Queensland INDUSTRIAL RELATIONS BILL 1999 INDUSTRIAL RELATIONS BILL 1999 TABLE OF PROVISIONS Section Page CHAPTER 1—PRELIMINARY 1 Short title 2.0... eee eee 36 2 Commencement... 0.0.0... 6c cece eee eee 36 3 Principal object of this Act... 0.6... eee eects 36 4 Definitions 2.2.0.0... cece eee 37 5 Who is an employee ......... 0.0 e cece cent teens 37 6 Who is an employer... 6... eee 38 7 What is an industrial matter... 2.6.6... 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... 6... 6. eee eee eens 40 Division 2—Sick leave 10 Entitlement ..... 0.0... eee eee 41 Division 3—Annual leave 11 Entitlement ..... 0.0... eee eee 42 12 Taking annual leave ...... 2... ent t ee ee ee 43 13 Payment for annual leave... 22... 6.6. eee 43 14 Payment for annual leave on termination of employment.............. 43 Division 4—Public holidays 15 Public holidays ...... 0... ct eee eens 44 Industrial Relations 1719222426283032343638 41 PART 2—FAMILY LEAVE Division 1—Parental leave Who this division does not apply to.............0.. 00.22 e eee eee eee Definitions for pt2.... 0.0.02 eee ee Entitlement ..... 0.0... eee eee Notices and documents—maternity leave...........0.000.00.000000. Notices and documents—parental leave other than maternity or adoption leave ....... 2... cee eee Notices and documents—adoption leave.............0...0 0000020002 Reasons not to give notice or documents ...............00...0000002 Notice of change to situation ............. 0.000000... cece eee eee Continuity of service... 2... 2. eee ee eee Spouses not to take parental leave at same time...............0..... Cancelling parental leave... 0.0.0.0... eee eee eee Parental leave with other leave ......... 0... cece cece eee eee Interruption of parental leave by return to work ...................0.. Extending period of parental leave...........0.. 0.000002 e eee eee Shortening period of parental leave. ..............00..00 0000000000. Effect on parental leave of ceasing to be the primary caregiver......... Return to work after parental leave etc........0...0 0.000. .e eee eee Employer's obligations ........ 0.0.0... 0 0c cece Dismissal because of pregnancy or parental leave..............0..0.. Replacement employees... 0.0... 0. Transfer to a safe job... 2.2... eee eee Special maternity leave and sick leave..........0..0..00.00 0002000. Special adoption leave .......... 0... eee eee eee Division 2—Carer's leave Entitlement... 0.2... een eee tee eens Industrial Relations 4446 4851 5456606264 PART 3—LONG SERVICE LEAVE Division 1—Definitions for pt 3 Definitions for pt3.... 6... ccs Division 2—Employees generally Entitlement .... 0... cette eee eee Working out continuity of service for service before 23 June 1990....... Taking long service leave... 0.0... cee eee eee Payment for long service leave ............... 0000s Division 3—Casual employees Continuity of service—additional considerations for casual employees .. . Taking long service leave—alternative provision for casual employees . . Payment for long service leave ............... 0000s Division 4—Seasonal employees Entitlement—employees in sugar industry and meat works............. Taking long service leave—employees in sugar industry and Meat WOrkS 0.0... tenes Other seasonal employees ..... 0.000... Division 5—Miscellaneous Payment instead of long service leave on termination................. Payment instead of long service leave on death...................0.. Continuity not broken by service in Reserve Forces .................. Recognition of certain exemptions ................00..00 0000000000. Person may be "employer" and "employee" ....................00.. PART 4—REVIEW Review of general employment conditions .....................0000. PART 5—EQUAL REMUNERATION FOR WORK OF EQUAL OR COMPARABLE VALUE Definition for pt5 2.6.6... eee cee eee t eee Orders requiring equal remuneration .................000...00000002 Orders only on application ..........00... 0.0. When commission must and may only make order ................... Immediate or progressive introduction of equal remuneration........... Employer not to reduce remuneration .............. 0.000.000.0000 08 Industrial Relations 66 68707476788082 848789 Part does not limit other rights... 0.6.0... eee eee eee 70 Applications under this part ........ 6.6... cece eee cece eee eee 70 PART 6—CONTINUITY OF SERVICE AND EMPLOYMENT Definition for pt 6.0.6... ccc ete ttt 71 How part applies ... 6.0.0... ett ee 71 Continuity of service—transfer of calling ...............00 00 cece eee 72 Continuity of service—apprentices or trainees. ...........0...0.0000. 72 Continuity of service—generally ........ 00... c cece cece eee eee 73 CHAPTER 3—DISMISSALS PART 1—EXCLUSIONS Who this chapter does not apply to 0.6.0.6... cece eee eee ee 75 PART 2—UNFAIR DISMISSALS When is a dismissal unfair ... 0.0... 06.6... e cece 77 Application for reinstatement .... 6.6.6.6. e eee eee 78 Conciliation before application heard .............. 20.20 e cece eee eee 79 Arbitration when conciliation unsuccessful ................0 00 eee eee 80 Matters to be considered in deciding an application .................. 80 Remedies—reinstatement or re-employment ...................00005 81 Remedies—compensation ........... 0060s 81 Sanctions for unfair dismissal—invalid reason ...............-.00005- 82 Further orders if employer fails to reinstate. .............. 00 ee eee eee 82 Effect of order on leave... 2... 6... c cece eee eee 83 PART 3—REQUIREMENTS FOR DISMISSAL What employer must do to dismiss employee .............--..0000005 83 Minimum period of notice required ........... 0.00 e eee eee 84 Minimum amount of compensation required ...............00 00sec eee 85 PART 4—DISMISSAL OF 15 OR MORE EMPLOYEES When this part applies... . 2.2.0.0... 6.0. c eee 85 Orders about severance allowances and other separation benefits ....... 85 Employer must give notice of proposed dismissals ..................-5 86 Employer must consult with employee organisations about dismissals ... 87 Time within which application under this part must be made........... 88 Industrial Relations 929496 98 100 102104 106108110 112114 PART 5—PROTECTION OF INJURED EMPLOYEES Definitions for pt 5.2.0... cece eens Wages to be paid for the day employee injured...................0.. Dismissal of injured employees only after 6 months .................. Replacement for injured employee .............. 0.00000... 00 eee ee Reinstatement of injured employees .................0020..00000 0002 Preservation of employee's rights ..............0 0.000002. c eee eee PART 6—STAND-DOWN OF EMPLOYEES Employee stood-down in December then re-employed in January ....... Permissible stand-down of employee ..............00...00..000 0000. PART 7—GENERAL Chapter does not limit other rights .............0..000..00..0000000. Inconsistent instruments and orders ......... 00000 e eee eee CHAPTER 4—FREEDOM OF ASSOCIATION PART 1—PRELIMINARY Main purposes of ch4........ 0.000 ce eee eee Definitions for ch4 2.0.6.6... cette ete ee Meaning of "industrial action" for ch4............0...0..0020000000. Meaning of "engaging in" conduct for a "prohibited reason" for ch 4... . PART 2—PROHIBITED CONDUCT Prohibited conduct for employers and principals ..................0.. Prohibited conduct for employees and independent contractors ......... Prohibited conduct for industrial associations .............--...0 0000 Certain actions by representative not prohibited conduct .............. Provision requiring or permitting prohibited conduct .................. Encouragement provisions permitted ...........0....0..00 000000000. PART 3—EXEMPTION FROM MEMBERSHIP Who may apply for exemption................0. 0000.00 eee eee eee Procedure for hearing .......... 0.00002 cece eee eee Deciding application ........... 0.000... eee eee How payment must be applied. ...........0 0.000.000. 2c eee eee Exemption certificate ......... 0... eee Industrial Relations 118120122 124 126128130134137 Expiry of exemption certificate ........ 0.0... c cece eee 100 PART 4—CIVIL REMEDIES Who may apply ...... 6... eect eens 100 Conciliation required before hearing ............. 0000 c cece eee eee 100 Right to be heard... 6.6... eee eee 101 Remedies 2.0.1.2... 0.0 cece ee tenet eee n ene eeee 101 Payment of penalty ....... 0.6.6 102 Evidence of prohibited conduct ........... 0.00 cece cece eee eee eee 102 CHAPTER 5—AWARDS PART 1—FORM AND APPLICATION Form, effect and term of award .......... 0.0 ccc cece cece eens 103 Persons bound by award ......... 2.00.0 cece cece eee eee eee 103 PART 2—COMMISSION'S POWERS Making, amending and repealing awards ................-0 eee sees 104 Content of awards ....... 6... e ccc te eee n eee ee 105 Dispute resolution procedures in each award ............-.-.0 000 eee ee 106 Awards that fix wage rates 2.0.0... cece eee 106 Flow-on of certified agreements .... 2.2... 66.0 c cece eee eee eee eee 107 Review of awards... 0.0... c cece eett eet eens 107 Review of industrial instruments referred by the Anti-Discrimination Commission .... 6.0.0... 0 0 00sec cece eee eens 107 PART 3—EXEMPTIONS Exemptions... 0.0... c cece eee ett e ee n ee 108 PART 4—GENERAL Enforceability of awards ........... 0.0 cece cece eee eee eee eee 108 Effect of appeals on awards .......... 0... e cece teen eee 108 Inconsistency between awards and contracts .............-.0000 sees 109 PART 5—WAGES AND EMPLOYMENT CONDITIONS FOR APPRENTICES AND TRAINEES Apprentice's and trainee's employment conditions ................... 109 Order setting minimum wages and conditions ................00000005 110 Order setting tool allowance .........0.... 0.00 eee eee 111 Industrial Relations 142144146148150152 154156158 161 Termination of employment before apprenticeship or traineeship cancelled or completed .........0... 0.0002 eee eee eee 112 PART 6—LABOUR MARKET PROGRAMS Orders for wages and employment conditions ....................0... 112 CHAPTER 6—AGREEMENTS PART 1—CERTIFIED AGREEMENTS Division 1—Making agreements Certified agreements... ........ 0.00 eee eee 114 Who may make certified agreements ..............0 0 ccc eee eee eee 115 Proposed parties to be advised when agreement is proposed............ 115 What is to be done when an agreement is proposed................4. 116 Negotiations for project agreements .......... 6... c cece eee eee eee 117 Negotiations must be in good faith... 0.6.0... 118 Peace obligation period to assist negotiations ...................005 118 Assistance in negotiating by conciliation ..................00 esse eee 118 Arbitration if conciliation unsuccessful ............ 0.00 e eee eee eee 120 Determinations made under s 149 ....... 2... ccc cece eee eee 121 Steps to be repeated if proposed agreement is amended............... 122 Certificate as to requested representation .............. 0000 e eee 123 Division 2—Certifying agreements Time for applying for certification.......... 0.0... cece eee ee 123 Notice of hearing 2... 2.0... eee ete ee 123 Right of employee organisation to be heard ..............-.00000000 123 Certifying an agreement ..............0..0.0.00.000.0.0020.00...00000. 124 When commission to refuse to certify an agreement.................. 126 Other options open to commission instead of refusing to certify AQFECMENE . eee eens 127 Procedures for preventing and settling disputes ...................... 128 Division 3—No-disadvantage test When an agreement passes the no-disadvantage test.................. 129 Special case—employee eligible for supported wage system........... 129 Special case—employee undertaking approved apprenticeship or traineeship 2.2... eect eens 130 Industrial Relations 165167 169171 173 175177179 183 185 Deciding designated awards .... 1.0... 66. cece eee eee 131 Division 4—Effect of certified agreements When a certified agreement is in operation ................00 00s e eee 131 Certified agreement's effect on awards, agreements or orders .......... 132 Persons bound ......... 00... 132 Successor employers bound ........... 6000s cece e cece eee e eee 133 Division 5—Extending, amending or terminating certified agreements Extending a certified agreement ................. 0000.0 134 Amending a certified agreement .......... 0.00. e cece eee eee 134 Amendment if discrimination between unionists and non-unionists ...... 136 Other options open to commission instead of refusing to approve amendment of agreement ........... 0... e eee eee eee ee 137 Terminating certified agreement on or before its nominal expiry date.... 137 Terminating agreement after its nominal expiry date.................. 138 Division 6—Industrial action Protected industrial action .......... 0... e cece eee eee 138 Notice of industrial action to be given... 6.0.6... eee eee eee ee eee 140 Secret ballot about taking industrial action.................-.000000- 140 Industrial action must be properly authorised ........................ 141 No protection if certification application not timely .................. 142 Employer not to dismiss employee for engaging in protected industrial action... 0.6.66... 142 Remedies if employee dismissed etc. for engaging in protected industrial action... 0.6.66... 143 When industrial action must not be taken. ..........0...00..0000000. 144 Division 7—Penalty provisions Penalty provisions .....................0.0000000000000020000000. 144 Penalties for contravening penalty provisions ................00000005 145 Division 8—General Secret ballot on valid majority ............ 00000 c cece e eee eee ee 147 Coercion of persons to make, amend or terminate certified agreements etc. ©... 6... 6. eee eee eee eee 147 Complementary laws ..... 0.6... c cece eee eens 148 Industrial Relations 188193195197200203205207210 PART 2—QUEENSLAND WORKPLACE AGREEMENTS Division 1—Preliminary Definitions for pt 2... 0.6... cece cece cence tte 148 Proposed QWAs and ancillary documents—interpretation ............. 150 Functions and powers of commission .... 6.6.5... 000 cece cece eee ees 150 Division 2—General rules about QWAs and ancillary documents QWAs and ancillary documents only have effect as provided by this part... 6... eee ttt e teens 151 Collective QWAS... 0... eee eee eee 151 Division 3—Making, amending or terminating a QWA Employer and employee may make a QWA..... 2... 0. eee eee eee eee 151 Matters to be included in QWA ..... 2.2... eee eee 152 Nominal expiry date of QWA ... 2... 6. eee eee eens 153 Period of operation of QWA .... 6... eens 153 Bargaining agents ...... 2.0.00. 154 Amending a QWA ... 2... eect eee n eens 155 Terminating a QWA .... 1. eee eee tenet eee 155 Division 4—Filing QWAs and ancillary documents Filing QWAs and ancillary documents ..............0 000s cece eee ee 156 Filing requirements ........ 0.0... c cece eee eee eee eens 156 Employer's declaration must be accurate ............0.0. cece eee eeee 157 Division 5—Approving QWAs and ancillary documents Additional approval requirements for QWA and ancillary documents .... 157 Approving QWA .. 0.6... ee 159 Approving amendment agreement .............. 0.0 c eee ee eee eee 160 Approving other ancillary documents ............ 0000 e eee e cece eee 161 Commission must issue approval or refusal notice.................05. 161 Undertakings taken to be included in QWAS ............-.-.00 eee eee 162 Commission to issue copies of approved QWAs and ancillary documents ..... 6.6... cece ett nt eens 162 Division 6—No-disadvantage test When does a QWA pass the no-disadvantage test.................04. 162 Special case—employee eligible for supported wage system........... 163 Industrial Relations 214216219221 223 225227231233 Special case—employee undertaking approved apprenticeship or traineeship 2.2... eect eens 163 Deciding designated awards .... 1.0... 66. cece eee eee 164 Division 7—Effect of QWAs QWA's effect on awards, certified agreements or orders............... 165 Successor employers bound ........... 6000s cece e cece eee e eee 165 Parties must not contravene QWA ... 1.2.2... 00. 166 Conciliation for agreements ........... 0.0 e eee eee eee ee 166 Industrial action by party tO QWA ... 1... eee eee 166 Division 8—Penalty provisions and remedies Penalties for contravening this part ............. 0.0 cece eee eee eee 166 Damages for contravention of QWA ......... 0.6. ee eee ences 167 Compensation to new employee for shortfall in entitlements ........... 167 Injunctions 2.0... cece ete nett nents 168 Division 9—General Hindering QWA negotiations ......... 0... cece eee eee eee 168 Persons must not apply duress or make false statements in connection with QWA etc. ............ 0022. 169 Employer must give copy of documents to employee ................. 169 Intervention not permitted .......... 6.6... eee eee eee 169 Reports and advice about development in making QWAs.............. 169 Evidence... 2... cece ene nett eens 170 Signature for corporation ....... 6... cece eee eee eens 170 CHAPTER 7—INDUSTRIAL DISPUTES PART 1—NOTICE OF INDUSTRIAL DISPUTE Notice of industrial dispute... 2.0.6.0... 000s 171 PART 2—ACTION FOR SETTLING INDUSTRIAL DISPUTES Action on industrial dispute .......... 0... e ccc cece eee eee ee 172 Mediation by commission ...........60 00 ee eee eee eee 173 Compulsory conference... 2.0... teens 173 Enforcing commission's orders... 0.0.0.0... cece eee eee eens 174 Remedies on show cause .......... 0.0 cece cece cnet eee 175 Industrial Relations 236 238240244246 248250 PART 3—BALLOTS Secret ballot on strike action ........ 0... 0c cece eee eee eee Effect of ballot adverse to strike... 6.6.1... cece eee eee eee eee ees PART 4—INDUSTRIAL ACTION Indemnity against agent's unauthorised actions ...................... Payments for strikes can not be compelled ..................02.0.000. Orders the commission may make................ 0000000000000 0 eee Commission not to deal with claims for payments for strikes........... Right to refuse to work if imminent health or safety risk............... CHAPTER 8—INDUSTRIAL TRIBUNALS AND REGISTRY PART 1—INDUSTRIAL COURT Division 1—Industrial Court of Queensland Continuance... 0... cece eee ete ee nee neeeee President of the court... 2.0.0... eee eee eee When a judge is appointed as president ........................00.. When president holds office. . 2.2.0.0... eee eee Acting president of the court......... 0.000.000. eee eee eee ee Division 3—Jurisdiction and powers of the court Constitution of court ............0...0000...00000000000220000000. Court's jurisdiction... 0.0.0... eee eee eee Court's interpretation ........ 0.0... eee eee eee Court may refuse to proceed... 2.0... 2. ee eee eee Contempt of court ...........0..000.0.000000000 2222. Division 4—President's annual report President's annual report .......... 0.000.000. cee eee eee eee Division 5—President's advisory committee Advisory committee established. ............00.... 0000000000 00000. Functions of advisory committee... 2.00... 0.00... PART 2—INDUSTRIAL RELATIONS COMMISSION Division 1—Continuance and composition Continuance... 0... cece eee ete ee nee neeeee Industrial Relations 258260263 265267269 271 274276278280282 Composition... 0.0... t teen eens 187 Division 2—Membership of the commission President of the commission .............. 0.00000. c cece eee eee eee 188 Vice president of the commission .............. 0c cece eee eee eee 188 Commissioners ..... 0.0.0 eee eee eee 188 When commissioner holds office ......... 0.00... 189 Acting vice president, commissioner administrator or other Commissioner... 2... eee eee eee 190 Restrictions on appointment ......... 0.6... c eee eee eee 190 Removal of commissioners from office .............0...00 000000000. 190 Division 3—The commission Administrative responsibilities for the commission and registry......... 191 Commission's jurisdiction ........ 0. cece eee eee eee 191 Commission to prevent discrimination in employment ................ 193 Commission's jurisdiction is exclusive ............ eee eee eee eee eee 193 Commission may refuse to proceed ....... 6.6... o cece eee 193 President or commissioner administrator to consider efficiencies that may be achieved by allocating matters to dual commissioners... ... 193 Reallocation of commission's work ............. 000000000 ce eee eee 194 Commission may continue to hear reallocated work without re-hearing evidence .... 2... 6... eee ete 194 Decision of full bench......... 000002 194 Division 4—Commission's functions and powers Commission's functions .... 0.0.00... 0000 c ccc eee eee eee 194 General powers... 1... 6. cece cece tet eens 195 Power to declare persons to be employees ...............-0 00 eee eee 196 Power to amend or void contracts ......................020...020000. 197 Power to grant injunctions ......... 6. eee eee ee 199 Power to recover unpaid wages and superannuation contribution etc. .... 200 Orders about representation rights of employee organisations........... 203 Procedures for reopening .......... 0. cece ete teeeeee 205 Reference to full bench. .......... 0.00... 206 Case stated to court... 2... ee eee 207 Industrial Relations 284286288 292295298300302304 Power to enter and inspect ...............0...0.0.00.0.0.0.00...00000. Interpretation of industrial instruments ....................000022000. Conducting a secret ballot .............0.0.0....0.0...0.....220.000. Other powers... 0... eee General rulings ...... 0.0.00 2 eee eee eee Statement of policy ......... 0.00.2 eee eee ee PART 3—INDUSTRIAL MAGISTRATES Division 1—Industrial Magistrates Court Industrial Magistrates Court .............0.0.0....0..0002002020220.0200000. Division 2—Industrial magistrates Office of Industrial Magistrate ...........0.0...0..0...........000000. Division 3—Constitution and jurisdiction of Industrial Magistrates Court Constitution of Industrial Magistrates Court ......................00. Magistrate's jurisdiction ......................0..0000.00.2.000000. Magistrates' jurisdiction is exclusive..............0...00 00000002 e ee PART 4—INDUSTRIAL REGISTRY Division 1—Industrial registry Industrial registry... 0.0.0... eee eee eee Functions of the registry ...............0......000..020020.202020..000000. Seal of the registry... 0.0.02 cee ee Division 2—Industrial registrar and staff PART 5—ARRANGEMENTS WITH OTHER AUTHORITIES Division 1—Member may also be member of Australian commission Member may hold other appointment ..........................000. Industrial Relations 307 310312315 318 320322324 326 Division 2—Dual commissioners Appointment of Commonwealth official as commissioner.............. 218 Role of dual commissioner... 2.0.2... 0.00... c eee eee eee 219 Division 3—References to Commonwealth official Reference of matter to Commonwealth official ...................... 219 Division 4—Conferences and joint sessions with industrial authorities Conferences with industrial authorities ..............0.0..........000. 220 Joint sessions with industrial authorities ................0.........00. 220 Similar matters before full bench and industrial authority.............. 221 Member's powers in joint session... 2.2.2.2... eee eee eee eee 221 President may decide matter not to be dealt with in joint session ....... 221 Division 5—Other functions etc. and arrangements Functions and powers vested in commission by other jurisdictions ...... 222 Arrangements with Commonwealth public service................00-. 222 PART 6—PROCEEDINGS OF COURT, COMMISSION, MAGISTRATES AND REGISTRAR Division 1—Definitions Definitions for pt 6.2... 6.6... eect tte 223 Division 2—Starting proceedings and service of process Starting proceedings .......... 6. cece eee eee eee eee 223 Service of process 1.0.0... cee eee eee eee ee 224 Division 3—Conduct of proceedings Representation of parties... 0.00.6... cece eee eee eens 225 Basis of decisions of the commission and magistrates................. 226 Competence and compellability of witnesses ..............0..000000: 227 Intervention... 0.6... cette nent ees 228 Adjournment by registrar... 0.0.6.6. 228 State employee to give information .............0 00000 cece cece 228 Division 4—Powers Exercise of commission's powers ...... 6.6.60 229 Interlocutory proceedings .......... 6.0 cece e cece cece eee eee 229 Power to order inquiry or taking of evidence..................--00005 230 Industrial Relations 329332334336 344 346348 Power to administer oath... 0.6... cece eee eee eee 230 Powers incidental to exercise of jurisdiction.................00 00000 231 Power to obtain data and expert evidence.................0 0c cece 232 Division 5—Decisions and enforcement Decisions generally ......... 0... eee eee teens 233 Reserved decisions ..................0000.0000000 0022. 233 Commission decisions to be in plain English ....................005 234 Extent of decisions and their execution. ..............0...0020.00000, 234 Costs eect e eee e eee eee 235 Recovery of amounts under orders ..............0 0020s 235 Division 6—Protections and immunities Protection and immunities ............ 0... cece eee eee eee eee 236 Division 7—Rules and practice Directions about practice ©2010... . cece eects 238 CHAPTER 9—APPEALS Division 1—Appeals to Court of Appeal Appeal from court or full bench ......... 6... ccc eee 238 Division 2—Appeals to court Appeal from commission, magistrate or registrar... ............00005- 239 Division 3—Appeals to full bench Appeal from commission, magistrate or registrar... ............00005- 240 Division 4—Appeals to commission Appeal from registrar... 2.0... eee eee eee 241 Appeal against stand-downs ...................0..00.00.0000000000. 242 Division 5—General Definition for div5 2.0... cece eects 243 Time limited for appeal... 6.6.6.6... eee eee eee 243 Stay of decision appealed against ............. 0. cece eee eee ees 243 Nature of appeal... 0.6.6. 243 Finality of decisions ..................0....000000200000220200000. 244 Industrial Relations 351354356359 361365 367369 CHAPTER 10—ENFORCEMENT Division 1—Appointment Appointment of inspectors ........ 06... 245 Functions 2.0.0... 6. c cent e ete e eens 245 POWEDS 00 eee 246 Division 2—General powers Entry to places... 2... eee eee eens 246 General powers after entering workplaces ........... 0.000 e eee eee 247 Power to require documents to be produced ................0 000 eee 248 Power to require information ............ 066 e cece cece eee ee 249 Power to require name and address .............-. eee cece e eee eee 249 Division 3—Powers to claim and deal with unpaid amounts Paying employee's wages etc. to inspector... . 6.0.6... ee eee ee eee eee 250 Inspector's obligation for amounts paid on demand ................... 251 Division 4—General Obstructing inspectors... 6... eee eens 252 Impersonating inspectors ........ 6... eee eee 253 Validity of inspector's conduct despite administrative contravention ..... 253 CHAPTER 11—RECORDS AND WAGES PART 1—EMPLOYERS RECORDS Division 1—Definitions Definitions for pt]... 6.6... eee tet e eee 253 Division 2—Authorised industrial officers Authorising industrial officers... 2.0.0.0... cece eee eee 254 Revocation and suspending industrial officer's authorisation ........... 255 Division 3—Employers to keep certain records Time and wages record—industrial instrument employees ............. 255 Time and wages record—non-industrial instrument employees.......... 257 Employee register 2.0.0... 0... cece ccc eect eee eee 258 Records to be kept in English. ................ 00000 c cece eee eee ee 259 Notation of wages details ....... 06... c eects 259 Industrial Relations 372374377 379382384386388390 392394396 Division 4—Power to inspect certain records Inspection of time and wages record—inspector............000 000000: 260 Right of entry—authorised industrial officer. ...........0.00 000 e eee 261 Right to inspect and request information—authorised industrial officer... 262 Inspection of employee register and index—tegistrar...............5-5 264 Inspection of time and wages book—employees .................-455 264 PART 2—WAGES AND OCCUPATIONAL SUPERANNUATION Division 1—Interpretation Definitions for pt 2... 0.6... cece cece cence tte 265 References to service .............0..0000 0002. 266 Division 2—Protection for wages Wages are first charge on amounts payable to employer............... 266 Assignment of amount payable ineffectual against claims for wages..... 266 Amounts paid or payable to employer to be applied in payment of WAGES 2. eee eee eee eee eee 267 Attachment notices ........ 00... cece cece nee 268 Effect of attachment notice... 0.0.66... cece eee eee 268 Orders for payment by prime contractor or clerk of the court ........... 269 Employees to be paid according to when attachment notices are served .. 270 Employee may sue prime contractor ........... 0... e cece eee eee ee 271 Cessation of attachment not to prejudice prime contractor............. 271 Discharge by employee for payment received .................0.00505 272 Remedy of subcontractor's employees ...............0 000 cee ee ee 272 Prime contractor's right to reimbursement...................020-0 000s 272 Magistrate may hear claim for wages ex parte. ............0 0000s e ee 273 Division 3—Paying and recovering wages Wages etc. to be paid without deduction .................0 0c eee eee 273 Paying apprentices or trainees for course time................02.000. 274 Paying Wages... 6... eee teen eens 275 Contract not to stipulate mode of spending wages.................... 276 Payment of unpaid wages if employee's whereabouts unknown......... 277 Overpaid wages 1.0.0... cece eee eet teen nets 277 Deduction of wages in lieu of notice of termination................... 278 Industrial Relations 399402404 406408 410412 414416419421 Minor may recover unpaid wages... 1.6.0.6... ccc e cece eee 278 Recovery of unpaid wages etc... 2.6... cee eee eee 278 Enforcement of magistrate's order .......... 0000. e cece eee eee ee 280 Division 4—Wages in rural and mining industries Wages recoverable against mortgagee if mortgagor defaults ........... 280 Distress warrant levied on property of mortgagor or mortgagee .......... 282 Application of ss 401 and 402 to mines... 2.6.0... eee eee eee 282 Priority in payment of wages earned in mine ................00000005 283 Division 5—Occupational superannuation Agreement about superannuation fund.....................0.- eee ee 284 Contributing occupational superannuation. ..................--00 000s 285 Power to order contribution to particular fund.................-..-0-5 285 Recovery of unpaid superannuation contribution ..................4. 286 CHAPTER 12—INDUSTRIAL ORGANISATIONS PART 1—PRELIMINARY Definitions for ch 12 2.2... cece eect ete ete eee 287 Meaning of "corporation" for ch 12... 0.0.0... eee cee 290 Meaning of "counterpart federal body" forch 12................0005 291 Meaning of "office" for ch 12.2.2... 0... 292 PART 2—REGISTRATION Division 1—Registration applications Application is to commission ..... 6.0.6... cece eee eee eee 293 Who may apply ...... 6... eect eens 293 General requirements for applications ........... 0.0.00 c cece eee 293 Additional requirements for employee organisation application......... 294 Additional requirements for employer organisation applications......... 294 Division 2—Hearing of registration applications Right to object... 0... eee eee eens 295 Registration criteria for all applications .................. 00 eee ee eee 295 Additional criteria for registration as employee organisation ........... 296 Additional criteria for registration as employer organisation............ 297 Industrial Relations 423 425 427 430433436 438441 Division 3—Grant of application Grant of application... 6.0... 0... eee ee 297 Incorporation on registration if not already incorporated ............... 298 Division 4—Registered name and office Registered name of organisation that is not a corporation.............. 298 Registered office 2.0.06... ccc ccc eee eee ene ee 299 Division 5—Miscellaneous Registrar's functions for register and rules............. 0000s eee eens 299 Change of callings .... 6.6... ccc eect eee 299 PART 3—GENERAL CONTENTS OF RULES Division 1—Requirement to have rules Organisation must have complying rules... 2.6... 0... e eee eee 300 Division 2—General requirements for contents Requirements for all organisations ................020 0c eee eee 300 Additional requirements for organisation that is not a corporation ....... 301 Rules must give conditions for loans, grants and donations............. 302 Division 3—Permitted contents Permitted contents—general.... 6.6.6... e cece 303 Filling casual vacancies... 6.0... eee ees 303 Mortality benefit fund ......... 6... cece eee eee 303 Division 4—Restrictions on contents General restrictions .. 0.2... 60. c cece tenets 304 Maximum office term for organisation that is not a corporation......... 304 PART 4—ELECTION RULES Division 1—Preliminary Part does not apply to corporations ........... 0... e cece eee eee eee 305 Meaning of "direct voting system" for pt4................0 00 cece 305 Meaning of "collegiate electoral system" for pt4.................5.. 305 Division 2—General requirements General requirement of transparency ....... 6.6... eee eee eee eee 306 Rules must provide for elections .......... 0.000 c cece eee eee eee 306 Direct voting or collegiate electoral system must be used ............. 306 Industrial Relations 445448450 453 455457460462464 Division 3—Direct voting systems Subdivision 1—Preliminary Application of div3 6.0.0... 6... cece eects Subdivision 2—Requirements for direct voting systems General requirements for direct voting system ....................... Required contents—ballots........0.. 00... Compulsory voting permitted ............0.......0.......0.......0000. Subdivision 3—Alternative types of secret ballot Approval application... 2.0.00... 2c eee eee eee Consideration of application. ............ 0.000.000 eee eee eee eee Grant of approval........ 0.0.02 eee eee eee Cancellation of approval ......... 0.0.0... cee eee eee eee Division 4—Collegiate electoral systems Subdivision 1—Preliminary Application of div4........ 0.0.0.0... eee eee eee Subdivision 2—Requirements for collegiate electoral systems Restriction on persons who may be elected by electoral college........ Requirements for second or subsequent stage...............00..0000. Division 5—Model election rules Model election rules ...........0...0...0000.0000000000.0020202000000. Model election rules may be adopted .........................0000. Adoption without change ........... 0... eee eee eee Effect of adoption without change ......................00...00000. Model rules apply if election rules do not comply with pt4............ PART 5—VALIDITY AND COMPLIANCE WITH RULES Powers of court... 0... eee eee eee ee Who may apply ................0.00.00000 022. Financial help for application. .............. 0.000.000 0c cece eee Interim orders... 2... eee eee Hearing application .......... 0.00.00... eee Effect of declaration ............0......0.0.0..00000.00.020..000000. Direction must be complied with .............0... 000.0000 02. e ee eee Industrial Relations 467469 471473475478482 484486488 PART 6—AMENDMENT OF RULES Division 1—Amendments by commission or registrar Breach of demarcation dispute undertaking ................00..000505 314 When registrar may amend rules ............0 000 e cece e eee eee 314 Amendment to cure noncompliance if rule declared void.............. 315 How amendment must be made... 1.2... 0.6... cece eee 315 Division 2—Amendments by organisation Subdivision 1—Name or eligibility rule amendments Application of sdiv 1.0.0.0... 0. eee eee eee 316 Requirements for amendment ........... 0.000 e cece eee eee eee 316 Approval to change 'union' to 'organisation' inname ................. 316 Approval for other name amendment ...................22 0c eee ee 316 Approval for eligibility rule amendment ..................2 000s scene 317 When amendment takes effect ............ 6.00 c cece cece ee 318 Registrar must record amendment ............... 00 cece cece eee eee 318 Subdivision 2—Other rule amendments Application of sdiv2....... 00... cece cece eee ene 319 When amendment may be made ............. 0... cece eee eee ee 319 When amendment takes effect. .........00.. 000000000 cece eee eee 319 PART 7—CONDUCT OF ELECTIONS Division 1—Preliminary Part does not apply to corporations ........... 0... e cece eee eee eee 320 Division 2—Preparatory steps Organisation or branch must file prescribed election information........ 320 Registrar must arrange for elections .................. 000 c eee eee 320 Division 3—Conduct of elections Electoral commission to conduct elections ..................0020000. 320 Organisation's rules generally to be complied with ................... 321 Action or directions by electoral officer ..............00 0c eee eee ee 321 Substitute electoral officer 2.0.0... cece eee eee 321 Death of candidate ......... 0... eee eee 321 Election result report... 2.6.66... 321 Industrial Relations 490 492494496500502 504506 511 Election costs to be paid by State ......... 0... eee cece eee eee 322 Ballot records must be preserved ..........0 000s cece eee eee 322 Division 4—Offences about conduct of elections Using organisation's resources for election purposes ..............-++. 322 Obstructing conduct of election ......... 6... ccc eee cece eee eee 322 Failing to comply with electoral officer's direction................... 322 Obstructing electoral officer's direction... 2.2.6.0... 00.0 c cece ee 323 Offences about ballots ...... 0.0... cece ccc eeeeee eee 323 Disadvantaging candidates etc. ........ 6... cece eee eee eee 324 Unauthorised access to ballot paper... 2.6.0... eee eee 324 PART 8—ELECTION INQUIRIES Division 1—Preliminary Part does not apply to corporations ........... 0... e cece eee eee eee 325 Division 2—Applications and referrals to commission Commission may conduct election inquiry ................0000 eens 325 Who may apply ...... 6... eect eens 325 Requirements for application ........... 6.0 cece eee cece eee eee 325 Referral to Commission... 0.6.6.6... cece eee teens 326 Division 3—Investigations and interim orders Commission may authorise registrar to investigate ................... 326 Interim orders... 0.6... eee tet t eee 327 Person acting under interim order... 2.2.0... cece cece ees 328 When interim order ends... 6.0.6... 328 Division 4—Conduct of election inquiries Commission's functions and powers for inquiry ..................0055 328 Orders if irregularity found .......... 0... cece eee eee 329 Enforcing pt 8 orders «1.2... 6.6 eect eee eee 329 Division 5—Offences about election inquiries Disadvantaging applicant for inquiry ............ 6.6 eee eee 330 Obstructing orders being carried out... 2.2.2... eee 330 Division 6—Miscellaneous Financial help for application. ................ 0.00.0 e cece eee eee 330 Industrial Relations 515 517520522525 527529532534 Costs of fresh election ordered by inquiry.......... 0.0.0. eee 331 PART 9—OFFICERS Division 1—Preliminary Definitions for pt... 6.6... cnet teens 331 Meaning of "convicted person" for pt9...... 6... cece eee eee 332 Division 2—Disqualifications from candidature or holding office Subdivision 1—Disqualifications Persons under 18 1.1... cece eee ete ee 333 Convicted persons—candidature ........... 000 cece eee eee 333 Convicted persons—holding office .... 2.6... 0.0 333 Subdivision 2—Applications for leave to hold office Prospective candidates .......... 0.0 c cece eee eee eens 334 Existing office holders... 0.0.6... 0.0. c cece eee eens 334 Consideration of leave applications ............. 000 ccc eee eee eee 334 Disqualification period may be given if leave refused................. 335 Leave or fixing of disqualification period does not affect div2 ......... 335 Subdivision 3—Miscellaneous Declaration about eligibility or ceasing to hold office................. 335 Certificate evidence for div2......... 0... cc eee eects 336 Division 3—Officers' financial management duties Application of div3 6.0.0... 6... cece eects 336 Duty of honesty 1.0.0.6... cece ect eeeeeeen eens 336 Duty of reasonable care and diligence ........... 0.0.0 c cece eee 336 Officers with material personal interests .............-...0 00 cee eeeeee 337 Other duties not affected 0.0.0... eee 337 PART 10—MEMBERSHIP Division 1—Eligibility and admission to membership Eligibility 2.0.0... cee teen e ene ee 338 Obligation to admit ..... 2... 0. eect tenet eee 338 Obligation to give union card... 6... eee eee 339 Members under 18 .......... 0.00. c cece cece eee nee e eens 339 Industrial Relations 536 539542545547549552555557 Division 2—Membership disputes Court may decide... 6.6... eee eet eens 339 Deciding application........ 6.0... cece eee 340 Division 3—Membership subscriptions Obligation to give receipt .... 0.6... cee ee eee ees 340 Division 4—Resignation Division applies despite rules... ............ 00000 c cece cece eee eee 341 Resignation... 0.0.6... eee teens 341 Resignation if membership subscription unpaid for 2 years............. 341 Division 5—Liabilities of member to organisation Meaning of "member's liability" for div5 ............ 000. e cece eens 341 Recovering member's liabilities ................ 0.000 c cece 342 Limit on liability after resignation........... 00... sce e eee eee 342 PART 11—REGISTERS Members and officers registers .... 0.6... cece eee 343 Requirements for members register .........00 000 e cece eee eee ee 343 Officers register—required particulars ..................0200 eee eee 343 Annual obligation to file officers register .............00.. eee eens 344 Obligation to file officers register on change of office holder........... 344 Inspection of registers . 2... 6.6.6. 344 Registrar's directions about registers... 2.0.00... cece eee eee 344 PART 12—ACCOUNTS AND AUDIT Division 1—Preliminary Definitions for pt 12.0.0... 0... eee eee 345 Meaning of "financial year" for pt 12 ....... 0... 0c eee eee eee 345 Part applies to branches with separate financial affairs................ 346 Division 2—Accounting obligations Obligation to keep accounting records ........... 0000s 346 Obligation to prepare accounts .............. 00000 e cece eee eee eee 347 Member may apply for prescribed information...................00-- 347 Registrar's directions about accounts and accounting records........... 348 Industrial Relations 559561563566568570 572574576579 581 Division 3—Audits Obligation to have auditor......... 0.0.0.0... How auditor may be removed ........... 0.000... c ce eee eee eee Requirements for audit report......... 0.0.0.0... eee eee eee Audit report must not be knowingly false or misleading ............... Auditor must notify registrar of contravention......................0. Auditor's powers 2... 0.0.22 ee Auditors have qualified privilege..........0.....00...00 0000000000. Division 4—Presentation and filing of audit reports Obligation to present to general or committee meeting................ Obligation to publish audit report and accounts ...................... Notice of meetings to auditor... 2.2... 0.0.2. Auditor may attend meetings ...............................00000. False or misleading statements about reports. .............0...0.000. Report and accounts must be filed.............0...000.00 000000000. Division 5—Registrar's investigations and audits Registrar's investigations .....................000.0000000020000000. Registrar's directions for investigation. ...............0....00022000. Notice of contravention to organisation................0....0022000. Court may order compliance with notice..............0...000..00000. Registrar's examinations and audits.............0....000...0000000. Powers of registrar's auditor ..............00.....0....020.02020..000000. Costs of examination and audit by registrar's auditor.................. Division 6—Loans, grants and donations Obligation to file details of loans, grants and donations ............... Member may inspect statement ............0....0 0.000.000. c eee ee PART 13—EXEMPTIONS Division 1—Exemptions for organisations with counterpart federal bodies Subdivision 1—Exemption from holding election Exemption if federal election held. ................0.0.0000..00000. Obligation to notify change in federal election result ................. Industrial Relations 583585 587589 591593 595597 599601 603 Subdivision 2—Exemption from keeping members or officers register Exemption... 0.0.0.0... cee eee eee Effect of exemption ........0.... 0.000 eee eee eee Obligation to file copy of federal officers register .................... Obligation to give notice of change or contravention.................. Subdivision 3—Exemption from accounting or audit provisions Who may apply ................0.00.00000 022. Grant of exemption ..................0....0000.000000.00..0.0000. Obligation to file copies of federal audit documents .................. Obligation to give notice of change or contravention.................. Division 2—Exemption from accounting or audit obligations for employer organisations that are corporations Who may apply ................0.00.00000 022. Grant of exemption ..................0....0000.000000.00..0.0000. Obligation to file copies of reports under other Act or law ............. Obligation to notify registrar of contravention of other law............. Division 3—Exemptions from requirement that electoral commission conduct election Subdivision 1—Grant of exemption Who may apply ................0.00.00000 022. Requirements for application .........................0....0..00000. Publication of application. ...........00.. 0.002 e eee eee Hearing application .......... 0.00.00... eee Subdivision 2—Obligations if exemption granted Application of sdiv2......... 00.0... eee Obligation to appoint returning officer................00...00002000. Election result report... 2.0... eee eee Ballot records must be preserved ........... 0000000000 c cee eee eee ee Division 4—Cancellation of exemptions Cancellation grounds .......... 0... eee eee eee Alternatives to cancellation for federal election exemption ............ Industrial Relations 606608610612 614618620623625 PART 14—VALIDATIONS Division 1—Preliminary Definitions for pt 14.0.2... 2... 6. ccc cece ete 370 Division 2—Validations Limitation on validations if substantial injustice ..................... 370 Validation of certain acts done in good faith ....................005 371 Certain acts by person purporting to act in an office .................. 372 Election not invalid because of compliance with order................ 372 Election not invalid because of contravention of pt 13, div 3, sdiv2..... 372 Validation of certain events after 4 years .......... 0.0.00 e eee eee 373 Counterpart federal body not a ground for challenge .................. 373 Amalgamations and withdrawals ............ 0000 e cece eee eee 374 Division 3—Orders about invalidity or its effects Commission may decide... 6.6.6... ete 375 Who may apply ...... 6... eect eens 375 Orders about effects of invalidity ............. 0.0.00 375 PART 15—AMALGAMATIONS AND WITHDRAWALS Division 1—Preliminary Definitions for pt 15.0.6... cece ete 376 Division 2—Amalgamations Amalgamation permitted only under div2 .............0.- 2 eee eens 377 Commission to approve proposed amalgamation .................-. 377 Additional regulation-making powers for amalgamations .............. 377 Effect of amalgamation .............. 0000s 378 Holding office after amalgamation .............. 00000 e eee eee eee 379 Division 3—Withdrawing from amalgamation Requirements for withdrawal ........... 0c cece eee eee eee eee ee 380 Commission to approve proposed withdrawal ............. 0.00000 e eee 380 Additional regulation-making powers for withdrawals ................. 380 Registration of constituent part on withdrawal ...................005 381 Members of constituent part may join newly registered organisation..... 381 Industrial Relations 628630 632634636 639 641643646649 Division 4— Offences about amalgamation or withdrawal ballots Obstructing conduct of ballot ...........0..0.0....0.....00..22...20.0000. Offences about ballots. . 2.0... 0.0. Disadvantaging another to induce vote or omission to vote............. Unauthorised access to ballot paper. ........0... 0.000.000 02. c eee eee Division 5—Miscellaneous Using resources for proposed amalgamation.....................000. Costs of ballot conducted by electoral commission................... No action for defamation in certain cases... ......00..00..00 0000000. Commission may resolve difficulties .............00...0000..000000. Registration of property transferred under pt 15 ..................005% Part applies despite laws or instruments ........................000. PART 16—DEREGISTRATION Division 1—Preliminary Definitions for pt 16.0.2... 0. ccc cece eee eet Division 2—General deregistration provisions Subdivision 1—Bringing deregistration proceedings General deregistration grounds ............ 0.000.000 0 cece eee ee eee Who may bring deregistration proceedings .................0...0000. Subdivision 2—Deciding deregistration proceedings Hearing on ground other than industrial conduct.................00... Hearing on industrial conduct ground..............0.....0000 00.0002 Deferral of deregistration for industrial conduct ...................... When deferral order ends ...................0.0000202020.002020.002000. Incidental orders or directions... ........... 000000 e cece eee eee eee Division 3—Small organisations Commission may revieW ... 6.2... eee Deregistration proceedings by commission .................0..00000- Deciding proceedings ......................0000.000002002020200000. Division 4—Effects of deregistration Application and purpose of div4 ....................0.......202000. When deregistration takes effect ...................0.......0.0.000. Industrial Relations 651653 655657660662664666668670672675678 Effect on corporate status ............0..0..0.0.00.00.00000.20200.2000000. No release of liabilities... 0.0... Effect on property... 2.0.2.2 ee eee eee eee Effect on certain instruments ........... 0.06 cece eee eee PART 17—MISCELLANEOUS Hearing to be given before making decision.....................000. Notice of registrar's decisions .......... 00... eee eee Falsely obtaining organisation's property ......................0000. Wrongfully applying organisation's property.................02...00. Stamp duty... 0.0... eee ee CHAPTER 13—OFFENCES Disobeying penalty orders... 2.2.6... eee eee Improper conduct towards member, magistrate or registrar............. Contempt by witness ........ 0.00... False or misleading statements ....................0.....20.000000. False or misleading documents ........................0202.20000000. Obstructing officers .........00.0.0.0.0.0.0.0000000.000000000.0020000000. Avoiding Act's obligations .........................2..00..0.000000. Non-payment of wages .......... 0.00 c cece een ee Accepting reduced wages .......... 0... cee cee Publishing statement about employment on reduced wages ............ Offence to offer or accept premiums ...........................000. Contraventions of industrial instruments ...............00-0 00 esse eee Injunction restraining contraventions ..................000..0000000. Persons considered parties to offences............0....0000.0000000. Executive officers must ensure corporation complies with ss 368, 406 and 666 ... 1... eee nett ene ee ee Attempt to commit offence ........... 0.0... eee References to making false or misleading statements................. References to engaging in conduct .......................0....000. CHAPTER 14—LEGAL PROCEEDINGS General application of jurisdictional provisions ...................... Evidentiary provisions affecting proceedings ........................ Industrial Relations 680682684687689691 693 695697699701703705707 Confidential material tendered in evidence ................00000000 408 Evidentiary value of official records ............ 0.0 cece cece eee eee 410 Proof of certain facts by statement...............00...000...000000. 411 Evidentiary value of certificate of trustee of superannuation fund ....... 411 Offence proceedings generally. ..........0.... 0000.00 cee eee eee 412 Organisations may start proceedings .............. 0 cece cece eee eee 413 Recovering amounts from organisations .............0.00e eevee eee ee 413 CHAPTER 15—EMPLOYEES IN EMPLOYMENT OF STATE Application of Act to State... 2... 2. eee eee eee 414 Conflict between industrial instruments etc. and statutory decision. ..... 414 Protection of public property and officers ..............00 eee eee eee 415 Ambit of reference to State... 6... eee 416 Representation of public sector units... 2.6.6.6... cece eee 416 Industrial cause affecting diverse employees ...............000000005 416 CHAPTER 16—INDUSTRIAL RELATIONS ADVISORY COMMITTEE Committee established ......... 6.0.00 cece cee cette eee eee 417 Functions of committee... 0.0.6.6... ccc ee ee eee 418 CHAPTER 17—GENERAL Employees working in and outside State............... 0.0 eee eee eee 418 Student's work permit ........ 0... c cece eee eee 419 Aged or infirm persons permits... 0.0.0... 0.000 e eens 419 Copy of award and certified agreement to be displayed ............... 420 Incorporating amendments in awards, certified agreements or orders. .... 420 Obsolete industrial instrument ............ 0.00 c eee eee eee 420 Certificate of employment on termination......................0000. 421 False pretences relating to employment .........................0.. 421 Protection from liability .................0....000....0....0...20.000. 422 Payments to financially distressed... .... 2.60... cece eee eee 423 Notices and applications to be written.............0...000..000 0000. 424 Inaccurate descriptions .....................000.000000002202000000. 424 Confidentiality of information...............0....... 000 cece 424 Application of Act generally .......... 0.000.000. cece 424 Industrial Relations 709 712 714 719 723 727 Approved forms ....... 6c c cece cece eee teen eee 425 Regulation-making power ........... 0.06 e cece eee 425 CHAPTER 18—SAVINGS AND REPEALS Savings ©... 6.6 eee e eens 426 Regulation and rules to continue ............ 000. eee eee ee 427 Repeals ... 0... cen eee teens 427 CHAPTER 19—SAVING AND TRANSITIONAL PROVISIONS FOR INDUSTRIAL RELATIONS ACT 1999 PART 1—EXISTING INDUSTRIAL AGREEMENTS Existing industrial agreement continues ..............000 eee eens 428 Industrial agreement displaced by QWA ......... 6... c cece eee eee 429 PART 2—EXISTING CERTIFIED AGREEMENTS New termination provisions for existing certified agreements........... 429 EFAs that prevail over certified agreements ..................000005- 429 Certified agreements that prevail over EFAs .............-.000000005 430 PART 3—EXISTING EFAS Existing EFA continues ........ 6.6.00 cece cece eens 430 EFA displaced by QWA and determination ................000000005 430 PART 4—UNLAWFUL DISMISSALS Dismissals before commencement of this section .................4.. 431 PART 5—REPRESENTATION RIGHTS OF EMPLOYEE ORGANISATIONS Applications under the repealed Act, s 293 .......... 00. c cece eee eee 431 PART 6—REFERENCES AND APPOINTMENTS References to repealed Act or IO Act ...... 0.00... e eee eee eee 432 Appointments continue ........ 6... 6c cee eect eens 432 PART 7—VETE ORDERS AND DETERMINATIONS Proceedings commenced under the Vocational Education, Training and Employment Act 1991.20... 2... eee ees 432 Orders and determinations under the Vocational Education, Training and Employment Act 1991.20... 2... eee ees 433 PART 8—ORGANISATIONS Organisations with dual corporate status ............ 0.000 eee e ee eee 434 Continued registration of organisations ..............000e eee e eee ee 435 Industrial Relations 729731734 737739741 744746 Applications for exemption from membership of an organisation........ 435 Amalgamations ........... 000 c cece cee eee teen ent eeee 435 Withdrawals from amalgamation ..... 0.0.0.0... cee eee ee eee eee 436 Election and ballot expenses ........... 0.00 cece eee cee eee eee eee 436 Political objects funds ...... eee 436 CHAPTER 20—AMENDMENT OF PUBLIC SERVICE ACT 1996 Actamended ....... 0... cece cece enn een ents 437 Amendment of s 22 (Application of Act to certain public sector units etc.) 2.2... ee. 437 Amendment of s 33 (Functions of commissioner) .................... 437 Amendment of s 69 (Basis of employment—tenure or contract) ........ 439 Amendment of s 70 (Basis of employment for contract employment) .... 440 Amendment of s 81 (Action because of surplus) ..................... 440 Amendment of s 85 (Mental or physical incapacity).................. 440 Amendment of s 114 (Application of Act to general and temporary employees) .... 6.0.6... ence eee eens 440 Replacement of s 117 (Inconsistency between directives and industrial agreements) .......... 0.0002 o eee eee 441 117 Relationship between directives and awards etc................ 441 Amendment of s 118 (Regulation-making power) ................-4. 441 Amendment of s 136 (Existing regulations) ................00000000 441 Amendment of sch 1 (Public service offices and their heads) .......... 442 Amendment of sch 3 (Dictionary) ...........................002000. 442 CHAPTER 21—CONSEQUENTIAL AMENDMENTS Consequential amendments ......................0..2000000000000. 442 SCHEDULE 1 ........................ 443 INDUSTRIAL MATTERS SCHEDULE 2 ........................ 446 APPOINTMENTS AND PROCEDURES PART 1—PRESIDENT, VICE PRESIDENT, COMMISSIONER ADMINISTRATOR AND COMMISSIONERS Remuneration... 0.0.0.0... eee eee ee 446 Benefits—Judges (Pensions and Long Leave) Act.................05: 447 Benefits—Superannuation (State Public Sector) Act 1990............. 447 Industrial Relations ist131618 Leave of absence... 6.66... PART 2—REGISTRAR Preservation of registrar's rights if a public service officer ............. Leave of absence of registrar ...........0.0.0..0.0....020.0...0.0..000000. Resignation of registrar... 2.2... eee PART 3—INSPECTORS Appointment conditions... 2.0.0.0... cee eee eee Limitation on powers... 2.6... cee ee eee Identity cards ........... 0002. PART 4—PRESIDENT'S ADVISORY COMMITTEE Definitions for pt4........... 00... Term of office... 6... eect een teens Remuneration of appointed members. ...........0... 000000000 000005 Meetings of president's advisory committee................0...0000. PART 5—INDUSTRIAL RELATIONS ADVISORY COMMITTEE Definitions for pt 5 2... 66... cece teens Term of office... 6... eect een teens Deputies of members .......... 0.000002 cee eee eee ee Remuneration of appointed members. ...........0... 000000000 000005 Conduct of committee meetings ...............000... 00 e eee eee eee SCHEDULE 3 ........................ CONSEQUENTIAL AMENDMENTS ACTS INTERPRETATION ACT 1954 «1.2... oo eee AMBULANCE SERVICE ACT 1991... cece eee ANTI-DISCRIMINATION ACT 1991 0... cece ASSOCIATIONS INCORPORATION ACT 1981 ............-.-2200005 BRISBANE TRADES HALL MANAGEMENT ACT 1984 ............. BUILDING AND CONSTRUCTION INDUSTRY (PORTABLE LONG SERVICE LEAVE) ACT 1991 1.2.0.0... cece eee eee CORRECTIVE SERVICES (ADMINISTRATION) ACT 1988 .......... CRIMINAL JUSTICE ACT 1989 ........ 0. eee eee eee EDUCATION (WORK EXPERIENCE) ACT 1996 ................... ELECTORAL ACT 1992 ................0.00000002000002020000000. Industrial Relations ELECTRICITY ACT 1994 1.00... 0... eee eee 461 EQUAL OPPORTUNITY IN PUBLIC EMPLOYMENT ACT 1992 ...... 461 FUNERAL BENEFIT BUSINESS ACT 1982 .............00......04. 461 HEALTH RIGHTS COMMISSION ACT 1991 ...........0......0000. 462 HEALTH SERVICES ACT 1991 .. 0.0... eee eee 462 INDUSTRIAL RELATIONS (PROTECTION FROM INVALIDITIES) ACT 1991 oo... eee eee. 462 JUDGES (SALARIES AND ALLOWANCES) ACT 1967 ............. 463 LIQUID FUEL SUPPLY ACT 1984 ...........................00.. 464 LOCAL GOVERNMENT ACT 1993 ........ 0... eee eee eee eee 464 PARLIAMENTARY SERVICE ACT 1988 ..............000.....000. 464 PASTORAL WORKERS' ACCOMMODATION ACT 1980 ............ 465 POLICE SERVICE ADMINISTRATION ACT 1990 .................. 466 PRIVATE EMPLOYMENT AGENCIES ACT 1983 ................0.. 466 PUBLIC SERVICE ACT 1996 ...... 0... 2c eee eee eee 467 QUEENSLAND TOURIST AND TRAVEL CORPORATION ACT 1979 .. 468 RACING AND BETTING ACT 1980)... 2.2... 468 RETIREMENT VILLAGES ACT 1988 ................0000.....5000. 469 SUPERANNUATION (STATE PUBLIC SECTOR) ACT 1990 ......... 469 TRADING (ALLOWABLE HOURS) ACT 1990 ...............02.... 469 VOCATIONAL EDUCATION, TRAINING AND EMPLOYMENT ACT 1991) oo... eee. 471 WHISTLEBLOWERS PROTECTION ACT 1994 .................... 477 WORKCOVER QUEENSLAND ACT 1996 .............00000220000. 478 WORKPLACE HEALTH AND SAFETY ACT 1995 .................. 478 SCHEDULE 4 ........................ 479 AMENDMENT OF MODEL ELECTION RULES SCHEDULES ........................ 482 DICTIONARY A BILL FOR An Act relating to industrial relations in Queensland, and for other purposes sl 36 s3 Industrial Relations The Parliament of Queensland enacts— CHAPTER 1—PRELIMINARY Short title 1. This Act may be cited as the Industrial Relations Act 1999. Commencement 2.(1) Section 744 commences, or is taken to have commenced, on 1 July 1999. (2) The remaining provisions of this Act commences on a day to be fixed by proclamation. Principal object of this Act 3. The principal object of this Act is to provide a framework for industrial relations that supports economic prosperity and social justice by— (a) (b) (c) (d) (e) (f) providing for rights and responsibilities that ensure economic advancement and social justice for all employees and employers; and providing for an effective and efficient economy, with strong economic growth, high employment, employment security, improved living standards, low inflation and national and international competitiveness; and preventing and eliminating discrimination in employment, and ensuring equal remuneration for men and women; and helping balance work and family life; and promoting the effective and efficient operation of enterprises and industries; and ensuring wages and employment conditions provide fair standards in relation to living standards prevailing in the Com ND w 12 141719 21 24 26 s4 37 s5 Industrial Relations community; and (g) promoting participation in industrial relations by employees and employers; and (h) encouraging responsible representation of employees and employers by democratically run organisations and associations; and (i) promoting and facilitating the regulation of employment by awards and agreements; and (j) meeting the needs of emerging labour markets and work patterns; and (k) promoting and facilitating jobs growth, skills acquisition and vocational training through apprenticeships, traineeships and labour market programs; and (1) providing for effective, responsive and accessible support for negotiations and resolution of industrial disputes; and (m) assisting in giving effect to Australia's international obligations in relation to labour standards. Definitions 4. The dictionary in schedule 5 defines particular words used in this Act. Who is an employee (a) (b) (c) 5.(1) An "employee" is— a person employed in a calling on wages or piecework rates; or a person whose usual occupation is that of an employee in a calling; or a person employed in a calling, even though— (i) the person is working under a contract for labour only, or substantially for labour only; or (11) the person is a lessee of tools or other implements of production, or of a vehicle used to deliver goods; or 19 2124 27 29 $6 38 $6 Industrial Relations (11) the person owns, wholly or partly, a vehicle used to transport goods or passengers; or (d) a person who is a member of a class of persons declared to be employees under section 275;! or (e) each person, being | of 4 or more persons who are, or claim to be, partners working in association in a calling or business; or (f) for proceedings for payment or recovery of amounts—a former employee; or (g) an outworker; or (h) an apprentice or trainee. (2) A person who is undertaking an industry placement within the meaning of the Vocational Education and Training (Industry Placement) Act 1992 is not an employee. Who is an employer 6.(1) An "employer" is— (a) a person employing, or who usually employs, 1 or more employees, for the person or someone else; or (b) for employees employed in a department of government—the chief executive of that department. (2) The following persons are also employers— (a) a person carrying on a calling in which employees are usually employed, even though for the time being employees are not employed in it; (b) a person who is managing director, manager, secretary or member of the managing body (however called) of a corporation, partnership, firm or association of persons; (c) if 4 or more persons are, or claim to be, partners working in association in a calling or business—the partnership firm constituted, or claimed to be constituted, by the persons; 1 Section 275 (Power to declare persons to be employees) C0 ANY DWN BW NK 13 15 17 19 2226 28 s7 39 s8 Industrial Relations (d) a group training scheme or labour hire agency that arranges for an employee (who is a party to a contract of service with the scheme or agency) to do work for someone else, even though the employee is working for the other person under an arrangement between the scheme or agency and the other person; (e) for proceedings for payment or recovery of amounts—a former employer. (3) In this section— "labour hire agency" means an entity that conducts a business that includes the supply of services of employees to others. What is an industrial matter 7.(1) An "industrial matter" is a matter that affects or relates to— (a) work done or to be done; or (b) the privileges, rights or functions of— (i) employers or employees; or (11) persons who have been, or propose to be, or who may become, employers or employees; or (c) a matter (whether or not an industrial matter as defined in this section) that the court or commission considers has been, is, or may be a cause or contributory cause of an industrial action or industrial dispute. (2) However, a matter is not an industrial matter if it is the subject of proceedings for an indictable offence. (3) Without limiting subsection (1) or affecting subsection (2), a matter is an industrial matter if it relates to a matter mentioned in schedule 1. Provisions about appointments and procedures of committees 8. Schedule 2 contains provisions about— (a) the president and commissioners; and (b) the registrar; and S02 OID WHBWPK e 121417 1921 23 25 2729 s9 40 s9 Industrial Relations (c) inspectors; and (d) the members, and procedure, of — (i) _ the president's advisory committee; and (11) the industrial relations advisory committee. CHAPTER 2—GENERAL EMPLOYMENT CONDITIONS PART 1—GENERAL Division 1—Working time Working time 9.(1) This section applies to an employee under an industrial instrument. (2) The periods for which an employee is required to work must not exceed— (a) 6 days in any 7 consecutive days; or (b) 40 hours in any 6 consecutive days; or (c) 8 hours in any day. (3) An employee must be paid overtime at the rate of at least— (a) for a calling in which more than 1 shift is worked in a day—double time; and (b) for another calling—time and a half. (4) If an employee is paid at a higher rate than the minimum rate prescribed in the industrial instrument, the overtime rate must be worked out on the higher rate. (5) If practicable, an employee is entitled to a rest pause of at least 10 minutes in each 4 hours of working time on a day. BR WwW NY 12 1416 18 2124 s10 41 s10 Industrial Relations (6) The rest pause— (a) is part of the employee's working time; and (b) if continuity of work is necessary—must be taken when it does not interfere with continuity. (7) This section does not apply if an industrial instrument provides otherwise. (8) In this section— "overtime" means time worked— (a) outside any of the periods mentioned in subsection (2); or (b) before or after the fixed or recognised times of starting or finishing work on a day in a calling. Division 2—Sick leave Entitlement 10.(1) This section does not apply to casual employees or pieceworkers. (2) An employee is entitled to— (a) at least 8 days sick leave on full pay for each completed year of employment with an employer; and (b) for each completed period of employment of less than a year—at least 1 day's sick leave on full pay for each completed 6 weeks of employment with an employer. (3) However, the employee's entitlement is conditional on— (a) the employee promptly notifying the employer of— (i) any illness that will cause the employee to be absent from work; and (11) the approximate period for which the employee will be absent; and (b) ifthe employee is absent for more than 2 days— (i) the employee giving the employer a doctor's certificate about Bw N = ee Bo © ON AW a N 1417 1922 24 26 28 sll 42 sll Industrial Relations the nature of the illness and the approximate period for which the employee will be absent; or (11) the employee giving the employer other evidence of the illness to the employer's satisfaction. (4) Subsection (3) does not apply if— (a) an industrial instrument provides otherwise; or (b) the employee and employer agree otherwise. (5) For a person who did not have an entitlement to sick leave before the commencement of this section, this section does not confer an entitlement in relation to employment before the commencement. Division 3—Annual leave Entitlement 11.(1) This section does not apply to casual employees or pieceworkers. (2) For each completed year of employment with an employer, an employee is entitled to— (a) if the employee is not a shift worker—at least 4 weeks annual leave; or (b) if the employee is a shift worker—at least 5 weeks annual leave. (3) Annual leave is exclusive of a public holiday that falls during the leave. (4) In working out a completed year of employment, the following periods when an employee is absent without pay are not to be taken into account— (a) aperiod of more than 3 months when an employee is absent with the employer's approval; (b) a period when an employee is absent without the employer's approval, unless the employee is absent for not more than 3 months because of illness or injury certified to by a doctor. (5) In this section— SOM NY DAW BW NY e 13 15 17 20 2225 27 s12 43 s14 Industrial Relations "shift worker" means an employee who— (a) is employed in a calling in which shifts are worked 24 hours a day, 7 days a week; and (b) works a rotating roster that includes each of the shifts. Taking annual leave 12.(1) An employee and employer may agree when the employee is to take annual leave. (2) If the employee and employer can not agree, the employer— (a) may decide when the employee is to take leave; and (b) must give the employee at least 14 days written notice of the starting date of the leave. (3) An employee and employer may agree that the employee take all or any part of the employee's annual leave before becoming entitled to it. (4) If the employee takes leave before becoming entitled to it, the employee is only entitled, at the end of the completed year of employment, to the balance of the leave that would be due at the end of the year. Payment for annual leave 13.(1) Unless an employee and employer otherwise agree, the employer must pay the employee for annual leave in advance. (2) The employer must pay for the leave— (a) at the ordinary rate being paid to the employee immediately before the leave is taken; or (b) if, immediately before taking the leave, the employee is being paid at a higher rate than the ordinary rate—at the higher rate. Payment for annual leave on termination of employment 14.(1) This section applies if an employee's employment is terminated by the employee or employer. (2) If the employee has not taken all the annual leave the employee is 19 22 24 27 $15 44 $15 Industrial Relations entitled to, the employee is presumed to have taken the leave from the day the termination takes effect (the "termination day"). (3) The employer must immediately pay the employee for the annual leave not taken, including any public holiday that falls in the period the employee is presumed to have taken the leave. (4) If the employee has been employed for any period of less than 1 year, the employer must pay the employee proportionate annual leave for the period. (5) The employer must pay the employee at least the ordinary rate being paid to the employee immediately before the termination day, unless an industrial instrument states otherwise. (6) This section does not apply to an employee who is a transferred employee under section 69.2 Division 4—Public holidays Public holidays 15.(1) An employee, other than a casual employee or pieceworker, who would ordinarily be required to work on a day on which a public holiday falls is entitled to full pay for the time the employee would ordinarily have been required to perform work on that day. (2) Subsection (1) applies whether the employee— (a) works on that day; or (b) does not work on that day because of the holiday. (3) Subsection (1) does not apply if the employee is rostered off on a public holiday. (4) If an employee who is bound by an industrial instrument does work on a public holiday, the employer must pay the employee— (a) for the greater of the hours worked or 4 hours— (i) if the employee would ordinarily be required to work on a 2 Section 69 (Continuity of service—transfer of calling) Rw Ne = ee EB OowU OID w ion' wn os 1719 2124 26 28 $15 45 $15 Industrial Relations day on which a public holiday falls—at the rate of 1.5 times the hourly rate, in addition to the amount payable under subsection (1); or (11) if the employee would not ordinarily be required to work on a day on which a public holiday falls—at the rate of double time and a half; or (11) if the employee is a casual employee—at the rate of double time and a half; and (b) if the employee works outside the employee's ordinary working hours—at double the rate stated in the instrument for that work. (5) Subsections (3) and (4) do not apply if an industrial instrument provides otherwise. (6) Subject to another Act that restricts work or trading hours on particular days of the year, the employee and employer may agree that the employee work on a public holiday at ordinary rates in exchange for another day off on full pay. (7) The commission may confer on an employee an entitlement to extra annual leave on full pay, instead of extra pay, for work on a public holiday. (8) In a district in which a holiday is not appointed for an annual agricultural, horticultural or industrial show, the employee and employer must agree on an ordinary working day that is to be treated as a show holiday for all purposes. (9) An employee, while employed by the 1 employer, is only entitled to leave on full pay for a show holiday once each calendar year. (10) In this section— "double time and a half" means 2.5 times the hourly rate. "ordinary working day" means a day on which the employee would ordinarily be required to perform work. "ordinary working hours", for an employee, means the hours between the employee's ordinary starting time and ordinary finishing time under a relevant industrial instrument. "show holiday" means— (a) a public holiday appointed for an annual agricultural, horticultural aon Hnnst WwW NR 12 1416 18 2022 24 26 28 3033 s 16 46 s17 Industrial Relations or industrial show under the Holidays Act 1983, section 4;3 or (b) for a district in which a public holiday is not appointed for an annual agricultural, horticultural or industrial show—the day agreed on by the employee and employer under subsection (8). PART 2—FAMILY LEAVE Division 1—Parental leave Who this division does not apply to 16.(1) This division does not apply to— (a) casual employees, other than casual employees who are engaged, by a particular employer on a regular and systematic basis, for several periods of employment during a period of at least 2 years immediately before the employee seeks to access an entitlement under this division (a "long term casual employee"); or (b) seasonal employees; or (c) pieceworkers. (2) This division applies to long term casual employees only so far as it relates to maternity leave. (3) This division applies to long term casual employees even if some of the periods of employment were before the commencement of this section. Definitions for pt 2 17. In this part— "adoption leave" means short adoption leave or long adoption leave. "child", for adoption leave, means a child who is under the age of 5 years, 3 Holidays Act 1983, section 4 (Special holidays) RwW 1113 15 17 19 2123 s 18 47 s 18 Industrial Relations but does not include a child who— (a) has previously lived continuously with the employee for a period of at least 6 months; or (b) is the child or stepchild of the employee or employee's spouse. "long adoption leave" means leave taken by an employee to enable the employee to be the primary caregiver of an adopted child. "long parental leave" means— (a) for a pregnant employee—maternity leave; or (b) for an employee whose spouse gives birth—leave taken by the employee to enable the employee to be the child's primary caregiver. "maternity leave" means leave that a pregnant employee takes— (a) for the pregnancy; or (b) for the birth of her child; or (c) to enable her to be the child's primary caregiver. "parental leave" adoption leave. means long parental leave, short parental leave or "short adoption leave" means leave taken by an employee at the time of the placement of an adopted child with the employee. "short parental leave" means leave taken by an employee, in connection with the birth of a child of the employee's spouse, at the time of — (a) the birth of the child; or (b) the other termination of the pregnancy. Entitlement 18.(1) This section details the parental leave entitlement of an employee for— (a) an employee who is not a long term casual employee and who has had at least 12 months continuous service with the employer; or Fowo ABN AW fF WN a ws KR WwW WN Nn ee Na a \©o Nw a) NN wioN 26 28 s19 48 s19 Industrial Relations (b) along term casual employee. (2) A pregnant employee is entitled to an unbroken period of up to 52 weeks unpaid maternity leave— (a) for the child's birth; and (b) to be the child's primary caregiver. (3) For the birth of a child of an employee's spouse, the employee is entitled to the following leave— (a) an unbroken period of up to 1 week's unpaid short parental leave; (b) a further unbroken period of up to 51 weeks unpaid long parental leave. (4) For the adoption of a child, an employee is entitled to the following leave— (a) an unbroken period of up to 3 weeks unpaid short adoption leave; (b) a further unbroken period of up to 49 weeks unpaid long adoption leave. (5) However, parental leave must not extend beyond | year after the child was born or adopted. (6) In this section— "continuous service" means service, including a period of authorised leave or absence, under an unbroken employment contract. Notices and documents—maternity leave 19.1) This section applies if a pregnant employee wants to take maternity leave. (2) The employee must give the employer— (a) at least 10 weeks' written notice of intention to take the leave; and (b) at least 4 weeks' written notice of the dates on which she wants to 4 "spouse" of an employee includes— (a) a former spouse; and (b) ade facto spouse, including a spouse of the same sex as the employee. 23 26 s 20 49 s21 Industrial Relations start and end the leave. (3) The employee must, before starting the leave, give the employer— (a) a doctor's certificate confirming that she is pregnant and the expected date of birth; and (b) a statutory declaration by the employee stating the period of any parental leave sought by her spouse. Notices and documents—parental leave other than maternity or adoption leave 20.(1) This section applies if an employee wants to take parental leave, other than maternity leave or adoption leave. (2) The employee must give the employer— (a) for long parental leave, at least 10 weeks' written notice of intention to take the leave; and (b) at least 4 weeks' written notice of the dates on which the employee wants to start and end the leave. (3) The employee must, before starting the leave, give the employer— (a) a doctor's certificate confirming that the employee's spouse is pregnant and the expected date of birth; and (b) for long parental leave—a statutory declaration by the employee stating— (i) the period of any maternity leave sought by the employee's spouse; and (11) the employee is seeking the leave to be the child's primary caregiver. Notices and documents—adoption leave 21.(1) This section applies if an employee wants to take adoption leave. (2) The employee must give the employer— (a) for long adoption leave—written notice of any approval to adopt a child at least 10 weeks before the expected date of placement of 2629 s 22 50 s22 Industrial Relations the child for adoption purposes (the "expected placement date"); and (b) written notice of the dates on which the employee wants to start and end the leave, as soon as practicable after the employee is notified of the expected placement date but, in any case, at least 14 days before starting the leave. (3) The employee must, before starting the leave, give the employer— (a) a statement from an adoption agency of the expected placement date; and (b) for long adoption leave—a statutory declaration by the employee stating— (i) the period of any adoption leave sought by the employee's spouse; and (11) the employee is seeking the leave to be the child's primary caregiver. (4) In this section— "adoption agency" means an agency, body, office or court, authorised by a Commonwealth or State law to perform functions about adoption. Reasons not to give notice or documents 22.(1) An employee does not fail to comply with section 19, 20 or 21 if the failure was caused by— (a) the child being born, or the pregnancy otherwise terminating, before the expected date of birth; or (b) the child being placed for adoption before the expected placement date; or (c) another reason that was reasonable in the circumstances. (2) However, the employee must give the employer— (a) notice of the period of the leave within 2 weeks after the birth or placement; and (b) in the case of the birth of a living child—a doctor's certificate stating the date on which the child was born. Fo OA NY DAWNPW NK ee ee wn Ree ns e a ile' on 21 23 25 27 29 31 s 23 51 s 26 Industrial Relations Notice of change to situation 23. An employee must notify the employer of any change in the information provided under section 19, 20 or 21 within 2 weeks after the change. Continuity of service 24.(1) Parental leave does not break an employee's continuity of service. (2) Parental leave is not to be taken into account in working out the employee's period of service, other than— (a) to decide the employee's entitlement to a later period of parental leave; or (b) as expressly provided in this Act, an industrial instrument or employment contract. Spouses not to take parental leave at same time 25.(1) An employee is not entitled to parental leave, other than short parental leave or short adoption leave, when his or her spouse is on parental leave. (2) If the employee contravenes subsection (1), the period of parental leave that the employee is entitled to is reduced by the period of leave taken by his or her spouse. Cancelling parental leave 26.(1) Parental leave applied for but not started is automatically cancelled if— (a) the employee withdraws the application for leave by written notice to the employer; or (b) the pregnancy terminates other than by the birth of a living child; or (c) the placement of the child with the employee for adoption purposes does not proceed. (2) If, while an employee is on parental leave— RwWN eorAynry Dw 12 151822 24 26 28 s27 52 s 28 Industrial Relations (a) the pregnancy terminates other than by the birth of a living child; or (b) the child in relation to whom the employee is on parental leave dies; or (c) the placement of the child with the employee for adoption purposes does not proceed or continue; the employee is entitled to resume work at a time nominated by his or her employer within 2 weeks after the day on which the employee gives his or her employer a written notice stating the employee intends to resume work and the reason for the resumption. (3) This section does not affect an employee's entitlement to special maternity leave or sick leave under section 37.5 Parental leave with other leave 27.(1) An employee may take any annual leave or long service leave to which the employee is entitled instead of or together with parental leave. (2) However, the total period of leave can not extend beyond the total period allowed under section 18.6 (3) While the employee is on unpaid parental leave, the employee is not entitled to paid sick leave or other paid leave, unless the employer agrees. (4) In this section— "other paid leave" means paid leave authorised by law or by an industrial instrument or employment contract. Interruption of parental leave by return to work 28.(1) An employee and employer may agree that the employee break the period of parental leave by returning to work for the employer, whether on a full-time, part-time or casual basis. 5 Section 37 (Special maternity leave and sick leave) 6 Section 18 (Entitlement) oN AW BW Ne e ow ee NR 15 17 19 22 26 s 29 53 s31 Industrial Relations (2) The period of parental leave can not be extended by the return to work beyond the total period allowed under section 18. Extending period of parental leave 29.(1) An employee may extend the period of parental leave once only by written notice given to the employer at least 14 days— (a) before the start of the parental leave; or (b) ifthe leave has been started—before the leave ends. (2) The notice must state when the extended period of leave ends. (3) The total period of leave can not be extended beyond the total period allowed under section 18, unless the employer agrees. Shortening period of parental leave 30. If the employer agrees, an employee may shorten parental leave by written notice given to the employer at least 14 days before the employee wants to return to work. Effect on parental leave of ceasing to be the primary caregiver 31.(1) This section applies if— (a) during a substantial period starting on or after the start of an employee's long parental leave, the employee is not the child's primary caregiver; and (b) considering the length of the period and any other relevant circumstances, it is reasonable to expect the employee will not again become the child's primary caregiver within a reasonable period. (2) The employer may notify the employee of the day, at least 4 weeks after the employer gives the notice, on which the employee must return to work. (3) If the employee returns to work, the employer must cancel the rest of the leave. Ne — SCO OND WB wW 1316 182123 26 28 s 32 54 s 33 Industrial Relations Return to work after parental leave etc. 32.