Fair Work (Registered Organisations) Act 2009

Act No. 86 of 1988 as amended

This compilation was prepared on 20 July 2009
taking into account amendments up to Act No. 70 of 2009

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra

  

  

  

Contents

Chapter 1—Preliminary                                                                                                       1

1............ Short title [see Note 1]....................................................................... 1

2............ Commencement [see Note 1].............................................................. 1

5............ Parliament’s intention in enacting this Act......................................... 1

5A......... Act binds Crown................................................................................ 2

5B......... Schedule 1 has effect........................................................................... 2

5C......... Schedule 2 has effect........................................................................... 2

6............ Definitions.......................................................................................... 2

9............ Meaning of office.............................................................................. 11

9A......... Meaning of federal counterpart........................................................ 12

10.......... Forging and uttering.......................................................................... 12

11.......... Actions and opinions of AEC.......................................................... 13

12.......... Membership of organisations........................................................... 14

13.......... Functions of FWA............................................................................ 14

15.......... Disapplication of Part 2.5 of Criminal Code................................... 14

16.......... Operation of offence provisions....................................................... 14

Chapter 2—Registration and cancellation of registration                             16

Part 1—Simplified outline of Chapter                                                                        16

17.......... Simplified outline.............................................................................. 16

Part 2—Registration                                                                                                           17

Division 1—Types of associations that may apply for registration     17

18.......... Employer and employee associations may apply............................ 17

18A....... Federally registrable employer associations..................................... 17

18B....... Federally registrable employee associations..................................... 17

18C....... Federally registrable enterprise associations.................................... 18

18D....... Constitutional validity...................................................................... 20

Division 2—Registration criteria                                                                         23

19.......... Criteria for registration of associations other than enterprise associations             23

20.......... Criteria for registration of enterprise associations............................ 25

Division 3—Prohibited conduct in relation to formation or registration of employee associations        27

21.......... Prohibited conduct—employers....................................................... 27

22.......... Prohibited conduct—organisations................................................... 28

23.......... Powers of Federal Court in relation to prohibited conduct.............. 29

24.......... Certain actions considered to be done by organisation or employer 29

Division 4—Registration process                                                                        31

25.......... Applicant for registration may change its name or alter its rules..... 31

26.......... Registration....................................................................................... 31

26A....... Validation of registration.................................................................. 32

27.......... Incorporation.................................................................................... 32

Part 3—Cancellation of registration                                                                           33

28.......... Application for cancellation of registration...................................... 33

29.......... Orders where cancellation of registration deferred........................... 36

30.......... Cancellation of registration on technical grounds etc........................ 37

31.......... Cancellation to be recorded............................................................... 39

32.......... Consequences of cancellation of registration.................................... 39

Part 4—FWA’s powers under this Chapter                                                            40

33.......... Powers exercisable by President or a Deputy President.................. 40

Chapter 3—Amalgamation and withdrawal from amalgamation                41

Part 1—Simplified outline of Chapter                                                                        41

34.......... Simplified outline.............................................................................. 41

Part 2—Amalgamation of organisations                                                                  42

Division 1—General                                                                                                    42

35.......... Definitions........................................................................................ 42

36.......... Procedure to be followed for proposed amalgamation etc................ 45

37.......... Exercise of FWA’s powers under this Part...................................... 46

Division 2—Preliminary matters                                                                          47

38.......... Federations....................................................................................... 47

39.......... Use of resources to support proposed amalgamation...................... 48

Division 3—Commencement of amalgamation procedure                      50

40.......... Scheme for amalgamation.................................................................. 50

41.......... Alternative scheme for amalgamation............................................... 50

42.......... Approval by committee of management.......................................... 51

43.......... Community of interest declaration................................................... 51

44.......... Application for approval for submission of amalgamation to ballot 54

45.......... Holding office after amalgamation.................................................... 54

46.......... Application for exemption from ballot............................................. 55

47.......... Application for ballot not conducted under section 65.................... 56

48.......... Lodging “yes” case........................................................................... 56

Division 4—Role of AEC                                                                                          57

49.......... Ballots to be conducted by AEC...................................................... 57

50.......... Notification of AEC......................................................................... 57

51.......... Providing information etc. to electoral officials................................ 57

52.......... Declaration by secretary etc. of organisation................................... 58

Division 5—Procedure for approval of amalgamation                               60

53.......... Fixing hearing in relation to amalgamation etc.................................. 60

54.......... Submissions at amalgamation hearings............................................. 60

55.......... Approval for submission to ballot of amalgamation not involving extension of eligibility rules etc.      61

56.......... Objections in relation to amalgamation involving extension of eligibility rules etc. 63

57.......... Approval for submission to ballot of amalgamation involving extension of eligibility rules etc.            63

58.......... Fixing commencing and closing days of ballot.................................. 66

59.......... Roll of voters for ballot.................................................................... 67

60.......... “Yes” case and “no” case for amalgamation..................................... 67

61.......... Alteration and amendment of scheme............................................... 69

62.......... Outline of scheme for amalgamation................................................. 71

63.......... Exemption from ballot...................................................................... 71

64.......... Approval for ballot not conducted under section 65........................ 71

65.......... Secret postal ballot of members........................................................ 72

66.......... Determination of approval of amalgamation by members................ 74

67.......... Further ballot if amalgamation not approved................................... 74

68.......... Post‑ballot report by AEC............................................................... 75

69.......... Inquiries into irregularities................................................................ 75

70.......... Approval of amalgamation............................................................... 76

71.......... Expenses of ballot............................................................................. 76

72.......... Offences in relation to ballot............................................................ 77

Division 6—Amalgamation taking effect                                                          79

73.......... Action to be taken after ballot.......................................................... 79

74.......... Assets and liabilities of de‑registered organisation become assets and liabilities of amalgamated organisation       80

75.......... Resignation from membership.......................................................... 80

76.......... Effect of amalgamation on modern awards, orders and enterprise agreements        81

77.......... Effect of amalgamation on agreement under section 151.................. 81

78.......... Instruments....................................................................................... 81

79.......... Pending proceedings......................................................................... 82

80.......... Division applies despite laws and agreements prohibiting transfer etc.  82

81.......... Amalgamated organisation to take steps necessary to carry out amalgamation      83

82.......... Certificates in relation to land and interests in land.......................... 83

83.......... Certificates in relation to charges...................................................... 83

84.......... Certificates in relation to shares etc.................................................. 84

85.......... Certificates in relation to other assets.............................................. 84

86.......... Other matters.................................................................................... 85

87.......... Federal Court may resolve difficulties.............................................. 85

Division 7—Validation                                                                                                86

88.......... Validation of certain acts done in good faith..................................... 86

89.......... Validation of certain acts after 4 years............................................. 87

90.......... Orders affecting application of section 88 or 89.............................. 87

91.......... Federal Court may make orders in relation to consequences of invalidity              88

Part 3—Withdrawal from amalgamations                                                               90

Division 1—General                                                                                                    90

92.......... Object of Part................................................................................... 90

93.......... Definitions etc.................................................................................. 90

Division 2—Ballots for withdrawal from amalgamated organisations 94

94.......... Applications to FWA for ballots..................................................... 94

95.......... Outline of proposed withdrawal...................................................... 95

96.......... Filing the “yes” case......................................................................... 96

97.......... Filing the “no” case........................................................................... 96

98.......... Provisions relating to outlines and statements of “yes” and “no” cases 97

99.......... Notifying of applications for ballots................................................ 97

100........ Orders for ballots.............................................................................. 97

101........ Financial members only eligible to vote............................................ 98

102........ Conduct of ballots............................................................................ 98

103........ Providing information etc. to electoral officials................................ 99

104........ Declaration by secretary etc. of organisation................................. 100

105........ Offences in relation to ballots......................................................... 101

106........ Certificate showing particulars of the ballot................................... 103

107........ Post‑ballot report by AEC............................................................. 103

108........ Inquiries into irregularities.............................................................. 104

108A..... Powers of FWA to be exercised by President or Full Bench......... 104

Division 3—Giving effect to ballots                                                                  105

109........ Determining the day of withdrawal................................................ 105

110........ Registration of constituent part...................................................... 106

111........ Choice of organisation following withdrawal of separately identifiable constituent part       106

112........ Members of amalgamated organisation may join newly registered organisation     108

113........ Orders of FWA, modern awards etc. made before withdrawal...... 109

113A..... Enterprise agreements made after withdrawal................................ 109

114........ Effect of withdrawal on agreement under section 151.................... 110

115........ Instruments..................................................................................... 110

116........ Pending proceedings....................................................................... 110

117........ Division applies despite laws and agreements prohibiting transfer etc.  111

118........ Amalgamated organisation, constituent part and newly registered organisation to take necessary steps               112

119........ Certificates in relation to land and interests in land........................ 112

120........ Certificates in relation to charges.................................................... 113

121........ Certificates in relation to shares etc................................................ 113

122........ Certificates in relation to other assets............................................ 114

123........ Holding office after withdrawal...................................................... 114

124........ Other matters.................................................................................. 115

125........ Federal Court may resolve difficulties............................................ 115

Division 4—Validation                                                                                              116

126........ Validation of certain acts done in good faith................................... 116

127........ Validation of certain acts after 4 years........................................... 117

128........ Orders affecting application of section 126 or 127........................ 117

129........ Federal Court may make orders in relation to consequences of invalidity              118

Division 5—Miscellaneous                                                                                    120

130........ Certain actions etc. not to constitute breach of rules of amalgamated organisation 120

131........ Amalgamated organisation not to penalise members etc................ 120

Chapter 4—Representation orders                                                                          123

Part 1—Simplified outline                                                                                               123

132........ Simplified outline............................................................................ 123

Part 2—Representation orders                                                                                   124

133........ Orders about representation rights of organisations of employees 124

134........ Preconditions for making of orders................................................. 124

135........ Factors to be taken into account by FWA..................................... 125

136........ Order may be subject to limits....................................................... 125

137........ Organisation must comply with order............................................ 125

Part 3—Representation orders for workplace groups                                   126

137A..... Orders about representation rights of organisations of employees 126

137B..... Factors to be taken into account by FWA..................................... 127

137C..... Submissions by peak councils........................................................ 128

137D..... Order may be subject to limits....................................................... 128

137E...... Organisation must comply with order............................................ 128

Part 4—Miscellaneous                                                                                                     129

137F...... FWA may make orders reflecting State representation orders....... 129

138........ Exercise of FWA’s powers under this Chapter.............................. 129

138A..... Representation rights of former State‑registered associations........ 130

Chapter 5—Rules of organisations                                                                           131

Part 1—Simplified outline of Chapter                                                                      131

139........ Simplified outline............................................................................ 131

Part 2—Rules of organisations                                                                                   132

Division 1—General                                                                                                  132

140........ Organisations to have rules............................................................. 132

141........ Rules of organisations..................................................................... 132

142........ General requirements for rules........................................................ 134

Division 2—Rules relating to elections for office                                      135

143........ Rules to provide for elections for offices....................................... 135

144........ Rules to provide for elections for office by secret postal ballot.... 136

145........ Rules to provide for terms of office............................................... 138

146........ Rules may provide for filling of casual vacancies........................... 138

147........ Model rules for conduct of elections.............................................. 139

Division 3—Rules relating to conduct of officers and employees    140

148........ Model rules about conduct of officers and employees................... 140

Division 4—Other rules                                                                                          141

Subdivision A—Loans, grants and donations                                                     141

149........ Rules to provide conditions for loans, grants and donations by organisations        141

Subdivision B—Agreements between organisations and State unions         142

150........ Definitions...................................................................................... 142

151........ Membership agreements................................................................. 143

152........ Assets and liabilities agreements.................................................... 145

153........ Party to section 152 agreement may apply to Federal Court for orders 146

154........ Termination of section 152 agreement............................................ 146

Subdivision BA—Branches of organisations                                                    147

154A..... Branch autonomy........................................................................... 147

154B..... Branch funds................................................................................... 147

Subdivision C—Miscellaneous                                                                             148

155........ Exercise of FWA’s powers under this Division............................. 148

Division 5—Alteration of rules and evidence of rules                            149

156........ General Manager may determine alterations of rules..................... 149

157........ FWA may determine alteration of rules where there has been a breach of an undertaking      149

158........ Change of name or alteration of eligibility rules of organisation..... 149

158A..... Alteration of eligibility rules of organisation by General Manager 151

159........ Alteration of other rules of organisation......................................... 152

160........ Certain alterations of rules to be recorded...................................... 153

161........ Evidence of rules............................................................................. 153

162........ Powers of FWA.............................................................................. 153

Part 3—Validity and performance of rules etc                                                   154

163........ Rules contravening section 142...................................................... 154

164........ Directions for performance of rules................................................ 156

164A..... Directions to rectify breach of rule of organisation........................ 157

164B..... Orders under sections 164 and 164A............................................. 157

Chapter 6—Membership of organisations                                                           159

Part 1—Simplified outline of Chapter                                                                      159

165........ Simplified outline............................................................................ 159

Part 2—Entitlement to membership                                                                         160

166........ Entitlement to become and to remain a member............................. 160

167........ Federal Court may declare on person’s entitlement to membership 161

168........ Application for membership of organisation by person treated as having been a member     163

169........ Request by member for statement of membership......................... 164

170........ Rectification of register of members............................................... 164

Part 3—Termination of membership                                                                        165

171........ Federal Court may order that persons cease to be members of organisations         165

171A..... Cessation of membership if member is not an employee etc......... 165

172........ Non‑financial members to be removed from the register................ 165

173........ No entrance fee if person re‑joins within 6 months....................... 166

174........ Resignation from membership........................................................ 166

Part 4—False information, disputes and arrears of dues                             168

175........ False representation as to membership of organisation.................. 168

176........ False representation about resignation from organisation.............. 168

177........ Disputes between organisations and members............................... 168

178........ Recovery of arrears......................................................................... 168

179........ Liability for arrears......................................................................... 169

Part 5—Conscientious objection to membership                                               170

180........ Conscientious objection to membership of organisations.............. 170

Chapter 7—Democratic control                                                                                  172

Part 1—Simplified outline of Chapter                                                                      172

181........ Simplified outline............................................................................ 172

Part 2—Conduct of elections for office and other positions                       173

182........ Conduct by AEC............................................................................ 173

183........ Application for organisation or branch to conduct its elections for office              173

184........ Objections to application to conduct elections for office............... 174

185........ Threats etc. in relation to section 184 objections........................... 174

186........ General Manager may permit organisation or branch to conduct its elections for office        175

187........ Organisation may ask AEC to conduct elections for positions other than offices  175

188........ Declaration envelopes etc. to be used for postal ballots................ 176

189........ General Manager to arrange for conduct of elections..................... 176

190........ Organisation or branch must not assist one candidate over another 177

191........ Organisation to provide returning officer with copy of register..... 177

192........ Declaration by secretary etc. of organisation................................. 178

193........ Provisions applicable to elections conducted by AEC................... 178

194........ Hindering or obstructing electoral official or other person............. 180

195........ Improper interference with election process.................................. 180

196........ Death of candidate.......................................................................... 182

197........ Post‑election report by AEC.......................................................... 182

198........ Organisation to respond to adverse report on rules....................... 183

199........ Ballot papers etc. to be preserved.................................................. 185

Part 3—Inquiries into elections for office                                                             187

200........ Application for inquiry.................................................................. 187

201........ Instituting of inquiry...................................................................... 187

202........ Federal Court may authorise General Manager to take certain action 188

203........ Identity cards.................................................................................. 189

204........ Interim orders................................................................................. 190

205........ Procedure at hearing........................................................................ 192

206........ Action by Federal Court................................................................. 192

207........ General Manager to make arrangements for conduct of elections etc. 193

208........ Enforcement of orders.................................................................... 193

209........ Validity of certain acts etc. where election declared void............... 194

Part 4—Disqualification from office                                                                         195

Division 1—Simplified outline of Part                                                              195

210........ Simplified outline............................................................................ 195

Division 2—Persons who have been convicted of a prescribed offence               196

211........ Simplified outline of Division......................................................... 196

212........ Meaning of prescribed offence........................................................ 196

213........ Meaning of convicted of a prescribed offence................................. 196

213A..... Meaning of exclusion period and reduced exclusion period........... 197

214........ Certificate of registrar etc. is evidence of facts............................... 197

215........ Certain persons disqualified from holding office in organisations.. 198

216........ Application for leave to hold office in organisations by prospective candidate for office      199

217........ Application for leave to hold office in organisations by office holder 201

218........ Federal Court to have regard to certain matters.............................. 201

219........ Action by Federal Court................................................................. 202

220........ Part not to affect spent convictions scheme................................... 202

Chapter 8—Records and accounts                                                                            203

Part 1—Simplified outline of Chapter                                                                      203

229........ Simplified outline............................................................................ 203

Part 2—Records to be kept and lodged by organisations                            204

230........ Records to be kept and lodged by organisations............................ 204

231........ Certain records to be held for 7 years............................................. 204

232........ Offence to interfere with register or copy...................................... 205

233........ Obligation to lodge information with FWA.................................... 205

234........ Storage of records........................................................................... 206

235........ General Manager may authorise access to certain records............. 206

236........ General Manager may direct organisation to deliver copy of records 207

237........ Organisations to notify particulars of loans, grants and donations 208

Part 3—Accounts and audit                                                                                           210

Division 1—Preliminary                                                                                          210

238........ Simplified outline............................................................................ 210

239........ Part only applies to financial years starting after registration........ 210

240........ Financial years—change in financial year....................................... 211

241........ Exemptions from certain Australian Accounting Standards........... 211

Division 2—Reporting units                                                                                 212

242........ What is a reporting unit?................................................................ 212

243........ Designated officers......................................................................... 212

244........ Members, staff and journals etc. of reporting units....................... 213

245........ Determination of reporting units.................................................... 214

246........ Determination of reporting units—application by organisation.... 214

247........ Determination of reporting units—General Manager initiative...... 215

248........ Determination of reporting units—years certificate applies to...... 215

249........ Determination of reporting units—revocation of certificates......... 215

250........ Determination of reporting units—rule alterations........................ 217

251........ Determination of reporting units—later certificate revokes earlier certificate         217

Division 3—Accounting obligations                                                                  218

Subdivision A—General obligations                                                                    218

252........ Reporting unit to keep proper financial records............................. 218

253........ Reporting unit to prepare general purpose financial report........... 219

254........ Reporting unit to prepare operating report.................................... 220

Subdivision B—Reporting guidelines                                                                 220

255........ Reporting guidelines....................................................................... 220

Division 4—Auditors                                                                                                222

256........ Auditors of reporting units............................................................. 222

257........ Powers and duties of auditors........................................................ 223

258........ Obstruction etc. of auditors............................................................ 225

259........ Reporting unit to forward notices etc. to auditor........................... 226

260........ Auditor entitled to attend meetings at which report presented...... 226

261........ Auditors and other persons to enjoy qualified privilege in certain circumstances   228

262........ Fees and expenses of auditors........................................................ 228

263........ Removal of auditor......................................................................... 228

264........ Resignation of auditor..................................................................... 229

Division 5—Reporting requirements                                                               230

265........ Copies of full report or concise report to be provided to members 230

266........ Full report to be presented to meetings.......................................... 231

267........ Comments by committee members not to be false or misleading... 232

268........ Reports etc. to be lodged with FWA.............................................. 232

Division 6—Reduced reporting requirements for particular reporting units     234

269........ Reporting units with substantial common membership with State registered bodies             234

270........ Organisations with income of less than certain amount................. 235

271........ Exemption from this Part of certain reporting units....................... 236

Division 7—Members’ access to financial records                                  238

272........ Information to be provided to members or General Manager........ 238

273........ Order for inspection of financial records........................................ 239

274........ Frivolous or vexatious applications................................................ 239

275........ Ancillary orders.............................................................................. 240

276........ Disclosure of information acquired in inspection........................... 240

277........ Reporting unit or committee of management may allow member to inspect books                240

278........ FWA to be advised of breaches of Part or rules etc. found during inspection         241

279........ Constitution of FWA..................................................................... 241

Part 4—Access to organisations’ books                                                                242

280........ Right of access to organisation’s books.......................................... 242

Chapter 9—Conduct of officers and employees                                                244

Part 1—Simplified outline of Chapter                                                                      244

281........ Simplified outline............................................................................ 244

Part 2—General duties in relation to the financial management of organisations 245

Division 1—Preliminary                                                                                          245

282........ Simplified outline............................................................................ 245

283........ Part only applies in relation to financial management.................... 245

284........ Meaning of involved....................................................................... 245

Division 2—General duties in relation to the financial management of organisations   246

285........ Care and diligence—civil obligation only........................................ 246

286........ Good faith—civil obligations.......................................................... 247

287........ Use of position—civil obligations.................................................. 247

288........ Use of information—civil obligations............................................. 247

289........ Effect of ratification by members................................................... 248

290........ Compliance with statutory duties.................................................. 248

291........ Interaction of sections 285 to 289 with other laws etc.................. 248

292........ Reliance on information or advice provided by others................... 249

293........ Responsibility for actions of other person..................................... 249

Part 3—General duties in relation to orders and directions                       251

Division 1—Preliminary                                                                                          251

294........ Simplified outline............................................................................ 251

295........ Meaning of involved....................................................................... 251

296........ Application to officers and employees of branches....................... 251

Division 2—General duties in relation to orders and directions       252

297........ Order or direction applying to organisation—civil obligation........ 252

298........ Prohibition order or direction applying to organisation—civil obligation               252

299........ Order or direction applying to officer—civil obligation................. 253

300........ Prohibition order or direction applying to officer—civil obligation 253

301........ Order or direction applying to employee—civil obligation............ 254

302........ Prohibition order or direction applying to employee—civil obligation 254

303........ Order or direction applying to member of organisation—civil obligation               255

303A..... Application of this Division........................................................... 255

Chapter 10—Civil penalties                                                                                          256

Part 1—Simplified outline of Chapter                                                                      256

304........ Simplified outline............................................................................ 256

Part 2—Civil consequences of contravening civil penalty provisions   257

305........ Civil penalty provisions................................................................. 257

306........ Pecuniary penalty orders that the Federal Court may make.......... 258

307........ Compensation orders...................................................................... 259

308........ Other orders.................................................................................... 260

309........ Effect of section 307....................................................................... 260

310........ Who may apply for an order.......................................................... 260

311........ Civil proceedings after criminal proceedings.................................. 261

312........ Criminal proceedings during civil proceedings................................ 261

313........ Criminal proceedings after civil proceedings.................................. 261

314........ Evidence given in proceedings for penalty not admissible in criminal proceedings 261

315........ Relief from liability for contravention of civil penalty provision.. 262

316........ Power to grant relief....................................................................... 263

Chapter 11—Miscellaneous                                                                                         264

Part 1—Simplified outline of Chapter                                                                      264

317........ Simplified outline............................................................................ 264

Part 2—Validating provisions for organisations                                                265

318........ Definition........................................................................................ 265

319........ Validation of certain acts done in good faith................................... 266

320........ Validation of certain acts after 4 years........................................... 268

321........ Order affecting application of section 319 or 320.......................... 269

322........ Federal Court may make orders in relation to consequences of invalidity              270

323........ Federal Court may order reconstitution of branch etc.................... 271

Part 3—Financial assistance and costs                                                                   273

Division 1—Financial assistance                                                                        273

324........ Authorisation of financial assistance.............................................. 273

325........ Federal Court may certify that application was reasonable........... 275

326........ Applications under sections 163, 164, 164A and 167................... 275

327........ Fees for 2 counsel not normally to be paid.................................... 276

328........ Powers of Federal Court not affected............................................. 276

Division 2—Costs                                                                                                       277

329........ Costs only where proceeding instituted vexatiously etc................ 277

Part 4—Inquiries and investigations                                                                        278

330........ General Manager may make inquiries............................................. 278

331........ General Manager may conduct investigations................................ 278

332........ Investigations arising from auditor’s report................................... 279

333........ Investigations arising from request from members......................... 280

334........ Investigations arising from referral under section 278.................... 280

335........ Conduct of investigations............................................................... 280

336........ Action following an investigation................................................... 281

337........ Offences in relation to investigation by General Manager............. 282

Part 4A—Protection for whistleblowers                                                                 284

337A..... Disclosures qualifying for protection under this Part.................... 284

337B..... Disclosure that qualifies for protection not actionable etc............. 285

337C..... Victimisation prohibited................................................................. 285

337D..... Right to compensation.................................................................... 287

Part 4B—Functions and powers of FWA                                                               288

337F...... Powers of inspection...................................................................... 288

337G..... Parties to proceedings..................................................................... 288

337H..... Kinds of orders............................................................................... 288

337J...... Relief not limited to claim............................................................... 289

337K..... Publishing orders............................................................................ 289

Part 5—Jurisdiction of the Federal Court of Australia                                  291

338........ Conferring jurisdiction on the Federal Court.................................. 291

339........ Exclusive jurisdiction...................................................................... 291

339A..... Exercising jurisdiction in the Fair Work Division of the Federal Court 291

340........ Exercise of Court’s original jurisdiction.......................................... 292

341........ Reference of proceedings to Full Court.......................................... 293

342........ Appeal to the Court from certain judgments.................................. 293

Part 6—Other                                                                                                                        295

343........ Delegation by Minister................................................................... 295

343A..... Delegation by General Manager to staff......................................... 295

344........ Conduct by officers, directors, employees or agents..................... 296

345........ Right to participate in ballots......................................................... 297

346........ Requests by members for information concerning elections and certain ballots      297

347........ Providing copy of rules or list of offices etc. on request by member 297

348........ Certificate as to membership of organisation................................. 299

349........ List of officers to be evidence......................................................... 299

350........ Unauthorised collection of money.................................................. 299

351........ No imprisonment in default............................................................ 299

351A..... Minister’s entitlement to intervene................................................ 299

352........ Jurisdiction of courts limited as to area.......................................... 300

353........ Public sector employer to act through employing authority.......... 300

353A..... Representation in proceedings in the Fair Work Division of the Federal Court and Federal Magistrates Court    301

354........ Proceedings by and against unincorporated clubs.......................... 301

355........ Inspection of documents etc........................................................... 302

356........ Trade secrets etc. tendered as evidence.......................................... 302

357........ Application of penalty................................................................... 303

358........ Enforcement of penalties etc.......................................................... 303

359........ Regulations..................................................................................... 303

Part 7—Complementary registration systems                                                   306

Division 1—Application of this Part                                                                  306

360........ Complementary registration systems............................................. 306

Division 2—Preliminary                                                                                          307

361........ Definitions...................................................................................... 307

Division 3—Branch rules                                                                                       308

362........ Branch funds................................................................................... 308

363........ Obligations of FWA in relation to application under section 158.. 309

364........ Branch autonomy........................................................................... 309

365........ Organisation may participate in State systems.............................. 309

Division 4—Amalgamation of organisation and associated body      311

366........ Organisation and associated body may amalgamate....................... 311

367........ Procedure for amalgamation............................................................ 311

Division 5—Exercise of FWA’s powers                                                         314

368........ Exercise of FWA’s powers under this Part.................................... 314

Schedule 1—Transitionally recognised associations                                      315

1............ Definitions...................................................................................... 315

2............ Application for transitional recognition......................................... 316

3............ Application of the Fair Work Act to transitionally recognised associations           317

4............ Representation rights of transitionally recognised associations of employees [see Note 2]   318

5............ Cancellation of transitional recognition.......................................... 318

6............ End of transitional recognition........................................................ 321

7............ Modification of this Act................................................................. 322

Schedule 2—Recognised State‑registered associations                               323

1............ Recognition of State‑registered associations................................... 323

2............ Application of Fair Work Act to recognised State‑registered associations             324

3............ Cancellation of recognition............................................................. 324

Notes                                                                                                                                          329

An Act relating to registered organisations, and for other purposes

Chapter 1—Preliminary

  

1  Short title [see Note 1]

                   This Act may be cited as the Fair Work (Registered Organisations) Act 2009.

2  Commencement [see Note 1]

                   This Act commences on a day or days to be fixed by Proclamation.

5  Parliament’s intention in enacting this Act

             (1)  It is Parliament’s intention in enacting this Act to enhance relations within workplaces between federal system employers and federal system employees and to reduce the adverse effects of industrial disputation.

             (2)  Parliament considers that those relations will be enhanced and those adverse effects will be reduced, if associations of employers and employees are required to meet the standards set out in this Act in order to gain the rights and privileges accorded to associations under this Act and the Fair Work Act.

             (3)  The standards set out in this Act:

                     (a)  ensure that employer and employee 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; and

                     (e)  facilitate the registration of a diverse range of employer and employee organisations.

             (4)  It is also Parliament’s intention in enacting this Act to assist employers and employees to promote and protect their economic and social interests through the formation of employer and employee organisations, by providing for the registration of those associations and according rights and privileges to them once registered.

Note:          The Fair Work Act contains many provisions that affect the operation of this Act. For example, provisions of the Fair Work Act deal with some powers and functions of FWA and of the General Manager. Decisions made under this Act may be subject to procedures and rules (for example, about appeals) that are set out in the Fair Work Act.

5A  Act binds Crown

             (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.

5B  Schedule 1 has effect

                   Schedule 1 has effect.

Note:          Schedule 1 is about transitionally recognised associations.

5C  Schedule 2 has effect

                   Schedule 2 has effect.

Note:          Schedule 2 is about recognised State‑registered associations.

6  Definitions

                   In this Act, unless the contrary intention appears:

AEC means the Australian Electoral Commission.

Note:          Section 11 is also relevant to this definition.

applies:

                     (a)  in relation to a modern award, has the same meaning as in section 47 of the Fair Work Act; and

                     (b)  in relation to an enterprise agreement, has the same meaning as in section 52 of the Fair Work Act.

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.

Australian Building and Construction Commissioner has the same meaning as in the Building and Construction Industry Improvement Act 2005.

Australian Building and Construction Inspector has the same meaning as in the Building and Construction Industry Improvement Act 2005.

breach includes non‑observance.

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.

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.

covers:

                     (a)  in relation to a modern award, has the same meaning as in section 48 of the Fair Work Act; and

                     (b)  in relation to an enterprise agreement, has the same meaning as in section 53 of the Fair Work Act.

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 Fair Work Act of the industrial interests of employees by an organisation of employees.

Deputy President means a Deputy President of FWA.

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 has its ordinary meaning, and includes a person who is usually such an employee, but does not include a person on a vocational placement.

employer has its ordinary meaning, and includes:

                     (a)  a person who is usually such 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.

enterprise means:

                     (a)  a business that is carried on by a single employer; or

                     (b)  a business that is carried on by related bodies corporate, at least one of which is an employer; or

                     (c)  an operationally distinct part of a business mentioned in paragraph (a) or (b); or

                     (d)  a grouping of 2 or more operationally distinct parts of a business mentioned in paragraph (a) or (b).

Whether bodies corporate are related is to be determined in accordance with the principles set out in section 50 of the Corporations Act 2001.

enterprise agreement has the same meaning as in the Fair Work Act.

enterprise association has the meaning given by subsection 18C(1).

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.

Fair Work Act means the Fair Work Act 2009 and includes regulations made under that Act.

federal counterpart has the meaning given by section 9A.

Federal Court means the Federal Court of Australia.

federally registrable:

                     (a)  in relation to an association of employers—has the meaning given by section 18A; and

                     (b)  in relation to an association of employees—has the meaning given by section 18B; and

                     (c)  in relation to an enterprise association—has the meaning given by section 18C.

federal system employee means:

                     (a)  a national system employee within the meaning of section 13 of the Fair Work Act; or

                     (c)  an independent contractor who, if he or she were an employee performing work of the kind which he or she usually performs as an independent contractor, would be an employee who could be characterised in the way mentioned in paragraph (a).

federal system employer means a national system employer within the meaning of section 14 of the Fair Work Act.

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 has the same meaning as in the Fair Work Act.

FWA means the body established by section 575 of the Fair Work Act.

FWA Member has the same meaning as in the Fair Work Act, but does not include a Minimum Wage Panel Member (within the meaning of that Act).

General Manager means the General Manager of FWA.

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 same meaning as in the Fair Work 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 section 190.

modern award has the same meaning as in the Fair Work Act.

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).

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 1996 immediately before former Schedule 1B of that Act commenced are taken to be registered under that Schedule (and therefore under this Act) (see the Workplace Relations Legislation Amendment (Registration and Accountability of Organisations) (Consequential Provisions) Act 2002).

peak council has the same meaning as in the Fair Work Act.

postal ballot means a ballot for the purposes of which:

                     (a)  a ballot paper, a declaration envelope, and another envelope in the form prescribed by the regulations, 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 procedural rules of FWA made under section 609 of the Fair Work Act.

President means the President of FWA.

protected industrial action has the same meaning as in the Fair Work Act.

public sector employment has the same meaning as in the Fair Work Act.

recognised State‑registered association means a State‑registered association that is recognised under Schedule 2.

reporting guidelines mean the guidelines issued under section 255.

reporting unit has the meaning given by section 242.

State award means an award, order, decision or determination of a State industrial authority.

State demarcation order means a State award, to the extent that it relates to the rights of a State‑registered association to represent the interests under a State or Territory industrial law of a particular class or group of employees.

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.

State or Territory industrial law has the same meaning as in the Fair Work Act.

State‑registered association has the meaning given by clause 1 of Schedule 1.

superannuation entity has the same meaning as in the Superannuation Industry (Supervision) Act 1993.

this Act includes regulations made under this Act.

transitionally recognised association means a State‑registered association that is recognised under Schedule 1.

vocational placement has the same meaning as in the Fair Work Act.

workplace group means a class or group of employees, all of whom perform work:

                     (a)  for the same employer; or

                     (b)  at the same premises or workplace; or

                     (c)  for the same employer and at the same premises or workplace.

9  Meaning of office

             (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.

9A  Meaning of federal counterpart

             (1)  For the purposes of this Act, a federal counterpart for a particular association of employers or employees registered under a State or Territory industrial law is an organisation prescribed by the regulations to be a federal counterpart of that association.

             (2)  For the purposes of this Act, if subsection (1) does not apply in relation to a particular association of employers or employees registered under a State or Territory industrial law, a federal counterpart for the association is:

                     (a)  an organisation that has a branch (including a division of such a branch or a constituent part of such a branch) in that State or Territory that has or purports to have:

                              (i)  substantially the same eligibility rules as the association; and

                             (ii)  a history of integrated operation with the association; or

                     (b)  if paragraph (a) does not apply—an organisation of which the association has purported to function as a branch (including a division of a branch or a constituent part of a branch).

10  Forging and uttering

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.

11  Actions and opinions of AEC

             (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.

12  Membership of organisations

                   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).

13  Functions of FWA

             (1)  The functions of FWA 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 FWA are set out in section 576 of the Fair Work Act.

             (2)  Subject to this Act, the register of organisations is to be kept in whatever form the General Manager considers appropriate.

15  Disapplication of Part 2.5 of Criminal Code

                   Part 2.5 of the Criminal Code does not apply to offences against this Act.

Note 1:       Section 6 defines this Act to include the regulations.

Note 2:       For the purposes of this Act (and the regulations), corporate responsibility is dealt with by section 344, rather than by Part 2.5 of the Criminal Code.

16  Operation of offence provisions

                   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.

 

Chapter 2—Registration and cancellation of registration

Part 1—Simplified outline of Chapter

  

17  Simplified outline

 

Part 2—Registration

Division 1—Types of associations that may apply for registration

18  Employer and employee associations may apply

                   Any of the following associations may apply for registration as an organisation:

                     (a)  a federally registrable association of employers;

                     (b)  a federally registrable association of employees;

                     (c)  a federally registrable enterprise association.

18A  Federally registrable employer associations

             (1)  An association of employers is federally registrable if:

                     (a)  it is a constitutional corporation; or

                     (b)  some or all of its members are federal system employers.

             (3)  An association of employers is not federally registrable if it has a member who is not one of the following:

                     (a)  an employer;

                     (b)  a person who was an employer when admitted to membership, but who has not resigned or whose membership has not been terminated;

                     (c)  a person (other than an employee) who carries on business;

                     (d)  an officer of the association.

             (4)  An association of employers is not federally registrable if:

                     (a)  it is only a body corporate because it is or has been registered under this Act (whether before or after the commencement of this subsection); and

                     (b)  it is not the case that some or all of the association’s members are federal system employers.

18B  Federally registrable employee associations

             (1)  An association of employees is federally registrable if:

                     (a)  it is a constitutional corporation; or

                     (b)  some or all of its members are federal system employees.

             (3)  An association of employees is not federally registrable if it has a member who is not one of the following:

                     (a)  an employee;

                     (b)  a person specified in subsection (4);

                     (c)  an independent contractor who, if he or she were an employee performing work of the kind which he or she usually performs as an independent contractor, would be an employee eligible for membership of the association;

                     (d)  an officer of the association.

             (4)  The persons specified for the purpose of paragraph (3)(b) are persons (other than employees) who:

                     (a)  are, or are able to become, members of an industrial organisation of employees within the meaning of the Industrial Relations Act 1996 of New South Wales; or

                     (b)  are employees for the purposes of the Industrial Relations Act 1999 of Queensland; or

                     (c)  are employees for the purposes of the Industrial Relations Act 1979 of Western Australia; or

                     (d)  are employees for the purposes of the Industrial and Employee Relations Act 1994 of South Australia.

             (5)  An association of employees is not federally registrable if:

                     (a)  it is only a body corporate because it is or has been registered under this Act (whether before or after the commencement of this subsection); and

                     (b)  it is not the case that some or all of the association’s members are federal system employees.

18C  Federally registrable enterprise associations

             (1)  An enterprise association is an association the majority of the members of which are employees performing work in the same enterprise.

