Fair Work (Registered Organisations) Amendment Act 2016 (Cth)
Contents
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The Parliament of Australia enacts:
This Act may be cited as the
Fair Work (Registered Organisations) Amendment Act 2016 .
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Sections 1 to 3 and anything in this Act not elsewhere covered by this table | The day this Act receives the Royal Assent. | 24 November 2016 |
Schedules 1 and 2 | A day or days to be fixed by Proclamation. However, if any of the provisions do not commence within the period of 12 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. | Schedule 1: 1 May 2017 (F2017N00032) Schedule 2: 2 May 2017 (F2017N00032) |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1 — The Registered Organisations Commissioner
Omit “additional functions”, substitute “an additional function”.
Repeal the paragraph, substitute:
(b) made under the Registered Organisations Act by:
(i) the General Manager (including a delegate of the General Manager); or
(ii) the Registered Organisations Commissioner (including a delegate of the Commissioner);
Omit “or the General Manager”, substitute “, the General Manager or the Registered Organisations Commissioner”.
Omit “and”, substitute “or”.
Add:
(iii) a decision of the Registered Organisations Commissioner (including a delegate of the Commissioner) under the Registered Organisations Act; and
Insert:
Commission means the Registered Organisations Commission established by section 329DA.
Commissioner means the Registered Organisations Commissioner holding office under Part 3A of Chapter 11.
Insert:
directions contravention means a contravention of one of the following:
(a) subsection 297(2) or (3);
(b) subsection 298(2) or (3);
(c) subsection 299(2) or (3);
(d) subsection 300(2) or (3);
(e) subsection 301(2) or (3);
(f) subsection 302(2) or (3);
(g) subsection 303(2).
Repeal the definition.
Repeal the heading, substitute:
Omit all the words after “FWC”, substitute “include keeping a register of organisations”.
Omit “paragraph 13(1)(a)”, substitute “subsection 13(1)”.
Omit “General Manager”, substitute “Commissioner”.
Omit “General Manager”, substitute “Commissioner”.
Omit “paragraph 13(1)(a)”, substitute “subsection 13(1)”.
Omit “paragraph 13(1)(a)”, substitute “subsection 13(1)”.
Omit “paragraph 13(1)(a)”, substitute “subsection 13(1)”.
Omit “paragraph 13(1)(a)”, substitute “subsection 13(1)”.
After “request the General Manager”, insert “or the Commissioner”.
After “General Manager”, insert “or the Commissioner, as the case requires,”.
After “General Manager”, insert “or the Commissioner”.
Omit “paragraph 13(1)(a)”, substitute “subsection 13(1)”.
Omit “paragraph 13(1)(a)”, substitute “subsection 13(1)”.
Omit “paragraph 13(1)(a)”, substitute “subsection 13(1)”.
Omit “paragraph 13(1)(a)”, substitute “subsection 13(1)”.
Omit “paragraph 13(1)(a)”, substitute “subsection 13(1)”.
Omit “paragraph 13(1)(a)”, substitute “subsection 13(1)”.
Omit “FWC”, substitute “Commissioner”.
Omit “General Manager”, substitute “Commissioner”.
Omit “General Manager”, substitute “Commissioner”.
Repeal the heading, substitute:
Omit “General Manager” (wherever occurring), substitute “Commissioner”.
Omit “FWC”, substitute “Commissioner”.
Repeal the heading, substitute:
Omit “FWC”, substitute “Commissioner”.
Omit “General Manager”, substitute “Commissioner”.
Omit “FWC”, substitute “Commissioner”.
Omit “General Manager”, substitute “Commissioner”.
Omit “General Manager must”, substitute “Commissioner must”.
Omit “FWC”, substitute “Commissioner”.
Omit “General Manager”, substitute “Commissioner”.
Omit “FWC”, substitute “Commissioner”.
Repeal the heading, substitute:
Omit “General Manager”, substitute “Commissioner”.
Omit “General Manager”, substitute “Commissioner”.
Omit “General Manager” (wherever occurring), substitute “Commissioner”.
Omit “of the FWC”, substitute “assisting the Commissioner”.
Omit “343A”, substitute “343B”.
Omit “of the FWC”, substitute “assisting the Commissioner”.
Omit “General Manager”, substitute “Commissioner”.
Omit “343A”, substitute “343B”.
Omit “General Manager”, substitute “Commissioner”.
Omit “General Manager”, substitute “Commissioner”.
Repeal the heading, substitute:
Omit “General Manager”, substitute “Commissioner”.
Omit “General Manager”, substitute “Commissioner”.
Omit “General Manager” (wherever occurring), substitute “Commissioner”.
Repeal the heading, substitute:
Omit “FWC”, substitute “Commissioner”.
Omit “General Manager” (wherever occurring), substitute “Commissioner”.
Repeal the heading, substitute:
Omit “General Manager” (wherever occurring), substitute “Commissioner”.
Repeal the heading, substitute:
Omit “General Manager” (wherever occurring), substitute “Commissioner”.
Omit “General Manager”, substitute “Commissioner”.
Omit “FWC”, substitute “Commissioner”.
Omit “General Manager”, substitute “Commissioner”.
Add:
(3) In satisfying himself or herself as mentioned in paragraph (2)(a), the General Manager must consult with the Commissioner.
Insert:
(1A) In satisfying himself or herself as mentioned in paragraphs (1)(a) and (b), the General Manager must consult with the Commissioner.
Insert:
(5A) In satisfying himself or herself as mentioned in paragraph (5)(a), the General Manager must consult with the Commissioner.
Insert:
(6A) In satisfying himself or herself as mentioned in paragraph (6)(a), the General Manager must consult with the Commissioner.
Omit “General Manager”, substitute “Commissioner”.
Omit “FWC”, substitute “Commissioner”.
Omit “General Manager”, substitute “Commissioner”.
Repeal the heading, substitute:
Omit “General Manager”, substitute “Commissioner”.
Omit “FWC”, substitute “Commissioner”.
Omit “General Manager”, substitute “Commissioner”.
Omit “FWC”, substitute “Commissioner”.
Omit “General Manager” (wherever occurring), substitute “Commissioner”.
Omit “FWC” (wherever occurring), substitute “Commissioner”.
Omit “General Manager” (wherever occurring), substitute “Commissioner”.
Omit “General Manager” (wherever occurring), substitute “Commissioner”.
Repeal the heading, substitute:
Omit “General Manager”, substitute “Commissioner”.
Repeal the subsections, substitute:
Application other than for order relating to directions contravention
(1) The following may apply for an order under this Part, other than an order relating to a directions contravention:
(a) the Commissioner, or a person authorised in writing by the Commissioner to make the application;
(b) the General Manager, or a person authorised in writing by the General Manager to make the application.
Note: For the meaning of
directions contravention , see section 6.
Application for order relating to directions contravention
(2) The Minister, or a person authorised in writing by the Minister to make the application, may apply for an order under this Part relating to a directions contravention.
After:
Part 3 provides that if a person is a party to certain kinds of proceedings under this Act, the Commonwealth may, in some circumstances, give the person financial assistance. Division 2 of Part 3 contains a rule about the ordering of costs by a court.
insert:
Part 3A establishes the Registered Organisations Commission and Registered Organisations Commissioner, provides for the terms and conditions of appointment of the Commissioner and makes provision for staff to assist the Commissioner. The Registered Organisations Commission Special Account is also established by the Part.
Omit “General Manager” (wherever occurring), substitute “Commissioner”.
Insert:
There is to be a Registered Organisations Commissioner.
The Commissioner has the following functions:
(a) to promote:
(i) efficient management of organisations and high standards of accountability of organisations and their office holders to their members; and
(ii) compliance with financial reporting and accountability requirements of this Act;
including by providing education, assistance and advice to organisations and their members;
(b) to monitor acts and practices to ensure they comply with the provisions of this Act providing for the democratic functioning and control of organisations;
(c) such other functions as are conferred on the Commissioner by this Act or by another Act;
(d) to do anything incidental to or conducive to the performance of any of the above functions.
The Commissioner has the power to do all things necessary or convenient to be done for the purposes of performing his or her functions.
Note: The expenditure of relevant money (within the meaning of the
Public Governance, Performance and Accountability Act 2013 ) must comply with the requirements in that Act.
(1) The Commissioner is to be appointed by the Minister by written instrument.
(2) Before the Minister appoints a person as the Commissioner, the Minister must be satisfied that the person:
(a) has suitable qualifications or experience; and
(b) is of good character.
(3) The Commissioner is to be appointed on a full‑time basis.
The Commissioner holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.
Note: The Commissioner is eligible for reappointment (see section 33AA of the
Acts Interpretation Act 1901 ).
The Minister may appoint an individual to act as the Commissioner:
(a) during a vacancy in the office of the Commissioner (whether or not an appointment has previously been made to the office); or
(b) during any period, or during all periods, when the Commissioner is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.
Note: Sections 33AB and 33A of the
Acts Interpretation Act 1901 have rules that apply to acting appointments.
(1) The Commissioner is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Commissioner is to be paid the remuneration that is prescribed.
(2) The Commissioner is to be paid the allowances that are prescribed.