(1) This section applies to— (a) an employee who returns to work after parental leave; or (b) a female employee who returns to work after special maternity leave or sick leave under section 37. (2) The employee is entitled to be employed in— (a) the position held by the employee immediately before starting parental leave; or (b) if the employee worked part-time because of the pregnancy before starting maternity leave—the position held by the employee immediately before starting part-time work; or (c) if the employee was transferred to a safe job under section 36 before starting maternity leave—the position held by the employee immediately before the transfer. (3) If the position no longer exists but there are other positions available that the employee is qualified for and is capable of performing, the employee is entitled to be employed in a position that is, as nearly as possible, comparable in status and remuneration to that of the employee's former position. (4) An employer must make a position to which an employee is entitled available to the employee. (5) If a long term casual employee's hours were reduced because of the pregnancy before starting maternity leave, the employer must restore the employee's hours to hours equivalent to those worked immediately before the hours were reduced. Employer's obligations 33.(1) On becoming aware that an employee or an employee's spouse is pregnant, or that an employee is adopting a child, an employer must inform the employee of— (a) the employee's entitlement to parental leave under this part; and (b) the employee's obligations to notify the employer of any matter under this part. 2832 s 34 55 s 35 Industrial Relations (2) An employer can not rely on an employee's failure to give a notice or other document required by this part unless the employer establishes that this subsection has been complied with. Dismissal because of pregnancy or parental leave 34.(1) An employer must not dismiss an employee because— (a) the employee or employee's spouse is pregnant or has applied to adopt a child; or (b) the employee or employee's spouse has given birth to a child or adopted a child; or (c) the employee has applied for, or is absent on, parental leave. (2) This section does not affect any other rights of — (a) an employer to dismiss an employee; or (b) a dismissed employee. Replacement employees 35.(1) The employer must, before a replacement employee starts employment, give the replacement employee a written notice informing the replacement employee of— (a) the temporary nature of the employment; and (b) the parent's right to return to work. (2) In this section— "replacement employee" means— (a) a person who is specifically employed because an employee (the "parent")— (i) _ starts parental leave; or (ii) is transferred to a safe job under section 36; or (b) a person replacing an employee who is temporarily promoted or transferred to replace the parent. Ne w CO ID Hw pp 1113 161921 23 25 27 s 36 56 s 37 Industrial Relations Transfer to a safe job 36.(1) This section applies whenever the present work of a female employee is, because of her pregnancy or breastfeeding, a risk to the health or safety of the employee or of her unborn or newborn child. (2) The assessment of the risk is to be made on the basis of — (a) adoctor's certificate given by the employee to the employer; and (b) the employer's obligations under the Workplace Health and Safety Act 1995. (3) The employer must temporarily adjust the employee's working conditions or hours of work to avoid exposure to the risk. (4) If an adjustment is not feasible or can not reasonably be required to be made, the employer must transfer the employee to other appropriate work that— (a) will not expose her to the risk; and (b) is, as nearly as possible, comparable in status and remuneration to that of her present work. (5) If a transfer is not feasible or can not reasonably be required to be made, the employer must grant the employee maternity leave, or any available paid sick leave, for as long as a doctor certifies it is necessary to avoid exposure to the risk. Special maternity leave and sick leave 37.(1) This section applies if, before an employee starts maternity leave— (a) the employee's pregnancy terminates before the expected date of birth, other than by the birth of a living child; or (b) the employee suffers illness related to her pregnancy. (2) For as long as a doctor certifies it to be necessary, the employee is entitled to the following types of leave— (a) unpaid leave ("special maternity leave"); (b) paid sick leave, either instead of, or as well as, special maternity leave. 23 25 28 31 s 38 57 s 39 Industrial Relations Special adoption leave 38. An employee who is seeking to adopt a child is entitled to up to 2 days unpaid leave to attend compulsory interviews or examinations as part of the adoption procedure. Division 2—Carer's leave Entitlement 39.(1) An employee may use up to 5 days of sick leave on full pay ("carer's leave") in each year to care and support— (a) members of the employee's immediate family when they are ill; or (b) members of the employee's household when they are ill. (2) The employee must, if required by the employer, produce a doctor's certificate or statutory declaration evidencing that the member is ill with an illness that requires care by another. (3) An employee can not take carer's leave if another person has taken leave to care for the same person. (4) Carer's leave may be taken for part of a day. (5) The employee must, if practicable, give the employer— (a) notice of the intention to take carer's leave before taking the leave; and (b) the name of the person requiring care and the person's relationship to the employee; and (c) the reason for taking the leave; and (d) the period that the employee estimates he or she will be absent. (6) If it is not practicable for the employee to notify the employer of the intention to take carer's leave before taking the leave, the employee must notify the employer at the first reasonable opportunity. (7) An employee may take unpaid carer's leave if the employer agrees. RwWN s 40 58 s 42 Industrial Relations Division 3—Bereavement leave Entitlement 40.(1) This section does not apply to casual employees or pieceworkers. (2) An employee is entitled to at least 2 days bereavement leave on full pay on the death of a member of the person's immediate family or household in Australia. (3) The employee must give the employer a copy of the funeral notice or other evidence of the death the employer reasonably requires. (4) An employee may take unpaid bereavement leave if the employer agrees. Division 4—Part overrides less favourable conditions This part overrides less favourable conditions 41. This part has effect despite— (a) another law of the State; or (b) an industrial instrument or order; to the extent that the law, instrument or order provides an employee with a benefit that is less favourable to the employee. PART 3—LONG SERVICE LEAVE Division 1—Definitions for pt 3 Definitions for pt 3 42. In this part— "continuous service" of an employee means— SO OI AWNAR WwW LB e 1315 17 22 s 43 59 s 43 Industrial Relations (a) in section 507—the period of continuous service the employee is taken to have had with an employer under section 50(4); and (b) elsewhere—the employee's continuous service with the same employer (whether wholly in the State, or partly in and partly outside the State). "owner" of a meat works includes a person who carries on the business of the works. "period between seasons" includes the period between— (a) the end of | season and the start of the next season; and (b) for a particular employee—the day the employee stops employment in 1 season and the day the employee starts employment in the next season. "season" means a period (whether falling completely in 1 calendar year or partly in 1 calendar year and partly in the next calendar year) when— (a) for the sugar industry— (i) sugar cane is delivered to, and crushed at, a sugar mill; or (i1) sugar cane is harvested, or farm work is performed, in the sugar industry; or (b) for a meat works—stock are delivered to, and slaughtered at, the works. Division 2—Employees generally Entitlement 43.(1) This section applies to all employees, other than seasonal employees. (2) An employee is entitled to long service leave on full pay of — (a) for the first 15 years continuous service—13 weeks; and (b) if the employee has completed at least a further 5 years 7 — Section 50 (Entitlement—employees in sugar industry and meat works) CNH WAR W Ne 1114 16 18 20 24 26 s44 60 s 44 Industrial Relations continuous service—another period that bears to 13 weeks the proportion that the employee's further period of continuous service bears to 15 years. (3) An employee is entitled to a proportionate payment for long service leave if— (a) the employee has completed at least 10 but less than 15 years continuous service; and (b) the employee's service is terminated by— (i) the employee's death; or (11) the employee; or (111) the employer, for a cause other than serious misconduct. (4) Long service leave is exclusive of a public holiday that falls during the period of the leave. (5) An employee who is entitled to long service leave elsewhere than under this Act, is entitled to leave that is at least as favourable as the entitlement under this section. (6) In this section— "proportionate payment" means a payment equal to the employee's full pay for a period that bears to 13 weeks the proportion that the employee's period of continuous service (stated in years, and a fraction of a year if necessary) bears to 15 years. Working out continuity of service for service before 23 June 1990 44.(1) This section applies to service of all employees who are not casual employees before 23 June 19908 (2) The repealed Industrial Conciliation and Arbitration Act 1961, sections 17, 18, 19 and 20, applies to— (a) the determination of the employee's continuous service before 23 June 1990; and 8 In all other circumstances, see part 6 (Continuity of service and employment). CM NID WHR WHe eS eK Oo ion' wn eRe DAuns a nN NNR Re re OO 24 26 28 s 45 61 s 46 Industrial Relations (b) the calculation of the employee's entitlement to long service leave in relation to continuous service before 23 June 1990. Taking long service leave 45.11) The commission may insert in an industrial instrument provisions— (a) about the time when, the way in which, and the conditions on which, long service leave may be taken; or (b) to the effect that leave in the nature of long service leave taken, before the provisions take effect, by an employee bound by the instrument must be deducted from the long service leave that the employee becomes entitled to under the provisions. (2) An employee and employer may agree when the employee is to take long service leave. (3) If the employee and employer can not agree, the employer may decide when the employee is to take leave by giving the employee at least 3 months written notice of the date on which the employee must take at least 4 weeks long service leave. (4) Subsection (3) applies subject to an industrial instrument. Payment for long service leave 46.(1) The employer must pay the employee for long service leave at the ordinary rate being paid to the employee immediately before the leave is taken. (2) However, if the employee is, immediately before taking the leave, being paid at a higher rate than the ordinary rate, the employer must pay the employee at the higher rate. (3) An employer must not reduce an employee's usual rate, before an employee starts long service leave, with intent to avoid the employer's obligation under subsection (2). (4) If satisfied an employer has done so, the commission may order the employer to pay the employee at the usual rate even though the employee was not being paid the usual rate immediately before starting leave. BOC wo NADA WB w ee ion' wn ee ee NAYDWN FA Co 21242730 s47 62 s47 Industrial Relations (5) If, during the employee's leave— (a) the ordinary rate is increased above the higher rate—the employer must pay the employee at the increased rate for the part of the leave period that the increased rate applies to; or (b) the ordinary rate is reduced—the employer may pay the employee at the reduced rate for the part of the leave period that the reduced rate applies to. (6) In this section— "usual rate" the rate at which the employee is being paid for ordinary time, being a rate that is higher than the ordinary rate. Division 3—Casual employees Continuity of service—additional considerations for casual employees 47.1) The service of an employee (a "casual employee") who is employed more than once by the same employer over a period is continuous service with the employer even though— (a) the employment is broken; or (b) any of the employment is not full-time employment; or (c) the employee is employed by the employer under 2 or more employment contracts; or (d) the employee would, apart from this section, be taken to be engaged in casual employment; or (e) the employee has engaged in other employment during the period. (2) However, the continuous service ends if the employment is broken by more than 3 months between the end of 1 employment contract and the start of the next employment contract. (3) In working out the length of an employee's continuous service— (a) the following service must not be taken into account— (i) _ service by the employee before 23 June 1990; (11) if the employee only obtained the entitlement because of the CSCO Om NDA BPW pp 1417 19 21 242729 s 48 63 s 49 Industrial Relations enactment of the repealed /ndustrial Relations Reform Act 1994, section 179—the employee's service between 23 June 1990 and 30 March 1994; and (b) subject to subsection (2), a period when the employee was not employed by the employer must be taken into account. (4) This section does not limit any other entitlement to long service leave that an employee may have. Taking long service leave—alternative provision for casual employees 48.11) An employer may agree with a casual employee that the entitlement to long service leave may be taken in the form of its full-time equivalent. Example— If an employee— (a) is entitled to be paid for 260 hours long service leave; and (b) works under an award that provides for a full-time working week of 40 ordinary working hours; the employee and the employer may agree that the employee take 61/2 weeks leave (260 + 40 = 61/5). (2) This section applies subject to a provision in an industrial instrument about the employee's long service leave. Payment for long service leave 49.11) The minimum amount payable to a casual employee for long service leave is worked out using the formula— actual service x 13 x hourly rate. 52 15 9 Section 17 (Definitions for pt 1) ND nO Wp 11 1316 18 20 23 25 s 49 64 s 49 Industrial Relations Example— An employee who worked 15 600 ordinary working hours over a 15 year period and is being paid an hourly rate of $10 would be entitled to be paid— 15600 x 13 x $10 52 15 = 260 x $10 = $2600. (2) If a dispute arises between an employee who is paid at piecework rates and the employer about the rate the employee should be paid for long service leave, the commission may decide the rate payable. (3) An employee and employer may agree on the times when, and the way in which, the employee will be paid for long service leave. (4) The commission may decide any matter relating to payment for long service leave that the employee and employer can not agree on. (5) An amount payable for long service leave becomes payable at a time agreed between the employee and employer or, if they can not agree, at a time decided by the commission. (6) In this section— "actual service" means the total ordinary working hours actually worked by an employee during the employee's period of continuous service. "casual employee" means an employee mentioned in section 47(1).!0 "hourly rate" means the hourly rate for ordinary time payable to the employee— (a) if the employee takes the long service leave—on the day that the employee starts the leave; or (b) ifthe employee's employment is terminated—on the date that the termination takes effect. 10 Section 47 (Continuity of service—additional considerations for casual employees) CN DA WA WY KE 12 14 1620 23 25 27 s 50 65 s 50 Industrial Relations Division 4—Seasonal employees Entitlement—employees in sugar industry and meat works 50.(1) This section applies to the following seasonal employees— (a) an employee employed in seasonal employment in the sugar industry; or (b) an employee employed in or about meat works in seasonal employment by the meat works owner. (2) The employee is entitled to long service leave on full pay of at least the number of weeks worked out using the following formula— section 43 entitlement x actual service. Example— An employee who worked half of each year, over a 15 year period, is entitled to half the section 43 entitlement, that is, half of 13 weeks leave or 6!/. weeks leave (13 x 7.5 = 61/5). (3) Service with the employer of an employee engaged in harvesting sugar cane or farm work in the sugar industry before 23 June 1990 must not be taken into account in working out the length of the employee's continuous service. (4) A period between seasons when the employee is not employed by the employer must be taken into account in working out the length of an employee's continuous service if— (a) in 1 season—the employee's service with the employer continued until the end of the season or until an earlier day when the employee's employment was terminated by the employer; and (b) in the next season—the employee's service with the same employer started on the season's opening or on a later day in the season when the employer required the employee to start employment. (5) If an employee is employed by the employer between seasons, the part of the period between seasons when the employee is employed must be taken into account in working out the length of the employee's actual CO ADR AR WwW wD 12 14 16 1820 2226 2830 32 s51 66 s 52 Industrial Relations service. (6) An employee who is entitled to long service leave elsewhere than under this Act, is entitled to leave that is at least as favourable as the entitlement under this section. (7) In this section— "actual service" means the total ordinary time actually worked by an employee during the employee's period of continuous service. "section 43 entitlement" means the entitlement to long service leave of an employee under section 43. Taking long service leave—employees in sugar industry and meat works 51.(1) This section applies to the following seasonal employees— (a) an employee employed in seasonal employment in the sugar industry; (b) an employee employed in or about meat works in seasonal employment by the meat works owner. (2) An employee may take long service leave between seasons. (3) Ifan employee takes leave between seasons, the leave is taken to have started when the employee last ceased employment with the employer. Other seasonal employees 52. The commission may decide the entitlement to long service leave of an employee— (a) who is employed in seasonal employment, but who is not employed— (i) in the sugar industry, or (11) in or about meat works; or (b) who is employed in other periodic employment that is not defined as casual employment by the relevant industrial instrument. Oo eo ND NA BWN 12 14 16 19 22 24 26 28 s 53 67 s 54 Industrial Relations Division 5—Miscellaneous Payment instead of long service leave on termination 53.(1) An employer must not make, and an employee must not accept, payment instead of long service leave except on termination of an employee's employment. Maximum penalty—40 penalty units. (2) A person must not enter into an arrangement under which— (a) an employee or the employer terminates the employee's service with the employer; and (b) the employer pays the employee for all or any long service leave that the employee is entitled to; and (c) the employer re-employs the employee within a_ period, commencing on the termination date, equal to the period of long service leave that payment was made for. Maximum penalty—40 penalty units. (3) If a magistrate finds that a person has contravened subsection (2), the magistrate may, in addition to any order the magistrate may make imposing a penalty, make any other order the magistrate considers appropriate. Payment instead of long service leave on death 54.(1) This section applies if an employee entitled to long service leave dies— (a) before taking the leave; or (b) after starting, but before finishing, the leave. (2) The employer must pay the employee's legal personal representative any amount payable for the employee's entitlement to long service leave that has not been already been paid. (3) If the employer does not do so, the employee's legal personal representative or an inspector may recover the amount as unpaid wages.!1 11 See section 399 (Recovery of unpaid wages etc.). Bo CON DA UBW LD Re Ree Se Le RwWN Nn RP Re ona 21 23 26 28 s55 68 s 58 Industrial Relations Continuity not broken by service in Reserve Forces 55.(1) An employee's service in the reserve forces is taken to be continuous service with the employer who employed the employee immediately before the employee starting service with the Forces. (2) In this section— "reserve forces" means the Australian Naval Reserve, Australian Army Reserve or Australian Air Force Reserve. Recognition of certain exemptions 56.(1) This part does not apply to an employer if— (a) the commission has exempted the employer, under the repealed Industrial Conciliation and Arbitration Act 1961, from the application of long service leave provisions in that Act or an award; and (b) the exemption is in force. (2) On application, the commission may revoke an exemption. Person may be "employer" and "employee" 57. If in performing duties in a calling a person is an employee, the person is entitled to long service leave as prescribed under this part despite the person being, by definition for this Act, an employer because of — (a) the person's engagement in the calling; or (b) the position the person holds in the calling. PART 4—REVIEW Review of general employment conditions 58.(1) On application by the Minister, an organisation or a State peak council, the full bench may review a condition under this chapter. ND NA BWN 1113 15 1821 25 s 59 69 s 61 Industrial Relations (2) The full bench must, before 30 June 2000, review an entitlement to long service leave under this chapter. (3) The full bench may, by a general ruling under section 287,!2 substitute the condition with another condition that is no less favourable. PART 5—EQUAL REMUNERATION FOR WORK OF EQUAL OR COMPARABLE VALUE Definition for pt 5 59. In this part— "equal remuneration for work of equal or comparable value" means equal remuneration for men and women employees for work of equal or comparable value. Orders requiring equal remuneration 60.(1) The commission may make any order it considers appropriate to ensure employees covered by the order receive equal remuneration for work of equal or comparable value. (2) An order may provide for an increase in remuneration rates, including minimum rates. Orders only on application 61. The commission may make an order under this part only on application by— (a) an employee to be covered by the order; or (b) an organisation whose rules entitle it to represent the industrial interests of employees to be covered by the order; or (c) a State peak council; or 12. Section 287 (General rulings) Bw Ne 11 1417 20 23 s 62 70 s 66 Industrial Relations (d) the Minister; or (e) the anti-discrimination commissioner. When commission must and may only make order 62. The commission must, and may only, make an order if it is satisfied the employees to be covered by the order do not receive equal remuneration for work of equal or comparable value. Immediate or progressive introduction of equal remuneration 63. The order may introduce equal remuneration for work of equal or comparable value— (a) immediately; or (b) progressively, in specified stages. Employer not to reduce remuneration 64.(1) An employer must not reduce an employee's remuneration because an application or order has been made under this part. (2) If an employer purports to do so, the reduction is of no effect. Part does not limit other rights 65.(1) This part does not limit any right a person or organisation may otherwise have to secure equal remuneration for work of equal or comparable value. (2) Subsection (1) is subject to section 66. Applications under this part 66.(1) An application can not be made under this part for an order to secure equal remuneration for work of equal or comparable value for an employee if proceedings for an alternative remedy— (a) to secure the remuneration for the employee; or DAunf w 11 14 1823 s 67 71 s 68 Industrial Relations (b) against unequal remuneration for work of equal or comparable value for the employee; have started under another provision of this Act or under another Act. (2) Subsection (1) does not prevent an application under this part if the proceedings for the alternative remedy have— (a) been discontinued by the party who started the proceedings; or (b) failed for want of jurisdiction. (3) If an application under this part has been made for an order to secure equal remuneration for work of equal or comparable value for an employee, a person is not entitled to start proceedings for an alternative remedy under a provision or Act mentioned in subsection (1)— (a) to secure the remuneration for the employee; or (b) against unequal remuneration for work of equal or comparable value for the employee. (4) Subsection (3) does not prevent proceedings being started for an alternative remedy if the proceedings under this part have— (a) been discontinued by the party who started the proceedings; or (b) failed for want of jurisdiction. PART 6—CONTINUITY OF SERVICE AND EMPLOYMENT Definition for pt 6 67. In this part— "service" includes employment. How part applies 68.(1) This part applies when working out an employee's rights and BW Ne Be ew Nb FP own A Dw eile' Rw eR num ioe ao Nn 20 2225 s 69 72 s 70 Industrial Relations entitlements under this chapter or chapter 313 by prescribing when the employee's continuity of service is not broken. (2) An employee is not entitled to claim the benefit of a right or entitlement more than once for the same period of service. Continuity of service—transfer of calling 69.11) A "transferred employee" is a person who becomes an employee of an employer (the "new employer") because of the transfer of a calling to the new employer from another employer (the "former employer"). (2) Even if a person is dismissed by the former employer before the transfer of a calling, the person is taken to be a transferred employee if— (a) the person is employed by the new employer after the transfer; and (b) the employee— (i) was dismissed by the former employer within 1 month immediately before the transfer; and (i) is re-employed by the new employer within 3 months after the dismissal. (3) The transfer of the calling is taken not to break the transferred employee's continuity of service. (4) A period of service with the former employer (including service before the commencement of this section) is taken to be a period of service with the new employer. (5) In this section— "dismissed" includes stood down. Continuity of service—apprentices or trainees 70.(1) This section applies if— (a) an employee, while employed with the employer, starts an 13° Chapter 3 (Dismissals) BW Ne 27 s71 73 s71 Industrial Relations apprenticeship or traineeship; or (b) the employer— (i) continues to employ an apprentice or trainee (the "employee") on the completion of the apprenticeship or traineeship; or (ii) re-employs the employee within 3 months after completion of the employee's apprenticeship or traineeship. (2) The period of the apprenticeship or traineeship does not break the employee's continuity of service. Continuity of service—generally 71.(1) Service with a partnership and an employer who was, or becomes, a member of the partnership is taken to be continuous service with the same employer. (2) An employee's continuity of service with an employer is not broken if the employee's service is temporarily lent or let on hire by the employer to another employer. (3) An employee's continuity of service with an employer is not broken by an absence, including through illness or injury— (a) on paid leave approved by the employer; or (b) on unpaid leave approved by the employer. (4) An employee's continuity of service with an employer is not broken if— (a) the employee's employment is terminated by the employer or employee because of illness or injury; and (b) the employer re-employs the employee; and (c) the employee has not been employed in a calling (whether on the employee's own account or as an employee) between the termination and the re-employment. (5) An employee's continuity of service with an employer is not broken if— (a) the employee's employment is terminated by the employer or Cm AD ARW N 121518 20 22 24 2730 s71 74 s71 Industrial Relations employee; and (b) the employer re-employs the employee within 3 months after the termination. !4 (6) An employee's continuity of service with an employer is not broken if— (a) the employee's employment is interrupted or terminated by the employer with intent to avoid an obligation under this part, an industrial instrument or employment contract; or (b) the employee's employment is interrupted or terminated by the employer as a direct or indirect result of an industrial dispute, and the employer re-employs the employee. (7) An employee's continuity of service is not broken if— (a) the employee's employment is interrupted or terminated by the employer because of slackness of trade or business; and (b) the employer re-employs the employee. (8) Service with a corporation and any of its subsidiaries is taken to be continuous service with the same employer. (9) However, a period for which the employee is away from work under subsections (3)(b) to (6) is not service under this part unless— (a) this Act or an industrial instrument provides otherwise; or (b) the commission directs otherwise. (10) In this section— "subsidiary" means a corporation that would be taken to be a subsidiary under the Corporations Law, whether or not the Corporations Law applies in a particular case. "terminate" includes stand-down. 14 Also see section 78(4)(a) (Remedies—reinstatement or re-employment) KR WN Be ew NR EF ow OID Ww eile' Rw Nn Ree na ee \o NY NY N Nu Fe Oo NN pp Mm BB wD N a s 72 75 s72 Industrial Relations CHAPTER 3—DISMISSALS PART 1—EXCLUSIONS Who this chapter does not apply to 72.(1) Part 215 does not apply to— (a) (b) (c) (d) (e) an employee during the first 3 months of employment with an employer (the "probationary period"), if the dismissal is for a reason other than an invalid reason, unless the employee and employer agree in writing that the employee serve— (i) ashorter probationary period; or (11) no probationary period; or an employee serving a longer probationary period, if— (i) the period decided before the employment started is a reasonable period having regard to the nature and circumstances of the employment; and (11) the dismissal is for a reason other than an invalid reason; or a short term casual employee; or an employee engaged for a specific period or task, unless the main purpose of engaging the employee in that way is, or was at the time of the employee's engagement, to avoid the employer's obligations under part 2; or an employee— (1) who is not employed under an industrial instrument; and (11) who is nota public service officer employed on tenure under the Public Service Act 1996; and (111) whose annual wages immediately before the dismissal are more than $68 000 or a greater amount stated, or worked out in a way prescribed under a regulation. Part 2 (Unfair dismissals) CMIDHA BPR WwW 11 1316 1820 22 24 26 s 72 76 s72 Industrial Relations (2) Part 316 does not apply to— (a) acasual employee; or (b) an employee engaged by the hour or day; or (c) an employee engaged for a specific period or task. (3) Sections 87, 88 and 8917 do not apply to an employee with less than 1 year of continuous service. (4) A regulation may exclude particular employees from the operation of particular provisions of this chapter. (5) Without limiting subsection (4), the regulation may identify as a class of employees those employees whose wages or salary immediately before dismissal was more than an amount, or an amount worked out in a way, prescribed under the regulation. (6) This chapter does not apply to— (a) an apprentice or trainee; or (b) an employee participating in a labour market program. (7) This chapter does not apply to a federal award employee, but instead the provisions of the Commonwealth Act relating to dismissals apply (as a law of the State) to the employee. (8) In this section— "federal award employee" means an employee— (a) any of whose employment conditions are governed by an award, certified agreement or AWA under the Commonwealth Act; but (b) who is not an employee mentioned in the Commonwealth Act, section 170CB(1)(a) to (d). "short term casual employee" means a casual employee, other than a casual employee who— (a) is engaged— 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; and (11) for several periods of employment during a period of at least 1 year; and (b) apart from the employer's decision not to offer the person further employment, had a reasonable expectation of further employment by the employer. PART 2—UNEFAIR DISMISSALS When is a dismissal unfair 73.(1) A dismissal is unfair if it is— (a) harsh, unjust or unreasonable; or (b) for an invalid reason. (2) Each of the following is an "invalid reason"— (a) temporary absence, within the meaning of a regulation, from work because of illness or injury (other than an injury within the meaning of part 518); (b) seeking office as, or acting or having acted in the capacity of, an employees' representative; (c) membership of an employee organisation or participation in the organisation's activities outside working hours or, with the employer's consent, during working hours; (d) non-membership of an employee organisation; (e) filing a complaint, or taking part in proceedings, against an employer involving alleged violation of laws or recourse to competent administrative authorities; (f) the making by anyone, or a belief that anyone has made or may 18 Part 5 (Protection of injured employees) AAW Bw Ne 1113 1518 2024 s 74 78 s 74 Industrial Relations make— (3) a public interest disclosure under the Whistleblowers Protection Act 1994; or (ii) acomplaint under the Health Rights Commission Act 1991; (g) refusing to negotiate for, make, sign, extend, amend or terminate a certified agreement or QWA; (h) refusing to negotiate for or make a certified agreement, or Australian workplace agreement, under the Commonwealth Act; (i) areason mentioned in section 34;19 (j) areason mentioned in section 394(2);20 (k) discrimination. Application for reinstatement 74.(1) An application for reinstatement must be made to the commission within— (a) 21 days after the dismissal takes effect; or (b) a further period the commission allows on an application made at any time. (2) An application may be made by— (a) an employee; or (b) with the employee's consent—an organisation whose rules entitle it to represent the employee's industrial interests. (3) The registrar may reject an application if the registrar considers the dismissed employee is a person to whom this chapter does not apply. (4) If the registrar rejects the application, the registrar must, by written notice, notify the applicant— (a) that the application has been rejected; and 19 Section 34 (Dismissal because of pregnancy or parental leave) 20 Section 394 (Contract not to stipulate mode of spending wages) o won Hn fF Wp 11 14 17 19 21 23 25 s 75 79 s 75 Industrial Relations (b) of the reasons why the registrar considers the dismissed employee is a person to whom this chapter does not apply. (5) The applicant may, by written notice given within 21 days after the registrar's notice is received, inform the registrar that the applicant wishes the application to proceed. (6) If the applicant does so, the commission must deal with the application, despite the registrar's rejection. (7) The commission and registrar must deal with an application as quickly as possible. Conciliation before application heard 75.(1) The commission must hold a conference to attempt to settle an application under section 74 by conciliation before it hears the application. (2) The commission may, by written notice, require the applicant, employee or employer to attend the conference at a stated time and place. (3) If the commission is satisfied all reasonable attempts to settle the matter by conciliation are, or are likely to be, unsuccessful so far as it relates to at least 1 ground of the application, it— (a) must issue a written certificate stating that it is so satisfied for a stated ground; and (b) inform the parties to the conciliation of — (i) the commission's assessment of the merits of the application in relation to the stated ground; and (11) the possible consequences of further proceeding on the application; and (c) may recommend the application be discontinued, whether or not it also recommends another way of resolving the matter. (4) The application lapses if the applicant has not, within 6 months after the applicant has been informed by the commission under subsection (3)— (a) taken any action in relation to the application; or (b) discontinued the application. (5) The parties may seek further conciliation, or settle the matter, at any Oo eo ND nn & WwW Ne 12 14 1619 22 24 26 28 30 s 76 80 s77 Industrial Relations time before an order is made under section 78, 79 or 80. (6) The president may delegate the functions of the commission under this section to the registrar or a deputy registrar. Arbitration when conciliation unsuccessful 76. If the commission considers all reasonable attempts to settle an application by conciliation have been made, but have been unsuccessful, the commission may hear and decide the application by— (a) making an order under section 78, 79 or 80; or (b) dismissing the application. Matters to be considered in deciding an application 77. In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider— (a) whether the employee was notified of the reason for dismissal; and (b) whether the dismissal related to— (i) the operational requirements of the employer's undertaking, establishment or service; or (11) the employee's conduct, capacity or performance; and (c) if the dismissal relates to the employee's conduct, capacity or performance— (i) whether the employee had been warned about the conduct, capacity or performance; or (11) whether the employee was given an opportunity to respond to the allegation about the conduct, capacity or performance; and (d) any other matters the commission considers relevant. w C0 OA NHRN fF 12 14 17 20 22 24 s 78 81 s 79 Industrial Relations Remedies—reinstatement or re-employment 78.(1) This section applies if the commission is satisfied an employee was unfairly dismissed. (2) The commission may order the employer to reinstate the employee to the employee's former position on conditions at least as favourable as the conditions on which the employee was employed immediately before dismissal. (3) If the commission considers reinstatement would be impracticable, the commission may order the employer to re-employ the employee in another position that the employer has available and that the commission considers suitable. (4) The commission may also— (a) make an order it considers necessary to maintain the continuity of the employee's employment or service; and (c) order the employee to repay any amount paid to the employee by, or for, the employer on the dismissal; and (b) order the employer to pay the employee the remuneration lost, or likely to have been lost, by the employee because of the dismissal, after taking into account any employment benefits or wages received by the employee since the dismissal. (5) This section does not limit the commission's power to make an interim or interlocutory order. Remedies—compensation 79.1) If, and only if, the commission considers reinstatement or re-employment would be impracticable, the commission may order the employer to pay the employee an amount of compensation decided by the commission. (2) The commission must not award an amount of compensation that is more than— (a) if the employee was employed under an _ industrial instrument—the wages the employer would have been liable to pay the employee for the 6 months immediately after the FOOD ADDN FSF WH Se See N eile' Rw FR loon Nee SOMA NN Ne 2629 31 s 80 82 s 81 Industrial Relations dismissal, paid at the rate the employee received immediately before the dismissal; or (b) if the employee was not employed under an _ industrial instrument—the lesser of the wages under paragraph (a) and an amount equal to half the amount prescribed under section 72(1)(e)(iii). (3) The commission must take into account any amount paid to the employee by the employer on the dismissal. (4) This section does not limit the commission's power to make an interim or interlocutory order. Sanctions for unfair dismissal—invalid reason 80.(1) If satisfied an employer has dismissed an employee for an invalid reason, the commission may order the employer to pay the employee an amount of not more than the monetary value of 135 penalty units. (2) The commission may make the order in addition to an order for reinstatement, re-employment or compensation. Further orders if employer fails to reinstate 81.(1) If an employer wilfully contravenes an order to reinstate or re-employ an employee, the commission may— (a) further order the employer to pay the employee— (i) an amount of not more than the monetary value of 50 penalty units; and (11) an amount for lost wages; and (b) make further orders until the employer complies with an order under section 78 or this section. (2) This section does not affect another provision of this Act allowing proceedings to be taken against the employer. SO ONIN DAWNRW NYE 1316 19 22 25 27 s 82 83 s 83 Industrial Relations Effect of order on leave 82. If the commission makes an order under section 78, the interruption to the employee's continuity of employment or service caused by the dismissal must be disregarded when working out the employee's entitlement— (a) to annual, sick, family or long service leave; or (b) under this chapter. PART 3—REQUIREMENTS FOR DISMISSAL What employer must do to dismiss employee 83.(1) An employer may dismiss an employee only if— (a) the employee has been— (i) given the period of notice required by section 84; or (ii) paid the compensation required by section 85; or (b) the employee engages in misconduct of a type that would make it unreasonable to require the employer to continue the employment during the notice period. (2) Misconduct under subsection (1)(b) includes— (a) theft; and (b) assault; and (c) fraud; and (d) other misconduct prescribed under a regulation. (3) However, subsection (1)(b) does not apply if the employee can show that, in the circumstances, the conduct was not conduct that made it unreasonable to continue the employment during the notice period. (4) If an employer dismisses an employee, to whom subsection (1)(a) applies, without giving the required notice or paying the required compensation— YN DA NAPwWN 1113 1518202326 s 84 84 s 84 Industrial Relations (a) onan application under section 742!1—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 Minimum period of notice required 18 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 | 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 | 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 working out continuous service under subsection (1). Minimum amount of compensation required 85.(1) The minimum compensation payable to an employee is at least equal to the total of the amounts the employer would have been liable to pay the employee if the employee's employment had continued until the end of the required notice period. (2) The total must be worked out on the basis of — (a) the ordinary working hours worked by the employee; and (b) the amounts payable to the employee for the hours, including, for example, allowances, loadings and penalties; and (c) any other amounts payable under the employee's employment contract. (3) A regulation may prescribe the amount that is taken to be payable, or how to work out the amount, under an employment contract mentioned in subsection (2)(c), to an employee whose wages before dismissal were decided wholly or partly on the basis of commission or piece rates. PART 4—DISMISSAL OF 15 OR MORE EMPLOYEES When this part applies 86. This part applies if an employer decides to dismiss 15 or more employees for an economic, technological or structural reason. Orders about severance allowances and other separation benefits 87.(1) The commission may make an order about severance allowance or other separation benefits on application by— (a) an employee; or (b) an organisation whose rules entitle it to represent the employee's _ _ ORD =~ Oo © &©IDWA Ww Ne RP Ree NANA 21 24 26 s 88 86 s 88 Industrial Relations industrial interests. (2) An employer must not contravene the order. (3) If an employer contravenes the order, the commission may— (a) make any of the orders it may make under section 78(2), (3) or (4);22 or (b) order the employer to pay the employee an amount of not more than the monetary value of 135 penalty units. (4) In this section— "severance allowance or other separation benefits" means severance allowance or other separation benefits under article 12 of the Termination of Employment Convention 1982. Employer must give notice of proposed dismissals 88.(1) The employer may dismiss the employees only if the employer, as soon as practicable after making the decision, notifies— (a) the Commonwealth department or agency whose primary function is helping unemployed people find work; and (b) each employee organisation of which any of the employees is a member. (2) The notice must state— (a) the number and categories of employees being dismissed; and (b) the reasons for the dismissals; and (c) the time when, or the period over which, the employer intends to carry out the dismissals. (3) If satisfied an employer has dismissed, or proposes to dismiss, an employee without giving the notice, the commission may make any or all of the following orders— (a) any of the orders it may make under section 78(2), (3) or (4); (b) an order that the employer pay each employee an amount of not 22 Section 78 (Remedies—reinstatement or re-employment) N BE owU © ANID AR Ww 14 16 18 2023 26 28 s 89 87 s 89 Industrial Relations more than the monetary value of 135 penalty units; (c) an order declaring the dismissal ineffective until the employer has given the notice. (4) An application for an order may be made by— (a) an employee, including a dismissed employee; or (b) an organisation whose rules entitle it to represent the employee's industrial interests; or (c) an inspector. (5) The commission may order that a penalty, or part of a penalty, be paid to any person who may have made the application (other than an officer or employee of the State or a public service officer). (6) Any part of the penalty ordered to be paid to the person must first be paid to the person. (7) The remainder of the penalty must then be paid to the consolidated fund. (8) A failure to give a notice is not an offence. Employer must consult with employee organisations about dismissals 89.(1) The employer must give each employee organisation of which any of the employees is a member an opportunity to consult with the employer on ways to— (a) avoid or minimise the dismissals; and (b) minimise the adverse effects of the dismissals, for example, by finding alternative employment. (2) The employer must do so as soon as practicable after making the decision to dismiss employees, but in any case before dismissing any of the employees. (3) If the employer does not give the organisation an opportunity to consult as required, the commission may make the orders it considers appropriate to put employees, and their organisations, in the same position, as nearly as can be done, as if the employer had done so. (4) The commission may make an order on application from an ee ee WN K-§ oOo © AID WN BB WH = Ree ns e a 1923 26 2830 s 90 88 s 92 Industrial Relations employee or organisation that is to be affected by the order. (5) Subsections (1) and (2) do not apply to an organisation if the employer could not reasonably be expected to have known, at the time of the decision, that the organisation's rules entitled it to represent the industrial interests of the dismissed employees. Time within which application under this part must be made 90. An application for an order under this part must be made— (a) before, or within 21 days after, the dismissal takes effect; or (b) within a further period the commission allows on an application made at any time. PART 5—PROTECTION OF INJURED EMPLOYEES Definitions for pt 5 91. In this part— "dismiss" an injured employee includes a situation where— (a) an unreasonable employment condition that is designed to make the employee leave employment is imposed on the employee; and (b) the employee leaves the employment. "injured employee" means an employee who receives an injury. "injury" means an injury within the meaning of the WorkCover Queensland Act 1996 for which compensation is payable under that Act. Wages to be paid for the day employee injured 92.(1) An injured employee is entitled to be paid full wages for the day when the injury happens. (2) Subsection (1) applies despite an industrial instrument or nAnkwWN SoD OX a 1316 18 2024 s 93 89 894 Industrial Relations employment contract. (3) An injured employee's entitlement under subsection (1), or an entitlement to be paid in relation to an injury under the Workcover Queensland Act 1996, is in addition to the employee's entitlement to sick leave under chapter 2, part 1, division 2.23 Dismissal of injured employees only after 6 months 93.(1) Within 6 months after an employee becomes injured, the employer must not dismiss the employee solely or mainly because the employee is not fit for employment in a position because of the injury. Maximum penalty—40 penalty units. (2) This section applies to a dismissal after the commencement of this section even if the employee became unfit before the commencement. Replacement for injured employee 94.11) This section applies if the employer wants to employ a replacement employee while an injured employee is not fit for employment in a position because of the injury. (2) The employer must, before a replacement employee starts employment, give the replacement employee a written notice informing the replacement employee of— (a) the temporary nature of the employment; and (b) the injured employee's right to return to work. (3) In this section— "replacement employee" means— (a) a person who is specifically employed because an injured employee is not fit for employment in a position because of the injury; or (b) a person replacing an employee who is temporarily promoted or transferred to replace the injured employee. 23 Chapter 2, part 1, division 2 (Sick leave) nAnR WN Corn a 15182123 26 28 s 95 90 s 96 Industrial Relations Reinstatement of injured employees 95.(1) This section applies if an injured employee is dismissed because the employee is not fit for employment in a position because of the injury. (2) The employee may apply to the employer, within 12 months after the injury, for reinstatement to the employee's former position. (3) The employee must give the employer a doctor's certificate that certifies the employee is fit for employment in the former position. (4) If the employer fails to immediately reinstate the employee, the following persons may apply to the commission for a reinstatement order— (a) the employee; (b) an employee organisation of which the employee is a member, with the employee's consent. (5) The commission may order the employer to reinstate the employee if satisfied the employee is fit for employment in the former position. (6) The order may specify terms of reinstatement, including for example, the day the reinstatement is to take effect. (7) This section applies to a dismissal after the commencement of this section even if the employee became unfit before the commencement. (8) In this section— "former position" of an injured employee means, at the employee's option— (a) the position from which the injured employee was dismissed; or (b) if the employee was transferred to a less advantageous position before dismissal—the position held by the employee when the employee became unfit for employment. Preservation of employee's rights 96.(1) This part does not affect another right of a dismissed employee under an Act or law. (2) This part can not be affected by a contract or agreement. Oo eo ND ns Wn e Oo aon Nw eile' Rw eR num ile' on e \o Nw a) N N NNN n BW 28 s97 91 s 98 Industrial Relations PART 6—STAND-DOWN OF EMPLOYEES Employee stood-down in December then re-employed in January 97.(1) This section applies to an employee, other than a casual employee within the meaning of the relevant industrial instrument, who— (a) is stood down by an employer during December; and (b) is re-employed by the employer before the end of the next January; and (c) was employed by the employer for a continuous period of at least 2 weeks immediately before being stood-down. (2) The employer must pay the employee at the ordinary rate payable to the employee immediately before the stand-down for the Christmas Day, Boxing Day, and New Year's Day public holidays between the stand-down and the re-employment. (3) In this section— "stand-down" includes dismissal. Permissible stand-down of employee 98.(1) An employer may stand-down an employee on a day, or for part of a day, when the employee can not be usefully employed because of something that happened— (a) for which the employer is not responsible; or (b) over which the employer has no control. (2) The employer may stand-down the employee without pay, unless an industrial instrument provides otherwise. (3) This section does not apply to an apprentice or trainee. Oe AD NA BPW 1215 1821 23 s 99 92 s101 Industrial Relations PART 7—GENERAL Chapter does not limit other rights 99. This chapter does not limit a right a person or organisation may otherwise have to— (a) appeal against a dismissal; or (b) have an industrial instrument or order about a dismissal made. Inconsistent instruments and orders 100. An industrial instrument or order that is inconsistent with an order under this chapter does not apply to the extent the inconsistency detrimentally affects the rights of employees concerned. CHAPTER 4—FREEDOM OF ASSOCIATION PART 1—PRELIMINARY Main purposes of ch 4 101. The main purposes of this chapter are to ensure— (a) a person who is eligible to become a member of an industrial association may become or remain a member of the association without fear of discrimination;24 and (b) aperson who does not wish to become or remain a member of an industrial association may refrain from doing so without fear of discrimination. 24 For eligibility for membership, see section 531 (Eligibility). DH nA Pw Bw 14 1619 s 102 93 s 102 Industrial Relations Definitions for ch 4 102. In this chapter— "conduct" includes an omission. "conscientious beliefs" means an individual's beliefs based on the individual's moral values or fundamental religious beliefs, other than a belief founded wholly or principally on objections to the policies of an organisation or organisations generally. "exempted person" means a person who holds an exemption certificate. "exemption certificate" means an exemption certificate under section 115(1) that has not expired. "industrial association" means any of the following— (a) an organisation; (b) an association of independent contractors, however called, that is registered or recognised as an association under an industrial law; (c) an association of employees having as a principal purpose the protection and promotion of their interests in matters concerning their employment; (d) an association of independent contractors having as a principal purpose the protection and promotion of their interests as independent contractors; (e) an association of employers having as a principal purpose the protection and promotion of their interests in matters concerning employment or independent contractors; (f) a branch of an industrial association under paragraphs (a) to (e). "industrial body" means— (a) the commission; or (b) the court or another court or commission, however called, exercising industrial law functions and powers corresponding to the commission's functions and powers. "industrial instrument" includes an award or agreement made under the Commonwealth Act or a law of another State. "industrial law" means this Act or another Act regulating the relationships CO Mm NDUN FSF W NY Se Se Ne eile' Rw Bee IAG Nee SOM NNN WNe NY NY WN Hn nn NNN 'oon WwW WwW re Oo Ww N s 103 94 s 104 Industrial Relations between employers and employees. "management committee" of an industrial association means the body of persons, however called, that manages its affairs. "prohibited conduct" means conduct prohibited under part 2. "representative" of an industrial association means— (a) a delegate of the association; or (b) an employee of the association; or (c) an officer or agent of the association acting in that capacity. Meaning of "industrial action" for ch 4 103. In this chapter, "industrial action" includes conduct by a person— (a) engaged as an independent contractor that would be a strike if the conduct had been engaged in by an employee; and (b) who has engaged an independent contractor that would be a lockout if the conduct had been engaged in by an employer. (2) A reference in this chapter to "industrial action" includes a reference to a course of conduct that makes up a series of industrial actions. Meaning of "engaging in" conduct for a "prohibited reason" for ch 4 104.(1) For this chapter, a person engages in conduct for a "prohibited reason" if the person engages in, or threatens to engage in, the conduct because another person— (a) is, has been, proposes to cease being or become, or has proposed to cease being or become a member or representative of an industrial association; or (b) is not, or does not propose to become, a member or representative of an industrial association; or (c) has not paid, or does not propose to pay, a fee, however called, to an industrial association; or (d) is, has been, proposes to cease being or become, or has proposed to cease being or become an exempted person; or oN DW BB WD 12 14 16 192225 27 29 s 104 95 s 104 Industrial Relations (e) (f) (g) (h) (i) 0) (k) (I) (m) (n) (0) has not or does not propose to join in industrial action; or has not agreed or consented to, or voted for, the making of an agreement to which an industrial association of which the person is a member, would be a party; or has participated in, proposes to participate in or has proposed to participate in, a secret ballot ordered by an industrial body under an industrial law; or has the right to the benefit of an industrial instrument or an order of an industrial body; or has made or proposes to make an inquiry or complaint to a person or body having the capacity under an industrial law to seek— (i) compliance with that law; or (11) the observance of a person's rights under an industrial instrument; or has given evidence or taken part in ("participate") or proposes to participate in, or has proposed to participate in proceedings under an industrial law; or is a member of an industrial association that is seeking better industrial conditions; or is dissatisfied with the person's industrial conditions; or has absented himself or herself from work as an employee or independent contractor without leave and— (i) the absence was to carry out a duty or exercise a right as an officer of an industrial association; and (11) the person applied for leave before absenting himself or herself and leave was unreasonably refused or withheld; or as an officer or member of an industrial association has done, or proposes to do, an act or thing that is lawful and authorised by the association's rules to further or protect the industrial interests of the association or its members; or is a health and safety representative appointed under the Workplace Health and Safety Act 1995. s 105 96 s 105 Industrial Relations (2) A person "engages in" conduct for a prohibited reason if the conduct is engaged in for a reason that includes a prohibited reason. (3) In this section, a reference to a person engaging in conduct includes a reference to the person being, directly or indirectly, a party to or concerned in the conduct. PART 2—PROHIBITED CONDUCT Prohibited conduct for employers and principals 105.(1) This section applies to a person who is, or proposes to become, an employer or who has engaged, or proposes to engage, someone else as an employee or independent contractor. (2) The person must not, for a prohibited reason, engage in the following conduct— (a) refuse to engage a person as an employee or independent contractor; (b) terminate a person's contract of employment or contract for services; (c) disadvantage or injure a person who is, or proposes to become, an employee or independent contractor; (d) discriminate against a person in the conditions on which the person is offered a contract of employment or contract for services; (e) innegotiating an agreement under chapter 6, part 1,25 discriminate between the persons's employees because— (i) some of the employees are members of an employee organisation, while others are not members of the organisation; or (11) some of the employees are members of a particular 25 Chapter 6 (Agreements), part 1 (Certified agreements) A pW NR 12 14 16 18 2023 26 s 106 97 s 108 Industrial Relations employee organisation, while others are not members of the organisation, or are members of a different employee organisation. Prohibited conduct for employees and independent contractors 106.(1) This section applies to a person who is, or proposes to become, an employee or who is, or proposes to become, an independent contractor. (2) The person must not, for a prohibited reason, take industrial action against the person who engaged, or proposes to engage, the person as an employee or an independent contractor. Prohibited conduct for industrial associations 107. An industrial association must not, for a prohibited reason, engage in the following conduct— (a) organise or take, or threaten to organise or take, industrial action; (b) advise, encourage or incite a person to engage in prohibited conduct or conduct that would be prohibited conduct if the person were an employer or a person who engaged an independent contractor; (c) take or threaten to take action that disadvantages a person in the person's employment, prospective employment, contract for services or prospective contract for services; (d) disadvantage, or impose or threaten to impose a penalty or disability, on a member of the association or a person who is eligible to become a member of the association. Certain actions by representative not prohibited conduct 108. An industrial association does not engage in prohibited conduct under another provision of this part if— (a) the conduct was engaged in by its representative, during or in connection with industrial action; and (b) the representative acted without the knowledge of the wn CMI AN Bp 12 1517 192226 28 s 109 98 s112 Industrial Relations association's management committee; and (c) the management committee could not, by the exercise of reasonable diligence, have prevented the conduct. Provision requiring or permitting prohibited conduct 109. An industrial instrument or an arrangement is void to the extent it requires or permits prohibited conduct. Encouragement provisions permitted 110.(1) A provision (an "encouragement provision") of an industrial instrument may encourage a person to join or maintain membership of an industrial association. (2) The following is not prohibited conduct— (a) making or acting under an encouragement provision; (b) encouraging a person to join or maintain membership of an industrial association. (3) In this section— "encourage" does not include coerce. PART 3—EXEMPTION FROM MEMBERSHIP Who may apply for exemption 111. A person may apply to a magistrate or the registrar for an exemption from membership of an organisation only because of the person's conscientious beliefs. Procedure for hearing 112. Before deciding the application, the magistrate or registrar must follow the procedure prescribed under a regulation for the hearing. \o 12 14 16 2024 s 113 99 s 115 Industrial Relations Deciding application 113.(1) The magistrate or registrar may grant the application only if satisfied the applicant— (a) genuinely holds conscientious beliefs; and (b) has paid the same amount as the membership subscription of the organisation to the registrar of a Magistrates Court or the registry. (2) If the magistrate or registrar decides to refuse to grant the application, the registrar must promptly give the applicant a notice stating the following— (a) the decision; (b) the reasons for the decision; (c) that the applicant may appeal against the decision to the full bench within 21 days; (d) how to start an appeal.26 How payment must be applied 114. The amount paid to the registrar of the Magistrates Court or the registry must be paid to the consolidated fund. Exemption certificate 115.(1) If the application is granted, the magistrate or registrar must give the applicant a certificate (an "exemption certificate"). (2) The exemption certificate must— (a) bein the approved form; and (b) state— 26 See sections 342 (Appeal from commission, magistrate or registrar) and 346 (Time limited for appeal) oon nun fF WN eS eK Oo lon' wn os 17 20 22 s 116 100 s 118 Industrial Relations (i) that the applicant is exempt from membership of the organisation because the applicant's conscientious beliefs; and (11) the day the exemption takes effect. Expiry of exemption certificate 116. An exemption certificate expires 1 year after the day the exemption stated in the certificate took effect. PART 4—CIVIL REMEDIES Who may apply 117. The following may apply to the commission for an order under this part— (a) an entity against whom prohibited conduct has been carried out or is proposed to be carried out; (b) an industrial association of which an entity mentioned in paragraph (a) is a member or is eligible to become a member of; (c) another entity prescribed under a regulation. Conciliation required before hearing 118. Before the commission hears the application, it must direct the parties to the proceedings to hold a conference before it— (a) to try to resolve, by conciliation, the issues relevant to the proceedings; and (b) to ensure the parties are fully informed of the orders that may be made at the hearing. BR WPF Nn 11 13 15 19 21 23 s119 101 s 120 Industrial Relations Right to be heard 119.(1) The commission must, before making an order under this part against an entity, give the entity an opportunity to be heard. (2) This section does not apply to the making of an interim order or interim injunction. Remedies 120.(1) If, after hearing the application, the commission is satisfied an entity has engaged in, or proposes to engage in, prohibited conduct it may order the entity— (a) to pay a penalty of not more than the monetary value of— (i) fora corporation, 135 penalty units; or (ii) otherwise, 27 penalty units; or (b) to reinstate an employee in— (i) the position from which the employee was removed or dismissed because of the prohibited conduct or proposed prohibited conduct on which the ground was based; or (11) a similar position; or (c) to re-engage an independent contractor; or (d) to pay appropriate compensation to an entity disadvantaged by the conduct or proposed conduct; or (e) not to carry out a threat made by the entity or make any further threat. (2) If the commission orders the reinstatement of an employee, the reinstatement must be on conditions at least as favourable as the conditions on which the employee was employed immediately before the employee's removal or dismissal. (3) The commission may also— (a) grant an interim or other injunction or make any other order it considers appropriate to stop the conduct or proposed conduct or to remedy its effects; or Ak WH oon lon 1113 1518 20 22 24 26 29 $121 102 s 122 Industrial Relations (b) make any other order that is consequential to an order under this section. (4) The commission may make more than | order under this section against the same entity. Payment of penalty 121.(1) If the commission orders an entity to pay a penalty, it may also order that the penalty, or a part of the penalty, be paid to another entity. (2) Any part of the penalty that is ordered to be paid to the other entity must first be paid to the other entity. (3) The remainder of the penalty must be paid to the consolidated fund. Evidence of prohibited conduct 122.(1) This section applies if conduct was engaged in by any of the following— (a) an industrial association's management committee; (b) an officer or agent of an industrial association acting in that capacity; (c) a member or group of members of an industrial association authorised by— (i) _ the rules of the association; or (11) its management committee; or (11) an officer or agent of the association acting in that capacity; (d) amember of an industrial association, who performs the function of dealing with an employer or principal on behalf of the member and other members of the association, acting in that capacity; (e) a director or other officer or an employee or agent of a corporation, acting in that capacity. (2) Evidence that the conduct was engaged in by an entity mentioned in subsection (1) is evidence the conduct was engaged in by the industrial association or corporation. BW Ne Com ND w 13 16 18 202326 28 s 123 103 s 124 Industrial Relations (3) Evidence that the entity engaged in the conduct for a prohibited reason is evidence the conduct was engaged in by the industrial association or corporation for the prohibited reason. CHAPTER 5—AWARDS PART 1—FORM AND APPLICATION Form, effect and term of award 123.(1) An award— (a) must be in a form decided by the commission; and (b) takes effect and has the force of law throughout the State and without limit of time, except as otherwise prescribed by subsection (2). (2) An award may state it is in force— (a) inastated locality; or (b) for a stated period; or (c) imrelation to a stated employer; or (d) in relation to a stated establishment or operation of a stated employer. (3) An award stated to be limited in a way mentioned in subsection (2) has effect only to the extent that it provides. Persons bound by award 124.(1) An award binds— (a) subject to paragraphs (d) to (f)—all employers who are engaged in the calling to which the award applies; and (b) subject to paragraphs (d) to (f)—all employees who are engaged in the calling to which the award applies; and rFowo fe NN lon ee 1417 19 21 23 25 s 125 104 s 125 Industrial Relations (c) all organisations concerned with the calling to which the award applies; and (d) if the award applies only in a stated locality—all employers and employees in the locality who are engaged in the calling to which the award applies; and (e) ifthe award applies only to a stated employer— (i) the employer and any successor of the employer; and (11) all employees of the employer and any successor; and (f) if the award applies only to a stated establishment or operation of a stated employer— (i) the employer and any successor of the employer; and (11) all employees of the employer in the establishment or operation. (2) This section applies subject to section 653 and to all exemptions ordered by the commission under section 132 or 234.27 PART 2—COMMISSION'S POWERS Making, amending and repealing awards 125.(1) The commission may make, amend or repeal an award to provide, among other things, fair and just employment conditions. (2) The commission may act under subsection (1)— (a) of its own initiative; or (b) on application by— (i) the Minister; or (11) an organisation; or 27 Section 653 (Effect on certain instruments) Section 132 (Exemptions) Section 234 (Remedies on show cause) CoO Om ND UWNBW NY eS an ion' wn ee nat 19 2123 s 126 105 s 126 Industrial Relations (111) an employer; or (iv) a person who satisfies the commission that the person is not an officer of, or acting for, an eligible association. (3) The commission may make an award that— (a) (b) (c) (d) revokes or amends a decision; or declares void or amends labour contracts made before or after the commencement of this Act, subject to the conditions and exemptions the commission considers appropriate; or gives the retrospective effect the commission considers appropriate, or that is consented to by the parties, to the whole or part of an award, but so that, except with the parties' consent, the retrospective effect is not made to operate before the day when the commission first took cognisance of the matter; or directs a copy of an award be exhibited by the employer in a conspicuous and convenient place on the premises of an employer bound by the award. Content of awards 126. The commission must ensure an award— (a) (b) (c) (d) (e) (f) (g) does not contain discriminatory provisions; and is stated in plain English and is easy to understand in structure and content; and does not contain provisions that are obsolete or need updating; and provides for secure, relevant and consistent wages and employment conditions; and provides fair standards for employees in the context of living standards generally prevailing in the community; and is suited to the efficient performance of work according to the needs of particular enterprises, industries or workplaces; and takes account of the efficiency and effectiveness of the economy, including productivity, inflation and the desirability of achieving a 1821 23 25 27 29 31 $127 106 s 128 Industrial Relations high level of employment; and (h) whenever possible— (i) contains facilitative provisions that allow agreement at the workplace or enterprise level, between employers and employees (including individual employees), on how the award provisions are to apply; and (11) contains provisions enabling the employment of regular part-time employees; and (111) provides support for training arrangements. Dispute resolution procedures in each award 127.(1) The commission must ensure an award contains a dispute resolution procedure. (2) The form of the procedure is to be agreed on by the parties to the award. (3) However, if the parties can not agree, the commission must insert an appropriate procedure in the award. (4) Without limiting subsection (1), the procedure must include— (a) procedures for consultation at the workplace; and (b) procedures for the involvement of relevant organisations; and (c) any other procedure prescribed under a regulation. Awards that fix wage rates 128.(1) In fixing wage rates payable to employees in a calling, the commission must fix the rates on the basis that a man and a woman employed by the same employer must receive equal remuneration for work of equal or comparable value without discrimination on the ground of sex. (2) Despite any other provision of this Act, wage rates fixed by the commission for persons under 21 years may be fixed on a progressive scale based on the wage rates payable to employees 21 years or over in the same calling. Oo on HNwn pW N 12 14 16 1820 2325 2729 s 129 107 s 131 Industrial Relations (3) In making an award that fixes the wage rates, the commission must consider the age and experience of the persons under 21 years. Flow-on of certified agreements 129. The commission may include in an award provisions that are based on a certified agreement only if satisfied the provisions— (a) are consistent with principles established by the full bench that apply for deciding wages and employment conditions; and (b) are not contrary to the public interest. Review of awards 130.(1) The commission may review an award— (a) of its own initiative; or (b) on the application of a party to the award. (2) Without limiting subsection (1), a party may apply to the commission to amend a provision of an award about wages or employment conditions. (3) The commission must review an award within 3 years after— (a) it was made; or (b) if it was made before the commencement of this section—the commencement; or (c) it was last reviewed under this section. (4) In reviewing an award, the commission must do what is required by sections 126, 127 and 128. Review of industrial instruments referred by the Anti-Discrimination Commission 131.(1) The commission must review an industrial instrument referred to it by the Anti-Discrimination Commission on the grounds that it is discriminatory. (2) The anti-discrimination commissioner is a party to the proceedings. Ne oC ND nH WwW 1114 16 18 21 23 26 s 132 108 s 134 Industrial Relations PART 3—EXEMPTIONS Exemptions 132.(1) The commission may, of its own initiative or on application by an organisation or employer, by the order by which it makes an award, or by its later order, exempt from the application of the award— (a) an employer or class of employer, or employee or class of employee, in a locality or in the calling to which the award applies; and (b) a person who is engaged, whether as employer or employee, in the locality or calling, while the award remains in force. (2) The commission may give the exemption only if satisfied the exemption— (a) isin the best interests of the employees and employers concerned; and (b) is not contrary to the public interest. (3) While an exemption exists, the award does not bind the employer, employee, class, or person, according to the exemption. PART 4—GENERAL Enforceability of awards 133. Action can not be commenced to enforce an award until 21 days after the date it is published in the industrial gazette. Effect of appeals on awards 134. The commission must immediately amend an award to give effect to— (a) adecision of the Court of Appeal, court or full bench affecting the award on appeal from a decision of the commission; or 21 24 26 s 135 109 s 136 Industrial Relations (b) a decision of the court affecting the award on a case stated by the commission. Inconsistency between awards and contracts 135.(1) To the extent of any inconsistency, an award prevails over a contract of service that is— (a) in force when the award becomes enforceable; or (b) made while the award continues in force. (2) The contract is to be interpreted, and takes effect, as if it were amended to the extent necessary to make the area of inconsistency conform to the award. (3) However, no inconsistency arises only because the contract provides for employment conditions more favourable to the employee than the award. PART 5—WAGES AND EMPLOYMENT CONDITIONS FOR APPRENTICES AND TRAINEES Apprentice's and trainee's employment conditions 136.(1) An apprentice or trainee is entitled to the same employment conditions as those fixed by the industrial instrument applicable to employees in the workplace where the apprentice or trainee is employed. (2) If an industrial instrument provides for a tradesperson in a calling to be paid an allowance in addition to wages, an apprentice in the calling is entitled to be paid— (a) if, under the instrument, the allowance is taken to be part of the tradesperson's wages—the percentage of the allowance that the apprentice's wages bear to the tradesperson's wages; or (b) if, under the instrument, the allowance is not taken to be part of the tradesperson's wages—the full allowance. Ne oN DA nk wo 1215 18212427 s 137 110 s 137 Industrial Relations (3) If an industrial instrument provides for a tradesperson in a calling to be paid an allowance that is assessed as a percentage of the tradesperson's wages, an apprentice in the calling is entitled to be paid the percentage of the allowance that the apprentice's wages bear to the tradesperson's wages. (4) Subsection (3) applies whether or not, under the instrument, the allowance is taken to be part of the tradesperson's wages. (5) In this section— "industrial instrument" includes an award or agreement under the Workplace Relations Act 1996 (Cwlth). Order setting minimum wages and conditions 137.(1) The commission may make an order fixing minimum wages and employment conditions for the following employees, whether or not they are employed under an industrial instrument— (a) apprentices or trainees; or (b) different classes of apprentices or trainees. (2) In making an order, the commission may consider any matter it considers relevant, including— (a) the age, competency, or method of progression through training of the apprentices or trainees; and (b) an industrial instrument. (3) Despite section 136, if there is an inconsistency between an order and an industrial instrument, the order prevails to the extent of the inconsistency. (4) The commission may make an order— (a) of its own initiative; or (b) on application by— (i) the State Training Council; or (11) an organisation; or (11) a State peak council; or (iv) the Minister; or ono AI NWN BRwWNe 1215 17 19 22 242628 s 138 111 s 138 Industrial Relations (v) another entity with an interest in apprentices or trainees. (5) In this section— "industrial instrument" includes an award or agreement under the Commonwealth Act. Order setting tool allowance 138.(1) The commission may make an order requiring an apprentice's employer to provide the apprentice with— (a) tools relevant to the calling the apprentice is engaged in; or (b) an amount to enable the apprentice to buy the tools (a "tool allowance"). (2) The order may state— (a) the particular tools to be provided and the circumstances in which they are to be provided; or (b) the circumstances in which a tool allowance must be provided. (3) The commission may make an order— (a) of its own initiative; or (b) on application by— (i) the State Training Council; or (11) an organisation; or (11) a State peak council; or (iv) the Minister; or (v) another entity with an interest in apprentices. (4) An employer must not contravene an order. Maximum penalty—40 penalty units. (5) If a magistrate finds an employer guilty of an offence against subsection (4), the magistrate must, in addition to a penalty the magistrate may impose, order the employer to— (a) provide the apprentice with the tools required to be provided under the commission's order; or s 139 112 s 140 Industrial Relations (b) pay to the Magistrates Court the amount— (1) stated in the commission's order; or (11) equivalent to the cost of the tools required to be provided under the commission's order. (6) The magistrate may express the order in the alternative so the employer may decide how to comply with it. (7) The court must pay an amount paid under subsection (5)(b) to the apprentice. Termination of employment before apprenticeship or traineeship cancelled or completed 139.(1) This section applies despite any other provision of this Act if an employer is training— (a) an apprentice under an apprenticeship; or (b) a trainee under a traineeship. (2) The apprentice's or trainee's employment with the employer can not be terminated unless the apprenticeship or traineeship is completed or is cancelled under the Vocational Education, Training and Employment Act 1991, part 3.28 Maximum penalty—40 penalty units. PART 6—LABOUR MARKET PROGRAMS Orders for wages and employment conditions 140.11) The commission may make an order fixing wages and employment conditions for employees who participate in a labour market program. 28 Vocational Education, Training and Employment Act 1991, part 3 (Training administration) aon nm Bw NY 12 14 1618 23 s 140 113 s 140 Industrial Relations (2) In making an order, the commission may consider any matter it considers relevant, including— (a) the objectives of the program; and (b) any attribute of the participants that affects their ability to get employment, including, for example— (i) the age and competency of the participants; and (11) any disability or incapacity of the participants; and (c) the kind of work done in the program; and (d) the experience to be gained by the participants; and (e) any relevant industrial instrument; and (f) any remuneration or benefit the participants are receiving from the Commonwealth or the State. (3) The commission may make an order— (a) of its own initiative; or (b) on application by— (i) the State Training Council; or (11) the Minister. (4) In this section— "labour market program" means a labour market program approved by the Minister. Cm NI DA WR WwW NE 13151720 s141 114 s141 Industrial Relations CHAPTER 6—AGREEMENTS PART 1—CERTIFIED AGREEMENTS Division 1—Making agreements Certified agreements 141.(1) A certified agreement may be made about the relationship between an employer and a group of employees (whether all employees, or a category of employees) of the employer. (2) The certified agreement covers all employees in the group, even if they were employed after the agreement was made. (3) In this section— "sroup of employees" includes— (a) employees of a single employer; and (b) employees of a multi-employer; and (c) employees of an employer who are engaged in a project, including a proposed project; and (d) employees proposed to be employed in a new business by an employer, other than a multi-employer; and29 (e) employees of— (i) _ the State; or (11) an entity established for a public purpose under a law of the State or Commonwealth; or (11) another entity in which the State has a controlling interest. 29 See section 167 (Successor employers bound) for what happens on the transfer of a business to a new employer. COM NHN fF 1113 15 17 19 21 s 142 115 s 143 Industrial Relations Who may make certified agreements 142. A certified agreement may be made between— (a) on the one hand, the employer; and (b) on the other hand— (i) 1 or more employee organisations who represent, or are entitled to represent, any employees who are, or are eligible to be, members of the organisation; or (11) the employees at the time the agreement is made. Proposed parties to be advised when agreement is proposed 143.