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Workplace Relations Act 1996

  • - C2004C04800
  • In force - Superseded Version
  • View Series
Act No. 86 of 1988 as amended, taking into account amendments up to Act No. 77 of 1996
Registered 27 Nov 2009
Start Date 01 Jan 1997
End Date 10 Dec 1997

Workplace Relations Act 1996

Consolidated to 20 January 1997

 


Contents

Part I—Preliminary                                                                                   1

1  Short title............................................................................................................ 1

2  Commencement................................................................................................... 1

3  Principal object of this Act................................................................................. 1

4  Interpretation...................................................................................................... 2

5  Additional operation of Act.............................................................................. 16

5AA  Additional operation of Act—certified agreements.................................... 19

5A  Special provision for industrial disputes in the Australia-Indonesia Zone of Cooperation   20

6  Application to Crown....................................................................................... 20

7  Extension to Christmas Island.......................................................................... 20

7A  Act not to apply so as to exceed Commonwealth power.............................. 21

Part II—Australian Industrial Relations Commission                           22

Division 1—Establishment of Commission                                                                22

8  Establishment of Commission.......................................................................... 22

9  Appointment of Commission members etc...................................................... 22

10  Qualifications for appointment....................................................................... 22

11  Seniority.......................................................................................................... 23

12  Performance of duties on part-time basis....................................................... 24

13  Dual federal and State appointments.............................................................. 25

14  Performance of duties by dual federal and State appointees.......................... 25

15  Dual federal appointments.............................................................................. 26

15A  Appointment of a Judge as President not to affect tenure etc..................... 26

16  Tenure of Commission members.................................................................... 26

17  Acting President.............................................................................................. 27

17A  Acting Vice President................................................................................... 27

17B  Acting Senior Deputy President.................................................................. 28

18  Acting Deputy Presidents.............................................................................. 29

19  Oath or affirmation of office........................................................................... 29

19A  Discharge of Commission’s business........................................................... 29

20  Duty of Commission members....................................................................... 29

21  Remuneration and allowances of Presidential Members etc........................... 29

22  Application of Judges’ Pensions Act............................................................. 32

23  Remuneration and allowances of Commissioners........................................... 33

24  Removal of Presidential Member from office................................................. 33

25  Outside employment of Commissioner.......................................................... 34

26  Leave of absence of Commissioner................................................................. 34

27  Disclosure of interest by Commission members............................................ 34

28  Termination of appointment of Commissioner.............................................. 35

29  Resignation by Commission member.............................................................. 36

Division 2—Organisation of Commission                                                                 37

30  Manner in which Commission may be constituted........................................ 37

31  Powers exercisable by single member of Commission.................................... 37

32  Functions and powers conferred on members................................................ 37

33  Powers may be exercised of Commission’s own motion or on application... 37

34  Continuation of hearing by Commission........................................................ 38

35  Commission divided in opinion...................................................................... 38

36  Arrangement of business of Commission....................................................... 39

37  Panels of Commission for particular industries.............................................. 40

38  Vice President’s Panel..................................................................................... 40

39  Conference of Commission members.............................................................. 41

40  Delegation by President.................................................................................. 41

41  Protection of Commission members............................................................... 41

Division 3—Representation and intervention                                                            42

42  Representation of parties before Commission................................................ 42

43  Intervention generally..................................................................................... 43

44  Particular rights of intervention of Minister................................................... 43

Division 4—Appeals to Full Bench and references to Court                                  45

45  Appeals to Full Bench.................................................................................... 45

46  References to Court by Commission on question of law............................... 47

Division 5—Miscellaneous                                                                                           48

47  Seals of Commission....................................................................................... 48

48  Rules of Commission...................................................................................... 48

49  Annual report of Commission........................................................................ 49

Part IV—Australian Industrial Registry                                                50

Division 1A—Interpretation                                                                                         50

61A  Definition of State industrial body............................................................... 50

Division 1—Establishment and functions of Australian Industrial Registry      51

62  Australian Industrial Registry......................................................................... 51

63  Functions of the Industrial Registry............................................................... 51

64  Registries......................................................................................................... 53

65  Seals of the Registry....................................................................................... 53

66  Annual report of Industrial Registry.............................................................. 53

Division 2—Registrars                                                                                                  54

67  Industrial Registrar.......................................................................................... 54

68  Tenure of office of Industrial Registrar........................................................... 55

69  Remuneration and allowances of Industrial Registrar..................................... 55

70  Outside employment of Industrial Registrar.................................................. 56

71  Disclosure of interests by Industrial Registrar............................................... 56

72  Leave of absence of Industrial Registrar......................................................... 56

73  Resignation by Industrial Registrar................................................................. 57

74  Termination of appointment of Industrial Registrar....................................... 57

75  Deputy Industrial Registrars.......................................................................... 57

76  Acting Industrial Registrar.............................................................................. 58

77  Acting Deputy Industrial Registrars............................................................... 59

78   Oath or affirmation of office of Registrar...................................................... 59

Division 3—References and appeals                                                                           60

79  References by Registrar to Commission......................................................... 60

80  Removal of matters before Registrar............................................................... 60

81  Appeals from Registrar to Commission......................................................... 60

82  References to Court by Registrar on question of law..................................... 61

Division 4—Staff                                                                                                             62

83  Staff... 62

Part IVA—The Employment Advocate                                                  63

Division 1—Functions, powers etc. of the Employment Advocate                           63

83BA  The Employment Advocate...................................................................... 63

83BB  Functions................................................................................................... 63

83BC  Minister’s directions to Employment Advocate....................................... 64

83BD  Staff........................................................................................................... 64

83BE  Delegation by Employment Advocate....................................................... 64

83BF  Annual report............................................................................................. 65

Division 2—Authorised officers                                                                                  66

83BG  Appointment of authorised officers.......................................................... 66

83BH  Powers of authorised officers.................................................................... 66

Division 3—Appointment, conditions of appointment etc. of Employment Advocate                   69

83BI  Appointment of Employment Advocate.................................................... 69

83BJ  Remuneration and allowances..................................................................... 69

83BK  Outside employment................................................................................. 69

83BL  Recreation leave etc.................................................................................... 69

83BM  Resignation............................................................................................... 69

83BN  Disclosure of interests............................................................................... 70

83BO  Termination of appointment..................................................................... 70

83BP  Acting appointment................................................................................... 71

83BQ  Other terms and conditions of appointment............................................. 71

Division 4—Miscellaneous                                                                                           72

83BS  Identity of AWA parties not to be disclosed............................................. 72

83BT  Publication of AWAs etc. by Employment Advocate.............................. 72

Part V—Inspectors 73

84  Inspectors....................................................................................................... 73

85  Identity cards.................................................................................................. 73

86  Powers of inspectors...................................................................................... 74

87  Inspector to investigate matters affecting safety of employees..................... 75

88  Annual report.................................................................................................. 75

Part VI—Dispute Prevention and Settlement                                        76

Division 1A—Objects of Part                                                                                       76

88A  Objects of Part............................................................................................. 76

Division 1—Functions of Commission generally                                                     77

88B  Performance of Commission’s functions under this Part............................. 77

89  General functions of Commission................................................................... 77

89A  Scope of industrial disputes......................................................................... 78

90  Commission to take into account the public interest...................................... 80

90A   Commission to have regard to operation of Superannuation Guarantee legislation when making National Wage Case decision............................................................................................................ 81

91  Commission to encourage agreement on procedures for preventing and settling disputes      81

92  Commission to have regard to compliance with disputes procedures............ 81

93  Commission to take account of Racial Discrimination Act, Sex Discrimination Act and Disability Discrimination Act          81

93A  Commission to take account of Family Responsibilities Convention......... 82

94  Limitation on powers of Commission relating to discrimination and preference................... 82

95  No automatic flow-on of terms of certain agreements.................................... 82

96  Schemes of apprenticeship............................................................................. 82

97  Safety, health and welfare of employees........................................................ 82

98  Commission to act quickly............................................................................. 83

98A  Commission to avoid technicalities and facilitate fair conduct of proceedings 83

Division 2—Powers and procedures of Commission for dealing with industrial disputes        84

99  Notification of industrial disputes.................................................................. 84

100  Disputes to be dealt with by conciliation where possible............................ 84

101  Findings as to industrial disputes................................................................. 85

102  Action to be taken where dispute referred for conciliation........................... 85

103  Completion of conciliation proceeding......................................................... 85

104  Arbitration.................................................................................................... 86

105  Exercise of arbitration powers by member who has exercised conciliation powers              87

106  Allowable award matters to be dealt with by Full Bench............................. 87

107  Reference of disputes to Full Bench............................................................. 88

108  President may deal with certain proceedings................................................ 90

109  Review on application by Minister.............................................................. 92

110  Procedure of Commission............................................................................. 92

Division 3—Particular powers of Commission                                                         94

111  Particular powers of Commission................................................................. 94

111AAA  Commission to cease dealing with industrial dispute in certain circumstances            96

111AA  Recommendations by consent................................................................ 97

111A  Hearings in relation to discriminatory awards........................................... 97

113  Power to set aside or vary awards................................................................ 98

113A  Commission to include enterprise flexibility provisions in awards........... 99

113B  Variation of award to give effect to agreement negotiated under enterprise flexibility provision                99

114  Power to make further awards in settlement of industrial dispute etc....... 100

118A  Orders about representation rights of organisations of employees......... 100

119  Compulsory conferences............................................................................ 102

120  Relief not limited to claim........................................................................... 103

120A  Orders of Commission on exceptional matters........................................ 103

120B  Commission to report on junior rates of pay........................................... 103

121  Power to override certain laws affecting public sector employment.......... 104

123  Power to provide special rates of wages..................................................... 105

124  Commission not to deal with claims for payments in relation to periods of industrial action                       105

126  Stand-down applications............................................................................ 105

127  Orders to stop or prevent industrial action................................................ 106

127AA  Awards and orders dealing with rights of entry.................................... 107

127A  Unfair contracts with independent contractors: Court’s powers............ 107

127B  Court may make orders about unfair contracts........................................ 109

127C  Application of sections 127A and 127B.................................................. 109

128  State authorities may be restrained from dealing with disputes................. 110

129  Joint sessions of Commission..................................................................... 110

130  Reference of industrial dispute to local industrial board for report............ 111

131  Boards of reference..................................................................................... 111

132  Discussions about conciliation and arbitration processes........................... 111

133  Industry consultative councils.................................................................... 112

134  Power of inspection.................................................................................... 112

Division 4—Ballots ordered by Commission                                                           114

135  Commission may order secret ballot........................................................... 114

136  Application by members of organisation for secret ballot.......................... 115

137  Scope of directions for secret ballots.......................................................... 119

138  Conduct of ballot........................................................................................ 119

139  Commission to have regard to result of ballot............................................ 120

140  Certain members not required to obey directions of organisation.............. 120

Division 5—Common rules                                                                                         122

141  Common rules............................................................................................. 122

142  Variation of common rules.......................................................................... 123

Division 6—Awards of Commission                                                                          125

143  Making and publication of awards etc........................................................ 125

144  Form of awards........................................................................................... 128

145  Date of awards............................................................................................ 128

146  Commencement of awards.......................................................................... 129

147  Term of awards........................................................................................... 129

148  Continuation of awards............................................................................... 129

149  Persons bound by awards........................................................................... 129

150  Awards of Commission are final................................................................. 130

151  Registrar to review operation of awards..................................................... 131

152  Awards to prevail over State laws and State awards.................................. 131

153  Validity of State laws and State awards...................................................... 133

154  Reprints of awards as varied....................................................................... 133

155  Expressions used in awards........................................................................ 133

Division 7—Disputes relating to boycotts                                                                134

156  Application of Division.............................................................................. 134

157  Notification of disputes.............................................................................. 134

158  Powers of Commission............................................................................... 134

159  Exercise of powers...................................................................................... 135

160  Parties......................................................................................................... 135

161  Application of other provisions of Act...................................................... 136

162  Trade Practices Act and application laws not affected............................... 136

163  Interpretation.............................................................................................. 136

166A  Restriction on certain actions in tort........................................................ 136

Part VIA—Minimum Entitlements of Employees                                139

Division 2—Equal remuneration for work of equal value                                     139

170BA  Object.................................................................................................... 139

170BB  Equal remuneration for work of equal value.......................................... 139

170BC  Orders requiring equal remuneration...................................................... 139

170BD  Orders only on application................................................................... 140

170BE  No order if adequate alternative remedy exists...................................... 140

170BF  Immediate or progressive introduction of equal remuneration............... 140

170BG  Employer not to reduce remuneration................................................... 141

170BH  Division not to limit other rights........................................................... 141

170BHA  Applications under this Division....................................................... 141

170BI  Additional effect of Division.................................................................. 142

Division 3—Termination of employment                                                                  143

Subdivision A—Object, application and definitions                                               143

170CA  Object.................................................................................................... 143

170CB  Application............................................................................................ 143

170CC  Regulations may exclude employees..................................................... 145

170CD  Definitions............................................................................................. 146

Subdivision B—Application to Commission for relief in respect of termination of employment                      146

170CE  Application to Commission to deal with termination under this Subdivision                  146

170CF  Conciliation............................................................................................ 148

170CFA  Elections to proceed to arbitration or to begin court proceedings...... 148

170CG  Arbitration............................................................................................. 150

170CH  Remedies on arbitration......................................................................... 151

170CI  Orders made on arbitration are binding................................................... 154

170CJ  Commission may order payment of costs.............................................. 154

Subdivision C—Unlawful termination of employment by employer                    155

170CK  Employment not to be terminated on certain grounds.......................... 155

170CL  Employer to notify CES of proposed terminations in certain cases..... 156

170CM  Employer to give notice of termination................................................ 157

170CN     Employer not to contravene Commission order about employment termination       159

170CO  Contravention of this Subdivision not an offence................................. 159

170CP  Application to courts in relation to alleged contravention of section 170CK, 170CL, 170CM or 170CN                        159

170CQ  Proof of issues in relation to alleged contravention of section 170CK. 160

170CR  Orders available to courts...................................................................... 160

170CS  Costs...................................................................................................... 161

170CT  Small claims procedure.......................................................................... 162

Subdivision D—Commission orders giving effect to Articles 12 and 13 of Convention            162

170FA  Employment termination orders creating rules of general application.. 162

170FB  Orders only on application.................................................................... 163

170FC  No order if alternative exists.................................................................. 163

170FD  Powers and procedures of Commission for dealing with applications.. 163

170FE  Commission’s powers not limited by Subdivision E............................. 163

Subdivision E—Commission orders after employer fails to consult trade union about terminations              163

170GA  Orders by Commission where employer fails to consult trade union about terminations                        163

170GB  Orders only on application................................................................... 164

170GC  No order if alternative remedy exists.................................................... 165

170GD  Powers and procedures of Commission for dealing with applications. 165

Subdivision F—Other rights relating to termination of employment                165

170HA  Division not to limit other rights.......................................................... 165

170HB  Applications alleging harsh, unjust or unreasonable termination.......... 165

170HC  Applications alleging contravention of section 170CK......................... 166

Division 4—Orders and proceedings                                                                        168

170JA  Orders to be in writing........................................................................... 168

170JB  When orders take effect.......................................................................... 168

170JC  Compliance with orders.......................................................................... 168

170JD  Variation and revocation of orders......................................................... 168

170JE  Application of sections 109, 110, 111, 128 and 129 to orders and proceedings under this Part                169

170JEA  Representation of employers............................................................... 169

170JF  Appeals to Full Bench............................................................................ 169

170JG  Inconsistency with awards or other orders of Commission................... 169

170JH  Validity of State laws, awards etc.......................................................... 170

Division 5—Parental leave                                                                                          171

170KA  Effect of Division.................................................................................. 171

170KB  Application of Schedule 14................................................................... 172

170KC  Regulations may prescribe adoption leave............................................ 172

Part VIB—Certified agreements                                                          173

Division 1—Preliminary                                                                                             173

170L  Object....................................................................................................... 173

170LA  Functions of Commission...................................................................... 173

170LB  Single business and single employer...................................................... 173

170LC  Additional operation of Part.................................................................. 174

170LD  Nominal expiry date.............................................................................. 175

170LE  Valid majority......................................................................................... 175

170LF  Working day........................................................................................... 176

170LG  Paid rates award..................................................................................... 176

Division 2—Making agreements with constitutional corporations or the Commonwealth      177

170LH  What this Division covers..................................................................... 177

170LI  Nature of agreement................................................................................ 177

170LJ  Agreement with organisations of employees.......................................... 177

170LK  Agreement with employees................................................................... 178

170LL  Greenfields agreement............................................................................ 179

170LM  Making the application for certification............................................... 179

Division 3—Making agreements about industrial disputes and industrial situations              181

170LN  What this Division covers..................................................................... 181

170LO  Agreement about industrial dispute....................................................... 181

170LP  Agreement about industrial situation..................................................... 181

170LQ  Multiple disputes and situations........................................................... 181

170LR  Approval by valid majority of employees............................................ 182

170LS  Making the application for certification................................................. 182

Division 4—Certifying agreements                                                                          183

170LT  Certifying an agreement......................................................................... 183

170LU  When Commission to refuse to certify an agreement............................ 184

170LV  Other options open to Commission instead of refusing to certify an agreement             186

170LW  Procedures for preventing and settling disputes................................... 187

Division 5—Effect of certified agreements                                                              188

170LX  When a certified agreement is in operation............................................ 188

170LY  Effect of a certified agreement in relation to awards and other certified agreements        188

170LZ  Effect of a certified agreement on Commonwealth laws or State laws, awards or agreements                  189

Division 6—Persons bound by certified agreements                                             191

170M  Persons bound in Division 2 cases.......................................................... 191

170MA  Persons bound in Division 3 cases....................................................... 191

170MB  Successor employers bound................................................................. 192

Division 7—Extending, varying or terminating certified agreements               193

170MC  Extending the nominal expiry date....................................................... 193

170MD  Varying a certified agreement............................................................... 193

170MDA  Variation where discrimination between unionists and non‑unionists 194

170ME  Other options open to Commission instead of refusing to approve variation of an agreement               195

170MG  Terminating a certified agreement where valid majority approve at any time                196

170MH  Terminating a certified agreement in public interest after nominal expiry date              196

170MHA  Terminating an agreement in a way provided under agreement after nominal expiry date                    197

Division 8—Negotiations for certified agreements etc.                                        198

170MI  Initiation of bargaining period................................................................ 198

170MJ  Particulars to accompany notice........................................................... 199

170MK  When bargaining period begins............................................................. 199

170ML  Protected action.................................................................................... 199

170MM  Industrial action must not involve secondary boycott....................... 201

170MN  Industrial action etc. must not be taken until after nominal expiry date of certain agreements and awards                      201

170MO  Notice of action to be given................................................................. 202

170MP  Negotiation must precede industrial action or lockout......................... 204

170MQ  What happens if Commission orders a ballot...................................... 204

170MR  Industrial action must be duly authorised............................................ 205

170MS  What happens if application to certify agreement is not made within 21 days              206

170MT  Immunity provisions............................................................................ 206

170MU  Employer not to dismiss employee etc. for engaging in protected action 207

170MV  When bargaining period ends................................................................ 207

170MW  Power of Commission to suspend or terminate bargaining period...... 208

170MX  What happens if Commission terminates a bargaining period under subsection 170MW(3) or (7)        210

170MY  Commission’s powers where section 170MX applies........................ 211

170MZ  Awards under section 170MX............................................................. 211

170N  Commission not to arbitrate during bargaining period............................. 213

170NA  Conciliation in respect of agreements................................................... 213

170NB  Employers not to discriminate between unionist and non‑unionist...... 213

Division 9—Prohibition of coercion in relation to agreements                           215

170NC  Coercion of persons to make, vary or terminate certified agreements etc. 215

Division 10—Enforcement and remedies                                                                 216

170ND  Penalty provisions................................................................................ 216

170NE  Eligible court.......................................................................................... 216

170NF  Penalties for contravening penalty provisions...................................... 216

170NG  Injunctions............................................................................................ 217

170NH  Reinstatement and compensation where employer contravenes section 170MU           218

Division 11—Miscellaneous                                                                                       219

170NI  Complementary State laws..................................................................... 219

Part VID—Australian workplace agreements (AWAs)                       220

Division 1—Preliminary                                                                                             220

170VA  Interpretation........................................................................................ 220

170VB  Proposed AWAs and ancillary documents—interpretation.................. 222

170VC  Scope of this Part.................................................................................. 222

170VCA  Functions of Commission................................................................... 222

Division 2—General rules about AWAs and ancillary documents                     224

170VD  AWAs and ancillary documents only have effect as provided by this Part................... 224

170VE  Collective agreements............................................................................. 224

Division 3—Making, varying or terminating an AWA                                         225

170VF  Employer and employee may make an AWA....................................... 225

170VG  Content of AWA................................................................................... 225

170VH  Nominal expiry date of AWA............................................................... 225

170VJ  Period of operation of AWA.................................................................. 226

170VK  Bargaining agents................................................................................... 226

170VL  Varying the terms of an AWA............................................................... 227

170VM  Terminating an AWA........................................................................... 227

Division 4—Filing AWAs and ancillary documents with Employment Advocate 229

170VN  Filing AWAs and ancillary documents with Employment Advocate... 229

170VO  Filing requirements................................................................................ 229

170VP  Employer’s declaration must be accurate.............................................. 231

Division 5—Approval of AWAs and ancillary documents                                     232

Subdivision A—Preliminary                                                                                      232

170VPA  Additional approval requirements for AWA and ancillary documents 232

Subdivision B—Approval by Employment Advocate                                               233

170VPB  Approval of AWA by Employment Advocate.................................. 233

170VPC  Approval of variation agreement by Employment Advocate............. 234

170VPD  Approval of other ancillary documents by Employment Advocate.. 235

170VPE  Protocol for referring AWAs and variation agreements to the Commission                  235

170VPF  Employment Advocate must issue approval, refusal or referral notice 235

Subdivision C—Approval by Commission                                                                236

170VPFA  Withdrawal of AWA or variation agreement.................................... 236

170VPG  Approval of AWA by Commission................................................... 236

170VPH  Approval of variation agreement by Commission.............................. 236

170VPI  Commission must issue approval or refusal notice etc........................ 237

Subdivision D—Miscellaneous                                                                                  238

170VPJ  Undertakings deemed to be included in AWA..................................... 238

170VPK  Employment Advocate to issue copies of approved AWAs and ancillary documents 238

Division 6—Effect of an AWA                                                                                    239

170VQ  Effect of AWA on awards and agreements........................................... 239

170VR  Effect of AWA on other laws................................................................ 240

170VS  AWA binds employer’s successor......................................................... 241

170VT  Parties must not breach AWA............................................................... 241

170VU  Industrial action etc. by party to AWA................................................ 242

Division 7—Enforcement and remedies                                                                   243

170VV  Penalties for contravening this Part....................................................... 243

170VW  Damages for breach of AWA................................................................ 243

170VX  Compensation to new employee for shortfall in entitlements.............. 243

170VZ  Injunctions............................................................................................. 244

170W  Interest on judgment etc.......................................................................... 244

170WA  Small claims procedure......................................................................... 244

Division 8—Limited immunity for industrial action                                              245

170WB  Interpretation........................................................................................ 245

170WC  Limited immunity conferred................................................................. 246

170WD  Immunity conditional on giving notice................................................. 246

170WE  Employer not to dismiss, prejudice etc. an employee for taking AWA industrial action                         246

Division 9—Miscellaneous                                                                                         248

170WF  Hindering AWA negotiations................................................................ 248

170WG  Persons must not apply duress or make false statements in connection with AWA etc.                        248

170WH  Employer must give copies of documents to employee...................... 248

170WHA  Intervention not permitted................................................................ 248

170WHB  Identity of AWA parties not to be disclosed.................................... 249

170WHC  Commission not to publish AWA determinations............................ 249

170WHD  Hearings to be in private................................................................... 250

170WI  Evidence................................................................................................. 250

170WJ  Signature on behalf of body corporate................................................... 251

170WK  AWAs with Commonwealth employees............................................. 251

170WKA  Complementary State laws............................................................... 251

170WL  Regulations............................................................................................ 251

Part VIE—No‑disadvantage test                                                          253

170X  Interpretation........................................................................................... 253

170XA  When does an agreement pass the no‑disadvantage test?..................... 254

170XB  Special case—employee eligible for the Supported Wage System........ 254

170XC  Special case—employee undertaking approved traineeship................. 255

170XD  Special case—employee undertaking approved apprenticeship........... 255

170XE  Determination of designated award or awards for the purposes of an AWA                  256

170XF  Determination of designated award or awards for the purposes of a certified agreement                         256

Part VII—Co-operation with the States                                               258

171  Co-operation with States by President....................................................... 258

172  Co-operation with States by Industrial Registrar....................................... 258

173  Member of Commission may exercise powers under prescribed State laws 258

174  Reference of dispute to State authority for determination......................... 259

175  Joint proceedings........................................................................................ 260

176  Conference with State authorities............................................................... 261

Part VIII—Compliance                                                                         262

Division 1—Penalties and other remedies for contravention of awards and orders                   262

177A  Definition of court of competent jurisdiction........................................... 262

178  Imposition and recovery of penalties......................................................... 262

179  Recovery of wages etc................................................................................ 265

179A  Interest up to judgment............................................................................ 265

179B  Interest on judgment................................................................................. 266

179C  Plaintiffs may choose small claims procedure in magistrates’ courts...... 266

179D  Small claims procedure............................................................................. 266

180  Unclaimed moneys...................................................................................... 268

Division 3—Cancellation and suspension of awards and orders                         269

187  Cancellation and suspension of awards and orders..................................... 269

Part VIIIA—Payments in relation to periods of industrial action       271

187AA  Payments not to be made or accepted in relation to periods of industrial action            271

187AB  Organisations not to take action for payments in relation to periods of industrial action                        271

187AC  Applications to the Court..................................................................... 272

187AD  Orders that the Court may make.......................................................... 273

Part IX—Registered Organisations                                                     274

Division 1A—Preliminary                                                                                          274

187A  Objects of Part......................................................................................... 274

Division 1—Registration                                                                                            275

187B  Interpretation........................................................................................... 275

188  Associations capable of applying for registration...................................... 275

189  Criteria for registration................................................................................ 276

190  Applicant for registration may change its name or alter its rules............... 278

191  Registration................................................................................................. 279

192  Incorporation.............................................................................................. 279

Division 2—Rules of organisations                                                                          281

194  Organisations to have rules......................................................................... 281

195  Rules of organisations................................................................................. 281

196  General requirements for rules.................................................................... 282

197  Rules to provide for elections for offices.................................................... 283

198  Rules to provide for elections by secret postal ballot................................ 284

199  Rules to provide for terms of office............................................................ 286

200  Rules may provide for filling of casual vacancies....................................... 287

201  Rules to provide conditions for loans, grants and donations by organisations 288

202  Agreement between organisation and State union....................................... 289

203  Industrial Registrar may determine alterations of rules.............................. 291

203A  Designated Presidential Member may determine alteration of rules where there has been a breach of an undertaking        292

204  Change of name or alteration of eligibility rules of organisation................. 292

205  Alteration of other rules of organisation..................................................... 294

206  Certain alterations of rules to be recorded.................................................. 295

207  Evidence of rules......................................................................................... 295

Division 3—Validity and performance of rules                                                       296

208  Rules contravening section 196................................................................... 296

209  Directions for performance of rules............................................................ 297

Division 4—Conduct of elections for office                                                             299

210  Conduct by Australian Electoral Commission............................................ 299

211  Application for organisation or branch to conduct its elections................. 299

212  Objections to application to conduct elections........................................... 300

213  Registrar may permit organisation or branch to conduct its elections........ 300

214  Registrar to arrange for conduct of elections............................................... 301

215  Provisions applicable to elections conducted by Australian Electoral Commission             301

216  Death of candidate...................................................................................... 302

217  Ballot papers etc. to be preserved.............................................................. 302

Division 5—Inquiries into elections                                                                         304

218  Application for inquiry............................................................................... 304

219  Instituting of inquiry................................................................................... 304

220  Court may authorise Industrial Registrar to take certain action................. 304

221  Interim orders.............................................................................................. 305

222  Procedure at hearing.................................................................................... 306

223  Action by Court.......................................................................................... 306

224  Industrial Registrar to make arrangements for conduct of elections etc...... 308

225  Enforcement of orders................................................................................. 308

226  Validity of certain acts etc. where election declared void........................... 308

Division 6—Disqualification from office                                                                  309

227  Interpretation.............................................................................................. 309

228  Certain persons disqualified from holding office in organisations.............. 310

229  Application for leave to hold office in organisations by prospective candidate for office    311

230  Application for leave to hold office in organisations by office holder........ 312

231  Court to have regard to certain matters....................................................... 313

232  Action by Court.......................................................................................... 313

Division 7—Amalgamation of organisations                                                           314

Subdivision A—General                                                                                              314

234  Interpretation.............................................................................................. 314

235  Procedure to be followed for proposed amalgamation etc.......................... 317

Subdivision B—Preliminary matters                                                                       318

236  Federations.................................................................................................. 318

237  Use of resources to support proposed amalgamation................................ 319

Subdivision C—Commencement of amalgamation procedure                             319

238  Scheme for amalgamation............................................................................ 319

239  Alternative scheme for amalgamation......................................................... 320

240  Approval by committee of management..................................................... 321

241  Community of interest declaration............................................................. 321

242  Application for approval for submission of amalgamation to ballot.......... 323

243  Holding office after amalgamation............................................................... 323

244  Application for exemption from ballot....................................................... 325

245  Application for ballot not conducted under section 253J........................... 325

246  Lodging “yes” case...................................................................................... 325

Subdivision D—Role of Australian Electoral Commission                                  325

247  Ballots to be conducted by Australian Electoral Commission.................... 325

248  Notification of Australian Electoral Commission....................................... 326

249  Officer of organisation to provide information for ballot etc...................... 326

Subdivision E—Procedure for approval of amalgamation                                     326

250  Fixing hearing in relation to amalgamation etc............................................. 326

251  Submissions at amalgamation hearings........................................................ 327

252  Approval for submission to ballot of amalgamation not involving extension of eligibility rules etc.             327

253  Objections in relation to amalgamation involving extension of eligibility rules etc.               329

253A  Approval for submission to ballot of amalgamation involving extension of eligibility rules etc.                 330

253B  Fixing commencing and closing days of ballot.......................................... 332

253C  Roll of voters for ballot............................................................................ 333

253D  “Yes” case and “no” case for amalgamation............................................. 333

253E  Alteration and amendment of scheme....................................................... 334

253F  Outline of scheme for amalgamation......................................................... 336

253G  Exemption from ballot............................................................................. 336

253H  Approval for ballot not conducted under section 253J........................... 337

253J  Secret postal ballot of members................................................................ 338

253K  Determination of approval of amalgamation by members....................... 339

253L  Further ballot if amalgamation not approved........................................... 339

253M  Inquiries into irregularities...................................................................... 340

253N  Approval of amalgamation....................................................................... 341

253P  Expenses of ballot..................................................................................... 341

Subdivision F—Amalgamation taking effect                                                           341

253Q  Action to be taken after ballot................................................................. 341

253R  Assets and liabilities of de-registered organisation become assets and liabilities of amalgamated organisation                     342

253S  Resignation from membership.................................................................. 343

253T  Effect of amalgamation on awards, orders and certified agreements........ 343

253TA  Effect of amalgamation on agreement under section 202....................... 343

253U  Instruments.............................................................................................. 344

253V  Pending proceedings................................................................................. 344

253W  Subdivision applies despite laws and agreements prohibiting transfer etc. 344

253X  Amalgamated organisation to take steps necessary to carry out amalgamation                 345

253Y  Certificates in relation to land and interests in land................................. 345

253Z  Certificates in relation to charges............................................................. 346

253ZA  Certificates in relation to shares etc...................................................... 346

253ZB  Certificates in relation to other assets................................................... 347

253ZC  Court may resolve difficulties............................................................... 347

Subdivision G—Validation                                                                                          348

253ZD  Validation of certain acts done in good faith......................................... 348

253ZE  Validation of certain acts after 4 years................................................... 349

253ZF  Orders affecting application of section 253ZD or 253ZE..................... 349

253ZG  Court may make orders in relation to consequences of invalidity........ 350

Division 7A—Withdrawal from amalgamations                                                     352

Subdivision A—General                                                                                              352

253ZH  Object of Division................................................................................. 352

253ZI  Definitions.............................................................................................. 352

Subdivision B—Ballots for withdrawal from amalgamated organisations        353

253ZJ  Applications to the Court for ballots..................................................... 353

253ZK  Notifying of applications for ballots..................................................... 354

253ZL  Orders for ballots................................................................................... 354

253ZM  Conduct of ballots................................................................................ 355

253ZN  Providing information etc. to electoral officials..................................... 355

253ZO  Notifying of results of ballots............................................................... 355

Subdivision C—Giving effect to ballots                                                                    355

253ZP  Determining the day of withdrawal....................................................... 355

253ZQ  Registration of constituent part............................................................ 356

253ZR  Members of amalgamated organisation may join registered organisation 356

253ZS  Orders of the Commission, awards etc.................................................. 357

253ZT  Other matters......................................................................................... 357

253ZU  Subdivision applies despite laws and agreements prohibiting transfer etc. 358

Subdivision D—Miscellaneous                                                                                  359

253ZV  Court may resolve difficulties............................................................... 359

Division 8—Validating provisions for organisations                                            360

254  Interpretation.............................................................................................. 360

255  Validation of certain acts done in good faith............................................... 361

256  Validation of certain acts after 4 years........................................................ 363

257  Order affecting application of section 255 or 256...................................... 363

258  Court may make orders in relation to consequences of invalidity.............. 364

259  Court may order reconstitution of branch etc............................................. 365

260  Application for membership of organisation by person treated as having been a member   367

Division 9—Membership of organisations                                                              369

261  Entitlement to membership of organisations.............................................. 369

262  Court may order that persons shall cease to be members of organisations 371

263  Request by member for statement of membership..................................... 371

264  Resignation from membership.................................................................... 372

264A  Recovery of arrears.................................................................................. 373

265  Liability for arrears..................................................................................... 373

266  Rectification of register of members........................................................... 373

267  Conscientious objection to membership of organisations........................... 373

Division 10—Records to be kept and lodged by organisations                             376

268  Records to be kept and lodged by organisations......................................... 376

269  Organisations to notify particulars of loans, grants and donations............ 378

Division 11—Accounts and audit                                                                               380

270  Interpretation.............................................................................................. 380

271  Application of Division in relation to organisations divided into branches 380

271A  Exemption from this Division of certain branches................................... 381

272  Organisation to keep proper accounting records........................................ 381

273  Organisation to prepare accounts etc.......................................................... 382

274  Information to be provided to members or Registrar.................................. 382

275  Auditors of organisations............................................................................ 383

276  Powers and duties of auditors..................................................................... 384

277  Fees and expenses of auditors..................................................................... 385

278  Removal of auditor from office................................................................... 385

279  Copies of report and audited accounts to be provided to members and presented to meetings                     386

280  Reports etc. to be lodged in Industrial Registry......................................... 387

280A  Registrar may conduct other investigations............................................. 389

280B  Investigations under sections 280 and 280A............................................ 389

281  Organisation may lodge accounts etc. of all branches................................. 390

282  Organisation to forward notices etc. to auditor.......................................... 392

283  Auditor entitled to attend meetings at which report presented.................. 392

284  Auditors and other persons to enjoy qualified privilege in certain circumstances                 393

285  Accounts and audit where income of organisation less than certain amount 393

Division 11A—Entry and inspection of premises etc. by organisations             396

285A  Permits..................................................................................................... 396

285B  Investigating suspected breaches of Act etc............................................. 396

285C  Discussions with employees.................................................................... 398

285D  Conduct not authorised under sections 285B and 285C.......................... 398

285E  Conduct in relation to sections 285B and 285C attracting civil penalties 399

285F  Civil penalties........................................................................................... 399

285G  Powers of Commission............................................................................ 400

Division 12—Miscellaneous                                                                                       401

287  Right to participate in certain ballots.......................................................... 401

288  Requests by members for information concerning elections and certain ballots                    401

289  Providing copy of rules on request by member.......................................... 401

290  Disputes between organisations and members........................................... 402

291  Certificate as to membership of organisation.............................................. 402

291A  Certificate as to requested representation or invitation........................... 402

292  List of officers to be evidence..................................................................... 403

293  Schedule 4—Complementary registration systems.................................... 403

Part X—Cancellation of Registration                                                   404

294  Application for cancellation of registration................................................ 404

295  Orders where cancellation of registration deferred...................................... 406

296  Cancellation of registration on technical grounds etc.................................. 407

297  Cancellation to be recorded......................................................................... 409

298  Consequences of cancellation of registration.............................................. 409

Part XA—Freedom of association                                                        411

Division 1—Preliminary                                                                                             411

298A  Objects of Part......................................................................................... 411

298B  Definitions................................................................................................ 411

Division 2—Conduct to which this Part applies                                                      415

298C  Application of this Part........................................................................... 415

298D  Organisations........................................................................................... 415

298E  Industrial action........................................................................................ 415

298F  Matters arising under this Act.................................................................. 415

298G  Constitutional corporations..................................................................... 415

298H  Territories................................................................................................ 416

298J  Operation of State and Territory laws...................................................... 416

Division 3—Conduct by employers etc.                                                                    417

298K  Dismissal etc. of members of industrial associations etc......................... 417

298L  Prohibited reasons.................................................................................... 417

298M  Inducements to cease membership etc. of industrial associations etc..... 419

Division 4—Conduct by employees etc.                                                                    420

298N  Cessation of work.................................................................................... 420

Division 5—Conduct by industrial associations etc.                                              421

298P  Industrial associations acting against employers...................................... 421

298Q  Industrial associations acting against employees etc............................... 422

298R  Industrial associations acting against members........................................ 422

298S  Industrial associations acting against independent contractors etc........... 423

Division 6—Remedies for breaches of this Part                                                     424

298T  Applications to the Court........................................................................ 424

298U  Orders that the Federal Court may make................................................. 424

298V  Proof not required of the reason for, or the intention of, conduct........... 425

Division 7—Miscellaneous                                                                                         426

298W  Effect on other laws................................................................................ 426

