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Workplace Relations Act 1996

  • - C2005C00488
  • In force - Superseded Version
  • View Series
Act No. 86 of 1988 as amended, taking into account amendments up to Act No. 100 of 2005
An Act relating to workplace relations, and for other purposes
Administered by: Attorney-General's; DEWR
Registered 25 Jul 2005
Start Date 22 Feb 2005
End Date 11 Sep 2005

Workplace Relations Act 1996

Act No. 86 of 1988 as amended

This compilation was prepared on 19 July 2005
taking into account amendments up to Act No. 100 of 2005

Volume 1 includes        Table of Contents
                                    Sections 1 – 187AD

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

Volume 2 includes:       Sections 285A – 549
                                    Schedules 1A, 1B, 1, 2, 10, 12 and 14
                                    Note 1
                                    Table of Acts
                                    Act Notes
                                    Table of Amendments
                                    Table A

Prepared by the Office of Legislative Drafting and Publishing,
Attorney-General’s Department, Canberra

 

 

 


Contents

Part 1—Preliminary                                                                                                               1

1............ Short title [see Note 1]....................................................................... 1

2............ Commencement [see Note 1].............................................................. 1

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

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

4A......... Schedule 1B...................................................................................... 14

5............ Additional operation of Act............................................................. 14

5AA...... Additional operation of Act—certified agreements.......................... 16

6............ Act binds Crown.............................................................................. 17

7............ Extension to Christmas Island.......................................................... 17

7A......... Act not to apply so as to exceed Commonwealth power................ 18

7B......... Application of Criminal Code.......................................................... 19

Part II—Australian Industrial Relations Commission                                     20

Division 1—Establishment of Commission                                                     20

8............ Establishment of Commission.......................................................... 20

8A......... Functions of Commission................................................................. 20

9............ Appointment of Commission members etc...................................... 20

10.......... Qualifications for appointment........................................................ 21

11.......... Seniority........................................................................................... 22

12.......... Performance of duties on part-time basis......................................... 22

13.......... Dual federal and State appointments................................................ 23

14.......... Performance of duties by dual federal and State appointees............ 24

15.......... Dual federal appointments............................................................... 24

15A....... Appointment of a Judge as President not to affect tenure etc......... 24

16.......... Tenure of Commission members...................................................... 25

17.......... Acting President............................................................................... 25

17A....... Acting Vice President....................................................................... 26

17B....... Acting Senior Deputy President....................................................... 26

18.......... Acting Deputy Presidents................................................................ 27

19.......... Oath or affirmation of office............................................................. 27

19A....... Discharge of Commission’s business............................................... 28

20.......... Duty of Commission members......................................................... 28

21.......... Remuneration and allowances of Presidential Members etc............. 28

22.......... Application of Judges’ Pensions Act............................................... 30

23.......... Remuneration and allowances of Commissioners............................. 31

24.......... Removal of Presidential Member from office................................... 32

25.......... Outside employment of Commissioner............................................ 32

26.......... Leave of absence of Commissioner................................................... 32

27.......... Disclosure of interest by Commission members.............................. 33

28.......... Termination of appointment of Commissioner................................ 34

29.......... Resignation by Commission member............................................... 34

Division 2—Organisation of Commission                                                        35

30.......... Manner in which Commission may be constituted.......................... 35

31.......... Powers exercisable by single member of Commission...................... 35

32.......... Functions and powers conferred on members.................................. 35

33.......... Powers may be exercised of Commission’s own motion or on application            36

34.......... Continuation of hearing by Commission.......................................... 36

35.......... Commission divided in opinion........................................................ 37

36.......... Arrangement of business of Commission......................................... 37

37.......... Panels of Commission for particular industries................................ 38

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

40.......... Delegation by President.................................................................... 39

41.......... Protection of Commission members................................................. 39

Division 3—Representation and intervention                                               40

42.......... Representation of parties before Commission................................. 40

43.......... Intervention generally....................................................................... 41

44.......... Particular rights of intervention of Minister..................................... 42

Division 4—Appeals to Full Bench and references to Court                43

45.......... Appeals to Full Bench relating to matters arising other than under the Registration and Accountability of Organisations Schedule..................................................................... 43

45A....... Appeals to Full Bench relating to matters arising under the Registration and Accountability of Organisations Schedule etc..................................................................................................... 46

46.......... References to Court by Commission on question of law................. 48

Division 5—Miscellaneous                                                                                      50

47.......... Seals of Commission......................................................................... 50

48.......... Rules of Commission........................................................................ 50

48A....... President must provide certain information etc. to the Minister..... 51

49.......... Annual report of Commission.......................................................... 52

Part IV—Australian Industrial Registry                                                                  53

Division 1A—Interpretation                                                                                   53

61A....... Definition of State industrial body.................................................... 53

Division 1—Establishment and functions of Australian Industrial Registry       54

62.......... Australian Industrial Registry.......................................................... 54

63.......... Functions of the Industrial Registry................................................. 54

64.......... Registries.......................................................................................... 56

65.......... Seals of the Registry......................................................................... 56

66.......... Annual report of Industrial Registry................................................ 56

Division 2—Registrars                                                                                              57

67.......... Industrial Registrar........................................................................... 57

68.......... Tenure of office of Industrial Registrar............................................ 58

69.......... Remuneration and allowances of Industrial Registrar....................... 59

70.......... Outside employment of Industrial Registrar.................................... 59

71.......... Disclosure of interests by Industrial Registrar................................. 59

72.......... Leave of absence of Industrial Registrar........................................... 59

73.......... Resignation by Industrial Registrar.................................................. 60

74.......... Termination of appointment of Industrial Registrar........................ 60

75.......... Deputy Industrial Registrars............................................................ 60

76.......... Acting Industrial Registrar................................................................ 62

77.......... Acting Deputy Industrial Registrars................................................ 62

78.......... Oath or affirmation of office of Registrar........................................ 63

Division 3—References and appeals                                                                  64

79.......... References by Registrar to Commission........................................... 64

80.......... Removal of matters before Registrar................................................ 64

81.......... Appeals from Registrar to Commission........................................... 64

82.......... References to Court by Registrar on question of law....................... 65

Division 4—Staff                                                                                                            67

83.......... Staff.................................................................................................. 67

Part IVA—The Employment Advocate                                                                    68

Division 1—Functions, powers etc. of the Employment Advocate    68

83BA.... The Employment Advocate............................................................. 68

83BB..... Functions.......................................................................................... 68

83BC..... Minister’s directions to Employment Advocate.............................. 69

83BD.... Staff.................................................................................................. 69

83BE..... Delegation by Employment Advocate............................................. 69

83BF..... Annual report................................................................................... 70

Division 2—Authorised officers                                                                            71

83BG.... Appointment of authorised officers................................................. 71

83BH.... Powers of authorised officers........................................................... 71

Division 3—Appointment, conditions of appointment etc. of Employment Advocate   74

83BI...... Appointment of Employment Advocate......................................... 74

83BJ...... Remuneration and allowances........................................................... 74

83BK.... Outside employment........................................................................ 74

83BL..... Recreation leave etc.......................................................................... 74

83BM... Resignation....................................................................................... 75

83BN.... Disclosure of interests...................................................................... 75

83BO.... Termination of appointment............................................................ 75

83BP..... Acting appointment.......................................................................... 76

83BQ.... Other terms and conditions of appointment.................................... 77

Division 4—Miscellaneous                                                                                      78

83BS..... Identity of AWA parties not to be disclosed................................... 78

83BT..... Publication of AWAs etc. by Employment Advocate..................... 79

Part V—Inspectors                                                                                                               80

84.......... Inspectors......................................................................................... 80

85.......... Identity cards.................................................................................... 80

86.......... Powers of inspectors........................................................................ 81