(1) This section applies when a person (the "proposer") proposes to make a certified agreement. (2) The proposer must advise the following persons, in writing, of the proposer's intention to begin negotiations for the agreement— (a) the other proposed parties to the agreement; and (b) fora project agreement—all relevant employee organisations and the commission. (3) The proposer must advise the persons at least 14 days before the negotiations are proposed to begin. (4) If the agreement proposed is a project agreement, an organisation that receives advice under subsection (2) and wants to be party to the agreement must give written notice of that fact to— (a) the proposer; and (b) the commission. (5) If the agreement proposed is a multi-employer agreement, a person who receives advice under subsection (2) and wants to be party to the agreement must give written notice of that fact to the proposer. (6) A notice under subsection (4) or (5) must be given within 21 days of the person receiving the advice. (7) An agreement may only be made within that 21 days if the other proposed parties to the agreement, and all relevant employee organisations, orAngxan fF WwW NY 11 13 16 18 2023 26 28 30 s 144 116 s 144 Industrial Relations have given a notice under subsection (4) or (5). (8) In this section. "multi-employer agreement" means an agreement made with a multi-employer. "relevant employee organisation" means an employee organisation that— (a) is a party to an award or industrial agreement that binds the employer, or would bind the employer apart from an award under the Commonwealth Act; or (b) if there is no award or agreement that binds, or would bind, the employer—is entitled to represent the industrial interests of the relevant employees. What is to be done when an agreement is proposed 144.(1) This section does not apply to a certified agreement to be made with an employee organisation for employees proposed to be employed in a new business. (2) When a certified agreement is proposed to be made with an employee organisation or employees, the employer must take reasonable steps to ensure— (a) at least 14 days before the relevant employees are asked to approve the agreement, each relevant employee has, or has ready access to, the proposed written agreement; and (b) the terms of the agreement (including the procedures for preventing and settling disputes), and the effect of the terms, are explained to each relevant employee before approval is given; and (c) for an agreement with employees—each relevant employee is informed that he or she may ask a relevant employee organisation to represent the employee in negotiating with the employer about the agreement. (3) If a relevant employee does ask a relevant employee organisation to represent the employee, the employer must give the organisation a reasonable opportunity to represent the employee in negotiating with the employer about the agreement before it is made. rr OO COND NA Bw WN ee 141720232628 3032 s 145 117 s 145 Industrial Relations (4) Subsection (3) stops applying if, after the request is made— (a) the relevant employee withdraws the request; or (b) the employee stops being a relevant employee. (5) In this section— "relevant employee organisation" means an employee organisation— (a) of which a relevant employee is a member; and (b) that— (i) is a party to an award or industrial agreement that binds the employer, or would bind the employer apart from an award under the Commonwealth Act; or (11) if there is no award or agreement that binds, or would bind, the employer—is entitled to represent the industrial interests of the relevant employees. Negotiations for project agreements 145.(1) This section applies if more than 1 employee organisation has given notice, under section 143(4), that it wants to be party to a proposed project agreement. (2) The employer must negotiate with the single bargaining unit, through a person nominated by the single bargaining unit to represent it. (3) An organisation may withdraw as a party to a proposed project agreement by written notice to— (a) the other organisations that comprise the single bargaining unit; and (b) the proposer; and (c) the commission. (4) In this section— "single bargaining unit" means all the employee organisations that have given notice, under section 143(4), that they want to be party to a proposed project agreement. 1619 21 23 2528 s 146 118 s 148 Industrial Relations Negotiations must be in good faith 146. When negotiating the terms of a proposed agreement, the proposed parties to the agreement must negotiate in good faith. Examples of good faith in negotiating— . agreeing to meet at reasonable times proposed by another party . attending meetings that the party had agreed to attend . complying with negotiation procedures agreed to by the parties . not capriciously adding or withdrawing items for negotiation . disclosing relevant information as appropriate for the negotiations . negotiating with all of the parties. Peace obligation period to assist negotiations 147.(1) To enable the proposed parties to reach agreement about the terms of the proposed agreement, the proposed parties can not during the peace obligation period— (a) take industrial action for the purpose of— (i) supporting or advancing claims made in relation to the proposed agreement; or (11) responding to industrial action by the employer or the relevant employees; or (b) ask the commission to help the parties to make the agreement under section 148. (2) In this section— "peace obligation period" means the period of 21 days after the giving of the advice mentioned in section 143(2), ending no earlier than 7 days after the nominal expiry date of any existing certified agreement. Assistance in negotiating by conciliation 148.(1) This section applies if, after the peace obligation period has ended— (a) a party who has attempted to negotiate a certified agreement (a CMON DAWN WN LD e Oo 1317 19 21 2428 s 148 119 s 148 Industrial Relations "negotiating party"), by a declaration of a breakdown in negotiations, has asked the commission to help the parties to make a certified agreement; or (b) the commission becomes aware that a negotiating party is engaging in industrial action that— (i) is threatening, or has caused, significant damage to the economy, community or local community, or part of the economy; or (11) is threatening to endanger, or has endangered, the personal health, safety or welfare of the community or part of it. (2) To help the parties to reach agreement, the commission has the conciliation powers it would have under section 230 if that section applied to certified agreement negotiations instead of to industrial disputes. Example— The commission might help the parties to— . develop and consider options and processes . negotiate in good faith. (3) Also, the commission may make orders to— (a) promote the efficient conduct of negotiations; or (b) ensure the parties negotiate in good faith; or (c) otherwise help the parties to negotiate the agreement. (4) In particular, the commission may order a party to take, or not to take, specified action. (5) In deciding what orders to make, the commission must consider the conduct of each of the parties. (6) If 2 or more employee organisations are involved in the negotiations or proposed negotiations, the commission may order that the organisations be represented, for conciliating the matter, by a single person or group of persons authorised by the organisations to represent them (whether generally or for the particular negotiations). (7) Subsection (6) does not limit subsection (2). onan ns WwW NR 1215171921 23 25 2729 s 149 120 s 149 Industrial Relations Arbitration if conciliation unsuccessful 149.(1) This section applies if— (a) (b) (c) the commission considers conciliation has not been successful because industrial action— (i) has been protracted; or (11) is threatening, or has caused, significant damage to— (A) the economy or local community, or part of the economy; or (B) asingle enterprise; or (C) employees; or (11) is threatening to endanger, or has endangered, the personal health, safety or welfare of the community or part of it; or the commission considers it is not likely that further conciliation will result in the matter being settled within a reasonable time, considering, among other things, the history of industrial relations in the enterprise or industry to which the proposed agreement is to relate; or all the negotiating parties consider conciliation has been unsuccessful and ask the commission to determine the matter by arbitration. (2) To determine the matter by arbitration— (a) (b) the commission has the arbitration powers that it would have under section 23030 if that section applied to certified agreement negotiations instead of industrial disputes; and the commission may— (i) give directions or make orders of an interlocutory nature; or (ii) order that section 1743! not apply to industrial action organised, or engaged in, by a negotiating party from the making of the order until the commission determines the 30 Section 230 (Action on industrial dispute) 31 Section 174 (Protected industrial action) CON DN BW NY e Oo ee NR ll etl ete lo' NAN BW Nee ome) N pan NNN BWW NN nan wn yn OCOon s 150 121 s 150 Industrial Relations matter by arbitration. (3) In exercising the arbitration powers, the commission must consider at least the following— (a) the matters that are at issue; (b) the merits of the case; (c) the interests of the negotiating parties; (d) the public interest, and to that end must consider— (i) _ the objects of this Act; and (11) the likely effects of the commission's determination on the community, economy, industry generally and on the particular enterprise or industry concerned; (e) the extent to which the negotiating parties have negotiated in good faith. (4) The full bench may establish principles about the arbitration of certified agreements. (5) After the principles have been established, the commission must exercise its power to arbitrate in a way that is consistent with the principles. (6) Unless all the negotiating parties agree, the commission as constituted for the conciliation can not exercise the arbitration powers mentioned in this section. Determinations made under s 149 150.(1) A determination under section 149 must specify a date, of no later than 3 years after the date on which the determination is made, as its nominal expiry date. (2) Subject to this section, the determination operates at all times after it commences and can not be amended. (3) The determination has effect subject to any conditions specified in it. (4) Before the determination's nominal expiry date has passed, the commission must not revoke the determination unless satisfied— (a) the employer and the | or more organisations, or a majority of the BR WN ee ee WN K-§ow eoANXA DAW Ree ns Ree na Nee ome) 2326 29 s151 122 s151 Industrial Relations employees, who are bound by the determination have agreed to the revocation (for example, because they propose to make an agreement under division 132); and (b) the revocation would not be against the public interest. (5) After the determination's nominal expiry date— (a) the employer, or an organisation, bound by the determination; or (b) a majority of the employees to whom the determination applies; may give notice to all of the employees, or other employees, to whom the determination applies and persons, or other persons, who are bound by the determination and to the commission, stating that the determination is revoked with effect from a specified day. (6) The specified day must be at least 28 days after— (a) the day on which the notice is given; or (b) if it is given to different persons on different days—the day on which it is last given. Steps to be repeated if proposed agreement is amended 151.(1) If a proposed agreement is amended for any reason, the steps in section 144(2) and (3)33 must be taken again for the agreement as amended. (2) If the agreement is being amended only by adding an employer (a "new employer") as a party to the agreement, the steps need only be taken in relation to the new employer's employees. (3) However, the steps need not be taken if the commission is satisfied the proposed agreement was amended only— (a) for a formal or clerical reason; or (b) in another way that does not adversely affect a relevant employee's interests. 32 Division 1 (Making agreements) 33 Section 144 (What is to be done when an agreement proposed) FKP owome NY DA WN BP WNOe Se See N = w Ree ns 18 2023 26 s 152 123 s 155 Industrial Relations Certificate as to requested representation 152.(1) An employee organisation may apply to the registrar for a certificate stating that an employee has requested the organisation, under section 144, to represent the employee in negotiating with the employer about a proposed agreement. (2) An employer may apply to the registrar for a certificate stating that the employer need not negotiate with an employee organisation about a proposed agreement because of a circumstance mentioned in section 144(4). (3) A certificate must identify the organisation, the employer and the proposed agreement. (4) A certificate must not identify any of the employees concerned. (5) The certificate is, for all purposes of this Act, evidence of the matters stated in it. Division 2—Certifying agreements Time for applying for certification 153. An application for the commission to certify an agreement must be made within 21 days after the day on which the agreement is signed by or for all the parties. Notice of hearing 154. The registrar must, at least 7 days before an application for certification of an agreement is to be heard, place a notice in the registry detailing— (a) the names of the parties to the agreement; and (b) the relevant or designated award; and (c) the hearing date. Right of employee organisation to be heard 155.(1) All relevant employee organisations are entitled to be heard on an 17212427 s 156 124 s 156 Industrial Relations application for the certification of an agreement. (2) As soon as practicable after the application is made, the commission must notify all relevant employee organisations that— (a) the application has been made; and (b) the organisation is entitled to be heard on the application. (3) This section does not affect another right of an employee organisation, or anyone else, to be heard on or intervene in an application. (4) In this section— "relevant employee organisation" means an employee organisation that— (a) is a party to an award or industrial agreement that binds the employer, or would bind the employer apart from an award under the Commonwealth Act; or (b) if there is no award or agreement that binds, or would bind, the employer—is entitled to represent the industrial interests of the relevant employees. Certifying an agreement 156.(1) The commission must certify the agreement if, and must not certify the agreement unless, it is satisfied — (a) the things required by sections 143, 144 and 14534 were done, and in particular, the terms of the agreement were explained in a way that was appropriate, having regard to the persons' particular circumstances and needs; and Examples of persons with particular circumstances and needs— 1. Women 2. Persons from a non-English speaking background 3. Young persons 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) oarAnian un fF WN 111418 2022 24 26 s 156 125 s 156 Industrial Relations (b) (c) (d) (f) (g) (h) 0) (k) the employer did not coerce, or attempt to coerce, an employee— (i) not to make a request mentioned in section 144(2)(c); or (11) to withdraw the request; and the agreement is in writing and signed by or for all the parties; and the agreement includes procedures for preventing and settling disputes; and the agreement specifies a nominal expiry date that is— (i) for a project agreement—the date no later than the date on which the project ends; and (ii) for another agreement—a date no later than 3 years after the date on which the agreement will come into operation; and the agreement contains, or is accompanied by, information prescribed under a regulation; and a valid majority of the relevant employees employed at the time approved the agreement; and the agreement passes the no-disadvantage test; and for a project agreement—each employee organisation that has given notice of wanting to be party to the agreement under section 143(4), and that has not withdrawn as a party under section 145(3), is a party to the agreement; and for an agreement to be made with an employee organisation, other than an agreement for a new business— (i) each employee organisation that is a party to the award or industrial agreement that binds the employer, or would bind the employer apart from an award under the Commonwealth Act, is a party to the agreement; or (ii) if no award or industrial agreement binds the employer—each employee organisation that is entitled to represent the industrial interests of the relevant employees is a party to the agreement; and for an agreement for a new business— (i) the agreement was made before the employment of any of s 157 126 s 157 Industrial Relations the persons in the new business at the new workplace whose employment will be subject to the agreement; and (11) the agreement has been made with 1 or more employee organisations that are entitled to represent the industrial interests of the persons. (2) Subsection (1)(j) does not apply if the commission is satisfied an employee organisation mentioned in subsection (1)(j)— (a) has been given the opportunity to be a party to the agreement, but does not want to be a party; or (b) has no members who are to be bound by the agreement. When commission to refuse to certify an agreement 157.(1) The commission must refuse to certify an agreement if it considers that a provision of the agreement is inconsistent with— (a) a provision of— (i) chapter 2, part 5; or (ii) chapter 3; or (11) chapter 4;35 or (b) an order by the commission under any of those provisions; or (c) an injunction granted by the commission under any of those provisions. (2) The commission must refuse to certify an agreement if satisfied— (a) the employer has, in connection with negotiating the agreement, contravened— (i) section 170; or (11) chapter 4;36 or 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) Cm IAD WDRwW NY e Oo 13 151720 23 25 s 158 127 s 158 Industrial Relations (b) the employer has caused an entity to engage, in connection with negotiations for an agreement, in conduct that, had the employer engaged in the conduct, would be a contravention by the employer of— (i) section 170; or (11) chapter 4; or (c) an entity has, for the employer— (i) engaged in conduct mentioned in paragraph (b); or (i1) caused another entity to engage in the conduct. (3) Subsection (2) does not apply if the commission is satisfied the contravention or conduct, and its effects, have been fully remedied. (4) The commission must refuse to certify an agreement if it considers a provision of the agreement is a discriminatory provision. (5) The commission must refuse to certify an agreement if— (a) the agreement applies only to a group or category of employees; and (b) the commission considers the agreement defines the group or category in a way that results in the employees not being subject to the agreement, if it would be reasonable for the employees to be subject to the agreement, having regard to— (i) the nature of the work performed by the employees whose employment is not subject to the agreement; and (11) the organisational and operational relationships between the group or category and the rest of the employees; and (c) the commission considers it unfair that the employment of those employees is not subject to the agreement. Other options open to commission instead of refusing to certify agreement 158.(1) If, under section 156 or 157, the commission has grounds to refuse to certify an agreement— (a) the commission may accept an undertaking from 1| or more of the ro OO ON DN BRWNeK il oon wn os eR num Nee SOonMN Nw Ne NN Rw Nv Nn 28 30 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 Procedures for preventing and settling disputes 21 159. 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 When an agreement passes the no-disadvantage test 160.(1) An agreement passes the no-disadvantage test if it does not disadvantage employees in relation to their employment conditions. (2) An agreement disadvantages employees only if the commission considers it would result in a reduction in the employees' entitlements or protections. (3) Subsection (2) applies subject to section 161 and 162. (4) Subsection (2) does not apply if the commission considers that, in the context of the employment conditions considered as a whole, the reduction is not against the public interest. Example of subsection (4)— The making of the agreement is part of a reasonable strategy to deal with a 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 president may require the registrar to give the commission a report comparing the agreement with the employee's entitlements or protections. (6) In this section— "entitlements or protections" means the entitlements or protections under— (a) a relevant award, designated award, industrial agreement, order under part 5; or (b) chapter 2, including as reviewed by a general ruling of the full bench. Special case—employee eligible for supported wage system 161.(1) This section applies if a certified agreement provides for the payment of wages to an employee who is eligible for the supported wage system at a rate not less than the rate set in accordance with that system for the employee. (2) The agreement does not disadvantage the employee in relation to the BEOoD OM NIDWN PW BH Se ee N eeilend RW RP Ree NAW Co Ne cow Nw Ne N RBS 2729 s 162 130 s 162 Industrial Relations employee's employment conditions only because of the reduction of the employee's wages. Special case—employee undertaking approved apprenticeship or traineeship 162.(1) This section applies if— (a) a certified agreement provides for the payment of wages to an employee undertaking approved training (a "training employee") in a particular occupation or work, or occupation or work similar to the particular occupation or work (the "work"); and (b) there is a relevant award, designated award or order providing for the payment of wages to employees undertaking benchmark training for the work. (2) The agreement is taken to disadvantage the training employee in the employee's employment conditions if the agreement provides for the payment of wages to the employee at a rate less than the rate payable to an employee undertaking benchmark training (the "benchmark employee") under the relevant award, designated award or order, as adjusted under subsection (3). (3) For subsection (2), the rate payable to a benchmark employee is to be adjusted to take into account the proportionate difference, as decided by the approving authority, between the productive time of a training employee and the productive time of a benchmark employee. (4) If the agreement adopts, as the qualification for a wage level, a criterion decided by the approving authority (the "decided criterion") instead of a specified criterion applying under the relevant award, designated award or order (the "award criterion"), the award is taken, for this section, to have effect as if the decided criterion were substituted for the award criterion. (5) This section does not apply to a trainee bound by— (a) the Training Wage Award—State; (b) the National Training Wage Award 1994. (6) In this section— Ne arta wn fw 12 141618 2022 242628 3032 s 163 131 s 164 Industrial Relations "benchmark training" means training for an apprentice or trainee in a particular trade, occupation or work if the trade, occupation or work is recognised under an award or under an order made under section 13738 Deciding designated awards 163.(1) This section applies if— (a) an employer or organisation of employees proposes to make a certified agreement; and (b) there is no relevant award for some or all of the persons to whom the agreement will apply. (2) The employer or organisation must apply to the commission for a decision under subsection (3). (3) On application, the commission must decide that an award (regulating employment conditions of employees engaged in a similar kind of work as the person under the proposed agreement) is appropriate for deciding whether the agreement passes the no-disadvantage test. (4) The commission must inform the employer or organisation in writing of its decision. Division 4—Effect of certified agreements When a certified agreement is in operation 164.(1) A certified agreement starts operating when it is certified. (2) The agreement continues to operate until— (a) after its nominal expiry date, it is replaced by another certified 38 Section 137 (Order setting minimum wages and conditions) BRwWNe eorAynry Dw 12 1416 18 2123 s 165 132 s 166 Industrial Relations agreement; or (b) it is terminated under section 158, 171, 172 or 173.39 Certified agreement's effect on awards, agreements or orders 165.(1) While a certified agreement operates, it prevails, to the extent of any inconsistency, over an award or industrial agreement or an order made under section 137. (2) While a project agreement operates, it operates to the exclusion of any other certified agreement or QWA. Persons bound (a) (b) (c) 166.(1) A certified agreement binds— the employer— (i) for an agreement made by an organisation of employers for a project—for whom the agreement was made; or (11) who made the agreement; and all persons who are, while the agreement operates, relevant employees; and if the agreement is made with 1 or more employee organisations—the | or more organisations. (2) For a certified agreement made between the employees and employer, the commission must decide that the agreement also binds an employee organisation if— (a) (b) before the agreement is certified, the organisation gives the commission and employer notice that it wants to be bound by the agreement; and the organisation satisfies the commission that— 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) oN ANB w 11 13 16 18 2023 s 167 133 s 167 Industrial Relations (i) _ the organisation has at least 1 member— (A) whose employment will be subject to the agreement; and (B) who asked the organisation to give the notice; and (11) the organisation— (A) isa party to an award or industrial agreement that binds the employer, or would bind the employer apart from an award under the Commonwealth Act; or (B) if there is no award or agreement that binds, or would bind, the employer—is entitled to represent the industrial interests of the relevant employees. Successor employers bound 167.(1) This section applies if— (a) an employer is bound by a certified agreement; and (b) ata later time a new employer becomes the successor (whether or not immediate) of the whole or a part of the business of the employer bound by the agreement. (2) From the later time— (a) the new employer is bound by the certified agreement, to the extent it relates to the whole or part of the business; and (b) the previous employer stops being bound by the certified agreement, to the extent it relates to the whole or part of the business; and (c) areference in this part to the employer includes a reference to the new employer, and ceases to refer to the previous employer, to the extent the context relates to the whole or part of the business. BR WN = ee EB OowU OID w Se ee KR WwW WN RP Ree NAW Co NR Ne) N N ayes N NN Hun s 168 134 s 169 Industrial Relations Division 5—Extending, amending or terminating certified agreements Extending a certified agreement 168.(1) On or before the nominal expiry date ofa certified agreement, the following persons may apply to the commission to extend a certified agreement's nominal expiry date— (a) if 1 or more organisations are bound by the agreement—the employer and the | or more organisations; (b) otherwise—the employer. (2) However, the nominal expiry date can not be extended beyond— (a) for a project agreement—the date on which the project ends; or (b) for another agreement—3 years after the date on which the agreement came into operation. (3) The extension has no effect unless the commission approves it. (4) The commission must approve the extension if, and must not approve the extension unless, satisfied a valid majority of the relevant employees at the time approved the extension. (5) The extension takes effect when the commission's approval takes effect. (6) This section does not apply to— (a) anagreement made with an employee organisation for employees proposed to be employed in a new business; or (b) an agreement that was taken to pass the no-disadvantage test under section 160.40 Amending a certified agreement 169.(1) This section does not apply to an amendment of the parties to the agreement, other than in a multi-employer agreement (a "multi-employer amendment"). 40 Section 160 (When an agreement passes the no-disadvantage test) COM NID WBW Bw e Oo ee NR = w eRe DAuns ile' on e \o NN re Oo NON Wn 26 s 169 135 s 169 Industrial Relations (2) The following persons may apply to the commission to amend a certified agreement— (a) if 1 or more organisations are bound by the agreement—the employer and the | or more organisations; (b) for a multi-employer amendment—the person who wants to become a party to the agreement (the "new employer"); (c) otherwise—the employer. (3) The commission must approve the amendment if, and only if, satisfied— (a) the amendment has been approved by— (i) for a multi-employer amendment— (A) a valid majority of the new employer's employees whose employment will be subject to the amended agreement; and (B) the other parties to the agreement, or their representative; or (11) for any other amendment—a valid majority of the relevant employees at the time; and (b) the commission would be required to certify the agreement as amended if it were an agreement whose certification was applied for under this part. (4) In applying subsection (3)(b)— (a) a requirement about a majority of persons making or approving the agreement is taken to be satisfied; and (b) section 1584! is to be disregarded. (5) The amendment takes effect when the commission's approval takes effect. (6) The commission may, on application by a person bound by a certified agreement, amend a certified agreement— 41 Section 158 (Other options open to commission instead of refusing to certify agreement) ono AI NWN Bw Ne eS eK Oo See BRWN eR num ile' on Nnue me oO N N N RBS N Nn NN Na NN \o co s170 136 s170 Industrial Relations (a) to remove ambiguity; or (b) to include, omit or amend a term, however specified, that allows an employer to stand-down an employee; or (c) im another way, if— (i) _ the following persons have agreed to the amendment— (A) for an agreement between the employer and an employee organisation—the employer and organisation; (B) for an agreement between the employer and employees—the employer and a valid majority of the relevant employees at the time; and (11) the commission is satisfied the amendment does not disadvantage the relevant employees; and (111) the commission is satisfied exceptional circumstances have arisen in the workplace that necessitate the amendment. (7) A certified agreement may be amended only under— (a) this section (including as it applies under section 170); or (b) section 168; or (c) section 171. Amendment if discrimination between unionists and non-unionists 170.(1) This section applies if— (a) 1 or more employees whose employment is not subject to the agreement ask the employer to— (i) amend the agreement so that their employment is subject to the agreement; and (11) seek the approval of the commission for the amendment under section 169; and (b) their employment would be subject to the agreement if— (i) they were members of an employee organisation or of a particular employee organisation; or 20 22 24 26 29 s171 137 s172 Industrial Relations (11) they were not members of an employee organisation or of a particular employee organisation. (2) The employer must seek the commission's approval to amend the agreement in accordance with the request. (3) The commission must disregard section 169(3)(a) in deciding whether to approve the amendment. Other options open to commission instead of refusing to approve amendment of agreement 171.(1) If, for section 170, the commission is not satisfied as required under section 169(3)— (a) before refusing to approve the amendment, it must give the persons who amended the agreement an opportunity to take action necessary to enable the commission to approve the amendment; or (b) it may accept an undertaking from | or more of the persons who amended the agreement in relation to the operation of the agreement as amended and, if satisfied the undertaking meets the commission's concerns, approve the amendment. (2) If an undertaking is not complied with, the commission, after giving the persons who amended the agreement an opportunity to be heard, may— (a) order the | or more persons who gave the undertaking to comply with the undertaking; or (b) undo any effect of the amendment; or (c) terminate the amendment. Terminating certified agreement on or before its nominal expiry date 172.(1) On or before a certified agreement's nominal expiry date, the following persons may terminate the agreement by notice— (a) if 1 or more organisations are bound by the agreement—the employer and the | or more organisations; (b) otherwise—the employer. Dn BPW NE 1214 1618 20 22 24 27 29 s 173 138 s174 Industrial Relations (2) The commission must approve the termination if, and only if, satisfied a valid majority of the relevant employees at the time approve its termination. (3) The termination takes effect when the commission's approval takes effect. Terminating agreement after its nominal expiry date 173.(1) After a certified agreement's nominal expiry date, the following persons may apply to the commission to terminate a certified agreement— (a) the employer; (b) a valid majority of the relevant employees; (c) an employee organisation that is bound by the agreement and that has at least 1 member who is a relevant employee. (2) If the agreement does not provide for the way it may be terminated after the agreement's nominal expiry date has passed, the person who intends to apply to terminate it must give all other persons bound by the agreement notice of the intention. (3) The commission must approve the termination if, and only if, satisfied— (a) for an agreement that provides that it may be terminated if certain conditions are met—the conditions have been met; or (b) for an agreement that does not provide for the way it may be terminated—it is in the public interest to terminate the agreement. (4) The termination takes effect when the commission's approval takes effect. Division 6—Industrial action Protected industrial action 174.(1) This section applies to industrial action that is organised, or engaged in, by a protected person or the employer for the purpose of — (a) supporting or advancing claims made in relation to a proposed ns WwW NR 28 s174 139 s174 Industrial Relations agreement; or (b) responding to industrial action by the employer or the relevant employees. (2) An action for the industrial action taken after the peace obligation period does not lie under any law, unless the industrial action has involved or is likely to involve— (a) personal injury; or (b) wilful or reckless destruction of, or damage to, property; or (c) the unlawful taking, keeping or use of property. (3) However, subsection (2) applies to— (a) a strike by a protected person, only if the protected person has genuinely tried to reach agreement before the strike starts; and (b) a lockout by an employer, only if the employer has genuinely tried to reach agreement before the lockout starts. (4) Despite subsection (2), an action for defamation may be brought in relation to anything that happened during the industrial action. (5) If the employer lawfully locks out an employee, the employer may refuse to pay the employee remuneration for the period of the lockout. (6) The employer can not lock out an employee unless the continuity of the employee's employment, for the purposes prescribed under a regulation, is not affected by the lockout. (7) In this section— "protected person" means— (a) an employee organisation that is a negotiating party; or (b) an officer or employee of the employee organisation acting in that capacity; or (c) an employee who is a negotiating party or a member of the employee organisation. Co ON DNF WN e Oo aon Nw eile' Rw eR num ile' on NNR re OO Nw NN N BR WwW WN NN Hun NN on s 175 140 s 176 Industrial Relations Notice of industrial action to be given 175.(1) Section 174(2) does not apply to industrial action unless the person intending to take the action gives all of the negotiating parties— (a) if the action is in response to, and is taken after the start of, industrial action by another negotiating party in relation to a proposed agreement—written notice of the intended action; or (b) otherwise—at least 3 working days written notice of the intended action. (2) However, an employer who is negotiating an agreement with employees may take other reasonable steps to notify the employees of the intended action, instead of giving a written notice. (3) A notice must state the nature of the intended action and the day when it will begin. (4) A notice may be given before the end of the peace obligation period if the intended action does not start before the end of the period. Secret ballot about taking industrial action 176.(1) This section applies if the commission considers— (a) industrial action is being taken, or industrial action is threatened or probable, in relation to a proposed certified agreement; and (b) finding out the relevant employees' attitudes about the matters giving rise to the industrial action might help— (1) _ to stop or prevent the industrial action; or (11) to settle the matters. (2) The commission may order that a vote of employees be taken by secret ballot42 (with or without a provision for absent voting), in accordance with the commission's directions, to find out their attitudes about the matters. (3) After an order is made, the organising of, or engaging in, industrial action by the employee organisation or employees is not protected industrial 42 See section 285 (Conducting a secret ballot) FBEOoD OX ANR WN YL il oon wn Ree ns 17 19 21 23 2629 s177 141 s177 Industrial Relations action unless— (a) the ballot has been taken; and (b) the industrial action has been approved by a majority of the valid votes cast in the ballot. (4) The commission must revoke the order if after an order is made, but before the vote is taken, the commission forms the view that the ballot should not proceed because it has satisfied itself that— (a) the matters have been, or are about to be, settled; or (b) the industrial action has stopped or been prevented, or is about to stop or be prevented. (5) In subsection (3)— "organisation" includes— (a) amember of the organisation; and (b) an officer or employee of the organisation acting in that capacity. Industrial action must be properly authorised 177.(1) Section 174 does not apply to industrial action engaged in by members of an employee organisation that is a negotiating party unless, before the industrial action begins— (a) the industrial action is properly authorised by the organisation's management committee or someone authorised by the committee to authorise the industrial action; and (b) if the organisation's rules state the way industrial action is to be authorised—the industrial action is properly authorised under the rules; and (c) notice of the giving of the authorisation is given to the registrar. (2) Industrial action is taken to be properly authorised under an employee organisation's rules even though a technical breach has happened in authorising the industrial action, if the person who committed the breach acted in good faith. (3) Examples of a technical breach in authorising industrial action include— oO TDW NDMN Bw NY a RW NY Fe 1720232729 31 s 178 142 s179 Industrial Relations (a) acontravention of the organisation's rules; and (b) an error or omission in complying with this Act; and (c) participation, by a person not eligible to do so, in the making of a decision by a management committee, or by members, of the organisation. (4) Industrial action is taken to have been properly authorised under an employee organisation's rules, and to have been authorised before the industrial action began, unless— (a) the commission declares in proceedings that the industrial action was not properly authorised under the rules; and (b) the proceedings were brought in the commission within 6 months after the notice was given to the registrar under subsection (1)(c). (5) So far as an employee organisation's rules specify the way in which industrial action under this division is to be authorised, the rules do not contravene section 43543 unless the way specified contravenes that section. No protection if certification application not timely 178. Industrial action is not protected by section 174 unless an application to the commission to certify an agreement is made within 21 days after the day when the agreement is signed by or for all the parties. Employer not to dismiss employee for engaging in protected industrial action 179.(1) An employer must not— (a) dismiss an employee, injure an employee in his or her employment or change an employee's position to the employee's prejudice; or (b) threaten to dismiss an employee, injure an employee in his or her employment or change an employee's position to the employee's prejudice; 43 Section 435 (General restrictions) 1821 2427 s 180 143 s 180 Industrial Relations wholly or partly because the employee is proposing to engage, is engaging, or has engaged, in protected industrial action. (2) Subsection (1) does not apply to any of the following actions taken by the employer— (a) standing-down the employee; (b) refusing to pay the employee if, under common law, the employer is permitted to do so because the employee has not performed work as directed; (c) action of the employer that is itself protected industrial action. (3) In proceedings under section 18344 for an alleged contravention of subsection (1), it is to be presumed, unless the employer proves otherwise, that the alleged conduct of the employer was carried out wholly or partly because the employee was proposing to engage, was engaging, or had engaged, in protected industrial action. Remedies if employee dismissed etc. for engaging in protected industrial action 180.(1) If an employer contravenes section 179(1), the commission may order the employer— (a) if the contravention was constituted by dismissing an employee—to reinstate the employee to the position the employee occupied immediately before the dismissal or re-employ the employee in a position at least as favourable as that position; and (b) to pay the employee dismissed, injured or prejudiced, compensation for loss suffered because of the dismissal, injury or prejudice. (2) The rights of and relating to reinstatement and re-employment that are conferred on an employee by this section do not limit any other rights of the employee. 44 Section 183 (Penalties for contravening penalty provisions) COND Nn BW Ne 111316 18 2022 2427 s 181 144 s 182 Industrial Relations When industrial action must not be taken 181.(1) This section applies to— (a) a certified agreement from when it starts operating until its nominal expiry date has passed; and (b) adetermination under section 14945 while it operates. (2) The following persons must not engage in industrial action for the purpose of supporting or advancing claims against the employer in relation to the employment of employees whose employment is subject to the agreement or determination— (a) an employee whose employment is subject to the agreement or determination; (b) an employee organisation that is bound by the agreement or determination; (c) an officer or employee of the employee organisation acting in that capacity. (3) If the employee, organisation or officer does so, the action is not protected industrial action. (4) The employer must not lock out an employee from his or her employment for the purpose of supporting or advancing the employer's claims in relation to the employment of employees whose employment is subject to the agreement or determination. (5) If the employer does so, the lockout is not protected industrial action. Division 7—Penalty provisions Penalty provisions 182. In this division, each of the following is a "penalty provision" — (a) section 170(2);46 45 Section 149 (Arbitration if conciliation was unsuccessful) 46 Section 170 (Amendment if discrimination between unionists and non-unionists) Fo OMANI D HN FW NY ee ee wn Ree ns Ree na NNR KF COO we N N 26 s 183 145 s 183 Industrial Relations (b) section 179(1);47 (c) section 181(2) or (4); (d) section 185 (1) or (3)48 Penalties for contravening penalty provisions 183.(1) A contravention of a penalty provision is not an offence. (2) However, a magistrate may, by order, impose a penalty on a person who contravenes a penalty provision. (3) The penalty can not be more than the amount of the monetary value of— (a) for a corporation—135 penalty units; or (b) otherwise—27 penalty units. (4) An application for an order for a contravention of section 170(2) may be made by— (a) the employees making the request mentioned in section 170; or (b) an employee organisation of which any of the employees making the request is a member; or (c) an inspector; or (d) another person prescribed under a regulation. (5) An application for an order for a contravention of section 179(1) may be made by— (a) the employee concerned; or (b) an employee organisation of which the employee is a member; or (c) an inspector; or 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.) w 0M ND Ww gp 11 13 16 18 20 22 s 183 146 s 183 Industrial Relations (d) another person prescribed under a regulation. (6) An application for an order for a contravention of section 181(2) or (4) may be made by— (a) an employee whose employment is subject to the certified agreement concerned; or (b) another person who is bound by the agreement; or (c) another person prescribed under a regulation. (7) An application for an order for a contravention of section 185(1) or (3)49 may be made by— (a) an employee whose employment is subject to the agreement, or will be subject to the proposed agreement concerned; or (b) another person bound by the agreement or who will be bound by the proposed agreement; or (c) the person who allegedly was intended to be coerced; or (d) an employee organisation of which the person is a member; or (e) an inspector; or (f) another person prescribed under a regulation. (8) The magistrate may order that a penalty, or part of a penalty, be paid to any person who may have made the application (other than an officer or employee of the State or a public service officer). (9) Any part of the penalty that is ordered to be paid to the person must first be paid to the person. (10) The remainder of the penalty must be paid to the consolidated fund. 49 Section 185 (Coercion of persons to make, amend or terminate certified agreements etc.) BR WN ee ee WN § oOo om ADA YW Se Se See YN HD wn £& Nee ome) NN Ne N we s 184 147 s 185 Industrial Relations Division 8—General Secret ballot on valid majority 184.(1) This section applies if— (a) the commission is required under this part to be satisfied that a valid majority of the persons employed at a particular time whose employment is or will be subject to an agreement have made or terminated the agreement, or given an approval; and (b) the commission is not so satisfied. (2) The commission may order a vote be taken by secret ballot59 (with or without a provision for absent voting), in accordance with the commission's directions, of employees whose employment is or will be subject to the agreement to find out whether they would make or terminate the agreement, or give the approval. (3) If a majority of the validly cast votes is in favour of making or terminating the agreement, or giving the approval, the commission is taken to be satisfied of the requirement. (4) Before a vote is taken, the commission may revoke an order under subsection (2) if it becomes satisfied that the requirement of subsection (1)(a) has been met. Coercion of persons to make, amend or terminate certified agreements ete. 185.(1) A person must not take, or refrain from taking, industrial action or other action with intent to coerce someone else to agree, or not to agree, to— (a) making, amending or terminating, or extending the nominal expiry date of, an agreement under this part; or (b) approving anything mentioned in paragraph (a). (2) Subsection (1) does not apply to industrial action that is protected 50 See section 285 (Conducting a secret ballot) for the way a secret ballot is conducted. 21 2326 28 s 186 148 s 187 Industrial Relations industrial action. (3) An employer must not coerce, or attempt to coerce, an employee of the employer— (a) not to make a request mentioned in section 144(2)(c)5! in relation to an agreement the employer proposes to make; or (b) to withdraw the request. (4) In this section— "take or refrain from taking" includes threaten to take or refrain from taking. Complementary laws 186.(1) This section applies to enable the Australian commission to perform functions or exercise powers. (2) The Commonwealth Act, part VIB (and the other provisions of that Act as far as they relate to part VIB) applies as a law of the State, with any amendments prescribed under a regulation. PART 2—QUEENSLAND WORKPLACE AGREEMENTS Division 1—Preliminary Definitions for pt 2 187. In this part— "additional approval requirements" means the additional approval 51 Section 144 (What is to be done when an agreement is proposed) C©mo A DA NAP WN 12 1417 20 s 187 149 s 187 Industrial Relations requirements in section 202.52 "amendment agreement" see section 197. "ancillary document" means any of the following— (a) an amendment agreement; (b) an extension agreement; (c) a termination agreement; (d) a termination notice. "approval notice" means an approval notice issued by the commission. "bargaining agent" means a person appointed as a bargaining agent under section 196. "certified copy" of a document means a copy that is certified as being a true copy of the document. "employee" see section 188(2). "employer" see section 188(2). "existing employee", in relation to a QWA, means an employee who signed the QWA after commencing the employment to which the QWA relates. "extension agreement" means an agreement to extend the nominal expiry date of aQWA. "file" a QWA or ancillary document means file with the registrar or chief inspector. "filing receipt" means a receipt issued by the registrar or chief inspector. "filing requirements" means the filing requirements in section 200. "new employee", in relation to a QWA, means an employee who signed the QWA before, or at the time of, commencing the employment to which the QWA relates. "nominal expiry date" of a QWA, see section 194. "party" to a QWA or ancillary document means the employer or 52 Section 202 (Additional approval requirements for QWA and ancillary documents) s 188 150 s 189 Industrial Relations employee. "period of operation" of a QWA, see section 195. "QWA" see sections 188 and 207. "QWA date" means the date on which the employer and employee sign the QWA or, if they sign on different dates, the later of the dates. "refusal notice" means a refusal notice issued by the commission under section 206. "relevant or designated award" means the relevant or designated award that is used when applying the no-disadvantage test. "required number of days" means— (a) for anew employee—S days; or (b) for an existing employee—14 days. "termination agreement" see section 198(1). "termination notice" see section 198(3). Proposed QWAs and ancillary documents—interpretation 188.(1) As far as the context permits, a reference in this part toa QWA or ancillary document includes a reference to a proposed QWA or ancillary document. (2) In relation to a proposed QWA or ancillary document, a reference in this part to the employer or employee is a reference to the person who will be the employer or employee when the QWA or ancillary document starts to operate. Functions and powers of commission 189.(1) The commission must, as far as practicable, perform its functions under this part— (a) ina way that furthers the objects of this Act; and (b) without undue delay; and (c) inan informal way. Cm AD AR WN 113172022 25 27 s 190 151 s 192 Industrial Relations (2) Section 320(4)53 does not apply to the performance of the commission's functions under this part. Division 2—General rules about QWAs and ancillary documents QWAs and ancillary documents only have effect as provided by this part 190.(1) A QWA or ancillary document has effect as provided by this part, and not otherwise. (2) In particular— (a) aQWA for a new employee has no effect before a filing receipt is issued for the QWA; and (b) aQWA for an existing employee has no effect before an approval notice is issued for the QWA. Collective QWAs 191.(1) In this part, 2 or more agreements negotiated collectively may be included in the same document if the same employer is a party to all the agreements. (2) The agreements need not be in the same terms. (3) A QWA for a new employee can not be included in the same document as a QWA for an existing employee. Division 3—Making, amending or terminating a QWA Employer and employee may make a QWA 192.(1) A single employer and a single employee, other than an employer and employee mentioned in subsection (3), may make a QWA that deals with matters relating to the relationship between an employer and employee. 53 Section 320 (Basis of decisions of the commission and magistrates) 1519 2325 s 193 152 s 193 Industrial Relations (2) A QWA may be made before the start of employment. (3) The employer of an employee employed in | of the following may not make a QWA with the employee— (a) (b) (c) (d) (e) (f) (g) (h) (i) 0) a department of government or part of a department; a public service office or part of a public service office under the Public Service Act 1996; an agency, authority, commission, corporation, instrumentality, office, or other entity, established under an Act or under State authorisation for a public or State purpose; a part of an entity mentioned in paragraph (c); a registry or other administrative office of a court of the State of any Jurisdiction; the parliamentary service; the Governor's official residence (known as 'Government House') and its associated administrative unit; a court of the State of any jurisdiction; the police service to the extent that it does not include staff members mentioned in the Police Service Administration Act 1990, section 2.5(1)(a);54 another entity, or part of another entity, declared under a regulation for this section. (4) The employer may not make a QWA with an employee who is under 18 years. Matters to be included in QWA 193.(1) The employer must ensure the QWA includes the provisions about discrimination prescribed under a regulation. (2) If the QWA does not in fact include the prescribed provisions about discrimination, the QWA is taken to include the provisions. 54 Police Service Administration Act 1990, section 2.5 (Administration of staff members) oon Dn fF WHY e Oo ee NR = w = ee AR e a eee o won Nw a) NN wh 26 28 s 194 153 s 195 Industrial Relations (3) The employer must ensure the QWA does not include provisions that prohibit or restrict disclosure of details of the QWA by either party to another person. (4) The employer must ensure the QWA includes a dispute resolution procedure. (5) If the QWA does not include a dispute resolution procedure, the QWA is taken to include the model dispute resolution procedure prescribed under a regulation. (6) If a dispute resolution procedure confers powers on the commission to prevent or settle disputes between the parties to the QWA about the application or interpretation of the QWA, the commission may exercise the powers. (7) To avoid doubt, unless power is conferred on the commission to prevent or settle disputes, the commission must not exercise arbitration powers to prevent or settle a dispute between the parties to the QWA. Nominal expiry date of QWA 194.(1) A QWA must specify a date as its nominal expiry date. (2) The date can not be more than 3 years after the QWA date. (3) An employer and employee may make a written agreement (an "extension agreement") that extends the nominal expiry date. (4) The extended date can not be more than 3 years after the QWA date. (5) The extension agreement has no effect unless a filing receipt is issued for the extension agreement at least 21 days before the nominal expiry date that is to be extended. (6) The extension agreement takes effect on the day after an approval notice is issued for the extension agreement. Period of operation of QWA 195.(1) A QWA for a new employee starts operating on the later of the following days— (a) the day after a filing receipt is issued for the QWA; CID NAR WHY 11141720 2326 29 s 196 154 s 196 Industrial Relations (b) the day specified in the QWA as the starting day; (c) the day the employee's employment starts. (2) A QWA for a new employee stops operating at the earlier of the following times— (a) the end of the day when a refusal notice is issued for the QWA; (b) the time when a termination under section 19855 takes effect; (c) the time when another QWA between the employer and employee starts to operate. (3) A QWA for an existing employee starts operating on the later of the following days— (a) the day after an approval notice is issued for the QWA; (b) the day specified in the QWA as the starting day. (4) A QWA for an existing employee stops operating at the earlier of the following times— (a) the time when a termination under section 198 takes effect; (b) the time when another QWA between the employer and employee starts to operate. Bargaining agents 196.(1) An employer or employee may appoint a person to be his or her bargaining agent for the making, approval, amendment or termination of a QWA. Example— An employee may appoint an employee organisation to be the employee's bargaining agent. (2) When the employer proposes the QWA, the employer must inform the employee of his or her right under subsection (1). (3) The appointment of a bargaining agent must be written. (4) An employer or employee must not refuse to recognise a bargaining 55 Section 198 (Terminating a QWA) 2024 26 28 s 197 155 s 198 Industrial Relations agent appointed by the other party if the employer or employee has been given a copy of the bargaining agent's instrument of appointment. (5) An employer or employee must not coerce, or attempt to coerce, the other party— (a) to appoint, or not to appoint, a particular person as a bargaining agent; or (b) to terminate the appointment of a bargaining agent. Amending a QWA 197.(1) An employer and employee may make a written agreement ("amendment agreement") amending a QWA. (2) The amendment agreement takes effect on the later of the following days— (a) the day after an approval notice is issued for the amendment agreement; (b) the day specified in the amendment agreement as the date it takes effect. (3) Section 193 applies to the QWA as amended in the same way as it applied to the QWA before amendment. Terminating a QWA 198.(1) The employer and employee may at any time make a written agreement ("termination agreement") to terminate the QWA. (2) The termination agreement takes effect at the later of the following times— (a) the end of the day on which an approval notice is issued for the termination agreement; (b) the day specified in the termination agreement as the date it takes effect. (3) After the nominal expiry date of a QWA, the employer or employee may file a notice ("termination notice") to terminate the QWA. NYA Dn FW NKR 12 14 16 18 21 23 25 27 29 s 199 156 s 200 Industrial Relations (4) The termination notice takes effect at the end of 28 days after the party filing the termination notice gave notice to the other party of the filing of the termination notice. Division 4—Filing QWAs and ancillary documents Filing QWAs and ancillary documents 199.(1) A QWA or ancillary document ("document") may be filed with the registrar or chief inspector. (2) If the registrar or chief inspector is satisfied that the filing requirements for the document have been met, the registrar or chief inspector must issue a filing receipt to the person who filed it. (3) For a QWA, the registrar or chief inspector may issue a filing receipt only if it is filed within 14 days after the QWA date. (4) If the document is filed with the chief inspector, the chief inspector must immediately give it to the registrar. Filing requirements 200.(1) The filing requirements for a QWA are— (a) the QWA must be signed and dated by each of the parties, and the signatures must be witnessed; and (b) the QWA must be accompanied by a declaration by the employer, declaring— (i) the QWA complies with section 193; and (11) the employer gave the employee a copy of an information statement at least the required number of days before the employee signed the QWA. (2) The chief inspector must prepare an information statement for subsection (1). (3) The information statement must include information about the following matters, but may include other information— (a) entitlements under this Act; 16 18 20 2326 28 s 201 157 s 202 Industrial Relations (b) occupational health and safety law; (c) services provided by the chief inspector; (d) bargaining agents. (4) The filing requirements for an amendment agreement are— (a) the agreement must be signed and dated by each of the parties, and the signatures must be witnessed; and (b) the agreement must be accompanied by a declaration by the (5) The must b (6) 1 must b ing req e signed and witnessed. (7) 1 dated by each of the parties, and the signatures must dated by each of the parties, and the signatures must uirement for a termination notice is the notice must ing req signed and dated by the party filing the notice, and the signature must witnessed. uirement for a termination agreement is the agreement employer, declaring the QWA, as amended, complies with section 193. ing requirement for an extension agreement is the agreement e signed and witnessed. be be be be (8) The employer must provide any other information required under a regulation. Employer's declaration must be accurate 201. An employer must not, in a declaration filed for this part, make a statement that the employer knows, or ought reasonably to know, is false or misleading. Division 5—Approving QWAs and ancillary documents Additional approval requirements for QWA and ancillary documents 202.(1) The additional approval requirements for a QWA are— 2327 s 202 158 s 202 Industrial Relations (a) (b) (c) (d) (e) the QWA complies with section 193;56 and the employee received a copy of the QWA at least the required number of days before signing the QWA; and the employer explained the effect of the QWA to the employee as soon as practicable after the employee first received a copy of it; and the employee consented to making the QWA; and if the employer did not offer a QWA in the same terms to all comparable employees—the employer did not act unfairly or unreasonably in not doing so. (2) The employee may consult with, or seek advice from, anyone about the QWA given to the employee under subsection (1)(b) and the copy is the property of the employee. (3) The additional approval requirements for an amendment agreement are— (a) (b) (c) (d) the QWA, as amended, complies with section 193; and the employee received a copy of the amendment agreement at least 14 days before signing the amendment agreement; and the employer explained the effect of the amendment agreement to the employee as soon as practicable after the employee first received a copy of it; and the employee consented to making the amendment agreement; and if the employer did not offer an amendment agreement in the same terms to all comparable employees who also have a QWA in the same terms—the employer did not act unfairly or unreasonably in not doing so. (4) The explanation of the effect of the QWA or amendment agreement mentioned in subsection (1) or (3) must have been done in a way that was appropriate, having regard to the employee's particular circumstances and needs. 56 Section 193 (Matters to be included in QWA) Sl Ho ~ Nun p Wh 1215 18 2023 262931 s 203 159 s 203 Industrial Relations Example of employees with particular circumstances and needs— 1. Women 2. Persons from a non-English speaking background 3. Young persons 4. Persons with limited literacy or numeracy skills. (5) The additional approval requirement for an extension agreement is that the employee consented to making the extension agreement. (6) The additional approval requirement for a termination agreement is that the employee consented to making the termination agreement. (7) In this section— "comparable employee", fora QWA, means an employee of the employer who does the same kind of work as the employee who is a party to the QWA. Approving QWA 203.(1) The commission must approve a QWA for which a filing receipt has been issued if satisfied — (a) the QWA passes the no-disadvantage test; and (b) the QWA meets the additional approval requirements; and (c) the QWA is not contrary to the public interest. (2) If the commission has concerns about whether the QWA passes the no-disadvantage test, the commission must— (a) notify the employee of the concerns; and (b) the reasons for them. (3) If the commission has concerns about whether the QWA passes the no-disadvantage test, but the concerns are resolved by— (a) a written undertaking given by the employer and accepted by the commission; or (b) other action by the parties; the QWA is taken to pass the no-disadvantage test. Oo eo ND NWA FP WN e Oo eee Wpore 16 1821 23 25 27 29 s 204 160 s 204 Industrial Relations (4) If the commission— (a) is still not satisfied the QWA passes the no-disadvantage test; but (b) is satisfied that approving the QWA is not contrary to the public interest; the QWA is taken to pass the no-disadvantage test. (5) If the commission is not satisfied the QWA meets the additional approval requirements, the commission must refuse to approve the QWA. (6) In considering the public interest, the commission may consider— (a) the relative bargaining power of the parties; and (b) the particular circumstances and needs of low-paid employees and any likely changes in award wages during the period of the QWA; and (c) the particular circumstances and needs of employees including women, persons from a non-English speaking background, young persons, apprentices, trainees and outworkers; and (d) anything else the commission considers relevant to the QWA. Approving amendment agreement 204.(1) The commission must approve an amendment agreement for which a filing receipt has been issued if satisfied — (a) the QWA, as amended, passes the no-disadvantage test; and (b) the agreement meets the additional approval requirements; and (c) the QWA is not contrary to the public interest. (2) If the commission has concerns about whether the QWA, as amended, passes the no-disadvantage test, but the concerns are resolved by— (a) a written undertaking given by the employer and accepted by the commission; or (b) other action by the parties; the QWA, as amended, is taken to pass the no-disadvantage test. eonANADA nA Bw N 111419 212427 29 s 205 161 s 206 Industrial Relations (3) If the commission— (a) is still not satisfied the QWA passes the no-disadvantage test; but (b) is satisfied that approving the QWA is not contrary to the public interest; the QWA, as amended, is taken to pass the no-disadvantage test. (4) If the commission is not satisfied the amendment agreement meets the additional approval requirements, the commission must refuse to approve the amendment agreement. (5) In considering the public interest, the commission may consider— (a) the relative bargaining power of the parties; and (b) the particular circumstances and needs of low-paid employees and any likely changes in award wages during the period of the agreement; and (c) the particular circumstances and needs of employees including women, persons from a non-English speaking background, young persons, apprentices, trainees and outworkers; and (d) anything else the commission considers relevant to the agreement. Approving other ancillary documents 205.(1) This section applies to the following ancillary documents— (a) an extension agreement; (b) a termination agreement; (c) a termination notice. (2) The commission may approve the ancillary document only if satisfied the ancillary document meets the additional approval requirements for the document. Commission must issue approval or refusal notice 206.(1) If the commission approves a QWA or ancillary document, the commission must issue an approval notice to the employer. (2) If the commission refuses to approve a QWA or ancillary document, Oo AND NA BW NY e Oo RP Re WNre re nRnn p a nN 19212428 s 207 162 s 209 Industrial Relations the commission must issue a refusal notice to the employer. (3) If the commission is not satisfied the QWA passes or is taken to pass the no-disadvantage test, the commission must issue a notice to that effect to the employee. (4) In each approval or refusal notice, the commission must identify the relevant or designated award that applies to the QWA. Undertakings taken to be included in QWAs 207. An undertaking accepted by the commission under this division is taken to be included in the QWA. Commission to issue copies of approved QWAs and ancillary documents 208. After a QWA or ancillary document is approved, the commission must issue to the employer a copy of the QWA or ancillary document, as approved. Division 6—No-disadvantage test When does a QWA pass the no-disadvantage test 209.1) A QWA passes the no-disadvantage test if it does not disadvantage the employee in relation to his or her employment conditions. (2) A QWA disadvantages the employee in relation to his or her employment conditions only if the commission considers its approval would result in a reduction in the employee's entitlements and protections. (3) Subsection (2) applies subject to sections 161 and 162.57 (4) If the president considers exceptional circumstances exist, the president may require the registrar to give the commission a report comparing the QWA with the employee's entitlements and protections. 57 Section 161 (Special case—employee eligible for supported wage system) Section 162 (Special case—employee undertaking approved apprenticeship or traineeship) DAN BWP 11 1318 2024 s 210 163 s211 Industrial Relations (5) In this section— "certified agreement" means a certified agreement that, immediately before the initial day of the QWA, binds the employer. "entitlements and protections" means the entitlements and protections under— (a) if there is a certified agreement—the certified agreement; or (b) if there is no certified agreement—a relevant award, a designated award, industrial agreement or an order under chapter 5, part 5358 or (c) chapter 2,59 including as reviewed by a general ruling of the full bench. Special case—employee eligible for supported wage system 210.(1) This section applies if a QWA provides for the payment of wages to an employee who is eligible for the supported wage system at a rate not less than the rate set in accordance with that system for the employee. (2) The agreement does not disadvantage the employee in relation to the employee's employment conditions only because of the reduction of the employee's wages. Special case—employee undertaking approved apprenticeship or traineeship 211.(1) This section applies if— (a) a QWA provides for the payment of wages to an employee undertaking approved training (a "training employee") in a particular occupation or work, or an occupation or work similar to the particular occupation or work (the "work"); and (b) there is a relevant award, designated award or order providing for 58 Chapter 5, part 5 (Wages and employment conditions for apprentices and trainees) 59 Chapter 2 (General employment conditions) ro Omon A NAA Wpo ee 1416 1821 24 26 s 212 164 s 212 Industrial Relations the payment of wages to employees undertaking benchmark training for the work. (2) The agreement is taken to disadvantage the training employee in the employee's employment conditions if the QWA provides for the payment of wages to the employee at a rate less than the rate payable to an employee undertaking the benchmark training (the "benchmark employee") under the relevant award, designated award or order, as adjusted under subsection (3). (3) For subsection (2), the rate payable to a benchmark employee is to be adjusted to take into account the proportionate difference, as decided by the approving authority, between the productive time of a training employee and the productive time of a benchmark employee. (4) If the QWA adopts, as the qualification for a wage level, a criterion decided by the approving authority (the "decided criterion") instead of a specified criterion applying under the relevant award, designated award or order (the "award criterion"), the award is taken, for this section, to have effect as if the decided criterion were substituted for the award criterion. (5) This section does not apply to a trainee bound by— (a) the Training Wage Award—State; (b) the National Training Wage Award 1994. (6) In this section— "benchmark training" means training for an apprentice or trainee in a particular trade, occupation or work if the trade, occupation or work is recognised under an award or under an order made under chapter 5, part 5.60 Deciding designated awards 212.(1) This section applies if— (a) an employer proposes to make a QWA with a person; and (b) there is no relevant award for the person. 60 Chapter 5, part 5 (Wages and employment conditions for apprentices and trainees) COIYDWRW NY 12 14161921 2325 2729 s 213 165 s214 Industrial Relations (2) The employer must apply to the commission for a decision under subsection (3). (3) On application, the commission must decide that an award (regulating employment conditions of employees engaged in a similar kind of work as the person under the QWA) is appropriate for deciding whether the QWA passes the no-disadvantage test. (4) The commission must inform the employer in writing of the commission's decision. Division 7—Effect of QWAs QWA's effect on awards, certified agreements or orders 213.(1) A QWA, during its period of operation, operates to the exclusion of an award, or an order made under chapter 5, part 5, that would otherwise apply to the employee's employment. (2) A certified agreement or a determination under section 149,61 during its period of operation, prevails over a QWA to the extent of any inconsistency unless the certified agreement or determination contains a QWA provision. (3) In this section— "QWA provision" of a certified agreement means a provision that expressly allows a subsequent QWA— (a) to operate to the exclusion of the certified agreement; or (b) to prevail over the certified agreement to a specified extent or to the extent of any inconsistency. Successor employers bound 214.(1) This section applies if— (a) an employer is a party to a QWA; and (b) ata later time a new employer becomes the successor (whether or 61 Section 149 (Arbitration if conciliation unsuccessful) aon HNHn tw Ne 121517 20 23 26 s 215 166 s 218 Industrial Relations not immediate) of the whole or part of the business of the employer who is a party to the QWA. (2) From the later time— (a) the new employer replaces the employer as a party to the QWA; and (b) the previous employer stops being a party to the QWA, to the extent it relates to the whole or part of the business; and (c) areference in this part to the employer is a reference to the new employer, and ceases to refer to the previous employer, to the extent the context relates to the whole or part of the business Parties must not contravene QWA 215. A party toa QWA must not contravene the QWA. Conciliation for agreements 216. The commission has the conciliation powers for a matter arising under this part that it would have under section 2306? if that section applied to the matter instead of to industrial disputes. Industrial action by party to QWA 217. During the period of operation of a QWA before its nominal expiry date, a party to the QWA must not engage in industrial action in relation to the employment to which the QWA relates. Division 8—Penalty provisions and remedies Penalties for contravening this part 218.(1) A magistrate may, by order, impose a penalty on a person who contravenes a penalty provision. 62 Section 230 (Action on industrial dispute) COM NDA UB WY NK e 12 151924 s 219 167 s 220 Industrial Relations (2) The penalty can not be more than— (a) for a corporation—135 penalty units; or (b) otherwise—27 penalty units. (3) An application for an order relating to a QWA or ancillary document may be made by— (a) aparty to the QWA or ancillary document; or (b) an inspector. (4) In this section— "penalty provision" means section 196(2), (3), (4) or (5), 201, 215, 217, 222(1), 223(1) or (2) or 224(1) or (2).63 Damages for contravention of QWA 219.(1) A party to a QWA who suffers loss or damage because of a contravention of the QWA by the other party may recover the amount of the loss or damage in an Industrial Magistrates Court. (2) The action must be brought within 6 years after the date on which the cause of action arose. Compensation to new employee for shortfall in entitlements 220.(1) Subsection (3) applies if a QWA for a new employee stops operating because a refusal notice was issued and the amount worked out under paragraph (a) is less than the amount worked out under paragraph (b)— (a) the total value of the entitlements to which the employee became entitled under the QWA for the period while it was in operation; (b) the total value of the entitlements to which the employee would have been entitled for that period under an award or agreement, if 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) BR WwW NY oO ON DW 1316 1921 23 25 s221 168 s 222 Industrial Relations the QWA had not been made, in relation to the employment to which the QWA relates. (2) Subsection (3) applies if a QWA that has been approved for a new employee includes an undertaking by the employer under section 20364 and the amount worked out under paragraph (a) is less than the amount worked out under paragraph (b)— (a) the total value of the entitlements to which the employee became entitled under the QWA for the period before it was approved; (b) the total value of the entitlements to which the employee would have been entitled for that period if the QWA as filed, had included the employer's undertaking. (3) The employee is entitled to recover the shortfall from the employer in the commission or an Industrial Magistrates Court. Injunctions 221. The commission, on application by a party to a QWA, may grant an injunction requiring a person not to contravene, or to stop contravening, this part. Division 9—General Hindering QWA negotiations 222.(1) A person who is not a party to negotiations for a QWA or ancillary document must not use threats or intimidation with the intention of hindering the negotiations or the making of the QWA or ancillary document. (2) This section does not apply to conduct by or for an employee organisation for the purpose of negotiating a certified agreement, if the conduct is authorised by another provision of this Act. (3) In this section— "party to negotiations" includes a bargaining agent. 64 Section 203 (Approving QWA) 162123 26 28 s 223 169 s 226 Industrial Relations Persons must not apply duress or make false statements in connection with QWA etc. 223.(1) A person must not apply duress to an employer or employee in connection with a QWA or ancillary document. (2) A person must not knowingly make a false or misleading statement to someone else with the intention of persuading the other person to make, or not to make, a QWA or ancillary document. Employer must give copy of documents to employee 224.(1) As soon as practicable after receiving any of the following documents from the commission, registrar or chief inspector, the employer must give a copy of it to the employee— (a) a filing receipt; (b) an approval notice or refusal notice; (c) aQWA or ancillary document, as approved. (2) The employer must give the employee any other document prescribed under a regulation within the period required under the regulation. Intervention not permitted 225. A person other than— (a) aparty toa QWA; or (b) aparty's bargaining agent; or (c) the Minister; can not make submissions, or be heard, in relation to the filing, approval, amendment or termination of a QWA. Reports and advice about development in making QWAs 226.(1) If the Minister asks, the chief executive must prepare and give to the Minister a report about developments in the State in bargaining for the making of QWAs. (2) To enable the chief executive to prepare the report and generally to NNW RW Ne 11 1316 182023 26 s 227 170 s 228 Industrial Relations advise the Minister, the registrar must allow access to approved QWAs and ancillary documents to— (a) the chief executive; or (b) the chief executive's agent. Evidence 227.(1) The registrar may give a certified copy of an approved QWA or ancillary document to a person who is or was a party to the QWA or ancillary document. (2) The registrar may issue a certificate stating— (a) specified QWAs or ancillary documents are the only QWAs or ancillary documents that were filed, before a specified date, in relation to a specified employer and employee; or (b) acopy of a specified approved QWA or ancillary document was issued on a specified day; or (c) a filing receipt, approval notice or refusal notice was issued for a specified QWA or ancillary document on a specified day. (3) The certificate may be given only to a person who is or was a party to the document to which the certificate relates. (4) In all courts and proceedings— (a) a certified copy of an approved QWA or ancillary document is evidence of the QWA or ancillary document; and (b) a certificate issued by the registrar under subsection (2) is evidence of the matters stated in the certificate. (5) A document that purports to be a certified copy, or certificate, mentioned in subsection (4) is taken to be the copy or certificate, unless the contrary is proved. Signature for corporation 228. A QWA or ancillary document may be signed for a corporation by a properly authorised officer of the corporation and need not be made under the corporation's seal. RW Ne CID Nn 1114 16 18 21 23 26 29 s 229 171 s 229 Industrial Relations CHAPTER 7—INDUSTRIAL DISPUTES PART 1—NOTICE OF INDUSTRIAL DISPUTE Notice of industrial dispute 229.(1) Subsection (2) applies if an industrial dispute— (a) exists between— (i) an employer organisation or employer; and (11) an employee organisation or employee; and (b) remains unresolved after the parties have genuinely attempted to settle the dispute. (2) Each party to the dispute must immediately give the registrar notice of the dispute. (3) The notice— (a) may be given by letter, telex, fax, email, or other means of written communication; and (b) must state— (i) the names of the parties to the dispute; and (11) the place where the dispute exists; and (11) the subject matter of the dispute; and (iv) anything else required under the rules. (4) If the Minister is aware an industrial dispute exists, the Minister may notify the commission or registrar of the dispute. Ko OM NIN DA UW BB WwW Se See N aon' Bw a oc ON DWN NN re Oo s 230 172 s 230 Industrial Relations PART 2—ACTION FOR SETTLING INDUSTRIAL 1 DISPUTES 2 Action on industrial dispute 3 230.(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) ifthe 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— (a) the commission may name a party to the dispute as having carriage of the proceedings; and (b) the party named has the carriage of the proceedings accordingly. (6) This section does not affect the operation of an industrial instrument that imposes a duty on a party to the instrument in relation to industrial disputes. Mediation by commission 231. The commission may act as mediator in an industrial cause, whether or not it is within the jurisdiction of the commission— (a) on the request of the parties directly involved in the cause; or (b) if the commissioner is satisfied mediation is desirable in the public interest. Compulsory conference 232.(1) This section applies if the commission, when taking action under section 230, considers that holding a conference is desirable to prevent or settle the industrial dispute. (2) The commission may, by attendance notice, require a person to attend a conference at a stated time and place. (3) A person may be required to attend even though not directly involved in the dispute, if the commission considers the person's presence would be conducive to the prevention or prompt settlement of the dispute. (4) A person required to attend must— (a) attend the conference at the stated time and place; and (b) continue to attend as directed by the commission. Maximum penalty—40 penalty units. (5) The person is entitled to be paid by the State an amount certified by the commission as reasonable compensation for the person's expenses and loss of time. Yawn BB WH 11 13 1619 212426 28 s 233 174 s 233 Industrial Relations (6) At the commission's discretion, a conference may be held— (a) in public or private; or (b) partly in public and partly in private. Enforcing commission's orders 233.