Statutory Rules 1984 No. 3151

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Conciliation and Arbitration Regulations2 (Amendment)

I, THE GOVERNOR-GENERAL of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Regulations under the Conciliation and Arbitration Act 1904.

Dated 26 October 1984.

N. M. STEPHEN

Governor-General

By His Excellency’s Command,

R. WILLIS

Minister of State for Employment

and Industrial Relations

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Principal Regulations

1. In these Regulations, “Principal Regulations” means the Conciliation and Arbitration Regulations.

Interpretation

2. Regulation 146a of the Principal Regulations is amended by adding at the end of sub-regulation (1) the following definitions:

“ ‘ballot’ means a ballot referred to in sub-section 158k (1) or (1a) of the Act;

‘closing date’, in relation to a ballot, means the date fixed as the closing date of the ballot under sub-section 158l (1) of the Act;

‘commencing date’, in relation to a ballot, means the date fixed as the commencing date of the ballot under sub-section 158l (1) of the Act;

‘inquiry’ means an inquiry in accordance with section 158p of the Act into alleged irregularities in or in connection with a ballot;

‘postal address’, in relation to a person who is a member of an organization, being a person whose name is on the roll of voters for a ballot, means—

(a) where the person is a member of an organization of employees—

(i) if paragraph (ii) does not apply—the residential address of the person; or

(ii) if the person has notified the organization that the postal address of the person is an address other than the residential address of the person and has provided the organization with particulars of that other address—that other address of the person; or

(b) where the person is a member of an organization of employers—the address of the person entered on the register of members kept by that organization in pursuance of sub-section 152 (1) of the Act.”.

3. Part VA of the Principal Regulations is amended by adding at the end thereof the following regulations:

Roll of voters—Preparation

“146n. The roll of voters for a ballot of the members of an organization—

(a) shall be prepared at the direction of the person conducting the ballot;

(b) shall set out opposite to the name of each person on the roll the postal address of that person; and

(c) shall be completed not later than 14 days before the commencing date of the ballot.

Roll of voters—Inspection, &c.

“146p. (1) The person conducting a ballot of the members of an organization shall, during the prescribed period in relation to the ballot, cause the roll of voters for the ballot to be available, at all convenient times during ordinary hours of business at the place at which he carries out his duties in relation to the ballot, for inspection by members of the organization or by any other person authorized by the person conducting the ballot.

“(2) In sub-regulation (1), ‘prescribed period’, in relation to a ballot, means the period that commences on the day immediately following the day on which the preparation in accordance with regulation 146n of the roll of voters for the ballot is completed and ends on the expiration of the period provided under sub-section 158p (4) for making applications for inquiries in relation to the ballot.

Form and publication of notice of ballot

“146q. (1) Notice of a ballot and of the commencing date and closing date of the ballot for the purposes of sub-section 158l (1) of the Act shall—

(a) if the ballot is in respect of a proposed amalgamation—be in accordance with Form 39b; or

(b) if the ballot is on the question of an alternative amalgamation—be in accordance with Form 39c.

“(2) A notice referred to in sub-regulation (1) in relation to a ballot shall, in addition to being published in the Gazette in accordance with sub-section 158l (1) of the Act, be published in a metropolitan daily newspaper in each State or Territory specified in any address shown on the roll of voters for the ballot as being the postal address of a voter.

Secrecy of ballot

“146r. (1) Subject to these Regulations, the person conducting a ballot of the members of an organization may take such action, and give such directions, as he considers necessary for ensuring the secrecy of the ballot or for ensuring that no irregularities occur in connection with the ballot.

“(2) A person who, without reasonable excuse, refuses or fails to comply with a direction given to him under sub-regulation (1) is guilty of an offence punishable, on conviction, by a fine not exceeding $500 or by imprisonment for a period not exceeding 6 months, or both.

Ballot papers—Form

“146s. (1) A ballot paper for use in a ballot in respect of a proposed amalgamation the scheme for which does not contain an alternative provision shall be in accordance with Form 39d.

“(2) Where the scheme for a proposed amalgamation contains an alternative provision, the ballot papers for use in the ballots conducted for the purposes of the amalgamation shall be in accordance with Form 39e.

