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This is a Bill, not an Act. For current law, see the Acts databases.
Queensland
INDUSTRIAL RELATIONS
BILL 1999
Queensland
INDUSTRIAL RELATIONS BILL 1999
TABLE OF PROVISIONS
Section Page
CHAPTER 1--PRELIMINARY
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
3 Principal object of this Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
4 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
5 Who is an employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
6 Who is an employer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
7 What is an industrial matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
8 Provisions about appointments and procedures of committees . . . . . . . . . . 39
CHAPTER 2--GENERAL EMPLOYMENT CONDITIONS
PART 1--GENERAL
Division 1--Working time
9 Working time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Division 2--Sick leave
10 Entitlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Division 3--Annual leave
11 Entitlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
12 Taking annual leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
13 Payment for annual leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
14 Payment for annual leave on termination of employment . . . . . . . . . . . . . . 43
Division 4--Public holidays
15 Public holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
2
Industrial Relations
PART 2--FAMILY LEAVE
Division 1--Parental leave
16 Who this division does not apply to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
17 Definitions for pt 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
18 Entitlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
19 Notices and documents--maternity leave . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
20 Notices and documents--parental leave other than maternity or
adoption leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
21 Notices and documents--adoption leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
22 Reasons not to give notice or documents . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
23 Notice of change to situation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
24 Continuity of service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
25 Spouses not to take parental leave at same time . . . . . . . . . . . . . . . . . . . . . 51
26 Cancelling parental leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
27 Parental leave with other leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
28 Interruption of parental leave by return to work . . . . . . . . . . . . . . . . . . . . . . 52
29 Extending period of parental leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
30 Shortening period of parental leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
31 Effect on parental leave of ceasing to be the primary caregiver . . . . . . . . . 53
32 Return to work after parental leave etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
33 Employer's obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
34 Dismissal because of pregnancy or parental leave . . . . . . . . . . . . . . . . . . . . 55
35 Replacement employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
36 Transfer to a safe job . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
37 Special maternity leave and sick leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
38 Special adoption leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Division 2--Carer's leave
39 Entitlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Division 3--Bereavement leave
40 Entitlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
41 This part overrides less favourable conditions . . . . . . . . . . . . . . . . . . . . . . . . 58
3
Industrial Relations
PART 3--LONG SERVICE LEAVE
Division 1--Definitions for pt 3
42 Definitions for pt 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Division 2--Employees generally
43 Entitlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
44 Working out continuity of service for service before 23 June 1990 . . . . . . . 60
45 Taking long service leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
46 Payment for long service leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Division 3--Casual employees
47 Continuity of service--additional considerations for casual employees . . . 62
48 Taking long service leave--alternative provision for casual employees . . 63
49 Payment for long service leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Division 4--Seasonal employees
50 Entitlement--employees in sugar industry and meat works . . . . . . . . . . . . . 65
51 Taking long service leave--employees in sugar industry and
meat works . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
52 Other seasonal employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Division 5--Miscellaneous
53 Payment instead of long service leave on termination . . . . . . . . . . . . . . . . . 67
54 Payment instead of long service leave on death . . . . . . . . . . . . . . . . . . . . . . 67
55 Continuity not broken by service in Reserve Forces . . . . . . . . . . . . . . . . . . 68
56 Recognition of certain exemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
57 Person may be "employer" and "employee" . . . . . . . . . . . . . . . . . . . . . . . . 68
PART 4--REVIEW
58 Review of general employment conditions . . . . . . . . . . . . . . . . . . . . . . . . . . 68
PART 5--EQUAL REMUNERATION FOR WORK OF EQUAL
OR COMPARABLE VALUE
59 Definition for pt 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
60 Orders requiring equal remuneration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
61 Orders only on application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
62 When commission must and may only make order . . . . . . . . . . . . . . . . . . . 70
63 Immediate or progressive introduction of equal remuneration . . . . . . . . . . . 70
64 Employer not to reduce remuneration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
4
Industrial Relations
65 Part does not limit other rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
66 Applications under this part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
PART 6--CONTINUITY OF SERVICE AND EMPLOYMENT
67 Definition for pt 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
68 How part applies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
69 Continuity of service--transfer of calling . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
70 Continuity of service--apprentices or trainees . . . . . . . . . . . . . . . . . . . . . . . 72
71 Continuity of service--generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
CHAPTER 3--DISMISSALS
PART 1--EXCLUSIONS
72 Who this chapter does not apply to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
PART 2--UNFAIR DISMISSALS
73 When is a dismissal unfair . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
74 Application for reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
75 Conciliation before application heard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
76 Arbitration when conciliation unsuccessful . . . . . . . . . . . . . . . . . . . . . . . . . . 80
77 Matters to be considered in deciding an application . . . . . . . . . . . . . . . . . . 80
78 Remedies--reinstatement or re-employment . . . . . . . . . . . . . . . . . . . . . . . . 81
79 Remedies--compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
80 Sanctions for unfair dismissal--invalid reason . . . . . . . . . . . . . . . . . . . . . . . 82
81 Further orders if employer fails to reinstate . . . . . . . . . . . . . . . . . . . . . . . . . . 82
82 Effect of order on leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
PART 3--REQUIREMENTS FOR DISMISSAL
83 What employer must do to dismiss employee . . . . . . . . . . . . . . . . . . . . . . . . 83
84 Minimum period of notice required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
85 Minimum amount of compensation required . . . . . . . . . . . . . . . . . . . . . . . . . 85
PART 4--DISMISSAL OF 15 OR MORE EMPLOYEES
86 When this part applies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
87 Orders about severance allowances and other separation benefits . . . . . . . 85
88 Employer must give notice of proposed dismissals . . . . . . . . . . . . . . . . . . . . 86
89 Employer must consult with employee organisations about dismissals . . . 87
90 Time within which application under this part must be made . . . . . . . . . . . 88
5
Industrial Relations
PART 5--PROTECTION OF INJURED EMPLOYEES
91 Definitions for pt 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
92 Wages to be paid for the day employee injured . . . . . . . . . . . . . . . . . . . . . . 88
93 Dismissal of injured employees only after 6 months . . . . . . . . . . . . . . . . . . 89
94 Replacement for injured employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
95 Reinstatement of injured employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
96 Preservation of employee's rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
PART 6--STAND-DOWN OF EMPLOYEES
97 Employee stood-down in December then re-employed in January . . . . . . . 91
98 Permissible stand-down of employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
PART 7--GENERAL
99 Chapter does not limit other rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
100 Inconsistent instruments and orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
CHAPTER 4--FREEDOM OF ASSOCIATION
PART 1--PRELIMINARY
101 Main purposes of ch 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
102 Definitions for ch 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
103 Meaning of "industrial action" for ch 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
104 Meaning of "engaging in" conduct for a "prohibited reason" for ch 4 . . . . 94
PART 2--PROHIBITED CONDUCT
105 Prohibited conduct for employers and principals . . . . . . . . . . . . . . . . . . . . . 96
106 Prohibited conduct for employees and independent contractors . . . . . . . . . 97
107 Prohibited conduct for industrial associations . . . . . . . . . . . . . . . . . . . . . . . . 97
108 Certain actions by representative not prohibited conduct . . . . . . . . . . . . . . 97
109 Provision requiring or permitting prohibited conduct . . . . . . . . . . . . . . . . . . 98
110 Encouragement provisions permitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
PART 3--EXEMPTION FROM MEMBERSHIP
111 Who may apply for exemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
112 Procedure for hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
113 Deciding application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
114 How payment must be applied . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
115 Exemption certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
6
Industrial Relations
116 Expiry of exemption certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
PART 4--CIVIL REMEDIES
117 Who may apply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
118 Conciliation required before hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
119 Right to be heard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
120 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
121 Payment of penalty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
122 Evidence of prohibited conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
CHAPTER 5--AWARDS
PART 1--FORM AND APPLICATION
123 Form, effect and term of award . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
124 Persons bound by award . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
PART 2--COMMISSION'S POWERS
125 Making, amending and repealing awards . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
126 Content of awards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
127 Dispute resolution procedures in each award . . . . . . . . . . . . . . . . . . . . . . . . 106
128 Awards that fix wage rates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
129 Flow-on of certified agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
130 Review of awards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
131 Review of industrial instruments referred by the
Anti-Discrimination Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
PART 3--EXEMPTIONS
132 Exemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
PART 4--GENERAL
133 Enforceability of awards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
134 Effect of appeals on awards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
135 Inconsistency between awards and contracts . . . . . . . . . . . . . . . . . . . . . . . . 109
PART 5--WAGES AND EMPLOYMENT CONDITIONS FOR
APPRENTICES AND TRAINEES
136 Apprentice's and trainee's employment conditions . . . . . . . . . . . . . . . . . . . 109
137 Order setting minimum wages and conditions . . . . . . . . . . . . . . . . . . . . . . . . 110
138 Order setting tool allowance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
7
Industrial Relations
139 Termination of employment before apprenticeship or traineeship
cancelled or completed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
PART 6--LABOUR MARKET PROGRAMS
140 Orders for wages and employment conditions . . . . . . . . . . . . . . . . . . . . . . . . 112
CHAPTER 6--AGREEMENTS
PART 1--CERTIFIED AGREEMENTS
Division 1--Making agreements
141 Certified agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
142 Who may make certified agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
143 Proposed parties to be advised when agreement is proposed . . . . . . . . . . . . 115
144 What is to be done when an agreement is proposed . . . . . . . . . . . . . . . . . . . 116
145 Negotiations for project agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
146 Negotiations must be in good faith . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
147 Peace obligation period to assist negotiations . . . . . . . . . . . . . . . . . . . . . . . 118
148 Assistance in negotiating by conciliation . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
149 Arbitration if conciliation unsuccessful . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
150 Determinations made under s 149 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
151 Steps to be repeated if proposed agreement is amended . . . . . . . . . . . . . . . 122
152 Certificate as to requested representation . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
Division 2--Certifying agreements
153 Time for applying for certification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
154 Notice of hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
155 Right of employee organisation to be heard . . . . . . . . . . . . . . . . . . . . . . . . . 123
156 Certifying an agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
157 When commission to refuse to certify an agreement . . . . . . . . . . . . . . . . . . 126
158 Other options open to commission instead of refusing to certify
agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
159 Procedures for preventing and settling disputes . . . . . . . . . . . . . . . . . . . . . . 128
Division 3--No-disadvantage test
160 When an agreement passes the no-disadvantage test . . . . . . . . . . . . . . . . . . 129
161 Special case--employee eligible for supported wage system . . . . . . . . . . . 129
162 Special case--employee undertaking approved apprenticeship or
traineeship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
8
Industrial Relations
163 Deciding designated awards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
Division 4--Effect of certified agreements
164 When a certified agreement is in operation . . . . . . . . . . . . . . . . . . . . . . . . . 131
165 Certified agreement's effect on awards, agreements or orders . . . . . . . . . . 132
166 Persons bound . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
167 Successor employers bound . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
Division 5--Extending, amending or terminating certified
agreements
168 Extending a certified agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
169 Amending a certified agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
170 Amendment if discrimination between unionists and non-unionists . . . . . . 136
171 Other options open to commission instead of refusing to approve
amendment of agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
172 Terminating certified agreement on or before its nominal expiry date . . . . 137
173 Terminating agreement after its nominal expiry date . . . . . . . . . . . . . . . . . . 138
Division 6--Industrial action
174 Protected industrial action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
175 Notice of industrial action to be given . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
176 Secret ballot about taking industrial action . . . . . . . . . . . . . . . . . . . . . . . . . . 140
177 Industrial action must be properly authorised . . . . . . . . . . . . . . . . . . . . . . . . 141
178 No protection if certification application not timely . . . . . . . . . . . . . . . . . . 142
179 Employer not to dismiss employee for engaging in protected
industrial action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
180 Remedies if employee dismissed etc. for engaging in protected
industrial action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
181 When industrial action must not be taken . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
Division 7--Penalty provisions
182 Penalty provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
183 Penalties for contravening penalty provisions . . . . . . . . . . . . . . . . . . . . . . . . 145
Division 8--General
184 Secret ballot on valid majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
185 Coercion of persons to make, amend or terminate certified
agreements etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
186 Complementary laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
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PART 2--QUEENSLAND WORKPLACE AGREEMENTS
Division 1--Preliminary
187 Definitions for pt 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
188 Proposed QWAs and ancillary documents--interpretation . . . . . . . . . . . . . 150
189 Functions and powers of commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
Division 2--General rules about QWAs and ancillary documents
190 QWAs and ancillary documents only have effect as provided by
this part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
191 Collective QWAs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
Division 3--Making, amending or terminating a QWA
192 Employer and employee may make a QWA . . . . . . . . . . . . . . . . . . . . . . . . . 151
193 Matters to be included in QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
194 Nominal expiry date of QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
195 Period of operation of QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
196 Bargaining agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
197 Amending a QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
198 Terminating a QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
Division 4--Filing QWAs and ancillary documents
199 Filing QWAs and ancillary documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
200 Filing requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
201 Employer's declaration must be accurate . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
Division 5--Approving QWAs and ancillary documents
202 Additional approval requirements for QWA and ancillary documents . . . . 157
203 Approving QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
204 Approving amendment agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
205 Approving other ancillary documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
206 Commission must issue approval or refusal notice . . . . . . . . . . . . . . . . . . . . 161
207 Undertakings taken to be included in QWAs . . . . . . . . . . . . . . . . . . . . . . . . 162
208 Commission to issue copies of approved QWAs and ancillary
documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
Division 6--No-disadvantage test
209 When does a QWA pass the no-disadvantage test . . . . . . . . . . . . . . . . . . . . 162
210 Special case--employee eligible for supported wage system . . . . . . . . . . . 163
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211 Special case--employee undertaking approved apprenticeship or
traineeship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
212 Deciding designated awards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
Division 7--Effect of QWAs
213 QWA's effect on awards, certified agreements or orders . . . . . . . . . . . . . . . 165
214 Successor employers bound . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
215 Parties must not contravene QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
216 Conciliation for agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
217 Industrial action by party to QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
Division 8--Penalty provisions and remedies
218 Penalties for contravening this part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
219 Damages for contravention of QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
220 Compensation to new employee for shortfall in entitlements . . . . . . . . . . . 167
221 Injunctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
Division 9--General
222 Hindering QWA negotiations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
223 Persons must not apply duress or make false statements in
connection with QWA etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
224 Employer must give copy of documents to employee . . . . . . . . . . . . . . . . . 169
225 Intervention not permitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
226 Reports and advice about development in making QWAs . . . . . . . . . . . . . . 169
227 Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
228 Signature for corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
CHAPTER 7--INDUSTRIAL DISPUTES
PART 1--NOTICE OF INDUSTRIAL DISPUTE
229 Notice of industrial dispute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
PART 2--ACTION FOR SETTLING INDUSTRIAL DISPUTES
230 Action on industrial dispute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
231 Mediation by commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
232 Compulsory conference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
233 Enforcing commission's orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
234 Remedies on show cause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
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PART 3--BALLOTS
235 Secret ballot on strike action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
236 Effect of ballot adverse to strike . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
PART 4--INDUSTRIAL ACTION
237 Indemnity against agent's unauthorised actions . . . . . . . . . . . . . . . . . . . . . . 178
238 Payments for strikes can not be compelled . . . . . . . . . . . . . . . . . . . . . . . . . . 179
239 Orders the commission may make . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
240 Commission not to deal with claims for payments for strikes . . . . . . . . . . . 180
241 Right to refuse to work if imminent health or safety risk . . . . . . . . . . . . . . . 181
CHAPTER 8--INDUSTRIAL TRIBUNALS AND REGISTRY
PART 1--INDUSTRIAL COURT
Division 1--Industrial Court of Queensland
242 Continuance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
Division 2--President
243 President of the court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
244 When a judge is appointed as president . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
245 When president holds office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
246 Acting president of the court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
Division 3--Jurisdiction and powers of the court
247 Constitution of court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
248 Court's jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
249 Court's interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
250 Court may refuse to proceed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
251 Contempt of court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
Division 4--President's annual report
252 President's annual report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
Division 5--President's advisory committee
253 Advisory committee established . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
254 Functions of advisory committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
PART 2--INDUSTRIAL RELATIONS COMMISSION
Division 1--Continuance and composition
255 Continuance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
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256 Composition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
Division 2--Membership of the commission
257 President of the commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
258 Vice president of the commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
259 Commissioners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
260 When commissioner holds office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
261 Acting vice president, commissioner administrator or other
commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
262 Restrictions on appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
263 Removal of commissioners from office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
Division 3--The commission
264 Administrative responsibilities for the commission and registry . . . . . . . . . 191
265 Commission's jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
266 Commission to prevent discrimination in employment . . . . . . . . . . . . . . . . 193
267 Commission's jurisdiction is exclusive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
268 Commission may refuse to proceed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
269 President or commissioner administrator to consider efficiencies
that may be achieved by allocating matters to dual commissioners . . . . . . 193
270 Reallocation of commission's work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
271 Commission may continue to hear reallocated work without
re-hearing evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
272 Decision of full bench . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
Division 4--Commission's functions and powers
273 Commission's functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
274 General powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
275 Power to declare persons to be employees . . . . . . . . . . . . . . . . . . . . . . . . . . 196
276 Power to amend or void contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
277 Power to grant injunctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
278 Power to recover unpaid wages and superannuation contribution etc. . . . . 200
279 Orders about representation rights of employee organisations . . . . . . . . . . . 203
280 Procedures for reopening . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
281 Reference to full bench . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
282 Case stated to court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
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283 Power to enter and inspect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
284 Interpretation of industrial instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208
285 Conducting a secret ballot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
286 Other powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
287 General rulings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
288 Statement of policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212
PART 3--INDUSTRIAL MAGISTRATES
Division 1--Industrial Magistrates Court
289 Industrial Magistrates Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212
Division 2--Industrial magistrates
290 Office of Industrial Magistrate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
Division 3--Constitution and jurisdiction of Industrial Magistrates
Court
291 Constitution of Industrial Magistrates Court . . . . . . . . . . . . . . . . . . . . . . . . . 213
292 Magistrate's jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
293 Magistrates' jurisdiction is exclusive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214
PART 4--INDUSTRIAL REGISTRY
Division 1--Industrial registry
294 Industrial registry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215
295 Functions of the registry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215
296 Seal of the registry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215
Division 2--Industrial registrar and staff
297 Appointment of registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215
298 Termination of appointment of registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216
299 Functions and powers of registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216
300 Deputy registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
301 Delegation by registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
302 Acting registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
303 Staff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
304 Officers of the court and commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
PART 5--ARRANGEMENTS WITH OTHER AUTHORITIES
Division 1--Member may also be member of Australian commission
305 Member may hold other appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
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Division 2--Dual commissioners
306 Appointment of Commonwealth official as commissioner . . . . . . . . . . . . . . 218
307 Role of dual commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
Division 3--References to Commonwealth official
308 Reference of matter to Commonwealth official . . . . . . . . . . . . . . . . . . . . . . 219
Division 4--Conferences and joint sessions with industrial
authorities
309 Conferences with industrial authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220
310 Joint sessions with industrial authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220
311 Similar matters before full bench and industrial authority . . . . . . . . . . . . . . 221
312 Member's powers in joint session . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
313 President may decide matter not to be dealt with in joint session . . . . . . . 221
Division 5--Other functions etc. and arrangements
314 Functions and powers vested in commission by other jurisdictions . . . . . . 222
315 Arrangements with Commonwealth public service . . . . . . . . . . . . . . . . . . . . 222
PART 6--PROCEEDINGS OF COURT, COMMISSION,
MAGISTRATES AND REGISTRAR
Division 1--Definitions
316 Definitions for pt 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
Division 2--Starting proceedings and service of process
317 Starting proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
318 Service of process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
Division 3--Conduct of proceedings
319 Representation of parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
320 Basis of decisions of the commission and magistrates . . . . . . . . . . . . . . . . . 226
321 Competence and compellability of witnesses . . . . . . . . . . . . . . . . . . . . . . . . 227
322 Intervention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
323 Adjournment by registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
324 State employee to give information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
Division 4--Powers
325 Exercise of commission's powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
326 Interlocutory proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
327 Power to order inquiry or taking of evidence . . . . . . . . . . . . . . . . . . . . . . . . . 230
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328 Power to administer oath . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
329 Powers incidental to exercise of jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . 231
330 Power to obtain data and expert evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . 232
Division 5--Decisions and enforcement
331 Decisions generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233
332 Reserved decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233
333 Commission decisions to be in plain English . . . . . . . . . . . . . . . . . . . . . . . . 234
334 Extent of decisions and their execution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234
335 Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235
336 Recovery of amounts under orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235
Division 6--Protections and immunities
337 Protection and immunities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236
Division 7--Rules and practice
338 Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236
339 Directions about practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238
CHAPTER 9--APPEALS
Division 1--Appeals to Court of Appeal
340 Appeal from court or full bench . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238
Division 2--Appeals to court
341 Appeal from commission, magistrate or registrar . . . . . . . . . . . . . . . . . . . . . 239
Division 3--Appeals to full bench
342 Appeal from commission, magistrate or registrar . . . . . . . . . . . . . . . . . . . . . 240
Division 4--Appeals to commission
343 Appeal from registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
344 Appeal against stand-downs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
Division 5--General
345 Definition for div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
346 Time limited for appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
347 Stay of decision appealed against . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
348 Nature of appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
349 Finality of decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244
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CHAPTER 10--ENFORCEMENT
Division 1--Appointment
350 Appointment of inspectors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245
351 Functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245
352 Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246
Division 2--General powers
353 Entry to places . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246
354 General powers after entering workplaces . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
355 Power to require documents to be produced . . . . . . . . . . . . . . . . . . . . . . . . . 248
356 Power to require information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
357 Power to require name and address . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
Division 3--Powers to claim and deal with unpaid amounts
358 Paying employee's wages etc. to inspector . . . . . . . . . . . . . . . . . . . . . . . . . . 250
359 Inspector's obligation for amounts paid on demand . . . . . . . . . . . . . . . . . . . 251
Division 4--General
360 Obstructing inspectors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252
361 Impersonating inspectors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
362 Validity of inspector's conduct despite administrative contravention . . . . . 253
CHAPTER 11--RECORDS AND WAGES
PART 1--EMPLOYERS RECORDS
Division 1--Definitions
363 Definitions for pt 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
Division 2--Authorised industrial officers
364 Authorising industrial officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
365 Revocation and suspending industrial officer's authorisation . . . . . . . . . . . 255
Division 3--Employers to keep certain records
366 Time and wages record--industrial instrument employees . . . . . . . . . . . . . 255
367 Time and wages record--non-industrial instrument employees . . . . . . . . . . 257
368 Employee register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258
369 Records to be kept in English . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
370 Notation of wages details . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
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Division 4--Power to inspect certain records
371 Inspection of time and wages record--inspector . . . . . . . . . . . . . . . . . . . . . . 260
372 Right of entry--authorised industrial officer . . . . . . . . . . . . . . . . . . . . . . . . . 261
373 Right to inspect and request information--authorised industrial officer . . . 262
374 Inspection of employee register and index--registrar . . . . . . . . . . . . . . . . . . 264
375 Inspection of time and wages book--employees . . . . . . . . . . . . . . . . . . . . . 264
PART 2--WAGES AND OCCUPATIONAL SUPERANNUATION
Division 1--Interpretation
376 Definitions for pt 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265
377 References to service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266
Division 2--Protection for wages
378 Wages are first charge on amounts payable to employer . . . . . . . . . . . . . . . 266
379 Assignment of amount payable ineffectual against claims for wages . . . . . 266
380 Amounts paid or payable to employer to be applied in payment of
wages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267
381 Attachment notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268
382 Effect of attachment notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268
383 Orders for payment by prime contractor or clerk of the court . . . . . . . . . . . 269
384 Employees to be paid according to when attachment notices are served . . 270
385 Employee may sue prime contractor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271
386 Cessation of attachment not to prejudice prime contractor . . . . . . . . . . . . . 271
387 Discharge by employee for payment received . . . . . . . . . . . . . . . . . . . . . . . 272
388 Remedy of subcontractor's employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272
389 Prime contractor's right to reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . 272
390 Magistrate may hear claim for wages ex parte . . . . . . . . . . . . . . . . . . . . . . . 273
Division 3--Paying and recovering wages
391 Wages etc. to be paid without deduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273
392 Paying apprentices or trainees for course time . . . . . . . . . . . . . . . . . . . . . . . 274
393 Paying wages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275
394 Contract not to stipulate mode of spending wages . . . . . . . . . . . . . . . . . . . . 276
395 Payment of unpaid wages if employee's whereabouts unknown . . . . . . . . . 277
396 Overpaid wages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277
397 Deduction of wages in lieu of notice of termination . . . . . . . . . . . . . . . . . . . 278
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398 Minor may recover unpaid wages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278
399 Recovery of unpaid wages etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278
400 Enforcement of magistrate's order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280
Division 4--Wages in rural and mining industries
401 Wages recoverable against mortgagee if mortgagor defaults . . . . . . . . . . . 280
402 Distress warrant levied on property of mortgagor or mortgagee . . . . . . . . . . 282
403 Application of ss 401 and 402 to mines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282
404 Priority in payment of wages earned in mine . . . . . . . . . . . . . . . . . . . . . . . . 283
Division 5--Occupational superannuation
405 Agreement about superannuation fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284
406 Contributing occupational superannuation . . . . . . . . . . . . . . . . . . . . . . . . . . . 285
407 Power to order contribution to particular fund . . . . . . . . . . . . . . . . . . . . . . . . 285
408 Recovery of unpaid superannuation contribution . . . . . . . . . . . . . . . . . . . . . 286
CHAPTER 12--INDUSTRIAL ORGANISATIONS
PART 1--PRELIMINARY
409 Definitions for ch 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287
410 Meaning of "corporation" for ch 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290
411 Meaning of "counterpart federal body" for ch 12 . . . . . . . . . . . . . . . . . . . . . 291
412 Meaning of "office" for ch 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292
PART 2--REGISTRATION
Division 1--Registration applications
413 Application is to commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293
414 Who may apply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293
415 General requirements for applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293
416 Additional requirements for employee organisation application . . . . . . . . . 294
417 Additional requirements for employer organisation applications . . . . . . . . . 294
Division 2--Hearing of registration applications
418 Right to object . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295
419 Registration criteria for all applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295
420 Additional criteria for registration as employee organisation . . . . . . . . . . . 296
421 Additional criteria for registration as employer organisation . . . . . . . . . . . . 297
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Division 3--Grant of application
422 Grant of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297
423 Incorporation on registration if not already incorporated . . . . . . . . . . . . . . . 298
Division 4--Registered name and office
424 Registered name of organisation that is not a corporation . . . . . . . . . . . . . . 298
425 Registered office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299
Division 5--Miscellaneous
426 Registrar's functions for register and rules . . . . . . . . . . . . . . . . . . . . . . . . . . . 299
427 Change of callings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299
PART 3--GENERAL CONTENTS OF RULES
Division 1--Requirement to have rules
428 Organisation must have complying rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300
Division 2--General requirements for contents
429 Requirements for all organisations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300
430 Additional requirements for organisation that is not a corporation . . . . . . . 301
431 Rules must give conditions for loans, grants and donations . . . . . . . . . . . . . 302
Division 3--Permitted contents
432 Permitted contents--general . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303
433 Filling casual vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303
434 Mortality benefit fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303
Division 4--Restrictions on contents
435 General restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 304
436 Maximum office term for organisation that is not a corporation . . . . . . . . . 304
PART 4--ELECTION RULES
Division 1--Preliminary
437 Part does not apply to corporations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305
438 Meaning of "direct voting system" for pt 4 . . . . . . . . . . . . . . . . . . . . . . . . . . 305
439 Meaning of "collegiate electoral system" for pt 4 . . . . . . . . . . . . . . . . . . . . 305
Division 2--General requirements
440 General requirement of transparency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306
441 Rules must provide for elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306
442 Direct voting or collegiate electoral system must be used . . . . . . . . . . . . . 306
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Division 3--Direct voting systems
Subdivision 1--Preliminary
443 Application of div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306
Subdivision 2--Requirements for direct voting systems
444 General requirements for direct voting system . . . . . . . . . . . . . . . . . . . . . . . 306
445 Required contents--ballots . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307
446 Compulsory voting permitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308
Subdivision 3--Alternative types of secret ballot
447 Approval application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308
448 Consideration of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309
449 Grant of approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309
450 Cancellation of approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309
Division 4--Collegiate electoral systems
Subdivision 1--Preliminary
451 Application of div 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310
Subdivision 2--Requirements for collegiate electoral systems
452 Restriction on persons who may be elected by electoral college . . . . . . . . 310
453 Requirements for second or subsequent stage . . . . . . . . . . . . . . . . . . . . . . . . 310
Division 5--Model election rules
454 Model election rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311
455 Model election rules may be adopted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311
456 Adoption without change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311
457 Effect of adoption without change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311
458 Model rules apply if election rules do not comply with pt 4 . . . . . . . . . . . . 311
PART 5--VALIDITY AND COMPLIANCE WITH RULES
459 Powers of court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312
460 Who may apply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312
461 Financial help for application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312
462 Interim orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313
463 Hearing application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313
464 Effect of declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313
465 Direction must be complied with . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313
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PART 6--AMENDMENT OF RULES
Division 1--Amendments by commission or registrar
466 Breach of demarcation dispute undertaking . . . . . . . . . . . . . . . . . . . . . . . . . 314
467 When registrar may amend rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314
468 Amendment to cure noncompliance if rule declared void . . . . . . . . . . . . . . 315
469 How amendment must be made . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315
Division 2--Amendments by organisation
Subdivision 1--Name or eligibility rule amendments
470 Application of sdiv 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316
471 Requirements for amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316
472 Approval to change `union' to `organisation' in name . . . . . . . . . . . . . . . . . 316
473 Approval for other name amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316
474 Approval for eligibility rule amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317
475 When amendment takes effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318
476 Registrar must record amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318
Subdivision 2--Other rule amendments
477 Application of sdiv 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319
478 When amendment may be made . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319
479 When amendment takes effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319
PART 7--CONDUCT OF ELECTIONS
Division 1--Preliminary
480 Part does not apply to corporations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 320
Division 2--Preparatory steps
481 Organisation or branch must file prescribed election information . . . . . . . . 320
482 Registrar must arrange for elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 320
Division 3--Conduct of elections
483 Electoral commission to conduct elections . . . . . . . . . . . . . . . . . . . . . . . . . . 320
484 Organisation's rules generally to be complied with . . . . . . . . . . . . . . . . . . . 321
485 Action or directions by electoral officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321
486 Substitute electoral officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321
487 Death of candidate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321
488 Election result report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321
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489 Election costs to be paid by State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322
490 Ballot records must be preserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322
Division 4--Offences about conduct of elections
491 Using organisation's resources for election purposes . . . . . . . . . . . . . . . . . . 322
492 Obstructing conduct of election . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322
493 Failing to comply with electoral officer's direction . . . . . . . . . . . . . . . . . . . 322
494 Obstructing electoral officer's direction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323
495 Offences about ballots . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323
496 Disadvantaging candidates etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324
497 Unauthorised access to ballot paper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324
PART 8--ELECTION INQUIRIES
Division 1--Preliminary
498 Part does not apply to corporations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325
Division 2--Applications and referrals to commission
499 Commission may conduct election inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . 325
500 Who may apply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325
501 Requirements for application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325
502 Referral to commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 326
Division 3--Investigations and interim orders
503 Commission may authorise registrar to investigate . . . . . . . . . . . . . . . . . . . 326
504 Interim orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 327
505 Person acting under interim order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 328
506 When interim order ends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 328
Division 4--Conduct of election inquiries
507 Commission's functions and powers for inquiry . . . . . . . . . . . . . . . . . . . . . . 328
508 Orders if irregularity found . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329
509 Enforcing pt 8 orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329
Division 5--Offences about election inquiries
510 Disadvantaging applicant for inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 330
511 Obstructing orders being carried out . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 330
Division 6--Miscellaneous
512 Financial help for application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 330
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513 Costs of fresh election ordered by inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . 331
PART 9--OFFICERS
Division 1--Preliminary
514 Definitions for pt 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331
515 Meaning of "convicted person" for pt 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 332
Division 2--Disqualifications from candidature or holding office
Subdivision 1--Disqualifications
516 Persons under 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333
517 Convicted persons--candidature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333
518 Convicted persons--holding office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333
Subdivision 2--Applications for leave to hold office
519 Prospective candidates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334
520 Existing office holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334
521 Consideration of leave applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334
522 Disqualification period may be given if leave refused . . . . . . . . . . . . . . . . . 335
523 Leave or fixing of disqualification period does not affect div 2 . . . . . . . . . 335
Subdivision 3--Miscellaneous
524 Declaration about eligibility or ceasing to hold office . . . . . . . . . . . . . . . . . 335
525 Certificate evidence for div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336
Division 3--Officers' financial management duties
526 Application of div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336
527 Duty of honesty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336
528 Duty of reasonable care and diligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336
529 Officers with material personal interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . 337
530 Other duties not affected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 337
PART 10--MEMBERSHIP
Division 1--Eligibility and admission to membership
531 Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 338
532 Obligation to admit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 338
533 Obligation to give union card . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339
534 Members under 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339
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Division 2--Membership disputes
535 Court may decide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339
536 Deciding application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340
Division 3--Membership subscriptions
537 Obligation to give receipt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340
Division 4--Resignation
538 Division applies despite rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 341
539 Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 341
540 Resignation if membership subscription unpaid for 2 years . . . . . . . . . . . . . 341
Division 5--Liabilities of member to organisation
541 Meaning of "member's liability" for div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . 341
542 Recovering member's liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 342
543 Limit on liability after resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 342
PART 11--REGISTERS
544 Members and officers registers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343
545 Requirements for members register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343
546 Officers register--required particulars . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343
547 Annual obligation to file officers register . . . . . . . . . . . . . . . . . . . . . . . . . . . 344
548 Obligation to file officers register on change of office holder . . . . . . . . . . . 344
549 Inspection of registers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 344
550 Registrar's directions about registers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 344
PART 12--ACCOUNTS AND AUDIT
Division 1--Preliminary
551 Definitions for pt 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345
552 Meaning of "financial year" for pt 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345
553 Part applies to branches with separate financial affairs . . . . . . . . . . . . . . . . 346
Division 2--Accounting obligations
554 Obligation to keep accounting records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 346
555 Obligation to prepare accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 347
556 Member may apply for prescribed information . . . . . . . . . . . . . . . . . . . . . . . 347
557 Registrar's directions about accounts and accounting records . . . . . . . . . . . 348
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Division 3--Audits
558 Obligation to have auditor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348
559 How auditor may be removed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 349
560 Requirements for audit report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 349
561 Audit report must not be knowingly false or misleading . . . . . . . . . . . . . . . 350
562 Auditor must notify registrar of contravention . . . . . . . . . . . . . . . . . . . . . . . . 350
563 Auditor's powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350
564 Auditors have qualified privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351
Division 4--Presentation and filing of audit reports
565 Obligation to present to general or committee meeting . . . . . . . . . . . . . . . . 352
566 Obligation to publish audit report and accounts . . . . . . . . . . . . . . . . . . . . . . 352
567 Notice of meetings to auditor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 352
568 Auditor may attend meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 353
569 False or misleading statements about reports . . . . . . . . . . . . . . . . . . . . . . . . 353
570 Report and accounts must be filed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 354
Division 5--Registrar's investigations and audits
571 Registrar's investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 354
572 Registrar's directions for investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355
573 Notice of contravention to organisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355
574 Court may order compliance with notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355
575 Registrar's examinations and audits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 356
576 Powers of registrar's auditor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 356
577 Costs of examination and audit by registrar's auditor . . . . . . . . . . . . . . . . . . 356
Division 6--Loans, grants and donations
578 Obligation to file details of loans, grants and donations . . . . . . . . . . . . . . . 357
579 Member may inspect statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 357
PART 13--EXEMPTIONS
Division 1--Exemptions for organisations with counterpart federal
bodies
Subdivision 1--Exemption from holding election
580 Exemption if federal election held . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 358
581 Obligation to notify change in federal election result . . . . . . . . . . . . . . . . . 359
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Subdivision 2--Exemption from keeping members or officers register
582 Exemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 359
583 Effect of exemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 360
584 Obligation to file copy of federal officers register . . . . . . . . . . . . . . . . . . . . 360
585 Obligation to give notice of change or contravention . . . . . . . . . . . . . . . . . . 361
Subdivision 3--Exemption from accounting or audit provisions
586 Who may apply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 361
587 Grant of exemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 362
588 Obligation to file copies of federal audit documents . . . . . . . . . . . . . . . . . . 363
589 Obligation to give notice of change or contravention . . . . . . . . . . . . . . . . . . 363
Division 2--Exemption from accounting or audit obligations for
employer organisations that are corporations
590 Who may apply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364
591 Grant of exemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364
592 Obligation to file copies of reports under other Act or law . . . . . . . . . . . . . 364
593 Obligation to notify registrar of contravention of other law . . . . . . . . . . . . . 365
Division 3--Exemptions from requirement that electoral commission
conduct election
Subdivision 1--Grant of exemption
594 Who may apply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366
595 Requirements for application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366
596 Publication of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366
597 Hearing application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367
Subdivision 2--Obligations if exemption granted
598 Application of sdiv 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367
599 Obligation to appoint returning officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367
600 Election result report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 368
601 Ballot records must be preserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 368
Division 4--Cancellation of exemptions
602 Cancellation grounds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369
603 Alternatives to cancellation for federal election exemption . . . . . . . . . . . . 370
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PART 14--VALIDATIONS
Division 1--Preliminary
604 Definitions for pt 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 370
Division 2--Validations
605 Limitation on validations if substantial injustice . . . . . . . . . . . . . . . . . . . . . 370
606 Validation of certain acts done in good faith . . . . . . . . . . . . . . . . . . . . . . . . 371
607 Certain acts by person purporting to act in an office . . . . . . . . . . . . . . . . . . 372
608 Election not invalid because of compliance with order . . . . . . . . . . . . . . . . 372
609 Election not invalid because of contravention of pt 13, div 3, sdiv 2 . . . . . 372
610 Validation of certain events after 4 years . . . . . . . . . . . . . . . . . . . . . . . . . . . 373
611 Counterpart federal body not a ground for challenge . . . . . . . . . . . . . . . . . . 373
612 Amalgamations and withdrawals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 374
Division 3--Orders about invalidity or its effects
613 Commission may decide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 375
614 Who may apply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 375
615 Orders about effects of invalidity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 375
PART 15--AMALGAMATIONS AND WITHDRAWALS
Division 1--Preliminary
616 Definitions for pt 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376
Division 2--Amalgamations
617 Amalgamation permitted only under div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 377
618 Commission to approve proposed amalgamation . . . . . . . . . . . . . . . . . . . . . 377
619 Additional regulation-making powers for amalgamations . . . . . . . . . . . . . . 377
620 Effect of amalgamation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378
621 Holding office after amalgamation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379
Division 3--Withdrawing from amalgamation
622 Requirements for withdrawal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380
623 Commission to approve proposed withdrawal . . . . . . . . . . . . . . . . . . . . . . . . 380
624 Additional regulation-making powers for withdrawals . . . . . . . . . . . . . . . . . 380
625 Registration of constituent part on withdrawal . . . . . . . . . . . . . . . . . . . . . . . 381
626 Members of constituent part may join newly registered organisation . . . . . 381
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Division 4--Offences about amalgamation or withdrawal ballots
627 Obstructing conduct of ballot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 381
628 Offences about ballots . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 382
629 Disadvantaging another to induce vote or omission to vote . . . . . . . . . . . . . 382
630 Unauthorised access to ballot paper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 383
Division 5--Miscellaneous
631 Using resources for proposed amalgamation . . . . . . . . . . . . . . . . . . . . . . . . . 383
632 Costs of ballot conducted by electoral commission . . . . . . . . . . . . . . . . . . . 383
633 No action for defamation in certain cases . . . . . . . . . . . . . . . . . . . . . . . . . . . 384
634 Commission may resolve difficulties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 384
635 Registration of property transferred under pt 15 . . . . . . . . . . . . . . . . . . . . . . 384
636 Part applies despite laws or instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 386
PART 16--DEREGISTRATION
Division 1--Preliminary
637 Definitions for pt 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 386
Division 2--General deregistration provisions
Subdivision 1--Bringing deregistration proceedings
638 General deregistration grounds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 387
639 Who may bring deregistration proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . 388
Subdivision 2--Deciding deregistration proceedings
640 Hearing on ground other than industrial conduct . . . . . . . . . . . . . . . . . . . . . . 389
641 Hearing on industrial conduct ground . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 389
642 Deferral of deregistration for industrial conduct . . . . . . . . . . . . . . . . . . . . . . 390
643 When deferral order ends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391
644 Incidental orders or directions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391
Division 3--Small organisations
645 Commission may review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391
646 Deregistration proceedings by commission . . . . . . . . . . . . . . . . . . . . . . . . . . 391
647 Deciding proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 392
Division 4--Effects of deregistration
648 Application and purpose of div 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 392
649 When deregistration takes effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 392
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650 Effect on corporate status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 392
651 No release of liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 393
652 Effect on property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 393
653 Effect on certain instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 394
PART 17--MISCELLANEOUS
654 Hearing to be given before making decision . . . . . . . . . . . . . . . . . . . . . . . . . 394
655 Notice of registrar's decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 395
656 Falsely obtaining organisation's property . . . . . . . . . . . . . . . . . . . . . . . . . . . 396
657 Wrongfully applying organisation's property . . . . . . . . . . . . . . . . . . . . . . . . . 396
658 Stamp duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 396
CHAPTER 13--OFFENCES
659 Disobeying penalty orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 397
660 Improper conduct towards member, magistrate or registrar . . . . . . . . . . . . . 397
661 Contempt by witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 398
662 False or misleading statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 398
663 False or misleading documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 399
664 Obstructing officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 400
665 Avoiding Act's obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 400
666 Non-payment of wages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401
667 Accepting reduced wages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 402
668 Publishing statement about employment on reduced wages . . . . . . . . . . . . 402
669 Offence to offer or accept premiums . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 403
670 Contraventions of industrial instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 404
671 Injunction restraining contraventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 405
672 Persons considered parties to offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406
673 Executive officers must ensure corporation complies with ss 368,
406 and 666 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406
674 Attempt to commit offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 407
675 References to making false or misleading statements . . . . . . . . . . . . . . . . . 407
676 References to engaging in conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 407
CHAPTER 14--LEGAL PROCEEDINGS
677 General application of jurisdictional provisions . . . . . . . . . . . . . . . . . . . . . . 407
678 Evidentiary provisions affecting proceedings . . . . . . . . . . . . . . . . . . . . . . . . 408
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679 Confidential material tendered in evidence . . . . . . . . . . . . . . . . . . . . . . . . . 408
680 Evidentiary value of official records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 410
681 Proof of certain facts by statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 411
682 Evidentiary value of certificate of trustee of superannuation fund . . . . . . . 411
683 Offence proceedings generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 412
684 Organisations may start proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 413
685 Recovering amounts from organisations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 413
CHAPTER 15--EMPLOYEES IN EMPLOYMENT OF STATE
686 Application of Act to State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 414
687 Conflict between industrial instruments etc. and statutory decision . . . . . . 414
688 Protection of public property and officers . . . . . . . . . . . . . . . . . . . . . . . . . . . 415
689 Ambit of reference to State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 416
690 Representation of public sector units . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 416
691 Industrial cause affecting diverse employees . . . . . . . . . . . . . . . . . . . . . . . . 416
CHAPTER 16--INDUSTRIAL RELATIONS ADVISORY
COMMITTEE
692 Committee established . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 417
693 Functions of committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418
CHAPTER 17--GENERAL
694 Employees working in and outside State . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418
695 Student's work permit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 419
696 Aged or infirm persons permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 419
697 Copy of award and certified agreement to be displayed . . . . . . . . . . . . . . . 420
698 Incorporating amendments in awards, certified agreements or orders . . . . . 420
699 Obsolete industrial instrument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 420
700 Certificate of employment on termination . . . . . . . . . . . . . . . . . . . . . . . . . . . 421
701 False pretences relating to employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 421
702 Protection from liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 422
703 Payments to financially distressed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 423
704 Notices and applications to be written . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 424
705 Inaccurate descriptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 424
706 Confidentiality of information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 424
707 Application of Act generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 424
31
Industrial Relations
708 Approved forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 425
709 Regulation-making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 425
CHAPTER 18--SAVINGS AND REPEALS
710 Savings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 426
711 Regulation and rules to continue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 427
712 Repeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 427
CHAPTER 19--SAVING AND TRANSITIONAL PROVISIONS
FOR INDUSTRIAL RELATIONS ACT 1999
PART 1--EXISTING INDUSTRIAL AGREEMENTS
713 Existing industrial agreement continues . . . . . . . . . . . . . . . . . . . . . . . . . . . . 428
714 Industrial agreement displaced by QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 429
PART 2--EXISTING CERTIFIED AGREEMENTS
715 New termination provisions for existing certified agreements . . . . . . . . . . . 429
716 EFAs that prevail over certified agreements . . . . . . . . . . . . . . . . . . . . . . . . . 429
717 Certified agreements that prevail over EFAs . . . . . . . . . . . . . . . . . . . . . . . . 430
PART 3--EXISTING EFAS
718 Existing EFA continues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 430
719 EFA displaced by QWA and determination . . . . . . . . . . . . . . . . . . . . . . . . . 430
PART 4--UNLAWFUL DISMISSALS
720 Dismissals before commencement of this section . . . . . . . . . . . . . . . . . . . . 431
PART 5--REPRESENTATION RIGHTS OF EMPLOYEE
ORGANISATIONS
721 Applications under the repealed Act, s 293 . . . . . . . . . . . . . . . . . . . . . . . . . . 431
PART 6--REFERENCES AND APPOINTMENTS
722 References to repealed Act or IO Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 432
723 Appointments continue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 432
PART 7--VETE ORDERS AND DETERMINATIONS
724 Proceedings commenced under the Vocational Education,
Training and Employment Act 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 432
725 Orders and determinations under the Vocational Education,
Training and Employment Act 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 433
PART 8--ORGANISATIONS
726 Organisations with dual corporate status . . . . . . . . . . . . . . . . . . . . . . . . . . . . 434
727 Continued registration of organisations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 435
32
Industrial Relations
728 Applications for exemption from membership of an organisation . . . . . . . . 435
729 Amalgamations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 435
730 Withdrawals from amalgamation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 436
731 Election and ballot expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 436
732 Political objects funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 436
CHAPTER 20--AMENDMENT OF PUBLIC SERVICE ACT 1996
733 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 437
734 Amendment of s 22 (Application of Act to certain public sector
units etc.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 437
735 Amendment of s 33 (Functions of commissioner) . . . . . . . . . . . . . . . . . . . . 437
737 Amendment of s 69 (Basis of employment--tenure or contract) . . . . . . . . 439
738 Amendment of s 70 (Basis of employment for contract employment) . . . . 440
739 Amendment of s 81 (Action because of surplus) . . . . . . . . . . . . . . . . . . . . . 440
740 Amendment of s 85 (Mental or physical incapacity) . . . . . . . . . . . . . . . . . . 440
741 Amendment of s 114 (Application of Act to general and
temporary employees) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 440
742 Replacement of s 117 (Inconsistency between directives and
industrial agreements) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 441
117 Relationship between directives and awards etc. . . . . . . . . . . . . . . . 441
743 Amendment of s 118 (Regulation-making power) . . . . . . . . . . . . . . . . . . . . 441
744 Amendment of s 136 (Existing regulations) . . . . . . . . . . . . . . . . . . . . . . . . . 441
745 Amendment of sch 1 (Public service offices and their heads) . . . . . . . . . . 442
746 Amendment of sch 3 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 442
CHAPTER 21--CONSEQUENTIAL AMENDMENTS
747 Consequential amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 442
SCHEDULE 1 . . . . . . . . . . . . . . . . . . . . . . . . 443
INDUSTRIAL MATTERS
SCHEDULE 2 . . . . . . . . . . . . . . . . . . . . . . . . 446
APPOINTMENTS AND PROCEDURES
PART 1--PRESIDENT, VICE PRESIDENT, COMMISSIONER
ADMINISTRATOR AND COMMISSIONERS
1 Remuneration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 446
2 Benefits--Judges (Pensions and Long Leave) Act . . . . . . . . . . . . . . . . . . . . 447
3 Benefits--Superannuation (State Public Sector) Act 1990 . . . . . . . . . . . . . 447
33
Industrial Relations
4 Leave of absence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 448
PART 2--REGISTRAR
5 Preservation of registrar's rights if a public service officer . . . . . . . . . . . . . 449
6 Leave of absence of registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 450
7 Resignation of registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 450
PART 3--INSPECTORS
8 Appointment conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 450
9 Limitation on powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 450
10 Identity cards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 451
PART 4--PRESIDENT'S ADVISORY COMMITTEE
11 Definitions for pt 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 451
12 Term of office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 452
13 Remuneration of appointed members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 452
14 Meetings of president's advisory committee . . . . . . . . . . . . . . . . . . . . . . . . . 452
PART 5--INDUSTRIAL RELATIONS ADVISORY COMMITTEE
15 Definitions for pt 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 452
16 Term of office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 452
17 Deputies of members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 453
18 Remuneration of appointed members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 453
19 Conduct of committee meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 453
SCHEDULE 3 . . . . . . . . . . . . . . . . . . . . . . . . 455
CONSEQUENTIAL AMENDMENTS
ACTS INTERPRETATION ACT 1954 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 455
AMBULANCE SERVICE ACT 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 455
ANTI-DISCRIMINATION ACT 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 456
ASSOCIATIONS INCORPORATION ACT 1981 . . . . . . . . . . . . . . . . . . . . . 457
BRISBANE TRADES HALL MANAGEMENT ACT 1984 . . . . . . . . . . . . . 458
BUILDING AND CONSTRUCTION INDUSTRY (PORTABLE
LONG SERVICE LEAVE) ACT 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 458
CORRECTIVE SERVICES (ADMINISTRATION) ACT 1988 . . . . . . . . . . 459
CRIMINAL JUSTICE ACT 1989 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 460
EDUCATION (WORK EXPERIENCE) ACT 1996 . . . . . . . . . . . . . . . . . . . 460
ELECTORAL ACT 1992 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 460
34
Industrial Relations
ELECTRICITY ACT 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 461
EQUAL OPPORTUNITY IN PUBLIC EMPLOYMENT ACT 1992 . . . . . . 461
FUNERAL BENEFIT BUSINESS ACT 1982 . . . . . . . . . . . . . . . . . . . . . . . . 461
HEALTH RIGHTS COMMISSION ACT 1991 . . . . . . . . . . . . . . . . . . . . . . . 462
HEALTH SERVICES ACT 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 462
INDUSTRIAL RELATIONS (PROTECTION FROM
INVALIDITIES) ACT 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 462
JUDGES (SALARIES AND ALLOWANCES) ACT 1967 . . . . . . . . . . . . . 463
LIQUID FUEL SUPPLY ACT 1984 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 464
LOCAL GOVERNMENT ACT 1993 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 464
PARLIAMENTARY SERVICE ACT 1988 . . . . . . . . . . . . . . . . . . . . . . . . . . 464
PASTORAL WORKERS' ACCOMMODATION ACT 1980 . . . . . . . . . . . . 465
POLICE SERVICE ADMINISTRATION ACT 1990 . . . . . . . . . . . . . . . . . . 466
PRIVATE EMPLOYMENT AGENCIES ACT 1983 . . . . . . . . . . . . . . . . . . . 466
PUBLIC SERVICE ACT 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 467
QUEENSLAND TOURIST AND TRAVEL CORPORATION ACT 1979 . . 468
RACING AND BETTING ACT 1980 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 468
RETIREMENT VILLAGES ACT 1988 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 469
SUPERANNUATION (STATE PUBLIC SECTOR) ACT 1990 . . . . . . . . . 469
TRADING (ALLOWABLE HOURS) ACT 1990 . . . . . . . . . . . . . . . . . . . . . 469
VOCATIONAL EDUCATION, TRAINING AND EMPLOYMENT
ACT 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 471
WHISTLEBLOWERS PROTECTION ACT 1994 . . . . . . . . . . . . . . . . . . . . 477
WORKCOVER QUEENSLAND ACT 1996 . . . . . . . . . . . . . . . . . . . . . . . . . 478
WORKPLACE HEALTH AND SAFETY ACT 1995 . . . . . . . . . . . . . . . . . . 478
SCHEDULE 4 . . . . . . . . . . . . . . . . . . . . . . . . 479
AMENDMENT OF MODEL ELECTION RULES
SCHEDULE 5 . . . . . . . . . . . . . . . . . . . . . . . . 482
DICTIONARY
1999
A BILL
FOR
An Act relating to industrial relations in Queensland, and for other
purposes
s1 36 s3
Industrial Relations
The Parliament of Queensland enacts-- 1
CHAPTER 1--PRELIMINARY 2
title 3
Short
1. This Act may be cited as the Industrial Relations Act 1999. 4
5
Commencement
2.(1) Section 744 commences, or is taken to have commenced, on 6
1 July 1999. 7
(2) The remaining provisions of this Act commences on a day to be fixed 8
by proclamation. 9
object of this Act 10
Principal
3. The principal object of this Act is to provide a framework for industrial 11
relations that supports economic prosperity and social justice by-- 12
(a) providing for rights and responsibilities that ensure economic 13
advancement and social justice for all employees and employers; 14
and 15
(b) providing for an effective and efficient economy, with strong 16
economic growth, high employment, employment security, 17
improved living standards, low inflation and national and 18
international competitiveness; and 19
(c) preventing and eliminating discrimination in employment, and 20
ensuring equal remuneration for men and women; and 21
(d) helping balance work and family life; and 22
(e) promoting the effective and efficient operation of enterprises and 23
industries; and 24
(f) ensuring wages and employment conditions provide fair 25
standards in relation to living standards prevailing in the 26
s4 37 s5
Industrial Relations
community; and 1
(g) promoting participation in industrial relations by employees and 2
employers; and 3
(h) encouraging responsible representation of employees and 4
employers by democratically run organisations and associations; 5
and 6
(i) promoting and facilitating the regulation of employment by 7
awards and agreements; and 8
(j) meeting the needs of emerging labour markets and work patterns; 9
and 10
(k) promoting and facilitating jobs growth, skills acquisition and 11
vocational training through apprenticeships, traineeships and 12
labour market programs; and 13
(l) providing for effective, responsive and accessible support for 14
negotiations and resolution of industrial disputes; and 15
(m) assisting in giving effect to Australia's international obligations in 16
relation to labour standards. 17
18
Definitions
4. The dictionary in schedule 5 defines particular words used in this Act. 19
is an employee 20
Who
5.(1) An "employee" is-- 21
(a) a person employed in a calling on wages or piecework rates; or 22
(b) a person whose usual occupation is that of an employee in a 23
calling; or 24
(c) a person employed in a calling, even though-- 25
(i) the person is working under a contract for labour only, or 26
substantially for labour only; or 27
(ii) the person is a lessee of tools or other implements of 28
production, or of a vehicle used to deliver goods; or 29
s6 38 s6
Industrial Relations
(iii) the person owns, wholly or partly, a vehicle used to transport 1
goods or passengers; or 2
(d) a person who is a member of a class of persons declared to be 3
employees under section 275;1 or 4
(e) each person, being 1 of 4 or more persons who are, or claim to 5
be, partners working in association in a calling or business; or 6
(f) for proceedings for payment or recovery of amounts--a former 7
employee; or 8
(g) an outworker; or 9
(h) an apprentice or trainee. 10
(2) A person who is undertaking an industry placement within the 11
meaning of the Vocational Education and Training (Industry Placement) 12
Act 1992 is not an employee. 13
is an employer 14
Who
6.(1) An "employer" is-- 15
(a) a person employing, or who usually employs, 1 or more 16
employees, for the person or someone else; or 17
(b) for employees employed in a department of government--the 18
chief executive of that department. 19
(2) The following persons are also employers-- 20
(a) a person carrying on a calling in which employees are usually 21
employed, even though for the time being employees are not 22
employed in it; 23
(b) a person who is managing director, manager, secretary or 24
member of the managing body (however called) of a corporation, 25
partnership, firm or association of persons; 26
(c) if 4 or more persons are, or claim to be, partners working in 27
association in a calling or business--the partnership firm 28
constituted, or claimed to be constituted, by the persons; 29
1 Section 275 (Power to declare persons to be employees)
s7 39 s8
Industrial Relations
(d) a group training scheme or labour hire agency that arranges for an 1
employee (who is a party to a contract of service with the scheme 2
or agency) to do work for someone else, even though the 3
employee is working for the other person under an arrangement 4
between the scheme or agency and the other person; 5
(e) for proceedings for payment or recovery of amounts--a former 6
employer. 7
(3) In this section-- 8
"labour hire agency" means an entity that conducts a business that 9
includes the supply of services of employees to others. 10
is an industrial matter 11
What
7.(1) An "industrial matter" is a matter that affects or relates to-- 12
(a) work done or to be done; or 13
(b) the privileges, rights or functions of-- 14
(i) employers or employees; or 15
(ii) persons who have been, or propose to be, or who may 16
become, employers or employees; or 17
(c) a matter (whether or not an industrial matter as defined in this 18
section) that the court or commission considers has been, is, or 19
may be a cause or contributory cause of an industrial action or 20
industrial dispute. 21
(2) However, a matter is not an industrial matter if it is the subject of 22
proceedings for an indictable offence. 23
(3) Without limiting subsection (1) or affecting subsection (2), a matter is 24
an industrial matter if it relates to a matter mentioned in schedule 1. 25
about appointments and procedures of committees 26
Provisions
8. Schedule 2 contains provisions about-- 27
(a) the president and commissioners; and 28
(b) the registrar; and 29
s9 40 s9
Industrial Relations
(c) inspectors; and 1
(d) the members, and procedure, of-- 2
(i) the president's advisory committee; and 3
(ii) the industrial relations advisory committee. 4
HAPTER 2--GENERAL EMPLOYMENT 5
C
CONDITIONS 6
ART 1--GENERAL 7
P
Division 1--Working time 8
time 9
Working
9.(1) This section applies to an employee under an industrial instrument. 10
(2) The periods for which an employee is required to work must not 11
exceed-- 12
(a) 6 days in any 7 consecutive days; or 13
(b) 40 hours in any 6 consecutive days; or 14
(c) 8 hours in any day. 15
(3) An employee must be paid overtime at the rate of at least-- 16
(a) for a calling in which more than 1 shift is worked in a 17
day--double time; and 18
(b) for another calling--time and a half. 19
(4) If an employee is paid at a higher rate than the minimum rate 20
prescribed in the industrial instrument, the overtime rate must be worked 21
out on the higher rate. 22
(5) If practicable, an employee is entitled to a rest pause of at least 23
10 minutes in each 4 hours of working time on a day. 24
s 10 41 s 10
Industrial Relations
(6) The rest pause-- 1
(a) is part of the employee's working time; and 2
(b) if continuity of work is necessary--must be taken when it does 3
not interfere with continuity. 4
(7) This section does not apply if an industrial instrument provides 5
otherwise. 6
(8) In this section-- 7
"overtime" means time worked-- 8
(a) outside any of the periods mentioned in subsection (2); or 9
(b) before or after the fixed or recognised times of starting or 10
finishing work on a day in a calling. 11
Division 2--Sick leave 12
13
Entitlement
10.(1) This section does not apply to casual employees or pieceworkers. 14
(2) An employee is entitled to-- 15
(a) at least 8 days sick leave on full pay for each completed year of 16
employment with an employer; and 17
(b) for each completed period of employment of less than a year--at 18
least 1 day's sick leave on full pay for each completed 6 weeks of 19
employment with an employer. 20
(3) However, the employee's entitlement is conditional on-- 21
(a) the employee promptly notifying the employer of-- 22
(i) any illness that will cause the employee to be absent from 23
work; and 24
(ii) the approximate period for which the employee will be 25
absent; and 26
(b) if the employee is absent for more than 2 days-- 27
(i) the employee giving the employer a doctor's certificate about 28
s 11 42 s 11
Industrial Relations
the nature of the illness and the approximate period for 1
which the employee will be absent; or 2
(ii) the employee giving the employer other evidence of the 3
illness to the employer's satisfaction. 4
(4) Subsection (3) does not apply if-- 5
(a) an industrial instrument provides otherwise; or 6
(b) the employee and employer agree otherwise. 7
(5) For a person who did not have an entitlement to sick leave before the 8
commencement of this section, this section does not confer an entitlement in 9
relation to employment before the commencement. 10
3--Annual leave 11
Division
12
Entitlement
11.(1) This section does not apply to casual employees or pieceworkers. 13
(2) For each completed year of employment with an employer, an 14
employee is entitled to-- 15
(a) if the employee is not a shift worker--at least 4 weeks annual 16
leave; or 17
(b) if the employee is a shift worker--at least 5 weeks annual leave. 18
(3) Annual leave is exclusive of a public holiday that falls during the 19
leave. 20
(4) In working out a completed year of employment, the following 21
periods when an employee is absent without pay are not to be taken into 22
account-- 23
(a) a period of more than 3 months when an employee is absent with 24
the employer's approval; 25
(b) a period when an employee is absent without the employer's 26
approval, unless the employee is absent for not more than 27
3 months because of illness or injury certified to by a doctor. 28
(5) In this section-- 29
s 12 43 s 14
Industrial Relations
"shift worker" means an employee who-- 1
(a) is employed in a calling in which shifts are worked 24 hours a 2
day, 7 days a week; and 3
(b) works a rotating roster that includes each of the shifts. 4
annual leave 5
Taking
12.(1) An employee and employer may agree when the employee is to 6
take annual leave. 7
(2) If the employee and employer can not agree, the employer-- 8
(a) may decide when the employee is to take leave; and 9
(b) must give the employee at least 14 days written notice of the 10
starting date of the leave. 11
(3) An employee and employer may agree that the employee take all or 12
any part of the employee's annual leave before becoming entitled to it. 13
(4) If the employee takes leave before becoming entitled to it, the 14
employee is only entitled, at the end of the completed year of employment, 15
to the balance of the leave that would be due at the end of the year. 16
for annual leave 17
Payment
13.(1) Unless an employee and employer otherwise agree, the employer 18
must pay the employee for annual leave in advance. 19
(2) The employer must pay for the leave-- 20
(a) at the ordinary rate being paid to the employee immediately before 21
the leave is taken; or 22
(b) if, immediately before taking the leave, the employee is being paid 23
at a higher rate than the ordinary rate--at the higher rate. 24
for annual leave on termination of employment 25
Payment
14.(1) This section applies if an employee's employment is terminated 26
by the employee or employer. 27
(2) If the employee has not taken all the annual leave the employee is 28
s 15 44 s 15
Industrial Relations
entitled to, the employee is presumed to have taken the leave from the day 1
the termination takes effect (the "termination day"). 2
(3) The employer must immediately pay the employee for the annual 3
leave not taken, including any public holiday that falls in the period the 4
employee is presumed to have taken the leave. 5
(4) If the employee has been employed for any period of less than 1 year, 6
the employer must pay the employee proportionate annual leave for the 7
period. 8
(5) The employer must pay the employee at least the ordinary rate being 9
paid to the employee immediately before the termination day, unless an 10
industrial instrument states otherwise. 11
(6) This section does not apply to an employee who is a transferred 12
employee under section 69.2 13
Division 4--Public holidays 14
holidays 15
Public
15.(1) An employee, other than a casual employee or pieceworker, who 16
would ordinarily be required to work on a day on which a public holiday 17
falls is entitled to full pay for the time the employee would ordinarily have 18
been required to perform work on that day. 19
(2) Subsection (1) applies whether the employee-- 20
(a) works on that day; or 21
(b) does not work on that day because of the holiday. 22
(3) Subsection (1) does not apply if the employee is rostered off on a 23
public holiday. 24
(4) If an employee who is bound by an industrial instrument does work 25
on a public holiday, the employer must pay the employee-- 26
(a) for the greater of the hours worked or 4 hours-- 27
(i) if the employee would ordinarily be required to work on a 28
2 Section 69 (Continuity of service--transfer of calling)
s 15 45 s 15
Industrial Relations
day on which a public holiday falls--at the rate of 1.5 times 1
the hourly rate, in addition to the amount payable under 2
subsection (1); or 3
(ii) if the employee would not ordinarily be required to work on 4
a day on which a public holiday falls--at the rate of double 5
time and a half; or 6
(iii) if the employee is a casual employee--at the rate of double 7
time and a half; and 8
(b) if the employee works outside the employee's ordinary working 9
hours--at double the rate stated in the instrument for that work. 10
(5) Subsections (3) and (4) do not apply if an industrial instrument 11
provides otherwise. 12
(6) Subject to another Act that restricts work or trading hours on 13
particular days of the year, the employee and employer may agree that the 14
employee work on a public holiday at ordinary rates in exchange for another 15
day off on full pay. 16
(7) The commission may confer on an employee an entitlement to extra 17
annual leave on full pay, instead of extra pay, for work on a public holiday. 18
(8) In a district in which a holiday is not appointed for an annual 19
agricultural, horticultural or industrial show, the employee and employer 20
must agree on an ordinary working day that is to be treated as a show 21
holiday for all purposes. 22
(9) An employee, while employed by the 1 employer, is only entitled to 23
leave on full pay for a show holiday once each calendar year. 24
(10) In this section-- 25
"double time and a half" means 2.5 times the hourly rate. 26
"ordinary working day" means a day on which the employee would 27
ordinarily be required to perform work. 28
"ordinary working hours", for an employee, means the hours between 29
the employee's ordinary starting time and ordinary finishing time 30
under a relevant industrial instrument. 31
"show holiday" means-- 32
(a) a public holiday appointed for an annual agricultural, horticultural 33
s 16 46 s 17
Industrial Relations
or industrial show under the Holidays Act 1983, section 4;3 or 1
(b) for a district in which a public holiday is not appointed for an 2
annual agricultural, horticultural or industrial show--the day 3
agreed on by the employee and employer under subsection (8). 4
PART 2--FAMILY LEAVE 5
Division 1--Parental leave 6
this division does not apply to 7
Who
16.(1) This division does not apply to-- 8
(a) casual employees, other than casual employees who are engaged, 9
by a particular employer on a regular and systematic basis, for 10
several periods of employment during a period of at least 2 years 11
immediately before the employee seeks to access an entitlement 12
under this division (a "long term casual employee"); or 13
(b) seasonal employees; or 14
(c) pieceworkers. 15
(2) This division applies to long term casual employees only so far as it 16
relates to maternity leave. 17
(3) This division applies to long term casual employees even if some of 18
the periods of employment were before the commencement of this section. 19
for pt 2 20
Definitions
17. In this part-- 21
"adoption leave" means short adoption leave or long adoption leave. 22
"child", for adoption leave, means a child who is under the age of 5 years, 23
3 Holidays Act 1983, section 4 (Special holidays)
s 18 47 s 18
Industrial Relations
but does not include a child who-- 1
(a) has previously lived continuously with the employee for a period 2
of at least 6 months; or 3
(b) is the child or stepchild of the employee or employee's spouse. 4
"long adoption leave" means leave taken by an employee to enable the 5
employee to be the primary caregiver of an adopted child. 6
"long parental leave" means-- 7
(a) for a pregnant employee--maternity leave; or 8
(b) for an employee whose spouse gives birth--leave taken by the 9
employee to enable the employee to be the child's primary 10
caregiver. 11
"maternity leave" means leave that a pregnant employee takes-- 12
(a) for the pregnancy; or 13
(b) for the birth of her child; or 14
(c) to enable her to be the child's primary caregiver. 15
"parental leave" means long parental leave, short parental leave or 16
adoption leave. 17
"short adoption leave" means leave taken by an employee at the time of 18
the placement of an adopted child with the employee. 19
"short parental leave" means leave taken by an employee, in connection 20
with the birth of a child of the employee's spouse, at the time of-- 21
(a) the birth of the child; or 22
(b) the other termination of the pregnancy. 23
24
Entitlement
18.(1) This section details the parental leave entitlement of an employee 25
for-- 26
(a) an employee who is not a long term casual employee and who 27
has had at least 12 months continuous service with the employer; 28
or 29
s 19 48 s 19
Industrial Relations
(b) a long term casual employee. 1
(2) A pregnant employee is entitled to an unbroken period of up to 2
52 weeks unpaid maternity leave-- 3
(a) for the child's birth; and 4
(b) to be the child's primary caregiver. 5
(3) For the birth of a child of an employee's spouse4 , the employee is 6
entitled to the following leave-- 7
(a) an unbroken period of up to 1 week's unpaid short parental leave; 8
(b) a further unbroken period of up to 51 weeks unpaid long parental 9
leave. 10
(4) For the adoption of a child, an employee is entitled to the following 11
leave-- 12
(a) an unbroken period of up to 3 weeks unpaid short adoption leave; 13
(b) a further unbroken period of up to 49 weeks unpaid long adoption 14
leave. 15
(5) However, parental leave must not extend beyond 1 year after the child 16
was born or adopted. 17
(6) In this section-- 18
"continuous service" means service, including a period of authorised leave 19
or absence, under an unbroken employment contract. 20
and documents--maternity leave 21
Notices
19.(1) This section applies if a pregnant employee wants to take 22
maternity leave. 23
(2) The employee must give the employer-- 24
(a) at least 10 weeks' written notice of intention to take the leave; and 25
(b) at least 4 weeks' written notice of the dates on which she wants to 26
4 "spouse" of an employee includes--
(a) a former spouse; and
(b) a de facto spouse, including a spouse of the same sex as the employee.
s 20 49 s 21
Industrial Relations
start and end the leave. 1
(3) The employee must, before starting the leave, give the employer-- 2
(a) a doctor's certificate confirming that she is pregnant and the 3
expected date of birth; and 4
(b) a statutory declaration by the employee stating the period of any 5
parental leave sought by her spouse. 6
and documents--parental leave other than maternity or 7
Notices
adoption leave 8
20.(1) This section applies if an employee wants to take parental leave, 9
other than maternity leave or adoption leave. 10
(2) The employee must give the employer-- 11
(a) for long parental leave, at least 10 weeks' written notice of 12
intention to take the leave; and 13
(b) at least 4 weeks' written notice of the dates on which the 14
employee wants to start and end the leave. 15
(3) The employee must, before starting the leave, give the employer-- 16
(a) a doctor's certificate confirming that the employee's spouse is 17
pregnant and the expected date of birth; and 18
(b) for long parental leave--a statutory declaration by the employee 19
stating-- 20
(i) the period of any maternity leave sought by the employee's 21
spouse; and 22
(ii) the employee is seeking the leave to be the child's primary 23
caregiver. 24
and documents--adoption leave 25
Notices
21.(1) This section applies if an employee wants to take adoption leave. 26
(2) The employee must give the employer-- 27
(a) for long adoption leave--written notice of any approval to adopt a 28
child at least 10 weeks before the expected date of placement of 29
s 22 50 s 22
Industrial Relations
the child for adoption purposes (the "expected placement 1
date"); and 2
(b) written notice of the dates on which the employee wants to start 3
and end the leave, as soon as practicable after the employee is 4
notified of the expected placement date but, in any case, at least 5
14 days before starting the leave. 6
(3) The employee must, before starting the leave, give the employer-- 7
(a) a statement from an adoption agency of the expected placement 8
date; and 9
(b) for long adoption leave--a statutory declaration by the employee 10
stating-- 11
(i) the period of any adoption leave sought by the employee's 12
spouse; and 13
(ii) the employee is seeking the leave to be the child's primary 14
caregiver. 15
(4) In this section-- 16
"adoption agency" means an agency, body, office or court, authorised by a 17
Commonwealth or State law to perform functions about adoption. 18
not to give notice or documents 19
Reasons
22.(1) An employee does not fail to comply with section 19, 20 or 21 if 20
the failure was caused by-- 21
(a) the child being born, or the pregnancy otherwise terminating, 22
before the expected date of birth; or 23
(b) the child being placed for adoption before the expected placement 24
date; or 25
(c) another reason that was reasonable in the circumstances. 26
(2) However, the employee must give the employer-- 27
(a) notice of the period of the leave within 2 weeks after the birth or 28
placement; and 29
(b) in the case of the birth of a living child--a doctor's certificate 30
stating the date on which the child was born. 31
s 23 51 s 26
Industrial Relations
of change to situation 1
Notice
23. An employee must notify the employer of any change in the 2
information provided under section 19, 20 or 21 within 2 weeks after the 3
change. 4
of service 5
Continuity
24.(1) Parental leave does not break an employee's continuity of service. 6
(2) Parental leave is not to be taken into account in working out the 7
employee's period of service, other than-- 8
(a) to decide the employee's entitlement to a later period of parental 9
leave; or 10
(b) as expressly provided in this Act, an industrial instrument or 11
employment contract. 12
not to take parental leave at same time 13
Spouses
25.(1) An employee is not entitled to parental leave, other than short 14
parental leave or short adoption leave, when his or her spouse is on parental 15
leave. 16
(2) If the employee contravenes subsection (1), the period of parental 17
leave that the employee is entitled to is reduced by the period of leave taken 18
by his or her spouse. 19
parental leave 20
Cancelling
26.(1) Parental leave applied for but not started is automatically cancelled 21
if-- 22
(a) the employee withdraws the application for leave by written notice 23
to the employer; or 24
(b) the pregnancy terminates other than by the birth of a living child; 25
or 26
(c) the placement of the child with the employee for adoption 27
purposes does not proceed. 28
(2) If, while an employee is on parental leave-- 29
s 27 52 s 28
Industrial Relations
(a) the pregnancy terminates other than by the birth of a living child; 1
or 2
(b) the child in relation to whom the employee is on parental leave 3
dies; or 4
(c) the placement of the child with the employee for adoption 5
purposes does not proceed or continue; 6
the employee is entitled to resume work at a time nominated by his or her 7
employer within 2 weeks after the day on which the employee gives his or 8
her employer a written notice stating the employee intends to resume work 9
and the reason for the resumption. 10
(3) This section does not affect an employee's entitlement to special 11
maternity leave or sick leave under section 37.5 12
leave with other leave 13
Parental
27.(1) An employee may take any annual leave or long service leave to 14
which the employee is entitled instead of or together with parental leave. 15
(2) However, the total period of leave can not extend beyond the total 16
period allowed under section 18.6 17
(3) While the employee is on unpaid parental leave, the employee is not 18
entitled to paid sick leave or other paid leave, unless the employer agrees. 19
(4) In this section-- 20
"other paid leave" means paid leave authorised by law or by an industrial 21
instrument or employment contract. 22
of parental leave by return to work 23
Interruption
28.(1) An employee and employer may agree that the employee break the 24
period of parental leave by returning to work for the employer, whether on a 25
full-time, part-time or casual basis. 26
5 Section 37 (Special maternity leave and sick leave)
6 Section 18 (Entitlement)
s 29 53 s 31
Industrial Relations
(2) The period of parental leave can not be extended by the return to work 1
beyond the total period allowed under section 18. 2
period of parental leave 3
Extending
29.(1) An employee may extend the period of parental leave once only by 4
written notice given to the employer at least 14 days-- 5
(a) before the start of the parental leave; or 6
(b) if the leave has been started--before the leave ends. 7
(2) The notice must state when the extended period of leave ends. 8
(3) The total period of leave can not be extended beyond the total period 9
allowed under section 18, unless the employer agrees. 10
period of parental leave 11
Shortening
30. If the employer agrees, an employee may shorten parental leave by 12
written notice given to the employer at least 14 days before the employee 13
wants to return to work. 14
on parental leave of ceasing to be the primary caregiver 15
Effect
31.(1) This section applies if-- 16
(a) during a substantial period starting on or after the start of an 17
employee's long parental leave, the employee is not the child's 18
primary caregiver; and 19
(b) considering the length of the period and any other relevant 20
circumstances, it is reasonable to expect the employee will not 21
again become the child's primary caregiver within a reasonable 22
period. 23
(2) The employer may notify the employee of the day, at least 4 weeks 24
after the employer gives the notice, on which the employee must return to 25
work. 26
(3) If the employee returns to work, the employer must cancel the rest of 27
the leave. 28
s 32 54 s 33
Industrial Relations
to work after parental leave etc. 1
Return
32.(1) This section applies to-- 2
(a) an employee who returns to work after parental leave; or 3
(b) a female employee who returns to work after special maternity 4
leave or sick leave under section 37. 5
(2) The employee is entitled to be employed in-- 6
(a) the position held by the employee immediately before starting 7
parental leave; or 8
(b) if the employee worked part-time because of the pregnancy before 9
starting maternity leave--the position held by the employee 10
immediately before starting part-time work; or 11
(c) if the employee was transferred to a safe job under section 36 12
before starting maternity leave--the position held by the 13
employee immediately before the transfer. 14
(3) If the position no longer exists but there are other positions available 15
that the employee is qualified for and is capable of performing, the 16
employee is entitled to be employed in a position that is, as nearly as 17
possible, comparable in status and remuneration to that of the employee's 18
former position. 19
(4) An employer must make a position to which an employee is entitled 20
available to the employee. 21
(5) If a long term casual employee's hours were reduced because of the 22
pregnancy before starting maternity leave, the employer must restore the 23
employee's hours to hours equivalent to those worked immediately before 24
the hours were reduced. 25
obligations 26
Employer's
33.(1) On becoming aware that an employee or an employee's spouse is 27
pregnant, or that an employee is adopting a child, an employer must inform 28
the employee of-- 29
(a) the employee's entitlement to parental leave under this part; and 30
(b) the employee's obligations to notify the employer of any matter 31
under this part. 32
s 34 55 s 35
Industrial Relations
(2) An employer can not rely on an employee's failure to give a notice or 1
other document required by this part unless the employer establishes that 2
this subsection has been complied with. 3
because of pregnancy or parental leave 4
Dismissal
34.(1) An employer must not dismiss an employee because-- 5
(a) the employee or employee's spouse is pregnant or has applied to 6
adopt a child; or 7
(b) the employee or employee's spouse has given birth to a child or 8
adopted a child; or 9
(c) the employee has applied for, or is absent on, parental leave. 10
(2) This section does not affect any other rights of-- 11
(a) an employer to dismiss an employee; or 12
(b) a dismissed employee. 13
employees 14
Replacement
35.(1) The employer must, before a replacement employee starts 15
employment, give the replacement employee a written notice informing the 16
replacement employee of-- 17
(a) the temporary nature of the employment; and 18
(b) the parent's right to return to work. 19
(2) In this section-- 20
"replacement employee" means-- 21
(a) a person who is specifically employed because an employee (the 22
"parent")-- 23
(i) starts parental leave; or 24
(ii) is transferred to a safe job under section 36; or 25
(b) a person replacing an employee who is temporarily promoted or 26
transferred to replace the parent. 27
s 36 56 s 37
Industrial Relations
to a safe job 1
Transfer
36.(1) This section applies whenever the present work of a female 2
employee is, because of her pregnancy or breastfeeding, a risk to the health 3
or safety of the employee or of her unborn or newborn child. 4
(2) The assessment of the risk is to be made on the basis of-- 5
(a) a doctor's certificate given by the employee to the employer; and 6
(b) the employer's obligations under the Workplace Health and 7
Safety Act 1995. 8
(3) The employer must temporarily adjust the employee's working 9
conditions or hours of work to avoid exposure to the risk. 10
(4) If an adjustment is not feasible or can not reasonably be required to be 11
made, the employer must transfer the employee to other appropriate work 12
that-- 13
(a) will not expose her to the risk; and 14
(b) is, as nearly as possible, comparable in status and remuneration to 15
that of her present work. 16
(5) If a transfer is not feasible or can not reasonably be required to be 17
made, the employer must grant the employee maternity leave, or any 18
available paid sick leave, for as long as a doctor certifies it is necessary to 19
avoid exposure to the risk. 20
maternity leave and sick leave 21
Special
37.(1) This section applies if, before an employee starts maternity 22
leave-- 23
(a) the employee's pregnancy terminates before the expected date of 24
birth, other than by the birth of a living child; or 25
(b) the employee suffers illness related to her pregnancy. 26
(2) For as long as a doctor certifies it to be necessary, the employee is 27
entitled to the following types of leave-- 28
(a) unpaid leave ("special maternity leave"); 29
(b) paid sick leave, either instead of, or as well as, special maternity 30
leave. 31
s 38 57 s 39
Industrial Relations
adoption leave 1
Special
38. An employee who is seeking to adopt a child is entitled to up to 2
2 days unpaid leave to attend compulsory interviews or examinations as part 3
of the adoption procedure. 4
2--Carer's leave 5
Division
6
Entitlement
39.(1) An employee may use up to 5 days of sick leave on full pay 7
("carer's leave") in each year to care and support-- 8
(a) members of the employee's immediate family when they are ill; 9
or 10
(b) members of the employee's household when they are ill. 11
(2) The employee must, if required by the employer, produce a doctor's 12
certificate or statutory declaration evidencing that the member is ill with an 13
illness that requires care by another. 14
(3) An employee can not take carer's leave if another person has taken 15
leave to care for the same person. 16
(4) Carer's leave may be taken for part of a day. 17
(5) The employee must, if practicable, give the employer-- 18
(a) notice of the intention to take carer's leave before taking the leave; 19
and 20
(b) the name of the person requiring care and the person's 21
relationship to the employee; and 22
(c) the reason for taking the leave; and 23
(d) the period that the employee estimates he or she will be absent. 24
(6) If it is not practicable for the employee to notify the employer of the 25
intention to take carer's leave before taking the leave, the employee must 26
notify the employer at the first reasonable opportunity. 27
(7) An employee may take unpaid carer's leave if the employer agrees. 28
s 40 58 s 42
Industrial Relations
3--Bereavement leave 1
Division
2
Entitlement
40.(1) This section does not apply to casual employees or pieceworkers. 3
(2) An employee is entitled to at least 2 days bereavement leave on full 4
pay on the death of a member of the person's immediate family or 5
household in Australia. 6
(3) The employee must give the employer a copy of the funeral notice or 7
other evidence of the death the employer reasonably requires. 8
(4) An employee may take unpaid bereavement leave if the employer 9
agrees. 10
Division 4--Part overrides less favourable conditions 11
part overrides less favourable conditions 12
This
41. This part has effect despite-- 13
(a) another law of the State; or 14
(b) an industrial instrument or order; 15
to the extent that the law, instrument or order provides an employee with a 16
benefit that is less favourable to the employee. 17
PART 3--LONG SERVICE LEAVE 18
Division 1--Definitions for pt 3 19
for pt 3 20
Definitions
42. In this part-- 21
"continuous service" of an employee means-- 22
s 43 59 s 43
Industrial Relations
(a) in section 50 7--the period of continuous service the employee is 1
taken to have had with an employer under section 50(4); and 2
(b) elsewhere--the employee's continuous service with the same 3
employer (whether wholly in the State, or partly in and partly 4
outside the State). 5
"owner" of a meat works includes a person who carries on the business of 6
the works. 7
"period between seasons" includes the period between-- 8
(a) the end of 1 season and the start of the next season; and 9
(b) for a particular employee--the day the employee stops 10
employment in 1 season and the day the employee starts 11
employment in the next season. 12
"season" means a period (whether falling completely in 1 calendar year or 13
partly in 1 calendar year and partly in the next calendar year) when-- 14
(a) for the sugar industry-- 15
(i) sugar cane is delivered to, and crushed at, a sugar mill; or 16
(ii) sugar cane is harvested, or farm work is performed, in the 17
sugar industry; or 18
(b) for a meat works--stock are delivered to, and slaughtered at, the 19
works. 20
2--Employees generally 21
Division
22
Entitlement
43.(1) This section applies to all employees, other than seasonal 23
employees. 24
(2) An employee is entitled to long service leave on full pay of-- 25
(a) for the first 15 years continuous service--13 weeks; and 26
(b) if the employee has completed at least a further 5 years 27
7 Section 50 (Entitlement--employees in sugar industry and meat works)
s 44 60 s 44
Industrial Relations
continuous service--another period that bears to 13 weeks the 1
proportion that the employee's further period of continuous 2
service bears to 15 years. 3
(3) An employee is entitled to a proportionate payment for long service 4
leave if-- 5
(a) the employee has completed at least 10 but less than 15 years 6
continuous service; and 7
(b) the employee's service is terminated by-- 8
(i) the employee's death; or 9
(ii) the employee; or 10
(iii) the employer, for a cause other than serious misconduct. 11
(4) Long service leave is exclusive of a public holiday that falls during the 12
period of the leave. 13
(5) An employee who is entitled to long service leave elsewhere than 14
under this Act, is entitled to leave that is at least as favourable as the 15
entitlement under this section. 16
(6) In this section-- 17
"proportionate payment" means a payment equal to the employee's full 18
pay for a period that bears to 13 weeks the proportion that the 19
employee's period of continuous service (stated in years, and a fraction 20
of a year if necessary) bears to 15 years. 21
out continuity of service for service before 23 June 1990 22
Working
44.(1) This section applies to service of all employees who are not casual 23
employees before 23 June 1990.8 24
(2) The repealed Industrial Conciliation and Arbitration Act 1961, 25
sections 17, 18, 19 and 20, applies to-- 26
(a) the determination of the employee's continuous service before 27
23 June 1990; and 28
8 In all other circumstances, see part 6 (Continuity of service and employment).
s 45 61 s 46
Industrial Relations
(b) the calculation of the employee's entitlement to long service leave 1
in relation to continuous service before 23 June 1990. 2
long service leave 3
Taking
45.(1) The commission may insert in an industrial instrument 4
provisions-- 5
(a) about the time when, the way in which, and the conditions on 6
which, long service leave may be taken; or 7
(b) to the effect that leave in the nature of long service leave taken, 8
before the provisions take effect, by an employee bound by the 9
instrument must be deducted from the long service leave that the 10
employee becomes entitled to under the provisions. 11
(2) An employee and employer may agree when the employee is to take 12
long service leave. 13
(3) If the employee and employer can not agree, the employer may 14
decide when the employee is to take leave by giving the employee at least 15
3 months written notice of the date on which the employee must take at least 16
4 weeks long service leave. 17
(4) Subsection (3) applies subject to an industrial instrument. 18
for long service leave 19
Payment
46.(1) The employer must pay the employee for long service leave at the 20
ordinary rate being paid to the employee immediately before the leave is 21
taken. 22
(2) However, if the employee is, immediately before taking the leave, 23
being paid at a higher rate than the ordinary rate, the employer must pay the 24
employee at the higher rate. 25
(3) An employer must not reduce an employee's usual rate, before an 26
employee starts long service leave, with intent to avoid the employer's 27
obligation under subsection (2). 28
(4) If satisfied an employer has done so, the commission may order the 29
employer to pay the employee at the usual rate even though the employee 30
was not being paid the usual rate immediately before starting leave. 31
s 47 62 s 47
Industrial Relations
(5) If, during the employee's leave-- 1
(a) the ordinary rate is increased above the higher rate--the employer 2
must pay the employee at the increased rate for the part of the 3
leave period that the increased rate applies to; or 4
(b) the ordinary rate is reduced--the employer may pay the employee 5
at the reduced rate for the part of the leave period that the reduced 6
rate applies to. 7
(6) In this section-- 8
"usual rate" the rate at which the employee is being paid for ordinary time, 9
being a rate that is higher than the ordinary rate. 10
Division 3--Casual employees 11
of service--additional considerations for casual employees 12
Continuity
47.(1) The service of an employee (a "casual employee") who is 13
employed more than once by the same employer over a period is 14
continuous service with the employer even though-- 15
(a) the employment is broken; or 16
(b) any of the employment is not full-time employment; or 17
(c) the employee is employed by the employer under 2 or more 18
employment contracts; or 19
(d) the employee would, apart from this section, be taken to be 20
engaged in casual employment; or 21
(e) the employee has engaged in other employment during the period. 22
(2) However, the continuous service ends if the employment is broken 23
by more than 3 months between the end of 1 employment contract and the 24
start of the next employment contract. 25
(3) In working out the length of an employee's continuous service-- 26
(a) the following service must not be taken into account-- 27
(i) service by the employee before 23 June 1990; 28
(ii) if the employee only obtained the entitlement because of the 29
s 48 63 s 49
Industrial Relations
enactment of the repealed Industrial Relations Reform Act 1
1994, section 179 --the employee's service between 23 June 2
1990 and 30 March 1994; and 3
(b) subject to subsection (2), a period when the employee was not 4
employed by the employer must be taken into account. 5
(4) This section does not limit any other entitlement to long service leave 6
that an employee may have. 7
long service leave--alternative provision for casual employees 8
Taking
48.(1) An employer may agree with a casual employee that the 9
entitlement to long service leave may be taken in the form of its full-time 10
equivalent. 11
12
Example--
13
If an employee--
14
(a) is entitled to be paid for 260 hours long service leave; and
15
(b) works under an award that provides for a full-time working week of
16
40 ordinary working hours;
17
the employee and the employer may agree that the employee take 61/2 weeks
18
leave (260 ÷ 40 = 61/2).