(1) The commission may direct an order about an industrial dispute to— (a) an organisation; or (b) aperson in a capacity as an officer or agent of an organisation; or (c) any other person. (2) If an order may be directed to an organisation or a person, the commission may direct the order to the person only after considering whether it would be more appropriate to direct the order to the organisation. (3) An order must— (a) if the order is made against a person—state the person's name; and (b) state a time for complying with the order; and (c) direct any of the following persons to file an affidavit with the registrar within a stated time— (i) the organisation or person; (11) the party to the proceedings who sought the order; (11) any other party to the proceedings the commission considers appropriate. (4) An affidavit under subsection (3)(c) must state whether there has been compliance with the order and, if the order has not been complied with, the steps the person is aware of that have been taken to comply. (5) The commission may extend a time stated under subsection (3)(b) or (c). (6) At the end of the time stated for filing an affidavit, or the time as extended by the commission, the registrar must— w onan fs 1115 18 20 22 2427 29 s 234 175 s 234 Industrial Relations (a) examine all affidavits filed; and (b) ifall affidavits required to be filed have not been filed in the stated time—make all necessary further inquiries; to decide whether there has been substantial compliance with the order. (7) If the registrar is not satisfied that there has been substantial compliance with the order, the registrar must issue a notice under the rules calling on the organisation or person to whom the order was directed to show cause to the full bench at a stated time why the organisation or person should not be dealt with under section 234. (8) In this section— "full bench" means the full bench constituted by the president and 2 or more members. Remedies on show cause 234.(1) If an organisation issued with the notice does not show cause at the stated time, the full bench may— (a) impose on the organisation a penalty of not more than 1 000 penalty units; or (b) amend an award or certified agreement to which the organisation is a party; or (c) ifthe organisation is an employee organisation—suspend the date of operation of a wage increase that would otherwise be payable to members of the organisation or to a class of the members; or (d) change the organisation's rules to exclude from eligibility for membership persons belonging to a particular class or section of the membership; or (e) make the orders it considers appropriate— (i) _ restricting the use of the organisation's property; or (11) controlling the organisation's property to ensure the restrictions are complied with; or (f) suspend the organisation's registration for a stated period; or (g) deregister the organisation; or COIDMNA FB WH e Oo ee NR 15 17 19 212427 29 31 s 235 176 s 235 Industrial Relations (h) make the other orders it considers appropriate— (i) to secure the organisation's compliance with the commission's order; or (11) to punish the organisation for not complying with the commission's order; or (i) order the organisation to pay the costs of the show cause proceedings. (2) If a person issued with the notice does not show cause at the stated time, the full bench may— (a) impose on the person a fine of not more than 40 penalty units; or (b) make the other orders it considers appropriate— (i) to secure the person's compliance with the commission's order; or (11) to punish the person for not complying with the commission's order; or (c) order the person to pay the costs of the show cause proceedings. (3) All persons concerned must comply with an order or direction made or given by the full bench. (4) In this section— "organisation" includes a branch of the organisation. "stated time" means at the time stated in the notice to show cause under section 233(7), or at a time to which the proceedings are adjourned. PART 3—BALLOTS Secret ballot on strike action 235.(1) This section applies if— (a) astrike happens; or (b) the commission, or a person applying to the commission, CO AD AHR WY eS eK Oo ion' wn Ree ns e a ile' on NO Fe Co Oo NN Ne 26 s 236 177 s 236 Industrial Relations considers a strike is likely to happen. (2) The commission may act under subsection (4)— (a) of its own initiative; or (b) on application by an employer or employer organisation; or (c) on application— (i) by or on behalf of 5% of the employees engaged in or on the calling, enterprise, establishment or project concerned; or (ii) by 250 employees; whichever is less, but being, in any case, at least 4. (3) The commission must act under subsection (4)— (a) on application by an employee organisation; or (b) if directed by the Minister. (4) To find out the number of employees or members who favour the strike, the commission may direct the registrar to conduct a secret ballot66 of— (a) the employees engaged in or on the calling, enterprise, establishment or project concerned; or (b) the members of an employee organisation engaged in or on the calling, enterprise, establishment or project concerned. (5) The registrar must publish the result of the secret ballot in a newspaper circulating in the locality concerned. Effect of ballot adverse to strike 236.(1) Subsection (2) applies if— (a) when a secret ballot was conducted under section 235(4)— (i) astrike exists; or (11) a strike appeared likely to happen, and a strike happens for the same issue within | month after the ballot result is 66 See section 285 (Conducting a secret ballot) Cm NID WwW BR WN 111417 19 21 2327 s 237 178 s 237 Industrial Relations published under section 235(5); and (b) the ballot shows that a majority of employees or members who voted in the ballot is not in favour of the strike. (2) The registrar must advertise a date (the "end date"), not more than 7 days after the date of publication, on or before which the employees or members who are on strike must discontinue the strike. (3) The advertisement— (a) must be in a newspaper circulating in the locality concerned; and (b) may be included in the advertisement published under section 235(5). (4) The employees or members must discontinue the strike on or before the end date. (5) An employee or member who does not is taken to have terminated, from the end date, the employment in which the employee or member was engaged when the strike commenced, unless the employee or member has a reasonable excuse. (6) Disagreement by a person with the result of the ballot is not a reasonable excuse. PART 4—INDUSTRIAL ACTION Indemnity against agent's unauthorised actions 237. An organisation or association of persons is not liable for anything said or done by its agent, during or in connection with industrial action, if— (a) the agent acted without the knowledge of the governing body of the organisation or association; and (b) the governing body could not, by the exercise of reasonable diligence, have prevented the action. 22 24 26 s 238 179 s 238 Industrial Relations Payments for strikes can not be compelled 238.(1) An employer may pay, or refuse to pay, an employee for a period when the employee engages in a strike. (2) An employee must not organise or engage in, or threaten to organise or engage in, a strike against an employer with intent to coerce the employer to make the payment. (3) An employee organisation, or an officer, member or employee of the organisation, must not organise or engage in, or threaten to organise or engage in, a strike against an employer with intent to coerce the employer to make the payment. (4) For subsection (3), action is taken to have been done by an organisation if it is done by— (a) the organisation's management committee; or (b) an officer, employee or agent of the organisation acting in that capacity; or (c) amember or group of members of the organisation acting under the organisation's rules; or (d) a member of the organisation, who performs the function of dealing with an employer on behalf of the member and other members of the organisation, acting in that capacity. (5) Subsection (4)(c) and (d) does not apply if any of the following persons has taken reasonable steps to prevent the action— (a) the organisation's management committee; (b) aperson authorised by the committee; (c) an officer of the organisation. (6) A contravention of subsection (2) or (3) is not an offence.67 (7) In this section— "strike" does not include the failure to perform work in excess of that required under a relevant industrial instrument. 67 See section 239 for the orders the commission may make for a contravention of this section. ar Aun WN 12 15 17 1922 242629 s 239 180 s 240 Industrial Relations Orders the commission may make 239.(1) An application may be made to the commission for orders under this section for a contravention of section 238. (2) The application may be made by— (a) the Minister; or (b) aperson who has an interest in the matter; or (c) fora contravention of section 238(2) or (3)—the employer; or (d) someone else prescribed under a regulation. (3) A regulation prescribing persons for subsection (2)(d) may limit its application to stated circumstances. (4) The commission may, if it considers it appropriate in all the circumstances, make | or more of the following orders— (a) an order imposing on a person who contravenes section 238 a penalty of not more than 135 penalty units; (b) an order requiring a person who contravenes section 238(2) or (3) to pay an employer compensation of the amount the commission considers appropriate; (c) an injunctive order (including an interim injunction), and any other order, the commission considers necessary to stop the contravention or remedy its effects; (d) another consequential order. Commission not to deal with claims for payments for strikes 240.(1) The commission can not deal with a claim for the making of a payment to employees for a period when the employees engage in a strike under section 238. (2) Subsection (1) applies to a claim for a period before or after— (a) the making of the claim; or (b) the commencement of this section. mona nA fF WN 12 14 16192427 s241 181 s 243 Industrial Relations Right to refuse to work if imminent health or safety risk 241. Nothing in this Act prevents an employee from refusing to perform work if— (a) the refusal is based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and (b) the employee does not unreasonably contravene a direction of his or her employer to perform other available work (whether at the same or another workplace) that is safe and appropriate for the employee to perform. CHAPTER 8—INDUSTRIAL TRIBUNALS AND REGISTRY PART 1—INDUSTRIAL COURT Division 1—Industrial Court of Queensland Continuance 242. The Industrial Court, as formerly established as a superior court of record in Queensland, is continued in existence as the Industrial Court of Queensland (the "court"). Division 2—President President of the court 243.(1) The Governor in Council may appoint a person as president of the court by commission. (2) The person must be a person who— (a) has been— Oo onan ns Wn 11 1621 23 5 244 182 s 245 Industrial Relations (b) (i) a judge of the Supreme or District Court; or (ii) is a lawyer of at least 5 years standing; and has skills and experience in industrial relations. (3) The person can not be— a member of the Executive Council or Legislative Assembly; or a director of a corporation engaged in a calling; or an auditor of a corporation engaged in a calling or of a business; or a person who participates in any capacity in the management of — (i) acorporation engaged in a calling; or (11) a business. (4) The appointment of the president is on a full-time basis. When a judge is appointed as president 244.(1) The appointment of, or service by, a judge of the Supreme or District Court as president does not affect— (a) (b) the judge's tenure of office as a judge; or the judge's rank, title, status, precedence, salary, annual or other allowances or other rights or privileges as the holder of his or her office as a judge. (2) The judge's service as president is taken to be service as a judge for all purposes. When president holds office 245.(1) The president holds office until— (a) (b) (c) the president turns 70; or the president resigns by signed notice given to the Governor; or the president becomes a member of the Executive Council or Legislative Assembly; or Oo ANI HD Hn Ff W NY Se Be NF oO 15 1821 2327 s 246 183 s 247 Industrial Relations (d) the president becomes a person mentioned in section 243(3)(b) to (d), other than with the Minister's written approval; or (e) the president is removed from office under subsection (2). (2) The Governor may remove the president from office on an address to the Legislative Assembly for— (a) mental or physical incapacity; or (b) misbehaviour. (3) If the president stops holding office because of subsection (1)(a) or (b) while hearing a matter, the Governor in Council may, without reappointing the person as president, continue the person in office for the time necessary to enable the hearing to be completed. (4) The person continued in office may exercise the jurisdiction and powers of the court necessary or convenient for the hearing to be completed. Acting president of the court 246.(1) This section applies if the president temporarily can not perform the functions of office. (2) The Governor in Council may appoint the vice president to act as president by industrial gazette notice. (3) A person who has acted as president may attend sittings of the court for the purpose of giving a decision in, or otherwise completing, proceedings that were heard by the person while acting as president. (4) The person's decision is taken to be the president's decision in the proceedings. Division 3—Jurisdiction and powers of the court Constitution of court 247. The court is constituted by the president sitting alone. FBPOoUonm AD HN WNL ee ion' wn 16 18 2023 26 s 248 184 s 249 Industrial Relations Court's jurisdiction 248.(1) The court may— (a) perform all functions and exercise all powers prescribed for the court by this or another Act; and (b) hear and decide cases stated to it by the commission; and (c) hear and decide an offence against this Act, other than an offence for which jurisdiction is expressly conferred on a magistrate; and (d) hear and decide appeals from an industrial magistrate's decision in proceedings for— (i) an offence against this Act; or (11) recovery of damages, or other amounts, under this Act; and (e) exercise the jurisdiction and powers of the Supreme Court to ensure, by prerogative order or other appropriate process— (i) the commission and magistrates exercise their jurisdictions according to law; and (11) the commission and magistrates do not exceed their jurisdictions. (2) In proceedings, the court may— (a) (b) make the decisions it considers appropriate, irrespective of specific relief sought by a party; and give directions about the hearing of a matter. (3) The court's jurisdiction is not limited, by implication, by a provision of this or another Act. Court's interpretation 249. The court's interpretation of a provision of this Act, an industrial instrument or permit binds— (a) (b) the commission; and magistrates; and Oo eo ND UN BW WN eS eK Oo lon' wn Ree ns Ree na Co Ne cow N pan NN wh 26 28 s 250 185 s 252 Industrial Relations (c) organisations and persons who are subject to this Act, or bound by the industrial instrument or permit. Court may refuse to proceed 250.(1) This section applies if proceedings before the court relate to an industrial instrument that exists or is sought in the proceedings. (2) The court may refuse to hear and decide the proceedings if any of the employees who are, or would be, bound by the instrument are— (a) involved in an industrial dispute; or (b) contravening this Act or a decision. (3) Subsection (2) applies whether or not the employees are employees whose employment may be affected by the decision. Contempt of court 251.(1) The court has all the protection, powers, jurisdiction and authority of the Supreme Court for a contempt of court. (2) The court must comply with the Uniform Civil Procedure Rules relating to contempt of court, with necessary changes. (3) The registrar or another officer of the court may apply to the court for an order that a person be committed to prison for contempt of court. (4) The court's jurisdiction to punish a contempt of the court may be exercised on the president's own initiative. (5) The court has jurisdiction to punish an act or omission as a contempt of the court, although a penalty is prescribed for the act or omission. Division 4—President's annual report President's annual report 252.(1) As soon as practicable after the end of each financial year, the president must prepare and give to the Minister a report for the year on— (a) the operation of this Act; and FBO © OND WB Ww ee 14 16 18 20 22 26 s 253 186 s 253 Industrial Relations (b) in particular, the working of the court, commission and registry. (2) The report must also contain summaries of significant decisions and interpretations about awards, certified agreements, industrial agreements, QWAs and ancillary documents. (3) The Minister must table a copy of the report in the Legislative Assembly within 14 days after the Minister receives it. Division 5—President's advisory committee Advisory committee established 253.(1) The president's advisory committee (the "advisory committee") is established. (2) The advisory committee consists of— (a) the president; and (b) the commissioner administrator; and (c) the chief executive or the chief executive's nominee; and (d) 2 persons representing employee organisations, nominated by the organisations; and (e) 2 persons representing employer organisations, nominated by the organisations; and (f) 2 persons who have knowledge of, or experience in, industrial relations; and (g) 1 person representing the Anti-Discrimination Commission. (3) The Minister must appoint the members under subsection (2)(d) to (f). (4) The Minister may appoint the members only after consulting with the president. Dun FBWN 11316 18 20 23 25 s 254 187 s 256 Industrial Relations Functions of advisory committee 254. The president's advisory committee's functions are to discuss matters relating to the accessibility, efficiency, effectiveness, flexibility, operation, and responsiveness of the court and commission. PART 2—INDUSTRIAL RELATIONS COMMISSION Division 1—Continuance and composition Continuance 255. The Queensland Industrial Relations Commission (the "commission"), as formerly established as a court of record, is continued in existence. Composition 256.(1) The following persons are members of the commission ("members")— (a) the president; (b) the vice president, commissioner administrator and at least 6 other industrial commissioners ("commissioners"). (2) The full bench of the commission ("full bench") is constituted by— (a) for chapter 12, part 1668 or for the hearing of an appeal—the president and 2 or more commissioners; or (b) otherwise—3 or more members. (3) The commission is constituted by a commissioner sitting alone. (4) More than | full bench or commission may sit at the same time. 68 Chapter 12, part 16 (Deregistration) BRwWN 13 16 19 21 s 257 188 s 259 Industrial Relations (5) The commission's jurisdiction, or existence, is not affected by a vacancy in any office of the commission. Division 2—Membership of the commission President of the commission 257. The president of the court is also the president of the commission. Vice president of the commission 258.(1) The Governor in Council may appoint a person as vice president of the commission— (a) ifthe person is not already a commissioner—by commission; or (b) if the person is already a commissioner—by gazette notice. (2) The person must be a person who— (a) isa lawyer of at least 5 years standing; (b) has the experience, qualifications and standing mentioned in section 259(2). Commissioners 259.(1) The Governor in Council may appoint a person as a commissioner by commission. (2) The person must have— (a) ahigh level of experience in— (i) business or industry; or (11) an organisation or employer association or a State peak council; or (11) a department of government; or (iv) an agency, authority, commission, corporation, instrumentality, office, or other entity, established under an Act or under State authorisation for a public or State Ne 17 1922 26 s 260 189 s 260 Industrial Relations purpose; or (b) suitable experience, qualifications and standing in the community to be appointed as a commissioner. (3) The Governor in Council may appoint a commissioner as the commissioner administrator by gazette notice. (4) The appointment as commissioner administrator is to be for a term, of at least 5 years, stated in the notice. (5) The commissioner administrator continues to be a commissioner, and is to sit as, and exercise the powers of, a commissioner. (6) The commissioner administrator holds office as commissioner administrator while the person holds office as a commissioner or until— (a) the end of the person's term of appointment; or (b) the person is appointed as the president; or (c) the person resigns as commissioner administrator by signed notice given to the Governor. (7) The commissioner administrator may resign office as commissioner administrator without resigning office as a commissioner. When commissioner holds office 260.(1) A commissioner holds office until— (a) the commissioner is appointed as the president; or (b) the commissioner turns 70; or (c) the commissioner resigns by signed notice given to the Governor; or (d) the commissioner becomes a member of the Executive Council or Legislative Assembly; or (e) the commissioner becomes a person mentioned in section 262(b), other than with the Minister's written approval; or (f) the commissioner is removed from office under section 263. (2) However, if a commissioner stops holding office because of subsection (1)(b) or (c) while investigating or hearing a matter, the Be Be Bee ON FS CO IAD WH WY Ree ns Ree na 1921 23 25 27 30 s 261 190 s 263 Industrial Relations Governor in Council may, without reappointing the person as a commissioner, continue the person in office for the time necessary to enable the investigation or hearing to be completed. (3) The person continued in office may exercise the jurisdiction and powers of the commission necessary or convenient for the investigation or hearing to be completed. Acting vice president, commissioner administrator or other commissioner 261.(1) This section applies if the vice president, commissioner administrator or another commissioner temporarily can not perform the functions of office. (2) The Governor in Council may appoint a person to act as the vice president, commissioner administrator or other commissioner by industrial gazette notice. Restrictions on appointment 262. The following persons can not be appointed as commissioners— (a) amember of the Executive Council or Legislative Assembly; (b) a person who— (i) acts as director of a corporation engaged in a calling; or (11) acts as auditor of a corporation engaged in a calling or of a business; or (11) participates in any capacity in the management of a corporation engaged in a calling; or (iv) participates in any capacity in the management of a business. Removal of commissioners from office 263. The Governor may remove a commissioner from office, on an address to the Legislative Assembly, for— DAN WNHE e POO OA 14 161821 23 27 s 264 191 s 265 Industrial Relations (a) mental or physical incapacity; or (b) misbehaviour. Division 3—The commission Administrative responsibilities for the commission and registry 264.(1) In addition to performing the functions of a member, the president is responsible for the administration of the commission and registry, and the orderly and expeditious exercise of the commission's jurisdiction and powers. (2) The president has the power to do all things necessary or convenient to be done to perform responsibilities under subsection (1). (3) In addition to performing the functions of a member, the vice president must assist the president to perform the president's functions. (4) In addition to performing the functions of a member, the commissioner administrator is responsible to the president for the administration of the commission and registry, and the orderly and expeditious exercise of the commission's jurisdiction and powers. (5) The commissioner administrator has the power to do all things necessary or convenient to be done to perform responsibilities under subsection (4). Commission's jurisdiction 265.(1) The commission may hear and decide the following matters— (a) all questions of law or fact brought before it or that it considers expedient to hear and decide for the regulation of a calling; (b) all questions— (i) arising out of an industrial matter; or (11) involving deciding the rights and duties of a person in relation to an industrial matter; or (11) it considers expedient to hear and decide about an industrial matter; 21 23 25 27 29 s 265 192 s 265 Industrial Relations (c) an industrial dispute, referred to the commission by a member who has held a conference under this Act at which no agreement has been reached; (d) all appeals properly made to it under this or another Act; (e) all matters committed to the commission by this or another Act. (2) The commission may regulate a calling by an award— (a) on application by an organisation, an employer, or 20 employees (who are not members of an employee organisation and not covered by an award) in a calling; or (b) on application by the Minister; or (c) of its own initiative. (3) The commission may hold an inquiry into or about an industrial matter and to report the result of the inquiry, and make recommendations, to the Minister— (a) on application by an interested person; or (b) by direction of the Minister; or (c) of its own initiative. (4) The commission may consolidate into 1 award all awards binding or affecting an employer or class of employer in a calling, or the members of an organisation employed by the same employer or class of employer— (a) on application by an organisation or an employer; or (b) by direction of the Minister. (5) When exercising power under subsection (4), the commission may make the amendments of the award it considers expedient to make to effect the consolidation. (6) No provision of this or another Act limits, by implication, the commission's jurisdiction. (7) In this section— "class" includes a section of a class. CONnd HD HW FF WNH eS eK Oo eli andilend RwWN Se Se eR nn wm Nee ome) NN Ne NNN n BW NN Na NN 'io @ s 266 193 s 269 Industrial Relations Commission to prevent discrimination in employment 266. In exercising a power, the commission must not allow discrimination in employment. Commission's jurisdiction is exclusive 267. The original and appellate jurisdiction conferred on the commission by this Act is exclusive of the jurisdiction of the Supreme Court or another court or tribunal, unless otherwise prescribed under this Act. Commission may refuse to proceed 268.(1) This section applies if proceedings before the commission relate to an industrial instrument that exists or is sought in the proceedings. (2) The commission may refuse to hear and decide the proceedings if any of the employees who are, or would be, bound by the instrument are— (a) involved in an industrial dispute; or (b) contravening this Act or a decision; or (3) Subsection (2) applies whether or not the employees are employees whose employment may be affected by the decision of the proceedings. President or commissioner administrator to consider efficiencies that may be achieved by allocating matters to dual commissioners 269. When administering the commission, the president and the commissioner administrator must consider— (a) the improved efficiency of the commission; and (b) in particular, the improved cooperation between the commission and the Australian commission; that may be achieved by the commission's functions and powers being performed and exercised, for a particular matter, by a dual commissioner. w NAN 12 14 16 18 20 23 25 s 270 194 s 273 Industrial Relations Reallocation of commission's work 270. The president or commissioner administrator may reallocate the matter of proceedings before a commission constituted by | or more of the members to a commission constituted by— (a) the same member or members together with another member or other members; or (b) a different member or different members. Commission may continue to hear reallocated work without re-hearing evidence 271. The commission to which the matter is reallocated may continue to hear and decide the matter, without re-hearing evidence given before the reallocation. Decision of full bench 272. A decision of the full bench is the decision of the majority of its members. Division 4—Commission's functions and powers Commission's functions 273.(1) The commission's functions include the following— (a) establishing and maintaining a system of non-discriminatory awards that provide fair wages and employment conditions; (b) supervising the bargaining of agreements; (c) certifying agreements; (d) approving QWAs; (e) resolving disputes by conciliation of industrial matters and, if necessary, by arbitration or making an order; (f) making awards; ay Dw BwWN 1115 18 20 2225 s 274 195 s 274 Industrial Relations (g) resolving disputes in the negotiation of agreements— (i) by conciliation; or (11) by arbitration, including by the making of decisions; (h) resolving disputes over union coverage by making representation orders; (i) resolving other disputes that threaten to harm the community or the economy by conciliation and, if necessary, by arbitration; G) dealing with— (i) applications for orders under section 278;69 or (11) claims relating to dismissals. (2) The commission must perform its functions in a way that— (a) furthers the objects of this Act; and (b) avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under this Act. (3) In this section— "occupational superannuation" includes an amount equal to the return that would have accrued in relation to the occupational superannuation had it been properly paid to an approved superannuation fund. General powers 274.(1) The commission has the power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions. (2) Without limiting subsection (1), the commission in proceedings may— (a) give directions about the hearing of a matter; or (b) make a decision it considers appropriate, irrespective of the specific relief sought by a party; or 69 Section 278 (Power to recover unpaid wages and superannuation contribution etc.) Co OM NXID WAR WN 1114 172124 27 s 275 196 s 275 Industrial Relations (c) make an order it considers appropriate. (3) The commission may, by general order or for a particular case, delegate to the registrar— (a) the working out of a decision of the commission; or (b) a function relating to the decision, including, for example— (i) _ the giving of directions; or (11) the making of orders; or (11) the preparation of rosters and schedules; or (iv) a similar function it considers appropriate. (4) The full bench may, to assist it in the appropriate resolution of proceedings— (a) refer the whole or part of a question or matter before it to the commission— (i) for investigation and report to the full bench; or (11) for the other action it decides; (b) direct 1 or more of its members to carry out a specified investigation or inspection and to report on it to the full bench. (5) A member to whom a reference is made or a direction is given must comply with the reference or direction. Power to declare persons to be employees 275.(1) The full bench may, on application by an organisation, a State peak council or the Minister, make an order declaring a class of persons who perform work in an industry under a contract for services to be employees. (2) The full bench may make an order only if it considers the class of persons would be more appropriately regarded as employees. (3) In considering whether to make an order, the commission may consider— (a) the relative bargaining power of the class of persons; or reo OO ON DN FP WN ee ee wn Se nan & Ree na ee \o 2224 26 28 s 276 197 s 276 Industrial Relations (b) the economic dependency of the class of persons on the contract; or (c) the particular circumstances and needs of low-paid employees; or (d) whether the contract is designed to, or does, avoid the provisions of an industrial instrument; or (e) the particular circumstances and needs of employees including women, persons from a non-English speaking background, young persons and outworkers; or (f) the consequences of not making an order for the class of persons. (4) In this section— "contract" includes— (a) an arrangement or understanding; and (b) acollateral contract relating to a contract. "industrial instrument" includes an award or agreement made under the Commonwealth Act. Power to amend or void contracts 276.(1) On application, the commission may amend or declare void (wholly or partly) a contract if it considers— (a) the contract is— (i) a contract of services that is not covered by an industrial instrument; or (11) acontract for services; and (b) the contract is an unfair contract. (2) In deciding whether to amend or declare void a contract, or part of a contract, the commission may consider— (a) the relative bargaining power of the parties to the contract and, if applicable, anyone acting for the parties; or (b) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, a party to the contract; or OO OND NAP W NE 1113 15 18 21 23 25 27 29 s 276 198 s 276 Industrial Relations (c) (d) an industrial instrument or this Act; or anything else the commission considers relevant. (3) An application may be made by— (a) (b) (c) a party to the contract; or an inspector, for the party required under the contract to provide services; or an organisation of employees or employers of which a party is, or has applied to become, a member, if it is acting with the party's written consent. (4) The commission may consider a contract to be an unfair contract if it considers the contract— (a) (b) was an unfair contract when it was entered into; or became an unfair contract after it was entered into because of the conduct of the parties, or a variation to the contract or for any other reason it considers sufficient. (5) The commission may make an order it considers appropriate about payment of an amount for a contract amended or declared void. (6) A person can not make an application under this section if— (a) (b) an application has been made under section 7470 for the same matter; or the person is someone to whom chapter 3, part 1 does not apply under section 72.71 (7) In this section— "contract" includes— (a) (b) an arrangement or understanding; and a collateral contract relating to a contract. "industrial instrument" includes an award or agreement made under the 70 Section 74 (Application for reinstatement) 71 Chapter 3, part 1 (Exclusions) Section 72 (Who this chapter does not apply to) Se ee Nu KF Oo OMAN AWN fF W NY See On pw Ree na Co NR Ne) NN Ne NN KR Ww NON NY NY nN nw s277 199 s277 Industrial Relations Commonwealth Act. "unfair contract" means a contract that— (a) (b) (c) (d) is harsh, unconscionable or unfair; or is against the public interest; or provides, or has provided, a total remuneration less than that which a person performing the work as an employee would receive under an industrial instrument or this Act; or is designed to, or does, avoid the provisions of an industrial instrument. Power to grant injunctions 277.(1) The commission may, on application, grant the injunctive order it considers appropriate— (a) (b) to compel compliance with an industrial instrument, a permit or this Act; or to restrain a contravention, or continuance of a contravention, of an industrial instrument, a permit or this Act. (2) An application may be made by— (a) (b) (c) (d) (e) a party to industrial action or an industrial dispute; or a person who is, or is likely to be, directly affected by industrial action or an industrial dispute; or the registrar; or the chief inspector; or an inspector. (3) An application by an organisation must be under the organisation's seal and signed by the organisation's president and secretary. (4) The commission may direct the injunctive order to— (a) the officers or members of an organisation generally; or (b) particular officers or members of an organisation; or (c) a particular employer; or Cm ADDN FR WN 12 14 16 18 20 2225 2729 s 278 200 s 278 Industrial Relations (d) a particular employee. (5) A person to whom the order is directed must comply with the order after the person has received notice of it. (6) The commission may decide the form of the notice and the way the order is to be served. (7) Without limiting subsection (6), the commission may order substituted service of the order by advertisement or otherwise. (8) If the order is directed to an organisation, the organisation and each officer of the organisation must ensure the officers and members of the organisation comply with the order. (9) If the officers or members, or a substantial number of the officers or members, of an organisation to whom an injunctive order is directed, contravene the order, the organisation and each officer of the organisation commit an offence, namely, the offence of failing to ensure the organisation complies with the order. (10) It is a defence to a prosecution for an offence against subsection (9) for the organisation or officer to prove that it, or the officer, took all reasonable steps to ensure the officers or members complied with the order. (11) The commission can not grant an injunctive order for a proposed contravention of section 73, 83, 87, 88 or 89.72 (12) In this section— "injunctive order" means an order in the nature of a mandatory or restrictive injunction. "organisation" includes a branch of the organisation. Power to recover unpaid wages and superannuation contribution etc. 278.(1) An application may be made to the commission for an order for payment of— 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) 27 s 278 201 s 278 Industrial Relations (a) (b) (c) (d) an employee's unpaid wages; or an apprentice's unpaid tool allowance under section 138; or remuneration lost by an apprentice or trainee because the employer has contravened section 391(2);73 or contributions to the approved superannuation fund payable for an eligible employee that are unpaid. (2) An application can not be made to the commission if the total amount claimed under subsection (1)(a), (b), (c) or (d) is more than $20 000.74 (3) The application may be made by— (a) for a claim for occupational superannuation—an employee who is an eligible employee on whose behalf an employer is required to contribute to an approved superannuation fund; or for any other claim—an employee; or an employee organisation of which the eligible employee or employee is a member, acting for the employee; or a person authorised by the eligible employee or employee to make the application, acting for the employee; or an inspector. (4) The application must be made within 6 years after the amount claimed became payable. (5) However, for an apprentice or trainee, the application can not relate to wages payable more than 4 years before the commencement of this section. (6) The president may, either before or after the start of a hearing, remit the application to a magistrate if the president considers the application could be more conveniently heard by a magistrate, having regard to— (a) (b) the difficulty or expense of producing witnesses; or another good and sufficient reason, for example, cost. 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. ort An pw nw 1115 17 20 22 2427 s 278 202 s 278 Industrial Relations (7) A magistrate may hear and decide the application as if it had been brought before the commission, and the magistrate's decision is taken to be a decision of the commission. (8) On hearing the application,75 the commission or magistrate— (a) must order the employer to pay the employee— (i) the amount the commission or magistrate finds to be payable and unpaid to the employee within the 6 years before the date of the application; and (11) an amount the commission or magistrate considers appropriate, based on the return that would have accrued in relation to the contributions had it been properly paid to the approved superannuation fund; and (b) may make an order for the payment despite an express or implied provision of an agreement to the contrary; and (c) may order the payment to be made on the terms the commission or magistrate considers appropriate. (9) For an order about an unpaid contribution, the order must require the contribution to be paid to— (a) if the employee is employed by the employer—the approved superannuation fund; or (b) ifthe employee is no longer employed by the employer— (i) the approved superannuation fund; or (11) a complying superannuation fund; or (111) a superannuation fund nominated by the employee; or (iv) an eligible rollover fund; or (v) if the amount is less than the amount of total benefits that may revert to an employee under the Superannuation Industry (Supervision) Act 1993 (Cwlth)—the employee. (10) The contribution must be paid into the unclaimed moneys fund, if a 75 See section 320 (Basis of decisions of the commission and magistrates) for the basis of decisions of the commission. CAD WD Pp WHH 12 14 16 18 20 222427 s 279 203 s 279 Industrial Relations former employee in relation to whom an order is made— (a) can not be located after reasonable inquiry; or (b) does not nominate a superannuation fund for the purpose of the order, if required by the order to do so. (11) A person can not make an application under this section if an application has been made under section 399 or 40876 for the same matter. (12) In this section— "occupational superannuation" includes an amount equal to the return that would have accrued in relation to the occupational superannuation had it been properly paid to an approved superannuation fund. Orders about representation rights of employee organisations 279.(1) The full bench may, on application by an organisation, an employer or the Minister, make the following orders about a demarcation dispute— (a) an order that an employee organisation has the right, to the exclusion of another organisation, to represent a particular group of employees who are eligible for membership of the organisation; (b) an order that an employee organisation that does not have the right to represent a particular group of employees has the right; (c) an order that an employee organisation does not have the right to represent a particular group of employees who are eligible for membership of the organisation. (2) The full bench may make an order only if— (a) the full bench considers conciliation proceedings would not help in the prevention or settlement of the dispute; or (b) conciliation proceedings for the dispute are completed, but the dispute has not been fully settled. 76 Section 399 (Recovery of unpaid wages etc.) Section 408 (Recovery of unpaid superannuation contribution) COmN awn RW WN e 131618 20 2226 28 s 279 204 s 279 Industrial Relations (3) The full bench may make an order only if satisfied — (a) (b) the conduct, or threatened conduct, of an organisation to which the order would relate, or of an officer, member or employee of the organisation is— (i) preventing, obstructing or restricting the performance of work; or (11) harming an employer's business; or the consequences mentioned in paragraph (a)— (i) have stopped, but are likely to recur as a result of the conduct or threatened conduct; or (i1) are imminent as a result of the conduct or threatened conduct. (4) In considering whether to make an order, the full bench must consider— (a) (b) (c) (d) (e) (f) (g) the wishes of employees who would be affected by the order; and the effect of an order on the operations (including operating costs, work practices, efficiency and productivity) of the employees' employer; and whether it should consult with appropriate State peak councils or organisations; and the ability of the organisation to adequately represent the employees' interests; and an agreement or understanding that the full bench becomes aware of that deals with an employee organisation's right to represent a particular group of employees; and the consequences of not making an order for the employees, employer or organisation; and another order made by the commission that it considers relevant.77 (5) An order may be subject to conditions. 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 order.78 (7) The full bench may, on application by the Minister or a person or organisation affected by an order, make the further order it considers appropriate to ensure the Act is complied with. (8) In this section— "right to represent" a particular group of employees means the right to represent the industrial interests of the particular group of employees. Procedures for reopening 280.(1) Proceedings may be reopened, on application by a person under subsection (2), by— (a) for proceedings taken before the full bench—the full bench; or (b) otherwise—the commission. (2) An application for reopening of proceedings may be made by— (a) the Minister; or (b) a party to the proceedings; or (c) for proceedings that are not about a certified agreement or QWA— (i) an organisation whose members are bound by, or claim to be affected by or dissatisfied with, the proceedings; or (11) a person who is bound by or claims to be affected by or dissatisfied with the proceedings, and who satisfies the commission that the person is not an officer of, or acting for, an eligible association. (3) If the commission reopens proceedings, it may— (a) revoke or amend a decision or recommendation made by it; and (b) make the decision or recommendation it considers appropriate. 78 As to the commission's power to enforce its order, see section 233 (Enforcing commission's orders). CI' DA npPwW HH 11 131518 20 2224 26 s 281 206 s 281 Industrial Relations (4) If a recommendation of the commission has been acted on by the Governor in Council and the commission later revokes or amends the recommendation, the Governor in Council may— (a) cancel the action taken on the recommendation to accord with the commission's revocation or amendment; or (b) amend the action to accord with the commission's revocation or amendment. (5) Failure to give notice to a person of the proceedings, or any part of the proceedings, leading to the making by the commission of a decision binding on the person— (a) does not invalidate or otherwise affect the decision; but (b) if the person is one on whose application the commission may exercise its powers, the person's failure to participate in the proceedings because of the absence of notice does not affect the person's application for reopening of proceedings. (6) If the commission grants an application for reopening, it may give the retrospective operation to its decision made in the reopened proceedings it considers appropriate. Reference to full bench 281.(1) The commission may, at any stage of proceedings and on the terms the commission considers appropriate, refer the matter to which the proceedings relate to the full bench. (2) A commissioner may refer the matter only with the president's approval. (3) Before the hearing of a matter by the commission starts, a party to the proceedings may apply to the president for the matter to be referred to the full bench. (4) If the president is satisfied the matter is of substantial industrial significance, the president may refer the matter to the full bench. (5) The full bench may hear and decide a matter referred to it and make the decision it considers appropriate. ow w ND ns WNe eS an rei tilon' mB wb RP Re ona 2124 2629 31 s 282 207 s 283 Industrial Relations Case stated to court 282.(1) The commission may, at any stage of proceedings and on the terms it considers appropriate, state a written case for the court's opinion on a question of law relevant to the proceedings. (2) The court may— (a) hear and decide the matter raised by a case stated; and (b) remit the case, with its opinion, to the commission by which the case was stated. (3) The commission must give effect to the court's opinion. Power to enter and inspect 283.(1) A member, an officer of the commission or another person with a member's written authority (a "commission official"), may— (a) enter a workplace in relation to which— (i) an industrial dispute exists, is impending or threatened, or is likely to arise; or (11) an industrial matter exists; or (111) an industrial instrument or permit exists; or (iv) it is reasonably suspected an offence under this Act has been, or is being committed; and (b) inspect any work, machinery, appliance, materials, article or thing in or on the workplace; and (c) question a person in or on the workplace about a matter relevant to the commission's concern with the workplace. (2) A power under subsection (1) may be exercised only during working hours at the workplace. (3) If a commission official is seeking to exercise a power under subsection (1), a person must not— (a) refuse or unduly delay the official's entry to the workplace; or (b) fail to answer a question about a matter mentioned in subsection (1), unless the person has a lawful excuse; or C0 7A DN BWHNY 12 15 17 19 21 23 25 27 30 s 284 208 Industrial Relations s 284 (c) wilfully give false information or make a false statement. Maximum penalty—100 penalty units or 1 year's imprisonment. (4) In this section— "workplace" means a place where, or for which— (a) acalling is carried on; or (b) work has been, or is being, performed; or (c) another activity has happened, or is happening. Interpretation of industrial instruments 284.(1) The commission may give an interpretation of an industrial instrument, other than a certified agreement or QWA, on application by— (a) the Minister; or (b) an organisation; or (c) an employer; or (d) a person who satisfies the commission that the person is not an officer of, or acting for, an eligible association; or (e) an inspector. (2) The commission may give an interpretation of a certified agreement on application by— (a) the Minister; or (b) an organisation, or other person, bound by the agreement; or (c) an employee whose employment is subject to the agreement; or (d) an inspector. (3) The commission may give an interpretation of a QWA on application by— (a) a party to it; or (b) an inspector. YD nA fF W NY 1113 15 18 2022 24 26 s 285 209 s 285 Industrial Relations (4) If an inspector's application under this section relates to an alleged ambiguity, the commission must hear and decide the application in the absence of a statement of agreed facts. Conducting a secret ballot 285.(1) The commission may specify when, where and how a secret ballot is to be conducted. (2) The registrar must— (a) conduct the ballot in accordance with the direction; and (b) for the conduct of the ballot—do the things provided for by the rules. (3) Public service officers must help the registrar, as required, to conduct the ballot. (4) The registrar must advertise the result of the ballot in a newspaper circulating in the locality concerned, unless the commission otherwise directs. (5) A person must not— (a) resist or obstruct the registrar, a public service officer, or a person acting under the direction or authority of the registrar, performing a duty imposed, or an action directed or authorised to be done, for the ballot; or (b) at or near the place where the ballot is being taken— (i) threaten or intimidate, or obstruct the free passage of, an employee going to or attending at the place to vote at the ballot; or (11) threaten or intimidate an employee so that the employee would not vote or would vote in a particular way at the ballot; or (c) obstruct an employee or another person in the performance of an action directed or authorised to be done for the ballot; or (d) bya threat or intimidation, prevent an employee or another person from performing an action directed or authorised to be done for the ballot; or wn onan fs 12 141820 232629 31 s 286 210 s 287 Industrial Relations (e) vote at the ballot unless the person— (i) is entitled to vote; and (11) has received a ballot paper from the registrar; or (f) vote at the ballot in someone else's name; or (g) if the person is entitled to vote at the ballot—mark a ballot paper relating to the ballot, other than the ballot paper received by the person from the registrar. Maximum penalty—40 penalty units. (6) A police officer may— (a) arrest without warrant a person the officer finds committing an offence against subsection (5)(a), (b), (c) or (d); and (b) institute a prosecution for the offence. (7) Subsection (6) prevails over the Criminal Code, section 53479 to the extent of any inconsistency. (8) In this section— "prevent" includes attempt to prevent. "resist or obstruct" includes attempt to resist or obstruct. "threaten or intimidate" includes attempt to threaten or intimidate. "vote" includes attempt to vote. Other powers 286. This division does not limit, by implication, another power given to, or possessed by, the commission under this or another Act or law. General rulings 287.(1) The full bench may make general rulings about— (a) an industrial matter, to avoid a multiplication of inquiries into the same matter; or 79 Criminal Code, section 534 (Intimidation of workers and employers) BR WwW NY Ko OO NIDUN Re eS N aon' Bw a oc ON DWN 22 24 26 s 287 211 s 287 Industrial Relations (b) areview ofa general employment condition under chapter 2;80 or (c) a Queensland minimum wage, whether or not it is the subject of an industrial instrument. (2) Before conducting a hearing about the ruling, the full bench must— (a) give reasonable notice, in the way it considers appropriate, of its intention to conduct the hearing; and (b) give all interested persons an opportunity to be heard. (3) A ruling— (a) must specify a date (the "specified date") on and from which it has effect; and (b) has effect as a decision of the full bench on and from the specified date. (4) A ruling may exclude from the operation of any of its provisions— (a) aclass of employers or employees; or (b) employers or employees in a particular locality; or (c) an industrial instrument or part of an instrument. (5) As soon as practicable after making a ruling, the registrar must publish notice of the ruling and the specified date in the industrial gazette. (6) The notice, on and from the specified date, replaces a notice of a ruling on the same subject matter previously published. (7) The ruling notified continues in force until the end of the day immediately before the specified date included in the next ruling on the same subject matter. (8) If a ruling takes effect while an industrial instrument, other than a instrument or part of an instrument excluded under subsection (4), is in force— (a) the industrial instrument is taken to be amended to accord with the ruling, on and from the specified date; and (b) the amendment has effect as an industrial instrument, on and 80 Chapter 2 (General employment conditions) s 288 212 s 289 Industrial Relations from the specified date. (9) The registrar may amend an industrial instrument taken to be amended under subsection (8) as the registrar considers appropriate, to accord with the ruling— (a) on application under the rules; or (b) of the registrar's own initiative. (10) In this section— "Queensland minimum wage" means the wage declared by the full bench to be the Queensland minimum wage. Statement of policy 288.(1) The full bench may make a statement of policy about an industrial matter, whether or not the matter is before the commission. (2) On application by a party to an award, a stated policy may be given effect by being inserted in the award. (3) The registrar may give effect to a stated policy by directions about procedural matters to the extent allowed by the commission. (4) The directions bind all persons concerned. PART 3—INDUSTRIAL MAGISTRATES Division 1—Industrial Magistrates Court Industrial Magistrates Court 289. An Industrial Magistrates Court is a court of record. Ceo NA Dn PWN 12 14 16 21 s 290 213 s 292 Industrial Relations Division 2—Industrial magistrates Office of Industrial Magistrate 290. Each of the following persons is an industrial magistrate (a "magistrate")— (a) astipendiary magistrate; (b) an acting stipendiary magistrate. Division 3—Constitution and jurisdiction of Industrial Magistrates Court Constitution of Industrial Magistrates Court 291. An Industrial Magistrates Court is constituted by a magistrate sitting alone. Magistrate's jurisdiction 292.(1) A magistrate has jurisdiction— (a) to exercise powers conferred on, or jurisdiction given to, magistrates by this Act or another Act; and (b) to hear and decide proceedings about the following matters— (i) an offence against this Act for which— (A) a maximum penalty of not more than 40 penalty units is prescribed, unless the offence is one for which this Act makes other provision; or (B) jurisdiction is conferred on magistrates by this Act; ii) aclaim for wages; (it) 8 (111) claims for damages suffered by an employee because of the employer neglecting to pay the employee's wages; (iv) claims for damages for contravention of an agreement made under an industrial instrument; DH nA Pw Bw 11 13 15 17 1922 24 26 s 293 Industrial Relations s 293 (v) claims under chapter 11, part 2, division 2;8! (vi) claims for compensation under section 83.82 (2) A magistrate has jurisdiction throughout the State. Magistrates * jurisdiction is exclusive 293.(1) The jurisdiction conferred on a magistrate by this or another Act is exclusive of the jurisdiction of another court or tribunal, unless this or the other Act otherwise prescribes. (2) Jurisdiction conferred on a magistrate for the following matters is not exclusive of another court's jurisdiction— (a) a claim for an employee's wages payable under an industrial ins (b) ac trument or permit; aim for an employee's wages payab e under an agreement in which wages are payable at a price or rate higher than that fixed by a relevant industrial instrument or permit; (c) ac wh aim for an employee's wages payab relevant industrial instrument or permit; (d) ac fro e under an agreement in ich wages are payable at a price or rate that is not fixed by a aim for amounts payable, with an em m an employee's wages; 81 Chapter 11, part 2, division 2 (Protection for wages) ployee's written consent, 82 Section 83 (What employer must do to dismiss employee) w Bo COM NDUNH Lp eli andilend RwWN RP Ree NAW ee \o s 294 215 s 296 Industrial Relations PART 4—INDUSTRIAL REGISTRY Division 1—Industrial registry Industrial registry 294.(1) There is an Industrial Registry (the "registry").83 (2) The registry consists of — (a) an industrial registrar (the "registrar"); and (b) 1 or more deputy industrial registrars (a "deputy registrar"); and (c) the other staff mentioned in section 303. Functions of the registry 295. The registry has the following functions— (a) to act as the registry for the court and commission; (b) to provide administrative support to the court and commission; (c) any other functions conferred on the registry by this Act. Seal of the registry 296.(1) The registry has a seal. (2) Judicial notice must be taken of the imprint of the registry's seal on a document, and the document must be presumed to have been properly sealed unless the contrary is proved. Division 2—Industrial registrar and staff 83 The registry is a public service office under the Public Service Act 1996. aon nan nA Bp WwW 1113 15 17 s 297 216 s 299 Industrial Relations Appointment of registrar 297.(1) The Governor in Council may, by industrial gazette notice, appoint a person to be the registrar. (2) The registrar is to be paid the remuneration and allowances decided by the Governor in Council. (3) The registrar holds office on the terms and conditions, not provided for by this Act, decided by the Governor in Council. Termination of appointment of registrar 298.(1) The Governor in Council must end the registrar's appointment if the registrar— (a) is guilty of misconduct of a kind that could warrant dismissal from the public service if the registrar were a public service officer; or (b) is absent, without the Minister's leave or without reasonable excuse, for 14 consecutive days or 28 days in any year; or (c) becomes incapable of performing the functions of office. (2) The Governor in Council may end the registrar's appointment if the registrar— (a) is convicted of an indictable offence (whether in Queensland or elsewhere); or (b) engages in other paid employment. Functions and powers of registrar 299.(1) The registrar— (a) administers the registry; and (b) has the functions conferred on the registrar under this or another Act. (2) The registrar has the power to do all things necessary or convenient to be done to perform the registrar's functions. (3) In performing a function or exercising a power, the registrar must ND ns Wn 10 1215 18 20 2326 28 s 300 217 s 304 Industrial Relations comply with a direction given in relation to the performance or exercise by the president or commissioner administrator. Deputy registrar 300. A deputy registrar must help the registrar in performing the registrar's functions. Delegation by registrar 301. The registrar may delegate a power of the registrar under this Act to— (a) a deputy registrar; or (b) an appropriately qualified person nominated by the president; or (c) for section 37484—an appropriately qualified officer of the court or commission. Acting registrar 302.(1) This section applies if the registrar temporarily can not perform the functions of office. (2) The Governor in Council may appoint a person to act as the registrar by industrial gazette notice. Staff 303. The staff of the registry, including a deputy registrar, are to be appointed under the Public Service Act 1996. Officers of the court and commission 304. The registrar, a deputy registrar and the other staff of the registry are officers of the court and the commission. 84 Section 374 (Inspection of employee register and index—registrar) Ne 15 17 20 23 s 305 218 s 306 Industrial Relations PART 5—ARRANGEMENTS WITH OTHER AUTHORITIES Division 1—Member may also be member of Australian commission Member may hold other appointment 305. A member who is appointed as a member of the Australian commission may hold that appointment and the appointment as a member at the same time. Division 2—Dual commissioners Appointment of Commonwealth official as commissioner 306.(1) The Governor in Council may appoint a member of the Australian commission to be a commissioner ("dual commissioner"). (2) Sections 263 and schedule 2, part 1, section 185 do not apply to the appointment of a dual commissioner or to a dual commissioner. (3) The appointment— (a) is for the term the Governor in Council considers appropriate and states in the instrument of appointment; and (b) may be ended, with the Governor in Council's approval, by the Minister's notice given to the dual commissioner. (4) A dual commissioner— (a) is not entitled to remuneration for performing the functions of a commissioner; but (b) is entitled to be paid expenses reasonably incurred by the dual commissioner in exercising powers and performing functions as a commissioner. 85 Section 263 (Removal of commissioners from office) and schedule 2 (Appointments and procedures), part 1 (president, vice president and commissioners), section | (Remuneration) YAW pw 11 13 16 18 21 23 s 307 219 s 308 Industrial Relations (5) A dual commissioner stops being a commissioner if the person— (a) becomes a person mentioned in section 262;86 or (b) stops being a member of the Australian commission. Role of dual commissioner 307.(1) A dual commissioner, in accordance with an agreement between the president and the president of the Australian commission— (a) must perform the functions of a commissioner; and (b) has, and may exercise for a particular matter, the powers of — (i) acommissioner; and (11) a member of the Australian commission. (2) A provision of this Act prescribing the functions or powers of a commissioner is subject to subsection (1) in its application to a dual commissioner. Division 3—References to Commonwealth official Reference of matter to Commonwealth official 308.(1) The president may ask the president of the Australian commission to nominate a member of that commission to deal with an industrial matter before the commission. (2) If a nomination is made, the president may refer the industrial matter to the nominated member, to be dealt with by the nominated member under this Act. (3) In dealing with the industrial matter, the nominated member— (a) has the powers of a commissioner; and (b) in exercising the powers, is taken to constitute the commission. (4) The nominated commissioner's decision is taken to be a decision of 86 Section 262 (Restrictions on appointment) w oO NAW Bp 13 17202325 s 309 220 s 310 Industrial Relations the commission. (5) The reference of an industrial matter to a nominated commissioner— (a) does not derogate from the commission's authority to exercise jurisdiction in relation to the matter; and (b) may be revoked by the president by notice given to the nominated commissioner. (6) In this section— "industrial matter" includes part of an industrial matter. Division 4—Conferences and joint sessions with industrial authorities Conferences with industrial authorities 309.(1) This section applies if— (a) the president considers it desirable that a conference be held with an industrial authority about an industrial matter; and (b) the industrial authority agrees to a conference. (2) The president may confer, or direct a commissioner to confer, with the industrial authority to coordinate decisions made, or to be made— (a) under this Act about the industrial matter; and (b) by the industrial authority. Joint sessions with industrial authorities 310.(1) This section applies if— (a) the president considers proceedings relating to an industrial matter before the commission should be heard in joint session with an industrial authority; and (b) the industrial authority agrees to a joint session. (2) The president may— (a) hear, or direct a commissioner to hear, the proceedings in joint session with the industrial authority; and ao nN nm WwW N 11 13 16 18 20 2225 27 s311 221 s 313 Industrial Relations (b) confer, or direct the commissioner to confer, with the industrial authority about the proceedings and the decision to be made in the proceedings; and (c) join, or direct the commissioner to join, with the industrial authority in the decision made in the proceedings. Similar matters before full bench and industrial authority 311.(1) This section applies if— (a) the president considers an industrial authority has before it an industrial matter similar to an industrial matter before the full bench; and (b) the industrial authority agrees to participate in joint session. (2) The president may— (a) ifthe president is a member of the full bench—participate in joint session with the industrial authority about the industrial matter; or (b) direct a member of the full bench to participate in joint session with the industrial authority about the industrial matter. (3) The president or member must report the result of the joint session to the full bench. Member's powers in joint session 312. A member participating in joint session with an industrial authority, in relation to the industrial matter dealt with in joint session, must perform the functions and has, and may exercise, the powers of the commission. President may decide matter not to be dealt with in joint session 313. The president may decide that an industrial matter should not be dealt with in joint session and, if the decision is made after a joint session about the matter starts— (a) the member participating in the joint session must immediately stop participating; and ns WwW NR oonMmn ND 14 16 18 2126 28 s 314 222 s 315 Industrial Relations (b) the industrial matter may proceed before the commission or, if appropriate, the full bench. Division 5—Other functions etc. and arrangements Functions and powers vested in commission by other jurisdictions 314.(1) The commission may perform the functions and exercise the powers conferred on it under— (a) the Workplace Relations Act 1996 (Cwlth); or (b) another enactment of a jurisdiction other than Queensland declared for this section under a regulation. (2) A decision of the commission under authority conferred by subsection (1) is not a decision made by it under this Act. Arrangements with Commonwealth public service 315.(1) Arrangements may be made under the Public Service Act 1996, section 8287 for— (a) a Commonwealth public servant to perform functions and exercise powers under this Act; and (b) Queensland public service employees to perform functions and exercise powers under the Commonwealth Act. (2) An arrangement under subsection (1)(a) is enough authority for a Commonwealth public servant to perform the functions and exercise the powers of a Queensland public service employee under this Act. (3) In this section— "Commonwealth public servant" means— (a) an officer of the Commonwealth public service; or (b) the industrial registrar under the Commonwealth Act; or 87 Public Service Act 1996, section 82 (Work performance and _ interchange arrangements) BO CO XA DAN ee 14 16 18 202325 s 316 223 s 317 Industrial Relations (c) another person performing functions and exercising powers under the Commonwealth Act. PART 6—PROCEEDINGS OF COURT, COMMISSION, MAGISTRATES AND REGISTRAR Division 1—Definitions Definitions for pt 6 316. In this part— "administer" an oath includes authorise the administering of an oath. "exercising" jurisdiction includes exercising powers and performing functions. "take" a statutory declaration includes authorise the taking of a statutory declaration. Division 2—Starting proceedings and service of process Starting proceedings 317.(1) Unless otherwise provided, proceedings may be started in the court or commission or before the registrar on application by— (a) an organisation or an officer or member of an organisation; or (b) the Minister; or (c) a State peak council; or (d) an inspector; or (e) an employer; or (f) aperson who has an interest in the matter to which the application relates. Ne 16 182023 s 318 224 s 318 Industrial Relations (2) Proceedings may also be started by the commission of its own initiative. (3) In proceedings, the commission may call before it the persons it considers necessary. (4) This section does not affect another provision of this Act providing for the starting of proceedings. Service of process 318.(1) Subsection (2) applies if— (a) for proceedings in, or to be started in, the court—the president or registrar considers service of a document can not be effected promptly by personal service or in a way prescribed under the rules; or (b) for proceedings in, or to be started in, the commission—the commission or registrar considers service of a document can not be effected promptly by personal service or in a way prescribed under the rules. (2) The president, commission or registrar may order— (a) substituted service of the document; or (b) notice of the document be given by letter, telex, fax, email, advertisement in an appropriate newspaper, or otherwise, instead of service. (3) Service or notice in accordance with the order is sufficient service of the person required to be served. (4) Unless otherwise ordered by the court or commission— (a) service of the document on an employer organisation; or (b) substituted service or notice of the document in accordance with an order under subsection (2); is taken to be service on all employers who have employees engaged in the calling that is relevant to the purpose of the document, or in related callings. (5) In this section— "document" includes an attendance notice, notice or order. Dn BPW NE 111416 18 2023 25 27 29 31 s 319 225 s 319 Industrial Relations Division 3—Conduct of proceedings Representation of parties 319.(1) In proceedings, a party to the proceedings, or a person ordered or permitted to appear or to be represented in the proceedings, may be represented by— (a) an agent appointed in writing; or (b) ifthe party or person is an organisation—an officer or member of (2) The party the organisation. or person may be represented by a lawyer if, and only if— (a) for proceedings in the court— (i) ¢ he proceedings are for the prosecution of an offence; or (11) all parties consent; or (iii) ¢ he court gives leave; or (b) for proceedings before the commission, other than proceedings under (i) ¢ section 27888— he proceedings relate to a matter under chapter 4;89 or (11) all parties consent; or (111) on application by a party or person, the commission is satisfied, having regard to the matter the proceedings relate to, that there are special circumstances that make it desirable for the party or person to be legally represented; or (iv) on application by a party or person, the commission is satisfied the party or person can be adequately represented only by a lawyer; or (c) for proceedings before an Industrial Magistrates Court, other than proceedings remitted under section 278(5)— (i) all parties consent; or 88 Section 278 (Power to recover wages and superannuation) 89 Chapter 4 (Freedom of association) CMI DA HNBW Ww See ee ww NY Fe So ee nat Re oe a on NNR Re re OO NNN BRwWN NN Hun N NX s 320 226 s 320 Industrial Relations (11) the proceedings are brought personally by an employee and relate to a matter that could have been brought before a court of competent jurisdiction other than an Industrial Magistrates Court; or (11) the proceedings are for the prosecution of an offence; or (d) for proceedings before the registrar, including interlocutory proceedings— (i) all parties consent; or (11) the registrar gives leave. (3) However, in proceedings mentioned in subsection (2)(c)(ili), the person represented can not be awarded costs of the representation. (4) For subsection (2)(b)(iii) and (iv), the commission may consider, for example, the following— (a) (b) (c) (d) (e) (f) (g) t t t t t t he amount claimed in the proceedings, if any; he nature and complexity of the matter; he nature of the evidence to be adduced; he cross examination likely to be required; he capacity of the party or person to represent himself or herself; he questions of law likely to arise; whether the duration or cost of the proceedings will be decreased or increased if the party or person is represented. (5) In this section— "proceedings" means proceedings under this or another Act being conducted by the court, the commission, an Industrial Magistrates Court or the registrar. Basis of decisions of the commission and magistrates 320.(1) Subsections (2) and (3) do not apply to proceedings for— (a) the recovery of amounts, other than an amount ordered under KOO OH ND Wn BwWwWNvNoe il oon wn a Co ON Dn Nw a) N N NNN n BW 27 s 321 227 s 321 Industrial Relations section 27890; or (b) an offence against this Act. (2) In proceedings, the commission or Industrial Magistrates Court— (a) is not bound by technicalities, legal forms or rules of evidence; and (b) may inform itself on a matter it considers appropriate in the exercise of its jurisdiction. (3) Also, the commission or Industrial Magistrates Court is to be governed in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of — (a) the persons immediately concerned; and (b) the community as a whole. (4) In proceedings, the commission may admit evidence given before, and the findings of, the Anti-Discrimination Commission as evidence in the proceedings. (5) In making a decision, the commission must consider the public interest, and to that end must consider— (a) the objects of this Act; and (b) the likely effects of the commission's decision on the community, local community, economy, industry generally and the particular industry concerned. (6) In exercising its jurisdiction, the commission must have appropriate regard to the rules. Competence and compellability of witnesses 321. A party to proceedings in the court or commission is competent, and may be compelled, to give evidence in the proceedings as a witness to the same extent as in civil proceedings in the Supreme Court. 90 Section 278 (Power to recover unpaid wages and superannuation contribution etc.) 26 s 322 228 s 324 Industrial Relations Intervention 322.(1) The Minister may intervene— (a) in proceedings before an industrial tribunal; or (b) in proceedings before another court or tribunal that touch on— (i) the jurisdiction or powers of the court, the commission, a magistrate or the registrar; or (11) a matter for which the jurisdiction or powers may be exercised; or (11) the interpretation of this Act. (2) A State peak council may intervene in proceedings before the commission if any of its members has a sufficient interest in the proceedings. (3) On intervention, the Minister or State peak council becomes a party to the proceedings. (4) In this section— "industrial tribunal" means the court, the commission, an Industrial Magistrates Court or the registrar. Adjournment by registrar 323. If the president or a commissioner can not attend at the time appointed for hearing proceedings, the registrar may adjourn the court or commission and any business set down for the day to a day and time that the registrar considers convenient. State employee to give information 324.(1) A person employed by the State must give the court or commission, if the court or commission asks, information that the person has knowledge of in an official capacity. (2) The person must comply with the request despite an obligation under an Act or law not to disclose information, unless the Act or law allows, justifies or excuses a refusal to give it in evidence in legal proceedings. CY AN FF WN 1114 17 2022 26 28 s 325 229 s 326 Industrial Relations Division 4—Powers Exercise of commission's powers 325.(1) The commission may, unless otherwise prescribed by or under this Act,9! exercise its powers— (a) of its own initiative; or (b) on application by— (1) aparty to proceedings in which the power is to be exercised; or (11) an organisation. (2) The commission may, of its own initiative— (a) join 2 or more matters to be heard and decided by the commission, whether the matters or any of them arise under this or another Act; and (b) hear and decide the matters in 1 proceeding. Interlocutory proceedings 326. In an industrial cause, the president, commission or registrar may make orders, or give directions, the president, commission or registrar considers just and necessary in relation to interlocutory proceedings to be taken before the hearing of the cause, including proceedings about— (a) naming and joinder of parties; or (b) persons to be served with notice of proceedings; or (c) calling of persons to attend in proceedings; or (d) particulars of the claims of the parties; or (e) the issues to be referred to the court or commission; or (f) admissions, discovery, interrogatories or inspection of documents or property; or 91 See, for example, section 280 (Procedures for reopening). CMY DWH pw Bw 13 1719 212326 s 327 230 s 328 Industrial Relations (g) examination of witnesses; or (h) costs of the interlocutory proceedings; or (i) place, time and mode of hearing of the cause. Power to order inquiry or taking of evidence 327.(1) The commission, by order, may direct— (a) the registrar to conduct an inquiry into a matter the commission requires information about for the exercise of the commission's jurisdiction; or (b) an appropriately qualified person to take evidence for the commission about an industrial cause. (2) The registrar or other person must comply promptly with the direction and report, or give a record of evidence taken, to the commission. (3) The registrar may call persons to attend before the registrar and examine parties and witnesses for— (a) conducting an inquiry mentioned in subsection (1); or (b) disposing of another matter referred to the registrar under this Act. (4) A person directed to take evidence under subsection (1) has all the powers of the commission for— (a) calling witnesses; and (b) requiring production of records. Power to administer oath 328. In exercising jurisdiction, the following persons may take evidence on oath or statutory declaration, and for that purpose may administer an oath or take a statutory declaration— (a) a person constituting the court, the commission or an Industrial Magistrates Court; (b) the registrar; w eOaANID Nn fF 12 14 17 19 21 2427 s 329 231 s 329 Industrial Relations (c) a person directed by the commission to take evidence for the commission. Powers incidental to exercise of jurisdiction 329. Except as otherwise prescribed by this Act or the rules, the court, commission and registrar may— (a) (b) (c) (d) (e) (f) (g) (h) (i) at or before a hearing, take steps to find out whether all persons who ought to be bound by a decision to be made in proceedings have been called to attend or given notice of, the proceedings; and direct, for proceedings— (i) who the parties to the proceedings are; and (11) by whom the parties may be represented; and (11) persons to be called to attend the proceedings, if they have not been called and it appears they should attend the proceedings; and (iv) parties to be joined or struck out; and (v) who may be heard and on what conditions; and hear and decide an industrial cause in the way that appears best suited for the purpose; and allow claims in the proceedings to be amended on terms that appear fair and just; and correct, amend or waive an error, defect or irregularity in the proceedings, whether substantive or formal; and give directions under a decision, that the court, commission or registrar considers necessary for, or conducive and appropriate to, the effective implementation of the decision; and hear and decide an industrial cause in the absence of a party, or of a person who has been called to attend, or served with a notice to appear, at the proceedings; and sit at any time and in any place for hearing and deciding an industrial cause, and adjourn a sitting to any time and place; and refer technical matters, accounting matters, or matters involving CoC MOID WHR Ww 11 1316 18 20 22 242730 s 330 232 s 330 Industrial Relations expert knowledge to an expert, and admit the expert's report in evidence; and (j) extend a prescribed or stated time, before or after expiry of the time; and (k) waive compliance with the rules. Power to obtain data and expert evidence 330.(1) If the commission wants expert evidence based on facts or figures to decide an industrial cause, it may— (a) order the following persons to give it returns of the facts or figures— (i) an organisation that is, or any of whose members are, party to the proceedings; (11) an employer, or group of employers, who is a party to the proceedings; and (b) allow a person selected by it as an expert in a relevant respect to prepare, from the returns, reports directed to matters that the commission seeks to be informed on. (2) A person preparing a schedule may show in it the particulars that— (a) are relevant to the cause; or (b) the commission asks for. (3) However, the person must not, without the commission's leave, otherwise divulge to anyone (other than the commission)— (a) the name of the organisation that gave the return; or (b) business information of a private or confidential nature extracted from the return. Maximum penalty—20 penalty units. (4) A schedule, as far as possible, must extend beyond 1 year's operation of a business or industry. nA BW NYE s 331 233 s 332 Industrial Relations Division 5—Decisions and enforcement Decisions generally 331. The court or commission may, in an industrial cause— (a) make a decision it considers just, and include in the decision a provision it considers appropriate for preventing or settling the industrial dispute, or dealing with the industrial matter, the cause relates to, without being restricted to any specific relief claimed by the parties to the cause; or (b) dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers— (i) _ the cause is trivial; or (11) further proceedings by the court or commission are not necessary or desirable in the public interest; or (c) order a party to the cause to pay another party the expenses, including witness expenses, it considers appropriate. Reserved decisions 332.(1) The court or commission may reserve its decision in proceedings. (2) If a decision is reserved— (a) it may be pronounced at— (i) acontinuation or resumption of the court or commission; or (11) a subsequent sitting of the court or commission; or (b) the court or commission may give its written decision, signed by the person or each of the persons constituting the court or commission, to the registrar. (3) The registrar must file a written decision in the registry and give a copy of it to each of the parties to the industrial cause. (4) When filed, a written decision has effect as if it had been pronounced by the court or commission. 18 2022 2427 29 s 333 234 s 334 Industrial Relations Commission decisions to be in plain English 333. The commission must ensure the commission's written decisions are— (a) in plain English; and (b) structured in a way that makes a decision as easy to understand as the subject matter allows. Extent of decisions and their execution 334.(1) In the exercise of its jurisdiction, the court or commission may— (a) make the decisions it considers necessary for— (i) doing complete justice in proceedings before it; and (11) the execution of the decision; and (b) enforce its own decisions; and (c) direct the issue of a writ or process; and (d) impose and enforce a penalty, allowed or prescribed by this or another Act, in the same way a Supreme Court judgment is enforced. (2) A decision of the court or commission— (a) must be drawn up and verified; and (b) without limiting any other way of execution and recovery prescribed by or under this Act, may be executed, recovered on, and otherwise enforced; as a judgment or order of a Supreme Court judge is drawn up, verified, executed, recovered and otherwise enforced against the person, lands, and goods of the party affected. (3) For the effective operation of subsection (2), the Uniform Civil Procedures Rules, as far as they may reasonably be applied, are to be applied and complied with, with the amendments the court or commission approves. (4) The registrar, deputy registrars, sheriff, bailiffs and officers of the Supreme Court, or of Magistrates Courts, are taken to be officers of the DAN fF WN 1113 1518 20232628 30 s 335 235 s 336 Industrial Relations court and commission for— (a) executing, recovering on, and otherwise enforcing decisions of the court or commission; or (b) imposing functions or conferring powers by the rules and of performing the functions or exercising the powers. Costs 335.(1) The court or commission may order a party to an application to pay costs incurred by another party only if satisfied— (a) the party made the application vexatiously or without reasonable cause; or (b) for an application for reinstatement—the party caused costs to be incurred by the other party because of an unreasonable act or omission connected with the conduct of the application. (2) In this section— "costs" include legal and professional costs and disbursements and witness expenses. Recovery of amounts under orders 336.