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2019 - 2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
FAIR WORK (REGISTERED ORGANISATIONS) AMENDMENT (WITHDRAWAL
FROM AMALGAMATIONS) BILL 2020
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Minister for Industrial Relations, the Honourable Christian Porter MP)
Outline
FAIR WORK (REGISTERED ORGANISATIONS) AMENDMENT (WITHDRAWAL
FROM AMALGAMATIONS) BILL 2020
OUTLINE
The Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations)
Bill 2020 (the Bill) would amend the Fair Work (Registered Organisations) Act 2009 (the
Act) to uphold the principle of freedom of association by enabling constituent parts of
registered organisations that have amalgamated with other organisations to apply to the Fair
Work Commission to hold a ballot of its members on whether to withdraw from the
amalgamated organisation outside the current time-limited period of five years
post-amalgamation, in specified circumstances.
The Bill would require the Minister to cause an independent review of the operation of the
amendments made by Schedule 1 to the Bill within two years after the amendments set out in
that Schedule commence.
FINANCIAL IMPACT
Nil
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Notes on Clauses
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
FAIR WORK (REGISTERED ORGANISATIONS) AMENDMENT (WITHDRAWAL
FROM AMALGAMATIONS) BILL 2020
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
The object of the Fair Work (Registered Organisations) Amendment (Withdrawal from
Amalgamations) Bill 2020 (the Bill) is to amend the Fair Work (Registered Organisations)
Act 2009 (the Act) to uphold the principle of freedom of association and provide constituent
parts (for example, branches, divisions or parts) of registered organisations that have
amalgamated with other organisations, the freedom to withdraw from the amalgamated
organisation and become a new registered organisation outside the current time-limited
period of five years post-amalgamation, in specified circumstances.
The Bill recognises that all constituent parts of amalgamated organisations should have the
freedom to decide on the governance and structure that will allow them to best represent the
interests of their members. Over time, a constituent part of an amalgamated organisation may
find that the organisation no longer represents the values and interests of the constituent
part's members, and may instead wish to withdraw from the amalgamated organisation and
become a new registered organisation. Accordingly, the Bill makes technical amendments to
address the current limitations in the Act that place time limits on when a part can seek to
withdraw from an amalgamation and provides a process for applying to undertake a ballot of
the constituent part's members on the question of withdrawal from amalgamation.
Currently, Part 2 of Chapter 3 of the Act provides a framework for two or more organisations
to amalgamate, and Part 3 sets out a process that enables a constituent part of the
amalgamated organisation to withdraw from the amalgamated organisation. The Act
currently provides that an application can be made to the Fair Work Commission (FWC) for a
ballot to allow members of the constituent part to vote on whether that part of an
amalgamated organisation can withdraw from the organisation. This application must be
made within the period of two to five years after the amalgamation occurred.
The Bill addresses the time limitation in the Act by establishing a procedure by which a
constituent part of an amalgamated organisation can withdraw from that organisation beyond
the five year time limit. In such circumstances, the FWC can accept an application from a
constituent part to hold a ballot of its members on the question of whether to withdraw from
an amalgamated organisation if the FWC is satisfied it is appropriate to accept the application
having regard to the following matters:
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Statement of Compatibility with Human Rights
whether the amalgamated organisation has a record of not complying with workplace
or safety laws (as defined in the amendments) and any contribution of the constituent
part to that record; and
the likely capacity of the constituent part seeking to withdraw to promote and protect
the economic and social interests of its members as an independent registered
organisation.
The Bill sets out a process for how the rules of the amalgamated organisation and newly
registered organisation are to accommodate the new arrangements.
An application made to the FWC for a ballot of the constituent part's members must be
accompanied by the proposed names and rules of the newly registered organisation and the
amalgamated organisation once withdrawal takes effect.
The FWC may accept undertakings it considers appropriate to avoid demarcation disputes
once it has determined to order a ballot be held.
Where the outcome of the ballot is withdrawal from amalgamation, each person who,
immediately before the registration of the newly registered organisation, was a constituent
member of the constituent part, ceases to be a member of the amalgamated organisation and
becomes a member of the newly registered organisation. It is open to those members to resign
from the newly registered organisation if they choose.
To ensure that ballots can still be undertaken where an exemption is in force under
section 186 of the Act (Commissioner may permit organisation or branch to conduct its
elections for office), the FWC may order that a ballot be conducted by a designated official of
the constituent part.
The Bill also requires the Minister to undertake an independent review of the operation of the
amendments made by the Bill no later than 2 years after the amendments commence.
Human rights implications
The definition of 'human rights' in the Human Rights (Parliamentary Scrutiny) Act 2011
relates to the seven core United Nations human rights treaties. The Bill engages with the
following rights:
rights to work in Article 22 of the International Covenant on Civil and Political
Rights (ICCPR) and Articles 6 and 8(1)(a) of the International Covenant on
Economic, Social and Cultural Rights (ICESCR) including:
o the right to freedom of association;
o the right to form and join trade unions; and
o the right of trade unions to function freely;
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Notes on Clauses
right to justice and a fair trial in Article 14 of the ICCPR.
