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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia Industrial Legislation Amendment Bill 2011 CONTENTS Part 1 -- Preliminary 1. Short title 2 2. Commencement 2 Part 2 -- Construction Industry Portable Paid Long Service Leave Act 1985 amended 3. Act amended 3 4. Section 3A inserted 3 3A. Application offshore 3 5. Section 3 amended 3 6. Section 6 amended 7 7. Section 7 amended 8 8. Section 8 amended 9 9. Section 21 amended 10 10. Section 22 amended 11 11. Section 23 amended 12 12. Section 24 amended 12 13. Section 28 amended 12 14. Section 30 amended 13 15. Section 31A inserted 14 31A. Registration of employees 14 16. Section 31 amended 15 17. Section 32 amended 16 18. Section 34 amended 16 19. Section 35A inserted 17 35A. Penalty for late payment 17 20. Section 38 amended 17 21. Section 45 amended 18 22. Section 49 amended 18 225--1 page i Industrial Legislation Amendment Bill 2011 Contents 23. Section 50 replaced 19 50. Review of Board's decision 19 51A. Procedure on review 20 24. Section 51 amended 21 25. Section 52 replaced 21 52. Obstructing inspector or other person 21 26. Section 53 replaced 22 53. Protection of persons giving information under this Act 22 54A. Remedies for breach of section 53 23 27. Section 55 amended 24 Part 3 -- Industrial Relations Act 1979 amended Division 1 -- Preliminary 28. Act amended 25 Division 2 -- Amendments consequential to Part 2 amendments 29. Section 81AA amended 25 30. Section 81CA amended 25 31. Section 83E amended 26 Division 3 -- Amendments relating to Commonwealth legislation 32. Section 7 amended 26 33. Section 31 amended 27 34. Section 71 amended 27 35. Section 73 amended 27 36. Section 80H amended 28 37. Section 80ZJ amended 28 38. Section 97VS amended 28 39. Various references to "the Australian Commission" amended 28 Division 4 -- Other amendments 40. Section 7 amended 29 41. Section 29A amended 30 42. Section 81AA amended 31 43. Section 85 amended 31 44. Section 93 amended 31 45. Section 98 amended 32 46. Sections 99A to 99D inserted 33 page ii Industrial Legislation Amendment Bill 2011 Contents [Section 3 amended by No. 33 of 2011 s. 4.]99A. Identity card 33 99B. Production of identification 33 99C. Staff 34 99D. Designation of officers, generally 34 47. Section 113 amended 35 48. Various references to "the Council" amended 36 Part 4 -- Minimum Conditions of Employment Act 1993 amended 49. Act amended 37 50. Schedule 1 amended 37 Part 5 -- Employment Dispute Resolution Act 2008 amended 51. Act amended 38 52. Section 3 amended 38 53. Section 26 deleted 39 54. Section 27 replaced 39 27. Application for IR Commission to conduct dispute resolution process 39 55. Section 28 amended 39 56. Section 29 amended 40 57. Section 31 amended 40 Part 6 -- Litter Act 1979 amended 58. Act amended 41 59. Section 9 amended 41 Part 7 -- Occupational Safety and Health Act 1984 amended 60. Act amended 42 61. Section 6 amended 42 page iii Western Australia LEGISLATIVE COUNCIL Industrial Legislation Amendment Bill 2011 A Bill for An Act to amend the following Acts -- the Construction Industry Portable Paid Long Service Leave Act 1985; the Industrial Relations Act 1979; the Minimum Conditions of Employment Act 1993; the Employment Dispute Resolution Act 2008, and to make minor amendments to other Acts. The Parliament of Western Australia enacts as follows: page 1 Industrial Legislation Amendment Bill 2011 Part 1 Preliminary s. 1 1 Part 1 -- Preliminary 2 1. Short title 3 This is the Industrial Legislation Amendment Act 2011. 4 2. Commencement 5 This Act comes into operation as follows -- 6 (a) sections 1 and 2 -- on the day on which this Act 7 receives the Royal Assent; 8 (b) the rest of the Act -- on a day fixed by proclamation, 9 and different days may be fixed for different provisions. page 2 Industrial Legislation Amendment Bill 2011 Construction Industry Portable Paid Long Service Leave Act Part 2 1985 amended s. 3 1 Part 2 -- Construction Industry Portable Paid Long 2 Service Leave Act 1985 amended 3 3. Act amended 4 This Part amends the Construction Industry Portable Paid Long 5 Service Leave Act 1985. 6 4. Section 3A inserted 7 After section 2 insert: 8 9 3A. Application offshore 10 (1) In this section -- 11 offshore area means an area referred to in the 12 Industrial Relations Act 1979 section 3(3). 13 (2) Where, under the Industrial Relations Act 1979 14 section 3, that Act applies to and in relation to any 15 construction industry carried on wholly or partly in an 16 offshore area, then -- 17 (a) this Act applies to and in relation to employers 18 and employees in that industry in that area; and 19 (b) subsection (4) of that section applies with all 20 necessary changes for the purposes of this Act. 21 22 5. Section 3 amended 23 (1) In section 3(1) delete the definitions of: 24 award 25 employee 26 employer page 3 Industrial Legislation Amendment Bill 2011 Part 2 Construction Industry Portable Paid Long Service Leave Act 1985 amended s. 5 1 (2) In section 3(1) insert in alphabetical order: 2 3 apprentice means a person who is an apprentice under 4 a training contract that -- 5 (a) provides for training in a classification of work 6 referred to in a prescribed industrial instrument 7 relating to the construction industry that is a 8 prescribed classification; and 9 (b) is registered under the Vocational Education 10 and Training Act 1996 Part 7 Division 2 or an 11 Act of another State or a Territory that 12 corresponds to that Act; 13 approved form means a form approved by the Board 14 for the purposes of the provision in which the term is 15 used; 16 employee means -- 17 (a) a person who is employed under a contract of 18 service in a classification of work referred to in 19 a prescribed industrial instrument relating to the 20 construction industry that is a prescribed 21 classification; or 22 (b) an apprentice; 23 employer means -- 24 (a) a natural person, firm or body corporate who or 25 which engages persons as employees in the 26 construction industry; or 27 (b) a labour hire agency which arranges for a 28 person who is a party to a contract of service 29 with the agency (person A) to do work in the 30 construction industry for another person 31 (person B), even though person A is working 32 for person B under an arrangement between the 33 agency and person B, 34 but does not include a Minister, authority or local 35 government prescribed under subsection (4)(c); page 4 Industrial Legislation Amendment Bill 2011 Construction Industry Portable Paid Long Service Leave Act Part 2 1985 amended s. 5 1 industrial instrument means -- 2 (a) an award, industrial agreement or order made 3 under the Industrial Relations Act 1979; or 4 (b) an award, determination, enterprise agreement 5 or order made under the Fair Work Act 2009 6 (Commonwealth); or 7 (c) an award, determination or agreement given 8 continuing effect under the Fair Work 9 (Transitional Provisions and Consequential 10 Amendments) Act 2009 (Commonwealth), 11 irrespective of whether or not the instrument has, since 12 it was made or given continuing effect, ceased to be in 13 force; 14 inspector means a person engaged or appointed under 15 section 44(1); 16 labour hire agency means a person or entity that 17 conducts a business of the kind commonly known as a 18 labour hire agency; 19 prescribed means prescribed by regulations made 20 under this Act; 21 training contract means a contract that complies with 22 the Vocational Education and Training Act 1996 23 section 60E; 24 WAIRC means The Western Australian Industrial 25 Relations Commission continued and constituted under 26 the Industrial Relations Act 1979; 27 28 (3) In section 3(1) in the definition of construction industry: 29 (a) after paragraph (a)(i) insert: 30 31 (iia) swimming pools and spa pools; 32 page 5 Industrial Legislation Amendment Bill 2011 Part 2 Construction Industry Portable Paid Long Service Leave Act 1985 amended s. 5 1 (b) in paragraph (a)(xvi) delete "for the use on" and insert: 2 3 for use on or for the use of 4 5 (c) in paragraph (f) delete "for an employer who" and 6 insert: 7 8 for an employer, or another person under an 9 arrangement with a labour hire agency, who 10 11 (4) In section 3(1) in the definition of union delete "Schedule 1 of 12 the Workplace Relations Act 1996 of the Commonwealth" and 13 insert: 14 15 the Fair Work (Registered Organisations) Act 2009 16 (Commonwealth) 17 18 (5) Delete section 3(3). 19 (6) In section 3(4): 20 (a) delete "award" (each occurrence) and insert: 21 22 industrial instrument 23 24 (b) in paragraph (a) delete "definition of employee;" and 25 insert: 26 27 definitions of apprentice and employee; 28 page 6 Industrial Legislation Amendment Bill 2011 Construction Industry Portable Paid Long Service Leave Act Part 2 1985 amended s. 6 1 6. Section 6 amended 2 (1) Delete section 6(1)(b) and (c) and insert: 3 4 (b) 2 persons appointed from among persons 5 whose names are on a panel of 4 names 6 comprised of -- 7 (i) 2 names submitted by the Master 8 Builders' Association of Western 9 Australia; and 10 (ii) 2 names submitted by the Chamber of 11 Commerce and Industry of Western 12 Australia (Inc); 13 (c) 2 persons appointed from among persons 14 whose names are on a panel of 4 names 15 comprised of -- 16 (i) 2 names submitted by UnionsWA; and 17 (ii) 2 names submitted by The Building 18 Trades Association of Unions of 19 Western Australia (Association of 20 Workers); 21 (d) one person who in the Minister's opinion 22 represents the interests of employers in the 23 construction industry; 24 (e) one person who in the Minister's opinion 25 represents the interests of employees in the 26 construction industry. 27 28 (2) After section 6(4) insert: 29 30 (5) Despite subsection (1) -- 31 (a) subject to section 8, each of the persons holding 32 office as a member of the Board under 33 subsection (1)(b) or (c) immediately before the page 7 Industrial Legislation Amendment Bill 2011 Part 2 Construction Industry Portable Paid Long Service Leave Act 1985 amended s. 7 1 coming into operation of the Industrial 2 Legislation Amendment Act 2011 section 6(1) 3 continues to hold office for the remainder of 4 their term of appointment; and 5 (b) the Minister is not to appoint a person under 6 subsection (1)(d) until a person referred to in 7 paragraph (a) ceases to hold office as a member 8 under subsection (1)(b); and 9 (c) the Minister is not to appoint a person under 10 subsection (1)(e) until a person referred to in 11 paragraph (a) ceases to hold office as a member 12 under subsection (1)(c). 13 (6) The regulations may amend subsection (1)(b) or (c) in 14 order to reflect a change in the name of any body 15 referred to in that paragraph. 16 17 7. Section 7 amended 18 (1) Delete section 7(1) and insert: 19 20 (1) If -- 21 (a) a member appointed under section 6(1)(b) or 22 (c) is absent or temporarily incapable of 23 fulfilling the duties of a member; or 24 (b) the office of a member appointed under 25 section 6(1)(b) or (c) is vacant, 26 the Minister may, on the nomination of the relevant 27 body referred to in section 6(1)(b) or (c), appoint a 28 person to act in the place of that member during that 29 absence or incapacity, or until the vacancy is filled, as 30 the case requires. 31 page 8 Industrial Legislation Amendment Bill 2011 Construction Industry Portable Paid Long Service Leave Act Part 2 1985 amended s. 8 1 (2) Delete section 7(3) and insert: 2 3 (3) If -- 4 (a) the chairman or a member appointed under 5 section 6(1)(d) or (e) is absent or temporarily 6 incapable of fulfilling the duties of a member; 7 or 8 (b) the office of the chairman or a member 9 appointed under section 6(1)(d) or (e) is vacant, 10 the Minister may appoint a person to act in the place of 11 that member. 12 (4A) While acting in the place of a member under this 13 section an acting member has all the functions and 14 entitlements of the member. 15 16 8. Section 8 amended 17 (1) Delete section 8(1) and insert: 18 19 (1) The Minister may remove a member from office on the 20 grounds of -- 21 (a) mental or physical inability to carry out the 22 duties of the office in a satisfactory manner; or 23 (b) neglect of duty; or 24 (c) misconduct; or 25 (d) absence, without leave of the Minister or an 26 excuse which is satisfactory to the Minister, 27 from 3 consecutive meetings of the Board of 28 which the member has had notice. 