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Workplace Relations Act 1996

  • - C2005C00709
  • In force - Superseded Version
  • View Series
Act No. 86 of 1988 as amended, taking into account amendments up to Act No. 153 of 2005
An Act relating to workplace relations, and for other purposes
Administered by: Attorney-General's; DEWR
Registered 19 Dec 2005
Start Date 14 Dec 2005
End Date 26 Mar 2006

Workplace Relations Act 1996

Act No. 86 of 1988 as amended

This compilation was prepared on 16 December 2005
taking into account amendments up to Act No. 153 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:       Table of Contents
                                    Sections 285A – 549
                                    Schedules 1A, 1B, 1, 2, 10, 12 and 14
                                    Note 1
                                    Table of Acts
                                    Act Notes
                                    Table of Amendments
Volume 3 includes:       Note 2
                                    Table A

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

 

 

 


Contents

Part I—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 IA—Australian Fair Pay Commission                                                             20

Division 1—Preliminary                                                                                            20

7F.......... Definitions........................................................................................ 20

Division 2—Australian Fair Pay Commission                                                21

Subdivision A—Establishment and functions                                                      21

7G......... Establishment................................................................................... 21

7H......... Functions of the AFPC.................................................................... 21

Subdivision B—AFPC’s wage-setting function                                                   21

7I........... AFPC’s wage-setting function......................................................... 21

7J.......... AFPC’s wage-setting parameters..................................................... 22

7K......... Wage reviews and wage-setting decisions......................................... 22

7L.......... Constitution of the AFPC for wage-setting powers........................ 23

7M........ Publishing wage-setting decisions etc............................................... 23

Subdivision C—Operation of the AFPC                                                                24

7N......... AFPC to determine its own procedures........................................... 24

7O......... Annual report................................................................................... 24

Subdivision D—AFPC Chair                                                                                   24

7P.......... Appointment.................................................................................... 24

7Q......... Remuneration.................................................................................... 24

7R......... Leave of absence............................................................................... 25

7S.......... Engaging in other paid employment................................................. 25

7T......... Disclosure of interests...................................................................... 25

7U......... Resignation....................................................................................... 25

7V......... Termination of appointment............................................................ 25

7W........ Other terms and conditions.............................................................. 27

7X......... Acting AFPC Chair.......................................................................... 27

Subdivision E—AFPC Commissioners                                                                 28

7Y......... Appointment.................................................................................... 28

7Z......... Remuneration.................................................................................... 28

7ZA...... Leave of absence............................................................................... 28

7ZB....... Disclosure of interests...................................................................... 28

7ZC....... Resignation....................................................................................... 29

7ZD...... Termination of appointment............................................................ 29

7ZE....... Other terms and conditions.............................................................. 30

7ZF....... Acting AFPC Commissioners.......................................................... 30

Division 3—AFPC Secretariat                                                                               32

Subdivision A—Establishment and function                                                        32

7ZG...... Establishment................................................................................... 32

7ZH...... Function............................................................................................ 32

Subdivision B—Operation of the AFPC Secretariat                                          32

7ZI........ AFPC Chair may give directions...................................................... 32

7ZJ........ Annual report................................................................................... 32

Subdivision C—The Director of the Secretariat                                                 33

7ZK...... Appointment.................................................................................... 33

7ZL....... Remuneration.................................................................................... 33

7ZM..... Leave of absence............................................................................... 33

7ZN...... Engaging in other paid employment................................................. 33

7ZO...... Disclosure of interests...................................................................... 33

7ZP....... Resignation....................................................................................... 34

7ZQ...... Termination of appointment............................................................ 34

7ZR....... Other terms and conditions.............................................................. 35

7ZS....... Acting Director of the Secretariat..................................................... 35

Subdivision D—Staff and consultants                                                                   36

7ZT....... Staff.................................................................................................. 36

7ZU...... Consultants....................................................................................... 36

Part II—Australian Industrial Relations Commission                                     37

Division 1—Establishment of Commission                                                     37

8............ Establishment of Commission.......................................................... 37

8A......... Functions of Commission................................................................. 37

9............ Appointment of Commission members etc...................................... 37

10.......... Qualifications for appointment........................................................ 38

11.......... Seniority........................................................................................... 39

12.......... Performance of duties on part-time basis......................................... 39

13.......... Dual federal and State appointments................................................ 40

14.......... Performance of duties by dual federal and State appointees............ 41

15.......... Dual federal appointments............................................................... 41

15A....... Appointment of a Judge as President not to affect tenure etc......... 41

16.......... Tenure of Commission members...................................................... 42

17.......... Acting President............................................................................... 42

17A....... Acting Vice President....................................................................... 43

17B....... Acting Senior Deputy President....................................................... 43

18.......... Acting Deputy Presidents................................................................ 44

19.......... Oath or affirmation of office............................................................. 44

19A....... Discharge of Commission’s business............................................... 45

20.......... Duty of Commission members......................................................... 45

21.......... Remuneration and allowances of Presidential Members etc............. 45

22.......... Application of Judges’ Pensions Act............................................... 47

23.......... Remuneration and allowances of Commissioners............................. 48

24.......... Removal of Presidential Member from office................................... 49

25.......... Outside employment of Commissioner............................................ 49

26.......... Leave of absence of Commissioner................................................... 49

27.......... Disclosure of interest by Commission members.............................. 50

28.......... Termination of appointment of Commissioner................................ 51

29.......... Resignation by Commission member............................................... 51

Division 2—Organisation of Commission                                                        52

30.......... Manner in which Commission may be constituted.......................... 52

31.......... Powers exercisable by single member of Commission...................... 52

32.......... Functions and powers conferred on members.................................. 52

33.......... Powers may be exercised of Commission’s own motion or on application            53

34.......... Continuation of hearing by Commission.......................................... 53

35.......... Commission divided in opinion........................................................ 54

36.......... Arrangement of business of Commission......................................... 54

37.......... Panels of Commission for particular industries................................ 55

39.......... Conference of Commission members............................................... 56

40.......... Delegation by President.................................................................... 56

41.......... Protection of Commission members................................................. 56

Division 3—Representation and intervention                                               57

42.......... Representation of parties before Commission................................. 57

43.......... Intervention generally....................................................................... 58

44.......... Particular rights of intervention of Minister..................................... 59

Division 4—Appeals to Full Bench and references to Court                60

45.......... Appeals to Full Bench relating to matters arising other than under the Registration and Accountability of Organisations Schedule..................................................................... 60

