Industrial Relations Act 1988

No. 86 of 1988

An Act relating to the prevention and settlement of certain industrial disputes, and for other purposes

[Assented to 8 November 1988]

BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:

PART I—PRELIMINARY

Short title

1. This Act may be cited as the Industrial Relations Act 1988.

Commencement

2. This Act commences on a day or days to be fixed by Proclamation.

Objects of Act

3. The objects of this Act are:

(a) to promote industrial harmony and co-operation among the parties involved in industrial relations in Australia;

(b) to provide a framework for the prevention and settlement of industrial disputes by conciliation and arbitration in a manner that minimises the disruptive effects of industrial disputes on the community;

(c) to ensure that, in the prevention and settlement of industrial disputes, proper regard is had to the interests of the parties immediately concerned and to the interests (including the economic interests) of the Australian community as a whole;

(d) to facilitate the prevention and prompt settlement of industrial disputes in a fair manner, and with the minimum of legal form and technicality;

(e) to provide for the observance and enforcement of agreements and awards made for the prevention or settlement of industrial disputes;

(f) to encourage the organisation of representative bodies of employers and employees and their registration under this Act;

(g) to encourage the democratic control of organisations, and the participation by their members in the affairs of organisations; and

(h) to encourage the efficient management of organisations.

Interpretation

4. (1) In this Act, unless the contrary intention appears:

“accounting records”, in relation to an organisation, includes books of account and such working papers and other documents as are necessary to explain the methods and calculations by which the accounts of the organisation are made up;

“arbitration powers” means the powers of the Commission in relation to arbitration;

“auditor”, in relation to an organisation, means:

(a) the person who is the holder of the position of auditor of the organisation under section 275; or

(b) where a firm is the holder of the position—each person who is, from time to time, a member of the firm and is a competent person within the meaning of that section;

“award” means an award or order that has been reduced to writing under subsection 143 (1), and includes a certified agreement;

“bans clause” means a term of an award (however expressed) to the effect that engaging in conduct that would hinder, prevent or discourage:

(a) the observance of the award;

(b) the performance of work in accordance with the award; or

is, to any extent, prohibited;

“boycott” means a contravention of section 45d or 45e of the Trade Practices Act;

“boycott conduct” means conduct that constitutes or would constitute.

(a) a boycott;

(b) attempting to commit a boycott;

(d) inducing, or attempting to induce, a person (whether by threats, promises or otherwise) to commit a boycott;

(e) being in any way, directly or indirectly, knowingly concerned in, or party to, the committing by a person of a boycott; or

(f) conspiring with others to commit a boycott;

“breach” includes non-observance;

“certified agreement” means an agreement certified under section 115;

“collegiate electoral system”, in relation to an election for an office in an organisation, 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;

“Commission” means the Australian Industrial Relations Commission;

“Commissioner” means a Commissioner of the Commission;

“committee of management”, in relation to an organisation, association or branch of an organisation or association, means the group or body of persons (however described) that manages the affairs of the organisation, association or branch;

“Commonwealth authority” means:

(a) a body corporate established for a public purpose by or under a law of the Commonwealth or the Australian Capital Territory; or

(b) a body corporate:

(i) incorporated under a law of the Commonwealth or a State or Territory; and

(ii) in which the Commonwealth has a controlling interest;

other than a prescribed body;

“conciliation powers” means the powers of the Commission in relation to conciliation;

“Court” means the Federal Court of Australia;

“demarcation dispute” means:

(a) a dispute arising between 2 or more organisations, or within an organisation, as to the rights, status or functions of members of the organisations or organisation in relation to the employment of those members; or

(b) a dispute arising between employers and employees, or between members of different organisations, as to the demarcation of functions of employees or classes of employees;

“Deputy President” means a Deputy President of the Commission;

“designated Presidential Member”, in relation to a power or function under this Act, means a Presidential Member designated by the President under section 38 to be responsible for the exercise of the power or performance of the function;

“direct voting system”, in relation to an election for an office in an organisation, means a method of election at which:

(a) all financial members; or

(b) all financial members included in the branch, section, class or other division of the members of the organisation that is appropriate having regard to the nature of the office;

are, subject to reasonable provisions in relation to enrolment, eligible to vote;

“electoral official” means an Australian Electoral Officer or a member of the staff of the Australian Electoral Commission;

“eligibility rules”, in relation to an organisation or association, means the rules of the organisation or association that relate to the conditions of eligibility for membership or the description of the industry (if any) in connection with which the organisation is, or the association is proposed to be, registered;

“employee” includes any person whose usual occupation is that of employee;

“employer” includes:

(a) any person who is usually an employer; and

(b) an unincorporated club;

“employing authority”, in relation to a class of employees, means the person or body, or each of the persons or bodies, prescribed as the employing authority in relation to the class of employees;

“financial year”, in relation to an organisation, means:

(a) the period of 12 months commencing on 1 July in any year; or

(b) if the rules of the organisation provide for another period of 12 months as the financial year of the organisation—the other period of 12 months;

“flight crew officer” has the meaning given to it in clause 1 of Schedule 1;

“flight crew officers’ employer” has the meaning given to it in clause 1 of Schedule 1;

“Full Bench” means a Full Bench of the Commission;

“full-time office” means an office the duties of which are of a full-time nature;

“industrial action” means:

(a) the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, the result of which is a restriction or limitation on, or a delay in, the performance of the work, where:

(i) the terms and conditions of the work are prescribed, wholly or partly, by an award or an order of the Commission, by an award, determination or order made by another tribunal under a law of the Commonwealth or otherwise by or under a law of the Commonwealth; or

(ii) the work is performed, or the practice is adopted, in connection with an industrial dispute;

(b) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, in accordance with the terms and conditions prescribed by an award or an order of the Commission, by an award, determination or order made by another tribunal under a law of the Commonwealth or otherwise by or under a law of the Commonwealth;

(c) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, that is adopted in connection with an industrial dispute; or

(d) a failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work;

but does not include:

(e) action by employees that is authorised or agreed to by the employer of the employees; or

(f) action by an employer that is authorised or agreed to by or on behalf of employees of the employer;

“industrial dispute” means:

(a) an industrial dispute (including a threatened, impending or probable industrial dispute):

(i) extending beyond the limits of any one State; and

(ii) that is about matters pertaining to the relationship between employers and employees; or

(b) a situation that is likely to give rise to an industrial dispute of the kind referred to in paragraph (a);

and includes a demarcation dispute;

“Industrial Registry” means the Australian Industrial Registry;

“industry” includes:

(a) any business, trade, manufacture, undertaking or calling of employers;

(b) any calling, service, employment, handicraft, industrial occupation or vocation of employees; and

“inspector” means:

(a) a person appointed as an inspector under subsection 84 (2); or

(b) an officer of the Public Service of a State or Territory to whom an arrangement referred to in subsection 84 (3) applies;

“irregularity”, in relation to an election or ballot, includes:

(a) a breach of the rules of an organisation or branch of an organisation; and

(b) an act or omission by means of which:

(i) the full and free recording of votes by all persons entitled to record votes and by no other persons; or

(ii) a correct ascertainment or declaration of the results of the voting;

is, or is attempted to be, prevented or hindered;

“Judge” has the same meaning as in the Federal Court of Australia Act 1976;

“judgment” has the same meaning as in the Federal Court of Australia Act 1976;

“magistrate’s court” means:

(a) a court constituted by a police, stipendiary or special magistrate;

(b) a court constituted by an industrial magistrate who is also a police, stipendiary or special magistrate; or

“maritime employee” has the meaning given to it in clause 1 of Schedule 1;

“Northern Territory authority” means:

(a) a body corporate established for a public purpose by or under a law of the Northern Territory; or

(b) a body corporate:

(i) incorporated under a law of the Northern Territory; and

(ii) in which the Northern Territory has a controlling interest;

other than a prescribed body;

“occupier”, in relation to premises, includes a person in charge of the premises;

“office”, in relation to an organisation or branch of an organisation, means:

(a) an office of president, vice-president, secretary or assistant secretary of the organisation or branch;

(b) the office of a voting member of a collective body of the organisation or branch, being a collective body that has power in relation to any of the following functions:

(i) the management of the affairs of the organisation or branch;

(ii) the determination of policy for the organisation or branch;

(iii) the making, alteration or rescission of rules of the organisation or branch;

(iv) the enforcement of rules of the organisation or branch, or the performance of functions in relation to the enforcement of such rules;

(c) an office the holder of which is, under the rules of the organisation or branch, entitled to participate directly in any of the functions referred to in subparagraphs (b) (i) and (iv), other than an office the holder of which participates only in accordance with directions given by a collective body or another person for the purpose of implementing:

(i) existing policy of the organisation or branch; or

(ii) decisions concerning the organisation or branch;

(d) an office the holder of which is, under the rules of the organisation or branch, entitled to participate directly in any of the functions referred to in subparagraphs (b) (ii) and (iii); or

(e) the office of a person holding (whether as trustee or otherwise) property:

(i) of the organisation or branch; or

(ii) in which the organisation or branch has a beneficial interest;

“officer”, in relation to an organisation or branch of an organisation, means a person who holds an office in the organisation or branch;

“one-tier collegiate electoral system” means a collegiate electoral system comprising only one stage after the first stage;

“organisation” means an organisation registered under this Act;

“panel” means a panel to which an industry has been assigned under section 37;

“peak council” means a national council or federation that is effectively representative of a significant number of organisations representing employers or employees in a range of industries;

“pilot” has the meaning given to it in clause 1 of Schedule 1;

“postal ballot” means a ballot for the purposes of which:

(a) a ballot paper is sent by prepaid post to each person entitled to vote; and

(b) facilities are provided for the return of the completed ballot paper by post by the voter without expense to the voter;

“premises” includes any land, building, structure, mine, mine working, ship, aircraft, vessel, vehicle or place;

“President” means the President of the Commission;

“Presidential Member” means the President or a Deputy President;

“previous Act” means the Conciliation and Arbitration Act 1904, and includes any other Act so far as the other Act affects the operation of that Act;

“public sector employment” means employment of, or service by, a person in any capacity (whether permanently or temporarily and whether full-time or part-time):

(a) under the Public Service Act 1922;

(b) by or in the service of a Commonwealth authority;

(d) by or in the service of a Northern Territory authority; or

(e) by or in the service of a prescribed person or under a prescribed law;

but, other than in section 121, does not include:

(f) employment of, or service by, a person included in a prescribed class of persons; or

(g) employment or service under a prescribed law;

“Registrar” means the Industrial Registrar or a Deputy Industrial Registrar;

“registry” means the Principal Registry or another registry established under section 64;

“relevant Presidential Member”, in relation to an industrial dispute, means the Presidential Member who is a member of the panel to which the industry concerned has been assigned or, if the industry concerned has not been assigned to a panel, the President;

“secondary office”, in relation to a person who holds an office of member of the Commission and an office of member of a prescribed State

industrial authority, means the office to which the person was most recently appointed;

“ship” has the meaning given to it in clause 1 of Schedule 1;

“special magistrate” means a magistrate appointed as a special magistrate under a law of a State or Territory;

“State industrial authority” means:

(a) a board or court of conciliation or arbitration, or tribunal, body or persons, having authority under a State Act to exercise any power of conciliation or arbitration in relation to industrial disputes within the limits of the State;

(b) a special board constituted under a State Act relating to factories; or

“stevedoring operations” has the meaning given to it in clause 1 of Schedule 1;

“this Act” includes the regulations;

“Trade Practices Act” means the Trade Practices Act 1974;

“trade union” means:

(a) an organisation of employees;

(b) an association of employees that is registered or recognised as a trade union (however described) under the law of a State or Territory; or

(c) an association of employees a principal purpose of which is the protection and promotion of the employees’ interests in matters concerning their employment;

“waterside employer” has the meaning given to it in clause 1 of Schedule 1;

“waterside worker” has the meaning given to it in clause 1 of Schedule 1;

“wharf has the meaning given to it in clause 1 of Schedule 1.

(2) In this Act, a reference to a decision or determination of the Commission includes a reference to a decision or determination made by a member of the Commission in the capacity of designated Presidential Member.

(3) In this Act, unless the contrary intention appears, a reference to an industrial dispute includes a reference to:

(a) a part of an industrial dispute;

(b) an industrial dispute so far as it relates to a matter in dispute; and

(4) In this Act, unless the contrary intention appears, a reference to an office in an association or organisation includes a reference to an office in a branch of the association or organisation.

(5) In this Act, unless the contrary intention appears, a reference to:

(a) a person who is eligible to become a member of an organisation; or

(b) a person who is eligible for membership of an organisation;

includes a reference to a person who is eligible merely because of an agreement made under rules of the organisation made under subsection 202 (1).

(6) In this Act, a reference to a ballot or election being conducted, or a step in a ballot or election being taken, by the Australian Electoral Commission is a reference to the ballot or election being conducted, or the step being taken, by an electoral official.

(7) In this Act, a reference to a person making a statement that is to the person’s knowledge false or misleading in a material particular includes a reference to a person making a statement where the person is reckless as whether the statement is false or misleading in a material particular.

(8) In this Act, a reference to engaging in conduct includes a reference to being, whether directly or indirectly, a party to or concerned in the conduct.

(9) For the purposes of this Act:

(a) conduct is capable of constituting industrial action even if the conduct relates to part only of the duties that persons are required to perform in the course of their employment; and

(b) a reference to industrial action includes a reference to a course of conduct consisting of a series of industrial actions.

(10) In the case of employees who are members of the Australian Federal Police, the reference in the definition of “industrial dispute” in subsection (1) to matters pertaining to the relationship between employers and employees does not include a reference to the matters set out in clause 3 of Schedule 1.

Additional operation of Act

5. (1) Without prejudice to its effect apart from this section, this Act also has effect as provided by this section.

(2) This Act has effect as if:

(a) each reference in this Act to preventing or settling industrial disputes, by conciliation or arbitration, included a reference to settling by conciliation, or hearing and determining, industrial issues; and

(b) each reference in this Act to an industrial dispute included a reference to an industrial issue.

(3) For the purposes of this section, the following are industrial issues:

(a) matters pertaining to the relationship between waterside employers and waterside workers, so far as those matters relate to trade or commerce:

(i) between Australia and a place outside Australia;

(ii) between the States; or

(iii) within a Territory, between a State and a Territory, or between 2 Territories;

(b) matters pertaining to the relationship between employers and maritime employees, so far as those matters relate to trade or commerce:

(i) between Australia and a place outside Australia;

(ii) between the States; or

(iii) within a Territory, between a State and a Territory, or between 2 Territories;

(i) the relationship between the Australian National Airlines Commission and flight crew officers employed by the Australian National Airlines Commission;

(ii) the relationship between Qantas Airways Limited and flight crew officers employed by Qantas Airways Limited; or

(iii) the relationship between flight crew officers and flight crew officers’ employers, so far as those matters relate to trade or commerce:

(a) between Australia and a place outside Australia;

(b) between the States; or

(d) matters pertaining to the relationship between employers and employees in public sector employment;

(e) matters (other than the matters set out in clause 3 of Schedule 1) pertaining to the terms or conditions of service of members of the Australian Federal Police.

(4) The reference in paragraph (3) (a) to matters pertaining to the relationship between waterside employers and waterside workers includes a reference to the matters set out in clause 2 of Schedule 1.

(5) For the purposes of paragraph (3) (c), but without limiting that paragraph, an industrial issue shall be taken to relate to trade or commerce of a kind referred to in subparagraph (3) (c) (iii) so far as the matter relates to:

(a) employment of persons in or for, or for training in or for, the performance of duties as flight crew officers in relation to aircraft engaged in such trade or commerce; or

(b) the performance of duties that include duties as flight crew officers in relation to aircraft engaged in such trade or commerce.

Application to Crown

6. This Act binds the Crown in right of the Commonwealth and each of the States and the Northern Territory, but nothing in this Act renders the Crown in right of the Commonwealth or a State or the Northern Territory liable to be prosecuted for an offence.

Extension to Christmas Island

7. (1) This Act extends to Christmas Island.

(2) This Act applies in relation to Christmas Island with such modifications as are prescribed.

PART II—AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Division 1—Establishment of Commission

Establishment of Commission

8. (1) There is established a commission by the name of the Australian Industrial Relations Commission.

(2) The Commission consists of:

(a) a President;

(b) such number of Deputy Presidents as, from time to time, hold office under this Act; and

Appointment of Commission members etc.

9. (1) The President, Deputy Presidents and Commissioners shall be appointed by the Governor-General by commission and hold office as provided by this Act.

(2) Each Presidential Member has the same rank, status and precedence as a Judge of the Court.

(3) A Presidential Member or former Presidential Member is entitled to be styled “The Honourable”.

(4) A person is not entitled to be styled “The Honourable” merely because the person is acting, or has acted, as a Presidential Member.

Qualifications for appointment

10. (1) The Governor-General may only appoint a person as the

President if:

(a) the person has been a Judge of a court created by the Parliament or a court of a State or Territory, or has been enrolled as a legal practitioner of the High Court, or the Supreme Court of a State or Territory, for at least 5 years; and

(b) in the opinion of the Governor-General, the person is, because of skills and experience in the field of industrial relations, a suitable person to be appointed as President.

(2) The Governor-General may only appoint a person as a Deputy

President if:

(b) the person has had experience at a high level in industry or commerce or in the service of:

(i) a peak council or another association representing the interests of employers or employees; or

(ii) a government or an authority of a government; or

(c) the person has, at least 5 years previously, obtained a degree of a university or an educational qualification of a similar standard after studies in the field of law, economics or industrial relations, or some other field of study considered by the Governor-General to have substantial relevance to the duties of a Deputy President;

and, in the opinion of the Governor-General, the person is, because of skills and experience in the field of industrial relations, a suitable person to be appointed as a Deputy President.

(3) The Governor-General may only appoint a person as a Commissioner if the person has, in the opinion of the Governor-General, appropriate skills and experience in the field of industrial relations.

Seniority

11. The members of the Commission have seniority according to the following order of precedence:

(a) the President;

(b) the Deputy Presidents, according to the days on which their commissions took effect, or, where the commissions of 2 or more of them took effect on the same day, according to the precedence assigned to them by their commissions;

(c) the Commissioners, according to the days on which their commissions took effect, or, where the commissions of 2 or more of them took effect on the same day, according to the precedence assigned to them by their commissions.

Performance of duties on part-time basis

12. (1) A member of the Commission may, with the consent of the President, perform his or her duties on a part-time basis.

(2) Where the President consents to a member performing his or her duties on a part-time basis, the member shall, subject to the Remuneration Tribunal Act 1973, be paid:

(a) such remuneration as is determined by the Remuneration Tribunal; and

(b) such allowances as are prescribed.

(3) In this section:

“member of the Commission” does not include:

(a) the President; or

(b) a person who also holds office as a member of a prescribed State industrial authority.

Dual federal and State appointments

13. A person who is a member of the Commission may be appointed as a member of a prescribed State industrial authority, and a person who is a member of a prescribed State industrial authority may, subject to section 10, be appointed as a member of the Commission, and, subject to any law of the State, a person so appointed may, at the same time, hold the offices of member of the Commission and member of the prescribed State industrial authority.

Performance of duties by dual federal and State appointees

14. As agreed from time to time by the President and the head of the prescribed State industrial authority, a person who holds an office of member of the Commission and an office of member of a prescribed State industrial authority:

(a) may perform the duties of the secondary office; and

(b) may exercise, in relation to a particular matter:

(i) any powers that the person has in relation to the matter as a member of the Commission; and

(ii) any powers that the person has in relation to the matter as a member of the State industrial authority.

Dual federal appointments

15. (1) Nothing in this Act prevents a person who holds office as a member of the Commission from holding at the same time:

(a) an office as member of a prescribed Commonwealth tribunal or prescribed Territory tribunal; or

(b) an office under a Commonwealth or Territory law that provides for the office to be held by a member of the Commission.

(2) A person who is a member of the Commission may, in accordance with and subject to the directions of the President, perform functions as a member of a prescribed Territory tribunal.

(3) In this section:

“tribunal” does not include a court created by the Parliament.

Tenure of Commission members

16. (1) A member of the Commission holds office until the member resigns, is removed from office or attains the age of 65 years.

(2) The appointment of a person who is a member of a prescribed State industrial authority as a member of the Commission may be for a fixed term and, in that case, the person holds office as a member of the Commission until:

(a) the term ends;

(b) the person ceases to be a member of the prescribed State industrial authority; or

whichever first happens.

Acting President

17. (1) The Governor-General may appoint a Deputy President qualified to be appointed as the President to act in the office of President:

(a) during a vacancy in the office (whether or not an appointment has previously been made to the office); or

(b) during any period, or during all periods, when the President is absent from duty or from Australia or is, for any other reason, unable to perform the duties of the office.

(2) Anything done by or in relation to a person purporting to act under subsection (1) is not invalid because:

(a) the occasion for the appointment had not arisen;

(b) there was a defect or irregularity in connection with the appointment;

(d) the occasion for the person to act had not arisen or had ceased.

(3) In this section:

“Deputy President” does not include a person acting as Deputy President.

Acting Deputy Presidents

18. (1) The Governor-General may appoint a person qualified to be appointed as a Deputy President to act as Deputy President for a specified period (including a period that exceeds 12 months) if the Governor-General is satisfied that the appointment is necessary to enable the Commission to perform its functions effectively.

(2) Anything done by or in relation to a person purporting to act under subsection (1) is not invalid because:

(a) the occasion for the appointment had not arisen;

(b) there was a defect or irregularity in connection with the appointment; or

(3) For the purposes of subsection (1) only, a person is not disqualified from appointment as a Deputy President merely because the person has attained the age of 65.

Oath or affirmation of office

19. A member of the Commission shall, before proceeding to discharge the duties of the office, take before the Governor-General, a Justice of the High Court, a Judge of the Court or a Judge of the Supreme Court of a

State or Territory an oath or affirmation in accordance with the form in Schedule 2.

Duty of Commission members

20. Each member of the Commission shall keep acquainted with industrial affairs and conditions.

Salary and allowances of Presidential Members etc.

21. (1) The President shall receive salary, expenses of office allowance and travelling allowance at the same rates, and subject to the same conditions, as are applicable in relation to the Chief Judge of the Court.

(2) Each Deputy President shall receive salary, expenses of office allowance and travelling allowance at the same rates, and subject to the same conditions, as are applicable in relation to the Judges of the Court.

(3) The salary and expenses of office allowance of the Presidential Members accrue from day to day and are payable monthly.

(4) Where a person who is a member of a prescribed State industrial authority is appointed as a member of the Commission, the person shall not be remunerated in relation to the office of member of the Commission, but the person may be paid, in relation to expenses in travelling to discharge the duties of the office, such sums (if any) as the Governor-General considers reasonable.

(5) A person who, at the same time, holds the offices of member of the Commission and member of a prescribed Commonwealth tribunal or prescribed Territory tribunal as permitted by section 15:

(a) shall be remunerated in relation to the office of member of the tribunal only in accordance with another law of the Commonwealth or Territory relating to the remuneration of persons holding at the same time offices of member of the Commission and member of the tribunal; but

(b) may be paid, in relation to expenses in travelling to discharge the duties of the office of member of the tribunal, such sums (if any) as the Governor-General considers reasonable.

(6) This section has effect subject to:

(a) section 12; and

(b) any Commonwealth or Territory law making provision as mentioned in paragraph 15 (1) (b).

Application of Judges’ Pensions Act

22. (1) Subject to subsection (2), the Judges’ Pensions Act 1968 does not apply in relation to a Presidential Member if the Presidential Member was, immediately before being appointed as a Presidential Member, an eligible employee for the purposes of the Superannuation Act 1976.

(2) If:

(a) a person was, immediately before being appointed as a Presidential Member, an eligible employee for the purposes of the Superannuation Act 1976; and

(b) within 3 months after being appointed as a Presidential Member, the person elects, by written notice to the Minister, to cease to be an eligible employee for the purposes of that Act;

subsection (1) does not apply, and shall be taken not to have applied, in relation to the person, and the person shall be taken to have ceased to be such an eligible employee immediately before the person was appointed as a Presidential Member.

(3) Where:

(a) a person makes an election under subsection (2); and

(b) the person would, but for this subsection, be entitled to a benefit under Division 1, 2 or 4 of Part V, or under Division 3 of Part IX, of the Superannuation Act 1976;

that Act applies in relation to the person as if the person were not entitled to the benefit.

Remuneration and allowances of Commissioners

23. Subject to the Remuneration Tribunal Act 1973, a Commissioner shall be paid:

(a) such remuneration as is determined by the Remuneration Tribunal; and

(b) such allowances as are prescribed.

Removal of Presidential Member from office

24. The Governor-General may remove a Presidential Member from office on an address praying for removal on the grounds of proved misbehaviour or incapacity being presented to the Governor-General by both Houses of the Parliament in the same session.

Outside employment of Commissioner

25. (1) Subject to subsection (2), a Commissioner shall not, except with the consent of the Minister, engage in paid employment outside the duties of the office.

(2) Subsection (1) does not apply in relation to the holding by a member of an office or appointment in the Defence Force.

Leave of absence of Commissioner

26. (1) The President may grant leave of absence to a Commissioner on such terms and conditions as to remuneration or otherwise as the President determines.

(2) In determining the terms and conditions on which leave of absence is granted to a Commissioner under subsection (1), the President shall have regard to:

(a) any past employment of the Commissioner in the service of a State or an authority of a State; or

(b) any past service of the Commissioner as a member of an authority of a State.

Disclosure of interest by Commission members

27. (1) Where, for the purposes of a proceeding, the Commission is constituted by, or includes, a member of the Commission who has or acquires any interest, pecuniary or otherwise, that could conflict with the proper performance of the member’s functions in relation to the proceeding:

(a) the member shall disclose the interest to the parties to the proceeding; and

(b) unless all the parties consent—the member shall not take part in the proceeding or exercise any powers in relation to the proceeding.

(2) Where the President becomes aware that, for the purposes of a proceeding, the Commission is constituted by, or includes, a member of the Commission who has or acquires any interest, pecuniary or otherwise, that could conflict with the proper performance of the member’s functions in relation to the proceeding:

(a) if the President considers that the member should not take part, or should not continue to take part, in the proceeding—the President shall give a direction to the member accordingly; or

(b) in any other case—the President shall cause the interest of the member to be disclosed to the parties to the proceeding and the member shall not take part in the proceeding or exercise any powers in relation to the proceeding unless all the parties to the proceeding consent.

Termination of appointment of Commissioner

28. (1) The Governor-General may remove a Commissioner from office on an address praying for removal on the grounds of proved misbehaviour or incapacity being presented to the Governor-General by both Houses of the Parliament in the same session.

(2) The Governor-General shall terminate the appointment of a Commissioner who:

(a) becomes bankrupt, applies to take the benefit of a law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of remuneration for their benefit;

(b) is absent from duty, except on leave of absence granted by the President, for 14 consecutive days or for 28 days in any 12 months; or

Resignation by Commission member

29. A member of the Commission may resign by signed instrument delivered to the Governor-General.

Division 2—Organisation of Commission

Manner in which Commission may be constituted

30. (1) Subject to this Act, the Commission may be constituted by:

(a) a single member, or 2 or more members, of the Commission; or

(b) a Full Bench.

(2) A Full Bench consists of at least 3 members of the Commission, including at least 2 Presidential Members, established by the President as a Full Bench for the purposes of a proceeding.

(3) The Commission constituted by a member or members of the Commission may exercise its powers (whether under this Act or otherwise) even though the Commission constituted by another member or other members of the Commission is at the same time exercising the powers of the Commission (whether under this Act or otherwise).

Powers exercisable by single member of Commission

31. Subject to this Act, a function or power of the Commission may be performed or exercised by a single member of the Commission.

Functions and powers conferred on members

32. A function or power conferred by this Act on a member or members of the Commission, however described (including a member in the capacity of designated Presidential Member), shall, where the context admits, be taken to be a function or power conferred on the Commission to be performed or exercised by the member or members.

Powers may be exercised of Commission’s own motion or on application

33. Subject to this Act, the Commission may perform a function or exercise a power:

(a) of its own motion; or

(b) on the application of:

(i) a party to an industrial dispute; or

(ii) an organisation or person bound by an award.

Continuation of bearing by Commission

34. (1) Where:

(a) the hearing of a matter has been commenced before the Commission constituted by a single member; and

(b) before the matter has been determined, the member becomes unavailable;

the President shall appoint another member of the Commission to constitute the Commission for the purposes of the matter.

(2) Where the hearing of a matter has been commenced before the Commission constituted by 2 or more members and, before the matter has been determined, one of the members becomes unavailable, the President:

(a) shall if it is necessary for the purpose of establishing a Full Bench of the Commission under section 30; and

(b) may in any other case;

appoint a member to participate as a member of the Commission for the purposes of the matter.

(3) A member of the Commission becomes unavailable where the member is unable to continue dealing with a matter, whether because the member has ceased to be a member of the Commission or is prevented from taking part in the proceeding by section 27 or for any other reason.

(4) Where the Commission is reconstituted under this section for the purposes of a matter, the Commission as reconstituted shall have regard to the evidence given, the arguments adduced and any award, order or determination made in relation to the matter before the Commission was reconstituted.

Commission divided in opinion

35. If the persons constituting the Commission for the purposes of any proceeding are divided in opinion as to the decision to be given, the decision shall be given, if there is a majority, according to the opinion of the majority, but, if the members are equally divided in opinion, the opinion that shall prevail is:

(a) where the President is a member—the opinion of the President;

(b) where the President is not a member and only one Deputy President is a member—the opinion of the Deputy President;

(c) where the President is not a member and 2 or more Deputy Presidents are members—the opinion of the senior Deputy President; and

(d) in any other case—the opinion of the senior Commissioner who is a member.

Arrangement of business of Commission

36. The President shall direct the business of the Commission.

Panels of Commission for particular industries

37. (1) The President shall, as far as practicable, assign each industry to a panel of members of the Commission consisting of a Presidential Member and at least one Commissioner and, subject to this Act, the powers of the Commission in relation to that industry (other than powers exercisable by a Full Bench) shall, as far as practicable, be exercised by a member or members of the panel.

(2) The Presidential Member who is a member of a panel shall organise and allocate the work of the panel, and the other members of the panel shall comply with directions given by the Presidential Member in relation to that work.

(3) A member of the Commission may be a member of more than one panel.

President to designate Presidential Members

38. (1) Where this Act confers a power or function on a designated Presidential Member, the President shall, by signed instrument, designate at least one Presidential Member to be responsible for the exercise of the power or the performance of the function.

(2) Anything done by or in relation to a person purporting to act under a designation under subsection (1) is not invalid because:

(a) there was a defect or irregularity in relation to the designation; or

(b) the designation had ceased to have effect.

Conference of Commission members

39. The President shall, whenever the President considers it desirable but at least once in each year, summon a conference of the members of the Commission to discuss matters relating to the operation of Part VI and of this Part and, in particular, to discuss means for ensuring speed in the settlement of industrial disputes.

Delegation by President

40. The President may, by signed instrument, delegate to a Deputy President all or any of the President’s powers under this Act.

Protection of Commission members

41. A member of the Commission has, in the performance of functions as a member of the Commission, the same protection and immunity as a Judge of the Court.

Division 3—Representation and intervention

Representation of parties before Commission

42. (1) A party to a proceeding before the Commission may appear in person.

(2) Subject to this and any other Act, a party to a proceeding before the Commission may be represented only as provided by this section.

(3) A party (including an employing authority) may be represented by counsel, solicitor or agent:

(a) by leave of the Commission and with the consent of all parties;

(b) by leave of the Commission, granted on application made by a party, if the Commission is satisfied that, having regard to the

subject-matter of the proceeding, there are special circumstances that make it desirable that the parties may be so represented; or

(c) by leave of the Commission, granted on application made by the party, if the Commission is satisfied that the party can only adequately be represented by counsel, solicitor or agent.

(4) A party that is an organisation may be represented by:

(a) a member, officer or employee of the organisation; or

(b) an officer or employee of a peak council to which the organisation is affiliated.

(5) An employing authority may be represented by a prescribed person.

(6) Regulations made for the purposes of subsection (5) may prescribe different classes of persons in relation to different classes of proceedings.

(7) A party other than an organisation or employing authority may be represented by:

(a) an officer or employee of the party;

(b) a member, officer or employee of an organisation of which the party is a member;

(d) an officer or employee of a peak council to which an organisation or association of which the party is a member is affiliated.

(8) Where the Minister is a party (other than in the capacity of employing authority), the Minister may be represented by counsel or solicitor or by another person authorised for the purpose by the Minister.

(9) Where the Minister is a party (other than in the capacity of employing authority), another party (including an employing authority) may, with the leave of the Commission, be represented by counsel, solicitor or agent.

(10) In this section (other than paragraph (3) (a)):

“party” includes an intervener.

Intervention generally

43. Where the Commission is of the opinion that an organisation, a person (including the Minister) or a body should be heard in a matter before the Commission, the Commission may grant leave to the organisation, person or body to intervene in the matter.

Particular rights of intervention of Minister

44. (1) The Minister may, on behalf of the Commonwealth, by giving written notice to the Industrial Registrar, intervene in the public interest in a matter before a Full Bench.

(2) The Minister may, on behalf of the Commonwealth, by giving written notice to the Industrial Registrar, intervene in the public interest in

a matter before the Commission so far as the matter involves public sector employment.

Division 4—Appeals to Full Bench and references to Court

Appeals to Full Bench

45. (1) Subject to this Act, an appeal lies to a Full Bench, with the leave of the Full Bench, against:

(a) a decision of a member of the Commission by way of a finding in relation to an industrial dispute or alleged industrial dispute;

(b) an award or order made by a member of the Commission otherwise than under section 112;

(d) a decision of a member of the Commission under paragraph 111 (1) (g);

(e) a decision of a member of the Commission refusing to certify an agreement under section 115;

(f) a decision (other than in relation to a prescribed matter) in a proceeding before a designated Presidential Member acting in that capacity; and

(g) a decision of a member of the Commission that the member has jurisdiction, or a refusal or failure of a member of the Commission to exercise jurisdiction, in a matter arising under this Act.

(2) A Full Bench shall grant leave to appeal under subsection (1) if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted.

(3) An appeal under subsection (1) may be instituted:

(a) in the case of an appeal under paragraph (1) (b)—by an organisation or person bound by the award or order;

(b) in the case of an appeal under paragraph (1) (e)—by a party to the agreement;

(d) in any other case—by an organisation or person aggrieved by the decision or act concerned.

(4) Where an appeal has been instituted under this section, a Full Bench may, on such terms and conditions as it considers appropriate, order that the operation of the whole or a part of the decision or act concerned be stayed pending the determination of the appeal or until further order of the Full Bench.

(5) A Full Bench may direct that 2 or more appeals be heard together, but an organisation or person who has a right to be heard in relation to one

of the appeals may be heard in relation to a matter raised in another of the appeals only with the leave of the Full Bench.

(6) For the purposes of an appeal under this section, a Full Bench:

(a) may admit further evidence; and

(b) may direct a member of the Commission to provide a report in relation to a specified matter.

(7) On the hearing of the appeal, the Full Bench may do one or more of the following:

(a) confirm, quash or vary the decision or act concerned;

(b) make an award, order or decision dealing with the subject-matter of the decision or act concerned;

(c) direct the member of the Commission whose decision or act is under appeal, or another member of the Commission, to take further action to deal with the subject-matter of the decision or act in accordance with the directions of the Full Bench;

(d) in the case of an appeal under paragraph (1) (d)—take any action (including making an award or order) that could have been taken if the decision under paragraph 111 (1) (g) had not been made.

(8) Where, under paragraph (6) (b), a Full Bench directs a member of the Commission to provide a report, the member shall, after making such investigation (if any) as is necessary, provide the report to the Full Bench.

(9) Each provision of this Act relating to the hearing or determination of an industrial dispute extends to the hearing or determination of an appeal under this section.

References to Court by Commission on question of law

46. (1) The Commission may refer a question of law arising in a matter before the Commission for the opinion of the Court.

(2) If the question referred to the Court is not whether the Commission may exercise powers in relation to the matter, the Commission may, in spite of the reference, make an award or order in the matter.

(3) On the determination of the question by the Court:

(a) if the Commission has not made an award or order in the matter—the Commission may make an award or order not inconsistent with the opinion of the Court; or

(b) if the Commission has made an award or order in the matter—the Commission shall vary the award or order in such a way as will make it consistent with the opinion of the Court.

Division 5—Miscellaneous

Seals of Commission

47. (1) The Commission shall have a seal on which are inscribed the words “The Seal of the Australian Industrial Relations Commission”.

(2) A duplicate of the seal shall be kept at each registry.

(3) Such other seals as are required for the business of the Commission shall be kept and used at each registry, and shall be in such form and kept in such custody, as the President directs.

(4) A document, or a copy of a document, purporting to be sealed with the seal of the Commission or a duplicate of the seal, or with a seal referred to in subsection (3), is receivable in evidence without further proof of the seal.

