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Fair Work (Registered Organisations) Act 2009

Authoritative Version
Act No. 86 of 1988 as amended, taking into account amendments up to Building and Construction Industry (Consequential and Transitional Provisions) Act 2016
An Act relating to registered organisations, and for other purposes
Administered by: Attorney-General's; Employment
Registered 11 May 2017
Start Date 02 May 2017

Fair Work (Registered Organisations) Act 2009

No. 86, 1988

Compilation No. 80

Compilation date:                              2 May 2017

Includes amendments up to:            Act No. 88, 2016

Registered:                                         11 May 2017

 

 

 

 

 

 

 

 

 

This compilation includes commenced amendments made by Act No. 79, 2016

 

About this compilation

This compilation

This is a compilation of the Fair Work (Registered Organisations) Act 2009 that shows the text of the law as amended and in force on 2 May 2017 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

  

  

  


Contents

Chapter 1—Preliminary                                                                                         1

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 1

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

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

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

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

6............ Definitions.......................................................................................... 3

7............ Relationships..................................................................................... 15

9............ Meaning of office.............................................................................. 15

9A......... Meaning of federal counterpart........................................................ 17

9B......... Meaning of related party.................................................................. 17

10.......... Forging and uttering.......................................................................... 19

11.......... Actions and opinions of AEC........................................................... 20

12.......... Membership of organisations............................................................ 20

13.......... Additional function of the FWC........................................................ 20

15.......... Disapplication of Part 2.5 of Criminal Code..................................... 20

Chapter 2—Registration and cancellation of registration 22

Part 1—Simplified outline of Chapter                                                                    22

17.......... Simplified outline.............................................................................. 22

Part 2—Registration                                                                                                           23

Division 1—Types of associations that may apply for registration   23

18.......... Employer and employee associations may apply............................... 23

18A....... Federally registrable employer associations...................................... 23

18B....... Federally registrable employee associations...................................... 24

18C....... Federally registrable enterprise associations...................................... 25

18D....... Constitutional validity....................................................................... 27

Division 2—Registration criteria                                                                         30

19.......... Criteria for registration of associations other than enterprise associations                30

20.......... Criteria for registration of enterprise associations............................. 32

Division 3—Prohibited conduct in relation to formation or registration of employee associations       34

21.......... Prohibited conduct—employers........................................................ 34

22.......... Prohibited conduct—organisations................................................... 35

23.......... Powers of Federal Court in relation to prohibited conduct................ 36

24.......... Certain actions considered to be done by organisation or employer.. 36

Division 4—Registration process                                                                         38

25.......... Applicant for registration may change its name or alter its rules....... 38

26.......... Registration....................................................................................... 38

26A....... Validation of registration................................................................... 39

27.......... Incorporation..................................................................................... 39

Part 3—Cancellation of registration                                                                         41

28.......... Application for cancellation of registration........................................ 41

29.......... Orders where cancellation of registration deferred............................ 44

30.......... Cancellation of registration on technical grounds etc......................... 45

31.......... Cancellation to be recorded............................................................... 47

32.......... Consequences of cancellation of registration..................................... 47

Part 4—FWC’s powers under this Chapter                                                        49

33.......... Powers exercisable by President, a Vice President or a Deputy President               49

Chapter 3—Amalgamation and withdrawal from amalgamation               50

Part 1—Simplified outline of Chapter                                                                    50

34.......... Simplified outline.............................................................................. 50

Part 2—Amalgamation of organisations                                                                51

Division 1—General                                                                                                    51

35.......... Definitions........................................................................................ 51

36.......... Procedure to be followed for proposed amalgamation etc................. 54

37.......... Exercise of the FWC’s powers under this Part................................. 55

Division 2—Preliminary matters                                                                          56

38.......... Federations........................................................................................ 56

39.......... Use of resources to support proposed amalgamation........................ 57

Division 3—Commencement of amalgamation procedure                     59

40.......... Scheme for amalgamation................................................................. 59

41.......... Alternative scheme for amalgamation................................................ 59

42.......... Approval by committee of management............................................ 60

43.......... Community of interest declaration..................................................... 61

44.......... Application for approval for submission of amalgamation to ballot.. 63

45.......... Holding office after amalgamation.................................................... 64

46.......... Application for exemption from ballot.............................................. 65

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

48.......... Lodging “yes” case........................................................................... 66

Division 4—Role of AEC                                                                                          67

49.......... Ballots to be conducted by AEC....................................................... 67

50.......... Notification of AEC.......................................................................... 67

51.......... Providing information etc. to electoral officials................................. 67

52.......... Declaration by secretary etc. of organisation..................................... 69

Division 5—Procedure for approval of amalgamation                            70

53.......... Fixing hearing in relation to amalgamation etc.................................. 70

54.......... Submissions at amalgamation hearings............................................. 70

55.......... Approval for submission to ballot of amalgamation not involving extension of eligibility rules etc.        71

56.......... Objections in relation to amalgamation involving extension of eligibility rules etc.  73

57.......... Approval for submission to ballot of amalgamation involving extension of eligibility rules etc.              74

58.......... Fixing commencing and closing days of ballot................................. 77

59.......... Roll of voters for ballot..................................................................... 77

60.......... “Yes” case and “no” case for amalgamation...................................... 78

61.......... Alteration and amendment of scheme................................................ 80

62.......... Outline of scheme for amalgamation................................................. 82

63.......... Exemption from ballot....................................................................... 82

64.......... Approval for ballot not conducted under section 65.......................... 83

65.......... Secret postal ballot of members......................................................... 84

66.......... Determination of approval of amalgamation by members................. 85

67.......... Further ballot if amalgamation not approved..................................... 86

68.......... Post‑ballot report by AEC................................................................. 86

69.......... Inquiries into irregularities................................................................ 87

70.......... Approval of amalgamation................................................................ 88

71.......... Expenses of ballot............................................................................. 88

72.......... Offences in relation to ballot............................................................. 88

Division 6—Amalgamation taking effect                                                         91

73.......... Action to be taken after ballot............................................................ 91

74.......... Assets and liabilities of de‑registered organisation become assets and liabilities of amalgamated organisation        92

75.......... Resignation from membership.......................................................... 92

76.......... Effect of amalgamation on modern awards, orders and enterprise agreements         93

77.......... Effect of amalgamation on agreement under section 151................... 93

78.......... Instruments....................................................................................... 94

79.......... Pending proceedings......................................................................... 94

80.......... Division applies despite laws and agreements prohibiting transfer etc. 94

81.......... Amalgamated organisation to take steps necessary to carry out amalgamation         95

82.......... Certificates in relation to land and interests in land............................ 95

83.......... Certificates in relation to charges....................................................... 96

84.......... Certificates in relation to shares etc................................................... 97

85.......... Certificates in relation to other assets................................................ 97

86.......... Other matters..................................................................................... 98

87.......... Federal Court may resolve difficulties............................................... 98

Division 7—Validation                                                                                               99

88.......... Validation of certain acts done in good faith..................................... 99

89.......... Validation of certain acts after 4 years............................................. 100

90.......... Orders affecting application of section 88 or 89.............................. 100

91.......... Federal Court may make orders in relation to consequences of invalidity                101

Part 3—Withdrawal from amalgamations                                                         103

Division 1—General                                                                                                  103

92.......... Object of Part.................................................................................. 103

93.......... Definitions etc................................................................................. 103

Division 2—Ballots for withdrawal from amalgamated organisations  107

94.......... Applications to the FWC for ballots................................................ 107

95.......... Outline of proposed withdrawal...................................................... 108

96.......... Filing the “yes” case........................................................................ 109

97.......... Filing the “no” case......................................................................... 110

98.......... Provisions relating to outlines and statements of “yes” and “no” cases 110

99.......... Notifying of applications for ballots................................................ 110

100........ Orders for ballots............................................................................ 111

101........ Financial members only eligible to vote.......................................... 111

102........ Conduct of ballots........................................................................... 112

103........ Providing information etc. to electoral officials............................... 112

104........ Declaration by secretary etc. of organisation................................... 114

105........ Offences in relation to ballots.......................................................... 115

106........ Certificate showing particulars of the ballot.................................... 117

107........ Post‑ballot report by AEC............................................................... 118

108........ Inquiries into irregularities.............................................................. 118

108A..... Powers of the FWC to be exercised by President or Full Bench..... 119

Division 3—Giving effect to ballots                                                                  120

109........ Determining the day of withdrawal................................................. 120

110........ Registration of constituent part........................................................ 121

111........ Choice of organisation following withdrawal of separately identifiable constituent part          122

112........ Members of amalgamated organisation may join newly registered organisation      124

113........ Orders of the FWC, modern awards etc. made before withdrawal.. 124

113A..... Enterprise agreements made after withdrawal................................. 125

114........ Effect of withdrawal on agreement under section 151..................... 125

115........ Instruments..................................................................................... 126

116........ Pending proceedings....................................................................... 126

117........ Division applies despite laws and agreements prohibiting transfer etc. 126

118........ Amalgamated organisation, constituent part and newly registered organisation to take necessary steps   127

119........ Certificates in relation to land and interests in land.......................... 128

120........ Certificates in relation to charges..................................................... 128

121........ Certificates in relation to shares etc................................................. 129

122........ Certificates in relation to other assets.............................................. 129

123........ Holding office after withdrawal...................................................... 130

124........ Other matters................................................................................... 130

125........ Federal Court may resolve difficulties............................................. 131

Division 4—Validation                                                                                             132

126........ Validation of certain acts done in good faith................................... 132

127........ Validation of certain acts after 4 years............................................. 133

128........ Orders affecting application of section 126 or 127.......................... 133

129........ Federal Court may make orders in relation to consequences of invalidity                134

Division 5—Miscellaneous                                                                                     136

130........ Certain actions etc. not to constitute breach of rules of amalgamated organisation   136

131........ Amalgamated organisation not to penalise members etc.................. 137

Chapter 4—Representation orders                                                          139

Part 1—Simplified outline                                                                                             139

132........ Simplified outline............................................................................ 139

Part 2—Representation orders                                                                                  140

133........ Orders about representation rights of organisations of employees.. 140

134........ Preconditions for making of orders................................................. 140

135........ Factors to be taken into account by the FWC.................................. 141

136........ Order may be subject to limits......................................................... 141

137........ Organisation must comply with order............................................. 142

Part 3—Representation orders for workplace groups                                143

137A..... Orders about representation rights of organisations of employees.. 143

137B..... Factors to be taken into account by the FWC.................................. 144

137C..... Submissions by peak councils........................................................ 145

137D..... Order may be subject to limits......................................................... 146

137E...... Organisation must comply with order............................................. 146

Part 4—Miscellaneous                                                                                                     147

137F...... FWC may make orders reflecting State representation orders......... 147

138........ Exercise of the FWC’s powers under this Chapter......................... 147

138A..... Representation rights of former State‑registered associations......... 148

Chapter 5—Rules of organisations                                                         149

Part 1—Simplified outline of Chapter                                                                  149

139........ Simplified outline............................................................................ 149

Part 2—Rules of organisations                                                                                  150

Division 1—General                                                                                                  150

140........ Organisations to have rules............................................................. 150

141........ Rules of organisations..................................................................... 150

142........ General requirements for rules........................................................ 152

142A..... Model rules for policies relating to expenditure.............................. 153

Division 2—Rules relating to elections for office                                      154

143........ Rules to provide for elections for offices........................................ 154

144........ Rules to provide for elections for office by secret postal ballot....... 155

145........ Rules to provide for terms of office................................................ 157

146........ Rules may provide for filling of casual vacancies........................... 158

147........ Model rules for conduct of elections............................................... 159

Division 3—Rules relating to conduct of officers and employees     160

148........ Model rules about conduct of officers and employees.................... 160

Division 4—Other rules                                                                                           161

Subdivision A—Loans, grants and donations                                                 161

149........ Rules to provide conditions for loans, grants and donations by organisations         161

Subdivision B—Agreements between organisations and State unions      162

150........ Definitions...................................................................................... 162

151........ Membership agreements................................................................. 163

152........ Assets and liabilities agreements..................................................... 165

153........ Party to section 152 agreement may apply to Federal Court for orders 166

154........ Termination of section 152 agreement............................................. 167

Subdivision BA—Branches of organisations                                                  168

154A..... Branch autonomy............................................................................ 168

154B..... Branch funds................................................................................... 168

Subdivision BB—Approved training                                                                169

Subdivision C—Miscellaneous                                                                            169

155........ Exercise of the FWC’s powers under this Division........................ 169

Division 5—Alteration of rules and evidence of rules                             170

156........ General Manager may determine alterations of rules....................... 170

157........ FWC may determine alteration of rules where there has been a breach of an undertaking        170

158........ Change of name or alteration of eligibility rules of organisation..... 171

158A..... Alteration of eligibility rules of organisation by General Manager.. 173

159........ Alteration of other rules of organisation.......................................... 173

160........ Certain alterations of rules to be recorded....................................... 174

161........ Evidence of rules............................................................................. 175

162........ Powers of the FWC........................................................................ 175

Part 3—Validity and performance of rules etc                                                176

163........ Rules contravening section 142....................................................... 176

164........ Directions for performance of rules................................................ 178

164A..... Directions to rectify breach of rule of organisation......................... 179

164B..... Orders under sections 164 and 164A.............................................. 180

Chapter 6—Membership of organisations                                      182

Part 1—Simplified outline of Chapter                                                                  182

165........ Simplified outline............................................................................ 182

Part 2—Entitlement to membership                                                                       183

166........ Entitlement to become and to remain a member............................... 183

167........ Federal Court may declare on person’s entitlement to membership. 184

168........ Application for membership of organisation by person treated as having been a member        186

169........ Request by member for statement of membership........................... 187

170........ Rectification of register of members................................................ 188

Part 3—Termination of membership                                                                     189

171........ Federal Court may order that persons cease to be members of organisations           189

171A..... Cessation of membership if member is not an employee etc........... 189

172........ Non‑financial members to be removed from the register................. 189

173........ No entrance fee if person re‑joins within 6 months......................... 190

174........ Resignation from membership........................................................ 190

Part 4—False information, disputes and arrears of dues                          193

175........ False representation as to membership of organisation................... 193

176........ False representation about resignation from organisation................ 193

177........ Disputes between organisations and members................................ 193

178........ Recovery of arrears......................................................................... 194

179........ Liability for arrears.......................................................................... 194

Part 5—Conscientious objection to membership                                            195

180........ Conscientious objection to membership of organisations................ 195

Chapter 7—Democratic control                                                                  197

Part 1—Simplified outline of Chapter                                                                  197

181........ Simplified outline............................................................................ 197

Part 2—Conduct of elections for office and other positions                    198

182........ Conduct by AEC............................................................................. 198

183........ Application for organisation or branch to conduct its elections for office 198

184........ Objections to application to conduct elections for office................. 199

185........ Threats etc. in relation to section 184 objections............................. 199

186........ Commissioner may permit organisation or branch to conduct its elections for office               200

187........ Organisation may ask AEC to conduct elections for positions other than offices     201

188........ Declaration envelopes etc. to be used for postal ballots................... 201

189........ Commissioner to arrange for conduct of elections.......................... 202

190........ Organisation or branch must not assist one candidate over another 202

191........ Organisation to provide returning officer with copy of register...... 202

192........ Declaration by secretary etc. of organisation................................... 203

193........ Provisions applicable to elections conducted by AEC..................... 204

194........ Hindering or obstructing electoral official or other person.............. 205

195........ Improper interference with election process.................................... 206

196........ Death of candidate........................................................................... 208

197........ Post‑election report by AEC........................................................... 208

198........ Organisation to respond to adverse report on rules......................... 210

199........ Ballot papers etc. to be preserved.................................................... 212

Part 3—Inquiries into elections for office                                                           214

200........ Application for inquiry.................................................................... 214

201........ Instituting of inquiry....................................................................... 214

202........ Federal Court may authorise Commissioner to take certain action.. 215

203........ Identity cards................................................................................... 217

204........ Interim orders.................................................................................. 218

205........ Procedure at hearing........................................................................ 219

206........ Action by Federal Court.................................................................. 219

207........ Commissioner to make arrangements for conduct of elections etc.. 221

208........ Enforcement of orders..................................................................... 221

209........ Validity of certain acts etc. where election declared void................. 221

Part 4—Disqualification from office                                                                      223

Division 1—Simplified outline of Part                                                              223

210........ Simplified outline............................................................................ 223

Division 2—Persons who have been convicted of a prescribed offence 224

211........ Simplified outline of Division......................................................... 224

212........ Meaning of prescribed offence........................................................ 224

213........ Meaning of convicted of a prescribed offence................................. 224

213A..... Meaning of exclusion period and reduced exclusion period........... 225

214........ Certificate of registrar etc. is evidence of facts................................ 225

215........ Certain persons disqualified from holding office in organisations.. 226

216........ Application for leave to hold office in organisations by prospective candidate for office         228

217........ Application for leave to hold office in organisations by office holder 229

218........ Federal Court to have regard to certain matters............................... 230

219........ Action by Federal Court.................................................................. 230

220........ Part not to affect spent convictions scheme..................................... 231

Chapter 8—Records and accounts                                                          232

Part 1—Simplified outline of Chapter                                                                  232

229........ Simplified outline............................................................................ 232

Part 2—Records to be kept and lodged by organisations                         233

230........ Records to be kept and lodged by organisations............................. 233

231........ Certain records to be held for 7 years.............................................. 234

232........ Offence to interfere with register or copy........................................ 234

233........ Obligation to lodge information with the Commissioner................. 234

234........ Storage of records........................................................................... 235

235........ Commissioner may authorise access to certain records................... 236

236........ Commissioner may direct organisation to deliver copy of records.. 237

237........ Organisations to notify particulars of loans, grants and donations.. 238

Part 3—Accounts and audit                                                                                        240

Division 1—Preliminary                                                                                          240

238........ Simplified outline............................................................................ 240

239........ Part only applies to financial years starting after registration........... 240

240........ Financial years—change in financial year....................................... 241

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

Division 2—Reporting units                                                                                  242

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

243........ Designated officers......................................................................... 242

244........ Members, staff and journals etc. of reporting units......................... 243

245........ Determination of reporting units..................................................... 244

246........ Determination of reporting units—application by organisation....... 244

247........ Determination of reporting units—General Manager initiative........ 245

248........ Determination of reporting units—years certificate applies to......... 246

249........ Determination of reporting units—revocation of certificates........... 246

250........ Determination of reporting units—rule alterations.......................... 247

251........ Determination of reporting units—later certificate revokes earlier certificate            248

Division 3—Accounting obligations                                                                  249

Subdivision A—General obligations                                                                 249

252........ Reporting unit to keep proper financial records............................... 249

253........ Reporting unit to prepare general purpose financial report.............. 250

254........ Reporting unit to prepare operating report....................................... 251

Subdivision B—Reporting guidelines                                                               252

255........ Reporting guidelines....................................................................... 252

Division 4—Auditors                                                                                                 254

Subdivision A—Registration of auditors                                                         254

255A..... Applications may be made for registration as an auditor................. 254

255B..... Registration by Commissioner........................................................ 254

255C..... Circumstances in which a person meets educational etc. requirements 255

255D..... Commissioner must give an opportunity to be heard before refusal and written notice of decision          256

255E...... Refusal to grant an application for registration................................ 256

255F...... Commissioner must give certificate of registration.......................... 256

255G..... Cancellation and suspension of registration—general..................... 257

255H..... Cancellation and suspension of registration—person no longer a registered company auditor 258

255J...... Written notice to be given of cancellation or suspension of registration 258

255K..... Registered auditors to advise of material changes in circumstance etc. 259

255L...... Commissioner may request further information.............................. 259

255M.... Basis of registration........................................................................ 259

255N..... Regulations..................................................................................... 259

Subdivision B—Audits                                                                                          260

256........ Auditors of reporting units.............................................................. 260

256A..... Limited term to play significant role in audit of a reporting unit...... 262

257........ Powers and duties of auditors......................................................... 263

258........ Obstruction etc. of auditors............................................................. 265

259........ Reporting unit to forward notices etc. to auditor............................. 266

260........ Auditor entitled to attend meetings at which report presented......... 267

261........ Auditors and other persons to enjoy qualified privilege in certain circumstances     268

262........ Fees and expenses of auditors......................................................... 268

263........ Removal of auditor.......................................................................... 269

264........ Resignation of auditor..................................................................... 270

Division 5—Reporting requirements                                                                271

265........ Copies of full report or concise report to be provided to members.. 271

266........ Full report to be presented to meetings............................................ 273

267........ Comments by committee members not to be false or misleading.... 273

268........ Reports etc. to be lodged with the Commissioner........................... 274

Division 6—Reduced reporting requirements for particular reporting units    275

269........ Reporting units with substantial common membership with State registered bodies                275

270........ Organisations with income of less than certain amount................... 276

271........ Exemption from this Part of certain reporting units......................... 278

Division 7—Members’ access to financial records                                   279

272........ Information to be provided to members or Commissioner.............. 279

273........ Order for inspection of financial records......................................... 280

274........ Frivolous or vexatious applications................................................. 280

275........ Ancillary orders.............................................................................. 281

276........ Disclosure of information acquired in inspection............................ 281

277........ Reporting unit or committee of management may allow member to inspect books   282

278........ FWC to be advised of breaches of Part or rules etc. found during inspection          282

279........ Constitution of the FWC................................................................. 282

Part 4—Access to organisations’ books                                                                283

280........ Right of access to organisation’s books.......................................... 283

Chapter 9—Conduct of officers and employees                       285

Part 1—Simplified outline of Chapter                                                                  285

281........ Simplified outline............................................................................ 285

Part 2—General duties in relation to the financial management of organisations             286

Division 1—Preliminary                                                                                          286

282........ Simplified outline............................................................................ 286

283........ Part only applies in relation to financial management...................... 286

284........ Meaning of involved........................................................................ 286

Division 2—General duties in relation to the financial management of organisations  287

285........ Care and diligence—civil obligation only........................................ 287

286........ Good faith—civil obligations.......................................................... 288

287........ Use of position—civil obligations................................................... 288

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

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

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

290A..... Good faith, use of position and use of information—criminal offences 290

291........ Interaction of sections 285 to 289 and 290A with other laws etc.... 291

292........ Reliance on information or advice provided by others.................... 291

293........ Responsibility for actions of other person....................................... 292

Part 2A—Disclosure obligations                                                                               294

Division 1—Preliminary                                                                                          294

293A..... Simplified outline............................................................................ 294

Division 2—Disclosure obligations and restrictions on taking part in making decisions             295

293B..... Disclosure of remuneration paid to officers.................................... 295

293BA.. Immediate disclosure....................................................................... 296

293BB... Standing disclosure of remuneration............................................... 296

293BC... Disclosure of certain remuneration and benefits by organisations and branches      297

293C..... Disclosure of material personal interests of officers........................ 298

293D..... Officer may give members of committee of management standing notice about an interest      301

293E...... Interaction of section 293C and 293D with other laws................... 302

293F...... Restrictions on taking part in making decisions.............................. 303

293G..... Disclosure of payments made by an organisation or a branch......... 304

293H..... Section 293G—order for alternative disclosure arrangement.......... 306

Division 3—Officer and related party disclosure statements             309

293J...... Officer and related party disclosure statements............................... 309

Division 4—Training in relation to financial duties                                 311

293K..... Officers to undertake approved training.......................................... 311

293L...... Approved training........................................................................... 311

293M.... Commissioner may grant exemption from financial training........... 311

Part 3—General duties in relation to orders and directions                    313

Division 1—Preliminary                                                                                          313

294........ Simplified outline............................................................................ 313

295........ Meaning of involved........................................................................ 313

296........ Application to officers and employees of branches......................... 313

Division 2—General duties in relation to orders and directions       314

297........ Order or direction applying to organisation—civil obligation......... 314

298........ Prohibition order or direction applying to organisation—civil obligation 314

299........ Order or direction applying to officer—civil obligation.................. 315

300........ Prohibition order or direction applying to officer—civil obligation. 315

301........ Order or direction applying to employee—civil obligation.............. 316

302........ Prohibition order or direction applying to employee—civil obligation 317

303........ Order or direction applying to member of organisation—civil obligation 317

303A..... Application of this Division............................................................ 318

Chapter 10—Civil penalties                                                                            319

Part 1—Simplified outline of Chapter                                                                  319

304........ Simplified outline............................................................................ 319

Part 2—Civil consequences of contravening civil penalty provisions 320

305........ Civil penalty provisions.................................................................. 320

306........ Pecuniary penalty orders that the Federal Court may make............. 320

307........ Compensation orders...................................................................... 321

307A..... Disqualification orders.................................................................... 322

308........ Other orders.................................................................................... 322

309........ Effect of section 307....................................................................... 322

310........ Who may apply for an order........................................................... 323

311........ Civil proceedings after criminal proceedings................................... 323

312........ Criminal proceedings during civil proceedings............................... 324

313........ Criminal proceedings after civil proceedings................................... 324

314........ Evidence given in proceedings for penalty not admissible in criminal proceedings  324

315........ Relief from liability for contravention of civil penalty provision..... 325

316........ Power to grant relief........................................................................ 325

Chapter 11—Miscellaneous                                                                             327

Part 1—Simplified outline of Chapter                                                                  327

317........ Simplified outline............................................................................ 327

Part 2—Validating provisions for organisations                                             329

318........ Definition........................................................................................ 329

319........ Validation of certain acts done in good faith................................... 330

320........ Validation of certain acts after 4 years............................................. 332

321........ Order affecting application of section 319 or 320........................... 333

322........ Federal Court may make orders in relation to consequences of invalidity                334

323........ Federal Court may order reconstitution of branch etc...................... 335

Part 3—Financial assistance and costs                                                                  338

Division 1—Financial assistance                                                                         338

324........ Authorisation of financial assistance............................................... 338

325........ Federal Court may certify that application was reasonable.............. 340

326........ Applications under sections 163, 164, 164A and 167..................... 341

327........ Fees for 2 counsel not normally to be paid...................................... 342

328........ Powers of Federal Court not affected.............................................. 342

Division 2—Costs                                                                                                        343

329........ Costs only where proceeding instituted vexatiously etc.................. 343

Part 3A—Registered Organisations Commissioner and Registered Organisations Commission             344

Division 1—Establishment, functions and powers of Commissioner 344

329AA.. Establishment.................................................................................. 344

329AB.. Functions of the Commissioner...................................................... 344

329AC.. Powers of Commissioner................................................................ 344

Division 2—Terms and conditions of appointment of Commissioner 346

329BA.. Appointment................................................................................... 346

329BB... Term of appointment....................................................................... 346

329BC... Acting Commissioner..................................................................... 346

329BD.. Remuneration.................................................................................. 347

329BE... Leave of absence............................................................................. 347

329BF... Outside employment....................................................................... 347

329BG.. Disclosure of interests..................................................................... 347

329BH.. Other terms and conditions............................................................. 348

329BI.... Resignation..................................................................................... 348

329BJ.... Termination of appointment............................................................ 348

Division 3—Staff and consultants                                                                      350

329CA.. Staff................................................................................................ 350

329CB... Other persons assisting the Commissioner..................................... 350

329CC... Consultants..................................................................................... 350

Division 4—Establishment and function of the Registered Organisations Commission               351

329DA.. Establishment.................................................................................. 351

329DB.. Constitution of the Commission...................................................... 351

329DC.. Function of the Commission........................................................... 351

329DD.. Commission has privileges and immunities of the Crown.............. 351

Division 5—Registered Organisations Commission Special Account 352

329EA... Registered Organisations Commission Special Account................. 352

329EB... Credits to the Account..................................................................... 352

329EC... Purposes of the Account................................................................. 352

Division 6—Reporting requirements                                                                354

329FA... Directions from the Minister........................................................... 354

329FB... Minister may require reports........................................................... 354

329FC... Annual report.................................................................................. 354

Part 3B—Information sharing                                                                                   356

329G..... When information may be disclosed............................................... 356

Part 4—Inquiries and investigations                                                                      357

Division 1—Inquiries                                                                                                357

330........ Commissioner may make inquiries................................................. 357

Division 2—Investigations                                                                                     358

331........ Commissioner may conduct investigations..................................... 358

