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Industrial Relations Act 1988

Authoritative Version
  • - C2004A03679
  • In force - Superseded Version
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Act No. 86 of 1988 as made
An Act relating to the prevention and settlement of certain industrial disputes, and for other purposes
Administered by: Attorney-General's
Date of Assent 08 Nov 1988

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Industrial Relations Act 1988

No. 86 of 1988

TABLE OF PROVISIONS

PART I—PRELIMINARY

Section

1.           Short title

2.           Commencement

3.           Objects of Act

4.           Interpretation

5.           Additional operation of Act

6.           Application to Crown

7.           Extension to Christmas Island

PART II—AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Division 1—Establishment of Commission

8.           Establishment of Commission

9.           Appointment of Commission members etc.

10.           Qualifications for appointment

11.           Seniority

12.           Performance of duties on part-time basis

13.           Dual federal and State appointments

14.           Performance of duties by dual federal and State appointees

15.           Dual federal appointments

16.           Tenure of Commission members

17.           Acting President

18.           Acting Deputy Presidents

19.           Oath or affirmation of office

20.           Duty of Commission members

21.           Salary and allowances of Presidential Members etc.

22.           Application of Judges’ Pensions Act

23.           Remuneration and allowances of Commissioners


TABLE OF PROVISIONS—continued

Section

24.           Removal of Presidential Member from office

25.           Outside employment of Commissioner

26.           Leave of absence of Commissioner

27.           Disclosure of interest by Commission members

28.           Termination of appointment of Commissioner

29.           Resignation by Commission member

Division 2Organisation of Commission

30.           Manner in which Commission may be constituted

31.           Powers exercisable by single member of Commission

32.           Functions and powers conferred on members

33.           Powers may be exercised of Commission’s own motion or on application

34.           Continuation of hearing by Commission

35.           Commission divided in opinion

36.           Arrangement of business of Commission

37.           Panels of Commission for particular industries

38.           President to designate Presidential Members

39.           Conference of Commission members

40.           Delegation by President

41.           Protection of Commission members

Division 3Representation and intervention

42.           Representation of parties before Commission

43.           Intervention generally

44.           Particular rights of intervention of Minister

Division 4Appeals to Full Bench and references to Court

45.           Appeals to Full Bench

46.           References to Court by Commission on question of law

Division 5Miscellaneous

47.           Seals of Commission

48.           Rules of Commission

49.           Annual report of Commission

PART III—THE COURT

Division 1Jurisdiction of Court

50.           Jurisdiction of Court

51.           Interpretation of awards

52.           Exclusive jurisdiction

53.           Exercise of Court’s jurisdiction

54.           Reference of proceedings to Full Court

55.           Limitation on appeals to Full Court

56.           Appeals from State and Territory courts

Division 2Appeals to High Court

57.           Limitations on appeals from Court to High Court

Division 3Representation and intervention

58.           Representation of parties before Court

59.           Intervention generally

60.           Particular rights of intervention of Minister


TABLE OF PROVISIONS—continued

Section

Division 4Miscellaneous

61.           Injunctions not to contravene Act etc.

PART IV—AUSTRALIAN INDUSTRIAL REGISTRY

Division 1—Establishment and functions of Australian Industrial Registry

62.           Australian Industrial Registry

63.           Functions of the Industrial Registry

64.           Registries

65.           Seals of the Registry

66.           Annual report of Industrial Registry

Division 2Registrars

67.           Industrial Registrar

68.           Tenure of office of Industrial Registrar

69.           Remuneration and allowances of Industrial Registrar

70.           Outside employment of Industrial Registrar

71.           Disclosure of interests by Industrial Registrar

72.           Leave of absence of Industrial Registrar

73.           Resignation by Industrial Registrar

74.           Termination of appointment of Industrial Registrar

75.           Deputy Industrial Registrars

76.           Acting Industrial Registrar

77.           Acting Deputy Industrial Registrars

78.           Oath or affirmation of office of Registrars

Division 3References and appeals

79.           References by Registrar to Commission

80.           Removal of matters before Registrar

81.           Appeals from Registrar to Commission

82.           References to Court by Registrar on question of law

Division 4Staff

83.           Staff

PART V—INSPECTORS

84.           Inspectors

85.           Identity cards

86.           Powers of inspectors

87.           Inspector to investigate matters affecting safety of employees

88.           Annual report

PART VI—DISPUTE PREVENTION AND SETTLEMENT

Division 1—Functions of Commission generally

89.           General functions of Commission

90.           Commission to take into account the public interest

91.           Commission to encourage agreement on procedures for preventing and settling disputes

92.           Commission to have regard to compliance with disputes procedures

93.           Commission to take account of Racial Discrimination Act and Sex Discrimination Act

94.           Uniformity in relation to certain conditions of employment

95.           No automatic flow on of terms of certified agreements

96.           Schemes of apprenticeship

97.           Safety, health and welfare of employees

98.           Commission to act quickly


TABLE OF PROVISIONScontinued

Section

Division 2Powers and procedures of Commission for dealing with industrial disputes

99.           Notification of industrial disputes

100.           Disputes to be dealt with by conciliation where possible

101.           Findings as to industrial disputes

102.           Action to be taken where dispute referred for conciliation

103.           Completion of conciliation proceedings

104.           Arbitration

105.           Exercise of arbitration powers by member who has exercised conciliation powers

106.           Certain matters to be dealt with by Full Bench

107.           Reference of disputes to Full Bench

108.           President may deal with certain proceedings

109.           Review on application by Minister

110.           Procedure of Commission

Division 3Particular powers of Commission

111.           Particular powers of Commission

112.           Consent awards

113.           Power to set aside or vary awards

114.           Power to make further awards in settlement of industrial dispute etc.

115.           Certified agreements

116.           Operation of certified agreements

117.           Certified agreements may be varied, set aside, terminated etc.

118.           Demarcation disputes

119.           Compulsory conferences

120.           Relief not limited to claim

121.           Power to override certain laws affecting public sector employment

122.           Power to grant preference to members of organisations

123.           Power to provide special rates of wages

124.           Limitation on powers of Commission relating to payments in relation to periods of industrial action

125.           Power to include bans clauses

126.           Stand-down applications

127.           Orders in relation to industrial action involving public sector employment

128.           State authorities may be restrained from dealing with disputes

129.           Joint sessions of Commission

130.           Reference of industrial dispute to local industrial board for report

131.           Boards of reference

132.           Discussions about conciliation and arbitration processes

133.           Industry consultative councils

134.           Power of inspection

Division 4Ballots ordered by Commission

135.           Commission may order secret ballot

136.           Application by members of organisation for secret ballot

137.           Scope of directions for secret ballots

138.           Conduct of ballot

139.           Commission to have regard to result of ballot

140.           Certain members not required to obey directions of organisation

Division 5—Common rules

141.           Common rules

142.           Variation of common rules


TABLE OF PROVISIONS—continued

Section

Division 6Awards of Commission

143.           Making and publication of awards etc.

144.           Form of awards

145.           Date of awards

146.           Commencement of awards

147.           Term of awards

148.           Continuation of awards

149.           Persons bound by awards

150.           Awards of Commission are final

151.           Registrar to review operation of awards

152.           Awards to prevail over State laws, awards etc.

153.           Validity of State orders, awards etc.

154.           Reprints of awards as varied

155.           Expressions used in awards

Division 7Disputes relating to boycotts

156.           Application of Division

157.           Notification of disputes

158.           Powers of Commission

159.           Exercise of powers

160.           Parties

161.           Application of other provisions of Act

162.           Trade Practices Act not affected

163.           Interpretation

Division 8—Exclusive jurisdiction in relation to certain proceedings

164.           Certain actions not to lie under other laws in relation to boycott conduct

165.           Certain actions not to lie under other laws in relation to certain industrial action involving public sector employment

166.           Certain actions not to lie under other laws in relation to breaches of bans clauses

167.           Division not to apply in relation to certain proceedings

Division 9Port Conciliators and Co-ordinating Committees

168.           Appointment of Port Conciliators

169.           Federal Ports Co-ordinating Committee

170.           Port Co-ordinating Committees

PART VII—CO-OPERATION WITH THE STATES

171.           Co-operation with States by President

172.           Co-operation with States by Industrial Registrar

173.           Member of Commission may exercise powers under prescribed State laws

174.           Reference of dispute to State authority for determination

175.           Joint proceedings

176.           Conference with State authorities

177.           Industrial matters affecting the oil industry in New South Wales

PART VIII—COMPLIANCE

Division 1—Penalties for contravention of awards and orders

178.           Imposition and recovery of penalties

179.           Recovery of wages etc.

180.           Unclaimed moneys


TABLE OF PROVISIONS—continued

Section

Division 2Breaches of bans clauses

181.           Conduct in breach of bans clause

182.           Certificate required for enforcement of bans clause

183.           Certificate where settlement action fails

184.           Certificate for breach after settlement action

185.           Certificate for breach before settlement action

186.           Certificate where settlement action not taken

Division 3Cancellation and suspension of awards and orders

187.           Cancellation and suspension of awards and orders

PART IX—REGISTERED ORGANISATIONS

Division 1Registration

188.           Associations capable of applying for registration

189.           Criteria for registration

190.           Applicant for registration may change its name or alter its rules

191.           Registration

192.           Incorporation

193.           Designated Presidential Member to review registration of small organisations

Division 2Rules of organisations

194.           Organisations to have rules

195.           Rules of organisations

196.           General requirements for rules

197.           Rules to provide for elections for offices

198.           Rules to provide for elections by secret postal ballot

199.           Rules to provide for terms of office

200.           Rules may provide for filling of casual vacancies

201.           Rules to provide conditions for loans, grants and donations by organisations

202.           Rules may permit organisation to enter into agreements with State registered unions

203.           Industrial Registrar may determine alterations of rules

204.           Change of name or alteration of eligibility rules of organisation

205.           Alteration of other rules of organisation

206.           Certain alterations of rules to be recorded

207.           Evidence of rules

Division 3Validity and performance of rules

208.           Rules contravening section 196

209.           Directions for performance of rules

Division 4—Conduct of elections for office

210.           Conduct by Australian Electoral Commission

211.           Application for organisation or branch to conduct its elections

212.           Objections to application to conduct elections

213.           Registrar may permit organisation or branch to conduct its elections

214.           Registrar to arrange for conduct of elections

215.           Provisions applicable to elections conducted by Australian Electoral Commission

216.           Death of candidate

217.           Ballot papers etc. to be preserved

Division 5Inquiries into elections

218.           Application for inquiry

219.           Instituting of inquiry

220.           Court may authorise Industrial Registrar to take certain action


TABLE OF PROVISIONS—continued

Section

221.           Interim orders

222.           Procedure at hearing

223.           Action by Court

224.           Industrial Registrar to make arrangements for conduct of elections etc.

225.           Enforcement of orders

226.           Validity of certain acts etc. where election declared void

Division 6Disqualification from office

227.           Interpretation

228.           Certain persons disqualified from holding office in organisations

229.           Application for leave to hold office in organisations by prospective candidate for office

230.           Application for leave to hold office in organisations by office holder

231.           Court to have regard to certain matters

232.           Action by Court

Division 7Amalgamation of organisations

233.           Interpretation

234.           Procedure to be followed for proposed amalgamation etc.

235.           Application for approval to be lodged

236.           Consideration of form of application etc.

237.           Notification of hearing in relation to proposed amalgamation

238.           Submissions

239.           Community of interest declaration

240.           Approval for submission to ballot of amalgamation not involving extension of eligibility rules etc.

241.           Objections in relation to amalgamation involving extension of eligibility rules etc.

242.           Approval for submission to ballot of amalgamation involving extension of eligibility rules etc.

243.           Ballot of members

244.           Notice of ballot etc.

245.           Officer of organisation to provide information for ballot etc.

246.           Determination of approval of amalgamation by members of organisations

247.           Inquiries into irregularities

248.           Approval of amalgamation

249.           Action to be taken after ballot

250.           Resignation from membership

251.           Effect of amalgamation on awards and orders

252.           Holding of offices after amalgamation

253.           Expenses of ballot

Division 8Validating provisions for organisations

254.           Interpretation

255.           Validation of certain acts done in good faith

256.           Validation of certain acts after 4 years

257.           Order affecting application of section 255 or 256

258.           Court may make orders in relation to consequences of invalidity

259.           Court may order reconstitution of branch etc.

260.           Application for membership of organisation by person treated as having been a member

Division 9Membership of organisations

261.           Entitlement to membership of organisations

262.           Court may order that persons shall cease to be members of organisations

263.           Request by member for statement of membership

264.           Resignation from membership

265.           Liability for arrears

266.           Rectification of register of members

267.           Conscientious objection to membership of organisations


TABLE OF PROVISIONS—continued

Section

Division 10Records to be kept and lodged by organisations

268.           Records to be kept and lodged by organisations

269.           Organisations to notify particulars of loans, grants and donations

Division 11Accounts and audit

270.           Interpretation

271.           Application of Division in relation to organisations divided into branches

272.           Organisation to keep proper accounting records

273.           Organisation to prepare accounts etc.

274.           Information to be provided to members or Registrar

275.           Auditors of organisations

276.           Powers and duties of auditors

277.           Fees and expenses of auditors

278.           Removal of auditor from office

279.           Copies of report and audited accounts to be provided to members and presented to meetings

280.           Reports etc. to be lodged in Industrial Registry

281.           Organisation may lodge accounts etc. of all branches

282.           Organisation to forward notices etc. to auditor

283.           Auditor entitled to attend meetings at which report presented

284.           Auditors and other persons to enjoy qualified privilege in certain circumstances

285.           Accounts and audit where income of organisation less than certain amount

Division 12Miscellaneous

286.           Organisation may authorise inspection

287.           Right to participate in certain ballots

288.           Requests by members for information concerning elections and certain ballots

289.           Providing copy of rules on request by member

290.           Disputes between organisations and members

291.           Certificate as to membership of organisation

292.           List of officers to be evidence

293.           Schedule 4—Complementary registration systems

PART X—CANCELLATION OF REGISTRATION

294.           Application for cancellation of registration

295.           Orders where cancellation of registration deferred

296.           Cancellation of registration on technical grounds etc.

297.           Cancellation to be recorded

298.           Consequences of cancellation of registration

PART XI—OFFENCES

299.           Offences in relation to Commission

300.           Attendance at compulsory conferences

301.           Intimidation etc.

302.           Creating disturbance near Commission

303.           Offences by witnesses

304.           False representation of appointment as inspector

305.           Obstructing inspector

306.           Obstructing inspection

307.           Application for secret ballot in relation to industrial action

308.           Compliance with directions in relation to secret ballot

309.           Organisation to notify assignment etc. of member’s business

310.           Failure to provide information in relation to election

311.           Contravention of awards and orders

312.           Incitement to boycott award forbidden

313.           Refusal or failure to comply with direction in relation to election

314.           Failure to preserve ballot papers etc.


TABLE OF PROVISIONScontinued

Section

315.           Offences in relation to elections

316.           Obstructing Industrial Registrar in relation to election inquiry

317.           Offences in relation to ballot

318.           Failure to comply with requirement made in relation to amalgamation

319.           Failure to give statement as to membership of organisation

320.           Offences in relation to conscientious objectors

321.           Offences in relation to records of organisations

322.           Offences in relation to particulars of loans etc.

323.           Offences in relation to keeping and preparation of accounts etc.

324.           Offences in relation to appointment of auditors

325.           Offences in relation to auditor’s report

326.           Offences in relation to obstruction etc. of auditors

327.           Offences in relation to accounts, reports etc.

328.           Failure to lodge accounts etc.

329.           Offences in relation to investigation by Registrar

330.           Offences in relation to lodging of accounts

331.           Offences in relation to accounts of low-income organisations

332.           Failure by returning officer to provide information on request by member

333.           Failure to provide copy of rules on request by member

334.           Certain offences in relation to members of organisations etc.

335.           Offences by organisations in relation to industrial action etc.

336.           Offences in relation to independent contractors etc.

337.           False representation as to membership of organisation

338.           Contracts entered into by agents of employers

339.           Publication of trade secrets etc.

340.           Unauthorised collection of money

341.           Prosecutions

PART XII—FINANCIAL ASSISTANCE AND COSTS

Division 1—Financial assistance

342.           Authorisation of financial assistance

343.           Court may certify that application was reasonable

344.           Applications under sections 208, 209 and 261

345.           Fees for 2 counsel not normally to be paid

346.           Powers of Court not affected

Division 2Costs

347.           Costs only where proceeding instituted vexatiously etc.

PART XIII—MISCELLANEOUS

348.           Delegation by Minister

349.           Conduct by officers, directors, employees or agents

350.           No imprisonment in default

351.           Jurisdiction of courts limited as to area

352.           Public sector employer to act through employing authority

353.           Proceedings by and against unincorporated clubs

354.           Inspection of documents etc.

355.           Trade secrets etc. tendered as evidence

356.           Application of penalties

357.           Enforcement of penalties etc.

358.           Appropriation for payment of certain salaries and allowances

359.           Regulations

SCHEDULE 1

INTERPRETATION FOR PURPOSES OF ADDITIONAL OPERATION OF ACT


TABLE OF PROVISIONS—continued

 

SCHEDULE 2

OATH OR AFFIRMATION OF OFFICE

SCHEDULE 3

PERSONS, OTHER THAN EMPLOYEES, WHO MAY BE MEMBERS OF ASSOCIATIONS APPLYING FOR REGISTRATION

SCHEDULE 4

COMPLEMENTARY REGISTRATION SYSTEMS


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Industrial Relations Act 1988

No. 86 of 1988

 

An Act relating to the prevention and settlement of certain industrial disputes, and for other purposes

[Assented to 8 November 1988]

BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:

 

PART I—PRELIMINARY

Short title

1. This Act may be cited as the Industrial Relations Act 1988.

Commencement

2. This Act commences on a day or days to be fixed by Proclamation.

Objects of Act

3. The objects of this Act are:

(a) to promote industrial harmony and co-operation among the parties involved in industrial relations in Australia;


(b) to provide a framework for the prevention and settlement of industrial disputes by conciliation and arbitration in a manner that minimises the disruptive effects of industrial disputes on the community;

(c) to ensure that, in the prevention and settlement of industrial disputes, proper regard is had to the interests of the parties immediately concerned and to the interests (including the economic interests) of the Australian community as a whole;

(d) to facilitate the prevention and prompt settlement of industrial disputes in a fair manner, and with the minimum of legal form and technicality;

(e) to provide for the observance and enforcement of agreements and awards made for the prevention or settlement of industrial disputes;

(f) to encourage the organisation of representative bodies of employers and employees and their registration under this Act;

(g) to encourage the democratic control of organisations, and the participation by their members in the affairs of organisations; and

(h) to encourage the efficient management of organisations.

Interpretation

4. (1) In this Act, unless the contrary intention appears:

“accounting records”, in relation to an organisation, includes books of account and such working papers and other documents as are necessary to explain the methods and calculations by which the accounts of the organisation are made up;

“arbitration powers” means the powers of the Commission in relation to arbitration;

“auditor”, in relation to an organisation, means:

(a) the person who is the holder of the position of auditor of the organisation under section 275; or

(b) where a firm is the holder of the position—each person who is, from time to time, a member of the firm and is a competent person within the meaning of that section;

“award” means an award or order that has been reduced to writing under subsection 143 (1), and includes a certified agreement;

“bans clause” means a term of an award (however expressed) to the effect that engaging in conduct that would hinder, prevent or discourage:

(a) the observance of the award;

(b) the performance of work in accordance with the award; or

(c) the acceptance of, or offering for, work in accordance with the award;

is, to any extent, prohibited;

“boycott” means a contravention of section 45d or 45e of the Trade Practices Act;


“boycott conduct” means conduct that constitutes or would constitute.

(a) a boycott;

(b) attempting to commit a boycott;

(c) aiding, abetting, counselling or procuring a person to commit a boycott;

(d) inducing, or attempting to induce, a person (whether by threats, promises or otherwise) to commit a boycott;

(e) being in any way, directly or indirectly, knowingly concerned in, or party to, the committing by a person of a boycott; or

(f) conspiring with others to commit a boycott;

“breach” includes non-observance;

“certified agreement” means an agreement certified under section 115;

“collegiate electoral system”, in relation to an election for an office in an organisation, means a method of election comprising a first stage, at which persons are elected to a number of offices by a direct voting system, and a subsequent stage or subsequent stages at which persons are elected by and from a body of persons consisting only of:

(a) persons elected at the last preceding stage; or

(b) persons elected at the last preceding stage and other persons (being in number not more than 15% of the number of persons comprising the body) holding offices in the organisation (including the office to which the election relates), not including any person holding such an office merely because of having filled a casual vacancy in the office within the last 12 months, or the last quarter, of the term of the office;

“Commission” means the Australian Industrial Relations Commission;

“Commissioner” means a Commissioner of the Commission;

“committee of management”, in relation to an organisation, association or branch of an organisation or association, means the group or body of persons (however described) that manages the affairs of the organisation, association or branch;

“Commonwealth authority” means:

(a) a body corporate established for a public purpose by or under a law of the Commonwealth or the Australian Capital Territory; or

(b) a body corporate:

(i) incorporated under a law of the Commonwealth or a State or Territory; and

(ii) in which the Commonwealth has a controlling interest;

other than a prescribed body;


“conciliation powers” means the powers of the Commission in relation to conciliation;

“Court” means the Federal Court of Australia;

“demarcation dispute” means:

(a) a dispute arising between 2 or more organisations, or within an organisation, as to the rights, status or functions of members of the organisations or organisation in relation to the employment of those members; or

(b) a dispute arising between employers and employees, or between members of different organisations, as to the demarcation of functions of employees or classes of employees;

“Deputy President” means a Deputy President of the Commission;

“designated Presidential Member”, in relation to a power or function under this Act, means a Presidential Member designated by the President under section 38 to be responsible for the exercise of the power or performance of the function;

“direct voting system”, in relation to an election for an office in an organisation, means a method of election at which:

(a) all financial members; or

(b) all financial members included in the branch, section, class or other division of the members of the organisation that is appropriate having regard to the nature of the office;

are, subject to reasonable provisions in relation to enrolment, eligible to vote;

“electoral official” means an Australian Electoral Officer or a member of the staff of the Australian Electoral Commission;

“eligibility rules”, in relation to an organisation or association, means the rules of the organisation or association that relate to the conditions of eligibility for membership or the description of the industry (if any) in connection with which the organisation is, or the association is proposed to be, registered;

“employee” includes any person whose usual occupation is that of employee;

“employer” includes:

(a) any person who is usually an employer; and

(b) an unincorporated club;

“employing authority”, in relation to a class of employees, means the person or body, or each of the persons or bodies, prescribed as the employing authority in relation to the class of employees;

“financial year”, in relation to an organisation, means:

(a) the period of 12 months commencing on 1 July in any year; or


(b) if the rules of the organisation provide for another period of 12 months as the financial year of the organisation—the other period of 12 months;

“flight crew officer” has the meaning given to it in clause 1 of Schedule 1;

“flight crew officers’ employer” has the meaning given to it in clause 1 of Schedule 1;

“Full Bench” means a Full Bench of the Commission;

“full-time office” means an office the duties of which are of a full-time nature;

“industrial action” means:

(a) the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, the result of which is a restriction or limitation on, or a delay in, the performance of the work, where:

(i) the terms and conditions of the work are prescribed, wholly or partly, by an award or an order of the Commission, by an award, determination or order made by another tribunal under a law of the Commonwealth or otherwise by or under a law of the Commonwealth; or

(ii) the work is performed, or the practice is adopted, in connection with an industrial dispute;

(b) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, in accordance with the terms and conditions prescribed by an award or an order of the Commission, by an award, determination or order made by another tribunal under a law of the Commonwealth or otherwise by or under a law of the Commonwealth;

(c) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, that is adopted in connection with an industrial dispute; or

(d) a failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work;

but does not include:

(e) action by employees that is authorised or agreed to by the employer of the employees; or

(f) action by an employer that is authorised or agreed to by or on behalf of employees of the employer;

“industrial dispute” means:

(a) an industrial dispute (including a threatened, impending or probable industrial dispute):

(i) extending beyond the limits of any one State; and


(ii) that is about matters pertaining to the relationship between employers and employees; or

(b) a situation that is likely to give rise to an industrial dispute of the kind referred to in paragraph (a);

and includes a demarcation dispute;

“Industrial Registry” means the Australian Industrial Registry;

“industry” includes:

(a) any business, trade, manufacture, undertaking or calling of employers;

(b) any calling, service, employment, handicraft, industrial occupation or vocation of employees; and

(c) a branch of an industry and a group of industries;

“inspector” means:

(a) a person appointed as an inspector under subsection 84 (2); or

(b) an officer of the Public Service of a State or Territory to whom an arrangement referred to in subsection 84 (3) applies;

“irregularity”, in relation to an election or ballot, includes:

(a) a breach of the rules of an organisation or branch of an organisation; and

(b) an act or omission by means of which:

(i) the full and free recording of votes by all persons entitled to record votes and by no other persons; or

(ii) a correct ascertainment or declaration of the results of the voting;

is, or is attempted to be, prevented or hindered;

“Judge” has the same meaning as in the Federal Court of Australia Act 1976;

“judgment” has the same meaning as in the Federal Court of Australia Act 1976;

“magistrate’s court” means:

(a) a court constituted by a police, stipendiary or special magistrate;

(b) a court constituted by an industrial magistrate who is also a police, stipendiary or special magistrate; or

(c) in Tasmania—a Court of Requests;

“maritime employee” has the meaning given to it in clause 1 of Schedule 1;

“Northern Territory authority” means:

(a) a body corporate established for a public purpose by or under a law of the Northern Territory; or

(b) a body corporate:


(i) incorporated under a law of the Northern Territory; and

(ii) in which the Northern Territory has a controlling interest;

other than a prescribed body;

“occupier”, in relation to premises, includes a person in charge of the premises;

“office”, in relation to an organisation or branch of an organisation, means:

(a) an office of president, vice-president, secretary or assistant secretary of the organisation or branch;

(b) the office of a voting member of a collective body of the organisation or branch, being a collective body that has power in relation to any of the following functions:

(i) the management of the affairs of the organisation or branch;

(ii) the determination of policy for the organisation or branch;

(iii) the making, alteration or rescission of rules of the organisation or branch;

(iv) the enforcement of rules of the organisation or branch, or the performance of functions in relation to the enforcement of such rules;

(c) an office the holder of which is, under the rules of the organisation or branch, entitled to participate directly in any of the functions referred to in subparagraphs (b) (i) and (iv), other than an office the holder of which participates only in accordance with directions given by a collective body or another person for the purpose of implementing:

(i) existing policy of the organisation or branch; or

(ii) decisions concerning the organisation or branch;

(d) an office the holder of which is, under the rules of the organisation or branch, entitled to participate directly in any of the functions referred to in subparagraphs (b) (ii) and (iii); or

(e) the office of a person holding (whether as trustee or otherwise) property:

(i) of the organisation or branch; or

(ii) in which the organisation or branch has a beneficial interest;

“officer”, in relation to an organisation or branch of an organisation, means a person who holds an office in the organisation or branch;

“one-tier collegiate electoral system” means a collegiate electoral system comprising only one stage after the first stage;


 

“organisation” means an organisation registered under this Act;

“panel” means a panel to which an industry has been assigned under section 37;

“peak council” means a national council or federation that is effectively representative of a significant number of organisations representing employers or employees in a range of industries;

“pilot” has the meaning given to it in clause 1 of Schedule 1;

“postal ballot” means a ballot for the purposes of which:

(a) a ballot paper is sent by prepaid post to each person entitled to vote; and

(b) facilities are provided for the return of the completed ballot paper by post by the voter without expense to the voter;

“premises” includes any land, building, structure, mine, mine working, ship, aircraft, vessel, vehicle or place;

“President” means the President of the Commission;

“Presidential Member” means the President or a Deputy President;

“previous Act” means the Conciliation and Arbitration Act 1904, and includes any other Act so far as the other Act affects the operation of that Act;

“public sector employment” means employment of, or service by, a person in any capacity (whether permanently or temporarily and whether full-time or part-time):

(a) under the Public Service Act 1922;

(b) by or in the service of a Commonwealth authority;

(c) under a law of the Northern Territory relating to the Public Service of the Northern Territory;

(d) by or in the service of a Northern Territory authority; or

(e) by or in the service of a prescribed person or under a prescribed law;

but, other than in section 121, does not include:

(f) employment of, or service by, a person included in a prescribed class of persons; or

(g) employment or service under a prescribed law;

“Registrar” means the Industrial Registrar or a Deputy Industrial Registrar;

“registry” means the Principal Registry or another registry established under section 64;

“relevant Presidential Member”, in relation to an industrial dispute, means the Presidential Member who is a member of the panel to which the industry concerned has been assigned or, if the industry concerned has not been assigned to a panel, the President;

“secondary office”, in relation to a person who holds an office of member of the Commission and an office of member of a prescribed State


industrial authority, means the office to which the person was most recently appointed;

“ship” has the meaning given to it in clause 1 of Schedule 1;

“special magistrate” means a magistrate appointed as a special magistrate under a law of a State or Territory;

“State industrial authority” means:

(a) a board or court of conciliation or arbitration, or tribunal, body or persons, having authority under a State Act to exercise any power of conciliation or arbitration in relation to industrial disputes within the limits of the State;

(b) a special board constituted under a State Act relating to factories; or

(c) any other State board, court, tribunal, body or official prescribed for the purposes of this definition;

“stevedoring operations” has the meaning given to it in clause 1 of Schedule 1;

“this Act” includes the regulations;

“Trade Practices Act” means the Trade Practices Act 1974;

“trade union” means:

(a) an organisation of employees;

(b) an association of employees that is registered or recognised as a trade union (however described) under the law of a State or Territory; or

(c) an association of employees a principal purpose of which is the protection and promotion of the employees’ interests in matters concerning their employment;

“waterside employer” has the meaning given to it in clause 1 of Schedule 1;

“waterside worker” has the meaning given to it in clause 1 of Schedule 1;

“wharf has the meaning given to it in clause 1 of Schedule 1.