45A....... Appeals to Full Bench relating to matters arising under the Registration and Accountability of Organisations Schedule etc..................................................................................................... 64

46.......... References to Court by Commission on question of law................. 65

Division 5—Miscellaneous                                                                                      67

47.......... Seals of Commission......................................................................... 67

48.......... Rules of Commission........................................................................ 67

48A....... President must provide certain information etc. to the Minister..... 68

49.......... Annual report of Commission.......................................................... 69

Part IV—Australian Industrial Registry                                                                  70

Division 1A—Interpretation                                                                                   70

61A....... Definition of State industrial body.................................................... 70

Division 1—Establishment and functions of Australian Industrial Registry       71

62.......... Australian Industrial Registry.......................................................... 71

63.......... Functions of the Industrial Registry................................................. 71

64.......... Registries.......................................................................................... 73

65.......... Seals of the Registry......................................................................... 73

66.......... Annual report of Industrial Registry................................................ 73

Division 2—Registrars                                                                                              74

67.......... Industrial Registrar........................................................................... 74

68.......... Tenure of office of Industrial Registrar............................................ 75

69.......... Remuneration and allowances of Industrial Registrar....................... 76

70.......... Outside employment of Industrial Registrar.................................... 76

71.......... Disclosure of interests by Industrial Registrar................................. 76

72.......... Leave of absence of Industrial Registrar........................................... 76

73.......... Resignation by Industrial Registrar.................................................. 77

74.......... Termination of appointment of Industrial Registrar........................ 77

75.......... Deputy Industrial Registrars............................................................ 77

76.......... Acting Industrial Registrar................................................................ 79

77.......... Acting Deputy Industrial Registrars................................................ 79

78.......... Oath or affirmation of office of Registrar........................................ 80

Division 3—References and appeals                                                                  81

79.......... References by Registrar to Commission........................................... 81

80.......... Removal of matters before Registrar................................................ 81

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

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

Division 4—Staff                                                                                                            84

83.......... Staff.................................................................................................. 84

Part IVA—The Employment Advocate                                                                    85

Division 1—Functions, powers etc. of the Employment Advocate    85

83BA.... The Employment Advocate............................................................. 85

83BB..... Functions.......................................................................................... 85

83BC..... Minister’s directions to Employment Advocate.............................. 86

83BD.... Staff.................................................................................................. 86

83BE..... Delegation by Employment Advocate............................................. 86

83BF..... Annual report................................................................................... 87

Division 2—Authorised officers                                                                            88

83BG.... Appointment of authorised officers................................................. 88

83BH.... Powers of authorised officers........................................................... 88

Division 3—Appointment, conditions of appointment etc. of Employment Advocate   91

83BI...... Appointment of Employment Advocate......................................... 91

83BJ...... Remuneration and allowances........................................................... 91

83BK.... Outside employment........................................................................ 91

83BL..... Recreation leave etc.......................................................................... 91

83BM... Resignation....................................................................................... 92

83BN.... Disclosure of interests...................................................................... 92

83BO.... Termination of appointment............................................................ 92

83BP..... Acting appointment.......................................................................... 93

83BQ.... Other terms and conditions of appointment.................................... 94

Division 4—Miscellaneous                                                                                      95

83BS..... Identity of AWA parties not to be disclosed................................... 95

83BT..... Publication of AWAs etc. by Employment Advocate..................... 96

Part V—Inspectors                                                                                                               97

84.......... Inspectors......................................................................................... 97

85.......... Identity cards.................................................................................... 97

86.......... Powers of inspectors........................................................................ 98

87.......... Inspector to investigate matters affecting safety of employees..... 100

88.......... Annual report................................................................................. 101

Part VA—Compliance etc. powers                                                                            102

88AA.... Secretary’s powers to obtain information etc................................ 102

88AB.... Certain excuses not available in relation to section 88AA requirements 105

88AC.... Protection from liability................................................................. 105

88AD.... Retention and copying etc. of documents...................................... 106

88AE..... Secretary or assistant may make and keep copies of documents... 107

88AF..... Protection of confidentiality of information................................... 107

88AG.... Delegation by Secretary.................................................................. 110

88AGA. Guidelines for the exercise or performance of powers or functions 110

88AH.... Relationship with other provisions about authorised officers and inspectors        111

88AI...... Annual review by Ombudsman of exercise of section 88AA power 112

Part VI—Dispute prevention and settlement                                                      113

Division 1A—Objects of Part                                                                               113

88A....... Objects of Part................................................................................ 113

Division 1—Functions of Commission generally                                       114

88B....... Performance of Commission’s functions under this Part............... 114

89.......... General functions of Commission.................................................. 115

89A....... Scope of industrial disputes........................................................... 115

89B....... Review of certain awards................................................................ 119

90.......... Commission to take into account the public interest..................... 119

90A....... Commission to have regard to operation of Superannuation Guarantee legislation when making National Wage Case decision........................................................................................... 120

91.......... Commission to encourage agreement on procedures for preventing and settling disputes      120

92.......... Commission to have regard to compliance with disputes procedures 120

93.......... Commission to take account of Racial Discrimination Act, Sex Discrimination Act, Disability Discrimination Act and Age Discrimination Act.................................................................. 120

93A....... Commission to take account of Family Responsibilities Convention 121

94.......... Limitation on powers of Commission relating to discrimination and preference    121

95.......... No automatic flow-on of terms of certain agreements.................... 121

96.......... Schemes of apprenticeship............................................................. 121

97.......... Safety, health and welfare of employees........................................ 122

98.......... Commission to act quickly............................................................. 122

98A....... Commission to avoid technicalities and facilitate fair conduct of proceedings        122

Division 2—Powers and procedures of Commission for dealing with industrial disputes           123

99.......... Notification of industrial disputes.................................................. 123

100........ Disputes to be dealt with by conciliation where possible.............. 123

101........ Findings as to industrial disputes................................................... 124

102........ Action to be taken where dispute referred for conciliation............ 124

103........ Completion of conciliation proceeding........................................... 125

104........ Arbitration...................................................................................... 125

105........ Exercise of arbitration powers by member who has exercised conciliation powers                126

106........ Allowable award matters to be dealt with by Full Bench.............. 127

107........ Reference of disputes to Full Bench............................................... 127

108........ President may deal with certain proceedings.................................. 130

109........ Review on application by Minister................................................ 131

110........ Procedure of Commission............................................................... 132

Division 3—Particular powers of Commission                                            134

