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2019
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Fair Work (Registered Organisations)
Amendment (Ensuring Integrity) Bill
2019
No. , 2019
(Industrial Relations)
A Bill for an Act to amend the Fair Work
(Registered Organisations) Act 2009, and for related
purposes
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Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1—Disqualification from office
3
Fair Work (Registered Organisations) Act 2009
3
Schedule 2—Cancellation of registration and alternative orders
14
Fair Work (Registered Organisations) Act 2009
14
Schedule 3—Administration of dysfunctional organisations etc.
26
Fair Work (Registered Organisations) Act 2009
26
Schedule 4—Public interest test for amalgamations
34
Fair Work (Registered Organisations) Act 2009
34
Schedule 5—Minor and technical amendments
41
Fair Work (Registered Organisations) Act 2009
41
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1
OPC drafter to complete
1. Does this Bill need a message? (See H of R Practice, sixth ed,
No
pp. 423-427, and OGC advice.)
If yes:
List relevant clauses/items—
Prepare message advice (see Drafting Direction 4.9)
Give a copy of the message advice to the Legislation area.
2. Does this Bill need a notice? (See H of R Standing Order 178
Yes
and Drafting Direction 3.2.)
If no list relevant clauses/items—
3. Is there any constitutional reason why this Bill should not be
No
introduced in the Senate?
(See Constitution sections 53 and 55 and Drafting Direction 3.2.)
2
3
A Bill for an Act to amend the Fair Work
4
(Registered Organisations) Act 2009, and for related
5
purposes
6
The Parliament of Australia enacts:
7
1 Short title
8
This Act is the
Fair Work (Registered Organisations) Amendment
9
(Ensuring Integrity) Act 2019.
10
2 Commencement
11
(1) Each provision of this Act specified in column 1 of the table
12
commences, or is taken to have commenced, in accordance with
13
column 2 of the table. Any other statement in column 2 has effect
14
according to its terms.
15
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Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
The day after this Act receives the Royal
this Act
Assent.
1
Note:
This table relates only to the provisions of this Act as originally
2
enacted. It will not be amended to deal with any later amendments of
3
this Act.
4
(2) Any information in column 3 of the table is not part of this Act.
5
Information may be inserted in this column, or information in it
6
may be edited, in any published version of this Act.
7
3 Schedules
8
Legislation that is specified in a Schedule to this Act is amended or
9
repealed as set out in the applicable items in the Schedule
10
concerned, and any other item in a Schedule to this Act has effect
11
according to its terms.
2
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Disqualification from office
Schedule 1
1
Schedule 1—Disqualification from office
2
3
Fair Work (Registered Organisations) Act 2009
4
1 Section 6
5
Insert:
6
designated finding has the meaning given by section 9C.
7
designated law has the meaning given by section 9C.
8
disqualified from holding office in an organisation has the
9
meaning given by section 225.
10
wider criminal finding has the meaning given by section 9C.
11
2 After section 9B
12
Insert:
13
9C Designated findings, and designated laws and wider criminal
14
findings
15
Designated findings
16
(1) A
designated finding is a finding:
17
(a) in any criminal proceedings against a person—that the person
18
has committed an offence against a designated law; or
19
(b) in any civil proceedings against a person—that the person has
20
contravened, or been involved in a contravention of:
21
(i) a civil penalty provision of this Act; or
22
(ii) a civil remedy provision of the Fair Work Act; or
23
(iii) a civil remedy provision of the
Building and
24
Construction Industry (Improving Productivity) Act
25
2016; or
26
(iv) a civil penalty provision of the
Fair Work (Building
27
Industry) Act 2012 as in force at any time before its
28
repeal; or
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Schedule 1 Disqualification from office
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(v) a provision of Part IV of the
Competition and Consumer
2
Act 2010, or a provision of the Competition Code of a
3
State or Territory, other than an offence; or
4
(vi) a WHS civil penalty provision of the
Work Health and
5
Safety Act 2011; or
6
(viiv) a provision of a State or Territory OHS law (within the
7
meaning of the Fair Work Act), other than an offence.
8
Designated lawlaws
9
(2) The following are
designated laws:
10
(a) this Act;
11
(b) the Fair Work Act;
12
(c) the
Building and Construction Industry (Improving
13
Productivity) Act 2016;
14
(d) the
Fair Work (Building Industry) Act 2012 as in force at any
15
time before its repeal;
16
(e) Part IV of the
Competition and Consumer Act 2010 (and any
17
other provision of the Act so far as it applies in relation to
18
Part IV) and the Competition Code of each State and
19
Territory;
20
(f) the
Work Health and Safety Act 2011;
21
(ge) each State or Territory OHS law (within the meaning of the
22
Fair Work Act);).
23
(h) Part 7.8 of the
Criminal Code (causing harm to, and
24
impersonation and obstruction of, Commonwealth public
25
officials) and any other provision of the Code so far as it
26
applies in relation to that Part.
27
Wider criminal findings
28
(3) A
wider criminal finding is a finding (other than a designated
29
finding) in any criminal proceedings against a person that the
30
person has committed an offence against any law of the
31
Commonwealth or a State or Territory.
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Disqualification from office
Schedule 1
1
9D Findings against part of an organisation
2
A finding made against a part of an organisation is taken for the
3
purposes of this Act to have been made against the organisation.
4
33 Section 181
5
After “Chapter 3).”, insert “This Chapter also deals with orders
6
disqualifying a person from holding office in organisations.”.
7
4 Section 181
8
Omit:
9
Part 4 sets out the circumstances in which people are disqualified
10
from holding, or being elected to hold, office in organisations.
11
substitute:
12
Part 4 sets out circumstances in which a person becomes ineligible
13
to be elected to, or to hold, office in an organisation. It also
14
provides for applications to be made to the Federal Court for orders
15
disqualifying a person from holding office in an organisation. It is
16
an offence for a person to be a candidate for election to, or hold or
17
act as if they hold, office in an organisation in these circumstances.
18
5 Division 1 of Part 4 of Chapter 7 (heading)
19
Repeal the heading, substitute:
20
Division 1—Preliminary
21
46 At the end of section 210
22
Add:
23
This Part also allows applications to be made by the
24
Commissioner, the Minister and certain other persons for a Federal
25
Court order disqualifying a person from holding office in an
26
organisation (see Division 3).
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Schedule 1 Disqualification from office
1
A It is an offence for a person who is disqualified may commit an
2
offence if the person isfrom holding office in an organisation to be
3
a candidate for, or holdshold or actsact as if the person holdsthey
4
hold, office in an organisation (see Division 4).
5
57 At the end of Division 1 of Part 4 of Chapter 7
6
Add:
7
210A Application of this Part to branches
8
(1) In this Part:
9
(a) a reference to an office in, or holding an office in, an
10
organisation includes an office in, or holding an office in, a
11
branch of an organisation; and
12
(b) a reference to an officer of an organisation includes an officer
13
of a branch of an organisation.
14
(2) This section does not limit subsection 9(2).
15
68 After paragraph 212(a)
16
Insert:
17
(aa) an offence under a law of the Commonwealth or, a State or
18
Territory, or another country, punishable on conviction by
19
imprisonment for life or a period of 5 years or more; or
20
79 Subsection 215(1)
21
Omit “an election, or to be elected or appointed, to an office”, substitute
22
“election to, or to hold, an office”.
