Commonwealth Numbered Regulations - Explanatory Statements

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WORKPLACE RELATIONS REGULATIONS (AMENDMENT) 1996 NO. 328

Statutory Rules 1996 No. 328

(Issued by the Authority of the Minister for Industrial Relations)

Workplace Relations Act 1996

Workplace Relations Regulations (Amendment)

Section 359 of the Workplace Relations Act 1996 (the WR Act) provides that the GovernorGeneral may make regulations prescribing matters required or permitted by the WR Act, or necessary or convenient to give effect to the WR Act.

Subsection 4(1) of the Acts Interpretation Act 1901 provides that where an Act has been enacted but has not come into force, and that Act confers power to make a regulation, such a regulation may be made in anticipation of the commencement of that Act as if the Act had come into force. The Workplace Relations and Other Legislation Amendment Act 1996 (the WROLA Act) received the Royal Assent on 25 November 19.96. These regulations are made in anticipation of the commencement of various schedules of that Act. The WROLA Act evinces no intention contrary to section 4 of the Acts Interpretation Act 1901.

Division 7A of Part IX of the WR Act provides for certain organisations (and branches of such organisations) that have taken part in amalgamations under Division 7 of Part IX to withdraw from those amalgamations. Division 7A gives effect to the Government's policy of allowing organisations which had been deregistered as a result of amalgamations to "disamalgamate" from the amalgamated organisations and become registered under the Act in their own right. (Registration confers a range of benefits including, for example, the right to institute proceedings under the Act to obtain and enforce awards, the fight to represent members in connection with the negotiation of agreements, and in some instances, be a party to agreements and the right to hold and deal with real or personal property.)

The purpose of these regulations is to prescribe those matters which, by Division 7A of Part IX are required to be prescribed, or which are necessary or convenient to be prescribed for the purposes of that Division. The regulations make provision in relation to:

*       the making of applications for withdrawal from amalgamations;

*       the conduct of ballots in connection with such applications;

*       the determining of the date on which a withdrawal is to take effect;

*       the disposition of assets and liabilities;

*       the effect of, withdrawal on awards, orders and other instruments and on pending proceedings to which the relevant amalgamated organisation is a party; and

*       the holding of office after withdrawal,

The Minute recommends that Regulations be made in the form proposed. Details of the proposed regulations are set out in the attachment.

ATTACHMENT

Regulation 1 of the amending regulations provides that the regulations commence on the same day as Schedule 14 to the Workplace Relations and Other Legislation Amendment Act 1996 commences. The effect is that the regulations commence at the same time as Division 7A commences.

Regulation 2 of the amending regulations provides that the Workplace Relations Regulations (the WR Regulations) are amended as set out in the amending regulations.

Regulation 3 of the amending regulations inserts Division 5A of Part VII of the WR Regulations. Division 5A of the WR Regulations makes provision for withdrawals from amalgamations and related matters as required by Division 7A of Part IX of the WR Act, or as necessary or convenient to be prescribed for the purposes of Division 7A.

Regulation 98H defines certain terms used in Division 5A.

Regulation 981 prescribes the minimum number of persons who may make an application to the Federal Court of Australia for a ballot to be held to determine whether a constituent part should withdraw from an amalgamation. The regulation is required by paragraph 253ZJ(3)(a) of the WR Act.

Regulation 98J prescribes the form in which an application for a ballot must be made and the information which an application must contain. The regulation is required by subsection 253ZJ(4) of the WR Act.

Regulation 98K prescribes the persons who may make submissions to the Court on whether a ballot should be held. The regulation is required by subsection 253ZL(2) of the WR Act.

Regulation 98L provides that where the Court orders that a ballot be held but does not fix the commencing day or the closing day of the ballot, the commencing day is to be the thirty-fifth day after the Court makes the order; or, if that day falls on a weekend, the next following Monday; and the closing day is to be the twenty-first day after the commencing day. The WR Act does not expressly require the Court to fix a commencing day and a closing day for a ballot and the regulation is necessary to cover circumstances where the Court does not do so.

Regulations 98M to 98ZG inclusive make provision for the conduct of ballots and inquiries into ballot irregularities. As far as they are applicable, these provisions reflect the existing provisions in the WR Act concerning ballots for the purpose of proposed amalgamations.

Regulation 98M requires the electoral official conducting a ballot to notify persons entitled to vote in the ballot of the commencing and closing days. Such notification could be by newspaper advertisement, post, or other reasonable means.

Regulation 98N requires the preparation of a roll of voters at the direction of the electoral conducting a ballot.

Regulation 98O provides that members of the amalgamated organisation and any other person authorised by the electoral official conducting a ballot may inspect and make copies of the roll of voters prepared for the ballot during the period prescribed and at the time and places prescribed.

