Fair Work Australia Amendment Rules 2011 (No. 1) (Cth)

Fair Work Australia Amendment Rules 2011 (No. 1)1

Fair Work Act 2009

I, GEOFFREY MICHAEL GIUDICE, President of Fair Work Australia, acting after consultation with the Members of Fair Work Australia, make the following Rules under subsection 609 (1) of the Fair Work Act 2009.

Dated 2 September 2011

GEOFFREY MICHAEL GIUDICE

President of Fair Work Australia

1Name of Rules

These Rules are the Fair Work Australia Amendment Rules 2011 (No. 1) .

2Commencement

These Rules commence on 12 September 2011.

3Amendment of Fair Work Australia Rules 2010

Schedule 1 amends the Fair Work Australia Rules 2010.

Schedule 1Amendments

(section 3)

[1]Paragraph 9.2 (d)

substitute
(d)
by posting the document in a prepaid envelope sent by Express Post or registered post to:
(i)
the residence, or usual place of business, of the individual intended to be served; or
(ii)
the secretary, at the registered office of the body corporate; or
(iii)
the secretary, at the office of the organisation or branch; or
(iv)
in a proceeding in which the individual, body corporate or organisation or branch has lodged an address for service — at that address;
provided that if service is by Express Post, the party serving the document must retain the barcode of the pre-paid envelope and produce it if required by FWA; or

[2]After rule 16A

insert

Part 4AUnlawful termination applications

16AAEmployer response to an unlawful termination application
A respondent to an Application for FWA to Deal with an Unlawful Termination Dispute (see Form F9) must, within 7 days of being served with the application, lodge with FWA and serve on the applicant a response to the application in accordance with Form F9A.

[3]Subrule 16B.1

omit second mention of
in accordance

[4]After rule 17

insert
17ARepresentation other than at conference or hearing
17A.1 For section 596 of the Act, and subject to a direction by FWA to the contrary, a party to a proceeding before FWA may be represented by a lawyer or paid agent for the purpose of preparing and/or lodging any written application (including an originating application) or written submission, corresponding with FWA or lodging any document with FWA.
17A.2 To remove doubt, nothing in this rule is to be taken as permitting a lawyer or paid agent to represent a party in a conference or hearing before FWA.
Note See section 596 of the Act for when FWA may permit a lawyer or paid agent to represent a party at a conference or hearing.

[5]Schedule 1

after

Application for FWA to Deal with an Unlawful Termination Dispute

s.773 FW Act

insert

Employer’s Response to Application for FWA to Deal with an Unlawful Termination Dispute

F9A

16AA

[6]Schedule 1

omit

Declaration of Employee Organisation in Support of Application for Approval of Enterprise Agreement

F18

s.185 FW Act

insert

Declaration of Employee Organisation in Relation to Application for Approval of Enterprise Agreement

F18

s.185 FW Act

[7]Schedule 1

omit

Notice for Employee Organisation to be Covered by Enterprise Agreement

F22

s.183 FW Act

[8]Schedule 2, Form F2, item 3

substitute

3.Why was the dismissal unfair?

[Using numbered paragraphs, give a description of the relevant facts and circumstances and specify why you say the dismissal was unfair. This should include your response to any reasons for dismissal given by the employer. Attach additional pages if necessary.]

[9]Schedule 2, Form F2

omit

Service requirements

This form will be served upon the Respondent by FWA.

insert

Service requirements

This form will be served upon the Respondent by FWA.

Notice to the Respondent

A respondent must, within 14 days of being served with this application, lodge with FWA and serve on the applicant a response to the application in accordance with Form F3. A copy of that form can be downloaded at 2, Form F3

omit

Date:
Signature:
Name:
Capacity/Position:
[If not signed by the Respondent or the Respondent is not a natural person.]

insert

Date:

Signature:

Name:

Capacity/Position:

[11]Schedule 2, Form F3

omit

Service requirements

This form must be lodged with FWA within the time specified or directed in correspondence from FWA and served on the Applicant as soon as practicable after it is lodged with FWA.

Note: Rules 9 and 10 deal with service.

insert

Service requirements

This Response (including any supporting documentation accompanying the Response) must be lodged with FWA and served on the Applicant within 14 days of being served with the Form F2 application or in accordance with any instruction given by FWA.