29 page 9 Industrial Legislation Amendment Bill 2011 Part 2 Construction Industry Portable Paid Long Service Leave Act 1985 amended s. 9 1 (2) In section 8(2): 2 (a) in paragraph (b) delete "his appointment is terminated" 3 and insert: 4 5 the member is removed from office 6 7 (b) delete paragraph (c). 8 9. Section 21 amended 9 (1) In section 21(1) delete "award" and insert: 10 11 any industrial instrument 12 13 (2) After section 21(2) insert: 14 15 (3A) In addition to the provisions set out in subsection (2), 16 for the purposes of calculating the entitlement of an 17 employee to long service leave under subsection (1), 18 any period of service which occurred -- 19 (a) before a break in service; and 20 (b) when the person was not registered as an 21 employee under this Act; and 22 (c) after the coming into operation of the Industrial 23 Legislation Amendment Act 2011 section 9(2), 24 is not to be counted as service. 25 page 10 Industrial Legislation Amendment Bill 2011 Construction Industry Portable Paid Long Service Leave Act Part 2 1985 amended s. 10 1 (3) In section 21(3) delete "subsection (1) --" and insert: 2 3 this section -- 4 break in service means -- 5 (a) in the case of a person who has been engaged 6 as an employee for any number of days that 7 does not exceed 1 100 days of service -- a 8 period within which the person is not so 9 engaged of 2 years or more commencing from 10 the last day of that engagement; or 11 (b) in the case of a person who has been engaged 12 as an employee for any number of days 13 exceeding 1 100 days of service -- a period 14 within which the person is not so engaged of 15 4 years or more commencing from the last day 16 of that engagement; 17 18 10. Section 22 amended 19 (1) Delete section 22(1)(b)(ii) and insert: 20 21 (ii) for any period of service after the 22 completion of 10 years of service which 23 is not part of the period of an accrued 24 entitlement under section 21(1), a sum 25 which bears the same proportion to the 26 money value of the entitlement referred 27 to in section 21(1)(a) as the period of 28 service bears to 10 years. 29 30 (2) After section 22(2) insert: 31 32 (3) When a lump sum payment is made to an employee or 33 in respect of a deceased employee under this section, page 11 Industrial Legislation Amendment Bill 2011 Part 2 Construction Industry Portable Paid Long Service Leave Act 1985 amended s. 11 1 the Board must remove the name of that person from 2 the register of employees. 3 (4) Nothing in subsection (3) prevents a person referred to 4 in subsection (1) from becoming entitled to registration 5 as an employee under this Act by virtue of any 6 subsequent service as an employee. 7 8 11. Section 23 amended 9 In section 23(1)(a) and (b) after "1 100 days" insert: 10 11 of service 12 13 12. Section 24 amended 14 Delete section 24(2). 15 13. Section 28 amended 16 (1) In section 28(1) and (2) delete the Penalty. 17 (2) After section 28(3) insert: 18 19 (4A) A contravention of subsection (1) or (2) is not an 20 offence but those subsections are civil penalty 21 provisions for the purposes of the Industrial Relations 22 Act 1979 section 83E. 23 (4B) Subsection (4A) extends to a contravention that 24 occurred within the period of 12 months ending on the 25 coming into operation of the Industrial Legislation 26 Amendment Act 2011 section 13 unless the person was 27 charged with an offence in respect of that 28 contravention. 29 page 12 Industrial Legislation Amendment Bill 2011 Construction Industry Portable Paid Long Service Leave Act Part 2 1985 amended s. 14 1 14. Section 30 amended 2 (1) Delete section 30(1) to (8) and insert: 3 4 (1) Every employer must register as an employer under 5 this Act. 6 (2) An application for registration as an employer must -- 7 (a) be made in the approved form; and 8 (b) contain the information required by the form. 9 (3) An applicant for registration as an employer must 10 include in the application every name under which, and 11 address from which, the applicant operates as an 12 employer. 13 (4) An employer must notify the Board if the employer 14 ceases to operate as an employer under any name or 15 from any address included in an application for 16 registration by the employer. 17 (5) A contravention of subsection (1), (3) or (4) is not an 18 offence but those subsections are civil penalty 19 provisions for the purposes of the Industrial Relations 20 Act 1979 section 83E. 21 (6) Subsection (5) extends to a contravention that occurred 22 within the period of 12 months ending on the coming 23 into operation of the Industrial Legislation Amendment 24 Act 2011 section 14 unless the person was charged with 25 an offence in respect of that contravention. 26 page 13 Industrial Legislation Amendment Bill 2011 Part 2 Construction Industry Portable Paid Long Service Leave Act 1985 amended s. 15 1 (2) In section 30(10)(a) delete "employer or employee as the case 2 requires; and" and insert: 3 4 employer; and 5 6 Note: The heading to amended section 30 is to read: 7 Registration of employers 8 15. Section 31A inserted 9 After section 30 insert: 10 11 31A. Registration of employees 12 (1) Subject to subsection (5), the Board must -- 13 (a) register as an employee under this Act any 14 employee in respect of whom an employer 15 makes a statement under section 31(1); and 16 (b) issue to the employee a certificate of 17 registration. 18 (2) A person who desires to register as an employee under 19 this Act may apply in writing to the Board for 20 registration. 21 (3) An application made under subsection (2) must -- 22 (a) be made in the approved form; and 23 (b) contain the information required by the form. 24 (4) The Board may by written notice require -- 25 (a) an employee in respect of whom an employer 26 makes a statement under section 31(1); or 27 (b) an employer who makes a statement in respect 28 of an employee under section 31(1); or page 14 Industrial Legislation Amendment Bill 2011 Construction Industry Portable Paid Long Service Leave Act Part 2 1985 amended s. 16 1 (c) an applicant for registration under 2 subsection (2), 3 to supply information the Board requires in relation to 4 the proposed registration of the employee or applicant, 5 and may require the information to be verified by 6 statutory declaration. 