111........ Particular powers of Commission.................................................. 134

111AAA Commission to cease dealing with industrial dispute in certain circumstances       136

111AA.. Recommendations by consent........................................................ 137

111A..... Hearings in relation to discriminatory awards................................ 138

113........ Power to set aside or vary awards.................................................. 138

113A..... Commission to include enterprise flexibility provisions in awards 140

113B..... Variation of award to give effect to agreement negotiated under enterprise flexibility provision            140

114........ Power to make further awards in settlement of industrial dispute etc. 141

119........ Compulsory conferences................................................................ 141

120........ Relief not limited to claim............................................................... 142

120A..... Orders of Commission on exceptional matters............................... 142

120B..... Commission to report on junior rates of pay................................. 143

121........ Power to override certain laws affecting public sector employment 143

123........ Power to provide special rates of wages........................................ 144

124........ Commission not to deal with claims for payments in relation to periods of industrial action                144

126........ Stand-down applications................................................................ 145

127........ Orders to stop or prevent industrial action.................................... 145

127AA.. Awards and orders dealing with rights of entry............................. 147

127A..... Unfair contracts with independent contractors: Court’s powers... 147

127B..... Court may make orders about unfair contracts.............................. 149

127C..... Application of sections 127A and 127B........................................ 149

128........ State authorities may be restrained from dealing with disputes..... 150

129........ Joint sessions of Commission........................................................ 150

130........ Reference of industrial dispute to local industrial board for report 151

131........ Boards of reference......................................................................... 151

132........ Discussions about conciliation and arbitration processes.............. 152

133........ Industry consultative councils........................................................ 152

134........ Power of inspection........................................................................ 152

Division 4—Ballots ordered by Commission                                               154

135........ Commission may order secret ballot.............................................. 154

136........ Application by members of organisation for secret ballot............. 155

137........ Scope of directions for secret ballots.............................................. 159

138........ Conduct of ballot............................................................................ 159

139........ Commission to have regard to result of ballot................................ 160

140........ Certain members not required to obey directions of organisation.. 160

Division 5—Common rules                                                                                   162

141........ Common rules................................................................................. 162

141A..... Reference of application for declaration to Full Bench.................. 164

141B..... Intervention by Minister of Victoria.............................................. 166

142........ Variation of common rules.............................................................. 166

142A..... Applying single common rule to a business of employer.............. 167

142B..... Application of section 109 to declarations under this Division..... 168

142C..... Common rule taken to be award..................................................... 168

Division 6—Awards of Commission                                                                 169

143........ Making and publication of awards etc............................................ 169

144........ Form of awards............................................................................... 173

145........ Date of awards................................................................................ 173

146........ Commencement of awards.............................................................. 173

147........ Term of awards............................................................................... 173

148........ Continuation of awards.................................................................. 173

149........ Persons bound by awards............................................................... 174

150........ Awards of Commission are final.................................................... 175

151........ Registrar to review operation of awards......................................... 175

152........ Awards to prevail over State laws and State awards...................... 176

153........ Validity of State laws and State awards......................................... 177

154........ Reprints of awards as varied.......................................................... 177

155........ Expressions used in awards............................................................ 177

Division 7—Disputes relating to boycotts                                                     178

156........ Application of Division.................................................................. 178

157........ Notification of disputes.................................................................. 178

158........ Powers of Commission................................................................... 178

159........ Exercise of powers.......................................................................... 179

160........ Parties............................................................................................. 179

161........ Application of other provisions of Act.......................................... 180

162........ Trade Practices Act and application laws not affected.................. 180

163........ Interpretation.................................................................................. 180

166A..... Restriction on certain actions in tort.............................................. 180

Part VIAAA—State and Territory laws etc. about redundancy payments by small businesses    183

167........ Certain small businesses not bound by requirement to pay redundancy pay         183

Part VIA—Minimum entitlements of employees                                              185

Division 2—Equal remuneration for work of equal value                     185

170BA.. Object............................................................................................. 185

170BB... Equal remuneration for work of equal value................................... 185

170BC... Orders requiring equal remuneration............................................... 185

170BD.. Orders only on application............................................................. 186

170BE... No order if adequate alternative remedy exists............................... 186

170BF... Immediate or progressive introduction of equal remuneration....... 187

170BG.. Employer not to reduce remuneration............................................ 187

170BH.. Division not to limit other rights.................................................... 187

170BHA.......................................................... Applications under this Division  187

170BI.... Additional effect of Division.......................................................... 188

Division 3—Termination of employment                                                       190

Subdivision A—Object, application and definitions                                          190

170CA.. Object............................................................................................. 190

170CB... Application..................................................................................... 190

170CBA Exclusions....................................................................................... 192

170CC... Regulations may provide for additional exclusions........................ 195

170CCA People’s rights, liabilities and obligations the same as if certain provisions of the regulations had been valid       195

170CD.. Definitions...................................................................................... 196

Subdivision B—Application to Commission for relief in respect of termination of employment     199

170CE... Application to Commission to deal with termination under this Subdivision         199

170CEAAFees for lodging applications under section 170CE...................... 201

170CEA Motions for dismissal of application for want of jurisdiction....... 203

170CF... Conciliation..................................................................................... 204

170CFA Elections to proceed to arbitration or to begin court proceedings.. 205

170CG.. Arbitration...................................................................................... 207

170CH.. Remedies on arbitration.................................................................. 208

170CI.... Orders made on arbitration are binding........................................... 210

170CIA. Representatives to disclose contingency fee agreements................ 211

170CIB. Commission may dismiss application if applicant fails to attend.. 212

170CJ.... Commission may order payment of costs...................................... 212

Subdivision C—Unlawful termination of employment by employer               214

170CK.. Employment not to be terminated on certain grounds................... 214

170CL... Employer to notify CES of proposed terminations in certain cases 217

170CM. Employer to give notice of termination.......................................... 217

170CN.. Employer not to contravene Commission order about employment termination   219

170CO.. Contravention of this Subdivision not an offence.......................... 219

170CP... Application to courts in relation to alleged contravention of section 170CK, 170CL, 170CM or 170CN             219

170CQ.. Proof of issues in relation to alleged contravention of section 170CK 220

170CR... Orders available to courts............................................................... 221

170CS... Costs............................................................................................... 222

170CT... Small claims procedure................................................................... 223

Subdivision D—Commission orders giving effect to Articles 12 and 13 of Convention    223

