Fair Work (Registered Organisations) Act 2009

Part 2 also sets out the consequences of an amalgamation (for example, in relation to assets and liabilities of the organisations forming the new amalgamated organisation). It also enables the validation of certain acts done for the purposes of an amalgamation.

The main elements of the procedure to withdraw are an application to the FWC for approval to hold a ballot on the question, and the holding of the ballot.

Part 3 also sets out the consequences of a withdrawal from amalgamation (for example, in relation to assets and liabilities of the amalgamated organisation and the constituent part). It also enables the validation of certain acts done for the purposes of a withdrawal from amalgamation.

amalgamated organisation, in relation to a completed amalgamation, means the organisation of which members of the de‑registered organisations have become members under paragraph 73(3)(d).

amalgamation day, in relation to a completed amalgamation, means the day fixed under subsection 73(2) in relation to the amalgamation.

(a) any legal or equitable estate or interest (whether present or future, vested or contingent, tangible or intangible) in real or personal property of any description; and
(c) any right, interest or claim of any kind in, or in relation to, property (whether arising under an instrument or otherwise, and whether liquidated or unliquidated, certain or contingent, accrued or accruing).

authorised person, in relation to a completed amalgamation, means the secretary of the amalgamated organisation or a person authorised, in writing, by the committee of management of the amalgamated organisation.

charge means a charge created in any way, and includes a mortgage and an agreement to give or execute a charge or mortgage (whether on demand or otherwise).

closing day, in relation to a ballot for a proposed amalgamation, means the day, from time to time, fixed under section 58 as the closing day of the ballot.

commencing day, in relation to a ballot for a proposed amalgamation, means the day, from time to time, fixed under section 58 as the commencing day of the ballot.

de‑registered organisation, in relation to a completed amalgamation, means an organisation that has been de‑registered under this Part.

holder, in relation to a charge, includes a person in whose favour a charge is to be given or executed (whether on demand or otherwise) under an agreement.

(d) under which any money is or may become payable, or any other property is to be, or may become liable to be, transferred, conveyed or assigned, to or by a de‑registered organisation.

(a) in relation to a company—includes an interest in a managed investment scheme, within the meaning of the Corporations Act 2001, made available by the company; and

irregularity includes a breach of the rules of an organisation, but in Division 7 does not include an irregularity in relation to a ballot.

liability means a liability of any kind, and includes an obligation of any kind (whether arising under an instrument or otherwise, and whether liquidated or unliquidated, certain or contingent, accrued or accruing).

proceeding to which this Part applies, in relation to a completed amalgamation, means a proceeding to which a de‑registered organisation was a party immediately before the amalgamation day.

proposed alternative amalgamation, in relation to a proposed amalgamation, 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 under this Part.

proposed amalgamation means the proposed carrying out of arrangements in relation to 2 or more organisations under which:

(b) members of the organisation or organisations to be de‑registered are to become members of another organisation (whether existing or proposed).

proposed de‑registering organisation, in relation to a proposed amalgamation, means an organisation that is to be de‑registered under this Part.

(a) if the scheme for the amalgamation contains an alternative provision—the amalgamation proposed to be made under the scheme otherwise than under an alternative provision; or

(1) For the purpose of implementing the scheme for a proposed amalgamation, the procedure provided by this Part is to be followed. (3) If any difficulty arises, or appears likely to arise, in the application of this Act for the purpose of implementing the scheme for a proposed amalgamation, the FWC may give directions and make orders to resolve the difficulty.

(1) The existing organisations concerned in a proposed amalgamation may jointly lodge with the FWC an application for recognition as a federation. (3) If the FWC is satisfied that the organisations intend to lodge an application under section 44 in relation to the amalgamation within the prescribed period, the FWC must grant the application for recognition as a federation. (4) If the application is granted, the General Manager must enter in the register kept under subsection 13(1) such details in relation to the federation as are prescribed. (5) On registration, the federation may, subject to subsection (6) and the regulations, represent its constituent members for all of the purposes of this Act and the Fair Work Act. (a) including, with the approval of the FWC, another organisation within the federation if the other organisation intends to become concerned in the amalgamation; or (b) if an application under section 44 is not lodged in relation to the amalgamation within the prescribed period—on the day after the end of the period; or (c) if it appears to a Full Bench, on an application by a prescribed person, that the industrial conduct of the federation, or an organisation belonging to the federation, is preventing or hindering the attainment of Parliament’s intention in enacting this Act (see section 5) or an object of this Act or the Fair Work Act—on the day the Full Bench so determines. (9) Nothing in this section limits the right of an organisation belonging to a federation to represent itself or its members.

(1) An existing organisation concerned in a proposed amalgamation may, at any time before the closing day of the ballot for the amalgamation, use its financial and other resources in support of the proposed principal amalgamation and any proposed alternative amalgamation if: (2) Subsection (1) does not limit by implication any power that the existing organisation has, apart from that subsection, to use its financial and other resources in support of, or otherwise in relation to, the amalgamation.

(a) a general statement of the nature of the amalgamation, identifying the existing organisations concerned and indicating:
(ii) if an association proposed to be registered as an organisation is the proposed amalgamated organisation—that fact and the name of the association; and
(c) if it is proposed to alter the eligibility rules of an existing organisation—particulars of the proposed alterations;
(e) if an association is proposed to be registered as an organisation—the eligibility and other rules of the association;

(1) Where 3 or more existing organisations are concerned in a proposed amalgamation, the scheme for the amalgamation may contain a provision to the effect that, if: (b) the members of 2 or more of the organisations (in this subsection called the approving organisations) approve, in the alternative, the amalgamation so far as it involves: (c) where one of the existing organisations is the proposed amalgamated organisation—that organisation is one of the approving organisations; (2) If the scheme for a proposed amalgamation contains an alternative provision, the scheme must also contain particulars of: (b) the differences between the rules of any association proposed to be registered as an organisation, and any proposed alterations of the rules of the existing organisations, under the proposed principal amalgamation and each proposed alternative amalgamation.

(1) The scheme for a proposed amalgamation, and each alteration of the scheme, must be approved, by resolution, by the committee of management of each existing organisation concerned in the amalgamation. (2) Despite anything in the rules of an existing organisation, approval, by resolution, by the committee of management of the scheme, or an alteration of the scheme, is taken to be sufficient compliance with the rules, and any proposed alteration of the rules contained in the scheme, or the scheme as altered, is taken to have been properly made under the rules.

(1) The existing organisations concerned in a proposed amalgamation may jointly lodge with the FWC an application for a declaration under this section in relation to the amalgamation. (3) If the application is lodged before an application has been lodged under section 44 in relation to the amalgamation, the FWC: (4) If, at the conclusion of the hearing arranged under subsection (3) or section 53 in relation to the proposed amalgamation, the FWC is satisfied that there is a community of interest between the existing organisations in relation to their industrial interests, the FWC must declare that it is so satisfied. (5) The FWC must be satisfied, for the purposes of subsection (4), that there is a community of interest between organisations of employees in relation to their industrial interests if the FWC is satisfied that a substantial number of members of one of the organisations are: (b) engaged in the same work or in aspects of the same or similar work as members of the other organisation or each of the other organisations; or (d) employed in the same or similar work by employers engaged in the same industry as members of the other organisation or each of the other organisations; or (e) engaged in work, or in industries, in relation to which there is a community of interest with members of the other organisation or each of the other organisations. (6) The FWC must be satisfied, for the purposes of subsection (4), that there is a community of interest between organisations of employers in relation to their industrial interests if the FWC is satisfied that a substantial number of members of one of the organisations are: (b) engaged in the same industry or in aspects of the same industry or similar industries as members of the other organisation or each of the other organisations; or (d) engaged in industries in relation to which there is a community of interest with members of the other organisation or each of the other organisations. (7) Subsections (5) and (6) do not limit by implication the circumstances in which the FWC may be satisfied, for the purposes of subsection (4), that there is a community of interest between organisations in relation to their industrial interests. (a) an application for a declaration under this section in relation to a proposed amalgamation is lodged before an application has been lodged under section 44 in relation to the amalgamation; and (c) an application is not lodged under section 44 in relation to the amalgamation within 6 months after the declaration is made; (9) The FWC may revoke a declaration under this section if the FWC is satisfied that there is no longer a community of interest between the organisations concerned in relation to their industrial interests.

(1) The existing organisations concerned in a proposed amalgamation, and any association proposed to be registered as an organisation under the amalgamation, must jointly lodge with the FWC an application for approval for the submission of the amalgamation to ballot. (3) Subject to section 62, the outline must, in no more than 3,000 words, provide sufficient information on the scheme to enable members of the existing organisations to make informed decisions in relation to the scheme.

(a) an association proposed to be registered as an organisation that is the proposed amalgamated organisation under a proposed amalgamation; or
(c) the holding of office in the proposed amalgamated organisation by persons holding office in any of the proposed de‑registering organisations immediately before the amalgamation takes effect; and
(d) in a case to which paragraph (b) applies—the continuation of the holding of office by persons holding office in the proposed amalgamated organisation immediately before the amalgamation takes effect;
(e) the period that equals the unexpired part of the term of the office held by the person immediately before the day on which the amalgamation takes effect; or

the rules of the proposed amalgamated organisation must not permit the person to hold an office in the proposed amalgamated organisation after the amalgamation takes effect, without an ordinary election being held in relation to the office, for longer than the period that equals the unexpired part of the term of the office mentioned in paragraph (a) immediately before the day on which the amalgamation takes effect. (3) The rules of an organisation that is the proposed amalgamated organisation under a proposed amalgamation must, subject to this section, make reasonable provision for the purpose of synchronising elections for offices in the organisation held under paragraph (1)(c) with elections for other offices in the organisation.

(1) The proposed amalgamated organisation under a proposed amalgamation may lodge with the FWC an application for exemption from the requirement that a ballot of its members be held in relation to the amalgamation.

(1) An existing organisation concerned in a proposed amalgamation may lodge with the FWC an application for approval of a proposal for the submission of the amalgamation to a ballot of its members that is not conducted under section 65.

(1) Subject to section 60, an existing organisation concerned in a proposed amalgamation may lodge a written statement of not more than 2,000 words in support of the proposed principal amalgamation and each proposed alternative amalgamation.