23
810 At the end of subsection 215(1)
24
Add:
25
Note:
The person is also not eligible to be a candidate for election to, or to
26
hold, an office in a branch of an organisation (see subsection 9(2) and
27
section 210A).
28
911 At the end of Part 4 of Chapter 7
29
Add:
6
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Disqualification from office
Schedule 1
1
Division 3—Disqualification orders
2
221 Simplified outline of this Division
3
The Commissioner, the Minister or another person with a sufficient
4
interest may apply to the Federal Court for an order disqualifying a
5
person from holding office in an organisation, on the grounds set
6
out in this Division.
7
222 Disqualification orders
8
(1) Any of the following may apply for an order under this section, if
9
the applicant considers that any one or more of the grounds for
10
disqualification set out in section 223 apply in relation to a person:
11
(a) the Commissioner;
12
(b) the Minister;
13
(c) a person with a sufficient interest.
14
(2) The Federal Court may make an order disqualifying the person
15
from holding office in an organisation, for the period the Court
16
considers appropriate, if the Court:
17
(a) is satisfied that a ground for disqualification set out in the
18
application applies in relation to the person; and
19
(b) does not consider that it would be unjust to disqualify the
20
person, having regard to:
21
(i) the nature of the matters constituting the ground; and
22
(ii) the circumstances and the nature of the person’s
23
involvement in the matters constituting the ground; and
24
(iii) any other matters the Court considers relevant.
25
(3) If the Court makes an order under subsection (2), the person is also
26
disqualified from holding office in a branch of an organisation for
27
the period.
28
(4) The Court must give the Commissioner a copy of the order.
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Schedule 1 Disqualification from office
1
223 Grounds for disqualification
2
Designated finding or contempt in relation to designated law
3
(1) A ground for disqualification applies in relation to a person if:
4
(a) a designated finding is made against the person; or
5
(b) the person is found to be in contempt of court in relation to
6
an order or injunction made under a designated law.
7
Wider criminal finding or contempt
8
Contempt in relation to law other than designated law
9
(2) A ground for disqualification applies in relation to a person if:
10
(a) either:
11
(i) a wider criminal finding is made against the person; or
12
(ii) the person is found to be in contempt of court in relation to
13
an order or injunction made under any law of the
14
Commonwealth or a State or Territory (other than a
15
designated law); and
16
(b) the person engaged in the conduct to which the finding
17
relates in the course of (or purportedly in the course of)
18
performing functions in relation to any organisation.
19
Multiple failures to prevent contraventions etc. by organisation
20
(3) A ground for disqualification applies in relation to a person if:
21
(a) 2 of anymore than one of the following findings areis made
22
against any organisation in relation to conduct engaged in
23
while the person is an officer of the organisation:
24
(i) a designated finding;
25
(ii) a wider criminal finding;
26
(iii) a finding that the organisation is in contempt of court in
27
relation to an order or injunction made under any law of
28
the Commonwealth or a State or Territorya designated
29
law; and
30
(b) the person failed to take reasonable steps to prevent the
31
conduct.
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Schedule 1
1
Corporate impropriety
2
(4) A ground for disqualification applies in relation to a person if:
3
(a) the person is found, in any criminal or civil proceedings
4
against the person, to have committed an offence against, or
5
contravened, a provision of Division 1 of Part 2D.1 of the
6
Corporations Act 2001 (general duties of officers of
7
corporations); or
8
(b) the person becomes disqualified from managing corporations
9
under Part 2D.6 of the
Corporations Act 2001.
10
Not fit and proper
11
(5) A ground for disqualification applies in relation to a person if,
12
having regard to any events mentioned in subsection (6), the
13
person is not a fit and proper person to hold office in an
14
organisation.
15
(6) For the purposes of subsection (5), the events are the following:
16
(a) the person is refused an entry permit, or an entry permit held
17
by the person is revoked or suspended, under Part 3-4 of the
18
Fair Work Act;
19
(b) the person is refused a WHS entry permit, or a WHS entry
20
permit held by the person is revoked or suspended, under Part
21
7 of the
Work Health and Safety Act 2011;
22
(c) the person is refused an entry permit (however described), or
23
any such permit held by the person is revoked or suspended,
24
under a State or Territory OHS law (within the meaning of
25
the Fair Work Act);
26
(d) in any criminal or civil proceedings against the person, or in
27
any action against the person by an agency of the
28
Commonwealth or a State or Territory, the person is found to
29
have engaged in conduct involving fraud, dishonesty,
30
misrepresentation, concealment of material facts or a breach
31
of duty;
32
(e) in any criminal proceedings against the person, the person is
33
found to have :
34
(i) engaged in conduct involving the intentional use of
35
violence towards another person, the intentional causing
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Schedule 1 Disqualification from office
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of death or injury to another person or the intentional
2
damaging or destruction of property; or
3
(f) any other event the Court considers relevant.
4
(ii) committed an offence against a law of the
5
Commonwealth or a State or Territory that is punishable
6
by imprisonment for 2 years or more.
7
Division 4—Offences in relation to standing for or holding
8
office etc. while disqualified
9
224 Simplified outline of this Division
10
A person who is disqualified from holding office in an organisation
11
may commit an offence if the person is a candidate for, or holds or
12
acts as if the person holds, office in an organisation.
13
225 Definition of disqualified from holding office in an organisation
14
A person is
disqualified from holding office in an organisation if
15
the person is:
16
(a) not eligible to be a candidate for election to, or to hold, an
17
office in an organisation under subsection 215(1); or
18
(b) disqualified from holding office in an organisation under an
19
order made under section 28N28M or 222.
20
Note:
The person is also disqualified from holding office in a branch of an
21
organisation (see subsections 9(2), 28N28M(2) and 222(3)).
22
226 Offences
23
(1) A person commits an offence if:
24
(a) the person is a candidate for election to an office in an
25
organisation; and
26
(b) the person is disqualified from holding office in an
27
organisation.
28
Penalty: 100 penalty units or imprisonment for 2 years, or both.
29
(2) A person commits an offence if:
10
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Disqualification from office
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(a) the person is an officer of an organisation; and
2
(b) the person is disqualified from holding office in an
3
organisation; and
4
(c) if the person is disqualified from holding office in an
5
organisation under subsection 215(1) and was holding an
6
office in the organisation at the time of the conviction
7
referred to in that subsection—the person has ceased to hold
8
that office under subsection 215(2) or (3), 216(3) or 217(3).
9
Note:
Paragraph (2)(c) has the effect that a person who is holding office
10
at the time the person is convicted of a prescribed offence does
11
not commit an offence during the period the person is allowed to
12
continue holding the office in accordance with sections 215, 216
13
and 217.
14
Penalty: 100 penalty units or imprisonment for 2 years, or both.
15
(3) A person commits an offence if:
16
(a) the person is disqualified from holding office in an
17
organisation; and
18
(b) the person:
19
(i) exercises the capacity to significantly affect the
20
financial standing or other affairs of an organisation or a
21
part of an organisation; or
22
(ii) gives directions (not including advice given by the
23
person in the proper performance of functions that relate
24
to the person’s professional capacity) to the committee
25
of management of an organisation or a part of an
26
organisation; and
27
(c) if subparagraph (b)(ii) applies—the person:
28
(i) knows that the committee of management of the
29
organisation or part is accustomed to act in accordance
30
with the person’s directions; or
31
(ii) intends that the committee of management will do so.