170FA... Employment termination orders creating rules of general application 223

170FB... Orders only on application............................................................. 224

170FC... No order if alternative exists........................................................... 224

170FD... Powers and procedures of Commission for dealing with applications 224

170FE... Commission’s powers not limited by Subdivision E..................... 224

Subdivision E—Commission orders after employer fails to consult trade union about terminations             225

170GA.. Orders by Commission where employer fails to consult trade union about terminations      225

170GB.. Orders only on application............................................................. 226

170GC.. No order if alternative remedy exists.............................................. 226

170GD.. Powers and procedures of Commission for dealing with applications 226

Subdivision F—Other rights relating to termination of employment           227

170HA.. Division not to limit other rights.................................................... 227

170HB.. Applications alleging harsh, unjust or unreasonable termination... 227

170HBA No second applications under section 170CE concerning same termination to be made         228

170HC.. Applications alleging contravention of section 170CK.................. 228

Subdivision G—Unmeritorious or speculative proceedings                            229

170HD.. Definitions...................................................................................... 229

170HE... Advisers not to encourage applicants to make, or to pursue, certain applications 230

170HF... Applications to the Court.............................................................. 230

170HH.. Evidentiary matters........................................................................ 231

170HI.... Order that the Court may make...................................................... 231

Division 4—Orders and proceedings                                                               232

170JA... Orders to be in writing.................................................................... 232

170JB.... When orders take effect.................................................................. 232

170JC.... Compliance with orders.................................................................. 232

170JD... Variation and revocation of orders.................................................. 232

170JE.... Application of sections 109, 110, 111, 128 and 129 to orders and proceedings under this Part            233

170JEA. Representation of employers......................................................... 233

170JEB. Reference of applications to Full Bench......................................... 233

170JEC. President may deal with certain applications................................. 235

170JF.... Appeals to Full Bench.................................................................... 236

170JG... Inconsistency with awards or other orders of Commission........... 236

170JH... Validity of State laws, awards etc.................................................. 236

Division 5—Parental leave                                                                                    237

170KA.. Effect of Division........................................................................... 237

170KB.. Application of Schedule 14............................................................ 238

170KC.. Regulations may prescribe adoption leave..................................... 238

Part VIB—Certified agreements                                                                               239

Division 1—Preliminary                                                                                          239

170L...... Object............................................................................................. 239

170LA... Functions of Commission............................................................... 239

170LB... Single business and single employer............................................... 239

170LC... Additional operation of Part........................................................... 240

170LD... Nominal expiry date....................................................................... 241

170LE... Valid majority................................................................................. 241

170LF... Working day................................................................................... 242

170LG... Paid rates award.............................................................................. 242

Division 2—Making agreements with constitutional corporations or the Commonwealth         243

170LH... What this Division covers.............................................................. 243

170LI.... Nature of agreement........................................................................ 243

170LJ.... Agreement with organisations of employees.................................. 243

170LK... Agreement with employees............................................................ 244

170LKA Certificate as to requested representation or invitation.................. 245

170LL... Greenfields agreement..................................................................... 246

170LM.. Making the application for certification......................................... 246

Division 3—Making agreements about industrial disputes and industrial situations    247

170LN... What this Division covers.............................................................. 247

170LO... Agreement about industrial dispute................................................ 247

170LP... Agreement about industrial situation.............................................. 247

170LQ... Multiple disputes and situations.................................................... 247

170LR... Approval by valid majority of employees..................................... 248

170LS.... Making the application for certification......................................... 248

Division 4—Certifying agreements                                                                   249

170LT... Certifying an agreement.................................................................. 249

170LU... When Commission to refuse to certify an agreement..................... 250

170LV... Other options open to Commission instead of refusing to certify an agreement    252

170LW.. Procedures for preventing and settling disputes............................. 253

Division 5—Effect of certified agreements                                                   254

170LX... When a certified agreement is in operation..................................... 254

170LY... Effect of a certified agreement in relation to awards and other certified agreements               255

170LZ... Effect of a certified agreement on Commonwealth laws or State laws, awards or agreements                255

Division 6—Persons bound by certified agreements                              257

170M.... Persons bound in Division 2 cases................................................. 257

170MA. Persons bound in Division 3 cases................................................. 257

170MB. Successor employers bound........................................................... 258

170MBACommission may make order about extent to which
successor employer bound by certified agreement......................... 259

Division 7—Extending, varying or terminating certified agreements 264

170MC. Extending the nominal expiry date.................................................. 264

170MD. Varying a certified agreement.......................................................... 264

170MDAVariation where discrimination between unionists and
non-unionists.................................................................................. 266

170ME.. Other options open to Commission instead of refusing to approve variation of an agreement              266

170MG. Terminating a certified agreement where valid majority approve at any time         267

170MH. Terminating a certified agreement in public interest after nominal expiry date       267

170MHATerminating an agreement in a way provided under
 agreement after nominal expiry date.............................................. 268

Division 8—Negotiations for certified agreements etc.                         269

170MI... Initiation of bargaining period......................................................... 269

170MJ.. Particulars to accompany notice..................................................... 270

170MK. When bargaining period begins....................................................... 270

170ML.. Protected action.............................................................................. 270

170MM Industrial action must not involve secondary boycott................... 272

170MN. Industrial action etc. must not be taken until after nominal expiry date of certain agreements and awards            272

170MO. Notice of action to be given............................................................ 273

170MP.. Negotiation must precede industrial action or lockout................... 275

170MQ. What happens if Commission orders a ballot................................. 276

170MR. Industrial action must be duly authorised...................................... 276

170MS.. What happens if application to certify agreement is not made within 21 days      277

170MT. Immunity provisions...................................................................... 277

170MU. Employer not to dismiss employee etc. for engaging in protected action               278

170MV. When bargaining period ends.......................................................... 279

170MW Power of Commission to suspend or terminate bargaining period. 279

170MWAPower of Commission in relation to new bargaining periods........ 282

170MX. What happens if Commission terminates a bargaining period under subsection 170MW(3) or (7)        283

170MY. Commission’s powers where section 170MX applies.................. 284

170MZ. Awards under section 170MX....................................................... 284

170N..... Commission not to arbitrate during bargaining period.................... 286

170NA.. Conciliation in respect of agreements............................................. 286

170NB.. Employers not to discriminate between unionist and non-unionist 286

Division 9—Prohibition of coercion in relation to agreements          288

170NC.. Coercion of persons to make, vary or terminate certified agreements etc.              288

Division 10—Enforcement and remedies                                                      289