(2) This section applies subject to a provision in an industrial instrument 19
about the employee's long service leave. 20
for long service leave 21
Payment
49.(1) The minimum amount payable to a casual employee for long 22
service leave is worked out using the formula-- 23
actual service x 13 x hourly rate. 24
52 15 25
9 Section 17 (Definitions for pt 1)
s 49 64 s 49
Industrial Relations
1
Example--
2
An employee who worked 15 600 ordinary working hours over a 15 year period and
3
is being paid an hourly rate of $10 would be entitled to be paid--
4
15 600 x 13 x $10
5
52 15
6
= 260 x $10
7
= $2 600.
(2) If a dispute arises between an employee who is paid at piecework 8
rates and the employer about the rate the employee should be paid for long 9
service leave, the commission may decide the rate payable. 10
(3) An employee and employer may agree on the times when, and the 11
way in which, the employee will be paid for long service leave. 12
(4) The commission may decide any matter relating to payment for long 13
service leave that the employee and employer can not agree on. 14
(5) An amount payable for long service leave becomes payable at a time 15
agreed between the employee and employer or, if they can not agree, at a 16
time decided by the commission. 17
(6) In this section-- 18
"actual service" means the total ordinary working hours actually worked 19
by an employee during the employee's period of continuous service. 20
"casual employee" means an employee mentioned in section 47(1).10 21
"hourly rate" means the hourly rate for ordinary time payable to the 22
employee-- 23
(a) if the employee takes the long service leave--on the day that the 24
employee starts the leave; or 25
(b) if the employee's employment is terminated--on the date that the 26
termination takes effect. 27
10 Section 47 (Continuity of service--additional considerations for casual
employees)
s 50 65 s 50
Industrial Relations
Division 4--Seasonal employees 1
in sugar industry and meat works 2
Entitlement--employees
50.(1) This section applies to the following seasonal employees-- 3
(a) an employee employed in seasonal employment in the sugar 4
industry; or 5
(b) an employee employed in or about meat works in seasonal 6
employment by the meat works owner. 7
(2) The employee is entitled to long service leave on full pay of at least 8
the number of weeks worked out using the following formula-- 9
section 43 entitlement x actual service. 10
15 11
12
Example--
13
An employee who worked half of each year, over a 15 year period, is entitled to
14
half the section 43 entitlement, that is, half of 13 weeks leave or 61/2 weeks leave
15
(13 x 7.5 = 6 1/2).
16
15
(3) Service with the employer of an employee engaged in harvesting 17
sugar cane or farm work in the sugar industry before 23 June 1990 must 18
not be taken into account in working out the length of the employee's 19
continuous service. 20
(4) A period between seasons when the employee is not employed by the 21
employer must be taken into account in working out the length of an 22
employee's continuous service if-- 23
(a) in 1 season--the employee's service with the employer continued 24
until the end of the season or until an earlier day when the 25
employee's employment was terminated by the employer; and 26
(b) in the next season--the employee's service with the same 27
employer started on the season's opening or on a later day in the 28
season when the employer required the employee to start 29
employment. 30
(5) If an employee is employed by the employer between seasons, the 31
part of the period between seasons when the employee is employed must be 32
taken into account in working out the length of the employee's actual 33
s 51 66 s 52
Industrial Relations
service. 1
(6) An employee who is entitled to long service leave elsewhere than 2
under this Act, is entitled to leave that is at least as favourable as the 3
entitlement under this section. 4
(7) In this section-- 5
"actual service" means the total ordinary time actually worked by an 6
employee during the employee's period of continuous service. 7
"section 43 entitlement" means the entitlement to long service leave of an 8
employee under section 43. 9
long service leave--employees in sugar industry and meat 10
Taking
works 11
51.(1) This section applies to the following seasonal employees-- 12
(a) an employee employed in seasonal employment in the sugar 13
industry; 14
(b) an employee employed in or about meat works in seasonal 15
employment by the meat works owner. 16
(2) An employee may take long service leave between seasons. 17
(3) If an employee takes leave between seasons, the leave is taken to have 18
started when the employee last ceased employment with the employer. 19
seasonal employees 20
Other
52. The commission may decide the entitlement to long service leave of 21
an employee-- 22
(a) who is employed in seasonal employment, but who is not 23
employed-- 24
(i) in the sugar industry, or 25
(ii) in or about meat works; or 26
(b) who is employed in other periodic employment that is not defined 27
as casual employment by the relevant industrial instrument. 28
s 53 67 s 54
Industrial Relations
5--Miscellaneous 1
Division
instead of long service leave on termination 2
Payment
53.(1) An employer must not make, and an employee must not accept, 3
payment instead of long service leave except on termination of an 4
employee's employment. 5
Maximum penalty--40 penalty units. 6
(2) A person must not enter into an arrangement under which-- 7
(a) an employee or the employer terminates the employee's service 8
with the employer; and 9
(b) the employer pays the employee for all or any long service leave 10
that the employee is entitled to; and 11
(c) the employer re-employs the employee within a period, 12
commencing on the termination date, equal to the period of long 13
service leave that payment was made for. 14
Maximum penalty--40 penalty units. 15
(3) If a magistrate finds that a person has contravened subsection (2), the 16
magistrate may, in addition to any order the magistrate may make imposing 17
a penalty, make any other order the magistrate considers appropriate. 18
instead of long service leave on death 19
Payment
54.(1) This section applies if an employee entitled to long service leave 20
dies-- 21
(a) before taking the leave; or 22
(b) after starting, but before finishing, the leave. 23
(2) The employer must pay the employee's legal personal representative 24
any amount payable for the employee's entitlement to long service leave that 25
has not been already been paid. 26
(3) If the employer does not do so, the employee's legal personal 27
representative or an inspector may recover the amount as unpaid wages.11 28
11 See section 399 (Recovery of unpaid wages etc.).
s 55 68 s 58
Industrial Relations
not broken by service in Reserve Forces 1
Continuity
55.(1) An employee's service in the reserve forces is taken to be 2
continuous service with the employer who employed the employee 3
immediately before the employee starting service with the Forces. 4
(2) In this section-- 5
"reserve forces" means the Australian Naval Reserve, Australian Army 6
Reserve or Australian Air Force Reserve. 7
of certain exemptions 8
Recognition
56.(1) This part does not apply to an employer if-- 9
(a) the commission has exempted the employer, under the repealed 10
Industrial Conciliation and Arbitration Act 1961, from the 11
application of long service leave provisions in that Act or an 12
award; and 13
(b) the exemption is in force. 14
(2) On application, the commission may revoke an exemption. 15
may be "employer" and "employee" 16
Person
57. If in performing duties in a calling a person is an employee, the 17
person is entitled to long service leave as prescribed under this part despite 18
the person being, by definition for this Act, an employer because of-- 19
(a) the person's engagement in the calling; or 20
(b) the position the person holds in the calling. 21
PART 4--REVIEW 22
of general employment conditions 23
Review
58.(1) On application by the Minister, an organisation or a State peak 24
council, the full bench may review a condition under this chapter. 25
s 59 69 s 61
Industrial Relations
(2) The full bench must, before 30 June 2000, review an entitlement to 1
long service leave under this chapter. 2
(3) The full bench may, by a general ruling under section 287,12 3
substitute the condition with another condition that is no less favourable. 4
ART 5--EQUAL REMUNERATION FOR WORK OF 5
P
EQUAL OR COMPARABLE VALUE 6
for pt 5 7
Definition
59. In this part-- 8
"equal remuneration for work of equal or comparable value" means 9
equal remuneration for men and women employees for work of equal 10
or comparable value. 11
requiring equal remuneration 12
Orders
60.(1) The commission may make any order it considers appropriate to 13
ensure employees covered by the order receive equal remuneration for work 14
of equal or comparable value. 15
(2) An order may provide for an increase in remuneration rates, including 16
minimum rates. 17
only on application 18
Orders
61. The commission may make an order under this part only on 19
application by-- 20
(a) an employee to be covered by the order; or 21
(b) an organisation whose rules entitle it to represent the industrial 22
interests of employees to be covered by the order; or 23
(c) a State peak council; or 24
12 Section 287 (General rulings)
s 62 70 s 66
Industrial Relations
(d) the Minister; or 1
(e) the anti-discrimination commissioner. 2
commission must and may only make order 3
When
62. The commission must, and may only, make an order if it is satisfied 4
the employees to be covered by the order do not receive equal remuneration 5
for work of equal or comparable value. 6
or progressive introduction of equal remuneration 7
Immediate
63. The order may introduce equal remuneration for work of equal or 8
comparable value-- 9
(a) immediately; or 10
(b) progressively, in specified stages. 11
not to reduce remuneration 12
Employer
64.(1) An employer must not reduce an employee's remuneration 13
because an application or order has been made under this part. 14
(2) If an employer purports to do so, the reduction is of no effect. 15
does not limit other rights 16
Part
65.(1) This part does not limit any right a person or organisation may 17
otherwise have to secure equal remuneration for work of equal or 18
comparable value. 19
(2) Subsection (1) is subject to section 66. 20
under this part 21
Applications
66.(1) An application can not be made under this part for an order to 22
secure equal remuneration for work of equal or comparable value for an 23
employee if proceedings for an alternative remedy-- 24
(a) to secure the remuneration for the employee; or 25
s 67 71 s 68
Industrial Relations
(b) against unequal remuneration for work of equal or comparable 1
value for the employee; 2
have started under another provision of this Act or under another Act. 3
(2) Subsection (1) does not prevent an application under this part if the 4
proceedings for the alternative remedy have-- 5
(a) been discontinued by the party who started the proceedings; or 6
(b) failed for want of jurisdiction. 7
(3) If an application under this part has been made for an order to secure 8
equal remuneration for work of equal or comparable value for an employee, 9
a person is not entitled to start proceedings for an alternative remedy under a 10
provision or Act mentioned in subsection (1)-- 11
(a) to secure the remuneration for the employee; or 12
(b) against unequal remuneration for work of equal or comparable 13
value for the employee. 14
(4) Subsection (3) does not prevent proceedings being started for an 15
alternative remedy if the proceedings under this part have-- 16
(a) been discontinued by the party who started the proceedings; or 17
(b) failed for want of jurisdiction. 18
PART 6--CONTINUITY OF SERVICE AND 19
EMPLOYMENT 20
for pt 6 21
Definition
67. In this part-- 22
"service" includes employment. 23
part applies 24
How
68.(1) This part applies when working out an employee's rights and 25
s 69 72 s 70
Industrial Relations
entitlements under this chapter or chapter 313 by prescribing when the 1
employee's continuity of service is not broken. 2
(2) An employee is not entitled to claim the benefit of a right or 3
entitlement more than once for the same period of service. 4
of service--transfer of calling 5
Continuity
69.(1) A "transferred employee" is a person who becomes an 6
employee of an employer (the "new employer") because of the transfer of 7
a calling to the new employer from another employer (the "former 8
employer"). 9
(2) Even if a person is dismissed by the former employer before the 10
transfer of a calling, the person is taken to be a transferred employee if-- 11
(a) the person is employed by the new employer after the transfer; 12
and 13
(b) the employee-- 14
(i) was dismissed by the former employer within 1 month 15
immediately before the transfer; and 16
(ii) is re-employed by the new employer within 3 months after 17
the dismissal. 18
(3) The transfer of the calling is taken not to break the transferred 19
employee's continuity of service. 20
(4) A period of service with the former employer (including service 21
before the commencement of this section) is taken to be a period of service 22
with the new employer. 23
(5) In this section-- 24
"dismissed" includes stood down. 25
of service--apprentices or trainees 26
Continuity
70.(1) This section applies if-- 27
(a) an employee, while employed with the employer, starts an 28
13 Chapter 3 (Dismissals)
s 71 73 s 71
Industrial Relations
apprenticeship or traineeship; or 1
(b) the employer-- 2
(i) continues to employ an apprentice or trainee (the 3
"employee") on the completion of the apprenticeship or 4
traineeship; or 5
(ii) re-employs the employee within 3 months after completion 6
of the employee's apprenticeship or traineeship. 7
(2) The period of the apprenticeship or traineeship does not break the 8
employee's continuity of service. 9
of service--generally 10
Continuity
71.(1) Service with a partnership and an employer who was, or becomes, 11
a member of the partnership is taken to be continuous service with the same 12
employer. 13
(2) An employee's continuity of service with an employer is not broken 14
if the employee's service is temporarily lent or let on hire by the employer 15
to another employer. 16
(3) An employee's continuity of service with an employer is not broken 17
by an absence, including through illness or injury-- 18
(a) on paid leave approved by the employer; or 19
(b) on unpaid leave approved by the employer. 20
(4) An employee's continuity of service with an employer is not broken 21
if-- 22
(a) the employee's employment is terminated by the employer or 23
employee because of illness or injury; and 24
(b) the employer re-employs the employee; and 25
(c) the employee has not been employed in a calling (whether on the 26
employee's own account or as an employee) between the 27
termination and the re-employment. 28
(5) An employee's continuity of service with an employer is not broken 29
if-- 30
(a) the employee's employment is terminated by the employer or 31
s 71 74 s 71
Industrial Relations
employee; and 1
(b) the employer re-employs the employee within 3 months after the 2
termination.14 3
(6) An employee's continuity of service with an employer is not broken 4
if-- 5
(a) the employee's employment is interrupted or terminated by the 6
employer with intent to avoid an obligation under this part, an 7
industrial instrument or employment contract; or 8
(b) the employee's employment is interrupted or terminated by the 9
employer as a direct or indirect result of an industrial dispute, and 10
the employer re-employs the employee. 11
(7) An employee's continuity of service is not broken if-- 12
(a) the employee's employment is interrupted or terminated by the 13
employer because of slackness of trade or business; and 14
(b) the employer re-employs the employee. 15
(8) Service with a corporation and any of its subsidiaries is taken to be 16
continuous service with the same employer. 17
(9) However, a period for which the employee is away from work under 18
subsections (3)(b) to (6) is not service under this part unless-- 19
(a) this Act or an industrial instrument provides otherwise; or 20
(b) the commission directs otherwise. 21
(10) In this section-- 22
"subsidiary" means a corporation that would be taken to be a subsidiary 23
under the Corporations Law, whether or not the Corporations Law 24
applies in a particular case. 25
"terminate" includes stand-down. 26
14 Also see section 78(4)(a) (Remedies--reinstatement or re-employment)
s 72 75 s 72
Industrial Relations
HAPTER 3--DISMISSALS 1
C
ART 1--EXCLUSIONS 2
P
this chapter does not apply to 3
Who
72.(1) Part 215 does not apply to-- 4
(a) an employee during the first 3 months of employment with an 5
employer (the "probationary period"), if the dismissal is for a 6
reason other than an invalid reason, unless the employee and 7
employer agree in writing that the employee serve-- 8
(i) a shorter probationary period; or 9
(ii) no probationary period; or 10
(b) an employee serving a longer probationary period, if-- 11
(i) the period decided before the employment started is a 12
reasonable period having regard to the nature and 13
circumstances of the employment; and 14
(ii) the dismissal is for a reason other than an invalid reason; or 15
(c) a short term casual employee; or 16
(d) an employee engaged for a specific period or task, unless the 17
main purpose of engaging the employee in that way is, or was at 18
the time of the employee's engagement, to avoid the employer's 19
obligations under part 2; or 20
(e) an employee-- 21
(i) who is not employed under an industrial instrument; and 22
(ii) who is not a public service officer employed on tenure under 23
the Public Service Act 1996; and 24
(iii) whose annual wages immediately before the dismissal are 25
more than $68 000 or a greater amount stated, or worked out 26
in a way prescribed under a regulation. 27
15 Part 2 (Unfair dismissals)
s 72 76 s 72
Industrial Relations
(2) Part 316 does not apply to-- 1
(a) a casual employee; or 2
(b) an employee engaged by the hour or day; or 3
(c) an employee engaged for a specific period or task. 4
(3) Sections 87, 88 and 8917 do not apply to an employee with less than 1 5
year of continuous service. 6
(4) A regulation may exclude particular employees from the operation of 7
particular provisions of this chapter. 8
(5) Without limiting subsection (4), the regulation may identify as a class 9
of employees those employees whose wages or salary immediately before 10
dismissal was more than an amount, or an amount worked out in a way, 11
prescribed under the regulation. 12
(6) This chapter does not apply to-- 13
(a) an apprentice or trainee; or 14
(b) an employee participating in a labour market program. 15
(7) This chapter does not apply to a federal award employee, but instead 16
the provisions of the Commonwealth Act relating to dismissals apply (as a 17
law of the State) to the employee. 18
(8) In this section-- 19
"federal award employee" means an employee-- 20
(a) any of whose employment conditions are governed by an award, 21
certified agreement or AWA under the Commonwealth Act; but 22
(b) who is not an employee mentioned in the Commonwealth Act, 23
section 170CB(1)(a) to (d). 24
"short term casual employee" means a casual employee, other than a 25
casual employee who-- 26
(a) is engaged-- 27
16 Part 3 (Requirements for dismissal)
17 Sections 87 (Orders about severance allowances and other separation benefits),
88 (Employer must give notice of proposed dismissals) and 89 (Employer must
consult with employee organisations about dismissals)
s 73 77 s 73
Industrial Relations
(i) by a particular employer on a regular and systematic basis; 1
and 2
(ii) for several periods of employment during a period of at least 3
1 year; and 4
(b) apart from the employer's decision not to offer the person further 5
employment, had a reasonable expectation of further employment 6
by the employer. 7
PART 2--UNFAIR DISMISSALS 8
is a dismissal unfair 9
When
73.(1) A dismissal is unfair if it is-- 10
(a) harsh, unjust or unreasonable; or 11
(b) for an invalid reason. 12
(2) Each of the following is an "invalid reason"-- 13
(a) temporary absence, within the meaning of a regulation, from 14
work because of illness or injury (other than an injury within the 15
meaning of part 518); 16
(b) seeking office as, or acting or having acted in the capacity of, an 17
employees' representative; 18
(c) membership of an employee organisation or participation in the 19
organisation's activities outside working hours or, with the 20
employer's consent, during working hours; 21
(d) non-membership of an employee organisation; 22
(e) filing a complaint, or taking part in proceedings, against an 23
employer involving alleged violation of laws or recourse to 24
competent administrative authorities; 25
(f) the making by anyone, or a belief that anyone has made or may 26
18 Part 5 (Protection of injured employees)
s 74 78 s 74
Industrial Relations
make-- 1
(i) a public interest disclosure under the Whistleblowers 2
Protection Act 1994; or 3
(ii) a complaint under the Health Rights Commission Act 1991; 4
(g) refusing to negotiate for, make, sign, extend, amend or terminate 5
a certified agreement or QWA; 6
(h) refusing to negotiate for or make a certified agreement, or 7
Australian workplace agreement, under the Commonwealth Act; 8
(i) a reason mentioned in section 34;19 9
(j) a reason mentioned in section 394(2);20 10
(k) discrimination. 11
for reinstatement 12
Application
74.(1) An application for reinstatement must be made to the commission 13
within-- 14
(a) 21 days after the dismissal takes effect; or 15
(b) a further period the commission allows on an application made at 16
any time. 17
(2) An application may be made by-- 18
(a) an employee; or 19
(b) with the employee's consent--an organisation whose rules entitle 20
it to represent the employee's industrial interests. 21
(3) The registrar may reject an application if the registrar considers the 22
dismissed employee is a person to whom this chapter does not apply. 23
(4) If the registrar rejects the application, the registrar must, by written 24
notice, notify the applicant-- 25
(a) that the application has been rejected; and 26
19 Section 34 (Dismissal because of pregnancy or parental leave)
20 Section 394 (Contract not to stipulate mode of spending wages)
s 75 79 s 75
Industrial Relations
(b) of the reasons why the registrar considers the dismissed 1
employee is a person to whom this chapter does not apply. 2
(5) The applicant may, by written notice given within 21 days after the 3
registrar's notice is received, inform the registrar that the applicant wishes 4
the application to proceed. 5
(6) If the applicant does so, the commission must deal with the 6
application, despite the registrar's rejection. 7
(7) The commission and registrar must deal with an application as 8
quickly as possible. 9
before application heard 10
Conciliation
75.(1) The commission must hold a conference to attempt to settle an 11
application under section 74 by conciliation before it hears the application. 12
(2) The commission may, by written notice, require the applicant, 13
employee or employer to attend the conference at a stated time and place. 14
(3) If the commission is satisfied all reasonable attempts to settle the 15
matter by conciliation are, or are likely to be, unsuccessful so far as it relates 16
to at least 1 ground of the application, it-- 17
(a) must issue a written certificate stating that it is so satisfied for a 18
stated ground; and 19
(b) inform the parties to the conciliation of-- 20
(i) the commission's assessment of the merits of the application 21
in relation to the stated ground; and 22
(ii) the possible consequences of further proceeding on the 23
application; and 24
(c) may recommend the application be discontinued, whether or not it 25
also recommends another way of resolving the matter. 26
(4) The application lapses if the applicant has not, within 6 months after 27
the applicant has been informed by the commission under subsection (3)-- 28
(a) taken any action in relation to the application; or 29
(b) discontinued the application. 30
(5) The parties may seek further conciliation, or settle the matter, at any 31
s 76 80 s 77
Industrial Relations
time before an order is made under section 78, 79 or 80. 1
(6) The president may delegate the functions of the commission under 2
this section to the registrar or a deputy registrar. 3
when conciliation unsuccessful 4
Arbitration
76. If the commission considers all reasonable attempts to settle an 5
application by conciliation have been made, but have been unsuccessful, the 6
commission may hear and decide the application by-- 7
(a) making an order under section 78, 79 or 80; or 8
(b) dismissing the application. 9
to be considered in deciding an application 10
Matters
77. In deciding whether a dismissal was harsh, unjust or unreasonable, 11
the commission must consider-- 12
(a) whether the employee was notified of the reason for dismissal; 13
and 14
(b) whether the dismissal related to-- 15
(i) the operational requirements of the employer's undertaking, 16
establishment or service; or 17
(ii) the employee's conduct, capacity or performance; and 18
(c) if the dismissal relates to the employee's conduct, capacity or 19
performance-- 20
(i) whether the employee had been warned about the conduct, 21
capacity or performance; or 22
(ii) whether the employee was given an opportunity to respond 23
to the allegation about the conduct, capacity or performance; 24
and 25
(d) any other matters the commission considers relevant. 26
s 78 81 s 79
Industrial Relations
or re-employment 1
Remedies--reinstatement
78.(1) This section applies if the commission is satisfied an employee 2
was unfairly dismissed. 3
(2) The commission may order the employer to reinstate the employee to 4
the employee's former position on conditions at least as favourable as the 5
conditions on which the employee was employed immediately before 6
dismissal. 7
(3) If the commission considers reinstatement would be impracticable, 8
the commission may order the employer to re-employ the employee in 9
another position that the employer has available and that the commission 10
considers suitable. 11
(4) The commission may also-- 12
(a) make an order it considers necessary to maintain the continuity of 13
the employee's employment or service; and 14
(c) order the employee to repay any amount paid to the employee by, 15
or for, the employer on the dismissal; and 16
(b) order the employer to pay the employee the remuneration lost, or 17
likely to have been lost, by the employee because of the dismissal, 18
after taking into account any employment benefits or wages 19
received by the employee since the dismissal. 20
(5) This section does not limit the commission's power to make an 21
interim or interlocutory order. 22
23
Remedies--compensation
79.(1) If, and only if, the commission considers reinstatement or 24
re-employment would be impracticable, the commission may order the 25
employer to pay the employee an amount of compensation decided by the 26
commission. 27
(2) The commission must not award an amount of compensation that is 28
more than-- 29
(a) if the employee was employed under an industrial 30
instrument--the wages the employer would have been liable to 31
pay the employee for the 6 months immediately after the 32
s 80 82 s 81
Industrial Relations
dismissal, paid at the rate the employee received immediately 1
before the dismissal; or 2
(b) if the employee was not employed under an industrial 3
instrument--the lesser of the wages under paragraph (a) and an 4
amount equal to half the amount prescribed under 5
section 72(1)(e)(iii). 6
(3) The commission must take into account any amount paid to the 7
employee by the employer on the dismissal. 8
(4) This section does not limit the commission's power to make an 9
interim or interlocutory order. 10
for unfair dismissal--invalid reason 11
Sanctions
80.(1) If satisfied an employer has dismissed an employee for an invalid 12
reason, the commission may order the employer to pay the employee an 13
amount of not more than the monetary value of 135 penalty units. 14
(2) The commission may make the order in addition to an order for 15
reinstatement, re-employment or compensation. 16
orders if employer fails to reinstate 17
Further
81.(1) If an employer wilfully contravenes an order to reinstate or 18
re-employ an employee, the commission may-- 19
(a) further order the employer to pay the employee-- 20
(i) an amount of not more than the monetary value of 21
50 penalty units; and 22
(ii) an amount for lost wages; and 23
(b) make further orders until the employer complies with an order 24
under section 78 or this section. 25
(2) This section does not affect another provision of this Act allowing 26
proceedings to be taken against the employer. 27
s 82 83 s 83
Industrial Relations
of order on leave 1
Effect
82. If the commission makes an order under section 78, the interruption 2
to the employee's continuity of employment or service caused by the 3
dismissal must be disregarded when working out the employee's 4
entitlement-- 5
(a) to annual, sick, family or long service leave; or 6
(b) under this chapter. 7
PART 3--REQUIREMENTS FOR DISMISSAL 8
employer must do to dismiss employee 9
What
83.(1) An employer may dismiss an employee only if-- 10
(a) the employee has been-- 11
(i) given the period of notice required by section 84; or 12
(ii) paid the compensation required by section 85; or 13
(b) the employee engages in misconduct of a type that would make it 14
unreasonable to require the employer to continue the employment 15
during the notice period. 16
(2) Misconduct under subsection (1)(b) includes-- 17
(a) theft; and 18
(b) assault; and 19
(c) fraud; and 20
(d) other misconduct prescribed under a regulation. 21
(3) However, subsection (1)(b) does not apply if the employee can show 22
that, in the circumstances, the conduct was not conduct that made it 23
unreasonable to continue the employment during the notice period. 24
(4) If an employer dismisses an employee, to whom subsection (1)(a) 25
applies, without giving the required notice or paying the required 26
compensation-- 27
s 84 84 s 84
Industrial Relations
(a) on an application under section 7421--the commission may order 1
the employer to pay the employee the compensation that the 2
employer was required to pay under section 85; or 3
(b) otherwise--the commission or a magistrate may order the 4
employer to pay the employee the compensation that the 5
employer was required to pay under section 85. 6
(5) An application for an order under subsection (4)(b) may be made 7
by-- 8
(a) an employee who has been dismissed; or 9
(b) with the employee's consent--an organisation whose rules entitle 10
it to represent the employee's industrial interests; or 11
(c) an inspector. 12
(6) The application must be made within 6 years after the day on which 13
the employee is dismissed. 14
(7) A regulation may exclude from the operation of this section 15
dismissals happening in specified circumstances that relate to the transfer of 16
the employer's business. 17
period of notice required 18
Minimum
84.(1) The minimum period of notice is-- 19
(a) if the employee's continuous service is-- 20
(i) not more than 1 year--1 week; and 21
(ii) more than 1 year, but not more than 3 years--2 weeks; and 22
(iii) more than 3 years, but not more than 5 years--3 weeks; and 23
(iv) more than 5 years--4 weeks; and 24
(b) increased by 1 week if the employee-- 25
(i) is 45 years old or over; and 26
(ii) has completed at least 2 years of continuous service with the 27
employer. 28
21 Section 74 (Application for reinstatement)
s 85 85 s 87
Industrial Relations
(2) A regulation may prescribe matters that must be disregarded when 1
working out continuous service under subsection (1). 2
amount of compensation required 3
Minimum
85.(1) The minimum compensation payable to an employee is at least 4
equal to the total of the amounts the employer would have been liable to pay 5
the employee if the employee's employment had continued until the end of 6
the required notice period. 7
(2) The total must be worked out on the basis of-- 8
(a) the ordinary working hours worked by the employee; and 9
(b) the amounts payable to the employee for the hours, including, for 10
example, allowances, loadings and penalties; and 11
(c) any other amounts payable under the employee's employment 12
contract. 13
(3) A regulation may prescribe the amount that is taken to be payable, or 14
how to work out the amount, under an employment contract mentioned in 15
subsection (2)(c), to an employee whose wages before dismissal were 16
decided wholly or partly on the basis of commission or piece rates. 17
PART 4--DISMISSAL OF 15 OR MORE EMPLOYEES 18
this part applies 19
When
86. This part applies if an employer decides to dismiss 15 or more 20
employees for an economic, technological or structural reason. 21
about severance allowances and other separation benefits 22
Orders
87.(1) The commission may make an order about severance allowance or 23
other separation benefits on application by-- 24
(a) an employee; or 25
(b) an organisation whose rules entitle it to represent the employee's 26
s 88 86 s 88
Industrial Relations
industrial interests. 1
(2) An employer must not contravene the order. 2
(3) If an employer contravenes the order, the commission may-- 3
(a) make any of the orders it may make under section 78(2), (3) 4
or (4);22 or 5
(b) order the employer to pay the employee an amount of not more 6
than the monetary value of 135 penalty units. 7
(4) In this section-- 8
"severance allowance or other separation benefits" means severance 9
allowance or other separation benefits under article 12 of the 10
Termination of Employment Convention 1982. 11
must give notice of proposed dismissals 12
Employer
88.(1) The employer may dismiss the employees only if the employer, as 13
soon as practicable after making the decision, notifies-- 14
(a) the Commonwealth department or agency whose primary 15
function is helping unemployed people find work; and 16
(b) each employee organisation of which any of the employees is a 17
member. 18
(2) The notice must state-- 19
(a) the number and categories of employees being dismissed; and 20
(b) the reasons for the dismissals; and 21
(c) the time when, or the period over which, the employer intends to 22
carry out the dismissals. 23
(3) If satisfied an employer has dismissed, or proposes to dismiss, an 24
employee without giving the notice, the commission may make any or all of 25
the following orders-- 26
(a) any of the orders it may make under section 78(2), (3) or (4); 27
(b) an order that the employer pay each employee an amount of not 28
22 Section 78 (Remedies--reinstatement or re-employment)
s 89 87 s 89
Industrial Relations
more than the monetary value of 135 penalty units; 1
(c) an order declaring the dismissal ineffective until the employer has 2
given the notice. 3
(4) An application for an order may be made by-- 4
(a) an employee, including a dismissed employee; or 5
(b) an organisation whose rules entitle it to represent the employee's 6
industrial interests; or 7
(c) an inspector. 8
(5) The commission may order that a penalty, or part of a penalty, be 9
paid to any person who may have made the application (other than an 10
officer or employee of the State or a public service officer). 11
(6) Any part of the penalty ordered to be paid to the person must first be 12
paid to the person. 13
(7) The remainder of the penalty must then be paid to the consolidated 14
fund. 15
(8) A failure to give a notice is not an offence. 16
must consult with employee organisations about dismissals 17
Employer
89.(1) The employer must give each employee organisation of which any 18
of the employees is a member an opportunity to consult with the employer 19
on ways to-- 20
(a) avoid or minimise the dismissals; and 21
(b) minimise the adverse effects of the dismissals, for example, by 22
finding alternative employment. 23
(2) The employer must do so as soon as practicable after making the 24
decision to dismiss employees, but in any case before dismissing any of the 25
employees. 26
(3) If the employer does not give the organisation an opportunity to 27
consult as required, the commission may make the orders it considers 28
appropriate to put employees, and their organisations, in the same position, 29
as nearly as can be done, as if the employer had done so. 30
(4) The commission may make an order on application from an 31
s 90 88 s 92
Industrial Relations
employee or organisation that is to be affected by the order. 1
(5) Subsections (1) and (2) do not apply to an organisation if the 2
employer could not reasonably be expected to have known, at the time of 3
the decision, that the organisation's rules entitled it to represent the industrial 4
interests of the dismissed employees. 5
within which application under this part must be made 6
Time
90. An application for an order under this part must be made-- 7
(a) before, or within 21 days after, the dismissal takes effect; or 8
(b) within a further period the commission allows on an application 9
made at any time. 10
ART 5--PROTECTION OF INJURED EMPLOYEES 11
P
for pt 5 12
Definitions
91. In this part-- 13
"dismiss" an injured employee includes a situation where-- 14
(a) an unreasonable employment condition that is designed to make 15
the employee leave employment is imposed on the employee; and 16
(b) the employee leaves the employment. 17
"injured employee" means an employee who receives an injury. 18
"injury" means an injury within the meaning of the WorkCover 19
Queensland Act 1996 for which compensation is payable under that 20
Act. 21
to be paid for the day employee injured 22
Wages
92.(1) An injured employee is entitled to be paid full wages for the day 23
when the injury happens. 24
(2) Subsection (1) applies despite an industrial instrument or 25
s 93 89 s 94
Industrial Relations
employment contract. 1
(3) An injured employee's entitlement under subsection (1), or an 2
entitlement to be paid in relation to an injury under the Workcover 3
Queensland Act 1996, is in addition to the employee's entitlement to sick 4
leave under chapter 2, part 1, division 2.23 5
of injured employees only after 6 months 6
Dismissal
93.(1) Within 6 months after an employee becomes injured, the 7
employer must not dismiss the employee solely or mainly because the 8
employee is not fit for employment in a position because of the injury. 9
Maximum penalty--40 penalty units. 10
(2) This section applies to a dismissal after the commencement of this 11
section even if the employee became unfit before the commencement. 12
for injured employee 13
Replacement
94.(1) This section applies if the employer wants to employ a 14
replacement employee while an injured employee is not fit for employment 15
in a position because of the injury. 16
(2) The employer must, before a replacement employee starts 17
employment, give the replacement employee a written notice informing the 18
replacement employee of-- 19
(a) the temporary nature of the employment; and 20
(b) the injured employee's right to return to work. 21
(3) In this section-- 22
"replacement employee" means-- 23
(a) a person who is specifically employed because an injured 24
employee is not fit for employment in a position because of the 25
injury; or 26
(b) a person replacing an employee who is temporarily promoted or 27
transferred to replace the injured employee. 28
23 Chapter 2, part 1, division 2 (Sick leave)
s 95 90 s 96
Industrial Relations
of injured employees 1
Reinstatement
95.(1) This section applies if an injured employee is dismissed because 2
the employee is not fit for employment in a position because of the injury. 3
(2) The employee may apply to the employer, within 12 months after the 4
injury, for reinstatement to the employee's former position. 5
(3) The employee must give the employer a doctor's certificate that 6
certifies the employee is fit for employment in the former position. 7
(4) If the employer fails to immediately reinstate the employee, the 8
following persons may apply to the commission for a reinstatement order-- 9
(a) the employee; 10
(b) an employee organisation of which the employee is a member, 11
with the employee's consent. 12
(5) The commission may order the employer to reinstate the employee if 13
satisfied the employee is fit for employment in the former position. 14
(6) The order may specify terms of reinstatement, including for example, 15
the day the reinstatement is to take effect. 16
(7) This section applies to a dismissal after the commencement of this 17
section even if the employee became unfit before the commencement. 18
(8) In this section-- 19
"former position" of an injured employee means, at the employee's 20
option-- 21
(a) the position from which the injured employee was dismissed; or 22
(b) if the employee was transferred to a less advantageous position 23
before dismissal--the position held by the employee when the 24
employee became unfit for employment. 25
of employee's rights 26
Preservation
96.(1) This part does not affect another right of a dismissed employee 27
under an Act or law. 28
(2) This part can not be affected by a contract or agreement. 29
s 97 91 s 98
Industrial Relations
PART 6--STAND-DOWN OF EMPLOYEES 1
stood-down in December then re-employed in January 2
Employee
97.(1) This section applies to an employee, other than a casual employee 3
within the meaning of the relevant industrial instrument, who-- 4
(a) is stood down by an employer during December; and 5
(b) is re-employed by the employer before the end of the next 6
January; and 7
(c) was employed by the employer for a continuous period of at least 8
2 weeks immediately before being stood-down. 9
(2) The employer must pay the employee at the ordinary rate payable to 10
the employee immediately before the stand-down for the Christmas Day, 11
Boxing Day, and New Year's Day public holidays between the stand-down 12
and the re-employment. 13
(3) In this section-- 14
"stand-down" includes dismissal. 15
stand-down of employee 16
Permissible
98.(1) An employer may stand-down an employee on a day, or for part 17
of a day, when the employee can not be usefully employed because of 18
something that happened-- 19
(a) for which the employer is not responsible; or 20
(b) over which the employer has no control. 21
(2) The employer may stand-down the employee without pay, unless an 22
industrial instrument provides otherwise. 23
(3) This section does not apply to an apprentice or trainee. 24
s 99 92 s 101
Industrial Relations
ART 7--GENERAL 1
P
does not limit other rights 2
Chapter
99. This chapter does not limit a right a person or organisation may 3
otherwise have to-- 4
(a) appeal against a dismissal; or 5
(b) have an industrial instrument or order about a dismissal made. 6
instruments and orders 7
Inconsistent
100. An industrial instrument or order that is inconsistent with an order 8
under this chapter does not apply to the extent the inconsistency 9
detrimentally affects the rights of employees concerned. 10
CHAPTER 4--FREEDOM OF ASSOCIATION 11
ART 1--PRELIMINARY 12
P
purposes of ch 4 13
Main
101. The main purposes of this chapter are to ensure-- 14
(a) a person who is eligible to become a member of an industrial 15
association may become or remain a member of the association 16
without fear of discrimination;24 and 17
(b) a person who does not wish to become or remain a member of an 18
industrial association may refrain from doing so without fear of 19
discrimination. 20
24 For eligibility for membership, see section 531 (Eligibility).
s 102 93 s 102
Industrial Relations
for ch 4 1
Definitions
102. In this chapter-- 2
"conduct" includes an omission. 3
"conscientious beliefs" means an individual's beliefs based on the 4
individual's moral values or fundamental religious beliefs, other than a 5
belief founded wholly or principally on objections to the policies of an 6
organisation or organisations generally. 7
"exempted person" means a person who holds an exemption certificate. 8
"exemption certificate" means an exemption certificate under 9
section 115(1) that has not expired. 10
"industrial association" means any of the following-- 11
(a) an organisation; 12
(b) an association of independent contractors, however called, that is 13
registered or recognised as an association under an industrial law; 14
(c) an association of employees having as a principal purpose the 15
protection and promotion of their interests in matters concerning 16
their employment; 17
(d) an association of independent contractors having as a principal 18
purpose the protection and promotion of their interests as 19
independent contractors; 20
(e) an association of employers having as a principal purpose the 21
protection and promotion of their interests in matters concerning 22
employment or independent contractors; 23
(f) a branch of an industrial association under paragraphs (a) to (e). 24
"industrial body" means-- 25
(a) the commission; or 26
(b) the court or another court or commission, however called, 27
exercising industrial law functions and powers corresponding to 28
the commission's functions and powers. 29
"industrial instrument" includes an award or agreement made under the 30
Commonwealth Act or a law of another State. 31
"industrial law" means this Act or another Act regulating the relationships 32
s 103 94 s 104
Industrial Relations
between employers and employees. 1
"management committee" of an industrial association means the body of 2
persons, however called, that manages its affairs. 3
"prohibited conduct" means conduct prohibited under part 2. 4
"representative" of an industrial association means-- 5
(a) a delegate of the association; or 6
(b) an employee of the association; or 7
(c) an officer or agent of the association acting in that capacity. 8
of "industrial action" for ch 4 9
Meaning
103. In this chapter, "industrial action" includes conduct by a person-- 10
(a) engaged as an independent contractor that would be a strike if the 11
conduct had been engaged in by an employee; and 12
(b) who has engaged an independent contractor that would be a 13
lockout if the conduct had been engaged in by an employer. 14
(2) A reference in this chapter to "industrial action" includes a reference 15
to a course of conduct that makes up a series of industrial actions. 16
of "engaging in" conduct for a "prohibited reason" for ch 4 17
Meaning
104.(1) For this chapter, a person engages in conduct for a "prohibited 18
reason" if the person engages in, or threatens to engage in, the conduct 19
because another person-- 20
(a) is, has been, proposes to cease being or become, or has proposed 21
to cease being or become a member or representative of an 22
industrial association; or 23
(b) is not, or does not propose to become, a member or representative 24
of an industrial association; or 25
(c) has not paid, or does not propose to pay, a fee, however called, to 26
an industrial association; or 27
(d) is, has been, proposes to cease being or become, or has proposed 28
to cease being or become an exempted person; or 29
s 104 95 s 104
Industrial Relations
(e) has not or does not propose to join in industrial action; or 1
(f) has not agreed or consented to, or voted for, the making of an 2
agreement to which an industrial association of which the person 3
is a member, would be a party; or 4
(g) has participated in, proposes to participate in or has proposed to 5
participate in, a secret ballot ordered by an industrial body under 6
an industrial law; or 7
(h) has the right to the benefit of an industrial instrument or an order 8
of an industrial body; or 9
(i) has made or proposes to make an inquiry or complaint to a 10
person or body having the capacity under an industrial law to 11
seek-- 12
(i) compliance with that law; or 13
(ii) the observance of a person's rights under an industrial 14
instrument; or 15
(j) has given evidence or taken part in ("participate") or proposes to 16
participate in, or has proposed to participate in proceedings under 17
an industrial law; or 18
(k) is a member of an industrial association that is seeking better 19
industrial conditions; or 20
(l) is dissatisfied with the person's industrial conditions; or 21
(m) has absented himself or herself from work as an employee or 22
independent contractor without leave and-- 23
(i) the absence was to carry out a duty or exercise a right as an 24
officer of an industrial association; and 25
(ii) the person applied for leave before absenting himself or 26
herself and leave was unreasonably refused or withheld; or 27
(n) as an officer or member of an industrial association has done, or 28
proposes to do, an act or thing that is lawful and authorised by the 29
association's rules to further or protect the industrial interests of 30
the association or its members; or 31
(o) is a health and safety representative appointed under the 32
Workplace Health and Safety Act 1995. 33
s 105 96 s 105
Industrial Relations
(2) A person "engages in" conduct for a prohibited reason if the conduct 1
is engaged in for a reason that includes a prohibited reason. 2
(3) In this section, a reference to a person engaging in conduct includes a 3
reference to the person being, directly or indirectly, a party to or concerned 4
in the conduct. 5
ART 2--PROHIBITED CONDUCT 6
P
conduct for employers and principals 7
Prohibited
105.(1) This section applies to a person who is, or proposes to become, 8
an employer or who has engaged, or proposes to engage, someone else as 9
an employee or independent contractor. 10
(2) The person must not, for a prohibited reason, engage in the following 11
conduct-- 12
(a) refuse to engage a person as an employee or independent 13
contractor; 14
(b) terminate a person's contract of employment or contract for 15
services; 16
(c) disadvantage or injure a person who is, or proposes to become, an 17
employee or independent contractor; 18
(d) discriminate against a person in the conditions on which the 19
person is offered a contract of employment or contract for 20
services; 21
(e) in negotiating an agreement under chapter 6, part 1,25 discriminate 22
between the persons's employees because-- 23
(i) some of the employees are members of an employee 24
organisation, while others are not members of the 25
organisation; or 26
(ii) some of the employees are members of a particular 27
25 Chapter 6 (Agreements), part 1 (Certified agreements)
s 106 97 s 108
Industrial Relations
employee organisation, while others are not members of the 1
organisation, or are members of a different employee 2
organisation. 3
conduct for employees and independent contractors 4
Prohibited
106.(1) This section applies to a person who is, or proposes to become, 5
an employee or who is, or proposes to become, an independent contractor. 6
(2) The person must not, for a prohibited reason, take industrial action 7
against the person who engaged, or proposes to engage, the person as an 8
employee or an independent contractor. 9
conduct for industrial associations 10
Prohibited
107. An industrial association must not, for a prohibited reason, engage 11
in the following conduct-- 12
(a) organise or take, or threaten to organise or take, industrial action; 13
(b) advise, encourage or incite a person to engage in prohibited 14
conduct or conduct that would be prohibited conduct if the person 15
were an employer or a person who engaged an independent 16
contractor; 17
(c) take or threaten to take action that disadvantages a person in the 18
person's employment, prospective employment, contract for 19
services or prospective contract for services; 20
(d) disadvantage, or impose or threaten to impose a penalty or 21
disability, on a member of the association or a person who is 22
eligible to become a member of the association. 23
actions by representative not prohibited conduct 24
Certain
108. An industrial association does not engage in prohibited conduct 25
under another provision of this part if-- 26
(a) the conduct was engaged in by its representative, during or in 27
connection with industrial action; and 28
(b) the representative acted without the knowledge of the 29
s 109 98 s 112
Industrial Relations
association's management committee; and 1
(c) the management committee could not, by the exercise of 2
reasonable diligence, have prevented the conduct. 3
requiring or permitting prohibited conduct 4
Provision
109. An industrial instrument or an arrangement is void to the extent it 5
requires or permits prohibited conduct. 6
provisions permitted 7
Encouragement
110.(1) A provision (an "encouragement provision") of an industrial 8
instrument may encourage a person to join or maintain membership of an 9
industrial association. 10
(2) The following is not prohibited conduct-- 11
(a) making or acting under an encouragement provision; 12
(b) encouraging a person to join or maintain membership of an 13
industrial association. 14
(3) In this section-- 15
"encourage" does not include coerce. 16
PART 3--EXEMPTION FROM MEMBERSHIP 17
may apply for exemption 18
Who
111. A person may apply to a magistrate or the registrar for an 19
exemption from membership of an organisation only because of the 20
person's conscientious beliefs. 21
for hearing 22
Procedure
112. Before deciding the application, the magistrate or registrar must 23
follow the procedure prescribed under a regulation for the hearing. 24
s 113 99 s 115
Industrial Relations
application 1
Deciding
113.(1) The magistrate or registrar may grant the application only if 2
satisfied the applicant-- 3
(a) genuinely holds conscientious beliefs; and 4
(b) has paid the same amount as the membership subscription of the 5
organisation to the registrar of a Magistrates Court or the registry. 6
(2) If the magistrate or registrar decides to refuse to grant the application, 7
the registrar must promptly give the applicant a notice stating the 8
following-- 9
(a) the decision; 10
(b) the reasons for the decision; 11
(c) that the applicant may appeal against the decision to the full bench 12
within 21 days; 13
(d) how to start an appeal.26 14
payment must be applied 15
How
114. The amount paid to the registrar of the Magistrates Court or the 16
registry must be paid to the consolidated fund. 17
certificate 18
Exemption
115.(1) If the application is granted, the magistrate or registrar must give 19
the applicant a certificate (an "exemption certificate"). 20
(2) The exemption certificate must-- 21
(a) be in the approved form; and 22
(b) state-- 23
26 See sections 342 (Appeal from commission, magistrate or registrar) and
346 (Time limited for appeal)
s 116 100 s 118
Industrial Relations
(i) that the applicant is exempt from membership of the 1
organisation because the applicant's conscientious beliefs; 2
and 3
(ii) the day the exemption takes effect. 4
of exemption certificate 5
Expiry
116. An exemption certificate expires 1 year after the day the exemption 6
stated in the certificate took effect. 7
ART 4--CIVIL REMEDIES 8
P
may apply 9
Who
117. The following may apply to the commission for an order under this 10
part-- 11
(a) an entity against whom prohibited conduct has been carried out or 12
is proposed to be carried out; 13
(b) an industrial association of which an entity mentioned in 14
paragraph (a) is a member or is eligible to become a member of; 15
(c) another entity prescribed under a regulation. 16
required before hearing 17
Conciliation
118. Before the commission hears the application, it must direct the 18
parties to the proceedings to hold a conference before it-- 19
(a) to try to resolve, by conciliation, the issues relevant to the 20
proceedings; and 21
(b) to ensure the parties are fully informed of the orders that may be 22
made at the hearing. 23
s 119 101 s 120
Industrial Relations
to be heard 1
Right
119.(1) The commission must, before making an order under this part 2
against an entity, give the entity an opportunity to be heard. 3
(2) This section does not apply to the making of an interim order or 4
interim injunction. 5
6
Remedies
120.(1) If, after hearing the application, the commission is satisfied an 7
entity has engaged in, or proposes to engage in, prohibited conduct it may 8
order the entity-- 9
(a) to pay a penalty of not more than the monetary value of-- 10
(i) for a corporation, 135 penalty units; or 11
(ii) otherwise, 27 penalty units; or 12
(b) to reinstate an employee in-- 13
(i) the position from which the employee was removed or 14
dismissed because of the prohibited conduct or proposed 15
prohibited conduct on which the ground was based; or 16
(ii) a similar position; or 17
(c) to re-engage an independent contractor; or 18
(d) to pay appropriate compensation to an entity disadvantaged by the 19
conduct or proposed conduct; or 20
(e) not to carry out a threat made by the entity or make any further 21
threat. 22
(2) If the commission orders the reinstatement of an employee, the 23
reinstatement must be on conditions at least as favourable as the conditions 24
on which the employee was employed immediately before the employee's 25
removal or dismissal. 26
(3) The commission may also-- 27
(a) grant an interim or other injunction or make any other order it 28
considers appropriate to stop the conduct or proposed conduct or 29
to remedy its effects; or 30
s 121 102 s 122
Industrial Relations
(b) make any other order that is consequential to an order under this 1
section. 2
(4) The commission may make more than 1 order under this section 3
against the same entity. 4
of penalty 5
Payment
121.(1) If the commission orders an entity to pay a penalty, it may also 6
order that the penalty, or a part of the penalty, be paid to another entity. 7
(2) Any part of the penalty that is ordered to be paid to the other entity 8
must first be paid to the other entity. 9
(3) The remainder of the penalty must be paid to the consolidated fund. 10
of prohibited conduct 11
Evidence
122.(1) This section applies if conduct was engaged in by any of the 12
following-- 13
(a) an industrial association's management committee; 14
(b) an officer or agent of an industrial association acting in that 15
capacity; 16
(c) a member or group of members of an industrial association 17
authorised by-- 18
(i) the rules of the association; or 19
(ii) its management committee; or 20
(iii) an officer or agent of the association acting in that capacity; 21
(d) a member of an industrial association, who performs the function 22
of dealing with an employer or principal on behalf of the member 23
and other members of the association, acting in that capacity; 24
(e) a director or other officer or an employee or agent of a 25
corporation, acting in that capacity. 26
(2) Evidence that the conduct was engaged in by an entity mentioned in 27
subsection (1) is evidence the conduct was engaged in by the industrial 28
association or corporation. 29
s 123 103 s 124
Industrial Relations
(3) Evidence that the entity engaged in the conduct for a prohibited reason 1
is evidence the conduct was engaged in by the industrial association or 2
corporation for the prohibited reason. 3
HAPTER 5--AWARDS 4
C
ART 1--FORM AND APPLICATION 5
P
effect and term of award 6
Form,
123.(1) An award-- 7
(a) must be in a form decided by the commission; and 8
(b) takes effect and has the force of law throughout the State and 9
without limit of time, except as otherwise prescribed by 10
subsection (2). 11
(2) An award may state it is in force-- 12
(a) in a stated locality; or 13
(b) for a stated period; or 14
(c) in relation to a stated employer; or 15
(d) in relation to a stated establishment or operation of a stated 16
employer. 17
(3) An award stated to be limited in a way mentioned in subsection (2) 18
has effect only to the extent that it provides. 19
ersons bound by award 20
P
124.(1) An award binds-- 21
(a) subject to paragraphs (d) to (f)--all employers who are engaged 22
in the calling to which the award applies; and 23
(b) subject to paragraphs (d) to (f)--all employees who are engaged 24
in the calling to which the award applies; and 25
s 125 104 s 125
Industrial Relations
(c) all organisations concerned with the calling to which the award 1
applies; and 2
(d) if the award applies only in a stated locality--all employers and 3
employees in the locality who are engaged in the calling to which 4
the award applies; and 5
(e) if the award applies only to a stated employer-- 6
(i) the employer and any successor of the employer; and 7
(ii) all employees of the employer and any successor; and 8
(f) if the award applies only to a stated establishment or operation of 9
a stated employer-- 10
(i) the employer and any successor of the employer; and 11
(ii) all employees of the employer in the establishment or 12
operation. 13
(2) This section applies subject to section 653 and to all exemptions 14
ordered by the commission under section 132 or 234.27 15
PART 2--COMMISSION'S POWERS 16
amending and repealing awards 17
Making,
125.(1) The commission may make, amend or repeal an award to 18
provide, among other things, fair and just employment conditions. 19
(2) The commission may act under subsection (1)-- 20
(a) of its own initiative; or 21
(b) on application by-- 22
(i) the Minister; or 23
(ii) an organisation; or 24
27 Section 653 (Effect on certain instruments)
Section 132 (Exemptions)
Section 234 (Remedies on show cause)
s 126 105 s 126
Industrial Relations
(iii) an employer; or 1
(iv) a person who satisfies the commission that the person is not 2
an officer of, or acting for, an eligible association. 3
(3) The commission may make an award that-- 4
(a) revokes or amends a decision; or 5
(b) declares void or amends labour contracts made before or after the 6
commencement of this Act, subject to the conditions and 7
exemptions the commission considers appropriate; or 8
(c) gives the retrospective effect the commission considers 9
appropriate, or that is consented to by the parties, to the whole or 10
part of an award, but so that, except with the parties' consent, the 11
retrospective effect is not made to operate before the day when the 12
commission first took cognisance of the matter; or 13
(d) directs a copy of an award be exhibited by the employer in a 14
conspicuous and convenient place on the premises of an employer 15
bound by the award. 16
of awards 17
Content
126. The commission must ensure an award-- 18
(a) does not contain discriminatory provisions; and 19
(b) is stated in plain English and is easy to understand in structure 20
and content; and 21
(c) does not contain provisions that are obsolete or need updating; 22
and 23
(d) provides for secure, relevant and consistent wages and 24
employment conditions; and 25
(e) provides fair standards for employees in the context of living 26
standards generally prevailing in the community; and 27
(f) is suited to the efficient performance of work according to the 28
needs of particular enterprises, industries or workplaces; and 29
(g) takes account of the efficiency and effectiveness of the economy, 30
including productivity, inflation and the desirability of achieving a 31
s 127 106 s 128
Industrial Relations
high level of employment; and 1
(h) whenever possible-- 2
(i) contains facilitative provisions that allow agreement at the 3
workplace or enterprise level, between employers and 4
employees (including individual employees), on how the 5
award provisions are to apply; and 6
(ii) contains provisions enabling the employment of regular 7
part-time employees; and 8
(iii) provides support for training arrangements. 9
resolution procedures in each award 10
Dispute
127.(1) The commission must ensure an award contains a dispute 11
resolution procedure. 12
(2) The form of the procedure is to be agreed on by the parties to the 13
award. 14
(3) However, if the parties can not agree, the commission must insert an 15
appropriate procedure in the award. 16
(4) Without limiting subsection (1), the procedure must include-- 17
(a) procedures for consultation at the workplace; and 18
(b) procedures for the involvement of relevant organisations; and 19
(c) any other procedure prescribed under a regulation. 20
that fix wage rates 21
Awards
128.(1) In fixing wage rates payable to employees in a calling, the 22
commission must fix the rates on the basis that a man and a woman 23
employed by the same employer must receive equal remuneration for work 24
of equal or comparable value without discrimination on the ground of sex. 25
(2) Despite any other provision of this Act, wage rates fixed by the 26
commission for persons under 21 years may be fixed on a progressive scale 27
based on the wage rates payable to employees 21 years or over in the same 28
calling. 29
s 129 107 s 131
Industrial Relations
(3) In making an award that fixes the wage rates, the commission must 1
consider the age and experience of the persons under 21 years. 2
of certified agreements 3
Flow-on
129. The commission may include in an award provisions that are based 4
on a certified agreement only if satisfied the provisions-- 5
(a) are consistent with principles established by the full bench that 6
apply for deciding wages and employment conditions; and 7
(b) are not contrary to the public interest. 8
of awards 9
Review
130.(1) The commission may review an award-- 10
(a) of its own initiative; or 11
(b) on the application of a party to the award. 12
(2) Without limiting subsection (1), a party may apply to the commission 13
to amend a provision of an award about wages or employment conditions. 14
(3) The commission must review an award within 3 years after-- 15
(a) it was made; or 16
(b) if it was made before the commencement of this section--the 17
commencement; or 18
(c) it was last reviewed under this section. 19
(4) In reviewing an award, the commission must do what is required by 20
sections 126, 127 and 128. 21
of industrial instruments referred by the Anti-Discrimination 22
Review
Commission 23
131.(1) The commission must review an industrial instrument referred to 24
it by the Anti-Discrimination Commission on the grounds that it is 25
discriminatory. 26
(2) The anti-discrimination commissioner is a party to the proceedings. 27
s 132 108 s 134
Industrial Relations
PART 3--EXEMPTIONS 1
2
Exemptions
132.(1) The commission may, of its own initiative or on application by 3
an organisation or employer, by the order by which it makes an award, or 4
by its later order, exempt from the application of the award-- 5
(a) an employer or class of employer, or employee or class of 6
employee, in a locality or in the calling to which the award 7
applies; and 8
(b) a person who is engaged, whether as employer or employee, in 9
the locality or calling, while the award remains in force. 10
(2) The commission may give the exemption only if satisfied the 11
exemption-- 12
(a) is in the best interests of the employees and employers concerned; 13
and 14
(b) is not contrary to the public interest. 15
(3) While an exemption exists, the award does not bind the employer, 16
employee, class, or person, according to the exemption. 17
ART 4--GENERAL 18
P
of awards 19
Enforceability
133. Action can not be commenced to enforce an award until 21 days 20
after the date it is published in the industrial gazette. 21
of appeals on awards 22
Effect
134. The commission must immediately amend an award to give effect 23
to-- 24
(a) a decision of the Court of Appeal, court or full bench affecting the 25
award on appeal from a decision of the commission; or 26
s 135 109 s 136
Industrial Relations
(b) a decision of the court affecting the award on a case stated by the 1
commission. 2
between awards and contracts 3
Inconsistency
135.(1) To the extent of any inconsistency, an award prevails over a 4
contract of service that is-- 5
(a) in force when the award becomes enforceable; or 6
(b) made while the award continues in force. 7
(2) The contract is to be interpreted, and takes effect, as if it were 8
amended to the extent necessary to make the area of inconsistency conform 9
to the award. 10
(3) However, no inconsistency arises only because the contract provides 11
for employment conditions more favourable to the employee than the 12
award. 13
PART 5--WAGES AND EMPLOYMENT 14
CONDITIONS FOR APPRENTICES AND TRAINEES 15
and trainee's employment conditions 16
Apprentice's
136.(1) An apprentice or trainee is entitled to the same employment 17
conditions as those fixed by the industrial instrument applicable to 18
employees in the workplace where the apprentice or trainee is employed. 19
(2) If an industrial instrument provides for a tradesperson in a calling to 20
be paid an allowance in addition to wages, an apprentice in the calling is 21
entitled to be paid-- 22
(a) if, under the instrument, the allowance is taken to be part of the 23
tradesperson's wages--the percentage of the allowance that the 24
apprentice's wages bear to the tradesperson's wages; or 25
(b) if, under the instrument, the allowance is not taken to be part of 26
the tradesperson's wages--the full allowance. 27
s 137 110 s 137
Industrial Relations
(3) If an industrial instrument provides for a tradesperson in a calling to 1
be paid an allowance that is assessed as a percentage of the tradesperson's 2
wages, an apprentice in the calling is entitled to be paid the percentage of the 3
allowance that the apprentice's wages bear to the tradesperson's wages. 4
(4) Subsection (3) applies whether or not, under the instrument, the 5
allowance is taken to be part of the tradesperson's wages. 6
(5) In this section-- 7
"industrial instrument" includes an award or agreement under the 8
Workplace Relations Act 1996 (Cwlth). 9
setting minimum wages and conditions 10
Order
137.(1) The commission may make an order fixing minimum wages and 11
employment conditions for the following employees, whether or not they 12
are employed under an industrial instrument-- 13
(a) apprentices or trainees; or 14
(b) different classes of apprentices or trainees. 15
(2) In making an order, the commission may consider any matter it 16
considers relevant, including-- 17
(a) the age, competency, or method of progression through training 18
of the apprentices or trainees; and 19
(b) an industrial instrument. 20
(3) Despite section 136, if there is an inconsistency between an order and 21
an industrial instrument, the order prevails to the extent of the inconsistency. 22
(4) The commission may make an order-- 23
(a) of its own initiative; or 24
(b) on application by-- 25
(i) the State Training Council; or 26
(ii) an organisation; or 27
(iii) a State peak council; or 28
(iv) the Minister; or 29
s 138 111 s 138
Industrial Relations
(v) another entity with an interest in apprentices or trainees. 1
(5) In this section-- 2
"industrial instrument" includes an award or agreement under the 3
Commonwealth Act. 4
setting tool allowance 5
Order
138.(1) The commission may make an order requiring an apprentice's 6
employer to provide the apprentice with-- 7
(a) tools relevant to the calling the apprentice is engaged in; or 8
(b) an amount to enable the apprentice to buy the tools (a "tool 9
allowance"). 10
(2) The order may state-- 11
(a) the particular tools to be provided and the circumstances in which 12
they are to be provided; or 13
(b) the circumstances in which a tool allowance must be provided. 14
(3) The commission may make an order-- 15
(a) of its own initiative; or 16
(b) on application by-- 17
(i) the State Training Council; or 18
(ii) an organisation; or 19
(iii) a State peak council; or 20
(iv) the Minister; or 21
(v) another entity with an interest in apprentices. 22
(4) An employer must not contravene an order. 23
Maximum penalty--40 penalty units. 24
(5) If a magistrate finds an employer guilty of an offence against 25
subsection (4), the magistrate must, in addition to a penalty the magistrate 26
may impose, order the employer to-- 27
(a) provide the apprentice with the tools required to be provided 28
under the commission's order; or 29
s 139 112 s 140
Industrial Relations
(b) pay to the Magistrates Court the amount-- 1
(i) stated in the commission's order; or 2
(ii) equivalent to the cost of the tools required to be provided 3
under the commission's order. 4
(6) The magistrate may express the order in the alternative so the 5
employer may decide how to comply with it. 6
(7) The court must pay an amount paid under subsection (5)(b) to the 7
apprentice. 8
of employment before apprenticeship or traineeship 9
Termination
cancelled or completed 10
139.(1) This section applies despite any other provision of this Act if an 11
employer is training-- 12
(a) an apprentice under an apprenticeship; or 13
(b) a trainee under a traineeship. 14
(2) The apprentice's or trainee's employment with the employer can not 15
be terminated unless the apprenticeship or traineeship is completed or is 16
cancelled under the Vocational Education, Training and Employment 17
Act 1991, part 3.28 18
Maximum penalty--40 penalty units. 19
ART 6--LABOUR MARKET PROGRAMS 20
P
for wages and employment conditions 21
Orders
140.(1) The commission may make an order fixing wages and 22
employment conditions for employees who participate in a labour market 23
program. 24
28 Vocational Education, Training and Employment Act 1991, part 3 (Training
administration)
s 140 113 s 140
Industrial Relations
(2) In making an order, the commission may consider any matter it 1
considers relevant, including-- 2
(a) the objectives of the program; and 3
(b) any attribute of the participants that affects their ability to get 4
employment, including, for example-- 5
(i) the age and competency of the participants; and 6
(ii) any disability or incapacity of the participants; and 7
(c) the kind of work done in the program; and 8
(d) the experience to be gained by the participants; and 9
(e) any relevant industrial instrument; and 10
(f) any remuneration or benefit the participants are receiving from the 11
Commonwealth or the State. 12
(3) The commission may make an order-- 13
(a) of its own initiative; or 14
(b) on application by-- 15
(i) the State Training Council; or 16
(ii) the Minister. 17
(4) In this section-- 18
"labour market program" means a labour market program approved by 19
the Minister. 20
s 141 114 s 141
Industrial Relations
CHAPTER 6--AGREEMENTS 1
ART 1--CERTIFIED AGREEMENTS 2
P
1--Making agreements 3
Division
agreements 4
Certified
141.(1) A certified agreement may be made about the relationship 5
between an employer and a group of employees (whether all employees, or 6
a category of employees) of the employer. 7
(2) The certified agreement covers all employees in the group, even if 8
they were employed after the agreement was made. 9
(3) In this section-- 10
"group of employees" includes-- 11
(a) employees of a single employer; and 12
(b) employees of a multi-employer; and 13
(c) employees of an employer who are engaged in a project, 14
including a proposed project; and 15
(d) employees proposed to be employed in a new business by an 16
employer, other than a multi-employer; and29 17
(e) employees of-- 18
(i) the State; or 19
(ii) an entity established for a public purpose under a law of the 20
State or Commonwealth; or 21
(iii) another entity in which the State has a controlling interest. 22
29 See section 167 (Successor employers bound) for what happens on the transfer of
a business to a new employer.
s 142 115 s 143
Industrial Relations
may make certified agreements 1
Who
142. A certified agreement may be made between-- 2
(a) on the one hand, the employer; and 3
(b) on the other hand-- 4
(i) 1 or more employee organisations who represent, or are 5
entitled to represent, any employees who are, or are eligible 6
to be, members of the organisation; or 7
(ii) the employees at the time the agreement is made. 8
parties to be advised when agreement is proposed 9
Proposed
143.(1) This section applies when a person (the "proposer") proposes to 10
make a certified agreement. 11
(2) The proposer must advise the following persons, in writing, of the 12
proposer's intention to begin negotiations for the agreement-- 13
(a) the other proposed parties to the agreement; and 14
(b) for a project agreement--all relevant employee organisations and 15
the commission. 16
(3) The proposer must advise the persons at least 14 days before the 17
negotiations are proposed to begin. 18
(4) If the agreement proposed is a project agreement, an organisation that 19
receives advice under subsection (2) and wants to be party to the agreement 20
must give written notice of that fact to-- 21
(a) the proposer; and 22
(b) the commission. 23
(5) If the agreement proposed is a multi-employer agreement, a person 24
who receives advice under subsection (2) and wants to be party to the 25
agreement must give written notice of that fact to the proposer. 26
(6) A notice under subsection (4) or (5) must be given within 21 days of 27
the person receiving the advice. 28
(7) An agreement may only be made within that 21 days if the other 29
proposed parties to the agreement, and all relevant employee organisations, 30
s 144 116 s 144
Industrial Relations
have given a notice under subsection (4) or (5). 1
(8) In this section---- 2
"multi-employer agreement" means an agreement made with a 3
multi-employer. 4
"relevant employee organisation" means an employee organisation that-- 5
(a) is a party to an award or industrial agreement that binds the 6
employer, or would bind the employer apart from an award under 7
the Commonwealth Act; or 8
(b) if there is no award or agreement that binds, or would bind, the 9
employer--is entitled to represent the industrial interests of the 10
relevant employees. 11
is to be done when an agreement is proposed 12
What
144.(1) This section does not apply to a certified agreement to be made 13
with an employee organisation for employees proposed to be employed in a 14
new business. 15
(2) When a certified agreement is proposed to be made with an employee 16
organisation or employees, the employer must take reasonable steps to 17
ensure-- 18
(a) at least 14 days before the relevant employees are asked to 19
approve the agreement, each relevant employee has, or has ready 20
access to, the proposed written agreement; and 21
(b) the terms of the agreement (including the procedures for 22
preventing and settling disputes), and the effect of the terms, are 23
explained to each relevant employee before approval is given; and 24
(c) for an agreement with employees--each relevant employee is 25
informed that he or she may ask a relevant employee organisation 26
to represent the employee in negotiating with the employer about 27
the agreement. 28
(3) If a relevant employee does ask a relevant employee organisation to 29
represent the employee, the employer must give the organisation a 30
reasonable opportunity to represent the employee in negotiating with the 31
employer about the agreement before it is made. 32
s 145 117 s 145
Industrial Relations
(4) Subsection (3) stops applying if, after the request is made-- 1
(a) the relevant employee withdraws the request; or 2
(b) the employee stops being a relevant employee. 3
(5) In this section-- 4
"relevant employee organisation" means an employee organisation-- 5
(a) of which a relevant employee is a member; and 6
(b) that-- 7
(i) is a party to an award or industrial agreement that binds the 8
employer, or would bind the employer apart from an award 9
under the Commonwealth Act; or 10
(ii) if there is no award or agreement that binds, or would bind, 11
the employer--is entitled to represent the industrial interests 12
of the relevant employees. 13
for project agreements 14
Negotiations
145.(1) This section applies if more than 1 employee organisation has 15
given notice, under section 143(4), that it wants to be party to a proposed 16
project agreement. 17
(2) The employer must negotiate with the single bargaining unit, through 18
a person nominated by the single bargaining unit to represent it. 19
(3) An organisation may withdraw as a party to a proposed project 20
agreement by written notice to-- 21
(a) the other organisations that comprise the single bargaining unit; 22
and 23
(b) the proposer; and 24
(c) the commission. 25
(4) In this section-- 26
"single bargaining unit" means all the employee organisations that have 27
given notice, under section 143(4), that they want to be party to a 28
proposed project agreement. 29
s 146 118 s 148
Industrial Relations
must be in good faith 1
Negotiations
146. When negotiating the terms of a proposed agreement, the proposed 2
parties to the agreement must negotiate in good faith. 3
4
Examples of good faith in negotiating--
5
· agreeing to meet at reasonable times proposed by another party
6
· attending meetings that the party had agreed to attend
7
· complying with negotiation procedures agreed to by the parties
8
· not capriciously adding or withdrawing items for negotiation
9
· disclosing relevant information as appropriate for the negotiations
10
· negotiating with all of the parties.
obligation period to assist negotiations 11
Peace
147.(1) To enable the proposed parties to reach agreement about the 12
terms of the proposed agreement, the proposed parties can not during the 13
peace obligation period-- 14
(a) take industrial action for the purpose of-- 15
(i) supporting or advancing claims made in relation to the 16
proposed agreement; or 17
(ii) responding to industrial action by the employer or the 18
relevant employees; or 19
(b) ask the commission to help the parties to make the agreement 20
under section 148. 21
(2) In this section-- 22
"peace obligation period" means the period of 21 days after the giving of 23
the advice mentioned in section 143(2), ending no earlier than 7 days 24
after the nominal expiry date of any existing certified agreement. 25
in negotiating by conciliation 26
Assistance
148.(1) This section applies if, after the peace obligation period has 27
ended-- 28
(a) a party who has attempted to negotiate a certified agreement (a 29
s 148 119 s 148
Industrial Relations
"negotiating party"), by a declaration of a breakdown in 1
negotiations, has asked the commission to help the parties to 2
make a certified agreement; or 3
(b) the commission becomes aware that a negotiating party is 4
engaging in industrial action that-- 5
(i) is threatening, or has caused, significant damage to the 6
economy, community or local community, or part of the 7
economy; or 8
(ii) is threatening to endanger, or has endangered, the personal 9
health, safety or welfare of the community or part of it. 10
(2) To help the parties to reach agreement, the commission has the 11
conciliation powers it would have under section 230 if that section applied to 12
certified agreement negotiations instead of to industrial disputes. 13
14
Example--
15
The commission might help the parties to--
16
· develop and consider options and processes
17
· negotiate in good faith.
