Commonwealth: Workplace Relations Amendment (Registration and Accountability of Organisations) Act 2002 (Cth)

Workplace Relations Amendment (Registration and Accountability of Organisations) Act 2002 No. 104, 2002 An Act to amend the Workplace Relations Act 1996 to provide for the registration of associations of employers and of employees, to regulate those associations after registration, and for related purposes Contents 1 Short title................................... 2 Commencement............................... 3 Schedule(s).................................. Schedule 1—Amendment of the Workplace Relations Act 1996 Workplace Relations Amendment (Registration and Accountability of Organisations) Act 2002 No. 104, 2002 An Act to amend the Workplace Relations Act 1996 to provide for the registration of associations of employers and of employees, to regulate those associations after registration, and for related purposes [Assented to 14 November 2002] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Workplace Relations Amendment (Registration and Accountability of Organisations) Act 2002. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day on which this Act receives the Royal Assent 14 November 2002 2. Schedule 1 A single day to be fixed by Proclamation, subject to subsection (3) 12 May 2003 (Gazette 2002, No. GN49) Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent. (2) Column 3 of the table is for additional information that is not part of this Act. This information may be included in any published version of this Act. (3) If a provision covered by item 2 of the table does not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Amendment of the Workplace Relations Act 1996 1 After section 4 Insert: 4A Schedule 1B Schedule 1B has effect. 2 After Schedule 1A Insert: Schedule 1B—Registration and Accountability of Organisations Note: See section 4A Chapter 1—Objects of Schedule and general provisions 1 Simplified outline of Chapter This Chapter sets out the objects of the Schedule and contains other provisions that are relevant to the Schedule as a whole. It includes definitions of terms that are used throughout the Schedule. However, not all definitions are in this Chapter. Definitions of terms that are used only in a particular area of the Schedule, or only in one section of the Schedule, are generally defined in that area or section. 5 Objects of Schedule The principal objects of this Schedule are to: (a) ensure that employee and employer organisations registered under this Schedule 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. Note: The Workplace Relations Act contains many provisions that affect the operation of this Schedule. For example, provisions of the Workplace Relations Act deal with the powers and functions of the Commission and of Registrars. Decisions made under this Schedule may be subject to procedures and rules (for example about appeals) that are set out in the Workplace Relations Act. 5A Schedule binds Crown (1) This Schedule binds the Crown in each of its capacities. (2) However, this Schedule does not make the Crown liable to be prosecuted for an offence. 6 Definitions In this Schedule, unless the contrary intention appears: AEC means the Australian Electoral Commission. Note: Section 11 is also relevant to this definition. approved auditor has the meaning given by the regulations. auditor, in relation to a reporting unit, means: (a) the person who is the holder of the position of auditor of the reporting unit under section 256; or (b) where a firm is the holder of the position—each person who is, from time to time, a member of the firm and is an approved 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. AWA means an Australian workplace agreement under Part VID of the Workplace Relations Act. award means an award or order that has been reduced to writing under subsection 143(1) of the Workplace Relations Act, but does not include an order made by the Commission in a proceeding under Subdivision B of Division 3 of Part VIA of that Act. breach includes non‑observance. certified agreement means an agreement certified under Division 4 of Part VIB of the Workplace Relations Act. civil penalty provision has the meaning given by subsection 305(2). collective body means: (a) in relation to an organisation—the committee of management or a conference, council, committee, panel or other body of or within the organisation; and (b) in relation to a branch of an organisation—the committee of management or a conference, council, committee, panel or other body of or within the branch. collegiate electoral system, in relation to an election for an office in an organisation, means a method of election comprising a first stage, at which persons are elected to a number of offices by a direct voting system, and a subsequent stage or subsequent stages at which persons are elected by and from a body of persons consisting only of: (a) persons elected at the last preceding stage; or (b) persons elected at the last preceding stage and other persons (being in number not more than 15% of the number of persons comprising the body) holding offices in the organisation (including the office to which the election relates), not including any person holding such an office merely because of having filled a casual vacancy in the office within the last 12 months, or the last quarter, of the term of the office. Commission means the Australian Industrial Relations Commission established under section 8 of the Workplace Relations Act. 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. 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. 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 Schedule or the Workplace Relations Act of the industrial interests of employees by an organisation of employees. Deputy Industrial Registrar means a Deputy Industrial Registrar appointed under section 75 of the Workplace Relations Act. 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. 