(3) This section has effect subject to the
Remuneration Tribunal Act 1973 .
(1) The Commissioner has the recreation leave entitlements that are determined by the Remuneration Tribunal.
(2) The Minister may grant the Commissioner leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.
The Commissioner must not engage in paid employment outside the duties of his or her office without the Minister’s approval.
(1) A disclosure by the Commissioner under section 29 of the
Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) must be made to the Minister.(2) Subsection (1) applies in addition to any rules made for the purposes of that section.
(3) For the purposes of this Act and the
Public Governance, Performance and Accountability Act 2013 , the Commissioner is taken not to have complied with section 29 of that Act if the Commissioner does not comply with subsection (1) of this section.
The Commissioner holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.
(1) The Commissioner may resign his or her appointment by giving the Minister a signed notice of resignation.
(2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.
(1) The Minister may terminate the appointment of the Commissioner:
(a) for misbehaviour; or
(b) if the Commissioner is unable to perform the duties of his or her office because of physical or mental incapacity.
(2) The Minister must terminate the appointment of the Commissioner if:
(a) the Commissioner:
(i) becomes bankrupt; or
(ii) takes steps to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with one or more of his or her creditors; or
(iv) makes an assignment of his or her remuneration for the benefit of one or more of his or her creditors; or
(b) the Commissioner is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
(c) the Commissioner engages in paid employment contrary to section 329BF; or
(d) the Commissioner fails, without reasonable excuse, to comply with section 29 of the
Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or with rules made for the purposes of that section.
(1) The staff assisting the Commissioner are to be persons engaged under the
Public Service Act 1999 and made available for the purpose by the Fair Work Ombudsman (within the meaning of the Fair Work Act).(2) When performing services for the Commissioner, the persons:
(a) are subject to the directions of the Commissioner; and
(b) are not subject to the directions of the Fair Work Ombudsman (within the meaning of the Fair Work Act).
The Commissioner may also be assisted:
(a) by employees of Agencies (within the meaning of the
Public Service Act 1999 ); or(b) by officers and employees of a State or Territory; or
(c) by officers and employees of authorities of the Commonwealth, a State or a Territory;
whose services are made available to the Commissioner in connection with the performance of any of the Commissioner’s functions.
(1) The Commissioner may, on behalf of the Commonwealth, engage persons having suitable qualifications and experience as consultants to the Commissioner.
(2) The consultants are to be engaged on terms and conditions that the Commissioner determines in writing.
The Registered Organisations Commission is established by this section.
Note: The Commission does not have a legal identity separate from the Commonwealth.
The Commission consists of:
(a) the Commissioner; and
(b) any staff assisting the Commissioner as mentioned in subsection 329CA(1).
The Commission’s function is to assist the Commissioner in the performance of the Commissioner’s functions.
The Commission has the privileges and immunities of the Crown.
(1) The Registered Organisations Commission Special Account (the
Account ) is established by this section.(2) The Account is a special account for the purposes of the
Public Governance, Performance and Accountability Act 2013 .
There may be credited to the Account amounts equal to the following:
(a) amounts received by the Commonwealth in connection with the performance of the Commissioner’s functions under this Act;
(b) interest received by the Commonwealth from the investment of amounts debited from the Account;
(c) amounts received by the Commonwealth in relation to property paid for with amounts debited from the Account;
(d) amounts of any gifts given or bequests made for the purposes of the Account.
Note: An Appropriation Act provides for amounts to be credited to a special account if any of the purposes of the special account is a purpose that is covered by an item in the Appropriation Act.
The purposes of the Account are as follows:
(a) paying or discharging the costs, expenses and other obligations incurred by the Commonwealth in the performance of the Commissioner’s functions;
(b) paying any remuneration and allowances payable to any person under this Act (including staff mentioned in section 329CA);
(c) meeting the expenses of administering the Account.
Note: See section 80 of the
Public Governance, Performance and Accountability Act 2013 (which deals with special accounts).
(1) The Minister may, by legislative instrument, give written directions to the Commissioner about the performance of the Commissioner’s functions.
Note: Section 42 (disallowance) and Part 6 (sunsetting) of the
Legislative Instruments Act 2003 do not apply to the direction (see sections 44 and 54 of that Act).(2) The direction must be of a general nature only.
(3) The Commissioner must comply with the direction.
(1) The Minister may, in writing, direct the Commissioner to give the Minister specified reports relating to the Commissioner’s functions.
(2) The Commissioner must comply with the direction.
(3) The direction, or the report (if made in writing), is not a legislative instrument.
The annual report prepared by the Fair Work Ombudsman and given to the Minister under section 46 of the
Public Governance, Performance and Accountability Act 2013 for a period must include the following in relation to the period:
(a) details of the number and types of investigations conducted by the Commissioner under Part 4 of Chapter 11 of this Act;
(b) details of:
(i) when each investigation was started; and
(ii) if the investigation has been completed—when it was completed; and
(iii) if the investigation has not been completed—when it is expected to be completed;
(c) details of any orders applied for under paragraph 310(1)(a) of this Act;
(d) details of the types of education activities undertaken by the Commissioner and whether the education activities were provided to:
(i) registered employer organisations; or
(ii) registered employee organisations; or
(iii) members of registered employer organisations; or
(iv) members of registered employee organisations;
(e) any other matter prescribed by the regulations.
Repeal the heading, substitute:
Omit “General Manager”, substitute “Commissioner”.
Repeal the heading, substitute:
Omit “General Manager” (wherever occurring), substitute “Commissioner”.
Omit “General Manager must”, substitute “Commissioner must”.
Omit “FWC”, substitute “Commissioner”.
Omit “General Manager”, substitute “Commissioner”.
Omit “General Manager” (wherever occurring), substitute “Commissioner”.
Omit “FWC”, substitute “Commissioner”.
Omit “General Manager”, substitute “Commissioner”.
Omit “General Manager” (wherever occurring), substitute “Commissioner”.
Omit “General Manager” (wherever occurring), substitute “Commissioner”.
Omit “General Manager”, substitute “Commissioner”.
Omit “General Manager”, substitute “Commissioner”.
Omit “of the FWC”, substitute “assisting the Commissioner”.
Omit “General Manager” (wherever occurring), substitute “Commissioner”.
Repeal the heading, substitute:
Commissioner must notify reporting unit
Omit “General Manager is satisfied”, substitute “Commissioner is satisfied”.
Omit “the reporting unit concerned”, substitute “a reporting unit”.
Omit “General Manager must”, substitute “Commissioner must”.
Repeal the heading, substitute:
Commissioner must make inquiries
Omit “General Manager”, substitute “Commissioner”.
Repeal the heading, substitute:
Commissioner may take other action
Omit “General Manager”, substitute “Commissioner”.
Omit “General Manager”, substitute “Commissioner”.
Repeal the heading, substitute:
Omit “General Manager” (wherever occurring), substitute “Commissioner”.
Insert:
(ia) the Commissioner or a member of the staff assisting the Commissioner;
After “subparagraph (1)(b)(ii)”, insert “and to the Commissioner”.
Omit “FWA Member”, substitute “FWC Member”.
Repeal the paragraphs.
Repeal the paragraphs.
Repeal the paragraphs.
Omit “a provision of Part 4 of that Chapter or”.
Repeal the subsection.
Insert:
(1) The Commissioner may, in writing, delegate to a member of the staff assisting the Commissioner all or any of the Commissioner’s functions or powers under this Act.
(2) Despite subsection (1), the Commissioner’s functions or powers under the following provisions cannot be delegated:
(a) subsection 28(1A);
(b) subsection 95(3A), (3B) or (3C);
(c) subsection 183(4);
(d) section 197;
(e) any provision of Part 3 or 4 of Chapter 7 (other than section 202);
(f) any provision of Division 1, 2, 3 or 4 of Part 3 of Chapter 8;
(g) subsection 278(2);
(h) section 310;
(j) section 334;
(k) section 335 or 335A;
(ka) subsection 335C(2);
(m) subsection 336(1), (2), (3) or (5).
(3) Despite subsection (1), the Commissioner’s functions or powers under section 330, 331, 332 or 333 can only be delegated to:
(a) a member of the staff assisting the Commissioner; or
(b) any other person or body the Commissioner is satisfied has substantial or significant experience or knowledge in at least one of the following fields:
(i) accounting;
(ii) auditing;
(iii) financial reporting;
(iv) conducting compliance audits or investigations;
(v) a field prescribed by the regulations for the purposes of this subparagraph.
(5) In exercising powers or functions under a delegation, the delegate must comply with any directions of the Commissioner.
Omit “FWC”, substitute “Commissioner”.
After “General Manager”, insert “or the Commissioner”.
Omit “FWC”, substitute “Commissioner”.
Omit “General Manager”, substitute “Commissioner”.
In this Part:
commencement time means the time when this Schedule commences.
Commissioner has the same meaning as in the Act.
FWC has the same meaning as in the Act.
General Manager has the same meaning as in the Act.
the Act means theFair Work (Registered Organisations) Act 2009 .
(1) This item applies if:
(a) a process begun under the Act is incomplete at the commencement time; and
(b) because of the amendments made by this Schedule, a function or power that the General Manager or the FWC was required, or able, to perform or exercise in relation to the process has become a function or power of the Commissioner.