(3) Also, the commission may make orders to-- 18
(a) promote the efficient conduct of negotiations; or 19
(b) ensure the parties negotiate in good faith; or 20
(c) otherwise help the parties to negotiate the agreement. 21
(4) In particular, the commission may order a party to take, or not to take, 22
specified action. 23
(5) In deciding what orders to make, the commission must consider the 24
conduct of each of the parties. 25
(6) If 2 or more employee organisations are involved in the negotiations 26
or proposed negotiations, the commission may order that the organisations 27
be represented, for conciliating the matter, by a single person or group of 28
persons authorised by the organisations to represent them (whether 29
generally or for the particular negotiations). 30
(7) Subsection (6) does not limit subsection (2). 31
s 149 120 s 149
Industrial Relations
if conciliation unsuccessful 1
Arbitration
149.(1) This section applies if-- 2
(a) the commission considers conciliation has not been successful 3
because industrial action-- 4
(i) has been protracted; or 5
(ii) is threatening, or has caused, significant damage to-- 6
(A) the economy or local community, or part of the 7
economy; or 8
(B) a single enterprise; or 9
(C) employees; or 10
(iii) is threatening to endanger, or has endangered, the personal 11
health, safety or welfare of the community or part of it; or 12
(b) the commission considers it is not likely that further conciliation 13
will result in the matter being settled within a reasonable time, 14
considering, among other things, the history of industrial relations 15
in the enterprise or industry to which the proposed agreement is to 16
relate; or 17
(c) all the negotiating parties consider conciliation has been 18
unsuccessful and ask the commission to determine the matter by 19
arbitration. 20
(2) To determine the matter by arbitration-- 21
(a) the commission has the arbitration powers that it would have 22
under section 23030 if that section applied to certified agreement 23
negotiations instead of industrial disputes; and 24
(b) the commission may-- 25
(i) give directions or make orders of an interlocutory nature; or 26
(ii) order that section 17431 not apply to industrial action 27
organised, or engaged in, by a negotiating party from the 28
making of the order until the commission determines the 29
30 Section 230 (Action on industrial dispute)
31 Section 174 (Protected industrial action)
s 150 121 s 150
Industrial Relations
matter by arbitration. 1
(3) In exercising the arbitration powers, the commission must consider at 2
least the following-- 3
(a) the matters that are at issue; 4
(b) the merits of the case; 5
(c) the interests of the negotiating parties; 6
(d) the public interest, and to that end must consider-- 7
(i) the objects of this Act; and 8
(ii) the likely effects of the commission's determination on the 9
community, economy, industry generally and on the 10
particular enterprise or industry concerned; 11
(e) the extent to which the negotiating parties have negotiated in good 12
faith. 13
(4) The full bench may establish principles about the arbitration of 14
certified agreements. 15
(5) After the principles have been established, the commission must 16
exercise its power to arbitrate in a way that is consistent with the principles. 17
(6) Unless all the negotiating parties agree, the commission as constituted 18
for the conciliation can not exercise the arbitration powers mentioned in this 19
section. 20
made under s 149 21
Determinations
150.(1) A determination under section 149 must specify a date, of no 22
later than 3 years after the date on which the determination is made, as its 23
nominal expiry date. 24
(2) Subject to this section, the determination operates at all times after it 25
commences and can not be amended. 26
(3) The determination has effect subject to any conditions specified in it. 27
(4) Before the determination's nominal expiry date has passed, the 28
commission must not revoke the determination unless satisfied-- 29
(a) the employer and the 1 or more organisations, or a majority of the 30
s 151 122 s 151
Industrial Relations
employees, who are bound by the determination have agreed to 1
the revocation (for example, because they propose to make an 2
agreement under division 132); and 3
(b) the revocation would not be against the public interest. 4
(5) After the determination's nominal expiry date-- 5
(a) the employer, or an organisation, bound by the determination; or 6
(b) a majority of the employees to whom the determination applies; 7
may give notice to all of the employees, or other employees, to whom the 8
determination applies and persons, or other persons, who are bound by the 9
determination and to the commission, stating that the determination is 10
revoked with effect from a specified day. 11
(6) The specified day must be at least 28 days after-- 12
(a) the day on which the notice is given; or 13
(b) if it is given to different persons on different days--the day on 14
which it is last given. 15
to be repeated if proposed agreement is amended 16
Steps
151.(1) If a proposed agreement is amended for any reason, the steps in 17
section 144(2) and (3)33 must be taken again for the agreement as amended. 18
(2) If the agreement is being amended only by adding an employer (a 19
"new employer") as a party to the agreement, the steps need only be taken 20
in relation to the new employer's employees. 21
(3) However, the steps need not be taken if the commission is satisfied 22
the proposed agreement was amended only-- 23
(a) for a formal or clerical reason; or 24
(b) in another way that does not adversely affect a relevant 25
employee's interests. 26
32 Division 1 (Making agreements)
33 Section 144 (What is to be done when an agreement proposed)
s 152 123 s 155
Industrial Relations
as to requested representation 1
Certificate
152.(1) An employee organisation may apply to the registrar for a 2
certificate stating that an employee has requested the organisation, under 3
section 144, to represent the employee in negotiating with the employer 4
about a proposed agreement. 5
(2) An employer may apply to the registrar for a certificate stating that the 6
employer need not negotiate with an employee organisation about a 7
proposed agreement because of a circumstance mentioned in section 144(4). 8
(3) A certificate must identify the organisation, the employer and the 9
proposed agreement. 10
(4) A certificate must not identify any of the employees concerned. 11
(5) The certificate is, for all purposes of this Act, evidence of the matters 12
stated in it. 13
2--Certifying agreements 14
Division
for applying for certification 15
Time
153. An application for the commission to certify an agreement must be 16
made within 21 days after the day on which the agreement is signed by or 17
for all the parties. 18
of hearing 19
Notice
154. The registrar must, at least 7 days before an application for 20
certification of an agreement is to be heard, place a notice in the registry 21
detailing-- 22
(a) the names of the parties to the agreement; and 23
(b) the relevant or designated award; and 24
(c) the hearing date. 25
of employee organisation to be heard 26
Right
155.(1) All relevant employee organisations are entitled to be heard on an 27
s 156 124 s 156
Industrial Relations
application for the certification of an agreement. 1
(2) As soon as practicable after the application is made, the commission 2
must notify all relevant employee organisations that-- 3
(a) the application has been made; and 4
(b) the organisation is entitled to be heard on the application. 5
(3) This section does not affect another right of an employee 6
organisation, or anyone else, to be heard on or intervene in an application. 7
(4) In this section-- 8
"relevant employee organisation" means an employee organisation that-- 9
(a) is a party to an award or industrial agreement that binds the 10
employer, or would bind the employer apart from an award under 11
the Commonwealth Act; or 12
(b) if there is no award or agreement that binds, or would bind, the 13
employer--is entitled to represent the industrial interests of the 14
relevant employees. 15
an agreement 16
Certifying
156.(1) The commission must certify the agreement if, and must not 17
certify the agreement unless, it is satisfied-- 18
(a) the things required by sections 143, 144 and 14534 were done, 19
and in particular, the terms of the agreement were explained in a 20
way that was appropriate, having regard to the persons' particular 21
circumstances and needs; and 22
23
Examples of persons with particular circumstances and needs--
24
1. Women
25
2. Persons from a non-English speaking background
26
3. Young persons
27
4. Persons with limited literacy or numeracy skills.
34 Sections 143 (Proposed parties to be advised when agreement is proposed), 144
(What is to be done when an agreement is proposed) and 145 (Negotiations for
project agreements)
s 156 125 s 156
Industrial Relations
(b) the employer did not coerce, or attempt to coerce, an employee-- 1
(i) not to make a request mentioned in section 144(2)(c); or 2
(ii) to withdraw the request; and 3
(c) the agreement is in writing and signed by or for all the parties; and 4
(d) the agreement includes procedures for preventing and settling 5
disputes; and 6
(e) the agreement specifies a nominal expiry date that is-- 7
(i) for a project agreement--the date no later than the date on 8
which the project ends; and 9
(ii) for another agreement--a date no later than 3 years after the 10
date on which the agreement will come into operation; and 11
(f) the agreement contains, or is accompanied by, information 12
prescribed under a regulation; and 13
(g) a valid majority of the relevant employees employed at the time 14
approved the agreement; and 15
(h) the agreement passes the no-disadvantage test; and 16
(i) for a project agreement--each employee organisation that has 17
given notice of wanting to be party to the agreement under 18
section 143(4), and that has not withdrawn as a party under 19
section 145(3), is a party to the agreement; and 20
(j) for an agreement to be made with an employee organisation, other 21
than an agreement for a new business-- 22
(i) each employee organisation that is a party to the award or 23
industrial agreement that binds the employer, or would bind 24
the employer apart from an award under the Commonwealth 25
Act, is a party to the agreement; or 26
(ii) if no award or industrial agreement binds the 27
employer--each employee organisation that is entitled to 28
represent the industrial interests of the relevant employees is 29
a party to the agreement; and 30
(k) for an agreement for a new business-- 31
(i) the agreement was made before the employment of any of 32
s 157 126 s 157
Industrial Relations
the persons in the new business at the new workplace whose 1
employment will be subject to the agreement; and 2
(ii) the agreement has been made with 1 or more employee 3
organisations that are entitled to represent the industrial 4
interests of the persons. 5
(2) Subsection (1)(j) does not apply if the commission is satisfied an 6
employee organisation mentioned in subsection (1)(j)-- 7
(a) has been given the opportunity to be a party to the agreement, but 8
does not want to be a party; or 9
(b) has no members who are to be bound by the agreement. 10
commission to refuse to certify an agreement 11
When
157.(1) The commission must refuse to certify an agreement if it 12
considers that a provision of the agreement is inconsistent with-- 13
(a) a provision of-- 14
(i) chapter 2, part 5; or 15
(ii) chapter 3; or 16
(iii) chapter 4;35 or 17
(b) an order by the commission under any of those provisions; or 18
(c) an injunction granted by the commission under any of those 19
provisions. 20
(2) The commission must refuse to certify an agreement if satisfied-- 21
(a) the employer has, in connection with negotiating the agreement, 22
contravened-- 23
(i) section 170; or 24
(ii) chapter 4;36 or 25
35 Chapter 2, part 5 (Equal remuneration for work of equal or comparable value)
Chapter 3 (Dismissals)
Chapter 4 (Freedom of association)
36 Section 170 (Amendment if discrimination between unionists and non-unionists)
Chapter 4 (Freedom of association)
s 158 127 s 158
Industrial Relations
(b) the employer has caused an entity to engage, in connection with 1
negotiations for an agreement, in conduct that, had the employer 2
engaged in the conduct, would be a contravention by the employer 3
of-- 4
(i) section 170; or 5
(ii) chapter 4; or 6
(c) an entity has, for the employer-- 7
(i) engaged in conduct mentioned in paragraph (b); or 8
(ii) caused another entity to engage in the conduct. 9
(3) Subsection (2) does not apply if the commission is satisfied the 10
contravention or conduct, and its effects, have been fully remedied. 11
(4) The commission must refuse to certify an agreement if it considers a 12
provision of the agreement is a discriminatory provision. 13
(5) The commission must refuse to certify an agreement if-- 14
(a) the agreement applies only to a group or category of employees; 15
and 16
(b) the commission considers the agreement defines the group or 17
category in a way that results in the employees not being subject 18
to the agreement, if it would be reasonable for the employees to 19
be subject to the agreement, having regard to-- 20
(i) the nature of the work performed by the employees whose 21
employment is not subject to the agreement; and 22
(ii) the organisational and operational relationships between the 23
group or category and the rest of the employees; and 24
(c) the commission considers it unfair that the employment of those 25
employees is not subject to the agreement. 26
options open to commission instead of refusing to certify 27
Other
agreement 28
158.(1) If, under section 156 or 157, the commission has grounds to 29
refuse to certify an agreement-- 30
(a) the commission may accept an undertaking from 1 or more of the 31
s 159 128 s 159
Industrial Relations
persons who made the agreement in relation to the operation of 1
the agreement and, if satisfied the undertaking meets the 2
commission's concerns, certify the agreement; and 3
(b) before refusing to certify the agreement, the commission must 4
give the persons who made the agreement an opportunity to take 5
action that may be necessary to enable the commission to certify 6
the agreement. 7
(2) If an undertaking is not complied with, the commission, after giving 8
the persons who made the agreement an opportunity to be heard, may-- 9
(a) order the 1 or more persons who gave the undertaking to comply 10
with it; or 11
(b) terminate the agreement. 12
(3) If-- 13
(a) after doing the things required or allowed by subsection (1), the 14
commission is still required to refuse to certify the agreement; and 15
(b) it is so required only because of an inconsistency mentioned in 16
section 157(1); 17
the commission may conciliate the industrial matter concerned with a view 18
to helping the persons concerned to take the action necessary to enable the 19
commission to certify the agreement. 20
for preventing and settling disputes 21
Procedures
159. The procedures for preventing and settling disputes contained in a 22
certified agreement may, with the commission's approval, authorise the 23
commission to settle a dispute.37 24
37 Also see section 230 (Action on industrial dispute) for commission's powers to
prevent or settle industrial disputes.
s 160 129 s 161
Industrial Relations
Division 3--No-disadvantage test 1
an agreement passes the no-disadvantage test 2
When
160.(1) An agreement passes the no-disadvantage test if it does not 3
disadvantage employees in relation to their employment conditions. 4
(2) An agreement disadvantages employees only if the commission 5
considers it would result in a reduction in the employees' entitlements or 6
protections. 7
(3) Subsection (2) applies subject to section 161 and 162. 8
(4) Subsection (2) does not apply if the commission considers that, in the 9
context of the employment conditions considered as a whole, the reduction 10
is not against the public interest. 11
12
Example of subsection (4)--
13
The making of the agreement is part of a reasonable strategy to deal with a
14
short-term crisis in, and to help in the revival of, the single business or part.
(5) If the president considers exceptional circumstances exist, the 15
president may require the registrar to give the commission a report 16
comparing the agreement with the employee's entitlements or protections. 17
(6) In this section-- 18
"entitlements or protections" means the entitlements or protections 19
under-- 20
(a) a relevant award, designated award, industrial agreement, order 21
under part 5; or 22
(b) chapter 2, including as reviewed by a general ruling of the full 23
bench. 24
case--employee eligible for supported wage system 25
Special
161.(1) This section applies if a certified agreement provides for the 26
payment of wages to an employee who is eligible for the supported wage 27
system at a rate not less than the rate set in accordance with that system for 28
the employee. 29
(2) The agreement does not disadvantage the employee in relation to the 30
s 162 130 s 162
Industrial Relations
employee's employment conditions only because of the reduction of the 1
employee's wages. 2
case--employee undertaking approved apprenticeship or 3
Special
traineeship 4
162.(1) This section applies if-- 5
(a) a certified agreement provides for the payment of wages to an 6
employee undertaking approved training (a "training employee") 7
in a particular occupation or work, or occupation or work similar 8
to the particular occupation or work (the "work"); and 9
(b) there is a relevant award, designated award or order providing for 10
the payment of wages to employees undertaking benchmark 11
training for the work. 12
(2) The agreement is taken to disadvantage the training employee in the 13
employee's employment conditions if the agreement provides for the 14
payment of wages to the employee at a rate less than the rate payable to an 15
employee undertaking benchmark training (the "benchmark employee") 16
under the relevant award, designated award or order, as adjusted under 17
subsection (3). 18
(3) For subsection (2), the rate payable to a benchmark employee is to be 19
adjusted to take into account the proportionate difference, as decided by the 20
approving authority, between the productive time of a training employee and 21
the productive time of a benchmark employee. 22
(4) If the agreement adopts, as the qualification for a wage level, a 23
criterion decided by the approving authority (the "decided criterion") 24
instead of a specified criterion applying under the relevant award, designated 25
award or order (the "award criterion"), the award is taken, for this section, 26
to have effect as if the decided criterion were substituted for the award 27
criterion. 28
(5) This section does not apply to a trainee bound by-- 29
(a) the Training Wage Award--State; 30
(b) the National Training Wage Award 1994. 31
(6) In this section-- 32
s 163 131 s 164
Industrial Relations
"benchmark training" means training for an apprentice or trainee in a 1
particular trade, occupation or work if the trade, occupation or work is 2
recognised under an award or under an order made under 3
section 137.38 4
designated awards 5
Deciding
163.(1) This section applies if-- 6
(a) an employer or organisation of employees proposes to make a 7
certified agreement; and 8
(b) there is no relevant award for some or all of the persons to whom 9
the agreement will apply. 10
(2) The employer or organisation must apply to the commission for a 11
decision under subsection (3). 12
(3) On application, the commission must decide that an award (regulating 13
employment conditions of employees engaged in a similar kind of work as 14
the person under the proposed agreement) is appropriate for deciding 15
whether the agreement passes the no-disadvantage test. 16
(4) The commission must inform the employer or organisation in writing 17
of its decision. 18
Division 4--Effect of certified agreements 19
a certified agreement is in operation 20
When
164.(1) A certified agreement starts operating when it is certified. 21
(2) The agreement continues to operate until-- 22
(a) after its nominal expiry date, it is replaced by another certified 23
38 Section 137 (Order setting minimum wages and conditions)
s 165 132 s 166
Industrial Relations
agreement; or 1
(b) it is terminated under section 158, 171, 172 or 173.39 2
agreement's effect on awards, agreements or orders 3
Certified
165.(1) While a certified agreement operates, it prevails, to the extent of 4
any inconsistency, over an award or industrial agreement or an order made 5
under section 137. 6
(2) While a project agreement operates, it operates to the exclusion of any 7
other certified agreement or QWA. 8
ersons bound 9
P
166.(1) A certified agreement binds-- 10
(a) the employer-- 11
(i) for an agreement made by an organisation of employers for 12
a project--for whom the agreement was made; or 13
(ii) who made the agreement; and 14
(b) all persons who are, while the agreement operates, relevant 15
employees; and 16
(c) if the agreement is made with 1 or more employee 17
organisations--the 1 or more organisations. 18
(2) For a certified agreement made between the employees and employer, 19
the commission must decide that the agreement also binds an employee 20
organisation if-- 21
(a) before the agreement is certified, the organisation gives the 22
commission and employer notice that it wants to be bound by the 23
agreement; and 24
(b) the organisation satisfies the commission that-- 25
39 Section 158 (Other options open to commission instead of refusing to certify
agreement), 171 (Other options open to commission instead of refusing to
approve amendment of agreement), 172 (Terminating certified agreement on or
before its nominal expiry date) or 173 (Terminating agreement after its nominal
expiry date)
s 167 133 s 167
Industrial Relations
(i) the organisation has at least 1 member-- 1
(A) whose employment will be subject to the agreement; 2
and 3
(B) who asked the organisation to give the notice; and 4
(ii) the organisation-- 5
(A) is a party to an award or industrial agreement that binds 6
the employer, or would bind the employer apart from 7
an award under the Commonwealth Act; or 8
(B) if there is no award or agreement that binds, or would 9
bind, the employer--is entitled to represent the 10
industrial interests of the relevant employees. 11
employers bound 12
Successor
167.(1) This section applies if-- 13
(a) an employer is bound by a certified agreement; and 14
(b) at a later time a new employer becomes the successor (whether or 15
not immediate) of the whole or a part of the business of the 16
employer bound by the agreement. 17
(2) From the later time-- 18
(a) the new employer is bound by the certified agreement, to the 19
extent it relates to the whole or part of the business; and 20
(b) the previous employer stops being bound by the certified 21
agreement, to the extent it relates to the whole or part of the 22
business; and 23
(c) a reference in this part to the employer includes a reference to the 24
new employer, and ceases to refer to the previous employer, to 25
the extent the context relates to the whole or part of the business. 26
s 168 134 s 169
Industrial Relations
Division 5--Extending, amending or terminating certified agreements 1
a certified agreement 2
Extending
168.(1) On or before the nominal expiry date of a certified agreement, the 3
following persons may apply to the commission to extend a certified 4
agreement's nominal expiry date-- 5
(a) if 1 or more organisations are bound by the agreement--the 6
employer and the 1 or more organisations; 7
(b) otherwise--the employer. 8
(2) However, the nominal expiry date can not be extended beyond-- 9
(a) for a project agreement--the date on which the project ends; or 10
(b) for another agreement--3 years after the date on which the 11
agreement came into operation. 12
(3) The extension has no effect unless the commission approves it. 13
(4) The commission must approve the extension if, and must not 14
approve the extension unless, satisfied a valid majority of the relevant 15
employees at the time approved the extension. 16
(5) The extension takes effect when the commission's approval takes 17
effect. 18
(6) This section does not apply to-- 19
(a) an agreement made with an employee organisation for employees 20
proposed to be employed in a new business; or 21
(b) an agreement that was taken to pass the no-disadvantage test 22
under section 160.40 23
a certified agreement 24
Amending
169.(1) This section does not apply to an amendment of the parties to the 25
agreement, other than in a multi-employer agreement (a "multi-employer 26
amendment"). 27
40 Section 160 (When an agreement passes the no-disadvantage test)
s 169 135 s 169
Industrial Relations
(2) The following persons may apply to the commission to amend a 1
certified agreement-- 2
(a) if 1 or more organisations are bound by the agreement--the 3
employer and the 1 or more organisations; 4
(b) for a multi-employer amendment--the person who wants to 5
become a party to the agreement (the "new employer"); 6
(c) otherwise--the employer. 7
(3) The commission must approve the amendment if, and only if, 8
satisfied-- 9
(a) the amendment has been approved by-- 10
(i) for a multi-employer amendment-- 11
(A) a valid majority of the new employer's employees 12
whose employment will be subject to the amended 13
agreement; and 14
(B) the other parties to the agreement, or their 15
representative; or 16
(ii) for any other amendment--a valid majority of the relevant 17
employees at the time; and 18
(b) the commission would be required to certify the agreement as 19
amended if it were an agreement whose certification was applied 20
for under this part. 21
(4) In applying subsection (3)(b)-- 22
(a) a requirement about a majority of persons making or approving 23
the agreement is taken to be satisfied; and 24
(b) section 15841 is to be disregarded. 25
(5) The amendment takes effect when the commission's approval takes 26
effect. 27
(6) The commission may, on application by a person bound by a certified 28
agreement, amend a certified agreement-- 29
41 Section 158 (Other options open to commission instead of refusing to certify
agreement)
s 170 136 s 170
Industrial Relations
(a) to remove ambiguity; or 1
(b) to include, omit or amend a term, however specified, that allows 2
an employer to stand-down an employee; or 3
(c) in another way, if-- 4
(i) the following persons have agreed to the amendment-- 5
(A) for an agreement between the employer and an 6
employee organisation--the employer and organisation; 7
(B) for an agreement between the employer and 8
employees--the employer and a valid majority of the 9
relevant employees at the time; and 10
(ii) the commission is satisfied the amendment does not 11
disadvantage the relevant employees; and 12
(iii) the commission is satisfied exceptional circumstances have 13
arisen in the workplace that necessitate the amendment. 14
(7) A certified agreement may be amended only under-- 15
(a) this section (including as it applies under section 170); or 16
(b) section 168; or 17
(c) section 171. 18
if discrimination between unionists and non-unionists 19
Amendment
170.(1) This section applies if-- 20
(a) 1 or more employees whose employment is not subject to the 21
agreement ask the employer to-- 22
(i) amend the agreement so that their employment is subject to 23
the agreement; and 24
(ii) seek the approval of the commission for the amendment 25
under section 169; and 26
(b) their employment would be subject to the agreement if-- 27
(i) they were members of an employee organisation or of a 28
particular employee organisation; or 29
s 171 137 s 172
Industrial Relations
(ii) they were not members of an employee organisation or of a 1
particular employee organisation. 2
(2) The employer must seek the commission's approval to amend the 3
agreement in accordance with the request. 4
(3) The commission must disregard section 169(3)(a) in deciding 5
whether to approve the amendment. 6
options open to commission instead of refusing to approve 7
Other
amendment of agreement 8
171.(1) If, for section 170, the commission is not satisfied as required 9
under section 169(3)-- 10
(a) before refusing to approve the amendment, it must give the 11
persons who amended the agreement an opportunity to take action 12
necessary to enable the commission to approve the amendment; 13
or 14
(b) it may accept an undertaking from 1 or more of the persons who 15
amended the agreement in relation to the operation of the 16
agreement as amended and, if satisfied the undertaking meets the 17
commission's concerns, approve the amendment. 18
(2) If an undertaking is not complied with, the commission, after giving 19
the persons who amended the agreement an opportunity to be heard, may-- 20
(a) order the 1 or more persons who gave the undertaking to comply 21
with the undertaking; or 22
(b) undo any effect of the amendment; or 23
(c) terminate the amendment. 24
certified agreement on or before its nominal expiry date 25
Terminating
172.(1) On or before a certified agreement's nominal expiry date, the 26
following persons may terminate the agreement by notice-- 27
(a) if 1 or more organisations are bound by the agreement--the 28
employer and the 1 or more organisations; 29
(b) otherwise--the employer. 30
s 173 138 s 174
Industrial Relations
(2) The commission must approve the termination if, and only if, 1
satisfied a valid majority of the relevant employees at the time approve its 2
termination. 3
(3) The termination takes effect when the commission's approval takes 4
effect. 5
agreement after its nominal expiry date 6
Terminating
173.(1) After a certified agreement's nominal expiry date, the following 7
persons may apply to the commission to terminate a certified agreement-- 8
(a) the employer; 9
(b) a valid majority of the relevant employees; 10
(c) an employee organisation that is bound by the agreement and that 11
has at least 1 member who is a relevant employee. 12
(2) If the agreement does not provide for the way it may be terminated 13
after the agreement's nominal expiry date has passed, the person who 14
intends to apply to terminate it must give all other persons bound by the 15
agreement notice of the intention. 16
(3) The commission must approve the termination if, and only if, 17
satisfied-- 18
(a) for an agreement that provides that it may be terminated if certain 19
conditions are met--the conditions have been met; or 20
(b) for an agreement that does not provide for the way it may be 21
terminated--it is in the public interest to terminate the agreement. 22
(4) The termination takes effect when the commission's approval takes 23
effect. 24
6--Industrial action 25
Division
industrial action 26
Protected
174.(1) This section applies to industrial action that is organised, or 27
engaged in, by a protected person or the employer for the purpose of-- 28
(a) supporting or advancing claims made in relation to a proposed 29
s 174 139 s 174
Industrial Relations
agreement; or 1
(b) responding to industrial action by the employer or the relevant 2
employees. 3
(2) An action for the industrial action taken after the peace obligation 4
period does not lie under any law, unless the industrial action has involved 5
or is likely to involve-- 6
(a) personal injury; or 7
(b) wilful or reckless destruction of, or damage to, property; or 8
(c) the unlawful taking, keeping or use of property. 9
(3) However, subsection (2) applies to-- 10
(a) a strike by a protected person, only if the protected person has 11
genuinely tried to reach agreement before the strike starts; and 12
(b) a lockout by an employer, only if the employer has genuinely 13
tried to reach agreement before the lockout starts. 14
(4) Despite subsection (2), an action for defamation may be brought in 15
relation to anything that happened during the industrial action. 16
(5) If the employer lawfully locks out an employee, the employer may 17
refuse to pay the employee remuneration for the period of the lockout. 18
(6) The employer can not lock out an employee unless the continuity of 19
the employee's employment, for the purposes prescribed under a regulation, 20
is not affected by the lockout. 21
(7) In this section-- 22
"protected person" means-- 23
(a) an employee organisation that is a negotiating party; or 24
(b) an officer or employee of the employee organisation acting in that 25
capacity; or 26
(c) an employee who is a negotiating party or a member of the 27
employee organisation. 28
s 175 140 s 176
Industrial Relations
of industrial action to be given 1
Notice
175.(1) Section 174(2) does not apply to industrial action unless the 2
person intending to take the action gives all of the negotiating parties-- 3
(a) if the action is in response to, and is taken after the start of, 4
industrial action by another negotiating party in relation to a 5
proposed agreement--written notice of the intended action; or 6
(b) otherwise--at least 3 working days written notice of the intended 7
action. 8
(2) However, an employer who is negotiating an agreement with 9
employees may take other reasonable steps to notify the employees of the 10
intended action, instead of giving a written notice. 11
(3) A notice must state the nature of the intended action and the day when 12
it will begin. 13
(4) A notice may be given before the end of the peace obligation period if 14
the intended action does not start before the end of the period. 15
ballot about taking industrial action 16
Secret
176.(1) This section applies if the commission considers-- 17
(a) industrial action is being taken, or industrial action is threatened or 18
probable, in relation to a proposed certified agreement; and 19
(b) finding out the relevant employees' attitudes about the matters 20
giving rise to the industrial action might help-- 21
(i) to stop or prevent the industrial action; or 22
(ii) to settle the matters. 23
(2) The commission may order that a vote of employees be taken by 24
secret ballot42 (with or without a provision for absent voting), in accordance 25
with the commission's directions, to find out their attitudes about the 26
matters. 27
(3) After an order is made, the organising of, or engaging in, industrial 28
action by the employee organisation or employees is not protected industrial 29
42 See section 285 (Conducting a secret ballot)
s 177 141 s 177
Industrial Relations
action unless-- 1
(a) the ballot has been taken; and 2
(b) the industrial action has been approved by a majority of the valid 3
votes cast in the ballot. 4
(4) The commission must revoke the order if after an order is made, but 5
before the vote is taken, the commission forms the view that the ballot 6
should not proceed because it has satisfied itself that-- 7
(a) the matters have been, or are about to be, settled; or 8
(b) the industrial action has stopped or been prevented, or is about to 9
stop or be prevented. 10
(5) In subsection (3)-- 11
"organisation" includes-- 12
(a) a member of the organisation; and 13
(b) an officer or employee of the organisation acting in that capacity. 14
action must be properly authorised 15
Industrial
177.(1) Section 174 does not apply to industrial action engaged in by 16
members of an employee organisation that is a negotiating party unless, 17
before the industrial action begins-- 18
(a) the industrial action is properly authorised by the organisation's 19
management committee or someone authorised by the committee 20
to authorise the industrial action; and 21
(b) if the organisation's rules state the way industrial action is to be 22
authorised--the industrial action is properly authorised under the 23
rules; and 24
(c) notice of the giving of the authorisation is given to the registrar. 25
(2) Industrial action is taken to be properly authorised under an employee 26
organisation's rules even though a technical breach has happened in 27
authorising the industrial action, if the person who committed the breach 28
acted in good faith. 29
(3) Examples of a technical breach in authorising industrial action 30
include-- 31
s 178 142 s 179
Industrial Relations
(a) a contravention of the organisation's rules; and 1
(b) an error or omission in complying with this Act; and 2
(c) participation, by a person not eligible to do so, in the making of a 3
decision by a management committee, or by members, of the 4
organisation. 5
(4) Industrial action is taken to have been properly authorised under an 6
employee organisation's rules, and to have been authorised before the 7
industrial action began, unless-- 8
(a) the commission declares in proceedings that the industrial action 9
was not properly authorised under the rules; and 10
(b) the proceedings were brought in the commission within 6 months 11
after the notice was given to the registrar under subsection (1)(c). 12
(5) So far as an employee organisation's rules specify the way in which 13
industrial action under this division is to be authorised, the rules do not 14
contravene section 43543 unless the way specified contravenes that section. 15
protection if certification application not timely 16
No
178. Industrial action is not protected by section 174 unless an application 17
to the commission to certify an agreement is made within 21 days after the 18
day when the agreement is signed by or for all the parties. 19
not to dismiss employee for engaging in protected industrial 20
Employer
action 21
179.(1) An employer must not-- 22
(a) dismiss an employee, injure an employee in his or her 23
employment or change an employee's position to the employee's 24
prejudice; or 25
(b) threaten to dismiss an employee, injure an employee in his or her 26
employment or change an employee's position to the employee's 27
prejudice; 28
43 Section 435 (General restrictions)
s 180 143 s 180
Industrial Relations
wholly or partly because the employee is proposing to engage, is engaging, 1
or has engaged, in protected industrial action. 2
(2) Subsection (1) does not apply to any of the following actions taken by 3
the employer-- 4
(a) standing-down the employee; 5
(b) refusing to pay the employee if, under common law, the 6
employer is permitted to do so because the employee has not 7
performed work as directed; 8
(c) action of the employer that is itself protected industrial action. 9
(3) In proceedings under section 183 44 for an alleged contravention of 10
subsection (1), it is to be presumed, unless the employer proves otherwise, 11
that the alleged conduct of the employer was carried out wholly or partly 12
because the employee was proposing to engage, was engaging, or had 13
engaged, in protected industrial action. 14
if employee dismissed etc. for engaging in protected 15
Remedies
industrial action 16
180.(1) If an employer contravenes section 179(1), the commission may 17
order the employer-- 18
(a) if the contravention was constituted by dismissing an 19
employee--to reinstate the employee to the position the employee 20
occupied immediately before the dismissal or re-employ the 21
employee in a position at least as favourable as that position; and 22
(b) to pay the employee dismissed, injured or prejudiced, 23
compensation for loss suffered because of the dismissal, injury or 24
prejudice. 25
(2) The rights of and relating to reinstatement and re-employment that are 26
conferred on an employee by this section do not limit any other rights of the 27
employee. 28
44 Section 183 (Penalties for contravening penalty provisions)
s 181 144 s 182
Industrial Relations
industrial action must not be taken 1
When
181.(1) This section applies to-- 2
(a) a certified agreement from when it starts operating until its 3
nominal expiry date has passed; and 4
(b) a determination under section 14945 while it operates. 5
(2) The following persons must not engage in industrial action for the 6
purpose of supporting or advancing claims against the employer in relation 7
to the employment of employees whose employment is subject to the 8
agreement or determination-- 9
(a) an employee whose employment is subject to the agreement or 10
determination; 11
(b) an employee organisation that is bound by the agreement or 12
determination; 13
(c) an officer or employee of the employee organisation acting in that 14
capacity. 15
(3) If the employee, organisation or officer does so, the action is not 16
protected industrial action. 17
(4) The employer must not lock out an employee from his or her 18
employment for the purpose of supporting or advancing the employer's 19
claims in relation to the employment of employees whose employment is 20
subject to the agreement or determination. 21
(5) If the employer does so, the lockout is not protected industrial action. 22
7--Penalty provisions 23
Division
provisions 24
Penalty
182. In this division, each of the following is a "penalty provision"-- 25
(a) section 170(2);46 26
45 Section 149 (Arbitration if conciliation was unsuccessful)
46 Section 170 (Amendment if discrimination between unionists and non-unionists)
s 183 145 s 183
Industrial Relations
(b) section 179(1);47 1
(c) section 181(2) or (4); 2
(d) section 185 (1) or (3).48 3
for contravening penalty provisions 4
Penalties
183.(1) A contravention of a penalty provision is not an offence. 5
(2) However, a magistrate may, by order, impose a penalty on a person 6
who contravenes a penalty provision. 7
(3) The penalty can not be more than the amount of the monetary value 8
of-- 9
(a) for a corporation--135 penalty units; or 10
(b) otherwise--27 penalty units. 11
(4) An application for an order for a contravention of section 170(2) may 12
be made by-- 13
(a) the employees making the request mentioned in section 170; or 14
(b) an employee organisation of which any of the employees making 15
the request is a member; or 16
(c) an inspector; or 17
(d) another person prescribed under a regulation. 18
(5) An application for an order for a contravention of section 179(1) may 19
be made by-- 20
(a) the employee concerned; or 21
(b) an employee organisation of which the employee is a member; or 22
(c) an inspector; or 23
47 Section 179 (Employer not to dismiss employee for engaging in protected
industrial action)
48 Sections 170 (Amendment if discrimination between unionists and
non-unionists), 179 (Employer not to dismiss employee for engaging in protected
industrial action), 181 (When industrial action must not be taken) and 185
(Coercion of persons to make, amend or terminate certified agreements etc.)
s 183 146 s 183
Industrial Relations
(d) another person prescribed under a regulation. 1
(6) An application for an order for a contravention of section 181(2) 2
or (4) may be made by-- 3
(a) an employee whose employment is subject to the certified 4
agreement concerned; or 5
(b) another person who is bound by the agreement; or 6
(c) another person prescribed under a regulation. 7
(7) An application for an order for a contravention of section 185(1) 8
or (3)49 may be made by-- 9
(a) an employee whose employment is subject to the agreement, or 10
will be subject to the proposed agreement concerned; or 11
(b) another person bound by the agreement or who will be bound by 12
the proposed agreement; or 13
(c) the person who allegedly was intended to be coerced; or 14
(d) an employee organisation of which the person is a member; or 15
(e) an inspector; or 16
(f) another person prescribed under a regulation. 17
(8) The magistrate may order that a penalty, or part of a penalty, be paid 18
to any person who may have made the application (other than an officer or 19
employee of the State or a public service officer). 20
(9) Any part of the penalty that is ordered to be paid to the person must 21
first be paid to the person. 22
(10) The remainder of the penalty must be paid to the consolidated fund. 23
49 Section 185 (Coercion of persons to make, amend or terminate certified
agreements etc.)
s 184 147 s 185
Industrial Relations
Division 8--General 1
ballot on valid majority 2
Secret
184.(1) This section applies if-- 3
(a) the commission is required under this part to be satisfied that a 4
valid majority of the persons employed at a particular time whose 5
employment is or will be subject to an agreement have made or 6
terminated the agreement, or given an approval; and 7
(b) the commission is not so satisfied. 8
(2) The commission may order a vote be taken by secret ballot 50 (with or 9
without a provision for absent voting), in accordance with the commission's 10
directions, of employees whose employment is or will be subject to the 11
agreement to find out whether they would make or terminate the agreement, 12
or give the approval. 13
(3) If a majority of the validly cast votes is in favour of making or 14
terminating the agreement, or giving the approval, the commission is taken 15
to be satisfied of the requirement. 16
(4) Before a vote is taken, the commission may revoke an order under 17
subsection (2) if it becomes satisfied that the requirement of 18
subsection (1)(a) has been met. 19
of persons to make, amend or terminate certified agreements 20
Coercion
etc. 21
185.(1) A person must not take, or refrain from taking, industrial action 22
or other action with intent to coerce someone else to agree, or not to agree, 23
to-- 24
(a) making, amending or terminating, or extending the nominal 25
expiry date of, an agreement under this part; or 26
(b) approving anything mentioned in paragraph (a). 27
(2) Subsection (1) does not apply to industrial action that is protected 28
50 See section 285 (Conducting a secret ballot) for the way a secret ballot is
conducted.
s 186 148 s 187
Industrial Relations
industrial action. 1
(3) An employer must not coerce, or attempt to coerce, an employee of 2
the employer-- 3
(a) not to make a request mentioned in section 144(2)(c)51 in relation 4
to an agreement the employer proposes to make; or 5
(b) to withdraw the request. 6
(4) In this section-- 7
"take or refrain from taking" includes threaten to take or refrain from 8
taking. 9
laws 10
Complementary
186.(1) This section applies to enable the Australian commission to 11
perform functions or exercise powers. 12
(2) The Commonwealth Act, part VIB (and the other provisions of that 13
Act as far as they relate to part VIB) applies as a law of the State, with any 14
amendments prescribed under a regulation. 15
ART 2--QUEENSLAND WORKPLACE 16
P
AGREEMENTS 17
Division 1--Preliminary 18
for pt 2 19
Definitions
187. In this part-- 20
"additional approval requirements" means the additional approval 21
51 Section 144 (What is to be done when an agreement is proposed)
s 187 149 s 187
Industrial Relations
requirements in section 202.52 1
"amendment agreement" see section 197. 2
"ancillary document" means any of the following-- 3
(a) an amendment agreement; 4
(b) an extension agreement; 5
(c) a termination agreement; 6
(d) a termination notice. 7
"approval notice" means an approval notice issued by the commission. 8
"bargaining agent" means a person appointed as a bargaining agent under 9
section 196. 10
"certified copy" of a document means a copy that is certified as being a 11
true copy of the document. 12
"employee" see section 188(2). 13
"employer" see section 188(2). 14
"existing employee", in relation to a QWA, means an employee who 15
signed the QWA after commencing the employment to which the 16
QWA relates. 17
"extension agreement" means an agreement to extend the nominal expiry 18
date of a QWA. 19
"file" a QWA or ancillary document means file with the registrar or chief 20
inspector. 21
"filing receipt" means a receipt issued by the registrar or chief inspector. 22
"filing requirements" means the filing requirements in section 200. 23
"new employee", in relation to a QWA, means an employee who signed 24
the QWA before, or at the time of, commencing the employment to 25
which the QWA relates. 26
"nominal expiry date" of a QWA, see section 194. 27
"party" to a QWA or ancillary document means the employer or 28
52 Section 202 (Additional approval requirements for QWA and ancillary
documents)
s 188 150 s 189
Industrial Relations
employee. 1
"period of operation" of a QWA, see section 195. 2
"QWA" see sections 188 and 207. 3
"QWA date" means the date on which the employer and employee sign 4
the QWA or, if they sign on different dates, the later of the dates. 5
"refusal notice" means a refusal notice issued by the commission under 6
section 206. 7
"relevant or designated award" means the relevant or designated award 8
that is used when applying the no-disadvantage test. 9
"required number of days" means-- 10
(a) for a new employee--5 days; or 11
(b) for an existing employee--14 days. 12
"termination agreement" see section 198(1). 13
"termination notice" see section 198(3). 14
QWAs and ancillary documents--interpretation 15
Proposed
188.(1) As far as the context permits, a reference in this part to a QWA 16
or ancillary document includes a reference to a proposed QWA or ancillary 17
document. 18
(2) In relation to a proposed QWA or ancillary document, a reference in 19
this part to the employer or employee is a reference to the person who will 20
be the employer or employee when the QWA or ancillary document starts 21
to operate. 22
and powers of commission 23
Functions
189.(1) The commission must, as far as practicable, perform its 24
functions under this part-- 25
(a) in a way that furthers the objects of this Act; and 26
(b) without undue delay; and 27
(c) in an informal way. 28
s 190 151 s 192
Industrial Relations
(2) Section 320(4)53 does not apply to the performance of the 1
commission's functions under this part. 2
Division 2--General rules about QWAs and ancillary documents 3
and ancillary documents only have effect as provided by this 4
QWAs
part 5
190.(1) A QWA or ancillary document has effect as provided by this 6
part, and not otherwise. 7
(2) In particular-- 8
(a) a QWA for a new employee has no effect before a filing receipt is 9
issued for the QWA; and 10
(b) a QWA for an existing employee has no effect before an approval 11
notice is issued for the QWA. 12
QWAs 13
Collective
191.(1) In this part, 2 or more agreements negotiated collectively may be 14
included in the same document if the same employer is a party to all the 15
agreements. 16
(2) The agreements need not be in the same terms. 17
(3) A QWA for a new employee can not be included in the same 18
document as a QWA for an existing employee. 19
Division 3--Making, amending or terminating a QWA 20
and employee may make a QWA 21
Employer
192.(1) A single employer and a single employee, other than an 22
employer and employee mentioned in subsection (3), may make a QWA 23
that deals with matters relating to the relationship between an employer and 24
employee. 25
53 Section 320 (Basis of decisions of the commission and magistrates)
s 193 152 s 193
Industrial Relations
(2) A QWA may be made before the start of employment. 1
(3) The employer of an employee employed in 1 of the following may 2
not make a QWA with the employee-- 3
(a) a department of government or part of a department; 4
(b) a public service office or part of a public service office under the 5
Public Service Act 1996; 6
(c) an agency, authority, commission, corporation, instrumentality, 7
office, or other entity, established under an Act or under State 8
authorisation for a public or State purpose; 9
(d) a part of an entity mentioned in paragraph (c); 10
(e) a registry or other administrative office of a court of the State of 11
any jurisdiction; 12
(f) the parliamentary service; 13
(g) the Governor's official residence (known as `Government 14
House') and its associated administrative unit; 15
(h) a court of the State of any jurisdiction; 16
(i) the police service to the extent that it does not include staff 17
members mentioned in the Police Service Administration 18
Act 1990, section 2.5(1)(a);54 19
(j) another entity, or part of another entity, declared under a 20
regulation for this section. 21
(4) The employer may not make a QWA with an employee who is under 22
18 years. 23
to be included in QWA 24
Matters
193.(1) The employer must ensure the QWA includes the provisions 25
about discrimination prescribed under a regulation. 26
(2) If the QWA does not in fact include the prescribed provisions about 27
discrimination, the QWA is taken to include the provisions. 28
54 Police Service Administration Act 1990, section 2.5 (Administration of staff
members)
s 194 153 s 195
Industrial Relations
(3) The employer must ensure the QWA does not include provisions that 1
prohibit or restrict disclosure of details of the QWA by either party to 2
another person. 3
(4) The employer must ensure the QWA includes a dispute resolution 4
procedure. 5
(5) If the QWA does not include a dispute resolution procedure, the 6
QWA is taken to include the model dispute resolution procedure prescribed 7
under a regulation. 8
(6) If a dispute resolution procedure confers powers on the commission 9
to prevent or settle disputes between the parties to the QWA about the 10
application or interpretation of the QWA, the commission may exercise the 11
powers. 12
(7) To avoid doubt, unless power is conferred on the commission to 13
prevent or settle disputes, the commission must not exercise arbitration 14
powers to prevent or settle a dispute between the parties to the QWA. 15
expiry date of QWA 16
Nominal
194.(1) A QWA must specify a date as its nominal expiry date. 17
(2) The date can not be more than 3 years after the QWA date. 18
(3) An employer and employee may make a written agreement (an 19
"extension agreement") that extends the nominal expiry date. 20
(4) The extended date can not be more than 3 years after the QWA date. 21
(5) The extension agreement has no effect unless a filing receipt is issued 22
for the extension agreement at least 21 days before the nominal expiry date 23
that is to be extended. 24
(6) The extension agreement takes effect on the day after an approval 25
notice is issued for the extension agreement. 26
of operation of QWA 27
Period
195.(1) A QWA for a new employee starts operating on the later of the 28
following days-- 29
(a) the day after a filing receipt is issued for the QWA; 30
s 196 154 s 196
Industrial Relations
(b) the day specified in the QWA as the starting day; 1
(c) the day the employee's employment starts. 2
(2) A QWA for a new employee stops operating at the earlier of the 3
following times-- 4
(a) the end of the day when a refusal notice is issued for the QWA; 5
(b) the time when a termination under section 19855 takes effect; 6
(c) the time when another QWA between the employer and 7
employee starts to operate. 8
(3) A QWA for an existing employee starts operating on the later of the 9
following days-- 10
(a) the day after an approval notice is issued for the QWA; 11
(b) the day specified in the QWA as the starting day. 12
(4) A QWA for an existing employee stops operating at the earlier of the 13
following times-- 14
(a) the time when a termination under section 198 takes effect; 15
(b) the time when another QWA between the employer and 16
employee starts to operate. 17
agents 18
Bargaining
196.(1) An employer or employee may appoint a person to be his or her 19
bargaining agent for the making, approval, amendment or termination of a 20
QWA. 21
22
Example--
23
An employee may appoint an employee organisation to be the employee's
24
bargaining agent.
(2) When the employer proposes the QWA, the employer must inform 25
the employee of his or her right under subsection (1). 26
(3) The appointment of a bargaining agent must be written. 27
(4) An employer or employee must not refuse to recognise a bargaining 28
55 Section 198 (Terminating a QWA)
s 197 155 s 198
Industrial Relations
agent appointed by the other party if the employer or employee has been 1
given a copy of the bargaining agent's instrument of appointment. 2
(5) An employer or employee must not coerce, or attempt to coerce, the 3
other party-- 4
(a) to appoint, or not to appoint, a particular person as a bargaining 5
agent; or 6
(b) to terminate the appointment of a bargaining agent. 7
mending a QWA 8
A
197.(1) An employer and employee may make a written agreement 9
("amendment agreement") amending a QWA. 10
(2) The amendment agreement takes effect on the later of the following 11
days-- 12
(a) the day after an approval notice is issued for the amendment 13
agreement; 14
(b) the day specified in the amendment agreement as the date it takes 15
effect. 16
(3) Section 193 applies to the QWA as amended in the same way as it 17
applied to the QWA before amendment. 18
a QWA 19
Terminating
198.(1) The employer and employee may at any time make a written 20
agreement ("termination agreement") to terminate the QWA. 21
(2) The termination agreement takes effect at the later of the following 22
times-- 23
(a) the end of the day on which an approval notice is issued for the 24
termination agreement; 25
(b) the day specified in the termination agreement as the date it takes 26
effect. 27
(3) After the nominal expiry date of a QWA, the employer or employee 28
may file a notice ("termination notice") to terminate the QWA. 29
s 199 156 s 200
Industrial Relations
(4) The termination notice takes effect at the end of 28 days after the party 1
filing the termination notice gave notice to the other party of the filing of the 2
termination notice. 3
4--Filing QWAs and ancillary documents 4
Division
QWAs and ancillary documents 5
Filing
199.(1) A QWA or ancillary document ("document") may be filed with 6
the registrar or chief inspector. 7
(2) If the registrar or chief inspector is satisfied that the filing 8
requirements for the document have been met, the registrar or chief 9
inspector must issue a filing receipt to the person who filed it. 10
(3) For a QWA, the registrar or chief inspector may issue a filing receipt 11
only if it is filed within 14 days after the QWA date. 12
(4) If the document is filed with the chief inspector, the chief inspector 13
must immediately give it to the registrar. 14
requirements 15
Filing
200.(1) The filing requirements for a QWA are-- 16
(a) the QWA must be signed and dated by each of the parties, and the 17
signatures must be witnessed; and 18
(b) the QWA must be accompanied by a declaration by the employer, 19
declaring-- 20
(i) the QWA complies with section 193; and 21
(ii) the employer gave the employee a copy of an information 22
statement at least the required number of days before the 23
employee signed the QWA. 24
(2) The chief inspector must prepare an information statement for 25
subsection (1). 26
(3) The information statement must include information about the 27
following matters, but may include other information-- 28
(a) entitlements under this Act; 29
s 201 157 s 202
Industrial Relations
(b) occupational health and safety law; 1
(c) services provided by the chief inspector; 2
(d) bargaining agents. 3
(4) The filing requirements for an amendment agreement are-- 4
(a) the agreement must be signed and dated by each of the parties, 5
and the signatures must be witnessed; and 6
(b) the agreement must be accompanied by a declaration by the 7
employer, declaring the QWA, as amended, complies with 8
section 193. 9
(5) The filing requirement for an extension agreement is the agreement 10
must be signed and dated by each of the parties, and the signatures must be 11
witnessed. 12
(6) The filing requirement for a termination agreement is the agreement 13
must be signed and dated by each of the parties, and the signatures must be 14
witnessed. 15
(7) The filing requirement for a termination notice is the notice must be 16
signed and dated by the party filing the notice, and the signature must be 17
witnessed. 18
(8) The employer must provide any other information required under a 19
regulation. 20
declaration must be accurate 21
Employer's
201. An employer must not, in a declaration filed for this part, make a 22
statement that the employer knows, or ought reasonably to know, is false or 23
misleading. 24
5--Approving QWAs and ancillary documents 25
Division
approval requirements for QWA and ancillary documents 26
Additional
202.(1) The additional approval requirements for a QWA are-- 27
s 202 158 s 202
Industrial Relations
(a) the QWA complies with section 193;56 and 1
(b) the employee received a copy of the QWA at least the required 2
number of days before signing the QWA; and 3
(c) the employer explained the effect of the QWA to the employee as 4
soon as practicable after the employee first received a copy of it; 5
and 6
(d) the employee consented to making the QWA; and 7
(e) if the employer did not offer a QWA in the same terms to all 8
comparable employees--the employer did not act unfairly or 9
unreasonably in not doing so. 10
(2) The employee may consult with, or seek advice from, anyone about 11
the QWA given to the employee under subsection (1)(b) and the copy is the 12
property of the employee. 13
(3) The additional approval requirements for an amendment agreement 14
are-- 15
(a) the QWA, as amended, complies with section 193; and 16
(b) the employee received a copy of the amendment agreement at 17
least 14 days before signing the amendment agreement; and 18
(c) the employer explained the effect of the amendment agreement to 19
the employee as soon as practicable after the employee first 20
received a copy of it; and 21
(d) the employee consented to making the amendment agreement; 22
and 23
(e) if the employer did not offer an amendment agreement in the 24
same terms to all comparable employees who also have a QWA 25
in the same terms--the employer did not act unfairly or 26
unreasonably in not doing so. 27
(4) The explanation of the effect of the QWA or amendment agreement 28
mentioned in subsection (1) or (3) must have been done in a way that was 29
appropriate, having regard to the employee's particular circumstances and 30
needs. 31
56 Section 193 (Matters to be included in QWA)
s 203 159 s 203
Industrial Relations
1
Example of employees with particular circumstances and needs--
2
1. Women
3
2. Persons from a non-English speaking background
4
3. Young persons
5
4. Persons with limited literacy or numeracy skills.
(5) The additional approval requirement for an extension agreement is 6
that the employee consented to making the extension agreement. 7
(6) The additional approval requirement for a termination agreement is 8
that the employee consented to making the termination agreement. 9
(7) In this section-- 10
"comparable employee", for a QWA, means an employee of the employer 11
who does the same kind of work as the employee who is a party to the 12
QWA. 13
pproving QWA 14
A
203.(1) The commission must approve a QWA for which a filing receipt 15
has been issued if satisfied-- 16
(a) the QWA passes the no-disadvantage test; and 17
(b) the QWA meets the additional approval requirements; and 18
(c) the QWA is not contrary to the public interest. 19
(2) If the commission has concerns about whether the QWA passes the 20
no-disadvantage test, the commission must-- 21
(a) notify the employee of the concerns; and 22
(b) the reasons for them. 23
(3) If the commission has concerns about whether the QWA passes the 24
no-disadvantage test, but the concerns are resolved by-- 25
(a) a written undertaking given by the employer and accepted by the 26
commission; or 27
(b) other action by the parties; 28
the QWA is taken to pass the no-disadvantage test. 29
s 204 160 s 204
Industrial Relations
(4) If the commission-- 1
(a) is still not satisfied the QWA passes the no-disadvantage test; but 2
(b) is satisfied that approving the QWA is not contrary to the public 3
interest; 4
the QWA is taken to pass the no-disadvantage test. 5
(5) If the commission is not satisfied the QWA meets the additional 6
approval requirements, the commission must refuse to approve the QWA. 7
(6) In considering the public interest, the commission may consider-- 8
(a) the relative bargaining power of the parties; and 9
(b) the particular circumstances and needs of low-paid employees and 10
any likely changes in award wages during the period of the 11
QWA; and 12
(c) the particular circumstances and needs of employees including 13
women, persons from a non-English speaking background, 14
young persons, apprentices, trainees and outworkers; and 15
(d) anything else the commission considers relevant to the QWA. 16
amendment agreement 17
Approving
204.(1) The commission must approve an amendment agreement for 18
which a filing receipt has been issued if satisfied-- 19
(a) the QWA, as amended, passes the no-disadvantage test; and 20
(b) the agreement meets the additional approval requirements; and 21
(c) the QWA is not contrary to the public interest. 22
(2) If the commission has concerns about whether the QWA, as 23
amended, passes the no-disadvantage test, but the concerns are resolved 24
by-- 25
(a) a written undertaking given by the employer and accepted by the 26
commission; or 27
(b) other action by the parties; 28
the QWA, as amended, is taken to pass the no-disadvantage test. 29
s 205 161 s 206
Industrial Relations
(3) If the commission-- 1
(a) is still not satisfied the QWA passes the no-disadvantage test; but 2
(b) is satisfied that approving the QWA is not contrary to the public 3
interest; 4
the QWA, as amended, is taken to pass the no-disadvantage test. 5
(4) If the commission is not satisfied the amendment agreement meets 6
the additional approval requirements, the commission must refuse to 7
approve the amendment agreement. 8
(5) In considering the public interest, the commission may consider-- 9
(a) the relative bargaining power of the parties; and 10
(b) the particular circumstances and needs of low-paid employees and 11
any likely changes in award wages during the period of the 12
agreement; and 13
(c) the particular circumstances and needs of employees including 14
women, persons from a non-English speaking background, 15
young persons, apprentices, trainees and outworkers; and 16
(d) anything else the commission considers relevant to the agreement. 17
other ancillary documents 18
Approving
205.(1) This section applies to the following ancillary documents-- 19
(a) an extension agreement; 20
(b) a termination agreement; 21
(c) a termination notice. 22
(2) The commission may approve the ancillary document only if satisfied 23
the ancillary document meets the additional approval requirements for the 24
document. 25
must issue approval or refusal notice 26
Commission
206.(1) If the commission approves a QWA or ancillary document, the 27
commission must issue an approval notice to the employer. 28
(2) If the commission refuses to approve a QWA or ancillary document, 29
s 207 162 s 209
Industrial Relations
the commission must issue a refusal notice to the employer. 1
(3) If the commission is not satisfied the QWA passes or is taken to pass 2
the no-disadvantage test, the commission must issue a notice to that effect to 3
the employee. 4
(4) In each approval or refusal notice, the commission must identify the 5
relevant or designated award that applies to the QWA. 6
taken to be included in QWAs 7
Undertakings
207. An undertaking accepted by the commission under this division is 8
taken to be included in the QWA. 9
to issue copies of approved QWAs and ancillary 10
Commission
documents 11
208. After a QWA or ancillary document is approved, the commission 12
must issue to the employer a copy of the QWA or ancillary document, as 13
approved. 14
Division 6--No-disadvantage test 15
does a QWA pass the no-disadvantage test 16
When
209.(1) A QWA passes the no-disadvantage test if it does not 17
disadvantage the employee in relation to his or her employment conditions. 18
(2) A QWA disadvantages the employee in relation to his or her 19
employment conditions only if the commission considers its approval 20
would result in a reduction in the employee's entitlements and protections. 21
(3) Subsection (2) applies subject to sections 161 and 162.57 22
(4) If the president considers exceptional circumstances exist, the 23
president may require the registrar to give the commission a report 24
comparing the QWA with the employee's entitlements and protections. 25
57 Section 161 (Special case--employee eligible for supported wage system)
Section 162 (Special case--employee undertaking approved apprenticeship or
traineeship)
s 210 163 s 211
Industrial Relations
(5) In this section-- 1
"certified agreement" means a certified agreement that, immediately 2
before the initial day of the QWA, binds the employer. 3
"entitlements and protections" means the entitlements and protections 4
under-- 5
(a) if there is a certified agreement--the certified agreement; or 6
(b) if there is no certified agreement--a relevant award, a designated 7
award, industrial agreement or an order under chapter 5, part 5;58 8
or 9
(c) chapter 2,59 including as reviewed by a general ruling of the full 10
bench. 11
case--employee eligible for supported wage system 12
Special
210.(1) This section applies if a QWA provides for the payment of 13
wages to an employee who is eligible for the supported wage system at a 14
rate not less than the rate set in accordance with that system for the 15
employee. 16
(2) The agreement does not disadvantage the employee in relation to the 17
employee's employment conditions only because of the reduction of the 18
employee's wages. 19
case--employee undertaking approved apprenticeship or 20
Special
traineeship 21
211.(1) This section applies if-- 22
(a) a QWA provides for the payment of wages to an employee 23
undertaking approved training (a "training employee") in a 24
particular occupation or work, or an occupation or work similar to 25
the particular occupation or work (the "work"); and 26
(b) there is a relevant award, designated award or order providing for 27
58 Chapter 5, part 5 (Wages and employment conditions for apprentices and
trainees)
59 Chapter 2 (General employment conditions)
s 212 164 s 212
Industrial Relations
the payment of wages to employees undertaking benchmark 1
training for the work. 2
(2) The agreement is taken to disadvantage the training employee in the 3
employee's employment conditions if the QWA provides for the payment 4
of wages to the employee at a rate less than the rate payable to an employee 5
undertaking the benchmark training (the "benchmark employee") under 6
the relevant award, designated award or order, as adjusted under 7
subsection (3). 8
(3) For subsection (2), the rate payable to a benchmark employee is to be 9
adjusted to take into account the proportionate difference, as decided by the 10
approving authority, between the productive time of a training employee and 11
the productive time of a benchmark employee. 12
(4) If the QWA adopts, as the qualification for a wage level, a criterion 13
decided by the approving authority (the "decided criterion") instead of a 14
specified criterion applying under the relevant award, designated award or 15
order (the "award criterion"), the award is taken, for this section, to have 16
effect as if the decided criterion were substituted for the award criterion. 17
(5) This section does not apply to a trainee bound by-- 18
(a) the Training Wage Award--State; 19
(b) the National Training Wage Award 1994. 20
(6) In this section-- 21
"benchmark training" means training for an apprentice or trainee in a 22
particular trade, occupation or work if the trade, occupation or work is 23
recognised under an award or under an order made under chapter 5, 24
part 5.60 25
designated awards 26
Deciding
212.(1) This section applies if-- 27
(a) an employer proposes to make a QWA with a person; and 28
(b) there is no relevant award for the person. 29
60 Chapter 5, part 5 (Wages and employment conditions for apprentices and
trainees)
s 213 165 s 214
Industrial Relations
(2) The employer must apply to the commission for a decision under 1
subsection (3). 2
(3) On application, the commission must decide that an award (regulating 3
employment conditions of employees engaged in a similar kind of work as 4
the person under the QWA) is appropriate for deciding whether the QWA 5
passes the no-disadvantage test. 6
(4) The commission must inform the employer in writing of the 7
commission's decision. 8
Division 7--Effect of QWAs 9
effect on awards, certified agreements or orders 10
QWA's
213.(1) A QWA, during its period of operation, operates to the exclusion 11
of an award, or an order made under chapter 5, part 5, that would otherwise 12
apply to the employee's employment. 13
(2) A certified agreement or a determination under section 149,61 during 14
its period of operation, prevails over a QWA to the extent of any 15
inconsistency unless the certified agreement or determination contains a 16
QWA provision. 17
(3) In this section-- 18
"QWA provision" of a certified agreement means a provision that 19
expressly allows a subsequent QWA-- 20
(a) to operate to the exclusion of the certified agreement; or 21
(b) to prevail over the certified agreement to a specified extent or to 22
the extent of any inconsistency. 23
employers bound 24
Successor
214.(1) This section applies if-- 25
(a) an employer is a party to a QWA; and 26
(b) at a later time a new employer becomes the successor (whether or 27
61 Section 149 (Arbitration if conciliation unsuccessful)
s 215 166 s 218
Industrial Relations
not immediate) of the whole or part of the business of the 1
employer who is a party to the QWA. 2
(2) From the later time-- 3
(a) the new employer replaces the employer as a party to the QWA; 4
and 5
(b) the previous employer stops being a party to the QWA, to the 6
extent it relates to the whole or part of the business; and 7
(c) a reference in this part to the employer is a reference to the new 8
employer, and ceases to refer to the previous employer, to the 9
extent the context relates to the whole or part of the business 10
must not contravene QWA 11
Parties
215. A party to a QWA must not contravene the QWA. 12
for agreements 13
Conciliation
216. The commission has the conciliation powers for a matter arising 14
under this part that it would have under section 23062 if that section applied 15
to the matter instead of to industrial disputes. 16
action by party to QWA 17
Industrial
217. During the period of operation of a QWA before its nominal expiry 18
date, a party to the QWA must not engage in industrial action in relation to 19
the employment to which the QWA relates. 20
Division 8--Penalty provisions and remedies 21
for contravening this part 22
Penalties
218.(1) A magistrate may, by order, impose a penalty on a person who 23
contravenes a penalty provision. 24
62 Section 230 (Action on industrial dispute)
s 219 167 s 220
Industrial Relations
(2) The penalty can not be more than-- 1
(a) for a corporation--135 penalty units; or 2
(b) otherwise--27 penalty units. 3
(3) An application for an order relating to a QWA or ancillary document 4
may be made by-- 5
(a) a party to the QWA or ancillary document; or 6
(b) an inspector. 7
(4) In this section-- 8
"penalty provision" means section 196(2), (3), (4) or (5), 201, 215, 217, 9
222(1), 223(1) or (2) or 224(1) or (2).63 10
for contravention of QWA 11
Damages
219.(1) A party to a QWA who suffers loss or damage because of a 12
contravention of the QWA by the other party may recover the amount of the 13
loss or damage in an Industrial Magistrates Court. 14
(2) The action must be brought within 6 years after the date on which the 15
cause of action arose. 16
to new employee for shortfall in entitlements 17
Compensation
220.(1) Subsection (3) applies if a QWA for a new employee stops 18
operating because a refusal notice was issued and the amount worked out 19
under paragraph (a) is less than the amount worked out under 20
paragraph (b)-- 21
(a) the total value of the entitlements to which the employee became 22
entitled under the QWA for the period while it was in operation; 23
(b) the total value of the entitlements to which the employee would 24
have been entitled for that period under an award or agreement, if 25
63 Section 196 (Bargaining agents), 201 (Employer's declaration must be
accurate), 215 (Parties must not contravene QWA), 217 (Industrial action by
party to QWA), 222 (Hindering QWA negotiations), 223 (Persons must not apply
duress or make false statements in connection with QWA etc.) or 224 (Employer
must give copy of documents to employee)
s 221 168 s 222
Industrial Relations
the QWA had not been made, in relation to the employment to 1
which the QWA relates. 2
(2) Subsection (3) applies if a QWA that has been approved for a new 3
employee includes an undertaking by the employer under section 20364 and 4
the amount worked out under paragraph (a) is less than the amount worked 5
out under paragraph (b)-- 6
(a) the total value of the entitlements to which the employee became 7
entitled under the QWA for the period before it was approved; 8
(b) the total value of the entitlements to which the employee would 9
have been entitled for that period if the QWA as filed, had 10
included the employer's undertaking. 11
(3) The employee is entitled to recover the shortfall from the employer in 12
the commission or an Industrial Magistrates Court. 13
njunctions 14
I
221. The commission, on application by a party to a QWA, may grant an 15
injunction requiring a person not to contravene, or to stop contravening, this 16
part. 17
Division 9--General 18
QWA negotiations 19
Hindering
222.(1) A person who is not a party to negotiations for a QWA or 20
ancillary document must not use threats or intimidation with the intention of 21
hindering the negotiations or the making of the QWA or ancillary 22
document. 23
(2) This section does not apply to conduct by or for an employee 24
organisation for the purpose of negotiating a certified agreement, if the 25
conduct is authorised by another provision of this Act. 26
(3) In this section-- 27
"party to negotiations" includes a bargaining agent. 28
64 Section 203 (Approving QWA)
s 223 169 s 226
Industrial Relations
must not apply duress or make false statements in connection 1
Persons
with QWA etc. 2
223.(1) A person must not apply duress to an employer or employee in 3
connection with a QWA or ancillary document. 4
(2) A person must not knowingly make a false or misleading statement 5
to someone else with the intention of persuading the other person to make, 6
or not to make, a QWA or ancillary document. 7
must give copy of documents to employee 8
Employer
224.(1) As soon as practicable after receiving any of the following 9
documents from the commission, registrar or chief inspector, the employer 10
must give a copy of it to the employee-- 11
(a) a filing receipt; 12
(b) an approval notice or refusal notice; 13
(c) a QWA or ancillary document, as approved. 14
(2) The employer must give the employee any other document prescribed 15
under a regulation within the period required under the regulation. 16
not permitted 17
Intervention
225. A person other than-- 18
(a) a party to a QWA; or 19
(b) a party's bargaining agent; or 20
(c) the Minister; 21
can not make submissions, or be heard, in relation to the filing, approval, 22
amendment or termination of a QWA. 23
and advice about development in making QWAs 24
Reports
226.(1) If the Minister asks, the chief executive must prepare and give to 25
the Minister a report about developments in the State in bargaining for the 26
making of QWAs. 27
(2) To enable the chief executive to prepare the report and generally to 28
s 227 170 s 228
Industrial Relations
advise the Minister, the registrar must allow access to approved QWAs and 1
ancillary documents to-- 2
(a) the chief executive; or 3
(b) the chief executive's agent. 4
5
Evidence
227.(1) The registrar may give a certified copy of an approved QWA or 6
ancillary document to a person who is or was a party to the QWA or 7
ancillary document. 8
(2) The registrar may issue a certificate stating-- 9
(a) specified QWAs or ancillary documents are the only QWAs or 10
ancillary documents that were filed, before a specified date, in 11
relation to a specified employer and employee; or 12
(b) a copy of a specified approved QWA or ancillary document was 13
issued on a specified day; or 14
(c) a filing receipt, approval notice or refusal notice was issued for a 15
specified QWA or ancillary document on a specified day. 16
(3) The certificate may be given only to a person who is or was a party to 17
the document to which the certificate relates. 18
(4) In all courts and proceedings-- 19
(a) a certified copy of an approved QWA or ancillary document is 20
evidence of the QWA or ancillary document; and 21
(b) a certificate issued by the registrar under subsection (2) is 22
evidence of the matters stated in the certificate. 23
(5) A document that purports to be a certified copy, or certificate, 24
mentioned in subsection (4) is taken to be the copy or certificate, unless the 25
contrary is proved. 26
for corporation 27
Signature
228. A QWA or ancillary document may be signed for a corporation by 28
a properly authorised officer of the corporation and need not be made under 29
the corporation's seal. 30
s 229 171 s 229
Industrial Relations
CHAPTER 7--INDUSTRIAL DISPUTES 1
ART 1--NOTICE OF INDUSTRIAL DISPUTE 2
P
of industrial dispute 3
Notice
229.(1) Subsection (2) applies if an industrial dispute-- 4
(a) exists between-- 5
(i) an employer organisation or employer; and 6
(ii) an employee organisation or employee; and 7
(b) remains unresolved after the parties have genuinely attempted to 8
settle the dispute. 9
(2) Each party to the dispute must immediately give the registrar notice 10
of the dispute. 11
(3) The notice-- 12
(a) may be given by letter, telex, fax, email, or other means of written 13
communication; and 14
(b) must state-- 15
(i) the names of the parties to the dispute; and 16
(ii) the place where the dispute exists; and 17
(iii) the subject matter of the dispute; and 18
(iv) anything else required under the rules. 19
(4) If the Minister is aware an industrial dispute exists, the Minister may 20
notify the commission or registrar of the dispute. 21
s 230 172 s 230
Industrial Relations
ART 2--ACTION FOR SETTLING INDUSTRIAL 1
P
DISPUTES 2
on industrial dispute 3
Action
230.(1) This section applies if-- 4
(a) notice of a dispute has been given by a party under section 229(2); 5
or 6
(b) notice of a dispute has been given by the Minister under 7
section 229(4) and the commission considers it is in the public 8
interest to take action under this section; or 9
(c) whether or not a notice has been given under section 229--the 10
commission considers it is in the public interest to take action 11
under this section. 12
(2) Subsection (1)(c) applies irrespective of whether the parties are 13
attempting to resolve the dispute. 14
(3) The commission may take the steps it considers appropriate for the 15
prevention or prompt settlement of the dispute, by-- 16
(a) conciliation in the first instance; and 17
(b) if the commission considers conciliation has failed and the parties 18
are unlikely to resolve the dispute--arbitration. 19
(4) Without limiting subsection (3), the commission may-- 20
(a) direct the industrial action to stop or not happen; or 21
(b) make orders, or give directions, of an interlocutory nature; or 22
(c) exercise the commission's powers under section 27765 (whether 23
or not application under that section has been made) to grant an 24
interim injunction; or 25
(d) make another order or exercise another power the commission 26
considers appropriate for the prevention or prompt settlement of 27
the dispute. 28
65 Section 277 (Power to grant injunctions)
s 231 173 s 232
Industrial Relations
(5) For proceedings for the dispute-- 1
(a) the commission may name a party to the dispute as having 2
carriage of the proceedings; and 3
(b) the party named has the carriage of the proceedings accordingly. 4
(6) This section does not affect the operation of an industrial instrument 5
that imposes a duty on a party to the instrument in relation to industrial 6
disputes. 7
by commission 8
Mediation
231. The commission may act as mediator in an industrial cause, whether 9
or not it is within the jurisdiction of the commission-- 10
(a) on the request of the parties directly involved in the cause; or 11
(b) if the commissioner is satisfied mediation is desirable in the 12
public interest. 13
conference 14
Compulsory
232.(1) This section applies if the commission, when taking action under 15
section 230, considers that holding a conference is desirable to prevent or 16
settle the industrial dispute. 17
(2) The commission may, by attendance notice, require a person to attend 18
a conference at a stated time and place. 19
(3) A person may be required to attend even though not directly involved 20
in the dispute, if the commission considers the person's presence would be 21
conducive to the prevention or prompt settlement of the dispute. 22
(4) A person required to attend must-- 23
(a) attend the conference at the stated time and place; and 24
(b) continue to attend as directed by the commission. 25
Maximum penalty--40 penalty units. 26
(5) The person is entitled to be paid by the State an amount certified by 27
the commission as reasonable compensation for the person's expenses and 28
loss of time. 29
s 233 174 s 233
Industrial Relations
(6) At the commission's discretion, a conference may be held-- 1
(a) in public or private; or 2
(b) partly in public and partly in private. 3
commission's orders 4
Enforcing
233.(1) The commission may direct an order about an industrial dispute 5
to-- 6
(a) an organisation; or 7
(b) a person in a capacity as an officer or agent of an organisation; or 8
(c) any other person. 9
(2) If an order may be directed to an organisation or a person, the 10
commission may direct the order to the person only after considering 11
whether it would be more appropriate to direct the order to the organisation. 12
(3) An order must-- 13
(a) if the order is made against a person--state the person's name; 14
and 15
(b) state a time for complying with the order; and 16
(c) direct any of the following persons to file an affidavit with the 17
registrar within a stated time-- 18
(i) the organisation or person; 19
(ii) the party to the proceedings who sought the order; 20
(iii) any other party to the proceedings the commission considers 21
appropriate. 22
(4) An affidavit under subsection (3)(c) must state whether there has 23
been compliance with the order and, if the order has not been complied 24
with, the steps the person is aware of that have been taken to comply. 25
(5) The commission may extend a time stated under subsection (3)(b) 26
or (c). 27
(6) At the end of the time stated for filing an affidavit, or the time as 28
extended by the commission, the registrar must-- 29
s 234 175 s 234
Industrial Relations
(a) examine all affidavits filed; and 1
(b) if all affidavits required to be filed have not been filed in the stated 2
time--make all necessary further inquiries; 3
to decide whether there has been substantial compliance with the order. 4
(7) If the registrar is not satisfied that there has been substantial 5
compliance with the order, the registrar must issue a notice under the rules 6
calling on the organisation or person to whom the order was directed to 7
show cause to the full bench at a stated time why the organisation or person 8
should not be dealt with under section 234. 9
(8) In this section-- 10
"full bench" means the full bench constituted by the president and 2 or 11
more members. 12
on show cause 13
Remedies
234.(1) If an organisation issued with the notice does not show cause at 14
the stated time, the full bench may-- 15
(a) impose on the organisation a penalty of not more than 16
1 000 penalty units; or 17
(b) amend an award or certified agreement to which the organisation 18
is a party; or 19
(c) if the organisation is an employee organisation--suspend the date 20
of operation of a wage increase that would otherwise be payable 21
to members of the organisation or to a class of the members; or 22
(d) change the organisation's rules to exclude from eligibility for 23
membership persons belonging to a particular class or section of 24
the membership; or 25
(e) make the orders it considers appropriate-- 26
(i) restricting the use of the organisation's property; or 27
(ii) controlling the organisation's property to ensure the 28
restrictions are complied with; or 29
(f) suspend the organisation's registration for a stated period; or 30
(g) deregister the organisation; or 31
s 235 176 s 235
Industrial Relations
(h) make the other orders it considers appropriate-- 1
(i) to secure the organisation's compliance with the 2
commission's order; or 3
(ii) to punish the organisation for not complying with the 4
commission's order; or 5
(i) order the organisation to pay the costs of the show cause 6
proceedings. 7
(2) If a person issued with the notice does not show cause at the stated 8
time, the full bench may-- 9
(a) impose on the person a fine of not more than 40 penalty units; or 10
(b) make the other orders it considers appropriate-- 11
(i) to secure the person's compliance with the commission's 12
order; or 13
(ii) to punish the person for not complying with the 14
commission's order; or 15
(c) order the person to pay the costs of the show cause proceedings. 16
(3) All persons concerned must comply with an order or direction made 17
or given by the full bench. 18
(4) In this section-- 19
"organisation" includes a branch of the organisation. 20
"stated time" means at the time stated in the notice to show cause under 21
section 233(7), or at a time to which the proceedings are adjourned. 22
PART 3--BALLOTS 23
ballot on strike action 24
Secret
235.(1) This section applies if-- 25
(a) a strike happens; or 26
(b) the commission, or a person applying to the commission, 27
s 236 177 s 236
Industrial Relations
considers a strike is likely to happen. 1
(2) The commission may act under subsection (4)-- 2
(a) of its own initiative; or 3
(b) on application by an employer or employer organisation; or 4
(c) on application-- 5
(i) by or on behalf of 5% of the employees engaged in or on the 6
calling, enterprise, establishment or project concerned; or 7
(ii) by 250 employees; 8
whichever is less, but being, in any case, at least 4. 9
(3) The commission must act under subsection (4)-- 10
(a) on application by an employee organisation; or 11
(b) if directed by the Minister. 12
(4) To find out the number of employees or members who favour the 13
strike, the commission may direct the registrar to conduct a secret ballot66 14
of-- 15
(a) the employees engaged in or on the calling, enterprise, 16
establishment or project concerned; or 17
(b) the members of an employee organisation engaged in or on the 18
calling, enterprise, establishment or project concerned. 19
(5) The registrar must publish the result of the secret ballot in a 20
newspaper circulating in the locality concerned. 21
of ballot adverse to strike 22
Effect
236.(1) Subsection (2) applies if-- 23
(a) when a secret ballot was conducted under section 235(4)-- 24
(i) a strike exists; or 25
(ii) a strike appeared likely to happen, and a strike happens for 26
the same issue within 1 month after the ballot result is 27
66 See section 285 (Conducting a secret ballot)
s 237 178 s 237
Industrial Relations
published under section 235(5); and 1
(b) the ballot shows that a majority of employees or members who 2
voted in the ballot is not in favour of the strike. 3
(2) The registrar must advertise a date (the "end date"), not more than 4
7 days after the date of publication, on or before which the employees or 5
members who are on strike must discontinue the strike. 6
(3) The advertisement-- 7
(a) must be in a newspaper circulating in the locality concerned; and 8
(b) may be included in the advertisement published under 9
section 235(5). 10
(4) The employees or members must discontinue the strike on or before 11
the end date. 12
(5) An employee or member who does not is taken to have terminated, 13
from the end date, the employment in which the employee or member was 14
engaged when the strike commenced, unless the employee or member has a 15
reasonable excuse. 16
(6) Disagreement by a person with the result of the ballot is not a 17
reasonable excuse. 18
ART 4--INDUSTRIAL ACTION 19
P
against agent's unauthorised actions 20
Indemnity
237. An organisation or association of persons is not liable for anything 21
said or done by its agent, during or in connection with industrial action, if-- 22
(a) the agent acted without the knowledge of the governing body of 23
the organisation or association; and 24
(b) the governing body could not, by the exercise of reasonable 25
diligence, have prevented the action. 26
s 238 179 s 238
Industrial Relations
for strikes can not be compelled 1
Payments
238.(1) An employer may pay, or refuse to pay, an employee for a 2
period when the employee engages in a strike. 3
(2) An employee must not organise or engage in, or threaten to organise 4
or engage in, a strike against an employer with intent to coerce the employer 5
to make the payment. 6
(3) An employee organisation, or an officer, member or employee of the 7
organisation, must not organise or engage in, or threaten to organise or 8
engage in, a strike against an employer with intent to coerce the employer to 9
make the payment. 10
(4) For subsection (3), action is taken to have been done by an 11
organisation if it is done by-- 12
(a) the organisation's management committee; or 13
(b) an officer, employee or agent of the organisation acting in that 14
capacity; or 15
(c) a member or group of members of the organisation acting under 16
the organisation's rules; or 17
(d) a member of the organisation, who performs the function of 18
dealing with an employer on behalf of the member and other 19
members of the organisation, acting in that capacity. 20
(5) Subsection (4)(c) and (d) does not apply if any of the following 21
persons has taken reasonable steps to prevent the action-- 22
(a) the organisation's management committee; 23
(b) a person authorised by the committee; 24
(c) an officer of the organisation. 25
(6) A contravention of subsection (2) or (3) is not an offence.67 26
(7) In this section-- 27
"strike" does not include the failure to perform work in excess of that 28
required under a relevant industrial instrument. 29
67 See section 239 for the orders the commission may make for a contravention of
this section.