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 includes any person whose usual occupation is that of employee, but does not include a person who is undertaking a vocational placement within the meaning of section 4 of the Workplace Relations Act. employer includes: (a) a person who is usually 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. Employment Advocate means the Employment Advocate referred to in Part IVA of the Workplace Relations Act. enterprise means: (a) a business that is carried on by a single employer; or (b) an operationally distinct part of such a business; or (c) 2 or more operationally distinct parts of the same business carried on by the same employer. enterprise association means an association referred to in paragraph 18(1)(c). enterprise organisation means an enterprise association that is registered as an organisation under this Schedule. excluded auditor, in relation to a reporting unit, means: (a) an officer or 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 or employee of the reporting unit or the organisation of which the reporting unit is a part; or (c) a liquidator in respect of property of the reporting unit or the organisation of which the reporting unit is a part; or (d) a person who owes more than $5,000 to the reporting unit or the organisation of which the reporting unit is a part. 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. Federal Court means the Federal Court of Australia. 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 means a Full Bench of the Commission. 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 meaning given by section 7. industrial dispute has the meaning given by section 8. Industrial Registrar means the Industrial Registrar appointed under section 67 of the Workplace Relations Act. Industrial Registry means the Australian Industrial Registry established under section 62 of the Workplace Relations 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. 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). old IR agreement means an agreement certified or approved under any of the following provisions of the Workplace Relations Act: (a) section 115, as in force immediately before the commencement of the Schedule to the Industrial Relations Legislation Amendment Act 1992; or (b) Division 3A of Part VI, as in force immediately before the commencement of Schedule 2 to the Industrial Relations Reform Act 1993; or (c) Part VIB, as in force immediately before the commencement of item 1 of Schedule 9 to the Workplace Relations and Other Legislation Amendment Act 1996. 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 Schedule. Note: Organisations registered under the Workplace Relations Act immediately before this Schedule commenced are taken to be registered under this Schedule (see the Workplace Relations Legislation Amendment (Registration and Accountability of Organisations) (Consequential Provisions) Act 2002). 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 Rules of the Commission made under section 48 of the Workplace Relations Act. President means the President of the Commission. Presidential Member means the President, a Vice President, a Senior Deputy President or a Deputy President, of the Commission. public sector employment has the same meaning as in the Workplace Relations Act. Registrar means the Industrial Registrar or a Deputy Industrial Registrar. registry means the Principal Registry or another registry established under section 64 of the Workplace Relations Act. Registry official means: (a) a Registrar; or (b) a member of the staff of the Industrial Registry. reporting guidelines mean the guidelines issued under section 255. reporting unit has the meaning given by section 242. 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. superannuation entity has the same meaning as in the Superannuation Industry (Supervision) Act 1993. this Schedule includes regulations made under this Schedule. Workplace Relations Act means the Workplace Relations Act 1996 and regulations made under section 359 of that Act but does not include this Schedule or regulations made under section 359 of this Schedule. 6A References to provisions in this Schedule In this Schedule, a reference to a provision is a reference to a provision of this Schedule, unless the contrary intention appears. 7 Meaning of industrial action (1) In this Schedule, industrial action means: (a) the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, the result of which is a restriction or limitation on, or a delay in, the performance of the work, where: (i) the terms and conditions of the work are prescribed, wholly or partly, by an award or an order of the Commission, by a certified agreement, old IR agreement or AWA, by an award, determination or order made by another tribunal under a law of the Commonwealth or otherwise by or under a law of the Commonwealth; or (ii) the work is performed, or the practice is adopted, in connection with an industrial dispute; or (b) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, in accordance with the terms and conditions prescribed by an award or an order of the Commission, by a certified agreement, or old IR agreement or AWA, by an award, determination or order made by another tribunal under a law of the Commonwealth or otherwise by or under a law of the Commonwealth; or (c) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, that is adopted in connection with an industrial dispute; or (d) a failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work, if: (i) the persons are members of an organisation and the failure or refusal is in accordance with a decision made, or direction given, by an organisation, the committee of management of the organisation, or an officer or a group of members of the organisation acting in that capacity; or (ii) the failure or refusal is in connection with an industrial dispute; or (iii) the persons are employed by the Commonwealth or a constitutional corporation; or (iv) the persons are employed in a Territory; but does not include: (e) action by employees that is authorised or agreed to by the employer of the employees; or (f) action by an employer that is authorised or agreed to by or on behalf of employees of the employer; or (g) action by an employee if: (i) the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and (ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform. (2) For the purposes of this Schedule: (a) conduct is capable of constituting industrial action even if the conduct relates to part only of the duties that persons are required to perform in the course of their employment; and (b) industrial action includes a course of conduct consisting of a series of industrial actions. 