(2) For the purposes of completing the process:
(a) the Commissioner must or may, as the case requires, perform the function or exercise the power; and
(b) things done by or in relation to the General Manager or the FWC before the commencement time have effect as if they were done by or in relation to the Commissioner.
A permission given by the General Manager under section 234 (storage of records) of the Act that is in force immediately before the commencement time has effect, after that time, as if it had been given by the Commissioner under that section.
132
Certain references to include documents dealt with before the commencement time After the commencement time:
(a) the reference in subsection 236(5) of the Act to a copy of a document received by the Commissioner includes a reference to a copy of a document received by the General Manager under section 236 of the Act before the commencement time; and
(b) the reference in subsection 237(4) of the Act to a statement lodged with the Commissioner under subsection (1) includes a reference to a statement lodged with the FWC under subsection 237(1) of the Act before the commencement time; and
(c) the reference in paragraph 347(1)(c) of the Act to a copy of a list lodged with the Commissioner under subsection 233(1) includes a reference to a copy of a list lodged with the FWC under that subsection before the commencement time; and
(d) the reference in section 348 of the Act to a certificate of the Commissioner includes a reference to a certificate of the General Manager covered by that section before the commencement time; and
(e) the reference in section 349 of the Act to a list of the officers of an organisation or a branch of an organisation lodged with the Commissioner on behalf of the organisation or a copy of any such list certified by the Commissioner includes a reference to such a list lodged with the FWC on behalf of the organisation or a copy of such a list certified by the General Manager before the commencement time.
133
Proceedings in relation to civil penalty provisions (1) This item applies if an application made by the General Manager under Part 2 of Chapter 10 of the Act has not been finally determined before the commencement time.
(2) If the General Manager and the Commissioner agree, by signed writing, that the Commissioner is substituted for the General Manager as a party to any proceeding arising from the application:
(a) the agreement has effect accordingly; and
(b) the rights and obligations of the General Manager in relation to such a proceeding become rights and obligations of the Commissioner.
(1) This item applies if:
(a) an application made by the General Manager under the Act, other than an application under Part 2 of Chapter 10 of the Act, has not been finally determined before the commencement time; and
(b) because of the amendments made by this Schedule, the power to make applications of that kind has become a power of the Commissioner.
(2) The Commissioner is substituted for the General Manager as a party to any proceeding arising from the application, and the rights and obligations of the General Manager in relation to such a proceeding become rights and obligations of the Commissioner.
The Commissioner may, for the purposes of performing or exercising his or her functions or powers under the Act, require the General Manager to disclose to the Commissioner information acquired by the General Manager or a member of the staff of the FWC in the performance or exercise of functions or powers under the Act before the commencement time.
137
Minister may make rules about transitional matters The Minister may, by legislative instrument, make rules in relation to transitional matters arising out of the amendments and repeals made by Part 1 of this Schedule
.
Schedule 2 — Increased disclosure requirements, investigation powers and penalties
Repeal the definition.
Repeal the definition, substitute:
auditor , in relation to a reporting unit, means:
(a) if an individual holds the position of auditor of the reporting unit under section 256—the individual; or
(b) if a firm holds the position of auditor of the reporting unit under section 256—each person who is, from time to time, a member of the firm and a registered auditor; or
(c) if a company holds the position of auditor of the reporting unit under section 256—each person who is, from time to time, a director, officer or employee of the company and a registered auditor.
Insert:
authorised official means any of the following:
(a) the Commissioner;
(b) the General Manager;
(c) an FWC Member;
(d) the Director, within the meaning of subsection 4(1) of the
Fair Work (Building Industry) Act 2012 ;(e) the Fair Work Ombudsman (within the meaning of the Fair Work Act).
designated publication restriction has the same meaning as in thePublic Interest Disclosure Act 2013 .
detriment , in Part 4A of Chapter 11, has the meaning given by subsection 337BA(2).
disclosable conduct means an act or omission that:
(a) contravenes, or may contravene, a provision of this Act, the Fair Work Act or the
Competition and Consumer Act 2010 ; or(b) constitutes, or may constitute, an offence against a law of the Commonwealth.
Repeal the definition.
Repeal the definition, substitute:
excluded auditor , in relation to a reporting unit, means:
(a) an officer, former officer, employee or former employee of the reporting unit or the organisation of which the reporting unit is a part; or
(b) a partner, employer or employee of an officer, former officer, employee or former employee of the reporting unit or the organisation of which the reporting unit is a part; or
(c) a relative of an officer, former officer, employee or former employee of the reporting unit or the organisation of which the reporting unit is a part; or
(d) a liquidator in respect of property of the reporting unit or the organisation of which the reporting unit is a part; or
(e) a person who owes more than $5,000 to the reporting unit or the organisation of which the reporting unit is a part; or
(f) a person who would not be, or whom a reasonable person would consider would not be, capable of exercising objective and impartial judgement in relation to audits relating to the reporting unit, having regard to all the circumstances.
For the purposes of this definition,
employee has the same meaning as in Part 3 of Chapter 8.
Insert:
lawyer has the meaning given by section 12 of the Fair Work Act.
officer and related party disclosure statement has the meaning given by subsection 293J(3).
plays a significant role has the meaning given by subsection 256A(4).
Insert:
proceeding means:
(a) a proceeding in a court; or
(b) a proceeding or hearing before, or an examination by or before, a tribunal;
whether the proceeding, hearing or examination is of a civil, administrative, criminal, disciplinary or other nature.
registered auditor means a person who is registered as an auditor under subsection 255B(2) or (3).
registered company auditor means a person registered as an auditor under Part 9.2 of theCorporations Act 2001 .
Insert:
serious contravention , in relation to a contravention of a civil penalty provision by an organisation, a branch of an organisation or a person who is, or was, an officer or employee of an organisation or a branch of an organisation, means a contravention that:
(a) materially prejudices the interests of the organisation or branch, or the members of the organisation or branch; or
(b) materially prejudices the ability of the organisation or branch to pay its creditors; or
(c) is serious.
takes a reprisal has the meaning given by section 337BA.
Repeal the section.
Omit “Maximum penalty”, substitute “Penalty”.
Repeal the note.
Add:
Civil penalty: 100 penalty units.
Repeal the note.
Add:
Civil penalty: 100 penalty units.
Omit “Maximum penalty”, substitute “Penalty”.
Add:
Civil penalty: 100 penalty units.
Omit “Maximum penalty”, substitute “Penalty”.
Repeal the note.
Add:
Civil penalty: 100 penalty units.
Repeal the note.
Add:
Civil penalty: 100 penalty units.
Omit “Maximum penalty”, substitute “Penalty”.
Insert:
(iia) the keeping of minute books in which are recorded proceedings and resolutions of meetings of committees of management of the organisation and its branches; and
Repeal the Division.
Repeal the note.
Add:
Civil penalty: 60 penalty units.
Repeal the subsection, substitute:
(11) If an organisation and a State union agree, in writing, to terminate an agreement entered into under rules made under subsection (1), the organisation must lodge with the FWC a copy of the agreement to terminate.
Civil penalty: 60 penalty units.
(11A) If an organisation and a State union agree, in writing, to terminate an agreement entered into under rules made under subsection (1), the General Manager must as soon as practicable enter particulars of the termination in the register kept under subsection 13(1).
Repeal the note.
Add:
Civil penalty: 60 penalty units.
Repeal the sections.
Omit “or section 148D”.
Repeal the note.
Add:
Civil penalty: 100 penalty units.
Repeal the note.
Add:
Civil penalty: 60 penalty units.
Repeal the note.
Add:
Civil penalty: 100 penalty units.
Repeal the note.
Add:
Civil penalty: 100 penalty units.
Omit “Maximum penalty”, substitute “Penalty”.
Repeal the note.
Add:
Civil penalty: 60 penalty units.
Omit “Maximum penalty”, substitute “Penalty”.
Omit “Maximum penalty”, substitute “Penalty”.
Repeal the note.
Add:
Civil penalty: 100 penalty units.
Repeal the note.
Add:
Civil penalty: 100 penalty units.
Omit “Maximum penalty”, substitute “Penalty”.
Omit “Maximum penalty”, substitute “Penalty”.
Omit “Maximum penalty”, substitute “Penalty”.
Repeal the note.
Add:
Civil penalty: 100 penalty units.
Repeal the note.
Add:
Civil penalty: 100 penalty units.
Repeal the note.
Add:
Civil penalty: 100 penalty units.
Repeal the note.
Add:
Civil penalty: 100 penalty units.
Omit “Maximum penalty”, substitute “Penalty”.
Omit “Maximum penalty”, substitute “Penalty”.
Omit “Maximum penalty”, substitute “Penalty”.
Omit “or subsection 202(5)”, substitute “, subsection 202(5) or section 290A or 337BE”.
Repeal the note.
Add:
Civil penalty: 60 penalty units.
Repeal the note.
Omit “Note 2”, substitute “Note”.
Add:
Civil penalty: 60 penalty units.
Add:
Civil penalty: 60 penalty units.
Repeal the note.
Add:
Civil penalty: 60 penalty units.