s 239 180 s 240
Industrial Relations
the commission may make 1
Orders
239.(1) An application may be made to the commission for orders under 2
this section for a contravention of section 238. 3
(2) The application may be made by-- 4
(a) the Minister; or 5
(b) a person who has an interest in the matter; or 6
(c) for a contravention of section 238(2) or (3)--the employer; or 7
(d) someone else prescribed under a regulation. 8
(3) A regulation prescribing persons for subsection (2)(d) may limit its 9
application to stated circumstances. 10
(4) The commission may, if it considers it appropriate in all the 11
circumstances, make 1 or more of the following orders-- 12
(a) an order imposing on a person who contravenes section 238 a 13
penalty of not more than 135 penalty units; 14
(b) an order requiring a person who contravenes section 238(2) or (3) 15
to pay an employer compensation of the amount the commission 16
considers appropriate; 17
(c) an injunctive order (including an interim injunction), and any 18
other order, the commission considers necessary to stop the 19
contravention or remedy its effects; 20
(d) another consequential order. 21
not to deal with claims for payments for strikes 22
Commission
240.(1) The commission can not deal with a claim for the making of a 23
payment to employees for a period when the employees engage in a strike 24
under section 238. 25
(2) Subsection (1) applies to a claim for a period before or after-- 26
(a) the making of the claim; or 27
(b) the commencement of this section. 28
s 241 181 s 243
Industrial Relations
to refuse to work if imminent health or safety risk 1
Right
241. Nothing in this Act prevents an employee from refusing to perform 2
work if-- 3
(a) the refusal is based on a reasonable concern by the employee 4
about an imminent risk to his or her health or safety; and 5
(b) the employee does not unreasonably contravene a direction of his 6
or her employer to perform other available work (whether at the 7
same or another workplace) that is safe and appropriate for the 8
employee to perform. 9
HAPTER 8--INDUSTRIAL TRIBUNALS AND 10
C
REGISTRY 11
ART 1--INDUSTRIAL COURT 12
P
Division 1--Industrial Court of Queensland 13
14
Continuance
242. The Industrial Court, as formerly established as a superior court of 15
record in Queensland, is continued in existence as the Industrial Court of 16
Queensland (the "court"). 17
2--President 18
Division
of the court 19
President
243.(1) The Governor in Council may appoint a person as president of 20
the court by commission. 21
(2) The person must be a person who-- 22
(a) has been-- 23
s 244 182 s 245
Industrial Relations
(i) a judge of the Supreme or District Court; or 1
(ii) is a lawyer of at least 5 years standing; and 2
(b) has skills and experience in industrial relations. 3
(3) The person can not be-- 4
(a) a member of the Executive Council or Legislative Assembly; or 5
(b) a director of a corporation engaged in a calling; or 6
(c) an auditor of a corporation engaged in a calling or of a business; 7
or 8
(d) a person who participates in any capacity in the management of-- 9
(i) a corporation engaged in a calling; or 10
(ii) a business. 11
(4) The appointment of the president is on a full-time basis. 12
a judge is appointed as president 13
When
244.(1) The appointment of, or service by, a judge of the Supreme or 14
District Court as president does not affect-- 15
(a) the judge's tenure of office as a judge; or 16
(b) the judge's rank, title, status, precedence, salary, annual or other 17
allowances or other rights or privileges as the holder of his or her 18
office as a judge. 19
(2) The judge's service as president is taken to be service as a judge for 20
all purposes. 21
president holds office 22
When
245.(1) The president holds office until-- 23
(a) the president turns 70; or 24
(b) the president resigns by signed notice given to the Governor; or 25
(c) the president becomes a member of the Executive Council or 26
Legislative Assembly; or 27
s 246 183 s 247
Industrial Relations
(d) the president becomes a person mentioned in section 243(3)(b) to 1
(d), other than with the Minister's written approval; or 2
(e) the president is removed from office under subsection (2). 3
(2) The Governor may remove the president from office on an address to 4
the Legislative Assembly for-- 5
(a) mental or physical incapacity; or 6
(b) misbehaviour. 7
(3) If the president stops holding office because of subsection (1)(a) 8
or (b) while hearing a matter, the Governor in Council may, without 9
reappointing the person as president, continue the person in office for the 10
time necessary to enable the hearing to be completed. 11
(4) The person continued in office may exercise the jurisdiction and 12
powers of the court necessary or convenient for the hearing to be completed. 13
president of the court 14
Acting
246.(1) This section applies if the president temporarily can not perform 15
the functions of office. 16
(2) The Governor in Council may appoint the vice president to act as 17
president by industrial gazette notice. 18
(3) A person who has acted as president may attend sittings of the court 19
for the purpose of giving a decision in, or otherwise completing, 20
proceedings that were heard by the person while acting as president. 21
(4) The person's decision is taken to be the president's decision in the 22
proceedings. 23
3--Jurisdiction and powers of the court 24
Division
of court 25
Constitution
247. The court is constituted by the president sitting alone. 26
s 248 184 s 249
Industrial Relations
jurisdiction 1
Court's
248.(1) The court may-- 2
(a) perform all functions and exercise all powers prescribed for the 3
court by this or another Act; and 4
(b) hear and decide cases stated to it by the commission; and 5
(c) hear and decide an offence against this Act, other than an offence 6
for which jurisdiction is expressly conferred on a magistrate; and 7
(d) hear and decide appeals from an industrial magistrate's decision 8
in proceedings for-- 9
(i) an offence against this Act; or 10
(ii) recovery of damages, or other amounts, under this Act; and 11
(e) exercise the jurisdiction and powers of the Supreme Court to 12
ensure, by prerogative order or other appropriate process-- 13
(i) the commission and magistrates exercise their jurisdictions 14
according to law; and 15
(ii) the commission and magistrates do not exceed their 16
jurisdictions. 17
(2) In proceedings, the court may-- 18
(a) make the decisions it considers appropriate, irrespective of 19
specific relief sought by a party; and 20
(b) give directions about the hearing of a matter. 21
(3) The court's jurisdiction is not limited, by implication, by a provision 22
of this or another Act. 23
interpretation 24
Court's
249. The court's interpretation of a provision of this Act, an industrial 25
instrument or permit binds-- 26
(a) the commission; and 27
(b) magistrates; and 28
s 250 185 s 252
Industrial Relations
(c) organisations and persons who are subject to this Act, or bound 1
by the industrial instrument or permit. 2
may refuse to proceed 3
Court
250.(1) This section applies if proceedings before the court relate to an 4
industrial instrument that exists or is sought in the proceedings. 5
(2) The court may refuse to hear and decide the proceedings if any of the 6
employees who are, or would be, bound by the instrument are-- 7
(a) involved in an industrial dispute; or 8
(b) contravening this Act or a decision. 9
(3) Subsection (2) applies whether or not the employees are employees 10
whose employment may be affected by the decision. 11
of court 12
Contempt
251.(1) The court has all the protection, powers, jurisdiction and authority 13
of the Supreme Court for a contempt of court. 14
(2) The court must comply with the Uniform Civil Procedure Rules 15
relating to contempt of court, with necessary changes. 16
(3) The registrar or another officer of the court may apply to the court for 17
an order that a person be committed to prison for contempt of court. 18
(4) The court's jurisdiction to punish a contempt of the court may be 19
exercised on the president's own initiative. 20
(5) The court has jurisdiction to punish an act or omission as a contempt 21
of the court, although a penalty is prescribed for the act or omission. 22
Division 4--President's annual report 23
annual report 24
President's
252.(1) As soon as practicable after the end of each financial year, the 25
president must prepare and give to the Minister a report for the year on-- 26
(a) the operation of this Act; and 27
s 253 186 s 253
Industrial Relations
(b) in particular, the working of the court, commission and registry. 1
(2) The report must also contain summaries of significant decisions and 2
interpretations about awards, certified agreements, industrial agreements, 3
QWAs and ancillary documents. 4
(3) The Minister must table a copy of the report in the Legislative 5
Assembly within 14 days after the Minister receives it. 6
5--President's advisory committee 7
Division
committee established 8
Advisory
253.(1) The president's advisory committee (the "advisory committee") 9
is established. 10
(2) The advisory committee consists of-- 11
(a) the president; and 12
(b) the commissioner administrator; and 13
(c) the chief executive or the chief executive's nominee; and 14
(d) 2 persons representing employee organisations, nominated by the 15
organisations; and 16
(e) 2 persons representing employer organisations, nominated by the 17
organisations; and 18
(f) 2 persons who have knowledge of, or experience in, industrial 19
relations; and 20
(g) 1 person representing the Anti-Discrimination Commission. 21
(3) The Minister must appoint the members under subsection (2)(d) 22
to (f). 23
(4) The Minister may appoint the members only after consulting with the 24
president. 25
s 254 187 s 256
Industrial Relations
of advisory committee 1
Functions
254. The president's advisory committee's functions are to discuss 2
matters relating to the accessibility, efficiency, effectiveness, flexibility, 3
operation, and responsiveness of the court and commission. 4
PART 2--INDUSTRIAL RELATIONS COMMISSION 5
1--Continuance and composition 6
Division
7
Continuance
255. The Queensland Industrial Relations Commission (the 8
"commission"), as formerly established as a court of record, is continued in 9
existence. 10
11
Composition
256.(1) The following persons are members of the commission 12
("members")-- 13
(a) the president; 14
(b) the vice president, commissioner administrator and at least 15
6 other industrial commissioners ("commissioners"). 16
(2) The full bench of the commission ("full bench") is constituted by-- 17
(a) for chapter 12, part 1668 or for the hearing of an appeal--the 18
president and 2 or more commissioners; or 19
(b) otherwise--3 or more members. 20
(3) The commission is constituted by a commissioner sitting alone. 21
(4) More than 1 full bench or commission may sit at the same time. 22
68 Chapter 12, part 16 (Deregistration)
s 257 188 s 259
Industrial Relations
(5) The commission's jurisdiction, or existence, is not affected by a 1
vacancy in any office of the commission. 2
2--Membership of the commission 3
Division
of the commission 4
President
257. The president of the court is also the president of the commission. 5
president of the commission 6
Vice
258.(1) The Governor in Council may appoint a person as vice president 7
of the commission-- 8
(a) if the person is not already a commissioner--by commission; or 9
(b) if the person is already a commissioner--by gazette notice. 10
(2) The person must be a person who-- 11
(a) is a lawyer of at least 5 years standing; 12
(b) has the experience, qualifications and standing mentioned in 13
section 259(2). 14
15
Commissioners
259.(1) The Governor in Council may appoint a person as a 16
commissioner by commission. 17
(2) The person must have-- 18
(a) a high level of experience in-- 19
(i) business or industry; or 20
(ii) an organisation or employer association or a State peak 21
council; or 22
(iii) a department of government; or 23
(iv) an agency, authority, commission, corporation, 24
instrumentality, office, or other entity, established under an 25
Act or under State authorisation for a public or State 26
s 260 189 s 260
Industrial Relations
purpose; or 1
(b) suitable experience, qualifications and standing in the community 2
to be appointed as a commissioner. 3
(3) The Governor in Council may appoint a commissioner as the 4
commissioner administrator by gazette notice. 5
(4) The appointment as commissioner administrator is to be for a term, 6
of at least 5 years, stated in the notice. 7
(5) The commissioner administrator continues to be a commissioner, and 8
is to sit as, and exercise the powers of, a commissioner. 9
(6) The commissioner administrator holds office as commissioner 10
administrator while the person holds office as a commissioner or until-- 11
(a) the end of the person's term of appointment; or 12
(b) the person is appointed as the president; or 13
(c) the person resigns as commissioner administrator by signed 14
notice given to the Governor. 15
(7) The commissioner administrator may resign office as commissioner 16
administrator without resigning office as a commissioner. 17
commissioner holds office 18
When
260.(1) A commissioner holds office until-- 19
(a) the commissioner is appointed as the president; or 20
(b) the commissioner turns 70; or 21
(c) the commissioner resigns by signed notice given to the Governor; 22
or 23
(d) the commissioner becomes a member of the Executive Council 24
or Legislative Assembly; or 25
(e) the commissioner becomes a person mentioned in section 262(b), 26
other than with the Minister's written approval; or 27
(f) the commissioner is removed from office under section 263. 28
(2) However, if a commissioner stops holding office because of 29
subsection (1)(b) or (c) while investigating or hearing a matter, the 30
s 261 190 s 263
Industrial Relations
Governor in Council may, without reappointing the person as a 1
commissioner, continue the person in office for the time necessary to enable 2
the investigation or hearing to be completed. 3
(3) The person continued in office may exercise the jurisdiction and 4
powers of the commission necessary or convenient for the investigation or 5
hearing to be completed. 6
vice president, commissioner administrator or other 7
Acting
commissioner 8
261.(1) This section applies if the vice president, commissioner 9
administrator or another commissioner temporarily can not perform the 10
functions of office. 11
(2) The Governor in Council may appoint a person to act as the vice 12
president, commissioner administrator or other commissioner by industrial 13
gazette notice. 14
on appointment 15
Restrictions
262. The following persons can not be appointed as commissioners-- 16
(a) a member of the Executive Council or Legislative Assembly; 17
(b) a person who-- 18
(i) acts as director of a corporation engaged in a calling; or 19
(ii) acts as auditor of a corporation engaged in a calling or of a 20
business; or 21
(iii) participates in any capacity in the management of a 22
corporation engaged in a calling; or 23
(iv) participates in any capacity in the management of a business. 24
of commissioners from office 25
Removal
263. The Governor may remove a commissioner from office, on an 26
address to the Legislative Assembly, for-- 27
s 264 191 s 265
Industrial Relations
(a) mental or physical incapacity; or 1
(b) misbehaviour. 2
3--The commission 3
Division
responsibilities for the commission and registry 4
Administrative
264.(1) In addition to performing the functions of a member, the 5
president is responsible for the administration of the commission and 6
registry, and the orderly and expeditious exercise of the commission's 7
jurisdiction and powers. 8
(2) The president has the power to do all things necessary or convenient 9
to be done to perform responsibilities under subsection (1). 10
(3) In addition to performing the functions of a member, the vice 11
president must assist the president to perform the president's functions. 12
(4) In addition to performing the functions of a member, the 13
commissioner administrator is responsible to the president for the 14
administration of the commission and registry, and the orderly and 15
expeditious exercise of the commission's jurisdiction and powers. 16
(5) The commissioner administrator has the power to do all things 17
necessary or convenient to be done to perform responsibilities under 18
subsection (4). 19
jurisdiction 20
Commission's
265.(1) The commission may hear and decide the following matters-- 21
(a) all questions of law or fact brought before it or that it considers 22
expedient to hear and decide for the regulation of a calling; 23
(b) all questions-- 24
(i) arising out of an industrial matter; or 25
(ii) involving deciding the rights and duties of a person in 26
relation to an industrial matter; or 27
(iii) it considers expedient to hear and decide about an industrial 28
matter; 29
s 265 192 s 265
Industrial Relations
(c) an industrial dispute, referred to the commission by a member 1
who has held a conference under this Act at which no agreement 2
has been reached; 3
(d) all appeals properly made to it under this or another Act; 4
(e) all matters committed to the commission by this or another Act. 5
(2) The commission may regulate a calling by an award-- 6
(a) on application by an organisation, an employer, or 20 employees 7
(who are not members of an employee organisation and not 8
covered by an award) in a calling; or 9
(b) on application by the Minister; or 10
(c) of its own initiative. 11
(3) The commission may hold an inquiry into or about an industrial 12
matter and to report the result of the inquiry, and make recommendations, to 13
the Minister-- 14
(a) on application by an interested person; or 15
(b) by direction of the Minister; or 16
(c) of its own initiative. 17
(4) The commission may consolidate into 1 award all awards binding or 18
affecting an employer or class of employer in a calling, or the members of 19
an organisation employed by the same employer or class of employer-- 20
(a) on application by an organisation or an employer; or 21
(b) by direction of the Minister. 22
(5) When exercising power under subsection (4), the commission may 23
make the amendments of the award it considers expedient to make to effect 24
the consolidation. 25
(6) No provision of this or another Act limits, by implication, the 26
commission's jurisdiction. 27
(7) In this section-- 28
"class" includes a section of a class. 29
s 266 193 s 269
Industrial Relations
to prevent discrimination in employment 1
Commission
266. In exercising a power, the commission must not allow 2
discrimination in employment. 3
jurisdiction is exclusive 4
Commission's
267. The original and appellate jurisdiction conferred on the commission 5
by this Act is exclusive of the jurisdiction of the Supreme Court or another 6
court or tribunal, unless otherwise prescribed under this Act. 7
may refuse to proceed 8
Commission
268.(1) This section applies if proceedings before the commission relate 9
to an industrial instrument that exists or is sought in the proceedings. 10
(2) The commission may refuse to hear and decide the proceedings if any 11
of the employees who are, or would be, bound by the instrument are-- 12
(a) involved in an industrial dispute; or 13
(b) contravening this Act or a decision; or 14
(3) Subsection (2) applies whether or not the employees are employees 15
whose employment may be affected by the decision of the proceedings. 16
or commissioner administrator to consider efficiencies that 17
President
may be achieved by allocating matters to dual commissioners 18
269. When administering the commission, the president and the 19
commissioner administrator must consider-- 20
(a) the improved efficiency of the commission; and 21
(b) in particular, the improved cooperation between the commission 22
and the Australian commission; 23
that may be achieved by the commission's functions and powers being 24
performed and exercised, for a particular matter, by a dual commissioner. 25
s 270 194 s 273
Industrial Relations
of commission's work 1
Reallocation
270. The president or commissioner administrator may reallocate the 2
matter of proceedings before a commission constituted by 1 or more of the 3
members to a commission constituted by-- 4
(a) the same member or members together with another member or 5
other members; or 6
(b) a different member or different members. 7
may continue to hear reallocated work without 8
Commission
re-hearing evidence 9
271. The commission to which the matter is reallocated may continue to 10
hear and decide the matter, without re-hearing evidence given before the 11
reallocation. 12
of full bench 13
Decision
272. A decision of the full bench is the decision of the majority of its 14
members. 15
Division 4--Commission's functions and powers 16
functions 17
Commission's
273.(1) The commission's functions include the following-- 18
(a) establishing and maintaining a system of non-discriminatory 19
awards that provide fair wages and employment conditions; 20
(b) supervising the bargaining of agreements; 21
(c) certifying agreements; 22
(d) approving QWAs; 23
(e) resolving disputes by conciliation of industrial matters and, if 24
necessary, by arbitration or making an order; 25
(f) making awards; 26
s 274 195 s 274
Industrial Relations
(g) resolving disputes in the negotiation of agreements-- 1
(i) by conciliation; or 2
(ii) by arbitration, including by the making of decisions; 3
(h) resolving disputes over union coverage by making representation 4
orders; 5
(i) resolving other disputes that threaten to harm the community or 6
the economy by conciliation and, if necessary, by arbitration; 7
(j) dealing with-- 8
(i) applications for orders under section 278;69 or 9
(ii) claims relating to dismissals. 10
(2) The commission must perform its functions in a way that-- 11
(a) furthers the objects of this Act; and 12
(b) avoids unnecessary technicalities and facilitates the fair and 13
practical conduct of proceedings under this Act. 14
(3) In this section-- 15
"occupational superannuation" includes an amount equal to the return 16
that would have accrued in relation to the occupational superannuation 17
had it been properly paid to an approved superannuation fund. 18
powers 19
General
274.(1) The commission has the power to do all things necessary or 20
convenient to be done for, or in connection with, the performance of its 21
functions. 22
(2) Without limiting subsection (1), the commission in proceedings 23
may-- 24
(a) give directions about the hearing of a matter; or 25
(b) make a decision it considers appropriate, irrespective of the 26
specific relief sought by a party; or 27
69 Section 278 (Power to recover unpaid wages and superannuation contribution
etc.)
s 275 196 s 275
Industrial Relations
(c) make an order it considers appropriate. 1
(3) The commission may, by general order or for a particular case, 2
delegate to the registrar-- 3
(a) the working out of a decision of the commission; or 4
(b) a function relating to the decision, including, for example-- 5
(i) the giving of directions; or 6
(ii) the making of orders; or 7
(iii) the preparation of rosters and schedules; or 8
(iv) a similar function it considers appropriate. 9
(4) The full bench may, to assist it in the appropriate resolution of 10
proceedings-- 11
(a) refer the whole or part of a question or matter before it to the 12
commission-- 13
(i) for investigation and report to the full bench; or 14
(ii) for the other action it decides; 15
(b) direct 1 or more of its members to carry out a specified 16
investigation or inspection and to report on it to the full bench. 17
(5) A member to whom a reference is made or a direction is given must 18
comply with the reference or direction. 19
to declare persons to be employees 20
Power
275.(1) The full bench may, on application by an organisation, a State 21
peak council or the Minister, make an order declaring a class of persons 22
who perform work in an industry under a contract for services to be 23
employees. 24
(2) The full bench may make an order only if it considers the class of 25
persons would be more appropriately regarded as employees. 26
(3) In considering whether to make an order, the commission may 27
consider-- 28
(a) the relative bargaining power of the class of persons; or 29
s 276 197 s 276
Industrial Relations
(b) the economic dependency of the class of persons on the contract; 1
or 2
(c) the particular circumstances and needs of low-paid employees; or 3
(d) whether the contract is designed to, or does, avoid the provisions 4
of an industrial instrument; or 5
(e) the particular circumstances and needs of employees including 6
women, persons from a non-English speaking background, 7
young persons and outworkers; or 8
(f) the consequences of not making an order for the class of persons. 9
(4) In this section-- 10
"contract" includes-- 11
(a) an arrangement or understanding; and 12
(b) a collateral contract relating to a contract. 13
"industrial instrument" includes an award or agreement made under the 14
Commonwealth Act. 15
to amend or void contracts 16
Power
276.(1) On application, the commission may amend or declare void 17
(wholly or partly) a contract if it considers-- 18
(a) the contract is-- 19
(i) a contract of services that is not covered by an industrial 20
instrument; or 21
(ii) a contract for services; and 22
(b) the contract is an unfair contract. 23
(2) In deciding whether to amend or declare void a contract, or part of a 24
contract, the commission may consider-- 25
(a) the relative bargaining power of the parties to the contract and, if 26
applicable, anyone acting for the parties; or 27
(b) whether any undue influence or pressure was exerted on, or any 28
unfair tactics were used against, a party to the contract; or 29
s 276 198 s 276
Industrial Relations
(c) an industrial instrument or this Act; or 1
(d) anything else the commission considers relevant. 2
(3) An application may be made by-- 3
(a) a party to the contract; or 4
(b) an inspector, for the party required under the contract to provide 5
services; or 6
(c) an organisation of employees or employers of which a party is, or 7
has applied to become, a member, if it is acting with the party's 8
written consent. 9
(4) The commission may consider a contract to be an unfair contract if it 10
considers the contract-- 11
(a) was an unfair contract when it was entered into; or 12
(b) became an unfair contract after it was entered into because of the 13
conduct of the parties, or a variation to the contract or for any 14
other reason it considers sufficient. 15
(5) The commission may make an order it considers appropriate about 16
payment of an amount for a contract amended or declared void. 17
(6) A person can not make an application under this section if-- 18
(a) an application has been made under section 7470 for the same 19
matter; or 20
(b) the person is someone to whom chapter 3, part 1 does not apply 21
under section 72.71 22
(7) In this section-- 23
"contract" includes-- 24
(a) an arrangement or understanding; and 25
(b) a collateral contract relating to a contract. 26
"industrial instrument" includes an award or agreement made under the 27
70 Section 74 (Application for reinstatement)
71 Chapter 3, part 1 (Exclusions)
Section 72 (Who this chapter does not apply to)
s 277 199 s 277
Industrial Relations
Commonwealth Act. 1
"unfair contract" means a contract that-- 2
(a) is harsh, unconscionable or unfair; or 3
(b) is against the public interest; or 4
(c) provides, or has provided, a total remuneration less than that 5
which a person performing the work as an employee would 6
receive under an industrial instrument or this Act; or 7
(d) is designed to, or does, avoid the provisions of an industrial 8
instrument. 9
to grant injunctions 10
Power
277.(1) The commission may, on application, grant the injunctive order it 11
considers appropriate-- 12
(a) to compel compliance with an industrial instrument, a permit or 13
this Act; or 14
(b) to restrain a contravention, or continuance of a contravention, of 15
an industrial instrument, a permit or this Act. 16
(2) An application may be made by-- 17
(a) a party to industrial action or an industrial dispute; or 18
(b) a person who is, or is likely to be, directly affected by industrial 19
action or an industrial dispute; or 20
(c) the registrar; or 21
(d) the chief inspector; or 22
(e) an inspector. 23
(3) An application by an organisation must be under the organisation's 24
seal and signed by the organisation's president and secretary. 25
(4) The commission may direct the injunctive order to-- 26
(a) the officers or members of an organisation generally; or 27
(b) particular officers or members of an organisation; or 28
(c) a particular employer; or 29
s 278 200 s 278
Industrial Relations
(d) a particular employee. 1
(5) A person to whom the order is directed must comply with the order 2
after the person has received notice of it. 3
(6) The commission may decide the form of the notice and the way the 4
order is to be served. 5
(7) Without limiting subsection (6), the commission may order 6
substituted service of the order by advertisement or otherwise. 7
(8) If the order is directed to an organisation, the organisation and each 8
officer of the organisation must ensure the officers and members of the 9
organisation comply with the order. 10
(9) If the officers or members, or a substantial number of the officers or 11
members, of an organisation to whom an injunctive order is directed, 12
contravene the order, the organisation and each officer of the organisation 13
commit an offence, namely, the offence of failing to ensure the organisation 14
complies with the order. 15
(10) It is a defence to a prosecution for an offence against subsection (9) 16
for the organisation or officer to prove that it, or the officer, took all 17
reasonable steps to ensure the officers or members complied with the order. 18
(11) The commission can not grant an injunctive order for a proposed 19
contravention of section 73, 83, 87, 88 or 89.72 20
(12) In this section-- 21
"injunctive order" means an order in the nature of a mandatory or 22
restrictive injunction. 23
"organisation" includes a branch of the organisation. 24
to recover unpaid wages and superannuation contribution etc. 25
Power
278.(1) An application may be made to the commission for an order for 26
payment of-- 27
72 Section 73 (When is a dismissal unfair), 83 (What employer must do to dismiss
employee), 87 (Orders about severance allowances and other separation
benefits), 88 (Employer must give notice of proposed dismissals) or
89 (Employer must consult with employee organisations about dismissals)
s 278 201 s 278
Industrial Relations
(a) an employee's unpaid wages; or 1
(b) an apprentice's unpaid tool allowance under section 138; or 2
(c) remuneration lost by an apprentice or trainee because the 3
employer has contravened section 391(2);73 or 4
(d) contributions to the approved superannuation fund payable for an 5
eligible employee that are unpaid. 6
(2) An application can not be made to the commission if the total amount 7
claimed under subsection (1)(a), (b), (c) or (d) is more than $20 000.74 8
(3) The application may be made by-- 9
(a) for a claim for occupational superannuation--an employee who is 10
an eligible employee on whose behalf an employer is required to 11
contribute to an approved superannuation fund; or 12
(b) for any other claim--an employee; or 13
(c) an employee organisation of which the eligible employee or 14
employee is a member, acting for the employee; or 15
(d) a person authorised by the eligible employee or employee to make 16
the application, acting for the employee; or 17
(e) an inspector. 18
(4) The application must be made within 6 years after the amount 19
claimed became payable. 20
(5) However, for an apprentice or trainee, the application can not relate to 21
wages payable more than 4 years before the commencement of this section. 22
(6) The president may, either before or after the start of a hearing, remit 23
the application to a magistrate if the president considers the application could 24
be more conveniently heard by a magistrate, having regard to-- 25
(a) the difficulty or expense of producing witnesses; or 26
(b) another good and sufficient reason, for example, cost. 27
73 Sections 138 (Order setting tool allowance) and 391 (Wages etc. to be paid
without deduction)
74 See sections 399 (Recovery of unpaid wages etc.) and 408 (Recovery of unpaid
superannuation contribution) for a magistrate's power to hear an application for
amounts greater than $20 000.
s 278 202 s 278
Industrial Relations
(7) A magistrate may hear and decide the application as if it had been 1
brought before the commission, and the magistrate's decision is taken to be 2
a decision of the commission. 3
(8) On hearing the application,75 the commission or magistrate-- 4
(a) must order the employer to pay the employee-- 5
(i) the amount the commission or magistrate finds to be payable 6
and unpaid to the employee within the 6 years before the date 7
of the application; and 8
(ii) an amount the commission or magistrate considers 9
appropriate, based on the return that would have accrued in 10
relation to the contributions had it been properly paid to the 11
approved superannuation fund; and 12
(b) may make an order for the payment despite an express or implied 13
provision of an agreement to the contrary; and 14
(c) may order the payment to be made on the terms the commission 15
or magistrate considers appropriate. 16
(9) For an order about an unpaid contribution, the order must require the 17
contribution to be paid to-- 18
(a) if the employee is employed by the employer--the approved 19
superannuation fund; or 20
(b) if the employee is no longer employed by the employer-- 21
(i) the approved superannuation fund; or 22
(ii) a complying superannuation fund; or 23
(iii) a superannuation fund nominated by the employee; or 24
(iv) an eligible rollover fund; or 25
(v) if the amount is less than the amount of total benefits that 26
may revert to an employee under the Superannuation 27
Industry (Supervision) Act 1993 (Cwlth)--the employee. 28
(10) The contribution must be paid into the unclaimed moneys fund, if a 29
75 See section 320 (Basis of decisions of the commission and magistrates) for the
basis of decisions of the commission.
s 279 203 s 279
Industrial Relations
former employee in relation to whom an order is made-- 1
(a) can not be located after reasonable inquiry; or 2
(b) does not nominate a superannuation fund for the purpose of the 3
order, if required by the order to do so. 4
(11) A person can not make an application under this section if an 5
application has been made under section 399 or 40876 for the same matter. 6
(12) In this section-- 7
"occupational superannuation" includes an amount equal to the return 8
that would have accrued in relation to the occupational superannuation 9
had it been properly paid to an approved superannuation fund. 10
about representation rights of employee organisations 11
Orders
279.(1) The full bench may, on application by an organisation, an 12
employer or the Minister, make the following orders about a demarcation 13
dispute-- 14
(a) an order that an employee organisation has the right, to the 15
exclusion of another organisation, to represent a particular group 16
of employees who are eligible for membership of the 17
organisation; 18
(b) an order that an employee organisation that does not have the right 19
to represent a particular group of employees has the right; 20
(c) an order that an employee organisation does not have the right to 21
represent a particular group of employees who are eligible for 22
membership of the organisation. 23
(2) The full bench may make an order only if-- 24
(a) the full bench considers conciliation proceedings would not help 25
in the prevention or settlement of the dispute; or 26
(b) conciliation proceedings for the dispute are completed, but the 27
dispute has not been fully settled. 28
76 Section 399 (Recovery of unpaid wages etc.)
Section 408 (Recovery of unpaid superannuation contribution)
s 279 204 s 279
Industrial Relations
(3) The full bench may make an order only if satisfied-- 1
(a) the conduct, or threatened conduct, of an organisation to which the 2
order would relate, or of an officer, member or employee of the 3
organisation is-- 4
(i) preventing, obstructing or restricting the performance of 5
work; or 6
(ii) harming an employer's business; or 7
(b) the consequences mentioned in paragraph (a)-- 8
(i) have stopped, but are likely to recur as a result of the conduct 9
or threatened conduct; or 10
(ii) are imminent as a result of the conduct or threatened 11
conduct. 12
(4) In considering whether to make an order, the full bench must 13
consider-- 14
(a) the wishes of employees who would be affected by the order; and 15
(b) the effect of an order on the operations (including operating costs, 16
work practices, efficiency and productivity) of the employees' 17
employer; and 18
(c) whether it should consult with appropriate State peak councils or 19
organisations; and 20
(d) the ability of the organisation to adequately represent the 21
employees' interests; and 22
(e) an agreement or understanding that the full bench becomes aware 23
of that deals with an employee organisation's right to represent a 24
particular group of employees; and 25
(f) the consequences of not making an order for the employees, 26
employer or organisation; and 27
(g) another order made by the commission that it considers 28
relevant.77 29
(5) An order may be subject to conditions. 30
77 See section 235 (Secret ballot on strike action)
s 280 205 s 280
Industrial Relations
(6) An organisation to which an order applies must comply with the 1
order.78 2
(7) The full bench may, on application by the Minister or a person or 3
organisation affected by an order, make the further order it considers 4
appropriate to ensure the Act is complied with. 5
(8) In this section-- 6
"right to represent" a particular group of employees means the right to 7
represent the industrial interests of the particular group of employees. 8
for reopening 9
Procedures
280.(1) Proceedings may be reopened, on application by a person under 10
subsection (2), by-- 11
(a) for proceedings taken before the full bench--the full bench; or 12
(b) otherwise--the commission. 13
(2) An application for reopening of proceedings may be made by-- 14
(a) the Minister; or 15
(b) a party to the proceedings; or 16
(c) for proceedings that are not about a certified agreement or 17
QWA-- 18
(i) an organisation whose members are bound by, or claim to 19
be affected by or dissatisfied with, the proceedings; or 20
(ii) a person who is bound by or claims to be affected by or 21
dissatisfied with the proceedings, and who satisfies the 22
commission that the person is not an officer of, or acting for, 23
an eligible association. 24
(3) If the commission reopens proceedings, it may-- 25
(a) revoke or amend a decision or recommendation made by it; and 26
(b) make the decision or recommendation it considers appropriate. 27
78 As to the commission's power to enforce its order, see section 233 (Enforcing
commission's orders).
s 281 206 s 281
Industrial Relations
(4) If a recommendation of the commission has been acted on by the 1
Governor in Council and the commission later revokes or amends the 2
recommendation, the Governor in Council may-- 3
(a) cancel the action taken on the recommendation to accord with the 4
commission's revocation or amendment; or 5
(b) amend the action to accord with the commission's revocation or 6
amendment. 7
(5) Failure to give notice to a person of the proceedings, or any part of the 8
proceedings, leading to the making by the commission of a decision binding 9
on the person-- 10
(a) does not invalidate or otherwise affect the decision; but 11
(b) if the person is one on whose application the commission may 12
exercise its powers, the person's failure to participate in the 13
proceedings because of the absence of notice does not affect the 14
person's application for reopening of proceedings. 15
(6) If the commission grants an application for reopening, it may give the 16
retrospective operation to its decision made in the reopened proceedings it 17
considers appropriate. 18
to full bench 19
Reference
281.(1) The commission may, at any stage of proceedings and on the 20
terms the commission considers appropriate, refer the matter to which the 21
proceedings relate to the full bench. 22
(2) A commissioner may refer the matter only with the president's 23
approval. 24
(3) Before the hearing of a matter by the commission starts, a party to the 25
proceedings may apply to the president for the matter to be referred to the 26
full bench. 27
(4) If the president is satisfied the matter is of substantial industrial 28
significance, the president may refer the matter to the full bench. 29
(5) The full bench may hear and decide a matter referred to it and make 30
the decision it considers appropriate. 31
s 282 207 s 283
Industrial Relations
stated to court 1
Case
282.(1) The commission may, at any stage of proceedings and on the 2
terms it considers appropriate, state a written case for the court's opinion on 3
a question of law relevant to the proceedings. 4
(2) The court may-- 5
(a) hear and decide the matter raised by a case stated; and 6
(b) remit the case, with its opinion, to the commission by which the 7
case was stated. 8
(3) The commission must give effect to the court's opinion. 9
to enter and inspect 10
Power
283.(1) A member, an officer of the commission or another person with 11
a member's written authority (a "commission official"), may-- 12
(a) enter a workplace in relation to which-- 13
(i) an industrial dispute exists, is impending or threatened, or is 14
likely to arise; or 15
(ii) an industrial matter exists; or 16
(iii) an industrial instrument or permit exists; or 17
(iv) it is reasonably suspected an offence under this Act has been, 18
or is being committed; and 19
(b) inspect any work, machinery, appliance, materials, article or thing 20
in or on the workplace; and 21
(c) question a person in or on the workplace about a matter relevant 22
to the commission's concern with the workplace. 23
(2) A power under subsection (1) may be exercised only during working 24
hours at the workplace. 25
(3) If a commission official is seeking to exercise a power under 26
subsection (1), a person must not-- 27
(a) refuse or unduly delay the official's entry to the workplace; or 28
(b) fail to answer a question about a matter mentioned in 29
subsection (1), unless the person has a lawful excuse; or 30
s 284 208 s 284
Industrial Relations
(c) wilfully give false information or make a false statement. 1
Maximum penalty--100 penalty units or 1 year's imprisonment. 2
(4) In this section-- 3
"workplace" means a place where, or for which-- 4
(a) a calling is carried on; or 5
(b) work has been, or is being, performed; or 6
(c) another activity has happened, or is happening. 7
of industrial instruments 8
Interpretation
284.(1) The commission may give an interpretation of an industrial 9
instrument, other than a certified agreement or QWA, on application by-- 10
(a) the Minister; or 11
(b) an organisation; or 12
(c) an employer; or 13
(d) a person who satisfies the commission that the person is not an 14
officer of, or acting for, an eligible association; or 15
(e) an inspector. 16
(2) The commission may give an interpretation of a certified agreement 17
on application by-- 18
(a) the Minister; or 19
(b) an organisation, or other person, bound by the agreement; or 20
(c) an employee whose employment is subject to the agreement; or 21
(d) an inspector. 22
(3) The commission may give an interpretation of a QWA on application 23
by-- 24
(a) a party to it; or 25
(b) an inspector. 26
s 285 209 s 285
Industrial Relations
(4) If an inspector's application under this section relates to an alleged 1
ambiguity, the commission must hear and decide the application in the 2
absence of a statement of agreed facts. 3
a secret ballot 4
Conducting
285.(1) The commission may specify when, where and how a secret 5
ballot is to be conducted. 6
(2) The registrar must-- 7
(a) conduct the ballot in accordance with the direction; and 8
(b) for the conduct of the ballot--do the things provided for by the 9
rules. 10
(3) Public service officers must help the registrar, as required, to conduct 11
the ballot. 12
(4) The registrar must advertise the result of the ballot in a newspaper 13
circulating in the locality concerned, unless the commission otherwise 14
directs. 15
(5) A person must not-- 16
(a) resist or obstruct the registrar, a public service officer, or a person 17
acting under the direction or authority of the registrar, performing 18
a duty imposed, or an action directed or authorised to be done, for 19
the ballot; or 20
(b) at or near the place where the ballot is being taken-- 21
(i) threaten or intimidate, or obstruct the free passage of, an 22
employee going to or attending at the place to vote at the 23
ballot; or 24
(ii) threaten or intimidate an employee so that the employee 25
would not vote or would vote in a particular way at the 26
ballot; or 27
(c) obstruct an employee or another person in the performance of an 28
action directed or authorised to be done for the ballot; or 29
(d) by a threat or intimidation, prevent an employee or another person 30
from performing an action directed or authorised to be done for 31
the ballot; or 32
s 286 210 s 287
Industrial Relations
(e) vote at the ballot unless the person-- 1
(i) is entitled to vote; and 2
(ii) has received a ballot paper from the registrar; or 3
(f) vote at the ballot in someone else's name; or 4
(g) if the person is entitled to vote at the ballot--mark a ballot paper 5
relating to the ballot, other than the ballot paper received by the 6
person from the registrar. 7
Maximum penalty--40 penalty units. 8
(6) A police officer may-- 9
(a) arrest without warrant a person the officer finds committing an 10
offence against subsection (5)(a), (b), (c) or (d); and 11
(b) institute a prosecution for the offence. 12
(7) Subsection (6) prevails over the Criminal Code, section 53479 to the 13
extent of any inconsistency. 14
(8) In this section-- 15
"prevent" includes attempt to prevent. 16
"resist or obstruct" includes attempt to resist or obstruct. 17
"threaten or intimidate" includes attempt to threaten or intimidate. 18
"vote" includes attempt to vote. 19
powers 20
Other
286. This division does not limit, by implication, another power given to, 21
or possessed by, the commission under this or another Act or law. 22
rulings 23
General
287.(1) The full bench may make general rulings about-- 24
(a) an industrial matter, to avoid a multiplication of inquiries into the 25
same matter; or 26
79 Criminal Code, section 534 (Intimidation of workers and employers)
s 287 211 s 287
Industrial Relations
(b) a review of a general employment condition under chapter 2;80 or 1
(c) a Queensland minimum wage, whether or not it is the subject of 2
an industrial instrument. 3
(2) Before conducting a hearing about the ruling, the full bench must-- 4
(a) give reasonable notice, in the way it considers appropriate, of its 5
intention to conduct the hearing; and 6
(b) give all interested persons an opportunity to be heard. 7
(3) A ruling-- 8
(a) must specify a date (the "specified date") on and from which it 9
has effect; and 10
(b) has effect as a decision of the full bench on and from the specified 11
date. 12
(4) A ruling may exclude from the operation of any of its provisions-- 13
(a) a class of employers or employees; or 14
(b) employers or employees in a particular locality; or 15
(c) an industrial instrument or part of an instrument. 16
(5) As soon as practicable after making a ruling, the registrar must 17
publish notice of the ruling and the specified date in the industrial gazette. 18
(6) The notice, on and from the specified date, replaces a notice of a 19
ruling on the same subject matter previously published. 20
(7) The ruling notified continues in force until the end of the day 21
immediately before the specified date included in the next ruling on the 22
same subject matter. 23
(8) If a ruling takes effect while an industrial instrument, other than a 24
instrument or part of an instrument excluded under subsection (4), is in 25
force-- 26
(a) the industrial instrument is taken to be amended to accord with the 27
ruling, on and from the specified date; and 28
(b) the amendment has effect as an industrial instrument, on and 29
80 Chapter 2 (General employment conditions)
s 288 212 s 289
Industrial Relations
from the specified date. 1
(9) The registrar may amend an industrial instrument taken to be 2
amended under subsection (8) as the registrar considers appropriate, to 3
accord with the ruling-- 4
(a) on application under the rules; or 5
(b) of the registrar's own initiative. 6
(10) In this section-- 7
"Queensland minimum wage" means the wage declared by the full bench 8
to be the Queensland minimum wage. 9
of policy 10
Statement
288.(1) The full bench may make a statement of policy about an 11
industrial matter, whether or not the matter is before the commission. 12
(2) On application by a party to an award, a stated policy may be given 13
effect by being inserted in the award. 14
(3) The registrar may give effect to a stated policy by directions about 15
procedural matters to the extent allowed by the commission. 16
(4) The directions bind all persons concerned. 17
PART 3--INDUSTRIAL MAGISTRATES 18
1--Industrial Magistrates Court 19
Division
Magistrates Court 20
Industrial
289. An Industrial Magistrates Court is a court of record. 21
s 290 213 s 292
Industrial Relations
Division 2--Industrial magistrates 1
of Industrial Magistrate 2
Office
290. Each of the following persons is an industrial magistrate 3
(a "magistrate")-- 4
(a) a stipendiary magistrate; 5
(b) an acting stipendiary magistrate. 6
3--Constitution and jurisdiction of Industrial Magistrates 7
Division
Court 8
of Industrial Magistrates Court 9
Constitution
291. An Industrial Magistrates Court is constituted by a magistrate sitting 10
alone. 11
jurisdiction 12
Magistrate's
292.(1) A magistrate has jurisdiction-- 13
(a) to exercise powers conferred on, or jurisdiction given to, 14
magistrates by this Act or another Act; and 15
(b) to hear and decide proceedings about the following matters-- 16
(i) an offence against this Act for which-- 17
(A) a maximum penalty of not more than 40 penalty units 18
is prescribed, unless the offence is one for which this 19
Act makes other provision; or 20
(B) jurisdiction is conferred on magistrates by this Act; 21
(ii) a claim for wages; 22
(iii) claims for damages suffered by an employee because of the 23
employer neglecting to pay the employee's wages; 24
(iv) claims for damages for contravention of an agreement made 25
under an industrial instrument; 26
s 293 214 s 293
Industrial Relations
(v) claims under chapter 11, part 2, division 2;81 1
(vi) claims for compensation under section 83.82 2
(2) A magistrate has jurisdiction throughout the State. 3
jurisdiction is exclusive 4
Magistrates'
293.(1) The jurisdiction conferred on a magistrate by this or another Act 5
is exclusive of the jurisdiction of another court or tribunal, unless this or the 6
other Act otherwise prescribes. 7
(2) Jurisdiction conferred on a magistrate for the following matters is not 8
exclusive of another court's jurisdiction-- 9
(a) a claim for an employee's wages payable under an industrial 10
instrument or permit; 11
(b) a claim for an employee's wages payable under an agreement in 12
which wages are payable at a price or rate higher than that fixed 13
by a relevant industrial instrument or permit; 14
(c) a claim for an employee's wages payable under an agreement in 15
which wages are payable at a price or rate that is not fixed by a 16
relevant industrial instrument or permit; 17
(d) a claim for amounts payable, with an employee's written consent, 18
from an employee's wages; 19
81 Chapter 11, part 2, division 2 (Protection for wages)
82 Section 83 (What employer must do to dismiss employee)
s 294 215 s 296
Industrial Relations
ART 4--INDUSTRIAL REGISTRY 1
P
Division 1--Industrial registry 2
registry 3
Industrial
294.(1) There is an Industrial Registry (the "registry").83 4
(2) The registry consists of-- 5
(a) an industrial registrar (the "registrar"); and 6
(b) 1 or more deputy industrial registrars (a "deputy registrar"); and 7
(c) the other staff mentioned in section 303. 8
of the registry 9
Functions
295. The registry has the following functions-- 10
(a) to act as the registry for the court and commission; 11
(b) to provide administrative support to the court and commission; 12
(c) any other functions conferred on the registry by this Act. 13
of the registry 14
Seal
296.(1) The registry has a seal. 15
(2) Judicial notice must be taken of the imprint of the registry's seal on a 16
document, and the document must be presumed to have been properly 17
sealed unless the contrary is proved. 18
2--Industrial registrar and staff 19
Division
83 The registry is a public service office under the Public Service Act 1996.
s 297 216 s 299
Industrial Relations
of registrar 1
Appointment
297.(1) The Governor in Council may, by industrial gazette notice, 2
appoint a person to be the registrar. 3
(2) The registrar is to be paid the remuneration and allowances decided 4
by the Governor in Council. 5
(3) The registrar holds office on the terms and conditions, not provided 6
for by this Act, decided by the Governor in Council. 7
of appointment of registrar 8
Termination
298.(1) The Governor in Council must end the registrar's appointment if 9
the registrar-- 10
(a) is guilty of misconduct of a kind that could warrant dismissal 11
from the public service if the registrar were a public service 12
officer; or 13
(b) is absent, without the Minister's leave or without reasonable 14
excuse, for 14 consecutive days or 28 days in any year; or 15
(c) becomes incapable of performing the functions of office. 16
(2) The Governor in Council may end the registrar's appointment if the 17
registrar-- 18
(a) is convicted of an indictable offence (whether in Queensland or 19
elsewhere); or 20
(b) engages in other paid employment. 21
and powers of registrar 22
Functions
299.(1) The registrar-- 23
(a) administers the registry; and 24
(b) has the functions conferred on the registrar under this or another 25
Act. 26
(2) The registrar has the power to do all things necessary or convenient to 27
be done to perform the registrar's functions. 28
(3) In performing a function or exercising a power, the registrar must 29
s 300 217 s 304
Industrial Relations
comply with a direction given in relation to the performance or exercise by 1
the president or commissioner administrator. 2
registrar 3
Deputy
300. A deputy registrar must help the registrar in performing the 4
registrar's functions. 5
by registrar 6
Delegation
301. The registrar may delegate a power of the registrar under this Act 7
to-- 8
(a) a deputy registrar; or 9
(b) an appropriately qualified person nominated by the president; or 10
(c) for section 374 84--an appropriately qualified officer of the court 11
or commission. 12
registrar 13
Acting
302.(1) This section applies if the registrar temporarily can not perform 14
the functions of office. 15
(2) The Governor in Council may appoint a person to act as the registrar 16
by industrial gazette notice. 17
18
Staff
303. The staff of the registry, including a deputy registrar, are to be 19
appointed under the Public Service Act 1996. 20
of the court and commission 21
Officers
304. The registrar, a deputy registrar and the other staff of the registry are 22
officers of the court and the commission. 23
84 Section 374 (Inspection of employee register and index--registrar)
s 305 218 s 306
Industrial Relations
PART 5--ARRANGEMENTS WITH OTHER 1
AUTHORITIES 2
1--Member may also be member of Australian commission 3
Division
may hold other appointment 4
Member
305. A member who is appointed as a member of the Australian 5
commission may hold that appointment and the appointment as a member 6
at the same time. 7
2--Dual commissioners 8
Division
of Commonwealth official as commissioner 9
Appointment
306.(1) The Governor in Council may appoint a member of the 10
Australian commission to be a commissioner ("dual commissioner"). 11
(2) Sections 263 and schedule 2, part 1, section 185 do not apply to the 12
appointment of a dual commissioner or to a dual commissioner. 13
(3) The appointment-- 14
(a) is for the term the Governor in Council considers appropriate and 15
states in the instrument of appointment; and 16
(b) may be ended, with the Governor in Council's approval, by the 17
Minister's notice given to the dual commissioner. 18
(4) A dual commissioner-- 19
(a) is not entitled to remuneration for performing the functions of a 20
commissioner; but 21
(b) is entitled to be paid expenses reasonably incurred by the dual 22
commissioner in exercising powers and performing functions as 23
a commissioner. 24
85 Section 263 (Removal of commissioners from office) and schedule 2
(Appointments and procedures), part 1 (president, vice president and
commissioners), section 1 (Remuneration)
s 307 219 s 308
Industrial Relations
(5) A dual commissioner stops being a commissioner if the person-- 1
(a) becomes a person mentioned in section 262;86 or 2
(b) stops being a member of the Australian commission. 3
of dual commissioner 4
Role
307.(1) A dual commissioner, in accordance with an agreement between 5
the president and the president of the Australian commission-- 6
(a) must perform the functions of a commissioner; and 7
(b) has, and may exercise for a particular matter, the powers of-- 8
(i) a commissioner; and 9
(ii) a member of the Australian commission. 10
(2) A provision of this Act prescribing the functions or powers of a 11
commissioner is subject to subsection (1) in its application to a dual 12
commissioner. 13
3--References to Commonwealth official 14
Division
of matter to Commonwealth official 15
Reference
308.(1) The president may ask the president of the Australian 16
commission to nominate a member of that commission to deal with an 17
industrial matter before the commission. 18
(2) If a nomination is made, the president may refer the industrial matter 19
to the nominated member, to be dealt with by the nominated member under 20
this Act. 21
(3) In dealing with the industrial matter, the nominated member-- 22
(a) has the powers of a commissioner; and 23
(b) in exercising the powers, is taken to constitute the commission. 24
(4) The nominated commissioner's decision is taken to be a decision of 25
86 Section 262 (Restrictions on appointment)
s 309 220 s 310
Industrial Relations
the commission. 1
(5) The reference of an industrial matter to a nominated commissioner-- 2
(a) does not derogate from the commission's authority to exercise 3
jurisdiction in relation to the matter; and 4
(b) may be revoked by the president by notice given to the nominated 5
commissioner. 6
(6) In this section-- 7
"industrial matter" includes part of an industrial matter. 8
Division 4--Conferences and joint sessions with industrial authorities 9
with industrial authorities 10
Conferences
309.(1) This section applies if-- 11
(a) the president considers it desirable that a conference be held with 12
an industrial authority about an industrial matter; and 13
(b) the industrial authority agrees to a conference. 14
(2) The president may confer, or direct a commissioner to confer, with 15
the industrial authority to coordinate decisions made, or to be made-- 16
(a) under this Act about the industrial matter; and 17
(b) by the industrial authority. 18
sessions with industrial authorities 19
Joint
310.(1) This section applies if-- 20
(a) the president considers proceedings relating to an industrial matter 21
before the commission should be heard in joint session with an 22
industrial authority; and 23
(b) the industrial authority agrees to a joint session. 24
(2) The president may-- 25
(a) hear, or direct a commissioner to hear, the proceedings in joint 26
session with the industrial authority; and 27
s 311 221 s 313
Industrial Relations
(b) confer, or direct the commissioner to confer, with the industrial 1
authority about the proceedings and the decision to be made in the 2
proceedings; and 3
(c) join, or direct the commissioner to join, with the industrial 4
authority in the decision made in the proceedings. 5
matters before full bench and industrial authority 6
Similar
311.(1) This section applies if-- 7
(a) the president considers an industrial authority has before it an 8
industrial matter similar to an industrial matter before the full 9
bench; and 10
(b) the industrial authority agrees to participate in joint session. 11
(2) The president may-- 12
(a) if the president is a member of the full bench--participate in joint 13
session with the industrial authority about the industrial matter; or 14
(b) direct a member of the full bench to participate in joint session 15
with the industrial authority about the industrial matter. 16
(3) The president or member must report the result of the joint session to 17
the full bench. 18
powers in joint session 19
Member's
312. A member participating in joint session with an industrial authority, 20
in relation to the industrial matter dealt with in joint session, must perform 21
the functions and has, and may exercise, the powers of the commission. 22
may decide matter not to be dealt with in joint session 23
President
313. The president may decide that an industrial matter should not be 24
dealt with in joint session and, if the decision is made after a joint session 25
about the matter starts-- 26
(a) the member participating in the joint session must immediately 27
stop participating; and 28
s 314 222 s 315
Industrial Relations
(b) the industrial matter may proceed before the commission or, if 1
appropriate, the full bench. 2
5--Other functions etc. and arrangements 3
Division
and powers vested in commission by other jurisdictions 4
Functions
314.(1) The commission may perform the functions and exercise the 5
powers conferred on it under-- 6
(a) the Workplace Relations Act 1996 (Cwlth); or 7
(b) another enactment of a jurisdiction other than Queensland 8
declared for this section under a regulation. 9
(2) A decision of the commission under authority conferred by 10
subsection (1) is not a decision made by it under this Act. 11
with Commonwealth public service 12
Arrangements
315.(1) Arrangements may be made under the Public Service Act 1996, 13
section 8287 for-- 14
(a) a Commonwealth public servant to perform functions and 15
exercise powers under this Act; and 16
(b) Queensland public service employees to perform functions and 17
exercise powers under the Commonwealth Act. 18
(2) An arrangement under subsection (1)(a) is enough authority for a 19
Commonwealth public servant to perform the functions and exercise the 20
powers of a Queensland public service employee under this Act. 21
(3) In this section-- 22
"Commonwealth public servant" means-- 23
(a) an officer of the Commonwealth public service; or 24
(b) the industrial registrar under the Commonwealth Act; or 25
87 Public Service Act 1996, section 82 (Work performance and interchange
arrangements)
s 316 223 s 317
Industrial Relations
(c) another person performing functions and exercising powers under 1
the Commonwealth Act. 2
PART 6--PROCEEDINGS OF COURT, 3
COMMISSION, MAGISTRATES AND REGISTRAR 4
1--Definitions 5
Division
for pt 6 6
Definitions
316. In this part-- 7
"administer" an oath includes authorise the administering of an oath. 8
"exercising" jurisdiction includes exercising powers and performing 9
functions. 10
"take" a statutory declaration includes authorise the taking of a statutory 11
declaration. 12
2--Starting proceedings and service of process 13
Division
proceedings 14
Starting
317.(1) Unless otherwise provided, proceedings may be started in the 15
court or commission or before the registrar on application by-- 16
(a) an organisation or an officer or member of an organisation; or 17
(b) the Minister; or 18
(c) a State peak council; or 19
(d) an inspector; or 20
(e) an employer; or 21
(f) a person who has an interest in the matter to which the application 22
relates. 23
s 318 224 s 318
Industrial Relations
(2) Proceedings may also be started by the commission of its own 1
initiative. 2
(3) In proceedings, the commission may call before it the persons it 3
considers necessary. 4
(4) This section does not affect another provision of this Act providing 5
for the starting of proceedings. 6
of process 7
Service
318.(1) Subsection (2) applies if-- 8
(a) for proceedings in, or to be started in, the court--the president or 9
registrar considers service of a document can not be effected 10
promptly by personal service or in a way prescribed under the 11
rules; or 12
(b) for proceedings in, or to be started in, the commission--the 13
commission or registrar considers service of a document can not 14
be effected promptly by personal service or in a way prescribed 15
under the rules. 16
(2) The president, commission or registrar may order-- 17
(a) substituted service of the document; or 18
(b) notice of the document be given by letter, telex, fax, email, 19
advertisement in an appropriate newspaper, or otherwise, instead 20
of service. 21
(3) Service or notice in accordance with the order is sufficient service of 22
the person required to be served. 23
(4) Unless otherwise ordered by the court or commission-- 24
(a) service of the document on an employer organisation; or 25
(b) substituted service or notice of the document in accordance with 26
an order under subsection (2); 27
is taken to be service on all employers who have employees engaged in the 28
calling that is relevant to the purpose of the document, or in related callings. 29
(5) In this section-- 30
"document" includes an attendance notice, notice or order. 31
s 319 225 s 319
Industrial Relations
3--Conduct of proceedings 1
Division
of parties 2
Representation
319.(1) In proceedings, a party to the proceedings, or a person ordered or 3
permitted to appear or to be represented in the proceedings, may be 4
represented by-- 5
(a) an agent appointed in writing; or 6
(b) if the party or person is an organisation--an officer or member of 7
the organisation. 8
(2) The party or person may be represented by a lawyer if, and only if-- 9
(a) for proceedings in the court-- 10
(i) the proceedings are for the prosecution of an offence; or 11
(ii) all parties consent; or 12
(iii) the court gives leave; or 13
(b) for proceedings before the commission, other than proceedings 14
under section 27888-- 15
(i) the proceedings relate to a matter under chapter 4;89 or 16
(ii) all parties consent; or 17
(iii) on application by a party or person, the commission is 18
satisfied, having regard to the matter the proceedings relate 19
to, that there are special circumstances that make it desirable 20
for the party or person to be legally represented; or 21
(iv) on application by a party or person, the commission is 22
satisfied the party or person can be adequately represented 23
only by a lawyer; or 24
(c) for proceedings before an Industrial Magistrates Court, other than 25
proceedings remitted under section 278(5)-- 26
(i) all parties consent; or 27
88 Section 278 (Power to recover wages and superannuation)
89 Chapter 4 (Freedom of association)
s 320 226 s 320
Industrial Relations
(ii) the proceedings are brought personally by an employee and 1
relate to a matter that could have been brought before a court 2
of competent jurisdiction other than an Industrial Magistrates 3
Court; or 4
(iii) the proceedings are for the prosecution of an offence; or 5
(d) for proceedings before the registrar, including interlocutory 6
proceedings-- 7
(i) all parties consent; or 8
(ii) the registrar gives leave. 9
(3) However, in proceedings mentioned in subsection (2)(c)(iii), the 10
person represented can not be awarded costs of the representation. 11
(4) For subsection (2)(b)(iii) and (iv), the commission may consider, for 12
example, the following-- 13
(a) the amount claimed in the proceedings, if any; 14
(b) the nature and complexity of the matter; 15
(c) the nature of the evidence to be adduced; 16
(d) the cross examination likely to be required; 17
(e) the capacity of the party or person to represent himself or herself; 18
(f) the questions of law likely to arise; 19
(g) whether the duration or cost of the proceedings will be decreased 20
or increased if the party or person is represented. 21
(5) In this section-- 22
"proceedings" means proceedings under this or another Act being 23
conducted by the court, the commission, an Industrial Magistrates 24
Court or the registrar. 25
of decisions of the commission and magistrates 26
Basis
320.(1) Subsections (2) and (3) do not apply to proceedings for-- 27
(a) the recovery of amounts, other than an amount ordered under 28
s 321 227 s 321
Industrial Relations
section 27890; or 1
(b) an offence against this Act. 2
(2) In proceedings, the commission or Industrial Magistrates Court-- 3
(a) is not bound by technicalities, legal forms or rules of evidence; 4
and 5
(b) may inform itself on a matter it considers appropriate in the 6
exercise of its jurisdiction. 7
(3) Also, the commission or Industrial Magistrates Court is to be 8
governed in its decisions by equity, good conscience and the substantial 9
merits of the case having regard to the interests of-- 10
(a) the persons immediately concerned; and 11
(b) the community as a whole. 12
(4) In proceedings, the commission may admit evidence given before, 13
and the findings of, the Anti-Discrimination Commission as evidence in the 14
proceedings. 15
(5) In making a decision, the commission must consider the public 16
interest, and to that end must consider-- 17
(a) the objects of this Act; and 18
(b) the likely effects of the commission's decision on the community, 19
local community, economy, industry generally and the particular 20
industry concerned. 21
(6) In exercising its jurisdiction, the commission must have appropriate 22
regard to the rules. 23
and compellability of witnesses 24
Competence
321. A party to proceedings in the court or commission is competent, 25
and may be compelled, to give evidence in the proceedings as a witness to 26
the same extent as in civil proceedings in the Supreme Court. 27
90 Section 278 (Power to recover unpaid wages and superannuation contribution
etc.)
s 322 228 s 324
Industrial Relations
1
Intervention
322.(1) The Minister may intervene-- 2
(a) in proceedings before an industrial tribunal; or 3
(b) in proceedings before another court or tribunal that touch on-- 4
(i) the jurisdiction or powers of the court, the commission, a 5
magistrate or the registrar; or 6
(ii) a matter for which the jurisdiction or powers may be 7
exercised; or 8
(iii) the interpretation of this Act. 9
(2) A State peak council may intervene in proceedings before the 10
commission if any of its members has a sufficient interest in the 11
proceedings. 12
(3) On intervention, the Minister or State peak council becomes a party to 13
the proceedings. 14
(4) In this section-- 15
"industrial tribunal" means the court, the commission, an Industrial 16
Magistrates Court or the registrar. 17
by registrar 18
Adjournment
323. If the president or a commissioner can not attend at the time 19
appointed for hearing proceedings, the registrar may adjourn the court or 20
commission and any business set down for the day to a day and time that 21
the registrar considers convenient. 22
employee to give information 23
State
324.(1) A person employed by the State must give the court or 24
commission, if the court or commission asks, information that the person 25
has knowledge of in an official capacity. 26
(2) The person must comply with the request despite an obligation under 27
an Act or law not to disclose information, unless the Act or law allows, 28
justifies or excuses a refusal to give it in evidence in legal proceedings. 29
s 325 229 s 326
Industrial Relations
4--Powers 1
Division
of commission's powers 2
Exercise
325.(1) The commission may, unless otherwise prescribed by or under 3
this Act,91 exercise its powers-- 4
(a) of its own initiative; or 5
(b) on application by-- 6
(i) a party to proceedings in which the power is to be exercised; 7
or 8
(ii) an organisation. 9
(2) The commission may, of its own initiative-- 10
(a) join 2 or more matters to be heard and decided by the 11
commission, whether the matters or any of them arise under this 12
or another Act; and 13
(b) hear and decide the matters in 1 proceeding. 14
proceedings 15
Interlocutory
326. In an industrial cause, the president, commission or registrar may 16
make orders, or give directions, the president, commission or registrar 17
considers just and necessary in relation to interlocutory proceedings to be 18
taken before the hearing of the cause, including proceedings about-- 19
(a) naming and joinder of parties; or 20
(b) persons to be served with notice of proceedings; or 21
(c) calling of persons to attend in proceedings; or 22
(d) particulars of the claims of the parties; or 23
(e) the issues to be referred to the court or commission; or 24
(f) admissions, discovery, interrogatories or inspection of documents 25
or property; or 26
91 See, for example, section 280 (Procedures for reopening).
s 327 230 s 328
Industrial Relations
(g) examination of witnesses; or 1
(h) costs of the interlocutory proceedings; or 2
(i) place, time and mode of hearing of the cause. 3
to order inquiry or taking of evidence 4
Power
327.(1) The commission, by order, may direct-- 5
(a) the registrar to conduct an inquiry into a matter the commission 6
requires information about for the exercise of the commission's 7
jurisdiction; or 8
(b) an appropriately qualified person to take evidence for the 9
commission about an industrial cause. 10
(2) The registrar or other person must comply promptly with the 11
direction and report, or give a record of evidence taken, to the commission. 12
(3) The registrar may call persons to attend before the registrar and 13
examine parties and witnesses for-- 14
(a) conducting an inquiry mentioned in subsection (1); or 15
(b) disposing of another matter referred to the registrar under this 16
Act. 17
(4) A person directed to take evidence under subsection (1) has all the 18
powers of the commission for-- 19
(a) calling witnesses; and 20
(b) requiring production of records. 21
to administer oath 22
Power
328. In exercising jurisdiction, the following persons may take evidence 23
on oath or statutory declaration, and for that purpose may administer an oath 24
or take a statutory declaration-- 25
(a) a person constituting the court, the commission or an Industrial 26
Magistrates Court; 27
(b) the registrar; 28
s 329 231 s 329
Industrial Relations
(c) a person directed by the commission to take evidence for the 1
commission. 2
incidental to exercise of jurisdiction 3
Powers
329. Except as otherwise prescribed by this Act or the rules, the court, 4
commission and registrar may-- 5
(a) at or before a hearing, take steps to find out whether all persons 6
who ought to be bound by a decision to be made in proceedings 7
have been called to attend or given notice of, the proceedings; and 8
(b) direct, for proceedings-- 9
(i) who the parties to the proceedings are; and 10
(ii) by whom the parties may be represented; and 11
(iii) persons to be called to attend the proceedings, if they have 12
not been called and it appears they should attend the 13
proceedings; and 14
(iv) parties to be joined or struck out; and 15
(v) who may be heard and on what conditions; and 16
(c) hear and decide an industrial cause in the way that appears best 17
suited for the purpose; and 18
(d) allow claims in the proceedings to be amended on terms that 19
appear fair and just; and 20
(e) correct, amend or waive an error, defect or irregularity in the 21
proceedings, whether substantive or formal; and 22
(f) give directions under a decision, that the court, commission or 23
registrar considers necessary for, or conducive and appropriate to, 24
the effective implementation of the decision; and 25
(g) hear and decide an industrial cause in the absence of a party, or of 26
a person who has been called to attend, or served with a notice to 27
appear, at the proceedings; and 28
(h) sit at any time and in any place for hearing and deciding an 29
industrial cause, and adjourn a sitting to any time and place; and 30
(i) refer technical matters, accounting matters, or matters involving 31
s 330 232 s 330
Industrial Relations
expert knowledge to an expert, and admit the expert's report in 1
evidence; and 2
(j) extend a prescribed or stated time, before or after expiry of the 3
time; and 4
(k) waive compliance with the rules. 5
to obtain data and expert evidence 6
Power
330.(1) If the commission wants expert evidence based on facts or 7
figures to decide an industrial cause, it may-- 8
(a) order the following persons to give it returns of the facts or 9
figures-- 10
(i) an organisation that is, or any of whose members are, party 11
to the proceedings; 12
(ii) an employer, or group of employers, who is a party to the 13
proceedings; and 14
(b) allow a person selected by it as an expert in a relevant respect to 15
prepare, from the returns, reports directed to matters that the 16
commission seeks to be informed on. 17
(2) A person preparing a schedule may show in it the particulars that-- 18
(a) are relevant to the cause; or 19
(b) the commission asks for. 20
(3) However, the person must not, without the commission's leave, 21
otherwise divulge to anyone (other than the commission)-- 22
(a) the name of the organisation that gave the return; or 23
(b) business information of a private or confidential nature extracted 24
from the return. 25
Maximum penalty--20 penalty units. 26
(4) A schedule, as far as possible, must extend beyond 1 year's operation 27
of a business or industry. 28
s 331 233 s 332
Industrial Relations
5--Decisions and enforcement 1
Division
generally 2
Decisions
331. The court or commission may, in an industrial cause-- 3
(a) make a decision it considers just, and include in the decision a 4
provision it considers appropriate for preventing or settling the 5
industrial dispute, or dealing with the industrial matter, the cause 6
relates to, without being restricted to any specific relief claimed by 7
the parties to the cause; or 8
(b) dismiss the cause, or refrain from hearing, further hearing, or 9
deciding the cause, if the court or commission considers-- 10
(i) the cause is trivial; or 11
(ii) further proceedings by the court or commission are not 12
necessary or desirable in the public interest; or 13
(c) order a party to the cause to pay another party the expenses, 14
including witness expenses, it considers appropriate. 15
decisions 16
Reserved
332.(1) The court or commission may reserve its decision in 17
proceedings. 18
(2) If a decision is reserved-- 19
(a) it may be pronounced at-- 20
(i) a continuation or resumption of the court or commission; or 21
(ii) a subsequent sitting of the court or commission; or 22
(b) the court or commission may give its written decision, signed by 23
the person or each of the persons constituting the court or 24
commission, to the registrar. 25
(3) The registrar must file a written decision in the registry and give a 26
copy of it to each of the parties to the industrial cause. 27
(4) When filed, a written decision has effect as if it had been pronounced 28
by the court or commission. 29
s 333 234 s 334
Industrial Relations
decisions to be in plain English 1
Commission
333. The commission must ensure the commission's written decisions 2
are-- 3
(a) in plain English; and 4
(b) structured in a way that makes a decision as easy to understand as 5
the subject matter allows. 6
of decisions and their execution 7
Extent
334.(1) In the exercise of its jurisdiction, the court or commission may-- 8
(a) make the decisions it considers necessary for-- 9
(i) doing complete justice in proceedings before it; and 10
(ii) the execution of the decision; and 11
(b) enforce its own decisions; and 12
(c) direct the issue of a writ or process; and 13
(d) impose and enforce a penalty, allowed or prescribed by this or 14
another Act, in the same way a Supreme Court judgment is 15
enforced. 16
(2) A decision of the court or commission-- 17
(a) must be drawn up and verified; and 18
(b) without limiting any other way of execution and recovery 19
prescribed by or under this Act, may be executed, recovered on, 20
and otherwise enforced; 21
as a judgment or order of a Supreme Court judge is drawn up, verified, 22
executed, recovered and otherwise enforced against the person, lands, and 23
goods of the party affected. 24
(3) For the effective operation of subsection (2), the Uniform Civil 25
Procedures Rules, as far as they may reasonably be applied, are to be 26
applied and complied with, with the amendments the court or commission 27
approves. 28
(4) The registrar, deputy registrars, sheriff, bailiffs and officers of the 29
Supreme Court, or of Magistrates Courts, are taken to be officers of the 30
s 335 235 s 336
Industrial Relations
court and commission for-- 1
(a) executing, recovering on, and otherwise enforcing decisions of the 2
court or commission; or 3
(b) imposing functions or conferring powers by the rules and of 4
performing the functions or exercising the powers. 5
osts 6
C
335.(1) The court or commission may order a party to an application to 7
pay costs incurred by another party only if satisfied-- 8
(a) the party made the application vexatiously or without reasonable 9
cause; or 10
(b) for an application for reinstatement--the party caused costs to be 11
incurred by the other party because of an unreasonable act or 12
omission connected with the conduct of the application. 13
(2) In this section-- 14
"costs" include legal and professional costs and disbursements and witness 15
expenses. 16
of amounts under orders 17
Recovery
336.(1) If the court or commission in proceedings orders an amount be 18
paid (as a penalty or otherwise), the registrar may issue a certificate, under 19
the seal of the court or commission, stating-- 20
(a) the amount payable; and 21
(b) who is to pay the amount; and 22
(c) to whom the amount is payable; and 23
(d) any conditions about payment. 24
(2) The amount may be recovered in proceedings as for a debt. 25
(3) When the certificate is filed in a court of competent jurisdiction in an 26
action for a debt of the amount, the order evidenced by the certificate is 27
enforceable as an order made by the court where the certificate is filed. 28
(4) This section does not limit other ways in which amounts may be 29
s 337 236 s 338
Industrial Relations
recovered on an order of the court or commission. 1
(5) In this section-- 2
"registrar", for an order made by a magistrate on remission from the 3
commission under section 278,92 means the registrar of the 4
Magistrates Court. 5
6--Protections and immunities 6
Division
and immunities 7
Protection
337.(1) The president, the commission and a magistrate, in the exercise 8
of jurisdiction for this or another Act have the protection and immunities of 9
a Supreme Court judge exercising the jurisdiction of a judge. 10
(2) The president, the commission, a magistrate or the registrar (the 11
"official") has, in proceedings for defamation for a publication made to or 12
by the official in the official's official capacity, a defence of absolute 13
privilege if the publication was made in good faith. 14
(3) The burden of proving absence of good faith is on a person who 15
alleges the absence. 16
7--Rules and practice 17
Division
18
Rules
338.(1) The Governor in Council may make rules under this Act. 19
(2) The rules may only be made with the consent of the president. 20
(3) The president must consult with-- 21
(a) for a rule relating to the Industrial Magistrates Court--the Chief 22
Stipendiary Magistrate; or 23
(b) for a rule relating to the registry--the registrar; or 24
92 Section 278 (Power to recover unpaid wages and superannuation contribution
etc.)