(2) In this Act, a reference to a decision or determination of the Commission includes a reference to a decision or determination made by a member of the Commission in the capacity of designated Presidential Member.

(3) In this Act, unless the contrary intention appears, a reference to an industrial dispute includes a reference to:

(a) a part of an industrial dispute;

(b) an industrial dispute so far as it relates to a matter in dispute; and

(c) a question arising in relation to an industrial dispute.

(4) In this Act, unless the contrary intention appears, a reference to an office in an association or organisation includes a reference to an office in a branch of the association or organisation.

(5) In this Act, unless the contrary intention appears, a reference to:

(a) a person who is eligible to become a member of an organisation; or


(b) a person who is eligible for membership of an organisation;

includes a reference to a person who is eligible merely because of an agreement made under rules of the organisation made under subsection 202 (1).

(6) In this Act, a reference to a ballot or election being conducted, or a step in a ballot or election being taken, by the Australian Electoral Commission is a reference to the ballot or election being conducted, or the step being taken, by an electoral official.

(7) In this Act, a reference to a person making a statement that is to the person’s knowledge false or misleading in a material particular includes a reference to a person making a statement where the person is reckless as whether the statement is false or misleading in a material particular.

(8) In this Act, a reference to engaging in conduct includes a reference to being, whether directly or indirectly, a party to or concerned in the conduct.

(9) For the purposes of this Act:

(a) conduct is capable of constituting industrial action even if the conduct relates to part only of the duties that persons are required to perform in the course of their employment; and

(b) a reference to industrial action includes a reference to a course of conduct consisting of a series of industrial actions.

(10) In the case of employees who are members of the Australian Federal Police, the reference in the definition of “industrial dispute” in subsection (1) to matters pertaining to the relationship between employers and employees does not include a reference to the matters set out in clause 3 of Schedule 1.

Additional operation of Act

5. (1) Without prejudice to its effect apart from this section, this Act also has effect as provided by this section.

(2) This Act has effect as if:

(a) each reference in this Act to preventing or settling industrial disputes, by conciliation or arbitration, included a reference to settling by conciliation, or hearing and determining, industrial issues; and

(b) each reference in this Act to an industrial dispute included a reference to an industrial issue.

(3) For the purposes of this section, the following are industrial issues:

(a) matters pertaining to the relationship between waterside employers and waterside workers, so far as those matters relate to trade or commerce:

(i) between Australia and a place outside Australia;

(ii) between the States; or


(iii) within a Territory, between a State and a Territory, or between 2 Territories;

(b) matters pertaining to the relationship between employers and maritime employees, so far as those matters relate to trade or commerce:

(i) between Australia and a place outside Australia;

(ii) between the States; or

(iii) within a Territory, between a State and a Territory, or between 2 Territories;

(c) matters pertaining to:

(i) the relationship between the Australian National Airlines Commission and flight crew officers employed by the Australian National Airlines Commission;

(ii) the relationship between Qantas Airways Limited and flight crew officers employed by Qantas Airways Limited; or

(iii) the relationship between flight crew officers and flight crew officers’ employers, so far as those matters relate to trade or commerce:

(a) between Australia and a place outside Australia;

(b) between the States; or

(c) within a Territory, between a State and a Territory, or between 2 Territories;

(d) matters pertaining to the relationship between employers and employees in public sector employment;

(e) matters (other than the matters set out in clause 3 of Schedule 1) pertaining to the terms or conditions of service of members of the Australian Federal Police.

(4) The reference in paragraph (3) (a) to matters pertaining to the relationship between waterside employers and waterside workers includes a reference to the matters set out in clause 2 of Schedule 1.

(5) For the purposes of paragraph (3) (c), but without limiting that paragraph, an industrial issue shall be taken to relate to trade or commerce of a kind referred to in subparagraph (3) (c) (iii) so far as the matter relates to:

(a) employment of persons in or for, or for training in or for, the performance of duties as flight crew officers in relation to aircraft engaged in such trade or commerce; or

(b) the performance of duties that include duties as flight crew officers in relation to aircraft engaged in such trade or commerce.

Application to Crown

6. This Act binds the Crown in right of the Commonwealth and each of the States and the Northern Territory, but nothing in this Act renders the Crown in right of the Commonwealth or a State or the Northern Territory liable to be prosecuted for an offence.


Extension to Christmas Island

7. (1) This Act extends to Christmas Island.

(2) This Act applies in relation to Christmas Island with such modifications as are prescribed.

 

PART II—AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Division 1Establishment of Commission

Establishment of Commission

8. (1) There is established a commission by the name of the Australian Industrial Relations Commission.

(2) The Commission consists of:

(a) a President;

(b) such number of Deputy Presidents as, from time to time, hold office under this Act; and

(c) such number of Commissioners as, from time to time, hold office under this Act.

Appointment of Commission members etc.

9. (1) The President, Deputy Presidents and Commissioners shall be appointed by the Governor-General by commission and hold office as provided by this Act.

(2) Each Presidential Member has the same rank, status and precedence as a Judge of the Court.

(3) A Presidential Member or former Presidential Member is entitled to be styled “The Honourable”.

(4) A person is not entitled to be styled “The Honourable” merely because the person is acting, or has acted, as a Presidential Member.

Qualifications for appointment

10. (1) The Governor-General may only appoint a person as the

President if:

(a) the person has been a Judge of a court created by the Parliament or a court of a State or Territory, or has been enrolled as a legal practitioner of the High Court, or the Supreme Court of a State or Territory, for at least 5 years; and

(b) in the opinion of the Governor-General, the person is, because of skills and experience in the field of industrial relations, a suitable person to be appointed as President.

(2) The Governor-General may only appoint a person as a Deputy

President if:


 

(a) the person has been a Judge of a court created by the Parliament or a court of a State or Territory, or has been enrolled as a legal practitioner of the High Court, or the Supreme Court of a State or Territory, for at least 5 years;

(b) the person has had experience at a high level in industry or commerce or in the service of:

(i) a peak council or another association representing the interests of employers or employees; or

(ii) a government or an authority of a government; or

(c) the person has, at least 5 years previously, obtained a degree of a university or an educational qualification of a similar standard after studies in the field of law, economics or industrial relations, or some other field of study considered by the Governor-General to have substantial relevance to the duties of a Deputy President;

and, in the opinion of the Governor-General, the person is, because of skills and experience in the field of industrial relations, a suitable person to be appointed as a Deputy President.

(3) The Governor-General may only appoint a person as a Commissioner if the person has, in the opinion of the Governor-General, appropriate skills and experience in the field of industrial relations.

Seniority

11. The members of the Commission have seniority according to the following order of precedence:

(a) the President;

(b) the Deputy Presidents, according to the days on which their commissions took effect, or, where the commissions of 2 or more of them took effect on the same day, according to the precedence assigned to them by their commissions;

(c) the Commissioners, according to the days on which their commissions took effect, or, where the commissions of 2 or more of them took effect on the same day, according to the precedence assigned to them by their commissions.

Performance of duties on part-time basis

12. (1) A member of the Commission may, with the consent of the President, perform his or her duties on a part-time basis.

(2) Where the President consents to a member performing his or her duties on a part-time basis, the member shall, subject to the Remuneration Tribunal Act 1973, be paid:

(a) such remuneration as is determined by the Remuneration Tribunal; and

(b) such allowances as are prescribed.

(3) In this section:

“member of the Commission” does not include:


(a) the President; or

(b) a person who also holds office as a member of a prescribed State industrial authority.

Dual federal and State appointments

13. A person who is a member of the Commission may be appointed as a member of a prescribed State industrial authority, and a person who is a member of a prescribed State industrial authority may, subject to section 10, be appointed as a member of the Commission, and, subject to any law of the State, a person so appointed may, at the same time, hold the offices of member of the Commission and member of the prescribed State industrial authority.

Performance of duties by dual federal and State appointees

14. As agreed from time to time by the President and the head of the prescribed State industrial authority, a person who holds an office of member of the Commission and an office of member of a prescribed State industrial authority:

(a) may perform the duties of the secondary office; and

(b) may exercise, in relation to a particular matter:

(i) any powers that the person has in relation to the matter as a member of the Commission; and

(ii) any powers that the person has in relation to the matter as a member of the State industrial authority.

Dual federal appointments

15. (1) Nothing in this Act prevents a person who holds office as a member of the Commission from holding at the same time:

(a) an office as member of a prescribed Commonwealth tribunal or prescribed Territory tribunal; or

(b) an office under a Commonwealth or Territory law that provides for the office to be held by a member of the Commission.

(2) A person who is a member of the Commission may, in accordance with and subject to the directions of the President, perform functions as a member of a prescribed Territory tribunal.

(3) In this section:

“tribunal” does not include a court created by the Parliament.

Tenure of Commission members

16. (1) A member of the Commission holds office until the member resigns, is removed from office or attains the age of 65 years.

(2) The appointment of a person who is a member of a prescribed State industrial authority as a member of the Commission may be for a fixed term and, in that case, the person holds office as a member of the Commission until:


 

(a) the term ends;

(b) the person ceases to be a member of the prescribed State industrial authority; or

(c) the person resigns or is removed from office;

whichever first happens.

Acting President

17. (1) The Governor-General may appoint a Deputy President qualified to be appointed as the President to act in the office of President:

(a) during a vacancy in the office (whether or not an appointment has previously been made to the office); or

(b) during any period, or during all periods, when the President is absent from duty or from Australia or is, for any other reason, unable to perform the duties of the office.

(2) Anything done by or in relation to a person purporting to act under subsection (1) is not invalid because:

(a) the occasion for the appointment had not arisen;

(b) there was a defect or irregularity in connection with the appointment;

(c) the appointment had ceased to have effect; or

(d) the occasion for the person to act had not arisen or had ceased.

(3) In this section:

“Deputy President” does not include a person acting as Deputy President.

Acting Deputy Presidents

18. (1) The Governor-General may appoint a person qualified to be appointed as a Deputy President to act as Deputy President for a specified period (including a period that exceeds 12 months) if the Governor-General is satisfied that the appointment is necessary to enable the Commission to perform its functions effectively.

(2) Anything done by or in relation to a person purporting to act under subsection (1) is not invalid because:

(a) the occasion for the appointment had not arisen;

(b) there was a defect or irregularity in connection with the appointment; or

(c) the appointment had ceased to have effect.

(3) For the purposes of subsection (1) only, a person is not disqualified from appointment as a Deputy President merely because the person has attained the age of 65.

Oath or affirmation of office

19. A member of the Commission shall, before proceeding to discharge the duties of the office, take before the Governor-General, a Justice of the High Court, a Judge of the Court or a Judge of the Supreme Court of a


State or Territory an oath or affirmation in accordance with the form in Schedule 2.

Duty of Commission members

20. Each member of the Commission shall keep acquainted with industrial affairs and conditions.

Salary and allowances of Presidential Members etc.

21. (1) The President shall receive salary, expenses of office allowance and travelling allowance at the same rates, and subject to the same conditions, as are applicable in relation to the Chief Judge of the Court.

(2) Each Deputy President shall receive salary, expenses of office allowance and travelling allowance at the same rates, and subject to the same conditions, as are applicable in relation to the Judges of the Court.

(3) The salary and expenses of office allowance of the Presidential Members accrue from day to day and are payable monthly.

(4) Where a person who is a member of a prescribed State industrial authority is appointed as a member of the Commission, the person shall not be remunerated in relation to the office of member of the Commission, but the person may be paid, in relation to expenses in travelling to discharge the duties of the office, such sums (if any) as the Governor-General considers reasonable.

(5) A person who, at the same time, holds the offices of member of the Commission and member of a prescribed Commonwealth tribunal or prescribed Territory tribunal as permitted by section 15:

(a) shall be remunerated in relation to the office of member of the tribunal only in accordance with another law of the Commonwealth or Territory relating to the remuneration of persons holding at the same time offices of member of the Commission and member of the tribunal; but

(b) may be paid, in relation to expenses in travelling to discharge the duties of the office of member of the tribunal, such sums (if any) as the Governor-General considers reasonable.

(6) This section has effect subject to:

(a) section 12; and

(b) any Commonwealth or Territory law making provision as mentioned in paragraph 15 (1) (b).

Application of Judges’ Pensions Act

22. (1) Subject to subsection (2), the Judges’ Pensions Act 1968 does not apply in relation to a Presidential Member if the Presidential Member was, immediately before being appointed as a Presidential Member, an eligible employee for the purposes of the Superannuation Act 1976.


(2) If:

(a) a person was, immediately before being appointed as a Presidential Member, an eligible employee for the purposes of the Superannuation Act 1976; and

(b) within 3 months after being appointed as a Presidential Member, the person elects, by written notice to the Minister, to cease to be an eligible employee for the purposes of that Act;

subsection (1) does not apply, and shall be taken not to have applied, in relation to the person, and the person shall be taken to have ceased to be such an eligible employee immediately before the person was appointed as a Presidential Member.

(3) Where:

(a) a person makes an election under subsection (2); and

(b) the person would, but for this subsection, be entitled to a benefit under Division 1, 2 or 4 of Part V, or under Division 3 of Part IX, of the Superannuation Act 1976;

that Act applies in relation to the person as if the person were not entitled to the benefit.

Remuneration and allowances of Commissioners

23. Subject to the Remuneration Tribunal Act 1973, a Commissioner shall be paid:

(a) such remuneration as is determined by the Remuneration Tribunal; and

(b) such allowances as are prescribed.

Removal of Presidential Member from office

24. The Governor-General may remove a Presidential Member from office on an address praying for removal on the grounds of proved misbehaviour or incapacity being presented to the Governor-General by both Houses of the Parliament in the same session.

Outside employment of Commissioner

25. (1) Subject to subsection (2), a Commissioner shall not, except with the consent of the Minister, engage in paid employment outside the duties of the office.

(2) Subsection (1) does not apply in relation to the holding by a member of an office or appointment in the Defence Force.

Leave of absence of Commissioner

26. (1) The President may grant leave of absence to a Commissioner on such terms and conditions as to remuneration or otherwise as the President determines.

(2) In determining the terms and conditions on which leave of absence is granted to a Commissioner under subsection (1), the President shall have regard to:


(a) any past employment of the Commissioner in the service of a State or an authority of a State; or

(b) any past service of the Commissioner as a member of an authority of a State.

Disclosure of interest by Commission members

27. (1) Where, for the purposes of a proceeding, the Commission is constituted by, or includes, a member of the Commission who has or acquires any interest, pecuniary or otherwise, that could conflict with the proper performance of the member’s functions in relation to the proceeding:

(a) the member shall disclose the interest to the parties to the proceeding; and

(b) unless all the parties consent—the member shall not take part in the proceeding or exercise any powers in relation to the proceeding.

(2) Where the President becomes aware that, for the purposes of a proceeding, the Commission is constituted by, or includes, a member of the Commission who has or acquires any interest, pecuniary or otherwise, that could conflict with the proper performance of the member’s functions in relation to the proceeding:

(a) if the President considers that the member should not take part, or should not continue to take part, in the proceeding—the President shall give a direction to the member accordingly; or

(b) in any other case—the President shall cause the interest of the member to be disclosed to the parties to the proceeding and the member shall not take part in the proceeding or exercise any powers in relation to the proceeding unless all the parties to the proceeding consent.

Termination of appointment of Commissioner

28. (1) The Governor-General may remove a Commissioner from office on an address praying for removal on the grounds of proved misbehaviour or incapacity being presented to the Governor-General by both Houses of the Parliament in the same session.

(2) The Governor-General shall terminate the appointment of a Commissioner who:

(a) becomes bankrupt, applies to take the benefit of a law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of remuneration for their benefit;

(b) is absent from duty, except on leave of absence granted by the President, for 14 consecutive days or for 28 days in any 12 months; or

(c) engages in paid employment outside the duties of the office in contravention of section 25.


Resignation by Commission member

29. A member of the Commission may resign by signed instrument delivered to the Governor-General.

Division 2Organisation of Commission

Manner in which Commission may be constituted

30. (1) Subject to this Act, the Commission may be constituted by:

(a) a single member, or 2 or more members, of the Commission; or

(b) a Full Bench.

(2) A Full Bench consists of at least 3 members of the Commission, including at least 2 Presidential Members, established by the President as a Full Bench for the purposes of a proceeding.

(3) The Commission constituted by a member or members of the Commission may exercise its powers (whether under this Act or otherwise) even though the Commission constituted by another member or other members of the Commission is at the same time exercising the powers of the Commission (whether under this Act or otherwise).

Powers exercisable by single member of Commission

31. Subject to this Act, a function or power of the Commission may be performed or exercised by a single member of the Commission.

Functions and powers conferred on members

32. A function or power conferred by this Act on a member or members of the Commission, however described (including a member in the capacity of designated Presidential Member), shall, where the context admits, be taken to be a function or power conferred on the Commission to be performed or exercised by the member or members.

Powers may be exercised of Commission’s own motion or on application

33. Subject to this Act, the Commission may perform a function or exercise a power:

(a) of its own motion; or

(b) on the application of:

(i) a party to an industrial dispute; or

(ii) an organisation or person bound by an award.

Continuation of bearing by Commission

34. (1) Where:

(a) the hearing of a matter has been commenced before the Commission constituted by a single member; and

(b) before the matter has been determined, the member becomes unavailable;


the President shall appoint another member of the Commission to constitute the Commission for the purposes of the matter.

(2) Where the hearing of a matter has been commenced before the Commission constituted by 2 or more members and, before the matter has been determined, one of the members becomes unavailable, the President:

(a) shall if it is necessary for the purpose of establishing a Full Bench of the Commission under section 30; and

(b) may in any other case;

appoint a member to participate as a member of the Commission for the purposes of the matter.

(3) A member of the Commission becomes unavailable where the member is unable to continue dealing with a matter, whether because the member has ceased to be a member of the Commission or is prevented from taking part in the proceeding by section 27 or for any other reason.

(4) Where the Commission is reconstituted under this section for the purposes of a matter, the Commission as reconstituted shall have regard to the evidence given, the arguments adduced and any award, order or determination made in relation to the matter before the Commission was reconstituted.

Commission divided in opinion

35. If the persons constituting the Commission for the purposes of any proceeding are divided in opinion as to the decision to be given, the decision shall be given, if there is a majority, according to the opinion of the majority, but, if the members are equally divided in opinion, the opinion that shall prevail is:

(a) where the President is a member—the opinion of the President;

(b) where the President is not a member and only one Deputy President is a member—the opinion of the Deputy President;

(c) where the President is not a member and 2 or more Deputy Presidents are members—the opinion of the senior Deputy President; and

(d) in any other case—the opinion of the senior Commissioner who is a member.

Arrangement of business of Commission

36. The President shall direct the business of the Commission.

Panels of Commission for particular industries

37. (1) The President shall, as far as practicable, assign each industry to a panel of members of the Commission consisting of a Presidential Member and at least one Commissioner and, subject to this Act, the powers of the Commission in relation to that industry (other than powers exercisable by a Full Bench) shall, as far as practicable, be exercised by a member or members of the panel.


(2) The Presidential Member who is a member of a panel shall organise and allocate the work of the panel, and the other members of the panel shall comply with directions given by the Presidential Member in relation to that work.

(3) A member of the Commission may be a member of more than one panel.

President to designate Presidential Members

38. (1) Where this Act confers a power or function on a designated Presidential Member, the President shall, by signed instrument, designate at least one Presidential Member to be responsible for the exercise of the power or the performance of the function.

(2) Anything done by or in relation to a person purporting to act under a designation under subsection (1) is not invalid because:

(a) there was a defect or irregularity in relation to the designation; or

(b) the designation had ceased to have effect.

Conference of Commission members

39. The President shall, whenever the President considers it desirable but at least once in each year, summon a conference of the members of the Commission to discuss matters relating to the operation of Part VI and of this Part and, in particular, to discuss means for ensuring speed in the settlement of industrial disputes.

Delegation by President

40. The President may, by signed instrument, delegate to a Deputy President all or any of the President’s powers under this Act.

Protection of Commission members

41. A member of the Commission has, in the performance of functions as a member of the Commission, the same protection and immunity as a Judge of the Court.

Division 3Representation and intervention

Representation of parties before Commission

42. (1) A party to a proceeding before the Commission may appear in person.

(2) Subject to this and any other Act, a party to a proceeding before the Commission may be represented only as provided by this section.

(3) A party (including an employing authority) may be represented by counsel, solicitor or agent:

(a) by leave of the Commission and with the consent of all parties;

(b) by leave of the Commission, granted on application made by a party, if the Commission is satisfied that, having regard to the


subject-matter of the proceeding, there are special circumstances that make it desirable that the parties may be so represented; or

(c) by leave of the Commission, granted on application made by the party, if the Commission is satisfied that the party can only adequately be represented by counsel, solicitor or agent.

(4) A party that is an organisation may be represented by:

(a) a member, officer or employee of the organisation; or

(b) an officer or employee of a peak council to which the organisation is affiliated.

(5) An employing authority may be represented by a prescribed person.

(6) Regulations made for the purposes of subsection (5) may prescribe different classes of persons in relation to different classes of proceedings.

(7) A party other than an organisation or employing authority may be represented by:

(a) an officer or employee of the party;

(b) a member, officer or employee of an organisation of which the party is a member;

(c) an officer or employee of a peak council to which the party is affiliated; or

(d) an officer or employee of a peak council to which an organisation or association of which the party is a member is affiliated.

(8) Where the Minister is a party (other than in the capacity of employing authority), the Minister may be represented by counsel or solicitor or by another person authorised for the purpose by the Minister.

(9) Where the Minister is a party (other than in the capacity of employing authority), another party (including an employing authority) may, with the leave of the Commission, be represented by counsel, solicitor or agent.

(10) In this section (other than paragraph (3) (a)):

“party” includes an intervener.

Intervention generally

43. Where the Commission is of the opinion that an organisation, a person (including the Minister) or a body should be heard in a matter before the Commission, the Commission may grant leave to the organisation, person or body to intervene in the matter.

Particular rights of intervention of Minister

44. (1) The Minister may, on behalf of the Commonwealth, by giving written notice to the Industrial Registrar, intervene in the public interest in a matter before a Full Bench.

(2) The Minister may, on behalf of the Commonwealth, by giving written notice to the Industrial Registrar, intervene in the public interest in


a matter before the Commission so far as the matter involves public sector employment.

Division 4Appeals to Full Bench and references to Court

Appeals to Full Bench

45. (1) Subject to this Act, an appeal lies to a Full Bench, with the leave of the Full Bench, against:

(a) a decision of a member of the Commission by way of a finding in relation to an industrial dispute or alleged industrial dispute;

(b) an award or order made by a member of the Commission otherwise than under section 112;

(c) a decision of a member of the Commission not to make an award or order;

(d) a decision of a member of the Commission under paragraph 111 (1) (g);

(e) a decision of a member of the Commission refusing to certify an agreement under section 115;

(f) a decision (other than in relation to a prescribed matter) in a proceeding before a designated Presidential Member acting in that capacity; and

(g) a decision of a member of the Commission that the member has jurisdiction, or a refusal or failure of a member of the Commission to exercise jurisdiction, in a matter arising under this Act.

(2) A Full Bench shall grant leave to appeal under subsection (1) if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted.