Omit “Maximum penalty”, substitute “Penalty”.
Add:
Civil penalty: 60 penalty units.
Add:
Civil penalty: 60 penalty units.
Repeal the note.
Add:
Civil penalty: 100 penalty units.
Repeal the note.
Add:
Civil penalty: 60 penalty units.
Repeal the note.
Add:
Civil penalty: 60 penalty units.
Repeal the note.
Add:
Civil penalty: 60 penalty units.
Repeal the note.
Add:
Civil penalty: 100 penalty units.
Repeal the note.
Add:
Civil penalty: 100 penalty units.
Repeal the note.
Renumber as Note 1.
Renumber as Note 2.
Add:
(4) A reporting unit must not contravene this section.
Civil penalty: 100 penalty units.
Repeal the note.
Add:
(4) A reporting unit must not contravene this section.
Civil penalty: 100 penalty units.
Insert:
(2A) The reporting guidelines for the purposes of section 253 and 270 must require a report that shows the total expenditure incurred by reporting units during the financial year in relation to each of the following:
(a) remuneration, and other employment‑related costs and expenses, in respect of employees;
(b) advertising;
(c) operating costs;
(d) donations to political parties;
(e) legal costs.
Note: The total expenditure may be shown in diagrammatic form, such as a pie chart.
Insert:
(1) A person may apply in writing to the Commissioner for registration as an auditor.
(2) An application under subsection (1) must:
(a) be in a form approved by the Commissioner; and
(b) if the person is a registered company auditor—include evidence of that status; and
(c) if the person is not a registered company auditor—contain the information required by the regulations.
(1) This section applies if a person has made an application under subsection 255A(1) for registration as an auditor.
(2) If the person is a registered company auditor, the Commissioner must, subject to section 255E, grant the application and register the person as an auditor.
(3) If the person is not a registered company auditor, the Commissioner must, subject to section 255E, grant the application and register the person as an auditor if the Commissioner is satisfied that:
(a) the person meets the requirements of subsection 255C(1) or (2) (educational qualifications, or equivalent qualifications and experience); and
(b) the person has either:
(i) satisfied all the components of an auditing competency standard approved by the Australian Securities and Investments Commission under section 1280A of the
Corporations Act 2001 ; or(ii) had such practical experience in auditing as is prescribed by the regulations for the purposes of this paragraph; and
(c) the Commissioner is satisfied that the person is capable of performing the duties of an auditor and is otherwise a fit and proper person to be registered as an auditor.
(1) A person meets the requirements of this subsection if the person:
(a) holds a degree, diploma or certificate from a university, or other institution in Australia, that is prescribed by regulations made for the purposes of paragraph 1280(2A)(a) of the
Corporations Act 2001 ; and(b) has, in the course of obtaining that degree, diploma or certificate, passed examinations in such subjects, under whatever name, as the appropriate authority of the university or other institution certifies to the Commissioner to represent a course of study:
(i) in accountancy (including auditing) of not less than 3 years duration; and
(ii) in commercial law (including company law) of not less than 2 years duration; and
(c) has satisfactorily completed a course in auditing prescribed by regulations made for the purposes of paragraph 1280(2A)(c) of the
Corporations Act 2001 .(2) A person meets the requirements of this subsection if the person has other qualifications and experience that, in the Commissioner’s opinion, are equivalent to the requirements mentioned in subsection (1).
(1) The Commissioner must not refuse to grant an application for registration of a person as an auditor unless the Commissioner has given the person an opportunity to appear at a hearing before the Commissioner and to make submissions and give evidence to the Commissioner in relation to the matter.
(2) If the Commissioner refuses an application by a person for registration as an auditor, the Commissioner must, not later than 14 days after the decision, give to the person a notice in writing setting out the decision and the reasons for it.
(1) This section applies if a person has made an application for registration as an auditor.
(2) The Commissioner must refuse to grant the application if:
(a) under subsection 215(1), the person is not eligible to be a candidate for an election, or to be elected or appointed, to an office in an organisation; or
(b) under section 307A, the person is disqualified from holding office in an organisation.
(3) If the person is not a registered company auditor, the Commissioner must refuse to grant the application if the Commissioner is not satisfied as mentioned in subsection 255B(3) in relation to the person.
(4) The Commissioner may refuse to grant the application if the person is not resident in Australia.
(1) If the Commissioner grants an application made by a person for registration as an auditor, the Commissioner must give the person a certificate:
(a) stating that the person has been registered as an auditor; and
(b) specifying the day the application was granted.
(2) The registration of a person as an auditor:
(a) takes effect at the beginning of the day specified in the certificate as the day the application for registration was granted; and
(b) remains in force until:
(i) the registration is cancelled by the Commissioner; or
(ii) the person dies.
(1) The Commissioner may cancel, or suspend for a specified period, the registration of a person as an auditor if the Commissioner is satisfied that the person:
(a) has failed to carry out his or her duties under this Act; or
(b) has not performed any audit work, or any significant audit work, during a continuous period of not less than 5 years, and as a result has ceased to have the practical experience necessary for carrying out audits for the purposes of this Act; or
(c) is otherwise not a fit and proper person to remain registered as an auditor.
(2) In determining for the purposes of paragraph (1)(b) whether audit work performed by a person is significant, the Commissioner must have regard to:
(a) the nature of the audit; and
(b) the extent to which the person was involved in the audit; and
(c) the level of responsibility the person assumed in relation to the audit.
(3) The Commissioner may cancel, or suspend for a specified period, the registration of a person as an auditor if the person requests that his or her registration be cancelled or suspended for that period.
(4) If the Commissioner cancels, or suspends for a specified period, the registration of a person as an auditor under subsection (1), the Commissioner must notify the Australian Securities and Investments Commission of the cancellation or suspension and the reasons for it.
(5) The regulations may make further provision for and in relation to the suspension of the registration of a person as an auditor.
If a person was registered as an auditor under subsection 255B(2) on the basis that the person was a registered company auditor at the time of registration, the Commissioner may:
(a) cancel the registration if the person’s registration as a registered company auditor is cancelled; or
(b) suspend the registration for some or all of any period throughout which the person’s registration as a registered company auditor is suspended.
(1) If the Commissioner decides to cancel or suspend the registration of a person as an auditor:
(a) the Commissioner must, not later than 14 days after the decision, give the person a written notice setting out the decision and the reasons for it; and
(b) the decision comes into effect at the end of the day on which that notice is given to the person.
(2) A failure of the Commissioner to comply with subsection (1) does not affect the validity of the decision.
A person who is registered as an auditor under this Subdivision must advise the Commissioner of any change in circumstances that could materially affect the person’s registration within 14 days of the change in circumstances.
Civil penalty: 200 penalty units.
(1) The Commissioner may, in writing, request further information from any person for the purposes of making a decision under this Subdivision.
(2) The Commissioner is not required to make a decision under this Subdivision until any information requested under subsection (1) in relation to the decision has been provided.
Registration under this Subdivision is on the basis that:
(a) the registration may cease or be suspended as provided for by this Subdivision; and
(b) the registration may cease or be suspended by or under later legislation; and
(c) no compensation is payable if the registration ceases or is suspended as mentioned in paragraph (a) or (b).
(1) The regulations may make provision for and in relation to the registration of auditors.
(2) Without limiting subsection (1), the regulations may make provision for and in relation to the following:
(a) information relating to the matters to which the Commissioner must have regard in deciding whether to register a person as an auditor;
(b) the keeping of a register;
(c) fees in respect of applications for registration;
(d) matters relating to the suspension and cancellation of registration;
(e) the delegation, by a person on whom functions or powers are conferred by regulations made for the purposes of this Subdivision, of any such functions or powers.
Repeal the note.
Add:
Civil penalty: 200 penalty units.
Repeal the subsections, substitute:
(2) The position of auditor of a reporting unit is to be held by:
(a) an individual who is a registered auditor; or
(b) a firm, at least one of whose members is a registered auditor; or
(c) a company, at least one of whose directors, officers or employees is a registered auditor.
(3) An individual must not accept appointment as auditor of a reporting unit unless:
(a) the individual is a registered auditor; and
(b) the individual is not an excluded auditor in relation to the reporting unit.
Civil penalty: 200 penalty units.
Omit “an approved auditor”, substitute “a registered auditor”.
Repeal the note.
Add:
Civil penalty: 200 penalty units.
Repeal the subsection, substitute:
(4A) A company must not accept appointment as auditor of a reporting unit unless:
(a) at least one director, officer or employee of the company is a registered auditor; and
(b) no director, officer or employee of the company is an excluded auditor in relation to the reporting unit.
Civil penalty: 200 penalty units.
(5) An individual who holds the position of auditor of a reporting unit must resign the appointment if the individual:
(a) ceases to be a registered auditor; or
(b) becomes an excluded auditor in relation to the reporting unit.
Civil penalty: 200 penalty units.
Omit “an approved auditor” (wherever occurring), substitute “a registered auditor”.
Repeal the note.
Add:
Civil penalty: 200 penalty units.
Insert:
(6A) A company that holds the position of auditor of a reporting unit must resign the appointment if:
(a) there is no longer any director, officer or employee of the company who is a registered auditor; or
(b) a director, officer or employee of the company becomes an excluded auditor in relation to the reporting unit.