(1) If the court or commission in proceedings orders an amount be paid (as a penalty or otherwise), the registrar may issue a certificate, under the seal of the court or commission, stating — (a) the amount payable; and (b) who is to pay the amount; and (c) to whom the amount is payable; and (d) any conditions about payment. (2) The amount may be recovered in proceedings as for a debt. (3) When the certificate is filed in a court of competent jurisdiction in an action for a debt of the amount, the order evidenced by the certificate is enforceable as an order made by the court where the certificate is filed. (4) This section does not limit other ways in which amounts may be 19222427 s 337 236 s 338 Industrial Relations recovered on an order of the court or commission. (5) In this section— "registrar", for an order made by a magistrate on remission from the commission under section 278,92 means the registrar of the Magistrates Court. Division 6—Protections and immunities Protection and immunities 337.(1) The president, the commission and a magistrate, in the exercise of jurisdiction for this or another Act have the protection and immunities of a Supreme Court judge exercising the jurisdiction of a judge. (2) The president, the commission, a magistrate or the registrar (the "official") has, in proceedings for defamation for a publication made to or by the official in the official's official capacity, a defence of absolute privilege if the publication was made in good faith. (3) The burden of proving absence of good faith is on a person who alleges the absence. Division 7—Rules and practice Rules 338.(1) The Governor in Council may make rules under this Act. (2) The rules may only be made with the consent of the president. (3) The president must consult with— (a) fora rule relating to the Industrial Magistrates Court—the Chief Stipendiary Magistrate; or (b) for a rule relating to the registry—the registrar; or 92 Section 278 (Power to recover unpaid wages and superannuation contribution etc.) aA pW NN 10 1214 16 1921 23 s 338 237 s 338 Industrial Relations (c) otherwise—2 commissioners. (4) Rules may be made about the following matters— (a) (b) (c) (d) (e) (f) (g) (h) (i) 0) (k) regulating the practice and procedure to be followed and used— (i) in or for proceedings in the court, commission or Industrial Magistrates Court and before the registrar; or (11) in or for drawing up, settling and enforcing decisions, convictions and actions made, recorded or done by the court, commission or registrar; publishing decisions and other actions of the court, commission or registrar and the effect of the publication; recovering fines and penalties imposed; enforcing orders for attachment or imprisonment and orders for the payment of amounts made by the court or commission; fees and expenses payable to witnesses; fees payable in relation to proceedings in the court or commission, or before the registrar and the party by whom the fees are to be paid; service of process, notices, orders or other things on parties and other persons; the functions and powers of officers of the court or commission; delegating the jurisdiction of the commission as permitted by this Act; requiring organisations or other entities to give returns, lists of officers or members and other statistical information to the registrar; providing for all matters necessary or expedient to be provided for to allow for— (i) the full and effective exercise of jurisdiction and powers of the court, commission, Industrial Magistrates Court and registrar; and (11) giving effect to the decisions, convictions and actions made, recorded, or done by the court, the commission, a 2427 2932 s 339 238 s 340 Industrial Relations magistrate, the registrar, or an officer of the court or commission. (5) Rules made under this section are subordinate legislation. Directions about practice 339.(1) Subject to this Act and the rules, the practice and procedure of the court, the commission, an Industrial Magistrates Court or the registrar is as directed by the president, a commissioner, a magistrate or the registrar. (2) If a person wishes to take a step in an industrial cause or a proposed cause and this Act or the rules do not provide or sufficiently provide for it, application for directions may be made to the appropriate person mentioned in subsection (1). CHAPTER 9—APPEALS Division 1—Appeals to Court of Appeal Appeal from court or full bench 340.(1) A defendant who is dissatisfied with a decision of the court in proceedings mentioned in section 25193 may appeal to the Court of Appeal. (2) The Minister, or a person who is dissatisfied with a decision of the full bench, may appeal to the Court of Appeal only on the ground of— (a) error of law; or (b) excess, or want, of jurisdiction. (3) Subsection (2) applies only if the constitution of the full bench included the president. (4) The Court of Appeal may— 93 Section 251 (Contempt of court) w BPSouwunmn ADN ee 16 18 20 22 s 341 239 s 341 Industrial Relations (a) dismiss the appeal; or (b) allow the appeal, set aside the decision and substitute another decision; or (c) allow the appeal and amend the decision; or (d) allow the appeal, suspend the operation of the decision and remit the industrial cause (with or without directions) to the court or full bench— (i) for report to the Court of Appeal; or (11) to act according to law. Division 2—Appeals to court Appeal from commission, magistrate or registrar 341.(1) The Minister, or a person dissatisfied with a decision of the commission (other than a determination under section 149% or a decision made by a full bench the constitution of which included the president) or registrar, may appeal against the decision to the court only on the ground of— (a) error of law; or (b) excess, or want, of jurisdiction. (2) A person may appeal to the court if dissatisfied with a decision of a magistrate under section 29295 in relation to— (a) the matters stated in section 292; or (b) the powers provided for in section 408.96 (3) The court may— (a) dismiss the appeal; or (b) allow the appeal, set aside the decision and substitute another 94 Section 149 (Arbitration if conciliation unsuccessful) 95 Section 292 (Magistrate's jurisdiction) 96 Section 408 (Recovery of unpaid superannuation contribution) CMO IDNA B WY 131518 20 2224 s 342 240 s 342 Industrial Relations decision; or (c) allow the appeal and amend the decision; or (d) allow the appeal, suspend the operation of the decision and remit the industrial cause, with or without directions, to the commission, an Industrial Magistrates Court or the registrar to act according to law. Division 3—Appeals to full bench Appeal from commission, magistrate or registrar 342.(1) A person dissatisfied with a decision of the commission may appeal against the decision to the full bench, with the full bench's leave, ona ground other than— (a) error of law; or (b) excess, or want, of jurisdiction. (2) However, if a person wants to appeal against a decision of the commission both on a ground mentioned in section 341(1) and on a ground mentioned in subsection (1), the person may only appeal against the decision to the full bench, with the full bench's leave. (3) The full bench must, and may only, give leave for subsection (1) or (2) if it considers the matter is important enough, in the public interest, to give leave. (4) Also, the Minister may appeal against a decision of the commission to the full bench. (5) A person dissatisfied with a decision of a magistrate under this Act, other than a decision mentioned in section 341(2), may appeal against the decision to the full bench. (6) A person dissatisfied with a decision of the registrar, other than a decision mentioned in section 287(9), 241(1) or 695,97 or mentioned in 97 Section 287 (General rulings) Section 241 (Right to refuse to work if imminent health or safety risk) Section 695 (Student's work permit) DAnfPwW NY 11 13 1517 1922 2427 s 343 241 s 343 Industrial Relations section 341(1) may appeal against the decision to the full bench. (7) A person dissatisfied with a decision of the registrar under section 287(9) may appeal against the decision to the full bench as it was constituted when the general ruling under section 287 was made. (8) The full bench may— (a) dismiss the appeal; or (b) allow the appeal, set aside the decision and substitute another decision; or (c) allow the appeal and amend the decision; or (d) allow the appeal, suspend the operation of the decision and remit the industrial cause, with or without directions, to the commission, an Industrial Magistrates Court or the registrar— (i) for report to the full bench; or (11) to act according to law. Division 4—Appeals to commission Appeal from registrar 343.(1) A person dissatisfied with a decision of the registrar under section 69598 may appeal against the decision to the commission. (2) The commission may— (a) dismiss the appeal; or (b) allow the appeal, set aside the decision and substitute another decision; or (c) allow the appeal and amend the decision; or (d) allow the appeal and remit the matter, with or without directions, to the registrar— 98 Section 695 (Student's work permit) CI HD Nn FWN 1114 18 20 22 25 s 344 242 s 344 Industrial Relations (i) for report to the commission; or (11) to act according to law. Appeal against stand-downs 344.(1) An employee stood down by an employer under section 98,99 may appeal to the commission against the stand-down. (2) If the employee is a member of an employee organisation, the organisation may institute and conduct the appeal for the employee. (3) The commission may— (a) dismiss the appeal; or (b) allow the appeal and order the employee be paid, within a stated period, the wages lost by the employee because of the stand-down; or (c) if the employee remains stood down at the time of the commission's decision— (i) allow the appeal; and (11) order the employer to provide for the resumption of work by the employee, immediately or on a stated day; and (111) make an order about payment of wages mentioned in paragraph (b). (4) If the commission makes an order under subsection (3)(b), it may include in the order default provisions for its enforcement, other than by imprisonment, as if— (a) the commission were an Industrial Magistrates Court; and (b) the member who makes the order were a magistrate. (5) The order may be filed with the clerk of a Magistrates Court and on filing may be enforced as an order made by an Industrial Magistrates Court. 99 Section 98 (Permissible stand-down of employee) ao nn On Ee Ww 1114 17 19 2124 26 s 345 243 s 348 Industrial Relations Division 5—General Definition for div 5 345. In this division— "industrial tribunal" means the Court of Appeal, court, full bench or commission. Time limited for appeal 346.(1) An appeal against a decision must be commenced, as required under the rules, within 21 days after— (a) if the decision is given at a hearing—the announcement of the decision at the hearing; or (b) if the decision is given through the registrar—the release of the decision. (2) However, on an application made during or after the 21 days, the industrial tribunal may allow an appeal to be commenced within a longer period. Stay of decision appealed against 347.(1) This section applies if an appeal is made under this part. (2) The industrial tribunal may order that the decision being appealed be wholly or partly stayed pending— (a) the determination of the appeal; or (b) a further order of the industrial tribunal. Nature of appeal 348.(1) An appeal to an industrial tribunal is by way of rehearing on the record. (2) However, the industrial tribunal may hear evidence afresh, or hear additional evidence, if the industrial tribunal considers it appropriate to effectively dispose of the appeal. nA p W w 17 19 21 24 26 s 349 244 s 349 Industrial Relations Finality of decisions 349.(1) This section applies to the following decisions— (a) adecision of the Court of Appeal under section 340; (b) adecision of the court under section 341; (c) adecision of the full bench under section 342; (d) a decision of the commission under section 343 or 344; (e) another decision of the court, the full bench, the commission, an Industrial Magistrates Court or the registrar. (2) The decision— (a) is final and conclusive; and (b) can not be impeached for informality or want of form; and (c) can not be appealed against, reviewed, quashed or invalidated in any court. (3) The industrial tribunal's jurisdiction is exclusive of any court's jurisdiction and an injunction or prerogative order can not be issued, granted or made in relation to proceedings in the court within its jurisdiction. (4) This section does not apply to a decision mentioned in subsection (2) to the extent that this Act or another Act provides for a right of appeal from the decision. (5) Subsection (2) is subject to section 340.100 (6) In this section— "industrial tribunal" includes an Industrial Magistrates Court and the registrar. 100 Section 340 (Appeal from court or full bench) Oo ANI HD Hn Ff W NY eS eK Oo lon' wn eRe DAuns eee oon No N re SO NN wh s 350 245 s 351 Industrial Relations CHAPTER 10—ENFORCEMENT Division 1—Appointment Appointment of inspectors 350.(1) The Governor in Council may, by industrial gazette notice, appoint a person as the chief inspector. (2) The chief executive may appoint a person as an inspector. (3) A person appointed as an inspector— (a) must be— (i) a public service officer or employee; or (ii) a training consultant under the Vocational Education, Training and Employment Act 1991; or (iii) a person with the qualifications prescribed under a regulation; and (b) must have the necessary expertise or experience to be an inspector. (4) An inspector, while the inspector holds the appointment, is also an inspector for— (a) the Pastoral Workers' Accommodation Act 1980; and (b) the Trading (Allowable Hours) Act 1990; and (c) the Workers' Accommodation Act 1952. (5) An inspector is to be employed under the Public Service Act 1996. Functions 351.(1) An inspector must— (a) ensure industrial instruments, permits and orders are, as far as possible, complied with; and (b) investigate and, when necessary, take action to deal with alleged contraventions of this Act; and KR Ww Bee ee BL AR WN F§ oOo © oN DA Ww Ree na NHN NY FS re Oo Ow 23 25 27 s 352 246 s 353 Industrial Relations (c) inform employees and employers of their rights and obligations under this Act; and (d) perform other functions— (i) given to an inspector under this or another Act; or (11) prescribed under a regulation. (2) In doing so, the inspector must, when appropriate, have particular regard to— (a) the needs of employees in a disadvantaged bargaining position (including for example, women, people from a non-English speaking background, young people, apprentices, trainees and outworkers); and (b) helping employees to balance work and family responsibilities. Powers 352.(1) An inspector has the power to do all things necessary or convenient to be done for, or in connection with, the performance of the inspector's functions. (2) An inspector may exercise a power in relation to a person only if the inspector— (a) first produces his or her identity card for the person's inspection; or (b) has the inspector's identity card displayed so it is clearly visible to the person. (3) However, if for any reason it is not practicable to comply with subsection (2) before exercising the power, the inspector must produce the identity card for the person's inspection at the first reasonable opportunity. Division 2—General powers Entry to places 353.(1) An inspector may, without the occupier's consent, enter— FBPCouwom IAD HW B&B wW NE ee a N 1518 20 22 2428 s 354 247 Industrial Relations s 354 (a) a public place; or (b) a workplace when— (i) the workplace is open for carrying on business; or (11) the workplace is otherwise open for entry. (2) If the workplace is on or near domestic premises, an inspector may, without the occupier's consent— (a) enter the land around the premises to to contact the occupier; or an extent that is reasonable (b) enter part of the place the inspector reasonably considers members of the public are ordinarily wish to contact the occupier. allowed to enter when they (3) However, if it is practicable to do so before entering the land, the inspector must first tell the occupier of the inspector's intention to gain access to the workplace. (4) In this section— "domestic premises" means premises usually occupied as a private dwelling house. "workplace" means a place in or on which the inspector reasonably suspects a calling is, has been, or is about to be carried on. General powers after entering workplaces 354.(1) This section applies to an inspector w section 353. (2) However, if an inspector enters a work consent to enter the workplace, this section applies to the inspector only if the consent is given or the entry is otherwise aut (3) For monitoring or enforcing compliance may— (a) inspect, photograph or film any part o workplace; or (b) copy a document at the workplace; or ho enters a workplace under place to get the occupier's horised. with this Act, the inspector f the place or anything at the FOO DAYHQ AN FP WN Re Ree ee RwWN Nn Ree na ee \o 22 2427 29 s 355 248 s 355 Industrial Relations (c) take into or onto the workplace the persons, equipment and materials the inspector reasonably requires for exercising a power under this part; or (d) require a person at the workplace to give the inspector reasonable help to exercise the powers under paragraphs (a) to (c). (4) When making a requirement under subsection (2)(d), the inspector must warn the person it is an offence to fail to comply with the requirement, unless the person has a reasonable excuse. (5) A person required to give reasonable help under subsection (2)(d) must comply with the requirement, unless the person has a reasonable excuse. Maximum penalty—40 penalty units. Power to require documents to be produced 355.(1) An inspector may require a person to produce for inspection, at a reasonable time and place nominated by the inspector, a document relating to employees, including, for example, a time sheet or pay sheet. (2) The person must produce the document, unless the person has a reasonable excuse. Maximum penalty—40 penalty units. (3) The inspector may keep the document to copy it. (4) If the inspector copies it, the inspector may require the person responsible for keeping the document to certify the copy as a true copy of the document. (5) The person must certify the copy, unless the person has a reasonable excuse. Maximum penalty—40 penalty units. (6) The inspector must return the document to the person as soon as practicable after copying it. BR Wnye = ee Foo DNDN a N 1518 20 2225 28 s 356 249 s 357 Industrial Relations Power to require information 356.(1) An inspector may, during business hours— (a) question with respect to matters under this Act or under a relevant industrial instrument— (i) an employer in a calling; or (11) a person found in or on a place in or on which the inspector reasonably suspects a calling is, has been, or is about to be carried on; and (b) require the employer or person to give the inspector information to help the inspector ascertain whether this Act, or a relevant industrial instrument, permit or order are being, have been or will be complied with, or should be given operation in relation to the calling. (2) When making the requirement, the inspector must warn the employer or person it is an offence not to comply with the requirement, unless the person has a reasonable excuse. (3) The person must comply with the requirement, unless the person has a reasonable excuse. Maximum penalty—40 penalty units. (4) It is a reasonable excuse for an individual to fail to comply with the requirement if doing so might tend to incriminate the individual. (5) The power to question an employee includes power to question the employee out of anyone else's hearing. Power to require name and address 357.(1) An inspector may require a person, for this Act, to state the person's name and address. (2) When making the requirement, the inspector must warn the person it is an offence to fail to state the person's name or address, unless the person has a reasonable excuse. (3) The inspector may require the person to give evidence of the correctness of the stated name or address if the officer reasonably suspects the stated name or address is false. CeAD A HW NV 1113 1518 21 23 26 2831 s 358 250 s 358 Industrial Relations (4) A person must comply with a requirement under subsection (1) or (3), unless the person has a reasonable excuse. Maximum penalty—40 penalty units. Division 3—Powers to claim and deal with unpaid amounts Paying employee's wages etc. to inspector 358.(1) On an inspector's written demand, an employer must pay— (a) an employee's unpaid wages, including an unpaid tool allowance required to be paid under an order made under section 138;!01 and (b) for an eligible employee— (i) the unpaid contributions payable under a relevant industrial instrument for the employee by the employer to a complying superannuation fund; and (11) an amount based on the return that would have accrued had the contribution been properly paid to the fund. Maximum penalty—40 penalty units. (2) The payment must be made— (a) under subsection (1)(a)—to the inspector; or (b) under subsection (1)(b)— (i) into a complying superannuation fund in the time specified by the inspector; or (11) if not paid into a complying superannuation fund in the specified time—to the inspector. (3) A demand must not be made, or need not be complied with, if it relates or would relate to unpaid wages for which an order for recovery could not be made on an application under section 399.102 (4) An Industrial Magistrates Court that hears and decides a complaint 101 Section 138 (Order setting tool allowance) 102 Section 399 (Recovery of unpaid wages etc.) Ne on aA w 1114 1618 20 22 24 s 359 251 s 359 Industrial Relations against an employer for an offence against subsection (1)(a) or (b)— (a) apart from a penalty that it may impose; and (b) whether or not it finds the employer guilty; may order the employer to pay the employee the amount the court finds, on the balance of probabilities, is payable to the employee. (5) A court that finds an employer guilty of an offence against subsection (1)(b) may make, in relation to the employer, an order that a magistrate may make on an application made under section 408.103 (6) If an order is made, section 408 applies to it. (7) In this section— "employee" includes a former employee. Inspector's obligation for amounts paid on demand 359.(1) An inspector who is paid an amount mentioned in section 358 must immediately give the payer a receipt for the amount. (2) The receipt is a full discharge to the employer concerned for the amount stated in the receipt. (3) The inspector must pay the amount to— (a) for a superannuation contribution— (i) ifthe employee is employed by the employer—the approved superannuation fund; or (11) if the employee is no longer employed by the employer— (A) the approved superannuation fund; or (B) acomplying superannuation fund; or (C) a superannuation fund nominated by the employee; or (D) an eligible rollover fund; or (E) if the amount is less than the amount of total benefits that may revert to an employee under the 103 Section 408 (Recovery of unpaid superannuation contribution) CmOND NAR WwW WN eS eK Oo 14 16 18 20 222427 s 360 252 s 360 Industrial Relations Superannuation Industry (Supervision) Act 1993 (Cwlth)—the employee; or (b) otherwise—the employee. (4) If the inspector has not accounted for the amount within 30 days after receiving it, the inspector must pay the amount immediately to the department. (5) The department must account for the amount in the way required by subsection (3). (6) However, the department must pay the amount into the unclaimed moneys fund if— (a) the department can not locate the employee after making reasonable inquiries; or (b) the employee does not nominate a superannuation fund for subsection (3) if requested by an inspector to do so. (7) In this section— "employee" includes a former employee. "superannuation contribution" means— (a) anemployer's contribution to an approved superannuation fund to the credit of an eligible employee, which is unpaid; or (b) an amount mentioned in section 358(1)(b)(ii). Division 4—General Obstructing inspectors 360. A person must not obstruct an inspector in the exercise of a power, unless the person has a reasonable excuse. Maximum penalty—40 penalty units. aon Dune W NK 12 14 1619 24 s 361 253 s 363 Industrial Relations Impersonating inspectors 361. A person must not pretend to be an inspector. Maximum penalty—40 penalty units. Validity of inspector's conduct despite administrative contravention 362. The failure of an inspector to comply with section 352(2) or (3) or schedule 2, part 3, section 9104— (a) does not affect the lawfulness or effect of an act done or omission made by the inspector for this Act; but (b) makes the inspector liable to disciplinary action. CHAPTER 11—RECORDS AND WAGES PART 1—EMPLOYERS RECORDS Division 1—Definitions Definitions for pt 1 363. In this part— "authorised industrial officer" means a person who holds an authority in force under section 364. "record" includes a computer record if— (a) aprint-out or disk containing the contents of the record relevant to this part are separate from all other material in the print-out or disk; and (b) the print-out or disk gives the particulars required by this part 104 Section 352 (Powers) or schedule 2 (Appointments and procedures), part 3 (Inspectors), section 9 (Limitation on powers) w CMON AN 14 16 19 s 364 254 s 364 Industrial Relations accurately and in a way convenient for an inspection under this part. "time and wages record"— (a) for an industrial instrument employee—see section 366;105 and (b) for a non-industrial instrument employee—see section 367.106 Division 2—Authorised industrial officers Authorising industrial officers 364.(1) The registrar, on application by an organisation, may issue an officer or employee of the organisation with an authority under this section. (2) An authority may be subject to conditions stated in it. (3) A person who holds an authority that is in force (an "authorised industrial officer") may exercise the powers of an authorised industrial officer under this part. (4) The authority— (a) must be applied for in the way prescribed under a regulation; and (b) is in force for the term stated in it, unless it sooner stops being in force for a reason mentioned in paragraph (c); and (c) stops being in foree— (i) on its revocation; or (11) on its suspension, for the period of suspension; or (111) on its holder ceasing to be an officer or employee of the organisation that made the application or ceasing to be an authorised industrial officer acceptable to the organisation. (5) When an authority stops being in force under subsection (4)(c)(ii1), the organisation who applied for it— 105 Section 366 (Time and wages record—industrial instrument employees) 106 Section 367 (Time and wages record—non-industrial instrument employees) A BW NH 1215 17 192225 s 365 255 s 366 Industrial Relations (a) must notify the registrar within 14 days after the authorisation stops being in force; and (b) on the registrar's request, must surrender the authority to the registrar. Maximum penalty for subsection (5)—16 penalty units. Revocation and suspending industrial officer's authorisation 365.(1) This section applies if, on application by an employer, the commission considers an authorised industrial officer has— (a) breached a condition of the authorisation; or (b) contravened section 372(2);107 or (c) exercised the officer's power to enter in an unreasonable or vexatious way; or (d) made unreasonable, vexatious or inappropriate use of information obtained from inspection of a record made available because of the officer's power as an authorised industrial officer. (2) The commission may— (a) revoke the officer's authorisation; or (b) suspend the officer's authorisation for a period it considers appropriate; or (c) attach conditions to the officer's authorisation it considers appropriate. Division 3—Employers to keep certain records Time and wages record—industrial instrument employees 366.(1) An employer must keep, at a workplace in Queensland, a time and wages record that contains the following particulars for each industrial instrument employee— 107 Section 372 (Right of entry—authorised industrial officer) nA BW NYE 26 s 366 256 s 366 Industrial Relations (a) (b) (c) (d) (e) (f) the employee's full name and address; the employee's date of birth; for each pay period— (i) the employee's designation; and (11) the name of the industrial instrument or permit under which the employee is working; and (111) the number of hours worked by the employee during each day and week, the times at which the employee started and stopped work, and details of work breaks including meal breaks; and (iv) if the industrial instrument or permit provides for— (A) a weekly, daily or hourly wage rate—details of the wage rate for each week, day, or hour at which the employee is paid; or (B) piecework rates—details of the piecework performed and the rate at which payment is made to the employee; and (v) the gross and net wages paid to the employee; and (vi) details of any deductions made from the wages; and (vii) contributions made by the employer to a superannuation fund; if an employee's entitlement to long service leave is worked out under section 47!08—the total hours, other than overtime, worked by the employee since the start of the period to which the entitlement relates, worked out to and including 30 June in each year; details of sick leave credited or approved, and sick leave payments to the employee; the date when the employee became an employee of the employer; 108 Section 47 (Continuity of service—additional considerations for casual employees) CSCO MON DUN Ff W NY eS an See BRWN RP Ree NAW re \o ow NN re Oo NN pp BRON NN Hun NN on wn ow s 367 257 s 367 Industrial Relations (g) if appropriate, the date when the employee stopped employment with the employer; (h) other particulars necessary to show compliance with the hours of work, wage rates and general employment conditions provided under the instrument, permit or order under chapter 5, part 5.109 Maximum penalty—40 penalty units. (2) If the industrial instrument does not limit the employee's daily or weekly working hours, particulars of the employee's starting and finishing times each day need not be recorded, unless the instrument requires it. (3) The employer must keep the record for 6 years. Maximum penalty—40 penalty units. (4) On the employee's request, the employer must give the employee a certificate stating the total hours recorded under subsection (1)(d) for the employee, worked out to the previous 30 June. Maximum penalty—40 penalty units. (5) In this section— "industrial instrument employee" means a person who— (a) is employed by the employer; and (b) works under an industrial instrument or a permit. Time and wages record—non-industrial instrument employees 367.(1) An employer must keep, at a workplace in Queensland, a time and wages record that contains the following particulars for each non-industrial instrument employee— (a) for each pay period— (i) the employee's designation; and (11) the employee's wage rate; and (11) the gross and net wages paid to the employee; and 109 Chapter 5, part 5 (Wages and employment conditions for apprentices and trainees) Oo on NH npw Ne 11 1316182226 s 368 258 s 368 Industrial Relations (iv) details of any deductions made from the wages; (b) if an employee's entitlement to long service leave is worked out under section 47—the total hours, other than overtime, worked by the employee since the start of the period to which the entitlement relates, worked out to and including 30 June in each year. Maximum penalty—40 penalty units. (2) The employer must keep the record for 6 years. Maximum penalty—40 penalty units. (3) On the employee's request, the employer must give the employee a certificate stating the total hours recorded under subsection (1)(b) for the employee, worked out to the previous 30 June. Maximum penalty—40 penalty units. (4) In this section— "non-industrial instrument employee" means a person who— (a) is employed by the employer; and (b) works other than under an industrial instrument or a permit. Employee register 368.(1) An employer must keep an employee register that contains the following particulars for each employee— (a) the employee's full name and residential address; (b) for a person who is residing other than at the person's permanent residence when the person becomes an employee—the person's permanent residential address and the address of the person's other residence; (c) the calling in which the employee is engaged; (d) the date when the employee became an employee of the employer; (e) if appropriate, the date when the employee stopped employment with the employer. Maximum penalty—40 penalty units. BEOoo OX DD UEwWYP a ws KR WwW WN re Hn wn 19 2224 27 29 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 Records to be kept in English 21 369. A record or index kept under this part must be in the English 22 language. 23 Notation of wages details 24 370.(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 (11) overtime wage rate; (d) the ordinary hourly rate and the amount paid at that rate; (e) the overtime hourly rate and the amount paid at that rate; (f) the gross wages paid; (g) the net wages paid; (h) details of any deductions made from the wages; (i) the amount of contribution paid to a superannuation fund. Division 4—Power to inspect certain records Inspection of time and wages record—inspector 371.(1) An inspector may inspect a time and wages record at a workplace in the employer's business hours. (2) The employer must allow the inspector to inspect the record. Maximum penalty—40 penalty units. (3) Subsection (4) applies if— (a) an employer does not produce the record to the inspector; or (b) an inspector is obstructed during the inspection of the record; or (c) an inspector wants to inspect the record of a former employer. (4) The inspector may, by notice, require the employer or former employer to produce the record— (a) at— (i) astated workplace of the employer; or (11) for an employer who has no official workplace or a former employer—a reasonably convenient place nominated by the inspector; and (b) ata stated reasonable time. (5) If the employer or former employer does not produce the record as ona un fF WwW NY 12 141618 20 22 2427 s 372 261 s 372 Industrial Relations required by the notice, the employer or former employer is taken to have failed to keep the record, unless he or she has a reasonable excuse. (6) The notice may be given by post or in another way. Right of entry—authorised industrial officer 372.(1) An authorised industrial officer may enter a workplace at which an employer carries on a registered calling, during the employer's business hours, to exercise a power under section 373. (2) On entering the workplace, the officer must first— (a) notify the employer or the employer's representative of the officer's presence; and (b) produce the officer's authorisation, if required by the employer or representative. (3) An employer must not refuse an authorised industrial officer entry to the workplace if the officer complies with subsection (2). Maximum penalty—27 penalty units. (4) If the officer does not comply with subsection (2), the officer may be treated as a trespasser. (5) Subsection (2) does not apply if on entering the workplace, the officer discovers that neither the employer nor an employer's representative having charge of the workplace is present. (6) The officer may discuss any other matter with a member employee, or an employee who is eligible to become a member of the officer's organisation, during non-working time. (7) A person must not obstruct the officer exercising a power under subsection (6). Maximum penalty—27 penalty units. (8) The officer must not— (a) wilfully obstruct the employer, or an employee during the employee's working time; or (b) contravene a requirement of this section. Ne w orAnan fF 12 14 17 192225 27 29 s 373 262 s 373 Industrial Relations Maximum penalty—27 penalty units. (9) A person must not act as an authorised industrial officer under this section, unless the person holds a current authority. Maximum penalty—27 penalty units. Right to inspect and request information—authorised industrial officer 373.(1) This section applies to an authorised industrial officer who has entered a workplace under section 372. (2) The officer may inspect the time and wages record of — (a) amember employee; or (b) an employee who is eligible to become a member of the officer's organisation; or (c) an employee who is a party to a QWA or ancillary document, but only with the employee's written consent. (3) The employer— (a) must allow the officer to inspect the record for an employee mentioned in subsection (2)(a) or (b), unless the employee has made a written request to the employer that the record not be available for inspection by an authorised industrial officer or a particular authorised industrial officer; and (b) must not allow the officer to inspect the record for— (i) an employee who has made a written request to the employer that the record not be available for inspection by an authorised industrial officer or a particular authorised industrial officer; or (11) an employee mentioned in subsection (2)(c), unless the employee has given written consent. Maximum penalty—27 penalty units. (4) A person must not, by threats or intimidation, persuade or attempt to persuade an employee or prospective employee to make, or refuse to make, a written request to the employer or prospective employer that the record not BR WN Oo on HNwN 14 17192325 27 30 s 373 263 s 373 Industrial Relations be available for inspection by an authorised industrial officer. Maximum penalty—27 penalty units. (5) If the employer keeps particulars other than those mentioned in section 366110 in the record, the employer need not make the other particulars available for inspection. (6) The officer may discuss matters under this Act with the following persons during working or non-working time— (a) the employer; (b) amember employee, or an employee who is eligible to become a member of the officer's organisation. (7) The officer may discuss any other matter with a member employee, or an employee who is eligible to become a member of the officer's organisation, during non-working time. (8) A person must not obstruct the officer exercising a power under subsection (6) or (7). Maximum penalty—27 penalty units. (9) The officer must not— (a) wilfully obstruct the employer, or an employee during the employee's working time; or (b) contravene a requirement of this section. Maximum penalty—27 penalty units. (10) A person must not act as an authorised industrial officer under this section, unless the person holds a current authorisation. Maximum penalty—27 penalty units. (11) In this section— "member employee" means— (a) an employee who is a member of the authorised industrial officer's organisation; or (b) a former employee who was, or is, a member of the officer's 110 Section 366 (Time and wages record—industrial instrument employees) s 374 264 s 375 Industrial Relations organisation. "time and wages record" means the time and wages record required to be kept under section 366. Inspection of employee register and index—registrar 374.(1) The registrar may inspect an employer's employee register and index at the employer's workplace during the employer's business hours. (2) The employer must allow the registrar to inspect the record or index. Maximum penalty—40 penalty units. (3) The registrar may, by notice, direct the employer to give the register or index to a stated person, at a stated reasonable time and place, if— (a) the registrar requires a register or index for the taking of a ballot; or (b) the court or commission orders the register or index be made available for another purpose. (4) The employer must comply with the direction. Maximum penalty for subsection (4)—40 penalty units. Inspection of time and wages book—employees 375.(1) An employee may inspect the time and wages record for the employee's particulars relating to the 12 month period before the inspection. (2) At the employer's discretion, the employer may give the particulars to the employee in writing. (3) Unless the employer otherwise consents, the employee may inspect the record only— (a) once in any 12 month period; and (b) during the employer's business hours, but outside the employee's working time. w onan fs 12 14 16 19 21 23 26 s 376 265 s 376 Industrial Relations PART 2—WAGES AND OCCUPATIONAL SUPERANNUATION Division 1—Interpretation Definitions for pt 2 376. In this part— "assignment" includes disposition and charge, whether legal or equitable. "contracted work" means work that is, or is to be, performed under a contract or undertaking (whether written or unwritten). "employer", in division 2, means the person— (a) with whom a prime contractor has contracted to perform work; or (b) who has an obligation to a prime contractor to perform work. "fixed rate", in division 3,!!! means the rate fixed by an industrial instrument or a permit. "mine", in division 4,!!2 means a mine within the meaning of the Mines Regulation Act 1964. "mortgagee", in division 4, means a person entitled to payment under the security of an instrument of mortgage, crop lien, stock mortgage or bill of sale. "mortgagor", in division 4, means a person liable to pay a mortgagee under an instrument of mortgage, crop lien, stock mortgage or bill of sale. "prime contractor" means— (a) aperson (the "contractor") who contracts with someone else for the performance of work by the other person, or at whose request, or on whose credit or behalf and with whose knowledge and consent, work is performed; or 111 Division 3 (Paying and recovering wages) 112 Division 4 (Wages in rural and mining industries) C0 OY HD Nn BF 11 13 15 172024 26 8377 266 s 379 Industrial Relations (b) aperson, claiming under the contractor, whose rights are acquired after the work begins. "rate", in division 3, includes price. "subcontractor" means a person who contracts with an employer to perform work to discharge the employer's obligation to a prime contractor. References to service 377. A reference in this part to service on a person includes reference to service on the person's agent. Division 2—Protection for wages Wages are first charge on amounts payable to employer 378.(1) Wages payable to employees employed on any contracted work are, subject to the prime contractor's rights as prescribed under this Act, a first charge on the amount payable to the employer by the prime contractor for the work. (2) Until a notice of attachment under section 381113 is served on the prime contractor, the prime contractor may pay the employer all amounts payable for the contracted work. Assignment of amount payable ineffectual against claims for wages 379.(1) This section applies to an assignment by an employer of amounts that have become, or are to become, payable to the employer by a prime contractor for contracted work. (2) The assignment is of no effect as against wages payable, or to become payable, to employees employed by the employer in performance of the work. (3) Subsection (2) does not apply if the assignment is to the employees 113 Section 381 (Attachment notices) DAunf WwW NK 1315 172124 s 380 267 s 380 Industrial Relations employed by the employer in performance of the work concerned for wages payable, or to become payable, to them for performing the work. Amounts paid or payable to employer to be applied in payment of wages 380.(1) This section applies to amounts paid or payable to an employer by a prime contractor for contracted work. (2) The amount is not liable to be attached or charged, except by employees mentioned in subsection (5), until all wages payable, or to become payable, to the employees have been properly paid to them or have been secured to them in a way approved by a magistrate. (3) The employer must apply the amounts received, to the extent necessary, in payment of wages payable, or to become payable, to employees employed by the employer in performance of work for which the amounts are received. Maximum penalty—40 penalty units. (4) The employer must keep an accurate written account of the amounts received from the prime contractor, and of the way the amounts have been disbursed or disposed of. Maximum penalty—40 penalty units. (5) The employer must produce the account for inspection to an employee mentioned in subsection (3)— (a) whose wages are more than 8 days in arrears and are not paid when demanded; and (b) who asks to see the account. Maximum penalty—40 penalty units. (6) The employer must allow the employee to make a copy of the account. Maximum penalty—40 penalty units. Ne ort AN FW 1214 1721 23 25 27 s 381 268 s 382 Industrial Relations Attachment notices 381. An employee, whose wages remain unpaid for 24 hours after they are payable and have been demanded by the employee, may serve the prime contractor with an attachment notice in the approved form. Effect of attachment notice 382.(1) This section applies if an attachment notice is served on the prime contractor. (2) The prime contractor must retain from the amounts payable, or to become payable, by the prime contractor to the employer for the contracted work an amount sufficient to satisfy— (a) the claim for wages specified in the notice; and (b) all further claims for wages specified in notices of attachment served on the prime contractor within 7 days after the service of the first notice. (3) At the end of the 7 day period, the amount claimed as wages and specified in the notices is attached in the prime contractor's hands, and must be kept by the prime contractor until— (a) a magistrate orders to whom, and in what way, the amount must be paid; or (b) the prime contractor deals with the amount under subsection (4); or (c) the notices are withdrawn. (4) After being served with a notice, the prime contractor may pay the amount to which the notice relates to a clerk of the Magistrates Court until— (a) amagistrate makes an order in relation to the amount; or (b) the notice is withdrawn. (5) The payment— (a) must be accompanied by the notice or a copy of it; and (b) is a full discharge of the prime contractor from liability for the amount paid and costs of proceedings for the amount. RwWN s 383 269 s 383 Industrial Relations (6) An amount paid to a clerk of the Magistrates Court may be paid out only— (a) on the order of a magistrate; or (b) ifthe relevant attachment notice is withdrawn. (7) A prime contractor who fails to keep, or to pay under subsection (4), an amount required by subsection (2) or (3) to be kept is personally liable to each employee in the amount of the employee's claim for wages stated in the employee's attachment notice served on the prime contractor. (8) An employee who has served an attachment notice on a prime contractor may withdraw the notice by giving notice of withdrawal to— (a) the prime contractor; and (b) the employer to whom amounts are payable, or are to become payable, by the prime contractor. Orders for payment by prime contractor or clerk of the court 383.(1) Subsection (2) applies if an employee who served an attachment notice on a prime contractor obtains judgment from a magistrate against the employer for the claim for wages. (2) The magistrate may order the judgment be satisfied, wholly or partly, by payment of a stated amount— (a) from amounts paid to the clerk of the Magistrates Court under section 382(4); or (b) if no amount was paid to the clerk under section 382(4) or the amount paid was not enough to cover the amount ordered to be paid by the magistrate—by the prime contractor. (3) In deciding the amount that should be ordered to be paid for an employee's claim, the magistrate must take into account the existence of claims for wages of other employees of the employer of which the magistrate has knowledge. (4) Subject to any appeal against the magistrate's decision, the clerk or prime contractor must pay the amount stated in the relevant order to the employee from the amounts— (a) paid to the clerk under section 382(4); or 1619 21 232628 30 s 384 270 s 384 Industrial Relations (b) attached and kept in the hands of the prime contractor. (5) Payment must be made within 21 days after a copy of the order is served on the clerk or prime contractor. (6) If an appeal is started and notice of it is served, the clerk or prime contractor must continue to keep or hold the amounts from which payment is to be made until the appeal is finally decided or discontinued. (7) The prime contractor is not liable to a greater extent than the amount actually payable by the prime contractor to the employer when— (a) the order is served; or (b) payment is made under the order; whichever is the greater. Employees to be paid according to when attachment notices are served 384.(1) An amount attached in the hands ofa prime contractor, or paid to a clerk of the Magistrates Court, is to be paid in priority according to the order of the service of the relevant attachment notices. (2) However, for this section, all notices served within 7 days after the service of the first notice are— (a) taken to have been served simultaneously with the first notice; and (b) accorded equal priority to distribution of the amount attached or paid. (3) The claims for wages of all employees who are taken to have served notices simultaneously must be paid in full, unless the amounts attached in the hands of the prime contractor or held by the clerk are insufficient for the purpose. (4) If the amounts are insufficient for the purpose, the claims are to abate in equal proportions among themselves. (5) Subsection (1) is subject to sections 381 to 383.114 114 Section 381 (Attachment notices) Section 382 (Effect of attachment notice) Section 383 (Orders for payment by prime contractor or clerk of the court) Oo won Hnnst WN eS eK Oo 1417 20 2224 26 s 385 271 s 386 Industrial Relations Employee may sue prime contractor 385.(1) Subsection (2) applies if— (a) aprime contractor is served with a copy of the magistrate's order made under section 383(2);!15 and (b) the amount stated in the order and payable by the prime contractor is not paid in accordance with the order. (2) The employee in whose favour the order is made may, in an Industrial Magistrates Court and in the employee's own name, sue the prime contractor for the amount stated in the order and unpaid, by way of any action or proceedings the employer could have brought against the prime contractor as if— (a) there had been no attachment of amounts under this part; and (b) the amounts required by the attachment under section 381116 to be kept were payable to the employer and unpaid. (3) The employee's entitlement is subject to the prime contractor's right to set off against the employee's claim all amounts— (a) properly paid by the prime contractor to the employer under section 378(2);!17 and (b) the employer was, when the notice was served on the prime contractor, liable to pay the prime contractor for a breach, or non-performance, of the contract or undertaking in performance of which the relevant work is or is to be performed. Cessation of attachment not to prejudice prime contractor 386.(1) This section applies if an order under section 383118 stops operating because— (a) of satisfaction of the employee's claim; or 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) Foweonrn nm KRW N Se See N eile' Rw eR num Lion' on N NR YVNRSSs 25 s 387 272 s 389 Industrial Relations (b) it is set aside. (2) A prime contractor who has paid an amount in accordance with the order before receiving notice of the satisfaction or setting aside is not to be prejudiced in relation to the payment because the order stopped operating. Discharge by employee for payment received 387. An employee who receives an amount for a claim for wages to which an order under section 383 relates must sign a discharge for the amount, in the approved form if asked by the person making the payment. Remedy of subcontractor's employees 388.(1) If an employer has let the performance of work to a subcontractor, an employee employed by the subcontractor in that work has the same rights and remedies for a claim for wages against the employer under this division as an employee of the employer has against a prime contractor. (2) For subsection (1), in construing this division (other than section 376119 and this section) 'employer' is substituted for 'prime contractor' and 'subcontractor' is substituted for 'employee'. Prime contractor's right to reimbursement 389.(1) This section applies if— (a) a prime contractor has paid a claim for wages payable to an employee of the employer, in satisfaction of the prime contractor's obligations under this division; and (b) either of the following happens— (i) for an employer who is a_ corporation—winding-up proceedings are commenced; (11) for an employer who is an individual—the employer's assets are distributed in insolvency of the employer or in a composition with the employer's creditors. 119 Section 376 (Definitions for pt 2) RwWN eorAID WN 11131619 2125 27 s 390 273 s 391 Industrial Relations (2) The prime contractor is taken to have a claim for wages against the employer's assets, which is a preferential claim, as if the prime contractor were an employee of the employer to whom wages were payable by the employer. (3) This section applies only to the extent that a State law may validly apply to the distribution of assets. Magistrate may hear claim for wages ex parte 390. A magistrate may hear and decide proceedings for a claim for wages in the absence of a person to whom the originating process is directed on proof, on oath or affirmation, of the service of the process. Division 3—Paying and recovering wages Wages etc. to be paid without deduction 391.(1) If an employer employs an employee to perform work for a fixed rate, the employer must pay the employee the fixed rate without deduction, other than a deduction authorised by— (a) arelevant industrial instrument; or (b) this division; or (c) the employee's written consent. (2) An employer must pay an apprentice or trainee the fixed rate without deduction, other than a deduction mentioned in subsection (1)(a), (b) or (c) until— (a) the apprentice or trainee is suspended or the apprentice's or trainee's training agreement is cancelled; or (b) the State Training Council has allowed the employer to stand down the apprentice or trainee under the Vocational Education, Training and Employment Act 1991. (3) If— (a) an employer employs an employee to perform work for a rate agreed between the employer and the employee; and DAN BPWNHE 14172023 26 29 s 392 274 s 392 Industrial Relations (b) either— (i) the rate for the work is not fixed by a relevant industrial instrument or permit; or (11) the fixed rate is less than the agreed rate; the employer must pay the employee the agreed rate without deduction, other than a deduction authorised by this division or the employee's written consent. (4) A contract or authority is void to the extent it provides for a deduction to be made from wages in contravention of this section. Paying apprentices or trainees for course time 392.(1) Time spent by an apprentice or trainee in undertaking an approved course of instruction or qualification, up to the maximum number of hours specified in the approval, is taken to be— (a) time worked for the employer; and (b) ordinary working hours when calculating the apprentice's or trainee's wages and employment conditions. Example of paragraph (b)— A trainee is required to work 38 ordinary working hours a week under an award. In a particular week, the trainee spends 30 hours working for the employer and 10 hours at college. The trainee is entitled to be paid 38 hours ordinary time (which includes 10 hours ordinary time for the time spent at college) and 2 hours overtime. (2) Subsection (1) applies irrespective of the way the course is delivered. Examples of ways specified course of instruction can be delivered— Block release, day release, workplace-delivered training or correspondence. (3) Despite subsection (1), wages are not payable for time spent by an apprentice or trainee undertaking an approved course of instruction when the apprentice or trainee is— (a) astudent— (i) studying at a secondary school or tertiary institution; and (11) who has entered into an arrangement about the CH NADN FF WYP 1216 1921242730 s 393 275 s 393 Industrial Relations apprenticeship or traineeship with the school or institution and the employer; or (b) the subject of a decision of the approving authority under section 162 or 211. (4) In this section— "approved course of instruction or qualification" means a course of instruction or qualification, of a specified duration, approved under the Vocational Education, Training and Employment Act 1991. Paying wages 393.(1) An employee's wages must be paid at least monthly to the employee. Maximum penalty—16 penalty units. (2) The wages must be paid— (a) in Australian currency; or (b) with the employee's written consent— (i) wholly or partly to the employee's credit in an account with a financial institution nominated by the employee; or (ii) by cheque of a type mentioned in subsection (5), draft, money order or electronic fund transfer; or (c) im another way allowed under a relevant industrial instrument. Maximum penalty—16 penalty units. (3) If— (a) wages are to be paid in cash; and (b) the amount is not a multiple of 5c; the amount may be rounded to the nearest amount that is a multiple of Sc, even if this involves a reduction. (4) If wages are to be paid other than in cash, they are to be paid without deduction of any charge made because of the way payment is made. Maximum penalty—16 penalty units. CID A Bw NE 11 1315 17 19 212326 28 s 394 276 s 394 Industrial Relations (5) Except with the employee's written consent, a cheque by which wages are paid— (a) must be payable to a bearer on demand; and (b) must not be crossed. (6) If wages are payable to an employee when the employee stops employment with the employer, the wages must be paid to the employee within 3 days after the employment stops, unless— (a) section 395 applies; or (b) the employer has complied with an inspector's demand under section 358.120 Maximum penalty—40 penalty units. (7) If an employee accepts for wages a cheque, draft or money order that is dishonoured, the employee may recover from the employer by action in a court of competent jurisdiction as a debt payable to the employee— (a) the wages payable; and (b) a reasonable amount for damages suffered by the employee because of the dishonour. (8) A contract or authority is void to the extent it provides for payment of wages other than under this section. Contract not to stipulate mode of spending wages 394.(1) Subject to this division, an employer is not, directly or indirectly, to impose as a condition, express or implied, of an employee's employment, a provision about the place where, way in which, or person with whom an employee's wages, or a part of the wages, are to be spent. Maximum penalty—16 penalty units. (2) An employer must not dismiss an employee because the employee's wages, or a part of the wages, are spent, or not spent, at a place, in a way, or with a person.!21 120 Section 358 (Paying employee's wages etc. to inspector) 121 See section 73 (When is a dismissal unfair). CoO DW NDYN FW NK eS an eli andilend RwWN Nn Ree na ee \o 2224 27 s 395 277 s 396 Industrial Relations Payment of unpaid wages if employee's whereabouts unknown 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 Overpaid wages 23 396.(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 periods. (3) Deductions under subsection (2)— (a) must be commenced within 1| year after the payment; and (b) may extend over a period of 6 years after the payment. (4) A deduction can not be made in an amount that would reduce the wages payable to the employee for a pay period to less than an amount prescribed under a regulation. Deduction of wages in lieu of notice of termination 397.(1) This section applies if— (a) an industrial instrument requires an employee to give notice of termination of employment for a specified period; and (b) an employee ceases the employment without giving the employer the notice for the specified period. (2) The employer may deduct from the employee's wages an amount stated by the instrument to be forfeited or payable to the employer if notice of termination is not given for the period specified. Minor may recover unpaid wages 398. A minor may bring proceedings under this Act for the minor's wages in the same way, and to the same extent, as if the minor were 18 years. Recovery of unpaid wages etc. 399.(1) An application may be made to a magistrate for an order for payment of— (a) an employee's unpaid wages; or (b) an apprentice's unpaid tool allowance under section 138;!24 or 124 Section 138 (Order setting tool allowance) CID WD FW NY 12 14 162024 26 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 Enforcement of magistrate's order 400.(1) This section applies to an order of a magistrate for payment by an employer of— (a) wages found to be payable; or (b) an unpaid tool allowance required to be paid under an order made under section 138(5);!27 or (c) contributions to an approved superannuation fund found to be payable; or (d) costs in proceedings relating to unpaid amounts mentioned in paragraph (a) or (b). (2) The order is enforceable under the Justices Act 1886 as an order for payment of money made by justices under that Act. (3) If an order is made, the amount ordered to be paid (including costs) is a debt payable to the person, in whose favour the order is made, by the employer. (4) The order may be filed in the registry of a Magistrates Court under the Magistrates Courts Act 1921, and on being filed— (a) is taken to be an order properly made by a Magistrates Court; and (b) without limiting subsection (2), may be enforced as an order made by a Magistrates Court. Division 4—Wages in rural and mining industries Wages recoverable against mortgagee if mortgagor defaults 401.(1) This section applies if an employee— (a) has performed work— (i) incultivating, or otherwise improving, land that is subject to a mortgage; or (11) in cultivating, or otherwise in connection with, a crop that is 127 Section 138 (Order setting tool allowance) on DRnun FF WN 12 1417 20 2326 s 401 281 s 401 Industrial Relations subject to a lien; or (ii) relating to animal or vegetable matter prepared or manufactured by machinery that is subject to a bill of sale; or (iv) in tending, feeding, driving, or otherwise in connection with, stock that is subject to a mortgage; and (b) is prevented from, or hindered in, recovering wages for the work from the mortgagor as employer because— (i) the mortgagee has entered into, or taken possession of the land, crop, machinery or stock, or is taken to have done so; or (11) the mortgagee has sold the land, crop, machinery or stock, under the mortgagee's security; or (111) a cheque, draft or order drawn by the mortgagor on the mortgagee is dishonoured by the mortgagee. (2) The mortgagee is taken to be the employee's employer for the performance of the work. (3) The mortgagor is taken, in engaging the employee for the work, to have acted as the mortgagee's authorised agent. (4) Subsections (2) and (3) do not affect appropriate accounting as between the mortgagor and the mortgagee. (5) A mortgagee is not liable for the employee's wages that have become payable more than 6 months before whichever of the following events happens first— (a) the employee first applies to the mortgagee for payment of the wages; (b) the mortgagee takes possession of, or sells, the land, crop, machinery or stock. (6) The mortgagee's liability under this section— (a) is additional to the mortgagor's liability for the employee's wages; and (b) does not affect rights, liabilities, functions and powers as between the mortgagor and employee. s 402 282 s 403 Industrial Relations (7) An employee does not lose a right to bring proceedings against the mortgagee for unpaid wages, and costs of the proceedings, if the employee— (a) brings proceedings against a mortgagor for wages, whether or not the employee obtains an order for payment against the mortgagor; and (b) because of a reason in subsection (1)(b), fails to obtain payment of the wages, or part of the wages, from the mortgagor. Distress warrant levied on property of mortgagor or mortgagee 402.(1) A warrant of distress issued to enforce an order for payment of an employee's wages for work performed in connection with property mentioned in section 401(1), as far as the land, crop, machinery or stock is concerned— (a) authorises distress on and sale of the mortgagee's property and the mortgagor's property; and (b) may be executed on the mortgaged land or the encumbered crop, machinery, or stock even though the mortgagee has entered into or taken possession of the land, crop, machinery or stock, or is taken to have done so, under the mortgagee's security. (2) An amount paid by, or recovered from, the mortgagee for the wages— (a) is taken to be an advance made by the mortgagee to the mortgagor under the mortgagee's security; and (b) may be recovered by the mortgagee under the security. (3) In this section— "land" includes the fixtures on the land. Application of ss 401 and 402 to mines 403.(1) Sections 401 and 402 apply, with necessary changes, if an employee— (a) has performed work in or about— aon Hnnst WwW NR 1113 15 1719 21 23 26 29 s 404 283 s 404 Industrial Relations (i) amine, including its fixtures, that is subject to a mortgage; or (11) machinery or apparatus, used in or for a mine, that is subject to a bill of sale; and (b) is prevented from, or hindered in, recovering wages for the work from the mortgagor as employer because— (i) the mortgagee has entered into, or taken possession of, the mine, machinery or apparatus, or is taken to have done so; or (11) has sold the mine, machinery or apparatus, under the mortgagee's security; or (111) a cheque, draft or order drawn by the mortgagor on the mortgagee is dishonoured by the mortgagee. (2) However, a mortgagee is not liable for the employee's wages that have become payable more than | month before whichever of the following events happens first— (a) the employee first applies to the mortgagee for payment of the wages; (b) the mortgagee takes possession of, or sells, the mine, machinery or apparatus. (3) In this section— "wages" for work includes earnings for work. Priority in payment of wages earned in mine 404.(1) An amount of wages, of not more than 4 weeks, payable to an employee for employment in or about a mine— (a) isa first charge on the claim or land in or on which the mine is situated; and (b) in the winding-up of a corporation formed for or engaged in working the mine, must be paid in priority to all other debts, secured or unsecured, of the corporation. (2) Subsection (1)(a) applies even though— (a) the claim or land is mortgaged or charged to secure payment of other amounts; or KR Wp eee SL BRWN -§ BO ©O% ADH uw ee ew on HNwn NO Fe Co Oo 23 25 2731 s 405 284 s 405 Industrial Relations (b) there is a lien on the claim or land. (3) Subsection (1)(b) applies only to the extent that a law of the State may validly apply to the distribution of assets in a winding-up. (4) If a first charge exists under subsection (1)(a), the amount charged includes— (a) all amounts awarded by a court as costs against an employer in proceedings brought by or for an employee to recover the wages mentioned in the subsection; and (b) the amount of costs, charges and expenses reasonably incurred in attempting to enforce an order or orders for payment of the wages. (5) The debts that are a first charge under subsection (1)(a) or are to be paid in priority under subsection (1)(b)— (a) rank equally among themselves; and (b) if necessary, abate in equal proportions among themselves. (6) In this section— "wages" for work includes earnings for work. Division 5—Occupational superannuation Agreement about superannuation fund 405.(1) This section applies if an industrial instrument requires an employer to pay contributions to a specified superannuation fund. (2) Despite the instrument, the required contributions may be paid to a complying superannuation fund agreed to by the employer and employee. (3) The agreement must be written and signed by the employer and employee. (4) A person must not coerce someone else to make an agreement mentioned in subsection (3). Maximum penalty for subsection (4)—40 penalty units. BR WN Se oe ee ee nA BB Wh rFow eoNana WN Se nN aw 21 23 25 27 s 406 285 s 407 Industrial Relations Contributing occupational superannuation 406.(1) An employer must contribute, for eligible employees, to the approved superannuation fund at the level required by the relevant industrial instrument. Maximum penalty—40 penalty units. (2) The offence is a continuing offence that may be charged in 1 or more complaints for 1 or more periods. (3) An employer who contributed— (a) to a complying superannuation fund at a level required by a relevant industrial instrument; but (b) to a fund that is not the approved superannuation fund; does not commit an offence unless the employer has knowingly contravened the instrument. (4) If the commission makes an order under section 407(2), an employer who fails to contribute in accordance with the order is taken to fail to make the contribution under the relevant industrial instrument, whether or not the order was directed to that employer. (5) The court by which a defendant is found guilty of an offence against subsection (1) may make, in relation to the defendant, an order that a magistrate is authorised by section 408!28 to make on an application under that section, and that section applies and extends accordingly. Power to order contribution to particular fund 407.(1) This section applies if— (a) an industrial matter relates to an allegation that an employer has been, or is, contributing to a complying superannuation fund for employees at a level required by a relevant industrial instrument; but (b) the fund is not the approved superannuation fund. (2) The commission, of its own initiative or on application by an 128 Section 408 (Recovery of unpaid superannuation contribution) COW ND NH PWN eS an lon' wn Pee NYaAWNFA NNR KF COO we 23 2629 s 408 286 s 408 Industrial Relations inspector, organisation or employee concerned, may— (a) decide which complying superannuation fund the employer should have been, or should be, contributing to comply with the relevant industrial instrument; and (b) order the employer to contribute accordingly. (3) If the commission considers it appropriate, the commission may make its order to operate from the date when a particular employee became eligible for payment of contribution to the fund decided by the commission. (4) The commission may recognise all or any of the contribution made by an employer to a complying superannuation fund up to and including the date of the commission's decision as having met the requirements, or a part of them, of a relevant industrial instrument, relating to employers' contribution to the approved superannuation fund. Recovery of unpaid superannuation contribution 408.(1) An application may be made to a magistrate for an order for payment of contributions to the approved superannuation fund payable for an eligible employee that are unpaid. (2) The application may be made by— (a) an employee who is an eligible employee on whose behalf an employer is required to contribute to an approved superannuation fund; or (b) an employee organisation of which the employee is a member, acting for the employee; or (c) an inspector. (3) The application must be made within 6 years after the amount claimed became payable. (4) On hearing the application, the magistrate must order the employer to pay the employee— (a) the amount the magistrate finds to be payable and unpaid to the employee within the 6 years before the date of the application; and (b) an amount the magistrate considers appropriate, based on the return that would have accrued in relation to the contribution had it 162023 26 28 30 32 s 409 287 s 409 Industrial Relations been properly paid to the fund. (5) The magistrate may award costs to either party in an amount assessed by the magistrate. (6) The magistrate may only make an order about the payment of the amount that the commission may make under section 278(9) or (10).129 (7) A person can not make an application under this section if an application has been made under section 278 for the same matter. CHAPTER 12—INDUSTRIAL ORGANISATIONS PART 1—PRELIMINARY Definitions for ch 12 409. In this chapter— "accounts" see section 555. "amalgamation" means the carrying out, under part 15, of arrangements for 2 or more organisations, associations or corporations, under which— (a) an organisation is, or 2 or more organisations are, to be deregistered; and (b) members of the organisation or organisations to be deregistered are to become members of another organisation, whether existing or proposed. "association" means an unincorporated body or entity formed or carried on to protect and promote its members' interests. "audit report" see section 558(1)(b). "ballot records", for an election or ballot, means any ballot envelopes, 129 Section 278 (Power to recover unpaid wages and superannuation contribution etc.) ND unt Wn 111417 1922 24 s 409 288 s 409 Industrial Relations papers or other records that have been prepared or used for the election or ballot. "branch" of an organisation means a constituent part of the organisation, however called, that has a management committee or officers. "casual vacancy" means a vacancy in an office because of the death, removal or resignation from office of the office holder. "committee meeting", for an organisation, means a meeting of its management committee. "corporation" see section 410. "counterpart federal body" see section 411. "defect" includes an error, irregularity, nullity and an omission. "demarcation dispute undertaking" from an organisation or applicant for registration means an undertaking from it to avoid demarcation disputes that might otherwise arise from an overlap between its eligibility rules and another organisation's eligibility rules. "deregistered organisation" means a former organisation whose registration has been cancelled. "deregistration", for an organisation, means the cancellation of its registration. "election" means an election for an office in an organisation or branch. "electoral commission" means the Electoral Commission of Queensland. "electoralofficer" means the electoral commissioner, the deputy electoral commissioner or a member of the staff of the electoral commission. "eligibility rules" of an organisation or applicant for registration means its rules about eligibility for its membership. "employee organisation" means an organisation of employees. "employer organisation" means an organisation of employers. "federal organisation" means an organisation under the Commonwealth Act. "file" a document means file it with the registrar. "financial hardship payment", for an organisation, means a payment by Oo won nn RW Ne eS eK Oo RP Re Ree nA WN ee Na ee \o No N re SO NN wh NN ns Ny N nN aw NYw \Oo wi WwW - SO s 409 289 s 409 Industrial Relations the organisation to relieve a member or the member's dependant from severe financial hardship. "general meeting" of an organisation or applicant for registration means a general meeting of its members. "irregularity" includes— (a) acontravention of an organisation's rules; and (b) for an election or ballot, an act or omission by which the following is, or is attempted to be, prevented— (i) the full and free recording of votes by all persons who may record a vote and by no other persons; (i1) a correct working out or declaration of the results of the voting. "management committee", for an organisation, branch or applicant for registration, means the body of persons, however called, that manages its affairs. "members register", for an organisation, means the current register of its members required to be kept under section 544. "membership subscription", for an organisation, means a subscription, due or other amount payable under its rules for membership or membership renewal. "model election rules" means the model election rules under section 454. "office", for an organisation, branch or applicant for registration, see section 412. "officer" of an organisation, branch or applicant for registration means a person who holds an office in the organisation or branch or in the applicant association or corporation. "officers register", for an organisation, means the current register of its officers required to be kept under section 544. "ordinary election" means an election held under rules under part 4. "organisation" means— (a) a body registered under this chapter as an organisation; or (b) an association of employers or employees, the continuity of CY DW BW NYE 12 1417 1923 26 28 3032 s 410 290 s 410 Industrial Relations whose registration as an industrial organisation or union under an Act is continued or preserved by this Act. "postal ballot" means a ballot by which— (a) a ballot paper is sent by prepaid post to each person who may vote in the ballot; and (b) facilities are provided for returning the completed ballot paper by post by each voter without cost to the voter. "president" of an organisation, branch or applicant for registration means— (a) its president; or (b) its chief executive; or (c) another officer, however called, who has the functions of its president or chief executive. "register", when used as a noun, means the register of industrial organisations the registrar keeps under section 426(1). "registration" means registration under this chapter as an organisation. "required number" of members of an organisation means the number of its members that is the lesser of 5% of the membership or 250. "secretary", of an organisation, for the signing of a document to be filed means— (a) the person who holds the office of secretary in the organisation; or (b) if no-one holds the office of secretary of the organisation, the person authorised by the organisation under its rules to sign documents for the organisation. "withdrawal" means the withdrawal, under part 15, of a constituent part from an amalgamated organisation. Meaning of "corporation" for ch 12 410.(1) In this chapter, "corporation" means— COMO NHR APR W NE 11 13 15 18 20 2326 28 s411 291 s411 Industrial Relations (a) acorporation under the Corporations Law, section 57A;130 or (b) an incorporated association under the Associations Incorporation Act 1981; or (c) a body incorporated under a law of the State, another State or the Commonwealth, other than— (i) a federal organisation; or (i1) an organisation registered under a law of another State about the registration of industrial organisations or unions. (2) However, an organisation incorporated under section 423 is not a corporation. 131 Meaning of "counterpart federal body" for ch 12 411.(1) In this chapter, a federal organisation or a branch or part of a federal organisation ("federal body") is a "counterpart federal body" of an organisation ("State body") if— (a) asubstantial number of members of the State body are— (1) members or eligible to be members of the federal body; or (11) engaged in the same work, in aspects of the same work or in similar work as members of the federal body; or (111) employed in the same or similar work by employers engaged in the same industry as members of the federal body; or (iv) engaged in work or in industries for which there is a community of interest between the federal body and the State body; or (b) there is an agreement in force under the Commonwealth Act, section 202,132 between the federal body and the State body. 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 SO OY DA WH WY e 1316 18 202326 s 412 292 s 412 Industrial Relations (2) If subsection (1)(a) or (b) applies to more than | State body for the same federal body, the federal body is a counterpart federal body of each of the State bodies. Meaning of "office" for ch 12 412. In this chapter, "office", for an organisation, branch or applicant for registration ("industrial association"), means the following— (a) (b) (c) (d) (f) the office of president, vice-president, secretary or assistant secretary of the industrial association; the office of a member of the management committee of the industrial association; the office of a voting member of any other collective body that has power to do any of the following— (i) manage the affairs of the industrial association; (11) decide the policy of the industrial association; (111) make, amend or repeal the rules of the industrial association; (iv) enforce the rules of the industrial association; an office for which the holder may under the rules of the industrial association manage the association's affairs and enforce its rules, other than a holder only participating under directions of a collective body or other person to implement— (i) _ the association's existing policy; or (11) decisions concerning the association; an office for which the holder may under the industrial association's rules decide the association's policy and make, amend or repeal its rules; the office of a person holding, whether as trustee or otherwise, the property of the industrial association or property the association has a beneficial interest in. Ne w aon nm AK 12 1416 1820 22 2427 s 413 293 s 415 Industrial Relations PART 2—REGISTRATION Division 1—Registration applications Application is to commission 413. A registration application may only be made to the commission. Who may apply 414.(1) An association may apply for registration as an employee or employer organisation. (2) A corporation may only apply for registration as an employer organisation. General requirements for applications 415.(1) A registration application must be— (a) signed by the applicant's president and secretary; and (b) accompanied by the following— (i) the proposed address under section 425(1) of the applicant's proposed registered office; (11) 2 copies of the rules the applicant proposes to have as an organisation; (11) a copy of the register that will, on its registration, be the applicant's officers register; (iv) a list of any trustees of the applicant; (v) the appropriate fee under the rules; and (c) filed. (2) Notice of the application must be published by the applicant in the way prescribed under a regulation. Com ND w 1113 15 17 19 2124 s 416 294 s 417 Industrial Relations Additional requirements for employee organisation application 416. If the application is for registration as an employee organisation, it must be accompanied by the following— (a) a copy of a resolution in favour of the applicant's registration passed under the applicant's rules— (i) by a majority of its members present at a general meeting; or (11) in another way allowed under the applicant's rules; (b) a list stating the applicant's members on the day the resolution was made; (c) a list stating the callings of its members or callings to which its eligibility rules relate; (d) a list stating each locality in which its members exercise their callings. Additional requirements for employer organisation applications 417.(1) If the application is for registration as an employer organisation, it must be accompanied by the following— (a) a list stating the name of, and the place or places where business is carried on by, each employer member of the applicant; (b) ifthe applicant has more than 1 member, a copy of a resolution in favour of registration of the applicant passed under the applicant's rules— (i) bya majority of the employer members; or (11) in another way allowed under the applicant's rules; (c) a list stating the callings in which employees are employed by the employer members; (d) astatement of particulars of — (i) the control of the applicant's property; and (11) investment of its funds, as distinct from the property and funds of the members of the applicant. (2) In this section— BR WN = ee Fo OA Nn uN ion' wn 16 18 2023 25 27 29 s 418 295 s 419 Industrial Relations "member" includes shareholder. "rules" includes constitution and memorandum and articles of association. Division 2—Hearing of registration applications Right to object 418.(1) A person may object to a registration application if the person— (a) has an appropriate interest in the matter; and (b) gives notice to the commission in the time and way prescribed under a regulation. (2) The commission must hear the objection in the way prescribed under a regulation. Registration criteria for all applications 419.(1) The commission may grant the application only if satisfied of the following— (a) the applicant exists to further or protect its members' interests; (b) the applicant would, if registered, comply with the obligations of an organisation under this chapter and would not contravene chapter 4;133 (c) the rules the applicant proposes to have as an organisation— (i) comply with parts 3 and 4;134 and (11) are not contrary to this Act or another law; (d) the applicant's name— (i) is not the same as an organisation's name or so similar to an organisation's name as to be likely to cause confusion; and (ii) will, if the applicant is registered, comply with 133 Chapter 4 (Freedom of association) 134 Parts 3 (General contents of rules) and 4 (Election rules) SCO ON HD WN Bp 13 161921 23 s 420 296 s 420 Industrial Relations (e) section 424;135 registration of the applicant would not be inconsistent with the objects of this Act. (2) For subsection (1)(e), the commission must consider whether recent conduct by the applicant or its members would have been an industrial conduct ground under part 16136 if the applicant had been registered when the conduct happened. Additional criteria for registration as employee organisation 420.