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Workplace Relations Act 1996

  • - C2009C00075
  • In force - Superseded Version
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Act No. 86 of 1988 as amended, taking into account amendments up to Act No. 135 of 2008
An Act relating to workplace relations, and for other purposes
Administered by: Attorney-General's; Education, Employment and Workplace Relations
Registered 02 Feb 2009
Start Date 23 Jun 2008
End Date 30 Jun 2009
Table of contents.
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Collapse Volume 1Volume 1
Collapse Part 1—PreliminaryPart 1—Preliminary
1 Short title [see Note 1]
2 Commencement [see Note 1]
3 Principal object
4 Definitions
5 Employee
6 Employer
7 Employment
8 Schedules 1, 6, 7, 7A, 7B, 8, and 9 have effect
9 Schedule 10 has effect
10 Act binds Crown
11 Modifications for Christmas Island and Cocos (Keeling) Islands
12 Exclusion of persons insufficiently connected with Australia
13 Extraterritorial application
14 Act not to apply so as to exceed Commonwealth power
15 Application of Criminal Code
16 Act excludes some State and Territory laws
17 Awards, agreements and Commission orders prevail over State and Territory law etc.
18 Act may exclude State and Territory laws in other cases
Expand Part 2—Australian Fair Pay CommissionPart 2—Australian Fair Pay Commission
Expand Part 3—Australian Industrial Relations CommissionPart 3—Australian Industrial Relations Commission
Expand Part 4—Australian Industrial RegistryPart 4—Australian Industrial Registry
Expand Part 5—Workplace Authority DirectorPart 5—Workplace Authority Director
Expand Part 5A—Workplace OmbudsmanPart 5A—Workplace Ombudsman
Expand Part 6—Workplace inspectorsPart 6—Workplace inspectors
Expand Part 7—The Australian Fair Pay and Conditions StandardPart 7—The Australian Fair Pay and Conditions Standard
Expand Part 8—Workplace agreementsPart 8—Workplace agreements
Expand Part 9—Industrial actionPart 9—Industrial action
Expand Part 10—AwardsPart 10—Awards
Expand Part 10A—Award modernisationPart 10A—Award modernisation
Expand Part 11—Transmission of business rulesPart 11—Transmission of business rules
Expand Part 12—Minimum entitlements of employeesPart 12—Minimum entitlements of employees
Expand Part 13—Dispute resolution processesPart 13—Dispute resolution processes
Expand Part 14—CompliancePart 14—Compliance
Expand Part 15—Right of entryPart 15—Right of entry
Expand Part 16—Freedom of associationPart 16—Freedom of association
Expand Part 17—OffencesPart 17—Offences
Expand Part 18—CostsPart 18—Costs
Expand Part 19—MiscellaneousPart 19—Miscellaneous
Expand Part 20—Jurisdiction of the Federal Court of Australia and Federal Magistrates CourtPart 20—Jurisdiction of the Federal Court of Australia and Federal Magistrates Court
Expand Part 21—Matters referred by VictoriaPart 21—Matters referred by Victoria
Expand Part 22—Sham arrangementsPart 22—Sham arrangements
Expand Part 23—School‑based apprentices and traineesPart 23—School‑based apprentices and trainees
Expand Volume 2Volume 2
Volume 3

Workplace Relations Act 1996

Act No. 86 of 1988 as amended

This compilation was prepared on 6 January 2009
taking into account amendments up to Act No. 135 of 2008

Volume 1 includes:       Table of Contents
                                    Sections 1 – 919

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
                                    Schedules 1 – 10

Volume 3 includes:       Note 1
                                    Table of Acts
                                    Act Notes
                                    Table of Amendments
                                    Repeal Table
                                    Note 2
                                    Table A
                                    Renumbering Table

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

 

 

 


Contents

Part 1—Preliminary                                                                                                               1

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

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

3............ Principal object................................................................................... 1

4............ Definitions.......................................................................................... 2

5............ Employee.......................................................................................... 17

6............ Employer.......................................................................................... 18

7............ Employment..................................................................................... 19

8............ Schedules 1, 6, 7, 7A, 7B, 8, and 9 have effect................................. 19

9............ Schedule 10 has effect....................................................................... 19

10.......... Act binds Crown.............................................................................. 20