The content of the rights to work and rights in work in the ICESCR can be informed by
treaties of the International Labour Organisation (ILO), such as the Freedom of Association
and Protection of the Right to Organise Convention 1948 (No. 87) (ILO Convention 87),
which provides employer and employee organisations with protection for their organisational
autonomy.
The Right to Freedom of Association and the Right to take part in Public Affairs and Elections
The right of everyone to form trade unions and join the trade union of his choice,
subject only to the rules of the organisation concerned, for the promotion and
protection of his economic and social interests. No restrictions may be placed on the
exercise of these rights other than those prescribed by law and which are necessary in
a democratic society in the interests of national security or public order or for the
protection of the rights and freedoms of others.
Article 8(1) of ILO Convention 87 provides that:
1. In exercising the rights provided for in this Convention workers and employers and
their respective organisations, like other persons or organised collectives, shall
respect the law of the land.
The Bill engages the right to freedom of association and the right to take part in public affairs
and elections, by enabling a constituent part of an amalgamated organisation to apply to the
FWC to hold a ballot of its members on whether the constituent part can withdraw from the
amalgamated organisation outside the current time-limited period of five years
post-amalgamation.
The right appropriately recognises that organisations and officials, like other persons or
organised collectives, shall respect the law of the land. Where the provisions of the Bill
engage the right to freedom of association, any limitations on the right is permissible as they
pursue a legitimate objective, are prescribed by law, and are reasonable, necessary and
proportionate. They have the sole objective of protecting the interests of members and
guaranteeing the democratic functioning of organisations. The amendments do not limit the
ability of members to form and join trade unions.
The Right to Justice and a Fair Trial
Article 14 of the ICCPR provides that:
1. All persons shall be equal before the courts and tribunals. In the determination of
any criminal charge against him, or of his rights and obligations in a suit at law,
everyone shall be entitled to a fair and public hearing by a competent,
independent and impartial tribunal established at law ...
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2. Everyone charged with a criminal offence shall have the right to be presumed
innocent until proved guilty according to law.
The Bill engages the right to justice and a fair trial by imposing a civil penalty provision in
subsection 95A(9). A registered organisation will be subject to a maximum of 100 penalty
units if they fail to comply with a direction of the General Manager of the FWC or the
Registered Organisations Commissioner to provide information pursuant to section 95A(8).
The proposed civil penalty in section 95A does not carry the potential for a criminal
conviction. It also does not carry a penalty of imprisonment, and there is no sanction of
imprisonment for non-payment of any penalty. As such, the civil penalty provision achieves
an appropriate balance between deterring registered organisations from non-compliance with
the new statutory requirement, and imposing an appropriate non-criminal penalty which
correlates with the impact of non-compliance.
Therefore, this civil penalty provision in the Bill should not be considered 'criminal' for the
purpose of Article 14 of the ICCPR. It promotes the right to justice and a fair trial by
proportionately imposing liability by way of a non-criminal sanction for registered
organisations who fail to comply the requirements under section 95A.
These amendments address the legitimate objective of ensuring that organisations are
functioning effectively so that they can best serve the interests and wishes of their members.
By providing a clear, but reasonably limited, extension of the existing withdrawal from
amalgamation provisions in the Act, the Bill will provide appropriate flexibility to constituent
parts of registered organisations to withdraw from amalgamation in situations where an
amalgamation is no longer desirable, or where the current composition of the amalgamated
organisation may no longer be serving the best interests of members.
The measure is reasonable and proportionate, and will only have an impact on registered
organisations when utilised by the organisations themselves via a ballot of the membership. It
is sufficiently circumscribed in that it does not impact on the rights of workers to continue to
be represented by a registered organisation. If the constituent part withdraws under these
amendments, the membership of that constituent part will become members of the newly
registered organisation, noting members are free to resign their membership should they
choose. This measure is properly supervised by the FWC to ensure rigorous and robust
consideration of withdrawal applications. In addition, the Bill does not limit the right to take
protected industrial action.
Conclusion
The Bill is compatible with human rights because the measures will be effective in achieving
enhanced governance and operations of registered organisations, so that they are able to
better represent the interests of their members.
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Notes on Clauses
NOTES ON CLAUSES
Preliminary
In these notes on clauses, the following abbreviations are used:
Act Fair Work (Registered Organisations) Act 2009
AEC Australian Electoral Commission
Bill Fair Work (Registered Organisations) Amendment (Withdrawal from
Amalgamations) Bill 2020
Commissioner Registered Organisations Commissioner
FW Act Fair Work Act 2009
FWC Fair Work Commission
General Manager General Manager of the Fair Work Commission
Regulations Fair Work (Registered Organisations) Regulations 2009
Clause 1 - Short title
1. This clause provides for the short title of the Act to be the Fair Work (Registered
Organisations) Amendment (Withdrawal from Amalgamations) Act 2020.
