Workplace Relations Act 1996

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

a federally registrable association of employers;

a federally registrable association of employees;

a federally registrable enterprise association.

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

it is a constitutional corporation; or

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:

an employer;

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

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

an officer of the association.

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

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

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

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

it is a constitutional corporation; or

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:

an employee;

a person specified in subsection (4);

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;

an officer of the association.

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 ; or

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

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

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

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

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

(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:

it is a constitutional corporation; or

some or all of its members are federal system employees; or

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

the relevant enterprise operates principally within or from a Territory; or

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

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

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

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

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

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 , 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 .

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

an employee performing work in the relevant enterprise;

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

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

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

an officer of the association.

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 ; or

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

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

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

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

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

Associations of employers

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.

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:

federal system employers;

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

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

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.

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.

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:

federal system employees;

persons specified in subsection 18B(4);

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.

associations

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:

federal system employees performing work in the relevant enterprise;

persons specified in subsection 18C(4);

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.

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:

the association:

is a genuine association of a kind referred to in paragraph 18(a) or (b); and

is an association for furthering or protecting the interests of its members; and

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

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

in the case of an association of employees—the association has at least 50 members who are employees; and

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

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

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

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

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

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:

to which the members of the association could more conveniently belong; and

that would more effectively represent those members.

If:

there is an organisation to which the members of the association might belong; and

the members of the association could more conveniently belong to the organisation; and

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.

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.

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.

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.

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:

the association:

is a genuine association of a kind referred to in paragraph 18(c); and

is an association for furthering or protecting the interests of its members; and

the association is free from control by, or improper influence from:

any employer, whether at the enterprise in question or otherwise; or

any person or body with an interest in that enterprise; or

any organisation, or any other association of employers or employees; and

the association has at least 20 members who are employees; and

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

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

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

the FWC is satisfied that a majority of the persons eligible to be members of the association support its registration as an organisation; and

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

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.

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.

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.

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:

dismiss an employee;

injure an employee in his or her employment;

alter the position of an employee to the employee’s prejudice;

discriminate against an employee.

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:

terminate a contract for services that he or she has entered into with an independent contractor;

injure an independent contractor in relation to the terms and conditions of the contract for services;

alter the position of an independent contractor to the independent contractor’s prejudice;

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:

under this Act that relates to the formation or registration of an association referred to in paragraph 18(b) or (c); or

in connection with, or in preparation for, such an act or omission.

The following are examples of acts or omissions to which subsection (3) applies:

making an application for registration of an employee association under paragraph 18(b) or (c);

supporting the registration of an employee association (for example, by supporting, or supporting the making of, an application for its registration);

participating, or encouraging a person to participate, in proceedings before the FWC in relation to such an application;

not participating, or encouraging a person not to participate, in such proceedings;

becoming a member, or encouraging a person to become a member, of an employee association.

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.

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:

under this Act that relates to the formation or registration of an association referred to in paragraph 18(b) or (c); or

in connection with, or in preparation for, such an act or omission.

The examples set out in subsection 21(4) are examples of acts or omissions to which subsection (3) of this section applies.

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).

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:

an order imposing on a person whose conduct contravenes that section a penalty of not more than:

in the case of a body corporate—100 penalty units; or

in any other case—20 penalty units;

an order requiring the person not to carry out a threat made by the person, or not to make any further threat;

injunctions (including interim injunctions), and any other orders, that the Court considers necessary to stop the conduct or remedy its effects;

any other consequential orders.

An application for an order under subsection (1) may be made by:

a person against whom the conduct is being, has been, or is threatened to be, taken; or

any other person prescribed by the regulations.

For the purposes of this Division:

action done by one of the following bodies or persons is taken to have been done by an organisation:

the committee of management of the organisation;

an officer or agent of the organisation acting in that capacity;

a member or group of members of the organisation acting under the rules of the organisation;

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

action done by an agent of an employer acting in that capacity is taken to have been done by the employer.

Subparagraphs (1)(a)(iii) and (iv) and paragraph (1)(b) do not apply if:

in relation to subparagraphs (1)(a)(iii) and (iv):

a committee of management of the organisation; or

a person authorised by the committee; or

an officer of the organisation;

has taken reasonable steps to prevent the action; or

in relation to paragraph (1)(b), the employer has taken reasonable steps to prevent the action.

In this section:

officer, in relation to an organisation, includes:

a delegate or other representative of the organisation; and

an employee of the organisation.

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:

to enable it to comply with this Act; or

to remove a ground of objection taken by an objector under the regulations or by the FWC; or

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).

An association granted leave under subsection (1) may change its name, or alter its rules, even though the application for registration is pending.

Rules of an association as altered in accordance with leave granted under subsection (1) are binding on the members of the association:

in spite of anything in the other rules of the association; and

subject to any further alterations lawfully made.

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.

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).

On registration, an association becomes an organisation.

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).

The certificate is, until proof of cancellation, conclusive evidence of the registration of the organisation specified in the certificate.

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.

If:

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

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.

An organisation:

is a body corporate; and

has perpetual succession; and

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

must have a common seal; and

may sue or be sued in its registered name.

In this Part:

alternative provision means a provision of the kind mentioned in subsection 41(1).

amalgamated organisation means the organisation of which members of the de-registered organisations have become members under paragraph 73(3)(d).

amalgamation day means the day fixed under subsection 73(2) in relation to the amalgamation.

asset means property of any kind, and includes: 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 any chose in action; and 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).

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

any chose in action; and

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 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 means the day, from time to time, fixed under section 58 as the closing day of the ballot.

commencing day 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 means an organisation that has been de-registered under this Part.

de-registration means the cancellation of its registration.

holder 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: any contract, deed, undertaking or agreement; and any mandate, instruction, notice, authority or order; and any lease, licence, transfer, conveyance or other assurance; and any guarantee, bond, power of attorney, bill of lading, negotiable instrument or order for the payment of money; and any mortgage, charge, lien or security; whether express or implied and whether made or given orally or in writing.

any contract, deed, undertaking or agreement; and

any mandate, instruction, notice, authority or order; and

any lease, licence, transfer, conveyance or other assurance; and

any guarantee, bond, power of attorney, bill of lading, negotiable instrument or order for the payment of money; and

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 means an instrument: to which a de-registered organisation is a party; or that was given to, by, or in favour of, a de-registered organisation; or in which a reference is made to a de-registered organisation; or 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 in relation to land—means: a legal or equitable estate or interest in the land; or a right, power or privilege over, or in relation to, the land.

to which a de-registered organisation is a party; or

that was given to, by, or in favour of, a de-registered organisation; or

in which a reference is made to a de-registered organisation; or

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

in relation to land—means:

a legal or equitable estate or interest in the land; or

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 means a proceeding to which a de-registered organisation was a party immediately before the amalgamation day.

proposed alternative amalgamation means an amalgamation proposed to be made under an alternative provision.

proposed amalgamated organisation 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: an organisation is, or 2 or more organisations are, to be de-registered under this Part; and members of the organisation or organisations to be de-registered are to become members of another organisation (whether existing or proposed).

an organisation is, or 2 or more organisations are, to be de-registered under this Part; and

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 means an organisation that is to be de-registered under this Part.

proposed principal amalgamation, in relation to a proposed amalgamation, means:

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

in any other case—the proposed amalgamation.

For the purpose of implementing the scheme for a proposed amalgamation, the procedure provided by this Part is to be followed.

Where it appears to the FWC that the performance of an act, including:

the de-registration of an organisation; and

the registration of an organisation; and

the giving of consent to:

a change in the name of an organisation; or

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.

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.

Directions and orders under subsection (3):

have effect subject to any order of the Federal Court; and

have effect despite anything in:

the regulations, or the procedural rules of the FWC made under section 609 of the Fair Work Act; or

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

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

Application for recognition as federation

The existing organisations concerned in a proposed amalgamation may jointly lodge with the FWC an application for recognition as a federation.

The application must:

be lodged before an application is lodged under section 44 in relation to the amalgamation; and

include such particulars as are prescribed.

Grant of application

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

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

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.

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

Federation may vary its composition

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

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

releasing, with the approval of the FWC, an organisation from the federation.

When federation ceases to exist

The federation ceases to exist:

on the day on which the amalgamation takes effect; or

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

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

Nothing in this section limits the right of an organisation belonging to a federation to represent itself or its members.

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:

the committee of management of the organisation has resolved that the organisation should so use its resources; and

the committee of management has given reasonable notice of its resolution to the members of the organisation.

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.

There is to be a scheme for every proposed amalgamation.

The scheme must contain the following matters:

a general statement of the nature of the amalgamation, identifying the existing organisations concerned and indicating:

if one of the existing organisations is the proposed amalgamated organisation—that fact; and

if an association proposed to be registered as an organisation is the proposed amalgamated organisation—that fact and the name of the association; and

the proposed de-registering organisations;

if it is proposed to change the name of an existing organisation—particulars of the proposed change;

if it is proposed to alter the eligibility rules of an existing organisation—particulars of the proposed alterations;

if it is proposed to alter any other rules of an existing organisation—particulars of the proposed alterations;

if an association is proposed to be registered as an organisation—the eligibility and other rules of the association;

such other matters as are prescribed.

Subsection (2) does not limit by implication the matters that the scheme may contain.

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:

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:

the other of the approving organisations; or

2 or more of the other approving organisations; and

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.

If the scheme for a proposed amalgamation contains an alternative provision, the scheme must also contain particulars of:

the differences between the proposed principal amalgamation and each proposed alternative amalgamation; and

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.

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.

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.

Existing organisations may apply for declaration

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.

The application must be lodged:

before an application has been lodged under section 44 in relation to the amalgamation; or

with the application that is lodged under section 44 in relation to the amalgamation.

If the application is lodged before an application has been lodged under section 44 in relation to the amalgamation, the FWC:

must immediately fix a time and place for hearing submissions in relation to the making of the declaration; and

must ensure that all organisations are promptly notified of the time and place of the hearing; and

may inform any other person who is likely to be interested of the time and place of the hearing.

Making of declaration

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

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:

eligible to become members of the other organisation or each of the other organisations; or

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

covered by the same modern awards as members of the other organisation or each of the other organisations; or

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

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.

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:

eligible to become members of the other organisation or each of the other organisations; or

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

covered by the same modern awards as members of the other organisation or each of the other organisations; or

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.

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

If:

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

a declaration is made under this section in relation to the amalgamation; and

an application is not lodged under within 6 months after the declaration is made;section 44 in relation to the amalgamation

the declaration ceases to be in force.

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.

However, before the FWC revokes the declaration, it must:

give reasonable notice of its intention to revoke to each of the organisations that applied for the declaration; and

give each of those organisations an opportunity to be heard.

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.

The application must be accompanied by:

a copy of the scheme for the amalgamation; and

a written outline of the scheme.

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.

The rules of:

an association proposed to be registered as an organisation that is the proposed amalgamated organisation under a proposed amalgamation; or

an existing organisation that is the proposed amalgamated organisation under a proposed amalgamation;

may, despite section 143, make provision in relation to:

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

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:

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

the period that ends 2 years after that day;

whichever ends last, without an ordinary election being held in relation to the office.

Where:

a person holds an office in an organisation, being an office held under rules made under subsection (1); and

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.

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.

Section 145 does not apply to an office held under rules made under subsection (1).

Section 146 applies to an office held under rules made under paragraph (1)(c).

In this section:

ordinary election means an election held under rules that comply with section 143.

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.

The application must be lodged with the application that is lodged under section 44 in relation to the amalgamation.

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.

The application must be lodged with the application that is lodged under section 44 in relation to the amalgamation.

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.

The statement must be lodged with the application that is lodged under section 44 in relation to the amalgamation.

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

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.

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.

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:

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

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:

in the custody or under the control of the person; or

to which the person has access.

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.

An offence against subsection (2) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

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.

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.

However:

giving the information or producing or making available the document; or

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).

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.

If a requirement is made under subsection 51(1) in relation to the register, or part of the register, kept by an organisation under 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).section 230,

Civil penalty: 100 penalty units.

The declaration must be:

signed by the person making it; and

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.

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.

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

must immediately fix a time and place for hearing submissions in relation to:

the granting of an approval for the submission of the amalgamation to ballot; and

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

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

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

must ensure that all organisations are promptly notified of the time and place of the hearing; and

may inform any other person who is likely to be interested of the time and place of the hearing.

Submissions at a hearing arranged under subsection 43(3) or section 53 may only be made under this section.

Submissions may be made by the applicants.

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.

Approval must be given if certain conditions satisfied

If, at the conclusion of the hearing arranged under section 53 in relation to a proposed amalgamation, the FWC is satisfied that:

the amalgamation does not involve the registration of an association as an organisation; and

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

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

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

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

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

If, apart from this subsection, the FWC would be required to refuse to approve the submission of the amalgamation to ballot, the FWC may:

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

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

A permission under paragraph (3)(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

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

may be given subject to conditions.

Powers of the FWC if conditions or undertakings breached

If:

the FWC:

gives a permission under paragraph (3)(a) subject to conditions; or

accepts an undertaking under paragraph (3)(b); and

the conditions are breached or the undertaking is not fulfilled within the period allowed by the FWC;

the FWC may:

amend the scheme for the amalgamation, including any proposed alterations of the rules of the existing organisations concerned in the proposed amalgamation; or

give directions and orders:

in relation to the conduct of the ballot for the amalgamation; or

otherwise in relation to the procedure to be followed in relation to the amalgamation.

Subsection (5) does not limit by implication the powers that the FWC has apart from that subsection.

Powers of the FWC to adjourn proceeding

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.

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

Objection to a matter involved in a proposed amalgamation may only be made to the FWC under this section.

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.

Objection may be made by a prescribed person on a prescribed ground.

The FWC is to hear, as prescribed, all objections duly made to the amalgamation.

Approval must be given if certain conditions satisfied

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:

finds that no duly made objection is justified; and

is satisfied that, so far as the amalgamation involves:

the registration of an association; or

a change in the name of an organisation; or

an alteration of the rules of an organisation; or

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

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

If, apart from this subsection, the FWC would be required to refuse to approve the submission of the amalgamation to ballot, the FWC may:

permit the applicants to alter the scheme for the amalgamation, including:

the rules of any association proposed to be registered as an organisation in relation to the amalgamation; or

any proposed alterations of the rules of the existing organisations concerned in the amalgamation; or

accept an undertaking by the applicants to alter the scheme for the amalgamation, including:

the rules of any association proposed to be registered as an organisation in relation to the amalgamation; or

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

A permission under subparagraph (3)(a)(i):

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

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

may be given subject to conditions.

A permission under subparagraph (3)(a)(ii):

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

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

may be given subject to conditions.

Powers of FWC if conditions or undertakings breached

If:

the FWC:

gives a permission under paragraph (3)(a) subject to conditions; or

accepts an undertaking under paragraph (3)(b); and

the conditions are breached or the undertaking is not fulfilled within the period allowed by the FWC;

the FWC may:

amend the scheme for the amalgamation, including:

the rules of any association proposed to be registered as an organisation in relation to the amalgamation; or

any proposed alterations of the rules of the existing organisations concerned in the amalgamation; or

give directions and orders:

in relation to the conduct of the ballot for the amalgamation; or

otherwise in relation to the procedure to be followed in relation to the amalgamation.

Subsection (6) does not limit by implication the powers that the FWC has apart from that subsection.

Powers of the FWC to adjourn proceeding

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.

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

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.

The commencing day must be a day not later than 28 days after the day on which the approval is given unless:

the FWC is satisfied that the AEC requires a longer period to make the arrangements necessary to enable it to conduct the ballot; or

the existing organisations concerned in the amalgamation request the FWC to fix a later day.

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.

The FWC may, after consulting with the Electoral Commissioner, vary the commencing day or the closing day.

Subsection (4) does not limit by implication the powers of the person conducting a ballot under this Part.

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):

have the right under the rules of the existing organisation concerned to vote at such a ballot; or

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.

“Yes” statement may be altered

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

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

The FWC may permit a statement lodged under subsection (2) to be altered.

“Yes” and “no” statements to be sent to voters

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

If 2 or more statements in opposition to the amalgamation are duly lodged with the FWC under subsection (2):

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

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

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

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.

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

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

In this section:

required minimum number, in relation to an organisation, means:

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

1,000;

whichever is the lesser.

Permission to alter amalgamation scheme

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:

the rules of any association proposed to be registered as an organisation in relation to the amalgamation; or

any proposed alterations of the rules of the existing organisations concerned in the amalgamation.

Permission relating to rules of new organisations

A permission under paragraph (1)(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

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

may be given subject to conditions.

Permission relating to rules of existing organisations

A permission under paragraph (1)(b):

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

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

may be given subject to conditions.

Powers of the FWC if conditions breached

If:

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

the conditions are breached;

the FWC may:

amend the scheme for the amalgamation, including:

the rules of any association proposed to be registered as an organisation in relation to the amalgamation; or

any proposed alterations of the rules of the existing organisations concerned in the amalgamation; or

give directions and orders:

in relation to the conduct of the ballot for the amalgamation; or

otherwise in relation to the procedure to be followed in relation to the amalgamation.

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

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.

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

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.

The FWC:

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

may amend the outline to correct factual errors or otherwise to ensure that it complies with this Act.

If:

an application was lodged under section 46 for exemption from the requirement that a ballot be held in relation to a proposed amalgamation; and

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.

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).

If:

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

the proposal provides for:

the ballot to be by secret ballot of the members of the organisation; and

the ballot to be held at duly constituted meetings of the members; and

the ballot to be conducted by the AEC; and

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

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

absent voting; and

the ballot to be otherwise conducted in accordance with the regulations; and

the FWC is satisfied, after consulting with the Electoral Commissioner:

that the proposal is practicable; and

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.

Ballot on proposed principal amalgamation

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

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

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

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

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

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

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

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

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

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

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

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.

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:

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

in any other case:

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

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

If:

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

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.

If the application is lodged within 12 months after the result of the ballot is declared, the FWC may order:

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

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.

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.

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

the Federal Court; and

the General Manager; and

each applicant under section 44.

The report must include details of the prescribed matters.

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:

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

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

this fact must be included in the report.

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

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.

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:

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

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.

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.

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.

If:

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

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

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.

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

Interference with ballot papers

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

impersonates another person with the intention of:

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

casting a vote; or

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

fraudulently puts a ballot paper or other paper:

into a ballot box or other ballot receptacle; or

into the post; or

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

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

records more than one vote; or

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

provides a ballot paper without authority; or

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

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

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.

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

hinders or obstructs the taking of the ballot; or

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

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

any vote or omission to vote; or

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

any promise of any vote, omission, support or opposition; or

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

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

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:

the relevant person requests, requires or induces another person:

to show a ballot paper to the relevant person; or

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

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.

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

If the FWC is satisfied that:

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

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

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

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

breaches of modern awards or enterprise agreements; or

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

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.

On the amalgamation day:

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

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

the FWC must de-register the proposed de-registering organisations; and

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.

If:

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

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.

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.

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.

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.

On and from the amalgamation day:

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

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

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.

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.

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

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

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.

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

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

the proceeding is to continue as if the amalgamated organisation were, and had always been, the de-registered organisation.

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

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

any contract, deed, undertaking, agreement or other instrument.

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:

is to be regarded as:

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

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

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

any Commonwealth, State or Territory law; or

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

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

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.

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.

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.

Where:

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

a certificate that:

is signed by an authorised person; and

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

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:

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

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

Where:

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

a certificate that:

is signed by an authorised person; and

identifies the charge; and

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:

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

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.

Where:

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

a certificate that:

is signed by an authorised person; and

identifies the share, debenture or interest; and

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.

Where:

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

a certificate that:

is signed by an authorised person; and

identifies the asset; and

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:

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

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.

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

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.

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.

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

an organisation or association concerned in the amalgamation; or

the committee of management of such an organisation or association; or

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.

For the purposes of this section:

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

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

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

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

This section applies:

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

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

Nothing in this section affects:

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

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

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:

an organisation or association concerned in the amalgamation; or

the committee of management of such an organisation or association; or

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.

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.

This section applies:

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

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

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:

the organisation or association concerned; or

members or creditors of the organisation or association concerned; or

persons having dealings with the organisation or association concerned;

the Court must, by order, declare accordingly.

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.

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.

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.

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

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:

to rectify the invalidity or cause it to be rectified; or

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

to validate any act, matter or thing that is made invalid by or because of the invalidity.

Where an order is made under subsection (3), the Court may give such ancillary or consequential directions as it considers appropriate.

The Court must not make an order under subsection (3) without satisfying itself that such an order would not do substantial injustice to:

the organisation or association concerned; or

any member or creditor of the organisation or association concerned; or

any person having dealings with the organisation or association concerned.

This section applies:

to an invalidity whenever occurring (including an invalidity occurring before the commencement of this section); and

to an invalidity occurring in relation to an association before it became an organisation.

The object of this Part is to provide for:

certain organisations that have taken part in amalgamations under this Act to be reconstituted and re-registered; and

branches of organisations of that kind to be formed into organisations and registered;

in a way that is fair to the members of the organisations concerned and the creditors of those organisations.

In this Part, unless the contrary intention appears:

amalgamated organisation means the organisation of which members of a de-registered organisation became members under paragraph 73(3)(d), but does not include any such organisation that was subsequently de-registered under Part 2.

asset has the same meaning as in Part 2.

authorised person 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:

in the case of a separately identifiable constituent part—a member of the amalgamated organisation who is included in that part; or

in any other case—a member of the amalgamated organisation who would be eligible for membership of the constituent part if:

the constituent part; or

the organisation of which the constituent part was a branch;

as the case requires, were still registered as an organisation with the same rules as it had when it was de-registered under Part 2.

constituent part, in relation to an amalgamated organisation, means:

a separately identifiable constituent part; or

a part of the membership of the amalgamated organisation that would have been eligible for membership of:

an organisation de-registered under Part 2 in connection with the formation of the amalgamated organisation; or

a State or Territory branch of such a de-registered organisation;

if the de-registration had not occurred.

debenture has the same meaning as in Part 2.

holder, in relation to a charge, has the same meaning as in Part 2.

instrument has the same meaning as in Part 2.

instrument to which this Part applies means an instrument that immediately before the withdrawal day is an instrument: to which the amalgamated organisation from which a constituent part has withdrawn to form a newly registered organisation is a party; or that was given to, by, or in favour of, the amalgamated organisation; or in which a reference is made to the amalgamated organisation; or 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.

to which the amalgamated organisation from which a constituent part has withdrawn to form a newly registered organisation is a party; or

that was given to, by, or in favour of, the amalgamated organisation; or

in which a reference is made to the amalgamated organisation; or

under which any right or liability accrues or may accrue to the amalgamated organisation in relation to the constituent part of the organisation and its members.

interest has the same meaning as in Part 2.

invalidity has the same meaning as in Part 2.

irregularity includes a breach of the rules of an organisation, but in Division 4 does not include an irregularity in relation to a ballot.

liability has the same meaning as in Part 2.

newly registered organisation means an organisation registered under section 110.

proceeding to which this Part applies 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:

if an organisation de-registered under Part 2 in connection with the formation of the amalgamated organisation remains separately identifiable under the rules of the amalgamated organisation as a branch, division or part of that organisation—that branch, division or part; or

if a State or Territory branch of such a de-registered organisation under its rules as in force immediately before its de-registration remains separately identifiable under the rules of the amalgamated organisation as a branch, division or part of that organisation—that branch, division or part.

withdrawal day means the day fixed under paragraph 109(1)(a) in relation to the withdrawal from amalgamation.

For the purposes of this Part, an organisation is taken to have been de-registered under Part 2 in connection with the formation of an amalgamated organisation if the de-registration occurred in connection with the formation of:

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

another organisation that was subsequently de-registered under Part 2 in connection with the formation of:

the amalgamated organisation; or

an organisation that, through one or more previous applications of this subsection, is taken to have been de-registered under Part 2 in connection with the formation of the amalgamated organisation.

