Chapter 5 Industrial organisations
Part 1 Principles of association
(1) A person is entitled to be a member of an industrial organisation, but can be prevented from becoming or remaining a member by the organisation acting under its rules and in accordance with section 260.(2) A person cannot be compelled to become, or remain, a member of an industrial organisation.
210 Freedom from victimisation
(1) An employer or industrial organisation must not victimise an employee or prospective employee because the person:(a) is or was a member or an official of an industrial organisation of employees or otherwise an elected representative of employees, or(b) does not belong to an industrial organisation of employees, or holds a certificate of conscientious objection to becoming a member of such an industrial organisation, or(c) refuses to engage in industrial action, or(d) exercises functions conferred under this Act, or(e) claims a benefit to which the person is entitled under the industrial relations legislation or an industrial instrument, or(f) informs any person of an alleged breach by an employer of the industrial relations legislation or of an industrial instrument, or(g) participates, or proposes to participate, in proceedings relating to an industrial matter, or(h) engages in, or proposes to engage in, any public or political activity (unless it interferes with the performance of the employee’s duties), or(i) informs any person of an alleged breach of the Protection of the Environment Operations Act 1997 by an employer, or(ia) informs any person or body of, or gives evidence in relation to, a notifiable occurrence within the meaning of the Rail Safety Act 2008, or(ib) reports a matter relating to the safety or reliability of railway, bus or ferry operations to the Chief Investigator of the Independent Transport Safety and Reliability Regulator or an officer of the Ministry of Transport, or(ic) informs any person or body of, or gives evidence in relation to, a breach or alleged breach of the Dangerous Goods (Road and Rail Transport) Act 2008 or the regulations under that Act (or a provision of a law of another State or Territory that corresponds to that Act or those regulations), or(j) makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions under Part 5 (Consultation, representation and participation) of the Work Health and Safety Act 2011, or(k) assists the Independent Pricing and Regulatory Tribunal or Scheme Administrator in the exercise of its functions under the Electricity Supply Act 1995.(2) In any proceedings under section 213 to enforce the provisions of this section, it is presumed that an employee or prospective employee who suffers any detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer or industrial organisation satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action.
211 No preference to members of employee organisations over non-members
(1) An industrial instrument cannot confer a right of preference of employment in favour of a member of an industrial organisation of employees over a person who is not a member of such an organisation.(2) This section applies to industrial instruments in force on the commencement of this section.(3) For the purposes of this section, a member of an industrial organisation includes a person who has applied to become a member of the organisation.
212 Conscientious objection to membership of organisation
(1) The Industrial Registrar may issue a certificate of conscientious objection to a person who satisfies the Industrial Registrar that he or she holds a genuine conscientious objection to becoming a member of an industrial organisation of employees.(2) The Industrial Registrar may refuse to issue or may cancel such a certificate if the person does not pay the Industrial Registrar fees (including periodic fees) of such amount as the Industrial Registrar determines would be payable for membership of a relevant industrial organisation of employees.(3) A certificate of conscientious objection may, without limiting this section, be issued to a person (whether or not an employee) who satisfies the Industrial Registrar that he or she is a practising member of a religious society or order (such as the Brethren) whose tenets or beliefs preclude membership of any organisation or body other than that society or order. In the case of a certificate issued to a person who is not an employee, a reference in this section to a relevant organisation of employees is taken to be a reference to a relevant organisation of employers.
(1) The Commission may, by order, enforce the provisions of this Part on the application of an industrial organisation or by any person affected by a contravention of this Part.(2) The Commission may, in particular, for that purpose do any one or more of the following:(a) order the reinstatement or re-employment of an employee,(b) order the employer to promote or otherwise advance an employee in his or her employment,(c) order the employer to pay an employee or prospective employee the whole or any part of the amount of remuneration or other financial benefits lost or foregone,(d) order the employer to employ a prospective employee,(e) order the employer not to carry out a threat to victimise an employee or not to make any further such threat,(f) order an industrial organisation (or its officials or employees) to take any particular action or to cease any particular activity,(g) make consequential orders (including orders concerning continuity of service).(3) An application for an order under this section must be made within 21 days after the contravention concerned.(4) The Commission may accept an application that is made out of time if the Commission considers there is sufficient reason to do so, having regard in particular to:(a) the reason for, and the length of, the delay in making the application, and(b) any hardship that may be caused to the applicant or other party if the application is or is not rejected, and(c) the conduct in relation to which the order is sought.
This Part applies despite anything to the contrary in an industrial instrument.
215 State peak council—employees
For the purposes of this Act, Unions NSW is the State peak council for employees.
216 State peak councils—employers
(1) For the purposes of this Act, an organisation approved for the time being by the Commission under this section is a State peak council for employers. More than one organisation may be so approved.(2) The Commission may approve as a State peak council for employers an organisation that is representative of a significant number of member associations or organisations of employers (being associations or organisations whose members operate primarily in New South Wales).(3) The Commission may at any time revoke any such approval for any reason it thinks fit.(4) The regulations may make provision for or with respect to approvals under this section and the application to an approved organisation of any requirements applicable to industrial organisations (with or without modifications).
Part 3 Registration of organisations
Notes.1 Some defined terms in the Dictionary that are relevant to this Part include office in an organisation; officer of an organisation; committee of management of organisation.
2 The jurisdiction of the Commission under this Part is exercisable only by the Commission in Court Session.
217 Organisations capable of applying for registration
(1) Any of the following organisations may apply to the Industrial Registrar to be registered under this Chapter:(a) an organisation of employees or employers that is formed for the purpose of its incorporation under this Act, other than a federally registered organisation (or a branch of such an organisation) or another organisation which is already incorporated under the Corporations Act 2001 of the Commonwealth, the Associations Incorporation Act 2009 or any other Act (a State organisation),(b) subject to subsection (2), an organisation of employees or employers that is a federally registered organisation (without branches) or a branch of such an organisation (a federal organisation),(c) an organisation of employers that is incorporated under the Corporations Act 2001 of the Commonwealth, Associations Incorporation Act 2009 or any other Act, other than a federally registered organisation (a separate organisation).(2) A federal organisation of employees cannot apply for registration under this Chapter unless the application is made with the consent of each registered State organisation of employees whose constitutional coverage extends to all or any of the class of members proposed to be covered by the federal organisation.(3) The regulations may declare that any specified organisation or class of organisation is capable, or is taken, to be registered under this Chapter. The regulations may modify the application of this Chapter in respect of any such organisation.(4) In this section, federally registered organisation means an organisation registered under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth.
(1) The Industrial Registrar is to grant the application for registration if, and only if:(a) the organisation is a genuine organisation of a kind that is capable of registration under this Chapter, and(b) the organisation is an organisation for furthering or protecting the interests of its members, and(c) the organisation is capable of representing its members in connection with industrial matters, and(d) in the case of an organisation of employees—the organisation has, at the time of registration, at least 50 members who are employees, and(e) in the case of an organisation of employers—the organisation has, at the time of registration, at least 2 members who are employers and those members employ between them at least 50 employees, and(f) the rules of the organisation make provision as required by this Chapter to be made by the rules of such an organisation, and(g) in the case of an organisation consisting of the members of a branch of an organisation—the branch is of sufficient importance to be registered separately, and(h) the organisation does not have the same name as that of an organisation registered under this Chapter and does not have a name that is so similar to such a name as to be likely to cause confusion, and(i) the name of the association is not, in the opinion of the Industrial Registrar, unsuitable to be the name of a registered organisation, and(j) in the case of a State organisation—a majority of the members present at a general meeting of the organisation or an absolute majority of the committee of management of the organisation has passed, under the rules of the organisation, a resolution in favour of registration of the organisation, and(k) in the case of a federal organisation—the rules of the organisation (including any parent body) confer on the organisation applying for registration a reasonable degree of autonomy in the administration and control of New South Wales assets and in the determination of questions affecting solely or principally members resident in New South Wales, and(l) in the case of a federal organisation of employees—the application for registration of the organisation is made with the consent of each registered State organisation whose constitutional coverage extends to all or any of the class of members proposed to be covered by the federal organisation, and(m) in the case of an organisation of employees—there is no other industrial organisation of employees to which the members of the organisation might conveniently belong.(2) An organisation may be registered even if its members include:(a) officers of the organisation, or(b) in the case of an organisation of employers—persons other than employees who carry on business but who do not have any employees, or(c) in the case of an organisation of employers—persons admitted to membership who have ceased to be employers, or(d) in the case of an organisation of employees—independent contractors who would be eligible for membership if their work were done as an employee.However, an organisation with any such members may be registered only if it is effectively representative of the members who are employees or employers, as the case requires.
219 Applications for registration
(1) An application for registration under this Chapter is to be made in the manner and form approved by the Industrial Registrar.(2) The Industrial Registrar may require information in the application to be verified by statutory declaration and may require proof of the authority of the applicants to act on behalf of the organisation concerned.(3) An applicant must, within 14 days after submitting an application, publish a notice of the application in a newspaper circulating throughout the State.(4) The Industrial Registrar must, within 14 days after receiving an application, notify any organisation registered under this Chapter that, in the opinion of the Industrial Registrar, may be affected by the application.(5) The Industrial Registrar may grant an applicant leave to amend the application (including for the purposes of a change in the name or rules of the organisation to meet an objection to registration).
220 Objections to registration
(1) Any person may lodge with the Industrial Registrar a notice of objection to an application for registration. The notice must be lodged within 28 days after publication by the applicant of the notice of the application in a newspaper or within 28 days after being notified by the Industrial Registrar of the application (whichever last occurs).(2) The notice of objection must set out with reasonable particularity the ground or grounds of the objection and the facts and circumstances relied on as establishing those grounds, and must be verified by statutory declaration.(3) A copy of the notice of objection must be served on the applicant for registration by the objector within 7 days after lodging the objection with the Industrial Registrar.(4) After conducting a hearing into any objections to an application for registration, the Industrial Registrar is to determine the application. The Industrial Registrar may determine the application without a hearing if there are no objections.(5) The procedure to be followed at any hearing in connection with objections to registration is, subject to the rules of the Commission, to be as directed by the Industrial Registrar.Note. Section 194 provides for an appeal to the Commission against a decision of the Industrial Registrar on the application for registration by the applicant or an objector.
