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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 Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Act 2020
An Act relating to registered organisations, and for other purposes
Administered by: Attorney-General's
Registered 18 Jan 2021
Start Date 16 Dec 2020

Commonwealth Coat of Arms of Australia

Fair Work (Registered Organisations) Act 2009

No. 86, 1988

Compilation No. 81

Compilation date:                              16 December 2020

Includes amendments up to:            Act No. 131, 2020

Registered:                                         18 January 2021

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 16 December 2020 (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If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.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

92A....... Review of amendments made by the Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Act 2020............................................................... 103

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

Division 2—Ballots for withdrawal from amalgamated organisations  109

94.......... Applications to the FWC for ballots................................................ 109

94A....... Accepting applications for ballots more than 5 years after amalgamation 110

95.......... Outline of proposed withdrawal...................................................... 111

95A....... Proposed names and rules............................................................... 112

96.......... Filing the “yes” case........................................................................ 114

97.......... Filing the “no” case......................................................................... 114

98.......... Provisions relating to outlines and statements of “yes” and “no” cases 115

99.......... Notifying of applications for ballots................................................ 115

100........ Orders for ballots............................................................................ 115

101........ Financial members only eligible to vote.......................................... 116

102........ Conduct of ballots........................................................................... 117

103........ Providing information etc. to person conducting ballot................... 118

104........ Declaration by secretary etc. of organisation................................... 121

105........ Offences in relation to ballots.......................................................... 121

106........ Certificate showing particulars of the ballot.................................... 124

107........ Post‑ballot report by person conducting ballot................................ 124

108........ Inquiries into irregularities.............................................................. 125

108A..... Powers of the FWC to be exercised by President or Full Bench..... 126

Division 3—Giving effect to ballots                                                                  127

109........ Determining the day of withdrawal................................................. 127

110........ Registration of constituent part........................................................ 128

110A..... Rules and alterations take effect...................................................... 129

110B..... Undertakings of applicant take effect as undertakings of newly registered organisation          129

111........ Membership of organisation following withdrawal of separately identifiable constituent part 129

112........ Members of amalgamated organisation may join newly registered organisation      130

113........ Orders of the FWC, modern awards etc. made before withdrawal.. 130

113A..... Enterprise agreements made after withdrawal................................. 131

114........ Effect of withdrawal on agreement under section 151..................... 131

115........ Instruments..................................................................................... 132

116........ Pending proceedings....................................................................... 132

117........ Division applies despite laws and agreements prohibiting transfer etc. 133

118........ Amalgamated organisation, constituent part and newly registered organisation to take necessary steps   134

119........ Certificates in relation to land and interests in land.......................... 134

120........ Certificates in relation to charges..................................................... 135

121........ Certificates in relation to shares etc................................................. 135

122........ Certificates in relation to other assets.............................................. 136

123........ Holding office after withdrawal...................................................... 136

124........ Other matters................................................................................... 137

125........ Federal Court may resolve difficulties............................................. 137

Division 4—Validation                                                                                             138

126........ Validation of certain acts done in good faith................................... 138

127........ Validation of certain acts after 4 years............................................. 139

128........ Orders affecting application of section 126 or 127.......................... 139

129........ Federal Court may make orders in relation to consequences of invalidity                140

Division 5—Miscellaneous                                                                                     142

130........ Certain actions etc. not to constitute breach of rules of amalgamated organisation   142

131........ Amalgamated organisation not to penalise members etc.................. 143

Chapter 4—Representation orders                                                          145

Part 1—Simplified outline                                                                                             145

132........ Simplified outline............................................................................ 145

Part 2—Representation orders                                                                                  146

133........ Orders about representation rights of organisations of employees.. 146

134........ Preconditions for making of orders................................................. 146

135........ Factors to be taken into account by the FWC.................................. 147

136........ Order may be subject to limits......................................................... 147

137........ Organisation must comply with order............................................. 148

Part 3—Representation orders for workplace groups                                149

137A..... Orders about representation rights of organisations of employees.. 149

137B..... Factors to be taken into account by the FWC.................................. 150

137C..... Submissions by peak councils........................................................ 151

137D..... Order may be subject to limits......................................................... 152

137E...... Organisation must comply with order............................................. 152

Part 4—Miscellaneous                                                                                                     153

137F...... FWC may make orders reflecting State representation orders......... 153

138........ Exercise of the FWC’s powers under this Chapter......................... 153

138A..... Representation rights of former State‑registered associations......... 154

Chapter 5—Rules of organisations                                                         155

Part 1—Simplified outline of Chapter                                                                  155

139........ Simplified outline............................................................................ 155

Part 2—Rules of organisations                                                                                  156

Division 1—General                                                                                                  156

140........ Organisations to have rules............................................................. 156

141........ Rules of organisations..................................................................... 156

142........ General requirements for rules........................................................ 158

142A..... Model rules for policies relating to expenditure.............................. 159

Division 2—Rules relating to elections for office                                      160

143........ Rules to provide for elections for offices........................................ 160

144........ Rules to provide for elections for office by secret postal ballot....... 161

145........ Rules to provide for terms of office................................................ 163

146........ Rules may provide for filling of casual vacancies........................... 164