Civil penalty: 200 penalty units.
Insert:
(1) An individual must not play a significant role in the audit of a reporting unit:
(a) for more than 5 consecutive financial years; or
(b) for more than 5 out of 7 consecutive financial years.
Civil penalty: 200 penalty units.
(2) Paragraph (1)(b) does not apply to an individual, in relation to a reporting unit and a series of 7 consecutive financial years, if the Commissioner declares in writing that, in all the circumstances, it is not appropriate for that paragraph to apply to the individual in relation to the reporting unit and that series of 7 consecutive financial years.
(3) A declaration made under subsection (2) is not a legislative instrument.
(4) An individual
plays a significant role in the audit of a reporting unit for a financial year if:
(a) the individual holds the position of auditor of the reporting unit for the financial year; or
(b) if a firm or company holds the position of auditor of the reporting unit for the financial year—the individual is a registered auditor who, on behalf of the firm or company:
(i) participates in the preparation of an audit report in relation to a financial report of the reporting unit for the financial year or any part of the financial year; or
(ii) participates in the conduct of an audit in relation to the reporting unit for the financial year or any part of the financial year.
Repeal the note.
Add:
Civil penalty: 200 penalty units.
Repeal the note.
Add:
Civil penalty: 200 penalty units.
Omit “Maximum penalty”, substitute “Penalty”.
Repeal the note.
Add:
Civil penalty: 200 penalty units.
Omit “Maximum penalty”, substitute “Penalty”.
Repeal the note.
Add:
Civil penalty: 200 penalty units.
Repeal the note.
Add:
Civil penalty: 200 penalty units.
Repeal the note.
Add:
Civil penalty: 200 penalty units.
Repeal the note.
Add:
Civil penalty: 200 penalty units.
Repeal the note.
Add:
Civil penalty: 100 penalty units.
Repeal the note.
Add:
Civil penalty: 100 penalty units.
Repeal the note.
Add:
Civil penalty: 100 penalty units.
Repeal the note.
Add:
Civil penalty: 60 penalty units.
Repeal the note.
Add:
Civil penalty: 100 penalty units.
After “general meeting”, insert “, or meeting of the committee of management,”.
Omit “a meeting”, insert “a general meeting, or presented to a meeting of the committee of management, as the case requires,”.
Repeal the note.
Add:
Civil penalty: 100 penalty units.
Repeal the note.
Add:
Civil penalty: 100 penalty units.
Repeal the note.
Add:
Civil penalty: 100 penalty units.
Repeal the note.
Add:
Civil penalty: 100 penalty units.
Repeal the note.
Add:
Civil penalty: 100 penalty units.
Repeal the note.
Add:
Civil penalty: 60 penalty units.
Repeal the note.
Add:
Civil penalty: 60 penalty units.
Repeal the note.
Add:
Civil penalty: 60 penalty units.
Add:
Civil penalty: 60 penalty units.
Repeal the note.
Add:
Civil penalty: 60 penalty units.
After:
Part 2 sets out the general duties of officers and employees in relation to the financial management of an organisation or a branch of an organisation.
insert:
Part 2A sets out disclosure obligations about remuneration paid to officers and material personal interests of officers.
Part 2A also restricts officers from taking part in making decisions in relation to matters in which they have a material personal interest, requires the preparation of officer and related party disclosure statements and requires officers to undertake approved training in relation to their financial duties.
Repeal the note.
Add:
Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.
Repeal the note.
Add:
Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.
Repeal the note.
Add:
Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.
Repeal the note.
Add:
Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.
Repeal the note.
Add:
Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.
Omit “1”.
Repeal the note.
160
At the end of subsection 288(1) (after note 2) Add:
Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.
Repeal the note.
Add:
Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.
Insert:
Good faith—officers of organisations and branches
(1) An officer of an organisation or a branch commits an offence if he or she:
(a) is reckless; or
(b) is intentionally dishonest;
and fails to exercise his or her powers or discharge his or her duties:
(c) in good faith in the best interests of the organisation; or
(d) for a proper purpose.
Penalty: 2,000 penalty units or imprisonment for 5 years, or both.
Use of position—officers and employees of organisations and branches
(2) An officer or employee of an organisation or a branch commits an offence if the officer or employee uses his or her position dishonestly:
(a) with the intention of directly or indirectly gaining an advantage for himself or herself, or someone else, or causing detriment to the organisation; or
(b) reckless as to whether the use may result in himself or herself or someone else directly or indirectly gaining an advantage, or causing detriment to the organisation.
Penalty: 2,000 penalty units or imprisonment for 5 years, or both.
Use of information—officers and employees of organisations and branches
(3) A person who obtains information because he or she is, or has been, an officer or employee of an organisation or a branch commits an offence if he or she uses the information dishonestly:
(a) with the intention of directly or indirectly gaining an advantage for himself or herself, or someone else, or causing detriment to the organisation; or
(b) reckless as to whether the use may result in himself or herself or someone else directly or indirectly gaining an advantage, or causing detriment to the organisation.
Penalty: 2,000 penalty units or imprisonment for 5 years, or both.
Repeal the heading, substitute:
After “289”, insert “and 290A”.
Insert:
This Part sets out disclosure obligations about remuneration paid to officers and material personal interests of disclosing officers (see subsection 293C(1)).
It also restricts disclosing officers from taking part in making decisions in relation to matters in which they have a material personal interest, requires the preparation of officer and related party disclosure statements and requires officers to undertake approved training in relation to their financial duties.
Disclosure by officers
(1) Each officer of an organisation must, in accordance with section 293BA or 293BB, disclose to the organisation details of any remuneration paid to the officer:
(a) because the officer is a member of a Board, if:
(i) the officer is a member of the Board only because the officer is an officer of the organisation; or
(ii) the officer was nominated for the position of member of the Board by the organisation, a branch of the organisation or a peak council; or
(b) by a related party of the organisation, in connection with the performance of the officer’s duties as an officer.
Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.
(2) Each officer of a branch of an organisation must, in accordance section 293BA or 293BB, disclose to the branch details of any remuneration paid to the officer:
(a) because the officer is a member of a Board, if:
(i) the officer is a member of the Board only because the officer is an officer of the branch; or
(ii) the officer was nominated for the position of member of the Board by the organisation, a branch of the organisation or a peak council; or
(b) by a related party of the branch, in connection with the performance of the officer’s duties as an officer.
Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.
The disclosure is in accordance with this section if it is made in writing to the committee of management of the organisation or branch, as the case may be, as soon as practicable after the remuneration is paid to the officer.
(1) The disclosure is in accordance with this section if:
(a) remuneration is to be paid to the officer, under a contract or other arrangement, on a regular basis during the financial year; and
(b) the officer gives to the members of the committee of management of the organisation or branch, as the case may be, standing notice of the amounts of remuneration that the officer expects to be paid during the financial year; and
(c) the requirements set out in subsections (2) to (5) are met.
(2) The standing notice must be given at any time before, or as soon as practicable after, the first payment is made to the officer.
(3) If, during the financial year, an amount of remuneration paid to the officer under the contract or arrangement exceeds the amount notified in the standing notice, the officer must, as soon as practicable, notify the committee of management of the organisation or branch, as the case may be, of the excess.
(4) If, at the end of the financial year, the total amount (the
final total ) of remuneration paid to the officer under the contract or arrangement is more, or less, than the total amount notified under paragraph (2)(b), the officer must, as soon as practicable after the end of the financial year, notify the committee of management of the organisation or branch, as the case may be, of the final total.(5) Notice under this section must be given in writing.
(1) An organisation must, for a financial year, disclose to the members of the organisation and its branches details of the following in accordance with subsection (3):
(a) the identity of each officer of the organisation who, when all officers of the organisation are ranked by relevant remuneration for the financial year (from highest to lowest), is ranked no lower than fifth;
(b) for each of those officers:
(i) the actual amount of the officer’s relevant remuneration for the financial year; and
(ii) the value and form of the officer’s relevant non‑cash benefits for the financial year.
(2) A branch of an organisation must, for a financial year, disclose to the members of the branch, details of the following in accordance with subsection (3):
(a) the identity of each officer of the branch who, when all officers of the branch are ranked by relevant remuneration for the financial year (from highest to lowest), is ranked no lower than fifth;
(b) for each of those officers:
(i) the actual amount of the officer’s relevant remuneration for the financial year; and
(ii) the value and form of the officer’s relevant non‑cash benefits for the financial year.
Manner of disclosure
(3) A disclosure under subsection (1) or (2) must be made as part of the officer and related party disclosure statement required under Division 3.
Note: Failure to prepare an officer and related party disclosure statement is a contravention of a civil penalty provision (see section 293J).
Relevant remuneration
(4) For the purposes of this section, the
relevant remuneration of an officer of an organisation or a branch of an organisation for a financial year is the sum of the following:
(a) any remuneration disclosed to the organisation or the branch by the officer under subsection 293B(1) or (2), during the financial year;
(b) any remuneration paid, during the financial year, to the officer by the organisation or the branch.