298X  Contravention of this Part not an offence................................................ 426

298Y  Provisions of industrial instruments requiring or permitting conduct in contravention of this Part            426

Part XI—Offences                                                                                 427

299  Offences in relation to Commission............................................................ 427

300  Attendance at compulsory conferences...................................................... 427

301  Intimidation etc........................................................................................... 427

302  Creating disturbance near Commission....................................................... 428

303  Offences by witnesses................................................................................ 428

304  False representation of appointment as inspector...................................... 428

304A  False representation of appointment as an authorised officer................. 429

305  Obstructing inspector................................................................................. 429

305A  Obstructing an authorised officer............................................................. 429

306  Obstructing inspection................................................................................ 429

307  Application for secret ballot in relation to industrial action....................... 430

308  Compliance with directions in relation to secret ballot............................... 430

310  Failure to provide information in relation to election................................. 430

313  Refusal or failure to comply with direction in relation to election............. 431

314  Failure to preserve ballot papers etc........................................................... 431

315  Offences in relation to elections.................................................................. 431

316  Obstructing Industrial Registrar in relation to election inquiry.................. 433

317  Offences in relation to ballot....................................................................... 433

318  Failure to comply with requirement made in relation to an organisation.... 435

319  Failure to give statement as to membership of organisation....................... 435

321  Offences in relation to records of organisations.......................................... 435

322  Offences in relation to particulars of loans etc........................................... 436

323  Offences in relation to keeping and preparation of accounts etc................ 436

324  Offences in relation to appointment of auditors......................................... 436

325  Offences in relation to auditor’s report...................................................... 437

326  Offences in relation to obstruction etc. of auditors.................................... 437

327  Offences in relation to accounts, reports etc.............................................. 438

328  Failure to lodge accounts etc....................................................................... 440

329  Offences in relation to investigation by Registrar....................................... 440

330  Offences in relation to lodging of accounts................................................. 441

331  Offences in relation to accounts of low income organisations.................... 441

332  Failure by returning officer to provide information on request by member 441

333  Failure to provide copy of rules on request by member............................. 441

337  False representation as to membership of organisation.............................. 441

338  Contracts entered into by agents of employers.......................................... 442

339  Publication of trade secrets etc................................................................... 442

340  Unauthorised collection of money.............................................................. 442

Part XII—Financial Assistance and Costs                                           443

Division 1—Financial assistance                                                                              443

342  Authorisation of financial assistance.......................................................... 443

343  Court may certify that application was reasonable.................................... 445

344  Applications under sections 208, 209 and 261........................................... 445

345  Fees for 2 counsel not normally to be paid................................................. 446

346  Powers of Court not affected...................................................................... 446

Division 2—Costs                                                                                                         447

347  Costs only where proceeding instituted vexatiously etc............................ 447

Part XIII—Miscellaneous                                                                     448

348  Delegation by Minister............................................................................... 448

349  Conduct by officers, directors, employees or agents.................................. 448

350  No imprisonment in default........................................................................ 448

351  Jurisdiction of courts limited as to area...................................................... 449

352  Public sector employer to act through employing authority...................... 449

353  Proceedings by and against unincorporated clubs....................................... 449

353A  Records relating to employees................................................................. 450

354  Inspection of documents etc....................................................................... 450

355  Trade secrets etc. tendered as evidence....................................................... 450

356  Application of penalty............................................................................... 451

357  Enforcement of penalties etc....................................................................... 451

358  Appropriation for payment of certain salaries and allowances.................. 451

358A  Reports about developments in making agreements................................ 452

359  Regulations.................................................................................................. 452

Part XIV—Jurisdiction of the Federal Court of Australia                   454

Division 1—Original jurisdiction                                                                             454

412  Jurisdiction of Court................................................................................... 454

413  Interpretation of awards............................................................................. 454

413A  Interpretation of certified agreements...................................................... 455

414  Exclusive jurisdiction.................................................................................. 455

415  Exercise of Court’s original jurisdiction...................................................... 455

416  Reference of proceedings to Full Court...................................................... 456

Division 2—Appellate jurisdiction                                                                            457

421  Appeal to the Court from certain judgments.............................................. 457

422  Appeals from State and Territory courts................................................... 457

Division 3—Representation and intervention                                                         458

469  Representation of parties before Court...................................................... 458

470  Intervention generally................................................................................. 459

471  Particular rights of intervention of Minister............................................... 459

Part XV—Matters referred by Victoria                                               460

Division 1—Preliminary                                                                                             460

488  Object.......................................................................................................... 460

489  Interpretation.............................................................................................. 460

Division 2—Extension of existing Commonwealth provisions                             462

490  Division only has effect if supported by reference.................................... 462

491  Exclusion of Commonwealth employment................................................. 462

492  Additional effect of Act—termination of employment.............................. 462

493  Additional effect of Act—industrial disputes............................................ 462

494  Additional effect of Act—certified agreements.......................................... 463

495  Additional effect of Act—AWAs............................................................... 463

496  Additional effect of Act—freedom of association...................................... 464

Division 3—New Commonwealth provisions                                                           465

Subdivision A—General                                                                                              465

497  Division only has effect if supported by reference.................................... 465

498  Exclusion of Commonwealth employment................................................. 465

499  Inconsistency with other Commonwealth laws.......................................... 465

Subdivision B—Minimum terms and conditions of Victorian employees          465

500  Minimum terms and conditions of employment........................................ 465

501  Minimum wages.......................................................................................... 466

502  Reference of minimum wage proceeding to Full Bench.............................. 467

503  Modified application of section 143 in relation to minimum wage orders. 468

504  Certain provisions of no effect................................................................... 468

505  Employer must comply with minimum terms and conditions of employment 468

506  Deemed inclusion of minimum terms and conditions in contracts etc........ 469

507  Limit on operation of sections 505 and 506 and Schedule 1A.................... 469

508  Relationship between awards and minimum terms and conditions of employment              469

509  Exemption from minimum rate of pay........................................................ 469

Subdivision C—Intervals for meals                                                                          470

510  Intervals for meals....................................................................................... 470

511  Relationship between section 510 and other laws etc................................ 471

512  Limit on operation of section 510............................................................... 471

513  Relationship between awards and section 510........................................... 471

Subdivision D—Pay slips                                                                                            471

514  Pay slips..................................................................................................... 471

Subdivision E—Employment agreements                                                                 471

515  Continued operation of employment agreements....................................... 471

516  Individual employment agreements on cessation of collective employment agreements      472

517  Lodging collective employment agreements within 14 days of coming into force etc.          472

518  Variation of collective employment agreements......................................... 473

519  Stand down provisions............................................................................... 473

520  Dispute resolution provisions.................................................................... 473

521  Limit on damages for breach of employment agreement............................. 474

522  Employer to give copy of employment agreement..................................... 475

523  Registrar not to divulge information in employment agreements............... 475

524  Restriction on protected action and AWA industrial action: employees... 475

525  Restriction on protected action and AWA industrial action: employers.... 475

526  Restriction on protected action: organisations............................................ 476

527  Application of Act as if employment agreement were a certified agreement 476

528  Application of section 111AAA as if employment agreement were a State employment agreement            477

529  Exclusion of certain agreements from sections 524, 525, 526 and 528....... 477

530  Relationship between employment agreements and awards....................... 477

531  Relationship between employment agreements and enterprise flexibility agreements          478

532  Record keeping............................................................................................ 478

Subdivision F—Contravention of penalty provisions                                             478

533  Penalties for contravening penalty provisions............................................ 478

534  Injunctions.................................................................................................. 478

Division 4—Recognised associations                                                                       479

535  Regulations relating to transitional registration applications...................... 479

536  Regulations relating to certain recognised associations that have become registered             479

Schedule 1A—Minimum terms and conditions of employment               

Schedule 1—Interpretation for purposes of additional operation of Act

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                                       

Schedule 10—Convention concerning termination of employment at the initiative of the employer             

Schedule 12—Convention concerning equal opportunities and equal treatment for men and women workers: workers with family responsibilities       

Schedule 14—Parental leave                                                                 

 

 

 


An Act relating to workplace relations, and for other purposes

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Part IPreliminary

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1  Short title1

This Act may be cited as the Workplace Relations Act 1996.

2  Commencement1

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

3  Principal object of this Act

The principal object of this Act is to provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia by:

                     (a)  encouraging the pursuit of high employment, improved living standards, low inflation and international competitiveness through higher productivity and a flexible and fair labour market; and

                     (b)  ensuring that the primary responsibility for determining matters affecting the relationship between employers and employees rests with the employer and employees at the workplace or enterprise level; and

                     (c)  enabling employers and employees to choose the most appropriate form of agreement for their particular circumstances, whether or not that form is provided for by this Act; and

                     (d)  providing the means:

                              (i)  for wages and conditions of employment to be determined as far as possible by the agreement of employers and employees at the workplace or enterprise level, upon a foundation of minimum standards; and

                             (ii)  to ensure the maintenance of an effective award safety net of fair and enforceable minimum wages and conditions of employment; and

                     (e)  providing a framework of rights and responsibilities for employers and employees, and their organisations, which supports fair and effective agreement-making and ensures that they abide by awards and agreements applying to them; and

                      (f)  ensuring freedom of association, including the rights of employees and employers to join an organisation or association of their choice, or not to join an organisation or association; and

                     (g)  ensuring that employee and employer organisations registered under this Act are representative of and accountable to their members, and are able to operate effectively; and

                     (h)  enabling the Commission to prevent and settle industrial disputes as far as possible by conciliation and, where appropriate and within specified limits, by arbitration; and

                      (i)  assisting employees to balance their work and family responsibilities effectively through the development of mutually beneficial work practices with employers; and

                      (j)  respecting and valuing the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin; and

                     (k)  assisting in giving effect to Australia’s international obligations in relation to labour standards.

4  Interpretation

             (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;

A.C.T. Consequential Provisions Act means the  A.C.T. Self-Government (Consequential Provisions) Act 1988;

allowable award matters means the matters covered by subsection 89A(2).

Anti-Discrimination Conventions means:

                     (a)  the Equal Remuneration Convention; and

                     (b)  the Convention on the Elimination of all Forms of Discrimination against Women, a copy of the English text of which is set out in the Schedule to the Sex Discrimination Act 1984; and

                     (c)  the Convention concerning Discrimination in respect of Employment and Occupation, a copy of the English text of which is set out in Schedule 1 to the Human Rights and Equal Opportunity Commission Act 1986; and

                     (d)  Articles 3 and 7 of the International Covenant on Economic, Social and Cultural Rights;

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;

Australian Capital Territory Government Service  means the service established by the Public Sector Management Act 1994 of the Australian Capital Territory;

Australian workplace agreement or AWA means an Australian workplace agreement under Part VID.

authorised officer means an authorised officer appointed under Part IVA.

AWA means an Australian workplace agreement under Part VID.

award means an award or order that has been reduced to writing under subsection 143(1), but does not include an order made by the Commission in a proceeding under Subdivision B of Division 3 of Part VIA.

boycott means a contravention of subsection 45D(1), 45DA(1), 45DB(1), 45E(2) or 45E(3), or section 45EA, of the Trade Practices Act 1974.

boycott conduct means conduct that constitutes or would constitute:

                     (a)  a boycott; or

                     (b)  attempting to commit a boycott; or

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

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

                     (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 Division 4 of Part VIB;

Chief Justice means the Chief Justice of the Court;

coal mining industry includes the shale mining industry;

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;

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

constitutional corporation means:

                     (a)  a foreign corporation within the meaning of paragraph 51(xx) of the Constitution; or

                     (b)  a body corporate that is, for the purposes of paragraph 51(xx) of the Constitution, a financial corporation formed within the limits of the Commonwealth; or

                     (c)  a body corporate that is, for the purposes of paragraph 51(xx) of the Constitution, a trading corporation formed within the limits of the Commonwealth; or

                     (d)  a body corporate that is incorporated in a Territory; or

                     (e)  a Commonwealth authority;

Court means the Federal Court of Australia.

demarcation dispute includes:

                     (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; or

                     (c)  a dispute about the representation under this Act of the industrial interests of employees by an organisation 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 member of the Organisations Panel referred to in section 38 who has responsibility for the exercise of the power or the 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, but does not include a person who is undertaking a vocational placement;

employer includes:

                     (a)  a 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;

Employment Advocate means the Employment Advocate referred to in Part IVA.

enterprise association means an association referred to in paragraph 188(1)(c).

Equal Remuneration Convention means the Equal Remuneration Convention, 1951;

exceptional matters order means an order made by the Commission on a matter that is allowed to be included in an industrial dispute because of subsection 89A(7).

Family Responsibilities Convention means the Workers with Family Responsibilities Convention, 1981, a copy of the English text of which is set out in Schedule 12;

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 Court means a Full Court of the Court;

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

industrial action (except in Part XA) 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 a certified agreement or AWA, 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 a certified agreement or AWA, 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, if;

                              (i)  the persons are members of an organisation and the failure or refusal is in accordance with a decision made, or direction given, by an organisation, the committee of management of the organisation, or an officer or a group of members of the organisation acting in that capacity; or

                             (ii)  the failure or refusal is in connection with an industrial dispute; or

                            (iii)  the persons are employed by the Commonwealth or a constitutional corporation; or

                            (iv)  the persons are employed in a Territory;

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; or

                     (g)  action by an employee if:

                              (i)  the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and

                             (ii)  the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

industrial dispute (except in Part XA) 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 (whether or not, in the case of a demarcation dispute involving an organisation or the members of an organisation in that capacity, the dispute extends beyond the limits of any one State);

Industrial Registry means the Australian Industrial Registry;

industrial situation means a situation that, if preventive action is not taken, may give rise to:

                     (a)  an industrial dispute of the kind referred to in paragraph (a) of the definition of industrial dispute; or

                     (b)  a demarcation dispute of the kind referred to in that definition;

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 means:

                     (a)  in the case of a reference to the Court or a Judge—a Judge (including the Chief Justice) sitting in Chambers; or

                     (b)  otherwise—a Judge of the Court (including the Chief Justice);

judgment means a judgment, decree or order, whether final or interlocutory, or a sentence;

magistrate’s court means:

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

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

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, except in section 38, means a panel to which an industry has been assigned under section 37;

party, in relation to an industrial situation, means:

                     (a)  an organisation of employees that is affected by the situation; or

                     (b)  an organisation of employers that is affected by the situation, or members of which are so affected; or

                     (c)  an employer who is affected by the situation;

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;

prescribed includes prescribed by Rules of the Commission made under section 48;

President means the President of the Commission;

Presidential Member means the President, a Vice President, a Senior Deputy 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;

                    (ba)  under a law of the Australian Capital Territory relating to employment by that Territory, including a law relating to the Australian Capital Territory Government Service;

                    (bb)  by or in the service of:

                              (i)  an enactment authority as defined by section 3 of the A.C.T. Consequential Provisions Act; or

                             (ii)  a body corporate incorporated under a law of the Australian Capital Territory and in which the Australian Capital Territory has a controlling interest;

                            other than a prescribed authority or body;

                     (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;

regular part‑time employee means an employee who:

                     (a)  works less than full‑time ordinary hours; and

                     (b)  has reasonably predictable hours of work; and

                     (c)  receives, on a pro‑rata basis, equivalent pay and conditions to those specified in an award or awards for full‑time employees who do the same kind of work.

relevant Presidential Member, in relation to an industrial dispute, means the Presidential Member who has been given the responsibility by the President for organising and allocating the work 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;

Senior Deputy President means a Senior Deputy President of the Commission;

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 award means an award, order, decision or determination of a State industrial authority;

State employment agreement means an agreement:

                     (a)  between an employer and one or more of the following:

                              (i)  an employee of the employer;

                             (ii)  a trade union; and

                     (b)  that regulates wages and conditions of employment of one or more of the employees; and

                     (c)  that is made under a law of a State that provides for such agreements; and

                     (d)  that prevails over an inconsistent State award.

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;

Termination of Employment Convention means the Termination of Employment Convention, 1982, a copy of the English text of which is set out in Schedule 10;

this Act includes the regulations;

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;

Vice President means a Vice President of the Commission.

vocational placement means a placement that is:

                     (a)  undertaken with an employer for which a person is not entitled to be paid any remuneration; and

                     (b)  undertaken as a requirement of an education or training course; and

                     (c)  authorised under a law or an administrative arrangement of the Commonwealth, a State or a Territory.

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.

          (1A)  To avoid doubt, it is declared that a reference in this Act to an independent contractor is confined to a natural person.

             (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 to 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 or staff 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.

5  Additional operation of Act

             (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:

                            (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 or staff 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.

             (6)  If a law of New South Wales or Queensland (the relevant State law) provides that the provisions of this Act apply (with or without any modifications)  as a law of that State for the purpose of enabling the Commission to perform  functions or exercise powers with respect to matters pertaining to the  relationship between employers in the coal mining industry in that State and  their employees:

                     (a)  nothing in this Act or in Division 4 of Part 2 of Schedule 1  to the Industrial Relations Legislation Amendment Act (No. 2) 1994 affects  the operation of the relevant State law; and

                     (b)  the Commission may perform those functions or exercise those powers; and

                     (c)  if a law of that State requires that, in the performance of those functions or the exercise of those powers by a full bench, the President is to ensure, if it is practicable to do so, that at least one member of the full bench is a member who also holds office as a member of the Industrial Relations Commission of that State, the President must comply with the requirement despite any other provision of this Act.

             (7)  If a law of New South Wales or Queensland referred to in subsection (6)(the relevant state law) also provides that the provisions of this Act apply, with or without modifications, as a law of the State for the purpose of enabling the Court to perform functions or exercise powers with respect to matters pertaining to the relationship between employers in the coal mining industry in the State and their employees, in connection with:

                     (a)  awards of the Commission, to the extent that those awards are made in the exercise of the provisions of this Act as applied by the relevant State law; or

                    (aa)  certified agreements, to the extent that the agreements are, or are proposed to be, certified in the exercise of the provisions of this Act as applied by the relevant State law; or

                     (b)  instruments that are taken, under the relevant State law, to have been made by the Commission under those provisions;

then:

                     (c)  the Court may perform those functions or exercise those powers in connection with those awards or instruments; and

                     (d)  nothing in this Act or in Division 4 of Part 2 of Schedule 1 to the Industrial Relations Legislation Amendment Act (No. 2) 1994 affects the operation of the relevant State law.

             (8)  If a law of a State (the relevant State law) provides that a provision of this Act applies (subject to any necessary modifications to section 170CB) as a law of that State for the purpose of enabling the Commission to perform functions or exercise powers with respect to the termination of employment of employees who are, or who were before the termination, Federal award employees as defined in section 170CD employed in that State:

                     (a)  nothing in this Act affects the operation of the relevant State law; and

                     (b)  the Commission may perform those functions or exercise those powers.

             (9)  If a law of a State (the relevant State law) also provides that a provision of this Act applies (subject to any necessary modifications) as a law of that State for the purpose of enabling the Court to perform functions or exercise powers with respect to the termination of employment of employees who are, or who were before the termination, Federal award employees as defined in section 170CD employed in that State in connection with orders of the Commission to the extent that those orders are made in the exercise of the provisions of this Act as applied by the relevant State law, then:

                     (a)  the Court may perform those functions or exercise those powers in connection with those orders; and

                     (b)  nothing in this Act affects the operation of the relevant State law.

5AA  Additional operation of Act—certified agreements

             (1)  In addition to the application that Division 2 of Part VIB and related provisions of this Act have to agreements about matters pertaining to the relationship between:

                     (a)  an employer who is a constitutional corporation or the Commonwealth; and

                     (b)  employees employed in a single business or part of a single business of the employer;

that Division and those provisions also apply as mentioned in subsections (2) and (3).

             (2)  Division 2 of Part VIB and related provisions of this Act apply in the same way as mentioned in subsection (1) in relation to an agreement about matters pertaining to the relationship between an employer who is carrying on a single business or a part of a single business in a Territory and employees employed in the single business or part.

             (3)  Division 2 of Part VIB and related provisions apply in the same way as mentioned in subsection (1) in relation to an agreement about matters pertaining to the relationship between:

                     (a)  a waterside employer and waterside workers employed in a single business or part of a single business of the waterside employer; or

                     (b)  an employer and maritime employees employed in a single business or part of a single business of the employer; or

                     (c)  a flight crew officers’ employer and flight crew officers performing duties or being trained in a single business or part of a single business of the employer;

so far as the matters relate to trade or commerce:

                     (d)  between Australia and a place outside Australia; or

                     (e)  between the States; or

                      (f)  within a Territory, between a State and Territory, or between 2 Territories.

5A  Special provision for industrial disputes in the Australia-Indonesia Zone of Cooperation

             (1)  In this section, Area A of the Zone of Cooperation and the Treaty have the same meaning as in the Petroleum (Australia-Indonesia Zone of Cooperation) Act 1990.

             (2)  This Act applies to disputes between employers and persons employed on structures in Area A of the Zone of Cooperation where:

                     (a)  the terms and conditions of employment are governed by an employment contract or collective agreement in accordance with Article 24 of the Treaty; and

                     (b)  negotiation between the parties to a dispute has failed to settle the dispute; and

                     (c)  the employment contract or collective agreement identifies the conciliation and arbitration system established by this Act as the applicable dispute settlement mechanism;

as if those disputes were industrial disputes within the meaning of this Act.

6  Application to Crown

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

7  Extension to Christmas Island

             (1)  This Act extends to Christmas Island.

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

7A  Act not to apply so as to exceed Commonwealth power

             (1)  Unless the contrary intention appears, if a provision of this Act:

                     (a)  would, apart from this section, have an invalid application; but

                     (b)  also has at least one valid application;

it is the Parliament’s intention that the provision is not to have the invalid application, but is to have every valid application.

             (2)  Despite subsection (1), the provision is not to have a particular valid application if:

                     (a)  apart from this section, it is clear, taking into account the provision’s context and the purpose or object underlying this Act, that the provision was intended to have that valid application only if every invalid application, or a particular invalid application, of the provision had also been within the Commonwealth’s legislative power; or

                     (b)  the provision’s operation in relation to that valid application would be different in a substantial respect from what would have been its operation in relation to that valid application if every invalid application of the provision had been within the Commonwealth’s legislative power.

             (3)  Subsection (2) does not limit the cases where a contrary intention may be taken to appear for the purposes of subsection (1).

             (4)  This section applies to a provision of this Act, whether enacted before, at or after the commencement of this section.

             (5)  In this section:

application means an application in relation to:

                     (a)  one or more particular persons, things, matters, places, circumstances or cases; or

                     (b)  one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases;

invalid application, in relation to a provision, means an application because of which the provision exceeds the Commonwealth’s legislative power;

valid application, in relation to a provision, means an application that, if it were the provision’s only application, would be within the Commonwealth’s legislative power.

Part IIAustralian Industrial Relations Commission

Division 1Establishment of Commission

8  Establishment of Commission

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

             (2)  The Commission consists of:

                     (a)  a President;

                    (ab)  2 Vice Presidents;

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

                     (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.

9  Appointment of Commission members etc.

             (1)  The President, Vice Presidents, Senior Deputy Presidents, 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.

10  Qualifications for appointment

             (1)  The Governor-General may only appoint a person as the President if:

                     (a)  the person:

                              (i)  is or has been a Judge of a court created by the Parliament; or

                             (ii)  has been a Judge of a court of a State or Territory; or

                            (iii)  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 Vice President, a Senior Deputy President or 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 Vice President, a Senior Deputy President or 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 Vice President, a Senior Deputy President or a Deputy President (as the case may be).

             (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.

11  Seniority

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

                     (a)  the President;

                    (ab)  the Vice Presidents, according to the days on which their commissions took effect, or, if their commissions took effect on the same day, according to the precedence assigned to them by their commissions;

                    (ac)  the Senior 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;

                     (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.

12  Performance of duties on part-time basis

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

             (2)  If the President consents to a member performing his or her duties on a part-time basis, the President and the member are to enter into an agreement specifying the proportion of full-time duties to be worked by the member from and including a specified date.

          (2A)  The proportion may be varied by an agreement entered into between the President and the member.

          (2B)  The proportion in force in relation to a particular period is in this section called the agreed proportion.

          (2C)  If the President consents to a member performing his or her duties on a part-time basis, the member is to be paid:

                     (a)  salary at an annual rate equal to the agreed proportion of the annual rate of salary that would be payable to the member if the member were performing his or her duties on a full-time basis instead of on a part-time basis; and

                     (b)  such allowances as are prescribed.

          (2D)  If the annual rate of salary of a member mentioned in subsection (2C) is not an amount of whole dollars, it is to be rounded to the nearest dollar (with 50 cents being rounded up).

           (2E)  If, assuming that a member or former member mentioned in subsection (2C) had performed his or her duties on a full-time basis instead of on a part-time basis, the member or former member would be entitled to a payment under subsection 21(2E), (2F) or (2G) or 23(3), the member or former member is to be paid an amount equal to the agreed proportion of that payment.

           (2F)  If there are different agreed proportions applicable to different periods, paragraph (2C)(a) and subsection (2E) apply separately to each of those periods.

             (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.

13  Dual federal and State appointments

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.

14  Performance of duties by dual federal and State appointees

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.

15  Dual federal appointments

             (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.

15A  Appointment of a Judge as President not to affect tenure etc.

             (1)  The appointment of a Judge of a court created by the Parliament as the President, or service by such a Judge as President, does not affect:

                     (a)  the Judge’s tenure of office as a Judge; or

                     (b)  the Judge’s rank, title, status, precedence, salary, annual or other allowances or other rights or privileges as the holder of his or her office as a Judge.

             (2)  For all purposes, the Judge’s service as the President is  taken to be service as a Judge.

16  Tenure of Commission members

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

          (1A)  The first President of the Commission appointed after the commencement of this subsection may be appointed for a fixed term and, in that case, the person holds office as President until:

                     (a)  the term ends; or

                     (b)  the person dies, resigns or is removed from office;

whichever first happens.

             (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.

17  Acting President

             (1)  During any period when:

                     (a)  the President is absent from duty or from Australia, or is for any other reason unable to perform the duties of the office of President; or

                     (b)  there is a vacancy in the office of President (whether or not an appointment has previously been made to the office);

the Governor-General may appoint a person who is qualified to be appointed as the President to act in that office.

             (2)  Anything done by or in relation to a person purporting to act under subsection (1), (1A) or (1B) 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)  For the purpose of subsection (1) only, a person is not disqualified from appointment as the President merely because the person has reached the age of 65.

17A  Acting Vice President

             (1)  The Governor-General may appoint a person who is qualified to be appointed as a Vice President to act in an office of Vice 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 holder of the office 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 merely because:

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

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

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

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

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

17B  Acting Senior Deputy President

             (1)  The Governor-General may appoint a person qualified to be appointed as a Senior Deputy President to act as Senior 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 merely because:

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

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

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

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

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

18  Acting Deputy Presidents

             (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;

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

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

             (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.

19  Oath or affirmation of office

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.

19A  Discharge of Commission’s business

The President is to be assisted by the Vice President in ensuring the orderly and quick discharge of the business of the Commission.

20  Duty of Commission members

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

21  Remuneration and allowances of Presidential Members etc.

             (1)  The President is to be paid:

                     (a)  salary at an annual rate equal to the annual rate of salary payable to the Chief Justice of the Court; and

                     (b)  such allowances as are prescribed.

          (1A)  If a person holds office as the President and as a Judge of a court created by the Parliament, he or she is not to be paid remuneration as President except as provided by subsection (1B).

          (1B)  If the salary payable to the person as a Judge is less than the salary that would be payable to the President under subsection (1), the person is to be paid an allowance equal to the difference between the Judge’s salary and the salary that would be payable to the President.

             (2)  A Vice President is to be paid:

                     (a)  salary at an annual rate equal to 103% of the annual rate of salary payable to a Judge of the Court; and

                     (b)  such allowances as are prescribed.

          (2A)  A Senior Deputy President is to be paid:

                     (a)  salary at an annual rate equal to the annual rate of salary payable to a Judge of the Court; and

                     (b)  such allowances as are prescribed.

          (2B)  A Deputy President is to be paid:

                     (a)  salary at an annual rate equal to 95% of the annual rate of salary payable to a Judge of the Court; and

                     (b)  such allowances as are prescribed.

          (2C)  If the annual rate of salary of a Presidential Member is not an amount of whole dollars, it is to be rounded to the nearest dollar (with 50 cents being rounded up).

          (2D)  If, assuming that the President or a former President had held the office of Chief Justice of the Court instead of the office of President, the President or former President would be entitled to a payment under subsection 7(5E) of the Remuneration Tribunal Act 1973, the President or former President is to be paid an amount equal to that payment.

           (2E)  If, assuming that a Vice President or former Vice President had held an office of Judge of the Court instead of an office of Vice President, the Vice President or former Vice President would be entitled to a payment under subsection 7(5E) of the Remuneration Tribunal Act 1973, the Vice President or former Vice President is to be paid an amount equal to 103% of that payment.

           (2F)  If, assuming that a Senior Deputy President or former Senior Deputy President had held an office of Judge of the Court instead of the office of Senior Deputy President, the Senior Deputy President or former Senior Deputy President would be entitled to a payment under subsection 7(5E) of the  Remuneration Tribunal Act 1973, the Senior Deputy President or former Senior Deputy President is to be paid an amount equal to that payment.

          (2G)  If, assuming that a Deputy President or former Deputy President had held an office of Judge of the Court instead of the office of Deputy President, the Deputy President or former Deputy President would be entitled to a payment under subsection 7(5E) of the Remuneration Tribunal Act 1973, the Deputy President or former Deputy President is to be paid an amount equal to 95% of that payment.

             (3)  The salary 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).

             (7)  In this section:

Judge does not include the Chief Justice of the Court.

22  Application of Judges’ Pensions Act

             (1)  The Judges’ Pensions Act 1968  does not apply in relation to a Presidential Member if:

                     (a)  immediately before being appointed as  a Presidential Member, he or she was:

                              (i)  an eligible employee for the purposes of the  Superannuation Act 1976; or

                             (ii)  a member of the superannuation scheme established by deed under the Superannuation Act 1990; and

                     (b)  he or she does not make an election under subsection (2).

             (2)  A Presidential Member may elect to cease to be:

                     (a)  an eligible employee for the purposes of the  Superannuation Act 1976; or

                     (b)  a member of the superannuation scheme established by deed under the Superannuation Act 1990.

          (2A)  The election must be made:

                     (a)  within 3 months of the Presidential Member’s appointment; and

                     (b)  by notice in writing to the Minister.

          (2B)  If a Presidential Member makes the election:

                     (a)  the Judge’ Pensions Act 1968 applies in relation to him or her and is taken to have so applied immediately after he or she was appointed as a Presidential Member; and

                     (b)  he or she is taken to have ceased to be:

                              (i)  an eligible employee for the purposes of the  Superannuation Act 1976; or

                             (ii)  a member of the superannuation scheme established by deed under the Superannuation Act 1990;

                            immediately before being 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.

             (4)  Subject to subsection (5), if:

                     (a)  a Presidential Member makes an election under subsection (2); and

                     (b)  he or she would, but for this subsection be entitled to benefits under the Superannuation Act 1990;

that Act applies in relation to the Presidential Member as if he or she were not entitled to those benefits.

             (5)  Subsection (4) does not affect the Presidential Member’s entitlement (if any) to the part of those benefits that consists of his or her accumulated member contributions and accumulated employer contributions within the meaning of the  Superannuation Act 1990.

23  Remuneration and allowances of Commissioners

             (1)  A Commissioner is to be paid:

                     (a)  salary at an annual rate equal to 70% of the annual rate of salary payable to a Deputy President; and

                     (b)  such allowances as are prescribed.

             (2)  If the annual rate of salary of a Commissioner is not an amount of whole dollars, it is to be rounded to the nearest dollar (with 50 cents being rounded up).

             (3)  If, assuming that a Commissioner or former Commissioner had held an office of Deputy President instead of the office of Commissioner, the Commissioner or former Commissioner would be entitled to a payment under subsection 21(2G), the Commissioner or former Commissioner is to be paid an amount equal to 70% of that payment.

             (4)  This section has effect subject to section 12.

24  Removal of Presidential Member from office

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.

25  Outside employment of Commissioner

             (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.

26  Leave of absence of Commissioner

             (1)  Subject to section 87E of the Public Service Act 1922, a Commissioner has such recreation leave entitlements as are determined by the Remuneration Tribunal. 

             (2)  The President may grant a Commissioner leave of absence, other than recreation leave, on such terms and conditions as to Remuneration or otherwise as the President determines. 

             (3)  In determining the recreation leave entitlements of a Commissioner under the Remuneration Tribunal Act 1973, the Remuneration Tribunal must 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. 

             (4)  In determining the terms and conditions on which leave of absence is granted to a Commissioner under subsection (2), the President must 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.

27  Disclosure of interest by Commission members

             (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.

28  Termination of appointment of Commissioner

             (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, 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.

29  Resignation by Commission member

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

Division 2Organisation of Commission

30  Manner in which Commission may be constituted

             (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).

31  Powers exercisable by single member of Commission

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

32  Functions and powers conferred on members

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.

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

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 or a certified agreement.

34  Continuation of hearing by Commission

             (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.

35  Commission divided in opinion

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; and

                     (b)  where the President is not a member and the Vice President is a member—the opinion of the Vice President; and

                     (c)  where neither the President nor the Vice President is a member and only one Senior Deputy President is a member—the opinion of the Senior Deputy President; and

                     (d)  where neither the President nor the Vice President is a member and 2 or more Senior Deputy Presidents are members—the opinion of the Senior Deputy President who has seniority under section 11; and

                     (e)  where the President, the Vice President and any Senior Deputy President are not members, and only one Deputy President is a member—the opinion of the Deputy President; and

                      (f)  where the President, Vice President and any Senior Deputy President are not members and 2 or more Deputy Presidents are members—the opinion of the Deputy President who has seniority under section 11; and

                     (g)  in any other case—the opinion of the Commissioner who is a member and who has seniority under section 11.

36  Arrangement of business of Commission

             (1)  The President shall direct the business of the Commission.

             (2)  When exercising powers under this section and section 37, the President must have regard to the improved:

                     (a)  efficiency of the Commission; and

                     (b)  cooperation between the Commission and State industrial authorities;

that may be achieved by the Commission’s powers and functions being exercised and performed, in relation to a particular matter, by members of State industrial authorities who hold secondary offices as members of the Commission.

             (3)  If application is made under section 111AAA for the Commission to cease dealing with the whole or part of an industrial dispute in relation to particular employees, the President must give consideration to arranging for the matter to be heard by a member of a State industrial authority who holds a secondary office as a member of the Commission or, if the application is to be heard by a Full Bench, by a Full Bench which includes such a member.

37  Panels of Commission for particular industries

             (1)  The President may assign an industry or group of industries to a panel of members of the Commission consisting of at least one Presidential Member and at least one Commissioner and, subject to this Act and any direction of the President, 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.

          (1A)  Even though an industry has been assigned to a panel, the President may direct that the powers of the Commission in relation to a particular matter relating to that industry are to be exercised by:

                     (a)  a member of the Commission who is not a member of that panel; or

                     (b)  members of the Commission, some or all of whom are not members of that panel.

             (2)  If more than one Presidential Member is assigned to a panel, the President must nominate one of the Presidential Members to organise and allocate the work of the panel.

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

38  Vice President’s Panel

             (1)  There is to be an Organisations Panel, consisting of:

                     (a)  a Vice President; and

                     (b)  at least one other Presidential member (other than the President or a Vice President) assigned to the Panel by the President.

             (2)  The Vice President is to organise and allocate the work of the Panel, and the other member or members of the Panel must comply with directions given by the Vice President in relation to that work.

             (3)  A member of the Panel may be a member of one or more panels referred to in section 37.

             (4)  The fact that a person is a member of the Panel does not affect any powers, functions or duties that have been, or may be, given to the person by or under any other provision of this Act.

39  Conference of Commission members

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.

40  Delegation by President

             (1)  The President may, by signed instrument, delegate to a Vice President all or any of the President’s powers under this Act.

             (2)  If the President delegates a power to only one of the Vice Presidents, he or she may, in addition, delegate that power to a Senior Deputy President to be exercised when that Vice President is unable, for any reason, to exercise that power personally.

             (3)  If the President delegates the same power to both Vice Presidents, he or she may, in addition, delegate that power to a Senior Deputy President to be exercised when, for any reason, neither Vice President is able to exercise that power personally.

41  Protection of Commission members

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 3—Representation and intervention

42  Representation of parties before Commission

             (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.

43  Intervention generally

             (1)  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.

             (2)  If the matter before the Commission is an application under Division 2 or 3 of Part VIB for certification of an agreement, the Commission:

                     (a)  must, on application, grant leave to intervene in the matter to any organisation of employees that was requested to represent a person as mentioned in subsection 170LK(4) in relation to the agreement, provided the request was not withdrawn; and

                     (b)  except as mentioned in paragraph (a), must not grant leave to intervene in the matter to an organisation of employees other than one that is proposed to be bound by the agreement.

44  Particular rights of intervention of Minister

             (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

45  Appeals to Full Bench

             (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, other than an award or order made by consent of the parties to an industrial dispute;

                     (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 Division 4 of Part VIB;

                    (ea)  an opinion formed by a member of the Commission under section 127A or a decision by a member of the Commission not to form such an opinion;

                    (eb)  an order made by a member of the Commission under section 127B or a decision by a member of the Commission not to make such an order;

                    (ed)  a decision of the Commission to vary, or not to vary, an award that has been referred to the Commission under section 50A of the Sex Discrimination Act 1984;

                      (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) that is not against an order under Part VIA—by an organisation or person bound by the award or order;

                    (aa)  in the case of an appeal under paragraph (1)(b) against an order under Part VIA—by a person entitled under section 170JF to institute the appeal;

                     (b)  in the case of an appeal under paragraph (1)(e)—by a person who made the agreement;

                    (bb)  in the case of an appeal under paragraph (1)(ed)—by a party to the review of the award under section 111A;

                     (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 or Presidential Member may, on such terms and conditions as the Full Bench or Presidential Member 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 a Full Bench or Presidential Member.

             (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.

46  References to Court by Commission on question of law

             (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, order or decision in the matter.

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

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

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

Division 5—Miscellaneous

47  Seals of Commission

             (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.