Rules of Commission

48. (1) The President, after consultation with members of the Commission, may, by signed instrument, make rules, not inconsistent with this Act, with respect to:

(a) the practice and procedure to be followed in the Commission; or

(b) the conduct of business in the Commission;

and, in particular:

(c) the manner in which, and the time within which, applications, submissions and objections may be made to the Commission; and

(d) the manner in which applications, submissions and objections may be dealt with by the Commission.

(2) A Rule of the Commission:

(a) is a disallowable instrument for the purposes of section 46a of the Acts Interpretation Act 1901; and

(b) is a statutory rule within the meaning of the Statutory Rules Publication Act 1903.

(3) Until Rules of the Commission have been made under this section with respect to the practice and procedure of the Commission, the regulations may make provision with respect to the matter.

(4) If Rules of the Commission have not been made under this section with respect to the practice and procedure of the Commission, and the regulations do not make provision with respect to the matter, the regulations made under the previous Act (as in force immediately before the commencement of this section) apply, so far as practicable and with all necessary modifications, with respect to the practice and procedure of the Commission in the same manner as they applied immediately before that commencement to the practice and procedure of the Australian Conciliation and Arbitration Commission.

Annual report of Commission

49. (1) The President shall, as soon as practicable after the end of each financial year, prepare and provide to the Minister a report of the operations of the Commission during that year.

(2) The Minister shall cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after its receipt by the Minister.

PART III—THE COURT

Division 1—Jurisdiction of Court

Jurisdiction of Court

50. (1) The Court has jurisdiction with respect to matters arising under this Act in relation to which:

(a) applications may be made to it under this Act;

(b) questions may be referred to it under this Act;

(d) penalties may be sued for and recovered under section 178; or

(e) prosecutions may be instituted for offences against this Act.

(2) The jurisdiction conferred on the Court by this Act, and the jurisdiction of the Court under section 24 of the Federal Court of Australia Act 1976 in relation to judgments in matters arising under this Act, shall be exercised in the Industrial Division of the Court.

Interpretation of awards

51. (1) The Court may give an interpretation of an award on application by:

(a) the Minister; or

(b) an organisation or person bound by the award.

(2) The decision of the Court is final and conclusive and is binding on the organisations and persons bound by the award who have been given an opportunity of being heard by the Court.

Exclusive jurisdiction

52. (1) Subject to this Act, the jurisdiction of the Court in relation to an act or omission for which an organisation or member of an organisation is liable to be sued, or to be proceeded against for a pecuniary penalty, is exclusive of the jurisdiction of any other court created by the Parliament or any court of a State or Territory.

(2) The jurisdiction of the Court in relation to matters arising under section 208, 209 or 261 or Division 5 of Part IX is exclusive of the jurisdiction, or any similar jurisdiction, of a State industrial authority.

(3) The jurisdiction of the Court under section 56 is exclusive of the jurisdiction of any court of a State or Territory to hear and determine an appeal from a judgment from which an appeal may be brought to the Court under that section.

Exercise of Court’s jurisdiction

53. (1) Subject to subsection (2), the jurisdiction of the Court may be exercised by a single Judge.

(2) The jurisdiction of the Court shall be exercised by a Full Court in relation to:

(a) questions referred to the Court under section 46 or 82;

(b) matters in relation to which applications are made to the Court under section 153; and

(3) Subsection (2) does not require the jurisdiction of the Court to be exercised by a Full Court in relation to a prosecution for an offence merely because the offence relates to a matter to which that subsection applies.

Reference of proceedings to Full Court

54. (1) At any stage of a proceeding in a matter arising under this Act, a single Judge exercising the jurisdiction of the Court:

(a) may refer a question of law for the opinion of a Full Court;

(b) may, of the Judge’s own motion or on the application of a party, refer the matter to a Full Court to be heard and determined; and

(2) Where a Judge refers a matter to a Full Court under subsection (1), the Full Court may have regard to any evidence given, or arguments adduced, in the proceeding before the Judge.

Limitation on appeals to Full Court

55. In spite of anything in the Federal Court of Australia Act 1976, an appeal does not lie to a Full Court from a judgment of the Court constituted by a single Judge in an inquiry referred to in section 219 or 247.

Appeals from State and Territory courts

56. (1) An appeal lies to the Court from a judgment of a State court (other than a Supreme Court) or of a court of a Territory in a matter arising under this Act.

(2) It is not necessary to obtain the leave of the Court or the court appealed from in relation to an appeal under subsection (1).

(3) An appeal does not lie to the High Court from a judgment from which an appeal may be made to the Court under subsection (1).

Division 2—Appeals to High Court

Limitations on appeals from Court to High Court

57. (1) An appeal does not lie to the High Court from a judgment of a single Judge of the Court under this Act.

(2) Subject to subsection (3), an appeal lies to the High Court, with the leave of the High Court, from a judgment of a Full Court of the Court in a matter arising under this Act.

(3) An appeal does not lie to the High Court from a judgment of a Full Court of the Court:

(a) in a matter arising under section 46, 51, 61 or 82 or Part IX (other than Division 8) unless the judgment was made, given or pronounced in relation to a prosecution for an offence; or

(b) in relation to a contempt of the Court in relation to a proceeding in a matter arising under this Act.

Division 3—Representation and intervention

Representation of parties before Court

58. (1) A party to a proceeding before the Court in a matter arising under this Act may appear in person.

(2) Subject to this and any other Act, a party to a proceeding before the Court in a matter arising under this Act may be represented only as provided by this section.

(3) A party (including an employing authority) may be represented by counsel or solicitor.

(4) An employing authority may be represented by a prescribed person.

(5) Regulations made for the purposes of subsection (4) may prescribe different classes of persons in relation to different classes of proceedings.

(6) Subject to subsections (8) and (9), a party that is an organisation may be represented by:

(a) a member, officer or employee of the organisation; or

(b) an officer or employee of a peak council to which the organisation is affiliated.

(7) Subject to subsections (8) and (9), a party other than an organisation or employing authority may be represented by:

(a) an officer or employee of the party;

(b) a member, officer or employee of an organisation of which the party is a member;

(d) an officer or employee of a peak council to which an organisation or association of which the party is a member is affiliated.

(8) Subsections (6) and (7) do not apply in relation to:

(a) proceedings under section 56; or

(b) proceedings in relation to offences against this Act.

(9) In a relevant proceeding, a party may be represented as provided by subsections (6) and (7) only with the leave of the Court.

(10) In this section:

“party” includes an intervener;

“relevant proceeding” means:

(a) proceedings under section 46, 51, 61, 82 or 153; or

(b) proceedings under section 31 of the Federal Court of Australia Act 1976.

Intervention generally

59. Where the Court is of the opinion that an organisation, person or body should be heard in a proceeding before the Court in a matter arising under this Act, the Court may grant leave to the organisation, person or body to intervene in the proceeding.

Particular rights of intervention of Minister

60. (1) The Minister may, on behalf of the Commonwealth, by giving written notice to the Registrar of the Court, intervene in the public interest in a proceeding before the Court in a matter arising under this Act.

(2) Where the Minister intervenes in a proceeding before the Court, the Court may, in spite of section 347, make an order as to costs against the Commonwealth.

(3) Where the Minister intervenes in a proceeding before the Court, then, for the purposes of the institution and prosecution of an appeal from a judgment given in the proceeding, the Minister shall be taken to be a party to the proceeding.

(4) Where, under subsection (3), the Minister institutes an appeal from a judgment, a court hearing the appeal may, in spite of section 347, make an order as to costs against the Commonwealth.

Division 4—Miscellaneous

Injunctions not to contravene Act etc.

61. The Court may grant an injunction requiring a person not to contravene, or to cease contravening, this Act.

PART IV—AUSTRALIAN INDUSTRIAL REGISTRY

Division 1—Establishment and functions of Australian Industrial Registry

Australian Industrial Registry

62. (1) There is established a registry to be known as the Australian Industrial Registry.

(2) There shall be an Industrial Registrar, and such Deputy Industrial Registrars as are necessary from time to time.

(3) The Industrial Registry shall consist of the Industrial Registrar, the Deputy Industrial Registrars and the other staff referred to in section 83.

(4) The Industrial Registrar shall direct the business of the Industrial Registry.

Functions of the Industrial Registry

63. (1) The functions of the Industrial Registry are:

(a) to keep a register of organisations;

(b) to act as the registry for the Commission and to provide administrative support to the Commission;

(d) such other functions as are conferred on the Industrial Registry by this Act.

(2) Subject to this Act, the register of organisations shall be kept in such form as the Industrial Registrar considers appropriate.

Registries

64. (1) The Governor-General shall cause a Principal Registry of the Industrial Registry to be established.

(2) The Governor-General may cause other registries of the Industrial Registry to be established, but shall cause at least one registry to be established in each State, the Australian Capital Territory and the Northern Territory.

Seals of the Registry

65. (1) The Industrial Registry shall have a seal on which are inscribed the words “The Seal of the Australian Industrial Registry”.

(2) A duplicate of the seal shall be kept at each registry.

(3) Such other seals as are required for the business of the Industrial Registry shall be kept and used at each registry, and shall be in such form and kept in such custody, as the Industrial Registrar directs.

(4) A document, or a copy of a document, purporting to be sealed with the seal of the Industrial Registry or a duplicate of that seal, or with a seal referred to in subsection (3), is receivable in evidence without further proof of the seal.

Annual report of Industrial Registry

66. (1) The Industrial Registrar shall, as soon as practicable after the end of each financial year, prepare and provide to the Minister a report of the operations of the Industrial Registry during that year.

(2) The Minister shall cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after its receipt by the Minister.

Division 2—Registrars

Industrial Registrar

67. (1) The Governor-General shall appoint a person to be the Industrial Registrar.

(2) The Industrial Registrar:

(a) has the powers and functions conferred on the Industrial Registrar, or on a Registrar, by or under this Act or an award; and

(b) shall perform the functions of the Industrial Registry, and has such powers as are necessary for the performance of those functions.

(3) The Principal Registry shall be directly controlled by the Industrial Registrar.

(4) In exercising the powers and performing the functions of his or her office in relation to the Commission, the Industrial Registrar shall comply with any directions given by the President.

(5) In allocating and managing the resources of the Industrial Registry, the Industrial Registrar shall have regard to the needs of the Commission.

Tenure of office of Industrial Registrar

68. (1) Subject to this Part, the Industrial Registrar holds office for such term (not exceeding 7 years) as is specified in the instrument of appointment, but is eligible for re-appointment.

(2) A person who has attained the age of 65 years shall not be appointed or re-appointed as the Industrial Registrar, and a person shall not be appointed or re-appointed as the Industrial Registrar for a term that extends beyond the day on which the person will attain the age of 65 years.

(3) The Industrial Registrar holds office on such terms and conditions (if any) in relation to matters not provided for by this Act as are determined by the Governor-General.

Remuneration and allowances of Industrial Registrar

69. Subject to the Remuneration Tribunal Act 1973, the Industrial Registrar shall be paid:

(a) such remuneration as is determined by the Remuneration Tribunal; and

(b) such allowances as are prescribed.

Outside employment of Industrial Registrar

70. (1) Subject to subsection (2), the Industrial Registrar shall not, except with the consent of the Minister, engage in paid employment outside the duties of the office.

(2) Subsection (1) does, not apply in relation to the holding by the Industrial Registrar of an office or appointment in the Defence Force.

Disclosure of interests by Industrial Registrar

71. (1) The Industrial Registrar shall give written notice to the Minister of all direct or indirect pecuniary interests that the Industrial Registrar has or acquires in any business or in any body corporate carrying on any business.

(2) Where the Industrial Registrar has or acquires any interest (whether pecuniary or otherwise) that could conflict with the proper exercise of a power, or the proper performance of a function, in relation to a proceeding before the Industrial Registrar:

(a) the Industrial Registrar shall disclose the interest to the parties to the proceeding; and

(b) unless all the parties consent to the Industrial Registrar exercising the power or performing the function in relation to the proceeding—the Industrial Registrar shall nominate a Deputy Industrial Registrar to exercise the power or perform the function.

Leave of absence of Industrial Registrar

72. The Minister may grant leave of absence to the Industrial Registrar on such terms and conditions as to remuneration or otherwise as the Minister determines.

Resignation by Industrial Registrar

73. The Industrial Registrar may resign by signed instrument delivered to the Governor-General.

Termination of appointment of Industrial Registrar

74. (1) The Governor-General may terminate the appointment of the Industrial Registrar for misbehaviour or physical or mental incapacity.

(2) The Governor-General shall terminate the appointment of the Industrial Registrar if the Industrial Registrar:

(a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of remuneration for their benefit;

(b) is absent from duty, except on leave of absence granted by the Minister, for 14 consecutive days or for 28 days in any 12 months;

(d) fails, without reasonable excuse, to comply with section 71.

Deputy Industrial Registrars

75. (1) The Governor-General shall appoint such number of persons to be Deputy Industrial Registrars as are necessary from time to time.

(2) Each Deputy Industrial Registrar:

(a) has the powers and functions conferred on a Registrar by or under this Act or an award; and

(b) subject to the directions of the Industrial Registrar, shall perform the functions of the Industrial Registry, and has such powers as are necessary for the performance of those functions.

Acting Industrial Registrar

76. (1) The Minister may appoint a person to act in the office of Industrial Registrar:

(a) during any vacancy in the office (whether or not an appointment has previously been made to the office); or

(b) during any period, or during all periods, when the Industrial Registrar is absent from duty or from Australia or is, for any other reason, unable to perform the functions of the office.

(2) Anything done by or in relation to a person purporting to act under subsection (1) is not invalid because:

(a) the occasion for the appointment had not arisen;

(b) there was a defect or irregularity in connection with the appointment;

(d) the occasion for the person to act had not arisen or had ceased.

Acting Deputy Industrial Registrars

77. (1) The Minister may appoint a person to act in the office of a Deputy Industrial Registrar:

(a) during a vacancy in the office (whether or not an appointment has previously been made to the office); or

(b) during any period, or during all periods, when the Deputy Industrial Registrar is absent from duty or from Australia or is, for any other reason, unable to perform the duties of the office.

(2) Anything done by or in relation to a person purporting to act under subsection (1) is not invalid because:

(a) the occasion for the appointment had not arisen;

(b) there was a defect or irregularity in connection with the appointment;

(d) the occasion for the person to act had not arisen or had ceased.

Oath or affirmation of office of Registrar

78. A Registrar shall, before proceeding to discharge the duties of the office, take before the Governor-General, a Justice of the High Court, a Judge of the Court or a Judge of the Supreme Court of a State or Territory an oath or affirmation in accordance with the form in Schedule 2.

Division 3—References and appeals

References by Registrar to Commission

79. (1) A Registrar may refer a matter, or a question (other than a question of law) arising in a matter, before the Registrar to the President for decision by the Commission.

(2) The Commission may:

(a) hear and determine the matter or question; or

(b) refer the matter or question back to the Registrar, with such directions or suggestions as the Commission considers appropriate.

(3) The powers of the Commission under this section are exercisable by:

(a) the President;

(b) a Presidential Member assigned by the President for the purposes of the matter or question concerned; or

Removal of matters before Registrar

80. (1) Where a matter is before a Registrar, the President may order that the matter be heard and determined by the Commission.

(2) The powers of the Commission under this section are exercisable by:

(a) the President;

(b) a Presidential Member assigned by the President for the purposes of the matter concerned; or

Appeals from Registrar to Commission

81. (1) Subject to this and any other Act, an appeal lies to the Commission, with the leave of the Commission, against:

(a) the making of any decision, or the doing of any act, by a Registrar in a matter arising under this Act; or

(b) the refusal or failure of a Registrar to make any decision or do any act in a matter arising under this Act.

(2) Where an appeal has been instituted under this section, the Commission may, on such terms and conditions as it considers appropriate, order that the operation of the whole or part of the decision or act concerned be stayed pending the determination of the appeal or until further order of the Commission.

(3) For the purposes of the appeal, the Commission may take evidence.

(4) On the hearing of the appeal, the Commission may do one or more of the following:

(a) confirm, quash or vary the decision or act concerned;

(b) make a decision dealing with the subject-matter of the decision or act concerned;

(c) direct the Registrar whose decision or act is under appeal, or another Registrar, to take further action to deal with the subject-matter of the decision or act in accordance with the directions of the Commission.

(5) The powers of the Commission under this section are exercisable by:

(a) the President;

(b) a Presidential Member assigned by the President for the purposes of the appeal concerned; or

(6) An appeal does not lie to a Full Bench against a decision under this section.

References to Court by Registrar on question of law

82. (1) A Registrar may refer a question of law arising in a matter before the Registrar for the opinion of the Court.

(2) On the determination of the question by the Court, the Registrar shall not give a decision or do anything in the matter that is inconsistent with the opinion of the Court.

Division 4—Staff

Staff

83. (1) The staff of the Industrial Registry, including the Deputy Industrial Registrars, shall be persons appointed or employed under the Public Service Act 1922.

(2) The Industrial Registrar has all the powers of, or exercisable by, a Secretary of a Department of the Australian Public Service under the Public Service Act 1922, so far as those powers relate to the branch of the Australian Public Service comprising the staff referred to in subsection (1), as if that branch were a separate Department of the Australian Public Service.

PART V—INSPECTORS

Inspectors

84. (1) There shall be such inspectors as are necessary from time to time.

(2) The Minister may appoint a person appointed or employed under the Public Service Act 1922 to be an inspector.

(3) Arrangements may be made under section 78 of the Public Service Act 1922 for officers of the Public Service of a State or Territory to exercise the powers and perform the functions of inspectors.

(4) An inspector has such powers and functions in relation to the observance of this Act and awards as are conferred by this Act.

(5) The Minister may, by notice published in the Gazette, give directions specifying the manner in which, and any conditions and qualifications subject to which, powers or functions conferred on inspectors are to be exercised or performed.

(6) An inspector shall comply with directions given under subsection (5).

Identity cards

85. (1) The Minister may issue to an inspector an identity card in a prescribed form.

(2) An inspector shall carry the identity card at all times when exercising powers or performing functions as an inspector.

Powers of inspectors

86. (1) For the purpose of ascertaining whether awards, and the requirements of this Act, are being, or have been, observed, an inspector may, at any time during ordinary working hours or at any other time at which it is necessary to do so for that purpose:

(a) without force, enter:

(i) premises on which the inspector has reasonable cause to believe that work to which an award applies is being or has been performed; or

(ii) a place of business in which the inspector has reasonable cause to believe that there are documents relevant to that purpose; and

(b) on premises or in a place referred to in paragraph (a):

(i) inspect any work, material, machinery, appliance, article or facility;

(ii) as prescribed, take samples of any goods or substances;

(iii) interview any employee;

(iv) require a person having the custody of, or access to, a document relevant to that purpose to produce the document to the inspector within a specified period; and

(v) inspect, and make copies of or take extracts from, a document produced to him or her.

(2) If a person who is required under subparagraph (1) (b) (iv) to produce a document contravenes the requirement, an inspector may, by written notice served on the person, require the person to produce the document at a specified place within a specified period (not being less than 14 days).

(3) Where a document is produced to an inspector under subsection (2), the inspector may:

(a) inspect, and make copies of or take extracts from, the document; and

(b) retain the document for such period as is necessary for the purpose of exercising powers or performing functions as an inspector.

(4) During the period for which an inspector retains a document, the inspector shall permit the person otherwise entitled to possession of the

document, or a person authorised by the person, to inspect, and make copies of or take extracts from, the document at all reasonable times.

(5) If an inspector proposing to enter, or being on, premises is required by the occupier to produce evidence of authority, the inspector is not entitled to enter or remain on the premises without producing to the occupier the inspector’s identity card.

Inspector to investigate matters affecting safety of employees

87. (1) Where, in the opinion of a member of the Commission, a matter concerning the safety of employees or other persons in or about a place of work arises in or in relation to an industrial dispute, the member may request the Secretary to the Department to arrange for an inspector to investigate the matter.

(2) The Secretary to the Department shall direct an inspector to investigate the matter, and the inspector shall, as directed:

(a) immediately investigate the matter; and

(b) report as soon as practicable to the member who made the request.

(3) Section 86 applies in relation to an investigation by an inspector under this section.

(4) A report of an inspector under this section shall be considered by the member of the Commission where it is relevant to the performance of the powers and duties of the member under this Act and, unless there are special circumstances that in the member’s opinion render it undesirable to do so, the member shall make the report public.

Annual report

88. (1) The Secretary to the Department shall, as soon as practicable after the end of each financial year, prepare and provide to the Minister a report on the operation of this Part during that year.

(2) The Minister shall cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after its receipt by the Minister.

PART VI—DISPUTE PREVENTION AND SETTLEMENT

Division 1—Functions of Commission generally

General functions of Commission

89. The functions of the Commission are:

(a) to prevent and settle industrial disputes by conciliation or arbitration; and

(b) such other functions as are conferred on the Commission by this or any other Act.

Commission to take into account the public interest

90. In the performance of its functions, the Commission shall take into account the public interest, and for that purpose shall have regard to:

(a) the objects of this Act; and

(b) the state of the national economy and the likely effects on the national economy of any award or order that the Commission is considering, or is proposing to make, with special reference to likely effects on the level of employment and on inflation.

Commission to encourage agreement on procedures for preventing and settling disputes

91. In dealing with an industrial dispute, the Commission shall, where it appears practicable and appropriate, encourage the parties to agree on procedures for preventing and settling, by discussion and agreement, further disputes between the parties or any of them, with a view to the agreed procedures being included in an award.

Commission to have regard to compliance with disputes procedures

92. Where the parties to an industrial dispute are bound by an award that provides for procedures for preventing or settling industrial disputes between them, the Commission shall, in considering whether or when it will exercise its powers in relation to the industrial dispute, have regard to the extent to which the procedures (if applicable to the industrial dispute) have been complied with by the parties and the circumstances of any compliance or noncompliance with the procedures.

Commission to take account of Racial Discrimination Act and Sex Discrimination Act

93. In the performance of its functions, the Commission shall take account of the principles embodied in the Racial Discrimination Act 1975 and the Sex Discrimination Act 1984 relating to discrimination in relation to employment.

Uniformity in relation to certain conditions of employment

94. In determining an industrial dispute, the Commission shall, subject to section 95, provide, so far as possible and so far as the Commission considers proper, for uniformity throughout an industry carried on by employers in relation to hours of work, holidays and general conditions in the industry.

No automatic flow on of terms of certified agreements

95. The Commission is not empowered to include terms in an award, or make an award under section 112 that includes terms, that are based on the terms of a certified agreement unless the Commission is satisfied that including the terms in the award, or making the award, would not:

(a) be inconsistent with principles established by a Full Bench that apply in relation to the determination of wages and conditions of employment; or

(b) otherwise be contrary to the public interest.

Schemes of apprenticeship

96. In determining an industrial dispute in which the rates of pay or conditions of employment applying to apprentices are in question, the Commission shall take into account any scheme of apprenticeship provided by or under the law of a State or Territory.

Safety, health and welfare of employees

97. In determining an industrial dispute, the Commission shall take into account the provisions of any law of a State or Territory relating to the safety, health and welfare of employees in relation to their employment.

Commission to act quickly

98. The Commission shall perform its functions as quickly as practicable.

Division 2—Powers and procedures of Commission for dealing with industrial disputes

Notification of industrial disputes

99. (1) As soon as an organisation or an employer becomes aware of the existence of an alleged industrial dispute affecting the organisation or its members or affecting the employer, as the case may be, the organisation or employer shall notify the relevant Presidential Member or a Registrar.

(2) A Minister who is aware of the existence of an alleged industrial dispute may notify the relevant Presidential Member or a Registrar

(3) Where a Registrar is notified of an alleged industrial dispute, or a member of the Commission who is not the relevant Presidential Member becomes aware of the existence of an alleged industrial dispute, the Registrar or member shall inform the relevant Presidential Member.

(4) This section does not apply in relation to a dispute in relation to which Division 7 applies.

Disputes to be dealt with by conciliation where possible

100. (1) Where an alleged industrial dispute is notified under section 99 or the relevant Presidential Member otherwise becomes aware of the existence of an alleged industrial dispute, the relevant Presidential Member shall, unless satisfied that it would not assist the prevention or settlement of the alleged industrial dispute, refer it for conciliation by himself or herself or by another member of the Commission.

(2) If the Presidential Member does not refer the alleged industrial dispute for conciliation, the Commission shall deal with the alleged industrial dispute by arbitration.

Findings as to industrial disputes

101. (1) Subject to subsection (2), where a proceeding in relation to an alleged industrial dispute comes before the Commission, it shall, if it considers that the alleged industrial dispute is an industrial dispute:

(a) determine the parties to the industrial dispute and the matters in dispute; and

(b) record its findings;

but the Commission may vary or revoke any of the findings.

(2) Where the Commission constituted in any manner has made findings in relation to an industrial dispute, the Commission (however constituted) may, for the purpose of exercising powers in subsequent proceedings in relation to the same industrial dispute (other than powers on an appeal in relation to the finding), proceed on the basis of the findings or any of them.

(3) A determination or finding of the Commission on a question as to the existence of an industrial dispute is, in all courts and for all purposes, conclusive and binding on all persons affected by the question.

Action to be taken where dispute referred for conciliation

102. (1) Where an industrial dispute is referred for conciliation, a member of the Commission shall do everything that appears to the member to be right and proper to assist the parties to agree on terms for the prevention or settlement of the industrial dispute.

(2) The action that may be taken by a member of the Commission under this section includes:

(a) arranging conferences of the parties or their representatives presided over by the member; and

(b) arranging for the parties or their representatives to confer among themselves at conferences at which the member is not present.

Completion of conciliation proceeding

103. (1) A conciliation proceeding before a member of the Commission shall be regarded as completed when:

(a) the parties have reached agreement for the settlement of the whole of the industrial dispute and all action under section 112 or 115 arising out of the agreement has been taken; or

(b) whether or not the parties have reached agreement for the settlement of part of the industrial dispute:

(i) the member of the Commission is satisfied that there is no likelihood that, within a reasonable period, conciliation, or further conciliation, will result in agreement, or further agreement, by the parties on terms for the settlement of the industrial dispute or any matter in dispute; or

(ii) the parties to the industrial dispute have informed the member that there is no likelihood of agreement, or further agreement,

on matters in dispute and the member does not have a substantial reason to refuse to regard the conciliation proceeding as completed.

(2) Nothing in this Act prevents the exercise of conciliation powers in relation to an industrial dispute merely because arbitration powers have been exercised in relation to the industrial dispute.

Arbitration

104. (1) When a conciliation proceeding before a member of the Commission in relation to an industrial dispute is completed but the industrial dispute has not been fully settled, the Commission shall proceed to deal with the industrial dispute, or the matters remaining in dispute, by arbitration.

(2) Unless the member of the Commission who conducted the conciliation proceeding is competent, having regard to section 105, to exercise arbitration powers in relation to the industrial dispute and proposes to do so, the member shall make a report under subsection (3).

(3) The member shall, for the purpose of enabling arrangements to be made for arbitration in relation to the industrial dispute, report to the relevant Presidential Member or, if the member is a Presidential Member, to the President, as to the matters in dispute, the parties and the extent to which the industrial dispute has been settled.

(4) The member shall not disclose anything said or done in the conciliation proceeding in relation to matters in dispute that remain unsettled.

(5) In an arbitration proceeding under this Act, unless all the parties agree, evidence shall not be given, or statements made, that would disclose anything said or done in a conciliation proceeding under this Act (whether before a member of the Commission or at a conference arranged by a member of the Commission) in relation to matters in dispute that remain unsettled.

Exercise of arbitration powers by member who has exercised conciliation powers

105. (1) Where a member of the Commission has exercised conciliation powers in relation to an industrial dispute, the member shall not exercise, or take part in the exercise of, arbitration powers in relation to the industrial dispute if a party to the arbitration proceeding objects.

(2) The member shall not be taken to have exercised conciliation powers in relation to the industrial dispute merely because:

(a) after having begun to exercise arbitration powers in relation to the industrial dispute, the member exercised conciliation powers;

(b) the member arranged for a conference of the parties or their representatives to be presided over by the member, but the conference did not take place or was not presided over by the member; or

(c) the member arranged for the parties or their representatives to confer among themselves at a conference at which the member was not present.

Certain matters to be dealt with by Full Bench

106. (1) This section applies to matters involving:

(a) the making of provision for, or the alteration of, the standard hours of work in an industry;

(b) the making of provision for, or the alteration of, rates of wages, or the manner in which rates of wages are to be ascertained, on grounds predominantly related to the national economy and without examination of any circumstances pertaining to the work on which, or the industry in which, persons are employed;

(c) the making of provision for, or the alteration of, a minimum wage that is to be payable to adults without regard to the work performed or to the industry in which they are employed; or

(d) the making of provision in relation to, or the alteration of provision in relation to, annual leave with pay or long service leave with pay.

(2) Where:

(a) in the opinion of a Full Bench, a matter before the Full Bench is a matter to which this section applies; or

(b) in the opinion of the President, a matter before the Commission constituted otherwise than as a Full Bench is a matter to which this section applies;

the power of the Commission to make an award, or to certify an agreement under section 115, in relation to the matter is exercisable only by a Full Bench unless the contents of the award or agreement:

(d) are consistent with principles determined by a Full Bench.

(3) The President or a Full Bench may, in relation to the exercise of powers under this section, direct a member of the Commission to provide a report in relation to a specified matter.

(4) The member shall, after making such investigation (if any) as is necessary, provide a report to the President or Full Bench, as the case may be.

Reference of disputes to Full Bench

107. (1) A reference in this section to a part of an industrial dispute includes a reference to:

(a) an industrial dispute so far as it relates to a matter in dispute; or

(b) a question arising in relation to an industrial dispute.

(2) Where a proceeding in relation to an industrial dispute or an alleged industrial dispute is before a member of the Commission, a party to the proceeding or the Minister may apply to the member:

(a) in the case of a proceeding in relation to an alleged industrial dispute—to have the proceeding dealt with by a Full Bench because the subject-matter of the proceeding is of such importance that, in the public interest, the proceeding should be dealt with by a Full Bench; or

(b) in the case of a proceeding by way of conciliation or arbitration—to have the industrial dispute or a part of the industrial dispute dealt with by a Full Bench because the industrial dispute or the part of the industrial dispute is of such importance that, in the public interest, it should be dealt with by a Full Bench.

(3) An application under paragraph (2) (a) may be accompanied by an application under paragraph (2) (b), to be dealt with if the application under paragraph (2) (a) is granted and there is a finding that there is an industrial dispute.

(4) If an application is made under subsection (2) to a member of the Commission other than the President, the member shall refer the application to the President to be dealt with.

(5) The President shall confer with the member about whether the application should be granted.

(6) If the President is of the opinion:

(a) in the case of an application under paragraph (2) (a)—that the subject-matter of the proceeding is of such importance that, in the public interest, the proceeding should be dealt with by a Full Bench; or

(b) in the case of an application under paragraph (2) (b)—that the industrial dispute or the part of the industrial dispute is of such importance that, in the public interest, it should be dealt with by a Full Bench;

the President shall grant the application.

(7) Where the President grants an application under paragraph (2) (a):

(a) the Full Bench shall, if it considers that there is an industrial dispute, record findings under section 101; and

(b) if the application was accompanied by an application under paragraph (2) (b) that was granted—the Full Bench shall, subject to subsection (9), hear and determine the industrial dispute or the part of the industrial dispute.

(8) Where the President grants an application under paragraph (2) (b), the Full Bench shall, subject to subsection (9), hear and determine the industrial dispute or the part of the industrial dispute and, in the hearing, may have regard to any evidence given, and any arguments adduced, in arbitration proceedings in relation to the industrial dispute, or the part of the industrial dispute, before the Full Bench commenced the hearing.

(9) Where the President grants an application under paragraph (2) (b) in relation to an industrial dispute:

(a) the Full Bench may refer a part of the industrial dispute to a member of the Commission to hear and determine; and

(b) the Full Bench shall hear and determine the rest of the industrial dispute.

(10) The President or a Full Bench may, in relation to the exercise of powers under this section, direct a member of the Commission to provide a report in relation to a specified matter.

(11) The member shall, after making such investigation (if any) as is necessary, provide a report to the President or Full Bench, as the case may be.

(12) The President may before a Full Bench has been established for the purpose of hearing and determining, under this section, an industrial dispute or part of an industrial dispute, authorise a member of the Commission to take evidence for the purposes of the hearing and determination, and:

(a) the member has the powers of a person authorised to take evidence under subsection 111 (3); and

(b) the Full Bench shall have regard to the evidence.

President may deal with certain proceedings

108. (1) A reference in this section to a part of an industrial dispute includes a reference to:

(a) an industrial dispute so far as it relates to a matter in dispute; or

(b) a question arising in relation to an industrial dispute.

(2) The President may, whether or not another member of the Commission has begun to deal with a particular proceeding in relation to an alleged industrial dispute or an industrial dispute, decide to deal with the proceeding.

(3) If the President decides to deal with the proceeding, then, unless the President considers that the proceeding does not relate to an industrial dispute:

(a) the President shall make such findings (if any) in relation to the proceeding as are required to be made by section 101 and have not already been made by another member of the Commission; and

(b) the President shall:

(i) if the President is of the opinion that it would assist the settlement of the industrial dispute or a part of the industrial dispute—endeavour to settle the industrial dispute or the part of the industrial dispute by conciliation; and

(ii) if the President is not of that opinion, or has not been able to settle the industrial dispute or a part of the industrial dispute by conciliation:

(a) hear and determine the industrial dispute or the part of the industrial dispute; or

(b) refer the industrial dispute or the part of the industrial dispute to a Full Bench.

(4) If the President refers the industrial dispute or the part of the industrial dispute to a Full Bench, the Full Bench shall hear and determine the industrial dispute or the part of the industrial dispute.

(5) In the hearing of an industrial dispute or a part of an industrial dispute by the President under subsection (3) or by a Full Bench under subsection (4), the President or Full Bench may have regard to any evidence given, and any arguments adduced, in arbitration proceedings in relation to the industrial dispute, or the part of the industrial dispute, before the President or Full Bench commenced to deal with the proceeding concerned.

(6) Where the President has under subsection (3) referred an industrial dispute to a Full Bench:

(a) the Full Bench may refer a part of the industrial dispute to a member of the Commission to hear and determine; and

(b) the Full Bench shall hear and determine the rest of the industrial dispute.

(7) If, before an industrial dispute is dealt with by the President under this section or while an industrial dispute is being dealt with by the President under this section, the parties to the industrial dispute, or any of them, reach agreement on terms for the settlement of all or any of the matters in dispute, the President may refer the agreement to a Full Bench.

(8) The Full Bench shall deal with any request in relation to the agreement under section 112 or 115.

(9) The President or a Full Bench may, in relation to the exercise of powers under this section, direct a member of the Commission to provide a report in relation to a specified matter.

(10) The member shall, after making such investigation (if any) as is necessary, provide a report to the President or Full Bench, as the case may be.

Review on application by Minister

109. (1) The Minister may apply to the President for a review by a Full Bench of:

(a) an award or order made by a member of the Commission; or

(b) a decision of a member of the Commission to certify an agreement under section 115;

where it appears to the Minister that the award, order or agreement is contrary to the public interest.

(2) Where an application is made to the President under subsection (1), the President shall establish a Full Bench to hear and determine the application.

(3) The Full Bench shall, if in its opinion the matter is of such importance that, in the public interest, the award, order or decision should be reviewed, make such review of the award, order or decision as appears to it to be desirable having regard to the matters referred to in the application.

(4) Subsections 45 (4) to (8) (inclusive) apply in relation to a review under this section in the same manner as they apply in relation to an appeal under section 45.

(5) In a review under this section:

(a) the parties to the proceeding in which the award, order or decision was made are parties to the proceeding on the review and are entitled to notice of the hearing; and

(b) the Minister is a party to the proceeding.

(6) Each provision of this Act relating to the hearing and determination of an industrial dispute extends to a review under this section.

(7) Nothing in this section affects any right of appeal or any power of a Full Bench under section 45, and an appeal under that section and a review under this section may, if the Full Bench considers appropriate, be dealt with together.

Procedure of Commission

110. (1) Where the Commission is dealing with an industrial dispute, it shall, in such manner as it considers appropriate, carefully and quickly inquire into and investigate the industrial dispute and all matters affecting the merits, and right settlement, of the industrial dispute.

(2) In the hearing and determination of an industrial dispute or in any other proceedings before the Commission:

(a) the procedure of the Commission is, subject to this Act and the Rules of the Commission, within the discretion Of the Commission;

(b) 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; and

(c) the Commission shall act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms.

(3) The Commission may determine the periods that are reasonably necessary for the fair and adequate presentation of the respective cases of the parties to an industrial dispute or other proceeding and require that the cases be presented within the respective periods.

(4) The Commission may require evidence or argument to be presented in writing, and may decide the matters on which it will hear oral evidence or argument.