(1) When the Industrial Registrar grants an application for registration, the Industrial Registrar must immediately record, in the register kept for the purpose:(a) the name of the organisation, and(b) whether the organisation is an organisation of employees or employers, and(c) whether the organisation is a State, federal or separate organisation, and(d) such other particulars of the organisation as are prescribed by the regulations or determined by the Industrial Registrar, and(e) the date of the entry.(2) An organisation is taken to be registered under this Chapter as an industrial organisation of employees or an industrial organisation of employers when the Industrial Registrar records that information in the register.(3) The Industrial Registrar must issue to each organisation registered under this Chapter a certificate of registration. The regulations may make provision for or with respect to certificates of registration.
222 Incorporation of State organisations on registration
A State organisation, when registered under this Chapter:(a) is a body corporate, and(b) has perpetual succession, and(c) has power to purchase, take on lease, hold, sell, lease, mortgage, exchange and otherwise own, possess and deal with any real or personal property, and(d) is required to have a seal, and(e) may sue or be sued in its registered name.
223 Continuation of registration of existing industrial organisations
(1) Any industrial organisation of employees or employers registered or recognised as such under Chapter 5 of the Industrial Relations Act 1991 immediately before the repeal of that Act is taken to be an industrial organisation of employees or employers registered under this Chapter.(2) The Industrial Registrar is to record in the register kept under this Chapter whether such an organisation is a State, federal or separate organisation.(3) If the rules of such an organisation do not comply with the requirements of this Chapter, the organisation must ensure that the rules comply with those requirements within 2 years after the commencement of this section. The Industrial Registrar may notify such an organisation of the requirements with which the rules of the organisation do not comply.(4) If the rules of such an organisation have not been duly altered within that 2-year period:(a) in the case of a State organisation, the Industrial Registrar may, by order, alter the rules of the organisation so that they comply with the relevant requirements, or(b) in any other case, the failure to alter the rules is a ground for the cancellation of the registration of the organisation under Division 2.
224 Registered office of organisation
(1) An industrial organisation must have an office in New South Wales for the time being registered with the Industrial Registrar to which all communications and notices may be addressed.(2) An industrial organisation must give notice of the address of its registered office and of any change in that address to the Industrial Registrar.(3) Until the organisation has given that notice, it is taken not to have a registered office.(4) A contravention of this section is a sufficient ground for the cancellation of the registration of the organisation under Division 2 or for the imposition of any other penalty under that Division.
Division 2 Cancellation of registration
225 Institution of proceedings for cancellation of registration
(1) An industrial organisation or, with the leave of the Commission, a person who has a sufficient interest in the matter may apply to the Commission for the cancellation of the registration of an industrial organisation.(2) The Commission may institute proceedings under this Division on its own initiative.(3) An industrial organisation may apply for the cancellation of its own registration.(4) An industrial organisation must be given an opportunity to be heard by the Commission in any proceedings against the organisation under this Division.
226 Grounds on which registration may be cancelled
The registration of an industrial organisation may be cancelled on any one or more of the following grounds:(a) that the organisation, or a substantial number of its members, has or have contravened the industrial relations legislation, any industrial instrument, or any order of the Commission,(b) that the industrial organisation, or a substantial number of its members, has or have engaged in any industrial action that has had, is having or is likely to have, a substantial adverse effect on the safety, health or welfare of the community or a part of the community,(c) that the organisation or a substantial number of its members, has or have engaged in any industrial action that has had or is having a major and substantial adverse effect on the provision of any public service by the State or an authority of the State contrary to the public interest and without reasonable excuse,(d) that the industrial organisation was registered by mistake,(e) that the industrial organisation is no longer effectively representative of the members who are employees or employers, as the case requires,(f) that the organisation has applied for the cancellation of its own registration,(g) that the organisation is defunct,(h) in the case of a federal organisation—that the rules of the organisation (and any parent body) no longer confer on the organisation a reasonable degree of autonomy in the administration and control of New South Wales assets and in the determination of questions affecting solely or principally members resident in New South Wales.
227 Cancellation of registration of industrial organisation
(1) The Commission may cancel the registration of an industrial organisation if the Commission considers that a ground for cancellation has been established.(2) However, the Commission is not to cancel the registration of an industrial organisation on a ground referred to in section 226 (a)–(c) unless the Commission considers that it is appropriate to cancel the registration in the circumstances because of the gravity of the case.
228 Consequences of cancellation
(1) On cancellation of registration of an industrial organisation, the organisation ceases to be an industrial organisation for the purposes of this Act.(2) The cancellation of registration does not relieve the industrial organisation or any of its members from any penalty or liability incurred by the industrial organisation or its members before the cancellation.(3) The cancellation of registration of a State organisation also has the following consequences:(a) the organisation ceases to be a body corporate under this Act, but does not thereby cease to be an unincorporated organisation,(b) the Commission may, on application by a person interested, make such order as it considers appropriate in relation to the satisfaction of the debts and obligations of the organisation out of the property of the organisation,(c) the property of the incorporated organisation is, subject to any such order, the property of the unincorporated organisation and is required to be held and applied for the purposes of the organisation under the rules of the organisation so far as they can still be carried out or observed.
229 Alteration of rules (instead of cancellation of registration) of organisation
If:(a) the Commission finds that a ground of cancellation has been established, and(b) that finding is made, wholly or mainly, because of the conduct of a particular class or group of members of the industrial organisation,the Commission may, if it considers it just to do so, instead of cancelling the registration of the industrial organisation, make a demarcation order under Part 6 so as to exclude from eligibility for membership of the industrial organisation persons belonging to the class or group.
230 Suspension or other orders where cancellation of registration deferred
(1) The Commission may, instead of making an order cancelling registration, or altering rules, of an industrial organisation, make one or more of the following orders:(a) an order suspending, to the extent specified in the order, all or any of the rights, privileges or capacities of the industrial organisation, or of all or any of its members as such, under this or any other Act or under industrial instruments or orders made under this or any other Act,(b) an order giving directions as to the exercise of any rights, privileges or capacities that have been suspended,(c) an order restricting the use of the funds or property of the industrial organisation, and for the control of the funds or property for the purpose of ensuring observance of the restrictions.(2) Having made such an order, the Commission must defer the determination of the question whether to cancel the registration of the industrial organisation concerned until:(a) any order made under this section ceases to be in force, or(b) on application by a party to the proceeding, the Commission considers that it is just to determine the question, having regard to any evidence given relating to the observance or non-observance of any order and to any other relevant circumstance,whichever happens first.(3) An order made under this section has effect despite anything in the rules of the industrial organisation concerned.(4) An order made under this section:(a) may be revoked by the Commission, by order, on application by a party to the proceeding concerned, and(b) unless sooner revoked, ceases to be in force:(i) 6 months after it came into force, or(ii) at the expiration of such longer period after it came into force as is ordered by the Commission on application by a party to the proceeding made while the order remains in force.(5) A person who contravenes an order made under subsection (1) (b) or (c) is guilty of an offence.Maximum penalty: 50 penalty units.
231 Commission may make necessary ancillary or consequential orders
(1) The Commission may make such orders as are necessary to give effect to, or in consequence of, an order made under this Division.(2) In particular, the Commission may, if it cancels the registration of an industrial organisation, direct that an application by that organisation to be registered as an industrial organisation is not to be dealt with under this Act before the end of a specified period.
232 Cancellation or other order to be recorded
The Industrial Registrar must record a cancellation or other order made under this Division, and the date it takes effect, in the register kept under this Part.
Part 4 Regulation of State industrial organisations
233 Application of Part to State organisations
This Part applies to industrial organisations that are State organisations incorporated under this Act.Note. The jurisdiction of the Commission under this Part (except Division 3) may be exercised only by the Commission in Court Session.
234 State organisations to have rules
A State organisation must have rules that make provision as required by this Part.
235 General requirements for rules of State organisations
(1) The rules of a State organisation:(a) must not be contrary to, or fail to make provision as required by, this Act or an award or order of the Commission, or otherwise be contrary to law, and(b) must not be such as to prevent or hinder members of the organisation from observing any law or the provisions of any award or order of the Commission, and(c) must not impose on members of the organisation, or on applicants for membership of the organisation, any conditions, obligations or restrictions that, having regard to the objects of this Act and the purposes of registration under this Chapter, are oppressive, unreasonable or unjust.(2) The rules must comply with any requirements of the regulations.
236 Rules to specify name, purposes and conditions of eligibility for membership
The rules of a State organisation must specify:(a) the name of the organisation, and(b) the purposes for which the organisation is formed, and(c) the conditions of eligibility for membership,and may specify the industry in relation to which it is formed.
237 Rules to provide for procedural and administrative matters
(1) The rules of a State organisation must provide for:(a) the entrance fees, subscription, affiliation and other amounts (if any) to be paid by members of the organisation, and(b) the procedure (if any) for the disciplining of members and the mechanism (if any) for appeals by members in respect of disciplinary action taken against them, and(c) the name, constitution, membership, powers and duties of the committees of, and the powers and duties of holders of offices in, the organisation and, in particular:(i) the election or appointment of members of the committees, and(ii) the terms of office of members of the committees, and(iii) the grounds on which, or the reasons for which, the office of a member of a committee becomes vacant, and(iv) the filling of casual vacancies occurring on the committees, and(v) the quorum and procedure at meetings of the committees, and(d) the manner of summoning meetings of members of the organisation and meetings of the committees of the organisation, and(e) the quorum and procedure at general meetings of members of the organisation and whether members are entitled to vote by proxy at general meetings, and(f) the intervals between general meetings of members of the organisation and the manner of calling general meetings, and(g) the time within which, and the manner in which, notices of general meetings and notices of motion are to be given, published or circulated, and(h) the removal of holders of offices in the organisation, and(i) the control of committees of the organisation by the members of the organisation, and(j) the sources from which the funds of the organisation are to be, or may be, derived, and(k) the manner in which the funds of the organisation are to be managed and, in particular, the mode of drawing and signing cheques on behalf of the organisation, and(l) the manner in which documents may be executed by or on behalf of the organisation, and(m) the manner in which the property of the organisation is to be controlled and its funds invested, and(n) the conditions under which funds may be spent, and(o) the custody of books, documents and securities of the organisation, and(p) the inspection by members of the organisation of books and documents of the organisation, and(q) the registered office of the organisation (which must be within New South Wales), and(r) the annual or periodic auditing of the accounts of the organisation, including the appointment of an auditor and the grounds on which, or the reasons for which, the position of auditor becomes vacant, and(s) the keeping of accounting records by the organisation, and(t) the times when, and the terms on which, persons become or cease (otherwise than by resignation) to be members, and(u) the resignation of members, and(v) the keeping of a register of the members, arranged, if there are branches of the organisation, according to branches, and(w) the manner in which the rules may be altered or rescinded, and(x) any other matters that may be prescribed by the regulations.(2) The rules of a State organisation may provide for the removal from office of a person elected to an office in the organisation only if the person has been found guilty, under the rules of the organisation, of:(a) misappropriation of the funds of the organisation, or(b) a substantial breach of the rules of the organisation, or(c) gross misbehaviour or gross neglect of duty,or has ceased, under the rules of the organisation, to be eligible to hold office.(3) The rules of a State organisation must require the organisation to inform applicants for membership, in writing, of:(a) the financial obligations arising from membership, and(b) the circumstances, and the manner, in which a member may resign from the organisation.(4) The rules of an organisation may also provide for any other matter.(5) In this section:committee, in relation to a State organisation, means a collective body of the organisation that has powers of the kind mentioned in the definition of office in the Dictionary.