332........ Investigations arising from auditor’s report.................................... 358

333........ Investigations arising from request from members......................... 359

334........ Investigations arising from referral under section 278.................... 360

335........ Conduct of investigations................................................................ 360

335B..... Investigations to be completed as soon as practicable..................... 361

Division 3—Questioning on oath or affirmation                                        362

335C..... When this Division applies............................................................. 362

335D..... Requirements made of attendee....................................................... 362

335E...... Questioning to take place in private................................................. 362

335F...... Attendee’s lawyer........................................................................... 363

335G..... Record of statements....................................................................... 363

335H..... Copies given subject to conditions.................................................. 364

Division 4—Powers in relation to documents                                              365

335K..... Application for warrant to seize documents.................................... 365

335L...... Grant of warrant.............................................................................. 365

335M.... Execution of warrant....................................................................... 366

335N..... Powers in relation to documents produced or seized....................... 367

335P...... Powers if documents not produced................................................. 368

335Q..... Power to require person to identify property of an organisation..... 369

Division 5—Action following investigations                                                 370

336........ Action in relation to reporting units................................................. 370

Division 6—Offences                                                                                                 372

337........ Offences in relation to investigation by Commissioner................... 372

337AA.. Strict liability offences..................................................................... 373

337AB.. Obstructing person acting under this Part....................................... 374

337AC.. Concealing documents relevant to investigation.............................. 374

337AD.. Self‑incrimination............................................................................ 375

337AE... Legal professional privilege............................................................ 376

Division 7—Evidentiary use of certain material                                        378

337AF... Statements made on oath or affirmation during an investigation—proceedings against attendee              378

337AG.. Statements made on oath or affirmation during an investigation—other proceedings               379

337AH.. Weight of evidence admitted under section 337AG........................ 379

337AJ... Objection to admission of statements made on oath or affirmation during an investigation      380

337AK.. Copies of, or extracts from, certain documents............................... 381

337AL... Material otherwise admissible......................................................... 382

Division 8—Miscellaneous                                                                                     383

337AM. Evidence of authority...................................................................... 383

337AN.. Application of Evidence Act........................................................... 383

337AP... Allowances and expenses............................................................... 383

337AQ.. Compliance with Part...................................................................... 383

Part 4A—Protection for whistleblowers                                                              385

Division 1—Protected disclosures                                                                      385

337A..... Disclosures qualifying for protection under this Part...................... 385

Division 2—Protections                                                                                           387

337B..... Disclosure that qualifies for protection not actionable etc................ 387

337BA.. What constitutes taking a reprisal.................................................... 388

337BB... Civil remedies................................................................................. 388

337BC... Costs only if proceedings instituted vexatiously etc........................ 390

337BD.. Civil penalties.................................................................................. 391

337BE... Criminal offences............................................................................ 392

337BF... Interaction between civil remedies, civil penalties and criminal offences  393

337BG.. Protections have effect despite other Commonwealth laws............. 393

Division 3—Investigation of protected disclosures                                   395

337C..... Allocation of handling of disclosure............................................... 395

337CA.. Investigation of disclosure.............................................................. 395

337CB... Time limit for investigations under this Division............................ 396

337CC... Regulations in relation to allocation and investigation..................... 397

337CD.. Disclosure to enforcement agencies................................................ 397

337CE... Protection of witnesses etc.............................................................. 398

Division 4—Miscellaneous                                                                                     399

337D..... Reference to this Part...................................................................... 399

337DA.. Liability for acts and omissions....................................................... 399

337DB.. Concurrent operation of State and Territory laws............................ 399

337DC.. Law relating to legal professional privilege not affected.................. 399

337DD.. Other investigative powers etc. not affected.................................... 400

Part 4B—Functions and powers of the FWC                                                  401

337F...... Powers of inspection....................................................................... 401

337G..... Parties to proceedings..................................................................... 401

337H..... Kinds of orders............................................................................... 401

337J...... Relief not limited to claim................................................................ 402

337K..... Publishing orders............................................................................ 402

Part 5—Jurisdiction of the Federal Court of Australia                             404

338........ Conferring jurisdiction on the Federal Court................................... 404

339........ Exclusive jurisdiction...................................................................... 404

339A..... Exercising jurisdiction in the Fair Work Division of the Federal Court 404

340........ Exercise of Court’s original jurisdiction.......................................... 405

341........ Reference of proceedings to Full Court........................................... 406

342........ Appeal to the Court from certain judgments.................................... 407

Part 6—Other                                                                                                                       408

343........ Delegation by Minister.................................................................... 408

343A..... Delegation by General Manager...................................................... 408

343B..... Delegation by Commissioner.......................................................... 409

344........ Conduct by officers, directors, employees or agents....................... 410

345........ Right to participate in ballots........................................................... 411

346........ Requests by members for information concerning elections and certain ballots       411

347........ Providing copy of rules or list of offices etc. on request by member 412

348........ Certificate as to membership of organisation................................... 413

349........ List of officers to be evidence......................................................... 413

350........ Unauthorised collection of money................................................... 414

351........ No imprisonment in default............................................................. 414

351A..... Minister’s entitlement to intervene.................................................. 414

352........ Jurisdiction of courts limited as to area........................................... 415

353........ Public sector employer to act through employing authority............. 415

353A..... Representation in proceedings in the Fair Work Division of the Federal Court and Federal Circuit Court               416

354........ Proceedings by and against unincorporated clubs........................... 416

355........ Inspection of documents etc............................................................ 417

356........ Trade secrets etc. tendered as evidence............................................ 417

357........ Application of penalty..................................................................... 418

358........ Enforcement of penalties etc............................................................ 418

359........ Regulations..................................................................................... 419

Part 7—Complementary registration systems                                                  421

Division 1—Application of this Part                                                                 421

360........ Complementary registration systems............................................... 421

Division 2—Preliminary                                                                                          422

361........ Definitions...................................................................................... 422

Division 3—Branch rules                                                                                        423

362........ Branch funds................................................................................... 423

363........ Obligations of the FWC in relation to application under section 158 424

364........ Branch autonomy............................................................................ 424

365........ Organisation may participate in State systems................................. 425

Division 4—Amalgamation of organisation and associated body    426

366........ Organisation and associated body may amalgamate........................ 426

367........ Procedure for amalgamation............................................................ 426

Division 5—Exercise of the FWC’s powers                                                  429

368........ Exercise of the FWC’s powers under this Part............................... 429

Schedule 1—Transitionally recognised associations              430

1............ Definitions...................................................................................... 430

2............ Application for transitional recognition........................................... 431

3............ Application of the Fair Work Act to transitionally recognised associations              433

4............ Representation rights of transitionally recognised associations of employees          434

5............ Cancellation of transitional recognition........................................... 434

6............ End of transitional recognition........................................................ 438

7............ Modification of this Act.................................................................. 439

Schedule 2—Recognised State‑registered associations        440

1............ Recognition of State‑registered associations................................... 440

2............ Application of Fair Work Act to recognised State‑registered associations               441

3............ Cancellation of recognition.............................................................. 441

Endnotes                                                                                                                                  445

Endnote 1—About the endnotes                                                                          445

Endnote 2—Abbreviation key                                                                              447

Endnote 3—Legislation history                                                                           448

Endnote 4—Amendment history                                                                         467

Endnote 5—Miscellaneous                                                                                     567


An Act relating to registered organisations, and for other purposes

Chapter 1Preliminary

  

1  Short title

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

2  Commencement

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

5  Parliament’s intention in enacting this Act

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

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

             (3)  The standards set out in this Act:

                     (a)  ensure that employer and employee organisations registered under this Act are representative of and accountable to their members, and are able to operate effectively; and

                     (b)  encourage members to participate in the affairs of organisations to which they belong; and

                     (c)  encourage the efficient management of organisations and high standards of accountability of organisations to their members; and

                     (d)  provide for the democratic functioning and control of organisations; and

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

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

             (5)  Parliament recognises and respects the role of employer and employee organisations in facilitating the operation of the workplace relations system.

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

5A  Act binds Crown

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

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

5B  Schedule 1 has effect

                   Schedule 1 has effect.

Note:          Schedule 1 is about transitionally recognised associations.

5C  Schedule 2 has effect

                   Schedule 2 has effect.

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

6  Definitions

                   In this Act, unless the contrary intention appears:

AEC means the Australian Electoral Commission.

Note:          Section 11 is also relevant to this definition.

applies:

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

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

auditor, in relation to a reporting unit, means:

                     (a)  if an individual holds the position of auditor of the reporting unit under section 256—the individual; or

                     (b)  if a firm holds the position of auditor of the reporting unit under section 256—each person who is, from time to time, a member of the firm and a registered auditor; or

                     (c)  if a company holds the position of auditor of the reporting unit under section 256—each person who is, from time to time, a director, officer or employee of the company and a registered 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.

authorised official means any of the following:

                     (a)  the Commissioner;

                     (b)  the General Manager;

                     (c)  an FWC Member;

                     (d)  the Director, within the meaning of subsection 4(1) of the Fair Work (Building Industry) Act 2012;

                     (e)  the Fair Work Ombudsman (within the meaning of the Fair Work Act).

breach includes non‑observance.

child: without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

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

collective body means:

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

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

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

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

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

Commission means the Registered Organisations Commission established by section 329DA.

Commissioner means the Registered Organisations Commissioner holding office under Part 3A of Chapter 11.

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.

control has the same meaning as in the Corporations Act 2001.

covers:

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

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

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

de facto partner of a person has the meaning given by the Acts Interpretation Act 1901.

demarcation dispute includes:

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

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

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

Deputy President means a Deputy President of the FWC.

designated publication restriction has the same meaning as in the Public Interest Disclosure Act 2013.

detriment, in Part 4A of Chapter 11, has the meaning given by subsection 337BA(2).

directions contravention means a contravention of one of the following:

                     (a)  subsection 297(2) or (3);

                     (b)  subsection 298(2) or (3);

                     (c)  subsection 299(2) or (3);

                     (d)  subsection 300(2) or (3);

                     (e)  subsection 301(2) or (3);

                      (f)  subsection 302(2) or (3);

                     (g)  subsection 303(2).

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.

disclosable conduct means an act or omission that:

                     (a)  contravenes, or may contravene, a provision of this Act, the Fair Work Act or the Competition and Consumer Act 2010; or

                     (b)  constitutes, or may constitute, an offence against a law of the Commonwealth.

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

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

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

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

employer has its ordinary meaning, and includes:

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

                     (b)  an unincorporated club.

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

enterprise means:

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

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

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

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

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

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

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

entity has the same meaning as in Chapter 2E of the Corporations Act 2001.

evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

excluded auditor, in relation to a reporting unit, means:

                     (a)  an officer, former officer, employee or former 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, former officer, employee or former employee of the reporting unit or the organisation of which the reporting unit is a part; or

                     (c)  a relative of an officer, former officer, employee or former employee of the reporting unit or the organisation of which the reporting unit is a part; or

                     (d)  a liquidator in respect of property of the reporting unit or the organisation of which the reporting unit is a part; or

                     (e)  a person who owes more than $5,000 to the reporting unit or the organisation of which the reporting unit is a part; or

                      (f)  a person who would not be, or whom a reasonable person would consider would not be, capable of exercising objective and impartial judgement in relation to audits relating to the reporting unit, having regard to all the circumstances.

For the purposes of this definition, employee has the same meaning as in Part 3 of Chapter 8.

exempt public sector superannuation scheme has the same meaning as in the Superannuation Industry (Supervision) Act 1993.

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

Federal Circuit Court means the Federal Circuit Court of Australia.

federal counterpart has the meaning given by section 9A.

Federal Court means the Federal Court of Australia.

federally registrable:

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

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

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

federal system employee means:

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

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

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

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

                     (a)  a register;

                     (b)  any other record of information;

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

                     (d)  a document.

financial year, in relation to an organisation, means:

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

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

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

Full Bench has the same meaning as in the Fair Work Act.

FWC means the Fair Work Commission.

FWC Member has the same meaning as in the Fair Work Act, but does not include an Expert Panel Member (within the meaning of that Act).

General Manager means the General Manager of the FWC.

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

independent contractor is confined to a natural person.

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

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

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

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

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

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

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

                     (c)  a contravention of section 190.

lawyer has the meaning given by section 12 of the Fair Work Act.

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

non‑cash benefit means property or services in any form other than money, but does not include a computer, mobile phone or other electronic device that is used only or mainly for work purposes.

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).

officer and related party disclosure statement has the meaning given by subsection 293J(3).

one‑tier collegiate electoral system means a collegiate electoral system comprising only one stage after the first stage.

operating report means the report prepared under section 254.

organisation means an organisation registered under this Act.

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

parent: without limiting who is a parent of a person for the purposes of this Act, someone is the parent of a person if the person is his or her child because of the definition of child in this section.

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

plays a significant role has the meaning given by subsection 256A(4).

postal ballot means a ballot for the purposes of which:

                     (a)  a ballot paper, a declaration envelope, and another envelope in the form prescribed by the regulations, are sent by prepaid post to each person entitled to vote; and

                     (b)  facilities are provided for the return of the completed ballot paper by post by the voter without expense to the voter.

prescribed includes prescribed by procedural rules of the FWC made under section 609 of the Fair Work Act.

President means the President of the FWC.

proceeding means:

                     (a)  a proceeding in a court; or

                     (b)  a proceeding or hearing before, or an examination by or before, a tribunal;

whether the proceeding, hearing or examination is of a civil, administrative, criminal, disciplinary or other nature.

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

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

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

registered auditor means a person who is registered as an auditor under subsection 255B(2) or (3).

registered company auditor means a person registered as an auditor under Part 9.2 of the Corporations Act 2001.

related party has the meaning given by section 9B.

relative, in relation to a person, means:

                     (a)  a parent, step‑parent, child, stepchild, grandparent, grandchild, brother or sister of the person; or

                     (b)  the spouse of the first‑mentioned person.

remuneration:

                     (a)  includes pay, wages, salary, fees, allowances, leave, benefits or other entitlements; but

                     (b)  does not include a non‑cash benefit.

reporting guidelines mean the guidelines issued under section 255.

reporting unit has the meaning given by section 242.

serious contravention, in relation to a contravention of a civil penalty provision by an organisation, a branch of an organisation or a person who is, or was, an officer or employee of an organisation or a branch of an organisation, means a contravention that:

                     (a)  materially prejudices the interests of the organisation or branch, or the members of the organisation or branch; or

                     (b)  materially prejudices the ability of the organisation or branch to pay its creditors; or

                     (c)  is serious.

spouse of a person includes a de facto partner of the person.

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

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

State industrial authority means:

                     (a)  a board or court of conciliation or arbitration, or tribunal, body or persons, having authority under a State Act to exercise any power of conciliation or arbitration in relation to industrial disputes within the limits of the State; or

                     (b)  a special board constituted under a State Act relating to factories; or

                     (c)  any other State board, court, tribunal, body or official prescribed for the purposes of this definition.

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

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

stepchild: without limiting who is a stepchild of a person for the purposes of this Act, someone who is a child of a de facto partner of the person is the stepchild of the person if he or she would be the person’s stepchild except that the person is not legally married to the partner.

step‑parent: without limiting who is a step‑parent of a person for the purposes of this Act, someone who is a de facto partner of a parent of the person is the step‑parent of the person if he or she would be the person’s step‑parent except that he or she is not legally married to the person’s parent.

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

takes a reprisal has the meaning given by section 337BA.

this Act includes regulations made under this Act.

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

Vice President means a Vice President of the FWC.

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

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

                     (a)  for the same employer; or

                     (b)  at the same premises or workplace; or

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

7  Relationships

                   For the purposes of this Act, if one person is the child of another person because of the definition of child in section 6, relationships traced to or through that person are to be determined on the basis that the person is the child of the other person.

9  Meaning of office

             (1)  In this Act, office, in relation to an organisation or a branch of an organisation means:

                     (a)  an office of president, vice president, secretary or assistant secretary of the organisation or branch; or

                     (b)  the office of a voting member of a collective body of the organisation or branch, being a collective body that has power in relation to any of the following functions:

                              (i)  the management of the affairs of the organisation or branch;

                             (ii)  the determination of policy for the organisation or branch;

                            (iii)  the making, alteration or rescission of rules of the organisation or branch;

                            (iv)  the enforcement of rules of the organisation or branch, or the performance of functions in relation to the enforcement of such rules; or

                     (c)  an office the holder of which is, under the rules of the organisation or branch, entitled to participate directly in any of the functions referred to in subparagraphs (b)(i) and (iv), other than an office the holder of which participates only in accordance with directions given by a collective body or another person for the purpose of implementing:

                              (i)  existing policy of the organisation or branch; or

                             (ii)  decisions concerning the organisation or branch; or

                     (d)  an office the holder of which is, under the rules of the organisation or branch, entitled to participate directly in any of the functions referred to in subparagraphs (b)(ii) and (iii); or

                     (e)  the office of a person holding (whether as trustee or otherwise) property:

                              (i)  of the organisation or branch; or

                             (ii)  in which the organisation or branch has a beneficial interest.

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

9A  Meaning of federal counterpart

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

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

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

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

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

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

9B  Meaning of related party

Control

             (1)  An entity controlled by an organisation is a related party of the organisation, unless:

                     (a)  the entity is a branch, sub‑branch, division or subdivision of the organisation; or

                     (b)  the entity is an association of employers or employees registered under a State or Territory industrial law, and the organisation is a federal counterpart of the association.

Officers and their spouses

             (2)  The following persons are related parties of an organisation:

                     (a)  officers of the organisation;

                     (b)  spouses of the persons referred to in paragraph (a).

Relatives of officers and spouses

             (3)  Relatives of persons referred to in subsection (2) are related parties of the organisation.

Entities controlled by other related parties

             (4)  An entity controlled by a related party referred to in subsection (1), (2) or (3) is a related party of the organisation unless the entity is also controlled by the organisation.

Related party in previous 6 months

             (5)  An entity is a related party of an organisation at a particular time if the entity was a related party of the organisation of a kind referred to in subsection (1), (2), (3) or (4) at any time within the previous 6 months.

Entity has reasonable grounds to believe it will become related party in future

             (6)  An entity is a related party of an organisation at a particular time if the entity believes or has reasonable grounds to believe that it is likely to become a related party of the organisation of a kind referred to in subsection (1), (2), (3) or (4) at any time in the future.

Acting in concert with related party

             (7)  An entity is a related party of an organisation if the entity acts in concert with a related party of the organisation on the understanding that the related party will receive a financial benefit if the organisation gives the entity a financial benefit.

Application to branches of organisations

             (8)  This section applies in relation to a branch of an organisation as if references to an organisation were references to a branch of an organisation.

10  Forging and uttering

Forging

             (1)  For the purposes of this Act, a person is taken to have forged a document if the person:

                     (a)  makes a document which is false, knowing it to be false; or

                     (b)  without authority, alters a genuine document in a material particular;

with intent that:

                     (c)  the false or altered document may be used, acted on, or accepted, as genuine, to the prejudice of another person; or

                     (d)  another person may, in the belief that it is genuine, be induced to do or refrain from doing an act.

             (2)  For the purposes of this Act, if a person:

                     (a)  makes a document which is false, knowing it to be false; or

                     (b)  without authority, alters a genuine document in a material particular;

with intent that a computer, a machine or other device should respond to the false or altered document as if it were genuine:

                     (c)  to the prejudice of another person; or

                     (d)  with the result that another person would be induced to do or refrain from doing an act;

the first‑mentioned person is taken to have forged the document.

Uttering

             (3)  For the purposes of this Act, a person is taken to utter a forged document if the person:

                     (a)  uses or deals with it; or

                     (b)  attempts to use or deal with it; or

                     (c)  attempts to induce another person to use, deal with, act upon, or accept it.

11  Actions and opinions of AEC

             (1)  In this Act, a reference to a ballot or election being conducted, or a step in a ballot or election being taken, by the AEC is a reference to the ballot or election being conducted, or the step being taken, by:

                     (a)  an electoral official; or

                     (b)  a person authorised on behalf of the AEC to do so.

             (2)  In this Act, a reference to the opinion or other state of mind of the AEC, in relation to the exercise of a function, is a reference to the opinion or other state of mind of a person authorised to carry out the function on behalf of the AEC.

12  Membership of organisations

                   In this Act, unless the contrary intention appears, a reference to:

                     (a)  a person who is eligible to become a member of an organisation; or

                     (b)  a person who is eligible for membership of an organisation;

includes a reference to a person who is eligible merely because of an agreement made under rules of the organisation made under subsection 151(1).

13  Additional function of the FWC

             (1)  The functions of the FWC include keeping a register of organisations.

Note:          Other functions of the FWC are set out in section 576 of the Fair Work Act.

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

15  Disapplication of Part 2.5 of Criminal Code

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

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

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

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 FWC. It sets out the grounds and procedures for cancellation, and the consequences of cancellation (see Part 3).

Part 2Registration

Division 1Types of associations that may apply for registration

18  Employer and employee associations may apply

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

                     (a)  a federally registrable association of employers;

                     (b)  a federally registrable association of employees;

                     (c)  a federally registrable enterprise association.

18A  Federally registrable employer associations

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

                     (a)  it is a constitutional corporation; or

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

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

                     (a)  an employer;

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

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

                     (d)  an officer of the association.

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

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

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

18B  Federally registrable employee associations

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

                     (a)  it is a constitutional corporation; or

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

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

                     (a)  an employee;

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

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

                     (d)  an officer of the association.

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

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

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

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

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

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

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

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

18C  Federally registrable enterprise associations

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

             (2)  An enterprise association is federally registrable if:

                     (a)  it is a constitutional corporation; or

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                     (d)  an officer of the association.

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

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

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

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

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

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

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

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

18D  Constitutional validity

Associations of employers

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

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

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

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

                     (a)  federal system employers;

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

                     (c)  officers of the association;

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

Associations of employees

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

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

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

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

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

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

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

                     (a)  federal system employees;

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

                     (c)  officers of the association;

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

Enterprise associations

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

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

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

                     (c)  officers of the association;

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

Division 2Registration criteria

19  Criteria for registration of associations other than enterprise associations

             (1)  The FWC 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 FWC is satisfied that the association would conduct its affairs in a way that meets the obligations of an organisation under this Act and the Fair Work Act; and

                      (f)  the rules of the association make provision as required by this Act to be made by the rules of organisations; and

                     (g)  the association does not have the same name as that of an organisation or a name that is so similar to the name of an organisation as to be likely to cause confusion; and

                     (h)  a majority of the members present at a general meeting of the association, or an absolute majority of the committee of management of the association, have passed, under the rules of the association, a resolution in favour of registration of the association as an organisation; and

                      (i)  the registration of the association would further Parliament’s intention in enacting this Act (see section 5) and the object set out in section 3 of the Fair Work Act; and

                      (j)  subject to subsection (2), there is no organisation to which members of the association might belong or, if there is such an organisation, it is not an organisation:

                              (i)  to which the members of the association could more conveniently belong; and

                             (ii)  that would more effectively represent those members.

             (2)  If:

                     (a)  there is an organisation to which the members of the association might belong; and

                     (b)  the members of the association could more conveniently belong to the organisation; and

                     (c)  the organisation would more effectively represent those members than the association would;

the requirements of paragraph (1)(j) are taken to have been met if the FWC accepts an undertaking from the association that the FWC 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 FWC may take into account in considering, under subparagraph (1)(j)(ii), the effectiveness of the representation of an organisation or association, the FWC must take into account whether the representation would be consistent with Parliament’s intention in enacting this Act (see section 5) and the object set out in section 3 of the Fair Work Act.

             (4)  In applying paragraph (1)(e), the FWC must have regard to whether any recent conduct by the association or its members would have provided grounds for an application under section 28 had the association been registered when the conduct occurred.

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

20  Criteria for registration of enterprise associations

             (1)  The FWC 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 FWC is satisfied that the association would conduct its affairs in a way that meets the obligations of an organisation under this Act and the Fair Work Act; and

                     (e)  the rules of the association make provision as required by this Act to be made by the rules of organisations; and

                      (f)  the association does not have the same name as that of an organisation or a name that is so similar to the name of an organisation as to be likely to cause confusion; and

                     (g)  the FWC is satisfied that a majority of the persons eligible to be members of the association support its registration as an organisation; and

                     (h)  a majority of the members present at a general meeting of the association, or an absolute majority of the committee of management of the association, have passed, under the rules of the association, a resolution in favour of registration of the association as an organisation; and

                      (i)  the registration of the association would further Parliament’s intention in enacting this Act (see section 5) and the object set out in section 3 of the Fair Work Act.

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

Note:          The FWC 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 FWC 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 Act that relates to the formation or registration of an association referred to in paragraph 18(b) or (c); or

                     (b)  in connection with, or in preparation for, such an act or omission.

             (4)  The following are examples of acts or omissions to which subsection (3) applies:

                     (a)  making an application for registration of an employee association under paragraph 18(b) or (c);

                     (b)  supporting the registration of an employee association (for example, by supporting, or supporting the making of, an application for its registration);

                     (c)  participating, or encouraging a person to participate, in proceedings before the FWC in relation to such an application;

                     (d)  not participating, or encouraging a person not to participate, in such proceedings;

                     (e)  becoming a member, or encouraging a person to become a member, of an employee association.

22  Prohibited conduct—organisations

             (1)  An organisation, or an officer or member of an organisation, must not take, or threaten to take, industrial action whose aim, or one of whose aims, is to coerce a person to breach section 21.

             (2)  An organisation, or an officer or member of an organisation, must not, for a prohibited reason, or for reasons that include a prohibited reason, take or threaten to take, any action whose aim, or one of whose aims, is to prejudice a person in the person’s employment, or an independent contractor in the contractor’s engagement.

             (3)  Conduct referred to in subsection (2) is for a prohibited reason if it is carried out because the person has done, or has omitted to do, any act:

                     (a)  under this Act that relates to the formation or registration of an association referred to in paragraph 18(b) or (c); or

                     (b)  in connection with, or in preparation for, such an act or omission.

             (4)  The examples set out in subsection 21(4) are examples of acts or omissions to which subsection (3) of this section applies.

             (5)  An organisation, or an officer or member of an organisation, must not impose, or threaten to impose, a penalty, forfeiture or disability of any kind on a member of the organisation because the member concerned does or proposes to do, for a prohibited reason, an act or omission referred to in subsection 21(3).

23  Powers of Federal Court in relation to prohibited conduct

             (1)  The Federal Court may, if the Court considers it appropriate in all the circumstances, make one or more of the following orders in respect of conduct that contravenes section 21 or 22:

                     (a)  an order imposing on a person whose conduct contravenes that section a penalty of not more than:

                              (i)  in the case of a body corporate—100 penalty units; or

                             (ii)  in any other case—20 penalty units;

                     (b)  an order requiring the person not to carry out a threat made by the person, or not to make any further threat;

                     (c)  injunctions (including interim injunctions), and any other orders, that the Court considers necessary to stop the conduct or remedy its effects;

                     (d)  any other consequential orders.

             (2)  An application for an order under subsection (1) may be made by:

                     (a)  a person against whom the conduct is being, has been, or is threatened to be, taken; or

                     (b)  any other person prescribed by the regulations.

24  Certain actions considered to be done by organisation or employer

             (1)  For the purposes of this Division:

                     (a)  action done by one of the following bodies or persons is taken to have been done by an organisation:

                              (i)  the committee of management of the organisation;

                             (ii)  an officer or agent of the organisation acting in that capacity;

                            (iii)  a member or group of members of the organisation acting under the rules of the organisation;

                            (iv)  a member of the organisation, who performs the function of dealing with an employer on behalf of other members of the organisation, acting in that capacity; and

                     (b)  action done by an agent of an employer acting in that capacity is taken to have been done by the employer.

             (2)  Subparagraphs (1)(a)(iii) and (iv) and paragraph (1)(b) do not apply if:

                     (a)  in relation to subparagraphs (1)(a)(iii) and (iv):

                              (i)  a committee of management of the organisation; or

                             (ii)  a person authorised by the committee; or

                            (iii)  an officer of the organisation;

                            has taken reasonable steps to prevent the action; or

                     (b)  in relation to paragraph (1)(b), the employer has taken reasonable steps to prevent the action.

             (3)  In this section:

officer, in relation to an organisation, includes:

                     (a)  a delegate or other representative of the organisation; and

                     (b)  an employee of the organisation.

Division 4Registration process

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

             (1)  The FWC 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 FWC considers appropriate, to change its name or to alter its rules:

                     (a)  to enable it to comply with this Act; or

                     (b)  to remove a ground of objection taken by an objector under the regulations or by the FWC; or

                     (c)  to correct a formal error in its rules (for example, to remove an ambiguity, to correct spelling or grammar, or to correct an incorrect reference to an organisation or person).

Note:          Paragraph (a)—in order for an organisation to comply with this Act, its rules must not be contrary to the Fair Work Act (see paragraph 142(1)(a) of this Act).

             (2)  An association granted leave under subsection (1) may change its name, or alter its rules, even though the application for registration is pending.

             (3)  Rules of an association as altered in accordance with leave granted under subsection (1) are binding on the members of the association:

                     (a)  in spite of anything in the other rules of the association; and

                     (b)  subject to any further alterations lawfully made.

26  Registration

             (1)  When the FWC grants an application by an association for registration as an organisation, the General Manager must immediately enter, in the register kept under subsection 13(1), such particulars in relation to the association as are prescribed and the date of the entry.

             (2)  An association is to be taken to be registered under this Act when the General Manager enters the prescribed particulars in the register under subsection (1).

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

             (4)  The General Manager must issue to each organisation registered under this Act a certificate of registration in the prescribed form.

Note:          Certificates of registration issued under the Workplace Relations Act 1996 continue in force (see the Workplace Relations Legislation Amendment (Registration and Accountability of Organisations) (Consequential Provisions) Act 2002).

             (5)  The certificate is, until proof of cancellation, conclusive evidence of the registration of the organisation specified in the certificate.

             (6)  The General Manager may, as prescribed, issue to an organisation a copy of, or a certificate replacing, the certificate of registration issued under subsection (4) or that certificate as amended under section 160.

26A  Validation of registration

                   If:

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

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

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

27  Incorporation

                   An organisation:

                     (a)  is a body corporate; and

                     (b)  has perpetual succession; and

                     (c)  has power to purchase, take on lease, hold, sell, lease, mortgage, exchange and otherwise own, possess and deal with, any real or personal property; and

                     (d)  must have a common seal; and

                     (e)  may sue or be sued in its registered name.

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

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

                            has prevented or hindered the achievement of Parliament’s intention in enacting this Act (see section 5) or of an object of this Act or the Fair Work Act; or

                     (b)  the organisation, or a substantial number of the members of the organisation or of a section or class of members of the organisation, has engaged in industrial action (other than protected industrial action) that has prevented, hindered or interfered with:

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

                             (ii)  the provision of any public service by the Commonwealth or a State or Territory or an authority of the Commonwealth or a State or Territory; or

                     (c)  the organisation, or a substantial number of the members of the organisation or of a section or class of members of the organisation, has or have been, or is or are, engaged in industrial action (other than protected industrial action) that has had, is having or is likely to have a substantial adverse effect on the safety, health or welfare of the community or a part of the community; or

                     (d)  the organisation, or a substantial number of the members of the organisation or of a section or class of members of the organisation, has or have failed to comply with:

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

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

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

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

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

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

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

             (2)  An organisation in relation to which an application is made under subsection (1) or (1A) must be given an opportunity of being heard by the Court.

             (3)  If the Court:

                     (a)  finds that a ground for cancellation set out in the application has been established; and

                     (b)  does not consider that it would be unjust to do so having regard to the degree of gravity of the matters constituting the ground and the action (if any) that has been taken by or against the organisation in relation to the matters;

the Court must, subject to subsection (4) and section 29, cancel the registration of the organisation.

             (4)  If:

                     (a)  the Court finds that a ground for cancellation set out in the application has been established; and

                     (b)  that finding is made, wholly or mainly, because of the conduct of a particular section or class of members of the organisation;

the Court may, if it considers it just to do so, instead of cancelling the registration of the organisation under subsection (3), by order:

                     (c)  determine alterations of the eligibility rules of the organisation so as to exclude from eligibility for membership of the organisation persons belonging to the section or class; or

                     (d)  where persons belonging to the section or class are eligible for membership under an agreement of the kind referred to in section 151—declare that the persons are excluded from eligibility for membership in spite of anything in the agreement.

             (5)  If the Court cancels the registration of an organisation, the Court may direct that an application by the former organisation to be registered as an organisation is not to be dealt with under this Act before the end of a specified period.

             (6)  An alteration of rules determined by order under subsection (4) takes effect on the date of the order or on such other day as is specified in the order.

             (7)  A finding of fact in proceedings:

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

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

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

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

29  Orders where cancellation of registration deferred

             (1)  If the Federal Court finds that a ground of an application under subsection 28(1) or (1A) has been established, the Court may, if it considers it just to do so, instead of cancelling the registration of the organisation concerned under subsection 28(3) or making an order under subsection 28(4), exercise one or more of the powers set out in subsection (2) of this section.

             (2)  The powers that may be exercised by the Court, by order, under subsection (1) are as follows:

                     (a)  the power to suspend, to the extent specified in the order, any of the rights, privileges or capacities of the organisation or of all or any of its members, as such members, under this Act, the Fair Work Act or any other Act, under modern awards or orders made under this Act, the Fair Work Act or any other Act or under enterprise agreements;

                     (b)  the power to give directions as to the exercise of any rights, privileges or capacities that have been suspended;

                     (c)  the power to make provision restricting the use of the funds or property of the organisation or a branch of the organisation, and for the control of the funds or property for the purpose of ensuring observance of the restrictions.

             (3)  If the Court exercises a power set out in subsection (2), it must defer the determination of the question whether to cancel the registration of the organisation concerned until:

                     (a)  the orders made in the exercise of the power cease to be in force; or

                     (b)  on application by a party to the proceeding, the Court considers that it is just to determine the question, having regard to any evidence given relating to the observance or non‑observance of any order and to any other relevant circumstance;

whichever is earlier.

             (4)  An order made in the exercise of a power set out in subsection (2) has effect in spite of anything in the rules of the organisation concerned or a branch of the organisation.

             (5)  An order made in the exercise of a power set out in subsection (2):

                     (a)  may be revoked by the Court, by order, on application by a party to the proceeding concerned; and

                     (b)  unless sooner revoked, ceases to be in force:

                              (i)  6 months after it came into force; or

                             (ii)  such longer period after it came into force as is ordered by the Court on application by a party to the proceeding made while the order remains in force.

30  Cancellation of registration on technical grounds etc.

             (1)  The FWC 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 FWC 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 FWC’s own motion, if:

                              (i)  the FWC 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 FWC 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 FWC must give the organisation an opportunity to be heard.

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

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

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

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

31  Cancellation to be recorded

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

32  Consequences of cancellation of registration

                   The cancellation of the registration of an organisation under this Act has the following consequences:

                     (a)  the organisation ceases to be an organisation and a body corporate under this Act, but does not because of the cancellation cease to be an association;

                     (b)  the cancellation does not relieve the association or any of its members from any penalty or liability incurred by the organisation or its members before the cancellation;

                     (c)  from the cancellation, the association and its members are not entitled to the benefits of any modern award, order of the FWC or enterprise agreement that bound the organisation or its members;

                     (d)  the FWC may, on application by an organisation or person interested, make such order as the FWC 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 4FWC’s powers under this Chapter

  

33  Powers exercisable by President, a Vice President or a Deputy President

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

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 FWC 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 FWC 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 FWC may perform the act only in accordance with this Part.

             (3)  If any difficulty arises, or appears likely to arise, in the application of this Act for the purpose of implementing the scheme for a proposed amalgamation, the FWC may give directions and make orders to resolve the difficulty.

             (4)  Directions and orders under subsection (3):

                     (a)  have effect subject to any order of the Federal Court; and

                     (b)  have effect despite anything in:

                              (i)  the regulations, or the procedural rules of the FWC made under section 609 of the Fair Work Act; or

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

37  Exercise of the FWC’s powers under this Part

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

Division 2Preliminary matters

38  Federations

Application for recognition as federation

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

Registration of federation

             (4)  If the application is granted, the General Manager must enter in the register kept under subsection 13(1) such details in relation to the federation as are prescribed.

Representation rights of federation

             (5)  On registration, the federation may, subject to subsection (6) and the regulations, represent its constituent members for all of the purposes of this Act and the Fair Work Act.

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

Federation may vary its composition

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

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

                     (b)  releasing, with the approval of the FWC, an organisation from the federation.

When federation ceases to exist

             (8)  The federation ceases to exist:

                     (a)  on the day on which the amalgamation takes effect; or

                     (b)  if an application under section 44 is not lodged in relation to the amalgamation within the prescribed period—on the day after the end of the period; or

                     (c)  if it appears to a Full Bench, on an application by a prescribed person, that the industrial conduct of the federation, or an organisation belonging to the federation, is preventing or hindering the attainment of Parliament’s intention in enacting this Act (see section 5) or an object of this Act or the Fair Work Act—on the day the Full Bench so determines.

Federation does not limit representation rights of organisations

             (9)  Nothing in this section limits the right of an organisation belonging to a federation to represent itself or its members.

39  Use of resources to support proposed amalgamation

             (1)  An existing organisation concerned in a proposed amalgamation may, at any time before the closing day of the ballot for the amalgamation, use its financial and other resources in support of the proposed principal amalgamation and any proposed alternative amalgamation if:

                     (a)  the committee of management of the organisation has resolved that the organisation should so use its resources; and

                     (b)  the committee of management has given reasonable notice of its resolution to the members of the organisation.

             (2)  Subsection (1) does not limit by implication any power that the existing organisation has, apart from that subsection, to use its financial and other resources in support of, or otherwise in relation to, the amalgamation.

Division 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 with the FWC 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 FWC:

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

Pre‑conditions to making of declaration

             (5)  The FWC 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 FWC is satisfied that a substantial number of members of one of the organisations are:

                     (a)  eligible to become members of the other organisation or each of the other organisations; or

                     (b)  engaged in the same work or in aspects of the same or similar work as members of the other organisation or each of the other organisations; or

                     (c)  covered by the same modern awards as members of the other organisation or each of the other organisations; or

                     (d)  employed in the same or similar work by employers engaged in the same industry as members of the other organisation or each of the other organisations; or

                     (e)  engaged in work, or in industries, in relation to which there is a community of interest with members of the other organisation or each of the other organisations.

             (6)  The FWC 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 FWC is satisfied that a substantial number of members of one of the organisations are:

                     (a)  eligible to become members of the other organisation or each of the other organisations; or

                     (b)  engaged in the same industry or in aspects of the same industry or similar industries as members of the other organisation or each of the other organisations; or

                     (c)  covered by the same modern awards as members of the other organisation or each of the other organisations; or

                     (d)  engaged in industries in relation to which there is a community of interest with members of the other organisation or each of the other organisations.

             (7)  Subsections (5) and (6) do not limit by implication the circumstances in which the FWC 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 FWC may revoke a declaration under this section if the FWC 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 FWC revokes the declaration, it must:

                     (a)  give reasonable notice of its intention to revoke to each of the organisations that applied for the declaration; and

                     (b)  give each of those organisations an opportunity to be heard.

44  Application for approval for submission of amalgamation to ballot

             (1)  The existing organisations concerned in a proposed amalgamation, and any association proposed to be registered as an organisation under the amalgamation, must jointly lodge with the FWC an application for approval for the submission of the amalgamation to ballot.

             (2)  The application must be accompanied by:

                     (a)  a copy of the scheme for the amalgamation; and

                     (b)  a written outline of the scheme.

             (3)  Subject to section 62, the outline must, in no more than 3,000 words, provide sufficient information on the scheme to enable members of the existing organisations to make informed decisions in relation to the scheme.

45  Holding office after amalgamation

             (1)  The rules of:

                     (a)  an association proposed to be registered as an organisation that is the proposed amalgamated organisation under a proposed amalgamation; or

                     (b)  an existing organisation that is the proposed amalgamated organisation under a proposed amalgamation;

may, despite section 143, make provision in relation to:

                     (c)  the holding of office in the proposed amalgamated organisation by persons holding office in any of the proposed de‑registering organisations immediately before the amalgamation takes effect; and

                     (d)  in a case to which paragraph (b) applies—the continuation of the holding of office by persons holding office in the proposed amalgamated organisation immediately before the amalgamation takes effect;

but the rules may not permit an office to be held under paragraph (c) or (d) for longer than:

                     (e)  the period that equals the unexpired part of the term of the office held by the person immediately before the day on which the amalgamation takes effect; or

                      (f)  the period that ends 2 years after that day;

whichever ends last, without an ordinary election being held in relation to the office.

             (2)  Where:

                     (a)  a person holds an office in an organisation, being an office held under rules made under subsection (1); and

                     (b)  that organisation is involved in a proposed amalgamation;

the rules of the proposed amalgamated organisation must not permit the person to hold an office in the proposed amalgamated organisation after the amalgamation takes effect, without an ordinary election being held in relation to the office, for longer than the period that equals the unexpired part of the term of the office mentioned in paragraph (a) immediately before the day on which the amalgamation takes effect.

             (3)  The rules of an organisation that is the proposed amalgamated organisation under a proposed amalgamation must, subject to this section, make reasonable provision for the purpose of synchronising elections for offices in the organisation held under paragraph (1)(c) with elections for other offices in the organisation.

             (4)  Section 145 does not apply to an office held under rules made under subsection (1).

             (5)  Section 146 applies to an office held under rules made under paragraph (1)(c).

             (6)  In this section:

ordinary election means an election held under rules that comply with section 143.

46  Application for exemption from ballot

             (1)  The proposed amalgamated organisation under a proposed amalgamation may lodge with the FWC an application for exemption from the requirement that a ballot of its members be held in relation to the amalgamation.

             (2)  The application must be lodged with the application that is lodged under section 44 in relation to the amalgamation.

47  Application for ballot not conducted under section 65

             (1)  An existing organisation concerned in a proposed amalgamation may lodge with the FWC 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 General Manager must immediately notify the AEC of the application.

             (2)  On being notified of the application, the AEC must immediately take such action as it considers necessary or desirable to enable it to conduct as quickly as possible any ballots that may be required in relation to the amalgamation.

51  Providing information etc. to electoral officials

             (1)  An electoral official who is authorised, in writing, by the AEC for the purposes of a proposed amalgamation may, where it is reasonably necessary for the purposes of any ballot that may be required or is required in relation to the amalgamation, by written notice, require an officer or employee of the organisation concerned or a branch of the organisation concerned:

                     (a)  to give to the electoral official, within the period (being a period of not less than 7 days after the notice is given), and in the manner, specified in the notice, any information within the knowledge or in the possession of the person; and

                     (b)  to produce or make available to the electoral official, at a reasonable time (being a time not less than 7 days after the notice is given) and place specified in the notice, any documents:

                              (i)  in the custody or under the control of the person; or

                             (ii)  to which the person has access.

             (2)  An officer or employee of an organisation or branch of an organisation commits an offence if he or she fails to comply with a requirement made under subsection (1).

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).

Civil penalty:          100 penalty units.

             (2)  The declaration must be:

                     (a)  signed by the person making it; and

                     (b)  given to the returning officer, and lodged with the FWC, 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.

Civil penalty:          100 penalty units.

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 FWC:

                     (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 FWC 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 FWC is satisfied that:

                     (a)  the amalgamation does not involve the registration of an association as an organisation; and

                     (b)  a person who is not eligible for membership of an existing organisation concerned in the amalgamation would not be eligible for membership of the proposed amalgamated organisation immediately after the amalgamation takes effect; and

                     (c)  any proposed alteration of the name of an existing organisation concerned in the amalgamation will not result in the organisation having a name that is the same as the name of another organisation or is so similar to the name of another organisation as to be likely to cause confusion; and

                     (d)  any proposed alterations of the rules of an existing organisation comply with, and are not contrary to, this Act, the Fair Work Act, modern awards or enterprise agreements, and are not contrary to law; and

                     (e)  any proposed de‑registration of an existing organisation complies with this Act and is not otherwise contrary to law;

the FWC must approve the submission of the amalgamation to ballot.

Approval generally refused if conditions not satisfied

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

             (5)  If:

                     (a)  the FWC:

                              (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 FWC;

the FWC 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 FWC has apart from that subsection.

Powers of the FWC to adjourn proceeding

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

             (8)  Subsection (7) does not limit by implication the power of the FWC 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 FWC under this section.

             (2)  Objection may be made to the FWC in relation to the amalgamation only if the FWC 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 FWC 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 FWC:

                     (a)  finds that no duly made objection is justified; and

                     (b)  is satisfied that, so far as the amalgamation involves:

                              (i)  the registration of an association; or

                             (ii)  a change in the name of an organisation; or

                            (iii)  an alteration of the rules of an organisation; or

                            (iv)  the de‑registration of an organisation under this Part;

                            it complies with, and is not contrary to, this Act, the Fair Work Act, modern awards and enterprise agreements and is not otherwise contrary to law;

the FWC must approve the submission of the amalgamation to ballot.

Approval generally refused if conditions not satisfied

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

             (6)  If:

                     (a)  the FWC:

                              (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 FWC;

the FWC 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 FWC has apart from that subsection.

Powers of the FWC to adjourn proceeding

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

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

58  Fixing commencing and closing days of ballot

             (1)  If the FWC approves, under section 55 or 57, the submission of a proposed amalgamation to ballot, the FWC 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 FWC 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 FWC 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 FWC 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 FWC 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 FWC may permit the organisation to alter the statement.

Members of organisation may lodge “no” statement

             (2)  Not later than 7 days before the day fixed under section 53 for hearing submissions in relation to the amalgamation, members of the organisation (being members whose number is at least the required minimum number) may lodge with the FWC 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 FWC may permit a statement lodged under subsection (2) to be altered.

“Yes” and “no” statements to be sent to voters

             (4)  Subject to subsections (5), (6) and (7), a copy of the statements mentioned in subsections (1) and (2), or, if those statements have been altered or amended, those statements as altered or amended, must accompany the ballot paper sent to the persons entitled to vote at a ballot for the amalgamation.

2 or more “no” statements must be combined

             (5)  If 2 or more statements in opposition to the amalgamation are duly lodged with the FWC under subsection (2):

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

FWC may correct factual errors in statements

             (6)  The FWC may amend a statement mentioned in subsection (1) or (2) to correct factual errors or to ensure that the statement complies with this Act.

Statements may include photos etc. if the FWC approves

             (7)  A statement mentioned in subsection (1) or (2) may, if the FWC 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 FWC 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 the FWC if conditions breached

             (4)  If:

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

                     (b)  the conditions are breached;

the FWC 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 FWC 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 FWC approves, consist of more than 3,000 words.

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

             (3)  The FWC:

                     (a)  may, at any time before the commencing day of the ballot for the amalgamation, permit the existing organisations concerned in the amalgamation to alter the outline; and

                     (b)  may amend the outline to correct factual errors or otherwise to ensure that it complies with this Act.

63  Exemption from ballot

             (1)  If:

                     (a)  an application was lodged under section 46 for exemption from the requirement that a ballot be held in relation to a proposed amalgamation; and

                     (b)  the total number of members that could be admitted to membership of the proposed amalgamated organisation on, and because of, the amalgamation does not exceed 25% of the number of members of the applicant organisation on the day on which the application was lodged;

the FWC must, at the conclusion of the hearing arranged under section 53 in relation to the amalgamation, grant the exemption unless the FWC 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 FWC 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 FWC 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 FWC approves, under section 55 or 57, the submission of a proposed amalgamation to ballot, the AEC must, in relation to each of the existing organisations concerned in the amalgamation, conduct a secret postal ballot of the members of the organisation on the question whether they approve the proposed principal amalgamation.

Ballot at same time on proposed alternative amalgamation

             (2)  If the scheme for the amalgamation contains a proposed alternative provision, the AEC must also conduct, at the same time and in the same way as the ballot under subsection (1), a ballot of the members of each of the existing organisations on the question or questions whether, if the proposed principal amalgamation does not take place, they approve the proposed alternative amalgamation or each proposed alternative amalgamation.

Same ballot paper to be used for both ballots

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

Counting of votes in alternative amalgamation ballot

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

Copy of outline to be sent to voters

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

Conduct of ballot

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

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

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

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

Organisation may be exempt from requirements of this section

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

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

66  Determination of approval of amalgamation by members

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

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

                     (b)  in any other case:

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

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

67  Further ballot if amalgamation not approved

             (1)  If:

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

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

the existing organisations concerned in the amalgamation may jointly lodge with the FWC 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 FWC 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 FWC may give such directions and make such further orders as the FWC considers necessary or desirable.

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

68  Post‑ballot report by AEC

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

                     (a)  the Federal Court; and

                     (b)  the General Manager; and

                     (c)  each applicant under section 44.

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

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

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

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

this fact must be included in the report.

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

69  Inquiries into irregularities

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

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

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

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

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

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

70  Approval of amalgamation

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

             (2)  If:

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

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

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

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

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

71  Expenses of ballot

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

72  Offences in relation to ballot

Interference with ballot papers

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

                     (a)  impersonates another person with the intention of:

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

                             (ii)  casting a vote; or

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

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

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

                             (ii)  into the post; or

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

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

                      (f)  records more than one vote; or

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

                     (h)  provides a ballot paper without authority; or

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

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

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

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.

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.

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 FWC is satisfied that:

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

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

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

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

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

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

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

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

             (3)  On the amalgamation day:

                     (a)  if the proposed amalgamated organisation is not already registered—the General Manager must enter, in the register kept under subsection 13(1), 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 FWC 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 FWC 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 FWC determines that the organisation has not complied with the undertaking;

the FWC 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 FWC directs.

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

                   On and from the amalgamation day:

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

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

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

77  Effect of amalgamation on agreement under section 151

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

             (2)  The General Manager must enter in the register kept under subsection 13(1) 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 FWC:

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

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

80  Division applies despite laws and agreements prohibiting transfer etc.

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

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

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

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

                     (a)  is to be regarded as:

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

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

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

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

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

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

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

81  Amalgamated organisation to take steps necessary to carry out amalgamation

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

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

82  Certificates in relation to land and interests in land

                   Where:

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

                     (b)  a certificate that:

                              (i)  is signed by an authorised person; and

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

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

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

the officer with whom the certificate is lodged may:

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

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

83  Certificates in relation to charges

                   Where:

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

                     (b)  a certificate that:

                              (i)  is signed by an authorised person; and

                             (ii)  identifies the charge; and

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

                            is lodged with the Australian Securities and Investments Commission;

that Commission may:

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

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

84  Certificates in relation to shares etc.

                   Where:

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

                     (b)  a certificate that:

                              (i)  is signed by an authorised person; and

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

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

                            is delivered to the company;

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

85  Certificates in relation to other assets

                   Where:

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

                     (b)  a certificate that:

                              (i)  is signed by an authorised person; and

                             (ii)  identifies the asset; and

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

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

the person or authority may:

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

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

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

86  Other matters

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

87  Federal Court may resolve difficulties

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

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

Division 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 Act or the Workplace Relations Act 1996 as in force before the commencement of this Part) to be reconstituted and re‑registered; and

                     (b)  branches of organisations of that kind to be formed into organisations and registered;

in a way that is fair to the members of the organisations concerned and the creditors of those organisations.

93  Definitions etc.

             (1)  In this Part, unless the contrary intention appears:

amalgamated organisation, in relation to an amalgamation, means the organisation of which members of a de‑registered organisation became members under paragraph 73(3)(d) but does not include any such organisation that was subsequently de‑registered under Part 2.

asset has the same meaning as in Part 2.

authorised person, in relation to a completed withdrawal from amalgamation, means a person authorised by the rules or the committee of management of the newly registered organisation.

ballot means a ballot conducted under Division 2.

charge has the same meaning as in Part 2.

completed withdrawal from amalgamation means a proposed withdrawal from amalgamation that has taken effect.

constituent member, in relation to a constituent part of an amalgamated organisation, means:

                     (a)  in the case of a separately identifiable constituent part—a member of the amalgamated organisation who is included in that part; or

                     (b)  in any other case—a member of the amalgamated organisation who would be eligible for membership of the constituent part if:

                              (i)  the constituent part; or

                             (ii)  the organisation of which the constituent part was a branch;

                            as the case requires, were still registered as an organisation with the same rules as it had when it was de‑registered under Part 2.

constituent part, in relation to an amalgamated organisation, means:

                     (a)  a separately identifiable constituent part; or

                     (b)  a part of the membership of the amalgamated organisation that would have been eligible for membership of:

                              (i)  an organisation de‑registered under Part 2 in connection with the formation of the amalgamated organisation; or

                             (ii)  a State or Territory branch of such a de‑registered organisation;

                            if the de‑registration had not occurred.

debenture has the same meaning as in Part 2.

holder, in relation to a charge, has the same meaning as in Part 2.

instrument has the same meaning as in Part 2.

instrument to which this Part applies, in relation to a completed withdrawal from amalgamation, means an instrument that immediately before the withdrawal day is an instrument:

                     (a)  to which the amalgamated organisation from which a constituent part has withdrawn to form a newly registered organisation is a party; or

                     (b)  that was given to, by, or in favour of, the amalgamated organisation; or

                     (c)  in which a reference is made to the amalgamated organisation; or

                     (d)  under which any right or liability accrues or may accrue to the amalgamated organisation in relation to the constituent part of the organisation and its members.

interest has the same meaning as in Part 2.

invalidity has the same meaning as in Part 2.

irregularity includes a breach of the rules of an organisation, but in Division 4 does not include an irregularity in relation to a ballot.

liability has the same meaning as in Part 2.

newly registered organisation means an organisation registered under section 110.

proceeding to which this Part applies, in relation to a completed withdrawal from amalgamation, means a proceeding to which an amalgamated organisation was a party immediately before the withdrawal day.

proposed withdrawal from amalgamation means the proposed carrying out of arrangements in relation to an amalgamated organisation under which a separately identifiable constituent part of the organisation is to withdraw from the organisation.

separately identifiable constituent part, in relation to an amalgamated organisation, means:

                     (a)  if an organisation de‑registered under Part 2 in connection with the formation of the amalgamated organisation remains separately identifiable under the rules of the amalgamated organisation as a branch, division or part of that organisation—that branch, division or part; or

                     (b)  if a State or Territory branch of such a de‑registered organisation under its rules as in force immediately before its de‑registration remains separately identifiable under the rules of the amalgamated organisation as a branch, division or part of that organisation—that branch, division or part.

withdrawal day, in relation to a completed withdrawal from amalgamation, means the day fixed under paragraph 109(1)(a) in relation to the withdrawal from amalgamation.

             (2)  For the purposes of this Part, an organisation is taken to have been de‑registered under Part 2 in connection with the formation of an amalgamated organisation if the de‑registration occurred in connection with the formation of:

                     (a)  the amalgamated organisation; or

                     (b)  another organisation that was subsequently de‑registered under Part 2 in connection with the formation of:

                              (i)  the amalgamated organisation; or

                             (ii)  an organisation that, through one or more previous applications of this subsection, is taken to have been de‑registered under Part 2 in connection with the formation of the amalgamated organisation.

Division 2Ballots for withdrawal from amalgamated organisations

94  Applications to the FWC for ballots

             (1)  An application may be made to the FWC for a secret postal ballot to be held, to decide whether a constituent part of an amalgamated organisation should withdraw from the organisation, if:

                     (a)  the constituent part became part of the organisation as a result of an amalgamation under:

                              (i)  Division 7 of Part 15 of the Workplace Relations Act 1996 (as in force before the commencement of this Part) after 1 February 1991; or

                             (ii)  Part 2 of this Chapter; and

                     (b)  the amalgamation occurred no less than 2 years prior to the date of the application; and

                     (c)  the application is made before the period of 5 years after the amalgamation occurred has elapsed.

             (2)  However, an application cannot be made if:

                     (a)  during the last 12 months, the FWC 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 FWC allows, consist of more than 3,000 words.

             (3)  The outline must be a fair and accurate representation of the proposed withdrawal and must address any matters prescribed for the purposes of paragraph (1)(b) in a fair and accurate manner.

          (3A)  If the applicant has insufficient information to prepare an outline that complies with subsection (3), the applicant may request the General Manager or the Commissioner to:

                     (a)  give the applicant all information in the possession of the General Manager or the Commissioner, as the case requires, that may be relevant in the preparation of the outline; or

                     (b)  direct the amalgamated organisation to give the applicant all information in the possession of the organisation that may be relevant in the preparation of the outline.

          (3B)  The General Manager or the Commissioner may provide that information, or direct the amalgamated organisation to provide that information.

          (3C)  The amalgamated organisation must comply with a direction of the General Manager or the Commissioner under subsection (3B).

Civil penalty:          100 penalty units.

             (4)  If the FWC is not satisfied that the outline complies with subsection (3), the FWC 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 FWC 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 FWC allows.

             (3)  The FWC may order that the statement be amended, in accordance with the order, to correct factual errors or otherwise to ensure that it complies with this Act.

97  Filing the “no” case

             (1)  The amalgamated organisation may file with the FWC 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 FWC; or

                     (b)  within such later time as the FWC allows.

             (3)  The FWC may order that the statement be amended, in accordance with the order, to correct factual errors or otherwise to ensure that it complies with this Act.

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

             (1)  An outline under section 95 or a statement under section 96 or 97 may, if the FWC allows, include matter that is not in the form of words, including, for example, diagrams, drawings, illustrations, photographs and symbols.

             (2)  The FWC 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 FWC.

99  Notifying of applications for ballots

             (1)  If an application is made under section 94, the General Manager must immediately notify the AEC of the application.

             (2)  On being notified of the application, the AEC must immediately take such action as it considers necessary or desirable to enable it to conduct, as quickly as possible, any ballot that may be required as a result of the application.

100  Orders for ballots

             (1)  The FWC 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 FWC 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 FWC 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 FWC 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.

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).

Civil penalty:          100 penalty units.

             (2)  The declaration must be:

                     (a)  signed by the person making it; and

                     (b)  given to the returning officer, and lodged with the FWC, 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.

Civil penalty:          100 penalty units.

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.

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.

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.

Penalty:  30 penalty units.

106  Certificate showing particulars of the ballot

             (1)  Within 14 days after the closing day of a ballot, the electoral official conducting the ballot must prepare, date and sign a certificate showing, in relation to the ballot:

                     (a)  the total number of persons on the roll of voters; and

                     (b)  the total number of ballot papers issued; and

                     (c)  the total number of ballot papers received by the electoral official; and

                     (d)  the total number of votes in favour of the question set out on the ballot paper; and

                     (e)  the total number of votes not in favour of the question set out on the ballot paper; and

                      (f)  the total number of informal ballot papers.

             (2)  Immediately after signing a certificate referred to in subsection (1), the electoral official must give a copy of the certificate to:

                     (b)  the General Manager; and

                     (c)  if the applicant was a person mentioned in paragraph 94(3)(aa), (b), (c) or (d)—each applicant; and

                     (d)  the amalgamated organisation from which the constituent part withdrew or sought to withdraw.

             (3)  Immediately after signing a certificate referred to in subsection (1), the electoral official must make a copy of the certificate available in any way that it considers appropriate to each applicant under paragraph 94(3)(a).

107  Post‑ballot report by AEC

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

                     (b)  the General Manager; and

                     (c)  if the applicant was a person mentioned in paragraph 94(3)(aa), (b), (c) or (d)—each applicant; and

                     (d)  the amalgamated organisation from which the constituent part withdrew or sought to withdraw.

             (2)  After the completion of the ballot, the AEC must make a report on the conduct of the ballot available in any way that it considers appropriate to each applicant under paragraph 94(3)(a).

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

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

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

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

this fact must be included in the report.

108  Inquiries into irregularities

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

             (2)  If the FWC finds that there has been an irregularity that may affect, or may have affected, the result of the ballot, the FWC 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 FWC into alleged irregularities in relation to ballots under this Part, and for matters relating to, or arising out of, inquiries.

108A  Powers of the FWC to be exercised by President or Full Bench

                   The powers of the FWC 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 General Manager must, with effect from the day determined under paragraph 109(1)(a):

                     (a)  register the constituent part as an organisation in the register kept under subsection 13(1); and

                     (b)  enter in the register such other particulars in relation to the organisation as are prescribed.

111  Choice of organisation following withdrawal of separately identifiable constituent part

             (1)  This section applies in the case of a withdrawal from amalgamation under this Part by a separately identifiable constituent part of an amalgamated organisation.

             (2)  As soon as practicable after the constituent part is registered as an organisation under section 110, the General Manager must send a written statement in accordance with subsection (3) to each person who, immediately before that registration, was a constituent member of the constituent part.

             (3)  The statement must:

                     (a)  inform the person of the withdrawal from amalgamation of the constituent part; and

                     (b)  invite the person to give written notice, within a period of 28 days after being sent the statement (the notice period), to the amalgamated organisation or to the newly registered organisation that:

                              (i)  the person wants to remain a member of the amalgamated organisation; or

                             (ii)  the person wants to become a member of the newly registered organisation; and

                     (c)  explain the effect of responding, or failing to respond, to the invitation.

             (4)  As soon as practicable after the amalgamated organisation receives a notice under paragraph (3)(b), it must notify the newly registered organisation of the receipt.

             (5)  As soon as practicable after the newly registered organisation receives a notice under paragraph (3)(b), it must notify the amalgamated organisation of the receipt.

             (6)  If a person referred to in subsection (2) gives written notice in accordance with paragraph (3)(b), within the notice period, that he or she wants to become a member of the newly registered organisation, he or she:

                     (a)  ceases, by force of this subsection, to be a member of the amalgamated organisation with effect from the end of the day on which the notice is received by the amalgamated organisation or the newly registered organisation (as the case may be); and

                     (b)  becomes, by force of this subsection and without payment of entrance fee, a member of the newly registered organisation with effect from the day after the day referred to in paragraph (a).

             (7)  If a person referred to in subsection (2) gives written notice in accordance with paragraph (3)(b), within the notice period, that he or she wants to remain a member of the amalgamated organisation, he or she remains a member of the amalgamated organisation.

          (7A)  If a person referred to in subsection (2) fails to give written notice in accordance with paragraph (3)(b), he or she:

                     (a)  ceases, by force of this subsection, to be a member of the amalgamated organisation with effect from the end of the day after the end of the notice period; and

                     (b)  becomes, by force of this subsection and without payment of entrance fee, a member of the newly registered organisation with effect from the day after the day referred to in paragraph (a).

             (8)  A person who ceases to be a member of the amalgamated organisation because of the operation of subsection (6):

                     (a)  is not liable to make any payment because the person gave no notice, or insufficient notice, of ceasing to be such a member under the rules of the organisation; and

                     (b)  otherwise, remains liable for such payments as are due in accordance with those rules.

             (9)  Despite subsection (7A), if a person to whom that subsection would apply, at any time before the day upon which the constituent part is registered as an organisation under section 110, gives notice in writing to the amalgamated organisation or to the applicant for a ballot under section 94 that he or she wishes to remain a member of the amalgamated organisation after the registration of the constituent part as an organisation under section 110, that person remains a member of the amalgamated organisation.

           (10)  As soon as practicable after the end of the notice period, the amalgamated organisation must notify the newly registered organisation of any notices under subsection (9) it has received.

           (11)  As soon as practicable after the end of the notice period, the newly registered organisation must notify the amalgamated organisation of any notices under subsection (9) the applicant under section 94 has received.

112  Members of amalgamated organisation may join newly registered organisation

                   A person who is a member of the amalgamated organisation from which the constituent part withdrew to form a newly registered organisation may become a member of the newly registered organisation without payment of entrance fee if the person is eligible for membership of it.

113  Orders of the FWC, modern awards etc. made before withdrawal

             (1)  This section applies to an order of the FWC, a modern award or an enterprise agreement that, immediately before the day the registration takes effect, covered the amalgamated organisation in relation to the constituent part of the organisation and its members.

             (2)  On and from the day the registration takes effect, the order, award or agreement:

                     (a)  covers the newly registered organisation and its members; and

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

113A  Enterprise agreements made after withdrawal

             (1)  This section applies to an enterprise agreement that:

                     (a)  is made on or after the day the registration takes effect; and

                     (b)  covers the amalgamated organisation; and

                     (c)  covers employees who are eligible to be members of the newly registered organisation.

             (2)  On and from the day the agreement covers the amalgamated organisation, it also:

                     (a)  covers the newly registered organisation and its members; and

                     (b)  has effect for all purposes (including the obligations of employers and organisations of employers) as if references in the agreement to the amalgamated organisation included references to the newly registered organisation.

             (3)  Subsection (2) ceases to have effect on the day occurring 5 years after the day on which the registration of the newly registered organisation takes effect.

114  Effect of withdrawal on agreement under section 151

             (1)  An agreement:

                     (a)  in force under section 151 immediately before the day on which registration of a newly registered organisation takes effect; and

                     (b)  to which the amalgamated organisation from which a constituent part has withdrawn to form the newly registered organisation is a party;

continues in force on and from that day as if references in the agreement to the amalgamated organisation included a reference to the newly registered organisation.

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

115  Instruments

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

             (2)  Subject to section 109, the instrument has effect, in relation to acts, omissions, transactions and matters done, entered into or occurring on or after that day as if a reference in the instrument to the amalgamated organisation from which a constituent part has withdrawn to form a newly registered organisation included a reference to the newly registered organisation.

116  Pending proceedings

                   If an amalgamated organisation from which a constituent part has withdrawn to form a newly registered organisation was, immediately before the withdrawal day, a party to a proceeding that:

                     (a)  was pending at that day; and

                     (b)  concerns, wholly or in part, the interests of the constituent members of the constituent part;

then, on and after that day, the newly registered organisation:

                     (c)  in the case of proceedings that concern wholly the interests of the constituent members—is substituted for the amalgamated organisation in those proceedings and has the same rights and obligations in the proceedings as the amalgamated organisation had; and

                     (d)  in the case of proceedings that concern in part the interests of the constituent members—becomes a party to the proceedings and has the same rights and obligations in the proceedings as the amalgamated organisation has.

117  Division applies despite laws and agreements prohibiting transfer etc.

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

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

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

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

                     (a)  is to be regarded as:

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

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

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

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

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

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

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

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

             (1)  The following must take such steps as are necessary to ensure that the withdrawal from amalgamation, and the operation of this Division in relation to the withdrawal from amalgamation, are fully effective:

                     (a)  the amalgamated organisation concerned;

                     (b)  the constituent part concerned;

                     (c)  the newly registered organisation concerned.

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

119  Certificates in relation to land and interests in land

                   Where:

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

                     (b)  a certificate that:

                              (i)  is signed by an authorised person; and

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

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

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

the officer with whom the certificate is lodged may:

                     (c)  register the matter in the same way as dealings in land or interests in land of that kind are registered; and

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

120  Certificates in relation to charges

                   Where:

                     (a)  a newly registered organisation becomes, under this Division, the holder of a charge; and

                     (b)  a certificate that:

                              (i)  is signed by an authorised person; and

                             (ii)  identifies the charge; and

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

                            is lodged with the Australian Securities and Investments Commission;

that Commission may:

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

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

121  Certificates in relation to shares etc.

                   Where:

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

                     (b)  a certificate that:

                              (i)  is signed by an authorised person; and

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

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

                            is delivered to the company;

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

122  Certificates in relation to other assets

                   Where:

                     (a)  an asset (other than an asset to which section 119, 120 or 121 applies) becomes, under this Division, an asset of a newly registered organisation; and

                     (b)  a certificate that:

                              (i)  is signed by an authorised person; and

                             (ii)  identifies the asset; and

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

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

the person or authority may:

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

                     (d)  deal with, and give effect to, the certificate as if the certificate were a proper and appropriate instrument for transactions in relation to assets of that kind.

123  Holding office after withdrawal

             (1)  The rules of a newly registered organisation may provide that a person who:

                     (a)  was elected to office (the constituent office) in the constituent part that withdrew from an amalgamated organisation to form the new registered organisation; and

                     (b)  held that office immediately before withdrawal day;

holds the equivalent office in the newly registered organisation as if he or she were elected under the rules of the newly registered organisation.

             (2)  However, the rules may not permit a person to hold office after the later of:

                     (a)  the day that would have been the person’s last day of term in the constituent office if the withdrawal had not occurred; and

                     (b)  the first anniversary of the withdrawal day.

124  Other matters

                   The regulations may provide for any other matters relating to giving effect to the withdrawal of constituent parts from amalgamated organisations.

125  Federal Court may resolve difficulties

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

             (2)  An order made under subsection (1) has effect despite any Commonwealth, State or Territory law.

Division 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 FWC to make orders about the representation rights of organisations of employees.

Part 2 provides for the orders to be made generally in relation to demarcation disputes.

Part 3 provides for the orders to be made in relation to employees who perform work for the same employer and/or at the same premises or workplace.

Part 4 contains miscellaneous provisions.

Part 2Representation orders

  

133  Orders about representation rights of organisations of employees

             (1)  Subject to this Part, Part 4 and subsection 151(6), the FWC may, on the application of an organisation, an employer or the Minister, make the following orders in relation to a demarcation dispute:

                     (a)  an order that an organisation of employees is to have the right, to the exclusion of another organisation or other organisations, to represent under this Act or the Fair Work Act the industrial interests of a particular class or group of employees who are eligible for membership of the organisation;

                     (b)  an order that an organisation of employees that does not have the right to represent under this Act or the Fair Work Act the industrial interests of a particular class or group of employees is to have that right;

                     (c)  an order that an organisation of employees is not to have the right to represent under this Act or the Fair Work Act the industrial interests of a particular class or group of employees who are eligible for membership of the organisation.

Note:          Section 151 deals with agreements between organisations of employees and State unions.

             (2)  The FWC 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 FWC must not make an order unless the FWC 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 the FWC

                   In considering whether to make an order under section 133, the FWC must have regard to the wishes of the employees who are affected by the dispute and, where the FWC 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 FWC becomes aware that deals with the right of an organisation of employees to represent under this Act or the Fair Work Act the industrial interests of a particular class or group of employees; and

                     (c)  the consequences of not making an order for any employer, employees or organisation involved in the dispute; and

                     (d)  any other order made by the FWC, in relation to another demarcation dispute involving the organisation to which the order under this section would relate, that the FWC considers to be relevant.

136  Order may be subject to limits

                   The order may be subject to conditions or limitations.

137  Organisation must comply with order

             (1)  An organisation to which the order applies must comply with the order.

             (2)  The Federal Court may, on application by the Minister or a person or organisation affected by an order made under section 133, make such orders as it thinks fit to ensure compliance with that order.

Part 3Representation orders for workplace groups

Note:       In addition to registered organisations, this Part also applies to transitionally recognised associations (see clause 3 of Schedule 1) and recognised State‑registered associations (see clause 2 of Schedule 2).

  

137A  Orders about representation rights of organisations of employees

             (1)  Subject to this Part, Part 4 and subsection 151(6), the FWC may, on the application of an organisation, an employer or the Minister, make the following orders in relation to a dispute (including a threatened, impending or probable dispute) about the entitlement of an organisation of employees to represent, under this Act or the Fair Work Act, the industrial interests of employees:

                     (a)  an order that an organisation of employees is to have the right, to the exclusion of another organisation or other organisations, to represent under this Act or the Fair Work Act the industrial interests of the employees in a particular workplace group who are eligible for membership of the organisation;

                     (b)  an order that an organisation of employees is not to have the right to represent under this Act or the Fair Work Act the industrial interests of the employees in a particular workplace group.

Note:          Section 151 deals with agreements between organisations of employees and State unions.

Interim orders

             (2)  The FWC may make an interim order in relation to an application under subsection (1) on application by a person or organisation who would have been eligible to make the application under subsection (1).

             (3)  The FWC must not make an order under subsection (2) if the FWC considers that the making of the order would be unfair to a person or organisation other than the applicant.

             (4)  An interim order made under subsection (2) ceases to have effect if the application under subsection (1) is determined.

Variation of orders

             (5)  The FWC may, on application by an organisation, an employer or the Minister, vary an order made under subsection (1) or (2).

             (6)  The FWC may, on its own initiative, vary an order made under subsection (1) or (2) if the order is inconsistent with an order that is in force under subsection 133(1).

Inconsistency with orders under subsection 133(1)

             (7)  The FWC must not make an order under subsection (1) or (2) if the order would be inconsistent with an order that is in force under subsection 133(1).

137B  Factors to be taken into account by the FWC

             (1)  In considering whether to make an order under subsection 137A(1) in relation to a particular workplace group, the FWC must have regard to:

                     (a)  the history of award coverage and agreement making in relation to the employees in the workplace group; and

                     (b)  the wishes of the members of the workplace group; and

                     (c)  the extent to which particular organisations of employees represent the employees in the workplace group, and the nature of that representation; and

                     (d)  any agreement or understanding of which the FWC becomes aware that deals with the right of an organisation of employees to represent under this Act or the Fair Work Act the industrial interests of a particular class or group of employees; and

                     (e)  the consequences of not making the order for any employer, employees or organisation concerned; and

                      (f)  any matter prescribed by the regulations.

             (2)  However, if:

                     (a)  the workplace group relates to a genuine new enterprise (within the meaning of the Fair Work Act) that one or more employers are establishing or propose to establish; and

                     (b)  the employer or employees have not employed any of the persons who will be necessary for the normal conduct of that enterprise;

the FWC must, as far as practicable, have regard to the matters set out in subsection (1) as they would apply in relation to the persons who would be the employees in the workplace group.

Note:          The expression genuine new enterprise includes a genuine new business, activity, project or undertaking (see the definition of enterprise in section 12 of the Fair Work Act).

             (3)  If:

                     (a)  the eligibility rules of an organisation of employees have been altered with the consent of the General Manager under section 158A; and

                     (b)  because of the alteration, members of an association of employees registered under a State or Territory industrial law have become eligible for membership of the organisation;

a reference in this section to the organisation includes a reference to the association referred to in paragraph (b) of this subsection.

137C  Submissions by peak councils

             (1)  A peak council is entitled to make a submission for consideration in relation to the proposed making of an order under subsection 137A(1).

             (2)  Subsection (1) applies whether or not the FWC holds a hearing in relation to the matter.

137D  Order may be subject to limits

                   An order under subsection 137A(1) or (2) may be subject to conditions or limitations.

137E  Organisation must comply with order

             (1)  An organisation to which an order under subsection 137A(1) or (2) applies must comply with the order.

             (2)  The Federal Court may, on application by the Minister or a person or organisation affected by an order made under subsection 137A(1) or (2), make such orders as it thinks fit to ensure compliance with that order.

Part 4Miscellaneous

  

137F  FWC may make orders reflecting State representation orders

             (1)  If:

                     (a)  the eligibility rules of an organisation of employees have been altered with the consent of the General Manager under section 158A; and

                     (b)  because of the alteration, members of an association of employees that is registered under a State or Territory industrial law (a State registered association) have become eligible for membership of the organisation; and

                     (c)  immediately before the alteration took effect, an order (a State representation order) was in force that:

                              (i)  was made by a State industrial authority in relation to the State registered association; and

                             (ii)  was an order of the same kind as, or of a similar kind to, an order that the FWC could make under this Chapter in relation to an organisation;

the FWC may, on application by the organisation or by a party to the State representation order, make an order in relation to the organisation that is to the same effect, or substantially the same effect, as the State representation order.

             (2)  The order under subsection (1) applies to each organisation that is:

                     (a)  a federal counterpart of the State registered association; or

                     (b)  a federal counterpart of any other association of employees:

                              (i)  that is registered under a State or Territory industrial law; and

                             (ii)  to which the State representation order applied.

138  Exercise of the FWC’s powers under this Chapter

                   The powers of the FWC under this Chapter are exercisable only by a Full Bench.

138A  Representation rights of former State‑registered associations

             (1)  Regulations made for the purposes of this subsection may modify the way in which this Chapter applies in relation to an organisation that, before becoming recognised under this Act, was a State‑registered association or a transitionally recognised association.

             (2)  Without limiting subsection (1), the regulations may specify the weight that the FWC is to give, in making an order in relation to the rights of such an organisation to represent the interests under this Act or the Fair Work Act of a particular class or group of employees, to a State demarcation order.

Chapter 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 Act.

             (2)  A rule of an organisation making provision required by this Act to be made may be mandatory or directory.

141  Rules of organisations

             (1)  The rules of an organisation:

                     (a)  must specify the purposes for which the organisation is formed and the conditions of eligibility for membership; and

                     (b)  must provide for:

                              (i)  the powers and duties of the committees of the organisation and its branches, and the powers and duties of holders of offices in the organisation and its branches; and

                             (ii)  the manner of summoning meetings of members of the organisation and its branches, and meetings of the committees of the organisation and its branches; and

                           (iia)  the keeping of minute books in which are recorded proceedings and resolutions of meetings of committees of management 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 FWC 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

                    (ca)  must require the organisation and each of its branches to develop and implement policies relating to the expenditure of the organisation or the branch (as the case may be); and

                     (d)  must require the organisation to inform applicants for membership, in writing, of:

                              (i)  the financial obligations arising from membership; and

                             (ii)  the circumstances, and the manner, in which a member may resign from the organisation.

Note 1:       Section 166 deals with entitlement to membership of organisations.

Note 2:       See also section 179 (liability for arrears).

             (2)  The rules of an organisation of employees may include provision for the eligibility for membership of the organisation of independent contractors who, if they were employees performing work of the kind which they usually perform as independent contractors, would be employees eligible for membership of the organisation.

             (3)  The rules of an organisation may also provide for any other matter.

             (4)  In this section:

committee, in relation to an organisation or branch of an organisation, means a collective body of the organisation or branch that has powers of the kind mentioned in paragraph (1)(b) of the definition of office in section 9.

142  General requirements for rules

             (1)  The rules of an organisation:

                     (a)  must not be contrary to, or fail to make a provision required by this Act, the Fair Work Act, a modern award or an enterprise agreement, or otherwise be contrary to law; and

                     (b)  must not be such as to prevent or hinder members of the organisation from:

                              (i)  observing the law or the provisions of a modern award, an order of the FWC or an enterprise agreement; or

                             (ii)  entering into written agreements under a modern award, an order of the FWC or an enterprise agreement; and

                     (c)  must not impose on applicants for membership, or members, of the organisation, conditions, obligations or restrictions that, having regard to Parliament’s intention in enacting this Act (see section 5) and the objects of this Act and the Fair Work Act, are oppressive, unreasonable or unjust; and

                     (d)  must not discriminate between applicants for membership, or members, of the organisation on the basis of race, colour, sex, sexual orientation, 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.

142A  Model rules for policies relating to expenditure

             (1)  The Minister may, by notice published in the Gazette, issue guidelines containing one or more sets of model rules dealing with the matters referred to in paragraph 141(1)(ca). An organisation or a branch of an organisation may adopt model rules in whole or in part, and with or without modification.

             (2)  A notice under subsection (1) is not a legislative instrument.

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 with the FWC an application for an exemption from subsection (1), accompanied by particulars of proposed alterations of the rules of the organisation, to provide for the conduct of elections of the kind referred to in subsection (1) by a secret ballot other than a postal ballot.

             (3)  If the General Manager is satisfied, on application by an organisation under subsection (2):

                     (a)  that the proposed alterations of the rules:

                              (i)  comply with and are not contrary to this Act (other than subsection (1)), the Fair Work Act, modern awards or enterprise agreements; and

                             (ii)  are not otherwise contrary to law; and

                            (iii)  have been decided on under the rules of the organisation; and

                     (b)  that the conduct of a ballot under the rules of the organisation as proposed to be altered:

                              (i)  is likely to result in a fuller participation by members of the organisation in the ballot than would result from a postal ballot; and

                             (ii)  will afford to members entitled to vote an adequate opportunity of voting without intimidation;

the General Manager may grant to the organisation an exemption from subsection (1).

             (4)  Proposed alterations of the rules of an organisation referred to in subsection (2) take effect if and when the General Manager grants to the organisation an exemption from subsection (1).

             (5)  An exemption under subsection (3) remains in force until revoked under subsection (6).

             (6)  The General Manager may revoke an exemption granted to an organisation under subsection (3):

                     (a)  on application by the organisation, if the General Manager is satisfied that the rules of the organisation comply with subsection (1); or

                     (b)  if the General Manager is no longer satisfied:

                              (i)  that the rules of the organisation provide for the conduct of elections of the kind referred to in subsection (1) by a secret ballot other than a postal ballot; or

                             (ii)  of a matter referred to in paragraph (3)(b);

                            and the General Manager has given the organisation an opportunity, as prescribed, to show cause why the exemption should not be revoked.

             (7)  Where the General Manager revokes an exemption granted to an organisation on the ground specified in paragraph (6)(b), the General Manager may, by instrument, after giving the organisation an opportunity, as prescribed, to be heard, determine such alterations (if any) of the rules of the organisation as are, in the General Manager’s opinion, necessary to bring them into conformity with subsection (1).

             (8)  An alteration of the rules of an organisation determined under subsection (7) takes effect on the date of the instrument.

             (9)  Subsection 604(1) of the Fair Work Act does not apply in relation to a decision of the General Manager to grant an exemption under subsection (3).

Note:          Subsection 604(1) of the Fair Work Act provides for appeals from certain decisions of the General Manager.

           (10)  This section applies in relation to elections for offices in branches of organisations as if references to an organisation were references to a branch of an organisation.

145  Rules to provide for terms of office

             (1)  The rules of an organisation must, subject to subsection (2), provide terms of office for officers in the organisation of no longer than 4 years without re‑election.

             (2)  The rules of an organisation, or a branch of an organisation, may provide that a particular term of office is extended for a specified period, where the extension is for the purpose of synchronising elections for offices in the organisation or branch, as the case may be.

             (3)  The term of an office must not be extended under subsection (2) so that the term exceeds 5 years.

             (4)  A reference in this section (other than subsection (2)) to the rules of an organisation includes a reference to the rules of a branch of the organisation.

146  Rules may provide for filling of casual vacancies

             (1)  The rules of an organisation may provide for the filling of a casual vacancy in an office by an ordinary election or, subject to this section, in any other manner provided in the rules.

             (2)  Rules made under subsection (1) must not permit a casual vacancy, or a further casual vacancy, occurring within the term of an office to be filled, otherwise than by an ordinary election, for so much of the unexpired part of the term as exceeds:

                     (a)  12 months; or

                     (b)  three‑quarters of the term of the office;

whichever is the greater.

             (3)  Where, under rules made under subsection (1), a vacancy in an office in an organisation is filled otherwise than by an ordinary election, the person filling the vacancy must be taken, for the purposes of the relevant provisions, to have been elected to the office under the relevant provisions.

             (4)  A reference in this section to the rules of an organisation includes a reference to the rules of a branch of the organisation.

             (5)  In this section:

ordinary election means an election held under rules that comply with section 143.

relevant provisions, in relation to an organisation, means:

                     (a)  the provisions of this Act (other than this section); and

                     (b)  the rules of the organisation (other than rules made under subsection (1)) providing for the filling of a casual vacancy in an office otherwise than by an ordinary election.

term, in relation to an office, means the total period for which the last person elected to the office by an ordinary election (other than an ordinary election to fill a casual vacancy in the office) was entitled by virtue of that election (having regard to any rule made under subsection 145(2)) to hold the office without being re‑elected.

147  Model rules for conduct of elections

             (1)  The Minister may, by notice published in the Gazette, issue guidelines containing one or more sets of model rules for the conduct of elections for office. An organisation may adopt model rules in whole or in part, and with or without modification.

             (2)  The Minister may, by signed instrument, delegate the power under subsection (1) to the Electoral Commissioner.

Note:          The Minister may also delegate this power under section 343.

Division 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:          Chapter 9 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 Act nor part of an organisation registered under this Act;

and which is composed substantially of persons who, under the eligibility rules of the organisation, are eligible to be members of the organisation.

151  Membership agreements

             (1)  The rules of an organisation of employees may authorise the organisation to enter into agreements in the prescribed form with State unions to the effect that members of the State union concerned who are ineligible State members are eligible to become members of the organisation under the agreement.