Division 3—Particular powers of Commission

Particular powers of Commission

111. (1) Subject to this Act, the Commission may, in relation to an industrial dispute:

(a) take evidence on oath or affirmation;

(b) make an award or order in relation to all or any of the matters in dispute, including:

(i) a provisional award or order;

(ii) an interim award or order; or

(iii) on application under section 112, an award that is expressed to be made by consent;

(d) give a direction in the course of, or for the purposes of, the hearing or determination of the industrial dispute;

(e) make an award or order including, or vary an award or order so as to include, a provision to the effect that engaging in conduct in breach of a specified term of the award or order shall be taken to constitute the commission of a separate breach of the term on each day on which the conduct continues;

(f) set aside, revoke or vary an award, order, direction, determination or other decision of the Commission;

(g) dismiss a matter or part of a matter, or refrain from further hearing or from determining the industrial dispute or part of the industrial dispute, if it appears:

(i) that the industrial dispute or part is trivial;

(ii) that the industrial dispute or part has been dealt with, is being dealt with or is proper to be dealt with by a State industrial authority;

(iii) that further proceedings are not necessary or desirable in the public interest;

(iv) that a party to the industrial dispute is engaging in conduct that, in the Commission’s opinion, is hindering the settlement of the industrial dispute or another industrial dispute; or

(v) that a party to the industrial dispute:

(a) has breached an award or order of the Commission; or

(b) has contravened a direction or recommendation of the Commission to stop industrial action;

(h) hear and determine the industrial dispute in the absence of a party who has been summoned or served with notice to appear;

(j) sit at any place;

(k) conduct its proceedings, or any part of its proceedings, in private;

(m) adjourn to any time and place;

(n) refer any matter to an expert and accept the expert’s report as evidence;

(o) direct parties to be joined or struck out;

(p) allow the amendment, on such terms as it considers appropriate, of any application or other document relating to any proceeding;

(q) correct, amend or waive any error, defect or irregularity, whether in substance or form;

(r) extend any prescribed time;

(s) summon before it the parties to the industrial dispute, the witnesses, and any other persons whose presence the Commission considers would help in the hearing or determination of the industrial dispute, and compel the production before it of documents and other things for the purpose of reference to such entries or matters only as relate to the industrial dispute; and

(t) generally give all such directions, and do all such things, as are necessary or expedient for the speedy and just hearing and determination of the industrial dispute.

(2) Unless the context otherwise requires, a reference in this section to an industrial dispute includes a reference to any other proceeding before the Commission.

(3) The Commission may, in writing, authorise a person (including a member of the Commission) to take evidence on its behalf, with such limitations (if any) as the Commission directs, in relation to an industrial dispute, and the person has all the powers of the Commission to secure the attendance of witnesses, the production of documents and things and the taking of evidence on oath or affirmation.

Consent awards

112. (1) If the parties to an industrial dispute or any of them reach agreement on terms for the settlement of all or any of the matters in dispute, they may apply to the Commission for the making of an award giving effect to their agreement.

(2) The Commission shall not make an award giving effect to their agreement unless it is of the opinion that it is in the public interest that the award should be made.

(3) An award made on application under this section is binding on:

(a) each of the parties making the application;

(b) all members of an organisation that is a party making the application; and

(c) an employer who is a successor, assignee or transmittee (whether immediate or not) to or of the business or part of the business of a party making the application, including a corporation that has acquired or taken over the business or part of the business of the party.

Power to set aside or vary awards

113. (1) The Commission may set aside an award or any of the terms of an award.

(2) The Commission may, and shall if it considers it desirable for the purpose of removing ambiguity or uncertainty, vary an award.

(3) The Commission may, on application by an organisation or person bound by an award, vary a term of the award referring by name to an organisation or person bound by the award:

(a) to reflect a change in the name of the organisation or person; or

(b) where:

(i) the registration of the organisation has been cancelled; or

(ii) the organisation or person has ceased to exist;

to omit the reference to its name.

(4) This Act applies in relation to applications, and proceedings in relation to applications, for the setting aside or variation of awards in the same manner, as far as possible, as it applies in relation to industrial disputes and proceedings in relation to industrial disputes, and for that purpose such an application shall be treated as if it were the notification of an industrial dispute.

Power to make further awards in settlement of industrial dispute etc.

114. The fact that an award or order has been made for the settlement of an industrial dispute, or that an award or order made for the settlement of an industrial dispute is in force, does not prevent:

(a) a further award or order being made for the settlement of the industrial dispute; or

(b) an award or order being made for the settlement of a further industrial dispute between all or any of the parties to the earlier award or order, and whether or not the subject-matter of the further industrial dispute is the same (in whole or part) as the subject-matter of the earlier industrial dispute.

Certified agreements

115. (1) If the parties to an industrial dispute or any of them agree on terms for the settlement of all or any of the matters in dispute, they may make a memorandum of the terms agreed on.

(2) The memorandum of agreement shall specify the period for which the agreement is to continue in force.

(3) The parties to the agreement may apply to the Commission for the certification of the agreement.

(4) If the Commission is of the opinion that the agreement is in the interests of the parties immediately concerned, the Commission shall, subject to subsections (6), (7) and (8), certify the agreement unless it is of the opinion that it would be contrary to the public interest to certify the agreement.

(5) Certification of the agreement shall not be taken to be contrary to the public interest merely because the agreement is inconsistent with general Full Bench principles.

(6) If, in the opinion of the President, the agreement is inconsistent with general Full Bench principles, the powers of the Commission under this section are exercisable only by a Full Bench.

(7) The Commission is not empowered to certify the agreement if it includes terms based on the terms of another certified agreement unless the Commission is satisfied that the inclusion of the terms in the agreement is justified in the particular circumstances of the case.

(8) If it appears to the Commission that the agreement wholly or substantially regulates all the matters pertaining to the relationship between:

(a) the employers who are parties to the agreement; and

(b) the employees whose employment is dealt with in the agreement;

the Commission shall not certify the agreement unless it includes provisions setting out procedures for preventing and settling, by discussion and agreement, further disputes between the parties.

(9) Subsection (4) shall not be taken to require the Commission to certify the agreement if it is of the opinion that:

(a) the terms are not in settlement of an industrial dispute; or

(b) any of the terms is a term that the Commission does not have power to include in an award.

(10) In this section:

“general Full Bench principles” means principles established by a Full Bench that apply in relation to the determination of wages and conditions of employment, other than principles that apply in relation to the certification of agreements under this section.

Operation of certified agreements

116. (1) While a certified agreement is in force:

(a) the terms of the agreement prevail over the terms of an award or an order of the Commission binding on the parties to the agreement that deals with the same matters;

(b) a term of the agreement shall not be set aside or varied by the parties;

(d) the agreement may only be varied under subsection 113 (2) for the purpose of:

(i) removing ambiguity or uncertainty;

(ii) including, omitting or varying a bans clause; or

(iii) including, omitting or varying a term (however expressed) that authorises an employer to stand-down an employee; and

(e) the Commission shall not exercise arbitration powers in relation to the matters dealt with in the agreement.

(2) The agreement may, by express provision, exclude or limit the operation of subparagraphs (1) (d) (ii) and (iii).

(3) A certified agreement comes into force when it is certified and, in spite of section 148, remains in force until:

(a) the end of the period specified in the agreement under subsection 115 (2);

(b) the Commission sets aside the agreement under subsection 117 (3);

(i) all the remaining parties to the agreement are organisations of employees; or

(ii) all the remaining parties to the agreement are employers or organisations of employers; or

(d) the agreement is terminated under subsection 117 (9);

whichever happens first.

(4) An award constituted by a certified agreement is binding on:

(a) each of the parties to the agreement;

(b) all members of an organisation that is a party; and

(c) an employer who is a successor, assignee or transmittee (whether immediate or not) to or of the business or part of the business of a party, including a corporation that has acquired or taken over the business or part of the business of the party.

(5) In subsection (4):

“party”, in relation to a certified agreement, does not include:

(a) a party in relation to whom a declaration has been made under subsection 117 (6); or

(b) a party who is no longer bound by the certified agreement because of a declaration made by the Commission under subsection 117 (9).

Certified agreements may be varied, set aside, terminated etc.

117. (1) At any time while a certified agreement is in force, the Minister may apply to the President for a review by a Full Bench of the operation of the agreement.

(2) Where an application is made to the President under subsection (1), the President shall establish a Full Bench to hear and determine the application.

(3) If the Full Bench finds that the continued operation of the certified agreement is contrary to the public interest, the Full Bench may, by order, set aside or vary the agreement.

(4) The Full Bench shall not set aside or vary the certified agreement under subsection (3) without giving the parties to the agreement an opportunity to be heard.

(5) Where a party to a certified agreement engages in industrial action in relation to a matter dealt with in the agreement, another party who is affected by the industrial action may apply to the Commission for a declaration that the party is no longer bound by the agreement.

(6) The Commission may, on application under subsection (5) by a party to a certified agreement, by order, declare that the party is no longer bound by the agreement if the Commission is satisfied that the making of the declaration is in the public interest.

(7) A party to a certified agreement may, with the consent of all the relevant parties, give the Commission written notice stating that the party does not want to remain bound by the agreement.

(8) All the parties to a certified agreement may jointly give the Commission written notice stating that they want the agreement to be terminated.

(9) Where a notice is given to the Commission under subsection (7) or (8), the Commission may, if it is satisfied that it would be in the public interest for the party to be no longer bound or for the certified agreement to be terminated, as the case may be, by order, make a declaration to that effect.

(10) In this section:

“relevant party”, in relation to a certified agreement, means:

(a) in relation to a party to the agreement that is an employer or an organisation of employers—a party that is an organisation of employees; or

(b) in relation to a party to the agreement that is an organisation of employees—a party that is an employer or an organisation of employers.

Demarcation disputes

118. (1) The powers of the Commission in relation to demarcation disputes are exercisable only by a Presidential Member or a Full Bench.

(2) The Commission may seek advice from an appropriate peak council about the timing of the exercise of any of the Commission’s powers in relation to a demarcation dispute.

(3) Without limiting the powers of the Commission in relation to demarcation disputes, the Commission may, for the purpose of preventing or settling a demarcation dispute, but subject to subsection 202 (3), make one or more of the following orders:

(a) an order that an organisation of employees shall have the right, to the exclusion of another organisation or 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 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 shall have that right;

(c) an order that an organisation of employees shall not 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.

(4) In considering whether to make an order under subsection (3), the Commission shall have regard to any agreement of which the Commission becomes aware that deals with the right of an organisation of employees to represent under this Act the industrial interests of a particular class or group of employees.

(5) An order made under subsection (3) may be of general application or expressed to be subject to specified conditions or limitations.

(6) Where the Commission makes an order in relation to a demarcation dispute it shall, unless satisfied that no alteration of the rules of any organisation concerned is necessary, refer the matter to a designated Presidential Member.

(7) Where a matter is referred to a Presidential Member under subsection (6), the Presidential Member shall, after giving each organisation concerned an opportunity, as prescribed, to be heard, determine such alterations (if any) of the rules of any organisation concerned as are, in the Presidential Member’s opinion, necessary to reflect the order of the Commission.

(8) An alteration of the rules of an organisation determined under subsection (7) takes effect on the day on which the determination is made.

Compulsory conferences

119. (1) For the purpose of the performance of a function, or the exercise of a power, of the Commission in relation to an industrial dispute, a member of the Commission may, of the member’s own motion or on application made by a party to, or intervener in, the industrial dispute, direct a person to attend, at a specified time and place, a conference to be presided over by a member of the Commission or another person nominated by the President.

(2) A direction may be given to any person whose presence at the conference the member of the Commission considers would help in the prevention or settlement of the industrial dispute.

(3) In determining the persons to whom directions are to be given, the member of the Commission shall have regard to the persons having the highest degree of authority to negotiate, for the prevention or settlement of the industrial dispute, on behalf of the parties to the industrial dispute.

(4) A direction may be given orally or by signed instrument by, or by telegraph, telex, facsimile service or other similar means of communication from:

(a) a member of the Commission; or

(b) a Registrar at the request of a member of the Commission.

(5) The conference shall be held in private except to the extent that the person presiding over the conference directs that it be held in public.

Relief not limited to claim

120. In making an award or order, the Commission is not restricted to the specific relief claimed by the parties to the industrial dispute concerned, or to the demands made by the parties in the course of the industrial dispute, but may include in the award or order anything which the Commission considers necessary or expedient for the purpose of preventing or settling the industrial dispute or preventing further industrial disputes.

Power to override certain laws affecting public sector employment

121. (1) In relation to an industrial dispute involving public sector employment, the Commission may, where it considers it proper to do so, make an award or order that is not, or in its opinion may not be, consistent with a relevant law of the Commonwealth or of an internal Territory.

(2) In this section:

“enactment” means an ordinance made under the Northern Territory (Administration) Act 1910 and continued in force by the Northern Territory (Self- Government) Act 1978;

“relevant law” means a law of the Commonwealth or an internal Territory relating to matters pertaining to the relationship between employers and employees in public sector employment, other than:

(a) the Commonwealth Employees’ Rehabilitation and Compensation Act 1988, the Long Service Leave (Commonwealth Employees) Act 1976 or the Superannuation Act 1976; or

(b) a prescribed Act or enactment, or prescribed provisions of an Act or enactment.

Power to grant preference to members of organisations

122. (1) The Commission may, by an award, or by an order made on the application of an organisation or person bound by an award, direct that preference shall be given, in relation to particular matters, in such manner

and subject to such conditions as are specified in the award or order, to particular organisations or members of organisations.

(2) Whenever, in the opinion of the Commission, it is necessary:

(a) for the prevention or settlement of an industrial dispute;

(b) for ensuring that effect will be given to the purposes and objectives of an award;

(d) for the welfare of society;

to direct that preference shall be given to members of organisations as provided by subsection (1), the Commission shall give the direction.

(3) Where the Commission has, under subsection (1), directed, by an award or order, that preference shall be given to members of an organisation of employees, an employer bound by the award or order is not required, because of the award or order, to give preference to members of the organisation over a person in relation to whom a certificate under section 267 is in force.

Power to provide special rates of wages

123. Where the Commission, by an award, prescribes a minimum rate of wages, the Commission may also provide:

(a) for the payment of wages at a lower rate to employees who are unable to earn a wage at the minimum rate; and

(b) that the lower rate shall not be paid to an employee unless a particular person or authority has certified that the employee is unable to earn a wage at the minimum rate.

Limitation on powers of Commission relating to payments in relation to periods of industrial action

124. (1) Subject to this section, the Commission is not empowered to deal with a claim for the making of a payment to employees in relation to a period, whether before or after the making of the claim, or before or after the commencement of this section, during which those employees engaged, or engage, in industrial action.

(2) Subsection (1) does not prevent the Commission dealing with a claim for the making of a payment to employees in relation to a period before the making of the claim but after the commencement of this section during which those employees were engaged in industrial action where the Commission is satisfied that the industrial action was justified by a concern on the part of the employees:

(a) that was reasonable;

(b) that was about their health or safety; and

(3) Where the Commission is satisfied as to the matter mentioned in subsection (2) in relation to some, but not all, of the employees, the Commission is only empowered to deal with so much of the claim as relates to the employees in relation to whom the Commission is satisfied.

Power to include bans clauses

125. The power of the Commission:

(a) to include a bans clause in an award; or

(b) to omit or vary a bans clause;

is exercisable only by a Presidential Member or a Full Bench.

Stand-down applications

126. (1) Where an employer or organisation bound by an award makes an application (in this section called the “stand-down application”) to the Commission for the award to be varied by the insertion or variation of a term (however expressed) that authorises an employer to stand-down an employee in particular circumstances, the Commission shall hear and determine the application as quickly as is appropriate having regard to all the circumstances.

(2) The employer or organisation who makes a stand-down application may, when the stand-down application is made or at any later time before the stand-down application is determined, apply to the President for the stand-down application to be heard and determined by a Full Bench.

(3) Where an application is made to the President under subsection (2), the President shall establish a Full Bench to hear and determine the stand-down application.

(4) Where:

(a) a stand-down application has been partly heard by the Commission constituted otherwise than as a Full Bench; and

(b) the President establishes a Full Bench for the purpose of hearing the stand-down application;

the Full Bench may, in the hearing, have regard to any evidence given, and any arguments adduced, in the proceeding before the Commission constituted otherwise than as a Full Bench.

(5) Where industrial action is threatened, impending or probable, the Commission may exercise its power under subsection (1) by including in an award a provision authorising an employer to stand-down employees who engage in the industrial action.

(6) Subsection (5) shall not be taken to limit any other power of the Commission.

Orders in relation to industrial action involving public sector employment

127. (1) Where it appears to the Commission that industrial action by persons engaged in public sector employment is happening, or is threatened, impending or probable, in relation to an industrial dispute, the Commission may:

(a) make such orders as it considers necessary or desirable:

(i) to stop or prevent the industrial action; or

(ii) to prevent further industrial action; and

(b) make such other orders as it considers necessary or desirable because of the industrial action.

(2) The powers conferred on the Commission by subsection (1) are in addition to, and not in derogation of, the powers conferred on the Commission by the rest of this Act.

State authorities may be restrained from dealing with disputes

128. (1) If it appears to a Full Bench that a State industrial authority is dealing or is about to deal with:

(a) an industrial dispute;

(b) a matter provided for in an award or an order of the Commission; or

the Commission may make an order restraining the State industrial authority from dealing with the industrial dispute or matter.

(2) The State industrial authority shall, in accordance with the order, cease dealing or not deal, as the case may be, with the industrial dispute or matter.

(3) An order, award, decision or determination of the State industrial authority made in contravention of the order of the Full Bench is, to the extent of the contravention, void.

Joint sessions of Commission

129. Where:

(a) the President considers that a question is common to 2 or more proceedings before the Commission; and

(b) the Commission is not constituted by the same person or persons for the purposes of each proceeding;

the President may direct that the Commission constituted by all the persons who constitute the Commission for the purposes of the proceedings may take evidence or hear argument, or take evidence and hear argument, as to the question for the purposes of both or all of the proceedings.

Reference of industrial dispute to local industrial board for report

130. (1) The Commission may refer an industrial dispute to a local industrial board for investigation and report, and may at any time revoke the reference.

(2) On the report of the local industrial board, the Commission may, with or without hearing further evidence or argument, determine the dispute and make an award or order.

(3) In this section:

“local industrial board” means:

(a) a State industrial authority willing to act; or

(b) a body constituted as prescribed, or as directed by the Commission, and consisting of:

(i) a convenor; and

(ii) equal numbers of representatives of employers and representatives of employees;

appointed by the Commission.

Boards of reference

131. (1) The Commission may, by an award, or an order made on the application of an organisation or person bound by an award:

(a) appoint, or give power to appoint, for the purposes of the award, a board of reference consisting of a person or 2 or more persons; and

(b) assign to the board of reference the function of allowing, approving, fixing, determining or dealing with, in the manner and subject to the conditions specified in the award or order, a matter or thing that, under the award, may from time to time be required to be allowed, approved, fixed, determined or dealt with.

(2) The board of reference may consist of or include a Commissioner.

Discussions about conciliation and arbitration processes

132. The Commission may invite the parties to an industrial dispute in relation to which an award or order has been made to take part in discussions about the industrial dispute, with a view to improving the processes of conciliation and arbitration.

Industry consultative councils

133. (1) Where a Presidential Member who is a member of a panel is invited by participants in an industry allocated to the panel to assist in the operations of a consultative council for the industry, the Presidential Member may, if the President consents:

(a) chair meetings of the council;

(b) take part in the discussions of the council; or

(c) nominate another member of the panel to chair meetings of the body or to take part in the discussions of the council.

(2) The President shall not consent unless the President is satisfied that the consultative council is properly representative of organisations and associations of employers and organisations of employees in the industry.

Power of inspection

134. (1) A member of the Commission, or an authorised person, may at any time during working hours:

(a) enter prescribed premises;

(b) inspect or view any work, material, machinery, appliance, article, document or other thing on the prescribed premises; and

(2) A member of the Commission may exercise powers under subsection (1) only for the purpose of, or in relation to, the exercise of another power, or the performance of a function, conferred by this Act.

(3) A member of the Commission, or a Registrar, may, in writing, for the purpose of, or in relation to, the exercise of another power, or the performance of a function, conferred on the Commission by this Act, authorise another person to exercise powers under subsection (1).

(4) An authorised person may exercise powers under subsection (1) only to the extent and for the purposes specified in the authority.

(5) In this section:

“authorised person” means a person authorised under subsection (3);

“prescribed premises” means premises on which or in relation to which:

(a) an industry is carried on;

(b) work is being or has been done or commenced;

(d) a matter or thing is taking or has taken place under, or in connection with, an application or order made under section 135 or 136;

(e) documents are kept that contain information relevant to an application, or to the operation of an order, made under section 135 or 136; or

(f) an award or an order of the Commission has been made.

Division 4—Ballots ordered by Commission

Commission may order secret ballot

135. (1) Where:

(a) an organisation is concerned in an industrial dispute with which the Commission or another tribunal acting under a law of the Commonwealth is empowered to deal (whether or not proceedings

in relation to the dispute are before the Commission or other tribunal); and

(b) the Commission considers that the prevention or settlement of the industrial dispute might be helped by finding out the attitudes of the members, or the members of a section or class of the members, of the organisation or a branch of the organisation in relation to a matter;

the Commission may order that a vote of the members be taken by secret ballot (with or without provision for absent voting), in accordance with directions given by the Commission, for the purpose of finding out their attitudes to the matter.

(2) Where it appears to the Commission:

(a) that industrial action is being taken or the taking of industrial action is threatened, impending or probable; and

(b) that finding out the attitudes of the members, or the members of a section or class of the members, of the organisation concerned or a branch of the organisation, in relation to the matter, might help to stop or prevent the industrial action, or might help the settlement of the matters giving rise to the industrial action;

(3) The powers of the Commission to make an order under subsection (1) or (2), and to revoke such an order, are exercisable only by a Presidential Member or a Full Bench.

Application by members of organisation for secret ballot

136. (1) Where:

(a) the members, or the members of a section or class of the members, of an organisation or branch of an organisation are directed or requested by the organisation or branch to engage in industrial action; and

(b) the members directed or requested are, or include, members (in this section called the “relevant affected members”) who are employed by a particular employer at a particular place of work;

application may be made to the Commission, by at least the prescribed number of relevant affected members, for an order under subsection (2).

(2) Subject to this section, the Commission shall order that a vote of the relevant affected members be taken by secret ballot (with or without provision for absent voting), in accordance with directions given by the Commission, for the purpose of finding out whether or not those members support the industrial action.

(3) If the Commission considers that the application should be refused because:

(a) finding out the attitudes of the relevant affected members would not help:

(i) to stop or prevent the industrial action; or

(ii) to settle the matters giving rise to the industrial action;

(b) the industrial action has stopped or is about to stop; or

the Commission shall:

(d) if the Commission is constituted by the President or a Full Bench—refuse the application; or

(e) if the Commission is not constituted by the President or a Full Bench—refer the application to the President.

(4) If the application is referred to the President, the Commission constituted by the President shall deal with the application.

(5) The powers of the Commission to make an order under subsection (2), and to revoke an order under that subsection, are exercisable only by a Presidential Member or a Full Bench.

(6) Where 2 or more applications are made to the Commission under subsection (1) in relation to a particular place of work of a group of employees of a particular employer, the President may assign the applications to one Presidential Member or a Full Bench.

(7) Where, in considering an application under subsection (1), it appears to the Commission that, in all the circumstances, it would be appropriate to make an order for a secret ballot under subsection 135 (1) or (2) rather than under subsection (2) of this section, the Commission may act accordingly.

(8) Where:

(a) the Commission has made an order for a secret ballot under subsection (2) of this section or under subsection 135 (1) or (2); and

(b) before the vote is taken, the Commission forms the view that the secret ballot should not be proceeded with because:

(i) the industrial dispute has been, or is about to be, settled; or

(ii) the industrial action has stopped, is about to stop or is not likely to happen;

the Commission shall revoke the order.

(9) For the purposes of this section, a direction or request to members of an organisation or branch of an organisation that is given or made by or on behalf of:

(a) the committee of management of the organisation or branch;

(b) an officer, employee or agent of the organisation or branch acting in that capacity;

(i) the rules of the organisation or branch;

(ii) the committee of management of the organisation or branch; or

(iii) an officer, employee or agent of the organisation or branch acting in that capacity; or

(d) a member of the organisation or branch, who performs the function of dealing with an employer on behalf of the member and other members of the organisation or branch, acting in that capacity;

shall be taken to be a direction or request by the organisation or branch, as the case may be.

(10) In this section:

“place of work”, in relation to a group of employees of an employer, includes any place at which the employees included in the group are required to report (whether in person, by telephone or by any other form of communication) for the purpose of being allocated work by the employer or for any other purpose connected with the carrying on of the business of the employer;

“prescribed number”, in relation to members of an organisation or branch of an organisation employed by a particular employer at a particular place of work, means:

(a) if there are less than 80 members of the organisation employed by the employer at the place of work—4;

(b) if there are not less than 80, but not more than 5,000, members of the organisation or branch employed by the employer at the place of work—5% of the number of members so employed; or

(c) if there are more than 5,000 members of the organisation or branch employed by the employer at the place of work—250.

Scope of directions for secret ballots

137. (1) Directions given by the Commission under subsection 135 (1) or (2) or 136 (2) shall provide for all matters relating to the ballot concerned, including the following matters:

(a) the questions to be put to the vote;

(b) the eligibility of persons to vote;

(2) Before giving a direction relating to the conduct of the ballot, the Commission shall consult with the Industrial Registrar or, if the ballot is to be conducted by the Australian Electoral Commission, with the Electoral Commissioner.

Conduct of ballot

138. (1) Where, under section 135 or 136, the Commission orders the holding of a secret ballot, the Commission shall, by order:

(a) direct the organisation concerned to make arrangements for the conduct of the ballot by a person approved by the Industrial Registrar; or

(b) direct the Industrial Registrar to make arrangements for the conduct of the ballot;

and may give any further directions that it considers necessary for ensuring the secrecy of votes and otherwise for the purposes of the conduct of the ballot or the communication of the result to the Commission.

(2) A direction shall not be given under paragraph (1) (a) if the order for the holding of the secret ballot concerned was made under subsection 136 (2).

(3) Where a direction is given under paragraph (1) (a), the Commonwealth is liable to pay to the organisation the reasonable costs of the conduct of the ballot concerned as assessed by a Registrar.

(4) Where a direction is given under paragraph (1) (b), the Industrial Registrar shall conduct the ballot concerned, or make arrangements for its conduct, in accordance with the direction.

(5) Where the result of a ballot conducted under an order under section 135 or 136 is communicated to the Commission, the Commission shall cause the Industrial Registrar to inform each of the following persons, by written notice, of the result:

(a) the persons who were eligible to vote in the ballot;

(b) the organisation to which those persons belonged, and the employers by whom those persons were employed, when those persons became eligible to vote in the ballot.

(6) Where the Commission forms the view that the results of a ballot conducted under an order under subsection 136 (2) show that the majority of the members of an organisation, or a branch of an organisation, who recorded a valid vote in the ballot were not in favour of engaging in the industrial action concerned, the Commission shall cause the Industrial Registrar to include in each notice issued under subsection (5) in relation to the ballot a statement of the view formed by the Commission.

Commission to have regard to result of ballot

139. In any conciliation or arbitration proceeding before the Commission in relation to a matter in relation to which the attitudes of persons have been expressed in a ballot conducted under an order under section 135 or 136, the Commission shall have regard to the result of the ballot.

Certain members not required to obey directions of organisation

140. (1) Where a notice under subsection 138 (5) in relation to a ballot that is issued to a member of an organisation, or a branch of an organisation, includes a statement that the Commission has formed the view that the results of the ballot show that the majority of the members of the organisation or branch who recorded a valid vote in the ballot were not in favour of engaging in the industrial action concerned, then, in spite of any rule or practice of the organisation or the branch, the member is not required to obey any direction or request given or made by the organisation or branch in relation to engaging in, or supporting in any way, the industrial action.

(2) For the purposes of subsection (1), a direction or request to members of an organisation or branch of an organisation that is given or made by or on behalf of:

(a) the committee of management of the organisation or branch;

(b) an officer, employee or agent of the organisation or branch acting in that capacity;

(i) the rules of the organisation or branch;

(ii) the committee of management of the organisation or branch; or

(iii) an officer, employee or agent of the organisation or branch acting in that capacity; or

(d) a member of the organisation or branch, who performs the function of dealing with an employer on behalf of the member and other members of the organisation or branch, acting in that capacity;

shall be taken to be a direction or request by the organisation or branch, as the case may be.

Division 5—Common rules

Common rules

141. (1) Where the Commission is dealing or has dealt with an industrial dispute, the Commission may, if it appears to be necessary or expedient for the purpose of:

(a) preventing or settling the industrial dispute; or

(b) preventing further industrial disputes;

declare that any term of an award shall, subject to such conditions, exceptions and limitations as are specified in the declaration, be a common rule in a Territory for an industry in relation to which the industrial dispute arose.

(2) Where the Commission is dealing or has dealt with an industrial dispute involving public sector employment, the Commission may, if it appears to be necessary or expedient for the purpose of:

(a) preventing or settling the industrial dispute; or

(b) preventing further industrial disputes;

declare that any term of an award shall, subject to such conditions, exceptions and limitations as are specified in the declaration, be a common rule for the whole or a specified class of public sector employment.

(3) The declaration of a common rule under subsection (2) does not have effect in relation to a class of public sector employment prescribed for the purposes of this section.

(4) Before a common rule is declared under subsection (1) or (2), the Commission shall:

(a) publish, as prescribed, a notice:

(i) specifying the matter in relation to which it is proposed to declare a common rule; and

(ii) inviting any organisation or person interested and wanting to be heard to appear before the Commission as specified in the notice; and

(b) hear all interested organisations and persons appearing.

Variation of common rules

142. (1) Subject to this section, where the Commission varies a term of an award that is a common rule in a Territory for an industry, the variation is, by force of this subsection, a common rule in the Territory for the industry with effect from the date of effect of the variation.

(2) Subject to this section, where the Commission varies a term of an award that is a common rule for the whole or a class of public sector employment, the variation is, by force of this subsection, a common rule for the whole or that class of public sector employment (other than any class of public sector employment prescribed under subsection 141 (3)) with effect from the date of effect of the variation.

(3) Before the Commission varies a term of a kind referred to in subsection (1) or (2), a Registrar shall, as prescribed, give notice of the place where, and the time when, it is proposed to hear the matter involving the term.

(4) Where the Commission varies a term of a kind referred to in subsection (1) or (2), a Registrar shall immediately publish, as prescribed, a notice inviting any organisation or person interested and wanting to be heard to lodge notice of objection to the variation binding the organisation or person.

(5) If a notice of objection in relation to a variation is lodged by an organisation or person under subsection (4), the Commission shall hear the objection and may declare that the variation is not binding on the organisation or person.

(6) Where the Commission makes a declaration under subsection (5), a Registrar shall give notice of the declaration as prescribed.

(7) A variation that is a common rule under this section:

(a) is not enforceable before the end of 28 days after the date of effect of the variation; and

(b) if a notice of objection in relation to the variation is lodged by an organisation or person under subsection (4)—is not enforceable against the organisation or person before the hearing of the objection is finally disposed of.

Division 6—Awards of Commission

Making and publication of awards etc.

143. (1) Where the Commission makes a decision or determination that, in the Commission’s opinion, is an award or an order affecting an award, the Commission shall promptly:

(a) reduce the decision or determination to writing that:

(i) expresses it to be an award;

(ii) is signed by at least one member of the Commission; and

(iii) shows the day on which it is signed; and

(b) give to a Registrar:

(i) a copy of the decision or determination; and

(ii) a list specifying each party who appeared at the hearing of the proceeding concerned.

(2) Where the Commission makes a decision or determination:

(a) that, in the Commission’s opinion, is not an award; but

(b) in relation to which either of the following subparagraphs applies:

(i) the decision or determination is a decision or determination from which an appeal may be made to a Full Bench;

(ii) the decision or determination is, in the Commission’s opinion, otherwise so significant that it should be made available in writing;

the Commission shall promptly:

(i) is signed by at least one member of the Commission; and

(ii) shows the day on which it is signed; and

(d) give to a Registrar:

(i) a copy of the decision or determination; and

(ii) a list specifying each party who appeared at the hearing of the proceeding concerned.

(3) A Registrar who receives a copy of a decision or determination under subsection (1) or (2) shall promptly:

(a) provide a copy of:

(i) the decision or determination; and

(ii) any written reasons received by the Registrar for the decision or determination;

to each party shown on the list given to the Registrar under paragraph (1) (b) or (2) (d); and

(b) ensure that copies of the decision or determination, and of any reasons referred to in paragraph (a), are available for inspection at each registry.

(4) The Industrial Registrar shall ensure that all decisions and determinations of the Commission referred to in subsections (1) and (2), and any reasons referred to in paragraph (3) (a), are published as soon as practicable.

(5) If a member of the Commission ceases to be a member after a decision or determination has been made by the Commission constituted by the member but before the decision or determination has been reduced to writing or before it has been signed by the member, a Registrar shall reduce the decision or determination to writing, sign it and seal it with the seal of the Commission, and the decision or determination has effect as if it had been signed by the member of the Commission.

Form of awards

144. An award shall be framed so as best to express the decision of the Commission and to avoid unnecessary technicalities.

Date of awards

145. The date of an award shall be:

(a) if the award is a certified agreement—the day on which the agreement was certified under section 115; or

(b) in any other case—the day on which the award was signed under subsection 143 (1).

Commencement of awards

146. (1) An award shall be expressed to come into force on a specified day.

(2) Unless the Commission is satisfied that there are exceptional circumstances, the day specified in an award for the purposes of subsection (1) shall not be earlier than the date of the award.

Term of awards

147. (1) An award shall specify the period for which the award is to continue in force.

(2) In determining the period to be specified under subsection (1), the Commission shall have regard to:

(a) the wishes of the parties to the industrial dispute concerned as to the period for which the award should continue in force; and

(b) the desirability of stability in industrial relations.

Continuation of awards

148. (1) Subject to section 113 and any order of the Commission, an award dealing with particular matters continues in force until a new award is made dealing with the same matters.

(2) The inclusion in an award of a provision relating to:

(a) long service leave with pay;

(b) sick leave with pay; or

is not prevented merely because the provision is so expressed as not to be capable of operating, or of operating fully, during the period specified in the award as the period for which the award is to continue in force.

(3) Where, under subsection (1), an award has continued in force after the end of the period specified in the award as the period for which the award is to continue in force, an award made by the Commission for the settlement of a further industrial dispute between the parties may be expressed to operate from a day not earlier than the day on which the industrial dispute arose.

Persons bound by awards

149. Subject to any order of the Commission, an award determining an industrial dispute is binding on:

(a) all parties to the industrial dispute who appeared or were represented before the Commission;

(b) all parties to the industrial dispute who were summoned or notified (either personally or as prescribed) to appear as parties to the industrial dispute (whether or not they appeared);

(c) all parties who, having been notified (either personally or as prescribed) of the industrial dispute and of the fact that they were alleged to be parties to the industrial dispute, did not, within the time prescribed, satisfy the Commission that they were not parties to the industrial dispute;

(d) any successor, assignee or transmittee (whether immediate or not) to or of the business or part of the business of an employer who was a party to the industrial dispute, including a corporation that has acquired or taken over the business or part of the business of the employer;

(e) all organisations and persons on whom the award is binding as a common rule; and

(f) all members of organisations bound by the award.

Awards of Commission are final

150. (1) Subject to this Act, an award (including an award made on appeal):

(a) is final and conclusive;

(b) shall not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(2) An award is not invalid because it was made by the Commission constituted otherwise than as provided by this Act.

Registrar to review operation of awards

151. (1) Where a Registrar is of the opinion that an award that is in force might not have any continuing operation, or any substantial continuing operation, the Registrar shall draw the award to the attention of:

(a) the parties to the award; and

(b) a member of the panel to which the industry concerned has been assigned or, if the industry concerned has not been assigned to a panel, the President.

(2) Where an award is drawn to the attention of a member of the Commission under subsection (1), the member shall invite the parties to the award to take part in discussions about the award with a view to:

(a) cancelling the award; and

(b) if necessary, varying another appropriate award to include any operative provisions of the cancelled award in the other award.

(3) The Industrial Registrar shall ensure that each award in force is examined by a Registrar for the purposes of this section not later than 5 years after the award was made or was last examined by a Registrar for those purposes.

(4) The Industrial Registrar shall cause each award in force immediately before the commencement of this section to be examined by a Registrar for the purposes of this section at least once during the period of 5 years after the commencement.

Awards to prevail over State laws, awards etc.

152. Where a State law, or an order, award, decision or determination of a State industrial authority, is inconsistent with, or deals with a matter dealt with in, an award, the latter prevails and the former, to the extent of the inconsistency or in relation to the matter dealt with, is invalid.

Validity of State orders, awards etc.

153. (1) A person interested may apply to the Court for a declaration that a State law dealing with an industrial matter, or an order, award, decision or determination of a State industrial authority, is invalid under section 152.