(1) Where an application is lodged under section 44 in relation to a proposed amalgamation, the General Manager must immediately notify the AEC of the application. (2) On being notified of the application, the AEC must immediately take such action as it considers necessary or desirable to enable it to conduct as quickly as possible any ballots that may be required in relation to the amalgamation.

(1) An electoral official who is authorised, in writing, by the AEC for the purposes of a proposed amalgamation may, where it is reasonably necessary for the purposes of any ballot that may be required or is required in relation to the amalgamation, by written notice, require an officer or employee of the organisation concerned or a branch of the organisation concerned: (a) to give to the electoral official, within the period (being a period of not less than 7 days after the notice is given), and in the manner, specified in the notice, any information within the knowledge or in the possession of the person; and (b) to produce or make available to the electoral official, at a reasonable time (being a time not less than 7 days after the notice is given) and place specified in the notice, any documents: (2) An officer or employee of an organisation or branch of an organisation commits an offence if he or she fails to comply with a requirement made under subsection (1).

Note: A defendant bears an evidential burden in relation to the matter mentioned in subsection (4), see subsection 13.3(3) of the Criminal Code.

(5) A person is not excused from giving information or producing or making available a document under this section on the ground that the information or the production or making available of the document might tend to incriminate the person or expose the person to a penalty. (b) any information, document or thing obtained as a direct or indirect consequence of giving the information or producing or making available the document; is not admissible in evidence against the person in criminal proceedings or proceedings that may expose the person to a penalty, other than proceedings under, or arising out of, subsection 52(3). (7) If any information or document specified in a notice under subsection (1) is kept in electronic form, the electoral official may require it to be made available in that form.

(1) If a requirement is made under subsection 51(1) in relation to the register, or part of the register, kept by an organisation under section 230, the secretary or other prescribed officer of the organisation must make a declaration, in accordance with subsection (2), that the register has been maintained as required by subsection 230(2).

(b) given to the returning officer, and lodged with the FWC, as soon as practicable but no later than the day before the first day of voting in the relevant election.

(3) A person must not, in a declaration for the purposes of subsection (1), make a statement if the person knows, or is reckless as to whether, the statement is false or misleading.

(ii) if an application for a declaration under section 43 was lodged with the application—the making of a declaration under section 43 in relation to the amalgamation; and
(iii) if an application was lodged under section 46 for exemption from the requirement that a ballot be held in relation to the amalgamation—the granting of the exemption; and
(iv) if an application was lodged under section 47 for approval of a proposal for the submission of the amalgamation to a ballot that is not conducted under section 65—the granting of the approval; and

(3) Submissions may be made by another person only with the leave of the FWC and may be made by the person only in relation to a prescribed matter.

(1) If, at the conclusion of the hearing arranged under section 53 in relation to a proposed amalgamation, the FWC is satisfied that: (b) a person who is not eligible for membership of an existing organisation concerned in the amalgamation would not be eligible for membership of the proposed amalgamated organisation immediately after the amalgamation takes effect; and (c) 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; and (d) any proposed alterations of the rules of an existing organisation comply with, and are not contrary to, this Act, the Fair Work Act, modern awards or enterprise agreements, and are not contrary to law; and (e) any proposed de‑registration of an existing organisation complies with this Act and is not otherwise contrary to law; (2) If the FWC is not satisfied, the FWC must, subject to subsections (3) and (7), refuse to approve, under this section, the submission of the amalgamation to ballot. (3) If, apart from this subsection, the FWC would be required to refuse to approve the submission of the amalgamation to ballot, the FWC may: (a) permit the applicants to alter the scheme for the amalgamation, including any proposed alterations of the rules of the existing organisations concerned in the amalgamation; or (b) accept an undertaking by the applicants to alter the scheme for the amalgamation, including any proposed alterations of the rules of the existing organisations concerned in the amalgamation; and, if the FWC is satisfied that the matters mentioned in subsection (1) will be met, the FWC must approve the submission of the amalgamation to ballot. (a) may, despite anything in the rules of an existing organisation concerned in the proposed amalgamation, authorise the organisation to alter the scheme (including any proposed alterations of the rules of the organisation) by resolution of its committee of management; and (b) may make provision in relation to the procedure that, despite anything in those rules, may be followed, or is to be followed, by the committee of management in that regard; and (c) amend the scheme for the amalgamation, including any proposed alterations of the rules of the existing organisations concerned in the proposed amalgamation; or (7) If, apart from this subsection, the FWC would be required to refuse to approve the submission of the amalgamation to ballot, the FWC may adjourn the proceeding.

(2) Objection may be made to the FWC in relation to the amalgamation only if the FWC has refused to approve, under section 55, the submission of the amalgamation to ballot.

(1) If, after the prescribed time allowed for making objections under section 56 in relation to a proposed amalgamation and after hearing any objections duly made to the amalgamation, the FWC: it complies with, and is not contrary to, this Act, the Fair Work Act, modern awards and enterprise agreements and is not otherwise contrary to law; (2) If the FWC is not satisfied, the FWC must, subject to subsections (3) and (8), refuse to approve, under this section, the submission of the amalgamation to ballot. (3) If, apart from this subsection, the FWC would be required to refuse to approve the submission of the amalgamation to ballot, the FWC may: and, if the FWC is satisfied that the matters mentioned in subsection (1) will be met, the FWC must approve the submission of the amalgamation to ballot. (a) may, despite anything in the rules of any association proposed to be registered as an organisation in relation to the proposed amalgamation, authorise the existing organisations concerned in the amalgamation to alter the scheme so far as it affects that association (including any of its rules) by resolution of their committees of management; and (b) may make provision in relation to the procedure that, despite anything in the rules of the existing organisations or the rules of the association, may be followed, or is to be followed, by the committees of management in that regard; and (a) may, despite anything in the rules of an existing organisation concerned in the proposed amalgamation, authorise the organisation to alter the scheme (including any proposed alterations of the rules of the organisation, but not including the scheme so far as it affects any association proposed to be registered as an organisation in relation to the proposed amalgamation) by resolution of its committee of management; and (b) may make provision in relation to the procedure that, despite anything in those rules, may be followed, or is to be followed, by the committee of management in that regard; and (8) If, apart from this subsection, the FWC would be required to refuse to approve the submission of the amalgamation to ballot, the FWC may adjourn the proceeding.

(1) If the FWC approves, under section 55 or 57, the submission of a proposed amalgamation to ballot, the FWC must, after consulting with the Electoral Commissioner, fix a day as the commencing day of the ballot and a day as the closing day of the ballot. (a) the FWC is satisfied that the AEC requires a longer period to make the arrangements necessary to enable it to conduct the ballot; or (3) If the scheme for the amalgamation contains a proposed alternative provision, a single day is to be fixed as the commencing day, and a single day is to be fixed as the closing day, for all ballots in relation to the proposed amalgamation.

The roll of voters for a ballot for a proposed amalgamation is the roll of persons who, on the day on which the FWC fixes the commencing day and closing day of the ballot or 28 days before the commencing day of the ballot (whichever is the later): (b) if the rules of the existing organisation concerned 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.

(1) If an existing organisation concerned in a proposed amalgamation lodges a statement under section 48 in relation to the amalgamation, the FWC may permit the organisation to alter the statement. (2) Not later than 7 days before the day fixed under section 53 for hearing submissions in relation to the amalgamation, members of the organisation (being members whose number is at least the required minimum number) may lodge with the FWC a written statement of not more than 2,000 words in opposition to the proposed principal amalgamation and any proposed alternative amalgamation. (4) Subject to subsections (5), (6) and (7), a copy of the statements mentioned in subsections (1) and (2), or, if those statements have been altered or amended, those statements as altered or amended, must accompany the ballot paper sent to the persons entitled to vote at a ballot for the amalgamation. (a) the FWC must 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 FWC must accompany the ballot paper for the amalgamation as if it had been the sole statement lodged under subsection (2). (6) The FWC may amend a statement mentioned in subsection (1) or (2) to correct factual errors or to ensure that the statement complies with this Act. (7) A statement mentioned in subsection (1) or (2) may, if the FWC approves, include matter that is not in the form of words, including, for example, diagrams, drawings, illustrations, photographs and symbols. (8) A statement prepared under subsection (5) may include matter that is not in the form of words, including, for example, diagrams, drawings, illustrations, photographs and symbols.

(a) 5% of the total number of members of the organisation on the day on which the application was lodged under section 44 in relation to the proposed amalgamation concerned; or

(1) The FWC may, at any time before the commencing day of the ballot for a proposed amalgamation, permit the existing organisations concerned in the amalgamation to alter the scheme for the amalgamation, including: (a) may, despite anything in the rules of any association proposed to be registered as an organisation in relation to the proposed amalgamation, authorise the existing organisations concerned in the amalgamation to alter the scheme so far as it affects that association (including any of its rules) by resolution of their committees of management; and (b) may make provision in relation to the procedure that, despite anything in the rules of the existing organisations or the rules of the association, may be followed, or is to be followed, by the committees of management in that regard; and (a) may, despite anything in the rules of an existing organisation concerned in a proposed amalgamation, authorise the organisation to amend the scheme (including any proposed alterations of the rules of the organisation, but not including the scheme so far as it affects any association proposed to be registered as an organisation in relation to the proposed amalgamation) by resolution of its committee of management; and (b) may make provision in relation to the procedure that, despite anything in those rules, may be followed, or is to be followed, by the committee of management in that regard; and (6) If the scheme for the amalgamation is altered or amended (whether under this section or otherwise), the outline of the scheme must be altered or amended to the extent necessary to reflect the alterations or amendments.

(2) The outline may, if the FWC approves, include matter that is not in the form of words, including, for example, diagrams, drawings, illustrations, photographs and symbols. (a) may, at any time before the commencing day of the ballot for the amalgamation, permit the existing organisations concerned in the amalgamation to alter the outline; and

(a) an application was lodged under section 46 for exemption from the requirement that a ballot be held in relation to a proposed amalgamation; and
(b) 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 25% of the number of members of the applicant organisation on the day on which the application was lodged;

the FWC must, at the conclusion of the hearing arranged under section 53 in relation to the amalgamation, grant the exemption unless the FWC considers that, in the special circumstances of the case, the exemption should be refused. (2) If the exemption is granted, the members of the applicant organisation are taken to have approved the proposed principal amalgamation and each proposed alternative amalgamation (if any).

