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Fair Work (Registered Organisations) Act 2009
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Attorney-General's Department
Department of Employment and Workplace Relations
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C2013C00106
01 January 2013
-
11 April 2013
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Chapter 1—Preliminary
1 Short title
2 Commencement
5 Parliament’s intention in enacting this Act
5A Act binds Crown
5B Schedule 1 has effect
5C Schedule 2 has effect
6 Definitions
9 Meaning of office
9A Meaning of federal counterpart
10 Forging and uttering
11 Actions and opinions of AEC
12 Membership of organisations
13 Functions of the FWC
15 Disapplication of Part 2.5 of Criminal Code
16 Operation of offence provisions
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Chapter 2—Registration and cancellation of registration
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Part 1—Simplified outline of Chapter
17 Simplified outline
Part 2—Registration
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Division 1—Types of associations that may apply for registration
18 Employer and employee associations may apply
18A Federally registrable employer associations
18B Federally registrable employee associations
18C Federally registrable enterprise associations
18D Constitutional validity
Division 2—Registration criteria
19 Criteria for registration of associations other than enterprise associations
20 Criteria for registration of enterprise associations
Division 3—Prohibited conduct in relation to formation or registration of employee associations
21 Prohibited conduct—employers
22 Prohibited conduct—organisations
23 Powers of Federal Court in relation to prohibited conduct
24 Certain actions considered to be done by organisation or employer
Division 4—Registration process
25 Applicant for registration may change its name or alter its rules
26 Registration
26A Validation of registration
27 Incorporation
Part 3—Cancellation of registration
28 Application for cancellation of registration
29 Orders where cancellation of registration deferred
30 Cancellation of registration on technical grounds etc.
31 Cancellation to be recorded
32 Consequences of cancellation of registration
Part 4—FWC’s powers under this Chapter
33 Powers exercisable by President, a Vice President or a Deputy President
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Chapter 3—Amalgamation and withdrawal from amalgamation
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Part 1—Simplified outline of Chapter
34 Simplified outline
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Part 2—Amalgamation of organisations
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Division 1—General
35 Definitions
36 Procedure to be followed for proposed amalgamation etc.
37 Exercise of the FWC’s powers under this Part
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Division 2—Preliminary matters
38 Federations
39 Use of resources to support proposed amalgamation
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Division 3—Commencement of amalgamation procedure
40 Scheme for amalgamation
41 Alternative scheme for amalgamation
42 Approval by committee of management
43 Community of interest declaration
44 Application for approval for submission of amalgamation to ballot
45 Holding office after amalgamation
46 Application for exemption from ballot
47 Application for ballot not conducted under section 65
48 Lodging “yes” case
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Division 4—Role of AEC
49 Ballots to be conducted by AEC
50 Notification of AEC
51 Providing information etc. to electoral officials
52 Declaration by secretary etc. of organisation
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Division 5—Procedure for approval of amalgamation
53 Fixing hearing in relation to amalgamation etc.
54 Submissions at amalgamation hearings
55 Approval for submission to ballot of amalgamation not involving extension of eligibility rules etc.
56 Objections in relation to amalgamation involving extension of eligibility rules etc.
57 Approval for submission to ballot of amalgamation involving extension of eligibility rules etc.
58 Fixing commencing and closing days of ballot
59 Roll of voters for ballot
60 “Yes” case and “no” case for amalgamation
61 Alteration and amendment of scheme
62 Outline of scheme for amalgamation
63 Exemption from ballot
64 Approval for ballot not conducted under section 65
65 Secret postal ballot of members
66 Determination of approval of amalgamation by members
67 Further ballot if amalgamation not approved
68 Post ballot report by AEC
69 Inquiries into irregularities
70 Approval of amalgamation
71 Expenses of ballot
72 Offences in relation to ballot
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Division 6—Amalgamation taking effect
