Commonwealth: Fair Work (Registered Organisations) Act 2009 (Cth)

Fair Work (Registered Organisations) Act 2009 No. 86, 1988 Compilation No. 88 Compilation date: 23 August 2024 Includes amendments: Act No. 74, 2024 Registered: 23 August 2024 About this compilation This compilation This is a compilation of the Fair Work (Registered Organisations) Act 2009 that shows the text of the law as amended and in force on 23 August 2024 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents Chapter 1—Preliminary 1 Short title 2 Commencement 5 Parliament's intention in enacting this Act 5A Act binds Crown 5B Schedule 1 has effect 5C Schedule 2 has effect 5D Schedule 3 has effect 6 Definitions 7 Relationships 9 Meaning of office 9A Meaning of federal counterpart 9B Meaning of related party 10 Forging and uttering 11 Actions and opinions of AEC 12 Membership of organisations 13 Additional function of the FWC 15 Disapplication of Part 2.5 of Criminal Code 16 Contravening an offence provision or a civil penalty provision Chapter 2—Registration and cancellation of registration Part 1—Simplified outline of Chapter 17 Simplified outline Part 2—Registration Division 1—Types of associations that may apply for registration 18 Employer and employee associations may apply 18A Federally registrable employer associations 18B Federally registrable employee associations 18C Federally registrable enterprise associations 18D Constitutional validity Division 2—Registration criteria 19 Criteria for registration of associations other than enterprise associations 20 Criteria for registration of enterprise associations Division 3—Prohibited conduct in relation to formation or registration of employee associations 21 Prohibited conduct—employers 22 Prohibited conduct—organisations 23 Powers of Federal Court in relation to prohibited conduct 24 Certain actions considered to be done by organisation or employer Division 4—Registration process 25 Applicant for registration may change its name or alter its rules 26 Registration 26A Validation of registration 27 Incorporation Part 3—Cancellation of registration 28 Application for cancellation of registration 29 Orders where cancellation of registration deferred 30 Cancellation of registration on technical grounds etc. 31 Cancellation to be recorded 32 Consequences of cancellation of registration Part 4—FWC's powers under this Chapter 33 Powers exercisable by President, a Vice President or a Deputy President Chapter 3—Amalgamation and withdrawal from amalgamation Part 1—Simplified outline of Chapter 34 Simplified outline Part 2—Amalgamation of organisations Division 1—General 35 Definitions 36 Procedure to be followed for proposed amalgamation etc. 37 Exercise of the FWC's powers under this Part Division 2—Preliminary matters 38 Federations 39 Use of resources to support proposed amalgamation Division 3—Commencement of amalgamation procedure 40 Scheme for amalgamation 41 Alternative scheme for amalgamation 42 Approval by committee of management 43 Community of interest declaration 44 Application for approval for submission of amalgamation to ballot 45 Holding office after amalgamation 46 Application for exemption from ballot 47 Application for ballot not conducted under section 65 48 Lodging "yes" case Division 4—Role of AEC 49 Ballots to be conducted by AEC 50 Notification of AEC 51 Providing information etc. to electoral officials 52 Declaration by secretary etc. of organisation Division 5—Procedure for approval of amalgamation 53 Fixing hearing in relation to amalgamation etc. 54 Submissions at amalgamation hearings 55 Approval for submission to ballot of amalgamation not involving extension of eligibility rules etc. 56 Objections in relation to amalgamation involving extension of eligibility rules etc. 57 Approval for submission to ballot of amalgamation involving extension of eligibility rules etc. 58 Fixing commencing and closing days of ballot 59 Roll of voters for ballot 60 "Yes" case and "no" case for amalgamation 61 Alteration and amendment of scheme 62 Outline of scheme for amalgamation 63 Exemption from ballot 64 Approval for ballot not conducted under section 65 65 Secret postal ballot of members 66 Determination of approval of amalgamation by members 67 Further ballot if amalgamation not approved 68 Post‑ballot report by AEC 69 Inquiries into irregularities 70 Approval of amalgamation 71 Expenses of ballot 72 Offences in relation to ballot Division 6—Amalgamation taking effect 73 Action to be taken after ballot 74 Assets and liabilities of de‑registered organisation become assets and liabilities of amalgamated organisation 75 Resignation from membership 76 Effect of amalgamation on modern awards, orders and enterprise agreements 77 Effect of amalgamation on agreement under section 151 78 Instruments 79 Pending proceedings 80 Division applies despite laws and agreements prohibiting transfer etc. 81 Amalgamated organisation to take steps necessary to carry out amalgamation 82 Certificates in relation to land and interests in land 83 Certificates in relation to charges 84 Certificates in relation to shares etc. 85 Certificates in relation to other assets 86 Other matters 87 Federal Court may resolve difficulties Division 7—Validation 88 Validation of certain acts done in good faith 89 Validation of certain acts after 4 years 90 Orders affecting application of section 88 or 89 91 Federal Court may make orders in relation to consequences of invalidity Part 3—Withdrawal from amalgamations Division 1—General 92 Object of Part 93 Definitions etc. Division 2—Ballots for withdrawal from amalgamated organisations 94 Applications to the FWC for ballots 95 Outline of proposed withdrawal 96 Filing the "yes" case 97 Filing the "no" case 98 Provisions relating to outlines and statements of "yes" and "no" cases 99 Notifying of applications for ballots 100 Orders for ballots 101 Financial members only eligible to vote 102 Conduct of ballots 103 Providing information etc. to electoral officials 104 Declaration by secretary etc. of organisation 105 Offences in relation to ballots 106 Certificate showing particulars of the ballot 107 Post‑ballot report by AEC 108 Inquiries into irregularities 108A Powers of the FWC to be exercised by President or Full Bench Division 3—Giving effect to ballots 109 Determining the day of withdrawal 110 Registration of constituent part 111 Choice of organisation following withdrawal of separately identifiable constituent part 112 Members of amalgamated organisation may join newly registered organisation 113 Orders of the FWC, modern awards etc. made before withdrawal 113A Enterprise agreements made after withdrawal 114 Effect of withdrawal on agreement under section 151 115 Instruments 116 Pending proceedings 117 Division applies despite laws and agreements prohibiting transfer etc. 118 Amalgamated organisation, constituent part and newly registered organisation to take necessary steps 119 Certificates in relation to land and interests in land 120 Certificates in relation to charges 121 Certificates in relation to shares etc. 122 Certificates in relation to other assets 123 Holding office after withdrawal 124 Other matters 125 Federal Court may resolve difficulties Division 4—Validation 126 Validation of certain acts done in good faith 127 Validation of certain acts after 4 years 128 Orders affecting application of section 126 or 127 129 Federal Court may make orders in relation to consequences of invalidity Division 5—Miscellaneous 130 Certain actions etc. not to constitute breach of rules of amalgamated organisation 131 Amalgamated organisation not to penalise members etc. Chapter 4—Representation orders Part 1—Simplified outline 132 Simplified outline Part 2—Representation orders 133 Orders about representation rights of organisations of employees 134 Preconditions for making of