238 Rules to provide for elections for offices
(1) The rules of a State organisation must provide for the election of the holder of each office in the organisation by:(a) a particular direct voting system, or(b) a particular collegiate electoral system that, in the case of a full-time office, is a one-tier collegiate electoral system.(2) In this section:collegiate electoral system means a method of election comprising a first stage, at which persons are elected to a number of offices by a direct voting system, and a subsequent stage or subsequent stages at which persons are elected by and from a body of persons consisting only of:
(a) persons elected at the last preceding stage, or(b) persons elected at the last preceding stage and other persons (being in number not more than 15% of the number of persons comprising the body) holding offices in the organisation (including the office to which the election relates), not including any person holding such an office merely because of having filled a casual vacancy in the office within the last 12 months, or the last quarter, of the term of the office.direct voting system means a method of election at which the following are eligible to vote subject to reasonable provisions in relation to enrolment:
(a) all financial members, or(b) all financial members included in the division of the organisation that is appropriate having regard to the nature of the office.one-tier collegiate electoral system means a collegiate electoral system comprising only one stage after the first stage.
239 Rules may provide for elections for offices in State branch of Federal organisation to be elections for purposes of State organisation
(1) The rules of a State organisation registered under this Chapter may provide that persons elected to offices in a State branch of a Federal organisation are taken to be validly elected to the corresponding offices in the State organisation registered under this Chapter if the Industrial Registrar is satisfied that:(a) the membership of the State branch of the Federal organisation and the State organisation registered under this Chapter is identical or substantially similar, and(b) the rules of the State branch of the Federal organisation relating to the election of the holders of offices comply substantially with the requirements relating to election of the holders of offices under this Act.(2) The regulations may specify circumstances in which:(a) the membership of organisations is or is not substantially similar for the purposes of subsection (1) (a), or(b) the rules of an organisation comply or do not comply substantially with the relevant provisions for the purposes of subsection (1) (b).(3) In this section, State branch of a Federal organisation means a State branch of an organisation registered under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth.
240 Rules to provide for electoral system
(1) The rules of a State organisation must provide that, if a ballot is required for an election by a direct voting system, it must be a secret postal ballot.(2) A State organisation may lodge with the Industrial Registrar an application for an exemption from subsection (1), accompanied by particulars of proposed alterations of the rules of the organisation, to provide for the conduct of elections by a secret ballot other than a postal ballot.(3) If the Industrial Registrar is satisfied, on application, that:(a) the proposed alterations of the rules:(i) comply with and are not contrary to this Act and awards or orders of the Commission made under this Act, and(ii) are not otherwise contrary to law, and(iii) have been decided in accordance with the rules of the organisation, and(b) the conduct of a ballot under the rules of the organisation as proposed to be altered:the Industrial Registrar may grant to the organisation an exemption from subsection (1).(i) is likely to result in no less participation by members of the organisation in the ballot than would result from a postal ballot, and(ii) will give the members entitled to vote an adequate opportunity of voting without intimidation,(4) Proposed alterations of the rules of a State organisation referred to in subsection (2) take effect if and when the Industrial Registrar grants to the organisation an exemption from subsection (1).(5) An exemption under this section remains in force until revoked under subsection (6).(6) The Industrial Registrar may revoke an exemption granted to a State organisation under this section:(a) on application by the organisation, if the Industrial Registrar is satisfied that the rules of the organisation comply with subsection (1), or(b) if the Industrial Registrar is no longer satisfied:and the Industrial Registrar has given the organisation an opportunity, as prescribed by the regulations, to show cause why the exemption should not be revoked.(i) that the rules of the organisation provide for the conduct of elections by a secret ballot other than a postal ballot, or(ii) of a matter referred to in subsection (3) (b),(7) If the Industrial Registrar revokes an exemption granted to a State organisation on a ground specified in subsection (6) (b), the Industrial Registrar may, by instrument in writing, after giving the organisation an opportunity, as prescribed by the regulations, to be heard, determine such alterations (if any) of the rules of the organisation as are, in the Industrial Registrar’s opinion, necessary to bring them into conformity with subsection (1).(8) An alteration of the rules of a State organisation determined under subsection (7) takes effect on the date of the instrument.
241 Rules to provide for terms of office
(1) The rules of a State organisation must, subject to this section, provide terms of office for officers in the organisation of no longer than 4 years without re-election.(2) The rules of a State organisation may provide that a particular term of office is extended for a specified period, if the extension is for the purpose of synchronising elections for offices in the organisation.(3) Rules made under subsection (2) may apply in relation to a term of office that started before the commencement of this section.(4) The term of an office must not be extended under subsection (2) so that the term exceeds 5 years.
242 Rules may provide for filling of casual vacancies
(1) The rules of a State organisation may provide for the filling of a casual vacancy in an office by an ordinary election or, subject to this section, in any other manner provided in the rules.(2) Any such rules must not permit a casual vacancy, or a further casual vacancy, occurring within the term of an office to be filled, otherwise than by an ordinary election, for so much of the unexpired part of the term as exceeds:(a) 12 months, or(b) three-quarters of the term of the office,whichever is the greater.(3) If, under the rules, a vacancy in an office in a State organisation is filled otherwise than by an ordinary election, the person filling the vacancy must be taken, for the purposes of the relevant provisions, to have been elected to the office under the relevant provisions.(4) In this section:ordinary election means an election held under rules that comply with section 238 (Rules to provide for elections for offices).
relevant provisions, in relation to a State organisation, means:
(a) the provisions of this Act (other than this section), and(b) the rules of the organisation (other than rules made under this section providing for the filling of a casual vacancy in an office otherwise than by an ordinary election).term, in relation to an office, means the total period for which the last person elected to the office by an ordinary election (other than an ordinary election to fill a casual vacancy in the office) was entitled by virtue of that election (having regard to any rule made under section 241 (2)) to hold the office without being re-elected.
243 Rules to provide conditions for loans, grants and donations by State organisations
(1) The rules of a State organisation must provide that a loan, grant or donation of an amount exceeding $1,000 must not be made by the organisation unless the committee of management of the organisation:(a) has satisfied itself:(i) that the making of the loan, grant or donation would be in accordance with the other rules of the organisation, and(ii) in the case of a loan—that, in the circumstances, the security proposed to be given for the repayment of the loan is adequate and the proposed arrangements for the repayment of the loan are satisfactory, and(b) has approved the making of the loan, grant or donation.(2) The rules of an organisation may, however, provide for a person authorised by the rules to make a loan, grant or donation of an amount not exceeding $3,000 to a member of the organisation, if the loan, grant or donation:(a) is for the purpose of relieving the member or any of the member’s dependants from severe financial hardship, and(b) is subject to a condition to the effect that, if the committee of management, at the next meeting of the committee, does not approve the loan, grant or donation, it must be repaid as determined by the committee.(3) In considering whether to approve a loan, grant or donation made under subsection (2), the committee of management must have regard to:(a) whether the loan, grant or donation was made under the rules of the organisation, and(b) in the case of a loan:(i) whether the security (if any) given for the repayment of the loan is adequate, and(ii) whether the arrangements for the repayment of the loan are satisfactory.(4) Nothing in subsection (1) requires the rules of a State organisation to make provision of the kind referred to in that subsection in relation to payments made by the organisation by way of provision for, or reimbursement of, out-of-pocket expenses incurred by persons for the benefit of the organisation.(5) Nothing in subsection (1) requires the rules of a State organisation to make provision of the kind referred to in that subsection in relation to the payment in advance of remuneration and other entitlements to an employee of the organisation.
244 Industrial Registrar may determine alterations of rules
(1) If the rules of a State organisation do not, in the Industrial Registrar’s opinion, make provision required by this Act, the Industrial Registrar may, by instrument in writing, after giving the organisation at least 14 days to be heard on the matter, determine such alterations of the rules as are, in the Industrial Registrar’s opinion, necessary to bring them into conformity with this Act.(2) Alterations determined under this section take effect on the date of the instrument.
245 Alteration of rules of State organisation
(1) An alteration of the rules of a State organisation does not take effect unless the Industrial Registrar consents to the alteration.(2) The Industrial Registrar may consent to an alteration of the rules in whole or part, but must not consent to an alteration unless satisfied that the alteration:(a) complies with, and is not contrary to, this Act and relevant awards or orders of the Commission made under this Act, and(b) is not otherwise contrary to law, and(c) has been made under the rules of the organisation.(3) The Industrial Registrar must not consent to an alteration of the rules of an industrial organisation of employees relating to eligibility for membership of the organisation if, in relation to persons who would be eligible for membership because of the alteration, there is, in the opinion of the Industrial Registrar, another industrial organisation of employees to which those persons might conveniently belong.(4) If particulars of an alteration of the rules of a State organisation have been lodged with or recorded by the Industrial Registrar, the Industrial Registrar may, with the consent of the organisation, amend the alteration for the purpose of correcting a typographical, clerical or formal error.(5) If the Industrial Registrar consents under this section to an alteration, the alteration takes effect on the recording of the change by the Industrial Registrar.(6) This section does not apply in relation to an alteration of the rules of a State organisation that is:(a) determined by the Industrial Registrar under section 244 or 247, or(b) proposed to be made for the purpose of an amalgamation under this Part.