Clause 2 - Commencement
2. The table in this clause sets out when the provisions of the Bill commence. Item 1 in
the table provides that the whole of the Bill will commence on the day after the Bill receives
Royal Assent.
Clause 3 - Schedules
3. Clause 3 of the Bill provides that legislation that is specified in a Schedule is amended
or repealed as set out in that Schedule, and any other item in a Schedule operates according to
its terms.
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Schedule 1 - Amendments
SCHEDULE 1 - AMENDMENTS
Overview
4. This Schedule would amend the Act to:
enable constituent parts of amalgamated organisations to seek to withdraw from the
amalgamated organisation beyond 5 years after the amalgamation took effect, where
certain requirements are met;
provide for procedural requirements in relation to applications for ballots under Part 2
of Chapter 3 and the conduct of such ballots, and other matters; and
make technical amendments to support the operation of the changes made by the Bill.
Fair Work (Registered Organisations) Act 2009
Item 1 - section 34
5. This item makes a minor technical amendment to the simplified outline of Chapter 3
to amend the reference to 'Federal Court' to the 'FWC', which is the relevant body to which
an application to approve a ballot to withdraw is to be made.
Item 2 - paragraph 92(b)
6. The item inserts the words 'divisions or parts' in paragraph 92(b) to clarify that the
object of Part 3 is to provide certain organisations that have taken part in amalgamations to be
reconstituted and re-registered and branches, divisions or parts of organisations of that kind to
be formed into organisations and registered in a way that is fair to members of the
organisations concerned, and the creditors of those organisations.
Item 3 - after section 92
Section 92A - Review of amendments made by the Fair Work (Registered Organisations)
Amendment (Withdrawal from Amalgamations) Act 2020
7. Item 3 inserts new section 92A. New subsection 92A(1) requires the Minister to cause
a review of the operation of amendments made by Schedule 1 to the Bill.
8. New subsection 92A(2) specifies that the review must be completed, and a written
report given to the Minister, no later than two years after the day the amendments
commenced.
9. New subsection 92A(3) requires that a copy of the report be tabled in each House of
Parliament within 15 sitting days of that House after the report is given to the Minister.
Item 4 - subsection 93(1) (definition of amalgamated organisation)
Item 5 - subsection 93(1) (at the end of the definition of amalgamated organisation)
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Item 6 - subsection 93(1) (at the end of paragraph (b) of the definition of constituent
member)
Item 7 - subsection 93(1) (subparagraph (b)(i) of the definition of constituent part)
Item 10 - subsection 93(1) (paragraph (a) of the definition of separately identifiable
constituent part)
10. These items amend certain definitions set out in section 93 to reflect the fact that the
withdrawal from amalgamation provisions in Part 3 of Chapter 3 will apply to amalgamations
and associated de-registrations that occurred under predecessor law.
11. 'Predecessor law' is a defined term: see item 9.
Item 8 - subsection 93(1)
12. This item inserts a new definition for 'designated official' in the definitions for Part 3
of Chapter 3 of the Act. 'Designated official' has the meaning given by subsection 102(1A)
and is relevant for the purposes of who can conduct a ballot in accordance with section 102.
Item 9 - subsection 93(1)
13. This item inserts a new definition for 'predecessor law' in section 93 for the purposes
of Part 3 of Chapter 3 of the Act. A 'predecessor law' means:
Part 2 of Chapter 3 of Schedule 1 to the Workplace Relations Act 1996 as in force at
any time on or after 27 March 2006 (paragraph (a));
Part 2 of Chapter 3 of Schedule 1B to the Workplace Relations Act 1996 (paragraph
(b)); or
Division 7 of Part IX of the Workplace Relations Act 1996 as in force at any time
after 1 February 1991 (paragraph (c)).
14. In conjunction with the amendments in items 4 - 7 and 10, this item ensures that the
withdrawal from amalgamation provisions in Part 3 of Chapter 3 will apply to amalgamations
that occurred prior to 1 July 2009, when Part 2 of the Act commenced. Item 11 (definition of
separately identifiable constituent part), described below, also ensures that the provisions in
Part of Chapter 3 are also available to a branch, division or part of an amalgamated
organisation that is separately identifiable under the rules of the organisation.
Item 11 - subsection 93(1) (at the end of the definition of separately identifiable
constituent part)
15. This item adds to the definition of separately identifiable constituent part, new
paragraph (c) which is, any branch, division or part of the amalgamated organisation not
covered by existing paragraphs (a) and (b) that is separately identifiable under the rules of the
organisation.