147........ Model rules for conduct of elections............................................... 165

Division 3—Rules relating to conduct of officers and employees     166

148........ Model rules about conduct of officers and employees.................... 166

Division 4—Other rules                                                                                           167

Subdivision A—Loans, grants and donations                                                 167

149........ Rules to provide conditions for loans, grants and donations by organisations         167

Subdivision B—Agreements between organisations and State unions      168

150........ Definitions...................................................................................... 168

151........ Membership agreements................................................................. 169

152........ Assets and liabilities agreements..................................................... 171

153........ Party to section 152 agreement may apply to Federal Court for orders 172

154........ Termination of section 152 agreement............................................. 173

Subdivision BA—Branches of organisations                                                  174

154A..... Branch autonomy............................................................................ 174

154B..... Branch funds................................................................................... 174

Subdivision BB—Approved training                                                                175

Subdivision C—Miscellaneous                                                                            175

155........ Exercise of the FWC’s powers under this Division........................ 175

Division 5—Alteration of rules and evidence of rules                             176

156........ General Manager may determine alterations of rules....................... 176

157........ FWC may determine alteration of rules where there has been a breach of an undertaking        176

158........ Change of name or alteration of eligibility rules of organisation..... 177

158A..... Alteration of eligibility rules of organisation by General Manager.. 179

159........ Alteration of other rules of organisation.......................................... 179

160........ Certain alterations of rules to be recorded....................................... 180

161........ Evidence of rules............................................................................. 181

162........ Powers of the FWC........................................................................ 181

Part 3—Validity and performance of rules etc                                                182

163........ Rules contravening section 142....................................................... 182

164........ Directions for performance of rules................................................ 184

164A..... Directions to rectify breach of rule of organisation......................... 185

164B..... Orders under sections 164 and 164A.............................................. 186

Chapter 6—Membership of organisations                                      188

Part 1—Simplified outline of Chapter                                                                  188

165........ Simplified outline............................................................................ 188

Part 2—Entitlement to membership                                                                       189

166........ Entitlement to become and to remain a member............................... 189

167........ Federal Court may declare on person’s entitlement to membership. 190

168........ Application for membership of organisation by person treated as having been a member        192

169........ Request by member for statement of membership........................... 193

170........ Rectification of register of members................................................ 194

Part 3—Termination of membership                                                                     195

171........ Federal Court may order that persons cease to be members of organisations           195

171A..... Cessation of membership if member is not an employee etc........... 195

172........ Non‑financial members to be removed from the register................. 195

173........ No entrance fee if person re‑joins within 6 months......................... 196

174........ Resignation from membership........................................................ 196

Part 4—False information, disputes and arrears of dues                          199

175........ False representation as to membership of organisation................... 199

176........ False representation about resignation from organisation................ 199

177........ Disputes between organisations and members................................ 199

178........ Recovery of arrears......................................................................... 200

179........ Liability for arrears.......................................................................... 200

Part 5—Conscientious objection to membership                                            201

180........ Conscientious objection to membership of organisations................ 201

Chapter 7—Democratic control                                                                  203

Part 1—Simplified outline of Chapter                                                                  203

181........ Simplified outline............................................................................ 203

Part 2—Conduct of elections for office and other positions                    204

182........ Conduct by AEC............................................................................. 204

183........ Application for organisation or branch to conduct its elections for office 204

184........ Objections to application to conduct elections for office................. 205

185........ Threats etc. in relation to section 184 objections............................. 205

186........ Commissioner may permit organisation or branch to conduct its elections for office               206

187........ Organisation may ask AEC to conduct elections for positions other than offices     207

188........ Declaration envelopes etc. to be used for postal ballots................... 207

189........ Commissioner to arrange for conduct of elections.......................... 208

190........ Organisation or branch must not assist one candidate over another 208

191........ Organisation to provide returning officer with copy of register...... 208

192........ Declaration by secretary etc. of organisation................................... 209

193........ Provisions applicable to elections conducted by AEC..................... 210

194........ Hindering or obstructing electoral official or other person.............. 211

195........ Improper interference with election process.................................... 212

196........ Death of candidate........................................................................... 214

197........ Post‑election report by AEC........................................................... 214

198........ Organisation to respond to adverse report on rules......................... 216

199........ Ballot papers etc. to be preserved.................................................... 218

Part 3—Inquiries into elections for office                                                           220

200........ Application for inquiry.................................................................... 220

201........ Instituting of inquiry....................................................................... 220

202........ Federal Court may authorise Commissioner to take certain action.. 221

203........ Identity cards................................................................................... 223

204........ Interim orders.................................................................................. 224

205........ Procedure at hearing........................................................................ 225

206........ Action by Federal Court.................................................................. 225

207........ Commissioner to make arrangements for conduct of elections etc.. 227

208........ Enforcement of orders..................................................................... 227

209........ Validity of certain acts etc. where election declared void................. 227

Part 4—Disqualification from office                                                                      229

Division 1—Simplified outline of Part                                                              229

210........ Simplified outline............................................................................ 229

Division 2—Persons who have been convicted of a prescribed offence 230

211........ Simplified outline of Division......................................................... 230