s 338 237 s 338
Industrial Relations
(c) otherwise--2 commissioners. 1
(4) Rules may be made about the following matters-- 2
(a) regulating the practice and procedure to be followed and used-- 3
(i) in or for proceedings in the court, commission or Industrial 4
Magistrates Court and before the registrar; or 5
(ii) in or for drawing up, settling and enforcing decisions, 6
convictions and actions made, recorded or done by the court, 7
commission or registrar; 8
(b) publishing decisions and other actions of the court, commission 9
or registrar and the effect of the publication; 10
(c) recovering fines and penalties imposed; 11
(d) enforcing orders for attachment or imprisonment and orders for 12
the payment of amounts made by the court or commission; 13
(e) fees and expenses payable to witnesses; 14
(f) fees payable in relation to proceedings in the court or 15
commission, or before the registrar and the party by whom the 16
fees are to be paid; 17
(g) service of process, notices, orders or other things on parties and 18
other persons; 19
(h) the functions and powers of officers of the court or commission; 20
(i) delegating the jurisdiction of the commission as permitted by this 21
Act; 22
(j) requiring organisations or other entities to give returns, lists of 23
officers or members and other statistical information to the 24
registrar; 25
(k) providing for all matters necessary or expedient to be provided for 26
to allow for-- 27
(i) the full and effective exercise of jurisdiction and powers of 28
the court, commission, Industrial Magistrates Court and 29
registrar; and 30
(ii) giving effect to the decisions, convictions and actions made, 31
recorded, or done by the court, the commission, a 32
s 339 238 s 340
Industrial Relations
magistrate, the registrar, or an officer of the court or 1
commission. 2
(5) Rules made under this section are subordinate legislation. 3
about practice 4
Directions
339.(1) Subject to this Act and the rules, the practice and procedure of the 5
court, the commission, an Industrial Magistrates Court or the registrar is as 6
directed by the president, a commissioner, a magistrate or the registrar. 7
(2) If a person wishes to take a step in an industrial cause or a proposed 8
cause and this Act or the rules do not provide or sufficiently provide for it, 9
application for directions may be made to the appropriate person mentioned 10
in subsection (1). 11
CHAPTER 9--APPEALS 12
1--Appeals to Court of Appeal 13
Division
from court or full bench 14
Appeal
340.(1) A defendant who is dissatisfied with a decision of the court in 15
proceedings mentioned in section 25193 may appeal to the Court of Appeal. 16
(2) The Minister, or a person who is dissatisfied with a decision of the 17
full bench, may appeal to the Court of Appeal only on the ground of-- 18
(a) error of law; or 19
(b) excess, or want, of jurisdiction. 20
(3) Subsection (2) applies only if the constitution of the full bench 21
included the president. 22
(4) The Court of Appeal may-- 23
93 Section 251 (Contempt of court)
s 341 239 s 341
Industrial Relations
(a) dismiss the appeal; or 1
(b) allow the appeal, set aside the decision and substitute another 2
decision; or 3
(c) allow the appeal and amend the decision; or 4
(d) allow the appeal, suspend the operation of the decision and remit 5
the industrial cause (with or without directions) to the court or full 6
bench-- 7
(i) for report to the Court of Appeal; or 8
(ii) to act according to law. 9
Division 2--Appeals to court 10
from commission, magistrate or registrar 11
Appeal
341.(1) The Minister, or a person dissatisfied with a decision of the 12
commission (other than a determination under section 14994 or a decision 13
made by a full bench the constitution of which included the president) or 14
registrar, may appeal against the decision to the court only on the ground 15
of-- 16
(a) error of law; or 17
(b) excess, or want, of jurisdiction. 18
(2) A person may appeal to the court if dissatisfied with a decision of a 19
magistrate under section 29295 in relation to-- 20
(a) the matters stated in section 292; or 21
(b) the powers provided for in section 408.96 22
(3) The court may-- 23
(a) dismiss the appeal; or 24
(b) allow the appeal, set aside the decision and substitute another 25
94 Section 149 (Arbitration if conciliation unsuccessful)
95 Section 292 (Magistrate's jurisdiction)
96 Section 408 (Recovery of unpaid superannuation contribution)
s 342 240 s 342
Industrial Relations
decision; or 1
(c) allow the appeal and amend the decision; or 2
(d) allow the appeal, suspend the operation of the decision and remit 3
the industrial cause, with or without directions, to the 4
commission, an Industrial Magistrates Court or the registrar to act 5
according to law. 6
Division 3--Appeals to full bench 7
from commission, magistrate or registrar 8
Appeal
342.(1) A person dissatisfied with a decision of the commission may 9
appeal against the decision to the full bench, with the full bench's leave, on a 10
ground other than-- 11
(a) error of law; or 12
(b) excess, or want, of jurisdiction. 13
(2) However, if a person wants to appeal against a decision of the 14
commission both on a ground mentioned in section 341(1) and on a ground 15
mentioned in subsection (1), the person may only appeal against the 16
decision to the full bench, with the full bench's leave. 17
(3) The full bench must, and may only, give leave for subsection (1) 18
or (2) if it considers the matter is important enough, in the public interest, to 19
give leave. 20
(4) Also, the Minister may appeal against a decision of the commission 21
to the full bench. 22
(5) A person dissatisfied with a decision of a magistrate under this Act, 23
other than a decision mentioned in section 341(2), may appeal against the 24
decision to the full bench. 25
(6) A person dissatisfied with a decision of the registrar, other than a 26
decision mentioned in section 287(9), 241(1) or 695,97 or mentioned in 27
97 Section 287 (General rulings)
Section 241 (Right to refuse to work if imminent health or safety risk)
Section 695 (Student's work permit)
s 343 241 s 343
Industrial Relations
section 341(1) may appeal against the decision to the full bench. 1
(7) A person dissatisfied with a decision of the registrar under 2
section 287(9) may appeal against the decision to the full bench as it was 3
constituted when the general ruling under section 287 was made. 4
(8) The full bench may-- 5
(a) dismiss the appeal; or 6
(b) allow the appeal, set aside the decision and substitute another 7
decision; or 8
(c) allow the appeal and amend the decision; or 9
(d) allow the appeal, suspend the operation of the decision and remit 10
the industrial cause, with or without directions, to the 11
commission, an Industrial Magistrates Court or the registrar-- 12
(i) for report to the full bench; or 13
(ii) to act according to law. 14
Division 4--Appeals to commission 15
from registrar 16
Appeal
343.(1) A person dissatisfied with a decision of the registrar under 17
section 69598 may appeal against the decision to the commission. 18
(2) The commission may-- 19
(a) dismiss the appeal; or 20
(b) allow the appeal, set aside the decision and substitute another 21
decision; or 22
(c) allow the appeal and amend the decision; or 23
(d) allow the appeal and remit the matter, with or without directions, 24
to the registrar-- 25
98 Section 695 (Student's work permit)
s 344 242 s 344
Industrial Relations
(i) for report to the commission; or 1
(ii) to act according to law. 2
ppeal against stand-downs 3
A
344.(1) An employee stood down by an employer under section 98,99 4
may appeal to the commission against the stand-down. 5
(2) If the employee is a member of an employee organisation, the 6
organisation may institute and conduct the appeal for the employee. 7
(3) The commission may-- 8
(a) dismiss the appeal; or 9
(b) allow the appeal and order the employee be paid, within a stated 10
period, the wages lost by the employee because of the 11
stand-down; or 12
(c) if the employee remains stood down at the time of the 13
commission's decision-- 14
(i) allow the appeal; and 15
(ii) order the employer to provide for the resumption of work by 16
the employee, immediately or on a stated day; and 17
(iii) make an order about payment of wages mentioned in 18
paragraph (b). 19
(4) If the commission makes an order under subsection (3)(b), it may 20
include in the order default provisions for its enforcement, other than by 21
imprisonment, as if-- 22
(a) the commission were an Industrial Magistrates Court; and 23
(b) the member who makes the order were a magistrate. 24
(5) The order may be filed with the clerk of a Magistrates Court and on 25
filing may be enforced as an order made by an Industrial Magistrates Court. 26
99 Section 98 (Permissible stand-down of employee)
s 345 243 s 348
Industrial Relations
Division 5--General 1
for div 5 2
Definition
345. In this division-- 3
"industrial tribunal" means the Court of Appeal, court, full bench or 4
commission. 5
limited for appeal 6
Time
346.(1) An appeal against a decision must be commenced, as required 7
under the rules, within 21 days after-- 8
(a) if the decision is given at a hearing--the announcement of the 9
decision at the hearing; or 10
(b) if the decision is given through the registrar--the release of the 11
decision. 12
(2) However, on an application made during or after the 21 days, the 13
industrial tribunal may allow an appeal to be commenced within a longer 14
period. 15
of decision appealed against 16
Stay
347.(1) This section applies if an appeal is made under this part. 17
(2) The industrial tribunal may order that the decision being appealed be 18
wholly or partly stayed pending-- 19
(a) the determination of the appeal; or 20
(b) a further order of the industrial tribunal. 21
of appeal 22
Nature
348.(1) An appeal to an industrial tribunal is by way of rehearing on the 23
record. 24
(2) However, the industrial tribunal may hear evidence afresh, or hear 25
additional evidence, if the industrial tribunal considers it appropriate to 26
effectively dispose of the appeal. 27
s 349 244 s 349
Industrial Relations
of decisions 1
Finality
349.(1) This section applies to the following decisions-- 2
(a) a decision of the Court of Appeal under section 340; 3
(b) a decision of the court under section 341; 4
(c) a decision of the full bench under section 342; 5
(d) a decision of the commission under section 343 or 344; 6
(e) another decision of the court, the full bench, the commission, an 7
Industrial Magistrates Court or the registrar. 8
(2) The decision-- 9
(a) is final and conclusive; and 10
(b) can not be impeached for informality or want of form; and 11
(c) can not be appealed against, reviewed, quashed or invalidated in 12
any court. 13
(3) The industrial tribunal's jurisdiction is exclusive of any court's 14
jurisdiction and an injunction or prerogative order can not be issued, granted 15
or made in relation to proceedings in the court within its jurisdiction. 16
(4) This section does not apply to a decision mentioned in subsection (2) 17
to the extent that this Act or another Act provides for a right of appeal from 18
the decision. 19
(5) Subsection (2) is subject to section 340.100 20
(6) In this section-- 21
"industrial tribunal" includes an Industrial Magistrates Court and the 22
registrar. 23
100 Section 340 (Appeal from court or full bench)
s 350 245 s 351
Industrial Relations
CHAPTER 10--ENFORCEMENT 1
Division 1--Appointment 2
of inspectors 3
Appointment
350.(1) The Governor in Council may, by industrial gazette notice, 4
appoint a person as the chief inspector. 5
(2) The chief executive may appoint a person as an inspector. 6
(3) A person appointed as an inspector-- 7
(a) must be-- 8
(i) a public service officer or employee; or 9
(ii) a training consultant under the Vocational Education, 10
Training and Employment Act 1991; or 11
(iii) a person with the qualifications prescribed under a 12
regulation; and 13
(b) must have the necessary expertise or experience to be an 14
inspector. 15
(4) An inspector, while the inspector holds the appointment, is also an 16
inspector for-- 17
(a) the Pastoral Workers' Accommodation Act 1980; and 18
(b) the Trading (Allowable Hours) Act 1990; and 19
(c) the Workers' Accommodation Act 1952. 20
(5) An inspector is to be employed under the Public Service Act 1996. 21
unctions 22
F
351.(1) An inspector must-- 23
(a) ensure industrial instruments, permits and orders are, as far as 24
possible, complied with; and 25
(b) investigate and, when necessary, take action to deal with alleged 26
contraventions of this Act; and 27
s 352 246 s 353
Industrial Relations
(c) inform employees and employers of their rights and obligations 1
under this Act; and 2
(d) perform other functions-- 3
(i) given to an inspector under this or another Act; or 4
(ii) prescribed under a regulation. 5
(2) In doing so, the inspector must, when appropriate, have particular 6
regard to-- 7
(a) the needs of employees in a disadvantaged bargaining position 8
(including for example, women, people from a non-English 9
speaking background, young people, apprentices, trainees and 10
outworkers); and 11
(b) helping employees to balance work and family responsibilities. 12
13
Powers
352.(1) An inspector has the power to do all things necessary or 14
convenient to be done for, or in connection with, the performance of the 15
inspector's functions. 16
(2) An inspector may exercise a power in relation to a person only if the 17
inspector-- 18
(a) first produces his or her identity card for the person's inspection; 19
or 20
(b) has the inspector's identity card displayed so it is clearly visible to 21
the person. 22
(3) However, if for any reason it is not practicable to comply with 23
subsection (2) before exercising the power, the inspector must produce the 24
identity card for the person's inspection at the first reasonable opportunity. 25
Division 2--General powers 26
to places 27
Entry
353.(1) An inspector may, without the occupier's consent, enter-- 28
s 354 247 s 354
Industrial Relations
(a) a public place; or 1
(b) a workplace when-- 2
(i) the workplace is open for carrying on business; or 3
(ii) the workplace is otherwise open for entry. 4
(2) If the workplace is on or near domestic premises, an inspector may, 5
without the occupier's consent-- 6
(a) enter the land around the premises to an extent that is reasonable 7
to contact the occupier; or 8
(b) enter part of the place the inspector reasonably considers 9
members of the public are ordinarily allowed to enter when they 10
wish to contact the occupier. 11
(3) However, if it is practicable to do so before entering the land, the 12
inspector must first tell the occupier of the inspector's intention to gain 13
access to the workplace. 14
(4) In this section-- 15
"domestic premises" means premises usually occupied as a private 16
dwelling house. 17
"workplace" means a place in or on which the inspector reasonably 18
suspects a calling is, has been, or is about to be carried on. 19
powers after entering workplaces 20
General
354.(1) This section applies to an inspector who enters a workplace under 21
section 353. 22
(2) However, if an inspector enters a workplace to get the occupier's 23
consent to enter the workplace, this section applies to the inspector only if 24
the consent is given or the entry is otherwise authorised. 25
(3) For monitoring or enforcing compliance with this Act, the inspector 26
may-- 27
(a) inspect, photograph or film any part of the place or anything at the 28
workplace; or 29
(b) copy a document at the workplace; or 30
s 355 248 s 355
Industrial Relations
(c) take into or onto the workplace the persons, equipment and 1
materials the inspector reasonably requires for exercising a power 2
under this part; or 3
(d) require a person at the workplace to give the inspector reasonable 4
help to exercise the powers under paragraphs (a) to (c). 5
(4) When making a requirement under subsection (2)(d), the inspector 6
must warn the person it is an offence to fail to comply with the requirement, 7
unless the person has a reasonable excuse. 8
(5) A person required to give reasonable help under subsection (2)(d) 9
must comply with the requirement, unless the person has a reasonable 10
excuse. 11
Maximum penalty--40 penalty units. 12
to require documents to be produced 13
Power
355.(1) An inspector may require a person to produce for inspection, at a 14
reasonable time and place nominated by the inspector, a document relating 15
to employees, including, for example, a time sheet or pay sheet. 16
(2) The person must produce the document, unless the person has a 17
reasonable excuse. 18
Maximum penalty--40 penalty units. 19
(3) The inspector may keep the document to copy it. 20
(4) If the inspector copies it, the inspector may require the person 21
responsible for keeping the document to certify the copy as a true copy of 22
the document. 23
(5) The person must certify the copy, unless the person has a reasonable 24
excuse. 25
Maximum penalty--40 penalty units. 26
(6) The inspector must return the document to the person as soon as 27
practicable after copying it. 28
s 356 249 s 357
Industrial Relations
to require information 1
Power
356.(1) An inspector may, during business hours-- 2
(a) question with respect to matters under this Act or under a relevant 3
industrial instrument-- 4
(i) an employer in a calling; or 5
(ii) a person found in or on a place in or on which the inspector 6
reasonably suspects a calling is, has been, or is about to be 7
carried on; and 8
(b) require the employer or person to give the inspector information 9
to help the inspector ascertain whether this Act, or a relevant 10
industrial instrument, permit or order are being, have been or will 11
be complied with, or should be given operation in relation to the 12
calling. 13
(2) When making the requirement, the inspector must warn the employer 14
or person it is an offence not to comply with the requirement, unless the 15
person has a reasonable excuse. 16
(3) The person must comply with the requirement, unless the person has 17
a reasonable excuse. 18
Maximum penalty--40 penalty units. 19
(4) It is a reasonable excuse for an individual to fail to comply with the 20
requirement if doing so might tend to incriminate the individual. 21
(5) The power to question an employee includes power to question the 22
employee out of anyone else's hearing. 23
to require name and address 24
Power
357.(1) An inspector may require a person, for this Act, to state the 25
person's name and address. 26
(2) When making the requirement, the inspector must warn the person it 27
is an offence to fail to state the person's name or address, unless the person 28
has a reasonable excuse. 29
(3) The inspector may require the person to give evidence of the 30
correctness of the stated name or address if the officer reasonably suspects 31
the stated name or address is false. 32
s 358 250 s 358
Industrial Relations
(4) A person must comply with a requirement under subsection (1) 1
or (3), unless the person has a reasonable excuse. 2
Maximum penalty--40 penalty units. 3
3--Powers to claim and deal with unpaid amounts 4
Division
employee's wages etc. to inspector 5
Paying
358.(1) On an inspector's written demand, an employer must pay-- 6
(a) an employee's unpaid wages, including an unpaid tool allowance 7
required to be paid under an order made under section 138;101 and 8
(b) for an eligible employee-- 9
(i) the unpaid contributions payable under a relevant industrial 10
instrument for the employee by the employer to a complying 11
superannuation fund; and 12
(ii) an amount based on the return that would have accrued had 13
the contribution been properly paid to the fund. 14
Maximum penalty--40 penalty units. 15
(2) The payment must be made-- 16
(a) under subsection (1)(a)--to the inspector; or 17
(b) under subsection (1)(b)-- 18
(i) into a complying superannuation fund in the time specified 19
by the inspector; or 20
(ii) if not paid into a complying superannuation fund in the 21
specified time--to the inspector. 22
(3) A demand must not be made, or need not be complied with, if it 23
relates or would relate to unpaid wages for which an order for recovery 24
could not be made on an application under section 399.102 25
(4) An Industrial Magistrates Court that hears and decides a complaint 26
101 Section 138 (Order setting tool allowance)
102 Section 399 (Recovery of unpaid wages etc.)
s 359 251 s 359
Industrial Relations
against an employer for an offence against subsection (1)(a) or (b)-- 1
(a) apart from a penalty that it may impose; and 2
(b) whether or not it finds the employer guilty; 3
may order the employer to pay the employee the amount the court finds, on 4
the balance of probabilities, is payable to the employee. 5
(5) A court that finds an employer guilty of an offence against 6
subsection (1)(b) may make, in relation to the employer, an order that a 7
magistrate may make on an application made under section 408.103 8
(6) If an order is made, section 408 applies to it. 9
(7) In this section-- 10
"employee" includes a former employee. 11
obligation for amounts paid on demand 12
Inspector's
359.(1) An inspector who is paid an amount mentioned in section 358 13
must immediately give the payer a receipt for the amount. 14
(2) The receipt is a full discharge to the employer concerned for the 15
amount stated in the receipt. 16
(3) The inspector must pay the amount to-- 17
(a) for a superannuation contribution-- 18
(i) if the employee is employed by the employer--the approved 19
superannuation fund; or 20
(ii) if the employee is no longer employed by the employer-- 21
(A) the approved superannuation fund; or 22
(B) a complying superannuation fund; or 23
(C) a superannuation fund nominated by the employee; or 24
(D) an eligible rollover fund; or 25
(E) if the amount is less than the amount of total benefits 26
that may revert to an employee under the 27
103 Section 408 (Recovery of unpaid superannuation contribution)
s 360 252 s 360
Industrial Relations
Superannuation Industry (Supervision) Act 1993 1
(Cwlth)--the employee; or 2
(b) otherwise--the employee. 3
(4) If the inspector has not accounted for the amount within 30 days after 4
receiving it, the inspector must pay the amount immediately to the 5
department. 6
(5) The department must account for the amount in the way required by 7
subsection (3). 8
(6) However, the department must pay the amount into the unclaimed 9
moneys fund if-- 10
(a) the department can not locate the employee after making 11
reasonable inquiries; or 12
(b) the employee does not nominate a superannuation fund for 13
subsection (3) if requested by an inspector to do so. 14
(7) In this section-- 15
"employee" includes a former employee. 16
"superannuation contribution" means-- 17
(a) an employer's contribution to an approved superannuation fund to 18
the credit of an eligible employee, which is unpaid; or 19
(b) an amount mentioned in section 358(1)(b)(ii). 20
Division 4--General 21
inspectors 22
Obstructing
360. A person must not obstruct an inspector in the exercise of a power, 23
unless the person has a reasonable excuse. 24
Maximum penalty--40 penalty units. 25
s 361 253 s 363
Industrial Relations
inspectors 1
Impersonating
361. A person must not pretend to be an inspector. 2
Maximum penalty--40 penalty units. 3
of inspector's conduct despite administrative contravention 4
Validity
362. The failure of an inspector to comply with section 352(2) or (3) or 5
schedule 2, part 3, section 9104-- 6
(a) does not affect the lawfulness or effect of an act done or omission 7
made by the inspector for this Act; but 8
(b) makes the inspector liable to disciplinary action. 9
HAPTER 11--RECORDS AND WAGES 10
C
ART 1--EMPLOYERS RECORDS 11
P
1--Definitions 12
Division
for pt 1 13
Definitions
363. In this part-- 14
"authorised industrial officer" means a person who holds an authority in 15
force under section 364. 16
"record" includes a computer record if-- 17
(a) a print-out or disk containing the contents of the record relevant to 18
this part are separate from all other material in the print-out or 19
disk; and 20
(b) the print-out or disk gives the particulars required by this part 21
104 Section 352 (Powers) or schedule 2 (Appointments and procedures), part 3
(Inspectors), section 9 (Limitation on powers)
s 364 254 s 364
Industrial Relations
accurately and in a way convenient for an inspection under this 1
part. 2
"time and wages record"-- 3
(a) for an industrial instrument employee--see section 366;105 and 4
(b) for a non-industrial instrument employee--see section 367.106 5
Division 2--Authorised industrial officers 6
industrial officers 7
Authorising
364.(1) The registrar, on application by an organisation, may issue an 8
officer or employee of the organisation with an authority under this section. 9
(2) An authority may be subject to conditions stated in it. 10
(3) A person who holds an authority that is in force (an "authorised 11
industrial officer") may exercise the powers of an authorised industrial 12
officer under this part. 13
(4) The authority-- 14
(a) must be applied for in the way prescribed under a regulation; and 15
(b) is in force for the term stated in it, unless it sooner stops being in 16
force for a reason mentioned in paragraph (c); and 17
(c) stops being in force-- 18
(i) on its revocation; or 19
(ii) on its suspension, for the period of suspension; or 20
(iii) on its holder ceasing to be an officer or employee of the 21
organisation that made the application or ceasing to be an 22
authorised industrial officer acceptable to the organisation. 23
(5) When an authority stops being in force under subsection (4)(c)(iii), 24
the organisation who applied for it-- 25
105 Section 366 (Time and wages record--industrial instrument employees)
106 Section 367 (Time and wages record--non-industrial instrument employees)
s 365 255 s 366
Industrial Relations
(a) must notify the registrar within 14 days after the authorisation 1
stops being in force; and 2
(b) on the registrar's request, must surrender the authority to the 3
registrar. 4
Maximum penalty for subsection (5)--16 penalty units. 5
and suspending industrial officer's authorisation 6
Revocation
365.(1) This section applies if, on application by an employer, the 7
commission considers an authorised industrial officer has-- 8
(a) breached a condition of the authorisation; or 9
(b) contravened section 372(2);107 or 10
(c) exercised the officer's power to enter in an unreasonable or 11
vexatious way; or 12
(d) made unreasonable, vexatious or inappropriate use of information 13
obtained from inspection of a record made available because of 14
the officer's power as an authorised industrial officer. 15
(2) The commission may-- 16
(a) revoke the officer's authorisation; or 17
(b) suspend the officer's authorisation for a period it considers 18
appropriate; or 19
(c) attach conditions to the officer's authorisation it considers 20
appropriate. 21
3--Employers to keep certain records 22
Division
and wages record--industrial instrument employees 23
Time
366.(1) An employer must keep, at a workplace in Queensland, a time 24
and wages record that contains the following particulars for each industrial 25
instrument employee-- 26
107 Section 372 (Right of entry--authorised industrial officer)
s 366 256 s 366
Industrial Relations
(a) the employee's full name and address; 1
(b) the employee's date of birth; 2
(c) for each pay period-- 3
(i) the employee's designation; and 4
(ii) the name of the industrial instrument or permit under which 5
the employee is working; and 6
(iii) the number of hours worked by the employee during each 7
day and week, the times at which the employee started and 8
stopped work, and details of work breaks including meal 9
breaks; and 10
(iv) if the industrial instrument or permit provides for-- 11
(A) a weekly, daily or hourly wage rate--details of the 12
wage rate for each week, day, or hour at which the 13
employee is paid; or 14
(B) piecework rates--details of the piecework performed 15
and the rate at which payment is made to the employee; 16
and 17
(v) the gross and net wages paid to the employee; and 18
(vi) details of any deductions made from the wages; and 19
(vii) contributions made by the employer to a superannuation 20
fund; 21
(d) if an employee's entitlement to long service leave is worked out 22
under section 47108--the total hours, other than overtime, worked 23
by the employee since the start of the period to which the 24
entitlement relates, worked out to and including 30 June in each 25
year; 26
(e) details of sick leave credited or approved, and sick leave payments 27
to the employee; 28
(f) the date when the employee became an employee of the 29
employer; 30
108 Section 47 (Continuity of service--additional considerations for casual
employees)
s 367 257 s 367
Industrial Relations
(g) if appropriate, the date when the employee stopped employment 1
with the employer; 2
(h) other particulars necessary to show compliance with the hours of 3
work, wage rates and general employment conditions provided 4
under the instrument, permit or order under chapter 5, part 5.109 5
Maximum penalty--40 penalty units. 6
(2) If the industrial instrument does not limit the employee's daily or 7
weekly working hours, particulars of the employee's starting and finishing 8
times each day need not be recorded, unless the instrument requires it. 9
(3) The employer must keep the record for 6 years. 10
Maximum penalty--40 penalty units. 11
(4) On the employee's request, the employer must give the employee a 12
certificate stating the total hours recorded under subsection (1)(d) for the 13
employee, worked out to the previous 30 June. 14
Maximum penalty--40 penalty units. 15
(5) In this section-- 16
"industrial instrument employee" means a person who-- 17
(a) is employed by the employer; and 18
(b) works under an industrial instrument or a permit. 19
and wages record--non-industrial instrument employees 20
Time
367.(1) An employer must keep, at a workplace in Queensland, a time 21
and wages record that contains the following particulars for each 22
non-industrial instrument employee-- 23
(a) for each pay period-- 24
(i) the employee's designation; and 25
(ii) the employee's wage rate; and 26
(iii) the gross and net wages paid to the employee; and 27
109 Chapter 5, part 5 (Wages and employment conditions for apprentices and
trainees)
s 368 258 s 368
Industrial Relations
(iv) details of any deductions made from the wages; 1
(b) if an employee's entitlement to long service leave is worked out 2
under section 47--the total hours, other than overtime, worked by 3
the employee since the start of the period to which the entitlement 4
relates, worked out to and including 30 June in each year. 5
Maximum penalty--40 penalty units. 6
(2) The employer must keep the record for 6 years. 7
Maximum penalty--40 penalty units. 8
(3) On the employee's request, the employer must give the employee a 9
certificate stating the total hours recorded under subsection (1)(b) for the 10
employee, worked out to the previous 30 June. 11
Maximum penalty--40 penalty units. 12
(4) In this section-- 13
"non-industrial instrument employee" means a person who-- 14
(a) is employed by the employer; and 15
(b) works other than under an industrial instrument or a permit. 16
register 17
Employee
368.(1) An employer must keep an employee register that contains the 18
following particulars for each employee-- 19
(a) the employee's full name and residential address; 20
(b) for a person who is residing other than at the person's permanent 21
residence when the person becomes an employee--the person's 22
permanent residential address and the address of the person's 23
other residence; 24
(c) the calling in which the employee is engaged; 25
(d) the date when the employee became an employee of the 26
employer; 27
(e) if appropriate, the date when the employee stopped employment 28
with the employer. 29
Maximum penalty--40 penalty units. 30
s 369 259 s 370
Industrial Relations
(2) If an employer has more than 100 employees and the register is not 1
an alphabetical index itself, the employer must keep an alphabetical index of 2
the employee's names. 3
Maximum penalty--40 penalty units. 4
(3) The index may be in a loose leaf, computer print-out or card index 5
form. 6
(4) Within 14 days after a change in an employee's calling, the employer 7
must enter in the register particulars of the change and the date when the 8
change happened. 9
Maximum penalty--40 penalty units. 10
(5) An employee must inform the employer of-- 11
(a) the employee's residential address whenever asked by the 12
employer; and 13
(b) if the employee changes the employee's residential address--the 14
new address immediately. 15
Maximum penalty--40 penalty units. 16
(6) Particulars must be entered in a register opposite and relative to the 17
name of the employee to which they relate. 18
(7) If an employer carries on business at more than 1 place, the employer 19
must keep a register and index for each place. 20
to be kept in English 21
Records
369. A record or index kept under this part must be in the English 22
language. 23
of wages details 24
Notation
370.(1) When paying an employee wages, the employer must state how 25
the payment is made up by giving a written statement to the employee. 26
Maximum penalty--40 penalty units. 27
(2) The statement may be given on the employee's pay envelope or 28
advice and must include the following particulars-- 29
s 371 260 s 371
Industrial Relations
(i) ordinary wage rate; and 1
(ii) overtime wage rate; 2
(d) the ordinary hourly rate and the amount paid at that rate; 3
(e) the overtime hourly rate and the amount paid at that rate; 4
(f) the gross wages paid; 5
(g) the net wages paid; 6
(h) details of any deductions made from the wages; 7
(i) the amount of contribution paid to a superannuation fund. 8
Division 4--Power to inspect certain records 9
of time and wages record--inspector 10
Inspection
371.(1) An inspector may inspect a time and wages record at a workplace 11
in the employer's business hours. 12
(2) The employer must allow the inspector to inspect the record. 13
Maximum penalty--40 penalty units. 14
(3) Subsection (4) applies if-- 15
(a) an employer does not produce the record to the inspector; or 16
(b) an inspector is obstructed during the inspection of the record; or 17
(c) an inspector wants to inspect the record of a former employer. 18
(4) The inspector may, by notice, require the employer or former 19
employer to produce the record-- 20
(a) at-- 21
(i) a stated workplace of the employer; or 22
(ii) for an employer who has no official workplace or a former 23
employer--a reasonably convenient place nominated by the 24
inspector; and 25
(b) at a stated reasonable time. 26
(5) If the employer or former employer does not produce the record as 27
s 372 261 s 372
Industrial Relations
required by the notice, the employer or former employer is taken to have 1
failed to keep the record, unless he or she has a reasonable excuse. 2
(6) The notice may be given by post or in another way. 3
of entry--authorised industrial officer 4
Right
372.(1) An authorised industrial officer may enter a workplace at which 5
an employer carries on a registered calling, during the employer's business 6
hours, to exercise a power under section 373. 7
(2) On entering the workplace, the officer must first-- 8
(a) notify the employer or the employer's representative of the 9
officer's presence; and 10
(b) produce the officer's authorisation, if required by the employer or 11
representative. 12
(3) An employer must not refuse an authorised industrial officer entry to 13
the workplace if the officer complies with subsection (2). 14
Maximum penalty--27 penalty units. 15
(4) If the officer does not comply with subsection (2), the officer may be 16
treated as a trespasser. 17
(5) Subsection (2) does not apply if on entering the workplace, the officer 18
discovers that neither the employer nor an employer's representative having 19
charge of the workplace is present. 20
(6) The officer may discuss any other matter with a member employee, 21
or an employee who is eligible to become a member of the officer's 22
organisation, during non-working time. 23
(7) A person must not obstruct the officer exercising a power under 24
subsection (6). 25
Maximum penalty--27 penalty units. 26
(8) The officer must not-- 27
(a) wilfully obstruct the employer, or an employee during the 28
employee's working time; or 29
(b) contravene a requirement of this section. 30
s 373 262 s 373
Industrial Relations
Maximum penalty--27 penalty units. 1
(9) A person must not act as an authorised industrial officer under this 2
section, unless the person holds a current authority. 3
Maximum penalty--27 penalty units. 4
to inspect and request information--authorised industrial 5
Right
officer 6
373.(1) This section applies to an authorised industrial officer who has 7
entered a workplace under section 372. 8
(2) The officer may inspect the time and wages record of-- 9
(a) a member employee; or 10
(b) an employee who is eligible to become a member of the officer's 11
organisation; or 12
(c) an employee who is a party to a QWA or ancillary document, but 13
only with the employee's written consent. 14
(3) The employer-- 15
(a) must allow the officer to inspect the record for an employee 16
mentioned in subsection (2)(a) or (b), unless the employee has 17
made a written request to the employer that the record not be 18
available for inspection by an authorised industrial officer or a 19
particular authorised industrial officer; and 20
(b) must not allow the officer to inspect the record for-- 21
(i) an employee who has made a written request to the 22
employer that the record not be available for inspection by an 23
authorised industrial officer or a particular authorised 24
industrial officer; or 25
(ii) an employee mentioned in subsection (2)(c), unless the 26
employee has given written consent. 27
Maximum penalty--27 penalty units. 28
(4) A person must not, by threats or intimidation, persuade or attempt to 29
persuade an employee or prospective employee to make, or refuse to make, 30
a written request to the employer or prospective employer that the record not 31
s 373 263 s 373
Industrial Relations
be available for inspection by an authorised industrial officer. 1
Maximum penalty--27 penalty units. 2
(5) If the employer keeps particulars other than those mentioned in 3
section 366110 in the record, the employer need not make the other 4
particulars available for inspection. 5
(6) The officer may discuss matters under this Act with the following 6
persons during working or non-working time-- 7
(a) the employer; 8
(b) a member employee, or an employee who is eligible to become a 9
member of the officer's organisation. 10
(7) The officer may discuss any other matter with a member employee, 11
or an employee who is eligible to become a member of the officer's 12
organisation, during non-working time. 13
(8) A person must not obstruct the officer exercising a power under 14
subsection (6) or (7). 15
Maximum penalty--27 penalty units. 16
(9) The officer must not-- 17
(a) wilfully obstruct the employer, or an employee during the 18
employee's working time; or 19
(b) contravene a requirement of this section. 20
Maximum penalty--27 penalty units. 21
(10) A person must not act as an authorised industrial officer under this 22
section, unless the person holds a current authorisation. 23
Maximum penalty--27 penalty units. 24
(11) In this section-- 25
"member employee" means-- 26
(a) an employee who is a member of the authorised industrial 27
officer's organisation; or 28
(b) a former employee who was, or is, a member of the officer's 29
110 Section 366 (Time and wages record--industrial instrument employees)
s 374 264 s 375
Industrial Relations
organisation. 1
"time and wages record" means the time and wages record required to be 2
kept under section 366. 3
of employee register and index--registrar 4
Inspection
374.(1) The registrar may inspect an employer's employee register and 5
index at the employer's workplace during the employer's business hours. 6
(2) The employer must allow the registrar to inspect the record or index. 7
Maximum penalty--40 penalty units. 8
(3) The registrar may, by notice, direct the employer to give the register 9
or index to a stated person, at a stated reasonable time and place, if-- 10
(a) the registrar requires a register or index for the taking of a ballot; 11
or 12
(b) the court or commission orders the register or index be made 13
available for another purpose. 14
(4) The employer must comply with the direction. 15
Maximum penalty for subsection (4)--40 penalty units. 16
of time and wages book--employees 17
Inspection
375.(1) An employee may inspect the time and wages record for the 18
employee's particulars relating to the 12 month period before the inspection. 19
(2) At the employer's discretion, the employer may give the particulars to 20
the employee in writing. 21
(3) Unless the employer otherwise consents, the employee may inspect 22
the record only-- 23
(a) once in any 12 month period; and 24
(b) during the employer's business hours, but outside the employee's 25
working time. 26
s 376 265 s 376
Industrial Relations
ART 2--WAGES AND OCCUPATIONAL 1
P
SUPERANNUATION 2
1--Interpretation 3
Division
for pt 2 4
Definitions
376. In this part-- 5
"assignment" includes disposition and charge, whether legal or equitable. 6
"contracted work" means work that is, or is to be, performed under a 7
contract or undertaking (whether written or unwritten). 8
"employer", in division 2, means the person-- 9
(a) with whom a prime contractor has contracted to perform work; or 10
(b) who has an obligation to a prime contractor to perform work. 11
"fixed rate", in division 3,111 means the rate fixed by an industrial 12
instrument or a permit. 13
"mine", in division 4,112 means a mine within the meaning of the Mines 14
Regulation Act 1964. 15
"mortgagee", in division 4, means a person entitled to payment under the 16
security of an instrument of mortgage, crop lien, stock mortgage or bill 17
of sale. 18
"mortgagor", in division 4, means a person liable to pay a mortgagee 19
under an instrument of mortgage, crop lien, stock mortgage or bill of 20
sale. 21
"prime contractor" means-- 22
(a) a person (the "contractor") who contracts with someone else for 23
the performance of work by the other person, or at whose request, 24
or on whose credit or behalf and with whose knowledge and 25
consent, work is performed; or 26
111 Division 3 (Paying and recovering wages)
112 Division 4 (Wages in rural and mining industries)
s 377 266 s 379
Industrial Relations
(b) a person, claiming under the contractor, whose rights are acquired 1
after the work begins. 2
"rate", in division 3, includes price. 3
"subcontractor" means a person who contracts with an employer to 4
perform work to discharge the employer's obligation to a prime 5
contractor. 6
to service 7
References
377. A reference in this part to service on a person includes reference to 8
service on the person's agent. 9
Division 2--Protection for wages 10
are first charge on amounts payable to employer 11
Wages
378.(1) Wages payable to employees employed on any contracted work 12
are, subject to the prime contractor's rights as prescribed under this Act, a 13
first charge on the amount payable to the employer by the prime contractor 14
for the work. 15
(2) Until a notice of attachment under section 381113 is served on the 16
prime contractor, the prime contractor may pay the employer all amounts 17
payable for the contracted work. 18
of amount payable ineffectual against claims for wages 19
Assignment
379.(1) This section applies to an assignment by an employer of amounts 20
that have become, or are to become, payable to the employer by a prime 21
contractor for contracted work. 22
(2) The assignment is of no effect as against wages payable, or to 23
become payable, to employees employed by the employer in performance 24
of the work. 25
(3) Subsection (2) does not apply if the assignment is to the employees 26
113 Section 381 (Attachment notices)
s 380 267 s 380
Industrial Relations
employed by the employer in performance of the work concerned for wages 1
payable, or to become payable, to them for performing the work. 2
paid or payable to employer to be applied in payment of 3
Amounts
wages 4
380.(1) This section applies to amounts paid or payable to an employer 5
by a prime contractor for contracted work. 6
(2) The amount is not liable to be attached or charged, except by 7
employees mentioned in subsection (5), until all wages payable, or to 8
become payable, to the employees have been properly paid to them or have 9
been secured to them in a way approved by a magistrate. 10
(3) The employer must apply the amounts received, to the extent 11
necessary, in payment of wages payable, or to become payable, to 12
employees employed by the employer in performance of work for which 13
the amounts are received. 14
Maximum penalty--40 penalty units. 15
(4) The employer must keep an accurate written account of the amounts 16
received from the prime contractor, and of the way the amounts have been 17
disbursed or disposed of. 18
Maximum penalty--40 penalty units. 19
(5) The employer must produce the account for inspection to an 20
employee mentioned in subsection (3)-- 21
(a) whose wages are more than 8 days in arrears and are not paid 22
when demanded; and 23
(b) who asks to see the account. 24
Maximum penalty--40 penalty units. 25
(6) The employer must allow the employee to make a copy of the 26
account. 27
Maximum penalty--40 penalty units. 28
s 381 268 s 382
Industrial Relations
notices 1
Attachment
381. An employee, whose wages remain unpaid for 24 hours after they 2
are payable and have been demanded by the employee, may serve the prime 3
contractor with an attachment notice in the approved form. 4
of attachment notice 5
Effect
382.(1) This section applies if an attachment notice is served on the prime 6
contractor. 7
(2) The prime contractor must retain from the amounts payable, or to 8
become payable, by the prime contractor to the employer for the contracted 9
work an amount sufficient to satisfy-- 10
(a) the claim for wages specified in the notice; and 11
(b) all further claims for wages specified in notices of attachment 12
served on the prime contractor within 7 days after the service of 13
the first notice. 14
(3) At the end of the 7 day period, the amount claimed as wages and 15
specified in the notices is attached in the prime contractor's hands, and must 16
be kept by the prime contractor until-- 17
(a) a magistrate orders to whom, and in what way, the amount must 18
be paid; or 19
(b) the prime contractor deals with the amount under subsection (4); 20
or 21
(c) the notices are withdrawn. 22
(4) After being served with a notice, the prime contractor may pay the 23
amount to which the notice relates to a clerk of the Magistrates Court until-- 24
(a) a magistrate makes an order in relation to the amount; or 25
(b) the notice is withdrawn. 26
(5) The payment-- 27
(a) must be accompanied by the notice or a copy of it; and 28
(b) is a full discharge of the prime contractor from liability for the 29
amount paid and costs of proceedings for the amount. 30
s 383 269 s 383
Industrial Relations
(6) An amount paid to a clerk of the Magistrates Court may be paid out 1
only-- 2
(a) on the order of a magistrate; or 3
(b) if the relevant attachment notice is withdrawn. 4
(7) A prime contractor who fails to keep, or to pay under subsection (4), 5
an amount required by subsection (2) or (3) to be kept is personally liable to 6
each employee in the amount of the employee's claim for wages stated in 7
the employee's attachment notice served on the prime contractor. 8
(8) An employee who has served an attachment notice on a prime 9
contractor may withdraw the notice by giving notice of withdrawal to-- 10
(a) the prime contractor; and 11
(b) the employer to whom amounts are payable, or are to become 12
payable, by the prime contractor. 13
for payment by prime contractor or clerk of the court 14
Orders
383.(1) Subsection (2) applies if an employee who served an attachment 15
notice on a prime contractor obtains judgment from a magistrate against the 16
employer for the claim for wages. 17
(2) The magistrate may order the judgment be satisfied, wholly or partly, 18
by payment of a stated amount-- 19
(a) from amounts paid to the clerk of the Magistrates Court under 20
section 382(4); or 21
(b) if no amount was paid to the clerk under section 382(4) or the 22
amount paid was not enough to cover the amount ordered to be 23
paid by the magistrate--by the prime contractor. 24
(3) In deciding the amount that should be ordered to be paid for an 25
employee's claim, the magistrate must take into account the existence of 26
claims for wages of other employees of the employer of which the 27
magistrate has knowledge. 28
(4) Subject to any appeal against the magistrate's decision, the clerk or 29
prime contractor must pay the amount stated in the relevant order to the 30
employee from the amounts-- 31
(a) paid to the clerk under section 382(4); or 32
s 384 270 s 384
Industrial Relations
(b) attached and kept in the hands of the prime contractor. 1
(5) Payment must be made within 21 days after a copy of the order is 2
served on the clerk or prime contractor. 3
(6) If an appeal is started and notice of it is served, the clerk or prime 4
contractor must continue to keep or hold the amounts from which payment 5
is to be made until the appeal is finally decided or discontinued. 6
(7) The prime contractor is not liable to a greater extent than the amount 7
actually payable by the prime contractor to the employer when-- 8
(a) the order is served; or 9
(b) payment is made under the order; 10
whichever is the greater. 11
to be paid according to when attachment notices are served 12
Employees
384.(1) An amount attached in the hands of a prime contractor, or paid to 13
a clerk of the Magistrates Court, is to be paid in priority according to the 14
order of the service of the relevant attachment notices. 15
(2) However, for this section, all notices served within 7 days after the 16
service of the first notice are-- 17
(a) taken to have been served simultaneously with the first notice; and 18
(b) accorded equal priority to distribution of the amount attached or 19
paid. 20
(3) The claims for wages of all employees who are taken to have served 21
notices simultaneously must be paid in full, unless the amounts attached in 22
the hands of the prime contractor or held by the clerk are insufficient for the 23
purpose. 24
(4) If the amounts are insufficient for the purpose, the claims are to abate 25
in equal proportions among themselves. 26
(5) Subsection (1) is subject to sections 381 to 383.114 27
114 Section 381 (Attachment notices)
Section 382 (Effect of attachment notice)
Section 383 (Orders for payment by prime contractor or clerk of the court)
s 385 271 s 386
Industrial Relations
may sue prime contractor 1
Employee
385.(1) Subsection (2) applies if-- 2
(a) a prime contractor is served with a copy of the magistrate's order 3
made under section 383(2);115 and 4
(b) the amount stated in the order and payable by the prime contractor 5
is not paid in accordance with the order. 6
(2) The employee in whose favour the order is made may, in an 7
Industrial Magistrates Court and in the employee's own name, sue the 8
prime contractor for the amount stated in the order and unpaid, by way of 9
any action or proceedings the employer could have brought against the 10
prime contractor as if-- 11
(a) there had been no attachment of amounts under this part; and 12
(b) the amounts required by the attachment under section 381116 to be 13
kept were payable to the employer and unpaid. 14
(3) The employee's entitlement is subject to the prime contractor's right 15
to set off against the employee's claim all amounts-- 16
(a) properly paid by the prime contractor to the employer under 17
section 378(2);117 and 18
(b) the employer was, when the notice was served on the prime 19
contractor, liable to pay the prime contractor for a breach, or 20
non-performance, of the contract or undertaking in performance 21
of which the relevant work is or is to be performed. 22
of attachment not to prejudice prime contractor 23
Cessation
386.(1) This section applies if an order under section 383118 stops 24
operating because-- 25
(a) of satisfaction of the employee's claim; or 26
115 Section 383 (Orders for payment by prime contractor or clerk of the court)
116 Section 381 (Attachment notices)
117 Section 378 (Wages are first charge on amounts payable to employer)
118 Section 383 (Orders for payment by prime contractor or clerk of the court)
s 387 272 s 389
Industrial Relations
(b) it is set aside. 1
(2) A prime contractor who has paid an amount in accordance with the 2
order before receiving notice of the satisfaction or setting aside is not to be 3
prejudiced in relation to the payment because the order stopped operating. 4
by employee for payment received 5
Discharge
387. An employee who receives an amount for a claim for wages to 6
which an order under section 383 relates must sign a discharge for the 7
amount, in the approved form if asked by the person making the payment. 8
of subcontractor's employees 9
Remedy
388.(1) If an employer has let the performance of work to a 10
subcontractor, an employee employed by the subcontractor in that work has 11
the same rights and remedies for a claim for wages against the employer 12
under this division as an employee of the employer has against a prime 13
contractor. 14
(2) For subsection (1), in construing this division (other than 15
section 376119 and this section) `employer' is substituted for `prime 16
contractor' and `subcontractor' is substituted for `employee'. 17
contractor's right to reimbursement 18
Prime
389.(1) This section applies if-- 19
(a) a prime contractor has paid a claim for wages payable to an 20
employee of the employer, in satisfaction of the prime 21
contractor's obligations under this division; and 22
(b) either of the following happens-- 23
(i) for an employer who is a corporation--winding-up 24
proceedings are commenced; 25
(ii) for an employer who is an individual--the employer's assets 26
are distributed in insolvency of the employer or in a 27
composition with the employer's creditors. 28
119 Section 376 (Definitions for pt 2)
s 390 273 s 391
Industrial Relations
(2) The prime contractor is taken to have a claim for wages against the 1
employer's assets, which is a preferential claim, as if the prime contractor 2
were an employee of the employer to whom wages were payable by the 3
employer. 4
(3) This section applies only to the extent that a State law may validly 5
apply to the distribution of assets. 6
may hear claim for wages ex parte 7
Magistrate
390. A magistrate may hear and decide proceedings for a claim for 8
wages in the absence of a person to whom the originating process is 9
directed on proof, on oath or affirmation, of the service of the process. 10
3--Paying and recovering wages 11
Division
etc. to be paid without deduction 12
Wages
391.(1) If an employer employs an employee to perform work for a 13
fixed rate, the employer must pay the employee the fixed rate without 14
deduction, other than a deduction authorised by-- 15
(a) a relevant industrial instrument; or 16
(b) this division; or 17
(c) the employee's written consent. 18
(2) An employer must pay an apprentice or trainee the fixed rate without 19
deduction, other than a deduction mentioned in subsection (1)(a), (b) or (c) 20
until-- 21
(a) the apprentice or trainee is suspended or the apprentice's or 22
trainee's training agreement is cancelled; or 23
(b) the State Training Council has allowed the employer to stand 24
down the apprentice or trainee under the Vocational Education, 25
Training and Employment Act 1991. 26
(3) If-- 27
(a) an employer employs an employee to perform work for a rate 28
agreed between the employer and the employee; and 29
s 392 274 s 392
Industrial Relations
(b) either-- 1
(i) the rate for the work is not fixed by a relevant industrial 2
instrument or permit; or 3
(ii) the fixed rate is less than the agreed rate; 4
the employer must pay the employee the agreed rate without deduction, 5
other than a deduction authorised by this division or the employee's written 6
consent. 7
(4) A contract or authority is void to the extent it provides for a deduction 8
to be made from wages in contravention of this section. 9
apprentices or trainees for course time 10
Paying
392.(1) Time spent by an apprentice or trainee in undertaking an 11
approved course of instruction or qualification, up to the maximum number 12
of hours specified in the approval, is taken to be-- 13
(a) time worked for the employer; and 14
(b) ordinary working hours when calculating the apprentice's or 15
trainee's wages and employment conditions. 16
17
Example of paragraph (b)--
18
A trainee is required to work 38 ordinary working hours a week under
19
an award. In a particular week, the trainee spends 30 hours working for
20
the employer and 10 hours at college. The trainee is entitled to be
21
paid 38 hours ordinary time (which includes 10 hours ordinary time for
22
the time spent at college) and 2 hours overtime.
(2) Subsection (1) applies irrespective of the way the course is delivered. 23
24
Examples of ways specified course of instruction can be delivered--
25
Block release, day release, workplace-delivered training or correspondence.
(3) Despite subsection (1), wages are not payable for time spent by an 26
apprentice or trainee undertaking an approved course of instruction when the 27
apprentice or trainee is-- 28
(a) a student-- 29
(i) studying at a secondary school or tertiary institution; and 30
(ii) who has entered into an arrangement about the 31
s 393 275 s 393
Industrial Relations
apprenticeship or traineeship with the school or institution 1
and the employer; or 2
(b) the subject of a decision of the approving authority under 3
section 162 or 211. 4
(4) In this section-- 5
"approved course of instruction or qualification" means a course of 6
instruction or qualification, of a specified duration, approved under the 7
Vocational Education, Training and Employment Act 1991. 8
wages 9
Paying
393.(1) An employee's wages must be paid at least monthly to the 10
employee. 11
Maximum penalty--16 penalty units. 12
(2) The wages must be paid-- 13
(a) in Australian currency; or 14
(b) with the employee's written consent-- 15
(i) wholly or partly to the employee's credit in an account with a 16
financial institution nominated by the employee; or 17
(ii) by cheque of a type mentioned in subsection (5), draft, 18
money order or electronic fund transfer; or 19
(c) in another way allowed under a relevant industrial instrument. 20
Maximum penalty--16 penalty units. 21
(3) If-- 22
(a) wages are to be paid in cash; and 23
(b) the amount is not a multiple of 5c; 24
the amount may be rounded to the nearest amount that is a multiple of 5c, 25
even if this involves a reduction. 26
(4) If wages are to be paid other than in cash, they are to be paid without 27
deduction of any charge made because of the way payment is made. 28
Maximum penalty--16 penalty units. 29
s 394 276 s 394
Industrial Relations
(5) Except with the employee's written consent, a cheque by which 1
wages are paid-- 2
(a) must be payable to a bearer on demand; and 3
(b) must not be crossed. 4
(6) If wages are payable to an employee when the employee stops 5
employment with the employer, the wages must be paid to the employee 6
within 3 days after the employment stops, unless-- 7
(a) section 395 applies; or 8
(b) the employer has complied with an inspector's demand under 9
section 358.120 10
Maximum penalty--40 penalty units. 11
(7) If an employee accepts for wages a cheque, draft or money order that 12
is dishonoured, the employee may recover from the employer by action in a 13
court of competent jurisdiction as a debt payable to the employee-- 14
(a) the wages payable; and 15
(b) a reasonable amount for damages suffered by the employee 16
because of the dishonour. 17
(8) A contract or authority is void to the extent it provides for payment of 18
wages other than under this section. 19
not to stipulate mode of spending wages 20
Contract
394.(1) Subject to this division, an employer is not, directly or indirectly, 21
to impose as a condition, express or implied, of an employee's 22
employment, a provision about the place where, way in which, or person 23
with whom an employee's wages, or a part of the wages, are to be spent. 24
Maximum penalty--16 penalty units. 25
(2) An employer must not dismiss an employee because the employee's 26
wages, or a part of the wages, are spent, or not spent, at a place, in a way, or 27
with a person.121 28
120 Section 358 (Paying employee's wages etc. to inspector)
121 See section 73 (When is a dismissal unfair).
s 395 277 s 396
Industrial Relations
of unpaid wages if employee's whereabouts unknown 1
Payment
395.(1) Subsection (2) applies if-- 2
(a) an employer can not comply with section 391122 because the 3
former employee's whereabouts are unknown to the employer 4
and can not be discovered by the employer with reasonable 5
diligence; and 6
(b) the inability continues for 30 days after cessation of employment 7
by the former employee. 8
(2) The employer, immediately at the end of the 30 days, must pay the 9
wages payable to the former employee to the nearest clerk of the 10
Magistrates Court. 11
Maximum penalty--40 penalty units. 12
(3) The receipt of the clerk for the payment is a full discharge to the 13
employer for the amount stated in the receipt. 14
(4) The clerk must pay the amount-- 15
(a) if the former employee's whereabouts are discovered--to the 16
former employee; or 17
(b) if at the end of a further 30 days, the amounts have not been paid 18
to the former employee--to the department's funds for the 19
former employee. 20
(5) This section does not apply if the employer has complied with an 21
inspector's demand made under section 358.123 22
wages 23
Overpaid
396.(1) This division does not prevent an employer recovering an 24
amount paid to an employee that the employee is not entitled to because of 25
absence from work. 26
(2) Without limiting the employer's right to recover, the employer may 27
recover an amount to which the employee is not entitled by deducting 28
122 Section 391 (Wages etc. to be paid without deduction)
123 Section 358 (Paying employee's wages etc. to inspector)
s 397 278 s 399
Industrial Relations
amounts from the employee's wages for a subsequent pay period or 1
periods. 2
(3) Deductions under subsection (2)-- 3
(a) must be commenced within 1 year after the payment; and 4
(b) may extend over a period of 6 years after the payment. 5
(4) A deduction can not be made in an amount that would reduce the 6
wages payable to the employee for a pay period to less than an amount 7
prescribed under a regulation. 8
of wages in lieu of notice of termination 9
Deduction
397.(1) This section applies if-- 10
(a) an industrial instrument requires an employee to give notice of 11
termination of employment for a specified period; and 12
(b) an employee ceases the employment without giving the employer 13
the notice for the specified period. 14
(2) The employer may deduct from the employee's wages an amount 15
stated by the instrument to be forfeited or payable to the employer if notice 16
of termination is not given for the period specified. 17
may recover unpaid wages 18
Minor
398. A minor may bring proceedings under this Act for the minor's 19
wages in the same way, and to the same extent, as if the minor were 20
18 years. 21
of unpaid wages etc. 22
Recovery
399.(1) An application may be made to a magistrate for an order for 23
payment of-- 24
(a) an employee's unpaid wages; or 25
(b) an apprentice's unpaid tool allowance under section 138;124 or 26
124 Section 138 (Order setting tool allowance)
s 399 279 s 399
Industrial Relations
(c) remuneration lost by an apprentice or trainee because the 1
employer has contravened section 391(2).125 2
(2) The application may be made by-- 3
(a) the employee; or 4
(b) an employee organisation of which the employee is a member, 5
acting for the employee; or 6
(c) a person authorised by the employee to make the application, 7
acting for the employee; or 8
(d) an inspector. 9
(3) The application must be made within 6 years after the amount 10
claimed became payable. 11
(4) However, for an apprentice or trainee, the application can not relate to 12
an amount payable more than 4 years before the commencement of this 13
section. 14
(5) On hearing the application, the magistrate-- 15
(a) must order the employer to pay the employee the amount the 16
magistrate finds to be payable and unpaid to the employee within 17
the 6 years before the date of the application; and 18
(b) may make an order for the payment despite an express or implied 19
provision of an agreement to the contrary; and 20
(c) may order the payment to be made on the terms the magistrate 21
considers appropriate; and 22
(d) may award costs to either party in an amount assessed by the 23
magistrate. 24
(6) A person can not make an application under this section if an 25
application has been made under section 278126 for the same matter. 26
125 Section 391 (Wages etc. to be paid without deduction)
126 Section 278 (Power to recover unpaid wages and superannuation contribution
etc.)
s 400 280 s 401
Industrial Relations
of magistrate's order 1
Enforcement
400.(1) This section applies to an order of a magistrate for payment by an 2
employer of-- 3
(a) wages found to be payable; or 4
(b) an unpaid tool allowance required to be paid under an order made 5
under section 138(5);127 or 6
(c) contributions to an approved superannuation fund found to be 7
payable; or 8
(d) costs in proceedings relating to unpaid amounts mentioned in 9
paragraph (a) or (b). 10
(2) The order is enforceable under the Justices Act 1886 as an order for 11
payment of money made by justices under that Act. 12
(3) If an order is made, the amount ordered to be paid (including costs) is 13
a debt payable to the person, in whose favour the order is made, by the 14
employer. 15
(4) The order may be filed in the registry of a Magistrates Court under 16
the Magistrates Courts Act 1921, and on being filed-- 17
(a) is taken to be an order properly made by a Magistrates Court; and 18
(b) without limiting subsection (2), may be enforced as an order 19
made by a Magistrates Court. 20
Division 4--Wages in rural and mining industries 21
recoverable against mortgagee if mortgagor defaults 22
Wages
401.(1) This section applies if an employee-- 23
(a) has performed work-- 24
(i) in cultivating, or otherwise improving, land that is subject to 25
a mortgage; or 26
(ii) in cultivating, or otherwise in connection with, a crop that is 27
127 Section 138 (Order setting tool allowance)
s 401 281 s 401
Industrial Relations
subject to a lien; or 1
(iii) relating to animal or vegetable matter prepared or 2
manufactured by machinery that is subject to a bill of sale; or 3
(iv) in tending, feeding, driving, or otherwise in connection with, 4
stock that is subject to a mortgage; and 5
(b) is prevented from, or hindered in, recovering wages for the work 6
from the mortgagor as employer because-- 7
(i) the mortgagee has entered into, or taken possession of the 8
land, crop, machinery or stock, or is taken to have done so; 9
or 10
(ii) the mortgagee has sold the land, crop, machinery or stock, 11
under the mortgagee's security; or 12
(iii) a cheque, draft or order drawn by the mortgagor on the 13
mortgagee is dishonoured by the mortgagee. 14
(2) The mortgagee is taken to be the employee's employer for the 15
performance of the work. 16
(3) The mortgagor is taken, in engaging the employee for the work, to 17
have acted as the mortgagee's authorised agent. 18
(4) Subsections (2) and (3) do not affect appropriate accounting as 19
between the mortgagor and the mortgagee. 20
(5) A mortgagee is not liable for the employee's wages that have become 21
payable more than 6 months before whichever of the following events 22
happens first-- 23
(a) the employee first applies to the mortgagee for payment of the 24
wages; 25
(b) the mortgagee takes possession of, or sells, the land, crop, 26
machinery or stock. 27
(6) The mortgagee's liability under this section-- 28
(a) is additional to the mortgagor's liability for the employee's 29
wages; and 30
(b) does not affect rights, liabilities, functions and powers as between 31
the mortgagor and employee. 32
s 402 282 s 403
Industrial Relations
(7) An employee does not lose a right to bring proceedings against the 1
mortgagee for unpaid wages, and costs of the proceedings, if the 2
employee-- 3
(a) brings proceedings against a mortgagor for wages, whether or not 4
the employee obtains an order for payment against the mortgagor; 5
and 6
(b) because of a reason in subsection (1)(b), fails to obtain payment 7
of the wages, or part of the wages, from the mortgagor. 8
warrant levied on property of mortgagor or mortgagee 9
Distress
402.(1) A warrant of distress issued to enforce an order for payment of 10
an employee's wages for work performed in connection with property 11
mentioned in section 401(1), as far as the land, crop, machinery or stock is 12
concerned-- 13
(a) authorises distress on and sale of the mortgagee's property and 14
the mortgagor's property; and 15
(b) may be executed on the mortgaged land or the encumbered crop, 16
machinery, or stock even though the mortgagee has entered into 17
or taken possession of the land, crop, machinery or stock, or is 18
taken to have done so, under the mortgagee's security. 19
(2) An amount paid by, or recovered from, the mortgagee for the 20
wages-- 21
(a) is taken to be an advance made by the mortgagee to the mortgagor 22
under the mortgagee's security; and 23
(b) may be recovered by the mortgagee under the security. 24
(3) In this section-- 25
"land" includes the fixtures on the land. 26
of ss 401 and 402 to mines 27
Application
403.(1) Sections 401 and 402 apply, with necessary changes, if an 28
employee-- 29
(a) has performed work in or about-- 30
s 404 283 s 404
Industrial Relations
(i) a mine, including its fixtures, that is subject to a mortgage; or 1
(ii) machinery or apparatus, used in or for a mine, that is subject 2
to a bill of sale; and 3
(b) is prevented from, or hindered in, recovering wages for the work 4
from the mortgagor as employer because-- 5
(i) the mortgagee has entered into, or taken possession of, the 6
mine, machinery or apparatus, or is taken to have done so; or 7
(ii) has sold the mine, machinery or apparatus, under the 8
mortgagee's security; or 9
(iii) a cheque, draft or order drawn by the mortgagor on the 10
mortgagee is dishonoured by the mortgagee. 11
(2) However, a mortgagee is not liable for the employee's wages that 12
have become payable more than 1 month before whichever of the following 13
events happens first-- 14
(a) the employee first applies to the mortgagee for payment of the 15
wages; 16
(b) the mortgagee takes possession of, or sells, the mine, machinery 17
or apparatus. 18
(3) In this section-- 19
"wages" for work includes earnings for work. 20
in payment of wages earned in mine 21
Priority
404.(1) An amount of wages, of not more than 4 weeks, payable to an 22
employee for employment in or about a mine-- 23
(a) is a first charge on the claim or land in or on which the mine is 24
situated; and 25
(b) in the winding-up of a corporation formed for or engaged in 26
working the mine, must be paid in priority to all other debts, 27
secured or unsecured, of the corporation. 28
(2) Subsection (1)(a) applies even though-- 29
(a) the claim or land is mortgaged or charged to secure payment of 30
other amounts; or 31
s 405 284 s 405
Industrial Relations
(b) there is a lien on the claim or land. 1
(3) Subsection (1)(b) applies only to the extent that a law of the State may 2
validly apply to the distribution of assets in a winding-up. 3
(4) If a first charge exists under subsection (1)(a), the amount charged 4
includes-- 5
(a) all amounts awarded by a court as costs against an employer in 6
proceedings brought by or for an employee to recover the wages 7
mentioned in the subsection; and 8
(b) the amount of costs, charges and expenses reasonably incurred in 9
attempting to enforce an order or orders for payment of the 10
wages. 11
(5) The debts that are a first charge under subsection (1)(a) or are to be 12
paid in priority under subsection (1)(b)-- 13
(a) rank equally among themselves; and 14
(b) if necessary, abate in equal proportions among themselves. 15
(6) In this section-- 16
"wages" for work includes earnings for work. 17
5--Occupational superannuation 18
Division
about superannuation fund 19
Agreement
405.(1) This section applies if an industrial instrument requires an 20
employer to pay contributions to a specified superannuation fund. 21
(2) Despite the instrument, the required contributions may be paid to a 22
complying superannuation fund agreed to by the employer and employee. 23
(3) The agreement must be written and signed by the employer and 24
employee. 25
(4) A person must not coerce someone else to make an agreement 26
mentioned in subsection (3). 27
Maximum penalty for subsection (4)--40 penalty units. 28
s 406 285 s 407
Industrial Relations
occupational superannuation 1
Contributing
406.(1) An employer must contribute, for eligible employees, to the 2
approved superannuation fund at the level required by the relevant industrial 3
instrument. 4
Maximum penalty--40 penalty units. 5
(2) The offence is a continuing offence that may be charged in 1 or more 6
complaints for 1 or more periods. 7
(3) An employer who contributed-- 8
(a) to a complying superannuation fund at a level required by a 9
relevant industrial instrument; but 10
(b) to a fund that is not the approved superannuation fund; 11
does not commit an offence unless the employer has knowingly 12
contravened the instrument. 13
(4) If the commission makes an order under section 407(2), an employer 14
who fails to contribute in accordance with the order is taken to fail to make 15
the contribution under the relevant industrial instrument, whether or not the 16
order was directed to that employer. 17
(5) The court by which a defendant is found guilty of an offence against 18
subsection (1) may make, in relation to the defendant, an order that a 19
magistrate is authorised by section 408128 to make on an application under 20
that section, and that section applies and extends accordingly. 21
to order contribution to particular fund 22
Power
407.(1) This section applies if-- 23
(a) an industrial matter relates to an allegation that an employer has 24
been, or is, contributing to a complying superannuation fund for 25
employees at a level required by a relevant industrial instrument; 26
but 27
(b) the fund is not the approved superannuation fund. 28
(2) The commission, of its own initiative or on application by an 29
128 Section 408 (Recovery of unpaid superannuation contribution)
s 408 286 s 408
Industrial Relations
inspector, organisation or employee concerned, may-- 1
(a) decide which complying superannuation fund the employer 2
should have been, or should be, contributing to comply with the 3
relevant industrial instrument; and 4
(b) order the employer to contribute accordingly. 5
(3) If the commission considers it appropriate, the commission may 6
make its order to operate from the date when a particular employee became 7
eligible for payment of contribution to the fund decided by the commission. 8
(4) The commission may recognise all or any of the contribution made 9
by an employer to a complying superannuation fund up to and including the 10
date of the commission's decision as having met the requirements, or a part 11
of them, of a relevant industrial instrument, relating to employers' 12
contribution to the approved superannuation fund. 13
of unpaid superannuation contribution 14
Recovery
408.(1) An application may be made to a magistrate for an order for 15
payment of contributions to the approved superannuation fund payable for 16
an eligible employee that are unpaid. 17
(2) The application may be made by-- 18
(a) an employee who is an eligible employee on whose behalf an 19
employer is required to contribute to an approved superannuation 20
fund; or 21
(b) an employee organisation of which the employee is a member, 22
acting for the employee; or 23
(c) an inspector. 24
(3) The application must be made within 6 years after the amount 25
claimed became payable. 26
(4) On hearing the application, the magistrate must order the employer to 27
pay the employee-- 28
(a) the amount the magistrate finds to be payable and unpaid to the 29
employee within the 6 years before the date of the application; and 30
(b) an amount the magistrate considers appropriate, based on the 31
return that would have accrued in relation to the contribution had it 32
s 409 287 s 409
Industrial Relations
been properly paid to the fund. 1
(5) The magistrate may award costs to either party in an amount assessed 2
by the magistrate. 3
(6) The magistrate may only make an order about the payment of the 4
amount that the commission may make under section 278(9) or (10).129 5
(7) A person can not make an application under this section if an 6
application has been made under section 278 for the same matter. 7
HAPTER 12--INDUSTRIAL ORGANISATIONS 8
C
ART 1--PRELIMINARY 9
P
for ch 12 10
Definitions
409. In this chapter-- 11
"accounts" see section 555. 12
"amalgamation" means the carrying out, under part 15, of arrangements 13
for 2 or more organisations, associations or corporations, under 14
which-- 15
(a) an organisation is, or 2 or more organisations are, to be 16
deregistered; and 17
(b) members of the organisation or organisations to be deregistered 18
are to become members of another organisation, whether existing 19
or proposed. 20
"association" means an unincorporated body or entity formed or carried on 21
to protect and promote its members' interests. 22
"audit report" see section 558(1)(b). 23
"ballot records", for an election or ballot, means any ballot envelopes, 24
129 Section 278 (Power to recover unpaid wages and superannuation contribution
etc.)
s 409 288 s 409
Industrial Relations
papers or other records that have been prepared or used for the election 1
or ballot. 2
"branch" of an organisation means a constituent part of the organisation, 3
however called, that has a management committee or officers. 4
"casual vacancy" means a vacancy in an office because of the death, 5
removal or resignation from office of the office holder. 6
"committee meeting", for an organisation, means a meeting of its 7
management committee. 8
"corporation" see section 410. 9
"counterpart federal body" see section 411. 10
"defect" includes an error, irregularity, nullity and an omission. 11
"demarcation dispute undertaking" from an organisation or applicant for 12
registration means an undertaking from it to avoid demarcation 13
disputes that might otherwise arise from an overlap between its 14
eligibility rules and another organisation's eligibility rules. 15
"deregistered organisation" means a former organisation whose 16
registration has been cancelled. 17
"deregistration", for an organisation, means the cancellation of its 18
registration. 19
"election" means an election for an office in an organisation or branch. 20
"electoral commission" means the Electoral Commission of Queensland. 21
"electoral officer" means the electoral commissioner, the deputy electoral 22
commissioner or a member of the staff of the electoral commission. 23
"eligibility rules" of an organisation or applicant for registration means its 24
rules about eligibility for its membership. 25
"employee organisation" means an organisation of employees. 26
"employer organisation" means an organisation of employers. 27
"federal organisation" means an organisation under the Commonwealth 28
Act. 29
"file" a document means file it with the registrar. 30
"financial hardship payment", for an organisation, means a payment by 31
s 409 289 s 409
Industrial Relations
the organisation to relieve a member or the member's dependant from 1
severe financial hardship. 2
"general meeting" of an organisation or applicant for registration means a 3
general meeting of its members. 4
"irregularity" includes-- 5
(a) a contravention of an organisation's rules; and 6
(b) for an election or ballot, an act or omission by which the 7
following is, or is attempted to be, prevented-- 8
(i) the full and free recording of votes by all persons who may 9
record a vote and by no other persons; 10
(ii) a correct working out or declaration of the results of the 11
voting. 12
"management committee", for an organisation, branch or applicant for 13
registration, means the body of persons, however called, that manages 14
its affairs. 15
"members register", for an organisation, means the current register of its 16
members required to be kept under section 544. 17
"membership subscription", for an organisation, means a subscription, 18
due or other amount payable under its rules for membership or 19
membership renewal. 20
"model election rules" means the model election rules under section 454. 21
"office", for an organisation, branch or applicant for registration, see 22
section 412. 23
"officer" of an organisation, branch or applicant for registration means a 24
person who holds an office in the organisation or branch or in the 25
applicant association or corporation. 26
"officers register", for an organisation, means the current register of its 27
officers required to be kept under section 544. 28
"ordinary election" means an election held under rules under part 4. 29
"organisation" means-- 30
(a) a body registered under this chapter as an organisation; or 31
(b) an association of employers or employees, the continuity of 32
s 410 290 s 410
Industrial Relations
whose registration as an industrial organisation or union under an 1
Act is continued or preserved by this Act. 2
"postal ballot" means a ballot by which-- 3
(a) a ballot paper is sent by prepaid post to each person who may 4
vote in the ballot; and 5
(b) facilities are provided for returning the completed ballot paper by 6
post by each voter without cost to the voter. 7
"president" of an organisation, branch or applicant for registration 8
means-- 9
(a) its president; or 10
(b) its chief executive; or 11
(c) another officer, however called, who has the functions of its 12
president or chief executive. 13
"register", when used as a noun, means the register of industrial 14
organisations the registrar keeps under section 426(1). 15
"registration" means registration under this chapter as an organisation. 16
"required number" of members of an organisation means the number of 17
its members that is the lesser of 5% of the membership or 250. 18
"secretary", of an organisation, for the signing of a document to be filed 19
means-- 20
(a) the person who holds the office of secretary in the organisation; or 21
(b) if no-one holds the office of secretary of the organisation, the 22
person authorised by the organisation under its rules to sign 23
documents for the organisation. 24
"withdrawal" means the withdrawal, under part 15, of a constituent part 25
from an amalgamated organisation. 26
of "corporation" for ch 12 27
Meaning
410.(1) In this chapter, "corporation" means-- 28
s 411 291 s 411
Industrial Relations
(a) a corporation under the Corporations Law, section 57A;130 or 1
(b) an incorporated association under the Associations Incorporation 2
Act 1981; or 3
(c) a body incorporated under a law of the State, another State or the 4
Commonwealth, other than-- 5
(i) a federal organisation; or 6
(ii) an organisation registered under a law of another State about 7
the registration of industrial organisations or unions. 8
(2) However, an organisation incorporated under section 423 is not a 9
corporation.131 10
of "counterpart federal body" for ch 12 11
Meaning
411.(1) In this chapter, a federal organisation or a branch or part of a 12
federal organisation ("federal body") is a "counterpart federal body" of 13
an organisation ("State body") if-- 14
(a) a substantial number of members of the State body are-- 15
(i) members or eligible to be members of the federal body; or 16
(ii) engaged in the same work, in aspects of the same work or in 17
similar work as members of the federal body; or 18
(iii) employed in the same or similar work by employers 19
engaged in the same industry as members of the federal 20
body; or 21
(iv) engaged in work or in industries for which there is a 22
community of interest between the federal body and the State 23
body; or 24
(b) there is an agreement in force under the Commonwealth Act, 25
section 202,132 between the federal body and the State body. 26
130 Corporations Law, section 57A (Meaning of "corporation")
131 Section 423 (Incorporation on registration if not already incorporated)
132 Section 202 (Agreement between organisation and State union) of the
Commonwealth Act
s 412 292 s 412
Industrial Relations
(2) If subsection (1)(a) or (b) applies to more than 1 State body for the 1
same federal body, the federal body is a counterpart federal body of each of 2
the State bodies. 3
of "office" for ch 12 4
Meaning
412. In this chapter, "office", for an organisation, branch or applicant for 5
registration ("industrial association"), means the following-- 6
(a) the office of president, vice-president, secretary or assistant 7
secretary of the industrial association; 8
(b) the office of a member of the management committee of the 9
industrial association; 10
(c) the office of a voting member of any other collective body that 11
has power to do any of the following-- 12
(i) manage the affairs of the industrial association; 13
(ii) decide the policy of the industrial association; 14
(iii) make, amend or repeal the rules of the industrial association; 15
(iv) enforce the rules of the industrial association; 16
(d) an office for which the holder may under the rules of the 17
industrial association manage the association's affairs and enforce 18
its rules, other than a holder only participating under directions of 19
a collective body or other person to implement-- 20
(i) the association's existing policy; or 21
(ii) decisions concerning the association; 22
(e) an office for which the holder may under the industrial 23
association's rules decide the association's policy and make, 24
amend or repeal its rules; 25
(f) the office of a person holding, whether as trustee or otherwise, the 26
property of the industrial association or property the association 27
has a beneficial interest in. 28
s 413 293 s 415
Industrial Relations
PART 2--REGISTRATION 1
Division 1--Registration applications 2
is to commission 3
Application
413. A registration application may only be made to the commission. 4
may apply 5
Who
414.(1) An association may apply for registration as an employee or 6
employer organisation. 7
(2) A corporation may only apply for registration as an employer 8
organisation. 9
requirements for applications 10
General
415.(1) A registration application must be-- 11
(a) signed by the applicant's president and secretary; and 12
(b) accompanied by the following-- 13
(i) the proposed address under section 425(1) of the applicant's 14
proposed registered office; 15
(ii) 2 copies of the rules the applicant proposes to have as an 16
organisation; 17
(iii) a copy of the register that will, on its registration, be the 18
applicant's officers register; 19
(iv) a list of any trustees of the applicant; 20
(v) the appropriate fee under the rules; and 21
(c) filed. 22
(2) Notice of the application must be published by the applicant in the 23
way prescribed under a regulation. 24
s 416 294 s 417
Industrial Relations
requirements for employee organisation application 1
Additional
416. If the application is for registration as an employee organisation, it 2
must be accompanied by the following-- 3
(a) a copy of a resolution in favour of the applicant's registration 4
passed under the applicant's rules-- 5
(i) by a majority of its members present at a general meeting; or 6
(ii) in another way allowed under the applicant's rules; 7
(b) a list stating the applicant's members on the day the resolution 8
was made; 9
(c) a list stating the callings of its members or callings to which its 10
eligibility rules relate; 11
(d) a list stating each locality in which its members exercise their 12
callings. 13
requirements for employer organisation applications 14
Additional
417.(1) If the application is for registration as an employer organisation, 15
it must be accompanied by the following-- 16
(a) a list stating the name of, and the place or places where business 17
is carried on by, each employer member of the applicant; 18
(b) if the applicant has more than 1 member, a copy of a resolution in 19
favour of registration of the applicant passed under the applicant's 20
rules-- 21
(i) by a majority of the employer members; or 22
(ii) in another way allowed under the applicant's rules; 23
(c) a list stating the callings in which employees are employed by the 24
employer members; 25
(d) a statement of particulars of-- 26
(i) the control of the applicant's property; and 27
(ii) investment of its funds, as distinct from the property and 28
funds of the members of the applicant. 29
(2) In this section-- 30
s 418 295 s 419
Industrial Relations
"member" includes shareholder. 1
"rules" includes constitution and memorandum and articles of association. 2
2--Hearing of registration applications 3
Division
to object 4
Right
418.(1) A person may object to a registration application if the person-- 5
(a) has an appropriate interest in the matter; and 6
(b) gives notice to the commission in the time and way prescribed 7
under a regulation. 8
(2) The commission must hear the objection in the way prescribed under 9
a regulation. 10
criteria for all applications 11
Registration
419.(1) The commission may grant the application only if satisfied of the 12
following-- 13
(a) the applicant exists to further or protect its members' interests; 14
(b) the applicant would, if registered, comply with the obligations of 15
an organisation under this chapter and would not contravene 16
chapter 4;133 17
(c) the rules the applicant proposes to have as an organisation-- 18
(i) comply with parts 3 and 4;134 and 19
(ii) are not contrary to this Act or another law; 20
(d) the applicant's name-- 21
(i) is not the same as an organisation's name or so similar to an 22
organisation's name as to be likely to cause confusion; and 23
(ii) will, if the applicant is registered, comply with 24
133 Chapter 4 (Freedom of association)
134 Parts 3 (General contents of rules) and 4 (Election rules)
s 420 296 s 420
Industrial Relations
section 424;135 1
(e) registration of the applicant would not be inconsistent with the 2
objects of this Act. 3
(2) For subsection (1)(e), the commission must consider whether recent 4
conduct by the applicant or its members would have been an industrial 5
conduct ground under part 16136 if the applicant had been registered when 6
the conduct happened. 7
criteria for registration as employee organisation 8
Additional
420.(1) If the application is for registration as an employee organisation, 9
the commission must also be satisfied of the following-- 10
(a) the applicant is free from control by, or improper influence from, 11
an employer, an employer association or an employer 12
organisation; 13
(b) either-- 14
(i) there is no organisation to which the applicant's members 15
might belong; or 16
(ii) there is no organisation to which the members could 17
conveniently belong that would effectively represent them in 18
a way consistent with the objects of this Act; or 19
(iii) the applicant has given the commission an appropriate 20
demarcation dispute undertaking; 21
(c) the applicant has at least 20 members who are employees; 22
(d) the applicant's members who are not employees are-- 23
(i) officers of the applicant; or 24
(ii) independent contractors who, if they were employees 25
performing work of the kind that they usually perform as 26
independent contractors, would be employees eligible for 27
membership of the applicant. 28
135 Section 424 (Registered name of organisation that is not a corporation)
136 Part 16 (Deregistration)
s 421 297 s 422
Industrial Relations
(2) Despite subsection (1)(c) or (d), the commission may grant the 1
application if satisfied special circumstances justify the applicant's 2
registration. 3
criteria for registration as employer organisation 4
Additional
421.(1) If the application is for registration as an employer organisation, 5
the commission must also be satisfied of the following-- 6
(a) the applicant has employer members; 7
(b) either-- 8
(i) there is no organisation to which the applicant's members 9
might belong; or 10
(ii) there is no organisation to which the members could 11
conveniently belong that would effectively represent them in 12
a way consistent with the objects of this Act; 13
(c) the applicant effectively represents its employer members in a 14
way that is consistent with the objects of this Act; 15
(d) each member of the applicant who is not an employer-- 16
(i) is an officer of the applicant; or 17
(ii) was an employer on becoming a member; or 18
(iii) carries on a business; 19
(e) the applicant's members have, in total, employed a monthly 20
average of at least 20 employees in the 6 months before the 21
application was made. 22
(2) Despite subsection (1)(e), the commission may grant the application 23
if satisfied special circumstances justify the applicant's registration. 24
Division 3--Grant of application 25
of application 26
Grant
422.(1) If the commission grants a registration application, the applicant 27
immediately becomes an organisation. 28
s 423 298 s 424
Industrial Relations
(2) The rules for which the application was granted take effect as the rules 1
of the organisation. 2
(3) The registrar must, as soon as practicable-- 3
(a) enter the organisation's name and the day it became an 4
organisation in the register; and 5
(b) give the organisation a certificate of registration in the approved 6
form; and 7
(c) register the applicant's rules. 8
on registration if not already incorporated 9
Incorporation
423. If an organisation was not a corporation immediately before it 10
became an organisation, on registration it-- 11
(a) is incorporated under its registered name; and 12
(b) has perpetual succession; and 13
(c) may purchase, take on lease or hire, hold, sell, lease, let, 14
mortgage, exchange, accept or dispose of by way of gift, own, 15
possess, and otherwise deal with property; and 16
(d) may have a common seal; and 17
(e) may sue and be sued. 18
Division 4--Registered name and office 19
name of organisation that is not a corporation 20
Registered
424.(1) If an organisation is not a corporation, its registered name must 21
include the words-- 22
(a) if it is an employee organisation--`industrial organisation of 23
employees' or `industrial union of employees'; or 24
(b) if it is an employer organisation--`industrial organisation of 25
employers' or `industrial union of employers'. 26
(2) The name must state the locality in which most of its members live or 27
carry on their business or calling. 28
s 425 299 s 427
Industrial Relations
office 1
Registered
425.(1) An organisation must have a registered office in the State to 2
which all notices to it may be given. 3
Maximum penalty--40 penalty units. 4
(2) The organisation must give notice to the registrar of a change in the 5
address of its registered office within 7 days after the change happens. 6
Maximum penalty--40 penalty units. 7
5--Miscellaneous 8
Division
functions for register and rules 9
Registrar's
426.(1) The registrar must keep-- 10
(a) a register of organisations; and 11
(b) a copy of each organisation's rules. 12
(2) The rules are open to inspection by a person paying the fee stated in 13
the rules of court. 14
of callings 15
Change
427.(1) On an application by an organisation made in the way prescribed 16
under a regulation, the commission may, by order, change its list of 17
callings. 18
(2) If the list of callings is changed under subsection (1), the 19
organisation's list of callings is taken to be the changed list. 20
(3) In this section-- 21
"list of callings" means the list stating the callings that accompanied the 22
organisation's registration application. 23
s 428 300 s 429
Industrial Relations
PART 3--GENERAL CONTENTS OF RULES 1
Division 1--Requirement to have rules 2
must have complying rules 3
Organisation
428.(1) An organisation must have rules about the matters required of it 4
under this part and part 4.137 5
(2) The organisation must give a copy of its rules to a person who asks 6
for a copy and pays the amount prescribed under a regulation. 7
2--General requirements for contents 8
Division
for all organisations 9
Requirements
429.(1) An organisation's rules must state the following-- 10
(a) its objectives; 11
(b) its eligibility rules; 12
(c) how and when-- 13
(i) a person may become a member; or 14
(ii) a person may resign from membership; or 15
(ii) a person's membership ends, other than by resignation; 16
(d) the functions and powers of its committees, branch committees, 17
office holders and branch office holders; 18
(e) how meetings of its committees, branches and members may be 19
called; 20
(f) how its committees are controlled by its members; 21
(g) how committees of its branches are controlled by members of the 22
branch; 23
137 Part 4 (Election rules)
s 430 301 s 430
Industrial Relations
(h) how documents may be signed for the organisation; 1
(i) that notice must be given by a stated authorised office holder to 2
the commission of the existence or likelihood of industrial 3
disputes, in the way required under section 229;138 4
(j) how its property is controlled and its funds are invested; 5
(k) any conditions for spending its funds; 6
(l) that, unless exempted under part 13, its accounts must be audited 7
yearly or in another more frequent period; 8
(m) that, unless exempted under part 13, it must keep a members 9
register, arranged according to branches if it has branches; 10
(n) how the rules may be amended; 11
(o) that membership applicants must be informed in writing of-- 12
(i) a member's financial obligations; and 13
(ii) how and when a member may resign from membership. 14
(2) In this section-- 15
"committee" of an organisation or branch means-- 16
(a) its management committee; or 17
(b) any other collective body of its members or officers, however 18
called, that has power to do any of the following-- 19
(i) manage its affairs; 20
(ii) decide its policy; 21
(iii) make, amend or repeal its rules; 22
(iv) enforce its rules. 23
requirements for organisation that is not a corporation 24
Additional
430. If an organisation is not a corporation, its rules must also state-- 25
(a) that an elected officer may be removed from office only on the 26
ground that the officer has ceased to be eligible to hold the office 27
138 Section 229 (Notice of industrial dispute)
s 431 302 s 431
Industrial Relations
or has been found guilty under the rules of-- 1
(i) misappropriation of the organisation's property; or 2
(ii) a substantial contravention of the rules; or 3
(iii) gross misbehaviour or gross neglect of duty in the office; 4
and 5
(b) the procedure for removing an elected officer. 6
must give conditions for loans, grants and donations 7
Rules
431.(1) An organisation's rules must state that the organisation or a 8
branch of the organisation must not make donations, grants or loans 9
totalling more than $1 000 (the "payment") to the same person unless the 10
management committee of the organisation or branch-- 11
(a) has approved the payment; and 12
(b) is satisfied the payment is not otherwise prohibited under the rules 13
of the organisation; and 14
(c) if the payment is a loan, it is made on satisfactory terms. 15
(2) Despite subsection (1), the rules may allow a financial hardship 16
payment of not more than $3 000 if it is made on condition that, if the 17
management committee at its next meeting does not approve the payment, it 18
must be repaid as decided by the committee. 19
(3) In deciding whether to approve the payment, the management 20
committee must consider whether it was made under the rules and on 21
satisfactory terms. 22
(4) For this section, a loan is made on satisfactory terms if the 23
management committee is satisfied-- 24
(a) the security to be provided for the loan is sufficient; and 25
(b) the proposed arrangements to repay the loan are satisfactory. 26
s 432 303 s 434
Industrial Relations
Division 3--Permitted contents 1
contents--general 2
Permitted
432. An organisation's rules may-- 3
(a) state the industry for which the organisation is formed; and 4
(b) make another provision that does not contravene this Act. 5
casual vacancies 6
Filling
433.(1) The rules may provide for filling a casual vacancy in an office. 7
(2) However, the rules must not allow the filling of a casual vacancy 8
other than by ordinary election, if the unexpired part of the term of the office 9
is longer than the greater of-- 10
(a) 1 year; or 11
(b) three-quarters of the term of office. 12
(3) If a person fills a casual vacancy in an office under this section, the 13
person is taken to have been elected to the office. 14
(4) In this section-- 15
"term" of an office means the period for which the person last elected to the 16
office by an ordinary election, other than by an ordinary election to fill 17
a casual vacancy, may hold the office without being re-elected. 18
benefit fund 19
Mortality
434.(1) An organisation's rules may provide for an amount to be paid on 20
the death of a member of the organisation to an eligible nominee nominated 21
by the member. 22
(2) Despite the rules, the member may, by giving notice to the 23
organisation, cancel the nomination or change the nominee to another 24
eligible nominee. 25
(3) In this section-- 26
"eligible nominee" of a member means-- 27
s 435 304 s 436
Industrial Relations
(a) any person who is not an officer or employee of the organisation; 1
or 2
(b) a spouse of the member; or 3
(c) a child, grandchild, grandparent, nephew, niece, parent or sibling 4
of the member. 5
Division 4--Restrictions on contents 6
restrictions 7
General
435.(1) An organisation's rules must not-- 8
(a) contravene this Act, another law or an industrial instrument; or 9
(b) prevent members of the organisation from-- 10
(i) complying with this Act or another law, an industrial 11
instrument or decision; or 12
(ii) entering into a written agreement under an industrial 13
instrument or decision; or 14
(c) impose on its members, or membership applicants, conditions, 15
obligations or restrictions that are oppressive, unreasonable or 16
unjust. 17
(2) An eligibility rule does not contravene subsection (1)(c) only because 18
it requires reasonable minimum standards for the conduct of the businesses 19
or callings of its members or membership applicants. 20
office term for organisation that is not a corporation 21
Maximum
436.(1) If an organisation is not a corporation, its rules must not allow an 22
officer to hold office for more than 4 years (the "maximum term") without 23
re-election. 24
(2) However, the rules may extend the maximum term for a period of 25
not more than 1 year to synchronise elections for other offices in the 26
organisation. 27
s 437 305 s 439
Industrial Relations
PART 4--ELECTION RULES 1
Division 1--Preliminary 2
does not apply to corporations 3
Part
437. This part does not apply to a corporation. 4
of "direct voting system" for pt 4 5
Meaning
438.(1) In this part, a "direct voting system", for an office in an 6
organisation, means an electoral system in which, subject to provisions in 7
the organisation's rules about voting enrolment-- 8
(a) all eligible members of an organisation may vote for the office; or 9
(b) if the office is for a branch of the organisation, all eligible 10
members included in the constituent part may vote. 11
(2) In this section-- 12
"eligible member" means a member mentioned in section 445(c).139 13
of "collegiate electoral system" for pt 4 14
Meaning
439. In this part, a "collegiate electoral system" means a system for the 15
election of an organisation's officers under which-- 16
(a) persons are elected to a number of offices by a direct voting 17
system; and 18
(b) at a subsequent stage or stages, persons are elected to offices by 19
an electoral college consisting of the persons elected at the last 20
preceding stage.140 21
139 Section 445 (Required contents--ballots)
140 There are restrictions on who may be elected at the subsequent stage or stages.
See section 452 (Restrictions on persons who may be elected by electoral
college).