87.......... Inspector to investigate matters affecting safety of employees....... 83

88.......... Annual report................................................................................... 84

Part VA—Compliance etc. powers                                                                              85

88AA.... Secretary’s powers to obtain information etc.................................. 85

88AB.... Certain excuses not available in relation to section 88AA requirements 88

88AC.... Protection from liability................................................................... 88

88AD.... Retention and copying etc. of documents........................................ 89

88AE..... Secretary or assistant may make and keep copies of documents..... 90

88AF..... Protection of confidentiality of information..................................... 90

88AG.... Delegation by Secretary.................................................................... 93

88AGA. Guidelines for the exercise or performance of powers or functions. 93

88AH.... Relationship with other provisions about authorised officers and inspectors        94

88AI...... Annual review by Ombudsman of exercise of section 88AA power 95

Part VI—Dispute prevention and settlement                                                        96

Division 1A—Objects of Part                                                                                 96

88A....... Objects of Part.................................................................................. 96

Division 1—Functions of Commission generally                                         97

88B....... Performance of Commission’s functions under this Part................. 97

89.......... General functions of Commission.................................................... 98

89A....... Scope of industrial disputes............................................................. 98

89B....... Review of certain awards................................................................ 101

90.......... Commission to take into account the public interest..................... 102

90A....... Commission to have regard to operation of Superannuation Guarantee legislation when making National Wage Case decision........................................................................................... 102

91.......... Commission to encourage agreement on procedures for preventing and settling disputes      102

92.......... Commission to have regard to compliance with disputes procedures 103

93.......... Commission to take account of Racial Discrimination Act, Sex Discrimination Act, Disability Discrimination Act and Age Discrimination Act.................................................................. 103

93A....... Commission to take account of Family Responsibilities Convention 103

94.......... Limitation on powers of Commission relating to discrimination and preference    103

95.......... No automatic flow-on of terms of certain agreements.................... 104

96.......... Schemes of apprenticeship............................................................. 104

97.......... Safety, health and welfare of employees........................................ 104

98.......... Commission to act quickly............................................................. 104

98A....... Commission to avoid technicalities and facilitate fair conduct of proceedings        104

Division 2—Powers and procedures of Commission for dealing with industrial disputes           105

99.......... Notification of industrial disputes.................................................. 105

100........ Disputes to be dealt with by conciliation where possible.............. 105

101........ Findings as to industrial disputes................................................... 106

102........ Action to be taken where dispute referred for conciliation............ 106

103........ Completion of conciliation proceeding........................................... 107

104........ Arbitration...................................................................................... 107

105........ Exercise of arbitration powers by member who has exercised conciliation powers                108

106........ Allowable award matters to be dealt with by Full Bench.............. 109

107........ Reference of disputes to Full Bench............................................... 109

108........ President may deal with certain proceedings.................................. 112

109........ Review on application by Minister................................................ 113

110........ Procedure of Commission............................................................... 114

Division 3—Particular powers of Commission                                            116

111........ Particular powers of Commission.................................................. 116

111AAA Commission to cease dealing with industrial dispute in certain circumstances       118

111AA.. Recommendations by consent........................................................ 119

111A..... Hearings in relation to discriminatory awards................................ 120

113........ Power to set aside or vary awards.................................................. 120

113A..... Commission to include enterprise flexibility provisions in awards 122

113B..... Variation of award to give effect to agreement negotiated under enterprise flexibility provision            122

114........ Power to make further awards in settlement of industrial dispute etc. 123

119........ Compulsory conferences................................................................ 123

120........ Relief not limited to claim............................................................... 124

120A..... Orders of Commission on exceptional matters............................... 124

120B..... Commission to report on junior rates of pay................................. 125

121........ Power to override certain laws affecting public sector employment 125

123........ Power to provide special rates of wages........................................ 126

124........ Commission not to deal with claims for payments in relation to periods of industrial action                126

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

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

127AA.. Awards and orders dealing with rights of entry............................. 129

127A..... Unfair contracts with independent contractors: Court’s powers... 129

127B..... Court may make orders about unfair contracts.............................. 130

127C..... Application of sections 127A and 127B........................................ 131

128........ State authorities may be restrained from dealing with disputes..... 132

129........ Joint sessions of Commission........................................................ 132

130........ Reference of industrial dispute to local industrial board for report 133

131........ Boards of reference......................................................................... 133

132........ Discussions about conciliation and arbitration processes.............. 133

133........ Industry consultative councils........................................................ 134

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

Division 4—Ballots ordered by Commission                                               136

135........ Commission may order secret ballot.............................................. 136

136........ Application by members of organisation for secret ballot............. 137

137........ Scope of directions for secret ballots.............................................. 141

138........ Conduct of ballot............................................................................ 141

139........ Commission to have regard to result of ballot................................ 142

140........ Certain members not required to obey directions of organisation.. 142

Division 5—Common rules                                                                                   144

141........ Common rules................................................................................. 144

141A..... Reference of application for declaration to Full Bench.................. 146

141B..... Intervention by Minister of Victoria.............................................. 148

142........ Variation of common rules.............................................................. 148

142A..... Applying single common rule to a business of employer.............. 149

142B..... Application of section 109 to declarations under this Division..... 150

142C..... Common rule taken to be award..................................................... 150

Division 6—Awards of Commission                                                                 151

143........ Making and publication of awards etc............................................ 151

144........ Form of awards............................................................................... 155

145........ Date of awards................................................................................ 155

146........ Commencement of awards.............................................................. 155

147........ Term of awards............................................................................... 155

148........ Continuation of awards.................................................................. 155

149........ Persons bound by awards............................................................... 156

150........ Awards of Commission are final.................................................... 156

151........ Registrar to review operation of awards......................................... 157

152........ Awards to prevail over State laws and State awards...................... 157

153........ Validity of State laws and State awards......................................... 159

154........ Reprints of awards as varied.......................................................... 159

155........ Expressions used in awards............................................................ 159

Division 7—Disputes relating to boycotts                                                     160

156........ Application of Division.................................................................. 160

157........ Notification of disputes.................................................................. 160

158........ Powers of Commission................................................................... 160

159........ Exercise of powers.......................................................................... 161

160........ Parties............................................................................................. 161

161........ Application of other provisions of Act.......................................... 162

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

163........ Interpretation.................................................................................. 162

166A..... Restriction on certain actions in tort.............................................. 162

Part VIA—Minimum entitlements of employees                                              165

Division 2—Equal remuneration for work of equal value                     165

170BA.. Object............................................................................................. 165

170BB... Equal remuneration for work of equal value................................... 165

170BC... Orders requiring equal remuneration............................................... 165

170BD.. Orders only on application............................................................. 166

170BE... No order if adequate alternative remedy exists............................... 166

170BF... Immediate or progressive introduction of equal remuneration....... 167

170BG.. Employer not to reduce remuneration............................................ 167

170BH.. Division not to limit other rights.................................................... 167

170BHA.......................................................... Applications under this Division  167

170BI.... Additional effect of Division.......................................................... 168

Division 3—Termination of employment                                                       170

Subdivision A—Object, application and definitions                                          170

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

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

170CBA Exclusions....................................................................................... 172

170CC... Regulations may provide for additional exclusions........................ 175

170CCA People’s rights, liabilities and obligations the same as if certain provisions of the regulations had been valid       175

170CD.. Definitions...................................................................................... 176

Subdivision B—Application to Commission for relief in respect of termination of employment     179

170CE... Application to Commission to deal with termination under this Subdivision         179

170CEAAFees for lodging applications under section 170CE...................... 181

170CEA Motions for dismissal of application for want of jurisdiction....... 183

170CF... Conciliation..................................................................................... 184

170CFA Elections to proceed to arbitration or to begin court proceedings.. 185

170CG.. Arbitration...................................................................................... 187

