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Workplace Relations Act 1996

  • - C2006C00104
  • In force - Superseded Version
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Act No. 86 of 1988 as amended, taking into account amendments up to Act No. 153 of 2005 and SLI 2006 No. 68
An Act relating to workplace relations, and for other purposes
Administered by: Attorney-General's; DEWR
Registered 31 Mar 2006
Start Date 31 Mar 2006
End Date 11 Dec 2006
Table of contents.

 

Workplace Relations Act 1996

Act No. 86 of 1988 as amended

This compilation was prepared on 31 March 2006
taking into account amendments up to Act No. 153 of 2005
and SLI 2006 Nos. 50, 52 and 68

Volume 2 includes:       Table of Contents
                                   
Schedules 1 – 10

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

  

  

 


Contents

Schedule 1—Registration and Accountability of Organisations                  1

Chapter 1—Objects of Schedule and general provisions                                 1

1............ Simplified outline of Chapter............................................................. 1

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

5A......... Schedule binds Crown........................................................................ 2

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

6A......... References to provisions in this Schedule........................................ 11

7............ Meaning of industrial action............................................................. 11

9............ Meaning of office.............................................................................. 12

10.......... Forging and uttering.......................................................................... 13

11.......... Actions and opinions of AEC.......................................................... 14

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

13.......... Functions of the Industrial Registry................................................. 15

14.......... President may establish Organisations Panel................................... 15

15.......... Disapplication of Part 2.5 of Criminal Code................................... 16

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

Chapter 2—Registration and cancellation of registration                             17

Part 1—Simplified outline of Chapter                                                                17

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

Part 2—Registration                                                                                                   18

Division 1—Types of associations that may apply for registration     18

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

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

18B....... Federally registrable employee associations..................................... 19

18C....... Federally registrable enterprise associations.................................... 21

18D....... Constitutional validity...................................................................... 23

Division 2—Registration criteria                                                                         25

19.......... Criteria for registration of associations other than enterprise associations             25

20.......... Criteria for registration of enterprise associations............................ 27

Division 3—Prohibited conduct in relation to formation or registration of employee associations        29

21.......... Prohibited conduct—employers....................................................... 29

22.......... Prohibited conduct—organisations................................................... 30

23.......... Powers of Federal Court in relation to prohibited conduct.............. 31

24.......... Certain actions considered to be done by organisation or employer 31

Division 4—Registration process                                                                        33

25.......... Applicant for registration may change its name or alter its rules..... 33

26.......... Registration....................................................................................... 33

27.......... Incorporation.................................................................................... 34

Part 3—Cancellation of registration                                                                   35

28.......... Application for cancellation of registration...................................... 35

29.......... Orders where cancellation of registration deferred........................... 37

30.......... Cancellation of registration on technical grounds etc........................ 39

31.......... Cancellation to be recorded............................................................... 41

32.......... Consequences of cancellation of registration.................................... 41

Part 4—Commission’s powers under this Chapter                                    42

33.......... Powers exercisable by Presidential Member.................................... 42

Chapter 3—Amalgamation and withdrawal from amalgamation                43

Part 1—Simplified outline of Chapter                                                                43

34.......... Simplified outline.............................................................................. 43

Part 2—Amalgamation of organisations                                                            44

Division 1—General                                                                                                    44

35.......... Definitions........................................................................................ 44

36.......... Procedure to be followed for proposed amalgamation etc................ 47

37.......... Exercise of Commission’s powers under this Part........................... 48

Division 2—Preliminary matters                                                                          49

38.......... Federations....................................................................................... 49

39.......... Use of resources to support proposed amalgamation...................... 50

Division 3—Commencement of amalgamation procedure                      51

40.......... Scheme for amalgamation.................................................................. 51

41.......... Alternative scheme for amalgamation............................................... 51

42.......... Approval by committee of management.......................................... 52

43.......... Community of interest declaration................................................... 52

44.......... Application for approval for submission of amalgamation to ballot 55

45.......... Holding office after amalgamation.................................................... 55

46.......... Application for exemption from ballot............................................. 57

47.......... Application for ballot not conducted under section 65.................... 57

48.......... Lodging “yes” case........................................................................... 57

Division 4—Role of AEC                                                                                          58

49.......... Ballots to be conducted by AEC...................................................... 58

50.......... Notification of AEC......................................................................... 58

51.......... Providing information etc. to electoral officials................................ 58

52.......... Declaration by secretary etc. of organisation................................... 59

Division 5—Procedure for approval of amalgamation                               61

53.......... Fixing hearing in relation to amalgamation etc.................................. 61

54.......... Submissions at amalgamation hearings............................................. 61

55.......... Approval for submission to ballot of amalgamation not involving extension of eligibility rules etc.      62

56.......... Objections in relation to amalgamation involving extension of eligibility rules etc. 64

57.......... Approval for submission to ballot of amalgamation involving extension of eligibility rules etc.            64

58.......... Fixing commencing and closing days of ballot.................................. 67

59.......... Roll of voters for ballot.................................................................... 68

60.......... “Yes” case and “no” case for amalgamation..................................... 68

61.......... Alteration and amendment of scheme............................................... 70

62.......... Outline of scheme for amalgamation................................................. 72

63.......... Exemption from ballot...................................................................... 72

64.......... Approval for ballot not conducted under section 65........................ 73

65.......... Secret postal ballot of members........................................................ 74

66.......... Determination of approval of amalgamation by members................ 75

67.......... Further ballot if amalgamation not approved................................... 76

68.......... Post-ballot report by AEC............................................................... 76

69.......... Inquiries into irregularities................................................................ 77

70.......... Approval of amalgamation............................................................... 77

71.......... Expenses of ballot............................................................................. 78

72.......... Offences in relation to ballot............................................................ 78

Division 6—Amalgamation taking effect                                                          81

73.......... Action to be taken after ballot.......................................................... 81

74.......... Assets and liabilities of de-registered organisation become assets and liabilities of amalgamated organisation       82

75.......... Resignation from membership.......................................................... 82

76.......... Effect of amalgamation on awards, orders and collective agreements 83

77.......... Effect of amalgamation on agreement under section 151.................. 83

78.......... Instruments....................................................................................... 83

79.......... Pending proceedings......................................................................... 84

80.......... Division applies despite laws and agreements prohibiting transfer etc.  84

81.......... Amalgamated organisation to take steps necessary to carry out amalgamation      85

82.......... Certificates in relation to land and interests in land.......................... 85

83.......... Certificates in relation to charges...................................................... 86

84.......... Certificates in relation to shares etc.................................................. 86

85.......... Certificates in relation to other assets.............................................. 87

86.......... Other matters.................................................................................... 87

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

Division 7—Validation                                                                                                88

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

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

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

91.......... Federal Court may make orders in relation to consequences of invalidity              90

Part 3—Withdrawal from amalgamations                                                         92

Division 1—General                                                                                                    92

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

93.......... Definitions etc.................................................................................. 92

Division 2—Ballots for withdrawal from amalgamated organisations 96

94.......... Applications to the Commission for ballots.................................... 96

95.......... Outline of proposed withdrawal...................................................... 97

96.......... Filing the “yes” case......................................................................... 98

97.......... Filing the “no” case........................................................................... 99

98.......... Provisions relating to outlines and statements of “yes” and “no” cases 99

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

100........ Orders for ballots.............................................................................. 99

101........ Financial members only eligible to vote.......................................... 100

102........ Conduct of ballots.......................................................................... 100

103........ Providing information etc. to electoral officials.............................. 101

104........ Declaration by secretary etc. of organisation................................. 102

105........ Offences in relation to ballots......................................................... 103

106........ Certificate showing particulars of the ballot................................... 105

107........ Post-ballot report by AEC............................................................. 105

108........ Inquiries into irregularities.............................................................. 106

108A..... Powers of the Commission to be exercised by President or Full Bench  107

Division 3—Giving effect to ballots                                                                  108

109........ Determining the day of withdrawal................................................ 108

110........ Registration of constituent part...................................................... 109

111........ Choice of organisation following withdrawal of separately identifiable constituent part       109

112........ Members of amalgamated organisation may join newly registered organisation     111

113........ Orders of the Commission, awards etc. made before withdrawal.. 112

113A..... Collective agreements made after withdrawal................................. 112

114........ Effect of withdrawal on agreement under section 151.................... 113

115........ Instruments..................................................................................... 113

116........ Pending proceedings....................................................................... 113

117........ Division applies despite laws and agreements prohibiting transfer etc.  114

118........ Amalgamated organisation, constituent part and newly registered organisation to take necessary steps               115

119........ Certificates in relation to land and interests in land........................ 115

120........ Certificates in relation to charges.................................................... 116

121........ Certificates in relation to shares etc................................................ 116

122........ Certificates in relation to other assets............................................ 116

123........ Holding office after withdrawal...................................................... 117

124........ Other matters.................................................................................. 118

125........ Federal Court may resolve difficulties............................................ 118

Division 4—Validation                                                                                              119

126........ Validation of certain acts done in good faith................................... 119

127........ Validation of certain acts after 4 years........................................... 120

128........ Orders affecting application of section 126 or 127........................ 120

129........ Federal Court may make orders in relation to consequences of invalidity              121

Division 5—Miscellaneous                                                                                    123

130........ Certain actions etc. not to constitute breach of rules of amalgamated organisation 123

131........ Amalgamated organisation not to penalise members etc................ 123

Chapter 4—Representation orders                                                                          126

Part 1—Simplified outline                                                                                       126

132........ Simplified outline............................................................................ 126

Part 2—Representation orders                                                                           127

133........ Orders about representation rights of organisations of employees 127

134........ Preconditions for making of orders................................................. 127

135........ Factors to be taken into account by Commission.......................... 128

136........ Order may be subject to limits....................................................... 128

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

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

138A..... Representation rights of former State-registered associations........ 129

Chapter 5—Rules of organisations                                                                           130

Part 1—Simplified outline of Chapter                                                              130

139........ Simplified outline............................................................................ 130

Part 2—Rules of organisations                                                                            131

Division 1—General                                                                                                  131

140........ Organisations to have rules............................................................. 131

141........ Rules of organisations..................................................................... 131

142........ General requirements for rules........................................................ 133

Division 2—Rules relating to elections for office                                      134

143........ Rules to provide for elections for offices....................................... 134

144........ Rules to provide for elections for office by secret postal ballot.... 135

145........ Rules to provide for terms of office............................................... 137

146........ Rules may provide for filling of casual vacancies........................... 137

147........ Model rules for conduct of elections.............................................. 138

Division 3—Rules relating to conduct of officers and employees    139

148........ Model rules about conduct of officers and employees................... 139

Division 4—Other rules                                                                                          140

Subdivision A—Loans, grants and donations                                                     140

149........ Rules to provide conditions for loans, grants and donations by organisations        140

Subdivision B—Agreements between organisations and State unions         141

150........ Definitions...................................................................................... 141

151........ Membership agreements................................................................. 142

152........ Assets and liabilities agreements.................................................... 144

153........ Party to section 152 agreement may apply to Federal Court for orders 145

154........ Termination of section 152 agreement............................................ 145

Subdivision C—Miscellaneous                                                                             146

155........ Exercise of Commission’s powers under this Division.................. 146

Division 5—Alteration of rules and evidence of rules                            147

156........ Industrial Registrar may determine alterations of rules.................. 147

157........ Commission may determine alteration of rules where there has been a breach of an undertaking           147

158........ Change of name or alteration of eligibility rules of organisation..... 148

159........ Alteration of other rules of organisation......................................... 149

160........ Certain alterations of rules to be recorded...................................... 150

161........ Evidence of rules............................................................................. 150

162........ Powers of Commission................................................................... 150

Part 3—Validity and performance of rules etc                                             151

163........ Rules contravening section 142...................................................... 151

164........ Directions for performance of rules................................................ 153

164A..... Directions to rectify breach of rule of organisation........................ 154

164B..... Orders under sections 164 and 164A............................................. 154

Chapter 6—Membership of organisations                                                           156

Part 1—Simplified outline of Chapter                                                              156

165........ Simplified outline............................................................................ 156

Part 2—Entitlement to membership                                                                 157

166........ Entitlement to become and to remain a member............................. 157

167........ Federal Court may declare on person’s entitlement to membership 158

168........ Application for membership of organisation by person treated as having been a member     160

169........ Request by member for statement of membership......................... 161

170........ Rectification of register of members............................................... 161

Part 3—Termination of membership                                                                162

171........ Federal Court may order that persons cease to be members of organisations         162

172........ Non-financial members to be removed from the register................ 162

173........ No entrance fee if person re-joins within 6 months....................... 163

174........ Resignation from membership........................................................ 163

Part 4—False information, disputes and arrears of dues                       165

175........ False representation as to membership of organisation.................. 165

176........ False representation about resignation from organisation.............. 165

177........ Disputes between organisations and members............................... 165

178........ Recovery of arrears......................................................................... 165

179........ Liability for arrears......................................................................... 166

Part 5—Conscientious objection to membership                                      167

180........ Conscientious objection to membership of organisations.............. 167

Chapter 7—Democratic control                                                                                  169

Part 1—Simplified outline of Chapter                                                              169

181........ Simplified outline............................................................................ 169

Part 2—Conduct of elections for office and other positions                170

182........ Conduct by AEC............................................................................ 170

183........ Application for organisation or branch to conduct its elections for office              170

184........ Objections to application to conduct elections for office............... 171

185........ Threats etc. in relation to section 184 objections........................... 171

186........ Registrar may permit organisation or branch to conduct its elections for office     172

187........ Organisation may ask AEC to conduct elections for positions other than offices  173

188........ Declaration envelopes etc. to be used for postal ballots................ 173

189........ Registrar to arrange for conduct of elections.................................. 173