246 Change of name of State organisation
(1) A change in the name of a State organisation does not take effect unless the Industrial Registrar consents to the change and records the change in the relevant register.(2) The Industrial Registrar must not consent to a change unless satisfied that the change has been made under the rules of the organisation.(3) The Industrial Registrar must not consent to a change in the name of a State organisation unless the name satisfies the relevant criteria of registration of an organisation with such a name.(4) The recording of a change of name in the register does not affect any rights and liabilities of the organisation existing immediately before the recording.(5) The Industrial Registrar is to provide the organisation with an amended certificate of registration as soon as practicable after the organisation produces its existing certificate of registration.
247 Rules contravening the requirements for rules under this Part
(1) A member of a State organisation may apply to the Commission for an order under this section in relation to the organisation.(2) An order under this section may declare that the whole or a part of a rule of a State organisation contravenes section 235 (General requirements for rules) or that the rules of a State organisation contravene that section in a particular respect.(3) If an order under this section declares that the whole or a part of a rule contravenes section 235 or that the rules contravene that section in a particular respect, the rule or that part of the rule or the rules in that particular respect, as the case may be, is or are taken to be void from the date of the order.(4) If:(a) the Commission makes an order as mentioned in subsection (2) in relation to the rules of a State organisation, and(b) at the expiration of 3 months from the making of the order, the rules of the organisation have not been altered in a manner that, in the opinion of the Industrial Registrar, brings them into conformity with section 235 in relation to the matters that gave rise to the order,the Industrial Registrar must, after giving the organisation at least 14 days to be heard on the matter, determine, by instrument in writing, such alterations of the rules as will, in the Industrial Registrar’s opinion, bring them into conformity with that section in relation to those matters.(5) The Industrial Registrar may, on the application of the organisation made within the period of 3 months referred to in subsection (4) or within any extension of the period, extend, or further extend, the period.(6) Alterations determined under subsection (4) take effect on the date of the instrument.(7) At any time after a proceeding under this section has been instituted, the Commission may make such interim orders as it considers appropriate in relation to any matter raised in the proceedings.(8) An order under subsection (7) continues in force, unless expressed to operate for a shorter period or sooner discharged, until the completion of the proceeding concerned.
248 Directions for performance of rules
(1) A member of a State organisation may apply to the Commission for an order giving directions for the performance or observance of any of the rules of an organisation by any person who is under an obligation to perform or observe those rules.(2) Before making an order under this section, the Commission must give any person against whom the order is sought an opportunity to be heard.(3) The Commission may refuse to deal with an application for an order under this section unless it is satisfied that the applicant has taken all reasonable steps to try to have the matter the subject of the application resolved within the organisation.(4) At any time after the making of an application for an order under this section, the Commission may make such interim orders as it considers appropriate and, in particular, orders intended to further the resolution within the organisation concerned of the matter the subject of the application.(5) An order under subsection (4) continues in force, unless expressed to operate for a shorter period or sooner discharged, until the completion of the proceeding concerned.(6) An order must not be made under this section that would have the effect of treating as invalid an election, or purported election, to an office in a State organisation or a step in relation to such an election.(7) The Commission, when considering an application under this section, may make an order under section 247.
Division 3 Election of officers
(1) The regulations may make provision for or with respect to the election of officers of State organisations.(2) Any such regulations may deal with any of the matters dealt with in Chapter 7 of the Fair Work (Registered Organisations) Act 2009 of the Commonwealth in connection with the election of officers of organisations registered under that Act. The regulations may adopt the provisions of that Chapter, with or without modification.
250 Offences in relation to elections
(1) A person must not, without lawful authority or excuse, in relation to an election for an office in a State organisation:(a) personate another person to secure a ballot-paper to which the personator is not entitled, or personate another person for the purpose of voting, or(b) destroy, deface, alter, take or otherwise interfere with a nomination paper, ballot-paper or envelope, or(c) put or deliver a ballot-paper or other paper:(i) into a ballot-box or other ballot receptacle, or(ii) into the post, or(d) deliver a ballot-paper or other paper to a person receiving ballot-papers for the purposes of the election or ballot, or(e) record a vote that the person is not entitled to record, or(f) record more than one vote, or(g) forge a nomination paper, ballot-paper or envelope, or utter a nomination paper, ballot-paper or envelope that the person knows to be forged, or(h) provide a ballot-paper, or(i) obtain, or have possession, of a ballot-paper, or(j) destroy, take, open or otherwise interfere with a ballot-box or other ballot receptacle.(2) A person must not, without lawful authority or excuse, in relation to an election for an office in a State organisation threaten, offer or suggest, or use, cause, inflict or procure, any violence, injury, punishment, damage, loss or disadvantage because of, or to induce:(a) any candidature or withdrawal of candidature, or(b) any vote or omission to vote, or(c) any support or opposition to any candidate, or(d) any promise of any vote, omission, support or opposition.(3) A person (in this subsection called the relevant person) must not, without lawful authority or excuse, in relation to an election for an office in a State organisation:(a) request, require or induce another person to show a ballot-paper to the relevant person, or permit the relevant person to see a ballot-paper, in such a manner that the relevant person can see the vote, while the ballot-paper is being marked or after it has been marked, or(b) if the relevant person is a person performing duties for the purposes of the ballot, show to another person, or permit another person to have access to, a ballot-paper used in the ballot, otherwise than in the performance of those duties.Maximum penalty: 100 penalty units.
(1) The expenses of an election conducted by officers or employees of the State must be borne by the organisation concerned, including:(a) the salary or other remuneration of any officer or employee of the State performing any duty in relation to the election, including any person appointed solely for the purposes of the election, and(b) the cost of travel of such an officer or employee, including any travelling or similar allowance, incurred in connection with the performance of any such duty, and(c) expenses in connection with the provision or use of premises provided by the State for the purposes of the election, including premises obtained solely for such purposes.(2) If the expenses of an election are not duly paid in accordance with this section and the regulations, the persons to whom they are payable may recover them as a debt in a court of competent jurisdiction.
252 Application for inquiry concerning irregularity in election
(1) A person who is, or within the preceding period of 12 months has been, a member of a State organisation and who claims that there has been an irregularity in relation to an election for an office in the organisation may make an application for an inquiry by the Commission into the matter.(2) An irregularity in relation to an election for an office includes a breach of the rules of a State organisation and any act, omission or other thing that prevents or hinders or attempts to prevent or hinder:(a) the full and free recording of votes by all persons entitled to record votes and by no other persons, or(b) a correct ascertainment or declaration of the results of the voting,or otherwise adversely and unfairly affects the result of the election.(3) An application under this section must:(a) be in a form approved by the Industrial Registrar, and(b) be lodged with the Industrial Registrar before the completion of the election or within 6 months after the completion of the election, and(c) specify the alleged irregularity and the facts relied on to support the allegation (verified by a statutory declaration of the applicant).
253 Action by Industrial Registrar
(1) On lodgment of an application for an inquiry, the Industrial Registrar must:(a) if the Industrial Registrar is satisfied:(i) that there are reasonable grounds for an inquiry into the question of whether there has been an irregularity in relation to the election that may have affected or may affect the result of the election, and(ii) that the circumstances of the matter justify an inquiry by the Commission,grant the application and refer the matter to the Commission, or(b) if the Industrial Registrar is not so satisfied, refuse the application and inform the applicant accordingly.(2) The Industrial Registrar may exercise his or her powers under this section on the basis of the matters stated in the application but the Industrial Registrar may also take into account any relevant information coming to his or her knowledge.(3) Any act or decision of the Industrial Registrar under this section is not subject to appeal to the Commission.
On receipt of a reference for an inquiry from the Industrial Registrar, the Commission must as soon as practicable proceed to inquire into the alleged irregularity.
(1) At any time after an inquiry in relation to an election has been instituted, the Commission may make one or more of the following orders:(a) an order that no further steps are to be taken in the conduct of the election or in carrying into effect the result of the election,(b) an order that a person who has assumed an office, has continued to act in an office, or claims to occupy an office, to which the inquiry relates, must not act in that office,(c) an order that a person who holds, or last held before the election, an office to which the inquiry relates may act or continue to act in that office,(d) if the Commission considers that an order under paragraph (c) would not be practicable, would be prejudicial to the efficient conduct of the affairs of the organisation or would be inappropriate having regard to the nature of the inquiry, an order that a member of the organisation or another person specified in the order may act in an office to which the inquiry relates,(e) an order for the recounting of votes,(f) an order incidental or supplementary to an order under this subsection.(2) If the Commission orders that a person may act, or continue to act, in an office, the person must, while the order remains in force, and despite anything contained in the rules of the organisation, be taken, for all purposes, to hold the office.(3) An order under this section is to continue in force, unless expressed to operate for a shorter period or unless sooner discharged, until the completion of proceedings before the Commission in relation to the election and of all matters ordered (otherwise than under this section) by the Commission in those proceedings.
(1) The Commission is to allow to appear or be represented at an inquiry all persons who apply to the Commission for leave to appear or be represented, being persons who appear to the Commission to be justly entitled to be heard. The Commission may order any other person to appear or be represented.(2) For the purposes of an inquiry the Commission is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it considers just.
257 Functions and powers of Commission at inquiry
(1) At an inquiry, the Commission is to inquire into and determine the question of whether an irregularity has occurred in relation to the election and such further questions concerning the conduct and results of the election as the Commission thinks necessary.(2) In the course of conducting an inquiry, the Commission may make such orders (including an order for the recounting of votes) as the Commission considers necessary.(3) If the Commission finds that an irregularity has occurred, the Commission may make one or more of the following orders:(a) an order declaring the election, or any step taken in relation to the election, to be void,(b) an order declaring a person purporting to have been elected not to have been elected, and declaring another person to have been elected,(c) an order directing the Industrial Registrar to make arrangements:(i) in the case of an uncompleted election—for a step in relation to the election (including the calling for nominations) to be taken again and for the uncompleted steps in the election to be taken, or(ii) in the case of a completed election—for a step in relation to the election (including the calling for nominations) to be taken again or a new election to be held,(d) an order directing, despite anything contained in the rules of the organisation, the taking of such safeguards as the Commission considers necessary against irregularities in relation to:(i) any such new election, or(ii) any such step so ordered to be taken again, or(iii) any uncompleted steps in the election,and, for the purposes of any such order, an order appointing and authorising a person to act as a returning officer either alone or in conjunction with the returning officer acting under the rules of the organisation in relation to the election, and to exercise such powers as the Commission directs,(e) an order (including an order modifying the operation of the rules of the organisation to the extent necessary to enable a new election to be held, a step in relation to an election to be taken again or an uncompleted step in an election to be taken) incidental or supplementary to, or consequential on, any other order under this section.(4) The Commission is not to declare an election, or any step taken in relation to an election, to be void, or declare that a person was not elected, unless the Commission is of the opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have occurred or may occur, the result of the election may have been affected, or may be affected, by irregularities.