212........ Meaning of prescribed offence........................................................ 230

213........ Meaning of convicted of a prescribed offence................................. 230

213A..... Meaning of exclusion period and reduced exclusion period........... 231

214........ Certificate of registrar etc. is evidence of facts................................ 231

215........ Certain persons disqualified from holding office in organisations.. 232

216........ Application for leave to hold office in organisations by prospective candidate for office         234

217........ Application for leave to hold office in organisations by office holder 235

218........ Federal Court to have regard to certain matters............................... 236

219........ Action by Federal Court.................................................................. 236

220........ Part not to affect spent convictions scheme..................................... 237

Chapter 8—Records and accounts                                                          238

Part 1—Simplified outline of Chapter                                                                  238

229........ Simplified outline............................................................................ 238

Part 2—Records to be kept and lodged by organisations                         239

230........ Records to be kept and lodged by organisations............................. 239

231........ Certain records to be held for 7 years.............................................. 240

232........ Offence to interfere with register or copy........................................ 240

233........ Obligation to lodge information with the Commissioner................. 240

234........ Storage of records........................................................................... 241

235........ Commissioner may authorise access to certain records................... 242

236........ Commissioner may direct organisation to deliver copy of records.. 243

237........ Organisations to notify particulars of loans, grants and donations.. 244

Part 3—Accounts and audit                                                                                        246

Division 1—Preliminary                                                                                          246

238........ Simplified outline............................................................................ 246

239........ Part only applies to financial years starting after registration........... 246

240........ Financial years—change in financial year....................................... 247

241........ Exemptions from certain Australian Accounting Standards............ 247

Division 2—Reporting units                                                                                  248

242........ What is a reporting unit?................................................................. 248

243........ Designated officers......................................................................... 248

244........ Members, staff and journals etc. of reporting units......................... 249

245........ Determination of reporting units..................................................... 250

246........ Determination of reporting units—application by organisation....... 250

247........ Determination of reporting units—General Manager initiative........ 251

248........ Determination of reporting units—years certificate applies to......... 252

249........ Determination of reporting units—revocation of certificates........... 252

250........ Determination of reporting units—rule alterations.......................... 253

251........ Determination of reporting units—later certificate revokes earlier certificate            254

Division 3—Accounting obligations                                                                  255

Subdivision A—General obligations                                                                 255

252........ Reporting unit to keep proper financial records............................... 255

253........ Reporting unit to prepare general purpose financial report.............. 256

254........ Reporting unit to prepare operating report....................................... 257

Subdivision B—Reporting guidelines                                                               258

255........ Reporting guidelines....................................................................... 258

Division 4—Auditors                                                                                                 260

Subdivision A—Registration of auditors                                                         260

255A..... Applications may be made for registration as an auditor................. 260

255B..... Registration by Commissioner........................................................ 260

255C..... Circumstances in which a person meets educational etc. requirements 261

255D..... Commissioner must give an opportunity to be heard before refusal and written notice of decision          262

255E...... Refusal to grant an application for registration................................ 262

255F...... Commissioner must give certificate of registration.......................... 262

255G..... Cancellation and suspension of registration—general..................... 263

255H..... Cancellation and suspension of registration—person no longer a registered company auditor 264

255J...... Written notice to be given of cancellation or suspension of registration 264

255K..... Registered auditors to advise of material changes in circumstance etc. 265

255L...... Commissioner may request further information.............................. 265

255M.... Basis of registration........................................................................ 265

255N..... Regulations..................................................................................... 265

Subdivision B—Audits                                                                                          266

256........ Auditors of reporting units.............................................................. 266

256A..... Limited term to play significant role in audit of a reporting unit...... 268

257........ Powers and duties of auditors......................................................... 269

258........ Obstruction etc. of auditors............................................................. 271

259........ Reporting unit to forward notices etc. to auditor............................. 272

260........ Auditor entitled to attend meetings at which report presented......... 273

261........ Auditors and other persons to enjoy qualified privilege in certain circumstances     274

262........ Fees and expenses of auditors......................................................... 274

263........ Removal of auditor.......................................................................... 275

264........ Resignation of auditor..................................................................... 276

Division 5—Reporting requirements                                                                277

265........ Copies of full report or concise report to be provided to members.. 277

266........ Full report to be presented to meetings............................................ 279

267........ Comments by committee members not to be false or misleading.... 279

268........ Reports etc. to be lodged with the Commissioner........................... 280

Division 6—Reduced reporting requirements for particular reporting units    281

269........ Reporting units with substantial common membership with State registered bodies                281

270........ Organisations with income of less than certain amount................... 282

271........ Exemption from this Part of certain reporting units......................... 284

Division 7—Members’ access to financial records                                   285

272........ Information to be provided to members or Commissioner.............. 285

273........ Order for inspection of financial records......................................... 286

274........ Frivolous or vexatious applications................................................. 286

275........ Ancillary orders.............................................................................. 287

276........ Disclosure of information acquired in inspection............................ 287

277........ Reporting unit or committee of management may allow member to inspect books   288

278........ FWC to be advised of breaches of Part or rules etc. found during inspection          288

279........ Constitution of the FWC................................................................. 288

