Bills Digest No. 171 2001-02
Workplace Relations (Registration and Accountability of Organisations)
Bill 2002
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Workplace
Relations (Registration and Accountability of Organisations) Bill 2002
Date Introduced:
21 March 2002
House:
House of Representatives
Portfolio:
Employment and Workplace Relations
Commencement:
Substantive provisions come into effect on a date to be set by proclamation
but no later than 6 months after Royal Assent.
This Bill and the Workplace Relations
(Registration and Accountability of Organisations) (Consequential Provisions)
Bill 2002 (the Consequential Provisions Bill 2002) provide for:
- the transfer of most of the machinery for regulating registered federal
industrial organisations from Parts IX and X of the Workplace
Relations Act 1996 (WR Act) to a new free-standing Act
- the reform of the current legislative provisions to modernise accounting
and auditing practices applicable to all federally registered organisations
to bring them more closely into line with those applying under the Corporations
Law
- the improvement of the record keeping practices of registered organisations
generally, but with particular emphasis on improving access to and the
quality of membership records, and
- the registration of new enterprise based organisations and the dismantling
or de-registration of existing federally registered bodies.
As noted in the Minister for Employment and Workplace
Relations’ Second Reading Speech, this Bill and the accompanying measure
to a considerable degree replicate the proposed laws considered by the
Parliament in 2001 but which were not enacted into law prior to the last
General Election.(1)
It is also the case, as Minister Abbott suggests, that
the Bills are largely technical in nature.(2)
The changes made are consistent with the policies of
the current government. Similar measures have at times been used at the
State level.
That being the case, the current package might be seen
as more than seven tenths ‘relocation’, about two tenths ‘renovation’
and less than one tenth ‘innovation’.
As substantially similar measures have been recently
before the Parliament, and before that were subject to a public consultation
process, much has already been written on this matter. Material is also
drawn from Bills
Digest 130, 2001–01 which reviewed the Workplace Relations (Registered
Organisations) Bill 2001
The attention of readers is drawn, however, to the following
documents which are readily available on-line to assist with their consideration
of these Bills:
- Joint Standing Committee on Electoral Matters, Report, ‘Inquiry
into the Role of the Australian Electoral Commission in conducting industrial
elections, October 1997.(3)
- Former Minister for Workplace Relations, Hon Peter Reith, Ministerial
Discussion Paper, ‘Accountability and democratic control of registered
industrial organisations’, October 1999, and.(4)
- Senate Employment, Workplace Relations, Small Business and Education
Legislation Committee, Report, Consideration of Provisions, Workplace
Relations (Registered Organisations) Bill 2001, June 2001.(5)
In the 1950s about 60 percent of the Australian workforce
was unionised.(6) In 1992, this figure had fallen to 40 percent
and by August 2001 only 24.5 percent of employees belonged to a union.(7)
Unions themselves have also undergone marked structural
changes in recent years with the number of unions declining from over
300 in the mid 1980s to just on 130 in the late 1990s.(8) Of
the total number of unions, only 44 are federally registered.(9)
These account for in the vicinity of 1.9 million members.
The Australian tradition has been for government to enact
prescriptive rules regulating in considerable detail the internal affairs
of industrial organisations that choose to take advantage of the institutions
established by government for settling industrial disputes and dealing
with broader industrial matters.
Unions have been in the main prepared to tolerate the
controls imposed on them in exchange for these not inconsiderable benefits.
However, other factors such as membership size, the relative attractions
of any competing State industrial system, craft-related sensitivities,
partisan and industrial politics, employer attitudes and geography also
exerted an influence.
From a legislative perspective, and as two leading commentators
have noted, the regulation of internal and inter-union affairs by the
state largely reflects two competing interests:
¼
the public interest in accountability, and the democratic right of
members to decide upon their own form of governance.(10)
In more than a nominal sense, these rules apply both
to representative employer bodies as well as to trade unions.
The Australian approach has been for registered organisations
to be treated as party principals in their own right rather than as mere
agents for their members. Hence an industrial award binds not only the
registered organisation itself but also its present and future members.(11)
Although registration confers certain rights and obligations
on registered bodies, including employer associations, the principal focus
of public attention and that of legislators invariably has been on unions.
The rights and benefits enjoyed by unions that chose
to become registered organisations for the purposes of the Workplace Relations
Act include:
- corporate status including the capacity to sue and hold property in
their own right
- the capacity to become party to federal industrial awards
- unilateral access to industrial tribunals and recognition as a bona
fide bargaining agent
- legally recognised and largely exclusive industrial ‘coverage’ of
those workers who come within the unions eligibility rules and protection
from poaching by other unions
- statutory anti-victimisation safeguards for union officials, members
and those promoting union interests within the law, and
- limited rights of entry onto employer premises for union officials
performing their official duties.
Registered employer associations enjoy a similar status
but not directly analogous benefits.
Historically, those who have argued for more detailed
and direct control of trade union affairs have tended to:
- Argue that unions derive considerable benefits from registration and
the institutional arrangements that go with it
- Stress that such controls enjoy popular support including inside the
labour movement and amongst union members
- Point to similar legislative controls on business, particularly corporations,
and
- Note that unions exercise considerable power within the body politic
and in community life, sometimes arguing that they ought to be subject
to the same controls as various other species of monopoly or economic
actor enjoying monopoly power.
Those taking a contrary position have said that:
- The degree of government regulation of union affairs is out of step
with comparable international practice
- Unions are in essence non profit voluntary associations – the corporations
law analogy ought to be rejected, with a better basis of comparison
being, for instance, other essentially non profit bodies such as political
parties
- Union influence has diminished in recent years and is generally no
greater than that of many other interest groups in society which are
not subject to comparable controls
- Recent changes to industrial relations law and practice have not only
diminished the benefits of registration but also abrogated the quasi
monopoly power formerly enjoyed by many unions. The decline in union
power has been marked by the removal of various union security devices
like ‘union preference’ and ‘the closed shop’ which were either encouraged
or tolerated, and
- The enactment of laws promoting the registration of enterprise associations
and the growth of agreement making and contractual arrangements such
as those embodied in Australian Workplace Agreements (AWAs) it is said
also has shifted the balance between union rights and responsibilities
towards the latter.
Although grouped together under the single banner of
registration and accountability, the matters contemplated by the current
Bill have often been tackled individually rather than as part of some
larger design.
Chapter 8 of the present Bill deals with financial accounts
and records which organisations are required to maintain and the form
that these will take, and introduces new accounting standards. It therefore
helps to recount the steady tightening of the financial responsibilities
of registered organisations that occurred during the 1970s and 1980s.
Additional requirements of financial reporting and other
procedures followed in the wake of inquiries, an important inquiry being
the Royal Commission into Alleged Payments to Maritime Unions.(12)
The Royal Commission’s report had significant consequences, leading
to amendments to the financial reporting provisions of the (then) Conciliation
and Arbitration Act 1904 (Cwth) (C&A Act):
The Royal Commissioner (Sweeney J.)
considered that the provisions of the Conciliation and Arbitration
Act as it then stood failed to achieve this (public accountability)
result. The Act, he said, was deficient in that it did not specify
in sufficient detail the records to be kept and filed by organisations
in order to ensure that financial records present a full and accurate
picture of the financial activities of an organisation. He further
concluded that the Act neither specified the activities of auditors
in any detail nor required the filing of auditors’ reports, nor did
it specifically direct the Industrial Registrar to examine and evaluate
any records filed.(13)
The Royal Commissioner’s concerns and recommendations
were picked up in legislation in 1977 and 1980 forming an expanded Part
VIIIAA of the C&A Act dealing with accounts, audit and reporting,
and the standard of detail to which these accounts needed to be presented.