7 (5) If the Board is not satisfied with any information given 8 in an application or under subsection (4), the Board 9 may -- 10 (a) in the case of an employee to whom 11 subsection (1) applies, refuse to register the 12 employee; or 13 (b) in the case of an applicant for registration under 14 subsection (2), return the application and refuse 15 to register the applicant. 16 17 16. Section 31 amended 18 (1) In section 31(1): 19 (a) delete "each prescribed period --" and insert: 20 21 each prescribed period, within 15 days after the end of 22 that period -- 23 24 (b) delete paragraph (a) and insert: 25 26 (a) a statement in the approved form giving the 27 information required by the form; and 28 page 15 Industrial Legislation Amendment Bill 2011 Part 2 Construction Industry Portable Paid Long Service Leave Act 1985 amended s. 17 1 (2) Delete section 31(2) and insert: 2 3 (2) A contravention of subsection (1) is not an offence but 4 that subsection is a civil penalty provision for the 5 purposes of the Industrial Relations Act 1979 6 section 83E. 7 (3) Subsection (2) extends to a contravention that occurred 8 within the period of 12 months ending on the coming 9 into operation of the Industrial Legislation Amendment 10 Act 2011 section 16 unless the person was charged with 11 an offence in respect of that contravention. 12 13 17. Section 32 amended 14 Delete section 32(3) and insert: 15 16 (3) A contravention of subsection (1) or (2) is not an 17 offence but those subsections are civil penalty 18 provisions for the purposes of the Industrial Relations 19 Act 1979 section 83E. 20 (4) Subsection (3) extends to a contravention that occurred 21 within the period of 12 months ending on the coming 22 into operation of the Industrial Legislation Amendment 23 Act 2011 section 17 unless the person was charged with 24 an offence in respect of that contravention. 25 26 18. Section 34 amended 27 After section 34(1) insert: 28 29 (2A) In subsection (1) a reference to a person employed as 30 an employee does not include an apprentice. 31 page 16 Industrial Legislation Amendment Bill 2011 Construction Industry Portable Paid Long Service Leave Act Part 2 1985 amended s. 19 1 19. Section 35A inserted 2 After section 34 insert: 3 4 35A. Penalty for late payment 5 (1) Without limiting section 34, if an employer fails to pay 6 to the Board an amount of contribution within the time 7 required under section 31(1) the employer is liable to 8 pay to the Board, by way of penalty, a surcharge 9 determined by the Board. 10 (2) The surcharge becomes due and payable 30 days after 11 the employer is notified in writing by the Board of the 12 determination of the surcharge. 13 14 20. Section 38 amended 15 (1) After section 38(1) insert: 16 17 (2A) A contravention of subsection (1) is not an offence but 18 that subsection is a civil penalty provision for the 19 purposes of the Industrial Relations Act 1979 20 section 83E. 21 (2B) Subsection (2A) extends to a contravention that 22 occurred within the period of 12 months ending on the 23 coming into operation of the Industrial Legislation 24 Amendment Act 2011 section 20 unless the person was 25 charged with an offence in respect of that 26 contravention. 27 28 (2) Delete section 38(3) to (6). page 17 Industrial Legislation Amendment Bill 2011 Part 2 Construction Industry Portable Paid Long Service Leave Act 1985 amended s. 21 1 21. Section 45 amended 2 Delete section 45(2) and insert: 3 4 (2) A person must not, without reasonable excuse, fail to 5 comply with a requirement made under subsection (1). 6 (3) A contravention of subsection (2) is not an offence but 7 that subsection is a civil penalty provision for the 8 purposes of the Industrial Relations Act 1979 9 section 83E. 10 (4) Subsection (3) extends to a contravention that occurred 11 within the period of 12 months ending on the coming 12 into operation of the Industrial Legislation Amendment 13 Act 2011 section 21 unless the person was charged with 14 an offence in respect of that contravention. 15 16 22. Section 49 amended 17 After section 49(1) insert: 18 19 (2A) In any proceedings against a person for recovery of a 20 surcharge determined under section 35A, a certificate 21 purporting to be signed by the chief executive officer 22 certifying any of the following -- 23 (a) that the employer named in the certificate was 24 liable to pay the surcharge; 25 (b) that the determination of the surcharge was 26 duly made; 27 (c) that the amount of the surcharge is as stated in 28 the certificate, 29 is admissible in evidence in the proceedings and is, in 30 the absence of evidence to the contrary, conclusive 31 proof of the matters stated in the certificate. 32 page 18 Industrial Legislation Amendment Bill 2011 Construction Industry Portable Paid Long Service Leave Act Part 2 1985 amended s. 23 1 23. Section 50 replaced 2 Delete section 50 and insert: 3 4 50. Review of Board's decision 5 (1) In this section -- 6 reviewable decision means a decision by the Board -- 7 (a) to refuse to register an employee; or 8 (b) to require an employer to register under this 9 Act; or 10 (c) to remove the name of an employer or 11 employee from the employers register or the 12 employees register respectively; or 13 (d) as to the assessment of the amount of ordinary 14 pay of an employee under section 34; or 15 (e) as to the entitlement of an employee to long 16 service leave; or 17 (f) as to the amount of any moneys to be paid in 18 respect of a long service leave entitlement 19 whether pro rata or otherwise. 20 (2) A person who is aggrieved by a reviewable decision 21 may, in the manner and time prescribed by regulations 22 made under section 51A(3), refer the decision for 23 review to the WAIRC constituted by a single 24 commissioner. 