Ballot papers—Dispatch

“146t. (1) The person conducting a ballot or ballots of the members of an organization shall, as soon as practicable but not earlier than 2 days before the commencing date of the ballot or ballots, forward, by posting by pre-paid post, to each person whose name is on the roll of voters for the ballot or each of the ballots a sealed envelope, addressed to the postal address of the person shown on the roll of voters, that contains—

(a) one ballot paper for the ballot bearing the initials, or a facsimile of the initials, of the person conducting the ballot or, where 2 ballots of the members of the organization are being conducted at the same time under sub-section 158k (1a) of the Act, one piece of paper (in this regulation referred to as a ‘double ballot paper’) setting out the ballot papers for both ballots and bearing the initials, or a facsimile of the initials, of the person conducting the ballot;

(b) any document required under the Act to accompany the ballot paper or ballot papers;

(c) any other material that, in the opinion of the person conducting the ballot or ballots, is relevant to the ballot or either of the ballots; and

(d) an envelope addressed to the person conducting the ballot or ballots, being an envelope that may be posted without expense to the voter.

(2) Where, upon application made on or before the closing date of a ballot, the person conducting the ballot is satisfied that a ballot paper, double allot paper, return envelope, or document required to accompany a ballot paper or double ballot paper, that was posted to a person in accordance with sub-regulation (1) for the purposes of the ballot has not been received by that person, or has been lost, destroyed or spoilt, the person conducting the ballot shall issue to that person a duplicate ballot paper or double ballot paper, another return envelope, or another copy of that document, as the case may be.

“(3) An application under sub-regulation (2) in relation to any matter that was posted to a person for the purposes of a ballot shall—

(a) be in writing;

(b) set out the grounds on which the application is made;

(c) contain, or be accompanied by, a declaration made by the person before the Registrar, a Justice of the Peace, a Commissioner for Affidavits or the person conducting the ballot to the effect that the person has not voted at the ballot; and

(d) be accompanied, if practicable, by any evidence that is available of the on-receipt, loss, destruction or spoliation of the matter.

Manner of voting

“146u. (1) A person entitled to vote at a ballot of the members of an organization shall record his vote—

(a) by writing legibly ‘yes’ in the space provided opposite the question set out in the ballot paper for that ballot if he approves the amalgamation to which the question relates; or

(b) by writing legibly ‘no’ in the space so provided if he does not approve the amalgamation.

“(2) After a person has, in accordance with sub-regulation (1), recorded his vote at a ballot of the members of an organization or his votes where 2 such allots are conducted at the same time in accordance with sub-section 158k (1a) of the Act, the person shall—

(a) ensure that the ballot paper or double ballot paper, as the case may be, does not contain any mark or writing by which he may be identified;

(b) fold the ballot paper or double ballot paper in such a manner as to conceal the way in which he has voted;

(c) place the ballot paper or double ballot paper in the return envelope supplied to him for the purpose and seal that envelope; and

(d) post that envelope so that it may reach the person conducting the ballot or ballots on or before the closing date of the ballot or ballots.

“(3) In sub-regulation (2), ‘double ballot paper’ has the same meaning as n regulation 146t.

Custody of envelopes containing ballot papers

“146v. (1) The person conducting a ballot or ballots of the members of an organization may, at any time on or before the closing date of the ballot or ballots, and shall, as soon as practicable after that date—

(a) place unopened into a container or containers envelopes received by him on or before the closing date that purport to contain ballot papers relating to the ballot or ballots;

(b) seal the container or each of the containers; and

(c) endorse on the container or each of the containers—

(i) the name of the organization or any code by which the container may be identified as containing the ballot papers of the members of the organization;

(ii) the words ‘Amalgamation ballot (or ballots)—ballot papers received from voters on or before closing date’;

(iii) his signature; and

(iv) the date of signing,

and shall keep the container or each of the containers in safe custody until a scrutiny is conducted in accordance with regulation 146w.

“(2) Where, after the closing date of a ballot or ballots of the members of an organization, the person conducting the ballot or ballots receives envelopes that purport to contain ballot papers relating to the ballot or ballots, he shall—

(a) place unopened into a container or containers all envelopes so received by him;

(b) seal the container or each of the containers;

(c) endorse on the container or each of the containers—

(i) the name of the organization or the code referred to in sub-paragraph (1) (c) (i) in relation to the organization;

(ii) the words ‘Amalgamation ballot (or ballots)—ballot papers received from voters after closing date’;

(iii) his signature; and

(iv) the date of signing; and

(d) keep the container or each of the containers in safe custody.