11.......... Modifications for Christmas Island and Cocos (Keeling) Islands.... 20

12.......... Exclusion of persons insufficiently connected with Australia......... 20

13.......... Extraterritorial application................................................................ 21

14.......... Act not to apply so as to exceed Commonwealth power................ 22

15.......... Application of Criminal Code.......................................................... 24

16.......... Act excludes some State and Territory laws.................................... 24

17.......... Awards, agreements and Commission orders prevail over State and Territory law etc.         26

18.......... Act may exclude State and Territory laws in other cases................. 27

Part 2—Australian Fair Pay Commission                                                                28

Division 1—Preliminary                                                                                            28

19.......... Definitions........................................................................................ 28

Division 2—Australian Fair Pay Commission                                                29

Subdivision A—Establishment and functions                                                      29

20.......... Establishment................................................................................... 29

21.......... Functions of the AFPC.................................................................... 29

Subdivision B—AFPC’s wage‑setting function                                                   29

22.......... AFPC’s wage‑setting function......................................................... 29

23.......... AFPC’s wage‑setting parameters..................................................... 30

24.......... Wage reviews and wage‑setting decisions......................................... 30

25.......... Constitution of the AFPC for wage‑setting powers........................ 31

26.......... Publishing wage‑setting decisions etc............................................... 31

Subdivision C—Operation of the AFPC                                                                31

27.......... AFPC to determine its own procedures........................................... 31

28.......... Annual report................................................................................... 32

Subdivision D—AFPC Chair                                                                                   32

29.......... Appointment.................................................................................... 32

30.......... Remuneration.................................................................................... 32

31.......... Leave of absence............................................................................... 32

32.......... Engaging in other paid employment................................................. 33

33.......... Disclosure of interests...................................................................... 33

34.......... Resignation....................................................................................... 33

35.......... Termination of appointment............................................................ 33

36.......... Other terms and conditions.............................................................. 35

37.......... Acting AFPC Chair.......................................................................... 35

Subdivision E—AFPC Commissioners                                                                 35

38.......... Appointment.................................................................................... 35

39.......... Remuneration.................................................................................... 36

40.......... Leave of absence............................................................................... 36

41.......... Disclosure of interests...................................................................... 36

42.......... Resignation....................................................................................... 36

43.......... Termination of appointment............................................................ 36

44.......... Other terms and conditions.............................................................. 38

45.......... Acting AFPC Commissioners.......................................................... 38

Division 3—AFPC Secretariat                                                                               39

Subdivision A—Establishment and function                                                        39

46.......... Establishment................................................................................... 39

47.......... Function............................................................................................ 39

Subdivision B—Operation of the AFPC Secretariat                                          39

48.......... AFPC Chair may give directions...................................................... 39

49.......... Annual report................................................................................... 39

Subdivision C—The Director of the Secretariat                                                 40

50.......... Appointment.................................................................................... 40

51.......... Remuneration.................................................................................... 40

52.......... Leave of absence............................................................................... 40

53.......... Engaging in other paid employment................................................. 40

54.......... Disclosure of interests...................................................................... 40

55.......... Resignation....................................................................................... 41

56.......... Termination of appointment............................................................ 41

57.......... Other terms and conditions.............................................................. 42

58.......... Acting Director of the Secretariat..................................................... 42

Subdivision D—Staff and consultants                                                                   43

59.......... Staff.................................................................................................. 43

60.......... Consultants....................................................................................... 43

Part 3—Australian Industrial Relations Commission                                      44

Division 1—Establishment of Commission                                                     44

61.......... Establishment of Commission.......................................................... 44

62.......... Functions of Commission................................................................. 44

63.......... Appointment of Commission members etc...................................... 44

64.......... Qualifications for appointment........................................................ 45

65.......... Seniority........................................................................................... 46

66.......... Performance of duties on part‑time basis......................................... 46

67.......... Dual federal and State appointments................................................ 47

68.......... Performance of duties by dual federal and State appointees............ 48

69.......... Dual federal appointments............................................................... 48

70.......... Appointment of a Judge as President not to affect tenure etc......... 48

71.......... Tenure of Commission members...................................................... 49

72.......... Acting President............................................................................... 49

73.......... Acting Vice President....................................................................... 50