8 Meaning of industrial dispute (1) In this Schedule, industrial dispute means: (a) an industrial dispute (including a threatened, impending or probable industrial dispute): (i) extending beyond the limits of any one State; and (ii) that is about matters pertaining to the relationship between employers and employees; or (b) a situation that is likely to give rise to an industrial dispute of the kind referred to in paragraph (a); and includes: (c) a demarcation dispute (whether or not, in the case of a demarcation dispute involving an organisation or the members of an organisation in that capacity, the dispute extends beyond the limits of any one State); and (d) a part of an industrial dispute; and (e) an industrial dispute so far as it relates to a matter in dispute; and (f) a question arising in relation to an industrial dispute. Additional operation of Schedule—extension to industrial issues (2) Without affecting its operation apart from this section, this Schedule also has effect as if a reference to an industrial dispute included a reference to an industrial issue. (3) In this section, industrial issue has the meaning that it is given by section 5 of the Workplace Relations Act for the purposes of that section. Additional operation of Schedule—extension to Victorian disputes (4) Subsection (5) has effect only for so long, and in so far, as the Commonwealth Powers (Industrial Relations) Act 1996 of Victoria refers to the Parliament of the Commonwealth a matter or matters that result in the Parliament of the Commonwealth having sufficient legislative power for that subsection to have effect. (5) Without affecting its operation apart from this section, this Schedule also has effect as if the definition of industrial dispute in subsection (1) were replaced by the following: industrial dispute means: (a) an industrial dispute (including a threatened, impending or probable industrial dispute): (i) within the limits of Victoria; and (ii) that is about matters pertaining to the relationship between employers and employees; or (b) a situation that is likely to give rise to an industrial dispute of the kind referred to in paragraph (a); and includes a demarcation dispute. 9 Meaning of office (1) In this Schedule, 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 Schedule, a reference to an office in an association or organisation includes a reference to an office in a branch of the association or organisation. 10 Forging and uttering Forging (1) For the purposes of this Schedule, 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 Schedule, 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 Schedule, 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 Schedule, 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 Schedule, 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 Schedule, 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 Functions of the Industrial Registry (1) The functions of the Industrial Registry include: (a) keeping a register of organisations; and (b) providing advice and assistance to organisations in relation to their rights and obligations under this Schedule. Note: Other functions of the Industrial Registry are set out in section 63 of the Workplace Relations Act. (2) Subject to this Schedule, the register of organisations is to be kept in whatever form the Industrial Registrar considers appropriate. 14 President may establish Organisations Panel (1) The President may establish a panel (the Organisations Panel) of members of the Commission to exercise the powers of the Commission under this Schedule. (2) The Organisations Panel is to consist of: (a) a Presidential Member whose duties include organising and allocating the work of the Panel; and (b) one or more other members of the Commission assigned to the Panel by the President. (3) A member of the Organisations Panel may be a member of one or more panels referred to in section 37 of the Workplace Relations Act. Note: Section 37 of the Workplace Relations Act provides for the setting up of Commission panels for particular industries. (4) The fact that a person is a member of the Organisations Panel does not affect any powers, function or duties that have been, or may be, given to the person by or under any other provision of this Schedule or the Workplace Relations Act. (5) Even if the President establishes an Organisations Panel, he or she may direct that the powers of the Commission in relation to a particular matter arising under this Schedule are to be exercised by: (a) a member of the Commission who is not a member of the Panel; or (b) members of the Commission, some or all of whom are not members of the Panel. 15 Disapplication of Part 2.5 of Criminal Code Part 2.5 of the Criminal Code does not apply to offences against this Schedule. Note 1: Section 6 of this Schedule defines this Schedule to include the regulations. Note 2: For the purposes of this Schedule (and the regulations), corporate responsibility is dealt with by section 344, rather than by Part 2.5 of the Criminal Code. 16 Operation of offence provisions If a maximum penalty is specified: (a) at the foot of a section of this Schedule (other than a section that is divided into subsections); or (b) at the foot of a subsection of this Schedule; then: (c) a person who contravenes the section or subsection is guilty of an offence punishable, on conviction, by a penalty not exceeding the specified penalty; or (d) the offence referred to in the section or subsection is punishable, on conviction, by a penalty not exceeding the specified penalty. 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 Commission. 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 (1) Any of the following associations may apply for registration as an organisation: (a) an association of which some or all of the members are employers who are capable of being engaged in an industrial dispute and the other members (if any) are: (i) officers of the association; or (ii) persons (other than employees) who carry on business; or (iii) persons who, when admitted to membership, were employers and who have not resigned and whose membership has not been terminated; (b) an association of which some or all of the members are employees who are capable of being engaged in an industrial dispute and the other members (if any) are: (i) officers of the association; or (ii) persons specified in subsection (3); or (iii) independent contractors who, if they were employees performing work of the kind which they usually perform as independent contractors, would be employees eligible for membership of the association; (c) an association (an enterprise association) of which some or all of the members are employees performing work in