(2) The applicant shall give 14 days’ notice of the application to the Attorney-General of the State concerned, who shall have the right to appear on the hearing of the application.

(3) The Court shall hear and determine the application and make such declaration as it considers appropriate.

Reprints of awards as varied

154. A document purporting to be a copy of a reprint of an award as varied, and purporting to have been printed by the Government Printer, is in all courts evidence of the award as varied.

Expressions used in awards

155. Unless the contrary intention appears in an award, an expression used in the award has the same meaning as it has in an Act by virtue of the Acts Interpretation Act 1901 or as it has in this Act.

Division 7—Disputes relating to boycotts

Application of Division

156. This Division applies in relation to a dispute:

(a) that relates to a boycott or a threatened, impending or probable boycott; and

(b) in relation to which either of the following subparagraphs applies:

(i) the dispute relates, or may relate, to work done or to be done under an award;

(ii) the dispute involves an organisation of employees or a member or officer of such an organisation.

Notification of disputes

157. (1) Where a person applies to the Court under section 80 of the Trade Practices Act for an injunction restraining another person from engaging in boycott conduct in relation to which there is a dispute in relation to which this Division applies, either person may notify the President or a Registrar of the dispute.

(2) The Minister may notify the President or a Registrar of a dispute in relation to which this Division applies or may apply.

(3) Where a dispute is notified to a Registrar under this section, the Registrar shall inform the President.

Powers of Commission

158. (1) Subject to subsection (2), where:

(a) a person notifies the President or a Registrar under subsection 157 (1) of a dispute in relation to which this Division applies;

(b) the Minister notifies the President or a Registrar under subsection 157 (2) of a dispute in relation to which this Division applies or may apply; or

the Commission is empowered to settle the dispute by conciliation.

(2) If:

(a) the dispute relates to a boycott, or a threatened, impending or probable boycott, in relation to which there are proceedings pending before the Court; and

(b) the Minister administering Part IV of the Trade Practices Act, or the Trade Practices Commission, is a party to the proceedings;

the Commission is not empowered to settle the dispute under subsection (1) unless that Minister or the Trade Practices Commission, as the case may be, consents, by written notice given to the Commission, to the Commission exercising its powers under that subsection in relation to the dispute.

Exercise of powers

159. Where the Commission is empowered under subsection 158 (1) to settle by conciliation a dispute in relation to which this Division applies, the President shall refer it to a Presidential Member for conciliation.

Parties

160. (1) The parties to a proceeding before the Commission in relation to a dispute in relation to which this Division applies are:

(a) any organisation of employees in relation to the employment of any of whose members the dispute has arisen;

(b) employers of such employees;

(d) if the dispute relates to conduct in relation to the supply of goods or services to, or the acquisition of goods or services from, a person (in subsection (2) called an “affected person”) and the person is not already a party—that person;

(e) any Minister who notifies the Commission that he or she wishes to become a party; and

(f) such other persons as the Presidential Member concerned, by order, specifies.

(2) A Registrar shall give notice of the proceeding to such persons as the Presidential Member directs and, in any event, to every person who is an affected person and every other person who is a party to the proceeding under paragraph (1) (e) or (f).

(3) Subsection (1) does not affect the operation of sections 43 and 44.

Application of other provisions of Act

161. Subject to this Division, the provisions of this Act relating to an industrial dispute (other than the provisions that relate to arbitration powers or to the making of awards or certifying of agreements) apply in relation to a proceeding before the Commission in relation to a dispute in relation to which this Division applies as if:

(a) a reference to an industrial dispute were a reference to the dispute in relation to which this Division applies;

(b) a reference to the parties to an industrial dispute were a reference to the parties to the proceeding before the Commission; and

Trade Practices Act not affected

162. This Division does not affect the operation of the Trade Practices Act.

Interpretation

163. Unless the contrary intention appears, expressions used in or in relation to this Division that are used in the Trade Practices Act have, in this Act, the same respective meanings as those expressions have in the Trade Practices Act.

Division 8—Exclusive jurisdiction in relation to certain proceedings

Certain actions not to lie under other laws in relation to boycott conduct

164. An action under a law of a State or Territory does not lie against a trade union, or an officer, member or employee of a trade union, in relation to boycott conduct of the trade union or of the officer, member or employee acting in that capacity.

Certain actions not to lie under other laws in relation to certain industrial action involving public sector employment

165. Where an order under section 127 relates to industrial action by persons engaged in public sector employment falling within paragraph (a) or (b) of the definition of “public sector employment” in subsection 4 (1), an action under a law of a State or Territory does not lie against an organisation, or an officer, member or employee of an organisation, in relation to conduct of the organisation, or of the officer, member or employee acting in that capacity, that is in breach of the order.

Certain actions not to lie under other laws in relation to breaches of bans clauses

166. An action under a law of a State or Territory does not lie against an organisation, or an officer, member or employee of an organisation, in relation to conduct of the organisation, or of the officer, member or employee acting in that capacity, that is in breach of a bans clause of an award.

Division not to apply in relation to certain proceedings

167. This Division does not apply in relation to:

(a) a proceeding for a contravention of an award, order or direction of a State industrial authority; or

(b) a prosecution for an offence.

Division 9—Port Conciliators and Co-ordinating Committees

Appointment of Port Conciliators

168. (1) Where there have been included, in an award or order of the Commission in relation to waterside workers, procedures for preventing or settling, by discussion and agreement, disputes between the parties to the award or any of them as to industrial matters, the Commission may appoint persons to be Port Conciliators with the function of assisting the parties to the award to implement the procedures effectively.

(2) Subject to the Remuneration Tribunal Act 1973, a Port Conciliator shall be paid:

(a) such remuneration as is determined by the Remuneration Tribunal; and

(b) such allowances as are prescribed.

(3) The Commission may at any time terminate an appointment made under this section.

(4) Subject to this section, a Port Conciliator holds office on such terms and conditions as the Commission determines.

Federal Ports Co-ordinating Committee

169. (1) There is established by this section a committee by the name of the Federal Ports Co-ordinating Committee.

(2) The Committee shall consist of persons who, except for a member co-opted under subsection (4), shall be appointed:

(a) by a person authorised by the Minister to make appointments for the purpose of this section; and

(b) in accordance with nominations made as prescribed.

(3) A member of the Committee shall hold office as prescribed.

(4) The Committee may, at any meeting, co-opt a person to be a member of the Committee for the purpose of the consideration by the Committee of a particular matter.

(5) A member of the Committee, including a member co-opted under subsection (4), is not entitled to remuneration or allowances.

(6) The function of the Committee is to encourage agreement between waterside workers and waterside employers with a view to ensuring the effective conduct of stevedoring operations in Australia.

Port Co-ordinating Committees

170. (1) The Minister may establish committees, each to be known as a Port Co-ordinating Committee, in relation to ports at which stevedoring operations are conducted.

(2) A Committee shall consist of persons who, except for a member co-opted under subsection (4), shall be appointed:

(a) by a person authorised by the Minister to make appointments for the purpose of this section; and

(b) in accordance with nominations made as prescribed.

(3) A member of a Committee shall hold office as prescribed.

(4) A Committee may, at any meeting, co-opt a person to be a member of the Committee for the purpose of the consideration by the Committee of a particular matter.

(5) A member of a Committee, including a member co-opted under subsection (4), is not entitled to remuneration or allowances.

(6) The function of a Port Co-ordinating Committee established in relation to a port is to assist the Federal Ports Co-ordinating Committee in the performance in relation to the port of the function of the Federal Ports Co-ordinating Committee under subsection 169 (6).

PART VII—CO-OPERATION WITH THE STATES

Co-operation with States by President

171. The President shall, with a view to encouraging co-operation between the members of the Commission and the members of State industrial authorities, and the co-ordination of the several industrial relations systems in Australia, invite the heads of State industrial authorities to meet with the President regularly to exchange information and discuss matters of mutual concern.

Co-operation with States by Industrial Registrar

172. The Industrial Registrar shall, with a view to encouraging co-operation between the Registrars and the registrars of State industrial authorities, and the co-ordination of the several industrial relations systems in Australia, invite the principal registrars of State industrial authorities to meet with the Industrial Registrar regularly to exchange information and discuss matters of mutual concern.

Member of Commission may exercise powers under prescribed State laws

173. (1) Where, under a prescribed law of a State, the head of a State industrial authority of that State requests the President to nominate a member of the Commission to deal with:

(a) a particular dispute or claim with which the State industrial authority is empowered to deal; or

(b) a particular threatened dispute or claim with which the State industrial authority would be empowered to deal;

the President may nominate a member of the Commission to deal with the dispute or claim.

(2) Where, under a request made under a prescribed law of a State, a member of the Commission is nominated by the President under subsection

(1) to deal with a particular dispute or claim, the member may exercise such powers and shall perform such functions, for the purpose of dealing with the dispute or claim, as are, by the prescribed law, conferred on a member of the Commission who is so nominated.

(3) A determination made by a member of the Commission in the exercise of powers or the performance of functions mentioned in subsection (2):

(a) shall, for the purposes of this Act, be taken not to have been made by a member of the Commission under this Act; and

(b) shall, for the purposes of sections 152 and 153, be taken to be a decision or determination of a State industrial authority.

Reference of dispute to State authority for determination

174. (1) The President may refer an industrial dispute to a State authority to be investigated and dealt with under this Act:

(a) by conciliation;

(b) by arbitration; or

(2) The President may revoke the reference at any time before a determination is made by the State authority in settlement of the industrial dispute.

(3) The President may, in relation to the exercise of powers under subsection (1) or (2), direct a member of the Commission to provide a report in relation to a specified matter.

(4) The member shall, after making such investigation (if any) as is necessary, provide the report to the President.

(5) For the purposes of investigating and dealing with the industrial dispute, the State authority may exercise any powers of the Commission under this Act that are exercisable by a Commissioner.

(6) A determination made by the State authority in settlement of the industrial dispute:

(a) shall, for the purposes of this Act (other than section 109), be taken to be an award made under this Act by a member of the Commission, but section 45 applies in relation to the determination as if paragraph 45 (7) (c) were omitted; and

(b) shall, for the purposes of sections 152 and 153, be taken not to be an order, award, decision or determination of a State industrial authority.

(7) Section 149 applies in relation to a determination made by the State authority in settlement of the industrial dispute as if a reference to the Commission were a reference to the State authority.

(8) Sections 299, 302, 303, 354 and 355 apply in relation to the exercise of powers under this section by the State authority as if a reference to:

(a) a member of the Commission; or

(b) the Commission;

were a reference to the State authority, and as if the State authority exercised those powers as a member of the Commission.

(9) The State authority has, in the exercise of powers under this section, the same protection and immunity as, under section 41, a member of the Commission has in the performance of functions as a member of the Commission.

(10) In this section:

“State authority” means a member of a State industrial authority nominated by the head of the State industrial authority or, if another office is prescribed in relation to the State industrial authority, the holder of the office.

Joint proceedings

175. (1) Where a member of the Commission proposes to exercise powers of the Commission that are exercisable by the member in relation to an industrial dispute (other than powers conferred by section 107), the member:

(a) if the President directs that this section applies in relation to the exercise of the powers in relation to the dispute—shall exercise the powers; and

(b) in any other case—may exercise the powers;

in the presence of a prescribed State industrial authority and:

(d) witnesses summoned by the authority in relation to the particular dispute.

(2) Without limiting paragraph 110 (2) (b), where under subsection (1) a member of the Commission is exercising powers in relation to an industrial dispute in the presence of a prescribed State industrial authority, the member may have regard to evidence given to the authority in the presence of the member and the parties to the industrial dispute.

(3) The President may, in relation to the exercise of powers under subsection (1), direct a member of the Commission to provide a report in relation to a specified matter.

(4) The member shall, after making such investigation (if any) as is necessary, provide the report to the President.

(5) This section does not prevent a member of the Commission from exercising powers in relation to an industrial dispute in the presence of a person other than the prescribed State industrial authority or a person referred to in paragraph (1) (c) or (d).

Conference with State authorities

176. (1) Where it appears to the President to be desirable that a conference should be held with a State industrial authority, the President may, if the State industrial authority is willing, confer with the State industrial authority, or arrange for a Deputy President to confer with the State industrial authority, with a view to securing co-ordination between any awards or orders made or to be made under this Act and any orders, awards, decisions or determinations made or given or to be made or given by the State industrial authority.

(2) The President may confer with a State industrial authority in relation to the exercise, or the proposed exercise, under section 175 of powers by a member of the Commission.

Industrial matters affecting the oil industry in New South Wales

177. (1) In this section:

“oil industry industrial matter” means an industrial matter pertaining to the relationship between a prescribed employer and prescribed employees of the prescribed employer;

“prescribed employee” means an employee who:

(a) is, or is eligible to become, a member of the oil industry branch of the industrial union registered under the Industrial Arbitration Act, 1940 of New South Wales as the Australian Workers Union; and

(b) is employed by a prescribed employer;

“prescribed employer” means:

(a) Australian Lubricating Oil Refinery Limited; or

(b) Caltex Refining Co. Pty. Limited.

(2) This Act (other than this section) does not apply in relation to the relationship between a prescribed employer and prescribed employees of the prescribed employer and, in particular:

(a) does not apply in relation to an oil industry industrial matter;

(b) does not apply in relation to an industrial dispute so far as the industrial dispute is a dispute, or a situation that is likely to give rise to a dispute, as to an oil industry industrial matter; and

(c) does not apply in relation to industrial action so far as the industrial action relates to, or affects, the relationship between a prescribed employer and prescribed employees of the prescribed employer.

(3) It is hereby declared to be the intention of the Parliament that this Act shall not exclude the concurrent operation of a prescribed Act of New South Wales so far as that Act makes provision in relation to oil industry industrial matters.

(4) The President may, from time to time, designate a Presidential Member for the purposes of this section.

(5) A Presidential Member designated under subsection (4) shall perform any functions or duties, and may exercise any powers, that are conferred or expressed to be conferred on a Presidential Member by a prescribed Act of New South Wales.

PART VIII—COMPLIANCE

Division 1—Penalties for contravention of awards and orders

Imposition and recovery of penalties

178. (1) Subject to section 182, where an organisation or person bound by an award or an order of the Commission breaches a term of the award or order, a penalty may be imposed by the Court or, except in the case of a breach of a bans clause, by a court of competent jurisdiction.

(2) Subject to subsection (3), where:

(a) 2 or more breaches of a term of an award or order are committed by the same organisation or person; and

(b) the breaches arose out of a course of conduct by the organisation or person;

the breaches shall, for the purposes of this section, be taken to constitute a single breach of the term.

(3) Subsection (2) does not apply in relation to:

(a) a breach of a term of an award or order that is committed by an organisation or person after a court has imposed a penalty on the organisation or person for an earlier breach of the term; or

(b) a breach of a term of an award or order that is taken to have been committed by a person under a provision included in an award or order under paragraph 111 (1) (e).

(4) The maximum penalty that may be imposed under subsection (1) for a breach of a term of an award or order is:

(a) where the penalty is imposed by the Court:

(i) if the breach is taken to have been committed under a provision included in an award or order under paragraph 111 (1) (e)—$500; and

(ii) in any other case—$1,000; and

(b) where the penalty is not imposed by the Court—$500.

(5) A penalty for a breach of a term of an award or order may be sued for and recovered by:

(a) an inspector;

(b) a party to the award or order;

(d) an organisation that is affected, or any of whose members are affected, by the breach; or

(e) an officer of an organisation that is affected, or any of whose members are affected, by the breach where the officer is authorised, under the rules of the organisation, to sue on behalf of the organisation.

(6) Where, in a proceeding against an employer under this section, it appears to the court concerned that an employee of the employer has not been paid an amount to which the employee is entitled under an award or order, the court may order the employer to pay to the employee the amount of the underpayment.

(7) An order shall not be made under subsection (6) in relation to so much of an underpayment as relates to any period more than 6 years before the commencement of the proceeding.

(8) A proceeding under this section in relation to a breach of a term of an award or order shall be commenced not later than 6 years after the commission of the breach.

(9) In this section:

“court of competent jurisdiction” means:

(a) a District, County or Local Court; or

(b) a magistrate’s court.

Recovery of wages etc.

179. An employee entitled to the benefit of an award or order may, not later than 6 years after a payment becomes due to the employee under the award or order, sue for the amount of the payment in the Court or in any other court of competent jurisdiction.

Unclaimed moneys

180. (1) Where:

(a) an employee has left the employment of an employer without having been paid an amount to which the employee is entitled under an award or order; and

(b) the employer is unable to pay the amount to the former employee because the employer does not know the former employee’s whereabouts;

the employer may pay the amount to the Commonwealth.

(2) The Commonwealth holds the amount in trust for the former employee.

(3) Payment of the amount to the Commonwealth is a sufficient discharge to the employer, as against the former employee, for the amount paid.

Division 2—Breaches of bans clauses

Conduct in breach of bans clause

181. (1) Where an organisation or person bound by an award that includes a bans clause is of the opinion that there is, or is likely to be, a

breach of the clause, the organisation or person may notify a Registrar of the alleged breach or likely breach.

(2) For the purposes of this Division, a Presidential Member may exercise any powers of the Commission (including conciliation powers), other than powers that are exercisable only by a Full Bench.

(3) Where notice has been given under subsection (1), a Presidential Member shall inquire into the matters alleged in the notice.

(4) If, after inquiry into the matters alleged in the notice, a Presidential Member is of the opinion:

(a) that there has been a breach of the bans clause; and

(b) that either of the following subparagraphs applies:

(i) the breach is continuing;

(ii) a further breach is likely to happen;

the Presidential Member shall:

(d) endeavour to prevent the further breach, and, if the further breach happens, to bring about an early end to the further breach;

as the case may be.

(5) If, after inquiry into the matters alleged in the notice, a Presidential Member is of the opinion:

(a) that there has not been a breach of the bans clause; but

(b) that such a breach is likely to happen;

the Presidential Member shall endeavour to prevent the breach, and, if the breach happens, to bring about an early end to the breach.

(6) If a breach of the bans clause is continuing in spite of the Presidential Member having taken such action in relation to the breach as was, in the opinion of the Presidential Member, appropriate to bring about an early end to the breach, the Presidential Member shall make and sign a record to that effect.

Certificate required for enforcement of bans clause

182. A proceeding may only be instituted under section 178 in relation to a breach of a bans clause if a certificate has been issued under this Division in relation to the breach.

Certificate where settlement action fails

183. (1) Where a record is made under subsection 181 (6) in relation to a breach of a bans clause, a party to the proceeding in which the record was made may apply to the Commission for the issue by a Presidential Member of a certificate under subsection (2) in relation to the breach.

(2) A Presidential Member shall issue a certificate under this subsection authorising the party to bring a proceeding under section 178 in relation to the breach unless the Presidential Member is satisfied:

(a) that the breach has ended; or

(b) that the matters that gave rise to the breach will be settled promptly or the breach is otherwise about to end.

Certificate for breach after settlement action

184. (1) Where:

(a) a Presidential Member takes action to give effect to subsection 181 (4) or (5) in relation to a breach, or likely breach, of a bans clause;

(b) the breach ends or the likely breach does not happen;

(d) the subsequent breach arose out of a matter that is the same as a matter out of which the earlier breach arose or was likely to arise, as the case may be;

a party to the proceeding in which the action was taken by the Presidential Member may apply to the Commission for the issue by a Presidential Member of a certificate under subsection (2) in relation to the subsequent breach.

(2) A Presidential Member shall issue a certificate under this subsection authorising the party to bring a proceeding under section 178 in relation to the subsequent breach unless the Presidential Member is satisfied that the matters that gave rise to the breach will be settled promptly or that the breach is otherwise about to end.

Certificate for breach before settlement action

185. (1) Where:

(a) a Presidential Member takes action to give effect to subsection 181 (4) in relation to a breach of a bans clause; and

(b) the breach ends;

(2) If, after inquiry, a Presidential Member:

(a) is satisfied that the breach happened and has ended; and

(b) is of the opinion that the issue of a certificate under this subsection in relation to the breach would not be undesirable having regard to the circumstances in which the breach ended or the terms of any settlement of the matters that gave rise to the breach;

the Presidential Member may issue a certificate under this subsection authorising the party to bring a proceeding under section 178 in relation to the breach.

Certificate where settlement action not taken

186. (1) Where:

(a) an organisation or person bound by an award that includes a bans clause is of the opinion that there has been a breach of the clause that has ended; and

(b) either of the following subparagraphs applies:

(i) notification was not given under subsection 181 (1) in relation to the breach;

(ii) notification was given under subsection 181 (1) in relation to the breach, but action was not taken under section 181 in relation to the breach;

the organisation or person may apply to the Commission for the issue by a Presidential Member of a certificate under subsection (2) in relation to the breach.

(2) If, after inquiry, a Presidential Member:

(a) is satisfied that the breach happened and has ended; and

the Presidential Member may issue a certificate under this subsection authorising the organisation or person to bring a proceeding under section 178 in relation to the breach.

Division 3—Cancellation and suspension of awards and orders

Cancellation and suspension of awards and orders

187. (1) An organisation, a person interested or the Minister may apply to the President, and a member of the Commission or a Registrar may refer a matter to the President, for action by a Full Bench under this section.

(2) Where an application is made to the President under subsection (1), the President shall establish a Full Bench to hear and determine the application.

(3) Where a matter is referred to the President under subsection (1), the President may establish a Full Bench to hear and determine the matter.

(4) If it appears to the Full Bench:

(a) that an organisation has contravened this Act or an award or an order of the Commission;

(b) that a substantial number of the members of an organisation refuse to accept employment either at all or in accordance with existing awards and orders; or

the Full Bench may, subject to such conditions as it considers appropriate, cancel, or suspend for such period as it considers appropriate, all or any of the terms of an award or an order of the Commission.

(5) The Full Bench may also make such other orders as it considers appropriate in relation to the operation of:

(a) if the Full Bench cancels or suspends the award or order on a ground referred to in paragraph (4) (a) or (b)—any other award or order to which the organisation is a party; or

(b) in any other case—any other award or order that applies in relation to the employment of:

(i) members of an organisation that is a party to the cancelled or suspended award or order; or

(ii) persons eligible to be members of such an organisation.

(6) The cancellation or suspension of all or any of the terms of an award or order may be expressed to apply only in relation to:

(a) a particular organisation or person bound by the award or order;

(b) a particular branch of an organisation;

(d) a particular locality.

PART IX—REGISTERED ORGANISATIONS

Division 1—Registration

Associations capable of applying for registration

188. (1) Any of the following associations may apply for registration as an organisation:

(a) an association of which some or all of the members are employers who are capable of being engaged in an industrial dispute and the other members (if any) are:

(i) officers of the association;

(ii) persons (other than employees) who carry on business; or

(iii) persons who, when admitted to membership, were employers and who have not resigned and whose membership has not been terminated;

(b) an association of which some or all of the members are employees who are capable of being engaged in an industrial dispute and the other members (if any) are:

(i) officers of the association; or

(ii) persons specified in Schedule 3.

(2) Subsection (1) does not apply in relation to an association that has members referred to in subparagraph (1) (a) (ii) or (iii) or (b) (ii) unless the association is effectively representative of the members who are employers or employees, as the case may be.

Criteria for registration

189. (1) A designated Presidential Member shall grant an application for registration made by an association that, under section 188, may apply for registration as an organisation if, and only if:

(a) the association:

(i) is a genuine association of a kind referred to in section 188; and

(ii) is an association for furthering or protecting the interests of its members;

(b) in the case of an association of employers:

(i) the members who are employers have, in the aggregate, throughout the 6 months before the application, employed on an average taken per month at least 1,000 employees; or

(ii) the designated Presidential Member is satisfied that special circumstances exist justifying the association’s registration;

(i) the association has at least 1,000 members who are employees; or

(ii) the designated Presidential Member is satisfied that special circumstances exist justifying the association’s registration;

(d) in the case of an association of employees:

(i) the association is an industry-based association; or

(ii) the designated Presidential Member is satisfied that special circumstances exist justifying the association’s registration;

(e) the rules of the association make provision as required by this Act to be made by the rules of organisations;

(f) the association does not have the same name as that of an organisation or a name that is so similar to the name of an organisation as to be likely to cause confusion;

(g) a majority of the members present at a general meeting of the association, or an absolute majority of the committee of management of the association, have passed, under the rules of the association, a resolution in favour of registration of the association as an organisation;

(h) the registration of the association would further the objects of this Act; and

(j) there is no organisation to which the members of the association might conveniently belong.

(2) Paragraph (1) (d) does not apply in relation to:

(a) an association proposed to be registered under a proposed amalgamation under Division 7 of this Part or Part 3 of Schedule 4; or

(b) an association the previous registration of which as an organisation under a law of the Commonwealth has been cancelled under such a law.

(3) In this section:

“business” means a business, trade, manufacture, undertaking or calling of employers;

“industry-based association” means an association of employees whose eligibility rules, so far as they relate to the eligibility of employees for membership, restrict eligibility for membership to persons who are employees in relation to the same kind of business.

Applicant for registration may change its name or alter its rules

190. (1) A designated Presidential Member may, on the application of an association applying to be registered as an organisation, grant leave to the association, on such terms and conditions as the Presidential Member considers appropriate, to change its name or to alter its rules:

(a) to enable it to comply with this Act; or

(b) to remove a ground of objection taken by an objector under the regulations or by the Presidential Member.

(2) An association granted leave under subsection (1) may change its name, or alter its rules, even though the application for registration is pending.

(3) Rules of an association as altered in accordance with leave granted under subsection (1) are binding on the members of the association:

(a) in spite of anything in the other rules of the association; and

(b) subject to any further alterations lawfully made.

Registration

191. (1) When a Presidential Member grants an application by an association for registration as an organisation, the Industrial Registrar shall immediately enter, in the register kept under paragraph 63 (1) (a), the name and eligibility rules of the association, and the date of the entry.

(2) An association shall be taken to be registered under this Act when the Industrial Registrar enters the name and eligibility rules of the association in the register under subsection (1).

(3) On registration, an association becomes an organisation.

(4) The Industrial Registrar shall issue to each organisation registered under this Act a certificate of registration in the prescribed form.

(5) The certificate shall, until proof of cancellation, be conclusive evidence of the registration of the organisation specified in the certificate.

(6) The Industrial Registrar may, as prescribed, issue to an organisation a copy of, or a certificate replacing, the certificate of registration issued under subsection (4) or that certificate as amended under section 206.

Incorporation

192. An organisation:

(a) is a body corporate;

(b) has perpetual succession;

(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;

(d) shall have a common seal; and

(e) may sue or be sued in its registered name.

Designated Presidential Member to review registration of small organisations

193. (1) A designated Presidential Member is empowered to consider, in relation to a small organisation, whether special circumstances exist that justify the continued registration of the organisation in the public interest.

(2) The power conferred by subsection (1):

(a) shall be exercised, in relation to each organisation that is a small organisation at the beginning of the relevant period, as provided by subsection (3); and

(b) subject to subsection (5), may be exercised, after the end of the relevant period, whenever a designated Presidential Member considers appropriate.

(3) Where an organisation is a small organisation at the beginning of the relevant period, a designated Presidential Member shall:

(a) start to consider the matters mentioned in subsection (1) in relation to the organisation during the relevant period; and

(b) finish considering those matters as soon as practicable.

(4) A designated Presidential Member is not required to comply with subsection (3) in relation to an organisation if, when the Presidential Member proposes to start considering the matters mentioned in subsection (1), the organisation is no longer a small organisation.

(5) The power conferred by subsection (1) shall not be exercised in relation to a particular organisation more than once in any period of 3 years.

(6) Where, on exercising the power conferred by subsection (1), a Presidential Member is not satisfied that special circumstances exist that justify the continued registration of a small organisation in the public interest, the Presidential Member shall cancel the registration of the organisation.

(7) In this section:

“relevant period” means the period beginning 3 years after the commencement of this section and ending 4 years after that commencement;

“small organisation” means an organisation of employees that has fewer than 1,000 members who are employees.

Division 2—Rules of organisations

Organisations to have rules

194. (1) An organisation shall have rules that make provision as required by this Act.

(2) A rule of an organisation making provision required by this Act to be made may be mandatory or directory.

Rules of organisations

195. (1) The rules of an organisation:

(a) shall specify the purposes for which the organisation is formed and the conditions of eligibility for membership, and may specify the industry in relation to which it is formed;

(b) shall provide for:

(i) the powers and duties of the committees of the organisation and its branches, and the powers and duties of holders of offices in the organisation and its branches;

(ii) the manner of summoning meetings of members of the organisation and its branches, and meetings of the committees of the organisation and its branches;

(iii) the removal of holders of offices in the organisation and its branches;

(iv) the control of committees of the organisation and its branches respectively by the members of the organisation and branches;

(v) the manner in which documents may be executed by or on behalf of the organisation;

(vi) the manner of notifying the Commission of industrial disputes;

(vii) the times when, and the terms on which, persons become or cease (otherwise than by resignation) to be members;

(viii) the resignation of members under section 264;

(ix) the manner in which the property of the organisation is to be controlled and its funds invested;

(x) the yearly or other more frequent audit of the accounts;

(xi) the conditions under which funds may be spent;

(xii) the keeping of a register of the members, arranged, where there are branches of the organisation, according to branches; and

(xiii) the manner in which its rules may be altered;

(c) may provide for the removal from office of a person elected to an office in the organisation only where the person has been found guilty, under the rules of the organisation, of:

(i) misappropriation of the funds of the organisation;

(ii) a substantial breach of the rules of the organisation; or

(iii) gross misbehaviour or gross neglect of duty;

or has ceased, under the rules of the organisation, to be eligible to hold the office; and

(d) shall require the organisation to inform applicants for membership, in writing, of:

(i) the financial obligations arising from membership; and

(ii) the circumstances, and the manner, in which a member may resign from the organisation.

(2) The rules of an organisation of employers shall also provide that, within 14 days after:

(a) the business, or part of the business, of a member of the organisation is assigned or transferred to a person who is not a member of the organisation; or

(b) such a person succeeds to the business, or part of the business, of a member of the organisation;

the member is required to notify the organisation of the assignment, transfer or succession.

(3) The rules of an organisation may also provide for any other matter.

(4) In this section:

“committee”, in relation to an organisation or branch of an organisation, means a collective body of the organisation or branch that has powers of the kind mentioned in paragraph (b) of the definition of “office” in subsection 4 (1).

General requirements for rules

196. The rules of an organisation:

(a) shall not be contrary to, or fail to make a provision required by, this Act or an award, or otherwise be contrary to law;

(b) shall not be such as to prevent or hinder members of the organisation from:

(i) observing the law or the provisions of an award or an order of the Commission; or

(ii) entering into written agreements under an award or an order of the Commission; and

(c) shall not impose on applicants for membership, or members, of the organisation, conditions, obligations or restrictions that, having regard to the objects of this Act and the purposes of the registration of organisations under this Act, are oppressive, unreasonable or unjust.

Rules to provide for elections for offices

197. (1) The rules of an organisation:

(a) shall provide for the election of the holder of each office in the organisation by:

(i) a direct voting system; or

(ii) a collegiate electoral system that, in the case of a full-time office, is a one-tier collegiate electoral system;

(b) shall provide for the conduct of every such election (including the acceptance or rejection of nominations) by a returning officer who is not the holder of any office in, or an employee of, the organisation or a branch, section or division of the organisation;

(c) shall provide that, if the returning officer conducting an election finds a nomination to be defective, the returning officer shall, before rejecting the nomination, notify the person concerned of the defect and, where practicable, give the person the opportunity of remedying the defect within such period as is applicable under the rules, which shall, where practicable, be not less than 7 days after the person is notified;

(d) shall make provision for:

(i) the manner in which persons may become candidates for election;

(ii) the duties of returning officers; and

(iii) the declaration of the result of an election;

(e) shall provide that, where a ballot is required, it shall be a secret ballot, and shall make provision for:

(i) absent voting;

(ii) the conduct of the ballot; and

(iii) the appointment, conduct and duties of scrutineers to represent the candidates at the ballot; and

(f) shall be such as to ensure, as far as practicable, that no irregularities can occur in relation to an election.

(2) Without limiting section 196, the rules of an organisation relating to elections may provide for compulsory voting.

(3) A reference in this section to the rules of an organisation includes a reference to the rules of a branch of the organisation.

(4) The reference in paragraph (1) (c) to a nomination being defective does not include a reference to a nomination of a person that is defective because the person is not qualified to hold the office to which the nomination relates.

Rules to provide for elections by secret postal ballot

198. (1) Where the rules of an organisation provide for election for an office to be by a direct voting system, the rules shall also provide that, where a ballot is required for such an election, it shall be a secret postal ballot.

(2) An organisation may lodge in the Industrial Registry 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 of the kind referred to in subsection (1) by a secret ballot other than a postal ballot.

(3) If the Industrial Registrar is satisfied, on application by an organisation under subsection (2):

(a) that the proposed alterations of the rules:

(i) comply with and are not contrary to this Act (other than subsection (1)) and awards;

(ii) are not otherwise contrary to law; and

(iii) have been decided on under the rules of the organisation; and

(b) that the conduct of a ballot under the rules of the organisation as proposed to be altered:

(i) is likely to result in a fuller participation by members of the organisation in the ballot than would result from a postal ballot; and

(ii) will afford to members entitled to vote an adequate opportunity of voting without intimidation;

the Industrial Registrar may grant to the organisation an exemption from subsection (1).

(4) Proposed alterations of the rules of an 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 subsection (3) remains in force until revoked under subsection (6).

(6) The Industrial Registrar may revoke an exemption granted to an organisation under subsection (3):

(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:

(i) that the rules of the organisation provide for the conduct of elections of the kind referred to in subsection (1) by a secret ballot other than a postal ballot; or

(ii) of a matter referred to in paragraph (3) (b);

and the Industrial Registrar has given the organisation an opportunity, as prescribed, to show cause why the exemption should not be revoked.

(7) Where the Industrial Registrar revokes an exemption granted to an organisation on the ground specified in paragraph (6) (b), the Industrial Registrar may, by instrument, after giving the organisation an opportunity, as prescribed, 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 an organisation determined under subsection (7) takes effect on the date of the instrument.

(9) Subsection 81 (1) does not apply in relation to a decision of the Industrial Registrar to grant an exemption under subsection (3).

(10) This section applies in relation to elections for offices in branches of organisations as if references to an organisation were references to a branch of an organisation.

Rules to provide for terms of office

199. (1) The rules of an organisation:

(a) shall, subject to paragraph (b) and subsection (3), provide terms of office for officers in the organisation of no longer than 4 years without re-election; and

(b) may provide that, where a person elected to a full-time office will attain retirement age within 12 months after the end of the term for which the person is elected, the person may hold the office, without being re-elected, until attaining retirement age.

(2) Where the rules of an organisation provide as mentioned in paragraph (1) (b), the rules shall provide that where a candidate duly nominated for election to a full-time office is a person who, if elected, will hold that office in the circumstances mentioned in that paragraph, the ballot papers for the election shall indicate the maximum term for which, if elected, the person may hold office.

(3) The rules of an organisation, or a branch of an organisation, may provide that a particular term of office is extended for a specified period, where the extension is for the purpose of synchronising elections for offices in the organisation or branch, as the case may be.

(4) Rules made under subsection (3) may apply in relation to a term of office that started before the commencement of this section.

(5) The term of an office shall not be extended under subsection (3) so that the term exceeds 5 years.

(6) A reference in this section (other than subsection (3)) to the rules of an organisation includes a reference to the rules of a branch of the organisation.

(7) In this section:

“retirement age”, in relation to an office, means the retirement age applicable to the office under the rules of the organisation concerned or, where the rules provide for a minimum retirement age and a maximum retirement age in relation to the office, the maximum retirement age.

Rules may provide for filling of casual vacancies

200. (1) The rules of an 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) Rules made under subsection (1) shall 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) Where, under rules made under subsection (1), a vacancy in an office in an organisation is filled otherwise than by an ordinary election, the person filling the vacancy shall be taken, for the purposes of the relevant provisions, to have been elected to the office under the relevant provisions.

(4) A reference in this section to the rules of an organisation includes a reference to the rules of a branch of the organisation.

(5) In this section:

“ordinary election” means an election held under rules that comply with section 197;

“relevant provisions”, in relation to an organisation, means:

(a) the provisions of this Act (other than this section); and

(b) the rules of the organisation (other than rules made under subsection (1)) 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 (disregarding any rule made under paragraph 199 (1) (b) but having regard to any rule made under subsection 199 (3)) to hold the office without being re-elected.

Rules to provide conditions for loans, grants and donations by organisations

201. (1) The rules of an organisation, and the rules of a branch of an organisation, shall provide that a loan, grant or donation of an amount exceeding $1,000 shall not be made by the organisation or the branch, as the case may be, unless the relevant committee of management:

(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 or branch; 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) In spite of subsection (1), the rules of an organisation or branch may 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 or branch, 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 relevant committee of management, at the next meeting of the committee, does not approve the loan, grant or donation, it shall be repaid as determined by the committee.