Part 4—Access to organisations’ books                                                                289

280........ Right of access to organisation’s books.......................................... 289

Chapter 9—Conduct of officers and employees                       291

Part 1—Simplified outline of Chapter                                                                  291

281........ Simplified outline............................................................................ 291

Part 2—General duties in relation to the financial management of organisations             292

Division 1—Preliminary                                                                                          292

282........ Simplified outline............................................................................ 292

283........ Part only applies in relation to financial management...................... 292

284........ Meaning of involved........................................................................ 292

Division 2—General duties in relation to the financial management of organisations  293

285........ Care and diligence—civil obligation only........................................ 293

286........ Good faith—civil obligations.......................................................... 294

287........ Use of position—civil obligations................................................... 294

288........ Use of information—civil obligations............................................. 294

289........ Effect of ratification by members.................................................... 295

290........ Compliance with statutory duties.................................................... 296

290A..... Good faith, use of position and use of information—criminal offences 296

291........ Interaction of sections 285 to 289 and 290A with other laws etc.... 297

292........ Reliance on information or advice provided by others.................... 297

293........ Responsibility for actions of other person....................................... 298

Part 2A—Disclosure obligations                                                                               300

Division 1—Preliminary                                                                                          300

293A..... Simplified outline............................................................................ 300

Division 2—Disclosure obligations and restrictions on taking part in making decisions             301

293B..... Disclosure of remuneration paid to officers.................................... 301

293BA.. Immediate disclosure....................................................................... 302

293BB... Standing disclosure of remuneration............................................... 302

293BC... Disclosure of certain remuneration and benefits by organisations and branches      303

293C..... Disclosure of material personal interests of officers........................ 304

293D..... Officer may give members of committee of management standing notice about an interest      307

293E...... Interaction of section 293C and 293D with other laws................... 308

293F...... Restrictions on taking part in making decisions.............................. 309

293G..... Disclosure of payments made by an organisation or a branch......... 310

293H..... Section 293G—order for alternative disclosure arrangement.......... 312

Division 3—Officer and related party disclosure statements             315

293J...... Officer and related party disclosure statements............................... 315

Division 4—Training in relation to financial duties                                 317

293K..... Officers to undertake approved training.......................................... 317

293L...... Approved training........................................................................... 317

293M.... Commissioner may grant exemption from financial training........... 317

Part 3—General duties in relation to orders and directions                    319

Division 1—Preliminary                                                                                          319

294........ Simplified outline............................................................................ 319

295........ Meaning of involved........................................................................ 319

296........ Application to officers and employees of branches......................... 319

Division 2—General duties in relation to orders and directions       320

297........ Order or direction applying to organisation—civil obligation......... 320

298........ Prohibition order or direction applying to organisation—civil obligation 320

299........ Order or direction applying to officer—civil obligation.................. 321

300........ Prohibition order or direction applying to officer—civil obligation. 321

301........ Order or direction applying to employee—civil obligation.............. 322

302........ Prohibition order or direction applying to employee—civil obligation 323

303........ Order or direction applying to member of organisation—civil obligation 323

303A..... Application of this Division............................................................ 324

Chapter 10—Civil penalties                                                                            325

Part 1—Simplified outline of Chapter                                                                  325

304........ Simplified outline............................................................................ 325

Part 2—Civil consequences of contravening civil penalty provisions 326

305........ Civil penalty provisions.................................................................. 326

306........ Pecuniary penalty orders that the Federal Court may make............. 326

307........ Compensation orders...................................................................... 327

307A..... Disqualification orders.................................................................... 328

308........ Other orders.................................................................................... 328

309........ Effect of section 307....................................................................... 328

310........ Who may apply for an order........................................................... 329

311........ Civil proceedings after criminal proceedings................................... 329

312........ Criminal proceedings during civil proceedings............................... 330

313........ Criminal proceedings after civil proceedings................................... 330

314........ Evidence given in proceedings for penalty not admissible in criminal proceedings  330

315........ Relief from liability for contravention of civil penalty provision..... 331

316........ Power to grant relief........................................................................ 331

Chapter 11—Miscellaneous                                                                             333

Part 1—Simplified outline of Chapter                                                                  333

317........ Simplified outline............................................................................ 333

Part 2—Validating provisions for organisations                                             335

318........ Definition........................................................................................ 335

319........ Validation of certain acts done in good faith................................... 336

320........ Validation of certain acts after 4 years............................................. 338

321........ Order affecting application of section 319 or 320........................... 339

322........ Federal Court may make orders in relation to consequences of invalidity                340

323........ Federal Court may order reconstitution of branch etc...................... 341

Part 3—Financial assistance and costs                                                                  344

Division 1—Financial assistance                                                                         344

324........ Authorisation of financial assistance............................................... 344

325........ Federal Court may certify that application was reasonable.............. 346

326........ Applications under sections 163, 164, 164A and 167..................... 347

327........ Fees for 2 counsel not normally to be paid...................................... 348

328........ Powers of Federal Court not affected.............................................. 348

Division 2—Costs                                                                                                        349

329........ Costs only where proceeding instituted vexatiously etc.................. 349