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.

An application may be made to the FWC for a secret postal ballot to be held, to decide whether a constituent part of an amalgamated organisation should withdraw from the organisation, if:

the constituent part became part of the organisation as a result of an amalgamation under Part 2; and

the amalgamation occurred no less than 2 years prior to the date of the application; and

the application is made before the period of 5 years after the amalgamation occurred has elapsed.

However, an application cannot be made if:

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

a ballot was held that rejected the withdrawal of the constituent part.

The application may be made by:

the prescribed number of constituent members; or

a person authorised to make the application by the prescribed number of constituent members; or

a committee of management elected entirely or substantially by the constituent members, whether by a direct voting system or a collegiate electoral system; or

if the application relates to a separately identifiable constituent part—the committee of management of that part; or

a person who is:

either a constituent member or a member of a committee of management referred to in paragraph (b) or (c); and

authorised to make the application by a committee of management referred to in paragraph (b) or (c).

The application must be in the prescribed form and must contain such information as is prescribed.

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).

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.

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:

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

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

address such other matters as are prescribed.

The outline may, if the FWC allows, consist of more than 3,000 words.

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.

If the applicant has insufficient information to prepare an outline that complies with subsection (3), the applicant may request the General Manager to:

give the applicant all information in the possession of the General Manager that may be relevant in the preparation of the outline; or

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.

The General Manager may provide that information, or direct the amalgamated organisation to provide that information.

The amalgamated organisation must comply with a direction of the General Manager under subsection (3B).

Civil penalty: 100 penalty units.

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.

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.

The statement must either:

accompany the application; or

be filed within such later time as the FWC allows.

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.

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.

The statement must be filed either:

not later than 7 days before the day set down for the hearing of the application in question by the FWC; or

within such later time as the FWC allows.

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.

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.

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.

If an application is made under section 94, the General Manager must immediately notify the AEC of the application.

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.

The FWC must order that a vote of the constituent members be taken by secret postal ballot, to decide whether the constituent part of the amalgamated organisation should withdraw from the organisation, if the FWC is satisfied that:

the application for the ballot is validly made under section 94; and

the outline under section 95 relating to the application:

is a fair and accurate representation of the proposal for withdrawal from the organisation; and

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

the proposal for withdrawal from the organisation complies with any requirements specified in the regulations.

In considering whether to order that a ballot be held, the FWC may hear from:

an applicant for the ballot; and

the amalgamated organisation; and

a creditor of the amalgamated organisation; and

any other person who would be affected by the withdrawal of the constituent part from the amalgamated organisation.

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.

A constituent member of an amalgamated organisation is not eligible to vote in a ballot under this Division unless the person:

is a financial member of the organisation; or

is in a class of members prescribed for the purposes of this section.

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.

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 copy of the outline under section 95 relating to the proposed withdrawal; and

if there is a statement under section 96 in support of the proposed withdrawal—a copy of that statement; and

if there is a statement under section 97 in opposition to the proposed withdrawal—a copy of that statement; and

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

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

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

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

An electoral official may, if:

it is reasonably necessary for the purposes of a ballot that may be, or is, required to be held; and

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:

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

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.

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).

An offence against subsection (2) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

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.

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.

However:

giving the information or producing or making available the document; or

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).

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.

If a requirement is made under subsection 103(1) in relation to the register, or part of the register, kept by an organisation under 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).section 230,

Civil penalty: 100 penalty units.

The declaration must be:

signed by the person making it; and

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.

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.

Interference with ballot papers

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

impersonates another person with the intention of:

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

casting a vote; or

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

fraudulently puts a ballot paper or other paper:

into a ballot box or other ballot receptacle; or

into the post; or

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

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

records more than one vote; or

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

provides a ballot paper without authority; or

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

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

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.

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

hinders or obstructs the taking of the ballot; or

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

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

any vote or omission to vote; or

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

any promise of any vote, omission, support or opposition; or

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

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

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:

the relevant person requests, requires or induces another person:

to show a ballot paper to the relevant person; or

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

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.

Within 14 days after the closing day of a ballot, the electoral official conducting the ballot must prepare, date and sign a certificate showing, in relation to the ballot:

the total number of persons on the roll of voters; and

the total number of ballot papers issued; and

the total number of ballot papers received by the electoral official; and

the total number of votes in favour of the question set out on the ballot paper; and

the total number of votes not in favour of the question set out on the ballot paper; and

the total number of informal ballot papers.

Immediately after signing a certificate referred to in subsection (1), the electoral official must give a copy of the certificate to:

the General Manager; and

if the applicant was a person mentioned in paragraph 94(3)(aa), (b), (c) or (d)—each applicant; and

the amalgamated organisation from which the constituent part withdrew or sought to withdraw.

Immediately after signing a certificate referred to in subsection (1), the electoral official must make a copy of the certificate available in any way that it considers appropriate to each applicant under paragraph 94(3)(a).

After the completion of the ballot, the AEC must give a report on the conduct of the ballot to:

the General Manager; and

if the applicant was a person mentioned in paragraph 94(3)(aa), (b), (c) or (d)—each applicant; and

the amalgamated organisation from which the constituent part withdrew or sought to withdraw.

After the completion of the ballot, the AEC must make a report on the conduct of the ballot available in any way that it considers appropriate to each applicant under paragraph 94(3)(a).

The report must include details of the prescribed matters.

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:

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

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

this fact must be included in the report.

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.

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:

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

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.

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.

The powers of the FWC under this Division are exercisable by:

the President; or

if the President directs—a Full Bench of which the President is a member.

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:

determine the day on which the withdrawal is to take effect; and

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

make such other orders as it thinks fit in connection with giving effect to the withdrawal.

In making an order under paragraph (1)(b), the Court must have regard to:

the assets and liabilities of the constituent part before it, or the organisation of which it was a State or Territory branch, was de-registered under Part 2 in connection with the formation of the amalgamated organisation; and

any change in the net value of those assets or liabilities that has occurred since the amalgamation; and

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

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

the interests of the creditors of the amalgamated organisation.

An application to the Court under subsection (1) may be made by:

the prescribed number of constituent members; or

a person authorised to make the application by the prescribed number of constituent members; or

a committee of management elected entirely or substantially by the constituent members, whether by a direct voting system or a collegiate electoral system; or

if the application relates to a separately identifiable constituent part—the committee of management of that part; or

a person who is:

either a constituent member or a member of a committee of management referred to in paragraph (c) or (d); and

authorised to make the application by a committee of management referred to in paragraph (c) or (d).

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).

The application must be in the prescribed form and must contain such information as is prescribed.

The regulations may prescribe the manner in which an authorisation for the purposes of paragraph (3)(b) and subparagraph (e)(ii) must be made.

The General Manager must, with effect from the day determined under paragraph 109(1)(a):

register the constituent part as an organisation in the register kept under subsection 13(1); and

enter in the register such other particulars in relation to the organisation as are prescribed.

This section applies in the case of a withdrawal from amalgamation under this Part by a separately identifiable constituent part of an amalgamated organisation.

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.

The statement must:

inform the person of the withdrawal from amalgamation of the constituent part; and

(b) invite the person to give written notice, within a period of 28 days after being sent the statement (the notice period), to the amalgamated organisation or to the newly registered organisation that:

the person wants to remain a member of the amalgamated organisation; or

the person wants to become a member of the newly registered organisation; and

explain the effect of responding, or failing to respond, to the invitation.

As soon as practicable after the amalgamated organisation receives a notice under paragraph (3)(b), it must notify the newly registered organisation of the receipt.

As soon as practicable after the newly registered organisation receives a notice under paragraph (3)(b), it must notify the amalgamated organisation of the receipt.

If a person referred to in subsection (2) gives written notice in accordance with paragraph (3)(b), within the notice period, that the person wants to become a member of the newly registered organisation, the person:

ceases, by force of this subsection, to be a member of the amalgamated organisation with effect from the end of the day on which the notice is received by the amalgamated organisation or the newly registered organisation (as the case may be); and

becomes, by force of this subsection and without payment of entrance fee, a member of the newly registered organisation with effect from the day after the day referred to in paragraph (a) of this subsection.

If a person referred to in subsection (2) gives written notice in accordance with paragraph (3)(b), within the notice period, that the person wants to remain a member of the amalgamated organisation, the person remains a member of the amalgamated organisation.

If a person referred to in subsection (2) fails to give written notice in accordance with paragraph (3)(b), the person:

ceases, by force of this subsection, to be a member of the amalgamated organisation with effect from the end of the day after the end of the notice period; and

becomes, by force of this subsection and without payment of entrance fee, a member of the newly registered organisation with effect from the day after the day referred to in paragraph (a) of this subsection.

A person who ceases to be a member of the amalgamated organisation because of the operation of subsection (6):

is not liable to make any payment because the person gave no notice, or insufficient notice, of ceasing to be such a member under the rules of the organisation; and

otherwise, remains liable for such payments as are due in accordance with those rules.

Despite subsection (8), if a person to whom that subsection would apply, at any time before the day upon which the constituent part is registered as an organisation under section 110, gives notice in writing to the amalgamated organisation or to the applicant for a ballot under section 94 that the person wishes to remain a member of the amalgamated organisation after the registration of the constituent part as an organisation under section 110, the person remains a member of the amalgamated organisation.

As soon as practicable after the end of the notice period, the amalgamated organisation must notify the newly registered organisation of any notices under subsection (10) it has received.

As soon as practicable after the end of the notice period, the newly registered organisation must notify the amalgamated organisation of any notices under subsection (10) the applicant under section 94 has received.

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.

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.

On and from the day the registration takes effect, the order, award or agreement:

covers the newly registered organisation and its members; and

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.

This section applies to an enterprise agreement that:

is made on or after the day the registration takes effect; and

covers the amalgamated organisation; and

covers employees who are eligible to be members of the newly registered organisation.

On and from the day the agreement covers the amalgamated organisation, it also:

covers the newly registered organisation and its members; and

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.

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.

An agreement:

in force under section 151 immediately before the day on which registration of a newly registered organisation takes effect; and

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.

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.

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

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.

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:

was pending at that day; and

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:

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

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.

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

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

any contract, deed, undertaking, agreement or other instrument.

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:

is to be regarded as:

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

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

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

any Commonwealth, State or Territory law; or

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

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

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.

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:

the amalgamated organisation concerned;

the constituent part concerned;

the newly registered organisation concerned.

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.

Where:

land or an interest in land becomes, under this Division, land or an interest in land of a newly registered organisation; and

a certificate that:

is signed by an authorised person; and

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

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:

register the matter in the same way as dealings in land or interests in land of that kind are registered; and

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.

Where:

a newly registered organisation becomes, under this Division, the holder of a charge; and

a certificate that:

is signed by an authorised person; and

identifies the charge; and

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:

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

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.

Where:

a newly registered organisation becomes, under this Division, the holder of a share, debenture or interest in a company; and

a certificate that:

is signed by an authorised person; and

identifies the share, debenture or interest; and

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.

Where:

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

a certificate that:

is signed by an authorised person; and

identifies the asset; and

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:

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

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.

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

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.

However, the rules must not permit a person to hold office after the later of:

the day that would have been the person’s last day of term in the constituent office if the withdrawal had not occurred; and

the first anniversary of the withdrawal day.

The regulations may provide for any other matters relating to giving effect to the withdrawal of constituent parts from amalgamated organisations.

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.

An order made under subsection (1) has effect despite any Commonwealth, State or Territory law.

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:

the amalgamated organisation concerned; or

the committee of management, or an officer, of that organisation; or

the constituent part concerned; or

the committee of management, or an officer, of that part; or

the newly registered organisation concerned; or

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.

For the purposes of this section:

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

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

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

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

This section applies to an act whenever done (including an act done before the commencement of this section).

Nothing in this section affects:

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

the operation of section 108, 118 or 125 or Part 2 of Chapter 11 (validation provisions for organisations).

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:

the amalgamated organisation concerned; or

the committee of management, or an officer, of that organisation; or

the constituent part concerned; or

the committee of management, or an officer, of that part; or

the newly registered organisation concerned; or

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.

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.

This section applies to an act whenever done (including an act done before the commencement of this section).

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:

the amalgamated organisation from which a constituent part withdrew to form a newly registered organisation, or the constituent part; or

members or creditors of the amalgamated organisation or the constituent part; or

persons having dealings with the amalgamated organisation or the constituent part; or

the newly registered organisation; or

members or creditors of the newly registered organisation; or

persons having dealings with the newly registered organisation;

the Court must, by order, declare accordingly.

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.

The Court may make an order under subsection (1) on the application of:

the amalgamated organisation; or

the constituent part; or

the newly registered organisation; or

a member of, or any other person having a sufficient interest in relation to, a body referred to in paragraph (a), (b) or (c).

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:

the amalgamated organisation concerned;

the constituent part concerned;

the newly registered organisation concerned;

a member of, or any other person having a sufficient interest in relation to, a body referred to in paragraph (a), (b) or (c).

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

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:

to rectify the invalidity or cause it to be rectified; or

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

to validate any act, matter or thing that is made invalid by or because of the invalidity.

Where an order is made under subsection (3), the Court may give such ancillary or consequential directions as it considers appropriate.

The Court must not make an order under subsection (3) without satisfying itself that such an order would not do substantial injustice to:

the amalgamated organisation; or

a member or creditor of the amalgamated organisation; or

the constituent part; or

a constituent member of the constituent part; or

the newly registered organisation; or

a member or creditor of the newly registered organisation; or

any other person having dealings with the amalgamated organisation, the constituent part or the newly registered organisation.

This section applies to an invalidity whenever occurring (including an invalidity occurring before the commencement of this section).

Neither of the following constitutes a breach of the rules of an amalgamated organisation:

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;

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).

The following are examples of acts and omissions to which subsection (1) applies:

making an application under section 94;

supporting, or supporting the making of, an application under section 94;

participating in, or encouraging a person to participate in, a ballot under Division 2;

not participating in a ballot under Division 2;

encouraging a person not to participate in a ballot under Division 2;

casting a vote in a particular way in a ballot under Division 2;

encouraging a person to cast a vote in a particular way in a ballot under Division 2;

complying with an order or requirement made under this Part or regulations made for the purposes of this Part; or

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.

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 member or officer of the organisation; or

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.

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):

an order imposing on a person whose conduct contravenes that subsection a penalty of not more than:

in the case of a body corporate—100 penalty units; or

in any other case—20 penalty units;

an order requiring the person not to carry out a threat made by the person, or not to make any further threat;

injunctions (including interim injunctions), and any other orders, that the Court considers necessary to stop the conduct or remedy its effects;

any other consequential orders.

An application for an order under subsection (2) may be made by:

a person against whom the conduct is being, has been, or is threatened to be, taken; or

any other person prescribed by the regulations.

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:

the committee of management of the amalgamated organisation;

an officer or agent of the amalgamated organisation acting in that capacity;

a member or group of members of the amalgamated organisation acting under the rules of the organisation;

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.

Paragraphs (4)(c) and (d) do not apply if:

a committee of management of the amalgamated organisation; or

a person authorised by the committee; or

an officer of the amalgamated organisation;

has taken reasonable steps to prevent the action.

In this section:

amalgamated organisation includes a branch of an amalgamated organisation.

officer, in relation to an amalgamated organisation, includes:

a delegate or other representative of the organisation; and

an employee of the organisation.

An organisation must have rules that make provision as required by this Act.

A rule of an organisation making provision required by this Act to be made may be mandatory or directory.

The rules of an organisation:

must specify the purposes for which the organisation is formed and the conditions of eligibility for membership; and

must provide for:

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

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

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

the removal of holders of offices in the organisation and its branches; and

the control of committees of the organisation and its branches respectively by the members of the organisation and branches; and

the manner in which documents may be executed by or on behalf of the organisation; and

the manner of notifying the FWC of industrial disputes; and

the times when, and the terms on which, persons become or cease (otherwise than by resignation) to be members; and

the resignation of members under section 174; and

the manner in which the property of the organisation is to be controlled and its funds invested; and

the yearly or other more frequent audit of the accounts; and

the conditions under which funds may be spent; and

the keeping of a register of the members, arranged, where there are branches of the organisation, according to branches; and

the manner in which its rules may be altered; and

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:

misappropriation of the funds of the organisation; or

a substantial breach of the rules of the organisation; or

gross misbehaviour or gross neglect of duty;

or has ceased, under the rules of the organisation, to be eligible to hold the office; and

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

must require the organisation to inform applicants for membership, in writing, of:

the financial obligations arising from membership; and

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).

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.

The rules of an organisation may also provide for any other matter.

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.

The rules of an organisation:

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

must not be such as to prevent or hinder members of the organisation from:

observing the law or the provisions of a modern award, an order of the FWC or an enterprise agreement; or

entering into written agreements under a modern award, an order of the FWC or an enterprise agreement; and

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

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.

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.

(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.

A notice under subsection (1) is not a legislative instrument.

The rules of an organisation:

must provide for the election of the holder of each office in the organisation by:

a direct voting system; or

a collegiate electoral system that, in the case of a full-time office, is a one-tier collegiate electoral system; and

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

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

must make provision for:

the manner in which persons may become candidates for election; and

the duties of returning officers; and

the declaration of the result of an election; and

must provide that, where a ballot is required, it must be a secret ballot, and must make provision for:

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

absent voting; and

the conduct of the ballot; and

the appointment, conduct and duties of scrutineers to represent the candidates at the ballot; and

must be such as to ensure, as far as practicable, that no irregularities can occur in relation to an election.

Without limiting section 142, the rules of an organisation relating to elections may provide for compulsory voting.

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.

A reference in this section to the rules of an organisation includes a reference to the rules of a branch of the organisation.

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.

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.

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.

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.

If the General Manager is satisfied, on application by an organisation under subsection (2):

that the proposed alterations of the rules:

comply with and are not contrary to this Act (other than subsection (1)), the Fair Work Act, modern awards or enterprise agreements; and

are not otherwise contrary to law; and

have been decided on under the rules of the organisation; and

that the conduct of a ballot under the rules of the organisation as proposed to be altered:

is likely to result in a fuller participation by members of the organisation in the ballot than would result from a postal ballot; and

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).

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).

An exemption under subsection (3) remains in force until revoked under subsection (6).

The General Manager may revoke an exemption granted to an organisation under subsection (3):

on application by the organisation, if the General Manager is satisfied that the rules of the organisation comply with subsection (1); or

if the General Manager is no longer satisfied:

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

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.

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).

An alteration of the rules of an organisation determined under subsection (7) takes effect on the date of the instrument.

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.

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.

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.

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.

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.

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.

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:

12 months; or

three-quarters of the term of the office;

whichever is the greater.

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.

A reference in this section to the rules of an organisation includes a reference to the rules of a branch of the organisation.

In this section:

ordinary election means an election held under rules that comply with section 143.

relevant provisions, in relation to an organisation, means:

the provisions of this Act (other than this section); and

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.

(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.

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.

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.

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:

has satisfied itself:

that the making of the loan, grant or donation would be in accordance with the other rules of the organisation; and

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

has approved the making of the loan, grant or donation.

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:

is for the purpose of relieving the member or any of the member’s dependants from severe financial hardship; and

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.

In considering whether to approve a loan, grant or donation made under subsection (2), the committee of management must have regard to:

whether the loan, grant or donation was made under the rules of the organisation; and

in the case of a loan:

whether the security (if any) given for the repayment of the loan is adequate; and

whether the arrangements for the repayment of the loan are satisfactory.

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.

For the purposes of the application of this Division to a branch of an organisation, the members of the organisation constituting the branch are taken to be members of the branch.

Subdivision B—Agreements between organisations and State unions

In this Subdivision:

ineligible State members 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 ; or

(b) the Industrial Relations Act 1999 of ; or

(c) the Industrial Relations Act 1979 of ; or

(d) the Industrial and Employee Relations Act 1994 of ; or

an Act of a State that is prescribed for the purposes of this Subdivision.

State union, in relation to an organisation, means:

an association of employees which is registered under a State Act; or

an association of employees in 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.

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.

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.

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).

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.

The FWC must not give such a direction to the General Manager unless the FWC is satisfied that the agreement:

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; or

any subsisting order made by the FWC relating to the organisation’s eligibility rules; or

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

was entered into only for the purpose of:

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

encouraging and facilitating an amalgamation between the organisation and another organisation of employees.

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).

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).

If it appears to the FWC:

of its own motion; or

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.

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.

The General Manager must as soon as practicable:

give notice of the termination to each party to the agreement; and

enter particulars of the termination in the register kept under subsection 13(1).

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.

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).

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.

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.

The agreements must be in the prescribed form.

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.

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).

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.

The FWC must not give such a direction to the General Manager unless the FWC is satisfied that the agreement:

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

does not adversely affect the interests of any lessor, lessee or creditor of the organisation or State union.

(1) An organisation or a State union who is a party to an agreement made under section 152 agreement) may apply to the Federal Court for orders:section 152 (a

requiring the other party to comply with the agreement; or

resolving any difficulty in the operation or interpretation of the agreement;

and the Court may make such orders as it thinks fit.

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.

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.

(1) If an organisation and a State union agree, in writing, to terminate an agreement made under 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.section 152 (a

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

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.

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:

the positions of the organisation and State union in relation to their respective assets and liabilities before the section 152 agreement took effect;

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;

how the interests of lessors, lessees or creditors of the organisation and the State union will be affected by the termination and subsequent arrangements;

any other factor that the Court considers relevant.

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.

A termination agreement takes effect on the day specified by the Court. The day specified by the Court must not be a day earlier than the day on which the Court approves the agreement.

Subdivision BA—Branches of organisations

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.

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).

The branch fund may consist of:

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

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

interest, rents, dividends or other income derived from the investment or use of the fund; and

a superannuation or long service leave or other fund operated or controlled by the branch for the benefit of its officers or employees; and

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

property acquired wholly or mainly by expenditure of the money of the fund or derived from other assets of the fund; and

the proceeds of a disposal of parts of the fund.

Subdivision C—Miscellaneous

The powers of the FWC under this Division are exercisable only by the President, a Vice President or a Deputy President.

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.

Alterations determined under subsection (1) take effect on the date of the instrument.

If:

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

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.

The FWC must give the organisation and the other organisation an opportunity, as prescribed, to be heard on the matter.

Alterations determined under subsection (1) take effect on the date of the instrument.

A change in the name of an organisation, or an alteration of the eligibility rules of an organisation, does not take effect unless:

in the case of a change in the name of the organisation—the FWC consents to the change under this section; or

in the case of an alteration of the eligibility rules of the organisation:

the FWC consents to the alteration under this section; or

the General Manager consents to the alteration under section 158A.

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.

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:

is not the same as the name of another organisation; and

is not so similar to the name of another organisation as to be likely to cause confusion.

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:

to which those persons could more conveniently belong; and

that would more effectively represent those members.

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.

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.

The FWC may also refuse to consent to an alteration of the eligibility rules of an organisation if it:

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

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.

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.

Where the FWC consents, under subsection (1), to a change or alteration, the change or alteration takes effect on:

where a date is specified in the consent—that date; or

in any other case—the day of the consent.

This section does not apply to a change in the name, or an alteration of the eligibility rules, of an organisation that is:

determined by the FWC under subsection 163(7); or

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

proposed to be made for the purposes of a withdrawal from amalgamation under Part 3 of Chapter 3.

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:

that the alteration has been made under the rules of the organisation; and

that the organisation is a federal counterpart of the association; and

that the alteration will not extend the eligibility rules of the organisation beyond those of the association; and

that the alteration will not apply outside the limits of the State or Territory for which the association is registered; and

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).

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 Legislation Act 2003 does not apply to the declaration.section 42 (disallowance) of the

If the General Manager consents, under subsection (1), to an alteration, the alteration takes effect on:

if a day is specified in the consent—that day; or

in any other case—the day of the consent.

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:

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; and

has been made under the rules of the organisation.

