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This is a Bill, not an Act. For current law, see the Acts databases.
2002
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Workplace
Relations (Registration and Accountability of Organisations) Bill
2002
No. ,
2002
(Employment and Workplace
Relations)
A Bill for an Act to provide for
the registration of associations of employers and of employees, to regulate
those associations after registration, and for related
purposes
Contents
A Bill for an Act to provide for the registration of
associations of employers and of employees, to regulate those associations after
registration, and for related purposes
The Parliament of Australia enacts:
This
Act may be cited as the Workplace Relations (Registration and Accountability
of Organisations) Act 2002.
(1) Each provision of this Act specified in column 1 of the table
commences, or is taken to have commenced, on the day or at the time specified in
column 2 of the table.
|
Commencement information |
||
|---|---|---|
|
Column 1 |
Column 2 |
Column 3 |
|
Provision(s) |
Commencement |
Date/Details |
|
1. Sections 1 and 2 and anything in this Act not elsewhere covered by
this table |
The day on which this Act receives the Royal Assent |
|
|
2. The remaining provisions of this Act |
A single day to be fixed by Proclamation, subject to
subsection (3) |
|
Note: This table relates only to the provisions of this Act
as originally passed by the Parliament and assented to. It will not be expanded
to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table is for additional information that is not part
of this Act. This information may be included in any published version of this
Act.
(3) If a provision covered by item 2 of the table does not commence
within the period of 6 months beginning on the day on which this Act receives
the Royal Assent, it commences on the first day after the end of that
period.
(1) This Act binds the Crown in each of its capacities.
(2) However, this Act does not make the Crown liable to be prosecuted for
an offence.
This Part sets out the objects of the Act and contains other provisions
that are relevant to the Act as a whole.
It includes definitions of terms that are used throughout the Act. However,
not all definitions are in this Part. Definitions of terms that are used only in
a particular area of the Act, or only in one section of the Act, are generally
defined in that area or section.
The principal objects of this Act are to:
(a) ensure that employee and employer organisations registered under this
Act are representative of and accountable to their members, and are able to
operate effectively; and
(b) encourage members to participate in the affairs of organisations to
which they belong; and
(c) encourage the efficient management of organisations and high standards
of accountability of organisations to their members; and
(d) provide for the democratic functioning and control of
organisations.
Note: The Workplace Relations Act contains many provisions
that affect the operation of this Act. For example, provisions of the Workplace
Relations Act deal with the powers and functions of the Commission and of
Registrars. Decisions made under this Act may be subject to procedures and rules
(for example about appeals) that are set out in the Workplace Relations
Act.
In this Act, unless the contrary intention appears:
AEC means the Australian Electoral Commission.
Note: Section 11 is also relevant to this
definition.
approved, in relation to the conduct of an election or a
ballot, means approved by the AEC by notice published in the
Gazette.
approved auditor has the meaning given by the
regulations.
auditor, in relation to a reporting unit, means:
(a) the person who is the holder of the position of auditor of the
reporting unit under section 256; or
(b) where a firm is the holder of the position—each person who is,
from time to time, a member of the firm and is an approved auditor.
Australian Accounting Standards means the accounting
standards:
(a) issued by the Australian Accounting Standards Board; or
(b) issued by CPA Australia and by The Institute of Chartered Accountants
in Australia and adopted by the Australian Accounting Standards Board;
as in force, or applicable, from time to time, as modified by regulations
made for the purpose of this definition.
Australian Auditing Standards means the auditing and
assurance standards issued by CPA Australia and The Institute of Chartered
Accountants in Australia as in force, or applicable, from time to
time.
AWA means an Australian workplace agreement under
Part VID of the Workplace Relations Act.
award means an award or order that has been reduced to
writing under subsection 143(1) of the Workplace Relations Act, but does not
include an order made by the Commission in a proceeding under Subdivision B of
Division 3 of Part VIA of that Act.
breach includes non-observance.
certified agreement means an agreement certified under
Division 4 of Part VIB of the Workplace Relations Act.
civil penalty provision has the meaning given by subsection
305(2).
collective body means:
(a) in relation to an organisation—the committee of management or a
conference, council, committee, panel or other body of or within the
organisation; and
(b) in relation to a branch of an organisation—the committee of
management or a conference, council, committee, panel or other body of or within
the branch.
collegiate electoral system, in relation to an election for
an office in an organisation, means a method of election comprising a first
stage, at which persons are elected to a number of offices by a direct voting
system, and a subsequent stage or subsequent stages at which persons are elected
by and from a body of persons consisting only of:
(a) persons elected at the last preceding stage; or
(b) persons elected at the last preceding stage and other persons (being
in number not more than 15% of the number of persons comprising the body)
holding offices in the organisation (including the office to which the election
relates), not including any person holding such an office merely because of
having filled a casual vacancy in the office within the last 12 months, or the
last quarter, of the term of the office.
Commission means the Australian Industrial Relations
Commission established under section 8 of the Workplace Relations
Act.
committee of management:
(a) in relation to an organisation, association or branch of an
organisation or association, means the group or body of persons (however
described) that manages the affairs of the organisation, association or branch;
and
(b) in relation to a reporting unit, means the group or body of persons
(however described) that, under the rules of the reporting unit, is responsible
for undertaking the functions necessary to enable the reporting unit to comply
with Part 3 of Chapter 8.
Commonwealth authority means:
(a) a body corporate established for a public purpose by or under a law of
the Commonwealth or the Australian Capital Territory; or
(b) a body corporate:
(i) incorporated under a law of the Commonwealth or a State or Territory;
and
(ii) in which the Commonwealth has a controlling interest.
conduct includes being (whether directly or indirectly) a
party to, or concerned in, the conduct.
constitutional corporation means:
(a) a foreign corporation within the meaning of paragraph 51(xx) of the
Constitution; or
(b) a body corporate that is, for the purposes of paragraph 51(xx) of the
Constitution, a financial corporation formed within the limits of the
Commonwealth; or
(c) a body corporate that is, for the purposes of paragraph 51(xx) of the
Constitution, a trading corporation formed within the limits of the
Commonwealth; or
(d) a body corporate that is incorporated in a Territory; or
(e) a Commonwealth authority.
declaration envelope means an envelope in the form prescribed
by the regulations on which a voter is required to make a declaration containing
the prescribed information.
demarcation dispute includes:
(a) a dispute arising between 2 or more organisations, or within an
organisation, as to the rights, status or functions of members of the
organisations or organisation in relation to the employment of those members;
or
(b) a dispute arising between employers and employees, or between members
of different organisations, as to the demarcation of functions of employees or
classes of employees; or
(c) a dispute about the representation under this Act or the Workplace
Relations Act of the industrial interests of employees by an organisation of
employees.
Deputy Industrial Registrar means a Deputy Industrial
Registrar appointed under section 75 of the Workplace Relations
Act.
direct voting system, in relation to an election for an
office in an organisation, means a method of election at which:
(a) all financial members; or
(b) all financial members included in the branch, section, class or other
division of the members of the organisation that is appropriate having regard to
the nature of the office;
are, subject to reasonable provisions in relation to enrolment, eligible to
vote.
Electoral Commissioner has the same meaning as in the
Commonwealth Electoral Act 1918.
electoral official means an Australian Electoral
Officer or a member of the staff of the AEC.
eligibility rules, in relation to an organisation or
association, means the rules of the organisation or association that relate to
the conditions of eligibility for membership or the description of the industry
or enterprise (if any) in connection with which the organisation is, or the
association is proposed to be, registered.
employee includes any person whose usual occupation is
that of employee, but does not include a person who is undertaking a vocational
placement within the meaning of section 4 of the Workplace Relations
Act.
employer includes:
(a) a person who is usually an employer; and
(b) an unincorporated club.
employing authority, in relation to a class of employees,
means the person or body, or each of the persons or bodies, prescribed as the
employing authority in relation to the class of employees.
Employment Advocate means the Employment Advocate referred to
in Part IVA of the Workplace Relations Act.
enterprise means:
(a) a business that is carried on by a single employer; or
(b) an operationally distinct part of such a business; or
(c) 2 or more operationally distinct parts of the same business carried on
by the same employer.
enterprise association means an association referred to in
paragraph 18(1)(c).
enterprise organisation means an enterprise association that
is registered as an organisation under this Act.
excluded auditor, in relation to a reporting unit,
means:
(a) an officer or employee of the reporting unit or the organisation of
which the reporting unit is a part; or
(b) a partner, employer or employee of an officer or employee of the
reporting unit or the organisation of which the reporting unit is a part;
or
(c) a liquidator in respect of property of the reporting unit or the
organisation of which the reporting unit is a part; or
(d) a person who owes more than $5,000 to the reporting unit or the
organisation of which the reporting unit is a part.
For the purposes of this definition, employee has the same
meaning as in Part 3 of Chapter 8.
exempt public sector superannuation scheme has the same
meaning as in the Superannuation Industry (Supervision) Act
1993.
Federal Court means the Federal Court of Australia.
financial records includes the following to the extent that
they relate to finances or financial administration:
(a) a register;
(b) any other record of information;
(c) financial reports or financial records, however compiled, recorded or
stored;
(d) a document.
financial year, in relation to an organisation,
means:
(a) the period of 12 months commencing on 1 July in any year;
or
(b) if the rules of the organisation provide for another period of 12
months as the financial year of the organisation—the other period of 12
months.
Note: Section 240 provides for a different financial
year in special circumstances.
Full Bench means a Full Bench of the Commission.
general purpose financial report means the report prepared in
accordance with section 253.
independent contractor is confined to a natural
person.
industrial action has the meaning given by
section 7.
industrial dispute has the meaning given by
section 8.
Industrial Registrar means the Industrial Registrar appointed
under section 67 of the Workplace Relations Act.