             (2)  An enterprise association is federally registrable if:

                     (a)  it is a constitutional corporation; or

                     (b)  some or all of its members are federal system employees; or

                     (c)  the employer or employers in relation to the relevant enterprise are constitutional corporations; or

                     (d)  the relevant enterprise operates principally within or from a Territory; or

                     (e)  the relevant enterprise is engaged principally in trade or commerce between Australia and a place outside Australia; or

                      (f)  the relevant enterprise is engaged principally in trade or commerce among the States; or

                     (g)  the relevant enterprise is engaged principally in trade or commerce within a Territory, between a State and a Territory or between 2 Territories; or

                     (h)  the relevant enterprise is engaged principally in the supply of postal, telegraphic, telephonic or other like services; or

                      (i)  the relevant enterprise is engaged principally in banking (other than State banking not extending beyond the limits of a State); or

                      (j)  the relevant enterprise is engaged principally in insurance (other than State insurance not extending beyond the limits of a State); or

                     (k)  the relevant enterprise is in Victoria, and the provisions of this Act that would apply to the association (both before and after registration), fall within the legislative power referred to the Commonwealth under the Commonwealth Powers (Industrial Relations) Act 1996 of Victoria.

             (3)  An enterprise association is not federally registrable if it has a member who is not one of the following:

                     (a)  an employee performing work in the relevant enterprise;

                     (b)  a person specified in subsection (4) performing work in the enterprise;

                     (c)  an independent contractor performing work in the relevant enterprise who, if he or she were an employee performing work of the kind which he or she usually performs as an independent contractor, would be:

                              (i)  an employee who could be characterised in the way mentioned in paragraph (a) of the definition of federal system employee in section 6; and

                             (ii)  an employee who would be eligible for membership of the association;

                     (d)  an officer of the association.

             (4)  The persons specified for the purpose of paragraph (3)(b) are persons (other than employees) who:

                     (a)  are, or are able to become, members of an industrial organisation of employees within the meaning of the Industrial Relations Act 1996 of New South Wales; or

                     (b)  are employees for the purposes of the Industrial Relations Act 1999 of Queensland; or

                     (c)  are employees for the purposes of the Industrial Relations Act 1979 of Western Australia; or

                     (d)  are employees for the purposes of the Industrial and Employee Relations Act 1994 of South Australia.

             (5)  An enterprise association is not federally registrable if:

                     (a)  it is only a body corporate because it is or has been registered under this Act (whether before or after the commencement of this subsection); and

                     (b)  it does not satisfy paragraphs (b) to (k) of subsection (2).

18D  Constitutional validity

Associations of employers

             (1)  If the Parliament would not have sufficient legislative power to provide for the registration of a particular association of employers if:

                     (a)  a particular class of employers mentioned in paragraphs (a) to (f) of the definition of national system employer in section 14 of the Fair Work Act were included when working out whether some or all of the association’s members are federal system employers;

that definition applies as if it did not include a reference to that class of employers.

             (2)  If the Parliament would only have sufficient legislative power to provide for the registration of a particular association of employers if the membership of the association were entirely made up of one or more of the following:

                     (a)  federal system employers;

                     (b)  persons (other than employees) who carry on business and who would, if they were employers, be federal system employers;

                     (c)  officers of the association;

then, despite subsection 18A(1), the association is not federally registrable unless it is either a constitutional corporation or made up in that way.

Associations of employees

             (3)  If the Parliament would not have sufficient legislative power to provide for the registration of an association of employees if:

                     (a)  a particular class of individuals so far as they are employed, or usually employed, as described in paragraph (a), (b), (c), (d), (e) or (f) of the definition of national system employer in section 14 of the Fair Work Act, by a federal system employer were included when working out whether some or all of the association’s members are federal system employees;

the definition of federal system employee in section 6 applies as if it did not include a reference to that class of employees.

          (3A)  If the Parliament would not have sufficient legislative power to provide for the registration of an association of employees if:

                     (a)  a particular class of individuals mentioned in paragraph (c) of the definition of federal system employee in section 6 were included in working out whether some or all of the association’s members are federal system employees;

that definition applies as if it did not include a reference to that class of employees.

             (4)  If the Parliament would only have sufficient legislative power to provide for the registration of a particular association of employees if the membership of the association were entirely made up of one or more of the following:

                     (a)  federal system employees;

                     (b)  persons specified in subsection 18B(4);

                     (c)  officers of the association;

then, despite subsection 18B(1), the association is not federally registrable unless it is either a constitutional corporation or made up in that way.

Enterprise associations

             (5)  If the Parliament would only have sufficient legislative power to provide for the registration of an enterprise association if the membership of the association were entirely made up of one or more of the following:

                     (a)  federal system employees performing work in the relevant enterprise;

                     (b)  persons specified in subsection 18C(4);

                     (c)  officers of the association;

then, despite subsection 18C(2), the association is not federally registrable unless it is either a constitutional corporation or made up in that way.

 

Division 2—Registration criteria

19  Criteria for registration of associations other than enterprise associations

             (1)  FWA 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 paragraph 18(a) or (b); 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)  FWA is satisfied that the association would conduct its affairs in a way that meets the obligations of an organisation under this Act and the Fair Work 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 Parliament’s intention in enacting this Act (see section 5) and the object set out in section 3 of the Fair Work 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 FWA accepts an undertaking from the association that FWA 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 FWA may take into account in considering, under subparagraph (1)(j)(ii), the effectiveness of the representation of an organisation or association, FWA must take into account whether the representation would be consistent with Parliament’s intention in enacting this Act (see section 5) and the object set out in section 3 of the Fair Work Act.

             (4)  In applying paragraph (1)(e), FWA 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.

             (5)  FWA must not, under this section, grant an application for registration of an association of employers or employees registered under a State or Territory industrial law if the association has a federal counterpart.

20  Criteria for registration of enterprise associations

             (1)  FWA 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 paragraph 18(c); 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 20 members who are employees; and

                     (d)  FWA is satisfied that the association would conduct its affairs in a way that meets the obligations of an organisation under this Act and the Fair Work 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)  FWA 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 Parliament’s intention in enacting this Act (see section 5) and the object set out in section 3 of the Fair Work Act.

          (1A)  For the purposes of paragraph (1)(b), if a person or body has an interest in the enterprise in question, FWA may decide that, despite the interest, the association is free from control by, or improper influence from, the person or body.

Note:          FWA could conclude that the association was free from control etc. by the person if, for example, the nature of the person’s interest was not such as to give the person a major say in the conduct of the enterprise or if the person did not have a significant management role in the association.

             (2)  In applying paragraph (1)(d), FWA 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.

 

Division 3—Prohibited conduct in relation to formation or registration of employee associations

21  Prohibited conduct—employers

             (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(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(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 FWA 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.

22  Prohibited conduct—organisations

             (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(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).

23  Powers of Federal Court in relation to prohibited conduct

             (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.

24  Certain actions considered to be done by organisation or employer

             (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.

 

Division 4—Registration process

25  Applicant for registration may change its name or alter its rules

             (1)  FWA 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 FWA 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 FWA; 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 Fair Work Act (see paragraph 142(1)(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.

26  Registration

             (1)  When FWA grants an application by an association for registration as an organisation, the General Manager 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 General Manager enters the prescribed particulars in the register under subsection (1).

             (3)  On registration, an association becomes an organisation.

             (4)  The General Manager 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 1996 continue in force (see the Workplace Relations Legislation Amendment (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 General Manager 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.

26A  Validation of registration

                   If:

                     (a)  an association was purportedly registered as an organisation under this Act before the commencement of this section; and

                     (b)  the association’s purported registration would, but for this section, have been invalid merely because, at any time, the association’s rules did not have the effect of terminating the membership of, or precluding from membership, persons who were persons of a particular kind or kinds;

that registration is taken, for all purposes, to be valid and to have always been valid.

27  Incorporation

                   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.

 

Part 3—Cancellation of registration

  

28  Application for cancellation of registration

             (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 a modern award, an order of FWA or an enterprise agreement, or its continued failure to ensure that its members comply with and observe a modern award, an order of FWA or an enterprise agreement, or in any other respect); or

                             (ii)  a substantial number of the members of the organisation (in relation to their continued breach of a modern award, an order of FWA or an enterprise agreement, or in any other respect);

                            has prevented or hindered the achievement of Parliament’s intention in enacting this Act (see section 5) or of an object of this Act or the Fair Work 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 (other than protected industrial action) that has prevented, hindered or interfered with:

                              (i)  the activities of a federal system employer; or

                             (ii)  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 (other than protected 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:

                              (i)  an injunction granted under subsection 421(3) of the Fair Work Act (which deals with orders to stop industrial action); or

                             (ii)  an order made under the Fair Work Act in relation to a contravention of Part 3‑1 of that Act (which deals with general protections); or

                            (iv)  an interim injunction granted under section 545 of the Fair Work Act so far as it relates to conduct or proposed conduct that could be the subject of an injunction or order under a provision of the Fair Work Act mentioned in subparagraphs (i) to (iii); or

                             (v)  an order made under section 23 (which deals with contraventions of the employee associations provisions); or

                            (vi)  an order made under subsection 131(2) (which deals with contraventions of the withdrawal from amalgamation provisions).

          (1A)  The General Manager may apply to the Federal Court for an order cancelling the registration of an organisation on the ground that the organisation has failed to comply with an order of the Federal Court made under subsection 336(5) in relation to the organisation.

Note:          Section 336 deals with the situation where the General Manager is satisfied, after an investigation, that a reporting unit of an organisation has contravened Part 3 of Chapter 8, or guidelines or rules relating to financial matters.

             (2)  An organisation in relation to which an application is made under subsection (1) or (1A) 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 in proceedings:

                     (a)  under section 23 or subsection 131(2) of this Act; or

                     (b)  under Division 4 of Part 3‑3 or Part 4‑1 of the Fair Work Act; or

                     (c)  under the Fair Work Act in relation to a contravention of Part 3‑1 of that Act;

is admissible as prima facie evidence of that fact in an application made on a ground specified in paragraph (1)(d).

29  Orders where cancellation of registration deferred

             (1)  If the Federal Court finds that a ground of an application under subsection 28(1) or (1A) 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, the Fair Work Act or any other Act, under modern awards or orders made under this Act, the Fair Work Act or any other Act or under enterprise 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.

30  Cancellation of registration on technical grounds etc.

             (1)  FWA 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 FWA 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 FWA’s own motion, if:

                              (i)  FWA has satisfied itself, as prescribed, that the organisation is defunct; or

                             (ii)  the organisation is an organisation of employees, other than an enterprise association, and has fewer than 50 members who are employees; or

                            (iii)  the organisation is an enterprise association and has fewer than 20 members who are employees; or

                            (iv)  the organisation is an organisation of employers and the members who are employers have, in the aggregate, throughout the 6 months before the application, not employed on an average taken per month at least 50 employees; or

                             (v)  the organisation is not, or is no longer, a federally registrable association.

             (2)  Before FWA 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);

FWA must give the organisation an opportunity to be heard.

             (3)  FWA may also cancel the registration of an organisation if:

                     (a)  FWA is satisfied that the organisation has breached an undertaking referred to in subsection 19(2); and

                     (b)  FWA 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 FWA’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)  FWA is satisfied that the organisation still meets the requirements of subsection 20(1).

FWA must give the organisation a reasonable opportunity to alter its rules as provided in paragraph (b) before FWA considers cancelling the registration of the organisation on the ground referred to in subparagraph (1)(b)(iv).

31  Cancellation to be recorded

                   If the registration of an organisation under this Act is cancelled, the General Manager must enter the cancellation, and the date of cancellation, in the register kept under paragraph 13(1)(a).

32  Consequences of cancellation of registration

                   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 modern award, order of FWA or enterprise agreement that bound the organisation or its members;

                     (d)  FWA may, on application by an organisation or person interested, make such order as FWA 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.

 

Part 4—FWA’s powers under this Chapter

  

33  Powers exercisable by President or a Deputy President

                   The powers of FWA under this Chapter are exercisable only by the President or a Deputy President.

 

Chapter 3—Amalgamation and withdrawal from amalgamation

Part 1—Simplified outline of Chapter

  

34  Simplified outline

 

Part 2—Amalgamation of organisations

Division 1—General

35  Definitions

                   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.

36  Procedure to be followed for proposed amalgamation etc.

             (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 FWA 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, FWA 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, FWA 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 procedural rules of FWA made under section 609 of the Fair Work Act; or

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

37  Exercise of FWA’s powers under this Part

                   The powers of FWA under this Part are exercisable only by the President or a Deputy President.

 

Division 2—Preliminary matters

38  Federations

Application for recognition as federation

             (1)  The existing organisations concerned in a proposed amalgamation may jointly lodge with FWA 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 FWA is satisfied that the organisations intend to lodge an application under section 44 in relation to the amalgamation within the prescribed period, FWA must grant the application for recognition as a federation.

Registration of federation

             (4)  If the application is granted, the General Manager 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 Fair Work Act.

             (6)  Subsection (5) does not have the effect that a modern award or enterprise agreement covers the federation.

Federation may vary its composition

             (7)  After the federation is registered, it may vary its composition by:

                     (a)  including, with the approval of FWA, another organisation within the federation if the other organisation intends to become concerned in the amalgamation; or

                     (b)  releasing, with the approval of FWA, 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 Parliament’s intention in enacting this Act (see section 5) or an object of this Act or the Fair Work 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.

39  Use of resources to support proposed amalgamation

             (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.

 

Division 3—Commencement of amalgamation procedure

40  Scheme for 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.

41  Alternative scheme for amalgamation

             (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.

42  Approval by committee of management

             (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.

43  Community of interest declaration

Existing organisations may apply for declaration

             (1)  The existing organisations concerned in a proposed amalgamation may jointly lodge with FWA 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, FWA:

                     (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, FWA is satisfied that there is a community of interest between the existing organisations in relation to their industrial interests, FWA must declare that it is so satisfied.

Pre‑conditions to making of declaration

             (5)  FWA 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 FWA 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)  covered by the same modern 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)  FWA 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 FWA 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)  covered by the same modern 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 FWA 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)  FWA may revoke a declaration under this section if FWA is satisfied that there is no longer a community of interest between the organisations concerned in relation to their industrial interests.

           (10)  However, before FWA 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.

44  Application for approval for submission of amalgamation to ballot

             (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 with FWA 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.

45  Holding office after amalgamation

             (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.

46  Application for exemption from ballot

             (1)  The proposed amalgamated organisation under a proposed amalgamation may lodge with FWA 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.

47  Application for ballot not conducted under section 65

             (1)  An existing organisation concerned in a proposed amalgamation may lodge with FWA 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.

48  Lodging “yes” case

             (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.

 

Division 4—Role of AEC

49  Ballots to be conducted by AEC

                   All ballots under this Part are to be conducted by the AEC.

50  Notification of AEC

             (1)  Where an application is lodged under section 44 in relation to a proposed amalgamation, the General Manager 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.

51  Providing information etc. to electoral officials

             (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.

52  Declaration by secretary etc. of organisation

             (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 with FWA, 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).

 

Division 5—Procedure for approval of amalgamation

53  Fixing hearing in relation to amalgamation etc.

                   Where an application is lodged under section 44 in relation to a proposed amalgamation, FWA:

                     (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.

54  Submissions at amalgamation hearings

             (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 FWA and may be made by the person only in relation to a prescribed matter.

55  Approval for submission to ballot of amalgamation not involving extension of eligibility rules etc.

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, FWA 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 Fair Work Act, modern awards or enterprise 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;

FWA must approve the submission of the amalgamation to ballot.

Approval generally refused if conditions not satisfied

             (2)  If FWA is not satisfied, FWA 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, FWA would be required to refuse to approve the submission of the amalgamation to ballot, FWA 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 FWA is satisfied that the matters mentioned in subsection (1) will be met, FWA 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 FWA if conditions or undertakings breached

             (5)  If:

                     (a)  FWA:

                              (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 FWA;

FWA 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 FWA has apart from that subsection.

Powers of FWA to adjourn proceeding

             (7)  If, apart from this subsection, FWA would be required to refuse to approve the submission of the amalgamation to ballot, FWA may adjourn the proceeding.

             (8)  Subsection (7) does not limit by implication the power of FWA to adjourn the proceeding at any stage.

56  Objections in relation to amalgamation involving extension of eligibility rules etc.

             (1)  Objection to a matter involved in a proposed amalgamation may only be made to FWA under this section.

             (2)  Objection may be made to FWA in relation to the amalgamation only if FWA 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)  FWA is to hear, as prescribed, all objections duly made to the amalgamation.

57  Approval for submission to ballot of amalgamation involving extension of eligibility rules etc.

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, FWA:

                     (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 Fair Work Act, modern awards and enterprise agreements and is not otherwise contrary to law;

FWA must approve the submission of the amalgamation to ballot.

Approval generally refused if conditions not satisfied

             (2)  If FWA is not satisfied, FWA 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, FWA would be required to refuse to approve the submission of the amalgamation to ballot, FWA 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 FWA is satisfied that the matters mentioned in subsection (1) will be met, FWA 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 FWA if conditions or undertakings breached

             (6)  If:

                     (a)  FWA:

                              (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 FWA;

FWA 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 FWA has apart from that subsection.

Powers of FWA to adjourn proceeding

             (8)  If, apart from this subsection, FWA would be required to refuse to approve the submission of the amalgamation to ballot, FWA may adjourn the proceeding.

             (9)  Subsection (8) does not limit by implication the power of FWA to adjourn the proceeding at any stage.

58  Fixing commencing and closing days of ballot

             (1)  If FWA approves, under section 55 or 57, the submission of a proposed amalgamation to ballot, FWA 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)  FWA 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 FWA 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)  FWA 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.

59  Roll of voters for ballot

                   The roll of voters for a ballot for a proposed amalgamation is the roll of persons who, on the day on which FWA 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.

60  “Yes” case and “no” case for amalgamation

“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, FWA 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 with FWA 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)  FWA 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 with FWA under subsection (2):

                     (a)  FWA 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 FWA must accompany the ballot paper for the amalgamation as if it had been the sole statement lodged under subsection (2).

FWA may correct factual errors in statements

             (6)  FWA 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 FWA approves

             (7)  A statement mentioned in subsection (1) or (2) may, if FWA 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.

61  Alteration and amendment of scheme

Permission to alter amalgamation scheme

             (1)  FWA 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 FWA if conditions breached

             (4)  If:

                     (a)  FWA gives a permission under subsection (1) subject to conditions; and

                     (b)  the conditions are breached;

FWA 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 FWA 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.

62  Outline of scheme for amalgamation

             (1)  The outline of the scheme for a proposed amalgamation may, if FWA approves, consist of more than 3,000 words.

             (2)  The outline may, if FWA approves, include matter that is not in the form of words, including, for example, diagrams, drawings, illustrations, photographs and symbols.

             (3)  FWA:

                     (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.

63  Exemption from ballot

             (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;

FWA must, at the conclusion of the hearing arranged under section 53 in relation to the amalgamation, grant the exemption unless FWA 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).

64  Approval for ballot not conducted under section 65

                   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)  FWA 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;

FWA must, at the conclusion of the hearing arranged under section 53 in relation to the amalgamation, approve the proposal.

65  Secret postal ballot of members

Ballot on proposed principal amalgamation

             (1)  If FWA 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 time and in the same way as the ballot under subsection (1), a ballot of the members of each of the existing organisations on the question or questions whether, if the proposed principal amalgamation does not take place, they approve the proposed alternative amalgamation or each proposed alternative amalgamation.

Same ballot paper to be used for both ballots

             (3)  If, under subsection (2), the AEC is required to conduct 2 or more ballots of the members of an organisation at the same time, the same ballot paper is to be used for both or all the ballots.

Counting of votes in alternative amalgamation ballot

             (4)  A person conducting a ballot under subsection (2) need not count the votes in the ballot if the person is satisfied that the result of the ballot will not be required to be known for the purposes of this Act.

Copy of outline to be sent to voters

             (5)  A copy of the outline of the scheme for the amalgamation as lodged under this Part, or, if the scheme has been altered or amended, a copy of the outline of the scheme as altered or amended, is to accompany the ballot paper sent to a person entitled to vote at the ballot.

Conduct of ballot

             (6)  In a ballot conducted under this section, each completed ballot paper must be returned to the AEC as follows:

                     (a)  the ballot paper must be in the declaration envelope provided to the voter with the ballot paper;

                     (b)  the declaration envelope must be in another envelope that is in the form prescribed by the regulations.

             (8)  Subject to this section, a ballot conducted under this section is to be conducted as prescribed.

Organisation may be exempt from requirements of this section

             (9)  This section does not apply to an existing organisation concerned in the amalgamation if:

                     (a)  FWA has granted the organisation an exemption under section 63 from the requirement that a ballot be held in relation to the proposed amalgamation; or

                     (b)  FWA has approved under section 64 a proposal by the organisation for the submission of the amalgamation to a ballot that is not conducted under this section.

66  Determination of approval of amalgamation by members

                   Where the question of a proposed amalgamation is submitted to a ballot of the members of an existing organisation concerned in the amalgamation, the members of the organisation approve the amalgamation if, and only if:

                     (a)  where a declaration under section 43 is in force in relation to the proposed amalgamation—more than 50% of the formal votes cast in the ballot are in favour of the amalgamation; or

                     (b)  in any other case:

                              (i)  at least 25% of the members on the roll of voters cast a vote in the ballot; and

                             (ii)  more than 50% of the formal votes cast are in favour of the amalgamation.

67  Further ballot if amalgamation not approved

             (1)  If:

                     (a)  the question of a proposed amalgamation is submitted to a ballot of the members of an existing organisation; and

                     (b)  the members of the organisation do not approve the amalgamation;

the existing organisations concerned in the amalgamation may jointly lodge with FWA a further application under section 44 for approval for the submission of the amalgamation to ballot.

             (2)  If the application is lodged within 12 months after the result of the ballot is declared, FWA may order:

                     (a)  that any step in the procedure provided by this Part be dispensed with in relation to the proposed amalgamation; or

                     (b)  that a fresh ballot be conducted in place of an earlier ballot in the amalgamation;

and FWA may give such directions and make such further orders as FWA considers necessary or desirable.

             (3)  Subsection (2) does not by implication require a further application under section 44 to be lodged within the 12 month period mentioned in that subsection.

68  Post‑ballot report by AEC

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

                     (a)  the Federal Court; and

                     (b)  the General Manager; and

                     (c)  each applicant under section 44.

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

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

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

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

this fact must be included in the report.

             (4)  Subsection (3) applies only in relation to postal ballots.

69  Inquiries into irregularities

             (1)  Not later than 30 days after the result of a ballot under this Part is declared, application may be made to the Federal Court, as prescribed, for an inquiry by the Court into alleged irregularities in relation to the ballot.

             (2)  If the Court finds that there has been an irregularity that may affect, or may have affected, the result of the ballot, the Court may:

                     (a)  if the ballot has not been completed—order that a step in relation to the ballot be taken again; or

                     (b)  in any other case—order that a fresh ballot be conducted in place of the ballot in which the irregularity happened;

and may make such further orders as it considers necessary or desirable.

             (3)  The regulations may make provision with respect to the procedure for inquiries by the Court into alleged irregularities in relation to ballots under this Part, and for matters relating to, or arising out of, inquiries.

70  Approval of amalgamation

             (1)  If the members of each of the existing organisations concerned in a proposed amalgamation approve the proposed principal amalgamation, the proposed principal amalgamation is approved for the purposes of this Part.

             (2)  If:

                     (a)  the scheme for a proposed amalgamation contains an alternative provision; and

                     (b)  the members of one or more of the existing organisations concerned in the amalgamation do not approve the proposed principal amalgamation; and

                     (c)  the members of 2 or more of the organisations (in paragraph (d) called the approving organisations) approve a proposed alternative amalgamation; and

                     (d)  where one of the existing organisations is the proposed amalgamated organisation—that organisation is one of the approving organisations;

the proposed alternative amalgamation is approved for the purposes of this Part.

71  Expenses of ballot

                   The expenses of a ballot under this Part are to be borne by the Commonwealth.

72  Offences in relation to ballot

Interference with ballot papers

             (1)  A person commits an offence in relation to a ballot if the person:

                     (a)  impersonates another person with the intention of:

                              (i)  securing a ballot paper to which the impersonator is not entitled; or

                             (ii)  casting a vote; or

                     (b)  does an act that results in a ballot paper or envelope being destroyed, defaced, altered, taken or otherwise interfered with; or

                     (c)  fraudulently puts a ballot paper or other paper:

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

                             (ii)  into the post; or

                     (d)  delivers a ballot paper or other paper to a person other than a person receiving ballot papers for the purposes of the ballot; or

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

                      (f)  records more than one vote; or

                     (g)  forges a ballot paper or envelope, or utters a ballot paper or envelope that the person knows to be forged; or

                     (h)  provides a ballot paper without authority; or

                      (i)  obtains a ballot paper which the person is not entitled to obtain; or

                      (j)  has possession of a ballot paper which the person is not entitled to possess; or

                     (k)  does an act that results in a ballot box or other ballot receptacle being destroyed, taken, opened or otherwise interfered with.

Maximum penalty:    30 penalty units.

Hindering the ballot, threats and bribes etc.

             (2)  A person commits an offence in relation to a ballot if the person:

                     (a)  hinders or obstructs the taking of the ballot; or

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

                     (c)  threatens, offers or suggests, or uses, causes or inflicts, any violence, injury, punishment, damage, loss or disadvantage with the intention of influencing or affecting:

                              (i)  any vote or omission to vote; or

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

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

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

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

                      (f)  counsels or advises a person entitled to vote to refrain from voting.

Maximum penalty:    30 penalty units.

Secrecy of vote

             (3)  A person (the relevant person) commits an offence in relation to a ballot if:

                     (a)  the relevant person requests, requires or induces another person:

                              (i)  to show a ballot paper to the relevant person; or

                             (ii)  to permit the relevant person to see a ballot paper;

                            in such a manner that the relevant person can see the vote while the ballot paper is being marked or after it has been marked; or

                     (b)  in the case where the relevant person is a person performing duties for the purposes of the ballot—the relevant person shows another person, or permits another person to have access to, a ballot paper used in the ballot, otherwise than in the performance of the duties.

Maximum penalty:    30 penalty units.

 

Division 6—Amalgamation taking effect

73  Action to be taken after ballot

             (1)  The scheme of a proposed amalgamation that is approved for the purposes of this Part takes effect in accordance with this section.

             (2)  If FWA is satisfied that:

                     (a)  the period, or the latest of the periods, within which application may be made to the Federal Court under section 69 in relation to the amalgamation has ended; and

                     (b)  any application to the Federal Court under section 69 has been disposed of, and the result of any fresh ballot ordered by the Court has been declared; and

                     (c)  there are no proceedings (other than civil proceedings) pending against any of the existing organisations concerned in the amalgamation in relation to:

                              (i)  contraventions of this Act, the Fair Work Act or other Commonwealth laws; or

                             (ii)  breaches of modern awards or enterprise agreements; or

                            (iii)  breaches of orders made under this Act, the Fair Work Act or other Commonwealth laws; and

                     (d)  any obligation that an existing organisation has under a law of the Commonwealth that is not fulfilled by the time the amalgamation takes effect will be regarded by the proposed amalgamated organisation as an obligation it is bound to fulfil under the law concerned;

FWA must, after consultation with the existing organisations, by notice published as prescribed, fix a day (in this Division called the amalgamation day) as the day on which the amalgamation is to take effect.

             (3)  On the amalgamation day:

                     (a)  if the proposed amalgamated organisation is not already registered—the General Manager must enter, in the register kept under paragraph 13(1)(a), such particulars in relation to the organisation as are prescribed, and the date of the entry; and

                     (b)  any proposed alteration of the rules of an existing organisation concerned in the amalgamation takes effect; and

                     (c)  FWA must de‑register the proposed de‑registering organisations; and

                     (d)  the persons who, immediately before that day, were members of a proposed de‑registering organisation become, by force of this section and without payment of entrance fee, members of the proposed amalgamated organisation.

             (4)  If:

                     (a)  FWA has been given an undertaking, for the purposes of paragraph (2)(d), that an amalgamated organisation will fulfil an obligation; and

                     (b)  after giving the amalgamated organisation an opportunity to be heard, FWA determines that the organisation has not complied with the undertaking;

FWA may make any order it considers appropriate to require the organisation to comply with the undertaking.

74  Assets and liabilities of de‑registered organisation become assets and liabilities of amalgamated organisation

             (1)  On the amalgamation day, all assets and liabilities of a de‑registered organisation cease to be assets and liabilities of that organisation and become assets and liabilities of the amalgamated organisation.

             (2)  For all purposes and in all proceedings, an asset or liability of a de‑registered organisation existing immediately before the amalgamation day is taken to have become an asset or liability of the amalgamated organisation on that day.

75  Resignation from membership

                   When the day on which the proposed amalgamation is to take effect is fixed, section 174 has effect in relation to resignation from membership of a proposed de‑registering organisation as if the reference in subsection 174(2) to 2 weeks were a reference to one week or such lesser period as FWA directs.

76  Effect of amalgamation on modern awards, orders and enterprise agreements

                   On and from the amalgamation day:

                     (a)  a modern award or an enterprise agreement that, immediately before that day, covered a proposed de‑registering organisation and its members covers, by force of this section, the proposed amalgamated organisation and its members; and

                    (aa)  a modern award, an order of FWA or an enterprise agreement that, immediately before that day, applied to a proposed de‑registering organisation and its members applies to, by force of this section, the proposed amalgamated organisation and its members; and

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

77  Effect of amalgamation on agreement under section 151

             (1)  Unless the scheme of a proposed amalgamation otherwise provides, an agreement in force under section 151 to which a de‑registered organisation was a party continues in force on and from the amalgamation day as if references in the agreement to the de‑registered organisation were references to the amalgamated organisation.

             (2)  The General Manager must enter in the register kept under paragraph 13(1)(a) particulars of the effect of the amalgamation on the agreement.

78  Instruments

             (1)  On and after the amalgamation day, an instrument to which this Part applies continues, subject to subsection (2), in full force and effect.

             (2)  The instrument has effect, in relation to acts, omissions, transactions and matters done, entered into or occurring on or after that day as if a reference in the instrument to a de‑registered organisation were a reference to the amalgamated organisation.

79  Pending proceedings

                   Where, immediately before the amalgamation day, a proceeding to which this Part applies was pending in a court or before FWA:

                     (a)  the amalgamated organisation is, on that day, substituted for each de‑registered organisation as a party; and

                     (b)  the proceeding is to continue as if the amalgamated organisation were, and had always been, the de‑registered organisation.

80  Division applies despite laws and agreements prohibiting transfer etc.

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

                     (a)  the Fair Work Act or any other Commonwealth, State or Territory law; or

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

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

                     (a)  is to be regarded as:

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

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

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

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

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

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

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

81  Amalgamated organisation to take steps necessary to carry out amalgamation

             (1)  The amalgamated organisation must take such steps as are necessary to ensure that the amalgamation, and the operation of this Division in relation to the amalgamation, are fully effective.

             (2)  The Federal Court may, on the application of an interested person, make such orders as it considers appropriate to ensure that subsection (1) is given effect to.

82  Certificates in relation to land and interests in land

                   Where:

                     (a)  land or an interest in land becomes, under this Division, land or an interest in land of the amalgamated organisation; and

                     (b)  a certificate that:

                              (i)  is signed by an authorised person; and

                             (ii)  identifies the land or interest, whether by reference to a map or otherwise; and

                            (iii)  states that the land or interest has, under this Division, become land or an interest in land of the amalgamated organisation;

                            is lodged with the Registrar‑General, Registrar of Titles or other proper officer of the State or Territory in which the land is situated;

the officer with whom the certificate is lodged may:

                     (c)  deal with, and give effect to, the certificate as if it were a grant, conveyance, memorandum or instrument of transfer of the land (including all rights, title and interest in the land) or the interest in the land, as the case may be, to the amalgamated organisation that had been properly executed under the law of the State or Territory; and

                     (d)  register the matter in the same way as dealings in land or interests in land of that kind are registered.

83  Certificates in relation to charges

                   Where:

                     (a)  the amalgamated organisation under an amalgamation becomes, under this Division, the holder of a charge; and

                     (b)  a certificate that:

                              (i)  is signed by an authorised person; and

                             (ii)  identifies the charge; and

                            (iii)  states that the amalgamated organisation has, under this Division, become the holder of the charge;

                            is lodged with the Australian Securities and Investments Commission;

that Commission may:

                     (c)  register the matter in the same way as assignments of charges are registered; and

                     (d)  deal with, and give effect to, the certificate as if it were a notice of assignment of the charge that had been properly lodged with that Commission.

84  Certificates in relation to shares etc.

                   Where:

                     (a)  the amalgamated organisation becomes, under this Division, the holder of a share, debenture or interest in a company; and

                     (b)  a certificate that:

                              (i)  is signed by an authorised person; and

                             (ii)  identifies the share, debenture or interest; and

                            (iii)  states that the amalgamated organisation has become, under this Division, the holder of the share, debenture or interest;

                            is delivered to the company;

the company must take all steps necessary to register or record the matter in the same way as transfers of shares, debentures or interests in the company are registered or recorded.

85  Certificates in relation to other assets

                   Where:

                     (a)  an asset (other than an asset to which section 82, 83 or 84 applies) becomes, under this Division, an asset of the amalgamated organisation; and

                     (b)  a certificate that:

                              (i)  is signed by an authorised person; and

                             (ii)  identifies the asset; and

                            (iii)  states that the asset has, under this Division, become an asset of the amalgamated organisation;

                            is given to the person or authority who has, under Commonwealth, State or Territory law, responsibility for keeping a register in relation to assets of that kind;

the person or authority may:

                     (c)  register the matter in the same way as transactions in relation to assets of that kind are registered; and

                     (d)  deal with, and give effect to, the certificate;

as if the certificate were a proper and appropriate instrument for transactions in relation to assets of that kind.

86  Other matters

                   The regulations may provide for any other matters relating to giving effect to an amalgamation.

87  Federal Court may resolve difficulties

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

             (2)  An order made under subsection (1) has effect despite anything contained in this Act, the Fair Work Act or in any other Commonwealth law or any State or Territory law.

 

Division 7—Validation

88  Validation of certain acts done in good faith

             (1)  Subject to this section and to section 90, an act done in good faith for the purposes of a proposed or completed amalgamation by:

                     (a)  an organisation or association concerned in the amalgamation; or

                     (b)  the committee of management of such an organisation or association; or

                     (c)  an officer of such an organisation or association;

is valid despite any invalidity that may later be discovered in or in connection with the act.

             (2)  For the purposes of this section:

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

                     (b)  a person who has purported to be a member of the committee of management, or an officer, is to be treated as having done so in good faith until the contrary is proved; and

                     (c)  an invalidity in the making or altering of the scheme for the amalgamation is not to be treated as discovered before the earliest time proved to be a time when the existence of the invalidity was known to a majority of members of the committee of management or to a majority of the persons purporting to act as the committee of management; and

                     (d)  knowledge of facts from which an invalidity arises is not of itself treated as knowledge that the invalidity exists.

             (3)  This section applies:

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

                     (b)  to an act done to or by an association before it became an organisation.

             (4)  Nothing in this section affects:

                     (a)  the operation of an order of the Federal Court made before the commencement of this section; or

                     (b)  the operation of section 69, 81 or 87 or Part 2 of Chapter 11 (validation provisions for organisations).

89  Validation of certain acts after 4 years

             (1)  Subject to subsection (2) and section 90, after the end of 4 years from the day an act is done for the purposes of a proposed or completed amalgamation by:

                     (a)  an organisation or association concerned in the amalgamation; or

                     (b)  the committee of management of such an organisation or association; or

                     (c)  an officer of such an organisation or association;

the act is taken to have complied with this Part and the rules of the organisation or association.

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

             (3)  This section applies:

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

                     (b)  to an act done to or by an association before it became an organisation.

90  Orders affecting application of section 88 or 89

             (1)  Where, on an application for an order under this section, the Federal Court is satisfied that the application of section 88 or 89 in relation to an act would do substantial injustice, having regard to the interests of:

                     (a)  the organisation or association concerned; or

                     (b)  members or creditors of the organisation or association concerned; or

                     (c)  persons having dealings with the organisation or association concerned;

the Court must, by order, declare accordingly.

             (2)  Where a declaration is made, section 88 or 89, as the case requires, does not apply, and is taken never to have applied, in relation to the act specified in the declaration.

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

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

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

             (2)  On an application under subsection (1), the Court may make such determination as it considers proper.

             (3)  Where, in a proceeding under subsection (1), the Court finds that an invalidity of the kind mentioned in that subsection has occurred, the Court may make such orders as it considers appropriate:

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

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

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

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

             (5)  The Court must not make an order under subsection (3) without satisfying itself that such an order would not do substantial injustice to:

                     (a)  the organisation or association concerned; or

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

                     (c)  any person having dealings with the organisation or association concerned.

             (6)  This section applies:

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

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

 

Part 3—Withdrawal from amalgamations

Division 1—General

92  Object of Part

                   The object of this Part is to provide for:

                     (a)  certain organisations that have taken part in amalgamations (either under this Act or the Workplace Relations Act 1996 as in force before the commencement of this Part) to be reconstituted and re‑registered; and

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

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

93  Definitions etc.

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

amalgamated organisation, in relation to an amalgamation, means the organisation of which members of a de‑registered organisation became members under paragraph 73(3)(d) but does not include any such organisation that was subsequently de‑registered under Part 2.

asset has the same meaning as in Part 2.

authorised person, in relation to a completed withdrawal from amalgamation, means a person authorised by the rules or the committee of management of the newly registered organisation.

ballot means a ballot conducted under Division 2.

charge has the same meaning as in Part 2.

completed withdrawal from amalgamation means a proposed withdrawal from amalgamation that has taken effect.