Regulation 98P provides that the electoral official conducting a ballot may take any action and give any direction that the official reasonable considers necessary to avoid any irregularity occurring in relation to the ballot. Subregulation 98P(2) prohibits a person from contravening such a direction without reasonable excuse and would impose a penalty of 5 penalty units for an individual and 10 penalty units for a body corporate.

Regulation 98Q provides that where an application for approval for a withdrawal from an amalgamation has bees been made the Registrar of the Court must promptly give the Australian Electoral Commission a copy of the question to be put to the ballot.

Regulation 98R requires the electoral official conducting a ballot to provide, on request, a person entitled to vote at the ballot with a copy of the question to be put to the ballot.

Regulation 98S provides that the ballot paper to be used in a ballot must be in accordance with Form 11B and prescribes the information' that the electoral official conducting a ballot may include in a ballot paper for the purpose of providing information and directions to person voting in the ballot.

Regulation 98T makes provision concerning the dispatch of ballot papers to each person entitled to vote in a ballot by the electoral official conducting the ballot.

Subregulation 98U(1) prescribes the circumstances in which an electoral official must provide a duplicate ballot paper and related documents. An electoral official will be required to issue duplicate papers if satisfied that a ballot paper or related paper had not been received, had been lost or destroyed, or in the case of a ballot paper, had been spoilt.

Subregulation 98U(2) makes provision concerning an application for a duplicate ballot or related paper.

Subregulation 98U(3) prescribes what an electoral official must do if he or she receives a spoilt ballot paper.

Regulation 98V prescribes what a person voting at a ballot must do to cast a valid vote. Subregulation (1) provides that a person must record "YES" or "NO" in the space provided on the ballot paper. Subregulation (2) provides for the way in which a voter must forward his or her ballot paper to the electoral official conducting the ballot.

Regulation 98W provides that an electoral official conducting a ballot must keep the ballot papers and related papers in safe custody until the completion of the scrutiny of the ballot.

Regulation 98X prescribes the manner in which an electoral official must work out the result of a ballot.

Subregulation 98X(2) requires an electoral official conducting a ballot to, as soon as practicable after the close of the ballot, admit the valid votes and reject the invalid votes; count and record the valid votes; and count the informal votes.

Subregulation 98X(3) prescribes the circumstances in which a vote is to be regarded as informal.

Subregulation 98X(4) provides that a vote cast with a ballot paper which does not bear the initials or a facsimile of the initials of an electoral official is not informal for that reason alone if the electoral official is satisfied that the ballot paper is authentic.

Subregulation 98X(5) prescribes what an electoral official must do upon being informed by a scrutineer that the scrutineer objects to admission or rejection of a ballot paper.

Subregulation 98X(6) prescribes what an electoral official must do if informed by a scrutineer that, in the scrutineer's opinion, an error has been made in the scrutiny of the ballot.

Regulation 98Y would provide for the appointment of scrutineers and related matters.

Subregulations 98Y(1) and (2) provide that scrutineers may be appointed by the committee of management of a constituent part and that such appointments must be by signed instrument.

Subregulations 98Y(3) and (4) provide for the appointment of scrutineers by the committee of management of the amalgamated organisation.

Subregulation 98Y(5) provides for the times at which a scrutineer may be present during a ballot.

Subregulation 98Y(6) provides that an electoral official conducting a ballot may refuse to allow a scrutineer to be present if the scrutineer does not produce his or her instrument of appointment on request.

Subregulation 98Y(7) provides that during the scrutiny of a ballot the number of scrutineers present at any one time must not exceed the number of electoral officials engaged in the scrutiny at that time.

Subregulation 98Y(8) provides that a scrutineer who objects to a decision that a ballot paper is formal or informal, or who believes that an error has been made in the conduct of the scrutiny may inform the electoral official.

Subregulation 98Y(9) provides that a person who is not entitled to be present, or to remain present at a scrutiny, or who interrupts a scrutiny may be directed to leave by an electoral official. Subregulation (10) provides that a person must not, without reasonable excuse, contravene such a direction.

Regulation 98Z provides that, within 14 days after the closing day of a ballot, the electoral official conducting the ballot must prepare a certificate showing the prescribed information, which is information showing the result of the ballot. The electoral official is required to immediately give a copy of the certificate to the Court, the Industrial Registrar, each applicant and the amalgamated organisation from which the constituent part withdrew.

Regulation 98ZA requires the Australian Electoral Commission to retain all ballot papers and related documents until any application for an inquiry into the ballot has been completed or the time for making such an application has expired.

Regulation 98ZB provides that a person who is entitled to vote in a ballot may obtain specified information from the electoral officer conducting the ballot for the purpose of determining whether there has been an irregularity in relation to the ballot.