(3) An appeal under subsection (1) may be instituted:

(a) in the case of an appeal under paragraph (1) (b)—by an organisation or person bound by the award or order;

(b) in the case of an appeal under paragraph (1) (e)—by a party to the agreement;

(c) in the case of an appeal under paragraph (1) (f)—by a party to the proceeding; and

(d) in any other case—by an organisation or person aggrieved by the decision or act concerned.

(4) Where an appeal has been instituted under this section, a Full Bench may, on such terms and conditions as it considers appropriate, order that the operation of the whole or a part of the decision or act concerned be stayed pending the determination of the appeal or until further order of the Full Bench.

(5) A Full Bench may direct that 2 or more appeals be heard together, but an organisation or person who has a right to be heard in relation to one


of the appeals may be heard in relation to a matter raised in another of the appeals only with the leave of the Full Bench.

(6) For the purposes of an appeal under this section, a Full Bench:

(a) may admit further evidence; and

(b) may direct a member of the Commission to provide a report in relation to a specified matter.

(7) On the hearing of the appeal, the Full Bench may do one or more of the following:

(a) confirm, quash or vary the decision or act concerned;

(b) make an award, order or decision dealing with the subject-matter of the decision or act concerned;

(c) direct the member of the Commission whose decision or act is under appeal, or another member of the Commission, to take further action to deal with the subject-matter of the decision or act in accordance with the directions of the Full Bench;

(d) in the case of an appeal under paragraph (1) (d)—take any action (including making an award or order) that could have been taken if the decision under paragraph 111 (1) (g) had not been made.

(8) Where, under paragraph (6) (b), a Full Bench directs a member of the Commission to provide a report, the member shall, after making such investigation (if any) as is necessary, provide the report to the Full Bench.

(9) Each provision of this Act relating to the hearing or determination of an industrial dispute extends to the hearing or determination of an appeal under this section.

References to Court by Commission on question of law

46. (1) The Commission may refer a question of law arising in a matter before the Commission for the opinion of the Court.

(2) If the question referred to the Court is not whether the Commission may exercise powers in relation to the matter, the Commission may, in spite of the reference, make an award or order in the matter.

(3) On the determination of the question by the Court:

(a) if the Commission has not made an award or order in the matter—the Commission may make an award or order not inconsistent with the opinion of the Court; or

(b) if the Commission has made an award or order in the matter—the Commission shall vary the award or order in such a way as will make it consistent with the opinion of the Court.

Division 5—Miscellaneous

Seals of Commission

47. (1) The Commission shall have a seal on which are inscribed the words “The Seal of the Australian Industrial Relations Commission”.


(2) A duplicate of the seal shall be kept at each registry.

(3) Such other seals as are required for the business of the Commission shall be kept and used at each registry, and shall be in such form and kept in such custody, as the President directs.

(4) A document, or a copy of a document, purporting to be sealed with the seal of the Commission or a duplicate of the seal, or with a seal referred to in subsection (3), is receivable in evidence without further proof of the seal.

Rules of Commission

48. (1) The President, after consultation with members of the Commission, may, by signed instrument, make rules, not inconsistent with this Act, with respect to:

(a) the practice and procedure to be followed in the Commission; or

(b) the conduct of business in the Commission;

and, in particular:

(c) the manner in which, and the time within which, applications, submissions and objections may be made to the Commission; and

(d) the manner in which applications, submissions and objections may be dealt with by the Commission.

(2) A Rule of the Commission:

(a) is a disallowable instrument for the purposes of section 46a of the Acts Interpretation Act 1901; and

(b) is a statutory rule within the meaning of the Statutory Rules Publication Act 1903.

(3) Until Rules of the Commission have been made under this section with respect to the practice and procedure of the Commission, the regulations may make provision with respect to the matter.

(4) If Rules of the Commission have not been made under this section with respect to the practice and procedure of the Commission, and the regulations do not make provision with respect to the matter, the regulations made under the previous Act (as in force immediately before the commencement of this section) apply, so far as practicable and with all necessary modifications, with respect to the practice and procedure of the Commission in the same manner as they applied immediately before that commencement to the practice and procedure of the Australian Conciliation and Arbitration Commission.

Annual report of Commission

49. (1) The President shall, as soon as practicable after the end of each financial year, prepare and provide to the Minister a report of the operations of the Commission during that year.


(2) The Minister shall cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after its receipt by the Minister.

 

PART III—THE COURT

Division 1Jurisdiction of Court

Jurisdiction of Court

50. (1) The Court has jurisdiction with respect to matters arising under this Act in relation to which:

(a) applications may be made to it under this Act;

(b) questions may be referred to it under this Act;

(c) appeals lie to it under section 56;

(d) penalties may be sued for and recovered under section 178; or

(e) prosecutions may be instituted for offences against this Act.

(2) The jurisdiction conferred on the Court by this Act, and the jurisdiction of the Court under section 24 of the Federal Court of Australia Act 1976 in relation to judgments in matters arising under this Act, shall be exercised in the Industrial Division of the Court.

Interpretation of awards

51. (1) The Court may give an interpretation of an award on application by:

(a) the Minister; or

(b) an organisation or person bound by the award.

(2) The decision of the Court is final and conclusive and is binding on the organisations and persons bound by the award who have been given an opportunity of being heard by the Court.

Exclusive jurisdiction

52. (1) Subject to this Act, the jurisdiction of the Court in relation to an act or omission for which an organisation or member of an organisation is liable to be sued, or to be proceeded against for a pecuniary penalty, is exclusive of the jurisdiction of any other court created by the Parliament or any court of a State or Territory.

(2) The jurisdiction of the Court in relation to matters arising under section 208, 209 or 261 or Division 5 of Part IX is exclusive of the jurisdiction, or any similar jurisdiction, of a State industrial authority.

(3) The jurisdiction of the Court under section 56 is exclusive of the jurisdiction of any court of a State or Territory to hear and determine an appeal from a judgment from which an appeal may be brought to the Court under that section.


Exercise of Court’s jurisdiction

53. (1) Subject to subsection (2), the jurisdiction of the Court may be exercised by a single Judge.

(2) The jurisdiction of the Court shall be exercised by a Full Court in relation to:

(a) questions referred to the Court under section 46 or 82;

(b) matters in relation to which applications are made to the Court under section 153; and

(c) matters in relation to which applications are made to the Court under section 294.

(3) Subsection (2) does not require the jurisdiction of the Court to be exercised by a Full Court in relation to a prosecution for an offence merely because the offence relates to a matter to which that subsection applies.

Reference of proceedings to Full Court

54. (1) At any stage of a proceeding in a matter arising under this Act, a single Judge exercising the jurisdiction of the Court:

(a) may refer a question of law for the opinion of a Full Court;

(b) may, of the Judge’s own motion or on the application of a party, refer the matter to a Full Court to be heard and determined; and

(c) shall, on application by the Minister, refer the matter to a Full Court to be heard and determined.

(2) Where a Judge refers a matter to a Full Court under subsection (1), the Full Court may have regard to any evidence given, or arguments adduced, in the proceeding before the Judge.

Limitation on appeals to Full Court

55. In spite of anything in the Federal Court of Australia Act 1976, an appeal does not lie to a Full Court from a judgment of the Court constituted by a single Judge in an inquiry referred to in section 219 or 247.

Appeals from State and Territory courts

56. (1) An appeal lies to the Court from a judgment of a State court (other than a Supreme Court) or of a court of a Territory in a matter arising under this Act.

(2) It is not necessary to obtain the leave of the Court or the court appealed from in relation to an appeal under subsection (1).

(3) An appeal does not lie to the High Court from a judgment from which an appeal may be made to the Court under subsection (1).

Division 2Appeals to High Court

Limitations on appeals from Court to High Court

57. (1) An appeal does not lie to the High Court from a judgment of a single Judge of the Court under this Act.


(2) Subject to subsection (3), an appeal lies to the High Court, with the leave of the High Court, from a judgment of a Full Court of the Court in a matter arising under this Act.

(3) An appeal does not lie to the High Court from a judgment of a Full Court of the Court:

(a) in a matter arising under section 46, 51, 61 or 82 or Part IX (other than Division 8) unless the judgment was made, given or pronounced in relation to a prosecution for an offence; or

(b) in relation to a contempt of the Court in relation to a proceeding in a matter arising under this Act.

Division 3Representation and intervention

Representation of parties before Court

58. (1) A party to a proceeding before the Court in a matter arising under this Act may appear in person.

(2) Subject to this and any other Act, a party to a proceeding before the Court in a matter arising under this Act may be represented only as provided by this section.

(3) A party (including an employing authority) may be represented by counsel or solicitor.

(4) An employing authority may be represented by a prescribed person.

(5) Regulations made for the purposes of subsection (4) may prescribe different classes of persons in relation to different classes of proceedings.

(6) Subject to subsections (8) and (9), a party that is an organisation may be represented by:

(a) a member, officer or employee of the organisation; or

(b) an officer or employee of a peak council to which the organisation is affiliated.

(7) Subject to subsections (8) and (9), a party other than an organisation or employing authority may be represented by:

(a) an officer or employee of the party;

(b) a member, officer or employee of an organisation of which the party is a member;

(c) an officer or employee of a peak council to which the party is affiliated; or

(d) an officer or employee of a peak council to which an organisation or association of which the party is a member is affiliated.

(8) Subsections (6) and (7) do not apply in relation to:

(a) proceedings under section 56; or

(b) proceedings in relation to offences against this Act.

(9) In a relevant proceeding, a party may be represented as provided by subsections (6) and (7) only with the leave of the Court.


 

(10) In this section:

“party” includes an intervener;

“relevant proceeding” means:

(a) proceedings under section 46, 51, 61, 82 or 153; or

(b) proceedings under section 31 of the Federal Court of Australia Act 1976.

Intervention generally

59. Where the Court is of the opinion that an organisation, person or body should be heard in a proceeding before the Court in a matter arising under this Act, the Court may grant leave to the organisation, person or body to intervene in the proceeding.

Particular rights of intervention of Minister

60. (1) The Minister may, on behalf of the Commonwealth, by giving written notice to the Registrar of the Court, intervene in the public interest in a proceeding before the Court in a matter arising under this Act.

(2) Where the Minister intervenes in a proceeding before the Court, the Court may, in spite of section 347, make an order as to costs against the Commonwealth.

(3) Where the Minister intervenes in a proceeding before the Court, then, for the purposes of the institution and prosecution of an appeal from a judgment given in the proceeding, the Minister shall be taken to be a party to the proceeding.

(4) Where, under subsection (3), the Minister institutes an appeal from a judgment, a court hearing the appeal may, in spite of section 347, make an order as to costs against the Commonwealth.

Division 4Miscellaneous

Injunctions not to contravene Act etc.

61. The Court may grant an injunction requiring a person not to contravene, or to cease contravening, this Act.

 

PART IV—AUSTRALIAN INDUSTRIAL REGISTRY

Division 1Establishment and functions of Australian Industrial Registry

Australian Industrial Registry

62. (1) There is established a registry to be known as the Australian Industrial Registry.

(2) There shall be an Industrial Registrar, and such Deputy Industrial Registrars as are necessary from time to time.

(3) The Industrial Registry shall consist of the Industrial Registrar, the Deputy Industrial Registrars and the other staff referred to in section 83.


(4) The Industrial Registrar shall direct the business of the Industrial Registry.

Functions of the Industrial Registry

63. (1) The functions of the Industrial Registry are:

(a) to keep a register of organisations;

(b) to act as the registry for the Commission and to provide administrative support to the Commission;

(c) to provide advice and assistance to organisations in relation to their rights and obligations under this Act; and

(d) such other functions as are conferred on the Industrial Registry by this Act.

(2) Subject to this Act, the register of organisations shall be kept in such form as the Industrial Registrar considers appropriate.

Registries

64. (1) The Governor-General shall cause a Principal Registry of the Industrial Registry to be established.

(2) The Governor-General may cause other registries of the Industrial Registry to be established, but shall cause at least one registry to be established in each State, the Australian Capital Territory and the Northern Territory.

Seals of the Registry

65. (1) The Industrial Registry shall have a seal on which are inscribed the words “The Seal of the Australian Industrial Registry”.

(2) A duplicate of the seal shall be kept at each registry.

(3) Such other seals as are required for the business of the Industrial Registry shall be kept and used at each registry, and shall be in such form and kept in such custody, as the Industrial Registrar directs.

(4) A document, or a copy of a document, purporting to be sealed with the seal of the Industrial Registry or a duplicate of that seal, or with a seal referred to in subsection (3), is receivable in evidence without further proof of the seal.

Annual report of Industrial Registry

66. (1) The Industrial Registrar shall, as soon as practicable after the end of each financial year, prepare and provide to the Minister a report of the operations of the Industrial Registry during that year.

(2) The Minister shall cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after its receipt by the Minister.


Division 2Registrars

Industrial Registrar

67. (1) The Governor-General shall appoint a person to be the Industrial Registrar.

(2) The Industrial Registrar:

(a) has the powers and functions conferred on the Industrial Registrar, or on a Registrar, by or under this Act or an award; and

(b) shall perform the functions of the Industrial Registry, and has such powers as are necessary for the performance of those functions.

(3) The Principal Registry shall be directly controlled by the Industrial Registrar.

(4) In exercising the powers and performing the functions of his or her office in relation to the Commission, the Industrial Registrar shall comply with any directions given by the President.

(5) In allocating and managing the resources of the Industrial Registry, the Industrial Registrar shall have regard to the needs of the Commission.

Tenure of office of Industrial Registrar

68. (1) Subject to this Part, the Industrial Registrar holds office for such term (not exceeding 7 years) as is specified in the instrument of appointment, but is eligible for re-appointment.

(2) A person who has attained the age of 65 years shall not be appointed or re-appointed as the Industrial Registrar, and a person shall not be appointed or re-appointed as the Industrial Registrar for a term that extends beyond the day on which the person will attain the age of 65 years.

(3) The Industrial Registrar holds office on such terms and conditions (if any) in relation to matters not provided for by this Act as are determined by the Governor-General.

Remuneration and allowances of Industrial Registrar

69. Subject to the Remuneration Tribunal Act 1973, the Industrial Registrar shall be paid:

(a) such remuneration as is determined by the Remuneration Tribunal; and

(b) such allowances as are prescribed.

Outside employment of Industrial Registrar

70. (1) Subject to subsection (2), the Industrial Registrar shall not, except with the consent of the Minister, engage in paid employment outside the duties of the office.

(2) Subsection (1) does, not apply in relation to the holding by the Industrial Registrar of an office or appointment in the Defence Force.


 

Disclosure of interests by Industrial Registrar

71. (1) The Industrial Registrar shall give written notice to the Minister of all direct or indirect pecuniary interests that the Industrial Registrar has or acquires in any business or in any body corporate carrying on any business.

(2) Where the Industrial Registrar has or acquires any interest (whether pecuniary or otherwise) that could conflict with the proper exercise of a power, or the proper performance of a function, in relation to a proceeding before the Industrial Registrar:

(a) the Industrial Registrar shall disclose the interest to the parties to the proceeding; and

(b) unless all the parties consent to the Industrial Registrar exercising the power or performing the function in relation to the proceeding—the Industrial Registrar shall nominate a Deputy Industrial Registrar to exercise the power or perform the function.

Leave of absence of Industrial Registrar

72. The Minister may grant leave of absence to the Industrial Registrar on such terms and conditions as to remuneration or otherwise as the Minister determines.

Resignation by Industrial Registrar

73. The Industrial Registrar may resign by signed instrument delivered to the Governor-General.

Termination of appointment of Industrial Registrar

74. (1) The Governor-General may terminate the appointment of the Industrial Registrar for misbehaviour or physical or mental incapacity.

(2) The Governor-General shall terminate the appointment of the Industrial Registrar if the Industrial Registrar:

(a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of remuneration for their benefit;

(b) is absent from duty, except on leave of absence granted by the Minister, for 14 consecutive days or for 28 days in any 12 months;

(c) engages in paid employment outside the duties of the office in contravention of section 70; or

(d) fails, without reasonable excuse, to comply with section 71.

Deputy Industrial Registrars

75. (1) The Governor-General shall appoint such number of persons to be Deputy Industrial Registrars as are necessary from time to time.

(2) Each Deputy Industrial Registrar:

(a) has the powers and functions conferred on a Registrar by or under this Act or an award; and


(b) subject to the directions of the Industrial Registrar, shall perform the functions of the Industrial Registry, and has such powers as are necessary for the performance of those functions.

Acting Industrial Registrar

76. (1) The Minister may appoint a person to act in the office of Industrial Registrar:

(a) during any vacancy in the office (whether or not an appointment has previously been made to the office); or

(b) during any period, or during all periods, when the Industrial Registrar is absent from duty or from Australia or is, for any other reason, unable to perform the functions of the office.

(2) Anything done by or in relation to a person purporting to act under subsection (1) is not invalid because:

(a) the occasion for the appointment had not arisen;

(b) there was a defect or irregularity in connection with the appointment;

(c) the appointment had ceased to have effect; or

(d) the occasion for the person to act had not arisen or had ceased.

Acting Deputy Industrial Registrars

77. (1) The Minister may appoint a person to act in the office of a Deputy Industrial Registrar:

(a) during a vacancy in the office (whether or not an appointment has previously been made to the office); or

(b) during any period, or during all periods, when the Deputy Industrial Registrar is absent from duty or from Australia or is, for any other reason, unable to perform the duties of the office.

(2) Anything done by or in relation to a person purporting to act under subsection (1) is not invalid because:

(a) the occasion for the appointment had not arisen;

(b) there was a defect or irregularity in connection with the appointment;

(c) the appointment had ceased to have effect; or

(d) the occasion for the person to act had not arisen or had ceased.

Oath or affirmation of office of Registrar

78. A Registrar shall, before proceeding to discharge the duties of the office, take before the Governor-General, a Justice of the High Court, a Judge of the Court or a Judge of the Supreme Court of a State or Territory an oath or affirmation in accordance with the form in Schedule 2.

Division 3References and appeals

References by Registrar to Commission

79. (1) A Registrar may refer a matter, or a question (other than a question of law) arising in a matter, before the Registrar to the President for decision by the Commission.


(2) The Commission may:

(a) hear and determine the matter or question; or

(b) refer the matter or question back to the Registrar, with such directions or suggestions as the Commission considers appropriate.

(3) The powers of the Commission under this section are exercisable by:

(a) the President;

(b) a Presidential Member assigned by the President for the purposes of the matter or question concerned; or

(c) if the President directs—a Full Bench.

Removal of matters before Registrar

80. (1) Where a matter is before a Registrar, the President may order that the matter be heard and determined by the Commission.

(2) The powers of the Commission under this section are exercisable by:

(a) the President;

(b) a Presidential Member assigned by the President for the purposes of the matter concerned; or

(c) if the President directs—a Full Bench.

Appeals from Registrar to Commission

81. (1) Subject to this and any other Act, an appeal lies to the Commission, with the leave of the Commission, against:

(a) the making of any decision, or the doing of any act, by a Registrar in a matter arising under this Act; or

(b) the refusal or failure of a Registrar to make any decision or do any act in a matter arising under this Act.

(2) Where an appeal has been instituted under this section, the Commission may, on such terms and conditions as it considers appropriate, order that the operation of the whole or part of the decision or act concerned be stayed pending the determination of the appeal or until further order of the Commission.

(3) For the purposes of the appeal, the Commission may take evidence.

(4) On the hearing of the appeal, the Commission may do one or more of the following:

(a) confirm, quash or vary the decision or act concerned;

(b) make a decision dealing with the subject-matter of the decision or act concerned;

(c) direct the Registrar whose decision or act is under appeal, or another Registrar, to take further action to deal with the subject-matter of the decision or act in accordance with the directions of the Commission.

(5) The powers of the Commission under this section are exercisable by:

(a) the President;


 

(b) a Presidential Member assigned by the President for the purposes of the appeal concerned; or

(c) if the President directs—a Full Bench.

(6) An appeal does not lie to a Full Bench against a decision under this section.

References to Court by Registrar on question of law

82. (1) A Registrar may refer a question of law arising in a matter before the Registrar for the opinion of the Court.

(2) On the determination of the question by the Court, the Registrar shall not give a decision or do anything in the matter that is inconsistent with the opinion of the Court.

Division 4—Staff

Staff

83. (1) The staff of the Industrial Registry, including the Deputy Industrial Registrars, shall be persons appointed or employed under the Public Service Act 1922.

(2) The Industrial Registrar has all the powers of, or exercisable by, a Secretary of a Department of the Australian Public Service under the Public Service Act 1922, so far as those powers relate to the branch of the Australian Public Service comprising the staff referred to in subsection (1), as if that branch were a separate Department of the Australian Public Service.

 

PART V—INSPECTORS

Inspectors

84. (1) There shall be such inspectors as are necessary from time to time.

(2) The Minister may appoint a person appointed or employed under the Public Service Act 1922 to be an inspector.

(3) Arrangements may be made under section 78 of the Public Service Act 1922 for officers of the Public Service of a State or Territory to exercise the powers and perform the functions of inspectors.

(4) An inspector has such powers and functions in relation to the observance of this Act and awards as are conferred by this Act.

(5) The Minister may, by notice published in the Gazette, give directions specifying the manner in which, and any conditions and qualifications subject to which, powers or functions conferred on inspectors are to be exercised or performed.


(6) An inspector shall comply with directions given under subsection (5).

Identity cards

85. (1) The Minister may issue to an inspector an identity card in a prescribed form.

(2) An inspector shall carry the identity card at all times when exercising powers or performing functions as an inspector.

Powers of inspectors

86. (1) For the purpose of ascertaining whether awards, and the requirements of this Act, are being, or have been, observed, an inspector may, at any time during ordinary working hours or at any other time at which it is necessary to do so for that purpose:

(a) without force, enter:

(i) premises on which the inspector has reasonable cause to believe that work to which an award applies is being or has been performed; or

(ii) a place of business in which the inspector has reasonable cause to believe that there are documents relevant to that purpose; and

(b) on premises or in a place referred to in paragraph (a):

(i) inspect any work, material, machinery, appliance, article or facility;

(ii) as prescribed, take samples of any goods or substances;

(iii) interview any employee;

(iv) require a person having the custody of, or access to, a document relevant to that purpose to produce the document to the inspector within a specified period; and

(v) inspect, and make copies of or take extracts from, a document produced to him or her.

(2) If a person who is required under subparagraph (1) (b) (iv) to produce a document contravenes the requirement, an inspector may, by written notice served on the person, require the person to produce the document at a specified place within a specified period (not being less than 14 days).

(3) Where a document is produced to an inspector under subsection (2), the inspector may:

(a) inspect, and make copies of or take extracts from, the document; and

(b) retain the document for such period as is necessary for the purpose of exercising powers or performing functions as an inspector.

(4) During the period for which an inspector retains a document, the inspector shall permit the person otherwise entitled to possession of the


 

document, or a person authorised by the person, to inspect, and make copies of or take extracts from, the document at all reasonable times.

(5) If an inspector proposing to enter, or being on, premises is required by the occupier to produce evidence of authority, the inspector is not entitled to enter or remain on the premises without producing to the occupier the inspector’s identity card.

Inspector to investigate matters affecting safety of employees

87. (1) Where, in the opinion of a member of the Commission, a matter concerning the safety of employees or other persons in or about a place of work arises in or in relation to an industrial dispute, the member may request the Secretary to the Department to arrange for an inspector to investigate the matter.

(2) The Secretary to the Department shall direct an inspector to investigate the matter, and the inspector shall, as directed:

(a) immediately investigate the matter; and

(b) report as soon as practicable to the member who made the request.

(3) Section 86 applies in relation to an investigation by an inspector under this section.

(4) A report of an inspector under this section shall be considered by the member of the Commission where it is relevant to the performance of the powers and duties of the member under this Act and, unless there are special circumstances that in the member’s opinion render it undesirable to do so, the member shall make the report public.

Annual report

88. (1) The Secretary to the Department shall, as soon as practicable after the end of each financial year, prepare and provide to the Minister a report on the operation of this Part during that year.

(2) The Minister shall cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after its receipt by the Minister.

 

PART VI—DISPUTE PREVENTION AND SETTLEMENT

Division 1Functions of Commission generally

General functions of Commission

89. The functions of the Commission are:

(a) to prevent and settle industrial disputes by conciliation or arbitration; and

(b) such other functions as are conferred on the Commission by this or any other Act.


 

Commission to take into account the public interest

90. In the performance of its functions, the Commission shall take into account the public interest, and for that purpose shall have regard to:

(a) the objects of this Act; and

(b) the state of the national economy and the likely effects on the national economy of any award or order that the Commission is considering, or is proposing to make, with special reference to likely effects on the level of employment and on inflation.

Commission to encourage agreement on procedures for preventing and settling disputes

91. In dealing with an industrial dispute, the Commission shall, where it appears practicable and appropriate, encourage the parties to agree on procedures for preventing and settling, by discussion and agreement, further disputes between the parties or any of them, with a view to the agreed procedures being included in an award.

Commission to have regard to compliance with disputes procedures

92. Where the parties to an industrial dispute are bound by an award that provides for procedures for preventing or settling industrial disputes between them, the Commission shall, in considering whether or when it will exercise its powers in relation to the industrial dispute, have regard to the extent to which the procedures (if applicable to the industrial dispute) have been complied with by the parties and the circumstances of any compliance or noncompliance with the procedures.

Commission to take account of Racial Discrimination Act and Sex Discrimination Act

93. In the performance of its functions, the Commission shall take account of the principles embodied in the Racial Discrimination Act 1975 and the Sex Discrimination Act 1984 relating to discrimination in relation to employment.

Uniformity in relation to certain conditions of employment

94. In determining an industrial dispute, the Commission shall, subject to section 95, provide, so far as possible and so far as the Commission considers proper, for uniformity throughout an industry carried on by employers in relation to hours of work, holidays and general conditions in the industry.

No automatic flow on of terms of certified agreements

95. The Commission is not empowered to include terms in an award, or make an award under section 112 that includes terms, that are based on the terms of a certified agreement unless the Commission is satisfied that including the terms in the award, or making the award, would not:


(a) be inconsistent with principles established by a Full Bench that apply in relation to the determination of wages and conditions of employment; or

(b) otherwise be contrary to the public interest.

Schemes of apprenticeship

96. In determining an industrial dispute in which the rates of pay or conditions of employment applying to apprentices are in question, the Commission shall take into account any scheme of apprenticeship provided by or under the law of a State or Territory.

Safety, health and welfare of employees

97. In determining an industrial dispute, the Commission shall take into account the provisions of any law of a State or Territory relating to the safety, health and welfare of employees in relation to their employment.