If: (a) an application was lodged under section 47 for approval of a proposal for submission of a proposed amalgamation to ballot that is not conducted under section 65; and (iv) the members to be given at least 21 days’ notice of the meetings, the matters to be considered at the meetings and their entitlement to an absent vote; and (A) to result in participation by members of the organisation that is fuller than the participation that would have been likely to have resulted if the ballot were conducted under section 65; and the FWC must, at the conclusion of the hearing arranged under section 53 in relation to the amalgamation, approve the proposal.

(1) If the FWC approves, under section 55 or 57, the submission of a proposed amalgamation to ballot, the AEC must, in relation to each of the existing organisations concerned in the amalgamation, conduct 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 AEC must also conduct, at the same time and in the same way as the ballot under subsection (1), 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 proposed alternative amalgamation. (3) If, under subsection (2), the AEC is required to conduct 2 or more ballots of the members of an organisation at the same time, the same ballot paper is to be used for both or all the ballots. (4) A person conducting a ballot under subsection (2) need not count the votes in the ballot if the person is satisfied that the result of the ballot will not be required to be known for the purposes of this Act. (5) A copy of the outline of the scheme for the amalgamation as lodged under this Part, or, if the scheme has been altered or amended, a copy of the outline of the scheme as altered or amended, is to accompany the ballot paper sent to a person entitled to vote at the ballot. (a) the FWC has granted the organisation an exemption under section 63 from the requirement that a ballot be held in relation to the proposed amalgamation; or (b) the FWC has approved under section 64 a proposal by the organisation for the submission of the amalgamation to a ballot that is not conducted under this section.

Where the question of a proposed amalgamation is submitted to a ballot of the members of an existing organisation concerned in the amalgamation, the members of the organisation approve the amalgamation if, and only if: (a) where a declaration under section 43 is in force in relation to the proposed amalgamation—more than 50% of the formal votes cast in the ballot are in favour of the amalgamation; or

the existing organisations concerned in the amalgamation may jointly lodge with the FWC a further application under section 44 for approval for the submission of the amalgamation to ballot. (3) Subsection (2) does not by implication require a further application under section 44 to be lodged within the 12 month period mentioned in that subsection.

(3) If the AEC is of the opinion that the register of members, or the part of the register, made available to the AEC for the purposes of the ballot contained, at the time of the ballot:

(1) Not later than 30 days after the result of a ballot under this Part is declared, application may be made to the Federal 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: (3) The regulations may make provision with respect to the procedure for inquiries by the Court into alleged irregularities in relation to ballots under this Part, and for matters relating to, or arising out of, inquiries.

(1) If the members of each of the existing organisations concerned in a proposed amalgamation approve the proposed principal amalgamation, the proposed principal amalgamation is approved for the purposes of this Part. (b) the members of one or more of the existing organisations concerned in the amalgamation do not approve the proposed principal amalgamation; and (c) the members of 2 or more of the organisations (in paragraph (d) called the approving organisations) approve a proposed alternative amalgamation; and (d) where one of the existing organisations is the proposed amalgamated organisation—that organisation is one of the approving organisations;

(b) does an act that results in a ballot paper or envelope being destroyed, defaced, altered, taken or otherwise interfered with; or
(d) delivers a ballot paper or other paper to a person other than a person receiving ballot papers for the purposes of the ballot; or
(k) does an act that results in a ballot box or other ballot receptacle being destroyed, taken, opened or otherwise interfered with.

(b) uses any form of intimidation or inducement to prevent from voting, or to influence the vote of, a person entitled to vote at the ballot; or
(c) threatens, offers or suggests, or uses, causes or inflicts, any violence, injury, punishment, damage, loss or disadvantage with the intention of influencing or affecting:
(d) gives, or promises or offers to give, any property or benefit of any kind with the intention of influencing or affecting anything referred to in subparagraph (c)(i), (ii) or (iii); or
(e) asks for or obtains, or offers or agrees to ask for or obtain, any property or benefit of any kind (whether for that person or another person), on the understanding that anything referred to in subparagraph (c)(i), (ii) or (iii) will be influenced or affected in any way; or

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) in the case where the relevant person is a person performing duties for the purposes of the ballot—the relevant person shows another person, or permits another person to have access to, a ballot paper used in the ballot, otherwise than in the performance of the duties.

(1) The scheme of a proposed amalgamation that is approved for the purposes of this Part takes effect in accordance with this section. (a) the period, or the latest of the periods, within which application may be made to the Federal Court under section 69 in relation to the amalgamation has ended; and (b) any application to the Federal Court under section 69 has been disposed of, and the result of any fresh ballot ordered by the Court has been declared; and (c) there are no proceedings (other than civil proceedings) pending against any of the existing organisations concerned in the amalgamation in relation to: (d) any obligation that an existing organisation has under a law of the Commonwealth that is not fulfilled by the time the amalgamation takes effect will be regarded by the proposed amalgamated organisation as an obligation it is bound to fulfil under the law concerned; the FWC must, after consultation with the existing organisations, by notice published as prescribed, fix a day (in this Division called the amalgamation day) as the day on which the amalgamation is to take effect. (a) if the proposed amalgamated organisation is not already registered—the General Manager must enter, in the register kept under subsection 13(1), such particulars in relation to the organisation as are prescribed, and the date of the entry; and (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. (a) the FWC has been given an undertaking, for the purposes of paragraph (2)(d), that an amalgamated organisation will fulfil an obligation; and (b) after giving the amalgamated organisation an opportunity to be heard, the FWC determines that the organisation has not complied with the undertaking;

(1) On the amalgamation day, all assets and liabilities of a de‑registered organisation cease to be assets and liabilities of that organisation and become assets and liabilities of the amalgamated organisation. (2) For all purposes and in all proceedings, an asset or liability of a de‑registered organisation existing immediately before the amalgamation day is taken to have become an asset or liability of the amalgamated organisation on that day.

When the day on which the proposed amalgamation is to take effect is fixed, section 174 has effect in relation to resignation from membership of a proposed de‑registering organisation as if the reference in subsection 174(2) to 2 weeks were a reference to one week or such lesser period as the FWC directs.

(a) a modern award or an enterprise agreement that, immediately before that day, covered a proposed de‑registering organisation and its members covers, by force of this section, the proposed amalgamated organisation and its members; and
(aa) a modern award, an order of the FWC or an enterprise agreement that, immediately before that day, applied to a proposed de‑registering organisation and its members applies to, by force of this section, the proposed amalgamated organisation and its members; and
(b) the award, order or agreement has effect for all purposes (including the obligations of employers and organisations of employers) as if references in the award, order or agreement to a de‑registered organisation included references to the amalgamated organisation.

(1) Unless the scheme of a proposed amalgamation otherwise provides, an agreement in force under section 151 to which a de‑registered organisation was a party continues in force on and from the amalgamation day as if references in the agreement to the de‑registered organisation were references to the amalgamated organisation. (2) The General Manager must enter in the register kept under subsection 13(1) particulars of the effect of the amalgamation on the agreement.

(1) On and after the amalgamation day, an instrument to which this Part applies continues, subject to subsection (2), in full force and effect. (2) The instrument has effect, in relation to acts, omissions, transactions and matters done, entered into or occurring on or after that day as if a reference in the instrument to a de‑registered organisation were a reference to the amalgamated organisation.

Where, immediately before the amalgamation day, a proceeding to which this Part applies was pending in a court or before the FWC: (b) the proceeding is to continue as if the amalgamated organisation were, and had always been, the de‑registered organisation.

(2) Nothing done by this Division, and nothing done by a person because of, or for a purpose connected with or arising out of, this Division: (ii) any contractual provision prohibiting, restricting or regulating the assignment or transfer of any asset or liability or the disclosure of any information; or (3) Without limiting subsection (1), where, but for this section, the consent of a person would be necessary in order to give effect to this Division in a particular respect, the consent is taken to have been given.

(1) The amalgamated organisation must take such steps as are necessary to ensure that the amalgamation, and the operation of this Division in relation to the amalgamation, are fully effective. (2) The Federal Court may, on the application of an interested person, make such orders as it considers appropriate to ensure that subsection (1) is given effect to.

(a) land or an interest in land becomes, under this Division, land or an interest in land of the amalgamated organisation; and
(iii) states that the land or interest has, under this Division, become land or an interest in land of the amalgamated organisation;
is lodged with the Registrar‑General, Registrar of Titles or other proper officer of the State or Territory in which the land is situated;
(c) deal with, and give effect to, the certificate as if it were a grant, conveyance, memorandum or instrument of transfer of the land (including all rights, title and interest in the land) or the interest in the land, as the case may be, to the amalgamated organisation that had been properly executed under the law of the State or Territory; and

(d) deal with, and give effect to, the certificate as if it were a notice of assignment of the charge that had been properly lodged with that Commission.

(a) the amalgamated organisation becomes, under this Division, the holder of a share, debenture or interest in a company; and
(iii) states that the amalgamated organisation has become, under this Division, the holder of the share, debenture or interest;

the company must take all steps necessary to register or record the matter in the same way as transfers of shares, debentures or interests in the company are registered or recorded.

(a) an asset (other than an asset to which section 82, 83 or 84 applies) becomes, under this Division, an asset of the amalgamated organisation; and
is given to the person or authority who has, under Commonwealth, State or Territory law, responsibility for keeping a register in relation to assets of that kind;

(1) Where any difficulty arises in relation to the application of this Division to a particular matter, the Federal Court may, on the application of an interested person, make such order as it considers proper to resolve the difficulty. (2) An order made under subsection (1) has effect despite anything contained in this Act, the Fair Work Act or in any other Commonwealth law or any State or Territory law.

(1) Subject to this section and to section 90, an act done in good faith for the purposes of a proposed or completed amalgamation by: (b) a person who has purported to be a member of the committee of management, or an officer, is to be treated as having done so in good faith until the contrary is proved; and (c) an invalidity in the making or altering of the scheme for the amalgamation is not to 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 members of the committee of management or to a majority of the persons purporting to act as the committee of management; and

(1) Subject to subsection (2) and section 90, after the end of 4 years from the day an act is done for the purposes of a proposed or completed amalgamation by: (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 Federal Court or any other court made before the end of that 4 years.