170ND.. Penalty provisions.......................................................................... 289

170NE... Eligible court................................................................................... 289

170NF... Penalties for contravening penalty provisions............................... 289

170NG.. Injunctions...................................................................................... 291

170NH.. Reinstatement and compensation where employer contravenes section 170MU   291

Division 10A—Validation of certain pre-2 September 2004 agreements, variations, industrial action and lockouts                                                                                                 292

170NHA.................................................... Validation etc. of certain agreements  292

170NHB................................ Validation etc. of variations of certain agreements  292

170NHBAValidation of certain industrial action and lockouts..................... 293

170NHC............................................................. Definitions of permitted matter  293

Division 11—Miscellaneous                                                                                 295

170NI.... Complementary State laws............................................................. 295

Part VID—Australian workplace agreements (AWAs)                                296

Division 1—Preliminary                                                                                          296

170VA.. Interpretation.................................................................................. 296

170VB... Proposed AWAs and ancillary documents—interpretation........... 298

170VC... Scope of this Part........................................................................... 298

170VCA Functions of Commission............................................................... 299

Division 2—General rules about AWAs and ancillary documents   300

170VD.. AWAs and ancillary documents only have effect as provided by this Part            300

170VE... Collective agreements..................................................................... 300

Division 3—Making, varying or terminating an AWA                            301

170VF... Employer and employee may make an AWA................................ 301

170VG.. Content of AWA............................................................................ 301

170VH.. Nominal expiry date of AWA........................................................ 301

170VJ.... Period of operation of AWA.......................................................... 302

170VK.. Bargaining agents............................................................................ 302

170VL... Varying the terms of an AWA........................................................ 303

170VM. Terminating an AWA..................................................................... 303

Division 4—Filing AWAs and ancillary documents with Employment Advocate             305

170VN.. Filing AWAs and ancillary documents with Employment Advocate 305

170VO.. Filing requirements......................................................................... 305

170VP... Employer’s declaration must be accurate....................................... 307

Division 5—Approval of AWAs and ancillary documents                     308

Subdivision A—Preliminary                                                                                 308

170VPA Additional approval requirements for AWA and ancillary documents 308

Subdivision B—Approval by Employment Advocate                                          309

170VPB Approval of AWA by Employment Advocate.............................. 309

170VPC Approval of variation agreement by Employment Advocate........ 310

170VPD Approval of other ancillary documents by Employment Advocate 311

170VPE. Protocol for referring AWAs and variation agreements to the Commission            311

170VPF. Employment Advocate must issue approval, refusal or referral notice.. 311

Subdivision C—Approval by Commission                                                           312

170VPFAWithdrawal of AWA or variation agreement................................. 312

170VPG Approval of AWA by Commission............................................... 312

170VPH Approval of variation agreement by Commission.......................... 313

170VPI.. Commission must issue approval or refusal notice etc.................. 313

Subdivision D—Miscellaneous                                                                             314

170VPJ. Undertakings deemed to be included in AWA................................ 314

170VPK Employment Advocate to issue copies of approved AWAs and ancillary documents           314

Division 6—Effect of an AWA                                                                              315

170VQ.. Effect of AWA on awards and agreements..................................... 315

170VR... Effect of AWA on other laws......................................................... 316

170VS... AWA binds employer’s successor................................................. 317

170VT... Parties must not breach AWA........................................................ 317

170VU.. Industrial action etc. by party to AWA......................................... 317

Division 7—Enforcement and remedies                                                         319

170VV... Penalties for contravening this Part................................................ 319

170VW.. Damages for breach of AWA.......................................................... 319

170VX.. Compensation to new employee for shortfall in entitlements....... 319

170VZ... Injunctions...................................................................................... 320

170W.... Interest on judgment etc................................................................. 320

170WA. Small claims procedure................................................................... 320

Division 8—Limited immunity for industrial action                                  322

170WB.. Interpretation.................................................................................. 322

170WC.. Limited immunity conferred........................................................... 323

170WD. Immunity conditional on giving notice........................................... 323

170WE.. Employer not to dismiss, prejudice etc. an employee for taking AWA industrial action       324

Division 8A—Validation of certain AWAs and variation agreements made before 2 September 2004                                                                                                                    325

170WEA........................................................... Validation etc. of certain AWAs  325

170WEB...................................... Validation etc. of certain variation agreements  325

Division 9—Miscellaneous                                                                                    327

170WF.. Hindering AWA negotiations......................................................... 327

170WG. Persons must not apply duress or make false statements in connection with AWA etc.       327

170WH. Employer must give copies of documents to employee................. 327

170WHAIntervention not permitted............................................................. 328

170WHBIdentity of AWA parties not to be disclosed................................. 328

170WHCIndustrial Registrar not to publish AWA determinations.............. 329

170WHDHearings to be in private................................................................ 329

170WI... Evidence.......................................................................................... 329

170WJ... Signature on behalf of body corporate............................................ 330

170WK. AWAs with Commonwealth employees........................................ 330

170WKAComplementary State laws............................................................ 330

170WL.. Regulations..................................................................................... 331

Part VIE—No-disadvantage test                                                                               332

170X..... Interpretation.................................................................................. 332

170XA.. When does an agreement pass the no-disadvantage test?............... 333

170XB.. Special case—employee eligible for the Supported Wage System. 333

170XC.. Special case—employee undertaking approved traineeship........... 334

170XD.. Special case—employee undertaking approved apprenticeship.... 334

170XE... Determination of designated award or awards for the purposes of an AWA          335

170XF... Determination of designated award or awards for the purposes of a certified agreement       336

Part VII—Co-operation with the States                                                                 337

171........ Co-operation with States by President.......................................... 337

172........ Co-operation with States by Industrial Registrar........................... 337

173........ Member of Commission may exercise powers under prescribed State laws           337

174........ Reference of dispute (other than demarcation dispute) to State authority for determination 338

174A..... Reference of demarcation dispute to State authority for determination  339

175........ Joint proceedings............................................................................ 341

176........ Conference with State authorities................................................... 342

Part VIII—Compliance                                                                                                    343

Division 1—Penalties and other remedies for contravention of awards and orders       343

177A..... Definition of court of competent jurisdiction.................................. 343

178........ Imposition and recovery of penalties............................................. 343

179........ Recovery of wages etc.................................................................... 346

179A..... Interest up to judgment.................................................................. 347

179B..... Interest on judgment....................................................................... 347

179C..... Plaintiffs may choose small claims procedure in magistrates’ courts 348

179D..... Small claims procedure................................................................... 348

180........ Unclaimed moneys......................................................................... 349

Division 3—Cancellation and suspension of awards and orders       350

187........ Cancellation and suspension of awards and orders........................ 350

Part VIIIA—Payments in relation to periods of industrial action           352

187AA.. Payments not to be made or accepted in relation to periods of industrial action    352

187AB.. Organisations not to take action for payments in relation to periods of industrial action      353

187AC.. Applications to the Court.............................................................. 353

187AD.. Orders that the Court may make.................................................... 354

 


An Act relating to workplace relations, and for other purposes

  

Part IPreliminary

  

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.