s 440 306 s 444
Industrial Relations
2--General requirements 1
Division
requirement of transparency 2
General
440. An organisation's rules about elections must, as far as practicable, 3
ensure-- 4
(a) the processes under which its elections are conducted are 5
transparent; and 6
(b) no irregularities can happen in an election for the organisation or a 7
branch of the organisation. 8
must provide for elections 9
Rules
441. An organisation's rules must provide for elections for all elected 10
offices in the organisation or a branch of the organisation. 11
voting or collegiate electoral system must be used 12
Direct
442. An organisation's rules must provide for the election of its elected 13
officers by a direct voting system or a collegiate electoral system. 14
Division 3--Direct voting systems 15
1--Preliminary 16
Subdivision
of div 3 17
Application
443. This division applies if an organisation's rules provide for the 18
election of its elected officers by a direct voting system. 19
Subdivision 2--Requirements for direct voting systems 20
requirements for direct voting system 21
General
444. The organisation's rules must state the following-- 22
s 445 307 s 445
Industrial Relations
(a) who may nominate as a candidate in the election; 1
(b) how a person may nominate and become a candidate; 2
(c) the times for nominations to open and to close; 3
(d) that nominations must be called in a stated way that is reasonably 4
likely to notify the organisation's members-- 5
(i) that nominations have been called; and 6
(ii) of how to nominate; 7
(e) that if a nomination for an office is rejected as defective, other 8
than because the person is not qualified to hold the office or 9
because the nomination was made after the closing time-- 10
(i) the nominee must be notified of the defect; and 11
(ii) if practicable, the nominee must be given an opportunity to 12
remedy the defect; 13
(f) that a candidate must be declared elected if the number of 14
candidates for election is not more than the number of officers to 15
be elected; 16
(g) that if at the closing time there are more candidates than the 17
number of officers to be elected a ballot must be conducted to 18
decide the result of the election. 19
contents--ballots 20
Required
445. The organisation's rules must also state the following-- 21
(a) that a ballot to decide the result of an election must be a secret 22
postal ballot or another type of secret ballot approved by the 23
registrar under subdivision 3; 24
(b) how the ballot is to be conducted; 25
(c) that a person (an "eligible member") may vote in the ballot only 26
if the person was a financial member of the organisation for a 27
stated period that-- 28
(i) starts not before 60 days before the opening time for 29
nominations and not after 30 days before the opening time; 30
and 31
s 446 308 s 447
Industrial Relations
(ii) ends at the closing time for nominations; 1
(d) that the person conducting the ballot must, when nominations for 2
the election close, prepare a list or roll of the eligible members; 3
(e) the appointment, conduct and functions of scrutineers to represent 4
the candidates in the ballot; 5
(f) that an eligible member may cast an absentee vote and how the 6
member may cast the vote; 7
(g) the method of voting and deciding the result of the ballot, by 8
either a first-past-the-post system or a preferential system; 9
(h) that a candidate or a member of the organisation has the right, up 10
to 30 days after the declaration of the result of the election, free of 11
charge-- 12
(i) to inspect the list or roll of persons who may vote in the 13
ballot at the organisation's registered office when it is open 14
for business; and 15
(ii) to be given a copy of the whole or a stated part of the list or 16
roll. 17
voting permitted 18
Compulsory
446. The organisation's rules may require compulsory voting in a ballot 19
required for an election. 20
3--Alternative types of secret ballot 21
Subdivision
application 22
Approval
447.(1) An organisation may apply to the registrar for approval for 23
ballots to decide the result of its elections for its elected officers not to be 24
postal ballots. 25
(2) The application must include particulars of proposed amendments to 26
the organisation's rules that provide for secret ballots that are not postal 27
ballots. 28
s 448 309 s 450
Industrial Relations
of application 1
Consideration
448. The registrar may grant the approval only if satisfied-- 2
(a) the proposed amendments-- 3
(i) are not contrary to this Act or to law; and 4
(ii) have been made under the organisation's rules; and 5
(b) a ballot under the proposed amendments-- 6
(i) is likely to have a higher participation by the organisation's 7
members than a postal ballot; and 8
(ii) will give members who are eligible to vote an adequate 9
opportunity of voting without intimidation. 10
of approval 11
Grant
449. If the registrar grants the approval, the proposed amendments take 12
effect from-- 13
(a) the day the registrar gives the organisation notice of the approval; 14
or 15
(b) a later day stated in the notice. 16
of approval 17
Cancellation
450. The registrar may cancel the approval only if-- 18
(a) the organisation applies for the cancellation; or 19
(b) the registrar is no longer satisfied a ballot under the organisation's 20
rules-- 21
(i) is likely to have a higher participation by the organisation's 22
members than a postal ballot; and 23
(ii) will give members who are eligible to vote an adequate 24
opportunity of voting without intimidation. 25
s 451 310 s 453
Industrial Relations
4--Collegiate electoral systems 1
Division
1--Preliminary 2
Subdivision
of div 4 3
Application
451. This division applies if an organisation's rules provide for the 4
election of its elected officers by a collegiate electoral system. 5
2--Requirements for collegiate electoral systems 6
Subdivision
on persons who may be elected by electoral college 7
Restriction
452. At least 80% of the persons elected by an electoral college must be 8
elected at the stage in the collegiate electoral system that immediately 9
preceded the stage for which the electoral college is formed. 10
for second or subsequent stage 11
Requirements
453. The organisation's rules must state the following for an election at 12
the second or subsequent stage of a collegiate electoral system-- 13
(a) who may nominate as a candidate in the election; 14
(b) how a person may nominate and become a candidate; 15
(c) that a candidate must be declared elected if the number of 16
candidates for election is not more than the number of officers to 17
be elected; 18
(d) that if there are more candidates than the number of officers to be 19
elected, a secret ballot must be conducted to decide the result of 20
the election; 21
(e) that if a ballot must be conducted-- 22
(i) how the ballot must be conducted; and 23
(ii) the methods of voting and deciding the result of the ballot; 24
and 25
(iii) that a person who may vote in the ballot (a "voter") may 26
s 454 311 s 458
Industrial Relations
vote by an absentee or proxy vote; and 1
(iv) how a voter may vote by an absentee or proxy vote; and 2
(v) that scrutineers may be appointed for candidates; and 3
(vi) the functions of scrutineers. 4
5--Model election rules 5
Division
election rules 6
Model
454. A regulation may make model election rules under this division for 7
organisations. 8
election rules may be adopted 9
Model
455. An organisation may, by a resolution under its rules, adopt all or 10
part of the model election rules, with or without change. 11
without change 12
Adoption
456.(1) If an organisation resolves to adopt all the model election rules 13
without change, its secretary may give the registrar notice of the resolution. 14
(2) The registrar must register the model election rules as an amendment 15
of the organisation's rules. 16
(3) The amendment takes effect when it is registered. 17
of adoption without change 18
Effect
457. If an organisation adopts the model election rules without change, its 19
rules are taken to comply with this part. 20
rules apply if election rules do not comply with pt 4 21
Model
458. The model election rules are taken to be an organisation's election 22
rules if its election rules do not comply with this part within 1 year after this 23
section commences. 24
s 459 312 s 461
Industrial Relations
ART 5--VALIDITY AND COMPLIANCE WITH 1
P
RULES 2
of court 3
Powers
459.(1) The court may, on application-- 4
(a) decide whether an organisation's rules comply with 5
section 435;141 or 6
(b) direct a person obliged to perform or observe an organisation's 7
rules to perform or observe the rules. 8
(2) However, a direction must not be made if it invalidates-- 9
(a) an election or purported election; or 10
(b) a step for an election or purported election. 11
(3) In deciding the application, the court may declare-- 12
(a) the whole, or a part of, the rules comply with or contravene 13
section 435; or 14
(b) the rules contravene section 435 in a stated way. 15
may apply 16
Who
460. An application may be made only by a member of the organisation 17
or another person prescribed under a regulation. 18
help for application 19
Financial
461.(1) A member of an organisation may apply to the Minister for 20
financial help if the member-- 21
(a) has made, or proposes to make, an application under this part; and 22
(b) applies within 3 months after the application has been decided. 23
(2) The Minister may direct that financial help from the State be given to 24
the member for the cost of the application if satisfied-- 25
141 Section 435 (General restrictions)
s 462 313 s 465
Industrial Relations
(a) there are, or were, reasonable grounds for making the application; 1
and 2
(b) the application is proposed to be, or was, made in good faith. 3
(3) The registrar must decide the amount of the financial help. 4
orders 5
Interim
462.(1) The court may make an interim order it considers appropriate. 6
7
Example--
8
If the application is for a direction, the court may make an order to help resolve
9
the matter within the organisation.
(2) An interim order ends-- 10
(a) when the proceedings end; or 11
(b) at an earlier time stated in the order; or 12
(c) if it is discharged by the court. 13
application 14
Hearing
463.(1) The court may adjourn the hearing for a stated period on 15
conditions it considers appropriate to give the organisation an opportunity to 16
amend its rules. 17
(2) The court may refuse to hear an application for directions until it is 18
satisfied the applicant has taken all reasonable steps to resolve the matter 19
within the organisation. 20
of declaration 21
Effect
464. If the court declares the whole or a part of a rule contravenes 22
section 435, the rule or the part of the rule, is taken to be void from the 23
making of the declaration. 24
must be complied with 25
Direction
465. If the court directs a person to perform or observe an organisation's 26
rules, the person must comply with the direction unless the person has a 27
s 466 314 s 467
Industrial Relations
reasonable excuse for not complying with the direction. 1
Maximum penalty--40 penalty units. 2
PART 6--AMENDMENT OF RULES 3
1--Amendments by commission or registrar 4
Division
of demarcation dispute undertaking 5
Breach
466.(1) This section applies if an organisation has given a demarcation 6
dispute undertaking to the commission and the organisation has breached 7
the undertaking. 8
(2) The commission may amend the organisation's rules in a way it 9
considers necessary to remove an overlap between the organisation's 10
eligibility rules and another organisation's eligibility rules. 11
registrar may amend rules 12
When
467. The registrar may amend an organisation's rules as follows-- 13
(a) on the registrar's own initiative, if the registrar considers the rules 14
do not make a provision required by section 435;142 15
(b) if, under section 450, the registrar has cancelled an approval under 16
section 449 and the amendment is to provide that if a ballot is 17
necessary for an election for the organisation it must be a secret 18
postal ballot; 19
(c) if section 458 applies, so that the organisation's election rules are 20
the model election rules; 21
(d) to omit a provision declared, under section 459(3)(a), to be in 22
contravention of section 435; 23
(e) to amend a provision declared, under section 459(3)(b), to 24
142 See however section 654 (Hearing to be given before decision).
s 468 315 s 469
Industrial Relations
contravene section 435 in a stated way so that the provision no 1
longer contravenes section 435 in the stated way; 2
(f) to give effect to an order under section 508(2)(b) or 536(e); 3
(g) to correct a formal or clerical error.143 4
to cure noncompliance if rule declared void 5
Amendment
468.(1) This section applies if-- 6
(a) the court declares the whole or a part of a rule of an organisation 7
contravenes section 435 or contravenes section 435 in a stated 8
way; and 9
(b) the organisation's rules have not been amended so as to comply 10
with section 435 within 3 months after the declaration is made. 11
(2) The appropriate tribunal may amend the rules to comply with 12
section 435 for the matters that gave rise to the declaration. 13
(3) In this section-- 14
"appropriate tribunal" means-- 15
(a) for an organisation's eligibility rules, the commission; or 16
(b) for other rules, the registrar. 17
amendment must be made 18
How
469.(1) An amendment under this division may only be made by an 19
order, direction or written decision ("instrument"). 20
(2) The amendment takes effect from the day of the instrument. 21
(3) The registrar must give the organisation a copy of the instrument as 22
soon as practicable after the decision is made. 23
143 Sections 435 (General restrictions), 449 (Grant of approval), 450 (Cancellation
of approval), 458 (Model rules apply if election rules do not comply with pt 4),
459 (Powers of court), 508 (Orders if irregularity found) and 536 (Deciding
application)
s 470 316 s 473
Industrial Relations
Division 2--Amendments by organisation 1
1--Name or eligibility rule amendments 2
Subdivision
of sdiv 1 3
Application
470.(1) This subdivision applies if an organisation proposes to amend its 4
name or eligibility rules. 5
(2) This subdivision does not apply if the amendment is made under 6
section 467 or 468 or proposed to be made for an amalgamation or 7
withdrawal. 8
(3) In this section-- 9
"amend" includes replace. 10
for amendment 11
Requirements
471. The proposed amendment may be made only if it has been-- 12
(a) proposed under the organisation's rules; and 13
(b) approved under this subdivision. 14
to change `union' to `organisation' in name 15
Approval
472. If an organisation's name contains the word `union', the registrar 16
may, by order, approve the replacement of the word with `organisation' or 17
the words `industrial organisation'. 18
for other name amendment 19
Approval
473.(1) This section applies to a name amendment other than an 20
amendment mentioned in section 472. 21
(2) The commission may, by order, approve the name amendment only 22
if satisfied the amended name-- 23
(a) has been proposed under the organisation's rules; and 24
(b) is not-- 25
s 474 317 s 474
Industrial Relations
(i) the same as another organisation's name; or 1
(ii) so similar to another organisation's name as to be likely to 2
cause confusion. 3
(3) Approval may be given wholly or in part. 4
for eligibility rule amendment 5
Approval
474.(1) The commission may, by order, approve an eligibility rule 6
amendment only if satisfied-- 7
(a) the amendment has been proposed under the organisation's rules; 8
and 9
(b) there is no organisation to which its members could conveniently 10
belong that would effectively represent them in a way consistent 11
with the objects of this Act. 12
(2) Despite subsection (1)(b), the commission may approve the 13
amendment if-- 14
(a) the organisation is an employee organisation; and 15
(b) it accepts an appropriate demarcation dispute undertaking from 16
the organisation. 17
(3) The commission may refuse to approve an eligibility rule amendment 18
if satisfied-- 19
(a) the amendment-- 20
(i) would contravene an agreement or understanding to which 21
the organisation is a party; and 22
(ii) deals with the organisation's right to represent; or 23
(b) the amendment-- 24
(i) would change the effect of a full bench order under 25
section 279144 about the organisation's right to represent; 26
and 27
(ii) would give rise to a serious risk of a demarcation dispute 28
144 Section 279 (Orders about representation rights of employee organisations)
s 475 318 s 476
Industrial Relations
that would prevent or restrict the performance of work in an 1
industry, or harm an employer's business. 2
(4) Subsection (3) does not limit the grounds on which approval may be 3
refused. 4
(5) Approval may be given wholly or in part. 5
(6) In this section-- 6
"right to represent" of an organisation means a right of the organisation to 7
represent the industrial interests of a particular class or group of 8
persons. 9
amendment takes effect 10
When
475. If a name amendment or eligibility rule amendment is approved, the 11
amendment takes effect on the day of the order or a later stated day. 12
must record amendment 13
Registrar
476. As soon as practicable after a name amendment or eligibility rule 14
amendment takes effect the registrar must-- 15
(a) for a name amendment-- 16
(i) enter the amended name in the register; and 17
(ii) give the organisation whose name was amended a 18
replacement certificate of registration in the approved form; 19
and 20
(b) for an eligibility rule amendment, enter particulars of the 21
amendment in the register. 22
s 477 319 s 479
Industrial Relations
Subdivision 2--Other rule amendments 1
of sdiv 2 2
Application
477. This subdivision applies if an organisation proposes to amend its 3
rules, other than by amending its name or eligibility rules, or by, under 4
section 456,145 adopting the model election rules without change. 5
amendment may be made 6
When
478.(1) The proposed amendment may be made only if the registrar has 7
approved it. 8
(2) The registrar may approve a proposed amendment only if satisfied 9
it-- 10
(a) does not contravene section 435146 or another law; and 11
(b) has been proposed under the organisation's rules. 12
amendment takes effect 13
When
479.(1) If the registrar approves the proposed amendment, the registrar 14
must register the amendment as soon as practicable. 15
(2) The amendment takes effect when it is registered. 16
145 Section 456 (Adoption without change)
146 Section 435 (General restrictions)
s 480 320 s 483
Industrial Relations
PART 7--CONDUCT OF ELECTIONS 1
Division 1--Preliminary 2
does not apply to corporations 3
Part
480. This part does not apply to a corporation. 4
2--Preparatory steps 5
Division
or branch must file prescribed election information 6
Organisation
481.(1) If an organisation or a branch of an organisation proposes to 7
conduct an election, the organisation or branch must file the information 8
prescribed under a regulation for the election in the registry. 9
(2) The information must be filed before the day prescribed under a 10
regulation or a later day the registrar allows. 11
must arrange for elections 12
Registrar
482. The registrar must arrange for an election to be conducted by the 13
electoral commission if-- 14
(a) the information prescribed under a regulation is filed; and 15
(b) satisfied the election is required to be held under the rules of the 16
relevant organisation or branch. 17
Division 3--Conduct of elections 18
commission to conduct elections 19
Electoral
483. An election must only be conducted by the electoral commission.147 20
147 See however part 13 (Exemptions), division 3 (Exemptions from requirement that
electoral commission conduct election).
s 484 321 s 488
Industrial Relations
rules generally to be complied with 1
Organisation's
484. Subject to section 485, the rules of the organisation or branch for 2
which an election or a step in an election is being conducted must be 3
complied with. 4
or directions by electoral officer 5
Action
485.(1) The electoral officer conducting an election or a step in an election 6
may take action, and give directions, the officer considers necessary-- 7
(a) to ensure no irregularities happen in the election; or 8
(b) to remedy a procedural defect that appears to the electoral officer 9
to exist in the rules. 10
(2) The election or step is not invalid only because the rules of the 11
organisation or branch are contravened by the action or direction. 12
electoral officer 13
Substitute
486. The electoral commissioner must arrange for another electoral 14
officer to complete an election, or a step in an election, if the electoral officer 15
conducting the election or taking the step-- 16
(a) dies or can not complete the election or take the step; or 17
(b) ceases to be qualified to conduct the election or take the step. 18
of candidate 19
Death
487.(1) An election must be discontinued and a new election held if-- 20
(a) 2 or more candidates are nominated for the election; and 21
(b) 1 of the candidates dies before the close of the ballot. 22
(2) Subsection (1) applies despite anything in the rules of an organisation 23
or branch. 24
result report 25
Election
488.(1) The electoral commission must, within 14 days after the 26
s 489 322 s 493
Industrial Relations
declaration of the result of an election, give the registrar a written election 1
result report for the election stating the particulars prescribed under a 2
regulation. 3
(2) A contravention of this section does not invalidate the election. 4
costs to be paid by State 5
Election
489. The costs of an election conducted by the electoral commission 6
under this part are payable by the State. 7
records must be preserved 8
Ballot
490.(1) This section applies despite the rules of an organisation or 9
branch. 10
(2) The electoral commission must do everything necessary to ensure all 11
ballot records for an election are kept by it for 1 year after the election. 12
4--Offences about conduct of elections 13
Division
organisation's resources for election purposes 14
Using
491. An organisation must not use, or permit its employees or agents, 15
members or officers to use, the organisation's property or resources to help 16
a candidate for an election against another candidate for the election. 17
Maximum penalty--80 penalty units. 18
conduct of election 19
Obstructing
492. A person must not obstruct another person conducting an election. 20
Maximum penalty--80 penalty units. 21
to comply with electoral officer's direction 22
Failing
493. A person to whom a direction is given by an electoral officer under 23
this part must not fail to comply with the direction, unless the person has a 24
s 494 323 s 495
Industrial Relations
reasonable excuse for not complying with the direction. 1
Maximum penalty--80 penalty units. 2
electoral officer's direction 3
Obstructing
494. A person must not obstruct another person complying with a 4
direction by an electoral officer under this part. 5
Maximum penalty--80 penalty units. 6
about ballots 7
Offences
495. A person must not, without lawful authority or excuse, do any of 8
the following about a ballot for an election-- 9
(a) obtain or possess a ballot paper if the person does not have the 10
right to obtain or possess it; 11
(b) pretend to be and vote as someone else; 12
(c) amend, deface, destroy, interfere with, or remove a ballot record; 13
(d) vote in the ballot if the person does not have the right to vote; 14
(e) vote more than once; 15
(f) forge a ballot record; 16
(g) utter a ballot record knowing it to be forged; 17
(h) give a ballot record to someone else; 18
(i) put a ballot record in a ballot box or other container used for the 19
ballot (a "ballot box") if the person does not have the right to 20
vote; 21
(j) deliver or post a ballot record to another person performing 22
functions for the ballot if the person does not have the right to 23
deliver or post it; 24
(k) destroy, interfere with, open, or remove a ballot box. 25
Maximum penalty--80 penalty units. 26
s 496 324 s 497
Industrial Relations
candidates etc. 1
Disadvantaging
496.(1) A person must not cause, inflict or procure a disadvantage to 2
anyone or anything because of, or to induce-- 3
(a) a candidature or withdrawal of a candidature in an election; or 4
(b) a vote or omission to vote in an election; or 5
(c) support for or opposition to a candidate in an election; or 6
(d) a promise of a vote, omission to vote, support or opposition for 7
or to a candidate in an election. 8
Maximum penalty--80 penalty units. 9
(2) In this section-- 10
"cause" a disadvantage includes offering, suggesting and threatening a 11
disadvantage. 12
"disadvantage" includes damage, detriment, injury, loss, punishment and 13
violence. 14
access to ballot paper 15
Unauthorised
497. A person must not, without lawful authority or excuse-- 16
(a) ask, require or induce another person to show to, or permit the 17
person to see, a ballot paper so the person can see the vote 18
recorded in the ballot paper-- 19
(i) while the paper is being marked; or 20
(ii) after it has been marked; or 21
(b) if the person is performing functions for an election, show to or 22
permit anyone else access to a ballot paper used in the election or 23
ballot, other than to perform the functions. 24
Maximum penalty--80 penalty units. 25
s 498 325 s 501
Industrial Relations
PART 8--ELECTION INQUIRIES 1
Division 1--Preliminary 2
does not apply to corporations 3
Part
498. This part does not apply to a corporation. 4
Division 2--Applications and referrals to commission 5
may conduct election inquiry 6
Commission
499. The commission may, on an application referred to it by the 7
registrar under this part, conduct an inquiry (an "election inquiry") about a 8
claimed irregularity in an election for an organisation or branch. 9
may apply 10
Who
500. An application for an election inquiry may be made only by-- 11
(a) a financial member of the organisation; or 12
(b) a person who was a financial member of the organisation within 13
1 year before the application is made. 14
for application 15
Requirements
501. The application-- 16
(a) may be filed only during the period that-- 17
(i) starts on the day the prescribed information for the election is 18
filed under section 481(1)148; and 19
(ii) ends-- 20
(A) 6 months after the election has ended; or 21
148 Section 481 (Organisation or branch must fill prescribed election information)
s 502 326 s 503
Industrial Relations
(B) on a later day allowed by the registrar; and 1
(b) must state-- 2
(i) the election for which the application is made; and 3
(ii) the irregularity that is claimed to have happened; and 4
(iii) the facts relied on to support the application; and 5
(c) must be accompanied by an affidavit by the applicant stating the 6
facts claimed in the application are true to the best of the 7
applicant's knowledge and belief. 8
to commission 9
Referral
502.(1) The registrar may refer the application to the commission only if 10
satisfied-- 11
(a) there are reasonable grounds to inquire whether there has been an 12
irregularity in the election that may have affected, or may affect, 13
the election result; and 14
(b) the circumstances justify an inquiry. 15
(2) In deciding whether to refer, the registrar may consider other 16
appropriate information of which the registrar has knowledge. 17
(3) An election inquiry is taken to have been started in the commission 18
when the application is referred. 19
3--Investigations and interim orders 20
Division
may authorise registrar to investigate 21
Commission
503.(1) The commission may, by order, before or after the registrar's 22
decision to refer, authorise the registrar to do any of the following-- 23
(a) inspect ballot records for the election; 24
(b) take possession of the ballot records; 25
(c) enter a place of business used or occupied by the organisation or 26
branch at which the registrar reasonably believes the ballot records 27
are held, using necessary and reasonable help; 28
s 504 327 s 504
Industrial Relations
(d) require a person to give the registrar ballot records in the person's 1
possession or under the person's control or to keep the ballot 2
records until-- 3
(i) an inquiry is completed; or 4
(ii) an earlier time ordered by the commission. 5
(2) If a person is required to give ballot records under subsection (1)(d), 6
the person must not fail to comply with the direction, unless the person has 7
a reasonable excuse for not complying with the requirement. 8
Maximum penalty--80 penalty units. 9
(3) A person must not obstruct the registrar when exercising a power 10
under this section. 11
Maximum penalty--80 penalty units. 12
orders 13
Interim
504. After the registrar refers the application, the commission may, make 14
an interim order-- 15
(a) stopping any further steps to-- 16
(i) conduct the election; or 17
(ii) give effect to the election result; or 18
(b) stopping a person from acting in an office the inquiry is about, if 19
the person has-- 20
(i) assumed the office; or 21
(ii) continued to act in it; or 22
(iii) claims to occupy it; or 23
(c) directing a person who holds, or who last held before the election, 24
an office for which the election is held to act or continue to act in 25
the office; or 26
(d) directing a member of the organisation or branch or another stated 27
person to act in an office for which the election is held, if it 28
considers a direction under paragraph (c) would-- 29
(i) not be practicable; or 30
s 505 328 s 507
Industrial Relations
(ii) affect the efficient conduct of the affairs of the organisation 1
or branch; or 2
(iii) be inappropriate having regard to the nature of the inquiry; or 3
(e) consequential to, or amending or discharging, another interim 4
order. 5
acting under interim order 6
Person
505. If a person is acting, or continuing to act, in an office under an 7
interim order, the person is taken to hold the office-- 8
(a) while the order is in force; and 9
(b) despite the rules of the organisation or branch. 10
interim order ends 11
When
506. An interim order ends-- 12
(a) at the completion of the election inquiry and everything the 13
commission ordered, other than under an interim order, during 14
the inquiry; or 15
(b) the day stated in the order for it to end; or 16
(c) if it is discharged by the commission. 17
Division 4--Conduct of election inquiries 18
functions and powers for inquiry 19
Commission's
507.(1) For an election inquiry, the commission must inquire into and 20
decide-- 21
(a) if an irregularity has happened in the election; and 22
(b) other questions it considers necessary about the conduct and 23
results of the election. 24
(2) The commission may make orders it considers necessary for the 25
inquiry, including, for example, a recount of votes for the election. 26
s 508 329 s 509
Industrial Relations
if irregularity found 1
Orders
508.(1) This section applies if the commission finds an irregularity has 2
happened, or is likely to happen, in an election. 3
(2) The commission may make an order-- 4
(a) for a fresh election or the repeat of a step in the election, including, 5
for example, calling for and submitting nominations; or 6
(b) amending the election rules of the relevant organisation or branch 7
in a way it considers necessary to correct a procedural defect in 8
the rules; or 9
(c) directing safeguards it considers appropriate to stop irregularities 10
in the election, fresh election or repeat step; or 11
(d) appointing a returning officer to act with any returning officer 12
appointed under the rules; or 13
(e) providing for the powers of a returning officer appointed under 14
paragraph (d). 15
(3) Also, the commission may, by order, if it finds the election result 16
may have been, or may be, affected by the irregularity or a similar 17
irregularity, declare-- 18
(a) the election, or a step taken in or for it, to be void; or 19
(b) a person apparently elected in the election not to have been elected; 20
or 21
(c) a person to have been elected at the election instead of a person 22
declared not to have been elected. 23
(4) The commission may make any other order that is consequential to 24
an order under this section. 25
pt 8 orders 26
Enforcing
509. The commission may make an order in the nature of an injunction, 27
either mandatory or restrictive, it considers necessary to enforce an order or 28
perform its functions or exercise its powers under this part. 29
s 510 330 s 512
Industrial Relations
Division 5--Offences about election inquiries 1
applicant for inquiry 2
Disadvantaging
510.(1) A person must not cause, inflict or procure a disadvantage to 3
another person because the other person has applied for an election inquiry. 4
Maximum penalty--80 penalty units. 5
(2) In this section-- 6
"disadvantage" includes damage, detriment, injury, loss, punishment and 7
violence. 8
orders being carried out 9
Obstructing
511. A person must not obstruct the carrying out of a commission order 10
under this part. 11
Maximum penalty--80 penalty units. 12
6--Miscellaneous 13
Division
help for application 14
Financial
512.(1) An applicant for an election inquiry may apply to the Minister for 15
financial help. 16
(2) The Minister may direct that financial help from the State be given to 17
the applicant for the cost of the application, including witness expenses, if-- 18
(a) the commission found an irregularity happened in the election and 19
the Minister considers the circumstances justify the payment; or 20
(b) the commission certifies the applicant acted reasonably in 21
applying for the inquiry; or 22
(c) after considering the commission's findings at the inquiry, it is 23
not just the applicant should pay any of the costs. 24
(3) The registrar must decide the amount of the financial help. 25
s 513 331 s 514
Industrial Relations
of fresh election ordered by inquiry 1
Costs
513.(1) If the commission orders a fresh election under this part, the 2
State must pay the costs of the fresh election. 3
4
Example of a `cost'--
5
The cost of premises used for the fresh election.
(2) In this section-- 6
"fresh election", for an organisation or branch, includes-- 7
(a) a step in an election; and 8
(b) a safeguard, not allowed for under the rules of the organisation or 9
branch, for an election or step in an election. 10
ART 9--OFFICERS 11
P
Division 1--Preliminary 12
for pt 9 13
Definitions
514. In this part-- 14
"candidate" means a candidate for election or appointment to an office. 15
"convicted of a disqualifying offence" means being found guilty of the 16
offence, on a plea of guilty or otherwise, whether or not a conviction 17
was recorded. 18
"convicted person" see section 515. 19
"disqualification period" see section 522(1). 20
"disqualifying offence" means an offence-- 21
(a) against an Act or a law of the State or another jurisdiction, 22
involving fraud or dishonesty punishable on conviction by 23
imprisonment for 3 months or more; or 24
(b) against this chapter involving a failure to keep ballot records, 25
comply with a direction or give information or documents for an 26
s 515 332 s 515
Industrial Relations
election or ballot; or 1
(c) against section 492, 627, 656 or 657;149 or 2
(d) involving the formation, registration or management of an 3
association, corporation or organisation; or 4
(e) that is a violent offence. 5
"elected", to an office, includes appointed to fill a casual vacancy in the 6
office. 7
"leave application" means an application under division 2, subdivision 2. 8
"violent offence" means an offence involving the-- 9
(a) intentional use of violence towards another person; or 10
(b) causing of death or injury to a person; or 11
(c) damage or destruction of property. 12
of "convicted person" for pt 9 13
Meaning
515.(1) In this part, a "convicted person" means a person who-- 14
(a) has been convicted on indictment of a disqualifying offence; or 15
(b) without limiting paragraph (a), has served, or is serving, a prison 16
term for a violent offence. 17
(2) A "convicted person" also includes a person convicted, before this 18
part commenced, of an offence that, apart from the non-commencement of 19
this part, would have been a disqualifying offence. 20
149 Sections 492 (Obstructing conduct of election), 627 (Obstructing conduct of
ballot), 656 (Falsely obtaining organisation's property) and 657 (Wrongfully
applying organisation's property)
s 516 333 s 518
Industrial Relations
2--Disqualifications from candidature or holding office 1
Division
1--Disqualifications 2
Subdivision
under 18 3
Persons
516. A person under 18 years is not eligible to be a candidate or to be 4
elected as a management committee member, treasurer or trustee of an 5
organisation. 6
persons--candidature 7
Convicted
517. A person convicted of a disqualifying offence may be a candidate or 8
elected to an office in an organisation only if-- 9
(a) the person has made a leave application to hold the office and-- 10
(i) was given leave to hold the office; or 11
(ii) the court fixed a disqualification period for the person and 12
the period has ended; or 13
(b) 5 years has elapsed since the later of the following-- 14
(i) the conviction; 15
(ii) if the person served a prison term for the offence, the 16
person's release from prison. 17
persons--holding office 18
Convicted
518.(1) This section applies if a person who holds an office in an 19
organisation is convicted of a disqualifying offence. 20
(2) The person ceases to hold the office 28 days after the conviction 21
unless the person makes a leave application within that time. 22
(3) However, if the person makes a leave application within that time, the 23
person ceases to hold the office-- 24
(a) 3 months after the conviction, if the application has not been 25
decided and the court has not extended that time; or 26
s 519 334 s 521
Industrial Relations
(b) if the court has extended that time, at the end of the extended time. 1
(4) The court may extend the time only if-- 2
(a) an application for the extension before the time mentioned in 3
subsection (3)(a); or 4
(b) if it has previously extended the time, the application for the 5
further extension is made before the end of the time as extended. 6
Subdivision 2--Applications for leave to hold office 7
candidates 8
Prospective
519.(1) This section applies if a person who wants to be a candidate for 9
an office in an organisation has, within 5 years, been-- 10
(a) convicted of a disqualifying offence; or 11
(b) released from prison after serving a prison term for a conviction 12
for a disqualifying offence. 13
(2) The person may apply to the court for leave to hold the office. 14
(3) The court must not grant the leave if the applicant has already made a 15
leave application for the conviction. 16
office holders 17
Existing
520.(1) If a person holding an office is convicted of a disqualifying 18
offence, the person may apply to the court for leave to hold the office or 19
another stated office. 20
(2) The court may grant the leave only if-- 21
(a) the application is made within 28 days after the conviction; and 22
(b) the person has not already made a leave application for the 23
conviction. 24
of leave applications 25
Consideration
521. In deciding a leave application, the court must consider-- 26
s 522 335 s 524
Industrial Relations
(a) the nature of the disqualifying offence in relation to which leave is 1
sought; and 2
(b) the circumstances and the nature of the applicant's involvement in 3
the commission of the offence; and 4
(c) the applicant's general character and fitness to be involved in the 5
management of organisations, having regard to the offence; and 6
(d) any other matter it considers appropriate. 7
period may be given if leave refused 8
Disqualification
522.(1) If the court decides to refuse a leave application, it may fix a 9
period (a "disqualification period") during which the applicant is 10
disqualified from holding office in any organisation. 11
(2) However, the court must not fix a disqualification period that starts 12
before or ends more than 5 years after the later of the following-- 13
(a) the conviction that is the subject matter of the application; 14
(b) if the person served a prison term for the conviction, the person's 15
release from prison. 16
or fixing of disqualification period does not affect div 2 17
Leave
523. The granting of a leave application or the fixing of a disqualification 18
period for a conviction does not affect the operation of this division for 19
another conviction. 20
Subdivision 3--Miscellaneous 21
about eligibility or ceasing to hold office 22
Declaration
524.(1) An organisation, a member of the organisation or the registrar 23
may apply to the court for a declaration that, because of this division, a 24
person-- 25
(a) is not, or was not, eligible to be a candidate or to be elected to an 26
office in the organisation; or 27
s 525 336 s 528
Industrial Relations
(b) has ceased to hold an office in the organisation. 1
(2) Despite anything in the rules of the organisation, the court may make 2
an order it considers appropriate to give effect to the declaration. 3
evidence for div 2 4
Certificate
525.(1) For an application under this division, a certificate stating the 5
following about a person and purporting to be by an appropriate officer of a 6
court of the State or another jurisdiction is evidence the person was-- 7
(a) convicted by the court of a stated offence on a stated day; 8
(b) acquitted by the court of a stated offence, or that a stated charge 9
against the person was dismissed by the court, on a stated day. 10
(2) A certificate purporting to be by an officer in charge of a prison is 11
evidence that a stated person was released from the prison on a stated day. 12
(3) In this section-- 13
"appropriate officer" of a court means a registrar or other officer with 14
registration functions for the court. 15
3--Officers' financial management duties 16
Division
of div 3 17
Application
526. This division applies if an officer of an organisation performs 18
functions or exercises powers relating to the organisation's financial 19
management. 20
of honesty 21
Duty
527. The officer must act honestly. 22
Maximum penalty--40 penalty units. 23
of reasonable care and diligence 24
Duty
528. The officer must exercise the degree of care and diligence that a 25
reasonable person in the officer's position would be reasonably expected to 26
s 529 337 s 530
Industrial Relations
exercise. 1
Maximum penalty--40 penalty units. 2
with material personal interests 3
Officers
529.(1) This section applies if the officer has a material personal interest 4
in a matter involving the organisation's financial management. 5
(2) The officer must disclose the nature of the interest to the 6
organisation's management committee as soon as practicable after the 7
relevant facts come to the officer's knowledge. 8
Maximum penalty--40 penalty units. 9
(3) If the matter is to be considered at an annual general or management 10
committee meeting at which the officer is present, the officer must not-- 11
(a) vote on the matter; or 12
(b) remain at the meeting when the matter is being considered. 13
Maximum penalty--40 penalty units. 14
duties not affected 15
Other
530. This division does not-- 16
(a) limit a law about the exercise of an officer's powers or 17
performance of an officer's functions; or 18
(b) prevent the taking of proceedings about a breach of an officer's 19
duty to an organisation. 20
s 531 338 s 532
Industrial Relations
ART 10--MEMBERSHIP 1
P
1--Eligibility and admission to membership 2
Division
3
Eligibility
531. A person is eligible to become a member of an organisation if the 4
person-- 5
(a) by the nature of the person's occupation or employment, engages 6
in a calling for which the organisation is registered; and 7
(b) complies with the organisation's rules. 8
to admit 9
Obligation
532.(1) An organisation must admit to membership a person who is 10
eligible to become a member-- 11
(a) within 3 months of the person applying to become a member; or 12
(b) if a question or dispute has within the 3 months been referred to 13
the court for decision under division 3, within 1 month of the 14
court deciding the person is, or is eligible to become, a member. 15
Maximum penalty--40 penalty units 16
(2) In this section-- 17
"admit to membership" means-- 18
(a) do what is necessary under the organisation's rules to ensure the 19
person is a member of the organisation; or 20
(b) record in the organisation's members register the particulars 21
required under section 545150 for the person's membership of the 22
organisation. 23
150 Section 545 (Requirements for members register)
s 533 339 s 535
Industrial Relations
to give union card 1
Obligation
533.(1) If a person is admitted to membership of an organisation or a 2
person's membership of an organisation is renewed, the organisation must 3
give a union card to the person as soon as practicable after the admission or 4
renewal. 5
Maximum penalty--40 penalty units 6
(2) The giving of a union card under this section does not prevent the 7
organisation making an application under division 2 or the court making a 8
decision or order under division 2. 9
(3) In this section-- 10
"union card" means a document issued by an organisation acknowledging 11
that the person is a member of the organisation. 12
under 18 13
Members
534. A person under 18 years-- 14
(a) may be or become a member of an organisation, unless its rules 15
provide otherwise; and 16
(b) if the person is a member of an organisation, the person-- 17
(i) has the rights of a member of an organisation under this part 18
and the organisation's rules; and 19
(ii) may execute instruments and give receipts under the rules. 20
Division 2--Membership disputes 21
may decide 22
Court
535. The court may, on the application of an organisation or a person 23
who has applied for membership of an organisation, decide a question or 24
dispute about the following-- 25
(a) whether a person is, or is eligible to become, a member of the 26
organisation; 27
(b) when a person became a member or must be treated by the 28
s 536 340 s 537
Industrial Relations
organisation and its members as if the person had become a 1
member; 2
(c) the qualifications of a membership applicant; 3
(d) the reasonableness of a membership subscription, fine or levy, or 4
other requirement of its members under its rules. 5
application 6
Deciding
536. On hearing the application, the court may do any of the following-- 7
(a) declare a person is or is not a member of the organisation; 8
(b) decide a membership applicant may become a member of the 9
organisation; 10
(c) order the organisation to admit a membership applicant to its 11
membership and record the applicant as a member in its members 12
register; 13
(d) order the organisation to treat a membership applicant as if the 14
applicant had been a member of the organisation from a stated 15
day; 16
(e) order an amendment or repeal of a rule of the organisation. 17
Division 3--Membership subscriptions 18
to give receipt 19
Obligation
537.(1) This section applies if a person pays an organisation a 20
membership subscription for the person's membership or membership 21
renewal of the organisation. 22
(2) The organisation must give the person a written receipt for the 23
payment within 1 month after the payment was made. 24
Maximum penalty for subsection (2)--40 penalty units. 25
s 538 341 s 541
Industrial Relations
4--Resignation 1
Division
applies despite rules 2
Division
538. This division applies despite an organisation's rules. 3
4
Resignation
539.(1) A member of an organisation may resign from membership of 5
the organisation under this section or the organisation's rules. 6
(2) The person's membership ends if the person gives the organisation a 7
notice stating the person resigns from the organisation. 8
(3) The person's membership ends-- 9
(a) if the notice states a day or time after the notice is given when the 10
resignation takes effect, on the day or time; or 11
(b) otherwise, when the notice is given. 12
if membership subscription unpaid for 2 years 13
Resignation
540.(1) A person's membership of an organisation ends if the person-- 14
(a) owes the organisation a membership subscription; and 15
(b) has owed the subscription for 2 years. 16
(2) For subsection (1), a person is taken not to owe a subscription if the 17
person has-- 18
(a) entered into an agreement with the organisation to pay the 19
subscription; and 20
(b) complied with, and continues to comply with, the agreement. 21
5--Liabilities of member to organisation 22
Division
of "member's liability" for div 5 23
Meaning
541. In this division, a "member's liability" to an organisation means an 24
amount payable to the organisation under its rules by a member or former 25
s 542 342 s 543
Industrial Relations
member of the organisation. 1
2
Examples of a `member's liability'--
3
A membership fee, fine, levy or subscription.
member's liabilities 4
Recovering
542.(1) A member's liability to an organisation may only be sued for and 5
recovered before a magistrate. 6
(2) Proceedings to recover a member's liability to an organisation must 7
be commenced within 3 years from when the member's liability first 8
become payable. 9
(3) If proceedings to recover a member's liability to an organisation are 10
not commenced under subsection (2), the member's liability is not 11
recoverable. 12
on liability after resignation 13
Limit
543. If a person's membership of an organisation has ended, the 14
person-- 15
(a) continues to be liable for a member's liability that-- 16
(i) became payable within 1 year before the membership ended; 17
and 18
(ii) is recoverable under section 542; and 19
(b) is not liable for a member's liability that became payable-- 20
(i) more than 1 year before the membership ended; or 21
(ii) after the membership ended. 22
s 544 343 s 546
Industrial Relations
PART 11--REGISTERS 1
and officers registers 2
Members
544. An organisation must, for each year, keep written registers stating 3
each person who is or was-- 4
(a) a member of the organisation during the whole or part of the year; 5
or 6
(b) an officer of the organisation during the whole or part of the year. 7
Maximum penalty--40 penalty units. 8
for members register 9
Requirements
545.(1) An organisation must record the following for each person who 10
is or was a member of the organisation during the whole or part of the year 11
for which the register is kept-- 12
(a) the person's name; 13
(b) for an employee organisation, the person's residential address; 14
(c) for an employer organisation, the person's business address; 15
(d) the day the person became a member; 16
(e) if the person's membership has ended, the day it ended. 17
Maximum penalty--40 penalty units. 18
(2) If the organisation has more than 100 members, it must keep the 19
register in a way that allows the names to be read alphabetically. 20
Maximum penalty--40 penalty units. 21
register--required particulars 22
Officers
546. An organisation must record the following for each person who is 23
or was an officer of the organisation during the whole or part of the year for 24
which the register is kept-- 25
(a) the person's name and address; 26
(b) each office the person holds or held; 27
s 547 344 s 550
Industrial Relations
(c) the day the person was elected or appointed to each office; 1
(d) if a person ceased or ceases to hold an office, the day the office 2
holding ceased or ceases. 3
Maximum penalty--40 penalty units. 4
obligation to file officers register 5
Annual
547. An organisation must, before 31 March in each year, file a copy of 6
its officers register as at the start of the year. 7
Maximum penalty--40 penalty units. 8
to file officers register on change of office holder 9
Obligation
548. An organisation must file a copy of its officers register within 10
30 days after a person becomes or ceases to be an officer of the 11
organisation. 12
Maximum penalty--40 penalty units. 13
of registers 14
Inspection
549.(1) When an organisation's office is open for business, its members 15
and officers registers must be open for inspection, free of charge, at the 16
office by-- 17
(a) the registrar, or a person with the registrar's written authority; or 18
(b) the organisation's members, or a person with a member's written 19
authority. 20
(2) A copy of an organisation's officers register filed with the registrar 21
may be inspected by any person who pays the fee prescribed under the rules 22
of court. 23
directions about registers 24
Registrar's
550.(1) The registrar may give a written direction to an organisation to-- 25
(a) give the registrar its members or officers register; or 26
s 551 345 s 552
Industrial Relations
(b) correct its members or officers register in a stated way the 1
registrar considers is necessary to ensure compliance with this 2
part. 3
(2) The organisation must comply with the direction, unless it has a 4
reasonable excuse for not complying with the direction. 5
Maximum penalty for subsection (2)--40 penalty units. 6
PART 12--ACCOUNTS AND AUDIT 7
Division 1--Preliminary 8
for pt 12 9
Definitions
551. In this part-- 10
"accounting deficiency" see section 560(d). 11
"accounting records" see section 554(3). 12
"financial affairs" includes transactions. 13
"financial year" of an organisation, see section 552. 14
"presentation meeting" see section 565. 15
"registrar's auditor" see section 575(1). 16
"transactions" includes membership subscription payments. 17
of "financial year" for pt 12 18
Meaning
552.(1) In this part, a "financial year" of an organisation means-- 19
(a) the period of 1 year starting on 1 July; or 20
(b) if its rules provide for another period of 1 year as its financial 21
year, the other period. 22
(2) If an organisation's rules change so that the period of its financial year 23
changes, the time from the end of the financial year before the change and 24
s 553 346 s 554
Industrial Relations
the start of the first financial year after the change is taken to be a financial 1
year. 2
(3) The period from when an organisation is registered to the start of its 3
first financial year under subsection (1) is not included in a financial year of 4
the organisation. 5
applies to branches with separate financial affairs 6
Part
553. If a branch keeps accounting records and accounts separate from its 7
organisation's accounts and accounting records, this part, other than this 8
section, applies to the branch for the year, as if-- 9
(a) it is an organisation (the "notional organisation"); and 10
(b) the members of the organisation that form the branch are 11
members of the notional organisation; and 12
(c) employees of the organisation employed for the branch, whether 13
or not they are also employed for another branch, are employees 14
of the notional organisation; and 15
(d) a journal published by the organisation is a journal published by 16
the notional organisation. 17
Division 2--Accounting obligations 18
to keep accounting records 19
Obligation
554.(1) An organisation must keep accounting records for its transactions 20
for at least 7 years after the end of the transactions they are about. 21
Maximum penalty--40 penalty units. 22
(2) The accounting records must be kept in a way prescribed under a 23
regulation. 24
Maximum penalty--40 penalty units. 25
(3) In this section-- 26
"accounting records" of an organisation means financial documents that-- 27
(a) explain the methods and calculations about how its accounts are 28
s 555 347 s 556
Industrial Relations
made up and correctly record and explain the organisation's 1
transactions and financial position; or 2
(b) are prescribed under a regulation. 3
to prepare accounts 4
Obligation
555.(1) An organisation must prepare the accounts and other statements 5
("accounts") prescribed under a regulation for each financial year as soon 6
as practicable after the year ends. 7
Maximum penalty--40 penalty units. 8
(2) The organisation must include in the accounts-- 9
(a) the relevant figures from the preceding financial year's accounts; 10
and 11
(b) the particulars prescribed under a regulation about each matter for 12
which a compulsory levy or voluntary contribution has been paid 13
to the organisation. 14
Maximum penalty--40 penalty units. 15
(3) A regulation may prescribe certificates that must be included in the 16
accounts. 17
(4) In this section-- 18
"compulsory levy", for an organisation, means a levy payable by a 19
member to the organisation under its rules. 20
may apply for prescribed information 21
Member
556.(1) A member of an organisation may apply to the organisation for 22
information that it must, under a regulation, give its members. 23
(2) An application may be made by the registrar for a member. 24
(3) The organisation must give the member or, if the registrar applied for 25
a member, the registrar, the information applied for in the way prescribed 26
under a regulation. 27
Maximum penalty--40 penalty units. 28
s 557 348 s 558
Industrial Relations
(4) If the information is given to the registrar, the registrar must give the 1
information to the member for whom the registrar made the application. 2
directions about accounts and accounting records 3
Registrar's
557.(1) The registrar may direct an officer of an organisation to give the 4
registrar-- 5
(a) stated information about the organisation's funds and accounts 6
within the officer's knowledge or possession; or 7
(b) stated accounts or accounting records of the organisation over 8
which the officer has control or custody. 9
(2) The registrar may also direct any officer of an organisation with 10
functions or powers for keeping its accounts or accounting records to-- 11
(a) keep the organisation's accounts in a stated form; or 12
(b) make a stated entry or entries of a stated type in the accounts. 13
(3) If an officer is given a direction under this section, the officer must 14
comply with the direction, unless the officer has a reasonable excuse for not 15
complying with the direction. 16
Maximum penalty--40 penalty units. 17
(4) It is a reasonable excuse for the officer not to comply with the 18
direction if doing so might tend to incriminate the officer. 19
Division 3--Audits 20
to have auditor 21
Obligation
558.(1) An organisation must appoint a competent person as its auditor 22
to-- 23
(a) inspect and audit the organisation's accounting records for each 24
financial year for which the auditor is appointed; and 25
(b) make a report (an "audit report") to the organisation within 26
4 months after the end of each financial year. 27
Maximum penalty--40 penalty units. 28
s 559 349 s 560
Industrial Relations
(2) A person, other than a competent person, must not-- 1
(a) accept an appointment as an auditor; or 2
(b) continue in an appointment to perform an audit or prepare an audit 3
report. 4
Maximum penalty--40 penalty units. 5
(3) In this section-- 6
"competent person", for an audit or audit report for an organisation, 7
means a person who is-- 8
(a) a registered company auditor under the Corporations Law, 9
section 9, definition "registered company auditor"; and 10
(b) not an officer or a member of the organisation; and 11
(c) not employed by the organisation, other than as its auditor. 12
auditor may be removed 13
How
559. An organisation's auditor may only be removed-- 14
(a) if the auditor was appointed by its management committee--with 15
the agreement of a majority of the members of the committee; or 16
(b) if the auditor was appointed by a general meeting of the 17
organisation, by a resolution passed at a general meeting by a 18
majority of its members voting at the meeting. 19
for audit report 20
Requirements
560. An audit report must state whether, in the auditor's opinion-- 21
(a) the organisation kept satisfactory accounting records for the 22
financial year, including records of-- 23
(i) the sources and nature of the organisation's income, 24
including membership subscriptions and other income from 25
members; and 26
(ii) the nature of and reasons for the organisation's expenditure; 27
and 28
(b) the accounts for the year were properly drawn to give a true and 29
s 561 350 s 563
Industrial Relations
fair view of the organisation's-- 1
(i) financial affairs at the end of the year; and 2
(ii) income and expenditure and surplus or deficit for the year; 3
and 4
(c) the accounts for the year were prepared under this Act; and 5
(d) there was a deficiency, failure or shortcoming (an "accounting 6
deficiency") for a matter mentioned in paragraphs (a) to (c); and 7
(e) information and explanations required from the organisation's 8
officers or employees were given. 9
report must not be knowingly false or misleading 10
Audit
561.(1) An auditor must not state anything in an audit report the auditor 11
knows is false or misleading in a material particular. 12
Maximum penalty--40 penalty units. 13
(2) It is enough for a complaint for an offence against subsection (1) to 14
state the statement made was `false or misleading' to the auditor's 15
knowledge. 16
must notify registrar of contravention 17
Auditor
562. An auditor performing auditor's functions for an organisation must 18
immediately notify the registrar if the auditor-- 19
(a) becomes aware a provision of this part has been contravened; and 20
(b) is of the opinion that the matter can not be adequately dealt with 21
by comment in the auditor's audit report. 22
Maximum penalty--40 penalty units. 23
powers 24
Auditor's
563.(1) An organisation's auditor has the right-- 25
(a) to full and free access at all reasonable times to the organisation's 26
records about its-- 27
s 564 351 s 564
Industrial Relations
(i) payments or receipts; or 1
(ii) acquisition, receipt, custody or disposal of property; and 2
(b) to ask the organisation's employees, members or officers for 3
information or explanations required for the audit. 4
(2) The auditor may authorise another appropriately qualified person (an 5
"authorised person") to exercise the rights. 6
(3) The organisation or an employee, member or officer of the 7
organisation must not obstruct the auditor or an authorised person when 8
exercising any of the rights unless the person has a reasonable excuse. 9
Maximum penalty--40 penalty units. 10
(4) The auditor or an authorised person may require the organisation or 11
its employees, members or officers to produce to the auditor or authorised 12
person a document in the person's custody or control. 13
(5) The organisation, employee, member or officer must give the auditor 14
or authorised person the document, unless the person has a reasonable 15
excuse for not giving the document. 16
Maximum penalty--40 penalty units. 17
(6) It is a reasonable excuse for the person not to give the document if 18
doing so might tend to incriminate the person. 19
(7) In this section-- 20
"auditor" includes the registrar's auditor engaged to examine the 21
organisation's accounting records. 22
have qualified privilege 23
Auditors
564.(1) An auditor may make a statement or comment that is defamatory 24
if it is-- 25
(a) made in good faith; and 26
(b) made in the course of performing the auditor's functions as an 27
auditor under this Act; and 28
(c) relevant to the auditor's functions. 29
(2) A person may print or publish in good faith a document that contains 30
s 565 352 s 567
Industrial Relations
defamatory matter, if it was-- 1
(a) prepared by an auditor for an audit under this Act; and 2
(b) required to be filed or made to the registrar. 3
(3) In this section-- 4
"auditor" means an organisation's auditor or the registrar's auditor. 5
4--Presentation and filing of audit reports 6
Division
to present to general or committee meeting 7
Obligation
565. An organisation must present its audit report and relevant accounts 8
for each of its financial years to a general meeting or management 9
committee meeting (a "presentation meeting") within-- 10
(a) 5 months after the end of the financial year that the report and 11
accounts are about; or 12
(b) if the registrar has extended the time to hold the meeting, the 13
extended time. 14
Maximum penalty--40 penalty units. 15
to publish audit report and accounts 16
Obligation
566. An organisation must, at least 28 days before each presentation 17
meeting-- 18
(a) give its members, free of charge, a copy of the audit report and 19
relevant accounts to be presented at the meeting; or 20
(b) publish the report and accounts in a journal or newsletter that it 21
gives to its members free of charge. 22
Maximum penalty--40 penalty units. 23
of meetings to auditor 24
Notice
567.(1) An organisation must give its auditor notice of-- 25
(a) each presentation meeting; and 26
s 568 353 s 569
Industrial Relations
(b) any other meeting of the organisation at which business is to be 1
conducted about the auditor, in that capacity. 2
Maximum penalty--40 penalty units. 3
(2) In this section-- 4
"notice" of the meeting means the notice of the meeting that the persons 5
who may attend the meeting have the right to receive under the 6
organisation's rules. 7
may attend meetings 8
Auditor
568.(1) An organisation's auditor, or another person authorised by the 9
auditor, may attend and address the part of-- 10
(a) a presentation meeting at which the auditor's audit report and 11
relevant accounts are to be considered or presented; or 12
(b) any other meeting of the organisation at which business is to be 13
conducted about the auditor, in that capacity. 14
(2) An employee, member or officer of the organisation must not 15
obstruct the auditor or authorised person from attending or addressing the 16
part of the meeting, unless the person has a reasonable excuse. 17
Maximum penalty--40 penalty units. 18
or misleading statements about reports 19
False
569.(1) This section applies if-- 20
(a) a member of an organisation's management committee-- 21
(i) gives members of the organisation a copy of its audit report 22
and relevant accounts; or 23
(ii) presents the report and accounts to a general meeting or 24
management committee meeting of the organisation; and 25
(b) the member comments on a matter dealt with in the report or 26
accounts. 27
(2) The member must not state anything in the comment the member 28
knows is false or misleading in a material particular. 29
s 570 354 s 571
Industrial Relations
Maximum penalty--40 penalty units. 1
(3) It is enough for a complaint for an offence against subsection (2) to 2
state the statement made was `false or misleading' to the member's 3
knowledge. 4
and accounts must be filed 5
Report
570.(1) An organisation must, within the required period, file-- 6
(a) a copy of the audit report and relevant accounts for each of its 7
financial years; and 8
(b) a certificate by its president or secretary stating the originals of the 9
report and accounts have been presented to a general meeting or 10
management committee meeting of the organisation. 11
Maximum penalty--40 penalty units. 12
(2) In this section-- 13
"required period" means the period of 14 days after the report and 14
accounts are presented or a longer time allowed by the registrar. 15
Division 5--Registrar's investigations and audits 16
investigations 17
Registrar's
571.(1) The registrar must investigate an organisation's finances or 18
financial administration if-- 19
(a) an audit report for the organisation states-- 20
(i) there was an accounting deficiency in the organisation's 21
accounts; or 22
(ii) another matter the registrar considers should be investigated; 23
or 24
(b) asked by the required number of members of the organisation. 25
(2) The registrar may also conduct an investigation-- 26
s 572 355 s 574
Industrial Relations
(a) if satisfied there are reasonable grounds to conduct an 1
investigation; or 2
(b) in another circumstance prescribed under a regulation. 3
directions for investigation 4
Registrar's
572.(1) The registrar may direct an auditor, employee or officer, or a 5
former auditor, employee or officer, of the organisation to give the 6
registrar-- 7
(a) information relevant to the investigation within the person's 8
knowledge or possession; or 9
(b) documents relevant to the investigation over which the person has 10
control or custody. 11
(2) If a direction is given to a person under this section, the person must 12
comply with the direction, unless the person has a reasonable excuse for not 13
complying with the direction. 14
Maximum penalty--40 penalty units. 15
(3) It is a reasonable excuse for the person not to comply with the 16
direction if doing so might tend to incriminate the person. 17
of contravention to organisation 18
Notice
573.(1) This section applies if the registrar considers an investigation has 19
revealed a contravention of this Act or a rule of the organisation investigated 20
about its finances or financial administration. 21
(2) The registrar may by notice-- 22
(a) advise the organisation of the contravention; and 23
(b) require it to take stated action, within a stated period, to remedy 24
the contravention. 25
may order compliance with notice 26
Court
574. If an organisation does not comply with a notice under 27
section 573(2), the court may, on the application of the registrar, make an 28
s 575 356 s 577
Industrial Relations
order it considers appropriate to remedy the contravention stated in the 1
notice. 2
examinations and audits 3
Registrar's
575.(1) The registrar may engage an auditor ("registrar's auditor") to 4
examine an organisation's accounting records for a financial year or other 5
period for the organisation if the registrar considers-- 6
(a) the organisation has not kept accounting records; or 7
(b) the organisation has an accounting deficiency in its accounts; or 8
(c) the organisation's property has been misappropriated or 9
improperly applied; or 10
(d) the organisation, or an officer of the organisation, has committed 11
an offence about the organisation's property. 12
(2) The registrar's auditor must examine the organisation's accounting 13
records and give the registrar an audit report. 14
of registrar's auditor 15
Powers
576. The registrar's auditor, or an appropriately qualified person 16
authorised in writing by the auditor, has the functions and powers of an 17
organisation's auditor. 18
of examination and audit by registrar's auditor 19
Costs
577.(1) The costs of or associated with an examination or audit by a 20
registrar's auditor must be paid by the organisation for which the 21
examination or audit is carried out if demanded by the registrar. 22
(2) The registrar may recover the amount of the costs not paid on 23
demand, as a debt. 24
s 578 357 s 579
Industrial Relations
Division 6--Loans, grants and donations 1
to file details of loans, grants and donations 2
Obligation
578.(1) An organisation must, as soon as practicable after the end of its 3
financial year, file a statement under this section of its loans, grants or 4
donations (a "payment") to the same person during the year of more than, 5
or if added together more than, $1 000. 6
Maximum penalty--40 penalty units. 7
(2) The statement must include for each payment-- 8
(a) the amount of the payment and the reason for making it; and 9
(b) if it was not a financial hardship payment-- 10
(i) the name and address of the person to whom it was made; 11
and; 12
(ii) if it was a loan, the arrangements to repay the loan. 13
(3) The statement must be signed by an officer of the organisation. 14
may inspect statement 15
Member
579. A filed statement may be inspected, during office hours, by a 16
member of the organisation that filed it. 17
s 580 358 s 580
Industrial Relations
ART 13--EXEMPTIONS 1
P
Division 1--Exemptions for organisations with counterpart federal 2
bodies 3
Subdivision 1--Exemption from holding election 4
if federal election held 5
Exemption
580.(1) An organisation, or 2 or more organisations jointly, may apply to 6
the registrar for an exemption from holding an election for a stated office or 7
offices (a "stated office"). 8
(2) The registrar may grant an exemption to an applicant for a stated 9
office only if satisfied as follows-- 10
(a) the applicant has a counterpart federal body; 11
(b) the body has held an election (the "federal election") for an office 12
(the "federal office") under the Commonwealth Act; 13
(c) the applicant's rules provide that the stated office is a 14
corresponding office to the federal office; 15
(d) the stated office will be filled by a person elected (the "elected 16
person") in the federal election to the federal office; 17
(e) if the eligibility rules of the organisation and the body differ--the 18
interests of the organisation's members who were ineligible to 19
vote in the federal election have not been disadvantaged. 20
(3) If an exemption is granted for a stated office-- 21
(a) the elected person is taken to have been elected to the stated office; 22
and 23
(b) the organisation's rules for the election of the elected person to the 24
stated office are taken to be complied with; and 25
(c) section 441151 does not to apply to the rules for the election. 26
151 Section 441 (Rules must provide for elections)
s 581 359 s 582
Industrial Relations
(4) In this section-- 1
"corresponding office", to a federal office, means an office, however 2
called, similar to the federal office. 3
to notify change in federal election result 4
Obligation
581.(1) This section applies if-- 5
(a) an organisation has been given an exemption under section 580; 6
and 7
(b) an order under the Commonwealth Act has changed the federal 8
election result about which the exemption was given. 9
(2) The organisation must give the registrar notice of the change as soon 10
as practicable after it becomes aware of the change. 11
Maximum penalty--40 penalty units. 12
(3) The organisation is taken to become aware of the change if an officer 13
of the organisation becomes aware of it. 14
2--Exemption from keeping members or officers register 15
Subdivision
16
Exemption
582.(1) An organisation, or 2 or more organisations jointly, may apply to 17
the registrar for an exemption from keeping a members or officers register. 18
(2) The registrar may grant an exemption to an applicant only if satisfied 19
the applicant has a counterpart federal body and-- 20
(a) for an exemption from keeping a members register-- 21
(i) its members are, when the application is made, recorded as 22
members of the body in the body's register of members 23
under the Commonwealth Act;152 and 24
(ii) the body has complied with the requirements under the 25
152 See the Commonwealth Act, section 268 (Records to be kept and lodged by
organisation).
s 583 360 s 584
Industrial Relations
Commonwealth Act about keeping its register of members 1
and other records for its members; or 2
(b) for an exemption from keeping an officers register-- 3
(i) its officers are all officers of the body; and 4
(ii) the body has complied with the requirements under the 5
Commonwealth Act about keeping and filing records for its 6
officers. 7
(3) The exemption remains in force for the period stated in it or, if no 8
period is stated, until it is cancelled. 9
of exemption 10
Effect
583.(1) While an exemption from keeping a members register is in force 11
for an organisation, its counterpart federal body's register of members is 12
taken to be the organisation's members register. 13
(2) While an exemption from keeping an officers register is in force for 14
an organisation, its counterpart federal body's register of officers is taken to 15
be the organisation's officers register. 16
to file copy of federal officers register 17
Obligation
584.(1) This section applies if the registrar has, under section 582, 18
granted an exemption to an organisation that exempts it from keeping an 19
officers register. 20
(2) The organisation must, within 14 days after any officer's records for 21
its counterpart federal body are filed under the Commonwealth Act, file a 22
copy of the records certified by the president or secretary of the body as 23
being a true copy of the records. 24
Maximum penalty--40 penalty units. 25
(3) In this section-- 26
"officer's records" includes a statement of changes made to the records 27
required to be filed under the Commonwealth Act.153 28
153 See the Commonwealth Act, section 268 (Records to be kept and lodged by
organisation).
s 585 361 s 586
Industrial Relations
to give notice of change or contravention 1
Obligation
585.(1) This section applies to an organisation that has been granted an 2
exemption under section 582 if any of the following events happen-- 3
(a) it no longer has a counterpart federal body; 4
(b) if it was exempted from keeping a members register-- 5
(i) its members are not recorded as members of the counterpart 6
federal body of the organisation for which the exemption 7
was granted in the body's register of members under the 8
Commonwealth Act; or 9
(ii) the body has contravened a requirement of the 10
Commonwealth Act about keeping or filing records for its 11
members; 12
(c) if it was exempted from keeping an officers register-- 13
(i) not all of its officers are officers of the counterpart federal 14
body of the organisation for which the exemption was 15
granted; or 16
(ii) the body has contravened a requirement of the 17
Commonwealth Act about keeping or filing records for its 18
officers. 19
(2) The organisation must give the registrar notice of the happening of the 20
event as soon as practicable after it becomes aware of the happening of the 21
event. 22
Maximum penalty--40 penalty units. 23
(3) The organisation is taken to become aware of the happening of the 24
event if an officer of the organisation becomes aware of it. 25
3--Exemption from accounting or audit provisions 26
Subdivision
may apply 27
Who
586. An organisation, or 2 or more organisations jointly, may apply to 28
the registrar for an exemption from the whole or part of part 12, divisions 2 29
s 587 362 s 587
Industrial Relations
to 4154 if-- 1
(a) either-- 2
(i) there is only 1 applicant and the applicant has a counterpart 3
federal body; or 4
(ii) there is more than 1 applicant and each applicant has the 5
same counterpart federal body; and 6
(b) the members of each applicant are recorded as members of the 7
body in the body's register of members under the 8
Commonwealth Act; and 9
(c) the body is not a body for which a certificate has been issued 10
under the Commonwealth Act, section 285.155 11
of exemption 12
Grant
587.(1) The registrar may grant the exemption only if satisfied the 13
counterpart federal body for which the application is to be granted has 14
complied with each relevant Commonwealth provision. 15
(2) The exemption remains in force for the period stated in it or, if no 16
period is stated, until it is cancelled. 17
(3) While the exemption is in force, each exempted provision does not 18
apply to the organisation. 19
(4) In this section-- 20
"relevant Commonwealth provision" means each provision of the 21
Commonwealth Act, part 9, division 11156 that corresponds, or 22
substantially corresponds, with each provision to be exempted. 23
154 Part 12, divisions 2 (Accounting obligations,) 3 (Audits) and 4 (Presentation and
filing of audit reports)
155 Section 285 (Accounts and audit where income of organisation is less than
certain amount) of the Commonwealth Act
156 Part 9, division 11 (Accounts and audit) of the Commonwealth Act
s 588 363 s 589
Industrial Relations
to file copies of federal audit documents 1
Obligation
588.(1) This section applies if the registrar has, under section 587, 2
granted an exemption for an organisation that exempts it from presenting or 3
filing audit reports or relevant accounts under part 12, division 4. 4
(2) The organisation must, within 14 days after the filing under the 5
Commonwealth Act, section 280,157 of any audit report or relevant accounts 6
for its counterpart federal body, file a copy of the documents certified by the 7
president or secretary of the body as being a true copy of the documents. 8
Maximum penalty for subsection (2)--40 penalty units. 9
to give notice of change or contravention 10
Obligation
589.(1) This section applies to an organisation that has been granted an 11
exemption under section 587 if any of the following events happen-- 12
(a) it no longer has a counterpart federal body; 13
(b) its members are not recorded as members of the counterpart 14
federal body of the organisation for which the exemption was 15
granted in the body's register of members under the 16
Commonwealth Act; 17
(c) a certificate is issued for the body under the Commonwealth Act, 18
section 285; 19
(d) it has contravened a relevant Commonwealth provision under 20
section 587 for which the exemption was granted. 21
(2) The organisation must give the registrar notice of the event as soon as 22
practicable after it becomes aware of the happening of the event. 23
Maximum penalty--40 penalty units. 24
(3) The organisation is taken to become aware of the happening of the 25
event if an officer of the organisation becomes aware of it. 26
157 Section 280 (Reports etc. to be lodged in Industrial Registry) of the
Commonwealth Act
s 590 364 s 592
Industrial Relations
2--Exemption from accounting or audit obligations for 1
Division
employer organisations that are corporations 2
may apply 3
Who
590. An employer organisation that is a corporation may apply to the 4
registrar for an exemption from the whole or part of part 12, divisions 2 5
to 4.158 6
of exemption 7
Grant
591.(1) The registrar may grant the exemption only if satisfied-- 8
(a) another Act or law imposes accounting and audit obligations on 9
the organisation that are an adequate substitute for each provision 10
to be exempted; and 11
12
Examples of other laws that impose accounting and audit obligations--
13
the Corporations Law, chapter 2M159
·
14
· the Associations Incorporation Act 1981.