the same enterprise and the other members (if any) are: (i) officers of the association; or (ii) persons specified in subsection (3); or (iii) independent contractors who, if they were employees performing work of the kind which they usually perform as independent contractors, would be employees eligible for membership of the association. (2) Subsection (1) does not apply in relation to an association that has members referred to in subparagraph (1)(a)(ii) or (iii), (b)(ii) or (iii) or (c)(ii) or (iii) unless the association is effectively representative of the members who are employers or employees, as the case may be. (3) The persons specified for the purpose of subparagraphs (1)(b)(ii) and (c)(ii) are persons (other than employees) who: (a) are, or are able to become, members of an industrial organisation of employees within the meaning of the Industrial Relations Act 1996 of New South Wales; or (b) are employees for the purposes of the Industrial Relations Act 1999 of Queensland; or (c) are employees for the purposes of the Industrial Relations Act 1979 of Western Australia; or (d) are employees for the purposes of the Industrial and Employee Relations Act 1994 of South Australia. Division 2—Registration criteria 19 Criteria for registration of associations other than enterprise associations (1) The Commission must grant an application for registration made by an association (other than an enterprise association) that, under section 18, may apply for registration as an organisation if, and only if: (a) the association: (i) is a genuine association of a kind referred to in section 18; and (ii) is an association for furthering or protecting the interests of its members; and (b) in the case of an association of employees—the association is free from control by, or improper influence from, an employer or by an association or organisation of employers; and (c) in the case of an association of employers—the members who are employers have, in the aggregate, throughout the 6 months before the application, employed on an average taken per month at least 50 employees; and (d) in the case of an association of employees—the association has at least 50 members who are employees; and (e) the Commission is satisfied that the association would conduct its affairs in a way that meets the obligations of an organisation under this Schedule and the Workplace Relations Act; and (f) the rules of the association make provision as required by this Schedule to be made by the rules of organisations; and (g) the association does not have the same name as that of an organisation or a name that is so similar to the name of an organisation as to be likely to cause confusion; and (h) a majority of the members present at a general meeting of the association, or an absolute majority of the committee of management of the association, have passed, under the rules of the association, a resolution in favour of registration of the association as an organisation; and (i) the registration of the association would further the objects set out in section 5 of this Schedule and section 3 of the Workplace Relations Act; and (j) subject to subsection (2), there is no organisation to which members of the association might belong or, if there is such an organisation, it is not an organisation: (i) to which the members of the association could more conveniently belong; and (ii) that would more effectively represent those members. (2) If: (a) there is an organisation to which the members of the association might belong; and (b) the members of the association could more conveniently belong to the organisation; and (c) the organisation would more effectively represent those members than the association would; the requirements of paragraph (1)(j) are taken to have been met if the Commission accepts an undertaking from the association that the Commission considers appropriate to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of the organisation and the eligibility rules of the association. (3) Without limiting the matters that the Commission may take into account in considering, under subparagraph (1)(j)(ii), the effectiveness of the representation of an organisation or association, the Commission must take into account whether the representation would be consistent with the objects set out in section 5 of this Schedule and section 3 of the Workplace Relations Act. (4) In applying paragraph (1)(e), the Commission must have regard to whether any recent conduct by the association or its members would have provided grounds for an application under section 28 had the association been registered when the conduct occurred. 20 Criteria for registration of enterprise associations (1) The Commission must grant an application for registration made by an enterprise association that, under section 18, may apply for registration as an organisation if, and only if: (a) the association: (i) is a genuine association of a kind referred to in section 18; and (ii) is an association for furthering or protecting the interests of its members; and (b) the association is free from control by, or improper influence from: (i) any employer, whether at the enterprise in question or otherwise; or (ii) any person or body with an interest in that enterprise; or (iii) any organisation, or any other association of employers or employees; and (c) the association has at least 50 members who are employees; and (d) the Commission is satisfied that the association would conduct its affairs in a way that meets the obligations of an organisation under this Schedule and the Workplace Relations Act; and (e) the rules of the association make provision as required by this Schedule to be made by the rules of organisations; and (f) the association does not have the same name as that of an organisation or a name that is so similar to the name of an organisation as to be likely to cause confusion; and (g) the Commission is satisfied that a majority of the persons eligible to be members of the association support its registration as an organisation; and (h) a majority of the members present at a general meeting of the association, or an absolute majority of the committee of management of the association, have passed, under the rules of the association, a resolution in favour of registration of the association as an organisation; and (i) the registration of the association would further the objects set out in section 5 of this Schedule and section 3 of the Workplace Relations