These accounting standards are currently not the same
as the Australian Accounting Standards applicable to companies but they
are quite detailed. That detail appears not in the body of the Act itself
but is stipulated in regulations to the WR Act.(14) Broadly,
the provisions require that organisations keep proper accounting records;
ensure that these are audited every financial year; that members have
access to certain prescribed information regarding the accounts; that
copies of the auditor’s report and the audited accounts are presented
to the annual general meeting of the organisation or committee of management
or supplied to members or published in the journal and that accounts and
auditor’s reports be filed with the Registrar.
Further amendments concerning donations, including donations
to political parties, were enacted in 1982 arising from the Royal Commission
into the Builders Labourers Federation (the Winneke Royal Commission).(15)
These recommendations proposed that such donations be authorised by the
organisation’s membership. The view of the Winneke Royal Commission that
such donations be authorised from a ballot of the membership was considered
too unwieldy by the (former) Department of Employment and Industrial Relations.
Rather, it considered such expenditures could be authorised by a resolution
of the Committee of Management, which is the current arrangement under
the WR Act.
Organisations at the time considered the combined weight
of this new package of financial obligations onerous (for example committee
approval was required for donations greater than $1000). These sentiments
were reflected subsequently in the section of the report inquiring into
Australia’s industrial relations system (the Hancock Report) (16)which
dealt with registered organisations. The Hancock Report observed:
9.111 The (financial administration)
requirements were criticised in submissions as being too detailed,
unnecessary, complex and intrusive. There was, however, a general
recognition that some form of legislative prescriptions relating
to financial accounting and reporting was justified. The question
is one of degree … It was put to us that we should recommend a review
of the accounting and financial reporting provisions of the legislation.
The ACTU would see any review being made in full consultation with
the union movement.(17)
The Hancock Report identified three areas that needed
to be considered in any review of financial reporting. These were:
- the ‘appropriateness’ of imposing on industrial organisations requirements
that are essentially transposed from corporate law
- the complexity of the reporting procedures and the difficulties met
by organisations complying precisely with the detailed requirements,
and
- the time involved and the expense incurred in organisations properly
meeting the requirements.(18)
In due course, the Hawke Government commissioned the
accounting firm Ernst and Whinney to advise on any legislative responses
to the Hancock Report’s concern about financial administration suitable
for incorporation into the Industrial Relations Act 1988. Ernst
and Whinney agreed with the three principles outlined above to govern
the review but added four of their own relating financial management:
- Let the management manage: In line with current trends it is appropriate
that an organisation should be permitted to manage its own affairs …
The extent of external regulation should only be of a level to ensure
the ability of the organisation to adhere to the principles
- Sufficient and relevant financial information: … members have to
be provided with sufficient and relevant financial data. This should
be provided regularly on an annual basis, direct to each member
- Opportunity to question management: the membership need to be given
an opportunity to question the management on the organisation’s financial
affairs
- Reduction of administrative burden: Most organisations have competing
priorities for their time and funds and it is recognised that such a
provision of membership service should be their primary aim. Regulation
and procedures which impede this objective and do not add to overall
accountability should be reduced.(19)
The Ernst and Whinney report made eleven recommendations
most of which were not directly incorporated in the subsequent legislation.
Thus the level above which donations had to be formally authorised remained
at $1000. It has been fixed at this level now for almost 20 years. Ernst
and Whinney recommended it be raised to $2000(20), but the
recommendation was ignored. A higher cap, say $2500, would restore the
early 1980s relativity while conforming with the Ernst and Whinney principle
of ‘letting the managers manage’. However, it may well be the consensus
of the officials of organisations that the current cap provides a reasonable
authorisation and reporting discipline.
A key finding of the Ernst and Whinney report was that
organisations which had initially found the financial reporting obligations
of 1977-82 onerous had by now (1989) made adjustments. Secondly, there
was no longer the level of antagonism to the more onerous financial administration
procedures highlighted in the Hancock Committee report. As noted in the
Ministerial Discussion Paper(21) the Ernst and Whinney report
was the last legislative review into financial administration of organisations
until the Blake Dawson Waldron report discussed below.
To some degree these earlier reports reflected the structure
of the trade union movement prior to the major changes fashioned by the
ALP Governments and the Australian Council of Trade Unions (ACTU) in the
1980s and early 1990s. Those changes saw many small unions disappear from
the system and a series of union amalgamations that produced a number
of larger bodies. Arguably, these larger and better-resourced unions should
find corporate law style governance requirements less burdensome than
the smaller and less well-resourced organisations that they either replaced
or swallowed. Supporters of the present Bill would also say that large
unions are responsible for significant amounts of money in the form of
members funds, and that that is reason enough for imposing strict accountability
controls on them while they choose to take the benefits available by way
of registration.
The proposals contained in this Bill may in part be traced
to the industrial relations policy Better Pay for Better Work released
for the 1996 Federal Election.(22) Some key policy commitments
and principles included:
- … employees should be free to join a union, so they should be free
not to join a union. Employees should also have the choice of which
union they join (p.3)
The Coalition will:
- encourage the establishment of enterprise unions. The program of union
amalgamation has failed, producing top heavy unresponsive union bureaucracies.(p.4)
- repeal the "conveniently belong" rule and ensure that super
unions may, at the request of their members, provide for autonomous
branches at the enterprise level or be disamalgamated in an equitable
manner for all members.(p.4)
- take steps to prevent monies collected on a tax deductible basis from
being channelled in whole or in part through a union or employer organisation
to a political party (p.13)
- conduct a thorough examination of the operation of those sections
of the Industrial Relations Act which deal with the accounts and auditing
practices of registered organisations and will amend them if necessary
to ensure that organisations keep proper and audited accounts which
are readily available to members (p.13)
- amend the Industrial Relations Act to ensure that the accounting,
auditing and other financial obligations are as nearly as practicable
the same as those of companies (p.13).
While a number of the Better Pay for Better Work
policy commitments were implemented through the Workplace Relations
and Other Legislation Amendment Act 1996 (WROLA), compromise on some
points was needed to gain passage of the Bill through the Senate. For
example, the commitment to require unions to have autonomous enterprise
branches was dropped in the agreement with the Australian Democrats.(23)
Other commitments were not followed up in the first piece of legislation,
such as the commitment to a thorough review of auditing and accounting
practices. (This issue is now picked up in Chapter 8 of this Bill).
Important amendments which were agreed to in the WROLA
included new provisions (Division 7A of Part 1X) to disamalgamate organisations
which had been formed through amalgamation since 1991, but disamalgamations
were subject to a sunset clause (initially 31 December 1999: WR Act s.253ZJ).
The Explanatory Memorandum to the Workplace Relations
(Registered Organisations) Bill 2001 (RO Bill) reported on two (only)
successful disamalgamations involving employee organisations. On 31 May
2001, the Federal Court held that a ballot for disamalgamation of a part
of the Western Australian branch of the Australian Services Union could
proceed. This is only the second successful application for a disamalgamation
ballot (the first was made by the Professional Officers’ Association (Victoria),
which later disamalgamated from the CPSU).(24) The disamalgamation
provisions were amended in 1997 to 'correct an unintended limitation on
the circumstances in which a constituent unit of a registered organisation
can apply to withdraw from an amalgamation’ and clarify how such applications
can be made. (25)The disamalgamation proposals in the present
Bill therefore make up the Government’s third attempt to facilitate the
disamalgamation of so-called ‘super unions’. While these unions have been
subject to criticism for the alleged size of their bureaucracies(26)
one study of the unions and their respective official structures has suggested
no lessening of internal democratic procedures as a result of amalgamation.(27)
Enterprise unions could be formed and registered as a
result of the WROLA. However, there have been a few applications lodged
to register such bodies, with the only successful application coming from
the Ansett Pilots Association (APA). As one early critic, Anthony Forsyth,
has said of the registration of enterprise unions: the results had been
‘hardly overwhelming’.(28) Presumably following the Ansett
Airlines demise there will be grounds for reviewing the ongoing registration
of the APA. On the other hand a new registered (industry) organisation
of employees has appeared, this being the Striptease Artists Australia
Incorporated Association. It applied to the Commission on 14 March 2001
to register as a union to cover striptease artists and nude/semi-nude
waiting and bar staff.