Industrial Registry means the Australian Industrial Registry
established under section 62 of the Workplace Relations Act.
irregularity, in relation to an election or ballot,
includes:
(a) a breach of the rules of an organisation or branch of an organisation;
and
(b) an act or omission by means of which:
(i) the full and free recording of votes by all persons entitled to record
votes and by no other persons; or
(ii) a correct ascertainment or declaration of the results of the
voting;
is, or is attempted to be, prevented or hindered; and
(c) a contravention of subsection 190(1).
office has the meaning given by section 9.
officer, in relation to an organisation, or a branch of an
organisation, means a person who holds an office in the organisation or branch
(including such a person when performing duties as a designated officer under
Part 3 of Chapter 8).
old IR agreement means an agreement certified or approved
under any of the following provisions of the Workplace Relations Act:
(a) section 115, as in force immediately before the commencement of
the Schedule to the Industrial Relations Legislation Amendment Act 1992;
or
(b) Division 3A of Part VI, as in force immediately before the
commencement of Schedule 2 to the Industrial Relations Reform Act
1993; or
(c) Part VIB, as in force immediately before the commencement of
item 1 of Schedule 9 to the Workplace Relations and Other
Legislation Amendment Act 1996.
one-tier collegiate electoral system means a
collegiate electoral system comprising only one stage after the first
stage.
operating report means the report prepared under
section 254.
organisation means an organisation registered under this
Act.
Note: Organisations registered under the Workplace Relations
Act immediately before this Act commenced are taken to be registered under this
Act (see the Workplace Relations (Registration and Accountability of
Organisations) (Consequential Provisions) Act 2002).
postal ballot means a ballot for the purposes of
which:
(a) a ballot paper and a declaration envelope are sent by prepaid post to
each person entitled to vote; and
(b) facilities are provided for the return of the completed ballot paper
by post by the voter without expense to the voter.
prescribed includes prescribed by Rules of the Commission
made under section 48 of the Workplace Relations Act.
President means the President of the
Commission.
Presidential Member means the President, a Vice
President, a Senior Deputy President or a Deputy President, of the
Commission.
public sector employment has the same meaning as in the
Workplace Relations Act.
Registrar means the Industrial Registrar or a Deputy
Industrial Registrar.
registry means the Principal Registry or another
registry established under section 64 of the Workplace Relations
Act.
Registry official means:
(a) a Registrar; or
(b) a member of the staff of the Industrial Registry.
reporting guidelines mean the guidelines issued under
section 255.
reporting unit has the meaning given by
section 242.
State industrial authority means:
(a) a board or court of conciliation or arbitration, or tribunal, body or
persons, having authority under a State Act to exercise any power of
conciliation or arbitration in relation to industrial disputes within the limits
of the State; or
(b) a special board constituted under a State Act relating to factories;
or
(c) any other State board, court, tribunal, body or official prescribed
for the purposes of this definition.
superannuation entity has the same meaning as in the
Superannuation Industry (Supervision) Act 1993.
this Act includes the regulations.
Workplace Relations Act means the Workplace Relations Act
1996 and regulations made under that Act.
(1) In this Act, industrial action means:
(a) the performance of work in a manner different from that in which it is
customarily performed, or the adoption of a practice in relation to work, the
result of which is a restriction or limitation on, or a delay in, the
performance of the work, where:
(i) the terms and conditions of the work are prescribed, wholly or partly,
by an award or an order of the Commission, by a certified agreement, old IR
agreement or AWA, by an award, determination or order made by another tribunal
under a law of the Commonwealth or otherwise by or under a law of the
Commonwealth; or
(ii) the work is performed, or the practice is adopted, in connection with
an industrial dispute; or
(b) a ban, limitation or restriction on the performance of work, or on
acceptance of or offering for work, in accordance with the terms and conditions
prescribed by an award or an order of the Commission, by a certified agreement,
or old IR agreement or AWA, by an award, determination or order made by another
tribunal under a law of the Commonwealth or otherwise by or under a law of the
Commonwealth; or
(c) a ban, limitation or restriction on the performance of work, or on
acceptance of or offering for work, that is adopted in connection with an
industrial dispute; or
(d) a failure or refusal by persons to attend for work or a failure or
refusal to perform any work at all by persons who attend for work, if:
(i) the persons are members of an organisation and the failure or refusal
is in accordance with a decision made, or direction given, by an organisation,
the committee of management of the organisation, or an officer or a group of
members of the organisation acting in that capacity; or
(ii) the failure or refusal is in connection with an industrial dispute;
or
(iii) the persons are employed by the Commonwealth or a constitutional
corporation; or
(iv) the persons are employed in a Territory;
but does not include:
(e) action by employees that is authorised or agreed to by the employer of
the employees; or
(f) action by an employer that is authorised or agreed to by or on behalf
of employees of the employer; or
(g) action by an employee if:
(i) the action was based on a reasonable concern by the employee about an
imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of
his or her employer to perform other available work, whether at the same or
another workplace, that was safe and appropriate for the employee to
perform.
(2) For the purposes of this Act:
(a) conduct is capable of constituting industrial action
even if the conduct relates to part only of the duties that persons are required
to perform in the course of their employment; and
(b) industrial action includes a course of conduct
consisting of a series of industrial actions.
(1) In this Act, industrial dispute means:
(a) an industrial dispute (including a threatened, impending or probable
industrial dispute):
(i) extending beyond the limits of any one State; and
(ii) that is about matters pertaining to the relationship between
employers and employees; or
(b) a situation that is likely to give rise to an industrial dispute of
the kind referred to in paragraph (a);
and includes:
(c) a demarcation dispute (whether or not, in the case of a demarcation
dispute involving an organisation or the members of an organisation in that
capacity, the dispute extends beyond the limits of any one State); and
(d) a part of an industrial dispute; and
(e) an industrial dispute so far as it relates to a matter in dispute;
and
(f) a question arising in relation to an industrial dispute.
Additional operation of Act—extension to industrial
issues
(2) Without affecting its operation apart from this section, this Act also
has effect as if a reference to an industrial dispute included a
reference to an industrial issue.
(3) In this section, industrial issue has the meaning that
it is given by section 5 of the Workplace Relations Act for the purposes of
that section.
Additional operation of Act—extension to Victorian
disputes
(4) Subsection (5) has effect only for so long, and in so far, as the
Commonwealth Powers (Industrial Relations) Act 1996 of Victoria refers to
the Parliament of the Commonwealth a matter or matters that result in the
Parliament of the Commonwealth having sufficient legislative power for that
subsection to have effect.
(5) Without affecting its operation apart from this section, this Act also
has effect as if the definition of industrial dispute in
subsection (1) were replaced by the following:
industrial dispute means:
(a) an industrial dispute (including a threatened, impending or probable
industrial dispute):
(i) within the limits of Victoria; and
(ii) that is about matters pertaining to the relationship between
employers and employees; or
(b) a situation that is likely to give rise to an industrial dispute of
the kind referred to in paragraph (a);
and includes a demarcation dispute.
(1) In this Act, office, in relation to an organisation or a
branch of an organisation means:
(a) an office of president, vice president, secretary or assistant
secretary of the organisation or branch; or
(b) the office of a voting member of a collective body of the organisation
or branch, being a collective body that has power in relation to any of the
following functions:
(i) the management of the affairs of the organisation or branch;
(ii) the determination of policy for the organisation or branch;
(iii) the making, alteration or rescission of rules of the organisation or
branch;
(iv) the enforcement of rules of the organisation or branch, or the
performance of functions in relation to the enforcement of such rules;
or
(c) an office the holder of which is, under the rules of the organisation
or branch, entitled to participate directly in any of the functions referred to
in subparagraphs (b)(i) and (iv), other than an office the holder of which
participates only in accordance with directions given by a collective body or
another person for the purpose of implementing:
(i) existing policy of the organisation or branch; or
(ii) decisions concerning the organisation or branch; or
(d) an office the holder of which is, under the rules of the organisation
or branch, entitled to participate directly in any of the functions referred to
in subparagraphs (b)(ii) and (iii); or
(e) the office of a person holding (whether as trustee or otherwise)
property:
(i) of the organisation or branch; or
(ii) in which the organisation or branch has a beneficial
interest.
(2) In this Act, a reference to an office in an association
or organisation includes a reference to an office in a branch of the association
or organisation.
Forging
(1) For the purposes of this Act, a person is taken to have
forged a document if the person:
(a) makes a document which is false, knowing it to be false; or
(b) without authority, alters a genuine document in a material
particular;
with intent that:
(c) the false or altered document may be used, acted on, or accepted, as
genuine, to the prejudice of another person; or
(d) another person may, in the belief that it is genuine, be induced to do
or refrain from doing an act.
(2) For the purposes of this Act, if a person:
(a) makes a document which is false, knowing it to be false; or
(b) without authority, alters a genuine document in a material
particular;
with intent that a computer, a machine or other device should respond to
the false or altered document as if it were genuine:
(c) to the prejudice of another person; or
(d) with the result that another person would be induced to do or refrain
from doing an act;
the first-mentioned person is taken to have forged the
document.
Uttering
(3) For the purposes of this Act, a person is taken to utter
a forged document if the person:
(a) uses or deals with it; or
(b) attempts to use or deal with it; or
(c) attempts to induce another person to use, deal with, act upon, or
accept it.
(1) In this Act, a reference to a ballot or election being conducted, or a
step in a ballot or election being taken, by the AEC is a
reference to the ballot or election being conducted, or the step being taken,
by:
(a) an electoral official; or
(b) a person authorised on behalf of the AEC to do so.
(2) In this Act, a reference to the opinion or other state of mind of the
AEC, in relation to the exercise of a function, is a reference to
the opinion or other state of mind of a person authorised to carry out the
function on behalf of the AEC.