170CH.. Remedies on arbitration.................................................................. 188

170CI.... Orders made on arbitration are binding........................................... 190

170CIA. Representatives to disclose contingency fee agreements................ 191

170CIB. Commission may dismiss application if applicant fails to attend.. 192

170CJ.... Commission may order payment of costs...................................... 192

Subdivision C—Unlawful termination of employment by employer               194

170CK.. Employment not to be terminated on certain grounds................... 194

170CL... Employer to notify CES of proposed terminations in certain cases 197

170CM. Employer to give notice of termination.......................................... 197

170CN.. Employer not to contravene Commission order about employment termination   199

170CO.. Contravention of this Subdivision not an offence.......................... 199

170CP... Application to courts in relation to alleged contravention of section 170CK, 170CL, 170CM or 170CN             199

170CQ.. Proof of issues in relation to alleged contravention of section 170CK 200

170CR... Orders available to courts............................................................... 201

170CS... Costs............................................................................................... 202

170CT... Small claims procedure................................................................... 203

Subdivision D—Commission orders giving effect to Articles 12 and 13 of Convention    203

170FA... Employment termination orders creating rules of general application 203

170FB... Orders only on application............................................................. 203

170FC... No order if alternative exists........................................................... 203

170FD... Powers and procedures of Commission for dealing with applications 204

170FE... Commission’s powers not limited by Subdivision E..................... 204

Subdivision E—Commission orders after employer fails to consult trade union about terminations             204

170GA.. Orders by Commission where employer fails to consult trade union about terminations      204

170GB.. Orders only on application............................................................. 205

170GC.. No order if alternative remedy exists.............................................. 205

170GD.. Powers and procedures of Commission for dealing with applications 206

Subdivision F—Other rights relating to termination of employment           206

170HA.. Division not to limit other rights.................................................... 206

170HB.. Applications alleging harsh, unjust or unreasonable termination... 206

170HBA No second applications under section 170CE concerning same termination to be made         207

170HC.. Applications alleging contravention of section 170CK.................. 208

Subdivision G—Unmeritorious or speculative proceedings                            208

170HD.. Definitions...................................................................................... 208

170HE... Advisers not to encourage applicants to make, or to pursue, certain applications 209

170HF... Applications to the Court.............................................................. 209

170HH.. Evidentiary matters........................................................................ 210

170HI.... Order that the Court may make...................................................... 210

Division 4—Orders and proceedings                                                               212

170JA... Orders to be in writing.................................................................... 212

170JB.... When orders take effect.................................................................. 212

170JC.... Compliance with orders.................................................................. 212

170JD... Variation and revocation of orders.................................................. 212

170JE.... Application of sections 109, 110, 111, 128 and 129 to orders and proceedings under this Part            213

170JEA. Representation of employers......................................................... 213

170JEB. Reference of applications to Full Bench......................................... 213

170JEC. President may deal with certain applications................................. 215

170JF.... Appeals to Full Bench.................................................................... 216

170JG... Inconsistency with awards or other orders of Commission........... 216

170JH... Validity of State laws, awards etc.................................................. 216

Division 5—Parental leave                                                                                    217

170KA.. Effect of Division........................................................................... 217

170KB.. Application of Schedule 14............................................................ 218

170KC.. Regulations may prescribe adoption leave..................................... 218

Part VIB—Certified agreements                                                                               219

Division 1—Preliminary                                                                                          219

170L...... Object............................................................................................. 219

170LA... Functions of Commission............................................................... 219

170LB... Single business and single employer............................................... 219

170LC... Additional operation of Part........................................................... 220

170LD... Nominal expiry date....................................................................... 221

170LE... Valid majority................................................................................. 221

170LF... Working day................................................................................... 222

170LG... Paid rates award.............................................................................. 222

Division 2—Making agreements with constitutional corporations or the Commonwealth         223

170LH... What this Division covers.............................................................. 223

170LI.... Nature of agreement........................................................................ 223

170LJ.... Agreement with organisations of employees.................................. 223

170LK... Agreement with employees............................................................ 224

170LKA Certificate as to requested representation or invitation.................. 225

170LL... Greenfields agreement..................................................................... 226

170LM.. Making the application for certification......................................... 226

Division 3—Making agreements about industrial disputes and industrial situations    227

170LN... What this Division covers.............................................................. 227

170LO... Agreement about industrial dispute................................................ 227

170LP... Agreement about industrial situation.............................................. 227

170LQ... Multiple disputes and situations.................................................... 227

170LR... Approval by valid majority of employees..................................... 228

170LS.... Making the application for certification......................................... 228

Division 4—Certifying agreements                                                                   229

170LT... Certifying an agreement.................................................................. 229

170LU... When Commission to refuse to certify an agreement..................... 230

170LV... Other options open to Commission instead of refusing to certify an agreement    232

170LW.. Procedures for preventing and settling disputes............................. 233

Division 5—Effect of certified agreements                                                   234

170LX... When a certified agreement is in operation..................................... 234

170LY... Effect of a certified agreement in relation to awards and other certified agreements               235

170LZ... Effect of a certified agreement on Commonwealth laws or State laws, awards or agreements                235

Division 6—Persons bound by certified agreements                              237

170M.... Persons bound in Division 2 cases................................................. 237

170MA. Persons bound in Division 3 cases................................................. 237

170MB. Successor employers bound........................................................... 238

170MBACommission may make order about extent to which
successor employer bound by certified agreement......................... 239

Division 7—Extending, varying or terminating certified agreements 244

170MC. Extending the nominal expiry date.................................................. 244

170MD. Varying a certified agreement.......................................................... 244

170MDAVariation where discrimination between unionists and
non-unionists.................................................................................. 246

170ME.. Other options open to Commission instead of refusing to approve variation of an agreement              246

170MG. Terminating a certified agreement where valid majority approve at any time         247

170MH. Terminating a certified agreement in public interest after nominal expiry date       247

170MHATerminating an agreement in a way provided under
agreement after nominal expiry date............................................... 248

Division 8—Negotiations for certified agreements etc.                         249

170MI... Initiation of bargaining period......................................................... 249

170MJ.. Particulars to accompany notice..................................................... 250

170MK. When bargaining period begins....................................................... 250

170ML.. Protected action.............................................................................. 250

170MM Industrial action must not involve secondary boycott................... 252

170MN. Industrial action etc. must not be taken until after nominal expiry date of certain agreements and awards            252

170MO. Notice of action to be given............................................................ 253

170MP.. Negotiation must precede industrial action or lockout................... 255

170MQ. What happens if Commission orders a ballot................................. 256

170MR. Industrial action must be duly authorised...................................... 256

170MS.. What happens if application to certify agreement is not made within 21 days      257

170MT. Immunity provisions...................................................................... 257

170MU. Employer not to dismiss employee etc. for engaging in protected action               258

170MV. When bargaining period ends.......................................................... 259

170MW Power of Commission to suspend or terminate bargaining period. 259

170MWAPower of Commission in relation to new bargaining periods........ 262

170MX. What happens if Commission terminates a bargaining period under subsection 170MW(3) or (7)        263

170MY. Commission’s powers where section 170MX applies.................. 264

170MZ. Awards under section 170MX....................................................... 264

170N..... Commission not to arbitrate during bargaining period.................... 266

170NA.. Conciliation in respect of agreements............................................. 266

170NB.. Employers not to discriminate between unionist and non-unionist 266

Division 9—Prohibition of coercion in relation to agreements          268

170NC.. Coercion of persons to make, vary or terminate certified agreements etc.              268

Division 10—Enforcement and remedies                                                      269

170ND.. Penalty provisions.......................................................................... 269

170NE... Eligible court................................................................................... 269

170NF... Penalties for contravening penalty provisions............................... 269