WROLA did not extensively restructure the existing administrative
and reporting requirements. However, it did amend certain key provisions,
most notably those dealing with increased powers for the Australian Industrial
Registrar to conduct investigations into alleged financial maladministration
of organisations (section 280 of the WR Act). The CCH Australian Labour
Law Reporter refers to these current powers in the following account:
The powers of the Registrar when conducting
an investigation under sec. 280, 280A or 280B(1) are quite extensive.
These powers certainly reflect a policy which perceives organisations’
financial administration as of public, as well as private, concern.
The powers of the Registrar include the following:
· the Registrar may, by notice
in writing, require an officer or employee of an organisation to supply
him with such information relevant to his investigation as the Registrar
may require; and
· the Registrar may, by notice
in writing, require an officer or employee of an organisation to attend
before him so that (i) questions (relevant to the Registrar’s investigation)
may be put to that employee or officer, and (ii) books, documents
and papers in the custody of that officer or employee (being relevant
to the Registrar’s investigation) may be produced.
Section 329 provides that a failure
to attend or produce documents carries a penalty of $500. The making
of a statement or the provision of information to the Registrar that
is false or misleading in a material particular also carries a penalty
of $500, if the false or misleading statement or information was knowingly
made or provided. (Note: Refusal or failure to answer a question does
not, of itself, constitute an offence under the section.) (29)
Financial reporting provisions under the WR Act now impose
certain obligations on registered organisations in respect of their financial
administration, which are not imposed on corporations under the Corporations
Law. For example, the duty to disclose donations or gifts including donations
to political parties in financial returns, where the donation is more
than $1000 (WR Act s.269) has no comparable provision in the corporations
legislation. There is also a requirement that rules of an organisation
specify a procedure and authorisation for the making of gifts, donations
and loans (WR Act s.201), again without parallel for companies.
Other key provisions of the WR Act covering registered
organisations include:
- Rules must conform to the requirements of the WR Act for an organisation
to be registered (s.189).
- An organisation must have rules (s.194).
- Rules cannot be contrary to law, nor oppressive or unjust (s.196).
- A registered organisation must have an eligibility rule under s.195
(ie specifying who can become a member). This provision also specifies
a number of rule requirements including (but not limited to):
- the conditions for spending funds,
- the audit of those accounts
- the maintenance of the membership list, and
- the organisation of branches and other matters.
- Elections for office are specified (s.197).
- Where rules provide for direct elections, they must be conducted by
secret ballot (s.198).
- Terms of office must be specified (s.199).
- The rules must authorise the making of grants, donations and loans
(s.201).
- The Industrial Registrar may alter rules of organisations to bring
them into conformity with the requirements of the WR Act. (s.203).
- A member of an organisation may make an application to the Federal
Court for the performance of the rules (s.209).
- Elections must be conducted by the Australian Electoral Commission
unless an exemption has been granted (s.210).
- An allegation of an election irregularity may be pursued by a member
(s.218).
- The Federal Court may declare a finding of an irregularity in the
conduct of an election after conducting a hearing (s.222).
- The membership register can be inspected by a person authorised by
the Industrial Registrar and details of the membership must be forwarded
in an annual return to the Registrar (s.268).
- Details of any loans (including the beneficiary), grants or donations
must be recorded annually with the Industrial Registrar (s.269).
- Entitlement to membership of an organisation is provided for under
s.261 subject to the person paying membership fees and that the person
is eligible to become a member under the organisation’s eligibility
rules.
- Rules addressing an organisation’s accounts and related requirements
are found in s.272 (note Regulations 107 and 108 re presentation of
accounts).
- The role of the auditor is outlined in ss.282–284, and
- Disputes within organisations must be resolved through the organisation’s
rules (s.290).
The Coalition’s 1998 workplace relations policy More
Jobs Better Pay made further commitments on reforms to the legislation
governing registered organisations.
A Coalition Government will:
Maintain the principles of freedom
of association (voluntary unionism) and strengthen their operation
in the Workplace Relations Act 1996, particularly to avoid
loopholes where the laws may not fully protect independent contractors
or their employees from coercion;
Legislate to make it unlawful for
any person or group of persons (whether employers, union bosses or
workers) to plan to establish or maintain, directly or indirectly,
a closed union shop;
Legislate to remove all forms of preference
to unionists against non-unionists, whether by employees, employers
or contractors, including the removal of provisions granting indirect
preference in awards or agreements (such as existing requirements
that employers actively encourage unionisation of their workforce);
Amend the Workplace Relations Act
1996 to increase the accountability of unions to their members
in financial and other matters, and foster the creation of greater
democratic control of union decision making;
Support (by further legislation, if
necessary) the formation of enterprise unions, the disamalgamation
of super unions and the creation of formal or informal workplace consultation
structures;
Amend the right of entry provisions
of the Workplace Relations Act 1996 to ensure that the proper
role of unions is as a service provider to its members, not as an
uninvited quasi-inspector at the workplace;
Amend the existing registration provisions
of the Workplace Relations Act 1996 to make them more workable
and overcome technical and procedural impediments never rectified
by Labor governments.(30)
The More Jobs Better Pay policy on registered
organisations was given impetus by a report on the financial administration
of the Australian Workers Union (AWU) by the (then) Australian Industrial
Registrar, Mr Michael Kelly. The report was delivered to the Minister,
the AWU and the Director of Public Prosecutions (DPP) during Christmas
1998. The Hon. Peter Reith MP made reference to the Registrar’s report
and signalled reforms to provisions governing internal administration
of registered organisations.(31) The report highlighted an
alleged shortfall of operational finances for the AWU’s Head Office of
$11 million from 1995-1997. Mr Kelly found that the union failed to keep
proper accounting records during 1995-96 and failed to retain records
for a number of its branches. Auditors (Coopers and Lybrand) raised concerns
over:
- writs for $70 million for industrial action in 1993
- disputes over ownership of property
- double counting of union assets between the branches, and
- back taxes owed by the NSW Branch.
In its defence, the former National Secretary of the
AWU, Mr Terry Muscat, said that the Registrar’s report had only found
a failure to report on time and ‘had praised the union for taking the
advice of the auditors’.(32) The DPP has not prosecuted this
matter but has advised the AWU of his concerns.(33) The financial
difficulties of the AWU have been well reported since the AWU’s amalgamation
with the Federation of Industrial, Manufacturing and Engineering Employees
in 1994 and have been the source of questions about its ongoing viability.
However the former Secretary of the ACTU, Mr Kelty, gave strong support
for an ongoing role of the AWU in the labour movement in 1998.(34)
This support seems to have been borne out as has been recently noted:
'Now the AWU is again a force, industrially and politically'.