In this Act, unless the contrary intention appears, a reference
to:
(a) a person who is eligible to become a member of an organisation;
or
(b) a person who is eligible for membership of an organisation;
includes a reference to a person who is eligible merely because of an
agreement made under rules of the organisation made under subsection
151(1).
(1) The functions of the Industrial Registry include:
(a) keeping a register of organisations; and
(b) providing advice and assistance to organisations in relation to their
rights and obligations under this Act.
Note: Other functions of the Industrial Registry are set out
in section 63 of the Workplace Relations Act.
(2) Subject to this Act, the register of organisations is to be kept in
whatever form the Industrial Registrar considers appropriate.
(1) The President may establish a panel (the Organisations
Panel) of members of the Commission to exercise the powers of the
Commission under this Act.
(2) The Organisations Panel is to consist of:
(a) a Presidential Member whose duties include organising and allocating
the work of the Panel; and
(b) one or more other members of the Commission assigned to the Panel by
the President.
(3) A member of the Organisations Panel may be a member of one or more
panels referred to in section 37 of the Workplace Relations Act.
Note: Section 37 of the Workplace Relations Act
provides for the setting up of Commission panels for particular
industries.
(4) The fact that a person is a member of the Organisations Panel does not
affect any powers, function or duties that have been, or may be, given to the
person by or under any other provision of this Act or the Workplace Relations
Act.
(5) Even if the President establishes an Organisations Panel, he or she
may direct that the powers of the Commission in relation to a particular matter
arising under this Act are to be exercised by:
(a) a member of the Commission who is not a member of the Panel;
or
(b) members of the Commission, some or all of whom are not members of the
Panel.
Part 2.5 of the Criminal Code does not apply to offences
against this Act.
Note 1: Section 6 of this Act defines this
Act to include the regulations.
Note 2: For the purposes of this Act (and the regulations),
corporate criminal responsibility is dealt with by section 344, rather than
by Part 2.5 of the Criminal Code.
If a maximum penalty is specified:
(a) at the foot of a section of this Act (other than a section that is
divided into subsections); or
(b) at the foot of a subsection of this Act;
then:
(c) a person who contravenes the section or subsection is guilty of an
offence punishable, on conviction, by a penalty not exceeding the specified
penalty; or
(d) the offence referred to in the section or subsection is punishable, on
conviction, by a penalty not exceeding the specified penalty.
This Chapter deals with the types of employer and employee associations
that can be registered and the conditions for their registration (see
Part 2). Part 2 also prohibits certain kinds of discriminatory conduct
by employers and organisations in relation to the formation and registration of
employee associations.
This Chapter also provides that an organisation’s registration can be
cancelled by the Federal Court or by the Commission. It sets out the grounds and
procedures for cancellation, and the consequences of cancellation (see
Part 3).
(1) Any of the following associations may apply for registration as an
organisation:
(a) an association of which some or all of the members are employers who
are capable of being engaged in an industrial dispute and the other members (if
any) are:
(i) officers of the association; or
(ii) persons (other than employees) who carry on business; or
(iii) persons who, when admitted to membership, were employers and who
have not resigned and whose membership has not been terminated;
(b) an association of which some or all of the members are employees who
are capable of being engaged in an industrial dispute and the other members (if
any) are:
(i) officers of the association; or
(ii) persons specified in Schedule 1; or
(iii) independent contractors who, if they were employees performing work
of the kind which they usually perform as independent contractors, would be
employees eligible for membership of the association;
(c) an association (an enterprise association) of which some
or all of the members are employees performing work in the same enterprise and
the other members (if any) are:
(i) officers of the association; or
(ii) persons specified in Schedule 1; or
(iii) independent contractors who, if they were employees performing work
of the kind which they usually perform as independent contractors, would be
employees eligible for membership of the association.
(2) Subsection (1) does not apply in relation to an association that
has members referred to in subparagraph (1)(a)(ii) or (iii), (b)(ii) or
(iii) or (c)(ii) or (iii) unless the association is effectively representative
of the members who are employers or employees, as the case may be.
(1) The Commission must grant an application for registration made by an
association (other than an enterprise association) that, under section 18,
may apply for registration as an organisation if, and only if:
(a) the association:
(i) is a genuine association of a kind referred to in section 18;
and
(ii) is an association for furthering or protecting the interests of its
members; and
(b) in the case of an association of employees—the association is
free from control by, or improper influence from, an employer or by an
association or organisation of employers; and
(c) in the case of an association of employers—the members who are
employers have, in the aggregate, throughout the 6 months before the
application, employed on an average taken per month at least 50 employees;
and
(d) in the case of an association of employees—the association has
at least 50 members who are employees; and
(e) the Commission is satisfied that the association would conduct its
affairs in a way that meets the obligations of an organisation under this Act
and the Workplace Relations Act; and
(f) the rules of the association make provision as required by this Act to
be made by the rules of organisations; and
(g) the association does not have the same name as that of an organisation
or a name that is so similar to the name of an organisation as to be likely to
cause confusion; and
(h) a majority of the members present at a general meeting of the
association, or an absolute majority of the committee of management of the
association, have passed, under the rules of the association, a resolution in
favour of registration of the association as an organisation; and
(i) the registration of the association would further the objects set out
in section 5 of this Act and section 3 of the Workplace Relations Act;
and
(j) subject to subsection (2), there is no organisation to which
members of the association might belong or, if there is such an organisation, it
is not an organisation:
(i) to which the members of the association could more conveniently
belong; and
(ii) that would more effectively represent those members.
(2) If:
(a) there is an organisation to which the members of the association might
belong; and
(b) the members of the association could more conveniently belong to the
organisation; and
(c) the organisation would more effectively represent those members than
the association would;
the requirements of paragraph (1)(j) are taken to have been met if the
Commission accepts an undertaking from the association that the Commission
considers appropriate to avoid demarcation disputes that might otherwise arise
from an overlap between the eligibility rules of the organisation and the
eligibility rules of the association.
(3) Without limiting the matters that the Commission may take into account
in considering, under subparagraph (1)(j)(ii), the effectiveness of the
representation of an organisation or association, the Commission must take into
account whether the representation would be consistent with the objects set out
in section 5 of this Act and section 3 of the Workplace Relations
Act.
(4) In applying paragraph (1)(e), the Commission must have regard to
whether any recent conduct by the association or its members would have provided
grounds for an application under section 28 had the association been
registered when the conduct occurred.
(1) The Commission must grant an application for registration made by an
enterprise association that, under section 18, may apply for registration
as an organisation if, and only if:
(a) the association:
(i) is a genuine association of a kind referred to in section 18;
and
(ii) is an association for furthering or protecting the interests of its
members; and
(b) the association is free from control by, or improper influence
from:
(i) any employer, whether at the enterprise in question or otherwise;
or
(ii) any person or body with an interest in that enterprise; or
(iii) any organisation, or any other association of employers or
employees; and
(c) the association has at least 50 members who are employees;
and
(d) the Commission is satisfied that the association would conduct its
affairs in a way that meets the obligations of an organisation under this Act
and the Workplace Relations Act; and
(e) the rules of the association make provision as required by this Act to
be made by the rules of organisations; and
(f) the association does not have the same name as that of an organisation
or a name that is so similar to the name of an organisation as to be likely to
cause confusion; and
(g) the Commission is satisfied that a majority of the persons eligible to
be members of the association support its registration as an organisation;
and
(h) a majority of the members present at a general meeting of the
association, or an absolute majority of the committee of management of the
association, have passed, under the rules of the association, a resolution in
favour of registration of the association as an organisation; and
(i) the registration of the association would further the objects set out
in section 5 of this Act and section 3 of the Workplace Relations
Act.
(2) In applying paragraph (1)(d), the Commission must have regard to
whether any recent conduct by the association or its members would have provided
grounds for an application under section 28 had the association been
registered when the conduct occurred.
(1) An employer must not, for a prohibited reason, or for reasons that
include a prohibited reason, do or threaten to do any of the
following:
(a) dismiss an employee;
(b) injure an employee in his or her employment;
(c) alter the position of an employee to the employee’s
prejudice;
(d) discriminate against an employee.
(2) A person must not, for a prohibited reason, or for reasons that
include a prohibited reason, do or threaten to do any of the
following:
(a) terminate a contract for services that he or she has entered into with
an independent contractor;
(b) injure an independent contractor in relation to the terms and
conditions of the contract for services;
(c) alter the position of an independent contractor to the independent
contractor’s prejudice;
(d) discriminate against an independent contractor.
(3) Conduct referred to in subsection (1) or (2) is for a
prohibited reason if it is carried out because the employee or
independent contractor has done, or has omitted to do, any act:
(a) under this Act that relates to the formation or registration of an
association referred to in paragraph 18(1)(b) or (c); or
(b) in connection with, or in preparation for, such an act or
omission.
(4) The following are examples of acts or omissions to which
subsection (3) applies:
(a) making an application for registration of an employee association
under paragraph 18(1)(b) or (c);
(b) supporting the registration of an employee association (for example,
by supporting, or supporting the making of, an application for its
registration);
(c) participating, or encouraging a person to participate, in proceedings
before the Commission in relation to such an application;
(d) not participating, or encouraging a person not to participate, in such
proceedings;
(e) becoming a member, or encouraging a person to become a member, of an
employee association.
(1) An organisation, or an officer or member of an organisation, must not
take, or threaten to take, industrial action whose aim, or one of whose aims, is
to coerce a person to breach section 21.
(2) An organisation, or an officer or member of an organisation, must not,
for a prohibited reason, or for reasons that include a prohibited reason, take
or threaten to take, any action whose aim, or one of whose aims, is to prejudice
a person in the person’s employment, or an independent contractor in the
contractor’s engagement.