32
Penalty: 100 penalty units or imprisonment for 2 years, or both.
33
(4) Strict liability applies to the physical element of the offences
34
against subsections (1), (2) and (3), that a person is disqualified
35
from holding office in an organisation, if the person is disqualified
36
under an order made under section 28N28M or 222.
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Schedule 1 Disqualification from office
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(5) Nothing in this section affects the powers of the Federal Court in
2
relation to punishment of contempt of the Court.
3
1012 Subsection 255E(2)
4
Repeal the subsection, substitute:
5
(2) The Commissioner must refuse to grant the application if the
6
person is disqualified from holding office in an organisation.
7
1113 Section 307A
8
Repeal the section.
9
1214 At the end of subsection 308(1)
10
Add:
11
Note:
Section 222 also allows the Commissioner, Minister, or a person with
12
a sufficient interest to apply for a disqualification order in relation to a
13
person’s contravention of a civil penalty provision of this Act, among
14
other matters.
15
1315 Paragraph 324(2)(g)
16
Omit “or to be elected or appointed”, substitute “to, or to hold, an office
17
in an organisation”.
18
1416 Subsection 325(2)
19
Omit “or to be elected or appointed”, substitute “for election to, or to
20
hold, an office in an organisation,”.
21
1517 Application of amendments
22
Definition of prescribed offence
23
(1)
Despite paragraph 213(a) of the
Fair Work (Registered Organisations)
24
Act 2009 (the
Act), Part 4 of Chapter 7 of the Act does not apply in
25
relation to a conviction for a prescribed offence within the meaning of
26
paragraph 212(aa) of the Act if:
27
(a) the offence is not a prescribed offence within the meaning of
28
another paragraph of section 212 of the Act; and
29
(b) the conviction occurredis in relation to conduct engaged in
30
before commencement.
12
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Disqualification from office
Schedule 1
1
Section 222 disqualification
2
(2)
In satisfying itself as to whether a ground for disqualification set out in
3
section 223 of the Act as amended by this Schedule applies in relation
4
to a person, the Federal Court may only have regard to the following:
5
(a) for the ground mentioned in subsection 223(1) or (2)—a
6
finding made in relation to conduct engaged in:
7
(i) after commencement; and
8
(ii) for paragraph 223(1)(b) or subparagraph 223(2)(a)(ii)—
9
in relation to an order or injunction made after
10
commencement;
11
and the matters mentioned in paragraph 223(2)(b);
12
(b) for the ground mentioned in subsection 223(3)—a finding
13
made in relation to conduct engaged in:
14
(i) after commencement; and
15
(ii) for subparagraph 223(3)(a)(iiiii)—in relation to an order
16
or injunction made after commencement;
17
and a failure, after commencement, to take steps as
18
mentioned in the subsection;
19
(c) for the ground mentioned in subsection 223(4)—a finding
20
made in relation to conduct engaged in, or a disqualification
21
in relation to conduct engaged in or an event occurring, after
22
commencement;
23
(d) for the ground mentioned in subsection 223(5):
24
(i) an event occurring after commencement; and
25
(ii) for an event mentioned in paragraph 223(6)(d) or (e)—a
26
finding made in relation to conduct engaged in after
27
commencement.
28
(3)
However, the Court may have regard to matters occurring before or
29
after commencement for the purposes of paragraph 222(2)(b) of the Act
30
as amended by this Schedule.
31
Section 307A disqualification
32
(4)
Section 307A of the Act, as in force immediately before its repeal by
33
this Schedule, continues in effect, after commencement and despite that
34
repeal, in relation to conduct engaged in before commencement.
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Schedule 1 Disqualification from office
1
(5)
A reference in section 225 of the Act as amended by this Schedule to an
2
order made under section 222 includes a reference to an order made
3
under section 307A of the Act, including that section as continued in
4
effect by subitem (4).
5
Commencement
6
(6)
In this item:
7
commencement means the start of the day this item commences.
14
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Cancellation of registration and alternative orders
Schedule 2
1
Schedule 2—Cancellation of registration and
2
alternative orders
3
4
Fair Work (Registered Organisations) Act 2009
5
1 At the end of section 17
6
Add:
7
It is also possible for the Federal Court to make orders instead of
8
cancellation of registration, on application under Division 2 of Part
9
3. These orders might include disqualification of certain officers,
10
alteration of eligibility rules to exclude certain members and
11
suspension of rights and privileges of the organisation and
12
members.
13
2 Subsections 19(4) and 20(2)
14
After “or its members”, insert “or officers”.
15
3 Part 3 of Chapter 2 (heading)
16
Repeal the heading, substitute:
17
Part 3—Cancellation of registration and alternative
18
orders
19
20
4 Sections 28 and 29
21
Repeal the sections, substitute:
22
Division 1—Simplified outline of this Part
23
27A Simplified outline of this Part
24
The Federal Court or the FWC may cancel the registration of an
25
organisation.
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Schedule 2 Cancellation of registration and alternative orders
1
The grounds for an application to the Federal Court are set out in
2
Division 3. Broadly, the grounds relate to corrupt or unlawful
3
conduct.
4
The same grounds may also be the basis for an application to the
5
Federal Court for alternative orders. The alternative orders might
6
be made in situations involving actions of particular officers or
7
members, or where the Court otherwise considers it appropriate.
8
An applicant can apply to the Court for cancellation or for
9
alternative orders (or both). If an applicant applies for cancellation
10
(or for both cancellation and alternative orders) and the Court finds
11
that the ground for the application is established, the Court may
12
consider making alternative orders instead of cancellation only if
13
the organisation satisfies the Court that cancellation would be
14
unjust.
15
The alternative orders include disqualification of officers,
16
alteration of eligibility rules to exclude certain members and
17
suspension of rights and privileges of the organisation and
18
members.
19
The FWC also has the power to cancel the registration of an
20
organisation on certain, mainly technical, grounds, either on
21
application or on its own motion.
22
Division 2—Applications to the Federal Court for orders
23
under this Part
24
28 Application for cancellation of registration
25
Any of the following persons may apply to the Federal Court for an
26
order cancelling the registration of an organisation, if the person
27
considers that any one or more of the grounds in Division 3 exists
28
in relation to the organisation:
29
(a) the Commissioner;
30
(b) the Minister;
31
(c) a person with a sufficient interest.
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28A Application for alternative orders
2
Any of the following persons may apply to the Federal Court for
3
any one or more of the orders under Division 5 in relation to an
4
organisation, if the person considers that any one or more of the
5
grounds in Division 3 exists in relation to the organisation:
6
(a) the Commissioner;
7
(b) the Minister;
8
(c) a person with a sufficient interest.
9
28B Multiple applications
10
(1) Nothing in this Part prevents a person applying under section 28
11
for cancellation of registration and under section 28A for
12
alternative orders in relation to the same organisation.
13
(2) If a person does so, the Court must deal with the applications
14
together.
