Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Regulations 2021

Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Regulations 2021

EXPLANATORY STATEMENT

Issued by the authority of the Minister for Industrial Relations

under subsection 359(1) of the Fair Work (Registered Organisations) Act 2009

Purpose and operation of the instrument

The Fair Work (Registered Organisations) Act 2009 (the Act) provides a framework for the registration of employer and employee organisations, and sets out the according rights and privileges of those organisations once registered. Part 2 of Chapter 3 of the Act provides a framework for two or more registered organisations to amalgamate, and Part 3 sets out a process that enables a constituent part of an amalgamated organisation to withdraw from the amalgamated organisation.

The Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Regulations 2021 (the Amending Regulations) support recent amendments to the Act to facilitate a constituent part of a registered organisation holding a ballot of members on the question of whether to withdraw from the amalgamated organisation and register as a stand-alone organisation.

The amendments to the Act enable constituent parts to apply to the Fair Work Commission (FWC) for approval to hold such a ballot more than 5 years after the last amalgamation, in certain circumstances. The amendments to the Act commenced on 16 December 2020.

The Amending Regulations amend the Fair Work (Registered Organisations) Regulations 2009 (the Regulations), including to:

• reflect new definitions set out in the Act as amended;
• update prescribed forms;
• amend the information required to be included in documents accompanying a withdrawal ballot application;
• establish a new process for the Australian Electoral Commission (AEC) or a designated official of a registered organisation to conduct an attendance ballot on the question of withdrawal;
• provide that members of a constituent part entitled to vote in a withdrawal ballot can apply for an investigation into the conduct of the ballot; and
• correct minor or technical errors in the existing regulations.

Subsection 359(1) of the Act provides that the Regulations may prescribe all matters required or permitted by this Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act. In particular:

• subsection 102(1) of the Act requires all ballots conducted by the AEC to be conducted in accordance with the Regulations;
• subsection 102(1C) requires a ballot conducted by a designated official of a registered organisation to be conducted in accordance with the Regulations;
• subsection 102(4) provides that the regulations may make provision in relation to ensuring that the members entitled to vote in such a ballot are provided with information to inform their vote, within a reasonable timeframe before the ballot is conducted;
• section 124 provides a general regulation making power to provide for any other matters relating to giving effect to the withdrawal of constituent parts from amalgamated organisations; and
• paragraph 359(2)(g) provides that the Regulations may prescribe a civil penalty not exceeding 5 penalty units, or 25 penalty units for a body corporate.

The Amending Regulations commence the day after registration on the Federal Register of Legislation.

Details of the Amending Regulations are set out in Attachment A.

Consultation

The Government consulted with state and territory government officials under the Inter-governmental Agreement for a National Workplace Relations System for the Private Sector and with the Committee on Industrial Legislation on an exposure draft of the Amending Regulations. Minor amendments were made to the Amending Regulations as a result of consultation.

REGULATION IMPACT STATEMENT

The Office of Best Practice and Regulation (OBPR) has advised that a Regulation Impact Statement is not required. The OBPR reference number is 43334.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

The Amending Regulations are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

The Amending Regulations amend the Regulations to support the changes made by the Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Act 2020 (Amending Act).

The Amending Regulations engage the following rights:

• the right to freedom of assembly and association under Article 22 of the International Covenant on Civil and Political Rights (ICCPR); and
• the right to protection against arbitrary and unlawful interference with privacy under Article 17 of the ICCPR.

The right to freedom of association

Article 22 of the ICCPR protects the right to freedom of association, including that no restrictions be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.

The Amending Act engages the right to freedom of association and the right to take part in public affairs and elections, by enabling a constituent part of an amalgamated organisation to apply to the FWC to hold a ballot of its members on whether the constituent part can withdraw from the amalgamated organisation outside the current time-limited period of five years post‑amalgamation.

The right appropriately recognises that organisations and officials, like other persons or organised collectives, shall respect the law of the land. Where the provisions of the Amending Act engage the right to freedom of association, any limitations on the right is permissible as they pursue a legitimate objective, are prescribed by law, and are reasonable, necessary and proportionate. They have the sole objective of protecting the interests of members and guaranteeing the democratic functioning of organisations.

In supporting the changes made by the Amending Act, the Amending Regulations also engage the right to freedom of association in the same manner.

The Amending Regulations also engage the right to freedom of association by providing that, in addition to the Electoral Commissioner or designated official as relevant, the other persons who can make an application to the FWC for an inquiry into an alleged irregularity of a ballot for a constituent part of an organisation to withdraw from the amalgamated organisation is a member of that constituent part. These amendments will appropriately ensure that, aside from the official conducting the ballot, it is only the members of the constituent part seeking to withdraw who can make an application for an inquiry into alleged irregularities in relation to the ballot. This amendment is consistent with the changes made by the Amending Act and is necessary to protect the interests of the members of the constituent part who are eligible to vote in the ballot. There is also the additional scrutineer process in place to ensure that the ballot process is democratic and conducted in accordance with the Regulations.