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

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

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

                              (i)  the constituent part; or

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

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

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

                     (a)  a separately identifiable constituent part; or

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

                              (i)  an organisation de‑registered under Part 2 in connection with the formation of the amalgamated organisation; or

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

                            if the de‑registration had not occurred.

debenture has the same meaning as in Part 2.

holder, in relation to a charge, has the same meaning as in Part 2.

instrument has the same meaning as in Part 2.

instrument to which this Part applies, in relation to a completed withdrawal from amalgamation, means an instrument that immediately before the withdrawal day is an instrument:

                     (a)  to which the amalgamated organisation from which a constituent part has withdrawn to form a newly registered organisation is a party; or

                     (b)  that was given to, by, or in favour of, the amalgamated organisation; or

                     (c)  in which a reference is made to the amalgamated organisation; or

                     (d)  under which any right or liability accrues or may accrue to the amalgamated organisation in relation to the constituent part of the organisation and its members.

interest has the same meaning as in Part 2.

invalidity has the same meaning as in Part 2.

irregularity includes a breach of the rules of an organisation, but in Division 4 does not include an irregularity in relation to a ballot.

liability has the same meaning as in Part 2.

newly registered organisation means an organisation registered under section 110.

proceeding to which this Part applies, in relation to a completed withdrawal from amalgamation, means a proceeding to which an amalgamated organisation was a party immediately before the withdrawal day.

proposed withdrawal from amalgamation means the proposed carrying out of arrangements in relation to an amalgamated organisation under which a separately identifiable constituent part of the organisation is to withdraw from the organisation.

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

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

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

withdrawal day, in relation to a completed withdrawal from amalgamation, means the day fixed under paragraph 109(1)(a) in relation to the withdrawal from amalgamation.

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

                     (a)  the amalgamated organisation; or

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

                              (i)  the amalgamated organisation; or

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

 

Division 2—Ballots for withdrawal from amalgamated organisations

94  Applications to FWA for ballots

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

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

                              (i)  Division 7 of Part 15 of the Workplace Relations Act 1996 (as in force before the commencement of this Part) after 1 February 1991; or

                             (ii)  Part 2 of this Chapter; and

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

                     (c)  the application is made before the period of 5 years after the amalgamation occurred has elapsed.

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

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

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

             (3)  The application may be made by:

                     (a)  the prescribed number of constituent members; or

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

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

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

                     (d)  a person who is:

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

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

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

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

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

95  Outline of proposed withdrawal

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

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

                     (b)  address particulars of any proposal by the applicant for the apportionment of the assets and liabilities of the amalgamated organisation and the constituent part; and

                     (c)  address such other matters as are prescribed.

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

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

          (3A)  If the applicant has insufficient information to prepare an outline that complies with subsection (3), the applicant may request the General Manager to:

                     (a)  give the applicant all information in the possession of the General Manager that may be relevant in the preparation of the outline; or

                     (b)  direct the amalgamated organisation to give the applicant all information in the possession of the organisation that may be relevant in the preparation of the outline.

          (3B)  The General Manager may provide that information, or direct the amalgamated organisation to provide that information.

          (3C)  The amalgamated organisation must comply with a direction of the General Manager under subsection (3B).

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

96  Filing the “yes” case

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

             (2)  The statement must either:

                     (a)  accompany the application; or

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

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

97  Filing the “no” case

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

             (2)  The statement must be filed either:

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

                     (b)  within such later time as FWA allows.

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

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

             (1)  An outline under section 95 or a statement under section 96 or 97 may, if FWA allows, include matter that is not in the form of words, including, for example, diagrams, drawings, illustrations, photographs and symbols.

             (2)  FWA may allow an outline under section 95, or a statement under section 96 or 97, to be amended by whoever filed the outline or statement with FWA.

99  Notifying of applications for ballots

             (1)  If an application is made under section 94, the General Manager must immediately notify the AEC of the application.

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

100  Orders for ballots

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

                     (a)  the application for the ballot is validly made under section 94; and

                     (b)  the outline under section 95 relating to the application:

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

                             (ii)  addresses any matters mentioned in paragraph 95(1)(b) or prescribed for the purposes of paragraph 95(1)(c) in a fair and accurate manner; and

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

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

                     (a)  an applicant for the ballot; and

                     (b)  the amalgamated organisation; and

                     (c)  a creditor of the amalgamated organisation; and

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

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

101  Financial members only eligible to vote

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

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

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

102  Conduct of ballots

             (1)  All ballots are to be conducted by the AEC in accordance with the regulations. The expenses of conducting such a ballot are to be borne by the Commonwealth.

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

                     (a)  a copy of the outline under section 95 relating to the proposed withdrawal; and

                     (b)  if there is a statement under section 96 in support of the proposed withdrawal—a copy of that statement; and

                     (c)  if there is a statement under section 97 in opposition to the proposed withdrawal—a copy of that statement; and

                     (d)  the declaration envelope and other envelope required for the purposes of the postal ballot.

             (3)  In a ballot conducted under this section, each completed ballot paper must be returned to the AEC as follows:

                     (a)  the ballot paper must be in the declaration envelope provided to the voter with the ballot paper;

                     (b)  the declaration envelope must be in another envelope that is in the form prescribed by the regulations.

103  Providing information etc. to electoral officials

             (1)  An electoral official may, if:

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

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

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

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

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

             (2)  An officer or employee of an organisation or branch of an organisation commits an offence if he or she fails to comply with a requirement made under subsection (1).

             (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.

Maximum penalty:    30 penalty units.

             (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 104(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.

104  Declaration by secretary etc. of organisation

             (1)  If a requirement is made under subsection 103(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 with FWA, 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).

105  Offences in relation to ballots

Interference with ballot papers

             (1)  A person commits an offence in relation to a ballot if the person:

                     (a)  impersonates another person with the intention of:

                              (i)  securing a ballot paper to which the impersonator is not entitled; or

                             (ii)  casting a vote; or

                     (b)  does an act that results in a ballot paper or envelope being destroyed, defaced, altered, taken or otherwise interfered with; or

                     (c)  fraudulently puts a ballot paper or other paper:

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

                             (ii)  into the post; or

                     (d)  delivers a ballot paper or other paper to a person other than a person receiving ballot papers for the purposes of the ballot; or

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

                      (f)  records more than one vote; or

                     (g)  forges a ballot paper or envelope, or utters a ballot paper or envelope that the person knows to be forged; or

                     (h)  provides a ballot paper without authority; or

                      (i)  obtains a ballot paper which the person is not entitled to obtain; or

                      (j)  has possession of a ballot paper which the person is not entitled to possess; or

                     (k)  does an act that results in a ballot box or other ballot receptacle being destroyed, taken, opened or otherwise interfered with.

Maximum penalty:    30 penalty units.

Hindering the ballot, threats and bribes etc.

             (2)  A person commits an offence in relation to a ballot if the person:

                     (a)  hinders or obstructs the taking of the ballot; or

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

                     (c)  threatens, offers or suggests, or uses, causes or inflicts any violence, injury, punishment, damage, loss or disadvantage with the intention of influencing or affecting:

                              (i)  any vote or omission to vote; or

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

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

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

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

                      (f)  counsels or advises a person entitled to vote to refrain from voting.

Maximum penalty:    30 penalty units.

Secrecy of vote

             (3)  A person (the relevant person) commits an offence in relation to a ballot if:

                     (a)  the relevant person requests, requires or induces another person:

                              (i)  to show a ballot paper to the relevant person; or

                             (ii)  to permit the relevant person to see a ballot paper;

                            in such a manner that the relevant person can see the vote while the ballot paper is being marked or after it has been marked; or

                     (b)  in the case where the relevant person is a person performing duties for the purposes of the ballot—the relevant person shows another person, or permits another person to have access to, a ballot paper used in the ballot, otherwise than in the performance of the duties.

Maximum penalty:    30 penalty units.

106  Certificate showing particulars of the ballot

             (1)  Within 14 days after the closing day of a ballot, the electoral official conducting the ballot must prepare, date and sign a certificate showing, in relation to the ballot:

                     (a)  the total number of persons on the roll of voters; and

                     (b)  the total number of ballot papers issued; and

                     (c)  the total number of ballot papers received by the electoral official; and

                     (d)  the total number of votes in favour of the question set out on the ballot paper; and

                     (e)  the total number of votes not in favour of the question set out on the ballot paper; and

                      (f)  the total number of informal ballot papers.

             (2)  Immediately after signing a certificate referred to in subsection (1), the electoral official must give a copy of the certificate to:

                     (b)  the General Manager; and

                     (c)  if the applicant was a person mentioned in paragraph 94(3)(aa), (b), (c) or (d)—each applicant; and

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

             (3)  Immediately after signing a certificate referred to in subsection (1), the electoral official must make a copy of the certificate available in any way that it considers appropriate to each applicant under paragraph 94(3)(a).

107  Post‑ballot report by AEC

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

                     (b)  the General Manager; and

                     (c)  if the applicant was a person mentioned in paragraph 94(3)(aa), (b), (c) or (d)—each applicant; and

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

             (2)  After the completion of the ballot, the AEC must make a report on the conduct of the ballot available in any way that it considers appropriate to each applicant under paragraph 94(3)(a).

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

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

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

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

this fact must be included in the report.

108  Inquiries into irregularities

             (1)  Not later than 30 days after the result of a ballot under this Part is declared, application may be made to FWA, as prescribed, for an inquiry by FWA into alleged irregularities in relation to the ballot.

             (2)  If FWA finds that there has been an irregularity that may affect, or may have affected, the result of the ballot, FWA may:

                     (a)  if the ballot has not been completed—order that a step in relation to the ballot be taken again; or

                     (b)  in any other case—order that a fresh ballot be conducted in place of the ballot in which the irregularity happened;

and may make such further orders as it considers necessary or desirable.

             (3)  The regulations may make provision with respect to the procedure for inquiries by FWA into alleged irregularities in relation to ballots under this Part, and for matters relating to, or arising out of, inquiries.

108A  Powers of FWA to be exercised by President or Full Bench

                   The powers of FWA under this Division are exercisable by:

                     (a)  the President; or

                     (b)  if the President directs—a Full Bench of which the President is a member.

 

Division 3—Giving effect to ballots

109  Determining the day of withdrawal

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

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

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

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

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

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

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

                     (c)  any proposal for the apportionment of the assets and liabilities of the amalgamated organisation and the constituent part contained in the outline under section 95 relating to the application for the ballot; and

                     (d)  if the constituent part is a separately identifiable constituent part—the proportion of the members of the amalgamated organisation that are included in the constituent part; and

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

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

                     (a)  the prescribed number of constituent members; or

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

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

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

                     (e)  a person who is:

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

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

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

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

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

110  Registration of constituent part

                   The General Manager must, with effect from the day determined under paragraph 109(1)(a):

                     (a)  register the constituent part as an organisation in the register kept under paragraph 13(1)(a); and

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

111  Choice of organisation following withdrawal of separately identifiable constituent part

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

             (2)  As soon as practicable after the constituent part is registered as an organisation under section 110, the General Manager must send a written statement in accordance with subsection (3) to each person who, immediately before that registration, was a constituent member of the constituent part.

             (3)  The statement must:

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

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

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

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

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

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

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

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

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

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

             (7)  If a person referred to in subsection (2) gives written notice in accordance with paragraph (3)(b), within the notice period, that he or she wants to remain a member of the amalgamated organisation, he or she remains a member of the amalgamated organisation.

          (7A)  If a person referred to in subsection (2) fails to give written notice in accordance with paragraph (3)(b), he or she:

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

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

             (8)  A person who ceases to be a member of the amalgamated organisation because of the operation of subsection (6):

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

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

             (9)  Despite subsection (7A), if a person to whom that subsection would apply, at any time before the day upon which the constituent part is registered as an organisation under section 110, gives notice in writing to the amalgamated organisation or to the applicant for a ballot under section 94 that he or she wishes to remain a member of the amalgamated organisation after the registration of the constituent part as an organisation under section 110, that person remains a member of the amalgamated organisation.

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

           (11)  As soon as practicable after the end of the notice period, the newly registered organisation must notify the amalgamated organisation of any notices under subsection (9) the applicant under section 94 has received.

112  Members of amalgamated organisation may join newly registered organisation

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

113  Orders of FWA, modern awards etc. made before withdrawal

             (1)  This section applies to an order of FWA, a modern award or an enterprise agreement that, immediately before the day the registration takes effect, covered the amalgamated organisation in relation to the constituent part of the organisation and its members.

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

                     (a)  covers the newly registered organisation and its members; and

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

113A  Enterprise agreements made after withdrawal

             (1)  This section applies to an enterprise agreement that:

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

                     (b)  covers the amalgamated organisation; and

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

             (2)  On and from the day the agreement covers the amalgamated organisation, it also:

                     (a)  covers the newly registered organisation and its members; and

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

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

114  Effect of withdrawal on agreement under section 151

             (1)  An agreement:

                     (a)  in force under section 151 immediately before the day on which registration of a newly registered organisation takes effect; and

                     (b)  to which the amalgamated organisation from which a constituent part has withdrawn to form the newly registered organisation is a party;

continues in force on and from that day as if references in the agreement to the amalgamated organisation included a reference to the newly registered organisation.

             (2)  The General Manager must enter in the register kept under paragraph 13(1)(a) particulars of the effect of the withdrawal from amalgamation on the agreement.

115  Instruments

             (1)  On and after the withdrawal day, an instrument to which this Part applies continues, subject to subsection (2), in full force and effect.

             (2)  Subject to section 109, the instrument has effect, in relation to acts, omissions, transactions and matters done, entered into or occurring on or after that day as if a reference in the instrument to the amalgamated organisation from which a constituent part has withdrawn to form a newly registered organisation included a reference to the newly registered organisation.

116  Pending proceedings

                   If an amalgamated organisation from which a constituent part has withdrawn to form a newly registered organisation was, immediately before the withdrawal day, a party to a proceeding that:

                     (a)  was pending at that day; and

                     (b)  concerns, wholly or in part, the interests of the constituent members of the constituent part;

then, on and after that day, the newly registered organisation:

                     (c)  in the case of proceedings that concern wholly the interests of the constituent members—is substituted for the amalgamated organisation in those proceedings and has the same rights and obligations in the proceedings as the amalgamated organisation had; and

                     (d)  in the case of proceedings that concern in part the interests of the constituent members—becomes a party to the proceedings and has the same rights and obligations in the proceedings as the amalgamated organisation has.

117  Division applies despite laws and agreements prohibiting transfer etc.

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

                     (a)  the Fair Work Act or any other Commonwealth, State or Territory law; or

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

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

                     (a)  is to be regarded as:

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

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

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

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

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

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

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

118  Amalgamated organisation, constituent part and newly registered organisation to take necessary steps

             (1)  The following must take such steps as are necessary to ensure that the withdrawal from amalgamation, and the operation of this Division in relation to the withdrawal from amalgamation, are fully effective:

                     (a)  the amalgamated organisation concerned;

                     (b)  the constituent part concerned;

                     (c)  the newly registered organisation concerned.

             (2)  The Federal Court may, on the application of an interested person, make such orders as it considers appropriate to ensure that subsection (1) is given effect to.

119  Certificates in relation to land and interests in land

                   Where:

                     (a)  land or an interest in land becomes, under this Division, land or an interest in land of a newly registered organisation; and

                     (b)  a certificate that:

                              (i)  is signed by an authorised person; and

                             (ii)  identifies the land or interest, whether by reference to a map or otherwise; and

                            (iii)  states that the land or interest has, under this Division, become land or an interest in land of the newly registered organisation;

                            is lodged with the Registrar‑General, Registrar of Titles or other proper officer of the State or Territory in which the land is situated;

the officer with whom the certificate is lodged may:

                     (c)  register the matter in the same way as dealings in land or interests in land of that kind are registered; and

                     (d)  deal with, and give effect to, the certificate as if it were a grant, conveyance, memorandum or instrument of transfer of the land (including all rights, title and interest in the land) or the interest in the land, as the case may be, to the newly registered organisation that had been properly executed under the law of the State or Territory.

120  Certificates in relation to charges

                   Where:

                     (a)  a newly registered organisation becomes, under this Division, the holder of a charge; and

                     (b)  a certificate that:

                              (i)  is signed by an authorised person; and

                             (ii)  identifies the charge; and

                            (iii)  states that the newly registered organisation has, under this Division, become the holder of the charge;

                            is lodged with the Australian Securities and Investments Commission;

that Commission may:

                     (c)  register the matter in the same way as assignments of charges are registered; and

                     (d)  deal with, and give effect to, the certificate as if it were a notice of assignment of the charge that had been properly lodged with that Commission.

121  Certificates in relation to shares etc.

                   Where:

                     (a)  a newly registered organisation becomes, under this Division, the holder of a share, debenture or interest in a company; and

                     (b)  a certificate that:

                              (i)  is signed by an authorised person; and

                             (ii)  identifies the share, debenture or interest; and

                            (iii)  states that the newly registered organisation has become, under this Division, the holder of the share, debenture or interest;

                            is delivered to the company;

the company must take all steps necessary to register or record the matter in the same way as transfers of shares, debentures or interests in the company are registered or recorded.

122  Certificates in relation to other assets

                   Where:

                     (a)  an asset (other than an asset to which section 119, 120 or 121 applies) becomes, under this Division, an asset of a newly registered organisation; and

                     (b)  a certificate that:

                              (i)  is signed by an authorised person; and

                             (ii)  identifies the asset; and

                            (iii)  states that the asset has, under this Division, become an asset of the newly registered organisation;

                            is given to the person or authority who has, under Commonwealth, State or Territory law, responsibility for keeping a register in relation to assets of that kind;

the person or authority may:

                     (c)  register the matter in the same way as transactions in relation to assets of that kind are registered; and

                     (d)  deal with, and give effect to, the certificate as if the certificate were a proper and appropriate instrument for transactions in relation to assets of that kind.

123  Holding office after withdrawal

             (1)  The rules of a newly registered organisation may provide that a person who:

                     (a)  was elected to office (the constituent office) in the constituent part that withdrew from an amalgamated organisation to form the new registered organisation; and

                     (b)  held that office immediately before withdrawal day;

holds the equivalent office in the newly registered organisation as if he or she were elected under the rules of the newly registered organisation.

             (2)  However, the rules may not permit a person to hold office after the later of:

                     (a)  the day that would have been the person’s last day of term in the constituent office if the withdrawal had not occurred; and

                     (b)  the first anniversary of the withdrawal day.

124  Other matters

                   The regulations may provide for any other matters relating to giving effect to the withdrawal of constituent parts from amalgamated organisations.

125  Federal Court may resolve difficulties

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

             (2)  An order made under subsection (1) has effect despite any Commonwealth, State or Territory law.

 

Division 4—Validation

126  Validation of certain acts done in good faith

             (1)  Subject to this section and to section 128, an act done in good faith for the purposes of a proposed or completed withdrawal from amalgamation by:

                     (a)  the amalgamated organisation concerned; or

                     (b)  the committee of management, or an officer, of that organisation; or

                     (c)  the constituent part concerned; or

                     (d)  the committee of management, or an officer, of that part; or

                     (e)  the newly registered organisation concerned; or

                      (f)  the committee of management, or an officer, of that organisation;

is valid despite any invalidity that may later be discovered in or in connection with the act.

             (2)  For the purposes of this section:

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

                     (b)  a person who has purported to be a member of the committee of management, or an officer, is to be treated as having done so in good faith until the contrary is proved; and

                     (c)  an invalidity in the making or altering of the outline of the proposed withdrawal from amalgamation is not to be treated as discovered before the earliest time proved to be a time when the existence of the invalidity was known to a majority of members of the committee of management or to a majority of the persons purporting to act as the committee of management; and

                     (d)  knowledge of facts from which an invalidity arises is not of itself treated as knowledge that the invalidity exists.

             (3)  This section applies to an act whenever done (including an act done before the commencement of this section).

             (4)  Nothing in this section affects:

                     (a)  the operation of an order of the Federal Court made before the commencement of this section; or

                     (b)  the operation of section 108, 118 or 125 or Part 2 of Chapter 11 (validation provisions for organisations).

127  Validation of certain acts after 4 years

             (1)  Subject to subsection (2) and section 128, after the end of 4 years from the day an act is done for the purposes of a proposed or completed withdrawal from amalgamation by:

                     (a)  the amalgamated organisation concerned; or

                     (b)  the committee of management, or an officer, of that organisation; or

                     (c)  the constituent part concerned; or

                     (d)  the committee of management, or an officer, of that part; or

                     (e)  the newly registered organisation concerned; or

                      (f)  the committee of management, or an officer, of that organisation;

the act is taken to have complied with this Part and the rules of the organisation.

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

             (3)  This section applies to an act whenever done (including an act done before the commencement of this section).

128  Orders affecting application of section 126 or 127

             (1)  Where, on an application for an order under this section, the Federal Court is satisfied that the application of section 126 or 127 in relation to an act would do substantial injustice, having regard to the interests of:

                     (a)  the amalgamated organisation from which a constituent part withdrew to form a newly registered organisation, or the constituent part; or

                     (b)  members or creditors of the amalgamated organisation or the constituent part; or

                     (c)  persons having dealings with the amalgamated organisation or the constituent part; or

                     (d)  the newly registered organisation; or

                     (e)  members or creditors of the newly registered organisation; or

                      (f)  persons having dealings with the newly registered organisation;

the Court must, by order, declare accordingly.

             (2)  Where a declaration is made, section 126 or 127, as the case requires, does not apply, and is taken never to have applied, in relation to the act specified in the declaration.

             (3)  The Court may make an order under subsection (1) on the application of:

                     (a)  the amalgamated organisation; or

                     (b)  the constituent part; or

                     (c)  the newly registered organisation; or

                     (d)  a member of, or any other person having a sufficient interest in relation to, a body referred to in paragraph (a), (b) or (c).

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

             (1)  Any of the following may apply to the Federal Court for a determination of the question whether an invalidity has occurred in a proposed withdrawal from amalgamation or completed withdrawal from amalgamation:

                     (a)  the amalgamated organisation concerned;

                     (b)  the constituent part concerned;

                     (c)  the newly registered organisation concerned;

                     (d)  a member of, or any other person having a sufficient interest in relation to, a body referred to in paragraph (a), (b) or (c).

             (2)  On an application under subsection (1), the Court may make such determination as it considers proper.

             (3)  Where, in a proceeding under subsection (1), the Court finds that an invalidity of the kind mentioned in that subsection has occurred, the Court may make such orders as it considers appropriate:

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

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

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

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

             (5)  The Court must not make an order under subsection (3) without satisfying itself that such an order would not do substantial injustice to:

                     (a)  the amalgamated organisation; or

                     (b)  a member or creditor of the amalgamated organisation; or

                     (c)  the constituent part; or

                     (d)  a constituent member of the constituent part; or

                     (e)  the newly registered organisation; or

                      (f)  a member or creditor of the newly registered organisation; or

                     (g)  any other person having dealings with the amalgamated organisation, the constituent part or the newly registered organisation.

             (6)  This section applies to an invalidity whenever occurring (including an invalidity occurring before the commencement of this section).

 

Division 5—Miscellaneous

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

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

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

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

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

                     (a)  making an application under section 94;

                     (b)  supporting, or supporting the making of, an application under section 94;

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

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

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

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

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

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

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

131  Amalgamated organisation not to penalise members etc.

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

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

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

because the member, officer, branch or part concerned does, or proposes to do, an act or omission referred to in section 130.

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

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

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

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

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

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

                     (d)  any other consequential orders.

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

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

                     (b)  any other person prescribed by the regulations.

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

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

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

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

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

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

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

                     (b)  a person authorised by the committee; or

                     (c)  an officer of the amalgamated organisation;

has taken reasonable steps to prevent the action.

             (6)  In this section:

amalgamated organisation includes a branch of an amalgamated organisation.

officer, in relation to an amalgamated organisation, includes:

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

                     (b)  an employee of the organisation.

 

Chapter 4—Representation orders

Part 1—Simplified outline

  

132  Simplified outline

 

Part 2—Representation orders

  

133  Orders about representation rights of organisations of employees

             (1)  Subject to this Part, Part 4 and subsection 151(6), FWA may, on the application of an organisation, an employer or the Minister, make the following orders in relation to a demarcation dispute:

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

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

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

Note:          Section 151 deals with agreements between organisations of employees and State unions.

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

134  Preconditions for making of orders

                   FWA must not make an order unless FWA is satisfied that:

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

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

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

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

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

                             (ii)  are imminent;

                            as a result of such conduct or threatened conduct.

135  Factors to be taken into account by FWA

                   In considering whether to make an order under section 133, FWA must have regard to the wishes of the employees who are affected by the dispute and, where FWA considers it appropriate, is also to have regard to:

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

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

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

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

136  Order may be subject to limits

                   The order may be subject to conditions or limitations.

137  Organisation must comply with order

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

             (2)  The Federal Court may, on application by the Minister or a person or organisation affected by an order made under section 133, make such orders as it thinks fit to ensure compliance with that order.

 

Part 3—Representation orders for workplace groups

Note:       In addition to registered organisations, this Part also applies to transitionally recognised associations (see clause 3 of Schedule 1) and recognised State‑registered associations (see clause 2 of Schedule 2).

  

137A  Orders about representation rights of organisations of employees

             (1)  Subject to this Part, Part 4 and subsection 151(6), FWA may, on the application of an organisation, an employer or the Minister, make the following orders in relation to a dispute (including a threatened, impending or probable dispute) about the entitlement of an organisation of employees to represent, under this Act or the Fair Work Act, the industrial interests of employees:

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

                     (b)  an order that an organisation of employees is not to have the right to represent under this Act or the Fair Work Act the industrial interests of the employees in a particular workplace group.

Note:          Section 151 deals with agreements between organisations of employees and State unions.

Interim orders

             (2)  FWA may make an interim order in relation to an application under subsection (1) on application by a person or organisation who would have been eligible to make the application under subsection (1).

             (3)  FWA must not make an order under subsection (2) if FWA considers that the making of the order would be unfair to a person or organisation other than the applicant.

             (4)  An interim order made under subsection (2) ceases to have effect if the application under subsection (1) is determined.

Variation of orders

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

             (6)  FWA may, on its own initiative, vary an order made under subsection (1) or (2) if the order is inconsistent with an order that is in force under subsection 133(1).

Inconsistency with orders under subsection 133(1)

             (7)  FWA must not make an order under subsection (1) or (2) if the order would be inconsistent with an order that is in force under subsection 133(1).

137B  Factors to be taken into account by FWA

             (1)  In considering whether to make an order under subsection 137A(1) in relation to a particular workplace group, FWA must have regard to:

                     (a)  the history of award coverage and agreement making in relation to the employees in the workplace group; and

                     (b)  the wishes of the members of the workplace group; and

                     (c)  the extent to which particular organisations of employees represent the employees in the workplace group, and the nature of that representation; and

                     (d)  any agreement or understanding of which FWA becomes aware that deals with the right of an organisation of employees to represent under this Act or the Fair Work Act the industrial interests of a particular class or group of employees; and

                     (e)  the consequences of not making the order for any employer, employees or organisation concerned; and

                      (f)  any matter prescribed by the regulations.

             (2)  However, if:

                     (a)  the workplace group relates to a genuine new enterprise (within the meaning of the Fair Work Act) that one or more employers are establishing or propose to establish; and

                     (b)  the employer or employees have not employed any of the persons who will be necessary for the normal conduct of that enterprise;

FWA must, as far as practicable, have regard to the matters set out in subsection (1) as they would apply in relation to the persons who would be the employees in the workplace group.

Note:          The expression genuine new enterprise includes a genuine new business, activity, project or undertaking (see the definition of enterprise in section 12 of the Fair Work Act).

             (3)  If:

                     (a)  the eligibility rules of an organisation of employees have been altered with the consent of the General Manager under section 158A; and

                     (b)  because of the alteration, members of an association of employees registered under a State or Territory industrial law have become eligible for membership of the organisation;

a reference in this section to the organisation includes a reference to the association referred to in paragraph (b) of this subsection.

137C  Submissions by peak councils

             (1)  A peak council is entitled to make a submission for consideration in relation to the proposed making of an order under subsection 137A(1).

             (2)  Subsection (1) applies whether or not FWA holds a hearing in relation to the matter.

137D  Order may be subject to limits

                   An order under subsection 137A(1) or (2) may be subject to conditions or limitations.

137E  Organisation must comply with order

             (1)  An organisation to which an order under subsection 137A(1) or (2) applies must comply with the order.

             (2)  The Federal Court may, on application by the Minister or a person or organisation affected by an order made under subsection 137A(1) or (2), make such orders as it thinks fit to ensure compliance with that order.

 

Part 4—Miscellaneous

  

137F  FWA may make orders reflecting State representation orders

             (1)  If:

                     (a)  the eligibility rules of an organisation of employees have been altered with the consent of the General Manager under section 158A; and

                     (b)  because of the alteration, members of an association of employees that is registered under a State or Territory industrial law (a State registered association) have become eligible for membership of the organisation; and

                     (c)  immediately before the alteration took effect, an order (a State representation order) was in force that:

                              (i)  was made by a State industrial authority in relation to the State registered association; and

                             (ii)  was an order of the same kind as, or of a similar kind to, an order that FWA could make under this Chapter in relation to an organisation;

FWA may, on application by the organisation or by a party to the State representation order, make an order in relation to the organisation that is to the same effect, or substantially the same effect, as the State representation order.

             (2)  The order under subsection (1) applies to each organisation that is:

                     (a)  a federal counterpart of the State registered association; or

                     (b)  a federal counterpart of any other association of employees:

                              (i)  that is registered under a State or Territory industrial law; and

                             (ii)  to which the State representation order applied.

138  Exercise of FWA’s powers under this Chapter

                   The powers of FWA under this Chapter are exercisable only by a Full Bench.

138A  Representation rights of former State‑registered associations

             (1)  Regulations made for the purposes of this subsection may modify the way in which this Chapter applies in relation to an organisation that, before becoming recognised under this Act, was a State‑registered association or a transitionally recognised association.

             (2)  Without limiting subsection (1), the regulations may specify the weight that FWA is to give, in making an order in relation to the rights of such an organisation to represent the interests under this Act or the Fair Work Act of a particular class or group of employees, to a State demarcation order.

 

Chapter 5—Rules of organisations

Part 1—Simplified outline of Chapter

  

139  Simplified outline

 

Part 2—Rules of organisations

Division 1—General

140  Organisations to have rules

             (1)  An organisation must have rules that make provision as required by this Act.

             (2)  A rule of an organisation making provision required by this Act to be made may be mandatory or directory.

141  Rules of organisations

             (1)  The rules of an organisation:

                     (a)  must specify the purposes for which the organisation is formed and the conditions of eligibility for membership; and

                     (b)  must provide for:

                              (i)  the powers and duties of the committees of the organisation and its branches, and the powers and duties of holders of offices in the organisation and its branches; and

                             (ii)  the manner of summoning meetings of members of the organisation and its branches, and meetings of the committees of the organisation and its branches; and

                            (iii)  the removal of holders of offices in the organisation and its branches; and

                            (iv)  the control of committees of the organisation and its branches respectively by the members of the organisation and branches; and

                             (v)  the manner in which documents may be executed by or on behalf of the organisation; and

                            (vi)  the manner of notifying FWA of industrial disputes; and

                           (vii)  the times when, and the terms on which, persons become or cease (otherwise than by resignation) to be members; and

                           (viii)  the resignation of members under section 174; and

                            (ix)  the manner in which the property of the organisation is to be controlled and its funds invested; and

                             (x)  the yearly or other more frequent audit of the accounts; and

                            (xi)  the conditions under which funds may be spent; and

                           (xii)  the keeping of a register of the members, arranged, where there are branches of the organisation, according to branches; and

                           (xiii)  the manner in which its rules may be altered; and

                     (c)  may provide for the removal from office of a person elected to an office in the organisation only where the person has been found guilty, under the rules of the organisation, of:

                              (i)  misappropriation of the funds of the organisation; or

                             (ii)  a substantial breach of the rules of the organisation; or

                            (iii)  gross misbehaviour or gross neglect of duty;

                            or has ceased, under the rules of the organisation, to be eligible to hold the office; and

                     (d)  must require the organisation to inform applicants for membership, in writing, of:

                              (i)  the financial obligations arising from membership; and

                             (ii)  the circumstances, and the manner, in which a member may resign from the organisation.

Note 1:       Section 166 deals with entitlement to membership of organisations.

Note 2:       See also section 179 (liability for arrears).

             (2)  The rules of an organisation of employees may include provision for the eligibility for membership of the organisation of 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 organisation.

             (3)  The rules of an organisation may also provide for any other matter.

             (4)  In this section:

committee, in relation to an organisation or branch of an organisation, means a collective body of the organisation or branch that has powers of the kind mentioned in paragraph (1)(b) of the definition of office in section 9.

142  General requirements for rules

             (1)  The rules of an organisation:

                     (a)  must not be contrary to, or fail to make a provision required by this Act, the Fair Work Act, a modern award or an enterprise agreement, or otherwise be contrary to law; and

                     (b)  must not be such as to prevent or hinder members of the organisation from:

                              (i)  observing the law or the provisions of a modern award, an order of FWA or an enterprise agreement; or

                             (ii)  entering into written agreements under a modern award, an order of FWA or an enterprise agreement; and

                     (c)  must not impose on applicants for membership, or members, of the organisation, conditions, obligations or restrictions that, having regard to Parliament’s intention in enacting this Act (see section 5) and the objects of this Act and the Fair Work Act, are oppressive, unreasonable or unjust; and

                     (d)  must not discriminate between applicants for membership, or members, of the organisation on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

             (2)  For the purposes of paragraph (1)(d), rules of an organisation are taken not to discriminate on the basis of age if the rules do not prevent the organisation setting its membership dues by reference to rates of pay even where those rates are set by reference to a person’s age.

 

Division 2—Rules relating to elections for office

143  Rules to provide for elections for offices

             (1)  The rules of an organisation:

                     (a)  must provide for the election of the holder of each office in the organisation by:

                              (i)  a direct voting system; or

                             (ii)  a collegiate electoral system that, in the case of a full‑time office, is a one‑tier collegiate electoral system; and

                     (b)  must provide for the conduct of every such election (including the acceptance or rejection of nominations) by a returning officer who is not the holder of any office in, or an employee of, the organisation or a branch, section or division of the organisation; and

                     (c)  must provide that, if the returning officer conducting an election finds a nomination to be defective, the returning officer must, before rejecting the nomination, notify the person concerned of the defect and, where practicable, give the person the opportunity of remedying the defect within such period as is applicable under the rules, which must, where practicable, be not less than 7 days after the person is notified; and

                     (d)  must make provision for:

                              (i)  the manner in which persons may become candidates for election; and

                             (ii)  the duties of returning officers; and

                            (iii)  the declaration of the result of an election; and

                     (e)  must provide that, where a ballot is required, it must be a secret ballot, and must make provision for:

                              (i)  in relation to a direct voting system ballot (including a direct voting system ballot that is a stage of an election under a collegiate electoral system)—the day on which the roll of voters for the ballot is to be closed; and

                             (ii)  absent voting; and

                            (iii)  the conduct of the ballot; and

                            (iv)  the appointment, conduct and duties of scrutineers to represent the candidates at the ballot; and

                      (f)  must be such as to ensure, as far as practicable, that no irregularities can occur in relation to an election.

             (2)  Without limiting section 142, the rules of an organisation relating to elections may provide for compulsory voting.

             (3)  The day provided for in the rules of an organisation as the day on which the roll of voters is to be closed (see paragraph (1)(e)) must be a day no earlier than 30 days, and no later than 7 days, before the day on which nominations for the election open.

             (4)  A reference in this section to the rules of an organisation includes a reference to the rules of a branch of the organisation.

             (5)  The reference in paragraph (1)(c) to a nomination being defective does not include a reference to a nomination of a person that is defective because the person is not qualified to hold the office to which the nomination relates.

             (6)  The rules providing for the day on which the roll of voters for a ballot is to be closed are not to be taken to prevent the correction of errors in the roll after that day.

144  Rules to provide for elections for office by secret postal ballot

             (1)  Where the rules of an organisation provide for election for an office to be by a direct voting system, the rules must also provide that, where a ballot is required for such an election, it must be a secret postal ballot.

             (2)  An organisation may lodge with FWA an application for an exemption from subsection (1), accompanied by particulars of proposed alterations of the rules of the organisation, to provide for the conduct of elections of the kind referred to in subsection (1) by a secret ballot other than a postal ballot.

             (3)  If the General Manager is satisfied, on application by an organisation under subsection (2):

                     (a)  that the proposed alterations of the rules:

                              (i)  comply with and are not contrary to this Act (other than subsection (1)), the Fair Work Act, modern awards or enterprise agreements; and

                             (ii)  are not otherwise contrary to law; and

                            (iii)  have been decided on under the rules of the organisation; and

                     (b)  that the conduct of a ballot under the rules of the organisation as proposed to be altered:

                              (i)  is likely to result in a fuller participation by members of the organisation in the ballot than would result from a postal ballot; and

                             (ii)  will afford to members entitled to vote an adequate opportunity of voting without intimidation;

the General Manager may grant to the organisation an exemption from subsection (1).

             (4)  Proposed alterations of the rules of an organisation referred to in subsection (2) take effect if and when the General Manager grants to the organisation an exemption from subsection (1).

             (5)  An exemption under subsection (3) remains in force until revoked under subsection (6).

             (6)  The General Manager may revoke an exemption granted to an organisation under subsection (3):

                     (a)  on application by the organisation, if the General Manager is satisfied that the rules of the organisation comply with subsection (1); or

                     (b)  if the General Manager is no longer satisfied:

                              (i)  that the rules of the organisation provide for the conduct of elections of the kind referred to in subsection (1) by a secret ballot other than a postal ballot; or

                             (ii)  of a matter referred to in paragraph (3)(b);

                            and the General Manager has given the organisation an opportunity, as prescribed, to show cause why the exemption should not be revoked.

             (7)  Where the General Manager revokes an exemption granted to an organisation on the ground specified in paragraph (6)(b), the General Manager may, by instrument, after giving the organisation an opportunity, as prescribed, to be heard, determine such alterations (if any) of the rules of the organisation as are, in the General Manager’s opinion, necessary to bring them into conformity with subsection (1).

             (8)  An alteration of the rules of an organisation determined under subsection (7) takes effect on the date of the instrument.

             (9)  Subsection 604(1) of the Fair Work Act does not apply in relation to a decision of the General Manager to grant an exemption under subsection (3).

Note:          Subsection 604(1) of the Fair Work Act provides for appeals from certain decisions of the General Manager.