Scrutiny

“146w. (1) The person conducting a ballot or ballots of the members of an organization shall as soon as practicable after the closing date of the ballot or ballots—

(a) open the sealed container or containers referred to in sub-regulation 146v (1) in relation to the ballot or ballots and withdraw from the envelopes in the container or containers the ballot papers found in them;

(b) reject—

(i) in the case of a ballot in respect of a proposed amalgamation the scheme for which does not contain an alternative provision—each ballot paper that is informal; or

(ii) in the case of ballots conducted at the same time in accordance with sub-section 158k (1a) of the Act—each ballot paper in respect of the proposed amalgamation (in this regulation referred to as the “first ballot paper”) that is informal;

(c) arrange in separate parcels—

(i) in the case of a ballot referred to in sub-paragraph (b) (i)—the ballot papers admitted as formal on which are recorded votes that approve the proposed amalgamation and the ballot papers admitted as formal on which are recorded votes that do not approve the proposed amalgamation; or

(ii) in the case of ballots referred to in sub-paragraph (b) (ii)—the papers containing first ballot papers admitted as formal on which are recorded votes that approve the proposed amalgamation and the papers containing first ballot papers admitted as formal on which are recorded votes that do not approve the proposed amalgamation,

and count the votes in favour, and the votes not in favour, of the proposed amalgamation;

(d) place into a container or containers the ballot papers referred to in sub-paragraph (c) (i) or the papers referred to in sub-paragraph (c) (ii), as the case may be, seal the container or each of the containers and endorse on the container or each of the containers—

(i) the name of the organization;

(ii) the words ‘Ballot in respect of proposed amalgamation—ballot papers admitted as formal’;

(iii) his signature; and

(iv) the date of signing; and

(e) count, and place into a container or containers, the ballot papers, or the papers containing the ballot papers, that have been, in accordance with paragraph (b), rejected as informal, seal the container or each of the containers and endorse on the container or each of the containers—

(i) the name of the organization;

(ii) the words ‘Ballot in respect of proposed amalgamation—ballot papers rejected as informal’;

(iii) his signature; and

(iv) the date of signing.

“(2) Where ballots of the members of an organization have been conducted in accordance with sub-section 158k (1a) of the Act, the person conducting the ballots shall, if and when he is satisfied that the result of the

ballot conducted on the question of an alternative amalgamation will be required to be known for the purposes of the Act—

(a) open the sealed container or containers referred to in paragraph (1) (d) in relation to the ballots, remove from the container or containers the parcel or parcels made up of papers containing first ballot papers on which are recorded a formal vote in favour of the proposed amalgamation and reseal the container or containers;

(b) reject from the papers referred to in paragraph (a) each paper containing a ballot paper on the question of an alternative amalgamation (in this sub-regulation referred to as a ‘second ballot paper’) that is informal;

(c) count the formal votes in favour, and the formal votes not in favour, of the question of an alternative amalgamation;

(d) place into a container or containers the papers containing second ballot papers admitted as formal, seal the container or each of the containers and endorse on the container or each of the containers—

(i) the name of the organization;

(ii) the words ‘Ballot on the question of an alternative amalgamation—ballot papers admitted as formal’;

(iii) his signature; and

(iv) the date of signing; and

(e) count, and place into a container or containers, the papers containing second ballot papers that have been rejected as informal, seal the container or each of the containers and endorse on the container or each of the containers—

(i) the name of the organization;

(ii) the words ‘Ballot on the question of an alternative amalgamation—ballot papers rejected as informal’;

(iii) his signature; and

(iv) the date of signing.

“(3) For the purposes of this regulation, a ballot paper is informal only if—

(a) the ballot paper or the paper containing the ballot paper does not bear the initials, or a facsimile of the initials, of the person conducting the ballot;

(b) the ballot paper or the paper containing the ballot paper has upon it a mark or writing by which the voter can be identified; or

(c) the voter has not recorded his vote on the ballot paper substantially in accordance with the provisions of sub-regulation 146u (1).