The changes made by the Amending Regulations do not limit the ability of members to form and join trade unions.

The right to protection against arbitrary and unlawful interferences with privacy

Article 17 of the ICCPR provides that no one should be subjected to arbitrary or unlawful interference with their privacy. For interference with privacy not to be arbitrary, it must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the circumstances. Reasonableness in this context incorporates notions of proportionality to the end sought and being necessary in the circumstances.

Under current regulation 88, the roll of voters must set out the name of each person entitled to vote and the postal address of the person. Regulation 89, as will be amended by the Amending Regulations, will provide that a member of the amalgamated organisation or any other person authorised by the electoral official or the designated official can inspect the roll of voters. The Amending Regulations positively engage with the right to protection against arbitrary and unlawful interferences with privacy by limiting the personal information available for inspection to persons other than a member of the constituent part entitled to vote in the ballot to only the name of each person on the roll (and not their postal address). The changes made by the Amending Regulations also ensure that only an electoral official, designated official or assisting official may copy the roll. This further supports the right to protection against arbitrary and unlawful interferences with privacy by limiting the copying of personal information to those officials who require the information to carry out their duties in relation to a ballot.

Conclusion

The Amending Regulations are compatible with the right to freedom of association and protection against arbitrary and unlawful interferences with privacy.

Attachment A

Notes on sections

Section 1 – Name

This section provides that the title of the instrument is the Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Regulations 2021.

Section 2 – Commencement

This section provides for the whole of the instrument to commence the day after it is registered. 

Section 3 – Authority

This section provides that the instrument is made under the Fair Work (Registered Organisations) Act 2009 (the Act).

Section 4 – Schedules

This section provides that each instrument specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Schedule 1 – Amendments

Fair Work (Registered Organisations) Regulations 2009

Item 1 – subregulation 80(1) (definition of amalgamation day)

This item is a technical amendment that repeals the definition of amalgamation day to avoid confusion as to what is the relevant amalgamation for the purposes of determining when the constituent part became part of the amalgamated organisation. In the absence of this definition, the term will more clearly be able to attach to the relevant amalgamation day in any particular circumstances.

Item 2 – subregulation 80(1) (definition of applicant)

This item is a technical amendment that repeals the definition of applicant for Division 2 of Part 4. Following these amendment regulations, the term applicant will only appear in subregulation 82(c) in this Division, and refers to whoever made the application under section 94 of the Act.

Item 3 – subregulation 80(1)

This item inserts a new signpost definition of assisting official.

The definition of assisting official directs readers to new regulation 94A (see item 51). New regulation 94A provides that a designated official conducting a ballot may, in writing, authorise an officer or member of the constituent part to assist the designated official in conducting the ballot. This officer of the constituent part is an assisting official. This means that the designated official may be assisted by other officers or members of the constituent part for the purposes of conducting a ballot, especially in situations where attendance ballots are conducted at multiple locations.

Item 4 – subregulation 80(1) (definition of scrutineer)

This item corrects a technical error in the Fair Work (Registered Organisations) Regulations 2009 (the Regulations). Regulation 97 provides for the appointment of members of the constituent part as scrutineers for the ballot (rather than regulation 96, which appears in the current subregulation 80(1)). 

Item 5 – regulation 83

This item repeals and replaces regulation 83.

New regulation 83 requires that, for the purposes of paragraphs 95(1)(c) of the Act, the applicant’s written outline, as far as practicable, must address the following matters:

1. details of the circumstances in which the constituent part became part of the amalgamated organisation, including the name, immediately before de-registration, of any organisation de-registered in connection with the formation of the amalgamated organisation that the constituent part was or was part of (subregulation 83(a));
2. the eligibility rules of the amalgamated organisation immediately before the application for a ballot is made (subregulation paragraph 83(b));
3. if an organisation that the constituent part was, or was part of, was de-registered in connection with the formation of the amalgamated organisation — the eligibility rules of the de-registered organisation immediately before de-registration (subregulation 83(c));
4. the eligibility rules of the amalgamated organisation immediately before the constituent part became part of the amalgamated organisation (subregulation 83(d));
5. particulars of the assets and liabilities of the amalgamated organisation (subregulation 83(e));
6. if an organisation that the constituent part was, or was part of, was de-registered in connection with the formation of the amalgamated organisation:
   1. particulars of the assets and liabilities of the de-registered organisation immediately before de-registration (paragraph 83(f)(i)); and
   2. any change in the net value of those assets or liabilities that has occurred since the amalgamation (paragraph 83(f)(ii));
7. particulars of any rules, arrangements, practices or understandings referred to in paragraph 109(2)(ba) of the Act (subregulation 83(g));
8. any other matters the applicant considers may be relevant to the making of orders under paragraph 109(1)(b) of the Act (orders necessary to apportion the assets and liabilities of the amalgamated organisation between the amalgamated organisation and the constituent part) (subregulation 83(h)).