48  Rules of Commission

             (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.

             (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.

49  Annual report of Commission

             (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 IVAustralian Industrial Registry

Division 1AInterpretation

61A  Definition of State industrial body

In this Part:

State industrial body means a court, tribunal, board, authority or other body of a State.

Division 1Establishment and functions of Australian Industrial Registry

62  Australian Industrial Registry

             (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.

63  Functions of the Industrial Registry

             (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.

          (1A)  If an agreement made by the Minister, after consulting the President, with an appropriate authority of a State:

                     (a)  provides for the Industrial Registrar or a Deputy Industrial Registrar to be appointed under an Act of the State to be the Registrar of a State industrial body; or

                     (b)  provides for the Industrial Registrar or a Deputy Industrial Registrar to perform or exercise any functions, duties or powers of the Registrar of a State industrial body;

subsections (1B) and (1C) apply subject to the agreement.

          (1B)  The Industrial Registry has the following functions:

                     (a)  acting as the registry for the State industrial body;

                     (b)  providing administrative support to the State industrial body.

          (1C)  If:

                     (a)  either of the following subparagraphs applies:

                              (i)  the Industrial Registrar or the Deputy Industrial Registrar is appointed under an Act of the State to be the Registrar of another State industrial body that has replaced the State industrial body referred to in the agreement;

                             (ii)  an Act of the State, or the agreement, authorises the Industrial Registrar or the Deputy Industrial Registrar to perform or exercise any functions, duties or powers of another State industrial body that has replaced the State industrial body referred to in the agreement; and

                     (b)  the Minister, after consulting the President, has agreed to the Industrial Registry having the following functions:

                              (i)  acting as the registry for the other State industrial body;

                             (ii)  providing administrative support to the other State industrial body;

the Industrial Registry has those functions.

          (1D)  If, after consulting the President, the Minister has made an agreement with an appropriate authority of a State for the Industrial Registry to perform the functions (State Registry functions) of acting as the registry for, and providing administrative support to, a State industrial body referred to in the agreement and:

                     (a)  State Registry functions in relation to the State industrial body referred to in the agreement are expressed to be conferred on the Industrial Registry by or under an Act of the State or the agreement; or

                     (b)  State Registry functions in relation to another State industrial body that has replaced the State industrial body referred to in the agreement are expressed to be conferred on the Industrial Registry by or under an Act of the State or the agreement and the Minister, after consulting the President, has agreed to the Industrial Registry performing those functions in relation to the other State industrial body;

then, subject to the agreement, the Industrial Registry has the State Registry functions in relation to the State industrial body referred to in the agreement or the other State industrial body, as the case may be.

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

64  Registries

             (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.

65  Seals of the Registry

             (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.

66  Annual report of Industrial Registry

             (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 2—Registrars

67  Industrial Registrar

             (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 conferred on the Industrial Registry by this Act, and has such powers as are necessary for the performance of those functions.

          (2A)  If an agreement is made between the Minister and the appropriate authority of a State as mentioned in subsection 63(1A), then, subject to the agreement:

                     (a)  if the Industrial Registrar is appointed under an Act of the State to be the Registrar of a State industrial body referred to in the agreement, or to be the Registrar of another State industrial body as mentioned in subparagraph 63(1C)(a)(i)—the Industrial Registrar has, and must perform, any functions or duties, and may exercise any powers, of the Registrar of the body concerned, whether the functions, duties or powers are conferred by or under that Act or another Act of the State; or

                     (b)  if an Act of the State, or the agreement, is expressed to authorise the Industrial Registrar to perform or exercise any functions, duties or powers of the Registrar of a State industrial body referred to in the agreement or any functions, duties or powers of the Registrar of another State industrial body as mentioned in subparagraph 63(1C)(a)(ii)—the Industrial Registrar has, and must perform, those functions or duties, or may exercise those powers, as the case may be.

          (2B)  If:

                     (a)  under subsection 63(1D) the Industrial Registry has the functions of acting as the registry for, and providing administrative support to, a State industrial body; and

                     (b)  a law of the State is expressed to authorise the Industrial Registrar, or a Registrar, to perform or exercise any functions, duties or powers relevant to the performance of the functions referred to in paragraph (a);

then, subject to the agreement referred to in subsection 63(1D), the Industrial Registrar has, and must perform, those functions or duties, or may exercise those powers, as the case may be.

             (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.

          (4A)  In performing or exercising any functions, duties or powers in relation to a State industrial body as mentioned in subsection (2A) or (2B), the Industrial Registrar must comply with any directions lawfully given by the body.

             (5)  In allocating and managing the resources of the Industrial Registry, the Industrial Registrar shall have regard to the needs of the Commission and the needs of any State industrial body in respect of which the Industrial Registrar or a Deputy Industrial Registrar performs or exercises functions, duties or powers.

68  Tenure of office of Industrial Registrar

             (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.

69  Remuneration and allowances of Industrial Registrar

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.

70  Outside employment of Industrial Registrar

             (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.

71  Disclosure of interests by Industrial Registrar

             (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.

72  Leave of absence of Industrial Registrar

             (1)  Subject to section 87E of the Public Service Act 1922, the Industrial Registrar has such recreation leave entitlements as are determined by the Remuneration Tribunal.

             (2)  The Minister may grant the Industrial Registrar leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines.

73  Resignation by Industrial Registrar

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

74  Termination of appointment of Industrial Registrar

             (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, 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.

75  Deputy Industrial Registrars

             (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 conferred on the Industrial Registry by this Act, and has such powers as are necessary for the performance of those functions.

             (3)  If an agreement is made between the Minister and the appropriate authority of a State as mentioned in subsection 63(1A), then, subject to the agreement:

                     (a)  if a Deputy Industrial Registrar is appointed under an Act of the State to be the Registrar or a Deputy Registrar of a State industrial body referred to in the agreement, or to be the Registrar or a Deputy Registrar of another State industrial body as mentioned in subparagraph 63(1C)(a)(i)—the Deputy Industrial Registrar has, and must perform, any functions or duties, and may exercise any powers, of the Registrar or Deputy Registrar, as the case may be, of the body concerned, whether the functions, duties or powers are conferred by or under that Act or another Act of the State; or

                     (b)  if an Act of the State, or the agreement, is expressed to authorise a Deputy Industrial Registrar or a Deputy Registrar to perform or exercise any functions, duties or powers of the Registrar or a Deputy Registrar of a State industrial body referred to in the agreement or any functions, duties or powers of the Registrar or a Deputy Registrar of another State industrial body as mentioned in subparagraph 63(1C)(a)(ii)—the Deputy Industrial Registrar has, and must perform, those functions or duties, or may exercise those powers, as the case may be.

             (4)  If:

                     (a)  under subsection 63(1D) the Industrial Registry has the functions of acting as the registry for, and providing administrative support to, a State industrial body; and

                     (b)  a law of the State is expressed to authorise the Industrial Registrar, or a Registrar, to perform or exercise any functions, duties or powers relevant to the performance of the functions referred to in paragraph (a);

then, subject to the agreement referred to in subsection 63(1D), each Deputy Industrial Registrar:

                     (c)  has the functions, duties or powers referred to in paragraph (b); and

                     (d)  must perform those functions or duties or may exercise those powers, as the case may be, subject to the directions of the Industrial Registrar.

76  Acting Industrial Registrar

             (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.

77  Acting Deputy Industrial Registrars

             (1)  The Industrial Registrar 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.

78   Oath or affirmation of office of Registrar

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 3—References and appeals

79  References by Registrar to Commission

             (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.

80  Removal of matters before Registrar

             (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.

81  Appeals from Registrar to Commission

             (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.

82  References to Court by Registrar on question of law

             (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

83  Staff

             (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 IVA—The Employment Advocate

Division 1—Functions, powers etc. of the Employment Advocate

83BA  The Employment Advocate

                   There is to be an Employment Advocate.

83BB  Functions

             (1)  The Employment Advocate has the following functions:

                     (a)  providing assistance and advice to employees about their rights and obligations under this Act;

                     (b)  providing assistance and advice to employers (especially employers in small business) about their rights and obligations under this Act;

                     (c)  providing advice to employers and employees, in connection with AWAs, about the relevant award and statutory entitlements and about the relevant provisions of this Act;

                     (d)  performing functions under Part VID, including functions relating to the filing and approval of AWAs and ancillary documents;

                     (e)  investigating alleged breaches of AWAs, alleged contraventions of Part VID and any other complaints relating to AWAs;

                      (f)  investigating contraventions of Part XA;

                     (g)  providing free legal representation to a party in a proceeding under Part VID or Part XA, if the Employment Advocate considers this would promote the enforcement of the provisions of those Parts;

                     (h)  providing aggregated statistical information to the Minister;

                      (i)  any other functions given to the Employment Advocate by this Act or any other Act;

                      (j)  any other functions prescribed by the regulations.

             (2)  In performing his or her functions, the Employment Advocate must have particular regard to:

                     (a)  the needs of workers in a disadvantaged bargaining position (for example: women, people from a non‑English speaking background, young people, apprentices, trainees and outworkers); and

                     (b)  assisting workers to balance work and family responsibilities; and

                     (c)  promoting better work and management practices through Australian workplace agreements.

83BC  Minister’s directions to Employment Advocate

             (1)  The Minister may, by notice published in the Gazette, give directions specifying the manner in which the Employment Advocate must exercise or perform the powers or functions of Employment Advocate (other than powers or functions relating to the approval of AWAs and ancillary documents).

             (2)  The Employment Advocate must comply with the directions.

             (3)  A direction by the Minister is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

83BD  Staff

                   The staff necessary to assist the Employment Advocate are to be persons appointed or employed under the Public Service Act 1922 and made available for the purpose by the Secretary to the Department.

83BE  Delegation by Employment Advocate

             (1)  The Employment Advocate may, by instrument in writing, delegate any of the Employment Advocate’s powers or functions to:

                     (a)  a person who is appointed or employed by the Commonwealth; or

                     (b)  a person who is appointed or employed by a State or Territory.

             (2)  The Employment Advocate’s functions under Part VID relating to the approval of AWAs and ancillary documents can only be delegated to a member of the staff referred to in section 83BD.

             (3)  The Employment Advocate may, by written instrument, delegate a function referred to in paragraph 83BB(a), (b) or (c) to any person.

             (4)  In exercising powers or functions under a delegation, the delegate must comply with any directions of the Employment Advocate.

83BF  Annual report

             (1)  As soon as practicable after the end of each financial year, the Employment Advocate must prepare and give to the Minister a report on the operations of the Employment Advocate during that year.

             (2)  The report must include details of directions given by the Minister during the financial year under section 83BC.

             (3)  The Minister must cause a copy of the report to be laid before each House of the Parliament.

Division 2—Authorised officers

 

83BG  Appointment of authorised officers

             (1)  The Employment Advocate may, by instrument in writing, appoint as an authorised officer:

                     (a)  a person who is appointed or employed by the Commonwealth; or

                     (b)  a person who is appointed or employed by a State or Territory.

             (2)  In exercising powers or performing functions as an authorised officer, an authorised officer must comply with any directions of the Employment Advocate.

             (3)  The Employment Advocate must issue to an authorised officer an identity card in the form prescribed by the regulations. The identity card must contain a recent photograph of the authorised officer.

             (4)  If a person to whom an identity card has been issued ceases to be an authorised officer, the person must immediately return the identity card to the Employment Advocate.

             (5)  A person must not contravene subsection (4) without a reasonable excuse.

Penalty:  1 penalty unit.

             (6)  An authorised officer must carry the identity card at all times when exercising powers or performing functions as an authorised officer.

83BH  Powers of authorised officers

             (1)  An authorised officer may exercise powers under this section for the following purposes (compliance purposes):

                     (a)  for the purpose of ascertaining whether the terms of an AWA have been complied with, or are being complied with;

                     (b)  for the purpose of ascertaining whether the provisions of PartVID or Part XA have been complied with, or are being complied with;

                     (c)  for the purpose of ascertaining whether other provisions of this Act that are prescribed by the regulations have been complied with, or are being complied with.

             (2)  The powers may be exercised at any time during ordinary working hours or at any other time at which it is necessary to do so for compliance purposes.

             (3)  An authorised officer may, without force, enter:

                     (a)  a place of business in which the authorised officer has reasonable cause to believe that work to which an AWA applies is being performed or has been performed; or

                     (b)  a place of business in which the authorised officer has reasonable cause to believe that there are documents relevant to compliance purposes.

             (4)  An authorised officer may do any of the following in a place referred to in subsection (3):

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

                     (b)  as prescribed by the regulations, take samples of any goods or substances;

                     (c)  interview any employee;

                     (d)  require a person who has the custody of, or access to, a document to produce the document to the authorised officer within a specified period;

                     (e)  inspect and copy any document produced to the authorised officer.

             (5)  If a person fails to comply with a requirement under subsection (4) to produce a document, an authorised officer 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).

             (6)  Where a document is produced to an authorised officer under subsection (5), the authorised officer may:

                     (a)  inspect and copy the document; and

                     (b)  if the authorised officer gives a receipt to the person who produced the document—retain the document for as long as necessary for the purpose of exercising powers or performing functions as an authorised officer.

             (7)  While an authorised officer retains a document, the authorised officer must permit the document to be inspected and copied, at any reasonable time, by:

                     (a)  the person otherwise entitled to possession of the document; or

                     (b)  a person authorised by the person otherwise entitled to possession of the document.

             (8)  Before entering a place under this section, an authorised officer must announce that he or she is authorised to enter the place. If the occupier or another person who apparently represents the occupier is present, the authorised officer must produce his or her identity card to that person for inspection.

             (9)  In this section:

copy, in relation to a document, includes take extracts from the document.

Division 3Appointment, conditions of appointment etc. of Employment Advocate

83BI  Appointment of Employment Advocate

             (1)  The Employment Advocate is to be appointed by the Governor-General for a term of up to 5 years.

             (2)  The Employment Advocate holds office on a full-time basis.

83BJ  Remuneration and allowances

             (1)  The Employment Advocate is to be paid the remuneration that is determined by the Remuneration Tribunal. However, if no determination of that remuneration by the Tribunal is in operation, the Employment Advocate is to be paid the remuneration that is prescribed by the regulations.

             (2)  The Employment Advocate is to be paid such allowances as are prescribed by the regulations.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973.

83BK  Outside employment

                   The Employment Advocate must not engage in any paid employment outside the duties of the office without the Minister’s written approval.

83BL  Recreation leave etc.

             (1)  Subject to section 87E of the Public Service Act 1922, the Employment Advocate has such recreation leave entitlements as are determined by the Remuneration Tribunal.

             (2)  The Minister may grant the Employment Advocate other leave of absence on such terms and conditions as the Minister determines. The terms and conditions may include terms and conditions relating to remuneration.

83BM  Resignation

                   The Employment Advocate may resign by giving the Governor-General a signed resignation notice.

83BN  Disclosure of interests

                   The Employment Advocate must give written notice to the Minister of all interests, pecuniary or otherwise, that the Employment Advocate has or acquires and that could conflict with the proper performance of the Employment Advocate’s functions.

83BO  Termination of appointment

             (1)  The Governor-General may terminate the appointment of the Employment Advocate for physical or mental incapacity, misbehaviour, incompetence or inefficiency.

             (2)  The Governor-General must terminate the appointment of the Employment Advocate if the Employment Advocate does any of the following:

                     (a)  is absent from duty (except on leave of absence) for 14 consecutive days, or for 28 days in any period of 12 months;

                     (b)  becomes bankrupt;

                     (c)  applies to take the benefit of any law for the relief of bankrupt or insolvent debtors;

                     (d)  compounds with his or her creditors;

                     (e)  assigns his or her remuneration for the benefit of his or her creditors;

                      (f)  contravenes section 83BN, without a reasonable excuse;

                     (g)  engages in paid employment outside the duties of the office, without the Minister’s written approval.

             (3)  If the Employment Advocate is:

                     (a)  an eligible employee for the purposes of the Superannuation Act 1976; or

                     (b)  a member of the superannuation scheme established by deed under the Superannuation Act 1990;

the Governor-General may, with the consent of the Employment Advocate, retire the Employment Advocate from office on the ground of physical or mental incapacity.

             (4)  For the purposes of the Superannuation Act 1976, the Employment Advocate is taken to have been retired from office on the ground of invalidity if:

                     (a)  the Employment Advocate is removed or retired from office on the ground of physical or mental incapacity; and

                     (b)  the Commonwealth Superannuation Board of Trustees No. 2 gives a certificate under section 54C of the Superannuation Act 1976.

             (5)  For the purposes of the Superannuation Act 1990, the Employment Advocate is taken to have been retired from office on the ground of invalidity if:

                     (a)  the Employment Advocate is removed or retired from office on the ground of physical or mental incapacity; and

                     (b)  the Commonwealth Superannuation Board of Trustees No. 1 gives a certificate under section 13 of the Superannuation Act 1990.

83BP  Acting appointment

             (1)  The Minister may appoint a person to act as Employment Advocate:

                     (a)  if there is a vacancy in the office of Employment Advocate, whether or not an appointment has previously been made to the office; or

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

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

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

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

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

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

83BQ  Other terms and conditions of appointment

                   The Employment Advocate holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as are determined by the Governor-General in writing.

Division 4Miscellaneous

83BS  Identity of AWA parties not to be disclosed

             (1)  A person (the entrusted person) must not disclose protected information that the entrusted person knows, or has reasonable grounds to believe, will identify another person (the AWA party) as being, or having been, a party to an AWA.

Penalty:  Imprisonment for 6 months.

             (2)  Each of the following is an exception to the prohibition in subsection (1):

                     (a)  the disclosure is made by the entrusted person in the course of performing functions or duties as an AWA official;

                     (b)  the disclosure is authorised by the regulations;

                     (c)  the disclosure is required or permitted by another Act;

                     (d)  the disclosure is authorised in writing by the AWA party.

             (3)  For the purposes of determining the burden of proof in proceedings for an offence against subsection (1), the exceptions in subsection (2) are taken to be part of the description of the offence.

             (4)  In this section:

AWA official means:

                     (a)  the Employment Advocate; or

                     (b)  a delegate of the Employment Advocate; or

                     (c)  an authorised officer.

protected information means information that was acquired by the entrusted person:

                     (a)  in the course of performing functions or duties as an AWA official; or

                     (b)  from an AWA official who disclosed the information as authorised by the regulations.

83BT  Publication of AWAs etc. by Employment Advocate

                   Subject to section 83BS, the Employment Advocate may publish or make available copies of, or extracts from, AWAs or ancillary documents.

Part VInspectors

    Do not delete these spaces. Division placeholder

84  Inspectors

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

             (2)  The Minister may, by instrument:

                     (a)  appoint a person appointed or employed under the Public Service Act 1922 to be an inspector; or

                     (b)  appoint a person, other than a person referred to in paragraph (a), to be an inspector for such period as is specified in the instrument of appointment, being a period not longer than a period prescribed for the purposes of this paragraph.

             (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)  Subject to subsection (4A), an inspector has such powers and functions in relation to the observance of this Act, awards and certified agreements as are conferred by this Act.

          (4A)  A person appointed under paragraph (2)(b) to be an inspector has such powers and functions in relation to the observance of this Act, awards and certified agreements as are conferred on an inspector by this Act and specified in his or her instrument of appointment.

             (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).

85  Identity cards

             (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.

86  Powers of inspectors

             (1)  For the purpose of ascertaining whether awards and certified agreements, 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 or certified agreement 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.

87  Inspector to investigate matters affecting safety of employees

             (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.

88  Annual report

             (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 1A—Objects of Part

88A  Objects of Part

                   The objects of this Part are to ensure that:

                     (a)  wages and conditions of employment are protected by a system of enforceable awards established and maintained by the Commission; and

                     (b)  awards act as a safety net of fair minimum wages and conditions of employment; and

                     (c)  awards are simplified and suited to the efficient performance of work according to the needs of particular workplaces or enterprises; and

                     (d)  the Commission’s functions and powers in relation to making and varying awards are performed and exercised in a way that encourages the making of agreements between employers and employees at the workplace or enterprise level.

Division 1—Functions of Commission generally

88B  Performance of Commission’s functions under this Part

             (1)  The Commission must perform its functions under this Part in a way that furthers the objects of the Act and, in particular, the objects of this Part.

             (2)  In performing its functions under this Part, the Commission must ensure that a safety net of fair minimum wages and conditions of employment is established and maintained, having regard to the following:

                     (a)  the need to provide fair minimum standards for employees in the context of living standards generally prevailing in the Australian community;

                     (b)  economic factors, including levels of productivity and inflation, and the desirability of attaining a high level of employment;

                     (c)  when adjusting the safety net, the needs of the low paid.

             (3)  In performing its functions under this Part, the Commission must have regard to the following:

                     (a)  the need for any alterations to wage relativities between awards to be based on skill, responsibility and the conditions under which work is performed;

                     (b)  the need to support training arrangements through appropriate trainee wage provisions;

                     (c)  the need to provide a supported wage system for people with disabilities;

                     (d)  the need to apply the principle of equal pay for work of equal value without discrimination based on sex;

                     (e)  the need to prevent and eliminate discrimination because of, or for reasons including, race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

89  General functions of Commission

The functions of the Commission are:

                     (a)  to prevent and settle industrial disputes:

                              (i)  so far as possible, by conciliation; and

                             (ii)  as a last resort and within the limits specified in this Act, by arbitration; and

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

89A  Scope of industrial disputes

Industrial dispute normally limited to allowable award matters

             (1)  For the following purposes, an industrial dispute is taken to include only matters covered by subsections (2) and (3):

                     (a)  dealing with an industrial dispute by arbitration;

                     (b)  preventing or settling an industrial dispute by making an award or order;

                     (c)  maintaining the settlement of an industrial dispute by varying an award or order.

Allowable award matters

             (2)  For the purposes of subsection (1) the matters are as follows:

                     (a)  classifications of employees and skill‑based career paths;

                     (b)  ordinary time hours of work and the times within which they are performed, rest breaks, notice periods and variations to working hours;

                     (c)  rates of pay generally (such as hourly rates and annual salaries), rates of pay for juniors, trainees or apprentices, and rates of pay for employees under the supported wage system;

                     (d)  piece rates, tallies and bonuses;

                     (e)  annual leave and leave loadings;

                      (f)  long service leave;

                     (g)  personal/carer’s leave, including sick leave, family leave, bereavement leave, compassionate leave, cultural leave and other like forms of leave;

                     (h)  parental leave, including maternity and adoption leave;

                      (i)  public holidays;

                      (j)  allowances;

                     (k)  loadings for working overtime or for casual or shift work;

                      (l)  penalty rates;

                    (m)  redundancy pay;

                     (n)  notice of termination;

                     (o)  stand‑down provisions;

                     (p)  dispute settling procedures;

                     (q)  jury service;

                      (r)  type of employment, such as full‑time employment, casual employment, regular part‑time employment and shift work;

                      (s)  superannuation;

 

                      (t)  pay and conditions for outworkers, but only to the extent necessary to ensure that their overall pay and conditions of employment are fair and reasonable in comparison with the pay and conditions of employment specified in a relevant award or awards for employees who perform the same kind of work at an employer’s business or commercial premises.

             (3)  The Commission’s power to make an award dealing with matters covered by subsection (2) is limited to making a minimum rates award.

Limitations on Commission’s powers

             (4)  The Commission’s power to make or vary an award in relation to matters covered by paragraph (2)(r) does not include:

                     (a)  the power to limit the number or proportion of employees that an employer may employ in a particular type of employment; or

                     (b)  the power to set maximum or minimum hours of work for regular part‑time employees.

             (5)  Paragraph (4)(b) does not prevent the Commission from including in an award:

                     (a)  provisions setting a minimum number of consecutive hours that an employer may require a regular part‑time employee to work; or

                     (b)  provisions facilitating a regular pattern in the hours worked by regular part‑time employees.

             (6)  The Commission may include in an award provisions that are incidental to the matters in subsection (2) and necessary for the effective operation of the award.

Exceptional matters may be included in industrial dispute

             (7)  Subsection (1) does not exclude a matter (the exceptional matter) from an industrial dispute if the Commission is satisfied of all the following:

                     (a)  a party to the dispute has made a genuine attempt to reach agreement on the exceptional matter;

                     (b)  there is no reasonable prospect of agreement being reached on the exceptional matter by conciliation, or further conciliation, by the Commission;

                     (c)  it is appropriate to settle the exceptional matter by arbitration;

                     (d)  the issues involved in the exceptional matter are exceptional issues;

                     (e)  a harsh or unjust outcome would apply if the industrial dispute were not to include the exceptional matter.

Anti‑discrimination clause

             (8)  Nothing in this section prevents the Commission from including a model anti‑discrimination clause in an award.

Note:          A model anti‑discrimination clause was established by the Commission in the Full Bench decision dated 9 October 1995 (print M5600).

Interpretation

             (9)  In this section, outworker means an employee who, for the purposes of the business of the employer, performs work at private residential premises or at other premises that are not business or commercial premises of the employer.

90  Commission to take into account the public interest

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, in particular, the objects of this Part; 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.

90A   Commission to have regard to operation of Superannuation Guarantee legislation when making National Wage Case decision

In making a National Wage Case decision, the Commission must have regard to the operation of:

                     (a)  the Superannuation Guarantee Charge Act 1992; and

                     (b)  the Superannuation Guarantee (Administration) Act 1992.

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

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.

92  Commission to have regard to compliance with disputes procedures

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.

93  Commission to take account of Racial Discrimination Act, Sex Discrimination Act and Disability Discrimination Act

In the performance of its functions, the Commission shall take account of the principles embodied in the Racial Discrimination Act 1975, the Sex Discrimination Act 1984 and the Disability Discrimination Act 1992 relating to discrimination in relation to employment.

93A  Commission to take account of Family Responsibilities Convention

In performing its functions, the Commission must take account of the principles embodied in the Family Responsibilities Convention, in particular those relating to:

                     (a)  preventing discrimination against workers who have family responsibilities; or

                     (b)  helping workers to reconcile their employment and family responsibilities.

94  Limitation on powers of Commission relating to discrimination and preference

                   The Commission does not have power to include terms in an award that require or permit, or have the effect of requiring or permitting, any conduct that would contravene Part XA.

95  No automatic flow-on of terms of certain agreements

                   The Commission does not have power to include terms in an award that are based on the terms of a certified agreement unless the Commission is satisfied that including the terms in the award:

                     (a)  would not be inconsistent with principles established by a Full Bench that apply in relation to determining wages and conditions of employment; and

                     (b)  would not be otherwise contrary to the public interest.

96  Schemes of apprenticeship

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.

97  Safety, health and welfare of employees

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.

98  Commission to act quickly

The Commission shall perform its functions as quickly as practicable.

98A  Commission to avoid technicalities and facilitate fair conduct of proceedings

                   The Commission must perform its functions in a way that avoids unnecessary technicalities and facilitates the fair and practical conduct of any proceedings under this Act.

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

99  Notification of industrial disputes

             (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.

100  Disputes to be dealt with by conciliation where possible

             (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:

                     (a)  the Presidential Member must publish reasons for not doing so; and

                     (b)  the Commission must deal with the alleged industrial dispute by arbitration.

101  Findings as to industrial disputes

             (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.

102  Action to be taken where dispute referred for conciliation

             (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.

103  Completion of conciliation proceeding

             (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 the agreement has been certified under Division 4 of Part VIB; 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.

104  Arbitration

             (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.

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

             (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.

106  Allowable award matters to be dealt with by Full Bench

             (1)  After the commencement of this section, a Full Bench of the Commission may establish principles about the making or varying of awards in relation to each of the allowable award matters.

             (2)  After such principles (if any) have been established, the power of the Commission to make or vary an award is exercisable only by a Full Bench unless the contents of the award:

                     (a)  give effect to determinations of a Full Bench made after the commencement of this section; or

                     (b)  are consistent with principles established by a Full Bench after the commencement of this section.

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

107  Reference of disputes to Full Bench

             (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.

108  President may deal with certain proceedings

             (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)  Subject to subsection (2A), 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 Division 4 of Part VIB.

             (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.

109  Review on application by Minister

             (1)  The Minister may apply to the President for a review by a Full Bench of an award or order, or a decision relating to the making of an award or order, made by a member of the Commission if it appears to the Minister that the award, order or decision 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.

110  Procedure of Commission

             (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 3—Particular powers of Commission

111  Particular powers of Commission

             (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, including one by consent of the parties, in relation to all or any of the matters in dispute, including:

                              (i)  a provisional award or order; or

                             (ii)  an interim award or order;

                     (c)  in accordance with Division 4 of Part VIB, 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 a certified agreement; or

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

                                        (C)  has contravened a recommendation of the Commission under section 111AA;

                     (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.

       (1AA)  The Commission must not, in relation to an industrial dispute, dismiss or refrain as mentioned in paragraph (1)(g) because of subparagraph (1)(g)(i), (ii) or (iii) unless it has made a determination and findings under section 101 in relation to the dispute.

          (1D)  The Commission must decide as quickly as it can whether to make an interim award if the Commission considers that such an award may be necessary to protect, for an interim period, the wages and conditions of employment of the employees whom the award would cover.

           (1E)  Subsection (1D) does not limit:

                     (a)  the cases where the Commission may decide to make an interim award; or

                     (b)  the matters to which the Commission may have regard in deciding whether to make such an award.

             (2)  Unless the context otherwise requires, a reference in this section (except subsection (1AA)) 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.

111AAA  Commission to cease dealing with industrial dispute in certain circumstances

             (1)  If the Commission is satisfied that a State award or State employment agreement governs the wages and conditions of employment of particular employees whose wages and conditions of employment are the subject of an industrial dispute, the Commission must cease dealing with the industrial dispute in relation to those employees, unless the Commission is satisfied that ceasing would not be in the public interest.

             (2)  In determining the public interest for the purposes of subsection (1), the Commission must give primary consideration to:

                     (a)  the views of the employees referred to in subsection (1); and

                     (b)  the views of the employer or employers of those employees.

             (3)  The Commission must inform itself as quickly as it can about the views referred to in subsection (2), and may inform itself in such manner as it thinks fit.

             (4)  In this section:

cease dealing, in relation to an industrial dispute, means:

                     (a)  to dismiss the whole or a part of a matter to which the industrial dispute relates; or

                     (b)  to refrain from further hearing or from determining the industrial dispute or part of the industrial dispute.

111AA  Recommendations by consent

             (1)  If:

                     (a)  the Commission is exercising powers of conciliation in relation to a particular matter; and

                     (b)  all the parties request the Commission to conduct a hearing and make recommendations about particular aspects of the matter on which they are unable to reach agreement (which may be all aspects of the matter); and

                     (c)  the Commission is satisfied that all the parties:

                              (i)  have made a genuine attempt to agree about those aspects of the matter; and

                             (ii)  have agreed to comply with the Commission’s recommendations;

the Commission must conduct a hearing and make recommendations about those aspects of the matter.

             (2)  This section does not prevent the Commission from making recommendations in other circumstances.

111A  Hearings in relation to discriminatory awards

             (1)  If an award or certified agreement is referred to the Commission under section 50A of the Sex Discrimination Act 1984, the Commission must convene a hearing to review the award or agreement.

             (2)  In a review under this section:

                     (a)  in the case of an award—the parties to the proceeding in which the award was made are parties to the proceeding on the review, and are entitled to notice of the hearing; and

                    (aa)  in the case of a certified agreement—the persons bound by the agreement, and the employees whose employment is subject to the agreement, are parties to the proceeding on the review, and are entitled to notice of the hearing; and

                     (b)  the Sex Discrimination Commissioner is a party to the proceeding.

113  Power to set aside or vary awards

             (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.

          (2A)  If:

                     (a)  an award or certified agreement has been referred to the Commission under section 50A of the Sex Discrimination Act 1984; and

                     (b)  the Commission considers that the award or agreement is a discriminatory award or agreement;

the Commission must take the necessary action to remove the discrimination, by setting aside, setting aside the terms of, or varying, the award or agreement.

          (2C)  Before taking action under subsection (2A) in relation to a certified agreement, the Commission must give the persons bound by the agreement and the employees whose employment is subject to the agreement an opportunity to amend the agreement so as to remove the discrimination.

             (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.

             (5)  In this section:

discriminatory award or agreement means an award or certified agreement that:

                     (a)  has been referred to the Commission under section 50A of the Sex Discrimination Act 1984; and

                     (b)  requires a person to do any act that would be unlawful under Part II of the Sex Discrimination Act 1984, except for the fact that the act would be done in direct compliance with the award or agreement.

For the purposes of this definition, the fact that an act is done in direct compliance with the award or agreement does not of itself mean that the act is reasonable.

113A  Commission to include enterprise flexibility provisions in awards

             (1)  So far as the Commission considers appropriate, an award must establish a process for agreements to be negotiated, at the enterprise or workplace level, about how the award (as it applies to the enterprise or workplace concerned) should be varied so as to make the enterprise or workplace operate more efficiently according to its particular needs.

             (2)  This section is not limited by subsection 89A(6).

113B  Variation of award to give effect to agreement negotiated under enterprise flexibility provision

             (1)  This section applies if an application is made for variation of an award, as it applies to an enterprise or workplace, for the purpose of giving effect to an agreement made under a provision included in the award under section 113A.

             (2)  The Commission does not have power to vary the award for that purpose unless it is satisfied that the variation:

                     (a)  would only deal with allowable award matters; and

                     (b)  would be a minimum rates award; and

                     (c)  if it included a variation to rates of pay provided in the award, would provide for minimum rates of pay consistent with sections 88A and 88B.

             (4)  An organisation of employees is entitled to be heard on the application if, and only if:

                     (a)  it is a party to the award; and

                     (b)  it has a member or members whose employment would be regulated by the variation.

             (5)  However, the Commission must not refuse to vary the award merely because an organisation refuses to agree or consent to the variation, if the Commission is satisfied that the refusal is unreasonable.

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

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.

118A  Orders about representation rights of organisations of employees

             (1)  Subject to this section and subsection 202(6), the Commission may, on the application of an organisation, an employer or the Minister, make the following orders in relation to a demarcation dispute:

                     (a)  an order that an organisation of employees is to have the right, to the exclusion of another organisation or other 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 is to have that right;

                     (c)  an order that an organisation of employees is not to 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.

          (1A)  The Commission must not make an order unless:

                     (a)  it has decided under section 100 not to refer the dispute for conciliation; or

                     (b)  a conciliation proceeding in relation to the dispute is completed, but the dispute has not been fully settled.

          (1B)  The Commission must not make an order unless the Commission is satisfied that:

                     (a)  the conduct, or threatened conduct, of an organisation to which the order would relate, or of an officer, member or employee of the organisation:

                              (i)  is preventing, obstructing or restricting the performance of work; or

                             (ii)  is harming the business of an employer; or

                     (b)  the consequences referred to in subparagraph (a)(i) or (ii):

                              (i)  have ceased, but are likely to recur; or

                             (ii)  are imminent;

                            as a result of such conduct or threatened conduct. 

             (2)  In considering whether to make an order, the Commission must have regard to the wishes of the employees who are affected by the dispute, and, where the Commission considers it appropriate, is also to have regard to:

                     (a)  the effect of any order on the operations (including operating costs, work practices, efficiency and productivity) of an employer who is a party to the dispute or who is a member of an organisation that is a party to the dispute; and

                     (b)  any agreement or understanding 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; and

                     (c)  the consequences of not making an order for any employer, employees or organisation involved in the dispute; and

                     (d)  any other order made by the Commission, in relation to another demarcation dispute involving the organisation to which the order under this section would relate, that the Commission considers to be relevant.

Note:          Under section 135, the Commission may order that a vote of the members of the organisation concerned in the dispute be taken by secret ballot for the purpose of finding out their attitudes to the dispute.

             (3)  An order may be subject to conditions or limitations.

             (4)  The powers of the Commission under this section are exercisable only by a Full Bench or Presidential Member.

             (5)  An organisation to which an order applies must comply with the order.

             (6)  The Court may, on application by the Minister or a person or organisation affected by an order made under subsection (1), make such orders as it thinks fit to ensure compliance with that order.

119  Compulsory conferences

             (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.

120  Relief not limited to claim

Subject to section 89A, 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.

120A  Orders of Commission on exceptional matters

             (1)  Each exceptional matters order must relate only to a single matter.

Note 1:       An exceptional matters order is an order made by the Commission on a matter that is allowed to be included in an industrial dispute because of subsection 89A(7).

Note 2:       Exceptional matters orders are published under section 143, in the same way as other orders of the Commission.

             (2)  The Commission must not make an exceptional matters order unless the Commission  is satisfied that making the order is in the public interest, and consistent with the objects of this Act.

             (3)  The Commission must not make an exceptional matters order that would apply to more than a single business unless the Commission is satisfied that such an order is an appropriate manner of settling the matter in dispute.

             (4)  An exceptional matters order must be made by a Full Bench, unless the order relates to a single business (within the meaning of Part VIB).

             (5)  An exceptional matters order ceases to be in force 2 years after it is made, and cannot be extended.

120B  Commission to report on junior rates of pay

             (1)  Before 22 June 1999, a Full Bench must prepare a report for the Minister on the feasibility of replacing junior rates with non‑discriminatory alternatives.

             (2)  The report must include assessments of:

                     (a)  whether it is desirable to replace junior rates with non‑discriminatory alternatives; and

                     (b)  the consequences for youth employment of abolishing junior rates; and

                     (c)  the utility of junior rates:

                              (i)  for different types of employment; and

                             (ii)  for different industries; and

                            (iii)  in the school‑to‑work transition.

             (3)  The Minister must cause a copy of the report to be tabled in each House of the Parliament as soon as practicable after the Minister receives it.

             (4)  In this section, junior rates means junior rates of pay.

121  Power to override certain laws affecting public sector employment

             (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 Safety, Rehabilitation and Compensation Act 1988, the Long Service Leave (Commonwealth Employees) Act 1976, the Superannuation Act 1976 or the Superannuation Act 1990; or

                     (b)  a prescribed Act or enactment, or prescribed provisions of an Act or enactment.

123  Power to provide special rates of wages

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.

124  Commission not to deal with claims for payments in relation to periods of industrial action

             (1)  The Commission does not have power to deal with a claim for the making of any payment to employees in relation to a period during which those employees engaged, or engage, in industrial action.