Act. (1A) For the purposes of paragraph (1)(b), if a person or body has an interest in the enterprise in question, the Commission may decide that, despite the interest, the association is free from control by, or improper influence from, the person or body. Note: The Commission could conclude that the association was free from control etc. by the person if, for example, the nature of the person's interest was not such as to give the person a major say in the conduct of the enterprise or if the person did not have a significant management role in the association. (1B) For the purposes of paragraph (1)(b), if an employer meets or will meet costs and expenses of the association, or provides or will provide services to the association, this assistance must be taken into account when considering whether the association is free from control by, or improper influence from the employer. (2) In applying paragraph (1)(d), the Commission must have regard to whether any recent conduct by the association or its members would have provided grounds for an application under section 28 had the association been registered when the conduct occurred. Division 3—Prohibited conduct in relation to formation or registration of employee associations 21 Prohibited conduct—employers (1) An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following: (a) dismiss an employee; (b) injure an employee in his or her employment; (c) alter the position of an employee to the employee's prejudice; (d) discriminate against an employee. (2) A person must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following: (a) terminate a contract for services that he or she has entered into with an independent contractor; (b) injure an independent contractor in relation to the terms and conditions of the contract for services; (c) alter the position of an independent contractor to the independent contractor's prejudice; (d) discriminate against an independent contractor. (3) Conduct referred to in subsection (1) or (2) is for a prohibited reason if it is carried out because the employee or independent contractor has done, or has omitted to do, any act: (a) under this Schedule that relates to the formation or registration of an association referred to in paragraph 18(1)(b) or (c); or (b) in connection with, or in preparation for, such an act or omission. (4) The following are examples of acts or omissions to which subsection (3) applies: (a) making an application for registration of an employee association under paragraph 18(1)(b) or (c); (b) supporting the registration of an employee association (for example, by supporting, or supporting the making of, an application for its registration); (c) participating, or encouraging a person to participate, in proceedings before the Commission in relation to such an application; (d) not participating, or encouraging a person not to participate, in such proceedings; (e) becoming a member, or encouraging a person to become a member, of an employee association. 22 Prohibited conduct—organisations (1) An organisation, or an officer or member of an organisation, must not take, or threaten to take, industrial action whose aim, or one of whose aims, is to coerce a person to breach section 21. (2) An organisation, or an officer or member of an organisation, must not, for a prohibited reason, or for reasons that include a prohibited reason, take or threaten to take, any action whose aim, or one of whose aims, is to prejudice a person in the person's employment, or an independent contractor in the contractor's engagement. (3) Conduct referred to in subsection (2) is for a prohibited reason if it is carried out because the person has done, or has omitted to do, any act: (a) under this Schedule that relates to the formation or registration of an association referred to in paragraph 18(1)(b) or (c); or (b) in connection with, or in preparation for, such an act or omission. (4) The examples set out in subsection 21(4) are examples of acts or omissions to which subsection (3) of this section applies. (5) An organisation, or an officer or member of an organisation, must not impose, or threaten to impose, a penalty, forfeiture or disability of any kind on a member of the organisation because the member concerned does or proposes to do, for a prohibited reason, an act or omission referred to in subsection 21(3). 23 Powers of Federal Court in relation to prohibited conduct (1) The Federal Court may, if the Court considers it appropriate in all the circumstances, make one or more of the following orders in respect of conduct that contravenes section 21 or 22: (a) an order imposing on a person whose conduct contravenes that section a penalty of not more than: (i) in the case of a body corporate—100 penalty units; or (ii) in any other case—20 penalty units; (b) an order requiring the person not to carry out a threat made by the person, or not to make any further threat; (c) injunctions (including interim injunctions), and any other orders, that the Court considers necessary to stop the conduct or remedy its effects; (d) any other consequential orders. (2) An application for an order under subsection (1) may be made by: (a) a person against whom the conduct is being, has been, or is threatened to be, taken; or (b) any other person prescribed by the regulations. 24 Certain actions considered to be done by organisation or employer (1) For the purposes of this Division: (a) action done by one of the following bodies or persons is taken to have been done by an organisation: (i) the committee of management of the organisation; (ii) an officer or agent of the organisation acting in that capacity; (iii) a member or group of members of the organisation acting under the rules of the organisation; (iv) a member of the organisation, who performs the function of dealing with an employer on behalf of other members of the organisation, acting in that capacity; and (b) action done by an agent of an employer acting in that capacity is taken to have been done by the employer. (2) Subparagraphs (1)(a)(iii) and (iv) and paragraph (1)(b) do not apply if: (a) in relation to subparagraphs (1)(a)(iii) and (iv): (i) a committee of management of the organisation; or (ii) a person authorised by the committee; or (iii) an officer of the organisation; has taken reasonable steps to prevent the action; or (b) in relation to paragraph (1)(b), the employer has taken reasonable steps to prevent the action. (3) In this section: officer, in relation