“(4) Where, during a scrutiny under this regulation in relation to a ballot, the person conducting the ballot is informed by a scrutineer appointed under regulation 146x that the scrutineer objects to a ballot paper being admitted as formal or rejected as informal, as the case may be, the person conducting the ballot shall decide whether the ballot paper is to be admitted as formal or

rejected as informal and shall endorse his decision on the back of the ballot paper.

Scrutineers

“146x. (1) The committee of management of an organization may, in relation to a ballot of the members of the organization in respect of an amalgamation, by instrument in writing, appoint 2 members of the organization to be scrutineers to safeguard the interests of members who vote to approve the amalgamation.

“(2) An instrument referred to in sub-regulation (1) in relation to the committee of management of an organization shall be signed on behalf of the committee by 2 members of the committee, being members authorized to sign the instrument.

“(3) Where members of an organization concerned in a proposed amalgamation have, under paragraph 158l (2) (b) of the Act, delivered to the Industrial Registrar a statement in writing in opposition to the proposed amalgamation or, if the scheme for that amalgamation contains an alternative provision, to the proposed amalgamation or any alternative amalgamation of any 2 or more of them, the person conducting a ballot of the members

of the organization in respect of the amalgamation, shall allow 2 persons, being persons that appear to him to represent the first-mentioned members of the organization, to be, in relation to the ballot, scrutineers to safeguard the interests of members who vote to disapprove the amalgamation.

“(4) Subject to sub-regulation (6), a scrutineer in relation to a ballot may—

(a) be present while the person conducting the ballot carries out the scrutiny under regulation 146w in respect of the ballot;

(b) if he objects to a decision that a ballot paper is formal or informal, as the case may be, inform the person conducting the ballot accordingly; and

(c) if he considers that an error has been made in the conduct of the scrutiny, inform the person conducting the ballot accordingly.

“(5) Where a scrutineer in relation to a ballot interrupts the scrutiny in respect of the ballot otherwise than for the purpose of performing a function referred to in sub-regulation (4), the person conducting the ballot may direct the scrutineer to leave the place where the scrutiny is being conducted.

“(6) A scrutineer in relation to a ballot shall comply with a direction given to him under sub-regulation (5).

Penalty: $100.

Furnishing of particulars of the ballot

“146y. (1) Within 21 days after the closing date of a ballot, the person conducting the ballot shall prepare, date and sign a certificate showing, in relation to the ballot—

(a) the total number of persons on the roll of voters;

(b) the total number of envelopes containing ballot papers posted, in accordance with regulation 146t, to persons entitled to vote at the ballot, being envelopes that were not received by those persons in the ordinary course of the post and were returned to the person conducting the ballot;

(c) the total number of ballot papers received by him before the closing date of the ballot;

(d) the total number of votes in favour of the question set out on the ballot paper;

(e) the total number of votes not in favour of the question set out on the ballot paper; and

(f) the total number of informal ballot papers.

“(2) Sub-regulation (1) does not apply in relation to a ballot that was required to be conducted under sub-section 158k (1a) of the Act, where the person conducting the ballot was not, by virtue of sub-section 158k (2b) of the Act, required to count the votes in that ballot.

“(3) Immediately after signing a certificate referred to in sub-regulation (1) in relation to a ballot, the person conducting the ballot shall—

(a) forward a copy of the certificate to each of the organizations concerned in the proposed amalgamation for the purposes of which the ballot was conducted; and

(b) where the person conducting the ballot is not the Industrial Registrar—forward the certificate to the Industrial Registrar.

“(4) The date shown on a certificate referred to in sub-regulation (1) in relation to a ballot shall, for the purposes of the Act and these Regulations, be deemed to be the date of the declaration of the result of the ballot.

Preservation of ballot papers, &c.

“146z. The person conducting a ballot shall retain all ballot papers and documents relating to the ballot—

(a) except where paragraph (b) applies—until the expiration of the period within which applications may be made under section 158p of the Act for inquiries by the Court in accordance with that section in respect of the ballot; or

(b) where an application referred to in paragraph (a) has been made in relation to the ballot—until the Court has disposed of the application.