Serving a document means giving a copy of the document to the person being served in a manner provided for in the Fair Work Australia Rules 2010. Rule 9 sets out the ways in which a document can be served. For example, you can serve the Applicant by sending the document by Express Post (retaining the sender’s copy of the identifying barcode), registered post to the address specified for the Applicant in the application or by email to the email address for the Applicant specified in the application.

[12]Schedule 2, Form F4

omit

Date:
Signature:
Name:
Capacity/Position:
[If not signed by the Respondent or the Respondent is not a natural person.]

insert

Date:

Signature:

Name:

Capacity/Position:

[13]Schedule 2, Forms F5 and F6

omit

Date:
Signature:
Name:
Capacity/Position:
[If not signed by the Applicant or the Applicant is not a natural person.]

insert

Date:

Signature:

Name:

Capacity/Position:

[14]Schedule 2, Form F8, subitem 2.2

substitute

2.2 Description of alleged contravention(s):

[Using numbered paragraphs, give a description of the relevant facts and circumstances and specify how you say the section(s) specified in 2.1 have been contravened by the actions or conduct of the Respondent. This should include your response to any reasons for dismissal given by the employer. Attach additional pages if necessary.]

[15]Schedule 2, Form F8, subitem 3.2

substitute

3.2 If “Yes”:

•
Name of employee dismissed: [Insert name.]
•
Date employed: [Insert date.]
•
Date of dismissal: [Insert date.]

3.3 What were the reasons for termination, if any, given by the employer?

[Using numbered paragraphs, specify briefly the reason(s), if any, given by the employer for the termination. Attach any letter of termination and/or separation certificate given by the employer.]

[16]Schedule 2, Form F8, item 5

omit

[17]Schedule 2, Form F8

omit

Date:
Signature:
Name:
Capacity/Position:
[If not signed by the Applicant or the Applicant is not a natural person.]

insert

Date:

Signature:

Name:

Capacity/Position:

[18]Schedule 2, Form F8

omit

Service requirements

This application must be served on the Respondent as soon as practicable after it is lodged with FWA.

Note 1: A respondent must, within 14 days of being served, lodge with FWA and serve on the applicant a response to the application in accordance with Form F8A.

Note 2: Rules 9 and 10 deal with service.

insert

Service requirements

This form will be served upon the Respondent by FWA.

Notice to the Respondent

A Respondent must, within 7 days of being served with this application, lodge with FWA and serve on the Applicant a response to the application in accordance with Form F8A. A copy of that form can be downloaded at 2, Form F8A, items 1, 2 and 3

substitute
1.Do you agree with the information given in items 1 and 3 of the Form F8 application to which you are responding?
[
] Yes
[
] No
2.If “No”, please provide what you contend is the correct information.
3.What is your response to the alleged contravention?*
[Using numbered paragraphs, briefly specify your response to the contraventions alleged in item 2 of the application.]
4.If the Applicant alleges a dismissal, what were the reasons for dismissal?*
[Using numbered paragraphs, briefly specify the reasons. Attach any letter of dismissal and/or separation certificate.]
5.If the Applicant does not allege a dismissal, does the Respondent agree to participate in a conference to deal with the dispute? (see s.374 of the Fair Work Act 2009)
[
] Yes
[
] No

[20]Schedule 2, Form F8A

omit

Date:
Signature:
Name:
Capacity/Position:
[If not signed by the Respondent or the Respondent is not a natural person.]

insert

Date:

Signature:

Name:

Capacity/Position:

[21]Schedule 2, Form F8A

omit

Service requirements

This Response must be lodged with FWA and served on the Applicant within 14 days of being served with the Form F8 application or in accordance with any instruction given by FWA.

Note: Rules 9 and 10 deal with service.

insert

*An employer is not required to provide a response to questions 3 and 4 if the employer is concerned that the response may be self-incriminating.

Service requirements

This Response (including any supporting documentation accompanying the Response) must be lodged with FWA and served on the Applicant within 7 days of being served with the Form F8 application or in accordance with any instruction given by FWA.

[22]Schedule 2, Form F9, item 6

substitute

6.What is the alleged contravention of s.772(1)?