The reference to as far as practicable in the chapeau in subregulation 83(1) makes clear that the applicant is to include as much information as it can reasonably provide, so that the Fair Work Commission (FWC) has some flexibility to accept applications from applicants where information is difficult or impossible to locate. In addition, and to be clear, if the constituent part making the application was not, and was not part of, an organisation that was de-registered in connection with the formation of the amalgamated organisation, then the written outline does not need to provide the name of any de-registered organisation under subregulation 83(a), and nor does it need to provide the details specified in subregulations 83(c) or (f), as these items would not be relevant.

Subsection 95(4) of the Act provides that if the FWC is not satisfied that the outline complies with subsection (3), the FWC must order the making of such amendments to the outline as it considers are needed for the outline to comply with that subsection. In circumstances where the applicant has insufficient information to address the matters in subsection 95(3), the applicant may request that the General Manager of the FWC (General Manager) or the Registered Organisations Commissioner (Commissioner) provide relevant information to assist with the completion of the outline, or direct the amalgamated organisation to do so (subsection 95(3A) of the Act).

Item 6 – regulation 85 (heading)

Item 7 – regulation 85

Item 8 – at the end of regulation 85

These items inserts new subregulations 85(2) and (3) and makes consequential changes. Subregulation 85(2) provides that subregulation 85(1) applies to a ballot conducted by the Australian Electoral Commission (AEC).

Subregulation 85(3) provides that if the FWC allows the ballot to be conducted by a designated official under section 100 of the Act, the General Manager must, as soon as practicable after the order is made, give the designated official a copy of the question proposed to be put to ballot.

A note to subregulation 85(3) makes clear that in certain circumstances the FWC may allow the ballot to be conducted by an officer of the constituent part instead of the AEC. The officer is a designated official (see subsections 93(1) and 102(1A) of the Act).

The heading of regulation 85 is amended to clarify that the regulation-making authority is derived from subsections 102(1) and 102(1C) of the Act.

Item 9 – regulation 86 (heading)

Item 10 – subregulation 86(1)

Item 11 – subregulation 86(2)

These items amend regulation 86 to require the designated official to also give notice, as soon as practicable after the FWC orders a vote be taken, of the commencing day and closing day to persons entitled to vote at the ballot.

The heading of regulation 86 is amended to clarify that the regulation-making authority is derived from subsections 102(1) and 102(1C) of the Act.

Item 12 – regulation 87 (heading)

This item amends the heading to regulation 87 to make clear that the regulation only applies to a ballot conducted by an electoral official (that is, it does not apply to a ballot conducted by a designated official).

Item 13 – after regulation 87

This item inserts new regulation 87A in relation to the conduct of ballots by designated officials.

Subregulation 87A(1) provides that the designated official conducting a ballot may take action and give any direction necessary to ensure that no unlawful disclosure or other irregularity occurs in relation to the ballot if:

1. the person in relation to whom the designated official takes the action, or the person to whom the designated official gives the direction, is a member of the amalgamated organisation (paragraph 87A(1)(a)); and
2. the designated official is satisfied that the action or direction is reasonably directed to removing or reducing the threat of unlawful disclosure or other irregularity occurring in relation to the ballot (paragraph 87A(1)(b)).

This amendment ensures designated officials are equipped to prevent interference with the conduct of a ballot, including the disclosure of private information, in circumstances where the official is satisfied that the action or direction they propose to take is reasonably directed to preventing or reducing the risk of such a disclosure.

Subregulation 87A(2) provides that a person must comply with a direction given under subregulation 87A(1). This is a civil penalty provision inserted in reliance on paragraph 359(2)(g) of the Act.

Regulation 171, as will be amended by items 100 and 101, limits the persons who can apply for a civil penalty order for a breach of subregulation 87A(2) to the General Manager or the Commissioner.

Subregulation 87A(3) requires the designated official to advise the General Manager and the Commissioner of a possible contravention of a direction no later than 21 days after they become aware of the possible contravention.

An action or direction made under regulation 87A is not subject to merits review due to the time critical nature of such an action or direction, and the lack of availability of an effective or efficient remedy. An action or direction would most likely be taken or given on the day of the ballot and would only ever be validly taken or given to ensure no unlawful disclosure or other irregularity occurs in relation to the ballot. The purpose of this regulation is to manage a process and merits review would not be the appropriate mechanism to assure this process. Where a person disagrees with a direction and fails to comply, the General Manager or the Commissioner is the only person able to apply for a civil penalty order.

Item 14 – regulation 88 (heading)

Item 15 – subregulation 88(1)

Item 16 – paragraph 88(3)(a)

These items amends regulation 88 to require either an electoral official or the designated official to direct the preparation of the roll of voters and also clarify that the regulation-making authority is derived from subsections 102(1) and 102(1C) of the Act.