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.

An alteration of rules that has been certified under subsection (1) takes effect on the day of certification.

This section does not apply in relation to an alteration of the rules of an organisation that is:

proposed to be made in relation to an application for an exemption from subsection 144(1); or

determined or certified by the General Manager under subsection 144(7) or section 156, 163, 246, 247 or 249; or

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

proposed to be made for the purposes of a withdrawal from amalgamation under Part 3 of Chapter 3.

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:

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

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.

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.

The powers of the FWC under this Division are exercisable only by the President, a Vice President or a Deputy President.

This Part imposes certain limitations and requirements on people who hold, or wish to hold, office in an organisation and who have been convicted of a prescribed offence (see Division 2).

This Division imposes certain limitations and requirements on people who hold, or wish to hold, office in an organisation and who have been convicted of a prescribed offence.

Section 215 sets out the basic limitation for people convicted of a prescribed offence. The remaining sections in this Division deal with the ways the rule in section 215 operates and may be modified.

In this Division, a prescribed offence is:

an offence under a law of the Commonwealth, a State or Territory, or another country, involving fraud or dishonesty and punishable on conviction by imprisonment for a period of 3 months or more; or

an offence against section 51, 72, 105, 185, 191, subsection 193(2), section 194, 195, 199, subsection 202(5) or section 290A or 337BE; or

any other offence in relation to the formation, registration or management of an association or organisation; or

any other offence under a law of the Commonwealth, a State or Territory, or another country, involving the intentional use of violence towards another person, the intentional causing of death or injury to another person or the intentional damaging or destruction of property.

For the purposes of this Division, a person:

is convicted of a prescribed offence whether the person is convicted before or after the commencement of this Part; and

is not convicted of a prescribed offence merely because the person is convicted, otherwise than on indictment, of an offence referred to in paragraph 212(c); and

is not convicted of a prescribed offence referred to in paragraph 212(d) unless the person was sentenced to a term of imprisonment for the offence and either:

the person has served, or is serving, a term of imprisonment for the offence; or

the sentence is suspended for a period.

Note: Other terms used in this Part may be defined in section 6.

(1) For the purposes of this Division, the exclusion period in relation to a person who has been convicted of a prescribed offence means a period of 5 years beginning on the latest of the following days:

the day on which the person was convicted of the prescribed offence;

if the person was sentenced to a term of imprisonment for the offence, the sentence was suspended for a period, and the person is not imprisoned for the offence during the period—the day immediately after the end of the period;

if the person serves a term of imprisonment for the offence—the day on which the person is released from prison.

(2) For the purposes of this Division, a reduced exclusion period means a period specified by the Federal Court for the purposes of subparagraph 215(1)(a)(ii) under paragraph 216(2)(b) or 217(2)(b).

A certificate purporting to be signed by the registrar or other proper officer of a federal court, a court of a State or Territory, or a court of another country, stating that a person was convicted by the court of a specified offence on a specified day is, for the purpose of an application made under section 215, 216 or 217, evidence that the person was convicted of the offence on that day.

A certificate purporting to be signed by the registrar or other proper officer of a federal court, a court of a State or Territory, or a court of another country, stating that a person was acquitted by the court of a specified offence, or that a specified charge against the person was dismissed by the court, is, for the purpose of an application made under section 215, 216 or 217, evidence of the facts stated in the certificate.

A certificate purporting to be signed by the officer in charge of a prison stating that a person was released from the prison on a specified day is, for the purpose of an application made under section 215, 216 or 217, evidence that the person was released from the prison on that day.

A certificate purporting to be signed by the registrar or other proper officer of a federal court, a court of a State or Territory, or a court of another country, stating that the sentence of a person who was convicted of a specified offence has been suspended for a specified period is, for the purpose of an application made under section 215, 216 or 217, evidence that the sentence was suspended for that period.

A person who has been convicted of a prescribed offence is not eligible to be a candidate for an election, or to be elected or appointed, to an office in an organisation unless:

on an application made under section 216 or 217 in relation to the conviction of the person for the prescribed offence:

the person was granted leave to hold office in organisations; or

the person was refused leave to hold office in organisations but, under paragraph 216(2)(b) or 217(2)(b), the Federal Court specified a reduced exclusion period, and that period has elapsed; or

in any other case—the exclusion period has elapsed.

Where a person who holds an office in an organisation is convicted of a prescribed offence, the person ceases to hold the office at the end of the period of 28 days after the conviction unless, within the period, the person makes an application to the Federal Court under section 216 or 217.

If a person who holds an office in an organisation makes an application to the Federal Court under section 216 or 217 and the application is not determined:

except in a case to which paragraph (b) applies—within the period of 3 months after the date of the application; or

if the Court, on application by the person, has extended the period—within that period as extended;

the person ceases to hold the office at the end of the period of 3 months or the period as extended, as the case may be.

The Court must not, under paragraph (3)(b), extend a period for the purposes of subsection (3) unless:

the application for the extension is made before the end of the period of 3 months referred to in paragraph (3)(a); or

if the Court has previously extended the period under paragraph (3)(b)—the application for the further extension is made before the end of the period as extended.

An organisation, a member of an organisation or the General Manager may apply to the Federal Court for a declaration whether, because of the operation of this section or section 216 or 217:

a person is not, or was not, eligible to be a candidate for election, or to be elected or appointed, to an office in the organisation; or

a person has ceased to hold an office in the organisation.

The granting to a person, on an application made under section 216 or 217 in relation to a conviction of the person for a prescribed offence, of leave to hold offices in organisations does not affect the operation of this section or section 216 or 217 in relation to another conviction of the person for a prescribed offence.

A person who:

wants to be a candidate for election, or to be appointed, to an office in an organisation; and

within the immediately preceding 5 years:

has been convicted of a prescribed offence; or

has been released from prison after serving a term of imprisonment in relation to a conviction for a prescribed offence; or

has completed a suspended sentence in relation to a conviction for a prescribed offence;

may, subject to subsection (4), apply to the Federal Court for leave to hold office in organisations.

Where a person makes an application under subsection (1), the Court may:

grant the person leave to hold office in organisations; or

refuse the person leave to hold office in organisations and specify, for the purposes of subsection 215(1), a period of less than 5 years beginning on the latest of the following days:

the day on which the person was convicted of the prescribed offence;

if the person was sentenced to a term of imprisonment for the offence, the sentence was suspended for a period, and the person is not imprisoned for the offence during the period—the day immediately after the end of the period;

if the person serves a term of imprisonment for the offence—the day on which the person is released from prison.

refuse a person leave to hold office in organisations.

A person who:

holds an office in an organisation; and

is convicted of a prescribed offence; and

on an application made under subsection (1) in relation to the conviction for the prescribed offence, is, under paragraph (2)(b) or (c), refused leave to hold office in organisations;

ceases to hold the office in the organisation.

A person is not entitled to make an application under this section in relation to the person’s conviction for a prescribed offence if the person has previously made an application under this section or under section 217 in relation to the conviction.

Where a person who holds an office in an organisation is convicted of a prescribed offence, the person may, subject to subsection (4), within 28 days after the conviction, apply to the Federal Court for leave to hold office in organisations.

Where a person makes an application under subsection (1) for leave to hold office in organisations, the Court may:

grant the person leave to hold office in organisations; or

refuse the person leave to hold office in organisations and specify, for the purposes of subsection 215(1), a period of less than 5 years beginning on the latest of the following days:

the day on which the person was convicted of the prescribed offence;

if the person was sentenced to a term of imprisonment for the offence, the sentence was suspended for a period, and the person is not imprisoned for the offence during the period—the day immediately after the end of the period;

if the person serves a term of imprisonment for the offence—the day on which the person is released from prison.

refuse the person leave to hold office in organisations.

A person who, on an application made under subsection (1), is, under paragraph (2)(b) or (c), refused leave to hold office in organisations ceases to hold the office concerned.

A person is not entitled to make an application under this section in relation to the person’s conviction for a prescribed offence if the person has previously made an application under this section or section 216 in relation to the conviction.

For the purposes of exercising the power under section 216 or 217 to grant or refuse leave, to a person who has been convicted of a prescribed offence, to hold office in organisations, the Federal Court must have regard to:

the nature of the prescribed offence; and

the circumstances of, and the nature of the person’s involvement in, the commission of the prescribed offence; and

the general character of the person; and

the fitness of the person to be involved in the management of organisations, having regard to the conviction for the prescribed offence; and

any other matter that, in the Court’s opinion, is relevant.

The Federal Court may, in spite of anything in the rules of any organisation concerned, make such order to give effect to a declaration made under subsection 215(5) as it considers appropriate.

Where an application is made to the Court under subsection 215(5):

the person whose eligibility, or whose holding of office, is in question must be given an opportunity of being heard by the Court; and

if the application is made otherwise than by the organisation concerned—the organisation must be given an opportunity of being heard by the Court.

Where an application is made to the Court under section 216 or 217, the organisation concerned must be given an opportunity of being heard by the Court.

Nothing in this Part affects the operation of Crimes Act 1914 (which includes provisions relieving persons from requirements to disclose spent convictions).Part VIIC of the

This Part sets out the requirements that are placed on organisations in relation to financial records, accounting and auditing.

It provides for reports to be provided on the basis of reporting units. A reporting unit may be the whole of an organisation or one or more branches of an organisation.

Division 2 provides for the reporting units.

Division 3 sets out the accounting obligations for reporting units.

Division 4 provides for auditors to be appointed and sets out the powers and duties of the auditors and the duties that others have in relation to auditors.

Division 5 sets out the reporting requirements that reporting units must comply with.

Division 6 provides for reduced reporting requirements to apply in particular cases.

Division 7 provides for members’ access to the financial records of reporting units.

This Part does not apply, in relation to an association that becomes registered as an organisation under this Act, in relation to any financial year before the first financial year of the organisation that begins after the date of registration.

Where the rules of an organisation change the period constituting the financial year of the organisation, the period between:

the commencement of the first financial year after the change; and

the end of the preceding financial year;

is to be taken, for the purposes of this Part, to be a financial year.

The General Manager may, by written notice, determine that particular Australian Accounting Standards do not apply in relation to an organisation or to a class of organisations.

In deciding whether to determine that a particular Australian Accounting Standard does not apply in relation to an organisation or organisations, the General Manager is to have regard to the cost to the organisation or organisations of complying with the standard and the information needs of the members of the organisation or organisations.

The requirements of this Part apply in relation to reporting units. A reporting unit may be the whole of an organisation or a part of an organisation.

Organisations not divided into branches

(2) Where an organisation is not divided into branches, the reporting unit is the whole of the organisation.

Organisations divided into branches

(3) Where an organisation is divided into branches, each branch will be a reporting unit unless a certificate issued by the General Manager stating that the organisation is, for the purpose of compliance with this Part, divided into reporting units on an alternative basis (see section 245) is in force.

The alternative reporting units are:

the whole of the organisation; or

a combination of 2 or more branches of the organisation.

Each branch of an organisation must be in one, and only one, reporting unit.

For the purposes of this Part, so much of an organisation that is divided into branches as would not, apart from this subsection, be included in any branch, is taken to be a branch of the organisation.

A designated officer is an officer of:

in the case of a reporting unit that is the whole of an organisation—the organisation; or

in any other case—a branch, or one of the branches, that constitutes the reporting unit;

who, under the rules of the reporting unit, is responsible (whether alone or with others) for undertaking the functions necessary to enable the reporting unit to comply with this Part.

For the purposes of the application of this Part in relation to a reporting unit that is the whole of an organisation:

the members of the organisation are taken to be members of the reporting unit; and

employees of the organisation are taken to be employees of the reporting unit; and

the rules of the organisation are taken to be the rules of the reporting unit; and

the financial affairs and records of the organisation are taken to be the financial affairs and records of the reporting unit; and

conduct and activities of the organisation are taken to be conduct and activities of the reporting unit; and

a journal published by the organisation is taken to be a journal published by the reporting unit.

For the purposes of the application of this Part in relation to a reporting unit that is not the whole of an organisation:

the members of the organisation constituting the branch or branches that make up the reporting unit are taken to be members of the reporting unit; and

employees of the organisation employed in relation to the branch or branches that make up the reporting unit (whether or not they are also employed in relation to any other branch) are taken to be employees of the reporting unit; and

if the reporting unit consists of one branch—the rules of the branch are taken to be the rules of the reporting unit; and

if the reporting unit consists of more than one branch—the rules of the branches (including any rules certified under section 246, or determined under section 247, for the purpose of giving effect to the establishment of the reporting unit) are taken to be the rules of the reporting unit; and

the financial affairs and records of the branch or branches that make up the reporting unit are taken to be the financial affairs and records of the reporting unit; and

conduct and activities of the branch or branches that make up the reporting unit are taken to be conduct and activities of the reporting unit; and

if the reporting unit consists of one branch—a journal published by the branch is taken to be a journal published by the reporting unit; and

a journal published by the organisation is taken to be a journal published by the reporting unit.

The General Manager may issue to an organisation that is divided into branches a certificate stating that the organisation is, for the purpose of compliance with this Part, to be divided into reporting units on an alternative basis (as mentioned in subsection 242(3)).

A certificate may be issued on application by an organisation or at the initiative of the General Manager.

An application by an organisation for a certificate under section 245 must:

be in accordance with the regulations; and

include an application for the General Manager to certify such alterations to the rules of the organisation as are required to give effect to the establishment of the proposed reporting units.

Note: Examples of the alterations that may be required are:

alterations to designate officers from the branches to be the committee of management for the reporting unit for the purpose of complying with this Part; and

alterations to designate officers from the branches to undertake such duties as are necessary for the purpose of enabling the reporting unit to comply with this Part.

Where an organisation applies for a certificate, the General Manager must issue the certificate and certify the rule alterations if the General Manager is satisfied that:

the level of financial information that would be available to members under the proposed division into reporting units would be adequate and would be relevant to them; and

the alterations to the rules:

comply with, and are not contrary to, this Act, the Fair Work Act, modern awards or enterprise agreements; and

are not otherwise contrary to law; and

have been made under the rules of the organisation.

The General Manager may only issue a certificate under section 245 on his or her initiative if the General Manager:

is satisfied that, to improve compliance with the accounting, auditing and reporting requirements of this Part, it is most appropriate for the organisation to be divided into reporting units on the basis set out in the certificate; and

is satisfied that the level of financial information that would be available to members under the proposed division into reporting units would be adequate and would be relevant to them; and

has complied with the prescribed procedure.

Where, in the General Manager’s opinion, the rules of an organisation need to be altered to give effect to the establishment of the proposed reporting units under subsection (1), the General Manager may, by instrument, after giving the organisation an opportunity, as prescribed, to be heard on the matter, determine such alterations of the rules as are, in the General Manager’s opinion, necessary to give effect to the establishment of the proposed reporting units.

A certificate issued under section 245 is in force, and has effect according to its terms, in relation to:

the first financial year starting after the certificate is issued; and

each subsequent financial year unless, before the start of the financial year, the certificate is revoked under section 249.

The General Manager may at any time, by written notice, revoke a certificate issued to an organisation under section 245.

If a certificate is revoked, each branch will be a reporting unit.

A certificate may be revoked on application by an organisation or at the initiative of the General Manager.

An application by an organisation for the revocation of a certificate must:

be in accordance with the regulations; and

include an application for the General Manager to certify such alterations to the rules of the organisation as are required to give effect to each branch being a reporting unit.

Where an organisation applies for a revocation, the General Manager must revoke the certificate and certify the rule alterations if the General Manager is satisfied that:

the level of financial information that would be available to members with each branch being a reporting unit would be adequate and would be relevant to them; and

the alterations to the rules:

comply with, and are not contrary to, this Act, the Fair Work Act, modern awards or enterprise agreements; and

are not otherwise contrary to law; and

have been made under the rules of the organisation.

The General Manager may only revoke a certificate on his or her initiative if the General Manager:

is satisfied that, to improve compliance with the accounting, auditing and reporting requirements of this Part, it is most appropriate for each branch to be a reporting unit; and

has complied with the prescribed procedure.

Where:

the General Manager intends to revoke a certificate on his or her own initiative; and

in the General Manager’s opinion, the rules of an organisation need to be altered to give effect to each branch being a reporting unit;

the General Manager may, by instrument, after giving the organisation an opportunity, as prescribed, to be heard on the matter, determine such alterations of the rules as are, in the General Manager’s opinion, necessary to give effect to each branch being a reporting unit.

An alteration to rules under section 246, 247 or 249 takes effect on the day that it is certified or determined.

To avoid doubt, changes in rules under those sections may include changes to the duties of an office (even if during a particular term of office).

A certificate issued to an organisation under section 245 is taken to be revoked if a later certificate is issued to the organisation under section 245.

A reporting unit must:

keep such financial records as correctly record and explain the transactions and financial position of the reporting unit, including such records as are prescribed; and

keep its financial records in such a manner as will enable a general purpose financial report to be prepared from them under section 253; and

keep its financial records in such a manner as will enable the accounts of the reporting unit to be conveniently and properly audited under this Part.

Where an organisation consists of 2 or more reporting units, the financial records for each of the reporting units must, as far as practicable, be kept in a consistent manner.

Note 1: This would involve, for example, the adoption of consistent accounting policies and a common chart of accounts for all reporting units in the organisation.

Note 2: This requirement is subject to subsection (4) which allows reporting units to keep some records on a cash basis.

Financial records of an organisation may, so far as they relate to the income and expenditure of the organisation, be kept on a cash basis or accrual basis, at the option of the organisation.

If an organisation keeps the financial records referred to in subsection (1) on an accrual basis, it may keep the financial records for its membership subscriptions separately on a cash basis.

An organisation must retain the financial records kept under subsection (1) for a period of 7 years after the completion of the transactions to which they relate.

As soon as practicable after the end of each financial year, a reporting unit must cause a general purpose financial report to be prepared, in accordance with the Australian Accounting Standards, from the financial records kept under subsection 252(1) in relation to the financial year.

The general purpose financial report must consist of:

financial statements containing:

a profit and loss statement, or other operating statement; and

a balance sheet; and

a statement of cash flows; and

any other statements required by the Australian Accounting Standards; and

notes to the financial statements containing:

notes required by the Australian Accounting Standards; and

information required by the reporting guidelines (see section 255); and

any other reports or statements required by the reporting guidelines (see section 255).

The financial statements and notes for a financial year must give a true and fair view of the financial position and performance of the reporting unit. This subsection does not affect the obligation for a financial report to comply with the Australian Accounting Standards.

Note 1: The Australian Accounting Standards may be modified for the purposes of this Act by the regulations.

Note 2: If the financial statements and notes prepared in compliance with the Australian Accounting Standards would not give a true and fair view, additional information must be included in the notes to the financial statements under paragraph (2)(b).

A reporting unit must not contravene this section.

Civil penalty: 100 penalty units.

As soon as practicable after the end of each financial year, the committee of management of a reporting unit must cause an operating report to be prepared in relation to the financial year.

The operating report must:

contain a review of the reporting unit’s principal activities during the year, the results of those activities and any significant changes in the nature of those activities during the year; and

give details of any significant changes in the reporting unit’s financial affairs during the year; and

give details of the right of members to resign from the reporting unit under section 174; and

give details (including details of the position held) of any officer or member of the reporting unit who is:

a trustee of a superannuation entity or an exempt public sector superannuation scheme; or

a director of a company that is a trustee of a superannuation entity or an exempt public sector superannuation scheme; and

where a criterion for the officer or member being the trustee or director is that the officer or member is an officer or member of a registered organisation; and

contain any other information that the reporting unit considers is relevant; and

contain any prescribed information.

To avoid doubt, the operating report may be prepared by the committee of management or a designated officer.

A reporting unit must not contravene this section.

Civil penalty: 100 penalty units.

Subdivision B—Reporting guidelines

The General Manager must, by legislative instrument, issue reporting guidelines for the purposes of sections 253 and 270.

The reporting guidelines for the purposes of section 253 must provide:

the manner in which reporting units must disclose the total amount paid by the reporting unit during a financial year to employers as consideration for the employers making payroll deductions of membership subscriptions; and

the manner in which reporting units must disclose the total amount of legal costs and other expenses related to litigation or other legal matters paid by the reporting unit during a financial year; and

details of any information required for the purposes of subparagraph 253(2)(b)(ii) (information in notes to general purpose financial reports); and

the form and content of any reports or statements that are required for the purposes of paragraph 253(2)(c) (other reports or statements forming part of the general purpose financial reports).

The reporting guidelines for the purposes of section 253 and 270 must require a report that shows the total expenditure incurred by reporting units during the financial year in relation to each of the following:

remuneration, and other employment-related costs and expenses, in respect of employees;

advertising;

operating costs;

donations to political parties;

legal costs.

Note: The total expenditure may be shown in diagrammatic form, such as a pie chart.

The reporting guidelines for the purposes of section 270 must provide:

the manner in which reporting units must disclose the total amount paid by the reporting unit during a financial year to employers as consideration for the employers making payroll deductions of membership subscriptions; and

details of the form and content of the general purpose financial report to be prepared under subsection 270(4).

Reporting guidelines may also contain such other requirements in relation to the disclosure of information by reporting units as the General Manager considers appropriate.

Section 604 of the Fair Work Act does not apply in relation to reporting guidelines or the issuing of reporting guidelines.

A person may apply in writing to the General Manager for registration as an auditor.

An application under subsection (1) must:

be in a form approved by the General Manager; and

if the person is a registered company auditor—include evidence of that status; and

if the person is not a registered company auditor—contain the information required by the regulations.

This section applies if a person has made an application under subsection 255A(1) for registration as an auditor.

If the person is a registered company auditor, the General Manager must, subject to section 255E, grant the application and register the person as an auditor.

If the person is not a registered company auditor, the General Manager must, subject to section 255E, grant the application and register the person as an auditor if the General Manager is satisfied that:

the person meets the requirements of subsection 255C(1) or (2) (educational qualifications, or equivalent qualifications and experience); and

the person has either:

(i) satisfied all the components of an auditing competency standard approved by the Australian Securities and Investments Commission under Corporations Act 2001; orsection 1280A of the

had such practical experience in auditing as is prescribed by the regulations for the purposes of this paragraph; and

the General Manager is satisfied that the person is capable of performing the duties of an auditor and is otherwise a fit and proper person to be registered as an auditor.

A person meets the requirements of this subsection if the person:

(a) holds a degree, diploma or certificate from a university, or other institution in Australia, that is prescribed by regulations made for the purposes of paragraph 1280(2A)(a) of the Corporations Act 2001; and

has, in the course of obtaining that degree, diploma or certificate, passed examinations in such subjects, under whatever name, as the appropriate authority of the university or other institution certifies to the General Manager to represent a course of study:

in accountancy (including auditing) of not less than 3 years duration; and

in commercial law (including company law) of not less than 2 years duration; and

(c) has satisfactorily completed a course in auditing prescribed by regulations made for the purposes of paragraph 1280(2A)(c) of the Corporations Act 2001.

A person meets the requirements of this subsection if the person has other qualifications and experience that, in the General Manager’s opinion, are equivalent to the requirements mentioned in subsection (1).

The General Manager must not refuse to grant an application for registration of a person as an auditor unless the General Manager has given the person an opportunity to appear at a hearing before the General Manager and to make submissions and give evidence to the General Manager in relation to the matter.

If the General Manager refuses an application by a person for registration as an auditor, the General Manager must, not later than 14 days after the decision, give to the person a notice in writing setting out the decision and the reasons for it.

This section applies if a person has made an application for registration as an auditor.

The General Manager must refuse to grant the application if:

under subsection 215(1), the person is not eligible to be a candidate for an election, or to be elected or appointed, to an office in an organisation; or

under section 307A, the person is disqualified from holding office in an organisation.

If the person is not a registered company auditor, the General Manager must refuse to grant the application if the General Manager is not satisfied as mentioned in subsection 255B(3) in relation to the person.