170NG.. Injunctions...................................................................................... 271

170NH.. Reinstatement and compensation where employer contravenes section 170MU   271

Division 10A—Validation of certain pre-2 September 2004 agreements, variations, industrial action and lockouts                                                                                                 272

170NHA.................................................... Validation etc. of certain agreements  272

170NHB................................ Validation etc. of variations of certain agreements  272

170NHBAValidation of certain industrial action and lockouts..................... 273

170NHC............................................................. Definitions of permitted matter  273

Division 11—Miscellaneous                                                                                 275

170NI.... Complementary State laws............................................................. 275

Part VID—Australian workplace agreements (AWAs)                                276

Division 1—Preliminary                                                                                          276

170VA.. Interpretation.................................................................................. 276

170VB... Proposed AWAs and ancillary documents—interpretation........... 278

170VC... Scope of this Part........................................................................... 278

170VCA Functions of Commission............................................................... 279

Division 2—General rules about AWAs and ancillary documents   280

170VD.. AWAs and ancillary documents only have effect as provided by this Part            280

170VE... Collective agreements..................................................................... 280

Division 3—Making, varying or terminating an AWA                            281

170VF... Employer and employee may make an AWA................................ 281

170VG.. Content of AWA............................................................................ 281

170VH.. Nominal expiry date of AWA........................................................ 281

170VJ.... Period of operation of AWA.......................................................... 282

170VK.. Bargaining agents............................................................................ 282

170VL... Varying the terms of an AWA........................................................ 283

170VM. Terminating an AWA..................................................................... 283

Division 4—Filing AWAs and ancillary documents with Employment Advocate             285

170VN.. Filing AWAs and ancillary documents with Employment Advocate 285

170VO.. Filing requirements......................................................................... 285

170VP... Employer’s declaration must be accurate....................................... 287

Division 5—Approval of AWAs and ancillary documents                     288

Subdivision A—Preliminary                                                                                 288

170VPA Additional approval requirements for AWA and ancillary documents 288

Subdivision B—Approval by Employment Advocate                                          289

170VPB Approval of AWA by Employment Advocate.............................. 289

170VPC Approval of variation agreement by Employment Advocate........ 290

170VPD Approval of other ancillary documents by Employment Advocate 291

170VPE. Protocol for referring AWAs and variation agreements to the Commission            291

170VPF. Employment Advocate must issue approval, refusal or referral notice.. 291

Subdivision C—Approval by Commission                                                           292

170VPFAWithdrawal of AWA or variation agreement................................. 292

170VPG Approval of AWA by Commission............................................... 292

170VPH Approval of variation agreement by Commission.......................... 293

170VPI.. Commission must issue approval or refusal notice etc.................. 293

Subdivision D—Miscellaneous                                                                             294

170VPJ. Undertakings deemed to be included in AWA................................ 294

170VPK Employment Advocate to issue copies of approved AWAs and ancillary documents           294

Division 6—Effect of an AWA                                                                              295

170VQ.. Effect of AWA on awards and agreements..................................... 295

170VR... Effect of AWA on other laws......................................................... 296

170VS... AWA binds employer’s successor................................................. 297

170VT... Parties must not breach AWA........................................................ 297

170VU.. Industrial action etc. by party to AWA......................................... 297

Division 7—Enforcement and remedies                                                         299

170VV... Penalties for contravening this Part................................................ 299

170VW.. Damages for breach of AWA.......................................................... 299

170VX.. Compensation to new employee for shortfall in entitlements....... 299

170VZ... Injunctions...................................................................................... 300

170W.... Interest on judgment etc................................................................. 300

170WA. Small claims procedure................................................................... 300

Division 8—Limited immunity for industrial action                                  301

170WB.. Interpretation.................................................................................. 301

170WC.. Limited immunity conferred........................................................... 302

170WD. Immunity conditional on giving notice........................................... 302

170WE.. Employer not to dismiss, prejudice etc. an employee for taking AWA industrial action       303

Division 8A—Validation of certain AWAs and variation agreements made before 2 September 2004                                                                                                                    304

170WEA........................................................... Validation etc. of certain AWAs  304

170WEB...................................... Validation etc. of certain variation agreements  304

Division 9—Miscellaneous                                                                                    306

170WF.. Hindering AWA negotiations......................................................... 306

170WG. Persons must not apply duress or make false statements in connection with AWA etc.       306

170WH. Employer must give copies of documents to employee................. 306

170WHAIntervention not permitted............................................................. 307

170WHBIdentity of AWA parties not to be disclosed................................. 307

170WHCIndustrial Registrar not to publish AWA determinations.............. 308

170WHDHearings to be in private................................................................ 308

170WI... Evidence.......................................................................................... 308

170WJ... Signature on behalf of body corporate............................................ 309

170WK. AWAs with Commonwealth employees........................................ 309

170WKAComplementary State laws............................................................ 309

170WL.. Regulations..................................................................................... 310

Part VIE—No-disadvantage test                                                                               311

170X..... Interpretation.................................................................................. 311

170XA.. When does an agreement pass the no-disadvantage test?............... 312

170XB.. Special case—employee eligible for the Supported Wage System. 312

170XC.. Special case—employee undertaking approved traineeship........... 313

170XD.. Special case—employee undertaking approved apprenticeship.... 313

170XE... Determination of designated award or awards for the purposes of an AWA          314

170XF... Determination of designated award or awards for the purposes of a certified agreement       315

Part VII—Co-operation with the States                                                                 316

171........ Co-operation with States by President.......................................... 316

172........ Co-operation with States by Industrial Registrar........................... 316

173........ Member of Commission may exercise powers under prescribed State laws           316

174........ Reference of dispute (other than demarcation dispute) to State authority for determination 317

174A..... Reference of demarcation dispute to State authority for determination  318

175........ Joint proceedings............................................................................ 320

176........ Conference with State authorities................................................... 321

Part VIII—Compliance                                                                                                    322

Division 1—Penalties and other remedies for contravention of awards and orders       322

177A..... Definition of court of competent jurisdiction.................................. 322

178........ Imposition and recovery of penalties............................................. 322

179........ Recovery of wages etc.................................................................... 325

179A..... Interest up to judgment.................................................................. 326

179B..... Interest on judgment....................................................................... 326

179C..... Plaintiffs may choose small claims procedure in magistrates’ courts 327

179D..... Small claims procedure................................................................... 327

180........ Unclaimed moneys......................................................................... 328

Division 3—Cancellation and suspension of awards and orders       329

187........ Cancellation and suspension of awards and orders........................ 329

Part VIIIA—Payments in relation to periods of industrial action           331

187AA.. Payments not to be made or accepted in relation to periods of industrial action    331

187AB.. Organisations not to take action for payments in relation to periods of industrial action      332

187AC.. Applications to the Court.............................................................. 332

187AD.. Orders that the Court may make.................................................... 333


An Act relating to workplace relations, and for other purposes

  

Part 1Preliminary

  

1  Short title [see Note 1]

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

2  Commencement [see Note 1]

                   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

                    (aa)  protecting the competitive position of young people in the labour market, promoting youth employment, youth skills and community standards and assisting in reducing youth unemployment; 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

                     (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:

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.

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.

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.

contingency fee agreement means an agreement between a legal practitioner and a person under which:

                     (a)  the legal practitioner agrees to provide legal services; and

                     (b)  the payment of all, or a substantial proportion, of the legal practitioner’s costs is contingent on the outcome of the matter in which the practitioner provides the legal services for the person.

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, or the Registration and Accountability of Organisations Schedule, of the industrial interests of employees by an organisation of employees.

Deputy President means a Deputy President of the Commission.

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.

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.

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.

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.

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.

legal practitioner means a legal practitioner (however described) of the High Court or of a Supreme Court of a State or Territory.