(3) Conduct referred to in subsection (2) is for a prohibited
reason if it is carried out because the person has done, or has
omitted to do, any act:
(a) under this Act that relates to the formation or registration of an
association referred to in paragraph 18(1)(b) or (c); or
(b) in connection with, or in preparation for, such an act or
omission.
(4) The examples set out in subsection 21(4) are examples of acts or
omissions to which subsection (3) of this section applies.
(5) An organisation, or an officer or member of an organisation, must not
impose, or threaten to impose, a penalty, forfeiture or disability of any kind
on a member of the organisation because the member concerned does or proposes to
do, for a prohibited reason, an act or omission referred to in subsection
21(3).
(1) 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 section 21 or 22:
(a) an order imposing on a person whose conduct contravenes that section 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.
(2) An application for an order under subsection (1) 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.
(1) For the purposes of this Division:
(a) action done by one of the following bodies or persons is taken to have
been done by an organisation:
(i) the committee of management of the organisation;
(ii) an officer or agent of the organisation acting in that
capacity;
(iii) a member or group of members of the organisation acting under the
rules of the organisation;
(iv) a member of the organisation, who performs the function of dealing
with an employer on behalf of other members of the organisation, acting in that
capacity; and
(b) action done by an agent of an employer acting in that capacity is
taken to have been done by the employer.
(2) Subparagraphs (1)(a)(iii) and (iv) and paragraph (1)(b) do
not apply if:
(a) in relation to subparagraphs (1)(a)(iii) and (iv):
(i) a committee of management of the organisation; or
(ii) a person authorised by the committee; or
(iii) an officer of the organisation;
has taken reasonable steps to prevent the action; or
(b) in relation to paragraph (1)(b), the employer has taken
reasonable steps to prevent the action.
(3) In this section:
officer, in relation to an organisation, includes:
(a) a delegate or other representative of the organisation; and
(b) an employee of the organisation.
(1) The Commission may, on the application of an association applying to
be registered as an organisation, grant leave to the association, on such terms
and conditions as the Commission considers appropriate, to change its name or to
alter its rules:
(a) to enable it to comply with this Act; or
(b) to remove a ground of objection taken by an objector under the
regulations or by the Commission; or
(c) to correct a formal error in its rules (for example, to remove an
ambiguity, to correct spelling or grammar, or to correct an incorrect reference
to an organisation or person).
Note: Paragraph (a)—in order for an organisation
to comply with this Act, its rules must not be contrary to the Workplace
Relations Act (see paragraph 142(a) of this Act).
(2) An association granted leave under subsection (1) may change its
name, or alter its rules, even though the application for registration is
pending.
(3) Rules of an association as altered in accordance with leave granted
under subsection (1) are binding on the members of the
association:
(a) in spite of anything in the other rules of the association;
and
(b) subject to any further alterations lawfully made.
(1) When the Commission grants an application by an association for
registration as an organisation, the Industrial Registrar must immediately
enter, in the register kept under paragraph 13(1)(a), such particulars in
relation to the association as are prescribed and the date of the
entry.
(2) An association is to be taken to be registered under this Act when the
Industrial Registrar enters the prescribed particulars in the register under
subsection (1).
(3) On registration, an association becomes an organisation.
(4) The Industrial Registrar must issue to each organisation registered
under this Act a certificate of registration in the prescribed form.
Note: Certificates of registration issued under the
Workplace Relations Act continue in force (see the Workplace Relations
(Registration and Accountability of Organisations) (Consequential Provisions)
Act 2002).
(5) The certificate is, until proof of cancellation, conclusive evidence
of the registration of the organisation specified in the certificate.
(6) The Industrial Registrar may, as prescribed, issue to an organisation
a copy of, or a certificate replacing, the certificate of registration issued
under subsection (4) or that certificate as amended under
section 160.
An organisation:
(a) is a body corporate; and
(b) has perpetual succession; and
(c) has power to purchase, take on lease, hold, sell, lease, mortgage,
exchange and otherwise own, possess and deal with, any real or personal
property; and
(d) must have a common seal; and
(e) may sue or be sued in its registered name.
(1) An organisation or person interested, or the Minister, may apply to
the Federal Court for an order cancelling the registration of an organisation on
the ground that:
(a) the conduct of:
(i) the organisation (in relation to its continued breach of an award, an
order of the Commission, a certified agreement or an old IR agreement or its
continued failure to ensure that its members comply with and observe an award,
an order of the Commission, a certified agreement or an old IR agreement or in
any other respect); or
(ii) a substantial number of the members of the organisation (in relation
to their continued breach of an award, an order of the Commission, a certified
agreement or an old IR agreement or in any other respect);
has prevented or hindered the achievement of an object of this Act or the
Workplace Relations Act; or
(b) the organisation, or a substantial number of the members of the
organisation or of a section or class of members of the organisation, has
engaged in industrial action that has prevented, hindered or interfered
with:
(i) trade or commerce between Australia and a place outside Australia;
or
(ii) trade or commerce between the States; or
(iii) trade or commerce within a Territory, between a State and a
Territory or between 2 Territories; or
(iv) the provision of any public service by the Commonwealth or a State or
Territory or an authority of the Commonwealth or a State or Territory;
or
(c) the organisation, or a substantial number of the members of the
organisation or of a section or class of members of the organisation, has or
have been, or is or are, engaged in industrial action that has had, is having or
is likely to have a substantial adverse effect on the safety, health or welfare
of the community or a part of the community; or
(d) the organisation, or a substantial number of the members of the
organisation or of a section or class of members of the organisation, has or
have failed to comply with an injunction granted under subsection 127(6) or (7)
of the Workplace Relations Act; or
(e) the organisation, or a substantial number of the members of the
organisation or of a section or class of members of the organisation, has or
have failed to comply with an injunction granted under section 187AD of the
Workplace Relations Act.
(2) An organisation in relation to which an application is made under
subsection (1) must be given an opportunity of being heard by the
Court.
(3) If the Court:
(a) finds that a ground for cancellation set out in the application has
been established; and
(b) does not consider that it would be unjust to do so having regard to
the degree of gravity of the matters constituting the ground and the action (if
any) that has been taken by or against the organisation in relation to the
matters;
the Court must, subject to subsection (4) and section 29, cancel
the registration of the organisation.
(4) If:
(a) the Court finds that a ground for cancellation set out in the
application has been established; and
(b) that finding is made, wholly or mainly, because of the conduct of a
particular section or class of members of the organisation;
the Court may, if it considers it just to do so, instead of cancelling the
registration of the organisation under subsection (3), by order:
(c) determine alterations of the eligibility rules of the organisation so
as to exclude from eligibility for membership of the organisation persons
belonging to the section or class; or
(d) where persons belonging to the section or class are eligible for
membership under an agreement of the kind referred to in
section 151—declare that the persons are excluded from eligibility
for membership in spite of anything in the agreement.
(5) If the Court cancels the registration of an organisation, the Court
may direct that an application by the former organisation to be registered as an
organisation is not to be dealt with under this Act before the end of a
specified period.
(6) An alteration of rules determined by order under subsection (4)
takes effect on the date of the order or on such other day as is specified in
the order.
(7) A finding of fact by the Court in proceedings under section 127
or Part VIIIA of the Workplace Relations Act is admissible as prima facie
evidence of that fact in an application made on a ground specified in
paragraph (1)(d) or (e), as the case requires.
(1) If the Federal Court finds that a ground of an application under
subsection 28(1) has been established, the Court may, if it considers it just to
do so, instead of cancelling the registration of the organisation concerned
under subsection 28(3) or making an order under subsection 28(4), exercise one
or more of the powers set out in subsection (2) of this section.
(2) The powers that may be exercised by the Court, by order, under
subsection (1) are as follows:
(a) the power to suspend, to the extent specified in the order, any of the
rights, privileges or capacities of the organisation or of all or any of its
members, as such members, under this Act or any other Act , under awards or
orders made under this Act or any other Act or under certified agreements or old
IR agreements;
(b) the power to give directions as to the exercise of any rights,
privileges or capacities that have been suspended;
(c) the power to make provision restricting the use of the funds or
property of the organisation or a branch of the organisation, and for the
control of the funds or property for the purpose of ensuring observance of the
restrictions.
(3) If the Court exercises a power set out in subsection (2), it must
defer the determination of the question whether to cancel the registration of
the organisation concerned until:
(a) the orders made in the exercise of the power cease to be in force;
or
(b) on application by a party to the proceeding, the Court considers that
it is just to determine the question, having regard to any evidence given
relating to the observance or non-observance of any order and to any other
relevant circumstance;
whichever is earlier.
(4) An order made in the exercise of a power set out in
subsection (2) has effect in spite of anything in the rules of the
organisation concerned or a branch of the organisation.
(5) An order made in the exercise of a power set out in
subsection (2):
(a) may be revoked by the Court, by order, on application by a party to
the proceeding concerned; and
(b) unless sooner revoked, ceases to be in force:
(i) 6 months after it came into force; or
(ii) such longer period after it came into force as is ordered by the
Court on application by a party to the proceeding made while the order remains
in force.
(1) The Commission may cancel the registration of an
organisation:
(a) on application by the organisation made under the regulations;
or
(b) on application by an organisation or person interested or by the
Minister, if the Commission has satisfied itself, as prescribed, that the
organisation:
(i) was registered by mistake; or
(ii) is no longer effectively representative of the members who are
employers or employees, as the case requires; or
(iii) is not free from control by, or improper influence from, a person or
body referred to in paragraph 19(1)(b) or 20(1)(b), as the case requires;
or
(iv) subject to subsection (6), if the organisation is an enterprise
association—the enterprise to which it relates has ceased to exist;
or
(c) on the Commission’s own motion, if:
(i) the Commission has satisfied itself, as prescribed, that the
organisation is defunct; or
(ii) the organisation is an organisation of employees and has fewer than
50 members who are employees.