15
Division 3—Grounds for Federal Court orders
16
28C Ground—corrupt conduct of officersaffairs of organisation or
17
part of organisation
18
(1) For the purposes of an application under section 28 or 28A, a
19
ground exists in relation to an organisation if a substantial number
20
of the officers of the organisation or a part of the organisation, or 2
21
or more senior officers of the organisation or a part of the
22
organisation, have:
23
(a) engaged in conduct that involved, or was engaged in for the
24
purposes of, abusing their position as officers; or
25
(b) engaged in conduct that perverted, or was engaged in for the
26
purposes of perverting, the course of justice; or
27
(c) engaged in conduct that, having regard to their duties and
28
powers as officers, involved, or was engaged in for the
29
purposes of, corruption of any other kind; or
30
(d) of the organisation or a part of the organisation have acted in
31
affairs of the organisation or a part of the organisation in their
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own interests rather than in the interests of the members of
2
the organisation or part as a whole; or
3
(e) conducted b) affairs of the organisation or a part of the
4
organisation have been or are being conducted in a manner
5
that is:
6
(i) oppressive or unfairly prejudicial to, or unfairly
7
discriminatory against, a member or a class of members;
8
or
9
(ii) contrary to the interests of the members of the
10
organisation or part as a whole.; or
11
(2 (c)
affairs of the organisation or a part of the organisation
12
have been or are being conducted in a manner resulting in the
13
organisation or part, or officers or members of the
14
organisation or part, having a record of not complying with
15
designated laws.
16
(2) In working out whether there is a record for the purposes of
17
paragraph (1)(c), the Court must have regard to the incidence and
18
age of occurrences of non-compliance with designated laws by the
19
organisation or part or officers or members of the organisation or
20
part.
21
(3) For the purposes of this section (and without altering meaning
22
elsewhere in this Act), the
affairs of an organisation or a part of an
23
organisation include:
24
(a) the internal management, governance and proceedings of the
25
organisation or part; and
26
(b) its business model, including the way it is structured and how
27
it operates to achieve its aims; and
28
(c) its transactions and dealings with other persons.
29
(4) In considering how affairs of the organisation or a part of the
30
organisation have been or are being conducted, the Court may have
31
regard to both acts and omissions.
32
(5) A finding of fact in proceedings in any court is admissible as prima
33
facie evidence of the fact for the purposes of an application made
34
on the ground set out in this section.
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28D Ground—multiple findings against organisation
2
For the purposes of an application under section 28 or 28A, a
3
ground exists in relation to an organisation if 2 of any of the
4
following findings have been made against the organisation:
5
(a) a designated finding;
6
(b) a wider criminal finding.
7
28E28D Ground—serious offence committed by organisation
8
For the purposes of an application under section 28 or 28A, a
9
ground exists in relation to an organisation if:
10
(a) the organisation is found, in criminal proceedings against the
11
organisation, to have committed an offence against a law of
12
the Commonwealth or a State or Territory; and
13
(b) the offence is punishable on conviction by a penalty for a
14
body corporate of (or equivalent to) at least 1,500 penalty
15
units.
16
28F28E Ground—multiple findings against members
17
For the purposes of an application under section 28 or 28A, a
18
ground exists in relation to an organisation if designated findings
19
have been made against a substantial number of the members of:
20
(a) the organisation; or
21
(b) a part of the organisation; or
22
(c) a class of members of the organisation.
23
28G28F Ground—non-compliance with orders or injunctions
24
(1) For the purposes of an application under section 28 or 28A, a
25
ground exists in relation to an organisation if:
26
(a) the organisation has failed to comply with an order or
27
injunction made under any law of the Commonwealth or a
28
State or Territorya designated law; or
29
(b) a substantial number of the members of:
30
(i) the organisation; or
31
(ii) a part of the organisation; or
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(iii) a class of members of the organisation;
2
have failed to comply with an order or injunction made under
3
a designated law.
4
(2) A finding of fact in proceedings in any court is admissible as prima
5
facie evidence of the fact for the purposes of an application made
6
on the ground set out in this section.
7
28H28G Ground—obstructive industrial action
8
(1) For the purposes of an application under section 28 or 28A, a
9
ground exists in relation to an organisation if:
10
(a) the organisation; or
11
(b) a substantial number of the members of:
12
(i) the organisation; or
13
(ii) a part of the organisation; or
14
(iii) a class of members of the organisation;
15
have organised or engaged in industrial action covered by
16
subsection (2).
17
(2) This subsection covers industrial action (other than protected
18
industrial action):
19
(a) that prevented, hindered or interfered with:
20
(i) the activities of a federal system employer; or
21
(ii) the provision of any public service by the
22
Commonwealth or a State or Territory or an authority of
23
the Commonwealth or a State or Territory; or
24
(b) that had, or is having or is likely to have, a substantial
25
adverse effect on the safety, health or welfare of the
26
community or a part of the community.
27
(3) A finding of fact in proceedings in any court is admissible as prima
28
facie evidence of the fact for the purposes of an application made
29
on the ground set out in this section.
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28J28H Application of grounds in relation to amalgamated
2
organisations
3
(1) For the purposes of considering whether a ground set out in this
4
Division exists in relation to an organisation that is an
5
amalgamated organisation:
6
(a) a reference to the organisation includes any de-registered
7
organisation in relation to the amalgamation; and
8
(b) a reference to an officer of the organisation includes a person
9
who was an officer of aany such de-registered organisation;
10
and
11
(c) a reference to conduct of an officer in relation to the
12
organisation includes conduct of the officer as an officer in
13
relation to aany such de-registered organisation.
14
(2) An expression defined for the purposes of Part 2 of Chapter 3 has
15
the same meaning in this section as it has in that Part.
16
Division 4—Cancellation of registration of an organisation
17
by the Federal Court
18
28K28J Order cancelling registration of an organisation
19
(1) If an application is made under section 28 for cancellation of the
20
registration of an organisation, the Federal Court must cancel the
21
registration if:
22
(a) the Court finds that a ground set out in the application is
23
established; and
24
(b) the organisation does not satisfy the Court that it would be
25
unjust to cancel its registration, having regard to:
26
(i) the nature of the matters constituting the ground; and
27
(ii) the action (if any) that has been taken by or against the
28
organisation or its members or officers in relation to
29
those matters; and
30
(iii) the best interests of the members of the organisation as a
31
whole; and
32
(iv) any other matters the Court considers relevant.
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Note 1:
If the organisation satisfies the Court that it would be unjust to cancel
2
its registration, the Court may decide instead to make any of the orders
3
under Division 5. The Court may do this whether or not an application
4
for any of those orders has been made under section 28A.
5
Note 2:
See Division 7 for the effect of cancellation.
6
(2) The organisation must be given an opportunity of being heard by
7
the Court.
8
28L28K Orders additional to cancelling registration under section
9
28K28J
10
If the Federal Court cancels the registration of an organisation
11
under section 28K28J, the Court may, by order, do either or both of
12
the following:
13
(a) direct that an application by the former organisation for
14
registration as an organisation is not to be dealt with under
15
this Act before the end of a specified period;
16
(b) direct that an application for the registration of an
17
organisation whose officers are the same, or substantially the
18
same, as the officers of the former organisation is not to be
19
dealt with under this Act before the end of a specified period.
20
Division 5—Alternative Federal Court orders
21
28M28L When the Federal Court may make alternative orders
22
(1) The Federal Court may make orders under this Division if:
23
(a) the Court finds that a ground set out in an application under
24
section 28 or 28A in relation to an organisation is
25
established; and
26
(b) if the Court is considering an application under section 28, or
27
an application under section 28A together with an application
28
under section 28—the organisation satisfies the Court that it
29
would be unjust to cancel the registration of the organisation.