An article recently appearing in the Australian Financial Review
attributes the AWU's rebirth in part to the business acumen of the current
AWU National Secretary, Bill Shorten.(35)
The Government commissioned the legal firm, Blake Dawson
and Waldron (BDW), to review the financial and administrative requirements
of registered organisations in 1997-98. Submissions were invited from
interested parties. The report was published in August 1998.(36)
This report is important because the Government subsequently announced
that it would introduce separate legislation to implement the BDW
recommendations, based in part on the notion that provisions dealing with
registration, industrial elections and financial reporting had no relevance
to many users of the workplace relations system.(37)
Few if any of the registered organisations which made
submissions to the BDW review agreed with the suggestion, couched in the
review’s terms of reference, that there was a need to align accounting
and reporting standards to those of companies.(38) In his critique
of the BDW report, one academic, Mark Mourell(39) commented:
It appears that none of the organisations
which made submissions to the review (including the Metal Trades Industry
Association, the Australian Council of Trade Unions and the Finance
Sector Union) considered it appropriate to adopt business standards
in accounting, auditing and reporting to members of their organisations.
They also submitted that for the purposes of the WR Act they should
not have to rely on external professional accounting advice to make
judgments about administration or their own financial stability. Despite
these submissions the authors of the report fundamentally followed
Australian Society of Certified Practicing Accountants and the Institute
of Chartered Accountants and urged that financial and auditing provisions
be tightened but modelled on those of non-profit organisations.(40)
Also according to Mourell, the key question not answered
in the BDW report was: what is the appropriate level of accountability
for industrial organisations? As he put it:
… the fact remains that unions do
not raise money from the public in order to make a profit; do not
enjoy the benefits of limited liability and ‘it may be argued’ are
not in contractual relationship with their members. Consequently,
they ought to be spared the detailed accounting requirements of businesses
particularly as their officers are accountable to their members through
periodic elections.(41)
The over-riding reason for organisations supporting the
current regulatory regime was that they viewed the current provisions
as already adequate, if not onerous. The former Workplace Relations Minister,
the Hon. Peter Reith MP released an Implementation Discussion Paper for
the More Jobs Better Pay policy in May 1999.(42) This
was followed by a Ministerial Discussion Paper released in October 1999(43),
which in addition to addressing financial practices and accountability
issues included the Government’s response to a report of the Joint Standing
Committee on Electoral Matters (JSCEM) concerning industrial elections.(44)
The JSCEM report was generally satisfied with the current
arrangements for industrial elections including the current public funding
arrangements of industrial elections at about $3.6 million or $6000 per
election ($1997). It nevertheless made a number of recommendations for
amendment to the provisions governing elections for example in respect
of: ballot returns, cut-off rolls, applications for inquiries into election
outcomes by the Electoral Commissioner and model rules. The JSCEM report
also provides a concise history of industrial election provisions from
the C&A Act onwards. The Ministerial Discussion Paper picked up most
of the election issues proposed for reform and some others.
Another important proposal of the Ministerial Discussion
Paper was the proposition to impose fiduciary standards of conduct (‘directors’
duties’) on officials of registered organisations (borrowed from company
law).
In his review of trade union regulation, Anthony Forsyth
has observed that the federal proposal concerning fiduciary duties on
union officials has followed similar legislation regulating trade unions
introduced by conservative State governments. In certain cases, following
a change of government, ALP administrations have been reluctant to reverse
these (higher) standards.(45) There thus arises the assumption
according to Forsyth that the community may regard such standards as a
reasonable imposition on union office holders.
A draft Registered Organisations Bill incorporating these
and other principles was released for discussion and comment in December
1999. However the RO Bill tabled on 4 April 2001 differed from the exposure
draft in a number of areas. Gone was the proposal in the earlier Bill
for registered organisations to seek approval from the membership for
setting up ‘political funds’, from which donations to political parties
would (only) be made. The proposal to reduce the minimum membership number
to 20 was also abandoned. On the other hand, the proposal placing fiduciary
duties on office holders was retained.
Forsyth concluded that the combined weight of the administrative
burdens proposed in the Ministerial Discussion Paper and incorporated
in the RO Bill seem designed to keep unions in ‘ever increasing layers
of bureaucratic red tape’.(46) A contrary view, that the proposed
reforms meet the higher educational standards of the modern workforce,
was reported in Industrial Relations and Management Newsletter:
With employees becoming more independent,
better educated and more individual in their approach, both unions
and employer associations are discovering that they need to find new
ways to maintain their relevance with their membership.
The government says that the proposed
legislation will assist organisations in this, because the new Bill
is all about ensuring that members will have an enhanced scope to
know how the organisation works, where its money goes, how they can
get involved in its policy decisions and what value they get for their
subscription.
… The policy changes will primarily
be aimed at modernising financial accounting and reporting requirements.
It will also establish new statutory duties for officers and employees
of organisations – modelled in part on those in the Corporations Law.
Improved disclosure to members regarding
expenditure of fundings (sic), including political donations and professional
(legal) fees will be required. The government is concerned that some
organisations are spending huge amounts of members money in internal
disputes between officials, potential officials and in feuds between
branches.(47)
On 5 April 2001 the Senate referred to its Employment,
Workplace Relations, Small Business and Education Legislation Committee
the substance of the Workplace Relations (Registered Organisations) Bill
2001. The ensuing report was tabled on 18 June 2001. The Committee was
split on party lines with ALP Senators indicating that they thought the
Bill went beyond the making of purely mechanical or technical changes
to the law. Australian Democrat, Senator Andrew Murray (WA) commented
that although he did not oppose the Bill, it was something of a pity that
the Committee had not been able to look at the rationale for such heavy
levels of government regulation in this area.(48)
The RO Bill was passed by the House of Representatives
on 27 August 2001 after incorporating 13 Government and 14 Opposition
amendments.(49) It was introduced into the Senate on 30 August
2001 but was not considered beyond the Second Reading prior to the Parliament
being prorogued for the November 2001 General Election.
The Coalition’s 2001 workplace relations policy, Choice
and Reward in A Changing Workplace, indicated its intention to persist
with the measures presented in the 2001 package, committing a re-elected
Howard Government to:
- restrict trade union right of entry, especially into small business
- expand the period of notice trade union officials have to give before
demanding entry onto premises, and limit legal entry rights if the purpose
is purely membership recruitment
- tackle corruption in the commercial construction industry by supporting
and resourcing the Building and Construction Industry Royal Commission
industry (sic), and give immediate consideration to any recommendations
it makes for reform consideration to any recommendations it makes for
workplace reform
- provide mechanisms (which currently do not exist) for workers to democratically
vote to disamalgamate from super unions, and for the simpler registration
of bona fides of enterprise unions’ and
- legislate to increase disclosure, accountability and democratic control
by trade unions and employer associations in the expenditure of member
funds for political purposes.(50)
On 29 May 2002, the Australian Financial Review
reported that the Australian Labor Party would support the present Bill
‘following an agreement by the Government to remove two controversial
elements’ in the package.
The Government appears to have dropped its plan to establish
a separate Act and will instead re-incorporate the provisions of the present
Bill as a schedule or schedules to the WR Act.
The Financial Review further reports that a proposal
that would have allowed the Minister to pursue civil penalties against
trade union officials found to have defied orders of the Australian Industrial
Relations Commission has also been agreed to be dropped.(51)
This very large and quite technical Bill cannot be dealt
with here comprehensively.
As already noted, a further complication is that the
Bill as introduced will be subject to a number of Government amendments.
Accordingly, the following analysis therefore attempts
by reference to the RO Bill to highlight some of the matters that were
regarded as potentially contentious when the substance of what the Government
is (again) proposing was last before the Parliament less than 12 months
ago.