Item 17 – regulation 89 (heading)

Item 18 – subregulation 89(1)

Item 19 – subregulation 89(1)

Item 20 –subregulation 89(2)

Item 21 – subregulation 89(2)

Item 22 – paragraph 89(2)(b)

Item 23 – after subregulation 89(2)

These items amend regulation 89 to the effect that the designated official must make the roll of voters for ballot available for inspection, but not copying, by members of the amalgamated organisation and any other person authorised by the electoral official or designated official in accordance with the regulation.

New subregulation 89(2A) provides that the roll made available to a person mentioned in paragraph 89(2)(a) or (b), other than to a member of the constituent part who is entitled to vote at the ballot, must contain only the name of each person on the roll. This protects the privacy of the persons on the roll of voters.

New subregulation 89(2B) provides that only an electoral official, designated official or assisting official may copy the roll.

The heading of regulation 89 is amended to clarify that the regulation-making authority is derived from subsections 102(1) and 102(1C) of the Act.

Item 24 – at the end of regulation 89

This item inserts new subregulations 89(5) and (6). Subregulation 89(5) provides that if a person (the first person) obtains information about another person from a roll of voters under this Division, the first person must not:

1. use the information to contact or send material to the other person, unless the first person is expressly authorised by the Act or this Division to contact or send material to the other person (paragraph 89(5)(a)); or
2. disclose the information knowing that the information is likely to be used to contact or send material to the other person (paragraph 89(5)(b)).

Regulation 89(5) is a civil penalty provision, noting that subregulation 171(1A) limits those who can apply for a civil penalty order in relation to this provision to the General Manager, the Commissioner or a person authorised in writing by the General Manager or Commissioner.

Subregulation 89(6) requires the AEC or the designated official conducting the ballot to advise the General Manager and the Commissioner of a possible contravention of subregulation 89(5) no later than 21 days after they become aware of the possible contravention.

Item 25 – regulation 90 (heading)

Item 26 – paragraph 90(a)

Item 27 – paragraph 90(b)

Item 28 – regulation 90

These items amend regulation 90 to the effect that the designated official who has received a copy of a question to be put to a ballot must supply a copy to a person entitled to vote who has made a written or oral request for a copy of the ballot. The copy of the question must be supplied as soon as practicable after the request, and without charge.

The heading of regulation 90 is amended to clarify that the regulation-making authority is derived from subsections 102(1) and (1C) of the Act.

Item 29 – after regulation 90

This item inserts a new regulation 90A requiring the ballot papers used in the ballot to be in accordance with Form 3.

Item 30 – regulation 91 (heading)

Item 31 – regulation 91

Item 32 – paragraphs 91(a) and (b)

Item 33 – paragraph 91(d)

Item 34 – at the end of regulation 91

These items amend regulation 91 to include designated officials in the process for dispatching postal ballots.

New subregulation 91(1A) applies this regulation in relation to a postal ballot.

Regulation 91(1) provides that the electoral official or designated official conducting the ballot must post to each person entitled to vote in the ballot specified materials, as soon as practicable but no earlier than seven days before the commencing day of the ballot.

A note at the end of regulation 91(1) makes clear that ballot papers sent to constituent members for a postal ballot must be accompanied by the material specified in subsection 102(2) of the Act.

The heading of regulation 91 is amended to clarify that the regulation-making authority is derived from subsections 102(1) and (1C) of the Act.

Item 35 – regulation 92 (heading)

Item 36 – subregulation 92(1)

These items repeal subregulation 92(1) and is consequential to item 29 which provides that ballot papers for use in a ballot must be in accordance with Form 3.

Item 37 – subregulation 92(2)

Item 38 – paragraph 92(2)(b)

These items amend subregulation 92(2) to apply the provision to designated officials.

Item 39 – regulation 93 (heading)

Item 40 – subregulation 93(1)

Item 41 – subregulation 93(1)

Item 42 – paragraph 93(2)(a)

Item 43 – paragraph 93(2)(a)

Item 44- paragraph 93(2)(d)

Item 45 – subregulation 93(3)

These items amend regulation 93 to include designated officials in the process for how to deal with duplicate ballots in postal ballots.

New subregulation 93(1A) applies this regulation in relation to postal ballots.

The heading of regulation 93 is amended to clarify that the regulation-making authority is derived from subsections 102(1) and (1C) of the Act.

Item 46 – regulation 94 (heading)

Item 47 – subregulation 94(1)

Item 48 – paragraph 94(2)(a)

Item 49 – paragraph 94(2)(d)

Item 50 – paragraph 94(2)(d)

These items amend regulation 94 to include designated officials in the process for how to vote in postal ballots.

New subregulation 94(1A) applies this regulation in relation to postal ballots. The amendments to paragraph 94(2)(a) and (d) ensure that the process for sending a postal ballot applies to designated officials.

The heading of regulation 94 is amended to clarify that the regulation-making authority is derived from subsections 102(1) and (1C) of the Act.

Item 51 – after regulation 94

This item sets out a new process for attendance ballots, which may be conducted by electoral officials or designated officials.