16. The effect of this amendment is to provide that the withdrawal provisions set out in
Part 3 of Chapter 3 apply to any branch, division or part of an amalgamated organisation that
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is separately identifiable under the rules of the organisation. This means that the ability to
withdraw from an amalgamation is not limited by the pre-requisite of de-registration in
connection with the formation of the amalgamated organisation.
Item 12 - subsection 93(1)
17. This item inserts a new definition of workplace or safety law to mean any of the
following:
the Act;
the Fair Work Act 2009;
the Building and Construction Industry (Improving Productivity) Act 2016;
the Work Health and Safety Act 2011;
a State or Territory OHS law (within the meaning of the Fair Work Act).
18. The definition of workplace or safety law is relevant to the assessment by the FWC in
new section 94A as to whether it should accept an application for ballot more than five years
after amalgamation.
Item 13 - subsection 93(2)
Item 14 - paragraph 93(2)(a)
Item 15 - paragraph 93(2)(b)
Item 16 - subparagraph 93(2)(b)(ii)
19. These items amend subsection 93(2) to make clear that for the purposes of Part 3 of
Chapter 3, an organisation is taken to have been de-registered under Part 2 or a predecessor
law in connection with the formation of an amalgamated organisation if the de-registration
occurred in connection with the formation of:
the amalgamated organisation (including that organisation as it existed before any
subsequent amalgamation under Part 2 or a predecessor law (paragraph 93(2)(a)); or
another organisation that was subsequently de-registered under Part 2 or a predecessor
law in connection with the formation of the amalgamated organisation or an
organisation that, through one or more previous applications of this section, was taken
to have been de-registered under Part 2 or a predecessor law in connection with the
formation of an amalgamated organisation (paragraph 93(2)(b)).
20. These amendments ensure that earlier de-registrations that occurred in connection
with the formation of earlier organisations that were themselves de-registered upon
amalgamation where there were successive amalgamations leading to the existing
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amalgamated organisation are captured through the inclusion of the reference to predecessor
law.
Item 17 - at the end of section 93
21. This item inserts new subsections 93(3) and (4).
22. New subsection 93(3) provides that for the purposes of subsection 93(2), a reference
to an organisation is taken to include a reference to an organisation within the meaning of a
predecessor law.
23. New subsection 93(4) provides that for the purposes of Part 3 of Chapter 3 of the Act,
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 of Chapter 3 of the Act, or a predecessor law.
Item 18 - subsection 94(1)
24. This item omits the term 'postal' from subsection 94(1). Under section 94, a
designated official will be able to conduct a secret ballot as either a postal ballot or in a form
other than a postal ballot, for example, as an attendance ballot.
Item 19 - paragraph 94(1)(a)
25. This item provides that an application for secret ballot on the question of withdrawal
from an amalgamated organisation may be made by a constituent part of an amalgamated
organisation, if the constituent part became a part of the amalgamated organisation as a result
of an amalgamation under Part 2 or a predecessor law.
Item 20 - after section 94
94A Accepting applications for ballots more than 5 years after amalgamation
26. Item 20 inserts new section 94A which provides that the FWC may accept
applications for ballots more than 5 years after the amalgamation and sets out the matters the
FWC must consider in deciding whether it is appropriate to accept the application.
27. New subsection 94A(1) provides that despite paragraph 94(1)(c), which sets out a five
year time limit after amalgamation within which an application may be made, the FWC may
accept an application made under s 94 if the FWC is satisfied that, having regard to the
matters set out in subsection 94A(2), it is appropriate to accept the application.
28. New subsection 94A(2) sets out an exhaustive list of matters the FWC must consider
for the purposes of assessing whether it is appropriate to accept the application. These matter
are:
whether the amalgamated organisation has a record of not complying with workplace
or safety laws and any contribution of the constituent part to that record (paragraph
94A(2)(a)); and
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the likely capacity, of the organisation that that constituent part is to be registered as
when the withdrawal from amalgamation takes effect, to promote and protect the
economic and social interests of its members (paragraph 94A(2)(b)).
29. To aid the reader, a new note to paragraph 94A(2)(a) explains that a workplace or
safety law is defined in subsection 93(1).
30. Matters that would go to informing the FWC as to whether an amalgamated
organisation has a record of not complying with workplace or safety laws within the meaning
of paragraph 94A(2)(a) include the presence of any of the following:
findings by a court of contraventions of relevant civil penalty or civil remedy
provisions of workplace and safety laws;
findings by a court of criminal offence against provisions of workplace and safety
laws; and
findings by a court or tribunal in relation to the taking of industrial action (other than
protected industrial action).
31. In determining for the purposes of paragraph 94A(2)(b), whether a constituent part
has the capacity to promote and protect the economic and social interests of its members
should it withdraw from the amalgamated organisation, the FWC could, for example, have
regard to:
any statement that describes how the constituent part intends to operate on behalf of
its members for their benefit; and
any demonostrated ability of the part to influence, advocate and promote the
wellbeing of its members.