Commission to act quickly

98. The Commission shall perform its functions as quickly as practicable.

Division 2Powers and procedures of Commission for dealing with industrial disputes

Notification of industrial disputes

99. (1) As soon as an organisation or an employer becomes aware of the existence of an alleged industrial dispute affecting the organisation or its members or affecting the employer, as the case may be, the organisation or employer shall notify the relevant Presidential Member or a Registrar.

(2) A Minister who is aware of the existence of an alleged industrial dispute may notify the relevant Presidential Member or a Registrar

(3) Where a Registrar is notified of an alleged industrial dispute, or a member of the Commission who is not the relevant Presidential Member becomes aware of the existence of an alleged industrial dispute, the Registrar or member shall inform the relevant Presidential Member.

(4) This section does not apply in relation to a dispute in relation to which Division 7 applies.

Disputes to be dealt with by conciliation where possible

100. (1) Where an alleged industrial dispute is notified under section 99 or the relevant Presidential Member otherwise becomes aware of the existence of an alleged industrial dispute, the relevant Presidential Member shall, unless satisfied that it would not assist the prevention or settlement of the alleged industrial dispute, refer it for conciliation by himself or herself or by another member of the Commission.

(2) If the Presidential Member does not refer the alleged industrial dispute for conciliation, the Commission shall deal with the alleged industrial dispute by arbitration.


Findings as to industrial disputes

101. (1) Subject to subsection (2), where a proceeding in relation to an alleged industrial dispute comes before the Commission, it shall, if it considers that the alleged industrial dispute is an industrial dispute:

(a) determine the parties to the industrial dispute and the matters in dispute; and

(b) record its findings;

but the Commission may vary or revoke any of the findings.

(2) Where the Commission constituted in any manner has made findings in relation to an industrial dispute, the Commission (however constituted) may, for the purpose of exercising powers in subsequent proceedings in relation to the same industrial dispute (other than powers on an appeal in relation to the finding), proceed on the basis of the findings or any of them.

(3) A determination or finding of the Commission on a question as to the existence of an industrial dispute is, in all courts and for all purposes, conclusive and binding on all persons affected by the question.

Action to be taken where dispute referred for conciliation

102. (1) Where an industrial dispute is referred for conciliation, a member of the Commission shall do everything that appears to the member to be right and proper to assist the parties to agree on terms for the prevention or settlement of the industrial dispute.

(2) The action that may be taken by a member of the Commission under this section includes:

(a) arranging conferences of the parties or their representatives presided over by the member; and

(b) arranging for the parties or their representatives to confer among themselves at conferences at which the member is not present.

Completion of conciliation proceeding

103. (1) A conciliation proceeding before a member of the Commission shall be regarded as completed when:

(a) the parties have reached agreement for the settlement of the whole of the industrial dispute and all action under section 112 or 115 arising out of the agreement has been taken; or

(b) whether or not the parties have reached agreement for the settlement of part of the industrial dispute:

(i) the member of the Commission is satisfied that there is no likelihood that, within a reasonable period, conciliation, or further conciliation, will result in agreement, or further agreement, by the parties on terms for the settlement of the industrial dispute or any matter in dispute; or

(ii) the parties to the industrial dispute have informed the member that there is no likelihood of agreement, or further agreement,


on matters in dispute and the member does not have a substantial reason to refuse to regard the conciliation proceeding as completed.

(2) Nothing in this Act prevents the exercise of conciliation powers in relation to an industrial dispute merely because arbitration powers have been exercised in relation to the industrial dispute.

Arbitration

104. (1) When a conciliation proceeding before a member of the Commission in relation to an industrial dispute is completed but the industrial dispute has not been fully settled, the Commission shall proceed to deal with the industrial dispute, or the matters remaining in dispute, by arbitration.

(2) Unless the member of the Commission who conducted the conciliation proceeding is competent, having regard to section 105, to exercise arbitration powers in relation to the industrial dispute and proposes to do so, the member shall make a report under subsection (3).

(3) The member shall, for the purpose of enabling arrangements to be made for arbitration in relation to the industrial dispute, report to the relevant Presidential Member or, if the member is a Presidential Member, to the President, as to the matters in dispute, the parties and the extent to which the industrial dispute has been settled.

(4) The member shall not disclose anything said or done in the conciliation proceeding in relation to matters in dispute that remain unsettled.

(5) In an arbitration proceeding under this Act, unless all the parties agree, evidence shall not be given, or statements made, that would disclose anything said or done in a conciliation proceeding under this Act (whether before a member of the Commission or at a conference arranged by a member of the Commission) in relation to matters in dispute that remain unsettled.

Exercise of arbitration powers by member who has exercised conciliation powers

105. (1) Where a member of the Commission has exercised conciliation powers in relation to an industrial dispute, the member shall not exercise, or take part in the exercise of, arbitration powers in relation to the industrial dispute if a party to the arbitration proceeding objects.

(2) The member shall not be taken to have exercised conciliation powers in relation to the industrial dispute merely because:

(a) after having begun to exercise arbitration powers in relation to the industrial dispute, the member exercised conciliation powers;

(b) the member arranged for a conference of the parties or their representatives to be presided over by the member, but the conference did not take place or was not presided over by the member; or


(c) the member arranged for the parties or their representatives to confer among themselves at a conference at which the member was not present.

Certain matters to be dealt with by Full Bench

106. (1) This section applies to matters involving:

(a) the making of provision for, or the alteration of, the standard hours of work in an industry;

(b) the making of provision for, or the alteration of, rates of wages, or the manner in which rates of wages are to be ascertained, on grounds predominantly related to the national economy and without examination of any circumstances pertaining to the work on which, or the industry in which, persons are employed;

(c) the making of provision for, or the alteration of, a minimum wage that is to be payable to adults without regard to the work performed or to the industry in which they are employed; or

(d) the making of provision in relation to, or the alteration of provision in relation to, annual leave with pay or long service leave with pay.

(2) Where:

(a) in the opinion of a Full Bench, a matter before the Full Bench is a matter to which this section applies; or

(b) in the opinion of the President, a matter before the Commission constituted otherwise than as a Full Bench is a matter to which this section applies;

the power of the Commission to make an award, or to certify an agreement under section 115, in relation to the matter is exercisable only by a Full Bench unless the contents of the award or agreement:

(c) give effect to determinations of a Full Bench; or

(d) are consistent with principles determined by a Full Bench.

(3) The President or a Full Bench may, in relation to the exercise of powers under this section, direct a member of the Commission to provide a report in relation to a specified matter.

(4) The member shall, after making such investigation (if any) as is necessary, provide a report to the President or Full Bench, as the case may be.

Reference of disputes to Full Bench

107. (1) A reference in this section to a part of an industrial dispute includes a reference to:

(a) an industrial dispute so far as it relates to a matter in dispute; or

(b) a question arising in relation to an industrial dispute.

(2) Where a proceeding in relation to an industrial dispute or an alleged industrial dispute is before a member of the Commission, a party to the proceeding or the Minister may apply to the member:


(a) in the case of a proceeding in relation to an alleged industrial dispute—to have the proceeding dealt with by a Full Bench because the subject-matter of the proceeding is of such importance that, in the public interest, the proceeding should be dealt with by a Full Bench; or

(b) in the case of a proceeding by way of conciliation or arbitration—to have the industrial dispute or a part of the industrial dispute dealt with by a Full Bench because the industrial dispute or the part of the industrial dispute is of such importance that, in the public interest, it should be dealt with by a Full Bench.

(3) An application under paragraph (2) (a) may be accompanied by an application under paragraph (2) (b), to be dealt with if the application under paragraph (2) (a) is granted and there is a finding that there is an industrial dispute.

(4) If an application is made under subsection (2) to a member of the Commission other than the President, the member shall refer the application to the President to be dealt with.

(5) The President shall confer with the member about whether the application should be granted.

(6) If the President is of the opinion:

(a) in the case of an application under paragraph (2) (a)—that the subject-matter of the proceeding is of such importance that, in the public interest, the proceeding should be dealt with by a Full Bench; or

(b) in the case of an application under paragraph (2) (b)—that the industrial dispute or the part of the industrial dispute is of such importance that, in the public interest, it should be dealt with by a Full Bench;

the President shall grant the application.

(7) Where the President grants an application under paragraph (2) (a):

(a) the Full Bench shall, if it considers that there is an industrial dispute, record findings under section 101; and

(b) if the application was accompanied by an application under paragraph (2) (b) that was granted—the Full Bench shall, subject to subsection (9), hear and determine the industrial dispute or the part of the industrial dispute.

(8) Where the President grants an application under paragraph (2) (b), the Full Bench shall, subject to subsection (9), hear and determine the industrial dispute or the part of the industrial dispute and, in the hearing, may have regard to any evidence given, and any arguments adduced, in arbitration proceedings in relation to the industrial dispute, or the part of the industrial dispute, before the Full Bench commenced the hearing.


(9) Where the President grants an application under paragraph (2) (b) in relation to an industrial dispute:

(a) the Full Bench may refer a part of the industrial dispute to a member of the Commission to hear and determine; and

(b) the Full Bench shall hear and determine the rest of the industrial dispute.

(10) The President or a Full Bench may, in relation to the exercise of powers under this section, direct a member of the Commission to provide a report in relation to a specified matter.

(11) The member shall, after making such investigation (if any) as is necessary, provide a report to the President or Full Bench, as the case may be.

(12) The President may before a Full Bench has been established for the purpose of hearing and determining, under this section, an industrial dispute or part of an industrial dispute, authorise a member of the Commission to take evidence for the purposes of the hearing and determination, and:

(a) the member has the powers of a person authorised to take evidence under subsection 111 (3); and

(b) the Full Bench shall have regard to the evidence.

President may deal with certain proceedings

108. (1) A reference in this section to a part of an industrial dispute includes a reference to:

(a) an industrial dispute so far as it relates to a matter in dispute; or

(b) a question arising in relation to an industrial dispute.

(2) The President may, whether or not another member of the Commission has begun to deal with a particular proceeding in relation to an alleged industrial dispute or an industrial dispute, decide to deal with the proceeding.

(3) If the President decides to deal with the proceeding, then, unless the President considers that the proceeding does not relate to an industrial dispute:

(a) the President shall make such findings (if any) in relation to the proceeding as are required to be made by section 101 and have not already been made by another member of the Commission; and

(b) the President shall:

(i) if the President is of the opinion that it would assist the settlement of the industrial dispute or a part of the industrial dispute—endeavour to settle the industrial dispute or the part of the industrial dispute by conciliation; and

(ii) if the President is not of that opinion, or has not been able to settle the industrial dispute or a part of the industrial dispute by conciliation:


(a) hear and determine the industrial dispute or the part of the industrial dispute; or

(b) refer the industrial dispute or the part of the industrial dispute to a Full Bench.

(4) If the President refers the industrial dispute or the part of the industrial dispute to a Full Bench, the Full Bench shall hear and determine the industrial dispute or the part of the industrial dispute.

(5) In the hearing of an industrial dispute or a part of an industrial dispute by the President under subsection (3) or by a Full Bench under subsection (4), the President or Full Bench may have regard to any evidence given, and any arguments adduced, in arbitration proceedings in relation to the industrial dispute, or the part of the industrial dispute, before the President or Full Bench commenced to deal with the proceeding concerned.

(6) Where the President has under subsection (3) referred an industrial dispute to a Full Bench:

(a) the Full Bench may refer a part of the industrial dispute to a member of the Commission to hear and determine; and

(b) the Full Bench shall hear and determine the rest of the industrial dispute.

(7) If, before an industrial dispute is dealt with by the President under this section or while an industrial dispute is being dealt with by the President under this section, the parties to the industrial dispute, or any of them, reach agreement on terms for the settlement of all or any of the matters in dispute, the President may refer the agreement to a Full Bench.

(8) The Full Bench shall deal with any request in relation to the agreement under section 112 or 115.

(9) The President or a Full Bench may, in relation to the exercise of powers under this section, direct a member of the Commission to provide a report in relation to a specified matter.

(10) The member shall, after making such investigation (if any) as is necessary, provide a report to the President or Full Bench, as the case may be.

Review on application by Minister

109. (1) The Minister may apply to the President for a review by a Full Bench of:

(a) an award or order made by a member of the Commission; or

(b) a decision of a member of the Commission to certify an agreement under section 115;

where it appears to the Minister that the award, order or agreement is contrary to the public interest.


(2) Where an application is made to the President under subsection (1), the President shall establish a Full Bench to hear and determine the application.

(3) The Full Bench shall, if in its opinion the matter is of such importance that, in the public interest, the award, order or decision should be reviewed, make such review of the award, order or decision as appears to it to be desirable having regard to the matters referred to in the application.

(4) Subsections 45 (4) to (8) (inclusive) apply in relation to a review under this section in the same manner as they apply in relation to an appeal under section 45.

(5) In a review under this section:

(a) the parties to the proceeding in which the award, order or decision was made are parties to the proceeding on the review and are entitled to notice of the hearing; and

(b) the Minister is a party to the proceeding.

(6) Each provision of this Act relating to the hearing and determination of an industrial dispute extends to a review under this section.

(7) Nothing in this section affects any right of appeal or any power of a Full Bench under section 45, and an appeal under that section and a review under this section may, if the Full Bench considers appropriate, be dealt with together.

Procedure of Commission

110. (1) Where the Commission is dealing with an industrial dispute, it shall, in such manner as it considers appropriate, carefully and quickly inquire into and investigate the industrial dispute and all matters affecting the merits, and right settlement, of the industrial dispute.

(2) In the hearing and determination of an industrial dispute or in any other proceedings before the Commission:

(a) the procedure of the Commission is, subject to this Act and the Rules of the Commission, within the discretion Of the Commission;

(b) the Commission is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it considers just; and

(c) the Commission shall act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms.

(3) The Commission may determine the periods that are reasonably necessary for the fair and adequate presentation of the respective cases of the parties to an industrial dispute or other proceeding and require that the cases be presented within the respective periods.


 

(4) The Commission may require evidence or argument to be presented in writing, and may decide the matters on which it will hear oral evidence or argument.

Division 3Particular powers of Commission

Particular powers of Commission

111. (1) Subject to this Act, the Commission may, in relation to an industrial dispute:

(a) take evidence on oath or affirmation;

(b) make an award or order in relation to all or any of the matters in dispute, including:

(i) a provisional award or order;

(ii) an interim award or order; or

(iii) on application under section 112, an award that is expressed to be made by consent;

(c) on application under section 115, certify an agreement;

(d) give a direction in the course of, or for the purposes of, the hearing or determination of the industrial dispute;

(e) make an award or order including, or vary an award or order so as to include, a provision to the effect that engaging in conduct in breach of a specified term of the award or order shall be taken to constitute the commission of a separate breach of the term on each day on which the conduct continues;

(f) set aside, revoke or vary an award, order, direction, determination or other decision of the Commission;

(g) dismiss a matter or part of a matter, or refrain from further hearing or from determining the industrial dispute or part of the industrial dispute, if it appears:

(i) that the industrial dispute or part is trivial;

(ii) that the industrial dispute or part has been dealt with, is being dealt with or is proper to be dealt with by a State industrial authority;

(iii) that further proceedings are not necessary or desirable in the public interest;

(iv) that a party to the industrial dispute is engaging in conduct that, in the Commission’s opinion, is hindering the settlement of the industrial dispute or another industrial dispute; or

(v) that a party to the industrial dispute:

(a) has breached an award or order of the Commission; or

(b) has contravened a direction or recommendation of the Commission to stop industrial action;


(h) hear and determine the industrial dispute in the absence of a party who has been summoned or served with notice to appear;

(j) sit at any place;

(k) conduct its proceedings, or any part of its proceedings, in private;

(m) adjourn to any time and place;

(n) refer any matter to an expert and accept the expert’s report as evidence;

(o) direct parties to be joined or struck out;

(p) allow the amendment, on such terms as it considers appropriate, of any application or other document relating to any proceeding;

(q) correct, amend or waive any error, defect or irregularity, whether in substance or form;

(r) extend any prescribed time;

(s) summon before it the parties to the industrial dispute, the witnesses, and any other persons whose presence the Commission considers would help in the hearing or determination of the industrial dispute, and compel the production before it of documents and other things for the purpose of reference to such entries or matters only as relate to the industrial dispute; and

(t) generally give all such directions, and do all such things, as are necessary or expedient for the speedy and just hearing and determination of the industrial dispute.

(2) Unless the context otherwise requires, a reference in this section to an industrial dispute includes a reference to any other proceeding before the Commission.

(3) The Commission may, in writing, authorise a person (including a member of the Commission) to take evidence on its behalf, with such limitations (if any) as the Commission directs, in relation to an industrial dispute, and the person has all the powers of the Commission to secure the attendance of witnesses, the production of documents and things and the taking of evidence on oath or affirmation.

Consent awards

112. (1) If the parties to an industrial dispute or any of them reach agreement on terms for the settlement of all or any of the matters in dispute, they may apply to the Commission for the making of an award giving effect to their agreement.

(2) The Commission shall not make an award giving effect to their agreement unless it is of the opinion that it is in the public interest that the award should be made.

(3) An award made on application under this section is binding on:

(a) each of the parties making the application;

(b) all members of an organisation that is a party making the application; and


(c) an employer who is a successor, assignee or transmittee (whether immediate or not) to or of the business or part of the business of a party making the application, including a corporation that has acquired or taken over the business or part of the business of the party.

Power to set aside or vary awards

113. (1) The Commission may set aside an award or any of the terms of an award.

(2) The Commission may, and shall if it considers it desirable for the purpose of removing ambiguity or uncertainty, vary an award.

(3) The Commission may, on application by an organisation or person bound by an award, vary a term of the award referring by name to an organisation or person bound by the award:

(a) to reflect a change in the name of the organisation or person; or

(b) where:

(i) the registration of the organisation has been cancelled; or

(ii) the organisation or person has ceased to exist;

to omit the reference to its name.

(4) This Act applies in relation to applications, and proceedings in relation to applications, for the setting aside or variation of awards in the same manner, as far as possible, as it applies in relation to industrial disputes and proceedings in relation to industrial disputes, and for that purpose such an application shall be treated as if it were the notification of an industrial dispute.

Power to make further awards in settlement of industrial dispute etc.

114. The fact that an award or order has been made for the settlement of an industrial dispute, or that an award or order made for the settlement of an industrial dispute is in force, does not prevent:

(a) a further award or order being made for the settlement of the industrial dispute; or

(b) an award or order being made for the settlement of a further industrial dispute between all or any of the parties to the earlier award or order, and whether or not the subject-matter of the further industrial dispute is the same (in whole or part) as the subject-matter of the earlier industrial dispute.

Certified agreements

115. (1) If the parties to an industrial dispute or any of them agree on terms for the settlement of all or any of the matters in dispute, they may make a memorandum of the terms agreed on.

(2) The memorandum of agreement shall specify the period for which the agreement is to continue in force.


(3) The parties to the agreement may apply to the Commission for the certification of the agreement.

(4) If the Commission is of the opinion that the agreement is in the interests of the parties immediately concerned, the Commission shall, subject to subsections (6), (7) and (8), certify the agreement unless it is of the opinion that it would be contrary to the public interest to certify the agreement.

(5) Certification of the agreement shall not be taken to be contrary to the public interest merely because the agreement is inconsistent with general Full Bench principles.

(6) If, in the opinion of the President, the agreement is inconsistent with general Full Bench principles, the powers of the Commission under this section are exercisable only by a Full Bench.

(7) The Commission is not empowered to certify the agreement if it includes terms based on the terms of another certified agreement unless the Commission is satisfied that the inclusion of the terms in the agreement is justified in the particular circumstances of the case.

(8) If it appears to the Commission that the agreement wholly or substantially regulates all the matters pertaining to the relationship between:

(a) the employers who are parties to the agreement; and

(b) the employees whose employment is dealt with in the agreement;

the Commission shall not certify the agreement unless it includes provisions setting out procedures for preventing and settling, by discussion and agreement, further disputes between the parties.

(9) Subsection (4) shall not be taken to require the Commission to certify the agreement if it is of the opinion that:

(a) the terms are not in settlement of an industrial dispute; or

(b) any of the terms is a term that the Commission does not have power to include in an award.

(10) In this section:

“general Full Bench principles” means principles established by a Full Bench that apply in relation to the determination of wages and conditions of employment, other than principles that apply in relation to the certification of agreements under this section.

Operation of certified agreements

116. (1) While a certified agreement is in force:

(a) the terms of the agreement prevail over the terms of an award or an order of the Commission binding on the parties to the agreement that deals with the same matters;

(b) a term of the agreement shall not be set aside or varied by the parties;


(c) the agreement or a term of the agreement shall not be set aside under subsection 113 (1);

(d) the agreement may only be varied under subsection 113 (2) for the purpose of:

(i) removing ambiguity or uncertainty;

(ii) including, omitting or varying a bans clause; or

(iii) including, omitting or varying a term (however expressed) that authorises an employer to stand-down an employee; and

(e) the Commission shall not exercise arbitration powers in relation to the matters dealt with in the agreement.

(2) The agreement may, by express provision, exclude or limit the operation of subparagraphs (1) (d) (ii) and (iii).

(3) A certified agreement comes into force when it is certified and, in spite of section 148, remains in force until:

(a) the end of the period specified in the agreement under subsection 115 (2);

(b) the Commission sets aside the agreement under subsection 117 (3);

(c) because of declarations made under subsection 117 (6) or (9):

(i) all the remaining parties to the agreement are organisations of employees; or

(ii) all the remaining parties to the agreement are employers or organisations of employers; or

(d) the agreement is terminated under subsection 117 (9);

whichever happens first.

(4) An award constituted by a certified agreement is binding on:

(a) each of the parties to the agreement;

(b) all members of an organisation that is a party; and

(c) an employer who is a successor, assignee or transmittee (whether immediate or not) to or of the business or part of the business of a party, including a corporation that has acquired or taken over the business or part of the business of the party.

(5) In subsection (4):

“party”, in relation to a certified agreement, does not include:

(a) a party in relation to whom a declaration has been made under subsection 117 (6); or

(b) a party who is no longer bound by the certified agreement because of a declaration made by the Commission under subsection 117 (9).

Certified agreements may be varied, set aside, terminated etc.

117. (1) At any time while a certified agreement is in force, the Minister may apply to the President for a review by a Full Bench of the operation of the agreement.


(2) Where an application is made to the President under subsection (1), the President shall establish a Full Bench to hear and determine the application.

(3) If the Full Bench finds that the continued operation of the certified agreement is contrary to the public interest, the Full Bench may, by order, set aside or vary the agreement.

(4) The Full Bench shall not set aside or vary the certified agreement under subsection (3) without giving the parties to the agreement an opportunity to be heard.

(5) Where a party to a certified agreement engages in industrial action in relation to a matter dealt with in the agreement, another party who is affected by the industrial action may apply to the Commission for a declaration that the party is no longer bound by the agreement.

(6) The Commission may, on application under subsection (5) by a party to a certified agreement, by order, declare that the party is no longer bound by the agreement if the Commission is satisfied that the making of the declaration is in the public interest.

(7) A party to a certified agreement may, with the consent of all the relevant parties, give the Commission written notice stating that the party does not want to remain bound by the agreement.

(8) All the parties to a certified agreement may jointly give the Commission written notice stating that they want the agreement to be terminated.

(9) Where a notice is given to the Commission under subsection (7) or (8), the Commission may, if it is satisfied that it would be in the public interest for the party to be no longer bound or for the certified agreement to be terminated, as the case may be, by order, make a declaration to that effect.

(10) In this section:

“relevant party”, in relation to a certified agreement, means:

(a) in relation to a party to the agreement that is an employer or an organisation of employers—a party that is an organisation of employees; or

(b) in relation to a party to the agreement that is an organisation of employees—a party that is an employer or an organisation of employers.

Demarcation disputes

118. (1) The powers of the Commission in relation to demarcation disputes are exercisable only by a Presidential Member or a Full Bench.

(2) The Commission may seek advice from an appropriate peak council about the timing of the exercise of any of the Commission’s powers in relation to a demarcation dispute.


(3) Without limiting the powers of the Commission in relation to demarcation disputes, the Commission may, for the purpose of preventing or settling a demarcation dispute, but subject to subsection 202 (3), make one or more of the following orders:

(a) an order that an organisation of employees shall have the right, to the exclusion of another organisation or organisations, to represent under this Act the industrial interests of a particular class or group of employees who are eligible for membership of the organisation;

(b) an order that an organisation of employees that does not have the right to represent under this Act the industrial interests of a particular class or group of employees shall have that right;

(c) an order that an organisation of employees shall not have the right to represent under this Act the industrial interests of a particular class or group of employees who are eligible for membership of the organisation.

(4) In considering whether to make an order under subsection (3), the Commission shall have regard to any agreement of which the Commission becomes aware that deals with the right of an organisation of employees to represent under this Act the industrial interests of a particular class or group of employees.

(5) An order made under subsection (3) may be of general application or expressed to be subject to specified conditions or limitations.

(6) Where the Commission makes an order in relation to a demarcation dispute it shall, unless satisfied that no alteration of the rules of any organisation concerned is necessary, refer the matter to a designated Presidential Member.

(7) Where a matter is referred to a Presidential Member under subsection (6), the Presidential Member shall, after giving each organisation concerned an opportunity, as prescribed, to be heard, determine such alterations (if any) of the rules of any organisation concerned as are, in the Presidential Member’s opinion, necessary to reflect the order of the Commission.

(8) An alteration of the rules of an organisation determined under subsection (7) takes effect on the day on which the determination is made.

Compulsory conferences

119. (1) For the purpose of the performance of a function, or the exercise of a power, of the Commission in relation to an industrial dispute, a member of the Commission may, of the member’s own motion or on application made by a party to, or intervener in, the industrial dispute, direct a person to attend, at a specified time and place, a conference to be presided over by a member of the Commission or another person nominated by the President.


(2) A direction may be given to any person whose presence at the conference the member of the Commission considers would help in the prevention or settlement of the industrial dispute.

(3) In determining the persons to whom directions are to be given, the member of the Commission shall have regard to the persons having the highest degree of authority to negotiate, for the prevention or settlement of the industrial dispute, on behalf of the parties to the industrial dispute.

(4) A direction may be given orally or by signed instrument by, or by telegraph, telex, facsimile service or other similar means of communication from:

(a) a member of the Commission; or

(b) a Registrar at the request of a member of the Commission.

(5) The conference shall be held in private except to the extent that the person presiding over the conference directs that it be held in public.

Relief not limited to claim

120. In making an award or order, the Commission is not restricted to the specific relief claimed by the parties to the industrial dispute concerned, or to the demands made by the parties in the course of the industrial dispute, but may include in the award or order anything which the Commission considers necessary or expedient for the purpose of preventing or settling the industrial dispute or preventing further industrial disputes.