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 has the same meaning as in the Registration and Accountability of Organisations Schedule.

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

old IR agreement means an agreement certified or approved under:

                     (a)  section 115, as in force immediately before the commencement of the Industrial Relations Amendment Act 1992; or

                     (b)  Division 3A of Part VI, as in force immediately before the commencement of Schedule 2 to the Industrial Relations Reform Act 1993; or

                     (c)  Part VIB, as in force immediately before the commencement of item 1 of Schedule 9 to the Workplace Relations and Other Legislation Amendment Act 1996.

organisation means an organisation registered under the Registration and Accountability of Organisations Schedule.

Note:          An organisation that was registered under the Workplace Relations Act 1996 immediately before the commencement of item 1 of Schedule 2 to the Workplace Relations Legislation Amendment (Registration and Accountability of Organisations) (Consequential Provisions) Act 2002 (the Consequential Provisions Act) is taken to have been registered under the Registration and Accountability of Organisations Schedule (see item 15 of Schedule 1 to the Consequential Provisions Act).

panel 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.

penalty unit has the same meaning as in the Crimes Act 1914.

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

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 1999 or the Parliamentary Service Act 1999;

                     (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.

Registration and Accountability of Organisations Schedule means Schedule 1B.

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 but does not include Schedule 1B or regulations made under that Schedule.

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 (except in Part XA) to an independent contractor is confined to a natural person.

             (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; and

                     (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; and

                     (d)  an industrial dispute within the meaning of the Registration and Accountability of Organisations Schedule.

             (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 151(1) of the Registration and Accountability of Organisations Schedule.

             (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.

Note:          Section 69B of the Australian Federal Police Act 1979 provides that this Act does not apply to certain matters relating to AFP employees.

4A  Schedule 1B

                   Schedule 1B has effect.

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;

             (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.

             (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.

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.

6  Act binds Crown

             (1)  This Act binds the Crown in each of its capacities.

             (2)  However, this Act does not make the Crown 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.

7B  Application of Criminal Code

                   Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against this Act.

Note 1:       Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2:       For the purposes of this Act, corporate criminal responsibility is dealt with by section 349, rather than by Part 2.5 of the Criminal Code.


 

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.

8A  Functions of Commission

                   The functions of the Commission are the functions conferred on the Commission by this Act, the Registration and Accountability of Organisations Schedule or otherwise.

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 travelling allowances as are determined from time to time by the Remuneration Tribunal for travel within Australia; and

                     (c)  such other allowances as are prescribed by the regulations.

          (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 travelling allowances as are determined from time to time by the Remuneration Tribunal for travel within Australia; and

                     (c)  such other allowances as are prescribed by the regulations.

          (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 travelling allowances as are determined from time to time by the Remuneration Tribunal for travel within Australia; and

                     (c)  such other allowances as are prescribed by the regulations.

          (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 travelling allowances as are determined from time to time by the Remuneration Tribunal for travel within Australia; and

                     (c)  such other allowances as are prescribed by the regulations.

          (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 travelling allowances as are determined from time to time by the Remuneration Tribunal for travel within Australia; and

                     (c)  such other allowances as are prescribed by the regulations.

          (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 Judges’ 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.

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 travelling allowances as are determined from time to time by the Remuneration Tribunal for travel within Australia; and

                     (c)  such other allowances as are prescribed by the regulations.

             (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)  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.

             (3)  In this section:

proceeding includes a proceeding under the Registration and Accountability of Organisations Schedule.

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 and the Registration and Accountability of Organisations Schedule, 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, the Registration and Accountability of Organisations Schedule 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, the Registration and Accountability of Organisations Schedule or otherwise).

31  Powers exercisable by single member of Commission

                   Subject to this Act and the Registration and Accountability of Organisations Schedule, 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 or the Registration and Accountability of Organisations Schedule on a member or members of the Commission, however described, 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 and the Registration and Accountability of Organisations Schedule, 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 mentioned in subsection (1).

             (4)  A member of the Commission may be a member of the panel established under section 14 of the Registration and Accountability of Organisations Schedule.

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 or the Registration and Accountability of Organisations Schedule.

             (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 3Representation 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 relating to matters arising other than under the Registration and Accountability of Organisations Schedule

             (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; and

                     (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; and

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

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

                    (da)  a declaration made by a member of the Commission under a provision of Division 5 of Part VI, or a decision by a member of the Commission not to make such a declaration; and

                     (e)  a decision of a member of the Commission refusing to certify an agreement under Division 4 of Part VIB; and

                  (eaa)  a decision of a member of the Commission to certify an agreement under Division 4 of Part VIB (but only on the ground that under subsection 170LU(2A) the Commission should have refused to certify the agreement); and

                  (eba)  a decision of a member of the Commission to vary, or not to vary, an award or certified agreement under section 298Z; and

                    (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; and

                    (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; and

                    (ed)  a decision of the Commission to vary, or not to vary, an award or certified agreement that has been referred to the Commission under section 46PW of the Human Rights and Equal Opportunity Commission Act 1986; 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 covered by paragraph (aa) or (ab) of this subsection—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; and

                    (ab)  in the case of an appeal under paragraph (1)(b) against an order that was made under subsection 170MBA(2)—by the organisation or person who applied for the order or any organisation or person who made submissions to the Commission on whether the order should be made;

                    (ac)  in the case of an appeal under paragraph (1)(c) against a decision not to make an order under subsection 170MBA(2)—by the organisation or person who applied for the order;

                    (ad)  in the case of an appeal under paragraph (1)(da) against a declaration under a provision of Division 5 of Part VI—by an organisation or person to whom the common rule applies; and

                     (b)  in the case of an appeal under paragraph (1)(e)—by a person who made the agreement; and

                    (ba)  in the case of an appeal under paragraph (1)(eaa):

                              (i)  a person bound by the certified agreement; or

                             (ii)  an employee whose employment is subject to the certified agreement; or

                            (iii)  the Employment Advocate; and

                  (baa)  in the case of an appeal under paragraph (1)(eba) in relation to an award:

                              (i)  an organisation or party bound by the award; or

                             (ii)  an employee whose employment is subject to the award; or

                            (iii)  the Employment Advocate; and

                  (bab)  in the case of an appeal under paragraph (1)(eba) in relation to a certified agreement:

                              (i)  a person bound by the certified agreement; or

                             (ii)  an employee whose employment is subject to the certified agreement; or

                            (iii)  the Employment Advocate; and

                    (bb)  in the case of an appeal under paragraph (1)(ed)—by a party to the review of the award under section 111A; and

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

Note:          Because of the reference in subsection 494(3) to “the related provisions of this Act”, the operation of paragraphs (3)(ab) and (ac) extends to orders, and decisions not to make orders, under subsection 170MBA(2) as applied and modified by section 494.

          (3A)  The Full Bench must, on application, grant to a Minister of Victoria, on behalf of the Government of Victoria, leave to intervene in the following cases:

                     (a)  an appeal against a decision of a member of the Commission made under section 170MW in relation to a bargaining period for negotiating a proposed agreement if one or more of the employees to be covered by the proposed agreement is an employee in Victoria;

                     (b)  an appeal against a decision of a member of the Commission made under section 501.

          (3B)  The Full Bench must, on application, grant to a Minister of Victoria, on behalf of the Government of Victoria, leave to intervene in an appeal against a decision of a member of the Commission made under section 141 or subsection 142(5) (as that section or subsection has effect because of subsection 493A(2)).

             (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.

45A  Appeals to Full Bench relating to matters arising under the Registration and Accountability of Organisations Schedule etc.