32. This is a forward looking consideration that does not require the FWC to assess the
relative capacity of the constituent part to relevantly promote and protect its members moving
forward, as compared to when it was part of the amalgamated organisation.
33. New subsection 94A(3) provides that if the FWC considers that an amalgamated
organisation has a record of not complying with workplace or safety laws but the constituent
part has not contributed to that record, then the FWC must decide that it is appropriate to
accept the application. It is not necessary for both of the matters listed in new subsection
94A(2) to be present for the FWC to determine to accept the application. It is possible for the
FWC in the exercise of its discretion, to determine that is is appropriate to accept the
application for ballot, when only one of the matters listed in new paragraphs 94A(2)(a) - (b)
are present.
34. New subsection 94A(4) provides submissions in relation to matters mentioned in
subsection 94A(2) may only be made by:
the applicant or applicants, or any person who could have made an application under
subsection 94(3) in relation to the proposed withdrawal (paragraph 94(4)(a));
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the amalgamated organisation from which the constituent part is seeking to withdraw
(paragraph 94(4)(b));
the Commissioner (paragraph 94(4)(c)).
Item 21 - after section 95
95A Proposed names and rules
35. This item inserts a new section 95A in relation to the proposed names and rules of the
new organisation and the amalgamated organisation.
36. New subsection 95A(1) requires an application for withdrawal under section 94(1) to
also be accompanied by:
a statement of the name and a copy of the rules proposed for the organisation (the
new organisation) that the constituent part is to be registered as when the withdrawal
from amalgamation takes effect (paragraph 95A(1)(a)); and
a statement of the name and a copy of the alterations of the rules proposed for the
amalgamated organisation when the withdrawal from amalgamation takes effect
(paragraph 95A(1)(b)).
37. New subsection 95A(2) requires that the name of the new organisation must not be
the same as, or so similar to, the name of the amalgamated organisation, or to the name of
any other organisation, as to be likely to cause confusion.
38. New subsection 95A(3) requires the name proposed for the amalgamated organisation
to reflect the withdrawal of the constituent part.
39. New subsection 95A(4) requires the eligibility rules of the new organisation to:
as far as practical, reflect the application of the eligibility rules of the amalgamated
organisation in relation to the constituent part immediately before the application was
made (paragraph 95A(4)(a)); and
not have the effect of making a class of individuals eligible for membership of the
new organisation if that class would not have been eligible for membership of the
constituent part immediately before the application was made (paragraph 95A(4)(b)).
40. New subsection 95A(5) requires that the proposed alteration of the eligibility rules of
the amalgamated organisation must, as far as practical, avoid an overlap with the eligibility
rules of the new organisation.
41. New subsection 95A(6) makes clear that whether the eligibility rules have the effect
required by subsections 95A(4) and (5) can be determined by looking at the organisational
and administrative arrangements for the amalgamated organisation before the application was
made.
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42. The purpose of the above provisions is to ensure that as far as practical, the eligibility
rules for the newly registered organisation and the amalgamated organisation reflect the
status quo applying immediately before withdrawal, meaning that members that are
associated with particular parts of the amalgamated organisation remain able to be
represented by that part following the withdrawal if they choose. Consideration of internal
organisational and administrative arrangements can be used to demarcate coverage, where the
rules are not explicit in this regard.
43. New subsection 95A(7) provides that if the applicant has insufficient information to
prepare the statement and alterations mentioned in paragraph 95A(1)(b), the applicant may
request the General Manager or Commissioner:
give the applicant all information, as far as it is relevant to the preparation of the
statement and alterations, in their possession (paragraph 95A(7)(a)); or
direct the amalgamated organisation to give the applicant all information in the
possession of the organisation that may be relevant to the preparation of those
documents (paragraph 95A(7)(b)).
44. New subsection 95A(8) provides that the General Manager or Commissioner may
provide the information requested by the applicant under new subsection 95A(7)), or direct
the amalgamated organisation to provide that information.
45. New subsection 95A(9) provides that the amalgamated organisation must comply
with a direction of the General Manager or Commissioner under subsection 95A(8). This is a
civil remedy provision. The maximum penalty of 100 penalty units is commensurate with the
existing penalty under subsection 95(3C) for failing to comply with a direction of the General
Manager or Commissioner to provide information required to prepare an outline under
section 95. A penalty under this provision can only be ordered against the amalgamated
organisation who fails to provide the information directed. This provision ensures that the
application process is not frustrated by the amalgamated organisation by its refusal to provide
information that the constituent part requires in order to be able to make an application for a
ballot to be held.
46. New subsection 95A(10) provides that the FWC may allow statements of name or
rules or alteration of rules to be amended by whoever files the application with the FWC.
47. New subsection 95A(11) provides that the FWC must order the making of any
amendments the FWC considers are needed if the FWC is not satisfied that the proposed
name complies with subsections 95A(2) or (3), or that the proposed rules or alterations of
rules comply with subsections 95A(4) or (5), to ensure compliance with those subsections.