Power to override certain laws affecting public sector employment

121. (1) In relation to an industrial dispute involving public sector employment, the Commission may, where it considers it proper to do so, make an award or order that is not, or in its opinion may not be, consistent with a relevant law of the Commonwealth or of an internal Territory.

(2) In this section:

“enactment” means an ordinance made under the Northern Territory (Administration) Act 1910 and continued in force by the Northern Territory (Self- Government) Act 1978;

“relevant law” means a law of the Commonwealth or an internal Territory relating to matters pertaining to the relationship between employers and employees in public sector employment, other than:

(a) the Commonwealth Employees’ Rehabilitation and Compensation Act 1988, the Long Service Leave (Commonwealth Employees) Act 1976 or the Superannuation Act 1976; or

(b) a prescribed Act or enactment, or prescribed provisions of an Act or enactment.

Power to grant preference to members of organisations

122. (1) The Commission may, by an award, or by an order made on the application of an organisation or person bound by an award, direct that preference shall be given, in relation to particular matters, in such manner


and subject to such conditions as are specified in the award or order, to particular organisations or members of organisations.

(2) Whenever, in the opinion of the Commission, it is necessary:

(a) for the prevention or settlement of an industrial dispute;

(b) for ensuring that effect will be given to the purposes and objectives of an award;

(c) for the maintenance of industrial peace; or

(d) for the welfare of society;

to direct that preference shall be given to members of organisations as provided by subsection (1), the Commission shall give the direction.

(3) Where the Commission has, under subsection (1), directed, by an award or order, that preference shall be given to members of an organisation of employees, an employer bound by the award or order is not required, because of the award or order, to give preference to members of the organisation over a person in relation to whom a certificate under section 267 is in force.

Power to provide special rates of wages

123. Where the Commission, by an award, prescribes a minimum rate of wages, the Commission may also provide:

(a) for the payment of wages at a lower rate to employees who are unable to earn a wage at the minimum rate; and

(b) that the lower rate shall not be paid to an employee unless a particular person or authority has certified that the employee is unable to earn a wage at the minimum rate.

Limitation on powers of Commission relating to payments in relation to periods of industrial action

124. (1) Subject to this section, the Commission is not empowered to deal with a claim for the making of a payment to employees in relation to a period, whether before or after the making of the claim, or before or after the commencement of this section, during which those employees engaged, or engage, in industrial action.

(2) Subsection (1) does not prevent the Commission dealing with a claim for the making of a payment to employees in relation to a period before the making of the claim but after the commencement of this section during which those employees were engaged in industrial action where the Commission is satisfied that the industrial action was justified by a concern on the part of the employees:

(a) that was reasonable;

(b) that was about their health or safety; and

(c) that arose in relation to matters within the reasonable responsibility of the employer concerned.


(3) Where the Commission is satisfied as to the matter mentioned in subsection (2) in relation to some, but not all, of the employees, the Commission is only empowered to deal with so much of the claim as relates to the employees in relation to whom the Commission is satisfied.

Power to include bans clauses

125. The power of the Commission:

(a) to include a bans clause in an award; or

(b) to omit or vary a bans clause;

is exercisable only by a Presidential Member or a Full Bench.

Stand-down applications

126. (1) Where an employer or organisation bound by an award makes an application (in this section called the “stand-down application”) to the Commission for the award to be varied by the insertion or variation of a term (however expressed) that authorises an employer to stand-down an employee in particular circumstances, the Commission shall hear and determine the application as quickly as is appropriate having regard to all the circumstances.

(2) The employer or organisation who makes a stand-down application may, when the stand-down application is made or at any later time before the stand-down application is determined, apply to the President for the stand-down application to be heard and determined by a Full Bench.

(3) Where an application is made to the President under subsection (2), the President shall establish a Full Bench to hear and determine the stand-down application.

(4) Where:

(a) a stand-down application has been partly heard by the Commission constituted otherwise than as a Full Bench; and

(b) the President establishes a Full Bench for the purpose of hearing the stand-down application;

the Full Bench may, in the hearing, have regard to any evidence given, and any arguments adduced, in the proceeding before the Commission constituted otherwise than as a Full Bench.

(5) Where industrial action is threatened, impending or probable, the Commission may exercise its power under subsection (1) by including in an award a provision authorising an employer to stand-down employees who engage in the industrial action.

(6) Subsection (5) shall not be taken to limit any other power of the Commission.


Orders in relation to industrial action involving public sector employment

127. (1) Where it appears to the Commission that industrial action by persons engaged in public sector employment is happening, or is threatened, impending or probable, in relation to an industrial dispute, the Commission may:

(a) make such orders as it considers necessary or desirable:

(i) to stop or prevent the industrial action; or

(ii) to prevent further industrial action; and

(b) make such other orders as it considers necessary or desirable because of the industrial action.

(2) The powers conferred on the Commission by subsection (1) are in addition to, and not in derogation of, the powers conferred on the Commission by the rest of this Act.

State authorities may be restrained from dealing with disputes

128. (1) If it appears to a Full Bench that a State industrial authority is dealing or is about to deal with:

(a) an industrial dispute;

(b) a matter provided for in an award or an order of the Commission; or

(c) a matter that is the subject of a proceeding before the Commission;

the Commission may make an order restraining the State industrial authority from dealing with the industrial dispute or matter.

(2) The State industrial authority shall, in accordance with the order, cease dealing or not deal, as the case may be, with the industrial dispute or matter.

(3) An order, award, decision or determination of the State industrial authority made in contravention of the order of the Full Bench is, to the extent of the contravention, void.

Joint sessions of Commission

129. Where:

(a) the President considers that a question is common to 2 or more proceedings before the Commission; and

(b) the Commission is not constituted by the same person or persons for the purposes of each proceeding;

the President may direct that the Commission constituted by all the persons who constitute the Commission for the purposes of the proceedings may take evidence or hear argument, or take evidence and hear argument, as to the question for the purposes of both or all of the proceedings.


Reference of industrial dispute to local industrial board for report

130. (1) The Commission may refer an industrial dispute to a local industrial board for investigation and report, and may at any time revoke the reference.

(2) On the report of the local industrial board, the Commission may, with or without hearing further evidence or argument, determine the dispute and make an award or order.

(3) In this section:

“local industrial board” means:

(a) a State industrial authority willing to act; or

(b) a body constituted as prescribed, or as directed by the Commission, and consisting of:

(i) a convenor; and

(ii) equal numbers of representatives of employers and representatives of employees;

appointed by the Commission.

Boards of reference

131. (1) The Commission may, by an award, or an order made on the application of an organisation or person bound by an award:

(a) appoint, or give power to appoint, for the purposes of the award, a board of reference consisting of a person or 2 or more persons; and

(b) assign to the board of reference the function of allowing, approving, fixing, determining or dealing with, in the manner and subject to the conditions specified in the award or order, a matter or thing that, under the award, may from time to time be required to be allowed, approved, fixed, determined or dealt with.

(2) The board of reference may consist of or include a Commissioner.

Discussions about conciliation and arbitration processes

132. The Commission may invite the parties to an industrial dispute in relation to which an award or order has been made to take part in discussions about the industrial dispute, with a view to improving the processes of conciliation and arbitration.

Industry consultative councils

133. (1) Where a Presidential Member who is a member of a panel is invited by participants in an industry allocated to the panel to assist in the operations of a consultative council for the industry, the Presidential Member may, if the President consents:

(a) chair meetings of the council;

(b) take part in the discussions of the council; or

(c) nominate another member of the panel to chair meetings of the body or to take part in the discussions of the council.


(2) The President shall not consent unless the President is satisfied that the consultative council is properly representative of organisations and associations of employers and organisations of employees in the industry.

Power of inspection

134. (1) A member of the Commission, or an authorised person, may at any time during working hours:

(a) enter prescribed premises;

(b) inspect or view any work, material, machinery, appliance, article, document or other thing on the prescribed premises; and

(c) interview, on the prescribed premises, any employee who is usually engaged in work on the prescribed premises.

(2) A member of the Commission may exercise powers under subsection (1) only for the purpose of, or in relation to, the exercise of another power, or the performance of a function, conferred by this Act.

(3) A member of the Commission, or a Registrar, may, in writing, for the purpose of, or in relation to, the exercise of another power, or the performance of a function, conferred on the Commission by this Act, authorise another person to exercise powers under subsection (1).

(4) An authorised person may exercise powers under subsection (1) only to the extent and for the purposes specified in the authority.

(5) In this section:

“authorised person” means a person authorised under subsection (3);

“prescribed premises” means premises on which or in relation to which:

(a) an industry is carried on;

(b) work is being or has been done or commenced;

(c) a matter or thing is taking or has taken place in relation to which an industrial dispute is pending;

(d) a matter or thing is taking or has taken place under, or in connection with, an application or order made under section 135 or 136;

(e) documents are kept that contain information relevant to an application, or to the operation of an order, made under section 135 or 136; or

(f) an award or an order of the Commission has been made.

Division 4Ballots ordered by Commission

Commission may order secret ballot

135. (1) Where:

(a) an organisation is concerned in an industrial dispute with which the Commission or another tribunal acting under a law of the Commonwealth is empowered to deal (whether or not proceedings


in relation to the dispute are before the Commission or other tribunal); and

(b) the Commission considers that the prevention or settlement of the industrial dispute might be helped by finding out the attitudes of the members, or the members of a section or class of the members, of the organisation or a branch of the organisation in relation to a matter;

the Commission may order that a vote of the members be taken by secret ballot (with or without provision for absent voting), in accordance with directions given by the Commission, for the purpose of finding out their attitudes to the matter.

(2) Where it appears to the Commission:

(a) that industrial action is being taken or the taking of industrial action is threatened, impending or probable; and

(b) that finding out the attitudes of the members, or the members of a section or class of the members, of the organisation concerned or a branch of the organisation, in relation to the matter, might help to stop or prevent the industrial action, or might help the settlement of the matters giving rise to the industrial action;

the Commission may order that a vote of the members be taken by secret ballot (with or without provision for absent voting), in accordance with directions given by the Commission, for the purpose of finding out their attitudes to the matter.

(3) The powers of the Commission to make an order under subsection (1) or (2), and to revoke such an order, are exercisable only by a Presidential Member or a Full Bench.

Application by members of organisation for secret ballot

136. (1) Where:

(a) the members, or the members of a section or class of the members, of an organisation or branch of an organisation are directed or requested by the organisation or branch to engage in industrial action; and

(b) the members directed or requested are, or include, members (in this section called the “relevant affected members”) who are employed by a particular employer at a particular place of work;

application may be made to the Commission, by at least the prescribed number of relevant affected members, for an order under subsection (2).

(2) Subject to this section, the Commission shall order that a vote of the relevant affected members be taken by secret ballot (with or without provision for absent voting), in accordance with directions given by the Commission, for the purpose of finding out whether or not those members support the industrial action.


(3) If the Commission considers that the application should be refused because:

(a) finding out the attitudes of the relevant affected members would not help:

(i) to stop or prevent the industrial action; or

(ii) to settle the matters giving rise to the industrial action;

(b) the industrial action has stopped or is about to stop; or

(c) the industrial action is not likely to happen;

the Commission shall:

(d) if the Commission is constituted by the President or a Full Bench—refuse the application; or

(e) if the Commission is not constituted by the President or a Full Bench—refer the application to the President.

(4) If the application is referred to the President, the Commission constituted by the President shall deal with the application.

(5) The powers of the Commission to make an order under subsection (2), and to revoke an order under that subsection, are exercisable only by a Presidential Member or a Full Bench.

(6) Where 2 or more applications are made to the Commission under subsection (1) in relation to a particular place of work of a group of employees of a particular employer, the President may assign the applications to one Presidential Member or a Full Bench.

(7) Where, in considering an application under subsection (1), it appears to the Commission that, in all the circumstances, it would be appropriate to make an order for a secret ballot under subsection 135 (1) or (2) rather than under subsection (2) of this section, the Commission may act accordingly.

(8) Where:

(a) the Commission has made an order for a secret ballot under subsection (2) of this section or under subsection 135 (1) or (2); and

(b) before the vote is taken, the Commission forms the view that the secret ballot should not be proceeded with because:

(i) the industrial dispute has been, or is about to be, settled; or

(ii) the industrial action has stopped, is about to stop or is not likely to happen;

the Commission shall revoke the order.

(9) For the purposes of this section, a direction or request to members of an organisation or branch of an organisation that is given or made by or on behalf of:

(a) the committee of management of the organisation or branch;

(b) an officer, employee or agent of the organisation or branch acting in that capacity;


(c) a member or group of members of the organisation or branch authorised to give the direction or request by:

(i) the rules of the organisation or branch;

(ii) the committee of management of the organisation or branch; or

(iii) an officer, employee or agent of the organisation or branch acting in that capacity; or

(d) a member of the organisation or branch, who performs the function of dealing with an employer on behalf of the member and other members of the organisation or branch, acting in that capacity;

shall be taken to be a direction or request by the organisation or branch, as the case may be.

(10) In this section:

“place of work”, in relation to a group of employees of an employer, includes any place at which the employees included in the group are required to report (whether in person, by telephone or by any other form of communication) for the purpose of being allocated work by the employer or for any other purpose connected with the carrying on of the business of the employer;

“prescribed number”, in relation to members of an organisation or branch of an organisation employed by a particular employer at a particular place of work, means:

(a) if there are less than 80 members of the organisation employed by the employer at the place of work—4;

(b) if there are not less than 80, but not more than 5,000, members of the organisation or branch employed by the employer at the place of work—5% of the number of members so employed; or

(c) if there are more than 5,000 members of the organisation or branch employed by the employer at the place of work—250.

Scope of directions for secret ballots

137. (1) Directions given by the Commission under subsection 135 (1) or (2) or 136 (2) shall provide for all matters relating to the ballot concerned, including the following matters:

(a) the questions to be put to the vote;

(b) the eligibility of persons to vote;

(c) the conduct of the ballot generally.

(2) Before giving a direction relating to the conduct of the ballot, the Commission shall consult with the Industrial Registrar or, if the ballot is to be conducted by the Australian Electoral Commission, with the Electoral Commissioner.


Conduct of ballot

138. (1) Where, under section 135 or 136, the Commission orders the holding of a secret ballot, the Commission shall, by order:

(a) direct the organisation concerned to make arrangements for the conduct of the ballot by a person approved by the Industrial Registrar; or

(b) direct the Industrial Registrar to make arrangements for the conduct of the ballot;

and may give any further directions that it considers necessary for ensuring the secrecy of votes and otherwise for the purposes of the conduct of the ballot or the communication of the result to the Commission.

(2) A direction shall not be given under paragraph (1) (a) if the order for the holding of the secret ballot concerned was made under subsection 136 (2).

(3) Where a direction is given under paragraph (1) (a), the Commonwealth is liable to pay to the organisation the reasonable costs of the conduct of the ballot concerned as assessed by a Registrar.

(4) Where a direction is given under paragraph (1) (b), the Industrial Registrar shall conduct the ballot concerned, or make arrangements for its conduct, in accordance with the direction.

(5) Where the result of a ballot conducted under an order under section 135 or 136 is communicated to the Commission, the Commission shall cause the Industrial Registrar to inform each of the following persons, by written notice, of the result:

(a) the persons who were eligible to vote in the ballot;

(b) the organisation to which those persons belonged, and the employers by whom those persons were employed, when those persons became eligible to vote in the ballot.

(6) Where the Commission forms the view that the results of a ballot conducted under an order under subsection 136 (2) show that the majority of the members of an organisation, or a branch of an organisation, who recorded a valid vote in the ballot were not in favour of engaging in the industrial action concerned, the Commission shall cause the Industrial Registrar to include in each notice issued under subsection (5) in relation to the ballot a statement of the view formed by the Commission.

Commission to have regard to result of ballot

139. In any conciliation or arbitration proceeding before the Commission in relation to a matter in relation to which the attitudes of persons have been expressed in a ballot conducted under an order under section 135 or 136, the Commission shall have regard to the result of the ballot.


Certain members not required to obey directions of organisation

140. (1) Where a notice under subsection 138 (5) in relation to a ballot that is issued to a member of an organisation, or a branch of an organisation, includes a statement that the Commission has formed the view that the results of the ballot show that the majority of the members of the organisation or branch who recorded a valid vote in the ballot were not in favour of engaging in the industrial action concerned, then, in spite of any rule or practice of the organisation or the branch, the member is not required to obey any direction or request given or made by the organisation or branch in relation to engaging in, or supporting in any way, the industrial action.

(2) For the purposes of subsection (1), a direction or request to members of an organisation or branch of an organisation that is given or made by or on behalf of:

(a) the committee of management of the organisation or branch;

(b) an officer, employee or agent of the organisation or branch acting in that capacity;

(c) a member or group of members of the organisation or branch authorised to give the direction or request by:

(i) the rules of the organisation or branch;

(ii) the committee of management of the organisation or branch; or

(iii) an officer, employee or agent of the organisation or branch acting in that capacity; or

(d) a member of the organisation or branch, who performs the function of dealing with an employer on behalf of the member and other members of the organisation or branch, acting in that capacity;

shall be taken to be a direction or request by the organisation or branch, as the case may be.

Division 5Common rules

Common rules

141. (1) Where the Commission is dealing or has dealt with an industrial dispute, the Commission may, if it appears to be necessary or expedient for the purpose of:

(a) preventing or settling the industrial dispute; or

(b) preventing further industrial disputes;

declare that any term of an award shall, subject to such conditions, exceptions and limitations as are specified in the declaration, be a common rule in a Territory for an industry in relation to which the industrial dispute arose.

(2) Where the Commission is dealing or has dealt with an industrial dispute involving public sector employment, the Commission may, if it appears to be necessary or expedient for the purpose of:

(a) preventing or settling the industrial dispute; or

(b) preventing further industrial disputes;


declare that any term of an award shall, subject to such conditions, exceptions and limitations as are specified in the declaration, be a common rule for the whole or a specified class of public sector employment.

(3) The declaration of a common rule under subsection (2) does not have effect in relation to a class of public sector employment prescribed for the purposes of this section.

(4) Before a common rule is declared under subsection (1) or (2), the Commission shall:

(a) publish, as prescribed, a notice:

(i) specifying the matter in relation to which it is proposed to declare a common rule; and

(ii) inviting any organisation or person interested and wanting to be heard to appear before the Commission as specified in the notice; and

(b) hear all interested organisations and persons appearing.

Variation of common rules

142. (1) Subject to this section, where the Commission varies a term of an award that is a common rule in a Territory for an industry, the variation is, by force of this subsection, a common rule in the Territory for the industry with effect from the date of effect of the variation.

(2) Subject to this section, where the Commission varies a term of an award that is a common rule for the whole or a class of public sector employment, the variation is, by force of this subsection, a common rule for the whole or that class of public sector employment (other than any class of public sector employment prescribed under subsection 141 (3)) with effect from the date of effect of the variation.

(3) Before the Commission varies a term of a kind referred to in subsection (1) or (2), a Registrar shall, as prescribed, give notice of the place where, and the time when, it is proposed to hear the matter involving the term.

(4) Where the Commission varies a term of a kind referred to in subsection (1) or (2), a Registrar shall immediately publish, as prescribed, a notice inviting any organisation or person interested and wanting to be heard to lodge notice of objection to the variation binding the organisation or person.

(5) If a notice of objection in relation to a variation is lodged by an organisation or person under subsection (4), the Commission shall hear the objection and may declare that the variation is not binding on the organisation or person.

(6) Where the Commission makes a declaration under subsection (5), a Registrar shall give notice of the declaration as prescribed.

(7) A variation that is a common rule under this section:


(a) is not enforceable before the end of 28 days after the date of effect of the variation; and

(b) if a notice of objection in relation to the variation is lodged by an organisation or person under subsection (4)—is not enforceable against the organisation or person before the hearing of the objection is finally disposed of.

Division 6Awards of Commission

Making and publication of awards etc.

143. (1) Where the Commission makes a decision or determination that, in the Commission’s opinion, is an award or an order affecting an award, the Commission shall promptly:

(a) reduce the decision or determination to writing that:

(i) expresses it to be an award;

(ii) is signed by at least one member of the Commission; and

(iii) shows the day on which it is signed; and

(b) give to a Registrar:

(i) a copy of the decision or determination; and

(ii) a list specifying each party who appeared at the hearing of the proceeding concerned.

(2) Where the Commission makes a decision or determination:

(a) that, in the Commission’s opinion, is not an award; but

(b) in relation to which either of the following subparagraphs applies:

(i) the decision or determination is a decision or determination from which an appeal may be made to a Full Bench;

(ii) the decision or determination is, in the Commission’s opinion, otherwise so significant that it should be made available in writing;

the Commission shall promptly:

(c) reduce the decision or determination to writing that:

(i) is signed by at least one member of the Commission; and

(ii) shows the day on which it is signed; and

(d) give to a Registrar:

(i) a copy of the decision or determination; and

(ii) a list specifying each party who appeared at the hearing of the proceeding concerned.

(3) A Registrar who receives a copy of a decision or determination under subsection (1) or (2) shall promptly:

(a) provide a copy of:

(i) the decision or determination; and

(ii) any written reasons received by the Registrar for the decision or determination;


to each party shown on the list given to the Registrar under paragraph (1) (b) or (2) (d); and

(b) ensure that copies of the decision or determination, and of any reasons referred to in paragraph (a), are available for inspection at each registry.

(4) The Industrial Registrar shall ensure that all decisions and determinations of the Commission referred to in subsections (1) and (2), and any reasons referred to in paragraph (3) (a), are published as soon as practicable.

(5) If a member of the Commission ceases to be a member after a decision or determination has been made by the Commission constituted by the member but before the decision or determination has been reduced to writing or before it has been signed by the member, a Registrar shall reduce the decision or determination to writing, sign it and seal it with the seal of the Commission, and the decision or determination has effect as if it had been signed by the member of the Commission.

Form of awards

144. An award shall be framed so as best to express the decision of the Commission and to avoid unnecessary technicalities.

Date of awards

145. The date of an award shall be:

(a) if the award is a certified agreement—the day on which the agreement was certified under section 115; or

(b) in any other case—the day on which the award was signed under subsection 143 (1).

Commencement of awards

146. (1) An award shall be expressed to come into force on a specified day.

(2) Unless the Commission is satisfied that there are exceptional circumstances, the day specified in an award for the purposes of subsection (1) shall not be earlier than the date of the award.

Term of awards

147. (1) An award shall specify the period for which the award is to continue in force.

(2) In determining the period to be specified under subsection (1), the Commission shall have regard to:

(a) the wishes of the parties to the industrial dispute concerned as to the period for which the award should continue in force; and

(b) the desirability of stability in industrial relations.


Continuation of awards

148. (1) Subject to section 113 and any order of the Commission, an award dealing with particular matters continues in force until a new award is made dealing with the same matters.

(2) The inclusion in an award of a provision relating to:

(a) long service leave with pay;

(b) sick leave with pay; or

(c) superannuation benefits;

is not prevented merely because the provision is so expressed as not to be capable of operating, or of operating fully, during the period specified in the award as the period for which the award is to continue in force.

(3) Where, under subsection (1), an award has continued in force after the end of the period specified in the award as the period for which the award is to continue in force, an award made by the Commission for the settlement of a further industrial dispute between the parties may be expressed to operate from a day not earlier than the day on which the industrial dispute arose.

Persons bound by awards

149. Subject to any order of the Commission, an award determining an industrial dispute is binding on:

(a) all parties to the industrial dispute who appeared or were represented before the Commission;

(b) all parties to the industrial dispute who were summoned or notified (either personally or as prescribed) to appear as parties to the industrial dispute (whether or not they appeared);

(c) all parties who, having been notified (either personally or as prescribed) of the industrial dispute and of the fact that they were alleged to be parties to the industrial dispute, did not, within the time prescribed, satisfy the Commission that they were not parties to the industrial dispute;

(d) any successor, assignee or transmittee (whether immediate or not) to or of the business or part of the business of an employer who was a party to the industrial dispute, including a corporation that has acquired or taken over the business or part of the business of the employer;

(e) all organisations and persons on whom the award is binding as a common rule; and

(f) all members of organisations bound by the award.

Awards of Commission are final

150. (1) Subject to this Act, an award (including an award made on appeal):

(a) is final and conclusive;


(b) shall not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c) is not subject to prohibition, mandamus or injunction in any court on any account.

(2) An award is not invalid because it was made by the Commission constituted otherwise than as provided by this Act.

Registrar to review operation of awards

151. (1) Where a Registrar is of the opinion that an award that is in force might not have any continuing operation, or any substantial continuing operation, the Registrar shall draw the award to the attention of:

(a) the parties to the award; and

(b) a member of the panel to which the industry concerned has been assigned or, if the industry concerned has not been assigned to a panel, the President.

(2) Where an award is drawn to the attention of a member of the Commission under subsection (1), the member shall invite the parties to the award to take part in discussions about the award with a view to:

(a) cancelling the award; and

(b) if necessary, varying another appropriate award to include any operative provisions of the cancelled award in the other award.

(3) The Industrial Registrar shall ensure that each award in force is examined by a Registrar for the purposes of this section not later than 5 years after the award was made or was last examined by a Registrar for those purposes.

(4) The Industrial Registrar shall cause each award in force immediately before the commencement of this section to be examined by a Registrar for the purposes of this section at least once during the period of 5 years after the commencement.

Awards to prevail over State laws, awards etc.

152. Where a State law, or an order, award, decision or determination of a State industrial authority, is inconsistent with, or deals with a matter dealt with in, an award, the latter prevails and the former, to the extent of the inconsistency or in relation to the matter dealt with, is invalid.

Validity of State orders, awards etc.

153. (1) A person interested may apply to the Court for a declaration that a State law dealing with an industrial matter, or an order, award, decision or determination of a State industrial authority, is invalid under section 152.

(2) The applicant shall give 14 days’ notice of the application to the Attorney-General of the State concerned, who shall have the right to appear on the hearing of the application.


(3) The Court shall hear and determine the application and make such declaration as it considers appropriate.

Reprints of awards as varied

154. A document purporting to be a copy of a reprint of an award as varied, and purporting to have been printed by the Government Printer, is in all courts evidence of the award as varied.

Expressions used in awards

155. Unless the contrary intention appears in an award, an expression used in the award has the same meaning as it has in an Act by virtue of the Acts Interpretation Act 1901 or as it has in this Act.

Division 7Disputes relating to boycotts

Application of Division

156. This Division applies in relation to a dispute:

(a) that relates to a boycott or a threatened, impending or probable boycott; and

(b) in relation to which either of the following subparagraphs applies:

(i) the dispute relates, or may relate, to work done or to be done under an award;

(ii) the dispute involves an organisation of employees or a member or officer of such an organisation.