94A Assisting official (s 102(1C))

New regulation 94A(1) allows a designated official conducting a ballot to authorise, in writing, an officer or member of the constituent part to assist with conducting the ballot. This officer or member is known as an assisting official.

New subregulation 94A(2) requires copies of the authorisation to be displayed at:

1. the places fixed for an attendance ballot under paragraph 94C(3)(a) (paragraph 94A(2)(a)); and
2. the places where a scrutiny is conducted under regulation 96 (paragraph 94A(2)(b)).

New subregulation 94A(3) requires the assisting official to comply with any directions of the designated official in assisting the designated official in conducting the ballot.

The power of the designated official to conduct a ballot is an administrative function, and where a delegated official authorises an assisting official to assist with conducting the ballot, the delegated official is still considered to be in charge of conducting the ballot. The assisting official’s role is to provide extra resources to undertake the process, which the designated official could not do personally without any assistance.

94B Attendance ballot—dispatch of material (s 102(1), (1C) and (4))

New regulation 94B provides for a process for the dispatch of materials and applies in relation to an attendance ballot.

The term ‘attendance ballot’ will, consistent with the term’s existing use in the Regulations, have its ordinary meaning, being a ballot conducted in person, for example at a workplace or other designated place.

New subregulation 94B(2) requires that the electoral official or designated official must, as soon as practicable after the FWC makes the order under section 100 of the Act for the ballot, post to each person entitled to vote at the ballot a sealed envelope, addressed to the postal address of the person shown on the roll of voters, containing the material specified in paragraphs 102(2)(a) to (ca) of the Act.

New subregulation 94B(3) allows the electoral official or designated official to post with the material in subregulation 94B(2):

1. directions to help a person voting in the ballot comply with these Regulations (paragraph 94B(3)(a)); and
2. other directions the official reasonably believes may assist in ensuring that an irregularity does not occur in relation to the ballot (paragraph 94B(3)(b)); and
3. information about the conduct of the ballot (paragraph 94B(3)(c)).

New subparagraph 94B(4) requires the material to be sent under subregulation 94B(2) to be sent in sufficient time for it to be delivered, in the ordinary course of post, at least 7 days before the relevant commencing day.

94C Attendance ballot—conduct of ballots (s 102(1), (1C) and (4))

New regulation 94C provides for a process for the conduct of ballots and applies in relation to an attendance ballot.

New subregulation 94C(2) allows members of the constituent part who are entitled to vote at the ballot to exercise an absentee vote.

New subregulation 94C(3) requires the electoral official or designated official conducting the ballot to:

1. fix the places, and the times of commencement and closing, for the ballot (paragraph 94C(3)(a)); and
2. include in the material posted under regulation 94B in relation to the ballot details of:
   1. the places and times fixed under paragraph 94C(3)(a) (subparagraph 94C(3)(b)(i)); and
   2. the procedure for obtaining and exercising an absentee vote in relation to the ballot (subparagraph 94C(3)(b)(ii)); and
3. make copies of the material posted under regulation 94B in relation to the ballot available at the places fixed under paragraph 94C(3)(a) (paragraph 94C(3)(c)).

A new note to regulation 94C reminds the reader that the electoral official or designated official, or an assisting official, must keep the ballot in safe custody until a scrutiny is conducted: see regulation 95.

94D Attendance ballot—issuing of ballot papers (s 102(1) and (1C))

New regulation 94D provides for a process for the issuing of ballots papers and applies in relation to an attendance ballot.

New subregulation 94D(2) requires the electoral official or designated official conducting the ballot, or an assisting official, to issue to each member entitled to vote at the ballot, a ballot paper bearing:

1. the initials of the electoral official or designated official (paragraph 94D(2)(a)); or
2. a facsimile of those initials (paragraph 94D(2)(b)).

In this context, the term ‘facsimile’ has its ordinary meaning and refers to an exact copy.

A new note reminds the reader that the electoral official or designated official, or assisting official, must keep the ballot papers in safe custody until a scrutiny is conducted: see regulation 95. 

94E Attendance ballot—duplicate ballot papers (s 102(1) and (1C))

New regulation 94E provides for a process for how to deal with spoilt ballot papers and the consequential provision of duplicate ballot papers in relation to attendance ballots.

New subregulation 94E(2) provides that where a person eligible to vote at the ballot satisfies the electoral official or the designated official conducting the ballot, or an assisting official, before depositing the ballot paper in the ballot box, that the person has accidentally spoilt the paper, the official must:

1. mark ‘spoilt’ on the paper and initial the marking (paragraph 94E(2)(a)); and
2. keep the paper (paragraph 94E(2)(b)); and
3. issue a fresh ballot paper to the person (paragraph 94E(2)(c)).

94F Attendance ballot—duplicate ballot paper etc. for absentee voting (s 102(1) and (1C))

New regulation 94F provides for a process for dealing with ballot papers and other documents for absentee votes that have not been received, have been lost or destroyed or have been spoilt, and the consequential provision of duplicate ballots papers in relation to attendance ballots.