(3) In considering whether to approve a loan, grant or donation made under subsection (2), the relevant committee of management shall have regard to:

(a) whether the loan, grant or donation was made under the rules of the organisation or branch; 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 an organisation, or a branch of an organisation, to make provision of the kind referred to in that subsection in relation to payments made by the organisation or branch by way of provision for, or reimbursement of, out-of-pocket expenses incurred by persons for the benefit of the organisation or branch.

(5) In this section:

“relevant committee of management”, in relation to an organisation or branch of an organisation, means the committee of management of the organisation or branch, as the case may be.

Rules may permit organisation to enter into agreements with State registered unions

202. (1) The rules of an organisation of employees may authorise the organisation to enter into agreements, in the prescribed form, with State registered unions to the effect that members of the State registered union concerned who are ineligible State members are eligible to become members of the organisation under the agreement.

(2) Where, under rules made under subsection (1), an organisation enters into an agreement with a State registered union:

(a) the organisation shall lodge a copy of the agreement in the Industrial Registry;

(b) the Industrial Registrar shall immediately enter particulars of the agreement in the register kept under paragraph 63 (1) (a); and

(3) An organisation is not entitled to represent the industrial interests of persons who are only eligible for membership of the organisation under an agreement entered into under rules made under subsection (1).

(4) Where a person who became a member of an organisation under an agreement entered into under rules made under subsection (1) later becomes eligible for membership of the organisation under its eligibility rules, the organisation is not entitled to represent the industrial interests of the person until a record of the person’s eligibility is entered in the register kept under paragraph 268 (1) (a).

(5) Where an organisation and a State registered union agree, in writing, to terminate an agreement entered into under rules made under subsection (1):

(a) the organisation shall lodge in the Industrial Registry a copy of the agreement to terminate;

(b) the Industrial Registrar shall immediately enter particulars of the termination in the register kept under paragraph 63 (1) (a);

(d) when the termination of the agreement takes effect, persons who became members of the organisation under the agreement (other than a person whose eligibility for membership of the organisation under its eligibility rules is recorded as mentioned in subsection (4)) cease to be members of the organisation.

(6) In this section:

“ineligible State members”, in relation to an organisation, means the members of a State registered union who, under the eligibility rules of the organisation, are not eligible to be members of the organisation;

“State registered union”, in relation to an organisation, means an industrial union or association registered under a State Act which is composed substantially of persons who, under the eligibility rules of the organisation, are eligible to be members of the organisation;

“State Act” means:

(a) the Industrial Arbitration Act, 1940 of New South Wales;

(b) the Industrial Conciliation and Arbitration Act 1961 of Queensland;

(d) the Industrial Conciliation and Arbitration Act, 1972 of South Australia.

Industrial Registrar may determine alterations of rules

203. (1) Where the rules of an organisation do not, in the Industrial Registrar’s opinion, make provision required by this Act, the Industrial Registrar may, by instrument, after giving the organisation an opportunity, as prescribed, 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 subsection (1) take effect on the date of the instrument.

Change of name or alteration of eligibility rules of organisation

204. (1) A change in the name of an organisation, or an alteration of the eligibility rules of an organisation, does not take effect unless a designated Presidential Member consents to the change or alteration.

(2) A designated Presidential Member may consent to a change or alteration in whole or part, but shall not consent unless the Presidential Member is satisfied that the change or alteration has been made under the rules of the organisation.

(3) A designated Presidential Member shall not consent to a change in the name of an organisation unless the Presidential Member is satisfied that the proposed new name of the organisation:

(a) is not the same as the name of another organisation; and

(b) is not so similar to the name of another organisation as to be likely to cause confusion.

(4) A designated Presidential Member shall not consent to an alteration of the eligibility rules of an organisation if, in relation to persons who would be eligible for membership because of the alteration, there is, in the opinion of the designated Presidential Member, another organisation to which those persons might conveniently belong.

(5) Subject to subsection (6), a designated Presidential Member shall not consent to an alteration of the eligibility rules of an organisation that is an industry-based organisation if, because of the alteration, the organisation would stop being an industry-based organisation.

(6) A designated Presidential Member may consent to an alteration of the kind referred to in subsection (5) if the designated Presidential Member is satisfied that there are special circumstances justifying the alteration.

(7) Where a designated Presidential Member consents under subsection (1), to a change or alteration, the change or alteration takes effect on:

(a) where a date is specified in the consent—that date; or

(b) in any other case—the day of the consent.

(8) This section does not apply to a change in the name, or an alteration of the eligibility rules, of an organisation that is:

(a) determined by a designated Presidential Member under subsection 118 (7) or 208 (6); or

(b) proposed to be made for the purposes of an amalgamation under Division 7 of this Part or Part 3 of Schedule 4.

(9) In this section:

“business” means a business, trade, manufacture, undertaking or calling of employers;

“industry-based organisation” means an organisation of employees whose eligibility rules, so far as they relate to the eligibility of employees for membership, restrict eligibility for membership to persons who are employees in relation to the same kind of business.

Alteration of other rules of organisation

205. (1) An alteration of the rules (other than the eligibility rules) of an organisation does not take effect unless particulars of the alteration have been lodged in the Industrial Registry and a Registrar has certified that, in his or her opinion, the alteration:

(a) complies with, and is not contrary to, this Act and awards;

(b) is not otherwise contrary to law; and

(2) Where particulars of an alteration of the rules (other than the eligibility rules) of an organisation have been lodged in the Industrial Registry, a Registrar may, with the consent of the organisation, amend the alteration for the purpose of correcting a typographical, clerical or formal error.

(3) An alteration of rules that has been certified under subsection (1) takes effect on the day of certification.

(4) This section does not apply in relation to an alteration of the rules of an organisation that is:

(a) proposed to be made in relation to an application for an exemption from subsection 198 (1);

(b) determined by the Industrial Registrar under subsection 198 (7) or section 203 or 208; or

Certain alterations of rules to be recorded

206. Where there has been a change in the name of an organisation, or an alteration of the eligibility rules of an organisation, under this Act, the Industrial Registrar shall:

(a) immediately enter, in the register kept under paragraph 63 (1) (a), particulars of the change or alteration, and the date of effect of the change or alteration; and

(b) as soon as practicable after the organisation produces its certificate of registration to the Industrial Registrar, amend the certificate accordingly and return it to the organisation.

Evidence of rules

207. In proceedings under this Act a copy of the rules of an organisation certified by a Registrar to be a true and correct copy is evidence of the rules of the organisation.

Division 3—Validity and performance of rules

Rules contravening section 196

208. (1) A member of an organisation may apply to the Court 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 an organisation contravenes section 196 or that the rules of an organisation contravene section 196 in a particular respect.

(3) An organisation in relation to which an application is made under this section shall be given an opportunity of being heard by the Court.

(4) The Court may, without limiting any other power of the Court to adjourn proceedings, adjourn proceedings in relation to an application under this section for such period and on such terms and conditions as it considers appropriate for the purpose of giving the organisation an opportunity to alter its rules.

(5) Where an order under this section declares that the whole or a part of a rule contravenes section 196, the rule or that part of the rule, as the case may be, shall be taken to be void from the date of the order.

(6) Where:

(a) the Court makes an order declaring as mentioned in subsection (2) in relation to the rules of an 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 appropriate authority, brings them into conformity with section 196 in relation to the matters that gave rise to the order;

the appropriate authority shall, after giving the organisation an opportunity, as prescribed, to be heard on the matter, determine, by instrument, such alterations of the rules as will, in the appropriate authority’s opinion, bring them into conformity with that section in relation to those matters.

(7) The appropriate authority may, on the application of the organisation made within the period of 3 months referred to in subsection (6) or within any extension of the period, extend, or further extend, the period.

(8) Alterations determined under subsection (6) take effect on the date of the instrument.

(9) At any time after a proceeding under this section has been instituted, the Court may make such interim orders as it considers appropriate in relation to a matter in relation to which the matters raised in the proceeding are relevant.

(10) An order under subsection (9) continues in force, unless expressed to operate for a shorter period or sooner discharged, until the completion of the proceeding concerned.

(11) In this section:

“appropriate authority” means:

(a) in relation to the eligibility rules of an organisation—a designated Presidential Member; or

(b) in relation to the other rules of an organisation—the Industrial Registrar.

(12) In this section, a reference to a rule, or the rules, of an organisation includes a reference to a rule, or the rules, of a branch of an organisation.

Directions for performance of rules

209. (1) A member of an organisation may apply to the Court for an order under this section in relation to the organisation.

(2) Before making an order under this section, the Court shall give any person against whom the order is sought an opportunity of being heard.

(3) The Court 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 Court 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 shall not be made under this section that would have the effect of treating as invalid an election to an office in an organisation or a step in relation to such an election.

(7) Where the Court, in considering an application under this section, finds that the whole or a part of a rule of the organisation concerned contravenes section 196 or that the rules of the organisation concerned contravene that section in a particular respect, the Court may, by order, make a declaration to that effect.

(8) Section 208 (other than subsections (1) to (4) (inclusive)) applies in relation to an order made under subsection (7) of this section as if the order had been made under section 208.

(9) In this section:

“election” includes a purported election that is a nullity;

“order under this section” means 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.

Division 4—Conduct of elections for office

Conduct by Australian Electoral Commission

210. (1) Each election for an office in an organisation or branch of an organisation shall be conducted by the Australian Electoral Commission.

(2) Subsection (1) does not apply in relation to an election for an office in an organisation or branch while an exemption granted to the organisation or branch, as the case may be, under section 213 is in force.

Application for organisation or branch to conduct its elections

211. (1) The committee of management of an organisation or branch of an organisation may lodge in the Industrial Registry an application for the organisation or branch, as the case may be, to be exempted from subsection 210 (1) in relation to elections for offices in the organisation or branch.

(2) An application may not be made by a committee of management of an organisation or branch of an organisation unless the committee of management:

(a) has resolved to make the application; and

(b) has notified the members of the organisation or branch, as prescribed, of the making of the resolution.

(3) An application under subsection (1) shall be accompanied by a statutory declaration by a member of the committee of management concerned stating that subsection (2) has been complied with.

(4) Where an application has been made under subsection (1), the Industrial Registrar shall cause a notice setting out details of the application to be published, as prescribed, for the purpose of bringing the notice to the attention of members of the organisation or branch concerned.

(5) Where the rules of an organisation require an office to be filled by an election by the members, or by some of the members, of a single branch of the organisation, an election to fill the office shall be taken to be an election for the branch.

Objections to application to conduct elections

212. (1) Objection may be made to an application under subsection 211 (1) by a member of the organisation or branch of the organisation in relation to which the application was made.

(2) The Industrial Registrar or, if the Industrial Registrar directs, another Registrar shall, as prescribed, hear the application and any objections duly made.

Registrar may permit organisation or branch to conduct its elections

213. (1) Where an application in relation to an organisation or branch has been lodged under subsection 211 (1) and, after any objections duly made have been heard, a Registrar is satisfied:

(a) that the rules of the organisation or branch comply with the requirements of this Act relating to the conduct of elections; and

(b) that, if the organisation or branch is exempted from subsection 210 (1), the elections for the organisation or branch will be conducted:

(i) under the rules of the organisation or branch, as the case may be, and this Act; and

(ii) in a manner that will afford members entitled to vote at such elections an adequate opportunity of voting without intimidation;

the Registrar may exempt the organisation or branch from subsection 210 (1).

(2) A Registrar may revoke an exemption granted to an organisation or branch under subsection (1):

(a) on application by the committee of management of the organisation or branch; or

(b) if the Registrar:

(i) is no longer satisfied as mentioned in subsection (1); and

(ii) has given the committee of management of the organisation or branch an opportunity, as prescribed, to show cause why the exemption should not be revoked.

Registrar to arrange for conduct of elections

214. (1) An organisation or branch of an organisation (other than an organisation or branch to which a Registrar has, under section 213, granted an exemption) shall lodge the prescribed information in relation to an election in the Industrial Registry before the prescribed day or such later day as the Industrial Registrar allows.

(2) If:

(a) the prescribed information is lodged in the Industrial Registry by the organisation or branch (whether or not before the prescribed day or the later day allowed by the Industrial Registrar); and

(b) a Registrar is satisfied that an election is required to be held under the rules of the organisation or branch;

the Registrar shall arrange for the conduct of the election by the Australian Electoral Commission.

Provisions applicable to elections conducted by Australian Electoral Commission

215. (1) Where an electoral official is conducting an election, or taking a step in relation to an election, for an office in, or in a branch of, an organisation, the electoral official:

(a) subject to paragraph (b), shall comply with the rules of the organisation or branch; and

(b) may, in spite of anything in the rules of the organisation or branch, take such action, and give such directions, as the electoral official considers necessary:

(i) to ensure that no irregularities occur in or in relation to the election; or

(ii) to remedy any procedural defects that appear to the electoral official to exist in the rules.

(2) An election conducted by an electoral official, or step taken in relation to such an election, is not invalid merely because of a breach of the rules of the organisation or branch because of:

(a) action taken under subsection (1); or

(b) an act done in compliance with a direction under subsection (1).

(3) Where an electoral official conducting an election, or taking a step in connection with an election:

(a) dies or becomes unable to complete the conduct of the election or the taking of the step; or

(b) ceases to be qualified to conduct the election or to take the step;

the Electoral Commissioner shall arrange for the completion of the conduct of the election, or the taking of the step, by another electoral official.

(4) The expenses incurred by the Australian Electoral Commission in conducting an election under this Act shall be borne by the Commonwealth.

Death of candidate

216. In spite of anything in the rules of an organisation or branch of an organisation, where:

(a) 2 or more candidates are nominated for an election in relation to an office in the organisation or branch; and

(b) one of those candidates dies before the close of the ballot;

the election shall be discontinued and a new election shall be held.

Ballot papers etc. to be preserved

217. (1) In spite of anything in the rules of an organisation or a branch of an organisation, where an election for an office in the organisation or branch is conducted by the Australian Electoral Commission, the organisation or branch, and every officer and employee of the organisation or branch who is able to do so, and the Australian Electoral Commission, shall take such steps as are necessary to ensure that all ballot papers, envelopes, lists and other documents relevant to the election are preserved and kept by the Australian Electoral Commission for one year after the completion of the election.

(2) In spite of anything in the rules of an organisation or a branch of an organisation, where an election for an office in the organisation or branch is conducted by the organisation or branch, the organisation or branch, and every officer and employee of the organisation or branch who is able to do so, shall take such steps as are necessary to ensure that all ballot papers, envelopes, lists and other documents relevant to the election are preserved and kept at the office of the organisation or branch, as the case may be, for one year after the completion of the election.

Division 5—Inquiries into elections

Application for inquiry

218. Where a person who is, or within the preceding period of 12 months has been, a member of an organisation claims that there has been an irregularity in relation to an election for an office in the organisation or a branch of the organisation, the person may make an application for an inquiry by the Court into the matter.

Instituting of inquiry

219. Where:

(a) an application for an inquiry has been lodged with the Court under section 218; and

(b) the Court is satisfied that there is reasonable ground for the application;

the Court shall fix a time and place for conducting the inquiry, and may give such directions as it considers necessary to ensure that all persons who are or may be justly entitled to appear at the inquiry are notified of the time and place fixed and, where the Court fixes a time and place, the inquiry shall be taken to have been instituted.

Court may authorise Industrial Registrar to take certain action

220. (1) Where an application for an inquiry has been lodged with the Court under section 218, the Court may authorise the Industrial Registrar to take for the purposes of the inquiry, personally or by a person acting on his or her behalf, any action referred to in subsection (2).

(2) The actions that may be taken by the Industrial Registrar, or by a person acting on his or her behalf, are as follows:

(a) inspecting election documents;

(b) for the purposes of any such inspection, entering, with such assistance as he or she considers necessary, any premises used or occupied by the organisation, or a branch of the organisation, concerned in which he or she believes election documents to be;

(c) requiring a person to deliver to him or her, in accordance with the requirement, any election documents in the possession or under the control of the person;

(d) taking possession of any election documents;

(e) retaining any election documents delivered to him or her, or of which he or she has taken possession, for such period as is necessary for the purposes of the application and, if proceedings under this Part arise out of the application, until the completion of the proceedings or such earlier time as the Court orders.

(3) Before authorising any action under subsection (1) the Court shall, if it considers that, having regard to all the circumstances, a person should be given an opportunity of objecting to the proposed action, give such an opportunity to the person.

(4) In this section:

“election documents”, in relation to an election, means ballot papers, envelopes, lists or other documents that have been used in, or are relevant to, the election.

Interim orders

221. (1) Where an inquiry into an election has been instituted, the Court may make one or more of the following orders:

(a) an order that no further steps shall 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 shall not act in the 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 the office;

(d) where it 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 incidental or supplementary to an order under this subsection;

(f) an order varying or discharging an order under this subsection.

(2) Where the Court orders that a person may act, or continue to act, in an office, the person shall, while the order remains in force and in spite of anything in the rules of the organisation or a branch of the organisation, be taken to hold the office.

(3) An order under this section shall continue in force, unless expressed to operate for a shorter period or sooner discharged, until the completion of:

(a) the proceeding concerned in the Court in relation to the election; and

(b) all matters ordered by the Court (otherwise than under this section) in the proceeding.

Procedure at hearing

222. (1) The Court shall allow to appear at an inquiry all persons who apply to the Court for leave to appear and appear to the Court to be justly entitled to be heard, and the Court may order any other person to appear.

(2) The persons appearing, or ordered under subsection (1) to appear, at an inquiry shall be taken to be parties to the proceeding.

(3) For the purposes of this Division:

(a) the procedure of the Court is, subject to this Act and the Rules of Court, within the discretion of the Court; and

(b) the Court 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.

Action by Court

223. (1) At an inquiry, the Court shall inquire into and determine the question whether an irregularity has happened in relation to the election, and such further questions concerning the conduct and results of the election as the Court considers necessary.

(2) In the course of conducting an inquiry, the Court may make such orders (including an order for the recounting of votes) as the Court considers necessary.

(3) If the Court finds that an irregularity has happened, the Court may, subject to subsection (4), make one or more of the following orders:

(a) an order declaring the election, or any step 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;

(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 (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 Court shall not 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 Court is of the opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have happened or may happen, the result of the election may have been affected, or may be affected, by irregularities.

(5) Without limiting the power of the Court to terminate a proceeding before it, the Court may, at any time after it begins an inquiry into an election, terminate the inquiry or the inquiry to the extent that it relates to specified matters.

Industrial Registrar to make arrangements for conduct of elections etc.

224. Where the Court makes an order under paragraph 223 (3) (c) in relation to an election, the Industrial Registrar shall arrange for the taking of the necessary steps in relation to the election, or for the conduct of the new election, as the case requires, by the Australian Electoral Commission.

Enforcement of orders

225. The Court may grant such injunctions (including mandatory injunctions) as it considers necessary for the effective performance of its functions and the enforcement of its orders under this Division.

Validity of certain acts etc. where election declared void

226. (1) Where the Court declares void the election of a person who has, since the election, purported to act in the office to which the person purported 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 Court may declare an act referred to in paragraph (a) to have been void, and, if the Court does so, the act shall be taken not to have been validly done.

(2) Where an election is held, or a step in relation to an election is taken, under an order of the Court, the election or step is not invalid merely

because of a departure from the rules of the organisation or branch concerned that was required by the order of the Court.

Division 6—Disqualification from office

Interpretation

227. (1) In this Division:

“prescribed offence” means:

(a) an offence under a law of the Commonwealth, a State or Territory, or another country, involving fraud or dishonesty and punishable on conviction by imprisonment for a period of 3 months or more;

(b) an offence against section 313, 314, 315, 316, 317, 318 or 332;

(d) any other offence under a law of the Commonwealth, a State or Territory, or 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 prescribed offence includes a reference to a person having been convicted before the commencement of this section.

(3) A reference in this Division to a person being convicted of a prescribed offence does not include a reference to a person being convicted, otherwise than on indictment, of an offence referred to in paragraph (1) (c).

(4) A reference in this Division to a person being convicted of a prescribed offence does not include a reference to a person being convicted of an offence referred to in paragraph (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 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 section 228, 229 or 230, evidence that the person was convicted of the offence on that day.

(6) A certificate purporting to be signed by the 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 section 228, 229 or 230, 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 section 228, 229 or 230, evidence that the person was released from the prison on that day.

Certain persons disqualified from holding office in organisations

228. (1) A person who has been convicted of a prescribed offence is not eligible to be a candidate for an election, or to be elected or appointed, to an office in an organisation unless:

(a) on an application made under section 229 or 230 in relation to the conviction of the person for the prescribed 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 paragraph 229 (2) (b) or 230 (2) (b), the Court specified a period for the purposes of this subsection, and the period has elapsed since the person was convicted of the prescribed offence or, if the person served a term of imprisonment in relation to the prescribed 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 prescribed offence or, if the person served a term of imprisonment in relation to the prescribed offence, since the person was released from prison.

(2) Where a person who holds an office in an organisation is convicted of a prescribed 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 Court under section 229 or 230.

(3) If a person who holds an office in an organisation makes an application to the Court under section 229 or 230 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 Court, on application by the person, has extended the 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 Court shall not, under paragraph (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 paragraph (3) (a); or

(b) if the Court has previously extended the period under paragraph (3) (b)—the application for the further extension is made before the end of the period as extended.

(5) An organisation, a member of an organisation or the Industrial Registrar may apply to the Court for a declaration whether, because of the operation of this section or section 229 or 230:

(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 section 229 or 230 in relation to a conviction of the person for a prescribed offence, of leave to hold offices in organisations does not affect the operation of this section or section 229 or 230 in relation to another conviction of the person for a prescribed offence.

Application for leave to hold office in organisations by prospective candidate for office

229. (1) A person who:

(a) wants to be a candidate for election, or to be appointed, to an office in an organisation; and

(b) has been, within the immediately preceding period of 5 years, convicted of a prescribed offence or released from prison after serving a term of imprisonment in relation to a conviction for a prescribed offence;

may, subject to subsection (4), apply to the Court for leave to hold office in organisations.

(2) Where a person makes an application under subsection (1), the Court may:

(a) grant the person leave to hold office in organisations;

(b) refuse the person leave to hold office in organisations and specify, for the purposes of subsection 228 (1), a period of less than 5 years; or

(3) A person who:

(a) holds an office in an organisation;

(b) is convicted of a prescribed offence; and

(c) on an application made under subsection (1) in relation to the conviction for the prescribed offence, is, under paragraph (2) (b) or (c), 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 prescribed offence if the person has previously made an application under this section or under section 230 in relation to the conviction.

Application for leave to hold office in organisations by office holder

230. (1) Where a person who holds an office in an organisation is convicted of a prescribed offence, the person may, subject to subsection (4), within 28 days after the conviction, apply to the Court for leave to hold office in organisations.

(2) Where a person makes an application under subsection (1) for leave to hold office in organisations, the Court may:

(a) grant the person leave to hold office in organisations;

(b) refuse the person leave to hold office in organisations and specify, for the purposes of subsection 228 (1), a period of less than 5 years; or

(3) A person who, on an application made under subsection (1), is, under paragraph (2) (b) or (c), refused leave to hold office in organisations ceases to hold the office concerned.

Court to have regard to certain matters

231. For the purposes of exercising the power under section 229 or 230 to grant or refuse leave, to a person who has been convicted of a prescribed offence, to hold office in organisations, the Court shall have regard to:

(a) the nature of the prescribed offence;

(b) the circumstances of, and the nature of the person’s involvement in, the commission of the prescribed offence;

(d) the fitness of the person to be involved in the management of organisations, having regard to the conviction for the prescribed offence; and

(e) any other matter that, in the Court’s opinion, is relevant.

Action by Court

232. (1) The Court may, in spite of anything in the rules of any organisation concerned, make such order to give effect to a declaration made under subsection 228 (5) as it considers appropriate.

(2) Where an application is made to the Court under subsection 228 (5):

(a) the person whose eligibility, or whose holding of office, is in question shall be given an opportunity of being heard by the Court; and

(b) if the application is made otherwise than by the organisation concerned—the organisation shall be given an opportunity of being heard by the Court.

(3) Where an application is made to the Court under section 229 or 230, the organisation concerned shall be given an opportunity of being heard by the Court.

Division 7—Amalgamation of organisations

Interpretation

233. In this Division:

“alternative prevision” means a provision of the kind referred to in subsection 235 (4);

“amalgamated organisation”, in relation to a proposed amalgamation that has taken effect, means the organisation of which members of the organisations that were proposed de-registering organisations have, under paragraph 249 (3) (d), become members;

“de-registration”, in relation to an organisation, means the cancellation of the registration of the organisation;

“proposed alternative amalgamation”, in relation to a scheme for a proposed amalgamation that contains an alternative provision, means an amalgamation proposed to be made under an alternative provision;

“proposed amalgamated organisation”, in relation to a proposed amalgamation, means the organisation or proposed organisation of which members of the proposed de-registering organisations are proposed to become members;

“proposed amalgamation” means the proposed carrying out of arrangements in relation to 2 or more organisations under which:

(a) an organisation is, or 2 or more organisations are, to be de-registered at the request of the organisation or organisations;

(b) members of the organisation or organisations to be de-registered are to become members of another organisation (whether existing or proposed);

(c) property of the organisation or organisations to be de-registered is to become the property of the other organisation; and

(d) liabilities of the de-registered organisation or organisations are to be satisfied by the other organisation;

“proposed de-registering organisation”, in relation to a proposed amalgamation, means an organisation that is, under the amalgamation, to be de-registered;

“proposed principal amalgamation”, in relation to a scheme for a proposed amalgamation, means:

(a) if the scheme contains an alternative provision—the amalgamation proposed to be made under the scheme otherwise than under an alternative provision; or

(b) in any other case—the proposed amalgamation.

Procedure to be followed for proposed amalgamation etc.

234. (1) For the purpose of implementing a proposed amalgamation, the procedure provided by this Division shall be followed.

(2) Where it appears to a Presidential Member that the performance of an act, including:

(a) the de-registration of an organisation;

(b) the registration of an organisation; and

(i) a change in the name of an organisation; or

(ii) an alteration of the eligibility rules of an organisation;

is sought for the purposes of a proposed amalgamation, the Presidential Member shall not perform the act otherwise than under this Division.

Application for approval to be lodged

235. (1) The existing organisations concerned in a proposed amalgamation, and any association proposed to be registered as an organisation under the amalgamation, shall jointly lodge in the Industrial Registry an application for the approval of a designated Presidential Member for the submission of the amalgamation to ballot.

(2) The application shall include a scheme for the amalgamation, setting out the prescribed particulars of the amalgamation.

(3) A copy of:

(a) the rules of any association proposed to be registered as an organisation; and

(b) any proposed alterations of the rules of the existing organisations; shall be lodged with the application.

(4) If 3 or more existing organisations are concerned in the amalgamation, the scheme for the amalgamation may contain a provision to the effect that, if:

(a) the members of one or more of the organisations do not approve the amalgamation; and

(b) the members of 2 or more of the organisations (including, where one of the organisations is a party to the amalgamation otherwise than as a de-registering organisation, that organisation) approve both the amalgamation so far as it involves all the organisations concerned and, in the alternative, the amalgamation so far as it involves the other organisation or 2 or more of the other organisations;

there may be an amalgamation involving the organisations the members of which give their approval.

(5) If the scheme for the amalgamation contains an alternative provision, the scheme shall also set out particulars of the differences between the proposed principal amalgamation and each proposed alternative amalgamation

and the differences between any rules referred to in paragraph (3) (a) or any proposed alterations referred to in paragraph (3) (b).

Consideration of form of application etc.

236. (1) If a designated Presidential Member is satisfied:

(a) that the form of the application lodged under section 235 in relation to the proposed amalgamation complies with this Act and the Rules of the Commission;

(b) that the documents that, under this Act and the Rules of the Commission, are required to be lodged with the application have been lodged, and comply with this Act and the Rules of the Commission;

(c) that the committee of management of each of the existing organisations concerned in the amalgamation has passed a resolution approving the amalgamation; and

(d) that any proposed alterations of the rules of an existing organisation concerned in the amalgamation have been made under the rules of the organisation;

the Presidential Member shall accept the application.

(2) If the Presidential Member is not satisfied, the Presidential Member shall, subject to subsections (3) and (5), dismiss the application.

(3) If, apart from this subsection, the Presidential Member would be required to dismiss the application, the Presidential Member may adjourn the proceeding.

(4) Subsection (3) shall not be taken to limit by implication the power of the Presidential Member to adjourn the proceeding at any stage.

(5) If, apart from this subsection, the Presidential Member would be required to dismiss the application, the Presidential Member may:

(a) permit the applicants to amend the application and any documents lodged with the application; or

(b) permit the applicants to lodge documents in relation to the application;

and, if the Presidential Member is then satisfied as to the matters referred to in subsection (1), the Presidential Member shall accept the application.

Notification of hearing in relation to proposed amalgamation

237. If the Presidential Member accepts the application lodged under section 235 in relation to the proposed amalgamation, the Presidential Member:

(a) shall immediately fix a time and place for the hearing of submissions in relation to:

(i) the making of a declaration under section 239 in relation to the application; and

(ii) the granting of an approval under section 240 in relation to the application;

(b) shall ensure that all organisations are promptly notified of the time and place of the hearing; and

Submissions

238. (1) Submissions to a hearing arranged under section 237 in relation to the proposed amalgamation may only be made under this section.

(2) Submissions may be made only with the leave of a designated Presidential Member and in relation to a prescribed matter.

Community of interest declaration

239. (1) If, at the conclusion of the hearing arranged under section 237 in relation to the proposed amalgamation, a designated Presidential Member is satisfied:

(a) that the amalgamation would further the objects of this Act; and

(b) that there is a community of interest between the organisations concerned in the amalgamation in relation to their industrial interests;

the Presidential Member shall declare that he or she is satisfied as to those matters.

(2) The Presidential Member shall be satisfied, for the purposes of paragraph (1) (b), that there is a community of interest between organisations of employees in relation to their industrial interests if, and only if, the Presidential Member is satisfied that a substantial number of members of each of the organisations are:

(a) eligible to become members of the other organisation or each of the other organisations;

(b) engaged in the same work, in aspects of the same work or similar work;

(d) employed in the same or similar work by employers engaged in the same industry; or

(e) engaged in work, or in industries, in relation to which there is a community of interest.

(3) The Presidential Member shall be satisfied, for the purposes of paragraph (1) (b), that there is a community of interest between organisations of employers in relation to their industrial interests if, and only if, the Presidential Member is satisfied that a substantial number of members of each of the organisations are:

(a) eligible to become members of the other organisation or each of the other organisations;

(b) engaged in the same industry, in aspects of the same industry or in similar industries;

(d) engaged in industries in relation to which there is a community of interest.

Approval for submission to ballot of amalgamation not involving extension of eligibility rules etc.

240. (1) If, at the conclusion of the hearing arranged under section 237 in relation to the proposed amalgamation, a designated Presidential Member is satisfied:

(a) that the amalgamation does not involve the registration of an association as an organisation;

(b) that a person who is not eligible for membership of an existing organisation concerned in the proposed amalgamation would not be eligible for membership of the proposed amalgamated organisation immediately after the proposed amalgamation takes effect;

(c) that any proposed alteration of the name of an existing organisation concerned in the amalgamation will not result in the organisation having a name that is the same as the name of another organisation or is so similar to the name of another organisation as to be likely to cause confusion;

(d) that any proposed alterations of the rules of an existing organisation concerned in the amalgamation comply with, and are not contrary to, this Act and awards and are not otherwise contrary to law; and

(e) that any proposed de-registration of an existing organisation complies with this Act and is not otherwise contrary to law;

the Presidential Member shall approve the submission of the amalgamation to ballot.

(2) If the Presidential Member is not satisfied, the Presidential Member:

(a) shall, subject to subsections (3) and (5), refuse to approve, under this section, the submission of the amalgamation to ballot; and

(b) shall cause the Industrial Registrar to publish in the Gazette notice of the making of the application together with a copy of the proposed scheme.

(3) If, apart from this subsection, the Presidential Member would be required to refuse to approve the submission of the amalgamation to ballot, the Presidential Member may adjourn the proceeding.

(4) Subsection (3) shall not be taken to limit by implication the power of the Presidential Member to adjourn the proceeding at any stage.

(5) If, apart from this subsection, the Presidential Member would be required to refuse to approve the submission of the amalgamation to ballot, the Presidential Member may:

(a) permit the applicants to amend the scheme; or

(b) permit the applicants to amend any proposed alterations of the rules of the existing organisations concerned in the amalgamation;

and, if the Presidential Member is then satisfied as to the matters referred to in subsection (1), shall approve the submission of the amalgamation to ballot.

(6) The notice under paragraph (2) (b) shall, as prescribed, notify persons of the right to object to any proposed amalgamation to which the scheme relates.

Objections in relation to amalgamation involving extension of eligibility rules etc.

241. (1) Objection to a matter involved in the proposed amalgamation may only be made to the Commission under this section.

(2) Objection may be made to the Commission in relation to the amalgamation only if a designated Presidential Member has refused to approve, under section 240, the submission of the amalgamation to ballot.

(3) Objection may be made by a prescribed person on a prescribed ground.

(4) A designated Presidential Member shall, as prescribed, hear all objections duly made to the amalgamation.

Approval for submission to ballot of amalgamation involving extension of eligibility rules etc.

242. (1) If, after the prescribed time allowed for the making of objections under section 241 and after hearing any objections duly made to the proposed amalgamation, a designated Presidential Member:

(a) finds that no duly made objection is justified; and

(b) is satisfied that, so far as the amalgamation involves:

(i) the registration of an association;

(ii) a change in the name of an organisation;

(iii) an alteration of the rules of an association; or

(iv) the de-registration of an organisation at the request of the organisation;

it complies with, and is not contrary to, this Act and awards and is not otherwise contrary to law;

the Presidential Member shall approve the submission of the amalgamation to ballot.

(2) If the Presidential Member is not satisfied, the Presidential Member shall, subject to subsections (3) and (5), refuse to approve, under this section, the submission of the amalgamation to ballot.

(3) If, apart from this subsection, the Presidential Member would be required to refuse to approve the submission of the amalgamation to ballot, the Presidential Member may adjourn the proceeding.

(4) Subsection (3) shall not be taken to limit by implication the power of the Presidential Member to adjourn the proceeding at any stage.

(5) If, apart from this subsection, the Presidential Member would be required to refuse to approve the submission of the amalgamation to ballot, the Presidential Member may:

(a) permit the applicants to amend the scheme; or

(b) permit the applicants to amend:

(i) the rules of any association proposed to be registered as an organisation; or

(ii) any proposed alterations of the rules of the existing organisations concerned in the amalgamation;

and, if the Presidential Member is then satisfied as to the matters referred to in subsection (1), shall approve the submission of the amalgamation to ballot.

Ballot of members

243. (1) If a designated Presidential Member approves, under section 240 or 242, the submission of the proposed amalgamation to ballot, the Industrial Registrar shall arrange for the conduct by the Australian Electoral Commission, in relation to each of the existing organisations concerned in the amalgamation, of a secret postal ballot of the members of the organisation on the question whether they approve the proposed principal amalgamation.

(2) If the scheme for the amalgamation contains a proposed alternative provision, the Industrial Registrar shall also arrange for the conduct, at the same time and in the same manner as the ballot under subsection (1), of a ballot of the members of each of the existing organisations on the question or questions whether, if the proposed principal amalgamation does not take place, they approve the proposed alternative amalgamation or each of the proposed alternative amalgamations, as the case requires.

(3) If, under subsection (2), the Industrial Registrar is required to arrange for the conduct of 2 or more ballots of the members of an organisation at the same time, the ballot papers for both or all ballots shall be on the same piece of paper.

(4) A person conducting a ballot under subsection (2) shall not count the votes in the ballot unless the person is satisfied that the result of the ballot will be required to be known for the purposes of this Act.

(5) A copy of the scheme for the amalgamation as lodged under this Division, or, if the scheme has been amended under this Division, of the scheme as amended, shall accompany the ballot paper or ballot papers sent to the persons entitled to vote at the ballot or ballots.

(6) The roll of voters for a ballot shall be a roll of the persons who, one month before the day fixed under subsection 244 (1) as the commencing day of the ballot:

(a) have the right under the rules of the organisation to vote at such a ballot; or

(b) if the rules of the organisation do not then provide for the right to vote at such a ballot—have the right under the rules of the organisation to vote at a ballot for an election for an office in the organisation that is conducted by a direct voting system.

(7) Subject to this section, a ballot conducted under this section shall be conducted as prescribed.

(8) If the total number of members that could be admitted to membership of the proposed amalgamated organisation on, and because of, the amalgamation does not exceed 5% of the number of members of the organisation on the day on which the application was lodged under section 235 in relation to the amalgamation, the organisation may apply to a designated Presidential Member for exemption from the requirement that a ballot of its members be held in relation to the amalgamation.

(9) The Presidential Member shall grant the exemption unless the Presidential Member considers that, in the special circumstances of the case, the exemption should be refused.