74.......... Acting Senior Deputy President....................................................... 50

75.......... Acting Deputy Presidents................................................................ 51

76.......... Oath or affirmation of office............................................................. 51

77.......... Discharge of Commission’s business............................................... 52

78.......... Duty of Commission members......................................................... 52

79.......... Remuneration and allowances of Presidential Members etc............. 52

80.......... Application of Judges’ Pensions Act............................................... 54

81.......... Remuneration and allowances of Commissioners............................. 56

82.......... Removal of Presidential Member from office................................... 56

83.......... Outside employment of Commissioner............................................ 56

84.......... Leave of absence of Commissioner................................................... 57

85.......... Disclosure of interest by Commission members.............................. 57

86.......... Termination of appointment of Commissioner................................ 58

87.......... Resignation by Commission member............................................... 58

Division 2—Organisation of Commission                                                        59

88.......... Manner in which Commission may be constituted.......................... 59

89.......... Powers exercisable by single member of Commission...................... 59

90.......... Functions and powers conferred on members.................................. 59

91.......... Exercise of Commission powers....................................................... 60

92.......... Continuation of hearing by Commission.......................................... 60

93.......... Commission divided in opinion........................................................ 61

94.......... Arrangement of business of Commission......................................... 61

95.......... Panels of Commission for particular industries................................ 62

96.......... Delegation by President.................................................................... 62

97.......... Protection of Commission members................................................. 63

98.......... Co‑operation with the States by President...................................... 63

99.......... Co‑operation with the States by Registrar....................................... 63

Division 3—Representation and intervention                                               64

100........ Representation of parties before Commission................................. 64

101........ Intervention generally....................................................................... 66

102........ Particular rights of intervention of Minister..................................... 66

Division 4—General matters relating to the powers and procedures of the Commission          67

Subdivision A—General matters Commission to take into account                67

103........ Commission to take into account the public interest....................... 67

104........ Commission to take into account discrimination issues................... 67

105........ Commission to take account of Racial Discrimination Act, Sex Discrimination Act, Disability Discrimination Act and Age Discrimination Act.................................................................... 68

106........ Commission to take account of Family Responsibilities Convention 68

107........ Safety, health and welfare of employees.......................................... 68

108........ Commission to act quickly............................................................... 68

109........ Commission to avoid technicalities and facilitate fair conduct of proceedings        69

Subdivision B—Particular powers and procedures of the Commission         69

110........ Procedure of Commission................................................................. 69

111........ Particular powers of Commission.................................................... 69

112........ Reference of proceedings to Full Bench........................................... 72

113........ President may deal with certain proceedings.................................... 73

114........ Review on application by Minister.................................................. 74

115........ Compulsory conferences.................................................................. 75

116........ Power to override certain laws affecting public sector employment 75

117........ State authorities may be restrained from dealing with matter that is before the Commission 76

118........ Joint sessions of Commission.......................................................... 76

119........ Revocation and suspension of awards and orders............................ 77

Division 5—Appeals to Full Bench and references to Court                79

120........ Appeals to Full Bench relating to matters arising other than under the Registration and Accountability of Organisations Schedule..................................................................... 79

121........ Appeals to Full Bench relating to matters arising under the Registration and Accountability of Organisations Schedule etc..................................................................................................... 81

122........ References to Court by Commission on question of law................. 83

Division 6—Miscellaneous                                                                                      84

123........ Seals of Commission......................................................................... 84

124........ Rules of Commission........................................................................ 84

125........ President must provide certain information etc. to the Minister..... 85

126........ Annual report of Commission.......................................................... 85

Part 4—Australian Industrial Registry                                                                     86

Division 1—Interpretation                                                                                       86

127........ Definition of State industrial body.................................................... 86

Division 2—Establishment and functions of Australian Industrial Registry       87

128........ Australian Industrial Registry.......................................................... 87

129........ Functions of the Industrial Registry................................................. 87

130........ Registries.......................................................................................... 89

131........ Seals of the Registry......................................................................... 89

132........ Annual report of Industrial Registry................................................ 89

Division 3—Registrars                                                                                              90

133........ Industrial Registrar........................................................................... 90

134........ Tenure of office of Industrial Registrar............................................ 91

135........ Remuneration and allowances of Industrial Registrar....................... 92