New subregulation 94F(2) requires the electoral official or designated official conducting the ballot to, as soon as practicable, give a duplicate of a ballot paper or another document required to be posted with the ballot paper to a person where, on the written application of the person, the official is satisfied that for the purposes of exercising an absentee vote in accordance with subregulation 94C that the relevant material:

• has not been received by the person (paragraph 94F(2)(c)); or
• has been lost or destroyed (paragraph 94F(2)(d)); or
• in the case of a ballot paper, has been spoilt (paragraph 94F(2)(e)).

To be clear, the term ‘give’ in 94F(2) does not require physical handling of the duplicate; the giving of the duplicate could be done, for example, via fax or post.

New subregulation 94F(3) requires that an application for a new ballot paper under subregulation 94F(2) must:

1. be sent to an electoral official, or the designated official, so that it is received by the official on or before the closing day of the ballot (paragraph 94F(3)(a)); and
2. state the grounds for making the application (paragraph 94F(3)(b)); and
3. if practicable, be accompanied by evidence that verifies, or tends to verify, those grounds (paragraph 94F(3)(c)); and
4. contain a signed declaration that the person has not voted at the ballot (paragraph 94F(3)(d)); and
5. if the application relates to a ballot paper that has been spoilt, be accompanied by the ballot paper (paragraph 94F(3)(e)).

Subregulation 94F(4) requires the official to deal with the spoilt ballot paper returned under paragraph 94F(3)(e), in accordance with paragraphs 94E(2)(a) and (b).

A decision under regulation 94F is not subject to merits review due to the time critical nature of such a decision, and unavailability of effective or efficient remedy. A decision to give a duplicate of the relevant document to the person would most likely be made on the day of the ballot and only be given if the requirements of subregulation 94F(2) were met. The purpose of this regulation is to ensure that people have access to a duplicate ballot paper or another document where it has been lost, destroyed or spoilt. Merits review would not be the appropriate mechanism because review of this procedural decision may lead to the function of conducting the ballot being unnecessarily frustrated or delayed.

Item 52 – regulation 95 (heading)

Item 53 – regulation 95

These items amend regulation 95 to the effect that a designated official, or an assisting official, must also keep ballot papers and other material relating to the ballot in safe custody until a scrutiny is conducted in accordance with regulation 96.

The heading of regulation 95 is amended to clarify that the regulation-making authority is derived from subsections 102(1) and (1C) of the Act.

Item 54 – regulation 96 (heading)

Item 55 – subregulation 96(1)

Item 56 – after subregulation 96(1)

Item 57 – subregulation 96(2)

Item 58 – subparagraph 96(3)(a)(i)

Item 59 – paragraph 96(3)(d)

Item 60 – paragraph 96(3)(d)

Item 61 – at the end of subregulation 96(3)

Item 62 – subregulations 96(4), (5) and (6)

These items amend regulation 96 to apply the scrutiny process to those ballots conducted by designated officials, and extends the process to the scrutiny of attendance ballots.

New subregulation 96(1A) makes clear that assisting officials can assist the designated official in conducting the scrutiny of ballots.

The amendment to paragraph 96(3)(d) clarifies that a vote is informal for postal ballots only if the ballot paper does not comply with a direction given under paragraph 91(2)(a) or (b).

New paragraph 96(3)(e) provides that a vote is informal for attendance ballots only if the ballot paper does not comply with a direction given under paragraph 91(3)(a) or (b).

The amendments to subregulations 96(4) to (6) are technical amendments that remove the word electoral to ensure that the same process that applies to electoral officials also applies to designated officials.

The heading of regulation 96 is amended to clarify that the regulation-making authority is derived from subsections 102(1) and (1C) of the Act.

Item 63 – regulation 97 (heading)

Item 64 – paragraph 97(5)(a)

Item 65 – after paragraph 97(5)(a)

Item 66 – subregulation 97(6)

Item 67 – subregulation 97(6)

Item 68 – subregulation 97(7)

Item 69 – subregulation 97(8)

Item 70 – subregulation 97(9)

Item 71 – subregulation 97(11)

Item 72 – subregulation 97(11)

These items amend regulation 97 in relation to scrutineers.

The amendments to subregulation 97(5) provide that, subject to subregulation 97(6), (7) and (9), a scrutineer may also be present at:

1. the preparation and dispatch of material under regulation 94B (paragraph 97(5)(a));
2. the preparing and dispatch of duplicate ballot papers under regulations 93 or 94F (paragraph 97(5)(aa));
3. the issue of ballot papers under regulation 94D (paragraph 97(5)(ab)); and
4. the issue of fresh ballot papers under regulation 94E (paragraph 97(5)(ac)).

The amendments to subregulations 97(6) to (11) are technical amendments and ensure that the same process that applies to electoral officials also applies to designated officials.