(10) If the exemption is granted, the members of the organisation shall be taken to have approved the proposed principal amalgamation and, if the scheme for the amalgamation contains an alternative provision, to have approved each proposed alternative amalgamation.

Notice of ballot etc.

244. (1) A person conducting a ballot under section 243 in relation to the proposed amalgamation shall:

(a) fix a day as the commencing day of the ballot and a day as the closing day of the ballot; and

(b) not less than 3 months before the commencing day of the ballot, publish in the Gazette, and as otherwise prescribed, notice of the ballot and of those days.

(2) If, under subsection 243 (2), the Industrial Registrar is required to arrange for the conduct of 2 or more ballots of the members of an organisation at the same time, one day shall be fixed as the commencing day of both or all ballots and one day shall be fixed as the closing day of both or all ballots.

(3) Not less than 2 months before the commencing day of the ballot or ballots:

(a) the organisation concerned may lodge with the Industrial Registrar a written statement of not more than 2,000 words in support of the proposed principal amalgamation and, if the scheme for the amalgamation contains an alternative provision, of each proposed alternative amalgamation; and

(b) at least the relevant number of members of the organisation may lodge with the Industrial Registrar a written statement of not more than 2,000 words in opposition to the proposed principal amalgamation or, if the scheme for the amalgamation contains an alternative provision, to the proposed principal amalgamation or any proposed alternative amalgamation or any 2 or more of them;

and, subject to subsection (4), a copy of each statement shall accompany the ballot paper or ballot papers sent to the persons entitled to vote at the ballot or ballots.

(4) If 2 or more statements in opposition to the amalgamation are duly lodged with the Industrial Registrar:

(a) a designated Presidential Member shall prepare, or cause to be prepared, in consultation, if practicable, with representatives of the persons who lodged each of the statements, a written statement of not more than 2,000 words in opposition to the amalgamation based on both or all the statements and, as far as practicable, presenting fairly the substance of the arguments against the amalgamation contained in both or all the statements; and

(b) the statement prepared by the Presidential Member shall accompany the ballot paper or ballot papers as if it had been the sole statement lodged under paragraph (3) (b).

(5) The regulations may make provision for ensuring equitable presentation of argument for and against a proposed amalgamation in periodical publications of the existing organisations, and the branches of the organisations, concerned in the amalgamation after the notice has been published under subsection (1) in relation to the amalgamation.

(6) In this section:

“relevant number”, in relation to an organisation, means:

(a) 5% of the total number of members of the organisation; or

(b) 250;

whichever is the lesser.

Officer of organisation to provide information for ballot etc.

245. A person conducting a ballot under section 243 in relation to the proposed amalgamation may, for the purposes of the ballot, require an officer or employee of the organisation concerned or of a branch of the organisation:

(a) to provide to the person information within the knowledge or in the possession of the officer or employee; or

(b) to make available to the person a document in the possession of the officer or employee or to which the officer or employee has access.

Determination of approval of amalgamation by members of organisations

246. (1) Where, under subsection 243 (1) or (2), the question of an amalgamation (in this subsection called the “relevant amalgamation”) is submitted to a ballot of the members of an existing organisation concerned in the proposed amalgamation, the members of the organisation shall be taken to have approved the relevant amalgamation if, and only if:

(a) where a declaration has been made under section 239 in relation to the proposed amalgamation—more than a half of the formal votes cast in the ballot are in favour of the relevant amalgamation; or

(b) in any other case:

(i) at least a quarter of the members on the roll of voters cast a vote in the ballot; and

(ii) more than a half of the formal votes cast are in favour of the relevant amalgamation.

(2) If the scheme for the amalgamation contains an alternative provision, a member shall not be taken to record a formal vote in a ballot on the question of a proposed alternative amalgamation if the member does not record a formal vote in favour of the proposed principal amalgamation.

Inquiries into irregularities

247. (1) Not later than 30 days after the declaration of the result of a ballot under section 243, application may be made to the Court, as prescribed, for an inquiry by the Court into alleged irregularities in relation to the ballot.

(2) If the Court finds that there has been an irregularity that may affect, or may have affected, the result of the ballot, the Court may:

(a) if the ballot is uncompleted—order that a step in relation to the ballot be taken again; or

(b) in any other case—order that a fresh ballot be conducted by the Australian Electoral Commission in place of the ballot in which the irregularity happened;

and may make such further orders as it considers necessary.

(3) The regulations may make provision with respect to the procedure for inquiries by the Court into alleged irregularities in relation to ballots under section 243, and for matters relating to, or arising out of, inquiries.

Approval of amalgamation

248. (1) If the members of each of the existing organisations concerned in the proposed amalgamation approve the proposed principal amalgamation, the proposed principal amalgamation shall be taken to be approved for the purposes of this Division.

(2) If:

(a) the scheme for the proposed amalgamation contains an alternative provision;

(b) the members of one or more of the existing organisations concerned in the proposed amalgamation do not approve the proposed principal amalgamation; and

(c) the members of 2 or more of the organisations (including, where one of the organisations is a party to the amalgamation otherwise than as a de-registering organisation, that organisation) approve both the proposed principal amalgamation and a proposed alternative amalgamation;

the proposed alternative amalgamation shall be taken to be approved for the purposes of this Division.

Action to be taken after ballot

249. (1) A proposed amalgamation that is taken to be approved for the purposes of this Division takes effect in accordance with this section.

(2) If a designated Presidential Member is satisfied:

(a) that the period, or the latest of the periods, within which application may be made to the Court under section 247 in relation to the amalgamation has ended;

(b) that any application to the Court under section 247 has been disposed of, and the result of any fresh ballot ordered by the Court has been declared;

(c) that there are no proceedings pending against any of the existing organisations concerned in the amalgamation in relation to:

(i) contraventions of this Act, the previous Act or other laws of the Commonwealth; or

(ii) breaches of:

(a) awards; or

(b) orders made under this Act, the previous Act or other laws of the Commonwealth;

(d) that all penalties imposed on any of the organisations under this Act or the previous Act, or in relation to any such breaches, have been paid; and

(e) that proper arrangements have been made for property of the de-registering organisation or organisations to become the property of, and for liabilities of the de-registering organisation or organisations to be satisfied by, the amalgamated organisation;

the Presidential Member shall, after consultation with the organisations, by notice published in the Gazette, fix a day as the day on which the amalgamation is to take effect.

(3) On the day fixed:

(a) if the proposed amalgamated organisation is not already registered—the Industrial Registrar shall enter, in the register kept under

paragraph 63 (1) (a), the name and eligibility rules of the organisation, and the date of the entry;

(b) any proposed alteration of the rules of an existing organisation concerned in the amalgamation takes effect;

(d) the persons who, immediately before that day, were members of a proposed de-registering organisation become, by force of this section and without payment of entrance fee, members of the proposed amalgamated organisation.

Resignation from membership

250. Where the day on which the proposed amalgamation is to take effect is fixed, section 264 has effect in relation to resignation from membership of a proposed de-registering organisation as if the reference in subsection (2) to 3 months were a reference to 1 month.

Effect of amalgamation on awards and orders

251. On and from the day on which the proposed amalgamation takes effect:

(a) an award or an order of the Commission that was, immediately before that day, binding on a proposed de-registering organisation and its members becomes, by force of this section, binding on the proposed amalgamated organisation and its members; and

(b) the award or order has effect for all purposes (including the obligations of employers and organisations of employers) as if references in the award or order to the de-registering organisation included references to the amalgamated organisation.

Holding of offices after amalgamation

252. The rules of:

(a) an association proposed to be registered as an organisation under a proposed amalgamation; and

(b) an organisation that is a proposed amalgamated organisation in relation to a proposed amalgamation;

may, in spite of section 197, make provision in relation to the holding of offices in an organisation by persons holding offices in any of the existing organisations concerned in the amalgamation immediately before the amalgamation takes effect, but such rules shall not permit an office in the organisation to be so held for more than 4 years after the amalgamation takes effect without an election being held in relation to the office.

Expenses of ballot

253. The expenses of a ballot under section 243 shall be borne by the Commonwealth.

Division 8—Validating provisions for organisations

Interpretation

254. In this Division, unless the contrary intention appears:

“collective body” means:

(a) in relation to an organisation—the committee of management or a conference, council, committee, panel or other body of or within the organisation; and

(b) in relation to a branch of an organisation—the committee of management or a conference, council, committee, panel or other body of or within the branch;

“invalidity” includes nullity and, without limiting the generality of the foregoing, includes any invalidity or nullity 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 branch 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 or branch:

(i) has not been elected or appointed or duly elected or appointed;

(ii) has purported to be elected or appointed by an election or appointment that was a nullity;

(iii) was not entitled to be elected or appointed or to hold office;

(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 or branch, as officers or voters or otherwise.

Validation of certain acts done in good faith

255. (1) Subject to this section and section 257, all acts done in good faith by a collective body of an organisation or branch of an organisation, or by persons purporting to act as such a collective body, are valid in spite of 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 or alteration of a rule of the organisation or branch.

(2) Subject to this section and section 257, all acts done in good faith by a person holding or purporting to hold an office or position in an organisation or branch are valid in spite of any invalidity that may later be discovered in:

(a) the election or appointment of the person; or

(b) the making or alteration of a rule of the organisation or branch.

(3) For the purposes of this section:

(a) a person shall not 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; and

(b) a person shall not be treated as purporting to act as a member of a collective body of a branch of an organisation or as the holder of an office or position in the branch unless the person has, in good faith, purported to be, and has been treated by officers or members of the branch 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;

(b) a person who has purported to be a member of a collective body of an organisation or branch is to be treated as having done so in good faith until the contrary is proved;

(c) knowledge of facts from which an invalidity arises is not of itself to be treated as knowledge that the invalidity exists;

(d) an invalidity in:

(i) the election or appointment of a collective body of a branch of an organisation or any member of such a collective body;

(ii) the election or appointment of the persons or any of the persons purporting to act as a collective body of a branch;

(iii) the election or appointment of a person holding or purporting to hold an office or position in a branch; or

(iv) the making or alteration of a rule of a branch;

shall not 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 branch or to a majority of the persons purporting to act as the committee of management; and

(e) an invalidity in any other election or appointment or in the making or alteration of a rule to which this section applies shall not 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 Division 5.

Validation of certain acts after 4 years

256. (1) Subject to this section and section 257, 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 or branch of an organisation and purporting to exercise power conferred by or under the rules of the organisation or branch; or

(ii) by a person holding or purporting to hold an office or position in an organisation or branch and purporting to exercise power conferred by or under the rules of the organisation or branch;

(b) the election or purported election, or the appointment or purported appointment of a person, to an office or position in an organisation or branch; or

the act, election, purported election, appointment or purported appointment, or the making or purported making or alteration or purported alteration of the rule, shall be taken to have been done in compliance with the rules of the organisation or branch.

(2) The operation of this section does not affect the validity or operation of an order, judgment, decree, declaration, direction, verdict, sentence, decision or similar judicial act of the Court 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.

Order affecting application of section 255 or 256

257. (1) Where, on an application for an order under this section, the Court is satisfied that the application of section 255 or 256 in relation to an act would do substantial injustice, having regard to the interests of:

(a) the organisation;

(b) members or creditors of the organisation; or

the Court shall, by order, declare accordingly.

(2) Where a declaration is made under subsection (1), section 255 or 256, as the case requires, does not apply, and shall be taken never to have applied, in relation to the act specified in the declaration.

(3) The Court 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 Court 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.

Court may make orders in relation to consequences of invalidity

258. (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 Court for a determination of the question whether an invalidity has occurred in:

(a) the management or administration of the organisation or a branch of the organisation;

(b) an election or appointment in the organisation or a branch of the organisation; or

(2) On an application under subsection (1), the Court may make such declaration as it considers proper.

(3) Where, in a proceeding under subsection (1), the Court finds that an invalidity of the kind referred to in that subsection has occurred, the Court may make such order as it considers appropriate:

(a) to rectify the invalidity or cause it to be rectified;

(b) to negative, modify or cause to be modified the consequences in law of the invalidity; or

(4) Where an order is made under subsection (3), the Court may give such ancillary or consequential directions as it considers appropriate.

(5) The Court shall not make an order under subsection (3) without satisfying itself that such an order would not do substantial injustice to:

(a) the organisation;

(b) any member or creditor of the organisation; or

(6) The Court 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.

Court may order reconstitution of branch etc.

259. (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 Court for a declaration that:

(a) a part of the organisation, including:

(i) a branch or part of a branch of the organisation; or

(ii) a collective body of the organisation or a branch of the organisation;

has ceased to exist or function effectively and there are no effective means under the rules of the organisation or branch by which it can be reconstituted or enabled to function effectively; or

(b) an office or position in the organisation or a branch of the organisation is vacant and there are no effective means under the rules of the organisation or branch to fill the office or position;

and the Court may make a declaration accordingly.

(2) Where the Court makes a declaration under subsection (1), the Court may, by order, approve a scheme for the taking of action by a collective body of the organisation or a branch of the organisation, or by an officer or officers of the organisation or a branch of the organisation:

(a) for the reconstitution of the branch, the part of the branch or the collective body;

(b) to enable the branch, the part of the branch or the collective body to function effectively; or

(3) Where an order is made under this section, the Court may give such ancillary or consequential directions as it considers appropriate.

(4) The Court shall not make an order under this section without satisfying itself that such an order would not do substantial injustice to the organisation or any member of the organisation.

(5) The Court 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.

(6) An order or direction of the Court under this section, and any action taken in accordance with such an order or direction, has effect in spite of anything in the rules of the organisation or a branch of the organisation.

(7) The Court shall not under this section approve a scheme involving provision for an election for an office unless the scheme provides for the election to be held by a direct voting system or a collegiate electoral system.

Application for membership of organisation by person treated as having been a member

260. (1) Where:

(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 time of the person’s application to the time of the person’s admission.

(2) Where 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;

(b) a person who is or desires to become the employer of the person; or

may apply to the Court for a declaration as to the entitlement of the person under this section.

(3) Subject to subsection (5), the Court may, in spite of 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 Court 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 Court under this section:

(a) if the application is made otherwise than by the person whose entitlement is in question—the person shall be given an opportunity to be heard by the Court; and

(b) if the application is made otherwise than by the organisation concerned—the organisation shall be given an opportunity to be heard by the Court.

(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.

Division 9—Membership of organisations

Entitlement to membership of organisations

261. (1) Subject to any award or order of the Commission, an employee who is eligible to become a member of an organisation of employees under the eligibility rules of the organisation that relate to the occupations in which, or the industry in relation to which, members are to be employed is, unless of general bad character, entitled, subject to payment of any amount properly payable in relation to membership:

(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.

(2) Subsection (1) does not entitle an employee to remain a member of an organisation if the employee ceases to be eligible to become a member and the rules of the organisation do not permit the employee to remain a member.

(3) Subject to subsection (4) and to any award or order of the Commission, an employer who is eligible to become a member of an organisation of employers is entitled, subject to payment of any amount properly payable in relation to membership:

(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.

(4) Subsection (3) does not entitle an employer:

(a) to become a member of an organisation if the employer is:

(i) a natural person who is of general bad character; or

(ii) a body corporate whose constituent documents make provisions inconsistent with the purposes for which the organisation was formed; or

(b) to remain a member of an organisation if the employer ceases to be eligible to become a member and the rules of the organisation do not permit the employer to remain a member.

(5) Subsections (1) and (3) have effect in spite of anything in the rules of the organisation concerned, except to the extent that they expressly require compliance with those rules.

(6) A person who is qualified to be employed in a particular occupation, and seeks to be employed in the occupation:

(a) shall for the purposes of this section be taken to be an employee; and

(b) in spite of anything in the rules of the organisation, shall not be treated as not being eligible for membership of an organisation merely because the person has never been employed in the occupation.

(7) Where a question arises as to the entitlement under this section of a person:

(a) to be admitted as a member of an organisation (whether for the first time or after having resigned, or been removed, as a member of the organisation); or

(b) to remain a member of an organisation;

that person or, where the person is an employee, a person who is or wants to become the employer of the person, or the organisation concerned, may apply to the Court for a declaration as to the entitlement of the person under this section.

(8) On the hearing of an application under subsection (7), the Court may, in spite of anything in the rules of the organisation concerned, make such order to give effect to its declaration as it considers appropriate.

(9) The orders which the Court may make under subsection (8) include:

(a) an order requiring the organisation concerned to treat a person to whom subsection (1) or (3) applies as being a member of the organisation; and

(b) in the case of a question as to the entitlement under this section of a person to be admitted as a member of an organisation, where the person has previously been removed (whether before or after the commencement of this section) from membership of the organisation—an order that the person be taken to have been a member of the organisation in the period between the removal of the person from membership and the making of the order.

(10) On the making of an order as mentioned in paragraph (9) (a), or as otherwise specified in the order, the person specified in the order becomes, by force of this section, a member of the organisation concerned.

(11) Where:

(a) an order is made as mentioned in paragraph (9) (b); and

(b) the person specified in the order pays to the organisation concerned any amount that the person would have been liable to pay to the organisation if the person had been a member of the organisation during the period specified in the order;

the person shall be taken to have been a member of the organisation during the period specified in the order.

(12) Where an application is made to the Court under this section:

(a) if the application is made otherwise than by the person whose entitlement is in question—the person shall be given an opportunity of being heard by the Court; and

(b) if the application is made otherwise than by the organisation concerned—the organisation shall be given an opportunity of being heard by the Court.

Court may order that persons shall cease to be members of organisations

262. The Court may, on the application of an organisation, order that a person’s membership of that organisation or another organisation shall cease from a day, and for a period, specified in the order.

Request by member for statement of membership

263. An organisation shall, at the request of a person who is a member, give to the person, within 28 days after the request is made, a statement showing:

(a) that the person is a member of the organisation;

(b) where there are categories of membership of the organisation—the category of the person’s membership; and

Resignation from membership

264. (1) A member of an organisation may resign from membership by written notice addressed and delivered to a person designated for the purpose in the rules of the organisation or a branch of the organisation.

(2) A notice of resignation from membership of an organisation takes effect:

(a) where the member ceases to be eligible to become a member of the organisation:

(i) on the day on which the notice is received by the organisation; or

(ii) on the day specified in the notice, which 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 3 months, or such shorter period as is specified in the rules of the organisation, after the notice is 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 an organisation, in relation to a period 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.

(4) A notice delivered to the person mentioned in subsection (1) shall be taken to have been received by the organisation when it was delivered.

(5) A notice of resignation that has been received by the organisation is not invalid because it was not addressed and delivered in accordance with subsection (1).

(6) A resignation from membership of an organisation is valid even if it is not effected in accordance with this section if the member is informed in writing by or on behalf of the organisation that the resignation has been accepted.

Liability for arrears

265. (1) Where a person has ceased to be eligible to become a member of an organisation and that person has not actively participated in the affairs of the organisation since that time, those circumstances shall be a defence to an action by the organisation for arrears of dues payable from the time when the person ceased to be so eligible.

(2) Where such a defence is successful, that person shall be deemed to have ceased to be a member from the time that the person ceased to be so eligible.

Rectification of register of members

266. The Court may at any time, in a proceeding under this Act, order such rectifications of the register of members of an organisation as it considers necessary.

Conscientious objection to membership of organisations

267. (1) Where a natural person:

(a) on application made to a Registrar, satisfies the Registrar:

(i) in the case of a person who is an employer or is otherwise eligible to join an organisation of employers—that the person’s conscientious beliefs do not allow the person to be a member of an association of the kind described in paragraph 188 (1) (a); or

(ii) in the case of a person who is an employee or is otherwise eligible to join an organisation of employees—that the person’s conscientious beliefs do not allow the person to be a member of an association of the kind described in paragraph 188 (1) (b); and

(b) pays the prescribed fee to the Registrar;

the Registrar shall issue to the person a certificate to that effect in the prescribed form.

(2) An appeal does not lie to the Commission against a decision of a Registrar to issue a certificate under subsection (1).

(3) Subject to subsection (4), a certificate under subsection (1) remains in force for the period (not exceeding 12 months) specified in the certificate, but may, as prescribed, be renewed from time to time by a Registrar for such period (not exceeding 12 months) as the Registrar considers appropriate.

(4) Where:

(a) a Registrar becomes aware of a matter that was not known to the Registrar when a certificate was issued by the Registrar to a person under subsection (1); and

(b) if the Registrar had been aware of the matter when the application for the certificate was being considered, the Registrar would not have issued the certificate;

the Registrar may, after giving the person an opportunity, as prescribed, to show cause why the certificate should not be revoked, revoke the certificate.

(5) The holding by an employer of a certificate issued under subsection (1) does not prevent the employer being a party to an industrial dispute.

(6) In this section:

“appropriate organisation”, in relation to a person who has made an application under subsection (1), means the organisation that, in the opinion of the Registrar dealing with the application would, but for the person’s conscientious beliefs, be the appropriate organisation for the person to join having regard to:

(a) in the case of a person who is an employer—the industry in relation to which the person is an employer;

(b) in the case of a person who is otherwise eligible to join an organisation of employers—the business carried on by the person;

(c) in the case of a person who is an employee—the past employment (if any), and the future prospects of employment, of the person; or

(d) in the case of a person who is otherwise eligible to join an organisation of employees—the work done by the person;

“conscientious beliefs” means any conscientious beliefs, whether the grounds for the beliefs are or are not of a religious character and whether the beliefs are or are not part of the doctrine of any religion;

“prescribed fee”, in relation to a person who has made an application under subsection (1), means a fee equal to the annual subscription that would be payable by the person if the person were a member of the appropriate organisation.

Division 10—Records to be kept and lodged by organisations

Records to be kept and lodged by organisations

268. (1) An organisation shall keep, under this section, the following records:

(a) a register of its members, showing the name and postal address of each member and showing whether the member became a member under an agreement entered into under rules made under subsection 202 (1);

(b) a list of the offices in the organisation and each branch of the organisation;

(d) such other records as are prescribed.

(2) An organisation shall:

(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;

(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) An organisation shall lodge in the Industrial Registry once in each year, at such time as is prescribed:

(a) a statutory declaration by the secretary or other prescribed officer 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 paragraphs (1) (b), (c) and (d), certified by statutory declaration by the secretary or other prescribed officer of the organisation to be a correct statement of the information contained in those records.

(4) An organisation shall, within the prescribed period, lodge in the Industrial Registry notification of any change made to the records required to be kept under paragraphs (1) (b), (c) and (d), certified by statutory declaration by the secretary or other prescribed officer of the organisation to be a correct statement of the changes made.

(5) Subject to subsections (6) and (9), the records kept by an organisation under subsection (1) shall be kept at the office of the organisation.

(6) A record referred to in subsection (5) may, so far as it relates to a branch of the organisation, be kept in a separate part or section at the office of the branch.

(7) An organisation may apply to a Registrar for permission to keep the whole or a specified part of a record referred to in subsection (5) at specified premises instead of at the office of the organisation or branch.

(8) A Registrar may, by signed instrument, grant the permission if the Registrar is satisfied that the record or the specified part of the record:

(a) will be under the effective control of the organisation or branch; and

(b) will, in the case of a register of members, be available for inspection in accordance with this section.

(9) While a permission under subsection (8) is in force, a record referred to in the permission may, to the extent specified in the permission, be kept at the premises specified in the permission.

(10) A person authorised by a Registrar may inspect, and make copies of, or take extracts from, the register of members of an organisation, or a part of the register, at such times as the Registrar specifies.

(11) An organisation shall cause its register of members, or each part of the register, to be available, at all relevant times, for the purposes of subsection (10), at the office or premises where the register or part is kept, to a person authorised by the Registrar under that subsection.

(12) Where:

(a) a member of an organisation requests a Registrar to give a direction under this subsection; and

(b) the Registrar is satisfied:

(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 or premises where the register or part is kept; or

(ii) that there are other grounds for giving a direction under this subsection;

the Registrar may direct the organisation to deliver to the Registrar, before a specified day, a copy of the register certified by statutory declaration by the secretary or other prescribed 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 a specified registry.

Organisations to notify particulars of loans, grants and donations

269. (1) An organisation shall, as soon as practicable after the end of each financial year, lodge in the Industrial Registry a statement showing the relevant particulars in relation to each loan, grant or donation of an amount exceeding $1,000 made by the organisation during the financial year.

(2) A statement lodged in the Industrial Registry under subsection (1) shall be signed by an officer of the organisation.

(3) A statement lodged in the Industrial Registry under subsection (1) may be inspected at any registry, during office hours, by a member of the organisation concerned.

(4) The relevant particulars, in relation to a loan made by an organisation,

are:

(a) the amount of the loan;

(b) the purpose for which the loan was required;

(d) except where the loan was made to relieve a member of the organisation, or a dependant of a member of the organisation, from severe financial hardship—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 an organisation, are:

(a) the amount of the grant or donation;

(b) the purpose for which the grant or donation was made; and

(c) except where the grant or donation was made to relieve a member of the organisation, or a dependant of a member of the organisation,

from severe financial hardship—the name and address of the person to whom the grant or donation was made.

(6) Where an organisation is divided into branches:

(a) this section applies in relation to the organisation as if loans, grants or donations made by a branch of the organisation were not made by the organisation; and

(b) this section applies in relation to each of the branches as if the branch were itself an organisation.

(7) For the purposes of the application of this section in accordance with subsection (6) in relation to a branch of an organisation, the members of the organisation constituting the branch shall be taken to be members of the branch.

Division 11—Accounts and audit

Interpretation

270. (1) Where the rules of an organisation change the period constituting the financial year of the organisation, the period between the commencement of the first financial year after the change and the end of the preceding financial year shall, for the purposes of this Division, be taken to be a financial year.

(2) This Division does not apply, in relation to an association that becomes registered as an organisation under this Act, in relation to any financial year before the first financial year of the organisation that begins after the date of registration.

Application of Division in relation to organisations divided into branches

271. (1) Where an organisation is divided into branches:

(a) this Division (other than this section, subsection 279 (5) and section 281) applies in relation to the organisation as if the financial affairs (including transactions) of a branch did not form part of those of the organisation; and

(b) this Division (other than this section, subsection 279 (5) and section 281) applies in relation to each of the branches as if the branch were itself an organisation.

(2) For the purposes of the application of this Division, in accordance with paragraph (1) (b), in relation to a branch of an organisation:

(a) the members of the organisation constituting the branch shall be taken to be members of the branch;

(b) employees of the organisation employed in relation to the branch (whether or not they are also employed in relation to any other branch) shall be taken to be employees of the branch; and

(3) If, on application by an organisation divided into branches, a Registrar is satisfied:

(a) that the committee of management of the organisation has, by the rules of the organisation or established practice not inconsistent with the rules, the management and control of the assets of the organisation (including assets of the branches of the organisation) or otherwise has effective control over the financial management of the organisation; and

(b) that, if subsections (1) and (2) did not apply in relation to the organisation, it would be able to comply with the requirements of this Division;

the Registrar may issue to the organisation a certificate to that effect, and, until the certificate is revoked under subsection (4), subsections (1) and (2) do not apply in relation to the organisation.

(4) A Registrar may at any time, by written notice, revoke a certificate issued to an organisation under subsection (3) if the Registrar is no longer satisfied, in relation to the organisation, of the matters referred to in that subsection.

Organisation to keep proper accounting records

272. (1) An organisation shall:

(a) keep such accounting records as correctly record and explain the transactions and financial position of the organisation, including such records as are prescribed;

(b) keep its accounting records in such a manner as will enable accounts and statements to be prepared from them under section 273; and

(c) keep its accounting records in such a manner as will enable the accounts of the organisation to be conveniently and properly audited under this Division.

(2) Accounting records of an organisation may, so far as they relate to the income and expenditure of the organisation, be kept on a cash basis or accrual basis, at the option of the organisation.

(3) If an organisation keeps the accounting records referred to in subsection (1) on an accrual basis, it may keep the accounting records for its membership subscriptions separately on a cash basis.

(4) An organisation shall retain the accounting records kept under subsection (1) for a period of 7 years after the completion of the transactions to which they relate.

Organisation to prepare accounts etc.

273. (1) As soon as practicable after the end of each financial year, an organisation:

(a) shall cause to be prepared from the accounting records kept by the organisation under subsection 272 (1) in relation to the financial

year, such accounts and other statements, in relation to the financial year, as are prescribed; and

(b) shall include in the accounts (other than accounts prepared in relation to the first financial year of the organisation to which this Division applies) the relevant figures from the accounts prepared by the organisation, under this subsection, in relation to the preceding financial year.

(2) The regulations may provide for the giving of certificates in, or in relation to, accounts or other statements prepared under subsection (1).

Information to be provided to members or Registrar

274. (1) A member of an organisation, or a Registrar, may apply to the organisation for specified prescribed information in relation to the organisation.

(2) An organisation shall, on application made under subsection (1) by a member of the organisation or a Registrar, make the specified information available to the member or Registrar in such manner, and within such time, as is prescribed.

(3) A Registrar may only make an application under subsection (1) at the request of a member of the organisation concerned, and the Registrar shall provide to a member information received because of an application made at the request of the member.

(4) Accounts prepared under section 273 shall include a notice drawing attention to subsections (1), (2) and (3) and setting out those subsections.

Auditors of organisations

275. (1) An organisation shall ensure that there is an auditor of the organisation at any time when an auditor is required for the purposes of the operation of this Division in relation to the organisation.

(2) The position of auditor of an organisation shall be held by:

(a) a person who is a competent person; or

(b) a firm at least one of whose members is a competent person.

(3) A person shall not accept appointment as auditor of an organisation unless the person is a competent person.

(4) A member of a firm shall not accept appointment of the firm as auditor of an organisation unless at least one member of the firm is a competent person.

(5) A person who holds the position of auditor of an organisation shall resign the appointment if the person ceases to be a competent person.

(6) A member of a firm that holds the position of auditor of an organisation shall take whatever steps are open to the member to ensure that the firm resigns the appointment if the member ceases to be a competent

person and is or becomes aware that no other member of the firm is a competent person.

(7) The auditor of an organisation shall use his or her best endeavours to comply with each requirement of this Act that is applicable to the auditor in that capacity.

(8) Subsection (7) does not apply in relation to a requirement if a penalty is provided for a contravention of the provision setting out the requirement.

(9) The regulations may provide that a person is not a competent person for the purposes of this section in relation to all or any organisations unless the person is included in a prescribed class of persons.

Powers and duties of auditors

276. (1) An auditor of an organisation shall inspect and audit the accounting records kept by the organisation in relation to each financial year and shall, within the prescribed period after the end of the year, make a report in relation to the year to the organisation.

(2) An auditor, or a person authorised by an auditor for the purposes of this subsection, is:

(a) entitled at all reasonable times to full and free access to all records and other documents of the organisation relating directly or indirectly to the receipt or payment of moneys, or to the acquisition, receipt, custody or disposal of assets, by the organisation; and

(b) entitled to seek from any officer or employee of the organisation such information and explanations as the auditor or authorised person wants for the purposes of the audit.

(3) Where an auditor authorises a person for the purposes of subsection (2), the auditor shall serve on the organisation a notification that sets out the name and address of the person.

(4) An auditor shall, in a report under this section in relation to a financial year, state:

(a) whether in the auditor’s opinion:

(i) there were kept by the organisation in relation to the year satisfactory accounting records, including:

(a) records of the sources and nature of the income of the organisation (including income from members); and

(b) records of the nature and purposes of the expenditure of the organisation; and

(ii) the accounts and statements prepared under section 273 in relation to the year were properly drawn up so as to give a true and fair view of:

(a) the financial affairs of the organisation as at the end of the year; and

(b) the income and expenditure, and any surplus or deficit, of the organisation for the year; and

(b) whether all the information and explanations that, under subsection (2), officers or employees of the organisation were required to provide were provided;

and, in addition, the auditor shall state in the report particulars of any deficiency, failure or shortcoming in relation to a matter referred to in paragraph (a) or (b).

(5) If:

(a) an auditor, in the course of performing duties as auditor of an organisation, becomes aware that there has been a breach of this Act; and

(b) the auditor is of the opinion that the matter cannot be adequately dealt with by comment in a report;

the auditor shall immediately report the matter, in writing, to a Registrar.

Fees and expenses of auditors

277. An organisation shall pay the reasonable fees and expenses of an auditor of the organisation.

Removal of auditor from office

278. An auditor of an organisation may only be removed during the term of appointment of the auditor:

(a) where the auditor was appointed by the committee of management of the organisation—by resolution passed at a meeting of the committee by an absolute majority of the members of the committee; or

(b) where the auditor was appointed by a general meeting of the members of the organisation—by resolution passed at a general meeting by a majority of the members of the organisation voting at the meeting.

Copies of report and audited accounts to be provided to members and presented to meetings

279. (1) An organisation shall 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 statements prepared under section 273 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 in the Industrial Registry;

(b) the auditor certifies that the summary is, in the auditor’s opinion, a fair and accurate summary of the report, accounts and statements;

(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; and

(d) where particulars of a deficiency, failure or shortcoming in relation to a matter referred to in subsection 276 (4) 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), shall be provided within 56 days (or such longer period as a Registrar allows) after the making to the organisation of the report concerned.

(4) Where an organisation publishes a journal of the organisation that is available to the members of the organisation free of charge, the organisation may comply with subsection (1):

(a) by publishing in the journal the report, accounts and statements referred to in that subsection; or

(b) by preparing a summary as described in subsection (2), complying with paragraphs (2) (a), (b), (c) and (d) in relation to the summary, and publishing the summary in the journal.

(5) Where a branch of an organisation publishes a journal of the branch that is available to the members of the branch free of charge, the organisation may comply with subsection (1) in relation to those members:

(a) by publishing in the journal the report, accounts and statements referred to in that subsection; or

(b) by preparing a summary as described in subsection (2), complying with paragraphs (2) (a), (b), (c) and (d) in relation to the summary, and publishing the summary in the journal.

(6) Subject to subsection (7), an organisation shall cause the report, accounts and statements referred to in subsection (1) to be presented:

(a) within the period (in this subsection and subsection (7) called the “relevant period”) starting on the eighth day after the report, accounts and statements are, or the summary referred to in subsection (2) is, supplied to the members and ending 28 days (or such longer period as a Registrar allows) after the end of the period referred to in subsection (3)—to a general meeting of the members of the organisation or a meeting of the committee of management of the organisation; or

(b) if such a meeting is not due to be held within the relevant period—to the first meeting of the committee of management held after the relevant period.

(7) If:

(a) the report sets out particulars of a deficiency, failure or shortcoming in relation to a matter referred to in subsection 276 (4); and

(b) neither a general meeting of the members of the organisation nor a meeting of the committee of management of the organisation is due to be held within the relevant period;

the organisation shall, within the relevant period, cause the report, accounts and statements referred to in subsection (1) to be presented to a meeting of the committee of management convened for the purpose.

Reports etc. to be lodged in Industrial Registry

280. (1) An organisation shall, within 14 days (or such longer period as a Registrar allows) after the relevant meeting referred to in subsection 279 (6) or (7) (whichever is applicable), lodge in the Industrial Registry:

(a) copies of the report, accounts and statements presented to the meeting; and

(b) a certificate by the secretary, or other prescribed officer, of the organisation that the documents lodged are copies of the documents presented to the meeting.

(2) Subject to subsection (3), a Registrar shall:

(a) where the documents lodged in the Industrial Registry under subsection (1) include a report of an auditor setting out particulars of a deficiency, failure or shortcoming in relation to a matter referred to in subsection 276 (4)—investigate the deficiency, failure or shortcoming; and

(b) where for any other reason the Registrar considers that a matter revealed in the documents should be investigated—investigate the matter.

(3) The Registrar is not required to investigate the deficiency, failure or shortcoming if:

(a) it consists solely of the fact that the organisation concerned has kept accounting records for its membership subscriptions separately on a cash basis as provided in subsection 272 (3); or

(b) after consultation with the organisation concerned and the auditor, the Registrar is satisfied that the deficiency, failure or shortcoming is trivial or will be remedied in the following financial year.

(4) Where, having regard to matters that have been brought to notice in the course of, or because of, an investigation under subsection (2), a Registrar forms the opinion that there are grounds for investigating the finances or the financial administration of the organisation concerned, the Registrar may make the further investigation.

(5) Where documents have been lodged in the Industrial Registry under subsection (1), at least the relevant number of members of the organisation concerned may request the Registrar to investigate the finances and the financial administration of the organisation.

(6) On receipt of a request under subsection (5), a Registrar shall investigate the finances and the financial administration of the organisation concerned.

(7) For the purpose of making an investigation under subsection (2), (4) or (6), a Registrar may, by written notice, require an officer or employee of the organisation concerned:

(a) to provide the Registrar with specified information relevant to the investigation; or

(b) to attend before the Registrar, so that the Registrar may put to the officer or employee questions relating to matters relevant to the investigation and to produce to the Registrar all records and other documents in the custody, or under the control, of the officer or employee relating to the matters.

(8) If, at the conclusion of an investigation under subsection (2), (4) or (6), a Registrar is satisfied that the organisation concerned has contravened:

(a) subsection (1) or any other provision of this Act or a provision of the regulations; or

(b) a rule of the organisation relating to the finances or financial administration of the organisation;

the Registrar shall notify the organisation accordingly, and shall include in the notification a request that the organisation take specified action, within a specified period, to rectify the matter.