190........ Organisation or branch must not assist one candidate over another 174

191........ Organisation to provide returning officer with copy of register..... 174

192........ Declaration by secretary etc. of organisation................................. 175

193........ Provisions applicable to elections conducted by AEC................... 175

194........ Hindering or obstructing electoral official or other person............. 177

195........ Improper interference with election process.................................. 177

196........ Death of candidate.......................................................................... 179

197........ Post-election report by AEC.......................................................... 179

198........ Organisation to respond to adverse report on rules....................... 181

199........ Ballot papers etc. to be preserved.................................................. 183

Part 3—Inquiries into elections for office                                                      185

200........ Application for inquiry.................................................................. 185

201........ Instituting of inquiry...................................................................... 185

202........ Federal Court may authorise Industrial Registrar to take certain action  186

203........ Designated Registry officials must have identity cards.................. 187

204........ Interim orders................................................................................. 188

205........ Procedure at hearing........................................................................ 189

206........ Action by Federal Court................................................................. 190

207........ Industrial Registrar to make arrangements for conduct of elections etc.  191

208........ Enforcement of orders.................................................................... 191

209........ Validity of certain acts etc. where election declared void............... 191

Part 4—Disqualification from office                                                                   193

Division 1—Simplified outline of Part                                                              193

210........ Simplified outline............................................................................ 193

Division 2—Persons who have been convicted of a prescribed offence               194

211........ Simplified outline of Division......................................................... 194

212........ Meaning of prescribed offence........................................................ 194

213........ Meaning of convicted of a prescribed offence................................. 194

213A..... Meaning of exclusion period and reduced exclusion period........... 195

214........ Certificate of registrar etc. is evidence of facts............................... 195

215........ Certain persons disqualified from holding office in organisations.. 196

216........ Application for leave to hold office in organisations by prospective candidate for office      197

217........ Application for leave to hold office in organisations by office holder 199

218........ Federal Court to have regard to certain matters.............................. 199

219........ Action by Federal Court................................................................. 200

220........ Part not to affect spent convictions scheme................................... 200

Chapter 8—Records and accounts                                                                            201

Part 1—Simplified outline of Chapter                                                              201

229........ Simplified outline............................................................................ 201

Part 2—Records to be kept and lodged by organisations                     202

230........ Records to be kept and lodged by organisations............................ 202

231........ Certain records to be held for 7 years............................................. 202

232........ Offence to interfere with register or copy...................................... 203

233........ Obligation to lodge information in Industrial Registry................... 203

234........ Storage of records........................................................................... 204

235........ Registrar may authorise access to certain records.......................... 204

236........ Registrar may direct organisation to deliver copy of records......... 205

237........ Organisations to notify particulars of loans, grants and donations 206

Part 3—Accounts and audit                                                                                   208

Division 1—Preliminary                                                                                          208

238........ Simplified outline............................................................................ 208

239........ Part only applies to financial years starting after registration........ 208

240........ Financial years—change in financial year....................................... 209

241........ Exemptions from certain Australian Accounting Standards........... 209

Division 2—Reporting units                                                                                 210

242........ What is a reporting unit?................................................................ 210

243........ Designated officers......................................................................... 210

244........ Members, staff and journals etc. of reporting units....................... 211

245........ Determination of reporting units.................................................... 212

246........ Determination of reporting units—application by organisation.... 212

247........ Determination of reporting units—Industrial Registrar initiative.. 213

248........ Determination of reporting units—years certificate applies to...... 213

249........ Determination of reporting units—revocation of certificates......... 214

250........ Determination of reporting units—rule alterations........................ 215

251........ Determination of reporting units—later certificate revokes earlier certificate         215

Division 3—Accounting obligations                                                                  216

Subdivision A—General obligations                                                                    216

252........ Reporting unit to keep proper financial records............................. 216

253........ Reporting unit to prepare general purpose financial report........... 217

254........ Reporting unit to prepare operating report.................................... 218

Subdivision B—Reporting guidelines                                                                 218

255........ Reporting guidelines....................................................................... 218

Division 4—Auditors                                                                                                220

256........ Auditors of reporting units............................................................. 220

257........ Powers and duties of auditors........................................................ 221

258........ Obstruction etc. of auditors............................................................ 223

259........ Reporting unit to forward notices etc. to auditor........................... 224

260........ Auditor entitled to attend meetings at which report presented...... 224

261........ Auditors and other persons to enjoy qualified privilege in certain circumstances   226

262........ Fees and expenses of auditors........................................................ 226

263........ Removal of auditor......................................................................... 226

264........ Resignation of auditor..................................................................... 227

Division 5—Reporting requirements                                                               228

265........ Copies of full report or concise report to be provided to members 228

266........ Full report to be presented to meetings.......................................... 229

267........ Comments by committee members not to be false or misleading... 230

268........ Reports etc. to be lodged in Industrial Registry............................. 230

Division 6—Reduced reporting requirements for particular reporting units     232

269........ Reporting units with substantial common membership with State registered bodies             232

270........ Organisations with income of less than certain amount................. 233

271........ Exemption from this Part of certain reporting units....................... 234

Division 7—Members’ access to financial records                                  236

272........ Information to be provided to members or Registrar..................... 236

273........ Order for inspection of financial records........................................ 237

274........ Frivolous or vexatious applications................................................ 237

275........ Ancillary orders.............................................................................. 238

276........ Disclosure of information acquired in inspection........................... 238

277........ Reporting unit or committee of management may allow member to inspect books                238

278........ Commission to be advised of breaches of Part or rules etc. found during inspection              239

279........ Constitution of Commission.......................................................... 239

Part 4—Access to organisations’ books                                                        240

280........ Right of access to organisation’s books.......................................... 240

Chapter 9—Conduct of officers and employees                                                242

Part 1—Simplified outline of Chapter                                                              242

281........ Simplified outline............................................................................ 242

Part 2—General duties in relation to the financial management of organisations            243

Division 1—Preliminary                                                                                          243

282........ Simplified outline............................................................................ 243

283........ Part only applies in relation to financial management.................... 243

284........ Meaning of involved....................................................................... 243

Division 2—General duties in relation to the financial management of organisations   244

285........ Care and diligence—civil obligation only........................................ 244

286........ Good faith—civil obligations.......................................................... 244

287........ Use of position—civil obligations.................................................. 245

288........ Use of information—civil obligations............................................. 245

289........ Effect of ratification by members................................................... 245

290........ Compliance with statutory duties.................................................. 246

291........ Interaction of sections 285 to 289 with other laws etc.................. 246

292........ Reliance on information or advice provided by others................... 247

293........ Responsibility for actions of other person..................................... 247

Part 3—General duties in relation to orders and directions                249

Division 1—Preliminary                                                                                          249

294........ Simplified outline............................................................................ 249

295........ Meaning of involved....................................................................... 249

296........ Application to officers and employees of branches....................... 249

Division 2—General duties in relation to orders and directions       250

297........ Order or direction applying to organisation—civil obligation........ 250

298........ Prohibition order or direction applying to organisation—civil obligation               250

299........ Order or direction applying to officer—civil obligation................. 251

300........ Prohibition order or direction applying to officer—civil obligation 251

301........ Order or direction applying to employee—civil obligation............ 252

302........ Prohibition order or direction applying to employee—civil obligation 252

303........ Order or direction applying to member of organisation—civil obligation               253

303A..... Application of this Division........................................................... 253

Chapter 10—Civil penalties                                                                                          254

Part 1—Simplified outline of Chapter                                                              254

304........ Simplified outline............................................................................ 254

Part 2—Civil consequences of contravening civil penalty provisions 255

305........ Civil penalty provisions................................................................. 255

306........ Pecuniary penalty orders that the Federal Court may make.......... 256

307........ Compensation orders...................................................................... 257

308........ Other orders.................................................................................... 258

309........ Effect of section 307....................................................................... 258

310........ Who may apply for an order.......................................................... 258

311........ Civil proceedings after criminal proceedings.................................. 259

312........ Criminal proceedings during civil proceedings................................ 259

313........ Criminal proceedings after civil proceedings.................................. 259

314........ Evidence given in proceedings for penalty not admissible in criminal proceedings 259

315........ Relief from liability for contravention of civil penalty provision.. 260

316........ Power to grant relief....................................................................... 261

Chapter 11—Miscellaneous                                                                                         262

Part 1—Simplified outline of Chapter                                                              262

317........ Simplified outline............................................................................ 262

Part 2—Validating provisions for organisations                                         263

318........ Definition........................................................................................ 263

319........ Validation of certain acts done in good faith................................... 264

320........ Validation of certain acts after 4 years........................................... 266

321........ Order affecting application of section 319 or 320.......................... 267

322........ Federal Court may make orders in relation to consequences of invalidity              268

323........ Federal Court may order reconstitution of branch etc.................... 269

Part 3—Financial assistance and costs                                                            271

Division 1—Financial assistance                                                                        271

324........ Authorisation of financial assistance.............................................. 271

325........ Federal Court may certify that application was reasonable........... 273

326........ Applications under sections 163, 164, 164A and 167................... 273

327........ Fees for 2 counsel not normally to be paid.................................... 274

328........ Powers of Federal Court not affected............................................. 274

Division 2—Costs                                                                                                       275

329........ Costs only where proceeding instituted vexatiously etc................ 275

Part 4—Inquiries and investigations                                                                276

330........ Registrar or staff may make inquiries............................................. 276

331........ Registrar may conduct investigations............................................. 276

332........ Investigations arising from auditor’s report................................... 277

333........ Investigations arising from request from members......................... 277

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

335........ Conduct of investigations............................................................... 278

336........ Action following an investigation................................................... 279

337........ Offences in relation to investigation by Registrar.......................... 280

Part 4A—Protection for whistleblowers                                                         282

337A..... Disclosures qualifying for protection under this Part.................... 282

337B..... Disclosure that qualifies for protection not actionable etc............. 283

337C..... Victimisation prohibited................................................................. 283

337D..... Right to compensation.................................................................... 285

Part 4B—Functions and powers of the Commission                               286

337E...... Additional functions and powers................................................... 286

337F...... Powers of inspection...................................................................... 286

337G..... Parties to proceedings..................................................................... 286

337H..... Kinds of orders............................................................................... 286

337J...... Relief not limited to claim............................................................... 287

337K..... Publishing orders............................................................................ 287

Part 5—Jurisdiction of the Federal Court of Australia                           289

338........ Jurisdiction of Federal Court.......................................................... 289

339........ Exclusive jurisdiction...................................................................... 289

340........ Exercise of Court’s original jurisdiction.......................................... 290

341........ Reference of proceedings to Full Court.......................................... 291

342........ Appeal to the Court from certain judgments.................................. 291

Part 6—Other                                                                                                               292

343........ Delegation by Minister................................................................... 292

344........ Conduct by officers, directors, employees or agents..................... 292

345........ Right to participate in ballots......................................................... 293

346........ Requests by members for information concerning elections and certain ballots      293

347........ Providing copy of rules or list of offices etc. on request by member 293

348........ Certificate as to membership of organisation................................. 294

349........ List of officers to be evidence......................................................... 295

350........ Unauthorised collection of money.................................................. 295

351........ No imprisonment in default............................................................ 295

352........ Jurisdiction of courts limited as to area.......................................... 295

353........ Public sector employer to act through employing authority.......... 296

354........ Proceedings by and against unincorporated clubs.......................... 296

355........ Inspection of documents etc........................................................... 297

356........ Trade secrets etc. tendered as evidence.......................................... 297

357........ Application of penalty................................................................... 298

358........ Enforcement of penalties etc.......................................................... 298

359........ Regulations..................................................................................... 298

Part 7—Complementary registration systems                                            301

Division 1—Application of this Part                                                                  301

360........ Complementary registration systems............................................. 301

Division 2—Preliminary                                                                                          302

361........ Definitions...................................................................................... 302

Division 3—Branch rules                                                                                       303

362........ Branch funds................................................................................... 303

363........ Obligations of Commission in relation to application under section 158                304

364........ Branch autonomy........................................................................... 304

365........ Organisation may participate in State systems.............................. 304

Division 4—Amalgamation of organisation and associated body      306

366........ Organisation and associated body may amalgamate....................... 306

367........ Procedure for amalgamation............................................................ 306

Division 5—Exercise of Commission’s powers                                         309

368........ Exercise of Commission’s powers under this Part......................... 309

Schedule 2—Extra provisions relating to definitions                                      310

1............ ........................................................................................................ 310

2............ References to employee with its ordinary meaning........................ 312

3............ References to employer with its ordinary meaning........................ 313

4............ References to employment with its ordinary meaning................... 314

5............ Regulations may amend clauses 2, 3 and 4..................................... 315

Schedule 3—Oath or affirmation of office                                                            316

Schedule 4—Convention concerning termination of employment at the initiative of the employer             317

Schedule 5—Convention concerning equal opportunities and equal treatment for men and women workers: workers with family responsibilities                                                      326

Schedule 6—Transitional arrangements for parties bound by federal awards        332

Part 1—Preliminary                                                                                                           332

Division 1—Objects of Schedule                                                                        332

1............ Objects of Schedule........................................................................ 332

Division 2—Interpretation                                                                                     333

2............ Definitions...................................................................................... 333

3............ Meaning of industrial action........................................................... 336

Division 3—Continuing operation of awards                                                339

4............ Continuing operation of awards in force before reform commencement 339

5............ Particular rules about transitional awards....................................... 340

6............ Cessation of transitional awards..................................................... 340

Part 2—Performance of Commission’s functions                                             341

7............ General functions of Commission.................................................. 341

8............ Performance of Commission’s functions under this Schedule........ 341

9............ Anti-discrimination considerations................................................. 342

10.......... Commission to have regard to operation of Superannuation Guarantee legislation 343

11.......... Commission to encourage agreement on procedures for preventing and settling disputes      343

12.......... Commission to have regard to compliance with disputes procedures 343

13.......... No automatic flow-on of terms of certain agreements.................... 343

14.......... Commission to act quickly............................................................. 344

15.......... Commission not required to have regard to certain matters........... 344

Part 3—Powers and procedures of Commission for dealing with industrial disputes           345

Division 1—Settlement of industrial disputes                                             345

Subdivision A—Scope of industrial disputes                                                     345

16.......... Scope of industrial disputes........................................................... 345

Subdivision B—Allowable transitional award matters                                     345

17.......... Allowable transitional award matters............................................. 345

18.......... Matters that are not allowable transitional award matters............. 347

19.......... Terms involving discrimination and preference not to be included 349

20.......... Terms about rights of entry not to be included.............................. 349

21.......... Enterprise flexibility provisions not to be included....................... 349

Subdivision C—Other terms that may be included in transitional awards  350

22.......... Preserved transitional award terms................................................. 350

23.......... Facilitative provisions.................................................................... 351

24.......... Incidental and machinery terms...................................................... 351

25.......... Anti-discrimination clauses............................................................ 352

26.......... Boards of reference......................................................................... 352

Subdivision D—Terms in transitional awards that cease to have effect       353

27.......... Terms in transitional awards that cease to have effect after the reform commencement         353

Division 2—Variation and revocation of transitional awards               354

28.......... Variation of transitional awards—general....................................... 354

29.......... Variation of transitional awards—dealing with industrial dispute. 354

30.......... Variation of transitional awards—discrimination, etc.................... 355

31.......... Revocation of transitional awards.................................................. 356

32.......... Applications for variation, suspension or revocation of transitional awards          357

Division 3—Procedure for dealing with industrial disputes                 358

33.......... Notification of industrial disputes.................................................. 358

34.......... Disputes to be dealt with by conciliation where possible.............. 358

35.......... Findings as to industrial disputes................................................... 359

36.......... Action to be taken where dispute referred for conciliation............ 359

37.......... Completion of conciliation proceeding........................................... 360

38.......... Arbitration...................................................................................... 360

39.......... Exercise of arbitration powers by member who has exercised conciliation powers                361

40.......... Principles for varying transitional awards...................................... 362

41.......... Reference of disputes to Full Bench............................................... 362

42.......... President may deal with certain proceedings.................................. 365

43.......... Review on application by Minister................................................ 366

44.......... Procedure of Commission............................................................... 367

45.......... Provisions in Part 3 that do not apply to performance of Commission’s functions under this Schedule               368

Division 4—Powers of Commission for dealing with industrial disputes              369

46.......... Particular powers of Commission.................................................. 369

47.......... Recommendations by consent........................................................ 371

Division 5—Other powers of the Commission                                           372

48.......... Power to make further orders in settlement of industrial dispute etc. 372

49.......... Relief not limited to claim............................................................... 372

50.......... Power to provide special rates of wages........................................ 372

51.......... Orders to stop or prevent industrial action.................................... 373

Part 4—Ballots ordered by Commission                                                                375

52.......... Commission may order secret ballot.............................................. 375

53.......... Scope of directions for secret ballots.............................................. 375

54.......... Conduct of ballot............................................................................ 376

55.......... Commission to have regard to result of ballot................................ 377

56.......... Offences in relation to ballots......................................................... 377

Part 5—Circumstances in which transitional awards cease to be binding   378

57.......... Ceasing to be bound by transitional award—making a State employment agreement             378

58.......... Ceasing to be bound by transitional award—inability to make a State employment agreement             378

59.......... Ceasing to be bound by transitional award—inability to resolve industrial dispute under this Schedule               379

60.......... Interaction between transitional awards, State laws and State awards 379

Part 6—Technical matters relating to transitional awards                          380

61.......... Making and publication of orders................................................... 380

62.......... Requirement for transitional award-related orders......................... 380

63.......... Registrar’s powers if member ceases to be member after making an order              381

64.......... Form of orders................................................................................ 382

65.......... Date of orders................................................................................. 382

66.......... Date of effect of orders................................................................... 382

67.......... Term of orders................................................................................ 382

68.......... Continuation of transitional awards............................................... 382

69.......... Persons bound by orders varying transitional awards.................... 383

70.......... Transitional awards and transitional award-related orders of Commission are final               384

71.......... Reprints of transitional awards as varied....................................... 384

72.......... Expressions used in transitional awards......................................... 384

Part 6A—Transmission of transitional awards                                                   385

Division 1—Introductory                                                                                        385

72A....... Object............................................................................................. 385

72B....... Simplified outline............................................................................ 385

72C....... Definitions...................................................................................... 385

Division 2—Application of Part                                                                           387

72D....... Application of Part......................................................................... 387

72E........ Transferring transitional employees............................................... 387

72F........ Transferring transitional employees in relation to particular transitional award     388

Division 3—Transmission of transitional award                                         389

72G....... Transmission of transitional award................................................ 389

72H....... Interaction rules.............................................................................. 390

Division 4—Notice requirements and enforcement                                 392

72J........ Informing transferring transitional employees about transmitted award 392

72K....... Lodging copy of notice with Employment Advocate.................... 392

72L........ Employment Advocate must issue receipt for lodgment............... 394

72M...... Civil penalties................................................................................. 394

Division 5—Miscellaneous                                                                                    395

72N....... Regulations..................................................................................... 395

Part 7—Matters relating to Victoria                                                                        396

Division 1—Matters referred by Victoria                                                      396

Subdivision A—Introduction                                                                                 396

73.......... Definitions...................................................................................... 396

74.......... Division only has effect if supported by reference........................ 396

Subdivision B—Industrial disputes                                                                     397

75.......... Industrial disputes.......................................................................... 397

Subdivision C—Allowable transitional award matters                                     398

76.......... Allowable transitional award matters............................................. 398

Subdivision D—Preserved transitional award terms                                       398

77.......... Preserved transitional award terms................................................. 398

78.......... When preserved transitional award entitlements have effect......... 399

79.......... Meaning of more generous............................................................. 400

80.......... Modifications that may be prescribed—personal/carer’s leave..... 400

81.......... Modifications that may be prescribed—parental leave.................. 401

Subdivision E—Common rules                                                                             401

82.......... Common rules continue to have effect during the transitional period 401

83.......... Certain declarations continue to have effect during the transitional period             402

84.......... Variation of common rules before the reform commencement....... 403

85.......... Variation of common rules during the transitional period.............. 404

86.......... Intervention by Minister of Victoria.............................................. 405

87.......... Concurrent operation of laws of Victoria....................................... 405

88.......... Pre-commencement applications for review................................... 405

89.......... Common rule taken to be award..................................................... 406

90.......... Meaning of industrial action........................................................... 406

91.......... Right of entry................................................................................. 406

92.......... Application of provisions of Act relating to workplace inspectors 407

93.......... Application of provisions of Act relating to compliance............... 407

Subdivision F—Transmission of business                                                         407

94.......... Transmission of business............................................................... 407

Subdivision G—Modification of certain provisions of this Act                       407

95.......... Modification of certain provisions of this Act............................... 407

Subdivision H—Ceasing to be bound by transitional Victorian reference award                408

95A....... Ceasing to be bound by transitional Victorian reference award—inability to resolve industrial dispute under this Schedule.......................................................................................... 408

Division 2—Other matters                                                                                    409

Subdivision A—Allowable transitional award matters                                     409

96.......... Allowable transitional award matters............................................. 409

Subdivision B—Preserved transitional award terms                                       409

97.......... Preserved transitional award terms................................................. 409

98.......... When preserved transitional award entitlements have effect......... 410

99.......... Meaning of more generous............................................................. 411

100........ Modifications that may be prescribed—personal/carer’s leave..... 411

101........ Modifications that may be prescribed—parental leave.................. 412

Subdivision BA—Transmission of business                                                      413

101A..... Transmission of business............................................................... 413

Subdivision C—Modification of certain provisions of this Act                       413

102........ Modification of certain provisions of this Act............................... 413

Subdivision D—Ceasing to be bound by transitional award                            413

102A..... Ceasing to be bound by transitional award—inability to resolve industrial dispute under this Schedule               413

Part 8—Miscellaneous                                                                                                     415

102B..... Continuation of hearing by Commission........................................ 415

103........ Revocation and suspension of transitional awards......................... 415

104........ Appeals to Full Bench.................................................................... 415

105........ Application of provisions of Act relating to right of entry............ 416

106........ Application of provisions of Act relating to workplace inspectors 416

107........ Application of provisions of Act relating to compliance............... 416

107A..... Application of provisions of Act relating to freedom of association 417

107B..... Contracts entered into by agents of transitional employees.......... 417

107C..... Records relating to transitional employees..................................... 418

107D..... Interpretation of transitional awards.............................................. 418

108........ Application of other Parts of Act.................................................. 418

Schedule 7—Transitional arrangements for existing pre-reform Federal agreements etc.             419

Part 1—Preliminary                                                                                                           419

1............ Definitions...................................................................................... 419

Part 2—Pre-reform certified agreements                                                              421

Division 1—General                                                                                                  421

2............ Continuing operation of pre-reform certified agreements—under old provisions   421

3............ Rules replacing subsections 170LX(2) and (3)............................... 422

4............ Rules replacing section 170NC—coercion of persons to terminate certified agreements etc. 422

5............ Interaction of agreement with other instruments............................ 423

6............ Continuing operation of pre-reform certified agreements—under new provisions 423

7............ Effect of pre-reform certified agreement if AWA is terminated..... 423

8............ Anti-AWA terms taken to be prohibited content.......................... 424

9............ Calling up contents of pre-reform certified agreement in workplace agreement      424

10.......... Application of Division to certain Division 3 pre-reform certified agreements      424

Division 2—Special rules for Division 3 pre-reform certified agreements with excluded employers   425

11.......... Application of Division.................................................................. 425

12.......... Cessation of Division 3 pre-reform certified agreements............... 425

13.......... Continuing operation of pre-reform certified agreements—under old provisions   425

14.......... Rules replacing subsections 170LX(2) and (3)............................... 426

15.......... Interaction of agreement with awards............................................. 427

16.......... Continuing operation of pre-reform certified agreements—under new provisions 427

Part 3—Pre-reform AWAs                                                                                             428

17.......... Continuing operation of pre-reform AWAs—under old provisions 428

18.......... Rules replacing section 170VJ—period of operation of AWA...... 428

19.......... Interaction of pre-reform AWAs with other instruments.............. 429

20.......... Continuing operation of pre-reform AWAs—under new provisions 429

21.......... Calling up contents of pre-reform AWA in workplace agreement. 429

Part 4—Awards under subsection 170MX(3) of the pre-reform Act     430

22.......... Application of Part......................................................................... 430

23.......... Continuing operation of section 170MX awards—under old provisions               430

24.......... Continuing operation of section 170MX awards—under new provisions              430

25.......... Interaction of section 170MX awards with other instruments...... 431

26.......... Effect of section 170MX award if AWA is terminated................. 431

Part 5—Exceptional matters orders                                                                         432

27.......... Exceptional matters orders............................................................. 432

Part 6—Old IR agreements                                                                                          433

28.......... Operation of old IR agreement....................................................... 433

29.......... Old IR agreement cannot be varied after the reform commencement 433

Part 7—Relationships between pre-reform agreements etc. and Australian Fair Pay and Conditions Standard                                                                                                                434

30.......... Relationships between pre-reform agreements etc. and Australian Fair Pay and Conditions Standard  434

Part 7A—Relationship between pre-reform agreements etc. and public holiday entitlement         435

30A....... Relationship between pre-reform agreements etc. and public holiday entitlement 435

Part 8—Applications for certification etc. before reform commencement  436

31.......... Certifications under pre-reform Act after the reform commencement 436

32.......... Approvals of pre-reform AWAs under pre-reform Act after the reform commencement      436

32A....... Approvals of section 170MX awards under pre-reform Act after the reform commencement              436

Part 9—Matters relating to Victoria                                                                        437

33.......... Definitions...................................................................................... 437

34.......... Part only has effect if supported by reference etc......................... 438

35.......... Continuing operation of pre-reform certified agreements—under old provisions   438

36.......... Victorian reference Division 3 pre-reform certified agreements..... 438

37.......... Continuing operation of pre-reform AWAs—under old provisions 438

38.......... Continuing operation of section 170MX awards—under old provisions               439

38A....... Approvals of section 170MX awards under pre-reform Act after the reform commencement              439

39.......... Relationship between Victorian employment agreements and designated old IR agreements 439

Schedule 8—Transitional treatment of State employment agreements and State awards               440

Part 1—Preliminary                                                                                                           440

1............ Definitions...................................................................................... 440

2............ Objects............................................................................................ 441

Part 2—Preserved State agreements                                                                      442

Division 1—Preserved individual State agreements                               442

Subdivision A—What is a preserved individual State agreement?                442

3............ Preserved individual State agreements............................................ 442

Subdivision B—Who is bound by or subject to a preserved individual State agreement? 442

4............ Who is bound by or subject to a preserved individual State agreement? 442

Subdivision C—Terms of a preserved individual State agreement                443

5............ Terms of a preserved individual State agreement........................... 443

6............ Nominal expiry date of a preserved individual State agreement..... 444

7............ Powers of State industrial authorities............................................. 444

8............ Dispute resolution processes......................................................... 444

9............ Prohibited content.......................................................................... 445

Division 2—Preserved collective State agreements                               446

Subdivision A—What is a preserved collective State agreement?                446

10.......... Preserved collective State agreements............................................. 446

Subdivision B—Who is bound by or subject to a preserved collective State agreement?  446

11.......... Who is bound by a preserved collective State agreement?............. 446

12.......... Whose employment is subject to a preserved collective State agreement?              447

Subdivision C—Terms of a preserved collective State agreement                 447

13.......... Terms of a preserved collective State agreement............................ 447

14.......... Nominal expiry date of a preserved collective State agreement...... 448

15.......... Powers of State industrial authorities............................................. 449

15A....... Dispute resolution processes......................................................... 449

15B....... Prohibited content.......................................................................... 449

Division 2A—Effect and operation of a preserved State agreement 450

15C....... Effect of a preserved State agreement............................................. 450

15D....... Effect of awards while a preserved State agreement in operation.. 450

15E........ Relationship between a preserved State agreement and the Australian Fair Pay and Conditions Standard            450

15F........ Relationship between a preserved State agreement and public holiday entitlement                450

15G....... When preserved State agreements cease to operate........................ 451

Division 3—Varying a preserved State agreement                                  452

16.......... Varying a preserved State agreement.............................................. 452

17.......... Variation to remove ambiguity or uncertainty................................ 452

18.......... Variation to remove discrimination................................................. 452

19.......... Variation to remove prohibited content.......................................... 453

Division 4—Enforcing preserved State agreements                               456

20.......... Enforcing a preserved State agreement........................................... 456

Division 5—Terminating a preserved State agreement                        457

21.......... Terminating a preserved State agreement....................................... 457

22.......... Coercion of persons to terminate a preserved State agreement...... 457

Division 6—Industrial action                                                                                459

23.......... Industrial action must not be taken until after nominal expiry date—preserved collective State agreements         459

24.......... Industrial action must not be taken until after nominal expiry date—preserved individual State agreements        460

25.......... Industrial action taken before nominal expiry date not protected action 462

Division 6A—Protected conditions                                                                   463

25A....... Protected conditions where employment was subject to preserved State agreement              463

Division 7—Miscellaneous                                                                                    466

26.......... Calling up contents of a preserved State agreement in a workplace agreement       466

27.......... Application of section 451 in relation to a preserved State agreement 466

28.......... Application of Part 15 in relation to a preserved State agreement. 466

29.......... Application of Part 16 in relation to a preserved State agreement. 466

Division 8—Regulations                                                                                         467

30.......... Regulations may apply, modify or adapt Act................................ 467

Part 3—Notional agreements preserving State awards                                468

Division 1—What is a notional agreement preserving State awards? 468

Subdivision A—What is a notional agreement preserving State awards?   468

31.......... Notional agreements preserving State awards................................ 468

Subdivision B—Who is bound by or subject to a notional agreement preserving State awards?     468

32.......... Who is bound by a notional agreement preserving State awards?.. 468

33.......... Whose employment is subject to a notional agreement preserving State awards?  469

Subdivision C—Terms of a notional agreement preserving State awards   470

34.......... Terms of a notional agreement preserving State awards................. 470

35.......... Powers of State industrial authorities............................................. 471

36.......... Dispute resolution processes......................................................... 471

37.......... Prohibited content.......................................................................... 471

Division 2—Effect and operation of a notional agreement preserving State awards      472

38.......... Effect of a notional agreement preserving State awards................. 472

38A....... Operation of a notional agreement preserving State awards........... 472

Division 3—Varying a notional agreement preserving State awards 473

39.......... Varying a notional agreement preserving State awards................... 473

40.......... Variation to remove ambiguity or uncertainty................................ 473

41.......... Variation to remove discrimination................................................. 473

42.......... Variation to remove prohibited content.......................................... 474

Division 4—Enforcing the notional agreement                                           477

43.......... Enforcing the notional agreement.................................................... 477

44.......... Matters provided for by the Australian Fair Pay and Conditions Standard           477

Division 5—Preserved notional terms and preserved notional entitlements    478

45.......... Preserved notional terms of notional agreement............................. 478

46.......... When preserved notional entitlements have effect......................... 479

47.......... Meaning of more generous............................................................. 480

48.......... Modifications that may be prescribed—personal/carer’s leave..... 480

49.......... Modifications that may be prescribed—parental leave.................. 481

50.......... Preserved notional terms taken to be included in awards............... 481

51.......... Application of hours of work provision of Australian Fair Pay and Conditions Standard to notional agreements preserving State awards.................................................................. 482

Division 6—Protected conditions                                                                      483

52.......... Protected conditions in notional agreements preserving State awards 483

Division 6A—Industrial action during the life of an enterprise award 485

52AA.... Action taken during life of enterprise award not protected............ 485

Division 7—Miscellaneous                                                                                    486

52A....... Calling up a notional agreement preserving State awards in a workplace agreement               486

53.......... Application of Part 15 in relation to a notional agreement preserving State awards               486

54.......... Application of Part 16 in relation to a notional agreement preserving State awards               486

Division 8—Regulations                                                                                         487

55.......... Regulations may apply, modify or adapt Act................................ 487

Schedule 9—Transmission of business rules (transitional instruments) 488

Part 1—Introductory                                                                                                         488

1............ Object............................................................................................. 488

2............ Simplified outline............................................................................ 488

3............ Definitions...................................................................................... 489

Part 2—Application of Schedule                                                                                 491

4............ Application of Schedule................................................................. 491

5............ Transferring employees.................................................................. 491

6............ Transferring employees in relation to particular instrument.......... 492

6A......... Application of Schedule to certain Division 3 pre-reform certified agreements      493

Part 3—Transmission of pre-reform AWAs                                                        494

7............ Transmission of pre-reform AWA................................................. 494

8............ Interaction rules.............................................................................. 495

9............ Termination of transmitted pre-reform AWA................................ 495

Part 4—Transmission of pre-reform certified agreements                         496

Division 1—General                                                                                                  496

10.......... Transmission of pre-reform certified agreement............................. 496

11.......... Interaction rules.............................................................................. 499

12.......... Termination of transmitted pre-reform certified agreement........... 501

Division 2—Commission’s powers                                                                   502

13.......... Application and terminology.......................................................... 502

14.......... Commission may make order......................................................... 502

15.......... When application for order can be made........................................ 503

16.......... Who may apply for order............................................................... 503

17.......... Applicant to give notice of application.......................................... 503

18.......... Submissions in relation to application............................................ 503

Part 5—Transmission of State transitional instruments                               505

Division 1—General                                                                                                  505

19.......... Transmission of State transitional instrument................................ 505

20.......... Interaction rules.............................................................................. 507

21.......... Termination of preserved State agreement..................................... 508

Division 2—Commission’s powers                                                                   510

22.......... Application and terminology.......................................................... 510

23.......... Commission may make order......................................................... 510

24.......... When application for order can be made........................................ 511

25.......... Who may apply for order............................................................... 511

26.......... Applicant to give notice of application.......................................... 511

27.......... Submissions in relation to application............................................ 511

Part 6—Notice requirements and enforcement                                                 513

28.......... Informing transferring employees about transmission of transitional instrument   513

29.......... Lodging copy of notice with Employment Advocate.................... 515

30.......... Employment Advocate must issue receipt for lodgment............... 516

31.......... Civil penalties................................................................................. 516

Part 7—Matters relating to Victoria                                                                        519

32.......... Definitions...................................................................................... 519

33.......... Additional effect of Schedule.......................................................... 519

33A....... Victorian reference Division 3 pre-reform certified agreements..... 520

Part 8—Transitional instruments and transmitted post-reform instruments             521

34.......... Relationship between transitional instruments and transmitted collective agreement             521

35.......... Relationship between transitional instruments and transmitted award 521

Part 9—Miscellaneous                                                                                                     523

36.......... Regulations..................................................................................... 523

Schedule 10—Transitionally registered associations                                     524

1............ Definitions...................................................................................... 524

2............ Application for transitional registration......................................... 525

3............ Application of this Act to transitionally registered associations... 526

4............ Representation rights of transitionally registered associations of employees         527

5............ Cancellation of transitional registration.......................................... 527

6............ End of transitional registration....................................................... 529

7............ Modification of Registration and Accountability of Organisations Schedule          530

 


Schedule 1Registration and Accountability of Organisations

Note:       See section 8

Chapter 1Objects of Schedule and general provisions

  

1  Simplified outline of Chapter

This Chapter sets out Parliament’s intention in enacting this Schedule and contains other provisions that are relevant to the Schedule as a whole.

It includes definitions of terms that are used throughout the Schedule. However, not all definitions are in this Chapter. Definitions of terms that are used only in a particular area of the Schedule, or only in one section of the Schedule, are generally defined in that area or section.

5  Parliament’s intention in enacting this Schedule

             (1)  It is Parliament’s intention in enacting this Schedule 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 Schedule in order to gain the rights and privileges accorded to associations under this Schedule and the Workplace Relations Act.

             (3)  The standards set out in this Schedule:

                     (a)  ensure that employer and employee organisations registered under this Schedule 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 Schedule 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 Workplace Relations Act contains many provisions that affect the operation of this Schedule. For example, provisions of the Workplace Relations Act deal with some powers and functions of the Commission and of Registrars. Decisions made under this Schedule may be subject to procedures and rules (for example, about appeals) that are set out in the Workplace Relations Act.

5A  Schedule binds Crown

             (1)  This Schedule binds the Crown in each of its capacities.

             (2)  However, this Schedule does not make the Crown liable to be prosecuted for an offence.

6  Definitions

                   In this Schedule, unless the contrary intention appears:

AEC means the Australian Electoral Commission.

Note:          Section 11 is also relevant to this definition.

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.

AWA has the same meaning as in the Workplace Relations Act.

award means:

                     (a)  an award within the meaning of the Workplace Relations Act; and

                     (b)  a transitional award within the meaning of Schedule 6 to the Workplace Relations Act.

breach includes non-observance.

civil penalty provision has the meaning given by subsection 305(2).

collective agreement has the same meaning as in the Workplace Relations Act.

collective body means:

                     (a)  in relation to an organisation—the committee of management or a conference, council, committee, panel or other body of or within the organisation; and

                     (b)  in relation to a branch of an organisation—the committee of management or a conference, council, committee, panel or other body of or within the branch.

collegiate electoral system, in relation to an election for an office in an organisation, means a method of election comprising a first stage, at which persons are elected to a number of offices by a direct voting system, and a subsequent stage or subsequent stages at which persons are elected by and from a body of persons consisting only of:

                     (a)  persons elected at the last preceding stage; or

                     (b)  persons elected at the last preceding stage and other persons (being in number not more than 15% of the number of persons comprising the body) holding offices in the organisation (including the office to which the election relates), not including any person holding such an office merely because of having filled a casual vacancy in the office within the last 12 months, or the last quarter, of the term of the office.

Commission means the Australian Industrial Relations Commission established under section 61 of the Workplace Relations Act.

committee of management:

                     (a)  in relation to an organisation, association or branch of an organisation or association, means the group or body of persons (however described) that manages the affairs of the organisation, association or branch; and

                     (b)  in relation to a reporting unit, means the group or body of persons (however described) that, under the rules of the reporting unit, is responsible for undertaking the functions necessary to enable the reporting unit to comply with Part 3 of Chapter 8.

Commonwealth authority means:

                     (a)  a body corporate established for a public purpose by or under a law of the Commonwealth or the Australian Capital Territory; or

                     (b)  a body corporate:

                              (i)  incorporated under a law of the Commonwealth or a State or Territory; and

                             (ii)  in which the Commonwealth has a controlling interest.

conduct includes being (whether directly or indirectly) a party to, or concerned in, the conduct.

constitutional corporation means:

                     (a)  a foreign corporation within the meaning of paragraph 51(xx) of the Constitution; or

                     (b)  a body corporate that is, for the purposes of paragraph 51(xx) of the Constitution, a financial corporation formed within the limits of the Commonwealth; or

                     (c)  a body corporate that is, for the purposes of paragraph 51(xx) of the Constitution, a trading corporation formed within the limits of the Commonwealth; or

                     (d)  a body corporate that is incorporated in a Territory; or

                     (e)  a Commonwealth authority.

declaration envelope means an envelope in the form prescribed by the regulations on which a voter is required to make a declaration containing the prescribed information.

demarcation dispute includes:

                     (a)  a dispute arising between 2 or more organisations, or within an organisation, as to the rights, status or functions of members of the organisations or organisation in relation to the employment of those members; or

                     (b)  a dispute arising between employers and employees, or between members of different organisations, as to the demarcation of functions of employees or classes of employees; or

                     (c)  a dispute about the representation under this Schedule or the Workplace Relations Act of the industrial interests of employees by an organisation of employees.

Deputy Industrial Registrar means a Deputy Industrial Registrar appointed under section 141 of the Workplace Relations Act.

direct voting system, in relation to an election for an office in an organisation, means a method of election at which:

                     (a)  all financial members; or

                     (b)  all financial members included in the branch, section, class or other division of the members of the organisation that is appropriate having regard to the nature of the office;

are, subject to reasonable provisions in relation to enrolment, eligible to vote.

Electoral Commissioner has the same meaning as in the Commonwealth Electoral Act 1918.

electoral official means an Australian Electoral Officer or a member of the staff of the AEC.

eligibility rules, in relation to an organisation or association, means the rules of the organisation or association that relate to the conditions of eligibility for membership or the description of the industry or enterprise (if any) in connection with which the organisation is, or the association is proposed to be, registered.

employee includes any person whose usual occupation is that of employee, but does not include a person who is undertaking a vocational placement within the meaning of section 4 of the Workplace Relations Act.

employer includes:

                     (a)  a person who is usually an employer; and

                     (b)  an unincorporated club.

employing authority, in relation to a class of employees, means the person or body, or each of the persons or bodies, prescribed as the employing authority in relation to the class of employees.

Employment Advocate means the Employment Advocate referred to in Part 5 of the Workplace Relations Act.