(2) Before the Commission cancels the registration of an organisation
under:
(a) paragraph (1)(b) on application by a person interested or by the
Minister; or
(b) paragraph (1)(c);
the Commission must give the organisation an opportunity to be
heard.
(3) The Commission may also cancel the registration of an organisation
if:
(a) the Commission is satisfied that the organisation has breached an
undertaking referred to in subsection 19(2); and
(b) the Commission does not consider it appropriate to amend the
eligibility rules of the organisation under section 157.
(4) A cancellation under subsection (3) may be made:
(a) on application by an organisation or person interested; or
(b) on application by the Minister; or
(c) on the Commission’s own motion.
(5) For the purposes of subparagraph (1)(b)(iv), the enterprise to
which an organisation relates has ceased to exist if:
(a) in the case of an organisation that relates only to an operationally
distinct part or parts of the business that constitutes the
enterprise—that part or those parts have ceased to exist, or the whole of
the business has ceased to exist; or
(b) in the case of an organisation that relates to the whole of the
business that constitutes the enterprise—the whole of the business has
ceased to exist.
(6) Subparagraph (1)(b)(iv) does not apply if:
(a) some or all of the business of the enterprise in question is now
conducted by another enterprise; and
(b) all the alterations that are necessary to enable the organisation to
operate as an enterprise association in relation to the other enterprise have
been made; and
(c) the Commission is satisfied that the organisation still meets the
requirements of subsection 20(1).
The Commission must give the organisation a reasonable opportunity to alter
its rules as provided in paragraph (b) before the Commission considers
cancelling the registration of the organisation on the ground referred to in
subparagraph (1)(b)(iv).
If the registration of an organisation under this Act is cancelled, the
Industrial Registrar must enter the cancellation, and the date of cancellation,
in the register kept under paragraph 13(1)(a).
The cancellation of the registration of an organisation under this Act
has the following consequences:
(a) the organisation ceases to be an organisation and a body corporate
under this Act, but does not because of the cancellation cease to be an
association;
(b) the cancellation does not relieve the association or any of its
members from any penalty or liability incurred by the organisation or its
members before the cancellation;
(c) from the cancellation, the association and its members are not
entitled to the benefits of any award, order of the Commission, certified
agreement or old IR agreement that bound the organisation or its
members;
(d) the Commission may, on application by an organisation or person
interested, make such order as the Commission considers appropriate about the
other effects (if any) of such an award, order or agreement on the association
and its members;
(e) 21 days after the cancellation, such an award, order or agreement
ceases, subject to any order made under paragraph (d), in all other
respects to have effect in relation to the association and its
members;
(f) the Federal Court may, on application by a person interested, make
such order as it considers appropriate in relation to the satisfaction of the
debts and obligations of the organisation out of the property of the
organisation;
(g) the property of the organisation is, subject to any order made under
paragraph (f), the property of the association and must be held and applied
for the purposes of the association under the rules of the organisation so far
as they can still be carried out or observed.
The powers of the Commission under this Chapter are exercisable only by a
Presidential Member.
The procedure for the amalgamation of 2 or more organisations is set out in
Part 2 of this Chapter.
The 2 main elements of the amalgamation procedure are an application to the
Commission seeking approval for a ballot to be held on the question of
amalgamation, and the holding of a ballot conducted by the Australian Electoral
Commission.
Part 2 also sets out the consequences of an amalgamation (for example,
in relation to assets and liabilities of the organisations forming the new
amalgamated organisation). It also enables the validation of certain acts done
for the purposes of an amalgamation.
The procedure that enables part of an amalgamated organisation to withdraw
from it is set out in Part 3 of this Chapter.
The main elements of the procedure to withdraw are an application to the
Federal Court for approval to hold a ballot on the question, and the holding of
the ballot.
Part 3 also sets out the consequences of a withdrawal from
amalgamation (for example, in relation to assets and liabilities of the
amalgamated organisation and the constituent part). It also enables the
validation of certain acts done for the purposes of a withdrawal from
amalgamation.
In this Part:
alternative provision means a provision of the kind mentioned
in subsection 41(1).
amalgamated organisation, in relation to a completed
amalgamation, means the organisation of which members of the de-registered
organisations have become members under paragraph 73(3)(d).
amalgamation day, in relation to a completed amalgamation,
means the day fixed under subsection 73(2) in relation to the
amalgamation.
asset means property of any kind, and includes:
(a) any legal or equitable estate or interest (whether present or future,
vested or contingent, tangible or intangible) in real or personal property of
any description; and
(b) any chose in action; and
(c) any right, interest or claim of any kind in, or in relation to,
property (whether arising under an instrument or otherwise, and whether
liquidated or unliquidated, certain or contingent, accrued or
accruing).
authorised person, in relation to a completed amalgamation,
means the secretary of the amalgamated organisation or a person authorised, in
writing, by the committee of management of the amalgamated
organisation.
charge means a charge created in any way, and includes a
mortgage and an agreement to give or execute a charge or mortgage (whether on
demand or otherwise).
closing day, in relation to a ballot for a proposed
amalgamation, means the day, from time to time, fixed under section 58 as
the closing day of the ballot.
commencing day, in relation to a ballot for a proposed
amalgamation, means the day, from time to time, fixed under section 58 as
the commencing day of the ballot.
completed amalgamation means a proposed amalgamation that has
taken effect.
debenture has the same meaning as in section 9 of the
Corporations Act 2001.
defect includes a nullity, omission, error or
irregularity.
de-registered organisation, in relation to a completed
amalgamation, means an organisation that has been de-registered under this
Part.
de-registration, in relation to an organisation, means the
cancellation of its registration.
holder, in relation to a charge, includes a person in whose
favour a charge is to be given or executed (whether on demand or otherwise)
under an agreement.
instrument means an instrument of any kind, and
includes:
(a) any contract, deed, undertaking or agreement; and
(b) any mandate, instruction, notice, authority or order; and
(c) any lease, licence, transfer, conveyance or other assurance;
and
(d) any guarantee, bond, power of attorney, bill of lading, negotiable
instrument or order for the payment of money; and
(e) any mortgage, charge, lien or security;
whether express or implied and whether made or given orally or in
writing.
instrument to which this Part applies, in relation to a
completed amalgamation, means an instrument:
(a) to which a de-registered organisation is a party; or
(b) that was given to, by, or in favour of, a de-registered organisation;
or
(c) in which a reference is made to a de-registered organisation;
or
(d) under which any money is or may become payable, or any other property
is to be, or may become liable to be, transferred, conveyed or assigned, to or
by a de-registered organisation.
interest:
(a) in relation to a company—includes an interest in a managed
investment scheme, within the meaning of the Corporations Act 2001, made
available by the company; and
(b) in relation to land—means:
(i) a legal or equitable estate or interest in the land; or
(ii) a right, power or privilege over, or in relation to, the
land.
invalidity includes a defect.
irregularity includes a breach of the rules of an
organisation, but in Division 7 does not include an irregularity in
relation to a ballot.
liability means a liability of any kind, and includes an
obligation of any kind (whether arising under an instrument or otherwise, and
whether liquidated or unliquidated, certain or contingent, accrued or
accruing).
proceeding to which this Part applies, in relation to a
completed amalgamation, means a proceeding to which a de-registered organisation
was a party immediately before the amalgamation day.
proposed alternative amalgamation, in relation to a proposed
amalgamation, means an amalgamation proposed to be made under an alternative
provision.
proposed amalgamated organisation, in relation to a proposed
amalgamation, means the organisation or proposed organisation of which members
of the proposed de-registering organisations are proposed to become members
under this Part.
proposed amalgamation means the proposed carrying out of
arrangements in relation to 2 or more organisations under which:
(a) an organisation is, or 2 or more organisations are, to be
de-registered under this Part; and
(b) members of the organisation or organisations to be de-registered are
to become members of another organisation (whether existing or
proposed).
proposed de-registering organisation, in relation to a
proposed amalgamation, means an organisation that is to be de-registered under
this Part.
proposed principal amalgamation, in relation to a proposed
amalgamation, means:
(a) if the scheme for the amalgamation contains an alternative
provision—the amalgamation proposed to be made under the scheme otherwise
than under an alternative provision; or
(b) in any other case—the proposed amalgamation.
(1) For the purpose of implementing the scheme for a proposed
amalgamation, the procedure provided by this Part is to be followed.
(2) Where it appears to the Commission that the performance of an act,
including:
(a) the de-registration of an organisation; and
(b) the registration of an organisation; and
(c) the giving of consent to:
(i) a change in the name of an organisation; or
(ii) an alteration of the eligibility rules of an organisation;
is sought for the purposes of a proposed amalgamation, the Commission may
perform the act only in accordance with this Part.
(3) If any difficulty arises, or appears likely to arise, in the
application of this Act for the purpose of implementing the scheme for a
proposed amalgamation, the Commission may give directions and make orders to
resolve the difficulty.
(4) Directions and orders under subsection (3):
(a) have effect subject to any order of the Federal Court; and
(b) have effect despite anything in:
(i) the regulations or the Rules of the Commission; or
(ii) the rules of an organisation or any association proposed to be
registered as an organisation.
The powers of the Commission under this Part are exercisable only by a
Presidential Member.
Application for recognition as federation
(1) The existing organisations concerned in a proposed amalgamation may
jointly lodge in the Industrial Registry an application for recognition as a
federation.
(2) The application must:
(a) be lodged before an application is lodged under section 44 in
relation to the amalgamation; and
(b) include such particulars as are prescribed.
Grant of application
(3) If the Commission is satisfied that the organisations intend to lodge
an application under section 44 in relation to the amalgamation within the
prescribed period, the Commission must grant the application for recognition as
a federation.
Registration of federation
(4) If the application is granted, the Industrial Registrar must enter in
the register kept under paragraph 13(1)(a) such details in relation to the
federation as are prescribed.