30
(2) Before making an order under section 28N28M or 28P28N, or
31
exercising the power mentioned in paragraph 28Q28P(1)(a) in
32
relation to only part of an organisation or only some of its
33
members, the Court must be satisfied that:
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(a) the ground set out in the application is established wholly or
2
mainly because of the conduct of:
3
(i) officers of a particular part of the organisation; or
4
(ii) members of a particular part of the organisation or a
5
particular class of members of the organisation; and
6
(b) it would not be unjust to make the order, or exercise the
7
power in that way, having regard to:
8
(i) the circumstances and nature of the officers’ or
9
members’ involvement in the matters constituting the
10
ground; and
11
(ii) any other matters the Court considers relevant.
12
(3) Before exercising the power mentioned in paragraph 28Q28P(1)(a)
13
in relation to the whole of an organisation or all of its members, the
14
Court must be satisfied that it would not be unjust to exercise the
15
power in that way, having regard to:
16
(a) the nature of the matters constituting the ground; and
17
(b) any other matters the Court considers relevant.
18
(4) The organisation must be given an opportunity of being heard by
19
the Court.
20
28N28M Order—disqualification of certain officers
21
(1) The Federal Court may make an order disqualifying the officers
22
mentioned in subparagraph 28M28L(2)(a)(i) from holding office in
23
an organisation, for the period the Court considers appropriate.
24
(2) If the Court does so, the officers are also disqualified from holding
25
office in a branch of an organisation for the period.
26
(3) The Court must give the Commissioner a copy of the order.
27
28P28N Order—exclusion of certain members
28
(1) The Federal Court may make an order:
29
(a) determining alterations of the eligibility rules of the
30
organisation so as to exclude from eligibility for membership
31
of the organisation persons belonging to the part of the
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organisation, or the class of members, mentioned in
2
subparagraph 28M28L(2)(a)(ii); or
3
(b) if persons belonging to such a part or class are eligible for
4
membership under an agreement of the kind referred to in
5
section 151—declaring that the persons are excluded from
6
eligibility for membership despite anything in the agreement.
7
(2) An alteration of rules made under this section takes effect on the
8
date of the order or on such other day as is specified in the order.
9
(3) If the Court makes an order under this section, the Court may also,
10
by order, prohibit the organisation, for a specified period, from
11
seeking consent under section 158 to an alteration of the
12
organisation’s eligibility rules that would have the effect of
13
restoring eligibility to any persons or class of persons excluded by
14
the order under this section.
15
28Q28P Order—suspension of rights and privileges etc. and later
16
reconsideration of question of cancellation or alternative
17
orders
18
Powers to suspend rights, privileges etc.
19
(1) The Federal Court may, by order, exercise any of the following
20
powers:
21
(a) the power to suspend, to the extent specified in the order, any
22
of the rights, privileges or capacities of the organisation or a
23
part of the organisation, or of all or any of its members, as
24
such members, under this Act, the Fair Work Act or any
25
other Act, under modern awards or orders made under this
26
Act, the Fair Work Act or any other Act or under enterprise
27
agreements;
28
(b) the power to give directions as to the exercise of any rights,
29
privileges or capacities that have been suspended;
30
(c) the power to make provision restricting the use of the funds
31
or property of the organisation or a part of the organisation,
32
and for the control of the funds or property for the purpose of
33
ensuring observance of the restrictions.
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(2) An order made in the exercise of a power under this section has
2
effect despite anything in the rules of the organisation or a part of
3
the organisation.
4
(3) An order made in the exercise of a power under this section:
5
(a) may be revoked by the Court, by order, on application by a
6
party to the proceedings; and
7
(b) unless sooner revoked, ceases to be in force on the day
8
specified in the order.
9
Reconsideration of application
10
(4) If the Court exercises a power under this section in relation to an
11
application under section 28 or 28A (or both), the Court must
12
reconsider the application:
13
(a) by the time the orders made under this section cease to be in
14
force; or
15
(b) on application by a party to the proceeding before that time,
16
if the Court considers that it is just to reconsider the
17
application under section 28 or 28A before that time having
18
regard to any evidence given in relation to observance or
19
non-observance of any order and any other relevant
20
circumstances.
21
Division 6—Cancellation of registration of an organisation
22
by the FWC
23
5 At the end of section 30
24
Add:
25
Note:
See Division 7 for the effect of cancellation.
26
6 Before section 31
27
Insert:
28
Division 7—Effect of cancellation of registration
29
7 ParagraphBefore paragraph 158(10)(a)
30
After “Insert:
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(aa) determined by the Federal Court under”, insert “ section
2
28P28N; or”.
3
8 Section 343
4
Before “The”, insert “(1)”.
5
9 At the end of section 343
6
Add:
7
(2) Despite subsection (1), the Minister’s functions or powers under
8
the following provisions cannot be delegated:
9
(a) section 28;
10
(b) section 28A;
11
(c) section 222;
12
(d) subsection 323(1).
13
10 Paragraph 343B(2)(a)
14
Repeal the paragraph, substitute:
15
(a) section 28 or 28A;
16
11 Application of amendments
17
(1)
In finding whether a ground set out in an application made under
18
section 28 or 28A of the
Fair Work (Registered Organisations) Act
19
2009 (the
Act) as amended by this Schedule is established, the Federal
20
Court may only have regard to the following:
21
(a) for the ground set out in section 28C of the Act—conduct
22
engaged in after commencement;
23
(b) for the ground set out in section 28D or 28Eof the Act—a
24
finding made in relation to conduct engaged in after
25
commencement;
26
(c) for the ground set out in section 28F28E of the Act—findings
27
made in relation to conduct engaged in after commencement;
28
(d) for the ground set out in section 28G28F of the Act—failures
29
to comply with orders or injunctions made after
30
commencement;
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(e) for the ground set out in section 28H28G of the Act—
2
industrial action organised or engaged in after
3
commencement.
4
(2)
However, the Court may have regard to matters occurring before or
5
after commencement for the purposes of subparagraphs
6
28K28J(1)(b)(iv) and 28M28L(2)(b)(ii), and paragraph 28M28L(3)(b),
7
of the Act as amended by this Schedule.
8
(3)
Sections 28 and 29 of the Act, as in force immediately before
9
commencement, continue in effect, after commencement and despite the
10
amendments made by this Schedule, in relation to:
11
(a) conduct engaged in before commencement; and
12
(b) conduct engaged in before or after commencement in relation
13
to an order or injunction made before commencement.
14
(4)
For the purposes of the operation of sections 28 and 29 of the Act as
15
continued in effect by subitem (3), the amendments made by this
16
Schedule are taken not to have been made.
17
(5)
In this item:
18
commencement means the start of the day this item commences.
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1
Schedule 3—Administration of dysfunctional
2
organisations etc.
3
4
Fair Work (Registered Organisations) Act 2009
5
1 Section 6
6
Insert:
7
administrator for an organisation or a part of an organisation:
8
(a) means a person appointed as administrator for the
9
organisation or part in accordance with a scheme approved
10
under subsection 323A(1); and
11
(b) includes any interim administrator appointed for the time
12
being by the Federal Court.
13
books includes:
14
(a) a register; and
15
(b) any other record of information; and
16
(c) financial reports or financial records, however compiled,
17
recorded or stored; and
18
(d) a document.