The General Manager may refuse to grant the application if the person is not resident in Australia.

If the General Manager grants an application made by a person for registration as an auditor, the General Manager must give the person a certificate:

stating that the person has been registered as an auditor; and

specifying the day the application was granted.

The registration of a person as an auditor:

takes effect at the beginning of the day specified in the certificate as the day the application for registration was granted; and

remains in force until:

the registration is cancelled by the General Manager; or

the person dies.

The General Manager may cancel, or suspend for a specified period, the registration of a person as an auditor if the General Manager is satisfied that the person:

has failed to carry out his or her duties under this Act; or

has not performed any audit work, or any significant audit work, during a continuous period of not less than 5 years, and as a result has ceased to have the practical experience necessary for carrying out audits for the purposes of this Act; or

is otherwise not a fit and proper person to remain registered as an auditor.

In determining for the purposes of paragraph (1)(b) whether audit work performed by a person is significant, the General Manager must have regard to:

the nature of the audit; and

the extent to which the person was involved in the audit; and

the level of responsibility the person assumed in relation to the audit.

The General Manager may cancel, or suspend for a specified period, the registration of a person as an auditor if the person requests that his or her registration be cancelled or suspended for that period.

If the General Manager cancels, or suspends for a specified period, the registration of a person as an auditor under subsection (1), the General Manager must notify the Australian Securities and Investments Commission of the cancellation or suspension and the reasons for it.

The regulations may make further provision for and in relation to the suspension of the registration of a person as an auditor.

If a person was registered as an auditor under subsection 255B(2) on the basis that the person was a registered company auditor at the time of registration, the General Manager may:

cancel the registration if the person’s registration as a registered company auditor is cancelled; or

suspend the registration for some or all of any period throughout which the person’s registration as a registered company auditor is suspended.

If the General Manager decides to cancel or suspend the registration of a person as an auditor:

the General Manager must, not later than 14 days after the decision, give the person a written notice setting out the decision and the reasons for it; and

the decision comes into effect at the end of the day on which that notice is given to the person.

A failure of the General Manager to comply with subsection (1) does not affect the validity of the decision.

A person who is registered as an auditor under this Subdivision must advise the General Manager of any change in circumstances that could materially affect the person’s registration within 14 days of the change in circumstances.

Civil penalty: 200 penalty units.

The General Manager may, in writing, request further information from any person for the purposes of making a decision under this Subdivision.

The General Manager is not required to make a decision under this Subdivision until any information requested under subsection (1) in relation to the decision has been provided.

Registration under this Subdivision is on the basis that:

the registration may cease or be suspended as provided for by this Subdivision; and

the registration may cease or be suspended by or under later legislation; and

no compensation is payable if the registration ceases or is suspended as mentioned in paragraph (a) or (b).

The regulations may make provision for and in relation to the registration of auditors.

Without limiting subsection (1), the regulations may make provision for and in relation to the following:

information relating to the matters to which the General Manager must have regard in deciding whether to register a person as an auditor;

the keeping of a register;

fees in respect of applications for registration;

matters relating to the suspension and cancellation of registration;

the delegation, by a person on whom functions or powers are conferred by regulations made for the purposes of this Subdivision, of any such functions or powers.

Subdivision B—Audits

A reporting unit must ensure that there is an auditor of the reporting unit at any time when an auditor is required for the purposes of the operation of this Part in relation to the reporting unit.

Civil penalty: 200 penalty units.

The position of auditor of a reporting unit is to be held by:

an individual who is a registered auditor; or

a firm, at least one of whose members is a registered auditor; or

a company, at least one of whose directors, officers or employees is a registered auditor.

An individual must not accept appointment as auditor of a reporting unit unless:

the individual is a registered auditor; and

the individual is not an excluded auditor in relation to the reporting unit.

Civil penalty: 200 penalty units.

A member of a firm must not accept appointment of the firm as auditor of a reporting unit unless:

at least one member of the firm is a registered auditor; and

no member of the firm is an excluded auditor in relation to the reporting unit.

Civil penalty: 200 penalty units.

A company must not accept appointment as auditor of a reporting unit unless:

at least one director, officer or employee of the company is a registered auditor; and

no director, officer or employee of the company is an excluded auditor in relation to the reporting unit.

Civil penalty: 200 penalty units.

An individual who holds the position of auditor of a reporting unit must resign the appointment if the individual:

ceases to be a registered auditor; or

becomes an excluded auditor in relation to the reporting unit.

Civil penalty: 200 penalty units.

A member of a firm that holds the position of auditor of a reporting unit must take whatever steps are open to the member to ensure that the firm resigns the appointment if the member:

ceases to be a registered auditor and is or becomes aware that no other member of the firm is a registered auditor; or

becomes an excluded auditor in relation to the reporting unit; or

becomes aware that another member of the firm is an excluded auditor in relation to the reporting unit.

Civil penalty: 200 penalty units.

A company that holds the position of auditor of a reporting unit must resign the appointment if:

there is no longer any director, officer or employee of the company who is a registered auditor; or

a director, officer or employee of the company becomes an excluded auditor in relation to the reporting unit.

Civil penalty: 200 penalty units.

The auditor of a reporting unit must use his or her best endeavours to comply with each requirement of this Act that is applicable to the auditor in that capacity.

An individual must not play a significant role in the audit of a reporting unit:

for more than 5 consecutive financial years; or

for more than 5 out of 7 consecutive financial years.

Civil penalty: 200 penalty units.

Paragraph (1)(b) does not apply to an individual, in relation to a reporting unit and a series of 7 consecutive financial years, if the General Manager declares in writing that, in all the circumstances, it is not appropriate for that paragraph to apply to the individual in relation to the reporting unit and that series of 7 consecutive financial years.

A declaration made under subsection (2) is not a legislative instrument.

(4) An individual plays a significant role in the audit of a reporting unit for a financial year if:

the individual holds the position of auditor of the reporting unit for the financial year; or

if a firm or company holds the position of auditor of the reporting unit for the financial year—the individual is a registered auditor who, on behalf of the firm or company:

participates in the preparation of an audit report in relation to a financial report of the reporting unit for the financial year or any part of the financial year; or

participates in the conduct of an audit in relation to the reporting unit for the financial year or any part of the financial year.

An auditor of a reporting unit must audit the financial report of the reporting unit for each financial year and must make a report in relation to the year to the reporting unit.

An auditor, or a person authorised by an auditor for the purposes of this subsection, is:

entitled at all reasonable times to full and free access to all records and other documents of the reporting unit relating directly or indirectly to the receipt or payment of money, or to the acquisition, receipt, custody or disposal of assets, by the reporting unit; and

entitled to seek from any designated officer, or employee of the reporting unit, such information and explanations as the auditor or authorised person wants for the purposes of the audit.

If an auditor requests an officer, employee or member of an organisation to produce records or other documents under paragraph (2)(a), the request must:

be in writing; and

specify the nature of the records or other documents to be produced; and

specify how and where the records or other documents are to be produced; and

specify a period (of not less than 14 days after the notice is given) within which the records or other documents are to be produced.

If an auditor authorises a person for the purposes of subsection (2), the auditor must serve on the reporting unit a notification that sets out the name and address of the person.

An auditor must, in his or her report, state whether in the auditor’s opinion the general purpose financial report is presented fairly in accordance with any of the following that apply in relation to the reporting unit:

the Australian Accounting Standards;

any other requirements imposed by this Part.

If not of that opinion, the auditor’s report must say why.

If the auditor is of the opinion that the general purpose financial report does not so comply, the auditor’s report must, to the extent it is practicable to do so, quantify the effect that non-compliance has on the general purpose financial report. If it is not practicable to quantify the effect fully, the report must say why.

The auditor’s report must describe:

any defect or irregularity in the general purpose financial report; and

any deficiency, failure or shortcoming in respect of the matters referred to in subsection (2) or section 252.

The form and content of the auditor’s report must be in accordance with the Australian Auditing Standards.

The auditor’s report must be dated as at the date that the auditor signs the report and must be given to the reporting unit within a reasonable time of the auditor having received the general purpose financial report.

An auditor must not, in a report under this section, make a statement if the auditor knows, or is reckless as to whether, the statement is false or misleading.

Civil penalty: 200 penalty units.

If:

the auditor suspects on reasonable grounds that there has been a breach of this Act or reporting guidelines; and

the auditor is of the opinion that the matter cannot be adequately dealt with by comment in a report or by reporting the matter to the committee of management of the reporting unit;

the auditor must immediately report the matter, in writing, to the General Manager.

Civil penalty: 200 penalty units.

An officer, employee or member of an organisation or branch commits an offence if he or she:

hinders or obstructs the auditor of a reporting unit from taking action under paragraph 257(2)(a); or

does not comply with a request under paragraph 257(2)(a) by an auditor of a reporting unit to produce a record or other document in the custody or under the control of the officer, employee or member.

Penalty: 30 penalty units.

Strict liability applies to paragraph (1)(b).

Note: For strict liability, see section 6.1 of the Criminal Code.

It is a defence to an offence against paragraph (1)(b) if the officer, employee or member had a reasonable excuse for not complying.

Note: A defendant bears an evidential burden in relation to the matters mentioned in subsection (3).

However, a person is not excused from producing a record or other document under this section on the ground that the production might tend to incriminate the person or expose the person to a penalty.

However:

producing the record or other document; or

any information, document or thing obtained as a direct or indirect consequence of giving the information or producing the record or other document;

is not admissible in evidence against the person in criminal proceedings or proceedings that may expose the person to a penalty.

It is a defence to an offence against subsection (1) if the officer, employee or member did not know, and could not reasonably have known, that the auditor, or the person authorised by the auditor, to whom the charge relates was a person in relation to whom that subsection applied.

Note: A defendant bears an evidential burden in relation to the matters mentioned in subsection (6).

In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the auditor was an auditor.

In this section:

auditor includes a person authorised by the auditor for the purposes of subsection 257(2).

A reporting unit must forward to the auditor of the reporting unit any notice of, and any other communication relating to, a meeting of the reporting unit, or the committee of management of the reporting unit, at which the report of the auditor, or any general purpose financial report to which the report relates, are to be presented, being a notice or other communication that a member of the reporting unit, or the committee of management of the reporting unit, as the case may be, would be entitled to receive.

Civil penalty: 200 penalty units.

An auditor, or a person authorised by an auditor for the purposes of this section, is entitled to attend, and be heard at, any part of a meeting of a reporting unit, or the committee of management of a reporting unit, at which:

the report of the auditor, or any general purpose financial report to which the report relates, is to be presented or considered; or

there is to be conducted any business of the meeting that relates to:

the auditor in that capacity; or

a person authorised by the auditor, in the capacity of a person so authorised.

Where an auditor authorises a person for the purposes of this section, the auditor must serve on the reporting unit a notification, which sets out the name and address of the person.

An officer, employee or member of an organisation or branch commits an offence if he or she hinders or obstructs the auditor of a reporting unit from attending a part of the meeting that the auditor is entitled to attend.

Penalty: 30 penalty units.

A person commits an offence if:

an auditor of a reporting unit attends a part of a meeting that the auditor is entitled to attend; and

the person chairs the meeting; and

in the course of the part of the meeting, the auditor indicates to the person chairing the meeting that the auditor wishes to be heard; and

the person fails, as soon as practicable after having received the indication, to afford to the auditor an opportunity to be heard.

Penalty: 20 penalty units.

It is a defence to an offence against a subsection of this section if the person did not know, and could not reasonably have known, that the auditor, or the person authorised by the auditor, to whom the charge relates was a person in relation to whom the subsection applied.

Note: A defendant bears an evidential burden in relation to the matters mentioned in subsection (5).

In a prosecution for an offence against this section, it is not necessary to prove that the defendant knew that the auditor was an auditor.

In subsections (3) and (4):

auditor includes a person authorised by the auditor for the purposes of this section.

An auditor of a reporting unit is not, in the absence of malice, liable to an action for defamation at the suit of a person in relation to a statement that the auditor makes in the course of duties as auditor, whether the statement is made orally or in writing.

A person is not, in the absence of malice, liable to an action for defamation at the suit of a person in relation to the publishing of a document prepared by an auditor of a reporting unit in the course of duties as auditor and required by or under this Act to be lodged with the FWC.

This section does not limit or affect any right, privilege or immunity that a defendant has in an action for defamation.

A reporting unit must pay the reasonable fees and expenses of an auditor of the reporting unit.

An auditor of a reporting unit may only be removed during the term of appointment of the auditor:

where the auditor was appointed by the committee of management of the reporting unit—by resolution passed at a meeting of the committee by an absolute majority of the members of the committee; or

where the auditor was appointed by a general meeting of the members of the reporting unit—by resolution passed at a general meeting by a majority of the members of the reporting unit voting at the meeting.

Written notice of the intention to remove the auditor must be given to each member of the reporting unit. The notice must be provided in accordance with any time limits provided by the rules of the reporting unit, or within a reasonable time before the resolution is moved if no such time limits are provided.

Civil penalty: 200 penalty units.

The auditor must be given reasonable notice of the resolution to remove the auditor and must be given the opportunity to:

in the case of removal under paragraph (1)(a)—make oral representations to the committee of management; and

in any case—make written representations.

Civil penalty: 200 penalty units.

If it is proposed to remove the auditor under paragraph (1)(b) and the auditor makes written representations, the auditor may require the reporting unit to provide a copy of the written representations to each member of the reporting unit.

The reporting unit must comply with a requirement under subsection (4) unless the written representations exceed any limits as to length that are prescribed.

Civil penalty: 200 penalty units.

An auditor of a reporting unit may resign by giving written notice to the reporting unit.

The resignation takes effect on the day specified in the notice or, if no day is specified, the day that the notice is given to the reporting unit.

If the auditor requests the reporting unit to allow the auditor to explain his or her reasons for resigning, the reporting unit must either:

distribute to the members of the reporting unit written reasons for resignation prepared by the auditor; or

give the auditor the opportunity to explain his or her reasons to a general meeting of the reporting unit.

The committee of management of the reporting unit may choose which method is used.

Civil penalty: 200 penalty units.

A reporting unit must provide free of charge to its members either:

a full report consisting of:

a copy of the report of the auditor in relation to the inspection and audit of the financial records of the reporting unit in relation to a financial year; and

a copy of the general purpose financial report to which the report relates; and

a copy of the operating report to which the report relates; or

a concise report for the financial year that complies with subsection (3).

Civil penalty: 100 penalty units.

A concise report may only be provided if, under the rules of the reporting unit, the committee of management of the reporting unit resolves that a concise report is to be provided.

A concise report for a financial year consists of:

a concise financial report for the year drawn up in accordance with the regulations; and

the operating report for the year; and

a statement by the auditor:

that the concise financial report has been audited; and

whether, in the auditor’s opinion, the concise financial report complies with the relevant Australian Accounting Standards; and

a copy of anything included under subsection 257(5), (6) or (7) in the auditor’s report on the full report; and

a statement that the report is a concise report and that a copy of the full report and auditor’s report will be sent to the member free of charge if the member asks for them.

If a member requests a copy of the full report and auditor’s report, as mentioned in paragraph (3)(e), the reporting unit must send those reports to the person within 28 days of the request being made.

Civil penalty: 100 penalty units.

The copies referred to in subsection (1) must be provided within:

if a general meeting of members of the reporting unit to consider the reports is held within 6 months after the end of the financial year—the period starting at the end of the financial year and ending 21 days before that meeting; or

in any other case—the period of 5 months starting at the end of the financial year.

The General Manager may, upon application by the reporting unit, extend the period during which the meeting referred to in paragraph (a) may be held, or the period set out in paragraph (b), by no more than one month.

Civil penalty: 100 penalty units.

Where a reporting unit publishes a journal of the reporting unit that is available to the members of the reporting unit free of charge, the reporting unit may comply with subsection (1):

by publishing in the journal the full report; or

by preparing a concise report as described in subsection (3) and publishing the concise report in the journal.

Where a reporting unit consists of 2 or more branches of an organisation and one of those branches publishes a journal of the branch that is available to the members of the branch free of charge, the reporting unit may comply with subsection (1) in relation to those members:

by publishing in the journal the full report; or

by preparing a concise report as described in subsection (3) and publishing the concise report in the journal.

Subject to subsection (2), the reporting unit must cause the full report to be presented to a general meeting of the members of the reporting unit within the period of 6 months starting at the end of the financial year (or such longer period as is allowed by the General Manager under subsection 265(5)).

Civil penalty: 60 penalty units.

If the rules of the reporting unit permit a general meeting to be a series of meetings at different locations, the presenting of the full report to such a series of meetings is taken to be the presenting of the report to a general meeting. The general meeting is taken to have occurred at the time of the last of the meetings in the series.

If the rules of the reporting unit provide for a specified percentage (not exceeding 5%) of members to be able to call a general meeting of the reporting unit for the purpose of considering the auditor’s report, the general purpose financial report and the operating report, the full report may instead be presented to a meeting of the committee of management of the reporting unit that is held within the period mentioned in subsection (1).

Where a member of the committee of management of a reporting unit:

provides to members of the reporting unit; or

publishes in a journal; or

presents to a general meeting of the members of the reporting unit or a meeting of the committee of management of the reporting unit;

comments on a matter dealt with in a report, accounts or statements of the kind referred to in subsection 265(1), or in a concise report as described in subsection 265(3), the member must not, in the comments, make a statement if the person knows, or is reckless as to whether, the statement is false or misleading.

Civil penalty: 100 penalty units.

A reporting unit must, within 14 days (or such longer period as the General Manager allows) after the general meeting, or meeting of the committee of management, referred to in section 266, lodge with the FWC:

a copy of the full report; and

if a concise report was provided to members—a copy of the concise report; and

a certificate by a prescribed designated officer that the documents lodged are copies of the documents provided to members and presented to a general meeting, or presented to a meeting of the committee of management, as the case requires, in accordance with section 266.

Civil penalty: 100 penalty units.

(1) This section applies to a reporting unit if there is an industrial association (the associated State body) that:

is registered or recognised as such an association (however described) under a prescribed State Act; and

is, or purports to be, composed of substantially the same members as the reporting unit; and

has, or purports to have, officers who are substantially the same as designated officers in relation to the reporting unit.

A reporting unit is taken to have satisfied this Part if this section applies to the reporting unit and:

the General Manager, on the application of the reporting unit, issues a certificate stating that the financial affairs of the reporting unit are encompassed by the financial affairs of the associated State body; and

the associated State body has, in accordance with prescribed State legislation, prepared accounts, had those accounts audited, provided a copy of the audited accounts to its members and lodged the audited accounts with the relevant State authority; and

the reporting unit has lodged a copy of the audited accounts with the FWC; and

any members of the reporting unit who are not also members of the associated State body have been provided with copies of the accounts at substantially the same time as the members of the reporting unit who are members of the associated State body; and

a report under section 254 has been prepared in respect of the activities of the reporting unit and has been provided to members of the reporting unit with the copies of the accounts.

If, on the application of a reporting unit that is the whole of an organisation made after the end of a financial year, the General Manager is satisfied that the reporting unit’s income for the year did not exceed:

in the case of a financial year that, because of section 240, is a period other than 12 months—such amount as the General Manager considers appropriate in the circumstances; or

in any other case—$100,000 or such higher amount as is prescribed;

the General Manager must issue to the reporting unit a certificate to that effect.

Where a certificate is issued under subsection (1) in relation to a reporting unit in relation to a financial year:

the following provisions of this section apply in relation to the reporting unit in relation to the year; and

except as provided in paragraph (c), this Part continues to apply in relation to the reporting unit in relation to the year; and

sections 253, 265, 266 and 268 do not apply in relation to the reporting unit in relation to the year.

This Part (other than this section) applies to the reporting unit in relation to the year as if:

a reference to a general purpose financial report prepared or to be prepared under section 253 were a reference to a general purpose financial report prepared under subsection (4) of this section; and

the reference in subsection 272(5) to a general purpose financial report prepared under section 253 were a reference to a general purpose financial report prepared under subsection (4) of this section; and

the reference in sections 332 and 333 to documents lodged with the FWC under section 268 were a reference to documents lodged with the FWC in accordance with subsection (7) of this section.

Within the prescribed period after the end of the financial year, the reporting unit must cause to be prepared, in accordance with the reporting guidelines, from the financial records kept under subsection 252(1) in relation to the year, the general purpose financial report required by those reporting guidelines.

Civil penalty: 100 penalty units.

After the making to the reporting unit of the report of the auditor under section 257 in relation to the auditor’s inspection and audit of the financial records kept by the reporting unit in relation to the year, and before the end of the financial year immediately following the year, the reporting unit must cause a copy of the report, together with copies of the general purpose financial report to which the auditor’s report relates, to be presented to a meeting of the members of the reporting unit.

Civil penalty: 100 penalty units.

Where a member of a reporting unit requests the reporting unit to provide to the member a copy of the auditor’s report and the general purpose financial report, the reporting unit must provide a copy of each of the documents to the member, free of charge, within 14 days after receiving the request.

Civil penalty: 100 penalty units.

The reporting unit must, within 90 days (or such longer period as the General Manager allows) after the making to the reporting unit of the report under section 257, lodge with the FWC copies of the auditor’s report and the general purpose financial report together with a certificate by a prescribed designated officer that the information contained in the general purpose financial report is correct.

Civil penalty: 100 penalty units.

If, on the application of a reporting unit, the General Manager is satisfied, after considering such circumstances (if any) as are prescribed, that the reporting unit did not have any financial affairs in a financial year, the General Manager may issue to the reporting unit a certificate to that effect in respect of the financial year.

The certificate exempts the reporting unit from the requirements of this Part in respect of the financial year.

The application must be made to the General Manager within 90 days, or such longer period as the General Manager allows, after the end of the financial year.

A member of a reporting unit, or the General Manager, may apply to the reporting unit for specified prescribed information in relation to the reporting unit to be made available to the person making the application.

The application must be in writing and must specify the period within which, and the manner in which, the information is to be made available. The period must not be less than 14 days after the application is given to the reporting unit.

A reporting unit must comply with an application made under subsection (1).

Civil penalty: 60 penalty units.

The General Manager may only make an application under subsection (1) at the request of a member of the reporting unit concerned, and the General Manager must provide to a member information received because of an application made at the request of the member.

A general purpose financial report prepared under section 253, a concise report prepared under section 265 and a report prepared under subsection 270(4) must include a notice drawing attention to subsections (1), (2) and (3) of this section and setting out those subsections.

Civil penalty: 60 penalty units.

Without limiting the information that may be prescribed under subsection (1), the information prescribed must include details (including the amount) of any fees paid by the reporting unit for payroll deduction services provided by a person who is an employer of:

the member making the application for information; or

the member at whose request the application was made.

On application by a member of a reporting unit, the FWC may make an order:

authorising the applicant to inspect the financial records of the reporting unit specified in the order; or

authorising another person (whether a member or not) to inspect the financial records of the reporting unit specified in the order on the applicant’s behalf.

This subsection is subject to subsections (2) and (3).

The FWC may only make the order if it is satisfied:

that the applicant is acting in good faith; and

there are reasonable grounds for suspecting a breach of:

a provision of this Part; or

the reporting guidelines; or

a regulation made for the purposes of this Part; or

a rule of a reporting unit relating to its finances or financial administration; and

it is reasonable to expect that an examination of the financial records will assist in determining if there is such a breach.

The FWC may only make an order authorising the inspection of financial records that relate to the suspected breach mentioned in paragraph (2)(b).

A person authorised to inspect the financial records may make copies of the financial records unless the FWC orders otherwise.

A person must not make an application under section 273 that is vexatious or without reasonable cause.

Civil penalty: 60 penalty units.

If the FWC considers an application under section 273 to be vexatious or without reasonable cause, the FWC must dismiss the application as soon as possible.