(1) Where, on an application for an order under this section, the Federal Court is satisfied that the application of section 88 or 89 in relation to an act would do substantial injustice, having regard to the interests of: (2) Where a declaration is made, section 88 or 89, as the case requires, does not apply, and is 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 or association concerned, a member of the organisation or association concerned or any other person having a sufficient interest in relation to the organisation or association concerned.

(1) An organisation or association, a member of an organisation or association or any other person having a sufficient interest in relation to an organisation or association may apply to the Federal Court for a determination of the question whether an invalidity has occurred in a proposed or completed amalgamation concerning the organisation or association. (3) Where, in a proceeding under subsection (1), the Court finds that an invalidity of the kind mentioned in that subsection has occurred, the Court may make such orders as it considers appropriate: (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 must not make an order under subsection (3) without satisfying itself that such an order would not do substantial injustice to:

(a) certain organisations that have taken part in amalgamations under this Act to be reconstituted and re‑registered; and

amalgamated organisation, in relation to an amalgamation, means the organisation of which members of a de‑registered organisation became members under paragraph 73(3)(d), but does not include any such organisation that was subsequently de‑registered under Part 2.

authorised person, in relation to a completed withdrawal from amalgamation, means a person authorised by the rules or the committee of management of the newly registered organisation.

(a) in the case of a separately identifiable constituent part—a member of the amalgamated organisation who is included in that part; or
(b) in any other case—a member of the amalgamated organisation who would be eligible for membership of the constituent part if:
as the case requires, were still registered as an organisation with the same rules as it had when it was de‑registered under Part 2.

instrument to which this Part applies, in relation to a completed withdrawal from amalgamation, means an instrument that immediately before the withdrawal day is an instrument:

(a) to which the amalgamated organisation from which a constituent part has withdrawn to form a newly registered organisation is a party; or
(d) under which any right or liability accrues or may accrue to the amalgamated organisation in relation to the constituent part of the organisation and its members.

irregularity includes a breach of the rules of an organisation, but in Division 4 does not include an irregularity in relation to a ballot.

proceeding to which this Part applies, in relation to a completed withdrawal from amalgamation, means a proceeding to which an amalgamated organisation was a party immediately before the withdrawal day.

proposed withdrawal from amalgamation means the proposed carrying out of arrangements in relation to an amalgamated organisation under which a separately identifiable constituent part of the organisation is to withdraw from the organisation.

(a) if an organisation de‑registered under Part 2 in connection with the formation of the amalgamated organisation remains separately identifiable under the rules of the amalgamated organisation as a branch, division or part of that organisation—that branch, division or part; or
(b) if a State or Territory branch of such a de‑registered organisation under its rules as in force immediately before its de‑registration remains separately identifiable under the rules of the amalgamated organisation as a branch, division or part of that organisation—that branch, division or part.

withdrawal day, in relation to a completed withdrawal from amalgamation, means the day fixed under paragraph 109(1)(a) in relation to the withdrawal from amalgamation.

(2) For the purposes of this Part, an organisation is taken to have been de‑registered under Part 2 in connection with the formation of an amalgamated organisation if the de‑registration occurred in connection with the formation of: (a) the amalgamated organisation (including that organisation as it existed before any subsequent amalgamation under Part 2); or (ii) an organisation that, through one or more previous applications of this subsection, is taken to have been de‑registered under Part 2 in connection with the formation of the amalgamated organisation. (4) For the purposes of this Part, a reference to a constituent part becoming part of an amalgamated organisation includes a reference to a constituent part becoming part of that organisation as it existed before any subsequent amalgamation under Part 2.

(1) An application may be made to the FWC for a secret postal ballot to be held, to decide whether a constituent part of an amalgamated organisation should withdraw from the organisation, if: (a) during the last 12 months, the FWC has rejected an application for a ballot to be held in relation to the constituent part of the organisation; or (b) a committee of management elected entirely or substantially by the constituent members, whether by a direct voting system or a collegiate electoral system; or (c) if the application relates to a separately identifiable constituent part—the committee of management of that part; or (5) A constituent member of an amalgamated organisation who is not a financial member is taken not to be a constituent member for the purposes of subsection (3). (6) The regulations may prescribe the manner in which an authorisation for the purposes of paragraph (3)(aa) and subparagraph (3)(d)(ii) must be made.

(1) The application must be accompanied by a written outline of the proposal for the constituent part to withdraw from the amalgamated organisation. Subject to subsection (2), the outline must: (a) provide, in no more than 3,000 words, sufficient information on the proposal to enable the constituent members to make informed decisions in relation to the proposed withdrawal; and (b) address particulars of any proposal by the applicant for the apportionment of the assets and liabilities of the amalgamated organisation and the constituent part; and (3) The outline must be a fair and accurate representation of the proposed withdrawal and must address any matters prescribed for the purposes of paragraph (1)(b) in a fair and accurate manner. (3A) If the applicant has insufficient information to prepare an outline that complies with subsection (3), the applicant may request the General Manager to: (a) give the applicant all information in the possession of the General Manager that may be relevant in the preparation of the outline; or (b) direct the amalgamated organisation to give the applicant all information in the possession of the organisation that may be relevant in the preparation of the outline. (3B) The General Manager may provide that information, or direct the amalgamated organisation to provide that information.

(4) If the FWC is not satisfied that the outline complies with subsection (3), the FWC must order the making of such amendments to the outline as it considers are needed for the outline to comply with that subsection.

(1) The applicant or applicants may file with the FWC a written statement of no more than 2,000 words in support of the proposal for the constituent part to withdraw from the amalgamated organisation. (3) The FWC may order that the statement be amended, in accordance with the order, to correct factual errors or otherwise to ensure that it complies with this Act.

(1) The amalgamated organisation may file with the FWC a written statement of no more than 2,000 words in opposition to the proposal for the constituent part to withdraw from the organisation. (3) The FWC may order that the statement be amended, in accordance with the order, to correct factual errors or otherwise to ensure that it complies with this Act.

(1) An outline under section 95 or a statement under section 96 or 97 may, if the FWC allows, include matter that is not in the form of words, including, for example, diagrams, drawings, illustrations, photographs and symbols. (2) The FWC may allow an outline under section 95, or a statement under section 96 or 97, to be amended by whoever filed the outline or statement with the FWC.

(2) On being notified of the application, the AEC must immediately take such action as it considers necessary or desirable to enable it to conduct, as quickly as possible, any ballot that may be required as a result of the application.

(1) The FWC must order that a vote of the constituent members be taken by secret postal ballot, to decide whether the constituent part of the amalgamated organisation should withdraw from the organisation, if the FWC is satisfied that: (ii) addresses any matters mentioned in paragraph 95(1)(b) or prescribed for the purposes of paragraph 95(1)(c) in a fair and accurate manner; and (3) If the FWC orders that a ballot be held, it may make such orders as it thinks fit in relation to the conduct of the ballot.

A constituent member of an amalgamated organisation is not eligible to vote in a ballot under this Division unless the person:

(1) All ballots are to be conducted by the AEC in accordance with the regulations. The expenses of conducting such a ballot are to be borne by the Commonwealth. (2) The ballot paper sent to the constituent members of a constituent part of an amalgamated organisation in connection with a proposal for the constituent part to withdraw from the amalgamated organisation must be accompanied by:

require (by written notice) an officer or employee of the amalgamated organisation concerned or of a branch of the organisation: (c) to give to the official, within the period (of not less than 7 days after the notice is given) and in the manner specified in the notice, any information within the knowledge or in the possession of the person; and (d) to produce or make available to the official, at a reasonable time (being a time not less than 7 days after the notice is given) and place specified in the notice, any documents in the custody or under the control of the person, or to which he or she has access. (2) An officer or employee of an organisation or branch of an organisation commits an offence if he or she fails to comply with a requirement made under subsection (1).

Note: A defendant bears an evidential burden in relation to the matter mentioned in subsection (4), see subsection 13.3(3) of the Criminal Code.

(5) A person is not excused from giving information or producing or making available a document under this section on the ground that the information or the production or making available of the document might tend to incriminate the person or expose the person to a penalty. (b) any information, document or thing obtained as a direct or indirect consequence of giving the information or producing or making available the document; is not admissible in evidence against the person in criminal proceedings or proceedings that may expose the person to a penalty, other than proceedings under, or arising out of, subsection 104(3). (7) If any information or document specified in a notice under subsection (1) is kept in electronic form, the electoral official may require it to be made available in that form.

(1) If a requirement is made under subsection 103(1) in relation to the register, or part of the register, kept by an organisation under section 230, the secretary or other prescribed officer of the organisation must make a declaration, in accordance with subsection (2), that the register has been maintained as required by subsection 230(2).

(b) given to the returning officer, and lodged with the FWC, as soon as practicable but no later than the day before the first day of voting in the relevant election.

(3) A person must not, in a declaration for the purposes of subsection (1), make a statement if the person knows, or is reckless as to whether, the statement is false or misleading.

(b) does an act that results in a ballot paper or envelope being destroyed, defaced, altered, taken or otherwise interfered with; or
(d) delivers a ballot paper or other paper to a person other than a person receiving ballot papers for the purposes of the ballot; or
(k) does an act that results in a ballot box or other ballot receptacle being destroyed, taken, opened or otherwise interfered with.

(b) uses any form of intimidation or inducement to prevent from voting, or to influence the vote of, a person entitled to vote at the ballot; or
(c) threatens, offers or suggests, or uses, causes or inflicts any violence, injury, punishment, damage, loss or disadvantage with the intention of influencing or affecting:
(d) gives, or promises or offers to give, any property or benefit of any kind with the intention of influencing or affecting anything referred to in subparagraph (c)(i), (ii) or (iii); or
(e) asks for or obtains, or offers or agrees to ask for or obtain, any property or benefit of any kind (whether for that person or another person), on the understanding that anything referred to in subparagraph (c)(i), (ii) or (iii) will be influenced or affected in any way; or

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) in the case where the relevant person is a person performing duties for the purposes of the ballot—the relevant person shows another person, or permits another person to have access to, a ballot paper used in the ballot, otherwise than in the performance of the duties.