The Bill is presently divided into 11 Chapters – the
RO Bill contained 10. The difference arises on account of the decision
to divide what was Chapter 8 in the RO Bill on ‘Records, accounts and
conduct of officers’ into two Chapters. These are Chapters 8 and 9 of
the present Bill, which deal respectively with ‘Records and accounts’
and ‘Conduct of officers and employees’.
Chapter 1 contains the principal objects and definitions
and is very similar to the comparable Chapter in the RO Bill.
Clause 5 dealing with the objects of the proposed
Act reflects amendments moved by the ALP during the debate on the RO bill
to delete reference to the Act promoting a diversity of employer and employee
organisations registered under the Act. The clause also incorporates another
ALP amendment that makes it an object of the Act to encourage members
to participate in the affairs of their respective organisations.
Clause 6 also reflects an ALP sponsored amendment
to the RO Bill as introduced, by providing that the form of ‘declaration
envelope’ shall be prescribed by way of regulation.
Clause 12 relating to the membership of organisations
is intended to reflect the operation of section 4(5) of the WR Act.
Clause 15 is new and is designed to exclude the
operation of Part 2.5 of the Criminal Code. Part 2.5 sets out principles
of corporate criminal responsibility. The exclusion of Part 2.5 means
that the Bill’s own corporate criminal responsibility regime (clause
344) will apply instead.
Clause 18 identifies the types of organisations
that may apply for registration and includes the three current categories:
employer associations, industrial unions that are capable of engaging
in an interstate industrial dispute and enterprise unions. Clauses
19 and 20 set out the criteria for registration and replicate the
current s.189 of the WR Act. The minimum membership number for a union
is retained at 50.
Clauses 21 and 22 prohibit discriminatory conduct
by either employers, e.g. through dismissal of an employee or the termination
of a contractor's services, or unions through industrial action against
an individual where the individual's action (or omission) is in relation
to forming an association seeking registration under the Bill. Clause
23 details the power of the Federal Court to make orders in relation
to conduct that contravenes clauses 21 and 22.
Clauses 26 and 27 respectively provide for the
registration of organisations and confer corporate status on registered
bodies.
Part 3 of Chapter 2 deals with the cancellation of registration
of an organisation. Cancellation of registration is currently dealt with
under Part X of the WR Act. Grounds for deregistration include a continued
breach of an award or certified agreement; interference with interstate
trade or international trade; endangering the safety, health or welfare
of the Australian community (WR Act, s.294).
Part 3 of Chapter 2 of the present Bill incorporates
an ALP amendment to the RO Bill as first introduced. That amendment provided
for the retention of the current cancellation of registration provisions
under the WR Act. The intended effect of retaining the current provisions
is to prevent the grounds for cancellation of registration being extended
to include non-compliance with any court order.(52)
Until 1972, the rules governing the merger of registered
organisations were relatively simple. One body would voluntarily deregister
and the other would expand its eligibility rule to allow it to represent
the interests of the former organisation’s membership. From then on, a
minimum turnout of members was required as well as a majority support
being required in each of the amalgamating bodies.
Under the present law – largely as a result of amendments
made in 1983 and 1991 – for an amalgamation to take effect, 25 percent
of the membership of each of the balloting bodies must vote unless there
is a ‘community of interest’ between the merging parties. An exemption
may also be granted from the balloting requirement where a small organisation
is being taken over by a much larger body.
After the significant upheavals in the union movement
in the 1980s and early to mid 1990s, there has for some years been comparatively
little change in the pattern of union representation in the federal system.
As noted in Clause 34, Part 2 of Chapter 3 deals
with the main elements of the amalgamation procedure and with the consequences
of an amalgamation.
Part 2 encompassing clauses 35 to 91 of the present
Bill, largely reflects the existing position under Division 7 of Part
IX of the WR Act.
Changes to the RO Bill are also minor or technical. Clause
72 of the present Bill dealing with offences in relation to a ballot
includes two new paragraphs (‘j’ and ‘k’) that create separate offences
for being unlawfully in possession of a ballot paper and destroying ballot
boxes. Clause 86 is a new provision and creates a specific regulation
making power in respect of amalgamations.
These provisions in many respects reflect the ongoing
commitment of the present Government to facilitate the break up of the
super unions created in the late 1980s and 1990s at the behest of the
ACTU and underpinned by legislation enacted by the previous Labor Government.
The Howard Government’s position has been that as many unions and their
members were forced into mergers, they should have a fast-track method
of dissolving such marriages of convenience.
As noted in the Explanatory Memorandum(53),
Part 3 provides largely for the consolidation of Division 7A of Part IX
of the WR Act and matters currently dealt with under the Workplace
Regulations 1996.
Clause 93 contains a list of definitions, substantially
expanded from the equivalent list in the RO Bill.
Clause 94 deals with the requirements for obtaining
a Federal Court ordered ‘disamalgamation’ ballot in the case of former
organisations that now form part of another registered body. These provisions
relate to amalgamations that occurred after 1 February 1991 when the Principal
Act was amended to encourage amalgamations. The application of the proposed
provisions varies in accordance with how long the amalgamation has been
operative and whether the amalgamation in question occurred before or
after 31 December 1996. The constituent parts of existing registered bodies
that will be able to take advantage of these disamalgamation provisions
are those that:
- amalgamated between 1 February 1991 and 31 December 1996 and subsequently
apply to disamalgamate within three years of the commencement of this
Act, and
- amalgamated after 31 December 1996 but have been amalgamated for less
than 5 years.
Clause 105 of the RO Bill as introduced provided for
the amendment of applications in certain circumstances does not reappear
in the present Bill. This reflects the Government’s agreement to an ALP
amendment to the earlier Bill.
Clause 103 dealing with the provision of information
to electoral officials has been expanded from the equivalent in the RO
Bill, largely to bring it into line with current Commonwealth policy dealing
with the admissibility of evidence and self-incrimination in criminal
proceedings.
Clause 105 differs from the equivalent in the
RO Bill (clause 115) in form but not significantly in intention.
Clause 106 sets out the means for reporting the
outcome of a ballot – previously this was to be dealt with by way of regulation.
Clause 107 reflects similar considerations but also details matters
that must be included in the Australian Electoral Commission’s ballot
report. Clause 108 deals with Federal Court inquiries into alleged
ballot irregularities.
Clause 111 deals with the means by which after
a disamalgamation, members of the new bodies individually decide which
organisation to join. This clause is a recast version of clause 120 of
the RO Bill.
Clauses 113 and 114 vary from the equivalent provisions
in the RO Bill (clauses 122 and 123) to reflect the Government’s acceptance
of ALP amendments to the 2001 Bill. Clause 113 also provides for
the continuity of all existing awards, agreements etc in respect of the
newly registered organisation and its members. Clause 114 provides
that a newly registered body that was once part of a registered organisation
is bound by any agreement with a State union that would have applied to
it if it had remained part of the organisation from which it has disamalgamated.
Clause 115 seeks to provide for the continued operation of various
instruments (as defined in clauses 35 and 93) with respect to the
newly created organisation and to the ongoing body and its members. New
clause 116 similarly seeks to ensure the continuity of legal and
tribunal proceedings.
Clauses 117 to 122 deal with the mechanics of
transferring and dealing with the assets of the new organisation. Clause
123 is another transitional provision, and provides that constituent
office-holders in the former amalgamated body may serve out their current
term in the newly formed organisation.
Clause 125 outlining the powers of the Federal
Court to resolve problems arising out of the disamalgamation is broader
than the equivalent clause in the RO Bill and is not specifically limited
by the rules of any other organisation or association seeking registration.
Validation provisions in the present Bill are more explicit and detailed
than those of the RO Bill.