If the FWC makes an order under section 273, the FWC may make any other orders it considers appropriate, including any or all of the following:

an order limiting the use that a person who inspects the financial records may make of information obtained during the inspection;

an order limiting the right of a person who inspects the financial records to make copies in accordance with subsection 273(4);

an order that the reporting unit is not required to provide the names and addresses of its members.

An applicant who inspects the financial records under section 273, or a person who inspects the financial records on behalf of an applicant, must not disclose information obtained during the inspection unless the disclosure is to:

a member of the staff of the FWC; or

the applicant.

Civil penalty: 60 penalty units.

A person who receives information under paragraph (1)(a) or (b) must not disclose the information other than to another person covered by one of those paragraphs.

Civil penalty: 60 penalty units.

The committee of management of a reporting unit, or the reporting unit by a resolution passed at a general meeting, may authorise a member to inspect financial records of the reporting unit.

If, as a result of inspecting the financial records of a reporting unit, a person reasonably believes that a breach of:

a provision of this Part; or

the reporting guidelines; or

a regulation made for the purposes of this Part; or

a rule of a reporting unit relating to its finances or financial administration;

may have occurred, the person must give the FWC written notice to that effect and give to the FWC any relevant information obtained during the inspection.

If the FWC receives notice under subsection (1) and the FWC is satisfied that there are reasonable grounds for believing that there has been a breach of:

a provision of this Part; or

the reporting guidelines; or

a regulation made for the purposes of this Part; or

a rule of a reporting unit relating to its finances or financial administration;

the FWC must refer the matter to the General Manager.

Note: Where a matter is referred, it will be investigated under section 334.

For the purposes of this Division, the FWC must be constituted by the President, a Vice President or a Deputy President.

This Part sets out some of the most significant duties of officers and employees of organisations and branches of organisations in relation to the financial management of an organisation or a branch of an organisation.

This Part only applies in relation to officers and employees of an organisation or a branch of an organisation to the extent that it relates to the exercise of powers or duties of those officers and employees related to the financial management of the organisation or branch.

For the purposes of this Part, a person is involved in a contravention if, and only if, the person has:

aided, abetted, counselled or procured the contravention; or

induced, whether by threats or promises or otherwise, the contravention; or

been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

conspired with others to effect the contravention.

An officer of an organisation or a branch must exercise his or her powers and discharge his or her duties with the degree of care and diligence that a reasonable person would exercise if he or she:

were an officer of an organisation or a branch in the organisation’s circumstances; and

occupied the office held by, and had the same responsibilities within the organisation or a branch as, the officer.

Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.

An officer of an organisation or a branch who makes a judgment to take or not take action in respect of a matter relevant to the operations of the organisation or branch is taken to meet the requirements of subsection (1), and their equivalent duties at common law and in equity, in respect of the judgment if he or she:

makes the judgment in good faith for a proper purpose; and

does not have a material personal interest in the subject matter of the judgment; and

informs himself or herself about the subject matter of the judgment to the extent he or she reasonably believes to be appropriate; and

rationally believes that the judgment is in the best interests of the organisation.

The officer’s belief that the judgment is in the best interests of the organisation is a rational one unless the belief is one that no reasonable person in his or her position would hold.

Note: This subsection only operates in relation to duties under this section and their equivalents at common law or in equity (including the duty of care that arises under the common law principles governing liability for negligence)—it does not operate in relation to duties under any other provision of this Act or under any other laws.

An officer of an organisation or a branch must exercise his or her powers and discharge his or her duties:

in good faith in what he or she believes to be the best interests of the organisation; and

for a proper purpose.

Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.

A person who is involved in a contravention of subsection (1) contravenes this subsection.

Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.

An officer or employee of an organisation or a branch must not improperly use his or her position to:

gain an advantage for himself or herself or someone else; or

cause detriment to the organisation or to another person.

Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.

A person who is involved in a contravention of subsection (1) contravenes this subsection.

Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.

A person who obtains information because he or she is, or has been, an officer or employee of an organisation or a branch must not improperly use the information to:

gain an advantage for himself or herself or someone else; or

cause detriment to the organisation or to another person.

Note: This duty continues after the person stops being an officer or employee of the organisation or branch.

Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.

A person who is involved in a contravention of subsection (1) contravenes this subsection.

Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.

If the members of an organisation ratify or approve a contravention of section 285, 286, 287 or 288, the ratification or approval:

does not prevent the commencement of proceedings for a contravention of the section; and

does not have the effect that proceedings brought for a contravention of the section must be determined in favour of the defendant.

If members of an organisation ratify or approve a contravention of section 285, 286, 287 or 288, the Federal Court may take the ratification or approval into account in deciding what order or orders to make under section 306, 307 or 308 in proceedings brought for a contravention of the section. In doing this, it must have regard to:

how well-informed about the conduct the members were when deciding whether to ratify or approve the contravention; and

whether the members who ratified or approved the contravention were acting for proper purposes.

An officer or employee does not contravene section 286, 287 or 288 by doing an act that another provision of this Act or the Fair Work Act requires the officer or employee to do.

Good faith—officers of organisations and branches

An officer of an organisation or a branch commits an offence if he or she:

is reckless; or

is intentionally dishonest;

and fails to exercise his or her powers or discharge his or her duties:

in good faith in the best interests of the organisation; or

for a proper purpose.

Penalty: 2,000 penalty units or imprisonment for 5 years, or both.

Use of position—officers and employees of organisations and branches

An officer or employee of an organisation or a branch commits an offence if the officer or employee uses his or her position dishonestly:

with the intention of directly or indirectly gaining an advantage for himself or herself, or someone else, or causing detriment to the organisation; or

reckless as to whether the use may result in himself or herself or someone else directly or indirectly gaining an advantage, or causing detriment to the organisation.

Penalty: 2,000 penalty units or imprisonment for 5 years, or both.

Use of information—officers and employees of organisations and branches

A person who obtains information because he or she is, or has been, an officer or employee of an organisation or a branch commits an offence if he or she uses the information dishonestly:

with the intention of directly or indirectly gaining an advantage for himself or herself, or someone else, or causing detriment to the organisation; or

reckless as to whether the use may result in himself or herself or someone else directly or indirectly gaining an advantage, or causing detriment to the organisation.

Penalty: 2,000 penalty units or imprisonment for 5 years, or both.

Sections 285 to 289 and 290A:

have effect in addition to, and not in derogation of, any rule of law relating to the duty or liability of a person because of his or her office or employment in relation to an organisation or a branch; and

do not prevent the commencement of proceedings for a breach of duty or in respect of a liability referred to in paragraph (a).

This section does not apply to subsection 285(2) to the extent to which it operates on the duties at common law and in equity that are equivalent to the requirements of subsection 285(1).

If:

an officer relies on information, or professional or expert advice, given or prepared by:

an employee of the organisation or the branch whom the officer believes on reasonable grounds to be reliable and competent in relation to the matters concerned; or

a professional adviser or expert in relation to matters that the officer believes on reasonable grounds to be within the person’s professional or expert competence; or

another officer in relation to matters within the officer’s authority; or

a collective body on which the officer did not serve in relation to matters within the collective body’s authority; and

the reliance was made:

in good faith; and

after making proper inquiry if the circumstances indicated the need for inquiry; and

the reasonableness of the officer’s reliance on the information or advice arises in proceedings brought to determine whether an officer has performed a duty under this Part or an equivalent duty at common law or in equity;

the officer’s reliance on the information or advice is taken to be reasonable unless the contrary is proved.

If the officers of an organisation or a branch delegate a power under its rules, each of those officers is responsible for the exercise of the power by the person to whom the power was delegated as if the power had been exercised by the officer.

An officer is not responsible under subsection (1) if:

the officer believed on reasonable grounds at all times that the person to whom the power was delegated would exercise the power in conformity with the duties imposed on officers of the organisation or the branch by this Act or the Fair Work Act; and

the officer believed:

on reasonable grounds; and

in good faith; and

after making proper inquiry if the circumstances indicated the need for inquiry;

that the person to whom the power was delegated was reliable and competent in relation to the power delegated.

This Part sets out disclosure obligations about remuneration paid to officers and material personal interests of disclosing officers (see subsection 293C(1)).

It also restricts disclosing officers from taking part in making decisions in relation to matters in which they have a material personal interest, requires the preparation of officer and related party disclosure statements and requires officers to undertake approved training in relation to their financial duties.

Disclosure by officers

Each officer of an organisation must, in accordance with section 293BA or 293BB, disclose to the organisation details of any remuneration paid to the officer:

because the officer is a member of a Board, if:

the officer is a member of the Board only because the officer is an officer of the organisation; or

the officer was nominated for the position of member of the Board by the organisation, a branch of the organisation or a peak council; or

by a related party of the organisation, in connection with the performance of the officer’s duties as an officer.

Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.

Each officer of a branch of an organisation must, in accordance section 293BA or 293BB, disclose to the branch details of any remuneration paid to the officer:

because the officer is a member of a Board, if:

the officer is a member of the Board only because the officer is an officer of the branch; or

the officer was nominated for the position of member of the Board by the organisation, a branch of the organisation or a peak council; or

by a related party of the branch, in connection with the performance of the officer’s duties as an officer.

Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.

The disclosure is in accordance with this section if it is made in writing to the committee of management of the organisation or branch, as the case may be, as soon as practicable after the remuneration is paid to the officer.

The disclosure is in accordance with this section if:

remuneration is to be paid to the officer, under a contract or other arrangement, on a regular basis during the financial year; and

the officer gives to the members of the committee of management of the organisation or branch, as the case may be, standing notice of the amounts of remuneration that the officer expects to be paid during the financial year; and

the requirements set out in subsections (2) to (5) are met.

The standing notice must be given at any time before, or as soon as practicable after, the first payment is made to the officer.

If, during the financial year, an amount of remuneration paid to the officer under the contract or arrangement exceeds the amount notified in the standing notice, the officer must, as soon as practicable, notify the committee of management of the organisation or branch, as the case may be, of the excess.

(4) If, at the end of the financial year, the total amount (the final total) of remuneration paid to the officer under the contract or arrangement is more, or less, than the total amount notified under paragraph (2)(b), the officer must, as soon as practicable after the end of the financial year, notify the committee of management of the organisation or branch, as the case may be, of the final total.

Notice under this section must be given in writing.

An organisation must, for a financial year, disclose to the members of the organisation and its branches details of the following in accordance with subsection (3):

the identity of each officer of the organisation who, when all officers of the organisation are ranked by relevant remuneration for the financial year (from highest to lowest), is ranked no lower than fifth;

for each of those officers:

the actual amount of the officer’s relevant remuneration for the financial year; and

the value and form of the officer’s relevant non-cash benefits for the financial year.

A branch of an organisation must, for a financial year, disclose to the members of the branch, details of the following in accordance with subsection (3):

the identity of each officer of the branch who, when all officers of the branch are ranked by relevant remuneration for the financial year (from highest to lowest), is ranked no lower than fifth;

for each of those officers:

the actual amount of the officer’s relevant remuneration for the financial year; and

the value and form of the officer’s relevant non-cash benefits for the financial year.

Manner of disclosure

A disclosure under subsection (1) or (2) must be made as part of the officer and related party disclosure statement required under Division 3.

Note: Failure to prepare an officer and related party disclosure statement is a contravention of a civil penalty provision (see section 293J).

Relevant remuneration

(4) For the purposes of this section, the relevant remuneration of an officer of an organisation or a branch of an organisation for a financial year is the sum of the following:

any remuneration disclosed to the organisation or the branch by the officer under subsection 293B(1) or (2), during the financial year;

any remuneration paid, during the financial year, to the officer by the organisation or the branch.

Relevant non-cash benefits

(5) For the purposes of this section, the relevant non-cash benefits of an officer of an organisation or a branch of an organisation for a financial year are the non-cash benefits provided to the officer, at any time during the financial year, in connection with the performance of the officer’s duties as an officer, by the organisation or the branch or by a related party of the organisation or the branch.

Disclosure by officers

(1) This section applies to each officer (a disclosing officer) of an organisation or a branch of an organisation whose duties include duties that relate to the financial management of the organisation or branch.

A disclosing officer of an organisation must, in accordance with subsection (5), disclose to the committee of management of the organisation details of any material personal interest that the officer has or acquires in a matter that relates to the affairs of the organisation.

Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.

A disclosing officer of a branch must, in accordance with subsection (5), disclose to the committee of management of the branch details of any material personal interest that the officer has or acquires in a matter that relates to the affairs of the branch.

Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.

A disclosing officer does not need to disclose an interest under subsection (2) or (3) if:

the interest:

arises because the disclosing officer is a member, or a representative of a member, of an organisation or a branch and the interest is held in common with the other members of the organisation or branch; or

arises in relation to the officer’s remuneration as an officer of the organisation or branch; or

relates to a contract the organisation or branch is proposing to enter into that is subject to approval by the members of the organisation or branch and will not impose any obligation on the organisation or branch if it is not approved by the members; or

is in a contract, or proposed contract, with, or for the benefit of, or on behalf of, a related party of the organisation or branch that is a body corporate and arises merely because the officer is on the Board of the related party; or

the officer has given a standing notice of the nature and extent of the interest under section 293D and the notice is still effective in relation to the interest.

A disclosure made under subsection (2) or (3) must:

be made as soon as practicable after the interest is acquired; and

provide details of:

the nature and extent of the interest; and

the relation of the interest to the affairs of the organisation or branch; and

be made:

at a meeting of the committee of management (either orally or in writing); or

to the members of the committee of management individually in writing.

The disclosure is made under subparagraph (c)(ii) when it has been given to every member of the committee of management.

Committee of management must record details of disclosure in minutes of meeting

An organisation or a branch contravenes this subsection if a committee of management of the organisation or branch (as the case may be) fails to record details of a disclosure made under subsection (2) or (3):

if the disclosure is made at a meeting of the committee of management of the organisation or branch—in the minutes of the meeting of the committee of management at which the disclosure is made; or

in any other case—in the minutes of the first meeting of the committee of management after the disclosure is made.

Civil penalty: 100 penalty units.

An organisation or a branch contravenes this subsection if a committee of management of the organisation or branch (as the case may be) fails, within 28 days of being requested in writing to do so by a member of the organisation or branch, to provide to the member details of disclosures made to the committee of management under subsection (2) or (3).

Civil penalty: 100 penalty units.

Power to give notice

An officer of an organisation who has an interest in a matter may give to the members of the committee of management of the organisation standing notice of the nature and extent of the interest in the matter in accordance with subsection (2). The notice may be given at any time and whether or not the matter relates to the affairs of the organisation at the time the notice is given.

Note: The standing notice may be given to the members of the committee of management before the interest becomes a material personal interest.

The standing notice must:

give details of the nature and extent of the interest; and

be given:

at a meeting of the committee of management (either orally or in writing); or

to the members of the committee of management individually in writing.

The standing notice is given under subparagraph (b)(ii) when it has been given to every member of the committee of management.

Standing notice must be tabled at meeting if given to members of the committee of management individually

If the standing notice is given to the members of the committee of management individually in writing, it must be tabled at the next meeting of the committee of management after it is given.

Nature and extent of interest must be recorded in minutes

The committee of management must ensure that the nature and extent of the interest disclosed in the standing notice is recorded in the minutes of the meeting of the committee of management at which the standing notice is given or tabled.

Dates of effect and expiry of standing notice

The standing notice:

takes effect as soon as it is given; and

ceases to have effect if a person who was not a member of the committee of management at the time when the notice was given is appointed as a member of the committee of management.

A standing notice that ceases to have effect under paragraph (b) commences to have effect again if it is given to the person referred to in that paragraph.

Effect of material increase in nature or extent of interest

The standing notice ceases to have effect in relation to a particular interest if the nature or extent of the interest materially increases above that disclosed in the notice.

Effect of contravention by officer

A contravention of this section by an officer does not affect the validity of any act, transaction, agreement, instrument, resolution or other thing.

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.

Sections 293C and 293D have effect in addition to, and not in derogation of:

any general law rule about conflicts of interest; and

any provision in an organisation’s or branch’s rules that restricts an officer or employee from having a material personal interest in a matter involving duties or interests that conflict with their duties or interests as an officer of the organisation or branch.

An officer of an organisation who has a material personal interest in a matter that relates to the affairs of the organisation:

must not be present during any deliberation by the organisation on the matter; and

must not take part in any decision of the organisation with respect to the matter.

Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.

An officer of a branch of an organisation who has a material personal interest in a matter that relates to the affairs of the branch:

must not be present during any deliberation by the branch on the matter; and

must not take part in any decision of the branch with respect to the matter.

Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.

Subsections (1) and (2) do not apply if:

subsection (4) allows the officer to be present and take part in a discussion with respect to the matter; or

the interest does not need to be disclosed under section 293C.

The officer may be present and take part in a decision with respect to the matter if members of the committee of management of the organisation or branch (as the case may be) who do not have a material personal interest in the matter have passed a resolution that:

identifies the officer, the nature and extent of the officer’s interest in the matter and its relation to the affairs of the organisation or branch; and

states that those members are satisfied that the interest should not disqualify the officer from being present and taking part in a decision with respect to the matter.

Effect of contravention by officer

A contravention by an officer of this section does not affect the validity of any act, transaction, agreement, instrument, resolution or other thing.

An organisation must, for a financial year and in accordance with subsection (3), disclose to the members of the organisation and its branches, details of each payment made by the organisation during the financial year:

to a related party of the organisation or of a branch of the organisation; or

to a declared person or body of the organisation.

A branch of an organisation must, for a financial year and in accordance with subsection (3), disclose to the members of the branch each payment made by the branch, during the financial year:

to a related party of the branch; or

to a declared person or body of the branch.

A disclosure under subsection (1) or (2) must be made as part of the officer and related party disclosure statement required under Division 3.

Note: Failure to prepare an officer and related party disclosure statement is a contravention of a civil penalty provision (see section 293J).

Subsections (1) and (2) do not apply to a payment made to a related party if:

the related party is an officer of the organisation or the branch; and

the payment:

consists of remuneration paid to the officer by the organisation or the branch; or

is reimbursement for expenses reasonably incurred by the officer in performing the officer’s duties as an officer.

Note: Section 293B requires certain disclosures in relation to remuneration.

Subsections (1) and (2) do not apply to a payment made to a related party if the payment consists of amounts deducted by the organisation or the branch from remuneration payable to one or more officers or employees of the organisation or the branch (as the case may be).

Arm’s length terms

Subsections (1) and (2) do not apply to a payment made to a related party if the payment is made on terms that:

would be reasonable in the circumstances if the organisation, or the branch, and the related party were dealing at arm’s length; or

are less favourable to the related party than the terms referred to in paragraph (a).

Small amounts given to related party

Subsections (1) and (2) do not apply to a payment made to a related party if the total of the following amounts is less than or equal to the amount prescribed by the regulations for the purposes of this subsection:

the amount of the payment;

the total of all other payments given to the related party, in the financial year, in relation to which subsections (1) and (2) do not apply to the payment because of this subsection.

In working out the total of the payments referred to in paragraphs (5B)(a) and (b) disregard:

amounts that have been repaid; and

amounts that fall under any other exception in this section.

Payments to members that do not discriminate unfairly

Subsections (1) and (2) do not apply to a payment made to a related party if:

the payment is given to the related party in their capacity as a member of the organisation or the branch; and

making the payment does not discriminate unfairly against the other members of the organisation or the branch.

(6) For the purposes of this section, a person or body is a declared person or body of an organisation or a branch of an organisation if:

an officer of the organisation or the branch has disclosed a material personal interest under subsection 293C(2) or (3) or 293D(1); and

the interest relates to, or is in, the person or body; and

the officer has not notified the organisation or the branch that the officer no longer has the interest.

If an organisation considers that it is too onerous for the organisation to comply with section 293G because special circumstances exist in relation to the organisation, the organisation may lodge with the General Manager an application for an order under this section.

The application must be accompanied by:

a statement of the special circumstances that exist in relation to the organisation; and

(b) particulars of a proposed alternative arrangement (the alternative disclosure arrangement) to provide for disclosures, in relation to payments made by the organisation, that are appropriate for the organisation’s special circumstances and provide appropriate transparency; and

evidence of the organisation’s past and current high standards of financial accountability and control that are appropriate for the organisation’s special circumstances and provide appropriate transparency.

If the General Manager is satisfied, on application by an organisation under subsection (1):

that special circumstances exist in relation to the organisation; and

that, taking into account the evidence provided in accordance with paragraph (2)(c), the proposed alternative disclosure arrangement provides for disclosures, in relation to payments made by the organisation, that are appropriate for the organisation’s special circumstances and provide appropriate transparency; and

that the proposed alternative disclosure arrangement:

complies with and is not contrary to this Act (other than section 293G); and

is not otherwise contrary to law;

the General Manager may, in writing, make an order under this subsection.

If the General Manager makes the order under subsection (3):

the order must set out the alternative disclosure arrangement; and

the alternative disclosure arrangement takes effect when the General Manager makes the order; and

compliance with the alternative disclosure arrangement set out in the order is, for the purposes of this Act, taken to be compliance with section 293G.

The order remains in force until the earlier of:

the day the order is revoked under subsection (6); and

the day 5 years after the day the order was made.

The General Manager may revoke the order if the General Manager:

either:

is no longer satisfied of a matter referred to in paragraph (3)(a), (b) or (c); or

is satisfied that the organisation has contravened the alternative disclosure arrangement set out in the order; and

has given the organisation an opportunity, as prescribed, to show cause why the order should not be revoked.

Subsection 604(1) of the Fair Work Act does not apply in relation to a decision of the General Manager under subsection (3).

Note: Subsection 604(1) of the Fair Work Act provides for appeals from certain decisions of the General Manager.

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.

An order under subsection (3) is not a legislative instrument.

An organisation must:

as soon as practicable after the end of each financial year, cause an officer and related party disclosure statement to be prepared for the organisation in relation to the financial year in accordance with this section; and

within the period of 6 months starting at the end of the financial year:

cause the officer and related party disclosure statement to be provided to the members of the organisation and its branches; and

lodge with the FWC a copy of the officer and related party disclosure statement provided to the members.

Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.

A branch of an organisation must:

as soon as practicable after the end of each financial year, cause an officer and related party disclosure statement to be prepared for the branch in relation to the financial year in accordance with this section; and

within the period of 6 months starting at the end of the financial year:

cause the officer and related party disclosure statement to be provided to the members of the branch; and

lodge with the FWC a copy of the officer and related party disclosure statement provided to the members.

Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.

(3) The officer and related party disclosure statement for an organisation or a branch of an organisation must include details of the disclosures provided by the organisation or the branch under sections 293BC, 293G and 293H for the financial year.

(1) Unless exempted under financial duties) that relate to the financial management of the organisation or the branch must undertake training:section 293M, each officer of an organisation or a branch of an organisation whose duties include duties (

approved by the General Manager under section 293L; and

that covers each of the officer’s financial duties.

The organisation or branch must ensure that the officer completes the training within 6 months after the person begins to hold the office.

Civil penalty: 100 penalty units.

The General Manager may, for the purposes of section 293K, approve training provided by:

an organisation; or

a peak council; or

a body or person the General Manager is satisfied has appropriate skills and expertise to provide the training;

if the General Manager is satisfied that the training covers one or more of the duties of officers of organisations and branches of organisations that relate to the financial management of organisations and branches of organisations.

If the approval is made in writing, the approval is not a legislative instrument.

An organisation or branch of an organisation may, in writing, apply to the General Manager for an officer of the organisation or the branch to be exempted from the requirement to undertake training under section 293K.

The General Manager may grant the exemption if the General Manager is satisfied that the officer has a proper understanding of the officer’s financial duties within the organisation or the branch because of the officer’s:

experience as a company director; or

experience as an officer of a registered organisation; or

other professional qualifications and experience.

The General Manager may grant the exemption subject to any conditions that the General Manager considers appropriate in the circumstances.

This Part sets out the general duties of officers and employees in relation to orders or directions of the Federal Court or the FWC.