Part 3A—Registered Organisations Commissioner and Registered Organisations Commission             350

Division 1—Establishment, functions and powers of Commissioner 350

329AA.. Establishment.................................................................................. 350

329AB.. Functions of the Commissioner...................................................... 350

329AC.. Powers of Commissioner................................................................ 350

Division 2—Terms and conditions of appointment of Commissioner 352

329BA.. Appointment................................................................................... 352

329BB... Term of appointment....................................................................... 352

329BC... Acting Commissioner..................................................................... 352

329BD.. Remuneration.................................................................................. 353

329BE... Leave of absence............................................................................. 353

329BF... Outside employment....................................................................... 353

329BG.. Disclosure of interests..................................................................... 353

329BH.. Other terms and conditions............................................................. 354

329BI.... Resignation..................................................................................... 354

329BJ.... Termination of appointment............................................................ 354

Division 3—Staff and consultants                                                                      356

329CA.. Staff................................................................................................ 356

329CB... Other persons assisting the Commissioner..................................... 356

329CC... Consultants..................................................................................... 356

Division 4—Establishment and function of the Registered Organisations Commission               357

329DA.. Establishment.................................................................................. 357

329DB.. Constitution of the Commission...................................................... 357

329DC.. Function of the Commission........................................................... 357

329DD.. Commission has privileges and immunities of the Crown.............. 357

Division 5—Registered Organisations Commission Special Account 358

329EA... Registered Organisations Commission Special Account................. 358

329EB... Credits to the Account..................................................................... 358

329EC... Purposes of the Account................................................................. 358

Division 6—Reporting requirements                                                                360

329FA... Directions from the Minister........................................................... 360

329FB... Minister may require reports........................................................... 360

329FC... Annual report.................................................................................. 360

Part 3B—Information sharing                                                                                   362

329G..... When information may be disclosed............................................... 362

Part 4—Inquiries and investigations                                                                      363

Division 1—Inquiries                                                                                                363

330........ Commissioner may make inquiries................................................. 363

Division 2—Investigations                                                                                     364

331........ Commissioner may conduct investigations..................................... 364

332........ Investigations arising from auditor’s report.................................... 364

333........ Investigations arising from request from members......................... 365

334........ Investigations arising from referral under section 278.................... 366

335........ Conduct of investigations................................................................ 366

335B..... Investigations to be completed as soon as practicable..................... 367

Division 3—Questioning on oath or affirmation                                        368

335C..... When this Division applies............................................................. 368

335D..... Requirements made of attendee....................................................... 368

335E...... Questioning to take place in private................................................. 368

335F...... Attendee’s lawyer........................................................................... 369

335G..... Record of statements....................................................................... 369

335H..... Copies given subject to conditions.................................................. 370

Division 4—Powers in relation to documents                                              371

335K..... Application for warrant to seize documents.................................... 371

335L...... Grant of warrant.............................................................................. 371

335M.... Execution of warrant....................................................................... 372

335N..... Powers in relation to documents produced or seized....................... 373

335P...... Powers if documents not produced................................................. 374

335Q..... Power to require person to identify property of an organisation..... 375

Division 5—Action following investigations                                                 376

336........ Action in relation to reporting units................................................. 376

Division 6—Offences                                                                                                 378

337........ Offences in relation to investigation by Commissioner................... 378

337AA.. Strict liability offences..................................................................... 379

337AB.. Obstructing person acting under this Part....................................... 380

337AC.. Concealing documents relevant to investigation.............................. 380

337AD.. Self‑incrimination............................................................................ 381

337AE... Legal professional privilege............................................................ 382

Division 7—Evidentiary use of certain material                                        384

337AF... Statements made on oath or affirmation during an investigation—proceedings against attendee              384

337AG.. Statements made on oath or affirmation during an investigation—other proceedings               385

337AH.. Weight of evidence admitted under section 337AG........................ 385

337AJ... Objection to admission of statements made on oath or affirmation during an investigation      386

337AK.. Copies of, or extracts from, certain documents............................... 387

337AL... Material otherwise admissible......................................................... 388

Division 8—Miscellaneous                                                                                     389

337AM. Evidence of authority...................................................................... 389

337AN.. Application of Evidence Act........................................................... 389

337AP... Allowances and expenses............................................................... 389

337AQ.. Compliance with Part...................................................................... 389

Part 4A—Protection for whistleblowers                                                              391

Division 1—Protected disclosures                                                                      391

337A..... Disclosures qualifying for protection under this Part...................... 391

Division 2—Protections                                                                                           393

337B..... Disclosure that qualifies for protection not actionable etc................ 393

337BA.. What constitutes taking a reprisal.................................................... 394

337BB... Civil remedies................................................................................. 394

337BC... Costs only if proceedings instituted vexatiously etc........................ 396

337BD.. Civil penalties.................................................................................. 397

337BE... Criminal offences............................................................................ 398

337BF... Interaction between civil remedies, civil penalties and criminal offences  399

337BG.. Protections have effect despite other Commonwealth laws............. 399

Division 3—Investigation of protected disclosures                                   401

337C..... Allocation of handling of disclosure............................................... 401

337CA.. Investigation of disclosure.............................................................. 401