73 Action to be taken after ballot
74 Assets and liabilities of de registered organisation become assets and liabilities of amalgamated organisation
75 Resignation from membership
76 Effect of amalgamation on modern awards, orders and enterprise agreements
77 Effect of amalgamation on agreement under section 151
78 Instruments
79 Pending proceedings
80 Division applies despite laws and agreements prohibiting transfer etc.
81 Amalgamated organisation to take steps necessary to carry out amalgamation
82 Certificates in relation to land and interests in land
83 Certificates in relation to charges
84 Certificates in relation to shares etc.
85 Certificates in relation to other assets
86 Other matters
87 Federal Court may resolve difficulties
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Division 7—Validation
88 Validation of certain acts done in good faith
89 Validation of certain acts after 4 years
90 Orders affecting application of section 88 or 89
91 Federal Court may make orders in relation to consequences of invalidity
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Part 3—Withdrawal from amalgamations
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Division 1—General
92 Object of Part
93 Definitions etc.
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Division 2—Ballots for withdrawal from amalgamated organisations
94 Applications to the FWC for ballots
95 Outline of proposed withdrawal
96 Filing the “yes” case
97 Filing the “no” case
98 Provisions relating to outlines and statements of “yes” and “no” cases
99 Notifying of applications for ballots
100 Orders for ballots
101 Financial members only eligible to vote
102 Conduct of ballots
103 Providing information etc. to electoral officials
104 Declaration by secretary etc. of organisation
105 Offences in relation to ballots
106 Certificate showing particulars of the ballot
107 Post ballot report by AEC
108 Inquiries into irregularities
108A Powers of the FWC to be exercised by President or Full Bench
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Division 3—Giving effect to ballots