to an organisation, includes: (a) a delegate or other representative of the organisation; and (b) an employee of the organisation. Division 4—Registration process 25 Applicant for registration may change its name or alter its rules (1) The Commission may, on the application of an association applying to be registered as an organisation, grant leave to the association, on such terms and conditions as the Commission considers appropriate, to change its name or to alter its rules: (a) to enable it to comply with this Schedule; or (b) to remove a ground of objection taken by an objector under the regulations or by the Commission; or (c) to correct a formal error in its rules (for example, to remove an ambiguity, to correct spelling or grammar, or to correct an incorrect reference to an organisation or person). Note: Paragraph (a)—in order for an organisation to comply with this Schedule, its rules must not be contrary to the Workplace Relations Act (see paragraph 142(a) of this Schedule). (2) An association granted leave under subsection (1) may change its name, or alter its rules, even though the application for registration is pending. (3) Rules of an association as altered in accordance with leave granted under subsection (1) are binding on the members of the association: (a) in spite of anything in the other rules of the association; and (b) subject to any further alterations lawfully made. 26 Registration (1) When the Commission grants an application by an association for registration as an organisation, the Industrial Registrar must immediately enter, in the register kept under paragraph 13(1)(a), such particulars in relation to the association as are prescribed and the date of the entry. (2) An association is to be taken to be registered under this Schedule when the Industrial Registrar enters the prescribed particulars in the register under subsection (1). (3) On registration, an association becomes an organisation. (4) The Industrial Registrar must issue to each organisation registered under this Schedule a certificate of registration in the prescribed form. Note: Certificates of registration issued under the Workplace Relations Act continue in force (see the Workplace Relations Legislation Amendment (Registration and Accountability of Organisations) (Consequential Provisions) Act 2002). (5) The certificate is, until proof of cancellation, conclusive evidence of the registration of the organisation specified in the certificate. (6) The Industrial Registrar may, as prescribed, issue to an organisation a copy of, or a certificate replacing, the certificate of registration issued under subsection (4) or that certificate as amended under section 160. 27 Incorporation An organisation: (a) is a body corporate; and (b) has perpetual succession; and (c) has power to purchase, take on lease, hold, sell, lease, mortgage, exchange and otherwise own, possess and deal with, any real or personal property; and (d) must have a common seal; and (e) may sue or be sued in its registered name. Part 3—Cancellation of registration 28 Application for cancellation of registration (1) An organisation or person interested, or the Minister, may apply to the Federal Court for an order cancelling the registration of an organisation on the ground that: (a) the conduct of: (i) the organisation (in relation to its continued breach of an award, an order of the Commission, a certified agreement or an old IR agreement or its continued failure to ensure that its members comply with and observe an award, an order of the Commission, a certified agreement or an old IR agreement or in any other respect); or (ii) a substantial number of the members of the organisation (in relation to their continued breach of an award, an order of the Commission, a certified agreement or an old IR agreement or in any other respect); has prevented or hindered the achievement of an object of this Schedule or the Workplace Relations Act; or (b) the organisation, or a substantial number of the members of the organisation or of a section or class of members of the organisation, has engaged in industrial action that has prevented, hindered or interfered with: (i) trade or commerce between Australia and a place outside Australia; or (ii) trade or commerce between the States; or (iii) trade or commerce within a Territory, between a State and a Territory or between 2 Territories; or (iv) the provision of any public service by the Commonwealth or a State or Territory or an authority of the Commonwealth or a State or Territory; or (c) the organisation, or a substantial number of the members of the organisation or of a section or class of members of the organisation, has or have been, or is or are, engaged in industrial action that has had, is having or is likely to have a substantial adverse effect on the safety, health or welfare of the community or a part of the community; or (d) the organisation, or a substantial number of the members of the organisation or of a section or class of members of the organisation, has or have failed to comply with an injunction granted under subsection 127(6) or (7) of the Workplace Relations Act; or (e) the organisation, or a substantial number of the members of the organisation or of a section or class of members of the organisation, has or have failed to comply with an injunction granted under section 187AD of the Workplace Relations Act. (2) An organisation in relation to which an application is made under subsection (1) must be given an opportunity of being heard by the Court. (3) If the Court: (a) finds that a ground for cancellation set out in the application has been established; and (b) does not consider that it would be unjust to do so having regard to the degree of gravity of the matters constituting the ground and the action (if any) that has been taken by or against the organisation in relation to the matters; the Court must, subject to subsection (4) and section 29, cancel the registration of the organisation. (4) If: (a) the Court finds that a ground for cancellation set out in the application has been established; and (b) that finding is made, wholly or mainly, because of the conduct of a particular section or class of members of the organisation; the Court may, if it considers it just to do so, instead of cancelling the registration of the organisation under subsection (3), by order: (c) determine alterations of the eligibility rules of the organisation so as to exclude from eligibility for membership