337CB... Time limit for investigations under this Division............................ 402

337CC... Regulations in relation to allocation and investigation..................... 403

337CD.. Disclosure to enforcement agencies................................................ 403

337CE... Protection of witnesses etc.............................................................. 404

Division 4—Miscellaneous                                                                                     405

337D..... Reference to this Part...................................................................... 405

337DA.. Liability for acts and omissions....................................................... 405

337DB.. Concurrent operation of State and Territory laws............................ 405

337DC.. Law relating to legal professional privilege not affected.................. 405

337DD.. Other investigative powers etc. not affected.................................... 406

Part 4B—Functions and powers of the FWC                                                  407

337F...... Powers of inspection....................................................................... 407

337G..... Parties to proceedings..................................................................... 407

337H..... Kinds of orders............................................................................... 407

337J...... Relief not limited to claim................................................................ 408

337K..... Publishing orders............................................................................ 408

Part 5—Jurisdiction of the Federal Court of Australia                             410

338........ Conferring jurisdiction on the Federal Court................................... 410

339........ Exclusive jurisdiction...................................................................... 410

339A..... Exercising jurisdiction in the Fair Work Division of the Federal Court 410

340........ Exercise of Court’s original jurisdiction.......................................... 411

341........ Reference of proceedings to Full Court........................................... 412

342........ Appeal to the Court from certain judgments.................................... 413

Part 6—Other                                                                                                                       414

343........ Delegation by Minister.................................................................... 414

343A..... Delegation by General Manager...................................................... 414

343B..... Delegation by Commissioner.......................................................... 415

344........ Conduct by officers, directors, employees or agents....................... 416

345........ Right to participate in ballots........................................................... 417

346........ Requests by members for information concerning elections and certain ballots       417

347........ Providing copy of rules or list of offices etc. on request by member 418

348........ Certificate as to membership of organisation................................... 419

349........ List of officers to be evidence......................................................... 419

350........ Unauthorised collection of money................................................... 420

351........ No imprisonment in default............................................................. 420

351A..... Minister’s entitlement to intervene.................................................. 420

352........ Jurisdiction of courts limited as to area........................................... 421

353........ Public sector employer to act through employing authority............. 421

353A..... Representation in proceedings in the Fair Work Division of the Federal Court and Federal Circuit Court               422

354........ Proceedings by and against unincorporated clubs........................... 422

355........ Inspection of documents etc............................................................ 423

356........ Trade secrets etc. tendered as evidence............................................ 423

357........ Application of penalty..................................................................... 424

358........ Enforcement of penalties etc............................................................ 424

359........ Regulations..................................................................................... 425

Part 7—Complementary registration systems                                                  427

Division 1—Application of this Part                                                                 427

360........ Complementary registration systems............................................... 427

Division 2—Preliminary                                                                                          428

361........ Definitions...................................................................................... 428

Division 3—Branch rules                                                                                        429

362........ Branch funds................................................................................... 429

363........ Obligations of the FWC in relation to application under section 158 430

364........ Branch autonomy............................................................................ 430

365........ Organisation may participate in State systems................................. 431

Division 4—Amalgamation of organisation and associated body    432

366........ Organisation and associated body may amalgamate........................ 432

367........ Procedure for amalgamation............................................................ 432

Division 5—Exercise of the FWC’s powers                                                  435

368........ Exercise of the FWC’s powers under this Part............................... 435

Schedule 1—Transitionally recognised associations              436

1............ Definitions...................................................................................... 436

2............ Application for transitional recognition........................................... 437

3............ Application of the Fair Work Act to transitionally recognised associations              439

4............ Representation rights of transitionally recognised associations of employees          440

5............ Cancellation of transitional recognition........................................... 440

6............ End of transitional recognition........................................................ 444

7............ Modification of this Act.................................................................. 445

Schedule 2—Recognised State‑registered associations        446

1............ Recognition of State‑registered associations................................... 446

2............ Application of Fair Work Act to recognised State‑registered associations               447

3............ Cancellation of recognition.............................................................. 447

Endnotes                                                                                                                                  451

Endnote 1—About the endnotes                                                                          451

Endnote 2—Abbreviation key                                                                              453

Endnote 3—Legislation history                                                                           454

Endnote 4—Amendment history                                                                         473

Endnote 5—Miscellaneous                                                                                     573


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 FWC 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, divisions or parts 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.

92A  Review of amendments made by the Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Act 2020

             (1)  The Minister must cause a review to be conducted of the operation of the amendments of this Part made by Schedule 1 to the Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Act 2020.

             (2)  The review must be completed, and a written report given to the Minister, no later than the second anniversary of the day the amendments commenced.

             (3)  The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the day the Minister receives the report.

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) of Part 2, or an equivalent provision of a predecessor law, but does not include any such organisation that was subsequently de‑registered under Part 2 or a predecessor law.

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 or a predecessor law.

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 or a predecessor law 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.

designated official has the meaning given by subsection 102(1A).