109 Determining the day of withdrawal
110 Registration of constituent part
111 Choice of organisation following withdrawal of separately identifiable constituent part
112 Members of amalgamated organisation may join newly registered organisation
113 Orders of the FWC, modern awards etc. made before withdrawal
113A Enterprise agreements made after withdrawal
114 Effect of withdrawal on agreement under section 151
115 Instruments
116 Pending proceedings
117 Division applies despite laws and agreements prohibiting transfer etc.
118 Amalgamated organisation, constituent part and newly registered organisation to take necessary steps
119 Certificates in relation to land and interests in land
120 Certificates in relation to charges
121 Certificates in relation to shares etc.
122 Certificates in relation to other assets
123 Holding office after withdrawal
124 Other matters
125 Federal Court may resolve difficulties
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Division 4—Validation
126 Validation of certain acts done in good faith
127 Validation of certain acts after 4 years
128 Orders affecting application of section 126 or 127
129 Federal Court may make orders in relation to consequences of invalidity
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Division 5—Miscellaneous
130 Certain actions etc. not to constitute breach of rules of amalgamated organisation
131 Amalgamated organisation not to penalise members etc.
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Chapter 4—Representation orders
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Part 1—Simplified outline
132 Simplified outline
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Part 2—Representation orders
133 Orders about representation rights of organisations of employees
134 Preconditions for making of orders
135 Factors to be taken into account by the FWC
136 Order may be subject to limits
137 Organisation must comply with order
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Part 3—Representation orders for workplace groups
137A Orders about representation rights of organisations of employees
137B Factors to be taken into account by the FWC
137C Submissions by peak councils
137D Order may be subject to limits
137E Organisation must comply with order
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Part 4—Miscellaneous
137F FWC may make orders reflecting State representation orders
138 Exercise of the FWC’s powers under this Chapter
138A Representation rights of former State registered associations
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Chapter 5—Rules of organisations
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Part 1—Simplified outline of Chapter
139 Simplified outline
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Part 2—Rules of organisations
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Division 1—General
140 Organisations to have rules
141 Rules of organisations
142 General requirements for rules
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Division 2—Rules relating to elections for office
143 Rules to provide for elections for offices
144 Rules to provide for elections for office by secret postal ballot
145 Rules to provide for terms of office
146 Rules may provide for filling of casual vacancies
147 Model rules for conduct of elections
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Division 3—Rules relating to conduct of officers and employees
148 Model rules about conduct of officers and employees
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Division 4—Other rules
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Subdivision A—Loans, grants and donations
149 Rules to provide conditions for loans, grants and donations by organisations
Subdivision B—Agreements between organisations and State unions
150 Definitions
151 Membership agreements
152 Assets and liabilities agreements
153 Party to section 152 agreement may apply to Federal Court for orders
154 Termination of section 152 agreement
Subdivision BA—Branches of organisations
154A Branch autonomy
154B Branch funds
Subdivision BB—Approved training
154C Approved training
Subdivision C—Miscellaneous
155 Exercise of the FWC’s powers under this Division
Division 5—Alteration of rules and evidence of rules
156 General Manager may determine alterations of rules
157 FWC may determine alteration of rules where there has been a breach of an undertaking
158 Change of name or alteration of eligibility rules of organisation
158A Alteration of eligibility rules of organisation by General Manager
159 Alteration of other rules of organisation
160 Certain alterations of rules to be recorded
161 Evidence of rules
162 Powers of the FWC
Part 3—Validity and performance of rules etc
163 Rules contravening section 142
164 Directions for performance of rules
164A Directions to rectify breach of rule of organisation
164B Orders under sections 164 and 164A
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Chapter 6—Membership of organisations
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Part 1—Simplified outline of Chapter
165 Simplified outline
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Part 2—Entitlement to membership
166 Entitlement to become and to remain a member
167 Federal Court may declare on person’s entitlement to membership
168 Application for membership of organisation by person treated as having been a member
169 Request by member for statement of membership
170 Rectification of register of members
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Part 3—Termination of membership
171 Federal Court may order that persons cease to be members of organisations
171A Cessation of membership if member is not an employee etc.
172 Non financial members to be removed from the register
173 No entrance fee if person re joins within 6 months
174 Resignation from membership
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Part 4—False information, disputes and arrears of dues
175 False representation as to membership of organisation
176 False representation about resignation from organisation
177 Disputes between organisations and members
178 Recovery of arrears
179 Liability for arrears
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Part 5—Conscientious objection to membership
180 Conscientious objection to membership of organisations
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Chapter 7—Democratic control
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Part 1—Simplified outline of Chapter
181 Simplified outline
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Part 2—Conduct of elections for office and other positions
182 Conduct by AEC
183 Application for organisation or branch to conduct its elections for office
184 Objections to application to conduct elections for office
185 Threats etc. in relation to section 184 objections
186 General Manager may permit organisation or branch to conduct its elections for office
187 Organisation may ask AEC to conduct elections for positions other than offices
188 Declaration envelopes etc. to be used for postal ballots
189 General Manager to arrange for conduct of elections
190 Organisation or branch must not assist one candidate over another
191 Organisation to provide returning officer with copy of register
192 Declaration by secretary etc. of organisation
193 Provisions applicable to elections conducted by AEC
194 Hindering or obstructing electoral official or other person
195 Improper interference with election process
196 Death of candidate
197 Post election report by AEC
198 Organisation to respond to adverse report on rules
199 Ballot papers etc. to be preserved
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Part 3—Inquiries into elections for office