BCII Act means the Building and Construction Industry Improvement Act 2005.

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 IAAustralian Fair Pay Commission

Division 1Preliminary

7F  Definitions

                   In this Part:

AFPC means the Australian Fair Pay Commission established by section 7G.

AFPC Chair means the AFPC Chair appointed under section 7P.

AFPC Commissioner means an AFPC Commissioner appointed under section 7Y.

AFPC Secretariat means the AFPC Secretariat established under section 7ZG.

Director of the Secretariat means the Director of the Secretariat appointed under section 7ZK.

wage review means a review conducted by the AFPC to determine whether it should exercise any of its wage-setting powers.

wage-setting decision means a decision made by the AFPC in the exercise of its wage-setting powers.

wage-setting function has the meaning given by subsection 7I(1).

wage-setting powers means the powers of the AFPC under Division 2 of Part VA.


 

Division 2Australian Fair Pay Commission

Subdivision AEstablishment and functions

7G  Establishment

             (1)  The Australian Fair Pay Commission is established by this section.

             (2)  The AFPC is to consist of:

                     (a)  the AFPC Chair; and

                     (b)  4 AFPC Commissioners.

7H  Functions of the AFPC

                   The functions of the AFPC are as follows:

                     (a)  its wage-setting function as set out in subsection 7I(1);

                     (b)  any other functions conferred on the AFPC under this Act or any other Act;

                     (c)  any other functions conferred on the AFPC by regulations made under this Act or any other Act;

                     (d)  to undertake activities to promote public understanding of matters relevant to its wage-setting and other functions.

Subdivision BAFPC’s wage-setting function

7I  AFPC’s wage-setting function

The AFPC’s wage-setting function

             (1)  The AFPC’s wage-setting function is to:

                     (a)  conduct wage reviews; and

                     (b)  exercise its wage-setting powers as necessary depending on the outcomes of wage reviews.

Note:          The main wage-setting powers of the AFPC cover the following matters (within the meaning of Division 2 of Part VA):

(a)           adjusting the standard FMW (short for Federal Minimum Wage);

(b)           determining or adjusting special FMWs for junior employees, employees with disabilities or employees to whom training arrangements apply;

(c)           determining or adjusting basic periodic rates of pay and basic piece rates of pay payable to employees or employees of particular classifications;

(d)           determining or adjusting casual loadings.

             (2)  During the period (the interim period) from the commencement of this Part to the commencement of Division 2 of Part VA, the AFPC has the function of gathering information (including by undertaking or commissioning research, or consulting with any person or body) for the purpose of assisting it to perform its wage-setting function after that Division has commenced. When performing its wage-setting function, the AFPC may have regard to any information so gathered during the interim period.

7J  AFPC’s wage-setting parameters

                   The objective of the AFPC in performing its wage-setting function is to promote the economic prosperity of the people of Australia having regard to the following:

                     (a)  the capacity for the unemployed and low paid to obtain and remain in employment;

                     (b)  employment and competitiveness across the economy;

                     (c)  providing a safety net for the low paid;

                     (d)  providing minimum wages for junior employees, employees to whom training arrangements apply and employees with disabilities that ensure those employees are competitive in the labour market.

7K  Wage reviews and wage-setting decisions

             (1)  The AFPC may determine the following:

                     (a)  the timing and frequency of wage reviews;

                     (b)  the scope of particular wage reviews;

                     (c)  the manner in which wage reviews are to be conducted;

                     (d)  when wage-setting decisions are to come into effect.

             (2)  For the purposes of performing its wage-setting function, the AFPC may inform itself in any way it thinks appropriate, including by:

                     (a)  undertaking or commissioning research; or

                     (b)  consulting with any other person, body or organisation; or

                     (c)  monitoring and evaluating the impact of its wage-setting decisions.

             (3)  Subsections (1) and (2) have effect subject to this Act and any regulations made under this Act.

             (4)  The AFPC’s wage-setting decisions must:

                     (a)  be in writing; and

                     (b)  be expressed as decisions of the AFPC as a body; and

                     (c)  include reasons for the decisions, expressed as reasons of the AFPC as a body.

A wage-setting decision is not a legislative instrument.

7L  Constitution of the AFPC for wage-setting powers

             (1)  For the purposes of exercising its wage-setting powers, the AFPC must be constituted by:

                     (a)  the AFPC Chair; and

                     (b)  the 4 AFPC Commissioners.

             (2)  However, if the AFPC Chair considers it necessary in circumstances where AFPC Commissioners are unavailable, the AFPC Chair may determine that, for the purposes of exercising its wage-setting powers in those circumstances, the AFPC is to be constituted by:

                     (a)  the AFPC Chair; and

                     (b)  no fewer than 2 AFPC Commissioners.

7M  Publishing wage-setting decisions etc.

             (1)  The AFPC must publish its wage-setting decisions.

             (2)  The AFPC may, as it thinks appropriate, publish other information about wages or its wage-setting function.

             (3)  Publishing under subsection (1) or (2) may be done in any way the AFPC thinks appropriate.

Subdivision COperation of the AFPC

7N  AFPC to determine its own procedures

             (1)  The AFPC may determine the procedures it will use in performing its functions.

             (2)  Subsection (1) has effect subject to Subdivision B and any regulations made under subsection (3).

             (3)  The regulations may prescribe procedures to be used by the AFPC for all or for specified purposes.

7O  Annual report

                   The AFPC must, as soon as practicable after the end of each financial year, give to the Minister a report on the operation of the AFPC for presentation to the Parliament.

Subdivision DAFPC Chair

7P  Appointment

             (1)  The AFPC Chair is to be appointed by the Governor-General by written instrument.

             (2)  The AFPC Chair may be appointed on a full-time or part-time basis and holds office for the period specified in his or her instrument of appointment. The period must not exceed 5 years.