           (10)  This section applies in relation to elections for offices in branches of organisations as if references to an organisation were references to a branch of an organisation.

145  Rules to provide for terms of office

             (1)  The rules of an organisation must, subject to subsection (2), provide terms of office for officers in the organisation of no longer than 4 years without re‑election.

             (2)  The rules of an organisation, or a branch of an organisation, may provide that a particular term of office is extended for a specified period, where the extension is for the purpose of synchronising elections for offices in the organisation or branch, as the case may be.

             (3)  The term of an office must not be extended under subsection (2) so that the term exceeds 5 years.

             (4)  A reference in this section (other than subsection (2)) to the rules of an organisation includes a reference to the rules of a branch of the organisation.

146  Rules may provide for filling of casual vacancies

             (1)  The rules of an organisation may provide for the filling of a casual vacancy in an office by an ordinary election or, subject to this section, in any other manner provided in the rules.

             (2)  Rules made under subsection (1) must not permit a casual vacancy, or a further casual vacancy, occurring within the term of an office to be filled, otherwise than by an ordinary election, for so much of the unexpired part of the term as exceeds:

                     (a)  12 months; or

                     (b)  three‑quarters of the term of the office;

whichever is the greater.

             (3)  Where, under rules made under subsection (1), a vacancy in an office in an organisation is filled otherwise than by an ordinary election, the person filling the vacancy must be taken, for the purposes of the relevant provisions, to have been elected to the office under the relevant provisions.

             (4)  A reference in this section to the rules of an organisation includes a reference to the rules of a branch of the organisation.

             (5)  In this section:

ordinary election means an election held under rules that comply with section 143.

relevant provisions, in relation to an organisation, means:

                     (a)  the provisions of this Act (other than this section); and

                     (b)  the rules of the organisation (other than rules made under subsection (1)) providing for the filling of a casual vacancy in an office otherwise than by an ordinary election.

term, in relation to an office, means the total period for which the last person elected to the office by an ordinary election (other than an ordinary election to fill a casual vacancy in the office) was entitled by virtue of that election (having regard to any rule made under subsection 145(2)) to hold the office without being re‑elected.

147  Model rules for conduct of elections

             (1)  The Minister may, by notice published in the Gazette, issue guidelines containing one or more sets of model rules for the conduct of elections for office. An organisation may adopt model rules in whole or in part, and with or without modification.

             (2)  The Minister may, by signed instrument, delegate the power under subsection (1) to the Electoral Commissioner.

Note:          The Minister may also delegate this power under section 343.

 

Division 3—Rules relating to conduct of officers and employees

148  Model rules about conduct of officers and employees

                   The Minister may, by notice published in the Gazette, issue guidelines containing one or more sets of model rules about the conduct of officers and employees. An organisation may adopt the model rules in whole or in part, and with or without modification.

Note:          Part 4 of Chapter 8 deals with the conduct of officers and employees.

 

Division 4—Other rules

Subdivision A—Loans, grants and donations

149  Rules to provide conditions for loans, grants and donations by organisations

             (1)  The rules of an organisation must provide that a loan, grant or donation of an amount exceeding $1,000 must not be made by the organisation unless the committee of management:

                     (a)  has satisfied itself:

                              (i)  that the making of the loan, grant or donation would be in accordance with the other rules of the organisation; and

                             (ii)  in the case of a loan—that, in the circumstances, the security proposed to be given for the repayment of the loan is adequate and the proposed arrangements for the repayment of the loan are satisfactory; and

                     (b)  has approved the making of the loan, grant or donation.

             (2)  In spite of subsection (1), the rules of an organisation may provide for a person authorised by the rules to make a loan, grant or donation of an amount not exceeding $3,000 to a member of the organisation if the loan, grant or donation:

                     (a)  is for the purpose of relieving the member or any of the member’s dependants from severe financial hardship; and

                     (b)  is subject to a condition to the effect that, if the committee of management, at the next meeting of the committee, does not approve the loan, grant or donation, it must be repaid as determined by the committee.

             (3)  In considering whether to approve a loan, grant or donation made under subsection (2), the committee of management must have regard to:

                     (a)  whether the loan, grant or donation was made under the rules of the organisation; and

                     (b)  in the case of a loan:

                              (i)  whether the security (if any) given for the repayment of the loan is adequate; and

                             (ii)  whether the arrangements for the repayment of the loan are satisfactory.

             (4)  Nothing in subsection (1) requires the rules of an organisation to make provision of the kind referred to in that subsection in relation to payments made by the organisation by way of provision for, or reimbursement of, out‑of‑pocket expenses incurred by persons for the benefit of the organisation.

             (5)  In this section, a reference to an organisation includes a reference to a branch of an organisation.

             (6)  For the purposes of the application of this Division to a branch of an organisation, the members of the organisation constituting the branch are taken to be members of the branch.

Subdivision B—Agreements between organisations and State unions

150  Definitions

                   In this Subdivision:

ineligible State members, in relation to an organisation, means the members of a State union who, under the eligibility rules of the organisation, are not eligible to be members of the organisation.

State Act means:

                     (a)  the Industrial Relations Act 1996 of New South Wales; or

                     (b)  the Industrial Relations Act 1999 of Queensland; or

                     (c)  the Industrial Relations Act 1979 of Western Australia; or

                     (d)  the Industrial and Employee Relations Act 1994 of South Australia; or

                     (e)  an Act of a State that is prescribed for the purposes of this Subdivision.

State union, in relation to an organisation, means:

                     (a)  an association of employees which is registered under a State Act; or

                     (b)  an association of employees in Tasmania which is neither registered under this Act nor part of an organisation registered under this Act;

and which is composed substantially of persons who, under the eligibility rules of the organisation, are eligible to be members of the organisation.

151  Membership agreements

             (1)  The rules of an organisation of employees may authorise the organisation to enter into agreements in the prescribed form with State unions to the effect that members of the State union concerned who are ineligible State members are eligible to become members of the organisation under the agreement.

             (2)  If, under rules made under subsection (1), an organisation enters into an agreement with a State union, the organisation must lodge a copy of the agreement with FWA.

Note:          This subsection is a civil penalty provision (see section 305).

             (3)  The agreement does not come into force unless and until the General Manager enters particulars of the agreement in the register kept under paragraph 13(1)(a).

             (4)  The General Manager must not enter particulars of the agreement in that register unless he or she has been directed by FWA to do so.

             (5)  FWA must not give such a direction to the General Manager unless FWA is satisfied that the agreement:

                     (a)  is not contrary to:

                            (ia)  Parliament’s intention in enacting this Act (see section 5); or

                              (i)  any object of this Act or the Fair Work Act; or

                             (ii)  any subsisting order made by FWA relating to the organisation’s eligibility rules; or

                            (iii)  any subsisting agreement or understanding of which FWA is aware that deals with the organisation’s entitlement to represent under this Act, or the Fair Work Act, the industrial interests of a particular class or group of employees; and

                     (b)  was entered into only for the purpose of:

                              (i)  overcoming any legal or practical difficulty that might arise in connection with the participation, or possible participation, of ineligible State members in the administration of the organisation or in the conduct of its affairs; or

                             (ii)  encouraging and facilitating an amalgamation between the organisation and another organisation of employees.

             (6)  An organisation is not entitled to represent under this Act, or the Fair Work Act, the industrial interests of persons who are eligible for membership of the organisation only under an agreement entered into under rules made under subsection (1).

             (7)  If a person who became a member of an organisation under an agreement entered into under rules made under subsection (1) later becomes eligible for membership of the organisation under its eligibility rules, the organisation is not entitled to represent the industrial interests of the person until a record of the person’s eligibility is entered in the register kept under paragraph 230(1)(a).

             (8)  If it appears to FWA:

                     (a)  of its own motion; or

                     (b)  on application by an interested person;

that an agreement entered into under rules made under subsection (1) may no longer be operating for a purpose mentioned in subparagraph (5)(b)(i) or (ii), FWA must give to the parties to the agreement an opportunity to make oral or written submissions as to whether the agreement is still operating for such a purpose.

             (9)  If, after considering any such submissions and, in the case of an application under paragraph (8)(b), the matters raised by the applicant, FWA is satisfied that the agreement is no longer operating for such a purpose, FWA may, by order, terminate the agreement.

           (10)  The General Manager must as soon as practicable:

                     (a)  give notice of the termination to each party to the agreement; and

                     (b)  enter particulars of the termination in the register kept under paragraph 13(1)(a).

           (11)  If an organisation and a State union agree, in writing, to terminate an agreement entered into under rules made under subsection (1):

                     (a)  the organisation must lodge with FWA a copy of the agreement to terminate; and

                     (b)  the General Manager must as soon as practicable enter particulars of the termination in the register kept under paragraph 13(1)(a).

Note:          Paragraph (a) is a civil penalty provision (see section 305).

           (12)  The termination of an agreement takes effect when particulars of the termination are entered in the register as mentioned in paragraph (10)(b) or (11)(b) and, when the termination takes effect, persons who became members of the organisation under the agreement (other than a person whose eligibility for membership of the organisation under its eligibility rules is recorded as mentioned in subsection (7)) cease to be members of the organisation.

152  Assets and liabilities agreements

             (1)  The rules of an organisation of employees may authorise the organisation to enter into agreements with State unions setting out arrangements for the management and control of the assets and liabilities of the organisation and the State union concerned.

             (2)  The agreements must be in the prescribed form.

             (3)  If, under rules made under subsection (1), an organisation enters into an agreement with a State union, the organisation must lodge a copy of the agreement with FWA.

Note:          This subsection is a civil penalty provision (see section 305).

             (4)  The agreement does not come into force unless and until the General Manager enters particulars of the agreement in the register kept under paragraph 13(1)(a).

             (5)  The General Manager must not enter particulars of the agreement in that register unless he or she has been directed by FWA to do so.

             (6)  FWA must not give such a direction to the General Manager unless FWA is satisfied that the agreement:

                     (a)  is not contrary to Parliament’s intention in enacting this Act (see section 5) or any object of this Act or the Fair Work Act; and

                     (b)  does not adversely affect the interests of any lessor, lessee or creditor of the organisation or State union.

153  Party to section 152 agreement may apply to Federal Court for orders

             (1)  An organisation or a State union who is a party to an agreement made under section 152 (a section 152 agreement) may apply to the Federal Court for orders:

                     (a)  requiring the other party to comply with the agreement; or

                     (b)  resolving any difficulty in the operation or interpretation of the agreement;

and the Court may make such orders as it thinks fit.

             (2)  In making an order under subsection (1), the Court must have regard to the interests of any lessor, lessee or creditor of the organisation or State union.

             (3)  An order made under subsection (1) has effect despite anything in the rules of the organisation or State union who are the parties to the agreement.

154  Termination of section 152 agreement

             (1)  If an organisation and a State union agree, in writing, to terminate an agreement made under section 152 (a section 152 agreement), the termination has no effect unless the parties apply to the Federal Court for approval under this section and the Court gives its approval.

             (2)  The Court must not approve the termination unless:

                     (a)  the parties have made an agreement (a termination agreement) that makes appropriate provision for the management and control of the assets and liabilities of the organisation and State union after termination of the section 152 agreement; or

                     (b)  the Court makes orders that will, in the Court’s opinion, make appropriate provision for the management and control of the assets and liabilities of the organisation and State union after termination of the section 152 agreement.

             (3)  In determining whether a termination agreement, or orders, make appropriate provision as required by subsection (2), the Court must have regard to the following factors:

                     (a)  the positions of the organisation and State union in relation to their respective assets and liabilities before the section 152 agreement took effect;

                     (b)  the fairness, in all the circumstances, of the manner in which relevant assets and liabilities acquired after the section 152 agreement took effect will be dealt with after termination of the agreement;

                     (c)  how the interests of lessors, lessees or creditors of the organisation and the State union will be affected by the termination and subsequent arrangements;

                     (d)  any other factor that the Court considers relevant.

             (4)  If the Court approves a termination agreement, the Court must direct the General Manager to enter particulars of the agreement in the register kept under paragraph 13(1)(a), and particulars of any orders made by the Court that relate to the agreement.

             (5)  A termination agreement takes effect on the day specified by the Court. The day specified by the Court must not be a day earlier than the day on which the Court approves the agreement.

Subdivision BA—Branches of organisations

154A  Branch autonomy

                   The rules of an organisation may provide for the autonomy of a branch in matters affecting members of the branch only and matters concerning the participation of the branch in a State workplace relations system.

154B  Branch funds

             (1)  The rules of an organisation may provide for a fund of the branch that is to be managed and controlled under rules of the branch, and may make provision in relation to the fund in accordance with subsection (2).

             (2)  The branch fund may consist of:

                     (a)  real or personal property of which the branch of the organisation, by the rules or by any established practice not inconsistent with the rules, has, or in the absence of a limited term lease, bailment or arrangement, would have, the right of custody, control or management; and

                     (b)  the amounts of entrance fees, subscriptions, fines, fees or levies received by a branch, less so much of the amounts as is payable by the branch to the organisation; and

                     (c)  interest, rents, dividends or other income derived from the investment or use of the fund; and

                     (d)  a superannuation or long service leave or other fund operated or controlled by the branch for the benefit of its officers or employees; and

                     (e)  a sick pay fund, accident pay fund, funeral fund, tool benefit fund or similar fund operated or controlled by the branch for the benefit of its members; and

                      (f)  property acquired wholly or mainly by expenditure of the money of the fund or derived from other assets of the fund; and

                     (g)  the proceeds of a disposal of parts of the fund.

Subdivision C—Miscellaneous

155  Exercise of FWA’s powers under this Division

                   The powers of FWA under this Division are exercisable only by the President or a Deputy President.

 

Division 5—Alteration of rules and evidence of rules

156  General Manager may determine alterations of rules

             (1)  Where the rules of an organisation do not, in the General Manager’s opinion, make provision required by this Act, the General Manager may, by instrument, after giving the organisation an opportunity, as prescribed, to be heard on the matter, determine such alterations of the rules as are, in the General Manager’s opinion, necessary to bring them into conformity with this Act.

             (2)  Alterations determined under subsection (1) take effect on the date of the instrument.

157  FWA may determine alteration of rules where there has been a breach of an undertaking

             (1)  If:

                     (a)  in the course of an organisation being registered under section 19, an undertaking was given under subsection 19(2) to avoid demarcation disputes that might otherwise arise from an overlap between its eligibility rules and the eligibility rules of another organisation; and

                     (b)  the first‑mentioned organisation has breached the undertaking;

FWA may, by instrument, determine such alterations of the rules of the organisation as are, in FWA’s opinion, necessary to remove the overlap.

             (2)  FWA must give the organisation and the other organisation an opportunity, as prescribed, to be heard on the matter.

             (3)  Alterations determined under subsection (1) take effect on the date of the instrument.

158  Change of name or alteration of eligibility rules of organisation

             (1)  A change in the name of an organisation, or an alteration of the eligibility rules of an organisation, does not take effect unless:

                     (a)  in the case of a change in the name of the organisation—FWA consents to the change under this section; or

                     (b)  in the case of an alteration of the eligibility rules of the organisation:

                              (i)  FWA consents to the alteration under this section; or

                             (ii)  the General Manager consents to the alteration under section 158A.

             (2)  FWA may consent to a change or alteration in whole or part, but must not consent unless FWA is satisfied that the change or alteration has been made under the rules of the organisation.

             (3)  FWA must not consent to a change in the name of an organisation unless FWA is satisfied that the proposed new name of the organisation:

                     (a)  is not the same as the name of another organisation; and

                     (b)  is not so similar to the name of another organisation as to be likely to cause confusion.

             (4)  FWA must not consent to an alteration of the eligibility rules of an organisation if, in relation to persons who would be eligible for membership because of the alteration, there is, in the opinion of FWA, another organisation:

                     (a)  to which those persons could more conveniently belong; and

                     (b)  that would more effectively represent those members.

             (5)  However, subsection (4) does not apply if FWA accepts an undertaking from the organisation seeking the alteration that FWA considers appropriate to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of that organisation and the eligibility rules of the other organisation.

             (6)  FWA may refuse to consent to an alteration of the eligibility rules of an organisation if satisfied that the alteration would contravene an agreement or understanding to which the organisation is a party and that deals with the organisation’s right to represent under this Act and the Fair Work Act the industrial interests of a particular class or group of persons.

             (7)  FWA may also refuse to consent to an alteration of the eligibility rules of an organisation if it:

                     (a)  is satisfied that the alteration would change the effect of any order made by FWA under section 133 about the right of the organisation to represent under this Act and the Fair Work Act the industrial interests of a particular class or group of employees; and

                     (b)  considers that such a change would give rise to a serious risk of a demarcation dispute which would prevent, obstruct or restrict the performance of work in an industry, or harm the business of an employer.

             (8)  Subsections (6) and (7) do not limit the grounds on which FWA may refuse to consent to an alteration of the eligibility rules of an organisation.

             (9)  Where FWA consents, under subsection (1), to a change or alteration, the change or alteration takes effect on:

                     (a)  where a date is specified in the consent—that date; or

                     (b)  in any other case—the day of the consent.

           (10)  This section does not apply to a change in the name, or an alteration of the eligibility rules, of an organisation that is:

                     (a)  determined by FWA under subsection 163(7); or

                     (b)  proposed to be made for the purposes of an amalgamation under Part 2 of Chapter 3 or Division 4 of Part 7 of Chapter 11; or

                     (c)  proposed to be made for the purposes of a withdrawal from amalgamation under Part 3 of Chapter 3.

158A  Alteration of eligibility rules of organisation by General Manager

             (1)  The General Manager must, on application by an organisation in accordance with subsection (2), consent to an alteration of the eligibility rules of the organisation to extend them to apply to persons within the eligibility rules of an association of employers or employees that is registered under a State or Territory industrial law, if the General Manager is satisfied:

                     (a)  that the alteration has been made under the rules of the organisation; and

                     (b)  that the organisation is a federal counterpart of the association; and

                     (c)  that the alteration will not extend the eligibility rules of the organisation beyond those of the association; and

                     (d)  that the alteration will not apply outside the limits of the State or Territory for which the association is registered; and

                     (e)  as to such other matters (if any) as are prescribed by the regulations.

Note:          If the General Manager consents to the alteration, FWA may make orders that reflect State representation orders (see section 137F).

             (2)  The application must not be made before 1 January 2011, or such later day as the Minister declares in writing.

             (3)  A declaration made under subsection (2) is a legislative instrument, but section 42 (disallowance) of the Legislative Instruments Act 2003 does not apply to the declaration.

             (4)  If the General Manager consents, under subsection (1), to an alteration, the alteration takes effect on:

                     (a)  if a day is specified in the consent—that day; or

                     (b)  in any other case—the day of the consent.

159  Alteration of other rules of organisation

             (1)  An alteration of the rules (other than the eligibility rules) of an organisation does not take effect unless particulars of the alteration have been lodged with FWA and the General Manager has certified that, in his or her opinion, the alteration:

                     (a)  complies with, and is not contrary to, this Act, the Fair Work Act, modern awards and enterprise agreements; and

                     (b)  is not otherwise contrary to law; and

                     (c)  has been made under the rules of the organisation.

             (2)  Where particulars of an alteration of the rules (other than the eligibility rules) of an organisation have been lodged with FWA, the General Manager may, with the consent of the organisation, amend the alteration for the purpose of correcting a typographical, clerical or formal error.

             (3)  An alteration of rules that has been certified under subsection (1) takes effect on the day of certification.

             (4)  This section does not apply in relation to an alteration of the rules of an organisation that is:

                     (a)  proposed to be made in relation to an application for an exemption from subsection 144(1); or

                     (b)  determined or certified by the General Manager under subsection 144(7) or section 156, 163, 246, 247 or 249; or

                     (c)  proposed to be made for the purpose of an amalgamation under Part 2 of Chapter 3 or Division 4 of Part 7 of Chapter 11; or

                     (d)  proposed to be made for the purposes of a withdrawal from amalgamation under Part 3 of Chapter 3.

160  Certain alterations of rules to be recorded

                   Where there has been a change in the name of an organisation, or an alteration of the eligibility rules of an organisation, under this Act, the General Manager must:

                     (a)  immediately enter, in the register kept under paragraph 13(1)(a), particulars of the change or alteration, and the date of effect of the change or alteration; and

                     (b)  as soon as practicable after the organisation produces its certificate of registration to the General Manager, amend the certificate accordingly and return it to the organisation.

161  Evidence of rules

                   In proceedings under this Act or the Fair Work Act, a copy of the rules of an organisation certified by the General Manager to be a true and correct copy is evidence of the rules of the organisation.

162  Powers of FWA

                   The powers of FWA under this Division are exercisable only by the President or a Deputy President.

 

Part 3—Validity and performance of rules etc

  

163  Rules contravening section 142

Application for order declaring rules contravene section 142

             (1)  A member, or an applicant for membership, of an organisation may apply to the Federal Court for an order under this section in relation to the organisation.

             (2)  If the application is made by a member, the order under this section may declare that the whole or a part of a rule of an organisation contravenes section 142 or that the rules of an organisation contravene section 142 in a particular respect.

             (3)  If the application is made by an applicant for membership, the order under this section may declare that the whole or a part of a rule of an organisation contravenes paragraph 142(1)(c) or (d) or that the rules of an organisation contravene paragraph 142(1)(c) or (d) in a particular respect.

             (4)  An organisation in relation to which an application is made under this section must be given an opportunity of being heard by the Court.

             (5)  The Court may, without limiting any other power of the Court to adjourn proceedings, adjourn proceedings in relation to an application under this section for such period and on such terms and conditions as it considers appropriate for the purpose of giving the organisation an opportunity to alter its rules.

Effect of order

             (6)  Where an order under this section declares that the whole or a part of a rule contravenes section 142, the rule or that part of the rule, as the case may be, is taken to be void from the date of the order.

Appropriate authority may alter organisation’s rules

             (7)  Where:

                     (a)  the Court makes an order declaring as mentioned in subsection (2) or (3) in relation to the rules of an organisation; and

                     (b)  at the end of 3 months from the making of the order, the rules of the organisation have not been altered in a manner that, in the opinion of the appropriate authority, brings them into conformity with section 142 in relation to the matters that gave rise to the order;

the appropriate authority must, after giving the organisation an opportunity, as prescribed, to be heard on the matter, determine, by instrument, such alterations of the rules as will, in the appropriate authority’s opinion, bring the rules into conformity with that section in relation to those matters.

Note:          For the meaning of appropriate authority see subsection (12).

             (8)  The appropriate authority may, on the application of the organisation made within the period of 3 months referred to in subsection (7) or within any extension of the period, extend, or further extend, the period.

             (9)  Alterations determined under subsection (7) take effect on the date of the instrument.

Court may make interim orders

           (10)  At any time after a proceeding under this section has been instituted, the Court may make any interim orders that it considers appropriate in relation to a matter relevant to the proceeding.

           (11)  An order under subsection (10) continues in force, unless expressed to operate for a shorter period or sooner discharged, until the completion of the proceeding concerned.

Definitions

           (12)  In this section:

appropriate authority means:

                     (a)  in relation to the eligibility rules of an organisation—the President or a Deputy President; or

                     (b)  in relation to the other rules of an organisation—the General Manager.

           (13)  In this section, a reference to a rule, or the rules, of an organisation includes a reference to a rule, or the rules, of a branch of an organisation.

164  Directions for performance of rules

Application for order directing performance of rules

             (1)  A member of an organisation may apply to the Federal Court for an order under this section in relation to the organisation.

Note:          For the meaning of order under this section, see subsection (9).

             (2)  Before making an order under this section, the Court must give any person against whom the order is sought an opportunity of being heard.

             (3)  The Court may refuse to deal with an application for an order under this section unless it is satisfied that the applicant has taken all reasonable steps to try to have the matter that is the subject of the application resolved within the organisation.

Court may make interim orders

             (4)  At any time after the making of an application for an order under this section, the Court may make any interim orders that it considers appropriate and, in particular, orders intended to further the resolution within the organisation concerned of the matter that is the subject of the application.

             (5)  An order under subsection (4) continues in force, unless expressed to operate for a shorter period or sooner discharged, until the completion of the proceeding concerned.

Definition

             (9)  In this section:

order under this section means an order giving directions for the performance or observance of any of the rules of an organisation by any person who is under an obligation to perform or observe those rules.

164A  Directions to rectify breach of rule of organisation

Application for order

             (1)  A member of an organisation may apply to the Federal Court for an order under subsection (4) in relation to the organisation.

             (2)  Before making the order, the Court must give any person against whom the order is sought an opportunity of being heard.

Conditions for making order

             (3)  The Court may make an order under subsection (4) in relation to an organisation if the Court is satisfied that:

                     (a)  a person was under an obligation to perform or observe a rule or rules of the organisation; and

                     (b)  the person breached the rule or rules; and

                     (c)  the person acted unreasonably in so breaching the rule or rules.

Nature of order

             (4)  Subject to section 164B, the Court may make an order directing one or more persons (who may be, or include, the person who breached the rule or rules) to do specified things that will, in the opinion of the Court, as far as is reasonably practicable, place the organisation in the position in which it would have been if the breach of the rule or rules had not occurred.

             (5)  The Court may make the order whether or not, at the time of making the order, the person is a member or officer of the organisation.

164B  Orders under sections 164 and 164A

Order must not invalidate election etc.

             (1)  An order must not be made under section 164 or 164A that would have the effect of treating as invalid an election to an office in an organisation or a step in relation to such an election.

Order must not require compensation

             (2)  An order under section 164A does not include an order directing one or more persons to compensate an organisation for any loss or damage suffered by the organisation caused by the breach of the rule or rules.

Note:          An application for a compensation order may be made under Part 2 of Chapter 10.

Court may declare that rules contravene section 142

             (3)  Where the Court, in considering an application under section 164 or 164A, finds that the whole or a part of a rule of the organisation concerned contravenes section 142 or that the rules of the organisation concerned contravene that section in a particular respect, the Court may, by order, make a declaration to that effect.

             (4)  Section 163 (other than subsections (1) to (5) (inclusive)) applies in relation to an order made under subsection (3) of this section as if the order had been made under section 163.

Definition

             (5)  In this section:

election includes a purported election that is a nullity.

 

Chapter 6—Membership of organisations

Part 1—Simplified outline of Chapter

  

165  Simplified outline

 

Part 2—Entitlement to membership

  

166  Entitlement to become and to remain a member

Employee organisations

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

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

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

Note 1:       Rules of an organisation must provide for the circumstances in which a person ceases to be a member of an organisation (see subparagraph 141(1)(b)(vii)).

Note 2:       If a member fails to pay his or her membership dues for 24 months, this may result in the person ceasing to be a member, regardless of the rules of the organisation (see section 172).

Note 3:       See also section 168, which deals with a special case of entitlement to membership (person treated as having been a member).

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

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

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

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

Employer organisations

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

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

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

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

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

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

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

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

This section overrides inconsistent rules

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

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

Who may apply to Federal Court

             (1)  Where a question arises as to the entitlement under section 166 of a person:

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

                     (b)  to remain a member of an organisation;

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

                     (c)  the person;

                     (d)  the organisation concerned.

Court may make orders relating to its declaration

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

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

                     (a)  an order requiring the organisation concerned to treat a person to whom subsection 166(1) or (4) applies as being a member of the organisation; and

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

Effect of orders

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

             (5)  Where:

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

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

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

Court to give certain people opportunity to be heard

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

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

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

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

             (1)  Where:

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

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

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

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

                     (a)  the person; or

                     (b)  the organisation;

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

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

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

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

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

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

169  Request by member for statement of membership

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

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

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

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

Note:          This section is a civil penalty provision (see section 305).

170  Rectification of register of members

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

 

Part 3—Termination of membership

  

171  Federal Court may order that persons cease to be members of organisations

                   The Federal Court may, on the application of an organisation, order that a person’s membership of that organisation or another organisation is to cease from a day, and for a period, specified in the order.

171A  Cessation of membership if member is not an employee etc.

             (1)  If a person is a member of an organisation and the person is not, or is no longer:

                     (a)  if the organisation is an association of employers—a person of a kind mentioned in paragraph 18A(3)(a), (b), (c) or (d); or

                     (b)  if the organisation is an association of employees—a person of a kind mentioned in paragraph 18B(3)(a), (b), (c) or (d); or

                     (c)  if the organisation is an enterprise association—a person of a kind mentioned in paragraph 18C(3)(a), (b), (c) or (d);

the person’s membership of the organisation immediately ceases.

             (2)  Subsection (1) has effect despite anything in the rules of the organisation.

172  Non‑financial members to be removed from the register

             (1)  If:

                     (a)  the rules of an organisation require a member to pay dues in relation to the person’s membership of the organisation; and

                     (b)  the member has not paid the amount; and

                     (c)  a continuous period of 24 months has elapsed since the amount became payable; and

                     (d)  the member’s name has not been removed from the register kept by the organisation under paragraph 230(1)(a);

the organisation must remove the name and postal address of the member from the register within 12 months after the end of the 24 month period.

Note:          This subsection is a civil penalty provision (see section 305).

             (2)  In calculating a period for the purposes of paragraph (1)(c), any period in relation to which the member was not required by the rules of the organisation to pay the dues is to be disregarded.

             (3)  A person whose name is removed from the register under this section ceases to be a member of the organisation on the day his or her name is removed. This subsection has effect in spite of anything in the rules of the organisation.

Note:          A non‑financial member’s membership might cease and his or her name be removed from the register earlier than is provided for by this section if the organisation’s own rules provide for this to happen.

173  No entrance fee if person re‑joins within 6 months

             (1)  If:

                     (a)  a person applies for membership of an organisation within 6 months after the person’s membership has ceased under section 172; and

                     (b)  the application is accepted by the organisation;

the organisation must not require the person to pay any fee associated with a new membership (other than membership dues) in relation to the membership for which the person has applied.

             (2)  This section is not to be taken to prevent an organisation requiring (whether by means of its rules or otherwise) payment of outstanding dues in order for a person to maintain continuity of financial membership.

174  Resignation from membership

             (1)  A member of an organisation may resign from membership by written notice addressed and delivered to a person designated for the purpose in the rules of the organisation or a branch of the organisation.

Note:          The notice of resignation can be given electronically if the organisation’s rules allow for this (see section 9 of the Electronic Transactions Act 1999).

             (2)  A notice of resignation from membership of an organisation takes effect:

                     (a)  where the member ceases to be eligible to become a member of the organisation:

                              (i)  on the day on which the notice is received by the organisation; or

                             (ii)  on the day specified in the notice, which is a day not earlier than the day when the member ceases to be eligible to become a member;

                            whichever is later; or

                     (b)  in any other case:

                              (i)  at the end of 2 weeks, or such shorter period as is specified in the rules of the organisation, after the notice is received by the organisation; or

                             (ii)  on the day specified in the notice;

                            whichever is later.

             (3)  Any dues payable but not paid by a former member of an organisation, in relation to a period before the member’s resignation from the organisation took effect, may be sued for and recovered in the name of the organisation, in a court of competent jurisdiction, as a debt due to the organisation.

             (4)  A notice delivered to the person mentioned in subsection (1) is taken to have been received by the organisation when it was delivered.

             (5)  A notice of resignation that has been received by the organisation is not invalid because it was not addressed and delivered in accordance with subsection (1).

             (6)  A resignation from membership of an organisation is valid even if it is not effected in accordance with this section if the member is informed in writing by or on behalf of the organisation that the resignation has been accepted.

Note:          Regulations may require employers who offer payroll deduction facilities to inform employees that cessation of payroll deduction by an employee does not constitute resignation (see section 359).

 

Part 4—False information, disputes and arrears of dues

  

175  False representation as to membership of organisation

                   A person must not, in an application made under this Act or the Fair Work Act, make a statement about the person’s membership of an organisation if the person knows, or is reckless as to whether, the statement is false or misleading.

Note:          This section is a civil penalty provision (see section 305).

176  False representation about resignation from organisation

                   A person (the first person) must not provide information about resignation from an organisation to a member, or a person eligible to become a member, of the organisation if the person knows, or is reckless as to whether, the information is false or misleading.

Note:          This section is a civil penalty provision (see section 305).

177  Disputes between organisations and members

             (1)  A dispute between an organisation and any of its members is to be decided under the rules of the organisation.

             (2)  Any fine, fee, levy or dues payable to an organisation by a member in relation to a period after the organisation was registered may be sued for and recovered, in the name of the organisation, as a debt due to the organisation, in a court of competent jurisdiction.

             (3)  A court of competent jurisdiction may, on application brought in the name of an organisation, order the payment by a member of any contribution (not exceeding $20) to a penalty incurred or money payable by the organisation under a modern award, order or enterprise agreement.

178  Recovery of arrears

             (1)  In spite of subsection 177(2), legal proceedings for the recovery of an amount payable by a person in relation to the person’s membership of an organisation must not be commenced after the end of the period of 12 months starting on the day on which the amount became payable.

             (2)  The amount ceases to be payable at the end of the period if legal proceedings to recover the amount have not been commenced by then.

179  Liability for arrears

             (1)  Where a person has ceased to be eligible to become a member of an organisation and that person has not actively participated in the affairs of the organisation since that time, those circumstances are a defence to an action by the organisation for arrears of dues payable from the time when the person ceased to be so eligible.

             (2)  Where such a defence is successful, that person is taken to have ceased to be a member from the time that the person ceased to be so eligible.

 

Part 5—Conscientious objection to membership

  

180  Conscientious objection to membership of organisations

             (1)  Where a natural person:

                     (a)  on application made to the General Manager, satisfies the General Manager:

                              (i)  in the case of a person who is an employer or is otherwise eligible to join an organisation of employers—that the person’s conscientious beliefs do not allow the person to be a member of an association of the kind described in paragraph 18(a); or

                             (ii)  in the case of a person who is an employee or is otherwise eligible to join an organisation of employees—that the person’s conscientious beliefs do not allow the person to be a member of an association of the kind described in paragraph 18(b) or (c); and

                     (b)  pays the prescribed fee to the General Manager;

the General Manager must issue to the person a certificate to that effect in the prescribed form.

             (2)  An appeal does not lie to FWA under section 604 of the Fair Work Act against a decision of the General Manager to issue a certificate under subsection (1).

             (3)  Subject to subsection (4), a certificate under subsection (1) remains in force for the period (not exceeding 12 months) specified in the certificate, but may, as prescribed, be renewed from time to time by the General Manager for such period (not exceeding 12 months) as the General Manager considers appropriate.

             (4)  Where:

                     (a)  the General Manager becomes aware of a matter that was not known to the General Manager when a certificate was issued by the General Manager to a person under subsection (1); and

                     (b)  if the General Manager had been aware of the matter when the application for the certificate was being considered, the General Manager would not have issued the certificate;

the General Manager may, after giving the person an opportunity, as prescribed, to show cause why the certificate should not be revoked, revoke the certificate.

             (6)  In this section:

appropriate organisation, in relation to a person who has made an application under subsection (1), means the organisation that, in the opinion of the General Manager dealing with the application, would, but for the person’s conscientious beliefs, be the appropriate organisation for the person to join having regard to:

                     (a)  in the case of a person who is an employer—the industry in relation to which the person is an employer; or

                     (b)  in the case of a person who is otherwise eligible to join an organisation of employers—the business carried on by the person; or

                     (c)  in the case of a person who is an employee—the past employment (if any), and the future prospects of employment, of the person; or

                     (d)  in the case of a person who is otherwise eligible to join an organisation of employees—the work done by the person or the enterprise in which the person works.

conscientious beliefs means any conscientious beliefs, whether the grounds for the beliefs are or are not of a religious character and whether the beliefs are or are not part of the doctrine of any religion.

prescribed fee, in relation to a person who has made an application under subsection (1), means a fee equal to the annual subscription that would be payable by the person if the person were a member of the appropriate organisation.

 

Chapter 7—Democratic control

Part 1—Simplified outline of Chapter

  

181  Simplified outline

 

Part 2—Conduct of elections for office and other positions

  

182  Conduct by AEC

Elections for office

             (1)  Each election for an office in an organisation, or branch of an organisation, must be conducted by the AEC. The expenses of conducting such an election are to be borne by the Commonwealth.

Note:          For the meaning of office, see section 9.

             (2)  Subsection (1) does not apply in relation to an election for an office in an organisation or branch while an exemption granted to the organisation or branch, as the case may be, under section 186 is in force in relation to elections in the organisation or branch or an election for the particular office.

Elections for other positions

             (3)  If an organisation or branch of an organisation has made a request under section 187 in relation to an election for a position other than an office, the AEC must conduct the election.

183  Application for organisation or branch to conduct its elections for office

             (1)  A committee of management of an organisation or branch of an organisation may lodge with FWA an application for the organisation or branch, as the case may be, to be exempted from subsection 182(1) in relation to elections for offices, or an election for a particular office, in the organisation or branch.

             (2)  An application may not be made by a committee of management of an organisation or branch of an organisation unless the committee of management:

                     (a)  has resolved to make the application; and

                     (b)  has notified the members of the organisation or branch, as prescribed, of the making of the resolution.

             (3)  An application under subsection (1) must be accompanied by a declaration by a member of the committee of management concerned stating that subsection (2) has been complied with.

             (4)  Where an application has been made under subsection (1), the General Manager must cause a notice setting out details of the application to be published, as prescribed, for the purpose of bringing the notice to the attention of members of the organisation or branch concerned.

             (5)  Where the rules of an organisation require an office to be filled by an election by the members, or by some of the members, of a single branch of the organisation, an election to fill the office is taken to be an election for the branch.

184  Objections to application to conduct elections for office

             (1)  Objection may be made to an application under subsection 183(1) by a member of the organisation or branch of the organisation in relation to which the application was made.

             (2)  The General Manager must, as prescribed, hear the application and any objections duly made.

185  Threats etc. in relation to section 184 objections

             (1)  A person commits an offence if the person uses, causes or inflicts any violence, injury, punishment, damage, loss or disadvantage to another person because the other person has lodged an objection under subsection 184(1).

Maximum penalty:    30 penalty units.