Relevant non‑cash benefits
(5) For the purposes of this section, the
relevant non‑cash benefits of an officer of an organisation or a branch of an organisation for a financial year are the non‑cash benefits provided to the officer, at any time during the financial year, in connection with the performance of the officer’s duties as an officer, by the organisation or the branch or by a related party of the organisation or the branch.
Disclosure by officers
(1) This section applies to each officer (a
disclosing officer ) of an organisation or a branch of an organisation whose duties include duties that relate to the financial management of the organisation or branch.(2) A disclosing officer of an organisation must, in accordance with subsection (5), disclose to the committee of management of the organisation details of any material personal interest that the officer has or acquires in a matter that relates to the affairs of the organisation.
Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.
(3) A disclosing officer of a branch must, in accordance with subsection (5), disclose to the committee of management of the branch details of any material personal interest that the officer has or acquires in a matter that relates to the affairs of the branch.
Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.
(4) A disclosing officer does not need to disclose an interest under subsection (2) or (3) if:
(a) the interest:
(i) arises because the disclosing officer is a member, or a representative of a member, of an organisation or a branch and the interest is held in common with the other members of the organisation or branch; or
(ii) arises in relation to the officer’s remuneration as an officer of the organisation or branch; or
(iii) relates to a contract the organisation or branch is proposing to enter into that is subject to approval by the members of the organisation or branch and will not impose any obligation on the organisation or branch if it is not approved by the members; or
(iv) is in a contract, or proposed contract, with, or for the benefit of, or on behalf of, a related party of the organisation or branch that is a body corporate and arises merely because the officer is on the Board of the related party; or
(b) the officer has given a standing notice of the nature and extent of the interest under section 293D and the notice is still effective in relation to the interest.
(5) A disclosure made under subsection (2) or (3) must:
(a) be made as soon as practicable after the interest is acquired; and
(b) provide details of:
(i) the nature and extent of the interest; and
(ii) the relation of the interest to the affairs of the organisation or branch; and
(c) be made:
(i) at a meeting of the committee of management (either orally or in writing); or
(ii) to the members of the committee of management individually in writing.
The disclosure is made under subparagraph (c)(ii) when it has been given to every member of the committee of management.
Committee of management must record details of disclosure in minutes of meeting
(6) An organisation or a branch contravenes this subsection if a committee of management of the organisation or branch (as the case may be) fails to record details of a disclosure made under subsection (2) or (3):
(a) if the disclosure is made at a meeting of the committee of management of the organisation or branch—in the minutes of the meeting of the committee of management at which the disclosure is made; or
(b) in any other case—in the minutes of the first meeting of the committee of management after the disclosure is made.
Civil penalty: 100 penalty units.
(7) An organisation or a branch contravenes this subsection if a committee of management of the organisation or branch (as the case may be) fails, within 28 days of being requested in writing to do so by a member of the organisation or branch, to provide to the member details of disclosures made to the committee of management under subsection (2) or (3).
Civil penalty: 100 penalty units.
Power to give notice
(1) An officer of an organisation who has an interest in a matter may give to the members of the committee of management of the organisation standing notice of the nature and extent of the interest in the matter in accordance with subsection (2). The notice may be given at any time and whether or not the matter relates to the affairs of the organisation at the time the notice is given.
Note: The standing notice may be given to the members of the committee of management before the interest becomes a material personal interest.
(2) The standing notice must:
(a) give details of the nature and extent of the interest; and
(b) be given:
(i) at a meeting of the committee of management (either orally or in writing); or
(ii) to the members of the committee of management individually in writing.
The standing notice is given under subparagraph (b)(ii) when it has been given to every member of the committee of management.
Standing notice must be tabled at meeting if given to members of the committee of management individually
(3) If the standing notice is given to the members of the committee of management individually in writing, it must be tabled at the next meeting of the committee of management after it is given.
Nature and extent of interest must be recorded in minutes
(4) The committee of management must ensure that the nature and extent of the interest disclosed in the standing notice is recorded in the minutes of the meeting of the committee of management at which the standing notice is given or tabled.
Dates of effect and expiry of standing notice
(5) The standing notice:
(a) takes effect as soon as it is given; and
(b) ceases to have effect if a person who was not a member of the committee of management at the time when the notice was given is appointed as a member of the committee of management.
A standing notice that ceases to have effect under paragraph (b) commences to have effect again if it is given to the person referred to in that paragraph.
Effect of material increase in nature or extent of interest
(6) The standing notice ceases to have effect in relation to a particular interest if the nature or extent of the interest materially increases above that disclosed in the notice.
Effect of contravention by officer
(7) A contravention of this section by an officer does not affect the validity of any act, transaction, agreement, instrument, resolution or other thing.
(8) This section applies in relation to a branch of an organisation as if references to an organisation were references to a branch of an organisation.
Sections 293C and 293D have effect in addition to, and not in derogation of:
(a) any general law rule about conflicts of interest; and
(b) any provision in an organisation’s or branch’s rules that restricts an officer or employee from having a material personal interest in a matter involving duties or interests that conflict with their duties or interests as an officer of the organisation or branch.
(1) An officer of an organisation who has a material personal interest in a matter that relates to the affairs of the organisation:
(a) must not be present during any deliberation by the organisation on the matter; and
(b) must not take part in any decision of the organisation with respect to the matter.
Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.
(2) An officer of a branch of an organisation who has a material personal interest in a matter that relates to the affairs of the branch:
(a) must not be present during any deliberation by the branch on the matter; and
(b) must not take part in any decision of the branch with respect to the matter.
Civil penalty: 100 penalty units, or 1,200 penalty units for a serious contravention.
(3) Subsections (1) and (2) do not apply if:
(a) subsection (4) allows the officer to be present and take part in a discussion with respect to the matter; or
(b) the interest does not need to be disclosed under section 293C.
(4) The officer may be present and take part in a decision with respect to the matter if members of the committee of management of the organisation or branch (as the case may be) who do not have a material personal interest in the matter have passed a resolution that:
(a) identifies the officer, the nature and extent of the officer’s interest in the matter and its relation to the affairs of the organisation or branch; and
(b) states that those members are satisfied that the interest should not disqualify the officer from being present and taking part in a decision with respect to the matter.
Effect of contravention by officer
(5) A contravention by an officer of this section does not affect the validity of any act, transaction, agreement, instrument, resolution or other thing.
(1) An organisation must, for a financial year and in accordance with subsection (3), disclose to the members of the organisation and its branches, details of each payment made by the organisation during the financial year:
(a) to a related party of the organisation or of a branch of the organisation; or
(b) to a declared person or body of the organisation.
(2) A branch of an organisation must, for a financial year and in accordance with subsection (3), disclose to the members of the branch each payment made by the branch, during the financial year:
(a) to a related party of the branch; or
(b) to a declared person or body of the branch.
(3) A disclosure under subsection (1) or (2) must be made as part of the officer and related party disclosure statement required under Division 3.
Note: Failure to prepare an officer and related party disclosure statement is a contravention of a civil penalty provision (see section 293J).
(4) Subsections (1) and (2) do not apply to a payment made to a related party if:
(a) the related party is an officer of the organisation or the branch; and
(b) the payment:
(i) consists of remuneration paid to the officer by the organisation or the branch; or
(ii) is reimbursement for expenses reasonably incurred by the officer in performing the officer’s duties as an officer.
Note: Section 293B requires certain disclosures in relation to remuneration.
(5) Subsections (1) and (2) do not apply to a payment made to a related party if the payment consists of amounts deducted by the organisation or the branch from remuneration payable to one or more officers or employees of the organisation or the branch (as the case may be).
Arm’s length terms
(5A) Subsections (1) and (2) do not apply to a payment made to a related party if the payment is made on terms that:
(a) would be reasonable in the circumstances if the organisation, or the branch, and the related party were dealing at arm’s length; or
(b) are less favourable to the related party than the terms referred to in paragraph (a).
Small amounts given to related party
(5B) Subsections (1) and (2) do not apply to a payment made to a related party if the total of the following amounts is less than or equal to the amount prescribed by the regulations for the purposes of this subsection:
(a) the amount of the payment;
(b) the total of all other payments given to the related party, in the financial year, in relation to which subsections (1) and (2) do not apply to the payment because of this subsection.
(5C) In working out the total of the payments referred to in paragraphs (5B)(a) and (b) disregard:
(a) amounts that have been repaid; and
(b) amounts that fall under any other exception in this section.
Payments to members that do not discriminate unfairly
(5D) Subsections (1) and (2) do not apply to a payment made to a related party if:
(a) the payment is given to the related party in their capacity as a member of the organisation or the branch; and
(b) making the payment does not discriminate unfairly against the other members of the organisation or the branch.
(6) For the purposes of this section, a person or body is a
declared person or body of an organisation or a branch of an organisation if:
(a) an officer of the organisation or the branch has disclosed a material personal interest under subsection 293C(2) or (3) or 293D(1); and
(b) the interest relates to, or is in, the person or body; and
(c) the officer has not notified the organisation or the branch that the officer no longer has the interest.
(1) If an organisation considers that it is too onerous for the organisation to comply with section 293G because special circumstances exist in relation to the organisation, the organisation may lodge with the Commissioner an application for an order under this section.