(b) the organisation has complied with the provisions of the other Act 15
or law that correspond with or substantially correspond with each 16
provision to be exempted; and 17
(c) if the exemption is granted, the organisation will continue to be 18
financially accountable to its members. 19
(2) The exemption remains in force for the period stated in it or, if no 20
period is stated, until it is cancelled. 21
(3) While the exemption is in force, each exempted provision does not 22
apply to the organisation. 23
to file copies of reports under other Act or law 24
Obligation
592.(1) This section applies if-- 25
158 Part 12, divisions 2 (Accounting obligations,) 3 (Audits) and 4 (Presentation and
filing of audit reports)
159 Chapter 2M (Financial reports and audit) of the Corporations Law
s 593 365 s 593
Industrial Relations
(a) the registrar has, under section 591, granted an exemption for an 1
organisation from the requirement to present or file audit reports 2
or relevant accounts under part 12, division 4; and 3
(b) another Act or law requires the organisation or its counterpart 4
federal body to prepare and file with a person or body with 5
regulatory functions for the organisation-- 6
(i) a financial report; or 7
(ii) a director's report; or 8
(iii) an auditor's report. 9
(2) The organisation must, within 14 days after the report is filed under 10
the other Act or law, file a copy of the report certified by its president or 11
secretary as being a true copy of the report. 12
Maximum penalty for subsection (2)--40 penalty units. 13
to notify registrar of contravention of other law 14
Obligation
593.(1) This section applies if an organisation has contravened a 15
provision of another Act or law that corresponds, or substantially 16
corresponds, with the provision for which an exemption under section 591 17
was granted. 18
(2) The organisation must give the registrar notice of the contravention as 19
soon as practicable after it becomes aware of the happening of the 20
contravention. 21
Maximum penalty--40 penalty units. 22
(3) The organisation is taken to become aware of the happening of the 23
contravention if an officer of the organisation becomes aware of it. 24
s 594 366 s 596
Industrial Relations
Division 3--Exemptions from requirement that electoral commission 1
conduct election 2
Subdivision 1--Grant of exemption 3
may apply 4
Who
594.(1) An organisation or branch may apply to the registrar for an 5
exemption from the requirement that the electoral commission conduct-- 6
(a) elections for the organisation or branch; or 7
(b) an election for a particular office in the organisation or branch.160 8
(2) For this section, if an organisation's rules require an office to be filled 9
by an election by the members, or by some of the members, of 1 branch of 10
the organisation, an election to fill the office is taken to be an election for the 11
branch. 12
for application 13
Requirements
595.(1) An application may be made only if the management committee 14
of the organisation or branch has-- 15
(a) resolved to make the application; and 16
(b) notified the members of the organisation or branch, in the way 17
prescribed under a regulation, of the making of the resolution. 18
(2) The application must be accompanied by an affidavit by a member of 19
the management committee stating subsection (1) has been complied with. 20
of application 21
Publication
596. The registrar must publish, in the way prescribed under a regulation, 22
a notice stating details of the application. 23
160 For the requirement, see section 483 (Electoral commission to conduct
elections).
s 597 367 s 599
Industrial Relations
application 1
Hearing
597. The registrar may grant the exemption only if satisfied as follows-- 2
(a) the rules of the organisation or branch comply with part 4; 3
(b) if the exemption is granted, for each election to which the 4
exemption applies-- 5
(i) the organisation's rules and the obligations under 6
subdivision 2 and part 7 will be complied with; and 7
(ii) the election will be conducted in a way that gives the 8
organisation's members who have the right to vote in the 9
election an adequate opportunity of voting without 10
intimidation; 11
(c) subdivision 2 and part 7 have been complied with for any 12
previous exemption granted to the organisation or branch under 13
this subdivision;161 14
(d) the IO Act, sections 51 and 52, have been complied with for any 15
previous exemption granted under the IO Act, section 50,162 to 16
the organisation or branch for which the exemption is sought. 17
2--Obligations if exemption granted 18
Subdivision
of sdiv 2 19
Application
598. This subdivision applies to an organisation or branch for each 20
election for which an exemption under subdivision 1 is granted. 21
to appoint returning officer 22
Obligation
599.(1) Before calling nominations for the election, the organisation or 23
branch must-- 24
(a) appoint a returning officer to conduct the election; and 25
161 Parts 4 (Election rules) and 7 (Conduct of elections)
162 Sections 50 (Commission may give exemption), 51 (Duties of organisation if
exemption given) and 52 (Election result report) of the IO Act
s 600 368 s 601
Industrial Relations
(b) give the registrar-- 1
(i) notice of the returning officer's name; and 2
(ii) a statutory declaration sworn by the returning officer stating 3
the returning officer is not an employee, member or officer 4
of the organisation or a branch of the organisation; and 5
(c) obtain the registrar's written approval of the returning officer's 6
appointment. 7
Maximum penalty--40 penalty units. 8
(2) An employee, member or officer of the organisation or branch must 9
not be appointed as the returning officer. 10
result report 11
Election
600. Within 14 days of the declaration of the result of the election, the 12
returning officer for the election must give the registrar a written election 13
result report for the election stating the particulars prescribed under a 14
regulation. 15
Maximum penalty--40 penalty units. 16
records must be preserved 17
Ballot
601. The following persons must take reasonable steps to ensure all 18
ballot records given to them for the election are kept for 1 year after the 19
declaration of the result of the election-- 20
(a) the returning officer for the election; 21
(b) the organisation or branch for which the election is held; 22
(c) an officer of the organisation or branch who performs a function 23
for ballot records for the election. 24
Maximum penalty--40 penalty units. 25
s 602 369 s 602
Industrial Relations
Division 4--Cancellation of exemptions 1
grounds 2
Cancellation
602.(1) An exemption under this part may be cancelled by the registrar 3
only-- 4
(a) if the holder of the exemption asks for its cancellation; or 5
(b) on a ground mentioned in subsection (2). 6
(2) The grounds are as follows-- 7
(a) for an exemption under section 580-- 8
(i) the organisation no longer has a counterpart federal body; or 9
(ii) the making of an order mentioned in section 581(1)(b); 10
(b) for an exemption under section 582 from keeping an officers 11
register, the holder has contravened section 584; 12
(c) the happening of a contravention or an event for which the holder 13
must, under division 1 or 2, notify the registrar; 14
(d) for an exemption under section 591, the registrar is no longer 15
satisfied under section 591(1); 16
(e) for an exemption under section 597-- 17
(i) the registrar is no longer satisfied under section 597; or 18
(ii) there has been a contravention of part 7 or division 3, 19
subdivision 2 for an election for which the exemption was 20
granted; or 21
(iii) the required number of members of the holder ask for the 22
cancellation.163 23
163 Sections 580 (Exemption if federal election held), 581 (Obligation to notify
change in federal election result), 582 (Exemption), 584 (Obligation to file copy
of federal officers register), 591 (Grant of exemption), 597 (Hearing application)
and part 7 (Conduct of elections)
s 603 370 s 605
Industrial Relations
to cancellation for federal election exemption 1
Alternatives
603.(1) This section applies if the registrar considers an exemption under 2
section 580 may be cancelled because an order mentioned in 3
section 581(1)(b) has been made. 4
(2) The registrar may-- 5
(a) amend the exemption instead of cancelling it; or 6
(b) cancel it, but grant another exemption instead to reflect the terms 7
of the order. 8
PART 14--VALIDATIONS 9
Division 1--Preliminary 10
for pt 14 11
Definitions
604. In this part-- 12
"act" includes decision. 13
"collective body" of an organisation means-- 14
(a) its management committee; or 15
(b) a conference, council, committee, panel or other body of, or 16
within the organisation. 17
"invalidity" includes defect. 18
"organisation" includes a branch of an organisation. 19
Division 2--Validations 20
on validations if substantial injustice 21
Limitation
605.(1) This division operates to validate an act or event only if the 22
operation does not or will not cause substantial injustice to-- 23
s 606 371 s 606
Industrial Relations
(a) the organisation to which the act or event applies or concerns; or 1
(b) a member or creditor of the organisation; or 2
(c) a person dealing with, or who has dealt with, the organisation. 3
(2) However, subsection (1) does not apply to sections 607 to 609. 4
of certain acts done in good faith 5
Validation
606.(1) This section applies to an act done in good faith by an 6
organisation, a collective body or officer of an organisation or a purported 7
collective body or officer of an organisation. 8
(2) The act is not invalid only because-- 9
(a) of an invalidity discovered later in-- 10
(i) the election or appointment of a collective body or officer of 11
the organisation; or 12
(ii) the organisation's rules; or 13
(iii) making, amending or repealing a rule of the organisation; or 14
(b) an absence of quorum or other procedural irregularity; or 15
(c) the organisation has a counterpart federal body. 16
(3) In this section-- 17
(a) an act is taken to be done in good faith unless proved otherwise; 18
and 19
(b) a person who has purported to be a member of a collective body 20
is taken to have done so in good faith unless proved otherwise; 21
and 22
(c) knowledge of facts from which an invalidity arose is not by itself 23
knowledge of the invalidity; and 24
(d) an invalidity is taken not to be discovered until known by a 25
majority of the members of the management committee of the 26
organisation. 27
(4) This section-- 28
(a) does not affect the operation of part 7 or an election inquiry under 29
s 607 372 s 609
Industrial Relations
part 8;164 and 1
(b) does not validate an expulsion, suspension, fine or penalty for a 2
member of the organisation if that act would not have been valid 3
had this section not been enacted; and 4
(c) applies to an action done-- 5
(i) before or after this section commences; or 6
(ii) concerning an association that became an organisation after 7
the act was done. 8
acts by person purporting to act in an office 9
Certain
607.(1) This section applies if a person-- 10
(a) was apparently elected to an office in an election; and 11
(b) the person has purported to act in the office since the election; and 12
(c) the commission declares the person's election void. 13
(2) The person's acts while purporting to act in the office that could have 14
been validly done if the person were properly elected, are valid. 15
not invalid because of compliance with order 16
Election
608. An election or a step in an election conducted under a commission 17
order is valid despite a contravention of the rules of an organisation or 18
branch for which the election or step was conducted. 19
not invalid because of contravention of pt 13, div 3, sdiv 2 20
Election
609. If an exemption under part 13, division 3 applies to an election, a 21
contravention of part 13, division 3, subdivision 2 does not invalidate the 22
election.165 23
164 Parts 7 (Conduct of elections) and 8 (Election inquiries)
165 Part 13 (Exemptions), division 3 (Exemptions from requirements that electoral
commission conduct election), subdivision 2 (Obligations if exemption granted)
s 610 373 s 611
Industrial Relations
of certain events after 4 years 1
Validation
610.(1) This section applies to an event as follows 4 years after the event 2
happens-- 3
(a) the election or appointment, or purported election or appointment, 4
to an office in an organisation; 5
(b) a making or amendment, or purported making or amendment, of 6
a rule of an organisation. 7
(2) The event is taken to have been done under the organisation's rules. 8
(3) However, this section does not affect a decision by the court or 9
another court, the commission or the registrar made about the event before 10
the 4 years ends. 11
(4) This section applies to an event happening-- 12
(a) before or after this section commences; or 13
(b) to an association before it became an organisation. 14
(5) In this section-- 15
"decision" includes a decree, sentence, verdict and a similar act. 16
federal body not a ground for challenge 17
Counterpart
611.(1) In proceedings, the validity of the following about an 18
organisation can not be challenged or in any way affected only because of a 19
ground mentioned in subsection (2)-- 20
(a) the organisation's existence or registration; 21
(b) the election of an officer of the organisation; 22
(c) a rule of the organisation; 23
(d) a decision made by or about the organisation; 24
(e) the operation of a rule or a decision mentioned in paragraph (c) 25
or (d). 26
(2) The grounds are as follows-- 27
(a) the organisation has a counterpart federal body; 28
(b) a person is a member of the organisation and its counterpart 29
s 612 374 s 612
Industrial Relations
federal body and the organisation did not receive a separate 1
membership application or fee from the member; 2
(c) the organisation has the same, or substantially the same, rules as 3
its counterpart federal body; 4
(d) the organisation did not keep separate members or officers 5
registers or accounting or other records from its counterpart 6
federal body. 7
and withdrawals 8
Amalgamations
612.(1) This section applies if no proceedings have been taken to 9
challenge-- 10
(a) an amalgamation, within 6 months after the amalgamation day for 11
the amalgamation; or 12
(b) a withdrawal, within 6 months after the withdrawal day for a 13
withdrawal. 14
(2) The following are taken to be, and to have always been, valid-- 15
(a) the amalgamation or withdrawal; 16
(b) anything else done or purporting to have been done-- 17
(i) concerning the amalgamation or withdrawal; or 18
(ii) on which the validity of the amalgamation or withdrawal 19
depends. 20
(3) Subsection (2) has effect despite an order of the court, another court 21
or tribunal, the commission or the registrar made before the end of the 22
6 months. 23
(4) In this section-- 24
"amalgamation" includes a purported amalgamation and anything done or 25
purporting to have been done under part 15 to give effect to an 26
amalgamation or purported amalgamation. 27
"withdrawal" includes a purported withdrawal and anything done or 28
purporting to have been done under part 15 to give effect to a 29
withdrawal or purported withdrawal. 30
s 613 375 s 615
Industrial Relations
3--Orders about invalidity or its effects 1
Division
may decide 2
Commission
613.(1) The commission may, on application, decide whether an 3
invalidity has happened in-- 4
(a) the management or administration of an organisation's affairs; or 5
(b) the election or appointment of an officer of an organisation; or 6
(c) the making, amending or repealing of a rule of an organisation. 7
(2) In deciding the application, the commission may declare whether or 8
not an invalidity has happened. 9
may apply 10
Who
614. The application may be made only by-- 11
(a) the organisation; or 12
(b) a member of the organisation; or 13
(c) another person the commission considers has a sufficient interest 14
in the subject matter of the application. 15
about effects of invalidity 16
Orders
615.(1) This section applies if, on the hearing of the application, the 17
commission declares an invalidity has happened. 18
(2) The commission may make an order it considers appropriate to-- 19
(a) remedy the invalidity or to cause it to be remedied; or 20
(b) change or prevent, or cause to change or prevent, the effects of the 21
invalidity; or 22
(c) validate an act, matter or thing made invalid by or because of the 23
invalidity. 24
(3) The commission may also make another order consequential to an 25
order under subsection (2). 26
(4) The commission must not make an order under this section if the 27
s 616 376 s 616
Industrial Relations
order would cause substantial injustice to-- 1
(a) the organisation that the invalidity concerns; or 2
(b) a member or creditor of the organisation; or 3
(c) a person dealing with or who has dealt with the organisation. 4
ART 15--AMALGAMATIONS AND 5
P
WITHDRAWALS 6
Division 1--Preliminary 7
for pt 15 8
Definitions
616. In this part-- 9
"amalgamated organisation" means an organisation amalgamated under 10
division 2 or the IO Act, part 9.166 11
"amalgamation ballot" means a ballot for a proposed amalgamation under 12
division 2. 13
"amalgamation day", for an amalgamation or proposed amalgamation, 14
means the day the amalgamation takes effect or is to take effect. 15
"constituent part", for an amalgamated organisation, means a part of the 16
membership of the amalgamated organisation that would have been 17
eligible for membership of an organisation deregistered for the 18
formation of the amalgamated organisation had the deregistration not 19
happened. 20
"existing organisation" means an organisation concerned in a proposed 21
amalgamation. 22
"newly registered organisation" means an organisation registered under 23
section 625. 24
166 Part 9 (Amalgamating industrial organisations) of the IO Act
s 617 377 s 619
Industrial Relations
"proposed amalgamated organisation", for a proposed amalgamation, 1
means the existing organisation or proposed organisation that 2
members of the proposed deregistering organisations propose to 3
become members of under division 2. 4
"proposed deregistering organisation", for a proposed amalgamation, 5
means an organisation that is, under division 2, to be deregistered as 6
part of the amalgamation. 7
"withdrawal ballot" means a ballot for a proposed withdrawal. 8
"withdrawal day", for a withdrawal or proposed withdrawal, means the 9
day the withdrawal is to take effect. 10
2--Amalgamations 11
Division
permitted only under div 2 12
Amalgamation
617. An amalgamation may be carried out only under this division. 13
to approve proposed amalgamation 14
Commission
618. The commission may, by order, approve an amalgamation only if-- 15
(a) the procedure for carrying out an amalgamation prescribed under 16
a regulation has been complied with; and 17
(b) the rules of the proposed amalgamated organisation comply with 18
parts 3 and 4167. 19
regulation-making powers for amalgamations 20
Additional
619. A regulation may provide for the following-- 21
(a) the joint representation of the members of existing organisations 22
for an amalgamation until the amalgamation day for the 23
amalgamation; 24
(b) for an amalgamation ballot by proposed members of the 25
167 Part 3 (General content of rules) and 4 (Election rules)
s 620 378 s 620
Industrial Relations
proposed amalgamated organisation; 1
(c) how an amalgamation ballot must be conducted; 2
(d) that the commission may inquire into any claimed irregularity in 3
an amalgamation ballot and its powers for the inquiry; 4
(e) for when an approved amalgamation takes effect; 5
(f) the effect of an amalgamation on decisions that bound a proposed 6
deregistering organisation for the amalgamation on the 7
amalgamated organisation or its members; 8
(g) substituting the amalgamated organisation for a proposed 9
deregistering organisation for the amalgamation in pending 10
proceedings; 11
(h) any other matter necessary to give effect to an amalgamation. 12
of amalgamation 13
Effect
620.(1) This section applies on the amalgamation day for an 14
amalgamation. 15
(2) If the proposed amalgamated organisation for the amalgamation is 16
not already registered, the registrar must-- 17
(a) enter in the register its name and the amalgamation day; and 18
(b) give it a certificate of registration in the approved form. 19
(3) If the amalgamated organisation was not incorporated before the entry 20
in the register, section 423 applies to the organisation as if the commission 21
had granted a registration application under part 2 on the amalgamation day. 22
(4) Despite part 6, a proposed amendment of the rules of an existing 23
organisation for the amalgamation takes effect. 24
(5) If there is a proposed deregistering organisation for the 25
amalgamation-- 26
(a) sections 648 to 650 and 653 apply to the organisation as if a 27
deregistration order had been made for it; and 28
(b) its property and liabilities vest in the amalgamated organisation; 29
and 30
s 621 379 s 621
Industrial Relations
(c) its members become members of the amalgamated organisation, 1
without requirement to pay an entrance fee. 2
(6) The amalgamated organisation must take all necessary steps to give 3
effect to the amalgamation.168 4
office after amalgamation 5
Holding
621.(1) This section applies to the rules of an amalgamated organisation 6
or proposed amalgamated organisation if the organisation is not a 7
corporation. 8
(2) Despite parts 3 and 4, the rules may allow an officer (an "existing 9
officer") of a proposed deregistering organisation or existing organisation 10
who holds office immediately before the amalgamation day for the 11
amalgamation to be an officer of the proposed amalgamated organisation. 12
(3) However, the rules must not allow the existing officer to hold office 13
in the amalgamated organisation without an ordinary election for more than 14
the longer of-- 15
(a) the existing officer's unexpired term immediately before the 16
amalgamation day; or 17
(b) 2 years from the amalgamation day. 18
(4) The rules must make reasonable provision for synchronising the 19
election with elections for other offices in the organisation. 20
(5) Section 433 applies to an office in an amalgamated organisation held 21
by an existing officer of a deregistered organisation for the amalgamation. 22
(6) Section 436 does not apply to an office in an amalgamated 23
organisation held by an existing officer.169 24
168 Part 6 (Amendment of rules)
Sections 423 (Incorporation on registration if not already incorporated), 648
(Application and purpose of div 4), 649 (When deregistration takes effect), 650
(Effect on corporate status) and 653 (Effect on certain instruments)
169 Parts 3 (Content of rules) and 4 (Election rules)
Sections 433 (Filling casual vacancies) and 436 (Maximum office term for
organisation that is not a corporation)
s 622 380 s 624
Industrial Relations
Division 3--Withdrawing from amalgamation 1
for withdrawal 2
Requirements
622. A constituent part may withdraw from an amalgamated organisation 3
only if-- 4
(a) the constituent part became part of the organisation because of an 5
amalgamation under this division or the IO Act, part 9;170 and 6
(b) the amalgamation happened not more than 2 years before the 7
proposed withdrawal; and 8
(c) the withdrawal is carried out under this division. 9
to approve proposed withdrawal 10
Commission
623. The commission may, by order, approve a withdrawal only if-- 11
(a) the procedure for carrying out a withdrawal prescribed under a 12
regulation has been complied with; and 13
(b) the rules of the constituent part of a proposed organisation comply 14
with parts 3 and 4. 15
regulation-making powers for withdrawals 16
Additional
624. A regulation may provide for the following-- 17
(a) a proposed withdrawal to be submitted to a ballot of members of 18
the constituent part seeking the withdrawal; 19
(b) how a ballot must be conducted; 20
(c) that the commission may inquire into any claimed irregularity in a 21
withdrawal ballot and its powers for the inquiry; 22
(d) for when an approved withdrawal takes effect; 23
(e) the appointment of officers of an amalgamated organisation as 24
officers of a newly registered organisation, and the results of the 25
170 Part 9 (Amalgamating industrial organisations) of the IO Act
s 625 381 s 627
Industrial Relations
appointments; 1
(f) any other matter necessary to give effect to a withdrawal. 2
of constituent part on withdrawal 3
Registration
625.(1) On the withdrawal day for a withdrawal the registrar must-- 4
(a) enter in the register the withdrawal and the constituent part's name 5
as an organisation; and 6
(b) give the organisation a certificate of registration in the approved 7
form. 8
(2) Section 423 171 applies to the organisation as if the commission had 9
granted an application for its registration under part 2 on the withdrawal day. 10
of constituent part may join newly registered organisation 11
Members
626.(1) This section applies to a person who is a member of the 12
amalgamated organisation from which a constituent part withdrew to form a 13
newly registered organisation. 14
(2) The person may, if the person is eligible for membership, become a 15
member of the newly registered organisation without paying an entrance 16
fee. 17
4--Offences about amalgamation or withdrawal ballots 18
Division
conduct of ballot 19
Obstructing
627. A person must not obstruct another person conducting an 20
amalgamation or withdrawal ballot. 21
Maximum penalty--40 penalty units. 22
171 Section 423 (Incorporation on registration if not already incorporated)
s 628 382 s 629
Industrial Relations
about ballots 1
Offences
628. A person must not, without lawful authority or excuse, do any of 2
the following about an amalgamation or withdrawal ballot-- 3
(a) obtain or possess a ballot paper if the person does not have the 4
right to obtain or possess it; 5
(b) pretend to be and vote as someone else; 6
(c) amend, deface, destroy, interfere with, or remove a ballot record; 7
(d) vote in the ballot if the person does not have the right to vote; 8
(e) vote more than once; 9
(f) forge a ballot record; 10
(g) utter a ballot record knowing it to be forged; 11
(h) give a ballot record to someone else; 12
(i) put a ballot record in a ballot box or other container used for the 13
ballot (a "ballot box") if the person does not have the right to 14
vote; 15
(j) deliver or post a ballot record to another person performing 16
functions for the ballot if the person does not have the right to 17
deliver or post it; 18
(k) destroy, interfere with, open, or remove a ballot box. 19
Maximum penalty--80 penalty units. 20
another to induce vote or omission to vote 21
Disadvantaging
629.(1) A person must not cause, inflict or procure a disadvantage to 22
anyone or anything because of, or to induce-- 23
(a) a vote or omission to vote in an amalgamation or withdrawal 24
ballot (a "ballot"); or 25
(b) a promise of a vote or omission to vote in a ballot. 26
Maximum penalty--80 penalty units. 27
(2) In this section-- 28
"cause" a disadvantage includes offering, suggesting and threatening a 29
s 630 383 s 632
Industrial Relations
disadvantage. 1
"disadvantage" includes damage, detriment, injury, loss, punishment and 2
violence. 3
access to ballot paper 4
Unauthorised
630. A person must not, without lawful authority or excuse-- 5
(a) ask, require or induce another person to show to or permit the 6
person to see a ballot paper for an amalgamation or withdrawal 7
ballot so the person can see the vote recorded in the ballot paper-- 8
(i) while the paper is being marked; or 9
(ii) after it has been marked; or 10
(b) if the person is performing functions for an amalgamation or 11
withdrawal ballot--show to or permit anyone else access to a 12
ballot paper used in the ballot, other than to perform the functions. 13
Maximum penalty--80 penalty units. 14
5--Miscellaneous 15
Division
resources for proposed amalgamation 16
Using
631.(1) An existing organisation for a proposed amalgamation may use 17
its financial and other resources to support the proposed amalgamation if-- 18
(a) its management committee has resolved to do so; and 19
(b) the committee has given reasonable notice of its resolution to the 20
organisation's members. 21
(2) Subsection (1) does not limit an existing organisation's other powers 22
to use its financial and other resources for the proposed amalgamation. 23
of ballot conducted by electoral commission 24
Costs
632. The costs of an amalgamation or withdrawal ballot conducted by the 25
electoral commission under this part are payable by the State. 26
s 633 384 s 635
Industrial Relations
action for defamation in certain cases 1
No
633. A civil proceeding for defamation does not lie against the following 2
for printing or publishing a document for an amalgamation or withdrawal 3
ballot-- 4
(a) the State; 5
(b) an electoral commission; 6
(c) an electoral officer; 7
(d) another person who may, under this chapter, conduct the ballot; 8
(e) a person asked to act for, or at the direction of, a person 9
mentioned in paragraphs (a) to (d). 10
may resolve difficulties 11
Commission
634.(1) A person with sufficient interest may apply to the commission 12
for an order-- 13
(a) if a difficulty arises, or is likely to arise, in carrying out or giving 14
effect to an amalgamation or withdrawal or in applying this part to 15
another matter; or 16
(b) for the taking of a step necessary to give effect to the 17
amalgamation or withdrawal. 18
(2) The commission may make an order it considers appropriate to 19
resolve the difficulty or to give effect to a step necessary for the 20
amalgamation or withdrawal. 21
(3) The order has effect despite the rules of an organisation. 22
of property transferred under pt 15 23
Registration
635.(1) This section applies if-- 24
(a) property becomes the property of an amalgamated organisation (a 25
"transferee") because of an amalgamation; or 26
(b) property of an amalgamated organisation becomes the property of 27
a newly registered organisation (also a "transferee") because of a 28
withdrawal. 29
s 635 385 s 635
Industrial Relations
(2) A certificate by an authorised person for a transferee is evidence of 1
the property having become the transferee's property if the certificate-- 2
(a) is signed by the person; and 3
(b) identifies the property; and 4
(c) states the property has, under this part, become the transferee's 5
property. 6
(3) If the certificate is given to a person with registration functions for 7
that kind of property under a law of the State, the person must do the 8
following as if the certificate were an appropriate instrument of transfer of 9
the property-- 10
(a) register the matter in the same way as transactions for property of 11
that kind; 12
(b) deal with, and give effect to, the certificate. 13
14
Examples of `a person with registration functions'--
15
· the Registrar of Titles
16
· the Australian Securities and Investment Commission.
(4) Subsection (3) applies despite the Corporations Law, section 268 or 17
the Corporations Law, chapter 7, part 7.13.172 18
(5) A transfer of the property to the transferee may be registered or given 19
effect to under the law of another State if-- 20
(a) the certificate is given to a person with functions for registration 21
of property of that kind under the other State's law; and 22
(b) the person is permitted by law to do so. 23
(6) In this section-- 24
"authorised person", for an amalgamated organisation or a newly 25
registered organisation, means its secretary or a person with its 26
management committee's written authority. 27
172 Section 268 (Assignment and variation of charges) and chapter 7, part 7.13 (Title
to, and transfer of, securities) of the Corporations Law
s 636 386 s 637
Industrial Relations
applies despite laws or instruments 1
Part
636.(1) This part applies despite another Act or an instrument. 2
(2) Nothing done under this part-- 3
(a) makes an organisation or other person liable for a civil wrong or a 4
contravention of a law or for a breach of a confidence or contract; 5
or 6
7
Example of a `contract'--
8
A contractual provision that prohibits, restricts or regulates assigning or
9
transferring an asset or liability or disclosing information.
(b) releases a surety's obligations, wholly or in part. 10
(3) If apart from this section a person's consent would be necessary to 11
give effect to this part, the consent is taken to have been given. 12
(4) In this section-- 13
"instrument" means any written or oral instrument, express or implied. 14
15
Examples of an `instrument'--
16
· a contract, deed, undertaking or agreement
17
· a mandate, instruction, notice, authority or order
18
· a lease, licence, transfer, conveyance or other assurance
19
· a guarantee, bond, power of attorney, bill of lading, negotiable instrument or
20
order to pay an amount
21
· a mortgage, lien or security.
PART 16--DEREGISTRATION 22
Division 1--Preliminary 23
for pt 16 24
Definitions
637. In this part-- 25
"deregistration order" see section 638. 26
s 638 387 s 638
Industrial Relations
"industrial conduct ground" means a ground mentioned in section 638(a) 1
to (c). 2
"members" of an organisation means-- 3
(a) a substantial number of the organisation's members; or 4
(b) a section or class of its members. 5
"small organisation" means-- 6
(a) an employee organisation that has less than 20 members who are 7
employees; or 8
(b) an employer organisation whose employer members have, in 9
total, employed a monthly average of less than 20 employees 10
during any 6 month period. 11
2--General deregistration provisions 12
Division
1--Bringing deregistration proceedings 13
Subdivision
deregistration grounds 14
General
638. The full bench may order the deregistration of an organisation (a 15
"deregistration order") on any of the following grounds-- 16
(a) achieving the objects of the Act has been prevented by-- 17
(i) the organisation's or its members' continued contravention 18
of a commission order or an industrial instrument (an 19
"instrument"); or 20
(ii) the organisation's continued failure to ensure its members do 21
not contravene an instrument; or 22
(iii) any other conduct by the organisation or its members; 23
(b) the organisation or its members are engaging in industrial action 24
that has prevented or interfered with-- 25
(i) trade or commerce; or 26
(ii) providing a public service; 27
s 639 388 s 639
Industrial Relations
(c) the organisation or its members have been, or are, engaging in 1
industrial action that has, is having, or is likely to have a 2
substantial adverse effect on the safety, health or welfare of the 3
community or a part of the community; 4
(d) the organisation was registered by mistake; 5
(e) the organisation's rules-- 6
(i) do not allow a person who is eligible to become a member 7
of the organisation to join it with reasonable ease; or 8
(ii) impose unreasonable conditions on a person's continuing 9
membership of the organisation; or 10
(iii) are harsh or oppressive; or 11
(iv) provide for it to end on the happening of an event and the 12
event has happened; 13
(f) the administration of the organisation's rules is harsh or 14
oppressive; 15
(g) a majority of the organisation's members have agreed to its 16
deregistration; 17
(h) if the organisation is an employee organisation, it is not free from 18
control by, or improper influence from an employer or an 19
employer association or organisation. 20
may bring deregistration proceedings 21
Who
639.(1) Each of the following may apply to the full bench for a 22
deregistration order on a ground mentioned in section 638-- 23
(a) an organisation; 24
(b) the Minister; 25
(c) the registrar; 26
(d) another person given leave by the full bench. 27
(2) The full bench may give leave only if it considers the person has 28
sufficient interest to make the application. 29
(3) The full bench may, of its own initiative, bring proceedings for a 30
s 640 389 s 641
Industrial Relations
deregistration order-- 1
(a) on a ground mentioned in section 638(d) or (e)(iv); or 2
(b) because the organisation has failed to comply with a demarcation 3
dispute undertaking and amendment of its eligibility rules is 4
inappropriate. 5
(4) The registrar may also apply for a deregistration order on the ground 6
that the organisation is defunct. 7
Subdivision 2--Deciding deregistration proceedings 8
on ground other than industrial conduct 9
Hearing
640. If a ground on which the proceedings are based includes a ground 10
other than an industrial conduct ground, the full bench may make a 11
deregistration order if satisfied the ground has been made out. 12
on industrial conduct ground 13
Hearing
641.(1) This section applies if at the hearing of the application a ground 14
on which the proceedings are based is an industrial conduct ground. 15
(2) The full bench must make a deregistration order if it-- 16
(a) finds the ground has been made out; and 17
(b) does not consider the deregistration unjust, after considering-- 18
(i) the significance of the circumstances forming the ground; 19
and 20
(ii) the action taken by or against the organisation about the 21
ground. 22
(3) However, if the full bench finds the industrial conduct ground is 23
made out wholly or mainly because of conduct by a section or class of the 24
organisation's membership, it may instead of making a deregistration 25
order-- 26
(a) order amendments the organisation's eligibility rules to exclude 27
persons from the section or class from membership eligibility; or 28
s 642 390 s 642
Industrial Relations
(b) exclude a stated person from the organisation's membership. 1
(4) A deregistration order may also prohibit the deregistered organisation 2
from applying for registration before a stated day. 3
of deregistration for industrial conduct 4
Deferral
642.(1) This section applies if the full bench may make a deregistration 5
order under section 641. 6
(2) The full bench may defer its decision on making the deregistration 7
order and make an order (a "deferral order")-- 8
(a) suspending to a stated extent, the rights, privileges or capacities of 9
the organisation or all or any of its members as members, 10
under-- 11
(i) this Act; or 12
(ii) a commission order; or 13
(iii) an award, certified agreement, EFA or industrial agreement; 14
or 15
(b) directing how a suspended right, privilege or capacity may be 16
exercised; or 17
(c) restricting the organisation or its branches in using their funds or 18
property and controlling the funds or property to enforce the 19
restriction. 20
(3) If a deferral order is made, the full bench must defer its decision on 21
making the deregistration order until-- 22
(a) if a party to the proceedings applies--the court considers it is just 23
to make the decision considering-- 24
(i) evidence given about compliance with the order; and 25
(ii) other relevant circumstances; or 26
(b) the order ends. 27
(4) A deferral order has effect despite the rules of the organisation or its 28
branches. 29
s 643 391 s 646
Industrial Relations
deferral order ends 1
When
643.(1) A deferral order ends-- 2
(a) 6 months after it takes effect, if the full bench has not extended the 3
order before that time; or 4
(b) if the full bench has extended the order--at the end of the 5
extension; or 6
(c) if it is discharged by the full bench. 7
(2) The full bench may discharge or extend a deferral order only on the 8
application of a party to the deregistration proceedings. 9
(3) An extension application may only be made before the time 10
mentioned in subsection (1)(a). 11
orders or directions 12
Incidental
644. If the full bench makes a deregistration order, it may also make-- 13
(a) an order or direction it considers appropriate to give effect to the 14
deregistration; or 15
(b) an order under section 652(2),173 whether or not anyone has 16
applied for the order. 17
Division 3--Small organisations 18
may review 19
Commission
645. The commission may review an organisation to inquire whether the 20
organisation is or may be a small organisation. 21
proceedings by commission 22
Deregistration
646.(1) If the commission considers an organisation is or may be a small 23
organisation, it may bring deregistration proceedings under this division 24
against the organisation. 25
173 Section 652 (Effect on property)
s 647 392 s 650
Industrial Relations
(2) However, the commission must not bring proceedings under this 1
division more than once a year against the same organisation. 2
proceedings 3
Deciding
647.(1) The commission must make a deregistration order if satisfied the 4
organisation is a small organisation. 5
(2) However, the commission may decide not to make the order if 6
satisfied there are special circumstances and the organisation's continued 7
registration is in the public interest. 8
9
Example of `special circumstances'--
10
The organisation is an employee organisation and the commission is satisfied the
11
organisation will in the near future, if its registration is continued, have more
12
than 20 members who are employees.
Division 4--Effects of deregistration 13
and purpose of div 4 14
Application
648.(1) This division applies on the making of a deregistration order. 15
(2) This division provides for the effects of the order on the deregistered 16
organisation under the order and on other persons. 17
deregistration takes effect 18
When
649.(1) The deregistered organisation ceases to be an organisation when 19
the deregistration order is made. 20
(2) The registrar must record the deregistration and date of the order in 21
the register. 22
on corporate status 23
Effect
650.(1) If the deregistered organisation was a corporation under another 24
law, the deregistered organisation continues to be incorporated, but only 25
under the other law. 26
s 651 393 s 652
Industrial Relations
(2) If the deregistered organisation was incorporated only because of its 1
registration-- 2
(a) it ceases to be incorporated and becomes an association; and 3
(b) its name is taken to be changed to omit the words required to be 4
included in its registered name under section 424(2);174 and 5
(c) its rules continue in force to the extent they can still be carried out 6
or complied with. 7
release of liabilities 8
No
651. The deregistration does not act to satisfy a liability or penalty 9
incurred by the deregistered organisation or any of its members before the 10
deregistration. 11
on property 12
Effect
652.(1) If the deregistered organisation was incorporated only because of 13
its registration, property owned by it immediately before the deregistration 14
must be-- 15
(a) held and used under its rules, to the extent they can still be carried 16
out or complied with; and 17
(b) applied for the purposes of the deregistered organisation under its 18
rules. 19
(2) Despite subsection (1), the full bench may, if an interested person 20
applies, make an order it considers appropriate to satisfy the deregistered 21
organisation's liabilities from the property. 22
(3) In this section-- 23
"rules" of the deregistered organisation means its rules in force 24
immediately before its deregistration. 25
174 Section 424 (Registered name of organisation that is not a corporation)
s 653 394 s 654
Industrial Relations
on certain instruments 1
Effect
653.(1) If an award, EFA, commission order, certified agreement or 2
industrial agreement (the "instrument") bound the deregistered 3
organisation and its members before the deregistration-- 4
(a) from the deregistration, the deregistered organisation and its 5
members do not have the right to a benefit under the instrument; 6
and 7
(b) the instrument ceases to have any effect for the deregistered 8
organisation 21 days after the deregistration. 9
(2) Despite subsection (1)(b), the commission may make an order it 10
considers appropriate about the effect, if any, of the instrument on the 11
deregistered organisation and its members. 12
ART 17--MISCELLANEOUS 13
P
to be given before making decision 14
Hearing
654.(1) The court, commission or registrar (the "industrial tribunal") 15
must, before making a decision under this chapter, give the following 16
persons an opportunity to be heard about whether the decision should be 17
made-- 18
(a) a person who applied for the decision or from whose application 19
the decision is proposed to be made; 20
(b) a person in relation to whom the decision is sought or may be 21
made; 22
(c) a person who may object to the making of the decision who has 23
objected in the way required under this chapter; 24
(d) an organisation the decision concerns; 25
(e) any other person the industrial tribunal considers should be heard 26
or who has a sufficient interest in the making of the decision. 27
(2) However, subsection (1) does not apply if the person asks the 28
industrial tribunal to make a stated decision and it considers the decision 29
s 655 395 s 655
Industrial Relations
may be made without prejudicing the rights of a person or for other 1
sufficient reason. 2
(3) A regulation may provide for-- 3
(a) objections to the making of a decision under this chapter; or 4
(b) the way in which the opportunity to be heard must be given. 5
(4) In this section-- 6
"decision" includes-- 7
(a) an amendment of a rule of an organisation, other than a correction 8
of a formal or clerical error; and 9
(b) a referral. 10
of registrar's decisions 11
Notice
655.(1) This section applies if the registrar makes a decision as follows-- 12
(a) to refuse an application made to the registrar under this chapter; 13
(b) under section 450 to cancel an approval under section 449 or 14
cancel or to amend an exemption under part 13 if the holder of the 15
approval or exemption has not asked for the cancellation or 16
amendment; 17
(c) under section 461(3) or 512(3) 175 for an amount of financial help 18
to be given to a person; 19
(d) to amend an organisation's rules under section 467; 20
(e) to refuse, under section 502, to refer an application for an election 21
inquiry to the commission. 22
(2) The registrar must promptly give the applicant, person who held the 23
cancelled exemption, organisation or person to be given financial help, a 24
notice stating the following-- 25
(a) the decision; 26
175 Sections 449 (Grant of approval), 450 (Cancellation of approval), 467 (When
registrar may amend rules), 502 (Referral to commission), 461 (Financial help
for application) and 512 (Financial help for application)
s 656 396 s 658
Industrial Relations
(b) the reasons for the decision; 1
(c) that the person to whom the notice is given may appeal to the full 2
bench against the decision within 21 days; 3
(d) how to start an appeal.176 4
obtaining organisation's property 5
Falsely
656. A person must not obtain possession of an organisation's property 6
by false representation or imposition. 7
Maximum penalty--40 penalty units. 8
applying organisation's property 9
Wrongfully
657. A person in possession of an organisation's property must not-- 10
(a) wilfully withhold it from a person who has the right to possess it; 11
or 12
(b) fraudulently misapply it; or 13
(c) wilfully apply it to a use not authorised under the organisation's 14
rules. 15
Maximum penalty--40 penalty units. 16
tamp duty 17
S
658. Despite any other Act, stamp duty is not payable on-- 18
(a) a certificate executed under, or to give effect to, this chapter; or 19
(b) an instrument that transfers or evidences or relates to the transfer 20
of property-- 21
(i) from trustees of an organisation to the organisation; or 22
(ii) to an organisation because of an amalgamation or 23
withdrawal. 24
176 See sections 342 (Appeal from commission, magistrate or registrar) and 346
(Time limited for appeal)
s 659 397 s 660
Industrial Relations
CHAPTER 13--OFFENCES 1
penalty orders 2
Disobeying
659.(1) A person must obey a penalty order, unless the person has a 3
reasonable excuse. 4
Maximum penalty--the penalty provided for in the order. 5
(2) In this section-- 6
"penalty order" means an order of the court or commission that provides 7
for payment of a penalty if the order is disobeyed. 8
conduct towards member, magistrate or registrar 9
Improper
660.(1) A person must not-- 10
(a) interrupt an industrial tribunal's proceedings; or 11
(b) create, take part in, or continue a disturbance in or near a place 12
where an industrial tribunal's proceedings are being conducted; or 13
(c) wilfully insult an official, including by using insulting language; 14
or 15
(d) by writing or speech, use words intended to-- 16
(i) improperly influence an official; or 17
(ii) improperly influence a witness before an industrial tribunal; 18
or 19
(iii) bring an official or industrial tribunal into disrepute. 20
Maximum penalty--100 penalty units or 1 year's imprisonment. 21
(2) A person who commits an offence under this section before an 22
industrial tribunal may, by the tribunal's order, be excluded from the place 23
where the tribunal is sitting. 24
(3) The making of an order under subsection (2) does not affect the 25
offender's liability to be punished for the offence. 26
(4) A police officer, or a person acting under the industrial tribunal's 27
authority, may enforce the tribunal's order, using necessary reasonable 28
s 661 398 s 662
Industrial Relations
force. 1
(5) In this section-- 2
"industrial tribunal" means the commission, an Industrial Magistrates 3
Court or the registrar. 4
"official" means a member, a magistrate or the registrar exercising 5
jurisdiction or powers or performing functions under this or another 6
Act. 7
by witness 8
Contempt
661.(1) A person must not, without lawful authority or excuse-- 9
(a) if called to appear before an industrial tribunal--disobey the 10
attendance notice requiring the appearance; or 11
(b) if appearing before an industrial tribunal, whether or not in 12
response to an attendance notice-- 13
(i) refuse to be sworn or to make an affirmation or declaration 14
as a witness; or 15
(ii) refuse to answer a question that the person is required by the 16
tribunal to answer; or 17
(iii) refuse to produce records that the person is required by the 18
tribunal to produce. 19
Maximum penalty--40 penalty units. 20
(2) In this section-- 21
"industrial tribunal" means the commission, an Industrial Magistrates 22
Court or the registrar. 23
or misleading statements 24
False
662.(1) A person must not state anything to an official for this Act that 25
the person knows is false or misleading in a material particular. 26
Maximum penalty--40 penalty units. 27
(2) It is enough for a complaint against a person for an offence against 28
subsection (1) to state that the statement made was `false or misleading' to 29
s 663 399 s 663
Industrial Relations
the person's knowledge. 1
(3) A person must not be prosecuted for an offence under this section if 2
the person can be prosecuted for an offence under section 223 or 283.177 3
(4) In this section-- 4
"official" means an inspector or the registrar. 5
or misleading documents 6
False
663.(1) A person must not, for this Act, give an official a document 7
containing information the person knows is false or misleading in a material 8
particular. 9
Maximum penalty--40 penalty units. 10
(2) Subsection (1) does not apply to a person if the person, when giving 11
the document-- 12
(a) informs the official, to the best of the person's ability, how it is 13
false or misleading; and 14
(b) if the person has, or can reasonably obtain, the correct 15
information--gives the correct information. 16
(3) A person must not make an entry in a document required or 17
permitted to be made or kept under this Act knowing the entry to be false or 18
misleading in a material particular. 19
Maximum penalty--40 penalty units. 20
(4) It is enough for a complaint against a person for an offence against 21
subsection (1) or (3) to state that the statement made was `false or 22
misleading' to the person's knowledge. 23
(5) A person must not be prosecuted for an offence under this section if 24
the person can be prosecuted under section 201 or 283.178 25
(6) In this section-- 26
177 Section 223 (Person must not apply duress or make false statements in
connection with QWA etc.) or 283 (Power to enter and inspect)
178 Section 201 (Employer's declaration must be accurate) or 283 (Power to enter
and inspect)
s 664 400 s 665
Industrial Relations
"official" means an inspector, an authorised industrial officer or the 1
registrar. 2
officers 3
Obstructing
664.(1) A person must not-- 4
(a) obstruct an officer exercising a power, or performing a function, 5
under this or another Act; or 6
(b) if lawfully required by an officer to produce or exhibit a 7
document, or to allow a document to be examined--fail to 8
comply with the request, unless the person has a reasonable 9
excuse; or 10
(c) wilfully mislead an officer in a way likely to affect the 11
performance of the officer's function; or 12
(d) if lawfully asked a question for this or another Act by an 13
officer--fail to answer the question truthfully and to the best of 14
the person's knowledge, information and belief. 15
Maximum penalty--40 penalty units. 16
(2) A person must not be prosecuted for an offence under subsection (1) 17
if the person can be prosecuted under section 283.179 18
(3) In this section-- 19
"officer" means an officer of the court or commission. 20
Act's obligations 21
Avoiding
665.(1) An employer, with intent to avoid an obligation under this Act to 22
pay an employee for a public holiday or leave, must not-- 23
(a) dismiss the employee; or 24
(b) if the employee's entitlement to long service leave is worked out 25
under section 47180 --interrupt the employee's continuity of 26
179 Section 283 (Power to enter and inspect)
180 Section 47 (Continuity of service--additional considerations for casual
employees)
s 666 401 s 666
Industrial Relations
service. 1
Maximum penalty--40 penalty units. 2
(2) If the Industrial Magistrates Court finds an employer has contravened 3
subsection (1) in relation to long service leave, it must order the defendant to 4
pay the dismissed employee a proportionate amount of long service leave 5
on the basis of 13 weeks leave for 15 years service. 6
(3) The order is in addition to any order it may make imposing a penalty. 7
(4) In this section-- 8
"dismiss" includes stand-down. 9
"leave" means annual, sick, family or long service leave. 10
"obligation" under this Act includes an obligation under an industrial 11
instrument. 12
of wages 13
Non-payment
666.(1) A person must pay an employee's wages under a relevant 14
industrial instrument or permit-- 15
(a) to the employee; or 16
(b) in accordance with the employee's written direction. 17
Maximum penalty--200 penalty units. 18
(2) An offence under subsection (1) may consist of-- 19
(a) a single failure to pay wages due on a particular day; or 20
(b) a failure to pay wages due over a period of time. 21
(3) The offence starts on the day of the failure and continues until the 22
wages are paid. 23
(4) A complaint or a series of complaints may be made for any period 24
over which the offence continues. 25
(5) However, a complaint may only relate to offences that started within 26
6 years before the complaint is made. 27
(6) A magistrate may hear and decide a complaint for an offence under 28
this section, and in addition to any penalty that the magistrate may impose-- 29
s 667 402 s 668
Industrial Relations
(a) if the magistrate finds the defendant guilty--must order the 1
defendant to pay the employee the amount the magistrate finds to 2
be payable to the employee; or 3
(b) if the magistrate does not find the defendant guilty--may order 4
the defendant to pay the employee the amount the magistrate 5
finds, on the balance of probabilities, to be payable to the 6
employee. 7
(7) A magistrate may make the order-- 8
(a) despite an express or implied provision of an agreement to the 9
contrary; and 10
(b) on the terms the magistrate considers appropriate. 11
reduced wages 12
Accepting
667.(1) An employee must not agree with an employer to accept wages 13
that, to the employee's knowledge, are reduced wages. 14
Maximum penalty--16 penalty units. 15
(2) The return by or for an employee to or for the employer of a part of 16
wages paid under a relevant industrial instrument or permit for work 17
performed by the employee is evidence that the employee has entered into 18
an agreement mentioned in subsection (1). 19
statement about employment on reduced wages 20
Publishing
668.(1) A person must not publish or cause to be published, whether or 21
not for reward, a statement that can be reasonably interpreted to state that a 22
person is ready and willing to-- 23
(a) employ a person on reduced wages; or 24
(b) be employed on reduced wages. 25
Maximum penalty--16 penalty units. 26
(2) Proceedings for an offence under subsection (1) may be commenced 27
against a publisher of the statement only if-- 28
(a) the publisher has been warned by an inspector that the publication 29
of the statement, or of a statement substantially similar, is an 30
s 669 403 s 669
Industrial Relations
offence under this Act; and 1
(b) the publisher has published, or caused the publication of, the 2
statement after receiving the warning; and 3
(c) the Minister's consent to the proceedings is obtained. 4
(3) A proprietor of a newspaper or advertising medium is taken to have 5
published the statement with knowledge of its unlawfulness, unless the 6
proprietor shows that the proprietor-- 7
(a) had taken all reasonable precautions against committing the 8
offence; and 9
(b) had reasonable grounds to believe, and did believe, the publication 10
to be lawful; and 11
(c) had no reason to suspect the publication was unlawful. 12
(4) In this section-- 13
"publish" includes-- 14
(a) exhibit; and 15
(b) broadcast; and 16
(c) publish to a person. 17
"publisher" means-- 18
(a) the printer or proprietor of a newspaper; or 19
(b) the distributor or seller of a newspaper; or 20
(c) the printer, maker, operator or proprietor of an advertising device 21
or advertising medium; or 22
(d) the printer of a document uttered for advertising purposes; or 23
(e) a person acting under the authority of a person mentioned in 24
paragraphs (a) to (d). 25
to offer or accept premiums 26
Offence
669.(1) This section applies subject to the Private Employment Agencies 27
Act 1983. 28
(2) A person must not-- 29
s 670 404 s 670
Industrial Relations
(a) offer an employment premium; or 1
(b) demand an employment premium; or 2
(c) ask for an employment premium; or 3
(d) accept, or agree to accept, an employment premium. 4
Maximum penalty--16 penalty units. 5
(3) If a court finds a person (the "defendant") guilty of accepting an 6
employment premium, it must, in addition to any penalty order it may 7
make, order the defendant to pay an amount, equivalent to the amount or 8
value of the premium, to the person from whom the defendant accepted the 9
premium. 10
(4) In this section-- 11
"employment premium" includes a consideration, gift, allowance or 12
forbearance for the employment of a person. 13
of industrial instruments 14
Contraventions
670.(1) A person must not contravene an industrial instrument. 15
Maximum penalty-- 16
(a) for a first offence-- 17
(i) if the offender is an employer that is a body corporate or an 18
organisation--80 penalty units; or 19
(ii) if the offender is an employer that is not a body 20
corporate--16 penalty units; or 21
(iii) if the offender is an employee--16 penalty units; or 22
(b) for a second or subsequent offence consisting of a contravention 23
of the same provision of the instrument-- 24
(i) if the offender is an employer that is a body corporate or an 25
organisation--100 penalty units; or 26
(ii) if the offender is an employer that is not a body 27
corporate--20 penalty units; or 28
(ii) if the offender is an employee--20 penalty units. 29
s 671 405 s 671
Industrial Relations
(2) For subsection (1), a second or subsequent offence is taken to be a 1
first offence if more than 1 year has passed since the commission of the last 2
similar offence of which the person was found guilty. 3
(3) An employer who pays, directly or by an agent, an employee, and an 4
employee who receives from an employer, or the employer's agent, reduced 5
wages is each taken to have contravened the instrument. 6
(4) If an employee returns to an employer, or the employer's agent, a part 7
of wages paid to the employee under an industrial agreement-- 8
(a) the employee is taken to have received reduced wages; and 9
(b) the employer, or the employer's agent, is taken to have paid 10
reduced wages; 11
unless the return is in discharge, or partial discharge, of a lawful debt or 12
obligation of the employee. 13
restraining contraventions 14
Injunction
671.(1) This section applies if a person has been found guilty of an 15
offence involving the contravention of an industrial instrument or permit or 16
this Act. 17
(2) If satisfied the contravention consisted of the person's wilful action or 18
default, the court, on application made to it, may grant an injunction 19
restraining the person from-- 20
(a) continuing the contravention; or 21
(b) committing further contraventions of the instrument or permit or 22
this Act, whether similar to or different from the contraventions 23
the person has been found guilty of. 24
(3) The person must obey the injunction. 25
Maximum penalty for subsection (3)--200 penalty units. 26
s 672 406 s 673
Industrial Relations
considered parties to offences 1
Persons
672. Without limiting the Criminal Code, section 7,181 an organisation or 2
person who-- 3
(a) takes part in the commission of an offence under this Act; or 4
(b) counsels or procures or aids the commission of an offence under 5
this Act; or 6
(c) encourages the commission of an offence under this Act; or 7
(d) is concerned, directly or indirectly, in the commission of an 8
offence under this Act; 9
is taken to have committed the offence and to be liable to the penalty 10
prescribed for the offence. 11
officers must ensure corporation complies with ss 368, 406 12
Executive
and 666 13
673.(1) If a corporation commits an offence against section 368, 406 14
or 666,182 the executive officers of the corporation-- 15
(a) are also taken to have committed the offence; and 16
(b) are liable to the prescribed penalty and any other order the 17
magistrate may make under the section. 18
(2) It is a defence for an executive officer to prove-- 19
(a) if the officer was in a position to influence the conduct of the 20
corporation in relation to the offence--the officer exercised 21
reasonable diligence to ensure the corporation complied with the 22
section; or 23
(b) the officer was not in a position to influence the conduct of the 24
corporation in relation to the offence. 25
(3) In this section-- 26
181 Criminal Code, section 7 (Offender may be prosecuted under Code or other
statute)
182 Section 368 (Employee register), 406 (Contributing occupational
superannuation) or 666 (Non-payment of wages)
s 674 407 s 677
Industrial Relations
"executive officer" of a corporation means a person who is concerned with, 1
or takes part in, the corporation's management, whether or not-- 2
(a) the person is a director; or 3
(b) the person's position is given the name of executive officer. 4
to commit offence 5
Attempt
674. A person who attempts to commit an offence under this Act-- 6
(a) commits an offence; and 7
(b) is liable to the same penalty as if the offence attempted had been 8
committed. 9
to making false or misleading statements 10
References
675. A reference to a person making a statement knowing that it is false 11
or misleading includes a reference to the person making the statement being 12
reckless about whether the statement is false or misleading. 13
to engaging in conduct 14
References
676. A reference to a person engaging in conduct includes a reference to 15
the person being, directly or indirectly, a party to or concerned in the 16
conduct. 17
CHAPTER 14--LEGAL PROCEEDINGS 18
application of jurisdictional provisions 19
General
677. The provisions of this Act providing for the powers of and 20
procedures before the court, the commission or an Industrial Magistrates 21
Court apply in relation to the jurisdiction of the court, the commission or an 22
Industrial Magistrates Court under this or another Act, unless the contrary 23
intention appears. 24
s 678 408 s 679
Industrial Relations
provisions affecting proceedings 1
Evidentiary
678. In proceedings-- 2
(a) the appointment as inspector of a person claiming to be, or stated 3
to be, an inspector, and the authority of an inspector to take 4
proceedings or do any act, must be presumed, until the contrary is 5
proved; and 6
(b) a signature purporting to be of an inspector is taken as the 7
signature it purports to be, until the contrary is proved; and 8
(c) a document purporting to be a copy of a notice or order issued 9
under this Act by an inspector is admissible as evidence of the 10
issue of the notice or order and of the things in it; and 11
(d) a document purporting to be a copy of an organisation's officers 12
register last filed with the registrar, certified by the registrar, is 13
admissible as evidence of the things in it; and 14
(e) a document purporting to be a copy of an organisation's rules last 15
filed with the registrar, certified by the registrar, is admissible as 16
evidence of the things in it; and 17
(f) the limits of a district or part of the State, or of a road, stated in a 18
complaint or other document made for the proceedings must be 19
presumed, until the contrary is proved; and 20
(g) judicial notice of the existence of industrial action, or of a 21
proposed industrial action, may be taken. 22
material tendered in evidence 23
Confidential
679.(1) Subsection (2) applies if records, tendered to the court or 24
commission, relate to-- 25
(a) a person's trade secrets; or 26
(b) the financial position of a party or witness. 27
(2) The records can not, without the consent of the person, party or 28
witness, be inspected by anyone other than the president, a commissioner or 29
an expert witness. 30
(3) Subsection (2) does not apply to records relating to the financial 31
position of a party or witness who claims that the financial position of a 32
s 679 409 s 679
Industrial Relations
business or industry does not permit the payment of wages, or the granting 1
of conditions-- 2
(a) claimed in the proceedings in which the records are tendered; or 3
(b) under a proposed industrial instrument or order to which the 4
proceedings relate. 5
(4) If the court or commission directs that information relating to a 6
person's trade secrets or financial position be given in evidence, the 7
evidence must be taken in private, if the person asks. 8
(5) The court, commission or registrar may direct-- 9
(a) a report, or part of a report, of proceedings in an industrial cause 10
not be published; or 11
(b) evidence given, records tendered or things exhibited in 12
proceedings for an industrial cause be withheld from release or 13
search. 14
(6) The direction may prohibit the publication, release or search 15
absolutely, or except on conditions ordered by the court, commission or 16
registrar. 17
(7) The direction must be complied with by all persons to whom it is 18
directed. 19
Maximum penalty--16 penalty units. 20
(8) The direction may be given if the court, commission or registrar 21
considers-- 22
(a) disclosure of the matter would not be in the public interest; or 23
(b) persons, other than parties to the cause, do not have a sufficient 24
legitimate interest in being informed of the matter. 25
(9) A person must not give as evidence, or publish, material in 26
contravention of this section or of a direction under this section. 27
Maximum penalty--16 penalty units. 28
(10) In this section-- 29
"expert witness", for records, means a person appointed by the court or 30
commission as an expert to examine the records and to report on them. 31
s 680 410 s 680
Industrial Relations
value of official records 1
Evidentiary
680.(1) The following are admissible in proceedings as evidence of a 2
decision or action-- 3
(a) a copy of the decision, or of a record of other action, of the court 4
or commission, purporting to bear the seal of the court or 5
commission; 6
(b) a copy of, or a document purporting to be an extract from, the 7
industrial gazette purporting to contain notice of a decision or 8
other action of the court or commission. 9
(2) In proceedings-- 10
(a) a copy of, or a document purporting to be an extract from, the 11
industrial gazette purporting to contain notice of-- 12
(i) a declaration of a general ruling published under 13
section 287;183 or 14
(ii) an amendment of an award or certified agreement; 15
is admissible as evidence of the making or approval of the 16
declaration or amendment and, for the period for which the 17
declaration or amendment remains in force, is evidence of the 18
matters in the notice; and 19
(b) a copy of a certified agreement, certified as a true copy by the 20
registrar, is admissible as evidence of-- 21
(i) the agreement; and 22
(ii) its execution as shown in the copy; and 23
(iii) its certification by the commission; and 24
(c) a copy of a QWA, certified as a true copy by the registrar, is 25
admissible as evidence of-- 26
(i) the agreement; and 27
(ii) its execution as shown in the copy; and 28
(iii) its approval by the commission; and 29
183 Section 287 (General rulings)
s 681 411 s 682
Industrial Relations
(d) a copy of a permit issued by the commission or the registrar, 1
certified as a true copy by the registrar, is admissible as evidence 2
of the permit; and 3
(e) a certificate issued by the registrar about an organisation's 4
registration is evidence of the matters in the certificate; and 5
(f) a certificate issued by the registrar that a stated person was, at a 6
stated time-- 7
(i) an authorised industrial officer or another stated officer of a 8
stated organisation; or 9
(ii) a member of a stated organisation; 10
is evidence of the matters. 11
of certain facts by statement 12
Proof
681. In proceedings, a statement in a complaint or other process by 13
which the proceedings are started that-- 14
(a) a calling was, at or about a stated time, transferred from 1 person 15
to another; or 16
(b) a stated person is or is not, or was or was not, at a stated time, an 17
officer or member of an organisation; or 18
(c) a stated person is liable to pay, but has not paid, contribution to 19
the approved superannuation fund; 20
is evidence of the matters stated. 21
value of certificate of trustee of superannuation fund 22
Evidentiary
682.(1) In proceedings, a trustee's certificate stating, for a period of 23
relevant service of an eligible employee concerned in the proceedings-- 24
(a) an amount was paid as contribution to a complying 25
superannuation fund of which the trustee is a trustee; or 26
(b) an amount worked out on the rate of return that stated 27
contributions would have attracted to the fund; 28
is evidence of the matters stated. 29
s 683 412 s 683
Industrial Relations
(2) In this section-- 1
"trustee's certificate" means a certificate given, or purporting to have been 2
given, by a trustee of a complying superannuation fund. 3
proceedings generally 4
Offence
683.(1) Proceedings for an offence under this Act are to be heard and 5
decided by the court or a magistrate, within the limits of the court's or 6
magistrate's jurisdiction. 7
(2) Proceedings before a magistrate are to be heard and decided 8
summarily under the Justices Act 1886, but the Industrial Magistrates Court 9
where the proceedings are taken is to be constituted by a magistrate sitting 10
alone. 11
(3) If the parties to proceedings commenced, or to be commenced, before 12
a magistrate agree, by notice signed by them or their representatives, that the 13
proceedings should be continued or taken before a magistrate at a particular 14
place in the State (other than the place where the proceedings should be 15
heard and decided under the Justices Act 1886)-- 16
(a) the magistrate at the particular place is authorised to hear and 17
decide the proceedings; and 18
(b) jurisdiction is conferred on each magistrate accordingly. 19
(4) If the proceedings have commenced before the agreement is made, 20
the magistrate, if satisfied the agreement exists, must-- 21
(a) adjourn the proceedings to the magistrate at the agreed place; and 22
(b) send the record of the proceedings taken before the magistrate to 23
the clerk of the Magistrates Court at the agreed place. 24
(5) For the adjourned proceedings, evidence heard or produced in the 25
proceedings before it was adjourned, is taken to have been heard or 26
produced before the magistrate to whom the proceedings were adjourned, 27
unless the parties otherwise agree. 28
(6) Subject to subsection (7), proceedings for an offence under this Act 29
must be commenced-- 30
(a) within 1 year after the offence was committed; or 31
(b) within 6 months after the offence comes to the complainant's 32
s 684 413 s 685
Industrial Relations
knowledge, but within 18 months after the offence was 1
committed. 2
(7) Proceedings for an offence under section 406 or 666184 must be 3
commenced within 6 months after the offence comes to the complainant's 4
knowledge, but within 6 years after the offence was committed. 5
may start proceedings 6
Organisations
684. Without limiting the authority of the State or a person to take 7
proceedings, an organisation, in its registered name, may commence 8
proceedings for-- 9
(a) contraventions of industrial instruments or permits; or 10
(b) an offence under this Act; or 11
(c) recovery of an amount payable to an employee. 12
amounts from organisations 13
Recovering
685.(1) This section applies for the recovery of-- 14
(a) a penalty imposed on an organisation under this Act; or 15
(b) an amount ordered to be paid by an organisation under this Act. 16
(2) Process may be issued and executed against the organisation's 17
property, whether the property is vested in trustees or is otherwise held for 18
the organisation, as if the organisation, as a corporation, were the absolute 19
owner of the property. 20
(3) In this section-- 21
"property" of an organisation means property that the organisation has-- 22
(a) legal title to; or 23
(b) a beneficial interest in, to the extent of the interest. 24
184 Section 406 (Contributing occupational superannuation) or 666 (Non-payment of
wages)
s 686 414 s 687
Industrial Relations
HAPTER 15--EMPLOYEES IN EMPLOYMENT OF 1
C
STATE 2
of Act to State 3
Application
686.(1) This Act binds the State, other than in relation to-- 4
(a) a matter that has been, or is, the subject of an appeal to the public 5
service commissioner under the Public Service Act 1996, 6
part 7;185 or 7
(b) a matter about which another Act excludes-- 8
(i) the jurisdiction of the court or commission about the matter; 9
or 10
(ii) the application of a decision under this Act about the matter; 11
or 12
(c) a matter about which another Act does not allow for jurisdiction 13
of the court or commission in relation to the matter, because the 14
other Act prescribes a process or procedure by which to pursue 15
the matter; or 16
(d) a determination or directive under the Health Services Act 1991. 17
(2) Subsection (1)(c) and this subsection expire on 1 July 2001. 18
(3) Subsection (1)(d) and this subsection expire on 1 July 2000. 19
between industrial instruments etc. and statutory decision 20
Conflict
687.(1) This section applies if there is an inconsistency between-- 21
(a) any of the following-- 22
(i) a directive of the public service commissioner under the 23
Public Service Act 1996, section 34(2) that is the subject of a 24
regulation under section 117(2)186 of that Act; 25
185 Public Service Act 1996, part 7 (Appeals)
186 Public Service Act 1996, section 117 (Inconsistency between directives and
industrial agreements)
s 688 415 s 688
Industrial Relations
(ii) a directive of the Minister under the Public Service Act 1996, 1
section 34(1);187 and 2
(b) an award, industrial agreement, certified agreement or decision of 3
the commission (the "industrial instrument"). 4
(2) If the commission decides that the subject matter of the directive is 5
within its jurisdiction, the industrial instrument prevails to the extent of the 6
inconsistency. 7
(3) Subsection (2) applies to a directive of the Minister, unless the 8
directive otherwise provides. 9
(4) In this section-- 10
"directive" includes a decision made in the exercise of a discretion given in 11
a directive. 12
of public property and officers 13
Protection
688.(1) Execution or attachment can not be made against property or 14
revenues of the State or a department to enforce an industrial instrument or 15
decision of the court, the commission or a magistrate. 16
(2) A person who is-- 17
(a) an employer of employees in a department; or 18
(b) taken to be an employer of employees in a department for this 19
Act; 20
is not personally liable under a relevant industrial instrument or for a 21
contravention of a relevant industrial instrument. 22
(3) In this section-- 23
"execution or attachment" includes process in the nature of execution or 24
attachment. 25
187 Public Service Act 1996, sections 32, (The Commissioner and office), 34
(Rulings of industrial relations Minister and commissioner) and 117
(Inconsistency between directives and industrial agreements)
s 689 416 s 691
Industrial Relations
of reference to State 1
Ambit
689.(1) This Act binds an instrumentality or body that is not a 2
department or part of a department, but that is taken by an Act, or otherwise 3
under law-- 4
(a) to be, or to represent, the State; or 5
(b) to have the rights, privileges or immunities of the State; 6
as it binds an employer, other than the State. 7
(2) A reference in section 686 or 688 to the State does not include a 8
reference to an instrumentality or body mentioned in subsection (1). 9
(3) In this section-- 10
"department or part of a department" includes a public service office or 11
part of a public service office. 12
of public sector units 13
Representation
690.(1) A public sector unit, or a person in a public sector unit, who is 14
concerned as an employer in an industrial cause must be represented in an 15
industrial tribunal by-- 16
(a) the unit's chief executive or an officer or employee of the unit 17
authorised by the chief executive; or 18
(b) if allowed under this Act--a lawyer or agent. 19
(2) In this section-- 20
"industrial tribunal" means the court, the commission or an Industrial 21
Magistrates Court. 22
cause affecting diverse employees 23
Industrial
691.(1) Subsection (2) applies if the Minister decides an industrial cause 24
is one that affects, or is likely to affect, employees in more than 1 public 25
sector unit. 26
(2) The chief executive of the department is taken to be-- 27
(a) the employer of all employees who are, or are likely to be, 28
affected; and 29
s 692 417 s 692
Industrial Relations
(b) a party to the cause and to proceedings in the court, the 1
commission or an Industrial Magistrates Court in the cause; 2
instead of all other persons who, apart from this subsection, would be 3
employers of the employees or any of them. 4
(3) An agreement made by the chief executive as employer or order 5
made in proceedings to which the chief executive is a party binds all 6
persons, and their employees, to whom the agreement or order purports to 7
apply. 8
HAPTER 16--INDUSTRIAL RELATIONS 9
C
ADVISORY COMMITTEE 10
established 11
Committee
692.(1) The industrial relations advisory committee (the "committee") is 12
established. 13
(2) The committee consists of-- 14
(a) the chief executive, who is the chairperson; and 15
(b) 2 persons representing employee organisations, nominated by the 16
organisations; and 17
(c) 2 persons representing employer organisations, nominated by the 18
organisations; and 19
(d) 2 persons who have knowledge of, or experience in, industrial 20
relations; and 21
(e) 1 person representing the Anti-Discrimination Commission. 22
(3) The Minister must appoint the members mentioned in 23
subsection (2)(b) to (d). 24
(4) The Minister must appoint an appointed member as the deputy 25
chairperson. 26
s 693 418 s 694
Industrial Relations
of committee 1
Functions
693.(1) The committee's functions are-- 2
(a) to investigate, and report to the Minister on, a matter about 3
industrial relations-- 4
(i) referred to it by the Minister; or 5
(ii) considered by the committee to be appropriate to be brought 6
to the Minister's attention; and 7
(b) to investigate, and report to the Minister on, a particular industrial 8
matter that has come to its attention; and 9
(c) to investigate, and report to the Minister on, other matters that 10
come within the operation of this Act; and 11
(d) to review this Act and its operation; and 12
(e) to make the recommendations to the Minister it considers 13
appropriate about a matter within the scope of its functions. 14
(2) In performing its functions, the committee-- 15
(a) must consult with the president on a matter relating to the exercise 16
or performance of the court's or commission's jurisdiction, 17
functions and powers; and 18
(b) may consult with an organisation or other association of persons, 19
or an individual; and 20
(c) may confer with the Minister about a matter it is investigating; 21
and 22
(d) must consider the attainment of the objects of this Act. 23
CHAPTER 17--GENERAL 24
working in and outside State 25
Employees
694.(1) This section applies if an employer-- 26
(a) has a workplace, or is present, in Queensland; and 27
s 695 419 s 696
Industrial Relations
(b) engages in Queensland an employee whose employment is, with 1
the employer's consent, performed partly in Queensland and 2
partly in another State. 3
(2) An industrial instrument that binds the employer and employee for 4
the employment performed in Queensland also binds them for the 5
employment performed in the other State. 6
work permit 7
Student's
695.(1) A student who is taking part in a tertiary study course may apply 8
to the registrar to issue a permit to work in a calling for a particular period. 9
(2) The student's application must provide satisfactory proof that the 10
period of work in the calling is necessary to complete the course. 11
(3) The permit must state-- 12
(a) the period of work; and 13
(b) the student's wage rate; and 14
(c) any conditions it is subject to. 15
(4) On issuing a permit, the registrar must immediately notify the 16
secretary of an employee organisation in the calling of-- 17
(a) the issue of the permit; and 18
(b) the permit's conditions. 19
(5) The permit has effect despite an award or certified agreement. 20
or infirm persons permits 21
Aged
696.(1) An application may be made to the commission for a permit for 22
an aged or infirm person, alleged to be unable to earn the minimum wage 23
provided for by an industrial instrument that applies to a calling, to work in 24
the calling for less than the minimum wage. 25
(2) The application may be made by-- 26
(a) the aged or infirm person; or 27
(b) an inspector. 28
(3) The commission may issue the permit, with or without conditions. 29
s 697 420 s 699
Industrial Relations
(4) On receiving an application, the commission must immediately notify 1
the secretary of an employee organisation in the calling of-- 2
(a) the application; and 3
(b) a time, at least 3 days and not more than 7 days from the date of 4
the notice, when the commission will hear any objection to the 5
issue of the permit. 6
(5) At the notified time, or at a time to which the matter is adjourned, the 7
commission must hear any objections from the organisation's authorised 8
representative. 9
(6) An organisation may apply, at any time under the rules, to the 10
commission to cancel the permit. 11
(7) This section applies, and a permit has effect, despite an award or 12
certified agreement. 13
of award and certified agreement to be displayed 14
Copy
697.(1) This section applies to a workplace where an industrial 15
instrument, other than a QWA, has application. 16
(2) The employer must display a copy of the instrument, in a 17
conspicuous place at the workplace where it is easily read by the employees 18
in the workplace. 19
Maximum penalty--20 penalty units. 20
(3) In this section-- 21
"workplace" includes a factory, workroom or shop. 22
amendments in awards, certified agreements or orders 23
Incorporating
698. If an award, certified agreement or order under chapter 5, part 5 is 24
amended, the registrar may reprint the award, agreement or order in a form 25
certified as correct by the registrar. 26
industrial instrument 27
Obsolete
699.(1) The registrar, after making inquiry, may notify in the industrial 28
gazette an intention to declare a stated industrial instrument obsolete. 29
s 700 421 s 701
Industrial Relations
(2) A person may, within the stated time and in the stated way, file an 1
objection notice with the commission. 2
(3) The commission must hear and decide the objection. 3
(4) If no objection is filed within the stated time, or all objections filed are 4
dismissed, the registrar may notify in the industrial gazette that the 5
instrument is obsolete. 6
(5) The instrument stops having effect on publication of the notice. 7
of employment on termination 8
Certificate
700.(1) An employer, when asked by a person whose employment with 9
the employer has been terminated, must give the person a certificate, signed 10
by the employer, about the particulars prescribed under a regulation. 11
Maximum penalty--20 penalty units. 12
(2) In this section-- 13
"terminated" means terminated by the employer or employee. 14
pretences relating to employment 15
False
701.(1) A person must not-- 16
(a) pretend someone else has been employed by the person for a 17
period, or in a capacity, other than that for, or in, which the other 18
person was employed; or 19
(b) assert in writing that someone else has been employed by the 20
person for a period, or in a capacity, knowing the assertion to be 21
false; or 22
(c) assert in writing another matter relating to the person's 23
employment of someone else, knowing the assertion to be false in 24
a material particular. 25
Maximum penalty--40 penalty units. 26
(2) A person must not-- 27
(a) forge a document that purports to be a discharge from, or a record 28
of, previous employment; or 29
s 702 422 s 702
Industrial Relations
(b) use a document that purports to be a discharge from, or a record 1
of, previous employment, knowing the document is not genuine 2
or is false; or 3
(c) pretend, or falsely claim, when seeking employment, to be a 4
person named in a genuine document mentioned in paragraph (b) 5
as a person to whom the document was given; or 6
(d) seek to obtain employment by assuming someone else's name, 7
living or dead, with intent to deceive. 8
Maximum penalty--40 penalty units. 9
(3) If, under a relevant industrial instrument in a calling, an employee's 10
wages depends wholly or partly on the employee's age, experience or 11
duration of previous employment, a person must not give information, or 12
make a statement, about the particulars that the person knows is false-- 13
(a) when seeking employment in the calling; or 14
(b) while an employee in the calling. 15
Maximum penalty--16 penalty units. 16
(4) A person's liability to be dealt with for an offence under 17
subsection (1) or (2) does not affect the person's liability to be dealt with 18
under the Criminal Code for forgery or false pretences. 19
(5) However, the person must not be dealt with under both this Act and 20
the Criminal Code for the same conduct. 21
from liability 22
Protection
702.(1) An official is not civilly liable for an act done, or omission made, 23
honestly and without negligence under this or another Act mentioned in 24
section 350(4).188 25
(2) If subsection (1) prevents civil liability attaching to a person, the 26
liability attaches instead to the State. 27
(3) In this section-- 28
"official" means-- 29
188 Section 350 (Appointment of inspectors)
s 703 423 s 703
Industrial Relations
(a) the Minister; or 1
(b) the chief executive; or 2
(c) the registrar; or 3
(d) another officer of the court or commission; or 4
(e) an inspector; or 5
(f) a person acting under the direction of an inspector. 6
to financially distressed 7
Payments
703.(1) Subsection (2) applies if a person is-- 8
(a) suffering hardship because an employer has failed to pay the 9
person the whole or part of wages; and 10
(b) unlikely to be able to recover by lawful means the whole or a 11
substantial part of the unpaid wages. 12
(2) The Governor in Council may authorise payment of an amount, not 13
more than the person is unlikely to recover, to the person from the 14
unclaimed moneys fund. 15
(3) The payment does not relieve the employer from liability to pay the 16
unpaid wages. 17
(4) If the person later receives remuneration in full or part satisfaction of 18
the employer's liability, the person must immediately pay the department 19
(for payment to the unclaimed moneys fund) an amount equal to the lesser 20
of-- 21
(a) the value of the remuneration received, as assessed by the 22
Minister; or 23
(b) the amount of the payment made to the person and not previously 24
repaid by the person under this subsection. 25
(5) The amount payable to the department-- 26
(a) is a debt payable to the department; and 27
(b) may be recovered by action in a court of competent jurisdiction. 28
s 704 424 s 707
Industrial Relations
(6) In this section-- 1
"remuneration" means remuneration, in money or kind. 2
and applications to be written 3
Notices
704. If a person must give a notice or make an application under this Act, 4
the notice or application must be written, unless otherwise provided. 5
descriptions 6
Inaccurate
705. No misnomer, inaccurate description or omission in or from a 7
document given under this Act prevents or limits the operation of this Act in 8
relation to the subject matter of the misnomer, inaccurate description or 9
omission, if the subject matter is sufficiently clear to be understood. 10
of information 11
Confidentiality
706. A person must not disclose information acquired when performing 12
functions or exercising powers under this Act to someone else, unless the 13
disclosure is-- 14
(a) made for this Act when performing a function under this Act; or 15
(b) authorised by-- 16
(i) the Minister; or 17
(ii) a court order, for hearing and deciding proceedings before 18
the court; or 19
(iii) a regulation; or 20
(c) required or permitted by another Act. 21
Maximum penalty--16 penalty units. 22
of Act generally 23
Application
707.(1) If a provision of this Act does not apply to a person or a class of 24
person, a decision is inoperative to the extent that it purports to apply to the 25
person or a member of the class about the provision's subject matter. 26
s 708 425 s 709
Industrial Relations
(2) In its application, this Act does not create a right, privilege or benefit 1
for a person for a period of service as an employee if, for the period, a 2
similar right, privilege or benefit was given to or received by the person 3
under a corresponding provision of the repealed Act. 4
forms 5
Approved
708.(1) The president may approve, for this Act, forms for use by or in 6
the court, commission, Industrial Magistrates Court or registry. 7
(2) The chief executive may approve, for this Act, forms for use in 8
circumstances not mentioned in subsection (1). 9
(3) Until 1 July 2001, a form prescribed in the Industrial Court 10
(Industrial Organisations) Rules 1990 or the Industrial Court Rules 1997 11
for use under the rules may continue to be used for the purpose for which it 12
is prescribed and may be amended or repealed in the same way as the rules. 13
(4) Subsection (3) and this subsection expire on 2 July 2001. 14
power 15
Regulation-making
709.(1) The Governor in Council may make regulations under this Act. 16
(2) In particular, but without limiting subsection (1), a regulation may be 17
made-- 18
(a) requiring an employer who is a party to a certified agreement or 19
QWA to supply information for statistical purposes; and 20
(b) requiring an employer who is a party to a QWA to supply copies 21
of documents prescribed under the regulation to the employee; 22
and 23
(c) about the required form of QWAs or ancillary documents, 24
including a requirement that the document be in the English 25
language; and 26
(d) about the witnessing of signatures on QWAs or ancillary 27
documents; and 28
(e) about the making and retention by employers of records relating 29
to the employment of persons under QWAs, and the inspection 30
of the records; and 31
s 710 426 s 710
Industrial Relations
(f) regulating the conduct of agents who act for parties in industrial 1
causes; and 2
(g) creating an offence under a regulation; and 3
(h) fixing a penalty for an offence under a regulation, including 4
different penalties for successive offences against a regulation, of 5
not more than 20 penalty units. 6
CHAPTER 18--SAVINGS AND REPEALS 7
8
Savings
710.(1) A person prescribed under any Act to be an employee within the 9
meaning of the repealed Act continues to be an employee within the 10
meaning of this Act. 11
(2) Subsection (3) applies to an award, decision, exemption, judgment, 12
ruling, permit or licence or other act of authority (the "instrument") that 13
was-- 14
(a) made, given, done, granted, certified or approved by the court, the 15
commission, a magistrate or the registrar under the repealed Act 16
or the IO Act, and in relation to which there is a corresponding 17
provision under this Act; and 18
(b) in force immediately before the commencement of this Act. 19
(3) The instrument-- 20
(a) continues in force as if it had been made, given, done, granted or 21
approved by the court, commission, magistrate or registrar, 22
according to their respective functions and jurisdictions, under the 23
corresponding provision of this Act; and 24
(b) may be amended, revoked or suspended under this Act. 25
(4) Proceedings started before the commencement of this section under a 26
provision of the repealed Act or the IO Act and pending at the date of the 27
repeal may be carried on and prosecuted as if they had been started under 28
the corresponding provision of this Act. 29
s 711 427 s 712
Industrial Relations
(5) Proceedings are taken to be part heard after the start of the hearing 1
until the decision in the proceedings is given. 2
and rules to continue 3
Regulation
711.(1) The following instruments under the repealed Act continue in 4
force, and may be amended, as if they had been made under this Act-- 5
(a) the Workplace Relations Regulation 1997; 6
(b) the Industrial Court (Industrial Organisations) Rules 1990; 7
(c) the Industrial Court Rules 1997. 8
(2) The instruments are to be read with the changes necessary to make 9
them consistent with this Act and to adapt their operation to the provisions 10
of this Act. 11
(3) The Industrial Organisations Regulation 1997 continues in force, 12
and may be amended, as if it had been made under this Act. 13
(4) The Industrial Organisation Regulation 1997 is to be read with-- 14
(a) the amendments in schedule 4;189 and 15
(b) other changes necessary to make the regulation consistent with 16
this Act and to adapt its operation to the provisions of this Act. 17
(5) This section expires on 1 July 2000. 18
19
Repeals
712.(1) The following Acts are repealed-- 20
(a) the Workplace Relations Act 1997; 21
(b) the Industrial Organisations Act 1997. 22
(2) A proclamation commencing this section may fix different days or 23
times for the repeal of different provisions of an Act to be repealed under 24
subsection (1). 25
189 Schedule 4 (Amendment of model election rules)
s 713 428 s 713
Industrial Relations
(3) One or more further proclamations may be made fixing different 1
days or times for the repeal of different provisions of the Act until the Act is 2
entirely repealed. 3
CHAPTER 19--SAVING AND TRANSITIONAL 4
PROVISIONS FOR INDUSTRIAL RELATIONS 5
ACT 1999 6
PART 1--EXISTING INDUSTRIAL AGREEMENTS 7
industrial agreement continues 8
Existing
713.(1) An industrial agreement that is in force immediately before the 9
commencement of this section continues to have effect after the 10
commencement. 11
(2) The provisions of the 1990 Act, other than those relating to the 12
making or amendment of an industrial agreement, continue to apply to the 13
industrial agreement, subject to this part. 14
(3) The commission may amend the industrial agreement only before its 15
term expires and in accordance with a written agreement filed by the parties 16
to the industrial agreement in the registry. 17
(4) However, the term of the industrial agreement can not be extended by 18
agreement. 19
(5) If there is no applicable award, the commission, of its own initiative 20
or on an application by a party to the industrial agreement, may decide that 21
the industrial agreement has effect as an award. 22
(6) The industrial agreement may be terminated, before its term expires, 23
by written agreement filed by the parties to the industrial agreement in the 24
registry. 25
s 714 429 s 716
Industrial Relations
agreement displaced by QWA 1
Industrial
714. If a QWA comes into operation in relation to an employee who is 2
bound by an industrial agreement, the industrial agreement stops having 3
effect in relation to the employee. 4
PART 2--EXISTING CERTIFIED AGREEMENTS 5
termination provisions for existing certified agreements 6
New
715.(1) A certified agreement that is in force immediately before the 7
commencement of this section continues to have effect after the 8
commencement. 9
(2) Section 172190 applies to a certified agreement entered into before the 10
commencement of this section if, whether before or after the 11
commencement-- 12
(a) the period of operation stated in the agreement has ended; or 13
(b) if it has been extended or further extended under the repealed 14
Act--the period as extended or further extended has ended. 15
that prevail over certified agreements 16
EFAs
716.(1) This section applies if-- 17
(a) an EFA is continued in force by part 3; and 18
(b) any part of the period of operation stated in the agreement (the 19
"post-commencement period"), or that period as extended or 20
further extended, happens after the commencement of this 21
section; and 22
(c) the EFA is, during the post-commencement period, to any extent 23
inconsistent with a certified agreement, whether made before or 24
after the commencement of this section; and 25
190 Section 172 (Terminating a certified agreement on or before its nominal expiry
date)
s 717 430 s 719
Industrial Relations
(d) the certified agreement was certified after implementation of the 1
EFA was approved. 2
(2) The EFA prevails over the certified agreement, to the extent of the 3
inconsistency, during the post-commencement period. 4
agreements that prevail over EFAs 5
Certified
717.(1) This section applies if-- 6
(a) an EFA is continued in force by part 3; and 7
(b) a certified agreement, whether made before or after the 8
commencement of this section, is to any extent inconsistent with 9
the EFA; and 10
(c) section 716 does not apply to the inconsistency. 11
(2) The certified agreement prevails over the EFA, to the extent of the 12
inconsistency. 13
PART 3--EXISTING EFAS 14
EFA continues 15
Existing
718.(1) An EFA that is in force immediately before the commencement 16
of this section continues to have effect after the commencement. 17
(2) The provisions of the 1990 Act, other than those relating to the 18
making of an EFA, continue to apply to the EFA, subject to this part. 19
(3) However, the period of operation of the EFA can not be extended 20
after the commencement. 21
displaced by QWA and determination 22
EFA
719.(1) If a QWA comes into operation in relation to an employee who 23
is bound by the EFA, the EFA stops having effect in relation to the 24
employee. 25
s 720 431 s 721
Industrial Relations
(2) A determination under section 149191 prevails over an EFA to the 1
extent of any inconsistency. 2
ART 4--UNLAWFUL DISMISSALS 3
P
before commencement of this section 4
Dismissals
720. The repealed Act, chapter 5, part 2, continues to apply to a dismissal 5
within the meaning of that part that happened before the commencement of 6
this section. 7
PART 5--REPRESENTATION RIGHTS OF 8
EMPLOYEE ORGANISATIONS 9
under the repealed Act, s 293 10
Applications
721. If an application has been made under the repealed Act, 11
section 293192-- 12
(a) the hearing of the application may be started and continued as if 13
this Act had not been enacted; and 14
(b) that section continues to apply to the hearing; and 15
(c) an order made as a result of the hearing has effect as if it had been 16
made under that section before its repeal. 17
191 Section 149 (Arbitration if conciliation unsuccessful)
192 Workplace Relations Act 1997, section 293 (Orders about representation rights of
employee organisations)
s 722 432 s 724
Industrial Relations
PART 6--REFERENCES AND APPOINTMENTS 1
to repealed Act or IO Act 2
References
722. In an Act or document, a reference to the repealed Act or the IO Act 3
may, if the context permits, be taken to be a reference to this Act. 4
continue 5
Appointments
723.(1) A person who immediately before the commencement of this 6
section held an appointment as a commissioner under the repealed Act 7
continues to hold the appointment, subject to this Act, until-- 8
(a) the end of the term of appointment; or 9
(b) reappointed under this Act. 10
(2) A person who immediately before the commencement of this section 11
held an appointment as-- 12
(a) the registrar; or 13
(b) the chief inspector; or 14
(c) an inspector; 15
under the repealed Act continues to hold the appointment, subject to this 16
Act. 17
(3) A person who immediately before the commencement of this section 18
held an appointment under the IO Act continues to hold the appointment 19
until the end of the term of appointment, if any, subject to this Act. 20
ART 7--VETE ORDERS AND DETERMINATIONS 21
P
commenced under the Vocational Education, Training 22
Proceedings
and Employment Act 1991 23
724. Proceedings started under the Vocational Education, Training and 24
Employment Act 1991, section 98(4), 100(6), 103(2) or 120(3)(b), before 25
s 725 433 s 725
Industrial Relations
the commencement of this section, and pending at the commencement, may 1
be carried on and prosecuted as if it had been started the corresponding 2
provision of this Act. 3
and determinations under the Vocational Education, Training 4
Orders
and Employment Act 1991 5
725.(1) An order made by the commission under the Vocational 6
Education, Training and Employment Act 1991, section 83, 86(2) or 7
87(5),193 that is in force immediately before the commencement of this 8
section, continues to have effect after the commencement as if it had been 9
made by the commission under section 137.194 10
(2) A determination by the State Training Council under the Vocational 11
Education, Training and Employment Act 1991, section 86(5) or 12
section 87(2)195, that is in force immediately before the commencement of 13
this section, continues to have effect after the commencement as if it had 14
been made by the commission as an order under section 137.196 15
(3) An order made by the commission under the Vocational Education, 16
Training and Employment Act 1991, section 89(1)197, that is in force 17
immediately before the commencement of this section, continues to have 18
effect after the commencement as if it had been made by the commission 19
under section 138.198 20
193 Vocational Education, Training and Employment Act 1991, section 83 (Fixing of
wages payable to trainees), 86 (Fixing of wages payable to apprentices) or 87
(Fixing of other entitlements of apprentices)
194 Section 137 (Order setting minimum wages and conditions)
195 Vocational Education, Training and Employment Act 1991, section 98 (Provision
of tools of trade), 100 (Recovery of moneys due and payable to, or on account of
apprentice or trainee), 103 (Recovery of unpaid superannuation contribution due
to apprentice or trainee) or 120 (Proceedings for offences)
196 Section 137 (Order setting minimum wages and conditions)
197 Vocational Education, Training and Employment Act 1991, section 89 (Industrial
Commission may order provision of tools of trade)
198 Section 138 (Order setting tool allowance)
s 726 434 s 726
Industrial Relations
ART 8--ORGANISATIONS 1
P
with dual corporate status 2
Organisations
726.(1) This section applies if, on the commencement of this section, an 3
organisation was incorporated under a former incorporation provision and it 4
was also-- 5
(a) a corporation under the Corporations Law, section 57A;199 or 6
(b) an incorporated association under the Associations Incorporation 7
Act 1981; or 8
(c) a body incorporated under a law of the State. 9
(2) Two years after the commencement, the organisation is taken to be no 10
longer incorporated under the former incorporation provision for this Act. 11
(3) However, subsection (2) does not affect any continued incorporation 12
of the organisation under a law mentioned in subsection (1)(a) to (c). 13
(4) The registrar may, on the application of the organisation made before 14
the end of the 2 years, cancel its incorporation under the former 15
incorporation provision. 16
(5) The commission may, on the referral of the registrar, make an order it 17
considers appropriate to resolve any difficulty that may arise from the 18
organisation no longer being incorporated under the former incorporation 19
provision. 20
(6) In this section-- 21
"former incorporation provision" means a provision as follows-- 22
(a) the Industrial Conciliation and Arbitration Act 1932, 23
section 41(1); 24
(b) the Industrial Conciliation and Arbitration Act 1961, 25
section 69(1); 26
199 Section 57A (Meaning of "corporation") of the Corporations Law
s 727 435 s 729
Industrial Relations
(c) the 1990 Act, section 334; 1
(d) the IO Act, section 18.200 2
registration of organisations 3
Continued
727.(1) An industrial organisation registered, or taken to be registered, 4
under the IO Act immediately before this section commences is taken to be 5
registered as an organisation under this Act at the commencement. 6
(2) The name of an organisation under the IO Act is unchanged under 7
this Act. 8
(3) The organisation is and continues to be the same body corporate 9
under this Act without any break in, or change to, its corporate identity. 10
for exemption from membership of an organisation 11
Applications
728. The procedure under the IO Act, section 90(3) to (5) continues to 12
apply to the hearing of an application for exemption from membership of an 13
organisation until a regulation is made under section 112.201 14
15
Amalgamations
729.(1) This section applies until a regulation is made under chapter 12, 16
part 15 that is expressed to replace the effect of the IO Act, sections 96 to 17
98, 100 to 104, 106 to 115, 117 to 141, and 144 to 146 ("continued 18
provisions"). 19
(2) Despite the repeal of the IO Act, the continued provisions continue to 20
apply to an amalgamation or proposed amalgamation, with the changes 21
200 Industrial Conciliation and Arbitration Act 1961, section 69 (Incorporation of
union)
Industrial Organisations Act 1997, section 18 (Organisations corporate bodies)
Industrial Relations Act 1990, section 334 (Industrial organisations corporate
bodies)
201 Industrial Organisations Act 1997, section 90 (Conscientious objection to
organisation membership)
Section 112 (Procedure for hearing)
s 730 436 s 732
Industrial Relations
necessary to make them consistent with this Act and to adapt their operation 1
to the provisions of this Act. 2
from amalgamation 3
Withdrawals
730.(1) This section applies until a regulation is made under chapter 12, 4
part 15 that is expressed to replace the effect of the IO Act, sections 160 to 5
174, 177 and 178 ("continued provisions"). 6
(2) Despite the repeal of the IO Act, the continued provisions continue to 7
apply to a withdrawal or proposed withdrawal, with the changes necessary 8
to make them consistent with this Act and to adapt their operation to the 9
provisions of this Act. 10
and ballot expenses 11
Election
731.(1) The IO Act, section 55 continues to apply to an organisation for 12
an election for the organisation that, immediately before this section 13
commences, was finished or was being conducted but had not finished. 14
(2) If, immediately before the commencement of this section, the IO Act, 15
section 74 applied to an election or a step in an election, that section 16
continues to apply to the election or step if the election or step was finished 17
or was being conducted, but had not finished. 18
(3) The IO Act, section 116 continues to apply to an organisation for a 19
ballot for a proposed amalgamation if, immediately before the 20
commencement of this section, the ballot was finished or was being 21
conducted, but had not finished. 22
(4) The IO Act, section 186 continues to apply to a person who applied 23
for a ballot for a proposed withdrawal from amalgamation if, immediately 24
before the commencement of this section, the ballot was finished or was 25
being conducted, but had not finished. 26
(5) Subsections (1) to (4) have effect despite the repeal of the IO Act. 27
objects funds 28
Political
732.(1) This section applies if, immediately before section 551 29
commences, an organisation had a political objects fund under the IO Act, 30
s 733 437 s 735
Industrial Relations
part 12.202 1
(2) The IO Act, section 227(1) to (3) ("section 227") continues to apply 2
to any contribution to the fund for 6 months after the commencement. 3
(3) A direction to the organisation under section 227 expires at the end of 4
the 6 months. 5
(4) At the end of the 6 months the organisation must close the fund and 6
pay out any amount in the fund under its rules. 7
(5) Subsection (2) has effect despite the repeal of the IO Act. 8
CHAPTER 20--AMENDMENT OF PUBLIC 9
SERVICE ACT 1996 10
amended 11
Act
733. This chapter amends the Public Service Act 1996. 12
of s 22 (Application of Act to certain public sector units 13
Amendment
etc.) 14
734.(1) Section 22(4), `remuneration'-- 15
omit, insert-- 16
`overall employment conditions'. 17
(2) Section 22(6)-- 18
omit. 19
of s 33 (Functions of commissioner) 20
Amendment
735.(1) Section 33(b) and (e), `employment'-- 21
202 Section 551 (Definitions for pt 12) and Industrial Organisations Act 1997, part 12
(Accounts and Audit)
s 735 438 s 735
Industrial Relations
omit, insert-- 1
`workforce practices'. 2
(2) Section 33(f), after `protected'-- 3
insert-- 4
`in accordance with the other functions mentioned in this section'. 5
(3) Section 33(g)-- 6
omit, insert-- 7
`(g) consider and decide, overall employment conditions for persons 8
employed as-- 9
(i) senior executives and senior officers; or 10
(ii) public service officers on contract whose remuneration is 11
equal to, or higher than, the remuneration payable to a senior 12
officer; and'. 13
(4) Section 33(h) to (o)-- 14
renumber as section 33(i) to (p). 15
(5) Section 33-- 16
insert-- 17
`(h) together with the departments responsible for public sector 18
industrial relations and public sector financial policy, consider 19
improvements in the performance of departments through 20
remuneration and conditions of employment; and'. 21
(6) Section 33(m), as renumbered, `and employment'-- 22
omit, insert-- 23
`of workforce practices'. 24
(7) Section 33(n), as renumbered-- 25
omit, insert-- 26
`(n) undertake, or participate in, negotiations on issues affecting public 27
service employees in accordance with the other functions 28
mentioned in this section; and'. 29
s 736 439 s 737
Industrial Relations
of s 34 (Rulings of industrial relations Minister and 1
Amendment
commissioner) 2
736.(1) Section 34(1) to (3)-- 3
omit, insert-- 4
`34.(1) The commissioner may issue directives or guidelines only 5
about-- 6
(a) a matter relating to a function of the commissioner under 7
section 33; or 8
(b) the overall employment conditions for persons employed as-- 9
(i) senior executives or senior officers; or 10
(ii) public service officers on contract whose remuneration is 11
equal to, or higher than, the remuneration payable to a senior 12
officer; or 13
(c) a matter as required elsewhere in this Act. 14
`(2) The industrial relations Minister may issue directives and guidelines 15
only about the remuneration and conditions of employment of public 16
service employees other than those mentioned in subsection (1)(b).'. 17
(2) Section 34(4) to (6)-- 18
renumber as section 34(3) to (5). 19
of s 69 (Basis of employment--tenure or contract) 20
Amendment
737.(1) Section 69(a), `under a directive of the commissioner,'-- 21
omit, insert-- 22
`it is decided that'. 23
(2) Section 69-- 24
insert-- 25
`(2) For subsection (1)(a), the decision is to be made by-- 26
(a) for a person employed as a public service officer on contract 27
whose remuneration is equal to, or higher than, the remuneration 28
payable to a senior officer--the commissioner by directive; or 29
s 738 440 s 741
Industrial Relations
(b) for any other officer--the chief executive of the department 1
responsible for administering the Industrial Relations Act 1999 2
by gazette notice.'. 3
of s 70 (Basis of employment for contract employment) 4
Amendment
738.(1) Section 70(6)-- 5
omit, insert-- 6
`(6) The person's overall employment conditions under the contract must 7
not, on balance, be less than those that the person would be entitled to if the 8
person were appointed on tenure.'. 9
(2) Section 70(7), `Industrial Commission'-- 10
omit, insert-- 11
`Industrial Relations Commission'. 12
(3) Section 70(8)-- 13
omit. 14
of s 81 (Action because of surplus) 15
Amendment
739. Section 81(2), `of the commissioner'-- 16
omit. 17
of s 85 (Mental or physical incapacity) 18
Amendment
740. Section 85(1)(a), `without approved leave'-- 19
omit. 20
of s 114 (Application of Act to general and temporary 21
Amendment
employees) 22
741. Section 114, `of the commissioner'-- 23
omit. 24
s 742 441 s 744
Industrial Relations
of s 117 (Inconsistency between directives and industrial 1
Replacement
agreements) 2
742. Section 117-- 3
omit, insert-- 4
between directives and awards etc. 5
`Relationship
`117.(1) This section applies if a directive deals with a matter that is dealt 6
with, wholly or partly, under an industrial instrument. 7
`(2) A directive of the commissioner prevails over an industrial 8
instrument, unless a regulation provides otherwise. 9
`(3) An industrial instrument prevails over a directive of the industrial 10
relations Minister, unless the directive provides otherwise. 11
`(4) In this section-- 12
"directive" includes a decision made in the exercise of a discretion given in 13
a directive. 14
"industrial instrument" means an award, industrial agreement or a 15
decision of the Industrial Relations Commission.'. 16
of s 118 (Regulation-making power) 17
Amendment
743. Section 118(3), `a reserved matter'-- 18
omit, insert-- 19
`remuneration and conditions of employment'. 20
of s 136 (Existing regulations) 21
Amendment
744. Section 136(1), after `this Act"-- 22
insert-- 23
`until the commencement of the amendment to section 34(2) under the 24
Industrial Relations Act 1999'. 25
s 745 442 s 747
Industrial Relations
of sch 1 (Public service offices and their heads) 1
Amendment
745.(1) Schedule 1, items 6 to 12-- 2
renumber as items 7 to 13. 3
(2) Schedule 1-- 4
insert-- 5
`6 Industrial Registry Industrial registrar'.