(1) Within 14 days after the closing day of a ballot, the electoral official conducting the ballot must prepare, date and sign a certificate showing, in relation to the ballot: (2) Immediately after signing a certificate referred to in subsection (1), the electoral official must give a copy of the certificate to: (3) Immediately after signing a certificate referred to in subsection (1), the electoral official must make a copy of the certificate available in any way that it considers appropriate to each applicant under paragraph 94(3)(a).

(2) After the completion of the ballot, the AEC must make a report on the conduct of the ballot available in any way that it considers appropriate to each applicant under paragraph 94(3)(a). (4) If the AEC is of the opinion that the register of members, or the part of the register, made available to the AEC for the purposes of the ballot, contained at the time of the ballot:

(1) Not later than 30 days after the result of a ballot under this Part is declared, application may be made to the FWC, as prescribed, for an inquiry by the FWC into alleged irregularities in relation to the ballot. (2) If the FWC finds that there has been an irregularity that may affect, or may have affected, the result of the ballot, the FWC may: (3) The regulations may make provision with respect to the procedure for inquiries by the FWC into alleged irregularities in relation to ballots under this Part, and for matters relating to, or arising out of, inquiries.

(1) If more than 50% of the formal votes cast in a ballot are in favour of a constituent part of an amalgamated organisation withdrawing from the organisation, the Federal Court must, on application: (b) make such orders as are necessary to apportion the assets and liabilities of the amalgamated organisation between the amalgamated organisation and the constituent part; and (a) the assets and liabilities of the constituent part before it, or the organisation of which it was a State or Territory branch, was de‑registered under Part 2 in connection with the formation of the amalgamated organisation; and (c) any proposal for the apportionment of the assets and liabilities of the amalgamated organisation and the constituent part contained in the outline under section 95 relating to the application for the ballot; and (d) if the constituent part is a separately identifiable constituent part—the proportion of the members of the amalgamated organisation that are included in the constituent part; and (c) a committee of management elected entirely or substantially by the constituent members, whether by a direct voting system or a collegiate electoral system; or (d) if the application relates to a separately identifiable constituent part—the committee of management of that part; or (4) A constituent member of an amalgamated organisation who is not a financial member is taken not to be a constituent member for the purposes of subsection (3). (6) The regulations may prescribe the manner in which an authorisation for the purposes of paragraph (3)(b) and subparagraph (e)(ii) must be made.

(1) This section applies in the case of a withdrawal from amalgamation under this Part by a separately identifiable constituent part of an amalgamated organisation. (2) As soon as practicable after the constituent part is registered as an organisation under section 110, the General Manager must send a written statement in accordance with subsection (3) to each person who, immediately before that registration, was a constituent member of the constituent part. (b) invite the person to give written notice, within a period of 28 days after being sent the statement (the notice period), to the amalgamated organisation or to the newly registered organisation that: (4) As soon as practicable after the amalgamated organisation receives a notice under paragraph (3)(b), it must notify the newly registered organisation of the receipt. (5) As soon as practicable after the newly registered organisation receives a notice under paragraph (3)(b), it must notify the amalgamated organisation of the receipt. (6) If a person referred to in subsection (2) gives written notice in accordance with paragraph (3)(b), within the notice period, that the person wants to become a member of the newly registered organisation, the person: (a) ceases, by force of this subsection, to be a member of the amalgamated organisation with effect from the end of the day on which the notice is received by the amalgamated organisation or the newly registered organisation (as the case may be); and (b) becomes, by force of this subsection and without payment of entrance fee, a member of the newly registered organisation with effect from the day after the day referred to in paragraph (a) of this subsection. (7) If a person referred to in subsection (2) gives written notice in accordance with paragraph (3)(b), within the notice period, that the person wants to remain a member of the amalgamated organisation, the person remains a member of the amalgamated organisation. (8) If a person referred to in subsection (2) fails to give written notice in accordance with paragraph (3)(b), the person: (a) ceases, by force of this subsection, to be a member of the amalgamated organisation with effect from the end of the day after the end of the notice period; and (b) becomes, by force of this subsection and without payment of entrance fee, a member of the newly registered organisation with effect from the day after the day referred to in paragraph (a) of this subsection. (a) is not liable to make any payment because the person gave no notice, or insufficient notice, of ceasing to be such a member under the rules of the organisation; and (10) Despite subsection (8), if a person to whom that subsection would apply, at any time before the day upon which the constituent part is registered as an organisation under section 110, gives notice in writing to the amalgamated organisation or to the applicant for a ballot under section 94 that the person wishes to remain a member of the amalgamated organisation after the registration of the constituent part as an organisation under section 110, the person remains a member of the amalgamated organisation. (11) As soon as practicable after the end of the notice period, the amalgamated organisation must notify the newly registered organisation of any notices under subsection (10) it has received. (12) As soon as practicable after the end of the notice period, the newly registered organisation must notify the amalgamated organisation of any notices under subsection (10) the applicant under section 94 has received.

A person who is a member of the amalgamated organisation from which the constituent part withdrew to form a newly registered organisation may become a member of the newly registered organisation without payment of entrance fee if the person is eligible for membership of it.

(1) This section applies to an order of the FWC, a modern award or an enterprise agreement that, immediately before the day the registration takes effect, covered the amalgamated organisation in relation to the constituent part of the organisation and its members. (b) has effect for all purposes (including the obligations of employers and organisations of employers) as if references in the order, award or agreement to the amalgamated organisation included references to the newly registered organisation.

(b) has effect for all purposes (including the obligations of employers and organisations of employers) as if references in the agreement to the amalgamated organisation included references to the newly registered organisation.

(3) Subsection (2) ceases to have effect on the day occurring 5 years after the day on which the registration of the newly registered organisation takes effect.

(a) in force under section 151 immediately before the day on which registration of a newly registered organisation takes effect; and
(b) to which the amalgamated organisation from which a constituent part has withdrawn to form the newly registered organisation is a party;

continues in force on and from that day as if references in the agreement to the amalgamated organisation included a reference to the newly registered organisation. (2) The General Manager must enter in the register kept under subsection 13(1) particulars of the effect of the withdrawal from amalgamation on the agreement.

(1) On and after the withdrawal day, an instrument to which this Part applies continues, subject to subsection (2), in full force and effect. (2) Subject to section 109, the instrument has effect, in relation to acts, omissions, transactions and matters done, entered into or occurring on or after that day as if a reference in the instrument to the amalgamated organisation from which a constituent part has withdrawn to form a newly registered organisation included a reference to the newly registered organisation.

If an amalgamated organisation from which a constituent part has withdrawn to form a newly registered organisation was, immediately before the withdrawal day, a party to a proceeding that: (c) in the case of proceedings that concern wholly the interests of the constituent members—is substituted for the amalgamated organisation in those proceedings and has the same rights and obligations in the proceedings as the amalgamated organisation had; and (d) in the case of proceedings that concern in part the interests of the constituent members—becomes a party to the proceedings and has the same rights and obligations in the proceedings as the amalgamated organisation has.

(2) Nothing done by this Division, and nothing done by a person because of, or for a purpose connected with or arising out of, this Division: (ii) any contractual provision prohibiting, restricting or regulating the assignment or transfer of any asset or liability or the disclosure of any information; or (3) Without limiting subsection (1), if, apart from this section, the consent of a person would be necessary in order to give effect to this Division in a particular respect, the consent is taken to have been given.

(1) The following must take such steps as are necessary to ensure that the withdrawal from amalgamation, and the operation of this Division in relation to the withdrawal from amalgamation, are fully effective: (2) The Federal Court may, on the application of an interested person, make such orders as it considers appropriate to ensure that subsection (1) is given effect to.

(a) land or an interest in land becomes, under this Division, land or an interest in land of a newly registered organisation; and
(iii) states that the land or interest has, under this Division, become land or an interest in land of the newly registered organisation;
is lodged with the Registrar‑General, Registrar of Titles or other proper officer of the State or Territory in which the land is situated;
(d) deal with, and give effect to, the certificate as if it were a grant, conveyance, memorandum or instrument of transfer of the land (including all rights, title and interest in the land) or the interest in the land, as the case may be, to the newly registered organisation that had been properly executed under the law of the State or Territory.

(d) deal with, and give effect to, the certificate as if it were a notice of assignment of the charge that had been properly lodged with that Commission.

(a) a newly registered organisation becomes, under this Division, the holder of a share, debenture or interest in a company; and
(iii) states that the newly registered organisation has become, under this Division, the holder of the share, debenture or interest;

the company must take all steps necessary to register or record the matter in the same way as transfers of shares, debentures or interests in the company are registered or recorded.

(a) an asset (other than an asset to which section 119, 120 or 121 applies) becomes, under this Division, an asset of a newly registered organisation; and
is given to the person or authority who has, under Commonwealth, State or Territory law, responsibility for keeping a register in relation to assets of that kind;
(d) deal with, and give effect to, the certificate as if the certificate were a proper and appropriate instrument for transactions in relation to assets of that kind.

(a) was elected to office (the constituent office) in the constituent part that withdrew from an amalgamated organisation to form the new registered organisation; and

holds the equivalent office in the newly registered organisation as if he or she were elected under the rules of the newly registered organisation. (a) the day that would have been the person’s last day of term in the constituent office if the withdrawal had not occurred; and

The regulations may provide for any other matters relating to giving effect to the withdrawal of constituent parts from amalgamated organisations.

(1) If any difficulty arises in relation to the application of this Part to a particular matter, the Federal Court may, on the application of an interested person, make such order as it thinks proper to resolve the difficulty.

(1) Subject to this section and to section 128, an act done in good faith for the purposes of a proposed or completed withdrawal from amalgamation by: (b) a person who has purported to be a member of the committee of management, or an officer, is to be treated as having done so in good faith until the contrary is proved; and (c) an invalidity in the making or altering of the outline of the proposed withdrawal from amalgamation is not to 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 members of the committee of management or to a majority of the persons purporting to act as the committee of management; and

(1) Subject to subsection (2) and section 128, after the end of 4 years from the day an act is done for the purposes of a proposed or completed withdrawal from amalgamation by: (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 Federal Court or any other court made before the end of that 4 years.

