Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Act 2020 (Cth)

Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Act 2020

No. 131, 2020

An Act to amend the law in relation to registered organisations, and for related purposes

Contents

Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Act 2020

No. 131, 2020

An Act to amend the law in relation to registered organisations, and for related purposes

[Assented to 15 December 2020]

The Parliament of Australia enacts:

1Short title

This Act is the Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Act 2020.

2Commencement

1. (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.

Commencement information
Column 1	Column 2	Column 3
Provisions	Commencement	Date/Details
1. The whole of this Act	The day after this Act receives the Royal Assent.	16 December 2020

Note: This table relates only to the provisions of this Act as originally enacted.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.

1. (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.

3Schedules

Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.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—Amendments

Fair Work (Registered Organisations) Act 2009

1

Section 34

Omit “Federal Court”, substitute “FWC”.

2

Paragraph 92(b)

After “branches”, insert “, divisions or parts”.

3

After section 92

Insert:

92AReview of amendments made by the Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Act 2020

1. (1)

   The Minister must cause a review to be conducted of the operation of the amendments of this Part made by Schedule 1 to the Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Act 2020.

2. (2)

   The review must be completed, and a written report given to the Minister, no later than the second anniversary of the day the amendments commenced.

3. (3)

   The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the day the Minister receives the report.

4

Subsection 93(1) (definition of amalgamated organisation)

After “paragraph 73(3)(d)”, insert “of Part 2, or an equivalent provision of a predecessor law,”.

5

Subsection 93(1) (at the end of the definition of amalgamated organisation)

Add “or a predecessor law”.

6

Subsection 93(1) (at the end of paragraph (b) of the definition of constituent member)

Add “or a predecessor law”.

7

Subsection 93(1) (subparagraph (b)(i) of the definition of constituent part)

After “Part 2”, insert “or a predecessor law”.

8

Subsection 93(1)

Insert:

designated official has the meaning given by subsection 102(1A).

9

Subsection 93(1)

Insert:

predecessor law means any of the following:

1. (a)

   Part 2 of Chapter 3 of Schedule 1 to the Workplace Relations Act 1996 as in force at any time on or after 27 March 2006;

2. (b)

   Part 2 of Chapter 3 of Schedule 1B to the Workplace Relations Act 1996;

3. (c)

   Division 7 of Part IX of the Workplace Relations Act 1996 (including of that Act when titled the Industrial Relations Act 1988) as in force at any time after 1 February 1991.

10

Subsection 93(1) (paragraph (a) of the definition of separately identifiable constituent part)

After “Part 2”, insert “or a predecessor law”.

11

Subsection 93(1) (at the end of the definition of separately identifiable constituent part)

Add:

1. ; or (c)

   any branch, division or part of the amalgamated organisation not covered by paragraph (a) or (b) that is separately identifiable under the rules of the organisation.

12

Subsection 93(1)

Insert:

workplace or safety law means any of the following:

1. (a)

   this Act;

2. (b)

   the Fair Work Act;

3. (c)

   the Building and Construction Industry (Improving Productivity) Act 2016;

4. (d)

   the Work Health and Safety Act 2011;

5. (e)

   a State or Territory OHS law (within the meaning of the Fair Work Act).

13

Subsection 93(2)

After “Part 2” (first occurring), insert “or a predecessor law”.

14

Paragraph 93(2)(a)

After “amalgamated organisation”, insert “(including that organisation as it existed before any subsequent amalgamation under Part 2 or a predecessor law)”.

15

Paragraph 93(2)(b)

After “Part 2” (first occurring), insert “or a predecessor law”.

16

Subparagraph 93(2)(b)(ii)

After “Part 2”, insert “or a predecessor law”.

17

At the end of section 93

Add:

1. (3)

   For the purposes of subsection (2), a reference to an organisation is taken to include a reference to an organisation within the meaning of a predecessor law.

2. (4)

   For the purposes of this Part, a reference to a constituent part becoming part of an amalgamated organisation includes a reference to a constituent part becoming part of that organisation as it existed before any subsequent amalgamation under Part 2 or a predecessor law.