25 (3) On a referral of a decision under subsection (2), the 26 WAIRC is to inquire into the circumstances relevant to 27 the decision and may -- 28 (a) affirm the decision; or 29 (b) vary the decision; or 30 (c) set aside the decision and -- 31 (i) substitute another decision; or page 19 Industrial Legislation Amendment Bill 2011 Part 2 Construction Industry Portable Paid Long Service Leave Act 1985 amended s. 23 1 (ii) send the matter back to the Board for 2 reconsideration in accordance with any 3 directions or recommendations that the 4 WAIRC considers appropriate. 5 51A. Procedure on review 6 (1) The provisions of the Industrial Relations Act 1979 7 sections 22B, 26(1)(a) and (b) and (3), 27, 28, 31(1), 8 (2) and (3), 34(3) and (4), 36 and 49 that apply to and 9 in relation to the exercise of the jurisdiction of the 10 WAIRC constituted by a commissioner apply to and in 11 relation to the exercise of the jurisdiction conferred by 12 section 50 -- 13 (a) with any modifications that may be prescribed 14 by the Chief Commissioner under the Industrial 15 Relations Act 1979 section 113; and 16 (b) with any other modifications that may be 17 necessary or appropriate. 18 (2) For the purposes of subsection (1), the Industrial 19 Relations Act 1979 section 31(1) applies as if 20 paragraph (c) were deleted and the following paragraph 21 were inserted -- 22 23 (c) by a legal practitioner. 24 25 (3) The Chief Commissioner may make regulations under 26 the Industrial Relations Act 1979 section 113 providing 27 for -- 28 (a) the manner in which, and time within which, a 29 decision may be referred for review under 30 section 50; and 31 (b) the practice and procedure to be followed for 32 the purposes of a review under section 50. 33 page 20 Industrial Legislation Amendment Bill 2011 Construction Industry Portable Paid Long Service Leave Act Part 2 1985 amended s. 24 1 24. Section 51 amended 2 In section 51(1) delete "by virtue of continuous service with an 3 employer" and insert: 4 5 under another Act or under an industrial instrument 6 7 25. Section 52 replaced 8 Delete section 52 and insert: 9 10 52. Obstructing inspector or other person 11 (1) A person must not without reasonable excuse -- 12 (a) obstruct or hinder an inspector performing a 13 function under this Act; or 14 (b) fail to comply with a lawful requirement or 15 direction of an inspector under this Act; or 16 (c) conceal any person from, or prevent any person 17 from appearing before, an inspector, or attempt 18 to conceal a person from, or prevent a person 19 from appearing before, an inspector; or 20 (d) hinder a person authorised by a union to do so 21 from inspecting any records required to be 22 maintained by an employer under this Act. 23 (2) A contravention of subsection (1) is not an offence but 24 that subsection is a civil penalty provision for the 25 purposes of the Industrial Relations Act 1979 26 section 83E. 27 (3) Subsection (2) extends to a contravention of section 52 28 as in force immediately before the coming into 29 operation of the Industrial Legislation Amendment 30 Act 2011 section 25 that occurred within the period of 31 12 months ending on that coming into operation unless page 21 Industrial Legislation Amendment Bill 2011 Part 2 Construction Industry Portable Paid Long Service Leave Act 1985 amended s. 26 1 the person was charged with an offence in respect of 2 that contravention. 3 4 26. Section 53 replaced 5 Delete section 53 and insert: 6 7 53. Protection of persons giving information under this 8 Act 9 (1) A person must not -- 10 (a) dismiss a person from, or otherwise injure a 11 person in, that person's employment; or 12 (b) detrimentally alter a person's employment 13 position; or 14 (c) refuse to promote a person; or 15 (d) refuse to employ another person; or 16 (e) directly or indirectly hinder or prevent the 17 employment of another person or the promotion 18 of a person, 19 when a reason for doing so is that the person or other 20 person has given information to an inspector or to the 21 chief executive officer under this Act. 22 (2) A contravention of subsection (1) is not an offence but 23 that subsection -- 24 (a) is a civil penalty provision for the purposes of 25 the Industrial Relations Act 1979 section 83E; 26 and 27 (b) is also enforceable under section 54A. 28 (3) Subsection (2) extends to a contravention of 29 section 53(1) as in force immediately before the 30 coming into operation of the Industrial Legislation 31 Amendment Act 2011 section 26 that occurred within page 22 Industrial Legislation Amendment Bill 2011 Construction Industry Portable Paid Long Service Leave Act Part 2 1985 amended s. 26 1 the period of 12 months ending on that coming into 2 operation unless the person was charged with an 3 offence in respect of that contravention. 4 54A. Remedies for breach of section 53 5 (1) If an industrial magistrate's court determines under the 6 Industrial Relations Act 1979 section 83E that an 7 employer has contravened section 53(1) in relation to a 8 person who is or was an employee of that person, the 9 court may make an order under subsection (2). 10 (2) The court may order the employer -- 11 (a) to reinstate the person if he or she was 12 dismissed from employment; or 13 (b) subject to subsection (6), to pay to the person 14 compensation for any loss or injury suffered as 15 a result of the contravention, 16 or to do both of those things. 17 (3) If an industrial magistrate's court determines under the 18 Industrial Relations Act 1979 section 83E that a person 19 has contravened section 53(1) in relation to a person 20 other than an employee of the person, the court may, 21 subject to subsection (6), order the person found to 22 have contravened section 53(1) to pay compensation to 23 that other person for any loss or injury suffered as a 24 result of the contravention. 25 (4) The court may make an order under this section in 26 addition to imposing a penalty under the Industrial 27 Relations Act 1979 section 83E. 28 (5) A person is not entitled to compensation both under 29 this section and otherwise for the same dismissal, loss 30 or injury. page 23 Industrial Legislation Amendment Bill 2011 Part 2 Construction Industry Portable Paid Long Service Leave Act 1985 amended s. 27 1 (6) The court does not have jurisdiction under this section 2 to order that there be paid -- 3 (a) to an employee who has been dismissed, any 4 amount exceeding 6 months' remuneration of 5 the employee; and 6 (b) in any other case, any amount exceeding $5 000 7 or such other amount as is prescribed by the 8 regulations. 