orders 135 Factors to be taken into account by the FWC 136 Order may be subject to limits 137 Organisation must comply with order Part 3—Representation orders for workplace groups 137A Orders about representation rights of organisations of employees 137B Factors to be taken into account by the FWC 137C Submissions by peak councils 137D Order may be subject to limits 137E Organisation must comply with order Part 4—Miscellaneous 137F FWC may make orders reflecting State representation orders 138 Exercise of the FWC's powers under this Chapter 138A Representation rights of former State‑registered associations Chapter 5—Rules of organisations Part 1—Simplified outline of Chapter 139 Simplified outline Part 2—Rules of organisations Division 1—General 140 Organisations to have rules 141 Rules of organisations 142 General requirements for rules 142A Model rules for policies relating to expenditure Division 2—Rules relating to elections for office 143 Rules to provide for elections for offices 144 Rules to provide for elections for office by secret postal ballot 145 Rules to provide for terms of office 146 Rules may provide for filling of casual vacancies 147 Model rules for conduct of elections Division 3—Rules relating to conduct of officers and employees 148 Model rules about conduct of officers and employees Division 4—Other rules Subdivision A—Loans, grants and donations 149 Rules to provide conditions for loans, grants and donations by organisations Subdivision B—Agreements between organisations and State unions 150 Definitions 151 Membership agreements 152 Assets and liabilities agreements 153 Party to section 152 agreement may apply to Federal Court for orders 154 Termination of section 152 agreement Subdivision BA—Branches of organisations 154A Branch autonomy 154B Branch funds Subdivision C—Miscellaneous 155 Exercise of the FWC's powers under this Division Division 5—Alteration of rules and evidence of rules 156 General Manager may determine alterations of rules 157 FWC may determine alteration of rules where there has been a breach of an undertaking 158 Change of name or alteration of eligibility rules of organisation 158A Alteration of eligibility rules of organisation by General Manager 159 Alteration of other rules of organisation 160 Certain alterations of rules to be recorded 161 Evidence of rules 162 Powers of the FWC Part 3—Validity and performance of rules etc 163 Rules contravening section 142 164 Directions for performance of rules 164A Directions to rectify breach of rule of organisation 164B Orders under sections 164 and 164A Chapter 6—Membership of organisations Part 1—Simplified outline of Chapter 165 Simplified outline Part 2—Entitlement to membership 166 Entitlement to become and to remain a member 167 Federal Court may declare on person's entitlement to membership 168 Application for membership of organisation by person treated as having been a member 169 Request by member for statement of membership 170 Rectification of register of members Part 3—Termination of membership 171 Federal Court may order that persons cease to be members of organisations 171A Cessation of membership if member is not an employee etc. 172 Non‑financial members to be removed from the register 173 No entrance fee if person re‑joins within 6 months 174 Resignation from membership Part 4—False information, disputes and arrears of dues 175 False representation as to membership of organisation 176 False representation about resignation from organisation 177 Disputes between organisations and members 178 Recovery of arrears 179 Liability for arrears Part 5—Conscientious objection to membership 180 Conscientious objection to membership of organisations Chapter 7—Democratic control Part 1—Simplified outline of Chapter 181 Simplified outline Part 2—Conduct of elections for office and other positions 182 Conduct by AEC 183 Application for organisation or branch to conduct its elections for office 184 Objections to application to conduct elections for office 185 Threats etc. in relation to section 184 objections 186 General Manager may permit organisation or branch to conduct its elections for office 187 Organisation may ask AEC to conduct elections for positions other than offices 188 Declaration envelopes etc. to be used for postal ballots 189 General Manager to arrange for conduct of elections 190 Organisation or branch must not assist one candidate over another 191 Organisation to provide returning officer with copy of register 192 Declaration by secretary etc. of organisation 193 Provisions applicable to elections conducted by AEC 194 Hindering or obstructing electoral official or other person 195 Improper interference with election process 196 Death of candidate 197 Post‑election report by AEC 198 Organisation to respond to adverse report on rules 199 Ballot papers etc. to be preserved Part 3—Inquiries into elections for office 200 Application for inquiry 201 Instituting of inquiry 202 Federal Court may authorise General Manager to take certain action 203 Identity cards 204 Interim orders 205 Procedure at hearing 206 Action by Federal Court 207 General Manager to make arrangements for conduct of elections etc. 208 Enforcement of orders 209 Validity of certain acts etc. where election declared void Part 4—Disqualification from office Division 1—Simplified outline of Part 210 Simplified outline Division 2—Persons who have been convicted of a prescribed offence 211 Simplified outline of Division 212 Meaning of prescribed offence 213 Meaning of convicted of a prescribed offence 213A Meaning of exclusion period and reduced exclusion period 214 Certificate of registrar etc. is evidence of facts 215 Certain persons disqualified from holding office in organisations 216 Application for leave to hold office in organisations by prospective candidate for office 217 Application for leave to hold office in organisations by office holder 218 Federal Court to have regard to certain matters 219 Action by Federal Court 220 Part not to affect spent convictions scheme Chapter 8—Records and accounts Part 1—Simplified outline of Chapter 229 Simplified outline Part 2—Records to be kept and lodged by organisations 230 Records to be kept and lodged by organisations 231 Certain records to be held for 7 years 232 Offence to interfere with register or copy 233 Obligation to lodge information with the FWC 234 Storage of records 235 General Manager may authorise access to certain records 236 General Manager may direct organisation to deliver copy of records 237 Organisations to notify particulars of loans, grants and donations Part 3—Accounts and audit Division 1—Preliminary 238 Simplified outline 239 Part only applies to financial years starting after registration 240 Financial years—change in financial year 241 Exemptions from certain Australian Accounting Standards Division 2—Reporting units 242 What is a reporting unit? 243 Designated officers 244 Members, staff and journals etc. of reporting units 245 Determination of reporting units 246 Determination of reporting units—application by organisation 247 Determination of reporting units—General Manager initiative 248 Determination of reporting units—years certificate applies to 249 Determination of reporting units—revocation of certificates 250 Determination of reporting units—rule alterations 251 Determination of reporting units—later certificate revokes earlier certificate Division 3—Accounting obligations Subdivision A—General obligations 252 Reporting unit to keep proper financial records 253 Reporting unit to prepare general purpose financial report 254 Reporting unit to prepare operating report Subdivision B—Reporting guidelines 255 Reporting guidelines Division 4—Auditors Subdivision A—Registration of auditors 255A Applications may be made for registration as an auditor 255B Registration by General Manager 