18

Subsection 94(1)

Omit “postal”.

19

Paragraph 94(1)(a)

Omit all the words from and including “under” to and including “Chapter; and”, substitute “under Part 2 or a predecessor law; and”.

20

After section 94

Insert:

94AAccepting applications for ballots more than 5 years after amalgamation

1. (1)

   Despite paragraph 94(1)(c), the FWC may accept an application made under section 94 after the end of the period referred to in that paragraph if the FWC is satisfied that, having regard to the matters set out in subsection (2), it is appropriate to accept the application.

2. (2)

   The matters are the following:

   1. (a)

      whether the amalgamated organisation has a record of not complying with workplace or safety laws and any contribution of the constituent part to that record;

      Note: Workplace or safety law is defined for this Part in subsection 93(1).

   2. (b)

      the likely capacity, of the organisation that the constituent part is to be registered as when the withdrawal from amalgamation takes effect, to promote and protect the economic and social interests of its members.

3. (3)

   If the FWC considers that an amalgamated organisation has a record of not complying with workplace or safety laws but that the constituent part has not contributed to that record, the FWC must decide that it is appropriate to accept the application.

4. (4)

   Submissions in relation to the matters mentioned in subsection (2) may only be made by the following persons:

   1. (a)

      the applicant or applicants, or any person who could have made an application under subsection 94(3) in relation to the proposed withdrawal;

   2. (b)

      the amalgamated organisation;

   3. (c)

      the Commissioner.

21

After section 95

Insert:

95AProposed names and rules

1. (1)

   The application must also be accompanied by:

   1. (a)

      a statement of the name, and a copy of the rules, proposed for the organisation (the new organisation) that the constituent part is to be registered as when the withdrawal from amalgamation takes effect; and

   2. (b)

      a statement of the name, and a copy of the alterations of the rules, proposed for the amalgamated organisation when the withdrawal from amalgamation takes effect.

2. (2)

   The name proposed for the new organisation must not be the same as the amalgamated organisation, or so similar to the name of the amalgamated organisation or any other organisation as to be likely to cause confusion.

3. (3)

   The name proposed for the amalgamated organisation must reflect the withdrawal of the constituent part.

4. (4)

   The eligibility rules of the new organisation:

   1. (a)

      must, as far as practical, reflect the application of the eligibility rules of the amalgamated organisation in relation to the constituent part immediately before the application was made; and

   2. (b)

      must not have the effect of making a class of individuals eligible for membership of the new organisation if that class would not have been eligible for membership of the constituent part immediately before the application was made.

5. (5)

   The eligibility rules of the amalgamated organisation as proposed to be altered must, as far as practical, avoid an overlap with the eligibility rules of the new organisation.

6. (6)

   Whether eligibility rules have the effect required by subsections (4) and (5) may be determined by examining the organisational and administrative arrangements for the amalgamated organisation before the application was made.

7. (7)

   If the applicant has insufficient information to prepare the statement and alterations mentioned in paragraph (1)(b), the applicant may request the General Manager or the Commissioner to:

   1. (a)

      give the applicant all information in the possession of the General Manager or the Commissioner, as the case requires, that may be relevant in the preparation; or

   2. (b)

      direct the amalgamated organisation to give the applicant all information in the possession of the organisation that may be relevant in the preparation.

8. (8)

   The General Manager or the Commissioner may provide that information, or direct the amalgamated organisation to provide that information.

9. (9)

   The amalgamated organisation must comply with a direction of the General Manager or the Commissioner under subsection (8).

   Civil penalty: 100 penalty units.

10. (10)

    The FWC may allow statements of name, or rules or alterations of rules, to be amended by whoever filed them with the FWC.

11. (11)

    If the FWC is not satisfied that a proposed name complies with subsection (2) or (3), or that proposed rules or alterations of rules comply with subsection (4) or (5), the FWC must order the making of any amendments the FWC considers are needed for compliance with the subsection.

22

Subsection 100(1)

Omit “postal”.