9 (7) For the purposes of subsection (6)(a) the court may 10 calculate the amount on the basis of an average rate 11 received during any relevant period of employment. 12 (8) A person must comply with an order made against the 13 person under this section. 14 Penalty: a fine of $5 000 and a daily penalty of $500. 15 16 27. Section 55 amended 17 In section 55 delete "award" and insert: 18 19 any industrial instrument 20 page 24 Industrial Legislation Amendment Bill 2011 Industrial Relations Act 1979 amended Part 3 Preliminary Division 1 s. 28 1 Part 3 -- Industrial Relations Act 1979 amended 2 Division 1 -- Preliminary 3 28. Act amended 4 This Part amends the Industrial Relations Act 1979. 5 Division 2 -- Amendments consequential to Part 2 amendments 6 29. Section 81AA amended 7 (1) In section 81AA delete "on it by --" and insert: 8 9 on it by the following -- 10 11 (2) Before section 81AA(ba) insert: 12 13 (a) the Construction Industry Portable Paid Long 14 Service Leave Act 1985 section 53; 15 16 30. Section 81CA amended 17 In section 81CA(1) in the definition of general jurisdiction: 18 (a) in paragraph (b) delete "1958;" and insert: 19 20 1958; or 21 22 (b) after paragraph (b) insert: 23 24 (c) the Construction Industry Portable Paid Long 25 Service Leave Act 1985 section 53; 26 page 25 Industrial Legislation Amendment Bill 2011 Part 3 Industrial Relations Act 1979 amended Division 3 Amendments relating to Commonwealth legislation s. 31 1 31. Section 83E amended 2 (1) In section 83E(6) delete "An application" and insert: 3 4 Except as provided in subsections (6a) and (7A), an application 5 6 (2) After section 83E(6a) insert: 7 8 (7A) In the case of a contravention of a provision under the 9 Construction Industry Portable Paid Long Service 10 Leave Act 1985 that is a civil penalty provision -- 11 (a) subsection (6) does not apply; and 12 (b) an application for an order under this section 13 may be made, with the written consent of the 14 Construction Industry Long Service Leave 15 Payments Board established under section 5 of 16 that Act, by an officer of the Board. 17 18 (3) In section 83E(7) delete "subsection (6)" and insert: 19 20 subsection (6) or (7A)(b) 21 22 Division 3 -- Amendments relating to 23 Commonwealth legislation 24 32. Section 7 amended 25 (1) In section 7(1) delete the definition of Australian Commission. 26 (2) In section 7(1) insert in alphabetical order: 27 28 Fair Work Australia means the body established by 29 the Fair Work Act 2009 (Commonwealth) section 575; 30 page 26 Industrial Legislation Amendment Bill 2011 Industrial Relations Act 1979 amended Part 3 Amendments relating to Commonwealth legislation Division 3 s. 33 1 33. Section 31 amended 2 In section 31(1)(c)(i) delete "Commonwealth Act; or" and 3 insert: 4 5 Fair Work Act 2009 (Commonwealth); or 6 7 34. Section 71 amended 8 In section 71(1) in the definition of Branch delete 9 "Commonwealth Act;" and insert: 10 11 Fair Work (Registered Organisations) Act 2009 12 (Commonwealth); 13 14 35. Section 73 amended 15 (1) In section 73(3)(a)(ii) delete "under the Commonwealth Act," 16 and insert: 17 18 made under the Fair Work Act 2009 19 (Commonwealth) or continued in 20 existence under the Fair Work 21 (Transitional Provisions and 22 Consequential Amendments) Act 2009 23 (Commonwealth), 24 25 (2) In section 73(7b) delete "under the Commonwealth Act," and 26 insert: 27 28 made under the Fair Work Act 2009 (Commonwealth) 29 or continued in existence under the Fair Work 30 (Transitional Provisions and Consequential 31 Amendments) Act 2009 (Commonwealth), 32 page 27 Industrial Legislation Amendment Bill 2011 Part 3 Industrial Relations Act 1979 amended Division 3 Amendments relating to Commonwealth legislation s. 36 1 36. Section 80H amended 2 In section 80H(6) delete "Commonwealth Act" and insert: 3 4 Fair Work (Registered Organisations) Act 2009 5 (Commonwealth) 6 7 37. Section 80ZJ amended 8 In section 80ZJ(1) delete "Commonwealth Act" and insert: 9 10 Fair Work Act 2009 (Commonwealth) 11 12 Note: The heading to amended section 80ZJ is to read: 13 Exercise of powers conferred under Fair Work Act 14 15 38. Section 97VS amended 16 In section 97VS(5)(a) delete "under the Commonwealth Act," 17 and insert: 18 19 made under the Fair Work Act 2009 20 (Commonwealth) or continued in existence 21 under the Fair Work (Transitional Provisions 22 and Consequential Amendments) Act 2009 23 (Commonwealth), 24 25 39. Various references to "the Australian Commission" 26 amended 27 In the provisions listed in the Table delete "the Australian 28 Commission" (each occurrence) and insert: 29 30 Fair Work Australia 31 page 28 Industrial Legislation Amendment Bill 2011 Industrial Relations Act 1979 amended Part 3 Other amendments Division 4 s. 40 1 Table s. 7(1) def. of secondary office s. 14A s. 14B(1) s. 22(2)(c) s. 29AA(1) and (2) s. 80ZF s. 80ZG(1), (2) and (3) s. 80ZH(1), (2), (3) and (4) s. 80ZI(2) and (3) 2 Notes: 3 1. The heading to amended section 80ZF is to read: 4 References to Fair Work Australia 5 2. The heading to amended section 80ZH is to read: 6 Reference of industrial matters to Fair Work Australia for 7 determination under this Act 8 Division 4 -- Other amendments 9 40. Section 7 amended 10 (1) In section 7(1) delete the definitions of: 11 Council 12 deputy registrar 13 industrial inspector 14 Registrar 15 (2) In section 7(1) insert in alphabetical order: 16 17 CEO means the chief executive officer of the 18 Department; 19 Department means the department of the Public 20 Service principally assisting the Minister in the 21 administration of this Act; 22 departmental officer means a person employed in the 23 Department as referred to in section 99C(2); page 29 Industrial Legislation Amendment Bill 2011 Part 3 Industrial Relations Act 1979 amended Division 4 Other amendments s. 41 1 deputy registrar