             (2)  If, under rules made under subsection (1), an organisation enters into an agreement with a State union, the organisation must lodge a copy of the agreement with the FWC.

Civil penalty:          60 penalty units.

             (3)  The agreement does not come into force unless and until the General Manager enters particulars of the agreement in the register kept under subsection 13(1).

             (4)  The General Manager must not enter particulars of the agreement in that register unless he or she has been directed by the FWC to do so.

             (5)  The FWC must not give such a direction to the General Manager unless the FWC is satisfied that the agreement:

                     (a)  is not contrary to:

                            (ia)  Parliament’s intention in enacting this Act (see section 5); or

                              (i)  any object of this Act or the Fair Work Act; or

                             (ii)  any subsisting order made by the FWC relating to the organisation’s eligibility rules; or

                            (iii)  any subsisting agreement or understanding of which the FWC is aware that deals with the organisation’s entitlement to represent under this Act, or the Fair Work Act, the industrial interests of a particular class or group of employees; and

                     (b)  was entered into only for the purpose of:

                              (i)  overcoming any legal or practical difficulty that might arise in connection with the participation, or possible participation, of ineligible State members in the administration of the organisation or in the conduct of its affairs; or

                             (ii)  encouraging and facilitating an amalgamation between the organisation and another organisation of employees.

             (6)  An organisation is not entitled to represent under this Act, or the Fair Work Act, the industrial interests of persons who are eligible for membership of the organisation only under an agreement entered into under rules made under subsection (1).

             (7)  If a person who became a member of an organisation under an agreement entered into under rules made under subsection (1) later becomes eligible for membership of the organisation under its eligibility rules, the organisation is not entitled to represent the industrial interests of the person until a record of the person’s eligibility is entered in the register kept under paragraph 230(1)(a).

             (8)  If it appears to the FWC:

                     (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 FWC 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 FWC is satisfied that the agreement is no longer operating for such a purpose, the FWC may, by order, terminate the agreement.

           (10)  The General Manager must as soon as practicable:

                     (a)  give notice of the termination to each party to the agreement; and

                     (b)  enter particulars of the termination in the register kept under subsection 13(1).

           (11)  If an organisation and a State union agree, in writing, to terminate an agreement entered into under rules made under subsection (1), the organisation must lodge with the FWC a copy of the agreement to terminate.

Civil penalty:          60 penalty units.

        (11A)  If an organisation and a State union agree, in writing, to terminate an agreement entered into under rules made under subsection (1), the General Manager must as soon as practicable enter particulars of the termination in the register kept under subsection 13(1).

           (12)  The termination of an agreement takes effect when particulars of the termination are entered in the register as mentioned in paragraph (10)(b) or (11)(b) and, when the termination takes effect, persons who became members of the organisation under the agreement (other than a person whose eligibility for membership of the organisation under its eligibility rules is recorded as mentioned in subsection (7)) cease to be members of the organisation.

152  Assets and liabilities agreements

             (1)  The rules of an organisation of employees may authorise the organisation to enter into agreements with State unions setting out arrangements for the management and control of the assets and liabilities of the organisation and the State union concerned.

             (2)  The agreements must be in the prescribed form.

             (3)  If, under rules made under subsection (1), an organisation enters into an agreement with a State union, the organisation must lodge a copy of the agreement with the FWC.

Civil penalty:          60 penalty units.

             (4)  The agreement does not come into force unless and until the General Manager enters particulars of the agreement in the register kept under subsection 13(1).

             (5)  The General Manager must not enter particulars of the agreement in that register unless he or she has been directed by the FWC to do so.

             (6)  The FWC must not give such a direction to the General Manager unless the FWC is satisfied that the agreement:

                     (a)  is not contrary to Parliament’s intention in enacting this Act (see section 5) or any object of this Act or the Fair Work Act; and

                     (b)  does not adversely affect the interests of any lessor, lessee or creditor of the organisation or State union.

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

             (1)  An organisation or a State union who is a party to an agreement made under section 152 (a section 152 agreement) may apply to the Federal Court for orders:

                     (a)  requiring the other party to comply with the agreement; or

                     (b)  resolving any difficulty in the operation or interpretation of the agreement;

and the Court may make such orders as it thinks fit.

             (2)  In making an order under subsection (1), the Court must have regard to the interests of any lessor, lessee or creditor of the organisation or State union.

             (3)  An order made under subsection (1) has effect despite anything in the rules of the organisation or State union who are the parties to the agreement.

154  Termination of section 152 agreement

             (1)  If an organisation and a State union agree, in writing, to terminate an agreement made under section 152 (a section 152 agreement), the termination has no effect unless the parties apply to the Federal Court for approval under this section and the Court gives its approval.

             (2)  The Court must not approve the termination unless:

                     (a)  the parties have made an agreement (a termination agreement) that makes appropriate provision for the management and control of the assets and liabilities of the organisation and State union after termination of the section 152 agreement; or

                     (b)  the Court makes orders that will, in the Court’s opinion, make appropriate provision for the management and control of the assets and liabilities of the organisation and State union after termination of the section 152 agreement.

             (3)  In determining whether a termination agreement, or orders, make appropriate provision as required by subsection (2), the Court must have regard to the following factors:

                     (a)  the positions of the organisation and State union in relation to their respective assets and liabilities before the section 152 agreement took effect;

                     (b)  the fairness, in all the circumstances, of the manner in which relevant assets and liabilities acquired after the section 152 agreement took effect will be dealt with after termination of the agreement;

                     (c)  how the interests of lessors, lessees or creditors of the organisation and the State union will be affected by the termination and subsequent arrangements;

                     (d)  any other factor that the Court considers relevant.

             (4)  If the Court approves a termination agreement, the Court must direct the General Manager to enter particulars of the agreement in the register kept under subsection 13(1), 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 BABranches of organisations

154A  Branch autonomy

                   The rules of an organisation may provide for the autonomy of a branch in matters affecting members of the branch only and matters concerning the participation of the branch in a State workplace relations system.

154B  Branch funds

             (1)  The rules of an organisation may provide for a fund of the branch that is to be managed and controlled under rules of the branch, and may make provision in relation to the fund in accordance with subsection (2).

             (2)  The branch fund may consist of:

                     (a)  real or personal property of which the branch of the organisation, by the rules or by any established practice not inconsistent with the rules, has, or in the absence of a limited term lease, bailment or arrangement, would have, the right of custody, control or management; and

                     (b)  the amounts of entrance fees, subscriptions, fines, fees or levies received by a branch, less so much of the amounts as is payable by the branch to the organisation; and

                     (c)  interest, rents, dividends or other income derived from the investment or use of the fund; and

                     (d)  a superannuation or long service leave or other fund operated or controlled by the branch for the benefit of its officers or employees; and

                     (e)  a sick pay fund, accident pay fund, funeral fund, tool benefit fund or similar fund operated or controlled by the branch for the benefit of its members; and

                      (f)  property acquired wholly or mainly by expenditure of the money of the fund or derived from other assets of the fund; and

                     (g)  the proceeds of a disposal of parts of the fund.

Subdivision BBApproved training

Subdivision CMiscellaneous

155  Exercise of the FWC’s powers under this Division

                   The powers of the FWC under this Division are exercisable only by the President, a Vice President or a Deputy President.

Division 5Alteration of rules and evidence of rules

156  General Manager may determine alterations of rules

             (1)  Where the rules of an organisation do not, in the General Manager’s opinion, make provision required by this Act, the General Manager may, by instrument, after giving the organisation an opportunity, as prescribed, to be heard on the matter, determine such alterations of the rules as are, in the General Manager’s opinion, necessary to bring them into conformity with this Act.

             (2)  Alterations determined under subsection (1) take effect on the date of the instrument.

157  FWC 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 FWC may, by instrument, determine such alterations of the rules of the organisation as are, in the FWC’s opinion, necessary to remove the overlap.

             (2)  The FWC must give the organisation and the other organisation an opportunity, as prescribed, to be heard on the matter.

             (3)  Alterations determined under subsection (1) take effect on the date of the instrument.

158  Change of name or alteration of eligibility rules of organisation

             (1)  A change in the name of an organisation, or an alteration of the eligibility rules of an organisation, does not take effect unless:

                     (a)  in the case of a change in the name of the organisation—the FWC consents to the change under this section; or

                     (b)  in the case of an alteration of the eligibility rules of the organisation:

                              (i)  the FWC consents to the alteration under this section; or

                             (ii)  the General Manager consents to the alteration under section 158A.

             (2)  The FWC may consent to a change or alteration in whole or part, but must not consent unless the FWC is satisfied that the change or alteration has been made under the rules of the organisation.

             (3)  The FWC must not consent to a change in the name of an organisation unless the FWC 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 FWC 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 FWC, 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 FWC accepts an undertaking from the organisation seeking the alteration that the FWC 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 FWC may refuse to consent to an alteration of the eligibility rules of an organisation if satisfied that the alteration would contravene an agreement or understanding to which the organisation is a party and that deals with the organisation’s right to represent under this Act and the Fair Work Act the industrial interests of a particular class or group of persons.

             (7)  The FWC 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 FWC under section 133 about the right of the organisation to represent under this Act and the Fair Work Act the industrial interests of a particular class or group of employees; and

                     (b)  considers that such a change would give rise to a serious risk of a demarcation dispute which would prevent, obstruct or restrict the performance of work in an industry, or harm the business of an employer.

             (8)  Subsections (6) and (7) do not limit the grounds on which the FWC may refuse to consent to an alteration of the eligibility rules of an organisation.

             (9)  Where the FWC 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 FWC under subsection 163(7); or

                     (b)  proposed to be made for the purposes of an amalgamation under Part 2 of Chapter 3 or Division 4 of Part 7 of Chapter 11; or

                     (c)  proposed to be made for the purposes of a withdrawal from amalgamation under Part 3 of Chapter 3.

158A  Alteration of eligibility rules of organisation by General Manager

             (1)  The General Manager must, on application by an organisation in accordance with subsection (2), consent to an alteration of the eligibility rules of the organisation to extend them to apply to persons within the eligibility rules of an association of employers or employees that is registered under a State or Territory industrial law, if the General Manager is satisfied:

                     (a)  that the alteration has been made under the rules of the organisation; and

                     (b)  that the organisation is a federal counterpart of the association; and

                     (c)  that the alteration will not extend the eligibility rules of the organisation beyond those of the association; and

                     (d)  that the alteration will not apply outside the limits of the State or Territory for which the association is registered; and

                     (e)  as to such other matters (if any) as are prescribed by the regulations.

Note:          If the General Manager consents to the alteration, the FWC may make orders that reflect State representation orders (see section 137F).

             (2)  The application must not be made before 1 January 2011, or such later day as the Minister declares in writing.

             (3)  A declaration made under subsection (2) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the declaration.

             (4)  If the General Manager consents, under subsection (1), to an alteration, the alteration takes effect on:

                     (a)  if a day is specified in the consent—that day; or

                     (b)  in any other case—the day of the consent.

159  Alteration of other rules of organisation

             (1)  An alteration of the rules (other than the eligibility rules) of an organisation does not take effect unless particulars of the alteration have been lodged with the FWC and the General Manager has certified that, in his or her opinion, the alteration:

                     (a)  complies with, and is not contrary to, this Act, the Fair Work Act, modern awards and enterprise agreements; and

                     (b)  is not otherwise contrary to law; and

                     (c)  has been made under the rules of the organisation.

             (2)  Where particulars of an alteration of the rules (other than the eligibility rules) of an organisation have been lodged with the FWC, the General Manager may, with the consent of the organisation, amend the alteration for the purpose of correcting a typographical, clerical or formal error.

             (3)  An alteration of rules that has been certified under subsection (1) takes effect on the day of certification.

             (4)  This section does not apply in relation to an alteration of the rules of an organisation that is:

                     (a)  proposed to be made in relation to an application for an exemption from subsection 144(1); or

                     (b)  determined or certified by the General Manager under subsection 144(7) or section 156, 163, 246, 247 or 249; or

                     (c)  proposed to be made for the purpose of an amalgamation under Part 2 of Chapter 3 or Division 4 of Part 7 of Chapter 11; or

                     (d)  proposed to be made for the purposes of a withdrawal from amalgamation under Part 3 of Chapter 3.

160  Certain alterations of rules to be recorded

                   Where there has been a change in the name of an organisation, or an alteration of the eligibility rules of an organisation, under this Act, the General Manager must:

                     (a)  immediately enter, in the register kept under subsection 13(1), particulars of the change or alteration, and the date of effect of the change or alteration; and

                     (b)  as soon as practicable after the organisation produces its certificate of registration to the General Manager, amend the certificate accordingly and return it to the organisation.

161  Evidence of rules

                   In proceedings under this Act or the Fair Work Act, a copy of the rules of an organisation certified by the General Manager to be a true and correct copy is evidence of the rules of the organisation.

162  Powers of the FWC

                   The powers of the FWC under this Division are exercisable only by the President, a Vice President or a Deputy President.

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—the President, a Vice President or a Deputy President; or

                     (b)  in relation to the other rules of an organisation—the General Manager.

           (13)  In this section, a reference to a rule, or the rules, of an organisation includes a reference to a rule, or the rules, of a branch of an organisation.

164  Directions for performance of rules

Application for order directing performance of rules

             (1)  A member of an organisation may apply to the Federal Court for an order under this section in relation to the organisation.

Note:          For the meaning of order under this section, see subsection (9).

             (2)  Before making an order under this section, the Court must give any person against whom the order is sought an opportunity of being heard.

             (3)  The Court may refuse to deal with an application for an order under this section unless it is satisfied that the applicant has taken all reasonable steps to try to have the matter that is the subject of the application resolved within the organisation.

Court may make interim orders

             (4)  At any time after the making of an application for an order under this section, the Court may make any interim orders that it considers appropriate and, in particular, orders intended to further the resolution within the organisation concerned of the matter that is the subject of the application.

             (5)  An order under subsection (4) continues in force, unless expressed to operate for a shorter period or sooner discharged, until the completion of the proceeding concerned.

Definition

             (9)  In this section:

order under this section means an order giving directions for the performance or observance of any of the rules of an organisation by any person who is under an obligation to perform or observe those rules.

164A  Directions to rectify breach of rule of organisation

Application for order

             (1)  A member of an organisation may apply to the Federal Court for an order under subsection (4) in relation to the organisation.

             (2)  Before making the order, the Court must give any person against whom the order is sought an opportunity of being heard.

Conditions for making order

             (3)  The Court may make an order under subsection (4) in relation to an organisation if the Court is satisfied that:

                     (a)  a person was under an obligation to perform or observe a rule or rules of the organisation; and

                     (b)  the person breached the rule or rules; and

                     (c)  the person acted unreasonably in so breaching the rule or rules.

Nature of order

             (4)  Subject to section 164B, the Court may make an order directing one or more persons (who may be, or include, the person who breached the rule or rules) to do specified things that will, in the opinion of the Court, as far as is reasonably practicable, place the organisation in the position in which it would have been if the breach of the rule or rules had not occurred.

             (5)  The Court may make the order whether or not, at the time of making the order, the person is a member or officer of the organisation.

164B  Orders under sections 164 and 164A

Order must not invalidate election etc.

             (1)  An order must not be made under section 164 or 164A that would have the effect of treating as invalid an election to an office in an organisation or a step in relation to such an election.

Order must not require compensation

             (2)  An order under section 164A does not include an order directing one or more persons to compensate an organisation for any loss or damage suffered by the organisation caused by the breach of the rule or rules.

Note:          An application for a compensation order may be made under Part 2 of Chapter 10.

Court may declare that rules contravene section 142

             (3)  Where the Court, in considering an application under section 164 or 164A, finds that the whole or a part of a rule of the organisation concerned contravenes section 142 or that the rules of the organisation concerned contravene that section in a particular respect, the Court may, by order, make a declaration to that effect.

             (4)  Section 163 (other than subsections (1) to (5) (inclusive)) applies in relation to an order made under subsection (3) of this section as if the order had been made under section 163.

Definition

             (5)  In this section:

election includes a purported election that is a nullity.

Chapter 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 modern award or order of the FWC, a person who is eligible to become a member of an organisation of employees under the eligibility rules of the organisation that relate to the occupations in which, or the industry or enterprise in relation to which, members are to be employed is, unless of general bad character, entitled, subject to payment of any amount properly payable in relation to membership:

                     (a)  to be admitted as a member of the organisation; and

                     (b)  to remain a member so long as the person complies with the rules of the organisation.

Note 1:       Rules of an organisation must provide for the circumstances in which a person ceases to be a member of an organisation (see subparagraph 141(1)(b)(vii)).

Note 2:       If a member fails to pay his or her membership dues for 24 months, this may result in the person ceasing to be a member, regardless of the rules of the organisation (see section 172).

Note 3:       See also section 168, which deals with a special case of entitlement to membership (person treated as having been a member).

             (2)  Subsection (1) does not entitle a person to remain a member of an organisation if the person ceases to be eligible to become a member and the rules of the organisation do not permit the person to remain a member.

             (3)  A person who is qualified to be employed in a particular occupation, and seeks to be employed in the occupation:

                     (a)  is taken to be an employee for the purposes of this section; and

                     (b)  in spite of anything in the rules of the organisation, is not to be treated as not being eligible for membership of an organisation merely because the person has never been employed in the occupation.

Employer organisations

             (4)  Subject to subsection (5) and to any modern award or order of the FWC, 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.

Civil penalty:          100 penalty units.

170  Rectification of register of members

                   The Federal Court may at any time, in a proceeding under this Act or the Fair Work Act, order such rectifications of the register of members of an organisation as it considers necessary.

Part 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.

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

             (1)  If a person is a member of an organisation and the person is not, or is no longer:

                     (a)  if the organisation is an association of employers—a person of a kind mentioned in paragraph 18A(3)(a), (b), (c) or (d); or

                     (b)  if the organisation is an association of employees—a person of a kind mentioned in paragraph 18B(3)(a), (b), (c) or (d); or

                     (c)  if the organisation is an enterprise association—a person of a kind mentioned in paragraph 18C(3)(a), (b), (c) or (d);

the person’s membership of the organisation immediately ceases.

             (2)  Subsection (1) has effect despite anything in the rules of the organisation.

172  Non‑financial members to be removed from the register

             (1)  If:

                     (a)  the rules of an organisation require a member to pay dues in relation to the person’s membership of the organisation; and

                     (b)  the member has not paid the amount; and

                     (c)  a continuous period of 24 months has elapsed since the amount became payable; and

                     (d)  the member’s name has not been removed from the register kept by the organisation under paragraph 230(1)(a);

the organisation must remove the name and postal address of the member from the register within 12 months after the end of the 24 month period.

Civil penalty:          60 penalty units.

             (2)  In calculating a period for the purposes of paragraph (1)(c), any period in relation to which the member was not required by the rules of the organisation to pay the dues is to be disregarded.

             (3)  A person whose name is removed from the register under this section ceases to be a member of the organisation on the day his or her name is removed. This subsection has effect in spite of anything in the rules of the organisation.

Note:          A non‑financial member’s membership might cease and his or her name be removed from the register earlier than is provided for by this section if the organisation’s own rules provide for this to happen.

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

             (1)  If:

                     (a)  a person applies for membership of an organisation within 6 months after the person’s membership has ceased under section 172; and

                     (b)  the application is accepted by the organisation;

the organisation must not require the person to pay any fee associated with a new membership (other than membership dues) in relation to the membership for which the person has applied.

             (2)  This section is not to be taken to prevent an organisation requiring (whether by means of its rules or otherwise) payment of outstanding dues in order for a person to maintain continuity of financial membership.

174  Resignation from membership

             (1)  A member of an organisation may resign from membership by written notice addressed and delivered to a person designated for the purpose in the rules of the organisation or a branch of the organisation.

Note:          The notice of resignation can be given electronically if the organisation’s rules allow for this (see section 9 of the Electronic Transactions Act 1999).

             (2)  A notice of resignation from membership of an organisation takes effect:

                     (a)  where the member ceases to be eligible to become a member of the organisation:

                              (i)  on the day on which the notice is received by the organisation; or

                             (ii)  on the day specified in the notice, which is a day not earlier than the day when the member ceases to be eligible to become a member;

                            whichever is later; or

                     (b)  in any other case:

                              (i)  at the end of 2 weeks, or such shorter period as is specified in the rules of the organisation, after the notice is received by the organisation; or

                             (ii)  on the day specified in the notice;

                            whichever is later.

             (3)  Any dues payable but not paid by a former member of an organisation, in relation to a period before the member’s resignation from the organisation took effect, may be sued for and recovered in the name of the organisation, in a court of competent jurisdiction, as a debt due to the organisation.

             (4)  A notice delivered to the person mentioned in subsection (1) is taken to have been received by the organisation when it was delivered.

             (5)  A notice of resignation that has been received by the organisation is not invalid because it was not addressed and delivered in accordance with subsection (1).

             (6)  A resignation from membership of an organisation is valid even if it is not effected in accordance with this section if the member is informed in writing by or on behalf of the organisation that the resignation has been accepted.

Note:          Regulations may require employers who offer payroll deduction facilities to inform employees that cessation of payroll deduction by an employee does not constitute resignation (see section 359).

Part 4False information, disputes and arrears of dues

  

175  False representation as to membership of organisation

                   A person must not, in an application made under this Act or the Fair Work Act, make a statement about the person’s membership of an organisation if the person knows, or is reckless as to whether, the statement is false or misleading.

Civil penalty:          100 penalty units.

176  False representation about resignation from organisation

                   A person (the first person) must not provide information about resignation from an organisation to a member, or a person eligible to become a member, of the organisation if the person knows, or is reckless as to whether, the information is false or misleading.

Civil penalty:          100 penalty units.

177  Disputes between organisations and members

             (1)  A dispute between an organisation and any of its members is to be decided under the rules of the organisation.

             (2)  Any fine, fee, levy or dues payable to an organisation by a member in relation to a period after the organisation was registered may be sued for and recovered, in the name of the organisation, as a debt due to the organisation, in a court of competent jurisdiction.

             (3)  A court of competent jurisdiction may, on application brought in the name of an organisation, order the payment by a member of any contribution (not exceeding $20) to a penalty incurred or money payable by the organisation under a modern award, order or enterprise agreement.

178  Recovery of arrears

             (1)  In spite of subsection 177(2), legal proceedings for the recovery of an amount payable by a person in relation to the person’s membership of an organisation must not be commenced after the end of the period of 12 months starting on the day on which the amount became payable.

             (2)  The amount ceases to be payable at the end of the period if legal proceedings to recover the amount have not been commenced by then.

179  Liability for arrears

             (1)  Where a person has ceased to be eligible to become a member of an organisation and that person has not actively participated in the affairs of the organisation since that time, those circumstances are a defence to an action by the organisation for arrears of dues payable from the time when the person ceased to be so eligible.

             (2)  Where such a defence is successful, that person is taken to have ceased to be a member from the time that the person ceased to be so eligible.

Part 5Conscientious objection to membership

  

180  Conscientious objection to membership of organisations

             (1)  Where a natural person:

                     (a)  on application made to the General Manager, satisfies the General Manager:

                              (i)  in the case of a person who is an employer or is otherwise eligible to join an organisation of employers—that the person’s conscientious beliefs do not allow the person to be a member of an association of the kind described in paragraph 18(a); or

                             (ii)  in the case of a person who is an employee or is otherwise eligible to join an organisation of employees—that the person’s conscientious beliefs do not allow the person to be a member of an association of the kind described in paragraph 18(b) or (c); and

                     (b)  pays the prescribed fee to the General Manager;

the General Manager must issue to the person a certificate to that effect in the prescribed form.

             (2)  An appeal does not lie to the FWC under section 604 of the Fair Work Act against a decision of the General Manager to issue a certificate under subsection (1).

             (3)  Subject to subsection (4), a certificate under subsection (1) remains in force for the period (not exceeding 12 months) specified in the certificate, but may, as prescribed, be renewed from time to time by the General Manager for such period (not exceeding 12 months) as the General Manager considers appropriate.

             (4)  Where:

                     (a)  the General Manager becomes aware of a matter that was not known to the General Manager when a certificate was issued by the General Manager to a person under subsection (1); and

                     (b)  if the General Manager had been aware of the matter when the application for the certificate was being considered, the General Manager would not have issued the certificate;

the General Manager may, after giving the person an opportunity, as prescribed, to show cause why the certificate should not be revoked, revoke the certificate.

             (6)  In this section:

appropriate organisation, in relation to a person who has made an application under subsection (1), means the organisation that, in the opinion of the General Manager dealing with the application, would, but for the person’s conscientious beliefs, be the appropriate organisation for the person to join having regard to:

                     (a)  in the case of a person who is an employer—the industry in relation to which the person is an employer; or

                     (b)  in the case of a person who is otherwise eligible to join an organisation of employers—the business carried on by the person; or

                     (c)  in the case of a person who is an employee—the past employment (if any), and the future prospects of employment, of the person; or

                     (d)  in the case of a person who is otherwise eligible to join an organisation of employees—the work done by the person or the enterprise in which the person works.

conscientious beliefs means any conscientious beliefs, whether the grounds for the beliefs are or are not of a religious character and whether the beliefs are or are not part of the doctrine of any religion.

prescribed fee, in relation to a person who has made an application under subsection (1), means a fee equal to the annual subscription that would be payable by the person if the person were a member of the appropriate organisation.

Chapter 7Democratic control

Part 1Simplified outline of Chapter

  

181  Simplified outline

This Chapter deals with elections for positions in organisations. It does not deal with other kinds of ballots (for example, amalgamation and disamalgamation ballots, which are dealt with in Chapter 3).

Part 2 sets out the rules for the conduct of elections. Elections for office must generally be conducted by the AEC. This Part also requires the AEC to conduct elections for some positions that are not offices, if the organisation concerned requests the AEC to do so.

Part 3 provides for inquiries by the Federal Court into elections for office.

Part 4 sets out the circumstances in which people are disqualified from holding, or being elected to hold, office in organisations.

Part 2Conduct of elections for office and other positions

  

182  Conduct by AEC

Elections for office

             (1)  Each election for an office in an organisation, or branch of an organisation, must be conducted by the AEC. The expenses of conducting such an election are to be borne by the Commonwealth.

Note:          For the meaning of office, see section 9.

             (2)  Subsection (1) does not apply in relation to an election for an office in an organisation or branch while an exemption granted to the organisation or branch, as the case may be, under section 186 is in force in relation to elections in the organisation or branch or an election for the particular office.

Elections for other positions

             (3)  If an organisation or branch of an organisation has made a request under section 187 in relation to an election for a position other than an office, the AEC must conduct the election.

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

             (1)  A committee of management of an organisation or branch of an organisation may lodge with the Commissioner an application for the organisation or branch, as the case may be, to be exempted from subsection 182(1) in relation to elections for offices, or an election for a particular office, in the organisation or branch.

             (2)  An application may not be made by a committee of management of an organisation or branch of an organisation unless the committee of management:

                     (a)  has resolved to make the application; and

                     (b)  has notified the members of the organisation or branch, as prescribed, of the making of the resolution.

             (3)  An application under subsection (1) must be accompanied by a declaration by a member of the committee of management concerned stating that subsection (2) has been complied with.

             (4)  Where an application has been made under subsection (1), the Commissioner must cause a notice setting out details of the application to be published, as prescribed, for the purpose of bringing the notice to the attention of members of the organisation or branch concerned.

             (5)  Where the rules of an organisation require an office to be filled by an election by the members, or by some of the members, of a single branch of the organisation, an election to fill the office is taken to be an election for the branch.

184  Objections to application to conduct elections for office

             (1)  Objection may be made to an application under subsection 183(1) by a member of the organisation or branch of the organisation in relation to which the application was made.

             (2)  The Commissioner must, as prescribed, hear the application and any objections duly made.

185  Threats etc. in relation to section 184 objections

             (1)  A person commits an offence if the person uses, causes or inflicts any violence, injury, punishment, damage, loss or disadvantage to another person because the other person has lodged an objection under subsection 184(1).

Penalty:  30 penalty units.