For the purposes of this Part, a person is involved in a contravention if, and only if, the person has:

aided, abetted, counselled or procured the contravention; or

induced, whether by threats or promises or otherwise, the contravention; or

been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

conspired with others to effect the contravention.

In this Part:

a reference to an officer of an organisation includes a reference to an officer of a branch of an organisation; and

a reference to an employee of an organisation includes a reference to an employee of a branch of an organisation.

This section applies if:

the Federal Court or the FWC has made an order or a direction under this Act; and

the order or direction is in force; and

the order or direction applies to an organisation.

An officer or employee of the organisation must not do anything that would cause the organisation to contravene the order or direction, knowing, or reckless as to whether, the doing of the thing would result in the contravention.

Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.

An officer or employee of the organisation who is involved in a contravention of the order or direction, or of subsection (2), contravenes this subsection.

Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.

This section applies if:

the Federal Court or the FWC has made an order or a direction under this Act; and

the order or direction is in force; and

the order or direction applies to an organisation; and

the order or direction prohibits the organisation from doing something.

An officer or employee of the organisation must not do anything that would contravene the order or direction if the order or direction had applied to him or her, knowing, or reckless as to whether, the doing of the thing would result in such a contravention.

Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.

An officer or employee of the organisation who is involved in a contravention of subsection (2) contravenes this subsection.

Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.

This section applies if:

the Federal Court or the FWC has made an order or a direction under this Act; and

the order or direction is in force; and

the order or direction applies to an officer of an organisation.

The officer must not knowingly or recklessly contravene the order or direction.

Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.

An officer or employee of the organisation who is involved in a contravention of subsection (2) contravenes this subsection.

Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.

This section applies if:

the Federal Court or the FWC has made an order or a direction under this Act; and

the order or direction is in force; and

the order or direction applies to an officer of an organisation; and

the order or direction prohibits the officer from doing something.

An officer or employee of the organisation must not do anything that would contravene the order or direction if the order or direction had applied to him or her, knowing, or reckless as to whether, the doing of the thing would result in such a contravention.

Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.

An officer or employee of the organisation who is involved in a contravention of subsection (2) contravenes this subsection.

Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.

This section applies if:

the Federal Court or the FWC has made an order or a direction under this Act; and

the order or direction is in force; and

the order or direction applies to an employee of an organisation.

The employee must not knowingly or recklessly contravene the order or direction.

Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.

An officer or employee of the organisation who is involved in a contravention of subsection (2) contravenes this subsection.

Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.

This section applies if:

the Federal Court or the FWC has made an order or a direction under this Act; and

the order or direction is in force; and

the order or direction applies to an employee of an organisation; and

the order or direction prohibits the employee from doing something.

An officer or employee of the organisation must not do anything that would contravene the order or direction if the order or direction had applied to him or her, knowing, or reckless as to whether, the doing of the thing would result in such a contravention.

Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.

An officer or employee of the organisation who is involved in a contravention of subsection (2) contravenes this subsection.

Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.

This section applies if:

the Federal Court or the FWC has made an order or a direction under this Act; and

the order or direction is in force; and

the order or direction applies to a member of an organisation.

An officer or employee of the organisation who is involved in a contravention of the order or direction contravenes this subsection.

Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.

This Division applies in relation to:

orders and directions made by the Federal Court or the FWC before, on or after the commencement of this Division; and

acts done or omissions made on or after that commencement.

By force of this subsection, the Construction and General Division, and each of its branches, is placed under administration from the earliest time at which both of the following are in force:

a legislative instrument made under subsection 323B(1);

the appointment of an administrator under section 323C.

The administration ends on the fifth anniversary of the day it began (unless ended sooner under section 323D).

The Minister may, in writing, determine a scheme for the administration of the Construction and General Division and its branches, if the Minister is satisfied that, having regard to the Parliament’s intention in enacting this Act (see section 5), it is in the public interest for the Division and its branches to be placed under administration.

(2) An instrument made under subsection (1) is a legislative instrument, but Legislation Act 2003 does not apply to the instrument.section 42 (disallowance) of the

Without limiting subsection (1), the scheme must provide for the following:

the person who is to be appointed as the administrator of the scheme under section 323C;

suspension or removal of officers;

declarations that offices are vacant;

the timing of elections of officers;

the taking of disciplinary actions by the administrator, including expulsion of members and disqualification of officers for up to 5 years, and including in circumstances not provided for by the rules of the CFMEU or the Construction and General Division;

the termination of employment of employees of the Construction and General Division or its branches;

the making of an alteration of the rules of the Construction and General Division by the administrator in circumstances where, because of the administration, the alteration cannot be made in accordance with any provision made by this Act (other than this Part) or the rules;

giving reports to the Minister or General Manager;

delegation by the administrator of the administrator’s functions or powers;

the engagement or employment of persons by the administrator to assist in performing the administrator’s functions;

obligations for the administrator to cooperate with any inquiry into conduct of the CFMEU, or officers or employees or former officers or employees of the CFMEU or any of its branches, divisions or parts, being undertaken by any law enforcement agency or regulator (including the Fair Work Ombudsman or the FWC);

matters ancillary or incidental to matters mentioned in the previous paragraphs in this subsection.

Note: The scheme and things done under it have effect despite anything in this Act, Part 2-4 of the Fair Work Act or the rules of the CFMEU or any branch, division or part of it (see section 323F).

The scheme may provide for any other matters the Minister considers appropriate.

The Minister is not required to observe any requirements of the natural justice hearing rule in making a decision under this section.

As soon as practicable after a scheme is determined under subsection 323B(1), the General Manager must, in writing, appoint a person to be the administrator of the scheme.

The General Manager may, by writing, terminate the appointment of the administrator and appoint another person as the administrator.

If the scheme provides for the person who is to be appointed, the General Manager:

must appoint that person; and

must not terminate that person’s appointment otherwise than in accordance with any requirements specified in the scheme.

If:

the administrator requests the Minister to vary a scheme determined under subsection 323B(1) (whether to end the administration for a branch of the Construction and General Division or to make any other changes); and

the Minister is satisfied that, having regard to the Parliament’s intention in enacting this Act (see section 5), the variation is in the public interest;

the Minister must, in writing, vary the scheme as requested.

If:

the administrator requests the Minister to revoke a scheme determined under subsection 323B(1); and

the Minister is satisfied that, having regard to the Parliament’s intention in enacting this Act (see section 5), the revocation is in the public interest;

the Minister must, in writing, revoke the scheme.

The Minister may only vary or revoke the scheme in accordance with subsections (1) and (1A).

(2) An instrument made under subsection (1) or (1A) is a legislative instrument, but Legislation Act 2003 does not apply to the instrument.section 42 (disallowance) of the

However, the Minister must not:

vary the scheme to end the administration for a branch; or

revoke the scheme;

before the third anniversary of the day the administration began, unless the administrator gives the Minister written notice that the administrator is satisfied that (for variation) the branch, or (for revocation) the Construction and General Division and each of its branches, is functioning lawfully and effectively.

The Minister is not required to observe any requirements of the natural justice hearing rule in making a decision under this section.

Sections 323A, 323B, 323C and 323D cease to be in force on the fifth anniversary of the day the administration began under subsection 323A(1).

The following have effect despite anything in this Act, Part 2-4 of the Fair Work Act or the rules of the CFMEU or a branch, division or part of the CFMEU:

a scheme determined under subsection 323B(1);

any action taken under the scheme;

an instrument made under section 323C.

Actions of the administrator, including as mentioned in paragraphs 323B(3)(b) and (e), continue in effect:

regardless of the end of the administration under subsection 323A(2) or section 323D; and

regardless of section 323E; and

despite any provision of this Act or the rules of the CFMEU or a branch, division or part of the CFMEU.

The Minister may, by legislative instrument, make rules prescribing the effect of actions taken under the scheme for the purposes of other laws.

This section applies in relation to an alteration of the rules of the Construction and General Division made under a scheme determined under section 323B(1).

Section 159 does not apply in relation to the alteration.

The administrator must, within 35 days after the alteration is made, or any longer period allowed by the General Manager, lodge with the FWC a notice setting out particulars of the alteration.

The notice must contain a declaration, signed by the administrator, that the alteration was made in accordance with the scheme and that the particulars set out in the notice are true and correct to the best knowledge and belief of the administrator.

If particulars of the alteration have been lodged with the FWC, the General Manager may, with the consent of the administrator, amend the alteration for the purpose of correcting a typographical, clerical or formal error.

The alteration does not take effect unless particulars of the alteration have been lodged with the FWC as required by subsections (3) and (4) and the General Manager has certified that, in the General Manager’s opinion, the alteration:

has been made in accordance with the scheme; and

subject to the scheme and section 323F, 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.

If certified under subsection (6), the alteration takes effect on the day of certification.

The administrator of a scheme determined under subsection 323B(1) must, as soon as practicable after appointment as administrator:

establish, in writing, a complaints procedure that complies with subsections (2) and (3) (unless a previous administrator has done so); and

take reasonable steps to publicise the procedure to members of the Construction and General Division; and

make the procedure publicly available.

The procedure must allow for the making of complaints in respect of conduct:

that is or is alleged to be improper, unlawful or criminal; and

that is or is alleged to be engaged in by any person who is or has been:

an officer or employee of the CFMEU or any of its branches, divisions or parts working in the Construction and General Division or any of its branches; or

a workplace delegate (within the meaning of the Fair Work Act) for members of the Construction and General Division or any of its branches; or

a member of the Construction and General Division or any of its branches.

Note: Complaints made under the procedure may qualify for whistleblower protection under Part 4A of this Chapter (see subsection (11) of this section).

(3) The procedure must allow for the making of complaints to the following complaint recipients:

the administrator;

a person authorised in writing by the administrator to receive complaints.

A complaint recipient must not disclose the identity of a complainant to a person who is not a complaint recipient, including in a referral under subsection (5), unless the complainant consents or it is already publicly known that the complainant has made the complaint under the procedure.

A complaint recipient may refer a complaint to a law enforcement agency or regulator (including the Fair Work Ombudsman or the General Manager) for investigation.

If a complaint is referred to a regulator that is the Fair Work Ombudsman or the General Manager, the regulator must:

consider the complaint; and

advise the administrator or other complaint recipient, in writing as soon as practicable, as to whether the regulator intends to investigate the complaint; and

if the regulator investigates the complaint:

report progress and results of the investigation to the administrator or other complaint recipient at 90 day intervals until the investigation is completed; and

advise the administrator or other complaint recipient when the investigation is completed.

If the complaint is investigated by a regulator other than the Fair Work Ombudsman or the General Manager, or by a law enforcement agency, the complaint recipient must use best endeavours to obtain reports of the progress of the investigation from time to time and disclose these to the complainant.

If, because of a want of jurisdiction, no law enforcement agency or regulator investigates a complaint referred under subsection (5), the complaint recipient must use best endeavours to:

investigate the complaint; and

keep the complainant informed of progress; and

notify the complainant of the results of the investigation.

Subsections (7) and (8) do not apply if the administrator reasonably believes that disclosing information to the complainant as required by those subsections may jeopardise the investigation concerned.

Subsection (8) does not apply if the complaint recipient is satisfied that the complaint is frivolous or vexatious.

For the purposes of Part 4A of this Chapter (protection for whistleblowers):

(a) conduct mentioned in subsection (2) is taken to be disclosable conduct; and

the making of a complaint in respect of such conduct, in accordance with the procedure established by the administrator, is a disclosure that qualifies for protection under Part 4A of this Chapter (protection for whistleblowers); and

a complaint receiver is taken to be a person conducting an investigation under Division 3 of Part 4A for the purposes of section 337CE, but the other provisions in Division 3 of Part 4A do not apply in relation to a complaint made under the procedure; and

section 337DA applies in relation to functions and powers exercised by a complaint receiver under the procedure as if the complaint receiver were an authorised official and the functions and powers were conferred by Part 4A.

Neither of the following is a legislative instrument:

an instrument made under subsection (1);

an instrument made under paragraph (3)(b).

Except to the extent (if any) specified otherwise in a scheme determined under subsection 323B(1), costs of the administration, including costs incurred by the administrator in acting under the scheme and this Act, are to be borne by the CFMEU.

While the Construction and General Division and its branches are under administration, the administrator:

has control of the property and affairs of the Division and its branches; and

may manage that property and those affairs; and

may dispose of any of that property; and

may perform any function, and exercise any power, that the Division or its branches, or any officers of the Division or its branches, could perform or exercise if it were not under administration.

Nothing in subsection (1) limits the generality of anything else in it.

To avoid doubt, in performing functions and exercising powers as administrator, the administrator may undertake investigations into past practices of the Construction and General Division and its branches.

The administrator also has the function of promoting compliance by the Construction and General Division with the laws (including workplace laws) of the Commonwealth, the States and the Territories.

In relation to the obligations this Act imposes on officers and employees of the CFMEU and its branches, divisions and parts, the administrator must also:

ensure that officers and employees have complied (including before this Part commenced) and continue to comply with the obligations; and

to the extent that officers or employees have not complied with the obligations (including before this Part commenced)—as far as reasonably practicable, ensure they are held accountable for having not done so.

In performing functions and exercising powers as administrator, the administrator must:

be satisfied the administrator is acting in the best interests of the members of the Construction and General Division and its branches; and

have regard to the objects of the CFMEU as defined in the rules of the CFMEU at the commencement of section 323A, so far as they are lawful.

References to the property of the Division and its branches include references to property of the CFMEU that, immediately before this Act commenced, was solely or predominantly used for the benefit or the purposes of the Construction and General Division or any of its branches.

Subsection (1) does not apply in relation to a branch for which the administration has ended under subsection 323D(1).

The administrator may, for the purposes of performing the functions or exercising the powers of an administrator, by notice in writing given to a person mentioned in subsection (2), require the person to do either or both of the following, before the end of the period specified in the notice (which must not be less than 14 days):

produce to the administrator documents in the person’s possession, custody, power or control that the administrator reasonably requires to perform the functions or exercise the powers;

provide the administrator with any other information or assistance the administrator reasonably requires to perform the functions or exercise the powers.

The persons are the following:

an officer or employee, or former officer or employee, of the CFMEU or any of its branches, divisions or parts;

an agent or former agent of the CFMEU or any of its branches, divisions or parts;

a person that provides or formerly provided services, under a contract or agreement, to the CFMEU or any of its branches, divisions or parts;

a person prescribed by the regulations.

A person to whom a notice is given must comply with the notice.

Civil penalty: 600 penalty units.

Subsection (3) does not apply if:

the person has a reasonable excuse; and

the person notifies the administrator of the reasonable excuse before the end of the period specified in the notice.

The person bears an evidential burden in relation to the matters in subsection (4).

The administrator is entitled to receive remuneration for necessary work properly performed by the administrator in relation to the administration.

The remuneration is to be paid from the funds of the CFMEU.

The General Manager may, in writing, make any determinations the General Manager considers appropriate to provide for and in relation to remuneration the administrator is entitled to receive for necessary work properly performed by the administrator in relation to the administration.

In making a determination under this section, the General Manager must have regard to whether the remuneration is reasonable, taking into account:

the period during which the work is likely to be performed by the administrator; and

the complexity (or otherwise) of the work likely to be performed by the administrator; and

if the remuneration is worked out wholly or partly on a time-cost basis—the time likely to be properly taken by the administrator in performing the work; and

any other matters the General Manager considers relevant.

Nothing in paragraph (4)(c) requires the administrator to keep timesheets or other records of hours worked.

A determination made under subsection (3) may also provide for, and in relation to, allowances. Subsection (2) applies in relation to any such allowances as if they were remuneration but subsection (4) does not apply.

A determination made under subsection (3) is not a legislative instrument.

To avoid doubt:

(a) subsections 7(9) and (13) of the Remuneration Tribunal Act 1973 do not apply in relation to the office of administrator; and

neither section 323C (appointment etc. of administrator) nor anything in this section has the effect of making the Commonwealth responsible for payments to the administrator.

(1) A person is a removed person if:

any of the following events has happened as a result of a scheme determined under subsection 323B(1):

the person is removed (however described and including by having their office vacated) or suspended as an officer, or the person’s role as an officer otherwise comes to an end;

the person’s employment, as a person employed by the CFMEU or any of its branches, divisions or parts working in the Construction and General Division or any of its branches, is terminated or otherwise comes to an end, or is suspended;

the person is removed (however described) or suspended as a workplace delegate (within the meaning of the Fair Work Act), or the person’s role as a workplace delegate otherwise comes to an end; and

if the event involves suspension—the suspension has not ended.

(2) A person is also a removed person if:

on or after 1 July 2024 and before the Construction and General Division and its branches are placed under administration by force of subsection 323A(1), the person, by the person’s own choice:

ceases to be an officer (within the meaning of this Act) of the Construction and General Division or any of its branches; or

ceases to be a person employed by the CFMEU or any of its branches, divisions or parts working in the Construction and General Division or any of its branches; or

ceases to be a workplace delegate for members of the Construction and General Division or any of its branches; and

during the period of the administration, the administrator formed the opinion that, if the person had not made the choice, the administrator would have taken action under the scheme of administration to ensure the person ceased to be an officer, employee or workplace delegate (as applicable).

This Division does not limit the operation of Part 4 of Chapter 7 (disqualification from office).

Standing for election or being appointed as officer in an organisation

A removed person must not:

become a candidate for election to an office in an organisation or a branch of an organisation; or

be appointed to an office in an organisation or a branch of an organisation.

Civil penalty: 600 penalty units.

Subsection (1) does not apply if the removed person holds a certificate granted under section 323MC.

Being employed or engaged by organisation

A removed person must not start to be employed in, or engaged by, an organisation or a branch, division or part of an organisation.

Civil penalty: 600 penalty units.

Subsection (3) does not apply if the removed person holds a certificate granted under section 323MD.

Evidential burden

A removed person bears an evidential burden in relation to the matters in subsections (2) and (4).

The FWC may, on application in writing by a removed person, grant the removed person a certificate to hold office.

The FWC may grant the certificate if satisfied that the removed person is a fit and proper person to hold office in an organisation.

In deciding whether the removed person is a fit and proper person to hold office in an organisation, the FWC must have regard to the following matters:

the reasons the removed person was removed from office, including whether the removed person engaged or allegedly engaged in a kind of conduct described in subparagraph 141(1)(c)(i), (ii) or (iii);

whether the removed person has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country involving:

fraud or dishonesty; or

intentional use of violence against another person; or

intentional damage or destruction of property;

the general character of the removed person;

the fitness of the removed person to be involved in the management of organisations.

The FWC may also have regard to any other matters the FWC considers relevant.

The FWC must not grant the certificate:

if the removed person has been disqualified under a scheme determined under subsection 323B(1) and the period of the disqualification has not ended; or

at any time while the removed person is not eligible to be a candidate for an election, or to be elected or appointed, to an office in an organisation under subsection 215(1).

The FWC may, on application in writing by a removed person, grant the removed person a certificate to be employed or engaged by an organisation.

The FWC may grant the certificate if satisfied that the removed person is a fit and proper person to be employed or engaged by an organisation.

The FWC must not grant the certificate:

if the removed person has been disqualified under a scheme determined under subsection 323B(1) and the period of the disqualification has not ended; or

at any time while the removed person is not eligible to be a candidate for an election, or to be elected or appointed, to an office in an organisation under subsection 215(1).

Nothing in this Division affects the operation of Crimes Act 1914 (which includes provisions relieving persons from requirements to disclose spent convictions).Part VIIC of the

An administrator, or a person acting under the direction of an administrator, is not liable to civil proceedings for loss, damage or injury of any kind suffered by a person in relation to an act done, or omitted to be done, in good faith and either:

in the performance or exercise, or the purported performance or exercise, of any function or power of the administrator as an administrator under a scheme determined under subsection 323B(1); or

in preparing for the performance or exercise of any such function or power (including before appointment as an administrator).

Anti-avoidance provision

A person contravenes this subsection if:

the person engages in conduct or a course of conduct; and

as a result of the conduct or course of conduct:

another person or body is prevented from taking action under a scheme determined under subsection 323B(1); or

the administrator is prevented from effectively administering a scheme determined under subsection 323B(1).

Civil penalty provision

A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 600 penalty units.

Subsection (2) does not apply if the person has a reasonable excuse.

The person bears an evidential burden in relation to the matter in subsection (3).

Offence provision

A person commits an offence if the person contravenes subsection (1).

Penalty: Imprisonment for 2 years or 3,000 penalty units.

For the purposes of subsection (5):

the physical elements of the offence are set out in subsection (1); and

the fault element for paragraph (1)(b) is that the person engages in the conduct or course of conduct for the sole or dominant purpose of bringing about a result mentioned in that paragraph.

A person who is involved in a contravention of a civil penalty provision in this Part is taken to have contravened that provision.

Note: The Criminal Code also has provisions that extend liability to a person involved in a contravention of the offence provision in subsection 323P(5) (see Part 2.4 of the Criminal Code).

(2) For the purposes of subsection (1), a person is involved in a contravention of the civil penalty provision if, and only if, the person:

has aided, abetted, counselled or procured the contravention; or

has induced the contravention, whether by threats or promises or otherwise; or

has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

has conspired with others to effect the contravention.

Section 604 of the Fair Work Act does not apply to a decision made for the purposes of this Part, other than a decision made under section 323MC or 323MD.

If the operation of this Part, or an instrument made under this Part, would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph), the Commonwealth is liable to pay a reasonable amount of compensation to the person.

If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia or the Supreme Court of a State or Territory for the recovery from the Commonwealth of such reasonable amount of compensation as the Court determines.

The administrator of a scheme determined under subsection 323B(1) must give the Minister a report about the operation of the scheme:

no later than 6 months after the Construction and General Division and its branches are placed under administration by force of subsection 323A(1); and

at the end of every subsequent 6 month period until the administration ends.

A report must include:

a statement outlining the administrator’s activities under this Part during the preceding 6 month period; and

a statement listing any transactions that occurred during the preceding 6 month period involving the Construction and General Division, or any of its branches, if the administrator is of the opinion that the transactions may be unlawful; and

a copy of a general purpose financial report that is relevant to the Construction and General Division and the preceding 6 month period; and

a copy of any other financial records of the Construction and General Division, or any of its branches, that the administrator considers appropriate to include in the report.

The Minister must table a copy of a report in each House of the Parliament within 15 sitting days of that House after the Minister receives it.

Subject to this Division, the Minister may, on application made by a person under subsection (2), authorise payment by the Commonwealth to the person of financial assistance in relation to the whole or part of the person’s relevant costs, if the Minister is satisfied:

that hardship is likely to be caused to the person if the application is refused; and

that in all the circumstances it is reasonable that the application should be granted.

An application may be made to the Minister for financial assistance under this Division by the following persons (other than organisations) in the following circumstances:

a person who made an application under section 163, 164 or 164A, where the Federal Court granted a rule calling on another person, or an organisation, to show cause why an order should not be made under section 163, 164 or 164A in relation to the other person or organisation;

a person who was a party, otherwise than as an applicant, to a proceeding under section 163, 164 or 164A;

a person who made an application under section 164, where the Federal Court made an interim order under subsection 164(4);

a person who applied for an inquiry into an election, where the Federal Court found that an irregularity happened;

a person who applied for an inquiry into an election, where the Federal Court certified under subsection 325(1) that the person acted reasonably in applying;

a person who incurred costs in relation to an inquiry into an election, other than a person who applied for the inquiry;

a member of an organisation who made an application under subsection 215(5), where the Federal Court declared that the person the subject of the application was not eligible to be a candidate for election or to be elected or appointed or had ceased to hold office;

a member of an organisation who made an application under subsection 215(5), where the Federal Court certified under subsection 325(2) that the member acted reasonably in making the application;

a person who incurred costs in relation to an application made under subsection 215(5), other than the person who made the application;

a person who made an application to the Federal Court under section 216 or 217, where, on the application, the Federal Court granted the person leave under paragraph 216(2)(a) or 217(2)(a) or refused the person leave under paragraph 216(2)(b) or 217(2)(b);

a person who applied for an inquiry into a ballot under Part 2 of Chapter 3, where the Federal Court found that an irregularity happened;

a person who applied for an inquiry into a ballot under Part 2 of Chapter 3, where the Federal Court certified under subsection 325(3) that the person acted reasonably in applying;

a person who incurred costs in relation to an inquiry into a ballot under Part 2 of Chapter 3, other than the person who applied for the inquiry;

a person who was a party to a proceeding under Part 3 of Chapter 3;

a person who was a party to a proceeding under Part 2 of Chapter 11;

a person who made an application under section 167, where the Federal Court granted a rule calling on another person, or an organisation, to show cause why an order should not be made under subsection 167(2) in relation to the other person or organisation.