(1) If the application is for registration as an employee organisation, the commission must also be satisfied of the following— (a) (b) (c) (d) the applicant is free from control by, or improper influence from, an employer, an employer association or an employer organisation; either— (i) there is no organisation to which the applicant's members might belong; or (11) there is no organisation to which the members could conveniently belong that would effectively represent them in a way consistent with the objects of this Act; or (111) the applicant has given the commission an appropriate demarcation dispute undertaking; the applicant has at least 20 members who are employees; the applicant's members who are not employees are— (i) officers of the applicant; or (11) independent contractors who, if they were employees performing work of the kind that they usually perform as independent contractors, would be employees eligible for membership of the applicant. 135 Section 424 (Registered name of organisation that is not a corporation) 136 Part 16 (Deregistration) YAWN WN 1216 1821 232628 s421 297 s 422 Industrial Relations (2) Despite subsection (1)(c) or (d), the commission may grant the application if satisfied special circumstances justify the applicant's registration. Additional criteria for registration as employer organisation 421.(1) If the application is for registration as an employer organisation, the commission must also be satisfied of the following— (a) the applicant has employer members; (b) either— (i) there is no organisation to which the applicant's members might belong; or (11) there is no organisation to which the members could conveniently belong that would effectively represent them in a way consistent with the objects of this Act; (c) the applicant effectively represents its employer members in a way that is consistent with the objects of this Act; (d) each member of the applicant who is not an employer— (i) isan officer of the applicant; or (11) was an employer on becoming a member; or (11) carries on a business; (e) the applicant's members have, in total, employed a monthly average of at least 20 employees in the 6 months before the application was made. (2) Despite subsection (1)(e), the commission may grant the application if satisfied special circumstances justify the applicant's registration. Division 3—Grant of application Grant of application 422.(1) If the commission grants a registration application, the applicant immediately becomes an organisation. wn onan fs 1215 1719 2124 28 s 423 298 s 424 Industrial Relations (2) The rules for which the application was granted take effect as the rules of the organisation. (3) The registrar must, as soon as practicable— (a) enter the organisation's name and the day it became an organisation in the register; and (b) give the organisation a certificate of registration in the approved form; and (c) register the applicant's rules. Incorporation on registration if not already incorporated 423. If an organisation was not a corporation immediately before it became an organisation, on registration it— (a) is incorporated under its registered name; and (b) has perpetual succession; and (c) may purchase, take on lease or hire, hold, sell, lease, let, mortgage, exchange, accept or dispose of by way of gift, own, possess, and otherwise deal with property; and (d) may have a common seal; and (e) may sue and be sued. Division 4—Registered name and office Registered name of organisation that is not a corporation 424.(1) If an organisation is not a corporation, its registered name must include the words— (a) if it is an employee organisation—'industrial organisation of employees' or 'industrial union of employees'; or (b) if it is an employer organisation—'industrial organisation of employers' or 'industrial union of employers'. (2) The name must state the locality in which most of its members live or carry on their business or calling. ao nn aA WO NK 11 13 1518 22 24 26 28 s 425 299 s 427 Industrial Relations Registered office 425.(1) An organisation must have a registered office in the State to which all notices to it may be given. Maximum penalty—40 penalty units. (2) The organisation must give notice to the registrar of a change in the address of its registered office within 7 days after the change happens. Maximum penalty—40 penalty units. Division 5—Miscellaneous Registrar's functions for register and rules 426.(1) The registrar must keep— (a) aregister of organisations; and (b) acopy of each organisation's rules. (2) The rules are open to inspection by a person paying the fee stated in the rules of court. Change of callings 427.(1) On an application by an organisation made in the way prescribed under a regulation, the commission may, by order, change its list of callings. (2) If the list of callings is changed under subsection (1), the organisation's list of callings is taken to be the changed list. (3) In this section— "list of callings" means the list stating the callings that accompanied the organisation's registration application. YN DUN FB Wh 1114 1720 23 s 428 300 s 429 Industrial Relations PART 3—GENERAL CONTENTS OF RULES Division 1—Requirement to have rules Organisation must have complying rules 428.(1) An organisation must have rules about the matters required of it under this part and part 4.137 (2) The organisation must give a copy of its rules to a person who asks for a copy and pays the amount prescribed under a regulation. Division 2—General requirements for contents Requirements for all organisations 429.(1) An organisation's rules must state the following— (a) (b) (c) (d) (e) (f) (g) its objectives; its eligibility rules; how and when— (i) aperson may become a member; or (i1) a person may resign from membership; or (11) aperson's membership ends, other than by resignation; the functions and powers of its committees, branch committees, office holders and branch office holders; how meetings of its committees, branches and members may be called; how its committees are controlled by its members; how committees of its branches are controlled by members of the branch; 137 Part 4 (Election rules) AYAD ns w 11131518 20 23 s 430 301 s 430 Industrial Relations (h) (i) 0) (k) (I) (m) (n) (0) how documents may be signed for the organisation; that notice must be given by a stated authorised office holder to the commission of the existence or likelihood of industrial disputes, in the way required under section 229;138 how its property is controlled and its funds are invested; any conditions for spending its funds; that, unless exempted under part 13, its accounts must be audited yearly or in another more frequent period; that, unless exempted under part 13, it must keep a members register, arranged according to branches if it has branches; how the rules may be amended; that membership applicants must be informed in writing of — (1) amember's financial obligations; and (11) how and when a member may resign from membership. (2) In this section— "committee" of an organisation or branch means— (a) (b) its management committee; or any other collective body of its members or officers, however called, that has power to do any of the following— (i) manage its affairs; (11) decide its policy; (111) make, amend or repeal its rules; (iv) enforce its rules. Additional requirements for organisation that is not a corporation 430. If an organisation is not a corporation, its rules must also state— (a) that an elected officer may be removed from office only on the ground that the officer has ceased to be eligible to hold the office 138 Section 229 (Notice of industrial dispute) 27 s 431 302 s 431 Industrial Relations or has been found guilty under the rules of— (i) misappropriation of the organisation's property; or (11) a substantial contravention of the rules; or (111) gross misbehaviour or gross neglect of duty in the office; and (b) the procedure for removing an elected officer. Rules must give conditions for loans, grants and donations 431.(1) An organisation's rules must state that the organisation or a branch of the organisation must not make donations, grants or loans totalling more than $1 000 (the "payment") to the same person unless the management committee of the organisation or branch— (a) has approved the payment; and (b) is satisfied the payment is not otherwise prohibited under the rules of the organisation; and (c) ifthe payment is a loan, it is made on satisfactory terms. (2) Despite subsection (1), the rules may allow a financial hardship payment of not more than $3 000 if it is made on condition that, if the management committee at its next meeting does not approve the payment, it must be repaid as decided by the committee. (3) In deciding whether to approve the payment, the management committee must consider whether it was made under the rules and on satisfactory terms. (4) For this section, a loan is made on satisfactory terms if the management committee is satisfied— (a) the security to be provided for the loan is sufficient; and (b) the proposed arrangements to repay the loan are satisfactory. Hn nk WwW NY 11 14 1719 2124 26 s 432 303 s 434 Industrial Relations Division 3—Permitted contents Permitted contents—general 432. An organisation's rules may— (a) state the industry for which the organisation is formed; and (b) make another provision that does not contravene this Act. Filling casual vacancies 433.(1) The rules may provide for filling a casual vacancy in an office. (2) However, the rules must not allow the filling of a casual vacancy other than by ordinary election, if the unexpired part of the term of the office is longer than the greater of— (a) 1 year; or (b) three-quarters of the term of office. (3) If a person fills a casual vacancy in an office under this section, the person is taken to have been elected to the office. (4) In this section— "term" of an office means the period for which the person last elected to the office by an ordinary election, other than by an ordinary election to fill a casual vacancy, may hold the office without being re-elected. Mortality benefit fund 434.(1) An organisation's rules may provide for an amount to be paid on the death of a member of the organisation to an eligible nominee nominated by the member. (2) Despite the rules, the member may, by giving notice to the organisation, cancel the nomination or change the nominee to another eligible nominee. (3) In this section— "eligible nominee" of a member means— A B WwW pw oonMmn ND 14 17212427 s 435 304 s 436 Industrial Relations (a) any person who is not an officer or employee of the organisation; or (b) aspouse of the member; or (c) achild, grandchild, grandparent, nephew, niece, parent or sibling of the member. Division 4—Restrictions on contents General restrictions 435.(1) An organisation's rules must not— (a) contravene this Act, another law or an industrial instrument; or (b) prevent members of the organisation from— (i) complying with this Act or another law, an industrial instrument or decision; or (i1) entering into a written agreement under an industrial instrument or decision; or (c) impose on its members, or membership applicants, conditions, obligations or restrictions that are oppressive, unreasonable or unjust. (2) An eligibility rule does not contravene subsection (1)(c) only because it requires reasonable minimum standards for the conduct of the businesses or callings of its members or membership applicants. Maximum office term for organisation that is not a corporation 436.(1) If an organisation is not a corporation, its rules must not allow an officer to hold office for more than 4 years (the "maximum term") without re-election. (2) However, the rules may extend the maximum term for a period of not more than | year to synchronise elections for other offices in the organisation. AR WwW NH 12 14 16192326 s 437 305 s 439 Industrial Relations PART 4—ELECTION RULES Division 1—Preliminary Part does not apply to corporations 437. This part does not apply to a corporation. Meaning of "direct voting system" for pt 4 438.(1) In this part, a "direct voting system", for an office in an organisation, means an electoral system in which, subject to provisions in the organisation's rules about voting enrolment— (a) all eligible members of an organisation may vote for the office; or (b) if the office is for a branch of the organisation, all eligible members included in the constituent part may vote. (2) In this section— "eligible member" means a member mentioned in section 445(c).139 Meaning of "collegiate electoral system" for pt 4 439. In this part, a "collegiate electoral system" means a system for the election of an organisation's officers under which— (a) persons are elected to a number of offices by a direct voting system; and (b) at a subsequent stage or stages, persons are elected to offices by an electoral college consisting of the persons elected at the last preceding stage.140 139 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). 16 18 20 s 440 306 s 444 Industrial Relations Division 2—General requirements General requirement of transparency 440. An organisation's rules about elections must, as far as practicable, ensure— (a) the processes under which its elections are conducted are transparent; and (b) no irregularities can happen in an election for the organisation or a branch of the organisation. Rules must provide for elections 441. An organisation's rules must provide for elections for all elected offices in the organisation or a branch of the organisation. Direct voting or collegiate electoral system must be used 442. An organisation's rules must provide for the election of its elected officers by a direct voting system or a collegiate electoral system. Division 3—Direct voting systems Subdivision 1—Preliminary Application of div 3 443. This division applies if an organisation's rules provide for the election of its elected officers by a direct voting system. Subdivision 2—Requirements for direct voting systems General requirements for direct voting system 444. The organisation's rules must state the following— oN AN BW Ww 11 14 19 22 s 445 307 s 445 Industrial Relations (a) (b) (c) (d) (f) (g) who may nominate as a candidate in the election; how a person may nominate and become a candidate; the times for nominations to open and to close; that nominations must be called in a stated way that is reasonably likely to notify the organisation's members— (i) that nominations have been called; and (11) of how to nominate; that if a nomination for an office is rejected as defective, other than because the person is not qualified to hold the office or because the nomination was made after the closing time— (i) the nominee must be notified of the defect; and (11) if practicable, the nominee must be given an opportunity to remedy the defect; that a candidate must be declared elected if the number of candidates for election is not more than the number of officers to be elected; that if at the closing time there are more candidates than the number of officers to be elected a ballot must be conducted to decide the result of the election. Required contents—ballots 445. The organisation's rules must also state the following— (a) (b) (c) that a ballot to decide the result of an election must be a secret postal ballot or another type of secret ballot approved by the registrar under subdivision 3; how the ballot is to be conducted; that a person (an "eligiblemember") may vote in the ballot only if the person was a financial member of the organisation for a stated period that— (i) starts not before 60 days before the opening time for nominations and not after 30 days before the opening time; and 21 232730 s 446 308 s 447 Industrial Relations (11) ends at the closing time for nominations; (d) that the person conducting the ballot must, when nominations for the election close, prepare a list or roll of the eligible members; (e) the appointment, conduct and functions of scrutineers to represent the candidates in the ballot; (f) that an eligible member may cast an absentee vote and how the member may cast the vote; (g) the method of voting and deciding the result of the ballot, by either a first-past-the-post system or a preferential system; (h) that a candidate or a member of the organisation has the right, up to 30 days after the declaration of the result of the election, free of charge— (i) to inspect the list or roll of persons who may vote in the ballot at the organisation's registered office when it is open for business; and (11) to be given a copy of the whole or a stated part of the list or roll. Compulsory voting permitted 446. The organisation's rules may require compulsory voting in a ballot required for an election. Subdivision 3—Alternative types of secret ballot Approval application 447.(1) An organisation may apply to the registrar for approval for ballots to decide the result of its elections for its elected officers not to be postal ballots. (2) The application must include particulars of proposed amendments to the organisation's rules that provide for secret ballots that are not postal ballots. Crm ADR AR WH 111417 20 2427 s 448 309 s 450 Industrial Relations Consideration of application 448. The registrar may grant the approval only if satisfied — (a) the proposed amendments— (i) are not contrary to this Act or to law; and (11) have been made under the organisation's rules; and (b) a ballot under the proposed amendments— (i) _ is likely to have a higher participation by the organisation's members than a postal ballot; and (11) will give members who are eligible to vote an adequate opportunity of voting without intimidation. Grant of approval 449. If the registrar grants the approval, the proposed amendments take effect from— (a) the day the registrar gives the organisation notice of the approval; or (b) a later day stated in the notice. Cancellation of approval 450. The registrar may cancel the approval only if— (a) the organisation applies for the cancellation; or (b) the registrar is no longer satisfied a ballot under the organisation's rules— (i) _ is likely to have a higher participation by the organisation's members than a postal ballot; and (11) will give members who are eligible to vote an adequate opportunity of voting without intimidation. ow! aon n WN WwW NO e 13 15 1821 23 25 s 451 310 s 453 Industrial Relations Division 4—Collegiate electoral systems Subdivision 1—Preliminary Application of div 4 451. This division applies if an organisation's rules provide for the election of its elected officers by a collegiate electoral system. Subdivision 2—Requirements for collegiate electoral systems Restriction on persons who may be elected by electoral college 452. At least 80% of the persons elected by an electoral college must be elected at the stage in the collegiate electoral system that immediately preceded the stage for which the electoral college is formed. Requirements for second or subsequent stage 453. The organisation's rules must state the following for an election at the second or subsequent stage of a collegiate electoral system— (a) who may nominate as a candidate in the election; (b) how a person may nominate and become a candidate; (c) that a candidate must be declared elected if the number of candidates for election is not more than the number of officers to be elected; (d) that if there are more candidates than the number of officers to be elected, a secret ballot must be conducted to decide the result of the election; (e) that if a ballot must be conducted— (i) how the ballot must be conducted; and (11) the methods of voting and deciding the result of the ballot; and (iii) that a person who may vote in the ballot (a "voter") may 13 15 172023 25 s 454 311 s 458 Industrial Relations vote by an absentee or proxy vote; and (iv) how a voter may vote by an absentee or proxy vote; and (v) that scrutineers may be appointed for candidates; and (vi) the functions of scrutineers. Division 5—Model election rules Model election rules 454. A regulation may make model election rules under this division for organisations. Model election rules may be adopted 455. An organisation may, by a resolution under its rules, adopt all or part of the model election rules, with or without change. Adoption without change 456.(1) If an organisation resolves to adopt all the model election rules without change, its secretary may give the registrar notice of the resolution. (2) The registrar must register the model election rules as an amendment of the organisation's rules. (3) The amendment takes effect when it is registered. Effect of adoption without change 457. If an organisation adopts the model election rules without change, its tules are taken to comply with this part. Model rules apply if election rules do not comply with pt 4 458. The model election rules are taken to be an organisation's election tules if its election rules do not comply with this part within 1 year after this section commences. BR WwW NY 11 14 16 20 23 s 459 312 s 461 Industrial Relations PART 5—VALIDITY AND COMPLIANCE WITH RULES Powers of court 459.(1) The court may, on application— (a) decide whether an organisation's rules comply with section 435;141 or (b) direct a person obliged to perform or observe an organisation's rules to perform or observe the rules. (2) However, a direction must not be made if it invalidates— (a) an election or purported election; or (b) astep for an election or purported election. (3) In deciding the application, the court may declare— (a) the whole, or a part of, the rules comply with or contravene section 435; or (b) the rules contravene section 435 in a stated way. Who may apply 460. An application may be made only by a member of the organisation or another person prescribed under a regulation. Financial help for application 461.(1) A member of an organisation may apply to the Minister for financial help if the member— (a) has made, or proposes to make, an application under this part; and (b) applies within 3 months after the application has been decided. (2) The Minister may direct that financial help from the State be given to the member for the cost of the application if satisfied— 141 Section 435 (General restrictions) CMON AN Bw 1114 18 21 23 25 s 462 313 s 465 Industrial Relations (a) there are, or were, reasonable grounds for making the application; and (b) the application is proposed to be, or was, made in good faith. (3) The registrar must decide the amount of the financial help. Interim orders 462.(1) The court may make an interim order it considers appropriate. Example— If the application is for a direction, the court may make an order to help resolve the matter within the organisation. (2) An interim order ends— (a) when the proceedings end; or (b) atan earlier time stated in the order; or (c) if itis discharged by the court. Hearing application 463.(1) The court may adjourn the hearing for a stated period on conditions it considers appropriate to give the organisation an opportunity to amend its rules. (2) The court may refuse to hear an application for directions until it is satisfied the applicant has taken all reasonable steps to resolve the matter within the organisation. Effect of declaration 464. If the court declares the whole or a part of a rule contravenes section 435, the rule or the part of the rule, is taken to be void from the making of the declaration. Direction must be complied with 465. If the court directs a person to perform or observe an organisation's tules, the person must comply with the direction unless the person has a RW Ne Cao nnanwn 1113 16192327 s 466 314 s 467 Industrial Relations reasonable excuse for not complying with the direction. Maximum penalty—40 penalty units. PART 6—AMENDMENT OF RULES Division I—Amendments by commission or registrar Breach of demarcation dispute undertaking 466.(1) This section applies if an organisation has given a demarcation dispute undertaking to the commission and the organisation has breached the undertaking. (2) The commission may amend the organisation's rules in a way it considers necessary to remove an overlap between the organisation's eligibility rules and another organisation's eligibility rules. When registrar may amend rules 467. The registrar may amend an organisation's rules as follows— (a) on the registrar's own initiative, if the registrar considers the rules do not make a provision required by section 435;142 (b) if, under section 450, the registrar has cancelled an approval under section 449 and the amendment is to provide that if a ballot is necessary for an election for the organisation it must be a secret postal ballot; (c) ifsection 458 applies, so that the organisation's election rules are the model election rules; (d) to omit a provision declared, under section 459(3)(a), to be in contravention of section 435; (e) to amend a provision declared, under section 459(3)(b), to 142 See however section 654 (Hearing to be given before decision). reo O OND Ww 13 15 1719 21 23 s 468 315 s 469 Industrial Relations contravene section 435 in a stated way so that the provision no longer contravenes section 435 in the stated way; (f) to give effect to an order under section 508(2)(b) or 536(e); (g) to correct a formal or clerical error.143 Amendment to cure noncompliance if rule declared void 468.(1) This section applies if— (a) the court declares the whole or a part of a rule of an organisation contravenes section 435 or contravenes section 435 in a stated way; and (b) the organisation's rules have not been amended so as to comply with section 435 within 3 months after the declaration is made. (2) The appropriate tribunal may amend the rules to comply with section 435 for the matters that gave rise to the declaration. (3) In this section— "appropriate tribunal" means— (a) for an organisation's eligibility rules, the commission; or (b) for other rules, the registrar. How amendment must be made 469.(1) An amendment under this division may only be made by an order, direction or written decision ("instrument"). (2) The amendment takes effect from the day of the instrument. (3) The registrar must give the organisation a copy of the instrument as soon as practicable after the decision is made. 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) RW NR e - © CMAN HD Ww 141620 23 s 470 316 s 473 Industrial Relations Division 2—Amendments by organisation Subdivision 1—Name or eligibility rule amendments Application of sdiv 1 470.(1) This subdivision applies if an organisation proposes to amend its name or eligibility rules. (2) This subdivision does not apply if the amendment is made under section 467 or 468 or proposed to be made for an amalgamation or withdrawal. (3) In this section— "amend" includes replace. Requirements for amendment 471. The proposed amendment may be made only if it has been— (a) proposed under the organisation's rules; and (b) approved under this subdivision. Approval to change 'union' to 'organisation' in name 472. If an organisation's name contains the word 'union', the registrar may, by order, approve the replacement of the word with 'organisation' or the words 'industrial organisation'. Approval for other name amendment 473.(1) This section applies to a name amendment other than an amendment mentioned in section 472. (2) The commission may, by order, approve the name amendment only if satisfied the amended name— (a) has been proposed under the organisation's rules; and (b) is not— CoC MOID WHR Ww 1214 1721 23 25 s 474 317 s 474 Industrial Relations (i) the same as another organisation's name; or (11) so similar to another organisation's name as to be likely to cause confusion. (3) Approval may be given wholly or in part. Approval for eligibility rule amendment 474.11) The commission may, by order, approve an eligibility rule amendment only if satisfied— (a) the amendment has been proposed under the organisation's rules; and (b) there is no organisation to which its members could conveniently belong that would effectively represent them in a way consistent with the objects of this Act. (2) Despite subsection (1)(b), the commission may approve the amendment if— (a) the organisation is an employee organisation; and (b) it accepts an appropriate demarcation dispute undertaking from the organisation. (3) The commission may refuse to approve an eligibility rule amendment if satisfied— (a) the amendment— (i) would contravene an agreement or understanding to which the organisation is a party; and (11) deals with the organisation's right to represent; or (b) the amendment— (i) would change the effect of a full bench order under section 279144 about the organisation's right to represent; and (11) would give rise to a serious risk of a demarcation dispute 144 Section 279 (Orders about representation rights of employee organisations) BR WN ao ntniwn 12 14 17 19 22 24 26 s 475 318 s 476 Industrial Relations that would prevent or restrict the performance of work in an industry, or harm an employer's business. (4) Subsection (3) does not limit the grounds on which approval may be refused. (5) Approval may be given wholly or in part. (6) In this section— "right to represent" of an organisation means a right of the organisation to represent the industrial interests of a particular class or group of persons. When amendment takes effect 475. If a name amendment or eligibility rule amendment is approved, the amendment takes effect on the day of the order or a later stated day. Registrar must record amendment 476. As soon as practicable after a name amendment or eligibility rule amendment takes effect the registrar must— (a) fora name amendment— (i) enter the amended name in the register; and (11) give the organisation whose name was amended a replacement certificate of registration in the approved form; and (b) for an eligibility rule amendment, enter particulars of the amendment in the register. Corn DA Wn BPW NK 12 15 17 1922 s477 319 s 479 Industrial Relations Subdivision 2—Other rule amendments Application of sdiv 2 477. This subdivision applies if an organisation proposes to amend its rules, other than by amending its name or eligibility rules, or by, under section 456,145 adopting the model election rules without change. When amendment may be made 478.(1) The proposed amendment may be made only if the registrar has approved it. (2) The registrar may approve a proposed amendment only if satisfied it— (a) does not contravene section 435146 or another law; and (b) has been proposed under the organisation's rules. When amendment takes effect 479.(1) If the registrar approves the proposed amendment, the registrar must register the amendment as soon as practicable. (2) The amendment takes effect when it is registered. 145 Section 456 (Adoption without change) 146 Section 435 (General restrictions) new bw SO OX a 15 s 480 320 s 483 Industrial Relations PART 7—CONDUCT OF ELECTIONS Division 1—Preliminary Part does not apply to corporations 480. This part does not apply to a corporation. Division 2—Preparatory steps Organisation or branch must file prescribed election information 481.(1) If an organisation or a branch of an organisation proposes to conduct an election, the organisation or branch must file the information prescribed under a regulation for the election in the registry. (2) The information must be filed before the day prescribed under a regulation or a later day the registrar allows. Registrar must arrange for elections 482. The registrar must arrange for an election to be conducted by the electoral commission if— (a) the information prescribed under a regulation is filed; and (b) satisfied the election is required to be held under the rules of the relevant organisation or branch. Division 3—Conduct of elections Electoral commission to conduct elections 483. An election must only be conducted by the electoral commission.147 147 See however part 13 (Exemptions), division 3 (Exemptions from requirement that electoral commission conduct election). Eo CMAN a 14 17 s 484 321 s 488 Industrial Relations Organisation's rules generally to be complied with 484. Subject to section 485, the rules of the organisation or branch for which an election or a step in an election is being conducted must be complied with. Action or directions by electoral officer 485.(1) The electoral officer conducting an election or a step in an election may take action, and give directions, the officer considers necessary— (a) to ensure no irregularities happen in the election; or (b) to remedy a procedural defect that appears to the electoral officer to exist in the rules. (2) The election or step is not invalid only because the rules of the organisation or branch are contravened by the action or direction. Substitute electoral officer 486. The electoral commissioner must arrange for another electoral officer to complete an election, or a step in an election, if the electoral officer conducting the election or taking the step— (a) dies or can not complete the election or take the step; or (b) ceases to be qualified to conduct the election or take the step. Death of candidate 487.(1) An election must be discontinued and a new election held if— (a) 2 or more candidates are nominated for the election; and (b) 1 of the candidates dies before the close of the ballot. (2) Subsection (1) applies despite anything in the rules of an organisation or branch. Election result report 488.(1) The electoral commission must, within 14 days after the RwWN ao ntniwn 12 1518 2022 24 26 s 489 322 s 493 Industrial Relations declaration of the result of an election, give the registrar a written election result report for the election stating the particulars prescribed under a regulation. (2) A contravention of this section does not invalidate the election. Election costs to be paid by State 489. The costs of an election conducted by the electoral commission under this part are payable by the State. Ballot records must be preserved 490.(1) This section applies despite the rules of an organisation or branch. (2) The electoral commission must do everything necessary to ensure all ballot records for an election are kept by it for 1 year after the election. Division 4—Offences about conduct of elections Using organisation's resources for election purposes 491. An organisation must not use, or permit its employees or agents, members or officers to use, the organisation's property or resources to help a candidate for an election against another candidate for the election. Maximum penalty—80 penalty units. Obstructing conduct of election 492. A person must not obstruct another person conducting an election. Maximum penalty—80 penalty units. Failing to comply with electoral officer's direction 493. A person to whom a direction is given by an electoral officer under this part must not fail to comply with the direction, unless the person has a BR WNe Nn 12 162024 s 494 323 s 495 Industrial Relations reasonable excuse for not complying with the direction. Maximum penalty—80 penalty units. Obstructing electoral officer's direction 494. A person must not obstruct another person complying with a direction by an electoral officer under this part. Maximum penalty—80 penalty units. Offences about ballots 495. A person must not, without lawful authority or excuse, do any of the following about a ballot for an election— (a) obtain or possess a ballot paper if the person does not have the right to obtain or possess it; (b) pretend to be and vote as someone else; (c) amend, deface, destroy, interfere with, or remove a ballot record; (d) vote in the ballot if the person does not have the right to vote; (e) vote more than once; (f) forge a ballot record; (g) utter a ballot record knowing it to be forged; (h) give a ballot record to someone else; (i) puta ballot record in a ballot box or other container used for the ballot (a "ballot box") if the person does not have the right to vote; Gj) deliver or post a ballot record to another person performing functions for the ballot if the person does not have the right to deliver or post it; (k) destroy, interfere with, open, or remove a ballot box. Maximum penalty—80 penalty units. Dn nk Ww 11 131517202326 s 496 324 s 497 Industrial Relations Disadvantaging candidates etc. 496.(1) A person must not cause, inflict or procure a disadvantage to anyone or anything because of, or to induce— (a) acandidature or withdrawal of a candidature in an election; or (b) a vote or omission to vote in an election; or (c) support for or opposition to a candidate in an election; or (d) a promise of a vote, omission to vote, support or opposition for or to a candidate in an election. Maximum penalty—80 penalty units. (2) In this section— "cause" a disadvantage includes offering, suggesting and threatening a disadvantage. "disadvantage" includes damage, detriment, injury, loss, punishment and violence. Unauthorised access to ballot paper 497. A person must not, without lawful authority or excuse— (a) ask, require or induce another person to show to, or permit the person to see, a ballot paper so the person can see the vote recorded in the ballot paper— (i) while the paper is being marked; or (11) after it has been marked; or (b) if the person is performing functions for an election, show to or permit anyone else access to a ballot paper used in the election or ballot, other than to perform the functions. Maximum penalty—80 penalty units. CMI DWN BF WHY LY e Oo ee NR eile' Rw 16 1821 23 s 498 325 s 501 Industrial Relations PART 8—ELECTION INQUIRIES Division 1—Preliminary Part does not apply to corporations 498. This part does not apply to a corporation. Division 2—Applications and referrals to commission Commission may conduct election inquiry 499. The commission may, on an application referred to it by the registrar under this part, conduct an inquiry (an "election inquiry") about a claimed irregularity in an election for an organisation or branch. Who may apply 500. An application for an election inquiry may be made only by— (a) a financial member of the organisation; or (b) a person who was a financial member of the organisation within 1 year before the application is made. Requirements for application 501. The application— (a) may be filed only during the period that— (i) _ starts on the day the prescribed information for the election is filed under section 481(1)!48; and (11) ends— (A) 6 months after the election has ended; or 148 Section 481 (Organisation or branch must fill prescribed election information) oon lon 1114 1619 21 s 502 326 s 503 Industrial Relations (B) ona later day allowed by the registrar; and (b) must state— (i) _ the election for which the application is made; and (11) the irregularity that is clamed to have happened; and (11) the facts relied on to support the application; and (c) must be accompanied by an affidavit by the applicant stating the facts claimed in the application are true to the best of the applicant's knowledge and belief. Referral to commission 502.(1) The registrar may refer the application to the commission only if satisfied— (a) there are reasonable grounds to inquire whether there has been an irregularity in the election that may have affected, or may affect, the election result; and (b) the circumstances justify an inquiry. (2) In deciding whether to refer, the registrar may consider other appropriate information of which the registrar has knowledge. (3) An election inquiry is taken to have been started in the commission when the application is referred. Division 3—Investigations and interim orders Commission may authorise registrar to investigate 503.(1) The commission may, by order, before or after the registrar's decision to refer, authorise the registrar to do any of the following— (a) inspect ballot records for the election; (b) take possession of the ballot records; (c) enter a place of business used or occupied by the organisation or branch at which the registrar reasonably believes the ballot records are held, using necessary and reasonable help; CID A FF WN 11 1317 19 23 25 27 s 504 327 s 504 Industrial Relations (d) require a person to give the registrar ballot records in the person's possession or under the person's control or to keep the ballot records until— (i) an inquiry is completed; or (11) an earlier time ordered by the commission. (2) If a person is required to give ballot records under subsection (1)(d), the person must not fail to comply with the direction, unless the person has a reasonable excuse for not complying with the requirement. Maximum penalty—80 penalty units. (3) A person must not obstruct the registrar when exercising a power under this section. Maximum penalty—80 penalty units. Interim orders 504. After the registrar refers the application, the commission may, make an interim order— (a) (b) (c) (d) stopping any further steps to— (i) conduct the election; or (11) give effect to the election result; or stopping a person from acting in an office the inquiry is about, if the person has— (i) assumed the office; or (11) continued to act in it; or (11) claims to occupy it; or directing a person who holds, or who last held before the election, an office for which the election is held to act or continue to act in the office; or directing a member of the organisation or branch or another stated person to act in an office for which the election is held, if it considers a direction under paragraph (c) would— (i) not be practicable; or Fo OO OAYQDHD A FP WN ee a N 15 1720 2226 28 s 505 328 s 507 Industrial Relations (11) affect the efficient conduct of the affairs of the organisation or branch; or (111) be inappropriate having regard to the nature of the inquiry; or (e) consequential to, or amending or discharging, another interim order. Person acting under interim order 505. If a person is acting, or continuing to act, in an office under an interim order, the person is taken to hold the office— (a) while the order is in force; and (b) despite the rules of the organisation or branch. When interim order ends 506. An interim order ends— (a) at the completion of the election inquiry and everything the commission ordered, other than under an interim order, during the inquiry; or (b) the day stated in the order for it to end; or (c) if itis discharged by the commission. Division 4—Conduct of election inquiries Commission's functions and powers for inquiry 507.(1) For an election inquiry, the commission must inquire into and decide— (a) ifan irregularity has happened in the election; and (b) other questions it considers necessary about the conduct and results of the election. (2) The commission may make orders it considers necessary for the inquiry, including, for example, a recount of votes for the election. Ap W NR 12 1417 21 24 26 s 508 329 s 509 Industrial Relations Orders if irregularity found 508.(1) This section applies if the commission finds an irregularity has happened, or is likely to happen, in an election. (2) The commission may make an order— (a) fora fresh election or the repeat of a step in the election, including, for example, calling for and submitting nominations; or (b) amending the election rules of the relevant organisation or branch in a way it considers necessary to correct a procedural defect in the rules; or (c) directing safeguards it considers appropriate to stop irregularities in the election, fresh election or repeat step; or (d) appointing a returning officer to act with any returning officer appointed under the rules; or (e) providing for the powers of a returning officer appointed under paragraph (d). (3) Also, the commission may, by order, if it finds the election result may have been, or may be, affected by the irregularity or a similar irregularity, declare— (a) the election, or a step taken in or for it, to be void; or (b) a person apparently elected in the election not to have been elected; or (c) a person to have been elected at the election instead of a person declared not to have been elected. (4) The commission may make any other order that is consequential to an order under this section. Enforcing pt 8 orders 509. The commission may make an order in the nature of an injunction, either mandatory or restrictive, it considers necessary to enforce an order or perform its functions or exercise its powers under this part. BR WN ee ee WN FO COAOAN AWN Ree ns eee wornad e \o NN re Oo NN wh NN ns 28 s 510 330 s 512 Industrial Relations Division 5—Offences about election inquiries Disadvantaging applicant for inquiry 510.(1) A person must not cause, inflict or procure a disadvantage to another person because the other person has applied for an election inquiry. Maximum penalty—80 penalty units. (2) In this section— "disadvantage" includes damage, detriment, injury, loss, punishment and violence. Obstructing orders being carried out 511. A person must not obstruct the carrying out of a commission order under this part. Maximum penalty—80 penalty units. Division 6—Miscellaneous Financial help for application 512.(1) An applicant for an election inquiry may apply to the Minister for financial help. (2) The Minister may direct that financial help from the State be given to the applicant for the cost of the application, including witness expenses, if— (a) the commission found an irregularity happened in the election and the Minister considers the circumstances justify the payment; or (b) the commission certifies the applicant acted reasonably in applying for the inquiry; or (c) after considering the commission's findings at the inquiry, it is not just the applicant should pay any of the costs. (3) The registrar must decide the amount of the financial help. oN DW PW Bw 11 16 18 20 22 24 s 513 331 s 514 Industrial Relations Costs of fresh election ordered by inquiry 513.(1) If the commission orders a fresh election under this part, the 2 State must pay the costs of the fresh election. 3 Example of a 'cost'— 4 The cost of premises used for the fresh election. 5 (2) In this section— 6 "fresh election", for an organisation or branch, includes— 7 (a) astep in an election; and 8 (b) asafeguard, not allowed for under the rules of the organisation or 9 branch, for an election or step in an election. 10 PART 9—OFFICERS 11 Division 1—Preliminary 12 Definitions for pt 9 13 514. 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 (c) against section 492, 627, 656 or 657;149 or (d) involving the formation, registration or management of an association, corporation or organisation; or (e) that is a violent offence. "elected", to an office, includes appointed to fill a casual vacancy in the office. "leave application" means an application under division 2, subdivision 2. "violent offence" means an offence involving the— (a) intentional use of violence towards another person; or (b) causing of death or injury to a person; or (c) damage or destruction of property. Meaning of "convicted person" for pt 9 515.(1) In this part, a "convicted person" means a person who— (a) has been convicted on indictment of a disqualifying offence; or (b) without limiting paragraph (a), has served, or is serving, a prison term for a violent offence. (2) A "convicted person" also includes a person convicted, before this part commenced, of an offence that, apart from the non-commencement of this part, would have been a disqualifying offence. 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) CM NID HW BW DH = Se Be NF oO 1417 19 s 516 333 s 518 Industrial Relations Division 2—Disqualifications from candidature or holding office Subdivision 1—Disqualifications Persons under 18 516. A person under 18 years is not eligible to be a candidate or to be elected as a management committee member, treasurer or trustee of an organisation. Convicted persons—candidature 517. A person convicted of a disqualifying offence may be a candidate or elected to an office in an organisation only if— (a) the person has made a leave application to hold the office and— (i) was given leave to hold the office; or (11) the court fixed a disqualification period for the person and the period has ended; or (b) 5 years has elapsed since the later of the following— (i) _ the conviction; (11) if the person served a prison term for the offence, the person's release from prison. Convicted persons—holding office 518.(1) This section applies if a person who holds an office in an organisation is convicted of a disqualifying offence. (2) The person ceases to hold the office 28 days after the conviction unless the person makes a leave application within that time. (3) However, if the person makes a leave application within that time, the person ceases to hold the office— (a) 3 months after the conviction, if the application has not been decided and the court has not extended that time; or DAunf w 11 13 15 17 20 22 24 26 s 519 334 s 521 Industrial Relations (b) ifthe court has extended that time, at the end of the extended time. (4) The court may extend the time only if— (a) an application for the extension before the time mentioned in subsection (3)(a); or (b) if it has previously extended the time, the application for the further extension is made before the end of the time as extended. Subdivision 2—Applications for leave to hold office Prospective candidates 519.(1) This section applies if a person who wants to be a candidate for an office in an organisation has, within 5 years, been— (a) convicted of a disqualifying offence; or (b) released from prison after serving a prison term for a conviction for a disqualifying offence. (2) The person may apply to the court for leave to hold the office. (3) The court must not grant the leave if the applicant has already made a leave application for the conviction. Existing office holders 520.(1) If a person holding an office is convicted of a disqualifying offence, the person may apply to the court for leave to hold the office or another stated office. (2) The court may grant the leave only if— (a) the application is made within 28 days after the conviction; and (b) the person has not already made a leave application for the conviction. Consideration of leave applications 521. In deciding a leave application, the court must consider— DAN BPW NY 11 13 16 1922 24 26 s 522 335 s 524 Industrial Relations (a) the nature of the disqualifying offence in relation to which leave is sought; and (b) the circumstances and the nature of the applicant's involvement in the commission of the offence; and (c) the applicant's general character and fitness to be involved in the management of organisations, having regard to the offence; and (d) any other matter it considers appropriate. Disqualification period may be given if leave refused 522.(1) If the court decides to refuse a leave application, it may fix a period (a "disqualification period") during which the applicant is disqualified from holding office in any organisation. (2) However, the court must not fix a disqualification period that starts before or ends more than 5 years after the later of the following— (a) the conviction that is the subject matter of the application; (b) if the person served a prison term for the conviction, the person's release from prison. Leave or fixing of disqualification period does not affect div 2 523. The granting of a leave application or the fixing of a disqualification period for a conviction does not affect the operation of this division for another conviction. Subdivision 3—Miscellaneous Declaration about eligibility or ceasing to hold office 524.(1) An organisation, a member of the organisation or the registrar may apply to the court for a declaration that, because of this division, a person— (a) is not, or was not, eligible to be a candidate or to be elected to an office in the organisation; or NY DWN BPW NR 11 13 16 192427 s 525 336 s 528 Industrial Relations (b) has ceased to hold an office in the organisation. (2) Despite anything in the rules of the organisation, the court may make an order it considers appropriate to give effect to the declaration. Certificate evidence for div 2 525.(1) For an application under this division, a certificate stating the following about a person and purporting to be by an appropriate officer of a court of the State or another jurisdiction is evidence the person was— (a) convicted by the court of a stated offence on a stated day; (b) acquitted by the court of a stated offence, or that a stated charge against the person was dismissed by the court, on a stated day. (2) A certificate purporting to be by an officer in charge of a prison is evidence that a stated person was released from the prison on a stated day. (3) In this section— "appropriate officer" of a court means a registrar or other officer with registration functions for the court. Division 3—Officers' financial management duties Application of div 3 526. This division applies if an officer of an organisation performs functions or exercises powers relating to the organisation's financial management. Duty of honesty 527. The officer must act honestly. Maximum penalty—40 penalty units. Duty of reasonable care and diligence 528. The officer must exercise the degree of care and diligence that a reasonable person in the officer's position would be reasonably expected to w onan fF 12 15 192226 s 529 337 s 530 Industrial Relations exercise. Maximum penalty—40 penalty units. Officers with material personal interests 529.(1) This section applies if the officer has a material personal interest in a matter involving the organisation's financial management. (2) The officer must disclose the nature of the interest to the organisation's management committee as soon as practicable after the relevant facts come to the officer's knowledge. Maximum penalty—40 penalty units. (3) If the matter is to be considered at an annual general or management committee meeting at which the officer is present, the officer must not— (a) vote on the matter; or (b) remain at the meeting when the matter is being considered. Maximum penalty—40 penalty units. Other duties not affected 530. This division does not— (a) limit a law about the exercise of an officer's powers or performance of an officer's functions; or (b) prevent the taking of proceedings about a breach of an officer's duty to an organisation. FBO © OID WDB wo Se See N ee KR Ww 16 18 20 s 531 338 s 532 Industrial Relations PART 10—MEMBERSHIP Division 1—Eligibility and admission to membership Eligibility 531. A person is eligible to become a member of an organisation if the person— (a) by the nature of the person's occupation or employment, engages in a calling for which the organisation is registered; and (b) complies with the organisation's rules. Obligation to admit 532.(1) An organisation must admit to membership a person who is eligible to become a member— (a) within 3 months of the person applying to become a member; or (b) if. question or dispute has within the 3 months been referred to the court for decision under division 3, within | month of the court deciding the person is, or is eligible to become, a member. Maximum penalty—40 penalty units (2) In this section— "admit to membership" means— (a) do what is necessary under the organisation's rules to ensure the person is a member of the organisation; or (b) record in the organisation's members register the particulars required under section 545150 for the person's membership of the organisation. 150 Section 545 (Requirements for members register) CoC NDR Hn WwW 11 141720 22 s 533 339 s 535 Industrial Relations Obligation to give union card 533.(1) If a person is admitted to membership of an organisation or a person's membership of an organisation is renewed, the organisation must give a union card to the person as soon as practicable after the admission or renewal. Maximum penalty—40 penalty units (2) The giving of a union card under this section does not prevent the organisation making an application under division 2 or the court making a decision or order under division 2. (3) In this section— "union card" means a document issued by an organisation acknowledging that the person is a member of the organisation. Members under 18 534. A person under 18 years— (a) may be or become a member of an organisation, unless its rules provide otherwise; and (b) if the person is a member of an organisation, the person— (i) _ has the rights of a member of an organisation under this part and the organisation's rules; and (11) may execute instruments and give receipts under the rules. Division 2—Membership disputes Court may decide 535. The court may, on the application of an organisation or a person who has applied for membership of an organisation, decide a question or dispute about the following— (a) whether a person is, or is eligible to become, a member of the organisation; (b) when a person became a member or must be treated by the CON DA NRBWN LY e Oo aon Nw 14 16 19 2427 s 536 340 s 537 Industrial Relations (c) (d) organisation and its members as if the person had become a member; the qualifications of a membership applicant; the reasonableness of a membership subscription, fine or levy, or other requirement of its members under its rules. Deciding application 536. On hearing the application, the court may do any of the following— (a) (b) (c) (d) (e) declare a person is or is not a member of the organisation; decide a membership applicant may become a member of the organisation; order the organisation to admit a membership applicant to its membership and record the applicant as a member in its members register; order the organisation to treat a membership applicant as if the applicant had been a member of the organisation from a stated day; order an amendment or repeal of a rule of the organisation. Division 3—Membership subscriptions Obligation to give receipt 537.11) This section applies if a person pays an organisation a membership subscription for the person's membership or membership renewal of the organisation. (2) The organisation must give the person a written receipt for the payment within | month after the payment was made. Maximum penalty for subsection (2)—40 penalty units. Ap W NR onan 12152124 s 538 341 s 541 Industrial Relations Division 4—Resignation Division applies despite rules 538. This division applies despite an organisation's rules. Resignation 539.(1) A member of an organisation may resign from membership of the organisation under this section or the organisation's rules. (2) The person's membership ends if the person gives the organisation a notice stating the person resigns from the organisation. (3) The person's membership ends— (a) ifthe notice states a day or time after the notice is given when the resignation takes effect, on the day or time; or (b) otherwise, when the notice is given. Resignation if membership subscription unpaid for 2 years 540.(1) A person's membership of an organisation ends if the person— (a) owes the organisation a membership subscription; and (b) has owed the subscription for 2 years. (2) For subsection (1), a person is taken not to owe a subscription if the person has— (a) entered into an agreement with the organisation to pay the subscription; and (b) complied with, and continues to comply with, the agreement. Division 5—Liabilities of member to organisation Meaning of "member's liability" for div 5 541. In this division, a "member's liability" to an organisation means an amount payable to the organisation under its rules by a member or former w Bo 0 ON AN Se See N ee Bee Hn nn f& WwW ile' on Ne cow N pan 25 s 542 342 s 543 Industrial Relations member of the organisation. Examples of a 'member's liability'— A membership fee, fine, levy or subscription. Recovering member's liabilities 542.(1) A member's liability to an organisation may only be sued for and recovered before a magistrate. (2) Proceedings to recover a member's liability to an organisation must be commenced within 3 years from when the member's liability first become payable. (3) If proceedings to recover a member's liability to an organisation are not commenced under subsection (2), the member's liability is not recoverable. Limit on liability after resignation 543. If a person's membership of an organisation has ended, the person— (a) continues to be liable for a member's liability that— (1) became payable within | year before the membership ended; and (i) is recoverable under section 542; and (b) is not liable for a member's liability that became payable— (i) more than | year before the membership ended; or (11) after the membership ended. w on AWN fF 12 15 18 2022 s 544 343 s 546 Industrial Relations PART 11—REGISTERS Members and officers registers 544. An organisation must, for each year, keep written registers stating each person who is or was— (a) amember of the organisation during the whole or part of the year; or (b) an officer of the organisation during the whole or part of the year. Maximum penalty—40 penalty units. Requirements for members register 545.(1) An organisation must record the following for each person who is or was a member of the organisation during the whole or part of the year for which the register is kept— (a) the person's name; (b) for an employee organisation, the person's residential address; (c) for an employer organisation, the person's business address; (d) the day the person became a member; (e) ifthe person's membership has ended, the day it ended. Maximum penalty—40 penalty units. (2) If the organisation has more than 100 members, it must keep the register in a way that allows the names to be read alphabetically. Maximum penalty—40 penalty units. Officers register—required particulars 546. An organisation must record the following for each person who is or was an officer of the organisation during the whole or part of the year for which the register is kept— (a) the person's name and address; (b) each office the person holds or held; CNY AW FW Bw 11141618 20 2427 s 547 344 s 550 Industrial Relations (c) the day the person was elected or appointed to each office; (d) if a person ceased or ceases to hold an office, the day the office holding ceased or ceases. Maximum penalty—40 penalty units. Annual obligation to file officers register 547. An organisation must, before 31 March in each year, file a copy of its officers register as at the start of the year. Maximum penalty—40 penalty units. Obligation to file officers register on change of office holder 548. An organisation must file a copy of its officers register within 30 days after a person becomes or ceases to be an officer of the organisation. Maximum penalty—40 penalty units. Inspection of registers 549.(1) When an organisation's office is open for business, its members and officers registers must be open for inspection, free of charge, at the office by— (a) the registrar, or a person with the registrar's written authority; or (b) the organisation's members, or a person with a member's written authority. (2) A copy of an organisation's officers register filed with the registrar may be inspected by any person who pays the fee prescribed under the rules of court. Registrar's directions about registers 550.(1) The registrar may give a written direction to an organisation to— (a) give the registrar its members or officers register; or BR WN ao ntniwn 111620 2226 s 551 345 s 552 Industrial Relations (b) correct its members or officers register in a stated way the registrar considers is necessary to ensure compliance with this part. (2) The organisation must comply with the direction, unless it has a reasonable excuse for not complying with the direction. Maximum penalty for subsection (2)—40 penalty units. PART 12—ACCOUNTS AND AUDIT Division 1—Preliminary Definitions for pt 12 551. In this part— "accounting deficiency" see section 560(d). "accounting records" see section 554(3). "financial affairs" includes transactions. "financial year" of an organisation, see section 552. "presentation meeting" see section 565. "registrar's auditor" see section 575(1). "transactions" includes membership subscription payments. Meaning of "financial year" for pt 12 552.(1) In this part, a "financial year" of an organisation means— (a) the period of | year starting on 1 July; or (b) if its rules provide for another period of 1 year as its financial year, the other period. (2) If an organisation's rules change so that the period of its financial year changes, the time from the end of the financial year before the change and Hn nk WnNe 11131517 1922 24 s 553 346 s 554 Industrial Relations the start of the first financial year after the change is taken to be a financial year. (3) The period from when an organisation is registered to the start of its first financial year under subsection (1) is not included in a financial year of the organisation. Part applies to branches with separate financial affairs 553. If a branch keeps accounting records and accounts separate from its organisation's accounts and accounting records, this part, other than this section, applies to the branch for the year, as if— (a) it is an organisation (the "notional organisation"); and (b) the members of the organisation that form the branch are members of the notional organisation; and (c) employees of the organisation employed for the branch, whether or not they are also employed for another branch, are employees of the notional organisation; and (d) a journal published by the organisation is a journal published by the notional organisation. Division 2—Accounting obligations Obligation to keep accounting records 554.(1) An organisation must keep accounting records for its transactions for at least 7 years after the end of the transactions they are about. Maximum penalty—40 penalty units. (2) The accounting records must be kept in a way prescribed under a regulation. Maximum penalty—40 penalty units. (3) In this section— "accounting records" of an organisation means financial documents that— (a) explain the methods and calculations about how its accounts are A pW NR oon lon 1417 21 24 2628 s 555 347 s 556 Industrial Relations made up and correctly record and explain the organisation's transactions and financial position; or (b) are prescribed under a regulation. Obligation to prepare accounts 555.(1) An organisation must prepare the accounts and other statements ("accounts") prescribed under a regulation for each financial year as soon as practicable after the year ends. Maximum penalty—40 penalty units. (2) The organisation must include in the accounts— (a) the relevant figures from the preceding financial year's accounts; and (b) the particulars prescribed under a regulation about each matter for which a compulsory levy or voluntary contribution has been paid to the organisation. Maximum penalty—40 penalty units. (3) A regulation may prescribe certificates that must be included in the accounts. (4) In this section— "compulsory levy", for an organisation, means a levy payable by a member to the organisation under its rules. Member may apply for prescribed information 556.(1) A member of an organisation may apply to the organisation for information that it must, under a regulation, give its members. (2) An application may be made by the registrar for a member. (3) The organisation must give the member or, if the registrar applied for a member, the registrar, the information applied for in the way prescribed under a regulation. Maximum penalty—40 penalty units. Ne Bo 0 Om NIDUHN LE w See ee ROBY Nn Ree na Co Ne cow 23 26 s 557 348 s 558 Industrial Relations (4) If the information is given to the registrar, the registrar must give the information to the member for whom the registrar made the application. Registrar's directions about accounts and accounting records 557.(1) The registrar may direct an officer of an organisation to give the registrar— (a) stated information about the organisation's funds and accounts within the officer's knowledge or possession; or (b) stated accounts or accounting records of the organisation over which the officer has control or custody. (2) The registrar may also direct any officer of an organisation with functions or powers for keeping its accounts or accounting records to— (a) keep the organisation's accounts in a stated form; or (b) make a stated entry or entries of a stated type in the accounts. (3) If an officer is given a direction under this section, the officer must comply with the direction, unless the officer has a reasonable excuse for not complying with the direction. Maximum penalty—40 penalty units. (4) It is a reasonable excuse for the officer not to comply with the direction if doing so might tend to incriminate the officer. Division 3—Audits Obligation to have auditor 558.(1) An organisation must appoint a competent person as its auditor to— (a) inspect and audit the organisation's accounting records for each financial year for which the auditor is appointed; and (b) make a report (an "audit report") to the organisation within 4 months after the end of each financial year. Maximum penalty—40 penalty units. Ne FBO CO NID WH wo Se See N = w eRe DAuns a nN ee \o 23 25 27 s 559 349 s 560 Industrial Relations (2) A person, other than a competent person, must not— (a) accept an appointment as an auditor; or (b) continue in an appointment to perform an audit or prepare an audit report. Maximum penalty—40 penalty units. (3) In this section— "competent person", for an audit or audit report for an organisation, means a person who is— (a) a registered company auditor under the Corporations Law, section 9, definition "registered company auditor"; and (b) not an officer or a member of the organisation; and (c) not employed by the organisation, other than as its auditor. How auditor may be removed 559. An organisation's auditor may only be removed— (a) ifthe auditor was appointed by its management committee—with the agreement of a majority of the members of the committee; or (b) if the auditor was appointed by a general meeting of the organisation, by a resolution passed at a general meeting by a majority of its members voting at the meeting. Requirements for audit report 560. An audit report must state whether, in the auditor's opinion— (a) the organisation kept satisfactory accounting records for the financial year, including records of — (i) the sources and nature of the organisation's income, including membership subscriptions and other income from members; and (11) the nature of and reasons for the organisation's expenditure; and (b) the accounts for the year were properly drawn to give a true and ow! ON Dn wn BW WN Se Se Ne 14 16 1821 23 26 28 s 561 350 s 563 Industrial Relations fair view of the organisation's— (i) financial affairs at the end of the year; and (11) income and expenditure and surplus or deficit for the year; and (c) the accounts for the year were prepared under this Act; and (d) there was a deficiency, failure or shortcoming (an "accounting deficiency") for a matter mentioned in paragraphs (a) to (c); and (e) information and explanations required from the organisation's officers or employees were given. Audit report must not be knowingly false or misleading 561.(1) An auditor must not state anything in an audit report the auditor knows is false or misleading in a material particular. Maximum penalty—40 penalty units. (2) It is enough for a complaint for an offence against subsection (1) to state the statement made was 'false or misleading' to the auditor's knowledge. Auditor must notify registrar of contravention 562. An auditor performing auditor's functions for an organisation must immediately notify the registrar if the auditor— (a) becomes aware a provision of this part has been contravened; and (b) is of the opinion that the matter can not be adequately dealt with by comment in the auditor's audit report. Maximum penalty—40 penalty units. Auditor's powers 563.(1) An organisation's auditor has the right— (a) to full and free access at all reasonable times to the organisation's records about its— Oo eo ND UN Bw WN 12 1519 22 27 s 564 351 s 564 Industrial Relations (i) payments or receipts; or (11) acquisition, receipt, custody or disposal of property; and (b) to ask the organisation's employees, members or officers for information or explanations required for the audit. (2) The auditor may authorise another appropriately qualified person (an "authorised person") to exercise the rights. (3) The organisation or an employee, member or officer of the organisation must not obstruct the auditor or an authorised person when exercising any of the rights unless the person has a reasonable excuse. Maximum penalty—40 penalty units. (4) The auditor or an authorised person may require the organisation or its employees, members or officers to produce to the auditor or authorised person a document in the person's custody or control. (5) The organisation, employee, member or officer must give the auditor or authorised person the document, unless the person has a reasonable excuse for not giving the document. Maximum penalty—40 penalty units. (6) It is a reasonable excuse for the person not to give the document if doing so might tend to incriminate the person. (7) In this section— "auditor" includes the registrar's auditor engaged to examine the organisation's accounting records. Auditors have qualified privilege 564.(1) An auditor may make a statement or comment that is defamatory if it is— (a) made in good faith; and (b) made in the course of performing the auditor's functions as an auditor under this Act; and (c) relevant to the auditor's functions. (2) A person may print or publish in good faith a document that contains oon nn Bw NY e Oo eee Wpore a Dnt a nN ee \o N Co NN Ne 25 28 30 s 565 352 s 567 Industrial Relations defamatory matter, if it was— (a) prepared by an auditor for an audit under this Act; and (b) required to be filed or made to the registrar. (3) In this section— "auditor" means an organisation's auditor or the registrar's auditor. Division 4—Presentation and filing of audit reports Obligation to present to general or committee meeting 565. An organisation must present its audit report and relevant accounts for each of its financial years to a general meeting or management committee meeting (a "presentation meeting") within— (a) 5 months after the end of the financial year that the report and accounts are about; or (b) if the registrar has extended the time to hold the meeting, the extended time. Maximum penalty—40 penalty units. Obligation to publish audit report and accounts 566. An organisation must, at least 28 days before each presentation meeting— (a) give its members, free of charge, a copy of the audit report and relevant accounts to be presented at the meeting; or (b) publish the report and accounts in a journal or newsletter that it gives to its members free of charge. Maximum penalty—40 penalty units. Notice of meetings to auditor 567.(1) An organisation must give its auditor notice of— (a) each presentation meeting; and nA FB WwW NY 12 14 18 20 22 26 s 568 353 s 569 Industrial Relations (b) any other meeting of the organisation at which business is to be conducted about the auditor, in that capacity. Maximum penalty—40 penalty units. (2) In this section— "notice" of the meeting means the notice of the meeting that the persons who may attend the meeting have the right to receive under the organisation's rules. Auditor may attend meetings 568.(1) An organisation's auditor, or another person authorised by the auditor, may attend and address the part of — (a) a presentation meeting at which the auditor's audit report and relevant accounts are to be considered or presented; or (b) any other meeting of the organisation at which business is to be conducted about the auditor, in that capacity. (2) An employee, member or officer of the organisation must not obstruct the auditor or authorised person from attending or addressing the part of the meeting, unless the person has a reasonable excuse. Maximum penalty—40 penalty units. False or misleading statements about reports 569.(1) This section applies if— (a) amember of an organisation's management committee— (i) gives members of the organisation a copy of its audit report and relevant accounts; or (11) presents the report and accounts to a general meeting or management committee meeting of the organisation; and (b) the member comments on a matter dealt with in the report or accounts. (2) The member must not state anything in the comment the member knows is false or misleading in a material particular. NYDN FB W NK 12 14 162023 25 27 29 s 570 354 s 571 Industrial Relations Maximum penalty—40 penalty units. (3) It is enough for a complaint for an offence against subsection (2) to state the statement made was 'false or misleading' to the member's knowledge. Report and accounts must be filed 570.(1) An organisation must, within the required period, file— (a) a copy of the audit report and relevant accounts for each of its financial years; and (b) acertificate by its president or secretary stating the originals of the report and accounts have been presented to a general meeting or management committee meeting of the organisation. Maximum penalty—40 penalty units. (2) In this section— "required period" means the period of 14 days after the report and accounts are presented or a longer time allowed by the registrar. Division 5—Registrar's investigations and audits Registrar's investigations 571.(1) The registrar must investigate an organisation's finances or financial administration if— (a) an audit report for the organisation states— (i) there was an accounting deficiency in the organisation's accounts; or (11) another matter the registrar considers should be investigated; or (b) asked by the required number of members of the organisation. (2) The registrar may also conduct an investigation— 19 22 24 26 s 572 355 s 574 Industrial Relations (a) if satisfied there are reasonable grounds to conduct an investigation; or (b) im another circumstance prescribed under a regulation. Registrar's directions for investigation 572.(1) The registrar may direct an auditor, employee or officer, or a former auditor, employee or officer, of the organisation to give the registrar— (a) information relevant to the investigation within the person's knowledge or possession; or (b) documents relevant to the investigation over which the person has control or custody. (2) If a direction is given to a person under this section, the person must comply with the direction, unless the person has a reasonable excuse for not complying with the direction. Maximum penalty—40 penalty units. (3) It is a reasonable excuse for the person not to comply with the direction if doing so might tend to incriminate the person. Notice of contravention to organisation 573.(1) This section applies if the registrar considers an investigation has revealed a contravention of this Act or a rule of the organisation investigated about its finances or financial administration. (2) The registrar may by notice— (a) advise the organisation of the contravention; and (b) require it to take stated action, within a stated period, to remedy the contravention. Court may order compliance with notice 574. If an organisation does not comply with a notice under section 573(2), the court may, on the application of the registrar, make an Ne w Bo COM NQDAYN Bp See ee nA BWN Ree na 2023 25 28 s 575 356 s577 Industrial Relations order it considers appropriate to remedy the contravention stated in the notice. Registrar's examinations and audits 575.(1) The registrar may engage an auditor ("registrar's auditor") to examine an organisation's accounting records for a financial year or other period for the organisation if the registrar considers— (a) the organisation has not kept accounting records; or (b) the organisation has an accounting deficiency in its accounts; or (c) the organisation's property has been misappropriated or improperly applied; or (d) the organisation, or an officer of the organisation, has committed an offence about the organisation's property. (2) The registrar's auditor must examine the organisation's accounting records and give the registrar an audit report. Powers of registrar's auditor 576. The registrar's auditor, or an appropriately qualified person authorised in writing by the auditor, has the functions and powers of an organisation's auditor. Costs of examination and audit by registrar's auditor 577.(1) The costs of or associated with an examination or audit by a registrar's auditor must be paid by the organisation for which the examination or audit is carried out if demanded by the registrar. (2) The registrar may recover the amount of the costs not paid on demand, as a debt. 172124 s 578 357 s 579 Industrial Relations Division 6—Loans, grants and donations Obligation to file details of loans, grants and donations 578.(1) An organisation must, as soon as practicable after the end of its financial year, file a statement under this section of its loans, grants or donations (a "payment") to the same person during the year of more than, or if added together more than, $1 000. Maximum penalty—40 penalty units. (2) The statement must include for each payment— (a) the amount of the payment and the reason for making it; and (b) if it was not a financial hardship payment— (i) the name and address of the person to whom it was made; and; (11) if it was a loan, the arrangements to repay the loan. (3) The statement must be signed by an officer of the organisation. Member may inspect statement 579. A filed statement may be inspected, during office hours, by a member of the organisation that filed it. COX DANBW Bw e Oo ee NR ee KR Ww 17 s 580 358 s 580 Industrial Relations PART 13—EXEMPTIONS Division 1—Exemptions for organisations with counterpart federal bodies Subdivision 1—Exemption from holding election Exemption if federal election held 580.(1) An organisation, or 2 or more organisations jointly, may apply to the registrar for an exemption from holding an election for a stated office or offices (a "stated office"). (2) The registrar may grant an exemption to an applicant for a stated office only if satisfied as follows— (a) the applicant has a counterpart federal body; (b) the body has held an election (the "federal election") for an office (the "federal office") under the Commonwealth Act; (c) the applicant's rules provide that the stated office is a corresponding office to the federal office; (d) the stated office will be filled by a person elected (the "elected person") in the federal election to the federal office; (e) ifthe eligibility rules of the organisation and the body differ—the interests of the organisation's members who were ineligible to vote in the federal election have not been disadvantaged. (3) If an exemption is granted for a stated office— (a) the elected person is taken to have been elected to the stated office; and (b) the organisation's rules for the election of the elected person to the stated office are taken to be complied with; and (c) section 44115! does not to apply to the rules for the election. 151 Section 441 (Rules must provide for elections) s 581 359 s 582 Industrial Relations (4) In this section— "corresponding office", to a federal office, means an office, however called, similar to the federal office. Obligation to notify change in federal election result 581.(1) This section applies if— (a) an organisation has been given an exemption under section 580; and (b) an order under the Commonwealth Act has changed the federal election result about which the exemption was given. (2) The organisation must give the registrar notice of the change as soon as practicable after it becomes aware of the change. Maximum penalty—40 penalty units. (3) The organisation is taken to become aware of the change if an officer of the organisation becomes aware of it. Subdivision 2—Exemption from keeping members or officers register Exemption 582.(1) An organisation, or 2 or more organisations jointly, may apply to the registrar for an exemption from keeping a members or officers register. (2) The registrar may grant an exemption to an applicant only if satisfied the applicant has a counterpart federal body and— (a) for an exemption from keeping a members register— (i) its members are, when the application is made, recorded as members of the body in the body's register of members under the Commonwealth Act;152 and (11) the body has complied with the requirements under the 152 See the Commonwealth Act, section 268 (Records to be kept and lodged by organisation). w Bo COM ND HW Lp Se See N eile' Rw 18 20 23 s 583 360 s 584 Industrial Relations Commonwealth Act about keeping its register of members and other records for its members; or (b) for an exemption from keeping an officers register— (1) _ its officers are all officers of the body; and (11) the body has complied with the requirements under the Commonwealth Act about keeping and filing records for its officers. (3) The exemption remains in force for the period stated in it or, if no period is stated, until it is cancelled. Effect of exemption 583.(1) While an exemption from keeping a members register is in force for an organisation, its counterpart federal body's register of members is taken to be the organisation's members register. (2) While an exemption from keeping an officers register is in force for an organisation, its counterpart federal body's register of officers is taken to be the organisation's officers register. Obligation to file copy of federal officers register 584.(1) This section applies if the registrar has, under section 582, granted an exemption to an organisation that exempts it from keeping an officers register. (2) The organisation must, within 14 days after any officer's records for its counterpart federal body are filed under the Commonwealth Act, file a copy of the records certified by the president or secretary of the body as being a true copy of the records. Maximum penalty—40 penalty units. (3) In this section— "officer's records" includes a statement of changes made to the records required to be filed under the Commonwealth Act.!53 153 See the Commonwealth Act, section 268 (Records to be kept and lodged by organisation). Oo eo NYDN FB W NK 1215192224 26 28 s 585 361 s 586 Industrial Relations Obligation to give notice of change or contravention 585.(1) This section applies to an organisation that has been granted an exemption under section 582 if any of the following events happen— (a) itno longer has a counterpart federal body; (b) ifit was exempted from keeping a members register— (i) (ii) its members are not recorded as members of the counterpart federal body of the organisation for which the exemption was granted in the body's register of members under the Commonwealth Act; or the body has contravened a_ requirement of the Commonwealth Act about keeping or filing records for its members; (c) if it was exempted from keeping an officers register— (i) (ii) not all of its officers are officers of the counterpart federal body of the organisation for which the exemption was granted; or the body has contravened a_ requirement of the Commonwealth Act about keeping or filing records for its officers. (2) The organisation must give the registrar notice of the happening of the event as soon as practicable after it becomes aware of the happening of the event. Maximum penalty—40 penalty units. (3) The organisation is taken to become aware of the happening of the event if an officer of the organisation becomes aware of it. Subdivision 3—Exemption from accounting or audit provisions Who may apply 586. An organisation, or 2 or more organisations jointly, may apply to the registrar for an exemption from the whole or part of part 12, divisions 2 CoNda uw BR Wh 12 15182125 29 s 587 362 s 587 Industrial Relations to 4154 if— (a) either— (i) there is only | applicant and the applicant has a counterpart federal body; or (11) there is more than | applicant and each applicant has the same counterpart federal body; and (b) the members of each applicant are recorded as members of the body in the body's register of members under the Commonwealth Act; and (c) the body is not a body for which a certificate has been issued under the Commonwealth Act, section 285.155 Grant of exemption 587.