255C Circumstances in which a person meets educational etc. requirements 255D General Manager must give an opportunity to be heard before refusal and written notice of decision 255E Refusal to grant an application for registration 255F General Manager must give certificate of registration 255G Cancellation and suspension of registration—general 255H Cancellation and suspension of registration—person no longer a registered company auditor 255J Written notice to be given of cancellation or suspension of registration 255K Registered auditors to advise of material changes in circumstance etc. 255L General Manager may request further information 255M Basis of registration 255N Regulations Subdivision B—Audits 256 Auditors of reporting units 256A Limited term to play significant role in audit of a reporting unit 257 Powers and duties of auditors 258 Obstruction etc. of auditors 259 Reporting unit to forward notices etc. to auditor 260 Auditor entitled to attend meetings at which report presented 261 Auditors and other persons to enjoy qualified privilege in certain circumstances 262 Fees and expenses of auditors 263 Removal of auditor 264 Resignation of auditor Division 5—Reporting requirements 265 Copies of full report or concise report to be provided to members 266 Full report to be presented to meetings 267 Comments by committee members not to be false or misleading 268 Reports etc. to be lodged with the FWC Division 6—Reduced reporting requirements for particular reporting units 269 Reporting units with substantial common membership with State registered bodies 270 Organisations with income of less than certain amount 271 Exemption from this Part of certain reporting units Division 7—Members' access to financial records 272 Information to be provided to members or General Manager 273 Order for inspection of financial records 274 Frivolous or vexatious applications 275 Ancillary orders 276 Disclosure of information acquired in inspection 277 Reporting unit or committee of management may allow member to inspect books 278 FWC to be advised of breaches of Part or rules etc. found during inspection 279 Constitution of the FWC Part 4—Access to organisations' books 280 Right of access to organisation's books Chapter 9—Conduct of officers and employees Part 1—Simplified outline of Chapter 281 Simplified outline Part 2—General duties in relation to the financial management of organisations Division 1—Preliminary 282 Simplified outline 283 Part only applies in relation to financial management 284 Meaning of involved Division 2—General duties in relation to the financial management of organisations 285 Care and diligence—civil obligation only 286 Good faith—civil obligations 287 Use of position—civil obligations 288 Use of information—civil obligations 289 Effect of ratification by members 290 Compliance with statutory duties 290A Good faith, use of position and use of information—criminal offences 291 Interaction of sections 285 to 289 and 290A with other laws etc. 292 Reliance on information or advice provided by others 293 Responsibility for actions of other person Part 2A—Disclosure obligations Division 1—Preliminary 293A Simplified outline Division 2—Disclosure obligations and restrictions on taking part in making decisions 293B Disclosure of remuneration paid to officers 293BA Immediate disclosure 293BB Standing disclosure of remuneration 293BC Disclosure of certain remuneration and benefits by organisations and branches 293C Disclosure of material personal interests of officers 293D Officer may give members of committee of management standing notice about an interest 293E Interaction of section 293C and 293D with other laws 293F Restrictions on taking part in making decisions 293G Disclosure of payments made by an organisation or a branch 293H Section 293G—order for alternative disclosure arrangement Division 3—Officer and related party disclosure statements 293J Officer and related party disclosure statements Division 4—Training in relation to financial duties 293K Officers to undertake approved training 293L Approved training 293M General Manager may grant exemption from financial training Part 3—General duties in relation to orders and directions Division 1—Preliminary 294 Simplified outline 295 Meaning of involved 296 Application to officers and employees of branches Division 2—General duties in relation to orders and directions 297 Order or direction applying to organisation—civil obligation 298 Prohibition order or direction applying to organisation—civil obligation 299 Order or direction applying to officer—civil obligation 300 Prohibition order or direction applying to officer—civil obligation 301 Order or direction applying to employee—civil obligation 302 Prohibition order or direction applying to employee—civil obligation 303 Order or direction applying to member of organisation—civil obligation 303A Application of this Division Chapter 10—Compliance and enforcement Part 1—Simplified outline of Chapter 304 Simplified outline Part 2—Civil penalties 305 Civil penalty provisions 306 Pecuniary penalty orders that the Federal Court may make 307 Compensation orders 307A Disqualification orders 308 Other orders 309 Effect of section 307 310 Who may apply for an order 311 Civil proceedings after criminal proceedings 312 Criminal proceedings during civil proceedings 313 Criminal proceedings after civil proceedings 314 Evidence given in proceedings for penalty not admissible in criminal proceedings 315 Relief from liability for contravention of civil penalty provision 316 Power to grant relief Part 3—Infringement notices 316A Basic provisions for infringement notices under Part 5 of the Regulatory Powers Act 316B Infringement officers Part 4—Enforceable undertakings 316C Enforceable undertakings Chapter 11—Miscellaneous Part 1—Simplified outline of Chapter 317 Simplified outline Part 2—Validating provisions for organisations 318 Definition 319 Validation of certain acts done in good faith 320 Validation of certain acts after 4 years 321 Order affecting application of section 319 or 320 322 Federal Court may make orders in relation to consequences of invalidity 323 Federal Court may order reconstitution of branch etc. Part 2A—Administration of the Construction and General Division of the CFMEU and its branches Division 1—Scheme for administration 323A Construction and General Division and its branches are placed under administration 323B Scheme for the administration of the Construction and General Division and its branches 323C Appointment etc. of administrator 323D Variation and revocation of scheme 323E 5 year sunset 323F Scheme etc. has effect despite this Act etc. 323G Actions under scheme 323H Alteration of rules under scheme 323HA Complaints procedure 323J Costs of administration 323K Functions of administrator 323L Provision of assistance to administrator 323M Administrator's remuneration etc. Division 2—Persons removed from office etc. as a result of scheme for administration 323MA Application of this Division 323MB Removed person must not become an officer or employee etc. in organisation without a certificate 323MC Certificate to hold office 323MD Certificate to be employed or engaged by an organisation 323ME Division not to affect spent convictions scheme Division 3—Other matters relating to the administration 323N Administrator not liable to civil proceedings for actions in good faith etc. 323P Anti‑avoidance provision 323Q Involvement in contravention treated in same way as actual contravention 323R Section 604 of the Fair Work Act does not apply to decisions made for the purposes of this Part 323S Compensation for acquisition of property 323T Reporting by administrator Part 3—Financial assistance and costs Division 1—Financial assistance 324 Authorisation of financial assistance 325 Federal Court may certify