[Using numbered paragraphs, give a description of the relevant facts and circumstances and specify how you say the termination involved a contravention of s.772(1). This should include your response to any reasons for dismissal given by the employer. Attach additional pages if necessary.]
7.Section 723 provides that a person must not make an unlawful termination application in relation to conduct if the person is able to make a general protections court application in relation to the conduct (see Division 8 of Part 3-1). Do you consider that you cannot make a general protections court application?
[
] Yes
[
] No

[23]Schedule 2, Form F9

omit

Date:
Signature:
Name:
Capacity/Position:
[If not signed by the Applicant or the Applicant is not a natural person.]

insert

Date:

Signature:

Name:

Capacity/Position:

[24]Schedule 2, Form F9

omit

Service requirements

This form must be served on the Respondent as soon as practicable after it is lodged with FWA.

Note: Rules 9 and 10 deal with service.

insert

Service requirements

This form will be served on the Respondent by FWA.

Notice to the Respondent

A respondent must, within 7 days of being served with this application, lodge with FWA and serve on the Applicant a response to the application in accordance with Form F9A. A copy of that form can be downloaded at 2, after Form F9

insert

Form F9AEmployer’s Response to Application for FWA to Deal with an Unlawful Termination Dispute

(Rule 16AA Fair Work Australia Rules 2010)

IN FAIR WORK AUSTRALIA

FWA Matter No: C

[Insert FWA matter number appearing on the main application form.]

Applicant:

[Insert name of Applicant from main application.]

Respondent:

[Insert name of Respondent from main application. If that name is incorrect, insert correct name below.]

EMPLOYER’S RESPONSE TO APPLICATION FOR FWA TO DEAL WITH An unlawful termination dispute

Respondent (Employer)

Legal name:
Trading name:
ABN:
Address:
Suburb:	State:	Postcode:
Contact person:
Telephone:	Mobile:
Fax:	Email:

Respondent’s representative (if any)

Name:
Address:
Suburb:	State:	Postcode:
Contact person:
Telephone:	Mobile:
Fax:	Email:

1.Do you agree with the information given in items 1, 2 and 3 of the Form F9 application to which you are responding?
[
] Yes
[
] No
2.If “No”, please provide what you contend is the correct information:

3.What were the reasons for dismissal?

[Using numbered paragraphs, briefly specify the reasons. Attach any letter of dismissal and/or separation certificate.]
4.What is your response to the alleged contravention(s) of s.772(1)?*
[Using numbered paragraphs, briefly specify your response to the contraventions alleged in item 6 of the application.]

Date:

Signature:

Name:

Capacity/Position:

*An employer is not required to provide a response to question 4 if the employer is concerned that the response may be self-incriminating.

Service requirements

This Response (including any supporting documentation accompanying the Response) must be lodged with FWA and served on the Applicant within 7 days of being served with the Form F9 application or in accordance with any instruction given by FWA.

[26]Schedule 2, Form F10

omit

Service requirements

This application must be served on the named Respondent(s) to the dispute as soon as practicable after the document is lodged with FWA.

Note: Rules 9 and 10 deal with service.

insert

Service requirements

This application (including any supporting documentation lodged with the application) must be served on the named Respondent(s) to the dispute as soon as practicable after the document is lodged with FWA.

Serving a document means giving a copy of the document to the person being served in a manner provided for in the Fair Work Australia Rules 2010. Rule 9 sets out the ways in which a document can be served. For example, to serve a company it is sufficient if a copy of the documents is sent by Express Post (retaining the sender’s copy of the identifying barcode), registered post or delivered by hand, to the company’s registered office or its principal place of business.

[27]Schedule 2, Form F17

substitute

Form F17Employer’s Declaration in Support of Application for Approval of Enterprise Agreement

IN FAIR WORK AUSTRALIA

FWA Matter No.:

[Insert FWA matter number appearing on the main application form, if known.]

Applicant:

[Insert name of Applicant from main application.]

EMPLOYER’S DECLARATION IN SUPPORT OF APPLICATION FOR APPROVAL OF ENTERPRISE AGREEMENT

Fair Work Act 2009— s.185

Note: This declaration must be made by an officer or employee of the employer.