19
financial misconduct includes the following:
20
(a) a contravention of a provision of Division 2 of Part 2 of
21
Chapter 9 (general duties in relation to the financial
22
management of organisations);
23
(b) misuse of funds;
24
(c) false accounting;
25
(d) failure to fulfil duties in relation to financial reporting.
26
part of an organisation includes:
27
(a) a branch or part of a branch of the organisation; and
28
(b) a collective body of the organisation or a branch of the
29
organisation.
28
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1
2 Subsection 280(6)
2
Repeal the subsection.
3
3 Section 317
4
After:
5
Part 2 contains provisions validating certain invalidities in relation
6
to registered organisations.
7
insert:
8
Part 2A provides for applications to be made to the Federal Court
9
for a declaration in relation to an organisation or any part of it that
10
is not functioning effectively. If a declaration is made, the Federal
11
Court may approve a scheme to resolve the matters to which
12
declaration relates, including a scheme for the administration of the
13
organisation or a part of it.
14
4 Section 323
15
Repeal the section, substitute:
16
Part 2A—Dysfunctional organisations etc.
17
18
323 Declaration of dysfunction, misconduct etc. or vacancy in offices
19
(1) Any of the following may apply to the Federal Court for any one or
20
more of the declarations set out in subsection (3), if the applicant
21
considers that circumstances mentioned in a paragraph of that
22
subsection exist in relation to an organisation:
23
(a) the Commissioner;
24
(b) the Minister;
25
(c) the organisation;
26
(d) a member of the organisation;
27
(e) any other person having a sufficient interest in the
28
organisation.
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(2) The Federal Court may make the declaration if the Court is
2
satisfied that the circumstances exist in relation to the organisation.
3
(3) The declarations are the following:
4
(a) that an organisation or a part of an organisation has ceased to
5
exist or function effectively and there are no effective means
6
under the rules of the organisation or a part of the
7
organisation by which the organisation or part can be
8
reconstituted or enabled to function effectively;
9
(b) that one or more officers of an organisation or a part of an
10
organisation have engaged in financial misconduct in relation
11
to carrying out their functions or in relation to the
12
organisation or a part of the organisation;
13
(c) that a substantial number of the officers of an organisation or
14
a part of an organisation have, in affairs of the organisation
15
or part, acted in their own interests rather than in the interests
16
of the members of the organisation or part as a whole;
17
(d) that affairs of an organisation or a part of an organisation are
18
being conducted in a manner that is:
19
(i) oppressive or unfairly prejudicial to, or unfairly
20
discriminatory against, a member or a class of members;
21
or
22
(ii) contrary to the interests of the members of the
23
organisation or part as a whole;
24
(e) that an office or position in an organisation or a part of an
25
organisation is vacant and there is no effective means under
26
the rules of the organisation or part to fill the office or
27
position.
28
(4) For the purposes of this section and without limiting the
29
circumstances in which an organisation or a part of an organisation
30
ceases to function effectively, an organisation or a part of an
31
organisation is taken to have ceased to function effectively if the
32
Court is satisfied that officers of the organisation or part have:
33
(a) on multiple occasions, contravened designated laws; or
34
(b) misappropriated funds of the organisation or part; or
35
(c) otherwise repeatedly failed to fulfil their duties as officers of
36
the organisation or part of the organisation.
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323A Federal Court may make certain orders if declaration made
2
under section 323
3
(1) If the Federal Court makes a declaration under section 323 in
4
relation to an organisation or a part of an organisation, the Court
5
may, by order, approve a scheme for the taking of action by the
6
organisation or a part of the organisation, or by an officer or
7
officers of the organisation or a part of the organisation, to resolve
8
the circumstances set out in the declaration.
9
(2) Without limiting subsection (1), a scheme may provide for any of
10
the following:
11
(a) the appointment of an administrator for the organisation or
12
part;
13
(b) reports to be given to the Court under the scheme;
14
(c) when the scheme begins and ends;
15
(d) when elections (if any) are to be held under the scheme.
16
(3) The Court must not make an order under this section unless it is
17
satisfied that the order would not do substantial injustice to the
18
organisation or any member of the organisation.
19
(4) If a scheme provides for its own end, the Court may only approve
20
the scheme if the scheme provides that it does not end unless the
21
Court is satisfied that circumstances set out in the declaration have
22
been resolved or no longer exist.
23
(5) If a scheme provides for an election for an office, the Court may
24
only approve the scheme if the scheme provides for the election to
25
be conducted by the AEC and in accordance with Chapter 7.
26
(6) If the Court approves a scheme under subsection (1), the Court
27
may give any ancillary or consequential directions it considers
28
appropriate, including but not limited to directions about the
29
matters mentioned in subsection (2).
30
323B Federal Court order has effect despite other provisions
31
An order or direction of the Federal Court under section 323A, and
32
any action taken by an administrator or other person in accordance
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1
with the order or direction, has effect despite anything in this Act,
2
the rules of the organisation or the part of the organisation to which
3
the order or direction relates and any previous order, direction or
4
exemption made under this Act.
5
323C Elections while under administration
6
Despite anything in the rules of an organisation or a part of an
7
organisation, or in any previous order, direction or exemption
8
made under this Act, any election for an office held while the
9
organisation or any part of it is under administration must be
10
conducted by the AEC.
11
323D Administrators—conflict of interest
12
Within 21 days after an administrator:
13
(a) acquires any interest, pecuniary or otherwise, that could
14
conflict with the proper performance of the administrator’s
15
duties; or
16
(b) becomes aware that any interest, pecuniary or otherwise, that
17
the administrator has, or is likely to acquire, could conflict
18
with the proper performance of his or her duties;
19
the administrator must notify the Federal Court, in writing, of that
20
interest.
21
323E Administrators—termination of appointment
22
The Federal Court may terminate the appointment of an
23
administrator at any time, including (but not limited to) if the
24
administrator has notified the Court of an interest under section
25
323D.
26
323F Functions of administrator
27
(1) While an organisation or a part of an organisation is under
28
administration, the administrator:
29
(a) has control of the property and affairs of the organisation or
30
part; and
31
(b) may manage that property and those affairs; and
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(c) may dispose of any of that property; and
2
(d) may perform any function, and exercise any power, that the
3
organisation or part, or any officers, could perform or
4
exercise if it were not under administration.
5
(2) Nothing in subsection (1) limits the generality of anything else in
6
it.
7
323G Officers etc. to help administrator
8
(1) This section applies in relation to the following persons:
9
(a) an officer or employee of an organisation under
10
administration;
11
(b) if a part of an organisation is under administration:
12
(i) an officer or employee of the organisation; and
13
(ii) an officer or employee of the part of the organisation;
14
(c) a person who, because of or following the appointment of an
15
administrator for an organisation or part of an organisation,
16
ceased to be an officer of the organisation or part.
17
(2) The person must:
18
(a) attend on the administrator at such times; and
19
(b) give the administrator such information about the
20
organisation’s or the part of the organisation’s business,
21
property, affairs and financial circumstances;
22
as the administrator reasonably requires.
23
(3) A person commits an offence of strict liability if the person does
24
not comply with subsection (2).
25
Penalty: 50120 penalty units or imprisonment for 12 months, or
26
both.
27
(4) Subsection (3) does not apply if the person has a reasonable
28
excuse.