(1) Where, on an application for an order under this section, the Federal Court is satisfied that the application of section 126 or 127 in relation to an act would do substantial injustice, having regard to the interests of: (a) the amalgamated organisation from which a constituent part withdrew to form a newly registered organisation, or the constituent part; or (2) Where a declaration is made, section 126 or 127, as the case requires, does not apply, and is taken never to have applied, in relation to the act specified in the declaration. (d) a member of, or any other person having a sufficient interest in relation to, a body referred to in paragraph (a), (b) or (c).

(1) Any of the following may apply to the Federal Court for a determination of the question whether an invalidity has occurred in a proposed withdrawal from amalgamation or completed withdrawal from amalgamation: (d) a member of, or any other person having a sufficient interest in relation to, a body referred to in paragraph (a), (b) or (c). (3) Where, in a proceeding under subsection (1), the Court finds that an invalidity of the kind mentioned in that subsection has occurred, the Court may make such orders as it considers appropriate: (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 must not make an order under subsection (3) without satisfying itself that such an order would not do substantial injustice to: (g) any other person having dealings with the amalgamated organisation, the constituent part or the newly registered organisation. (6) This section applies to an invalidity whenever occurring (including an invalidity occurring before the commencement of this section).

(a) an act done, or omitted to be done, under or for the purposes of this Part, or regulations made for the purposes of this Part;
(b) an act done, or omitted to be done, in connection with the proposal of, or preparation for, an act or omission of a kind referred to in paragraph (a).
(i) encouraging a person to resign his or her membership of the amalgamated organisation from which the constituent part withdrew to form the newly registered organisation so that the person can become a member of the newly registered organisation.

(1) The amalgamated organisation, or an officer or member of the organisation, must not impose, or threaten to impose, a penalty, forfeiture or disability of any kind on: because the member, officer, branch or part concerned does, or proposes to do, an act or omission referred to in section 130. (2) The Federal Court may, if the Court considers it appropriate in all the circumstances, make one or more of the following orders in respect of conduct that contravenes subsection (1): (c) injunctions (including interim injunctions), and any other orders, that the Court considers necessary to stop the conduct or remedy its effects; (4) For the purposes of this section, action done by one of the following bodies or persons is taken to have been done by an amalgamated organisation: (d) a member of the amalgamated organisation, who performs the function of dealing with an employer on behalf of other members of the organisation, acting in that capacity.

Part 3 provides for the orders to be made in relation to employees who perform work for the same employer and/or at the same premises or workplace.

(1) Subject to this Part, Part 4 and subsection 151(6), the FWC may, on the application of an organisation, an employer or the Minister, make the following orders in relation to a demarcation dispute: (a) an order that an organisation of employees is to have the right, to the exclusion of another organisation or other organisations, to represent under this Act or the Fair Work 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 or the Fair Work Act the industrial interests of a particular class or group of employees is to have that right; (c) an order that an organisation of employees is not to have the right to represent under this Act or the Fair Work Act the industrial interests of a particular class or group of employees who are eligible for membership of the organisation.

(2) The FWC may, on application by an organisation, an employer or the Minister, vary an order made under subsection (1).

(a) the conduct, or threatened conduct, of an organisation to which the order would relate, or of an officer, member or employee of the organisation:

In considering whether to make an order under section 133, the FWC must have regard to the wishes of the employees who are affected by the dispute and, where the FWC considers it appropriate, is also to have regard to: (a) the effect of any order on the operations (including operating costs, work practices, efficiency and productivity) of an employer who is a party to the dispute or who is a member of an organisation that is a party to the dispute; and (b) any agreement or understanding of which the FWC becomes aware that deals with the right of an organisation of employees to represent under this Act or the Fair Work Act the industrial interests of a particular class or group of employees; and (d) any other order made by the FWC, in relation to another demarcation dispute involving the organisation to which the order under this section would relate, that the FWC considers to be relevant.

(2) The Federal Court may, on application by the Minister or a person or organisation affected by an order made under section 133, make such orders as it thinks fit to ensure compliance with that order.

Note: In addition to registered organisations, this Part also applies to transitionally recognised associations (see clause 3 of Schedule 1) and recognised State‑registered associations (see clause 2 of Schedule 2).

(1) Subject to this Part, Part 4 and subsection 151(6), the FWC may, on the application of an organisation, an employer or the Minister, make the following orders in relation to a dispute (including a threatened, impending or probable dispute) about the entitlement of an organisation of employees to represent, under this Act or the Fair Work Act, the industrial interests of employees: (a) an order that an organisation of employees is to have the right, to the exclusion of another organisation or other organisations, to represent under this Act or the Fair Work Act the industrial interests of the employees in a particular workplace group who are eligible for membership of the organisation; (b) an order that an organisation of employees is not to have the right to represent under this Act or the Fair Work Act the industrial interests of the employees in a particular workplace group.

(2) The FWC may make an interim order in relation to an application under subsection (1) on application by a person or organisation who would have been eligible to make the application under subsection (1). (3) The FWC must not make an order under subsection (2) if the FWC considers that the making of the order would be unfair to a person or organisation other than the applicant. (4) An interim order made under subsection (2) ceases to have effect if the application under subsection (1) is determined. (5) The FWC may, on application by an organisation, an employer or the Minister, vary an order made under subsection (1) or (2). (6) The FWC may, on its own initiative, vary an order made under subsection (1) or (2) if the order is inconsistent with an order that is in force under subsection 133(1). (7) The FWC must not make an order under subsection (1) or (2) if the order would be inconsistent with an order that is in force under subsection 133(1).

(1) In considering whether to make an order under subsection 137A(1) in relation to a particular workplace group, the FWC must have regard to: (c) the extent to which particular organisations of employees represent the employees in the workplace group, and the nature of that representation; and (d) any agreement or understanding of which the FWC becomes aware that deals with the right of an organisation of employees to represent under this Act or the Fair Work Act the industrial interests of a particular class or group of employees; and (a) the workplace group relates to a genuine new enterprise (within the meaning of the Fair Work Act) that one or more employers are establishing or propose to establish; and (b) the employer or employees have not employed any of the persons who will be necessary for the normal conduct of that enterprise; the FWC must, as far as practicable, have regard to the matters set out in subsection (1) as they would apply in relation to the persons who would be the employees in the workplace group.

Note: The expression genuine new enterprise includes a genuine new business, activity, project or undertaking (see the definition of enterprise in section 12 of the Fair Work Act).

(a) the eligibility rules of an organisation of employees have been altered with the consent of the General Manager under section 158A; and
(b) because of the alteration, members of an association of employees registered under a State or Territory industrial law have become eligible for membership of the organisation;

a reference in this section to the organisation includes a reference to the association referred to in paragraph (b) of this subsection.

(1) A peak council is entitled to make a submission for consideration in relation to the proposed making of an order under subsection 137A(1).

(2) The Federal Court may, on application by the Minister or a person or organisation affected by an order made under subsection 137A(1) or (2), make such orders as it thinks fit to ensure compliance with that order.

(a) the eligibility rules of an organisation of employees have been altered with the consent of the General Manager under section 158A; and
(b) because of the alteration, members of an association of employees that is registered under a State or Territory industrial law (a State registered association) have become eligible for membership of the organisation; and
(ii) was an order of the same kind as, or of a similar kind to, an order that the FWC could make under this Chapter in relation to an organisation;

the FWC may, on application by the organisation or by a party to the State representation order, make an order in relation to the organisation that is to the same effect, or substantially the same effect, as the State representation order.

(1) Regulations made for the purposes of this subsection may modify the way in which this Chapter applies in relation to an organisation that, before becoming recognised under this Act, was a State‑registered association or a transitionally recognised association. (2) Without limiting subsection (1), the regulations may specify the weight that the FWC is to give, in making an order in relation to the rights of such an organisation to represent the interests under this Act or the Fair Work Act of a particular class or group of employees, to a State demarcation order.

Part 3 sets out processes available to members who think that their organisation’s rules do not comply with this Chapter, or are not being followed.

(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; and
(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; and
(iia) the keeping of minute books in which are recorded proceedings and resolutions of meetings of committees of management of the organisation and its branches; and
(iv) the control of committees of the organisation and its branches respectively by the members of the organisation and branches; and
(xii) the keeping of a register of the members, arranged, where there are branches of the organisation, according to branches; and
(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:
(ca) must require the organisation and each of its branches to develop and implement policies relating to the expenditure of the organisation or the branch (as the case may be); and

(2) The rules of an organisation of employees may include provision for the eligibility for membership of the organisation of independent contractors who, if they were employees performing work of the kind which they usually perform as independent contractors, would be employees eligible for membership of the organisation.

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 (1)(b) of the definition of office in section 9.

(a) must not be contrary to, or fail to make a provision required by this Act, the Fair Work Act, a modern award or an enterprise agreement, or otherwise be contrary to law; and
(c) must not impose on applicants for membership, or members, of the organisation, conditions, obligations or restrictions that, having regard to Parliament’s intention in enacting this Act (see section 5) and the objects of this Act and the Fair Work Act, are oppressive, unreasonable or unjust; and
(d) must not discriminate between applicants for membership, or members, of the organisation on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

(2) For the purposes of paragraph (1)(d), rules of an organisation are taken not to discriminate on the basis of age if the rules do not prevent the organisation setting its membership dues by reference to rates of pay even where those rates are set by reference to a person’s age.

(1) The Minister may, by notice published in the Gazette, issue guidelines containing one or more sets of model rules dealing with the matters referred to in paragraph 141(1)(ca). An organisation or a branch of an organisation may adopt model rules in whole or in part, and with or without modification.

(ii) a collegiate electoral system that, in the case of a full‑time office, is a one‑tier collegiate electoral system; and
(b) must 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; and
(c) must provide that, if the returning officer conducting an election finds a nomination to be defective, the returning officer must, 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 must, where practicable, be not less than 7 days after the person is notified; and
(i) in relation to a direct voting system ballot (including a direct voting system ballot that is a stage of an election under a collegiate electoral system)—the day on which the roll of voters for the ballot is to be closed; and

(3) The day provided for in the rules of an organisation as the day on which the roll of voters is to be closed (see paragraph (1)(e)) must be a day no earlier than 30 days, and no later than 7 days, before the day on which nominations for the election open. (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) 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. (6) The rules providing for the day on which the roll of voters for a ballot is to be closed are not to be taken to prevent the correction of errors in the roll after that day.