             (2)  Subsection (1) applies to a claim for the making of a payment in relation to a period, whether before or after the making of the claim, or before or after the commencement of this section.

126  Stand-down applications

             (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.

127  Orders to stop or prevent industrial action

             (1)  If it appears to the Commission that industrial action is happening, or is threatened, impending or probable, in relation to:

                     (a)  an industrial dispute; or

                     (b)  the negotiation or proposed negotiation of an agreement under Division 2 of Part VIB; or

                     (c)  work that is regulated by an award or a certified agreement;

the Commission may, by order, give directions that the industrial action stop or not occur.

             (2)  The Commission may make such an order of its own motion, or on the application of:

                     (a)  a party to the industrial dispute (if any); or

                     (b)  a person who is directly affected, or who is likely to be directly affected, by the industrial action; or

                     (c)  an organisation of which a person referred to in paragraph (b) is a member.

             (3)  The Commission must hear and determine an application for an order under this section as quickly as practicable.

             (4)  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.

             (5)  A person or organisation to whom an order under subsection (1) is expressed to apply must comply with the order.

             (6)  The Court may, on the application of a person or organisation affected by an order under subsection (1), grant an injunction on such terms as the Court considers appropriate if it is satisfied that another person or organisation:

                     (a)  has engaged in conduct that constitutes a contravention of subsection (5); or

                     (b)  is proposing to engage in conduct that would constitute such a contravention.

             (7)  If, in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (6).

127AA  Awards and orders dealing with rights of entry

             (1)  A provision of an award or order that requires or authorises an officer or employee of an organisation:

                     (a)  to enter premises:

                              (i)  occupied by an employer who is bound by the award or order; or

                             (ii)  in which work to which the award or order applies is being carried on; or

                     (b)  to inspect or view any work, material, machinery, appliance, article, document or other thing on such premises; or

                     (c)  to interview an employee on such premises;

is unenforceable.

             (2)  This section does not apply to an order made under section 285G.

127A  Unfair contracts with independent contractors: Court’s powers

             (1)  In this section and in section 127B:

contract means:

                     (a)  a contract for services that:

                              (i)  is binding on an independent contractor; and

                             (ii)  relates to the performance of work by the independent contractor, other than work for the private and domestic purposes of the other party to the contract; and

                     (b)  any condition or collateral arrangement relating to such a contract.

Note:          the meaning of contract is limited by section 127C for Constitutional reasons.

             (2)  Application may be made to the Court to review a contract on either or both of the following grounds:

                     (a)  the contract is unfair;

                     (b)  the contract is harsh.

             (3)  An application under subsection (2) may be made only by:

                     (a)  a party to the contract; or

                     (b)  an organisation of employees of which the independent contractor is (or has applied to become) a member, if it is acting with the written consent of the independent contractor; or

                     (c)  an organisation or association of employers of which the person contracting for the services is (or has applied to become) a member, if it is acting with the written consent of the person.

             (4)  In reviewing the contract, the Court may have regard to:

                     (a)  the relative strength of the bargaining positions of the parties to the contract and, if applicable, any persons acting on behalf of the parties; and

                     (b)  whether any undue influence or pressure was exerted on, or any unfair tactics were used against, a party to the contract; and

                     (d)  whether the contract provides total remuneration that is, or is likely to be, less than that of an employee performing similar work; and

                     (e)  any other matter that the Court thinks relevant.

             (5)  If the Court forms the opinion that a ground referred to in subsection (2) is established in relation to the whole or part of the contract, it must record its opinion, stating whether the opinion relates to the whole or a specified part of the contract.

             (6)  The Court may form the opinion that a ground referred to in subsection (2) is established in relation to the whole or part of the contract even if the ground was not canvassed in the application.

             (7)  The Court must exercise its powers under this section in a way that furthers the objects of this Act as far as practicable.

127B  Court may make orders about unfair contracts

             (1)  If the Court records an opinion under section 127A in relation to a contract, it may make one or more of the following orders in relation to the opinion:

                     (a)  an order setting aside the whole or part of the contract, as the case may be;

                     (b)  an order varying the contract.

             (2)  An order may only be made for the purpose of placing the parties to the contract as nearly as practicable on such a footing that the ground on which the opinion is based no longer applies.

             (3)  While the application is pending, the Court may make an interim order if it thinks it is desirable to do so to preserve the position of a party to the contract.

             (4)  An order takes effect from the date of the order or a later date specified in the order.

             (5)  A party to the contract may apply to the Court to enforce an order by injunction or otherwise as the Court thinks fit.

             (6)  This section does not limit any other rights of a party to the contract.

127C  Application of sections 127A and 127B

             (1)  Sections 127A and 127B apply only as follows, namely:

                     (a)  in relation to a contract to which a constitutional corporation is a party;

                     (b)  in relation to a contract relating to the business of a constitutional corporation;

                     (c)  in relation to a contract entered into by a constitutional corporation for the purposes of the business of the corporation;

                     (d)  in relation to a contract relating to work in trade or commerce to which paragraph 51(i) of the Constitution applies;

                     (e)  in relation to a contract so far as it affects matters that take place in or are otherwise connected with a Territory;

                      (f)  in relation to a contract to which the Commonwealth or a Commonwealth authority is a party.

             (2)  In this section:

constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies;

contract has the same meaning as in section 127A.

128  State authorities may be restrained from dealing with disputes

             (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, an order of the Commission or a certified agreement; or

                     (c)  a matter that is the subject of a proceeding before the Commission;

                   other than by:

                     (d)  facilitating the entering into of a State employment agreement; or

                     (e)  approving a State employment agreement;

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.

129  Joint sessions of Commission

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.

130  Reference of industrial dispute to local industrial board for report

             (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.

131  Boards of reference

             (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.

132  Discussions about conciliation and arbitration processes

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.

133  Industry consultative councils

             (1)  The Commission must encourage and facilitate the establishment and effective operation of consultative councils for particular industries.

             (2)  The Commission must encourage the participants in an industry to use the relevant consultative council:

                     (a)  to develop measures to improve efficiency and competitiveness in that industry; and

                     (b)  to address barriers to workplace reform in that industry.

             (3)  In order to promote the effective operation of a consultative council for an industry, a Presidential Member may, if the President consents:

                     (a)  chair meetings of the council; or

                     (b)  take part in the council’s discussions; or

                     (c)  nominate another member of the Commission to chair meetings of the council or take part in its discussions.

             (4)  The President may consent under subsection (3) only if he or she is satisfied that the council properly represents organisations and associations of employers and organisations of employees in the industry.

134  Power of inspection

             (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, who is not an officer or employee of an organisation, 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;

                      (f)  an award or an order of the Commission has been made; or

                     (g)  a certified agreement is in operation.

Division 4—Ballots ordered by Commission

135  Commission may order secret ballot

             (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.

          (2A)  If:

                     (a)  the Commission is required under Part VIB to be satisfied that a valid majority of persons employed at a particular time whose employment is or will be subject to an agreement have genuinely made the agreement or given an approval; and

                     (b)  the Commission is not so satisfied;

then:

                     (c)  the Commission may order that a vote be taken by secret ballot (with or without a provision for absent voting), in accordance with directions given by the Commission, of persons employed at the time of the ballot whose employment is or will be subject to the agreement to determine whether they would make the agreement or give the approval; and

                     (d)  if a majority of the validly cast votes is in favour of making the agreement or giving the approval, the Commission is taken to be satisfied of the requirement.

          (2B)  If it appears to the Commission that:

                     (a)  industrial action is being taken or the taking of industrial action is threatened, impending or probable; and

                     (b)  the industrial action relates to a bargaining period (within the meaning of Division 8 of Part VIB); and

                     (c)  finding out, in relation to a matter, the attitudes of the employees whose employment will be subject to the proposed agreement concerned might help to stop or to 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 employees be taken by secret ballot (with or without a provision for absent voting), in accordance with directions given by the Commission, for the purpose of finding out their attitudes in relation 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.

136  Application by members of organisation for secret ballot

             (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.

          (8A)  If:

                     (a)  the Commission has made an order for a secret ballot under subsection 135(2A); and

                     (b)  before the vote is taken, the Commission forms the view that the secret ballot should not be proceeded with because it has satisfied itself that the requirement mentioned in paragraph (a) of that subsection has been met;

the Commission must revoke the order.

          (8B)  If:

                     (a)  the Commission has made an order for a secret ballot under subsection 135(2B); and

                     (b)  before the vote is taken, the Commission forms the view that the secret ballot should not be proceeded with because it has satisfied itself that:

                              (i)  the matters giving rise to the industrial action have been, or are about to be, settled; or

                             (ii)  the industrial action has stopped or been prevented, or is about to stop or be prevented;

the Commission must 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.

137  Scope of directions for secret ballots

             (1)  Directions given by the Commission under subsection 135(1), (2), (2A) or (2B) 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.

138  Conduct of ballot

             (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 (if any) 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.

139  Commission to have regard to result of ballot

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 subsection 135(1), (2) or (2B) or section 136, the Commission shall have regard to the result of the ballot.

140  Certain members not required to obey directions of organisation

             (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 5—Common rules

141  Common rules

             (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.

142  Variation of common rules

             (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 within the prescribed time 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 within the prescribed time 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.

             (8)  In this section:

the prescribed time means the period, after the publication of the notice under subsection (4), prescribed by Rules of the Commission made under section 48.

Division 6—Awards of Commission

143  Making and publication of awards etc.

             (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.

          (1A)  For the purposes of subsection (1), none of the following is an award or an order affecting an award:

                     (a)  a decision to certify an agreement under Part VIB;

                     (b)  an order under section 170MX.

          (1B)  The Commission must, if it considers it appropriate, ensure that a decision or determination covered by subsection (1):

                     (a)  does not include matters of detail or process that are more appropriately dealt with by agreement at the workplace or enterprise level; and

                     (b)  does not prescribe work practices or procedures that restrict or hinder the efficient performance of work; and

                     (c)  does not contain provisions that have the effect of restricting or hindering productivity, having regard to fairness to employees.

          (1C)  The Commission must ensure that a decision or determination covered by subsection (1):

                     (a)  where appropriate, contains facilitative provisions that allow agreement at the workplace or enterprise level, between employers and employees (including individual employees), on how the award provisions are to apply; and

                     (b)  where appropriate, contains provisions enabling the employment of regular part‑time employees; and

                     (c)  is expressed in plain English and is easy to understand in structure and content; and

                     (d)  does not contain provisions that are obsolete or that need updating; and

                     (e)  where appropriate, provides support to training arrangements through appropriate trainee wages and a supported wage system for people with disabilities; and

                      (f)  does not contain provisions that discriminate against an employee because of, or for reasons including, race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

          (1D)  A decision or determination covered by subsection (1) does not discriminate against an employee for the purposes of paragraph (1C)(f) merely because:

                     (a)  it provides for a junior rate of pay; or

                     (b)  it discriminates, in respect of particular employment, on the basis of the inherent requirements of that employment; or

                     (c)  it discriminates, in respect of employment as a member of the staff of an institution that is conducted in accordance with the teachings or beliefs of a particular religion or creed:

                              (i)  on the basis of those teachings or beliefs; and

                             (ii)  in good faith.

           (1E)  Paragraph (1D)(a) does not apply to a decision or determination made by the Commission more than 3 years after 22 June 1997, except where the Commission decides, on a case‑by‑case basis, that the paragraph should apply. Decisions by the Commission as to whether the paragraph should apply must be made by the Commission in accordance with principles established by a Full Bench.

             (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 one or more of these 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;

                            (iii)  in the case of a decision—it is a decision to certify an agreement under Part VIB;

                            (iv)  the decision or determination is, in the Commission’s opinion, an order affecting a certified agreement;

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

                            (ia)  in the case of a decision to certify an agreement under Part VIB—a copy of the agreement; and

                             (ii)  a list specifying each party who appeared at the hearing of the proceeding concerned.

          (2A)  The Commission must ensure that a decision or determination covered by subsection (2) is expressed in plain English and is easy to understand in structure and content.

             (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

                            (ia)  in the case of a decision to certify an agreement under Part VIB—a copy of the agreement; 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 each of the following are available for inspection at each registry:

                              (i)  the decision or determination; and

                             (ii)  in the case of a decision to certify an agreement under Part VIB—a copy of the agreement; and

                            (iii)  any written reasons received by the Registrar for the decision or determination.

             (4)  The Industrial Registrar must ensure that the following are published as soon as practicable:

                     (a)  a decision or determination covered by subsection (1) or (2), except:

                              (i)  a decision to certify an ordinary Part VIB agreement; or

                             (ii)  a decision or determination that is, in the Commission’s opinion, an order affecting such an agreement;

                     (b)  any written reasons for a decision or determination covered by paragraph (a) that are received by the Registrar;

                     (c)  a multiple-business agreement a copy of which is given to a Registrar under subparagraph (2)(d)(ia).

          (4A)  In subsection (4):

multiple-business agreement has the same meaning as in Part VIB.

ordinary Part VIB agreement means an agreement under Division 2 or 3 of Part VIB, other than a multiple-business agreement.

             (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.

144  Form of awards

An award shall be framed so as best to express the decision of the Commission and to avoid unnecessary technicalities.

145  Date of awards

                   The date of an award is the day when the award was signed under subsection 143(1).

146  Commencement of awards

             (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.

147  Term of awards

             (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.

148  Continuation of awards

             (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; or

                     (b)  sick leave with pay;

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.

149  Persons bound by awards

             (1)  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.

          (1A)  For the purposes of subsection (1), the Australian Capital Territory Government Service is taken to be the successor to the business of the Australian Capital Territory in relation to the transitional staff within the meaning of the A.C.T. Self-Government (Consequential Provisions) Act 1988.

150  Awards of Commission are final

             (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.

151  Registrar to review operation of awards

             (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.

152  Awards to prevail over State laws and State awards

             (1)  Subject to this section, if a State law or a State award 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.

          (1A)  If a State law or a State award makes provision in respect of the termination of an employee’s employment, any provision in a Federal award that also makes provision in respect of the termination of employment of the employee is not to be taken to show an intention to cover the field to the exclusion of that State law or State award.

             (2)  If:

                     (a)  but for this subsection, an award would become binding on an employer in respect of an employee at a particular time; and

                     (b)  immediately before that time, the wages and conditions of employment of the employee were regulated by a State employment agreement;

then the award is not binding on any person in respect of the employee, while the wages and conditions of employment of the employee continue to be regulated by the agreement.

             (3)  If, at a particular time, a State employment agreement that is made after the commencement of this subsection would regulate wages and conditions of employment of an employee but for the fact that an award is binding on an employer in respect of the employee, then:

                     (a)  the award does not prevent the agreement from coming into force and regulating the wages and conditions of employment of the employee; and

                     (b)  while the agreement continues to regulate those wages and conditions, the award is not binding on any person in respect of the employee.

             (4)  In subsection (3), award does not include an award made under subsection 170MX(3).

             (5)  Subsections (2) and (3) do not apply to a State employment agreement unless the agreement is one that was approved by a State industrial authority under a State Act that required the authority, before approving the agreement, to be satisfied:

                     (a)  that the employees covered by the agreement are not disadvantaged in comparison to their entitlements under the relevant award; and

                     (b)  that the agreement was genuinely made, or that the agreement was not made under duress or that the agreement was made without coercion; and

                     (c)  that the agreement covers all the employees whom it would be reasonable for the agreement to cover, having regard to matters (if any) specified in the State Act (such as the nature of the work performed under the agreement and the relationship between the employees in the part of the business covered by the agreement and the remainder of the employees in the business).

153  Validity of State laws and State awards

             (1)  A person interested may apply to the Court for a declaration that a State law dealing with an industrial matter, or a State award, 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.

154  Reprints of awards as varied

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.

155  Expressions used in awards

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 7—Disputes relating to boycotts

156  Application of Division

                   This Division applies 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 or a certified agreement;

                             (ii)  the dispute involves an organisation of employees or a member or officer of such an organisation.

157  Notification of disputes

             (1)  If a person applies to the Court under section 80 of the Trade Practices Act 1974 for an injunction restraining another person from engaging in boycott conduct in relation to which there is a dispute 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 to which this Division applies or may apply.

             (3)  If a Registrar is notified of a dispute under this section, the Registrar must inform the President.

158  Powers of Commission

             (1)  Subject to subsection (2), if:

                     (a)  a person notifies the President or a Registrar under subsection 157(1) of a dispute to which this Division applies; or

                     (b)  the Minister notifies the President or a Registrar under subsection 157(2) of a dispute to which this Division applies or may apply; or

                     (c)  the President otherwise becomes aware of a dispute 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 Australian Competition and Consumer Commission is a party to the proceedings;

the Commission is not empowered to settle the dispute under subsection (1) unless the Australian Competition and Consumer Commission consents, by written notice given to the Commission, to the Commission exercising its powers under that subsection in relation to the dispute.

159  Exercise of powers

                   If the Commission is empowered under subsection 158(1) to settle a dispute to which this Division applies by conciliation, the President must refer it to a Presidential Member for conciliation.

160  Parties

             (1)  The parties to a proceeding before the Commission in relation to a dispute to which this Division applies are:

                     (a)  if the dispute arose in relation to the employment of members of an organisation of employees—that organisation; and

                     (b)  employers of such employees; and

                     (c)  organisations of which any such employers are members; and

                     (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 who is not already a party—that person; and

                     (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 must give notice of the proceeding to:

                     (a)  every person who is a party to the proceeding under paragraph (1)(d), (e) or (f); and

                     (b)  every other person that the Presidential Member directs is to be given notice.

             (3)  Subsection (1) does not affect the operation of sections 43 and 44.

161  Application of other provisions of Act

                   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 to which this Division applies as if:

                     (a)  a reference to an industrial dispute were a reference to the dispute to which this Division applies; and

                     (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.

162  Trade Practices Act and application laws not affected

             (1)  This Division does not affect the operation of the Trade Practices Act 1974.

             (2)  This Division is not intended to exclude the operation of any application law, as defined in section 150A of the Trade Practices Act 1974, to the extent that the application law is capable of operating concurrently with this Division.

163  Interpretation

                   Unless the contrary intention appears, expressions used in or in relation to this Division that are used in the Trade Practices Act 1974 have, in this Act, the same respective meanings as those expressions have in the Trade Practices Act 1974.

166A  Restriction on certain actions in tort

             (1)  Subject to this section, an action in tort under the law of a State or Territory may not be brought by a person against an organisation of employees, or an officer, member or employee of such an organisation, in relation to conduct by the organisation, or by the officer, member or employee acting in that capacity, in contemplation or furtherance of claims that are the subject of an industrial dispute unless the Commission:

                     (a)  has certified in writing as mentioned in paragraph (6)(a) or (c) in respect of the conduct; or

                     (b)  has certified in writing as mentioned in paragraph (6)(b) in relation to the person in respect of the conduct.

             (2)  Subsection (1) does not apply to:

                     (a)  conduct that has resulted in:

                              (i)  personal injury; or

                             (ii)  wilful or reckless destruction of, or damage to, property; or

                            (iii)  the unlawful taking, keeping or use of property; or

                     (b)  conduct arising out of a demarcation dispute; or

                     (c)  conduct arising out of a dispute relating to a claim for payment to employees in respect of a period during which the employees engaged, or engage, in industrial action; or

                     (d)  conduct that is in breach of a direction given by the Commission or a State industrial authority.

             (3)  A person who wants to bring an action in tort in respect of conduct to which subsection (1) applies may give written notice to a member of the Commission or a Registrar stating that the person wants to bring the action.

             (4)  If a notice under subsection (3) is given to a Registrar, he or she must tell a member of the Commission as soon as practicable.

             (5)  If such a notice is given, the Commission must take immediate steps to try, or to continue to try, by the exercise of its powers under this Act, to stop the conduct.

             (6)  If:

                     (a)  after the Commission starts to exercise conciliation powers in relation to the industrial dispute it forms the opinion that it is not likely to be able to stop the conduct promptly; or

                     (b)  the Commission decides that it would cause substantial injustice to the person who gave a notice under subsection (3) in respect of the conduct if the person were prevented from bringing the action to which the notice relates while the Commission is exercising conciliation powers in relation to the industrial dispute; or

                     (c)  the Commission has not stopped the conduct by the end of 72 hours after the notice was given under subsection (3) in respect of the conduct;

the Commission must immediately certify in writing to that effect.

             (7)  If:

                     (a)  the conduct stops before the end of the 72 hours referred to in paragraph (6)(c); and

                     (b)  after the conduct stopped, other conduct occurred; and

                     (c)  in the Commission’s opinion, the other conduct is substantially related to the first‑mentioned conduct;

then, for the purposes of paragraph (6)(c):

                     (d)  the other conduct is taken to be part of the first‑mentioned conduct; and

                     (e)  the period of the first‑mentioned conduct is taken to include the period of the other conduct.

Part VIA—Minimum Entitlements of Employees

Division 2—Equal remuneration for work of equal value

170BA  Object

The object of this Division is to give effect, or further effect, to:

                     (a)  the Anti-Discrimination Conventions; and

                     (b)  the Equal Remuneration Recommendation, 1951, which the General Conference of the International Labour Organisation adopted on 29 June 1951 and is also known as Recommendation No. 90; and

                     (c)  the Discrimination (Employment and Occupation) Recommendation, 1958, which the General Conference of the International Labour Organisation adopted on 25 June 1958 and is also known as Recommendation No. 111.

170BB  Equal remuneration for work of equal value

             (1)  A reference in this Division to equal remuneration for work of equal value is a reference to equal remuneration for men and women workers for work of equal value.

             (2)  An expression has in subsection (1) the same meaning as in the Equal Remuneration Convention.

Note:   Article 1 of the Convention provides that the term equal remuneration for men and women workers for work of equal value refers to rates of remuneration established without discrimination based on sex.

170BC  Orders requiring equal remuneration

             (1)  Subject to this Division, the Commission may make such orders as it considers appropriate to ensure that, for employees covered by the orders, there will be equal remuneration for work of equal value.

             (2)  Without limiting subsection (1), an order under this Division may provide for such increases in rates (including minimum rates) of remuneration (within the meaning of the Equal Remuneration Convention) as the Commission considers appropriate to ensure that, for employees covered by the order, there will be equal remuneration for work of equal value.

             (3)  However, the Commission may make an order under this Division only if:

                     (a)  the Commission is satisfied that, for the employees to be covered by the order, there is not equal remuneration for work of equal value; and

                     (b)  the order can reasonably be regarded as appropriate and adapted to giving effect to:

                              (i)  one or more of the Anti-Discrimination Conventions; or

                             (ii)  the provisions of the Recommendation referred to in paragraph 170BA (b) or (c).

170BD  Orders only on application

The Commission must only make such an order if it has received an application for the making of an order under this Division from:

                     (a)  an employee, or a trade union whose rules entitle it to represent the industrial interests of employees, to be covered by the order; or

                     (b)  the Sex Discrimination Commissioner.

170BE  No order if adequate alternative remedy exists

The Commission must refrain from considering the application, or from determining it, if the Commission is satisfied that there is available to the applicant, or to the employees whom the applicant represents, an adequate alternative remedy that:

                     (a)  exists under a law of the Commonwealth (other than this Division) or under a law of a State or Territory; and

                     (b)  will ensure, for the employees concerned, equal remuneration for work of equal value.

170BF  Immediate or progressive introduction of equal remuneration

The order may implement equal remuneration for work of equal value when the order takes effect. However, if it is not deemed feasible to implement it immediately, the order may implement it in stages (as provided in the order).

170BG  Employer not to reduce remuneration

             (1)  An employer must not reduce an employee’s remuneration (within the meaning of the Equal Remuneration Convention) for the reason, or for reasons including the reason, that an application or order has been made under this Division.

             (2)  If subsection (1) is contravened, the purported reduction is of no effect.

170BH  Division not to limit other rights

Subject to section 170BHA, this Division is not intended to limit any right that a person or trade union may otherwise have to secure equal remuneration for work of equal value.

170BHA  Applications under this Division

             (1)  An application must not be made under this Division for an order to secure equal remuneration for work of equal value for an employee if proceedings for an alternative remedy:

                     (a)  to secure such remuneration for the employee; or

                     (b)  against unequal remuneration for work of equal value for the employee;

have begun:

                     (c)  under another provision of this Act; or

                     (d)  under another law of the Commonwealth; or

                     (e)  under a law of a State or Territory.

             (2)  Subsection (1) does not prevent an application under this Division if the proceedings for the alternative remedy:

                     (a)  have been discontinued by the party who initiated the proceedings; or

                     (b)  have failed for want of jurisdiction.

             (3)  If an application under this Division has been made for an order to secure equal remuneration for work of equal value for an employee, a person is not entitled to take proceedings for an alternative remedy under a provision or law of a kind referred to in subsection (1):

                     (a)  to secure such remuneration for the employee; or

                     (b)  against unequal remuneration for work of equal value for the employee.

             (4)  Subsection (3) does not prevent the taking of proceedings for an alternative remedy if the proceedings under this Division:

                     (a)  have been discontinued by the party who initiated the proceedings; or

                     (b)  have failed for want of jurisdiction.

170BI  Additional effect of Division

             (1)  Because of this section, this Division has the effect it would have if section 170BA were repealed and paragraph 170BC (3)(b) were omitted. That effect is additional to, and does not prejudice, the effect that this Division has otherwise than because of this section.

             (2)  The Commission must determine by arbitration an application made under this Division as it has effect because of this section.

             (3)  The Commission may make an order under this Division (as it so has effect) only if:

                     (a)  it considers that the order is necessary to prevent an industrial dispute about equal remuneration for work of equal value; and

                     (b)  it has given to each organisation or other person who, in its opinion, would be likely to be a party to the dispute an opportunity to be heard in relation to the making of the order.

             (4)  An order so made must be expressed to bind only such of the following as the order specifies:

                     (a)  the organisations and other persons to whom the Commission has given, as required by subsection (3), an opportunity to be heard;

                     (b)  the respective members of those organisations.

Division 3—Termination of employment

Subdivision A—Object, application and definitions

170CA  Object

             (1)  The principal object of this Division is:

                     (a)  to establish procedures for conciliation in relation to certain matters relating to the termination or proposed termination of an employee’s employment in certain circumstances; and

                     (b)  to provide, if the conciliation process is unsuccessful, for recourse to arbitration or to a court depending on the grounds on which the conciliation was sought; and

                     (c)  to provide for remedies appropriate to a case where, on arbitration, a termination is found to be harsh, unjust or unreasonable; and

                     (d)  to provide for sanctions where, on recourse to a court, a termination or proposed termination is found to be unlawful; and

                     (e)  by those procedures, remedies and sanctions, and by orders made in the circumstances set out in Subdivisions D and E, to assist in giving effect to the Termination of Employment Convention.

             (2)  The procedures and remedies referred to in paragraphs (1)(a) and (b), and the manner of deciding on and working out such remedies, are intended to ensure that, in the consideration of an application in respect of a termination of employment, a “fair go all round” is accorded to both the employer and employee concerned.

Note:          The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.

170CB  Application

             (1)  Subdivision B applies, in so far as it relates to an application to the Commission for relief in relation to the termination of employment of an employee on the ground that that termination was harsh, unjust or unreasonable, if the employee concerned was, before the termination:

                     (a)  a Commonwealth public sector employee; or

                     (b)  a Territory employee; or

                     (c)  a Federal award employee who was employed by a constitutional corporation; or

                     (d)  a Federal award employee who was a waterside worker, maritime employee or flight crew officer, employed in the course of, or in relation to, trade or commerce between Australia and a place outside Australia, between the States, within a Territory, between a State and a Territory, or between 2 Territories.

             (2)  Subdivision B applies, in so far as it relates to an application to the Commission for relief in relation to the termination of employment of an employee on the ground of a contravention of all or any of sections 170CK, 170CL, 170CM and 170CN, if the employee concerned is an employee in relation to whose termination of employment Subdivision C applies in accordance with this section.

             (3)  Subdivisions C, D and E apply in relation to the termination of employment of an employee.

             (4)  Without prejudice to their effect apart from this subsection, Subdivisions C, D and E also apply in relation to the termination of employment of:

                     (a)  a Commonwealth public sector employee; or

                     (b)  a Territory employee; or

                     (c)  an employee who was employed by a constitutional corporation; or

                     (d)  an employee who was a waterside worker, maritime employee or flight crew officer, employed in the course of, or in relation to, trade or commerce between Australia and a place outside Australia, between the States, within a Territory, between a State and a Territory, or between 2 Territories.

             (5)  Without prejudice to their effect apart from this subsection, Subdivisions C, D and E also apply in relation to the termination of employment of an employee for the purpose of assisting in giving effect to the Termination of Employment Convention.

             (6)  Without prejudice to its effect apart from this subsection, section 170CK also applies in relation to the termination of employment of an employee for the purpose of giving effect to the conventions referred to in that section.

170CC  Regulations may exclude employees

             (1)  The regulations may exclude from the operation of specified provisions of this Division specified classes of employees included in any of the following classes:

                     (a)  employees engaged under a contract of employment for a specified period of time or a specified task;

                     (b)  employees serving a period of probation or qualifying period;

                     (c)  employees engaged on a casual basis for a short period;

                     (d)  employees whose terms and conditions of employment are governed by special arrangements providing particular protection in respect of termination of employment either generally or in particular circumstances;

                     (e)  employees in relation to whom the operation of the provisions causes or would cause substantial problems because of:

                              (i)  their particular conditions of employment; or

                             (ii)  the size or nature of the undertakings in which they are employed.

             (2)  Without limiting, by implication, the class of persons that may be prescribed for the purposes of paragraph (1)(e), the regulations may identify as a class of employees for the purposes of that paragraph employees not employed under award conditions and to whom subsection (3) or (4) applies.

             (3)  This subsection applies to an employee if:

                     (a)  the employee’s remuneration immediately before the termination of employment was not wholly or partly determined on the basis of commission or piece rates; and

                     (b)  the rate of remuneration applicable to the employee immediately before the termination exceeds a rate specified, or worked out in a manner specified, in the regulations (the specified rate).

             (4)  This subsection applies to an employee if:

                     (a)  the employee’s remuneration immediately before the termination of employment was wholly or partly determined on the basis of commission or piece rates; and

                     (b)  in accordance with the regulations, the rate of remuneration that is taken to be applicable to the employee immediately before the termination exceeds the specified rate.

170CD  Definitions

             (1)  In this Division:

Commonwealth public sector employee means a person in employment:

                     (a)  as an officer or employee of the Australian Public Service; or

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

                     (c)  by authority of a law of the Commonwealth.

Note:          Commonwealth authority is defined in subsection 4(1).

Federal award employee means an employee any of whose terms and conditions of employment are governed by an award, a certified agreement or an AWA.

termination or termination of employment means termination of employment at the initiative of the employer.

Territory employee means any person employed in a                 Territory other than Norfolk Island.

             (2)  An expression used in Subdivision C, D or E of this Division has the same meaning as in the Termination of Employment Convention.

             (3)  For the purposes of this Division, an employee is taken to be employed under award conditions if both wages and conditions of employment of the employee are regulated by awards, certified agreements or AWAs, that bind the employer of the employee.

Subdivision B—Application to Commission for relief in respect of termination of employment

170CE  Application to Commission to deal with termination under this Subdivision

             (1)  Subject to subsection (5), an employee whose employment has been terminated by the employer may apply to the Commission for relief in respect of the termination of that employment:

                     (a)  on the ground that the termination was harsh, unjust or unreasonable; or

                     (b)  on the ground of an alleged contravention of section 170CK, 170CL, 170CM or 170CN; or

                     (c)  on any combination of grounds in paragraph (b) or on a ground or grounds in paragraph (b) and the ground in paragraph (a).

             (2)  Subject to subsection (6), an employee whose employment is proposed to be terminated by the employer may apply to the Commission for relief on the ground of an alleged contravention of section 170CL.

             (3)  Subject to subsection (6), if:

                     (a)  an employee’s employment has been terminated by the employer; and

                     (b)  a trade union’s rules entitle it to represent the industrial interests of the employee;

the union may, on behalf of the employee, apply to the Commission for relief on the ground or grounds of an alleged contravention of one or more of sections 170CK, 170CM and 170CN.

             (4)  Subject to subsection (6), if an employee’s employment has been terminated, or is proposed to be terminated, by the employer:

                     (a)  an inspector; or

                     (b)  a trade union:

                              (i)  whose members include the employee; and

                             (ii)  whose rules entitle it to represent the industrial interests of the employee; or

                     (c)  an officer or employee of such a union—if the union’s rules authorise the officer or employee to act on the union’s behalf;

may apply to the Commission for relief on the ground of an alleged contravention of section 170CL.

             (5)  An application under subsection (1) may not be made:

                     (a)  on the ground referred to in paragraph (1)(a) or on grounds that include that ground—unless, under subsection 170CB(1), Subdivision B applies to that application; or

                     (b)  on a ground referred to in paragraph (1)(b)—unless Subdivision C applies to that application.

             (6)  An application under subsection (2), (3) or (4) may not be made on a ground referred to in that subsection unless Subdivision C applies to that application.

             (7)  An application under subsection (1) must be lodged within 21 days after the day on which the termination took effect.

             (8)  The Commission may accept an application that is lodged out of time if the Commission considers that it would be unfair not to do so.

             (9)  An application under subsection (1) may be discontinued by the employee in accordance with rules made under section 48. The employee may do so whether or not the employer and the employee have agreed to settle the matter.

170CF  Conciliation

             (1)  When an application is lodged with the Commission, the Commission must attempt to settle the matter to which the application relates by conciliation.

             (2)  If the Commission is satisfied that all reasonable attempts to settle the matter by conciliation are, or are likely to be, unsuccessful so far as concerns at least one ground of the application, the Commission:

                     (a)  must issue a certificate in writing stating that it is so satisfied in respect of that ground or each such ground; and

                     (b)  must indicate to the parties the Commission’s assessment of the merits of the application in so far as it relates to that ground or to each such ground; and

                     (c)  if the Commission thinks fit, may recommend that the applicant elect not to pursue a ground or grounds of the application (whether or not also recommending other means of resolving the matter).

170CFA  Elections to proceed to arbitration or to begin court proceedings

             (1)  If the certificate given by the Commission under subsection 170CF(2) identifies only the ground referred to in paragraph 170CE(1)(a) as a ground where conciliation is, or is likely to be, unsuccessful, the applicant must elect either to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable or not to proceed.

             (2)  If the certificate given by the Commission under subsection 170CF(2) identifies only:

                     (a)  the ground referred to in paragraph 170CE(1)(a); and

                     (b)  the ground of an alleged contravention of section 170CM;

as grounds where conciliation is, or is likely to be, unsuccessful, the applicant must elect to do either, both, or neither of the following:

                     (c)  to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable;

                     (d)  to begin proceedings in a court of competent jurisdiction for an order under section 170CR in respect of the alleged contravention of section 170CM.

             (3)  If the certificate given by the Commission under subsection 170CF(2) identifies:

                     (a)  the ground referred to in paragraph 170CE(1)(a); and

                     (b)  a ground or grounds of an alleged contravention of one or more of sections 170CK, 170CL and 170CN;

as grounds where conciliation is, or is likely to be, unsuccessful, the applicant must elect to do either or neither of the following:

                     (c)  to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable;

                     (d)  to begin proceedings in the Court for an order under section 170CR in respect of the alleged contravention, or of any one or more of the alleged contraventions.

             (4)  If the certificate given by the Commission under subsection 170CF(2) identifies only a ground or grounds of an alleged contravention of one or more of sections 170CK, 170CL, 170CM and 170CN as the ground or grounds where conciliation is, or is likely to be, unsuccessful, the applicant must elect to do either, both or neither of the following:

                     (a)  so far as concerns an alleged contravention of a section or sections other than section 170CM—to begin proceedings in the Court for an order under section 170CR in respect of the alleged contravention, or of any one or more of the alleged contraventions;

                     (b)  so far as concerns an alleged contravention of section 170CM—to begin proceedings in a court of competent jurisdiction for an order under section 170CR in respect of the alleged contravention.

             (5)  If the certificate given by the Commission under subsection 170CF(2) identifies:

                     (a)  the ground referred to in paragraph 170CE(1)(a); and

                     (b)  the ground of an alleged contravention of section 170CM; and

                     (c)  a ground or grounds of an alleged contravention of one or more of sections 170CK, 170CL and 170CN;

as grounds where conciliation is, or is likely to be, unsuccessful, the applicant must elect:

                     (d)  to do either or both of the things permitted in subsection (2); or

                     (e)  to do either or both of the things permitted in subsection (4); or

                      (f)  to do none of those things.

             (6)  An election under subsection (1), (2), (3), (4) or (5) must:

                     (a)  be made in writing; and

                     (b)  be lodged with the Commission not later than 7 days after the day of issue of the certificate by the Commission under subsection 170CF(2) in relation to the application.

             (7)  If an applicant fails to lodge with the Commission an election under subsection (1), (2), (3), (4) or (5) within the period required under subsection (6), the application concerned is taken to have been discontinued by the applicant at the end of that period for all purposes other than the making of an election out of time in accordance with subsection (8).

             (8)  The Commission may accept an election that is lodged out of time if the Commission considers that it would be unfair not to do so, and, if the Commission accepts such an election, the original application is taken not to have been discontinued in spite of subsection (7).

170CG  Arbitration

             (1)  If:

                     (a)  the Commission has issued a certificate under subsection 170CF(2) regarding conciliation of an application relating to a termination of employment; and

                     (b)  the applicant has made an election under subsection 170CFA(1), (2), (3) or (5) to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable;

the Commission may so proceed to arbitrate the matter.

             (2)  Neither the making of an election under subsection 170CFA(1), (2), (3) or (5) to proceed to arbitration nor the commencement of that arbitration prevents further conciliation of the matter being attempted, or the parties from settling the matter, at any time before an order is made under section 170CH.

             (3)  In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:

                     (a)  whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer’s undertaking, establishment or service; and

                     (b)  whether the employee was notified of that reason; and

                     (c)  whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and

                     (d)  if the termination related to unsatisfactory performance by the employee—whether the employee had been warned about that unsatisfactory performance before the termination; and

                     (e)  any other matters that the Commission considers relevant.

170CH  Remedies on arbitration

             (1)  Subject to this section, the Commission may, on completion of the arbitration, make an order that provides for a remedy of a kind referred to in subsection (3), (4) or (6) if it has determined that the termination was harsh, unjust or unreasonable.