(1) The registrar may grant the exemption only if satisfied the counterpart federal body for which the application is to be granted has complied with each relevant Commonwealth provision. (2) The exemption remains in force for the period stated in it or, if no period is stated, until it is cancelled. (3) While the exemption is in force, each exempted provision does not apply to the organisation. (4) In this section— "relevant Commonwealth provision" means each provision of the Commonwealth Act, part 9, division 11156 that corresponds, or substantially corresponds, with each provision to be exempted. 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 FO UOUMAYNH AYN BPW N ee 1417 19 22 s 588 363 s 589 Industrial Relations Obligation to file copies of federal audit documents 588.(1) This section applies if the registrar has, under section 587, granted an exemption for an organisation that exempts it from presenting or filing audit reports or relevant accounts under part 12, division 4. (2) The organisation must, within 14 days after the filing under the Commonwealth Act, section 280,57 of any audit report or relevant accounts for its counterpart federal body, file a copy of the documents certified by the president or secretary of the body as being a true copy of the documents. Maximum penalty for subsection (2)—40 penalty units. Obligation to give notice of change or contravention 589.(1) This section applies to an organisation that has been granted an exemption under section 587 if any of the following events happen— (a) itno longer has a counterpart federal body; (b) its members are not recorded as members of the counterpart federal body of the organisation for which the exemption was granted in the body's register of members under the Commonwealth Act; (c) acertificate is issued for the body under the Commonwealth Act, section 285; (d) it has contravened a relevant Commonwealth provision under section 587 for which the exemption was granted. (2) The organisation must give the registrar notice of the event as soon as practicable after it becomes aware of the happening of the event. Maximum penalty—40 penalty units. (3) The organisation is taken to become aware of the happening of the event if an officer of the organisation becomes aware of it. 157 Section 280 (Reports etc. to be lodged in Industrial Registry) of the Commonwealth Act SC DAIDYN FPWHN 12 1517 19 21 23 26 s 590 364 s 592 Industrial Relations Division 2—Exemption from accounting or audit obligations for employer organisations that are corporations Who may apply 590. An employer organisation that is a corporation may apply to the registrar for an exemption from the whole or part of part 12, divisions 2 to 4,158 Grant of exemption 591.(1) The registrar may grant the exemption only if satisfied— (a) (b) (c) another Act or law imposes accounting and audit obligations on the organisation that are an adequate substitute for each provision to be exempted; and Examples of other laws that impose accounting and audit obligations— . the Corporations Law, chapter 2M159 . the Associations Incorporation Act 1981. the organisation has complied with the provisions of the other Act or law that correspond with or substantially correspond with each provision to be exempted; and if the exemption is granted, the organisation will continue to be financially accountable to its members. (2) The exemption remains in force for the period stated in it or, if no period is stated, until it is cancelled. (3) While the exemption is in force, each exempted provision does not apply to the organisation. Obligation to file copies of reports under other Act or law 592.(1) This section applies if— 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 aN WwW 11 131619 21 23 25 s 593 365 s 593 Industrial Relations (a) the registrar has, under section 591, granted an exemption for an organisation from the requirement to present or file audit reports or relevant accounts under part 12, division 4; and (b) another Act or law requires the organisation or its counterpart federal body to prepare and file with a person or body with regulatory functions for the organisation— (i) a financial report; or (11) a director's report; or (11) an auditor's report. (2) The organisation must, within 14 days after the report is filed under the other Act or law, file a copy of the report certified by its president or secretary as being a true copy of the report. Maximum penalty for subsection (2)—40 penalty units. Obligation to notify registrar of contravention of other law 593.(1) This section applies if an organisation has contravened a provision of another Act or law that corresponds, or substantially corresponds, with the provision for which an exemption under section 591 was granted. (2) The organisation must give the registrar notice of the contravention as soon as practicable after it becomes aware of the happening of the contravention. Maximum penalty—40 penalty units. (3) The organisation is taken to become aware of the happening of the contravention if an officer of the organisation becomes aware of it. aon ant WwW Ne 111618 2024 s 594 366 s 596 Industrial Relations Division 3—Exemptions from requirement that electoral commission conduct election Subdivision 1—Grant of exemption Who may apply 594.(1) An organisation or branch may apply to the registrar for an exemption from the requirement that the electoral commission conduct— (a) elections for the organisation or branch; or (b) an election for a particular office in the organisation or branch.!60 (2) For this section, if an organisation's rules require an office to be filled by an election by the members, or by some of the members, of 1 branch of the organisation, an election to fill the office is taken to be an election for the branch. Requirements for application 595.(1) An application may be made only if the management committee of the organisation or branch has— (a) resolved to make the application; and (b) notified the members of the organisation or branch, in the way prescribed under a regulation, of the making of the resolution. (2) The application must be accompanied by an affidavit by a member of the management committee stating subsection (1) has been complied with. Publication of application 596. The registrar must publish, in the way prescribed under a regulation, a notice stating details of the application. 160 For the requirement, see section 483 (Electoral commission to conduct elections). 15 18 20 23 s 597 367 s 599 Industrial Relations Hearing application 597. The registrar may grant the exemption only if satisfied as follows— (a) the rules of the organisation or branch comply with part 4; (b) if the exemption is granted, for each election to which the exemption applies— (i) the organisation's rules and the obligations under subdivision 2 and part 7 will be complied with; and (11) the election will be conducted in a way that gives the organisation's members who have the right to vote in the election an adequate opportunity of voting without intimidation; (c) subdivision 2 and part 7 have been complied with for any previous exemption granted to the organisation or branch under this subdivision;!61 (d) the IO Act, sections 51 and 52, have been complied with for any previous exemption granted under the IO Act, section 50,162 to the organisation or branch for which the exemption is sought. Subdivision 2—Obligations if exemption granted Application of sdiv 2 598. This subdivision applies to an organisation or branch for each election for which an exemption under subdivision | is granted. Obligation to appoint returning officer 599.(1) Before calling nominations for the election, the organisation or branch must— (a) appoint a returning officer to conduct the election; and 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 row ow ND nak Ww NY Re Ree ee RwWN RP Ree NAW 21 24 s 600 368 s 601 Industrial Relations (b) give the registrar— (i) notice of the returning officer's name; and (11) a statutory declaration sworn by the returning officer stating the returning officer is not an employee, member or officer of the organisation or a branch of the organisation; and (c) obtain the registrar's written approval of the returning officer's appointment. Maximum penalty—40 penalty units. (2) An employee, member or officer of the organisation or branch must not be appointed as the returning officer. Election result report 600. Within 14 days of the declaration of the result of the election, the returning officer for the election must give the registrar a written election result report for the election stating the particulars prescribed under a regulation. Maximum penalty—40 penalty units. Ballot records must be preserved 601. The following persons must take reasonable steps to ensure all ballot records given to them for the election are kept for | year after the declaration of the result of the election— (a) the returning officer for the election; (b) the organisation or branch for which the election is held; (c) an officer of the organisation or branch who performs a function for ballot records for the election. Maximum penalty—40 penalty units. oO TDW ND nABwW NHN e 1315 1922 24 s 602 369 s 602 Industrial Relations Division 4—Cancellation of exemptions Cancellation grounds 602.(1) An exemption under this part may be cancelled by the registrar only— (a) (b) if the holder of the exemption asks for its cancellation; or on a ground mentioned in subsection (2). (2) The grounds are as follows— (a) (b) (c) (d) (e) for an exemption under section 580— (i) _ the organisation no longer has a counterpart federal body; or (ii) the making of an order mentioned in section 581(1)(b); for an exemption under section 582 from keeping an officers register, the holder has contravened section 584; the happening of a contravention or an event for which the holder must, under division | or 2, notify the registrar; for an exemption under section 591, the registrar is no longer satisfied under section 591(1); for an exemption under section 597— (i) _ the registrar is no longer satisfied under section 597; or (ii) there has been a contravention of part 7 or division 3, subdivision 2 for an election for which the exemption was granted; or (111) the required number of members of the holder ask for the cancellation. 163 163 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) Cm NIN DN BW Bw e Oo aon Nw aon' Bw FR loon ioe ao Nn NNR re OO NN wh s 603 370 s 605 Industrial Relations Alternatives to cancellation for federal election exemption 603.(1) This section applies if the registrar considers an exemption under section 580 may be cancelled because an order mentioned in section 581(1)(b) has been made. (2) The registrar may— (a) amend the exemption instead of cancelling it; or (b) cancel it, but grant another exemption instead to reflect the terms of the order. PART 14—VALIDATIONS Division 1—Preliminary Definitions for pt 14 604. In this part— "act" includes decision. "collective body" of an organisation means— (a) its management committee; or (b) a conference, council, committee, panel or other body of, or within the organisation. "invalidity" includes defect. "organisation" includes a branch of an organisation. Division 2—Validations Limitation on validations if substantial injustice 605.(1) This division operates to validate an act or event only if the operation does not or will not cause substantial injustice to— CI HD Nn FWN 121417 19 23 s 606 371 s 606 Industrial Relations (a) the organisation to which the act or event applies or concerns; or (b) amember or creditor of the organisation; or (c) aperson dealing with, or who has dealt with, the organisation. (2) However, subsection (1) does not apply to sections 607 to 609. Validation of certain acts done in good faith 606.(1) This section applies to an act done in good faith by an organisation, a collective body or officer of an organisation or a purported collective body or officer of an organisation. (2) The act is not invalid only because— (a) ofan invalidity discovered later in— (i) _ the election or appointment of a collective body or officer of the organisation; or (11) the organisation's rules; or (111) making, amending or repealing a rule of the organisation; or (b) an absence of quorum or other procedural irregularity; or (c) the organisation has a counterpart federal body. (3) In this section— (a) an act is taken to be done in good faith unless proved otherwise; and (b) a person who has purported to be a member of a collective body is taken to have done so in good faith unless proved otherwise; and (c) knowledge of facts from which an invalidity arose is not by itself knowledge of the invalidity; and (d) an invalidity is taken not to be discovered until known by a majority of the members of the management committee of the organisation. (4) This section— (a) does not affect the operation of part 7 or an election inquiry under BR WwW NY Co AAD WN 131517 19 2124 2629 s 607 372 s 609 Industrial Relations part 8;164 and (b) does not validate an expulsion, suspension, fine or penalty for a member of the organisation if that act would not have been valid had this section not been enacted; and (c) applies to an action done— (i) before or after this section commences; or (11) concerning an association that became an organisation after the act was done. Certain acts by person purporting to act in an office 607.(1) This section applies if a person— (a) was apparently elected to an office in an election; and (b) the person has purported to act in the office since the election; and (c) the commission declares the person's election void. (2) The person's acts while purporting to act in the office that could have been validly done if the person were properly elected, are valid. Election not invalid because of compliance with order 608. An election or a step in an election conducted under a commission order is valid despite a contravention of the rules of an organisation or branch for which the election or step was conducted. Election not invalid because of contravention of pt 13, div 3, sdiv 2 609. If an exemption under part 13, division 3 applies to an election, a contravention of part 13, division 3, subdivision 2 does not invalidate the election.1!65 164 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) CN HA nA BwWH 1113 15 1822 s 610 373 s 611 Industrial Relations Validation of certain events after 4 years 610.(1) This section applies to an event as follows 4 years after the event happens— (a) the election or appointment, or purported election or appointment, to an office in an organisation; (b) a making or amendment, or purported making or amendment, of a rule of an organisation. (2) The event is taken to have been done under the organisation's rules. (3) However, this section does not affect a decision by the court or another court, the commission or the registrar made about the event before the 4 years ends. (4) This section applies to an event happening— (a) before or after this section commences; or (b) to an association before it became an organisation. (5) In this section— "decision" includes a decree, sentence, verdict and a similar act. Counterpart federal body not a ground for challenge 611.1) In proceedings, the validity of the following about an organisation can not be challenged or in any way affected only because of a ground mentioned in subsection (2)— (a) the organisation's existence or registration; (b) the election of an officer of the organisation; (c) arule of the organisation; (d) a decision made by or about the organisation; (e) the operation of a rule or a decision mentioned in paragraph (c) or (d). (2) The grounds are as follows— (a) the organisation has a counterpart federal body; (b) a person is a member of the organisation and its counterpart BR WN Se oe Se ew BR WN FOO OANKID WY re Hn wn 192224 26 28 s 612 374 s 612 Industrial Relations federal body and the organisation did not receive a separate membership application or fee from the member; (c) the organisation has the same, or substantially the same, rules as its counterpart federal body; (d) the organisation did not keep separate members or officers registers or accounting or other records from its counterpart federal body. Amalgamations and withdrawals 612.(1) This section applies if no proceedings have been taken to challenge— (a) an amalgamation, within 6 months after the amalgamation day for the amalgamation; or (b) a withdrawal, within 6 months after the withdrawal day for a withdrawal. (2) The following are taken to be, and to have always been, valid— (a) the amalgamation or withdrawal; (b) anything else done or purporting to have been done— (i) concerning the amalgamation or withdrawal; or (11) on which the validity of the amalgamation or withdrawal depends. (3) Subsection (2) has effect despite an order of the court, another court or tribunal, the commission or the registrar made before the end of the 6 months. (4) In this section— "amalgamation" includes a purported amalgamation and anything done or purporting to have been done under part 15 to give effect to an amalgamation or purported amalgamation. "withdrawal" includes a purported withdrawal and anything done or purporting to have been done under part 15 to give effect to a withdrawal or purported withdrawal. NAN BW NE 12 14 1618 20 222629 s 613 375 s 615 Industrial Relations Division 3—Orders about invalidity or its effects Commission may decide 613.(1) The commission may, on application, decide whether an invalidity has happened in— (a) the management or administration of an organisation's affairs; or (b) the election or appointment of an officer of an organisation; or (c) the making, amending or repealing of a rule of an organisation. (2) In deciding the application, the commission may declare whether or not an invalidity has happened. Who may apply 614. The application may be made only by— (a) the organisation; or (b) amember of the organisation; or (c) another person the commission considers has a sufficient interest in the subject matter of the application. Orders about effects of invalidity 615.(1) This section applies if, on the hearing of the application, the commission declares an invalidity has happened. (2) The commission may make an order it considers appropriate to— (a) remedy the invalidity or to cause it to be remedied; or (b) change or prevent, or cause to change or prevent, the effects of the invalidity; or (c) validate an act, matter or thing made invalid by or because of the invalidity. (3) The commission may also make another order consequential to an order under subsection (2). (4) The commission must not make an order under this section if the Cm ND NW BW Bw 1113 15 18 20 22 24 26 s 616 376 s 616 Industrial Relations order would cause substantial injustice to— (a) the organisation that the invalidity concerns; or (b) amember or creditor of the organisation; or (c) aperson dealing with or who has dealt with the organisation. PART 15—AMALGAMATIONS AND WITHDRAWALS Division 1—Preliminary Definitions for pt 15 616. In this part— "amalgamated organisation" means an organisation amalgamated under division 2 or the IO Act, part 9.166 "amalgamation ballot" means a ballot for a proposed amalgamation under division 2. "amalgamation day", for an amalgamation or proposed amalgamation, means the day the amalgamation takes effect or is to take effect. "constituent part", for an amalgamated organisation, means a part of the membership of the amalgamated organisation that would have been eligible for membership of an organisation deregistered for the formation of the amalgamated organisation had the deregistration not happened. "existing organisation" means an organisation concerned in a proposed amalgamation. "newly registered organisation" means an organisation registered under section 625. 166 Part 9 (Amalgamating industrial organisations) of the IO Act BR WwW NY 11 13 15 171922 24 s 617 377 s 619 Industrial Relations "proposed amalgamated organisation", for a proposed amalgamation, means the existing organisation or proposed organisation that members of the proposed deregistering organisations propose to become members of under division 2. "proposed deregistering organisation", for a proposed amalgamation, means an organisation that is, under division 2, to be deregistered as part of the amalgamation. "withdrawal ballot" means a ballot for a proposed withdrawal. "withdrawal day", for a withdrawal or proposed withdrawal, means the day the withdrawal is to take effect. Division 2—Amalgamations Amalgamation permitted only under div 2 617. An amalgamation may be carried out only under this division. Commission to approve proposed amalgamation 618. The commission may, by order, approve an amalgamation only if— (a) the procedure for carrying out an amalgamation prescribed under a regulation has been complied with; and (b) the rules of the proposed amalgamated organisation comply with parts 3 and 4167, Additional regulation-making powers for amalgamations 619. A regulation may provide for the following— (a) the joint representation of the members of existing organisations for an amalgamation until the amalgamation day for the amalgamation; (b) for an amalgamation ballot by proposed members of the 167 Part 3 (General content of rules) and 4 (Election rules) CSCO DH NDWN FwWwWNe 13 15 17 19 21 23 s 620 378 s 620 Industrial Relations proposed amalgamated organisation; (c) how an amalgamation ballot must be conducted; (d) that the commission may inquire into any claimed irregularity in an amalgamation ballot and its powers for the inquiry; (e) for when an approved amalgamation takes effect; (f) the effect of an amalgamation on decisions that bound a proposed deregistering organisation for the amalgamation on the amalgamated organisation or its members; (g) substituting the amalgamated organisation for a proposed deregistering organisation for the amalgamation in pending proceedings; (h) any other matter necessary to give effect to an amalgamation. Effect of amalgamation 620.1) This section applies on the amalgamation day for an amalgamation. (2) If the proposed amalgamated organisation for the amalgamation is not already registered, the registrar must— (a) enter in the register its name and the amalgamation day; and (b) give it a certificate of registration in the approved form. (3) If the amalgamated organisation was not incorporated before the entry in the register, section 423 applies to the organisation as if the commission had granted a registration application under part 2 on the amalgamation day. (4) Despite part 6, a proposed amendment of the rules of an existing organisation for the amalgamation takes effect. (5) If there is a proposed deregistering organisation for the amalgamation— (a) sections 648 to 650 and 653 apply to the organisation as if a deregistration order had been made for it; and (b) its property and liabilities vest in the amalgamated organisation; and re oO COND NA HW WN ee a N 15 17 19 2124 26 28 30 s 621 379 s 621 Industrial Relations (c) its members become members of the amalgamated organisation, without requirement to pay an entrance fee. (6) The amalgamated organisation must take all necessary steps to give effect to the amalgamation. !68 Holding office after amalgamation 621.(1) This section applies to the rules of an amalgamated organisation or proposed amalgamated organisation if the organisation is not a corporation. (2) Despite parts 3 and 4, the rules may allow an officer (an "existing officer") of a proposed deregistering organisation or existing organisation who holds office immediately before the amalgamation day for the amalgamation to be an officer of the proposed amalgamated organisation. (3) However, the rules must not allow the existing officer to hold office in the amalgamated organisation without an ordinary election for more than the longer of — (a) the existing officer's unexpired term immediately before the amalgamation day; or (b) 2 years from the amalgamation day. (4) The rules must make reasonable provision for synchronising the election with elections for other offices in the organisation. (5) Section 433 applies to an office in an amalgamated organisation held by an existing officer of a deregistered organisation for the amalgamation. (6) Section 436 does not apply to an office in an amalgamated organisation held by an existing officer. 169 168 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) KR WwW Ne CID Nn 12 1417 20 22 24 s 622 380 s 624 Industrial Relations Division 3—Withdrawing from amalgamation Requirements for withdrawal 622. A constituent part may withdraw from an amalgamated organisation only if— (a) the constituent part became part of the organisation because of an amalgamation under this division or the IO Act, part 9;170 and (b) the amalgamation happened not more than 2 years before the proposed withdrawal; and (c) the withdrawal is carried out under this division. Commission to approve proposed withdrawal 623. The commission may, by order, approve a withdrawal only if— (a) the procedure for carrying out a withdrawal prescribed under a regulation has been complied with; and (b) the rules of the constituent part of a proposed organisation comply with parts 3 and 4. Additional regulation-making powers for withdrawals 624. A regulation may provide for the following— (a) a proposed withdrawal to be submitted to a ballot of members of the constituent part seeking the withdrawal; (b) how a ballot must be conducted; (c) that the commission may inquire into any claimed irregularity in a withdrawal ballot and its powers for the inquiry; (d) for when an approved withdrawal takes effect; (e) the appointment of officers of an amalgamated organisation as officers of a newly registered organisation, and the results of the 170 Part 9 (Amalgamating industrial organisations) of the IO Act CO ANI DYN FY 11 13 15 17 19 22 25 s 625 381 s 627 Industrial Relations appointments; (f) any other matter necessary to give effect to a withdrawal. Registration of constituent part on withdrawal 625.(1) On the withdrawal day for a withdrawal the registrar must— (a) enter in the register the withdrawal and the constituent part's name as an organisation; and (b) give the organisation a certificate of registration in the approved form. (2) Section 423171 applies to the organisation as if the commission had granted an application for its registration under part 2 on the withdrawal day. Members of constituent part may join newly registered organisation 626.(1) This section applies to a person who is a member of the amalgamated organisation from which a constituent part withdrew to form a newly registered organisation. (2) The person may, if the person is eligible for membership, become a member of the newly registered organisation without paying an entrance fee. Division 4—Offences about amalgamation or withdrawal ballots Obstructing conduct of ballot 627. A person must not obstruct another person conducting an amalgamation or withdrawal ballot. Maximum penalty—40 penalty units. 171 Section 423 (Incorporation on registration if not already incorporated) SO ON AN BW e 131621 s 628 382 s 629 Industrial Relations Offences about ballots 628. A person must not, without lawful authority or excuse, do any of the following about an amalgamation or withdrawal ballot— (a) (b) 0) (k) obtain or possess a ballot paper if the person does not have the right to obtain or possess it; pretend to be and vote as someone else; amend, deface, destroy, interfere with, or remove a ballot record; vote in the ballot if the person does not have the right to vote; vote more than once; forge a ballot record; utter a ballot record knowing it to be forged; give a ballot record to someone else; put a ballot record in a ballot box or other container used for the ballot (a "ballot box") if the person does not have the right to vote; deliver or post a ballot record to another person performing functions for the ballot if the person does not have the right to deliver or post it; destroy, interfere with, open, or remove a ballot box. Maximum penalty—80 penalty units. Disadvantaging another to induce vote or omission to vote 629.(1) A person must not cause, inflict or procure a disadvantage to anyone or anything because of, or to induce— (a) (b) a vote or omission to vote in an amalgamation or withdrawal ballot (a "ballot"); or a promise of a vote or omission to vote in a ballot. Maximum penalty—80 penalty units. (2) In this section— "cause" a disadvantage includes offering, suggesting and threatening a Cm XN DA WR WHY LY Se Be NF oO Ree nan BW eee wornad NO Fe Co Oo 23 25 2729 s 630 383 s 632 Industrial Relations disadvantage. "disadvantage" includes damage, detriment, injury, loss, punishment and violence. Unauthorised access to ballot paper 630. A person must not, without lawful authority or excuse— (a) ask, require or induce another person to show to or permit the person to see a ballot paper for an amalgamation or withdrawal ballot so the person can see the vote recorded in the ballot paper— (i) while the paper is being marked; or (11) after it has been marked; or (b) if the person is performing functions for an amalgamation or withdrawal ballot—show to or permit anyone else access to a ballot paper used in the ballot, other than to perform the functions. Maximum penalty—80 penalty units. Division 5—Miscellaneous Using resources for proposed amalgamation 631.(1) An existing organisation for a proposed amalgamation may use its financial and other resources to support the proposed amalgamation if— (a) its management committee has resolved to do so; and (b) the committee has given reasonable notice of its resolution to the organisation's members. (2) Subsection (1) does not limit an existing organisation's other powers to use its financial and other resources for the proposed amalgamation. Costs of ballot conducted by electoral commission 632. The costs of an amalgamation or withdrawal ballot conducted by the electoral commission under this part are payable by the State. w CMOID WA 13 18 21 23 26 s 633 384 s 635 Industrial Relations No action for defamation in certain cases 633. A civil proceeding for defamation does not lie against the following for printing or publishing a document for an amalgamation or withdrawal ballot— (a) the State; (b) an electoral commission; (c) an electoral officer; (d) another person who may, under this chapter, conduct the ballot; (e) a person asked to act for, or at the direction of, a person mentioned in paragraphs (a) to (d). Commission may resolve difficulties 634.(1) A person with sufficient interest may apply to the commission for an order— (a) ifa difficulty arises, or is likely to arise, in carrying out or giving effect to an amalgamation or withdrawal or in applying this part to another matter; or (b) for the taking of a step necessary to give effect to the amalgamation or withdrawal. (2) The commission may make an order it considers appropriate to resolve the difficulty or to give effect to a step necessary for the amalgamation or withdrawal. (3) The order has effect despite the rules of an organisation. Registration of property transferred under pt 15 635.(1) This section applies if— (a) property becomes the property of an amalgamated organisation (a "transferee") because of an amalgamation; or (b) property of an amalgamated organisation becomes the property of a newly registered organisation (also a "transferee") because of a withdrawal. SCO ON DWN BWHNH Le e 13 1518 2024 26 28 s 635 385 s 635 Industrial Relations (2) A certificate by an authorised person for a transferee is evidence of the property having become the transferee's property if the certificate— (a) is signed by the person; and (b) identifies the property; and (c) states the property has, under this part, become the transferee's property. (3) If the certificate is given to a person with registration functions for that kind of property under a law of the State, the person must do the following as if the certificate were an appropriate instrument of transfer of the property— (a) register the matter in the same way as transactions for property of that kind; (b) deal with, and give effect to, the certificate. Examples of 'a person with registration functions '— . the Registrar of Titles . the Australian Securities and Investment Commission. (4) Subsection (3) applies despite the Corporations Law, section 268 or the Corporations Law, chapter 7, part 7.13.172 (5) A transfer of the property to the transferee may be registered or given effect to under the law of another State if— (a) the certificate is given to a person with functions for registration of property of that kind under the other State's law; and (b) the person is permitted by law to do so. (6) In this section— "authorised person", for an amalgamated organisation or a newly registered organisation, means its secretary or a person with its management committee's written authority. 172 Section 268 (Assignment and variation of charges) and chapter 7, part 7.13 (Title to, and transfer of, securities) of the Corporations Law orn An FF Ww NKR e ow aon Nw Fe ee aHnn WwW ile' on Ne cow Nw Ne NN KR Ww NO wpohd Nan s 636 386 s 637 Industrial Relations Part applies despite laws or instruments 636.(1) This part applies despite another Act or an instrument. (2) Nothing done under this part— (a) makes an organisation or other person liable for a civil wrong or a contravention of a law or for a breach of a confidence or contract; or Example of a 'contract'— A contractual provision that prohibits, restricts or regulates assigning or transferring an asset or liability or disclosing information. (b) releases a surety's obligations, wholly or in part. (3) If apart from this section a person's consent would be necessary to give effect to this part, the consent is taken to have been given. (4) In this section— "instrument" means any written or oral instrument, express or implied. Examples of an 'instrument' — . a contract, deed, undertaking or agreement . a mandate, instruction, notice, authority or order . a lease, licence, transfer, conveyance or other assurance . a guarantee, bond, power of attorney, bill of lading, negotiable instrument or order to pay an amount . a mortgage, lien or security. PART 16—DEREGISTRATION Division 1—Preliminary Definitions for pt 16 637. In this part— "deregistration order" see section 638. Cm NN ANR WN 131618 20 26 s 638 387 s 638 Industrial Relations "industrial conduct ground" means a ground mentioned in section 638(a) to (c). "members" of an organisation means— (a) asubstantial number of the organisation's members; or (b) asection or class of its members. "small organisation" means— (a) an employee organisation that has less than 20 members who are employees; or (b) an employer organisation whose employer members have, in total, employed a monthly average of less than 20 employees during any 6 month period. Division 2—General deregistration provisions Subdivision 1—Bringing deregistration proceedings General deregistration grounds 638. The full bench may order the deregistration of an organisation (a "deregistration order") on any of the following grounds— (a) achieving the objects of the Act has been prevented by— (i) the organisation's or its members' continued contravention of a commission order or an industrial instrument (an "instrument"); or (11) the organisation's continued failure to ensure its members do not contravene an instrument; or (111) any other conduct by the organisation or its members; (b) the organisation or its members are engaging in industrial action that has prevented or interfered with— (i) trade or commerce; or (11) providing a public service; re OO ON Dn nA fF WY NK ee a N 16 1922 25 27 s 639 388 s 639 Industrial Relations (c) the organisation or its members have been, or are, engaging in industrial action that has, is having, or is likely to have a substantial adverse effect on the safety, health or welfare of the community or a part of the community; (d) the organisation was registered by mistake; (e) the organisation's rules— (i) do not allow a person who is eligible to become a member of the organisation to join it with reasonable ease; or (11) impose unreasonable conditions on a person's continuing membership of the organisation; or (11) are harsh or oppressive; or (iv) provide for it to end on the happening of an event and the event has happened; (f) the administration of the organisation's rules is harsh or oppressive; (g) a majority of the organisation's members have agreed to its deregistration; (h) if the organisation is an employee organisation, it is not free from control by, or improper influence from an employer or an employer association or organisation. Who may bring deregistration proceedings 639.1) Each of the following may apply to the full bench for a deregistration order on a ground mentioned in section 638— (a) an organisation; (b) the Minister; (c) the registrar; (d) another person given leave by the full bench. (2) The full bench may give leave only if it considers the person has sufficient interest to make the application. (3) The full bench may, of its own initiative, bring proceedings for a 23 2527 29 s 640 389 s 641 Industrial Relations deregistration order— (a) ona ground mentioned in section 638(d) or (e)(iv); or (b) because the organisation has failed to comply with a demarcation dispute undertaking and amendment of its eligibility rules is inappropriate. (4) The registrar may also apply for a deregistration order on the ground that the organisation is defunct. Subdivision 2—Deciding deregistration proceedings Hearing on ground other than industrial conduct 640. If a ground on which the proceedings are based includes a ground other than an industrial conduct ground, the full bench may make a deregistration order if satisfied the ground has been made out. Hearing on industrial conduct ground 641.(1) This section applies if at the hearing of the application a ground on which the proceedings are based is an industrial conduct ground. (2) The full bench must make a deregistration order if it— (a) finds the ground has been made out; and (b) does not consider the deregistration unjust, after considering— (i) the significance of the circumstances forming the ground; and (11) the action taken by or against the organisation about the ground. (3) However, if the full bench finds the industrial conduct ground is made out wholly or mainly because of conduct by a section or class of the organisation's membership, it may instead of making a deregistration order— (a) order amendments the organisation's eligibility rules to exclude persons from the section or class from membership eligibility; or ND nABwW NHN 1115 1720 22 24 26 28 s 642 390 s 642 Industrial Relations (b) exclude a stated person from the organisation's membership. (4) A deregistration order may also prohibit the deregistered organisation from applying for registration before a stated day. Deferral of deregistration for industrial conduct 642.(1) This section applies if the full bench may make a deregistration order under section 641. (2) The full bench may defer its decision on making the deregistration order and make an order (a "deferral order")— (a) suspending to a stated extent, the rights, privileges or capacities of the organisation or all or any of its members as members, under— (i) this Act; or (11) a commission order; or (111) an award, certified agreement, EFA or industrial agreement; or (b) directing how a suspended right, privilege or capacity may be exercised; or (c) restricting the organisation or its branches in using their funds or property and controlling the funds or property to enforce the restriction. (3) If a deferral order is made, the full bench must defer its decision on making the deregistration order until— (a) ifa party to the proceedings applies—the court considers it is just to make the decision considering— (i) evidence given about compliance with the order; and (11) other relevant circumstances; or (b) the order ends. (4) A deferral order has effect despite the rules of the organisation or its branches. w BEow OXI DAWN pp Re eS N = w = ee AR Ree na Nee SOM NN Ne N RBS NON NY NY nN nw NN \o co s 643 391 s 646 Industrial Relations When deferral order ends 643.(1) A deferral order ends— (a) 6 months after it takes effect, if the full bench has not extended the order before that time; or (b) if the full bench has extended the order—at the end of the extension; or (c) if itis discharged by the full bench. (2) The full bench may discharge or extend a deferral order only on the application of a party to the deregistration proceedings. (3) An extension application may only be made before the time mentioned in subsection (1)(a). Incidental orders or directions 644. If the full bench makes a deregistration order, it may also make— (a) an order or direction it considers appropriate to give effect to the deregistration; or (b) an order under section 652(2),!73 whether or not anyone has applied for the order. Division 3—Small organisations Commission may review 645. The commission may review an organisation to inquire whether the organisation is or may be a small organisation. Deregistration proceedings by commission 646.(1) If the commission considers an organisation is or may be a small organisation, it may bring deregistration proceedings under this division against the organisation. 173, Section 652 (Effect on property) rr O ono AI NW BW NY YH ee on wieN Ree ns Ree na 21 24 s 647 392 s 650 Industrial Relations (2) However, the commission must not bring proceedings under this division more than once a year against the same organisation. Deciding proceedings 647.(1) The commission must make a deregistration order if satisfied the organisation is a small organisation. (2) However, the commission may decide not to make the order if satisfied there are special circumstances and the organisation's continued registration is in the public interest. Example of 'special circumstances '— The organisation is an employee organisation and the commission is satisfied the organisation will in the near future, if its registration is continued, have more than 20 members who are employees. Division 4— Effects of deregistration Application and purpose of div 4 648.(1) This division applies on the making of a deregistration order. (2) This division provides for the effects of the order on the deregistered organisation under the order and on other persons. When deregistration takes effect 649.(1) The deregistered organisation ceases to be an organisation when the deregistration order is made. (2) The registrar must record the deregistration and date of the order in the register. Effect on corporate status 650.(1) If the deregistered organisation was a corporation under another law, the deregistered organisation continues to be incorporated, but only under the other law. COND ADH w 12 15 17 20 22 26 s 651 393 s 652 Industrial Relations (2) If the deregistered organisation was incorporated only because of its registration— (a) it ceases to be incorporated and becomes an association; and (b) its name is taken to be changed to omit the words required to be included in its registered name under section 424(2);!74 and (c) its rules continue in force to the extent they can still be carried out or complied with. No release of liabilities 651. The deregistration does not act to satisfy a liability or penalty incurred by the deregistered organisation or any of its members before the deregistration. Effect on property 652.(1) If the deregistered organisation was incorporated only because of its registration, property owned by it immediately before the deregistration must be— (a) held and used under its rules, to the extent they can still be carried out or complied with; and (b) applied for the purposes of the deregistered organisation under its rules. (2) Despite subsection (1), the full bench may, if an interested person applies, make an order it considers appropriate to satisfy the deregistered organisation's liabilities from the property. (3) In this section— "rules" of the deregistered organisation means its rules in force immediately before its deregistration. 174 Section 424 (Registered name of organisation that is not a corporation) NAYAaD WF WY NK 11 1417 19 2125 s 653 394 s 654 Industrial Relations Effect on certain instruments 653.(1) If an award, EFA, commission order, certified agreement or industrial agreement (the "instrument") bound the deregistered organisation and its members before the deregistration— (a) from the deregistration, the deregistered organisation and its members do not have the right to a benefit under the instrument; and (b) the instrument ceases to have any effect for the deregistered organisation 21 days after the deregistration. (2) Despite subsection (1)(b), the commission may make an order it considers appropriate about the effect, if any, of the instrument on the deregistered organisation and its members. PART 17—MISCELLANEOUS Hearing to be given before making decision 654.(1) The court, commission or registrar (the "industrial tribunal") must, before making a decision under this chapter, give the following persons an opportunity to be heard about whether the decision should be made— (a) a person who applied for the decision or from whose application the decision is proposed to be made; (b) a person in relation to whom the decision is sought or may be made; (c) a person who may object to the making of the decision who has objected in the way required under this chapter; (d) an organisation the decision concerns; (e) any other person the industrial tribunal considers should be heard or who has a sufficient interest in the making of the decision. (2) However, subsection (1) does not apply if the person asks the industrial tribunal to make a stated decision and it considers the decision Cm ADNAN BRwWHN 12 1618 20 22 24 27 29 s 655 395 s 655 Industrial Relations may be made without prejudicing the rights of a person or for other sufficient reason. (3) A regulation may provide for— (a) objections to the making of a decision under this chapter; or (b) the way in which the opportunity to be heard must be given. (4) In this section— "decision" includes— (a) an amendment ofa rule of an organisation, other than a correction of a formal or clerical error; and (b) areferral. Notice of registrar's decisions 655.(1) This section applies if the registrar makes a decision as follows— (a) to refuse an application made to the registrar under this chapter; (b) under section 450 to cancel an approval under section 449 or cancel or to amend an exemption under part 13 if the holder of the approval or exemption has not asked for the cancellation or amendment; (c) under section 461(3) or 512(3)!75 for an amount of financial help to be given to a person; (d) to amend an organisation's rules under section 467; (e) to refuse, under section 502, to refer an application for an election inquiry to the commission. (2) The registrar must promptly give the applicant, person who held the cancelled exemption, organisation or person to be given financial help, a notice stating the following— (a) the decision; 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) Oo eo ~ an Nn & w Ne e Oo 121517 19 22 24 s 656 396 s 658 Industrial Relations (b) the reasons for the decision; (c) that the person to whom the notice is given may appeal to the full bench against the decision within 21 days; (d) how to start an appeal.!76 Falsely obtaining organisation's property 656. A person must not obtain possession of an organisation's property by false representation or imposition. Maximum penalty—40 penalty units. Wrongfully applying organisation's property 657. A person in possession of an organisation's property must not— (a) wilfully withhold it from a person who has the right to possess it; or (b) fraudulently misapply it; or (c) wilfully apply it to a use not authorised under the organisation's rules. Maximum penalty—40 penalty units. Stamp duty 658. Despite any other Act, stamp duty is not payable on— (a) acertificate executed under, or to give effect to, this chapter; or (b) an instrument that transfers or evidences or relates to the transfer of property— (i) from trustees of an organisation to the organisation; or (11) to an organisation because of an amalgamation or withdrawal. 176 See sections 342 (Appeal from commission, magistrate or registrar) and 346 (Time limited for appeal) BR WYN ao ntniwn 12 15 1821 24 s 659 397 s 660 Industrial Relations CHAPTER 13—OFFENCES Disobeying penalty orders 659.(1) A person must obey a penalty order, unless the person has a reasonable excuse. Maximum penalty—the penalty provided for in the order. (2) In this section— "penalty order" means an order of the court or commission that provides for payment of a penalty if the order is disobeyed. Improper conduct towards member, magistrate or registrar 660.(1) A person must not— (a) interrupt an industrial tribunal's proceedings; or (b) create, take part in, or continue a disturbance in or near a place where an industrial tribunal's proceedings are being conducted; or (c) wilfully insult an official, including by using insulting language; or (d) by writing or speech, use words intended to— (i) improperly influence an official; or (11) improperly influence a witness before an industrial tribunal; or (11) bring an official or industrial tribunal into disrepute. Maximum penalty—100 penalty units or 1 year's imprisonment. (2) A person who commits an offence under this section before an industrial tribunal may, by the tribunal's order, be excluded from the place where the tribunal is sitting. (3) The making of an order under subsection (2) does not affect the offender's liability to be punished for the offence. (4) A police officer, or a person acting under the industrial tribunal's authority, may enforce the tribunal's order, using necessary reasonable oN DW PW Bw 11 13 15 17 19 21 2326 28 s 661 398 s 662 Industrial Relations force. (5) In this section— "industrial tribunal" means the commission, an Industrial Magistrates Court or the registrar. "official" means a member, a magistrate or the registrar exercising jurisdiction or powers or performing functions under this or another Act. Contempt by witness 661.(1) A person must not, without lawful authority or excuse— (a) if called to appear before an industrial tribunal—disobey the attendance notice requiring the appearance; or (b) if appearing before an industrial tribunal, whether or not in response to an attendance notice— (i) refuse to be sworn or to make an affirmation or declaration as a witness; or (11) refuse to answer a question that the person is required by the tribunal to answer; or (111) refuse to produce records that the person is required by the tribunal to produce. Maximum penalty—40 penalty units. (2) In this section— "industrial tribunal" means the commission, an Industrial Magistrates Court or the registrar. False or misleading statements 662.(1) A person must not state anything to an official for this Act that the person knows is false or misleading in a material particular. Maximum penalty—40 penalty units. (2) It is enough for a complaint against a person for an offence against subsection (1) to state that the statement made was 'false or misleading' to NADUN Fw N 11 13 15 17 19 21 23 26 29 s 663 399 s 663 Industrial Relations the person's knowledge. (3) A person must not be prosecuted for an offence under this section if the person can be prosecuted for an offence under section 223 or 283.177 (4) In this section— "official" means an inspector or the registrar. False or misleading documents 663.(1) A person must not, for this Act, give an official a document containing information the person knows is false or misleading in a material particular. Maximum penalty—40 penalty units. (2) Subsection (1) does not apply to a person if the person, when giving the document— (a) informs the official, to the best of the person's ability, how it is false or misleading; and (b) if the person has, or can reasonably obtain, the correct information—gives the correct information. (3) A person must not make an entry in a document required or permitted to be made or kept under this Act knowing the entry to be false or misleading in a material particular. Maximum penalty—40 penalty units. (4) It is enough for a complaint against a person for an offence against subsection (1) or (3) to state that the statement made was 'false or misleading' to the person's knowledge. (5) A person must not be prosecuted for an offence under this section if the person can be prosecuted under section 201 or 283.178 (6) In this section— 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) vn FB WhrnN Corn a 14 16 182225 s 664 400 s 665 Industrial Relations "official" means an inspector, an authorised industrial officer or the registrar. Obstructing officers 664.(1) A person must not— (a) obstruct an officer exercising a power, or performing a function, under this or another Act; or (b) if lawfully required by an officer to produce or exhibit a document, or to allow a document to be examined—fail to comply with the request, unless the person has a reasonable excuse; or (c) wilfully mislead an officer in a way likely to affect the performance of the officer's function; or (d) if lawfully asked a question for this or another Act by an officer—fail to answer the question truthfully and to the best of the person's knowledge, information and belief. Maximum penalty—40 penalty units. (2) A person must not be prosecuted for an offence under subsection (1) if the person can be prosecuted under section 283.179 (3) In this section— "officer" means an officer of the court or commission. Avoiding Act's obligations 665.(1) An employer, with intent to avoid an obligation under this Act to pay an employee for a public holiday or leave, must not— (a) dismiss the employee; or (b) if the employee's entitlement to long service leave is worked out under section 47180—interrupt the employee's continuity of 179 Section 283 (Power to enter and inspect) 180 Section 47 (Continuity of service—additional considerations for casual employees) Ne oN AN BW 12 1418 20 23 26 s 666 401 s 666 Industrial Relations service. Maximum penalty—40 penalty units. (2) If the Industrial Magistrates Court finds an employer has contravened subsection (1) in relation to long service leave, it must order the defendant to pay the dismissed employee a proportionate amount of long service leave on the basis of 13 weeks leave for 15 years service. (3) The order is in addition to any order it may make imposing a penalty. (4) In this section— "dismiss" includes stand-down. "leave" means annual, sick, family or long service leave. "obligation" under this Act includes an obligation under an industrial instrument. Non-payment of wages 666.(1) A person must pay an employee's wages under a relevant industrial instrument or permit— (a) to the employee; or (b) in accordance with the employee's written direction. Maximum penalty—200 penalty units. (2) An offence under subsection (1) may consist of— (a) asingle failure to pay wages due on a particular day; or (b) a failure to pay wages due over a period of time. (3) The offence starts on the day of the failure and continues until the wages are paid. (4) A complaint or a series of complaints may be made for any period over which the offence continues. (5) However, a complaint may only relate to offences that started within 6 years before the complaint is made. (6) A magistrate may hear and decide a complaint for an offence under this section, and in addition to any penalty that the magistrate may impose— Co ON DUN FW NY e Oo aon Nw 15 171921 23 25 27 29 s 667 402 s 668 Industrial Relations (a) if the magistrate finds the defendant guilty—must order the defendant to pay the employee the amount the magistrate finds to be payable to the employee; or (b) if the magistrate does not find the defendant guilty—may order the defendant to pay the employee the amount the magistrate finds, on the balance of probabilities, to be payable to the employee. (7) A magistrate may make the order— (a) despite an express or implied provision of an agreement to the contrary; and (b) on the terms the magistrate considers appropriate. Accepting reduced wages 667.(1) An employee must not agree with an employer to accept wages that, to the employee's knowledge, are reduced wages. Maximum penalty—16 penalty units. (2) The return by or for an employee to or for the employer of a part of wages paid under a relevant industrial instrument or permit for work performed by the employee is evidence that the employee has entered into an agreement mentioned in subsection (1). Publishing statement about employment on reduced wages 668.(1) A person must not publish or cause to be published, whether or not for reward, a statement that can be reasonably interpreted to state that a person is ready and willing to— (a) employ a person on reduced wages; or (b) be employed on reduced wages. Maximum penalty—16 penalty units. (2) Proceedings for an offence under subsection (1) may be commenced against a publisher of the statement only if— (a) the publisher has been warned by an inspector that the publication of the statement, or of a statement substantially similar, is an CO mM NDUNHR WNK eS an 14 1719 222528 30 s 669 403 s 669 Industrial Relations offence under this Act; and (b) the publisher has published, or caused the publication of, the statement after receiving the warning; and (c) the Minister's consent to the proceedings is obtained. (3) A proprietor of a newspaper or advertising medium is taken to have published the statement with knowledge of its unlawfulness, unless the proprietor shows that the proprietor— (a) had taken all reasonable precautions against committing the offence; and (b) had reasonable grounds to believe, and did believe, the publication to be lawful; and (c) had no reason to suspect the publication was unlawful. (4) In this section— "publish" includes— (a) exhibit; and (b) broadcast; and (c) publish to a person. "publisher" means— (a) the printer or proprietor of a newspaper; or (b) the distributor or seller of a newspaper; or (c) the printer, maker, operator or proprietor of an advertising device or advertising medium; or (d) the printer of a document uttered for advertising purposes; or (e) a person acting under the authority of a person mentioned in paragraphs (a) to (d). Offence to offer or accept premiums 669.(1) This section applies subject to the Private Employment Agencies Act 1983. (2) A person must not— FESO CHM ARN FB WN | NB Be eB eB Be ew ew em ek SO mM RQ AHA BR WD NN Ne N we Nw Aw 28 s 670 404 s 670 Industrial Relations (a) offer an employment premium; or (b) demand an employment premium; or (c) ask for an employment premium; or (d) accept, or agree to accept, an employment premium. Maximum penalty—16 penalty units. (3) If a court finds a person (the "defendant") guilty of accepting an employment premium, it must, in addition to any penalty order it may make, order the defendant to pay an amount, equivalent to the amount or value of the premium, to the person from whom the defendant accepted the premium. (4) In this section— "employment premium" includes a consideration, gift, allowance or forbearance for the employment of a person. Contraventions of industrial instruments 670.(1) A person must not contravene an industrial instrument. Maximum penalty— (a) fora first offence— (i) if the offender is an employer that is a body corporate or an organisation—80 penalty units; or (11) if the offender is an employer that is not a body corporate—16 penalty units; or (iii) if the offender is an employee—16 penalty units; or (b) for a second or subsequent offence consisting of a contravention of the same provision of the instrument— (i) if the offender is an employer that is a body corporate or an organisation—100 penalty units; or (11) if the offender is an employer that is not a body corporate—20 penalty units; or (ii) if the offender is an employee—20 penalty units. CSCOMWOND UU FP WW NY eS an lon' wn 1517 19 21 24 26 28 s 671 405 s 671 Industrial Relations (2) For subsection (1), a second or subsequent offence is taken to be a first offence if more than 1 year has passed since the commission of the last similar offence of which the person was found guilty. (3) An employer who pays, directly or by an agent, an employee, and an employee who receives from an employer, or the employer's agent, reduced wages is each taken to have contravened the instrument. (4) If an employee returns to an employer, or the employer's agent, a part of wages paid to the employee under an industrial agreement— (a) the employee is taken to have received reduced wages; and (b) the employer, or the employer's agent, is taken to have paid reduced wages; unless the return is in discharge, or partial discharge, of a lawful debt or obligation of the employee. Injunction restraining contraventions 671.(1) This section applies if a person has been found guilty of an offence involving the contravention of an industrial instrument or permit or this Act. (2) If satisfied the contravention consisted of the person's wilful action or default, the court, on application made to it, may grant an injunction restraining the person from— (a) continuing the contravention; or (b) committing further contraventions of the instrument or permit or this Act, whether similar to or different from the contraventions the person has been found guilty of. (3) The person must obey the injunction. Maximum penalty for subsection (3)—200 penalty units. EO © MONI AWNB WHE ee lon' wn 16192326 s 672 406 s 673 Industrial Relations Persons considered parties to offences 672. Without limiting the Criminal Code, section 7,18! an organisation or person who— (a) takes part in the commission of an offence under this Act; or (b) counsels or procures or aids the commission of an offence under this Act; or (c) encourages the commission of an offence under this Act; or (d) is concerned, directly or indirectly, in the commission of an offence under this Act; is taken to have committed the offence and to be liable to the penalty prescribed for the offence. Executive officers must ensure corporation complies with ss 368, 406 and 666 673.(1) If a corporation commits an offence against section 368, 406 or 666,!82 the executive officers of the corporation— (a) are also taken to have committed the offence; and (b) are liable to the prescribed penalty and any other order the magistrate may make under the section. (2) It is a defence for an executive officer to prove— (a) if the officer was in a position to influence the conduct of the corporation in relation to the offence—the officer exercised reasonable diligence to ensure the corporation complied with the section; or (b) the officer was not in a position to influence the conduct of the corporation in relation to the offence. (3) In this section— 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) = 5S ©xH YAWN B&B WH 13 15 18 2123 25 s 674 407 $677 Industrial Relations "executive officer" of a corporation means a person who is concerned with, or takes part in, the corporation's management, whether or not— (a) the person is a director; or (b) the person's position is given the name of executive officer. Attempt to commit offence 674. A person who attempts to commit an offence under this Act— (a) commits an offence; and (b) is liable to the same penalty as if the offence attempted had been committed. References to making false or misleading statements 675. A reference to a person making a statement knowing that it is false or misleading includes a reference to the person making the statement being reckless about whether the statement is false or misleading. References to engaging in conduct 676. A reference to a person engaging in conduct includes a reference to the person being, directly or indirectly, a party to or concerned in the conduct. CHAPTER 14—LEGAL PROCEEDINGS General application of jurisdictional provisions 677. The provisions of this Act providing for the powers of and procedures before the court, the commission or an Industrial Magistrates Court apply in relation to the jurisdiction of the court, the commission or an Industrial Magistrates Court under this or another Act, unless the contrary intention appears. BW Ne Como NN Dw 12162123 s 678 408 s 679 Industrial Relations Evidentiary provisions affecting proceedings 678. In proceedings— (a) the appointment as inspector of a person claiming to be, or stated to be, an inspector, and the authority of an inspector to take proceedings or do any act, must be presumed, until the contrary is proved; and (b) a signature purporting to be of an inspector is taken as the signature it purports to be, until the contrary is proved; and (c) a document purporting to be a copy of a notice or order issued under this Act by an inspector is admissible as evidence of the issue of the notice or order and of the things in it; and (d) a document purporting to be a copy of an organisation's officers register last filed with the registrar, certified by the registrar, is admissible as evidence of the things in it; and (e) adocument purporting to be a copy of an organisation's rules last filed with the registrar, certified by the registrar, is admissible as evidence of the things in it; and (f) the limits of a district or part of the State, or of a road, stated in a complaint or other document made for the proceedings must be presumed, until the contrary is proved; and (g) judicial notice of the existence of industrial action, or of a proposed industrial action, may be taken. Confidential material tendered in evidence 679.(1) Subsection (2) applies if records, tendered to the court or commission, relate to— (a) aperson's trade secrets; or (b) the financial position of a party or witness. (2) The records can not, without the consent of the person, party or witness, be inspected by anyone other than the president, a commissioner or an expert witness. (3) Subsection (2) does not apply to records relating to the financial position of a party or witness who claims that the financial position of a FBEOwo OI DANBRW NY See ee ROBY Bee IAG Nee ome) Nw Ne 25 27 2932 s 679 409 s 679 Industrial Relations business or industry does not permit the payment of wages, or the granting of conditions— (a) claimed in the proceedings in which the records are tendered; or (b) under a proposed industrial instrument or order to which the proceedings relate. (4) If the court or commission directs that information relating to a person's trade secrets or financial position be given in evidence, the evidence must be taken in private, if the person asks. (5) The court, commission or registrar may direct— (a) a report, or part of a report, of proceedings in an industrial cause not be published; or (b) evidence given, records tendered or things exhibited in proceedings for an industrial cause be withheld from release or search. (6) The direction may prohibit the publication, release or search absolutely, or except on conditions ordered by the court, commission or registrar. (7) The direction must be complied with by all persons to whom it is directed. Maximum penalty—16 penalty units. (8) The direction may be given if the court, commission or registrar considers— (a) disclosure of the matter would not be in the public interest; or (b) persons, other than parties to the cause, do not have a sufficient legitimate interest in being informed of the matter. (9) A person must not give as evidence, or publish, material in contravention of this section or of a direction under this section. Maximum penalty—16 penalty units. (10) In this section— "expert witness", for records, means a person appointed by the court or commission as an expert to examine the records and to report on them. BW Ne eee eu BRwWN KF oO OD AND UN RP Ree NAW Nee S Om NN Ne N we Nw Aw NN Na NN 'io @ WwW WwW re Oo s 680 410 s 680 Industrial Relations Evidentiary value of official records 680.(1) The following are admissible in proceedings as evidence of a decision or action— (a) (b) a copy of the decision, or of a record of other action, of the court or commission, purporting to bear the seal of the court or commission; a copy of, or a document purporting to be an extract from, the industrial gazette purporting to contain notice of a decision or other action of the court or commission. (2) In proceedings— (a) (b) a copy of, or a document purporting to be an extract from, the industrial gazette purporting to contain notice of— (i) a declaration of a general ruling published under section 287;1!83 or (11) an amendment of an award or certified agreement; is admissible as evidence of the making or approval of the declaration or amendment and, for the period for which the declaration or amendment remains in force, is evidence of the matters in the notice; and a copy of a certified agreement, certified as a true copy by the registrar, is admissible as evidence of — (i) the agreement; and (11) its execution as shown in the copy; and (111) its certification by the commission; and a copy of a QWA, certified as a true copy by the registrar, is admissible as evidence of — (i) the agreement; and (11) its execution as shown in the copy; and (111) its approval by the commission; and 183 Section 287 (General rulings) CoN AWR WN Y/Y e Oo ee NR eile' Rw Nn eee Om ND NN re Oo Nw NN N BR WwW WN Nv Nn Ny NY ON co oN s 681 411 s 682 Industrial Relations (d) (e) (f) a copy of a permit issued by the commission or the registrar, certified as a true copy by the registrar, is admissible as evidence of the permit; and a certificate issued by the registrar about an organisation's registration is evidence of the matters in the certificate; and a certificate issued by the registrar that a stated person was, at a stated time— (i) an authorised industrial officer or another stated officer of a stated organisation; or (11) amember of a stated organisation; is evidence of the matters. Proof of certain facts by statement 681. In proceedings, a statement in a complaint or other process by which the proceedings are started that— (a) (b) (c) a calling was, at or about a stated time, transferred from | person to another; or a stated person is or is not, or was or was not, at a stated time, an officer or member of an organisation; or a stated person is liable to pay, but has not paid, contribution to the approved superannuation fund; is evidence of the matters stated. Evidentiary value of certificate of trustee of superannuation fund 682.(1) In proceedings, a trustee's certificate stating, for a period of relevant service of an eligible employee concerned in the proceedings— (a) (b) an amount was paid as contribution to a complying superannuation fund of which the trustee is a trustee; or an amount worked out on the rate of return that stated contributions would have attracted to the fund; is evidence of the matters stated. CO IND Wh wnw 11 14 16 18 20 24 26 28 s 683 412 s 683 Industrial Relations (2) In this section— "trustee's certificate" means a certificate given, or purporting to have been given, by a trustee of a complying superannuation fund. Offence proceedings generally 683.(1) Proceedings for an offence under this Act are to be heard and decided by the court or a magistrate, within the limits of the court's or magistrate's jurisdiction. (2) Proceedings before a magistrate are to be heard and decided summarily under the Justices Act 1886, but the Industrial Magistrates Court where the proceedings are taken is to be constituted by a magistrate sitting alone. (3) If the parties to proceedings commenced, or to be commenced, before a magistrate agree, by notice signed by them or their representatives, that the proceedings should be continued or taken before a magistrate at a particular place in the State (other than the place where the proceedings should be heard and decided under the Justices Act 1886)— (a) the magistrate at the particular place is authorised to hear and decide the proceedings; and (b) jurisdiction is conferred on each magistrate accordingly. (4) If the proceedings have commenced before the agreement is made, the magistrate, if satisfied the agreement exists, must— (a) adjourn the proceedings to the magistrate at the agreed place; and (b) send the record of the proceedings taken before the magistrate to the clerk of the Magistrates Court at the agreed place. (5) For the adjourned proceedings, evidence heard or produced in the proceedings before it was adjourned, is taken to have been heard or produced before the magistrate to whom the proceedings were adjourned, unless the parties otherwise agree. (6) Subject to subsection (7), proceedings for an offence under this Act must be commenced— (a) within 1 year after the offence was committed; or (b) within 6 months after the offence comes to the complainant's w Bee ee Be DAnNRDODN —~ SOOO ADDN ZA Lion' on e \o NN re Oo N N N RBS NwponNN ON AWN wn ow Ww WwW NO s 684 413 s 685 Industrial Relations knowledge, but within 18 months after the offence was committed. (7) Proceedings for an offence under section 406 or 666184 must be commenced within 6 months after the offence comes to the complainant's knowledge, but within 6 years after the offence was committed. Organisations may start proceedings 684. Without limiting the authority of the State or a person to take proceedings, an organisation, in its registered name, may commence proceedings for— (a) contraventions of industrial instruments or permits; or (b) an offence under this Act; or (c) recovery of an amount payable to an employee. Recovering amounts from organisations 685.(1) This section applies for the recovery of— (a) apenalty imposed on an organisation under this Act; or (b) an amount ordered to be paid by an organisation under this Act. (2) Process may be issued and executed against the organisation's property, whether the property is vested in trustees or is otherwise held for the organisation, as if the organisation, as a corporation, were the absolute owner of the property. (3) In this section— "property" of an organisation means property that the organisation has— (a) legal title to; or (b) a beneficial interest in, to the extent of the interest. 184 Section 406 (Contributing occupational superannuation) or 666 (Non-payment of wages) ABW Ne Corn a 111416 1820 2224 s 686 414 s 687 Industrial Relations CHAPTER 15—EMPLOYEES IN EMPLOYMENT OF STATE Application of Act to State 686.(1) This Act binds the State, other than in relation to— (a) a matter that has been, or is, the subject of an appeal to the public service commissioner under the Public Service Act 1996, part 7;185 or (b) amatter about which another Act excludes— (i) the jurisdiction of the court or commission about the matter; or (11) the application of a decision under this Act about the matter; or (c) a matter about which another Act does not allow for jurisdiction of the court or commission in relation to the matter, because the other Act prescribes a process or procedure by which to pursue the matter; or (d) adetermination or directive under the Health Services Act 1991. (2) Subsection (1)(c) and this subsection expire on | July 2001. (3) Subsection (1)(d) and this subsection expire on | July 2000. Conflict between industrial instruments etc. and statutory decision 687.(1) This section applies if there is an inconsistency between— (a) any of the following— (i) a directive of the public service commissioner under the Public Service Act 1996, section 34(2) that is the subject of a regulation under section 117(2)!86 of that Act; 185 Public Service Act 1996, part 7 (Appeals) 186 Public Service Act 1996, section 117 (Inconsistency between directives and industrial agreements) 2124 s 688 415 s 688 Industrial Relations (11) 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 Protection of public property and officers 13 688.(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 Ambit of reference to State 689.(1) This Act binds an instrumentality or body that is not a department or part of a department, but that is taken by an Act, or otherwise under law— (a) to be, or to represent, the State; or (b) to have the rights, privileges or immunities of the State; as it binds an employer, other than the State. (2) A reference in section 686 or 688 to the State does not include a reference to an instrumentality or body mentioned in subsection (1). (3) In this section— "department or part of a department" includes a public service office or part of a public service office. Representation of public sector units 690.(1) A public sector unit, or a person in a public sector unit, who is concerned as an employer in an industrial cause must be represented in an industrial tribunal by— (a) the unit's chief executive or an officer or employee of the unit authorised by the chief executive; or (b) if allowed under this Act—a lawyer or agent. (2) In this section— "industrial tribunal" means the court, the commission or an Industrial Magistrates Court. Industrial cause affecting diverse employees 691.(1) Subsection (2) applies if the Minister decides an industrial cause is one that affects, or is likely to affect, employees in more than | public sector unit. (2) The chief executive of the department is taken to be— (a) the employer of all employees who are, or are likely to be, affected; and CO XQ DAWN BWN Le e Oo aon Nw 1518 20 22 26 29 s 692 417 s 692 Industrial Relations (b) a party to the cause and to proceedings in the court, the commission or an Industrial Magistrates Court in the cause; instead of all other persons who, apart from this subsection, would be employers of the employees or any of them. (3) An agreement made by the chief executive as employer or order made in proceedings to which the chief executive is a party binds all persons, and their employees, to whom the agreement or order purports to apply. CHAPTER 16—INDUSTRIAL RELATIONS ADVISORY COMMITTEE Committee established 692.(1) The industrial relations advisory committee (the "committee"') is established. (2) The committee consists of — (a) the chief executive, who is the chairperson; and (b) 2 persons representing employee organisations, nominated by the organisations; and (c) 2 persons representing employer organisations, nominated by the organisations; and (d) 2 persons who have knowledge of, or experience in, industrial relations; and (e) 1 person representing the Anti-Discrimination Commission. (3) The Minister must appoint the members mentioned in subsection (2)(b) to (d). (4) The Minister must appoint an appointed member as the deputy chairperson. CIA Bw Ne 13 15 17 19 21 24 26 s 693 418 s 694 Industrial Relations Functions of committee 693.(1) The committee's functions are— (a) (b) (c) (d) (e) to investigate, and report to the Minister on, a matter about industrial relations— (i) referred to it by the Minister; or (11) considered by the committee to be appropriate to be brought to the Minister's attention; and to investigate, and report to the Minister on, a particular industrial matter that has come to its attention; and to investigate, and report to the Minister on, other matters that come within the operation of this Act; and to review this Act and its operation; and to make the recommendations to the Minister it considers appropriate about a matter within the scope of its functions. (2) In performing its functions, the committee— (a) (b) (c) (d) must consult with the president on a matter relating to the exercise or performance of the court's or commission's jurisdiction, functions and powers; and may consult with an organisation or other association of persons, or an individual; and may confer with the Minister about a matter it is investigating; and must consider the attainment of the objects of this Act. CHAPTER 17—GENERAL Employees working in and outside State 694.(1) This section applies if an employer— (a) has a workplace, or is present, in Queensland; and Bw N Be ew Nb Fo ©em AD ww eile' Rw Nn RP Re ona Ne cow Nw Ne N we 26 s 695 419 s 696 Industrial Relations (b) engages in Queensland an employee whose employment is, with the employer's consent, performed partly in Queensland and partly in another State. (2) An industrial instrument that binds the employer and employee for the employment performed in Queensland also binds them for the employment performed in the other State. Student's work permit 695.(1) A student who is taking part in a tertiary study course may apply to the registrar to issue a permit to work in a calling for a particular period. (2) The student's application must provide satisfactory proof that the period of work in the calling is necessary to complete the course. (3) The permit must state— (a) the period of work; and (b) the student's wage rate; and (c) any conditions it is subject to. (4) On issuing a permit, the registrar must immediately notify the secretary of an employee organisation in the calling of— (a) the issue of the permit; and (b) the permit's conditions. (5) The permit has effect despite an award or certified agreement. Aged or infirm persons permits 696.(1) An application may be made to the commission for a permit for an aged or infirm person, alleged to be unable to earn the minimum wage provided for by an industrial instrument that applies to a calling, to work in the calling for less than the minimum wage. (2) The application may be made by— (a) the aged or infirm person; or (b) an inspector. (3) The commission may issue the permit, with or without conditions. DAunF WHR 11 1315 17 192325 2729 s 697 420 s 699 Industrial Relations (4) On receiving an application, the commission must immediately notify the secretary of an employee organisation in the calling of — (a) the application; and (b) atime, at least 3 days and not more than 7 days from the date of the notice, when the commission will hear any objection to the issue of the permit. (5) At the notified time, or at a time to which the matter is adjourned, the commission must hear any objections from the organisation's authorised representative. (6) An organisation may apply, at any time under the rules, to the commission to cancel the permit. (7) This section applies, and a permit has effect, despite an award or certified agreement. Copy of award and certified agreement to be displayed 697.11) This section applies to a workplace where an industrial instrument, other than a QWA, has application. (2) The employer must display a copy of the instrument, in a conspicuous place at the workplace where it is easily read by the employees in the workplace. Maximum penalty—20 penalty units. (3) In this section— "workplace" includes a factory, workroom or shop. Incorporating amendments in awards, certified agreements or orders 698. If an award, certified agreement or order under chapter 5, part 5 is amended, the registrar may reprint the award, agreement or order in a form certified as correct by the registrar. Obsolete industrial instrument 699.(1) The registrar, after making inquiry, may notify in the industrial gazette an intention to declare a stated industrial instrument obsolete. rr O oon Dunk W NK ee ion' wn 16 182126 29 s 700 421 s 701 Industrial Relations (2) A person may, within the stated time and in the stated way, file an objection notice with the commission. (3) The commission must hear and decide the objection. (4) If no objection is filed within the stated time, or all objections filed are dismissed, the registrar may notify in the industrial gazette that the instrument is obsolete. (5) The instrument stops having effect on publication of the notice. Certificate of employment on termination 700.(1) An employer, when asked by a person whose employment with the employer has been terminated, must give the person a certificate, signed by the employer, about the particulars prescribed under a regulation. Maximum penalty—20 penalty units. (2) In this section— "terminated" means terminated by the employer or employee. False pretences relating to employment 701.(1) A person must not— (a) pretend someone else has been employed by the person for a period, or in a capacity, other than that for, or in, which the other person was employed; or (b) assert in writing that someone else has been employed by the person for a period, or in a capacity, knowing the assertion to be false; or (c) assert in writing another matter relating to the person's employment of someone else, knowing the assertion to be false in a material particular. Maximum penalty—40 penalty units. (2) A person must not— (a) forge a document that purports to be a discharge from, or a record of, previous employment; or NY DUB W NR 11 1316 18212427 29 s 702 422 s 702 Industrial Relations (b) use a document that purports to be a discharge from, or a record of, previous employment, knowing the document is not genuine or is false; or (c) pretend, or falsely claim, when seeking employment, to be a person named in a genuine document mentioned in paragraph (b) as a person to whom the document was given; or (d) seek to obtain employment by assuming someone else's name, living or dead, with intent to deceive. Maximum penalty—40 penalty units. (3) If, under a relevant industrial instrument in a calling, an employee's wages depends wholly or partly on the employee's age, experience or duration of previous employment, a person must not give information, or make a statement, about the particulars that the person knows is false— (a) when seeking employment in the calling; or (b) while an employee in the calling. Maximum penalty—16 penalty units. (4) A person's liability to be dealt with for an offence under subsection (1) or (2) does not affect the person's liability to be dealt with under the Criminal Code for forgery or false pretences. (5) However, the person must not be dealt with under both this Act and the Criminal Code for the same conduct. Protection from liability 702.