(1) Where the rules of an organisation provide for election for an office to be by a direct voting system, the rules must also provide that, where a ballot is required for such an election, it must be a secret postal ballot. (2) An organisation may lodge with the FWC 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. (i) comply with and are not contrary to this Act (other than subsection (1)), the Fair Work Act, modern awards or enterprise agreements; and (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 (4) Proposed alterations of the rules of an organisation referred to in subsection (2) take effect if and when the General Manager grants to the organisation an exemption from subsection (1). (a) on application by the organisation, if the General Manager is satisfied that the rules of the organisation comply with subsection (1); or (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 and the General Manager has given the organisation an opportunity, as prescribed, to show cause why the exemption should not be revoked. (7) Where the General Manager revokes an exemption granted to an organisation on the ground specified in paragraph (6)(b), the General Manager 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 General Manager’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 604(1) of the Fair Work Act does not apply in relation to a decision of the General Manager 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.

(1) The rules of an organisation must, subject to subsection (2), provide terms of office for officers in the organisation of no longer than 4 years without re‑election. (2) 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) A reference in this section (other than subsection (2)) to the rules of an organisation includes a reference to the rules of a branch of the organisation.

(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) must not permit a casual vacancy, or a further casual vacancy, occurring within the term of an office to be filled, otherwise than by an ordinary election, for so much of the unexpired part of the term as exceeds: (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 must 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.

(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 (having regard to any rule made under subsection 145(2)) to hold the office without being re‑elected.

(1) The Minister may, by notice published in the Gazette, issue guidelines containing one or more sets of model rules for the conduct of elections for office. An organisation may adopt model rules in whole or in part, and with or without modification.

The Minister may, by notice published in the Gazette, issue guidelines containing one or more sets of model rules about the conduct of officers and employees. An organisation may adopt the model rules in whole or in part, and with or without modification.

(1) The rules of an organisation must provide that a loan, grant or donation of an amount exceeding $1,000 must not be made by the organisation unless the committee of management: (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 (2) In spite of subsection (1), the rules of an organisation 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 if the loan, grant or donation: (b) is subject to a condition to the effect that, if the committee of management, at the next meeting of the committee, does not approve the loan, grant or donation, it must be repaid as determined by the committee. (3) In considering whether to approve a loan, grant or donation made under subsection (2), the committee of management must have regard to: (4) Nothing in subsection (1) requires the rules of an organisation to make provision of the kind referred to in that subsection in relation to payments made by the organisation by way of provision for, or reimbursement of, out‑of‑pocket expenses incurred by persons for the benefit of the organisation. (6) For the purposes of the application of this Division to a branch of an organisation, the members of the organisation constituting the branch are taken to be members of the branch.

ineligible State members, in relation to an organisation, means the members of a State union who, under the eligibility rules of the organisation, are not eligible to be members of the organisation.

(b) an association of employees in Tasmania which is neither registered under this Act nor part of an organisation registered under this Act;

and which is composed substantially of persons who, under the eligibility rules of the organisation, are eligible to be members of the organisation.

(1) The rules of an organisation of employees may authorise the organisation to enter into agreements in the prescribed form with State unions to the effect that members of the State union concerned who are ineligible State members are eligible to become members of the organisation under the agreement. (2) If, under rules made under subsection (1), an organisation enters into an agreement with a State union, the organisation must lodge a copy of the agreement with the FWC.

(3) The agreement does not come into force unless and until the General Manager enters particulars of the agreement in the register kept under subsection 13(1). (4) The General Manager must not enter particulars of the agreement in that register unless he or she has been directed by the FWC to do so. (iii) any subsisting agreement or understanding of which the FWC is aware that deals with the organisation’s entitlement to represent under this Act, or the Fair Work Act, the industrial interests of a particular class or group of employees; and (i) overcoming any legal or practical difficulty that might arise in connection with the participation, or possible participation, of ineligible State members in the administration of the organisation or in the conduct of its affairs; or (6) An organisation is not entitled to represent under this Act, or the Fair Work Act, the industrial interests of persons who are eligible for membership of the organisation only under an agreement entered into under rules made under subsection (1). (7) If 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 230(1)(a). that an agreement entered into under rules made under subsection (1) may no longer be operating for a purpose mentioned in subparagraph (5)(b)(i) or (ii), the FWC must give to the parties to the agreement an opportunity to make oral or written submissions as to whether the agreement is still operating for such a purpose. (9) If, after considering any such submissions and, in the case of an application under paragraph (8)(b), the matters raised by the applicant, the FWC is satisfied that the agreement is no longer operating for such a purpose, the FWC may, by order, terminate the agreement. (11) If an organisation and a State union agree, in writing, to terminate an agreement entered into under rules made under subsection (1), the organisation must lodge with the FWC a copy of the agreement to terminate.

(11A) If an organisation and a State union agree, in writing, to terminate an agreement entered into under rules made under subsection (1), the General Manager must as soon as practicable enter particulars of the termination in the register kept under subsection 13(1). (12) The termination of an agreement takes effect when particulars of the termination are entered in the register as mentioned in paragraph (10)(b) or (11)(b) and, when the termination 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 (7)) cease to be members of the organisation.

(1) The rules of an organisation of employees may authorise the organisation to enter into agreements with State unions setting out arrangements for the management and control of the assets and liabilities of the organisation and the State union concerned. (3) If, under rules made under subsection (1), an organisation enters into an agreement with a State union, the organisation must lodge a copy of the agreement with the FWC.

(4) The agreement does not come into force unless and until the General Manager enters particulars of the agreement in the register kept under subsection 13(1). (5) The General Manager must not enter particulars of the agreement in that register unless he or she has been directed by the FWC to do so. (a) is not contrary to Parliament’s intention in enacting this Act (see section 5) or any object of this Act or the Fair Work Act; and

(1) An organisation or a State union who is a party to an agreement made under section 152 (a section 152 agreement) may apply to the Federal Court for orders: (2) In making an order under subsection (1), the Court must have regard to the interests of any lessor, lessee or creditor of the organisation or State union. (3) An order made under subsection (1) has effect despite anything in the rules of the organisation or State union who are the parties to the agreement.

(1) If an organisation and a State union agree, in writing, to terminate an agreement made under section 152 (a section 152 agreement), the termination has no effect unless the parties apply to the Federal Court for approval under this section and the Court gives its approval. (a) the parties have made an agreement (a termination agreement) that makes appropriate provision for the management and control of the assets and liabilities of the organisation and State union after termination of the section 152 agreement; or (b) the Court makes orders that will, in the Court’s opinion, make appropriate provision for the management and control of the assets and liabilities of the organisation and State union after termination of the section 152 agreement. (3) In determining whether a termination agreement, or orders, make appropriate provision as required by subsection (2), the Court must have regard to the following factors: (a) the positions of the organisation and State union in relation to their respective assets and liabilities before the section 152 agreement took effect; (b) the fairness, in all the circumstances, of the manner in which relevant assets and liabilities acquired after the section 152 agreement took effect will be dealt with after termination of the agreement; (c) how the interests of lessors, lessees or creditors of the organisation and the State union will be affected by the termination and subsequent arrangements; (4) If the Court approves a termination agreement, the Court must direct the General Manager to enter particulars of the agreement in the register kept under subsection 13(1), and particulars of any orders made by the Court that relate to the agreement. (5) A termination agreement takes effect on the day specified by the Court. The day specified by the Court must not be a day earlier than the day on which the Court approves the agreement.

The rules of an organisation may 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 workplace relations system.

(1) The rules of an organisation may provide for a fund of the branch that is to be managed and controlled under rules of the branch, and may make provision in relation to the fund in accordance with subsection (2). (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; and (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; and (d) a superannuation or long service leave or other fund operated or controlled by the branch for the benefit of its officers or employees; and (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; and (f) property acquired wholly or mainly by expenditure of the money of the fund or derived from other assets of the fund; and

(1) Where the rules of an organisation do not, in the General Manager’s opinion, make provision required by this Act, the General Manager 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 General Manager’s opinion, necessary to bring them into conformity with this Act.

(a) in the course of an organisation being registered under section 19, an undertaking was given under subsection 19(2) to avoid demarcation disputes that might otherwise arise from an overlap between its eligibility rules and the eligibility rules of another organisation; and

the FWC may, by instrument, determine such alterations of the rules of the organisation as are, in the FWC’s opinion, necessary to remove the overlap. (2) The FWC must give the organisation and the other organisation an opportunity, as prescribed, to be heard on the matter.

(1) A change in the name of an organisation, or an alteration of the eligibility rules of an organisation, does not take effect unless: (2) The FWC may consent to a change or alteration in whole or part, but must not consent unless the FWC is satisfied that the change or alteration has been made under the rules of the organisation. (3) The FWC must not consent to a change in the name of an organisation unless the FWC is satisfied that the proposed new name of the organisation: (4) The FWC must 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 FWC, another organisation: (5) However, subsection (4) does not apply if the FWC accepts an undertaking from the organisation seeking the alteration that the FWC considers appropriate to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of that organisation and the eligibility rules of the other organisation. (6) The FWC may refuse to consent to an alteration of the eligibility rules of an organisation if satisfied that the alteration would contravene an agreement or understanding to which the organisation is a party and that deals with the organisation’s right to represent under this Act and the Fair Work Act the industrial interests of a particular class or group of persons. (a) is satisfied that the alteration would change the effect of any order made by the FWC under section 133 about the right of the organisation to represent under this Act and the Fair Work Act the industrial interests of a particular class or group of employees; and (b) considers that such a change would give rise to a serious risk of a demarcation dispute which would prevent, obstruct or restrict the performance of work in an industry, or harm the business of an employer. (8) Subsections (6) and (7) do not limit the grounds on which the FWC may refuse to consent to an alteration of the eligibility rules of an organisation. (10) This section does not apply to a change in the name, or an alteration of the eligibility rules, of an organisation that is: (b) proposed to be made for the purposes of an amalgamation under Part 2 of Chapter 3 or Division 4 of Part 7 of Chapter 11; or

(1) The General Manager must, on application by an organisation in accordance with subsection (2), consent to an alteration of the eligibility rules of the organisation to extend them to apply to persons within the eligibility rules of an association of employers or employees that is registered under a State or Territory industrial law, if the General Manager is satisfied: (d) that the alteration will not apply outside the limits of the State or Territory for which the association is registered; and

Note: If the General Manager consents to the alteration, the FWC may make orders that reflect State representation orders (see section 137F).

