On 14 November 2013, the Senate referred the provisions of the Fair Work
(Registered Organisations) Amendment Bill 2013 to the Senate Education and
Employment Committee (the committee) for inquiry and report by 2 December 2013.
Conduct of inquiry
Details of the inquiry were made available on the committee's website. The
committee also contacted a number of organisations inviting submissions to the
inquiry. Submissions were received from 20 individuals and organisations, as
detailed in Appendix 1. A public hearing was held in Melbourne on 26 November
2013. The witness list for that hearing is available in Appendix 2.
The Fair Work (Registered Organisations) Amendment Bill 2012 was
referred to this committee for inquiry and report by 19 June 2012. The Fair
Work (Registered Organisations) Amendment Act 2012 received Royal Assent on
29 June 2012. Schedule 1 Part 1 commenced on 29 June 2012 and Schedule 1 Part 2
will commence on 1 January 2014. Registered Organisations have been working
with the Fair Work Commission to prepare for the commencement of the Act early
next year. The bill proposes to amend this Act.
Overview of the bill
The bill was introduced in the House of Representatives by the Hon
Christopher Pyne MP, on 14 November 2013,
and proposes to amend both the Fair Work Act 2009 and the Fair Work
(Registered Organisations) Act 2009
in order to implement the Government's workplace relations policy following
the election on 7 September 2013.
Broadly, the bill proposes to:
Establish an independent Registered Organisations Commission to
monitor and regulate registered organisations with enhanced investigative and
information gathering powers;
Amend requirements on officer's disclosure of material personal
interests and change grounds for disqualification and ineligibility for office;
Strengthen existing financial accounting, disclosure and
transparency obligations under the Fair Work (Registered Organisations) Act
2009 and making them enforceable as civil remedy provisions;
Increase civil penalties and introduce criminal offences for
serious breaches of officer's duties as well as new offences in relation to the
conduct of investigations under the Fair Work (Registered Organisations) Act
Structure of the bill
The bill is composed of two schedules, each divided into two parts.
Part one of each schedule contains the substantive provisions with part two
containing the transitional provisions.
Schedule 1: Establishment of the
Registered Organisations Commission
Schedule one proposes the establishment of the Registered Organisations
Commissioner (the Commissioner) and the Registered Organisations Commission
(the Commission). The Commissioner's functions and powers reflect those
previously held by the Fair Work General Manager and the enhanced investigation
skills of the Commissioner to increase civil penalties that will operate on the
commencement of Schedule 2 of the bill.
The schedule sets out the terms and conditions of appointment of the
Registered Organisations Commissioner, and includes the provision of staff from
the Fair Work Commission. The bill also proposes to establish the Registered
Organisations Commission Special Account – this would ensure that the
Commission is independently funded.
Schedule 1 also sets out consequential, transitional and savings
provisions relating to the substantive provisions establishing the office of
Schedule 2: Disclosure
requirements, investigation powers and penalties
Schedule 2 proposes to increase the obligations on
registered organisations and their officers, as well as increasing the civil
penalties for non-compliance;
and sets out further transitional provisions required by the increased
obligations on organisations and the increased powers of the Commissioner, as
detailed in Part 1 of Schedule 2.
Compatibility with human rights
The bill engages the following human rights:
The right to freedom of association;
The right to the presumption of innocence and the minimum
The prohibition on unlawful and arbitrary interference with
privacy and reputation.
The right to freedom of association
The bill proposes to make amendments to the Fair Work (Registered
Organisations) Act 2009 that engage the right to freedom of association,
Placing restrictions on officers from taking part in decision
making in limited circumstances; and
Increasing circumstances in which an officer may be disqualified
from holding office in an organisation.
The explanatory memorandum states that, 'the limitations on the right
are permissible limitations as they pursue a legitimate objective, are
prescribed by law and are reasonable, necessary and appropriate.'
Further, the bill is intended to address:
Government and community concerns that in light of recent
investigations and prosecutions of officials of registered organisation
relating to misuse of position and member funds, the current regulation of
registered organisations is not satisfactory in preventing fraud, financial
mismanagement and adequate democratic governance in the interests of members.
The explanatory memorandum suggests that while the bill does engage the
right to freedom of association, it does so with the objective of protecting
the interests of members and democratic functioning of organisations.
The International Labor Organisation (ILO) has previously held that such
engagement of the right is appropriate in that specific context.
The right to the presumption of
The explanatory memorandum details the engagement of the right to the
presumption of innocence, noting that the proposed provision 337AA provides for
certain offences to be strict liability offences.
It is suggested that this limitation is 'reasonable insofar as each of the
offences relates to a person's failure to comply with a requirement made of
them relating to the conduct of an investigation...'
The explanatory memorandum also notes that '...the offences of strict liability
could be characterised as regulatory in nature and not punishable by a term of
The right to privacy and reputation
The bill proposes the transfer of investigative and information
gathering powers of the General Manager of Fair Work Australia be transferred
to the Registered Organisations Commissioner. The explanatory memorandum states
that these powers will be expanded to include, under subsection 335(1), the
provision of information, documents and other evidence to the Commission on
The explanatory memorandum states that 'these expanded investigation and
information gathering powers limit the right to privacy, however this
limitation is permissible insofar as it is for a legitimate objective and is
necessary, reasonable and proportionate.'
The explanatory memorandum maintains that the bill is compatible with human
rights because, 'to the extent that it may limit human rights, those
limitations are reasonable, necessary and proportionate.'
Financial impact statement
There appears to be no overall financial or budgetary impact for the
Government for this bill.
The Regulatory Impact Statement states the compliance cost for each
registered organisation to be about $3,000 per year on average,
and that the 'large majority' of organisations will be able to absorb these
costs by either passing the costs on to members or examining the cost with
respect to other financial assets and staffing resources.
Consideration by legislative scrutiny and human rights committees
This bill has not yet been considered by the Parliamentary Joint
Committee on Human Rights. The Senate Standing Committee for the Scrutiny of
Bills is currently examining the bill.
The committee thanks those individuals and organisations who contributed
to the inquiry by preparing written submissions and giving evidence at the
Notes on references
References in this report to the Hansard for the public hearing are to
the Proof Hansard. Please note that page numbers may vary between the proof and
the official transcripts.
Navigation: Previous Page | Contents | Next Page