             (2)  A person commits an offence if the person:

                     (a)  gives, or offers or promises to give, any property or benefit of any kind with the intention of influencing or affecting another person because the other person proposes to lodge, or has lodged, an objection under subsection 184(1); or

                     (b)  asks for or obtains, or offers or agrees to ask for or obtain, any property or benefit of any kind (whether for that person or another person), on the understanding that the lodging of an objection under subsection 184(1) will be influenced or affected in any way.

Penalty:  30 penalty units.

186  Commissioner may permit organisation or branch to conduct its elections for office

             (1)  Where an application in relation to an organisation or branch has been lodged under subsection 183(1) and, after any objections duly made have been heard, the Commissioner is satisfied:

                     (a)  that the rules of the organisation or branch comply with the requirements of this Act relating to the conduct of elections for office; and

                     (b)  that, if the organisation or branch is exempted from subsection 182(1), the elections for the organisation or branch, or the election for the particular office, as the case may be, will be conducted:

                              (i)  under the rules of the organisation or branch, as the case may be, and this Act; and

                             (ii)  in a manner that will afford members entitled to vote at such elections or election an adequate opportunity of voting without intimidation;

the Commissioner may exempt the organisation or branch from subsection 182(1) in relation to elections for the organisation or branch, or the election for the particular office, as the case may be.

             (2)  The Commissioner may revoke an exemption granted to an organisation or branch under subsection (1):

                     (a)  on application by the committee of management of the organisation or branch; or

                     (b)  if the Commissioner:

                              (i)  is no longer satisfied as mentioned in subsection (1); and

                             (ii)  has given the committee of management of the organisation or branch an opportunity, as prescribed, to show cause why the exemption should not be revoked.

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

             (1)  If the rules of an organisation or branch of an organisation require an election to be held for a position other than an office in the organisation or branch, the organisation or branch, as the case may be, may request the AEC to conduct the election.

Note:          For the meaning of office, see section 9.

             (2)  The request must be:

                     (a)  in writing; and

                     (b)  signed by an officer of the organisation or branch who is authorised to do so by the committee of management of the organisation or branch; and

                     (c)  given to the AEC.

             (3)  A copy of the request must also be lodged with the Commissioner at the same time as the prescribed information in relation to the election is lodged (see section 189).

188  Declaration envelopes etc. to be used for postal ballots

                   If the rules of an organisation provide for elections for office by postal ballot, a vote in the election cannot be counted unless the ballot paper on which it is recorded is returned as follows:

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

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

189  Commissioner to arrange for conduct of elections

             (1)  An organisation or branch of an organisation must lodge with the Commissioner the prescribed information in relation to an election that is to be conducted by the AEC.

             (2)  The prescribed information must be lodged before the prescribed day or such later day as the Commissioner allows.

Civil penalty:          60 penalty units.

             (3)  If:

                     (a)  the prescribed information is lodged with the Commissioner by the organisation or branch (whether or not before the prescribed day or the later day allowed by the Commissioner); and

                     (b)  the Commissioner is satisfied that an election is required to be held under the rules of the organisation or branch; and

                     (c)  if the election is not an election for an office—the organisation or branch has made a request under section 187;

the Commissioner must arrange for the conduct of the election by the AEC.

190  Organisation or branch must not assist one candidate over another

                   An organisation or branch commits an offence if it uses, or allows to be used, its property or resources to help a candidate against another candidate in an election under this Part for an office or other position.

Penalty:  100 penalty units.

191  Organisation to provide returning officer with copy of register

             (1)  A person (the returning officer) conducting an election under this Part for an office or other position in an organisation, or branch of an organisation, may give a written request to an officer or employee of the organisation or branch to make available the register of members, or part of the register, kept by the organisation under section 230, to the returning officer for the purposes of the ballot.

             (2)  An officer or employee of the organisation or branch commits an offence if he or she fails to comply with a request under subsection (1).

Penalty:  30 penalty units.

             (3)  Subsection (2) does not apply if the officer or employee complied with the request as promptly as he or she was capable.

Note:          A defendant bears an evidential burden in relation to the matter mentioned in subsection (3).

             (4)  An offence against subsection (2) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (5)  If the register, or the relevant part of the register, is kept in electronic form, the returning officer may require the register to be made available in that form.

             (6)  A request under subsection (1) must specify the period within which the register must be made available. The period must not be less than 7 days after the request is given.

192  Declaration by secretary etc. of organisation

             (1)  If:

                     (a)  a returning officer makes a request under section 191 in relation to the organisation’s register; and

                     (b)  the returning officer gives written notice of the request to the secretary or other prescribed officer of the organisation or branch concerned;

the secretary or other prescribed officer of the organisation must make a declaration, in accordance with subsection (2), that the register has been maintained as required by subsection 230(2).

Civil penalty:          100 penalty units.

             (2)  The declaration must be:

                     (a)  signed by the person making it; and

                     (b)  given to the returning officer, and lodged with the Commissioner, 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.

Civil penalty:          100 penalty units.

193  Provisions applicable to elections conducted by AEC

             (1)  If an electoral official is conducting an election, or taking a step in relation to an election, for an office or other position in an organisation, or branch of an organisation, the electoral official:

                     (a)  subject to paragraph (b), must comply with the rules of the organisation or branch; and

                     (b)  may, in spite of anything in the rules of the organisation or branch, take such action, and give such directions, as the electoral official considers necessary:

                              (i)  to ensure that no irregularities occur in or in relation to the election; or

                             (ii)  to remedy any procedural defects that appear to the electoral official to exist in the rules; or

                            (iii)  to ensure the security of ballot papers and envelopes that are for use, or used, in the election.

             (2)  A person commits an offence if the person does not comply with a direction under subsection (1).

Penalty:  30 penalty units.

             (3)  Subsection (2) does not apply so far as the person is not capable of complying.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

             (4)  Subsection (2) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter mentioned in subsection (4), see subsection 13.3(3) of the Criminal Code.

             (5)  An offence against subsection (2) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (6)  An election for an office or other position conducted by an electoral official, or step taken in relation to such an election, is not invalid merely because of a breach of the rules of the organisation or branch because of:

                     (a)  action taken under subsection (1); or

                     (b)  an act done in compliance with a direction under subsection (1).

             (7)  If an electoral official conducting, or taking a step in connection with, an election for an office or other position:

                     (a)  dies or becomes unable to complete the conduct of the election or the taking of the step; or

                     (b)  ceases to be qualified to conduct the election or to take the step;

the Electoral Commissioner must arrange for the completion of the conduct of the election, or the taking of the step, by another electoral official.

194  Hindering or obstructing electoral official or other person

                   A person commits an offence if the person hinders or obstructs:

                     (a)  an electoral official in the performance of functions in relation to an election for an office or other position in an organisation or branch of an organisation; or

                     (b)  any other person in complying with a direction under subsection 193(1).

Penalty:  30 penalty units.

195  Improper interference with election process

             (1)  This section applies in relation to an election for an office or other position in an organisation or branch of an organisation.

Interference with ballot papers

             (2)  A person commits an offence if the person:

                     (a)  impersonates another person with the intention of:

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

                             (ii)  casting a vote; or

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

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

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

                             (ii)  into the post; or

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

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

                      (f)  records more than one vote; or

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

                     (h)  provides a ballot paper without authority; or

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

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

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

Penalty:  30 penalty units.

Threats in relation to votes, candidature etc.

             (3)  A person commits an offence if the person threatens, offers or suggests, or uses, causes or inflicts, any violence, injury, punishment, damage, loss or disadvantage with the intention of influencing or affecting:

                     (a)  any candidature or withdrawal of candidature; or

                     (b)  any vote or omission to vote; or

                     (c)  any support or opposition to any candidate; or

                     (d)  any promise of any vote, omission, support or opposition.

Penalty:  30 penalty units.

Offers of bribes

             (4)  A person commits an offence if the person gives, or promises or offers to give, any property or benefit of any kind to a person with the intention of influencing or affecting any of the following:

                     (a)  any candidature or withdrawal of candidature;

                     (b)  any vote or omission to vote;

                     (c)  any support or opposition to any candidate;

                     (d)  any promise of any vote, omission, support or opposition.

Penalty:  30 penalty units.

Acceptance of bribes

             (5)  A person commits an offence if the person asks for or obtains, or offers or agrees to ask for or obtain, any property or benefit of any kind (whether for that person or another person), on the understanding that any of the following will be influenced or affected in any way:

                     (a)  any candidature or withdrawal of candidature;

                     (b)  any vote or omission to vote;

                     (c)  any support or opposition to any candidate;

                     (d)  any promise of any vote, omission, support or opposition.

Penalty:  30 penalty units.

Secrecy of vote

             (6)  A person (the relevant person) commits an offence:

                     (a)  if the relevant person requests, requires or induces another person to show a ballot paper to the relevant person, or permits the relevant person to see a ballot paper, in such a manner that the relevant person can see the vote, while the ballot paper is being marked or after it has been marked; or

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

Penalty:  30 penalty units.

196  Death of candidate

                   In spite of anything in the rules of an organisation or branch of an organisation, where:

                     (a)  2 or more candidates are nominated for an election in relation to an office in the organisation or branch; and

                     (b)  one of those candidates dies before the close of the ballot;

the election must be discontinued and a new election held.

197  Post‑election report by AEC

Requirement for AEC to make report

             (1)  After the completion of an election conducted under this Part by the AEC, the AEC must give a written report on the conduct of the election to:

                     (a)  the Commissioner; and

                     (b)  the organisation or branch for whom the election was conducted.

Note:          The AEC may be able, in the same report, to report on more than one election it has conducted for an organisation. However, regulations made under paragraph 359(2)(c) may impose requirements about the manner and timing of reports.

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

Contents of report—register of members

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

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

                     (b)  in the case of a register kept by an organisation of employees—an unusually large proportion of members’ addresses that were workplace addresses;

this fact must be included in the report, together with a reference to any relevant model rules which, in the opinion of the AEC, could assist the organisation or branch to address this matter.

Note:          Model rules are relevant only to the conduct of elections for office, not for elections for other positions (see section 147).

Contents of report—difficult rules

             (4)  If the report identifies a rule of the organisation or branch that, in the AEC’s opinion, was difficult to interpret or apply in relation to the conduct of the election, the report must also refer to any relevant model rules, which in the opinion of the AEC, could assist the organisation or branch to address this matter.

Note:          For model rules, see section 147.

Subsection (3) relevant only for postal ballots

             (5)  Subsection (3) applies only in relation to elections conducted by postal ballot.

Note:          An organisation can obtain an exemption from the requirement to hold elections for office by postal ballot (see section 144).

198  Organisation to respond to adverse report on rules

Organisation must respond to “difficult rules” report

             (1)  If an organisation or branch is given a post‑election report under section 197 that identifies a rule that was difficult to interpret or apply, the organisation or branch must, within 30 days, give a written response to the AEC on that aspect of the report.

Civil penalty:          100 penalty units.

             (2)  The response must specify whether the organisation or branch intends to take any action in relation to the rule, and if so, what action it intends to take.

Organisation must make its response available to members

             (3)  The organisation or branch must also make available to its members the part of the report dealing with the difficult rule or rules (the relevant extract) and the organisation’s or branch’s response to it.

             (4)  The relevant extract must be made available to members no later than the day on which the response is to be made available by the organisation or branch to members.

Civil penalty:          100 penalty units.

             (5)  The response must be made available to members:

                     (a)  if the response is not to be published in the next edition of the organisation or branch journal—within 30 days after it is given to the AEC; and

                     (b)  if the response is to be so published—in the next edition.

Civil penalty:          100 penalty units.

             (6)  Without limiting the ways in which an organisation or branch may comply with subsection (3), it complies if it does all of the following:

                     (a)  publishes, in the next edition of the organisation or branch journal, a copy of the relevant extract of the report and the organisation’s response;

                     (b)  within 30 days after the day on which it gives its response to the AEC:

                              (i)  lodges with the Commissioner a copy of the relevant extract of the report and a copy of the response given to the AEC under subsection (1), together with a declaration that the organisation or branch will provide a copy of the extract and the organisation’s response to any member who so requests; and

                             (ii)  gives notice in the next edition of the organisation or branch journal, or in an appropriate newspaper, that a copy of the relevant extract of the report and the organisation’s response is available, upon request, from the organisation or branch to each member free of charge;

                     (c)  meets the requirements of any regulations made for the purposes of this subsection.

Declaration that report and response will be available

             (7)  A declaration under paragraph (6)(b) must be signed by the secretary or other prescribed officer of the organisation or branch (as the case requires).

             (8)  A person must not, in a declaration for the purposes of paragraph (6)(b), make a statement if the person knows, or is reckless as to whether, the statement is false or misleading.

Civil penalty:          100 penalty units.

Definitions

             (9)  In this section:

appropriate newspaper, in relation to an organisation or branch, means a newspaper, or newspapers, whose circulation covers the main geographical areas where members of the organisation or branch reside.

next edition, in relation to publishing a relevant extract of a post‑election report or response in a journal, means the first edition of the journal in which it is reasonably practicable for the report or the response (as the case may be) to be published.

199  Ballot papers etc. to be preserved

             (1)  In spite of anything in the rules of an organisation or a branch of an organisation, where an election for an office in the organisation or branch is conducted by the AEC, the organisation or branch, and every officer and employee of the organisation or branch who is able to do so, and the AEC, must take such steps as are necessary to ensure that all ballot papers, envelopes, lists and other documents relevant to the election are preserved and kept by the AEC for one year after the completion of the election.

             (2)  In spite of anything in the rules of an organisation or a branch of an organisation, where an election for an office in the organisation or branch is conducted by the organisation or branch, the organisation or branch, and every officer and employee of the organisation or branch who is able to do so, must take such steps as are necessary to ensure that all ballot papers, envelopes, lists and other documents relevant to the election are preserved and kept at the office of the organisation or branch, as the case may be, for one year after the completion of the election.

             (3)  An organisation or branch of an organisation commits an offence if the organisation or branch contravenes subsection (1) or (2).

Penalty:  100 penalty units.

             (4)  Subsection (3) does not apply if the organisation has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter mentioned in subsection (4), see subsection 13.3(3) of the Criminal Code.

             (5)  An officer or employee of an organisation or branch commits an offence if the officer or employee contravenes subsection (1) or (2).

Penalty:  20 penalty units.

             (6)  Subsection (5) does not apply if the officer or employee has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter mentioned in subsection (6), see subsection 13.3(3) of the Criminal Code.

             (7)  Offences against subsections (3) and (5) are offences of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

Part 3Inquiries into elections for office

  

200  Application for inquiry

When member of organisation may apply for inquiry

             (1)  If a person who is, or within the preceding period of 12 months has been, a member of an organisation claims that there has been an irregularity in relation to an election for an office in the organisation or a branch of the organisation, the person may make an application for an inquiry by the Federal Court into the matter.

Note:          For the meaning of irregularity, see section 6.

When Electoral Commissioner must apply for an inquiry

             (2)  If the Electoral Commissioner believes that the result of an election for an office has been affected by an irregularity in relation to the election, the Electoral Commissioner must make an application for an inquiry by the Federal Court into the matter.

When Electoral Commissioner may apply for an inquiry

             (3)  If the Electoral Commissioner believes that there has been an irregularity in relation to an election for an office, the Electoral Commissioner may make an application for an inquiry by the Federal Court into the matter.

Note:          This section relates only to elections for office. It does not apply to elections for positions other than offices (which can also be conducted under Part 2).

201  Instituting of inquiry

                   Where:

                     (a)  an application for an inquiry has been lodged with the Federal Court under section 200; and

                     (b)  the Court is satisfied that there are reasonable grounds for the application;

the Court must fix a time and place for conducting the inquiry, and may give such directions as it considers necessary to ensure that all persons who are or may be justly entitled to appear at the inquiry are notified of the time and place fixed and, where the Court fixes a time and place, the inquiry is taken to have been instituted.

202  Federal Court may authorise Commissioner to take certain action

             (1)  Where an application for an inquiry has been lodged with the Federal Court under section 200, the Court may authorise the Commissioner to take any action referred to in subsection (2).

             (2)  If the Commissioner is authorised for the purposes of subsection (1), he or she may take the following actions:

                     (a)  inspecting election documents;

                     (b)  for the purposes of any such inspection, entering, with such assistance as he or she considers necessary, any premises used or occupied by the organisation, or a branch of the organisation, concerned in which he or she believes election documents to be;

                     (c)  giving a written notice to a person requiring the person to deliver to him or her, within the period and in the manner specified in the notice, any election documents in the possession or under the control of the person;

                     (d)  taking possession of any election documents;

                     (e)  retaining any election documents delivered to him or her, or of which he or she has taken possession, for such period as is necessary for the purposes of the application and, if proceedings under this Part arise out of the application, until the completion of the proceedings or such earlier time as the Court orders.

             (3)  Before authorising any action under subsection (1), the Court must, if it considers that, having regard to all the circumstances, a person should be given an opportunity of objecting to the proposed action, give such an opportunity to the person.

             (4)  The period specified in a notice given under paragraph (2)(c) must specify a period of at least 14 days after the notice is given.

             (5)  A person commits an offence if the person:

                     (a)  contravenes a requirement made under paragraph (2)(c); or

                     (b)  hinders or obstructs the Commissioner, or a person acting on his or her behalf, in the exercise of powers under subsection (2).

Penalty:  30 penalty units.

             (6)  Strict liability applies to paragraph (5)(a).

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (7)  Paragraph (5)(a) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter mentioned in subsection (7), see subsection 13.3(3) of the Criminal Code.

             (8)  A person is not excused from producing an election document under this section on the ground that the production of the document might tend to incriminate the person or expose the person to a penalty.

             (9)  However:

                     (a)  producing the document; or

                     (b)  any information, document or thing obtained as a direct or indirect consequence of producing the document;

is not admissible in evidence against the person in criminal proceedings or proceedings that may expose the person to a penalty.

           (10)  In this section:

election documents, in relation to an election, means ballot papers, envelopes, lists or other documents that have been used in, or are relevant to, the election.

203  Identity cards

Issue of identity card

             (1)  The Commissioner must issue an identity card to each member of the staff assisting the Commissioner (an official) to whom powers of the Commissioner under section 202 have been delegated under section 343B.

             (2)  The identity card must:

                     (a)  be in the prescribed form; and

                     (b)  include a recent photograph of the official.

Use of identity card

             (3)  The official must carry the identity card at all times when taking action under section 202.

             (4)  Before the official takes action under paragraph 202(2)(b) (entering premises), the official must:

                     (a)  inform the occupier of the premises that the official is authorised to enter the premises; and

                     (b)  show the identity card to the occupier.

             (5)  The official is not entitled to enter premises under paragraph 202(2)(b) if he or she has not complied with subsection (4).

Offence: failing to return identity card

             (6)  A person commits an offence if:

                     (a)  the person holds or held an identity card; and

                     (b)  the person ceases to be a member of the staff assisting the Commissioner to whom powers of the Commissioner under section 202 have been delegated under section 343B; and

                     (c)  the person does not, as soon as is practicable after so ceasing, return the identity card to the Commissioner.

Penalty:  1 penalty unit.

             (7)  An offence against subsection (6) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (8)  Subsection (6) does not apply if the identity card was lost or destroyed.

Note:          A defendant bears an evidential burden in relation to the matter mentioned in subsection (8), see subsection 13.3(3) of the Criminal Code.

204  Interim orders

             (1)  Where an inquiry into an election has been instituted, the Federal Court may make one or more of the following orders:

                     (a)  an order that no further steps are to be taken in the conduct of the election or in carrying into effect the result of the election;

                     (b)  an order that a person who has assumed an office, has continued to act in an office, or claims to occupy an office, to which the inquiry relates may act, or continue to act, in the office;

                     (c)  an order that a person who has assumed an office, has continued to act in an office, or claims to occupy an office, to which the inquiry relates must not act in the office;

                     (d)  an order that a person who holds, or last held before the election, an office to which the inquiry relates may act, or continue to act, in the office;

                     (e)  where it considers that an order under paragraph (b) or (d) would not be practicable, would be prejudicial to the efficient conduct of the affairs of the organisation or would be inappropriate having regard to the nature of the inquiry, an order that a member of the organisation or another person specified in the order may act in an office to which the inquiry relates;

                      (f)  an order incidental or supplementary to an order under this subsection;

                     (g)  an order varying or discharging an order under this subsection.

             (2)  Where the Court orders that a person may act, or continue to act, in an office, the person is, while the order remains in force and in spite of anything in the rules of the organisation or a branch of the organisation, to be taken to hold the office.

             (3)  An order under this section continues in force, unless expressed to operate for a shorter period or sooner discharged, until the completion of:

                     (a)  the proceeding concerned in the Court in relation to the election; and

                     (b)  all matters ordered by the Court (otherwise than under this section) in the proceeding.

205  Procedure at hearing

             (1)  The Federal Court must allow to appear at an inquiry all persons who apply to the Court for leave to appear and who appear to the Court to have an interest in the inquiry, and the Court may order any other person to appear.

             (2)  The persons appearing, or ordered under subsection (1) to appear, at an inquiry are taken to be parties to the proceeding.

             (3)  For the purposes of this Part:

                     (a)  the procedure of the Court is, subject to this Act and the Rules of Court, within the discretion of the Court; and

                     (b)  the Court is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it considers just.

206  Action by Federal Court

             (1)  At an inquiry, the Federal Court must inquire into and determine the question whether an irregularity has happened in relation to the election, and such further questions concerning the conduct and results of the election as the Court considers necessary.

             (2)  For the purposes of subsection (1), the Court must determine whether an irregularity has happened on the balance of probabilities.

             (3)  In the course of conducting an inquiry, the Court may make such orders (including an order for the recounting of votes) as the Court considers necessary.

             (4)  If the Court finds that an irregularity has happened, the Court may, subject to subsection (5), make one or more of the following orders:

                     (a)  an order declaring the election, or any step in relation to the election, to be void;

                     (b)  an order declaring a person purporting to have been elected not to have been elected, and declaring another person to have been elected;

                     (c)  an order directing the Commissioner to make arrangements:

                              (i)  in the case of an uncompleted election—for a step in relation to the election (including the calling for nominations) to be taken again and for the uncompleted steps in the election to be taken; or

                             (ii)  in the case of a completed election—for a step in relation to the election (including the calling for nominations) to be taken again or a new election to be held;

                     (d)  an order (including an order modifying the operation of the rules of the organisation to the extent necessary to enable a new election to be held, a step in relation to an election to be taken again or an uncompleted step in an election to be taken) incidental or supplementary to, or consequential on, any other order under this section.

             (5)  The Court must not declare an election, or any step taken in relation to an election, to be void, or declare that a person was not elected, unless the Court is of the opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have happened or may happen, the result of the election may have been affected, or may be affected, by irregularities.

             (6)  Without limiting the power of the Court to terminate a proceeding before it, the Court may, at any time after it begins an inquiry into an election, terminate the inquiry or the inquiry to the extent that it relates to specified matters.

207  Commissioner to make arrangements for conduct of elections etc.

                   Where the Federal Court makes an order under paragraph 206(4)(c) in relation to an election, the Commissioner must arrange for the taking of the necessary steps in relation to the election, or for the conduct of the new election, as the case requires, by the AEC.

208  Enforcement of orders

                   The Federal Court may grant such injunctions (including mandatory injunctions) as it considers necessary for the effective performance of its functions and the enforcement of its orders under this Part.

209  Validity of certain acts etc. where election declared void

             (1)  Where the Federal Court declares void the election of a person who has, since the election, purported to act in the office to which the person purported to have been elected, or declares such a person not to have been elected:

                     (a)  subject to a declaration under paragraph (b), all acts done by or in relation to the person that could validly have been done by or in relation to the person if the person had been duly elected are valid; and

                     (b)  the Court may declare an act referred to in paragraph (a) to have been void, and, if the Court does so, the act is taken not to have been validly done.

             (2)  Where an election is held, or a step in relation to an election is taken, under an order of the Court, the election or step is not invalid merely because of a departure from the rules of the organisation or branch concerned that was required by the order of the Court.

Part 4Disqualification from office

Division 1Simplified outline of Part

210  Simplified outline

This Part imposes certain limitations and requirements on people who hold, or wish to hold, office in an organisation and who have been convicted of a prescribed offence (see Division 2).

Division 2Persons who have been convicted of a prescribed offence

211  Simplified outline of Division

This Division imposes certain limitations and requirements on people who hold, or wish to hold, office in an organisation and who have been convicted of a prescribed offence.

Section 215 sets out the basic limitation for people convicted of a prescribed offence. The remaining sections in this Division deal with the ways the rule in section 215 operates and may be modified.

212  Meaning of prescribed offence

                   In this Division, a prescribed offence is:

                     (a)  an offence under a law of the Commonwealth, a State or Territory, or another country, involving fraud or dishonesty and punishable on conviction by imprisonment for a period of 3 months or more; or

                     (b)  an offence against section 51, 72, 105, 185, 191, subsection 193(2), section 194, 195, 199, subsection 202(5) or section 290A or 337BE; or

                     (c)  any other offence in relation to the formation, registration or management of an association or organisation; or

                     (d)  any other offence under a law of the Commonwealth, a State or Territory, or another country, involving the intentional use of violence towards another person, the intentional causing of death or injury to another person or the intentional damaging or destruction of property.

213  Meaning of convicted of a prescribed offence

                   For the purposes of this Division, a person:

                     (a)  is convicted of a prescribed offence whether the person is convicted before or after the commencement of this Part; and

                     (b)  is not convicted of a prescribed offence merely because the person is convicted, otherwise than on indictment, of an offence referred to in paragraph 212(c); and

                     (c)  is not convicted of a prescribed offence referred to in paragraph 212(d) unless the person was sentenced to a term of imprisonment for the offence and either:

                              (i)  the person has served, or is serving, a term of imprisonment for the offence; or

                             (ii)  the sentence is suspended for a period.

Note:          Other terms used in this Part may be defined in section 6.

213A  Meaning of exclusion period and reduced exclusion period

             (1)  For the purposes of this Division, the exclusion period in relation to a person who has been convicted of a prescribed offence means a period of 5 years beginning on the latest of the following days:

                     (a)  the day on which the person was convicted of the prescribed offence;

                     (b)  if the person was sentenced to a term of imprisonment for the offence, the sentence was suspended for a period, and the person is not imprisoned for the offence during the period—the day immediately after the end of the period;

                     (c)  if the person serves a term of imprisonment for the offence—the day on which the person is released from prison.

             (2)  For the purposes of this Division, a reduced exclusion period means a period specified by the Federal Court for the purposes of subparagraph 215(1)(a)(ii) under paragraph 216(2)(b) or 217(2)(b).

214  Certificate of registrar etc. is evidence of facts

             (1)  A certificate purporting to be signed by the registrar or other proper officer of a federal court, a court of a State or Territory, or a court of another country, stating that a person was convicted by the court of a specified offence on a specified day is, for the purpose of an application made under section 215, 216 or 217, evidence that the person was convicted of the offence on that day.

             (2)  A certificate purporting to be signed by the registrar or other proper officer of a federal court, a court of a State or Territory, or a court of another country, stating that a person was acquitted by the court of a specified offence, or that a specified charge against the person was dismissed by the court, is, for the purpose of an application made under section 215, 216 or 217, evidence of the facts stated in the certificate.

             (3)  A certificate purporting to be signed by the officer in charge of a prison stating that a person was released from the prison on a specified day is, for the purpose of an application made under section 215, 216 or 217, evidence that the person was released from the prison on that day.

             (4)  A certificate purporting to be signed by the registrar or other proper officer of a federal court, a court of a State or Territory, or a court of another country, stating that the sentence of a person who was convicted of a specified offence has been suspended for a specified period is, for the purpose of an application made under section 215, 216 or 217, evidence that the sentence was suspended for that period.

215  Certain persons disqualified from holding office in organisations

             (1)  A person who has been convicted of a prescribed offence is not eligible to be a candidate for an election, or to be elected or appointed, to an office in an organisation unless:

                     (a)  on an application made under section 216 or 217 in relation to the conviction of the person for the prescribed offence:

                              (i)  the person was granted leave to hold office in organisations; or

                             (ii)  the person was refused leave to hold office in organisations but, under paragraph 216(2)(b) or 217(2)(b), the Federal Court specified a reduced exclusion period, and that period has elapsed; or

                     (b)  in any other case—the exclusion period has elapsed.