(1) An official is not civilly liable for an act done, or omission made, honestly and without negligence under this or another Act mentioned in section 350(4).188 (2) If subsection (1) prevents civil liability attaching to a person, the liability attaches instead to the State. (3) In this section— "official" means— 188 Section 350 (Appointment of inspectors) CNIY DNF WNHE 1113 151821 2427 29 s 703 423 s 703 Industrial Relations (a) the Minister; or (b) the chief executive; or (c) the registrar; or (d) another officer of the court or commission; or (e) an inspector; or (f) a person acting under the direction of an inspector. Payments to financially distressed 703.(1) Subsection (2) applies if a person is— (a) suffering hardship because an employer has failed to pay the person the whole or part of wages; and (b) unlikely to be able to recover by lawful means the whole or a substantial part of the unpaid wages. (2) The Governor in Council may authorise payment of an amount, not more than the person is unlikely to recover, to the person from the unclaimed moneys fund. (3) The payment does not relieve the employer from liability to pay the unpaid wages. (4) If the person later receives remuneration in full or part satisfaction of the employer's liability, the person must immediately pay the department (for payment to the unclaimed moneys fund) an amount equal to the lesser of— (a) the value of the remuneration received, as assessed by the Minister; or (b) the amount of the payment made to the person and not previously repaid by the person under this subsection. (5) The amount payable to the department— (a) is adebt payable to the department; and (b) may be recovered by action in a court of competent jurisdiction. Hn vn ff WwW NY 12 1417 1921 23 25 27 s 704 424 s 707 Industrial Relations (6) In this section— "remuneration" means remuneration, in money or kind. Notices and applications to be written 704. If a person must give a notice or make an application under this Act, the notice or application must be written, unless otherwise provided. Inaccurate descriptions 705. No misnomer, inaccurate description or omission in or from a document given under this Act prevents or limits the operation of this Act in relation to the subject matter of the misnomer, inaccurate description or omission, if the subject matter is sufficiently clear to be understood. Confidentiality of information 706. A person must not disclose information acquired when performing functions or exercising powers under this Act to someone else, unless the disclosure is— (a) made for this Act when performing a function under this Act; or (b) authorised by— (i) the Minister; or (11) a court order, for hearing and deciding proceedings before the court; or (11) a regulation; or (c) required or permitted by another Act. Maximum penalty—16 penalty units. Application of Act generally 707.(1) If a provision of this Act does not apply to a person or a class of person, a decision is inoperative to the extent that it purports to apply to the person or a member of the class about the provision's subject matter. SCO AN a 131619 2126 s 708 425 s 709 Industrial Relations (2) In its application, this Act does not create a right, privilege or benefit for a person for a period of service as an employee if, for the period, a similar right, privilege or benefit was given to or received by the person under a corresponding provision of the repealed Act. Approved forms 708.(1) The president may approve, for this Act, forms for use by or in the court, commission, Industrial Magistrates Court or registry. (2) The chief executive may approve, for this Act, forms for use in circumstances not mentioned in subsection (1). (3) Until 1 July 2001, a form prescribed in the Jndustrial Court (Industrial Organisations) Rules 1990 or the Industrial Court Rules 1997 for use under the rules may continue to be used for the purpose for which it is prescribed and may be amended or repealed in the same way as the rules. (4) Subsection (3) and this subsection expire on 2 July 2001. Regulation-making power 709.(1) The Governor in Council may make regulations under this Act. (2) In particular, but without limiting subsection (1), a regulation may be made— (a) requiring an employer who is a party to a certified agreement or QWA to supply information for statistical purposes; and (b) requiring an employer who is a party to a QWA to supply copies of documents prescribed under the regulation to the employee; and (c) about the required form of QWAs or ancillary documents, including a requirement that the document be in the English language; and (d) about the witnessing of signatures on QWAs or ancillary documents; and (e) about the making and retention by employers of records relating to the employment of persons under QWAs, and the inspection of the records; and BRWNe ao ntniwn 1216 18 20 2226 28 30 s 710 426 s 710 Industrial Relations (f) regulating the conduct of agents who act for parties in industrial causes; and (g) creating an offence under a regulation; and (h) fixing a penalty for an offence under a regulation, including different penalties for successive offences against a regulation, of not more than 20 penalty units. CHAPTER 18—SAVINGS AND REPEALS Savings 710.(1) A person prescribed under any Act to be an employee within the meaning of the repealed Act continues to be an employee within the meaning of this Act. (2) Subsection (3) applies to an award, decision, exemption, judgment, ruling, permit or licence or other act of authority (the "instrument") that was— (a) made, given, done, granted, certified or approved by the court, the commission, a magistrate or the registrar under the repealed Act or the IO Act, and in relation to which there is a corresponding provision under this Act; and (b) in force immediately before the commencement of this Act. (3) The instrument— (a) continues in force as if it had been made, given, done, granted or approved by the court, commission, magistrate or registrar, according to their respective functions and jurisdictions, under the corresponding provision of this Act; and (b) may be amended, revoked or suspended under this Act. (4) Proceedings started before the commencement of this section under a provision of the repealed Act or the IO Act and pending at the date of the repeal may be carried on and prosecuted as if they had been started under the corresponding provision of this Act. Dank W NK 10131618 20 2224 2729 s711 427 s 712 Industrial Relations (5) Proceedings are taken to be part heard after the start of the hearing until the decision in the proceedings is given. Regulation and rules to continue 711.(1) The following instruments under the repealed Act continue in force, and may be amended, as if they had been made under this Act— (a) the Workplace Relations Regulation 1997; (b) the /ndustrial Court (Industrial Organisations) Rules 1990; (c) the Industrial Court Rules 1997. (2) The instruments are to be read with the changes necessary to make them consistent with this Act and to adapt their operation to the provisions of this Act. (3) The Industrial Organisations Regulation 1997 continues in force, and may be amended, as if it had been made under this Act. (4) The Industrial Organisation Regulation 1997 is to be read with— (a) the amendments in schedule 4;!89 and (b) other changes necessary to make the regulation consistent with this Act and to adapt its operation to the provisions of this Act. (5) This section expires on | July 2000. Repeals 712.(1) The following Acts are repealed— (a) the Workplace Relations Act 1997; (b) the /ndustrial Organisations Act 1997. (2) A proclamation commencing this section may fix different days or times for the repeal of different provisions of an Act to be repealed under subsection (1). 189 Schedule 4 (Amendment of model election rules) BR WwW Ne ee ee WN K-§ow eoANXA DAW Se nan & Ree na Co 2022 24 s 713 428 s 713 Industrial Relations (3) One or more further proclamations may be made fixing different days or times for the repeal of different provisions of the Act until the Act is entirely repealed. CHAPTER 19—SAVING AND TRANSITIONAL PROVISIONS FOR INDUSTRIAL RELATIONS ACT 1999 PART 1—EXISTING INDUSTRIAL AGREEMENTS Existing industrial agreement continues 713.(1) An industrial agreement that is in force immediately before the commencement of this section continues to have effect after the commencement. (2) The provisions of the 1990 Act, other than those relating to the making or amendment of an industrial agreement, continue to apply to the industrial agreement, subject to this part. (3) The commission may amend the industrial agreement only before its term expires and in accordance with a written agreement filed by the parties to the industrial agreement in the registry. (4) However, the term of the industrial agreement can not be extended by agreement. (5) If there is no applicable award, the commission, of its own initiative or on an application by a party to the industrial agreement, may decide that the industrial agreement has effect as an award. (6) The industrial agreement may be terminated, before its term expires, by written agreement filed by the parties to the industrial agreement in the registry. 11 131619 2124 s 714 429 s 716 Industrial Relations Industrial agreement displaced by QWA 714. If a QWA comes into operation in relation to an employee who is bound by an industrial agreement, the industrial agreement stops having effect in relation to the employee. PART 2—EXISTING CERTIFIED AGREEMENTS New termination provisions for existing certified agreements 715.(1) A certified agreement that is in force immediately before the commencement of this section continues to have effect after the commencement. (2) Section 172190 applies to a certified agreement entered into before the commencement of this section if, whether before or after the commencement— (a) the period of operation stated in the agreement has ended; or (b) if it has been extended or further extended under the repealed Act—the period as extended or further extended has ended. EFAs that prevail over certified agreements 716.(1) This section applies if— (a) an EFA is continued in force by part 3; and (b) any part of the period of operation stated in the agreement (the "post-commencement period"), or that period as extended or further extended, happens after the commencement of this section; and (c) the EFA is, during the post-commencement period, to any extent inconsistent with a certified agreement, whether made before or after the commencement of this section; and 190 Section 172 (Terminating a certified agreement on or before its nominal expiry date) BRwWN 172022 24 s717 430 s 719 Industrial Relations (d) the certified agreement was certified after implementation of the EFA was approved. (2) The EFA prevails over the certified agreement, to the extent of the inconsistency, during the post-commencement period. Certified agreements that prevail over EFAs 717.(1) This section applies if— (a) an EFA is continued in force by part 3; and (b) a certified agreement, whether made before or after the commencement of this section, is to any extent inconsistent with the EFA; and (c) section 716 does not apply to the inconsistency. (2) The certified agreement prevails over the EFA, to the extent of the inconsistency. PART 3—EXISTING EFAS Existing EFA continues 718.(1) An EFA that is in force immediately before the commencement of this section continues to have effect after the commencement. (2) The provisions of the 1990 Act, other than those relating to the making of an EFA, continue to apply to the EFA, subject to this part. (3) However, the period of operation of the EFA can not be extended after the commencement. EFA displaced by QWA and determination 719.(1) If a QWA comes into operation in relation to an employee who is bound by the EFA, the EFA stops having effect in relation to the employee. Rw Ne 17 19 21 24 s 720 431 s721 Industrial Relations (2) A determination under section 149191 prevails over an EFA to the extent of any inconsistency. PART 4—UNLAWFUL DISMISSALS Dismissals before commencement of this section 720. The repealed Act, chapter 5, part 2, continues to apply to a dismissal within the meaning of that part that happened before the commencement of this section. PART 5—REPRESENTATION RIGHTS OF EMPLOYEE ORGANISATIONS Applications under the repealed Act, s 293 721. If an application has been made under the repealed Act, section 293192— (a) the hearing of the application may be started and continued as if this Act had not been enacted; and (b) that section continues to apply to the hearing; and (c) an order made as a result of the hearing has effect as if it had been made under that section before its repeal. 191 Section 149 (Arbitration if conciliation unsuccessful) 192 Workplace Relations Act 1997, section 293 (Orders about representation rights of employee organisations) NAN 12 14 17 s 722 432 s 724 Industrial Relations PART 6—REFERENCES AND APPOINTMENTS References to repealed Act or IO Act 722. In an Act or document, a reference to the repealed Act or the IO Act may, if the context permits, be taken to be a reference to this Act. Appointments continue 723.(1) A person who immediately before the commencement of this section held an appointment as a commissioner under the repealed Act continues to hold the appointment, subject to this Act, until— (a) the end of the term of appointment; or (b) reappointed under this Act. (2) A person who immediately before the commencement of this section held an appointment as— (a) the registrar; or (b) the chief inspector; or (c) an inspector; under the repealed Act continues to hold the appointment, subject to this Act. (3) A person who immediately before the commencement of this section held an appointment under the IO Act continues to hold the appointment until the end of the term of appointment, if any, subject to this Act. PART 7—VETE ORDERS AND DETERMINATIONS Proceedings commenced under the Vocational Education, Training and Employment Act 1991 724. Proceedings started under the Vocational Education, Training and Employment Act 1991, section 98(4), 100(6), 103(2) or 120(3)(b), before Co AAD WN 1315 17 1923 25 s 725 433 s 725 Industrial Relations the commencement of this section, and pending at the commencement, may be carried on and prosecuted as if it had been started the corresponding provision of this Act. Orders and determinations under the Vocational Education, Training and Employment Act 1991 725.1) An order made by the commission under the Vocational Education, Training and Employment Act 1991, section 83, 86(2) or 87(5),193 that is in force immediately before the commencement of this section, continues to have effect after the commencement as if it had been made by the commission under section 137.194 (2) A determination by the State Training Council under the Vocational Education, Training and Employment Act 1991, section 86(5) or section 87(2)195, that is in force immediately before the commencement of this section, continues to have effect after the commencement as if it had been made by the commission as an order under section 137.196 (3) An order made by the commission under the Vocational Education, Training and Employment Act 1991, section 89(1)!97, that is in force immediately before the commencement of this section, continues to have effect after the commencement as if it had been made by the commission under section 138.198 193 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) wn ona np 12141719 s 726 434 s 726 Industrial Relations PART 8—ORGANISATIONS Organisations with dual corporate status 726.(1) This section applies if, on the commencement of this section, an organisation was incorporated under a former incorporation provision and it was also— (a) acorporation under the Corporations Law, section 57A;199 or (b) an incorporated association under the Associations Incorporation Act 1981; or (c) a body incorporated under a law of the State. (2) Two years after the commencement, the organisation is taken to be no longer incorporated under the former incorporation provision for this Act. (3) However, subsection (2) does not affect any continued incorporation of the organisation under a law mentioned in subsection (1)(a) to (c). (4) The registrar may, on the application of the organisation made before the end of the 2 years, cancel its incorporation under the former incorporation provision. (5) The commission may, on the referral of the registrar, make an order it considers appropriate to resolve any difficulty that may arise from the organisation no longer being incorporated under the former incorporation provision. (6) In this section— "former incorporation provision" means a provision as follows— (a) the Industrial Conciliation and Arbitration Act 1932, section 41(1); (b) the Industrial Conciliation and Arbitration Act 1961, section 69(1); 199 Section 57A (Meaning of "corporation") of the Corporations Law ro ODO OMNI DBD UNKW LO il oon wn eRe DAuns Nee SOonMN NN Ne NN Rw NN Hun s 727 435 s 729 Industrial Relations (c) the 1990 Act, section 334; (d) the IO Act, section 18.200 Continued registration of organisations 727.1) An industrial organisation registered, or taken to be registered, under the IO Act immediately before this section commences is taken to be registered as an organisation under this Act at the commencement. (2) The name of an organisation under the IO Act is unchanged under this Act. (3) The organisation is and continues to be the same body corporate under this Act without any break in, or change to, its corporate identity. Applications for exemption from membership of an organisation 728. The procedure under the IO Act, section 90(3) to (5) continues to apply to the hearing of an application for exemption from membership of an organisation until a regulation is made under section 112.201 Amalgamations 729.(1) This section applies until a regulation is made under chapter 12, part 15 that is expressed to replace the effect of the IO Act, sections 96 to 98, 100 to 104, 106 to 115, 117 to 141, and 144 to 146 ("continued provisions"). (2) Despite the repeal of the IO Act, the continued provisions continue to apply to an amalgamation or proposed amalgamation, with the changes 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) SO ON ANB WwW e 131719 21 s 730 436 s 732 Industrial Relations necessary to make them consistent with this Act and to adapt their operation to the provisions of this Act. Withdrawals from amalgamation 730.(1) This section applies until a regulation is made under chapter 12, part 15 that is expressed to replace the effect of the IO Act, sections 160 to 174, 177 and 178 ("continued provisions"). (2) Despite the repeal of the IO Act, the continued provisions continue to apply to a withdrawal or proposed withdrawal, with the changes necessary to make them consistent with this Act and to adapt their operation to the provisions of this Act. Election and ballot expenses 731.(1) The IO Act, section 55 continues to apply to an organisation for an election for the organisation that, immediately before this section commences, was finished or was being conducted but had not finished. (2) If, immediately before the commencement of this section, the IO Act, section 74 applied to an election or a step in an election, that section continues to apply to the election or step if the election or step was finished or was being conducted, but had not finished. (3) The IO Act, section 116 continues to apply to an organisation for a ballot for a proposed amalgamation if, immediately before the commencement of this section, the ballot was finished or was being conducted, but had not finished. (4) The IO Act, section 186 continues to apply to a person who applied for a ballot for a proposed withdrawal from amalgamation if, immediately before the commencement of this section, the ballot was finished or was being conducted, but had not finished. (5) Subsections (1) to (4) have effect despite the repeal of the IO Act. Political objects funds 732.(1) This section applies if, immediately before section 551 commences, an organisation had a political objects fund under the IO Act, Ne SC OMN DANS WwW e 131618 2022 24 26 30 s 733 437 s 735 Industrial Relations part 12.202 (2) The IO Act, section 227(1) to (3) ("section 227") continues to apply to any contribution to the fund for 6 months after the commencement. (3) A direction to the organisation under section 227 expires at the end of the 6 months. (4) At the end of the 6 months the organisation must close the fund and pay out any amount in the fund under its rules. (5) Subsection (2) has effect despite the repeal of the IO Act. CHAPTER 20—AMENDMENT OF PUBLIC SERVICE ACT 1996 Act amended 733. This chapter amends the Public Service Act 1996. Amendment of s 22 (Application of Act to certain public sector units etc.) 734.(1) Section 22(4), 'remuneration'— omit, insert— 'overall employment conditions'. (2) Section 22(6)— omit. Amendment of s 33 (Functions of commissioner) 735.(1) Section 33(b) and (e), 'employment'— 202 Section 551 (Definitions for pt 12) and Industrial Organisations Act 1997, part 12 (Accounts and Audit) ao nn ns Wn 12 14 161821 s 735 438 s 735 Industrial Relations omit, insert— '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 (11) 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 (0)— 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 Amendment of s 34 (Rulings of industrial relations Minister and commissioner) 736.(1) Section 34(1) to (3)— omit, insert— *34.(1) The commissioner may issue directives or guidelines only about— (a) a matter relating to a function of the commissioner under section 33; or (b) the overall employment conditions for persons employed as— (i) senior executives or senior officers; or (11) public service officers on contract whose remuneration is equal to, or higher than, the remuneration payable to a senior officer; or (c) amatter as required elsewhere in this Act. '(2) The industrial relations Minister may issue directives and guidelines only about the remuneration and conditions of employment of public service employees other than those mentioned in subsection (1)(b).'. (2) Section 34(4) to (6)— renumber as section 34(3) to (5). Amendment of s 69 (Basis of employment—tenure or contract) 737.(1) Section 69(a), 'under a directive of the commissioner,' — omit, insert— "it is decided that'. (2) Section 69— insert— '(2) For subsection (1)(a), the decision is to be made by— (a) for a person employed as a public service officer on contract whose remuneration is equal to, or higher than, the remuneration payable to a senior officer—the commissioner by directive; or Co ANY DWN FW NH 13 1619 21232528 s 738 440 s741 Industrial Relations (b) for any other officer—the chief executive of the department responsible for administering the Industrial Relations Act 1999 by gazette notice.'. Amendment of s 70 (Basis of employment for contract employment) 738.(1) Section 70(6)— omit, insert— '(6) The person's overall employment conditions under the contract must not, on balance, be less than those that the person would be entitled to if the person were appointed on tenure.'. (2) Section 70(7), 'Industrial Commission'— omit, insert— 'Industrial Relations Commission'. (3) Section 70(8)— omit. Amendment of s 81 (Action because of surplus) 739. Section 81(2), 'of the commissioner'— omit. Amendment of s 85 (Mental or physical incapacity) 740. Section 85(1)(a), 'without approved leave'-— omit. Amendment of s 114 (Application of Act to general and temporary employees) 741. Section 114, 'of the commissioner'— omit. wn CoN DAD nA fF 113161922 24 s 742 441 s 744 Industrial Relations Replacement of s 117 (Inconsistency between directives and industrial agreements) 742. Section 117— omit, insert— 'Relationship between directives and awards etc. '117.(1) This section applies if a directive deals with a matter that is dealt with, wholly or partly, under an industrial instrument. '(2) A directive of the commissioner prevails over an industrial instrument, unless a regulation provides otherwise. '(3) An industrial instrument prevails over a directive of the industrial relations Minister, unless the directive provides otherwise. '(4) In this section— "directive" includes a decision made in the exercise of a discretion given in a directive. "industrial instrument" means an award, industrial agreement or a decision of the Industrial Relations Commission... Amendment of s 118 (Regulation-making power) 743. Section 118(3), 'a reserved matter'— omit, insert— 'remuneration and conditions of employment'. Amendment of s 136 (Existing regulations) 744. Section 136(1), after 'this Act"— insert— 'until the commencement of the amendment to section 34(2) under the Industrial Relations Act 1999'. Fo UDO ND WH FF WY NH Se See N aon' Bw eR num 1820 2225 s 745 442 s 747 Industrial Relations Amendment of sch 1 (Public service offices and their heads) 745.(1) Schedule 1, items 6 to 12— renumber as items 7 to 13. (2) Schedule 1— insert— '6 Industrial Registry Industrial registrar'. Amendment of sch 3 (Dictionary) 746. Schedule 3— insert— ' "overall employment conditions" means remuneration and conditions of employment.'. CHAPTER 21—CONSEQUENTIAL AMENDMENTS Consequential amendments 747. Schedule 3 amends the Acts it mentions. nA FB WwW NY CoO ON a 12 14Industrial Relations AF YS 10. 11. SCHEDULE 1 INDUSTRIAL MATTERS section 7(3) Wages, allowances or remuneration of persons employed, or to be employed, during ordinary working hours, on overtime, on special work or on public holidays. Pay equity. Whether piecework will be allowed. Whether employees are to be given particular leave on full pay. Whether and on what conditions employees may board and lodge with their employers, including where it is necessary for employers to provide the board and lodging at a reasonable standard, where it would be impractical not to. Whether monetary allowances will be paid by employers to employees for standing back or waiting time caused— (a) by the conditions of the employer's calling; or (b) by the intermittency of industrial operations; or (c) otherwise. The length of notice to be given by an employer or employee to the other before terminating employment, and wages to be paid or deducted instead of notice. Occupational superannuation. The hours of work, the time to be worked to entitle employees to a particular wage, allowance, remuneration or price, or what time will be taken to be overtime. Claims to restrict work before or after particular hours. Providing for shorter hours, higher wages, or other conditions for persons employed under abnormal conditions or in abnormal aon ant 1113 15 17202428 Industrial Relations 12. 13. 14. 15. 16. 17. 18. 19. 20. SCHEDULE 1 (continued) workplaces, and deciding what are abnormal conditions or workplaces. The age, qualification or status of employees, or the mode and conditions of employment or non-employment, including whether a person should be disqualified for employment. Employment of young employees or of a person or class of person, or the disqualification of a person for employment because of age or impairment. The number or proportion of aged, impaired or infirm persons or other employees that may be employed by an employer, or the lowest prices or rates payable to them. A claim to dismiss or to refuse to employ a particular person or class of person, or whether a particular person or class of person, ought to be continued or reinstated in the employment of a particular employer, considering the public interest, despite common law rights of employers or employees. The right to dismiss, or to refuse to employ, reinstate or re-employ a particular person, or class of person, in a particular calling. Custom or usage about employment conditions, either generally or in a particular calling or locality. The interpretation or enforcement of an industrial instrument or a permit, unless this Act otherwise prescribes. The subject matter of an industrial dispute, and a matter that has caused, or the court or commission considers is likely to cause, disagreement or friction between employers and employees. What is fair and just, considering the interests of the persons immediately concerned and the community, according to the standard of the average good employer and the average competent and honest employee in all matters relating to the relations of employers and employees, whether or not the relationship of employer and employee exists or existed— (a) at or before the making of a relevant application to the court or commission; or Industrial Relations 21. 22. 23. 24. 25. 26. 27. SCHEDULE 1 (continued) (b) at the making or enforcement of a decision of the court or commission. The regulation of relations between employer and employee, or between employees, and to that end the imposition of conditions on— (a) the conduct of a calling; and (b) the provision of benefits to persons engaged in a calling. A demarcation dispute. The authorised payment by an employer of an employee's membership fees of an organisation of employees. The surveillance of employees in the workplace. Discrimination in employment, including in remuneration or other employment conditions. Claims to have protective clothing or appliances, hot or cold water, or sanitary or bathing accommodation provided for the use of employees. Fixing standards of normal temperatures or atmospheric purity in workplaces, above or below ground. Ceo YN DN BW NK 14 16 Industrial Relations SCHEDULE 2 APPOINTMENTS AND PROCEDURES section 8 PART 1—PRESIDENT, VICE PRESIDENT, COMMISSIONER ADMINISTRATOR AND COMMISSIONERS Remuneration 1.(1) The person first appointed as the president after the commencement of section 243203 is to receive the salary and allowances that are payable to a Supreme Court judge immediately before the commencement. (2) The person first appointed as the vice president after the commencement of section 258204 is to receive the salary and allowances that were payable to the chief commissioner immediately before the commencement. (3) After the commencement of this section, the salary and allowances payable to the president, vice president, commissioner administrator and commissioners are to be fixed under the Judges (Salaries and Allowances) Act 1967. (4) A person acting as the president, vice president, commissioner administrator or commissioner is entitled to the salary and allowances payable to the president, vice president, commissioner administrator or commissioner. (5) The salaries and allowances are payable out of the consolidated fund, which is appropriated for the purpose. 203 Section 243 (President of the court) 204 Section 258 (Vice president of the commission) 1214 1618 2022 24 Industrial Relations SCHEDULE 2 (continued) Benefits—Judges (Pensions and Long Leave) Act 2.1) The Judges (Pensions and Long Leave) Act 1957, other than sections 2A and 15,205 (the "pensions Act") applies with necessary changes to a member and a member's spouse or child in the way it applies to a judge and a judge's spouse or child. (2) In the pensions Act, a reference to a judge may, if the context permits, be taken to be a reference to a member. (3) In working out a person's length of service as a member for subsection (1), the following periods must be taken into account— (a) a period when the person has served as a member, whether under— (i) a first appointment as a member or a renewal of the appointment; or (11) a subsequent appointment; (b) a period when the person has served as an acting member. (4) This section does not apply if section 3 applies. Benefits—Superannuation (State Public Sector) Act 1990 3.(1) Section 2 does not confer an entitlement on a member or a member's spouse or child, if either of the following apply— (a) for a member first appointed to the commission before the commencement of this section—immediately before the commencement, the member was not a member to whom the Judges (Pensions and Long Leave) Act 1957 applied; (b) for a member first appointed to the commission after the commencement of this section— (i) the member is a member of the scheme and properly elects to continue as a member of the scheme; or 205 Judges (Pensions and Long Leave) Act 1957, sections 2A (Length of service) and 15 (Leave of absence of Judges) BPO COM NID UNRWN He See ee KR Wh re Hn wn 19 2123 25 27 Industrial Relations SCHEDULE 2 (continued) (11) the member is not a member of the scheme and properly elects to be a member of the scheme. (2) A member making an election under subsection (1)(b) must do so, by signed notice in duplicate, within 3 months after being first appointed as a member. (3) A copy of the election must be given to— (a) the board under the Superannuation (State Public Sector) Act 1990; and (b) the chief executive of the department in which this Act is administered. (4) In this section— "scheme" means the scheme under the Superannuation (State Public Sector) Act 1990. Leave of absence 4.11) The Judges (Pensions and Long Leave) Act 1957, section 15206 applies with necessary changes to a member in the way it applies to a judge. (2) In section 15 of that Act, a reference to a judge may, if the context permits, be taken to be a reference to a member. (3) In working out a person's length of service as a member for subsection (1), the following periods must be taken into account— (a) a period when the person has served as a member, whether under— (i) a first appointment as a member or a renewal of the appointment; or (11) a subsequent appointment; (b) a period when the person has served as an acting member. 206 Judges (Pensions and Long Leave) Act 1957, section 15 (Leave of absence of Judges) ow! eAY HD NnAPW Ne eS an ion' wn 16 18 20 22 24 26 Industrial Relations SCHEDULE 2 (continued) PART 2—REGISTRAR Preservation of registrar's rights if a public service officer 5.(1) This section applies if the person appointed as the registrar was, immediately before the appointment, a public service officer. (2) The person keeps the rights the person has accrued because of employment as a public service officer, or that would accrue in the future to the person, as if service as registrar were a continuation of service as a public service officer. (3) If the person's term of appointment as registrar ends or the person resigns— (a) the person has the right to be employed as a public service officer— (i) inthe department that is the nearest practical equivalent to the department in which the person was employed as a public service officer immediately before the person last stopped being a public service officer; and (11) at the classification level at which the person was employed as a public service officer immediately before the person last stopped being a public service officer; and (111) on the remuneration payable to a public service officer on the classification level mentioned in subparagraph (i1); and (iv) for duties appropriate to the classification level mentioned in subparagraph (ii); and (b) the person's service as registrar is taken to be service as a public service officer for working out the person's rights as a public service officer. (4) If the person, immediately before the appointment, was a member of the scheme under the Superannuation (State Public Sector) Act 1990, the person continues to be eligible to be, and to be, a member of the scheme. Industrial Relations SCHEDULE 2 (continued) Leave of absence of registrar 6. The Minister may grant leave of absence to the registrar on the terms the Minister considers appropriate. Resignation of registrar 7. The registrar may resign by signed notice given to the Minister. PART 3—INSPECTORS Appointment conditions 8.(1) An inspector holds office on the conditions stated in the instrument of appointment. (2) An inspector stops holding office— (a) ifthe appointment provides for a term of appointment—at the end of the term; and (b) ifthe appointment conditions provide—on ceasing to hold another office stated in the appointment conditions (the "main office"). (3) An inspector may resign by signed notice of resignation given to the chief executive. (4) However, an inspector may not resign from the office of inspector (the "secondary office") if a condition of the inspector's employment to the main office requires the inspector to hold the secondary office. Limitation on powers 9.(1) In exercising a power, an inspector is subject to the chief inspector's directions. (2) An inspector's powers may be limited— (a) under a condition of appointment; or 12 14 16 1822 24 Industrial Relations SCHEDULE 2 (continued) (b) by notice given by the chief executive to the inspector; or (c) under a regulation. Identity cards 10.(1) The chief executive must give each inspector an identity card. (2) The identity card must— (a) contain a recent photo of the inspector; and (b) be signed by the inspector; and (c) identify the person as an inspector for this Act; and (d) include an expiry date for the card (3) A person who stops being an inspector must return the person's identity card to the chief executive as soon as possible, but within 21 days, after the person stops being an inspector, unless the person has a reasonable excuse. Maximum penalty—10 penalty units. (4) This section does not prevent the giving of a single identity card to a person for this and other Acts or for other purposes. PART 4—PRESIDENT'S ADVISORY COMMITTEE Definitions for pt 4 11. In this part— "appointed member" means a member of the president's advisory committee appointed by the Minister. "member" means a member of the president's advisory committee. oN DAD wn Bw 1113 15 19 21 Industrial Relations SCHEDULE 2 (continued) Term of office 12.(1) The appointment of a member is for the term, not longer than 3 years, stated in the notice of the member's appointment. (2) An appointed member may resign by signed notice given to the Minister. Remuneration of appointed members 13. An appointed member is entitled to the allowances and reasonable expenses approved by the Minister. Meetings of president's advisory committee 14. Meetings of the president's advisory committee are to be— (a) called by the president; and (b) held when the president decides, but at least 3 times a year. PART 5—INDUSTRIAL RELATIONS ADVISORY COMMITTEE Definitions for pt 5 15. In this part— "appointed member" means a member of the industrial relations advisory committee appointed by the Minister. "member" means a member of the industrial relations advisory committee. Term of office 16.(1) The appointment of a member is for the term, not longer than 3 years, stated in the notice of the member's appointment. Ak WH 1114 16 18 22 Industrial Relations SCHEDULE 2 (continued) (2) An appointed member may resign by signed notice given to the Minister. Deputies of members 17.(1) This section applies if a member, other than the chairperson, can not perform the functions of the appointment because of absence, illness, or another cause. (2) The Minister may appoint a person to act as the deputy of the member during the member's incapacity. (3) While a deputy of a member acts, the deputy must perform the functions, may exercise the powers, and has the entitlements, of the member. Remuneration of appointed members 18. An appointed member is entitled to the allowances and reasonable expenses approved by the Minister. Conduct of committee meetings 19.(1) Meetings of the committee are to be— (a) called by the chairperson; and (b) held when the chairperson decides, but at least 3 times a year. (2) The chairperson must preside at all meetings at which the chairperson is present, and in the chairperson's absence, the deputy chairperson must preside. (3) A quorum of the committee consists of 6 members of whom the chairperson or deputy chairperson must be 1. (4) Business must not be conducted at a meeting unless a quorum is present. (5) Business before a meeting at which a quorum is present must be decided by majority vote of the members present and entitled to vote. KR Ww EB owU ON AW ee 14 1618 2023 25 27 Industrial Relations SCHEDULE 2 (continued) (6) A member present at a meeting and entitled to vote who refrains from voting on an item of business before the committee, other than with the chairperson's leave on the ground of conflict of interest, is taken to have voted in the negative. (7) If there is an equality of votes on an item of business, the presiding member has a second or casting vote. (8) Minutes of each meeting are to be recorded in writing, and the original only of the minutes must be produced at, or for, a meeting. (9) Records of the committee are in the chairperson's custody. Oo won nn BWwWNR Industrial Relations SCHEDULE 3 CONSEQUENTIAL AMENDMENTS section 747 ACTS INTERPRETATION ACT 1954 1. Section 36, definitions "industrial commissioner", "Industrial Court", "industrial magistrate"? and "Industrial Relations Commission"— omit, insert— ' "industrial commissioner" see the Industrial Relations Act 1999. "industrial court" see the Jndustrial Relations Act 1999. "industrial magistrate" see the Industrial Relations Act 1999. "Industrial Magistrates Court" see the /ndustrial Relations Act 1999.'. "industrial relations commission" see the /ndustrial Relations Act 1999.'. AMBULANCE SERVICE ACT 1991 1. Section 13(2), 'Workplace Relations Act 19977— omit, insert— 'Industrial Relations Act 1999'. Co A ADWN 1113 17 Industrial Relations SCHEDULE 3 (continued) ANTI-DISCRIMINATION ACT 1991 1. Section 4, definition "industrial agreement", 'section 2.1 of the Industrial Relations Act 1990'— omit, insert— 'the Industrial Relations Act 1999'. 2. Section 4, definition "industrial relief", 'section 11.11 of the Industrial Relations Act 1990'— omit, insert— 'the Industrial Relations Act 1999, chapter 6'. 3. Section 14(2), 'section 13.107 or 13.108 of the Industrial Relations Act 1990' — omit, insert— 'the Industrial Relations Act 1999, section 99 or 100'. 4. Section 15(2), 'section 13.107 or 13.108 of the Industrial Relations Act 1990' — omit, insert— 'the Industrial Relations Act 1999, section 99 or 100'. 5. Section 19(2), 'division 4 or 6 of part 13 of the Industrial Relations Act 1990' — omit, insert— 'the Industrial Relations Act 1999, part 5 or 6'. nan & Wh Co DA AND 1215 17 19 21 Industrial Relations SCHEDULE 3 (continued) 6. Section 20(2), 'division 4 or 6 of part 13 of the Industrial Relations Act 1990 — omit, insert— 'the Industrial Relations Act 1999, part 5 or 6'. 7. Section 32(3), 'section 291(2)(b)(iv) of the Industrial Relations Act 1990'— omit, insert— 'the Industrial Relations Act 1999, section 73(2)(k)'. 8. Section 106A(1)(f), 'an Industrial Commissioner under the Industrial Relations Act 1990? — omit, insert— 'an industrial commissioner'. 9. Section 106A(2)(b), '7990°'— omit, insert— "1999". ASSOCIATIONS INCORPORATION ACT 1981 1. Section 5(1)(b)(iv)— omit, insert— '(iv) an organisation under the /ndustrial Relations Act 1999 that is incorporated because of the application of section 423207 of that Act; or'. 207 Industrial Relations Act 1999, section 423 (Incorporation on registration if not already incorporated) BW Ne aonnann 111418 20Industrial Relations SCHEDULE 3 (continued) BRISBANE TRADES HALL MANAGEMENT ACT 1984 1. Section 15(1), '7990'— omit, insert— "1999". BUILDING AND CONSTRUCTION INDUSTRY (PORTABLE LONG SERVICE LEAVE) ACT 1991 1. Section 3, definition "award", paragraph (a)— omit, insert— '(a) an award under the Industrial Relations Act 1999, or'. 2. Section 3, definition "industrial agreement", 'Workplace Relations Act 1997— omit, insert— 'Industrial Relations Act 1999. 3. Section 61, heading, 'Workplace Relations Act'— omit, insert— 'Industrial Relations Act'. 4. Section 61(1)(b), from 'Workplace' to 'part 4'— omit, insert— 'Industrial Relations Act 1999, chapter 2, part 3'. 11 13 1518Industrial Relations SCHEDULE 3 (continued) 5. Section 61(4), from 'Workplace' to 'part 4'°— omit, insert— 'Industrial Relations Act 1999, chapter 2, part 3'. 6. Section 61(4), 'section 207'— omit, insert— "section 56'. 7. Section 62(8), from 'Workplace' to 'or 204'— omit, insert— 'Industrial Relations Act 1999, section 46 or 49'. 8. Section 107, 'Workplace Relations Act 19977— omit, insert— 'Industrial Relations Act 1999. CORRECTIVE SERVICES (ADMINISTRATION) ACT 1. Section 34(5), definition "industrial award", '1990'— omit, insert— 1999'. 1114 16Industrial Relations SCHEDULE 3 (continued) CRIMINAL JUSTICE ACT 1989 1. Section 104(1), 'Workplace Relations Act 19977— omit, insert— 'Industrial Relations Act 1999'. EDUCATION (WORK EXPERIENCE) ACT 1996 1. Schedule, definition "law", '1990'— omit, insert— "1999". ELECTORAL ACT 1992 1. Schedule, section 287(1), definition "registered industrial organisation" — omit, insert— ' "registered industrial organisation" means— (a) a body registered as an industrial organisation, or a body whose registration was continued or preserved, under the Jndustrial Relations Act 1999; or (b) an organisation registered under the Workplace Relations Act 1996 (Cwlth) or the law of another State or territory about the registration of industrial organisations or unions.'. 11 13 1518Industrial Relations SCHEDULE 3 (continued) ELECTRICITY ACT 1994 1. Section 131(7), '1990'— omit, insert— "1999". EQUAL OPPORTUNITY IN PUBLIC EMPLOYMENT ACT 1992 1. Section 3, definition "trade union"— omit, insert— ' "trade union" means— '(a) an association registered as an industrial organisation of employees, or an association whose registration was continued or preserved, under the /ndustrial Relations Act 1999; or (b) an organisation of employees under the Workplace Relations Act 1996 (Cwlth).'. FUNERAL BENEFIT BUSINESS ACT 1982 1. Section 55(c) and (d)— omit, insert— '(c) a body registered as an industrial organisation, or a body whose registration was continued or preserved, under the Jndustrial Relations Act 1999; or'. '(d) an association registered as an organisation under the Workplace Relations Act 1996 (Cwlth);'. 1114 17 1922 Industrial Relations SCHEDULE 3 (continued) HEALTH RIGHTS COMMISSION ACT 1991 1. Section 3(1), definition "industrial organisation"— omit, insert— ' "industrial organisation" means a body registered as an industrial organisation, or a body whose registration was continued or preserved, under the Jndustrial Relations Act 1999.'. HEALTH SERVICES ACT 1991 1. Section 2, definition "award"— omit, insert— 6 6. award" means an award under the Jndustrial Relations Act 1999 or Workplace Relations Act 1996 (Cwlth).'. 2. Section 2, definition "industrial agreement", '1990'— omit, insert— "1999". INDUSTRIAL RELATIONS (PROTECTION FROM INVALIDITIES) ACT 1991 1. Section 4, definitions "Commonwealth Act", "counterpart federal body", "federal organisation" and "organisation", 'Industrial Organisations Act 1997'— omit, insert— 'Industrial Relations Act 1999. Ankh W NY 11 1316 1821 Industrial Relations SCHEDULE 3 (continued) 2. Section 4, definitions "commission", "full court" and "registrar", 1 'Workplace Relations Act 19977— 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 JUDGES (SALARIES AND ALLOWANCES) ACT 1967 11 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) Industrial Relations SCHEDULE 3 (continued) '(2) However, the total of the annual rates of salary and allowances payable must not be reduced by a determination.'. 2. Section 12(8)(b), '7990'— omit, insert— "1999. LIQUID FUEL SUPPLY ACT 1984 1. Section 24(3)(d), '1990'— omit, insert— "1999". LOCAL GOVERNMENT ACT 1993 1. Section 1151(3), '7990'-— omit, insert— "1999". PARLIAMENTARY SERVICE ACT 1988 1. Section 4, definition "industrial agreement", 'Industrial Relations Act 1990°'— omit, insert— 'Industrial Relations Act 1999, schedule 5, definition "industrial agreement" *. NOR 1216 19 Industrial Relations SCHEDULE 3 (continued) 2. Section 4, definition "industrial award", 'Industrial Relations Act 1990, section 5, definition "award" '— omit, insert— 'Industrial Relations Act 1999, schedule 4, definition "award" '. 3. Section 49, '1990'— omit, insert— "1999". PASTORAL WORKERS' ACCOMMODATION ACT 1. Section 5, definition "award"— omit, insert— ' "award" means an award, industrial agreement, certified agreement or QWA under the /ndustrial Relations Act 1999.'. 2. Section 30(1), 'within the meaning of the Industrial Relations Act 1990'— omit. 3. Section 30(2), 'constituted under the Industrial Relations Act 1990'— omit. 4. Section 30(3), '1990'— omit, insert— "1999". BW Ne Nn 11 13 15 18 21Industrial Relations SCHEDULE 3 (continued) POLICE SERVICE ADMINISTRATION ACT 1990 1. Section 1.4, definition "award", '1990'— omit, insert— "1999. 2. Section 1.4, definition "industrial agreement"— omit, insert— ' "industrial agreement" means— (a) an industrial agreement continued in force under the Jndustrial Relations Act 1999; or (b) acertified agreement under the /ndustrial Relations Act 1999.'. 3. Section 5.15, '1990'— omit, insert— "1999". PRIVATE EMPLOYMENT AGENCIES ACT 1983 1. Section 5, definition "award"— omit, insert— ' "award" means an award, industrial agreement, certified agreement or QWA under the /ndustrial Relations Act 1999.'. 2. Section 41, '1990'— omit, insert— "1999. onAmAa A DWN 1216 18 20Industrial Relations SCHEDULE 3 (continued) PUBLIC SERVICE ACT 1996 1. Section 106(1), 'Workplace Relations Act 19977— omit, insert— 'Industrial Relations Act 1999. 2. Section 116(2), 'Workplace Relations Act 19977— omit, insert— 'Industrial Relations Act 1999. 3. Section 116(3), 'Workplace Relations Act 1997, section 290'— omit, insert— 'Industrial Relations Act 1999, section 276209". 4. Section 116A, heading, 'Workplace Relations Act'— omit, insert— 'Industrial Relations Act'. 5. Section 116A(1), 'Workplace Relations Act 1997,— omit, insert— 'Industrial Relations Act 1999. 6. Schedule 3, definitions "award", "industrial agreement" and "reserved matter"— omit. 209 Section 276 (Power to amend or void contracts) 121518 Industrial Relations SCHEDULE 3 (continued) 7. Schedule 3— insert— ' "award" see the /ndustrial Relations Act 1999, schedule 5, dictionary. "industrial agreement" means— (a) an industrial agreement under the /ndustrial Relations Act 1999; or (b) acertified agreement under the /ndustrial Relations Act 1999. "industrial matter" see the Jndustrial Relations Act 1999, section 7210'. 8. Schedule 3, definition "industrial relations Minister", 'Workplace Relations Act 1997— omit, insert— 'Industrial Relations Act 1999. QUEENSLAND TOURIST AND TRAVEL CORPORATION ACT 1979 1. Section 16(2) and (3), '7990'— omit, insert— 1999'. RACING AND BETTING ACT 1980 1. Section 13(2), '1990'— omit, insert— *1999'. 210 Section 7 (What is an industrial matter) co N DADWN fF WY WY 1114 1621 Industrial Relations SCHEDULE 3 (continued) RETIREMENT VILLAGES ACT 1988 1. Section 51(6), '7990'— omit, insert— "1999. SUPERANNUATION (STATE PUBLIC SECTOR) ACT 1. After section 30B— insert— 'No appeal to industrial commission '30C. No appeal lies to the industrial commission in relation to any decision under this Act.'. TRADING (ALLOWABLE HOURS) ACT 1990 1. Section 4, definition "Chief Industrial Inspector" — omit, insert— ' "chief industrial inspector" means the chief inspector under the Industrial Relations Act 1999.'. 2. Section 4, definition "Commissioner"— omit, insert— ' "commissioner" means an industrial commissioner.'. 11 14 16 18Industrial Relations SCHEDULE 3 (continued) 3. Section 4, definition "Industrial Commission order", 'Industrial Relations Act 1990'— omit, insert— 'Industrial Conciliation and Arbitration Act 1961'. 4. Section 4, definition "industrial inspector" or "inspector"— omit, insert— ' "industrial inspector" or "inspector" means an inspector under the Industrial Relations Act 1999.'. 5. Section 4, definition "industrial organisation"— omit, insert— "industrial organisation" means a body registered as an industrial organisation, or a body whose registration was continued or preserved, under the Jndustrial Relations Act 1999.'. 6. Section 4, definition "industrial registrar', '1990'— omit, insert— *1999°. 7. Section 43(4), '1990'— omit, insert— *1999°. BW Ne CY HD WN 121518Industrial Relations SCHEDULE 3 (continued) VOCATIONAL EDUCATION, TRAINING AND 1 EMPLOYMENT ACT 1991 2 1. Section 4, definition "employer", '7990'— 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 Jndustrial 16 Relations Act 1999; or 17 (b) an organisation under the Workplace Relations Act 1996 18 (Cwlth).'. 19 6. Section 5— 20 omit. 21 Industrial Relations SCHEDULE 3 (continued) 7. Section 9(p)(ij)N— omit, insert— "(i)_ the Industrial Relations Act 1999; or'. 8. Section 76— omit. 9. Section 80— omit. 10. Part 3, division 4— omit. 11. Section 90, heading— omit, insert— 'Effect of death or retirement of partner or transfer of business'. 12. Section 90— insert— "(3) If an apprentice or trainee becomes an employee of an employer (the "new employer") because of the transfer of a business to the new employer from another employer, the training agreement is taken to be assigned to the new employer. "(4) The new employer must give the State Training Council written notice of the name of the new employer within 21 days after the transfer.'. 13. Section 92(1)(b)— omit. 1114 1618 20 22 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 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 ()— 19 omit. 20 Industrial Relations SCHEDULE 3 (continued) 26. Section 124, heading— omit, insert— 'Appeals'. 27. Section 124(1), from '(other than' to 'section 87(9))'— omit. 28. Section 124(3) to (6)— omit, insert— "(3) A person aggrieved by a decision of the commission may appeal to— (a) for a decision relating to the cancellation of a training agreement—the Industrial Relations Commission; or (b) an industrial magistrate. "(4) An appeal under subsection (3)(a) must be in writing given to the Industrial Registrar— (a) 21 days after the day written notice of the decision is given to the person aggrieved; or (b) a further period allowed at any time by the Industrial Relations Commission. "(5) An appeal under subsection (3)(b) must be in writing given to the clerk of the Industrial Magistrates Court within— (a) 21 days after the day written notice of the decision is given to the person aggrieved; or (b) a further period allowed at any time by an industrial magistrate. '(6) The commission, industrial magistrate or Industrial Relations Commission may hear and decide the appeal. "(6A) In deciding the appeal, the commission, industrial magistrate or Industrial Relations Commission may order the cancellation of the training Industrial Relations SCHEDULE 3 (continued) agreement if, and only if, it would be impracticable for training under the 1 agreement to continue.'. 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 Industrial Relations SCHEDULE 3 (continued) immediately after the purported cancellation. "(3) The industrial magistrate or Industrial Relations Commission must take into account any amount paid to the employee by the employer on the purported cancellation or cancellation. '(4) If satisfied an employer has purported to cancel the agreement other than in accordance with this Act, the industrial magistrate or Industrial Relations Commission may order the employer to pay the employee an amount of not more than the monetary value of 135 penalty units. "(5) The industrial magistrate or Industrial Relations Commission may make the order in addition to an order for training to be resumed. "(6) A person must not contravene an order under this section. Maximum penalty—S0 penalty units. "(7) If an employer wilfully contravenes an order for training to be resumed, the industrial magistrate or Industrial Relations Commission may— (a) further order the employer to pay the employee— (i) an amount of not more than the monetary value of 50 penalty units; and (11) an amount as remuneration for lost wages; and (b) make further orders until the employer complies with the order.'. WHISTLEBLOWERS PROTECTION ACT 1994 1. Section 47(1)(a) and (b) and (5), '7990'-— omit, insert— "1999, section 5211', 211 Industrial Relations Act 1999, section 5 (Who is an employee) CO OANDYN PWN Se Se Ne Ree nan BW e a ile' on NO Fe Co Oo 23Industrial Relations SCHEDULE 3 (continued) 2. Section 47(3), '1990, section 42'— omit, insert— '1999, section 277212'. WORKCOVER QUEENSLAND ACT 1996 1. Sections 399(10) and 404(10), '7990, section 40 or part 12, division 5.'— omit, insert— "1999, section 276 or chapter 3.213'. 2. Section 528(1), 'Industrial Relations Act'— omit, insert— 'Industrial Relations Act 1999. WORKPLACE HEALTH AND SAFETY ACT 1995 1. Section 66, definition "union", 'Industrial Organisations Act 1997'— omit, insert— 'Industrial Relations Act 1999' . 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) 14Industrial Relations SCHEDULE 4 AMENDMENT OF MODEL ELECTION RULES section 711(4)(a) 1. Section 1, definition "candidates' statement"— omit. 2. Section 1, definition "voter"— omit, insert— © 66. voter" means a person— '(a) was a financial member from 60 days before nominations for the election opened to when nominations close; and (b) whose name is stated on the roll under section 11 or 13.'. 3. Section 4— omit, insert— 'Opening and closing days for nominations '4.(1) The manager of the election must fix the opening day and closing day for nominations for office. '(2) The closing day must be at least 28 days after notice is given under section 6. '(3) Nominations open at midday on the opening day and close at midday on the closing day.'. 4. Section 6(2)(a) and (b)— omit, insert— '(a) the opening day for nominations; and 1316 18 20 22Industrial Relations SCHEDULE 4 (continued) (b) the closing day for nominations; and 1 (c) that nominations for office— 2 (1) open at midday on the opening day; and 3 (11) 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 "() 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 Industrial Relations SCHEDULE 4 (continued) 10. Section 16(1), 'each candidate's statement and'— omit. Industrial Relations SCHEDULE 5 DICTIONARY section 4 1990 Act" means the repealed /ndustrial Relations Act 1990. "accounting deficiency", for chapter 12, part 12, see section 560(d). "accounting records", for chapter 12, part 12, see section 554(3). "accounts", for chapter 12, see section 555. "act", for chapter 12, part 14, see section 604. "additional approval requirements", for chapter 6, part 2, see section 187. "administer", for chapter 8, part 6, see section 316. "adoption leave", for chapter 2, part 2, see section 17. "amalgamated organisation", for chapter 12, part 15, see section 616. "amalgamation", for chapter 12, see section 409. "amalgamation ballot", for chapter 12, part 15, see section 616. "amalgamation day", for chapter 12, part 15, see section 616. "amendment agreement", for chapter 6, part 2, see section 197. "ancillary document", for chapter 6, part 2, see section 197. "appointed member" means— (a) for schedule 2, part 4, see schedule 2, part 4, section 11; and (b) for schedule 2, part 5, see schedule 2, part 5, section 15. "apprentice" means a person who is employed or used in an apprenticeship calling— (a) ifan application for the person's registration as an apprentice has been made under the Vocational Education, Training and Industrial Relations SCHEDULE 5 (continued) Employment Act 1991—until the application is approved or refused; or (b) if the application for the person's registration as an apprentice is approved; or (c) if the person is under 21 years—even if an application for the person's registration as an apprentice has not been made. "apprenticeship" means an approved training scheme under the Vocational Education, Training and Employment Act 1991, section 68(2)(b). "appropriately qualified", for a person to whom a power under this Act may be delegated, includes having the qualifications, experience or standing appropriate to exercise the power. Example of 'standing '— A person's classification level in the public service. "approval notice", for chapter 6, part 2, see section 187. "approved apprenticeship" means an apprenticeship approved by an approving authority for sections 162 and 211. "approved superannuation fund" means a complying superannuation fund— (a) nominated in an industrial instrument; or (b) agreed between an employer and employee under section 405. "approved traineeship" means a traineeship approved by an approving authority for sections 162 and 211, other than a traineeship mentioned in— (a) the Training Wage Award—State; or (b) the National Training Wage Award 1994. "approved training" means training for an apprentice or trainee that is approved by the approving authority. "approving authority" means the Vocational Education, Training and Employment Commission established under the Vocational Education, Training and Employment Act 1991. CY DN FW NE \o RP Re NRO Se Re RW Nn ee Na ee \o No N re SO NR wpehNd BRwWN NN nan wn NN on Ww wh roo Industrial Relations SCHEDULE 5 (continued) "assignment", for chapter 11, part 2, see section 376. "association", for chapter 12, see section 409. "attendance notice" means a notice in the approved form issued by the court, the commission, an Industrial Magistrates Court or the registrar requiring a person to attend at a stated time and place until excused, for 1 or more of the following— (a) to give evidence; (b) to produce a stated document or thing; (c) another purpose specified in the notice. "attempt to commit an offence" see Criminal Code, section 4. "audit report", for chapter 12, see section 409. "Australian commission" means the Australian Industrial Relations Commission. "authorised industrial officer", for chapter 11, part 1, see section 363. "award"— (a) generally, means— (3) an award made under chapter 5 or continued in force under this Act; or (ii) an award as amended under chapter 5; and (b) for chapter 6, part 1, division 3 and part 2, division 6—includes an award under the Commonwealth Act, part VIE. "ballot records", for chapter 12, see section 409. "bargaining agent", for chapter 6, part 2, see section 187. "branch", for chapter 12, see section 409. "business hours" of an employer means the hours of operation of the employer's business. "calling" means— (a) acraft, manufacture, occupation, trade, undertaking or vocation; or Oo ODN DNPW YN eS eK Oo ion' wn Ee Be Hn nn ile' on e \o NN re Oo Nw NN N BR WwW WN Nv Nn N NX NYw \Oo Industrial Relations (b) SCHEDULE 5 (continued) a section of something mentioned in paragraph (a). "candidate", for chapter 12, part 9, see section 514. "casual vacancy", for chapter 12, see section 409. "certified agreement" means a written agreement under chapter 6, part 1 about the relationship between the employer and employees. "certified copy", for chapter 6, part 2, see section 187. "child", for chapter 2, part 2, see section 17. "claim for wages" means a claim— (a) (b) (c) (d) (ec) (f) (g) (h) (i) for an employee's wages payable under an industrial instrument or permit; or for an employee's wages payable under an agreement in which wages are payable at a price or rate higher than that fixed by a relevant industrial instrument or permit; or for an employee's wages payable under an agreement in which wages are payable at a price or rate that is not fixed by a relevant industrial instrument or permit; or for amounts payable, with an employee's written consent, from an employee's wages; or under chapter 11, part 2, division 2; or for amounts payable for a tool allowance under section 138; or for damages for contravention of an agreement made under an industrial instrument; or for damages suffered by an employee because the employer fails to pay the employee's wages; or for compensation under section 83. "collective body", for chapter 12, part 14, see section 604. "collegiate electoral system", for chapter 12, part 4, see section 439. "commission" see section 255. "commissioner" see section 256. Industrial Relations SCHEDULE 5 (continued) "commissioner administrator" see section 259. "committee meeting", for chapter 12, see section 409. "Commonwealth Act" means the Workplace Relations Act 1996 (Cwlth). "Commonwealth award" means an award made under the Commonwealth Act. "complying superannuation fund" see Superannuation Industry (Supervision) Act 1993 (Cwlth). "conduct", for chapter 4, see section 102. "conscientious beliefs", for chapter 4, see section 102. "constituent part", for chapter 12, part 15, see section 616. "construction" means building and construction, civil and engineering construction or demolition work. "continuous service"— (a) for chapter 2, part 2, see section 18; and (b) for chapter 2, part 3, see section 42. "contracted work", for chapter 11, part 2, see section 376. "convicted of a disqualifying offence", for chapter 12, part 9, see section 514. "convicted person", for chapter 12, part 9, see section 515. "corporation", for chapter 12, see section 410. "counterpart federal body", for chapter 12, see section 411. "court" see section 242. "decision" means— (a) a decision of the court, the commission, a magistrate or the registrar; or (b) an award, declaration, determination, direction, judgment, order or ruling; or COND WAR WN 131518 202225 27 Industrial Relations SCHEDULE 5 (continued) (c) an agreement approved, certified, or amended by the commission and an extension of the agreement. "defect", for chapter 12, see section 409. "demarcation dispute" includes— (a) a dispute arising between 2 or more organisations, or within an organisation, about the rights, status or functions of members of the organisations or organisation in relation to the employment o the members; and (b) a dispute arising between employers and employees, or between members of different organisations, about the demarcation of functions of employees or classes of employees; and (c) a dispute about the representation under this Act of the industria interests of employees by an employee organisation. "demarcation dispute undertaking", for chapter 12, see section 409. "deputy registrar" see section 300. "deregistered organisation", for chapter 12, see section 409. "deregistration", for chapter 12, see section 409. "deregistration order", for chapter 12, part 16, see section 638. "designated award", in relation to a person to whom a certified agreement or QWA will apply, means an award that the commission under section 163, or the commission under section 212, has decided is appropriate for deciding whether a certified agreement or QWA passes the no-disadvantage test. "direct voting system", for chapter 12, part 4, see section 438. "discrimination" means discrimination— (a) that would contravene the Anti-Discrimination Act 1991; or (b) on the basis of sexual preference; or (c) on the basis of family responsibilities. "dismiss", for chapter 3, part 5, see section 91. FOO DYQDN FW NK ee ee wn i tl on DHA nn NN SOvtBVS NY NY NY NY NY WN Co ON Dn fF Industrial Relations SCHEDULE 5 (continued) "disqualification period", for chapter 12, part 9, see section 522(1). "disqualifying offence", for chapter 12, part 9, see section 514. "doctor'scertificate" means a certificate signed by a person registered as a doctor under the Medical Act 1939 or a law of the Commonwealth or another State that substantially corresponds to the Medical Act 1939. "dual commissioner" see section 306. "EFA" means an enterprise flexibility agreement continued in force under this Act. "elected", for chapter 12, part 9, see section 514. "election", for chapter 12 see section 409. "electoral commission", for chapter 12, see section 409. "electoral officer", for chapter 12, see section 409. "eligibility rules", for chapter 12, see section 409. "eligible association" means an association that is eligible to be, but is not, registered as an organisation. "eligible employee" means an employee who, under a relevant industrial instrument, is an eligible employee for entitlement to occupational superannuation benefits. "eligible rollover fund" see Superannuation Industry (Supervision) Act 1993 (Cwlth). "employee" means— (a) generally—see section 5; and (b) for chapter 6, part 2—see also section 188(2). "employee organisation", for chapter 12, see section 409. "employer" means— (a) generally—see section 6; and (b) for chapter 6, part 1, includes— (i) amulti-employer; and Oo ON HD NAPW LN 1113 15 1720 22242628 Industrial Relations SCHEDULE 5 (continued) (11) for a project—an organisation of employers; and (c) for chapter 6, part 2—see also section 188(2); and (d) for chapter 11, part 2—see also section 376. "employer organisation", for chapter 12, see section 409. "engage in" conduct for a prohibited reason, for chapter 4, see section 104. "equal remuneration for work of equal or comparable value", for chapter 2, part 5, see section 59. "exempted person", for chapter 4, see section 102. "exemption certificate", for chapter 4, see section 102. "exercising", for chapter 8, part 6, see section 316. "existing employee", for chapter 6, part 2, see section 187. "existing organisation", for chapter 12, part 15, see section 616. "extension agreement", for chapter 6, part 2, see section 187. "family responsibilities" of an employee means the employee's responsibilities to care for or support— (a) a dependent child of the employee; or (b) any other immediate family member who is in need of care or support. "federal organisation", for chapter 12, see section 409. "file"— (a) for chapter 6, part 2, see section 187. (b) for chapter 12, see section 409. "filing receipt", for chapter 6, part 2, see section 187. "filing requirements", for chapter 6, part 2, see section 187. "financial affairs", for chapter 12, part 12, see section 551. "financial hardship payment", for chapter 12, see section 409. "financial year", for chapter 12, part 12, see section 552. Oo DNDN Ff W NY See ee ww NY Fe So = ee AR e a ile' on Nw Ne NY NY NY YS RW NY KF Oo / NON NY NY nN nw Industrial Relations SCHEDULE 5 (continued) "fixed rate", for chapter 11, part 2, division 3, see section 376. "full bench" see section 256. "full pay" means payment in full for the time that an employee is absent from work. "general meeting", for chapter 12, see section 409. "sroup training scheme" see the Vocational Education, Training and Employment Act 1991, section 4. "immediate family" includes— (a) the employee's spouse; and (b) achild, ex-nuptial child, stepchild, adopted child, ex-foster child, parent, grandparent, grandchild or sibling of the employee or employee's spouse. "industrial action" means— (a) generally—a lockout or strike; and (b) for chapter 4—see also section 103. "industrial agreement" means an industrial agreement continued in force under this Act. "industrial association", for chapter 4, see section 102. "industrial authority" means a commission, court, board, tribunal or other entity having authority under the law of the Commonwealth or another State to exercise powers of conciliation or arbitration for industrial matters or industrial disputes. "industrial body", for chapter 4, see section 102. "industrial cause" includes an industrial matter and industrial dispute. "industrial conduct ground", for chapter 12, part 16, see section 637. "industrial dispute" means— (a) a dispute, including a threatened or probable dispute, about an industrial matter; or orANntanan un fBwW NY 111417 2022 24 26 28 Industrial Relations SCHEDULE 5 (continued) (b) asituation that is likely to give rise to a dispute about an industrial matter. "industrial instrument" means an award, certified agreement, QWA, industrial agreement, EFA or order under chapter 5, parts 5 and 6. "industrial law", for chapter 4, see section 102. "industrial matter" see section 7. "industrial relations commission" see section 255. "industrial tribunal", for chapter 9, division 5, see section 345. "initial day" means— (a) for a certified agreement—the day on which it was certified; or (b) fora QWA—the day on which it was approved. "injured employee", for chapter 3, part 5, see section 91. "injury", for chapter 3, part 5, see section 91. "inspector" means a person, including the chief inspector, who holds an appointment as an inspector under section 350. "invalid reason", for a dismissal, see section 73(2). "invalidity", for chapter 12, part 14, see section 604. "IO Act" means the repealed Industrial Organisations Act 1997. "irregularity", for chapter 12, see section 409. "joint session" means proceedings in which a member sits with a member of an industrial authority. "leave application", for chapter 12, part 9, see section 514. "lockout" means an employer's action in closing a workplace, or suspending or discontinuing the employer's business, or any branch of it, or an employer's failure to continue to employ a number of employees, with intent— (a) to compel or induce employees to agree to employment conditions or to comply with demands made on them by the employer, or another employer, contrary to this Act; or \o o ~ an Nn RW Ne See ee ww NY Fe So Ree ns Se Se Be eS oo mOmnN DD Nw a) N N NN Rw NN Hun 28Industrial Relations SCHEDULE 5 (continued) (b) to cause loss or inconvenience to employees; or (c) to incite, instigate, aid, abet or procure another lockout; or (d) to help another employer to compel or induce employees to agree to employment conditions or comply with demands made by the other employer. "long adoption leave", for chapter 2, part 2, see section 17. "long parental leave", for chapter 2, part 2, see section 17. "magistrate" see section 290. "management committee"— (a) for chapter 4, part 1, see section 102; and (b) for chapter 12, see section 409. "maternity leave", for chapter 2, part 2, see section 17. "meat works" means a place where livestock are slaughtered or meat is boned. "member" of the commission means the president, the vice president, the commissioner administrator or a commissioner. "member"— (a) for schedule 2, part 4, see schedule 2, part 4, section 11; and (b) for schedule 2, part 5, see schedule 2, part 5, section 15. "members", for chapter 12, part 16, see section 637. "member's liability", for chapter 12, part 10, division 5, see section 541. "members register", for chapter 12, see section 409. "membership subscription", for chapter 12, see section 409. "mine", for chapter 11, part 2, division 4, see section 376. "model election rules", for chapter 12, see section 409. "mortgagee", for chapter 11, part 2, division 4, see section 376. "mortgagor", for chapter 11, part 2, division 4, see section 376. Co ON DBD WABwW N Se Be NF oO eile' Rw eR num NH N NY NY NH EY SE Rw NHN KF OGD CO ON NON NY NY nN nw Industrial Relations SCHEDULE 5 (continued) "multi-employer" means 2 or more associated employers, whether associated because they— (a) are related corporations; or (b) are engaged in a joint venture or common enterprise; or (c) undertake similar work. "negotiating party" see section 148. "new business", for chapter 6 part 1, means the ongoing operation, once established, of a single business that the employer— (a) proposes to establish at a new workplace; or (b) is establishing at a new workplace; or (c) is relocating to a new workplace; but does not include the construction of the new workplace. "new employee", for chapter 6, part 2, see section 187. "newly registered organisation", for chapter 12, part 15, see section 616. "nominal expiry date"— (a) ofa certified agreement—see section 156; and (b) of a QWA—see section 194. "obstruct" includes assault, hinder, intimidate, resist and threaten to obstruct. "office", for chapter 12, see section 412. "officer"— (a) of the court or commission, see sections 304 and 334(4); and (b) ofan organisation, or branch of an organisation, see section 409. "officers register", for chapter 12, see section 409. "ordinary election", for chapter 12, see section 409. "ordinary rate" means the rate payable for ordinary time under an industrial instrument. CAN DN FW NH a es ND vA F&F Ww NY YF SO ee \o Ny NY NY NY NY NY nA BF Ww NY KF OS NN Na Industrial Relations SCHEDULE 5 (continued) "organisation" — (a) generally—see section 409; and (b) for chapter 12, part 14, see also section 604. "outworker" means a person engaged, for someone else's calling or business, in or about a private residence or other premises that are not necessarily business or commercial premises, to— (a) pack, process, or work on articles or material; or (b) carry out clerical work. "owner", for chapter 2, part 3, see section 42. "parental leave", for chapter 2, part 2, see section 17. "party"— (a) for an industrial instrument or permit—includes a person bound by the instrument or permit; or (b) for chapter 6, part 2—see section 187. "pay" an employee includes pay, with the employee's written consent, on account of the employee. "pay equity" means equal remuneration for men and women workers for work of equal or comparable value. "penalty provision" — (a) for chapter 6, part 1, division 7—see section 182; and (b) for chapter 6, part 2, division 8—see section 218. "period between seasons", for chapter 2, part 3, see section 42. "period of operation", for chapter 6, part 2, see section 195. "permit" means— (a) astudents permit; or (b) an aged or infirm persons permit. "person dissatisfied" with a decision in proceedings means— (a) a party to the proceedings; or Co ON DUNK W NY eS eK Oo ion' wn os eR num ile' on No NY NY NY NY NY NY NY NY oN Dun FW NY KF DOD LH Industrial Relations SCHEDULE 5 (continued) (b) aperson bound by the decision; or (c) if.an inspector started the proceedings—any inspector. "pieceworker" means a person employed in a calling on piecework rates. "place" means— (a) any land, building, structure, vehicle, vessel or aircraft; or (b) part of anything mentioned in paragraph (a). "postal ballot", for chapter 12, see section 409. "presentation meeting", for chapter 12, part 12, see section 565. "president"— (a) see section 243; and (b) for chapter 12, see section 409. "prime contractor", for chapter 11, part 2, see section 376. "prohibited conduct", for chapter 4, see section 102. "prohibited reason", for chapter 4, part 1, see section 104. "project", for chapter 6, part 1, includes construction. "project agreement" means a certified agreement for a project or a proposed project. "proposed amalgamated organisation", for chapter 12, part 15, see section 616. "proposed deregistering organisation", for chapter 12, part 15, see section 616. "protected industrial action" means industrial action protected under section 174. "public holiday" means— (a) the following days— * — New Year's Day (1 January) * Australia Day (26 January) Oo Om ANYN Dn FW NY a a nA FF Ww NY KF SO Ree na ee \o NN re Oo N aS) N NON NY NY nN nw Industrial Relations SCHEDULE 5 (continued) Good Friday Easter Saturday (the day after Good Friday) Easter Monday (the Monday after Good Friday) Anzac Day (25 April) Labour Day (the first Monday in May) Sovereign's birthday (the second Monday in June) Christmas Day (25 December) Boxing Day (26 December); or (b) a day appointed under the Holidays Act 1983 to be a substitute holiday for an day mentioned in paragraph (a); or (c) ashow holiday. "public sector unit" see Public Service Act 1996, section 20214 "QWA" means a Queensland workplace agreement under chapter 6, part 2, see sections 188 and 207. "QWA date", for chapter 6, part 2, see section 187. "rate", for chapter 11, part 2, division 3, see section 376. "record", for chapter 11, part 1, see section 363. "records" means any document containing data. "reduced wages" means wages at a rate less than that provided for under a relevant industrial instrument or permit. "refusal notice", for chapter 6, part 2, see section 187. "register", for chapter 12, see section 409. "registrar" see section 297. "registrar's auditor", for chapter 12, part 12, see section 575. "registration", for chapter 12, see section 409. 214 Public Service Act 1996, section 20 (What is a "public sector unit") oO WN DH HRW NY Se Se Ne eile' Rw See Bee on nN Ne cow Ny NY NY NY NY nA FB Ww NH eS Industrial Relations SCHEDULE 5 (continued) "regular part-time employee" means an employee who— (a) works less than full-time ordinary working hours; and (b) has reasonably predictable hours of work; and (c) is entitled to receive, on a proportionate basis, equivalent wages and employment conditions to those specified in an award for full-time employees who do the same type of work. "relevant award", in relation to a person to whom a certified agreement or QWA will apply, means an award— (a) regulating any employment condition of persons engaged in the same kind of work as that of persons under the agreement; and (b) that, immediately before the initial day of the agreement, binds the person's employer. "relevant employee", for a certified agreement, means an employee whose employment is, or will be, subject to the agreement. "relevant or designated award", for chapter 6, part 2, see section 187. "repealed Act" means the Workplace Relations Act 1997. "representative", for chapter 4, part 1, see section 102. "required number", for chapter 12, see section 409. "season", for chapter 2, part 3, see section 42. "seasonal employment" means employment related to a season. "secretary", for chapter 12, see section 409. "service", for chapter 2, part 6, see section 67. "short adoption leave", for chapter 2, part 2, see section 17. "short parental leave", for chapter 2, part 2, see section 17. "small organisation", for chapter 12, part 16, see section 637. "spouse" of an employee includes— (a) a former spouse; and Industrial Relations SCHEDULE 5 (continued) (b) a de facto spouse, including a spouse of the same sex as the employee. "State peak council" means an association that is effectively representative of a significant number of organisations that represent employers or employees in a range of callings. "State Training Council" see the Vocational Education, Training and Employment Act 1991. "strike"— (a) means the conduct of 2 or more employees who are, or have been, employed by the same employer, or different employers, consisting in— (i) awilful failure to perform work required of them under their employment contracts; or (11) a performance of work in a way in which it is not customarily performed; or (11) the adoption of a practice or strategy resulting in a restriction, limitation or delay in the performance of work or a restriction or limitation of the product of work; or (iv) aban, restriction or limitation on the performance of work or on acceptance or offering for work; or (v) a wilful failure of the employees to attend for work that is not allowed by the employer; or (vi) a wilful failure to perform any work at all by employees who attend for work that is not allowed by the employer; that is because of a combination, agreement or understanding (expressed or implied) entered into by the employees or any of them and that has a purpose— (vii) to compel or induce an employer to agree to employment conditions, or to employ, or cease to employ, a person or class of person, or to comply with demands made by the employees or any of them or by any other employees; or FBEOwo OM ANID HWNAwW NH ee ee wn Ree ns eee wornad Ne cow NN Ne NN Rw NNN NAW WWpN KF COO w Industrial Relations SCHEDULE 5 (continued) (viii)to cause loss or inconvenience to an employer in the conduct of business; or (ix) to incite, instigate, aid, abet or procure another strike; or (x) to help employees in the employment of another employer to compel or induce the employer to agree to employment conditions or to employ, or cease to employ, a person or class of person or to comply with demands made by any employees; and (b) includes conduct capable of constituting a strike even though the conduct relates to part only of the functions the employees must perform in their employment; but (c) does not include action by an employee if— (i) the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and (11) the employee did not unreasonably contravene a direction of his or her employer to perform other available work (whether at the same or another workplace) that was safe and appropriate for the employee to perform. "subcontractor", for chapter 11, part 2, see section 376. "successor" includes assignee and transmittee. "take" a statutory declaration, for chapter 8, part 6, see section 316. "termination agreement", for chapter 6, part 2, see section 198(1). "termination notice", for chapter 6, part 2, see section 198(3). "time and wages record", for chapter 11, part 1, see section 363. "trainee" means a person who is employed or used in a traineeship— (a) if.an application for the person's registration as a trainee has been made under the Vocational Education, Training and Employment Act 1991—until the application is approved or refused; or (b) if the application for the person's registration as a trainee is approved; or 29 31 Industrial Relations SCHEDULE 5 (continued) (c) if the person is employed under conditions that are substantially equivalent to conditions in a traineeship—even if an application for the person's registration as a trainee has not been made. "traineeship" means an approved training scheme under the Vocational Education, Training and Employment Act 1991, section 68(2)(a). "training agreement" see the Vocational Education, Training and Employment Act 1991. "transactions", for chapter 12, part 13, see section 551. "transfer" of a calling includes the transmission, assurance, conveyance, assignment and succession of the calling— (a) either by— (1) operation of law; or (11) agreement, including an agreement effected by a third person; and (b) either before or after the commencement of this Act. "valid majority" means a majority of the relevant employees who cast a valid vote to give an approval, after the employer has given the employees a reasonable opportunity to decide whether they want to give the approval. "vice president" see section 258. "violent offence", for chapter 12, part 9, see section 514. "wage rate" includes pay rate and prices for work. "wages" means— (a) an amount payable to an employee for— (i) work performed, or to be performed, by the employee; or (11) a public holiday; or (11) leave the employee is entitled to; or (iv) termination of employment; or (b) asalary; or oO TDW ND ns WN Se Se Ne aon' Bw Nn eeu Nodic cH Eon NY NY NY NY NY NY NY NK NY WN Co ON Dn F&F WN KF SC Industrial Relations SCHEDULE 5 (continued) (c) an amount payable from wages for the employee, with the employee's written consent; or (d) ashortfall under section 220. "withdrawal", for chapter 12, see section 409. "withdrawal ballot", for chapter 12, part 15, see section 616. "withdrawal day", for chapter 12, part 15, see section 616. "working day" means a day on which employees normally perform work. "young employee" means a person under 21 years engaged in a calling (other than an apprentice or a person subject to the Vocational Education, Training and Employment Act 1991) who receives a lower wage rate than that fixed by an industrial instrument for employees 21 years or over in the calling. © State of Queensland 1999