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.

predecessor law means any of the following:

                     (a)  Part 2 of Chapter 3 of Schedule 1 to the Workplace Relations Act 1996 as in force at any time on or after 27 March 2006;

                     (b)  Part 2 of Chapter 3 of Schedule 1B to the Workplace Relations Act 1996;

                     (c)  Division 7 of Part IX of the Workplace Relations Act 1996 (including of that Act when titled the Industrial Relations Act 1988) as in force at any time after 1 February 1991.

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 or a predecessor law 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; or

                     (c)  any branch, division or part of the amalgamated organisation not covered by paragraph (a) or (b) that is separately identifiable under the rules of the organisation.

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.

workplace or safety law means any of the following:

                     (a)  this Act;

                     (b)  the Fair Work Act;

                     (c)  the Building and Construction Industry (Improving Productivity) Act 2016;

                     (d)  the Work Health and Safety Act 2011;

                     (e)  a State or Territory OHS law (within the meaning of the Fair Work Act).

             (2)  For the purposes of this Part, an organisation is taken to have been de‑registered under Part 2 or a predecessor law in connection with the formation of an amalgamated organisation if the de‑registration occurred in connection with the formation of:

                     (a)  the amalgamated organisation (including that organisation as it existed before any subsequent amalgamation under Part 2 or a predecessor law); or

                     (b)  another organisation that was subsequently de‑registered under Part 2 or a predecessor law 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 or a predecessor law in connection with the formation of the amalgamated organisation.

             (3)  For the purposes of subsection (2), a reference to an organisation is taken to include a reference to an organisation within the meaning of a predecessor law.

             (4)  For the purposes of this Part, a reference to a constituent part becoming part of an amalgamated organisation includes a reference to a constituent part becoming part of that organisation as it existed before any subsequent amalgamation under Part 2 or a predecessor law.

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 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 Part 2 or a predecessor law; 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.

94A  Accepting applications for ballots more than 5 years after amalgamation

             (1)  Despite paragraph 94(1)(c), the FWC may accept an application made under section 94 after the end of the period referred to in that paragraph if the FWC is satisfied that, having regard to the matters set out in subsection (2), it is appropriate to accept the application.

             (2)  The matters are the following:

                     (a)  whether the amalgamated organisation has a record of not complying with workplace or safety laws and any contribution of the constituent part to that record;

Note:       Workplace or safety law is defined for this Part in subsection 93(1).

                     (b)  the likely capacity, of the organisation that the constituent part is to be registered as when the withdrawal from amalgamation takes effect, to promote and protect the economic and social interests of its members.

             (3)  If the FWC considers that an amalgamated organisation has a record of not complying with workplace or safety laws but that the constituent part has not contributed to that record, the FWC must decide that it is appropriate to accept the application.

             (4)  Submissions in relation to the matters mentioned in subsection (2) may only be made by the following persons:

                     (a)  the applicant or applicants, or any person who could have made an application under subsection 94(3) in relation to the proposed withdrawal;

                     (b)  the amalgamated organisation;

                     (c)  the Commissioner.

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.

95A  Proposed names and rules

             (1)  The application must also be accompanied by:

                     (a)  a statement of the name, and a copy of the rules, proposed for the organisation (the new organisation) that the constituent part is to be registered as when the withdrawal from amalgamation takes effect; and

                     (b)  a statement of the name, and a copy of the alterations of the rules, proposed for the amalgamated organisation when the withdrawal from amalgamation takes effect.

             (2)  The name proposed for the new organisation must not be the same as the amalgamated organisation, or so similar to the name of the amalgamated organisation or any other organisation as to be likely to cause confusion.

             (3)  The name proposed for the amalgamated organisation must reflect the withdrawal of the constituent part.

             (4)  The eligibility rules of the new organisation:

                     (a)  must, as far as practical, reflect the application of the eligibility rules of the amalgamated organisation in relation to the constituent part immediately before the application was made; and

                     (b)  must not have the effect of making a class of individuals eligible for membership of the new organisation if that class would not have been eligible for membership of the constituent part immediately before the application was made.

             (5)  The eligibility rules of the amalgamated organisation as proposed to be altered must, as far as practical, avoid an overlap with the eligibility rules of the new organisation.

             (6)  Whether eligibility rules have the effect required by subsections (4) and (5) may be determined by examining the organisational and administrative arrangements for the amalgamated organisation before the application was made.

             (7)  If the applicant has insufficient information to prepare the statement and alterations mentioned in paragraph (1)(b), 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; 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.

             (8)  The General Manager or the Commissioner may provide that information, or direct the amalgamated organisation to provide that information.

             (9)  The amalgamated organisation must comply with a direction of the General Manager or the Commissioner under subsection (8).

Civil penalty:          100 penalty units.

           (10)  The FWC may allow statements of name, or rules or alterations of rules, to be amended by whoever filed them with the FWC.

           (11)  If the FWC is not satisfied that a proposed name complies with subsection (2) or (3), or that proposed rules or alterations of rules comply with subsection (4) or (5), the FWC must order the making of any amendments the FWC considers are needed for compliance with the 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 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

                   (ba)  the material required by section 95A complies with the requirements of that section; 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.