200 Application for inquiry
201 Instituting of inquiry
202 Federal Court may authorise General Manager to take certain action
203 Identity cards
204 Interim orders
205 Procedure at hearing
206 Action by Federal Court
207 General Manager to make arrangements for conduct of elections etc.
208 Enforcement of orders
209 Validity of certain acts etc. where election declared void
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Part 4—Disqualification from office
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Division 1—Simplified outline of Part
210 Simplified outline
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Division 2—Persons who have been convicted of a prescribed offence
211 Simplified outline of Division
212 Meaning of prescribed offence
213 Meaning of convicted of a prescribed offence
213A Meaning of exclusion period and reduced exclusion period
214 Certificate of registrar etc. is evidence of facts
215 Certain persons disqualified from holding office in organisations
216 Application for leave to hold office in organisations by prospective candidate for office
217 Application for leave to hold office in organisations by office holder
218 Federal Court to have regard to certain matters
219 Action by Federal Court
220 Part not to affect spent convictions scheme
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Chapter 8—Records and accounts
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Part 1—Simplified outline of Chapter
229 Simplified outline
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Part 2—Records to be kept and lodged by organisations
230 Records to be kept and lodged by organisations
231 Certain records to be held for 7 years
232 Offence to interfere with register or copy
233 Obligation to lodge information with the FWC
234 Storage of records
235 General Manager may authorise access to certain records
236 General Manager may direct organisation to deliver copy of records
237 Organisations to notify particulars of loans, grants and donations
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Part 3—Accounts and audit
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Division 1—Preliminary
238 Simplified outline
239 Part only applies to financial years starting after registration
240 Financial years—change in financial year
241 Exemptions from certain Australian Accounting Standards
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Division 2—Reporting units
242 What is a reporting unit?
243 Designated officers
244 Members, staff and journals etc. of reporting units
245 Determination of reporting units
246 Determination of reporting units—application by organisation
247 Determination of reporting units—General Manager initiative
248 Determination of reporting units—years certificate applies to
249 Determination of reporting units—revocation of certificates
250 Determination of reporting units—rule alterations
251 Determination of reporting units—later certificate revokes earlier certificate
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Division 3—Accounting obligations
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Subdivision A—General obligations
252 Reporting unit to keep proper financial records
253 Reporting unit to prepare general purpose financial report
254 Reporting unit to prepare operating report
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Subdivision B—Reporting guidelines
255 Reporting guidelines
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Division 4—Auditors
256 Auditors of reporting units
257 Powers and duties of auditors
258 Obstruction etc. of auditors
259 Reporting unit to forward notices etc. to auditor
260 Auditor entitled to attend meetings at which report presented
261 Auditors and other persons to enjoy qualified privilege in certain circumstances
262 Fees and expenses of auditors
263 Removal of auditor
264 Resignation of auditor
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Division 5—Reporting requirements
265 Copies of full report or concise report to be provided to members
266 Full report to be presented to meetings
267 Comments by committee members not to be false or misleading
268 Reports etc. to be lodged with the FWC
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Division 6—Reduced reporting requirements for particular reporting units
269 Reporting units with substantial common membership with State registered bodies
270 Organisations with income of less than certain amount
271 Exemption from this Part of certain reporting units
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Division 7—Members’ access to financial records
272 Information to be provided to members or General Manager
273 Order for inspection of financial records
274 Frivolous or vexatious applications
275 Ancillary orders
276 Disclosure of information acquired in inspection
277 Reporting unit or committee of management may allow member to inspect books
278 FWC to be advised of breaches of Part or rules etc. found during inspection
279 Constitution of the FWC
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Part 4—Access to organisations’ books
280 Right of access to organisation’s books
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Chapter 9—Conduct of officers and employees
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Part 1—Simplified outline of Chapter
281 Simplified outline
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Part 2—General duties in relation to the financial management of organisations
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Division 1—Preliminary
282 Simplified outline
283 Part only applies in relation to financial management
284 Meaning of involved
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Division 2—General duties in relation to the financial management of organisations