of sch 3 (Dictionary) 6
Amendment
746. Schedule 3-- 7
insert-- 8
` "overall employment conditions" means remuneration and conditions of 9
employment.'. 10
CHAPTER 21--CONSEQUENTIAL 11
AMENDMENTS 12
amendments 13
Consequential
747. Schedule 3 amends the Acts it mentions. 14
15
443
Industrial Relations
SCHEDULE 1 1
¡
INDUSTRIAL MATTERS 2
section 7(3) 3
1. Wages, allowances or remuneration of persons employed, or to be 4
employed, during ordinary working hours, on overtime, on special 5
work or on public holidays. 6
2. Pay equity. 7
3. Whether piecework will be allowed. 8
4. Whether employees are to be given particular leave on full pay. 9
5. Whether and on what conditions employees may board and lodge with 10
their employers, including where it is necessary for employers to 11
provide the board and lodging at a reasonable standard, where it would 12
be impractical not to. 13
6. Whether monetary allowances will be paid by employers to employees 14
for standing back or waiting time caused-- 15
(a) by the conditions of the employer's calling; or 16
(b) by the intermittency of industrial operations; or 17
(c) otherwise. 18
7. The length of notice to be given by an employer or employee to the 19
other before terminating employment, and wages to be paid or deducted 20
instead of notice. 21
8. Occupational superannuation. 22
9. The hours of work, the time to be worked to entitle employees to a 23
particular wage, allowance, remuneration or price, or what time will be 24
taken to be overtime. 25
10. Claims to restrict work before or after particular hours. 26
11. Providing for shorter hours, higher wages, or other conditions for 27
persons employed under abnormal conditions or in abnormal 28
444
Industrial Relations
SCHEDULE 1 (continued)
workplaces, and deciding what are abnormal conditions or workplaces. 1
12. The age, qualification or status of employees, or the mode and 2
conditions of employment or non-employment, including whether a 3
person should be disqualified for employment. 4
13. Employment of young employees or of a person or class of person, or 5
the disqualification of a person for employment because of age or 6
impairment. 7
14. The number or proportion of aged, impaired or infirm persons or other 8
employees that may be employed by an employer, or the lowest prices 9
or rates payable to them. 10
15. A claim to dismiss or to refuse to employ a particular person or class of 11
person, or whether a particular person or class of person, ought to be 12
continued or reinstated in the employment of a particular employer, 13
considering the public interest, despite common law rights of employers 14
or employees. 15
16. The right to dismiss, or to refuse to employ, reinstate or re-employ a 16
particular person, or class of person, in a particular calling. 17
17. Custom or usage about employment conditions, either generally or in a 18
particular calling or locality. 19
18. The interpretation or enforcement of an industrial instrument or a 20
permit, unless this Act otherwise prescribes. 21
19. The subject matter of an industrial dispute, and a matter that has caused, 22
or the court or commission considers is likely to cause, disagreement or 23
friction between employers and employees. 24
20. What is fair and just, considering the interests of the persons 25
immediately concerned and the community, according to the standard of 26
the average good employer and the average competent and honest 27
employee in all matters relating to the relations of employers and 28
employees, whether or not the relationship of employer and employee 29
exists or existed-- 30
(a) at or before the making of a relevant application to the court or 31
commission; or 32
445
Industrial Relations
SCHEDULE 1 (continued)
(b) at the making or enforcement of a decision of the court or 1
commission. 2
21. The regulation of relations between employer and employee, or between 3
employees, and to that end the imposition of conditions on-- 4
(a) the conduct of a calling; and 5
(b) the provision of benefits to persons engaged in a calling. 6
22. A demarcation dispute. 7
23. The authorised payment by an employer of an employee's membership 8
fees of an organisation of employees. 9
24. The surveillance of employees in the workplace. 10
25. Discrimination in employment, including in remuneration or other 11
employment conditions. 12
26. Claims to have protective clothing or appliances, hot or cold water, or 13
sanitary or bathing accommodation provided for the use of employees. 14
27. Fixing standards of normal temperatures or atmospheric purity in 15
workplaces, above or below ground. 16
17
446
Industrial Relations
SCHEDULE 2 1
¡
PPOINTMENTS AND PROCEDURES 2
A
section 8 3
PART 1--PRESIDENT, VICE PRESIDENT, 4
COMMISSIONER ADMINISTRATOR AND 5
COMMISSIONERS 6
7
Remuneration
1.(1) The person first appointed as the president after the commencement 8
of section 243203 is to receive the salary and allowances that are payable to a 9
Supreme Court judge immediately before the commencement. 10
(2) The person first appointed as the vice president after the 11
commencement of section 258204 is to receive the salary and allowances 12
that were payable to the chief commissioner immediately before the 13
commencement. 14
(3) After the commencement of this section, the salary and allowances 15
payable to the president, vice president, commissioner administrator and 16
commissioners are to be fixed under the Judges (Salaries and Allowances) 17
Act 1967. 18
(4) A person acting as the president, vice president, commissioner 19
administrator or commissioner is entitled to the salary and allowances 20
payable to the president, vice president, commissioner administrator or 21
commissioner. 22
(5) The salaries and allowances are payable out of the consolidated fund, 23
which is appropriated for the purpose. 24
203 Section 243 (President of the court)
204 Section 258 (Vice president of the commission)
447
Industrial Relations
SCHEDULE 2 (continued)
(Pensions and Long Leave) Act 1
Benefits--Judges
2.(1) The Judges (Pensions and Long Leave) Act 1957, other than 2
sections 2A and 15,205 (the "pensions Act") applies with necessary 3
changes to a member and a member's spouse or child in the way it applies 4
to a judge and a judge's spouse or child. 5
(2) In the pensions Act, a reference to a judge may, if the context permits, 6
be taken to be a reference to a member. 7
(3) In working out a person's length of service as a member for 8
subsection (1), the following periods must be taken into account-- 9
(a) a period when the person has served as a member, whether 10
under-- 11
(i) a first appointment as a member or a renewal of the 12
appointment; or 13
(ii) a subsequent appointment; 14
(b) a period when the person has served as an acting member. 15
(4) This section does not apply if section 3 applies. 16
(State Public Sector) Act 1990 17
Benefits--Superannuation
3.(1) Section 2 does not confer an entitlement on a member or a 18
member's spouse or child, if either of the following apply-- 19
(a) for a member first appointed to the commission before the 20
commencement of this section--immediately before the 21
commencement, the member was not a member to whom the 22
Judges (Pensions and Long Leave) Act 1957 applied; 23
(b) for a member first appointed to the commission after the 24
commencement of this section-- 25
(i) the member is a member of the scheme and properly elects 26
to continue as a member of the scheme; or 27
205 Judges (Pensions and Long Leave) Act 1957, sections 2A (Length of service) and
15 (Leave of absence of Judges)
448
Industrial Relations
SCHEDULE 2 (continued)
(ii) the member is not a member of the scheme and properly 1
elects to be a member of the scheme. 2
(2) A member making an election under subsection (1)(b) must do so, 3
by signed notice in duplicate, within 3 months after being first appointed as 4
a member. 5
(3) A copy of the election must be given to-- 6
(a) the board under the Superannuation (State Public Sector) Act 7
1990; and 8
(b) the chief executive of the department in which this Act is 9
administered. 10
(4) In this section-- 11
"scheme" means the scheme under the Superannuation (State Public 12
Sector) Act 1990. 13
of absence 14
Leave
4.(1) The Judges (Pensions and Long Leave) Act 1957, section 15206 15
applies with necessary changes to a member in the way it applies to a judge. 16
(2) In section 15 of that Act, a reference to a judge may, if the context 17
permits, be taken to be a reference to a member. 18
(3) In working out a person's length of service as a member for 19
subsection (1), the following periods must be taken into account-- 20
(a) a period when the person has served as a member, whether 21
under-- 22
(i) a first appointment as a member or a renewal of the 23
appointment; or 24
(ii) a subsequent appointment; 25
(b) a period when the person has served as an acting member. 26
206 Judges (Pensions and Long Leave) Act 1957, section 15 (Leave of absence of
Judges)
449
Industrial Relations
SCHEDULE 2 (continued)
ART 2--REGISTRAR 1
P
of registrar's rights if a public service officer 2
Preservation
5.(1) This section applies if the person appointed as the registrar was, 3
immediately before the appointment, a public service officer. 4
(2) The person keeps the rights the person has accrued because of 5
employment as a public service officer, or that would accrue in the future to 6
the person, as if service as registrar were a continuation of service as a 7
public service officer. 8
(3) If the person's term of appointment as registrar ends or the person 9
resigns-- 10
(a) the person has the right to be employed as a public service 11
officer-- 12
(i) in the department that is the nearest practical equivalent to the 13
department in which the person was employed as a public 14
service officer immediately before the person last stopped 15
being a public service officer; and 16
(ii) at the classification level at which the person was employed 17
as a public service officer immediately before the person last 18
stopped being a public service officer; and 19
(iii) on the remuneration payable to a public service officer on the 20
classification level mentioned in subparagraph (ii); and 21
(iv) for duties appropriate to the classification level mentioned in 22
subparagraph (ii); and 23
(b) the person's service as registrar is taken to be service as a public 24
service officer for working out the person's rights as a public 25
service officer. 26
(4) If the person, immediately before the appointment, was a member of 27
the scheme under the Superannuation (State Public Sector) Act 1990, the 28
person continues to be eligible to be, and to be, a member of the scheme. 29
450
Industrial Relations
SCHEDULE 2 (continued)
of absence of registrar 1
Leave
6. The Minister may grant leave of absence to the registrar on the terms 2
the Minister considers appropriate. 3
of registrar 4
Resignation
7. The registrar may resign by signed notice given to the Minister. 5
PART 3--INSPECTORS 6
conditions 7
Appointment
8.(1) An inspector holds office on the conditions stated in the instrument 8
of appointment. 9
(2) An inspector stops holding office-- 10
(a) if the appointment provides for a term of appointment--at the end 11
of the term; and 12
(b) if the appointment conditions provide--on ceasing to hold another 13
office stated in the appointment conditions (the "main office"). 14
(3) An inspector may resign by signed notice of resignation given to the 15
chief executive. 16
(4) However, an inspector may not resign from the office of inspector 17
(the "secondary office") if a condition of the inspector's employment to the 18
main office requires the inspector to hold the secondary office. 19
on powers 20
Limitation
9.(1) In exercising a power, an inspector is subject to the chief inspector's 21
directions. 22
(2) An inspector's powers may be limited-- 23
(a) under a condition of appointment; or 24
451
Industrial Relations
SCHEDULE 2 (continued)
(b) by notice given by the chief executive to the inspector; or 1
(c) under a regulation. 2
cards 3
Identity
10.(1) The chief executive must give each inspector an identity card. 4
(2) The identity card must-- 5
(a) contain a recent photo of the inspector; and 6
(b) be signed by the inspector; and 7
(c) identify the person as an inspector for this Act; and 8
(d) include an expiry date for the card 9
(3) A person who stops being an inspector must return the person's 10
identity card to the chief executive as soon as possible, but within 21 days, 11
after the person stops being an inspector, unless the person has a reasonable 12
excuse. 13
Maximum penalty--10 penalty units. 14
(4) This section does not prevent the giving of a single identity card to a 15
person for this and other Acts or for other purposes. 16
ART 4--PRESIDENT'S ADVISORY COMMITTEE 17
P
for pt 4 18
Definitions
11. In this part-- 19
"appointed member" means a member of the president's advisory 20
committee appointed by the Minister. 21
"member" means a member of the president's advisory committee. 22
452
Industrial Relations
SCHEDULE 2 (continued)
of office 1
Term
12.(1) The appointment of a member is for the term, not longer than 2
3 years, stated in the notice of the member's appointment. 3
(2) An appointed member may resign by signed notice given to the 4
Minister. 5
of appointed members 6
Remuneration
13. An appointed member is entitled to the allowances and reasonable 7
expenses approved by the Minister. 8
of president's advisory committee 9
Meetings
14. Meetings of the president's advisory committee are to be-- 10
(a) called by the president; and 11
(b) held when the president decides, but at least 3 times a year. 12
PART 5--INDUSTRIAL RELATIONS ADVISORY 13
COMMITTEE 14
for pt 5 15
Definitions
15. In this part-- 16
"appointed member" means a member of the industrial relations advisory 17
committee appointed by the Minister. 18
"member" means a member of the industrial relations advisory committee. 19
of office 20
Term
16.(1) The appointment of a member is for the term, not longer than 21
3 years, stated in the notice of the member's appointment. 22
453
Industrial Relations
SCHEDULE 2 (continued)
(2) An appointed member may resign by signed notice given to the 1
Minister. 2
of members 3
Deputies
17.(1) This section applies if a member, other than the chairperson, can 4
not perform the functions of the appointment because of absence, illness, or 5
another cause. 6
(2) The Minister may appoint a person to act as the deputy of the 7
member during the member's incapacity. 8
(3) While a deputy of a member acts, the deputy must perform the 9
functions, may exercise the powers, and has the entitlements, of the 10
member. 11
of appointed members 12
Remuneration
18. An appointed member is entitled to the allowances and reasonable 13
expenses approved by the Minister. 14
of committee meetings 15
Conduct
19.(1) Meetings of the committee are to be-- 16
(a) called by the chairperson; and 17
(b) held when the chairperson decides, but at least 3 times a year. 18
(2) The chairperson must preside at all meetings at which the chairperson 19
is present, and in the chairperson's absence, the deputy chairperson must 20
preside. 21
(3) A quorum of the committee consists of 6 members of whom the 22
chairperson or deputy chairperson must be 1. 23
(4) Business must not be conducted at a meeting unless a quorum is 24
present. 25
(5) Business before a meeting at which a quorum is present must be 26
decided by majority vote of the members present and entitled to vote. 27
454
Industrial Relations
SCHEDULE 2 (continued)
(6) A member present at a meeting and entitled to vote who refrains from 1
voting on an item of business before the committee, other than with the 2
chairperson's leave on the ground of conflict of interest, is taken to have 3
voted in the negative. 4
(7) If there is an equality of votes on an item of business, the presiding 5
member has a second or casting vote. 6
(8) Minutes of each meeting are to be recorded in writing, and the 7
original only of the minutes must be produced at, or for, a meeting. 8
(9) Records of the committee are in the chairperson's custody. 9
10
455
Industrial Relations
SCHEDULE 3 1
¡
ONSEQUENTIAL AMENDMENTS 2
C
section 747 3
ACTS INTERPRETATION ACT 1954 4
´
1. Section 36, definitions "industrial commissioner", "Industrial 5
Court", "industrial magistrate" and "Industrial Relations 6
Commission"-- 7
omit, insert-- 8
` "industrial commissioner" see the Industrial Relations Act 1999. 9
"industrial court" see the Industrial Relations Act 1999. 10
"industrial magistrate" see the Industrial Relations Act 1999. 11
"Industrial Magistrates Court" see the Industrial Relations Act 1999.'. 12
"industrial relations commission" see the Industrial Relations Act 1999.'. 13
AMBULANCE SERVICE ACT 1991 14
´
1. Section 13(2), `Workplace Relations Act 1997'-- 15
omit, insert-- 16
`Industrial Relations Act 1999'. 17
456
Industrial Relations
SCHEDULE 3 (continued)
ANTI-DISCRIMINATION ACT 1991 1
´
1. Section 4, definition "industrial agreement", `section 2.1 of the 2
Industrial Relations Act 1990'-- 3
omit, insert-- 4
`the Industrial Relations Act 1999'. 5
2. Section 4, definition "industrial relief", `section 11.11 of the 6
Industrial Relations Act 1990'-- 7
omit, insert-- 8
`the Industrial Relations Act 1999, chapter 6'. 9
3. Section 14(2), `section 13.107 or 13.108 of the Industrial Relations 10
Act 1990'-- 11
omit, insert-- 12
`the Industrial Relations Act 1999, section 99 or 100'. 13
4. Section 15(2), `section 13.107 or 13.108 of the Industrial Relations 14
Act 1990'-- 15
omit, insert-- 16
`the Industrial Relations Act 1999, section 99 or 100'. 17
5. Section 19(2), `division 4 or 6 of part 13 of the Industrial Relations 18
Act 1990'-- 19
omit, insert-- 20
`the Industrial Relations Act 1999, part 5 or 6'. 21
457
Industrial Relations
SCHEDULE 3 (continued)
6. Section 20(2), `division 4 or 6 of part 13 of the Industrial Relations 1
Act 1990'-- 2
omit, insert-- 3
`the Industrial Relations Act 1999, part 5 or 6'. 4
7. Section 32(3), `section 291(2)(b)(iv) of the Industrial Relations Act 5
1990'-- 6
omit, insert-- 7
`the Industrial Relations Act 1999, section 73(2)(k)'. 8
8. Section 106A(1)(f), `an Industrial Commissioner under the 9
Industrial Relations Act 1990'-- 10
omit, insert-- 11
`an industrial commissioner'. 12
9. Section 106A(2)(b), `1990'-- 13
omit, insert-- 14
`1999'. 15
SSOCIATIONS INCORPORATION ACT 1981 16
´A
1. Section 5(1)(b)(iv)-- 17
omit, insert-- 18
`(iv) an organisation under the Industrial Relations Act 1999 that 19
is incorporated because of the application of section 423207 20
of that Act; or'. 21
207 Industrial Relations Act 1999, section 423 (Incorporation on registration if not
already incorporated)
458
Industrial Relations
SCHEDULE 3 (continued)
RISBANE TRADES HALL MANAGEMENT ACT 1984 1
´B
1. Section 15(1), `1990'-- 2
omit, insert-- 3
`1999'. 4
UILDING AND CONSTRUCTION INDUSTRY 5
´B
(PORTABLE LONG SERVICE LEAVE) ACT 1991 6
1. Section 3, definition "award", paragraph (a)-- 7
omit, insert-- 8
`(a) an award under the Industrial Relations Act 1999; or'. 9
2. Section 3, definition "industrial agreement", `Workplace Relations 10
Act 1997'-- 11
omit, insert-- 12
`Industrial Relations Act 1999'. 13
3. Section 61, heading, `Workplace Relations Act'-- 14
omit, insert-- 15
`Industrial Relations Act'. 16
4. Section 61(1)(b), from `Workplace' to `part 4'-- 17
omit, insert-- 18
`Industrial Relations Act 1999, chapter 2, part 3'. 19
459
Industrial Relations
SCHEDULE 3 (continued)
5. Section 61(4), from `Workplace' to `part 4'-- 1
omit, insert-- 2
`Industrial Relations Act 1999, chapter 2, part 3'. 3
6. Section 61(4), `section 207'-- 4
omit, insert-- 5
`section 56'. 6
7. Section 62(8), from `Workplace' to `or 204'-- 7
omit, insert-- 8
`Industrial Relations Act 1999, section 46 or 49'. 9
8. Section 107, `Workplace Relations Act 1997'-- 10
omit, insert-- 11
`Industrial Relations Act 1999'. 12
CORRECTIVE SERVICES (ADMINISTRATION) ACT 13
´
1988 14
1. Section 34(5), definition "industrial award", `1990'-- 15
omit, insert-- 16
`1999'. 17
460
Industrial Relations
SCHEDULE 3 (continued)
RIMINAL JUSTICE ACT 1989 1
´C
1. Section 104(1), `Workplace Relations Act 1997'-- 2
omit, insert-- 3
`Industrial Relations Act 1999'. 4
DUCATION (WORK EXPERIENCE) ACT 1996 5
´E
1. Schedule, definition "law", `1990'-- 6
omit, insert-- 7
`1999'. 8
ELECTORAL ACT 1992 9
´
1. Schedule, section 287(1), definition "registered industrial 10
organisation"-- 11
omit, insert-- 12
` "registered industrial organisation" means-- 13
(a) a body registered as an industrial organisation, or a body whose 14
registration was continued or preserved, under the Industrial 15
Relations Act 1999; or 16
(b) an organisation registered under the Workplace Relations Act 17
1996 (Cwlth) or the law of another State or territory about the 18
registration of industrial organisations or unions.'. 19
461
Industrial Relations
SCHEDULE 3 (continued)
ELECTRICITY ACT 1994 1
´
1. Section 131(7), `1990'-- 2
omit, insert-- 3
`1999'. 4
QUAL OPPORTUNITY IN PUBLIC EMPLOYMENT 5
´E
ACT 1992 6
1. Section 3, definition "trade union"-- 7
omit, insert-- 8
` "trade union" means-- 9
`(a) an association registered as an industrial organisation of 10
employees, or an association whose registration was continued or 11
preserved, under the Industrial Relations Act 1999; or 12
(b) an organisation of employees under the Workplace Relations Act 13
1996 (Cwlth).'. 14
FUNERAL BENEFIT BUSINESS ACT 1982 15
´
1. Section 55(c) and (d)-- 16
omit, insert-- 17
`(c) a body registered as an industrial organisation, or a body whose 18
registration was continued or preserved, under the Industrial 19
Relations Act 1999; or'. 20
`(d) an association registered as an organisation under the Workplace 21
Relations Act 1996 (Cwlth);'. 22
462
Industrial Relations
SCHEDULE 3 (continued)
HEALTH RIGHTS COMMISSION ACT 1991 1
´
1. Section 3(1), definition "industrial organisation"-- 2
omit, insert-- 3
` "industrial organisation" means a body registered as an industrial 4
organisation, or a body whose registration was continued or preserved, 5
under the Industrial Relations Act 1999.'. 6
EALTH SERVICES ACT 1991 7
´H
1. Section 2, definition "award"-- 8
omit, insert-- 9
` "award" means an award under the Industrial Relations Act 1999 or 10
Workplace Relations Act 1996 (Cwlth).'. 11
2. Section 2, definition "industrial agreement", `1990'-- 12
omit, insert-- 13
`1999'. 14
NDUSTRIAL RELATIONS (PROTECTION FROM 15
´I
INVALIDITIES) ACT 1991 16
1. Section 4, definitions "Commonwealth Act", "counterpart federal 17
body", "federal organisation" and "organisation", `Industrial 18
Organisations Act 1997'-- 19
omit, insert-- 20
`Industrial Relations Act 1999'. 21
463
Industrial Relations
SCHEDULE 3 (continued)
2. Section 4, definitions "commission", "full court" and "registrar", 1
`Workplace Relations Act 1997'-- 2
omit, insert-- 3
`Industrial Relations Act 1999'. 4
3. Section 4, definition "previous act", `Industrial Relations Act 1990'-- 5
omit, insert-- 6
`Industrial Organisations Act 1997'. 7
4. Section 18, `31 December 1999'-- 8
omit, insert-- 9
`when the Industrial Relations Act 1999, section 604208 commences' 10
UDGES (SALARIES AND ALLOWANCES) ACT 1967 11
´J
1. Part 3A-- 12
omit, insert-- 13
`PART 3A--SALARIES AND ALLOWANCES FOR 14
THE INDUSTRIAL COURT AND COMMISSION 15
`Salary and allowances of the industrial court and commission 16
`3A.(1) The tribunal must, by determination, fix the rate of salary, and 17
the allowances and rates of allowances, payable to-- 18
(a) the president of the Industrial Court; and 19
(b) the vice president and other members of the industrial 20
commission. 21
208 Industrial Relations Act 1999, section 604 (Definitions for pt 14)
464
Industrial Relations
SCHEDULE 3 (continued)
`(2) However, the total of the annual rates of salary and allowances 1
payable must not be reduced by a determination.'. 2
2. Section 12(8)(b), `1990'-- 3
omit, insert-- 4
`1999'. 5
LIQUID FUEL SUPPLY ACT 1984 6
´
1. Section 24(3)(d), `1990'-- 7
omit, insert-- 8
`1999'. 9
LOCAL GOVERNMENT ACT 1993 10
´
1. Section 1151(3), `1990'-- 11
omit, insert-- 12
`1999'. 13
PARLIAMENTARY SERVICE ACT 1988 14
´
1. Section 4, definition "industrial agreement", `Industrial Relations 15
Act 1990'-- 16
omit, insert-- 17
`Industrial Relations Act 1999, schedule 5, definition "industrial 18
agreement" '. 19
465
Industrial Relations
SCHEDULE 3 (continued)
2. Section 4, definition "industrial award", `Industrial Relations Act 1
1990, section 5, definition "award" '-- 2
omit, insert-- 3
`Industrial Relations Act 1999, schedule 4, definition "award" '. 4
3. Section 49, `1990'-- 5
omit, insert-- 6
`1999'. 7
PASTORAL WORKERS' ACCOMMODATION ACT 8
´
1980 9
1. Section 5, definition "award"-- 10
omit, insert-- 11
` "award" means an award, industrial agreement, certified agreement or 12
QWA under the Industrial Relations Act 1999.'. 13
2. Section 30(1), `within the meaning of the Industrial Relations Act 14
1990'-- 15
omit. 16
3. Section 30(2), `constituted under the Industrial Relations Act 17
1990'-- 18
omit. 19
4. Section 30(3), `1990'-- 20
omit, insert-- 21
`1999'. 22
466
Industrial Relations
SCHEDULE 3 (continued)
POLICE SERVICE ADMINISTRATION ACT 1990 1
´
1. Section 1.4, definition "award", `1990'-- 2
omit, insert-- 3
`1999'. 4
2. Section 1.4, definition "industrial agreement"-- 5
omit, insert-- 6
` "industrial agreement" means-- 7
(a) an industrial agreement continued in force under the Industrial 8
Relations Act 1999; or 9
(b) a certified agreement under the Industrial Relations Act 1999.'. 10
3. Section 5.15, `1990'-- 11
omit, insert-- 12
`1999'. 13
RIVATE EMPLOYMENT AGENCIES ACT 1983 14
´P
1. Section 5, definition "award"-- 15
omit, insert-- 16
` "award" means an award, industrial agreement, certified agreement or 17
QWA under the Industrial Relations Act 1999.'. 18
2. Section 41, `1990'-- 19
omit, insert-- 20
`1999'. 21
467
Industrial Relations
SCHEDULE 3 (continued)
PUBLIC SERVICE ACT 1996 1
´
1. Section 106(1), `Workplace Relations Act 1997'-- 2
omit, insert-- 3
`Industrial Relations Act 1999'. 4
2. Section 116(2), `Workplace Relations Act 1997'-- 5
omit, insert-- 6
`Industrial Relations Act 1999'. 7
3. Section 116(3), `Workplace Relations Act 1997, section 290'-- 8
omit, insert-- 9
`Industrial Relations Act 1999, section 276209'. 10
4. Section 116A, heading, `Workplace Relations Act'-- 11
omit, insert-- 12
`Industrial Relations Act'. 13
5. Section 116A(1), `Workplace Relations Act 1997'-- 14
omit, insert-- 15
`Industrial Relations Act 1999'. 16
6. Schedule 3, definitions "award", "industrial agreement" and 17
"reserved matter"-- 18
omit. 19
209 Section 276 (Power to amend or void contracts)
468
Industrial Relations
SCHEDULE 3 (continued)
7. Schedule 3-- 1
insert-- 2
` "award" see the Industrial Relations Act 1999, schedule 5, dictionary. 3
"industrial agreement" means-- 4
(a) an industrial agreement under the Industrial Relations Act 1999; 5
or 6
(b) a certified agreement under the Industrial Relations Act 1999. 7
"industrial matter" see the Industrial Relations Act 1999, section 7.210'. 8
8. Schedule 3, definition "industrial relations Minister", `Workplace 9
Relations Act 1997'-- 10
omit, insert-- 11
`Industrial Relations Act 1999'. 12
QUEENSLAND TOURIST AND TRAVEL 13
´
CORPORATION ACT 1979 14
1. Section 16(2) and (3), `1990'-- 15
omit, insert-- 16
`1999'. 17
ACING AND BETTING ACT 1980 18
´R
1. Section 13(2), `1990'-- 19
omit, insert-- 20
`1999'. 21
210 Section 7 (What is an industrial matter)
469
Industrial Relations
SCHEDULE 3 (continued)
RETIREMENT VILLAGES ACT 1988 1
´
1. Section 51(6), `1990'-- 2
omit, insert-- 3
`1999'. 4
UPERANNUATION (STATE PUBLIC SECTOR) ACT 5
´S
1990 6
1. After section 30B-- 7
insert-- 8
`No appeal to industrial commission 9
`30C. No appeal lies to the industrial commission in relation to any 10
decision under this Act.'. 11
RADING (ALLOWABLE HOURS) ACT 1990 12
´T
1. Section 4, definition "Chief Industrial Inspector"-- 13
omit, insert-- 14
` "chief industrial inspector" means the chief inspector under the 15
Industrial Relations Act 1999.'. 16
2. Section 4, definition "Commissioner"-- 17
omit, insert-- 18
` "commissioner" means an industrial commissioner.'. 19
470
Industrial Relations
SCHEDULE 3 (continued)
3. Section 4, definition "Industrial Commission order", `Industrial 1
Relations Act 1990'-- 2
omit, insert-- 3
`Industrial Conciliation and Arbitration Act 1961'. 4
4. Section 4, definition "industrial inspector" or "inspector"-- 5
omit, insert-- 6
` "industrial inspector" or "inspector" means an inspector under the 7
Industrial Relations Act 1999.'. 8
5. Section 4, definition "industrial organisation"-- 9
omit, insert-- 10
` "industrial organisation" means a body registered as an industrial 11
organisation, or a body whose registration was continued or preserved, 12
under the Industrial Relations Act 1999.'. 13
6. Section 4, definition "industrial registrar', `1990'-- 14
omit, insert-- 15
`1999'. 16
7. Section 43(4), `1990'-- 17
omit, insert-- 18
`1999'. 19
471
Industrial Relations
SCHEDULE 3 (continued)
VOCATIONAL EDUCATION, TRAINING AND 1
´
EMPLOYMENT ACT 1991 2
1. Section 4, definition "employer", `1990'-- 3
omit, insert-- 4
`1999'. 5
2. Section 4, definition "industrial award"-- 6
omit. 7
3. Section 4, definition "industrial inspector"-- 8
omit. 9
4. Section 4, definition "industrial instrument"-- 10
omit. 11
5. Section 4, definition "industrial organisation"-- 12
omit, insert-- 13
` "industrial organisation" means-- 14
(a) a body registered as an industrial organisation, or a body whose 15
registration was continued or preserved, under the Industrial 16
Relations Act 1999; or 17
(b) an organisation under the Workplace Relations Act 1996 18
(Cwlth).'. 19
6. Section 5-- 20
omit. 21
472
Industrial Relations
SCHEDULE 3 (continued)
7. Section 9(p)(i)-- 1
omit, insert-- 2
`(i) the Industrial Relations Act 1999; or'. 3
8. Section 76-- 4
omit. 5
9. Section 80-- 6
omit. 7
10. Part 3, division 4-- 8
omit. 9
11. Section 90, heading-- 10
omit, insert-- 11
`Effect of death or retirement of partner or transfer of business'. 12
12. Section 90-- 13
insert-- 14
`(3) If an apprentice or trainee becomes an employee of an employer (the 15
"new employer") because of the transfer of a business to the new employer 16
from another employer, the training agreement is taken to be assigned to the 17
new employer. 18
`(4) The new employer must give the State Training Council written 19
notice of the name of the new employer within 21 days after the transfer.'. 20
13. Section 92(1)(b)-- 21
omit. 22
473
Industrial Relations
SCHEDULE 3 (continued)
14. Section 92(2), definition "time and wages record", `Workplace 1
Relations Act 1997, section 391'-- 2
omit, insert-- 3
`Industrial Relations Act 1999, section 363'. 4
15. Section 98-- 5
omit, insert-- 6
`Additional powers in relation to cancellation of training agreements 7
`98.(1) In addition to the powers given under sections 96 and 97, the 8
State Training Council may exercise a power under this section. 9
`(2) If the council finds a party to the agreement has purported to cancel 10
the agreement other than in accordance with this Act, it may order-- 11
(a) the employer to resume training the person undertaking training 12
under the agreement; or 13
(b) the employee to resume undertaking the training under the 14
agreement. 15
`(3) If the council considers it would be impracticable for training under 16
the agreement to continue, it may order the agreement be cancelled. 17
`(4) A person must not contravene an order under this section. 18
Maximum penalty for subsection (4)--50 penalty units.'. 19
16. Section 99(2) and (3)-- 20
omit. 21
17. Sections 100 to 104-- 22
omit. 23
474
Industrial Relations
SCHEDULE 3 (continued)
18. Section 106(2)-- 1
omit. 2
19. Section 111(1)(b)-- 3
omit. 4
20. Section 112(2)(a)-- 5
omit, insert-- 6
`(a) whether the requirements of this Act, or any order, direction or 7
requisition made or issued under this Act, or the provisions of 8
any training agreement are being complied with; or'. 9
21. Section 120(3)(b)(ii), `or an industrial inspector'-- 10
omit. 11
22. Section 121-- 12
omit. 13
23. Section 123(1), after `this Act'-- 14
insert-- 15
`or the Industrial Relations Act 1999'. 16
24. Section 123(1)(a)(iii)-- 17
omit. 18
25. Section 123(1)(h) and (i)-- 19
omit. 20
475
Industrial Relations
SCHEDULE 3 (continued)
26. Section 124, heading-- 1
omit, insert-- 2
`Appeals'. 3
27. Section 124(1), from `(other than' to `section 87(9))'-- 4
omit. 5
28. Section 124(3) to (6)-- 6
omit, insert-- 7
`(3) A person aggrieved by a decision of the commission may appeal 8
to-- 9
(a) for a decision relating to the cancellation of a training 10
agreement--the Industrial Relations Commission; or 11
(b) an industrial magistrate. 12
`(4) An appeal under subsection (3)(a) must be in writing given to the 13
Industrial Registrar-- 14
(a) 21 days after the day written notice of the decision is given to the 15
person aggrieved; or 16
(b) a further period allowed at any time by the Industrial Relations 17
Commission. 18
`(5) An appeal under subsection (3)(b) must be in writing given to the 19
clerk of the Industrial Magistrates Court within-- 20
(a) 21 days after the day written notice of the decision is given to the 21
person aggrieved; or 22
(b) a further period allowed at any time by an industrial magistrate. 23
`(6) The commission, industrial magistrate or Industrial Relations 24
Commission may hear and decide the appeal. 25
`(6A) In deciding the appeal, the commission, industrial magistrate or 26
Industrial Relations Commission may order the cancellation of the training 27
476
Industrial Relations
SCHEDULE 3 (continued)
agreement if, and only if, it would be impracticable for training under the 1
agreement to continue.'. 2
29. Section 124(8), `Minister'-- 3
omit, insert-- 4
`Industrial Relations Commission'. 5
30. Section 124(11), from `an industrial magistrate' to `industrial 6
court'-- 7
omit, insert-- 8
`the Industrial Relations Commission or an industrial magistrate may 9
appeal to the Industrial Court'. 10
31. Section 124(12), `or the Minister'-- 11
omit, insert-- 12
`, Industrial Relations Commission or industrial magistrate'. 13
32. After section 124-- 14
insert-- 15
`Additional powers on appeal 16
`124A.(1) If an industrial magistrate or the Industrial Relations 17
Commission hears an appeal, the industrial magistrate or Industrial 18
Relations Commission may also order-- 19
(a) the employer to pay the employee reasonable compensation; or 20
(b) the employee to repay an amount paid to the employee by the 21
employer on the purported cancellation. 22
`(2) The industrial magistrate or Industrial Relations Commission must 23
not award an amount of compensation that is more than the wages the 24
employer would have been liable to pay the employee for the 6 months 25
477
Industrial Relations
SCHEDULE 3 (continued)
immediately after the purported cancellation. 1
`(3) The industrial magistrate or Industrial Relations Commission must 2
take into account any amount paid to the employee by the employer on the 3
purported cancellation or cancellation. 4
`(4) If satisfied an employer has purported to cancel the agreement other 5
than in accordance with this Act, the industrial magistrate or Industrial 6
Relations Commission may order the employer to pay the employee an 7
amount of not more than the monetary value of 135 penalty units. 8
`(5) The industrial magistrate or Industrial Relations Commission may 9
make the order in addition to an order for training to be resumed. 10
`(6) A person must not contravene an order under this section. 11
Maximum penalty--50 penalty units. 12
`(7) If an employer wilfully contravenes an order for training to be 13
resumed, the industrial magistrate or Industrial Relations Commission 14
may-- 15
(a) further order the employer to pay the employee-- 16
(i) an amount of not more than the monetary value of 17
50 penalty units; and 18
(ii) an amount as remuneration for lost wages; and 19
(b) make further orders until the employer complies with the order.'. 20
HISTLEBLOWERS PROTECTION ACT 1994 21
´W
1. Section 47(1)(a) and (b) and (5), `1990'-- 22
omit, insert-- 23
`1999, section 5211'. 24
211 Industrial Relations Act 1999, section 5 (Who is an employee)
478
Industrial Relations
SCHEDULE 3 (continued)
2. Section 47(3), `1990, section 42'-- 1
omit, insert-- 2
`1999, section 277212'. 3
WORKCOVER QUEENSLAND ACT 1996 4
´
1. Sections 399(10) and 404(10), `1990, section 40 or part 12, 5
division 5.'-- 6
omit, insert-- 7
`1999, section 276 or chapter 3.213'. 8
2. Section 528(1), `Industrial Relations Act'-- 9
omit, insert-- 10
`Industrial Relations Act 1999'. 11
WORKPLACE HEALTH AND SAFETY ACT 1995 12
´
1. Section 66, definition "union", `Industrial Organisations Act 1997'-- 13
omit, insert-- 14
`Industrial Relations Act 1999'. 15
16
212 Industrial Relations Act 1999, section 277 (Power to grant injunctions)
213 Industrial Relations Act 1999, section 276 (Power to amend or void contracts) and
chapter 3 (Dismissals)
479
Industrial Relations
SCHEDULE 4 1
¡
AMENDMENT OF MODEL ELECTION RULES 2
section 711(4)(a) 3
1. Section 1, definition "candidates' statement"-- 4
omit. 5
2. Section 1, definition "voter"-- 6
omit, insert-- 7
` "voter" means a person-- 8
`(a) was a financial member from 60 days before nominations for the 9
election opened to when nominations close; and 10
(b) whose name is stated on the roll under section 11 or 13.'. 11
3. Section 4-- 12
omit, insert-- 13
`Opening and closing days for nominations 14
`4.(1) The manager of the election must fix the opening day and closing 15
day for nominations for office. 16
`(2) The closing day must be at least 28 days after notice is given under 17
section 6. 18
`(3) Nominations open at midday on the opening day and close at 19
midday on the closing day.'. 20
4. Section 6(2)(a) and (b)-- 21
omit, insert-- 22
`(a) the opening day for nominations; and 23
480
Industrial Relations
SCHEDULE 4 (continued)
(b) the closing day for nominations; and 1
(c) that nominations for office-- 2
(i) open at midday on the opening day; and 3
(ii) close at midday on the closing day; and'. 4
5. Section 6(2)(c) and (d)-- 5
renumber as section 6(2)(d) and (e). 6
6. Section 6(2)(e)-- 7
omit, insert-- 8
`(f) that only a person who was a financial member for at 9
least 60 days before the time for nominations to open may vote in 10
the election.'. 11
7. Section 12(2), words after `subsection (1)'-- 12
omit, insert-- 13
`inspect the roll, free of charge.'. 14
8. Section 12-- 15
insert-- 16
`(3) If, during the term stated in subsection (1), a candidate or member 17
asks for a copy of the roll or a stated part of the roll, the manager must give 18
the person the copy, free of charge.'. 19
9. Section 14-- 20
omit. 21
481
Industrial Relations
SCHEDULE 4 (continued)
10. Section 16(1), `each candidate's statement and'-- 1
omit. 2
3
482
Industrial Relations
SCHEDULE 5 1
¡
DICTIONARY 2
section 4 3
"1990 Act" means the repealed Industrial Relations Act 1990. 4
"accounting deficiency", for chapter 12, part 12, see section 560(d). 5
"accounting records", for chapter 12, part 12, see section 554(3). 6
"accounts", for chapter 12, see section 555. 7
"act", for chapter 12, part 14, see section 604. 8
"additional approval requirements", for chapter 6, part 2, see 9
section 187. 10
"administer", for chapter 8, part 6, see section 316. 11
"adoption leave", for chapter 2, part 2, see section 17. 12
"amalgamated organisation", for chapter 12, part 15, see section 616. 13
"amalgamation", for chapter 12, see section 409. 14
"amalgamation ballot", for chapter 12, part 15, see section 616. 15
"amalgamation day", for chapter 12, part 15, see section 616. 16
"amendment agreement", for chapter 6, part 2, see section 197. 17
"ancillary document", for chapter 6, part 2, see section 197. 18
"appointed member" means-- 19
(a) for schedule 2, part 4, see schedule 2, part 4, section 11; and 20
(b) for schedule 2, part 5, see schedule 2, part 5, section 15. 21
"apprentice" means a person who is employed or used in an 22
apprenticeship calling-- 23
(a) if an application for the person's registration as an apprentice has 24
been made under the Vocational Education, Training and 25
483
Industrial Relations
SCHEDULE 5 (continued)
Employment Act 1991--until the application is approved or 1
refused; or 2
(b) if the application for the person's registration as an apprentice is 3
approved; or 4
(c) if the person is under 21 years--even if an application for the 5
person's registration as an apprentice has not been made. 6
"apprenticeship" means an approved training scheme under the 7
Vocational Education, Training and Employment Act 1991, 8
section 68(2)(b). 9
"appropriately qualified", for a person to whom a power under this Act 10
may be delegated, includes having the qualifications, experience or 11
standing appropriate to exercise the power. 12
13
Example of `standing'--
14
A person's classification level in the public service.
"approval notice", for chapter 6, part 2, see section 187. 15
"approved apprenticeship" means an apprenticeship approved by an 16
approving authority for sections 162 and 211. 17
"approved superannuation fund" means a complying superannuation 18
fund-- 19
(a) nominated in an industrial instrument; or 20
(b) agreed between an employer and employee under section 405. 21
"approved traineeship" means a traineeship approved by an approving 22
authority for sections 162 and 211, other than a traineeship mentioned 23
in-- 24
(a) the Training Wage Award--State; or 25
(b) the National Training Wage Award 1994. 26
"approved training" means training for an apprentice or trainee that is 27
approved by the approving authority. 28
"approving authority" means the Vocational Education, Training and 29
Employment Commission established under the Vocational 30
Education, Training and Employment Act 1991. 31
484
Industrial Relations
SCHEDULE 5 (continued)
"assignment", for chapter 11, part 2, see section 376. 1
"association", for chapter 12, see section 409. 2
"attendance notice" means a notice in the approved form issued by the 3
court, the commission, an Industrial Magistrates Court or the registrar 4
requiring a person to attend at a stated time and place until excused, for 5
1 or more of the following-- 6
(a) to give evidence; 7
(b) to produce a stated document or thing; 8
(c) another purpose specified in the notice. 9
"attempt to commit an offence" see Criminal Code, section 4. 10
"audit report", for chapter 12, see section 409. 11
"Australian commission" means the Australian Industrial Relations 12
Commission. 13
"authorised industrial officer", for chapter 11, part 1, see section 363. 14
"award"-- 15
(a) generally, means-- 16
(i) an award made under chapter 5 or continued in force under 17
this Act; or 18
(ii) an award as amended under chapter 5; and 19
(b) for chapter 6, part 1, division 3 and part 2, division 6--includes 20
an award under the Commonwealth Act, part VIE. 21
"ballot records", for chapter 12, see section 409. 22
"bargaining agent", for chapter 6, part 2, see section 187. 23
"branch", for chapter 12, see section 409. 24
"business hours" of an employer means the hours of operation of the 25
employer's business. 26
"calling" means-- 27
(a) a craft, manufacture, occupation, trade, undertaking or vocation; 28
or 29
485
Industrial Relations
SCHEDULE 5 (continued)
(b) a section of something mentioned in paragraph (a). 1
"candidate", for chapter 12, part 9, see section 514. 2
"casual vacancy", for chapter 12, see section 409. 3
"certified agreement" means a written agreement under chapter 6, part 1 4
about the relationship between the employer and employees. 5
"certified copy", for chapter 6, part 2, see section 187. 6
"child", for chapter 2, part 2, see section 17. 7
"claim for wages" means a claim-- 8
(a) for an employee's wages payable under an industrial instrument 9
or permit; or 10
(b) for an employee's wages payable under an agreement in which 11
wages are payable at a price or rate higher than that fixed by a 12
relevant industrial instrument or permit; or 13
(c) for an employee's wages payable under an agreement in which 14
wages are payable at a price or rate that is not fixed by a relevant 15
industrial instrument or permit; or 16
(d) for amounts payable, with an employee's written consent, from 17
an employee's wages; or 18
(e) under chapter 11, part 2, division 2; or 19
(f) for amounts payable for a tool allowance under section 138; or 20
(g) for damages for contravention of an agreement made under an 21
industrial instrument; or 22
(h) for damages suffered by an employee because the employer fails 23
to pay the employee's wages; or 24
(i) for compensation under section 83. 25
"collective body", for chapter 12, part 14, see section 604. 26
"collegiate electoral system", for chapter 12, part 4, see section 439. 27
"commission" see section 255. 28
"commissioner" see section 256. 29
486
Industrial Relations
SCHEDULE 5 (continued)
"commissioner administrator" see section 259. 1
"committee meeting", for chapter 12, see section 409. 2
"Commonwealth Act" means the Workplace Relations Act 1996 (Cwlth). 3
"Commonwealth award" means an award made under the 4
Commonwealth Act. 5
"complying superannuation fund" see Superannuation Industry 6
(Supervision) Act 1993 (Cwlth). 7
"conduct", for chapter 4, see section 102. 8
"conscientious beliefs", for chapter 4, see section 102. 9
"constituent part", for chapter 12, part 15, see section 616. 10
"construction" means building and construction, civil and engineering 11
construction or demolition work. 12
"continuous service"-- 13
(a) for chapter 2, part 2, see section 18; and 14
(b) for chapter 2, part 3, see section 42. 15
"contracted work", for chapter 11, part 2, see section 376. 16
"convicted of a disqualifying offence", for chapter 12, part 9, see 17
section 514. 18
"convicted person", for chapter 12, part 9, see section 515. 19
"corporation", for chapter 12, see section 410. 20
"counterpart federal body", for chapter 12, see section 411. 21
"court" see section 242. 22
"decision" means-- 23
(a) a decision of the court, the commission, a magistrate or the 24
registrar; or 25
(b) an award, declaration, determination, direction, judgment, order or 26
ruling; or 27
487
Industrial Relations
SCHEDULE 5 (continued)
(c) an agreement approved, certified, or amended by the commission 1
and an extension of the agreement. 2
"defect", for chapter 12, see section 409. 3
"demarcation dispute" includes-- 4
(a) a dispute arising between 2 or more organisations, or within an 5
organisation, about the rights, status or functions of members of 6
the organisations or organisation in relation to the employment of 7
the members; and 8
(b) a dispute arising between employers and employees, or between 9
members of different organisations, about the demarcation of 10
functions of employees or classes of employees; and 11
(c) a dispute about the representation under this Act of the industrial 12
interests of employees by an employee organisation. 13
"demarcation dispute undertaking", for chapter 12, see section 409. 14
"deputy registrar" see section 300. 15
"deregistered organisation", for chapter 12, see section 409. 16
"deregistration", for chapter 12, see section 409. 17
"deregistration order", for chapter 12, part 16, see section 638. 18
"designated award", in relation to a person to whom a certified agreement 19
or QWA will apply, means an award that the commission under 20
section 163, or the commission under section 212, has decided is 21
appropriate for deciding whether a certified agreement or QWA passes 22
the no-disadvantage test. 23
"direct voting system", for chapter 12, part 4, see section 438. 24
"discrimination" means discrimination-- 25
(a) that would contravene the Anti-Discrimination Act 1991; or 26
(b) on the basis of sexual preference; or 27
(c) on the basis of family responsibilities. 28
"dismiss", for chapter 3, part 5, see section 91. 29
488
Industrial Relations
SCHEDULE 5 (continued)
"disqualification period", for chapter 12, part 9, see section 522(1). 1
"disqualifying offence", for chapter 12, part 9, see section 514. 2
"doctor's certificate" means a certificate signed by a person registered as a 3
doctor under the Medical Act 1939 or a law of the Commonwealth or 4
another State that substantially corresponds to the Medical Act 1939. 5
"dual commissioner" see section 306. 6
"EFA" means an enterprise flexibility agreement continued in force under 7
this Act. 8
"elected", for chapter 12, part 9, see section 514. 9
"election", for chapter 12 see section 409. 10
"electoral commission", for chapter 12, see section 409. 11
"electoral officer", for chapter 12, see section 409. 12
"eligibility rules", for chapter 12, see section 409. 13
"eligible association" means an association that is eligible to be, but is not, 14
registered as an organisation. 15
"eligible employee" means an employee who, under a relevant industrial 16
instrument, is an eligible employee for entitlement to occupational 17
superannuation benefits. 18
"eligible rollover fund" see Superannuation Industry (Supervision) Act 19
1993 (Cwlth). 20
"employee" means-- 21
(a) generally--see section 5; and 22
(b) for chapter 6, part 2--see also section 188(2). 23
"employee organisation", for chapter 12, see section 409. 24
"employer" means-- 25
(a) generally--see section 6; and 26
(b) for chapter 6, part 1, includes-- 27
(i) a multi-employer; and 28
489
Industrial Relations
SCHEDULE 5 (continued)
(ii) for a project--an organisation of employers; and 1
(c) for chapter 6, part 2--see also section 188(2); and 2
(d) for chapter 11, part 2--see also section 376. 3
"employer organisation", for chapter 12, see section 409. 4
"engage in" conduct for a prohibited reason, for chapter 4, see section 104. 5
"equal remuneration for work of equal or comparable value", for 6
chapter 2, part 5, see section 59. 7
"exempted person", for chapter 4, see section 102. 8
"exemption certificate", for chapter 4, see section 102. 9
"exercising", for chapter 8, part 6, see section 316. 10
"existing employee", for chapter 6, part 2, see section 187. 11
"existing organisation", for chapter 12, part 15, see section 616. 12
"extension agreement", for chapter 6, part 2, see section 187. 13
"family responsibilities" of an employee means the employee's 14
responsibilities to care for or support-- 15
(a) a dependent child of the employee; or 16
(b) any other immediate family member who is in need of care or 17
support. 18
"federal organisation", for chapter 12, see section 409. 19
"file"-- 20
(a) for chapter 6, part 2, see section 187. 21
(b) for chapter 12, see section 409. 22
"filing receipt", for chapter 6, part 2, see section 187. 23
"filing requirements", for chapter 6, part 2, see section 187. 24
"financial affairs", for chapter 12, part 12, see section 551. 25
"financial hardship payment", for chapter 12, see section 409. 26
"financial year", for chapter 12, part 12, see section 552. 27
490
Industrial Relations
SCHEDULE 5 (continued)
"fixed rate", for chapter 11, part 2, division 3, see section 376. 1
"full bench" see section 256. 2
"full pay" means payment in full for the time that an employee is absent 3
from work. 4
"general meeting", for chapter 12, see section 409. 5
"group training scheme" see the Vocational Education, Training and 6
Employment Act 1991, section 4. 7
"immediate family" includes-- 8
(a) the employee's spouse; and 9
(b) a child, ex-nuptial child, stepchild, adopted child, ex-foster child, 10
parent, grandparent, grandchild or sibling of the employee or 11
employee's spouse. 12
"industrial action" means-- 13
(a) generally--a lockout or strike; and 14
(b) for chapter 4--see also section 103. 15
"industrial agreement" means an industrial agreement continued in force 16
under this Act. 17
"industrial association", for chapter 4, see section 102. 18
"industrial authority" means a commission, court, board, tribunal or 19
other entity having authority under the law of the Commonwealth or 20
another State to exercise powers of conciliation or arbitration for 21
industrial matters or industrial disputes. 22
"industrial body", for chapter 4, see section 102. 23
"industrial cause" includes an industrial matter and industrial dispute. 24
"industrial conduct ground", for chapter 12, part 16, see section 637. 25
"industrial dispute" means-- 26
(a) a dispute, including a threatened or probable dispute, about an 27
industrial matter; or 28
491
Industrial Relations
SCHEDULE 5 (continued)
(b) a situation that is likely to give rise to a dispute about an industrial 1
matter. 2
"industrial instrument" means an award, certified agreement, QWA, 3
industrial agreement, EFA or order under chapter 5, parts 5 and 6. 4
"industrial law", for chapter 4, see section 102. 5
"industrial matter" see section 7. 6
"industrial relations commission" see section 255. 7
"industrial tribunal", for chapter 9, division 5, see section 345. 8
"initial day" means-- 9
(a) for a certified agreement--the day on which it was certified; or 10
(b) for a QWA--the day on which it was approved. 11
"injured employee", for chapter 3, part 5, see section 91. 12
"injury", for chapter 3, part 5, see section 91. 13
"inspector" means a person, including the chief inspector, who holds an 14
appointment as an inspector under section 350. 15
"invalid reason", for a dismissal, see section 73(2). 16
"invalidity", for chapter 12, part 14, see section 604. 17
"IO Act" means the repealed Industrial Organisations Act 1997. 18
"irregularity", for chapter 12, see section 409. 19
"joint session" means proceedings in which a member sits with a member 20
of an industrial authority. 21
"leave application", for chapter 12, part 9, see section 514. 22
"lockout" means an employer's action in closing a workplace, or 23
suspending or discontinuing the employer's business, or any branch of 24
it, or an employer's failure to continue to employ a number of 25
employees, with intent-- 26
(a) to compel or induce employees to agree to employment 27
conditions or to comply with demands made on them by the 28
employer, or another employer, contrary to this Act; or 29
492
Industrial Relations
SCHEDULE 5 (continued)
(b) to cause loss or inconvenience to employees; or 1
(c) to incite, instigate, aid, abet or procure another lockout; or 2
(d) to help another employer to compel or induce employees to agree 3
to employment conditions or comply with demands made by the 4
other employer. 5
"long adoption leave", for chapter 2, part 2, see section 17. 6
"long parental leave", for chapter 2, part 2, see section 17. 7
"magistrate" see section 290. 8
"management committee"-- 9
(a) for chapter 4, part 1, see section 102; and 10
(b) for chapter 12, see section 409. 11
"maternity leave", for chapter 2, part 2, see section 17. 12
"meat works" means a place where livestock are slaughtered or meat is 13
boned. 14
"member" of the commission means the president, the vice president, the 15
commissioner administrator or a commissioner. 16
"member"-- 17
(a) for schedule 2, part 4, see schedule 2, part 4, section 11; and 18
(b) for schedule 2, part 5, see schedule 2, part 5, section 15. 19
"members", for chapter 12, part 16, see section 637. 20
"member's liability", for chapter 12, part 10, division 5, see section 541. 21
"members register", for chapter 12, see section 409. 22
"membership subscription", for chapter 12, see section 409. 23
"mine", for chapter 11, part 2, division 4, see section 376. 24
"model election rules", for chapter 12, see section 409. 25
"mortgagee", for chapter 11, part 2, division 4, see section 376. 26
"mortgagor", for chapter 11, part 2, division 4, see section 376. 27
493
Industrial Relations
SCHEDULE 5 (continued)
"multi-employer" means 2 or more associated employers, whether 1
associated because they-- 2
(a) are related corporations; or 3
(b) are engaged in a joint venture or common enterprise; or 4
(c) undertake similar work. 5
"negotiating party" see section 148. 6
"new business", for chapter 6 part 1, means the ongoing operation, once 7
established, of a single business that the employer-- 8
(a) proposes to establish at a new workplace; or 9
(b) is establishing at a new workplace; or 10
(c) is relocating to a new workplace; 11
but does not include the construction of the new workplace. 12
"new employee", for chapter 6, part 2, see section 187. 13
"newly registered organisation", for chapter 12, part 15, see section 616. 14
"nominal expiry date"-- 15
(a) of a certified agreement--see section 156; and 16
(b) of a QWA--see section 194. 17
"obstruct" includes assault, hinder, intimidate, resist and threaten to 18
obstruct. 19
"office", for chapter 12, see section 412. 20
"officer"-- 21
(a) of the court or commission, see sections 304 and 334(4); and 22
(b) of an organisation, or branch of an organisation, see section 409. 23
"officers register", for chapter 12, see section 409. 24
"ordinary election", for chapter 12, see section 409. 25
"ordinary rate" means the rate payable for ordinary time under an 26
industrial instrument. 27
494
Industrial Relations
SCHEDULE 5 (continued)
"organisation"-- 1
(a) generally--see section 409; and 2
(b) for chapter 12, part 14, see also section 604. 3
"outworker" means a person engaged, for someone else's calling or 4
business, in or about a private residence or other premises that are not 5
necessarily business or commercial premises, to-- 6
(a) pack, process, or work on articles or material; or 7
(b) carry out clerical work. 8
"owner", for chapter 2, part 3, see section 42. 9
"parental leave", for chapter 2, part 2, see section 17. 10
"party"-- 11
(a) for an industrial instrument or permit--includes a person bound 12
by the instrument or permit; or 13
(b) for chapter 6, part 2--see section 187. 14
"pay" an employee includes pay, with the employee's written consent, on 15
account of the employee. 16
"pay equity" means equal remuneration for men and women workers for 17
work of equal or comparable value. 18
"penalty provision"-- 19
(a) for chapter 6, part 1, division 7--see section 182; and 20
(b) for chapter 6, part 2, division 8--see section 218. 21
"period between seasons", for chapter 2, part 3, see section 42. 22
"period of operation", for chapter 6, part 2, see section 195. 23
"permit" means-- 24
(a) a students permit; or 25
(b) an aged or infirm persons permit. 26
"person dissatisfied" with a decision in proceedings means-- 27
(a) a party to the proceedings; or 28
495
Industrial Relations
SCHEDULE 5 (continued)
(b) a person bound by the decision; or 1
(c) if an inspector started the proceedings--any inspector. 2
"pieceworker" means a person employed in a calling on piecework rates. 3
"place" means-- 4
(a) any land, building, structure, vehicle, vessel or aircraft; or 5
(b) part of anything mentioned in paragraph (a). 6
"postal ballot", for chapter 12, see section 409. 7
"presentation meeting", for chapter 12, part 12, see section 565. 8
"president"-- 9
(a) see section 243; and 10
(b) for chapter 12, see section 409. 11
"prime contractor", for chapter 11, part 2, see section 376. 12
"prohibited conduct", for chapter 4, see section 102. 13
"prohibited reason", for chapter 4, part 1, see section 104. 14
"project", for chapter 6, part 1, includes construction. 15
"project agreement" means a certified agreement for a project or a 16
proposed project. 17
"proposed amalgamated organisation", for chapter 12, part 15, see 18
section 616. 19
"proposed deregistering organisation", for chapter 12, part 15, see 20
section 616. 21
"protected industrial action" means industrial action protected under 22
section 174. 23
"public holiday" means-- 24
(a) the following days-- 25
· New Year's Day (1 January) 26
· Australia Day (26 January) 27
496
Industrial Relations
SCHEDULE 5 (continued)
· Good Friday 1
· Easter Saturday (the day after Good Friday) 2
· Easter Monday (the Monday after Good Friday) 3
· Anzac Day (25 April) 4
· Labour Day (the first Monday in May) 5
· Sovereign's birthday (the second Monday in June) 6
· Christmas Day (25 December) 7
· Boxing Day (26 December); or 8
(b) a day appointed under the Holidays Act 1983 to be a substitute 9
holiday for an day mentioned in paragraph (a); or 10
(c) a show holiday. 11
"public sector unit" see Public Service Act 1996, section 20.214 12
"QWA" means a Queensland workplace agreement under chapter 6, part 2, 13
see sections 188 and 207. 14
"QWA date", for chapter 6, part 2, see section 187. 15
"rate", for chapter 11, part 2, division 3, see section 376. 16
"record", for chapter 11, part 1, see section 363. 17
"records" means any document containing data. 18
"reduced wages" means wages at a rate less than that provided for under a 19
relevant industrial instrument or permit. 20
"refusal notice", for chapter 6, part 2, see section 187. 21
"register", for chapter 12, see section 409. 22
"registrar" see section 297. 23
"registrar's auditor", for chapter 12, part 12, see section 575. 24
"registration", for chapter 12, see section 409. 25
214 Public Service Act 1996, section 20 (What is a "public sector unit")
497
Industrial Relations
SCHEDULE 5 (continued)
"regular part-time employee" means an employee who-- 1
(a) works less than full-time ordinary working hours; and 2
(b) has reasonably predictable hours of work; and 3
(c) is entitled to receive, on a proportionate basis, equivalent wages 4
and employment conditions to those specified in an award for 5
full-time employees who do the same type of work. 6
"relevant award", in relation to a person to whom a certified agreement or 7
QWA will apply, means an award-- 8
(a) regulating any employment condition of persons engaged in the 9
same kind of work as that of persons under the agreement; and 10
(b) that, immediately before the initial day of the agreement, binds the 11
person's employer. 12
"relevant employee", for a certified agreement, means an employee whose 13
employment is, or will be, subject to the agreement. 14
"relevant or designated award", for chapter 6, part 2, see section 187. 15
"repealed Act" means the Workplace Relations Act 1997. 16
"representative", for chapter 4, part 1, see section 102. 17
"required number", for chapter 12, see section 409. 18
"season", for chapter 2, part 3, see section 42. 19
"seasonal employment" means employment related to a season. 20
"secretary", for chapter 12, see section 409. 21
"service", for chapter 2, part 6, see section 67. 22
"short adoption leave", for chapter 2, part 2, see section 17. 23
"short parental leave", for chapter 2, part 2, see section 17. 24
"small organisation", for chapter 12, part 16, see section 637. 25
"spouse" of an employee includes-- 26
(a) a former spouse; and 27
498
Industrial Relations
SCHEDULE 5 (continued)
(b) a de facto spouse, including a spouse of the same sex as the 1
employee. 2
"State peak council" means an association that is effectively representative 3
of a significant number of organisations that represent employers or 4
employees in a range of callings. 5
"State Training Council" see the Vocational Education, Training and 6
Employment Act 1991. 7
"strike"-- 8
(a) means the conduct of 2 or more employees who are, or have 9
been, employed by the same employer, or different employers, 10
consisting in-- 11
(i) a wilful failure to perform work required of them under their 12
employment contracts; or 13
(ii) a performance of work in a way in which it is not 14
customarily performed; or 15
(iii) the adoption of a practice or strategy resulting in a restriction, 16
limitation or delay in the performance of work or a 17
restriction or limitation of the product of work; or 18
(iv) a ban, restriction or limitation on the performance of work or 19
on acceptance or offering for work; or 20
(v) a wilful failure of the employees to attend for work that is 21
not allowed by the employer; or 22
(vi) a wilful failure to perform any work at all by employees who 23
attend for work that is not allowed by the employer; 24
that is because of a combination, agreement or understanding 25
(expressed or implied) entered into by the employees or any of 26
them and that has a purpose-- 27
(vii) to compel or induce an employer to agree to employment 28
conditions, or to employ, or cease to employ, a person or 29
class of person, or to comply with demands made by the 30
employees or any of them or by any other employees; or 31
499
Industrial Relations
SCHEDULE 5 (continued)
(viii)to cause loss or inconvenience to an employer in the conduct 1
of business; or 2
(ix) to incite, instigate, aid, abet or procure another strike; or 3
(x) to help employees in the employment of another employer to 4
compel or induce the employer to agree to employment 5
conditions or to employ, or cease to employ, a person or 6
class of person or to comply with demands made by any 7
employees; and 8
(b) includes conduct capable of constituting a strike even though the 9
conduct relates to part only of the functions the employees must 10
perform in their employment; but 11
(c) does not include action by an employee if-- 12
(i) the action was based on a reasonable concern by the 13
employee about an imminent risk to his or her health or 14
safety; and 15
(ii) the employee did not unreasonably contravene a direction of 16
his or her employer to perform other available work 17
(whether at the same or another workplace) that was safe and 18
appropriate for the employee to perform. 19
"subcontractor", for chapter 11, part 2, see section 376. 20
"successor" includes assignee and transmittee. 21
"take" a statutory declaration, for chapter 8, part 6, see section 316. 22
"termination agreement", for chapter 6, part 2, see section 198(1). 23
"termination notice", for chapter 6, part 2, see section 198(3). 24
"time and wages record", for chapter 11, part 1, see section 363. 25
"trainee" means a person who is employed or used in a traineeship-- 26
(a) if an application for the person's registration as a trainee has been 27
made under the Vocational Education, Training and Employment 28
Act 1991--until the application is approved or refused; or 29
(b) if the application for the person's registration as a trainee is 30
approved; or 31
500
Industrial Relations
SCHEDULE 5 (continued)
(c) if the person is employed under conditions that are substantially 1
equivalent to conditions in a traineeship--even if an application 2
for the person's registration as a trainee has not been made. 3
"traineeship" means an approved training scheme under the Vocational 4
Education, Training and Employment Act 1991, section 68(2)(a). 5
"training agreement" see the Vocational Education, Training and 6
Employment Act 1991. 7
"transactions", for chapter 12, part 13, see section 551. 8
"transfer" of a calling includes the transmission, assurance, conveyance, 9
assignment and succession of the calling-- 10
(a) either by-- 11
(i) operation of law; or 12
(ii) agreement, including an agreement effected by a third 13
person; and 14
(b) either before or after the commencement of this Act. 15
"valid majority" means a majority of the relevant employees who cast a 16
valid vote to give an approval, after the employer has given the 17
employees a reasonable opportunity to decide whether they want to 18
give the approval. 19
"vice president" see section 258. 20
"violent offence", for chapter 12, part 9, see section 514. 21
"wage rate" includes pay rate and prices for work. 22
"wages" means-- 23
(a) an amount payable to an employee for-- 24
(i) work performed, or to be performed, by the employee; or 25
(ii) a public holiday; or 26
(iii) leave the employee is entitled to; or 27
(iv) termination of employment; or 28
(b) a salary; or 29
501
Industrial Relations
SCHEDULE 5 (continued)
(c) an amount payable from wages for the employee, with the 1
employee's written consent; or 2
(d) a shortfall under section 220. 3
"withdrawal", for chapter 12, see section 409. 4
"withdrawal ballot", for chapter 12, part 15, see section 616. 5
"withdrawal day", for chapter 12, part 15, see section 616. 6
"working day" means a day on which employees normally perform work. 7
"young employee" means a person under 21 years engaged in a calling 8
(other than an apprentice or a person subject to the Vocational 9
Education, Training and Employment Act 1991) who receives a lower 10
wage rate than that fixed by an industrial instrument for employees 11
21 years or over in the calling. 12
© State of Queensland 1999
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