(2) The application must be accompanied by:
(a) a statement of the special circumstances that exist in relation to the organisation; and
(b) particulars of a proposed alternative arrangement (the
alternative disclosure arrangement ) to provide for disclosures, in relation to payments made by the organisation, that are appropriate for the organisation’s special circumstances and provide appropriate transparency; and(c) evidence of the organisation’s past and current high standards of financial accountability and control that are appropriate for the organisation’s special circumstances and provide appropriate transparency.
(3) If the Commissioner is satisfied, on application by an organisation under subsection (1):
(a) that special circumstances exist in relation to the organisation; and
(b) that, taking into account the evidence provided in accordance with paragraph (2)(c), the proposed alternative disclosure arrangement provides for disclosures, in relation to payments made by the organisation, that are appropriate for the organisation’s special circumstances and provide appropriate transparency; and
Omit “and”.
Add:
(iv) a person who has or had a contract for the supply of services or goods to, or any other transaction with, an organisation or a branch of an organisation;
(v) a person who has or had a contract for the supply of services or goods to, or any other transaction with, an officer or employee of an organisation or of a branch of an organisation who is or was acting on behalf of the organisation or branch;
(vi) an officer, former officer, employee or former employee of a person referred to in subparagraph (iv) or (v); and
Repeal the paragraphs, substitute:
(c) the discloser has reasonable grounds to suspect that the information indicates one or more instances of disclosable conduct by:
(i) the organisation or a branch of the organisation; or
(ii) an officer or employee of the organisation or of a branch of the organisation.
Add:
(2) A disclosure is taken to have been made by a person mentioned in paragraph (1)(a) (the
discloser ) to a person mentioned in paragraph (1)(b) (theofficial ) if the disclosure is made to the official by a lawyer on the discloser’s behalf.(3) A disclosure of information by a person (the
discloser ) qualifies for protection under this Part if:
(a) the discloser is a person mentioned in paragraph (1)(a) in relation to an organisation or a branch of an organisation; and
(b) the disclosure is made to the discloser’s lawyer; and
(c) the discloser has reasonable grounds to suspect that the information indicates one or more instances of disclosable conduct by:
(i) the organisation or a branch of the organisation; or
(ii) an officer or employee of the organisation or of a branch of the organisation.
Insert:
Repeal the sections, substitute:
(1) A person (the
first person )takes a reprisal against another person (thesecond person ) if:(a) the first person causes (by act or omission) any detriment to the second person; and
(b) when the act or omission occurs, the first person:
(i) believes or suspects that the second person or any other person made, may have made, proposes to make or could make a disclosure that qualifies for protection under this Part; or
(ii) should have known that the second person or any other person made, may have made, proposes to make or could make a disclosure that qualifies for protection under this Part.
(2) In this Part,
detriment includes (without limitation) any of the following:
(a) dismissal of an employee;
(b) injury of an employee in his or her employment;
(c) alteration of an employee’s position to his or her detriment;
(d) discrimination between an employee and other employees of the same employer;
(e) harassment or intimidation of a person;
(f) harm or injury to a person, including psychological harm;
(g) damage to a person’s property;
(h) damage to a person’s reputation.
(3) Despite subsection (1), a person does not take a reprisal against another person to the extent that the person takes administrative action that is reasonable to protect the other person from detriment.
(1) If the Federal Court or Federal Circuit Court is satisfied, on the application of a person mentioned in subsection (4) (the
applicant ), that another person (therespondent ) took or threatened to take, or is taking or threatening to take, a reprisal against a person (thetarget ), the Court may make any one or more of the following orders:
(a) an order requiring the respondent to compensate the target for loss, damage or injury as a result of the reprisal or threat;
(b) an order granting an injunction, on such terms as the Court thinks appropriate, to prevent, stop or remedy the effects of the reprisal or threat;
(c) an order requiring the respondent to apologise to the target for taking, or threatening to take, the reprisal;
(d) if the target is or was employed in a particular position with the respondent and the reprisal wholly or partly consists, or consisted, of the respondent terminating, or purporting to terminate, the target’s employment—an order that the target be reinstated in that position or a position at a comparable level;
(e) if the Court thinks it is appropriate—an order requiring the respondent to pay exemplary damages to the target;
(f) any other order the Court thinks appropriate.
(2) However, the Court must not make an order under subsection (1) if the respondent satisfies the Court that the belief or suspicion mentioned in subparagraph 337BA(1)(b)(i) is not any part of the reason for taking the reprisal.
(3) Notwithstanding subsection (2), the Court may make an order under subsection (1) if satisfied that:
(a) the target made, may have made, proposed to make or could have made a disclosure that qualifies for protection under this Part; and
(b) the respondent was under a duty to prevent, refrain from, or take reasonable steps to ensure other persons under the respondent’s control prevented or refrained from, any act or omission likely to result in detriment to the target; and
(c) the respondent failed in part or whole to fulfil that duty.
(4) Any of the following persons may make an application under subsection (1):
(a) the target;
(b) the Commissioner;
(c) the General Manager;
(d) the Director, within the meaning of subsection 4(1) of the
Fair Work (Building Industry) Act 2012 ;(e) the Fair Work Ombudsman (within the meaning of the Fair Work Act).
(5) If the reprisal wholly or partly consists, or consisted, of the respondent terminating, or purporting to terminate, the target’s employment, the Court must, in making an order mentioned in paragraph (1)(a), consider the period, if any, the target is likely to be without employment as a result of the reprisal. This subsection does not limit any other matter the Court may consider.
(6) If the Federal Court or Federal Circuit Court has power under subsection (1) to make an order against a respondent in relation to conduct that constituted or constitutes taking or threatening to take a reprisal against a target, the Court may make any other orders that it thinks appropriate against any other person who has:
(a) aided, abetted, counselled or procured the conduct; or
(b) induced the conduct, whether through threats or promises or otherwise; or
(c) failed to fulfil a duty to prevent, refrain from, or take reasonable steps to ensure other persons under the person’s control prevented or refrained from, the conduct; or
(d) been in any way (directly or indirectly) knowingly concerned in or a party to the conduct; or
(e) conspired with others to effect the conduct.
(1) This section applies to proceedings (including an appeal) in a court in relation to a matter arising under section 337BB if the target makes the application under subsection 337BB(1).
(2) Section 329 does not apply to the proceedings.
(3) The target must not be ordered by the court to pay costs incurred by another party to the proceedings, except in accordance with subsection (4).
(4) The target may be ordered to pay the costs only if:
(a) the court is satisfied that the target instituted the proceedings vexatiously or without reasonable cause; or
(b) the court is satisfied that the target’s unreasonable act or omission caused the other party to incur the costs.
Taking a reprisal (1) A person (the
first person ) must not take a reprisal against another person if the first person’s belief or suspicion that a person made, may have made, proposes to make or could make a disclosure that qualifies for protection under this Part is the reason, or part of the reason, for taking the reprisal.Civil penalty: 100 penalty units.
(2) In proceedings for a contravention of subsection (1), it is not necessary to prove that a person made, may have made, proposed to make or could have made a disclosure that qualifies for protection under this Part.
Threatening to take a reprisal (3) A person (the
first person ) must not make a threat to another person (thesecond person ) to take a reprisal against the second person or a third person if:(a) the first person:
(i) intends the second person to fear that the threat will be carried out; or
(ii) is reckless as to the second person fearing that the threat will be carried out; and
(b) the first person’s belief or suspicion that a person made, may have made, proposes to make or could make a disclosure that qualifies for protection under this Part is the reason, or part of the reason, for making the threat.
Civil penalty: 100 penalty units.
(4) For the purposes of subsection (3), the threat may be:
(a) express or implied; or
(b) conditional or unconditional.
(5) In proceedings for a contravention of subsection (3), it is not necessary to prove that the person threatened actually feared that the threat would be carried out.
Taking a reprisal (1) A person commits an offence if:
(a) the person takes a reprisal against another person; and
(b) the person’s belief or suspicion that a person made, may have made, proposes to make or could make a disclosure that qualifies for protection under this Part is the reason, or part of the reason, for taking the reprisal.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
(2) In a prosecution for an offence against subsection (1), it is not necessary to prove that a person made, may have made, proposed to make or could have made a disclosure that qualifies for protection under this Part.
Threatening to take a reprisal (3) A person (the
first person ) commits an offence if:(a) the first person makes a threat to another person (the
second person ) to take a reprisal against the second person or a third person; and(b) the first person:
(i) intends the second person to fear that the threat will be carried out; or
(ii) is reckless as to the second person fearing that the threat will be carried out; and
(c) the first person’s belief or suspicion that a person made, may have made, proposes to make or could make a disclosure that qualifies for protection under this Part is the reason, or part of the reason, for making the threat.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
(4) For the purposes of subsection (3), the threat may be:
(a) express or implied; or
(b) conditional or unconditional.
(5) In a prosecution for an offence under subsection (3), it is not necessary to prove that the person threatened actually feared that the threat would be carried out.
To avoid doubt, a person may bring civil proceedings under section 337BB, or civil proceedings for a contravention of subsection 337BD(1) or (3), in relation to the taking of a reprisal, or the threat to take a reprisal, even if a prosecution for a criminal offence against section 337BE in relation to the reprisal or threat has not been brought, or cannot be brought.