             (1)  Subject to the Registration and Accountability of Organisations Schedule and 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 a matter arising under the Registration and Accountability of Organisations Schedule; and

                     (b)  an order made by a member of the Commission under that Schedule, other than an order made by consent of the parties to an industrial dispute; and

                     (c)  a decision of a member of the Commission under that Schedule not to make an order; and

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

                     (e)  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 the Registration and Accountability of Organisations Schedule.

             (2)  A Full Bench must 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 by:

                     (a)  a party to the proceeding; or

                     (b)  a person bound by an order; or

                     (c)  a person aggrieved by the decision.

             (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 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 order) that could have been taken if the decision under paragraph 111(1)(g) had not been made.

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

             (9)  Each provision of this Act and the Registration and Accountability of Organisations Schedule relating to the hearing or determination of a matter mentioned in subsection (1) of this section 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 5Miscellaneous

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 or the Registration and Accountability of Organisations Schedule, 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; and

                     (e)  the furnishing of security for the payment of costs in respect of an application made under section 170CE.

          (1A)  The rules must allow applications under Part VIB, and any ancillary documents relating to those applications, to be made or given to the Commission in electronic form.

          (1B)  If the rules allow such an application or ancillary document to be given to the Commission in electronic form, then the rules may also allow the Commission to additionally require the original application or ancillary document to be produced to 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.

48A  President must provide certain information etc. to the Minister

             (1)  The President must provide to the Minister information, and copies of documents, of the kinds that are prescribed by the regulations, being:

                     (a)  information that is publicly available, or derived from information that is publicly available, relating to:

                              (i)  the Commission’s orders, decisions or actions under this Act; or

                             (ii)  notifications or applications made or given to the Commission under this Act; or

                     (b)  copies of such orders, decisions, notifications or applications.

             (2)  The President must provide the information or the copies by the time, and in the form, prescribed by the regulations.

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:

                     (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 or the Registration and Accountability of Organisations Schedule.

          (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.

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 under this Act and the Registration and Accountability of Organisations Schedule during that year.

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


 

Division 2Registrars

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, the Registration and Accountability of Organisations Schedule or an award; and

                     (b)  shall perform the functions conferred on the Industrial Registry by this Act or the Registration and Accountability of Organisations Schedule, 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.

             (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)  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, the Registration and Accountability of Organisations Schedule 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 or the Registration and Accountability of Organisations Schedule, 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 3References 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, the Registration and Accountability of Organisations Schedule (to the extent permitted by that Schedule) or any other 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, the Registration and Accountability of Organisations Schedule (to the extent permitted by that Schedule) or any other 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 under this Act or the Registration and Accountability of Organisations Schedule 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 4Staff

83  Staff

             (1)  The staff of the Industrial Registry, including the Deputy Industrial Registrars, shall be persons engaged under the Public Service Act 1999.

             (2)  For the purposes of the Public Service Act 1999:

                     (a)  the Industrial Registrar and the APS employees assisting the Industrial Registrar together constitute a Statutory Agency; and

                     (b)  the Industrial Registrar is the Head of that Statutory Agency.


 

Part IVAThe Employment Advocate

Division 1Functions, 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, the Registration and Accountability of Organisations Schedule 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 engaged under the Public Service Act 1999 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(1)(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 2Authorised 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).

Penalty:  1 penalty unit.

          (5A)  Subsection (5) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

          (5B)  Subsection (5) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (5B) (see subsection 13.3(3) of the Criminal Code).

             (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 Part VID 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; or

                     (c)  a place of business in which the authorised officer has reasonable cause to believe that a breach of Part VID (AWAs) or Part XA (freedom of association) has occurred, is occurring or is likely to occur.

             (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 person;

                     (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.

             (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).

Note:          Contravening a requirement under paragraph (4)(d) or subsection (5) of this section may be an offence under section 305A.

             (6)  Where a document is produced to an authorised officer under paragraph (4)(d) or 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.

          (7A)  An authorised officer may, without force, enter a place of business in which a person ordinarily performs work or conducts business if the authorised officer has reasonable cause to believe that the person has information relevant to compliance purposes.

          (7B)  An authorised officer must not enter a place of business under subsection (7A) if he or she has reasonable cause to believe that the person concerned is not in that place.

          (7C)  An authorised officer who enters a place of business under subsection (7A) may interview the person concerned in that place.

             (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)  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

                    (ba)  a member of the staff assisting the Employment Advocate under section 83BD; 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

  

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 engaged under the Public Service Act 1999 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 71 of the Public Service Act 1999 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

Purpose for which powers of inspectors can be exercised

             (1)  The powers of an inspector under this section may be exercised for the purpose of ascertaining whether awards and certified agreements, and the requirements of this Act other than section 541, are being, or have been, observed.

Powers of inspectors

          (1A)  The powers of an inspector are:

                     (a)  to, 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 the purpose set out in subsection (1); and

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

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

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

                            (iii)  to interview any employee; and

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

                     (c)  to require a person, by notice, to produce to the inspector a document relevant to the purpose set out in subsection (1).

When may the powers be exercised?

          (1B)  An inspector may exercise the powers in subsection (1A) at any time during ordinary working hours or at any other time at which it is necessary to do so for the purpose set out in subsection (1).

             (2)  If a person who is required under subparagraph (1A)(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).

Note:          Contravening a requirement under this section to produce a document may be an offence under section 305.

             (3)  Where a document is produced to an inspector under paragraph (1A)(c) or 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.

Notices under paragraph (1A)(c)

          (4A)  The notice referred to in paragraph (1A)(c) must:

                     (a)  be in writing; and

                     (b)  be served on the person; and

                     (c)  require the person to produce the document at a specified place within a specified period of not less than 14 days.

Service may be effected by sending the notice to the person’s fax number.

Person must produce document even if it may incriminate them

          (4B)  A person is not excused from producing a document under paragraph (1A)(c) on the ground that the production of the document may tend to incriminate the person.

Limited use immunity for documents produced

          (4C)  If an individual produces a document under paragraph (1A)(c), the document produced and any information or thing (including any document) obtained as a direct or indirect consequence of the production of the document is not admissible in evidence against the individual in any criminal proceedings unless it is proceedings for an offence against section 305.

             (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.

Extended meaning of award

             (6)  In this section, a reference to an award includes a reference to a contract of employment with an employee in Victoria (other than an employment agreement). The terms of the award, in this case, are taken to be the minimum terms and conditions of employees in Victoria applicable under subsection 500(1).

Definitions used in this section

             (7)  In this section:

employee in Victoria has the same meaning as the term employee has in section 489.

employment agreement has the same meaning it has in section 489.

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 VACompliance etc. powers

  

88AA  Secretary’s powers to obtain information etc.

Secretary may require information, documents etc.

             (1)  Subject to subsections (2) and (3), if the Secretary of the Department believes on reasonable grounds that a person (the relevant person):

                     (a)  has information or documents relevant to a building industry investigation; or

                     (b)  is capable of giving evidence that is relevant to a building industry investigation;

the Secretary may, by written notice given within 3 years of the commencement of this Part to the relevant person, require the relevant person:

                     (c)  to give the information to the Secretary, or to an assistant, by the time, and in the manner and form, specified in the notice; or

                     (d)  to produce the documents to the Secretary, or to an assistant, by the time, and in the manner, specified in the notice; or

                     (e)  to attend before the Secretary, or an assistant, at the time and place specified in the notice, and answer questions relevant to the investigation.

             (2)  The time specified under paragraph (1)(c), (d) or (e) must be at least 14 days after the notice is given.

             (3)  The power given by subsection (1) must not be used for the purposes of an investigation that is minor or petty.

Exercise of powers or functions by assistants

          (3A)  An assistant cannot exercise or perform powers or functions as mentioned in paragraph (1)(c), (d) or (e) unless guidelines that have been made and tabled as required by section 88AGA are in force.

          (3B)  In exercising or performing powers or functions as mentioned in paragraph (1)(c), (d) or (e), an assistant must comply with the guidelines.

