Document ID: chunk:federal_register_of_legislation:F2024C00766:reg:114e
Version: federal_register_of_legislation:F2024C00766
Segment Type: reg
Provision Reference: reg 114E
Character Range: 119642–121937

114E  Right to represent transferring employees—former State‑registered association subject to demarcation order—transitional recognition without demarcation order
 (1) For subsection 138A(1) of the Act, this regulation explains the way in which Chapter 4 of the Act applies in relation to an organisation if:
 (a) prior to being registered as an organisation:
 (i) it was a State‑registered association; and
 (ii) a State demarcation order was in force in relation to it; and
 (b) it became a transitionally recognised association; and
 (c) no demarcation order of a kind similar to the State demarcation order was made in relation to the right of the organisation to represent the industrial interests of transferring employees under the Act, or under the Fair Work Act:
 (i) while it was a transitionally recognised association; or
 (ii) under section 133 of the Act.
 (2) Chapter 4 applies in relation to the organisation as if the Chapter permitted the FWC to make an order that was of the same effect as the State demarcation order mentioned in subparagraph (1)(a)(ii), in relation to the right of the organisation to represent the industrial interests of transferring employees under the Act, or under the Fair Work Act.
 (3) In considering whether to make an order, the FWC:
 (a) must consider the wishes of transferring employees who would be affected by the order; and
 (b) may consider the following:
 (i) the terms of the State demarcation order;
 (ii) the effect of the order on the operation of the employer of the transferring employees;
 (iii) any agreement or understanding of which the FWC becomes aware that deals with the right of a transitionally recognised association or other organisation to represent the transferring employees;
 (iv) the consequences of not making the order for the employer, the employees, the transferring employees, the transitionally recognised association or any organisation affected by the order;
 (v) any other matter that the FWC considers relevant.
 (4) In considering whether to make an order, the FWC may disregard any requirement in Chapter 4 to have regard to:
 (a) the existence of a demarcation dispute; or
 (b) any matter relating to the existence of a demarcation dispute.
 (5) The order may be subject to conditions or limitations.