Representation rights of federation
(5) On registration, the federation may, subject to subsection (6)
and the regulations, represent its constituent members for all of the purposes
of this Act and the Workplace Relations Act.
(6) Subsection (5) does not authorise the federation to become a
party to an award or to become bound by a certified agreement or old IR
agreement.
Federation may vary its composition
(7) After the federation is registered, it may vary its composition
by:
(a) including, with the approval of the Commission, another organisation
within the federation if the other organisation intends to become concerned in
the amalgamation; or
(b) releasing, with the approval of the Commission, an organisation from
the federation.
When federation ceases to exist
(8) The federation ceases to exist:
(a) on the day on which the amalgamation takes effect; or
(b) if an application under section 44 is not lodged in relation to
the amalgamation within the prescribed period—on the day after the end of
the period; or
(c) if it appears to a Full Bench, on an application by a prescribed
person, that the industrial conduct of the federation, or an organisation
belonging to the federation, is preventing or hindering the attainment of an
object of this Act or the Workplace Relations Act—on the day the Full
Bench so determines.
Federation does not limit representation rights of
organisations
(9) Nothing in this section limits the right of an organisation belonging
to a federation to represent itself or its members.
(1) An existing organisation concerned in a proposed amalgamation may, at
any time before the closing day of the ballot for the amalgamation, use its
financial and other resources in support of the proposed principal amalgamation
and any proposed alternative amalgamation if:
(a) the committee of management of the organisation has resolved that the
organisation should so use its resources; and
(b) the committee of management has given reasonable notice of its
resolution to the members of the organisation.
(2) Subsection (1) does not limit by implication any power that the
existing organisation has, apart from that subsection, to use its financial and
other resources in support of, or otherwise in relation to, the
amalgamation.
(1) There is to be a scheme for every proposed amalgamation.
(2) The scheme must contain the following matters:
(a) a general statement of the nature of the amalgamation, identifying the
existing organisations concerned and indicating:
(i) if one of the existing organisations is the proposed amalgamated
organisation—that fact; and
(ii) if an association proposed to be registered as an organisation is the
proposed amalgamated organisation—that fact and the name of the
association; and
(iii) the proposed de-registering organisations;
(b) if it is proposed to change the name of an existing
organisation—particulars of the proposed change;
(c) if it is proposed to alter the eligibility rules of an existing
organisation—particulars of the proposed alterations;
(d) if it is proposed to alter any other rules of an existing
organisation—particulars of the proposed alterations;
(e) if an association is proposed to be registered as an
organisation—the eligibility and other rules of the association;
(f) such other matters as are prescribed.
(3) Subsection (2) does not limit by implication the matters that the
scheme may contain.
(1) Where 3 or more existing organisations are concerned in a proposed
amalgamation, the scheme for the amalgamation may contain a provision to the
effect that, if:
(a) the members of one or more of the organisations do not approve the
amalgamation; and
(b) the members of 2 or more of the organisations (in this subsection
called the approving organisations) approve, in the alternative,
the amalgamation so far as it involves:
(i) the other of the approving organisations; or
(ii) 2 or more of the other approving organisations; and
(c) where one of the existing organisations is the proposed amalgamated
organisation—that organisation is one of the approving
organisations;
there is to be an amalgamation involving the approving
organisations.
(2) If the scheme for a proposed amalgamation contains an alternative
provision, the scheme must also contain particulars of:
(a) the differences between the proposed principal amalgamation and each
proposed alternative amalgamation; and
(b) the differences between the rules of any association proposed to be
registered as an organisation, and any proposed alterations of the rules of the
existing organisations, under the proposed principal amalgamation and each
proposed alternative amalgamation.
(1) The scheme for a proposed amalgamation, and each alteration of the
scheme, must be approved, by resolution, by the committee of management of each
existing organisation concerned in the amalgamation.
(2) Despite anything in the rules of an existing organisation, approval,
by resolution, by the committee of management of the scheme, or an alteration of
the scheme, is taken to be sufficient compliance with the rules, and any
proposed alteration of the rules contained in the scheme, or the scheme as
altered, is taken to have been properly made under the rules.
Existing organisations may apply for declaration
(1) The existing organisations concerned in a proposed amalgamation may
jointly lodge in the Industrial Registry an application for a declaration under
this section in relation to the amalgamation.
(2) The application must be lodged:
(a) before an application has been lodged under section 44 in
relation to the amalgamation; or
(b) with the application that is lodged under section 44 in relation
to the amalgamation.
(3) If the application is lodged before an application has been lodged
under section 44 in relation to the amalgamation, the Commission:
(a) must immediately fix a time and place for hearing submissions in
relation to the making of the declaration; and
(b) must ensure that all organisations are promptly notified of the time
and place of the hearing; and
(c) may inform any other person who is likely to be interested of the time
and place of the hearing.
Making of declaration
(4) If, at the conclusion of the hearing arranged under
subsection (3) or section 53 in relation to the proposed amalgamation,
the Commission is satisfied that there is a community of interest between the
existing organisations in relation to their industrial interests, the Commission
must declare that it is so satisfied.
Pre-conditions to making of declaration
(5) The Commission must be satisfied, for the purposes of
subsection (4), that there is a community of interest between organisations
of employees in relation to their industrial interests if the Commission is
satisfied that a substantial number of members of one of the organisations
are:
(a) eligible to become members of the other organisation or each of the
other organisations; or
(b) engaged in the same work or in aspects of the same or similar work as
members of the other organisation or each of the other organisations;
or
(c) bound by the same awards as members of the other organisation or each
of the other organisations; or
(d) employed in the same or similar work by employers engaged in the same
industry as members of the other organisation or each of the other
organisations; or
(e) engaged in work, or in industries, in relation to which there is a
community of interest with members of the other organisation or each of the
other organisations.
(6) The Commission must be satisfied, for the purposes of
subsection (4), that there is a community of interest between organisations
of employers in relation to their industrial interests if the Commission is
satisfied that a substantial number of members of one of the organisations
are:
(a) eligible to become members of the other organisation or each of the
other organisations; or
(b) engaged in the same industry or in aspects of the same industry or
similar industries as members of the other organisation or each of the other
organisations; or
(c) bound by the same awards as members of the other organisation or each
of the other organisations; or
(d) engaged in industries in relation to which there is a community of
interest with members of the other organisation or each of the other
organisations.
(7) Subsections (5) and (6) do not limit by implication the
circumstances in which the Commission may be satisfied, for the purposes of
subsection (4), that there is a community of interest between organisations
in relation to their industrial interests.
Circumstances in which declaration ceases to be in force
(8) If:
(a) an application for a declaration under this section in relation to a
proposed amalgamation is lodged before an application has been lodged under
section 44 in relation to the amalgamation; and
(b) a declaration is made under this section in relation to the
amalgamation; and
(c) an application is not lodged under section 44 in relation to the
amalgamation within 6 months after the declaration is made;
the declaration ceases to be in force.
(9) The Commission may revoke a declaration under this section if the
Commission is satisfied that there is no longer a community of interest between
the organisations concerned in relation to their industrial interests.
(10) However, before the Commission revokes the declaration, it
must:
(a) give reasonable notice of its intention to revoke to each of the
organisations that applied for the declaration; and
(b) give each of those organisations an opportunity to be heard.
(1) The existing organisations concerned in a proposed amalgamation, and
any association proposed to be registered as an organisation under the
amalgamation, must jointly lodge in the Industrial Registry an application for
approval for the submission of the amalgamation to ballot.
(2) The application must be accompanied by:
(a) a copy of the scheme for the amalgamation; and
(b) a written outline of the scheme.
(3) Subject to section 62, the outline must, in no more than 3,000
words, provide sufficient information on the scheme to enable members of the
existing organisations to make informed decisions in relation to the
scheme.
(1) The rules of:
(a) an association proposed to be registered as an organisation that is
the proposed amalgamated organisation under a proposed amalgamation;
or
(b) an existing organisation that is the proposed amalgamated organisation
under a proposed amalgamation;
may, despite section 143, make provision in relation to:
(c) the holding of office in the proposed amalgamated organisation by
persons holding office in any of the proposed de-registering organisations
immediately before the amalgamation takes effect; and
(d) in a case to which paragraph (b) applies—the continuation
of the holding of office by persons holding office in the proposed amalgamated
organisation immediately before the amalgamation takes effect;
but the rules may not permit an office to be held under paragraph (c)
or (d) for longer than:
(e) the period that equals the unexpired part of the term of the office
held by the person immediately before the day on which the amalgamation takes
effect; or
(f) the period that ends 2 years after that day;
whichever ends last, without an ordinary election being held in relation to
the office.
(2) Where:
(a) a person holds an office in an organisation, being an office held
under rules made under subsection (1); and
(b) that organisation is involved in a proposed amalgamation;
the rules of the proposed amalgamated organisation must not permit the
person to hold an office in the proposed amalgamated organisation after the
amalgamation takes effect, without an ordinary election being held in relation
to the office, for longer than the period that equals the unexpired part of the
term of the office mentioned in paragraph (a) immediately before the day on
which the amalgamation takes effect.
(3) The rules of an organisation that is the proposed amalgamated
organisation under a proposed amalgamation must, subject to this section, make
reasonable provision for the purpose of synchronising elections for offices in
the organisation held under paragraph (1)(c) with elections for other
offices in the organisation.
(4) Section 145 does not apply to an office held under rules made
under subsection (1).
(5) Section 146 applies to an office held under rules made under
paragraph (1)(c).
(6) In this section:
ordinary election means an election held under rules that
comply with section 143.
(1) The proposed amalgamated organisation under a proposed amalgamation
may lodge in the Industrial Registry an application for exemption from the
requirement that a ballot of its members be held in relation to the
amalgamation.
(2) The application must be lodged with the application that is lodged
under section 44 in relation to the amalgamation.