Legal representation

             (4)  A person attending before the Secretary of the Department, or before an assistant, as mentioned in paragraph (1)(e) may, if the person so chooses, be represented by a person who, under the Judiciary Act 1903, is entitled to practise as a barrister or solicitor, or both, in a federal court.

Oath or affirmation

             (5)  The Secretary of the Department, or an assistant, may require the information or answers to be verified by, or given on, oath or affirmation, and either orally or in writing. For that purpose, the Secretary, or an assistant, may administer the oath or affirmation.

             (6)  The oath or affirmation is an oath or affirmation that the information or answers are or will be true.

Offence

             (7)  A person commits an offence if:

                     (a)  the person has been given a notice under subsection (1); and

                     (b)  the person fails:

                              (i)  to give the required information by the time, and in the manner and form, specified in the notice; or

                             (ii)  to produce the required documents by the time, and in the manner, specified in the notice; or

                            (iii)  to attend to answer questions at the time and place specified in the notice; or

                            (iv)  to take an oath or make an affirmation, when required to do so under subsection (5); or

                             (v)  to answer questions relevant to the investigation while attending as required by the notice.

Penalty:

                     (c)  for a first offence—30 penalty units; or

                     (d)  for a second or subsequent offence—imprisonment for 6 months or a fine of 60 penalty units.

Effect of secrecy provisions

             (8)  The operation of this section is not limited by any secrecy provision of any other law (whether enacted before or after the commencement of this section), except to the extent that the secrecy provision expressly excludes the operation of this section. For this purpose, secrecy provision means a provision that prohibits the communication or divulging of information.

Definitions

             (9)  In this section:

assistant means:

                     (a)  the person occupying the position in the Department known as the director of the Building Industry Taskforce; or

                     (b)  a building industry authorised officer; or

                     (c)  a building industry inspector.

building industry authorised officer means an authorised officer exercising or performing powers or functions as part of, or for the purpose of assisting, the Building Industry Taskforce.

building industry inspector means an inspector exercising or performing powers or functions as part of, or for the purpose of assisting, the Building Industry Taskforce.

building industry investigation means an investigation in relation to which the following paragraphs are satisfied:

                     (a)  the investigation is:

                              (i)  by a building industry authorised officer for a purpose referred to in subsection 83BH(1) (which is about authorised officers ascertaining whether the terms of an AWA, or certain provisions of this Act, are being, or have been, complied with); or

                             (ii)  by a building industry inspector for a purpose referred to in subsection 86(1) (which is about inspectors ascertaining whether the terms of an award or certified agreement, or certain provisions of this Act, are being, or have been, complied with); and

                     (b)  the subject matter of the investigation involves, or is related to, the building and construction industry.

Building Industry Taskforce means the Taskforce of that name established within the Department.

88AB  Certain excuses not available in relation to section 88AA requirements

Excuses that are not available

             (1)  A person is not excused from giving information, producing a document, or answering a question, under section 88AA on the ground that to do so:

                     (a)  would contravene any other law; or

                     (b)  might tend to incriminate the person or otherwise expose the person to a penalty or other liability; or

                     (c)  would be otherwise contrary to the public interest.

Use/derivative use indemnity

             (2)  However, neither:

                     (a)  the information or answer given or the document produced; nor

                     (b)  any information, document or thing obtained as a direct or indirect consequence of giving the information or answer or producing the document;

is admissible in evidence against the person in proceedings, other than:

                     (c)  proceedings for an offence against subsection 88AA(7); or

                     (d)  proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Act; or

                     (e)  proceedings for an offence against section 149.1 of the Criminal Code that relates to this Act.

88AC  Protection from liability

                   A person who, in good faith:

                     (a)  gives information; or

                     (b)  produces a document; or

                     (c)  answers a question;

when requested or required to do so under section 88AA is not liable to:

                     (d)  any proceedings for contravening any other law because of that conduct; or

                     (e)  civil proceedings for loss, damage or injury of any kind suffered by another person because of that conduct.

88AD  Retention and copying etc. of documents

Secretary or assistant may keep documents

             (1)  The Secretary of the Department, or an assistant, may take possession of a document produced under section 88AA and keep it for as long as is necessary for the purposes of the conduct of the investigation to which the document is relevant.

Certified copy to be supplied to person entitled to document

             (2)  The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy that is certified, by one of the following persons, to be a true copy:

                     (a)  the Secretary of the Department;

                     (b)  an assistant.

Certified copy to be treated as original

             (3)  The certified copy must be received in all courts and tribunals as evidence as if it were the original.

Right to inspect and copy the original

             (4)  Until a certified copy is supplied, the Secretary of the Department, or an assistant, must, at such times and places as the Secretary or assistant considers appropriate, permit the person otherwise entitled to possession of the document (or a person authorised by that person) to inspect and make copies of all or part of the document.

Definition

             (5)  In this section:

assistant has the same meaning as in section 88AA.

88AE  Secretary or assistant may make and keep copies of documents

             (1)  The Secretary of the Department, or an assistant, may make and keep copies of all or part of any documents produced under section 88AA.

             (2)  In this section:

assistant has the same meaning as in section 88AA.

88AF  Protection of confidentiality of information

             (1)  This section restricts what a person (the entrusted person) may do with protected information that the person has obtained in the course of official employment.

Note:          Although this section applies only to information that a person obtained in the course of official employment, the obligations under this section continue to apply after the person ceases to be in official employment.

Recording or disclosing

             (2)  The entrusted person must not:

                     (a)  make a record of protected information; or

                     (b)  disclose protected information.

Penalty:  Imprisonment for 12 months.

Permitted recording or disclosure by designated officials

             (3)  If the entrusted person is a designated official at the time of the recording or disclosure, then each of the following is an exception to the offence in subsection (2):

                     (a)  the recording or disclosure is for the purposes of this Act;

                     (b)  the recording or disclosure happens in the course of the performance of the duties of the entrusted person’s official employment;

                     (c)  in the case of a disclosure—the disclosure is to a person appointed or employed by:

                              (i)  the Commonwealth, a State or Territory; or

                             (ii)  an authority of the Commonwealth, a State or Territory;

                            for the purpose of assisting in relevant law enforcement;

                     (d)  the recording or disclosure is in accordance with regulations made for the purposes of this paragraph.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code.

Permitted recording or disclosure by other persons

             (4)  If the entrusted person is not a designated official at the time of the recording or disclosure, then each of the following is an exception to the offence in subsection (2):

                     (a)  the recording or disclosure is for the purposes of this Act;

                     (b)  the recording or disclosure happens in the course of the performance of the duties of the entrusted person’s official employment, being duties relating to relevant law enforcement;

                     (c)  the recording or disclosure is in accordance with regulations made for the purposes of this paragraph.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (4): see subsection 13.3(3) of the Criminal Code.

Authorisation for purposes of Privacy Act

             (5)  A disclosure of personal information is taken to be authorised by law for the purposes of paragraph (1)(d) of Information Privacy Principle 11 in section 14 of the Privacy Act 1988 if the information is protected information and the disclosure is made in accordance with subsection (3) or (4) of this section.