Item 22 - subsection 100(1)
48. This item removes the term 'postal' to allow the FWC the flexibility to order the
secret ballot be held as either a postal ballot or in a form other than a postal ballot, for
example, as an attendance ballot.
Item 23 - after paragraph 100(1)(b)
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49. This item amends section 100 to insert new paragraph 100(1)(ba). Section 100
requires the FWC to order a secret ballot be held of constituent members if it is satisfied of
the specified matters. Paragraph 100(1)(ba) inserts the additional requirement that the FWC is
satisfied that the material accompanying the application as required by section 95A satisfies
the requirements imposed by that section.
Item 24 - at the end of section 100
50. This item inserts new subsection 100(4) to provide that, if the FWC orders that a
ballot be held, it may accept undertakings from the applicant or applicants, or the
amalgamated organisation, that the FWC considers appropriate to avoid demarcation disputes
that might otherwise arise from an overlap between:
the eligibility rules proposed for the organisation that the constituent part is to be
registered as after the withdrawal takes effect (paragraph 100(4)(a)); and
the eligibility rules of the amalgamated organisation as proposed to be altered
(paragraph 100(4)(b)).
51. To aid the reader, a new note to subsection 100(4) directs the reader to section 110B,
which provides for when undertakings of the applicant are to take effect.
52. This subsection is intended to assist applicants and amalgamated organisations to
work together to avoid demarcation disputes that may otherwise arise as a result of the
withdrawal.
53. The FWC may only accept undertakings under this subsection that it considers to be
appropriate to avoid demarcation disputes.
Item 25 - before subsection 102(1)
Item 27 - before subsection 102(2)
54. These items are minor technical amendments to include new headings for subsections
102(1) and (2).
Item 26 - after subsection 102(1)
55. This item inserts new subsection 102(1A) that provides that despite subsection 102(1)
which requires that ballots are to be conducted by the AEC in accordance with the regulations
and at the expense of the Commonwealth, if:
an exemption is in force under section 186 (Commissioner may permit organisation or
branch to conduct its elections for office) in relation to elections for the constituent
part, or any identifiable part of the constituent part, of the amalgamated organisation
(paragraph 102(1A)(a)); and
the applicant or applicants under section 94 apply to the FWC for the purposes of this
subsection (paragraph 102(1A)(b)),
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the FWC may, in making an order under section 100 that a ballot be held, allow the ballot to
be conducted by an officer of the constituent part (the designated official), with the expenses
of conducting the ballot to be borne by the constituent part.
56. New subsection 102(1B) provides that if the FWC makes an order under subsection
102(1A), it may make any other orders it considers are needed for the conduct of the ballot.
57. New subsection 102(1C) provides a ballot conducted by a designated official must be
conducted in accordance with the regulations.
Item 28 - subsection 102(2)
58. This item amends the chapeau in subsection 102(2) to clarify that the requirements in
subsection 102(2) only apply in the case of postal ballots. This is a minor, consequential
amendment.
Item 29 - after paragraph 102(2)(a)
59. This item inserts new paragraph 102(2)(aa) to require the ballot paper sent to the
members of the constituent part of an amalgamated organisation seeking to withdraw must
also be accompanied by a copy of the material required by section 95A.
Item 30 - after paragraph 102(2)(c)
60. This item inserts a new paragraph 102(2)(ca) to require the ballot paper sent to the
members of the constituent part of an amalgamated organisation seeking to withdraw must
also be accompanied by a copy of any undertakings accepted by the FWC as mentioned in
subsection 100(4).
Item 31 - subsection 102(3)
61. This item clarifies that the requirements in section 102(3) only apply in relation to any
postal ballots. Subsection 102(3) requires that for postal ballots, the ballot paper must be
returned in the declaration envelope provided and the declaration envelope must be in another
envelope that is in the form prescribed by the regulations.
Item 32 - subsection 102(3)
62. This item includes the 'designated official' in the chapeau in subsection 102(3) to
clarify that the requirement to return the ballot paper applies in relation to the AEC or the
designated official, as the case should be.
Item 33 - at the end of section 102
Ballots other than postal ballots
63. This item inserts a new subsection 102(4) that provides for a regulation making power
in relation to ballots other than postal ballots.
64. New subsection 102(4) provides that the regulations may make provision in relation
to ensuring that the constituent members of a constituent part of an amalgamated organisation
are given, within a reasonable period before voting in a ballot, in connection with the
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proposal for the constituent part to withdraw from the amalgamated organisation, the material
mentioned in paragraphs 102(2)(a) to (ca). The inclusion of a regulation making power is
consistent with the scheme of the part that delegates much of the machinery of how ballots
are to be conducted to the regulations. Any regulation made under this power would be
subject to disallowance as set out in the Legislation Act 2003.
Item 34 - section 103 (heading)
65. This amendment is a minor, consequential amendment to item 26. This amendment
clarifies that the section applies to both electoral officials and designated officials.