means a person designated as a deputy 2 registrar under this Act; 3 industrial inspector means a person designated as an 4 industrial inspector under this Act; 5 officer of the Commission means -- 6 (a) the Registrar, a deputy registrar or any other 7 Registrar's Department officer assisting the 8 Commission in the performance of its 9 functions; or 10 (b) an officer appointed under section 93(1a); 11 officer of the Court means the clerk of the Court or 12 any other Registrar's Department officer assisting the 13 Court in the performance of its functions; 14 Registrar means the chief executive officer of the 15 Registrar's Department or, if another person is 16 designated as the Registrar under this Act, that person; 17 Registrar's Department means the department of the 18 Public Service known as the Department of the 19 Registrar Western Australian Industrial Relations 20 Commission; 21 Registrar's Department officer means a person 22 employed in the Registrar's Department as referred to 23 in section 99C(3); 24 25 41. Section 29A amended 26 Delete section 29A(2a) and insert: 27 28 (2A) The Chief Commissioner may, if of the opinion that it 29 is appropriate to do so in the circumstances, direct that 30 the area and scope provisions of the proposed award or 31 industrial agreement -- 32 (a) need not be published in the Industrial Gazette; 33 or page 30 Industrial Legislation Amendment Bill 2011 Industrial Relations Act 1979 amended Part 3 Other amendments Division 4 s. 42 1 (b) need not be published at all. 2 3 42. Section 81AA amended 4 Delete section 81AA(bb). 5 43. Section 85 amended 6 Delete section 85(7) and insert: 7 8 (7) Subject to subsection (9), the chief executive officer of 9 the Registrar's Department is to be the clerk of the 10 Court. 11 (8) The Public Sector Management Act 1994 section 32(1) 12 does not apply to the performance of functions of the 13 clerk of the Court by the chief executive officer of the 14 Registrar's Department. 15 (9) The chief executive officer of the Registrar's 16 Department may designate a Registrar's Department 17 officer as the clerk of the Court. 18 19 44. Section 93 amended 20 (1) Delete section 93(1) and insert: 21 22 (1) Subject to subsection (1AB), the chief executive officer 23 of the Registrar's Department is to be the Registrar. 24 (1AA) The Public Sector Management Act 1994 section 32(1) 25 does not apply to the performance of functions of the 26 Registrar by the chief executive officer of the 27 Registrar's Department. 28 (1AB) The chief executive officer of the Registrar's 29 Department may, after consultation with the Chief page 31 Industrial Legislation Amendment Bill 2011 Part 3 Industrial Relations Act 1979 amended Division 4 Other amendments s. 45 1 Commissioner, designate a Registrar's Department 2 officer as the Registrar. 3 (1AC) The Registrar may designate a Registrar's Department 4 officer as a deputy registrar. 5 (1AD) There are to be as many deputy registrars as are 6 necessary for the purposes of this Act. 7 8 (2) In section 93(1a) delete "appointed under and subject to Part 3 9 of the Public Sector Management Act 1994." and insert: 10 11 public service officers. 12 13 (3) After section 93(2) insert: 14 15 (3A) Subsection (2) applies despite the Public Sector 16 Management Act 1994 but if the chief executive officer 17 of the Registrar's Department is the Registrar, nothing 18 in that subsection affects the functions of the Registrar 19 as chief executive officer. 20 21 45. Section 98 amended 22 Delete section 98(1) and insert: 23 24 (1) The CEO may designate a departmental officer as an 25 industrial inspector. 26 (2A) There are to be as many industrial inspectors as are 27 necessary to perform the functions conferred on 28 industrial inspectors by this Act or any other written 29 law. 30 page 32 Industrial Legislation Amendment Bill 2011 Industrial Relations Act 1979 amended Part 3 Other amendments Division 4 s. 46 1 46. Sections 99A to 99D inserted 2 After section 98 insert: 3 4 99A. Identity card 5 (1) Every industrial inspector is to be provided with an 6 identity card signed by the CEO or a departmental 7 officer authorised in that behalf by the CEO. 8 (2) An identity card purporting to have been provided 9 under subsection (1) is, without proof of the signature 10 of the person purporting to have signed it or of the 11 person's authority to have signed it, evidence in a 12 court -- 13 (a) of the appointment to which the identity card 14 purports to relate; and 15 (b) of any other matter specified on the identity 16 card. 17 (3) If the designation of a person under section 98(1) is 18 revoked or ceases to have effect, the person must, as 19 soon as practicable, but within 21 days, after the 20 designation is revoked or ceases to have effect, return 21 the identity card to the CEO or a departmental officer 22 authorised by the CEO to receive it, unless the person 23 has a reasonable excuse. 24 Penalty: a fine of $2 000. 25 99B. Production of identification 26 (1) An industrial inspector must, if requested to do so by a 27 person in respect of whom the industrial inspector has 28 exercised, or is about to exercise, a power under this 29 Act or any other written law, produce the industrial 30 inspector's identity card for the person's inspection. page 33 Industrial Legislation Amendment Bill 2011 Part 3 Industrial Relations Act 1979 amended Division 4 Other amendments s. 46 1 (2) Subsection (1) only applies if the industrial inspector is 2 in the physical presence of the person in respect of 3 whom the power has been, or is about to be, exercised. 4 (3) If for any reason it is not practicable to comply with 5 subsection (1), the industrial inspector must produce 6 the identity card for inspection by the person at the first 7 reasonable opportunity. 8 99C. Staff 9 (1) In this section -- 10 employed in the Department or the Registrar's 11 Department includes seconded to perform functions or 12 services for, or duties in the service of, that department. 