             (2)  A person commits an offence if the person:

                     (a)  gives, or offers or promises to give, any property or benefit of any kind with the intention of influencing or affecting another person because the other person proposes to lodge, or has lodged, an objection under subsection 184(1); or

                     (b)  asks for or obtains, or offers or agrees to ask for or obtain, any property or benefit of any kind (whether for that person or another person), on the understanding that the lodging of an objection under subsection 184(1) will be influenced or affected in any way.

Maximum penalty:    30 penalty units.

186  General Manager may permit organisation or branch to conduct its elections for office

             (1)  Where an application in relation to an organisation or branch has been lodged under subsection 183(1) and, after any objections duly made have been heard, the General Manager is satisfied:

                     (a)  that the rules of the organisation or branch comply with the requirements of this Act relating to the conduct of elections for office; and

                     (b)  that, if the organisation or branch is exempted from subsection 182(1), the elections for the organisation or branch, or the election for the particular office, as the case may be, will be conducted:

                              (i)  under the rules of the organisation or branch, as the case may be, and this Act; and

                             (ii)  in a manner that will afford members entitled to vote at such elections or election an adequate opportunity of voting without intimidation;

the General Manager may exempt the organisation or branch from subsection 182(1) in relation to elections for the organisation or branch, or the election for the particular office, as the case may be.

             (2)  The General Manager may revoke an exemption granted to an organisation or branch under subsection (1):

                     (a)  on application by the committee of management of the organisation or branch; or

                     (b)  if the General Manager:

                              (i)  is no longer satisfied as mentioned in subsection (1); and

                             (ii)  has given the committee of management of the organisation or branch an opportunity, as prescribed, to show cause why the exemption should not be revoked.

187  Organisation may ask AEC to conduct elections for positions other than offices

             (1)  If the rules of an organisation or branch of an organisation require an election to be held for a position other than an office in the organisation or branch, the organisation or branch, as the case may be, may request the AEC to conduct the election.

Note:          For the meaning of office, see section 9.

             (2)  The request must be:

                     (a)  in writing; and

                     (b)  signed by an officer of the organisation or branch who is authorised to do so by the committee of management of the organisation or branch; and

                     (c)  given to the AEC.

             (3)  A copy of the request must also be lodged with FWA at the same time as the prescribed information in relation to the election is lodged (see section 189).

188  Declaration envelopes etc. to be used for postal ballots

                   If the rules of an organisation provide for elections for office by postal ballot, a vote in the election cannot be counted unless the ballot paper on which it is recorded is returned as follows:

                     (a)  the ballot paper must be in the declaration envelope provided to the voter with the ballot paper;

                     (b)  the declaration envelope must be in another envelope that is in the form prescribed by the regulations.

189  General Manager to arrange for conduct of elections

             (1)  An organisation or branch of an organisation must lodge with FWA the prescribed information in relation to an election that is to be conducted by the AEC.

             (2)  The prescribed information must be lodged before the prescribed day or such later day as the General Manager allows.

Note:          This subsection is a civil penalty provision (see section 305).

             (3)  If:

                     (a)  the prescribed information is lodged with FWA by the organisation or branch (whether or not before the prescribed day or the later day allowed by the General Manager); and

                     (b)  the General Manager is satisfied that an election is required to be held under the rules of the organisation or branch; and

                     (c)  if the election is not an election for an office—the organisation or branch has made a request under section 187;

the General Manager must arrange for the conduct of the election by the AEC.

190  Organisation or branch must not assist one candidate over another

                   An organisation or branch commits an offence if it uses, or allows to be used, its property or resources to help a candidate against another candidate in an election under this Part for an office or other position.

Maximum penalty:    100 penalty units.

191  Organisation to provide returning officer with copy of register

             (1)  A person (the returning officer) conducting an election under this Part for an office or other position in an organisation, or branch of an organisation, may give a written request to an officer or employee of the organisation or branch to make available the register of members, or part of the register, kept by the organisation under section 230, to the returning officer for the purposes of the ballot.

             (2)  An officer or employee of the organisation or branch commits an offence if he or she fails to comply with a request under subsection (1).

Maximum penalty:    30 penalty units.

             (3)  Subsection (2) does not apply if the officer or employee complied with the request as promptly as he or she was capable.

Note:          A defendant bears an evidential burden in relation to the matter mentioned in subsection (3).

             (4)  An offence against subsection (2) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (5)  If the register, or the relevant part of the register, is kept in electronic form, the returning officer may require the register to be made available in that form.

             (6)  A request under subsection (1) must specify the period within which the register must be made available. The period must not be less than 7 days after the request is given.

192  Declaration by secretary etc. of organisation

             (1)  If:

                     (a)  a returning officer makes a request under section 191 in relation to the organisation’s register; and

                     (b)  the returning officer gives written notice of the request to the secretary or other prescribed officer of the organisation or branch concerned;

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 with FWA, 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).

193  Provisions applicable to elections conducted by AEC

             (1)  If an electoral official is conducting an election, or taking a step in relation to an election, for an office or other position in an organisation, or branch of an organisation, the electoral official:

                     (a)  subject to paragraph (b), must comply with the rules of the organisation or branch; and

                     (b)  may, in spite of anything in the rules of the organisation or branch, take such action, and give such directions, as the electoral official considers necessary:

                              (i)  to ensure that no irregularities occur in or in relation to the election; or

                             (ii)  to remedy any procedural defects that appear to the electoral official to exist in the rules; or

                            (iii)  to ensure the security of ballot papers and envelopes that are for use, or used, in the election.

             (2)  A person commits an offence if the person does not comply with a direction under subsection (1).

Maximum penalty:    30 penalty units.

             (3)  Subsection (2) does not apply so far as the person is not capable of complying.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) 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)  An offence against subsection (2) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (6)  An election for an office or other position conducted by an electoral official, or step taken in relation to such an election, is not invalid merely because of a breach of the rules of the organisation or branch because of:

                     (a)  action taken under subsection (1); or

                     (b)  an act done in compliance with a direction under subsection (1).

             (7)  If an electoral official conducting, or taking a step in connection with, an election for an office or other position:

                     (a)  dies or becomes unable to complete the conduct of the election or the taking of the step; or

                     (b)  ceases to be qualified to conduct the election or to take the step;

the Electoral Commissioner must arrange for the completion of the conduct of the election, or the taking of the step, by another electoral official.

194  Hindering or obstructing electoral official or other person

                   A person commits an offence if the person hinders or obstructs:

                     (a)  an electoral official in the performance of functions in relation to an election for an office or other position in an organisation or branch of an organisation; or

                     (b)  any other person in complying with a direction under subsection 193(1).

Maximum penalty:    30 penalty units.

195  Improper interference with election process

             (1)  This section applies in relation to an election for an office or other position in an organisation or branch of an organisation.

Interference with ballot papers

             (2)  A person commits an offence if the person:

                     (a)  impersonates another person with the intention of:

                              (i)  securing a ballot paper to which the impersonator is not entitled; or

                             (ii)  casting a vote; or

                     (b)  does an act that results in a ballot paper or envelope being destroyed, defaced, altered, taken or otherwise interfered with; or

                     (c)  fraudulently puts a ballot paper or other paper:

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

                             (ii)  into the post; or

                     (d)  delivers a ballot paper or other paper to a person other than a person receiving ballot papers for the purposes of the ballot; or

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

                      (f)  records more than one vote; or

                     (g)  forges a ballot paper or envelope, or utters a ballot paper or envelope that the person knows to be forged; or

                     (h)  provides a ballot paper without authority; or

                      (i)  obtains a ballot paper which the person is not entitled to obtain; or

                      (j)  has possession of a ballot paper which the person is not entitled to possess; or

                     (k)  does an act that results in a ballot box or other ballot receptacle being destroyed, taken, opened or otherwise interfered with.

Maximum penalty:    30 penalty units.

Threats in relation to votes, candidature etc.

             (3)  A person commits an offence if the person threatens, offers or suggests, or uses, causes or inflicts, any violence, injury, punishment, damage, loss or disadvantage with the intention of influencing or affecting:

                     (a)  any candidature or withdrawal of candidature; or

                     (b)  any vote or omission to vote; or

                     (c)  any support or opposition to any candidate; or

                     (d)  any promise of any vote, omission, support or opposition.

Maximum penalty:    30 penalty units.

Offers of bribes

             (4)  A person commits an offence if the person gives, or promises or offers to give, any property or benefit of any kind to a person with the intention of influencing or affecting any of the following:

                     (a)  any candidature or withdrawal of candidature;

                     (b)  any vote or omission to vote;

                     (c)  any support or opposition to any candidate;

                     (d)  any promise of any vote, omission, support or opposition.

Maximum penalty:    30 penalty units.

Acceptance of bribes

             (5)  A person commits an offence if the person asks for or obtains, or offers or agrees to ask for or obtain, any property or benefit of any kind (whether for that person or another person), on the understanding that any of the following will be influenced or affected in any way:

                     (a)  any candidature or withdrawal of candidature;

                     (b)  any vote or omission to vote;

                     (c)  any support or opposition to any candidate;

                     (d)  any promise of any vote, omission, support or opposition.

Maximum penalty:    30 penalty units.

Secrecy of vote

             (6)  A person (the relevant person) commits an offence:

                     (a)  if the relevant person requests, requires or induces another person to show a ballot paper to the relevant person, or permits the relevant person to see a ballot paper, in such a manner that the relevant person can see the vote, while the ballot paper is being marked or after it has been marked; or

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

Maximum penalty:    30 penalty units.

196  Death of candidate

                   In spite of anything in the rules of an organisation or branch of an organisation, where:

                     (a)  2 or more candidates are nominated for an election in relation to an office in the organisation or branch; and

                     (b)  one of those candidates dies before the close of the ballot;

the election must be discontinued and a new election held.

197  Post‑election report by AEC

Requirement for AEC to make report

             (1)  After the completion of an election conducted under this Part by the AEC, the AEC must give a written report on the conduct of the election to:

                     (a)  the General Manager; and

                     (b)  the organisation or branch for whom the election was conducted.

Note:          The AEC may be able, in the same report, to report on more than one election it has conducted for an organisation. However, regulations made under paragraph 359(2)(c) may impose requirements about the manner and timing of reports.

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

Contents of report—register of members

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

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

                     (b)  in the case of a register kept by an organisation of employees—an unusually large proportion of members’ addresses that were workplace addresses;

this fact must be included in the report, together with a reference to any relevant model rules which, in the opinion of the AEC, could assist the organisation or branch to address this matter.

Note:          Model rules are relevant only to the conduct of elections for office, not for elections for other positions (see section 147).

Contents of report—difficult rules

             (4)  If the report identifies a rule of the organisation or branch that, in the AEC’s opinion, was difficult to interpret or apply in relation to the conduct of the election, the report must also refer to any relevant model rules, which in the opinion of the AEC, could assist the organisation or branch to address this matter.

Note:          For model rules, see section 147.

Subsection (3) relevant only for postal ballots

             (5)  Subsection (3) applies only in relation to elections conducted by postal ballot.

Note:          An organisation can obtain an exemption from the requirement to hold elections for office by postal ballot (see section 144).

198  Organisation to respond to adverse report on rules

Organisation must respond to “difficult rules” report

             (1)  If an organisation or branch is given a post‑election report under section 197 that identifies a rule that was difficult to interpret or apply, the organisation or branch must, within 30 days, give a written response to the AEC on that aspect of the report.

Note:          This subsection is a civil penalty provision (see section 305).

             (2)  The response must specify whether the organisation or branch intends to take any action in relation to the rule, and if so, what action it intends to take.

Organisation must make its response available to members

             (3)  The organisation or branch must also make available to its members the part of the report dealing with the difficult rule or rules (the relevant extract) and the organisation’s or branch’s response to it.

             (4)  The relevant extract must be made available to members no later than the day on which the response is to be made available by the organisation or branch to members.

Note:          This subsection is a civil penalty provision (see section 305).

             (5)  The response must be made available to members:

                     (a)  if the response is not to be published in the next edition of the organisation or branch journal—within 30 days after it is given to the AEC; and

                     (b)  if the response is to be so published—in the next edition.

Note:          This subsection is a civil penalty provision (see section 305).

             (6)  Without limiting the ways in which an organisation or branch may comply with subsection (3), it complies if it does all of the following:

                     (a)  publishes, in the next edition of the organisation or branch journal, a copy of the relevant extract of the report and the organisation’s response;

                     (b)  within 30 days after the day on which it gives its response to the AEC:

                              (i)  lodges with FWA a copy of the relevant extract of the report and a copy of the response given to the AEC under subsection (1), together with a declaration that the organisation or branch will provide a copy of the extract and the organisation’s response to any member who so requests; and

                             (ii)  gives notice in the next edition of the organisation or branch journal, or in an appropriate newspaper, that a copy of the relevant extract of the report and the organisation’s response is available, upon request, from the organisation or branch to each member free of charge;

                     (c)  meets the requirements of any regulations made for the purposes of this subsection.

Declaration that report and response will be available

             (7)  A declaration under paragraph (6)(b) must be signed by the secretary or other prescribed officer of the organisation or branch (as the case requires).

             (8)  A person must not, in a declaration for the purposes of paragraph (6)(b), 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).

Definitions

             (9)  In this section:

appropriate newspaper, in relation to an organisation or branch, means a newspaper, or newspapers, whose circulation covers the main geographical areas where members of the organisation or branch reside.

next edition, in relation to publishing a relevant extract of a post‑election report or response in a journal, means the first edition of the journal in which it is reasonably practicable for the report or the response (as the case may be) to be published.

199  Ballot papers etc. to be preserved

             (1)  In spite of anything in the rules of an organisation or a branch of an organisation, where an election for an office in the organisation or branch is conducted by the AEC, the organisation or branch, and every officer and employee of the organisation or branch who is able to do so, and the AEC, must take such steps as are necessary to ensure that all ballot papers, envelopes, lists and other documents relevant to the election are preserved and kept by the AEC for one year after the completion of the election.

             (2)  In spite of anything in the rules of an organisation or a branch of an organisation, where an election for an office in the organisation or branch is conducted by the organisation or branch, the organisation or branch, and every officer and employee of the organisation or branch who is able to do so, must take such steps as are necessary to ensure that all ballot papers, envelopes, lists and other documents relevant to the election are preserved and kept at the office of the organisation or branch, as the case may be, for one year after the completion of the election.

             (3)  An organisation or branch of an organisation commits an offence if the organisation or branch contravenes subsection (1) or (2).

Maximum penalty:    100 penalty units.

             (4)  Subsection (3) does not apply if the organisation 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)  An officer or employee of an organisation or branch commits an offence if the officer or employee contravenes subsection (1) or (2).

Maximum penalty:    20 penalty units.

             (6)  Subsection (5) does not apply if the officer or employee has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter mentioned in subsection (6), see subsection 13.3(3) of the Criminal Code.

             (7)  Offences against subsections (3) and (5) are offences of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

 

Part 3—Inquiries into elections for office

  

200  Application for inquiry

When member of organisation may apply for inquiry

             (1)  If a person who is, or within the preceding period of 12 months has been, a member of an organisation claims that there has been an irregularity in relation to an election for an office in the organisation or a branch of the organisation, the person may make an application for an inquiry by the Federal Court into the matter.

Note:          For the meaning of irregularity, see section 6.

When Electoral Commissioner must apply for an inquiry

             (2)  If the Electoral Commissioner believes that the result of an election for an office has been affected by an irregularity in relation to the election, the Electoral Commissioner must make an application for an inquiry by the Federal Court into the matter.

When Electoral Commissioner may apply for an inquiry

             (3)  If the Electoral Commissioner believes that there has been an irregularity in relation to an election for an office, the Electoral Commissioner may make an application for an inquiry by the Federal Court into the matter.

Note:          This section relates only to elections for office. It does not apply to elections for positions other than offices (which can also be conducted under Part 2).

201  Instituting of inquiry

                   Where:

                     (a)  an application for an inquiry has been lodged with the Federal Court under section 200; and

                     (b)  the Court is satisfied that there are reasonable grounds for the application;

the Court must fix a time and place for conducting the inquiry, and may give such directions as it considers necessary to ensure that all persons who are or may be justly entitled to appear at the inquiry are notified of the time and place fixed and, where the Court fixes a time and place, the inquiry is taken to have been instituted.

202  Federal Court may authorise General Manager to take certain action

             (1)  Where an application for an inquiry has been lodged with the Federal Court under section 200, the Court may authorise the General Manager to take any action referred to in subsection (2).

             (2)  If the General Manager is authorised for the purposes of subsection (1), he or she may take the following actions:

                     (a)  inspecting election documents;

                     (b)  for the purposes of any such inspection, entering, with such assistance as he or she considers necessary, any premises used or occupied by the organisation, or a branch of the organisation, concerned in which he or she believes election documents to be;

                     (c)  giving a written notice to a person requiring the person to deliver to him or her, within the period and in the manner specified in the notice, any election documents in the possession or under the control of the person;

                     (d)  taking possession of any election documents;

                     (e)  retaining any election documents delivered to him or her, or of which he or she has taken possession, for such period as is necessary for the purposes of the application and, if proceedings under this Part arise out of the application, until the completion of the proceedings or such earlier time as the Court orders.

             (3)  Before authorising any action under subsection (1), the Court must, if it considers that, having regard to all the circumstances, a person should be given an opportunity of objecting to the proposed action, give such an opportunity to the person.

             (4)  The period specified in a notice given under paragraph (2)(c) must specify a period of at least 14 days after the notice is given.

             (5)  A person commits an offence if the person:

                     (a)  contravenes a requirement made under paragraph (2)(c); or

                     (b)  hinders or obstructs the General Manager, or a person acting on his or her behalf, in the exercise of powers under subsection (2).

Maximum penalty:    30 penalty units.

             (6)  Strict liability applies to paragraph (5)(a).

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (7)  Paragraph (5)(a) 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 (7), see subsection 13.3(3) of the Criminal Code.

             (8)  A person is not excused from producing an election document under this section on the ground that the production of the document might tend to incriminate the person or expose the person to a penalty.

             (9)  However:

                     (a)  producing the document; or

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

is not admissible in evidence against the person in criminal proceedings or proceedings that may expose the person to a penalty.

           (10)  In this section:

election documents, in relation to an election, means ballot papers, envelopes, lists or other documents that have been used in, or are relevant to, the election.

203  Identity cards

Issue of identity card

             (1)  The General Manager must issue an identity card to each member of the staff of FWA (an official) to whom powers of the General Manager under section 202 have been delegated under section 343A.

             (2)  The identity card must:

                     (a)  be in the prescribed form; and

                     (b)  include a recent photograph of the official.

Use of identity card

             (3)  The official must carry the identity card at all times when taking action under section 202.

             (4)  Before the official takes action under paragraph 202(2)(b) (entering premises), the official must:

                     (a)  inform the occupier of the premises that the official is authorised to enter the premises; and

                     (b)  show the identity card to the occupier.

             (5)  The official is not entitled to enter premises under paragraph 202(2)(b) if he or she has not complied with subsection (4).

Offence: failing to return identity card

             (6)  A person commits an offence if:

                     (a)  the person holds or held an identity card; and

                     (b)  the person ceases to be a member of the staff of FWA to whom powers of the General Manager under section 202 have been delegated under section 343A; and

                     (c)  the person does not, as soon as is practicable after so ceasing, return the identity card to the General Manager.

Maximum penalty:    1 penalty unit.

             (7)  An offence against subsection (6) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (8)  Subsection (6) does not apply if the identity card was lost or destroyed.

Note:          A defendant bears an evidential burden in relation to the matter mentioned in subsection (8), see subsection 13.3(3) of the Criminal Code.

204  Interim orders

             (1)  Where an inquiry into an election has been instituted, the Federal Court may make one or more of the following orders:

                     (a)  an order that no further steps are to be taken in the conduct of the election or in carrying into effect the result of the election;

                     (b)  an order that a person who has assumed an office, has continued to act in an office, or claims to occupy an office, to which the inquiry relates may act, or continue to act, in the office;

                     (c)  an order that a person who has assumed an office, has continued to act in an office, or claims to occupy an office, to which the inquiry relates must not act in the office;

                     (d)  an order that a person who holds, or last held before the election, an office to which the inquiry relates may act, or continue to act, in the office;

                     (e)  where it considers that an order under paragraph (b) or (d) would not be practicable, would be prejudicial to the efficient conduct of the affairs of the organisation or would be inappropriate having regard to the nature of the inquiry, an order that a member of the organisation or another person specified in the order may act in an office to which the inquiry relates;

                      (f)  an order incidental or supplementary to an order under this subsection;

                     (g)  an order varying or discharging an order under this subsection.

             (2)  Where the Court orders that a person may act, or continue to act, in an office, the person is, while the order remains in force and in spite of anything in the rules of the organisation or a branch of the organisation, to be taken to hold the office.

             (3)  An order under this section continues in force, unless expressed to operate for a shorter period or sooner discharged, until the completion of:

                     (a)  the proceeding concerned in the Court in relation to the election; and

                     (b)  all matters ordered by the Court (otherwise than under this section) in the proceeding.

205  Procedure at hearing

             (1)  The Federal Court must allow to appear at an inquiry all persons who apply to the Court for leave to appear and who appear to the Court to have an interest in the inquiry, and the Court may order any other person to appear.

             (2)  The persons appearing, or ordered under subsection (1) to appear, at an inquiry are taken to be parties to the proceeding.

             (3)  For the purposes of this Part:

                     (a)  the procedure of the Court is, subject to this Act and the Rules of Court, within the discretion of the Court; and

                     (b)  the Court is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it considers just.

206  Action by Federal Court

             (1)  At an inquiry, the Federal Court must inquire into and determine the question whether an irregularity has happened in relation to the election, and such further questions concerning the conduct and results of the election as the Court considers necessary.

             (2)  For the purposes of subsection (1), the Court must determine whether an irregularity has happened on the balance of probabilities.

             (3)  In the course of conducting an inquiry, the Court may make such orders (including an order for the recounting of votes) as the Court considers necessary.

             (4)  If the Court finds that an irregularity has happened, the Court may, subject to subsection (5), make one or more of the following orders:

                     (a)  an order declaring the election, or any step in relation to the election, to be void;

                     (b)  an order declaring a person purporting to have been elected not to have been elected, and declaring another person to have been elected;

                     (c)  an order directing the General Manager to make arrangements:

                              (i)  in the case of an uncompleted election—for a step in relation to the election (including the calling for nominations) to be taken again and for the uncompleted steps in the election to be taken; or

                             (ii)  in the case of a completed election—for a step in relation to the election (including the calling for nominations) to be taken again or a new election to be held;

                     (d)  an order (including an order modifying the operation of the rules of the organisation to the extent necessary to enable a new election to be held, a step in relation to an election to be taken again or an uncompleted step in an election to be taken) incidental or supplementary to, or consequential on, any other order under this section.

             (5)  The Court must not declare an election, or any step taken in relation to an election, to be void, or declare that a person was not elected, unless the Court is of the opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have happened or may happen, the result of the election may have been affected, or may be affected, by irregularities.

             (6)  Without limiting the power of the Court to terminate a proceeding before it, the Court may, at any time after it begins an inquiry into an election, terminate the inquiry or the inquiry to the extent that it relates to specified matters.

207  General Manager to make arrangements for conduct of elections etc.

                   Where the Federal Court makes an order under paragraph 206(4)(c) in relation to an election, the General Manager must arrange for the taking of the necessary steps in relation to the election, or for the conduct of the new election, as the case requires, by the AEC.

208  Enforcement of orders

                   The Federal Court may grant such injunctions (including mandatory injunctions) as it considers necessary for the effective performance of its functions and the enforcement of its orders under this Part.

209  Validity of certain acts etc. where election declared void

             (1)  Where the Federal Court declares void the election of a person who has, since the election, purported to act in the office to which the person purported to have been elected, or declares such a person not to have been elected:

                     (a)  subject to a declaration under paragraph (b), all acts done by or in relation to the person that could validly have been done by or in relation to the person if the person had been duly elected are valid; and

                     (b)  the Court may declare an act referred to in paragraph (a) to have been void, and, if the Court does so, the act is taken not to have been validly done.

             (2)  Where an election is held, or a step in relation to an election is taken, under an order of the Court, the election or step is not invalid merely because of a departure from the rules of the organisation or branch concerned that was required by the order of the Court.

 

Part 4—Disqualification from office

Division 1—Simplified outline of Part

210  Simplified outline

 

Division 2—Persons who have been convicted of a prescribed offence

211  Simplified outline of Division

212  Meaning of prescribed offence

                   In this Division, a prescribed offence is:

                     (a)  an offence under a law of the Commonwealth, a State or Territory, or another country, involving fraud or dishonesty and punishable on conviction by imprisonment for a period of 3 months or more; or

                     (b)  an offence against section 51, 72, 105, 185, 191, subsection 193(2), section 194, 195, 199 or subsection 202(5); or

                     (c)  any other offence in relation to the formation, registration or management of an association or organisation; or

                     (d)  any other offence under a law of the Commonwealth, a State or Territory, or another country, involving the intentional use of violence towards another person, the intentional causing of death or injury to another person or the intentional damaging or destruction of property.

213  Meaning of convicted of a prescribed offence

                   For the purposes of this Division, a person:

                     (a)  is convicted of a prescribed offence whether the person is convicted before or after the commencement of this Part; and

                     (b)  is not convicted of a prescribed offence merely because the person is convicted, otherwise than on indictment, of an offence referred to in paragraph 212(c); and

                     (c)  is not convicted of a prescribed offence referred to in paragraph 212(d) unless the person was sentenced to a term of imprisonment for the offence and either:

                              (i)  the person has served, or is serving, a term of imprisonment for the offence; or

                             (ii)  the sentence is suspended for a period.

Note:          Other terms used in this Part may be defined in section 6.

213A  Meaning of exclusion period and reduced exclusion period

             (1)  For the purposes of this Division, the exclusion period in relation to a person who has been convicted of a prescribed offence means a period of 5 years beginning on the latest of the following days:

                     (a)  the day on which the person was convicted of the prescribed offence;

                     (b)  if the person was sentenced to a term of imprisonment for the offence, the sentence was suspended for a period, and the person is not imprisoned for the offence during the period—the day immediately after the end of the period;

                     (c)  if the person serves a term of imprisonment for the offence—the day on which the person is released from prison.

             (2)  For the purposes of this Division, a reduced exclusion period means a period specified by the Federal Court for the purposes of subparagraph 215(1)(a)(ii) under paragraph 216(2)(b) or 217(2)(b).

214  Certificate of registrar etc. is evidence of facts

             (1)  A certificate purporting to be signed by the registrar or other proper officer of a federal court, a court of a State or Territory, or a court of another country, stating that a person was convicted by the court of a specified offence on a specified day is, for the purpose of an application made under section 215, 216 or 217, evidence that the person was convicted of the offence on that day.

             (2)  A certificate purporting to be signed by the registrar or other proper officer of a federal court, a court of a State or Territory, or a court of another country, stating that a person was acquitted by the court of a specified offence, or that a specified charge against the person was dismissed by the court, is, for the purpose of an application made under section 215, 216 or 217, evidence of the facts stated in the certificate.

             (3)  A certificate purporting to be signed by the officer in charge of a prison stating that a person was released from the prison on a specified day is, for the purpose of an application made under section 215, 216 or 217, evidence that the person was released from the prison on that day.

             (4)  A certificate purporting to be signed by the registrar or other proper officer of a federal court, a court of a State or Territory, or a court of another country, stating that the sentence of a person who was convicted of a specified offence has been suspended for a specified period is, for the purpose of an application made under section 215, 216 or 217, evidence that the sentence was suspended for that period.

215  Certain persons disqualified from holding office in organisations

             (1)  A person who has been convicted of a prescribed offence is not eligible to be a candidate for an election, or to be elected or appointed, to an office in an organisation unless:

                     (a)  on an application made under section 216 or 217 in relation to the conviction of the person for the prescribed offence:

                              (i)  the person was granted leave to hold office in organisations; or

                             (ii)  the person was refused leave to hold office in organisations but, under paragraph 216(2)(b) or 217(2)(b), the Federal Court specified a reduced exclusion period, and that period has elapsed; or

                     (b)  in any other case—the exclusion period has elapsed.

             (2)  Where a person who holds an office in an organisation is convicted of a prescribed offence, the person ceases to hold the office at the end of the period of 28 days after the conviction unless, within the period, the person makes an application to the Federal Court under section 216 or 217.

             (3)  If a person who holds an office in an organisation makes an application to the Federal Court under section 216 or 217 and the application is not determined:

                     (a)  except in a case to which paragraph (b) applies—within the period of 3 months after the date of the application; or

                     (b)  if the Court, on application by the person, has extended the period—within that period as extended;

the person ceases to hold the office at the end of the period of 3 months or the period as extended, as the case may be.

             (4)  The Court must not, under paragraph (3)(b), extend a period for the purposes of subsection (3) unless:

                     (a)  the application for the extension is made before the end of the period of 3 months referred to in paragraph (3)(a); or

                     (b)  if the Court has previously extended the period under paragraph (3)(b)—the application for the further extension is made before the end of the period as extended.

             (5)  An organisation, a member of an organisation or the General Manager may apply to the Federal Court for a declaration whether, because of the operation of this section or section 216 or 217:

                     (a)  a person is not, or was not, eligible to be a candidate for election, or to be elected or appointed, to an office in the organisation; or

                     (b)  a person has ceased to hold an office in the organisation.

             (6)  The granting to a person, on an application made under section 216 or 217 in relation to a conviction of the person for a prescribed offence, of leave to hold offices in organisations does not affect the operation of this section or section 216 or 217 in relation to another conviction of the person for a prescribed offence.

216  Application for leave to hold office in organisations by prospective candidate for office

             (1)  A person who:

                     (a)  wants to be a candidate for election, or to be appointed, to an office in an organisation; and

                     (b)  within the immediately preceding 5 years:

                              (i)  has been convicted of a prescribed offence; or

                             (ii)  has been released from prison after serving a term of imprisonment in relation to a conviction for a prescribed offence; or

                            (iii)  has completed a suspended sentence in relation to a conviction for a prescribed offence;

may, subject to subsection (4), apply to the Federal Court for leave to hold office in organisations.

             (2)  Where a person makes an application under subsection (1), the Court may:

                     (a)  grant the person leave to hold office in organisations; or

                     (b)  refuse the person leave to hold office in organisations and specify, for the purposes of subsection 215(1), a period of less than 5 years beginning on the latest of the following days:

                              (i)  the day on which the person was convicted of the prescribed offence;

                             (ii)  if the person was sentenced to a term of imprisonment for the offence, the sentence was suspended for a period, and the person is not imprisoned for the offence during the period—the day immediately after the end of the period;

                            (iii)  if the person serves a term of imprisonment for the offence—the day on which the person is released from prison.

                     (c)  refuse a person leave to hold office in organisations.

             (3)  A person who:

                     (a)  holds an office in an organisation; and

                     (b)  is convicted of a prescribed offence; and

                     (c)  on an application made under subsection (1) in relation to the conviction for the prescribed offence, is, under paragraph (2)(b) or (c), refused leave to hold office in organisations;

ceases to hold the office in the organisation.

             (4)  A person is not entitled to make an application under this section in relation to the person’s conviction for a prescribed offence if the person has previously made an application under this section or under section 217 in relation to the conviction.

217  Application for leave to hold office in organisations by office holder

             (1)  Where a person who holds an office in an organisation is convicted of a prescribed offence, the person may, subject to subsection (4), within 28 days after the conviction, apply to the Federal Court for leave to hold office in organisations.

             (2)  Where a person makes an application under subsection (1) for leave to hold office in organisations, the Court may:

                     (a)  grant the person leave to hold office in organisations; or

                     (b)  refuse the person leave to hold office in organisations and specify, for the purposes of subsection 215(1), a period of less than 5 years beginning on the latest of the following days:

                              (i)  the day on which the person was convicted of the prescribed offence;

                             (ii)  if the person was sentenced to a term of imprisonment for the offence, the sentence was suspended for a period, and the person is not imprisoned for the offence during the period—the day immediately after the end of the period;

                            (iii)  if the person serves a term of imprisonment for the offence—the day on which the person is released from prison.

                     (c)  refuse the person leave to hold office in organisations.

             (3)  A person who, on an application made under subsection (1), is, under paragraph (2)(b) or (c), refused leave to hold office in organisations ceases to hold the office concerned.

             (4)  A person is not entitled to make an application under this section in relation to the person’s conviction for a prescribed offence if the person has previously made an application under this section or section 216 in relation to the conviction.

218  Federal Court to have regard to certain matters

                   For the purposes of exercising the power under section 216 or 217 to grant or refuse leave, to a person who has been convicted of a prescribed offence, to hold office in organisations, the Federal Court must have regard to:

                     (a)  the nature of the prescribed offence; and

                     (b)  the circumstances of, and the nature of the person’s involvement in, the commission of the prescribed offence; and

                     (c)  the general character of the person; and

                     (d)  the fitness of the person to be involved in the management of organisations, having regard to the conviction for the prescribed offence; and

                     (e)  any other matter that, in the Court’s opinion, is relevant.

219  Action by Federal Court

             (1)  The Federal Court may, in spite of anything in the rules of any organisation concerned, make such order to give effect to a declaration made under subsection 215(5) as it considers appropriate.

             (2)  Where an application is made to the Court under subsection 215(5):

                     (a)  the person whose eligibility, or whose holding of office, is in question must be given an opportunity of being heard by the Court; and

                     (b)  if the application is made otherwise than by the organisation concerned—the organisation must be given an opportunity of being heard by the Court.

             (3)  Where an application is made to the Court under section 216 or 217, the organisation concerned must be given an opportunity of being heard by the Court.

220  Part not to affect spent convictions scheme

                   Nothing in this Part affects the operation of Part VIIC of the Crimes Act 1914 (which includes provisions relieving persons from requirements to disclose spent convictions).

 

Chapter 8—Records and accounts

Part 1—Simplified outline of Chapter

  

229  Simplified outline

 

Part 2—Records to be kept and lodged by organisations

  

230  Records to be kept and lodged by organisations

             (1)  An organisation must keep the following records:

                     (a)  a register of its members, showing the name and postal address of each member and showing whether the member became a member under an agreement entered into under rules made under subsection 151(1);

                     (b)  a list of the offices in the organisation and each branch of the organisation;

                     (c)  a list of the names, postal addresses and occupations of the persons holding the offices;

                     (d)  such other records as are prescribed.

Note:          This subsection is a civil penalty provision (see section 305).

             (2)  An organisation must:

                     (a)  enter in the register of its members the name and postal address of each person who becomes a member, within 28 days after the person becomes a member;

                     (b)  remove from that register the name and postal address of each person who ceases to be a member under section 171A, or under the rules of the organisation, within 28 days after the person ceases to be a member; and

                     (c)  enter in that register any change in the particulars shown on the register, within 28 days after the matters necessitating the change become known to the organisation.

Note 1:       This subsection is a civil penalty provision (see section 305).

Note 2:       An organisation may also be required to make alterations to the register of its members under other provisions of this Act (see, for example, sections 170 and 172).

231  Certain records to be held for 7 years

             (1)  An organisation must keep a copy of its register of members as it stood on 31 December in each year. The organisation must keep the copy for the period of 7 years after the 31 December concerned.

             (2)  The regulations may provide that an organisation must also keep a copy of the register, or a part of the register, as it stood on a prescribed day. The organisation must keep the copy for the period of 7 years after the prescribed day.

Note:          This section is a civil penalty provision (see section 305).

232  Offence to interfere with register or copy

             (1)  A person commits an offence if:

                     (a)  the person does an act; and

                     (b)  the act results in the destruction or defacement of, or other interference with, a register of members or a copy of such a register; and

                     (c)  either:

                              (i)  the register of members is required to be kept by an organisation under paragraph 230(1)(a); or

                             (ii)  the copy is required to be kept by an organisation under section 231.

Maximum penalty:    20 penalty units.

             (2)  Strict liability applies to paragraph (1)(c).

Note:          For strict liability, see section 6.1 of the Criminal Code.

233  Obligation to lodge information with FWA

             (1)  An organisation must lodge with FWA once in each year, at such time as is prescribed:

                     (a)  a declaration signed by the secretary or other prescribed officer of the organisation certifying that the register of its members has, during the immediately preceding calendar year, been kept and maintained as required by paragraph 230(1)(a) and subsection 230(2); and

                     (b)  a copy of the records required to be kept under paragraphs 230(1)(b), (c) and (d), certified by declaration by the secretary or other prescribed officer of the organisation to be a correct statement of the information contained in those records.

             (2)  An organisation must, within the prescribed period, lodge with FWA notification of any change made to the records required to be kept under paragraphs 230(1)(b), (c) and (d), certified by declaration signed by the secretary or other prescribed officer of the organisation to be a correct statement of the changes made.

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

Note:          This section is a civil penalty provision (see section 305).

234  Storage of records

             (1)  Subject to subsections (2) and (5), the records kept by an organisation under sections 230 and 231 must be kept at the office of the organisation.

             (2)  A record referred to in subsection (1) may, so far as it relates to a branch of the organisation, be kept in a separate part or section at the office of the branch.

             (3)  An organisation may apply to the General Manager for permission to keep the whole or a specified part of a record referred to in subsection (1) at specified premises instead of at the office of the organisation or branch.

             (4)  The General Manager may, by signed instrument, grant the permission if the General Manager is satisfied that the record or the specified part of the record:

                     (a)  will be under the effective control of the organisation or branch; and

                     (b)  will, in the case of a register of members, be available for inspection in accordance with section 235.

             (5)  While a permission under subsection (4) is in force, a record referred to in the permission may, to the extent specified in the permission, be kept at the premises specified in the permission.

235  General Manager may authorise access to certain records

             (1)  A person (the authorised person) authorised by the General Manager may inspect, and make copies of, or take extracts from, the records kept by an organisation under sections 230 and 231 (the records) at such times as the General Manager specifies.

             (2)  An organisation must cause its records to be available, at all relevant times, for the purposes of subsection (1) to the authorised person.

Note:          This subsection is a civil penalty provision (see section 305).