(3) In subsection (1), relevant costs means:

in the case of a person referred to in paragraph (2)(a), (c), (k) or (q)—the costs incurred by the person in relation to the application concerned; or

in the case of a person referred to in paragraph (2)(b) or (p)—the costs incurred by the person in relation to the proceeding concerned; or

in the case of a person referred to in paragraph (2)(d), (e), (m) or (n)—the costs incurred by the person in relation to the inquiry concerned; or

in the case of a person referred to in paragraph (2)(f), (j) or (o)—the costs referred to in that paragraph; or

in the case of a member of an organisation referred to in paragraph (2)(g) or (h)—the costs incurred by the member in relation to the application concerned.

Where a person has applied for an inquiry into an election but the Federal Court does not find that an irregularity happened, the Court may certify for the purposes of this Division that the person acted reasonably in applying.

Where a member of an organisation has made an application under subsection 215(5) but the Federal Court does not declare that the person who is the subject of the application was not eligible to be a candidate or to be elected or appointed or had ceased to hold office, the Court may certify for the purposes of this Division that the member acted reasonably in making the application.

Where a person has applied for an inquiry into a ballot under Part 2 (amalgamation) or Part 3 (withdrawal from amalgamation) of Chapter 3 but the Federal Court does not find that an irregularity happened, the Court may certify that the person acted reasonably in applying.

The Minister may refuse an application made by a person referred to in paragraph 324(2)(a), (b), (c) or (q) if satisfied that:

the order sought in the proceeding concerned is the same or substantially the same as an order obtained or sought in another relevant proceeding and the proceeding involves the determination of the same or substantially the same questions of fact or law or mixed fact and law as were or are involved in the determination of the other relevant proceeding; or

it would be contrary to the interests of justice to grant financial assistance to the applicant in relation to the proceeding concerned.

In subsection (1):

other relevant proceeding means a proceeding that:

was instituted, whether before or after the commencement of this section, before the institution of the proceeding in relation to which the application referred to in that subsection was made; and

has been heard and determined by, or is pending before, the Federal Court.

Where the Minister authorises the payment of financial assistance on application made by a person referred to in paragraph 324(2)(a), (b), (c), or (q), subsections (4) and (5) of this section apply.

The Minister may:

specify the amount, or determine from time to time the amounts, to be paid; or

authorise the payment of such amount as is determined, or such amounts as are determined from time to time, under directions of the Minister.

The Minister may authorise payment to be made by the Commonwealth before or after the hearing or determination by the Federal Court of the proceeding concerned.

Nothing in this Division authorises a payment in relation to fees of more than one counsel appearing for the person applying for financial assistance unless 2 or more counsel appeared, or are to appear, for any other person at the hearing concerned.

Nothing in this Division limits the power of the Federal Court to make an order as to the costs of proceedings before the Court.

A person who is a party to a proceeding (including an appeal) in a matter arising under this Act must not be ordered to pay costs incurred by any other party to the proceeding unless the person instituted the proceeding vexatiously or without reasonable cause.

In subsection (1):

costs includes all legal and professional costs and disbursements and expenses of witnesses.

The General Manager may make inquiries as to whether the following are being complied with:

Part 3 of Chapter 8;

the reporting guidelines made under that Part;

regulations made for the purposes of that Part;

rules of a reporting unit relating to its finances or financial administration.

The General Manager may make inquiries as to whether a civil penalty provision (see section 305) has been contravened.

The person making the inquiries may take such action as he or she considers necessary for the purposes of making the inquiries. However, he or she cannot compel a person to assist with the inquiries under this section.

If the General Manager is satisfied that there are reasonable grounds for doing so, the General Manager may conduct an investigation as to whether:

a provision of Part 3 of Chapter 8 has been contravened; or

the reporting guidelines made under that Part have been contravened; or

a regulation made for the purposes of that Part has been contravened; or

a rule of a reporting unit relating to its finances or financial administration has been contravened; or

a scheme determined under subsection 323B(1) is being effectively implemented.

If the General Manager is satisfied that there are reasonable grounds for doing so, the General Manager may conduct an investigation as to whether a civil penalty provision (see section 305) has been contravened.

The General Manager may also conduct an investigation in the circumstances set out in the regulations.

Where, having regard to matters that have been brought to notice in the course of, or because of, an investigation under subsection (1) or (2), the General Manager forms the opinion that there are grounds for investigating the finances or financial administration of the reporting unit, the General Manager may make the further investigation.

An investigation may, but does not have to, follow inquiries under section 330.

Subject to subsection (2), the General Manager must:

where the documents lodged with the FWC under section 268 include a report of an auditor setting out any:

defect or irregularity; or

deficiency, failure or shortcoming; and

where for any other reason the General Manager considers that a matter revealed in the documents should be investigated—investigate the matter.

The General Manager is not required to investigate the matters raised in the report of the auditor if:

the defect, irregularity, deficiency, failure or shortcoming consists solely of the fact that the organisation concerned has kept financial records for its membership subscriptions separately on a cash basis as provided in subsection 252(4); or

after consultation with the reporting unit and the auditor, the General Manager is satisfied that the matters are trivial or will be remedied in the following financial year.

Where, having regard to matters that have been brought to notice in the course of, or because of, an investigation under subsection (1), the General Manager forms the opinion that there are grounds for investigating the finances or the financial administration of the reporting unit, the General Manager may make the further investigation.

Where documents have been lodged with the FWC under section 268, at least:

if the reporting unit has more than 5,000 members—250 members; or

in any other case—5% of the members of the reporting unit;

may request the General Manager to investigate the finances and the financial administration of the reporting unit.

On receipt of a request under subsection (1), the General Manager must investigate the finances and the financial administration of the reporting unit concerned. The General Manager, in conducting the investigation, is not limited to the most recent financial year for which documents have been lodged and may investigate years for which documents are yet to be lodged.

Where the General Manager receives more than one request in relation to a reporting unit during a financial year, the General Manager is only required to conduct one investigation but may conduct more than one investigation.

If a matter is referred to the General Manager under section 278, the General Manager must conduct an investigation.

This section applies if the General Manager believes on reasonable grounds that a person:

has information or a document that is relevant to an investigation; or

is capable of giving evidence which the General Manager has reason to believe is relevant to an investigation.

For the purpose of the investigation, the General Manager may, by written notice, require the person to do one or more of the following:

to give to the General Manager or a person or body to whom the General Manager has delegated conduct of the investigation, within the period (being a period of not less than 14 days after the notice is given) and in the manner specified in the notice, any information within the knowledge or in the possession of the person;

to produce or make available to the General Manager or a person or body to whom the General Manager has delegated conduct of the investigation, at a reasonable time (being a time not less than 14 days after the notice is given) and place specified in the notice, any documents in the custody or under the control of the person, or to which he or she has access;

to attend before the General Manager or a person or body to whom the General Manager has delegated conduct of the investigation, at a reasonable time (being a time not less than 14 days after the notice is given) and place specified in the notice, to answer questions relating to matters relevant to the investigation, and to produce to the General Manager or the delegate (as the case may be) all records and other documents in the custody or under the control of the person relating to those matters;

to give to the General Manager such other reasonable assistance in connection with the investigation as is specified in the notice.

Note: Failure to comply with a requirement made under this subsection is an offence (see section 337).

A notice requiring a person to attend must:

state the general nature of the matters to which the investigation relates; and

state that the person may be accompanied by another person who may, but does not have to, be a lawyer; and

set out the effect of section 337AD (self-incrimination); and

state whether or not the person will be required to answer questions on oath or affirmation; and

if the person will be required to answer questions on oath or affirmation—set out the effect of section 335F (attendee’s lawyer).

Note: For questioning on oath or affirmation, see Division 3.

The General Manager must complete an investigation as soon as practicable.

This Division applies if a person (the attendee) is required, for the purposes of an investigation, to attend before another person (the investigator) to answer questions on oath or affirmation.

The investigator may question the attendee on oath or affirmation and may, for that purpose:

require the attendee to either take an oath or make an affirmation; and

administer an oath or affirmation to the attendee.

Note: Failure to comply with a requirement made under this subsection is an offence (see section 337AA).

The oath or affirmation to be taken or made by the attendee for the purposes of the investigation is an oath or affirmation that the statements that the attendee will make will be true.

The investigator may require the attendee to answer a question that is put to the attendee at the investigation.

Note: Failure to comply with a requirement made under this subsection is an offence (see section 337).

The questioning must take place in private and the investigator may give directions about who may be present during the questioning, or during a part of it.

A person must not be present during the questioning unless he or she is:

the investigator or the attendee; or

the General Manager or a member of the staff of the FWC authorised by the General Manager to be present; or

is entitled to be present:

because of a direction under subsection (1); or

because the person is the attendee’s lawyer, or another person accompanying the attendee as mentioned in paragraph 335(3)(a).

Note: Failure to comply with this subsection is an offence (see section 337AA).

The attendee’s lawyer may, at such times during the questioning as the investigator determines:

address the investigator; and

question the attendee;

about matters about which the investigator has questioned the attendee.

If, in the investigator’s opinion, a person is trying to obstruct the questioning by exercising rights under subsection (1), the investigator may require the person to stop addressing the investigator, or questioning the attendee, as the case requires.

Note: Failure to comply with a requirement made under this subsection is an offence (see section 337AA).

The investigator may, and must if the attendee so requests, cause a record to be made of statements made during the questioning.

If a record made under subsection (1) is in writing or is reduced to writing:

the investigator may require the attendee to read it, or to have it read to him or her, and may require him or her to sign it; and

the investigator must, if requested in writing by the attendee to give to the attendee a copy of the written record, comply with the request without charge but subject to such conditions (if any) as the investigator imposes.

Note: Failure to comply with a requirement made under paragraph (2)(a) is an offence (see section 337AA).

If a copy is given to a person under subsection 335G(2) subject to conditions, the person, and any other person who has possession, custody or control of the copy or a copy of it, must comply with the conditions.

Note: Failure to comply with this section is an offence (see section 337AA).

If the General Manager has reasonable grounds to suspect that there are, or may be within the next 3 days, on particular premises in Australia, documents whose production could be required under section 335, he or she may:

lay before a magistrate an information on oath or affirmation setting out those grounds; and

apply for the issue of a warrant to search the premises for those documents.

On an application under this section, the magistrate may require further information to be given, either orally or by affidavit, in connection with the application.

This section applies if, on an application under section 335K, the magistrate is satisfied that there are reasonable grounds to suspect that there are, or may be within the next 3 days, on particular premises, particular documents whose production could be required under section 335.

The magistrate may issue a warrant authorising a member of the Australian Federal Police, whether or not named in the warrant, together with any person so named, with such assistance, and by such force, as is necessary and reasonable:

to enter on or into the premises; and

to search the premises; and

to break open and search anything, whether a fixture or not, in or on the premises; and

to take possession of, or secure against interference, documents that appear to be any or all of those documents.

If the magistrate issues such a warrant, he or she must set out on the information laid before him or her under section 335K for the purposes of the application:

which of the grounds set out in the information; and

particulars of any other grounds;

he or she has relied on to justify the issue of the warrant.

A warrant under this section must:

specify the premises and documents referred to in subsection (1); and

state whether entry is authorised to be made at any time of the day or night or only during specified hours; and

state that the warrant ceases to have effect on a specified day that is not more than 7 days after the day of issue of the warrant.

Before any person enters premises under a search warrant issued under section 335L, a member of the Australian Federal Police must:

announce that the member is authorised to enter the premises; and

give any person at the premises an opportunity to allow entry to the premises.

However, the member of the Australian Federal Police is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure that the effective execution of the warrant is not frustrated.

If the occupier of the premises is present at the premises:

the member of the Australian Federal Police must make available to the occupier a copy of the warrant; and

the occupier is entitled to observe the search being conducted.

The occupier’s right to observe the search being conducted ends if the occupier impedes the search.

This section does not prevent 2 or more areas of the premises being searched at the same time.

If documents are seized under the warrant, the member of the Australian Federal Police or a person assisting the member must provide a receipt for the documents.

If 2 or more documents are seized, they may be covered in the one receipt.

This section applies if:

documents are produced to a person under a requirement made under section 335; or

under a warrant issued under section 335L, a person:

takes possession of documents; or

secures documents against interference; or

by virtue of a previous application of subsection (8) of this section, documents are delivered into a person’s possession.

If paragraph (1)(a) applies, the person may take possession of any of the documents.

The person may inspect, and may make copies of, or take extracts from, any of the documents.

The person may use, or permit the use of, any of the documents for the purposes of a proceeding.

The person may retain possession of any of the documents for so long as is necessary:

for the purposes of exercising a power conferred by this section (other than this subsection and subsection (7)); or

for the purposes of conducting the investigation concerned; or

for a decision to be made about whether or not a proceeding to which the documents would be relevant should be begun; or

for such a proceeding to be begun and carried on.

No-one is entitled, as against the person, to claim a lien on any of the documents, but such a lien is not otherwise prejudiced.

While the documents are in the person’s possession, the person:

must permit another person to inspect at all reasonable times such (if any) of the documents as the other person would be entitled to inspect if they were not in the first-mentioned person’s possession; and

may permit another person to inspect any of the documents.

Unless subparagraph (1)(b)(ii) applies, the person may deliver any of the documents into the possession of the General Manager or of a person authorised by the General Manager to receive them.

If paragraph (1)(a) or (b) applies, the person, or a person into whose possession the person delivers any of the documents under subsection (8), may require:

if paragraph (1)(a) applies—a person who so produced any of the documents; or

in any case—a person who was a party to the compilation of any of the documents;

to explain any matter about the content of any of the documents or to which any of the documents relate.

Note: Failure to comply with a requirement made under this subsection is an offence (see section 337).

If a person fails to produce particular documents in compliance with a requirement made by another person under section 335, the other person may require the first-mentioned person to explain:

where the documents may be found; and

who last had possession, custody or control of the documents and where that person may be found.

Note: Failure to comply with a requirement made under this section is an offence (see section 337).

If a person has power under section 335 to require another person to produce documents relating to the affairs of an organisation, whether or not that power is exercised, the first-mentioned person may require the other person:

to identify property of the organisation; and

to explain how the organisation has kept account of that property.

Note: Failure to comply with a requirement made under this section is an offence (see section 337).

General Manager must notify reporting unit

If, at the conclusion of an investigation, the General Manager is satisfied that a reporting unit has contravened:

a provision of Part 3 of Chapter 8; or

the reporting guidelines; or

a provision of the regulations; or

a rule of the reporting unit relating to the finances or financial administration of the reporting unit;

the General Manager must notify the reporting unit accordingly.

General Manager must make inquiries

The General Manager must also, within 12 months of notifying the reporting unit under subsection (1), make inquiries under section 330 as to whether the reporting unit is complying with the provision, guidelines or rule the contravention of which was notified to the reporting unit under subsection (1).

General Manager may take other action

In addition to taking action under subsection (1) and (1A), the General Manager may do all or any of the following:

issue a notice to the reporting unit requesting that the reporting unit take specified action, within a specified period, to rectify the matter;

apply to the Federal Court for an order under Part 2 of Chapter 10 (civil penalty provisions);

refer the matter to the Director of Public Prosecutions, the Australian Federal Police or a police force of a State or Territory for action in relation to possible criminal offences.

Note: In appropriate circumstances, the General Manager may also make a determination in accordance with section 247 (determination of reporting units).

The General Manager may, on application by the reporting unit, extend any periods specified in the notice issued under subsection (2).

The reporting unit must comply with the request made in the notice issued under subsection (2).

The Federal Court may, on application by the General Manager, make such orders as the Court thinks fit to ensure that the reporting unit complies with subsection (4).

A person commits an offence if:

the person fails, intentionally or recklessly, to comply with a requirement under subsection 335(2):

to give information or produce a document; or

to attend before the General Manager or delegate; or

to give to the General Manager such other reasonable assistance as is specified in a notice under that subsection; or

the person gives information, or produces a document, in purported compliance with a requirement under subsection 335(2), and the person knows, or is reckless as to whether, the information or document is false or misleading; or

when attending before the General Manager or delegate in accordance with a requirement under subsection 335(2), the person makes a statement, whether orally or in writing, and the person knows, or is reckless as to whether, the statement is false or misleading; or

the person fails, intentionally or recklessly, to comply with:

a requirement under subsection 335D(3) to answer a question; or

a requirement under subsection 335N(9) to explain a matter about the content of a document or to which a document relates; or

a requirement under section 335P to explain where documents may be found, and who last had possession, custody or control of the documents and where that person may be found; or

a requirement under section 335Q to identify property of an organisation and explain how the organisation has kept account of that property.

Penalty: 100 penalty units or imprisonment for 2 years, or both.

Paragraphs (1)(a) and (d) do not apply to the extent that the person has a reasonable excuse.

Subparagraphs (1)(d)(ii) and (iii) do not apply to the extent that the person has explained the matter to the best of his or her knowledge or belief.

Subparagraph (1)(d)(iv) does not apply to the extent that the person has, to the extent that the person is capable of doing so, performed the acts referred to in paragraphs 335Q(a) and (b).

Note: A defendant bears an evidential burden in relation to the matters in subsections (2) to (4) (see subsection 13.3(3) of the Criminal Code).

A person commits an offence of strict liability if the person:

fails to comply with a requirement under subsection 335D(1) to take an oath or make an affirmation; or

contravenes subsection 335E(2) (questioning to take place in private); or

fails to comply with a requirement under paragraph 335G(2)(a) in relation to a record of statements made during questioning; or

contravenes section 335H (conditions on use of copies of records of statements made during questioning).

Penalty: 60 penalty units.

A person commits an offence of strict liability if the person fails to comply with a requirement under subsection 335F(2) to stop addressing an investigator, or questioning an attendee.

Penalty: 60 penalty units.

Subsections (1) and (2) do not apply to the extent that the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

A person must not:

engage in conduct that results in the obstruction or hindering of a person in the exercise of a power under this Part; or

engage in conduct that results in the obstruction or hindering of a person who is executing a warrant issued under section 335L.

Penalty: 100 penalty units or imprisonment for 2 years, or both.

Subsection (1) does not apply to the extent that the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) of the Criminal Code).

The occupier, or person in charge, of premises that a person enters under a warrant issued under section 335L must not intentionally or recklessly fail to provide to that person all reasonable facilities and assistance for the effective exercise of his or her powers under the warrant.

Penalty: 25 penalty units or imprisonment for 6 months, or both.

If the General Manager, or a person or body to whom the General Manager has delegated the conduct of an investigation, is investigating, or is about to investigate, a matter, a person must not:

in any case—engage in conduct that results in the concealment, destruction, mutilation or alteration of a document relating to that matter; or

if a document relating to that matter is in a particular State or Territory—engage in conduct that results in the taking or sending of the document out of that State or Territory or out of .

Penalty: 200 penalty units or imprisonment for 5 years, or both.

It is a defence to a prosecution for a contravention of subsection (1) if it is proved that the defendant intended neither to defeat the purposes of the investigation, nor to delay or obstruct the investigation, or any proposed investigation under this Part.

Note: A defendant bears a legal burden in relation to a matter mentioned in subsection (2) (see Criminal Code).section 13.4 of the

For the purposes of this Part, it is not a reasonable excuse for a person to refuse or fail:

to give information; or

to produce a document; or

to sign a record;

in accordance with a requirement made of the person, that the information, producing the document or signing the record might tend to incriminate the person or make the person liable to a penalty.

Subsection (3) applies if:

before:

giving information; or

producing a document; or

signing a record;

pursuant to a requirement made under this Part, a person (other than a body corporate) claims that the information, producing the document or signing the record might tend to incriminate the person or make the person liable to a penalty; and

the information, producing the document or signing the record might in fact tend to incriminate the person or make the person so liable.

The information, or the fact that the person has produced the document or signed the record, is not admissible in evidence against the person in:

a criminal proceeding; or

a proceeding for the imposition of a penalty;

other than a proceeding in respect of:

in the case of giving information or producing a document—whether the information or document is false or misleading; or

in the case of signing a record—whether any statement contained in the record is false or misleading.

This section applies if:

under this Part, a person requires a lawyer:

to give information; or

to produce a document; and

giving the information would involve disclosing, or the document contains, a privileged communication made by, on behalf of or to the lawyer in his or her capacity as a lawyer.

The lawyer is entitled to refuse to comply with the requirement unless the person to whom, or by or on behalf of whom, the communication was made, consents to the lawyer complying with the requirement.

If the lawyer so refuses, he or she must, as soon as practicable, give to the person who made the requirement a written notice setting out:

if the lawyer knows the name and address of the person to whom, or by or on behalf of whom, the communication was made—that name and address; and

if subparagraph (1)(a)(i) applies and the communication was made in writing—sufficient particulars to identify the document containing the communication; and

if subparagraph (1)(a)(ii) applies—sufficient particulars to identify the document, or the part of the document, containing the communication.

Penalty: 10 penalty units or imprisonment for 3 months, or both.

A statement that a person makes on oath or affirmation during an investigation is admissible in evidence against the person in a proceeding unless:

because of subsection 337AD(3), the statement is not admissible in evidence against the person in the proceeding; or

the statement is not relevant to the proceeding and the person objects to the admission of evidence of the statement; or

the statement is qualified or explained by some other statement made by the person on oath or affirmation during the investigation, evidence of the other statement is not tendered in the proceeding and the person objects to the admission of evidence of the first-mentioned statement; or

the statement discloses matter in respect of which the person could claim legal professional privilege in the proceeding if this subsection did not apply in relation to the statement, and the person objects to the admission of evidence of the statement.

Subsection (1) applies in relation to a proceeding against a person even if it is heard together with a proceeding against another person.

If a written record of statements made by a person during questioning is signed by the person under subsection 335G(2) or authenticated in any other prescribed manner, the record is, in a proceeding, prima facie evidence of the statements it records, but nothing in this Part limits or affects the admissibility in the proceeding of other evidence of statements made during the questioning.

If direct evidence by a person (the absent witness) of a matter would be admissible in a proceeding, a statement that the absent witness made on oath or affirmation during an investigation and that tends to establish that matter is admissible in the proceeding as evidence of that matter:

if it appears to the court or tribunal that:

the absent witness is dead or is unfit, because of physical or mental incapacity, to attend as a witness; or

the absent witness is outside the State or Territory in which the proceeding is being heard and it is not reasonably practicable to secure his or her attendance; or

all reasonable steps have been taken to find the absent witness but he or she cannot be found; or

if it does not so appear to the court or tribunal—unless another party to the proceeding requires the party tendering evidence of the statement to call the absent witness as a witness in the proceeding and the tendering party does not so call the absent witness.

This section applies if evidence of a statement made by a person made on oath or affirmation during an investigation is admitted under section 337AG in a proceeding.

In deciding how much weight (if any) to give to the statement as evidence of a matter, regard is to be had to:

how long after the matters to which it related the statement was made; and

any reason the person may have had for concealing or misrepresenting a material matter; and

any other circumstances from which it is reasonable to draw an inference about how accurate the statement is.

If the person is not called as a witness in the proceeding:

evidence that would, if the person had been so called, have been admissible in the proceeding for the purpose of destroying or supporting his or her credibility is so admissible; and

evidence is admissible to show that the statement is inconsistent with another statement that the person has made at any time.

