Approval for submission to ballot of amalgamation not involving extension of eligibility rules etc
55 Approval for submission to ballot of amalgamation not involving extension of eligibility rules etc
Approval must be given if certain conditions satisfied
If, at the conclusion of the hearing arranged under section 53 in relation to a proposed amalgamation, the FWC is satisfied that:
the amalgamation does not involve the registration of an association as an organisation; and
a person who is not eligible for membership of an existing organisation concerned in the amalgamation would not be eligible for membership of the proposed amalgamated organisation immediately after the amalgamation takes effect; and
any proposed alteration of the name of an existing organisation concerned in the amalgamation will not result in the organisation having a name that is the same as the name of another organisation or is so similar to the name of another organisation as to be likely to cause confusion; and
any proposed alterations of the rules of an existing organisation comply with, and are not contrary to, this Act, the Fair Work Act, modern awards or enterprise agreements, and are not contrary to law; and
any proposed de‑registration of an existing organisation complies with this Act and is not otherwise contrary to law;
the FWC must approve the submission of the amalgamation to ballot.
Approval generally refused if conditions not satisfied
If the FWC is not satisfied, the FWC must, subject to subsections (3) and (7), refuse to approve, under this section, the submission of the amalgamation to ballot.
Approval may be given if conditions will be satisfied later
If, apart from this subsection, the FWC would be required to refuse to approve the submission of the amalgamation to ballot, the FWC may:
permit the applicants to alter the scheme for the amalgamation, including any proposed alterations of the rules of the existing organisations concerned in the amalgamation; or
accept an undertaking by the applicants to alter the scheme for the amalgamation, including any proposed alterations of the rules of the existing organisations concerned in the amalgamation;
and, if the FWC is satisfied that the matters mentioned in subsection (1) will be met, the FWC must approve the submission of the amalgamation to ballot.
Permission to alter amalgamation scheme
A permission under paragraph (3)(a):
may, despite anything in the rules of an existing organisation concerned in the proposed amalgamation, authorise the organisation to alter the scheme (including any proposed alterations of the rules of the organisation) by resolution of its committee of management; and
may make provision in relation to the procedure that, despite anything in those rules, may be followed, or is to be followed, by the committee of management in that regard; and
may be given subject to conditions.
Powers of the FWC if conditions or undertakings breached
If:
the FWC:
gives a permission under paragraph (3)(a) subject to conditions; or
accepts an undertaking under paragraph (3)(b); and
the conditions are breached or the undertaking is not fulfilled within the period allowed by the FWC;
the FWC may:
amend the scheme for the amalgamation, including any proposed alterations of the rules of the existing organisations concerned in the proposed amalgamation; or
give directions and orders:
in relation to the conduct of the ballot for the amalgamation; or
otherwise in relation to the procedure to be followed in relation to the amalgamation.
Subsection (5) does not limit by implication the powers that the FWC has apart from that subsection.
Powers of the FWC to adjourn proceeding
If, apart from this subsection, the FWC would be required to refuse to approve the submission of the amalgamation to ballot, the FWC may adjourn the proceeding.
Subsection (7) does not limit by implication the power of the FWC to adjourn the proceeding at any stage.
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