that application was reasonable 326 Applications under sections 163, 164, 164A and 167 327 Fees for 2 counsel not normally to be paid 328 Powers of Federal Court not affected Division 2—Costs 329 Costs only where proceeding instituted vexatiously etc. Part 3A—Functions of General Manager 329A Functions of the General Manager 329C Minister may require reports 329D Annual report Part 3B—Information sharing 329G When information may be disclosed Part 4—Inquiries and investigations Division 1—Inquiries 330 General Manager may make inquiries Division 2—Investigations 331 General Manager may conduct investigations 332 Investigations arising from auditor's report 333 Investigations arising from request from members 334 Investigations arising from referral under section 278 335 Conduct of investigations 335B Investigations to be completed as soon as practicable Division 3—Questioning on oath or affirmation 335C When this Division applies 335D Requirements made of attendee 335E Questioning to take place in private 335F Attendee's lawyer 335G Record of statements 335H Copies given subject to conditions Division 4—Powers in relation to documents 335K Application for warrant to seize documents 335L Grant of warrant 335M Execution of warrant 335N Powers in relation to documents produced or seized 335P Powers if documents not produced 335Q Power to require person to identify property of an organisation Division 5—Action following investigations 336 Action in relation to reporting units Division 6—Offences 337 Offences in relation to investigation by General Manager 337AA Strict liability offences 337AB Obstructing person acting under this Part 337AC Concealing documents relevant to investigation 337AD Self‑incrimination 337AE Legal professional privilege Division 7—Evidentiary use of certain material 337AF Statements made on oath or affirmation during an investigation—proceedings against attendee 337AG Statements made on oath or affirmation during an investigation—other proceedings 337AH Weight of evidence admitted under section 337AG 337AJ Objection to admission of statements made on oath or affirmation during an investigation 337AK Copies of, or extracts from, certain documents 337AL Material otherwise admissible Division 8—Miscellaneous 337AM Evidence of authority 337AN Application of Evidence Act 337AP Allowances and expenses 337AQ Compliance with Part Part 4A—Protection for whistleblowers Division 1—Protected disclosures 337A Disclosures qualifying for protection under this Part Division 2—Protections 337B Disclosure that qualifies for protection not actionable etc. 337BA What constitutes taking a reprisal 337BB Civil remedies 337BC Costs only if proceedings instituted vexatiously etc. 337BD Civil penalties 337BE Criminal offences 337BF Interaction between civil remedies, civil penalties and criminal offences 337BG Protections have effect despite other Commonwealth laws Division 3—Investigation of protected disclosures 337C Allocation of handling of disclosure 337CA Investigation of disclosure 337CB Time limit for investigations under this Division 337CC Regulations in relation to allocation and investigation 337CD Disclosure to enforcement agencies 337CE Protection of witnesses etc. Division 4—Miscellaneous 337D Reference to this Part 337DA Liability for acts and omissions 337DB Concurrent operation of State and Territory laws 337DC Law relating to legal professional privilege not affected 337DD Other investigative powers etc. not affected Part 4B—Functions and powers of the FWC 337F Powers of inspection 337G Parties to proceedings 337H Kinds of orders 337J Relief not limited to claim 337K Publishing orders Part 5—Jurisdiction of the Federal Court of Australia 338 Conferring jurisdiction on the Federal Court 339 Exclusive jurisdiction 339A Exercising jurisdiction in the Fair Work Division of the Federal Court 340 Exercise of Court's original jurisdiction 341 Reference of proceedings to Full Court 342 Appeal to the Court from certain judgments Part 6—Other 343 Delegation by Minister 343A Delegation by General Manager 344 Conduct by officers, directors, employees or agents 345 Right to participate in ballots 346 Requests by members for information concerning elections and certain ballots 347 Providing copy of rules or list of offices etc. on request by member 348 Certificate as to membership of organisation 349 List of officers to be evidence 350 Unauthorised collection of money 351 No imprisonment in default 351A Minister's entitlement to intervene 352 Jurisdiction of courts limited as to area 353 Public sector employer to act through employing authority 353A Representation in proceedings in the Fair Work Division of the Federal Court and Federal Circuit and Family Court of Australia (Division 2) 354 Proceedings by and against unincorporated clubs 355 Inspection of documents etc. 356 Trade secrets etc. tendered as evidence 357 Application of penalty 358 Enforcement of penalties etc. 359 Regulations Part 7—Complementary registration systems Division 1—Application of this Part 360 Complementary registration systems Division 2—Preliminary 361 Definitions Division 3—Branch rules 362 Branch funds 363 Obligations of the FWC in relation to application under section 158 364 Branch autonomy 365 Organisation may participate in State systems Division 4—Amalgamation of organisation and associated body 366 Organisation and associated body may amalgamate 367 Procedure for amalgamation Division 5—Exercise of the FWC's powers 368 Exercise of the FWC's powers under this Part Schedule 1—Transitionally recognised associations 1 Definitions 2 Application for transitional recognition 3 Application of the Fair Work Act to transitionally recognised associations 4 Representation rights of transitionally recognised associations of employees 5 Cancellation of transitional recognition 6 End of transitional recognition 7 Modification of this Act Schedule 2—Recognised State‑registered associations 1 Recognition of State‑registered associations 2 Application of Fair Work Act to recognised State‑registered associations 3 Cancellation of recognition Schedule 3—Applications for withdrawal from the CFMEU 1 Definitions 2 Joint written notice 3 Application to withdraw from the CFMEU 4 Operation of old Act and old Regulations if joint written notice is given by deadline 5 Operation of old Act and Regulations if joint written notice not given by deadline 6 Alteration of eligibility rules of new organisation and CFMEU under this Act after withdrawal Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history Endnote 5—Miscellaneous An Act relating to registered organisations, and for other purposes Chapter 1—Preliminary 1 Short title This Act may be cited as the Fair Work (Registered Organisations) Act 2009. 2 Commencement This Act commences on a day or days to be fixed by Proclamation. 