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.
244A Industrial Registrar may determine alterations of rules where breach of demarcation undertaking
(1) If an organisation breaches an undertaking given under section 218 (1A) (b), the Industrial Registrar may, by instrument in writing, determine such alterations of the rules of the organisation as are, in the Industrial Registrar’s opinion, necessary to remove the overlap between the particular classes or groups of employees who are eligible for membership of the organisation and another organisation that gave rise to the undertaking.(2) The Industrial Registrar must give the organisation, and the other organisation, at least 14 days to be heard on the matter before determining the alterations.(3) 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.(3A) The Industrial Registrar must not consent to an alteration of the rules of an industrial organisation of employees to which Schedule 5 applies relating to eligibility for membership of the organisation (being an application for consent made before, or within 12 months after, the date of assent to the Industrial Relations Amendment (Industrial Representation) Act 2012) 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 organisation:(a) to which those persons could more conveniently belong, and(b) that would more effectively represent those persons.(3B) However, subsection (3A) does not apply if the Industrial Registrar accepts an undertaking from the organisation that the Industrial Registrar considers appropriate to avoid disputes as to the demarcation of the industrial interests of the organisation and any other organisation that might otherwise arise from an overlap between eligibility for membership of the organisation and membership of the other organisation.(3C) In determining under subsection (3A) whether an existing organisation would more effectively represent members than the applicant organisation, the Industrial Registrar must have regard to the resources and representative infrastructure of the applicant.(3D) The Industrial Registrar may refuse to consent to an application referred to in subsection (3A) for consent to an alteration of the rules of an industrial organisation of employees if satisfied that the alteration would contravene an agreement or understanding to which the organisation is a party and that deals with the organisation’s right to represent under this Act the industrial interests of a particular class or group of employees.(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, 244A 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.