Existing subregulation 97(10) provides that a person must comply with a direction given to them under subregulation 97(9) by an electoral official or a designated official, which relates to directions to leave a place where a scrutiny is being conducted if the person is not entitled to be or remain present or interrupts the scrutiny other than for permitted purposes. Under regulation 171 as amended by items 100 and 101, only the General Manager or the Commissioner can make an application for a civil penalty for failing to comply with such a direction.

The heading of regulation 97 is amended to clarify that the regulation-making authority is derived from subsections 102(1) and (1C) of the Act.

Item 73 – regulation 98 (heading)

Item 74 – paragraph 98(1)(b)

Item 75 – paragraph 98(1)(b)

Item 76 – after paragraph 98(1)(b)

Item 77 – paragraphs 98(1)(e), (f) and (g)

These items amend regulation 98 to ensure that designated officials are included in the process for post-ballot reports.

The amendment in item 76 to subregulation 98(1) ensure that, for subsection 107(3) of the Act, the following matters are additionally prescribed for inclusion in the report:

1. for an attendance ballot—the total number of envelopes posted in accordance with regulation 94B that were returned undelivered by the closing date of the ballot to the AEC or designated official (if applicable) (paragraph 98(1)(ba)); and
2. for an attendance ballot—the total number of ballots posted to one or more persons for the purposes of exercising an absentee vote in relation to the ballot in accordance with subregulation 94C(2) that were returned undelivered by the closing date of the ballot to the AEC or designated official (if applicable) (paragraph 98(1)(bb)).

The other amendments to subregulation 98(1) are technical amendments to ensure that the same process that applies to electoral officials also applies to designated officials.

Item 78 – subregulation 98(2)

This item is a consequential amendment to item 79 that provides that the requirements in subsection 98(2) apply to ballots conducted by the AEC.

Item 79 – after subregulation 98(2)

This item inserts new subregulation 98(2A) requiring that if the ballot was conducted by a designated official:

1. the designated official must give the report to the persons required under subsection 107(1) of the Act within 14 days after the closing day of the ballot (paragraph 98(2A)(a)); and
2. the amalgamated organisation from which the constituent part withdrew or sought to withdraw must publish the report as soon as practicable, but no later than 21 days after the closing day of the ballot (paragraph 98(2A)(b)):
   1. on the amalgamated organisation’s website (subparagraph 98(2A)(b)(i)); or
   2. if the amalgamated organisation does not have a website – in a manner that is reasonably accessible to the organisation’s members (subparagraph 98(2A)(b)(ii)).

Item 80 – subregulation 98(3)

Item 81 – subregulation 98(5)

These items repeal subregulations 98(3) and (5), and replace them with new subregulation 98(3). New subregulation 98(3) provides that the amalgamated organisation from which the constituent part withdrew or sought to withdraw must, as soon as practicable after receiving a report mentioned paragraph (2)(a) or (2A)(a), publish a notice of the availability of the report:

1. on the amalgamated organisation’s website (subparagraph 98(3)(i)); or
2. if the amalgamated organisation does not have a website – in a manner that is reasonably accessible to the organisation’s members (subparagraph 98(3)(ii)).

Subregulation 98(5) is repealed on the basis that the requirements currently contained in the subregulation are incorporated into the new drafting of subregulation 98(3).

Item 82 – regulation 100

This item amends regulation 100 to require designated officials conducting the ballot to preserve the ballot papers.

Item 83 – subregulation 101(1)

Item 84 – subregulation 101(2)

These items amend regulation 101 to the effect that a person entitled to vote in a ballot can request the designated official to give the person specified information not available in the post-ballot report, for the purpose of determining whether there has been an irregularity in relation to the ballot.

Item 85 – subparagraph 102(1)(b)(i)

Item 86– subparagraph 102(1)(b)(iii)

Item 87 – paragraph 102(1)(c)

Item 88 – paragraph 102(1)(c)

The amendments to subparagraph 102(1)(b)(i) specifies that members of the constituent part of the organisation whose members were eligible to vote in the ballot may make an application to the FWC under subsection 108(1) of the Act for an inquiry into alleged irregularities in relation to the ballot.

The other amendments to paragraph 102(1)(b) provide that an application to the FWC under subsection 108(1) of the Act for an inquiry may also be made by:

1. for a ballot conducted by the AEC—the Electoral Commissioner (subparagraph 102(1)(b)(iii)); or
2. for a ballot conducted by a designated official—the designated official (subparagraph 102(1)(b)(iv)).

This amendment also amends incorrect references to the Federal Court and the Federal Court Rules, and replaces them with the correct references to the FWC and the Procedural Rules in subparagraph 102(1)(c).

Item 89 – subregulation 107(3)

This amendment is a technical amendment that clarifies that the relevant organisation is the relevant amalgamated organisation.

Item 90 – at the end of paragraph 107(5)(c)

This amendment is consequential to the introduction of section 95A in the Act. New paragraph 107(5)(c) requires that for subsection 109(5) of the Act, an application under subsection 109(1) of the Act must be lodged in the Federal Court together with the final version of the written outline mentioned in section 95 of the Act and the statements of names, and rules and alterations of rules, mentioned in section 95A of the Act.