Note: Part 2 of Chapter 10 sets out the relationship between civil penalty provisions (including subsections 337BD(1) and (3)) and criminal proceedings (including under section 337BE) arising out of the same conduct.
Section 337B or 337BB has effect despite any other provision of a law of the Commonwealth, unless:
(a) the provision is enacted after the commencement of this section; and
(b) the provision is expressed to have effect despite this Part or that section.
(1) If a disclosure that qualifies for protection under this Part is made (other than a disclosure to a lawyer that qualifies for protection under this Part because of subsection 337A(4)), the person to whom the disclosure is made must allocate the handling of the disclosure to one or more authorised officials (which may be or include the person).
(2) The person must use his or her best endeavours to decide the allocation within 14 days after the disclosure is made.
(3) The person may, after making a decision under subsection (1) or this subsection allocating the handling of the disclosure to one or more authorised officials, decide to allocate the handling of the disclosure to one or more other authorised officials.
(4) For the purposes of deciding an allocation, the person may obtain information from such persons, and make such inquiries, as the person thinks fit.
(1) If a disclosure that qualifies for protection under this Part is allocated to an authorised official, the authorised official must investigate the disclosure.
(2) However, the authorised official may decide not to investigate the disclosure, or (if the investigation has started) not to investigate the disclosure further, under this Division in circumstances prescribed by the regulations.
(3) To avoid doubt, Division 2 continues to apply to the disclosure even if the authorised official decides not to investigate the disclosure, or not to investigate the disclosure further, under this Division.
(4) The investigation under this Division by the authorised official is to be conducted in accordance with any regulations made for the purposes of section 337CC and otherwise as the authorised official thinks fit.
(5) The authorised official may, for the purposes of the investigation, obtain information from such persons, and make such inquiries, as the authorised official thinks fit.
(1) An investigation under this Division must be completed within 90 days after allocation of the handling of the relevant disclosure.
(2) The Commissioner may extend, or further extend, the 90‑day period by such additional period (which may exceed 90 days) as the Commissioner considers appropriate:
(a) on the Commissioner’s own initiative; or
(b) on application made by the authorised official; or
(c) on application made by the discloser.
(3) If the 90‑day period is extended, or further extended:
(a) the Commissioner must inform the discloser of the extension or further extension, and of the reasons for the extension or further extension; and
(b) the authorised official must, as soon as reasonably practicable after the extension or further extension, inform the discloser of the progress of the investigation.
(4) Subsection (3) does not apply if contacting the discloser is not reasonably practicable.
(5) Failure to complete the investigation within the time limit under this section does not affect the validity of the investigation.
(1) The regulations may prescribe procedures to be followed and other matters in relation to allocation of handling of disclosures that qualify for protection under this Part.
(2) The regulations may prescribe procedures to be followed and other matters in relation to investigations under this Division, including in relation to the following:
(a) informing the discloser that an authorised official will investigate a disclosure;
(b) informing the discloser and the Commissioner of a decision not to investigate a disclosure, or not to investigate a disclosure further, under this Division;
(c) preparing a report of an investigation;
(d) adopting a finding of another investigation or inquiry for the purposes of an investigation.
(1) If an authorised official to whom a disclosure is allocated suspects on reasonable grounds that some or all of:
(a) the information disclosed; or
(b) any other information obtained in the course of investigation of the disclosure;
is evidence of the commission of an offence against a law of the Commonwealth, a State or a Territory, the authorised official may disclose the information, to the extent that it is such evidence, to a member of an Australian police force that is responsible for the investigation of the offence.
(2) However, if the offence is punishable by imprisonment for life or by imprisonment for a period of at least 2 years, the authorised official must so notify such a member.
(3) If an authorised official to whom a disclosure is allocated suspects on reasonable grounds that some or all of:
(a) the information disclosed; or
(b) any other information obtained in the course of investigation of the disclosure;
is evidence of a contravention of the
Competition and Consumer Act 2010 , the authorised official may disclose the information, to the extent that it is such evidence, to the Australian Competition and Consumer Commission.
(4) This section does not, by implication, limit a person’s power to notify a matter to a member of an Australian police force, the Australian Competition and Consumer Commission or another agency or person.
(1) A person is not subject to any criminal or civil liability because the person (voluntarily or otherwise) gives information, produces a document or answers a question if:
(a) the person does so when requested to do so by a person conducting an investigation under this Division; and
(b) the information, document or answer is relevant to the investigation.
Note: The first person may be the person whose disclosure gave rise to the disclosure investigation.
(2) This section does not apply to liability for an offence against section 137.1, 137.2, 144.1 or 145.1 of the
Criminal Code that relates to the information, document or answer, as the case may be.(3) This section does not apply to proceedings for a breach of a designated publication restriction.
(4) To avoid doubt, if the information, document or answer relates to the person’s own conduct, this section does not affect his or her liability for the conduct.
A reference in this Division to this Part includes a reference to regulations made for the purposes of section 337CC.
(1) A person to whom a disclosure that qualifies for protection under this Part is made or an authorised official (or a delegate of an authorised official) is not liable to any criminal or civil proceedings, or any disciplinary action (including any action that involves imposing any detriment), for or in relation to an act or matter done, or omitted to be done, in good faith:
(a) in the performance, or purported performance, of any function conferred on the person or authorised official by this Part; or
(b) in the exercise, or purported exercise, of any power conferred on the person or authorised official by this Part.
(2) This section does not apply to a breach of a designated publication restriction.
This Part is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Part.
This Part does not affect the law relating to legal professional privilege.
(1) This Part does not, by implication, limit the investigative powers conferred on an authorised official by a law of the Commonwealth other than this Part.
(2) This Part does not detract from any obligations imposed on an authorised official by a law of the Commonwealth other than this Part.
After “proceedings”, insert “before the FWC”.
Omit “, 3 or 4”, substitute “or 3, or Subdivision B of Division 4,”.
Insert:
(i) subsection 329G(2);
Omit “or 335A”.
Repeal the paragraph.
Insert:
(l) section 335K;
Insert:
(2A) Despite subsection (1), the Commissioner’s functions or powers under Subdivision A of Division 4 of Part 3 of Chapter 8 (registration of auditors) can only be delegated to a member of the staff assisting the Commissioner who is an SES employee or an acting SES employee.
Insert:
(4) Despite subsection (1), functions and powers under Division 3 (questioning on oath or affirmation) can only be delegated to a member of the staff assisting the Commissioner.
(4A) Despite subsection (1), the Commissioner’s functions or powers under section 337CB can only be delegated to a member of the staff assisting the Commissioner who is an SES employee or an acting SES employee, or who is in a class of employees prescribed by the regulations.
Note: The expressions
SES employee andacting SES employee are defined in section 2B of theActs Interpretation Act 1901 .
Repeal the note.
Add:
Civil penalty: 60 penalty units.
Omit “Maximum penalty”, substitute “Penalty”.
Omit “Maximum penalty”, substitute “Penalty”.
In this Part:
commencement time means the time when this Schedule commences.
Commissioner has the same meaning as in the Act.
General Manager has the same meaning as in the Act.
the Act means theFair Work (Registered Organisations) Act 2009 .
Without limiting the application of the amendments of the definition of
excluded auditor made by this Schedule, those amendments apply in relation to a former officer, or former employee, whether the person ceased to be an officer or employee before or after the commencement time.
A person who has undertaken training approved by the General Manager under section 154C of the Act, as in force immediately before the commencement time, is taken, for the purposes of section 293L of that Act as in force after the commencement time, to have undertaken that training as approved by the Commissioner.
In satisfying himself or herself as mentioned in subsection 293H(3) of the Act during the period of 12 months immediately after the commencement time, the Commissioner must take into account:
(a) any exemption granted to the organisation concerned under section 148D of the Act, as in force before the commencement time; and
(b) the statement, particulars and evidence provided in relation to any such exemption as required by subsection 148D(2) of the Act, as in force before the commencement time.
(1) Without limiting the application of the amendments of paragraph 337A(1)(a) of the Act made by this Schedule, those amendments apply in relation to:
(a) a former officer, former employee or former member whether the person ceased to be an officer, employee or member before or after the commencement time; and
(b) a contract or transaction whether the contract or transaction started, ended or occurred before or after the commencement time.
(2) A reference in Part 4A of Chapter 11 of the Act, as amended by this Schedule, to a disclosure that qualifies for protection under that Part includes a reference to a disclosure made before the commencement time that qualified for disclosure under that Part as in force at the time the disclosure was made.
(3) Despite subitem (2), Division 3 of Part 4A of Chapter 11 of the Act, as amended by this Schedule, only applies in relation to disclosures made after the commencement time.
(4) For the purposes of the definition of
disclosable conduct in section 6 of the Act:
(a) the reference to an act or omission includes an act or omission that occurred before the commencement time; and
(b) the reference to the Fair Work Act includes the WR Act (within the meaning of item 3 of Schedule 2 of the
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 ), as in force from time to time.
246
Minister may make rules about transitional matters The Minister may, by legislative instrument, make rules in relation to transitional matters arising out of the amendments and repeals made by Part 1 of this Schedule.
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