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 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.

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 has the meaning given by subsection 18B(2).

federal system employer has the meaning given by subsection 18A(2).

financial records includes the following to the extent that they relate to finances or financial administration:

                     (a)  a register;

                     (b)  any other record of information;

                     (c)  financial reports or financial records, however compiled, recorded or stored;

                     (d)  a document.

financial year, in relation to an organisation, means:

                     (a)  the period of 12 months commencing on 1 July in any year; or

                     (b)  if the rules of the organisation provide for another period of 12 months as the financial year of the organisation—the other period of 12 months.

Note:          Section 240 provides for a different financial year in special circumstances.

Full Bench means a Full Bench of the Commission.

general purpose financial report means the report prepared in accordance with section 253.

independent contractor is confined to a natural person.

industrial action has the meaning given by section 7.

Industrial Registrar means the Industrial Registrar appointed under section 133 of the Workplace Relations Act.

Industrial Registry means the Australian Industrial Registry established under section 128 of the Workplace Relations Act.

irregularity, in relation to an election or ballot, includes:

                     (a)  a breach of the rules of an organisation or branch of an organisation; and

                     (b)  an act or omission by means of which:

                              (i)  the full and free recording of votes by all persons entitled to record votes and by no other persons; or

                             (ii)  a correct ascertainment or declaration of the results of the voting;

                            is, or is attempted to be, prevented or hindered; and

                     (c)  a contravention of section 190.

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 Schedule.

Note:          Organisations registered under the Workplace Relations Act immediately before this Schedule commenced are taken to be registered under this Schedule (see the Workplace Relations Legislation Amendment (Registration and Accountability of Organisations) (Consequential Provisions) Act 2002).

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 Rules of the Commission made under section 124 of the Workplace Relations Act.

President means the President of the Commission.

Presidential Member means the President, a Vice President, a Senior Deputy President or a Deputy President, of the Commission.

public sector employment has the same meaning as in the Workplace Relations Act.

Registrar means the Industrial Registrar or a Deputy Industrial Registrar.

registry means the Principal Registry or another registry established under section 130 of the Workplace Relations Act.

Registry official means:

                     (a)  a Registrar; or

                     (b)  a member of the staff of the Industrial Registry.

reporting guidelines mean the guidelines issued under section 255.

reporting unit has the meaning given by section 242.

State award has the same meaning as in the Workplace Relations Act.

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 Workplace Relations Act.

State-registered association has the meaning given by clause 1 of Schedule 10 to the Workplace Relations Act.

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

this Schedule includes regulations made under this Schedule.

transitionally registered association has the meaning given by clause 1 of Schedule 10 to the Workplace Relations Act.

workplace inspector means a person appointed as a workplace inspector under section 167 of the Workplace Relations Act.

Workplace Relations Act means the Workplace Relations Act 1996 and regulations made under section 846 of that Act but does not include this Schedule or regulations made under section 359 of this Schedule.

6A  References to provisions in this Schedule

                   In this Schedule, a reference to a provision is a reference to a provision of this Schedule, unless the contrary intention appears.

7  Meaning of industrial action

             (1)  For the purposes of this Schedule, industrial action means any action of the following kinds:

                     (a)  the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

                     (b)  a ban, limitation or restriction on the performance of work by an employee or on acceptance of or offering for work by an employee;

                     (c)  a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

                     (d)  the lockout of employees from their employment by the employer of the employees;

but does not include the following:

                     (e)  action by employees that is authorised or agreed to by the employer of the employees;

                      (f)  action by an employer that is authorised or agreed to by or on behalf of employees of the employer;

                     (g)  action by an employee if:

                              (i)  the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and

                             (ii)  the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

Note 1:       See also subsection (4), which deals with the burden of proof of the exception in subparagraph (g)(i) of this definition.

Note 2:       The issue of whether action that is not industrial in character is industrial action was considered by the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290. In that case, the Full Bench of the Commission drew a distinction between an employee who does not attend for work in support of a collective demand that the employer agree to alteration of the conditions of employment as being clearly engaged in industrial action and an employee who does not attend for work on account of illness.

             (2)  For the purposes of this Schedule:

                     (a)  conduct is capable of constituting industrial action even if the conduct relates to part only of the duties that employees are required to perform in the course of their employment; and

                     (b)  a reference to industrial action includes a reference to a course of conduct consisting of a series of industrial actions.

Meaning of lockout

             (3)  For the purposes of this section, an employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts (except to the extent that this would be an expansion of the ordinary meaning of that expression).

Burden of proof

             (4)  Whenever a person seeks to rely on subparagraph (g)(i) of the definition of industrial action in subsection (1), that person has the burden of proving that subparagraph (g)(i) applies.

9  Meaning of office

             (1)  In this Schedule, 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 Schedule, a reference to an office in an association or organisation includes a reference to an office in a branch of the association or organisation.

10  Forging and uttering

Forging

             (1)  For the purposes of this Schedule, 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 Schedule, 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 Schedule, 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 Schedule, 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 Schedule, 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 Schedule, 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 the Industrial Registry

             (1)  The functions of the Industrial Registry include:

                     (a)  keeping a register of organisations; and

                     (b)  providing advice and assistance to organisations in relation to their rights and obligations under this Schedule.

Note:          Other functions of the Industrial Registry are set out in section 129 of the Workplace Relations Act.

             (2)  Subject to this Schedule, the register of organisations is to be kept in whatever form the Industrial Registrar considers appropriate.

14  President may establish Organisations Panel

             (1)  The President may establish a panel (the Organisations Panel) of members of the Commission to exercise the powers of the Commission under this Schedule.

             (2)  The Organisations Panel is to consist of:

                     (a)  a Presidential Member whose duties include organising and allocating the work of the Panel; and

                     (b)  one or more other members of the Commission assigned to the Panel by the President.

             (3)  A member of the Organisations Panel may be a member of one or more panels referred to in section 95 of the Workplace Relations Act.

Note:          Section 95 of the Workplace Relations Act provides for the setting up of Commission panels for particular industries.

             (4)  The fact that a person is a member of the Organisations Panel does not affect any powers, function or duties that have been, or may be, given to the person by or under any other provision of this Schedule or the Workplace Relations Act.

             (5)  Even if the President establishes an Organisations Panel, he or she may direct that the powers of the Commission in relation to a particular matter arising under this Schedule are to be exercised by:

                     (a)  a member of the Commission who is not a member of the Panel; or

                     (b)  members of the Commission, some or all of whom are not members of the Panel.

15  Disapplication of Part 2.5 of Criminal Code

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

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

Note 2:       For the purposes of this Schedule (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 Schedule (other than a section that is divided into subsections); or

                     (b)  at the foot of a subsection of this Schedule;

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 2Registration and cancellation of registration

Part 1Simplified outline of Chapter

  

17  Simplified outline

This Chapter deals with the types of employer and employee associations that can be registered and the conditions for their registration (see Part 2). Part 2 also prohibits certain kinds of discriminatory conduct by employers and organisations in relation to the formation and registration of employee associations.

This Chapter also provides that an organisation’s registration can be cancelled by the Federal Court or by the Commission. It sets out the grounds and procedures for cancellation, and the consequences of cancellation (see Part 3).


 

Part 2Registration

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)  the majority of its members are federal system employers.

             (2)  An employer is a federal system employer if the employer is:

                     (a)  a constitutional corporation; or

                     (b)  an employer in relation to an enterprise that:

                              (i)  operates principally within or from a Territory; or

                             (ii)  is engaged principally in trade or commerce between Australia and a place outside Australia; or

                            (iii)  is engaged principally in trade or commerce among the States; or

                            (iv)  is engaged principally in trade or commerce within a Territory, between a State and a Territory or between 2 Territories; or

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

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

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

                     (c)  an employer in relation to public sector employment; or

                     (d)  an employer in Victoria, provided the provisions of this Schedule that would apply to the employer as a federal system employer, or to an association of which the employer is a member, fall within the legislative power referred to the Commonwealth under the Commonwealth Powers (Industrial Relations) Act 1996 of Victoria.

             (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 Schedule (whether before or after the commencement of this subsection); and

                     (b)  the majority of its members are not 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)  the majority of its members are federal system employees.

             (2)  A person is a federal system employee if the person is:

                     (a)  employed by a constitutional corporation; or

                     (b)  employed in an enterprise that:

                              (i)  operates principally within or from a Territory; or

                             (ii)  is engaged principally in trade or commerce between Australia and a place outside Australia; or

                            (iii)  is engaged principally in trade or commerce among the States; or

                            (iv)  is engaged principally in trade or commerce within a Territory, between a State and a Territory or between 2 Territories; or

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

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

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

                     (c)  employed in public sector employment; or

                     (d)  employed in Victoria, provided the provisions of this Schedule that would apply to the employee as a federal system employee, or to an association of which the employee is a member, fall within the legislative power referred to the Commonwealth under the Commonwealth Powers (Industrial Relations) Act 1996 of Victoria; or

                     (e)  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 one or more of the ways mentioned in paragraphs (a) to (d).

             (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 Schedule (whether before or after the commencement of this subsection); and

                     (b)  the majority of the association’s members are not 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)  the majority 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 Schedule 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 one or more of the ways mentioned in paragraphs 18B(2)(a) to (d); 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 Schedule (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 particular class of employers mentioned in paragraphs 18A(2)(a) to (d) were included when working out whether the majority of its members are federal system employers, subsection 18A(2) 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 particular class of person mentioned in paragraphs 18B(2)(a) to (e) were included when working out whether the majority of its members are federal system employees, subsection 18B(2) 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 2Registration criteria

19  Criteria for registration of associations other than enterprise associations

             (1)  The Commission must grant an application for registration made by an association (other than an enterprise association) that, under section 18, may apply for registration as an organisation if, and only if:

                     (a)  the association:

                              (i)  is a genuine association of a kind referred to in 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)  the Commission is satisfied that the association would conduct its affairs in a way that meets the obligations of an organisation under this Schedule and the Workplace Relations Act; and

                      (f)  the rules of the association make provision as required by this Schedule 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 Schedule (see section 5) and the object set out in section 3 of the Workplace Relations Act; and

                      (j)  subject to subsection (2), there is no organisation to which members of the association might belong or, if there is such an organisation, it is not an organisation:

                              (i)  to which the members of the association could more conveniently belong; and

                             (ii)  that would more effectively represent those members.

             (2)  If:

                     (a)  there is an organisation to which the members of the association might belong; and

                     (b)  the members of the association could more conveniently belong to the organisation; and

                     (c)  the organisation would more effectively represent those members than the association would;

the requirements of paragraph (1)(j) are taken to have been met if the Commission accepts an undertaking from the association that the Commission considers appropriate to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of the organisation and the eligibility rules of the association.

             (3)  Without limiting the matters that the Commission may take into account in considering, under subparagraph (1)(j)(ii), the effectiveness of the representation of an organisation or association, the Commission must take into account whether the representation would be consistent with Parliament’s intention in enacting this Schedule (see section 5) and the object set out in section 3 of the Workplace Relations Act.

             (4)  In applying paragraph (1)(e), the Commission must have regard to whether any recent conduct by the association or its members would have provided grounds for an application under section 28 had the association been registered when the conduct occurred.

20  Criteria for registration of enterprise associations

             (1)  The Commission must grant an application for registration made by an enterprise association that, under section 18, may apply for registration as an organisation if, and only if:

                     (a)  the association:

                              (i)  is a genuine association of a kind referred to in 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)  the Commission is satisfied that the association would conduct its affairs in a way that meets the obligations of an organisation under this Schedule and the Workplace Relations Act; and

                     (e)  the rules of the association make provision as required by this Schedule to be made by the rules of organisations; and

                      (f)  the association does not have the same name as that of an organisation or a name that is so similar to the name of an organisation as to be likely to cause confusion; and

                     (g)  the Commission is satisfied that a majority of the persons eligible to be members of the association support its registration as an organisation; and

                     (h)  a majority of the members present at a general meeting of the association, or an absolute majority of the committee of management of the association, have passed, under the rules of the association, a resolution in favour of registration of the association as an organisation; and

                      (i)  the registration of the association would further Parliament’s intention in enacting this Schedule (see section 5) and the object set out in section 3 of the Workplace Relations Act.

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

Note:          The Commission 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), the Commission must have regard to whether any recent conduct by the association or its members would have provided grounds for an application under section 28 had the association been registered when the conduct occurred.


 

Division 3Prohibited 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 Schedule 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 the Commission in relation to such an application;

                     (d)  not participating, or encouraging a person not to participate, in such proceedings;

                     (e)  becoming a member, or encouraging a person to become a member, of an employee association.

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 Schedule 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 4Registration process

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

             (1)  The Commission may, on the application of an association applying to be registered as an organisation, grant leave to the association, on such terms and conditions as the Commission considers appropriate, to change its name or to alter its rules:

                     (a)  to enable it to comply with this Schedule; or

                     (b)  to remove a ground of objection taken by an objector under the regulations or by the Commission; or

                     (c)  to correct a formal error in its rules (for example, to remove an ambiguity, to correct spelling or grammar, or to correct an incorrect reference to an organisation or person).

Note:          Paragraph (a)—in order for an organisation to comply with this Schedule, its rules must not be contrary to the Workplace Relations Act (see paragraph 142(a) of this Schedule).

             (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 the Commission grants an application by an association for registration as an organisation, the Industrial Registrar must immediately enter, in the register kept under paragraph 13(1)(a), such particulars in relation to the association as are prescribed and the date of the entry.

             (2)  An association is to be taken to be registered under this Schedule when the Industrial Registrar enters the prescribed particulars in the register under subsection (1).

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

             (4)  The Industrial Registrar must issue to each organisation registered under this Schedule a certificate of registration in the prescribed form.