Like section 118A of the WR Act, this Chapter will allow
the AIRC to issue orders, in the context of demarcation disputes, about
the representation rights of unions.
Clause 133 replicates the current subsection 118A(1)
(WR Act) allowing the AIRC to: (a) grant exclusive coverage to a union
which has constitutional coverage of the relevant employees; (b) give
rights of coverage to a union which has no present constitutional coverage
of the relevant employees; and/or (c) exclude a union from representing
employees over whom it has constitutional coverage.
Sub-clause 133(2) is a new provision allowing
the Minister, an organisation or an employer to apply for a variation
of a demarcation order. Under clause 135, an order made under clause
133 does not prevent a newly registered organisation that covers 'relevant'
employees from representing their industrial interests.
Clauses 133 to 137 are in substance the same as
the equivalents in the RO Bill. Clause 135 of the RO Bill allowing newly
registered organisations to represent workers, notwithstanding existing
AIRC exclusive representation orders, is not replicated. This reflects
the Government’s agreement to an ALP amendment to the earlier Bill.
The WR Act is part of a long tradition of state regulation
of the internal affairs of registered organisations.
Regulation takes three forms, the:
- principal statute prescribes an extensive list of matters that registered
organisations must include in their rules (see sections 195 to 200 of
the WR Act and clauses 141 to 146 of the present Bill)
- principal statute also requires all registered organisations to adopt
certain specific rules – ie it not only makes it a requirement that
certain matters be covered by the rules but the Act also fixes the content
of the rules or limits the scope for rule-making on particular matters,
and
- courts have also added certain common and administrative law requirements
to those imposed by statute – for example, the insistence that the principles
of due process/natural justice be applied and that officials exercise
their powers under the rules in ‘good faith’.
Clause 141 of the present Bill largely replicates
the provision of the WR Act and the RO Bill. As with other parts of the
proposed legislation, ALP amendments to the RO Bill are reflected in this
clause. The requirement in the RO Bill that membership rules must provide
that no membership dues are payable by a person where they are not eligible
to be a member or are an inactive member has been dropped from the current
Bill.
Clause 142 also reflects an ALP amendment to the
RO Bill (clause 140). New sub-clause 142(2) allows organisations
to continue to charge differential membership fees according to the rates
of pay of members (even where those rates of pay are based on a person’s
age).
Clause 147 provides for the Minister to publish
guidelines containing sets of ‘model rules’ for organisations. This is
an interesting and potentially worthwhile innovation that could form the
basis for the winding back or possible simplification of regulatory requirements
in the future.
Chapter 6 –
Membership of organisations
This Chapter, which largely replicates Division 9 of
Part IX of the WR Act, covers such matters as: entitlement to membership,
resignation from membership, recovery of money from members of organisations
(dues owing), and legal objections to membership.
The provisions in this Chapter are substantially the
same as the equivalents in the RO Bill. (A small explanatory note has
been omitted at the end of sub-clause 166(2)).
Clause 166 details the right of a person to become
a member of an organisation providing he or she meets the criteria listed
in the organisation’s relevant eligibility rules. Clause 172 provides
that members who have been non financial for a period of 2 years must
have their name removed from the membership register before a further
12 months has elapsed. Clause 174 provides for resignation from
membership where the member ceases to be eligible or after two weeks from
notice of resignation.
Clause 180 provides for conscientious objection
to membership of an organisation (currently section 267 of the WR Act).
The clause applies to both registered employer associations and registered
unions. However, with the outlawing of compulsory unionism and the removal
of union preference from the legislation, it is not entirely clear why
it is necessary for the position of conscientious objectors to be regulated
by law.
This Chapter sets the rules for the conduct of elections
for offices in registered organisations. These elections must generally
be conducted by the Australian Electoral Commission (section 210 of the
WR Act and clause 182) and are publicly funded. Part 3 deals with
Federal Court inquiries into elections and Part 4 with the circumstances
in which persons may be barred from election to office in a registered
organisation.
The equivalent provisions may be found in Divisions 4,
5 and 6 of Part IX of the WR Act.
Only minor technical changes have been made to the equivalent
provisions in the RO Bill.
As noted in the Bills Digest for the RO Bill, the Bill
reflects a recommendation of the Joint Standing Committee on Electoral
Matters (Report, 1997), that votes in elections not be counted unless
the approved form of declaration envelope is used (clause 188).
Clause 190 prohibits the use of organisation resources
to favour one candidate over another in elections for office.
Clause 191 makes it a strict liability offence
for an officer or employee of an organisation to fail to respond to a
request from a returning officer in respect of an organisation’s membership
register.
Clauses 193, 199 and 202 reflect changes to the
RO Bill regarding the wording of offences and defences in the case of
prosecutions for: failing to act on the valid direction of an electoral
official in connection with an election for office; the preservation of
ballot papers; and hindering the Industrial Registrar in connection with
the performance of a Federal Court sponsored inquiry into an election
for office. Additionally, offences against clauses 193 and 199
become strict liability offences and an element of strict liability is
added to the offence against clause 202.
Clause 215 (the equivalent of clause 212 in the
RO Bill) provides that a person may not hold office where they have been
convicted of a prescribed offence as defined in clause 212. The
main forms of prescription relate to offences involving fraud or dishonesty
punishable by imprisonment for a period of three months or more and offences
in relation to the formation and management of organisations. The Federal
Court may, however, grant leave for a person to hold office notwithstanding
clauses 212 and 215 (refer: clauses 216 and 217).
The present Bill departs from the RO Bill by adding a
new Division to Part 4 of Chapter 7 – clauses 221 to 228. This
Division deals with persons who have been disqualified from office by
virtue of incurring a penalty order imposed under subclause 306(1)
of the Bill. That subclause relevantly refers to imposition of a civil
penalty imposed by the Federal court on an individual of 20 penalty units
(currently a single penalty unit is $110.00).
This chapter is about the recording keeping and accounting
practices of organisations. Organisations must keep lists of members and
office-holders and details of loans, donations and grants must be lodged
with the Industrial Registrar.
As provided by Part 2 of Chapter 8, basic record keeping
requirements are the same as under the RO Bill (clauses 230 and 231).
However, clause 232 makes changes to the fault elements of the
offence of interfering with or destroying a register of members or an
official copy of such a register where either forms part of the organisation’s
official records kept in accordance with clauses 230 and 231. Amongst
other things, clause 232 inserts a strict liability element into
the offence. The equivalent offence under the RO Bill (clause 221) required
proof of intention. It may be noted that unlike the strict liability offences
in the Bill – for example, clause 199 dealing with ballots - clause
232 does not explicitly provide for possible defences. The standard
defences, including that of mistake of fact in relation to the strict
liability element, are nonetheless available under the Criminal Code
Act 1995.
Part 3 of Chapter 8 sets out the requirements that must
be met by organisations in relation to their financial affairs and Part
4 is a new provision dealing extensively with access to organisations’
financial records.
Divisions 1 to 3 of Part 3 are the same as the equivalent
provisions in the RO Bill. Clause 258 in Division 4 of Part 3 dealing
with the obstruction of auditors has been redrafted to insert a strict
liability element into the offence. Statutory defences, as well as Criminal
Code defences are available.
Divisions 5 to 6 of Part 3 are the same as the equivalent
provisions in the RO Bill.
Division 7 of Part 3 deals with members’ access to financial
records. Sub-clause 272(6) has been widened (from clause 261(6)
of the RO Bill) to include requests for information made by a member of
an organisation or on behalf of such a member. Clause 273
deals with orders for the inspection of financial records. A new sub-clause
273(3) has been added to empower the AIRC to make orders authorising
the inspection of financial records that relate to reasonably suspected
breaches of the Act and the Regulations and various reporting standards
and guidelines in respect of the financial administration of a ‘reporting
unit’ (organisation or part thereof).