             (2)  The Commission must not make an order under subsection (1) unless the Commission is satisfied, having regard to all the circumstances of the case including:

                     (a)  the effect of the order on the viability of the employer’s undertaking, establishment or service; and

                     (b)  the length of the employee’s service with the employer; and

                     (c)  the remuneration that the employee would have received, or would have been likely to receive, if the employee’s employment had not been terminated; and

                     (d)  the efforts of the employee (if any) to mitigate the loss suffered by the employee as a result of the termination; and

                     (e)  any other matter that the Commission considers relevant;

that the remedy ordered is appropriate.

             (3)  If the Commission considers it appropriate, the Commission may make an order requiring the employer to reinstate the employee by:

                     (a)  reappointing the employee to the position in which the employee was employed immediately before the termination.

                     (b)  appointing the employee to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination.

             (4)  If the Commission makes an order under subsection (3) and considers it appropriate to do so, the Commission may also make:

                     (a)  any order that the Commission thinks appropriate to maintain the continuity of the employee’s employment; and

                     (b)  subject to subsection (5)—any order that the Commission thinks appropriate to cause the employer to pay to the employee an amount in respect of the remuneration lost, or likely to have been lost, by the employee because of the termination.

             (5)  If, as a result of an application under section 170CP, a court has awarded an amount of damages for a failure to give notice of a termination as required by section 170CM, any amount ordered to be paid by the Commission under paragraph (4)(b) in respect of the termination is to be reduced accordingly.

             (6)  If the Commission thinks that the reinstatement of the employee is inappropriate, the Commission may, if the Commission considers it appropriate in all the circumstances of the case, make an order requiring the employer to pay the employee an amount ordered by the Commission in lieu of reinstatement.

             (7)  Subject to subsection (8), in determining an amount for the purposes of an order under subsection (6), the Commission must have regard to all the circumstances of the case including:

                     (a)  the effect of the order on the viability of the employer’s undertaking, establishment or service; and

                     (b)  the length of the employee’s service with the employer; and

                     (c)  the remuneration that the employee would have received, or would have been likely to receive, if the employee’s employment had not been terminated; and

                     (d)  the efforts of the employee (if any) to mitigate the loss suffered by the employee as a result of the termination; and

                     (e)  any other matter that the Commission considers relevant.

             (8)  In fixing an amount under subsection (6) for an employee who was employed under award conditions immediately before the termination, the Commission must not fix an amount that exceeds the total of the following amounts:

                     (a)  the total amount of remuneration received (other than remuneration received for any period of leave without full pay) by the employee for any period of employment with the employer during the period of 6 months immediately before the termination; and

                     (b)  if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.

             (9)  In fixing an amount under subsection (6) for an employee who was not employed under award conditions immediately before the termination, the Commission must not fix an amount that exceeds:

                     (a)  the total of the amounts determined under subsection (8) if the employee were an employee covered by the subsection; or

                     (b)  the amount of $32,000, as indexed from time to time in accordance with a formula prescribed by the regulations;

whichever is the lower amount.

           (10)  For the avoidance of doubt, an order by the Commission under paragraph (4)(b) or under subsection (6) may permit the employer concerned to pay the amount required in instalments specified in the order.

170CI  Orders made on arbitration are binding

                   Subject to any right of appeal to a Full Bench of the Commission, an order made by the Commission under section 170CH is final and binding between the parties.

170CJ  Commission may order payment of costs

             (1)  If the Commission is satisfied that a person or organisation made an application under section 170CE vexatiously or without reasonable cause, the Commission may, on an application by the employer under this section, make an order for costs against the person or organisation.

             (2)  If:

                     (a)  the Commission has begun arbitrating a matter the subject of an application under section 170CE; and

                     (b)  the Commission is satisfied that a party to the proceeding has acted unreasonably in failing to discontinue the matter before the Commission or to agree to terms of settlement that could lead to the discontinuance of the matter before the conclusion of the arbitration;

the Commission may, on an application under this section by the other party to the proceeding, make an order for costs against the first-mentioned party.

             (3)  If:

                     (a)  a person or organisation has made an application under section 170CE; and

                     (b)  the person or organisation elects, under subsection 170CFA(1), (2), (3) or (5) to proceed to arbitration; and

                     (c)  after the making of that election the person or organisation discontinues the matter before the Commission;

the Commission may, on an application made under this section by the employer, make an order for costs against the person or organisation if the Commission is satisfied that the person or organisation has acted unreasonably in failing to discontinue the application at an earlier time.

             (4)  An application for an order for costs under this section must be made within 14 days after the determination or discontinuance of the proceedings before the Commission arising under an application under section 170CE.

             (5)  A schedule of costs may be prescribed in relation to items of expenditure likely to be incurred in respect of an application to the Commission under section 170CE.

             (6)  Without limiting, by implication, the generality of the items of expenditure for which the schedule may provide, those items may include:

                     (a)  legal and professional costs and disbursements; and

                     (b)  expenses arising from the representation of a party by a person or organisation other than on a legal professional basis; and

                     (c)  expenses of witnesses.

             (7)  If a schedule of costs is prescribed for the purposes of subsection (5), then, in awarding costs under this section, the Commission:

                     (a)  is not limited to the items of expenditure appearing in the schedule; but

                     (b)  if an item does appear in the schedule—must not award costs in respect of that item at a rate or of an amount in excess of the rate or amount appearing in the schedule.

Subdivision C—Unlawful termination of employment by employer

170CK  Employment not to be terminated on certain grounds

             (1)  In addition to the principal object of this Division set out in section 170CA, the additional object of this section is to make provisions that are intended to assist in giving effect to:

                     (a)  the Convention concerning Discrimination in respect of Employment and Occupation, a copy of the English text of which is set out in Schedule 1 to the Human Rights and Equal Opportunity Commission Act 1986; and

                     (b)  the Family Responsibilities Convention.

             (2)  Except as provided by subsection (3) or (4), an employer must not terminate an employee’s employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:

                     (a)  temporary absence from work because of illness or injury within the meaning of the regulations;

                     (b)  trade union membership or participation in trade union activities outside working hours or, with the employer’s consent, during working hours;

                     (c)  non-membership of a trade union;

                     (d)  seeking office as, or acting or having acted in the capacity of, a representative of employees;

                     (e)  the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;

                      (f)  race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;

                     (g)  refusing to negotiate in connection with, make, sign, extend, vary or terminate an AWA;

                     (h)  absence from work during maternity leave or other parental leave.

             (3)  Subsection (2) does not prevent a matter referred to in paragraph (2)(f) from being a reason for terminating employment if the reason is based on the inherent requirements of the particular position concerned.

             (4)  Subsection (2) does not prevent a matter referred to in paragraph (2)(f) from being a reason for terminating a person’s employment as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the employer terminates the employment in good faith to avoid injury to the religious susceptibilities of adherents of that religion or creed.

170CL  Employer to notify CES of proposed terminations in certain cases

             (1)  This section applies if an employer decides to terminate the employment of 15 or more employees for reasons of an economic, technological, structural or similar nature, or for reasons including such reasons.

             (2)  As soon as practicable after so deciding and before terminating an employee’s employment because of the decision, the employer must give to the Commonwealth Employment Service a written notice of the intended terminations that sets out:

                     (a)  the reasons for the terminations; and

                     (b)  the number and categories of employees likely to be affected; and

                     (c)  the time when, or the period over which, the employer intends to carry out the terminations.

             (3)  The employer must not terminate an employee’s employment pursuant to the decision unless the employer has complied with subsection (2).

170CM  Employer to give notice of termination

             (1)  Subject to subsection (8), an employer must not terminate an employee’s employment unless:

                     (a)  the employee has been given the required period of notice (see subsections (2) and (3)); or

                     (b)  the employee has been paid the required amount of compensation instead of notice (see subsections (4) and (5)); or

                     (c)  the employee is guilty of serious misconduct, that is, misconduct of such a nature that it would be unreasonable to require the employer to continue the employment of the employee concerned during the required period of notice (see subsection (7)).

             (2)  The required period of notice is to be worked out as follows:

                     (a)  first work out the period of notice using the table at the end of this subsection; and

                     (b)  then increase the period of notice by 1 week if the employee:

                              (i)  is over 45 years old; and

                             (ii)  has completed at least 2 years of continuous service with the employer.

                                                  

Employee’s period of continuous service with the employer

Period of notice

Not more than 1 year

At least 1 week

More than 1 year but not more than 3 years

At least 2 weeks

More than 3 years but not more than 5 years

At least 3 weeks

More than 5 years

At least 4 weeks

             (3)  For the purposes of subsection (2), the regulations may prescribe events or other matters that must be disregarded, or must in prescribed circumstances be disregarded, in ascertaining a period of continuous service.

             (4)  The required amount of compensation instead of notice must equal or exceed the total of all amounts that, if the employee’s employment had continued until the end of the required period of notice, the employer would have become liable to pay to the employee because of the employment continuing during that period.

             (5)  That total must be worked out on the basis of:

                     (a)  the employee’s ordinary hours of work (even if they are not standard hours); and

                     (b)  the amounts ordinarily payable to the employee in respect of those hours, including (for example) allowances, loading and penalties; and

                     (c)  any other amounts payable under the employee’s contract of employment.

             (6)  The regulations may make provision for or in relation to amounts that are taken to be payable under a contract of employment for the purposes of paragraph (5)(c) in relation to an employee whose remuneration before the termination was determined wholly or partly on the basis of commission or piece rates.

             (7)  Without limiting the generality of the reference to serious misconduct in paragraph (1)(c), the regulations may identify:

                     (a)  particular conduct; or

                     (b)  conduct in particular circumstances;

that falls within that reference.

             (8)  The regulations may exclude from the operation of this section terminations of employment occurring in specified circumstances that relate to the succession, assignment or transmission of the business of the employer concerned.

170CN  Employer not to contravene Commission order about employment termination

                   An employer must not terminate an employee’s employment in contravention of an order in force under section 170FA.

170CO  Contravention of this Subdivision not an offence

                   A contravention of section 170CK, 170CL, 170CM or 170CN is not an offence.

170CP  Application to courts in relation to alleged contravention of section 170CK, 170CL, 170CM or 170CN

             (1)  Subject to subsection (5), an employee may apply under this section to the Court for an order under section 170CR in respect of an alleged contravention of one or more of sections 170CK, 170CL and 170CN by his or her employer.

             (2)  Subject to subsection (5), an employee may apply under this section to the Court or to a court of competent jurisdiction as defined in section 177A for an order under section 170CR in respect of an alleged contravention of section 170CM by his or her employer.

             (3)  Subject to subsection (5), a trade union that has made an application under section 170CE on behalf of an employee on the ground of an alleged contravention of one or more of sections 170CK, 170CM and 170CN may apply to a court under this section for an order under section 170CR in respect of that alleged contravention or each of those alleged contraventions.

             (4)  Subject to subsection (5), an inspector, a trade union, or a trade union officer or employee who has made an application under section 170CE in respect of an alleged contravention of section 170CL may apply to the Court under this section for an order under section 170CR in respect of that alleged contravention.

             (5)  An application under subsection (1), (2), (3) or (4) in respect of an alleged contravention of section 170CK, 170CL, 170CM or 170CN may not be made to a court unless the applicant:

                     (a)  has received a certificate under subsection 170CF(2) regarding conciliation of an application made wholly or partly on the ground of the alleged contravention; and

                     (b)  has elected under section 170CFA to begin proceedings in that court for an order under section 170CR in respect of the alleged contravention.

             (6)  The application must be made within 14 days after the lodgment of an election under subsection 170CFA(6).

 

             (7)  A court may accept an application that is lodged out of time if the court considers that it would be unfair not to do so.

170CQ  Proof of issues in relation to alleged contravention of section 170CK

                   In any proceedings under section 170CP relating to a termination of employment in contravention of section 170CK for a reason (a proscribed reason) set out in a paragraph of subsection (2) of that section:

                     (a)  it is not necessary for the employee to prove that the termination was for a proscribed reason; but

                     (b)  it is a defence in the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason (other than a proscribed reason to which subsection 170CK(3) or (4) applies).

170CR  Orders available to courts

             (1)  If the Court is satisfied that an employer has contravened section 170CK or 170CN in relation to the termination of employment of an employee, the Court may make one or more of the following orders:

                     (a)  an order imposing on the employer a penalty of not more than $10,000;

                     (b)  an order requiring the employer to reinstate the employee;

                     (c)  subject to subsection (2), an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate;

                     (d)  any other order that the Court thinks necessary to remedy the effect of such a termination;

                     (e)  any other consequential orders.

             (2)  Subsections 170CH(8), (9) and (10) apply in relation to an order mentioned in paragraph (1)(c) of this section as if a reference to the Commission in those subsections were a reference to the Court.

             (3)  If the Court is satisfied that an employer has contravened section 170CL in relation to a decision to terminate the employment of employees, the Court may make either or both of the following orders:

                     (a)  an order imposing on the employer a penalty of not more than $1,000;

                     (b)  an order requiring the employer not to terminate the employment of employees pursuant to the decision, except as permitted by the order.

             (4)  Subject to subsection (5), if a court to which an application is made under subsection 170CP(2) or (3) is satisfied that an employer has contravened section 170CM in relation to the termination of the employment of an employee, that court may make an order requiring the employer to pay to the employee an amount of damages equal to the amount which, if it had been paid by the employer to the employee when the employment was terminated, would have resulted in the employer not contravening that section.

             (5)  If the Commission has made an order under subsection 170CH(4) requiring the employer to pay to the employee an amount in respect of the remuneration lost, or likely to have been lost, by the employee because of the termination, an order under subsection (4) of this section must not be made.

             (6)  A court to which an application is made under section 170CP must not grant an injunction in respect of a proposed contravention of section 170CK, 170CL, 170CM or 170CN.

Note:          As well as the remedies provided in this Subdivision for contravention of section 170CK, 170CL, 170CM or 170CN, there are provisions in other parts of the Act that relate, in part, to termination of employment. See, in particular, sections 170MU and 298K.

170CS  Costs

             (1)  Subject to this section, a party to a proceeding under section 170CP must not be ordered to pay costs incurred by any other party to the proceeding unless the court hearing the matter is satisfied that the first-mentioned party:

                     (a)  instituted the proceeding vexatiously or without reasonable cause; or

                     (b)  caused the costs to be incurred by that other party because of an unreasonable act or omission of the first-mentioned party in connection with the conduct of the proceeding.

             (2)  Subsection (1) does not empower a court to award costs in circumstances specified in that subsection if the court does not have the power to do so.

             (3)  In this section:

costs includes all legal and professional costs and disbursements and expenses of witnesses.

170CT  Small claims procedure

                   Section 179C applies to a proceeding under section 170CP in respect of an alleged contravention of section 170CM that is started by a person or a trade union in a magistrate’s court in the same way as section 179C applies to an action under section 179 that is started in a magistrate’s court.

Subdivision D—Commission orders giving effect to Articles 12 and 13 of Convention

170FA  Employment termination orders creating rules of general application

             (1)  Subject to this Part, the Commission may, at any time on or after 26 February 1994, make an order for the purpose of giving effect to the requirements of Article 12 (in so far as it relates to a severance allowance or other separation benefits) or 13 of the Termination of Employment Convention in relation to the termination of employment of employees.

             (2)  In so far as an order is made for the purposes of Article 13 of that Convention, the Commission must limit the order’s application to cases where an employer decides to terminate the employment of a number of employees that is not less than a number (not less than 15) that is specified in the order.

170FB  Orders only on application

The Commission must not make an order under section 170FA unless it has received an application for the making of the order from an employee, or a trade union whose rules entitle it to represent the industrial interests of employees, to be covered by the order.

170FC  No order if alternative exists

The Commission must refrain from considering the application, or from determining it, if the Commission is satisfied that there is an alternative mechanism by which effect will be given to the requirements of the Articles referred to in section 170FA in relation to the employees concerned.

170FD  Powers and procedures of Commission for dealing with applications

Division 2 of Part VI (other than section 107) and section 111 (other than paragraph 111(1)(g)) have the same operation in relation to an application for an order under section 170FA as they would have if the application were the notification of an industrial dispute.

170FE  Commission’s powers not limited by Subdivision E

Nothing in Subdivision E limits the Commission’s powers under this Subdivision.

Subdivision E—Commission orders after employer fails to consult trade union about terminations

170GA  Orders by Commission where employer fails to consult trade union about terminations

             (1)  Subsection (2) applies if the Commission is satisfied that an employer has, on or after 26 February 1994, decided to terminate the employment of 15 or more employees for reasons of an economic, technological, structural or similar nature, or for reasons including such reasons, and that:

                     (a)  the employer did not, as soon as practicable after so deciding and in any event before terminating an employee’s employment pursuant to the decision, inform each trade union of which any of the employees was a member, and which represented the industrial interests of such of those employees as were members, about:

                              (i)  the terminations and the reasons for them; and

                             (ii)  the number and categories of employees likely to be affected; and

                            (iii)  the time when, or the period over which, the employer intended to carry out the terminations; or

                     (b)  the employer did not, as soon as practicable after so deciding and in any event before terminating an employee’s employment pursuant to the decision, give each such trade union an opportunity to consult with the employer on:

                              (i)  measures to avert the termination, or avert or minimise the terminations; and

                             (ii)  measures (such as finding alternative employment) to mitigate the adverse effects of the termination or terminations.

             (2)  The Commission may make whatever orders it thinks appropriate, in the public interest, in order to put the employees whose employment was terminated pursuant to the decision, and each such trade union, in the same position (as nearly as can be done) as if:

                     (a)  if paragraph (1)(a) applies—the employer had so informed the trade union; and

                     (b)  if paragraph (1)(b) applies—the employer had so given the trade union such an opportunity.

             (3)  Subsections (1) and (2) do not apply in relation to a trade union if the employer could not reasonably be expected to have known at the time of the decision that one or more of the employees were members of the trade union.

170GB  Orders only on application

The Commission must not make an order under section 170GA unless it has received an application for the making of the order from:

                     (a)  an employee or trade union whose position is to be affected by the order as mentioned in subsection 170GA(2); or

                     (b)  a trade union whose rules entitle it to represent the industrial interests of such employees.

170GC  No order if alternative remedy exists

The Commission must refrain from considering an application, or from determining it, if the Commission is satisfied that there is available to the applicant, or to the employees whom the applicant represents, an alternative remedy under machinery:

                     (a)  that exists under a law of the Commonwealth (other than this Division) or under a law of a State or Territory; and

                     (b)  by which effect will be given to the requirements of Article 13 of the Termination of Employment Convention in relation to the employees and trade unions concerned.

170GD  Powers and procedures of Commission for dealing with applications

Division 2 of Part VI (other than section 107) and section 111 (other than paragraph 111(1)(g)) have the same operation in relation to an application for an order under section 170GA as they would have if the application were the notification of an industrial dispute.

Subdivision F—Other rights relating to termination of employment

170HA  Division not to limit other rights

                   Subject only to the operation of sections 170HB and 170HC, the provisions of this Division are not intended to limit any rights that a person or trade union may have to appeal against termination of employment or to secure the making of awards or orders relating to termination of employment.

170HB  Applications alleging harsh, unjust or unreasonable termination

             (1)  An application must not be made under section 170CE in relation to the termination of employment of an employee on the ground that the termination was harsh, unjust or unreasonable, or on grounds that include that ground, if proceedings (the prior proceedings) for a remedy in respect of that termination have been commenced by or on behalf of that employee:

                     (a)  under another provision of this Act; or

                     (b)  under another law of the Commonwealth; or

                     (c)  under a law of a State or Territory;

alleging that the termination was:

                     (d)  harsh, unjust or unreasonable (however described); or

                     (e)  unlawful;

for a reason other than a failure by the employer to provide a benefit to which the employee was entitled on the termination.

             (2)  Subsection (1) does not prevent an application of the kind referred to in that subsection if the prior proceedings:

                     (a)  have been discontinued by the party who began the proceedings; or

                     (b)  have failed for want of jurisdiction.

             (3)  For the avoidance of doubt, a proceeding under this Act or any other law of the Commonwealth or under a law of a State or Territory seeking compensation, or the imposition of a penalty, because an employer has failed, in relation to a termination of employment, to meet an obligation:

                     (a)  to give adequate notice of the termination; or

                     (b)  to provide a severance payment as a result of the termination; or

                     (c)  to provide any other entitlement payable as a result of the termination;

is taken to be a proceeding alleging that the termination was unlawful because of a failure to provide a benefit to which the employee was entitled on the termination.

             (4)  If an application of the kind referred to in subsection (1) has been made in respect of a termination, a person is not entitled to take proceedings for any other remedy that, if it had been applied for before the application would, because of the operation of subsection (1), have prevented the application unless the application:

                     (a)  is discontinued by the applicant; or

                     (b)  fails for want of jurisdiction.

170HC  Applications alleging contravention of section 170CK

             (1)  An application must not be made under section 170CE on the ground that the termination of an employee’s employment constitutes an alleged contravention of section 170CK because it was done for a reason set out in subsection 170CK(2) if proceedings (the prior proceedings) for a remedy in respect of that termination have been commenced by or on behalf of that employee:

                     (a)  under another provision of this Act; or

                     (b)  under another law of the Commonwealth; or

                     (c)  under a law of a State or Territory;

alleging that the termination was unlawful because it was done for such a reason.

             (2)  Subsection (1) does not prevent an application of the kind referred to in that subsection if the prior proceedings:

                     (a)  have been discontinued by the party who began the proceedings; or

                     (b)  have failed for want of jurisdiction.

             (3)  If an application of the kind referred to in subsection (1) has been made in respect of a termination, a person is not entitled to take proceedings for any other remedy that, if it had been applied for before that application would, because of the operation of subsection (1), have prevented that application unless the application:

                     (a)  is discontinued by the applicant; or

                     (b)  fails for want of jurisdiction.

Division 4—Orders and proceedings

170JA  Orders to be in writing

An order of the Commission under this Part must be in writing.

170JB  When orders take effect

An order of the Commission under this Part takes effect from the date of the order or a later date specified in the order.

170JC  Compliance with orders

             (1)  Part VIII has the same effect in relation to orders under this Part as it does in relation to awards.

             (2)  For the purpose of applying Part VIII in that way, an order under this Part is, unless the order provides otherwise, taken to bind all employers and employees of the kind covered by the order (whether or not named or described in the order).

             (3)  In addition to any other right that an employee covered by an order under this Part may have under Part VIII (as it applies in accordance with this section):

                     (a)  the employee may apply to the Court to enforce the order by injunction or otherwise as the Court thinks fit; and

                     (b)  if the order is an order under Subdivision B of Division 3—the employee may apply to a court of competent jurisdiction as defined in section 177A to enforce the order by injunction.

170JD  Variation and revocation of orders

             (1)  The Commission may vary or revoke an order under this Part on application by:

                     (a)  any employer, or representative of an employer, covered by the order (whether or not named or described in the order); or

                     (b)  any employee, or representative of any employee, to whom the order relates (whether or not named or described in the order).

             (2)  If the Commission is satisfied, on an application under this section, that an order under Division 2 should be varied or revoked because of a change in circumstances, the Commission must vary or revoke the order accordingly.

             (3)  Subsection (2) does not limit the Commission’s powers under subsection (1).

170JE  Application of sections 109, 110, 111, 128 and 129 to orders and proceedings under this Part

             (1)  Section 109 applies to an order under this Part as if it were an order in relation to an industrial dispute.

             (2)  A reference in section 110, subsection 111(2) or section 128 or 129 to a proceeding before the Commission includes a reference to a proceeding under this Part. This subsection is to avoid doubt and does not limit the generality of those provisions.

             (3)  Paragraph 111(1)(g) does not apply to a proceeding under this Part, despite subsection 111(2) and subsection (2) of this section.

170JEA  Representation of employers

Without limiting the operation of paragraphs 42(7)(b) and 469(7)(b), an employer that is a party to a proceeding under this Part before the Commission or the Court may be represented by a member, officer or employee of an association of employers of which the employer is a member.

170JF  Appeals to Full Bench

             (1)  An appeal to a Full Bench under section 45 may be instituted by any person who is entitled under section 170JD to apply for the variation or revocation of an order under this Part.

             (2)  For the avoidance of doubt, an appeal to a Full Bench under section 45 in relation to an order made by the Commission under Subdivision B of Division 3 may be made only on the grounds that the Commission was in error in deciding to make the order.

170JG  Inconsistency with awards or other orders of Commission

Any award or order of the Commission, or certified agreement or AWA, that is inconsistent with an order under this Part does not have effect to the extent of the inconsistency.

170JH  Validity of State laws, awards etc.

Sections 152 and 153 have the same effect in relation to orders of the Commission under this Part as they have in relation to awards of the Commission.

Division 5—Parental leave

170KA  Effect of Division

             (1)  The object of this Division and Schedule 14 is to give effect, or further effect, to:

                     (a)  the Family Responsibilities Convention; and

                     (b)  the Workers with Family Responsibilities Recommendation, 1981, which the General Conference of the International Labour Organisation adopted on 23 June 1981 and is also known as Recommendation No. 165;

by providing for a system of unpaid parental leave, and a system of unpaid adoption leave, that will help men and women workers who have responsibilities in relation to their dependent children:

                     (c)  to prepare for, enter, participate in or advance in economic activity; and

                     (d)  to reconcile their employment and family responsibilities.

             (2)  In particular, Schedule 14 gives effect, or further effect, to the Convention and the Recommendation by enabling either parent of a dependent child to obtain leave of absence (parental leave), without relinquishing employment, and with rights resulting from employment being safeguarded. Schedule 14 refers to parental leave granted to the child’s mother and her spouse as maternity leave and paternity leave, respectively.

             (3)  The child’s mother is entitled to maternity leave, and her spouse is entitled to paternity leave, totalling up to 52 weeks following the birth of the child. Except for a period of one week at the time of the birth, maternity leave and paternity leave cannot overlap, since their main purpose is to enable the parent who is on leave to be the child’s primary care-giver. The purpose of the one-week overlapping period of leave is to enable both parents to care for the child, and to enable the mother’s spouse to give care and support to the mother, during the period immediately following the birth.

             (4)  Schedule 14 establishes minimum entitlements and so is intended to supplement, and not to override, entitlements under other Commonwealth, State and Territory legislation and awards.

             (5)  The regulations will provide for an analogous system of unpaid adoption leave.

170KB  Application of Schedule 14

The provisions of Schedule 14 have the force of law, in the same way as if they were set out in this Division.

170KC  Regulations may prescribe adoption leave

The regulations may provide for or in relation to giving effect to the Family Responsibilities Convention, and the Recommendation referred to in paragraph 170KA(1)(b), by providing for the granting by employers to employees of unpaid adoption leave.

Part VIB—Certified agreements

Division 1—Preliminary

170L  Object

                   The object of this Part is to facilitate the making, and certifying by the Commission, of certain agreements, particularly at the level of a single business or part of a single business.

170LA  Functions of Commission

             (1)  The Commission must, as far as practicable, perform its functions under this Part in a way that furthers the objects of this Act and, in particular, the object of this Part.

             (2)  Section 90 (Commission to take into account the public interest) does not apply to the performance of functions of the Commission under this Part.

             (3)  In performing its functions under this Part, the Commission may not act under paragraph 111(1)(g) on the grounds specified in subparagraph (i), (ii) or (iii) of that paragraph.

 

170LB  Single business and single employer

             (1)  For the purposes of this Part, a single business is:

                     (a)  a business, project or undertaking that is carried on by an employer; or

                     (b)  the activities carried on by:

                              (i)  the Commonwealth, a State or a Territory; or

                             (ii)  a body, association, office or other entity established for a public purpose by or under a law of the Commonwealth, a State or a Territory; or

                            (iii)  any other body in which the Commonwealth, a State or a Territory has a controlling interest.

             (2)  For the purposes of this Part:

                     (a)  if 2 or more employers carry on a business, project or undertaking as a joint venture or common enterprise, the employers are taken to be one employer; and

                     (b)  if 2 or more corporations that are related to each other for the purposes of the Corporations Law each carry on a single business:

                              (i)  the corporations may be treated as one employer; and

                             (ii)  the single businesses may be treated as one single business.

             (3)  For the purposes of this Part, a part of a single business includes, for example:

                     (a)  a geographically distinct part of the single business; or

                     (b)  a distinct operational or organisational unit within the single business.

170LC  Additional operation of Part

             (1)  In addition to its operation apart from this section to a single business, or part of a single business, of an employer, this Part applies, subject to this section, in the same way to any of the following, or any combination or combinations of the following:

                     (a)  one or more single businesses;

                     (b)  one or more parts of single businesses;

carried on by one or more employers.

             (2)  If an application for certification of an agreement by the Commission can only be made under this Part because of subsection (1), the agreement is a multiple-business agreement.

             (3)  Only a Full Bench may certify a multiple-business agreement under Division 4.

             (4)  A Full Bench, under that Division, must not certify a multiple‑business agreement unless it is satisfied that it is in the public interest to certify the agreement, having regard to:

                     (a)  whether the matters dealt with by the agreement could be more appropriately dealt with by an agreement, other than a multiple‑business agreement, under this Part; and

                     (b)  any other matter that the Full Bench considers relevant.

             (5)  In spite of section 170LY (which deals with the effect of a certified agreement in relation to awards and other certified agreements), a multiple-business agreement has no effect in so far as it is inconsistent with any other agreement that is certified under Division 4 that is not a multiple-business agreement.

Note 1:       Section 170LY would nevertheless apply to inconsistencies with awards or orders of the Commission or with other multiple-business agreements.

Note 2:       Part VID deals with the relationship between AWAs and all certified agreements.

             (6)  Division 8 (other than sections 170NA and 170NB) does not apply in relation to a proposed multiple-business agreement.

170LD  Nominal expiry date

                   For the purposes of this Part, the nominal expiry date of a certified agreement is the date specified in the agreement as its nominal expiry date, or that date as extended or further extended under section 170MC.

170LE  Valid majority

                   For the purposes of this Part, a valid majority of persons employed at a particular time whose employment is or will be subject to an agreement:

                     (a)  make or genuinely make the agreement; or

                     (b)  approve or genuinely approve:

                              (i)  the agreement; or

                             (ii)  the extension of the nominal expiry date of the agreement; or

                            (iii)  the variation or termination of the agreement;

if:

                     (c)  the employer gives all of the persons so employed a reasonable opportunity to decide whether they want to make the agreement or give the approval; and

                     (d)  either:

                              (i)  if subparagraph (ii) does not apply—a majority of the persons; or

                             (ii)  if the decision is made by a vote—a majority of the persons who cast a valid vote;

                            decide, or genuinely decide, that they want to make the agreement or give the approval.

170LF  Working day

                   For the purposes of this Part, a working day, in relation to a single business or a part of a single business, is a day on which employees normally perform work in that business or part.

170LG  Paid rates award

                   A paid rates award is an award or a State award that:

                     (a)  includes a statement to the effect that it is a paid rates award; or

                     (b)  has been regarded by the Commission, or a State industrial authority, as the case may be, as a paid rates award when applying principles for the purposes of determining wages and conditions of employment.

Division 2—Making agreements with constitutional corporations or the Commonwealth

170LH  What this Division covers

                   This Division sets out requirements that must be satisfied for applications to be made to the Commission to certify certain agreements between employers who are constitutional corporations or the Commonwealth and:

                     (a)  organisations of employees; or

                     (b)  employees.

170LI  Nature of agreement

             (1)  For an application to be made to the Commission under this Division, there must be an agreement, in writing, about matters pertaining to the relationship between:

                     (a)  an employer who is a constitutional corporation or the Commonwealth; and

                     (b)  all persons who, at any time when the agreement is in operation, are employed in a single business, or a part of a single business, of the employer and whose employment is subject to the agreement.

Note:          Section 5AA also allows agreements to be made on a different constitutional basis about matters pertaining to the relationship between an employer and employees.

             (2)  The agreement must be made in accordance with section 170LJ, 170LK or 170LL.

170LJ  Agreement with organisations of employees

             (1)  The employer may make the agreement with one or more organisations of employees where, when the agreement is made, each organisation:

                     (a)  has at least one member employed in the single business or part whose employment will be subject to the agreement; and

                     (b)  is entitled to represent the industrial interests of the member in relation to work that will be subject to the agreement.

             (2)  The agreement must be approved by a valid majority of the persons employed at the time whose employment will be subject to the agreement.

             (3)  The employer must take reasonable steps to ensure that:

                     (a)  at least 14 days before any approval is given, all the persons either have, or have ready access to, the agreement, in writing; and

                     (b)  before any approval is given, the terms of the agreement are explained to all the persons.

             (4)  An agreement must not be made under this section if it is able to be made under section 170LL (which deals with greenfields agreements).

170LK  Agreement with employees

             (1)  The employer may make the agreement with a valid majority of the persons employed at the time whose employment will be subject to the agreement.

             (2)  The employer must take reasonable steps to ensure that every person employed at the time whose employment will be subject to the agreement has at least 14 days’ notice, in writing, of intention to make the agreement, and the agreement must not be made before those 14 days have passed.

             (3)  At or before the time when the notice is given, the employer must take reasonable steps to ensure that every such person either has, or has ready access to, the proposed agreement, in writing.

             (4)  The notice must also state that if:

                     (a)  any person whose employment will be subject to the agreement is a member of an organisation of employees; and

                     (b)  the organisation is entitled to represent the person’s industrial interests in relation to work that will be subject to the agreement;

the person may request the organisation to represent the person in meeting and conferring with the employer about the agreement.

             (5)  If an organisation is so requested to represent such a person, the employer must give the organisation a reasonable opportunity to meet and confer with the employer about the agreement before it is made.

             (6)  If at any time after the request is made:

                     (a)  the person withdraws the request; or

                     (b)  the conditions in paragraphs (4)(a) and (b) cease to be met;

the requirement in subsection (5) ceases to apply to the employer.

             (7)  Before the agreement is made, the employer must take reasonable steps to ensure that the terms of the agreement are explained to all the persons employed at the time whose employment will be subject to the agreement.

             (8)  If a proposed agreement is varied for any reason after the notice is given, the steps in subsections (2), (3), (5) and (7) must again be taken in relation to the proposed agreement as varied.

170LL  Greenfields agreement

             (1)  If:

                     (a)  the single business is a new business that the employer proposes to establish, or is establishing, when the agreement is to be made; and

                     (b)  the agreement is to be made before the employment of any of the persons who will be necessary for the normal operation of the business or part and whose employment will be subject to the agreement;

then the employer may make the agreement with one or more organisations of employees meeting the requirements of subsection (2).

             (2)  When the agreement is made, each organisation must be entitled to represent the industrial interests of one or more of the persons, whose employment is likely to be subject to the agreement, in relation to work that will be subject to the agreement.

170LM  Making the application for certification

             (1)  The application for the Commission to certify the agreement must state that it is made under this Division.

             (2)  The application must be made no later than 21 days after:

                     (a)  if it is made in accordance with section 170LJ—the day on which it is approved as mentioned in subsection 170LJ(2); or

                     (b)  if it is made in accordance with section 170LK or 170LL—the day on which it is made.

Division 3—Making agreements about industrial disputes and industrial situations

170LN  What this Division covers

                   This Division sets out requirements that must be satisfied for an application to be made to the Commission to certify certain agreements:

                     (a)  to settle, further settle or maintain the settlement of, or to prevent, industrial disputes; or

                     (b)  to prevent industrial situations from giving rise to industrial disputes.

170LO  Agreement about industrial dispute

                   If an employer who is carrying on a single business is or was a party to an industrial dispute, the employer may agree with one or more organisations of employees with whom the employer is or was in dispute on terms for:

                     (a)  settling or further settling all or any of the matters that are in dispute; or

                     (b)  maintaining a settlement of all or any of the matters that were in dispute, whether the settlement was made by an award, a certified agreement or otherwise; or

                     (c)  preventing further industrial disputes between them.

170LP  Agreement about industrial situation

                   If the parties to an industrial situation are, or include, an employer carrying on a single business and one or more organisations of employees, the employer and any of the organisations may agree on terms for preventing the situation from giving rise to an industrial dispute involving them.

170LQ  Multiple disputes and situations

                   A single agreement may deal with 2 or more disputes or situations.

170LR  Approval by valid majority of employees

             (1)  The agreement must be approved by a valid majority of the persons employed at the time whose employment will be subject to the agreement.

             (2)  The employer must take reasonable steps to ensure that:

                     (a)  at least 14 days before any approval is given, all the persons either have, or have ready access to, the agreement, in writing; and

                     (b)  before any approval is given, the terms of the agreement are explained to all the persons.

170LS  Making the application for certification

             (1)  The application to the Commission to certify the agreement must state that it is made under this Division.

             (2)  The application must be made no later than 21 days after the day on which it is approved as mentioned in subsection 170LR(1).

Division 4—Certifying agreements

170LT  Certifying an agreement

             (1)  If an application is made to the Commission in accordance with Division 2 or 3 to certify an agreement, the Commission must certify the agreement if, and must not certify the agreement unless, it is satisfied that the requirements of this section are met.

             (2)  The agreement must pass the no‑disadvantage test (see Part VIE).

             (3)  If:

                     (a)  the only reason why the Commission must not certify an agreement is that the agreement does not pass the no‑disadvantage test; and

 

                     (b)  the Commission is satisfied that certifying the agreement is not contrary to the public interest;

the agreement is taken to pass the no‑disadvantage test.

             (4)  An example of a case where the Commission may be satisfied that certifying the agreement is not contrary to the public interest is where making the agreement is part of a reasonable strategy to deal with a short‑term crisis in, and to assist in the revival of, the single business or part.

             (5)  If the agreement was made in accordance with section 170LJ or Division 3, a valid majority of persons employed at the time whose employment would be subject to the agreement must have genuinely approved the agreement.

             (6)  If the agreement was made in accordance with section 170LK, a valid majority of persons employed at the time whose employment would be subject to the agreement must have genuinely made the agreement.

             (7)  The explanation of the terms of the agreement to persons as mentioned in paragraph 170LJ(3)(b), subsection 170LK(7) or paragraph 170LR(2)(b) must have taken place in ways that were appropriate, having regard to the persons’ particular circumstances and needs. An example of such a case would be where the persons included:

                     (a)  women; or

                     (b)  persons from a non‑English speaking background; or

                     (c)  young persons.