Note:          Certificates of registration issued under the Workplace Relations Act continue in force (see the Workplace Relations 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 Industrial Registrar may, as prescribed, issue to an organisation a copy of, or a certificate replacing, the certificate of registration issued under subsection (4) or that certificate as amended under section 160.

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 3Cancellation 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 an award, an order of the Commission or a collective agreement, or its continued failure to ensure that its members comply with and observe an award, an order of the Commission or a collective agreement, or in any other respect); or

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

                            has prevented or hindered the achievement of Parliament’s intention in enacting this Schedule (see section 5) or of an object of this Schedule or the Workplace Relations Act; or

                     (b)  the organisation, or a substantial number of the members of the organisation or of a section or class of members of the organisation, has engaged in industrial action that has prevented, hindered or interfered with:

                              (i)  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 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 496(12) of the Workplace Relations Act (which deals with orders to stop industrial action); or

                             (ii)  an order made under section 508 or 509 of the Workplace Relations Act (which deals with contraventions of the strike pay provisions); or

                            (iii)  an order made under section 807 of the Workplace Relations Act (which deals with contraventions of the freedom of association provisions); or

                            (iv)  an interim injunction granted under section 838 of the Workplace Relations 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 Workplace Relations 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 Industrial Registrar 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 a Registrar 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 Schedule 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 under section 23 or subsection 131(2) of this Schedule, or section 496, 508, 509 or 807 of the Workplace Relations Act, is admissible as prima facie evidence of that fact in an application made on a ground specified in paragraph (1)(d).

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 Schedule, the Workplace Relations Act or any other Act, under awards or orders made under this Schedule, the Workplace Relations Act or any other Act or under collective 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)  The Commission may cancel the registration of an organisation:

                     (a)  on application by the organisation made under the regulations; or

                     (b)  on application by an organisation or person interested or by the Minister, if the Commission has satisfied itself, as prescribed, that the organisation:

                              (i)  was registered by mistake; or

                             (ii)  is no longer effectively representative of the members who are employers or employees, as the case requires; or

                            (iii)  is not free from control by, or improper influence from, a person or body referred to in paragraph 19(1)(b) or 20(1)(b), as the case requires; or

                            (iv)  subject to subsection (6), if the organisation is an enterprise association—the enterprise to which it relates has ceased to exist; or

                     (c)  on the Commission’s own motion, if:

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

                             (ii)  the organisation is an organisation of employees, 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 the Commission cancels the registration of an organisation under:

                     (a)  paragraph (1)(b) on application by a person interested or by the Minister; or

                     (b)  paragraph (1)(c);

the Commission must give the organisation an opportunity to be heard.

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

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

                     (b)  the Commission does not consider it appropriate to amend the eligibility rules of the organisation under section 157.

             (4)  A cancellation under subsection (3) may be made:

                     (a)  on application by an organisation or person interested; or

                     (b)  on application by the Minister; or

                     (c)  on the Commission’s own motion.

             (5)  For the purposes of subparagraph (1)(b)(iv), the enterprise to which an organisation relates has ceased to exist if:

                     (a)  in the case of an organisation that relates only to an operationally distinct part or parts of the business that constitutes the enterprise—that part or those parts have ceased to exist, or the whole of the business has ceased to exist; or

                     (b)  in the case of an organisation that relates to the whole of the business that constitutes the enterprise—the whole of the business has ceased to exist.

             (6)  Subparagraph (1)(b)(iv) does not apply if:

                     (a)  some or all of the business of the enterprise in question is now conducted by another enterprise; and

                     (b)  all the alterations that are necessary to enable the organisation to operate as an enterprise association in relation to the other enterprise have been made; and

                     (c)  the Commission is satisfied that the organisation still meets the requirements of subsection 20(1).

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

31  Cancellation to be recorded

                   If the registration of an organisation under this Schedule is cancelled, the Industrial Registrar 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 Schedule has the following consequences:

                     (a)  the organisation ceases to be an organisation and a body corporate under this Schedule, but does not because of the cancellation cease to be an association;

                     (b)  the cancellation does not relieve the association or any of its members from any penalty or liability incurred by the organisation or its members before the cancellation;

                     (c)  from the cancellation, the association and its members are not entitled to the benefits of any award, order of the Commission or collective agreement that bound the organisation or its members;

                     (d)  the Commission may, on application by an organisation or person interested, make such order as the Commission considers appropriate about the other effects (if any) of such an award, order or agreement on the association and its members;

                     (e)  21 days after the cancellation, such an award, order or agreement ceases, subject to any order made under paragraph (d), in all other respects to have effect in relation to the association and its members;

                      (f)  the Federal Court may, on application by a person interested, make such order as it considers appropriate in relation to the satisfaction of the debts and obligations of the organisation out of the property of the organisation;

                     (g)  the property of the organisation is, subject to any order made under paragraph (f), the property of the association and must be held and applied for the purposes of the association under the rules of the organisation so far as they can still be carried out or observed.


 

Part 4Commission’s powers under this Chapter

  

33  Powers exercisable by Presidential Member

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


 

Chapter 3Amalgamation and withdrawal from amalgamation

Part 1Simplified outline of Chapter

  

34  Simplified outline

The procedure for the amalgamation of 2 or more organisations is set out in Part 2 of this Chapter.

The 2 main elements of the amalgamation procedure are an application to the Commission seeking approval for a ballot to be held on the question of amalgamation, and the holding of a ballot conducted by the Australian Electoral Commission.

Part 2 also sets out the consequences of an amalgamation (for example, in relation to assets and liabilities of the organisations forming the new amalgamated organisation). It also enables the validation of certain acts done for the purposes of an amalgamation.

The procedure that enables part of an amalgamated organisation to withdraw from it is set out in Part 3 of this Chapter.

The main elements of the procedure to withdraw are an application to the Federal Court for approval to hold a ballot on the question, and the holding of the ballot.

Part 3 also sets out the consequences of a withdrawal from amalgamation (for example, in relation to assets and liabilities of the amalgamated organisation and the constituent part). It also enables the validation of certain acts done for the purposes of a withdrawal from amalgamation.


 

Part 2Amalgamation of organisations

Division 1General

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 the Commission that the performance of an act, including:

                     (a)  the de-registration of an organisation; and

                     (b)  the registration of an organisation; and

                     (c)  the giving of consent to:

                              (i)  a change in the name of an organisation; or

                             (ii)  an alteration of the eligibility rules of an organisation;

is sought for the purposes of a proposed amalgamation, the Commission may perform the act only in accordance with this Part.

             (3)  If any difficulty arises, or appears likely to arise, in the application of this Schedule for the purpose of implementing the scheme for a proposed amalgamation, the Commission may give directions and make orders to resolve the difficulty.

             (4)  Directions and orders under subsection (3):

                     (a)  have effect subject to any order of the Federal Court; and

                     (b)  have effect despite anything in:

                              (i)  the regulations or the Rules of the Commission; or

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

37  Exercise of Commission’s powers under this Part

                   The powers of the Commission under this Part are exercisable only by a Presidential Member.


 

Division 2Preliminary matters

38  Federations

Application for recognition as federation

             (1)  The existing organisations concerned in a proposed amalgamation may jointly lodge in the Industrial Registry an application for recognition as a federation.

             (2)  The application must:

                     (a)  be lodged before an application is lodged under section 44 in relation to the amalgamation; and

                     (b)  include such particulars as are prescribed.

Grant of application

             (3)  If the Commission is satisfied that the organisations intend to lodge an application under section 44 in relation to the amalgamation within the prescribed period, the Commission must grant the application for recognition as a federation.

Registration of federation

             (4)  If the application is granted, the Industrial Registrar must enter in the register kept under paragraph 13(1)(a) such details in relation to the federation as are prescribed.

Representation rights of federation

             (5)  On registration, the federation may, subject to subsection (6) and the regulations, represent its constituent members for all of the purposes of this Schedule and the Workplace Relations Act.

             (6)  Subsection (5) does not authorise the federation to become a party to an award or to become bound by a collective agreement.

Federation may vary its composition

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

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

                     (b)  releasing, with the approval of the Commission, an organisation from the federation.

When federation ceases to exist

             (8)  The federation ceases to exist:

                     (a)  on the day on which the amalgamation takes effect; or

                     (b)  if an application under section 44 is not lodged in relation to the amalgamation within the prescribed period—on the day after the end of the period; or

                     (c)  if it appears to a Full Bench, on an application by a prescribed person, that the industrial conduct of the federation, or an organisation belonging to the federation, is preventing or hindering the attainment of Parliament’s intention in enacting this Schedule (see section 5) or an object of this Schedule or the Workplace Relations Act—on the day the Full Bench so determines.

Federation does not limit representation rights of organisations

             (9)  Nothing in this section limits the right of an organisation belonging to a federation to represent itself or its members.

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 3Commencement 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 in the Industrial Registry an application for a declaration under this section in relation to the amalgamation.

             (2)  The application must be lodged:

                     (a)  before an application has been lodged under section 44 in relation to the amalgamation; or

                     (b)  with the application that is lodged under section 44 in relation to the amalgamation.

             (3)  If the application is lodged before an application has been lodged under section 44 in relation to the amalgamation, the Commission:

                     (a)  must immediately fix a time and place for hearing submissions in relation to the making of the declaration; and

                     (b)  must ensure that all organisations are promptly notified of the time and place of the hearing; and

                     (c)  may inform any other person who is likely to be interested of the time and place of the hearing.

Making of declaration

             (4)  If, at the conclusion of the hearing arranged under subsection (3) or section 53 in relation to the proposed amalgamation, the Commission is satisfied that there is a community of interest between the existing organisations in relation to their industrial interests, the Commission must declare that it is so satisfied.

Pre-conditions to making of declaration

             (5)  The Commission must be satisfied, for the purposes of subsection (4), that there is a community of interest between organisations of employees in relation to their industrial interests if the Commission is satisfied that a substantial number of members of one of the organisations are:

                     (a)  eligible to become members of the other organisation or each of the other organisations; or

                     (b)  engaged in the same work or in aspects of the same or similar work as members of the other organisation or each of the other organisations; or

                     (c)  bound by the same awards as members of the other organisation or each of the other organisations; or

                     (d)  employed in the same or similar work by employers engaged in the same industry as members of the other organisation or each of the other organisations; or

                     (e)  engaged in work, or in industries, in relation to which there is a community of interest with members of the other organisation or each of the other organisations.

             (6)  The Commission must be satisfied, for the purposes of subsection (4), that there is a community of interest between organisations of employers in relation to their industrial interests if the Commission is satisfied that a substantial number of members of one of the organisations are:

                     (a)  eligible to become members of the other organisation or each of the other organisations; or

                     (b)  engaged in the same industry or in aspects of the same industry or similar industries as members of the other organisation or each of the other organisations; or

                     (c)  bound by the same awards as members of the other organisation or each of the other organisations; or

                     (d)  engaged in industries in relation to which there is a community of interest with members of the other organisation or each of the other organisations.

             (7)  Subsections (5) and (6) do not limit by implication the circumstances in which the Commission may be satisfied, for the purposes of subsection (4), that there is a community of interest between organisations in relation to their industrial interests.

Circumstances in which declaration ceases to be in force

             (8)  If:

                     (a)  an application for a declaration under this section in relation to a proposed amalgamation is lodged before an application has been lodged under section 44 in relation to the amalgamation; and

                     (b)  a declaration is made under this section in relation to the amalgamation; and

                     (c)  an application is not lodged under section 44 in relation to the amalgamation within 6 months after the declaration is made;

the declaration ceases to be in force.

             (9)  The Commission may revoke a declaration under this section if the Commission is satisfied that there is no longer a community of interest between the organisations concerned in relation to their industrial interests.

           (10)  However, before the Commission revokes the declaration, it must:

                     (a)  give reasonable notice of its intention to revoke to each of the organisations that applied for the declaration; and

                     (b)  give each of those organisations an opportunity to be heard.

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 in the Industrial Registry an application for approval for the submission of the amalgamation to ballot.

             (2)  The application must be accompanied by:

                     (a)  a copy of the scheme for the amalgamation; and

                     (b)  a written outline of the scheme.

             (3)  Subject to section 62, the outline must, in no more than 3,000 words, provide sufficient information on the scheme to enable members of the existing organisations to make informed decisions in relation to the scheme.

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 in the Industrial Registry an application for exemption from the requirement that a ballot of its members be held in relation to the amalgamation.

             (2)  The application must be lodged with the application that is lodged under section 44 in relation to the amalgamation.

47  Application for ballot not conducted under section 65

             (1)  An existing organisation concerned in a proposed amalgamation may lodge in the Industrial Registry an application for approval of a proposal for the submission of the amalgamation to a ballot of its members that is not conducted under section 65.

             (2)  The application must be lodged with the application that is lodged under section 44 in relation to the amalgamation.

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 4Role 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 Industrial Registrar must immediately notify the AEC of the application.

             (2)  On being notified of the application, the AEC must immediately take such action as it considers necessary or desirable to enable it to conduct as quickly as possible any ballots that may be required in relation to the amalgamation.

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 in the Industrial Registry, as soon as practicable but no later than the day before the first day of voting in the relevant election.

             (3)  A person must not, in a declaration for the purposes of subsection (1), make a statement if the person knows, or is reckless as to whether, the statement is false or misleading.

Note:          This subsection is a civil penalty provision (see section 305).