258 Validity of certain acts where election declared void
(1) If the Commission declares void the election of a person who has, since the election, purported to act in the office to which the person purports to have been elected, or declares such a person not to have been elected:(a) subject to a declaration under paragraph (b), all acts done by or in relation to the person that could validly have been done by or in relation to the person if the person had been duly elected are valid, and(b) the Commission may declare an act referred to in paragraph (a) to have been void, and, if the Commission does so, the act is taken not to have been valid.(2) If an election is held, or a step in relation to an election is taken, under an order of the Commission, the election or step is not invalid merely because of a departure from the rules of the organisation concerned that was required by the order of the Commission.
259 Costs in relation to inquiries
(1) The Commission may make such order as to the costs (including expenses of witnesses) of proceedings before the Commission in relation to an inquiry under this Division as the Commission considers just, and the Commission may assess the amount of such costs.(2) If, on any such inquiry, the Commission finds that an irregularity has occurred, the Minister may, if the Minister considers the circumstances justify so doing, authorise the grant by the State to the person who applied for the inquiry of financial assistance in relation to the whole or a part of the costs (including expenses of witnesses) that the applicant has paid, has become liable to pay or may become liable to pay in relation to the inquiry.(3) If, on any such inquiry, the Commission does not find that any irregularity has occurred, but certifies that the person who applied for the inquiry acted reasonably in so applying, the Minister may authorise the grant by the State to that person of financial assistance in relation to the whole or a part of the costs of the applicant as specified in subsection (2).(4) If the Minister is satisfied that, having regard to the findings of the Commission on any such inquiry, it is not just that a person (not being the person who applied for the inquiry) should be required to bear, or to bear in full, any costs that the person has paid, has become liable to pay or may become liable to pay in relation to the inquiry (including expenses of witnesses), the Minister may authorise the grant by the State to that person of financial assistance in relation to the whole or a part of those costs.(5) If the Commission orders:(a) a new election to be held, or(b) any step in relation to an election to be taken again, or(c) any other step (including modification of the rules of the organisation) incidental or supplementary to, or consequential on, any other order made in the inquiry, to be taken,the Minister may, if the Minister is satisfied that the nature of the irregularity found by the Commission to have occurred is such that it would be unreasonable for the organisation to be required to bear, or to bear in full, the expenses involved in compliance with the order of the Commission, authorise payment by the State of the whole or a part of those expenses.
260 Entitlement to membership of State organisations
(1) An employee who is eligible to become a member of a State organisation of employees under the rules of the organisation that relate to the relevant industry in which members are to be employed is entitled:(a) to be admitted as a member of the organisation, and(b) to remain a member so long as the employee complies with the rules of the organisation and remains eligible to be a member under those rules.(2) An employer who is eligible to become a member of a State organisation of employers is entitled:(a) to be admitted as a member of the organisation, and(b) to remain a member so long as the employer complies with the rules of the organisation and remains eligible to be a member under those rules.(3) An entitlement under this section is subject to the payment of any amount properly payable in relation to membership.(4) A person who is qualified to be employed in a relevant industry is, for the purposes of this section, taken to be an employee in that industry if the person seeks to be employed in that industry, whether or not the person has ever been so employed.(5) In this section, relevant industry includes a relevant occupation or other relevant part of an industry.
261 Request by member for statement of membership
A member of a State organisation is entitled to be given, within 28 days after a request to the organisation, a statement showing:(a) that the person is a member of the organisation, and(b) if there are categories of membership of the organisation—the category of the person’s membership, and(c) if the person expressly requests—whether the person is a financial member of the organisation.
262 Request by member for copy of rules
A member of a State organisation is entitled to be given, within 14 days after a request to the organisation and payment or tender of such fee (if any) fixed by its rules, a copy of the current rules of the organisation.
263 Copies of report and audited accounts to be provided to members and presented to meetings
(1) A State organisation must provide free of charge to its members:(a) a copy of the report of the auditor in relation to the inspection and audit of the accounting records kept by the organisation in relation to a financial year, and(b) a copy of the accounts and other statements to which the report relates.(2) If, under the rules of the organisation, the committee of management of the organisation resolves to provide to the members of the organisation a summary of the report, accounts and statements, the organisation may comply with subsection (1) by providing free of charge to its members a copy of the summary if:(a) the organisation lodges a copy of the summary with the Industrial Registrar, and(b) the auditor certifies that the summary is, in the auditor’s opinion, a fair and accurate summary of the report, accounts and statements, and(c) the summary contains a statement to the effect that the organisation will provide a copy of the report, accounts and statements free of charge to any member who requests it, and(d) where particulars of a deficiency, failure or shortcoming in relation to a matter are set out in the report—the summary contains the particulars.(3) The copies referred to in subsection (1), or the summary referred to in subsection (2), must be provided within 56 days after the making by the organisation of the report concerned.(4) A State organisation that publishes a journal of the organisation that is available to the members of the organisation free of charge, may comply with subsection (1):(a) by publishing in the journal the report, accounts and other statements referred to in that subsection, or(b) by preparing a summary as described in subsection (2), complying with the requirements of that subsection in relation to the summary and publishing the summary in the journal,and by posting a copy of the journal to each member of the organisation.(5) In addition to other rights conferred on a member of a State organisation by this Division, a member is entitled to inspect the accounting records of the organisation at its registered office during business hours.(6) A State organisation must not fail to comply with this section.Maximum penalty: 50 penalty units.
264 Resignation from membership
(1) A member of a State organisation may resign from membership by written notice delivered or sent to the registered address of the organisation.(2) A notice of resignation from membership of a State organisation takes effect:(a) if the member ceases to be eligible to become a member of the organisation:(i) on the day on which the notice is so delivered or otherwise received by the organisation, or(ii) on the day specified in the notice, that is a day not earlier than the day when the member ceases to be eligible to become a member,whichever is later, or(b) in any other case:(i) at the end of 6 months, or such shorter period as is specified in the rules of the organisation, after the notice is so delivered or otherwise received by the organisation, or(ii) on the day specified in the notice,whichever is later.(3) Any dues payable but not paid by a former member of a State organisation in relation to a period, not exceeding 6 months, before the member’s resignation from the organisation took effect may be sued for and recovered in the name of the organisation, in a court of competent jurisdiction, as a debt due to the organisation.
(1) A member of a State organisation may, by written notice delivered at or sent to the registered office of the organisation, nominate any person to whom money due to the member by the organisation is to be paid at the member’s death.(2) The notice must not nominate an officer or employee of the organisation unless the officer or employee is a member of the family of the nominator.(3) A member of a State organisation may from time to time revoke or vary a nomination under subsection (1) by written notice delivered at or sent to the registered office of the organisation.(4) The organisation, on receiving satisfactory proof of the death of the nominator, must pay to the nominee the amount due to the deceased member.
(1) The Commission may, by order, enforce the provisions of this Division on the application of a member, former member or prospective member of an industrial organisation affected by a contravention of this Division.(2) The Commission may, in particular, for that purpose do any one or more of the following:(a) order the admission to membership of an applicant for membership of an industrial organisation (whether from the date of the order or an earlier date),(b) declare that a member of an industrial organisation ceased to be a member on a particular date,(c) order an industrial organisation to correct its register of members,(d) order an industrial organisation (or its officials or employees) to take any particular action or to cease any particular activity,(e) make consequential orders.
Division 5 Duties and liabilities of officers
267 Acting dishonestly to deceive or defraud
An officer of a State organisation must not, with intent to deceive or defraud the organisation or the members of the organisation or for any other fraudulent purpose, act dishonestly in the exercise of any of the powers or the discharge of any of the duties of his or her office.Maximum penalty: 100 penalty units.
268 Use of position for profit
An officer of a State organisation must not make improper use of the officer’s position as such an officer to gain, directly or indirectly, an advantage for the officer or for any other person or to cause detriment, loss or damage to the organisation.Maximum penalty: 100 penalty units.
269 Officer to disclose interest
(1) An officer of a State organisation who:(a) has an interest, whether directly or indirectly, in a contract or proposed contract with the organisation, or(b) has an interest, whether directly or indirectly, in any property, or(c) holds any other office,that may conflict with his or her duties or interests as an officer of the organisation must, as soon as practicable after the relevant facts have come to his or her knowledge, declare the nature of the interest or office at a meeting of the governing body of the organisation.Maximum penalty: 50 penalty units.
(2) The secretary of a State organisation must record every declaration under this section in the minutes of the meeting at which it was made.
270 Compensation to State organisation
(1) If the Commission convicts a person of an offence under this Division, the Commission may, if satisfied that a State organisation has suffered loss or damage as a result of the act or omission that constituted the offence, in addition to imposing a penalty, order the convicted person to pay compensation to the organisation in the amount that the Commission specifies.(2) If an officer of a State organisation contravenes a provision of this Division in relation to an organisation, the organisation may, whether or not the person has been convicted of an offence under this Division in relation to that contravention, recover from the officer as a debt due to the organisation by action in the Commission:(a) if that officer, or any other person made a profit as a result of the contravention or failure—an amount equal to that profit, and(b) if the organisation has suffered loss or damage as a result of the contravention or failure—an amount equal to that loss or damage.(3) In determining the amount of compensation to award under this section, the Commission must have regard to any amount that has been paid to the organisation or that the organisation is entitled to be paid by way of damages awarded in civil proceedings.
(1) This Division has effect in addition to, and not in derogation of, any rule of law relating to the duty or liability of an officer of a State organisation and does not prevent the institution of any civil proceedings in respect of a breach of such a duty or in respect of such a liability.(2) In this Division, officer of a State organisation, includes any person, by whatever name called and whether or not he or she holds an office in the organisation, who is concerned, or takes part, in the management of the organisation.