285 Care and diligence—civil obligation only
286 Good faith—civil obligations
287 Use of position—civil obligations
288 Use of information—civil obligations
289 Effect of ratification by members
290 Compliance with statutory duties
291 Interaction of sections 285 to 289 with other laws etc.
292 Reliance on information or advice provided by others
293 Responsibility for actions of other person
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Part 3—General duties in relation to orders and directions
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Division 1—Preliminary
294 Simplified outline
295 Meaning of involved
296 Application to officers and employees of branches
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Division 2—General duties in relation to orders and directions
297 Order or direction applying to organisation—civil obligation
298 Prohibition order or direction applying to organisation—civil obligation
299 Order or direction applying to officer—civil obligation
300 Prohibition order or direction applying to officer—civil obligation
301 Order or direction applying to employee—civil obligation
302 Prohibition order or direction applying to employee—civil obligation
303 Order or direction applying to member of organisation—civil obligation
303A Application of this Division
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Chapter 10—Civil penalties
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Part 1—Simplified outline of Chapter
304 Simplified outline
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Part 2—Civil consequences of contravening civil penalty provisions
305 Civil penalty provisions
306 Pecuniary penalty orders that the Federal Court may make
307 Compensation orders
308 Other orders
309 Effect of section 307
310 Who may apply for an order
311 Civil proceedings after criminal proceedings
312 Criminal proceedings during civil proceedings
313 Criminal proceedings after civil proceedings
314 Evidence given in proceedings for penalty not admissible in criminal proceedings
315 Relief from liability for contravention of civil penalty provision
316 Power to grant relief
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Chapter 11—Miscellaneous
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Part 1—Simplified outline of Chapter
317 Simplified outline
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Part 2—Validating provisions for organisations
318 Definition
319 Validation of certain acts done in good faith
320 Validation of certain acts after 4 years
321 Order affecting application of section 319 or 320
322 Federal Court may make orders in relation to consequences of invalidity
323 Federal Court may order reconstitution of branch etc.
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Part 3—Financial assistance and costs
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Division 1—Financial assistance
324 Authorisation of financial assistance
325 Federal Court may certify that application was reasonable
326 Applications under sections 163, 164, 164A and 167
327 Fees for 2 counsel not normally to be paid
328 Powers of Federal Court not affected
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Division 2—Costs
329 Costs only where proceeding instituted vexatiously etc.
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Part 4—Inquiries and investigations
330 General Manager may make inquiries
331 General Manager may conduct investigations
332 Investigations arising from auditor’s report
333 Investigations arising from request from members
334 Investigations arising from referral under section 278
335 Conduct of investigations—general power to require information etc.
335A Conduct of investigations—additional power to require information etc.
335B Investigations to be completed as soon as practicable
335C Disclosure of information acquired during an investigation
336 Action following an investigation
337 Offences in relation to investigation by General Manager
337AA Additional power to require information etc.—civil penalty provisions
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Part 4A—Protection for whistleblowers
337A Disclosures qualifying for protection under this Part
337B Disclosure that qualifies for protection not actionable etc.
337C Victimisation prohibited
337D Right to compensation
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Part 4B—Functions and powers of the FWC
337F Powers of inspection
337G Parties to proceedings
337H Kinds of orders
337J Relief not limited to claim
337K Publishing orders
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Part 5—Jurisdiction of the Federal Court of Australia
338 Conferring jurisdiction on the Federal Court
339 Exclusive jurisdiction
339A Exercising jurisdiction in the Fair Work Division of the Federal Court
340 Exercise of Court’s original jurisdiction
341 Reference of proceedings to Full Court
342 Appeal to the Court from certain judgments
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Part 6—Other
343 Delegation by Minister
343A Delegation by General Manager
344 Conduct by officers, directors, employees or agents
345 Right to participate in ballots
346 Requests by members for information concerning elections and certain ballots
347 Providing copy of rules or list of offices etc. on request by member
348 Certificate as to membership of organisation
349 List of officers to be evidence
350 Unauthorised collection of money
351 No imprisonment in default
351A Minister’s entitlement to intervene
352 Jurisdiction of courts limited as to area
353 Public sector employer to act through employing authority
353A Representation in proceedings in the Fair Work Division of the Federal Court and Federal Magistrates Court