[name]

[address]

[occupation]

Make the following declaration under the Statutory Declarations Act 1959:

Part 1: Preliminary

1.1 Full and precise name of Agreement:

1.2 Legal name of Employer:

1.3 Trading name of Employer (if different):

1.4 Are you aware of other agreement(s) in identical or substantially identical terms having been dealt with by FWA?
[
] Yes
[
] No
If “Yes”, please provide information that would assist in identifying such agreement(s) (e.g. identification number and date of FWA’s decision, the name of such agreement, the name of the member of FWA who dealt with such agreement or the name of the employer covered by such agreement):
1.5 Has a scope order or a low-paid authorisation been issued in relation to the Agreement?
[
] Yes
[
] No
If “Yes”, please provide the unique print number and date of the order:

PR __ __ __ __ __ __

Date: __ __ / __ __ / __ __

Part 2: Requirements for approval

Nominal Expiry Date (s.186(5))

2.1 What is the nominal expiry date of the Agreement and the clause number of the clause that specifies that date: (s.186(5))?

Scope of the Agreement (s.186(3) and (3A))

2.2 Does the Agreement cover all employees of the Employer (other than senior executives)?
[
] Yes
[
] No
2.3 If “No”, specify the group(s) of employees covered by the Agreement and how FWA can be satisfied that such group(s) were fairly chosen, including, if appropriate, by reference to the geographical, operational or organisational distinctness of such group(s): (s.186(3) and (3A)):

Agreement Genuinely Approved - (s.186(2)(a), s.188, s.180(2), (3) and (5), s.181)

2.4 Was a notice of representational rights complying with s.174 given to each employee who will be covered by the Agreement in accordance with s.173?
[
] Yes
[
] No
If “Yes”, please attach a copy of the notice that was given.
2.5 Please specify the steps taken by the employer to ensure that the relevant employees were given, or had access to, the written text of the Agreement and any other material incorporated by reference into the Agreement during the 7 day period ending immediately before the start of the voting process (s.180(2)(a)):
2.6 Please specify the steps taken by the employer (including the date of each such step) to notify all relevant employees of the time and place at which the vote was to occur and the voting method to be used (s.180(3)):
2.7 Please specify the steps taken by the employer to explain the terms of the Agreement, and the effect of those terms, to relevant employees (s.180(5)):
[Note: Your answer must include information on the manner in which the explanation took account of particular circumstances and needs of the relevant employees. (e.g., where the employees were from a non-English speaking background, were young employees or did not have a bargaining representative).]

2.8 Please provide the following dates:

Date on which the last notice of representational rights was given to an employee who will be covered by the Agreement (s.181(2)):

Date on which voting for the Agreement commenced (voting commences on the first day that an employee is able to cast a vote — see s.181):

Date on which the Agreement was made (that is, the date on which the voting process by which employees approved the agreement concluded — see s.182):

If the date on which the Agreement was made is more than 14 days before the date on which application for approval of the Agreement was lodged, please provide details of the circumstances which FWA should take into account in deciding if it is fair to extend the time for lodging the application (s.185(3)(b)):
2.9 Please provide the following details of the vote on the Agreement:

Number of employees who will be covered by the Agreement:

Number of employees who cast a valid vote:

Number of employees who voted to approve the Agreement:

Interaction with National Employment Standards (s.186(2)(c))

2.10 Please list any terms of the Agreement that exclude in whole, or in part, the National Employment Standards:
2.11 Please identify any terms of the Agreement that are detrimental to an employee in any respect when compared to the National Employment Standards:

Unlawful Terms (s.186(4))

2.12 Does the Agreement contain any terms that deal with the rights of officials or employees of employee organisations to enter the employer’s premises? (s.186(4) and s.194(f) and (g))
[
] Yes
[
] No
If “Yes”, please specify the term(s):

2.13 Does the Agreement contain any:

•
discriminatory terms? (s.186(4) and s.194(a), s.195);
•
objectionable terms? (s.186(4) and s.194(b), definition in s.12);
•
terms that deal with the rights of employees in relation to unfair dismissal? (s.186(4) and s.194(c) and (d));
•
terms that deal with the taking of industrial action that are inconsistent with Part 3-3 of Chapter 3 of the Act? (s.186(4) and s.194(e)); or
•
designated outworker terms? (s.186(4A))
[
] Yes
[
] No