             (8)  The agreement must include procedures for preventing and settling disputes between:

                     (a)  the employer; and

                     (b)  the employees whose employment will be subject to the agreement;

about matters arising under the agreement.

             (9)  If the agreement was made in accordance with section 170LK, the employer must not have coerced, or attempted to coerce, any employee:

                     (a)  not to make a request as mentioned in subsection 170LK(4); or

                     (b)  to withdraw such a request.

           (10)  The agreement must specify a date as the nominal expiry date of the agreement, and that date cannot be more than 3 years after the date on which the agreement will come into operation.

170LU  When Commission to refuse to certify an agreement

             (1)  Despite section 170LT, if the application for certification states that it is made under Division 3, the Commission must refuse to certify the agreement unless it is satisfied that the agreement will:

                     (a)  settle or further settle all or any of the matters that are the subject of the industrial dispute; or

                     (b)  maintain a settlement of all or any of the matters that were the subject of the industrial dispute, whether the settlement was made by an award, a certified agreement or otherwise; or

                     (c)  prevent further industrial disputes between the persons concerned; or

                     (d)  prevent the industrial situation from giving rise to an industrial dispute involving the persons concerned; or

                     (e)  assist in doing any of the things mentioned in paragraphs (a) to (d).

             (2)  Despite section 170LT, the Commission must refuse to certify an agreement if the Commission thinks that a provision of the agreement is inconsistent with:

                     (a)  a provision of Division 3 of Part VIA; or

                     (b)  an order by the Commission under that Division; or

                     (c)  an injunction granted, or any other order made, by the Court under that Division.

             (3)  Despite section 170LT, the Commission must refuse to certify an agreement if it is satisfied that:

                     (a)  the employer has, in connection with negotiating the agreement, contravened section 170NB or Part XA (which deals with freedom of association); or

                     (b)  the employer has caused a person or body to engage, in connection with negotiations for an agreement, in conduct that, had the employer engaged in the conduct, would be a contravention by the employer of section 170NB or Part XA; or

                     (c)  a person or body has, on behalf of the employer:

                              (i)  so engaged in such conduct; or

                             (ii)  caused another person or body so to engage in such conduct.

             (4)  Subsection (3) does not apply if the Commission is satisfied that the contravention or conduct, and its effects, have been fully remedied.

             (5)  Despite section 170LT, the Commission must refuse to certify an agreement if it thinks that a provision of the agreement discriminates against an employee, whose employment will be subject to the agreement, because of, or for reasons including, race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

             (6)  For the purposes of subsection (5), a provision of an agreement does not discriminate against an employee merely because:

                     (a)  it provides for a junior rate of pay; or

                     (b)  it discriminates, in respect of particular employment, on the basis of the inherent requirements of that employment; or

                     (c)  it discriminates, in respect of employment as a member of the staff of an institution that is conducted in accordance with the teachings or beliefs of a particular religion or creed:

                              (i)  on the basis of those teachings or beliefs; and

                             (ii)  in good faith.

             (7)  Paragraph (6)(a) does not apply for the purposes of any application of subsection (5) by the Commission more than 3 years after 22 June 1997, except where the Commission decides, on a case‑by‑case basis, that the paragraph should apply. Decisions by the Commission as to whether the paragraph should apply must be made by the Commission in accordance with principles established by a Full Bench.

             (8)  Despite section 170LT, the Commission must refuse to certify an agreement if:

                     (a)  the agreement applies only to a part of a single business that is neither of the following:

                              (i)  a geographically distinct part of the single business; or

                             (ii)  a distinct operational or organisational unit within the single business; and

                     (b)  the Commission considers that the agreement defines that part in a way that results in the employment of employees not being subject to the agreement where it would be reasonable for the employment to be, having regard to:

                              (i)  the nature of the work performed by the employees whose employment is not subject to the agreement; and

                             (ii)  the organisational and operational relationships between that part and the rest of the single business; and

                     (c)  the Commission considers it unfair that the employment of those employees is not subject to the agreement.

170LV  Other options open to Commission instead of refusing to certify an agreement

             (1)  If, under section 170LT or 170LU, the Commission has grounds to refuse to certify an agreement:

                     (a)  the Commission may accept an undertaking from one or more of the persons who made the agreement in relation to the operation of the agreement and, if satisfied that the undertaking meets the Commission’s concerns, certify the agreement; and

                     (b)  in any case, before refusing to certify the agreement, the Commission must give the persons who made the agreement an opportunity to take any action that may be necessary to make the agreement certifiable.

             (2)  If an undertaking is not complied with, the Commission, after giving the persons who made the agreement an opportunity to be heard, may:

                     (a)  order the one or more persons who gave the undertaking to comply with it; or

                     (b)  by order, terminate the agreement.

             (3)  If:

                     (a)  after doing the things required or permitted by subsection (1), the Commission is still required to refuse to certify the agreement; and

                     (b)  it is so required only because it is not satisfied as mentioned in subsection 170LU(1);

the Commission may conciliate the industrial dispute or industrial situation concerned with a view to assisting the persons concerned to make the agreement certifiable.

170LW  Procedures for preventing and settling disputes

                   Procedures in a certified agreement for preventing and settling disputes between the employer and employees whose employment will be subject to the agreement may, if the Commission so approves, empower the Commission to do either or both of the following:

                     (a)  to settle disputes over the application of the agreement;

                     (b)  to appoint a board of reference as described in section 131 for the purpose of settling such disputes.

Division 5—Effect of certified agreements

170LX  When a certified agreement is in operation

             (1)  A certified agreement comes into operation when it is certified and, subject to this section, remains in operation at all times afterwards.

             (2)  The agreement ceases to be in operation if:

                     (a)  its nominal expiry date has passed; and

                     (b)  it is replaced by another certified agreement.

             (3)  The agreement:

                     (a)  ceases to be in operation if it is terminated under section 170LV, 170ME, 170MG, 170MH or 170MHA; and

                     (b)  does not operate if subsection 170LY(2) applies.

The agreement may also be set aside under subsection 113(2A).

Note:          Sections 170LV and 170ME deal with breaches of undertakings. Sections 170MG, 170MH and 170MHA deal with voluntary termination. Subsection 113(2A) deals with discriminatory agreements.

             (4)  If:

                     (a)  the application for certification of an agreement states that the application is made under Division 2; and

                     (b)  at any time when the agreement is in operation, the employer who made the agreement, or any employer who is bound by the agreement under section 170MB (which deals with successor employers), is a constitutional corporation; and

                     (c)  at any later time while bound by the agreement, any such employer ceases to be a constitutional corporation;

the agreement ceases to apply to the single business or part carried on by that employer.

170LY  Effect of a certified agreement in relation to awards and other certified agreements

             (1)  While a certified agreement is in operation:

                     (a)  subject to this section, it prevails over an award or order of the Commission, to the extent of any inconsistency with the award or order; and

                     (b)  it has no effect to the extent of any inconsistency with another agreement certified before it, whose nominal expiry date has not passed.

             (2)  If:

                     (a)  an award is made under subsection 170MX(3) (which deals with the exercise of arbitration powers on termination of a bargaining period); and

                     (b)  before the award is made, or after it is made but before its nominal expiry date passes, a certified agreement is certified; and

                     (c)  the employment of at least one employee is subject to both the award and the certified agreement;

the certified agreement does not operate at any time while the award operates.

             (3)  An exceptional matters order prevails, to the extent of any inconsistency, over a certified agreement that was certified before the order was made.

 

Note:          Part VID deals with the relationship between AWAs and certified agreements.

170LZ  Effect of a certified agreement on Commonwealth laws or State laws, awards or agreements

             (1)  Subject to this section, a certified agreement prevails over terms and conditions of employment specified in a State law, State award or State employment agreement, to the extent of any inconsistency.

             (2)  Provisions in a certified agreement that deal with the following matters operate subject to the provisions of a State law that deals with the matter:

                     (a)  occupational health and safety;

                     (b)  workers’ compensation;

                     (c)  apprenticeship;

                     (d)  any other matter prescribed by the regulations.

             (3)  If a State law, State award or State employment agreement provides a remedy for the termination of an employee’s employment, subsection (1) is not intended to affect the provisions of the State law, State award or State employment agreement that relate to termination of employment, so far as those provisions are able to operate concurrently with the certified agreement.

             (4)  To the extent of any inconsistency, a certified agreement displaces prescribed conditions of employment specified in a Commonwealth law that is prescribed by the regulations.

             (5)  In this section:

                   Commonwealth law means an Act or any regulations or other instrument made under an Act.

                   prescribed conditions means conditions that are identified by the regulations.

State law means a law of a State or Territory (including any regulations or other instrument made under a law of a State or Territory), but does not include a State award or a State employment agreement.

Division 6—Persons bound by certified agreements

170M  Persons bound in Division 2 cases

             (1)  If the application for certification states that the application is made under Division 2, the certified agreement binds:

                     (a)  the employer; and

                     (b)  all persons whose employment is, at any time when the agreement is in operation, subject to the agreement.

             (2)  If, in accordance with section 170LJ or 170LL, one or more organisations of employees made the agreement with the employer, the agreement also binds the one or more organisations.

             (3)  If:

                     (a)  the application for certification states that the application is made under Division 2; and

                     (b)  in accordance with section 170LK, a valid majority of persons made the agreement with the employer; and

                     (c)  before the agreement is certified, an organisation of employees notifies the Commission and the employer in writing that it wants to be bound by the agreement; and

                     (d)  the organisation satisfies the Commission that it has at least one member:

                              (i)  whose employment will be subject to the agreement; and

                             (ii)  whose industrial interests the organisation is entitled to represent in relation to work that will be subject to the agreement; and

                            (iii)  who requested the organisation to give the notification;

the Commission must, by order, determine that the agreement binds the organisation.

170MA  Persons bound in Division 3 cases

                   If the application for certification states that the application is made under Division 3, the certified agreement binds:

                     (a)  the employer and the one or more organisations of employees concerned; and

                     (b)  all members of the one or more organisations of employees concerned.

170MB  Successor employers bound

             (1)  If:

                     (a)  an employer is bound by a certified agreement; and

                     (b)  at a later time:

                              (i)  if the application for certification of the agreement stated that it was made under Division 2—a new employer that is a constitutional corporation or the Commonwealth; or

                             (ii)  if the application stated that it was made under Division 3—a new employer;

becomes the successor, transmittee or assignee (whether immediate or not) of the whole or a part of the business concerned, then, from the later time:

                     (c)  the new employer is bound by the certified agreement, to the extent that it relates to the whole or the part of the business; and

                     (d)  the previous employer ceases to be bound by the certified agreement, to the extent that it relates to the whole or the part of the business; and

                     (e)  a reference in this Part to the employer includes a reference to the new employer, and ceases to refer to the previous employer, to the extent that the context relates to the whole or the part of the business.

             (2)  Subsection (1) does not affect the rights and obligations of the previous employer that arose before the later time.

Division 7—Extending, varying or terminating certified agreements

170MC  Extending the nominal expiry date

             (1)  On or before the nominal expiry date of a certified agreement:

                     (a)  if paragraph (b) does not apply—the employer; or

                     (b)  if one or more organisations are bound by the agreement—the employer and the one or more organisations;

may, in writing, extend the nominal expiry date of the agreement. The extended date cannot be more than 3 years after the date on which the agreement came into operation.

             (2)  The extension has no effect unless the Commission approves it.

             (3)  The Commission must, by order, approve the extension if, and must not approve the extension unless, it is satisfied that a valid majority of the employees whose employment is subject to the agreement at the time genuinely approve the extension.

             (4)  The extension takes effect when the Commission’s order takes effect.

             (5)  This section does not apply to an agreement:

                     (a)  to which section 170LL (greenfields agreements) applied; or

                     (b)  to which subsection 170LT(3) applied, in circumstances covered by the example in subsection 170LT(4) (short‑term business crises).

170MD  Varying a certified agreement

             (1)  Either:

                     (a)  if paragraph (b) does not apply—the employer; or

                     (b)  if one or more organisations are bound by the agreement—the employer and the one or more organisations;

may, in writing, vary the agreement.

             (2)  The variation has no effect unless the Commission approves it.

             (3)  The Commission must, by order, approve the variation if, and must not approve the variation unless, it is satisfied that:

                     (a)  a valid majority of the employees whose employment is subject to the agreement at the time genuinely approve the variation; and

                     (b)  the Commission would be required to certify the agreement as varied if it were a new agreement whose certification was applied for under this Part.

             (4)  In applying paragraph (3)(b):

                     (a)  any requirement about a majority of persons making or approving the agreement is taken to be satisfied; and

                     (b)  section 170LV (which deals with undertakings in the context of certifying an agreement) is to be disregarded.

Note:          Section 170ME instead deals with undertakings in relation to the variation.

             (5)  The variation takes effect when the Commission’s order takes effect.

             (6)  The Commission may, on application by any person bound by a certified agreement, by order vary a certified agreement:

                     (a)  for the purpose of removing ambiguity or uncertainty; or

                     (b)  for the purpose of including, omitting or varying a term (however expressed) that authorises an employer to stand‑down an employee.

             (7)  A certified agreement is not able to be varied except in accordance with:

                     (a)  this section (including as it applies in accordance with section 170MDA); or

                     (b)  subsection 113(2A) (which deals with discriminatory agreements); or

                     (c)  section 170MC (extending the nominal expiry date); or

                     (d)  section 170ME (which deals with undertakings).

Note:          Subsection (7) would not apply to an agreement in so far as the obligations under the agreement can change because of the terms of the agreement itself.

170MDA  Variation where discrimination between unionists and non‑unionists

                   If:

                     (a)  one or more employees whose employment is not subject to the agreement request the employer to:

                              (i)  vary the agreement so that the employment of the employees is subject to the agreement; and

                             (ii)  seek the approval of the Commission for the variation under section 170MD; and

                     (b)  the employment of the employees would be subject to the agreement if:

                              (i)  they were members of an organisation of employees or of a particular organisation of employees; or

                             (ii)  they were not members of an organisation of employees or of a particular organisation of employees; and

                     (c)  the variation would not cause the agreement to become a multiple‑business agreement;

the employer must comply with the request.

             (2)  If, in accordance with the request, the employer seeks the approval of the Commission to the variation under subsection 170MD(3), the Commission must disregard paragraph 170MD(3)(a) in deciding whether to approve the variation.

170ME  Other options open to Commission instead of refusing to approve variation of an agreement

             (1)  If, under section 170MD, the Commission has grounds to refuse to approve a variation of an agreement:

                     (a)  the Commission may accept an undertaking from one or more of the persons who varied the agreement in relation to the operation of the agreement as varied and, if satisfied that the undertaking meets the Commission’s concerns, approve the variation; and

                     (b)  in any case, before refusing to approve the variation, the Commission must give the persons who varied the agreement an opportunity to take any action that may be necessary to allow the variation to be approved.

             (2)  If an undertaking is not complied with, the Commission, after giving the persons who varied the agreement an opportunity to be heard, may:

                     (a)  order the one or more persons who gave the undertaking to comply with it; or

                     (b)  by order, vary the agreement so as to undo the effect of the approved variation; or

                     (c)  by order, terminate the agreement.

170MG  Terminating a certified agreement where valid majority approve at any time

             (1)  Either:

                     (a)  if paragraph (b) does not apply—the employer; or

                     (b)  if one or more organisations are bound by the agreement—the employer and the one or more organisations;

may, in writing, terminate the agreement.

             (2)  The termination has no effect unless the Commission approves it.

             (3)  The Commission must, by order, approve the termination of the agreement if, and must not approve the termination unless, it is satisfied that a valid majority of the employees whose employment is subject to the agreement at the time genuinely approve its termination.

             (4)  The termination takes effect when the Commission’s order takes effect.

170MH  Terminating a certified agreement in public interest after nominal expiry date

             (1)  After the nominal expiry date of a certified agreement:

                     (a)  the employer; or

                     (b)  a majority of the employees whose employment is subject to the agreement; or

                     (c)  an organisation of employees that is bound by the agreement and that has at least one member whose employment is subject to the agreement;

may apply to the Commission to have the agreement terminated.

             (2)  On receiving the application, the Commission must take such steps as it considers appropriate to obtain the views of persons bound by the agreement about whether it should be terminated.

             (3)  If, after complying with subsection (2), the Commission considers that it is not contrary to the public interest to terminate the agreement, the Commission must, by order, terminate the agreement.

             (4)  The termination takes effect when the Commission’s order takes effect.

170MHA  Terminating an agreement in a way provided under agreement after nominal expiry date

             (1)  If:

                     (a)  a certified agreement makes provision for it to be terminated if certain conditions are met; and

                     (b)  those conditions are met after the agreement’s nominal expiry date has passed;

any of the persons mentioned in subsection (2) may apply to the Commission to have the termination approved.

             (2)  The persons are:

                     (a)  the employer; or

                     (b)  an employee whose employment is subject to the agreement; or

                     (c)  an organisation of employees that is bound by the agreement and that has at least one member whose employment is subject to the agreement.

             (3)  If the Commission is satisfied that the requirements of paragraphs (1)(a) and (b) are complied with, it must, by order, approve the termination.

             (4)  If the Commission does so, the agreement terminates when the Commission’s order takes effect.

Division 8—Negotiations for certified agreements etc.

170MI  Initiation of bargaining period

             (1)  If:

                     (a)  an employer; or

                     (b)  an organisation of employees; or

                     (c)  an employee acting on his or her own behalf and on behalf of other employees;

wants to negotiate an agreement under Division 2 or 3 in relation to employees who are employed in a single business or a part of a single business, the employer, organisation or employee (the initiating party) may initiate a period (the bargaining period) for negotiating the proposed agreement.

Note:          This subsection has effect subject to subsections 170MW(10) and 170MZ(7).

             (2)  The bargaining period is initiated by the initiating party giving written notice to each other negotiating party (see subsection (3)) and to the Commission stating that the initiating party intends to try:

                     (a)  to make an agreement with the other negotiating parties under Division 2 or 3; and

                     (b)  to have any agreement so made certified under Division 4.

             (3)  In this Division, each of the following is a negotiating party to a proposed agreement:

                     (a)  the initiating party;

                     (b)  if the initiating party is an employer who intends to try to make an agreement under section 170LJ or 170LL or Division 3—the organisation or organisations who are proposed to be bound by the agreement;

                     (c)  if the initiating party is an employer who intends to try to make an agreement under section 170LK—the employees at the time whose employment will be subject to the agreement;

                     (d)  if the initiating party is an organisation of employees—the employer who is proposed to be bound by the agreement;

                     (e)  if the initiating party is an employee acting on his or her own behalf and on behalf of other employees—the employer who is proposed to be bound by the agreement and the employees whose employment will be subject to the agreement.

170MJ  Particulars to accompany notice

                   The notice is to be accompanied by particulars of:

                     (a)  the single business or part of the single business to be covered by the proposed agreement; and

                     (b)  the types of employees whose employment will be subject to the agreement and the other persons who will be bound by the agreement; and

                     (c)  the matters that the initiating party proposes should be dealt with by the agreement; and

                     (d)  the industrial dispute (if any) to which the proposed agreement relates; and

                     (e)  the proposed nominal expiry date of the agreement; and

                      (f)  any other matters prescribed by the regulations.

170MK  When bargaining period begins

                   The bargaining period begins at the end of 7 days after:

                     (a)  the day on which the notice was given; or

                     (b)  if the notice was given to different persons on different days—the later or latest of those days.

170ML  Protected action

             (1)  This section identifies certain action (protected action) to which the provisions in section 170MT (which confers certain legal immunity on protected action) are to apply.

             (2)  During the bargaining period:

                     (a)  an organisation of employees that is a negotiating party; or

                     (b)  a member of such an organisation who is employed by the employer; or

                     (c)  an officer or employee of such an organisation acting in that capacity; or

                     (d)  an employee who is a negotiating party;

is entitled, for the purpose of:

                     (e)  supporting or advancing claims made in respect of the proposed agreement; or

                      (f)  responding to a lockout by the employer of employees whose employment will be subject to the agreement;

to organise or engage in industrial action directly against the employer and, if the organisation, member, officer or employee does so, the organising of, or engaging in, that industrial action is protected action.

             (3)  Subject to subsection (6), during the bargaining period, the employer is entitled, for the purpose of:

                     (a)  supporting or advancing claims made by the employer in respect of the proposed agreement; or

                     (b)  responding to industrial action by any of the employees whose employment will be subject to the agreement;

to lock out from their employment all or any of the employees whose employment will be subject to the agreement and, if the employer does so, the lockout is protected action.

Note 1:       The existence of this entitlement does not affect any right of the employer to refuse to pay the employee where, under the common law, the employer is permitted to do so because the employee has not performed work as directed.

Note 2:       The existence of this entitlement also does not affect any authorisation of the employer to stand-down the employee as a result of a variation of an award under section 126, nor does it affect the Commission’s powers under that section to vary an award to give such an authorisation.

             (4)  The reference in subsection (3) to the employer locking out employees from their employment is a reference to the employer preventing employees from performing work under their contracts of employment without terminating those contracts.

             (5)  If the employer locks out employees from their employment in accordance with subsection (3), the employer is entitled to refuse to pay any remuneration to the employees in respect of the period of the lockout.

             (6)  The employer is not entitled to lock out employees from their employment under subsection (3) unless the continuity of the employees’ employment for such purposes as are prescribed by the regulations is not affected by the lockout.

             (7)  This section has effect subject to the following provisions of this Division.

170MM  Industrial action must not involve secondary boycott

             (1)  Engaging in industrial action is not protected action if:

                     (a)  it is engaged in in concert with one or more persons or organisations that are not protected persons; or

                     (b)  it is organised other than solely by one or more protected persons.

             (2)  Organising industrial action is not protected action if:

                     (a)  it is organised in concert with one or more persons or organisations that are not protected persons; or

                     (b)  it is intended to be engaged in other than solely by one or more protected persons.

             (3)  In this section:

protected person means:

                     (a)  an organisation of employees that is a negotiating party; or

                     (b)  a member of such an organisation who is employed by the employer; or

                     (c)  an officer or employee of such an organisation acting in that capacity; or

                     (d)  an employee who is a negotiating party.

170MN  Industrial action etc. must not be taken until after nominal expiry date of certain agreements and awards

             (1)  From the time when:

                     (a)  a certified agreement; or

                     (b)  an award under subsection 170MX(3) (which deals with the exercise of arbitration powers on termination of a bargaining period);

comes into operation until its nominal expiry date has passed, an employee, organisation or officer covered by subsection (2) must not, for the purpose of supporting or advancing claims against the employer in respect of the employment of employees whose employment is subject to the agreement or award, engage in industrial action.

 

             (2)  For the purposes of subsection (1), the following are covered by this subsection:

                     (a)  any employee whose employment is subject to the agreement or award;

                     (b)  an organisation of employees that is bound by the agreement or award;

                     (c)  an officer or employee of such an organisation acting in that capacity.

             (3)  If the employee, organisation or officer contravenes subsection (1), the action concerned is not protected action.

             (4)  From the time when:

                     (a)  a certified agreement; or

                     (b)  an award under subsection 170MX(3);

comes into operation until its nominal expiry date has passed, the employer must not, for the purpose of supporting or advancing claims in respect of the employment of employees whose employment is subject to the agreement or award, lock out such an employee from his or her employment.

             (5)  If the employer does so, the lockout is not protected action.

             (6)  Engaging in industrial action, or locking out an employee, in contravention of section 170VU is not protected action.

170MO  Notice of action to be given

             (1)  Any action taken as mentioned in subsection 170ML(2) by:

                     (a)  an organisation of employees; or

                     (b)  a member of such an organisation; or

                     (c)  an officer or employee of such an organisation acting in that capacity; or

                     (d)  an employee who is a negotiating party;

is not protected action unless the requirements set out in subsection (2) are met.

             (2)  The requirements are that:

                     (a)  if the action is in response to, and is taken after the start of, a lockout of employees by the employer in respect of the proposed agreement—the organisation, or the employee who is a negotiating party, has given the employer written notice of the intention to take the action; or

                     (b)  in any other case—the organisation, or the employee who is a negotiating party, has given the employer at least 3 working days’ written notice of the intention to take the action.

             (3)  If one or more of the negotiating parties is an organisation of employees, any action taken as mentioned in subsection 170ML(3) by the employer to lock out employees from their employment:

                     (a)  is not protected action unless the employer has given the other negotiating party or each of the other negotiating parties:

                              (i)  if the lockout is in response to, and takes place after the start of, industrial action organised or engaged in by an organisation that is a negotiating party in respect of the proposed agreement—written notice of the intended lockout; or

                             (ii)  in any other case—at least 3 working days’ written notice of the intended lockout; and

                     (b)  is not protected action in so far as it relates to a particular employee unless:

                              (i)  if subparagraph (a)(i) applies—before the lockout begins; or

                             (ii)  in any other case—at least 3 working days before the lockout begins;

                            the employer has given written notice to the particular employee, or has taken other reasonable steps to notify the particular employee, of the intended lockout.

             (4)  If one or more of the negotiating parties is an employee whose employment will be subject to the proposed agreement, any action taken as mentioned in subsection 170ML(3) by the employer to lock out employees from their employment is not protected action in so far as it relates to a particular employee unless:

                     (a)  if the lockout is in response to, and takes place after the start of, industrial action organised or engaged in by any of the employees who are negotiating parties in respect of the proposed agreement—before the lockout begins; or

                     (b)  in any other case—at least 3 working days before the lockout begins;

the employer has given written notice to the particular employee, or has taken other reasonable steps to notify the particular employee, of the intended lockout.

             (5)  A written notice or other notification under this section must state the nature of the intended action and the day when it will begin.

             (6)  A written notice or other notification under this section may be given before the start of the bargaining period.

170MP  Negotiation must precede industrial action or lockout

             (1)  Engaging in industrial action by a person who is a member of an organisation of employees that is a negotiating party is not protected action unless the organisation has, before the person begins to engage in the industrial action:

                     (a)  genuinely tried to reach agreement with the employer; and

                     (b)  if the Commission has made an order in relation to the negotiations—complied with the order in so far as it applies to the organisation.

             (2)  Engaging in industrial action by an employee (the first employee) who is a negotiating party is not protected action unless, before the first employee begins to engage in the industrial action:

                     (a)  the first employee, or another employee acting on behalf of the first employee, has genuinely tried to reach agreement with the employer; and

                     (b)  if the Commission has made an order in relation to the negotiations—the first employee has complied with the order in so far as it applies to the first employee.

             (3)  A lockout of employees by an employer is not protected action unless the employer has, before the employer begins the lockout:

                     (a)  if the employees are members of an organisation or organisations that are negotiating parties—genuinely tried to reach agreement with the organisation or organisations; and

                     (b)  if the employees are negotiating parties—genuinely tried to reach agreement with the employees; and

                     (c)  if the Commission has made an order in relation to the negotiations—complied with the order in so far as it applies to the employer.

170MQ  What happens if Commission orders a ballot

             (1)  If, under subsection 135(2), the Commission has ordered that a vote of members of an industrial organisation be taken by secret ballot in relation to the proposed agreement, the organising of, or engaging in, industrial action by:

                     (a)  the organisation; or

                     (b)  a member of the organisation; or

                     (c)  an officer or employee of the organisation acting in that capacity;

after the making of the order is not protected action unless:

                     (d)  such a ballot has been taken; and

                     (e)  the industrial action has been approved by a majority of the valid votes cast in the ballot.

             (2)  If, under subsection 135(2B), the Commission has ordered that a vote of employees be taken by secret ballot in respect of a proposed agreement, the organising of, or engaging in, industrial action by the employees after the making of the order is not protected action unless:

                     (a)  such a ballot has been taken; and

                     (b)  the industrial action has been approved by a majority of the valid votes cast in the ballot.

170MR  Industrial action must be duly authorised

             (1)  Engaging in industrial action by members of an organisation of employees that is a negotiating party is not protected action unless, before the industrial action begins:

                     (a)  the industrial action is duly authorised by a committee of management of the organisation or by someone authorised by such a committee to authorise the industrial action; and

                     (b)  if the rules of the organisation provide for the way in which the industrial action is to be authorised—the industrial action is duly authorised under those rules; and

                     (c)  written notice of the giving of the authorisation is given to a Registrar.

             (2)  Industrial action is taken, for the purposes of this section, to be duly authorised under the rules of an organisation of employees even though a technical breach has occurred in authorising the industrial action, so long as the person or persons who committed the breach acted in good faith.

             (3)  Examples of a technical breach in authorising industrial action are as follows:

                     (a)  a contravention of the rules of the organisation;

                     (b)  an error or omission in complying with the requirements of this Act;

                     (c)  participation, by a person not eligible to do so, in the making of a decision by a committee of management, or by members, of the organisation.

             (4)  Industrial action is taken, for the purposes of this section, to have been duly authorised under the rules of an organisation of employees, and to have been so authorised before the industrial action began, unless:

                     (a)  the Court declares in a proceeding that the industrial action was not duly authorised under those rules; and

                     (b)  the proceeding was brought in the Court within 6 months after the notification in relation to the industrial action was given to a Registrar under paragraph (1)(c).

             (5)  In so far as the rules of an organisation of employees provide for the way in which industrial action that section 170ML entitles the organisation to organise or engage in is to be authorised, the rules do not contravene section 196 unless the manner provided for contravenes that section.

170MS  What happens if application to certify agreement is not made within 21 days

                   Unless an application to the Commission to certify an agreement is made within 21 days after the day when the agreement is made, nothing that was done during the bargaining period by an employee whose employment is subject to the agreement or by a person bound by the agreement is protected action.

170MT  Immunity provisions

             (1)  An order made by the Commission under section 127 does not apply to protected action.

             (2)  Subject to subsection (3), no action lies under any law (whether written or unwritten) in force in a State or Territory in respect of any industrial action that is protected action unless the industrial action has involved or is likely to involve:

                     (a)  personal injury; or

                     (b)  wilful or reckless destruction of, or damage to, property; or

                     (c)  the unlawful taking, keeping or use of property.

             (3)  Subsection (2) does not prevent an action for defamation being brought in respect of anything that occurred in the course of industrial action.

170MU  Employer not to dismiss employee etc. for engaging in protected action

             (1)  An employer must not:

                     (a)  dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee’s prejudice; or

                     (b)  threaten to dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee’s prejudice;

wholly or partly because the employee is proposing to engage, is engaging, or has engaged, in protected action.

             (2)  Subsection (1) of this section does not apply to any of the following actions taken by the employer:

                     (a)  standing-down the employee;

                     (b)  refusing to pay the employee where, under the common law, the employer is permitted to do so because the employee has not performed work as directed;

                     (c)  action of the employer that is itself protected action.

             (3)  In proceedings under section 170NF for an alleged contravention of subsection (1) of this section, it is to be presumed, unless the employer proves otherwise, that the alleged conduct of the employer was carried out wholly or partly because the employee was proposing to engage, was engaging, or had engaged, in protected action.

170MV  When bargaining period ends

                   The bargaining period ends if any of the following events occurs:

                     (a)  an agreement under Division 2 or 3 is made by the employer and any one or more of the other negotiating parties; or

                     (b)  the initiating party tells the other negotiating party or each of the other negotiating parties in writing that the initiating party no longer wants to reach an agreement under Division 2 or 3 with that other party or those other parties; or

                     (c)  the Commission terminates the bargaining period.

170MW  Power of Commission to suspend or terminate bargaining period

             (1)  Subject to subsection (8), the Commission may, by order, suspend or terminate the bargaining period if, after giving the negotiating parties an opportunity to be heard, it is satisfied that any of the circumstances set out in subsections (2) to (7) exists or existed.

             (2)  A circumstance for the purposes of subsection (1) is that a negotiating party that, before or during the bargaining period, has organised or taken, or is organising or taking, industrial action to support or advance claims in respect of the proposed agreement:

                     (a)  did not genuinely try to reach an agreement with the other negotiating parties before organising or taking the industrial action; or

                     (b)  is not genuinely trying to reach an agreement with the other negotiating parties; or

                     (c)  has failed to comply with any directions by the Commission that relate to the proposed agreement or to a matter that arose during the negotiations for the proposed agreement; or

                     (d)  has failed to comply with a recommendation of the Commission under section 111AA that relates to the proposed agreement or to a matter that arose during the negotiations for the proposed agreement.

             (3)  A circumstance for the purposes of subsection (1) is that industrial action that is being taken to support or advance claims in respect of the proposed agreement is threatening:

                     (a)  to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or

                     (b)  to cause significant damage to the Australian economy or an important part of it.

             (4)  A circumstance for the purposes of subsection (1) is that industrial action is being organised or taken by:

                     (a)  an organisation that is a negotiating party; or

                     (b)  a member of such an organisation who is employed by the employer; or

                     (c)  an officer or employee of such an organisation acting in that capacity;

against an employer to support or advance claims in respect of employees:

                     (d)  whose employment will be subject to the agreement; and

                     (e)  who are neither members, nor eligible to become members, of the organisation.

             (5)  A circumstance for the purposes of subsection (1) is that industrial action that is being organised or taken by an organisation that is a negotiating party:

                     (a)  relates, to a significant extent, to a demarcation dispute; or

                     (b)  contravenes an order of the Commission that relates, to a significant extent, to a demarcation dispute.

             (6)  If the bargaining period relates to employees employed in a part of a single business, a circumstance for the purposes of subsection (1) is that the initiating party is not complying with an award or order, a direction of the Commission, or a certified agreement, in relation to another part of the single business.

             (7)  A circumstance for the purposes of subsection (1) is that:

                     (a)  immediately before the commencement of this section, the wages and conditions of the kind of employees whose employment will be subject to the agreement were determined by a paid rates award, or would have been so determined if a certified agreement, an enterprise flexibility agreement (within the meaning of this Act as then in force) or a State employment agreement had not prevailed over the award; and

                     (b)  so far as the wages and conditions of the kind of employees whose employment will be subject to the agreement were, before the commencement of this section, customarily determined by an award or a State award, they were determined by a paid rates award; and

                     (c)  there is no reasonable prospect of the negotiating parties reaching an agreement under Division 2 or 3 during the bargaining period.

             (8)  The Commission:

                     (a)  may not make an order under subsection (1), in a circumstance set out in subsection (2), (4), (5), (6) or (7), except on application by a negotiating party; but

                     (b)  may make an order under subsection (1), in a circumstance set out in subsection (3):

                              (i)  on its own initiative; or

                             (ii)  on application by a negotiating party or the Minister.

             (9)  Anything done by a negotiating party or any other person in respect of the proposed agreement is not protected action if it is done at a time when the bargaining period is suspended.

           (10)  An order under subsection (1) terminating the bargaining period may, if the Commission considers it to be in the public interest, contain a declaration that, during a specified period beginning at the time of the termination, a specified negotiating party or employee of the employer:

                     (a)  is not allowed to initiate a new bargaining period in relation to specified matters that are dealt with by the proposed agreement; or

                     (b)  may initiate such a bargaining period only on conditions specified in the declaration.

170MX  What happens if Commission terminates a bargaining period under subsection 170MW(3) or (7)

             (1)  This section applies if a bargaining period is terminated on the ground set out in subsection 170MW(3) or (7).

             (2)  As soon as practicable, the Commission must begin to exercise the conciliation powers mentioned in section 170MY:

                     (a)  to facilitate the making of an agreement under Division 2 or 3; or

                     (b)  otherwise to settle any matter or issue that could be covered by such an agreement.

This subsection applies even if the Commission has already attempted conciliation during the bargaining period.

             (3)  If, after exercising conciliation powers as required by subsection (2), the Commission is satisfied that:

                     (a)  the negotiating parties have not settled the matters that were at issue during the bargaining period (whether or not by making an agreement); and

                     (b)  it is not likely that further conciliation will result in the matters being settled within a reasonable time;

the Commission must, if it considers it appropriate, exercise the arbitration powers mentioned in section 170MY to make an award that deals with the matters.

             (4)  Despite any other provision of this Act, those arbitration powers may only be exercised by a Full Bench.

             (5)  In exercising those arbitration powers, the Full Bench must have regard to the following:

                     (a)  the matters that were at issue during the bargaining period;

                     (b)  the merits of the case;

                     (c)  the interests of the negotiating parties and the public interest;

                     (d)  how productivity might be improved in the business or part of the business concerned;

                     (e)  the extent to which the conduct of the negotiating parties during the bargaining period was reasonable;

                      (f)  any relevant principles formulated by a Full Bench for the purposes of this subsection.

             (6)  Subsection (5) does not, by implication, limit the matters to which the Full Bench may have regard.

170MY  Commission’s powers where section 170MX applies

             (1)  The Commission has the conciliation and arbitration powers in relation to the matters mentioned in subsections 170MX(2) and (3) that it would have under Part VI in relation to the matters if that Part applied to conciliation and arbitration in relation to the matters instead of in relation to industrial disputes.

             (2)  To avoid doubt, the Commission’s powers under subsection (1) are not limited by section 89A.

170MZ  Awards under section 170MX

             (1)  An award under subsection 170MX(3) must specify a date as its nominal expiry date.

             (2)  Subject to this section, the award remains in operation at all times after it commences.

             (3)  The award has effect subject to any conditions that are specified in the award.

             (4)  Before the award’s nominal expiry date has passed, the Full Bench must not revoke the award unless it is satisfied that:

                     (a)  the employer and the one or more organisations, or a majority of the employees, who are bound by the award have agreed to the revocation (for example, because they propose to make an agreement under Division 2 or 3); and

                     (b)  the revocation would not be against the public interest.

             (5)  If:

                     (a)  the award’s nominal expiry date has passed; and

                     (b)  either:

                              (i)  the employer, or an organisation, bound by the award; or

                             (ii)  a majority of the employees to whom the award applies;

                            request the Commission in writing to terminate the award; and

                     (c)  the Commission has given the following a reasonable opportunity to be heard in relation to the request:

                              (i)  the employer bound by the award;

                             (ii)  any organisations bound by the award;

                            (iii)  the employees to whom the award applies; and

                     (d)  the Commission considers that it is not contrary to the public interest to terminate the award;

the Commission must terminate the award.

             (6)  The award may only be varied for the purpose of:

                     (a)  removing ambiguity or uncertainty; or

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

             (7)  Before the award’s nominal expiry date has passed, no bargaining period may be initiated under section 170MI for negotiating an agreement in relation to the employment of employees whose employment is dealt with in the award.