             (3)  Without limiting the ways in which an organisation can comply with subsection (2), it complies if it makes the records available to the authorised person in a form agreed to by the authorised person.

Note:          For example, the authorised person could agree to the organisation providing him or her with a hard copy or with a floppy disk, or to transmitting a copy of the register (or the relevant part) to a specified e‑mail address.

236  General Manager may direct organisation to deliver copy of records

Register kept under section 230

             (1)  Where:

                     (a)  a member of an organisation requests the General Manager to give a direction under this subsection; and

                     (b)  the General Manager is satisfied:

                              (i)  that the member has been refused access to the register required to be kept under section 230, or part of it, at the office or premises where the register or part is kept; or

                             (ii)  that there are other grounds for giving a direction under this subsection;

the General Manager may direct the organisation to deliver to the General Manager a copy of the relevant records certified by declaration by the secretary or other prescribed officer of the organisation to be, as at a day specified in the certificate that is not more than 28 days before the first‑mentioned day, a correct statement of the information contained in the register, for the member to inspect at a specified registry, and the organisation must comply with the direction.

Note:          This subsection is a civil penalty provision (see section 305).

Copy kept under section 231

             (2)  Where:

                     (a)  a member of an organisation requests the General Manager to give a direction under this subsection; and

                     (b)  the General Manager is satisfied that:

                              (i)  the member has been refused access to the copy of the register required to be kept under section 231; and

                             (ii)  the member has reasonable grounds for seeking access to the copy;

the General Manager may direct the organisation to deliver to the General Manager a copy of the copy, and the organisation must comply with the direction.

Note:          This subsection is a civil penalty provision (see section 305).

             (3)  A direction of the General Manager given under this section must be in writing and must specify the period within which the relevant copy must be delivered to the General Manager. The period must not be less than 14 days after the direction is given.

             (4)  A copy of a record delivered under subsection (1) or (2) may be in the form of a hard copy or, if the General Manager agrees, in electronic form.

             (5)  Where the General Manager receives a copy of a document from an organisation under this section, the General Manager may, if the General Manager considers it appropriate in the circumstances, provide a copy of that document to a member of the organisation.

237  Organisations to notify particulars of loans, grants and donations

             (1)  An organisation must, within 90 days after the end of each financial year (or such longer period as the General Manager allows), lodge with FWA a statement showing the relevant particulars in relation to each loan, grant or donation of an amount exceeding $1,000 made by the organisation during the financial year.

Note:          This subsection is a civil penalty provision (see section 305).

             (2)  A statement lodged with FWA under subsection (1) must be signed by an officer of the organisation.

             (3)  An organisation must not, in a statement under 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).

             (4)  A statement lodged with FWA under subsection (1) may be inspected, during office hours, by a member of the organisation concerned.

             (5)  The relevant particulars, in relation to a loan made by an organisation, are:

                     (a)  the amount of the loan; and

                     (b)  the purpose for which the loan was required; and

                     (c)  the security given in relation to the loan; and

                     (d)  except where the loan was made to relieve a member of the organisation, or a dependant of a member of the organisation, from severe financial hardship—the name and address of the person to whom the loan was made and the arrangements made for the repayment of the loan.

             (6)  The relevant particulars, in relation to a grant or donation made by an organisation, are:

                     (a)  the amount of the grant or donation; and

                     (b)  the purpose for which the grant or donation was made; and

                     (c)  except where the grant or donation was made to relieve a member of the organisation, or a dependant of a member of the organisation, from severe financial hardship—the name and address of the person to whom the grant or donation was made.

             (7)  Where an organisation is divided into branches:

                     (a)  this section applies in relation to the organisation as if loans, grants or donations made by a branch of the organisation were not made by the organisation; and

                     (b)  this section applies in relation to each of the branches as if the branch were itself an organisation.

             (8)  For the purposes of the application of this section in accordance with subsection (7) in relation to a branch of an organisation, the members of the organisation constituting the branch are taken to be members of the branch.

 

Part 3—Accounts and audit

Division 1—Preliminary

238  Simplified outline

239  Part only applies to financial years starting after registration

                   This Part does not apply, in relation to an association that becomes registered as an organisation under this Act, in relation to any financial year before the first financial year of the organisation that begins after the date of registration.

240  Financial years—change in financial year

                   Where the rules of an organisation change the period constituting the financial year of the organisation, the period between:

                     (a)  the commencement of the first financial year after the change; and

                     (b)  the end of the preceding financial year;

is to be taken, for the purposes of this Part, to be a financial year.

241  Exemptions from certain Australian Accounting Standards

             (1)  The General Manager may, by written notice, determine that particular Australian Accounting Standards do not apply in relation to an organisation or to a class of organisations.

             (2)  In deciding whether to determine that a particular Australian Accounting Standard does not apply in relation to an organisation or organisations, the General Manager is to have regard to the cost to the organisation or organisations of complying with the standard and the information needs of the members of the organisation or organisations.

 

Division 2—Reporting units

242  What is a reporting unit?

             (1)  The requirements of this Part apply in relation to reporting units. A reporting unit may be the whole of an organisation or a part of an organisation.

Organisations not divided into branches

             (2)  Where an organisation is not divided into branches, the reporting unit is the whole of the organisation.

Organisations divided into branches

             (3)  Where an organisation is divided into branches, each branch will be a reporting unit unless a certificate issued by the General Manager stating that the organisation is, for the purpose of compliance with this Part, divided into reporting units on an alternative basis (see section 245) is in force.

             (4)  The alternative reporting units are:

                     (a)  the whole of the organisation; or

                     (b)  a combination of 2 or more branches of the organisation.

Each branch of an organisation must be in one, and only one, reporting unit.

             (5)  For the purposes of this Part, so much of an organisation that is divided into branches as would not, apart from this subsection, be included in any branch, is taken to be a branch of the organisation.

243  Designated officers

A designated officer is an officer of:

                     (a)  in the case of a reporting unit that is the whole of an organisation—the organisation; or

                     (b)  in any other case—a branch, or one of the branches, that constitutes the reporting unit;

who, under the rules of the reporting unit, is responsible (whether alone or with others) for undertaking the functions necessary to enable the reporting unit to comply with this Part.

244  Members, staff and journals etc. of reporting units

             (1)  For the purposes of the application of this Part in relation to a reporting unit that is the whole of an organisation:

                     (a)  the members of the organisation are taken to be members of the reporting unit; and

                     (b)  employees of the organisation are taken to be employees of the reporting unit; and

                     (c)  the rules of the organisation are taken to be the rules of the reporting unit; and

                     (d)  the financial affairs and records of the organisation are taken to be the financial affairs and records of the reporting unit; and

                     (e)  conduct and activities of the organisation are taken to be conduct and activities of the reporting unit; and

                      (f)  a journal published by the organisation is taken to be a journal published by the reporting unit.

             (2)  For the purposes of the application of this Part in relation to a reporting unit that is not the whole of an organisation:

                     (a)  the members of the organisation constituting the branch or branches that make up the reporting unit are taken to be members of the reporting unit; and

                     (b)  employees of the organisation employed in relation to the branch or branches that make up the reporting unit (whether or not they are also employed in relation to any other branch) are taken to be employees of the reporting unit; and

                     (c)  if the reporting unit consists of one branch—the rules of the branch are taken to be the rules of the reporting unit; and

                     (d)  if the reporting unit consists of more than one branch—the rules of the branches (including any rules certified under section 246, or determined under section 247, for the purpose of giving effect to the establishment of the reporting unit) are taken to be the rules of the reporting unit; and

                     (e)  the financial affairs and records of the branch or branches that make up the reporting unit are taken to be the financial affairs and records of the reporting unit; and

                      (f)  conduct and activities of the branch or branches that make up the reporting unit are taken to be conduct and activities of the reporting unit; and

                     (g)  if the reporting unit consists of one branch—a journal published by the branch is taken to be a journal published by the reporting unit; and

                     (h)  a journal published by the organisation is taken to be a journal published by the reporting unit.

245  Determination of reporting units

             (1)  The General Manager may issue to an organisation that is divided into branches a certificate stating that the organisation is, for the purpose of compliance with this Part, to be divided into reporting units on an alternative basis (as mentioned in subsection 242(3)).

             (2)  A certificate may be issued on application by an organisation or at the initiative of the General Manager.

246  Determination of reporting units—application by organisation

             (1)  An application by an organisation for a certificate under section 245 must:

                     (a)  be in accordance with the regulations; and

                     (b)  include an application for the General Manager to certify such alterations to the rules of the organisation as are required to give effect to the establishment of the proposed reporting units.

Note:          Examples of the alterations that may be required are:

(a)           alterations to designate officers from the branches to be the committee of management for the reporting unit for the purpose of complying with this Part; and

(b)           alterations to designate officers from the branches to undertake such duties as are necessary for the purpose of enabling the reporting unit to comply with this Part.

             (2)  Where an organisation applies for a certificate, the General Manager must issue the certificate and certify the rule alterations if the General Manager is satisfied that:

                     (a)  the level of financial information that would be available to members under the proposed division into reporting units would be adequate and would be relevant to them; and

                     (b)  the alterations to the rules:

                              (i)  comply with, and are not contrary to, this Act, the Fair Work Act, modern awards or enterprise agreements; and

                             (ii)  are not otherwise contrary to law; and

                            (iii)  have been made under the rules of the organisation.

247  Determination of reporting units—General Manager initiative

             (1)  The General Manager may only issue a certificate under section 245 on his or her initiative if the General Manager:

                     (a)  is satisfied that, to improve compliance with the accounting, auditing and reporting requirements of this Part, it is most appropriate for the organisation to be divided into reporting units on the basis set out in the certificate; and

                     (b)  is satisfied that the level of financial information that would be available to members under the proposed division into reporting units would be adequate and would be relevant to them; and

                     (c)  has complied with the prescribed procedure.

             (2)  Where, in the General Manager’s opinion, the rules of an organisation need to be altered to give effect to the establishment of the proposed reporting units under subsection (1), the General Manager may, by instrument, after giving the organisation an opportunity, as prescribed, to be heard on the matter, determine such alterations of the rules as are, in the General Manager’s opinion, necessary to give effect to the establishment of the proposed reporting units.

248  Determination of reporting units—years certificate applies to

                   A certificate issued under section 245 is in force, and has effect according to its terms, in relation to:

                     (a)  the first financial year starting after the certificate is issued; and

                     (b)  each subsequent financial year unless, before the start of the financial year, the certificate is revoked under section 249.

249  Determination of reporting units—revocation of certificates

             (1)  The General Manager may at any time, by written notice, revoke a certificate issued to an organisation under section 245.

             (2)  If a certificate is revoked, each branch will be a reporting unit.

             (3)  A certificate may be revoked on application by an organisation or at the initiative of the General Manager.

             (4)  An application by an organisation for the revocation of a certificate must:

                     (a)  be in accordance with the regulations; and

                     (b)  include an application for the General Manager to certify such alterations to the rules of the organisation as are required to give effect to each branch being a reporting unit.

             (5)  Where an organisation applies for a revocation, the General Manager must revoke the certificate and certify the rule alterations if the General Manager is satisfied that:

                     (a)  the level of financial information that would be available to members with each branch being a reporting unit would be adequate and would be relevant to them; and

                     (b)  the alterations to the rules:

                              (i)  comply with, and are not contrary to, this Act, the Fair Work Act, modern awards or enterprise agreements; and

                             (ii)  are not otherwise contrary to law; and

                            (iii)  have been made under the rules of the organisation.

             (6)  The General Manager may only revoke a certificate on his or her initiative if the General Manager:

                     (a)  is satisfied that, to improve compliance with the accounting, auditing and reporting requirements of this Part, it is most appropriate for each branch to be a reporting unit; and

                     (b)  has complied with the prescribed procedure.

             (7)  Where:

                     (a)  the General Manager intends to revoke a certificate on his or her own initiative; and

                     (b)  in the General Manager’s opinion, the rules of an organisation need to be altered to give effect to each branch being a reporting unit;

the General Manager may, by instrument, after giving the organisation an opportunity, as prescribed, to be heard on the matter, determine such alterations of the rules as are, in the General Manager’s opinion, necessary to give effect to each branch being a reporting unit.

250  Determination of reporting units—rule alterations

             (1)  An alteration to rules under section 246, 247 or 249 takes effect on the day that it is certified or determined.

             (2)  To avoid doubt, changes in rules under those sections may include changes to the duties of an office (even if during a particular term of office).

251  Determination of reporting units—later certificate revokes earlier certificate

                   A certificate issued to an organisation under section 245 is taken to be revoked if a later certificate is issued to the organisation under section 245.

 

Division 3—Accounting obligations

Subdivision A—General obligations

252  Reporting unit to keep proper financial records

             (1)  A reporting unit must:

                     (a)  keep such financial records as correctly record and explain the transactions and financial position of the reporting unit, including such records as are prescribed; and

                     (b)  keep its financial records in such a manner as will enable a general purpose financial report to be prepared from them under section 253; and

                     (c)  keep its financial records in such a manner as will enable the accounts of the reporting unit to be conveniently and properly audited under this Part.

             (2)  Where an organisation consists of 2 or more reporting units, the financial records for each of the reporting units must, as far as practicable, be kept in a consistent manner.

Note 1:       This would involve, for example, the adoption of consistent accounting policies and a common chart of accounts for all reporting units in the organisation.

Note 2:       This requirement is subject to subsection (4) which allows reporting units to keep some records on a cash basis.

             (3)  Financial records of an organisation may, so far as they relate to the income and expenditure of the organisation, be kept on a cash basis or accrual basis, at the option of the organisation.

             (4)  If an organisation keeps the financial records referred to in subsection (1) on an accrual basis, it may keep the financial records for its membership subscriptions separately on a cash basis.

             (5)  An organisation must retain the financial records kept under subsection (1) for a period of 7 years after the completion of the transactions to which they relate.

253  Reporting unit to prepare general purpose financial report

             (1)  As soon as practicable after the end of each financial year, a reporting unit must cause a general purpose financial report to be prepared, in accordance with the Australian Accounting Standards, from the financial records kept under subsection 252(1) in relation to the financial year.

             (2)  The general purpose financial report must consist of:

                     (a)  financial statements containing:

                              (i)  a profit and loss statement, or other operating statement; and

                             (ii)  a balance sheet; and

                            (iii)  a statement of cash flows; and

                            (iv)  any other statements required by the Australian Accounting Standards; and

                     (b)  notes to the financial statements containing:

                              (i)  notes required by the Australian Accounting Standards; and

                             (ii)  information required by the reporting guidelines (see section 255); and

                     (c)  any other reports or statements required by the reporting guidelines (see section 255).

             (3)  The financial statements and notes for a financial year must give a true and fair view of the financial position and performance of the reporting unit. This subsection does not affect the obligation for a financial report to comply with the Australian Accounting Standards.

Note 1:       This section is a civil penalty provision (see section 305).

Note 2:       The Australian Accounting Standards may be modified for the purposes of this Act by the regulations.

Note 3:       If the financial statements and notes prepared in compliance with the Australian Accounting Standards would not give a true and fair view, additional information must be included in the notes to the financial statements under paragraph (2)(b).

254  Reporting unit to prepare operating report

             (1)  As soon as practicable after the end of each financial year, the committee of management of a reporting unit must cause an operating report to be prepared in relation to the financial year.

             (2)  The operating report must:

                     (a)  contain a review of the reporting unit’s principal activities during the year, the results of those activities and any significant changes in the nature of those activities during the year; and

                     (b)  give details of any significant changes in the reporting unit’s financial affairs during the year; and

                     (c)  give details of the right of members to resign from the reporting unit under section 174; and

                     (d)  give details (including details of the position held) of any officer or member of the reporting unit who is:

                              (i)  a trustee of a superannuation entity or an exempt public sector superannuation scheme; or

                             (ii)  a director of a company that is a trustee of a superannuation entity or an exempt public sector superannuation scheme; and

                            where a criterion for the officer or member being the trustee or director is that the officer or member is an officer or member of a registered organisation; and

                     (e)  contain any other information that the reporting unit considers is relevant; and

                      (f)  contain any prescribed information.

             (3)  To avoid doubt, the operating report may be prepared by the committee of management or a designated officer.

Note:          This section is a civil penalty provision (see section 305).

Subdivision B—Reporting guidelines

255  Reporting guidelines

             (1)  The General Manager must, by written determination published in the Gazette, issue reporting guidelines for the purposes of sections 253 and 270.

             (2)  The reporting guidelines for the purposes of section 253 must provide:

                     (a)  the manner in which reporting units must disclose the total amount paid by the reporting unit during a financial year to employers as consideration for the employers making payroll deductions of membership subscriptions; and

                     (b)  the manner in which reporting units must disclose the total amount of legal costs and other expenses related to litigation or other legal matters paid by the reporting unit during a financial year; and

                     (c)  details of any information required for the purposes of subparagraph 253(2)(b)(ii) (information in notes to general purpose financial reports); and

                     (d)  the form and content of any reports or statements that are required for the purposes of paragraph 253(2)(c) (other reports or statements forming part of the general purpose financial reports).

             (3)  The reporting guidelines for the purposes of section 270 must provide:

                     (a)  the manner in which reporting units must disclose the total amount paid by the reporting unit during a financial year to employers as consideration for the employers making payroll deductions of membership subscriptions; and

                     (b)  details of the form and content of the general purpose financial report to be prepared under subsection 270(4).

             (4)  Reporting guidelines may also contain such other requirements in relation to the disclosure of information by reporting units as the General Manager considers appropriate.

             (5)  Section 604 of the Fair Work Act does not apply in relation to reporting guidelines or the issuing of reporting guidelines.

 

Division 4—Auditors

256  Auditors of reporting units

             (1)  A reporting unit must ensure that there is an auditor of the reporting unit at any time when an auditor is required for the purposes of the operation of this Part in relation to the reporting unit.

Note:          This subsection is a civil penalty provision (see section 305).

             (2)  The position of auditor of a reporting unit is to be held by:

                     (a)  a person who is an approved auditor; or

                     (b)  a firm, at least one of whose members is an approved auditor.

             (3)  A person must not accept appointment as auditor of a reporting unit unless:

                     (a)  the person is an approved auditor; and

                     (b)  the person is not an excluded auditor in relation to the reporting unit.

Note:          This subsection is a civil penalty provision (see section 305).

             (4)  A member of a firm must not accept appointment of the firm as auditor of a reporting unit unless:

                     (a)  at least one member of the firm is an approved auditor; and

                     (b)  no member of the firm is an excluded auditor in relation to the reporting unit.

Note:          This subsection is a civil penalty provision (see section 305).

             (5)  A person who holds the position of auditor of a reporting unit must resign the appointment if the person:

                     (a)  ceases to be an approved auditor; or

                     (b)  becomes an excluded auditor in relation to the reporting unit.

Note:          This subsection is a civil penalty provision (see section 305).

             (6)  A member of a firm that holds the position of auditor of a reporting unit must take whatever steps are open to the member to ensure that the firm resigns the appointment if the member:

                     (a)  ceases to be an approved auditor and is or becomes aware that no other member of the firm is an approved auditor; or

                     (b)  becomes an excluded auditor in relation to the reporting unit; or

                     (c)  becomes aware that another member of the firm is an excluded auditor in relation to the reporting unit.

Note:          This subsection is a civil penalty provision (see section 305).

             (7)  The auditor of a reporting unit must use his or her best endeavours to comply with each requirement of this Act that is applicable to the auditor in that capacity.

257  Powers and duties of auditors

             (1)  An auditor of a reporting unit must audit the financial report of the reporting unit for each financial year and must make a report in relation to the year to the reporting unit.

             (2)  An auditor, or a person authorised by an auditor for the purposes of this subsection, is:

                     (a)  entitled at all reasonable times to full and free access to all records and other documents of the reporting unit relating directly or indirectly to the receipt or payment of money, or to the acquisition, receipt, custody or disposal of assets, by the reporting unit; and

                     (b)  entitled to seek from any designated officer, or employee of the reporting unit, such information and explanations as the auditor or authorised person wants for the purposes of the audit.

             (3)  If an auditor requests an officer, employee or member of an organisation to produce records or other documents under paragraph (2)(a), the request must:

                     (a)  be in writing; and

                     (b)  specify the nature of the records or other documents to be produced; and

                     (c)  specify how and where the records or other documents are to be produced; and

                     (d)  specify a period (of not less than 14 days after the notice is given) within which the records or other documents are to be produced.

             (4)  If an auditor authorises a person for the purposes of subsection (2), the auditor must serve on the reporting unit a notification that sets out the name and address of the person.

             (5)  An auditor must, in his or her report, state whether in the auditor’s opinion the general purpose financial report is presented fairly in accordance with any of the following that apply in relation to the reporting unit:

                     (a)  the Australian Accounting Standards;

                     (b)  any other requirements imposed by this Part.

If not of that opinion, the auditor’s report must say why.

             (6)  If the auditor is of the opinion that the general purpose financial report does not so comply, the auditor’s report must, to the extent it is practicable to do so, quantify the effect that non‑compliance has on the general purpose financial report. If it is not practicable to quantify the effect fully, the report must say why.

             (7)  The auditor’s report must describe:

                     (a)  any defect or irregularity in the general purpose financial report; and

                     (b)  any deficiency, failure or shortcoming in respect of the matters referred to in subsection (2) or section 252.

             (8)  The form and content of the auditor’s report must be in accordance with the Australian Auditing Standards.

             (9)  The auditor’s report must be dated as at the date that the auditor signs the report and must be given to the reporting unit within a reasonable time of the auditor having received the general purpose financial report.

           (10)  An auditor must not, in a report under this section, make a statement if the auditor knows, or is reckless as to whether, the statement is false or misleading.

Note:          This subsection is a civil penalty provision (see section 305).

           (11)  If:

                     (a)  the auditor suspects on reasonable grounds that there has been a breach of this Act or reporting guidelines; and

                     (b)  the auditor is of the opinion that the matter cannot be adequately dealt with by comment in a report or by reporting the matter to the committee of management of the reporting unit;

the auditor must immediately report the matter, in writing, to the General Manager.

Note:          This subsection is a civil penalty provision (see section 305).

258  Obstruction etc. of auditors

             (1)  An officer, employee or member of an organisation or branch commits an offence if he or she:

                     (a)  hinders or obstructs the auditor of a reporting unit from taking action under paragraph 257(2)(a); or

                     (b)  does not comply with a request under paragraph 257(2)(a) by an auditor of a reporting unit to produce a record or other document in the custody or under the control of the officer, employee or member.

Maximum penalty:    30 penalty units.

             (2)  Strict liability applies to paragraph (1)(b).

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (3)  It is a defence to an offence against paragraph (1)(b) if the officer, employee or member had a reasonable excuse for not complying.

Note:          A defendant bears an evidential burden in relation to the matters mentioned in subsection (3).

             (4)  However, a person is not excused from producing a record or other document under this section on the ground that the production might tend to incriminate the person or expose the person to a penalty.

             (5)  However:

                     (a)  producing the record or other document; or

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

is not admissible in evidence against the person in criminal proceedings or proceedings that may expose the person to a penalty.

             (6)  It is a defence to an offence against subsection (1) if the officer, employee or member did not know, and could not reasonably have known, that the auditor, or the person authorised by the auditor, to whom the charge relates was a person in relation to whom that subsection applied.

Note:          A defendant bears an evidential burden in relation to the matters mentioned in subsection (6).

             (7)  In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the auditor was an auditor.

             (8)  In this section:

auditor includes a person authorised by the auditor for the purposes of subsection 257(2).

259  Reporting unit to forward notices etc. to auditor

                   A reporting unit must forward to the auditor of the reporting unit any notice of, and any other communication relating to, a meeting of the reporting unit, or the committee of management of the reporting unit, at which the report of the auditor, or any general purpose financial report to which the report relates, are to be presented, being a notice or other communication that a member of the reporting unit, or the committee of management of the reporting unit, as the case may be, would be entitled to receive.

Note:          This section is a civil penalty provision (see section 305).

260  Auditor entitled to attend meetings at which report presented

             (1)  An auditor, or a person authorised by an auditor for the purposes of this section, is entitled to attend, and be heard at, any part of a meeting of a reporting unit, or the committee of management of a reporting unit, at which:

                     (a)  the report of the auditor, or any general purpose financial report to which the report relates, is to be presented or considered; or

                     (b)  there is to be conducted any business of the meeting that relates to:

                              (i)  the auditor in that capacity; or

                             (ii)  a person authorised by the auditor, in the capacity of a person so authorised.

             (2)  Where an auditor authorises a person for the purposes of this section, the auditor must serve on the reporting unit a notification, which sets out the name and address of the person.

             (3)  An officer, employee or member of an organisation or branch commits an offence if he or she hinders or obstructs the auditor of a reporting unit from attending a part of the meeting that the auditor is entitled to attend.

Maximum penalty:    30 penalty units.

             (4)  A person commits an offence if:

                     (a)  an auditor of a reporting unit attends a part of a meeting that the auditor is entitled to attend; and

                     (b)  the person chairs the meeting; and

                     (c)  in the course of the part of the meeting, the auditor indicates to the person chairing the meeting that the auditor wishes to be heard; and

                     (d)  the person fails, as soon as practicable after having received the indication, to afford to the auditor an opportunity to be heard.

Maximum penalty:    20 penalty units.

             (5)  It is a defence to an offence against a subsection of this section if the person did not know, and could not reasonably have known, that the auditor, or the person authorised by the auditor, to whom the charge relates was a person in relation to whom the subsection applied.

Note:          A defendant bears an evidential burden in relation to the matters mentioned in subsection (5).

             (6)  In a prosecution for an offence against this section, it is not necessary to prove that the defendant knew that the auditor was an auditor.

             (7)  In subsections (3) and (4):

auditor includes a person authorised by the auditor for the purposes of this section.

261  Auditors and other persons to enjoy qualified privilege in certain circumstances

             (1)  An auditor of a reporting unit is not, in the absence of malice, liable to an action for defamation at the suit of a person in relation to a statement that the auditor makes in the course of duties as auditor, whether the statement is made orally or in writing.

             (2)  A person is not, in the absence of malice, liable to an action for defamation at the suit of a person in relation to the publishing of a document prepared by an auditor of a reporting unit in the course of duties as auditor and required by or under this Act to be lodged with FWA.

             (3)  This section does not limit or affect any right, privilege or immunity that a defendant has in an action for defamation.

262  Fees and expenses of auditors

                   A reporting unit must pay the reasonable fees and expenses of an auditor of the reporting unit.

263  Removal of auditor

             (1)  An auditor of a reporting unit may only be removed during the term of appointment of the auditor:

                     (a)  where the auditor was appointed by the committee of management of the reporting unit—by resolution passed at a meeting of the committee by an absolute majority of the members of the committee; or

                     (b)  where the auditor was appointed by a general meeting of the members of the reporting unit—by resolution passed at a general meeting by a majority of the members of the reporting unit voting at the meeting.

             (2)  Written notice of the intention to remove the auditor must be given to each member of the reporting unit. The notice must be provided in accordance with any time limits provided by the rules of the reporting unit, or within a reasonable time before the resolution is moved if no such time limits are provided.

Note:          This subsection is a civil penalty provision (see section 305).

             (3)  The auditor must be given reasonable notice of the resolution to remove the auditor and must be given the opportunity to:

                     (a)  in the case of removal under paragraph (1)(a)—make oral representations to the committee of management; and

                     (b)  in any case—make written representations.

Note:          This subsection is a civil penalty provision (see section 305).

             (4)  If it is proposed to remove the auditor under paragraph (1)(b) and the auditor makes written representations, the auditor may require the reporting unit to provide a copy of the written representations to each member of the reporting unit.

             (5)  The reporting unit must comply with a requirement under subsection (4) unless the written representations exceed any limits as to length that are prescribed.

Note:          This subsection is a civil penalty provision (see section 305).

264  Resignation of auditor

             (1)  An auditor of a reporting unit may resign by giving written notice to the reporting unit.

             (2)  The resignation takes effect on the day specified in the notice or, if no day is specified, the day that the notice is given to the reporting unit.

             (3)  If the auditor requests the reporting unit to allow the auditor to explain his or her reasons for resigning, the reporting unit must either:

                     (a)  distribute to the members of the reporting unit written reasons for resignation prepared by the auditor; or

                     (b)  give the auditor the opportunity to explain his or her reasons to a general meeting of the reporting unit.

The committee of management of the reporting unit may choose which method is used.

Note:          This subsection is a civil penalty provision (see section 305).

 

Division 5—Reporting requirements

265  Copies of full report or concise report to be provided to members

             (1)  A reporting unit must provide free of charge to its members either:

                     (a)  a full report consisting of:

                              (i)  a copy of the report of the auditor in relation to the inspection and audit of the financial records of the reporting unit in relation to a financial year; and

                             (ii)  a copy of the general purpose financial report to which the report relates; and

                            (iii)  a copy of the operating report to which the report relates; or

                     (b)  a concise report for the financial year that complies with subsection (3).

Note:          This subsection is a civil penalty provision (see section 305).

             (2)  A concise report may only be provided if, under the rules of the reporting unit, the committee of management of the reporting unit resolves that a concise report is to be provided.

             (3)  A concise report for a financial year consists of:

                     (a)  a concise financial report for the year drawn up in accordance with the regulations; and

                     (b)  the operating report for the year; and

                     (c)  a statement by the auditor:

                              (i)  that the concise financial report has been audited; and

                             (ii)  whether, in the auditor’s opinion, the concise financial report complies with the relevant Australian Accounting Standards; and

                     (d)  a copy of anything included under subsection 257(5), (6) or (7) in the auditor’s report on the full report; and

                     (e)  a statement that the report is a concise report and that a copy of the full report and auditor’s report will be sent to the member free of charge if the member asks for them.

             (4)  If a member requests a copy of the full report and auditor’s report, as mentioned in paragraph (3)(e), the reporting unit must send those reports to the person within 28 days of the request being made.

Note:          This subsection is a civil penalty provision (see section 305).

             (5)  The copies referred to in subsection (1) must be provided within:

                     (a)  if a general meeting of members of the reporting unit to consider the reports is held within 6 months after the end of the financial year—the period starting at the end of the financial year and ending 21 days before that meeting; or

                     (b)  in any other case—the period of 5 months starting at the end of the financial year.

The General Manager may, upon application by the reporting unit, extend the period during which the meeting referred to in paragraph (a) may be held, or the period set out in paragraph (b), by no more than one month.

Note:          This subsection is a civil penalty provision (see section 305).

             (6)  Where a reporting unit publishes a journal of the reporting unit that is available to the members of the reporting unit free of charge, the reporting unit may comply with subsection (1):

                     (a)  by publishing in the journal the full report; or

                     (b)  by preparing a concise report as described in subsection (3) and publishing the concise report in the journal.

             (7)  Where a reporting unit consists of 2 or more branches of an organisation and one of those branches publishes a journal of the branch that is available to the members of the branch free of charge, the reporting unit may comply with subsection (1) in relation to those members:

                     (a)  by publishing in the journal the full report; or

                     (b)  by preparing a concise report as described in subsection (3) and publishing the concise report in the journal.

266  Full report to be presented to meetings

             (1)  Subject to subsection (2), the reporting unit must cause the full report to be presented to a general meeting of the members of the reporting unit within the period of 6 months starting at the end of the financial year (or such longer period as is allowed by the General Manager under subsection 265(5)).

Note:          This subsection is a civil penalty provision (see section 305).

             (2)  If the rules of the reporting unit permit a general meeting to be a series of meetings at different locations, the presenting of the full report to such a series of meetings is taken to be the presenting of the report to a general meeting. The general meeting is taken to have occurred at the time of the last of the meetings in the series.

             (3)  If the rules of the reporting unit provide for a specified percentage (not exceeding 5%) of members to be able to call a general meeting of the reporting unit for the purpose of considering the auditor’s report, the general purpose financial report and the operating report, the full report may instead be presented to a meeting of the committee of management of the reporting unit that is held within the period mentioned in subsection (1).

267  Comments by committee members not to be false or misleading

                   Where a member of the committee of management of a reporting unit:

                     (a)  provides to members of the reporting unit; or

                     (b)  publishes in a journal; or

                     (c)  presents to a general meeting of the members of the reporting unit or a meeting of the committee of management of the reporting unit;

comments on a matter dealt with in a report, accounts or statements of the kind referred to in subsection 265(1), or in a concise report as described in subsection 265(3), the member must not, in the comments, make a statement if the person knows, or is reckless as to whether, the statement is false or misleading.

Note:          This section is a civil penalty provision (see section 305).

268  Reports etc. to be lodged with FWA

                   A reporting unit must, within 14 days (or such longer period as the General Manager allows) after the general meeting referred to in section 266, lodge with FWA:

                     (a)  a copy of the full report; and

                     (b)  if a concise report was provided to members—a copy of the concise report; and

                     (c)  a certificate by a prescribed designated officer that the documents lodged are copies of the documents provided to members and presented to a meeting in accordance with section 266.

Note:          This section is a civil penalty provision (see section 305).

 

Division 6—Reduced reporting requirements for particular reporting units

269  Reporting units with substantial common membership with State registered bodies

             (1)  This section applies to a reporting unit if there is an industrial association (the associated State body) that:

                     (a)  is registered or recognised as such an association (however described) under a prescribed State Act; and

                     (b)  is, or purports to be, composed of substantially the same members as the reporting unit; and

                     (c)  has, or purports to have, officers who are substantially the same as designated officers in relation to the reporting unit.

             (2)  A reporting unit is taken to have satisfied this Part if this section applies to the reporting unit and:

                     (a)  the General Manager, on the application of the reporting unit, issues a certificate stating that the financial affairs of the reporting unit are encompassed by the financial affairs of the associated State body; and

                     (b)  the associated State body has, in accordance with prescribed State legislation, prepared accounts, had those accounts audited, provided a copy of the audited accounts to its members and lodged the audited accounts with the relevant State authority; and

                     (c)  the reporting unit has lodged a copy of the audited accounts with FWA; and

                     (d)  any members of the reporting unit who are not also members of the associated State body have been provided with copies of the accounts at substantially the same time as the members of the reporting unit who are members of the associated State body; and

                     (e)  a report under section 254 has been prepared in respect of the activities of the reporting unit and has been provided to members of the reporting unit with the copies of the accounts.

270  Organisations with income of less than certain amount

             (1)  If, on the application of a reporting unit that is the whole of an organisation made after the end of a financial year, the General Manager is satisfied that the reporting unit’s income for the year did not exceed:

                     (a)  in the case of a financial year that, because of section 240, is a period other than 12 months—such amount as the General Manager considers appropriate in the circumstances; or

                     (b)  in any other case—$100,000 or such higher amount as is prescribed;

the General Manager must issue to the reporting unit a certificate to that effect.

             (2)  Where a certificate is issued under subsection (1) in relation to a reporting unit in relation to a financial year:

                     (a)  the following provisions of this section apply in relation to the reporting unit in relation to the year; and

                     (b)  except as provided in paragraph (c), this Part continues to apply in relation to the reporting unit in relation to the year; and

                     (c)  sections 253, 265, 266 and 268 do not apply in relation to the reporting unit in relation to the year.

             (3)  This Part (other than this section) applies to the reporting unit in relation to the year as if:

                     (a)  a reference to a general purpose financial report prepared or to be prepared under section 253 were a reference to a general purpose financial report prepared under subsection (4) of this section; and

                     (b)  the reference in subsection 272(5) to a general purpose financial report prepared under section 253 were a reference to a general purpose financial report prepared under subsection (4) of this section; and

                     (c)  the reference in sections 332 and 333 to documents lodged with FWA under section 268 were a reference to documents lodged with FWA in accordance with subsection (7) of this section.

             (4)  Within the prescribed period after the end of the financial year, the reporting unit must cause to be prepared, in accordance with the reporting guidelines, from the financial records kept under subsection 252(1) in relation to the year, the general purpose financial report required by those reporting guidelines.

Note:          This subsection is a civil penalty provision (see section 305).

             (5)  After the making to the reporting unit of the report of the auditor under section 257 in relation to the auditor’s inspection and audit of the financial records kept by the reporting unit in relation to the year, and before the end of the financial year immediately following the year, the reporting unit must cause a copy of the report, together with copies of the general purpose financial report to which the auditor’s report relates, to be presented to a meeting of the members of the reporting unit.

Note:          This subsection is a civil penalty provision (see section 305).

             (6)  Where a member of a reporting unit requests the reporting unit to provide to the member a copy of the auditor’s report and the general purpose financial report, the reporting unit must provide a copy of each of the documents to the member, free of charge, within 14 days after receiving the request.

Note:          This subsection is a civil penalty provision (see section 305).

             (7)  The reporting unit must, within 90 days (or such longer period as the General Manager allows) after the making to the reporting unit of the report under section 257, lodge with the General Manager copies of the auditor’s report and the general purpose financial report together with a certificate by a prescribed designated officer that the information contained in the general purpose financial report is correct.

Note:          This subsection is a civil penalty provision (see section 305).

271  Exemption from this Part of certain reporting units

             (1)  If, on the application of a reporting unit, the General Manager is satisfied, after considering such circumstances (if any) as are prescribed, that the reporting unit did not have any financial affairs in a financial year, the General Manager may issue to the reporting unit a certificate to that effect in respect of the financial year.

             (2)  The certificate exempts the reporting unit from the requirements of this Part in respect of the financial year.

             (3)  The application must be made to the General Manager within 90 days, or such longer period as the General Manager allows, after the end of the financial year.

 

Division 7—Members’ access to financial records

272  Information to be provided to members or General Manager

             (1)  A member of a reporting unit, or the General Manager, may apply to the reporting unit for specified prescribed information in relation to the reporting unit to be made available to the person making the application.

             (2)  The application must be in writing and must specify the period within which, and the manner in which, the information is to be made available. The period must not be less than 14 days after the application is given to the reporting unit.

             (3)  A reporting unit must comply with an application made under subsection (1).

Note:          This subsection is a civil penalty provision (see section 305).

             (4)  The General Manager may only make an application under subsection (1) at the request of a member of the reporting unit concerned, and the General Manager must provide to a member information received because of an application made at the request of the member.