Item 35 - before subsection 103(1)
66. This item includes a new heading for subsection 103(1). This amendment is a minor,
consequential amendment to item 26. The new heading clarifies that subsection 103(1)
applies in relation to electoral officials, as distinct from designated officials.
Item 36 - after subsection 103(1)
67. This item inserts a new subsection 103(1A), which requires an officer or employee of
an amalgamated organisation to give information to the designated official conducting the
ballot.
68. New subsection (1A) provides that a designated official may, if:
it is reasonably necessary for the purposes of the ballot (paragraph 103(1A)(a)); and
the designated official is authorised under this section for the purposes of the ballot by
the FWC (paragraph 103(1A)(b));
require by written notice an officer or employee of the amalgamated organisation concerned
or of a branch of the organisation:
to give the designated official within 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 officer or employee (paragraph 103(1A)(c)); and
to produce or make available to the designated official, at a reasonable time (not less
than 7 days after the notice is given) and place specified in the notice, any documents
in the custody or under the control of the officer or employee, or to which the officer
or employee has access (paragraph 103(1A)(d)).
69. New subsection 103(1B) provides that where an officer or employee of an
organisation fails to comply with a requirement made under subsection (1A), the designated
official may apply to the FWC for an order directing the officer or employee to comply with
the requirement.
70. New subsection 103(1C) states the FWC may make the order if the FWC is satisfied
that the requirement is reasonably necessary for the purposes of the ballot.
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71. A new heading 'Offence' is included for subsections 103(2) to (4).
Item 37 - at the end of subsection 103(2)
72. This item provides that an officer or employee of an amalgamated organisation or
branch of the organisation commits an offence if the officer or employee fails to comply with
an order made under subsection (1C).
Item 38 - before subsection 103(5)
Item 39 - before subsection 103(7)
73. These item are technical amendments to add a new heading for subsection 103(5) and
subsection 103(7).
Item 40 - subsection 103(7)
74. This item amends subsection 103(7) to provide that if any information or document
specified in a notice under subsections 103(1) or 103(1A) is kept in electronic form, the
electoral official or the designated official may require the information or document to be
made available in that form.
Item 41 - subsection 104(1)
75. This item is a consequential amendment to include requirements made under
subsection 103(1A) or an order under subsection 103(1C) are also included in the declaration
that the secretary or other prescribed officer of an organisation must make in accordance with
subsection 104(2).
Item 42 - after subsection 104(1)
76. This item inserts new subsection 104(1A) which provides that the secretary or
prescribed officer is not required to make a declaration under subsection 104(1) for an order
under subsection 103(1C) if a declaration was made for the corresponding requirement under
subsection 103(1A).
77. The purpose of this amendment is to reduce replication in the process outlined in
section 103.
Item 43 - subsection 106(1)
Item 44 - paragraph 106(1)(c)
Item 45 - subsections 106(2) and (3)
78. These items provide that the requirements for certificates showing particulars of the
ballot apply to a designated official as well as an electoral official.
79. Item 43 provides that the designated official conducting the ballot must also prepare
and sign a certificate showing particulars of the ballot. Item 44 is a minor technical
amendment.
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80. Item 45 ensures that the designated official must immediately give the certificate to
the parties listed in subsection 106(2) and make a copy of the certificate available to each
applicant under paragraph 94(3)(a).
Item 46 - section 107 (heading)
Item 47 - subsection 107(1)
Item 48 - subsection 107(2)
Item 49 - subsection 107(4)
81. These items provides that the requirements for postal ballot reports apply to
designated officials as well as the AEC, depending on who conducts the ballot.
82. Item 46 is a technical amendment to amend the heading for section 107.
83. Item 47 provides that, after completion of the ballot, the AEC or designated official
must give a report on the conduct of the ballot to the parties listed in subsection 102(1).
84. Item 48 provides that the AEC or designated official must make the report on the
conduct of the ballot available in any way that it considers appropriate to each applicant
under paragraph 94(3)(a).
85. Item 49 is a consequential amendment to ensure that the requirements applying to the
AEC in subsection 107(4) to include in the post-ballot report any unduly large proportion of
out of date member's addresses and workplace addresses also apply to a designated official,
if a designated official conducted the ballot.
Item 50 - paragraph 109(2)(a)
86. This item repeals and replaces paragraph 109(2)(a). New paragraph 109(2)(a) requires
that in making an order under paragraph 109(1)(b), the Federal Court must have regard to the
assets and liabilities of the constituent part or organisation before the de-registration if the
constituent part, or an organisation of which the constituent part was a State or Territory
branch, was de-registered in connection with the formation of the amalgamated organisation.
This amendment is consequential upon the amended definition of constituent part that
recognises that a constituent part need not be de-registered in connection with the formation
of the amalgamated organisation.