of the organisation persons belonging to the section or class; or (d) where persons belonging to the section or class are eligible for membership under an agreement of the kind referred to in section 151—declare that the persons are excluded from eligibility for membership in spite of anything in the agreement. (5) If the Court cancels the registration of an organisation, the Court may direct that an application by the former organisation to be registered as an organisation is not to be dealt with under this Schedule before the end of a specified period. (6) An alteration of rules determined by order under subsection (4) takes effect on the date of the order or on such other day as is specified in the order. (7) A finding of fact by the Court in proceedings under section 127 or Part VIIIA of the Workplace Relations Act is admissible as prima facie evidence of that fact in an application made on a ground specified in paragraph (1)(d) or (e), as the case requires. 29 Orders where cancellation of registration deferred (1) If the Federal Court finds that a ground of an application under subsection 28(1) has been established, the Court may, if it considers it just to do so, instead of cancelling the registration of the organisation concerned under subsection 28(3) or making an order under subsection 28(4), exercise one or more of the powers set out in subsection (2) of this section. (2) The powers that may be exercised by the Court, by order, under subsection (1) are as follows: (a) the power to suspend, to the extent specified in the order, any of the rights, privileges or capacities of the organisation or of all or any of its members, as such members, under this Schedule, the Workplace Relations Act or any other Act, under awards or orders made under this Schedule, the Workplace Relations Act or any other Act or under certified agreements or old IR agreements; (b) the power to give directions as to the exercise of any rights, privileges or capacities that have been suspended; (c) the power to make provision restricting the use of the funds or property of the organisation or a branch of the organisation, and for the control of the funds or property for the purpose of ensuring observance of the restrictions. (3) If the Court exercises a power set out in subsection (2), it must defer the determination of the question whether to cancel the registration of the organisation concerned until: (a) the orders made in the exercise of the power cease to be in force; or (b) on application by a party to the proceeding, the Court considers that it is just to determine the question, having regard to any evidence given relating to the observance or non‑observance of any order and to any other relevant circumstance; whichever is earlier. (4) An order made in the exercise of a power set out in subsection (2) has effect in spite of anything in the rules of the organisation concerned or a branch of the organisation. (5) An order made in the exercise of a power set out in subsection (2): (a) may be revoked by the Court, by order, on application by a party to the proceeding concerned; and (b) unless sooner revoked, ceases to be in force: (i) 6 months after it came into force; or (ii) such longer period after it came into force as is ordered by the Court on application by a party to the proceeding made while the order remains in force. 30 Cancellation of registration on technical grounds etc. (1) The Commission may cancel the registration of an organisation: (a) on application by the organisation made under the regulations; or (b) on application by an organisation or person interested or by the Minister, if the Commission has satisfied itself, as prescribed, that the organisation: (i) was registered by mistake; or (ii) is no longer effectively representative of the members who are employers or employees, as the case requires; or (iii) is not free from control by, or improper influence from, a person or body referred to in paragraph 19(1)(b) or 20(1)(b), as the case requires; or (iv) subject to subsection (6), if the organisation is an enterprise association—the enterprise to which it relates has ceased to exist; or (c) on the Commission's own motion, if: (i) the Commission has satisfied itself, as prescribed, that the organisation is defunct; or (ii) the organisation is an organisation of employees and has fewer than 50 members who are employees. (2) Before the Commission cancels the registration of an organisation under: (a) paragraph (1)(b) on application by a person interested or by the Minister; or (b) paragraph (1)(c); the Commission must give the organisation an opportunity to be heard. (3) The Commission may also cancel the registration of an organisation if: (a) the Commission is satisfied that the organisation has breached an undertaking referred to in subsection 19(2); and (b) the Commission does not consider it appropriate to amend the eligibility rules of the organisation under section 157. (4) A cancellation under subsection (3) may be made: (a) on application by an organisation or person interested; or (b) on application by the Minister; or (c) on the Commission's own motion. (5) For the purposes of subparagraph (1)(b)(iv), the enterprise to which an organisation relates has ceased to exist if: (a) in the case of an organisation that relates only to an operationally distinct part or parts of the business that constitutes the enterprise—that part or those parts have ceased to exist, or the whole of the business has ceased to exist; or (b) in the case of an organisation that relates to the whole of the business that constitutes the enterprise—the whole of the business has ceased to exist. (6) Subparagraph (1)(b)(iv) does not apply if: (a) some or all of the business of the enterprise in question is now conducted by another enterprise; and (b) all the alterations that are necessary to enable the organisation to operate as an enterprise association in relation to the other enterprise have been made; and (c) the Commission is satisfied that the organisation still meets the requirements of subsection 20(1). The Commission must give the organisation a reasonable opportunity to alter its rules as provided in paragraph (b) before the Commission considers cancelling the registration of the organisation on the ground referred to in subparagraph (1)(b)(iv). 31 Cancellation to be recorded If the registration of an organisation under this Schedule is cancelled, the Industrial Registrar must enter the cancellation, and the date of cancellation, in the register kept under paragraph 13(1)(a). 