136........ Outside employment of Industrial Registrar.................................... 92

137........ Disclosure of interests by Industrial Registrar................................. 92

138........ Leave of absence of Industrial Registrar........................................... 92

139........ Resignation by Industrial Registrar.................................................. 93

140........ Termination of appointment of Industrial Registrar........................ 93

141........ Deputy Industrial Registrars............................................................ 93

142........ Acting Industrial Registrar................................................................ 95

143........ Acting Deputy Industrial Registrars................................................ 95

144........ Oath or affirmation of office of Registrar......................................... 96

Division 4—References and appeals                                                                  97

145........ References by Registrar to Commission........................................... 97

146........ Removal of matters before Registrar................................................ 97

147........ Appeals from Registrar to Commission........................................... 97

148........ References to Court by Registrar on question of law....................... 98

Division 5—Staff                                                                                                          100

149........ Staff................................................................................................ 100

Part 5—Workplace Authority Director                                                                  101

Division 1—Workplace Authority Director                                                  101

Subdivision A—Establishment and functions                                                    101

150A..... Workplace Authority Director....................................................... 101

150B..... Functions of Workplace Authority Director.................................. 101

150C..... Minister may give directions to Workplace Authority Director.... 102

Subdivision B—Appointment and terms and conditions                                  103

151A..... Appointment of Workplace Authority Director............................ 103

151B..... Remuneration.................................................................................. 103

151C..... Leave of absence............................................................................. 103

151D..... Other terms and conditions............................................................ 104

151E...... Outside employment...................................................................... 104

151F...... Disclosure of interests.................................................................... 104

151G..... Acting appointments...................................................................... 104

151H..... Resignation..................................................................................... 105

151J...... Termination of appointment.......................................................... 105

Division 2—Workplace Authority Deputy Directors                               106

152A..... Workplace Authority Deputy Directors........................................ 106

152B..... Appointment of Workplace Authority Deputy Director.............. 106

152C..... Remuneration.................................................................................. 106

152D..... Leave of absence............................................................................. 107

152E...... Other terms and conditions............................................................ 107

152F...... Outside employment...................................................................... 107

152G..... Disclosure of interests.................................................................... 107

152H..... Resignation..................................................................................... 108

152J...... Termination of appointment.......................................................... 108

Division 3—Staff, delegations etc.                                                                     109

153A..... Staff................................................................................................ 109

153B..... Workplace Authority..................................................................... 109

153C..... Delegation....................................................................................... 109

Division 4—Reporting and disclosing information                                   110

Subdivision A—Reporting                                                                                     110

163A..... Minister may require reports......................................................... 110

163B..... Annual report................................................................................. 110

163C..... Reports not to include information relating to an individual’s affairs 110

Subdivision B—Disclosing information                                                             111

164A..... Disclosure of information by workplace agreement officials......... 111

165........ Identity of parties to ITEAs not to be disclosed........................... 112

166........ Publication of workplace agreements etc. by Workplace Authority Director         113

Part 5A—Workplace Ombudsman                                                                            114

Division 1—Establishment and functions                                                      114

166A..... Workplace Ombudsman................................................................. 114

166B..... Functions of the Workplace Ombudsman...................................... 114

166C..... Minister may give directions to Workplace Ombudsman.............. 115

Division 2—Appointment and terms and conditions                               116

166D..... Appointment of Workplace Ombudsman...................................... 116

166E...... Remuneration.................................................................................. 116

166F...... Leave of absence............................................................................. 116

166G..... Other terms and conditions............................................................ 117

166H..... Outside employment...................................................................... 117

166J...... Disclosure of interests.................................................................... 117

166K..... Acting appointments...................................................................... 117

166L...... Resignation..................................................................................... 118

166M.... Termination of appointment.......................................................... 118

Division 3—Staff, delegations etc.                                                                     119

166N..... Staff................................................................................................ 119

166P...... Office of the Workplace Ombudsman............................................ 119

166Q..... Delegation....................................................................................... 119

Division 4—Reporting and disclosing information                                   121

Subdivision A—Reporting to Minister                                                                121

166R..... Minister may require reports......................................................... 121

166S...... Annual report................................................................................. 121

166T..... Reports not to include information relating to an individual’s affairs 121

Subdivision B—Disclosing information                                                             122