(1) An existing organisation concerned in a proposed amalgamation may
lodge in the Industrial Registry an application for approval of a proposal for
the submission of the amalgamation to a ballot of its members that is not
conducted under section 65.
(2) The application must be lodged with the application that is lodged
under section 44 in relation to the amalgamation.
(1) Subject to section 60, an existing organisation concerned in a
proposed amalgamation may lodge a written statement of not more than 2,000 words
in support of the proposed principal amalgamation and each proposed alternative
amalgamation.
(2) The statement must be lodged with the application that is lodged under
section 44 in relation to the amalgamation.
All ballots under this Part are to be conducted by the AEC.
(1) Where an application is lodged under section 44 in relation to a
proposed amalgamation, the Industrial Registrar 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 ballots that may be required in relation to the
amalgamation.
(1) An electoral official who is authorised, in writing, by the AEC for
the purposes of a proposed amalgamation may, where it is reasonably necessary
for the purposes of any ballot that may be required or is required in relation
to the amalgamation, by written notice, require an officer or employee of the
organisation concerned or a branch of the organisation concerned:
(a) to give to the electoral official, within the period (being a 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
(b) to produce or make available to the electoral 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:
(i) in the custody or under the control of the person; or
(ii) to which the person has access.
(2) An officer or employee of an organisation or branch of an organisation
commits an offence if he or she fails to comply with a requirement made under
subsection (1).
Maximum penalty: 30 penalty units.
(3) An offence against subsection (2) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(4) Subsection (2) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter mentioned in subsection (4), see subsection 13.3(3) of the
Criminal Code.
(5) 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.
(6) 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 52(3).
(7) 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.
(1) If a requirement is made under subsection 51(1) in relation to the
register, or part of the register, kept by an organisation under
section 230, 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 230(2).
Note: This subsection is a civil penalty provision (see
section 305).
(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 305).
Where an application is lodged under section 44 in relation to a
proposed amalgamation, the Commission:
(a) must immediately fix a time and place for hearing submissions in
relation to:
(i) the granting of an approval for the submission of the amalgamation to
ballot; and
(ii) if an application for a declaration under section 43 was lodged
with the application—the making of a declaration under section 43 in
relation to the amalgamation; and
(iii) if an application was lodged under section 46 for exemption
from the requirement that a ballot be held in relation to the
amalgamation—the granting of the exemption; and
(iv) if an application was lodged under section 47 for approval of a
proposal for the submission of the amalgamation to a ballot that is not
conducted under section 65—the granting of the approval;
and
(b) must ensure that all organisations are promptly notified of the time
and place of the hearing; and
(c) may inform any other person who is likely to be interested of the time
and place of the hearing.
(1) Submissions at a hearing arranged under subsection 43(3) or
section 53 may only be made under this section.
(2) Submissions may be made by the applicants.
(3) Submissions may be made by another person only with the leave of the
Commission and may be made by the person only in relation to a prescribed
matter.
Approval must be given if certain conditions satisfied
(1) If, at the conclusion of the hearing arranged under section 53 in
relation to a proposed amalgamation, the Commission is satisfied that:
(a) the amalgamation does not involve the registration of an association
as an organisation; and
(b) a person who is not eligible for membership of an existing
organisation concerned in the amalgamation would not be eligible for membership
of the proposed amalgamated organisation immediately after the amalgamation
takes effect; and
(c) any proposed alteration of the name of an existing organisation
concerned in the amalgamation will not result in the organisation having a name
that is the same as the name of another organisation or is so similar to the
name of another organisation as to be likely to cause confusion; and
(d) any proposed alterations of the rules of an existing organisation
comply with, and are not contrary to, this Act, the Workplace Relations Act,
awards, certified agreements and old IR agreements, and are not contrary to law;
and
(e) any proposed de-registration of an existing organisation complies with
this Act and is not otherwise contrary to law;
the Commission must approve the submission of the amalgamation to
ballot.
Approval generally refused if conditions not satisfied
(2) If the Commission is not satisfied, the Commission must, subject to
subsections (3) and (7), refuse to approve, under this section, the
submission of the amalgamation to ballot.
Approval may be given if conditions will be satisfied
later
(3) If, apart from this subsection, the Commission would be required to
refuse to approve the submission of the amalgamation to ballot, the Commission
may:
(a) permit the applicants to alter the scheme for the amalgamation,
including any proposed alterations of the rules of the existing organisations
concerned in the amalgamation; or
(b) accept an undertaking by the applicants to alter the scheme for the
amalgamation, including any proposed alterations of the rules of the existing
organisations concerned in the amalgamation;
and, if the Commission is satisfied that the matters mentioned in
subsection (1) will be met, the Commission must approve the submission of
the amalgamation to ballot.
Permission to alter amalgamation scheme
(4) A permission under paragraph (3)(a):
(a) may, despite anything in the rules of an existing organisation
concerned in the proposed amalgamation, authorise the organisation to alter the
scheme (including any proposed alterations of the rules of the organisation) by
resolution of its committee of management; and
(b) may make provision in relation to the procedure that, despite anything
in those rules, may be followed, or is to be followed, by the committee of
management in that regard; and
(c) may be given subject to conditions.
Powers of Commission if conditions or undertakings
breached
(5) If:
(a) the Commission:
(i) gives a permission under paragraph (3)(a) subject to conditions;
or
(ii) accepts an undertaking under paragraph (3)(b); and
(b) the conditions are breached or the undertaking is not fulfilled within
the period allowed by the Commission;
the Commission may:
(c) amend the scheme for the amalgamation, including any proposed
alterations of the rules of the existing organisations concerned in the proposed
amalgamation; or
(d) give directions and orders:
(i) in relation to the conduct of the ballot for the amalgamation;
or
(ii) otherwise in relation to the procedure to be followed in relation to
the amalgamation.
(6) Subsection (5) does not limit by implication the powers that the
Commission has apart from that subsection.
Powers of Commission to adjourn proceeding
(7) If, apart from this subsection, the Commission would be required to
refuse to approve the submission of the amalgamation to ballot, the Commission
may adjourn the proceeding.
(8) Subsection (7) does not limit by implication the power of the
Commission to adjourn the proceeding at any stage.
(1) Objection to a matter involved in a proposed amalgamation may only be
made to the Commission under this section.
(2) Objection may be made to the Commission in relation to the
amalgamation only if the Commission has refused to approve, under
section 55, the submission of the amalgamation to ballot.
(3) Objection may be made by a prescribed person on a prescribed
ground.
(4) The Commission is to hear, as prescribed, all objections duly made to
the amalgamation.
Approval must be given if certain conditions satisfied
(1) If, after the prescribed time allowed for making objections under
section 56 in relation to a proposed amalgamation and after hearing any
objections duly made to the amalgamation, the Commission:
(a) finds that no duly made objection is justified; and
(b) is satisfied that, so far as the amalgamation involves:
(i) the registration of an association; or
(ii) a change in the name of an organisation; or
(iii) an alteration of the rules of an organisation; or
(iv) the de-registration of an organisation under this Part;
it complies with, and is not contrary to, this Act, the Workplace
Relations Act, awards, certified agreements and old IR agreements and is not
otherwise contrary to law;
the Commission must approve the submission of the amalgamation to
ballot.
Approval generally refused if conditions not satisfied
(2) If the Commission is not satisfied, the Commission must, subject to
subsections (3) and (8), refuse to approve, under this section, the
submission of the amalgamation to ballot.
Approval may be given if conditions will be satisfied
later
(3) If, apart from this subsection, the Commission would be required to
refuse to approve the submission of the amalgamation to ballot, the Commission
may:
(a) permit the applicants to alter the scheme for the amalgamation,
including:
(i) the rules of any association proposed to be registered as an
organisation in relation to the amalgamation; or
(ii) any proposed alterations of the rules of the existing organisations
concerned in the amalgamation; or
(b) accept an undertaking by the applicants to alter the scheme for the
amalgamation, including:
(i) the rules of any association proposed to be registered as an
organisation in relation to the amalgamation; or
(ii) any proposed alterations of the rules of the existing organisations
concerned in the amalgamation;
and, if the Commission is satisfied that the matters mentioned in
subsection (1) will be met, the Commission must approve the submission of
the amalgamation to ballot.
Permission to alter amalgamation scheme
(4) A permission under subparagraph (3)(a)(i):
(a) may, despite anything in the rules of any association proposed to be
registered as an organisation in relation to the proposed amalgamation,
authorise the existing organisations concerned in the amalgamation to alter the
scheme so far as it affects that association (including any of its rules) by
resolution of their committees of management; and
(b) may make provision in relation to the procedure that, despite anything
in the rules of the existing organisations or the rules of the association, may
be followed, or is to be followed, by the committees of management in that
regard; and
(c) may be given subject to conditions.
(5) A permission under subparagraph (3)(a)(ii):
(a) may, despite anything in the rules of an existing organisation
concerned in the proposed amalgamation, authorise the organisation to alter the
scheme (including any proposed alterations of the rules of the organisation, but
not including the scheme so far as it affects any association proposed to be
registered as an organisation in relation to the proposed amalgamation) by
resolution of its committee of management; and
(b) may make provision in relation to the procedure that, despite anything
in those rules, may be followed, or is to be followed, by the committee of
management in that regard; and
(c) may be given subject to conditions.
Powers of Commission if conditions or undertakings
breached
(6) If:
(a) the Commission:
(i) gives a permission under paragraph (3)(a) subject to conditions;
or
(ii) accepts an undertaking under paragraph (3)(b); and
(b) the conditions are breached or the undertaking is not fulfilled within
the period allowed by the Commission;
the Commission may:
(c) amend the scheme for the amalgamation, including:
(i) the rules of any association proposed to be registered as an
organisation in relation to the amalgamation; or
(ii) any proposed alterations of the rules of the existing organisations
concerned in the amalgamation; or
(d) give directions and orders:
(i) in relation to the conduct of the ballot for the amalgamation;
or
(ii) otherwise in relation to the procedure to be followed in relation to
the amalgamation.