Division 6 Disqualification from office
(1) In this Division, serious offence means:(a) an offence under a law of the Commonwealth, a State or Territory, or of another country, involving fraud or dishonesty and punishable on conviction by imprisonment for a period of 3 months or more, or(b) an offence against section 250 or any of the provisions of Division 5, or(c) any other offence in relation to the formation, registration or management of an organisation registered under this Chapter, or(d) any other offence under a law of the Commonwealth, a State or Territory, or of another country, involving the intentional use of violence towards another person, the intentional causing of death or injury to another person or the intentional damaging or destruction of property.(2) A reference in this Division to a person having been convicted of a serious offence includes a reference to a person having been so convicted before the commencement of this section.(3) A reference in this Division to a person being convicted of a serious offence does not include a reference to a person being convicted, otherwise than on indictment, of an offence referred to in subsection (1) (c).(4) A reference in this Division to a person being convicted of a serious offence does not include a reference to a person being convicted of an offence referred to in subsection (1) (d) unless the person has served, or is serving, a term of imprisonment in relation to the offence.(5) A certificate purporting to be signed by the Industrial Registrar or other proper officer of a federal court, a court of a State or Territory, or a court of another country, stating that a person was convicted by the court of a specified offence on a specified day is, for the purpose of an application made under this Division, evidence that the person was convicted of the offence on that day.(6) A certificate purporting to be signed by the Industrial Registrar or other proper officer of a federal court, a court of a State or Territory, or a court of another country, stating that a person was acquitted by the court of a specified offence, or that a specified charge against the person was dismissed by the court, is, for the purpose of an application made under this Division, evidence of the facts stated in the certificate.(7) A certificate purporting to be signed by the officer in charge of a prison stating that a person was released from the prison on a specified day is, for the purpose of an application made under this Division, evidence that the person was released from the prison on that day.
273 Certain persons disqualified from holding office in State organisations
(1) A person who has been convicted of a serious offence is not eligible to be a candidate for an election, or to be elected or appointed, to an office in a State organisation unless:(a) on an application made under section 274 (Application for leave to hold office in organisations by prospective candidate for office) or 275 (Application for leave to hold office in organisations by office holder) (in this section called the specified sections) in relation to the conviction of the person for the serious offence:(i) the person was granted leave to hold office in organisations, or(ii) the person was refused leave to hold office in organisations but, under section 274 (2) (b) or 275 (2) (b), the Commission specified a period for the purposes of this subsection, and the period has elapsed since the person was convicted of the serious offence or, if the person served a term of imprisonment in relation to the serious offence, since the person was released from prison, or(b) in any other case—a period of 5 years has elapsed since the person was convicted of the serious offence or, if the person served a term of imprisonment in relation to the serious offence, since the person was released from prison.(2) If a person who holds an office in a State organisation is convicted of a serious offence, the person ceases to hold the office at the end of the period of 28 days after the conviction unless, within the period, the person makes an application to the Commission under either of the specified sections.(3) Where a person who holds an office in a State organisation makes an application to the Commission under either of the specified sections and the application is not determined:(a) except in a case to which paragraph (b) applies—within the period of 3 months after the date of the application, or(b) if the Commission, on application by the person, has extended that period—within that period as extended,the person ceases to hold the office at the end of the period of 3 months or the period as extended, as the case may be.(4) The Commission must not, under subsection (3) (b), extend a period for the purposes of subsection (3) unless:(a) the application for the extension is made before the end of the period of 3 months referred to in subsection (3) (a), or(b) if the Commission has previously extended the period under subsection (3) (b)—the application for the further extension is made before the end of that period as extended.(5) A State organisation, a member of a State organisation or the Industrial Registrar may apply to the Commission for a declaration that, because of the operation of this section or either of the specified sections:(a) a person is not, or was not, eligible to be a candidate for election, or to be elected or appointed, to an office in the organisation, or(b) a person has ceased to hold an office in the organisation.(6) The granting to a person, on an application made under either of the specified sections in relation to a conviction of the person for a serious offence, of leave to hold offices in organisations does not affect the operation of this section or either of the specified sections in relation to another conviction of the person for a serious offence.
274 Application for leave to hold office in organisations by prospective candidate for office
(1) A person who:(a) wants to be a candidate for election to an office in a State organisation, and(b) has been, within the immediately preceding period of 5 years, convicted of a serious offence or released from prison after serving a term of imprisonment in relation to a conviction for a serious offence,may, subject to subsection (4), apply to the Commission for leave to hold office in organisations.(2) If a person makes an application under this section, the Commission may:(a) grant the person leave to hold office in organisations, or(b) refuse the person leave to hold office in organisations and specify, for the purposes of section 273 (1), a period of less than 5 years, or(c) refuse a person leave to hold office in organisations.(3) A person who:(a) holds an office in a State organisation, and(b) is convicted of a serious offence, and(c) on an application made under this section in relation to the conviction for the serious offence, is, under subsection (2), refused leave to hold office in organisations,ceases to hold the office in the organisation.(4) A person is not entitled to make an application under this section in relation to the person’s conviction for a serious offence if the person has previously made an application under this section or under section 275 in relation to the conviction.
275 Application for leave to hold office in organisations by office holder
(1) If a person who holds an office in a State organisation is convicted of a serious offence, the person may, within 28 days after the conviction, apply to the Commission for leave to hold office in organisations.(2) If a person makes an application under this section, the Commission may:(a) grant the person leave to hold office in organisations, or(b) refuse the person leave to hold office in organisations and specify, for the purposes of section 273 (1), a period of less than 5 years, or(c) refuse the person leave to hold office in organisations.(3) A person who, on an application made under this section, is, under subsection (2), refused leave to hold office in organisations ceases to hold the office concerned.(4) A person is not entitled to make an application under this section in relation to the person’s conviction for a serious offence if the person has previously made an application under this section or section 274 in relation to the conviction.
276 Commission to have regard to certain matters
For the purposes of exercising the power under this Division to grant or refuse leave to a person who has been convicted of a serious offence to hold office in organisations, the Commission must have regard to:(a) the nature of the serious offence, and(b) the circumstances of, and the nature of the person’s involvement in, the commission of the serious offence, and(c) the general character of the person, and(d) the fitness of the person to be involved in the management of organisations, having regard to the conviction for the serious offence, and(e) any other matter that, in the opinion of the Commission, is relevant.
(1) The Commission may, despite anything in the rules of any organisation concerned, make such order to give effect to a declaration referred to in section 273 (5) as it considers appropriate.(2) Where an application is made to the Commission under section 273 (5):(a) the person whose eligibility, or whose holding of office, is in question must be given an opportunity to be heard by the Commission, and(b) if the application is made otherwise than by the organisation concerned—the organisation must be given an opportunity to be heard by the Commission.(3) If an application is made to the Commission under section 274 or 275, the organisation concerned must be given an opportunity to be heard by the Commission.
278 Records to be kept and lodged by organisations
(1) A State organisation must keep the following records:(a) a register of its members, showing the name, postal address of each member and such other particulars as may be prescribed by the regulations,(b) a list of the offices in the organisation,(c) a list of the names, postal addresses and occupations of the persons holding the offices,(d) such other records as are prescribed by the regulations.(2) A State organisation must:(a) enter in the register the name and postal address of each person who becomes a member, within 28 days after the person becomes a member, and(b) remove from the register the name and postal address of each person who ceases to be a member, within 28 days after the person ceases to be a member, and(c) enter in the register any change in the particulars shown on the register, within 28 days after the matters necessitating the change become known to the organisation.(3) A State organisation must lodge with the Industrial Registrar once in each year, at such time as is prescribed by the regulations:(a) a statutory declaration by the secretary of the organisation certifying that the register of members has, during the immediately preceding calendar year, been kept and maintained as required by subsections (1) and (2), and(b) a copy of the records required to be kept under subsection (1) (b), (c) and (d), certified by statutory declaration by the secretary of the organisation to be a correct statement of the information contained in those records.(4) A State organisation must, within 28 days, lodge with the Industrial Registrar notification of any change made to the records required to be kept under subsection (1) (b), (c) and (d), certified by statutory declaration by the secretary of the organisation to be a correct statement of the changes made.(5) The records kept by a State organisation under this section must be kept at the registered office of the organisation or other place approved by the Industrial Registrar.(6) A person authorised by the Industrial Registrar may inspect, and make copies of, or take extracts from, the register of members of a State organisation, or a part of the register, at such times as the Industrial Registrar specifies.(7) A State organisation must cause its register of members, or each part of the register, to be available, at all relevant times, for the purposes of subsection (6), at the office where the register is kept, to a person authorised by the Industrial Registrar under that subsection.(8) If:(a) a member of a State organisation requests the Industrial Registrar to give a direction under this subsection, and(b) the Industrial Registrar is satisfied:the Industrial Registrar may direct the organisation to deliver to the Industrial Registrar, before a specified day, a copy of the register certified by statutory declaration by the secretary or other specified officer of the organisation to be, as at a day specified in the certificate that is not more than 28 days before the first-mentioned day, a correct statement of the information contained in the register, for the member to inspect at the office of the Industrial Registrar.(i) that the member has been refused access to the register of members, or a part of the register of members, of the organisation at the office where the register is kept, or(ii) that there are other grounds for giving a direction under this subsection,(9) If default is made in complying with a provision of this section, the organisation is guilty of an offence.Maximum penalty (subsection (9)): 100 penalty units.
279 Directions by Industrial Registrar concerning maintenance of register of members
(1) The Industrial Registrar may give directions to a State organisation in relation to the maintenance of the register of its members if the Industrial Registrar is not satisfied that the organisation is maintaining the register in accordance with this Division.(2) Without affecting the generality of subsection (1), the Industrial Registrar may direct a State organisation to make:(a) such rectifications of the register, or(b) such changes in the form of or manner in which the register is being maintained,as are necessary to ensure that the register provides, for the purpose of the conduct of a ballot or election under this Act, in a convenient form, accurate and current particulars of the membership of the organisation.(3) A State organisation that fails to comply with a direction given by the Industrial Registrar under this section is guilty of an offence.Maximum penalty (subsection (3)): 100 penalty units.