             (4)  If the FWC orders that a ballot be held, the FWC may accept undertakings, from the applicant or applicants, or the amalgamated organisation, that the FWC considers appropriate to avoid demarcation disputes that might otherwise arise from an overlap between:

                     (a)  the eligibility rules proposed for the organisation that the constituent part is to be registered as when the withdrawal from amalgamation takes effect; and

                     (b)  the eligibility rules of the amalgamated organisation as proposed to be altered.

Note:          See also section 110B.

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

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.

          (1A)  Despite subsection (1), if:

                     (a)  an exemption is in force under section 186 (Commissioner may permit organisation or branch to conduct its elections for office) in relation to elections for the constituent part, or any identifiable part of the constituent part, of the amalgamated organisation; and

                     (b)  the applicant or applicants under section 94 apply to the FWC for the purposes of this subsection;

the FWC may, in making an order under section 100 that a ballot be held, allow the ballot to be conducted by an officer of the constituent part (the designated official), with the expenses of conducting the ballot to be borne by the constituent part.

          (1B)  If the FWC makes an order under subsection (1A), it may make any other orders it considers are needed for the conduct of the ballot by the designated official.

          (1C)  A ballot conducted by a designated official must be conducted in accordance with the regulations.

Postal ballots

             (2)  In the case of a postal ballot, 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

                    (aa)  a copy of the material required by section 95A; 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

                    (ca)  a copy of any undertakings accepted by the FWC as mentioned in subsection 100(4); and

                     (d)  the declaration envelope and other envelope required for the purposes of the postal ballot.

             (3)  In any postal ballot conducted under this section, each completed ballot paper must be returned to the AEC, or designated official, 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.

Ballots other than postal ballots

             (4)  The regulations may make provision in relation to ensuring that the constituent members of a constituent part of an amalgamated organisation are given, within a reasonable period before voting in a ballot that is not a postal ballot in connection with a proposal for the constituent part to withdraw from the amalgamated organisation, the material mentioned in paragraphs (2)(a) to (ca).

103  Providing information etc. to person conducting ballot

Requirement to give information to electoral official

             (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.

Requirement to give information to designated official

          (1A)  A designated official may, if:

                     (a)  it is reasonably necessary for the purposes of the ballot; and

                     (b)  the designated official is authorised under this section for the purposes of the ballot by the FWC;

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 designated 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 officer or employee; and

                     (d)  to produce or make available to the designated 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 officer or employee, or to which the officer or employee has access.

          (1B)  If an officer or employee of an organisation fails to comply with a requirement made under subsection (1A), the designated official may apply to the FWC for an order directing the officer or employee to comply with the requirement.

          (1C)  The FWC may make the order if the FWC is satisfied that the requirement is reasonably necessary for the purposes of the ballot.

Offence

             (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) or an order made under subsection (1C).

             (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.

Abrogation of privilege against self‑incrimination

             (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).

Electronic form

             (7)  If any information or document specified in a notice under subsection (1) or (1A) is kept in electronic form, the electoral official, or designated 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) or (1A), or an order is made under subsection 103(1C), 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.

          (1A)  However, the secretary or other prescribed officer is not required to make a declaration under subsection (1) for an order under subsection 103(1C) if a declaration was made for the corresponding requirement under subsection 103(1A).

             (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, or the designated 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 or designated 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 or designated 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 or designated 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 person conducting ballot

             (1)  After the completion of the ballot, the AEC, or the designated official, 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 or designated official 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 or designated official is of the opinion that the register of members, or the part of the register, made available to the AEC or designated official 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)  if the constituent part, or an organisation of which the constituent part was a State or Territory branch, was de‑registered in connection with the formation of the amalgamated organisation—the assets and liabilities of the constituent part or organisation before the de‑registration; and

                     (b)  if paragraph (a) applies—any change in the net value of those assets or liabilities that has occurred since the amalgamation; and

                   (ba)  any rules, arrangements, practices or understandings of the amalgamated organisation under which:

                              (i)  assets of the amalgamated organisation have been held for the benefit of the constituent part; or

                             (ii)  liabilities of the amalgamated organisation have been the responsibility of the constituent part; 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.

110A  Rules and alterations take effect

                   The following take effect from the day determined under paragraph 109(1)(a):

                     (a)  the rules of the newly registered organisation that were proposed for the purposes of section 95A;

                     (b)  the alterations of the rules of the amalgamated organisation that were proposed for the purposes of section 95A.

110B  Undertakings of applicant take effect as undertakings of newly registered organisation

                   An undertaking accepted from the applicant or applicants as mentioned in subsection 100(4) is taken, from the day determined under paragraph 109(1)(a), to be an undertaking accepted from the newly registered organisation.

Note:          At the time the applicant’s or applicants’ undertaking is accepted under subsection 100(4), the newly registered organisation has not come into existence. The amalgamated organisation continues in existence and continues to be bound by its undertakings.

111  Membership 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)  inform the person that the person is now a member of the newly registered organisation.

             (4)  A person referred to in subsection (2):

                     (a)  ceases, by force of this subsection, to be a member of the amalgamated organisation with effect from the end of the day before the newly registered organisation is registered under section 110; 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 start of the day the newly registered organisation is registered under section 110.

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 must not permit a person to hold office after the day that would have been the person’s last day of term in the constituent office if the withdrawal had not occurred.

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: