Bills Digest No. 7 2002-03
Workplace Relations (Registration and Accountability of
Organisations) (Consequential Provisions) Bill 2002
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Contact Officer & Copyright Details
Workplace Relations (Registration
and Accountability of Organisations) (Consequential Provisions)
21 March 2002
House: House of Representatives
Portfolio: Employment and Workplace
The three principal
clauses of this Bill specifying its title, commencement and
schedules come into effect on the day the Act receives Royal
Assent. The substantive provisions of the Act contained in
Schedules 1 and 2 come into effect on a day to be fixed by
Proclamation. If a provision of the Act subject to commencement on
proclamation has not commenced within 6 months of the date the Act
receives Royal Assent, it commences on the first day
Relations (Registration and Accountability of Organisations)
(Consequential Provisions) Bill 2002 (the Bill) ensures the
continued registration of organisations (employer associations and
trade unions) as a transitional measure pending the proposed
Workplace Relations (Registration and Accountability of
Organisations) Act (the proposed RAO Act) coming into effect.
The Bill deletes the registration of
organisation provisions from the Workplace
Relations Act 1996 (WR Act), while the proposed RAO Act
will incorporate these provisions for the registration of
organisations and will become the principal legislation for the
registration and administration of industrial organisations. Such
areas include, for example, dealing with the democratic control of
organisation, the conduct of elections for officers and outlining
an accounting reporting framework for financial management of
organisations as well as other functions.
The Bill also provides transitional measures to
ensure, for example, that officers of organisations continue to
hold office over the transitional period, existing rules of
organisations to continue in effect and provides time for
organisations' rules to be updated as required by the proposed RAO
Act. The Bill also makes amendments to other Acts so as to make
reference to the proposed RAO Act. The Bill also makes some
amendments to the WR Act itself, for example, by restricting access
under the Act's 'right of entry' provisions.
Background to the policy grounds for reviewing
the registration of organisations, their rules, obligations and
accounting requirements can be found in Bills
Digest 171 2001 02(1) which reports on
the proposed RAO Act.
The overall effect of this Bill in respect of
the proposed RAO Act was outlined by Minister Tony Abbott MP in his
Second Reading Speech to this Bill on 21 March 2002.
There he stated:
Orders, injunctions, declarations, decisions,
determinations, exemptions or permissions that are operating before
the commencement of the proposed Registration and Accountability of
Organisations Act will continue in force as if they had been made
under the corresponding provisions of the new act. An organisation
that was registered under the Workplace Relations Act
would be taken to be registered under the proposed new act.
Existing rules of organisations would be
preserved, and continue in force as if they had been certified
under the new act. Organisations would have six months from the
commencement of the new act to update their rules (if necessary) to
bring them into conformity with the new legislative requirements,
with the Industrial Registrar able to grant extensions of time in
appropriate cases. Organisations would have up to 12 months from
the commencement of the new Act to remove from their register of
members persons who had been unfinancial for more than 24 months.
In general, amended financial and reporting obligations would apply
from the first full financial year after the commencement of the
new act or the gazettal of new reporting requirements. The
consequential provisions bill also provides that the Federal Court
would have the jurisdiction to hear and determine issues that may
arise in the application of the new Act to particular transitional
The Consequential Provisions Bill is a necessary
technical measure that complements the objectives of the Principal
Bill. In conjunction with that Bill, it will provide the legal
framework around which registered organisations can update and
upgrade their administrative and reporting practices in order to
become more accountable, more competitive and better equipped to
deal with the demands of their membership and the workplace
Clause 1 provides the citation
to the proposed Act, as the Workplace Relations (Registration
and Accountability of Organisations) (Consequential Provisions) Act
Clause 2 sets out the
commencement of the various provisions of the proposed Act.
Clause 3 introduces
four schedules containing the substantive
provisions and consequential amendments.
Item 2 provides that an
authorisation, certificate, decision, declaration, determination,
direction, exemption, injunction order, notice or permission made
under the repealed provisions of the WR Act continue, as if made
under the corresponding provision of the proposed RAO Act.
Item 3 provides that
obligations imposed on a person or body under repealed provisions
of the WR Act continue.
Item 4 provides that a person
elected office under a repealed provision of the WR Act continues
to hold that office for the remainder of its term under the
proposed RAO Act.
Item 5 provides that in any
proceedings or matters before a court, the Australian Industrial
Relations Commission (the Commission) or the Australian Industrial
Registrar (the Registrar) commenced under repealed provisions of
the WR Act, that Act will continue to operate. However,
Sub-item 4 notes that any order made as a result
of such proceedings is taken to have been made under the
corresponding provisions of the proposed RAO Act (see item 2).
Sub-item (5) specifies that any penalty to be
applied, as a result of such proceeding will be the relevant
penalty under the WR Act, and not the penalty under the proposed
Items 8 and 9
respectively confer power to the President of the Commission and to
the Federal Court to resolve any difficulties arising from the
provisions of this Bill. An 'interested person' may make an
application to the Federal Court.
Item 11 deems the register of
organisations kept by the Registrar under paragraph 63 (1)(a) of
the WR Act to be the register under paragraph 13(1)(a) of the
proposed RAO Act.
Item 12 allows an application
by an association for registration under the WR Act, to be
determined under the WR Act.
Item 15 deems that an
organisation registered under the WR Act to be registered under the
proposed RAO Act.
Item 17 allows an application
for an amalgamation made under the WR Act (section 242) to be
determined under the WR Act, subject to some exceptions in relation
to amalgamation proceedings.
Items 19 and 20 allow
amalgamation processes commenced under the WR Act to continue,
although the respective ballot provisions of the proposed RAO Act
will also apply.
Item 21 allows an application
made to the Federal Court for a disamalgamation ballot to be
conducted (if the Court so determines) under the relevant
provisions of the WR Act. However certain provisions of the
proposed RAO Act, in respect of the criteria for making the
application and eligibility to vote considerations, will also
apply. Items 22 and 23 also address the processes
of withdrawal from an amalgamation.
Item 24 allows an application
for deregistration (of a registered organisation) to proceed before
commencement of the proposed RAO Act. Grounds for deregistration
are set out in this item, which parallel those in the proposed RAO
Act and include conduct hindering an object of the WR Act, an
action interfering with trade or affecting community health and
safety and failure to comply with injunctions to cease industrial
action and demands for payment during industrial action.
Item 25 specifies that rules of
a registered organisation which were in force immediately before
commencement of the proposed RAO Act continue in force after
commencement (but may be altered).
Item 26 specifies new rule
requirements pertaining to the proposed RAO Act. Sub-item
2 restrains the Registrar from altering an organisation's
rules to bring them into conformity with the proposed RAO Act
during the interim period. Sub-item 3 defines the
interim period and allows organisations a period of 6
months immediately after commencement to address their rules. The
period can be extended at the discretion of the Registrar to a
maximum of a further 6 months (sub-item 4).
Item 27 requires the Registrar
to review the rules of organisations as soon as practicable after
expiry of the interim period. If the rules do not meet
requirements, the registrar may alter them under section 156 of the
proposed RAO Act.
Item 28 allows a full-time
office-holder to remain in office beyond the end of his/her term in
order to reach retirement age if nominations for the election
closed before commencement of the proposed RAO Act.
Item 29 allows membership
agreements between State-registered unions and federally registered
organisation to continue to have effect. This includes any
agreement to terminate such an arrangement.
Item 30 allows organisation
changes such as changes to eligibility rules, the name of the
organisation and so-on, to be entered into the register under the
relevant provisions of the proposed RAO Act, where such changes
have begun prior to commencement.
Item 32 allows a resignation
from an organisation, whereby notice had been provided before
commencement, to be effected under the resignation provisions of
the WR Act.
Item 33 allows the recovery of
membership arrears (for up to 12 months) to be processed under
either the WR Act or the proposed RAO Act depending on when the
arrears become payable.
Part 5 Democratic control
Item 34 allows steps in the
process of election to office initiated under the relevant
provisions of the WR Act to continue to apply, but the election
process may be completed under provisions of the proposed RAO
Item 35 allows the WR Act to
continue to apply in respect of elections completed before
commencement of the proposed RAO Act, and to apply to any
post-election inquiry (by the Australian Election Commission).
Item 37 specifies that should
any inquiry result in a Federal Court order for a new election,
this election shall be conducted under the proposed RAO Act.
Items 39 to 41 address matters
to do with holding of office where the office holder or applicant
has previous convictions. The provisions allow applications made
under the relevant provisions of the WR Act (sections 227 and 228)
to continue as if those provisions continue.
Item 42 is a deeming provision
under which an organisation's register of members and list offices
active under the WR Act are taken to be the membership register and
offices under the relevant provisions of the RAO Act.
Items 44 to 47 deal with the
maintenance of accounting records, audit and the rights of members
to access accounting records during the period until the provisions
of the RAO Act come into effect (until the first financial year),
starting after commencement of the reporting guidelines.
Items 48 and 49 set up a scheme
to allow inquiries and investigations conducted by the Registrar
over allegations of financial malfeasance commenced under the WR
Act to continue in relation to conduct that occurs before the first
financial year commences.
Item 50 is to enforce the
conduct code prescribed in Chapter 9 of the RAO Act, and is
designed, it appears, to enforce officials to comply with
directions of the Commission and Federal Court to cease industrial
action. The Minister alerted to these new duties (and consequences)
in the Second Reading Speech, noted in Bills
Digest 171 2001 02:
The Bill establishes duties on (sic) officers
and employees of organisations to comply with orders and directions
of the Australian Industrial Relations Commission and the Federal
Court. Breach of these duties would result in financial penalties,
and in the case of officers of organisations, disqualification from
holding or seeking office. These provisions which did not form part
of the 2001 Bill, have been included in recognition of the fact
that such breaches pose a threat to the integrity of the federal
workplace relations system.(3)
The Explanatory Memorandum to the Bill notes
that items under this Part are mainly of a technical nature.
Item 55 enables regulations to
be made about matters of a transitional, application or saving
Schedule 2 Amendment of the
Workplace Relations Act 1996
Provisions under this Schedule make amendments
repealing most provisions under Part lX and Part X of the WR Act
which deal with the registration of organisations and the
cancellation of registration (see items 92 to 95).
Item 83 inserts new clause 170LKA into the WR Act
mirroring the provisions of current section 291A of the WR Act
which will be repealed under item 94. The
provisions allow the Registrar to issue a certificate concerning a
request by a member of an organisation (for an organisation's
representative to meet with the employer about a proposed certified
agreement). The certificate states that under certain
circumstances, the employer's obligation will have been
Two further substantive amendments to be made to
the WR Act include proposed section 45A (item 43)
and proposed section 174A (item 86).
Proposed section 45A concerns appeals to a Full
Bench of the Commission arising from a decision/order of a member
about an issue arising under the proposed RAO Act. Proposed
section 174A duplicates current section 174 (of the WR
Act) allowing demarcation disputes to be referred
to State industrial tribunals (when necessary).
Provisions under this Schedule amend other
Commonwealth Acts consequential to the enactment of the RAO Act and
repeal of provisions of the WR Act. The following Acts are to be
Builders Labourers Federation (Cancellation of Registration
Consequential Provisions) Act 1986
Commonwealth Authorities and Companies Act
Commonwealth Electoral Act 1918
Crimes Act 1914
Disability Discrimination Act 1992
Equal Opportunity for Women in the Workplace
Human Rights and Equal Opportunity
Commission Act 1986
Income Tax Assessment Act 1936
Insurance Act 1973
Life Insurance Act 1995
Long Service Leave (Commonwealth Employees)
Navigation Act 1912
Petroleum (Submerged Lands) Act
Sex Discrimination Act 1984
Superannuation Act 1976
Superannuation Industry (Supervision) Act
United States Naval Communication Station
(Civilian Employees) Act 1968
Item 2 inserts new
subsections 285C(3)-(7) into the WR Act. The Government
currently seeks to exempt 'small business' from the unfair
dismissal laws of the WR Act (see Bills
Digest 79, 2001 02 for an explanation the current and
previous proposals). These new provisions of item 2 make a similar
but smaller concession to small business employers (defined as
employers of 20 employees or less) in respect of 'right of entry'
to an employer's workplace. The WR Act's 'right of entry'
provisions can be found in Part 1X under Division 11A. The
intention of the new provisions is to prevent access by permit
holders (often union officers) for the purposes of holding
discussions with employees, who are not union members (but who may
be eligible to become members).
The denial of this right hinges on the
conscientious beliefs of the employer, and the employer obtaining a
certificate from the Australian Industrial Registrar to that effect
(as required by section 267 of the WR Act). The circumstances
- the Registrar to issue a certificate to the employer confirming
his/her objection to organisation membership on the grounds of
his/her religious beliefs under the WR Act's conscientious
objection provisions. It is helpful to recall that the
conscientious objection provisions ordinarily allow a person to
remain a non-member (typically of a union) and has not normally
extended to an employer obtaining a certificate confirming his own
beliefs in order to restrict the right of entry of permit holders
to visit the employer's employees.
- the employer who holds such a certificate employs 20 or fewer
employees, none of whom are members of the particular employee
organisation. New subsection 285C(5) requires that
all of the employees have agreed that the employer's application
should be endorsed, (which does not appear as the employees
actually having endorsed the application).
The combined affect of this Bill and the
Workplace Relations (Registration and Accountability of
Organisations) Bill 2002 is to significantly streamline the
contents and scope of the WR Act.
Digest 171 2001 02(4) made reference
to an article in the Australian Financial
Review(5) which reported on political agreement to
pass the contents of the proposed RAO Act but not in the form of a
new statute. Rather, the current WR Act's registration provisions
would be amended and moved to become a schedule to the WR Act. It
would be prudent to reserve comments about the new arrangements
until amendments to the Bills (or indeed any new Bills) are
presented to Parliament.
- Workplace Relations (Registration and Accountability of
Organisations) Bill 2002, Bills
Digest 171, 2001 02.
- The Hon. Tony Abbott MP, House of Representatives,
Debates, 21 March 2002, p. 1835.
- Cited at Endnote 1.
- Labor gives union bill the green light , 29 May 2002.
13 August 2002
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