5 Parliament's intention in enacting this Act (1) It is Parliament's intention in enacting this Act to enhance relations within workplaces between federal system employers and federal system employees and to reduce the adverse effects of industrial disputation. (2) Parliament considers that those relations will be enhanced and those adverse effects will be reduced, if associations of employers and employees are required to meet the standards set out in this Act in order to gain the rights and privileges accorded to associations under this Act and the Fair Work Act. (3) The standards set out in this Act: (a) ensure that employer and employee organisations registered under this Act are representative of and accountable to their members, and are able to operate effectively; and (b) encourage members to participate in the affairs of organisations to which they belong; and (c) encourage the efficient management of organisations and high standards of accountability of organisations to their members; and (d) provide for the democratic functioning and control of organisations; and (e) facilitate the registration of a diverse range of employer and employee organisations. (4) It is also Parliament's intention in enacting this Act to assist employers and employees to promote and protect their economic and social interests through the formation of employer and employee organisations, by providing for the registration of those associations and according rights and privileges to them once registered. (5) Parliament recognises and respects the role of employer and employee organisations in facilitating the operation of the workplace relations system. Note: The Fair Work Act contains many provisions that affect the operation of this Act. For example, provisions of the Fair Work Act deal with some powers and functions of the Fair Work Commission and of the General Manager. Decisions made under this Act may be subject to procedures and rules (for example, about appeals) that are set out in the Fair Work Act. 5A Act binds Crown (1) This Act binds the Crown in each of its capacities. (2) However, this Act does not make the Crown liable to be prosecuted for an offence. 5B Schedule 1 has effect Schedule 1 has effect. Note: Schedule 1 is about transitionally recognised associations. 5C Schedule 2 has effect Schedule 2 has effect. Note: Schedule 2 is about recognised State‑registered associations. 5D Schedule 3 has effect Schedule 3 has effect. Note: Schedule 3 is about applications for withdrawal from the CFMEU. 6 Definitions In this Act, unless the contrary intention appears: administrator means a person appointed under section 323C to be the administrator of a scheme determined under subsection 323B(1). AEC means the Australian Electoral Commission. Note: Section 11 is also relevant to this definition. applies: (a) in relation to a modern award, has the same meaning as in section 47 of the Fair Work Act; and (b) in relation to an enterprise agreement, has the same meaning as in section 52 of the Fair Work Act. auditor, in relation to a reporting unit, means: (a) if an individual holds the position of auditor of the reporting unit under section 256—the individual; or (b) if a firm holds the position of auditor of the reporting unit under section 256—each person who is, from time to time, a member of the firm and a registered auditor; or (c) if a company holds the position of auditor of the reporting unit under section 256—each person who is, from time to time, a director, officer or employee of the company and a registered auditor. Australian Accounting Standards means the accounting standards: (a) issued by the Australian Accounting Standards Board; or (b) issued by CPA Australia and by The Institute of Chartered Accountants in Australia and adopted by the Australian Accounting Standards Board; as in force, or applicable, from time to time, as modified by regulations made for the purpose of this definition. Australian Auditing Standards means the auditing and assurance standards issued by CPA Australia and The Institute of Chartered Accountants in Australia as in force, or applicable, from time to time. authorised official means any of the following: (b) the General Manager; (c) an FWC Member; (e) the Fair Work Ombudsman (within the meaning of the Fair Work Act). breach includes non‑observance. CFMEU has the meaning given by clause 1 of Schedule 3. child: without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975. civil penalty provision has the meaning given by subsection 305(2). collective body means: (a) in relation to an organisation—the committee of management or a conference, council, committee, panel or other body of or within the organisation; and (b) in relation to a branch of an organisation—the committee of management or a conference, council, committee, panel or other body of or within the branch. collegiate electoral system, in relation to an election for an office in an organisation, means a method of election comprising a first stage, at which persons are elected to a number of offices by a direct voting system, and a subsequent stage or subsequent stages at which persons are elected by and from a body of persons consisting only of: (a) persons elected at the last preceding stage; or (b) persons elected at the last preceding stage and other persons (being in number not more than 15% of the number of persons comprising the body) holding offices in the organisation (including the office to which the election relates), not including any person holding such an office merely because of having filled a casual vacancy in the office within the last 12 months, or the last quarter, of the term of the office. committee of management: (a) in relation to an organisation, association or branch of an organisation or association, means the group or body of persons (however described) that manages the affairs of the organisation, association or branch; and (b) in relation to a reporting unit, means the group or body of persons (however described) that, under the rules of the reporting unit, is responsible for undertaking the functions necessary to enable the reporting unit to comply with Part 3 of Chapter 8. Commonwealth authority means: (a) a body corporate established for a public purpose by or under a law of the Commonwealth or the Australian Capital Territory; or (b) a body corporate: (i) incorporated under a law of the Commonwealth or a State or Territory; and (ii) in which the Commonwealth has a controlling interest. conduct includes being (whether directly or indirectly) a party to, or concerned in, the conduct. constitutional corporation means: (a) a foreign corporation within the meaning of paragraph 51(xx) of the Constitution; or (b) a body corporate that is, for the purposes of paragraph 51(xx) of the Constitution, a financial corporation formed within the limits of the Commonwealth; or (c) a body corporate that is, for the purposes of paragraph 51(xx) of the Constitution, a trading corporation formed within the limits of the Commonwealth; or (d) a body corporate that is incorporated in a Territory; or (e) a Commonwealth authority. Construction and General Division means the Construction and General Division as defined in the rules of the CFMEU at the commencement of section 323A. control has the same meaning as in the Corporations Act 2001. covers: (a) in relation to a modern award, has the same meaning as in section 48 of the Fair Work Act; and (b) in relation to an enterprise agreement, has the same meaning as in section 53 of the Fair Work Act. declaration envelope means an envelope in the form prescribed by the regulations on which a voter is required to make a declaration containing the prescribed information. de facto partner of a person has the meaning given by the Acts Interpretation Act 1901. demarcation dispute includes: (a) a dispute arising between 2 or more organisations, or within an organisation, as to the rights, status or functions of members of the organisations or organisation in relation to the employment of those members; or (b) a dispute arising between employers and employees, or between members of different organisations, as to the demarcation of functions of employees or classes of employees; or (c) a dispute about the representation under this Act or the Fair Work Act of the industrial interests of employees by an organisation of employees. Deputy President means a Deputy President of the FWC. designated publication restriction has the same meaning as in the Public Interest Disclosure Act 2013. detriment, in Part 4A of Chapter 11, has the meaning given by subsection 337BA(2). directions contravention means a contravention of one of the following: (a) subsection 297(2) or (3); (b) subsection 298(2) or (3); (c) subsection 299(2) or (3); (d) subsection 300(2) or (3); (e) subsection 