However, evidence of a matter is not admissible under this section if, had the person been called as a witness in the proceeding and denied the matter in cross-examination, evidence of the matter would not have been admissible if adduced by the cross-examining party.

(1) A party (the adducing party) to a proceeding may, not less than 14 days before the first day of the hearing of the proceeding, give to another party to the proceeding written notice that the adducing party:

will apply to have admitted in evidence in the proceeding specified statements made on oath or affirmation during an investigation; and

for that purpose, will apply to have evidence of those statements admitted in the proceeding.

A notice under subsection (1) must set out, or be accompanied by writing that sets out, the specified statements.

Within 14 days after a notice is given under subsection (1), the other party may give to the adducing party a written notice:

stating that the other party objects to specified statements being admitted in evidence in the proceeding; and

specifying, in relation to each of those statements, the grounds of objection.

The period prescribed by subsection (3) may be extended by the court or tribunal or by agreement between the parties concerned.

On receiving a notice given under subsection (3), the adducing party must give to the court or tribunal a copy of:

the notice under subsection (1) and any writing that subsection (2) required to accompany that notice; and

the notice under subsection (3).

If subsection (5) is complied with, the court or tribunal may either:

determine the objections as a preliminary point before the hearing of the proceeding begins; or

defer determination of the objections until the hearing.

If a notice has been given in accordance with subsections (1) and (2), the other party is not entitled to object at the hearing of the proceeding to a statement specified in the notice being admitted in evidence in the proceeding, unless:

the other party has, in accordance with subsection (3), objected to the statement being so admitted; or

the court or tribunal gives the other party leave to object to the statement being so admitted.

A copy of, or an extract from, a document relating to the affairs of an organisation is admissible in evidence in a proceeding as if the copy were the original document, or the extract were the relevant part of the original document, whether or not the copy or extract was made under section 335N.

A copy of, or an extract from, a document is not admissible in evidence under subsection (1) unless it is proved that the copy or extract is a true copy of the document, or of the relevant part of the document.

For the purposes of subsection (2), a person who has compared:

a copy of a document with the document; or

an extract from a document with the relevant part of the document;

may give evidence, either orally or by an affidavit or statutory declaration, that the copy or extract is a true copy of the document or relevant part, as the case may be.

Nothing in this Division renders evidence inadmissible in a proceeding in circumstances where it would have been admissible in that proceeding if this Division had not been enacted.

A person (the investigator) who is about to make, or has made, a requirement of another person under this Part must, if the other person requests evidence of the investigator’s authority to make the requirement, produce to the other person:

a written authorisation issued to the investigator by the General Manager; and

such other evidence (if any) of the investigator’s authority to make the requirement as the General Manager determines.

Evidence Act 1995 apply to questioning on oath or affirmation for the purposes of an investigation in the same way that they apply to a proceeding to which that Act applies under section 4 of that Act.Part 2.2, sections 69, 70, 71 and 147 and Division 2 of Part 4.6 of the

A person who, pursuant to a requirement made under section 335, attends before the General Manager or a person or body to whom the General Manager has delegated the conduct of an investigation, is entitled to the prescribed allowances and expenses (if any).

The General Manager may pay such amount as he or she thinks reasonable on account of the costs and expenses (if any) that a person incurs in complying with a requirement made under this Part.

A person is neither liable to a proceeding, nor subject to a liability, merely because the person has complied, or proposes to comply, with a requirement made, or purporting to have been made, under this Part.

(1) A disclosure of information by a person (the discloser) qualifies for protection under this Part if:

the discloser is one of the following:

an officer or former officer of an organisation, or of a branch of an organisation;

an employee or former employee of an organisation, or of a branch of an organisation;

a member or former member of an organisation, or of a branch of an organisation;

a person who has or had a contract for the supply of services or goods to, or any other transaction with, an organisation or a branch of an organisation;

a person who has or had a contract for the supply of services or goods to, or any other transaction with, an officer or employee of an organisation or of a branch of an organisation who is or was acting on behalf of the organisation or branch;

an officer, former officer, employee or former employee of a person referred to in subparagraph (iv) or (v); and

the disclosure is made to one of the following:

the General Manager;

an FWC Member or a member of the staff of the FWC;

an administrator of a scheme determined under subsection 323B(1), or a person authorised by an administrator under paragraph 323HA(3)(b);

a member of the staff of the Office of the Fair Work Ombudsman (within the meaning of the Fair Work Act); and

the discloser has reasonable grounds to suspect that the information indicates one or more instances of disclosable conduct by:

the organisation or a branch of the organisation; or

an officer or employee of the organisation or of a branch of the organisation.

(2) A disclosure is taken to have been made by a person mentioned in paragraph (1)(a) (the discloser) to a person mentioned in paragraph (1)(b) (the official) if the disclosure is made to the official by a lawyer on the discloser’s behalf.

(3) A disclosure of information by a person (the discloser) qualifies for protection under this Part if:

the discloser is a person mentioned in paragraph (1)(a) in relation to an organisation or a branch of an organisation; and

the disclosure is made to the discloser’s lawyer; and

the discloser has reasonable grounds to suspect that the information indicates one or more instances of disclosable conduct by:

the organisation or a branch of the organisation; or

an officer or employee of the organisation or of a branch of the organisation.

If a person makes a disclosure that qualifies for protection under this Part:

the person is not subject to any civil or criminal liability for making the disclosure; and

no contractual or other remedy may be enforced, and no contractual or other right may be exercised, against the person on the basis of the disclosure.

Note: This subsection does not provide that the person is not subject to any civil or criminal liability for conduct of the person that is revealed by the disclosure.

Without limiting subsection (1):

the person has qualified privilege (see subsection (3)) in respect of the disclosure; and

a contract to which the person is a party may not be terminated on the basis that the disclosure constitutes a breach of the contract.

(3) For the purpose of paragraph (2)(a), qualified privilege, in respect of the disclosure, means that the person:

has qualified privilege in proceedings for defamation; and

is not, in the absence of malice on the person’s part, liable to an action for defamation at the suit of a person;

in respect of the disclosure.

(4) For the purpose of paragraph (3)(b), malice includes ill will to the person concerned or any other improper motive.

This section does not limit or affect any right, privilege or immunity that a person has, apart from this section, as a defendant in proceedings, or an action, for defamation.

(1) A person (the first person) takes a reprisal against another person (the second person) if:

the first person causes (by act or omission) any detriment to the second person; and

when the act or omission occurs, the first person:

believes or suspects that the second person or any other person made, may have made, proposes to make or could make a disclosure that qualifies for protection under this Part; or

should have known that the second person or any other person made, may have made, proposes to make or could make a disclosure that qualifies for protection under this Part.

(2) In this Part, detriment includes (without limitation) any of the following:

dismissal of an employee;

injury of an employee in his or her employment;

alteration of an employee’s position to his or her detriment;

discrimination between an employee and other employees of the same employer;

harassment or intimidation of a person;

harm or injury to a person, including psychological harm;

damage to a person’s property;

damage to a person’s reputation.

Despite subsection (1), a person does not take a reprisal against another person to the extent that the person takes administrative action that is reasonable to protect the other person from detriment.

(1) If the Federal Court or Federal Circuit and Family Court of Australia (applicant), that another person (the respondent) took or threatened to take, or is taking or threatening to take, a reprisal against a person (the target), the Court may make any one or more of the following orders:Division 2) is satisfied, on the application of a person mentioned in subsection (4) (the

an order requiring the respondent to compensate the target for loss, damage or injury as a result of the reprisal or threat;

an order granting an injunction, on such terms as the Court thinks appropriate, to prevent, stop or remedy the effects of the reprisal or threat;

an order requiring the respondent to apologise to the target for taking, or threatening to take, the reprisal;

if the target is or was employed in a particular position with the respondent and the reprisal wholly or partly consists, or consisted, of the respondent terminating, or purporting to terminate, the target’s employment—an order that the target be reinstated in that position or a position at a comparable level;

if the Court thinks it is appropriate—an order requiring the respondent to pay exemplary damages to the target;

any other order the Court thinks appropriate.

However, the Court must not make an order under subsection (1) if the respondent satisfies the Court that the belief or suspicion mentioned in subparagraph 337BA(1)(b)(i) is not any part of the reason for taking the reprisal.

Notwithstanding subsection (2), the Court may make an order under subsection (1) if satisfied that:

the target made, may have made, proposed to make or could have made a disclosure that qualifies for protection under this Part; and

the respondent was under a duty to prevent, refrain from, or take reasonable steps to ensure other persons under the respondent’s control prevented or refrained from, any act or omission likely to result in detriment to the target; and

the respondent failed in part or whole to fulfil that duty.

Any of the following persons may make an application under subsection (1):

the target;

the General Manager;

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

If the reprisal wholly or partly consists, or consisted, of the respondent terminating, or purporting to terminate, the target’s employment, the Court must, in making an order mentioned in paragraph (1)(a), consider the period, if any, the target is likely to be without employment as a result of the reprisal. This subsection does not limit any other matter the Court may consider.

If the Federal Court or Federal Circuit and Family Court of Australia (Division 2) has power under subsection (1) to make an order against a respondent in relation to conduct that constituted or constitutes taking or threatening to take a reprisal against a target, the Court may make any other orders that it thinks appropriate against any other person who has:

aided, abetted, counselled or procured the conduct; or

induced the conduct, whether through threats or promises or otherwise; or

failed to fulfil a duty to prevent, refrain from, or take reasonable steps to ensure other persons under the person’s control prevented or refrained from, the conduct; or

been in any way (directly or indirectly) knowingly concerned in or a party to the conduct; or

conspired with others to effect the conduct.

This section applies to proceedings (including an appeal) in a court in relation to a matter arising under section 337BB if the target makes the application under subsection 337BB(1).

Section 329 does not apply to the proceedings.

The target must not be ordered by the court to pay costs incurred by another party to the proceedings, except in accordance with subsection (4).

The target may be ordered to pay the costs only if:

the court is satisfied that the target instituted the proceedings vexatiously or without reasonable cause; or

the court is satisfied that the target’s unreasonable act or omission caused the other party to incur the costs.

Taking a reprisal

(1) A person (the first person) must not take a reprisal against another person if the first person’s belief or suspicion that a person made, may have made, proposes to make or could make a disclosure that qualifies for protection under this Part is the reason, or part of the reason, for taking the reprisal.

Civil penalty: 100 penalty units.

In proceedings for a contravention of subsection (1), it is not necessary to prove that a person made, may have made, proposed to make or could have made a disclosure that qualifies for protection under this Part.

Threatening to take a reprisal

(3) A person (the first person) must not make a threat to another person (the second person) to take a reprisal against the second person or a third person if:

the first person:

intends the second person to fear that the threat will be carried out; or

is reckless as to the second person fearing that the threat will be carried out; and

the first person’s belief or suspicion that a person made, may have made, proposes to make or could make a disclosure that qualifies for protection under this Part is the reason, or part of the reason, for making the threat.

Civil penalty: 100 penalty units.

For the purposes of subsection (3), the threat may be:

express or implied; or

conditional or unconditional.

In proceedings for a contravention of subsection (3), it is not necessary to prove that the person threatened actually feared that the threat would be carried out.

Taking a reprisal

A person commits an offence if:

the person takes a reprisal against another person; and

the person’s belief or suspicion that a person made, may have made, proposes to make or could make a disclosure that qualifies for protection under this Part is the reason, or part of the reason, for taking the reprisal.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

In a prosecution for an offence against subsection (1), it is not necessary to prove that a person made, may have made, proposed to make or could have made a disclosure that qualifies for protection under this Part.

Threatening to take a reprisal

(3) A person (the first person) commits an offence if:

(a) the first person makes a threat to another person (the second person) to take a reprisal against the second person or a third person; and

the first person:

intends the second person to fear that the threat will be carried out; or

is reckless as to the second person fearing that the threat will be carried out; and

the first person’s belief or suspicion that a person made, may have made, proposes to make or could make a disclosure that qualifies for protection under this Part is the reason, or part of the reason, for making the threat.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

For the purposes of subsection (3), the threat may be:

express or implied; or

conditional or unconditional.

In a prosecution for an offence under subsection (3), it is not necessary to prove that the person threatened actually feared that the threat would be carried out.

To avoid doubt, a person may bring civil proceedings under section 337BB, or civil proceedings for a contravention of subsection 337BD(1) or (3), in relation to the taking of a reprisal, or the threat to take a reprisal, even if a prosecution for a criminal offence against section 337BE in relation to the reprisal or threat has not been brought, or cannot be brought.

Note: Part 2 of Chapter 10 sets out the relationship between civil penalty provisions (including subsections 337BD(1) and (3)) and criminal proceedings (including under section 337BE) arising out of the same conduct.

Section 337B or 337BB has effect despite any other provision of a law of the Commonwealth, unless:

the provision is enacted after the commencement of this section; and

the provision is expressed to have effect despite this Part or that section.

If a disclosure that qualifies for protection under this Part is made (other than a disclosure to a lawyer that qualifies for protection under this Part because of subsection 337A(4)), the person to whom the disclosure is made must allocate the handling of the disclosure to one or more authorised officials (which may be or include the person).

The person must use his or her best endeavours to decide the allocation within 14 days after the disclosure is made.

The person may, after making a decision under subsection (1) or this subsection allocating the handling of the disclosure to one or more authorised officials, decide to allocate the handling of the disclosure to one or more other authorised officials.

For the purposes of deciding an allocation, the person may obtain information from such persons, and make such inquiries, as the person thinks fit.

If a disclosure that qualifies for protection under this Part is allocated to an authorised official, the authorised official must investigate the disclosure.

However, the authorised official may decide not to investigate the disclosure, or (if the investigation has started) not to investigate the disclosure further, under this Division in circumstances prescribed by the regulations.

To avoid doubt, Division 2 continues to apply to the disclosure even if the authorised official decides not to investigate the disclosure, or not to investigate the disclosure further, under this Division.

The investigation under this Division by the authorised official is to be conducted in accordance with any regulations made for the purposes of section 337CC and otherwise as the authorised official thinks fit.

The authorised official may, for the purposes of the investigation, obtain information from such persons, and make such inquiries, as the authorised official thinks fit.

An investigation under this Division must be completed within 90 days after allocation of the handling of the relevant disclosure.

The General Manager may extend, or further extend, the 90-day period by such additional period (which may exceed 90 days) as the General Manager considers appropriate:

on the General Manager’s own initiative; or

on application made by the authorised official; or

on application made by the discloser.

If the 90-day period is extended, or further extended:

the General Manager must inform the discloser of the extension or further extension, and of the reasons for the extension or further extension; and

the authorised official must, as soon as reasonably practicable after the extension or further extension, inform the discloser of the progress of the investigation.

Subsection (3) does not apply if contacting the discloser is not reasonably practicable.

Failure to complete the investigation within the time limit under this section does not affect the validity of the investigation.

The regulations may prescribe procedures to be followed and other matters in relation to allocation of handling of disclosures that qualify for protection under this Part.

The regulations may prescribe procedures to be followed and other matters in relation to investigations under this Division, including in relation to the following:

informing the discloser that an authorised official will investigate a disclosure;

informing the discloser and the General Manager of a decision not to investigate a disclosure, or not to investigate a disclosure further, under this Division;

preparing a report of an investigation;

adopting a finding of another investigation or inquiry for the purposes of an investigation.

If an authorised official to whom a disclosure is allocated suspects on reasonable grounds that some or all of:

the information disclosed; or

any other information obtained in the course of investigation of the disclosure;

is evidence of the commission of an offence against a law of the Commonwealth, a State or a Territory, the authorised official may disclose the information, to the extent that it is such evidence, to a member of an Australian police force that is responsible for the investigation of the offence.

However, if the offence is punishable by imprisonment for life or by imprisonment for a period of at least 2 years, the authorised official must so notify such a member.

If an authorised official to whom a disclosure is allocated suspects on reasonable grounds that some or all of:

the information disclosed; or

any other information obtained in the course of investigation of the disclosure;

is evidence of a contravention of the Competition and Consumer Act 2010, the authorised official may disclose the information, to the extent that it is such evidence, to the Australian Competition and Consumer Commission.

This section does not, by implication, limit a person’s power to notify a matter to a member of an Australian police force, the Australian Competition and Consumer Commission or another agency or person.

A person is not subject to any criminal or civil liability because the person (voluntarily or otherwise) gives information, produces a document or answers a question if:

the person does so when requested to do so by a person conducting an investigation under this Division; and

the information, document or answer is relevant to the investigation.

Note: The first person may be the person whose disclosure gave rise to the disclosure investigation.

(2) This section does not apply to liability for an offence against Criminal Code that relates to the information, document or answer, as the case may be.section 137.1, 137.2, 144.1 or 145.1 of the

This section does not apply to proceedings for a breach of a designated publication restriction.

To avoid doubt, if the information, document or answer relates to the person’s own conduct, this section does not affect his or her liability for the conduct.

A reference in this Division to this Part includes a reference to regulations made for the purposes of section 337CC.

A person to whom a disclosure that qualifies for protection under this Part is made or an authorised official (or a delegate of an authorised official) is not liable to any criminal or civil proceedings, or any disciplinary action (including any action that involves imposing any detriment), for or in relation to an act or matter done, or omitted to be done, in good faith:

in the performance, or purported performance, of any function conferred on the person or authorised official by this Part; or

in the exercise, or purported exercise, of any power conferred on the person or authorised official by this Part.

This section does not apply to a breach of a designated publication restriction.

This Part is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Part.

This Part does not affect the law relating to legal professional privilege.

This Part does not, by implication, limit the investigative powers conferred on an authorised official by a law of the Commonwealth other than this Part.

This Part does not detract from any obligations imposed on an authorised official by a law of the Commonwealth other than this Part.

If:

an organisation is divided into branches; and

the operations of one of the branches is confined to a prescribed State or the operations of 2 or more of the branches are each confined to a prescribed State; and

the organisation proposes in accordance with this Part to amalgamate with an associated body as defined by this Part for the purpose of seeking the non-corporate registration of the branch, or of any of the branches, referred to in paragraph (b) under an Act of the State concerned that is, or under Acts of the States concerned each of which is, a prescribed State Act for the purposes of this Part;

then, in addition to the other provisions of this Act, this Part applies to the organisation but so applies only in relation to the branch or branches referred to in paragraph (c).

In this Part, unless the contrary intention appears:

amalgamation means the carrying out of arrangements in relation to an organisation and an associated body under which it is intended that: a branch of the organisation is to obtain non-corporate registration under a prescribed State Act; and the associated body is to be de-registered under a prescribed State Act; and members of the associated body who are not already members of the organisation are to become members of the organisation; and the property of the associated body is to become the property of the organisation forming part of the branch fund of the branch; and the liabilities of the associated body are to be satisfied from the branch fund of the branch.

a branch of the organisation is to obtain non-corporate registration under a prescribed State Act; and

the associated body is to be de-registered under a prescribed State Act; and

members of the associated body who are not already members of the organisation are to become members of the organisation; and

the property of the associated body is to become the property of the organisation forming part of the branch fund of the branch; and

the liabilities of the associated body are to be satisfied from the branch fund of the branch.

associated body means an association registered under a prescribed State Act that is or purports to be composed of substantially the same members, and has or purports to have substantially the same officers, as a branch of the organisation in the same State, including such an association that has purported to function as a branch of the organisation.

State means a prescribed State.

The rules of a branch of an organisation must provide for a fund of the branch that is to be managed and controlled under rules of the branch, and must make provision in relation to the fund in accordance with subsection (2).

The branch fund is to consist of:

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

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

interest, rents, dividends or other income derived from the investment or use of the fund; and

a superannuation or long service leave or other fund operated or controlled by the branch for the benefit of its officers or employees; and

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

property acquired wholly or mainly by expenditure of the money of the fund or derived from other assets of the fund; and

the proceeds of a disposal of parts of the fund.

The FWC may grant to a branch of an organisation exemption from this section or any provision of this section on the ground that the branch’s rules make adequate and reasonable provision for its funds, having regard to the organisation’s functioning under this Act and the Fair Work Act and its participation in any State workplace relations system.

Subsections (2) and (3) apply in relation to the consideration by the FWC of an application under section 158 for consent to a change in the name, or an alteration of the eligibility rules, of an organisation.

The FWC must, in addition to any other relevant matters, have regard to:

whether there is, in relation to the organisation, an associated body registered under a prescribed State Act; and

whether the reason the change is sought is to enable the organisation, in addition to representing members or staff members under this Act or the Fair Work Act, to represent under the State Act a class of persons who would, if the change were consented to, become eligible for membership.

In the case of an alteration to a rule that may effect a change in the class of persons eligible for membership of a branch of the organisation that is registered under the law of a State, the FWC must, before consenting, give notice of the proposed change to the industrial registrar or similar officer appointed under the law of the State in which the branch operates and, if so requested, consult with the industrial registrar or officer.

The rules of an organisation must provide for the autonomy of a branch in matters affecting members of the branch only and matters concerning the participation of the branch in a State workplace relations system.

Where it is not contrary to the rules of an organisation to do so, the organisation may participate in workplace relations systems.

For the purpose of participating, a branch of an organisation may become registered under a law of a State so long as that registration does not involve the branch in becoming incorporated, or otherwise becoming a legal entity, under the law of the State.

Where an organisation participates, its rules may provide that the secretary of the branch of the organisation in the State is the person to sue or to be sued under the law of the State in relation to any acts or omissions arising from its participation.

An organisation and an associated body may amalgamate in the manner set out in this Division.

The committee of management of an organisation and the committee of management of the associated body must each pass a resolution proposing amalgamation and specifying particulars of the proposed amalgamation.

Application must be made to the FWC by the organisation for approval of the amalgamation.

The application must be accompanied by a copy of any proposed alterations of the rules of the organisation.

If the rules of the organisation do not comply, subject to subsection 362(3), with Division 3 in respect of each branch for which the organisation proposes to seek non-corporate registration under a prescribed State Act, the proposed alterations must include alterations necessary for the rules so to comply.

The FWC must:

determine what notice is to be given to other persons of the application; and

determine whether, on whom and how notice should be served and whether it should be advertised in any newspaper; and

fix a period during which objections may be lodged.

Objection may be made to the amalgamation, so far as it involves an alteration of the eligibility rules of the organisation, by:

another organisation; or

a member of the associated body; or

a registered association in the State in which the associated body functions;

because there is another organisation to which the members of the associated body, whose eligibility for membership would depend on the alteration, could more conveniently belong.

Objection may be made to the amalgamation by a member of the organisation or of the associated body on the ground that:

the provisions of this section have not been complied with; or

the amalgamation would do substantial injustice to the members of the organisation or associated body.

If any objections are duly lodged or if the FWC otherwise deems it advisable to do so, the FWC must:

fix a day and place of hearing; and

determine to whom and in what manner notice of the day and place of the hearing shall be given.

If the FWC:

finds that no duly made objection is justified; and

is satisfied that the provisions of this section have been complied with; and

is satisfied that the amalgamation would not do substantial injustice to the members of the organisation or of the associated body; and

is satisfied that any proposed alterations of the rules of the organisation:

comply with and are not contrary to this Act and applicable modern awards; and

are not otherwise contrary to law; and

have been decided on under the rules of the organisation;

the FWC must, subject to subsection (10), approve the amalgamation and fix the day on which the amalgamation is to take effect, but otherwise the FWC must refuse to approve the amalgamation.

The FWC must not approve an amalgamation unless the FWC is satisfied as to arrangements made relating to property and liabilities of the associated body.

On the day on which the amalgamation takes effect, any alteration of the rules of the organisation takes effect.

On the day on which the amalgamation takes effect, all members of the associated body who are not already members of the organisation but are or become, on that day, eligible for membership of the organisation:

become members of the organisation; and

are to be taken to have been members for the period ending on that day during which they were members of the associated body.

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