32 Consequences of cancellation of registration The cancellation of the registration of an organisation under this Schedule has the following consequences: (a) the organisation ceases to be an organisation and a body corporate under this Schedule, but does not because of the cancellation cease to be an association; (b) the cancellation does not relieve the association or any of its members from any penalty or liability incurred by the organisation or its members before the cancellation; (c) from the cancellation, the association and its members are not entitled to the benefits of any award, order of the Commission, certified agreement or old IR agreement that bound the organisation or its members; (d) the Commission may, on application by an organisation or person interested, make such order as the Commission considers appropriate about the other effects (if any) of such an award, order or agreement on the association and its members; (e) 21 days after the cancellation, such an award, order or agreement ceases, subject to any order made under paragraph (d), in all other respects to have effect in relation to the association and its members; (f) the Federal Court may, on application by a person interested, make such order as it considers appropriate in relation to the satisfaction of the debts and obligations of the organisation out of the property of the organisation; (g) the property of the organisation is, subject to any order made under paragraph (f), the property of the association and must be held and applied for the purposes of the association under the rules of the organisation so far as they can still be carried out or observed. Part 4—Commission's powers under this Chapter 33 Powers exercisable by Presidential Member The powers of the Commission under this Chapter are exercisable only by a Presidential Member. Chapter 3—Amalgamation and withdrawal from amalgamation Part 1—Simplified outline of Chapter 34 Simplified outline The procedure for the amalgamation of 2 or more organisations is set out in Part 2 of this Chapter. The 2 main elements of the amalgamation procedure are an application to the Commission seeking approval for a ballot to be held on the question of amalgamation, and the holding of a ballot conducted by the Australian Electoral Commission. Part 2 also sets out the consequences of an amalgamation (for example, in relation to assets and liabilities of the organisations forming the new amalgamated organisation). It also enables the validation of certain acts done for the purposes of an amalgamation. The procedure that enables part of an amalgamated organisation to withdraw from it is set out in Part 3 of this Chapter. The main elements of the procedure to withdraw are an application to the Federal Court for approval to hold a ballot on the question, and the holding of the ballot. Part 3 also sets out the consequences of a withdrawal from amalgamation (for example, in relation to assets and liabilities of the amalgamated organisation and the constituent part). It also enables the validation of certain acts done for the purposes of a withdrawal from amalgamation. Part 2—Amalgamation of organisations Division 1—General 35 Definitions In this Part: alternative provision means a provision of the kind mentioned in subsection 41(1). amalgamated organisation, in relation to a completed amalgamation, means the organisation of which members of the de‑registered organisations have become members under paragraph 73(3)(d). amalgamation day, in relation to a completed amalgamation, means the day fixed under subsection 73(2) in relation to the amalgamation. asset means property of any kind, and includes: (a) any legal or equitable estate or interest (whether present or future, vested or contingent, tangible or intangible) in real or personal property of any description; and (b) any chose in action; and (c) any right, interest or claim of any kind in, or in relation to, property (whether arising under an instrument or otherwise, and whether liquidated or unliquidated, certain or contingent, accrued or accruing). authorised person, in relation to a completed amalgamation, means the secretary of the amalgamated organisation or a person authorised, in writing, by the committee of management of the amalgamated organisation. charge means a charge created in any way, and includes a mortgage and an agreement to give or execute a charge or mortgage (whether on demand or otherwise). closing day, in relation to a ballot for a proposed amalgamation, means the day, from time to time, fixed under section 58 as the closing day of the ballot. commencing day, in relation to a ballot for a proposed amalgamation, means the day, from time to time, fixed under section 58 as the commencing day of the ballot. completed amalgamation means a proposed amalgamation that has taken effect. debenture has the same meaning as in section 9 of the Corporations Act 2001. defect includes a nullity, omission, error or irregularity. de‑registered organisation, in relation to a completed amalgamation, means an organisation that has been de‑registered under this Part. de‑registration, in relation to an organisation, means the cancellation of its registration. holder, in relation to a charge, includes a person in whose favour a charge is to be given or executed (whether on demand or otherwise) under an agreement. instrument means an instrument of any kind, and includes: (a) any contract, deed, undertaking or agreement; and (b) any mandate, instruction, notice, authority or order; and (c) any lease, licence, transfer, conveyance or other assurance; and (d) any guarantee, bond, power of attorney, bill of lading, negotiable instrument or order for the payment of money; and (e) any mortgage, charge, lien or security; whether express or implied and whether made or given orally or in writing. instrument to which this Part applies, in relation to a completed amalgamation, means an instrument: (a) to which a de‑registered organisation is a party; or (b) that was given to, by, or in favour of, a de‑registered organisation; or (c) in which a reference is made to a de‑registered organisation; or (d) under which any money is or may become payable, or any other property is to be, or may become liable to be, transferred, conveyed or assigned, to or by a de‑registered organisation. interest: (a) in relation to a company—includes an interest in a managed