Notification of disputes

157. (1) Where a person applies to the Court under section 80 of the Trade Practices Act for an injunction restraining another person from engaging in boycott conduct in relation to which there is a dispute in relation to which this Division applies, either person may notify the President or a Registrar of the dispute.

(2) The Minister may notify the President or a Registrar of a dispute in relation to which this Division applies or may apply.

(3) Where a dispute is notified to a Registrar under this section, the Registrar shall inform the President.

Powers of Commission

158. (1) Subject to subsection (2), where:

(a) a person notifies the President or a Registrar under subsection 157 (1) of a dispute in relation to which this Division applies;

(b) the Minister notifies the President or a Registrar under subsection 157 (2) of a dispute in relation to which this Division applies or may apply; or

(c) the President otherwise becomes aware of a dispute in relation to which this Division applies;

the Commission is empowered to settle the dispute by conciliation.


(2) If:

(a) the dispute relates to a boycott, or a threatened, impending or probable boycott, in relation to which there are proceedings pending before the Court; and

(b) the Minister administering Part IV of the Trade Practices Act, or the Trade Practices Commission, is a party to the proceedings;

the Commission is not empowered to settle the dispute under subsection (1) unless that Minister or the Trade Practices Commission, as the case may be, consents, by written notice given to the Commission, to the Commission exercising its powers under that subsection in relation to the dispute.

Exercise of powers

159. Where the Commission is empowered under subsection 158 (1) to settle by conciliation a dispute in relation to which this Division applies, the President shall refer it to a Presidential Member for conciliation.

Parties

160. (1) The parties to a proceeding before the Commission in relation to a dispute in relation to which this Division applies are:

(a) any organisation of employees in relation to the employment of any of whose members the dispute has arisen;

(b) employers of such employees;

(c) organisations of which any such employers are members;

(d) if the dispute relates to conduct in relation to the supply of goods or services to, or the acquisition of goods or services from, a person (in subsection (2) called an “affected person”) and the person is not already a party—that person;

(e) any Minister who notifies the Commission that he or she wishes to become a party; and

(f) such other persons as the Presidential Member concerned, by order, specifies.

(2) A Registrar shall give notice of the proceeding to such persons as the Presidential Member directs and, in any event, to every person who is an affected person and every other person who is a party to the proceeding under paragraph (1) (e) or (f).

(3) Subsection (1) does not affect the operation of sections 43 and 44.

Application of other provisions of Act

161. Subject to this Division, the provisions of this Act relating to an industrial dispute (other than the provisions that relate to arbitration powers or to the making of awards or certifying of agreements) apply in relation to a proceeding before the Commission in relation to a dispute in relation to which this Division applies as if:

(a) a reference to an industrial dispute were a reference to the dispute in relation to which this Division applies;


(b) a reference to the parties to an industrial dispute were a reference to the parties to the proceeding before the Commission; and

(c) any other necessary changes were made.

Trade Practices Act not affected

162. This Division does not affect the operation of the Trade Practices Act.

Interpretation

163. Unless the contrary intention appears, expressions used in or in relation to this Division that are used in the Trade Practices Act have, in this Act, the same respective meanings as those expressions have in the Trade Practices Act.

Division 8Exclusive jurisdiction in relation to certain proceedings

Certain actions not to lie under other laws in relation to boycott conduct

164. An action under a law of a State or Territory does not lie against a trade union, or an officer, member or employee of a trade union, in relation to boycott conduct of the trade union or of the officer, member or employee acting in that capacity.

Certain actions not to lie under other laws in relation to certain industrial action involving public sector employment

165. Where an order under section 127 relates to industrial action by persons engaged in public sector employment falling within paragraph (a) or (b) of the definition of “public sector employment” in subsection 4 (1), an action under a law of a State or Territory does not lie against an organisation, or an officer, member or employee of an organisation, in relation to conduct of the organisation, or of the officer, member or employee acting in that capacity, that is in breach of the order.

Certain actions not to lie under other laws in relation to breaches of bans clauses

166. An action under a law of a State or Territory does not lie against an organisation, or an officer, member or employee of an organisation, in relation to conduct of the organisation, or of the officer, member or employee acting in that capacity, that is in breach of a bans clause of an award.

Division not to apply in relation to certain proceedings

167. This Division does not apply in relation to:

(a) a proceeding for a contravention of an award, order or direction of a State industrial authority; or

(b) a prosecution for an offence.


Division 9Port Conciliators and Co-ordinating Committees

Appointment of Port Conciliators

168. (1) Where there have been included, in an award or order of the Commission in relation to waterside workers, procedures for preventing or settling, by discussion and agreement, disputes between the parties to the award or any of them as to industrial matters, the Commission may appoint persons to be Port Conciliators with the function of assisting the parties to the award to implement the procedures effectively.

(2) Subject to the Remuneration Tribunal Act 1973, a Port Conciliator shall be paid:

(a) such remuneration as is determined by the Remuneration Tribunal; and

(b) such allowances as are prescribed.

(3) The Commission may at any time terminate an appointment made under this section.

(4) Subject to this section, a Port Conciliator holds office on such terms and conditions as the Commission determines.

Federal Ports Co-ordinating Committee

169. (1) There is established by this section a committee by the name of the Federal Ports Co-ordinating Committee.

(2) The Committee shall consist of persons who, except for a member co-opted under subsection (4), shall be appointed:

(a) by a person authorised by the Minister to make appointments for the purpose of this section; and

(b) in accordance with nominations made as prescribed.

(3) A member of the Committee shall hold office as prescribed.

(4) The Committee may, at any meeting, co-opt a person to be a member of the Committee for the purpose of the consideration by the Committee of a particular matter.

(5) A member of the Committee, including a member co-opted under subsection (4), is not entitled to remuneration or allowances.

(6) The function of the Committee is to encourage agreement between waterside workers and waterside employers with a view to ensuring the effective conduct of stevedoring operations in Australia.

Port Co-ordinating Committees

170. (1) The Minister may establish committees, each to be known as a Port Co-ordinating Committee, in relation to ports at which stevedoring operations are conducted.

(2) A Committee shall consist of persons who, except for a member co-opted under subsection (4), shall be appointed:


(a) by a person authorised by the Minister to make appointments for the purpose of this section; and

(b) in accordance with nominations made as prescribed.

(3) A member of a Committee shall hold office as prescribed.

(4) A Committee may, at any meeting, co-opt a person to be a member of the Committee for the purpose of the consideration by the Committee of a particular matter.

(5) A member of a Committee, including a member co-opted under subsection (4), is not entitled to remuneration or allowances.

(6) The function of a Port Co-ordinating Committee established in relation to a port is to assist the Federal Ports Co-ordinating Committee in the performance in relation to the port of the function of the Federal Ports Co-ordinating Committee under subsection 169 (6).

 

PART VII—CO-OPERATION WITH THE STATES

Co-operation with States by President

171. The President shall, with a view to encouraging co-operation between the members of the Commission and the members of State industrial authorities, and the co-ordination of the several industrial relations systems in Australia, invite the heads of State industrial authorities to meet with the President regularly to exchange information and discuss matters of mutual concern.

Co-operation with States by Industrial Registrar

172. The Industrial Registrar shall, with a view to encouraging co-operation between the Registrars and the registrars of State industrial authorities, and the co-ordination of the several industrial relations systems in Australia, invite the principal registrars of State industrial authorities to meet with the Industrial Registrar regularly to exchange information and discuss matters of mutual concern.

Member of Commission may exercise powers under prescribed State laws

173. (1) Where, under a prescribed law of a State, the head of a State industrial authority of that State requests the President to nominate a member of the Commission to deal with:

(a) a particular dispute or claim with which the State industrial authority is empowered to deal; or

(b) a particular threatened dispute or claim with which the State industrial authority would be empowered to deal;

the President may nominate a member of the Commission to deal with the dispute or claim.

(2) Where, under a request made under a prescribed law of a State, a member of the Commission is nominated by the President under subsection


(1) to deal with a particular dispute or claim, the member may exercise such powers and shall perform such functions, for the purpose of dealing with the dispute or claim, as are, by the prescribed law, conferred on a member of the Commission who is so nominated.

(3) A determination made by a member of the Commission in the exercise of powers or the performance of functions mentioned in subsection (2):

(a) shall, for the purposes of this Act, be taken not to have been made by a member of the Commission under this Act; and

(b) shall, for the purposes of sections 152 and 153, be taken to be a decision or determination of a State industrial authority.

Reference of dispute to State authority for determination

174. (1) The President may refer an industrial dispute to a State authority to be investigated and dealt with under this Act:

(a) by conciliation;

(b) by arbitration; or

(c) by conciliation and, if necessary, by arbitration.

(2) The President may revoke the reference at any time before a determination is made by the State authority in settlement of the industrial dispute.

(3) The President may, in relation to the exercise of powers under subsection (1) or (2), direct a member of the Commission to provide a report in relation to a specified matter.

(4) The member shall, after making such investigation (if any) as is necessary, provide the report to the President.

(5) For the purposes of investigating and dealing with the industrial dispute, the State authority may exercise any powers of the Commission under this Act that are exercisable by a Commissioner.

(6) A determination made by the State authority in settlement of the industrial dispute:

(a) shall, for the purposes of this Act (other than section 109), be taken to be an award made under this Act by a member of the Commission, but section 45 applies in relation to the determination as if paragraph 45 (7) (c) were omitted; and

(b) shall, for the purposes of sections 152 and 153, be taken not to be an order, award, decision or determination of a State industrial authority.

(7) Section 149 applies in relation to a determination made by the State authority in settlement of the industrial dispute as if a reference to the Commission were a reference to the State authority.

(8) Sections 299, 302, 303, 354 and 355 apply in relation to the exercise of powers under this section by the State authority as if a reference to:


(a) a member of the Commission; or

(b) the Commission;

were a reference to the State authority, and as if the State authority exercised those powers as a member of the Commission.

(9) The State authority has, in the exercise of powers under this section, the same protection and immunity as, under section 41, a member of the Commission has in the performance of functions as a member of the Commission.

(10) In this section:

“State authority” means a member of a State industrial authority nominated by the head of the State industrial authority or, if another office is prescribed in relation to the State industrial authority, the holder of the office.

Joint proceedings

175. (1) Where a member of the Commission proposes to exercise powers of the Commission that are exercisable by the member in relation to an industrial dispute (other than powers conferred by section 107), the member:

(a) if the President directs that this section applies in relation to the exercise of the powers in relation to the dispute—shall exercise the powers; and

(b) in any other case—may exercise the powers;

in the presence of a prescribed State industrial authority and:

(c) the parties to a particular dispute in relation to which the authority is exercising powers; or

(d) witnesses summoned by the authority in relation to the particular dispute.

(2) Without limiting paragraph 110 (2) (b), where under subsection (1) a member of the Commission is exercising powers in relation to an industrial dispute in the presence of a prescribed State industrial authority, the member may have regard to evidence given to the authority in the presence of the member and the parties to the industrial dispute.

(3) The President may, in relation to the exercise of powers under subsection (1), direct a member of the Commission to provide a report in relation to a specified matter.

(4) The member shall, after making such investigation (if any) as is necessary, provide the report to the President.

(5) This section does not prevent a member of the Commission from exercising powers in relation to an industrial dispute in the presence of a person other than the prescribed State industrial authority or a person referred to in paragraph (1) (c) or (d).


Conference with State authorities

176. (1) Where it appears to the President to be desirable that a conference should be held with a State industrial authority, the President may, if the State industrial authority is willing, confer with the State industrial authority, or arrange for a Deputy President to confer with the State industrial authority, with a view to securing co-ordination between any awards or orders made or to be made under this Act and any orders, awards, decisions or determinations made or given or to be made or given by the State industrial authority.

(2) The President may confer with a State industrial authority in relation to the exercise, or the proposed exercise, under section 175 of powers by a member of the Commission.

Industrial matters affecting the oil industry in New South Wales

177. (1) In this section:

“oil industry industrial matter” means an industrial matter pertaining to the relationship between a prescribed employer and prescribed employees of the prescribed employer;

“prescribed employee” means an employee who:

(a) is, or is eligible to become, a member of the oil industry branch of the industrial union registered under the Industrial Arbitration Act, 1940 of New South Wales as the Australian Workers Union; and

(b) is employed by a prescribed employer;

“prescribed employer” means:

(a) Australian Lubricating Oil Refinery Limited; or

(b) Caltex Refining Co. Pty. Limited.

(2) This Act (other than this section) does not apply in relation to the relationship between a prescribed employer and prescribed employees of the prescribed employer and, in particular:

(a) does not apply in relation to an oil industry industrial matter;

(b) does not apply in relation to an industrial dispute so far as the industrial dispute is a dispute, or a situation that is likely to give rise to a dispute, as to an oil industry industrial matter; and

(c) does not apply in relation to industrial action so far as the industrial action relates to, or affects, the relationship between a prescribed employer and prescribed employees of the prescribed employer.

(3) It is hereby declared to be the intention of the Parliament that this Act shall not exclude the concurrent operation of a prescribed Act of New South Wales so far as that Act makes provision in relation to oil industry industrial matters.

(4) The President may, from time to time, designate a Presidential Member for the purposes of this section.


(5) A Presidential Member designated under subsection (4) shall perform any functions or duties, and may exercise any powers, that are conferred or expressed to be conferred on a Presidential Member by a prescribed Act of New South Wales.

 

PART VIII—COMPLIANCE

Division 1Penalties for contravention of awards and orders

Imposition and recovery of penalties

178. (1) Subject to section 182, where an organisation or person bound by an award or an order of the Commission breaches a term of the award or order, a penalty may be imposed by the Court or, except in the case of a breach of a bans clause, by a court of competent jurisdiction.

(2) Subject to subsection (3), where:

(a) 2 or more breaches of a term of an award or order are committed by the same organisation or person; and

(b) the breaches arose out of a course of conduct by the organisation or person;

the breaches shall, for the purposes of this section, be taken to constitute a single breach of the term.

(3) Subsection (2) does not apply in relation to:

(a) a breach of a term of an award or order that is committed by an organisation or person after a court has imposed a penalty on the organisation or person for an earlier breach of the term; or

(b) a breach of a term of an award or order that is taken to have been committed by a person under a provision included in an award or order under paragraph 111 (1) (e).

(4) The maximum penalty that may be imposed under subsection (1) for a breach of a term of an award or order is:

(a) where the penalty is imposed by the Court:

(i) if the breach is taken to have been committed under a provision included in an award or order under paragraph 111 (1) (e)—$500; and

(ii) in any other case—$1,000; and

(b) where the penalty is not imposed by the Court—$500.

(5) A penalty for a breach of a term of an award or order may be sued for and recovered by:

(a) an inspector;

(b) a party to the award or order;

(c) a member of an organisation who is affected by the breach;

(d) an organisation that is affected, or any of whose members are affected, by the breach; or


(e) an officer of an organisation that is affected, or any of whose members are affected, by the breach where the officer is authorised, under the rules of the organisation, to sue on behalf of the organisation.

(6) Where, in a proceeding against an employer under this section, it appears to the court concerned that an employee of the employer has not been paid an amount to which the employee is entitled under an award or order, the court may order the employer to pay to the employee the amount of the underpayment.

(7) An order shall not be made under subsection (6) in relation to so much of an underpayment as relates to any period more than 6 years before the commencement of the proceeding.

(8) A proceeding under this section in relation to a breach of a term of an award or order shall be commenced not later than 6 years after the commission of the breach.

(9) In this section:

“court of competent jurisdiction” means:

(a) a District, County or Local Court; or

(b) a magistrate’s court.

Recovery of wages etc.

179. An employee entitled to the benefit of an award or order may, not later than 6 years after a payment becomes due to the employee under the award or order, sue for the amount of the payment in the Court or in any other court of competent jurisdiction.

Unclaimed moneys

180. (1) Where:

(a) an employee has left the employment of an employer without having been paid an amount to which the employee is entitled under an award or order; and

(b) the employer is unable to pay the amount to the former employee because the employer does not know the former employee’s whereabouts;

the employer may pay the amount to the Commonwealth.

(2) The Commonwealth holds the amount in trust for the former employee.

(3) Payment of the amount to the Commonwealth is a sufficient discharge to the employer, as against the former employee, for the amount paid.

Division 2Breaches of bans clauses

Conduct in breach of bans clause

181. (1) Where an organisation or person bound by an award that includes a bans clause is of the opinion that there is, or is likely to be, a


breach of the clause, the organisation or person may notify a Registrar of the alleged breach or likely breach.

(2) For the purposes of this Division, a Presidential Member may exercise any powers of the Commission (including conciliation powers), other than powers that are exercisable only by a Full Bench.

(3) Where notice has been given under subsection (1), a Presidential Member shall inquire into the matters alleged in the notice.

(4) If, after inquiry into the matters alleged in the notice, a Presidential Member is of the opinion:

(a) that there has been a breach of the bans clause; and

(b) that either of the following subparagraphs applies:

(i) the breach is continuing;

(ii) a further breach is likely to happen;

the Presidential Member shall:

(c) endeavour to bring about an early end to the breach; or

(d) endeavour to prevent the further breach, and, if the further breach happens, to bring about an early end to the further breach;

as the case may be.

(5) If, after inquiry into the matters alleged in the notice, a Presidential Member is of the opinion:

(a) that there has not been a breach of the bans clause; but

(b) that such a breach is likely to happen;

the Presidential Member shall endeavour to prevent the breach, and, if the breach happens, to bring about an early end to the breach.

(6) If a breach of the bans clause is continuing in spite of the Presidential Member having taken such action in relation to the breach as was, in the opinion of the Presidential Member, appropriate to bring about an early end to the breach, the Presidential Member shall make and sign a record to that effect.

Certificate required for enforcement of bans clause

182. A proceeding may only be instituted under section 178 in relation to a breach of a bans clause if a certificate has been issued under this Division in relation to the breach.

Certificate where settlement action fails

183. (1) Where a record is made under subsection 181 (6) in relation to a breach of a bans clause, a party to the proceeding in which the record was made may apply to the Commission for the issue by a Presidential Member of a certificate under subsection (2) in relation to the breach.

(2) A Presidential Member shall issue a certificate under this subsection authorising the party to bring a proceeding under section 178 in relation to the breach unless the Presidential Member is satisfied:

(a) that the breach has ended; or


(b) that the matters that gave rise to the breach will be settled promptly or the breach is otherwise about to end.

Certificate for breach after settlement action

184. (1) Where:

(a) a Presidential Member takes action to give effect to subsection 181 (4) or (5) in relation to a breach, or likely breach, of a bans clause;

(b) the breach ends or the likely breach does not happen;

(c) a breach of the bans clause subsequently happens; and

(d) the subsequent breach arose out of a matter that is the same as a matter out of which the earlier breach arose or was likely to arise, as the case may be;

a party to the proceeding in which the action was taken by the Presidential Member may apply to the Commission for the issue by a Presidential Member of a certificate under subsection (2) in relation to the subsequent breach.

(2) A Presidential Member shall issue a certificate under this subsection authorising the party to bring a proceeding under section 178 in relation to the subsequent breach unless the Presidential Member is satisfied that the matters that gave rise to the breach will be settled promptly or that the breach is otherwise about to end.

Certificate for breach before settlement action

185. (1) Where:

(a) a Presidential Member takes action to give effect to subsection 181 (4) in relation to a breach of a bans clause; and

(b) the breach ends;

a party to the proceeding in which the action was taken by the Presidential Member may apply to the Commission for the issue by a Presidential Member of a certificate under subsection (2) in relation to the breach.

(2) If, after inquiry, a Presidential Member:

(a) is satisfied that the breach happened and has ended; and

(b) is of the opinion that the issue of a certificate under this subsection in relation to the breach would not be undesirable having regard to the circumstances in which the breach ended or the terms of any settlement of the matters that gave rise to the breach;

the Presidential Member may issue a certificate under this subsection authorising the party to bring a proceeding under section 178 in relation to the breach.

Certificate where settlement action not taken

186. (1) Where:

(a) an organisation or person bound by an award that includes a bans clause is of the opinion that there has been a breach of the clause that has ended; and


(b) either of the following subparagraphs applies:

(i) notification was not given under subsection 181 (1) in relation to the breach;

(ii) notification was given under subsection 181 (1) in relation to the breach, but action was not taken under section 181 in relation to the breach;

the organisation or person may apply to the Commission for the issue by a Presidential Member of a certificate under subsection (2) in relation to the breach.

(2) If, after inquiry, a Presidential Member:

(a) is satisfied that the breach happened and has ended; and

(b) is of the opinion that the issue of a certificate under this subsection in relation to the breach would not be undesirable having regard to the circumstances in which the breach ended or the terms of any settlement of the matters that gave rise to the breach;

the Presidential Member may issue a certificate under this subsection authorising the organisation or person to bring a proceeding under section 178 in relation to the breach.

Division 3Cancellation and suspension of awards and orders

Cancellation and suspension of awards and orders

187. (1) An organisation, a person interested or the Minister may apply to the President, and a member of the Commission or a Registrar may refer a matter to the President, for action by a Full Bench under this section.

(2) Where an application is made to the President under subsection (1), the President shall establish a Full Bench to hear and determine the application.

(3) Where a matter is referred to the President under subsection (1), the President may establish a Full Bench to hear and determine the matter.

(4) If it appears to the Full Bench:

(a) that an organisation has contravened this Act or an award or an order of the Commission;

(b) that a substantial number of the members of an organisation refuse to accept employment either at all or in accordance with existing awards and orders; or

(c) that for any other reason an award or an order of the Commission should be suspended or cancelled in whole or part;

the Full Bench may, subject to such conditions as it considers appropriate, cancel, or suspend for such period as it considers appropriate, all or any of the terms of an award or an order of the Commission.

(5) The Full Bench may also make such other orders as it considers appropriate in relation to the operation of:


(a) if the Full Bench cancels or suspends the award or order on a ground referred to in paragraph (4) (a) or (b)—any other award or order to which the organisation is a party; or

(b) in any other case—any other award or order that applies in relation to the employment of:

(i) members of an organisation that is a party to the cancelled or suspended award or order; or

(ii) persons eligible to be members of such an organisation.

(6) The cancellation or suspension of all or any of the terms of an award or order may be expressed to apply only in relation to:

(a) a particular organisation or person bound by the award or order;

(b) a particular branch of an organisation;

(c) a particular class of members of an organisation; or

(d) a particular locality.

 

PART IX—REGISTERED ORGANISATIONS

Division 1Registration

Associations capable of applying for registration

188. (1) Any of the following associations may apply for registration as an organisation:

(a) an association of which some or all of the members are employers who are capable of being engaged in an industrial dispute and the other members (if any) are:

(i) officers of the association;

(ii) persons (other than employees) who carry on business; or

(iii) persons who, when admitted to membership, were employers and who have not resigned and whose membership has not been terminated;

(b) an association of which some or all of the members are employees who are capable of being engaged in an industrial dispute and the other members (if any) are:

(i) officers of the association; or

(ii) persons specified in Schedule 3.

(2) Subsection (1) does not apply in relation to an association that has members referred to in subparagraph (1) (a) (ii) or (iii) or (b) (ii) unless the association is effectively representative of the members who are employers or employees, as the case may be.

Criteria for registration

189. (1) A designated Presidential Member shall grant an application for registration made by an association that, under section 188, may apply for registration as an organisation if, and only if:


(a) the association:

(i) is a genuine association of a kind referred to in section 188; and

(ii) is an association for furthering or protecting the interests of its members;

(b) in the case of an association of employers:

(i) the members who are employers have, in the aggregate, throughout the 6 months before the application, employed on an average taken per month at least 1,000 employees; or

(ii) the designated Presidential Member is satisfied that special circumstances exist justifying the association’s registration;

(c) in the case of an association of employees:

(i) the association has at least 1,000 members who are employees; or

(ii) the designated Presidential Member is satisfied that special circumstances exist justifying the association’s registration;

(d) in the case of an association of employees:

(i) the association is an industry-based association; or

(ii) the designated Presidential Member is satisfied that special circumstances exist justifying the association’s registration;

(e) the rules of the association make provision as required by this Act to be made by the rules of organisations;

(f) the association does not have the same name as that of an organisation or a name that is so similar to the name of an organisation as to be likely to cause confusion;

(g) a majority of the members present at a general meeting of the association, or an absolute majority of the committee of management of the association, have passed, under the rules of the association, a resolution in favour of registration of the association as an organisation;

(h) the registration of the association would further the objects of this Act; and

(j) there is no organisation to which the members of the association might conveniently belong.

(2) Paragraph (1) (d) does not apply in relation to:

(a) an association proposed to be registered under a proposed amalgamation under Division 7 of this Part or Part 3 of Schedule 4; or

(b) an association the previous registration of which as an organisation under a law of the Commonwealth has been cancelled under such a law.

(3) In this section:

“business” means a business, trade, manufacture, undertaking or calling of employers;


“industry-based association” means an association of employees whose eligibility rules, so far as they relate to the eligibility of employees for membership, restrict eligibility for membership to persons who are employees in relation to the same kind of business.

Applicant for registration may change its name or alter its rules

190. (1) A designated Presidential Member may, on the application of an association applying to be registered as an organisation, grant leave to the association, on such terms and conditions as the Presidential Member considers appropriate, to change its name or to alter its rules:

(a) to enable it to comply with this Act; or

(b) to remove a ground of objection taken by an objector under the regulations or by the Presidential Member.

(2) An association granted leave under subsection (1) may change its name, or alter its rules, even though the application for registration is pending.

(3) Rules of an association as altered in accordance with leave granted under subsection (1) are binding on the members of the association:

(a) in spite of anything in the other rules of the association; and

(b) subject to any further alterations lawfully made.

Registration

191. (1) When a Presidential Member grants an application by an association for registration as an organisation, the Industrial Registrar shall immediately enter, in the register kept under paragraph 63 (1) (a), the name and eligibility rules of the association, and the date of the entry.

(2) An association shall be taken to be registered under this Act when the Industrial Registrar enters the name and eligibility rules of the association in the register under subsection (1).

(3) On registration, an association becomes an organisation.

(4) The Industrial Registrar shall issue to each organisation registered under this Act a certificate of registration in the prescribed form.

(5) The certificate shall, until proof of cancellation, be conclusive evidence of the registration of the organisation specified in the certificate.

(6) The Industrial Registrar may, as prescribed, issue to an organisation a copy of, or a certificate replacing, the certificate of registration issued under subsection (4) or that certificate as amended under section 206.

Incorporation

192. An organisation:

(a) is a body corporate;

(b) has perpetual succession;


(c) has power to purchase, take on lease, hold, sell, lease, mortgage, exchange and otherwise own, possess and deal with any real or personal property;

(d) shall have a common seal; and

(e) may sue or be sued in its registered name.

