Workplace Relations Regulations (Amendment)

Workplace Relations Regulations (Amendment) 1997 No. 424

EXPLANATORY STATEMENT

Statutory Rules 1997 No. 424

(Issued by the authority of the Minister for Workplace Relations and Small Business)

Workplace Relations Act 1996

Workplace Relations Regulations (Amendment)

Subsection 359(1) of the Workplace Relations Act 1996 (the WR Act) provides that the GovernorGeneral may make regulations prescribing, inter alia, matters required or permitted by the WR Act, or necessary or convenient to give effect to the WR Act.

Paragraph 253ZJA(1)(b) of the WR Act allows regulations to be made prescribing matters that are required to be addressed in a written outline of a proposal for a constituent part of an amalgamated organisation to withdraw from that organisation.

Paragraph 253ZX(3)(b) of the WR Act allows regulations to prescribe persons who may apply to the Federal Court for certain orders in relation to conduct directed against those seeking to access the withdrawal from amalgamation provisions.

The purpose of these regulations is to make a range of amendments to Division 5A of Part VII of the Workplace Relations Regulations, which relates to withdrawal by a constituent part from an amalgamated organisation. In large part the proposed regulations concern matters inserted into the WR Act. by the Workplace Relations and Other Legislation Amendment Act 1997 (the WROLA Act), including prescribing matters that must be addressed in an outline of a proposed withdrawal from an amalgamation.

The regulations:

*       prescribe matters that an applicant for a ballot on the question of withdrawal from an amalgamation must include in the outline they are required to lodge with their application (this outline is distributed to voters, to enable them to make an informed decision) (regulation 2);

*       prescribe an officer of a branch or part of the amalgamated organisation as a person who may seek court orders in relation to conduct directed against that branch or part as a result of seeking, or proposing to seek, access to the withdrawal from amalgamation provisions of the WR Act (regulation 7);

*       make amendments consequent upon the passage of the AROLA Act (regulations 3, 6 and 8 and sub-regulation 5.2);

*       make other minor amendments (regulation 4 and sub-regulation 5.1). Details of the regulations, which commence on gazettal, are attached.

ATTACHMENT

WORKPLACE RELATIONS REGULATIONS (AMENDMENT)

Regulation 1

Sub-regulation 1.1 is a formal provision, providing that the regulations amend the Workplace Relations Regulations (the existing Regulations).

Regulation 2

Sub-regulation 2.1 inserts a new regulation 98JA.

Regulation 98JA prescribes, for the purposes of paragraph 253ZJA(1)(b) of the WR Act, the matters that an applicant for a ballot for withdrawal from an amalgamation must address in the written outline they are required by section 253ZJA to submit with their application.

The matters to be prescribed largely reflect those matters required to be included in the application to the Court for a withdrawal from amalgamation ballot which relate directly to the constituent part. (Form 11A, in Schedule 1 to the existing Regulations, sets out the matters which must be included in an application for a ballot.)

This will minimise the burden on applicants for a ballot, whilst also ensuring that voters have access to material similar to that required to be put before the Court.

Specifically, the outline must:

*       identify the amalgamated organisation and the constituent part;

*       specify the name proposed for the constituent part after withdrawal day;

*       set out particulars of the rules, immediately before amalgamation, of the constituent part (ie., the organisation de-registered, or a State/Territory branch of such an organisation), and of any proposed changes to those rules after the withdrawal from amalgamation;

*       contain detail about the current assets and liabilities of the amalgamated organisation, and the situation prior to the amalgamation from which it is proposed to withdraw;

*       contain information about any proposal for the distribution of assets and liabilities.

Regulation 3

Sub-regulation 3.1 deletes regulation 98K of the existing Regulations. This regulation has been superseded by an amendment made to the WR Act by the WROLA Act.

Subsection 253ZL(2) of the WR Act formerly required the Court to have regard to any submissions made by persons authorised by the regulations to make such submissions. Regulation 98K prescribed the following:

(a)       an applicant for the ballot;

(b)       the amalgamated organisation;

(c)       a creditor of the amalgamated organisation;

(d)       any other person who would be affected by the proposed withdrawal of the constituent part from the amalgamated organisation.

Subsection 253ZL(2) has now been replaced. The fist of persons from whom the Court may hear submissions (set out in new subsection 253ZL(2)) is the same as that in regulation 98K.

Regulation 4

Sub-regulation 4.1 amends regulation 98N of the existing Regulations to ensure consistency with the WR Act.