             (5)  A general purpose financial report prepared under section 253, a concise report prepared under section 265 and a report prepared under subsection 270(4) must include a notice drawing attention to subsections (1), (2) and (3) of this section and setting out those subsections.

Note:          This subsection is a civil penalty provision (see section 305).

             (6)  Without limiting the information that may be prescribed under subsection (1), the information prescribed must include details (including the amount) of any fees paid by the reporting unit for payroll deduction services provided by a person who is an employer of:

                     (a)  the member making the application for information; or

                     (b)  the member at whose request the application was made.

273  Order for inspection of financial records

             (1)  On application by a member of a reporting unit, FWA may make an order:

                     (a)  authorising the applicant to inspect the financial records of the reporting unit specified in the order; or

                     (b)  authorising another person (whether a member or not) to inspect the financial records of the reporting unit specified in the order on the applicant’s behalf.

This subsection is subject to subsections (2) and (3).

             (2)  FWA may only make the order if it is satisfied:

                     (a)  that the applicant is acting in good faith; and

                     (b)  there are reasonable grounds for suspecting a breach of:

                              (i)  a provision of this Part; or

                             (ii)  the reporting guidelines; or

                            (iii)  a regulation made for the purposes of this Part; or

                            (iv)  a rule of a reporting unit relating to its finances or financial administration; and

                     (c)  it is reasonable to expect that an examination of the financial records will assist in determining if there is such a breach.

             (3)  FWA may only make an order authorising the inspection of financial records that relate to the suspected breach mentioned in paragraph (2)(b).

             (4)  A person authorised to inspect the financial records may make copies of the financial records unless FWA orders otherwise.

274  Frivolous or vexatious applications

             (1)  A person must not make an application under section 273 that is vexatious or without reasonable cause.

Note:          This subsection is a civil penalty provision (see section 305).

             (2)  If FWA considers an application under section 273 to be vexatious or without reasonable cause, FWA must dismiss the application as soon as possible.

275  Ancillary orders

                   If FWA makes an order under section 273, FWA may make any other orders it considers appropriate, including any or all of the following:

                     (a)  an order limiting the use that a person who inspects the financial records may make of information obtained during the inspection;

                     (b)  an order limiting the right of a person who inspects the financial records to make copies in accordance with subsection 273(4);

                     (c)  an order that the reporting unit is not required to provide the names and addresses of its members.

276  Disclosure of information acquired in inspection

             (1)  An applicant who inspects the financial records under section 273, or a person who inspects the financial records on behalf of an applicant, must not disclose information obtained during the inspection unless the disclosure is to:

                     (a)  a member of the staff of FWA; or

                     (b)  the applicant.

             (2)  A person who receives information under paragraph (1)(a) or (b) must not disclose the information other than to another person covered by one of those paragraphs.

Note:          This section is a civil penalty provision (see section 305).

277  Reporting unit or committee of management may allow member to inspect books

                   The committee of management of a reporting unit, or the reporting unit by a resolution passed at a general meeting, may authorise a member to inspect financial records of the reporting unit.

278  FWA to be advised of breaches of Part or rules etc. found during inspection

             (1)  If, as a result of inspecting the financial records of a reporting unit, a person reasonably believes that a breach of:

                     (a)  a provision of this Part; or

                     (b)  the reporting guidelines; or

                     (c)  a regulation made for the purposes of this Part; or

                     (d)  a rule of a reporting unit relating to its finances or financial administration;

may have occurred, the person must give FWA written notice to that effect and give to FWA any relevant information obtained during the inspection.

             (2)  If FWA receives notice under subsection (1) and FWA is satisfied that there are reasonable grounds for believing that there has been a breach of:

                     (a)  a provision of this Part; or

                     (b)  the reporting guidelines; or

                     (c)  a regulation made for the purposes of this Part; or

                     (d)  a rule of a reporting unit relating to its finances or financial administration;

FWA must refer the matter to the General Manager.

Note:          Where a matter is referred, it will be investigated under section 334.

279  Constitution of FWA

                   For the purposes of this Division, FWA must be constituted by the President or a Deputy President.

 

Part 4—Access to organisations’ books

  

280  Right of access to organisation’s books

Right while officer

             (1)  An officer of an organisation or a branch may inspect the books of the organisation at all reasonable times for the purposes of a legal proceeding:

                     (a)  to which the officer is a party; or

                     (b)  that the officer proposes in good faith to bring; or

                     (c)  that the officer has reason to believe will be brought against him or her;

where the officer reasonably believes that the books contain information that is relevant to the proceedings.

Right during 7 years after ceasing to be officer

             (2)  A person who has ceased to be an officer of an organisation or a branch may inspect the books of the organisation at all reasonable times for the purposes of a legal proceeding:

                     (a)  to which the person is a party; or

                     (b)  that the person proposes in good faith to bring; or

                     (c)  that the person has reason to believe will be brought against him or her;

where the person reasonably believes that the books contain information that is relevant to the proceedings. This right continues for 7 years after the person ceased to be an officer of the organisation or the branch.

Right to take copies

             (3)  A person authorised to inspect books under this section for the purposes of a legal proceeding may make copies of the books for the purposes of those proceedings.

             (4)  Where a person obtains copies under subsection (3), the organisation is entitled to recover from the person any costs incurred by the organisation in providing the copies.

Organisation or branch not to refuse access

             (5)  An organisation or branch must allow a person to exercise his or her rights to inspect or take copies of the books under this section.

Meaning of books

             (6)  In this section:

books includes:

                     (a)  a register; and

                     (b)  any other record of information; and

                     (c)  financial reports or financial records, however compiled, recorded or stored; and

                     (d)  a document.

 

Chapter 9—Conduct of officers and employees

Part 1—Simplified outline of Chapter

  

281  Simplified outline

 

Part 2—General duties in relation to the financial management of organisations

Division 1—Preliminary

282  Simplified outline

283  Part only applies in relation to financial management

                   This Part only applies in relation to officers and employees of an organisation or a branch of an organisation to the extent that it relates to the exercise of powers or duties of those officers and employees related to the financial management of the organisation or branch.

284  Meaning of involved

                   For the purposes of this Part, a person is involved in a contravention if, and only if, the person has:

                     (a)  aided, abetted, counselled or procured the contravention; or

                     (b)  induced, whether by threats or promises or otherwise, the contravention; or

                     (c)  been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

                     (d)  conspired with others to effect the contravention.

 

Division 2—General duties in relation to the financial management of organisations

285  Care and diligence—civil obligation only

             (1)  An officer of an organisation or a branch must exercise his or her powers and discharge his or her duties with the degree of care and diligence that a reasonable person would exercise if he or she:

                     (a)  were an officer of an organisation or a branch in the organisation’s circumstances; and

                     (b)  occupied the office held by, and had the same responsibilities within the organisation or a branch as, the officer.

Note:          This subsection is a civil penalty provision (see section 305).

             (2)  An officer of an organisation or a branch who makes a judgment to take or not take action in respect of a matter relevant to the operations of the organisation or branch is taken to meet the requirements of subsection (1), and their equivalent duties at common law and in equity, in respect of the judgment if he or she:

                     (a)  makes the judgment in good faith for a proper purpose; and

                     (b)  does not have a material personal interest in the subject matter of the judgment; and

                     (c)  informs himself or herself about the subject matter of the judgment to the extent he or she reasonably believes to be appropriate; and

                     (d)  rationally believes that the judgment is in the best interests of the organisation.

The officer’s belief that the judgment is in the best interests of the organisation is a rational one unless the belief is one that no reasonable person in his or her position would hold.

Note:          This subsection only operates in relation to duties under this section and their equivalents at common law or in equity (including the duty of care that arises under the common law principles governing liability for negligence)—it does not operate in relation to duties under any other provision of this Act or under any other laws.

286  Good faith—civil obligations

             (1)  An officer of an organisation or a branch must exercise his or her powers and discharge his or her duties:

                     (a)  in good faith in what he or she believes to be the best interests of the organisation; and

                     (b)  for a proper purpose.

Note:          This subsection is a civil penalty provision (see section 305).

             (2)  A person who is involved in a contravention of subsection (1) contravenes this subsection.

Note:          This subsection is a civil penalty provision (see section 305).

287  Use of position—civil obligations

             (1)  An officer or employee of an organisation or a branch must not improperly use his or her position to:

                     (a)  gain an advantage for himself or herself or someone else; or

                     (b)  cause detriment to the organisation or to another person.

Note:          This subsection is a civil penalty provision (see section 305).

             (2)  A person who is involved in a contravention of subsection (1) contravenes this subsection.

Note:          This subsection is a civil penalty provision (see section 305).

288  Use of information—civil obligations

             (1)  A person who obtains information because he or she is, or has been, an officer or employee of an organisation or a branch must not improperly use the information to:

                     (a)  gain an advantage for himself or herself or someone else; or

                     (b)  cause detriment to the organisation or to another person.

Note 1:       This duty continues after the person stops being an officer or employee of the organisation or branch.

Note 2:       This subsection is a civil penalty provision (see section 305).

             (2)  A person who is involved in a contravention of subsection (1) contravenes this subsection.

Note:          This subsection is a civil penalty provision (see section 305).

289  Effect of ratification by members

             (1)  If the members of an organisation ratify or approve a contravention of section 285, 286, 287 or 288, the ratification or approval:

                     (a)  does not prevent the commencement of proceedings for a contravention of the section; and

                     (b)  does not have the effect that proceedings brought for a contravention of the section must be determined in favour of the defendant.

             (2)  If members of an organisation ratify or approve a contravention of section 285, 286, 287 or 288, the Federal Court may take the ratification or approval into account in deciding what order or orders to make under section 306, 307 or 308 in proceedings brought for a contravention of the section. In doing this, it must have regard to:

                     (a)  how well‑informed about the conduct the members were when deciding whether to ratify or approve the contravention; and

                     (b)  whether the members who ratified or approved the contravention were acting for proper purposes.

290  Compliance with statutory duties

                   An officer or employee does not contravene section 286, 287 or 288 by doing an act that another provision of this Act or the Fair Work Act requires the officer or employee to do.

291  Interaction of sections 285 to 289 with other laws etc.

                   Sections 285 to 289:

                     (a)  have effect in addition to, and not in derogation of, any rule of law relating to the duty or liability of a person because of his or her office or employment in relation to an organisation or a branch; and

                     (b)  do not prevent the commencement of proceedings for a breach of duty or in respect of a liability referred to in paragraph (a).

This section does not apply to subsection 285(2) to the extent to which it operates on the duties at common law and in equity that are equivalent to the requirements of subsection 285(1).

292  Reliance on information or advice provided by others

                   If:

                     (a)  an officer relies on information, or professional or expert advice, given or prepared by:

                              (i)  an employee of the organisation or the branch whom the officer believes on reasonable grounds to be reliable and competent in relation to the matters concerned; or

                             (ii)  a professional adviser or expert in relation to matters that the officer believes on reasonable grounds to be within the person’s professional or expert competence; or

                            (iii)  another officer in relation to matters within the officer’s authority; or

                            (iv)  a collective body on which the officer did not serve in relation to matters within the collective body’s authority; and

                     (b)  the reliance was made:

                              (i)  in good faith; and

                             (ii)  after making proper inquiry if the circumstances indicated the need for inquiry; and

                     (c)  the reasonableness of the officer’s reliance on the information or advice arises in proceedings brought to determine whether an officer has performed a duty under this Part or an equivalent duty at common law or in equity;

the officer’s reliance on the information or advice is taken to be reasonable unless the contrary is proved.

293  Responsibility for actions of other person

             (1)  If the officers of an organisation or a branch delegate a power under its rules, each of those officers is responsible for the exercise of the power by the person to whom the power was delegated as if the power had been exercised by the officer.

             (2)  An officer is not responsible under subsection (1) if:

                     (a)  the officer believed on reasonable grounds at all times that the person to whom the power was delegated would exercise the power in conformity with the duties imposed on officers of the organisation or the branch by this Act or the Fair Work Act; and

                     (b)  the officer believed:

                              (i)  on reasonable grounds; and

                             (ii)  in good faith; and

                            (iii)  after making proper inquiry if the circumstances indicated the need for inquiry;

                            that the person to whom the power was delegated was reliable and competent in relation to the power delegated.

 

Part 3—General duties in relation to orders and directions

Division 1—Preliminary

294  Simplified outline

295  Meaning of involved

                   For the purposes of this Part, a person is involved in a contravention if, and only if, the person has:

                     (a)  aided, abetted, counselled or procured the contravention; or

                     (b)  induced, whether by threats or promises or otherwise, the contravention; or

                     (c)  been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

                     (d)  conspired with others to effect the contravention.

296  Application to officers and employees of branches

                   In this Part:

                     (a)  a reference to an officer of an organisation includes a reference to an officer of a branch of an organisation; and

                     (b)  a reference to an employee of an organisation includes a reference to an employee of a branch of an organisation.

 

Division 2—General duties in relation to orders and directions

297  Order or direction applying to organisation—civil obligation

             (1)  This section applies if:

                     (a)  the Federal Court or FWA has made an order or a direction under this Act or the Fair Work Act; and

                     (b)  the order or direction is in force; and

                     (c)  the order or direction applies to an organisation.

             (2)  An officer or employee of the organisation must not do anything that would cause the organisation to contravene the order or direction, knowing, or reckless as to whether, the doing of the thing would result in the contravention.

Note:          This subsection is a civil penalty provision (see section 305).

             (3)  An officer or employee of the organisation who is involved in a contravention of the order or direction, or of subsection (2), contravenes this subsection.

Note:          This subsection is a civil penalty provision (see section 305).

298  Prohibition order or direction applying to organisation—civil obligation

             (1)  This section applies if:

                     (a)  the Federal Court or FWA has made an order or a direction under this Act or the Fair Work Act; and

                     (b)  the order or direction is in force; and

                     (c)  the order or direction applies to an organisation; and

                     (d)  the order or direction prohibits the organisation from doing something.

             (2)  An officer or employee of the organisation must not do anything that would contravene the order or direction if the order or direction had applied to him or her, knowing, or reckless as to whether, the doing of the thing would result in such a contravention.

Note:          This subsection is a civil penalty provision (see section 305).

             (3)  An officer or employee of the organisation who is involved in a contravention of subsection (2) contravenes this subsection.

Note:          This subsection is a civil penalty provision (see section 305).

299  Order or direction applying to officer—civil obligation

             (1)  This section applies if:

                     (a)  the Federal Court or FWA has made an order or a direction under this Act or the Fair Work Act; and

                     (b)  the order or direction is in force; and

                     (c)  the order or direction applies to an officer of an organisation.

             (2)  The officer must not knowingly or recklessly contravene the order or direction.

Note:          This subsection is a civil penalty provision (see section 305).

             (3)  An officer or employee of the organisation who is involved in a contravention of subsection (2) contravenes this subsection.

Note:          This subsection is a civil penalty provision (see section 305).

300  Prohibition order or direction applying to officer—civil obligation

             (1)  This section applies if:

                     (a)  the Federal Court or FWA has made an order or a direction under this Act or the Fair Work Act; and

                     (b)  the order or direction is in force; and

                     (c)  the order or direction applies to an officer of an organisation; and

                     (d)  the order or direction prohibits the officer from doing something.

             (2)  An officer or employee of the organisation must not do anything that would contravene the order or direction if the order or direction had applied to him or her, knowing, or reckless as to whether, the doing of the thing would result in such a contravention.

Note:          This subsection is a civil penalty provision (see section 305).

             (3)  An officer or employee of the organisation who is involved in a contravention of subsection (2) contravenes this subsection.

Note:          This subsection is a civil penalty provision (see section 305).

301  Order or direction applying to employee—civil obligation

             (1)  This section applies if:

                     (a)  the Federal Court or FWA has made an order or a direction under this Act or the Fair Work Act; and

                     (b)  the order or direction is in force; and

                     (c)  the order or direction applies to an employee of an organisation.

             (2)  The employee must not knowingly or recklessly contravene the order or direction.

Note:          This subsection is a civil penalty provision (see section 305).

             (3)  An officer or employee of the organisation who is involved in a contravention of subsection (2) contravenes this subsection.

Note:          This subsection is a civil penalty provision (see section 305).

302  Prohibition order or direction applying to employee—civil obligation

             (1)  This section applies if:

                     (a)  the Federal Court or FWA has made an order or a direction under this Act or the Fair Work Act; and

                     (b)  the order or direction is in force; and

                     (c)  the order or direction applies to an employee of an organisation; and

                     (d)  the order or direction prohibits the employee from doing something.

             (2)  An officer or employee of the organisation must not do anything that would contravene the order or direction if the order or direction had applied to him or her, knowing, or reckless as to whether, the doing of the thing would result in such a contravention.

Note:          This subsection is a civil penalty provision (see section 305).

             (3)  An officer or employee of the organisation who is involved in a contravention of subsection (2) contravenes this subsection.

Note:          This subsection is a civil penalty provision (see section 305).

303  Order or direction applying to member of organisation—civil obligation

             (1)  This section applies if:

                     (a)  the Federal Court or FWA has made an order or a direction under this Act or the Fair Work Act; and

                     (b)  the order or direction is in force; and

                     (c)  the order or direction applies to a member of an organisation.

             (2)  An officer or employee of the organisation who is involved in a contravention of the order or direction contravenes this subsection.

Note:          This subsection is a civil penalty provision (see section 305).

303A  Application of this Division

                   This Division applies in relation to:

                     (a)  orders and directions made by the Federal Court or FWA before, on or after the commencement of this Division; and

                     (b)  acts done or omissions made on or after that commencement.

 

Chapter 10—Civil penalties

Part 1—Simplified outline of Chapter

  

304  Simplified outline

 

Part 2—Civil consequences of contravening civil penalty provisions

  

305  Civil penalty provisions

             (1)  Subject to this Part, an application may be made to the Federal Court for orders under sections 306, 307 and 308 in respect of conduct in contravention of a civil penalty provision.

             (2)  These provisions are the civil penalty provisions:

                     (a)  subsection 52(1) (declaration about register);

                     (b)  subsection 52(3) (false statement);

                    (ba)  subsection 95(3C) (direction to provide information);

                     (c)  subsection 104(1) (declaration about register);

                     (d)  subsection 104(3) (false statement);

                     (e)  subsection 151(2) and paragraph 151(11)(a) (lodging membership agreements);

                      (f)  subsection 152(3) (lodging assets and liabilities agreements);

                     (g)  section 169 (request for statement of membership);

                     (h)  subsection 172(1) (removal of non‑financial members from register);

                      (i)  section 175 (false representation as to membership);

                      (j)  section 176 (false representation about resignation);

                     (k)  subsection 189(2) (lodging election information);

                      (l)  subsection 192(1) (declaration about register);

                    (m)  subsection 192(3) (false statement in declaration);

                     (n)  subsections 198(1), (4), (5) and (8) (response to post‑election report);

                     (o)  subsections 230(1) and (2) (records to be kept and lodged by organisations);

                     (p)  subsections 231(1) and (2) (records to be held for 7 years);

                     (q)  subsections 233(1) and (2) (lodging of information with FWA);

                      (r)  subsection 233(3) (false statement about records);

                      (s)  subsection 235(2) (access to records);

                      (t)  subsections 236(1) and (2) (delivery of records);

                     (u)  subsection 237(1) (particulars of loans, grants and donations);

                     (v)  subsection 237(3) (false statement about loans, grants and donations);

                    (w)  sections 253 and 254 (keeping and preparation of accounts);

                     (x)  subsection 256(1) (appointment of auditors);

                     (y)  subsections 256(3), (4), (5) and (6) (persons not to be auditors);

                      (z)  subsections 257(10) and (11) (auditor’s report);

                    (za)  section 259 (forwarding notices to auditors);

                    (zb)  subsections 263(2), (3) and (5) (removal of auditor);

                    (zc)  subsection 264(3) (distribution of auditor’s reasons for resignation);

                    (zd)  subsections 265(1), (4) and (5) and 266(1) and section 267 (accounts, reports etc.);

                    (ze)  section 268 (failure to lodge accounts etc.);

                    (zf)  subsections 270(4), (5), (6) and (7) (accounts of low income organisations);

                    (zg)  subsections 272(3) and (5) (providing information to members);

                    (zh)  subsection 274(1) (frivolous or vexatious applications);

                     (zi)  section 276 (disclosure of information);

                     (zj)  subsections 285(1), 286(1) and (2), 287(1) and (2), and 288(1) and (2) (officers’ duties);

                    (zk)  subsections 297(2) and (3), 298(2) and (3), 299(2) and (3), 300(2) and (3), 301(2) and (3), 302(2) and (3), and 303(2) (officers’ duties);

                     (zl)  subsection 347(1) (provision of rules to members).

             (3)  For the purposes of this Part, any contravention of a civil penalty provision by a branch or reporting unit is taken to be a contravention by the organisation of which the branch or reporting unit is part.

306  Pecuniary penalty orders that the Federal Court may make

             (1)  In respect of conduct in contravention of a civil penalty provision, the Federal Court may make an order imposing on the person or organisation whose conduct contravened the civil penalty provision a pecuniary penalty of not more than:

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

                     (b)  in any other case—20 penalty units.

             (2)  A penalty payable under this section is a civil debt payable to the Commonwealth. The Commonwealth may enforce the order as if it were an order made in civil proceedings against the person, reporting unit or organisation to recover a debt due by the person. The debt arising from the order is taken to be a judgment debt.

307  Compensation orders

Compensation for damage suffered—contravention of Part 2 of Chapter 9

             (1)  The Federal Court may order a person to compensate an organisation for damage suffered by the organisation if:

                     (a)  the person has contravened a civil penalty provision in Part 2 of Chapter 9 in relation to the organisation; and

                     (b)  the damage resulted from the contravention.

The order must specify the amount of the compensation.

Compensation for damage suffered—contravention of Part 3 of Chapter 9

          (1A)  The Federal Court may order a person to compensate an organisation for damage suffered by the organisation if:

                     (a)  the person has contravened a civil penalty provision in Part 3 of Chapter 9 in relation to the organisation; and

                     (b)  the Court is satisfied that the organisation took reasonable steps to prevent the contravention of the provision; and

                     (c)  the damage resulted from the contravention.

The order must specify the amount of the compensation.

Damage includes profits

             (2)  In determining the damage suffered by the organisation for the purposes of making a compensation order, the Court is to have regard to any profits made by any person resulting from the contravention.

Recovery of damage

             (3)  A compensation order may be enforced as if it were a judgment of the Court.

308  Other orders

             (1)  The Federal Court may make such other orders as the Court considers appropriate in all the circumstances of the case.

             (2)  Without limiting subsection (1), the orders may include injunctions (including interim injunctions), and any other orders, that the Court thinks necessary to stop the conduct or remedy its effects.

             (3)  Orders may be made under this section whether or not orders are also made under section 306 or 307.

309  Effect of section 307

                   Section 307:

                     (a)  has effect in addition to, and not in derogation of, any rule of law about the duty or liability of a person because of the person’s office or employment in relation to an organisation; and

                     (b)  does not prevent proceedings from being instituted in respect of such a duty or in respect of such a liability.

310  Who may apply for an order

Application by General Manager

             (1)  The General Manager, or some other person authorised in writing by the General Manager under this subsection to make the application, may apply for an order under this Part (other than an order in relation to a contravention of a provision covered by paragraph 305(2)(zk)).

Application by Minister

             (2)  The Minister, or some other person authorised in writing by the Minister under this subsection to make the application, may apply for an order under this Part in relation to a contravention of a provision covered by paragraph 305(2)(zk).

Application by organisation

             (3)  An organisation may apply for a compensation order.

             (4)  An organisation may intervene in an application for a pecuniary penalty order or an order under section 308 in relation to the organisation. The organisation is entitled to be heard on all matters other than whether the order should be made.

311  Civil proceedings after criminal proceedings

                   The Federal Court must not make a pecuniary penalty order against a person or organisation for a contravention if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention.

312  Criminal proceedings during civil proceedings

             (1)  Proceedings for a pecuniary penalty order against a person or organisation are stayed if:

                     (a)  criminal proceedings are started or have already been started against the person or organisation for an offence; and

                     (b)  the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention.

             (2)  The proceedings for the order may be resumed if the person or organisation is not convicted of the offence. Otherwise, the proceedings for the order are dismissed.

313  Criminal proceedings after civil proceedings

                   Criminal proceedings may be started against a person or organisation for conduct that is substantially the same as conduct constituting a contravention of a civil penalty provision regardless of whether an order under this Part has been made against the person or organisation.

314  Evidence given in proceedings for penalty not admissible in criminal proceedings

                   Evidence of information given or evidence of production of documents by an individual is not admissible in criminal proceedings against the individual if:

                     (a)  the individual previously gave the evidence or produced the documents in proceedings for a pecuniary penalty order against the individual for a contravention of a civil penalty provision (whether or not the order was made); and

                     (b)  the conduct alleged to constitute the offence is substantially the same as the conduct that was claimed to constitute the contravention.

However, this does not apply to a criminal proceeding in respect of the falsity of the evidence given by the individual in the proceedings for the pecuniary penalty order.

315  Relief from liability for contravention of civil penalty provision

             (1)  In this section:

eligible proceedings:

                     (a)  means proceedings for a contravention of a civil penalty provision; and

                     (b)  does not include proceedings for an offence.

             (2)  If:

                     (a)  eligible proceedings are brought against a person or organisation; and

                     (b)  in the proceedings it appears to the Federal Court that the person or organisation has, or may have, contravened a civil penalty provision but that:

                              (i)  the person or organisation has acted honestly; and

                             (ii)  having regard to all the circumstances of the case, the person or organisation ought fairly to be excused for the contravention;

the Court may relieve the person or organisation either wholly or partly from a liability to which the person or organisation would otherwise be subject, or that might otherwise be imposed on the person or organisation, because of the contravention.

             (3)  If a person or organisation thinks that eligible proceedings will or may be begun against them, they may apply to the Federal Court for relief.

             (4)  On an application under subsection (3), the Court may grant relief under subsection (2) as if the eligible proceedings had been begun in the Court.

316  Power to grant relief

             (1)  If:

                     (a)  civil proceedings are brought against an officer of an organisation for negligence, default, breach of trust or breach of duty in a capacity as such an officer; and

                     (b)  in the proceedings it appears to the court before which the proceedings are taken that:

                              (i)  the officer is or may be liable in respect of the negligence, default or breach; and

                             (ii)  the officer has acted honestly; and

                            (iii)  having regard to all the circumstances of the case (including those connected with the officer’s appointment), the officer ought fairly to be excused for the negligence, default or breach;

the court may relieve the officer either wholly or partly from liability on the terms that the court thinks appropriate.

             (2)  An officer of an organisation who has reason to apprehend that a claim will or might be made against him or her for negligence, default, breach of trust or breach of duty in a capacity as such an officer may apply to the Federal Court for relief. On the application, the Court has the same power to relieve the officer as it would have had under subsection (1) if it had been a court before which proceedings against the officer for negligence, default, breach of trust or breach of duty had been brought.

 

Chapter 11—Miscellaneous

Part 1—Simplified outline of Chapter

  

317  Simplified outline

 

Part 2—Validating provisions for organisations

  

318  Definition

                   In this Part:

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

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

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

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

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

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

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

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

319  Validation of certain acts done in good faith

Acts relating to elections, appointments, organisation’s rules

             (1)  Subject to this section and section 321, all acts done in good faith by a collective body of an organisation or branch of an organisation, or by persons purporting to act as such a collective body, are valid in spite of any invalidity that may later be discovered in:

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

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

Acts done by person holding or purporting to hold office

             (2)  Subject to this section and section 321, all acts done in good faith by a person holding or purporting to hold an office or position in an organisation or branch are valid in spite of any invalidity that may later be discovered in:

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

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

Meaning of purporting to be member or office holder

             (3)  For the purposes of this section:

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

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

Meaning of good faith

             (4)  For the purposes of this section:

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

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

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

                     (d)  an invalidity in:

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

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

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

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

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

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

Actions to which this section applies

             (5)  This section applies:

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

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

Certain invalid actions not validated by this section

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

Relationship between this section and Part 3 of Chapter 7

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

320  Validation of certain acts after 4 years

             (1)  Subject to this section and section 321, after the end of 4 years from:

                     (a)  the doing of an act:

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

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

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

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

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

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

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

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

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

321  Order affecting application of section 319 or 320

             (1)  Where, on an application for an order under this section, the Federal Court is satisfied that the application of section 319 or 320 in relation to an act would do substantial injustice, having regard to the interests of:

                     (a)  the organisation; or

                     (b)  members or creditors of the organisation; or

                     (c)  persons having dealings with the organisation;

the Court must, by order, declare accordingly.

             (2)  Where a declaration is made under subsection (1), section 319 or 320, as the case requires, does not apply, and is taken never to have applied, in relation to the act specified in the declaration.

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

             (4)  The Court may determine:

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

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

             (5)  In this section:

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

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

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

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

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

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

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

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

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

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

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

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

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

                     (a)  the organisation; or

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

                     (c)  any person having dealings with the organisation.

             (6)  The Court may determine:

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

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

             (7)  This section applies:

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

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

323  Federal Court may order reconstitution of branch etc.

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

                     (a)  a part of the organisation, including:

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

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

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

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

and the Court may make a declaration accordingly.

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

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

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

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

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

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

             (5)  The Court may determine:

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

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

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

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

 

Part 3—Financial assistance and costs

Division 1—Financial assistance

324  Authorisation of financial assistance

             (1)  Subject to this Division, the Minister may, on application made by a person under subsection (2), authorise payment by the Commonwealth to the person of financial assistance in relation to the whole or part of the person’s relevant costs, if the Minister is satisfied:

                     (a)  that hardship is likely to be caused to the person if the application is refused; and

                     (b)  that in all the circumstances it is reasonable that the application should be granted.

             (2)  An application may be made to the Minister for financial assistance under this Division by the following persons (other than organisations) in the following circumstances:

                     (a)  a person who made an application under section 163, 164 or 164A, where the Federal Court granted a rule calling on another person, or an organisation, to show cause why an order should not be made under section 163, 164 or 164A in relation to the other person or organisation;

                     (b)  a person who was a party, otherwise than as an applicant, to a proceeding under section 163, 164 or 164A;

                     (c)  a person who made an application under section 164, where the Federal Court made an interim order under subsection 164(4);

                     (d)  a person who applied for an inquiry into an election, where the Federal Court found that an irregularity happened;

                     (e)  a person who applied for an inquiry into an election, where the Federal Court certified under subsection 325(1) that the person acted reasonably in applying;

                      (f)  a person who incurred costs in relation to an inquiry into an election, other than a person who applied for the inquiry;

                     (g)  a member of an organisation who made an application under subsection 215(5), where the Federal Court declared that the person the subject of the application was not eligible to be a candidate for election or to be elected or appointed or had ceased to hold office;

                     (h)  a member of an organisation who made an application under subsection 215(5), where the Federal Court certified under subsection 325(2) that the member acted reasonably in making the application;

                      (j)  a person who incurred costs in relation to an application made under subsection 215(5), other than the person who made the application;

                     (k)  a person who made an application to the Federal Court under section 216 or 217, where, on the application, the Federal Court granted the person leave under paragraph 216(2)(a) or 217(2)(a) or refused the person leave under paragraph 216(2)(b) or 217(2)(b);

                    (m)  a person who applied for an inquiry into a ballot under Part 2 of Chapter 3, where the Federal Court found that an irregularity happened;

                     (n)  a person who applied for an inquiry into a ballot under Part 2 of Chapter 3, where the Federal Court certified under subsection 325(3) that the person acted reasonably in applying;

                     (o)  a person who incurred costs in relation to an inquiry into a ballot under Part 2 of Chapter 3, other than the person who applied for the inquiry;

                    (oa)  a person who was a party to a proceeding under Part 3 of Chapter 3;

                     (p)  a person who was a party to a proceeding under Part 2 of Chapter 11;

                     (q)  a person who made an application under section 167, where the Federal Court granted a rule calling on another person, or an organisation, to show cause why an order should not be made under subsection 167(2) in relation to the other person or organisation.

             (3)  In subsection (1), relevant costs means:

                     (a)  in the case of a person referred to in paragraph (2)(a), (c), (k) or (q)—the costs incurred by the person in relation to the application concerned; or

                     (b)  in the case of a person referred to in paragraph (2)(b) or (p)—the costs incurred by the person in relation to the proceeding concerned; or

                     (c)  in the case of a person referred to in paragraph (2)(d), (e), (m) or (n)—the costs incurred by the person in relation to the inquiry concerned; or

                     (d)  in the case of a person referred to in paragraph (2)(f), (j) or (o)—the costs referred to in that paragraph; or

                     (e)  in the case of a member of an organisation referred to in paragraph (2)(g) or (h)—the costs incurred by the member in relation to the application concerned.

325  Federal Court may certify that application was reasonable

             (1)  Where a person has applied for an inquiry into an election but the Federal Court does not find that an irregularity happened, the Court may certify for the purposes of this Division that the person acted reasonably in applying.

             (2)  Where a member of an organisation has made an application under subsection 215(5) but the Federal Court does not declare that the person who is the subject of the application was not eligible to be a candidate or to be elected or appointed or had ceased to hold office, the Court may certify for the purposes of this Division that the member acted reasonably in making the application.

             (3)  Where a person has applied for an inquiry into a ballot under Part 2 (amalgamation) or Part 3 (withdrawal from amalgamation) of Chapter 3 but the Federal Court does not find that an irregularity happened, the Court may certify that the person acted reasonably in applying.

326  Applications under sections 163, 164, 164A and 167

             (1)  The Minister may refuse an application made by a person referred to in paragraph 324(2)(a), (b), (c) or (q) if satisfied that:

                     (a)  the order sought in the proceeding concerned is the same or substantially the same as an order obtained or sought in another relevant proceeding and the proceeding involves the determination of the same or substantially the same questions of fact or law or mixed fact and law as were or are involved in the determination of the other relevant proceeding; or

                     (b)  it would be contrary to the interests of justice to grant financial assistance to the applicant in relation to the proceeding concerned.

             (2)  In subsection (1):

other relevant proceeding means a proceeding that:

                     (a)  was instituted, whether before or after the commencement of this section, before the institution of the proceeding in relation to which the application referred to in that subsection was made; and

                     (b)  has been heard and determined by, or is pending before, the Federal Court.

             (3)  Where the Minister authorises the payment of financial assistance on application made by a person referred to in paragraph 324(2)(a), (b), (c), or (q), subsections (4) and (5) of this section apply.

             (4)  The Minister may:

                     (a)  specify the amount, or determine from time to time the amounts, to be paid; or

                     (b)  authorise the payment of such amount as is determined, or such amounts as are determined from time to time, under directions of the Minister.

             (5)  The Minister may authorise payment to be made by the Commonwealth before or after the hearing or determination by the Federal Court of the proceeding concerned.

327  Fees for 2 counsel not normally to be paid

                   Nothing in this Division authorises a payment in relation to fees of more than one counsel appearing for the person applying for financial assistance unless 2 or more counsel appeared, or are to appear, for any other person at the hearing concerned.

328  Powers of Federal Court not affected

                   Nothing in this Division limits the power of the Federal Court to make an order as to the costs of proceedings before the Court.

 

Division 2—Costs

329  Costs only where proceeding instituted vexatiously etc.

             (1)  A person who is a party to a proceeding (including an appeal) in a matter arising under this Act must not be ordered to pay costs incurred by any other party to the proceeding unless the person instituted the proceeding vexatiously or without reasonable cause.

             (2)  In subsection (1):

costs includes all legal and professional costs and disbursements and expenses of witnesses.

 

Part 4—Inquiries and investigations

  

330  General Manager may make inquiries

             (1)  The General Manager may make inquiries as to whether the following are being complied with:

                     (a)  Part 3 of Chapter 8;

                     (b)  the reporting guidelines made under that Part;

                     (c)  regulations made for the purposes of that Part;

                     (d)  rules of a reporting unit relating to its finances or financial administration.

             (2)  The General Manager may make inquiries as to whether a civil penalty provision (see section 305) has been contravened.

             (3)  The person making the inquiries may take such action as he or she considers necessary for the purposes of making the inquiries. However, he or she cannot compel a person to assist with the inquiries under this section.

331  General Manager may conduct investigations

             (1)  If the General Manager is satisfied that there are reasonable grounds for doing so, the General Manager may conduct an investigation as to whether:

                     (a)  a provision of Part 3 of Chapter 8 has been contravened; or

                     (b)  the reporting guidelines made under that Part have been contravened; or

                     (c)  a regulation made for the purposes of that Part has been contravened; or

                     (d)  a rule of a reporting unit relating to its finances or financial administration has been contravened.

             (2)  If the General Manager is satisfied that there are reasonable grounds for doing so, the General Manager may conduct an investigation as to whether a civil penalty provision (see section 305) has been contravened.

             (3)  The General Manager may also conduct an investigation in the circumstances set out in the regulations.

             (4)  Where, having regard to matters that have been brought to notice in the course of, or because of, an investigation under subsection (1) or (2), the General Manager forms the opinion that there are grounds for investigating the finances or financial administration of the reporting unit, the General Manager may make the further investigation.

             (5)  An investigation may, but does not have to, follow inquiries under section 330.

332  Investigations arising from auditor’s report

             (1)  Subject to subsection (2), the General Manager must:

                     (a)  where the documents lodged with FWA under section 268 include a report of an auditor setting out any:

                              (i)  defect or irregularity; or

                             (ii)  deficiency, failure or shortcoming; and

                     (b)  where for any other reason the General Manager considers that a matter revealed in the documents should be investigated—investigate the matter.

             (2)  The General Manager is not required to investigate the matters raised in the report of the auditor if:

                     (a)  the defect, irregularity, deficiency, failure or shortcoming consists solely of the fact that the organisation concerned has kept financial records for its membership subscriptions separately on a cash basis as provided in subsection 252(4); or

                     (b)  after consultation with the reporting unit and the auditor, the General Manager is satisfied that the matters are trivial or will be remedied in the following financial year.