Designated Presidential Member to review registration of small organisations

193. (1) A designated Presidential Member is empowered to consider, in relation to a small organisation, whether special circumstances exist that justify the continued registration of the organisation in the public interest.

(2) The power conferred by subsection (1):

(a) shall be exercised, in relation to each organisation that is a small organisation at the beginning of the relevant period, as provided by subsection (3); and

(b) subject to subsection (5), may be exercised, after the end of the relevant period, whenever a designated Presidential Member considers appropriate.

(3) Where an organisation is a small organisation at the beginning of the relevant period, a designated Presidential Member shall:

(a) start to consider the matters mentioned in subsection (1) in relation to the organisation during the relevant period; and

(b) finish considering those matters as soon as practicable.

(4) A designated Presidential Member is not required to comply with subsection (3) in relation to an organisation if, when the Presidential Member proposes to start considering the matters mentioned in subsection (1), the organisation is no longer a small organisation.

(5) The power conferred by subsection (1) shall not be exercised in relation to a particular organisation more than once in any period of 3 years.

(6) Where, on exercising the power conferred by subsection (1), a Presidential Member is not satisfied that special circumstances exist that justify the continued registration of a small organisation in the public interest, the Presidential Member shall cancel the registration of the organisation.

(7) In this section:

“relevant period” means the period beginning 3 years after the commencement of this section and ending 4 years after that commencement;

“small organisation” means an organisation of employees that has fewer than 1,000 members who are employees.


 

Division 2Rules of organisations

Organisations to have rules

194. (1) An organisation shall have rules that make provision as required by this Act.

(2) A rule of an organisation making provision required by this Act to be made may be mandatory or directory.

Rules of organisations

195. (1) The rules of an organisation:

(a) shall specify the purposes for which the organisation is formed and the conditions of eligibility for membership, and may specify the industry in relation to which it is formed;

(b) shall provide for:

(i) the powers and duties of the committees of the organisation and its branches, and the powers and duties of holders of offices in the organisation and its branches;

(ii) the manner of summoning meetings of members of the organisation and its branches, and meetings of the committees of the organisation and its branches;

(iii) the removal of holders of offices in the organisation and its branches;

(iv) the control of committees of the organisation and its branches respectively by the members of the organisation and branches;

(v) the manner in which documents may be executed by or on behalf of the organisation;

(vi) the manner of notifying the Commission of industrial disputes;

(vii) the times when, and the terms on which, persons become or cease (otherwise than by resignation) to be members;

(viii) the resignation of members under section 264;

(ix) the manner in which the property of the organisation is to be controlled and its funds invested;

(x) the yearly or other more frequent audit of the accounts;

(xi) the conditions under which funds may be spent;

(xii) the keeping of a register of the members, arranged, where there are branches of the organisation, according to branches; and

(xiii) the manner in which its rules may be altered;

(c) may provide for the removal from office of a person elected to an office in the organisation only where the person has been found guilty, under the rules of the organisation, of:

(i) misappropriation of the funds of the organisation;

(ii) a substantial breach of the rules of the organisation; or

(iii) gross misbehaviour or gross neglect of duty;


or has ceased, under the rules of the organisation, to be eligible to hold the office; and

(d) shall require the organisation to inform applicants for membership, in writing, of:

(i) the financial obligations arising from membership; and

(ii) the circumstances, and the manner, in which a member may resign from the organisation.

(2) The rules of an organisation of employers shall also provide that, within 14 days after:

(a) the business, or part of the business, of a member of the organisation is assigned or transferred to a person who is not a member of the organisation; or

(b) such a person succeeds to the business, or part of the business, of a member of the organisation;

the member is required to notify the organisation of the assignment, transfer or succession.

(3) The rules of an organisation may also provide for any other matter.

(4) In this section:

“committee”, in relation to an organisation or branch of an organisation, means a collective body of the organisation or branch that has powers of the kind mentioned in paragraph (b) of the definition of “office” in subsection 4 (1).

General requirements for rules

196. The rules of an organisation:

(a) shall not be contrary to, or fail to make a provision required by, this Act or an award, or otherwise be contrary to law;

(b) shall not be such as to prevent or hinder members of the organisation from:

(i) observing the law or the provisions of an award or an order of the Commission; or

(ii) entering into written agreements under an award or an order of the Commission; and

(c) shall not impose on applicants for membership, or members, of the organisation, conditions, obligations or restrictions that, having regard to the objects of this Act and the purposes of the registration of organisations under this Act, are oppressive, unreasonable or unjust.

Rules to provide for elections for offices

197. (1) The rules of an organisation:

(a) shall provide for the election of the holder of each office in the organisation by:

(i) a direct voting system; or


(ii) a collegiate electoral system that, in the case of a full-time office, is a one-tier collegiate electoral system;

(b) shall provide for the conduct of every such election (including the acceptance or rejection of nominations) by a returning officer who is not the holder of any office in, or an employee of, the organisation or a branch, section or division of the organisation;

(c) shall provide that, if the returning officer conducting an election finds a nomination to be defective, the returning officer shall, before rejecting the nomination, notify the person concerned of the defect and, where practicable, give the person the opportunity of remedying the defect within such period as is applicable under the rules, which shall, where practicable, be not less than 7 days after the person is notified;

(d) shall make provision for:

(i) the manner in which persons may become candidates for election;

(ii) the duties of returning officers; and

(iii) the declaration of the result of an election;

(e) shall provide that, where a ballot is required, it shall be a secret ballot, and shall make provision for:

(i) absent voting;

(ii) the conduct of the ballot; and

(iii) the appointment, conduct and duties of scrutineers to represent the candidates at the ballot; and

(f) shall be such as to ensure, as far as practicable, that no irregularities can occur in relation to an election.

(2) Without limiting section 196, the rules of an organisation relating to elections may provide for compulsory voting.

(3) A reference in this section to the rules of an organisation includes a reference to the rules of a branch of the organisation.

(4) The reference in paragraph (1) (c) to a nomination being defective does not include a reference to a nomination of a person that is defective because the person is not qualified to hold the office to which the nomination relates.

Rules to provide for elections by secret postal ballot

198. (1) Where the rules of an organisation provide for election for an office to be by a direct voting system, the rules shall also provide that, where a ballot is required for such an election, it shall be a secret postal ballot.

(2) An organisation may lodge in the Industrial Registry an application for an exemption from subsection (1), accompanied by particulars of proposed alterations of the rules of the organisation, to provide for the


conduct of elections of the kind referred to in subsection (1) by a secret ballot other than a postal ballot.

(3) If the Industrial Registrar is satisfied, on application by an organisation under subsection (2):

(a) that the proposed alterations of the rules:

(i) comply with and are not contrary to this Act (other than subsection (1)) and awards;

(ii) are not otherwise contrary to law; and

(iii) have been decided on under the rules of the organisation; and

(b) that the conduct of a ballot under the rules of the organisation as proposed to be altered:

(i) is likely to result in a fuller participation by members of the organisation in the ballot than would result from a postal ballot; and

(ii) will afford to members entitled to vote an adequate opportunity of voting without intimidation;

the Industrial Registrar may grant to the organisation an exemption from subsection (1).

(4) Proposed alterations of the rules of an organisation referred to in subsection (2) take effect if and when the Industrial Registrar grants to the organisation an exemption from subsection (1).

(5) An exemption under subsection (3) remains in force until revoked under subsection (6).

(6) The Industrial Registrar may revoke an exemption granted to an organisation under subsection (3):

(a) on application by the organisation, if the Industrial Registrar is satisfied that the rules of the organisation comply with subsection (1); or

(b) if the Industrial Registrar is no longer satisfied:

(i) that the rules of the organisation provide for the conduct of elections of the kind referred to in subsection (1) by a secret ballot other than a postal ballot; or

(ii) of a matter referred to in paragraph (3) (b);

and the Industrial Registrar has given the organisation an opportunity, as prescribed, to show cause why the exemption should not be revoked.

(7) Where the Industrial Registrar revokes an exemption granted to an organisation on the ground specified in paragraph (6) (b), the Industrial Registrar may, by instrument, after giving the organisation an opportunity, as prescribed, to be heard, determine such alterations (if any) of the rules of the organisation as are, in the Industrial Registrar’s opinion, necessary to bring them into conformity with subsection (1).


(8) An alteration of the rules of an organisation determined under subsection (7) takes effect on the date of the instrument.

(9) Subsection 81 (1) does not apply in relation to a decision of the Industrial Registrar to grant an exemption under subsection (3).

(10) This section applies in relation to elections for offices in branches of organisations as if references to an organisation were references to a branch of an organisation.

Rules to provide for terms of office

199. (1) The rules of an organisation:

(a) shall, subject to paragraph (b) and subsection (3), provide terms of office for officers in the organisation of no longer than 4 years without re-election; and

(b) may provide that, where a person elected to a full-time office will attain retirement age within 12 months after the end of the term for which the person is elected, the person may hold the office, without being re-elected, until attaining retirement age.

(2) Where the rules of an organisation provide as mentioned in paragraph (1) (b), the rules shall provide that where a candidate duly nominated for election to a full-time office is a person who, if elected, will hold that office in the circumstances mentioned in that paragraph, the ballot papers for the election shall indicate the maximum term for which, if elected, the person may hold office.

(3) The rules of an organisation, or a branch of an organisation, may provide that a particular term of office is extended for a specified period, where the extension is for the purpose of synchronising elections for offices in the organisation or branch, as the case may be.

(4) Rules made under subsection (3) may apply in relation to a term of office that started before the commencement of this section.

(5) The term of an office shall not be extended under subsection (3) so that the term exceeds 5 years.

(6) A reference in this section (other than subsection (3)) to the rules of an organisation includes a reference to the rules of a branch of the organisation.

(7) In this section:

“retirement age”, in relation to an office, means the retirement age applicable to the office under the rules of the organisation concerned or, where the rules provide for a minimum retirement age and a maximum retirement age in relation to the office, the maximum retirement age.


Rules may provide for filling of casual vacancies

200. (1) The rules of an organisation may provide for the filling of a casual vacancy in an office by an ordinary election or, subject to this section, in any other manner provided in the rules.

(2) Rules made under subsection (1) shall not permit a casual vacancy, or a further casual vacancy, occurring within the term of an office to be filled, otherwise than by an ordinary election, for so much of the unexpired part of the term as exceeds:

(a) 12 months; or

(b) three-quarters of the term of the office;

whichever is the greater.

(3) Where, under rules made under subsection (1), a vacancy in an office in an organisation is filled otherwise than by an ordinary election, the person filling the vacancy shall be taken, for the purposes of the relevant provisions, to have been elected to the office under the relevant provisions.

(4) A reference in this section to the rules of an organisation includes a reference to the rules of a branch of the organisation.

(5) In this section:

“ordinary election” means an election held under rules that comply with section 197;

“relevant provisions”, in relation to an organisation, means:

(a) the provisions of this Act (other than this section); and

(b) the rules of the organisation (other than rules made under subsection (1)) providing for the filling of a casual vacancy in an office otherwise than by an ordinary election;

“term”, in relation to an office, means the total period for which the last person elected to the office by an ordinary election (other than an ordinary election to fill a casual vacancy in the office) was entitled by virtue of that election (disregarding any rule made under paragraph 199 (1) (b) but having regard to any rule made under subsection 199 (3)) to hold the office without being re-elected.

Rules to provide conditions for loans, grants and donations by organisations

201. (1) The rules of an organisation, and the rules of a branch of an organisation, shall provide that a loan, grant or donation of an amount exceeding $1,000 shall not be made by the organisation or the branch, as the case may be, unless the relevant committee of management:

(a) has satisfied itself:

(i) that the making of the loan, grant or donation would be in accordance with the other rules of the organisation or branch; and

(ii) in the case of a loan—that, in the circumstances, the security proposed to be given for the repayment of the loan is


adequate and the proposed arrangements for the repayment of the loan are satisfactory; and

(b) has approved the making of the loan, grant or donation.

(2) In spite of subsection (1), the rules of an organisation or branch may provide for a person authorised by the rules to make a loan, grant or donation of an amount not exceeding $3,000 to a member of the organisation or branch, if the loan, grant or donation:

(a) is for the purpose of relieving the member or any of the member’s dependants from severe financial hardship; and

(b) is subject to a condition to the effect that, if the relevant committee of management, at the next meeting of the committee, does not approve the loan, grant or donation, it shall be repaid as determined by the committee.

(3) In considering whether to approve a loan, grant or donation made under subsection (2), the relevant committee of management shall have regard to:

(a) whether the loan, grant or donation was made under the rules of the organisation or branch; and

(b) in the case of a loan:

(i) whether the security (if any) given for the repayment of the loan is adequate; and

(ii) whether the arrangements for the repayment of the loan are satisfactory.

(4) Nothing in subsection (1) requires the rules of an organisation, or a branch of an organisation, to make provision of the kind referred to in that subsection in relation to payments made by the organisation or branch by way of provision for, or reimbursement of, out-of-pocket expenses incurred by persons for the benefit of the organisation or branch.

(5) In this section:

“relevant committee of management”, in relation to an organisation or branch of an organisation, means the committee of management of the organisation or branch, as the case may be.

Rules may permit organisation to enter into agreements with State registered unions

202. (1) The rules of an organisation of employees may authorise the organisation to enter into agreements, in the prescribed form, with State registered unions to the effect that members of the State registered union concerned who are ineligible State members are eligible to become members of the organisation under the agreement.

(2) Where, under rules made under subsection (1), an organisation enters into an agreement with a State registered union:

(a) the organisation shall lodge a copy of the agreement in the Industrial Registry;


(b) the Industrial Registrar shall immediately enter particulars of the agreement in the register kept under paragraph 63 (1) (a); and

(c) the agreement comes into force when the particulars are entered.

(3) An organisation is not entitled to represent the industrial interests of persons who are only eligible for membership of the organisation under an agreement entered into under rules made under subsection (1).

(4) Where a person who became a member of an organisation under an agreement entered into under rules made under subsection (1) later becomes eligible for membership of the organisation under its eligibility rules, the organisation is not entitled to represent the industrial interests of the person until a record of the person’s eligibility is entered in the register kept under paragraph 268 (1) (a).

(5) Where an organisation and a State registered union agree, in writing, to terminate an agreement entered into under rules made under subsection (1):

(a) the organisation shall lodge in the Industrial Registry a copy of the agreement to terminate;

(b) the Industrial Registrar shall immediately enter particulars of the termination in the register kept under paragraph 63 (1) (a);

(c) the termination of the agreement takes effect when the particulars are entered; and

(d) when the termination of the agreement takes effect, persons who became members of the organisation under the agreement (other than a person whose eligibility for membership of the organisation under its eligibility rules is recorded as mentioned in subsection (4)) cease to be members of the organisation.

(6) In this section:

“ineligible State members”, in relation to an organisation, means the members of a State registered union who, under the eligibility rules of the organisation, are not eligible to be members of the organisation;

“State registered union”, in relation to an organisation, means an industrial union or association registered under a State Act which is composed substantially of persons who, under the eligibility rules of the organisation, are eligible to be members of the organisation;

“State Act” means:

(a) the Industrial Arbitration Act, 1940 of New South Wales;

(b) the Industrial Conciliation and Arbitration Act 1961 of Queensland;

(c) the Industrial Relations Act 1979 of Western Australia; or

(d) the Industrial Conciliation and Arbitration Act, 1972 of South Australia.


Industrial Registrar may determine alterations of rules

203. (1) Where the rules of an organisation do not, in the Industrial Registrar’s opinion, make provision required by this Act, the Industrial Registrar may, by instrument, after giving the organisation an opportunity, as prescribed, to be heard on the matter, determine such alterations of the rules as are, in the Industrial Registrar’s opinion, necessary to bring them into conformity with this Act.

(2) Alterations determined under subsection (1) take effect on the date of the instrument.

Change of name or alteration of eligibility rules of organisation

204. (1) A change in the name of an organisation, or an alteration of the eligibility rules of an organisation, does not take effect unless a designated Presidential Member consents to the change or alteration.

(2) A designated Presidential Member may consent to a change or alteration in whole or part, but shall not consent unless the Presidential Member is satisfied that the change or alteration has been made under the rules of the organisation.

(3) A designated Presidential Member shall not consent to a change in the name of an organisation unless the Presidential Member is satisfied that the proposed new name of the organisation:

(a) is not the same as the name of another organisation; and

(b) is not so similar to the name of another organisation as to be likely to cause confusion.

(4) A designated Presidential Member shall not consent to an alteration of the eligibility rules of an organisation if, in relation to persons who would be eligible for membership because of the alteration, there is, in the opinion of the designated Presidential Member, another organisation to which those persons might conveniently belong.

(5) Subject to subsection (6), a designated Presidential Member shall not consent to an alteration of the eligibility rules of an organisation that is an industry-based organisation if, because of the alteration, the organisation would stop being an industry-based organisation.

(6) A designated Presidential Member may consent to an alteration of the kind referred to in subsection (5) if the designated Presidential Member is satisfied that there are special circumstances justifying the alteration.

(7) Where a designated Presidential Member consents under subsection (1), to a change or alteration, the change or alteration takes effect on:

(a) where a date is specified in the consent—that date; or

(b) in any other case—the day of the consent.

(8) This section does not apply to a change in the name, or an alteration of the eligibility rules, of an organisation that is:


(a) determined by a designated Presidential Member under subsection 118 (7) or 208 (6); or

(b) proposed to be made for the purposes of an amalgamation under Division 7 of this Part or Part 3 of Schedule 4.

(9) In this section:

“business” means a business, trade, manufacture, undertaking or calling of employers;

“industry-based organisation” means an organisation of employees whose eligibility rules, so far as they relate to the eligibility of employees for membership, restrict eligibility for membership to persons who are employees in relation to the same kind of business.

Alteration of other rules of organisation

205. (1) An alteration of the rules (other than the eligibility rules) of an organisation does not take effect unless particulars of the alteration have been lodged in the Industrial Registry and a Registrar has certified that, in his or her opinion, the alteration:

(a) complies with, and is not contrary to, this Act and awards;

(b) is not otherwise contrary to law; and

(c) has been made under the rules of the organisation.

(2) Where particulars of an alteration of the rules (other than the eligibility rules) of an organisation have been lodged in the Industrial Registry, a Registrar may, with the consent of the organisation, amend the alteration for the purpose of correcting a typographical, clerical or formal error.

(3) An alteration of rules that has been certified under subsection (1) takes effect on the day of certification.

(4) This section does not apply in relation to an alteration of the rules of an organisation that is:

(a) proposed to be made in relation to an application for an exemption from subsection 198 (1);

(b) determined by the Industrial Registrar under subsection 198 (7) or section 203 or 208; or

(c) proposed to be made for the purpose of an amalgamation under Division 7 of this Part or Part 3 of Schedule 4.

Certain alterations of rules to be recorded

206. Where there has been a change in the name of an organisation, or an alteration of the eligibility rules of an organisation, under this Act, the Industrial Registrar shall:

(a) immediately enter, in the register kept under paragraph 63 (1) (a), particulars of the change or alteration, and the date of effect of the change or alteration; and


(b) as soon as practicable after the organisation produces its certificate of registration to the Industrial Registrar, amend the certificate accordingly and return it to the organisation.

Evidence of rules

207. In proceedings under this Act a copy of the rules of an organisation certified by a Registrar to be a true and correct copy is evidence of the rules of the organisation.

Division 3Validity and performance of rules

Rules contravening section 196

208. (1) A member of an organisation may apply to the Court for an order under this section in relation to the organisation.

(2) An order under this section may declare that the whole or a part of a rule of an organisation contravenes section 196 or that the rules of an organisation contravene section 196 in a particular respect.

(3) An organisation in relation to which an application is made under this section shall be given an opportunity of being heard by the Court.

(4) The Court may, without limiting any other power of the Court to adjourn proceedings, adjourn proceedings in relation to an application under this section for such period and on such terms and conditions as it considers appropriate for the purpose of giving the organisation an opportunity to alter its rules.

(5) Where an order under this section declares that the whole or a part of a rule contravenes section 196, the rule or that part of the rule, as the case may be, shall be taken to be void from the date of the order.

(6) Where:

(a) the Court makes an order declaring as mentioned in subsection (2) in relation to the rules of an organisation; and

(b) at the expiration of 3 months from the making of the order, the rules of the organisation have not been altered in a manner that, in the opinion of the appropriate authority, brings them into conformity with section 196 in relation to the matters that gave rise to the order;

the appropriate authority shall, after giving the organisation an opportunity, as prescribed, to be heard on the matter, determine, by instrument, such alterations of the rules as will, in the appropriate authority’s opinion, bring them into conformity with that section in relation to those matters.

(7) The appropriate authority may, on the application of the organisation made within the period of 3 months referred to in subsection (6) or within any extension of the period, extend, or further extend, the period.

(8) Alterations determined under subsection (6) take effect on the date of the instrument.


(9) At any time after a proceeding under this section has been instituted, the Court may make such interim orders as it considers appropriate in relation to a matter in relation to which the matters raised in the proceeding are relevant.

(10) An order under subsection (9) continues in force, unless expressed to operate for a shorter period or sooner discharged, until the completion of the proceeding concerned.

(11) In this section:

“appropriate authority” means:

(a) in relation to the eligibility rules of an organisation—a designated Presidential Member; or

(b) in relation to the other rules of an organisation—the Industrial Registrar.

(12) In this section, a reference to a rule, or the rules, of an organisation includes a reference to a rule, or the rules, of a branch of an organisation.

Directions for performance of rules

209. (1) A member of an organisation may apply to the Court for an order under this section in relation to the organisation.

(2) Before making an order under this section, the Court shall give any person against whom the order is sought an opportunity of being heard.

(3) The Court may refuse to deal with an application for an order under this section unless it is satisfied that the applicant has taken all reasonable steps to try to have the matter the subject of the application resolved within the organisation.

(4) At any time after the making of an application for an order under this section, the Court may make such interim orders as it considers appropriate, and, in particular, orders intended to further the resolution within the organisation concerned of the matter the subject of the application.

(5) An order under subsection (4) continues in force, unless expressed to operate for a shorter period or sooner discharged, until the completion of the proceeding concerned.

(6) An order shall not be made under this section that would have the effect of treating as invalid an election to an office in an organisation or a step in relation to such an election.

(7) Where the Court, in considering an application under this section, finds that the whole or a part of a rule of the organisation concerned contravenes section 196 or that the rules of the organisation concerned contravene that section in a particular respect, the Court may, by order, make a declaration to that effect.


(8) Section 208 (other than subsections (1) to (4) (inclusive)) applies in relation to an order made under subsection (7) of this section as if the order had been made under section 208.

(9) In this section:

“election” includes a purported election that is a nullity;

“order under this section” means an order giving directions for the performance or observance of any of the rules of an organisation by any person who is under an obligation to perform or observe those rules.

Division 4Conduct of elections for office

Conduct by Australian Electoral Commission

210. (1) Each election for an office in an organisation or branch of an organisation shall be conducted by the Australian Electoral Commission.

(2) Subsection (1) does not apply in relation to an election for an office in an organisation or branch while an exemption granted to the organisation or branch, as the case may be, under section 213 is in force.

Application for organisation or branch to conduct its elections

211. (1) The committee of management of an organisation or branch of an organisation may lodge in the Industrial Registry an application for the organisation or branch, as the case may be, to be exempted from subsection 210 (1) in relation to elections for offices in the organisation or branch.

(2) An application may not be made by a committee of management of an organisation or branch of an organisation unless the committee of management:

(a) has resolved to make the application; and

(b) has notified the members of the organisation or branch, as prescribed, of the making of the resolution.

(3) An application under subsection (1) shall be accompanied by a statutory declaration by a member of the committee of management concerned stating that subsection (2) has been complied with.

(4) Where an application has been made under subsection (1), the Industrial Registrar shall cause a notice setting out details of the application to be published, as prescribed, for the purpose of bringing the notice to the attention of members of the organisation or branch concerned.

(5) Where the rules of an organisation require an office to be filled by an election by the members, or by some of the members, of a single branch of the organisation, an election to fill the office shall be taken to be an election for the branch.


Objections to application to conduct elections

212. (1) Objection may be made to an application under subsection 211 (1) by a member of the organisation or branch of the organisation in relation to which the application was made.

(2) The Industrial Registrar or, if the Industrial Registrar directs, another Registrar shall, as prescribed, hear the application and any objections duly made.

Registrar may permit organisation or branch to conduct its elections

213. (1) Where an application in relation to an organisation or branch has been lodged under subsection 211 (1) and, after any objections duly made have been heard, a Registrar is satisfied:

(a) that the rules of the organisation or branch comply with the requirements of this Act relating to the conduct of elections; and

(b) that, if the organisation or branch is exempted from subsection 210 (1), the elections for the organisation or branch will be conducted:

(i) under the rules of the organisation or branch, as the case may be, and this Act; and

(ii) in a manner that will afford members entitled to vote at such elections an adequate opportunity of voting without intimidation;

the Registrar may exempt the organisation or branch from subsection 210 (1).

(2) A Registrar may revoke an exemption granted to an organisation or branch under subsection (1):

(a) on application by the committee of management of the organisation or branch; or

(b) if the Registrar:

(i) is no longer satisfied as mentioned in subsection (1); and

(ii) has given the committee of management of the organisation or branch an opportunity, as prescribed, to show cause why the exemption should not be revoked.

Registrar to arrange for conduct of elections

214. (1) An organisation or branch of an organisation (other than an organisation or branch to which a Registrar has, under section 213, granted an exemption) shall lodge the prescribed information in relation to an election in the Industrial Registry before the prescribed day or such later day as the Industrial Registrar allows.

(2) If:

(a) the prescribed information is lodged in the Industrial Registry by the organisation or branch (whether or not before the prescribed day or the later day allowed by the Industrial Registrar); and


(b) a Registrar is satisfied that an election is required to be held under the rules of the organisation or branch;

the Registrar shall arrange for the conduct of the election by the Australian Electoral Commission.

Provisions applicable to elections conducted by Australian Electoral Commission

215. (1) Where an electoral official is conducting an election, or taking a step in relation to an election, for an office in, or in a branch of, an organisation, the electoral official:

(a) subject to paragraph (b), shall comply with the rules of the organisation or branch; and

(b) may, in spite of anything in the rules of the organisation or branch, take such action, and give such directions, as the electoral official considers necessary:

(i) to ensure that no irregularities occur in or in relation to the election; or

(ii) to remedy any procedural defects that appear to the electoral official to exist in the rules.

(2) An election conducted by an electoral official, or step taken in relation to such an election, is not invalid merely because of a breach of the rules of the organisation or branch because of:

(a) action taken under subsection (1); or

(b) an act done in compliance with a direction under subsection (1).