             (2)  Where a person who holds an office in an organisation is convicted of a prescribed offence, the person ceases to hold the office at the end of the period of 28 days after the conviction unless, within the period, the person makes an application to the Federal Court under section 216 or 217.

             (3)  If a person who holds an office in an organisation makes an application to the Federal Court under section 216 or 217 and the application is not determined:

                     (a)  except in a case to which paragraph (b) applies—within the period of 3 months after the date of the application; or

                     (b)  if the Court, on application by the person, has extended the period—within that period as extended;

the person ceases to hold the office at the end of the period of 3 months or the period as extended, as the case may be.

             (4)  The Court must not, under paragraph (3)(b), extend a period for the purposes of subsection (3) unless:

                     (a)  the application for the extension is made before the end of the period of 3 months referred to in paragraph (3)(a); or

                     (b)  if the Court has previously extended the period under paragraph (3)(b)—the application for the further extension is made before the end of the period as extended.

             (5)  An organisation, a member of an organisation or the Commissioner may apply to the Federal Court for a declaration whether, because of the operation of this section or section 216 or 217:

                     (a)  a person is not, or was not, eligible to be a candidate for election, or to be elected or appointed, to an office in the organisation; or

                     (b)  a person has ceased to hold an office in the organisation.

             (6)  The granting to a person, on an application made under section 216 or 217 in relation to a conviction of the person for a prescribed offence, of leave to hold offices in organisations does not affect the operation of this section or section 216 or 217 in relation to another conviction of the person for a prescribed offence.

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

             (1)  A person who:

                     (a)  wants to be a candidate for election, or to be appointed, to an office in an organisation; and

                     (b)  within the immediately preceding 5 years:

                              (i)  has been convicted of a prescribed offence; or

                             (ii)  has been released from prison after serving a term of imprisonment in relation to a conviction for a prescribed offence; or

                            (iii)  has completed a suspended sentence in relation to a conviction for a prescribed offence;

may, subject to subsection (4), apply to the Federal Court for leave to hold office in organisations.

             (2)  Where a person makes an application under subsection (1), the Court may:

                     (a)  grant the person leave to hold office in organisations; or

                     (b)  refuse the person leave to hold office in organisations and specify, for the purposes of subsection 215(1), a period of less than 5 years beginning on the latest of the following days:

                              (i)  the day on which the person was convicted of the prescribed offence;

                             (ii)  if the person was sentenced to a term of imprisonment for the offence, the sentence was suspended for a period, and the person is not imprisoned for the offence during the period—the day immediately after the end of the period;

                            (iii)  if the person serves a term of imprisonment for the offence—the day on which the person is released from prison.

                     (c)  refuse a person leave to hold office in organisations.

             (3)  A person who:

                     (a)  holds an office in an organisation; and

                     (b)  is convicted of a prescribed offence; and

                     (c)  on an application made under subsection (1) in relation to the conviction for the prescribed offence, is, under paragraph (2)(b) or (c), refused leave to hold office in organisations;

ceases to hold the office in the organisation.

             (4)  A person is not entitled to make an application under this section in relation to the person’s conviction for a prescribed offence if the person has previously made an application under this section or under section 217 in relation to the conviction.

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

             (1)  Where a person who holds an office in an organisation is convicted of a prescribed offence, the person may, subject to subsection (4), within 28 days after the conviction, apply to the Federal Court for leave to hold office in organisations.

             (2)  Where a person makes an application under subsection (1) for leave to hold office in organisations, the Court may:

                     (a)  grant the person leave to hold office in organisations; or

                     (b)  refuse the person leave to hold office in organisations and specify, for the purposes of subsection 215(1), a period of less than 5 years beginning on the latest of the following days:

                              (i)  the day on which the person was convicted of the prescribed offence;

                             (ii)  if the person was sentenced to a term of imprisonment for the offence, the sentence was suspended for a period, and the person is not imprisoned for the offence during the period—the day immediately after the end of the period;

                            (iii)  if the person serves a term of imprisonment for the offence—the day on which the person is released from prison.

                     (c)  refuse the person leave to hold office in organisations.

             (3)  A person who, on an application made under subsection (1), is, under paragraph (2)(b) or (c), refused leave to hold office in organisations ceases to hold the office concerned.

             (4)  A person is not entitled to make an application under this section in relation to the person’s conviction for a prescribed offence if the person has previously made an application under this section or section 216 in relation to the conviction.

218  Federal Court to have regard to certain matters

                   For the purposes of exercising the power under section 216 or 217 to grant or refuse leave, to a person who has been convicted of a prescribed offence, to hold office in organisations, the Federal Court must have regard to:

                     (a)  the nature of the prescribed offence; and

                     (b)  the circumstances of, and the nature of the person’s involvement in, the commission of the prescribed offence; and

                     (c)  the general character of the person; and

                     (d)  the fitness of the person to be involved in the management of organisations, having regard to the conviction for the prescribed offence; and

                     (e)  any other matter that, in the Court’s opinion, is relevant.

219  Action by Federal Court

             (1)  The Federal Court may, in spite of anything in the rules of any organisation concerned, make such order to give effect to a declaration made under subsection 215(5) as it considers appropriate.

             (2)  Where an application is made to the Court under subsection 215(5):

                     (a)  the person whose eligibility, or whose holding of office, is in question must be given an opportunity of being heard by the Court; and

                     (b)  if the application is made otherwise than by the organisation concerned—the organisation must be given an opportunity of being heard by the Court.

             (3)  Where an application is made to the Court under section 216 or 217, the organisation concerned must be given an opportunity of being heard by the Court.

220  Part not to affect spent convictions scheme

                   Nothing in this Part affects the operation of Part VIIC of the Crimes Act 1914 (which includes provisions relieving persons from requirements to disclose spent convictions).

Chapter 8Records and accounts

Part 1Simplified outline of Chapter

  

229  Simplified outline

This Chapter deals with records that must be kept by organisations, and imposes obligations in relation to organisations’ financial affairs.

Part 2 requires an organisation to keep membership records and lists of office‑holders. Copies of these must be lodged with the Commissioner. Details of some types of loans, grants and donations made by the organisation must also be lodged with the Commissioner.

Part 3 sets out the requirements that are placed on organisations in relation to financial records, accounting and auditing.

Part 4 deals with access to organisations’ books.

Part 2Records to be kept and lodged by organisations

  

230  Records to be kept and lodged by organisations

             (1)  An organisation must keep the following records:

                     (a)  a register of its members, showing the name and postal address of each member and showing whether the member became a member under an agreement entered into under rules made under subsection 151(1);

                     (b)  a list of the offices in the organisation and each branch of the organisation;

                     (c)  a list of the names, postal addresses and occupations of the persons holding the offices;

                     (d)  such other records as are prescribed.

Civil penalty:          60 penalty units.

             (2)  An organisation must:

                     (a)  enter in the register of its members the name and postal address of each person who becomes a member, within 28 days after the person becomes a member;

                     (b)  remove from that register the name and postal address of each person who ceases to be a member under section 171A, or under the rules of the organisation, within 28 days after the person ceases to be a member; and

                     (c)  enter in that register any change in the particulars shown on the register, within 28 days after the matters necessitating the change become known to the organisation.

Note:          An organisation may also be required to make alterations to the register of its members under other provisions of this Act (see, for example, sections 170 and 172).

Civil penalty:          60 penalty units.

231  Certain records to be held for 7 years

             (1)  An organisation must keep a copy of its register of members as it stood on 31 December in each year. The organisation must keep the copy for the period of 7 years after the 31 December concerned.

Civil penalty:          60 penalty units.

             (2)  The regulations may provide that an organisation must also keep a copy of the register, or a part of the register, as it stood on a prescribed day. The organisation must keep the copy for the period of 7 years after the prescribed day.

Civil penalty:          60 penalty units.

232  Offence to interfere with register or copy

             (1)  A person commits an offence if:

                     (a)  the person does an act; and

                     (b)  the act results in the destruction or defacement of, or other interference with, a register of members or a copy of such a register; and

                     (c)  either:

                              (i)  the register of members is required to be kept by an organisation under paragraph 230(1)(a); or

                             (ii)  the copy is required to be kept by an organisation under section 231.

Penalty:  20 penalty units.

             (2)  Strict liability applies to paragraph (1)(c).

Note:          For strict liability, see section 6.1 of the Criminal Code.

233  Obligation to lodge information with the Commissioner

             (1)  An organisation must lodge with the Commissioner once in each year, at such time as is prescribed:

                     (a)  a declaration signed by the secretary or other prescribed officer of the organisation certifying that the register of its members has, during the immediately preceding calendar year, been kept and maintained as required by paragraph 230(1)(a) and subsection 230(2); and

                     (b)  a copy of the records required to be kept under paragraphs 230(1)(b), (c) and (d), certified by declaration by the secretary or other prescribed officer of the organisation to be a correct statement of the information contained in those records.

Civil penalty:          60 penalty units.

             (2)  An organisation must, within the prescribed period, lodge with the Commissioner notification of any change made to the records required to be kept under paragraphs 230(1)(b), (c) and (d), certified by declaration signed by the secretary or other prescribed officer of the organisation to be a correct statement of the changes made.

Civil penalty:          60 penalty units.

             (3)  A person must not, in a declaration for the purposes of this section, make a statement if the person knows, or is reckless as to whether, the statement is false or misleading.

Civil penalty:          100 penalty units.

234  Storage of records

             (1)  Subject to subsections (2) and (5), the records kept by an organisation under sections 230 and 231 must be kept at the office of the organisation.

             (2)  A record referred to in subsection (1) may, so far as it relates to a branch of the organisation, be kept in a separate part or section at the office of the branch.

             (3)  An organisation may apply to the Commissioner for permission to keep the whole or a specified part of a record referred to in subsection (1) at specified premises instead of at the office of the organisation or branch.

             (4)  The Commissioner may, by signed instrument, grant the permission if the Commissioner is satisfied that the record or the specified part of the record:

                     (a)  will be under the effective control of the organisation or branch; and

                     (b)  will, in the case of a register of members, be available for inspection in accordance with section 235.

             (5)  While a permission under subsection (4) is in force, a record referred to in the permission may, to the extent specified in the permission, be kept at the premises specified in the permission.

235  Commissioner may authorise access to certain records

             (1)  A person (the authorised person) authorised by the Commissioner may inspect, and make copies of, or take extracts from, the records kept by an organisation under sections 230 and 231 (the records) at such times as the Commissioner specifies.

             (2)  An organisation must cause its records to be available, at all relevant times, for the purposes of subsection (1) to the authorised person.

Civil penalty:          60 penalty units.

             (3)  Without limiting the ways in which an organisation can comply with subsection (2), it complies if it makes the records available to the authorised person in a form agreed to by the authorised person.

Note:          For example, the authorised person could agree to the organisation providing him or her with a hard copy or with a floppy disk, or to transmitting a copy of the register (or the relevant part) to a specified email address.

236  Commissioner may direct organisation to deliver copy of records

Register kept under section 230

             (1)  Where:

                     (a)  a member of an organisation requests the Commissioner to give a direction under this subsection; and

                     (b)  the Commissioner is satisfied:

                              (i)  that the member has been refused access to the register required to be kept under section 230, or part of it, at the office or premises where the register or part is kept; or

                             (ii)  that there are other grounds for giving a direction under this subsection;

the Commissioner may direct the organisation to deliver to the Commissioner a copy of the relevant records certified by declaration by the secretary or other prescribed officer of the organisation to be, as at a day specified in the certificate that is not more than 28 days before the first‑mentioned day, a correct statement of the information contained in the register, for the member to inspect at a specified registry, and the organisation must comply with the direction.

Civil penalty:          60 penalty units.

Copy kept under section 231

             (2)  Where:

                     (a)  a member of an organisation requests the Commissioner to give a direction under this subsection; and

                     (b)  the Commissioner is satisfied that:

                              (i)  the member has been refused access to the copy of the register required to be kept under section 231; and

                             (ii)  the member has reasonable grounds for seeking access to the copy;

the Commissioner may direct the organisation to deliver to the Commissioner a copy of the copy, and the organisation must comply with the direction.

Civil penalty:          60 penalty units.

             (3)  A direction of the Commissioner given under this section must be in writing and must specify the period within which the relevant copy must be delivered to the Commissioner. The period must not be less than 14 days after the direction is given.

             (4)  A copy of a record delivered under subsection (1) or (2) may be in the form of a hard copy or, if the Commissioner agrees, in electronic form.

             (5)  Where the Commissioner receives a copy of a document from an organisation under this section, the Commissioner may, if the Commissioner considers it appropriate in the circumstances, provide a copy of that document to a member of the organisation.

237  Organisations to notify particulars of loans, grants and donations

             (1)  An organisation must, within 90 days after the end of each financial year (or such longer period as the Commissioner allows), lodge with the Commissioner a statement showing the relevant particulars in relation to each loan, grant or donation of an amount exceeding $1,000 made by the organisation during the financial year.

Civil penalty:          100 penalty units.

             (2)  A statement lodged with the Commissioner under subsection (1) must be signed by an officer of the organisation.

             (3)  An organisation must not, in a statement under subsection (1), make a statement if the person knows, or is reckless as to whether, the statement is false or misleading.

Civil penalty:          100 penalty units.

             (4)  A statement lodged with the Commissioner under subsection (1) may be inspected, during office hours, by a member of the organisation concerned.

             (5)  The relevant particulars, in relation to a loan made by an organisation, are:

                     (a)  the amount of the loan; and

                     (b)  the purpose for which the loan was required; and

                     (c)  the security given in relation to the loan; and

                     (d)  except where the loan was made to relieve a member of the organisation, or a dependant of a member of the organisation, from severe financial hardship—the name and address of the person to whom the loan was made and the arrangements made for the repayment of the loan.

             (6)  The relevant particulars, in relation to a grant or donation made by an organisation, are:

                     (a)  the amount of the grant or donation; and

                     (b)  the purpose for which the grant or donation was made; and

                     (c)  except where the grant or donation was made to relieve a member of the organisation, or a dependant of a member of the organisation, from severe financial hardship—the name and address of the person to whom the grant or donation was made.

             (7)  Where an organisation is divided into branches:

                     (a)  this section applies in relation to the organisation as if loans, grants or donations made by a branch of the organisation were not made by the organisation; and

                     (b)  this section applies in relation to each of the branches as if the branch were itself an organisation.

             (8)  For the purposes of the application of this section in accordance with subsection (7) in relation to a branch of an organisation, the members of the organisation constituting the branch are taken to be members of the branch.

Part 3Accounts and audit

Division 1Preliminary

238  Simplified outline

This Part sets out the requirements that are placed on organisations in relation to financial records, accounting and auditing.

It provides for reports to be provided on the basis of reporting units. A reporting unit may be the whole of an organisation or one or more branches of an organisation.

Division 2 provides for the reporting units.

Division 3 sets out the accounting obligations for reporting units.

Division 4 provides for auditors to be appointed and sets out the powers and duties of the auditors and the duties that others have in relation to auditors.

Division 5 sets out the reporting requirements that reporting units must comply with.

Division 6 provides for reduced reporting requirements to apply in particular cases.

Division 7 provides for members’ access to the financial records of reporting units.

239  Part only applies to financial years starting after registration

                   This Part does not apply, in relation to an association that becomes registered as an organisation under this Act, in relation to any financial year before the first financial year of the organisation that begins after the date of registration.

240  Financial years—change in financial year

                   Where the rules of an organisation change the period constituting the financial year of the organisation, the period between:

                     (a)  the commencement of the first financial year after the change; and

                     (b)  the end of the preceding financial year;

is to be taken, for the purposes of this Part, to be a financial year.

241  Exemptions from certain Australian Accounting Standards

             (1)  The Commissioner may, by written notice, determine that particular Australian Accounting Standards do not apply in relation to an organisation or to a class of organisations.

             (2)  In deciding whether to determine that a particular Australian Accounting Standard does not apply in relation to an organisation or organisations, the Commissioner is to have regard to the cost to the organisation or organisations of complying with the standard and the information needs of the members of the organisation or organisations.

Division 2Reporting units

242  What is a reporting unit?

             (1)  The requirements of this Part apply in relation to reporting units. A reporting unit may be the whole of an organisation or a part of an organisation.

Organisations not divided into branches

             (2)  Where an organisation is not divided into branches, the reporting unit is the whole of the organisation.

Organisations divided into branches

             (3)  Where an organisation is divided into branches, each branch will be a reporting unit unless a certificate issued by the General Manager stating that the organisation is, for the purpose of compliance with this Part, divided into reporting units on an alternative basis (see section 245) is in force.

             (4)  The alternative reporting units are:

                     (a)  the whole of the organisation; or

                     (b)  a combination of 2 or more branches of the organisation.

Each branch of an organisation must be in one, and only one, reporting unit.

             (5)  For the purposes of this Part, so much of an organisation that is divided into branches as would not, apart from this subsection, be included in any branch, is taken to be a branch of the organisation.

243  Designated officers

A designated officer is an officer of:

                     (a)  in the case of a reporting unit that is the whole of an organisation—the organisation; or

                     (b)  in any other case—a branch, or one of the branches, that constitutes the reporting unit;

who, under the rules of the reporting unit, is responsible (whether alone or with others) for undertaking the functions necessary to enable the reporting unit to comply with this Part.

244  Members, staff and journals etc. of reporting units

             (1)  For the purposes of the application of this Part in relation to a reporting unit that is the whole of an organisation:

                     (a)  the members of the organisation are taken to be members of the reporting unit; and

                     (b)  employees of the organisation are taken to be employees of the reporting unit; and

                     (c)  the rules of the organisation are taken to be the rules of the reporting unit; and

                     (d)  the financial affairs and records of the organisation are taken to be the financial affairs and records of the reporting unit; and

                     (e)  conduct and activities of the organisation are taken to be conduct and activities of the reporting unit; and

                      (f)  a journal published by the organisation is taken to be a journal published by the reporting unit.

             (2)  For the purposes of the application of this Part in relation to a reporting unit that is not the whole of an organisation:

                     (a)  the members of the organisation constituting the branch or branches that make up the reporting unit are taken to be members of the reporting unit; and

                     (b)  employees of the organisation employed in relation to the branch or branches that make up the reporting unit (whether or not they are also employed in relation to any other branch) are taken to be employees of the reporting unit; and

                     (c)  if the reporting unit consists of one branch—the rules of the branch are taken to be the rules of the reporting unit; and

                     (d)  if the reporting unit consists of more than one branch—the rules of the branches (including any rules certified under section 246, or determined under section 247, for the purpose of giving effect to the establishment of the reporting unit) are taken to be the rules of the reporting unit; and

                     (e)  the financial affairs and records of the branch or branches that make up the reporting unit are taken to be the financial affairs and records of the reporting unit; and

                      (f)  conduct and activities of the branch or branches that make up the reporting unit are taken to be conduct and activities of the reporting unit; and

                     (g)  if the reporting unit consists of one branch—a journal published by the branch is taken to be a journal published by the reporting unit; and

                     (h)  a journal published by the organisation is taken to be a journal published by the reporting unit.

245  Determination of reporting units

             (1)  The General Manager may issue to an organisation that is divided into branches a certificate stating that the organisation is, for the purpose of compliance with this Part, to be divided into reporting units on an alternative basis (as mentioned in subsection 242(3)).

             (2)  A certificate may be issued on application by an organisation or at the initiative of the General Manager.

246  Determination of reporting units—application by organisation

             (1)  An application by an organisation for a certificate under section 245 must:

                     (a)  be in accordance with the regulations; and

                     (b)  include an application for the General Manager to certify such alterations to the rules of the organisation as are required to give effect to the establishment of the proposed reporting units.

Note:          Examples of the alterations that may be required are:

(a)    alterations to designate officers from the branches to be the committee of management for the reporting unit for the purpose of complying with this Part; and

(b)    alterations to designate officers from the branches to undertake such duties as are necessary for the purpose of enabling the reporting unit to comply with this Part.

             (2)  Where an organisation applies for a certificate, the General Manager must issue the certificate and certify the rule alterations if the General Manager is satisfied that:

                     (a)  the level of financial information that would be available to members under the proposed division into reporting units would be adequate and would be relevant to them; and

                     (b)  the alterations to the rules:

                              (i)  comply with, and are not contrary to, this Act, the Fair Work Act, modern awards or enterprise agreements; and

                             (ii)  are not otherwise contrary to law; and

                            (iii)  have been made under the rules of the organisation.

             (3)  In satisfying himself or herself as mentioned in paragraph (2)(a), the General Manager must consult with the Commissioner.

247  Determination of reporting units—General Manager initiative

             (1)  The General Manager may only issue a certificate under section 245 on his or her initiative if the General Manager:

                     (a)  is satisfied that, to improve compliance with the accounting, auditing and reporting requirements of this Part, it is most appropriate for the organisation to be divided into reporting units on the basis set out in the certificate; and

                     (b)  is satisfied that the level of financial information that would be available to members under the proposed division into reporting units would be adequate and would be relevant to them; and

                     (c)  has complied with the prescribed procedure.

          (1A)  In satisfying himself or herself as mentioned in paragraphs (1)(a) and (b), the General Manager must consult with the Commissioner.

             (2)  Where, in the General Manager’s opinion, the rules of an organisation need to be altered to give effect to the establishment of the proposed reporting units under subsection (1), the General Manager may, by instrument, after giving the organisation an opportunity, as prescribed, to be heard on the matter, determine such alterations of the rules as are, in the General Manager’s opinion, necessary to give effect to the establishment of the proposed reporting units.

248  Determination of reporting units—years certificate applies to

                   A certificate issued under section 245 is in force, and has effect according to its terms, in relation to:

                     (a)  the first financial year starting after the certificate is issued; and

                     (b)  each subsequent financial year unless, before the start of the financial year, the certificate is revoked under section 249.

249  Determination of reporting units—revocation of certificates

             (1)  The General Manager may at any time, by written notice, revoke a certificate issued to an organisation under section 245.

             (2)  If a certificate is revoked, each branch will be a reporting unit.

             (3)  A certificate may be revoked on application by an organisation or at the initiative of the General Manager.

             (4)  An application by an organisation for the revocation of a certificate must:

                     (a)  be in accordance with the regulations; and

                     (b)  include an application for the General Manager to certify such alterations to the rules of the organisation as are required to give effect to each branch being a reporting unit.

             (5)  Where an organisation applies for a revocation, the General Manager must revoke the certificate and certify the rule alterations if the General Manager is satisfied that:

                     (a)  the level of financial information that would be available to members with each branch being a reporting unit would be adequate and would be relevant to them; and

                     (b)  the alterations to the rules:

                              (i)  comply with, and are not contrary to, this Act, the Fair Work Act, modern awards or enterprise agreements; and

                             (ii)  are not otherwise contrary to law; and

                            (iii)  have been made under the rules of the organisation.

          (5A)  In satisfying himself or herself as mentioned in paragraph (5)(a), the General Manager must consult with the Commissioner.

             (6)  The General Manager may only revoke a certificate on his or her initiative if the General Manager:

                     (a)  is satisfied that, to improve compliance with the accounting, auditing and reporting requirements of this Part, it is most appropriate for each branch to be a reporting unit; and

                     (b)  has complied with the prescribed procedure.

          (6A)  In satisfying himself or herself as mentioned in paragraph (6)(a), the General Manager must consult with the Commissioner.

             (7)  Where:

                     (a)  the General Manager intends to revoke a certificate on his or her own initiative; and

                     (b)  in the General Manager’s opinion, the rules of an organisation need to be altered to give effect to each branch being a reporting unit;

the General Manager may, by instrument, after giving the organisation an opportunity, as prescribed, to be heard on the matter, determine such alterations of the rules as are, in the General Manager’s opinion, necessary to give effect to each branch being a reporting unit.

250  Determination of reporting units—rule alterations

             (1)  An alteration to rules under section 246, 247 or 249 takes effect on the day that it is certified or determined.

             (2)  To avoid doubt, changes in rules under those sections may include changes to the duties of an office (even if during a particular term of office).

251  Determination of reporting units—later certificate revokes earlier certificate

                   A certificate issued to an organisation under section 245 is taken to be revoked if a later certificate is issued to the organisation under section 245.

Division 3Accounting obligations

Subdivision AGeneral obligations

252  Reporting unit to keep proper financial records

             (1)  A reporting unit must:

                     (a)  keep such financial records as correctly record and explain the transactions and financial position of the reporting unit, including such records as are prescribed; and

                     (b)  keep its financial records in such a manner as will enable a general purpose financial report to be prepared from them under section 253; and

                     (c)  keep its financial records in such a manner as will enable the accounts of the reporting unit to be conveniently and properly audited under this Part.

             (2)  Where an organisation consists of 2 or more reporting units, the financial records for each of the reporting units must, as far as practicable, be kept in a consistent manner.

Note 1:       This would involve, for example, the adoption of consistent accounting policies and a common chart of accounts for all reporting units in the organisation.

Note 2:       This requirement is subject to subsection (4) which allows reporting units to keep some records on a cash basis.

             (3)  Financial records of an organisation may, so far as they relate to the income and expenditure of the organisation, be kept on a cash basis or accrual basis, at the option of the organisation.

             (4)  If an organisation keeps the financial records referred to in subsection (1) on an accrual basis, it may keep the financial records for its membership subscriptions separately on a cash basis.

             (5)  An organisation must retain the financial records kept under subsection (1) for a period of 7 years after the completion of the transactions to which they relate.

253  Reporting unit to prepare general purpose financial report

             (1)  As soon as practicable after the end of each financial year, a reporting unit must cause a general purpose financial report to be prepared, in accordance with the Australian Accounting Standards, from the financial records kept under subsection 252(1) in relation to the financial year.

             (2)  The general purpose financial report must consist of:

                     (a)  financial statements containing:

                              (i)  a profit and loss statement, or other operating statement; and

                             (ii)  a balance sheet; and

                            (iii)  a statement of cash flows; and

                            (iv)  any other statements required by the Australian Accounting Standards; and

                     (b)  notes to the financial statements containing:

                              (i)  notes required by the Australian Accounting Standards; and

                             (ii)  information required by the reporting guidelines (see section 255); and

                     (c)  any other reports or statements required by the reporting guidelines (see section 255).

             (3)  The financial statements and notes for a financial year must give a true and fair view of the financial position and performance of the reporting unit. This subsection does not affect the obligation for a financial report to comply with the Australian Accounting Standards.

Note 1:       The Australian Accounting Standards may be modified for the purposes of this Act by the regulations.

Note 2:       If the financial statements and notes prepared in compliance with the Australian Accounting Standards would not give a true and fair view, additional information must be included in the notes to the financial statements under paragraph (2)(b).

             (4)  A reporting unit must not contravene this section.

Civil penalty:          100 penalty units.

254  Reporting unit to prepare operating report

             (1)  As soon as practicable after the end of each financial year, the committee of management of a reporting unit must cause an operating report to be prepared in relation to the financial year.

             (2)  The operating report must:

                     (a)  contain a review of the reporting unit’s principal activities during the year, the results of those activities and any significant changes in the nature of those activities during the year; and

                     (b)  give details of any significant changes in the reporting unit’s financial affairs during the year; and

                     (c)  give details of the right of members to resign from the reporting unit under section 174; and

                     (d)  give details (including details of the position held) of any officer or member of the reporting unit who is:

                              (i)  a trustee of a superannuation entity or an exempt public sector superannuation scheme; or

                             (ii)  a director of a company that is a trustee of a superannuation entity or an exempt public sector superannuation scheme; and

                            where a criterion for the officer or member being the trustee or director is that the officer or member is an officer or member of a registered organisation; and

                     (e)  contain any other information that the reporting unit considers is relevant; and

                      (f)  contain any prescribed information.

             (3)  To avoid doubt, the operating report may be prepared by the committee of management or a designated officer.

             (4)  A reporting unit must not contravene this section.

Civil penalty:          100 penalty units.

Subdivision BReporting guidelines

255  Reporting guidelines

             (1)  The Commissioner must, by written determination published in the Gazette, issue reporting guidelines for the purposes of sections 253 and 270.