301(2) or (3); (f) subsection 302(2) or (3); (g) subsection 303(2). direct voting system, in relation to an election for an office in an organisation, means a method of election at which: (a) all financial members; or (b) all financial members included in the branch, section, class or other division of the members of the organisation that is appropriate having regard to the nature of the office; are, subject to reasonable provisions in relation to enrolment, eligible to vote. disclosable conduct means an act or omission that: (a) contravenes, or may contravene, a provision of this Act, the Fair Work Act or the Competition and Consumer Act 2010; or (b) constitutes, or may constitute, an offence against a law of the Commonwealth. Electoral Commissioner has the same meaning as in the Commonwealth Electoral Act 1918. electoral official means an Australian Electoral Officer or a member of the staff of the AEC. eligibility rules, in relation to an organisation or association, means the rules of the organisation or association that relate to the conditions of eligibility for membership or the description of the industry or enterprise (if any) in connection with which the organisation is, or the association is proposed to be, registered. employee has its ordinary meaning, and includes a person who is usually such an employee, but does not include a person on a vocational placement. employer has its ordinary meaning, and includes: (a) a person who is usually such an employer; and (b) an unincorporated club. employing authority, in relation to a class of employees, means the person or body, or each of the persons or bodies, prescribed as the employing authority in relation to the class of employees. enterprise means: (a) a business that is carried on by a single employer; or (b) a business that is carried on by related bodies corporate, at least one of which is an employer; or (c) an operationally distinct part of a business mentioned in paragraph (a) or (b); or (d) a grouping of 2 or more operationally distinct parts of a business mentioned in paragraph (a) or (b). Whether bodies corporate are related is to be determined in accordance with the principles set out in section 50 of the Corporations Act 2001. enterprise agreement has the same meaning as in the Fair Work Act. enterprise association has the meaning given by subsection 18C(1). entity has the same meaning as in Chapter 2E of the Corporations Act 2001. evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. excluded auditor, in relation to a reporting unit, means: (a) an officer, former officer, employee or former employee of the reporting unit or the organisation of which the reporting unit is a part; or (b) a partner, employer or employee of an officer, former officer, employee or former employee of the reporting unit or the organisation of which the reporting unit is a part; or (c) a relative of an officer, former officer, employee or former employee of the reporting unit or the organisation of which the reporting unit is a part; or (d) a liquidator in respect of property of the reporting unit or the organisation of which the reporting unit is a part; or (e) a person who owes more than $5,000 to the reporting unit or the organisation of which the reporting unit is a part; or (f) a person who would not be, or whom a reasonable person would consider would not be, capable of exercising objective and impartial judgement in relation to audits relating to the reporting unit, having regard to all the circumstances. For the purposes of this definition, employee has the same meaning as in Part 3 of Chapter 8. exempt public sector superannuation scheme has the same meaning as in the Superannuation Industry (Supervision) Act 1993. Fair Work Act means the Fair Work Act 2009 and includes regulations made under that Act. federal counterpart has the meaning given by section 9A. Federal Court means the Federal Court of Australia. federally registrable: (a) in relation to an association of employers—has the meaning given by section 18A; and (b) in relation to an association of employees—has the meaning given by section 18B; and (c) in relation to an enterprise association—has the meaning given by section 18C. federal system employee means: (a) a national system employee within the meaning of section 13 of the Fair Work Act; or (c) an independent contractor who, if he or she were an employee performing work of the kind which he or she usually performs as an independent contractor, would be an employee who could be characterised in the way mentioned in paragraph (a). federal system employer means a national system employer within the meaning of section 14 of the Fair Work Act. financial records includes the following to the extent that they relate to finances or financial administration: (a) a register; (b) any other record of information; (c) financial reports or financial records, however compiled, recorded or stored; (d) a document. financial year, in relation to an organisation, means: (a) the period of 12 months commencing on 1 July in any year; or (b) if the rules of the organisation provide for another period of 12 months as the financial year of the organisation—the other period of 12 months. Note: Section 240 provides for a different financial year in special circumstances. Full Bench has the same meaning as in the Fair Work Act. FWC means the Fair Work Commission. FWC Member has the same meaning as in the Fair Work Act, but does not include an Expert Panel Member (within the meaning of that Act). General Manager means the General Manager of the FWC. general purpose financial report means the report prepared in accordance with section 253. independent contractor is confined to a natural person. industrial action has the same meaning as in the Fair Work Act. irregularity, in relation to an election or ballot, includes: (a) a breach of the rules of an organisation or branch of an organisation; and (b) an act or omission by means of which: (i) the full and free recording of votes by all persons entitled to record votes and by no other persons; or (ii) a correct ascertainment or declaration of the results of the voting; is, or is attempted to be, prevented or hindered; and (c) a contravention of section 190. lawyer has the meaning given by section 12 of the Fair Work Act. modern award has the same meaning as in the Fair Work Act. non‑cash benefit means property or services in any form other than money, but does not include a computer, mobile phone or other electronic device that is used only or mainly for work purposes. office has the meaning given by section 9. officer, in relation to an organisation, or a branch of an organisation, means a person who holds an office in the organisation or branch (including such a person when performing duties as a designated officer under Part 3 of Chapter 8). officer and related party disclosure statement has the meaning given by subsection 293J(3). one‑tier collegiate electoral system means a collegiate electoral system comprising only one stage after the first stage. operating report means the report prepared under section 254. organisation means an organisation registered under this Act. Note: Organisations registered under the Workplace Relations Act 1996 immediately before former Schedule 1B of that Act commenced are taken to be registered under that Schedule (and therefore under this Act) (see the Workplace Relations Legislation Amendment (Registration and Accountability of Organisations) (Consequential Provisions) Act 2002). parent: without limiting who is a parent of a person for the purposes of this Act, someone is the parent of a person if the person is his or her child because of the definition of child in this section. peak council has the same meaning as in the Fair Work Act. plays a significant role has the meaning given by subsection 