             (3)  To be appointed as AFPC Chair, a person must have a high level of skills and experience in business or economics.

7Q  Remuneration

             (1)  The AFPC Chair is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the AFPC Chair is to be paid the remuneration that is prescribed.

             (2)  The AFPC Chair is to be paid the allowances that are prescribed.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973.

7R  Leave of absence

             (1)  If the AFPC Chair is appointed on a full-time basis:

                     (a)  the AFPC Chair has the recreation leave entitlements that are determined by the Remuneration Tribunal; and

                     (b)  the Minister may grant the AFPC Chair leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

             (2)  If the AFPC Chair is appointed on a part-time basis, the Minister may grant leave of absence to the AFPC Chair on the terms and conditions that the Minister determines.

7S  Engaging in other paid employment

                   If the AFPC Chair is appointed on a full-time basis, the AFPC Chair must not engage in paid employment outside the duties of his or her office without the Minister’s approval.

7T  Disclosure of interests

                   The AFPC Chair must give written notice to the Minister of all interests (financial or otherwise) that the AFPC Chair has or acquires and that could conflict with the proper performance of his or her duties.

7U  Resignation

             (1)  The AFPC Chair may resign his or her appointment by giving the Governor-General a written resignation.

             (2)  The resignation takes effect on the day it is received by the Governor-General or, if a later day is specified in the resignation, on that later day.

7V  Termination of appointment

             (1)  The Governor-General may terminate the appointment of the AFPC Chair if:

                     (a)  the AFPC Chair:

                              (i)  becomes bankrupt; or

                             (ii)  applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

                            (iii)  compounds with his or her creditors; or

                            (iv)  makes an assignment of his or her remuneration for the benefit of his or her creditors; or

                     (b)  the AFPC Chair fails, without reasonable excuse, to comply with section 7T; or

                     (c)  the AFPC Chair has or acquires interests (including by being an employer or employee) that the Minister considers conflict unacceptably with the proper performance of the AFPC Chair’s duties; or

                     (d)  if the AFPC Chair is appointed on a full-time basis:

                              (i)  the AFPC Chair engages, except with the Minister’s approval, in paid employment outside the duties of his or her office; or

                             (ii)  the AFPC Chair is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

                     (e)  if the AFPC Chair is appointed on a part-time basis—the AFPC Chair is absent, except on leave of absence, to an extent that the Minister considers excessive.

             (2)  Subject to subsections (3), (4) and (5), the Governor-General may terminate the appointment of the AFPC Chair for misbehaviour or physical or mental incapacity.

             (3)  If the AFPC Chair:

                     (a)  is an eligible employee for the purposes of the Superannuation Act 1976; and

                     (b)  has not reached his or her maximum retiring age within the meaning of that Act;

his or her appointment cannot be terminated for physical or mental incapacity unless the CSS Board has given a certificate under section 54C of that Act.

             (4)  If the AFPC Chair:

                     (a)  is a member of the superannuation scheme established by deed under the Superannuation Act 1990; and

                     (b)  is under 60 years of age;

his or her appointment cannot be terminated for physical or mental incapacity unless the PSS Board has given a certificate under section 13 of that Act.

             (5)  If the AFPC Chair:

                     (a)  is an ordinary employer-sponsored member of PSSAP, within the meaning of the Superannuation Act 2005; and

                     (b)  is under 60 years of age;

his or her appointment cannot be terminated on the ground of physical or mental incapacity unless the Board (within the meaning of that Act) has given an approval and certificate under section 43 of that Act.

7W  Other terms and conditions

                   The AFPC Chair holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.

7X  Acting AFPC Chair

             (1)  The Minister may appoint a person who meets the requirements set out in subsection 7P(3) to act as the AFPC Chair:

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

                     (b)  during any period, or during all periods, when the AFPC Chair 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 an appointment 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.

Subdivision EAFPC Commissioners

7Y  Appointment

             (1)  An AFPC Commissioner is to be appointed by the Governor-General by written instrument.

             (2)  An AFPC Commissioner holds office on a part-time basis for the period specified in his or her instrument of appointment. The period must not exceed 4 years.

             (3)  To be appointed as an AFPC Commissioner, a person must have experience in one or more of the following areas:

                     (a)  business;

                     (b)  economics;

                     (c)  community organisations;

                     (d)  workplace relations.

7Z  Remuneration

             (1)  An AFPC Commissioner is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, an AFPC Commissioner is to be paid the remuneration that is prescribed.

             (2)  An AFPC Commissioner is to be paid the allowances that are prescribed.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973.

7ZA  Leave of absence

                   The AFPC Chair may grant leave of absence to an AFPC Commissioner on the terms and conditions that the AFPC Chair determines.

7ZB  Disclosure of interests

                   An AFPC Commissioner must give written notice to the Minister of all interests (financial or otherwise) that the AFPC Commissioner has or acquires and that could conflict with the proper performance of his or her duties.

7ZC  Resignation

             (1)  An AFPC Commissioner may resign his or her appointment by giving the Governor-General a written resignation.

             (2)  The resignation takes effect on the day it is received by the Governor-General or, if a later day is specified in the resignation, on that later day.

7ZD  Termination of appointment

             (1)  The Governor-General may terminate the appointment of an AFPC Commissioner if:

                     (a)  the AFPC Commissioner:

                              (i)  becomes bankrupt; or

                             (ii)  applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

                            (iii)  compounds with his or her creditors; or

                            (iv)  makes an assignment of his or her remuneration for the benefit of his or her creditors; or

                     (b)  the AFPC Commissioner fails, without reasonable excuse, to comply with section 7ZB; or

                     (c)  the AFPC Commissioner has or acquires interests (including by being an employer or employee) that the Minister considers conflict unacceptably with the proper performance of the AFPC Commissioner’s duties; or

                     (d)  the AFPC Commissioner is absent, except on leave of absence, to an extent that the Minister considers excessive.

             (2)  Subject to subsections (3), (4) and (5), the Governor-General may terminate the appointment of an AFPC Commissioner for misbehaviour or physical or mental incapacity.

             (3)  If an AFPC Commissioner:

                     (a)  is an eligible employee for the purposes of the Superannuation Act 1976; and

                     (b)  has not reached his or her maximum retiring age within the meaning of that Act;

his or her appointment cannot be terminated for physical or mental incapacity unless the CSS Board has given a certificate under section 54C of that Act.