             (2)  The reporting guidelines for the purposes of section 253 must provide:

                     (a)  the manner in which reporting units must disclose the total amount paid by the reporting unit during a financial year to employers as consideration for the employers making payroll deductions of membership subscriptions; and

                     (b)  the manner in which reporting units must disclose the total amount of legal costs and other expenses related to litigation or other legal matters paid by the reporting unit during a financial year; and

                     (c)  details of any information required for the purposes of subparagraph 253(2)(b)(ii) (information in notes to general purpose financial reports); and

                     (d)  the form and content of any reports or statements that are required for the purposes of paragraph 253(2)(c) (other reports or statements forming part of the general purpose financial reports).

          (2A)  The reporting guidelines for the purposes of section 253 and 270 must require a report that shows the total expenditure incurred by reporting units during the financial year in relation to each of the following:

                     (a)  remuneration, and other employment‑related costs and expenses, in respect of employees;

                     (b)  advertising;

                     (c)  operating costs;

                     (d)  donations to political parties;

                     (e)  legal costs.

Note:          The total expenditure may be shown in diagrammatic form, such as a pie chart.

             (3)  The reporting guidelines for the purposes of section 270 must provide:

                     (a)  the manner in which reporting units must disclose the total amount paid by the reporting unit during a financial year to employers as consideration for the employers making payroll deductions of membership subscriptions; and

                     (b)  details of the form and content of the general purpose financial report to be prepared under subsection 270(4).

             (4)  Reporting guidelines may also contain such other requirements in relation to the disclosure of information by reporting units as the Commissioner considers appropriate.

             (5)  Section 604 of the Fair Work Act does not apply in relation to reporting guidelines or the issuing of reporting guidelines.

Division 4Auditors

Subdivision ARegistration of auditors

255A  Applications may be made for registration as an auditor

             (1)  A person may apply in writing to the Commissioner for registration as an auditor.

             (2)  An application under subsection (1) must:

                     (a)  be in a form approved by the Commissioner; and

                     (b)  if the person is a registered company auditor—include evidence of that status; and

                     (c)  if the person is not a registered company auditor—contain the information required by the regulations.

255B  Registration by Commissioner

             (1)  This section applies if a person has made an application under subsection 255A(1) for registration as an auditor.

             (2)  If the person is a registered company auditor, the Commissioner must, subject to section 255E, grant the application and register the person as an auditor.

             (3)  If the person is not a registered company auditor, the Commissioner must, subject to section 255E, grant the application and register the person as an auditor if the Commissioner is satisfied that:

                     (a)  the person meets the requirements of subsection 255C(1) or (2) (educational qualifications, or equivalent qualifications and experience); and

                     (b)  the person has either:

                              (i)  satisfied all the components of an auditing competency standard approved by the Australian Securities and Investments Commission under section 1280A of the Corporations Act 2001; or

                             (ii)  had such practical experience in auditing as is prescribed by the regulations for the purposes of this paragraph; and

                     (c)  the Commissioner is satisfied that the person is capable of performing the duties of an auditor and is otherwise a fit and proper person to be registered as an auditor.

255C  Circumstances in which a person meets educational etc. requirements

             (1)  A person meets the requirements of this subsection if the person:

                     (a)  holds a degree, diploma or certificate from a university, or other institution in Australia, that is prescribed by regulations made for the purposes of paragraph 1280(2A)(a) of the Corporations Act 2001; and

                     (b)  has, in the course of obtaining that degree, diploma or certificate, passed examinations in such subjects, under whatever name, as the appropriate authority of the university or other institution certifies to the Commissioner to represent a course of study:

                              (i)  in accountancy (including auditing) of not less than 3 years duration; and

                             (ii)  in commercial law (including company law) of not less than 2 years duration; and

                     (c)  has satisfactorily completed a course in auditing prescribed by regulations made for the purposes of paragraph 1280(2A)(c) of the Corporations Act 2001.

             (2)  A person meets the requirements of this subsection if the person has other qualifications and experience that, in the Commissioner’s opinion, are equivalent to the requirements mentioned in subsection (1).

255D  Commissioner must give an opportunity to be heard before refusal and written notice of decision

             (1)  The Commissioner must not refuse to grant an application for registration of a person as an auditor unless the Commissioner has given the person an opportunity to appear at a hearing before the Commissioner and to make submissions and give evidence to the Commissioner in relation to the matter.

             (2)  If the Commissioner refuses an application by a person for registration as an auditor, the Commissioner must, not later than 14 days after the decision, give to the person a notice in writing setting out the decision and the reasons for it.

255E  Refusal to grant an application for registration

             (1)  This section applies if a person has made an application for registration as an auditor.

             (2)  The Commissioner must refuse to grant the application if:

                     (a)  under subsection 215(1), the person is not eligible to be a candidate for an election, or to be elected or appointed, to an office in an organisation; or

                     (b)  under section 307A, the person is disqualified from holding office in an organisation.

             (3)  If the person is not a registered company auditor, the Commissioner must refuse to grant the application if the Commissioner is not satisfied as mentioned in subsection 255B(3) in relation to the person.

             (4)  The Commissioner may refuse to grant the application if the person is not resident in Australia.

255F  Commissioner must give certificate of registration

             (1)  If the Commissioner grants an application made by a person for registration as an auditor, the Commissioner must give the person a certificate:

                     (a)  stating that the person has been registered as an auditor; and

                     (b)  specifying the day the application was granted.

             (2)  The registration of a person as an auditor:

                     (a)  takes effect at the beginning of the day specified in the certificate as the day the application for registration was granted; and

                     (b)  remains in force until:

                              (i)  the registration is cancelled by the Commissioner; or

                             (ii)  the person dies.

255G  Cancellation and suspension of registration—general

             (1)  The Commissioner may cancel, or suspend for a specified period, the registration of a person as an auditor if the Commissioner is satisfied that the person:

                     (a)  has failed to carry out his or her duties under this Act; or

                     (b)  has not performed any audit work, or any significant audit work, during a continuous period of not less than 5 years, and as a result has ceased to have the practical experience necessary for carrying out audits for the purposes of this Act; or

                     (c)  is otherwise not a fit and proper person to remain registered as an auditor.

             (2)  In determining for the purposes of paragraph (1)(b) whether audit work performed by a person is significant, the Commissioner must have regard to:

                     (a)  the nature of the audit; and

                     (b)  the extent to which the person was involved in the audit; and

                     (c)  the level of responsibility the person assumed in relation to the audit.

             (3)  The Commissioner may cancel, or suspend for a specified period, the registration of a person as an auditor if the person requests that his or her registration be cancelled or suspended for that period.

             (4)  If the Commissioner cancels, or suspends for a specified period, the registration of a person as an auditor under subsection (1), the Commissioner must notify the Australian Securities and Investments Commission of the cancellation or suspension and the reasons for it.

             (5)  The regulations may make further provision for and in relation to the suspension of the registration of a person as an auditor.

255H  Cancellation and suspension of registration—person no longer a registered company auditor

                   If a person was registered as an auditor under subsection 255B(2) on the basis that the person was a registered company auditor at the time of registration, the Commissioner may:

                     (a)  cancel the registration if the person’s registration as a registered company auditor is cancelled; or

                     (b)  suspend the registration for some or all of any period throughout which the person’s registration as a registered company auditor is suspended.

255J  Written notice to be given of cancellation or suspension of registration

             (1)  If the Commissioner decides to cancel or suspend the registration of a person as an auditor:

                     (a)  the Commissioner must, not later than 14 days after the decision, give the person a written notice setting out the decision and the reasons for it; and

                     (b)  the decision comes into effect at the end of the day on which that notice is given to the person.

             (2)  A failure of the Commissioner to comply with subsection (1) does not affect the validity of the decision.

255K  Registered auditors to advise of material changes in circumstance etc.

                   A person who is registered as an auditor under this Subdivision must advise the Commissioner of any change in circumstances that could materially affect the person’s registration within 14 days of the change in circumstances.

Civil penalty:          200 penalty units.

255L  Commissioner may request further information

             (1)  The Commissioner may, in writing, request further information from any person for the purposes of making a decision under this Subdivision.

             (2)  The Commissioner is not required to make a decision under this Subdivision until any information requested under subsection (1) in relation to the decision has been provided.

255M  Basis of registration

                   Registration under this Subdivision is on the basis that:

                     (a)  the registration may cease or be suspended as provided for by this Subdivision; and

                     (b)  the registration may cease or be suspended by or under later legislation; and

                     (c)  no compensation is payable if the registration ceases or is suspended as mentioned in paragraph (a) or (b).

255N  Regulations

             (1)  The regulations may make provision for and in relation to the registration of auditors.

             (2)  Without limiting subsection (1), the regulations may make provision for and in relation to the following:

                     (a)  information relating to the matters to which the Commissioner must have regard in deciding whether to register a person as an auditor;

                     (b)  the keeping of a register;

                     (c)  fees in respect of applications for registration;

                     (d)  matters relating to the suspension and cancellation of registration;

                     (e)  the delegation, by a person on whom functions or powers are conferred by regulations made for the purposes of this Subdivision, of any such functions or powers.

Subdivision BAudits

256  Auditors of reporting units

             (1)  A reporting unit must ensure that there is an auditor of the reporting unit at any time when an auditor is required for the purposes of the operation of this Part in relation to the reporting unit.

Civil penalty:          200 penalty units.

             (2)  The position of auditor of a reporting unit is to be held by:

                     (a)  an individual who is a registered auditor; or

                     (b)  a firm, at least one of whose members is a registered auditor; or

                     (c)  a company, at least one of whose directors, officers or employees is a registered auditor.

             (3)  An individual must not accept appointment as auditor of a reporting unit unless:

                     (a)  the individual is a registered auditor; and

                     (b)  the individual is not an excluded auditor in relation to the reporting unit.

Civil penalty:          200 penalty units.

             (4)  A member of a firm must not accept appointment of the firm as auditor of a reporting unit unless:

                     (a)  at least one member of the firm is a registered auditor; and

                     (b)  no member of the firm is an excluded auditor in relation to the reporting unit.

Civil penalty:          200 penalty units.

          (4A)  A company must not accept appointment as auditor of a reporting unit unless:

                     (a)  at least one director, officer or employee of the company is a registered auditor; and

                     (b)  no director, officer or employee of the company is an excluded auditor in relation to the reporting unit.

Civil penalty:          200 penalty units.

             (5)  An individual who holds the position of auditor of a reporting unit must resign the appointment if the individual:

                     (a)  ceases to be a registered auditor; or

                     (b)  becomes an excluded auditor in relation to the reporting unit.

Civil penalty:          200 penalty units.

             (6)  A member of a firm that holds the position of auditor of a reporting unit must take whatever steps are open to the member to ensure that the firm resigns the appointment if the member:

                     (a)  ceases to be a registered auditor and is or becomes aware that no other member of the firm is a registered auditor; or

                     (b)  becomes an excluded auditor in relation to the reporting unit; or

                     (c)  becomes aware that another member of the firm is an excluded auditor in relation to the reporting unit.

Civil penalty:          200 penalty units.

          (6A)  A company that holds the position of auditor of a reporting unit must resign the appointment if:

                     (a)  there is no longer any director, officer or employee of the company who is a registered auditor; or

                     (b)  a director, officer or employee of the company becomes an excluded auditor in relation to the reporting unit.

Civil penalty:          200 penalty units.

             (7)  The auditor of a reporting unit must use his or her best endeavours to comply with each requirement of this Act that is applicable to the auditor in that capacity.

256A  Limited term to play significant role in audit of a reporting unit

             (1)  An individual must not play a significant role in the audit of a reporting unit:

                     (a)  for more than 5 consecutive financial years; or

                     (b)  for more than 5 out of 7 consecutive financial years.

Civil penalty:          200 penalty units.

             (2)  Paragraph (1)(b) does not apply to an individual, in relation to a reporting unit and a series of 7 consecutive financial years, if the Commissioner declares in writing that, in all the circumstances, it is not appropriate for that paragraph to apply to the individual in relation to the reporting unit and that series of 7 consecutive financial years.

             (3)  A declaration made under subsection (2) is not a legislative instrument.

             (4)  An individual plays a significant role in the audit of a reporting unit for a financial year if:

                     (a)  the individual holds the position of auditor of the reporting unit for the financial year; or

                     (b)  if a firm or company holds the position of auditor of the reporting unit for the financial year—the individual is a registered auditor who, on behalf of the firm or company:

                              (i)  participates in the preparation of an audit report in relation to a financial report of the reporting unit for the financial year or any part of the financial year; or

                             (ii)  participates in the conduct of an audit in relation to the reporting unit for the financial year or any part of the financial year.

257  Powers and duties of auditors

             (1)  An auditor of a reporting unit must audit the financial report of the reporting unit for each financial year and must make a report in relation to the year to the reporting unit.

             (2)  An auditor, or a person authorised by an auditor for the purposes of this subsection, is:

                     (a)  entitled at all reasonable times to full and free access to all records and other documents of the reporting unit relating directly or indirectly to the receipt or payment of money, or to the acquisition, receipt, custody or disposal of assets, by the reporting unit; and

                     (b)  entitled to seek from any designated officer, or employee of the reporting unit, such information and explanations as the auditor or authorised person wants for the purposes of the audit.

             (3)  If an auditor requests an officer, employee or member of an organisation to produce records or other documents under paragraph (2)(a), the request must:

                     (a)  be in writing; and

                     (b)  specify the nature of the records or other documents to be produced; and

                     (c)  specify how and where the records or other documents are to be produced; and

                     (d)  specify a period (of not less than 14 days after the notice is given) within which the records or other documents are to be produced.

             (4)  If an auditor authorises a person for the purposes of subsection (2), the auditor must serve on the reporting unit a notification that sets out the name and address of the person.

             (5)  An auditor must, in his or her report, state whether in the auditor’s opinion the general purpose financial report is presented fairly in accordance with any of the following that apply in relation to the reporting unit:

                     (a)  the Australian Accounting Standards;

                     (b)  any other requirements imposed by this Part.

If not of that opinion, the auditor’s report must say why.

             (6)  If the auditor is of the opinion that the general purpose financial report does not so comply, the auditor’s report must, to the extent it is practicable to do so, quantify the effect that non‑compliance has on the general purpose financial report. If it is not practicable to quantify the effect fully, the report must say why.

             (7)  The auditor’s report must describe:

                     (a)  any defect or irregularity in the general purpose financial report; and

                     (b)  any deficiency, failure or shortcoming in respect of the matters referred to in subsection (2) or section 252.

             (8)  The form and content of the auditor’s report must be in accordance with the Australian Auditing Standards.

             (9)  The auditor’s report must be dated as at the date that the auditor signs the report and must be given to the reporting unit within a reasonable time of the auditor having received the general purpose financial report.

           (10)  An auditor must not, in a report under this section, make a statement if the auditor knows, or is reckless as to whether, the statement is false or misleading.

Civil penalty:          200 penalty units.

           (11)  If:

                     (a)  the auditor suspects on reasonable grounds that there has been a breach of this Act or reporting guidelines; and

                     (b)  the auditor is of the opinion that the matter cannot be adequately dealt with by comment in a report or by reporting the matter to the committee of management of the reporting unit;

the auditor must immediately report the matter, in writing, to the Commissioner.

Civil penalty:          200 penalty units.

258  Obstruction etc. of auditors

             (1)  An officer, employee or member of an organisation or branch commits an offence if he or she:

                     (a)  hinders or obstructs the auditor of a reporting unit from taking action under paragraph 257(2)(a); or

                     (b)  does not comply with a request under paragraph 257(2)(a) by an auditor of a reporting unit to produce a record or other document in the custody or under the control of the officer, employee or member.

Penalty:  30 penalty units.

             (2)  Strict liability applies to paragraph (1)(b).

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (3)  It is a defence to an offence against paragraph (1)(b) if the officer, employee or member had a reasonable excuse for not complying.

Note:          A defendant bears an evidential burden in relation to the matters mentioned in subsection (3).

             (4)  However, a person is not excused from producing a record or other document under this section on the ground that the production might tend to incriminate the person or expose the person to a penalty.

             (5)  However:

                     (a)  producing the record or other document; or

                     (b)  any information, document or thing obtained as a direct or indirect consequence of giving the information or producing the record or other document;

is not admissible in evidence against the person in criminal proceedings or proceedings that may expose the person to a penalty.

             (6)  It is a defence to an offence against subsection (1) if the officer, employee or member did not know, and could not reasonably have known, that the auditor, or the person authorised by the auditor, to whom the charge relates was a person in relation to whom that subsection applied.

Note:          A defendant bears an evidential burden in relation to the matters mentioned in subsection (6).

             (7)  In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the auditor was an auditor.

             (8)  In this section:

auditor includes a person authorised by the auditor for the purposes of subsection 257(2).

259  Reporting unit to forward notices etc. to auditor

                   A reporting unit must forward to the auditor of the reporting unit any notice of, and any other communication relating to, a meeting of the reporting unit, or the committee of management of the reporting unit, at which the report of the auditor, or any general purpose financial report to which the report relates, are to be presented, being a notice or other communication that a member of the reporting unit, or the committee of management of the reporting unit, as the case may be, would be entitled to receive.

Civil penalty:          200 penalty units.

260  Auditor entitled to attend meetings at which report presented

             (1)  An auditor, or a person authorised by an auditor for the purposes of this section, is entitled to attend, and be heard at, any part of a meeting of a reporting unit, or the committee of management of a reporting unit, at which:

                     (a)  the report of the auditor, or any general purpose financial report to which the report relates, is to be presented or considered; or

                     (b)  there is to be conducted any business of the meeting that relates to:

                              (i)  the auditor in that capacity; or

                             (ii)  a person authorised by the auditor, in the capacity of a person so authorised.

             (2)  Where an auditor authorises a person for the purposes of this section, the auditor must serve on the reporting unit a notification, which sets out the name and address of the person.

             (3)  An officer, employee or member of an organisation or branch commits an offence if he or she hinders or obstructs the auditor of a reporting unit from attending a part of the meeting that the auditor is entitled to attend.

Penalty:  30 penalty units.

             (4)  A person commits an offence if:

                     (a)  an auditor of a reporting unit attends a part of a meeting that the auditor is entitled to attend; and

                     (b)  the person chairs the meeting; and

                     (c)  in the course of the part of the meeting, the auditor indicates to the person chairing the meeting that the auditor wishes to be heard; and

                     (d)  the person fails, as soon as practicable after having received the indication, to afford to the auditor an opportunity to be heard.

Penalty:  20 penalty units.

             (5)  It is a defence to an offence against a subsection of this section if the person did not know, and could not reasonably have known, that the auditor, or the person authorised by the auditor, to whom the charge relates was a person in relation to whom the subsection applied.

Note:          A defendant bears an evidential burden in relation to the matters mentioned in subsection (5).

             (6)  In a prosecution for an offence against this section, it is not necessary to prove that the defendant knew that the auditor was an auditor.

             (7)  In subsections (3) and (4):

auditor includes a person authorised by the auditor for the purposes of this section.

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

             (1)  An auditor of a reporting unit is not, in the absence of malice, liable to an action for defamation at the suit of a person in relation to a statement that the auditor makes in the course of duties as auditor, whether the statement is made orally or in writing.

             (2)  A person is not, in the absence of malice, liable to an action for defamation at the suit of a person in relation to the publishing of a document prepared by an auditor of a reporting unit in the course of duties as auditor and required by or under this Act to be lodged with the Commissioner.

             (3)  This section does not limit or affect any right, privilege or immunity that a defendant has in an action for defamation.

262  Fees and expenses of auditors

                   A reporting unit must pay the reasonable fees and expenses of an auditor of the reporting unit.

263  Removal of auditor

             (1)  An auditor of a reporting unit may only be removed during the term of appointment of the auditor:

                     (a)  where the auditor was appointed by the committee of management of the reporting unit—by resolution passed at a meeting of the committee by an absolute majority of the members of the committee; or

                     (b)  where the auditor was appointed by a general meeting of the members of the reporting unit—by resolution passed at a general meeting by a majority of the members of the reporting unit voting at the meeting.

             (2)  Written notice of the intention to remove the auditor must be given to each member of the reporting unit. The notice must be provided in accordance with any time limits provided by the rules of the reporting unit, or within a reasonable time before the resolution is moved if no such time limits are provided.

Civil penalty:          200 penalty units.

             (3)  The auditor must be given reasonable notice of the resolution to remove the auditor and must be given the opportunity to:

                     (a)  in the case of removal under paragraph (1)(a)—make oral representations to the committee of management; and

                     (b)  in any case—make written representations.

Civil penalty:          200 penalty units.

             (4)  If it is proposed to remove the auditor under paragraph (1)(b) and the auditor makes written representations, the auditor may require the reporting unit to provide a copy of the written representations to each member of the reporting unit.

             (5)  The reporting unit must comply with a requirement under subsection (4) unless the written representations exceed any limits as to length that are prescribed.

Civil penalty:          200 penalty units.

264  Resignation of auditor

             (1)  An auditor of a reporting unit may resign by giving written notice to the reporting unit.

             (2)  The resignation takes effect on the day specified in the notice or, if no day is specified, the day that the notice is given to the reporting unit.

             (3)  If the auditor requests the reporting unit to allow the auditor to explain his or her reasons for resigning, the reporting unit must either:

                     (a)  distribute to the members of the reporting unit written reasons for resignation prepared by the auditor; or

                     (b)  give the auditor the opportunity to explain his or her reasons to a general meeting of the reporting unit.

The committee of management of the reporting unit may choose which method is used.

Civil penalty:          200 penalty units.

Division 5Reporting requirements

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

             (1)  A reporting unit must provide free of charge to its members either:

                     (a)  a full report consisting of:

                              (i)  a copy of the report of the auditor in relation to the inspection and audit of the financial records of the reporting unit in relation to a financial year; and

                             (ii)  a copy of the general purpose financial report to which the report relates; and

                            (iii)  a copy of the operating report to which the report relates; or

                     (b)  a concise report for the financial year that complies with subsection (3).

Civil penalty:          100 penalty units.

             (2)  A concise report may only be provided if, under the rules of the reporting unit, the committee of management of the reporting unit resolves that a concise report is to be provided.

             (3)  A concise report for a financial year consists of:

                     (a)  a concise financial report for the year drawn up in accordance with the regulations; and

                     (b)  the operating report for the year; and

                     (c)  a statement by the auditor:

                              (i)  that the concise financial report has been audited; and

                             (ii)  whether, in the auditor’s opinion, the concise financial report complies with the relevant Australian Accounting Standards; and

                     (d)  a copy of anything included under subsection 257(5), (6) or (7) in the auditor’s report on the full report; and

                     (e)  a statement that the report is a concise report and that a copy of the full report and auditor’s report will be sent to the member free of charge if the member asks for them.

             (4)  If a member requests a copy of the full report and auditor’s report, as mentioned in paragraph (3)(e), the reporting unit must send those reports to the person within 28 days of the request being made.

Civil penalty:          100 penalty units.

             (5)  The copies referred to in subsection (1) must be provided within:

                     (a)  if a general meeting of members of the reporting unit to consider the reports is held within 6 months after the end of the financial year—the period starting at the end of the financial year and ending 21 days before that meeting; or

                     (b)  in any other case—the period of 5 months starting at the end of the financial year.

The Commissioner may, upon application by the reporting unit, extend the period during which the meeting referred to in paragraph (a) may be held, or the period set out in paragraph (b), by no more than one month.

Civil penalty:          100 penalty units.

             (6)  Where a reporting unit publishes a journal of the reporting unit that is available to the members of the reporting unit free of charge, the reporting unit may comply with subsection (1):

                     (a)  by publishing in the journal the full report; or

                     (b)  by preparing a concise report as described in subsection (3) and publishing the concise report in the journal.

             (7)  Where a reporting unit consists of 2 or more branches of an organisation and one of those branches publishes a journal of the branch that is available to the members of the branch free of charge, the reporting unit may comply with subsection (1) in relation to those members:

                     (a)  by publishing in the journal the full report; or

                     (b)  by preparing a concise report as described in subsection (3) and publishing the concise report in the journal.

266  Full report to be presented to meetings

             (1)  Subject to subsection (2), the reporting unit must cause the full report to be presented to a general meeting of the members of the reporting unit within the period of 6 months starting at the end of the financial year (or such longer period as is allowed by the Commissioner under subsection 265(5)).

Civil penalty:          60 penalty units.

             (2)  If the rules of the reporting unit permit a general meeting to be a series of meetings at different locations, the presenting of the full report to such a series of meetings is taken to be the presenting of the report to a general meeting. The general meeting is taken to have occurred at the time of the last of the meetings in the series.

             (3)  If the rules of the reporting unit provide for a specified percentage (not exceeding 5%) of members to be able to call a general meeting of the reporting unit for the purpose of considering the auditor’s report, the general purpose financial report and the operating report, the full report may instead be presented to a meeting of the committee of management of the reporting unit that is held within the period mentioned in subsection (1).

267  Comments by committee members not to be false or misleading

                   Where a member of the committee of management of a reporting unit:

                     (a)  provides to members of the reporting unit; or

                     (b)  publishes in a journal; or

                     (c)  presents to a general meeting of the members of the reporting unit or a meeting of the committee of management of the reporting unit;

comments on a matter dealt with in a report, accounts or statements of the kind referred to in subsection 265(1), or in a concise report as described in subsection 265(3), the member must not, in the comments, make a statement if the person knows, or is reckless as to whether, the statement is false or misleading.

Civil penalty:          100 penalty units.

268  Reports etc. to be lodged with the Commissioner

                   A reporting unit must, within 14 days (or such longer period as the Commissioner allows) after the general meeting, or meeting of the committee of management, referred to in section 266, lodge with the Commissioner:

                     (a)  a copy of the full report; and

                     (b)  if a concise report was provided to members—a copy of the concise report; and

                     (c)  a certificate by a prescribed designated officer that the documents lodged are copies of the documents provided to members and presented to a general meeting, or presented to a meeting of the committee of management, as the case requires, in accordance with section 266.

Civil penalty:          100 penalty units.

Division 6Reduced reporting requirements for particular reporting units

269  Reporting units with substantial common membership with State registered bodies

             (1)  This section applies to a reporting unit if there is an industrial association (the associated State body) that:

                     (a)  is registered or recognised as such an association (however described) under a prescribed State Act; and

                     (b)  is, or purports to be, composed of substantially the same members as the reporting unit; and

                     (c)  has, or purports to have, officers who are substantially the same as designated officers in relation to the reporting unit.

             (2)  A reporting unit is taken to have satisfied this Part if this section applies to the reporting unit and:

                     (a)  the Commissioner, on the application of the reporting unit, issues a certificate stating that the financial affairs of the reporting unit are encompassed by the financial affairs of the associated State body; and

                     (b)  the associated State body has, in accordance with prescribed State legislation, prepared accounts, had those accounts audited, provided a copy of the audited accounts to its members and lodged the audited accounts with the relevant State authority; and

                     (c)  the reporting unit has lodged a copy of the audited accounts with the Commissioner; and

                     (d)  any members of the reporting unit who are not also members of the associated State body have been provided with copies of the accounts at substantially the same time as the members of the reporting unit who are members of the associated State body; and

                     (e)  a report under section 254 has been prepared in respect of the activities of the reporting unit and has been provided to members of the reporting unit with the copies of the accounts.

270  Organisations with income of less than certain amount

             (1)  If, on the application of a reporting unit that is the whole of an organisation made after the end of a financial year, the Commissioner is satisfied that the reporting unit’s income for the year did not exceed:

                     (a)  in the case of a financial year that, because of section 240, is a period other than 12 months—such amount as the Commissioner considers appropriate in the circumstances; or

                     (b)  in any other case—$100,000 or such higher amount as is prescribed;

the Commissioner must issue to the reporting unit a certificate to that effect.

             (2)  Where a certificate is issued under subsection (1) in relation to a reporting unit in relation to a financial year:

                     (a)  the following provisions of this section apply in relation to the reporting unit in relation to the year; and

                     (b)  except as provided in paragraph (c), this Part continues to apply in relation to the reporting unit in relation to the year; and

                     (c)  sections 253, 265, 266 and 268 do not apply in re