(9) Where a Registrar has given a notification to an organisation under subsection (8), the Registrar shall not take proceedings under this Act against the organisation in relation to a matter the subject of the notification unless the organisation has refused or failed to comply with the request made in the notification.

(10) In this section:

“relevant number”, in relation to an organisation, means:

(a) if the organisation has more than 5,000 members—250; or

(b) in any other case—5% of the number of members of the organisation.

Organisation may lodge accounts etc. of all branches

281. (1) The rules of a relevant branch of a relevant organisation may provide that this section applies in relation to the branch or otherwise provide for the relevant documents of the branch to be lodged under subsection (3).

(2) Where the rules of each relevant branch of the organisation provide as mentioned in subsection (1) and the financial years in relation to all the relevant branches end on the same day:

(a) the following provisions of this section apply in relation to the organisation; and

(b) subsection 280 (1) does not apply to a relevant branch of the organisation.

(3) The organisation shall, within 14 days (or such longer period as a Registrar allows) after the relevant day, lodge in the Industrial Registry:

(a) copies of the relevant documents of each relevant branch of the organisation that were presented to a meeting of the committee of management, or general meeting of members, of the branch under subsection 279 (6) or (7); and

(b) a certificate by the secretary, or other prescribed officer, of the branch that the documents lodged are copies of the relevant documents that were presented.

(4) Where the organisation contravenes subsection (3), each relevant branch of the organisation shall, within 14 days (or such longer period as a Registrar allows) after the end of the period referred to in that subsection, lodge in the Industrial Registry:

(a) copies of the relevant documents of the branch that were presented to a meeting of the committee of management, or general meeting of members, of the branch under subsection 279 (6) or (7); and

(b) a certificate by the secretary, or other prescribed officer, of the branch that the documents lodged are copies of the relevant documents that were presented.

(5) Subsections 280 (2) to (10) (inclusive) apply in relation to a relevant branch of the organisation as if the references in those subsections to documents lodged in the Industrial Registry under subsection 280 (1) were references to relevant documents in relation to the branch lodged:

(a) where subsection (4) of this section does not apply in relation to the branch—by the organisation under subsection (3) of this section; or

(b) where subsection (4) of this section applies in relation to the branch—by the branch under that subsection.

(6) In this section:

“relevant branch”, in relation to a relevant organisation, means each part of an organisation to which this Division (other than this section, section 271 and subsection 279 (5)) applies under paragraph 271 (1) (a) or (b), other than, in relation to a particular financial year, a part of the organisation in relation to which a certificate has been issued under subsection 285 (1) in relation to the year;

“relevant day”, in relation to a relevant organisation, means the day on which relevant documents in relation to a relevant branch of the organisation in relation to a financial year are presented to a general meeting of the members, or a committee of management, of the branch under subsection 279 (6) or (7), whichever is applicable, being a day on or before which relevant documents in relation to

the financial year are or have been so presented by each of the other relevant branches of the organisation;

“relevant documents”, in relation to a relevant branch, means the report, accounts and statements referred to in subsection 279 (1);

“relevant organisation” means an organisation that is divided into branches, other than an organisation in relation to which a certificate issued by a Registrar under subsection 271 (3) is in force.

Organisation to forward notices etc. to auditor

282. An organisation shall forward to the auditor of the organisation any notice of, and any other communication relating to, a meeting of the organisation, or the committee of management of the organisation, at which the report of the auditor, or any accounts or statements to which the report relates, are to be presented, being a notice or other communication that a member of the organisation, or the committee of management of the organisation, as the case may be, would be entitled to receive.

Auditor entitled to attend meetings at which report presented

283. (1) An auditor, or a person authorised by an auditor for the purposes of this section, is entitled to attend, and be heard at, any part of a meeting of an organisation, or the committee of management of an organisation, at which:

(a) the report of the auditor, or any accounts or statements to which the report relates, are to be presented or considered; or

(b) there is to be conducted any business of the meeting that relates to:

(i) the auditor in that capacity; or

(ii) a person authorised by the auditor, in the capacity of a person so authorised;

as the case may be.

(2) Where an auditor authorises a person for the purposes of this section, the auditor shall serve on the organisation a notification, which sets out the name and address of the person.

Auditors and other persons to enjoy qualified privilege in certain circumstances

284. (1) An auditor of an organisation is not, in the absence of malice, liable to an action for defamation at the suit of a person in relation to a statement that the auditor makes in the course of duties as auditor, whether the statement is made orally or in writing.

(2) A person is not, in the absence of malice, liable to an action for defamation at the suit of a person in relation to the publishing of a document prepared by an auditor of an organisation in the course of duties as auditor and required by or under this Act to be lodged with a Registrar.

(3) This section does not limit or affect any right, privilege or immunity that a defendant has in an action for defamation.

Accounts and audit where income of organisation less than certain amount

285. (1) If, on the application of an organisation made after the end of a financial year, a Registrar is satisfied that the income of the organisation for the year did not exceed $10,000 or, in the case of a financial year that, because of subsection 270 (1), is a period other than 12 months, did not exceed such amount as the Registrar considers appropriate in the circumstances, the Registrar shall issue to the organisation a certificate to that effect.

(2) Where a certificate is issued under subsection (1) in relation to an organisation in relation to a financial year:

(a) the following provisions of this section apply in relation to the organisation in relation to the year;

(b) except as provided in paragraph (c), this Division continues to apply in relation to the organisation in relation to the year; and

(3) This Division (other than this section) applies to the organisation in relation to the year as if:

(a) a reference to accounts and statements prepared or to be prepared under section 273 were a reference to accounts and statements prepared under subsection (5) of this section;

(b) the reference in subsection 274 (4) to accounts prepared under section 273 were a reference to accounts prepared under subsection (5) of this section; and

(c) the reference in subsections 280 (2) and (5) to subsection 280 (1) were a reference to subsection (9) of this section.

(4) Section 327 (other than subsection (1)) applies to the organisation in relation to the financial year as if:

(a) a reference in subsections 327 (3) and (4) to subsections 279 (6) and (7) were a reference to subsection (7) of this section;

(b) the reference in subsection 327 (5) to subsection 279 (1) were a reference to subsection (7) of this section; and

(c) there were omitted from subsection 327 (5) the words “or in a summary of the kind referred to in subsection 279 (2),”.

(5) As soon as practicable after the issue of the certificate under subsection (1), the organisation shall:

(a) cause to be prepared, from the accounting records kept under subsection 272 (1) in relation to the year, the prescribed accounts and other statements in relation to the year; and

(b) include in the accounts (other than accounts prepared in relation to the first financial year of the organisation to which this Division applies) the relevant figures from the accounts prepared by the organisation, under this subsection or subsection 273 (1), in relation to the preceding financial year.

(6) The regulations may make provision with respect to the giving of certificates in, or in relation to, accounts or other statements prepared under subsection (5).

(7) After the making to the organisation of the report of the auditor under section 276 in relation to the auditor’s inspection and audit of the accounting records kept by the organisation in relation to the year, and before the end of the financial year immediately following the year, the organisation shall cause a copy of the report, together with copies of the accounts and statements prepared under subsection (5) to which the report relates, to be presented to a meeting of the members of the organisation.

(8) Where a member of an organisation requests the organisation to provide to the member a copy of the report, accounts and statements referred to in subsection (7), the organisation shall provide a copy of each of the documents to the member, free of charge, within 14 days after receiving the request.

(9) The organisation shall, within 90 days (or such longer period as a Registrar allows) after the making to the organisation of the report under section 276, lodge with the Registrar copies of the report and the accounts and statements referred to in subsection (7) of this section together with a certificate by the secretary, or other prescribed officer, of the organisation that the information contained in the accounts and statements is correct.

Division 12—Miscellaneous

Organisation may authorise inspection

286. (1) An officer of an organisation authorised in writing by the secretary of the organisation or of a branch of the organisation to act under this subsection may, for the purpose of ensuring the observance of an award or an order of the Commission binding the organisation:

(a) at any time during working hours, but subject to any conditions provided by the award or order, enter prescribed premises that are specified in the authority or occupied by an employer specified in the authority;

(b) inspect or view any work, material, machinery, appliance, article, document or other thing on the prescribed premises; and

(c) interview, on the prescribed premises, an employee who is a member, or is eligible to be a member, of the organisation;

but an officer acting under this subsection shall not hinder or obstruct an employee in the performance of work during working time.

(2) If an officer of an organisation proposing to enter, or being on, premises under subsection (1) is required by the occupier to produce evidence of authority to enter or be on the premises, the officer is not entitled to enter or remain on the premises without producing to the occupier the authority referred to in subsection (1).

(3) In this section:

“officer”, in relation to an organisation, means a person holding an office in, or employed by, the organisation or a branch of the organisation;

“prescribed premises”, in relation to an organisation bound by an award or an order of the Commission, means:

(a) premises in which work to which the award or order applies is being carried on; or

(b) premises occupied by an employer bound by the award or order.

Right to participate in certain ballots

287. Subject to reasonable provisions in the rules of an organisation in relation to enrolment, every financial member of the organisation has a right to vote at any ballot taken for the purpose of submitting a matter to a vote of the members of the organisation, or of a branch, section or other division of the organisation in which the member is included.

Requests by members for information concerning elections and certain ballots

288. A financial member of an organisation may request the returning officer:

(a) in relation to an election for an office in the organisation or a branch of the organisation; or

(b) in relation to a ballot taken for the purpose of submitting a matter to a vote of the members of an organisation or a branch of the organisation;

to provide to the member specified information for the purpose of determining whether there has been an irregularity in relation to the election or ballot, and the returning officer shall comply with the request.

Providing copy of rules on request by member

289. Where a member of an organisation:

(a) requests the secretary, or a person performing (in whole or part) the duties of secretary, of the organisation or a branch of the organisation, to provide to the member a copy of the rules of the organisation or branch; and

(b) pays or tenders to the secretary or other person such amount (not exceeding the prescribed amount) as the secretary or other person requires;

the secretary or other person shall, within 7 days after the payment or tender of the amount, provide to the member:

(d) a copy of those rules as in force at an earlier time, together with a copy of each amendment of the rules made since that time and before the time of the request.

Disputes between organisations and members

290. (1) A dispute between an organisation and any of its members shall be decided under the rules of the organisation.

(2) Any fine, fee, levy or dues payable to an organisation by a member in relation to a period after the organisation was registered may be sued for and recovered, in the name of the organisation, as a debt due to the organisation, in a court of competent jurisdiction.

(3) A court of competent jurisdiction may, on application brought in the name of an organisation, order the payment by a member of any contribution (not exceeding $20) to a penalty incurred or money payable by the organisation under an award or order.

Certificate as to membership of organisation

291. A certificate of a Registrar stating that a specified person was at a specified time a member or officer of a specified organisation or a specified branch of a specified organisation is, in all courts and proceedings, evidence that the facts are as stated.

List of officers to be evidence

292. A list of the officers of an organisation or a branch of an organisation lodged in the Industrial Registry on behalf of the organisation, or a copy of any such list certified by a Registrar, is evidence that the persons named in the list were, on the day when the list was lodged, officers of the organisation or branch.

Schedule 4—Complementary registration systems

293. In addition to the preceding provisions of this Part, Schedule 4 applies in relation to organisations that are divided into branches, but applies only in relation to branches whose operations are confined to a prescribed State.

PART X—CANCELLATION OF REGISTRATION

Application for cancellation of registration

294. (1) An organisation or person interested, or the Minister, may apply to the Court for an order cancelling the registration of an organisation on the ground that:

(a) the conduct of:

(i) the organisation (in relation to its continued breach of an award or an order of the Commission or its continued failure to ensure that its members comply with and observe an award or an order of the Commission or in any other respect); or

(ii) a substantial number of the members of the organisation (in relation to their continued breach of an award or an order of the Commission or in any other respect);

has prevented or hindered the achievement of an object of this Act;

(b) the organisation, or a substantial number of the members of the organisation or of a section or class of members of the organisation, has engaged in industrial action that has prevented, hindered or interfered with:

(i) trade or commerce between Australia and a place outside Australia;

(ii) trade or commerce between the States;

(iii) trade or commerce within a Territory, between a State and a Territory or between 2 Territories; or

(iv) the provision of any public service by the Commonwealth or a State or Territory or an authority of the Commonwealth or a State or Territory; or

(c) the organisation, or a substantial number of the members of the organisation or of a section or class of members of the organisation, has or have been, or is or are, engaged in 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.

(2) An organisation in relation to which an application is made under subsection (1) shall be given an opportunity of being heard by the Court.

(3) Where the Court:

(a) finds that a ground of the application has been established; and

(b) does not consider that it would be unjust to do so having regard to the degree of gravity of the matters constituting the ground and the action (if any) that has been taken by or against the organisation in relation to the matters;

the Court shall, subject to subsection (4) and section 295, cancel the registration of the organisation.

(4) Where:

(a) the Court finds that a ground of the application has been established; and

(b) that finding is made, wholly or mainly, because of the conduct of a particular section or class of members of the organisation;

the Court may, if it considers it just to do so, instead of cancelling the registration of the organisation under subsection (3), by order:

(c) determine alterations of the eligibility rules of the organisation so as to exclude from eligibility for membership of the organisation persons belonging to the section or class; or

(d) where persons belonging to the section or class are eligible for membership under an agreement of the kind referred to in section 202—declare that the persons are excluded from eligibility for membership in spite of anything in the agreement.

(5) Where the Court cancels the registration of an organisation, the Court may direct that an application by the former organisation to be registered as an organisation shall not be dealt with under this Act before the end of a specified period.

(6) An alteration of rules determined by order under subsection (4) takes effect on the date of the order or on such other day as is specified in the order.

Orders where cancellation of registration deferred

295. (1) Where the Court finds that a ground of an application under subsection 294 (1) has been established, the Court may, if it considers it just to do so, instead of cancelling the registration of the organisation concerned under subsection 294 (3) or making an order under subsection 294 (4), exercise one or more of the powers set out in subsection (2) of this section.

(2) The powers that may be exercised by the Court, by order, under subsection (1) are as follows:

(a) the power to suspend, to the extent specified in the order, any of the rights, privileges or capacities of the organisation or of all or any of its members, as such members, under this Act or any other Act or under awards or orders made under this Act or any other Act;

(b) the power to give directions as to the exercise of any rights, privileges or capacities that have been suspended;

(c) the power to make provision restricting the use of the funds or property of the organisation or a branch of the organisation, and for the control of the funds or property for the purpose of ensuring observance of the restrictions.

(3) Where the Court exercises a power set out in subsection (2), it shall defer the determination of the question whether to cancel the registration of the organisation concerned until:

(a) the orders made in the exercise of the power cease to be in force; or

(b) on application by a party to the proceeding, the Court 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 is earlier.

(4) An order made in the exercise of a power set out in subsection (2) has effect in spite of anything in the rules of the organisation concerned or a branch of the organisation.

(5) An order made in the exercise of a power set out in subsection (2):

(a) may be revoked by the Court, 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) such longer period after it came into force as is ordered by the Court on application by a party to the proceeding made while the order remains in force.

Cancellation of registration on technical grounds etc.

296. A designated Presidential Member may cancel the registration of an organisation:

(a) on application by the organisation made under the regulations;

(b) on application by an organisation or person interested or by the Minister, if the Presidential Member has satisfied himself or herself, as prescribed, that the organisation:

(i) was registered by mistake;

(ii) in the case of an organisation of employers whose members include persons referred to in subparagraph 188 (1) (a) (ii) or (iii)—is no longer effectively representative of the members who are employers; or

(iii) in the case of an organisation of employees whose members include persons referred to in subparagraph 188 (1) (b) (ii)—is no longer effectively representative of the members who are employees; or

(c) on the Presidential Member’s own motion, if the Presidential Member has satisfied himself or herself, as prescribed, that the organisation is defunct.

Cancellation to be recorded

297. Where the registration of an organisation under this Act is cancelled, the Industrial Registrar shall enter the cancellation, and the date of cancellation, in the register kept under paragraph 63 (1) (a).

Consequences of cancellation of registration

298. The cancellation of the registration of an organisation under this Act has the following consequences:

(a) the organisation ceases to be an organisation and a body corporate under this Act, but does not because of the cancellation cease to be an association;

(b) the cancellation does not relieve the association or any of its members from any penalty or liability incurred by the organisation or its members before the cancellation;

(c) from the cancellation, the association and its members are not entitled to the benefits of any award or order of the Commission that bound the organisation or its members;

(d) a designated Presidential Member may, on application by an organisation or person interested, make such order as the Presidential Member considers appropriate about the other effects (if any) of such an award or order on the association and its members;

(e) 21 days after the cancellation, such an award or order ceases, subject to any order made under paragraph (d), in all other respects to have effect in relation to the association and its members;

(f) the Court 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;

(g) the property of the organisation is, subject to any order made under paragraph (f), the property of the association and shall be held and applied for the purposes of the association under the rules of the organisation so far as they can still be carried out or observed.

PART XI—OFFENCES

Offences in relation to Commission

299. (1) A person shall not:

(a) wilfully insult or disturb a member of the Commission in the exercise of powers, or the performance of functions, as a member;

(b) interrupt the proceedings of the Commission;

(c) use insulting language towards a member of the Commission exercising powers, or performing functions, as a member; or

(d) by writing or speech use words calculated:

(i) to influence improperly a member of the Commission or a witness before the Commission; or

(ii) to bring a member of the Commission or the Commission into disrepute.

Penalty:

(a) in the case of a natural person—$500 or imprisonment for 6 months, or both; and

(b) in the case of a body corporate—$1,000.

(2) A reference in subsection (1) to the Commission or a member of the Commission includes a reference to a person authorised to take evidence on behalf of the Commission.

Attendance at compulsory conferences

300. A person directed under subsection 119 (1) to attend a conference shall attend the conference, and continue to attend, as directed by the person presiding over the conference.

Penalty: $1,000.

Intimidation etc.

301. A person who:

(a) threatens, intimidates or coerces another person; or

(b) prejudices another person;

because the other person:

(d) produced, or proposed to produce, documents to the Commission; or

(e) appeared, or proposed to appear, as a witness before the Commission;

is guilty of an offence punishable on conviction by:

(f) in the case of a natural person—a fine not exceeding $500 or imprisonment for a period not exceeding 6 months, or both; and

(g) in the case of a body corporate—a fine not exceeding $1,000.

Creating disturbance near Commission

302. A person shall not create or continue a disturbance, or take part in creating or continuing a disturbance, in or near a place at which the Commission is sitting.

Penalty: $500 or imprisonment for 6 months, or both.

Offences by witnesses

303. (1) A person who has been summoned to appear, or who has appeared, before the Commission as a witness shall not, without reasonable excuse:

(a) disobey the summons to appear;

(b) refuse or fail to be sworn or make an affirmation;

(d) refuse or fail to produce a document that the person is required by the Commission to produce.

Penalty: $500 or imprisonment for 6 months, or both.

(2) A reference in subsection (1) to the Commission includes a reference to a person authorised to take evidence on behalf of the Commission.

False representation of appointment as inspector

304. A person shall not falsely represent himself or herself to be an inspector.

Penalty: $500 or imprisonment for 6 months, or both.

Obstructing inspector

305. A person shall not:

(a) hinder or obstruct an inspector in the exercise of powers, or the performance of functions, as an inspector;

(b) without reasonable excuse, contravene a requirement made by an inspector under subparagraph 86 (1) (b) (iv) or subsection 86 (2); or

(c) make, to an inspector exercising powers or performing functions as an inspector, a statement, whether orally or in writing, that is to the person’s knowledge false or misleading in a material particular.

Penalty:

(a) in the case of a natural person—$500 or imprisonment for 6 months, or both; and

(b) in the case of a body corporate—$1,000.

Obstructing inspection

306. A person shall not:

(a) hinder or obstruct a person in the exercise of a power under subsection 134 (1) or 286 (1); or

(b) make, to a person exercising a power under subsection 134 (1) or 286 (1), a statement, whether orally or in writing, that is to the person’s knowledge false or misleading in a material particular.

Penalty:

(a) in the case of a natural person—$500 or imprisonment for 6 months, or both; and

(b) in the case of a body corporate—$1,000.

Application for secret ballot in relation to industrial action

307. A person shall not join with other persons in making an application under subsection 136 (1) if the application includes a statement that is to the person’s knowledge false or misleading in a material particular.

Penalty: $1,000.

Compliance with directions in relation to secret ballot

308. An organisation or person (other than the Industrial Registrar) to whom a direction has been given under subsection 138 (1) shall comply with the direction.

Penalty:

(a) in the case of a natural person—$500 or imprisonment for 6 months, or both; and

(b) in the case of a body corporate—$1,000.

Organisation to notify assignment etc. of member’s business

309. Where, under a rule made under subsection 195 (2), an organisation is notified that:

(a) the business, or part of the business, of a member of the organisation has been assigned or transferred to a person who is not a member of the organisation; or

(b) such a person has succeeded to the business, or part of the business, of a member of the organisation;

the organisation shall, within 28 days after being notified, give written notice of the assignment, transfer or succession to:

(d) any organisation of employees bound by an award or an order of the Commission that also bound the member in relation to the business or part of the business.

Penalty: $500.

Failure to provide information in relation to election

310. Where an organisation or branch of an organisation contravenes subsection 214 (1), the organisation is guilty of an offence punishable, on conviction, by a fine not exceeding $1,000 plus $250 for each complete week in the period starting on the day prescribed for the purposes of that subsection or the later day allowed by the Industrial Registrar, as the case requires, and ending on:

(a) if the prescribed information is lodged in the Industrial Registry before the day on which the organisation is convicted—the day on which the information is lodged; or

(b) in any other case—the day on which the organisation is convicted.

Contravention of awards and orders

311. An organisation or person shall not wilfully contravene an award or an order of the Commission.

Penalty:

(a) in the case of a natural person—$500; and

(b) in the case of a body corporate—$1,000.

Incitement to boycott award forbidden

312. (1) A person who is an officer or agent of an organisation or branch of an organisation bound by an award shall not:

(a) advise, encourage or incite a member to refrain from working in accordance with the award;

(b) in the case of an agreement, employment or work to which the award applies—advise, encourage or incite a member to refrain from working with an employer bound by the award;

(d) in the case of an agreement, employment or work to which the award applies—prevent or hinder a member from working with an employer bound by the award;

(e) advise, encourage or incite a member to fail to comply with the award;

(f) prevent or hinder a member from complying with the award;

(g) advise, encourage or incite a member to retard, obstruct or limit the progress of work to which the award applies by go slow methods; or

(h) advise, encourage or incite a member:

(i) to perform work to which the award applies in a manner different from the customary manner in relation to the work; or

(ii) to adopt a practice in relation to the work;

that would, or would be likely to, result in a limitation or restriction of output or production.

Penalty: $500.

(2) Subsection (1) applies to advice, encouragement, incitement, prevention or hindrance in relation to employment or work with or for a particular employer or of a particular kind.

(3) In a prosecution under this section it is a defence to prove that the conduct charged:

(a) was unrelated to the terms and conditions of employment prescribed by the award; or

(b) was related to a failure or proposed failure by an employer to observe the award.

(4) In this section:

“award” includes an award or order prescribing terms and conditions of employment made under a law of the Commonwealth, and also includes provisions in force under an award or order;

“member” means a member of an organisation that is bound by the award;

“working” includes:

(a) entering into a written agreement for work;

(b) accepting employment; and

Refusal or failure to comply with direction in relation to election

313. A person shall not:

(a) refuse or fail to comply with a direction under subsection 215 (1) so far as the person is capable of complying with the direction; or

(b) hinder or obstruct:

(i) an electoral official in the performance of functions in relation to an election for an office in, or in a branch of, an organisation; or

(ii) any other person in complying with a direction under that subsection.

Penalty:

(a) in the case of a natural person—$500 or imprisonment for 6 months, or both; and

(b) in the case of a body corporate—$1,000.

Failure to preserve ballot papers etc.

314. (1) Where an organisation or branch of an organisation contravenes section 217, the organisation is guilty of an offence punishable, on conviction, by a fine not exceeding $1,000.

(2) An officer or employee of an organisation or branch of an organisation shall not contravene section 217.

Penalty for a contravention of this subsection: $500 or imprisonment for 6 months, or both.

Offences in relation to elections

315. (1) A person shall not, without lawful authority or excuse, in relation to an election for an office in, or in a branch of, an 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;

(b) destroy, deface, alter, take or otherwise interfere with a nomination paper, ballot paper or envelope;

(i) into a ballot box or other ballot receptacle;

(ii) into the post; or

(iii) to a person receiving ballot papers for the purposes of the election;

(d) record a vote that the person is not entitled to record;

(e) record more than one vote;

(f) forge a nomination paper, ballot paper or envelope, or utter a nomination paper, ballot paper or envelope that the person knows to be forged;

(g) provide a ballot paper;

(h) 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 shall not, without lawful authority or excuse, in relation to an election for an office in, or in a branch of, an 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;

(b) any vote or omission to vote;

(d) any promise of any vote, omission, support or opposition.

(3) A person (in this subsection called the “relevant person”) shall not, without lawful authority or excuse, in relation to an election for an office in, or in a branch of, an 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 election, show to another person, or permit another person to have access to, a ballot paper used in the election, otherwise than in the performance of the duties.

(4) A person shall not, without lawful authority or excuse, use, cause, inflict or procure any violence, injury, punishment, damage, loss or disadvantage to another person because the other person has lodged an objection under subsection 212 (1).

Penalty: $500 or imprisonment for 6 months, or both.

Obstructing Industrial Registrar in relation to election inquiry

316. A person shall not:

(a) contravene a requirement made under section 220; or

(b) hinder or obstruct the Industrial Registrar, or a person acting on his or her behalf, in the exercise of powers under section 220.

Penalty:

(a) in the case of a natural person—$500 or imprisonment for 6 months, or both; and

(b) in the case of a body corporate—$1,000.

Offences in relation to ballot

317. (1) Where a person conducting a ballot requires an officer or employee of an organisation or branch of an organisation to provide or make available, for the purposes of the ballot, a register or list of:

(a) in the case of an officer of the organisation—the members of:

(i) the organisation or a branch of the organisation; or

(ii) a section or class of the members of the organisation or a branch of the organisation; and

(b) in the case of an officer of a branch of the organisation—the members of:

(i) the branch; or

(ii) a section or class of the members of the branch;

the officer or employee shall promptly comply with the requirement so far as he or she is capable.

(2) A person shall not, without lawful authority or excuse, in relation to a ballot:

(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;

(b) destroy, deface, alter, take or otherwise interfere with a ballot paper or envelope;

(i) into a ballot box or other ballot receptacle;

(ii) into the post; or

(iii) to a person receiving ballot papers for the purposes of the ballot;

(d) record a vote that the person is not entitled to record;

(e) record more than one vote;

(f) forge a ballot paper or envelope, or utter a ballot paper or envelope that the person knows to be forged;

(g) provide a ballot paper;

(h) obtain or have possession of a ballot paper; or

(j) destroy, take, open or otherwise interfere with a ballot box or other ballot receptacle.

(3) A person shall not, without lawful authority or excuse, in relation to a ballot:

(a) hinder or obstruct the taking of the ballot;

(b) use any form of intimidation to prevent from voting, or to influence the vote of, a person entitled to vote at the ballot;

(c) threaten, offer or suggest, or use, cause, inflict or procure, any violence, injury, punishment, damage, loss or disadvantage because of, or to induce:

(i) any vote or omission to vote;

(ii) any suppport of, or opposition to, voting in a particular manner; or

(iii) any promise of any vote, omission, support or opposition; or

(d) counsel or advise a person entitled to vote to refrain from voting.

(4) A person (in this subsection called the “relevant person”) shall not, without lawful authority or excuse, in relation to a ballot:

(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 the duties.

Penalty for a contravention of this section: $500 or imprisonment for 6 months, or both.

(5) In this section:

“ballot” means:

(a) a ballot ordered under section 135 or 136; or

(b) a ballot conducted under section 243.

Failure to comply with requirement made in relation to amalgamation

318. An officer or employee of an organisation or branch of an organisation shall comply with a requirement made under section 245.

Penalty: $500 or imprisonment for 6 months, or both.

Failure to give statement as to membership of organisation

319. An organisation shall not contravene section 263.

Penalty: $500.

Offences in relation to conscientious objectors

320. (1) An employer shall not:

(a) dismiss an employee who is a conscientious objector, injure such an employee in his or her employment, or alter the position of such an employee to the employee’s prejudice, because the employee is not a member of an organisation;

(b) threaten to dismiss an employee who is a conscientious objector, threaten to injure such an employee in his or her employment, or threaten to alter the position of such an employee to the employee’s prejudice, with intent to coerce the employee to join an organisation; or

(2) An organisation shall not:

(a) advise, encourage or incite an employer to take action in relation to a person that would, if taken, contravene subsection (1);

(b) take, or threaten to take, industrial action against an employer with intent to coerce the employer to take action in relation to a person that would, if taken, contravene subsection (1); or

(c) take, or threaten to take, action having the effect, directly or indirectly, of prejudicing a person who is a conscientious objector in his or her employment, with intent to coerce the person to join an organisation.

(3) An organisation shall not:

(a) injure:

(i) an employer who is a conscientious objector; or

(ii) a person who is a conscientious objector and, although not an employer, is otherwise eligible to join an organisation of employers;

in his or her business with intent to coerce the employer or person to join an organisation; or

(b) advise, encourage or incite an organisation of employees to take industrial action against:

(i) an employer who is a conscientious objector; or

(ii) a person who is a conscientious objector and, although not an employer, is otherwise eligible to join an organisation of employers;

with intent to coerce the employer or person to join an organisation.

(4) A person who contravenes subsection (1), (2) or (3) is guilty of an offence punishable, on conviction, by a penalty not exceeding a fine of $1,000 for the first day on which the action constituting the offence takes place plus $500 for each subsequent day on which the action continues.

(5) In a prosecution for an offence against subsection (4), it is not necessary for the prosecutor to prove the defendant’s reason for the action charged nor the intent with which the defendant took the action charged, but it is a defence to the prosecution if the defendant proves that the action was not motivated (whether in whole or part) by the reason, nor taken with the intent (whether alone or with another intent), specified in the charge.

(6) For the purposes of this section, action done by:

(a) the committee of management of an organisation or branch of an organisation;

(b) an officer, employee or agent of an organisation or branch of an organisation acting in that capacity;

(c) a member or group of members of an organisation or branch of an organisation acting under the rules of the organisation or branch; or

(d) a member of an organisation, who performs the function of dealing with an employer on behalf of the member and other members of the organisation, acting in that capacity;

shall be taken to have been done by the organisation.

(7) Where an employer is convicted of an offence against subsection (4) constituted by dismissing an employee, the Court may order the employer:

(a) to reinstate the person to the position that the person occupied immediately before the dismissal or a position no less favourable than the position; and

(b) to pay the person the whole or part of the wages lost by the person because of the dismissal.

(8) In this section:

“conscientious objector” means:

(a) a person in relation to whom there is in force a certificate under subsection 267 (1); or

(b) a person who has applied for a certificate under subsection 267 (1) and whose application has not been determined.

Offences in relation to records of organisations

321. (1) An organisation shall not contravene subsection 268 (1).

Penalty: $1,000.

(2) An organisation that contravenes subsection 268 (2) is guilty of an offence punishable, on conviction, by a fine not exceeding $1,000 plus $250 for each complete week in the period starting at the end of the period of 28 days concerned and ending on:

(a) if the organisation enters the matters concerned in, or removes the matters concerned from, the register before the day on which it is convicted—the day on which the matters are entered or removed; or

(b) in any other case—the day on which the organisation is convicted.

(3) An organisation that contravenes subsection 268 (3) is guilty of an offence punishable, on conviction, by a fine not exceeding $1,000 plus $250 for each completed week in the period starting at the time prescribed for the purposes of that subsection and ending on:

(a) if the organisation has lodged the documents concerned before the day on which it is convicted—the day on which the documents were lodged; or

(b) in any other case—the day on which the organisation is convicted.

(4) An organisation shall not contravene subsection 268 (11).

Penalty: $500.

(5) An organisation that contravenes a direction under subsection 268 (12) is guilty of an offence punishable, on conviction, by a fine not exceeding $1,000 plus $250 for each day in the period starting on the first-mentioned day specified by the Registrar under that subsection and ending on:

(a) if the copy of the register is delivered to the Registrar before the day on which the organisation is convicted—the day on which the copy is delivered; or

(b) in any other case—the day on which the organisation is convicted.

Offences in relation to particulars of loans etc.

322. (1) An organisation shall not contravene subsection 269 (1).

(2) An organisation shall not lodge in the Industrial Registry for the purposes of section 269 a statement that is to the organisation’s knowledge false or misleading in a material particular.

Penalty: $1,000.

Offences in relation to keeping and preparation of accounts etc.

323. An organisation shall not contravene section 272, 273 or 274.

Penalty: $1,000.

Offences in relation to appointment of auditors

324. (1) An organisation shall not contravene subsection 275 (1).

Penalty: $1,000.

(2) A person shall not contravene subsection 275 (3), (4), (5), (6) or (7).

Penalty: $500.

Offences in relation to auditor’s report

325. (1) An auditor shall not, in a report under subsection 276 (4), make a statement that is to the auditor’s knowledge false or misleading in a material particular.

(2) An auditor shall not contravene subsection 276 (5).

Penalty: $500.

Offences in relation to obstruction etc. of auditors

326. (1) An officer, employee or member of an organisation shall not:

(a) hinder or obstruct the auditor of the organisation from taking action under paragraph 276 (2) (a); or

(b) refuse or fail, without reasonable excuse, to produce to the auditor of the organisation a record or other document in the custody or under the control of the officer, employee or member that is sought from the officer, employee or member by the auditor under paragraph 276 (2) (a).

Penalty: $500.

(2) An organisation shall not contravene section 282.

Penalty: $1,000.

(3) An officer, employee or member of an organisation shall not hinder or obstruct the auditor of the organisation from attending a part of the meeting that the auditor is, under section 283, entitled to attend.

Penalty: $500.

(4) Where an auditor of an organisation:

(a) attends a part of a meeting that the auditor is, under section 283, entitled to attend; and

(b) in the course of the part of the meeting, indicates to the chairperson of the meeting that the auditor wishes to be heard under the right conferred by that section;

the chairperson shall, as soon as practicable after having received the indication, afford to the auditor an opportunity to be heard.

Penalty: $500.

(5) It is a defence to a prosecution for an offence against a subsection of this section if the defendant proves that he or she did not know, and could not reasonably have known, that the auditor, or the person authorised

by the auditor, to whom the charge relates was a person in relation to whom the subsection applied.

(6) In this section:

“auditor” includes:

(a) in subsection (1)—a person authorised by the auditor for the purposes of subsection 276 (2); and

(b) in subsections (3) and (4)—a person authorised by the auditor for the purposes of section 283.

Offences in relation to accounts, reports etc.

327. (1) An organisation that contravenes subsection 279 (1) is guilty of an offence punishable, on conviction, by a fine not exceeding $1,000 plus $250 for each complete week in the period starting at the end of the period of 56 days referred to in subsection 279 (3) or the longer period allowed by a Registrar under that subsection, as the case requires, and ending on:

(a) if the copies concerned are provided to the members of the organisation before the day on which the organisation is convicted—the last day on which copies are provided; or

(b) in any other case—the day on which the organisation is convicted.

(2) An organisation that fails to provide a copy of a report, accounts or statements of a kind referred to in subsection 279 (1) to a member of the organisation within 14 days after receipt of a request by the member under a statement of the kind referred to in paragraph 279 (2) (c) is guilty of an offence punishable, on conviction, by a fine not exceeding $1,000 plus $250 for each complete week in the period starting at the end of the 14 days and ending on:

(a) if the copy is provided to the member before the day on which the organisation is convicted—the day on which the copy is provided; or

(b) in any other case—the day on which the organisation is convicted.

(3) An organisation that contravenes subsection 279 (6) is guilty of an offence punishable, on conviction, by a fine not exceeding $1,000 plus $250 for each complete week in the period starting at the end of the relevant period as defined in that subsection or on the day of the first meeting of the committee of management held after that relevant period, as the case requires, and ending on:

(a) if the reports, accounts and statements concerned are presented to a meeting of a kind referred to in that subsection before the day on which the organisation is convicted—the day on which the report, accounts and statements are presented; or

(b) in any other case—the day on which the organisation is convicted.

(4) An organisation that contravenes subsection 279 (7) is guilty of an offence punishable, on conviction, by a fine not exceeding $1,000 plus $250 for each complete week in the period starting at the end of the relevant period as defined in subsection 279 (6) and ending on:

(a) if the report, accounts and statements concerned are presented to a general meeting of the members of the organisation or a meeting of the committee of management of the organisation before the day on which the organisation is convicted—the day on which the report, accounts and statements are presented; or

(b) in any other case—the day on which the organisation is convicted.