Inquiry into ballot irregularity—Application

“146za. (1) A member of an organization concerned in a proposed amalgamation may, in accordance with sub-regulation (2), make an application to the Court for an inquiry by the Court, in accordance with section 158p of the Act, into any irregularity that is alleged by the member to have occurred in or in connection with a ballot of the members of the organization conducted for the purposes of the amalgamation.

“(2) An application for the purposes of sub-regulation (1) shall—

(a) be in accordance with Form 39f;

(b) specify the irregularity that is alleged to have occurred and state the facts relied upon in support of the allegation; and

(c) be lodged with the Industrial Registrar together with a declaration by the applicant that the facts stated in the application are, to the best of the applicant’s knowledge and belief, true.

“(3) For the purposes of this Part, an inquiry in relation to a ballot

shall be taken to have been instituted upon the lodging, in accordance with sub-regulation (2), of an application for the inquiry with the Industrial Registrar within the time referred to in sub-section 158p (4) of the Act in relation to the ballot.

Inquiry into ballot irregularity—Directions as to hearing

“146zb. Where an inquiry in relation to a ballot has been instituted, the Court shall fix a time and place for conducting the inquiry and may give such directions as it thinks necessary to ensure that all persons who are or may be entitled to appear or be represented at the inquiry are notified of the time and place so fixed.

Inquiry into ballot irregularity—Inspection of ballot papers, &c.

“146zc. At any time after an inquiry in relation to a ballot has been instituted, the Court may, for the purposes of the inquiry, authorize any person to inspect rolls, ballot papers, or other documents that have been used in connection with, or are relevant to, the ballot.

Inquiry into ballot irregularity—Procedure at hearing

“146zd. (1) The Court may allow any person to appear or be represented at an inquiry in relation to a ballot and that person shall be deemed to be a party to the proceedings.

“(2) At an inquiry in relation to a ballot—

(a) the procedure of the Court is, subject to the Act and these Regulations, 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 of any matter in such manner as it thinks fit.

Inquiry into ballot irregularity—Interim orders

“146ze. (1) At any time after an inquiry in relation to a ballot has been instituted and before the Court finds whether there has been an irregularity that may have affected, or may affect, the result of the ballot the Court may, if it thinks fit—

(a) if the ballot is uncompleted—order that no further steps shall be taken in the conduct of the ballot;

(b) make any order incidental or supplementary to an order under paragraph (a); and

(c) vary or discharge an order under paragraph (a) or (b).

“(2) An order under sub-regulation (1), unless sooner discharged or expressed to operate for a period that expires before the conclusion of the inquiry, shall continue in force until the conclusion of the inquiry.

Offences

“146zf. A person shall not—

(a) hinder or obstruct a person carrying out an inspection authorized under regulation 146zc; or

(b) refuse or fail to comply with an order of the Court under regulation 146ze.

Penalty: $500 or imprisonment for 6 months, or both.”.

Schedule 1

4. Schedule 1 to the Principal Regulations is amended by inserting after Form 39a the forms set out in the Schedule to these Regulations.

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SCHEDULE Regulation 4

FORMS TO BE INSERTED IN SCHEDULE 1 TO THE PRINCIPAL REGULATIONS

FORM 39b Sub-regulation 146q (1)

Conciliation and Arbitration Act 1904

NOTICE OF BALLOT IN RESPECT OF A PROPOSED AMALGAMATION

NOTICE is hereby given that a secret ballot by postal voting of the members of the (name of organization) who are entitled to vote in the ballot is to be conducted on the question whether those members approve the proposed amalgamation of that organization with the following organization (s), namely, (name of organization or each organization with which amalgamation is proposed).

A copy of the scheme for the proposed amalgamation will be sent to members entitled to vote in the ballot.

The commencing date of the ballot is

The closing date of the ballot is

(Signature, name and title of person conducting the ballot and address at which that person will carry out his duties while conducting the ballot)

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FORM 39c    Sub-regulation 146q (1)

Conciliation and Arbitration Act 1904

NOTICE OF BALLOT IN RESPECT OF AN ALTERNATIVE AMALGAMATION

NOTICE is hereby given that, at the same time as a secret ballot by postal voting of the members of the (name of organization) who are entitled to vote in the ballot is conducted on the question whether those members approve the proposed amalgamation of that organization with the following organizations, namely, (name of each organization with which amalgamation is proposed), a secret ballot by postal voting of those members is also to be conducted on the question whether, if the above-mentioned proposed amalgamation does not take place, those members approve the amalgamation of the first-named organization with the other organizations concerned in the amalgamation whose members give a like approval.