Item 91 – regulation 110

This item repeals and replaces regulation 110 in relation to enterprise agreements made before a withdrawal of a constituent part from an amalgamated organisation.

Subregulation 110(2) provides that following the withdrawal of a constituent part from an amalgamated organisation, if:

1. the amalgamated organisation and the constituent part (the newly registered organisation) are both covered by an enterprise agreement by virtue of section 113 of the Act (paragraph 110(2)(a)); and
2. the amalgamated organisation is no longer entitled to represent the industrial interests of the employees covered by the agreement (paragraph 110(2)(b)),

then, on and from the day the registration takes effect, any rights under or relating to the agreement are exercisable only by the newly registered organisation.

The kinds of rights referred to in subregulation 110(2) are rights arising under the Fair Work Act 2009 (Fair Work Act) relating to applications to vary an agreement. For example, regulation 110(2) ensures that only the newly registered organisation can:

• initiate proceedings to enforce the agreement (other than a term that would be an outworker term if it were included in a modern award) without having to formally act on behalf of a member (see: section 50; item 4 in subsection 539(2); subsection 540(3) of the Fair Work Act);
• apply to the FWC for approval of a variation to the agreement made by employers and employees (section 210 of the Fair Work Act);
• apply to the FWC for the variation of the enterprise agreement to remove an ambiguity or uncertainty, or deal with a dispute about a proposed variation (section 217 of the Fair Work Act);
• apply to the FWC for the termination of an enterprise agreement where its termination has been agreed to by the employer and employees (section 222 of the Fair Work Act); and
• apply to the FWC for the termination of the enterprise agreement if it has passed its nominal expiry date (section 225 of the Fair Work Act)).

A new note to subregulation 110(2) reminds the reader that, under paragraph 109(1)(c) of the Act, the Federal Court must, on application, make orders it thinks fit in connection with giving effect to the withdrawal of a constituent part from an amalgamated organisation, which may include orders relating to the coverage of enterprise agreements.

This regulation is prescribed for the purposes of section 124 of the Act, which provides a general regulation making power to provide for any other matters relating to giving effect to the withdrawal of constituent parts from amalgamated organisations.

Item 92 – regulation 113 (heading)

Item 93 – subregulation 113(1)

Item 94 – subregulation 113(2)

These items amend regulation 113 to extend the requirement that a person other than the person conducting the ballot must not do, or purport to do, any act in the conduct of the ballot other than as directed or authorised by the person conducting the ballot, to ballots conducted by a designated official.

The requirement to advise the General Manager and the Commissioner of a possible contravention not later than 21 days after becoming aware of the possible contravention, applies to a designated official.

Item 95 – subparagraph 114(a)(i)

Item 96 – after paragraph 114(a)

Item 97 – paragraph 114(b)

The amendment to paragraph 114(a) is consequential to item 51.

New paragraph 114(aa) provides that no action or proceeding, civil or criminal, for defamation can be taken against designated officials conducting a ballot under the Act or the Regulations in relation to:

1. the printing or issuing of a document or other material that is required or permitted under regulation 91 or 94B to be contained in the sealed envelope mentioned in that regulation (subparagraph 114(aa)(i)); or
2. the printing or issuing of a post ballot report given by the designated official under 107 of the Act (subparagraph 114(aa)(ii)).

The amendment to paragraph 114(b) is consequential to new paragraph 114(aa).

Item 98 – after paragraph 168(2)(c)

Item 99 – paragraph 168(2)(d)

Regulation 168 is amended to include the following provisions as civil penalty provisions:

1. subregulation 87A(2) (direction by designated official) (paragraph 168(2)(ca));
2. subregulation 89(5) (unauthorised use of information) (paragraph 168(2)(cb)).

The amendment to paragraph 168(2)(d) is consequential to item 70.

Item 100 – subregulation 171(1)

Item 101 – after subregulation 171(1)

These items include new subregulation 171(1A) to provide that if the civil penalty provision mentioned in paragraphs 168(2)(ca), (d) or (f) relates to a direction or authorisation by a designated official, only the following persons may apply for an order under this Part:

1. the General Manager (paragraph 171(1A)(a));
2. the Commissioner (paragraph 171(1A)(b)).

Item 102 – Schedule 3 (Form 2)

This item repeals and replaces Form 2 of Schedule 3 which is to be used for the purpose of an application for a ballot under Part 3 of Chapter 3 to decide whether a constituent part should withdraw from an amalgamated organisation.

Item 103 – Schedule 3 (Form 3)

This item repeals and replaces Form 3 of Schedule 3 which is to be used for the purpose of a ballot paper for a ballot under Part 3 of Chapter 3 in relation to whether a constituent part should withdraw from an amalgamated organisation.

Item 104 – Schedule 3 (Form 4)

This item repeals and replaces Form 4 of Schedule 3 which is to be used for the purpose of an application for determination of day of withdrawal of a constituent part from an amalgamated organisation.