256A(4). postal ballot means a ballot for the purposes of which: (a) a ballot paper, a declaration envelope, and another envelope in the form prescribed by the regulations, are sent by prepaid post to each person entitled to vote; and (b) facilities are provided for the return of the completed ballot paper by post by the voter without expense to the voter. prescribed includes prescribed by procedural rules of the FWC made under section 609 of the Fair Work Act. President means the President of the FWC. proceeding means: (a) a proceeding in a court; or (b) a proceeding or hearing before, or an examination by or before, a tribunal; whether the proceeding, hearing or examination is of a civil, administrative, criminal, disciplinary or other nature. protected industrial action has the same meaning as in the Fair Work Act. public sector employment has the same meaning as in the Fair Work Act. recognised State‑registered association means a State‑registered association that is recognised under Schedule 2. registered auditor means a person who is registered as an auditor under subsection 255B(2) or (3). registered company auditor means a person registered as an auditor under Part 9.2 of the Corporations Act 2001. Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014. related party has the meaning given by section 9B. relative, in relation to a person, means: (a) a parent, step‑parent, child, stepchild, grandparent, grandchild, brother or sister of the person; or (b) the spouse of the first‑mentioned person. removed person has the meaning given by section 323MA. remuneration: (a) includes pay, wages, salary, fees, allowances, leave, benefits or other entitlements; but (b) does not include a non‑cash benefit. reporting guidelines mean the guidelines issued under section 255. reporting unit has the meaning given by section 242. serious contravention, in relation to a contravention of a civil penalty provision by an organisation, a branch of an organisation or a person who is, or was, an officer or employee of an organisation or a branch of an organisation, means a contravention that: (a) materially prejudices the interests of the organisation or branch, or the members of the organisation or branch; or (b) materially prejudices the ability of the organisation or branch to pay its creditors; or (c) is serious. spouse of a person includes a de facto partner of the person. State award means an award, order, decision or determination of a State industrial authority. State demarcation order means a State award, to the extent that it relates to the rights of a State‑registered association to represent the interests under a State or Territory industrial law of a particular class or group of employees. State industrial authority means: (a) a board or court of conciliation or arbitration, or tribunal, body or persons, having authority under a State Act to exercise any power of conciliation or arbitration in relation to industrial disputes within the limits of the State; or (b) a special board constituted under a State Act relating to factories; or (c) any other State board, court, tribunal, body or official prescribed for the purposes of this definition. State or Territory industrial law has the same meaning as in the Fair Work Act. State‑registered association has the meaning given by clause 1 of Schedule 1. stepchild: without limiting who is a stepchild of a person for the purposes of this Act, someone who is a child of a de facto partner of the person is the stepchild of the person if he or she would be the person's stepchild except that the person is not legally married to the partner. step‑parent: without limiting who is a step‑parent of a person for the purposes of this Act, someone who is a de facto partner of a parent of the person is the step‑parent of the person if he or she would be the person's step‑parent except that he or she is not legally married to the person's parent. superannuation entity has the same meaning as in the Superannuation Industry (Supervision) Act 1993. takes a reprisal has the meaning given by section 337BA. this Act includes regulations made under this Act. transitionally recognised association means a State‑registered association that is recognised under Schedule 1. Vice President means a Vice President of the FWC. vocational placement has the same meaning as in the Fair Work Act. workplace group means a class or group of employees, all of whom perform work: (a) for the same employer; or (b) at the same premises or workplace; or (c) for the same employer and at the same premises or workplace. 7 Relationships For the purposes of this Act, if one person is the child of another person because of the definition of child in section 6, relationships traced to or through that person are to be determined on the basis that the person is the child of the other person. 9 Meaning of office (1) In this Act, office, in relation to an organisation or a branch of an organisation means: (a) an office of president, vice president, secretary or assistant secretary of the organisation or branch; or (b) the office of a voting member of a collective body of the organisation or branch, being a collective body that has power in relation to any of the following functions: (i) the management of the affairs of the organisation or branch; (ii) the determination of policy for the organisation or branch; (iii) the making, alteration or rescission of rules of the organisation or branch; (iv) the enforcement of rules of the organisation or branch, or the performance of functions in relation to the enforcement of such rules; or (c) an office the holder of which is, under the rules of the organisation or branch, entitled to participate directly in any of the functions referred to in subparagraphs (b)(i) and (iv), other than an office the holder of which participates only in accordance with directions given by a collective body or another person for the purpose of implementing: (i) existing policy of the organisation or branch; or (ii) decisions concerning the organisation or branch; or (d) an office the holder of which is, under the rules of the organisation or branch, entitled to participate directly in any of the functions referred to in subparagraphs (b)(ii) and (iii); or (e) the office of a person holding (whether as trustee or otherwise) property: (i) of the organisation or branch; or (ii) in which the organisation or branch has a beneficial interest. (2) In this Act, a reference to an office in an association or organisation includes a reference to an office in a branch of the association or organisation. 9A Meaning of federal counterpart (1) For the purposes of this Act, a federal counterpart for a particular association of employers or employees registered under a State or Territory industrial law is an organisation prescribed by the regulations to be a federal counterpart of that association. (2) For the purposes of this Act, if subsection (1) does not apply in relation to a particular association of employers or employees registered under a State or Territory industrial law, a federal counterpart for the association is: (a) an organisation that has a branch (including a division of such a branch or a constituent part of such a branch) in that State or Territory that has or purports to have: (i) substantially the same eligibility rules as the association; and (ii) a history of integrated operation with the association; or (b) if paragraph (a) does not apply—an organisation of which the association has purported to function as a branch (including a division of a branch or a constituent part of a branch). 