The commencing date of the ballot is

The closing date of the ballot is

(Signature, name and title of person conducting the ballot and address at which that person will carry out his duties while conducting the ballot)

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SCHEDULE—continued

FORM 39d Sub-regulation 146s (1)

Directions to Voter

1. Record your vote on the ballot paper as follows—

• if you approve the amalgamation referred to in the question set out below, write “yes” in the space provided opposite the question;

• if you do not approve the amalgamation referred to in the question set out below, write “no” in the space provided opposite the question.

2. Do not place on this paper any mark or writing by which you may be identified.

QUESTION FOR VOTERS–

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Further Directions:

After you have recorded your vote—

(a) fold this paper so as to conceal the way in which you have voted;

(b) place this paper in the envelope addressed to the person conducting the ballot and seal that envelope; and

(c) post the envelope so that it may reach the person conducting the ballot on or before (closing date of the ballot).

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SCHEDULE—continued

FORM 39e Sub-regulation 146s (2)

Directions to Voter

1. This paper contains 2 ballot papers. Record your vote on each ballot paper as follows—

• if you approve the amalgamation referred to in the question set out in the ballot paper, write “yes” in the space provided opposite the question;

• if you do not approve the amalgamation referred to in the question set out in the ballot paper, write “no” in the space provided opposite the question.

2. Do not place on this paper any mark or writing by which you may be identified.

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BALLOT PAPER IN RESPECT OF PROPOSED AMALGAMATION

QUESTION FOR VOTERS–

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BALLOT PAPER IN RESPECT OF ALTERNATIVE AMALGAMATION

Note: You will not be taken to have recorded a formal vote in this ballot on the question of an alternative amalgamation if you have not recorded in the first ballot a formal vote in favour of the proposed amalgamation.

QUESTION FOR VOTERS—

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Further Directions:

After you have recorded your votes—

(a) fold this paper so as to conceal the way in which you have voted;

(b) place this paper in the envelope addressed to the person conducting the ballots and seal that envelope; and

(c) post the envelope so that it may reach the person conducting the ballots on or before (closing date of the ballots).

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SCHEDULE—continued

FORM 39f Regulation 146za

Conciliation and Arbitration Act 1904

APPLICATION FOR INQUIRY UNDER SECTION 158p IN THE FEDERAL COURT OF AUSTRALIA

In the matter of an application for an inquiry concerning a ballot of the members of (name of organization).

I, (full name of applicant), of (address of applicant), being a member of the (name of organization) hereby apply for an inquiry by the Federal Court of Australia into the following irregularities that, I allege, have occurred in or in connection with the ballot specified hereunder. I rely on the facts stated hereunder in support of this application.

PARTICULARS OF BALLOT

Ballot of the members of (name of organization) in respect of the proposed amalgamation of that organization with (name of organization or each organization with which amalgamation is proposed).

or

Ballot of the members of (name of organization) on the question whether, if the proposed amalgamation of that organization with (name of other organizations concerned in the amalgamation) does not take place, they approve the amalgamation of (name of first-mentioned organization) with the other organizations concerned in the amalgamation whose members give a like approval.

*The ballot is uncompleted.

*The ballot was completed on (set out date).

PARTICULARS OF ALLEGED IRREGULARITIES

(Set out in numbered paragraphs particulars of the alleged irregularity or irregularities)

FACTS RELIED ON

(Set out in numbered paragraphs the facts relied on in support of the application)

Dated this   day of  19 .

Applicant.

*Omit, if inapplicable.

NOTES

1. Notified in the Commonwealth of Australia Gazette on 2 November 1984.

2. Statutory Rules 1956 No. 60 as amended to date. For previous amendments see Note 2 to Statutory Rules 1984 No. 20 and see also Statutory Rules 1984 Nos. 20, 21, 22 79, 101, 147 and 224.