             (4)  If an AFPC Commissioner:

                     (a)  is a member of the superannuation scheme established by deed under the Superannuation Act 1990; and

                     (b)  is under 60 years of age;

his or her appointment cannot be terminated for physical or mental incapacity unless the PSS Board has given a certificate under section 13 of that Act.

             (5)  If an AFPC Commissioner:

                     (a)  is an ordinary employer-sponsored member of PSSAP, within the meaning of the Superannuation Act 2005; and

                     (b)  is under 60 years of age;

his or her appointment cannot be terminated on the ground of physical or mental incapacity unless the Board (within the meaning of that Act) has given an approval and certificate under section 43 of that Act.

7ZE  Other terms and conditions

                   An AFPC Commissioner holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.

7ZF  Acting AFPC Commissioners

             (1)  The Minister may appoint a person who meets the requirement set out in subsection 7Y(3) to act as an AFPC Commissioner:

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

                     (b)  during any period, or during all periods, when an AFPC Commissioner is acting as AFPC Chair, 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 an appointment 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.


 

Division 3AFPC Secretariat

Subdivision AEstablishment and function

7ZG  Establishment

             (1)  The AFPC Secretariat is established by this section.

             (2)  The AFPC Secretariat is to consist of:

                     (a)  the Director of the Secretariat; and

                     (b)  the staff of the Secretariat.

7ZH  Function

                   The function of the AFPC Secretariat is to assist the AFPC in the performance of the AFPC’s functions.

Subdivision BOperation of the AFPC Secretariat

7ZI  AFPC Chair may give directions

             (1)  The AFPC Chair may give directions to the Director of the Secretariat about the performance of the function of the AFPC Secretariat.

             (2)  The Director of the Secretariat must ensure that a direction given under subsection (1) is complied with.

             (3)  To avoid doubt, the AFPC Chair must not give directions under subsection (1) in relation to the performance of functions, or exercise of powers, under the Financial Management and Accountability Act 1997 or the Public Service Act 1999.

7ZJ  Annual report

                   The Director of the Secretariat must, as soon as practicable after the end of each financial year, give to the Minister a report on the operation of the AFPC Secretariat for presentation to the Parliament.

Subdivision CThe Director of the Secretariat

7ZK  Appointment

             (1)  The Director of the Secretariat is to be appointed by the Minister by written instrument.

             (2)  The Director of the Secretariat holds office on a full-time basis for the period specified in his or her instrument of appointment. The period must not exceed 5 years.

7ZL  Remuneration

             (1)  The Director of the Secretariat is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Director of the Secretariat is to be paid the remuneration that is prescribed.

             (2)  The Director of the Secretariat is to be paid the allowances that are prescribed.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973.

7ZM  Leave of absence

             (1)  The Director of the Secretariat has the recreation leave entitlements that are determined by the Remuneration Tribunal.

             (2)  The Minister may grant the Director of the Secretariat leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

7ZN  Engaging in other paid employment

                   The Director of the Secretariat must not engage in paid employment outside the duties of his or her office without the Minister’s approval.

7ZO  Disclosure of interests

                   The Director of the Secretariat must give written notice to the Minister of all interests (financial or otherwise) that the Director of the Secretariat has or acquires and that could conflict with the proper performance of his or her duties.

7ZP  Resignation

             (1)  The Director of the Secretariat may resign his or her appointment by giving the Minister a written resignation.

             (2)  The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.

7ZQ  Termination of appointment

             (1)  The Minister may terminate the appointment of the Director of the Secretariat if:

                     (a)  the Director of the Secretariat:

                              (i)  becomes bankrupt; or

                             (ii)  applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

                            (iii)  compounds with his or her creditors; or

                            (iv)  makes an assignment of his or her remuneration for the benefit of his or her creditors; or

                     (b)  the Director of the Secretariat fails, without reasonable excuse, to comply with section 7ZO; or

                     (c)  the Director of the Secretariat has or acquires interests that the Minister considers conflict unacceptably with the proper performance of the Director of the Secretariat’s duties; or

                     (d)  the Director of the Secretariat engages, except with the Minister’s approval, in paid employment outside the duties of his or her office; or

                     (e)  the Director of the Secretariat is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months.

             (2)  The Minister must terminate the appointment of the Director of the Secretariat if the Minister is of the opinion that the performance of the Director of the Secretariat has been unsatisfactory for a significant period of time.

             (3)  Subject to subsections (4), (5) and (6), the Minister may terminate the appointment of the Director of the Secretariat for misbehaviour or physical or mental incapacity.

             (4)  If the Director of the Secretariat:

                     (a)  is an eligible employee for the purposes of the Superannuation Act 1976; and

                     (b)  has not reached his or her maximum retiring age within the meaning of that Act;

his or her appointment cannot be terminated for physical or mental incapacity unless the CSS Board has given a certificate under section 54C of that Act.

             (5)  If the Director of the Secretariat:

                     (a)  is a member of the superannuation scheme established by deed under the Superannuation Act 1990; and

                     (b)  is under 60 years of age;

his or her appointment cannot be terminated for physical or mental incapacity unless the PSS Board has given a certificate under section 13 of that Act.

             (6)  If the Director of the Secretariat:

                     (a)  is an ordinary employer-sponsored member of PSSAP, within the meaning of the Superannuation Act 2005; and

                     (b)  is under 60 years of age;

his or her appointment cannot be terminated on the ground of physical or mental incapacity unless the Board (within the meaning of that Act) has given an approval and certificate under section 43 of that Act.

7ZR  Other terms and conditions

                   The Director of the Secretariat holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.

7ZS  Acting Director of the Secretariat

             (1)  The Minister may appoint a person to act as the Director of the Secretariat:

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

                     (b)  during any period, or during all periods, when the Director of the Secretariat 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 an appointment 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.

Subdivision DStaff and consultants

7ZT  Staff

             (1)  The staff of the AFPC Secretariat are to be persons engaged under the Public Service Act 1999.

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

                     (a)  the Director of the Secretariat and the staff of the AFPC Secretariat together constitute a Statutory Agency; and

                     (b)  the Director of the Secretariat is the Head of that Statutory Agency.

7ZU  Consultants

                   The Director of the Secretariat may, on behalf of the Commonwealth, engage persons having suitable qualifications and experience as consultants to the AFPC or the AFPC Secretariat. The terms and conditions of the engagement of a person are those determined by the Director of the Secretariat in writing.


 

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, the BCII 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, the BCII 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 BCII 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, the BCII 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 BCII 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

            &