9B Meaning of related party Control (1) An entity controlled by an organisation is a related party of the organisation, unless: (a) the entity is a branch, sub‑branch, division or subdivision of the organisation; or (b) the entity is an association of employers or employees registered under a State or Territory industrial law, and the organisation is a federal counterpart of the association. Officers and their spouses (2) The following persons are related parties of an organisation: (a) officers of the organisation; (b) spouses of the persons referred to in paragraph (a). Relatives of officers and spouses (3) Relatives of persons referred to in subsection (2) are related parties of the organisation. Entities controlled by other related parties (4) An entity controlled by a related party referred to in subsection (1), (2) or (3) is a related party of the organisation unless the entity is also controlled by the organisation. Related party in previous 6 months (5) An entity is a related party of an organisation at a particular time if the entity was a related party of the organisation of a kind referred to in subsection (1), (2), (3) or (4) at any time within the previous 6 months. Entity has reasonable grounds to believe it will become related party in future (6) An entity is a related party of an organisation at a particular time if the entity believes or has reasonable grounds to believe that it is likely to become a related party of the organisation of a kind referred to in subsection (1), (2), (3) or (4) at any time in the future. Acting in concert with related party (7) An entity is a related party of an organisation if the entity acts in concert with a related party of the organisation on the understanding that the related party will receive a financial benefit if the organisation gives the entity a financial benefit. Application to branches of organisations (8) This section applies in relation to a branch of an organisation as if references to an organisation were references to a branch of an organisation. 10 Forging and uttering Forging (1) For the purposes of this Act, a person is taken to have forged a document if the person: (a) makes a document which is false, knowing it to be false; or (b) without authority, alters a genuine document in a material particular; with intent that: (c) the false or altered document may be used, acted on, or accepted, as genuine, to the prejudice of another person; or (d) another person may, in the belief that it is genuine, be induced to do or refrain from doing an act. (2) For the purposes of this Act, if a person: (a) makes a document which is false, knowing it to be false; or (b) without authority, alters a genuine document in a material particular; with intent that a computer, a machine or other device should respond to the false or altered document as if it were genuine: (c) to the prejudice of another person; or (d) with the result that another person would be induced to do or refrain from doing an act; the first‑mentioned person is taken to have forged the document. Uttering (3) For the purposes of this Act, a person is taken to utter a forged document if the person: (a) uses or deals with it; or (b) attempts to use or deal with it; or (c) attempts to induce another person to use, deal with, act upon, or accept it. 11 Actions and opinions of AEC (1) In this Act, a reference to a ballot or election being conducted, or a step in a ballot or election being taken, by the AEC is a reference to the ballot or election being conducted, or the step being taken, by: (a) an electoral official; or (b) a person authorised on behalf of the AEC to do so. (2) In this Act, a reference to the opinion or other state of mind of the AEC, in relation to the exercise of a function, is a reference to the opinion or other state of mind of a person authorised to carry out the function on behalf of the AEC. 12 Membership of organisations In this Act, unless the contrary intention appears, a reference to: (a) a person who is eligible to become a member of an organisation; or (b) a person who is eligible for membership of an organisation; includes a reference to a person who is eligible merely because of an agreement made under rules of the organisation made under subsection 151(1). 13 Additional function of the FWC (1) The functions of the FWC include keeping a register of organisations. Note: Other functions of the FWC are set out in section 576 of the Fair Work Act. (2) Subject to this Act, the register of organisations is to be kept in whatever form the General Manager considers appropriate. 15 Disapplication of Part 2.5 of Criminal Code Part 2.5 of the Criminal Code does not apply to offences against this Act. Note 1: Section 6 defines this Act to include the regulations. Note 2: For the purposes of this Act (and the regulations), corporate responsibility is dealt with by section 344, rather than by Part 2.5 of the Criminal Code. 16 Contravening an offence provision or a civil penalty provision (1) This section applies if a provision of this Act provides that a person contravening another provision of this Act (the conduct provision) commits an offence or is liable to a civil penalty. (2) For the purposes of this Act, and the Regulatory Powers Act to the extent that it relates to this Act, a reference to a contravention of an offence provision or a civil penalty provision includes a reference to a contravention of the conduct provision. Chapter 2—Registration and cancellation of registration Part 1—Simplified outline of Chapter 17 Simplified outline This Chapter deals with the types of employer and employee associations that can be registered and the conditions for their registration (see Part 2). Part 2 also prohibits certain kinds of discriminatory conduct by employers and organisations in relation to the formation and registration of employee associations. This Chapter also provides that an organisation's registration can be cancelled by the Federal Court or by the FWC. It sets out the grounds and procedures for cancellation, and the consequences of cancellation (see Part 3). Part 2—Registration Division 1—Types of associations that may apply for registration 18 Employer and employee associations may apply Any of the following associations may apply for registration as an organisation: (a) a federally registrable association of employers; (b) a federally registrable association of employees; (c) a federally registrable enterprise association. 18A Federally registrable employer associations (1) An association of employers is federally registrable if: (a) it is a constitutional corporation; or (b) some or all of its members are federal system employers. (3) An association of employers is not federally registrable if it has a member who is not one of the following: (a) an employer; (b) a person who was an employer when admitted to membership, but who has not resigned or whose membership has not been terminated; (c) a person (other than an employee) who carries on business; (d) an officer of the association. (4) An association of employers is not federally registrable if: (a) it is only a body corporate because it is or has been registered under this Act (whether before or after the commencement of this subsection); and (b) it is not the case that some or all of the association's members are federal system employers. 18B Federally registrable employee associations (1) An association of employees is federally registrable if: (a) it is a constitutional corporation; or (b) some or all of its members are federal system employees. (3) An association of employees is not federally registrable if it has a member who is not one of the following: (a) an employee; (b) a person specified in subsection (4); (c) an independent contractor who, if he or she were an employee performing work of the kind which he or she usually performs as an independent contractor, would be an employee eligible for membership of the association; (d) an officer of the association. (4) The persons specified for the purpose of paragraph (3)(b) are persons (other