Item 51 - paragraph 109(2)(b)
87. This item makes clear that paragraph 109(2)(b) only applies if paragraph 109(2)(a)
applies.
Item 52 - after paragraph 109(2)(b)
88. This item inserts a new paragraph 109(2)(ba) which provides that in making an order
under paragraph 109(1)(b), the Court must have regard to any rules, arrangements, practices
or understandings of the amalgamated organisation under which:
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assets of the amalgamated organisation have been held for the benefit of the
constituent part (subparagraph 109(2)(ba)(i)), or
liabilities of the amalgamated organisation have been the responsibility of the
constituent part (subparagraph 109(2)(ba)(ii)).
89. This provision will ensure that the Court can take into account the status quo in
circumstances where a constituent part such as a branch or division substantially controls or
is responsible for certain assets or liabilities, despite those assets or liabilities being owned, in
name, by the amalgamated organisation to which the constituent part belongs. This is
intended to ensure an appropriate apportioning of assets and liabilities following a withdrawal
from amalgamation.
Item 53 - after section 110
90. This item inserts new sections 110A and 110B.
110A Rules and alterations take effect
91. New section 110A provides that the day the rules and alterations take effect is the day
determined under paragraph 109(1)(a) for:
the rules of the newly registered organisation that were proposed for the purposes of
section 95A (paragraph 110A(a)), and
the alterations of the rules of the amalgamated organisation that were proposed for the
purposes of section 95A (paragraph 110A(b)).
110B Undertakings of applicant take effect as undertakings of newly registered organisation
92. New section 110B provides that an undertaking accepted from the applicant or
applicants under subsection 100(4) is taken, from the day determined to be the withdrawal
day under paragraph 109(1)(a), to be an undertaking accepted from the newly registered
organisation.
93. Section 110B is a deeming provision, ensuring that undertakings given by an
applicant during the application process are binding on the constituent part once it withdraws
and is registered as a new organisation with a separate legal identity.
94. A note to the provision explains that at the time the applicant's or applicants'
undertaking is accepted under subsection 100(4), the newly registered organisation has not
come into existence. The amalgamated organisation continues in existence and continues to
be bound by its undertakings on the terms they are accepted by the FWC. As such, no
deeming of the specific date upon which the amalgamated organisations' undertakings are
taken to have been accepted is required here.
Item 54 - section 111 (heading)
95. This amendment is consequential to items 55 and 56.
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Item 55 - paragraph 111(3)(b) and (c)
96. This item repeals paragraphs 111(3)(b) and (c) to and replaces them with new
paragraph 111(3)(b) to provide that the written statement to be provided under subsection
111(2) must also, in addition to other requirements in subsection 111(3), inform the person
that the person is now a member of the newly registered organisation (paragraph 111(3)(b)).
This item is consequential to the amendments made by item 56 and does not prevent a person
who no longer wishes to be represented by the newly registered organisation, from resigning
their membership and, where eligibility rules permit, becoming a member of another
organisation.
Item 56 - subsections 111(4) to (11)
97. This item repeals subsections 111(4) to (11) and replaces them with new subsection
111(4).
98. New subsection 111(4) provides that a person referred to in subsection 111(2):
ceases to be a member of the amalgamated organisation, with effect from the end of
the day before the newly registered organisation is registered under section 110
(paragraph 111(4)(a)), and
becomes without payment of entrance fee, a member of the newly registered
organisation with effect from the start of the day the newly registered organisation is
registered under section 110 (paragraph 111(4)(b)).
99. This reflects that the membership of the former constituent part voted by majority to
withdraw from the amalgamated organisation and form a newly registered organisation, is
transferred to the newly registered organisation.
100. Should a person no longer wish to be represented by the newly registered
organisation, that person may resign their membership and, where eligibility rules permit, be
represented by another organisation.
Item 57 - subsection 123(2)
101. This item repeals and replaces subsection 123(2). New subsection 123(2) requires the
rules of a newly registered organisation to not permit a person to hold office after the day that
would have been the person's last day of term in the constituent office if the withdrawal had
not occurred.
Item 58 - after paragraph 343B(2)(b)
102. This item inserts new paragraph 343B(2)(ba) to provide that the powers of the
General Manager and Commissioner provided for in subsections 95A(7), (8) and (9) to
require the production of information in relation to the proposed name and rules are non-
delegable.
103. This is consistent with the fact that the powers of the General Manager and
Commissioner provided for under subsections 95(3A), (3B) and (3C) relating to the
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production of information relevant to the preparation of the outline, on which those
provisions are modelled, are also non-delegable under paragraph 343B(2)(b).
Item 59 - application of amendments
104. This item is an application provision and provides that the amendments made by this
Schedule apply in relation to an application for a ballot for withdrawal from amalgamation
made under section 94 of the Act after this Schedule commences. This application provision
does not otherwise impact the relevant timeframes that must be considered by the FWC under
sections 94 or 94A.
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