Fair Work Commission

Who can amalgamate?

Generally, two or more registered organisations can amalgamate under the provisions of the Fair Work (Registered Organisations) Act 2009 (the RO Act).

What does the amalgamation process involve?

The amalgamation process involves internal action by the management committees of the organisations concerned, an application to the Fair Work Commission and a vote of the affected members.

Once the organisations have resolved to amalgamate, an application must be lodged in the Commission. The application must contain:

• a joint application in writing
• resolutions of each Committee of Management in favour of amalgamation
• a scheme for amalgamation, and
• an outline of the scheme which contains sufficient information to allow members to make an informed decision.

The parties may also lodge:

• an application for exemption from a ballot which, if successful, would mean that only the members of the smaller organisation would participate in the vote
• an application for Community of Interest Declaration which, if successful, lowers the number of votes which have to be cast in favour of amalgamation before the amalgamation is approved, and
• Yes and No statements in relation to the amalgamation.

If the Commission approves the application, a ballot of affected members will be conducted by the Australian Electoral Commission. This will typically be a secret postal ballot and the ballot paper will be accompanied by the outline of the scheme of amalgamation and any Yes or No statements.

What happens if the members approve the amalgamation?

After consultation with the organisations, the Commission will fix an amalgamation day. On that day:

• all but one of the amalgamating organisations are de-registered
• the eligibility rules of the amalgamating organisations are merged
• any change of name of the amalgamated organisation takes effect
• any rule changes set out in the scheme of amalgamation take effect
• members of a de-registered organisations become members of the amalgamated organisation
• all assets and liabilities of a de-registered organisation become assets and liabilities of the amalgamated organisation, and
• all pending proceedings involving a de-registering organisation are deemed to instead involve the amalgamated organisation.

It is the responsibility of the amalgamated organisation to take such steps as are necessary to ensure that the amalgamation is fully effective. The Federal Court of Australia can resolve any difficulties which arise.

When can the registration of an organisation be cancelled?

An organisation’s registration under the RO Act can be cancelled in various circumstances. 

The Federal Court of Australia may cancel an organisation’s registration because:

• the organisation or a substantial number of its members have engaged in industrial action (other than protected industrial action)
• the organisation or a substantial number of its members continually have failed to comply with and observe a modern award, an order of the Commission or an enterprise agreement
• the organisation has failed to comply with an Federal Court order arising from an investigation concerned with its financial administration and financial reporting, or 
• the organisation has not conducted itself in accordance with the standards set out in the RO Act.

The Commission can cancel the registration of an organisation on application.

It can also do so because the organisation:

• was registered by mistake
• is no longer effectively representative of the members
• is not free from control or improper influence by another person or body
• is defunct, or
• has become smaller than the minimum size allowed by the RO Act.

Both the Federal Court of Australia and the Commission must give the organisation an opportunity to be heard before taking action to cancel its registration.

Consequences of the cancellation of an organisation's registration

If an organisation’s registration under the RO Act is cancelled:

• the organisation ceases to be an organisation and a body corporate under this Act, but does not cease to be an association
• the association and its members remain liable for any penalty or liability incurred before cancellation
• the association and its members are not entitled to the benefits of any modern award, order of the Commission or enterprise agreement that bound the organisation or its members, and
• after liabilities are satisfied, the property of the organisation becomes the property of the association.