Section 363 — Fair Work Act 2009 (Cth)

(1) For the purposes of this Part, each of the following is taken to be action of an industrial association:

(a) action taken by the committee of management of the industrial association;

(b) action taken by an officer or agent of the industrial association acting in that capacity;

(c) action taken by a member, or group of members, of the industrial association if the action is authorised by:

(i) the rules of the industrial association; or

(ii) the committee of management of the industrial association; or

(iii) an officer or agent of the industrial association acting in that capacity;

(d) action taken by a member of the industrial association who performs the function of dealing with an employer on behalf of the member and other members of the industrial association, acting in that capacity;

(e) if the industrial association is an unincorporated industrial association that does not have a committee of management—action taken by a member, or group of members, of the industrial association.

(2) Paragraphs (1)(c) and (d) do not apply if:

(a) the committee of management of the industrial association; or

(b) a person authorised by the committee; or

(c) an officer of the industrial association;

has taken all reasonable steps to prevent the action.

(3) If, for the purposes of this Part, it is necessary to establish the state of mind of an industrial association in relation to particular action, it is enough to show:

(a) that the action was taken by a person, or a group, referred to in paragraphs (1)(a) to (e); and

(b) that the person, or a person in the group, had that state of mind.

(4) Subsections (1) to (3) have effect despite subsections 793(1) and (2) (which deal with liabilities of bodies corporate).

Related sections

• s 360 — Multiple reasons for action
• s 361 — Reason for action to be presumed unless proved otherwise
• s 362 — Advising, encouraging, inciting or coercing action
• s 364 — Unincorporated industrial associations
• s 365 — Application for the FWC to deal with a dismissal dispute
• s 366 — Time for application

Research how courts apply s 363

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