23

After paragraph 100(1)(b)

Insert:

1. (ba)

   the material required by section 95A complies with the requirements of that section; and

24

At the end of section 100

Add:

1. (4)

   If the FWC orders that a ballot be held, the FWC may accept undertakings, from the applicant or applicants, or the amalgamated organisation, that the FWC considers appropriate to avoid demarcation disputes that might otherwise arise from an overlap between:

   1. (a)

      the eligibility rules proposed for the organisation that the constituent part is to be registered as when the withdrawal from amalgamation takes effect; and

   2. (b)

      the eligibility rules of the amalgamated organisation as proposed to be altered.

   Note: See also section 110B.

25

Before subsection 102(1)

Insert:

Conduct of ballots

26

After subsection 102(1)

Insert:

1. (1A)

   Despite subsection (1), if:

   1. (a)

      an exemption is in force under section 186 (Commissioner may permit organisation or branch to conduct its elections for office) in relation to elections for the constituent part, or any identifiable part of the constituent part, of the amalgamated organisation; and

   2. (b)

      the applicant or applicants under section 94 apply to the FWC for the purposes of this subsection;

the FWC may, in making an order under section 100 that a ballot be held, allow the ballot to be conducted by an officer of the constituent part (the designated official), with the expenses of conducting the ballot to be borne by the constituent part.

1. (1B)

   If the FWC makes an order under subsection (1A), it may make any other orders it considers are needed for the conduct of the ballot by the designated official.

2. (1C)

   A ballot conducted by a designated official must be conducted in accordance with the regulations.

27

Before subsection 102(2)

Insert:

Postal ballots

28

Subsection 102(2)

Omit “The ballot paper”, substitute “In the case of a postal ballot, the ballot paper”.

29

After paragraph 102(2)(a)

Insert:

1. (aa)

   a copy of the material required by section 95A; and

30

After paragraph 102(2)(c)

Insert:

1. (ca)

   a copy of any undertakings accepted by the FWC as mentioned in subsection 100(4); and

31

Subsection 102(3)

Omit “In a ballot”, substitute “In any postal ballot”.

32

Subsection 102(3)

After “to the AEC”, insert “, or designated official,”.

33

At the end of section 102

Add:

Ballots other than postal ballots

1. (4)

   The regulations may make provision in relation to ensuring that the constituent members of a constituent part of an amalgamated organisation are given, within a reasonable period before voting in a ballot that is not a postal ballot in connection with a proposal for the constituent part to withdraw from the amalgamated organisation, the material mentioned in paragraphs (2)(a) to (ca).

34

Section 103 (heading)

Omit “electoral officials”, substitute “person conducting ballot”.

35

Before subsection 103(1)

Insert:

Requirement to give information to electoral official

36

After subsection 103(1)

Insert:

Requirement to give information to designated official

1. (1A)

   A designated official may, if:

   1. (a)

      it is reasonably necessary for the purposes of the ballot; and

   2. (b)

      the designated official is authorised under this section for the purposes of the ballot by the FWC;

require (by written notice) an officer or employee of the amalgamated organisation concerned or of a branch of the organisation:

1. (c)

   to give to the designated official, within the period (of not less than 7 days after the notice is given) and in the manner specified in the notice, any information within the knowledge or in the possession of the officer or employee; and

2. (d)

   to produce or make available to the designated official, at a reasonable time (being a time not less than 7 days after the notice is given) and place specified in the notice, any documents in the custody or under the control of the officer or employee, or to which the officer or employee has access.

1. (1B)

   If an officer or employee of an organisation fails to comply with a requirement made under subsection (1A), the designated official may apply to the FWC for an order directing the officer or employee to comply with the requirement.

2. (1C)

   The FWC may make the order if the FWC is satisfied that the requirement is reasonably necessary for the purposes of the ballot.

Offence

37

At the end of subsection 103(2)

Add “or an order made under subsection (1C)”.