29
(5) It is a reasonable excuse for a person to refuse or fail to give
30
information on the ground that to do so might tend to incriminate
31
the person or expose the person to a penalty.
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(6) This section does not affect the law relating to legal professional
2
privilege.
3
323H Rights to organisation’s books
4
(1) A person is not entitled, as against the administrator for an
5
organisation or a part of an organisation:
6
(a) to retain possession of books of the organisation or the part;
7
or
8
(b) to claim or enforce a lien on such books;
9
but such a lien is not otherwise prejudiced.
10
(2) Paragraph (1)(a) does not apply in relation to books of which a
11
secured creditor is entitled to possession otherwise than because of
12
a lien, but the administrator is entitled to inspect, and make copies
13
of, such books at any reasonable time.
14
(3) The administrator may give a person a written notice requiring the
15
person to deliver to the administrator, as specified in the notice,
16
specified books that are in the person’s possession.
17
(4) A notice under subsection (3) must specify a period of at least 3
18
business days as the period within which the notice must be
19
complied with.
20
(5) A person commits an offence of strict liability if the person does
21
not comply with a notice under subsection (3).
22
Penalty: 50120 penalty units or imprisonment for 12 months, or
23
both.
24
(6) Subsection (5) does not apply to the extent that the person is
25
entitled, as against the organisation or part and the administrator, to
26
retain possession of the books.
27
Note:
A defendant bears an evidential burden in relation to the matter in
28
subsection (6) (see subsection 13.3(3) of the
Criminal Code).
29
323J Remuneration determinations
30
(1) The Federal Court may make any orders it considers appropriate to
31
provide for and in relation to remuneration which the administrator
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for an organisation or a part of an organisation is entitled to receive
2
for necessary work properly performed by the administrator in
3
relation to the administration.
4
(2) If the order has the effect that the administrator is entitled to
5
receive remuneration worked out wholly or partly on a time-cost
6
basis, the order must include a cap on the amount of remuneration
7
worked out on a time-cost basis that the administrator is entitled to
8
receive.
9
(3) In making an order under this section, the Court must have regard
10
to whether the remuneration is reasonable, taking into account:
11
(a) the period during which the work is likely to be performed by
12
the administrator; and
13
(b) the complexity (or otherwise) of the work likely to be
14
performed by the administrator; and
15
(c) if the remuneration is worked out wholly or partly on a time-
16
cost basis—the time likely to be properly taken by the
17
administrator in performing the work; and
18
(d) any other matters the Court considers relevant.
19
323K Administrator not to be sued
20
An administrator, or a person acting under the direction of an
21
administrator, is not liable to an action or other proceeding for or in
22
relation to an act done, or omitted to be done, in good faith in the
23
performance or exercise, or the purported performance or exercise,
24
of any function or power of the administrator as an administrator
25
under this Part.
26
5 Paragraph 324(2)(p)
27
Omit “of Chapter 11”, substitute “or 2A of this Chapter”.
28
6 After paragraph 343B(2)(h)
29
Insert:
30
(ha) subsection 323(1);
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1
Schedule 4—Public interest test for
2
amalgamations
3
4
Fair Work (Registered Organisations) Act 2009
5
1 Section 6
6
Insert:
7
compliance record event has the meaning given by section 72E.
8
2 Section 34
9
Omit:
10
The 2 main elements of the amalgamation procedure are an
11
application to the FWC seeking approval for a ballot to be held on
12
the question of amalgamation, and the holding of a ballot
13
conducted by the Australian Electoral Commission.
14
substitute:
15
An amalgamation involves an application to the FWC seeking
16
approval for a ballot to be held on the question of amalgamation,
17
and the holding of a ballot conducted by the Australian Electoral
18
Commission.
19
Before an amalgamation can take effect, the FWC must decide
20
whether the amalgamation is in the public interest. The
21
amalgamation does not take effect if the FWC decides that it is not
22
in the public interest.
23
3 Section 34
24
After “amalgamated organisation)”, insert “, if the amalgamation takes
25
effect”.
26
4 Section 37
27
Repeal the section, substitute:
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37 Exercise of the FWC’s powers under this Part
2
(1) The powers of the FWC under this Part, other than under
3
Subdivision A of Division 6 (public interest test for
4
amalgamations), are exercisable only by the President, a Vice
5
President or a Deputy President.
6
(2) The powers of the FWC under Subdivision A of Division 6 are
7
exercisable only by a Full Bench.
8
5 Subsection 56(1)
9
Omit “Objection”, substitute “Except as provided by Subdivision A of
10
Division 6, objection”.
11
6 At the end of section 67
12
Add:
13
(4) Subsection (2) does not authorise the FWC to dispense with
14
deciding under section 72A whether the amalgamation is in the
15
public interest.
16
7 Before section 73
17
Insert:
18
Subdivision A—Public interest test for amalgamations
19
72A Decision whether amalgamation is in public interest
20
(1) Before fixing an amalgamation day under section 73 for a proposed
21
amalgamation, the FWC must decide whether the amalgamation is
22
in the public interest.
23
Note:
An amalgamation does not take effect if the FWC decides it is not in
24
the public interest (see section 72F).
25
(2) The FWC may make the decision at any time after an application
26
under section 43 or 44 is lodged with the FWC in relation to the
27
amalgamation.
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72B Hearings about public interest
2
(1) The FWC must:
3
(a) fix a time and place for hearing submissions in relation to the
4
matters mentioned in subsection 72D(1) (record of
5
compliance with the law); and
6
(b) promptly notify the existing organisations concerned in the
7
amalgamation of the time and place of the hearing; and
8
(c) promptly publish notice of the time and place of the hearing
9
on its website and in any other way the FWC considers
10
appropriate.
11
(2) If the matter is not concluded under subsection 72D(2), the FWC
12
must:
13
(a) fix a time and place for hearing submissions in relation to
14
whether the amalgamation is otherwise in the public interest;
15
and
16
(b) promptly notify the existing organisations of the time and
17
place of the hearing; and
18
(c) promptly publish notice of the time and place of the hearing
19
on its website and in any other way the FWC considers
20
appropriate.
21
72C Persons who may make submissions about public interest
22
(1) Submissions in relation to the matters mentioned in subsection
23
72D(1) (record of compliance with the law), and whether the
24
amalgamation is otherwise in the public interest, may be made by
25
any of the following persons:
26
(a) the existing organisations;
27
(b) any other organisation that represents the industrial interests
28
of employers or employees in the industry or industries
29
concerned or that may otherwise be affected by the
30
amalgamation;
31
(c) a body other than an organisation that represents the interests
32
of employers or employees in the industry or industries
33
concerned;
34
(d) the Commissioner;
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(e) the Minister;
2
(f) a Minister of a referring State (within the meaning of the Fair
3
Work Act), or of a Territory, who has responsibility for
4
workplace relations matters in the State or Territory;
5
(g) any other person with a sufficient interest in the
6
amalgamation.
7
(2) The FWC must:
8
(a) in considering the matters mentioned in subsection 72D(1)—
9
have regard to any submissions made by persons mentioned
10
in subsection (1) of this section in relation to those matters;
11
and
12
(b) if the matter is not concluded under subsection 72D(2)—have
13
regard to any other submissions made by persons mentioned
14
in subsection (1) of this section.
15
72D Matters to which the FWC must have regard
16
Record of compliance with the law
17
(1) In deciding whether the amalgamation is in the public interest, the
18
FWC must have regard to any compliance record events that have
19
occurred for each of the existing organisations.