354 Proceedings by and against unincorporated clubs
355 Inspection of documents etc.
356 Trade secrets etc. tendered as evidence
357 Application of penalty
358 Enforcement of penalties etc.
359 Regulations
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Part 7—Complementary registration systems
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Division 1—Application of this Part
360 Complementary registration systems
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Division 2—Preliminary
361 Definitions
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Division 3—Branch rules
362 Branch funds
363 Obligations of the FWC in relation to application under section 158
364 Branch autonomy
365 Organisation may participate in State systems
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Division 4—Amalgamation of organisation and associated body
366 Organisation and associated body may amalgamate
367 Procedure for amalgamation
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Division 5—Exercise of the FWC’s powers
368 Exercise of the FWC’s powers under this Part
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Schedule 1—Transitionally recognised associations
1 Definitions
2 Application for transitional recognition
3 Application of the Fair Work Act to transitionally recognised associations
4 Representation rights of transitionally recognised associations of employees
5 Cancellation of transitional recognition
6 End of transitional recognition
7 Modification of this Act
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Schedule 2—Recognised State registered associations
1 Recognition of State registered associations
2 Application of Fair Work Act to recognised State registered associations
3 Cancellation of recognition
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Endnotes
Endnote 1—Legislation history
Endnote 2—Amendment history
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Endnote 3—Application, saving and transitional provisions
Workplace Relations and Other Legislation Amendment Act 1996 (No. 60, 1996)
Workplace Relations and Other Legislation Amendment Act 1997 (No. 198, 1997)
Human Rights Legislation Amendment Act (No. 1) 1999 (No. 133, 1999)
Australian Federal Police Legislation Amendment Act 2000 (No. 9, 2000)
Timor Gap Treaty (Transitional Arrangements) Act 2000 (No. 25, 2000)
Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (No. 137, 2000)
Workplace Relations Amendment (Termination of Employment) Act 2001 (No. 100, 2001)
Employment, Workplace Relations and Small Business Legislation Amendment (Application of Criminal Code) Act 2001 (No. 142, 2001)
Abolition of Compulsory Age Retirement (Statutory Officeholders) Act 2001 (No. 159, 2001)
Workplace Relations Legislation Amendment (Registration and Accountability of Organisations) (Consequential Provisions) Act 2002 (No. 105, 2002)
Workplace Relations Amendment (Genuine Bargaining) Act 2002 (No. 123, 2002)
Workplace Relations Legislation Amendment Act 2002 (No. 127, 2002)
Workplace Relations Amendment (Prohibition of Compulsory Union Fees) Act 2003 (No. 20, 2003)
Workplace Relations Amendment (Protection for Emergency Management Volunteers) Act 2003 (No. 76, 2003)
Workplace Relations Amendment (Fair Termination) Act 2003 (No. 104, 2003)
Workplace Relations Amendment (Improved Protection for Victorian Workers) Act 2003 (No. 137, 2003)
Law and Justice Legislation Amendment Act 2004 (No. 62, 2004)
Workplace Relations Amendment (Codifying Contempt Offences) Act 2004 (No. 112, 2004)
Workplace Relations Amendment (Agreement Validation) Act 2004 (No. 155, 2004)
Financial Framework Legislation Amendment Act 2005 (No. 8, 2005)
Workplace Relations Legislation Amendment (Independent Contractors) Act 2006 (No. 163, 2006)
Workplace Relations Amendment (A Stronger Safety Net) Act 2007 (No. 107, 2007)
Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 (No. 8, 2008)
Acts Interpretation Amendment Act 2011 (No. 46, 2011)
Fair Work (Registered Organisations) Amendment Act 2012 (No. 93, 2012)
Fair Work Amendment Act 2012 (No. 174, 2012)
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Endnote 4—Uncommenced amendments
Fair Work (Registered Organisations) Amendment Act 2012 (No. 93, 2012)
Fair Work Amendment Act 2012 (No. 174, 2012)
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Endnote 5—Misdescribed amendments
Fair Work Amendment Act 2012 (No. 174, 2012)
Endnote 6—Modifications
Endnote 7—Renumbering tables
Endnote 8—Repeal tables