Fair Work (Registered Organisations) Amendment Act 2016

The Fair Work (Registered Organisations) Amendment Act 2016 is a Commonwealth amending Act. Its stated purpose is to amend the Fair Work (Registered Organisations) Act 2009, and for related purposes. That point matters because the Act is not a broad workplace law applying to every employer, every business association or every union in Australia.

The Act is focused on the registered organisations system. In practical terms, that means the main targets are registered employer organisations, registered employee organisations and the people who hold office in those organisations. If your business is not part of that system, the Act will usually matter only indirectly.

The official text shows two main reform packages. Schedule 1 deals with the Registered Organisations Commissioner. Schedule 2 deals with increased disclosure requirements, investigation powers and penalties. Even from the title and structure alone, the practical message is clear: this Act is about governance, accountability, reporting and enforcement within the registered organisations framework.

The clearest group in scope is organisations registered under the Fair Work (Registered Organisations) Act 2009. That includes registered employer organisations and registered employee organisations. The Act also repeatedly deals with office holders of those organisations, because the amended framework is designed to promote efficient management and high standards of accountability of organisations and their office holders to members.

For business owners, the important distinction is between a registered organisation and an ordinary business or industry body. A company, startup or small business is not brought into this regime just because it employs staff, bargains with employees, belongs to an industry network or deals with a union from time to time. The stronger direct obligations sit with the registered organisation itself and with its office holders.

A business may still be affected if it falls into one of these practical categories:

If none of those apply, the Act is less likely to create direct compliance work for your business. It may still matter as part of the broader workplace relations landscape, but that is different from being directly regulated by it.

The Act made structural changes to the administration of the registered organisations regime. A major change was the creation of the Registered Organisations Commissioner and the Registered Organisations Commission. The legislation inserted a new Part 3A into Chapter 11 of the Fair Work (Registered Organisations) Act 2009.

The Commissioner is established by the Act and is given functions that include promoting efficient management of organisations, high standards of accountability of organisations and their office holders to members, and compliance with financial reporting and accountability requirements. The Commissioner also monitors acts and practices to ensure compliance with provisions dealing with the democratic functioning and control of organisations.

The Registered Organisations Commission is also established. Its function is to assist the Commissioner in performing the Commissioner's functions. The Act also sets out the Commissioner's appointment framework, staffing arrangements, consultant arrangements, reporting arrangements and a special account connected with the Commissioner's functions.

Another major practical change is that many functions previously tied to the Fair Work Commission or its General Manager were shifted to the Commissioner. The amendments in Schedule 1 repeatedly replace references to the General Manager or the FWC with references to the Commissioner. This affects areas such as elections, access to records, delivery of records, lodging information, reports and related administrative functions.

The Act also expressly deals with inquiries and investigations by the Commissioner. The headings amended by the Act include provisions such as Commissioner may make inquiries, Commissioner may conduct investigations, and offences in relation to investigation by Commissioner. That tells businesses and office holders that the compliance framework is not just administrative. It also includes investigative and enforcement mechanisms.

The Act is most relevant when a business crosses into the registered organisations system in a concrete way. The official text points to several practical trigger points.

For many ordinary employers, collective bargaining or dealing with a union does not by itself mean this Act directly regulates them. The more reliable trigger is whether the organisation involved is a registered organisation under the 2009 Act and whether the issue concerns that organisation's own governance, records, reporting, elections or compliance obligations.

The Act is an amending Act, so many of the detailed obligations sit in the Fair Work (Registered Organisations) Act 2009 as amended. Even so, the official text makes several practical obligations and compliance themes clear.

First, registered organisations need to deal with the Commissioner as the relevant regulator for many functions that were previously handled elsewhere. The Act changes headings and operative provisions so that information, reports and records are lodged with, provided to, or dealt with by the Commissioner.

Second, the framework is built around financial reporting and accountability. The Commissioner's statutory functions expressly include promoting compliance with financial reporting and accountability requirements. Businesses involved in managing or supporting a registered organisation should therefore treat financial reporting systems, governance records and internal approvals as core compliance material.

Third, the Act supports inquiries and investigations. The Commissioner may make inquiries and conduct investigations, and the legislation includes offences in relation to investigation by the Commissioner. If your business is assisting a registered organisation, document handling and response processes should be organised and accurate.

Fourth, the Act supports democratic functioning and control of organisations. The Commissioner's functions include monitoring acts and practices to ensure compliance with provisions dealing with democratic functioning and control. That means election processes, office holder processes and related records are not just internal administration issues.

Fifth, the Act includes a directions framework. The legislation inserts a definition of directions contravention and provides for applications for orders in relation to directions contraventions. If a registered organisation receives a direction under the relevant provisions, it should treat compliance as a formal legal issue, not an informal request.

The commencement table in the Act is important because different parts started on different dates.

Sections 1 to 3 and anything in the Act not otherwise covered by the commencement table started on the day of Royal Assent, which was 24 November 2016.

Schedules 1 and 2 were to commence on a day or days fixed by Proclamation, with a backstop rule if commencement did not occur within 12 months after Royal Assent. The commencement information recorded in the Act states that Schedule 1 commenced on 1 May 2017 and Schedule 2 commenced on 2 May 2017.

When checking obligations, businesses should remember that this page is about the amending Act itself. The practical rules now sit within the Fair Work (Registered Organisations) Act 2009 as amended. If you are dealing with a current compliance issue, you should read the current consolidated version of the principal Act as well as any current guidance from the relevant regulator.

The safest way to read this legislation is to start with scope. Ask whether the entity involved is actually a registered organisation under the Fair Work (Registered Organisations) Act 2009. If the answer is no, this Act may still be part of the background legal setting, but it is less likely to impose direct obligations on your business.

If the answer is yes, then focus on the role your business plays. Are you the organisation itself, a member, an office holder, or a service provider helping with reporting, records, elections or responses to the Commissioner? The answer will shape your risk level.

Also remember that this Act mainly changes the administration and enforcement architecture of the registered organisations regime. It establishes the Commissioner and Commission, reallocates functions, and strengthens the framework around disclosure, investigations and penalties. So if you are reviewing older internal procedures that still refer to the General Manager or the FWC for registered organisation matters, those references may need updating.

Before relying on this page, check three things: whether the organisation is registered, whether the issue arises under the amended 2009 Act rather than another workplace law, and whether the current consolidated legislation contains later amendments affecting the point you are dealing with.

Official source: Federal Register of Legislation, Fair Work (Registered Organisations) Amendment Act 2016.

The Act is in force and was assented to on 24 November 2016. The legislation text identifies Schedule 1 as dealing with the Registered Organisations Commissioner and Schedule 2 as dealing with increased disclosure requirements, investigation powers and penalties.