 

Division 5Procedure 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, the Commission:

                     (a)  must immediately fix a time and place for hearing submissions in relation to:

                              (i)  the granting of an approval for the submission of the amalgamation to ballot; and

                             (ii)  if an application for a declaration under section 43 was lodged with the application—the making of a declaration under section 43 in relation to the amalgamation; and

                            (iii)  if an application was lodged under section 46 for exemption from the requirement that a ballot be held in relation to the amalgamation—the granting of the exemption; and

                            (iv)  if an application was lodged under section 47 for approval of a proposal for the submission of the amalgamation to a ballot that is not conducted under section 65—the granting of the approval; and

                     (b)  must ensure that all organisations are promptly notified of the time and place of the hearing; and

                     (c)  may inform any other person who is likely to be interested of the time and place of the hearing.

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 the Commission 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, the Commission is satisfied that:

                     (a)  the amalgamation does not involve the registration of an association as an organisation; and

                     (b)  a person who is not eligible for membership of an existing organisation concerned in the amalgamation would not be eligible for membership of the proposed amalgamated organisation immediately after the amalgamation takes effect; and

                     (c)  any proposed alteration of the name of an existing organisation concerned in the amalgamation will not result in the organisation having a name that is the same as the name of another organisation or is so similar to the name of another organisation as to be likely to cause confusion; and

                     (d)  any proposed alterations of the rules of an existing organisation comply with, and are not contrary to, this Schedule, the Workplace Relations Act, awards or collective agreements, and are not contrary to law; and

                     (e)  any proposed de-registration of an existing organisation complies with this Schedule and is not otherwise contrary to law;

the Commission must approve the submission of the amalgamation to ballot.

Approval generally refused if conditions not satisfied

             (2)  If the Commission is not satisfied, the Commission must, subject to subsections (3) and (7), refuse to approve, under this section, the submission of the amalgamation to ballot.

Approval may be given if conditions will be satisfied later

             (3)  If, apart from this subsection, the Commission would be required to refuse to approve the submission of the amalgamation to ballot, the Commission may:

                     (a)  permit the applicants to alter the scheme for the amalgamation, including any proposed alterations of the rules of the existing organisations concerned in the amalgamation; or

                     (b)  accept an undertaking by the applicants to alter the scheme for the amalgamation, including any proposed alterations of the rules of the existing organisations concerned in the amalgamation;

and, if the Commission is satisfied that the matters mentioned in subsection (1) will be met, the Commission must approve the submission of the amalgamation to ballot.

Permission to alter amalgamation scheme

             (4)  A permission under paragraph (3)(a):

                     (a)  may, despite anything in the rules of an existing organisation concerned in the proposed amalgamation, authorise the organisation to alter the scheme (including any proposed alterations of the rules of the organisation) by resolution of its committee of management; and

                     (b)  may make provision in relation to the procedure that, despite anything in those rules, may be followed, or is to be followed, by the committee of management in that regard; and

                     (c)  may be given subject to conditions.

Powers of Commission if conditions or undertakings breached

             (5)  If:

                     (a)  the Commission:

                              (i)  gives a permission under paragraph (3)(a) subject to conditions; or

                             (ii)  accepts an undertaking under paragraph (3)(b); and

                     (b)  the conditions are breached or the undertaking is not fulfilled within the period allowed by the Commission;

the Commission may:

                     (c)  amend the scheme for the amalgamation, including any proposed alterations of the rules of the existing organisations concerned in the proposed amalgamation; or

                     (d)  give directions and orders:

                              (i)  in relation to the conduct of the ballot for the amalgamation; or

                             (ii)  otherwise in relation to the procedure to be followed in relation to the amalgamation.

             (6)  Subsection (5) does not limit by implication the powers that the Commission has apart from that subsection.

Powers of Commission to adjourn proceeding

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

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

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 the Commission under this section.

             (2)  Objection may be made to the Commission in relation to the amalgamation only if the Commission has refused to approve, under section 55, the submission of the amalgamation to ballot.

             (3)  Objection may be made by a prescribed person on a prescribed ground.

             (4)  The Commission is to hear, as prescribed, all objections duly made to the amalgamation.

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, the Commission:

                     (a)  finds that no duly made objection is justified; and

                     (b)  is satisfied that, so far as the amalgamation involves:

                              (i)  the registration of an association; or

                             (ii)  a change in the name of an organisation; or

                            (iii)  an alteration of the rules of an organisation; or

                            (iv)  the de-registration of an organisation under this Part;

                            it complies with, and is not contrary to, this Schedule, the Workplace Relations Act, awards and collective agreements and is not otherwise contrary to law;

the Commission must approve the submission of the amalgamation to ballot.

Approval generally refused if conditions not satisfied

             (2)  If the Commission is not satisfied, the Commission must, subject to subsections (3) and (8), refuse to approve, under this section, the submission of the amalgamation to ballot.

Approval may be given if conditions will be satisfied later

             (3)  If, apart from this subsection, the Commission would be required to refuse to approve the submission of the amalgamation to ballot, the Commission may:

                     (a)  permit the applicants to alter the scheme for the amalgamation, including:

                              (i)  the rules of any association proposed to be registered as an organisation in relation to the amalgamation; or

                             (ii)  any proposed alterations of the rules of the existing organisations concerned in the amalgamation; or

                     (b)  accept an undertaking by the applicants to alter the scheme for the amalgamation, including:

                              (i)  the rules of any association proposed to be registered as an organisation in relation to the amalgamation; or

                             (ii)  any proposed alterations of the rules of the existing organisations concerned in the amalgamation;

and, if the Commission is satisfied that the matters mentioned in subsection (1) will be met, the Commission must approve the submission of the amalgamation to ballot.

Permission to alter amalgamation scheme

             (4)  A permission under subparagraph (3)(a)(i):

                     (a)  may, despite anything in the rules of any association proposed to be registered as an organisation in relation to the proposed amalgamation, authorise the existing organisations concerned in the amalgamation to alter the scheme so far as it affects that association (including any of its rules) by resolution of their committees of management; and

                     (b)  may make provision in relation to the procedure that, despite anything in the rules of the existing organisations or the rules of the association, may be followed, or is to be followed, by the committees of management in that regard; and

                     (c)  may be given subject to conditions.

             (5)  A permission under subparagraph (3)(a)(ii):

                     (a)  may, despite anything in the rules of an existing organisation concerned in the proposed amalgamation, authorise the organisation to alter the scheme (including any proposed alterations of the rules of the organisation, but not including the scheme so far as it affects any association proposed to be registered as an organisation in relation to the proposed amalgamation) by resolution of its committee of management; and

                     (b)  may make provision in relation to the procedure that, despite anything in those rules, may be followed, or is to be followed, by the committee of management in that regard; and

                     (c)  may be given subject to conditions.

Powers of Commission if conditions or undertakings breached

             (6)  If:

                     (a)  the Commission:

                              (i)  gives a permission under paragraph (3)(a) subject to conditions; or

                             (ii)  accepts an undertaking under paragraph (3)(b); and

                     (b)  the conditions are breached or the undertaking is not fulfilled within the period allowed by the Commission;

the Commission may:

                     (c)  amend the scheme for the amalgamation, including:

                              (i)  the rules of any association proposed to be registered as an organisation in relation to the amalgamation; or

                             (ii)  any proposed alterations of the rules of the existing organisations concerned in the amalgamation; or

                     (d)  give directions and orders:

                              (i)  in relation to the conduct of the ballot for the amalgamation; or

                             (ii)  otherwise in relation to the procedure to be followed in relation to the amalgamation.

             (7)  Subsection (6) does not limit by implication the powers that the Commission has apart from that subsection.

Powers of Commission to adjourn proceeding

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

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

58  Fixing commencing and closing days of ballot

             (1)  If the Commission approves, under section 55 or 57, the submission of a proposed amalgamation to ballot, the Commission must, after consulting with the Electoral Commissioner, fix a day as the commencing day of the ballot and a day as the closing day of the ballot.

             (2)  The commencing day must be a day not later than 28 days after the day on which the approval is given unless:

                     (a)  the Commission is satisfied that the AEC requires a longer period to make the arrangements necessary to enable it to conduct the ballot; or

                     (b)  the existing organisations concerned in the amalgamation request the Commission to fix a later day.

             (3)  If the scheme for the amalgamation contains a proposed alternative provision, a single day is to be fixed as the commencing day, and a single day is to be fixed as the closing day, for all ballots in relation to the proposed amalgamation.

             (4)  The Commission may, after consulting with the Electoral Commissioner, vary the commencing day or the closing day.

             (5)  Subsection (4) does not limit by implication the powers of the person conducting a ballot under this Part.

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 the Commission fixes the commencing day and closing day of the ballot or 28 days before the commencing day of the ballot (whichever is the later):

                     (a)  have the right under the rules of the existing organisation concerned to vote at such a ballot; or

                     (b)  if the rules of the existing organisation concerned do not then provide for the right to vote at such a ballot—have the right under the rules of the organisation to vote at a ballot for an election for an office in the organisation that is conducted by a direct voting system.

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, the Commission may permit the organisation to alter the statement.

Members of organisation may lodge “no” statement

             (2)  Not later than 7 days before the day fixed under section 53 for hearing submissions in relation to the amalgamation, members of the organisation (being members whose number is at least the required minimum number) may lodge in the Industrial Registry a written statement of not more than 2,000 words in opposition to the proposed principal amalgamation and any proposed alternative amalgamation.

“No” statement may be altered

             (3)  The Commission may permit a statement lodged under subsection (2) to be altered.

“Yes” and “no” statements to be sent to voters

             (4)  Subject to subsections (5), (6) and (7), a copy of the statements mentioned in subsections (1) and (2), or, if those statements have been altered or amended, those statements as altered or amended, must accompany the ballot paper sent to the persons entitled to vote at a ballot for the amalgamation.

2 or more “no” statements must be combined

             (5)  If 2 or more statements in opposition to the amalgamation are duly lodged in the Industrial Registry under subsection (2):

                     (a)  the Commission must prepare, or cause to be prepared, in consultation, if practicable, with representatives of the persons who lodged each of the statements, a written statement of not more than 2,000 words in opposition to the amalgamation based on both or all the statements and, as far as practicable, presenting fairly the substance of the arguments against the amalgamation contained in both or all the statements; and

                     (b)  the statement prepared by the Commission must accompany the ballot paper for the amalgamation as if it had been the sole statement lodged under subsection (2).

Commission may correct factual errors in statements

             (6)  The Commission may amend a statement mentioned in subsection (1) or (2) to correct factual errors or to ensure that the statement complies with this Schedule.

Statements may include photos etc. if Commission approves

             (7)  A statement mentioned in subsection (1) or (2) may, if the Commission approves, include matter that is not in the form of words, including, for example, diagrams, drawings, illustrations, photographs and symbols.

             (8)  A statement prepared under subsection (5) may include matter that is not in the form of words, including, for example, diagrams, drawings, illustrations, photographs and symbols.

Certain statements not required to be sent to voters

             (9)  Subsection (4) and paragraph (5)(b) do not apply to a ballot that is not conducted under section 65.

Note:          Ballots conducted under section 65 are secret postal ballots.

Definition

           (10)  In this section:

required minimum number, in relation to an organisation, means:

                     (a)  5% of the total number of members of the organisation on the day on which the application was lodged under section 44 in relation to the proposed amalgamation concerned; or

                     (b)  1,000;

whichever is the lesser.

61  Alteration and amendment of scheme

Permission to alter amalgamation scheme

             (1)  The Commission may, at any time before the commencing day of the ballot for a proposed amalgamation, permit the existing organisations concerned in the amalgamation to alter the scheme for the amalgamation, including:

                     (a)  the rules of any association proposed to be registered as an organisation in relation to the amalgamation; or

                     (b)  any proposed alterations of the rules of the existing organisations concerned in the amalgamation.

Permission relating to rules of new organisations

             (2)  A permission under paragraph (1)(a):

                     (a)  may, despite anything in the rules of any association proposed to be registered as an organisation in relation to the proposed amalgamation, authorise the existing organisations concerned in the amalgamation to alter the scheme so far as it affects that association (including any of its rules) by resolution of their committees of management; and

                     (b)  may make provision in relation to the procedure that, despite anything in the rules of the existing organisations or the rules of the association, may be followed, or is to be followed, by the committees of management in that regard; and

                     (c)  may be given subject to conditions.

Permission relating to rules of existing organisations

             (3)  A permission under paragraph (1)(b):

                     (a)  may, despite anything in the rules of an existing organisation concerned in a proposed amalgamation, authorise the organisation to amend the scheme (including any proposed alterations of the rules of the organisation, but not including the scheme so far as it affects any association proposed to be registered as an organisation in relation to the proposed amalgamation) by resolution of its committee of management; and

                     (b)  may make provision in relation to the procedure that, despite anything in those rules, may be followed, or is to be followed, by the committee of management in that regard; and

                     (c)  may be given subject to conditions.

Powers of Commission if conditions breached

             (4)  If:

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

                     (b)  the conditions are breached;

the Commission may:

                     (c)  amend the scheme for the amalgamation, including:

                              (i)  the rules of any association proposed to be registered as an organisation in relation to the amalgamation; or

                             (ii)  any proposed alterations of the rules of the existing organisations concerned in the amalgamation; or

                     (d)  give directions and orders:

                              (i)  in relation to the conduct of the ballot for the amalgamation; or

                             (ii)  otherwise in relation to the procedure to be followed in relation to the amalgamation.

             (5)  Subsection (4) does not limit by implication the powers that the Commission has apart from that subsection.

Outline of scheme must change if scheme changes

             (6)  If the scheme for the amalgamation is altered or amended (whether under this section or otherwise), the outline of the scheme must be altered or amended to the extent necessary to reflect the alterations or amendments.

62  Outline of scheme for amalgamation

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

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

             (3)  The Commission:

                     (a)  may, at any time before the commencing day of the ballot for the amalgamation, permit the existing organisations concerned in the amalgamation to alter the outline; and

                     (b)  may amend the outline to correct factual errors or otherwise to ensure that it complies with this Schedule.