Prior to this amendment, regulation 98N provided that the roll of voters was to consist of those who are members of the amalgamated organisation and who would be eligible for membership under the rules proposed for the withdrawing part after the withdrawal from amalgamation.

This was in conflict with subsection 253ZL(1) of the WR Act, which provides for a ballot of 1 constituent members'. The term 'constituent member' is defined (in subsection 253ZI(1) of the WR Act) as meaning a member of the amalgamated organisation who would be eligible for membership of the constituent part if it were still registered as an organisation with the same rules as it had when it was de-registered.

The amendment to regulation 98N ensures consistency with the WR Act by providing that the roll is to consist of 'constituent members'.

Regulation 5

Sub-regulation 5.1 makes a minor amendment to paragraph 98T(b) of the existing Regulations.

Regulation 98T makes provision concerning the despatch of ballot papers to each person entitled to vote in a ballot by the electoral official conducting the ballot. Paragraph 98T(b) requires the electoral official to dispatch (in addition to a ballot paper and a voting envelope) other material that he or she considers relevant to the ballot.

The amendment to paragraph 98T(b) makes express the administrative law requirement that the electoral official must exercise this power reasonably.

This amendment gives effect to a commitment given by the Minister of Workplace Relations and Small Business to the Senate Standing Committee on Regulations and Ordinances in April that this provision would be amended to include a reasonableness requirement when the relevant regulations were next amended.

Sub-regulation 5.2 adds documents required by the WR Act to be provided to electors to the list of documents that an electoral official must provide with ballot papers. (As a result of amendments made by the WROLA Act, a copy of the outline and any 'yes' or 'no' cases submitted to the Court must be distributed to electors: subsection 253ZM(2) refers).

Regulation 6

Section 253ZQA of the WR Act (inserted by the WROLA Act) makes provision for members of a withdrawing part to exercise a choice as to the organisation to which they belong after withdrawal (ie the new organisation created by the withdrawal, or the amalgamated organisation).

Subsection 253ZQA(8) provides that a member may indicate a choice to transfer to the new organisation at any time before the withdrawal takes effect by giving notice to the amalgamated organisation or to the applicant.

Regulation 98J of the existing Regulations provides that an application for a ballot must identify a 'representative constituent member' to receive documents on behalf of the applicant and for any other purpose specified in the regulations.

Sub-regulation 6.1 inserts a new regulation 98ZJA to provide that, for the purposes of giving notice to the applicant under subsection 253ZQA(8), the notice is to be given to the person identified in the application as the 'representative constituent member'.

Regulation 7

Section 253ZX (inserted into the WR Act by the WROLA Act) prohibits imposition or threatened imposition of a penalty, forfeiture or disability because of certain acts or omissions in connection with a proposed withdrawal from an amalgamation. The Court is empowered to make necessary orders, including fines and injunctions.

Subsection 253ZX(3) provides that an application for such orders may be made by, inter alia, any person prescribed by the regulations.

Sub-regulation 7.1 inserts a new regulation 98ZS, which provides that where a penalty, forfeiture or disability is imposed, or threatened to be imposed, on a branch, or other part of an organisation, an officer of the branch or part is a person who may make an application for an order to enforce the new provisions designed to protect those seeking to access the withdrawal from amalgamation provisions.

Regulation 8

Sub-regulations 8.1 and 8.2 amend the form of the application for a ballot on the question of whether or not a constituent part of an amalgamated organisation should withdraw from the amalgamation (Form 11A, Schedule 1 to the existing Regulations).

The amendments ensure that the form reflects amendments made by the WROLA Act.

Sub-regulation 8.1 inserts a new item 3A into Form 11A. New item 3A sets out information to be provided in circumstances where the constituent part seeking to withdraw is a 'separately identifiable constituent part'.

The concept of a 'separately identifiable constituent part' was introduced by the WROLA Act, and is defined as occurring where an organisation that was de-registered upon amalgamation (or a State or Territory branch of such an organisation) has remained separately identifiable under the rules of the amalgamated organisation as a branch, division or part of that organisation. (Where a 'separately identifiable constituent part' exists, only those members who are included in that part are to be entitled to vote on the question of whether the part should withdraw from an amalgamation.)

The information to be required by new item 3A reflects the information required to be provided where the applicant does not assert that the constituent part is a 'separately identifiable constituent part'.

Sub-regulation 8.2 amends item 5 in Form 11A to reflect the possibility of withdrawal by a 1 separately identifiable constituent part'.

Sub-regulation 8.3 makes a minor drafting amendment to Form 11A.