(3) A declaration made under subsection (2) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the declaration.

(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 with the FWC and the General Manager has certified that, in his or her opinion, the alteration: (2) Where particulars of an alteration of the rules (other than the eligibility rules) of an organisation have been lodged with the FWC, the General Manager may, with the consent of the organisation, amend the alteration for the purpose of correcting a typographical, clerical or formal error. (c) proposed to be made for the purpose of an amalgamation under Part 2 of Chapter 3 or Division 4 of Part 7 of Chapter 11; or

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 General Manager must: (a) immediately enter, in the register kept under subsection 13(1), 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 General Manager, amend the certificate accordingly and return it to the organisation.

In proceedings under this Act or the Fair Work Act, a copy of the rules of an organisation certified by the General Manager to be a true and correct copy is evidence of the rules of the organisation.

(1) A member, or an applicant for membership, of an organisation may apply to the Federal Court for an order under this section in relation to the organisation. (2) If the application is made by a member, the order under this section may declare that the whole or a part of a rule of an organisation contravenes section 142 or that the rules of an organisation contravene section 142 in a particular respect. (3) If the application is made by an applicant for membership, the order under this section may declare that the whole or a part of a rule of an organisation contravenes paragraph 142(1)(c) or (d) or that the rules of an organisation contravene paragraph 142(1)(c) or (d) in a particular respect. (4) An organisation in relation to which an application is made under this section must be given an opportunity of being heard by the Court. (5) 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. (6) Where an order under this section declares that the whole or a part of a rule contravenes section 142, the rule or that part of the rule, as the case may be, is taken to be void from the date of the order. (a) the Court makes an order declaring as mentioned in subsection (2) or (3) in relation to the rules of an organisation; and (b) at the end 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 142 in relation to the matters that gave rise to the order; the appropriate authority must, 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 the rules into conformity with that section in relation to those matters.

(8) The appropriate authority may, on the application of the organisation made within the period of 3 months referred to in subsection (7) or within any extension of the period, extend, or further extend, the period. (10) At any time after a proceeding under this section has been instituted, the Court may make any interim orders that it considers appropriate in relation to a matter relevant to the proceeding. (11) An order under subsection (10) continues in force, unless expressed to operate for a shorter period or sooner discharged, until the completion of the proceeding concerned.

(13) 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.

(1) A member of an organisation may apply to the Federal Court for an order under this section in relation to the organisation.

(2) Before making an order under this section, the Court must 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 that is 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 any interim orders that it considers appropriate and, in particular, orders intended to further the resolution within the organisation concerned of the matter that is 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.

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.

(1) A member of an organisation may apply to the Federal Court for an order under subsection (4) in relation to the organisation. (2) Before making the order, the Court must give any person against whom the order is sought an opportunity of being heard. (4) Subject to section 164B, the Court may make an order directing one or more persons (who may be, or include, the person who breached the rule or rules) to do specified things that will, in the opinion of the Court, as far as is reasonably practicable, place the organisation in the position in which it would have been if the breach of the rule or rules had not occurred. (5) The Court may make the order whether or not, at the time of making the order, the person is a member or officer of the organisation.

(1) An order must not be made under section 164 or 164A 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. (2) An order under section 164A does not include an order directing one or more persons to compensate an organisation for any loss or damage suffered by the organisation caused by the breach of the rule or rules.

(3) Where the Court, in considering an application under section 164 or 164A, finds that the whole or a part of a rule of the organisation concerned contravenes section 142 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. (4) Section 163 (other than subsections (1) to (5) (inclusive)) applies in relation to an order made under subsection (3) of this section as if the order had been made under section 163.

This Chapter sets out rules about membership of organisations. It covers entitlement to membership, circumstances in which a person may cease to be a member, recovery of money from members by organisations, and conscientious objection to membership.

(1) Subject to any modern award or order of the FWC, a person 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 or enterprise 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:

Note 1: Rules of an organisation must provide for the circumstances in which a person ceases to be a member of an organisation (see subparagraph 141(1)(b)(vii)).

Note 2: If a member fails to pay his or her membership dues for 24 months, this may result in the person ceasing to be a member, regardless of the rules of the organisation (see section 172).

Note 3: See also section 168, which deals with a special case of entitlement to membership (person treated as having been a member).

(2) Subsection (1) does not entitle a person to remain a member of an organisation if the person ceases to be eligible to become a member and the rules of the organisation do not permit the person to remain a member. (b) in spite of anything in the rules of the organisation, is not to be treated as not being eligible for membership of an organisation merely because the person has never been employed in the occupation. (4) Subject to subsection (5) and to any modern award or order of the FWC, 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: (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. (6) Subsections (1) and (4) 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.

(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

application may be made to the Federal Court for a declaration as to the entitlement of the person under this section by either of the following: (2) On the hearing of an application under subsection (1), 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. (a) an order requiring the organisation concerned to treat a person to whom subsection 166(1) or (4) 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 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. (4) On the making of an order as mentioned in paragraph (3)(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. (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; (a) if the application is made by an organisation—the person whose entitlement is in question must be given an opportunity of being heard by the Court; and (b) if the application is made by the person whose entitlement is in question—the organisation concerned must be given an opportunity of being heard by the Court.

(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): (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). (a) if the application is made by an organisation—the person whose entitlement is in question must be given an opportunity to be heard by the Court; and (b) if the application is made by the person whose entitlement is in question—the organisation concerned must be given an opportunity to be heard by the Court.

An organisation must, 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:

The Federal Court may at any time, in a proceeding under this Act or the Fair Work Act, order such rectifications of the register of members of an organisation as it considers necessary.

The Federal Court may, on the application of an organisation, order that a person’s membership of that organisation or another organisation is to cease from a day, and for a period, specified in the order.

(a) if the organisation is an association of employers—a person of a kind mentioned in paragraph 18A(3)(a), (b), (c) or (d); or
(b) if the organisation is an association of employees—a person of a kind mentioned in paragraph 18B(3)(a), (b), (c) or (d); or
(c) if the organisation is an enterprise association—a person of a kind mentioned in paragraph 18C(3)(a), (b), (c) or (d);

(a) the rules of an organisation require a member to pay dues in relation to the person’s membership of the organisation; and

the organisation must remove the name and postal address of the member from the register within 12 months after the end of the 24 month period.

(2) In calculating a period for the purposes of paragraph (1)(c), any period in relation to which the member was not required by the rules of the organisation to pay the dues is to be disregarded. (3) A person whose name is removed from the register under this section ceases to be a member of the organisation on the day his or her name is removed. This subsection has effect in spite of anything in the rules of the organisation.

Note: A non‑financial member’s membership might cease and his or her name be removed from the register earlier than is provided for by this section if the organisation’s own rules provide for this to happen.

(a) a person applies for membership of an organisation within 6 months after the person’s membership has ceased under section 172; and

the organisation must not require the person to pay any fee associated with a new membership (other than membership dues) in relation to the membership for which the person has applied. (2) This section is not to be taken to prevent an organisation requiring (whether by means of its rules or otherwise) payment of outstanding dues in order for a person to maintain continuity of financial membership.

(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.

Note: The notice of resignation can be given electronically if the organisation’s rules allow for this (see section 9 of the Electronic Transactions Act 1999).

(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;
(i) at the end of 2 weeks, or such shorter period as is specified in the rules of the organisation, after the notice is received by the organisation; or

(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) is 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.

Note: Regulations may require employers who offer payroll deduction facilities to inform employees that cessation of payroll deduction by an employee does not constitute resignation (see section 359).

A person must not, in an application made under this Act or the Fair Work Act, make a statement about the person’s membership of an organisation if the person knows, or is reckless as to whether, the statement is false or misleading.

A person (the first person) must not provide information about resignation from an organisation to a member, or a person eligible to become a member, of the organisation if the person knows, or is reckless as to whether, the information is false or misleading.

(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 a modern award, order or enterprise agreement.

(1) In spite of subsection 177(2), legal proceedings for the recovery of an amount payable by a person in relation to the person’s membership of an organisation must not be commenced after the end of the period of 12 months starting on the day on which the amount became payable. (2) The amount ceases to be payable at the end of the period if legal proceedings to recover the amount have not been commenced by then.

(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 are 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 is taken to have ceased to be a member from the time that the person ceased to be so eligible.

(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 18(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 18(b) or (c); and

(2) An appeal does not lie to the FWC under section 604 of the Fair Work Act against a decision of the General Manager 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 the General Manager for such period (not exceeding 12 months) as the General Manager considers appropriate. (a) the General Manager becomes aware of a matter that was not known to the General Manager when a certificate was issued by the General Manager to a person under subsection (1); and (b) if the General Manager had been aware of the matter when the application for the certificate was being considered, the General Manager would not have issued the certificate; the General Manager may, after giving the person an opportunity, as prescribed, to show cause why the certificate should not be revoked, revoke the certificate.

appropriate organisation, in relation to a person who has made an application under subsection (1), means the organisation that, in the opinion of the General Manager dealing with the application, would, but for the person’s conscientious beliefs, be the appropriate organisation for the person to join having regard to:

(b) in the case of a person who is otherwise eligible to join an organisation of employers—the business carried on by the person; or
(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 or the enterprise in which the person works.

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.

This Chapter deals with elections for positions in organisations. It does not deal with other kinds of ballots (for example, amalgamation and disamalgamation ballots, which are dealt with in Chapter 3).

Part 2 sets out the rules for the conduct of elections. Elections for office must generally be conducted by the AEC. This Part also requires the AEC to conduct elections for some positions that are not offices, if the organisation concerned requests the AEC to do so.