Required terms

2.14 Please specify the clause number of the following required terms:

Dispute Resolution Procedure (s.186(6)):

Flexibility Term (s.202(1), s.203):

Consultation Term (s.205(1)):

Particular types of workers

2.15 Does the Agreement cover any shiftworkers? (s.196)
[
] Yes
[
] No
If “Yes”, please identify the clause, if any, that defines or describes an employee as a shiftworker for the purposes of the National Employment Standards:

2.16 Does the Agreement:

•
cover any pieceworkers (s.197); or
•
contain terms providing for school-based apprentices or trainees to receive loadings in lieu of paid leave (s.199); or
•
cover any outworkers (s.200)?
[
] Yes
[
] No
If “Yes”, please identify the relevant clause(s):

Part 3: Better Off Overall Test

[FWA must apply the better off overall test to the agreement by reference to relevant instrument(s): see s.193 of the Fair Work Act 2009 and item 18 in Schedule 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
It is essential that you set out the names of any modern award(s) or award‑based transitional instrument(s) — typically pre-reform award(s) or NAPSAs — accurately in full and include the “MA”, “AP” or “AN” number of each such instrument. These numbers can be located via a title search on the “Find an award” search facility at:
the legislative scheme an award will not apply to employees if a statutory collective agreement is in place. However, an award that would apply in the absence of such an agreement will still cover those employees.]

Reference instrument(s)

3.1 Relevant modern award(s)

List the modern award(s), if any, that currently cover the employer in relation to any employees covered by this Agreement:

3.2 Relevant pre-reform award(s)/NAPSA(s)

List the pre-reform award(s) or NAPSA(s), if any, that covered the employer in relation to any employees covered by this Agreement as at 31 December 2009:

Translating classifications

3.3 If the classifications in the Agreement are different from the classifications in any of the reference instrument(s) listed in questions 3.1 and 3.2, please attach a table that identifies how classifications in the Agreement relate to classifications in the reference instrument(s).

Improvements/reductions

3.4 Does the Agreement contain any terms or conditions of employment that are more beneficial than equivalent terms and conditions in the reference instrument(s) listed in questions 3.1 and 3.2 or does the Agreement confer any entitlements that are not conferred by those reference instrument(s)?
[
] Yes
[
] No
3.5 If “Yes”, identify the terms and conditions in the Agreement that:
(a) are more beneficial than the reference instrument(s),
(b) are not conferred by the reference instrument(s),
together with the employees affected and the relevant terms of the reference instrument(s):
3.6 Does the Agreement contain any terms or conditions of employment that are less beneficial than equivalent terms and conditions in the reference instrument(s) listed in questions 3.1 and 3.2 or do those reference instrument(s) confer any entitlements that are not conferred by the Agreement?
[
] Yes
[
] No
3.7 If “Yes”, identify the terms and conditions in the reference instrument(s) that:
(a) are more beneficial than the Agreement; or
(b) are not conferred by the Agreement,
together with the employees affected and, in the case of (a), the relevant terms of the Agreement:

[Note: your answers to 3.5 and 3.7 should indicate whether all or only some of the employees are affected and, if only some employees are affected, identify the group(s) of employees affected.]

Exceptional circumstances (agreement fails the better off overall test)

3.8 If the employer considers that the Agreement does not pass the better off overall test as set out at s.193 of the Fair Work Act 2009 (and, possibly, item 18 of Schedule 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009), identify any exceptional circumstances that FWA should consider when deciding whether approving the Agreement would not be contrary to the public interest (s.189):

Part 4: Statistical information

Note: The information in this part is necessary to enable Fair Work Australia to comply with its statutory reporting obligations.

4.1 Of the employees covered by the Agreement, how many employees are in the following demographic groups?

Group	Number of employees within group
Female
Non-English speaking background
Aboriginal or Torres Strait Islander
Disabled
Part-time
Casual
Under 21 years of age
Over 45 years of age (mature age)

4.2 In what State/Territory will the Agreement be in operation?
[Mark all applicable boxes with an “X”.]

ACT

[ ]

NSW

[ ]

Qld

[ ]

Tas

[ ]

Vic

[ ]

4.3 Please list the full and precise name of all collective agreements (including any ID number, if known,) that covered any employees covered by this Agreement immediately prior to the time this Agreement was made:

4.4 What is the primary activity of the employer?

[e.g. music retailer, plumbing contractor, steel fabricator.]