             (3)  Where, having regard to matters that have been brought to notice in the course of, or because of, an investigation under subsection (1), the General Manager forms the opinion that there are grounds for investigating the finances or the financial administration of the reporting unit, the General Manager may make the further investigation.

333  Investigations arising from request from members

             (1)  Where documents have been lodged with FWA under section 268, at least:

                     (a)  if the reporting unit has more than 5,000 members—250 members; or

                     (b)  in any other case—5% of the members of the reporting unit;

may request the General Manager to investigate the finances and the financial administration of the reporting unit.

             (2)  On receipt of a request under subsection (1), the General Manager must investigate the finances and the financial administration of the reporting unit concerned. The General Manager, in conducting the investigation, is not limited to the most recent financial year for which documents have been lodged and may investigate years for which documents are yet to be lodged.

             (3)  Where the General Manager receives more than one request in relation to a reporting unit during a financial year, the General Manager is only required to conduct one investigation but may conduct more than one investigation.

334  Investigations arising from referral under section 278

                   If a matter is referred to the General Manager under section 278, the General Manager must conduct an investigation.

335  Conduct of investigations

             (1)  This section applies to:

                     (a)  a designated officer or employee of the reporting unit concerned; and

                     (b)  a former designated officer or employee of the reporting unit; and

                     (c)  a person who held the position of auditor of the reporting unit during the period that is the subject of the investigation;

if the General Manager has reason to believe that the person:

                     (d)  has information or a document that is relevant to the investigation; or

                     (e)  is capable of giving evidence which the General Manager has reason to believe is relevant to the investigation.

             (2)  For the purpose of making an investigation, the General Manager may, by written notice, require the person:

                     (a)  to give to the General Manager, within the period (being a period of not less than 14 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 General Manager, at a reasonable time (being a time not less than 14 days after the notice is given) and place specified in the notice, any documents in the custody or under the control of the person, or to which he or she has access; and

                     (c)  to attend before the General Manager, at a reasonable time (being a time not less than 14 days after the notice is given) and place specified in the notice, to answer questions relating to matters relevant to the investigation, and to produce to the General Manager all records and other documents in the custody or under the control of the person relating to those matters.

             (3)  A notice requiring a person to attend must state that the person may be accompanied by another person. The other person may be, but does not have to be, a lawyer.

336  Action following an investigation

             (1)  If, at the conclusion of an investigation, the General Manager is satisfied that the reporting unit concerned has contravened:

                     (a)  a provision of Part 3 of Chapter 8; or

                     (b)  the reporting guidelines; or

                     (c)  a provision of the regulations; or

                     (d)  a rule of the reporting unit relating to the finances or financial administration of the reporting unit;

the General Manager must notify the reporting unit accordingly.

             (2)  In addition to taking action under subsection (1), the General Manager may do all or any of the following:

                     (a)  issue a notice to the reporting unit requesting that the reporting unit take specified action, within a specified period, to rectify the matter;

                     (b)  apply to the Federal Court for an order under Part 2 of Chapter 10 (civil penalty provisions);

                     (c)  refer the matter to the Director of Public Prosecutions for action in relation to possible criminal offences.

Note:          In appropriate circumstances, the General Manager may also make a determination in accordance with section 247 (determination of reporting units).

             (3)  The General Manager may, on application by the reporting unit, extend any periods specified in the notice issued under subsection (2).

             (4)  The reporting unit must comply with the request made in the notice issued under subsection (2).

             (5)  The Federal Court may, on application by the General Manager, make such orders as the Court thinks fit to ensure that the reporting unit complies with subsection (4).

337  Offences in relation to investigation by General Manager

             (1)  A person commits an offence if:

                     (a)  the person does not comply with:

                              (i)  a requirement under subsection 335(2) to attend before the General Manager; or

                             (ii)  a requirement under subsection 335(2) to give information or produce a document; or

                     (b)  the person gives information, or produces a document, in purported compliance with a requirement under subsection 335(2), and the person knows, or is reckless as to whether, the information or document is false or misleading; or

                     (c)  when attending before the General Manager in accordance with a requirement under subsection 335(2), the person makes a statement, whether orally or in writing, and the person knows, or is reckless as to whether, the statement is false or misleading.

Maximum penalty:    30 penalty units.

             (2)  Strict liability applies to paragraph (1)(a).

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (3)  Paragraph (1)(a) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

             (4)  A person is not excused from giving information, or producing a document, that the person is required to give or produce under subsection 335(2) on the ground that the information, or the production of the document, might tend to incriminate the person or expose the person to a penalty.

             (5)  However:

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

                     (b)  any information, document or thing obtained as a direct or indirect consequence of giving the information or producing 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, paragraph (1)(b) or (c).

 

Part 4A—Protection for whistleblowers

  

337A  Disclosures qualifying for protection under this Part

                   A disclosure of information by a person (the discloser) qualifies for protection under this Part if:

                     (a)  the discloser is one of the following:

                              (i)  an officer of an organisation, or of a branch of an organisation;

                             (ii)  an employee of an organisation, or of a branch of an organisation;

                            (iii)  a member of an organisation, or of a branch of an organisation; and

                     (b)  the disclosure is made to one of the following:

                              (i)  the General Manager;

                             (ii)  an FWA Member or a member of the staff of FWA;

                            (iii)  the Australian Building and Construction Commissioner;

                            (iv)  an Australian Building and Construction Inspector;

                             (v)  a member of the staff of the Office of the Fair Work Ombudsman (within the meaning of the Fair Work Act); and

                     (c)  the discloser informs the person to whom the disclosure is made of the discloser’s name before making the disclosure; and

                     (d)  the discloser has reasonable grounds to suspect that the information indicates that:

                              (i)  the organisation, or a branch of the organisation, has, or may have, contravened a provision of this Act or the Fair Work Act; or

                             (ii)  an officer or employee of the organisation, or of a branch of the organisation, has, or may have, contravened a provision of this Act or the Fair Work Act; and

                     (e)  the discloser makes the disclosure in good faith.

337B  Disclosure that qualifies for protection not actionable etc.

             (1)  If a person makes a disclosure that qualifies for protection under this Part:

                     (a)  the person is not subject to any civil or criminal liability for making the disclosure; and

                     (b)  no contractual or other remedy may be enforced, and no contractual or other right may be exercised, against the person on the basis of the disclosure.

Note:          This subsection does not provide that the person is not subject to any civil or criminal liability for conduct of the person that is revealed by the disclosure.

             (2)  Without limiting subsection (1):

                     (a)  the person has qualified privilege (see subsection (3)) in respect of the disclosure; and

                     (b)  a contract to which the person is a party may not be terminated on the basis that the disclosure constitutes a breach of the contract.

             (3)  For the purpose of paragraph (2)(a), qualified privilege, in respect of the disclosure, means that the person:

                     (a)  has qualified privilege in proceedings for defamation; and

                     (b)  is not, in the absence of malice on the person’s part, liable to an action for defamation at the suit of a person;

in respect of the disclosure.

             (4)  For the purpose of paragraph (3)(b), malice includes ill will to the person concerned or any other improper motive.

             (5)  This section does not limit or affect any right, privilege or immunity that a person has, apart from this section, as a defendant in proceedings, or an action, for defamation.

337C  Victimisation prohibited

Actually causing detriment to another person

             (1)  A person (the first person) contravenes this subsection if:

                     (a)  the first person engages in conduct; and

                     (b)  the first person’s conduct causes any detriment to another person (the second person); and

                     (c)  the first person intends that his or her conduct cause detriment to the second person; and

                     (d)  the first person engages in his or her conduct because the second person or a third person made a disclosure that qualifies for protection under this Part.

Threatening to cause detriment to another person

             (2)  A person (the first person) contravenes this subsection if:

                     (a)  the first person makes to another person (the second person) a threat to cause any detriment to the second person or to a third person; and

                     (b)  the first person:

                              (i)  intends the second person to fear that the threat will be carried out; or

                             (ii)  is reckless as to causing the second person to fear that the threat will be carried out; and

                     (c)  the first person makes the threat because a person:

                              (i)  makes a disclosure that qualifies for protection under this Part; or

                             (ii)  may make a disclosure that would qualify for protection under this Part.

Officers and employees involved in contravention

             (3)  If an organisation, or a branch of an organisation, contravenes subsection (1) or (2), any officer or employee of the organisation, or a branch of the organisation, who is involved in that contravention contravenes this subsection.

Threats

             (4)  For the purpose of subsection (2), a threat may be:

                     (a)  express or implied; or

                     (b)  conditional or unconditional.

Involvement in a contravention

             (5)  For the purpose of subsection (3), a person is involved in a contravention if, and only if, the person:

                     (a)  has aided, abetted, counselled or procured the contravention; or

                     (b)  has induced, whether by threats or promises, the contravention; or

                     (c)  has been in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the contravention; or

                     (d)  has conspired with others to effect the contravention.

Offence for contravening subsection (1), (2) or (3)

             (6)  A person commits an offence if the person contravenes subsection (1), (2) or (3).

Maximum penalty:    25 penalty units or imprisonment for 6 months, or both.

             (7)  In a prosecution for an offence that relates to a contravention of subsection (2), it is not necessary to prove that the person threatened actually feared that the threat would be carried out.

337D  Right to compensation

                   If:

                     (a)  a person (the person in contravention) contravenes subsection 337C(1), (2) or (3); and

                     (b)  a person (the victim) suffers damage because of the contravention;

the person in contravention is liable to compensate the victim for the damage.

 

Part 4B—Functions and powers of FWA

  

337F  Powers of inspection

             (1)  For the purpose of, or in relation to, the exercise of another power, or the performance of a function, conferred by this Act, a member of FWA may at any time during working hours:

                     (a)  enter prescribed premises; and

                     (b)  inspect or view any work, material, machinery, appliance, article, document or other thing on the prescribed premises; and

                     (c)  interview, on the prescribed premises, any employee who is usually engaged in work on the prescribed premises.

             (2)  In this section:

prescribed premises means premises on which or in relation to which:

                     (a)  an industry is carried on; or

                     (b)  work is being, or has been done, or commenced; or

                     (c)  a modern award or an order of FWA has been made; or

                     (d)  an enterprise agreement is in operation.

337G  Parties to proceedings

                   FWA may direct that parties be joined or struck out as parties to proceedings under this Act.

337H  Kinds of orders

                   The orders that FWA may make under this Act include the following:

                     (a)  orders by consent of the parties to the proceedings;

                     (b)  provisional or interim orders;

                     (c)  orders including, or varying orders to include, a provision to the effect that engaging in conduct in breach of a specified term of the order is to be taken to constitute the commission of a separate breach of the term on each day on which the conduct continues.

337J  Relief not limited to claim

                   In making an order in proceedings under this Act, FWA is not restricted to the specific relief claimed by the parties concerned, but may include in the order anything which FWA considers necessary or expedient for the purposes of dealing with the proceedings.

337K  Publishing orders

             (1)  If FWA makes an order under this Act, FWA must promptly:

                     (a)  reduce the order to writing that:

                              (i)  is signed by at least one member of FWA; and

                             (ii)  shows the day on which it is signed; and

                     (b)  give to the General Manager:

                              (i)  a copy of the order; and

                             (ii)  a list specifying each party who appeared at the hearing of the proceeding concerned.

             (2)  FWA must ensure that an order under this Act is expressed in plain English and is easy to understand in structure and content.

             (3)  The General Manager must promptly:

                     (a)  provide a copy of:

                              (i)  the order; and

                             (ii)  any written reasons received by the General Manager for the order;

                            to each party shown on the list given to the General Manager under subparagraph (1)(b)(ii); and

                     (b)  ensure that copies of each of the following are available for inspection at each registry:

                              (i)  the order;

                             (ii)  any written reasons received by the General Manager for the order.

             (4)  The General Manager must ensure that the following are published as soon as practicable:

                     (a)  an order under this Act;

                     (b)  any written reasons for the order that are received by the General Manager.

             (5)  If an FWA Member ceases to be an FWA Member:

                     (a)  after an order under this Act has been made by FWA constituted by the FWA Member; but

                     (b)  before the order has been reduced to writing or before it has been signed by the FWA Member;

the General Manager must reduce the order to writing, sign it and seal it with the seal of FWA, and the order has effect as if it had been signed by the FWA Member.

 

Part 5—Jurisdiction of the Federal Court of Australia

  

338  Conferring jurisdiction on the Federal Court

                   Jurisdiction is conferred on the Federal Court in relation to any matter (whether civil or criminal) arising under this Act.

339  Exclusive jurisdiction

             (1)  Subject to this Act, the jurisdiction of the Federal Court in relation to an act or omission for which an organisation or member of an organisation is liable to be sued, or to be proceeded against for a pecuniary penalty, is exclusive of the jurisdiction of any other court created by the Parliament or any court of a State or Territory.

             (2)  The jurisdiction of the Federal Court in relation to matters arising under section 163, 164, 164A, 164B or 167 or Part 3 of Chapter 7 is exclusive of the jurisdiction, or any similar jurisdiction, of a State industrial authority.

339A  Exercising jurisdiction in the Fair Work Division of the Federal Court

                   The jurisdiction conferred on the Federal Court under this Act is to be exercised in the Fair Work Division of the Federal Court if:

                     (a)  an application is made to the Federal Court under this Act; or

                     (b)  a writ of mandamus or prohibition or an injunction is sought in the Federal Court against a person holding office under this Act; or

                     (c)  a declaration is sought under section 21 of the Federal Court of Australia Act 1976 in relation to a matter arising under this Act; or

                     (d)  an injunction is sought under section 23 of the Federal Court of Australia Act 1976 in relation to a matter arising under this Act; or

                     (e)  a prosecution is instituted in the Federal Court under this Act; or

                      (f)  the High Court remits a matter arising under this Act to the Federal Court.

340  Exercise of Court’s original jurisdiction

             (1)  The jurisdiction of the Federal Court under this Act is to be exercised by a Full Court in relation to:

                     (a)  matters in relation to which applications are made to the Court under section 28 (cancellation of registration); and

                    (aa)  matters in relation to which applications are made to the Court under subsection 109(1) (giving effect to withdrawal of constituent part from amalgamated organisation); and

                    (ab)  matters in relation to which applications are made to the Court under subsection 118(2) (giving effect to requirement to take necessary steps in relation to withdrawal from amalgamation); and

                    (ac)  matters in relation to which applications are made to the Court under subsection 125(1) (resolving difficulties in relation to application of Part 3 of Chapter 3 to a matter); and

                    (ad)  matters in relation to which applications are made to the Court under subsection 128(1) (validation of certain acts done for purposes of proposed or completed withdrawal from amalgamation); and

                    (ae)  matters in relation to which applications are made to the Court under subsection 129(1) (invalidity in proposed or completed withdrawal from amalgamation); and

                     (b)  matters in which a writ of mandamus or prohibition or an injunction is sought against:

                              (i)  the President or a Deputy President; or

                             (ii)  officers of the Commonwealth at least one of whom is the President or a Deputy President.

             (2)  Subsection (1) does not require the jurisdiction of the Court to be exercised by a Full Court in relation to a prosecution for an offence merely because the offence relates to a matter to which that subsection applies.

             (3)  Subsection (1) does not, in relation to matters referred to in that subsection, require the jurisdiction of the Court to be exercised by a Full Court to:

                     (a)  join or remove a party; or

                     (b)  make an order (including an order for costs) by consent disposing of a matter; or

                     (c)  make an order that a matter be dismissed for want of prosecution; or

                     (d)  make an order that a matter be dismissed for:

                              (i)  failure to comply with a direction of the Court; or

                             (ii)  failure of the applicant to attend a hearing relating to the matter; or

                     (e)  vary or set aside an order under paragraph (c) or (d); or

                      (f)  give directions about the conduct of a matter, including directions about:

                              (i)  the use of written submissions; and

                             (ii)  limiting the time for oral argument.

             (4)  The Rules of Court may make provision enabling the powers mentioned in subsection (3) to be exercised, subject to conditions prescribed by the Rules, without an oral hearing.

             (5)  This section applies in addition to, and does not affect the operation of, section 339A.

341  Reference of proceedings to Full Court

             (1)  At any stage of a proceeding in a matter arising under this Act, a single Judge exercising the jurisdiction of the Federal Court:

                     (a)  may refer a question of law for the opinion of a Full Court; and

                     (b)  may, of the Judge’s own motion or on the application of a party, refer the matter to a Full Court to be heard and determined.

             (2)  If a Judge refers a matter to a Full Court under subsection (1), the Full Court may have regard to any evidence given, or arguments adduced, in the proceeding before the Judge.

             (3)  This section applies in addition to, and does not affect the operation of, section 339A.

342  Appeal to the Court from certain judgments

                   In spite of section 24 of the Federal Court Act 1976, an appeal does not lie to a Full Court from a judgment by a single Judge in an inquiry referred to in section 69, 108 or 201 except in accordance with leave given by the Court.

 

Part 6—Other

  

343  Delegation by Minister

                   The Minister may, in writing, delegate to:

                     (a)  the Secretary of the Department; or

                     (b)  an SES employee or acting SES employee;

all or any of the Minister’s powers under this Act.

343A  Delegation by General Manager to staff

             (1)  The General Manager may, in writing, delegate to a member of the staff of FWA all or any of the General Manager’s functions or powers under this Act.

             (2)  Despite subsection (1), the General Manager’s functions or powers under the following provisions cannot be delegated:

                     (a)  subsection 13(2);

                     (b)  any provision of Chapter 2, 3 or 5 (other than subsection 159(1) or (2) or section 161);

                     (c)  subsection 183(4);

                     (d)  section 197;

                     (e)  any provision of Part 3 or 4 of Chapter 7 (other than section 202);

                      (f)  any provision of Division 1, 2, 3 or 4 of Part 3 of Chapter 8;

                     (g)  subsection 278(2);

                     (h)  section 310;

                      (i)  section 334;

                      (j)  subsection 336(2);

                     (k)  subsection 337K(4).

             (3)  Despite subsection (1), the General Manager’s functions or powers under the following provisions can only be delegated to a member of the staff of FWA who is an SES employee or an acting SES employee, or who is in a class of employees prescribed by the regulations:

                     (a)  subsection 159(1) or (2);

                     (b)  section 161;

                     (c)  section 180;

                     (d)  any provision of Part 2 of Chapter 7 (other than subsection 183(4) or section 197);

                     (e)  any provision of Part 2 of Chapter 8;

                      (f)  any provision of Division 5 or 6 of Part 3 of Chapter 8;

                     (g)  section 272;

                     (h)  any provision of Chapter 11 (other than section 334 or subsection 336(2) or 337K(4)).

Note:          The expressions SES employee and acting SES employee are defined in section 17AA of the Acts Interpretation Act 1901.

             (4)  In exercising powers or functions under a delegation, the delegate must comply with any directions of the General Manager.

344  Conduct by officers, directors, employees or agents

             (1)  Where it is necessary to establish, for the purposes of this Act, the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:

                     (a)  that the conduct was engaged in by an officer, director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; and

                     (b)  that the officer, director, employee or agent had the state of mind.

             (2)  Any conduct engaged in on behalf of a body corporate by:

                     (a)  an officer, director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; or

                     (b)  any other person at the direction or with the consent or agreement (whether express or implied) of an officer, director, employee or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the officer, director, employee or agent;

is taken, for the purposes of this Act, to have been engaged in also by the body corporate.

             (3)  A reference in this section to the state of mind of a person includes a reference to the knowledge, intent, opinion, belief or purpose of the person and the person’s reasons for the intent, opinion, belief or purpose.

Note:          Section 6 defines this Act to include the regulations.

345  Right to participate in ballots

             (1)  Subject to reasonable provisions in the rules of an organisation in relation to enrolment, every financial member of the organisation has a right to vote at any ballot taken for the purpose of submitting a matter to a vote of the members of the organisation, or of a branch, section or other division of the organisation in which the member is included.

             (2)  This section does not apply to protected action ballots ordered under Division 8 of Part 3‑3 of the Fair Work Act.

346  Requests by members for information concerning elections and certain ballots

             (1)  A financial member of an organisation may, by notice in writing, request the returning officer:

                     (a)  in relation to an election for an office or other position in the organisation or a branch of the organisation; or

                     (b)  in relation to a ballot taken for the purpose of submitting a matter to a vote of the members of an organisation or a branch of the organisation;

to provide to the member specified information for the purpose of determining whether there has been an irregularity in relation to the election or ballot, and the returning officer must not unreasonably withhold the information.

             (2)  This section does not apply to protected action ballots ordered under Division 8 of Part 3‑3 of the Fair Work Act.

347  Providing copy of rules or list of offices etc. on request by member

             (1)  If a member of an organisation requests the organisation, or a branch of the organisation, to provide to the member:

                     (a)  a copy of the rules of the organisation or branch; or

                     (b)  a copy of any amendments of the rules made since a specified time; or

                     (c)  a copy of the list of the offices, or of the persons holding the offices, of an organisation or branch lodged with FWA on behalf of the organisation under subsection 233(1);

the organisation or branch (as the case requires) must provide a copy to the member and, subject to the regulations, must provide the copy free of charge.

Note:          This subsection is a civil penalty provision (see section 305).

             (2)  A request under this section:

                     (a)  must be made to the secretary, or a person performing (in whole or part) the duties of secretary, of the organisation or branch concerned; and

                     (b)  must be in writing; and

                     (c)  must specify the period (of not less than 14 days) within which the relevant copy must be provided.

             (3)  An organisation or branch whose rules or list of offices, or of the persons holding the offices, are available on the Internet must inform a member seeking a copy of that fact. However, informing the member of that fact does not affect the organisation’s or branch’s other obligations under this section and the regulations.

             (4)  The regulations may:

                     (a)  prescribe the manner in which a request under this section must be made; and

                     (b)  prescribe the time within which the organisation or branch must respond to the request; and

                     (c)  prescribe the form or forms in which a copy of the rules, amendments or list of offices, or of the persons holding the offices, may be provided; and

                     (d)  prescribe fees that may be charged by an organisation or branch for providing a copy of the rules or amendments to a member if that member has been provided with a copy of the same rules or amendments free of charge within the past 3 years; and

                     (e)  prescribe fees that may be charged by an organisation or branch for providing a copy of a list of offices to a member if that member has already been provided with a copy of the same list free of charge.

348  Certificate as to membership of organisation

                   A certificate of the General Manager stating that a specified person was at a specified time a member or officer of a specified organisation or a specified branch of a specified organisation is, in all courts and proceedings, evidence that the facts are as stated.

349  List of officers to be evidence

                   A list of the officers of an organisation or a branch of an organisation lodged with FWA on behalf of the organisation, or a copy of any such list certified by the General Manager, is evidence that the persons named in the list were, on the day when the list was lodged, officers of the organisation or branch.

350  Unauthorised collection of money

             (1)  A person commits an offence if:

                     (a)  the person makes a representation that the person is authorised to collect money on behalf of an organisation; and

                     (b)  the person knows the representation is false.

Maximum penalty:    20 penalty units.

             (2)  A person commits an offence if:

                     (a)  the person collects money on behalf of an organisation; and

                     (b)  the person knows that he or she does not have authority to do so.

Maximum penalty:    20 penalty units.

351  No imprisonment in default

                   In spite of the provisions of any other law, a court may not direct that a person is to serve a sentence of imprisonment in default of the payment of a fine or other pecuniary penalty imposed under this Act.

351A  Minister’s entitlement to intervene

             (1)  The Minister may intervene on behalf of the Commonwealth in proceedings before a court (including a court of a State or Territory) in relation to a matter arising under this Act if the Minister believes it is in the public interest to do so.

             (2)  If the Minister intervenes, the Minister is taken to be a party to the proceedings for the purposes of instituting an appeal from a judgment given in the proceedings.

             (3)  A court may make an order as to costs against the Commonwealth if:

                     (a)  the Minister intervenes under subsection (1); or

                     (b)  the Minister institutes an appeal from a judgment as referred to in subsection (2).

352  Jurisdiction of courts limited as to area

             (1)  For the purposes of this Act, a court of a State or Territory whose jurisdiction is limited, as to subject matter or parties, to any part of a State or Territory is taken to have jurisdiction throughout the State or Territory.

             (2)  On the hearing of a proceeding in a court for the recovery of a penalty, fine, fee, levy or due, the court may, if in the interests of justice it considers appropriate, adjourn the hearing to a court of competent jurisdiction to be held at some other place in the same State or Territory.

353  Public sector employer to act through employing authority

                   In spite of anything to the contrary in this Act, the Fair Work Act or any other law, the employer of an employee engaged in public sector employment must, for the purposes of this Act and the procedural rules of FWA made under section 609 of the Fair Work Act, act only by an employing authority of the employee acting on behalf of the employer and, in particular:

                     (a)  anything done by an employing authority of an employee has effect, for those purposes, as if it had been done by the employer of the employee; and

                     (b)  anything served on, or otherwise given or notified to, an employing authority of an employee has effect, for those purposes, as if it had been served on, or given or notified to, the employer of the employee.

353A  Representation in proceedings in the Fair Work Division of the Federal Court and Federal Magistrates Court

             (1)  This section applies in relation to a proceeding in the Fair Work Division of the Federal Court, or of the Federal Magistrates Court, other than:

                     (a)  a proceeding in relation to an appeal under section 565 of the Fair Work Act; or

                     (b)  a proceeding in relation to an offence against a law of the Commonwealth.

             (2)  Subject to subsection (4), a party to the proceeding that is an organisation may be represented by:

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

                     (b)  a member, officer or employee of a peak council to which the organisation is affiliated.

             (3)  Subject to subsection (4), a party to the proceeding that is not an organisation may be represented by:

                     (a)  a member, officer or employee of an organisation of which the party is a member; or

                     (b)  a member, officer or employee of a peak council to which an organisation of which the party is a member is affiliated.

             (4)  If the proceeding is a proceeding in relation to a question of law referred to the Federal Court under section 608 of the Fair Work Act, a party to the proceeding may only be represented as permitted by subsection (2) or (3) if the Court grants leave.

             (5)  In this section:

party includes an intervener.

354  Proceedings by and against unincorporated clubs

             (1)  For the purposes of this Act, the treasurer of a club is taken to be the employer of a person employed for the purposes or on behalf of the club, and any proceeding that may be taken under this Act by or against the club may be taken by or against the treasurer on behalf of the club.

             (2)  The treasurer is authorised to retain out of the funds of the club sufficient money to meet payments made by the treasurer on behalf of the club under this section.

             (3)  In this section:

club means an unincorporated club.

treasurer includes a person having possession or control of any funds of a club.

355  Inspection of documents etc.

                   All documents and other things produced in evidence before FWA may be inspected by FWA or by such other parties as FWA allows.

356  Trade secrets etc. tendered as evidence

             (1)  In a proceeding before the Federal Court or FWA:

                     (a)  the person entitled to a trade secret may object that information tendered as evidence relates to the trade secret; or

                     (b)  a witness or party may object that information tendered as evidence relates to the profits or financial position of the witness or party.

             (2)  Where an objection is made under subsection (1) to information tendered as evidence, the information may only be given as evidence under a direction of the Federal Court or FWA.

             (3)  If information is given as evidence under subsection (2), it must not be published in any newspaper, or otherwise, unless the Federal Court or FWA, by order, permits the publication.

             (4)  Where the Federal Court or FWA directs that information relating to a trade secret or to the profits or financial position of a witness or party is to be given in evidence, the evidence must be taken in private if the person entitled to the trade secret, or the witness or party, requests.

             (5)  The Federal Court or FWA may direct that evidence given in a proceeding before it, or the contents of a document produced for inspection, must not be published.

             (6)  A person commits an offence if the person gives as evidence, or publishes, any information in contravention of this section or a direction given under this section.

Maximum penalty:    20 penalty units.

357  Application of penalty

                   A court that imposes a pecuniary penalty under this Act (other than a penalty for an offence) may order that the penalty, or a part of the penalty, be paid to:

                     (a)  the Commonwealth; or

                     (b)  an organisation; or

                     (c)  another person.

358  Enforcement of penalties etc.

             (1)  Where a court has:

                     (a)  imposed a pecuniary penalty under this Act (other than a penalty for an offence); or

                     (b)  ordered the payment of costs or expenses;

a certificate signed by the General Manager, specifying the amount payable and by whom and to whom respectively it is payable, may be filed in the Federal Court or in any other court of competent jurisdiction.

             (2)  A certificate filed in a court under subsection (1) is enforceable in all respects as a final judgment of the court in which it is filed.

             (3)  Where there are 2 or more creditors under a certificate, process may be issued separately by each creditor for the enforcement of the certificate as if there were separate judgments.

359  Regulations

General power

             (1)  The Governor‑General may make regulations prescribing all matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.

Specific matters on which regulations may be made

             (2)  The matters in relation to which the Governor‑General may make regulations include, but are not limited to:

                     (a)  the manner in which, and the time within which, applications, submissions and objections under this Act may be made and dealt with; and

                     (b)  the fees to be charged in relation to proceedings under this Act; and

                     (c)  the manner in which, and the time within which, the AEC must give post‑election and post‑ballot reports; and

                     (d)  requiring, or authorising a particular person to require, the providing by all or any organisations of information relating to matters relevant to the conduct of elections for offices in organisations and branches of organisations; and

                     (e)  requiring the exhibiting, on the premises of an employer bound by an order of FWA under this Act, of any of the terms of the order; and

                      (f)  penalties not exceeding a fine of 10 penalty units for offences against the regulations; and

                     (g)  pecuniary penalties not exceeding:

                              (i)  in the case of a body corporate—25 penalty units; or

                             (ii)  in any other case—5 penalty units;

                            for contravening civil penalty provisions in the regulations.

Note:          Regulations made under the Fair Work Act may also be relevant to the operation of this Act. For example, regulations about FWA’s practice and procedure may be made for the purposes of section 610 of the Fair Work Act.

Regulations relating to payroll deduction facilities

             (3)  The Governor‑General may also make regulations imposing requirements relating to payroll deduction facilities on:

                     (a)  the Commonwealth in its capacity as an employer; and

                     (b)  employers who are constitutional corporations.

Note:          For the meaning of constitutional corporation, see section 6.

             (4)  Regulations referred to in subsection (3) may include, but are not limited to:

                     (a)  requirements that employers give employees information about money received by the employer in relation to the provision by the employer of payroll deduction facilities for an organisation; and

                     (b)  requirements that employers who provide payroll deduction facilities inform employees who use or have used the facilities in relation to their membership of an organisation that ceasing to use the facilities does not constitute resignation from the organisation.

 

Part 7—Complementary registration systems

Division 1—Application of this Part

360  Complementary registration systems

                   If:

                     (a)  an organisation is divided into branches; and

                     (b)  the operations of one of the branches is confined to a prescribed State or the operations of 2 or more of the branches are each confined to a prescribed State; and

                     (c)  the organisation proposes in accordance with this Part to amalgamate with an associated body as defined by this Part for the purpose of seeking the non‑corporate registration of the branch, or of any of the branches, referred to in paragraph (b) under an Act of the State concerned that is, or under Acts of the States concerned each of which is, a prescribed State Act for the purposes of this Part;

then, in addition to the other provisions of this Act, this Part applies to the organisation but so applies only in relation to the branch or branches referred to in paragraph (c).

 

Division 2—Preliminary

361  Definitions

                   In this Part, unless the contrary intention appears:

amalgamation means the carrying out of arrangements in relation to an organisation and an associated body under which it is intended that:

                     (a)  a branch of the organisation is to obtain non‑corporate registration under a prescribed State Act; and

                     (b)  the associated body is to be de‑registered under a prescribed State Act; and

                     (c)  members of the associated body who are not already members of the organisation are to become members of the organisation; and

                     (d)  the property of the associated body is to become the property of the organisation forming part of the branch fund of the branch; and

                     (e)  the liabilities of the associated body are to be satisfied from the branch fund of the branch.

associated body, in relation to an organisation, means an association registered under a prescribed State Act that is or purports to be composed of substantially the same members, and has or purports to have substantially the same officers, as a branch of the organisation in the same State, including such an association that has purported to function as a branch of the organisation.

State means a prescribed State.

 

Division 3—Branch rules

362  Branch funds

             (1)  The rules of a branch of an organisation must provide for a fund of the branch that is to be managed and controlled under rules of the branch, and must make provision in relation to the fund in accordance with subsection (2).

             (2)  The branch fund is to consist of:

                     (a)  real or personal property of which the branch of the organisation, by the rules or by any established practice not inconsistent with the rules, has, or in the absence of a limited term lease, bailment or arrangement, would have, the right of custody, control or management; and

                     (b)  the amounts of entrance fees, subscriptions, fines, fees or levies received by a branch, less so much of the amounts as is payable by the branch to the organisation; and

                     (c)  interest, rents, dividends or other income derived from the investment or use of the fund; and

                     (d)  a superannuation or long service leave or other fund operated or controlled by the branch for the benefit of its officers or employees; and

                     (e)  a sick pay fund, accident pay fund, funeral fund, tool benefit fund or similar fund operated or controlled by the branch for the benefit of its members; and

                      (f)  property acquired wholly or mainly by expenditure of the money of the fund or derived from other assets of the fund; and

                     (g)  the proceeds of a disposal of parts of the fund.

             (3)  FWA may grant to a branch of an organisation exemption from this section or any provision of this section on the ground that the branch’s rules make adequate and reasonable provision for its funds, having regard to the organisation’s functioning under this Act and the Fair Work Act and its participation in any State workplace relations system.

363  Obligations of FWA in relation to application under section 158

             (1)  Subsections (2) and (3) apply in relation to the consideration by FWA of an application under section 158 for consent to a change in the name, or an alteration of the eligibility rules, of an organisation.

             (2)  FWA must, in addition to any other relevant matters, have regard to:

                     (a)  whether there is, in relation to the organisation, an associated body registered under a prescribed State Act; and

                     (b)  whether the reason the change is sought is to enable the organisation, in addition to representing members or staff members under this Act or the Fair Work Act, to represent under the State Act a class of persons who would, if the change were consented to, become eligible for membership.

             (3)  In the case of an alteration to a rule that may effect a change in the class of persons eligible for membership of a branch of the organisation that is registered under the law of a State, FWA must, before consenting, give notice of the proposed change to the industrial registrar or similar officer appointed under the law of the State in which the branch operates and, if so requested, consult with the industrial registrar or officer.

364  Branch autonomy

                   The rules of an organisation must provide for the autonomy of a branch in matters affecting members of the branch only and matters concerning the participation of the branch in a State workplace relations system.

365  Organisation may participate in State systems

             (1)  Where it is not contrary to the rules of an organisation to do so, the organisation may participate in workplace relations systems.

             (2)  For the purpose of participating, a branch of an organisation may become registered under a law of a State so long as that registration does not involve the branch in becoming incorporated, or otherwise becoming a legal entity, under the law of the State.

             (3)  Where an organisation participates, its rules may provide that the secretary of the branch of the organisation in the State is the person to sue or to be sued under the law of the State in relation to any acts or omissions arising from its participation.

 

Division 4—Amalgamation of organisation and associated body

366  Organisation and associated body may amalgamate

                   An organisation and an associated body may amalgamate in the manner set out in this Division.

367  Procedure for amalgamation

             (1)  The committee of management of an organisation and the committee of management of the associated body must each pass a resolution proposing amalgamation and specifying particulars of the proposed amalgamation.

             (2)  Application must be made to FWA by the organisation for approval of the amalgamation.

             (3)  The application must be accompanied by a copy of any proposed alterations of the rules of the organisation.

             (4)  If the rules of the organisation do not comply, subject to subsection 362(3), with Division 3 in respect of each branch for which the organisation proposes to seek non‑corporate registration under a prescribed State Act, the proposed alterations must include alterations necessary for the rules so to comply.

             (5)  FWA must:

                     (a)  determine what notice is to be given to other persons of the application; and

                     (b)  determine whether, on whom and how notice should be served and whether it should be advertised in any newspaper; and

                     (c)  fix a period during which objections may be lodged.

             (6)  Objection may be made to the amalgamation, so far as it involves an alteration of the eligibility rules of the organisation, by:

                     (a)  another organisation; or

                     (b)  a member of the associated body; or

                     (c)  a registered association in the State in which the associated body functions;

because there is another organisation to which the members of the associated body, whose eligibility for membership would depend on the alteration, could more conveniently belong.

             (7)  Objection may be made to the amalgamation by a member of the organisation or of the associated body on the ground that:

                     (a)  the provisions of this section have not been complied with; or

                     (b)  the amalgamation would do substantial injustice to the members of the organisation or associated body.

             (8)  If any objections are duly lodged or if FWA otherwise deems it advisable to do so, FWA must:

                     (a)  fix a day and place of hearing; and

                     (b)  determine to whom and in what manner notice of the day and place of the hearing shall be given.

             (9)  If FWA:

                     (a)  finds that no duly made objection is justified; and

                     (b)  is satisfied that the provisions of this section have been complied with; and

                     (c)  is satisfied that the amalgamation would not do substantial injustice to the members of the organisation or of the associated body; and

                     (d)  is satisfied that any proposed alterations of the rules of the organisation:

                              (i)  comply with and are not contrary to this Act and applicable modern awards; and

                             (ii)  are not otherwise contrary to law; and

                            (iii)  have been decided on under the rules of the organisation;

FWA must, subject to subsection (10), approve the amalgamation and fix the day on which the amalgamation is to take effect, but otherwise FWA must refuse to approve the amalgamation.

           (10)  FWA must not approve an amalgamation unless FWA is satisfied as to arrangements made relating to property and liabilities of the associated body.

           (11)  On the day on which the amalgamation takes effect, any alteration of the rules of the organisation takes effect.

           (12)  On the day on which the amalgamation takes effect, all members of the associated body who are not already members of the organisation but are or become, on that day, eligible for membership of the organisation:

                     (a)  become members of the organisation; and

                     (b)  are to be taken to have been members for the period ending on that day during which they were members of the associated body.

 

Division 5—Exercise of FWA’s powers

368  Exercise of FWA’s powers under this Part

                   The powers of FWA under this Part are exercisable only by the President or a Deputy President.