20
(2) If, having regard to the incidence and age of compliance record
21
events for an existing organisation, the FWC considers that the
22
organisation has a record of not complying with the law, the FWC
23
must decide under section 72A that the amalgamation is not in the
24
public interest.
25
Other matters of public interest
26
(3) If the matter is not concluded under subsection (2), the FWC must,
27
in deciding whether the amalgamation is otherwise in the public
28
interest, have regard to the impact the amalgamation is likely to
29
have on:
30
(a) employees in the industry or industries concerned; and
31
(b) employers in the industry or industries concerned.
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Schedule 4 Public interest test for amalgamations
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(4) The FWC may have regard to any other matters it considers
2
relevant.
3
72E Compliance record events
4
Involving organisation or members
5
(1) A
compliance record event occurs for an organisation if:
6
(a) a designated finding or a wider criminal finding is made
7
against the organisation; or
8
(b) the organisation is found to be in contempt of court in
9
relation to an order or injunction made under any law of the
10
Commonwealth or a State or Territorya designated law; or
11
(c) the organisation, or a substantial number of the members of:
12
(i) the organisation; or
13
(ii) a part of the organisation; or
14
(iii) a class of members of the organisation;
15
organises or engages in industrial action covered by
16
subsection 28H28G(2).
17
Involving officers
18
(2) A
compliance record event also occurs for an organisation if:
19
(a) a designated finding is made against a person, if the person
20
was an officer of the organisation at the time of the conduct
21
to which the finding relates; or
22
(b) a wider criminal findingperson is found to be in contempt of
23
court in relation to an order or injunction made againstunder
24
any law of the Commonwealth or a personState or Territory,
25
if the person:
26
(i) was an officer of the organisation at the time of the
27
conduct to which the finding relates; and
28
(ii) engaged in the conduct in the course of (or purportedly
29
in the course of) performing functions in relation to the
30
organisation; or
31
(c) a person is found to be in contempt of court in relation to an
32
order or injunction made under any law of the
33
Commonwealth or a State or Territory, if the person:
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(i) was an officer of the organisation at the time of the
2
conduct to which the finding relates; and
3
(ii) engaged in the conduct in the course of (or purportedly
4
in the course of) performing functions in relation to the
5
organisation; or
6
(d (c)
a person becomes disqualified from holding office in an
7
organisation while he or she is an officer in the organisation.
8
72F Amalgamation not in public interest does not take effect
9
(1) If the FWC decides under section 72A that the amalgamation is not
10
in the public interest:
11
(a) the FWC must not fix an amalgamation day for the
12
amalgamation; and
13
(b) the amalgamation does not take effect.
14
(2) If the FWC decides under section 72A that the amalgamation is not
15
in the public interest at any time before the FWC approves the
16
submission of the amalgamation to ballot, then, despite any other
17
provision of this Part, the FWC must refuse to approve the
18
submission of the amalgamation to ballot.
19
Subdivision B—Amalgamation taking effect
20
8 Subsection 73(1)
21
After “takes effect”, insert “(if at all)”.
22
9 Subsection 73(2)
23
After “If”, insert “the FWC has decided under section 72A that the
24
amalgamation is in the public interest and”.
25
10 Paragraph 73(2)(c)
26
Repeal the paragraph, substitute:
27
(c) there are no proceedings of the kind mentioned in subsection
28
(2A) pending against any of the existing organisations
29
concerned in the amalgamation; and
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1
11 At the end of subsection 73(2)
2
Add:
3
Note:
An amalgamation does not take effect if the FWC decides it is not in
4
the public interest (see section 72F).
5
12 After subsection 73(2)
6
Insert:
7
(2A) For the purposes of paragraph (2)(c), the kind of proceedings are:
8
(a) criminal proceedings in relation to:
9
(i) a contravention of this Act, the Fair Work Act or any
10
other law of the Commonwealth; or
11
(ii) a breach of an order made under this Act, the Fair Work
12
Act or any other law of the Commonwealth; and
13
(b) civil proceedings for a contravention of a provision
14
mentioned in a subparagraph of paragraph (b) of the
15
definition of
designated finding in subsection 9C(1).
16
13 Application of amendments
17
(1)
Without limiting the application of the amendments made by this
18
Schedule, those amendments apply in relation to a proposed
19
amalgamation if, on the day this item commences, an amalgamation day
20
for the amalgamation has not been fixed under section 73 of the
Fair
21
Work (Registered Organisations) Act 2009.
22
(2)
To avoid doubt, subitem (1) applies regardless of whether an
23
application was lodged under section 43 or 44 of that Act in relation to
24
the amalgamation before this item commences.
25
(3)
A reference in the
Fair Work (Registered Organisations) Act 2009 to a
26
compliance record event includes an event that occurred before this
27
item commences.
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Schedule 5
1
Schedule 5—Minor and technical amendments
2
3
Fair Work (Registered Organisations) Act 2009
4
1 Section 6 (definition of Australian Accounting Standards)
5
Repeal the definition, substitute:
6
Australian Accounting Standards means the accounting standards
7
issued by the Australian Accounting Standards Board, as in force,
8
or applicable, from time to time, as modified by regulations made
9
for the purpose of this definition.
10
2 Section 6 (definition of Australian Auditing Standards)
11
Repeal the definition, substitute:
12
Australian Auditing Standards means the auditing and assurance
13
standards issued by the Australian Auditing and Assurance
14
Standards Board as in force, or applicable, from time to time.
15
3 Section 6 (paragraph (d) of the definition of authorised
16
official)
17
Repeal the paragraph, substitute:
18
(d) the Australian Building and Construction Commissioner;
19
4 Subdivision BB of Division 4 of Part 2 of Chapter 5
20
(heading)
21
Repeal the heading.
22
5 Subsection 329FA(1) (note)
23
Repeal the note, substitute:
24
Note:
Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the
25
Legislation Act 2003 do not apply to the direction (see regulations
26
made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that
27
Act).
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Schedule 5 Minor and technical amendments
1
6 Subparagraph 337A(1)(b)(iii)
2
Omit “referred to in subsection 15(1) of the
Building and Construction
3
Industry (Improving Productivity) Act 2016”.
4
7 Subparagraph 337A(1)(b)(iiia)
5
Omit “referred to in subsection 15(2) of the
Building and Construction
6
Industry (Improving Productivity) Act 2016”.
7
8 Paragraph 337BB(4)(d)
8
Repeal the paragraph, substitute:
9
(d) the Australian Building and Construction Commissioner;
10
9 Subsection 337C(1)
11
Omit “337A(4)”, substitute “337A(3)”.
12
10 Paragraph 343A(2)(b)
13
Omit “154C(1),”.
14
11 Paragraph 343A(3)(aa)
15
Repeal the paragraph.
16
12 Subsection 343B(2A)
17
Repeal the subsection, substitute:
18
(2A) Despite subsection (1), the Commissioner’s functions or powers
19
under the following provisions can only be delegated to a member
20
of the staff assisting the Commissioner who is an SES employee or
21
an acting SES employee:
22
(a) Subdivision A of Division 4 of Part 3 of Chapter 8
23
(registration of auditors);
24
(b) Division 4 of Part 2A of Chapter 9 (training in relation to
25
financial duties).
26
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