(3) Where an electoral official conducting an election, or taking a step in connection with an election:

(a) dies or becomes unable to complete the conduct of the election or the taking of the step; or

(b) ceases to be qualified to conduct the election or to take the step;

the Electoral Commissioner shall arrange for the completion of the conduct of the election, or the taking of the step, by another electoral official.

(4) The expenses incurred by the Australian Electoral Commission in conducting an election under this Act shall be borne by the Commonwealth.

Death of candidate

216. In spite of anything in the rules of an organisation or branch of an organisation, where:

(a) 2 or more candidates are nominated for an election in relation to an office in the organisation or branch; and

(b) one of those candidates dies before the close of the ballot;

the election shall be discontinued and a new election shall be held.


Ballot papers etc. to be preserved

217. (1) In spite of anything in the rules of an organisation or a branch of an organisation, where an election for an office in the organisation or branch is conducted by the Australian Electoral Commission, the organisation or branch, and every officer and employee of the organisation or branch who is able to do so, and the Australian Electoral Commission, shall take such steps as are necessary to ensure that all ballot papers, envelopes, lists and other documents relevant to the election are preserved and kept by the Australian Electoral Commission for one year after the completion of the election.

(2) In spite of anything in the rules of an organisation or a branch of an organisation, where an election for an office in the organisation or branch is conducted by the organisation or branch, the organisation or branch, and every officer and employee of the organisation or branch who is able to do so, shall take such steps as are necessary to ensure that all ballot papers, envelopes, lists and other documents relevant to the election are preserved and kept at the office of the organisation or branch, as the case may be, for one year after the completion of the election.

Division 5—Inquiries into elections

Application for inquiry

218. Where a person who is, or within the preceding period of 12 months has been, a member of an organisation claims that there has been an irregularity in relation to an election for an office in the organisation or a branch of the organisation, the person may make an application for an inquiry by the Court into the matter.

Instituting of inquiry

219. Where:

(a) an application for an inquiry has been lodged with the Court under section 218; and

(b) the Court is satisfied that there is reasonable ground for the application;

the Court shall fix a time and place for conducting the inquiry, and may give such directions as it considers necessary to ensure that all persons who are or may be justly entitled to appear at the inquiry are notified of the time and place fixed and, where the Court fixes a time and place, the inquiry shall be taken to have been instituted.

Court may authorise Industrial Registrar to take certain action

220. (1) Where an application for an inquiry has been lodged with the Court under section 218, the Court may authorise the Industrial Registrar to take for the purposes of the inquiry, personally or by a person acting on his or her behalf, any action referred to in subsection (2).


(2) The actions that may be taken by the Industrial Registrar, or by a person acting on his or her behalf, are as follows:

(a) inspecting election documents;

(b) for the purposes of any such inspection, entering, with such assistance as he or she considers necessary, any premises used or occupied by the organisation, or a branch of the organisation, concerned in which he or she believes election documents to be;

(c) requiring a person to deliver to him or her, in accordance with the requirement, any election documents in the possession or under the control of the person;

(d) taking possession of any election documents;

(e) retaining any election documents delivered to him or her, or of which he or she has taken possession, for such period as is necessary for the purposes of the application and, if proceedings under this Part arise out of the application, until the completion of the proceedings or such earlier time as the Court orders.

(3) Before authorising any action under subsection (1) the Court shall, if it considers that, having regard to all the circumstances, a person should be given an opportunity of objecting to the proposed action, give such an opportunity to the person.

(4) In this section:

“election documents”, in relation to an election, means ballot papers, envelopes, lists or other documents that have been used in, or are relevant to, the election.

Interim orders

221. (1) Where an inquiry into an election has been instituted, the Court may make one or more of the following orders:

(a) an order that no further steps shall be taken in the conduct of the election or in carrying into effect the result of the election;

(b) an order that a person who has assumed an office, has continued to act in an office, or claims to occupy an office, to which the inquiry relates shall not act in the office;

(c) an order that a person who holds, or last held before the election, an office to which the inquiry relates may act or continue to act in the office;

(d) where it considers that an order under paragraph (c) would not be practicable, would be prejudicial to the efficient conduct of the affairs of the organisation or would be inappropriate having regard to the nature of the inquiry, an order that a member of the organisation or another person specified in the order may act in an office to which the inquiry relates;

(e) an order incidental or supplementary to an order under this subsection;

(f) an order varying or discharging an order under this subsection.


(2) Where the Court orders that a person may act, or continue to act, in an office, the person shall, while the order remains in force and in spite of anything in the rules of the organisation or a branch of the organisation, be taken to hold the office.

(3) An order under this section shall continue in force, unless expressed to operate for a shorter period or sooner discharged, until the completion of:

(a) the proceeding concerned in the Court in relation to the election; and

(b) all matters ordered by the Court (otherwise than under this section) in the proceeding.

Procedure at hearing

222. (1) The Court shall allow to appear at an inquiry all persons who apply to the Court for leave to appear and appear to the Court to be justly entitled to be heard, and the Court may order any other person to appear.

(2) The persons appearing, or ordered under subsection (1) to appear, at an inquiry shall be taken to be parties to the proceeding.

(3) For the purposes of this Division:

(a) the procedure of the Court is, subject to this Act and the Rules of Court, within the discretion of the Court; and

(b) the Court is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it considers just.

Action by Court

223. (1) At an inquiry, the Court shall inquire into and determine the question whether an irregularity has happened in relation to the election, and such further questions concerning the conduct and results of the election as the Court considers necessary.

(2) In the course of conducting an inquiry, the Court may make such orders (including an order for the recounting of votes) as the Court considers necessary.

(3) If the Court finds that an irregularity has happened, the Court may, subject to subsection (4), make one or more of the following orders:

(a) an order declaring the election, or any step in relation to the election, to be void;

(b) an order declaring a person purporting to have been elected not to have been elected, and declaring another person, to have been elected;

(c) an order directing the Industrial Registrar to make arrangements:

(i) in the case of an uncompleted election—for a step in relation to the election (including the calling for nominations) to be taken again and for the uncompleted steps in the election to be taken; or


(ii) in the case of a completed election—for a step in relation to the election (including the calling for nominations) to be taken again or a new election to be held;

(d) an order (including an order modifying the operation of the rules of the organisation to the extent necessary to enable a new election to be held, a step in relation to an election to be taken again or an uncompleted step in an election to be taken) incidental or supplementary to, or consequential on, any other order under this section.

(4) The Court shall not declare an election, or any step taken in relation to an election, to be void, or declare that a person was not elected, unless the Court is of the opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have happened or may happen, the result of the election may have been affected, or may be affected, by irregularities.

(5) Without limiting the power of the Court to terminate a proceeding before it, the Court may, at any time after it begins an inquiry into an election, terminate the inquiry or the inquiry to the extent that it relates to specified matters.

Industrial Registrar to make arrangements for conduct of elections etc.

224. Where the Court makes an order under paragraph 223 (3) (c) in relation to an election, the Industrial Registrar shall arrange for the taking of the necessary steps in relation to the election, or for the conduct of the new election, as the case requires, by the Australian Electoral Commission.

Enforcement of orders

225. The Court may grant such injunctions (including mandatory injunctions) as it considers necessary for the effective performance of its functions and the enforcement of its orders under this Division.

Validity of certain acts etc. where election declared void

226. (1) Where the Court declares void the election of a person who has, since the election, purported to act in the office to which the person purported to have been elected, or declares such a person not to have been elected:

(a) subject to a declaration under paragraph (b), all acts done by or in relation to the person that could validly have been done by or in relation to the person if the person had been duly elected are valid; and

(b) the Court may declare an act referred to in paragraph (a) to have been void, and, if the Court does so, the act shall be taken not to have been validly done.

(2) Where an election is held, or a step in relation to an election is taken, under an order of the Court, the election or step is not invalid merely


because of a departure from the rules of the organisation or branch concerned that was required by the order of the Court.

Division 6Disqualification from office

Interpretation

227. (1) In this Division:

“prescribed offence” means:

(a) an offence under a law of the Commonwealth, a State or Territory, or another country, involving fraud or dishonesty and punishable on conviction by imprisonment for a period of 3 months or more;

(b) an offence against section 313, 314, 315, 316, 317, 318 or 332;

(c) any other offence in relation to the formation, registration or management of an association or organisation; or

(d) any other offence under a law of the Commonwealth, a State or Territory, or another country, involving the intentional use of violence towards another person, the intentional causing of death or injury to another person or the intentional damaging or destruction of property.

(2) A reference in this Division to a person having been convicted of a prescribed offence includes a reference to a person having been convicted before the commencement of this section.

(3) A reference in this Division to a person being convicted of a prescribed offence does not include a reference to a person being convicted, otherwise than on indictment, of an offence referred to in paragraph (1) (c).

(4) A reference in this Division to a person being convicted of a prescribed offence does not include a reference to a person being convicted of an offence referred to in paragraph (1) (d) unless the person has served, or is serving, a term of imprisonment in relation to the offence.

(5) A certificate purporting to be signed by the registrar or other proper officer of a federal court, a court of a State or Territory, or a court of another country, stating that a person was convicted by the court of a specified offence on a specified day is, for the purpose of an application made under section 228, 229 or 230, evidence that the person was convicted of the offence on that day.

(6) A certificate purporting to be signed by the registrar or other proper officer of a federal court, a court of a State or Territory, or a court of another country, stating that a person was acquitted by the court of a specified offence, or that a specified charge against the person was dismissed by the court, is, for the purpose of an application made under section 228, 229 or 230, evidence of the facts stated in the certificate.

(7) A certificate purporting to be signed by the officer in charge of a prison stating that a person was released from the prison on a specified day


is, for the purpose of an application made under section 228, 229 or 230, evidence that the person was released from the prison on that day.

Certain persons disqualified from holding office in organisations

228. (1) A person who has been convicted of a prescribed offence is not eligible to be a candidate for an election, or to be elected or appointed, to an office in an organisation unless:

(a) on an application made under section 229 or 230 in relation to the conviction of the person for the prescribed offence:

(i) the person was granted leave to hold office in organisations; or

(ii) the person was refused leave to hold office in organisations but, under paragraph 229 (2) (b) or 230 (2) (b), the Court specified a period for the purposes of this subsection, and the period has elapsed since the person was convicted of the prescribed offence or, if the person served a term of imprisonment in relation to the prescribed offence, since the person was released from prison; or

(b) in any other case—a period of 5 years has elapsed since the person was convicted of the prescribed offence or, if the person served a term of imprisonment in relation to the prescribed offence, since the person was released from prison.

(2) Where a person who holds an office in an organisation is convicted of a prescribed offence, the person ceases to hold the office at the end of the period of 28 days after the conviction unless, within the period, the person makes an application to the Court under section 229 or 230.

(3) If a person who holds an office in an organisation makes an application to the Court under section 229 or 230 and the application is not determined:

(a) except in a case to which paragraph (b) applies—within the period of 3 months after the date of the application; or

(b) if the Court, on application by the person, has extended the period—within that period as extended;

the person ceases to hold the office at the end of the period of 3 months or the period as extended, as the case may be.

(4) The Court shall not, under paragraph (3) (b), extend a period for the purposes of subsection (3) unless:

(a) the application for the extension is made before the end of the period of 3 months referred to in paragraph (3) (a); or

(b) if the Court has previously extended the period under paragraph (3) (b)—the application for the further extension is made before the end of the period as extended.


(5) An organisation, a member of an organisation or the Industrial Registrar may apply to the Court for a declaration whether, because of the operation of this section or section 229 or 230:

(a) a person is not, or was not, eligible to be a candidate for election, or to be elected or appointed, to an office in the organisation; or

(b) a person has ceased to hold an office in the organisation.

(6) The granting to a person, on an application made under section 229 or 230 in relation to a conviction of the person for a prescribed offence, of leave to hold offices in organisations does not affect the operation of this section or section 229 or 230 in relation to another conviction of the person for a prescribed offence.

Application for leave to hold office in organisations by prospective candidate for office

229. (1) A person who:

(a) wants to be a candidate for election, or to be appointed, to an office in an organisation; and

(b) has been, within the immediately preceding period of 5 years, convicted of a prescribed offence or released from prison after serving a term of imprisonment in relation to a conviction for a prescribed offence;

may, subject to subsection (4), apply to the Court for leave to hold office in organisations.

(2) Where a person makes an application under subsection (1), the Court may:

(a) grant the person leave to hold office in organisations;

(b) refuse the person leave to hold office in organisations and specify, for the purposes of subsection 228 (1), a period of less than 5 years; or

(c) refuse a person leave to hold office in organisations.

(3) A person who:

(a) holds an office in an organisation;

(b) is convicted of a prescribed offence; and

(c) on an application made under subsection (1) in relation to the conviction for the prescribed offence, is, under paragraph (2) (b) or (c), refused leave to hold office in organisations;

ceases to hold the office in the organisation.

(4) A person is not entitled to make an application under this section in relation to the person’s conviction for a prescribed offence if the person has previously made an application under this section or under section 230 in relation to the conviction.


Application for leave to hold office in organisations by office holder

230. (1) Where a person who holds an office in an organisation is convicted of a prescribed offence, the person may, subject to subsection (4), within 28 days after the conviction, apply to the Court for leave to hold office in organisations.

(2) Where a person makes an application under subsection (1) for leave to hold office in organisations, the Court may:

(a) grant the person leave to hold office in organisations;

(b) refuse the person leave to hold office in organisations and specify, for the purposes of subsection 228 (1), a period of less than 5 years; or

(c) refuse the person leave to hold office in organisations.

(3) A person who, on an application made under subsection (1), is, under paragraph (2) (b) or (c), refused leave to hold office in organisations ceases to hold the office concerned.

(4) A person is not entitled to make an application under this section in relation to the person’s conviction for a prescribed offence if the person has previously made an application under this section or section 229 in relation to the conviction.

Court to have regard to certain matters

231. For the purposes of exercising the power under section 229 or 230 to grant or refuse leave, to a person who has been convicted of a prescribed offence, to hold office in organisations, the Court shall have regard to:

(a) the nature of the prescribed offence;

(b) the circumstances of, and the nature of the person’s involvement in, the commission of the prescribed offence;

(c) the general character of the person;

(d) the fitness of the person to be involved in the management of organisations, having regard to the conviction for the prescribed offence; and

(e) any other matter that, in the Court’s opinion, is relevant.

Action by Court

232. (1) The Court may, in spite of anything in the rules of any organisation concerned, make such order to give effect to a declaration made under subsection 228 (5) as it considers appropriate.

(2) Where an application is made to the Court under subsection 228 (5):

(a) the person whose eligibility, or whose holding of office, is in question shall be given an opportunity of being heard by the Court; and

(b) if the application is made otherwise than by the organisation concerned—the organisation shall be given an opportunity of being heard by the Court.


(3) Where an application is made to the Court under section 229 or 230, the organisation concerned shall be given an opportunity of being heard by the Court.

Division 7—Amalgamation of organisations

Interpretation

233. In this Division:

“alternative prevision” means a provision of the kind referred to in subsection 235 (4);

“amalgamated organisation”, in relation to a proposed amalgamation that has taken effect, means the organisation of which members of the organisations that were proposed de-registering organisations have, under paragraph 249 (3) (d), become members;

“de-registration”, in relation to an organisation, means the cancellation of the registration of the organisation;

“proposed alternative amalgamation”, in relation to a scheme for a proposed amalgamation that contains an alternative provision, means an amalgamation proposed to be made under an alternative provision;

“proposed amalgamated organisation”, in relation to a proposed amalgamation, means the organisation or proposed organisation of which members of the proposed de-registering organisations are proposed to become members;

“proposed amalgamation” means the proposed carrying out of arrangements in relation to 2 or more organisations under which:

(a) an organisation is, or 2 or more organisations are, to be de-registered at the request of the organisation or organisations;

(b) members of the organisation or organisations to be de-registered are to become members of another organisation (whether existing or proposed);

(c) property of the organisation or organisations to be de-registered is to become the property of the other organisation; and

(d) liabilities of the de-registered organisation or organisations are to be satisfied by the other organisation;

“proposed de-registering organisation”, in relation to a proposed amalgamation, means an organisation that is, under the amalgamation, to be de-registered;

“proposed principal amalgamation”, in relation to a scheme for a proposed amalgamation, means:

(a) if the scheme contains an alternative provision—the amalgamation proposed to be made under the scheme otherwise than under an alternative provision; or

(b) in any other case—the proposed amalgamation.


Procedure to be followed for proposed amalgamation etc.

234. (1) For the purpose of implementing a proposed amalgamation, the procedure provided by this Division shall be followed.

(2) Where it appears to a Presidential Member that the performance of an act, including:

(a) the de-registration of an organisation;

(b) the registration of an organisation; and

(c) the giving of consent to:

(i) a change in the name of an organisation; or

(ii) an alteration of the eligibility rules of an organisation;

is sought for the purposes of a proposed amalgamation, the Presidential Member shall not perform the act otherwise than under this Division.

Application for approval to be lodged

235. (1) The existing organisations concerned in a proposed amalgamation, and any association proposed to be registered as an organisation under the amalgamation, shall jointly lodge in the Industrial Registry an application for the approval of a designated Presidential Member for the submission of the amalgamation to ballot.

(2) The application shall include a scheme for the amalgamation, setting out the prescribed particulars of the amalgamation.

(3) A copy of:

(a) the rules of any association proposed to be registered as an organisation; and

(b) any proposed alterations of the rules of the existing organisations; shall be lodged with the application.

(4) If 3 or more existing organisations are concerned in the amalgamation, the scheme for the amalgamation may contain a provision to the effect that, if:

(a) the members of one or more of the organisations do not approve the amalgamation; and

(b) the members of 2 or more of the organisations (including, where one of the organisations is a party to the amalgamation otherwise than as a de-registering organisation, that organisation) approve both the amalgamation so far as it involves all the organisations concerned and, in the alternative, the amalgamation so far as it involves the other organisation or 2 or more of the other organisations;

there may be an amalgamation involving the organisations the members of which give their approval.

(5) If the scheme for the amalgamation contains an alternative provision, the scheme shall also set out particulars of the differences between the proposed principal amalgamation and each proposed alternative amalgamation


and the differences between any rules referred to in paragraph (3) (a) or any proposed alterations referred to in paragraph (3) (b).

Consideration of form of application etc.

236. (1) If a designated Presidential Member is satisfied:

(a) that the form of the application lodged under section 235 in relation to the proposed amalgamation complies with this Act and the Rules of the Commission;

(b) that the documents that, under this Act and the Rules of the Commission, are required to be lodged with the application have been lodged, and comply with this Act and the Rules of the Commission;

(c) that the committee of management of each of the existing organisations concerned in the amalgamation has passed a resolution approving the amalgamation; and

(d) that any proposed alterations of the rules of an existing organisation concerned in the amalgamation have been made under the rules of the organisation;

the Presidential Member shall accept the application.

(2) If the Presidential Member is not satisfied, the Presidential Member shall, subject to subsections (3) and (5), dismiss the application.

(3) If, apart from this subsection, the Presidential Member would be required to dismiss the application, the Presidential Member may adjourn the proceeding.

(4) Subsection (3) shall not be taken to limit by implication the power of the Presidential Member to adjourn the proceeding at any stage.

(5) If, apart from this subsection, the Presidential Member would be required to dismiss the application, the Presidential Member may:

(a) permit the applicants to amend the application and any documents lodged with the application; or

(b) permit the applicants to lodge documents in relation to the application;

and, if the Presidential Member is then satisfied as to the matters referred to in subsection (1), the Presidential Member shall accept the application.

Notification of hearing in relation to proposed amalgamation

237. If the Presidential Member accepts the application lodged under section 235 in relation to the proposed amalgamation, the Presidential Member:

(a) shall immediately fix a time and place for the hearing of submissions in relation to:

(i) the making of a declaration under section 239 in relation to the application; and


(ii) the granting of an approval under section 240 in relation to the application;

(b) shall ensure that all organisations are promptly notified of the time and place of the hearing; and

(c) may inform any other person who is likely to be interested of the time and place of the hearing.

Submissions

238. (1) Submissions to a hearing arranged under section 237 in relation to the proposed amalgamation may only be made under this section.

(2) Submissions may be made only with the leave of a designated Presidential Member and in relation to a prescribed matter.

Community of interest declaration

239. (1) If, at the conclusion of the hearing arranged under section 237 in relation to the proposed amalgamation, a designated Presidential Member is satisfied:

(a) that the amalgamation would further the objects of this Act; and

(b) that there is a community of interest between the organisations concerned in the amalgamation in relation to their industrial interests;

the Presidential Member shall declare that he or she is satisfied as to those matters.

(2) The Presidential Member shall be satisfied, for the purposes of paragraph (1) (b), that there is a community of interest between organisations of employees in relation to their industrial interests if, and only if, the Presidential Member is satisfied that a substantial number of members of each of the organisations are:

(a) eligible to become members of the other organisation or each of the other organisations;

(b) engaged in the same work, in aspects of the same work or similar work;

(c) bound by the same awards;

(d) employed in the same or similar work by employers engaged in the same industry; or

(e) engaged in work, or in industries, in relation to which there is a community of interest.

(3) The Presidential Member shall be satisfied, for the purposes of paragraph (1) (b), that there is a community of interest between organisations of employers in relation to their industrial interests if, and only if, the Presidential Member is satisfied that a substantial number of members of each of the organisations are:

(a) eligible to become members of the other organisation or each of the other organisations;


(b) engaged in the same industry, in aspects of the same industry or in similar industries;

(c) bound by the same awards; or

(d) engaged in industries in relation to which there is a community of interest.

Approval for submission to ballot of amalgamation not involving extension of eligibility rules etc.

240. (1) If, at the conclusion of the hearing arranged under section 237 in relation to the proposed amalgamation, a designated Presidential Member is satisfied:

(a) that the amalgamation does not involve the registration of an association as an organisation;

(b) that a person who is not eligible for membership of an existing organisation concerned in the proposed amalgamation would not be eligible for membership of the proposed amalgamated organisation immediately after the proposed amalgamation takes effect;

(c) that any proposed alteration of the name of an existing organisation concerned in the amalgamation will not result in the organisation having a name that is the same as the name of another organisation or is so similar to the name of another organisation as to be likely to cause confusion;

(d) that any proposed alterations of the rules of an existing organisation concerned in the amalgamation comply with, and are not contrary to, this Act and awards and are not otherwise contrary to law; and

(e) that any proposed de-registration of an existing organisation complies with this Act and is not otherwise contrary to law;

the Presidential Member shall approve the submission of the amalgamation to ballot.

(2) If the Presidential Member is not satisfied, the Presidential Member:

(a) shall, subject to subsections (3) and (5), refuse to approve, under this section, the submission of the amalgamation to ballot; and

(b) shall cause the Industrial Registrar to publish in the Gazette notice of the making of the application together with a copy of the proposed scheme.

(3) If, apart from this subsection, the Presidential Member would be required to refuse to approve the submission of the amalgamation to ballot, the Presidential Member may adjourn the proceeding.

(4) Subsection (3) shall not be taken to limit by implication the power of the Presidential Member to adjourn the proceeding at any stage.

(5) If, apart from this subsection, the Presidential Member would be required to refuse to approve the submission of the amalgamation to ballot, the Presidential Member may:

(a) permit the applicants to amend the scheme; or


(b) permit the applicants to amend any proposed alterations of the rules of the existing organisations concerned in the amalgamation;

and, if the Presidential Member is then satisfied as to the matters referred to in subsection (1), shall approve the submission of the amalgamation to ballot.

(6) The notice under paragraph (2) (b) shall, as prescribed, notify persons of the right to object to any proposed amalgamation to which the scheme relates.

Objections in relation to amalgamation involving extension of eligibility rules etc.

241. (1) Objection to a matter involved in the proposed amalgamation may only be made to the Commission under this section.

(2) Objection may be made to the Commission in relation to the amalgamation only if a designated Presidential Member has refused to approve, under section 240, the submission of the amalgamation to ballot.

(3) Objection may be made by a prescribed person on a prescribed ground.

(4) A designated Presidential Member shall, as prescribed, hear all objections duly made to the amalgamation.

Approval for submission to ballot of amalgamation involving extension of eligibility rules etc.

242. (1) If, after the prescribed time allowed for the making of objections under section 241 and after hearing any objections duly made to the proposed amalgamation, a designated Presidential Member:

(a) finds that no duly made objection is justified; and

(b) is satisfied that, so far as the amalgamation involves:

(i) the registration of an association;

(ii) a change in the name of an organisation;

(iii) an alteration of the rules of an association; or

(iv) the de-registration of an organisation at the request of the organisation;

it complies with, and is not contrary to, this Act and awards and is not otherwise contrary to law;

the Presidential Member shall approve the submission of the amalgamation to ballot.

(2) If the Presidential Member is not satisfied, the Presidential Member shall, subject to subsections (3) and (5), refuse to approve, under this section, the submission of the amalgamation to ballot.

(3) If, apart from this subsection, the Presidential Member would be required to refuse to approve the submission of the amalgamation to ballot, the Presidential Member may adjourn the proceeding.


(4) Subsection (3) shall not be taken to limit by implication the power of the Presidential Member to adjourn the proceeding at any stage.

(5) If, apart from this subsection, the Presidential Member would be required to refuse to approve the submission of the amalgamation to ballot, the Presidential Member may:

(a) permit the applicants to amend the scheme; or

(b) permit the applicants to amend:

(i) the rules of any association proposed to be registered as an organisation; or

(ii) any proposed alterations of the rules of the existing organisations concerned in the amalgamation;

and, if the Presidential Member is then satisfied as to the matters referred to in subsection (1), shall approve the submission of the amalgamation to ballot.

Ballot of members

243. (1) If a designated Presidential Member approves, under section 240 or 242, the submission of the proposed amalgamation to ballot, the Industrial Registrar shall arrange for the conduct by the Australian Electoral Commission, in relation to each of the existing organisations concerned in the amalgamation, of a secret postal ballot of the members of the organisation on the question whether they approve the proposed principal amalgamation.

(2) If the scheme for the amalgamation contains a proposed alternative provision, the Industrial Registrar shall also arrange for the conduct, at the same time and in the same manner as the ballot under subsection (1), of a ballot of the members of each of the existing organisations on the question or questions whether, if the proposed principal amalgamation does not take place, they approve the proposed alternative amalgamation or each of the proposed alternative amalgamations, as the case requires.

(3) If, under subsection (2), the Industrial Registrar is required to arrange for the conduct of 2 or more ballots of the members of an organisation at the same time, the ballot papers for both or all ballots shall be on the same piece of paper.

(4) A person conducting a ballot under subsection (2) shall not count the votes in the ballot unless the person is satisfied