National Workplace Relations – Extensive set of annotations and introductory commentary to the Fair Work (Registered Organisations) Act 2009 forthcoming

by Aaron Neal
BEco, LLB (Hons) (Syd); Solicitor, Supreme Court of New South Wales

Aaron has extensive experience in workplace relations and employment law, having been an Associate to Justice Marshall of the Federal Court of Australia, a Legal and Policy Officer at the Commonwealth Department of Employment and Workplace Relations, practiced as a barrister at the New South Wales Bar, and worked as in house lawyer at a number of unions, currently as Senior National Legal Officer at the Maritime Union of Australia, Sydney.

Aaron is involved with a number of Thomson Reuters works. He is a contributing author of the National Workplace Relations subscription service, as well as co-General Editor of the Fair Work Legislation 2015 book.

Key section annotations and commentary

The workplace relations landscape in recent years – and 2015 to date in particular – has been characterised by an acute focus by the Abbott and Turnbull Governments, the Heydon Royal Commission into Trade Union Governance and Corruption (which delivered its final report in December 2015), the courts, tribunals, practitioners, employer associations and unions alike on the law relating to the regulation of organisations registered under the Fair Work (Registered Organisations) Act 2009 (FWRO Act).

Indeed, since 2012, there has been an increasing desire and momentum in government and elsewhere towards increased regulation of organisations registered under the FWRO Act.

Accordingly, the National Workplace Relations Registered Organisations Practice Area now provides key section annotations and commentary.

Additional disclosure requirements

With the passage of the Fair Work (Registered Organisations) Amendment Act 2012, certain mandatory compliance and disclosure requirements imposed on registered organisations were proscribed in federal legislation (requiring amendment of all federally registered organisations’ rules) for the first time.

The disclosure requirements are dealt with by Divs 1 and 3A of Pt 2 of Ch 5 – Rules of Organisations of the FWRO Act and relate to the following:

• compulsory expenditure policies of registered organisations;
• compulsory training of officers of registered organisations in financial management;
• disclosure of remuneration paid to officers and relatives of officers of registered organisations;
• disclosure of material personal interests of officers and relatives of officers of registered organisations; and
• disclosure of payments made by registered organisations to certain third party-related parties or declared bodies or persons.

Additionally, under Ch 8 – Records and Accounts, registered organisations are required to keep financial and other records and accounts and make related annual financial disclosures.

Clearly then, the law relating to the regulation of registered organisations continues to evolve, and there are real and practical consequences of recent enactments and proposed legislation in this area with which practitioners, HR, unions, tribunals and employer and professional associations and business professionals must be equipped to deal. This practice area seeks to assist practitioners navigate the increasingly proscriptive regulation of registered organisations. Whilst case law and legislative developments are a focus, the service also seeks to provide guidance to the application of the FWRO Act in practice.

Pending legislation in 2016–2017

Additionally, there are two Bills, both most recently rejected by the Senate on 18 April 2016, concerning the law regulating organisations registered under the FWRO Act, the Building and Construction Industry (Improving Productivity) Bill 2013 [No 2] and the Building and Construction Industry (Consequential and Transitional Provisions) Bill 2013 [No 2].

The two Bills seek to re-establish the Australian Building and Construction Commission (ABCC). The ABCC Bills also seek to introduce significant new offences (see Ch 5 – Unlawful action; Ch 6 – Coercion, discrimination and unenforceable agreements) as well as new significant (and controversial) powers to obtain information (see Ch 7 – Powers to obtain information) and enforcement provisions (see Ch 8 – Enforcement) (chapter references are to the Building and Construction Industry (Improving Productivity) Bill 2013 [No 2]).

The passage of the two Bills would also allow the government to establish its draft Building Code (Building and Construction Industry (Fair and Lawful Building Sites) Code 2014) as a legislative instrument, having been released in two draft iterations in April and November 2014.

Having been rejected again by the Senate in April 2016, the ABCC Bills served as the double dissolution trigger for the early federal election called by the Turnball government to be held on 2 July 2016.

A third Bill, the Fair Work (Registered Organisations) Amendment Bill 2014 [No 3], that would amend the FWRO Act, has been rejected three times by the Senate, most recently in August 2015 (and twice previously as the Fair Work (Registered Organisations) Amendment Bill 2013 and Fair Work (Registered Organisations) Amendment Bill 2014). The government has reintroduced the third Bill into parliament (with amendments based on the recommendations of the Heydon Royal Commission into Trade Union Governance and Corruption) on 18 April 2016, in the special April 2016 sitting.

The third Bill will apply to all federally registered organisations and seeks to establish a new Registered Organiations Commissioner and Commission with overall responsibility for the regulation of federally registered organisations (Sch 1 to the Fair Work (Registered Organisations) Amendment Bill 2014 [No 3] and again, subject officers of registered organisations to increased disclosure requirements, akin to those applicable to company directors under the Corporations Act 2001, investigation powers, and penalties (Sch 2 to the Fair Work (Registered Organisations) Amendment Bill 2014 [No 3]).

It is envisaged that if the Turnbull Government wins a sufficient majority in both houses at the 2016 federal election, all three Bills will be enacted in one form or another later this year following the federal election.