(5) Where a member of the committee of management of an organisation:

(a) provides to members of the organisation;

(b) publishes in a journal of the organisation or branch of the organisation; or

(c) presents to a general meeting of the members of the organisation or a meeting of the committee of management of the organisation;

comments on a matter dealt with in a report, accounts or statements of the kind referred to in subsection 279 (1), or in a summary of the kind referred to in subsection 279 (2), the member shall not, in the comments, make a statement that is to the member’s knowledge false or misleading in a material particular.

Penalty for a contravention of this subsection: $500.

Failure to lodge accounts etc.

328. An organisation that contravenes subsection 280 (1) is guilty of an offence punishable, on conviction, by a fine not exceeding $1,000 plus $250 for each complete week in the period starting at the end of the period of 14 days referred to in that subsection or the longer period allowed by a Registrar under that subsection, as the case requires, and ending on:

(a) if the copies and certificate concerned are lodged in the Industrial Registry before the day on which the organisation is convicted—the day on which the copies and certificate are lodged; or

(b) in any other case—the day on which the organisation is convicted.

Offences in relation to investigation by Registrar

329. (1) A person shall not:

(a) refuse or fail, without reasonable excuse:

(i) to attend before a Registrar in accordance with a requirement under subsection 280 (7); or

(ii) to provide information, or produce a document, that the person is required to provide or produce under subsection 280 (7);

(b) in purported compliance with a requirement under subsection 280 (7), provide information, or produce a document, that is to the person’s knowledge false or misleading in a material particular; or

(c) when attending before a Registrar in accordance with a requirement under subsection 280 (7), make a statement, whether orally or in writing, that is to the person’s knowledge false or misleading in a material particular;

but a person is not guilty of an offence against this subsection merely because of refusing or failing to answer a question.

Penalty: $500.

(2) In subsection (1), a reference to subsection 280 (7) includes a reference to that subsection as it applies under subsection 281 (5).

Offences in relation to lodging of accounts

330. Where a branch of an organisation contravenes subsection 281 (4), the organisation is guilty of an offence punishable, on conviction, by a fine not exceeding $1,000 plus $250 for each complete week in the period starting at the end of the period of 14 days referred to in that subsection or the longer period allowed by a Registrar under that subsection, as the case requires, and ending on:

(a) if the copies and certificate concerned are lodged in the Industrial Registry before the day on which the organisation is convicted—the day on which the copies and certificate are lodged; or

(b) in any other case—the day on which the organisation is convicted.

Offences in relation to accounts of low income organisations

331. An organisation shall not contravene subsection 285 (5), (7), (8) or (9).

Penalty: $1,000.

Failure by returning officer to provide information on request by member

332. A returning officer shall not unreasonably contravene section 288.

Penalty: $500 or imprisonment for 6 months, or both.

Failure to provide copy of rules on request by member

333. Where the secretary, or a person performing (in whole or part) the duties of secretary, of an organisation or branch of an organisation contravenes section 289, the organisation is guilty of an offence punishable, on conviction, by a fine not exceeding $500.

Certain offences in relation to members of organisations etc.

334. (1) An employer shall not dismiss an employee, injure an employee in his or her employment, or alter the position of an employee to the employee’s prejudice, because the employee:

(a) is or has been, or proposes, or has at any time proposed, to become an officer, delegate or member of:

(i) an organisation; or

(ii) an association that has applied to be registered as an organisation;

(b) has refused or failed to join in industrial action;

(c) has made, or proposes, or has at any time proposed, to make, application to the Commission for an order under section 136 for the holding of a secret ballot;

(d) has participated in, or proposes, or has at any time proposed, to participate in a secret ballot ordered by the Commission under section 135 or 136;

(e) is entitled to the benefit of an award or an order of the Commission;

(f) has appeared or proposes to appear as a witness, or has given or proposes to give evidence, in a proceeding under this Act;

(g) being a member of an organisation that is seeking better industrial conditions, is dissatisfied with his or her conditions;

(h) has absented himself or herself from work without leave if:

(i) the absence was for the purpose of carrying out duties or exercising rights as an officer or delegate of an organisation; and

(ii) the employee applied for leave before absenting himself or herself and leave was unreasonably refused or withheld; or

(j) being an officer, delegate or member of an organisation, has done, or proposes to do, an act or thing for the purpose of furthering or protecting the industrial interests of the organisation where the act or thing is:

(i) lawful; and

(ii) within the limits of an authority expressly conferred on the employee by the organisation under its rules.

Penalty:

(a) in the case of a natural person—$500; and

(b) in the case of a body corporate—$1,000.

(2) An employer shall not refuse to employ a person, or discriminate against a person in the terms or conditions on which the employer offers to employ the person, because the person:

(a) is or has been, or proposes, or has at any time proposed, to become, an officer, delegate or member of:

(i) an organisation; or

(ii) an association that has applied to be registered as an organisation;

(b) has refused or failed to join in industrial action;

(c) has made, or proposes, or has at any time proposed, to make, application to the Commission for an order under section 136 for the holding of a secret ballot;

(d) has participated in, or proposes, or has at any time proposed, to participate in a secret ballot ordered by the Commission under section 135 or 136;

(e) is entitled to the benefit of an award or an order of the Commission;

(f) has appeared or proposes to appear as a witness, or has given or proposes to give evidence, in a proceeding under this Act; or

(g) being an officer, delegate or member of an organisation, has done, or proposes to do, an act or thing for the purpose of furthering or

protecting the industrial interests of the organisation where the act or thing is:

(i) lawful; and

(ii) within the limits of an authority expressly conferred on the employee by the organisation under its rules.

Penalty:

(a) in the case of a natural person—$500; and

(b) in the case of a body corporate—$1,000.

(3) An employer shall not threaten to dismiss an employee, threaten to injure an employee in his or her employment, or threaten to alter the position of an employee to his or her prejudice:

(a) because the employee is, or proposes to become, an officer, delegate or member of an organisation, or an association that has applied to be registered as an organisation, or with intent to dissuade or prevent the employee from becoming such an officer, delegate or member;

(b) with intent to coerce the employee to join in industrial action;

(c) because the employee has made, or proposes, or has at any time proposed, to make, application to the Commission for an order under section 136 for the holding of a secret ballot;

(d) because the employee has participated in, or proposes, or has at any time proposed, to participate in, a secret ballot ordered by the Commission under section 135 or 136;

(e) because the employee has appeared or proposes to appear as a witness, or has given or proposes to give evidence in a proceeding under this Act, or with the intent to dissuade or prevent the employee from so appearing or giving evidence; or

(f) with the intent to dissuade or prevent the employee, being an officer, delegate or member of an organisation, from doing an act or thing for the purpose of furthering or protecting the industrial interests of the organisation where the act or thing is:

(i) lawful; and

(ii) within the limits of an authority expressly conferred on the employee by the organisation under its rules.

Penalty:

(a) in the case of a natural person—$500; and

(b) in the case of a body corporate—$1,000.

(4) An employee shall not cease work in the service of his or her employer because the employer:

(a) is an officer, delegate or member of:

(i) an organisation; or

(ii) an association that has applied to be registered as an organisation;

(b) is entitled to the benefit of an award or an order of the Commission; or

Penalty: $500.

(5) An organisation shall not take, or threaten to take, industrial action against an employer because the employer is an officer, delegate or member of:

(a) an organisation; or

(b) an association that has applied to be registered as an organisation.

Penalty: $1,000.

(6) In a prosecution for an offence against subsection (1), (2), (3), (4) or (5), it is not necessary for the prosecutor to prove the defendant’s reason for the action charged nor the intent with which the defendant took the action charged, but it is a defence to the prosecution if the defendant proves that the action was not motivated (whether in whole or part) by the reason, nor taken with the intent (whether alone or with another intent), specified in the charge.

(7) Where an employer is convicted of an offence against subsection (1), (2) or (3) constituted by dismissing an employee, the Court may order the employer:

(a) to reinstate the person to the position that the person occupied immediately before the dismissal or a position no less favourable than the position; and

(b) to pay the person the whole or part of the wages lost by the person because of the dismissal.

(8) For the purposes of this section, action done by:

(a) the committee of management of an organisation or branch of an organisation;

(b) an officer, employee or agent of an organisation or branch of an organisation acting in that capacity;

(c) a member or group of members of an organisation or branch of an organisation acting under the rules of the organisation or branch; or

(d) a member of an organisation, who performs the function of dealing with an employer on behalf of the member and other members of the organisation, acting in that capacity;

shall be taken to have been done by the organisation.

(9) In this section:

“organisation” includes a branch of an organisation.

Offences by organisations in relation to industrial action etc.

335. (1) An organisation shall not:

(a) advise, encourage or incite an employer to take action in relation to a person that would, if taken, contravene paragraph 334 (1) (b), (c) or (d), (2) (b), (c) or (d) or (3) (b), (c) or (d);

(b) take, or threaten to take, industrial action against an employer with intent to coerce the employer to take action in relation to a person that would, if taken, contravene paragraph 334 (1) (b), (c) or (d), (2) (b), (c) or (d) or (3) (b), (c) or (d);

(c) because a member of the organisation has refused or failed to comply with a direction given by the- organisation, take, or threaten to take, industrial action against an employer with intent to coerce the employer to prejudice the member in the member’s employment or possible employment;

(d) because a member of the organisation has refused or failed to comply with a direction given by the organisation, advise, encourage nor incite an employer to prejudice the member in the member’s employment or possible employment;

(e) take, or threaten to take, action having the effect, directly or indirectly, of prejudicing a person in the person’s employment or possible employment with intent to coerce the person to join in industrial action;

(f) impose, or threaten to impose, a penalty, forfeiture or disability of any kind on a member of the organisation with intent to coerce the member to join in industrial action;

(g) impose, or threaten to impose, a penalty, forfeiture or disability of any kind on a member of the organisation because the member has refused or failed to join in industrial action;

(h) take, or threaten to take, action having the effect, directly or indirectly, of prejudicing a person in the person’s employment or possible employment with the intent to deter or prevent the person from making application to the Commission for an order under section 136 for the holding of a secret ballot; or

(j) impose, or threaten to impose, a penalty, forfeiture or disability of any kind upon a member of the organisation because the member:

(i) has made, or proposes, or has at any time proposed, to make, application to the Commission for an order under section 136 for the holding of a secret ballot; or

(ii) has participated in, or proposes, or has at any time proposed, to participate in, a secret ballot ordered by the Commission under section 135 or 136.

(2) A contravention of subsection (1) is an offence punishable, on conviction, by a penalty not exceeding a fine of $1,000 for the first day on which the action constituting the offence takes place plus $500 for each subsequent day on which the action continues.

(3) In a prosecution for an offence against this section, it is not necessary for the prosecution to prove the defendant’s reason for the action charged nor the intent with which the defendant took the action charged, but, where a reason or intent is specified in the charge, it is a defence to the prosecution if the defendant proves that the action was not motivated (whether in whole

or in part) by the reason, nor taken with the intent (whether alone or with another intent), specified in the charge.

(4) For the purposes of this section, action done by:

(a) the committee of management of an organisation or branch of an organisation;

(b) an officer, employee or agent of an organisation or branch of an organisation acting in that capacity;

(c) a member or group of members of an organisation or branch of an organisation acting under the rules of the organisation or branch; or

(d) a member of an organisation, who performs the function of dealing with an employer on behalf of the member and other members of the organisation, acting in that capacity;

shall be taken to have been done by the organisation.

(5) For the purposes of this section, a direction given by:

(a) the committee of management of an organisation or branch of an organisation;

(b) an officer, employee or agent of an organisation or branch of an organisation acting in that capacity;

(i) the rules of the organisation or branch;

(ii) the committee of management of the organisation or branch; or

(iii) an officer, employee or agent of the organisation or branch acting in that capacity; or

(d) a member of an organisation or branch of an organisation, who performs the function of dealing with an employer on behalf of the member and other members of the organisation or branch, acting in that capacity;

shall be taken to have been given by the organisation.

Offences in relation to independent contractors etc.

336. (1) An organisation shall not:

(a) advise, encourage or incite a person (whether an employer or not) to take discriminatory action against an eligible person because the eligible person is not a member of an organisation;

(b) take, or threaten to take, industrial action against an employer with the intent to coerce the employer to take discriminatory action against an eligible person because the eligible person is not a member of an organisation; or

(c) take, or threaten to take, industrial action against an eligible person who is an employer, with intent to coerce the employer to join an organisation.

(4) For the purposes of this section, action done by:

(a) the committee of management of an organisation or branch of an organisation;

(b) an officer, employee or agent of an organisation or branch of an organisation acting in that capacity;

(c) a member or group of members of an organisation or branch of an organisation acting under the rules of the organisation or branch; or

(d) a member of an organisation, who performs the function of dealing with an employer on behalf of the member and other members of the organisation, acting in that capacity;

shall be taken to have been done by the organisation.

(5) In this section:

“discriminatory action”, in relation to an eligible person, means:

(a) a refusal to make use of, or to agree to make use of, services offered by the eligible person; or

(b) a refusal to supply, or to agree to supply, goods or services to the eligible person;

“eligible person” means a person who is not an employee, but who is or, if the person were an employee, would be eligible to join an organisation.

False representation as to membership of organisation

337. A person shall not knowingly make, in an application made under this Act, a false representation that he or she is a member of an organisation.

Penalty: $500 or imprisonment for 6 months, or both.

Contracts entered into by agents of employers

338. A person carrying on the business of an employment agency shall not, as agent for an employer, make an agreement for the employment of an employee on terms and conditions less favourable to the employee than the terms and conditions of an award, or an order of the Commission, binding on the employer and employee.

Penalty: $500.

Publication of trade secrets etc.

339. A person shall not give as evidence, or publish, any information in contravention of:

(a) section 355; or

(b) a direction given under section 355.

Penalty:

(a) in the case of a natural person—$1,000 or imprisonment for 6 months, or both; and

(b) in the case of a body corporate—$1,000.

Unauthorised collection of money

340. (1) A person shall not knowingly make a false representation that he or she is authorised to collect money on behalf of an organisation.

(2) A person shall not collect money on behalf of an organisation knowing that he or she does not have lawful authority to do so.

Penalty: $500.

Prosecutions

341. A prosecution for an offence against this Act may be instituted by summons issued on information, without indictment.

PART XII—FINANCIAL ASSISTANCE AND COSTS

Division 1—Financial assistance

Authorisation of financial assistance

342. (1) Subject to this Division, the Minister may, on application made by a person under subsection (2), authorise payment by the Commonwealth to the person of financial assistance in relation to the whole or part of the person’s relevant costs, if the Minister is satisfied:

(a) that hardship is likely to be caused to the person if the application is refused; and

(b) that in all the circumstances it is reasonable that the application should be granted.

(2) An application may be made to the Minister for financial assistance under this Division by the following persons (other than organisations) in the following circumstances:

(a) a person who made an application under section 208 or 209, where the Court granted a rule calling on another person, or an organisation, to show cause why an order should not be made under section 208 or 209 in relation to the other person or organisation;

(b) a person who was a party, otherwise than as an applicant, to a proceeding under section 208 or 209;

(d) a person who applied for an inquiry into an election, where the Court found that an irregularity happened;

(e) a person who applied for an inquiry into an election, where the Court certified under subsection 343 (1) that the person acted reasonably in applying;

(f) a person who incurred costs in relation to an inquiry into an election, other than a person who applied for the inquiry;

(g) a member of an organisation who made an application under subsection 228 (5), where the Court declared that the person the subject of the application was not eligible to be a candidate for election or to be elected or appointed or had ceased to hold office;

(h) a member of an organisation who made an application under subsection 228 (5), where the Court, certified under subsection 343 (2) that the member acted reasonably in making the application;

(j) a person who incurred costs in relation to an application made under subsection 228 (5), other than the person who made the application;

(k) a person who made an application to the Court under section 229 or 230, where, on the application, the Court granted the person leave under paragraph 229 (2) (a) or 230 (2) (a) or refused the person leave under paragraph 229 (2) (b) or 230 (2) (b);

(m) a person who applied for an inquiry into a ballot under Division 7 of Part IX, where the Court found that an irregularity happened;

(n) a person who applied for an inquiry into a ballot under Division 7 of Part IX, where the Court certified under subsection 343 (3) that the person acted reasonably in applying;

(o) a person who incurred costs in relation to an inquiry into a ballot under Division 7 of Part IX, other than the person who applied for the inquiry;

(p) a person who was a party to a proceeding under Division 8 of Part IX;

(q) a person who made an application under section 261, where the Court granted a rule calling on another person, or an organisation, to show cause why an order should not be made under subsection 261 (8) in relation to the other person or organisation.

(3) In subsection (1), “relevant costs” means:

(a) in the case of a person referred to in paragraph (2) (a), (c), (k) or (q)—the costs incurred by the person in relation to the application concerned;

(b) in the case of a person referred to in paragraph (2) (b) or (p)—the costs incurred by the person in relation to the proceeding concerned;

(c) in the case of a person referred to in paragraph (2) (d), (e), (m) or (n)—the costs incurred by the person in relation to the inquiry concerned;

(d) in the case of a person referred to in paragraph (2) (f), (j) or (o)—the costs referred to in that paragraph; or

(e) in the case of a member of an organisation referred to in paragraph (2) (g) or (h)—the costs incurred by the member in relation to the application concerned.

Court may certify that application was reasonable

343. (1) Where a person has applied for an inquiry into an election but the Court does not find that an irregularity happened, the Court may certify for the purposes of this Division that the person acted reasonably in applying.

(2) Where a member of an organisation has made an application under subsection 228 (5) but the Court does not declare that the person the subject of the application was not eligible to be a candidate or to be elected or appointed or had ceased to hold office, the Court may certify for the purposes of this Division that the member acted reasonably in making the application.

(3) Where a person has applied for an inquiry into a ballot under Division 7 of Part IX but the Court does not find that an irregularity happened, the Court may certify that the person acted reasonably in applying.

Applications under sections 208, 209 and 261

344. (1) The Minister may refuse an application made by a person referred to in paragraph 342 (2) (a), (b), (c) or (q) if satisfied that:

(a) the order sought in the proceeding concerned is the same or substantially the same as an order obtained or sought in another relevant proceeding and the proceeding involves the determination of the same or substantially the same questions of fact or law or mixed fact and law as were or are involved in the determination of the other relevant proceeding; or

(b) it would be contrary to the interests of justice to grant financial assistance to the applicant in relation to the proceeding concerned.

(2) In subsection (1):

“other relevant proceeding” means a proceeding that:

(a) was instituted, whether before or after the commencement of this section, before the institution of the proceeding in relation to which the application referred to in that subsection was made; and

(b) has been heard and determined by, or is pending before, the Court.

(3) Where the Minister authorises the payment of financial assistance on application made by a person referred to in paragraph 342 (2) (a), (b), (c) or (q), subsections (4) and (5) of this section apply.

(4) The Minister may:

(a) specify the amount, or determine from time to time the amounts, to be paid; or

(b) authorise the payment of such amount as is determined, or such amounts as are determined from time to time, under directions of the Minister.

(5) The Minister may authorise payment to be made by the Commonwealth before or after the hearing or determination by the Court of the proceeding concerned.

Fees for 2 counsel not normally to be paid

345. Nothing in this Division authorises a payment in relation to fees of more than one counsel appearing for the person applying for financial assistance unless 2 or more counsel appeared, or are to appear, for any other person at the hearing concerned.

Powers of Court not affected

346. Nothing in this Division limits the power of the Court to make an order as to the costs of proceedings before the Court.

Division 2—Costs

Costs only where proceeding instituted vexatiously etc.

347. (1) A party to a proceeding (including an appeal) in a matter arising under this Act shall not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause.

(2) In subsection (1):

“costs” includes all legal and professional costs and disbursements and expenses of witnesses.

PART XIII—MISCELLANEOUS

Delegation by Minister

348. The Minister may, by signed instrument, delegate to a person occupying a specified office in the Department all or any of the Minister’s powers under this Act.

Conduct by officers, directors, employees or agents

349. (1) Where it is necessary to establish, for the purposes of this Act, the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:

(a) that the conduct was engaged in by an officer, director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; and

(b) that the officer, director, employee or agent had the state of mind.

(2) Any conduct engaged in on behalf of a body corporate by:

(a) an officer, director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; or

(b) any other person at the direction or with the consent or agreement (whether express or implied) of an officer, director, employee or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the officer, director, employee or agent;

shall be taken, for the purposes of this Act, to have been engaged in also by the body corporate.

(3) A reference in this section to the state of mind of a person includes a reference to the knowledge, intent, opinion, belief or purpose of the person and the person’s reasons for the intent, opinion, belief or purpose.

No imprisonment in default

350. In spite of the provisions of any other law, a court may not direct that a person shall serve a sentence of imprisonment in default of the payment of a fine or other pecuniary penalty imposed under this Act.

Jurisdiction of courts limited as to area

351. (1) For the purposes of this Act, a court of a State or Territory whose jurisdiction is limited, as to subject matter or parties, to any part of a State or Territory shall be taken to have jurisdiction throughout the State or Territory.

(2) On the hearing of a proceeding in a court for the recovery of a penalty, fine, fee, levy or due, the court may, if in the interests of justice it considers appropriate, adjourn the hearing to a court of competent jurisdiction to be held at some other place in the same State or Territory.

Public sector employer to act through employing authority

352. In spite of anything to the contrary in this Act or any other law, the employer of an employee engaged in public sector employment shall, for the purposes of this Act and the Rules of the Commission, act only by an employing authority of the employee acting on behalf of the employer and, in particular:

(a) anything done by an employing authority of an employee has effect, for those purposes, as if it had been done by the employer of the employee; and

(b) anything served on, or otherwise given or notified to, an employing authority of an employee has effect, for those purposes, as if it had been served on, or given or notified to, the employer of the employee.

Proceedings by and against unincorporated clubs

353. (1) For the purposes of this Act, the treasurer of a club shall be taken to be the employer of a person employed for the purposes or on behalf of the club, and any proceeding that may be taken under this Act by or against the club may be taken by or against the treasurer on behalf of the club.

(2) The treasurer is authorised to retain out of the funds of the club sufficient money to meet payments made by the treasurer on behalf of the club under this section.

(3) In this section:

“club” means an unincorporated club;

“treasurer” includes a person having possession or control of any funds of a club.

Inspection of documents etc.

354. All documents and other things produced in evidence before the Commission may be inspected by the Commission or by such other parties as the Commission allows.

Trade secrets etc. tendered as evidence

355. (1) In a proceeding before the Court or the Commission:

(a) the person entitled to a trade secret may object that information tendered as evidence relates to the trade secret; or

(b) a witness or party may object that information tendered as evidence relates to the profits or financial position of the witness or party.

(2) Where an objection is made under subsection (1) to information tendered as evidence, the information may only be given as evidence under a direction of the Court or Commission.

(3) If information is given as evidence under subsection (2), it shall not be published in any newspaper, or otherwise, unless the Court or Commission, by order, permits the publication.

(4) Where the Court or Commission directs that information relating to a trade secret or to the profits or financial position of a witness or party shall be given in evidence, the evidence shall be taken in private if the person entitled to the trade secret, or the witness or party, requests.

(5) The Court or Commission may direct that evidence given in a proceeding before it, or the contents of a document produced for inspection, shall not be published.

Application of penalties

356. A court that imposes a penalty under section 178 or 311 may order that the penalty, or a part of the penalty, be paid:

(a) into the Consolidated Revenue Fund; or

(b) to a particular organisation or person.

Enforcement of penalties etc.

357. (1) Where a court has:

(a) imposed a penalty under section 178 for a breach of a term of an award or order;

(b) under subsection 178 (6), ordered the payment of an amount;

(d) ordered the payment of costs or expenses;

a certificate signed by a Registrar, specifying the amount payable and by whom and to whom respectively it is payable, may be filed in the Court or in any other court of competent jurisdiction.

(2) A certificate filed in a court under subsection (1) is enforceable in all respects as a final judgment of the court in which it is filed.

(3) Where there are 2 or more creditors under a certificate, process may be issued separately by each creditor for the enforcement of the certificate as if there were separate judgments.

Appropriation for payment of certain salaries and allowances

358. The Consolidated Revenue Fund is appropriated to the extent necessary for payment of salaries and allowances under section 21.

Regulations

359. (1) The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters:

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(2) The matters in relation to which the Governor-General may make regulations include, but are not limited to:

(a) the manner in which, and the time within which, applications, submissions and objections under this Act may be made and dealt with;

(b) the practice and procedure of the Commission;

(d) the duties of the Industrial Registrar, the Deputy Industrial Registrars and any officers of the Commission;

(e) requiring, or authorising a particular person to require, the providing by all or any organisations of information relating to matters relevant to the conduct of elections for offices in organisations and branches of organisations;

(f) the exhibiting, on the premises of an employer bound by an award or an order of the Commission, of any of the terms of the award or order; and

(g) penalties not exceeding a fine of $1,000 for offences against the regulations.

(3) The power conferred by subsection (1) to make regulations with respect to the matter referred to in paragraph (2) (b) includes power to make regulations with respect to that matter in relation to any jurisdiction conferred on the Commission by or under any other Act, whether passed before or after this Act.

SCHEDULE 1 Sections 4 and 5

INTERPRETATION FOR PURPOSES OF ADDITIONAL OPERATION OF ACT

1. In the Act, unless the contrary intention appears:

“flight crew officer” means a person who performs (whether with or without other duties) duties as a pilot, navigator or flight engineer of aircraft, and includes a person being trained for the performance of such duties;

“flight crew officers’ employer” means a person (including an authority of the Commonwealth) carrying on a business in the course of which the person employs flight crew officers, other than a business the principal place of control of which is outside Australia;

“maritime employee” means a person who is, or whose occupation is that of, a master as defined in section 6 of the Navigation Act 1912, a seaman as so defined or a pilot as so defined;

“pilot”, in relation to an aircraft, includes a pilot in command, co-pilot or pilot of any other description;

“ship” includes a barge, lighter, hulk or other vessel;

“stevedoring operations” means:

(a) the loading or unloading of cargo into or from ships;

(b) the loading or unloading, into or from ships, of ships’ stores, coal or fuel oil (whether for bunkers or not), passengers’ luggage or mails;

(d) the driving or operation of mechanical appliances used in relation to the loading or unloading of ships or with the handling or storage of cargo or other goods at or adjacent to a wharf; or

(e) haulage or trucking from ship to shed or shed to ship;

and includes:

(f) the removal or replacing of beams or hatches;

(g) the handling of dunnage or ballast;

(h) the preparing or cleaning of holds; and

(J) the preparation of gear for use in relation to the loading or unloading of ships;

when that work is performed by a person who is a member, or has applied for membership, of the Waterside Workers Federation of Australia;

“waterside employer” means:

SCHEDULE 1—continued

(a) a person who engages, or offers to engage, persons for employment as waterside workers for work on a wharf or ship;

(b) a ship’s agent or shipowner who directs the method or time of working of a stevedoring employer or contractor; or

(c) a master or officer of a ship engaged in work of the same nature as the work usually performed by a stevedoring employer;

and includes an agent or servant of a person to whom paragraph (a), (b) or (c) applies;

“waterside worker” means a person who accepts, or offers to accept, employment for work in the loading or unloading of cargo into or from ships, and includes a person who is a member, or has applied for membership, of the Waterside Workers Federation of Australia who accepts, or offers to accept, employment for work in:

(a) the loading or unloading, into or from ships, of ships’ stores, coal or fuel oil (whether for bunkers or not), passengers’ luggage or mails;

(b) the handling or storage of cargo or other goods at or adjacent to a wharf;

(c) the driving or operation of mechanical appliances used in relation to the loading or unloading of ships or with the handling or storage of cargo or other goods at or adjacent to a wharf;

(d) haulage or trucking from ship to shed or shed to ship;

(e) the removal or replacing of beams or hatches;

(f) the handling of dunnage or ballast;

(g) the preparing or cleaning of holds; or

(h) the preparation of gear for use in relation to the loading or unloading of ships;

but does not include:

(j) persons working in or alongside a ship in relation to the direction or checking of the work of waterside workers;

(k) members of the crew of a ship on the ship’s articles;

(m) members of the crew of a lighter;

(n) members of the Sydney Coal Lumpers’ Union while loading or unloading coal in the port of Sydney;

(o) persons employed, directly or indirectly, at a port in or in relation to stevedoring operations that consist of the loading or unloading, into or from ships, of loose bulk cargo by means of equipment based on the shore, other than persons employed, in relation to a particular class of loose bulk cargo, in operations that, before 14 August 1956, were ordinarily

SCHEDULE 1—continued

performed at the port by members of the Waterside Workers Federation of Australia or North Australian Workers Union in relation to the loading or unloading by those means of loose bulk cargo of that class; or

(p) persons in the regular employment of a person engaged in an industrial undertaking, being persons whose duties include the performance of stevedoring operations in relation to that undertaking;

“wharf” includes a pier, jetty or shed adjacent to a wharf.

2. For the purposes of subsection 5 (4) of the Act, the matters are:

(a) a question as to the number of waterside workers required at a port for the proper and effective conduct of stevedoring operations at the port;

(b) a question as to the circumstances in which waterside workers will be employed at a port to assist in the performance of particular stevedoring operations because the number of waterside workers regularly employed at the port is insufficient for the efficient performance of the stevedoring operations;

(d) a matter pertaining to attendance money or a question arising in relation to such a matter.

3. For the purposes of subsection 4 (10) and paragraph 5 (3) (e) of the Act, the matters are:

(a) the right of the Governor-General, or the Commissioner of Police appointed under section 17 of the Australian Federal Police Act 1979, to transfer members of the Australian Federal Police;

(b) appointments, promotions, discipline, demotions, retirements or dismissals of members of the Australian Federal Police; and

(c) any other terms or conditions expressly provided for by the Australian Federal Police Act 1979, by the regulations under that Act or by any other law of the Commonwealth applicable to members of the Australian Federal Police.

SCHEDULE 2 Sections 19 and 78

OATH OR AFFIRMATION OF OFFICE

I, , do swear that I will bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law, that I will well and truly serve Her in the office of (insert name of office) and that I will faithfully and impartially perform the duties of the office. So help me God!

I, , do solemnly and sincerely promise and declare that [as above, omitting the words “So help me God!”]

SCHEDULE 3 Section 188

PERSONS, OTHER THAN EMPLOYEES, WHO MAY BE MEMBERS OF ASSOCIATIONS APPLYING FOR REGISTRATION

The persons specified for the purpose of subparagraph 188 (1) (b) (ii) are persons (other than employees) who:

(a) are, or are able to become, members of an industrial union of employees within the meaning of the Industrial Arbitration Act, 1940 of New South Wales;

(b) are employees for the purposes of the Industrial Conciliation and Arbitration Act 1961 of Queensland;

(d) are employees for the purposes of the Industrial Conciliation and Arbitration Act, 1972 of South Australia.

SCHEDULE 4 Section 293

COMPLEMENTARY REGISTRATION SYSTEMS

Part 1

1. In this Schedule, unless the contrary intention appears:

“amalgamation” means the carrying out of arrangements in relation to an organisation and an associated body under which it is intended that:

(a) a branch of the organisation is to obtain non-corporate registration under a prescribed State Act;

(b) the associated body is to be de-registered under a prescribed State Act;

(c) members of the associated body who are not already members of the organisation are to become members of the organisation;

(d) the property of the associated body is to become the property of the organisation forming part of the branch fund of the branch; and

(e) the liabilities of the associated body are to be satisfied from the branch fund of the branch;

“associated body”, in relation to an organisation, means an industrial union or association registered under a prescribed State Act that is or purports to be composed of substantially the same members, and has or purports to have substantially the same officers, as a branch of the organisation in the same State, including such an industrial union or association that has purported to function as a branch of the organisation;

“State” means a prescribed State.

Part 2

2. (1) The rules of a branch of an organisation shall provide that there shall be a fund of the branch that shall be managed and controlled under rules of the branch, and shall make provision in relation to the fund in accordance with subclause (2).

(2) The branch fund shall consist of:

(a) real or personal property of which the branch of the organisation, by the rules or by any established practice not inconsistent with the rules, has, or in the absence of a limited term lease, bailment or arrangement, would have, the right of custody, control or management;

(b) the amounts of entrance fees, subscriptions, fines, fees or levies received by a branch, less so much of the amounts as is payable by the branch to the organisation;

SCHEDULE 4—continued

(d) a superannuation or long service leave or other fund operated or controlled by the branch for the benefit of its officers or employees;

(e) a sick pay fund, accident pay fund, funeral fund, tool benefit fund or similar fund operated or controlled by the branch for the benefit of its members;

(f) property acquired wholly or mainly by expenditure of the moneys of the fund or derived from other assets of the fund; and

(g) the proceeds of a disposal of parts of the fund.

(3) A Registrar may grant to a branch of an organisation exemption from this clause or any provision of this clause on the ground that the branch’s rules make adequate and reasonable provision for its funds, having regard to the organisation’s functioning under this Act and its participation in any State system of industrial conciliation and arbitration.

3. (1) Subclauses (2) and (3) apply in relation to the consideration by a designated Presidential Member of an application under section 204 for consent to a change in the name, or an alteration of the eligibility rules, of an organisation.

(2) The Presidential Member shall, in addition to any other relevant matters, have regard to:

(a) whether there is, in relation to the organisation, an associated body registered under a prescribed State Act; and

(b) whether the reason the change is sought is to enable the organisation, in addition to representing members under this Act, to represent under the State Act a class of persons who would, if the change were consented to, become eligible for membership.

(3) In the case of an alteration to a rule that may effect a change in the class of persons eligible for membership of a branch of the organisation that is registered under the law of a State, the Presidential Member shall, before consenting, give notice of the proposed change to the industrial registrar or similar officer appointed under the law of the State in which the branch operates and, if so requested, consult with the industrial registrar or officer.

4. The rules of an organisation shall provide for the autonomy of a branch in matters affecting members of the branch only and matters concerning the participation of the branch in a State industrial conciliation and arbitration system.

5. (1) Where it is not contrary to the rules of an organisation to do so, the organisation may participate in the systems of conciliation and arbitration or of wages boards or like systems established under the law of a State.

(2) For the purpose of participating, a branch of an organisation may become registered under a law of a State so long as that registration does not involve the branch in becoming incorporated, or otherwise becoming a legal entity, under the law of the State.

SCHEDULE 4—continued

(3) Where an organisation participates, its rules may provide that the secretary of the branch of the organisation in the State is the person to sue or to be sued under the law of the State in relation to any acts or omissions arising from its participation.

Part 3

6. An organisation and an associated body may amalgamate in the manner set out in this Part.

7. (1) The committee of management of an organisation and the committee of management of the associated body shall each pass a resolution proposing amalgamation and specifying particulars of the proposed amalgamation.

(2) Application shall be made to a designated Presidential Member by the organisation for approval of the amalgamation.

(3) The application shall be accompanied by a copy of any proposed alterations of the rules of the organisation.

(4) The Presidential Member shall:

(a) determine what notice is to be given to other persons of the application;

(b) determine whether, on whom and how notice should be served and whether it should be advertised in any newspaper; and

(5) Objection may be made to the amalgamation, so far as it involves an alteration of the eligibility rules of the organisation, by:

(a) another organisation;

(b) a member of the associated body; or

because there is another organisation to which the members of the associated body, whose eligibility for membership would depend on the alteration, might conveniently belong.

(6) Objection may be made to the amalgamation by a member of the organisation or of the associated body on the ground that:

(a) the provisions of this clause have not been complied with; or

(b) the amalgamation would do substantial injustice to the members of the organisation or associated body.

(7) If any objections are duly lodged or if the Presidential Member otherwise deems it advisable to do so, the Presidential Member shall:

(a) fix a day and place of hearing; and

(b) determine to whom and in what manner notice of the day and place of the hearing shall be given.

SCHEDULE 4—continued

(8) If the Presidential Member:

(a) finds that no duly made objection is justified;

(b) is satisfied that the provisions of this clause have been complied with;

(c) is satisfied that the amalgamation would not do substantial injustice to the members of the organisation or of the associated body; and

(d) is satisfied that any proposed alterations of the rules of the organisation:

(i) comply with and are not contrary to this Act and applicable awards;

(ii) are not otherwise contrary to law; and

(iii) have been decided on under the rules of the organisation;

the Presidential Member shall, subject to subclause (9), approve the amalgamation and fix the day on which the amalgamation is to take effect, but otherwise the Presidential Member shall refuse to approve the amalgamation.

(9) The Presidential Member shall not approve an amalgamation unless the Presidential Member is satisfied as to arrangements made relating to property and liabilities of the associated body.

(10) On the day on which the amalgamation takes effect, any alteration of the rules of the organisation takes effect.

(11) On the day on which the amalgamation takes effect, all members of the associated body who are not already members of the organisation but are or become, on that day, eligible for membership of the organisation:

(a) become members of the organisation; and

(b) shall be taken to have been members for the period ending on that day during which they were members of the associated body.

[Minister’s second reading speech made in—

House of Representatives on 28 April 1988

Senate on 24 May 1988]