280 Organisations to notify particulars of loans, grants and donations
(1) A State organisation must, as soon as practicable after the end of each financial year, lodge with the Industrial Registrar a statement showing the relevant particulars in relation to each loan, grant or donation of an amount exceeding $1,000.(2) The statement must be signed by an officer of the organisation.(3) The statement may be inspected at the office of the Industrial Registrar, during office hours, by a member of the organisation concerned.(4) The relevant particulars, in relation to a loan made by a State organisation, are:(a) the amount of the loan, and(b) the purpose for which the loan was required, and(c) the security given in relation to the loan, and(d) the name and address of the person to whom the loan was made and the arrangements made for the repayment of the loan.(5) The relevant particulars, in relation to a grant or donation made by a State organisation, are:(a) the amount of the grant or donation, and(b) the purpose for which the grant or donation was made, and(c) the name and address of the person to whom the grant or donation was made.(6) If default is made in complying with a provision of this section, the organisation is guilty of an offence.Maximum penalty (subsection (6)): 100 penalty units.
281 Waiver of requirement to keep records
The Industrial Registrar may, on application by a State organisation, exempt the organisation from any requirement under this Division that the organisation must keep a specific register, record or other document or lodge it with the Industrial Registrar if the Industrial Registrar is satisfied that the organisation is required to keep or lodge a register, record or document in compliance with a similar requirement of the Fair Work (Registered Organisations) Act 2009 of the Commonwealth.
(1) The Regulations may make provision for or with respect to the accounts and audit of industrial organisations.(2) Any such regulations may deal with any of the matters dealt with in Chapter 8 of the Fair Work (Registered Organisations) Act 2009 of the Commonwealth in connection with the accounts and audit of organisations registered under that Act. The regulations may adopt the provisions of that Chapter, with or without modification.(3) Until any such regulations are made, the provisions of Subdivision 2 of Division 8 of Part 3 of Chapter 5 of the Industrial Relations Act 1991 (and the regulations under those provisions) apply to a State organisation as regulations made under this Division.
(1) The Regulations may make provision for or with respect to the amalgamation of State organisations.(2) Any such regulations may deal with any of the matters dealt with in Chapter 3 of the Fair Work (Registered Organisations) Act 2009 of the Commonwealth in connection with the amalgamation of organisations registered under that Act. The regulations may adopt the provisions of that Chapter, with or without modification.(3) Until any such regulations are made, the provisions of Division 9 of Part 3 of Chapter 5 of the Industrial Relations Act 1991 (and the regulations under those provisions) apply to a State organisation as regulations made under this Division.
Division 10 Validating provisions
In this Division:collective body means, in relation to an organisation, the committee of management or a conference, council, committee, panel or other body of or within the organisation.
invalidity includes nullity and, without limiting the generality of the foregoing, includes any invalidity resulting from an omission, defect, error, irregularity or absence of a quorum or caused by the fact that:
(a) a member, or each of 2 or more of the members, of a collective body of an organisation, or one of the persons, or each of 2 or more of the persons, purporting to act as the members of such a collective body, or a person, or each of 2 or more persons, holding or purporting to hold an office or position in an organisation:(i) has not been elected or appointed or duly elected or appointed, or(ii) has purported to be elected or appointed by an election or appointment that was a nullity, or(iii) was not entitled to be elected or appointed or to hold office, or(iv) was not a member of the organisation, or(v) was elected or appointed or purported to be elected or appointed, in a case where one or more of the persons who took part in the election or appointment or the purported election or appointment was or were not entitled to do so or was or were not members of the organisation, or(b) persons who were not entitled to do so, or were not members of the organisation, took part in the making or purported making or the alteration or purported alteration of the rules of an organisation, as officers or voters or otherwise.
285 Validation of certain acts done in good faith
(1) Subject to this section and section 287, all acts done in good faith by a collective body of an organisation, or by persons purporting to act as such a collective body, are valid despite any invalidity that may later be discovered in:(a) the election or appointment of the collective body, any member of the collective body or the persons or any of the persons purporting to act as the collective body, or(b) the making, alteration or rescission of a rule of the organisation.(2) Subject to this section and section 287, all acts done in good faith by a person holding or purporting to hold an office or position in an organisation are valid despite any invalidity that may later be discovered in:(a) the election or appointment of the person, or(b) the making, alteration or rescission of a rule of the organisation.(3) For the purposes of this section, a person is not to be treated as purporting to act as a member of a collective body of an organisation or as the holder of an office or position in an organisation unless the person has, in good faith, purported to be, and has been treated by officers or members of the organisation as being, such a member or the holder of the office or position.(4) For the purposes of this section:(a) an act is to be treated as done in good faith until the contrary is proved, and(b) a person who has purported to be a member of a collective body of an organisation is to be treated as having done so in good faith until the contrary is proved, and(c) knowledge of facts from which an invalidity arises is not of itself to be treated as knowledge that the invalidity exists, and(d) an invalidity in any election or appointment or in the making or alteration of a rule to which this section applies is not to be treated as discovered before the earliest time proved to be a time when the existence of the invalidity was known to a majority of the members of the committee of management of the organisation or to a majority of the persons purporting to act as that committee of management.(5) This section applies:(a) to an act whenever done (including an act done before the commencement of this section), and(b) to an act done in relation to an association before it became an organisation.(6) Nothing in this section validates the expulsion or suspension of, or the imposition of a fine or any other penalty on, a member of an organisation that would not have been valid if this section had not been enacted.(7) Nothing in this section affects the operation of the provisions of this Part relating to inquiries into elections.
286 Validation of certain acts after 4 years
(1) Subject to this section and section 287, after the end of 4 years from:(a) the doing of an act:(i) by, or by persons purporting to act as, a collective body of an organisation and purporting to exercise power conferred by or under the rules of the organisation, or(ii) by a person holding or purporting to hold an office or position in an organisation and purporting to exercise power conferred by or under the rules of the organisation, or(b) the election or purported election, or the appointment or purported appointment, of a person, to an office or position in an organisation, or(c) the making or purported making, or the alteration or purported alteration, of a rule of an organisation,the act, election, purported election, appointment or purported appointment, or the making or purported making or alteration or purported alteration of the rule, is to be taken to have been done in compliance with the rules of the organisation.(2) The operation of this section does not affect:(a) any proceedings pending under this Act, or(b) the validity or operation of an order, judgment, decree, declaration, direction, verdict, sentence, decision or similar judicial act of the Commission or any other court,made before the end of the 4 years referred to in subsection (1).(3) This section extends to an act, election, purported election, appointment or purported appointment, and to the making or purported making or alteration or purported alteration of a rule:(a) done or occurring before the commencement of this section, or(b) done or occurring in relation to an association before it became an organisation.
287 Order affecting application of section 285 or 286
(1) If, on an application for an order under this section, the Commission is satisfied that the application of section 285 or 286 in relation to an act would do substantial injustice, having regard to the interests of:(a) the organisation, or(b) members or creditors of the organisation, or(c) persons having dealings with the organisation,the Commission must, by order, declare accordingly.(2) Where a declaration is made under subsection (1), section 285 or 286, as the case requires, does not apply, and is to be taken never to have applied, in relation to the act specified in the declaration.(3) The Commission may make an order under subsection (1) on the application of the organisation, a member of the organisation or any other person having a sufficient interest in relation to the organisation.(4) The Commission may determine:(a) what notice, summons or rule to show cause is to be given to other persons of the intention to make an application or an order under this section, and(b) whether and how the notice, summons or rule should be given or served and whether it should be advertised in any newspaper.(5) A reference in this section to an act includes a reference to an election, purported election, appointment or purported appointment, and to the making or purported making or alteration or purported alteration of a rule.
288 Commission may make orders in relation to consequences of invalidity
(1) An organisation, a member of an organisation or any other person having a sufficient interest in relation to an organisation may apply to the Commission for the determination of the question whether an invalidity has occurred in:(a) the management or administration of the organisation, or(b) an election or appointment in the organisation, or(c) the making or alteration of the rules of the organisation.(2) On an application under subsection (1), the Commission may make such determination as it considers appropriate.(3) If, in a proceeding under subsection (1), the Commission determines that an invalidity of a kind referred to in that subsection has occurred, the Commission may make such order as it considers appropriate:(a) to rectify the invalidity or cause it to be rectified, or(b) to negative, modify or cause to be modified the consequences in law of the invalidity, or(c) to validate any act, matter or thing rendered invalid by or because of the invalidity.(4) Where an order is made under subsection (3), the Commission may give such ancillary or consequential directions as it considers appropriate.(5) The Commission must not make an order under subsection (3) without satisfying itself that such an order would not do substantial injustice to:(a) the organisation, or(b) any member or creditor of the organisation, or(c) any person having dealings with the organisation.(6) The Commission may determine:(a) what notice, summons or rule to show cause is to be given to other persons of the intention to make an application or an order under this section, and(b) whether and how the notice, summons or rule should be given or served and whether it should be advertised in any newspaper.(7) This section applies:(a) to an invalidity whenever occurring (including an invalidity occurring before the commencement of this section), and(b) to an invalidity occurring in relation to an association before it became an organisation.
289 Application for membership of organisation by person treated as having been a member
(1) If:(a) a person who is eligible for membership of an organisation (other than a member of the organisation or a person who has been expelled from the organisation) applies to be admitted as a member of the organisation, and(b) the person has, up to a time within one month before the application, acted in good faith as, and been treated by the organisation as, a member,the person is entitled to be admitted to membership and treated by the organisation and its members as though the person had been a member during the whole of the time when the person acted as, and was treated by the organisation as, a member and during the whole of the time from the person’s application to the person’s admission.(2) If a question arises as to the entitlement under this section of a person to be admitted as a member and to be treated as though the person had been a member during the times referred to in subsection (1):(a) the person, or(b) a person who is or desires to become the employer of the person, or(c) the organisation,may apply to the Commission to determine the entitlement of the person under this section.(3) Subject to subsection (5), the Commission may, despite anything in the rules of the organisation concerned, make such orders (including mandatory injunctions) to give effect to its determination as it considers appropriate.(4) The orders that the Commission may make under subsection (3) include an order requiring the organisation concerned to treat a person to whom subsection (1) applies as being a member of the organisation and as having been a member during the times referred to in subsection (1).(5) Where an application is made to the Commission under this section:(a) if the application is made otherwise than by the person whose entitlement is in question—the person must be given an opportunity to be heard by the Commission, and(b) if the application is made otherwise than by the organisation concerned—the organisation must be given an opportunity to be heard by the Commission.(6) A reference in this section to a person having acted as, or been treated by the organisation as, a member of an organisation includes a reference to a person having so acted or been so treated during a period before the commencement of this section.
