient interest in relation to an organisation may apply to the Federal Court for a declaration that:

                     (a)  a part of the organisation, including:

                              (i)  a branch or part of a branch of the organisation; or

                             (ii)  a collective body of the organisation or a branch of the organisation;

                            has ceased to exist or function effectively and there are no effective means under the rules of the organisation or branch by which it can be reconstituted or enabled to function effectively; or

                     (b)  an office or position in the organisation or a branch of the organisation is vacant and there are no effective means under the rules of the organisation or branch to fill the office or position;

and the Court may make a declaration accordingly.

             (2)  Where the Court makes a declaration under subsection (1), the Court may, by order, approve a scheme for the taking of action by a collective body of the organisation or a branch of the organisation, or by an officer or officers of the organisation or a branch of the organisation:

                     (a)  for the reconstitution of the branch, the part of the branch or the collective body; or

                     (b)  to enable the branch, the part of the branch or the collective body to function effectively; or

                     (c)  for the filling of the office or position.

             (3)  Where an order is made under this section, the Court may give any ancillary or consequential directions it considers appropriate.

             (4)  The Court must not make an order under this section unless it is satisfied that the order would not do substantial injustice to the organisation or any member of the organisation.

             (5)  The Court may determine:

                     (a)  what notice, summons or rule to show cause is to be given to other persons of the intention to make an application or an order under this section; and

                     (b)  whether and how the notice, summons or rule should be given or served and whether it should be advertised in any newspaper.

             (6)  An order or direction of the Court under this section, and any action taken in accordance with the order or direction, has effect in spite of anything in the rules of the organisation or a branch of the organisation.

             (7)  The Court must not under this section approve a scheme involving provision for an election for an office unless the scheme provides for the election to be held by a direct voting system or a collegiate electoral system.