Definitions

             (6)  In this section:

designated official means any of the following:

                     (a)  the Secretary of the Department;

                     (b)  a Registrar;

                     (c)  the person occupying the position in the Department known as the director of the Building Industry Taskforce;

                     (d)  an inspector;

                     (e)  an authorised officer;

                      (f)  a person acting under a delegation under this Act from a person covered by any of the above paragraphs.

disclose means divulge or communicate.

industrial association means:

                     (a)  an organisation; or

                     (b)  any other association covered by any of the following subparagraphs:

                              (i)  an association of employees and/or independent contractors, or an association of employers, that is registered or recognised as such an association (however described) under an industrial law; or

                             (ii)  an association of employees and/or independent contractors a principal purpose of which is the protection and promotion of their interests in matters concerning their employment, or their interests as independent contractors, as the case requires; or

                            (iii)  an association of employers a principal purpose of which is the protection and promotion of their interests in matters concerning employment and/or independent contractors;

and includes a branch of an organisation, or of an association referred to in paragraph (b).

industrial law means this Act, the Registration and Accountability of Organisations Schedule or a law, however designated, of a State or Territory that regulates the relationships between employers and employees or provides for the prevention or settlement of disputes between employers and employees.

official employment means:

                     (a)  appointment or employment by, or the performance of services for:

                              (i)  the Commonwealth, a State or Territory; or

                             (ii)  an authority of the Commonwealth, a State or Territory; or

                     (b)  appointment as an inspector or an authorised officer.

protected information means information that:

                     (a)  was disclosed or obtained under this Part; and

                     (b)  was obtained by the entrusted person, or by any other person, in the course of official employment; and

                     (c)  relates to a person other than the entrusted person.

relevant law enforcement means enforcement of a law of the Commonwealth, or of a State or Territory, where the enforcement is in respect of conduct by, or in relation to, a person or body in the person’s or body’s capacity as any of the following:

                     (a)  an employee;

                     (b)  an employer;

                     (c)  an independent contractor;

                     (d)  the other party to a contract entered into by a person as an independent contractor;

                     (e)  an industrial association;

                      (f)  an officer, delegate or other representative of an industrial association;

                     (g)  an employee of an industrial association.

88AG  Delegation by Secretary

             (1)  The Secretary of the Department may, in writing, delegate all or any of his or her powers and functions under this Part to the person (the director) occupying the position in the Department known as the director of the Building Industry Taskforce.

             (2)  The director cannot exercise or perform powers or functions under a delegation unless guidelines that have been made and tabled as required by section 88AGA are in force.

             (3)  In exercising or performing powers or functions under a delegation, the director:

                     (a)  must comply with the guidelines; and

                     (b)  must comply with any directions of the Secretary of the Department.

88AGA  Guidelines for the exercise or performance of powers or functions

             (1)  The Secretary of the Department must, in writing, determine guidelines relating to:

                     (a)  the exercise or performance of powers or functions by the director (within the meaning of section 88AG) under a delegation; and

                     (b)  the exercise or performance of powers or functions by an assistant (within the meaning of section 88AA) as mentioned in paragraphs 88AA(1)(c), (d) and (e).

             (2)  The Secretary of the Department must cause the guidelines to be tabled in each House of the Parliament.

             (3)  Guidelines tabled in accordance with subsection (2) are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.

             (4)  Guidelines determined in accordance with subsection (1) do not take effect until after the expiration of the time within which the guidelines may be disallowed by either House of the Parliament.

88AH  Relationship with other provisions about authorised officers and inspectors

             (1)  Subject to this section, nothing in this Part limits, or is limited by:

                     (a)  Division 2 of Part IVA (which is about authorised officers); or

                     (b)  Part V (which is about inspectors).

             (2)  In particular (but without otherwise limiting subsection (1)):

                     (a)  an authorised officer or inspector is not subject to directions under subsection 83BG(2) or 84(5) when exercising or performing powers or functions under this Part; and

                     (b)  despite subsection 84(4A), an inspector appointed under paragraph 84(2)(b) may exercise or perform powers or functions under this Part whether or not those powers or functions are specified in his or her instrument of appointment.

             (3)  However, the requirements of subsections 83BG(6) and 85(2) (relating to the carrying of identity cards) do apply to an authorised officer or inspector when exercising or performing functions or powers under this Part.

88AI  Annual review by Ombudsman of exercise of section 88AA power

             (1)  As soon as practicable after the end of each year to which section 88AA applies, the Ombudsman must conduct a review of the use of the power given by section 88AA in that year.

Note:          Under the Ombudsman Act 1976, a person may complain to the Commonwealth Ombudsman about activities of the Building Industry Taskforce.

             (2)  For the purposes of conducting a review, the Secretary must provide the Ombudsman with such information and access to documents as the Ombudsman requires.

             (3)  The Ombudsman must cause a copy of each report to be tabled in each House of the Parliament.

             (4)  In this section:

Ombudsman means the Commonwealth Ombudsman.

year to which section 88AA applies means each period of 12 months that starts on the day on which this Part commences, or on an anniversary of that day, and that is wholly or partly within the period during which the power given by subsection 88AA(1) can be used.


 

Part VIDispute prevention and settlement

Division 1AObjects 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:

                              (i)  encourages the making of agreements between employers and employees at the workplace or enterprise level; and

                             (ii)  uses a case-by-case approach to protect the competitive position of young people in the labour market, to promote youth employment, youth skills and community standards and to assist in reducing youth unemployment.


 

Division 1Functions 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.

          (1A)  To the extent that the Commission is performing its functions under this Part in relation to matters arising under the Registration and Accountability of Organisations Schedule, the Commission must perform those functions in a way that furthers the objects of that Schedule.

             (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;

                    (ba)  the need, using a case-by-case approach, to protect the competitive position of young people in the labour market, to promote youth employment, youth skills and community standards and to assist in reducing youth unemployment, through appropriate wage provisions, including, where appropriate, junior 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.

             (4)  For the purposes of paragraph (3)(e), junior wage provisions are not to be treated as constituting discrimination by reason of age.

             (5)  For the purposes of paragraph (3)(e), trainee wage arrangements are not to be treated as constituting discrimination by reason of age if:

                     (a)  they apply (whether directly or otherwise) the wage criteria set out in the award providing for the national training wage or wage criteria of that kind; or

                     (b)  they contain different rates of pay for adult and non-adult employees participating in an apprenticeship, cadetship, or other similar work-based training arrangement.

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 Act, the Registration and Accountability of Organisations Schedule 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)  incentive-based payments (other than tallies in the meat industry), piece rates 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.

89B  Review of certain awards

             (1)  Within 12 months after this section commences, the Commission must review all awards containing clauses that provide for, or regulate, tallies in the meat industry and, after considering appropriate alternatives, may vary an award to remove such clauses.

             (2)  Any clause that provides for, or regulates, tallies in the meat industry that is contained in an award ceases to have effect at the end of 12 months after this section commences.

             (3)  After the end of the period of time mentioned in subsection (2), the Commission may vary any award to remove any clauses that have ceased to have effect because of subsection (2).

             (4)  If the Commission varies an award under subsection (1) or (3), it must include in the award provisions that ensure that overall entitlements to pay provided by the award are not reduced by that variation, unless the Commission considers that it would be in the public interest not to include such provisions.

90  Commission to take into account the public interest

             (1)  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.

             (2)  To the extent that the Commission is performing its functions in relation to matters arising under the Registration and Accountability of Organisations Schedule, the Commission must take into account the public interest, and for that purpose must have regard to:

                     (a)  the objects of that Schedule; and

                     (b)  the state of the national economy and the likely effects on the national economy of any 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, Disability Discrimination Act and Age 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, the Disability Discrimination Act 1992 and the Age Discrimination Act 2004 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 or the Registration and Accountability of Organisations Schedule.


 

Division 2Powers 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.

Note:          Some industrial disputes (including demarcation disputes) are dealt with under the Registration and Accountability of Organisations Schedule.

             (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.

Note:          A demarcation dispute that is not resolved by conciliation is dealt with under the Registration and Accountability of Organisations Schedule.

             (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 or the Registration and Accountability of Organisations Schedule 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.

             (6)  In an arbitration proceeding under the Registration and Accountability of Organisations Schedule, unless all the parties agree, evidence must not be given, or statements made, that would disclose anything said or done in a conciliation proceeding under that Schedule (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