Industrial Relations Act 1996

Declaration by Commission of dysfunction, misconduct or vacancy in offices The Minister, a State organisation or any other person having a sufficient interest in relation to an organisation may apply to the Commission for any of the following declarations—

a declaration that the organisation or a part of the organisation, including—

a branch or part of a branch of the organisation, or

a collective body of the organisation or a branch of the organisation,

a declaration that a collective body of the organisation or one or more officers of the organisation are alleged to have engaged, or have engaged, in gross misconduct in relation to the carrying out of their functions or in relation to the organisation,

a declaration that an office or position in the organisation or a branch of the organisation is vacant and there is no effective means under the rules of the organisation or branch to fill the office or position.

Without limiting subsection (1), gross misconduct includes any conduct that may constitute a serious offence within the meaning of Division 6 of this Part.

Interim appointment of administrator If an application is made under this section, the Commission may, by order made no later than 3 months after the commencement of this section, appoint an administrator for the organisation the subject of the application if it is of the opinion that—

it is likely that the basis for a declaration under this section will be established by the application, and

it is in the interests of members of the organisation or in the interests of justice that an administrator be appointed pending the determination of the application.

If the Commission fails to make an order under subsection (3) in relation to the appointment of an administrator for the organisation within 28 days of an application for a declaration under subsection (1), the Minister may exercise the functions of the Commission under this section with respect to the appointment of an administrator if the Minister is of the opinion that—

it is likely that the basis for a declaration will be established by the application for the declaration or if a declaration has been made by the Commission, and

it is in the interests of the members of the organisation or in the interests of justice that an administrator be appointed pending the approval of a scheme under this section.

An administrator appointed under subsection (3) or (4) has, during the term of office of the administrator and to the exclusion of any other person, the function of the conduct and management of the affairs of the organisation or such of those functions as may be specified in the order.

An administrator appointed under subsection (3) or (4) holds office until the application under this section is determined or for such shorter term as the Commission may, by order, specify.

If an administrator is appointed under subsection (3) or (4), any office holders of the organisation are suspended from office for the term of the administration.

Order for scheme and administrator by Commission If the Commission makes a declaration under this section, the Commission may, by order, approve a scheme for the taking of action by the organisation, a collective body of the organisation or a branch of the organisation, or by an officer or officers of the organisation or a branch of the organisation—

for the reconstitution of the branch, the part of the branch or the collective body, or

to enable the organisation, branch, the part of the branch or the collective body to function effectively, or

for the filling of the office or position.

If an order is made under this section, the Commission may give any ancillary or consequential directions it considers appropriate.

Despite any other provision of this section, in any order made under this section the Commission may direct that specified officers are to remain as officers of the organisation or a branch of the organisation for the purposes of giving effect to any scheme or other action taken under this section or of enabling the organisation to function effectively.

Limits on order-making power The Commission must not make an order under this section unless the Commission is satisfied that the order would not do substantial injustice to the organisation or any member of the organisation.

The Commission must not approve a scheme involving provision for an election for an office unless the scheme provides for the election to be held by a direct voting system or a collegiate electoral system.

Notice of applications or orders The Commission may determine—

what notice is to be given to other persons of the intention to make an application or an order under this section, and

whether and how the notice should be given or served and whether it should be advertised in any newspaper.

Orders and directions to have effect despite rules of organisation An order or direction of the Commission under this section, and any action taken by an administrator or other person in accordance with the order or direction, has effect despite anything in the rules of the organisation or a branch of the organisation.