Part 4 of Chapter 8 of the RO Bill dealt with the Conduct
of officers and employees. That Part does not appear in that form in the
present Bill but constitutes part of a new Chapter 9. Part 4 of Chapter
8 in the present Bill deals with rights of access of officers and former
officers to an organisation’s books.
Chapter 9 –
Conduct of officers and employees
This Chapter lists some of the more significant duties
of officers and employees of organisations.
It is a new Chapter although it picks up elements of
Chapter 8 of the RO Bill. For instance, clauses 281 to 289 and
291 to 293 replicate respectively clauses 269 to 276 and 278 to
281 of the RO Bill.
Clause 277 of the RO Bill that dealt with the use of
position and information in ways that may give rise to a criminal offence
was deleted at the instigation of the Opposition and is not reproduced
in the present Bill.
Part 3 of Chapter 9 is new to this Bill and concerns
the general duties officers and employees in respect of orders or directions
issued by the Federal Court.
These provisions – clauses 294 to 303 – represent
a significant departure from the RO Bill and are potentially quite contentious.
No rationale for these new provisions appears in the
Explanatory Memorandum but the proposed changes are flagged in Minister
Abbott’s Second Reading Speech where he notes that:
The Bill establishes duties on (sic)
officers and employees of organizations to comply with orders and
directions of the Australian Industrial Relations Commission and the
Federal Court. Breach of these duties would result in financial penalties,
and in the case of officers of organizations, disqualification from
holding or seeking office. These provisions which did not form part
of the 2001 Bill, have been included in recognition of the fact that
such breaches pose a threat to the integrity of the federal workplace
relations system.(54)
It would appear that the conduct that has inspired these
proposals is the refusal of some high profile union officials to comply
with Commission orders issued under section 127 of the WR Act to cease
industrial action. As such orders are already enforceable by the Federal
Court under section 127(6) of the WR Act but it would appear that some
employers are reluctant to press their rights under this provision. Contravention
of the proposed provisions would expose union officials not just the relevant
pecuniary penalty but also prevent them holding office by virtue of new
Division to Part 4 of Chapter 7 – clauses 221 to 228 of the present
Bill.
This Chapter is the equivalent of Chapter 9 in the RO
Bill. It also reflects in part an ALP amendment to clause 289 of the RO
Bill. The relevant provision is now located at clause 310, and
deletes the reference to the Employment Advocate. However, new sub-clause
310(2) provides that applications for orders may now be made by the
Minister or their nominee – presumably this could be the Employment Advocate
– in respect of matters covered by clause 305(2)(zk) of the Bill.
The relevant matters in this instance are those arising under clauses
297 to 303 of the Bill regarding the enforcement of Commission and
Court orders.
Clause 305 lists the civil penalty provisions
contained in the Act and provides that application may be made to the
Federal Court for orders regarding contraventions. Clause 306 sets
out the pecuniary penalties that the Court may order (up to $11 000
for bodies corporate and $2200 for natural persons). Clause 307
enables the Federal Court to order a person who has contravened a provision
to make compensation to the organisation and the Court is to calculate
the value of any profits made by the person in assessing the compensation
payable. Clause 309 preserves the operation of other laws concerning
the duties of officers and employees. Clause 310 allows the Registrar
or person authorised by the Registrar amongst others to apply for an order
about a contravention other than a contravention of provisions relating
to officers’ duties. Clause 311 prevents civil proceedings following
criminal proceedings for the same conduct. Clause 313 allows criminal
proceedings to follow civil proceedings for the same contravention. Clause
314 prevents the admission of evidence in criminal proceedings where
the evidence was given previously in civil proceedings in relation to
the same conduct.
This Chapter is the equivalent of Chapter 10 in the RO
Bill.
An ALP amendment to clause 303 of the RO Bill in respect
of the authorisation of financial assistance to members appears as clause
324 of the present Bill.
Otherwise there appear to be no changes of great significance
to the RO Bill. Former clause 316 dealing with offences in relation to
the Registrar’s investigations now appears in a slightly altered form
as clause 337. The changes to this provision appear to reflect
matters of drafting technique rather than differences of substance.
The Chapter also includes provisions validating certain
invalidities in relation to registered organisations. Clause 318 defines
'invalidity'. Clause 319 provides that all acts done in good faith
by a collective body of an organisation or an official are valid despite
any later finding of an invalidity concerning the election or appointment
of a collective body or a person to the collective body, or the making
of rules. Clause 320 validates certain acts after four years have
elapsed. Clause 321 allows the Federal Court to order that clauses
319 or 320 may not apply in relation to certain acts. Clause 322
allows an organisation, its members or an interested person to apply to
the Court for a ruling on an alleged invalidity. The Court may make orders
to correct the invalidity. This includes the reconstruction of a defunct
branch (clause 323).
Part 3 allows financial assistance from the Commonwealth
to meet the costs of legal proceedings to be granted. Clause 324
authorises the Minister to grant legal assistance in respect of proceedings
for suspected contravention of defined provisions. Clause 325 enables
the Federal Court to certify that an unsuccessful applicant for assistance
had acted reasonably seeking the assistance. Clause 326 allows
the Minister to refuse assistance in relation to proceedings concerning
certain matters (eg relating to rules) where the order sought is substantially
the same as that sought in other proceedings. Clause 327 provides
financial assistance is not normally payable for two or more counsel.
Part 4 gives the Registrar powers to make inquiries into
the affairs of organisations. Clause 330 enables the Registrar
or registry staff to make inquiries regarding compliance with Part 3 of
Chapter 8 (accounts and audit) reporting guidelines, relevant rules governing
reporting and finances. Clause 331 enables the Registrar to compulsorily
conduct an investigation to determine whether there has been a contravention
of Chapter 8 Part 3, where satisfied that there are reasonable
grounds for doing so. Clause 332 allows the Registrar to investigate
an irregularity or deficiency of an organisation's accounts arising the
auditor's report. Clause 333 allows that a prescribed number of
members of a reporting unit may request its finances to be investigated
by the Registrar. Clause 335 prescribes the assistance to be afforded
in the conduct of an investigation. Sub-clause 336(4) requires
a reporting unit to remedy the contravention. Clause 337 makes
it an offence to refuse to cooperate with an investigation, if requested
to do so by the Registrar.
Part 5 deals with the jurisdiction of the Federal Court.
Clause 338 vests the Federal Court with jurisdiction in relation
to matters arising under this Bill or the WR Act. Clause 339 sets
out certain matters in which the Federal Court has exclusive jurisdiction
(eg an act for which an organisation is to be sued). Clause 340
requires the Federal Court's jurisdiction to be exercised by a Full Court
in relation to certain matters (eg cancellation of registration).
Part 6 reproduces provisions currently found in Division
12 of Part 1X of the WR Act. A member's right to participate in organisation
ballots is provided in clause 345. A member's request for information
concerning elections and/or ballots is provided for in clause 346.
A copy of the organisation's rules must be supplied to a member where
the request has been put in writing (clause 347).
The general aim of this Bill is to remove administration
of registered organisations to a separate statute. Thus, the Workplace
Relations Act 1996 would deal primarily with awards, certified
agreements and Australian Workplace Agreements. However, as a result of
the report in the Financial Review (29 May 2002, cited earlier) which
notes that agreement seems to be available to pass the current Bill as
a schedule to the Workplace
Relations Act 1996 and not as it is currently proposed
to be a new statute, it would be prudent to reserve comments about the
new arrangements until amendments to the Bill (or indeed a new Bill) are
presented.