Regulation 98ZC provides for applications to be made to the Court for an inquiry into alleged irregularities in relation to ballot. Such an application would be required to be made within 30 days after an electoral official had signed a certificate in relation to the ballot; to be made by a person entitled to vote in the ballot; to be in accordance with Form 11C; and to be accompanied by a statutory declaration verifying the facts set out in the application. Subregulation 98ZC(3) provides that an inquiry into a ballot is taken to have been instituted when such an application is lodged.

Regulation 98ZD provides for the fixing of a time and place for the hearing of such an inquiry and for notification to be given to relevant persons.

Regulation 98ZE provides that if an inquiry has been instituted the Court or a Judge may authorise any person to inspect relevant documents. Subregulation 98ZE(2) prohibits a person from wilfully hindering or obstructing such an inspection and would provide a penalty of 5 penalty units for an individual and 10 penalty units for a body corporate.

Regulation 98ZF provides for the procedure at a hearing of an inquiry into a ballot.

Regulation 98ZG provides for the orders which the Court may make after an inquiry into a ballot has been instituted but before the Court determines whether there has been an irregularity that has, or may have, affected the result of a ballot that is not completed. By subregulation 98ZG(2) such an order continues in force until the end of the inquiry unless discharged or expressed to expire at some other time. Subregulation 98ZG(3) prohibits a person from contravening such an order an impose penalties of 5 penalty units for an individual and 10 penalty units for a body corporate.

Regulation 98ZH provides for the determination by the Court of the day on which the withdrawal is to take effect. Subregulation 98FZH(1) provides for the making of an application to determine the withdrawal day. Subregulation 98ZH(2) provides that, in considering whether any orders under paragraph 253ZP(1)(c) are necessary in connection with giving effect to the withdrawal, the Court shall have regard to whether the rules of the constituent part and any proposed alterations to those rules comply with the Act. Subregulation 98ZH(3) provides that where, under section 253ZP of the WR Act, the Court has determined a day as the day on which a withdrawal from an amalgamation is to take effect, the Court shall publish notice of the determination in at least one newspaper.

Regulation 98ZI provides that where provision is made for the publication of a notice in a particular way, the publishing of further notice of the matter by other reasonable means is not precluded.

Regulation 98ZJ provides for the particulars to be entered in the register kept under paragraph 63(1)(a). Such particulars are required to be prescribed by subsection 253ZQ(b).

Regulation 98ZK provides that, following a withdrawal from an amalgamation and the registration of the constituent part, an agreement in force under section 202 of the WR Act continues to apply to the newly registered organisation as if references to the amalgamated organisation from which it withdrew included references to the newly registered organisation. (An agreement under section 202 of the WR Act is an agreement between an organisation registered under the Act and a State union to the effect that members of the State union who are ineligible for membership of the organisation are eligible to become members under the agreement).

Regulation 98ZL makes similar provision in respect of certain other instruments. By regulation 98R "instrument" has the same meaning as it has in Division 7 of Part IX of the WR Act, namely an instrument of any kind, including contracts, deeds, leases and mortgages whether express or implead and whether oral or written. By subregulation 98ZL(2) the regulation does not apply to agreements under section 202 of the WR Act (for which separate provision is made by the preceding regulation) or orders, awards or certified agreements (for which provision is made in section 253ZS of the WR Act).

Regulation 982M makes provision for the newly registered organisation to, in appropriate cases, be a party to proceedings to which the amalgamated organisation was a party and which were pending before any court or tribunal immediately before the withdrawal of the newly registered organisation from the amalgamation.

Regulation 98ZN to 98ZQ provide for the transfer of assets and liabilities to the newly registered organisation in accordance with orders made by the Court under paragraph 253ZP(1)(b). Regulations 98ZN, 98ZO, 98ZP and 98ZQ deal respectively with land and interests in land, charges, shares and other assets.

Regulation 98ZR makes provision for the holding of office in the newly registered organisation in the period following its registration by a person who, before the withdrawal, held an equivalent office in the amalgamated organisation. The regulation does not permit the rules of a newly organisation to permit the person to hold office for longer than a period that equals the unexpired portion of his or her term of office, or for a period of longer than 12 months after the withdrawal, whichever is later.

Regulation 4 of the amending regulations amends Schedule 1 to the WR Regulations to insert new forms 11A, 11B and 11C. Form 11A is for the purpose of making an application to the Court for a ballot to be held in relation to a proposed withdrawal from an amalgamation. Form 11B prescribes the form of ballot paper to be used in such ballots. Form 11C is for the purpose of making an application for an inquiry into an alleged irregularity in relation to the conduct of such a ballot.