38

Before subsection 103(5)

Insert:

Abrogation of privilege against self‑incrimination

39

Before subsection 103(7)

Insert:

Electronic form

40

Subsection 103(7)

Omit “is kept in electronic form, the electoral official”, substitute “or (1A) is kept in electronic form, the electoral official, or designated official,”.

41

Subsection 104(1)

After “subsection 103(1)”, insert “or (1A), or an order is made under subsection 103(1C),”.

42

After subsection 104(1)

Insert:

1. (1A)

   However, the secretary or other prescribed officer is not required to make a declaration under subsection (1) for an order under subsection 103(1C) if a declaration was made for the corresponding requirement under subsection 103(1A).

43

Subsection 106(1)

After “the electoral official” (first occurring), insert “, or the designated official,”.

44

Paragraph 106(1)(c)

After “electoral official”, insert “or designated official”.

45

Subsections 106(2) and (3)

After “electoral official”, insert “or designated official”.

46

Section 107 (heading)

Omit “AEC”, substitute “person conducting ballot”.

47

Subsection 107(1)

After “the AEC”, insert “, or the designated official,”.

48

Subsection 107(2)

After “AEC”, insert “or designated official”.

49

Subsection 107(4)

After “AEC” (wherever occurring), insert “or designated official”.

50

Paragraph 109(2)(a)

Repeal the paragraph, substitute:

1. (a)

   if the constituent part, or an organisation of which the constituent part was a State or Territory branch, was de‑registered in connection with the formation of the amalgamated organisation—the assets and liabilities of the constituent part or organisation before the de‑registration; and

51

Paragraph 109(2)(b)

Before “any change”, insert “if paragraph (a) applies—”.

52

After paragraph 109(2)(b)

Insert:

1. (ba)

   any rules, arrangements, practices or understandings of the amalgamated organisation under which:

   1. (i)

      assets of the amalgamated organisation have been held for the benefit of the constituent part; or

   2. (ii)

      liabilities of the amalgamated organisation have been the responsibility of the constituent part; and

53

After section 110

Insert:

110ARules and alterations take effect

The following take effect from the day determined under paragraph 109(1)(a):

1. (a)

   the rules of the newly registered organisation that were proposed for the purposes of section 95A;

2. (b)

   the alterations of the rules of the amalgamated organisation that were proposed for the purposes of section 95A.

110BUndertakings of applicant take effect as undertakings of newly registered organisation

An undertaking accepted from the applicant or applicants as mentioned in subsection 100(4) is taken, from the day determined under paragraph 109(1)(a), to be an undertaking accepted from the newly registered organisation.

Note: At the time the applicant’s or applicants’ undertaking is accepted under subsection 100(4), the newly registered organisation has not come into existence. The amalgamated organisation continues in existence and continues to be bound by its undertakings.

54

Section 111 (heading)

Omit “Choice”, substitute “Membership”.

55

Paragraphs 111(3)(b) and (c)

Repeal the paragraphs, substitute:

1. (b)

   inform the person that the person is now a member of the newly registered organisation.

56

Subsections 111(4) to (11)

Repeal the subsections, substitute:

1. (4)

   A person referred to in subsection (2):

   1. (a)

      ceases, by force of this subsection, to be a member of the amalgamated organisation with effect from the end of the day before the newly registered organisation is registered under section 110; and

   2. (b)

      becomes, by force of this subsection and without payment of entrance fee, a member of the newly registered organisation with effect from the start of the day the newly registered organisation is registered under section 110.

57

Subsection 123(2)

Repeal the subsection, substitute:

1. (2)

   However, the rules must not permit a person to hold office after the day that would have been the person’s last day of term in the constituent office if the withdrawal had not occurred.

58

After paragraph 343B(2)(b)

Insert:

1. (ba)

   subsection 95A(7), (8) or (9);

59

Application of amendments

The amendments made by this Schedule apply in relation to an application made under section 94 of the Fair Work (Registered Organisations) Act 2009 after this Schedule commences.

[Minister’s second reading speech made in—

House of Representatives on 9 December 2020

Senate on 9 December 2020]

(184/20)