290 No challenge to dual membership with Federal organisation
No proceedings may be taken to challenge:(a) the existence of an organisation, or(b) the registration of an organisation, or(c) the election of officers of an organisation, or(d) any decision made by an organisation,only because members of the organisation are also members of an organisation registered under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth.
(1) In this section:amalgamation means the amalgamation of any State organisations under this Part or the amalgamation of any organisations (including recognised organisations) under Chapter 5 of the Industrial Relations Act 1991, including:
(a) the registration of the amalgamated organisation under this Chapter or under Chapter 5 of that Act, and(b) the cancellation of the registration under this Chapter, or under Chapter 5 of that Act, of the organisations that are amalgamated.relevant date means:
(a) in the case of the amalgamation of any State organisations under this Part—the date that is 6 months after the registration under this Chapter of the amalgamated organisation, or(b) in the case of the amalgamation of organisations (including recognised organisations) under Chapter 5 of the Industrial Relations Act 1991—the date on which this section commences.(2) On the relevant date:(a) an amalgamation (or purported amalgamation), and(b) anything done (or purporting to have been done) for the purposes of, or in connection with, an amalgamation or on which the validity of an amalgamation depends,are, to the extent of any invalidity, validated and are taken always to have been valid.(3) If:(a) any State organisations are amalgamated under this Act after the commencement of this Act, and(b) proceedings are taken under this Act before the date that is 6 months after the registration under this Chapter of the amalgamated organisation to challenge that amalgamation,the operation of this section is subject to the determination of the Commission in those proceedings.(4) This section applies to any proceedings under this or any other Act or law of any court or tribunal, whether taken before or after the commencement of this section or whether pending on that commencement, and has effect despite any determination in those proceedings.(5) Anything validated by this section may not be reviewed, quashed or called into question by any court or tribunal (including by way of order in the nature of prohibition, certiorari or mandamus, or by injunction or declaration or otherwise).
Part 5 Regulation of industrial organisations (other than State organisations)
291 Regulations applying Part 4
The regulations may apply provisions of Part 4 (Regulation of State industrial organisations) to industrial organisations (other than State organisations) or make provision with respect to those organisations, being provisions that relate to the matters dealt with in that Part.
292 Documents to be lodged with Industrial Registrar
An industrial organisation (other than a State organisation) is required to lodge the following documents with the Industrial Registrar, at the times specified:(a) the rules of the organisation—at the time of registration and immediately after any change to the documents,(b) the annual audited financial statements—at the time of registration and as soon as practicable after the end of each financial year of the organisation.
293 Cancellation of registration or other penalty for contravention of this Part
(1) A contravention of this Part, or the regulations made under this Part, by an industrial organisation constitutes a sufficient ground for the cancellation of its registration under Division 2 of Part 3 or for the imposition of any other penalty under that Division.(2) For that purpose, the Industrial Registrar may exercise the functions of the Commission under Division 2 of Part 3 (but without limiting the power of the Commission to exercise those functions).(3) Action may not be taken against an industrial organisation for a contravention of section 292 unless the organisation has been given at least 1 month’s notice by the Industrial Registrar to rectify the contravention.
294 Determination of demarcation questions concerning interests of industrial organisations of employees
(1) The Commission may, by its order, determine any question as to the demarcation of the industrial interests of industrial organisations of employees (demarcation order).(2) A demarcation order may be made on the Commission’s own initiative or on application by an industrial organisation, an employer or a State peak council.
295 Demarcation orders—coverage of industrial organisations of employees
(1) The demarcation orders that the Commission may make include (but are not limited to) any one or more of the following orders:(a) an order that an industrial organisation of employees is to have the right, to the exclusion of another such organisation or other such organisations, to represent under this Act the industrial interests of a particular class or group of employees who are eligible for membership of the organisation,(b) an order that an industrial organisation of employees that does not have the right to represent under this Act the industrial interests of a particular class or group of employees is to have that right,(c) an order that an industrial organisation of employees is not to have the right to represent under this Act the industrial interests of a particular class or group of employees who are eligible for membership of the organisation.(2) When the Commission makes a demarcation order, the Commission may, after giving each industrial organisation and each State peak council concerned an opportunity to be heard, require the rules of the organisation to be altered in accordance with the demarcation order or a subsequent order of the Commission so as to give effect to the demarcation order.(3) Such a requirement has effect as follows:(a) In the case of a State organisation incorporated under this Act, the rules of the organisation are altered as specified in the order by force of this section.(b) In any other case, the Commission may cancel the registration of the organisation under Part 3 if the organisation does not alter its rules as specified in the order within the time allowed by the order.
Part 7 Entry and inspection by officers of industrial organisations
(1) In this Part:authorised industrial officer means an officer or employee of an industrial organisation of employees who holds an instrument of authority for the purposes of this Part issued by the Industrial Registrar under section 299.
employees’ records includes records of the remuneration of employees, part-time work agreements with the employees or other records relating to the employees that are required to be kept by the employer by or under the industrial relations legislation or an industrial instrument.
officer of an industrial organisation includes any person who is concerned in, or takes part in, the management of the organisation.
relevant employee, when used in connection with the exercise of a power by an authorised officer of an industrial organisation, means an employee who is a member of the organisation or who is eligible to become a member of the organisation.
(2) This Part does not confer authority on an authorised industrial officer to enter any premises for the purposes of holding discussions with employees or of an investigation if:(a) the persons employed at that place are employed by a person who holds a certificate of conscientious objection under section 212 (3) because of membership of a religious society or order (such as the Brethren), and(b) none of the persons employed at those premises are members of an industrial organisation, and(c) there are no more than 20 persons employed at those premises.
297 Right of entry for discussion with employees
An authorised industrial officer may enter, during working hours, any premises where relevant employees are engaged, for the purpose of holding discussions with the employees at the premises in any lunch time or non-working time.
298 Right of entry for investigating breaches
(1) An authorised industrial officer may enter, during working hours, any premises where relevant employees are engaged, for the purpose of investigating any suspected breach of the industrial relations legislation, or of any industrial instrument that applies to any such employees.(2) For the purpose of investigating any such suspected breach, the authorised industrial officer may:(a) require any employer of relevant employees to produce for the officer’s inspection, during the usual office hours at the employer’s premises or at any mutually convenient time and place, any employees’ records and other documents kept by the employer that are related to the suspected breach, and(b) make copies of the entries in any such records or other documents related to any such suspected breach.(3) An authorised industrial officer must, before exercising a power conferred by this section, give the employer concerned:(a) at least 24 hours’ notice, except as provided by paragraph (b), or(b) in respect of any requirement to produce records or other documents that are kept elsewhere than on the employer’s premises—at least 48 hours’ notice.(4) The Commission or the Industrial Registrar may, on the ex parte application of an authorised industrial officer, waive the requirement to give the employer concerned notice of an intended exercise of a power conferred by this section if the Commission or the Industrial Registrar is satisfied that to give such notice would defeat the purpose for which it is intended to be exercised.(5) If the requirement for notice is waived under subsection (4):(a) the Commission or Industrial Registrar is to give the authorised industrial officer a warrant authorising the exercise of the power without notice, and(b) the authorised industrial officer must, after entering the premises and before carrying out any investigation, give the person who is apparently in charge of the premises the warrant or a copy of the warrant.
299 Provisions relating to authorities issued to officers
(1) The Industrial Registrar may, on application, issue an instrument of authority for the purposes of this Part to an officer or employee of an industrial organisation of employees.(2) An authorised industrial officer is required to produce the authority:(a) if requested to do so by the occupier of any premises that the officer enters, or(b) if requested to do so by a person whom the officer requires to produce anything or to answer any question.(3) The authority:(a) remains in force until it expires or is revoked under this section, and(b) expires when the person to whom it was issued ceases to be an officer or employee of the industrial organisation of employees concerned.(4) The Industrial Registrar may, on application, revoke the authority if satisfied that the person to whom it was issued has intentionally hindered or obstructed employers or employees during their working time or has otherwise acted in an improper manner in the exercise of any power conferred on the person by this Part.(5) An application for the revocation of an authority is to set out the grounds on which the application is made.(6) A person to whom an authority has been issued under this section must, within 14 days after the expiry or revocation of the authority, return the authority to the Industrial Registrar for cancellation.Maximum penalty: 20 penalty units.
300 No entry to residential premises without permission
An authorised industrial officer does not have authority under this Part to enter any part of premises used for residential purposes, except with the permission of the occupier.
(1) An authorised industrial officer must not deliberately hinder or obstruct the employer or employees during their working time.(2) A person must not deliberately hinder or obstruct an authorised industrial officer in the exercise of the powers conferred by this Part.(3) A person must not, without lawful excuse, fail to comply with a requirement of an authorised industrial officer under this Part.(4) A person must not purport to exercise the powers of an authorised industrial officer under this Part if the person is not the holder of a current authority issued by the Industrial Registrar under this Part.Maximum penalty: 100 penalty units.
The Commission may deal with an industrial dispute about the operation of this Part, but does not have any jurisdiction to make an award or order conferring additional or inconsistent powers of entry or inspection.
Part 8 Legality of trade unions
A trade union is any temporary or permanent combination (whether or not registered as an industrial organisation under this Act):(a) for regulating the relations between:(i) employees and employers, or(ii) employees and employees, or(iii) employers and employers, or(b) for imposing restrictive conditions on the conduct of any trade or business,whether or not such a combination would, except for this Act, be an unlawful combination because one or more of its purposes is in restraint of trade.
304 Illegality on grounds of restraint of trade excluded
(cf The Trade Union Act 1871 (UK), secs 2–4, Industrial Relations Act 1971 (UK), sec 135)
The purposes of a trade union are not, by reason only that they are in restraint of trade, unlawful, so as:(a) to make any member of the trade union liable to criminal proceedings for conspiracy or otherwise, or(b) to make any agreement or trust void or voidable.
305 Certain agreements not affected
Nothing in this Part affects:(a) any agreement between partners as to their own business, or(b) any agreement between an employer and those employed by the employer as to such employment, or(c) any agreement in consideration of the sale of the goodwill of a business or of instruction in any profession, trade or occupation.