13 (2) As many public service officers are to be employed in 14 the Department as are necessary for the purposes of 15 this Act. 16 (3) As many public service officers are to be employed in 17 the Registrar's Department as are necessary -- 18 (a) for the performance of the Court's functions; 19 and 20 (b) for the performance of the Commission's 21 functions; and 22 (c) otherwise for the purposes of this Act. 23 99D. Designation of officers, generally 24 (1) This section applies to the following -- 25 (a) the designation of a person under section 85(9) 26 to be the clerk of the Court; 27 (b) the designation of a person under 28 section 93(1AB) to be the Registrar; 29 (c) the designation of a person under 30 section 93(1AC) to be a deputy registrar; page 34 Industrial Legislation Amendment Bill 2011 Industrial Relations Act 1979 amended Part 3 Other amendments Division 4 s. 47 1 (d) the designation of a person under section 98(1) 2 to be an industrial inspector. 3 (2) A designation is to be in writing and the Interpretation 4 Act 1984 section 52 applies to it in the same way as 5 that section applies to an appointment. 6 (3) A designation referred to in subsection (1)(a), (b) or (c) 7 ceases to have effect if the person designated ceases to 8 be a Registrar's Department officer. 9 (4) A designation referred to in subsection (1)(d) ceases to 10 have effect if the person designated ceases to be a 11 departmental officer. 12 (5) The chief executive officer of the Registrar's 13 Department, the Registrar or the Minister, as the case 14 may be, may, in writing, delegate the power to make a 15 designation to another person. 16 17 47. Section 113 amended 18 (1) Delete section 113(1)(d)(ii)(III) (first occurrence) and insert: 19 20 (IIIA) the Owner-Drivers (Contracts 21 and Disputes) Act 2007; and 22 23 (2) After section 113(1)(d)(ii)(III) (second occurrence) and (IV) 24 insert: 25 26 and 27 page 35 Industrial Legislation Amendment Bill 2011 Part 3 Industrial Relations Act 1979 amended Division 4 Other amendments s. 48 1 48. Various references to "the Council" amended 2 In the provisions listed in the Table delete "the Council" (each 3 occurrence) and insert: 4 5 UnionsWA 6 7 Table s. 29A(2)(a)(i) and (b) s. 31(1)(c)(i) s. 38(1) and (1a)(a) s. 40B(2) and (3)(a) s. 47(5)(a) s. 50(2) s. 51A(1) s. 51BA(1)(a) s. 51I(2)(a) s. 51J(a) s. 51K s. 97VZ(3) def. of peak industrial body s. 112A(1a)(a) and (3)(c) page 36 Industrial Legislation Amendment Bill 2011 Minimum Conditions of Employment Act 1993 amended Part 4 s. 49 1 Part 4 -- Minimum Conditions of Employment 2 Act 1993 amended 3 49. Act amended 4 This Part amends the Minimum Conditions of Employment 5 Act 1993. 6 50. Schedule 1 amended 7 In Schedule 1: 8 (a) delete the reference after the heading and insert: 9 10 [s. 3(1)] 11 12 (b) after "Boxing Day." insert: 13 14 Any special day appointed by proclamation under the Public and Bank 15 Holidays Act 1972 section 7 to be a public holiday. 16 page 37 Industrial Legislation Amendment Bill 2011 Part 5 Employment Dispute Resolution Act 2008 amended s. 51 1 Part 5 -- Employment Dispute Resolution 2 Act 2008 amended 3 51. Act amended 4 This Part amends the Employment Dispute Resolution Act 2008. 5 52. Section 3 amended 6 (1) In section 3(1) delete the definitions of: 7 Commonwealth workplace agreement 8 Workplace Relations Act 9 (2) In section 3(1) insert in alphabetical order: 10 11 Commonwealth enterprise agreement means an 12 enterprise agreement as defined in the Fair Work 13 Act 2009 (Commonwealth) or any other agreement or 14 arrangement prescribed under the IR Act section 113 15 for the purposes of this definition; 16 17 (3) In section 3(1) in the definition of organisation delete 18 paragraph (b) and insert: 19 20 (b) an organisation registered under the Fair Work 21 (Registered Organisations) Act 2009 22 (Commonwealth); 23 24 (4) In section 3(1) in the definition of referral proceeding delete 25 "Division 2;" and insert: 26 27 Division 2. 28 page 38 Industrial Legislation Amendment Bill 2011 Employment Dispute Resolution Act 2008 amended Part 5 s. 53 1 53. Section 26 deleted 2 Delete section 26. 3 54. Section 27 replaced 4 Delete section 27 and insert: 5 6 27. Application for IR Commission to conduct dispute 7 resolution process 8 A party to an employment dispute may apply to the IR 9 Commission to have a dispute resolution process 10 conducted by the IR Commission in relation to the 11 employment dispute if -- 12 (a) the parties to the employment dispute are bound 13 by a Commonwealth enterprise agreement; and 14 (b) the Commonwealth enterprise agreement 15 authorises, permits or provides for the IR 16 Commission, or a member of the IR 17 Commission, to conduct a dispute resolution 18 process under dispute settlement procedures set 19 out in the agreement. 20 21 55. Section 28 amended 22 In section 28(2) and (3) delete "workplace" (each occurrence) 23 and insert: 24 25 enterprise 26 page 39 Industrial Legislation Amendment Bill 2011 Part 5 Employment Dispute Resolution Act 2008 amended s. 56 1 56. Section 29 amended 2 (1) Delete section 29(1)(a) and (b) and insert: 3 4 (a) the Commonwealth enterprise agreement 5 concerned; and 6 (b) the Fair Work Act 2009 (Commonwealth). 7 8 (2) Delete section 29(2) and insert: 9 10 (2) The Fair Work Act 2009 (Commonwealth) section 740 11 applies to a dispute resolution process conducted under 12 this Division. 13 14 57. Section 31 amended 15 In section 31(1) after "may be made" insert: 16 17 by the Chief Commissioner 18 page 40 Industrial Legislation Amendment Bill 2011 Litter Act 1979 amended Part 6 s. 58 1 Part 6 -- Litter Act 1979 amended 2 58. Act amended 3 This Part amends the Litter Act 1979. 4 59. Section 9 amended 5 Delete section 9(1)(ka) and insert: 6 7 (k) one shall be appointed on the nomination of 8 UnionsWA; 9 page 41 Industrial Legislation Amendment Bill 2011 Part 7 Occupational Safety and Health Act 1984 amended s. 60 1 Part 7 -- Occupational Safety and Health 2 Act 1984 amended 3 60. Act amended 4 This Part amends the Occupational Safety and Health Act 1984. 5 61. Section 6 amended 6 In section 6(2)(d)(ii) delete "the body known as The Trades and 7 Labor Council of Western Australia; and" and insert: 8 9 UnionsWA; and 10
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