170N  Commission not to arbitrate during bargaining period

                   During a bargaining period, the Commission must not exercise its arbitration powers under Part VI in relation to a matter that is at issue between the negotiating parties.

170NA  Conciliation in respect of agreements

             (1)  The Commission has the conciliation powers in relation to a matter arising under this Part that it would have under Part VI in relation to the matter if that Part applied to conciliation in relation to the matters instead of in relation to industrial disputes.

             (2)  If 2 or more organisations of employees are involved in the negotiations or proposed negotiations, the Commission may order that all of the organisations be represented, for the purposes of conciliating the matter, by a single person or group of persons, where the person or persons are authorised by the organisations to represent them (whether generally or in relation to the particular negotiations).

             (3)  Subsection (2) does not, by implication, limit the powers mentioned in subsection (1).

170NB  Employers not to discriminate between unionist and non‑unionist

             (1)  An employer must not, in negotiating an agreement under Division 2 or 3, discriminate between employees of the employer:

                     (a)  because some of those employees are members of an organisation of employees while others are not members of such an organisation; or

                     (b)  because some of those employees are members of a particular organisation of employees, while others are not members of that organisation or are members of a different organisation of employees.

             (2)  In so far as a purpose of the agreement is to settle some or all of the matters that are the subject of an industrial dispute to which the employer is a party, subsection (1) does not require the agreement to cover:

                     (a)  matters that are not the subject of that dispute; or

                     (b)  employees whose terms and conditions of employment are not the subject of that dispute.

             (3)  In so far as a purpose of the agreement is to prevent industrial disputes of a particular kind, subsection (1) does not require the agreement to cover:

                     (a)  matters that are not likely to be the subject of a dispute of that kind; or

                     (b)  employees whose terms and conditions of employment are not likely to be the subject of a dispute of that kind.

Division 9—Prohibition of coercion in relation to agreements

170NC  Coercion of persons to make, vary or terminate certified agreements etc.

             (1)  A person must not:

                     (a)  take or threaten to take any industrial action or other action; or

                     (b)  refrain or threaten to refrain from taking any action;

with intent to coerce another person to agree, or not to agree, to:

                     (c)  making, varying or terminating, or extending the nominal expiry date of, an agreement under Division 2 or 3; or

                     (d)  approving any of the things mentioned in paragraph (c).

Note:          The Court has certain remedial powers in relation to a contravention of this section: see Division 10.

             (2)  Subsection (1) does not apply to action, or industrial action, that is protected action (within the meaning of Division 8).

             (3)  An employer must not coerce, or attempt to coerce, an employee of the employer:

                     (a)  not to make a request as mentioned in subsection 170LK(4) in relation to an agreement that the employer proposes to make; or

                     (b)  to withdraw such a request.

Division 10—Enforcement and remedies

170ND  Penalty provisions

                   For the purposes of this Division, each of the following is a penalty provision:

                     (a)  section 170MDA;

                     (b)  section 170MN;

                     (c)  section 170MU;

                     (d)  section 170NB;

                     (e)  section 170NC.

170NE  Eligible court

                   For the purposes of this Division, each of the following is an eligible court:

                     (a)  the Federal Court of Australia;

                     (b)  a District, County or Local Court;

                     (c)  a magistrate’s court.

170NF  Penalties for contravening penalty provisions

             (1)  A contravention of a penalty provision is not an offence. However, an eligible court may make an order imposing a penalty on a person who contravenes a penalty provision.

             (2)  The penalty cannot be more than $10,000 for a body corporate or $2,000 in other cases.

             (3)  An application for an order under subsection (1) that relates to a contravention of section 170MDA may be made by:

                     (a)  the employees making the request mentioned in that section; or

                     (b)  an organisation of employees of which any of the employees making that request is a member; or

                     (c)  an inspector; or

                     (d)  any other person prescribed by the regulations.

             (4)  An application for an order under subsection (1) that relates to a contravention of section 170MN may be made by:

                     (a)  any employee whose employment is subject to the certified agreement concerned; or

                     (b)  any other person who is bound by the agreement; or

                     (c)  any person who is affected by the industrial action or lockout concerned; or

                     (d)  any other person prescribed by the regulations.

             (5)  An application for an order under subsection (1) that relates to a contravention of section 170MU may be made by:

                     (a)  the employee concerned; or

                     (b)  an organisation of employees of which that employee is a member; or

                     (c)  an inspector; or

                     (d)  any other person prescribed by the regulations.

             (6)  An application for an order under subsection (1) that relates to a contravention of section 170NB may be made by:

                     (a)  any employee who allegedly was disadvantaged because of the discrimination mentioned in subsection 170NB(1); or

                     (b)  an organisation of employees of which that employee is a member; or

                     (c)  an inspector; or

                     (d)  any other person prescribed by the regulations.

             (7)  An application for an order under subsection (1) that relates to a contravention of section 170NC may be made by:

                     (a)  an employee whose employment is subject to the agreement concerned or will be subject to the proposed agreement concerned; or

                     (b)  any other person bound by the agreement concerned or who will be bound by the proposed agreement concerned; or

                     (c)  the person who allegedly was intended to be coerced; or

                     (d)  an organisation of employees of which that person is a member; or

                     (e)  an inspector; or

                      (f)  any other person prescribed by the regulations.

170NG  Injunctions

                   An eligible court may grant an injunction requiring a person not to contravene, or to cease contravening, a penalty provision.

170NH  Reinstatement and compensation where employer contravenes section 170MU

             (1)  If an employer contravenes section 170MU, an eligible court may order the employer:

                     (a)  if the contravention was constituted by dismissing an employee—to reinstate the person dismissed to the position that the person occupied immediately before the dismissal or to a position no less favourable than that position; and

                     (b)  in any case—to pay, to the person dismissed, injured or prejudiced, compensation for loss suffered as a result of the dismissal, injury or prejudice.

             (2)  The rights of and relating to reinstatement that are conferred on a person by this section do not limit any other rights of the person.

Division 11—Miscellaneous

170NI  Complementary State laws

             (1)  A complementary State law may confer functions and powers on the Commission.

             (2)  In this section:

certified agreement provisions means this Part, and the other provisions of this Act so far as they relate to this Part.

complementary State law means a law of a State that applies the certified agreement provisions as a law of the State, with:

                     (a)  the modifications required by the regulations; and

                     (b)  any other modifications permitted by the regulations.

modifications includes additions, omissions and substitutions.

Part VID—Australian workplace agreements (AWAs)

Division 1—Preliminary

170VA  Interpretation

                   In this Part, unless the contrary intention appears:

additional approval requirements means the additional approval requirements in section 170VPA.

ancillary document means any of the following:

                     (a)  a variation agreement;

                     (b)  an extension agreement;

                     (c)  a termination agreement;

                     (d)  a termination notice.

approval notice means an approval notice issued by the Employment Advocate or Commission under Division 5.

approved means approved under Division 5 by the Employment Advocate or Commission.

AWA has a meaning affected by sections 170VB and 170VPJ.

AWA date means the date on which the employer and employee sign the AWA or, if they sign on different dates, the later of those dates.

bargaining agent means a person or group of persons duly appointed as a bargaining agent under section 170VK.

comparable employee, in relation to an AWA, means an employee of the employer who does the same kind of work as the employee who is a party to the AWA.

constitutional trade or commerce means trade or commerce:

                     (a)  between Australia and a place outside Australia; or

                     (b)  between the States; or

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

eligible court means any of the following:

                     (a)  the Federal Court of Australia;

                     (b)  a District, County or Local Court;

                     (c)  a magistrate’s court.

employee has a meaning affected by section 170VB.

employer has a meaning affected by section 170VB.

existing employee, in relation to an AWA, means an employee who signed the AWA after commencing the employment to which the AWA relates.

extension agreement means an agreement to extend the nominal expiry date of an AWA.

file, in relation to an AWA or ancillary document, means file with the Employment Advocate.

filing receipt means a receipt issued by the Employment Advocate.

filing requirements means the filing requirements in section 170VO.

new employee, in relation to an AWA, means an employee who signed the AWA before, or at the time of, commencing the employment to which the AWA relates.

no‑disadvantage test means the no‑disadvantage test set out in Part VIE.

nominal expiry date means the nominal expiry date that applies under section 170VH.

party, in relation to an AWA or ancillary document, means the employer or employee.

period of operation, in relation to an AWA, means the period of operation as determined under section 170VJ.

referral notice means a referral notice issued by the Employment Advocate under Division 5.

refusal notice means a refusal notice issued by the Employment Advocate or Commission under Division 5.

relevant or designated award means the relevant or designated award that is used when applying the no‑disadvantage test set out in Part VIE.

State agreement means an employment agreement made under, or for the purposes of, a law of a State.

sure means not having any doubts.

termination agreement means an agreement to terminate an AWA.

termination notice means a notice of termination under section 170VM.

variation agreement means an agreement to vary an AWA.

verified copy, in relation to a document, means a copy that is certified as being a true copy of the document.

170VB  Proposed AWAs and ancillary documents—interpretation

             (1)  So far as the context permits, a reference in this Part to an AWA or ancillary document includes a reference to a proposed AWA or ancillary document.

             (2)  In relation to a proposed AWA or ancillary document, a reference to the employer or employee is a reference to the person who will be the employer or employee when the AWA or ancillary document starts to operate.

170VC  Scope of this Part

                   An AWA is of no effect unless at least one of the following applies at the time when the AWA is filed:

                     (a)  the employer is a constitutional corporation;

                     (b)  the employer is the Commonwealth;

                     (c)  the employee’s primary workplace is in a Territory;

                     (d)  the employer is a waterside employer, the employee is a waterside worker and the employee’s employment is in connection with constitutional trade or commerce;

                     (e)  the employee is a maritime employee and the employee’s employment is in connection with constitutional trade or commerce;

                      (f)  the employee is a flight crew officer and the employee’s employment is in connection with constitutional trade or commerce.

170VCA  Functions of Commission

             (1)  The Commission must, as far as practicable, perform its functions under this Part in a way that furthers the objects of this Act.

             (2)  Section 90 does not apply to the performance of functions of the Commission under this Part.

             (3)  In performing its functions under this Part, the Commission may not act under paragraph 111(1)(g) on the grounds specified in subparagraph (i), (ii) or (iii) of that paragraph.

Division 2—General rules about AWAs and ancillary documents

170VD  AWAs and ancillary documents only have effect as provided by this Part

                   An AWA or ancillary document has effect as provided by this Part, and not otherwise. In particular:

                     (a)  an AWA for a new employee has no effect before a filing receipt is issued for the AWA; and

                     (b)  an AWA for an existing employee has no effect before an approval notice is issued for the AWA.

170VE  Collective agreements

             (1)  For the purposes of this Part, 2 or more agreements that have been negotiated collectively may be included in the same document if the same employer is a party to all the agreements. The agreements need not be in the same terms.

             (2)  An AWA for a new employee cannot be included in the same document as an AWA for an existing employee.

Division 3—Making, varying or terminating an AWA

170VF  Employer and employee may make an AWA

             (1)  An employer and employee may make a written agreement, called an Australian workplace agreement, that deals with matters pertaining to the relationship between an employer and employee.

             (2)  The AWA may be made before commencement of the employment.

170VG  Content of AWA

             (1)  The employer must ensure that the AWA includes the provisions relating to discrimination that are prescribed by the regulations. If the AWA does not in fact include those provisions, the AWA is taken to include those provisions.

             (2)  The employer must ensure that the AWA does not include any provisions that prohibit or restrict disclosure of details of the AWA by either party to another person.

             (3)  The employer must ensure that the AWA includes a dispute resolution procedure. If the AWA does not in fact include a dispute resolution procedure, the AWA is taken to include the model procedure that is prescribed by the regulations.

             (4)  A dispute resolution procedure that is included in an AWA under subsection (3), or prescribed by the regulations for the purposes of subsection (3), may confer powers on the Commission to settle disputes between the parties to the AWA about the application or interpretation of the AWA. The Commission may exercise those powers.

170VH  Nominal expiry date of AWA

             (1)  An AWA may specify a date as its nominal expiry date. The date cannot be more than 3 years after the AWA date.

             (2)  If no date is specified, then the nominal expiry date is the 3rd anniversary of the AWA date.

             (3)  An employer and employee may make a written agreement that extends the nominal expiry date. The extended date cannot be more than 3 years after the AWA date.

             (4)  The extension agreement has no effect unless a filing receipt is issued for the extension agreement at least 21 days before the nominal expiry date that is to be extended.

             (5)  The extension agreement takes effect on the day after an approval notice is issued for the extension agreement.

170VJ  Period of operation of AWA

             (1)  An AWA for a new employee starts operating on the later of:

                     (a)  the day after a filing receipt is issued for the AWA; or

                     (b)  the day specified in the AWA as the starting day; or

                     (c)  the day the employment commences;

and stops operating at the earlier of the following times:

                     (d)  the end of the day when a refusal notice is issued in relation to the AWA;

                     (e)  the time when a termination under section 170VM takes effect;

                      (f)  the time when another AWA between the employer and employee starts to operate.

             (2)  An AWA for an existing employee starts operating on the later of:

                     (a)  the day after an approval notice is issued for the AWA; or

                     (b)  the day specified in the AWA as the starting day;

and stops operating at the earlier of the following times:

                     (c)  the time when a termination under section 170VM takes effect;

                     (d)  the time when another AWA between the employer and employee starts to operate.

170VK  Bargaining agents

             (1)  An employer or employee may appoint a person to be his or her bargaining agent in relation to the making, approval, variation or termination of an AWA. The appointment must be made in writing.

             (2)  Subject to subsection (3), an employer or employee must not refuse to recognise a bargaining agent duly appointed by the other party for the purposes of subsection (1).

             (3)  Subsection (2) does not apply if the person refusing has not been given a copy of the bargaining agent’s instrument of appointment before the refusal.

             (4)  An employer or employee must not coerce, or attempt to coerce, the other party:

                     (a)  to appoint, or not to appoint, a particular person as an authorised bargaining agent; or

                     (b)  to terminate the appointment of an authorised bargaining agent.

             (5)  In this section:

person includes a group of persons.

170VL  Varying the terms of an AWA

             (1)  An employer and employee may make a written agreement varying an AWA.

 

             (2)  The variation takes effect on the later of:

                     (a)  the day after an approval notice is issued for the variation agreement; or

                     (b)  the day specified in the variation agreement as the date of effect.

             (3)  Section 170VG applies to the AWA as varied in the same way as that section applies to the original AWA.

170VM  Terminating an AWA

Termination by a termination agreement

             (1)  The employer and employee may at any time make a written agreement to terminate the AWA.

             (2)  A termination under subsection (1) takes effect at the end of the day on which an approval notice is issued for the termination agreement or at such later time as is specified in the termination agreement.

Termination by the Commission

             (3)  After the nominal expiry date of an AWA, the Commission may, on application by either party, terminate the AWA if the Commission considers that it is not contrary to the public interest to do so.

             (4)  The Commission must issue a copy of its determination to the parties and to the Employment Advocate.

             (5)  A termination under subsection (3) takes effect at the end of the day on which the Commission issues copies of its determination, or at such later time as is specified in the determination.

 

Termination in accordance with the AWA

             (6)  After the nominal expiry date of an AWA, the employer or the employee may file a termination notice, stating that the AWA is to be terminated in a manner provided for in the AWA.

             (7)  A termination under subsection (6) takes effect at the end of the day on which an approval notice is issued for the termination notice, or at a later time specified in the termination notice.

Division 4—Filing AWAs and ancillary documents with Employment Advocate

170VN  Filing AWAs and ancillary documents with Employment Advocate

             (1)  An AWA or ancillary document may be filed with the Employment Advocate.

             (2)  If the Employment Advocate is satisfied that the filing requirements for the document have been met, the Employment Advocate must issue a receipt to the person who filed the document.

             (3)  The Employment Advocate must not issue a filing receipt for an AWA unless the AWA was filed within 14 days after the AWA date.

170VO  Filing requirements

AWA

             (1)  The filing requirements for an AWA are:

                     (a)  the AWA must be signed and dated by each of the parties, and the signatures must be witnessed; and

                     (b)  the AWA must be accompanied by a declaration by the employer:

                              (i)  declaring that the AWA complies with section 170VG; and

                             (ii)  declaring that, before the employee signed the AWA, the employer gave the employee a copy of an information statement prepared by the Employment Advocate; and

                            (iii)  declaring whether or not the employer has offered an AWA in the same terms to all comparable employees; and

                     (c)  the employer must have provided any other information that the Employment Advocate requires, by notice published in the Gazette, for the purpose of performing his or her functions.

             (2)  The information statement prepared by the Employment Advocate for the purposes of subsection (1) must include information about the following matters, but may include other information:

                     (a)  Commonwealth statutory entitlements;

                     (b)  occupational health and safety law;

                     (c)  services provided by the Employment Advocate;

                     (d)  bargaining agents.

 

Variation agreement

             (3)  The filing requirements for a variation agreement are:

                     (a)  the variation agreement must be signed and dated by each of the parties, and the signatures must be witnessed; and

                     (b)  the variation agreement must be accompanied by a declaration by the employer:

                              (i)  declaring that the AWA, as varied, complies with section 170VG; and

                             (ii)  declaring whether or not the employer has offered a variation agreement in the same terms to all comparable employees who also have an AWA in the same terms with the employer; and

                     (c)  the employer must have provided any other information that the Employment Advocate requires, by notice published in the Gazette, for the purpose of performing his or her functions.

Extension agreement

             (4)  The filing requirements for an extension agreement are:

                     (a)  the extension agreement must be signed and dated by each of the parties, and the signatures must be witnessed; and

                     (b)  the employer must have provided any other information that the Employment Advocate requires, by notice published in the Gazette, for the purpose of performing his or her functions.

 

Termination agreement

             (5)  The filing requirements for a termination agreement are:

                     (a)  the termination agreement must be signed and dated by each of the parties, and the signatures must be witnessed; and

                     (b)  the employer must have provided any other information that the Employment Advocate requires, by notice published in the Gazette, for the purpose of performing his or her functions.

Termination notice

             (6)  The filing requirements for a termination notice are:

                     (a)  the termination notice must be signed and dated by the party or parties filing the notice, and each signature must be witnessed; and

                     (b)  the party or parties filing the termination notice must have provided any other information that the Employment Advocate requires, by notice published in the  Gazette, for the purpose of performing his or her functions.

170VP  Employer’s declaration must be accurate

                   An employer must not, in a declaration filed with the Employment Advocate for the purposes of this Part, make a statement that the employer knows, or ought reasonably to know, is false or misleading.

 

Division 5—Approval of AWAs and ancillary documents

Subdivision A—Preliminary

170VPA  Additional approval requirements for AWA and ancillary documents

AWA

             (1)  The additional approval requirements for an AWA are:

                     (a)  the AWA complies with section 170VG; and

                     (b)  the employee received a copy of the AWA at least the required number of days before signing the AWA; and

                     (c)  the employer explained the effect of the AWA to the employee between:

                              (i)  the time the employee first received a copy of the AWA; and

                             (ii)  the time when the employee signed the AWA; and

                     (d)  the employee genuinely consented to making the AWA; and

                     (e)  in a case where the employer failed to offer an AWA in the same terms to all comparable employees—the employer did not act unfairly or unreasonably in failing to do so.

Note:          An employer might have valid reasons for not offering an AWA in the same terms to all comparable employees.

For the purposes of this subsection, the required number of days is 5 for a new employee and 14 for an existing employee.

Variation agreement

             (2)  The additional approval requirements for a variation agreement are:

                     (a)  the AWA, as varied, complies with section 170VG; and

                     (b)  the employee received a copy of the variation agreement at least 14 days before signing the variation agreement; and

                     (c)  the employer explained the effect of the variation agreement to the employee between:

                              (i)  the time the employee first received a copy of the variation agreement; and

                             (ii)  the time when the employee signed the variation agreement; and

                     (d)  the employee genuinely consented to making the variation agreement; and

                     (e)  in a case where the employer did not offer a variation agreement in the same terms to all comparable employees who also have an AWA in the same terms—the employer did not act unfairly or unreasonably in not doing so.

Note:          An employer might have valid reasons for not offering a variation agreement in the same terms to all comparable employees.

Extension agreement

             (3)  The additional approval requirement for an extension agreement is that the employee genuinely consented to making the extension agreement.

Termination agreement

             (4)  The additional approval requirement for a termination agreement is that the employee genuinely consented to making the termination agreement.

Termination notice

             (5)  The additional approval requirement for a termination notice is that the termination is in accordance with the AWA.

Subdivision B—Approval by Employment Advocate

170VPB  Approval of AWA by Employment Advocate

             (1)  The Employment Advocate must approve an AWA for which a filing receipt has been issued if:

                     (a)  the Employment Advocate is sure that the AWA passes the no‑disadvantage test; and

                     (b)  the Employment Advocate is satisfied that the AWA meets the additional approval requirements.

Note:          The additional approval requirements are in section 170VPA.

             (2)  If the Employment Advocate has concerns about whether the AWA passes the no‑disadvantage test, but those concerns are resolved by:

                     (a)  a written undertaking given by the employer and accepted by the Employment Advocate; or

                     (b)  other action by the parties;

the Employment Advocate must approve the AWA.

             (3)  If the Employment Advocate has concerns about whether the AWA passes the no‑disadvantage test and those concerns are not resolved under subsection (2), the Employment Advocate must refer the AWA to the Commission.

             (4)  If the Employment Advocate is not satisfied that the AWA meets the additional approval requirements, the Employment Advocate must refuse to approve the AWA.

170VPC  Approval of variation agreement by Employment Advocate

             (1)  The Employment Advocate must approve a variation agreement for which a filing receipt has been issued if:

                     (a)  the Employment Advocate is sure that the AWA, as varied, passes the no‑disadvantage test; and

                     (b)  the Employment Advocate is satisfied that the variation agreement meets the additional approval requirements.

Note:          The additional approval requirements are in section 170VPA.

             (2)  If the Employment Advocate has concerns about whether the AWA, as varied, passes the no‑disadvantage test, but those concerns are resolved by:

                     (a)  a written undertaking given by the employer and accepted by the Employment Advocate; or

                     (b)  other action by the parties;

the Employment Advocate must approve the variation agreement.

             (3)  If the Employment Advocate has concerns about whether the AWA, as varied, passes the no‑disadvantage test and those concerns are not resolved under subsection (2), the Employment Advocate must refer the variation agreement to the Commission.

             (4)  If the Employment Advocate is not satisfied that the variation agreement meets the additional approval requirements, the Employment Advocate must refuse to approve the variation agreement.

170VPD  Approval of other ancillary documents by Employment Advocate

             (1)  This section applies to the following ancillary documents:

                     (a)  an extension agreement;

                     (b)  a termination agreement;

                     (c)  a termination notice.

             (2)  The Employment Advocate must approve the ancillary document if the Employment Advocate is satisfied that the ancillary document meets the additional approval requirements for the document concerned. Otherwise, the Employment Advocate must refuse to approve the ancillary document.

170VPE  Protocol for referring AWAs and variation agreements to the Commission

             (1)  As soon as practicable after the commencement of this section, the President must establish a protocol to provide general guidance to the Employment Advocate concerning the referral of AWAs or variation agreements to the Commission. The terms of the protocol must have the concurrence of the Employment Advocate.

             (2)  In deciding whether to refer an AWA or variation agreement to the Commission, the Employment Advocate must apply the protocol.

170VPF  Employment Advocate must issue approval, refusal or referral notice

             (1)  If the Employment Advocate approves an AWA or ancillary document, the Employment Advocate must issue an approval notice to the employer.

             (2)  If the Employment Advocate refuses to approve an AWA or ancillary document, the Employment Advocate must issue a refusal notice to the employer.

             (3)  If the Employment Advocate refers an AWA or variation agreement to the Commission, the Employment Advocate must issue a referral notice to the employer, advising of the referral.

             (4)  In each approval notice, refusal notice or referral notice issued under this section, the Employment Advocate must identify the relevant or designated award that applies to the AWA to which the notice relates.

Subdivision C—Approval by Commission

170VPFA  Withdrawal of AWA or variation agreement

                   Either party to an AWA (other than an AWA for a new employee) or variation agreement that has been referred to the Commission by the Employment Advocate may withdraw the AWA or variation agreement by notice in writing lodged with the Commission.

170VPG  Approval of AWA by Commission

             (1)  This section applies to an AWA that is referred to the Commission by the Employment Advocate.

             (2)  The Commission must approve the AWA if the Commission is satisfied that the AWA passes the no‑disadvantage test.

             (3)  If the Commission has concerns about whether the AWA passes the no‑disadvantage test, but those concerns are resolved by:

                     (a)  a written undertaking given by the employer and accepted by the Commission; or

                     (b)  other action by the parties;

the Commission must approve the AWA.

             (4)  If the Commission considers that it is not contrary to the public interest to approve the AWA, it must approve the AWA (whether or not subsection (2) or (3) requires the Commission to approve the AWA).

Note:          An example of a case where the Commission may be satisfied that approving the AWA is not contrary to the public interest is where making the AWA is part of a reasonable strategy to deal with a short‑term crisis in, and to assist in the revival of, a business or part of a business.

             (5)  In any case where the Commission is not required to approve the AWA, the Commission must refuse to approve the AWA.

170VPH  Approval of variation agreement by Commission

             (1)  This section applies to a variation agreement that is referred to the Commission by the Employment Advocate.

             (2)  The Commission must approve the variation agreement if the Commission is satisfied that the AWA, as varied, passes the no‑disadvantage test.

             (3)  If the Commission has concerns about whether the AWA, as varied, passes the no‑disadvantage test, but those concerns are resolved by:

                     (a)  a written undertaking given by the employer and accepted by the Commission; or

                     (b)  other action by the parties;

the Commission must approve the variation agreement.

             (4)  If the Commission considers that it is not contrary to the public interest to approve the variation agreement, it must approve the variation agreement (whether or not subsection (2) or (3) requires the Commission to approve the variation agreement).

Note:          An example of a case where the Commission may be satisfied that approving the variation agreement is not contrary to the public interest is where making the variation agreement is part of a reasonable strategy to deal with a short‑term crisis in, and to assist in the revival of, a business or part of a business.

             (5)  In any case where the Commission is not required to approve the variation agreement, the Commission must refuse to approve the variation agreement.

170VPI  Commission must issue approval or refusal notice etc.

             (1)  If the Commission approves an AWA or a variation agreement, the Commission must:

                     (a)  issue an approval notice to the employer; and

                     (b)  send a copy of the approval notice to the Employment Advocate; and

                     (c)  send the Employment Advocate a copy of the AWA or variation agreement that was approved.

Note:          An undertaking accepted in connection with an AWA is deemed to form part of the AWA. Therefore a copy of the undertaking will be sent to the Employment Advocate under this section.

             (2)  If the Commission refuses to approve an AWA or a variation agreement, the Commission must:

                     (a)  issue a refusal notice to the employer; and

                     (b)  send a copy of the refusal notice to the Employment Advocate.

Subdivision D—Miscellaneous

170VPJ  Undertakings deemed to be included in AWA

                   An undertaking accepted by the Employment Advocate or Commission under this Division is taken to be included in the AWA.

170VPK  Employment Advocate to issue copies of approved AWAs and ancillary documents

             (1)  After an AWA or ancillary document is approved by the Employment Advocate, the Employment Advocate must issue to the employer a copy of the AWA or ancillary document, as approved.

             (2)  After an AWA or variation agreement is approved by the Commission, the Employment Advocate must issue to the employer a copy of the AWA or variation agreement, as approved.

Note:          An undertaking accepted in connection with an AWA is deemed to form part of the AWA. Therefore a copy of the undertaking will be issued to the employer under this section.

Division 6—Effect of an AWA

170VQ  Effect of AWA on awards and agreements

             (1)  During its period of operation, an AWA operates to the exclusion of any award that would otherwise apply to the employee’s employment. This subsection has effect subject to subsections (2) and (3).

 

             (2)  An AWA is of no effect if it is made:

                     (a)  after the commencement of an award that is made under subsection 170MX(3) and applies to the employee’s employment; and

                     (b)  before the nominal expiry date of the award.

             (3)  An AWA does not operate to the exclusion of an exceptional matters order, but prevails over an exceptional matters order to the extent of any inconsistency.

             (4)  During its period of operation, an AWA operates to the exclusion of any State award or State agreement that would otherwise apply to the employee’s employment.

             (5)  If a State award provides a remedy for the termination of an employee’s employment, subsection (4) is not intended to affect the provisions of the State award that relate to termination of employment, so far as those provisions are able to operate concurrently with the AWA.

             (6)  The relationship between an AWA and a certified agreement is as follows:

                     (a)  a certified agreement prevails over the AWA to the extent of any inconsistency if:

                              (i)  the certified agreement is in operation at the time the AWA comes into operation; and

                             (ii)  the nominal expiry date of the certified agreement is after the date on which the AWA comes into operation; and

                            (iii)  the certified agreement does not expressly allow a subsequent AWA to operate to the exclusion of the certified agreement or to prevail over the certified agreement to the extent of any inconsistency;

                     (b)  a certified agreement that comes into operation after the nominal expiry date of the AWA prevails over the AWA to the extent of any inconsistency;

                     (c)  in all other cases, the AWA operates to the exclusion of any certified agreement that would otherwise apply to the employee’s employment.

170VR  Effect of AWA on other laws

             (1)  Subject to this section, an AWA prevails over conditions of employment specified in a State law, to the extent of any inconsistency.

             (2)  Provisions in an AWA that deal with the following matters operate subject to the provisions of any State law that deals with the matter:

                     (a)  occupational health and safety;

                     (b)  workers’ compensation;

                     (c)  apprenticeship;

                     (d)  any other matter prescribed by the regulations.

             (3)  If a State law provides a remedy for the termination of an employee’s employment, subsection (1) is not intended to affect the provisions of the State law that relate to termination of employment, so far as those provisions are able to operate concurrently with the AWA.

             (4)  To the extent of any inconsistency, an AWA prevails over prescribed conditions of employment specified in a Commonwealth law that is prescribed by the regulations.

             (5)  In this section:

Commonwealth law means an Act or any regulations or other instrument made under an Act.

prescribed conditions means conditions that are identified by the regulations.

State law means a law of a State or Territory (including any regulations or other instrument made under a law of a State or Territory), but does not include a State award or State agreement.

170VS  AWA binds employer’s successor

             (1)  If:

                     (a)  an employee who is a party to an AWA becomes an employee of a new employer because the new employer is a successor to the whole or any part of the previous employer’s business or undertaking; and

                     (b)  at the succession time at least one of the following applies:

                              (i)  the new employer is a constitutional corporation;

                             (ii)  the new employer is the Commonwealth;

                            (iii)  the employee’s primary workplace is in a Territory;

                            (iv)  the new employer is a waterside employer, the employee is a waterside worker and the employee’s employment is in connection with constitutional trade or commerce;

                             (v)  the employee is a maritime employee and the employee’s employment is in connection with constitutional trade or commerce;

                            (vi)  the employee is a flight crew officer and the employee’s employment is in connection with constitutional trade or commerce;

then the new employer replaces the previous employer as a party to the AWA from the succession time.

             (2)  The succession does not affect the rights and obligations of the previous employer that arose before the succession.

             (3)  In this section:

successor means a successor, transmittee or assignee.

170VT  Parties must not breach AWA

             (1)  A party to an AWA must not breach the AWA.

             (2)  If the employee applies for an order under section 170VV in relation to an alleged breach of this section that involves the employee having received wages that are less than the wages required by the minimum conditions, the court may dismiss the application or adjourn the proceedings on the basis that an insufficient period of time has elapsed since the AWA started to operate for a reasonable comparison to be made for the purposes of the minimum conditions.

170VU  Industrial action etc. by party to AWA

             (1)  During the period of operation of an AWA before its nominal expiry date, the employee must not engage in industrial action in relation to the employment to which the AWA relates.

             (2)  During the period of operation of an AWA before its nominal expiry date, the employer must not lock out the employee for the purpose of supporting or advancing claims in respect of the employee’s employment.

Division 7—Enforcement and remedies

170VV  Penalties for contravening this Part

             (1)  An eligible court may make an order imposing a penalty on a person who contravenes a penalty provision.

             (2)  The penalty cannot be more than $10,000 for a body corporate or $2,000 in other cases.

             (3)  An application for an order under subsection (1) that relates to an AWA or ancillary document may be made by a party to the AWA or ancillary document.

             (4)  In this section:

penalty provision means subsection 170VK(2) or (4), section 170VP, subsection 170VT(1), section 170VU, subsection 170WE(1), subsection 170WF(1), subsection 170WG(1) or (2) or subsection 170WH(1) or (2).

170VW  Damages for breach of AWA

             (1)  A party to an AWA who suffers loss or damage as a result of a breach of the AWA by the other party may recover the amount of the loss or damage in an eligible court.

             (2)  The action must be brought within 6 years after the date on which the cause of action arose.

170VX  Compensation to new employee for shortfall in entitlements

             (1)  If an AWA for a new employee stops operating because of the issue of a refusal notice and the amount worked out under paragraph (a) below is less than the amount worked out under paragraph (b) below, the employee is entitled to recover the shortfall from the employer in an eligible court:

                     (a)  the total value of the entitlements to which the employee became entitled under the AWA for the period while it was in operation;

                     (b)  the total value of the entitlements to which the employee would have been entitled for that period under the relevant or designated award, if the AWA had not been made, in respect of the employment to which the AWA relates.

             (2)  If an AWA that has been approved for a new employee includes an undertaking by the employer and the amount worked out under paragraph (a) below is less than the amount worked out under paragraph (b) below, the employee is entitled to recover the shortfall from the employer in an eligible court:

                     (a)  the total value of the entitlements to which the employee became entitled under the AWA for the period before it was approved;

                     (b)  the total value of the entitlements to which the employee would have been entitled for that period if the AWA, as filed, had included the undertaking by the employer.

170VZ  Injunctions

                   An eligible court may grant an injunction requiring a person not to contravene, or to cease contravening, this Part.

170W  Interest on judgment etc.

             (1)  Section 179A applies to a court exercising powers under section 170VW or 170VX in the same way as that section applies to a court exercising powers under subsection 178(6).

             (2)  Section 179B applies to a debt under a judgment or order made under section 170VW or 170VX in the same way as that section applies to a debt under a judgment or order made under section 179.

170WA  Small claims procedure

             (1)  Section 179C applies to a proceeding under section 170VW or 170VX that is started by a person in a magistrate’s court in the same way as that section applies to an action under section 179 that is started in a magistrates’s court.

             (2)  Subsection (1) of this section does not apply if, in the same proceeding, the person applies for an order under subsection 170VV(1).

Division 8—Limited immunity for industrial action

170WB  Interpretation

             (1)  In this Division:

AWA industrial action means:

                     (a)  any industrial action taken by an employee directly against an employer for the purpose of compelling or inducing the employer:

                              (i)  to make an AWA, on particular terms and conditions, with the employee; or

                             (ii)  to make AWAs, on particular terms and conditions, with the employee and other employees; or

                     (b)  an employer locking out an employee for the purpose of compelling or inducing the employee to make an AWA, on particular terms and conditions, with the employer.

general industrial action means any action taken by an employer or employee for the purpose of:

                     (a)  compelling or inducing an employer or employee to accept particular terms or conditions of employment; or

                     (b)  enforcing compliance with any demand relating to employment.

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; or

                     (b)  a ban, limitation or restriction on the performance of work, or acceptance of or offering for work; or

                     (c)  a failure or refusal to attend for work or a failure or refusal to perform any work at all.

lock out, in relation to an employee, means prevent the employee from performing work under a contract of employment without terminating the contract.

             (2)  In this Division, a reference to taking action includes a reference to:

                     (a)  omitting to do something; or

                     (b)  bringing about a circumstance.

 170WC  Limited immunity conferred

             (1)  Subject to subsection (2), no action lies under any law (whether written or unwritten) in force in a State or Territory in respect of AWA industrial action unless the action has involved or is likely to involve:

                     (a)  personal injury; or

                     (b)  wilful or reckless destruction of, or damage to, property; or

                     (c)  the unlawful taking, keeping or use of property.

             (2)  Subsection (1) does not prevent an action for defamation being brought in respect of anything that occurred in the course of industrial action.

             (3)  If an employer locks out an employee under subsection (1), the employer is entitled to refuse to pay any remuneration to the employee in respect of the period of the lockout.

             (4)  An employer is not entitled to lock out an employee under subsection (1) unless the continuity of the employee’s employment, for such purposes as are prescribed by the regulations, is not affected by the lockout.

170WD  Immunity conditional on giving notice

             (1)  The immunity conferred by section 170WC in respect of AWA industrial action does not apply unless 3 working days’ notice of the intention to take the action was given to the other party in the manner and form required by the regulations.

             (2)  Notice need not be given by an employee under subsection (1) if the employer is taking general industrial action.

             (3)  Notice need not be given by an employer under subsection (1) if the employee is taking general industrial action.

170WE  Employer not to dismiss, prejudice etc. an employee for taking AWA industrial action

             (1)  An employer must not:

                     (a)  dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee’s prejudice; or

                     (b)  threaten to dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee’s prejudice;

wholly or partly because the employee is proposing to take, is taking or has taken, AWA industrial action.

             (2)  Subsection (1) does not apply to any of the following actions taken by the employer:

                     (a)  standing-down the employee;

                     (b)  refusing to pay the employee where, under the common law, the employer is permitted to do so because the employee has not performed work as directed;

                     (c)  action of the employer that is itself AWA industrial action to which section 170WC applies.

             (3)  In proceedings against an employer under section 170VV for an alleged contravention of subsection (1) of this section, it is to be presumed, unless the employer proves otherwise, that the alleged conduct of the employer was carried out wholly or partly because the employee was proposing to take, was taking or had taken, AWA industrial action.

Division 9—Miscellaneous

170WF  Hindering AWA negotiations

             (1)  A person who is not a party to negotiations relating to an AWA must not use threats or intimidation with the intention of hindering the negotiations or the making of the AWA. For this purpose party to negotiations includes a bargaining agent.

             (2)  This section does not apply to conduct by or on behalf of an organisation of employees for the purpose of negotiating a certified agreement, if the conduct is authorised by another provision of this Act.