(7) Subsection (6) does not limit by implication the powers that the
Commission has apart from that subsection.
Powers of Commission to adjourn proceeding
(8) If, apart from this subsection, the Commission would be required to
refuse to approve the submission of the amalgamation to ballot, the Commission
may adjourn the proceeding.
(9) Subsection (8) does not limit by implication the power of the
Commission to adjourn the proceeding at any stage.
(1) If the Commission approves, under section 55 or 57, the
submission of a proposed amalgamation to ballot, the Commission must, after
consulting with the Electoral Commissioner, fix a day as the commencing day of
the ballot and a day as the closing day of the ballot.
(2) The commencing day must be a day not later than 28 days after the day
on which the approval is given unless:
(a) the Commission is satisfied that the AEC requires a longer period to
make the arrangements necessary to enable it to conduct the ballot; or
(b) the existing organisations concerned in the amalgamation request the
Commission to fix a later day.
(3) If the scheme for the amalgamation contains a proposed alternative
provision, a single day is to be fixed as the commencing day, and a single day
is to be fixed as the closing day, for all ballots in relation to the proposed
amalgamation.
(4) The Commission may, after consulting with the Electoral Commissioner,
vary the commencing day or the closing day.
(5) Subsection (4) does not limit by implication the powers of the
person conducting a ballot under this Part.
The roll of voters for a ballot for a proposed amalgamation is the roll
of persons who, on the day on which the Commission fixes the commencing day and
closing day of the ballot or 28 days before the commencing day of the ballot
(whichever is the later):
(a) have the right under the rules of the existing organisation concerned
to vote at such a ballot; or
(b) if the rules of the existing organisation concerned do not then
provide for the right to vote at such a ballot—have the right under the
rules of the organisation to vote at a ballot for an election for an office in
the organisation that is conducted by a direct voting system.
“Yes” statement may be altered
(1) If an existing organisation concerned in a proposed amalgamation
lodges a statement under section 48 in relation to the amalgamation, the
Commission may permit the organisation to alter the statement.
Members of organisation may lodge “no”
statement
(2) Not later than 7 days before the day fixed under section 53 for
hearing submissions in relation to the amalgamation, members of the organisation
(being members whose number is at least the required minimum number) may lodge
in the Industrial Registry a written statement of not more than 2,000 words in
opposition to the proposed principal amalgamation and any proposed alternative
amalgamation.
“No” statement may be altered
(3) The Commission may permit a statement lodged under subsection (2)
to be altered.
“Yes” and “no” statements to be sent to
voters
(4) Subject to subsections (5), (6) and (7), a copy of the statements
mentioned in subsections (1) and (2), or, if those statements have been
altered or amended, those statements as altered or amended, must accompany the
ballot paper sent to the persons entitled to vote at a ballot for the
amalgamation.
2 or more “no” statements must be combined
(5) If 2 or more statements in opposition to the amalgamation are duly
lodged in the Industrial Registry under subsection (2):
(a) the Commission must prepare, or cause to be prepared, in consultation,
if practicable, with representatives of the persons who lodged each of the
statements, a written statement of not more than 2,000 words in opposition to
the amalgamation based on both or all the statements and, as far as practicable,
presenting fairly the substance of the arguments against the amalgamation
contained in both or all the statements; and
(b) the statement prepared by the Commission must accompany the ballot
paper for the amalgamation as if it had been the sole statement lodged under
subsection (2).
Commission may correct factual errors in statements
(6) The Commission may amend a statement mentioned in subsection (1)
or (2) to correct factual errors or to ensure that the statement complies with
this Act.
Statements may include photos etc. if Commission approves
(7) A statement mentioned in subsection (1) or (2) may, if the
Commission approves, include matter that is not in the form of words, including,
for example, diagrams, drawings, illustrations, photographs and
symbols.
(8) A statement prepared under subsection (5) may include matter that
is not in the form of words, including, for example, diagrams, drawings,
illustrations, photographs and symbols.
Certain statements not required to be sent to voters
(9) Subsection (4) and paragraph (5)(b) do not apply to a ballot
that is not conducted under section 65.
Note: Ballots conducted under section 65 are secret
postal ballots.
Definition
(10) In this section:
required minimum number, in relation to an organisation,
means:
(a) 5% of the total number of members of the organisation on the day on
which the application was lodged under section 44 in relation to the
proposed amalgamation concerned; or
(b) 1,000;
whichever is the lesser.
Permission to alter amalgamation scheme
(1) The Commission may, at any time before the commencing day of the
ballot for a proposed amalgamation, permit the existing organisations concerned
in the amalgamation to alter the scheme for the amalgamation,
including:
(a) the rules of any association proposed to be registered as an
organisation in relation to the amalgamation; or
(b) any proposed alterations of the rules of the existing organisations
concerned in the amalgamation.
Permission relating to rules of new organisations
(2) A permission under paragraph (1)(a):
(a) may, despite anything in the rules of any association proposed to be
registered as an organisation in relation to the proposed amalgamation,
authorise the existing organisations concerned in the amalgamation to alter the
scheme so far as it affects that association (including any of its rules) by
resolution of their committees of management; and
(b) may make provision in relation to the procedure that, despite anything
in the rules of the existing organisations or the rules of the association, may
be followed, or is to be followed, by the committees of management in that
regard; and
(c) may be given subject to conditions.
Permission relating to rules of existing organisations
(3) A permission under paragraph (1)(b):
(a) may, despite anything in the rules of an existing organisation
concerned in a proposed amalgamation, authorise the organisation to amend the
scheme (including any proposed alterations of the rules of the organisation, but
not including the scheme so far as it affects any association proposed to be
registered as an organisation in relation to the proposed amalgamation) by
resolution of its committee of management; and
(b) may make provision in relation to the procedure that, despite anything
in those rules, may be followed, or is to be followed, by the committee of
management in that regard; and
(c) may be given subject to conditions.
Powers of Commission if conditions breached
(4) If:
(a) the Commission gives a permission under subsection (1) subject to
conditions; and
(b) the conditions are breached;
the Commission may:
(c) amend the scheme for the amalgamation, including:
(i) the rules of any association proposed to be registered as an
organisation in relation to the amalgamation; or
(ii) any proposed alterations of the rules of the existing organisations
concerned in the amalgamation; or
(d) give directions and orders:
(i) in relation to the conduct of the ballot for the amalgamation;
or
(ii) otherwise in relation to the procedure to be followed in relation to
the amalgamation.
(5) Subsection (4) does not limit by implication the powers that the
Commission has apart from that subsection.
Outline of scheme must change if scheme changes
(6) If the scheme for the amalgamation is altered or amended (whether
under this section or otherwise), the outline of the scheme must be altered or
amended to the extent necessary to reflect the alterations or
amendments.
(1) The outline of the scheme for a proposed amalgamation may, if the
Commission approves, consist of more than 3,000 words.
(2) The outline may, if the Commission approves, include matter that is
not in the form of words, including, for example, diagrams, drawings,
illustrations, photographs and symbols.
(3) The Commission:
(a) may, at any time before the commencing day of the ballot for the
amalgamation, permit the existing organisations concerned in the amalgamation to
alter the outline; and
(b) may amend the outline to correct factual errors or otherwise to ensure
that it complies with this Act.
(1) If:
(a) an application was lodged under section 46 for exemption from the
requirement that a ballot be held in relation to a proposed amalgamation;
and
(b) the total number of members that could be admitted to membership of
the proposed amalgamated organisation on, and because of, the amalgamation does
not exceed 25% of the number of members of the applicant organisation on the day
on which the application was lodged;
the Commission must, at the conclusion of the hearing arranged under
section 53 in relation to the amalgamation, grant the exemption unless the
Commission considers that, in the special circumstances of the case, the
exemption should be refused.
(2) If the exemption is granted, the members of the applicant organisation
are taken to have approved the proposed principal amalgamation and each proposed
alternative amalgamation (if any).
If:
(a) an application was lodged under section 47 for approval of a
proposal for submission of a proposed amalgamation to ballot that is not
conducted under section 65; and
(b) the proposal provides for:
(i) the ballot to be by secret ballot of the members of the organisation;
and
(ii) the ballot to be held at duly constituted meetings of the members;
and
(iii) the ballot to be conducted by the AEC; and
(iv) the members to be given at least 21 days’ notice of the
meetings, the matters to be considered at the meetings and their entitlement to
an absent vote; and
(v) the distribution or publication of:
(A) the outline of the scheme for the amalgamation; and
(B) the statements mentioned in subsections 60(1) and (2); and
(vi) absent voting; and
(vii) the ballot to be otherwise conducted in accordance with the
regulations; and
(c) the Commission is satisfied, after consulting with the Electoral
Commissioner:
(i) that the proposal is practicable; and
(ii) that approval of the proposal is likely:
(A) to result in participation by members of the organisation that is
fuller than the participation that would have been likely to have resulted if
the ballot were conducted under section 65; and
(B) to give the members of the organisation an adequate opportunity to
vote on the amalgamation without intimidation;
the Commission must, at the conclusion of the hearing arranged under
section 53 in relation to the amalgamation, approve the proposal.
Ballot on proposed principal amalgamation
(1) If the Commission approves, under section 55 or 57, the
submission of a proposed amalgamation to ballot, the AEC must, in relation to
each of the existing organisations concerned in the amalgamation, conduct a
secret postal ballot of the members of the organisation on the question whether
they approve the proposed principal amalgamation.
Ballot at same time on proposed alternative amalgamation
(2) If the scheme for the amalgamation contains a proposed alternative provision, the AEC must also conduct, at the same ti