One ongoing query may however remain. This concerns the
more onerous duties of officials of organisations under the proposed arrangements
and whether these duties may dissuade persons from nomination to elected
positions.
- House of Representatives, Debates, 21 March 2002, p. 1835.
- ibid.
- http://www.aph.gov.au/house/committee/em/ie/ieindex.htm
- This also brings together as attachments a number of other useful
documents including: The Recommendations of the Review of the current
arrangements for Governance of Industrial Organisations, prepared
by Blake Dawson and Waldron (June 1998) and the Government Response,
tabled in the House of Representatives on 15 July 1998, to the Report
of the Joint Standing Committee on Electoral Matters: Inquiry into
the role of the Australian Electoral Commission in Conducting Industrial
Elections : http://www.dewrsb.gov.au/ministers/reith/disc_info/disc/accountability.pdf
- See: http://www.aph.gov.au/senate/committee/EET_CTTE/WR%20tranbus_bill/WR%20Bills
%202001.pdf
- Braham Dabscheck and John Niland, Industrial Relations in Australia,
George Allen and Unwin, 1981, pp. 133–134.
- ABS, Employee Earnings, Benefits and Trade Union Membership August
2001, Cat No. 6310.0, 28 February 2002.
- ABS and other figures cited in Creighton and Stewart, op cit, pp.
352–354.
- According to Australian Industrial Registry data, presently there
are also 69 federally registered employer associations.
- Breen Creighton and Andrew Stewart, Labour Law: an introduction,
third edition, Federation Press, 2000, p. 338.
- Jumbunna Coal Mine NL v Victorian Coal Miners’ Association
(1908) 6 CLR 309. Burwood Cinema Ltd v Australian Theatrical Employees’
Association (1925) 35 CLR 528.
- Report of Mr Justice Sweeney: Royal Commission into Alleged Payments
to Maritime Unions (AGPS, 1976).
- Department of Industrial Relations Accounting Practices and Financial
Reporting Requirements: Guidelines for Organisations Registered under
the Commonwealth Conciliation and Arbitration Act 1904, (AGPS, 1980).
- See Regulations 107 and 108 of the Workplace Regulations 1996.
- Report of Commissioner J. Winneke: Royal Commission into the Activities
of the Australian Building Construction Employees and Builders Labourers'
Federation (AGPS, 1982).
- Report of the Committee of Review into Australia’s Industrial Relations
Law and Systems (AGPS, 1985) p. 483.
- ibid., p. 482.
- Ernst and Whinney (Chartered Accountants) Review of Financial Accounting
and reporting Requirements, (April 1998), p. 6.
- ibid., p. 7.
- ibid., p. 25.
- The Hon Peter Reith, Accountability and Democratic Control of Registered
Industrial Organisations, October 1999, p. 1.
- The Hon Peter Reith MP, Better Pay for Better Work: the Federal
Coalition’s Industrial Relations Policy (February 1996).
- Agreement between the Commonwealth Government and the Australian
Democrats on the Workplace Relations Bill (October 1996).
- See Workplace Relations Act Monitor (June 2001). This site
is maintained by the Department of Employment and Workplace Relations
http://www.dewrsb.gov.au/workplaceRelations/default.asp
- See Schedule 7 of the Workplace Relations and Other Legislation
Amendment Act 1997 and subsections of s.253ZJ of the Workplace
Relations Act.
- Tom Bramble, ‘Deterring Democracy; Australia’s New Generation of Trade
Union Officials’ Journal of Industrial Relations v.37(3) 1995.
See also Braham Dabscheck, The Struggle for Australian Industrial
Relations (OUP, 1995) p. 134.
- Richard Hall, Bill Harley and Matthew Tomkins ‘The bureaucratisation
of Australian unions? Evidence from a national survey’, Journal of
Sociology, v. 36, no. 3, November 2000.
- Anthony Forsyth, ‘Ministerial Discussion Paper – Accountability and
Democratic Control of Registered Industrial Organisations’, Australian
Journal of Labour Law, v.12 (1999) p. 196.
- CCH Australian Labour Law Reporter [¶7-817].
- More Jobs, Better Pay The Federal Coalition's Workplace Relations
Policy, September 1998, p. 28: http://www.liberal.org.au/archive/1998%20election%20policies/workplace/workplace.html
- See address to the Australian Institute of Management by the Hon.
Peter Reith (Melbourne 22 February 1999).
- ‘Union finances reviewed by DPP’, The Australian, (6 January
1999).
- Personal communication with officers of the Australian Industrial
Registry.
- ‘Kelty comes out for AWU life-line’, The Australian, 27 August
1998.
- ‘Is this man the future of the ALP?’ Australian
Financial Review 8 June 2002.
- Blake, Dawson and Waldron, Review of Current Arrangements for Governance
of Industrial Organisations: Report and Recommendations (June 1998)
http://www.dewrsb.gov.au/workplacerelations/policy/governance/finalrep.htm.
- See The Continuing Reform of Workplace Relations: Implementation
of ‘More Jobs Better Pay’ Implementation Discussion Paper issued
by the Hon. Peter Reith MP, May 1999: ‘These provisions – which govern
matters such as the financial accounting and auditing and reporting
obligations of organisations and regulation of industrial elections
– are detailed and complex. They have no relevance to many users of
the workplace relations systems’ p. 28.
- Inter alia, the terms of reference commissioning Blake Dawson
Waldron required any recommended changes on standards to be ‘consistent
with the statutory obligations to be met by corporations and other comparable
organisations’.
- Faculty of Commerce, Griffith University.
- Mark Mourell, ‘Industrial Organisations and Corporate Accountability’,
Australian Journal of Labour Law, v.12, 1999, p. 137.
- ibid.
- The Continuing Reform of Workplace Relations: Implementation of
‘More Jobs Better Pay’ Implementation Discussion Paper issued by
the Hon. Peter Reith MP, May 1999.
- The Hon. Peter Reith, Accountability and Democratic Control of
Registered Industrial Organisations, October 1999.
- Joint Standing Committee on Electoral Matters (Parliament of Australia),
Industrial Elections; report of the inquiry into the role of the
Australian Electoral Commission (AEC) in conducting industrial elections,
(AGPS, October 1997).
- Anthony Forsyth, ‘Trade Union Regulation and the Accountability of
Union Office-Holders: Examining the Corporate Model’ Australian Journal
of Labour Law, v.13, 2000, p. 36–37.
- Anthony Forsyth, ‘Ministerial Discussion Paper – Accountability and
Democratic Control of Registered Industrial Organisations’, Australian
Journal of Labour Law, v.12, 1999, p. 197.
- ‘Beyond the Second Wave – the Government is seeking new ways to develop
a ‘sensible framework’ for workplace relations’, Industrial Relations
and Management Newsletter, May 2000.
- Senate Employment, Workplace Relations, Small Business and Education
Legislation Committee, Consideration of Provisions: Workplace Relations
(Registered Organisations) Bill 2001, Report, June 2001, pp.
34 and 36 respectively.
- House of Representatives, Debates, 27 August 2001, pp. 30308–30323.
- Policy issued by the Prime Minister 12 October 2001. See parts 10
and 15.
- ‘Labor gives union bill the green light’, 29 May 2002, p. 7.
- House of Representatives, Debates, 27 August 2001, p. 30308.
- Explanatory Memorandum, p. 37.
- ibid., 21 March 2002, p. 1835.
Steve O'Neill
21 June 2002
Bills Digest Service
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