170WG  Persons must not apply duress or make false statements in connection with AWA etc.

             (1)  A person must not apply duress to an employer or employee in connection with an AWA or ancillary document.

             (2)  A person must not knowingly make a false or misleading statement to another person with the intention of persuading the other person to make, or not to make, an AWA.

170WH  Employer must give copies of documents to employee

             (1)  As soon as practicable after an employer receives any of the following documents from the Employment Advocate or Commission, the employer must give the employee a copy of the document:

                     (a)  a filing receipt;

                     (b)  an approval notice, refusal notice or referral notice;

                     (c)  an AWA or ancillary document, as approved.

             (2)  The employer must give the employee any other document prescribed by the regulations, within the period required by the regulations.

170WHA  Intervention not permitted

                   A person other than:

                     (a)  a party to an AWA; or

                     (b)  a bargaining agent of a party;

must not be allowed to make submissions, or to be heard, in relation to the filing, approval, variation or termination of the AWA.

170WHB  Identity of AWA parties not to be disclosed

             (1)  A person (the entrusted person) must not disclose protected information that the entrusted person knows, or has reasonable grounds to believe, will identify another person (the AWA party) as being, or having been, a party to an AWA.

Penalty:  Imprisonment for 6 months.

             (2)  Each of the following is an exception to the prohibition in subsection (1):

                     (a)  the disclosure is made by the entrusted person in the course of performing functions or duties as a Registry official;

                     (b)  the disclosure is authorised by the regulations;

                     (c)  the disclosure is required or permitted by another Act;

                     (d)  the disclosure is authorised in writing by the AWA party.

             (3)  For the purposes of determining the burden of proof in proceedings for an offence against subsection (1), the exceptions in subsection (2) are taken to be part of the description of the offence.

             (4)  In this section:

protected information means information that was acquired by the entrusted person:

                     (a)  in the course of performing functions or duties as a Registry official; or

                     (b)  from a Registry official who disclosed the information as authorised by the regulations.

Registry official means:

                     (a)  the Industrial Registrar; or

                     (b)  a member of the staff of the Industrial Registry (including a Deputy Industrial Registrar).

170WHC  Commission not to publish AWA determinations

The Commission is not obliged under section 143 to publish any determination of the Commission that approves, refuses to approve or terminates an AWA. However, if the Commission does publish such a determination under section 143, the Commission must ensure that the publication does not disclose the identity of either party to the AWA.

170WHD  Hearings to be in private

Any hearing by the Commission for the purposes of this Part must be held in private.

170WI  Evidence

             (1)  The Employment Advocate may issue a verified copy of any document filed with, or issued or approved by, the Employment Advocate or Commission under this Part. The verified copy may only be issued to a person who is or was a party to the AWA or ancillary document to which the verified copy relates.

             (2)  The Employment Advocate may issue a certificate stating any one or more of the following:

                     (a)  that specified AWAs or ancillary documents are the only such documents that were filed in relation to a specified employer and employee before a date specified in the certificate; or

                     (b)  that specified notices are the only such notices that were issued to a specified employer by the Employment Advocate or Commission before a date specified in the certificate; or

                     (c)  that a filing receipt, approval notice, refusal notice or referral notice was issued for a specified AWA or ancillary document on a specified day.

The certificate may only be issued to a person who is or was a party to each of the documents to which the certificate relates.

 

             (3)  In all courts and proceedings:

                     (a)  a verified copy issued by the Employment Advocate is evidence of the document of which it is a verified copy; and

                     (b)  a certificate issued by the Employment Advocate under subsection (2) is evidence of the matters stated in the certificate.

             (4)  A document that purports to be a verified copy, or certificate, referred to in subsection (3) is taken to be such a copy or certificate, unless the contrary is proved.

170WJ  Signature on behalf of body corporate

                   An AWA or ancillary document may be signed on behalf of a body corporate by a duly authorised officer of the body corporate and need not be made under the body corporate’s seal.

170WK  AWAs with Commonwealth employees

             (1)  A Secretary may act on behalf of the Commonwealth in relation to AWAs with employees in relation to whom the Secretary has the powers of Secretary.

             (2)  In this section:

Secretary means a Secretary within the meaning of the Public Service Act 1922.

170WKA  Complementary State laws

             (1)  A complementary State law may confer functions and powers on the Commission, the Employment Advocate or an authorised officer.

             (2)  In this section:

AWA provisions means:

                     (a)  Part IVA and this Part; and

                     (b)  the other provisions of this Act so far as they relate to Part IVA or this Part.

complementary State law means a law of a State that applies the AWA provisions as a law of the State, with:

                     (a)  the modifications required by the regulations; and

                     (b)  any other modifications permitted by the regulations.

modifications includes additions, omissions and substitutions.

170WL  Regulations

                   The regulations may make provision in relation to the following matters:

                     (a)  requiring an employer who is a party to an AWA to supply copies of prescribed documents to the employee;

                     (b)  the qualifications and appointment of bargaining agents;

                     (c)  the required form of AWAs or ancillary documents (including a requirement that the document be in the English language);

                     (d)  the witnessing of signatures on AWAs or ancillary documents;

                     (e)  prescribing fees for the issue by the Employment Advocate of certificates and verified copies;

                      (f)  the making and retention by employers of records relating to the employment of persons under AWAs, and the inspection of such records.

Part VIE—No‑disadvantage test

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170X  Interpretation

                   In this Part, unless the contrary intention appears:

agreement means:

                     (a)  a certified agreement; or

                     (b)  an AWA.

approved apprenticeship means an apprenticeship approved by an approving authority for the purposes of section 170XD.

approved traineeship means a traineeship other than:

                     (a)  a National Training Wage traineeship; or

                     (b)  a Career Start traineeship; or

                     (c)  an Australian Traineeship System traineeship;

approved by an approving authority for the purposes of section 170XC.

approving authority means any person or unincorporated body that:

                     (a)  is a State or Territory training authority that exercises approval powers in relation to traineeships or apprenticeships; or

                     (b)  is an Industry Training Advisory Body; or

                     (c)  meets the criteria prescribed for the purposes of this definition;

and is declared in writing to be an approving authority for the purposes of this Part by:

                     (d)  the Minister for Employment, Education, Training and Youth Affairs; or

                     (e)  the Minister for Schools, Vocational Education and Training.

award includes a State award, but does not include:

                     (a)  an exceptional matters order; or

                     (b)  an award under section 170MX.

designated award, in relation to a person to whom an agreement will apply, means an award that the Employment Advocate under section 170XE, or the Commission under section 170XF, has determined to be appropriate for the purpose of deciding whether the agreement passes the no‑disadvantage test.

initial day means:

                     (a)  in relation to an AWA—the day on which it was made; or

                     (b)  in relation to a certified agreement—the day on which it was certified by the Commission.

relevant award, in relation to a person to whom an agreement will apply, means an award:

                     (a)  regulating any term or condition of employment of persons engaged in the same kind of work as that of the person under the agreement; and

                     (b)  that, immediately before the initial day of the agreement, is binding on the person’s employer.

170XA  When does an agreement pass the no‑disadvantage test?

             (1)  An agreement passes the no‑disadvantage test if it does not disadvantage employees in relation to their terms and conditions of employment.

             (2)  Subject to sections 170XB, 170XC and 170XD, an agreement disadvantages employees in relation to their terms and conditions of employment only if its approval or certification would result, on balance, in a reduction in the overall terms and conditions of employment of those employees under:

                     (a)  relevant awards or designated awards; and

                     (b)  any other law of the Commonwealth, or of a State or Territory, that the Employment Advocate or the Commission (as the case may be) considers relevant.

170XB  Special case—employee eligible for the Supported Wage System

                   If an agreement provides for the payment of wages to an employee who is eligible for the Supported Wage System at a rate that is not less than the rate set in accordance with that System for the employee, the approval or certification of the agreement is not to be taken to result in a reduction of the employee’s wages.

Note:          The Supported Wage System was endorsed by the Commission in the Full Bench decision dated 10 October 1994 (print L5723).

170XC  Special case—employee undertaking approved traineeship

             (1)  If an agreement provides for the payment of wages to an employee undertaking an approved traineeship at a rate that is not less than the appropriate percentage of the rate (benchmark rate) that would be applicable to the employee under the relevant award or designated award (as the case may be) if:

                     (a)  that award applied to him or her; and

                     (b)  he or she were not undertaking the traineeship;

the approval or certification of the agreement is not to be taken to result in a reduction of the employee’s wages.

             (2)  For the purposes of subsection (1), the appropriate percentage of the benchmark rate is such percentage of that rate as is determined in writing by the approving authority having regard to the reduction in the productive time of an employee undertaking the approved traineeship due to time spent in training.

             (3)  If the agreement adopts, as the qualification for a wage level, a criterion determined by the approving authority instead of the criterion applying under the relevant award or designated award (as the case may be), that award is taken, for the purposes of this section, to have effect as if the criterion determined by the approving authority were substituted for the last‑mentioned criterion.

170XD  Special case—employee undertaking approved apprenticeship

             (1)  This section applies if:

                     (a)  an agreement provides for the payment of wages to an employee undertaking an approved apprenticeship in a particular trade, occupation or kind of work; and

                     (b)  there is a relevant award or designated award regulating the payment of wages to employees undertaking an apprenticeship (benchmark apprenticeship) in the same trade, occupation or kind of work.

             (2)  The approval or certification of the agreement is to be taken to result in a reduction of the employee’s wages only if the agreement provides for the payment of wages to employees undertaking the approved apprenticeship at a rate that is less than the rate applicable under the relevant award or designated award (as the case may be) to employees undertaking the benchmark apprenticeship adjusted (if necessary) as provided in subsection (3).

             (3)  For the purposes of subsection (2), the rate that is applicable to an employee undertaking the benchmark apprenticeship is to be adjusted to take into account the proportionate difference, as determined by the approving authority, between the productive time of an employee under the approved apprenticeship and the productive time of an employee under the benchmark apprenticeship.

             (4)  If the agreement adopts, as the qualification for a wage level, a criterion determined by the approving authority instead of the criterion applying under the relevant award or designated award (as the case may be), that award is taken, for the purposes of this section, to have effect as if the criterion determined by the approving authority were substituted for the last‑mentioned criterion.

170XE  Determination of designated award or awards for the purposes of an AWA

             (1)  If:

                     (a)  an employer proposes to make an AWA with a person; and

                     (b)  there is no relevant award in relation to the person;

the employer must apply in writing to the Employment Advocate for the making of a determination under subsection (2).

             (2)  Upon application, the Employment Advocate must determine, and inform the employer in writing, that an award or awards (being an award or awards under this Act regulating terms or conditions of employment of employees engaged in the same kind of work as that of the person under the AWA) are appropriate for the purpose of deciding whether the agreement passes the no‑disadvantage test.

170XF  Determination of designated award or awards for the purposes of a certified agreement

             (1)  If:

                     (a)  an employer or organisation of employees proposes to make a certified agreement; and

                     (b)  there is no relevant award in relation to some or all of the persons to whom the agreement will apply;

the employer or organisation may apply in writing to the Commission for the making of a determination under subsection (2).

             (2)  Upon application, the Commission must determine, and inform the employer or organisation in writing, that an award or awards (being an award or awards under this Act regulating terms or conditions of employment of persons engaged in the same kind of work as that of those persons under the agreement) are appropriate for the purpose of deciding whether the agreement passes the no‑disadvantage test.

Part VII—Co-operation with the States

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171  Co-operation with States by President

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.

172  Co-operation with States by Industrial Registrar

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.

173  Member of Commission may exercise powers under prescribed State laws

             (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.

174  Reference of dispute to State authority for determination

             (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.

175  Joint proceedings

             (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).

176  Conference with State authorities

             (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 another Presidential Member 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.

Part VIII—Compliance

Division 1—Penalties and other remedies for contravention of awards and orders

177A  Definition of court of competent jurisdiction

In this Division:

court of competent jurisdiction means:

                     (a)  a District, County or Local Court; or

                     (b)  a magistrate’s court.

178  Imposition and recovery of penalties

             (1)  Subject to section 182, where an organisation or person bound by an award, an order of the Commission or a certified agreement breaches a term of the award, order or agreement, 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, order or agreement 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, order or agreement 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, order or agreement 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)—$5,000 for a body corporate or $1,000 in other cases; and

                           (iia)  if the breach is of a term of a certified agreement and continues for more than one day—the total of:

                                        (A)  $10,000 for a body corporate or $2,000 in other cases; and

                                        (B)  $5,000 for a body corporate, or $1,000 in other cases, for each day for which the breach continues; and

                           (iib)  if the breach is of a term of a certified agreement but subparagraph (iia) does not apply—$10,000 for a body corporate or $2,000 in other cases; and

                             (ii)  in any other case—$10,000 for a body corporate or $2,000 in other cases; and

                     (b)  where the penalty is not imposed by the Court—$10,000 for a body corporate or $2,000 in other cases.

          (4A)  A certified agreement may provide that subparagraph (4)(a)(iia) applies to specified breaches of the agreement as if sub-subparagraph (4)(a)(iia)(B) referred to a specified amount that is greater or less than $5,000 for a body corporate, or $1,000 in other cases. If such an agreement so provides, paragraph (4)(a) has effect accordingly.

             (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)  an employer who is a member of an organisation and who is affected by the breach;

                    (ca)  a person:

                              (i)  whose employment is, or at the time of the breach was, subject to the award; and

                             (ii)  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 or employee of an organisation that is affected, or any of whose members are affected, by the breach where the officer or employee is authorised, under the rules of the organisation, to sue on behalf of the organisation.

          (5A)  A penalty for a breach of a term of a certified agreement may be sued for and recovered by:

                     (a)  an inspector; or

                     (b)  an employee whose employment is subject to the agreement; or

                     (c)  a person or organisation that is bound by the agreement; or

                     (d)  an organisation:

                              (i)  that has at least one member whose employment is subject to the agreement; and

                             (ii)  that is entitled to represent the industrial interests of the member in relation to work carried on by the member that is subject to the agreement; or

                     (e)  an officer or employee of an organisation mentioned in paragraph (c) or (d), where the officer or employee 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 that the employer was required to pay under an award, order or agreement, the court may order the employer to pay to the employee the amount of the underpayment.

          (6A)  Where, in a proceeding against an employer under this section, it appears to the court concerned that the employer has not paid an amount to a superannuation fund that the employer was required, under an award, order or agreement, to pay on behalf of a person, the court may order the employer to make a payment to or in respect of that person for the purpose of restoring the person, as far as practicable, to the position that the person would have been in had the employer not failed to pay the amount to the superannuation fund. 

          (6B)  Without limiting the generality of subsection (6A), the court concerned may order that the employer pay to the superannuation fund referred to in subsection (6A), or another superannuation fund, an amount equal to the amount (in this subsection called the unpaid amount) that the employer failed to pay together with such additional amount as, in the opinion of the court, represents the return that would have accrued in respect of the unpaid amount had it been duly paid by the employer.

             (7)  An order shall not be made under subsection (6) or (6A) 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, order or agreement shall be commenced not later than 6 years after the commission of the breach.

             (9)  In this section (in its application to an order made under section 127B):

employee includes an independent contractor;

employer includes a person engaging an independent contractor.

179  Recovery of wages etc.

             (1)  Where an employer is required by an award, order or certified agreement to pay an amount to an employee, the employee may, not later than 6 years after the employer was required to make the payment to the employee under the award, order or agreement, sue for the amount of the payment in the Court or in any court of competent jurisdiction.

             (2)  An employee is entitled to sue under subsection (1) whether the payment was required to be made before or after the commencement of section 11 of the Industrial Relations Legislation Amendment Act (No. 2) 1990.

             (3)  In this section (in its application to an order made under section 127B):

employee includes an independent contractor;

employer includes a person engaging an independent contractor.

179A  Interest up to judgment

             (1)  In exercising its powers under subsection 178(6) or in a proceeding under section 179, the Court or a court of competent jurisdiction must, upon application, unless good cause is shown to the contrary, either:

                     (a)  order that there be included in the sum for which an order is made or judgment given, interest at such rate as the Court or court of competent jurisdiction, as the case may be, thinks fit on the whole or any part of the money for the whole or any part of the period between the date when the cause of action arose and the date on which the order is made or judgment entered; or

                     (b)  without proceeding to calculate interest in accordance with paragraph (a), order that there be included in the sum for which an order is made or judgment given, a lump sum instead of any such interest.

             (2)  Subsection (1) does not:

                     (a)  authorise the giving of interest upon interest or of a sum instead of such interest; or

                     (b)  apply in relation to any debt upon which interest is payable as of right whether by virtue of an agreement or otherwise; or

                     (c)  authorise the giving of interest, or a sum instead of interest, otherwise than by consent, upon any sum for which judgment is given by consent.

179B  Interest on judgment

A debt under a judgment or order of a court of competent jurisdiction made under subsection 178(6) or section 179 carries interest from the date on which the judgment is entered or order made at such rate as would apply under Part XIV if the debt were a judgment debt to which section 483 applies.

179C  Plaintiffs may choose small claims procedure in magistrates’ courts

If:

                     (a)  a person starts an action under section 179 in a magistrate’s court; and

                     (b)  the person indicates, in a manner prescribed by the regulations under this Act or by rules of court relating to that court, that he or she wants a small claims procedure to apply;

the action is to be dealt with under section 179D.

179D  Small claims procedure

             (1)  If an action is to be dealt with under this section, subsections (2), (3) and (4) apply in relation to the action.

             (2)  The procedure is governed by the following conditions:

                     (a)  the court may not award an amount exceeding $5,000 or such higher amount as is prescribed;

                     (b)  the court may act in an informal manner, is not bound by any rules of evidence, and may act without regard to legal forms and technicalities;

                     (c)  at any stage of the action, the court may amend the papers initiating the action if sufficient notice is given to any party adversely affected by the amendment;

                     (d)  a person is not entitled to be represented by counsel or solicitor unless the court permits;

                     (e)  if the court permits a party to be represented by counsel or solicitor, the court may, if it thinks fit, do so subject to conditions designed to ensure that no other party is unfairly disadvantaged.

             (3)  In a case heard in a court of a Territory:

                     (a)  despite paragraphs (2)(d) and (e), the regulations made under this Act may prohibit or restrict legal representation of the parties; and

                     (b)  the regulations made under this Act may provide for the representation of a party in specified circumstances by an officer or employee of an organisation of employees or of an organisation or association of employers.

             (4)  In a case heard in a court of a State:

                     (a)  despite paragraphs (2)(d) and (e), if, in a particular proceeding in that court (whatever the nature of the proceeding), the law of the State prohibits or restricts legal representation of the parties—the regulations made under this Act may prohibit or restrict legal representation of the parties to the same extent as that law; and

                     (b)  if, in a particular proceeding in that court (whatever the nature of the proceeding), the law of the State allows representation of a party in that court in some circumstances by officials of bodies representing interests related to the matters in dispute—the regulations made under this Act may provide for representation of a party in specified circumstances by an officer or employee of an organisation of employees or of an organisation or association of employers.

180  Unclaimed moneys

             (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, order or certified agreement; 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 3—Cancellation and suspension of awards and orders

187  Cancellation and suspension of awards and orders

             (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 VIIIA—Payments in relation to periods of industrial action

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187AA  Payments not to be made or accepted in relation to periods of industrial action

             (1)  An employer must not make a payment to an employee in relation to a period during which the employee engaged, or engages, in industrial action if:

                     (a)  the employer or employee was or is a member of an organisation during that period; or

                     (b)  the employer was or is a constitutional corporation bound by an award, a certified agreement or an AWA during that period; or

                     (c)  the industrial action was taken, or is being taken, in connection with work regulated by an award, a certified agreement or an AWA; or

                     (d)  the industrial action was taken, or is being taken, in relation to an industrial dispute; or

                     (e)  the industrial action was or is of a kind referred to in paragraph (a), (b) or (c) of the definition of industrial action in subsection 4(1); or

                      (f)  the industrial action was taken, or is being taken, in a Territory.

Note:          For constitutional corporation, see subsection 4(1).

             (2)  An employee must not accept a payment from an employer if the employer would contravene subsection (1) by making the payment.

             (3)  A contravention of subsection (1) or (2) is not an offence.

187AB  Organisations not to take action for payments in relation to periods of industrial action

             (1)  An organisation, or an officer, member or employee of an organisation, must not:

                     (a)  make a claim for an employer to make a payment to an employee in relation to a period during which the employee engaged, or engages, in industrial action; or

                     (b)  organise or engage in, or threaten to organise or engage in, industrial action against an employer with intent to coerce the employer to make such a payment.

             (2)  For the purposes of subsection (1), action done by one of the following bodies or persons is taken to have been done by an organisation:

                     (a)  the committee of management of the organisation;

                     (b)  an officer, employee or agent of the organisation acting in that capacity;

                     (c)  a member or group of members of the organisation acting under the rules of the organisation;

                     (d)  a member of the organisation, who performs the function of dealing with an employer on behalf of the member and other members of the organisation, acting in that capacity.

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

                     (a)  a committee of management of the organisation; or

                     (b)  a person authorised by the committee; or

                     (c)  an officer of the organisation;

has taken reasonable steps to prevent the action.

             (4)  A contravention of subsection (1) is not an offence.

187AC  Applications to the Court

             (1)  An application may be made to the Court for orders under section 187AD in respect of contraventions of section 187AA or 187AB.

             (2)  The application may be made by:

                     (a)  the Minister; or

                     (b)  a person who has an interest in the matter; or

                     (c)  any other person prescribed by the regulations.

             (3)  In the case of a contravention of section 187AB, the application may also be made by the employer in question.

             (4)  A regulation prescribing persons for the purposes of paragraph (2)(c) may limit its application to specified circumstances.

187AD  Orders that the Court may make

             (1)  In respect of contraventions of section 187AA or 187AB, the Court may, if the Court considers it appropriate in all the circumstances of the case, make one or more of the following orders:

                     (a)  an order imposing on a person who contravened or is contravening that section a penalty of not more than $10,000;

                     (b)  if the person contravened or is contravening section 187AB—an order requiring the person to pay to an employer compensation of such amount as the Court thinks appropriate;

                     (c)  injunctions (including interim injunctions), and any other orders, that the Court considers necessary to stop the contravention or remedy its effects;

                     (d)  any other consequential orders.

             (2)  The Court must not make an order under paragraph (1)(b) requiring compensation to be paid to an employer who has contravened subsection 187AA(1) in connection with the contravention referred to in that paragraph.

Part IX—Registered Organisations

Division 1A—Preliminary

187A  Objects of Part

As well as the objects set out in section 3, this Part has these objects:

                     (a)  to encourage the democratic control of organisations; and

                     (b)  to encourage members of organisations to participate in the organisations’ affairs; and

                     (c)  to encourage the efficient management of organisations;

Division 1—Registration

187B  Interpretation

                   In this Division, unless the contrary intention appears:

enterprise means:

                     (a)  a business that is carried on by a single employer; or

                     (b)  an operationally distinct part of such a business; or

                     (c)  2 or more operationally distinct parts of the same business carried on by the same employer.

188  Associations capable of applying for registration

             (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;  or

                            (iii)  independent contractors who, if they were employees performing work of the kind which they usually perform as independent contractors, would be employees eligible for membership of the association;

                     (c)  an association of which some or all of the members are employees performing work in the same enterprise and the other members (if any) are:

                              (i)  officers of the association; or

                             (ii)  persons specified in Schedule 3; or

                            (iii)  independent contractors who, if they were employees performing work of the kind which they usually perform as independent contractors, would be employees eligible for membership of the association.

             (2)  Subsection (1) does not apply in relation to an association that has members referred to in subparagraph (1)(a)(ii) or (iii), (b)(ii) or (iii) or (c)(ii) or (iii) unless the association is effectively representative of the members who are employers or employees, as the case may be.

189  Criteria for registration

             (1)  A designated Presidential Member shall grant an application for registration made by an association (other than an enterprise 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; and

                    (aa)  in the case of an association of employees—the association is free from control by, or improper influence from, an employer or by an association or organisation of employers; and

                     (b)  in the case of an association of employers—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 50 employees; and

                     (c)  in the case of an association of employees—the association has at least 50 members who are employees; and

                     (d)  the designated Presidential Member is satisfied that the association would conduct its affairs in a way that meets the obligations of an organisation under this Act; and

                     (e)  the rules of the association make provision as required by this Act to be made by the rules of organisations; and

                      (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; and

                     (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; and

                     (h)  the registration of the association would further the objects of this Act; and

                      (j)  subject to subsection (2), there is no organisation to which members of the association might belong, or, if there is such an organisation, it is not an organisation:

                              (i)  to which the members of the association could more conveniently belong; and

                             (ii)  that would more effectively represent those members.

             (2)  If:

                     (a)  there is an organisation to which the members of the association might belong; and

                     (b)  the members of the association could more conveniently belong to the organisation; and

                     (c)  the organisation would more effectively represent those members than the association would;

the requirements of paragraph (1)(j) are taken to have been met if the designated Presidential Member accepts an undertaking from the association that the designated Presidential Member considers appropriate to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of the organisation and the eligibility rules of the association.

             (3)  Without limiting the matters that the designated Presidential Member may take into account in considering, under subparagraph (1)(j)(ii), the effectiveness of the representation of an organisation or association, the designated Presidential Member must take into account whether the representation would be consistent with the objects of this Act.

             (4)  A designated Presidential Member shall grant an application for registration made by an enterprise 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 paragraph 188(1)(c); and

                             (ii)  is an association for furthering or protecting the interests of its members; and

                     (b)  the association is free from control by, or improper influence from:

                              (i)  any employer, whether at the enterprise in question or otherwise; or

                             (ii)  any person or body with an interest in that enterprise; or

                            (iii)  any organisation, or any other association of employers or employees; and

                     (c)  the association has at least 50 members who are employees; and

                     (d)  the designated Presidential Member is satisfied that the association would conduct its affairs in a way that meets the obligations of an organisation under this Act; and

                     (e)  the rules of the association make provision as required by this Act to be made by the rules of organisations; and

                      (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; and

                     (g)  the designated Presidential Member is satisfied that a majority of the persons eligible to be members of the association support its registration as an organisation; and

                     (h)  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; and

                      (i)  the registration of the association would further the objects of this Act.

             (5)  In applying paragraph (1)(d) or (4)(d), the designated Presidential Member must have regard to whether any recent conduct by the association or its members would have provided grounds for an application under section 294 had the association been registered when the conduct occurred.

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

             (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.

191  Registration

             (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), such particulars in relation to the association as are prescribed and the date of the entry.

             (2)  An association shall be taken to be registered under this Act when the Industrial Registrar enters the prescribed particulars 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.

192  Incorporation

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.

Division 2—Rules of organisations

194  Organisations to have rules

             (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.

195  Rules of organisations

             (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.

          (1A)  The rules of an organisation of employees may include provision for the eligibility for membership of the organisation of independent contractors who, if they were employees performing work of the kind which they usually perform as independent contractors, would be employees eligible for membership of the organisation.

             (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).

196  General requirements for rules

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 certified agreement, 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, an order of the Commission or a certified agreement; or

                             (ii)  entering into written agreements under an award, an order of the Commission or a certified agreement; 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.

197  Rules to provide for elections for offices

             (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.

198  Rules to provide for elections by secret postal ballot

             (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)), awards and certified agreements;

                             (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.

199  Rules to provide for terms of office

             (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.

200  Rules may provide for filling of casual vacancies

             (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.

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

             (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.

202  Agreement between organisation and State union

             (1)  The rules of an organisation of employees may authorise the organisation to enter into agreements in the prescribed form with State unions to the effect that members of the State union concerned who are ineligible State members are eligible to become members of the organisation under the agreement.

             (2)  If, under rules made under subsection (1), an organisation enters into an agreement with a State union, the organisation must lodge a copy of the agreement in the Industrial Registry.

             (3)  The agreement does not come into force unless and until the Industrial Registrar enters particulars of the agreement in the register kept under paragraph 63(1)(a).

             (4)  The Industrial Registrar must not enter particulars of the agreement in that register unless he or she has been directed by a designated Presidential Member to do so.

             (5)  A designated Presidential Member must not give such a direction to the Industrial Registrar unless the Presidential Member is satisfied that the agreement:

                     (a)  is not contrary to:

                              (i)  any object of this Act; or

                             (ii)  any subsisting order made by the Commission relating to the organisation’s eligibility rules; or

                            (iii)  any subsisting agreement or understanding of which the Commission is aware that deals with the organisation’s entitlement to represent under this Act the industrial interests of a particular class or group of employees; and

                     (b)  was entered into only for the purpose of:

                              (i)  overcoming any legal or practical difficulty that might arise in connection with the participation or possible participation of ineligible State members in the administration of the organisation or in the conduct of its affairs; or

                             (ii)  encouraging and facilitating an amalgamation between the organisation and another organisation of employees.

             (6)  An organisation is not entitled to represent under this Act the industrial interests of persons who are eligible for membership of the organisation only under an agreement entered into under rules made under subsection (1).

             (7)  If 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).

             (8)  If it appears to a designated Presidential Member:

                     (a)  on his or her own initiative; or

                     (b)  on application by an interested person;

that an agreement entered into under rules made under subsection (1) may no longer be operating for a purpose mentioned in subparagraph (5)(b)(i) or (ii), the Presidential Member must give to the parties to the agreement an opportunity to make oral or written submissions as to whether the agreement is still operating for such a purpose.

             (9)  If, after considering any such submissions and, in the case of an application under paragraph (8)(b), the matters raised by the applicant, the designated Presidential Member is satisfied that the agreement is no longer operating for such a purpose, the Presidential Member may, by writing signed by him or her, terminate the agreement.

           (10)  The Industrial Registrar must as soon as practicable:

                     (a)  give notice of the termination to each party to the agreement; and

                     (b)  enter particulars of the termination in the register kept under paragraph 63(1)(a).

           (11)  If an organisation and a State union agree, in writing, to terminate an agreement entered into under rules made under subsection (1):

                     (a)  the organisation must lodge in the Industrial Registry a copy of the agreement to terminate; and

                     (b)  the Industrial Registrar must as soon as practicable enter particulars of the termination in the register kept under paragraph 63(1)(a).

           (12)  The termination of an agreement takes effect when particulars of the termination are entered in the register as mentioned in paragraph (10)(b) or (11)(b) and, when the termination 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 (7)) cease to be members of the organisation.

           (13)  In this section:

ineligible State members, in relation to an organisation, means the members of a State union who, under the eligibility rules of the organisation, are not eligible to be members of the organisation;

State Act means:

                     (a)  the Industrial Relations Act 1991 of New South Wales; or

                     (b)  the Industrial Relations Act 1990 of Queensland; or

                     (c)  the Industrial Relations Act 1979 of Western Australia; or

                     (d)  the Industrial Relations Act (S.A.) 1972  of South Australia;

State union, in relation to an organisation, means:

                     (a)  an industrial union or association which is registered under a State Act; or

                     (b)  an industrial union or association in Victoria or Tasmania which is neither registered under this Act nor part of an organisation registered under this Act;

and which is composed substantially of persons who, under the eligibility rules of the organisation, are eligible to be members of the organisation.

203  Industrial Registrar may determine alterations of rules

             (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.

203A  Designated Presidential Member may determine alteration of rules where there has been a breach of an undertaking

             (1)  If:

                     (a)  in the course of an organisation being registered under section 189, an undertaking was given under subsection 189(2) to avoid demarcation disputes that might otherwise arise from an overlap between its eligibility rules and the eligibility rules of another organisation; and

                     (b)  the first‑mentioned organisation has breached the undertaking;

a designated Presidential Member may, by instrument, determine such alterations of the rules of the organisation as are, in the Presidential Member’s opinion, necessary to remove the overlap.

             (2)  The designated Presidential Member must give the organisation and the other organisation an opportunity, as prescribed, to be heard on the matter.

             (3)  Alterations determined under subsection (1) take effect on the date of the instrument.

204  Change of name or alteration of eligibility rules of organisation

             (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:

                     (a)  to which those persons might more conveniently belong; and

                     (b)  that would more effectively represent those members.

             (5)  However, subsection (4) does not apply if the designated Presidential Member accepts an undertaking from the organisation seeking the alteration that the designated Presidential Member considers appropriate to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of that organisation and the eligibility rules of the other organisation.

          (6A)  A designated Presidential Member may refuse to consent to an alteration of the eligibility rules of an organisation if satisfied that the alteration would contravene an agreement or understanding to which the organisation is a party and that deals with the organisation’s right to represent under this Act the industrial interests of a particular class or group of persons.

          (6B)  A designated Presidential Member may also refuse to consent to an alteration of the eligibility rules of an organisation if he or she:

                     (a)  is satisfied that the alteration would change the effect of any order made by the Commission under section 118A about the right of the organisation to represent under this Act the industrial interests of a particular class or group of employees; and

                     (b)  considers that such a change would give rise to a serious risk of a demarcation dispute which would prevent, obstruct or restrict the performance of work in an industry, or harm the business of an employer.

          (6C)  Subsections (6A) and (6B) do not limit the grounds on which a Presidential Member may refuse to consent to an alteration of the eligibility rules of an organisation.

             (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 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.

205  Alteration of other rules of organisation

             (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, awards and certified agreements;

                     (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.

206  Certain alterations of rules to be recorded

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.

207  Evidence of rules

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 3—Validity and performance of rules

208  Rules contravening section 196

             (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.

209  Directions for performance of rules

             (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 4—Conduct of elections for office

210  Conduct by Australian Electoral Commission

             (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 in relation to elections in the organisation or branch or an election for the particular office.

211  Application for organisation or branch to conduct its elections

             (1)  A committee of management of an organisation or branch of an organisation may lodge in an 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, or an election for a particular office, 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.

212  Objections to application to conduct elections

             (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.

213  Registrar may permit organisation or branch to conduct its elections

             (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, or the election for the particular office, as the case may be, 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 or election an adequate opportunity of voting without intimidation;

                            the Registrar may exempt the organisation or branch from subsection 210(1) in relation to elections for the organisation or branch, or the election for the particular office, as the case may be.

             (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.

214  Registrar to arrange for conduct of elections

             (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.

215  Provisions applicable to elections conducted by Australian Electoral Commission

             (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.

216  Death of candidate

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.

217  Ballot papers etc. to be preserved

             (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

218  Application for inquiry

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.

219  Instituting of inquiry

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.

220  Court may authorise Industrial Registrar to take certain action

             (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.

221  Interim orders

             (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.

222  Procedure at hearing

             (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.

223  Action by Court

             (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.

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

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.

225  Enforcement of orders

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.

226  Validity of certain acts etc. where election declared void

             (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 6—Disqualification from office

227  Interpretation

             (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.

228  Certain persons disqualified from holding office in organisations

             (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.

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

             (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.

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

             (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.

231  Court to have regard to certain matters

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.

232  Action by Court

             (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

Subdivision A—General

234  Interpretation

In this Division:

alternative provision means a provision of the kind mentioned in subsection 239(1);

amalgamated organisation, in relation to a completed amalgamation, means the organisation of which members of the de-registered  organisations have become members under paragraph 253Q(3)(d);

amalgamation day, in relation to a completed amalgamation, means the day fixed under subsection 253Q(2) in relation to the amalgamation;

asset means property of any kind, and includes:

                     (a)  any legal or equitable estate or interest (whether present or future, vested or contingent, tangible or intangible) in real or personal property of any description; and

                     (b)  any chose in action; and

                     (c)  any right, interest or claim of any kind in or in relation to property (whether arising under an instrument or otherwise, and whether liquidated or unliquidated, certain or contingent, accrued or accruing);

authorised person, in relation to a completed amalgamation, means the secretary of the amalgamated organisation or a person authorised, in writing, by the committee of management of the amalgamated organisation;

charge means a charge created in any way, and includes a mortgage and an agreement to give or execute a charge or mortgage (whether on demand or otherwise);

closing day, in relation to a ballot for a proposed amalgamation, means the day, from time to time, fixed under section 253B as the closing day of the ballot;

commencing day, in relation to a ballot for a proposed amalgamation, means the day, from time to time, fixed under section 253B as the commencing day of the ballot;

completed amalgamation means a proposed amalgamation that has taken effect;

debenture has the same meaning as in Division 7 of Part IV of the Companies Act 1981;

defect includes a nullity, omission, error or irregularity;

de-registered organisation, in relation to a completed amalgamation, means an organisation that has been de-registered under this Division;

de-registration, in relation to an organisation, means the cancellation of its registration;

holder, in relation to a charge, includes a person in whose favour a charge is to be given or executed (whether on demand or otherwise) under an agreement;

instrument means an instrument of any kind, and includes:

                     (a)  any contract, deed, undertaking or agreement; and

                     (b)  any mandate, instruction, notice, authority or order; and

                     (c)  any lease, licence, transfer, conveyance or other assurance; and

                     (d)  any guarantee, bond, power of attorney, bill of lading, negotiable instrument or order for the payment of money; and

                     (e)  any mortgage, charge, lien or security;

whether express or implied and whether made or given orally or in writing;

instrument to which this Division applies, in relation to a completed  amalgamation, means an instrument:

                     (a)  to which a de-registered organisation is a party; or

                     (b)  that was given to, by or in favour of a de-registered organisation; or

                     (c)  in which a reference is made to a de-registered organisation; or

                     (d)  under which any money is or may become payable, or any other property is to be, or may become liable to be, transferred, conveyed or assigned, to or by a de-registered organisation;

interest:

                     (a)  in relation to a company—includes a prescribed interest made available by the company within the meaning of the Companies Act 1981; and

                     (b)  in relation to land—means:

                              (i)  a legal or equitable estate or interest in the land; or

                             (ii)  a right, power or privilege over, or in relation to, the land;

invalidity includes a defect;

irregularity includes a breach of the rules of an organisation, but in Subdivision G does not include an irregularity in relation to a ballot;

liability means a liability of any kind, and includes an obligation of any kind (whether arising under an instrument or otherwise, and whether liquidated or unliquidated, certain or contingent, accrued or accruing);

proceeding to which this Division applies, in relation to a completed  amalgamation, means a proceeding to which  a de-registered organisation was a party immediately before the amalgamation day;

proposed alternative amalgamation, in relation to a proposed amalgamation, 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 under this Division;

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 under this Division; and

                     (b)  members of the organisatio