I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under section 11 of the Statutory Declarations Act 1959, and I believe that the statements in this declaration are true in every particular.

[Signature of person making the declaration.]

Declared at:

[place]

On:

[date]

Before me:

[Signature of person before whom the declaration is made.]

[Set out the witness’ full name, qualification to witness a statutory declaration and address (all in printed letters). Note: A statutory declaration must be made before a “prescribed person”: s.8, Statutory Declarations Act 1959 (Cth). For a full description of prescribed persons, go to fwa.gov.au/index.cfm?pagename=resourcefactsstatdecs.]

Please provide your contact details for any future inquiries related to this declaration:

Name:
Address:
Suburb:	State:	Postcode:
Telephone:	Mobile:
Fax:	Email:

[28]Schedule 2, Form F18

substitute
Form F18Declaration of Employee Organisation in relation to an Application for Approval of Enterprise Agreement

IN FAIR WORK AUSTRALIA

FWA Matter No.:

[Insert FWA matter number appearing on the main application form, if known.]

Applicant:

[Insert name of Applicant from main application.]

DECLARATION OF EMPLOYEE ORGANISATION IN RELATION TO AN APPLICATION FOR APPROVAL OF ENTERPRISE AGREEMENT

Fair Work Act 2009— s.185

[name]

[address]

[occupation]

Make the following declaration under the Statutory Declarations Act 1959:

1.I am an officer of the [name of employee organisation] (the Union).
2.This declaration relates to an application for approval of an enterprise agreement (the Agreement), as follows:
Name of Agreement:
Name of Employer(s) to be covered by the agreement:
FWA matter number of the Application for Approval:
3. The Union was a bargaining representative for the Agreement because one or more members of the Union are employees who are covered by the Agreement and the Union is entitled to represent the industrial interests of those employees in accordance with s.176(1)(b) of the Fair Work Act 2009.
4.The Union supports the approval of the Agreement by Fair Work Australia?
[
] Yes
[
] No
5.If the answer to question 4 is “No”, the grounds of objection raised by the Union are as follows:
[Using numbered paragraphs, set out the matters of disagreement. Attach additional pages if necessary or set out as an attachment.]
6.I have read the employer’s Form F17 statutory declaration in support of the Application. In so far as the matters contained in that statutory declaration are within my knowledge:
[
] I agree with that statutory declaration.
[
] I disagree with one or more of the answers given to questions in the statutory declaration, or with other matters specified in the statutory declaration, as follows:
[Using numbered paragraphs, set out the matters of disagreement. Attach additional pages if necessary or set out as an attachment.]
7.The Union gives notice pursuant to s.183 of the Fair Work Act 2009 that it wants to be covered by the Agreement?
[
] Yes
[
] No

[Signature of person making the declaration.]

Declared at:

[place]

On:

[date]

Before me:

[Signature of person before whom the declaration is made.]

fwa.gov.au/index.cfm?pagename=resourcefactsstatdecs.]

Please provide your contact details for any future inquiries related to this declaration:

Name:
Address:
Suburb:	State:	Postcode:
Telephone:	Mobile:
Fax:	Email:

Service requirements

This declaration must be served on the employer(s) to be covered by the Agreement and any other relevant bargaining representative known to the Union as soon as practicable after the document is lodged with FWA.

Note 1: Rule 9 deals with service.

Note 2: An employee organisation that wants to be covered by the Agreement must lodge this declaration (with Question 7 answered ‘Yes’) with Fair Work Australia, or otherwise give notice in accordance with s.183 of the Act, before Fair Work Australia approves the Agreement.

[29]Schedule 2, Form F22

omit

[30]Schedule 2, Form F47A

omit

Capacity/Position:
[If not signed by the Applicant.]

insert

Capacity/Position:

[31]Schedule 2, Forms F47B, F47C and F47D

omit

Capacity/Position:
[If not signed by the Respondent or the Respondent is not a natural person.]

insert

Capacity/Position:

Note

1. All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See

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Citations

Fair Work Australia Amendment Rules 2011 (No. 1) (Cth)

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