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;

the Commission must, at the conclusion of the hearing arranged under section 53 in relation to the amalgamation, grant the exemption unless the Commission considers that, in the special circumstances of the case, the exemption should be refused.

             (2)  If the exemption is granted, the members of the applicant organisation are taken to have approved the proposed principal amalgamation and each proposed alternative amalgamation (if any).

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)  the Commission is satisfied, after consulting with the Electoral Commissioner:

                              (i)  that the proposal is practicable; and

                             (ii)  that approval of the proposal is likely:

                                        (A)  to result in participation by members of the organisation that is fuller than the participation that would have been likely to have resulted if the ballot were conducted under section 65; and

                                        (B)  to give the members of the organisation an adequate opportunity to vote on the amalgamation without intimidation;

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

65  Secret postal ballot of members

Ballot on proposed principal amalgamation

             (1)  If the Commission approves, under section 55 or 57, the submission of a proposed amalgamation to ballot, the AEC must, in relation to each of the existing organisations concerned in the amalgamation, conduct a secret postal ballot of the members of the organisation on the question whether they approve the proposed principal amalgamation.

Ballot at same time on proposed alternative amalgamation

             (2)  If the scheme for the amalgamation contains a proposed alternative provision, the AEC must also conduct, at the same 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 Schedule.

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)  the Commission 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)  the Commission 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 in the Industrial Registry 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, the Commission 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 the Commission may give such directions and make such further orders as the Commission 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 Industrial Registrar; 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 6Amalgamation 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 the Commission 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 Schedule, the Workplace Relations Act or other Commonwealth laws; or

                             (ii)  breaches of:

                                        (A)  awards or collective agreements; or

                                        (B)  orders made under this Schedule, the Workplace Relations 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;

the Commission 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 Industrial Registrar 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)  the Commission 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)  the Commission 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, the Commission determines that the organisation has not complied with the undertaking;

the Commission 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 the Commission directs.

76  Effect of amalgamation on awards, orders and collective agreements

                   On and from the amalgamation day:

                     (a)  an award, an order of the Commission or a collective agreement that was, immediately before that day, binding on a proposed de-registering organisation and its members becomes, by force of this section, binding on 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 Industrial Registrar 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 the Commission:

                     (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 Workplace Relations 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 Schedule, the Workplace Relations Act or in any other Commonwealth law or any State or Territory law.


 

Division 7Validation

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 3Withdrawal from amalgamations

Division 1General

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 Schedule or the Workplace Relations Act 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 2Ballots for withdrawal from amalgamated organisations

94  Applications to the Commission for ballots

             (1)  An application may be made to the Commission 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 (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:

                              (i)  if the amalgamation occurred before 31 December 1996—before the period of 3 years after the commencement of this subparagraph has elapsed or, if a longer period is prescribed, before that longer period has elapsed; or

                             (ii)  if the amalgamation occurred after 31 December 1996—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, the Commission 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 the Commission 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 Industrial Registrar to:

                     (a)  give the applicant all information in the possession of the Industrial Registrar 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 Industrial Registrar may provide that information, or direct the amalgamated organisation to provide that information.

          (3C)  The amalgamated organisation must comply with a direction of the Industrial Registrar under subsection (3B).

             (4)  If the Commission is not satisfied that the outline complies with subsection (3), the Commission 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 the Commission 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 the Commission allows.

             (3)  The Commission 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 the Commission 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 the Commission; or

                     (b)  within such later time as the Commission allows.

             (3)  The Commission 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.

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 the Commission allows, include matter that is not in the form of words, including, for example, diagrams, drawings, illustrations, photographs and symbols.

             (2)  The Commission 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 the Commission.

99  Notifying of applications for ballots

             (1)  If an application is made under section 94, the Industrial Registrar must immediately notify the AEC of the application.

             (2)  On being notified of the application, the AEC must immediately take such action as it considers necessary or desirable to enable it to conduct, as quickly as possible, any ballot that may be required as a result of the application.

100  Orders for ballots

             (1)  The Commission 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 the Commission 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, the Commission 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 the Commission 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 in the Industrial Registry, as soon as practicable but no later than the day before the first day of voting in the relevant election.

             (3)  A person must not, in a declaration for the purposes of subsection (1), make a statement if the person knows, or is reckless as to whether, the statement is false or misleading.

Note:          This subsection is a civil penalty provision (see section 305).

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 Industrial Registrar; 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 Industrial Registrar; 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 the Commission, as prescribed, for an inquiry by the Commission into alleged irregularities in relation to the ballot.

             (2)  If the Commission finds that there has been an irregularity that may affect, or may have affected, the result of the ballot, the Commission 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 Commission into alleged irregularities in relation to ballots under this Part, and for matters relating to, or arising out of, inquiries.

108A  Powers of the Commission to be exercised by President or Full Bench

                   The powers of the Commission 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 3Giving 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 Industrial Registrar 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, a Registrar 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 the Commission, awards etc. made before withdrawal

             (1)  This section applies to an order of the Commission, an award or a collective agreement that was, immediately before the day the registration takes effect, binding on 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 collective agreement:

                     (a)  becomes binding on 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  Collective agreements made after withdrawal

             (1)  This section applies to a collective agreement that:

                     (a)  is made on or after the day the registration takes effect; and

                     (b)  is binding on 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 becomes binding on the amalgamated organisation, it also:

                     (a)  becomes binding on 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 Industrial Registrar 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 Workplace Relations 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 4Validation

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 5Miscellaneous

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 4Representation orders

Part 1Simplified outline

  

132  Simplified outline

This Chapter enables the Commission to make orders, in the context of demarcation disputes, about the representation rights of organisations of employees.

The Commission must take certain factors into account before making a representation order (see section 135).


 

Part 2Representation orders

  

133  Orders about representation rights of organisations of employees

             (1)  Subject to this Chapter and subsection 151(6), the Commission may, on the application of an organisation, an employer or the Minister, make the following orders in relation to a demarcation dispute:

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

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

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

Note:          Section 151 deals with agreements between organisations of employees and State unions.

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

134  Preconditions for making of orders

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

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

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

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

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

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

                             (ii)  are imminent;

                            as a result of such conduct or threatened conduct.

135  Factors to be taken into account by Commission

                   In considering whether to make an order under section 133, the Commission must have regard to the wishes of the employees who are affected by the dispute and, where the Commission considers it appropriate, is also to have regard to:

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

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

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

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

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.

138  Exercise of Commission’s powers under this Chapter

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

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 registered under this Schedule, was a State-registered association or a transitionally registered association.

             (2)  Without limiting subsection (1), the regulations may specify the weight that the Commission is to give, in making an order in relation to the rights of such an organisation to represent the interests under this Schedule or the Workplace Relations Act of a particular class or group of employees, to a State demarcation order.


 

Chapter 5Rules of organisations

Part 1Simplified outline of Chapter

  

139  Simplified outline

This Chapter sets out the requirements that organisations’ rules must comply with (see Part 2).

Part 3 sets out processes available to members who think that their organisation’s rules do not comply with this Chapter, or are not being followed.


 

Part 2Rules of organisations

Division 1General

140  Organisations to have rules

             (1)  An organisation must have rules that make provision as required by this Schedule.

             (2)  A rule of an organisation making provision required by this Schedule 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 the Commission 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 Schedule, the Workplace Relations Act, an award or a collective 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 an award, an order of the Commission or a collective agreement; or

                             (ii)  entering into written agreements under an award, an order of the Commission or a collective 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 Schedule (see section 5) and the objects of this Schedule and the Workplace Relations 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 2Rules 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 in the Industrial Registry 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 Industrial Registrar 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 Schedule (other than subsection (1)), the Workplace Relations Act, awards or collective 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 Industrial Registrar 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 Industrial Registrar 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 Industrial Registrar may revoke an exemption granted to an organisation under subsection (3):

                     (a)  on application by the organisation, if the Industrial Registrar is satisfied that the rules of the organisation comply with subsection (1); or

                     (b)  if the Industrial Registrar 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 Industrial Registrar has given the organisation an opportunity, as prescribed, to show cause why the exemption should not be revoked.

             (7)  Where the Industrial Registrar revokes an exemption granted to an organisation on the ground specified in paragraph (6)(b), the Industrial Registrar 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 Industrial Registrar’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 147(1) of the Workplace Relations Act does not apply in relation to a decision of the Industrial Registrar to grant an exemption under subsection (3).

Note:          Subsection 147(1) of the Workplace Relations Act provides for appeals from certain decisions of the Industrial Registrar.

           (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 Schedule (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 3Rules 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 4Other rules

Subdivision ALoans, 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 BAgreements 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 Schedule nor part of an organisation registered under this Schedule;

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 in the Industrial Registry.

Note:          This subsection is a civil penalty provision (see section 305).

             (3)  The agreement does not come into force unless and until the Industrial Registrar enters particulars of the agreement in the register kept under paragraph 13(1)(a).

             (4)  The Industrial Registrar must not enter particulars of the agreement in that register unless he or she has been directed by the Commission to do so.

             (5)  The Commission must not give such a direction to the Industrial Registrar unless the Commission is satisfied that the agreement:

                     (a)  is not contrary to:

                            (ia)  Parliament’s intention in enacting this Schedule (see section 5); or

                              (i)  any object of this Schedule or the Workplace Relations Act; or

                             (ii)  any subsisting order made by the Commission relating to the organisation’s eligibility rules; or

                            (iii)  any subsisting agreement or understanding of which the Commission is aware that deals with the organisation’s entitlement to represent under this Schedule, or the Workplace Relations 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 Schedule, or the Workplace Relations 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 the Commission:

                     (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), the Commission 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, the Commission is satisfied that the agreement is no longer operating for such a purpose, the Commission may, by order, terminate the agreement.

           (10)  The Industrial Registrar 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 in the Industrial Registry a copy of the agreement to terminate; and

                     (b)  the Industrial Registrar 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 in the Industrial Registry.

Note:          This subsection is a civil penalty provision (see section 305).

             (4)  The agreement does not come into force unless and until the Industrial Registrar enters particulars of the agreement in the register kept under paragraph 13(1)(a).

             (5)  The Industrial Registrar must not enter particulars of the agreement in that register unless he or she has been directed by the Commission to do so.

             (6)  The Commission must not give such a direction to the Industrial Registrar unless the Commission is satisfied that the agreement:

                     (a)  is not contrary to Parliament’s intention in enacting this Schedule (see section 5) or any object of this Schedule or the Workplace Relations 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 Industrial Registrar 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 CMiscellaneous

155  Exercise of Commission’s powers under this Division

                   The powers of the Commission under this Division are exercisable only by a Presidential Member.


 

Division 5Alteration of rules and evidence of rules

156  Industrial Registrar may determine alterations of rules

             (1)  Where the rules of an organisation do not, in the Industrial Registrar’s opinion, make provision required by this Schedule, the Industrial Registrar 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 Industrial Registrar’s opinion, necessary to bring them into conformity with this Schedule.

             (2)  Alterations determined under subsection (1) take effect on the date of the instrument.

157  Commission 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;

the Commission may, by instrument, determine such alterations of the rules of the organisation as are, in the Commission’s opinion, necessary to remove the overlap.

             (2)  The Commission 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 the Commission consents to the change or alteration.

             (2)  The Commission may consent to a change or alteration in whole or part, but must not consent unless the Commission is satisfied that the change or alteration has been made under the rules of the organisation.

             (3)  The Commission must not consent to a change in the name of an organisation unless the Commission 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)  The Commission 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 the Commission, 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 the Commission accepts an undertaking from the organisation seeking the alteration that the Commission 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)  The Commission 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 Schedule and the Workplace Relations Act the industrial interests of a particular class or group of persons.

             (7)  The Commission 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 the Commission under section 133 about the right of the organisation to represent under this Schedule and the Workplace Relations 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 the Commission may refuse to consent to an alteration of the eligibility rules of an organisation.

             (9)  Where the Commission 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 the Commission 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.

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 in the Industrial Registry and a Registrar has certified that, in his or her opinion, the alteration:

                     (a)  complies with, and is not contrary to, this Schedule, the Workplace Relations Act, awards and collective 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 in the Industrial Registry, a Registrar 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 Industrial Registrar 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 Schedule, the Industrial Registrar 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 Industrial Registrar, amend the certificate accordingly and return it to the organisation.

161  Evidence of rules

                   In proceedings under this Schedule or the Workplace Relations Act, a copy of the rules of an organisation certified by a Registrar to be a true and correct copy is evidence of the rules of the organisation.

162  Powers of Commission

                   The powers of the Commission under this Division are exercisable only by a Presidential Member.


 

Part 3Validity 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—a Presidential Member of the Commission; or

                     (b)  in relation to the other rules of an organisation—the Industrial Registrar.

           (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 of this Schedule.

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 6Membership of organisations

Part 1Simplified outline of Chapter

  

165  Simplified outline

This Chapter sets out rules about membership of organisations. It covers entitlement to membership, circumstances in which a person may cease to be a member, recovery of money from members by organisations, and conscientious objection to membership.

This Chapter also gives the Federal Court a role in deciding a person’s membership status.


 

Part 2Entitlement to membership

  

166  Entitlement to become and to remain a member

Employee organisations

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

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

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

Note 1:       Rules of an organisation must provide for the circumstances in which a person ceases to be a member of an organisation (see subparagraph 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 award or order of the Commission, an employer who is eligible to become a member of an organisation of employers is entitled, subject to payment of any amount properly payable in relation to membership:

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

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

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

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

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

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

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

This section overrides inconsistent rules

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

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 Schedule or the Workplace Relations Act, order such rectifications of the register of members of an organisation as it considers necessary.


 

Part 3Termination 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.

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:

                    &nb