166U..... Disclosure of information by members of the Office of the Workplace Ombudsman            122

166V..... Directions about exercise of powers to disclose information......... 123

Part 6—Workplace inspectors                                                                                     124

167........ Inspectors....................................................................................... 124

168........ Identity cards.................................................................................. 125

169........ Powers of inspectors...................................................................... 125

Part 7—The Australian Fair Pay and Conditions Standard                        129

Division 1—Preliminary                                                                                          129

171........ Purpose of Part............................................................................... 129

172........ Operation of the Australian Fair Pay and Conditions Standard..... 129

173........ Australian Fair Pay and Conditions Standard cannot be excluded. 130

174........ Extraterritorial extension................................................................. 130

175........ Model dispute resolution process.................................................. 132

Division 2—Wages                                                                                                     133

Subdivision A—Preliminary                                                                                 133

176........ AFPC’s wage‑setting parameters etc............................................. 133

178........ Definitions...................................................................................... 133

179........ Meaning of casual loading provisions........................................... 138

180........ Meaning of classification................................................................ 138

181........ Meaning of rate provisions............................................................ 139

Subdivision B—Guarantee of basic rates of pay                                                140

182........ The guarantee.................................................................................. 140

183........ An employee’s guaranteed hours for the purpose of section 182 141

184........ Modified operation of section 182 to continue effect of Supported Wage System for certain employees with a disability......................................................................................... 144

Subdivision C—Guarantee of casual loadings                                                   144

185........ The guarantee.................................................................................. 144

186........ Default casual loading percentage................................................... 145

Subdivision D—Guarantee of frequency of payment                                         146

189........ The guarantee.................................................................................. 146

Subdivision E—Guarantee against reductions below pre‑reform commencement rates   147

190........ The guarantee where only basic periodic rates of pay are involved 147

191........ The guarantee where basic piece rates of pay are involved............ 148

192........ The guarantee for casual loadings that apply to basic periodic rates of pay           149

Subdivision F—The guarantee against reductions below Federal Minimum Wages (FMWs)         150

193........ The guarantee.................................................................................. 150

Subdivision G—Federal Minimum Wages (FMWs)                                         151

194........ When is there an FMW for an employee?...................................... 151

195........ Standard FMW............................................................................... 152

196........ Adjustment of standard FMW....................................................... 152

199........ How a special FMW is to be expressed......................................... 152

200........ Adjustment of a special FMW....................................................... 152

Subdivision H—Australian Pay and Classification Scales (APCSs): general provisions 153

201........ What is an APCS?.......................................................................... 153

202........ What must or may be in an APCS?................................................ 153

203........ How pay rates and loadings are to be expressed in an APCS........ 154

204........ When is employment covered by an APCS?.................................. 155

205........ What if 2 or more APCSs would otherwise cover an employee?... 155

207........ Deeming APCS rates to at least equal FMW rates after first exercise of AFPC’s powers takes effect  156

Subdivision I—Australian Pay and Classification Scales: preserved APCSs 157

208........ Deriving preserved APCSs from pre‑reform wage instruments..... 157

209........ Notional adjustment: rates and loadings determined as for reform comparison day               158

210........ Notional adjustment: deducing basic periodic rate of pay and casual loading from composite rate        159

211........ Notional adjustment: how basic periodic rates and loadings are expressed             160

212........ Regulations dealing with notional adjustments............................... 161

213........ Certain regulations relating to preserved APCSs may take effect before registration             161

Subdivision K—Australian Pay and Classification Scales: duration and adjustment of APCSs (preserved or new)   162

215........ Duration of APCSs......................................................................... 162

216........ Adjustment of APCSs.................................................................... 162

Subdivision L—Adjustments to incorporate 2005 Safety Net Review etc.   162

218........ Adjustments to incorporate 2005 Safety Net Review................... 162

219........ Regulations may require adjustments to incorporate other decisions 163

Subdivision M—Special provisions relating to APCSs for employees with a disability    164

219A..... Coverage of special APCSs for employees with a disability......... 164

Subdivision N—Miscellaneous                                                                             164

222........ Anti‑discrimination considerations................................................. 164

Division 3—Maximum ordinary hours of work                                           166

Subdivision A—Preliminary                                                                                 166

223........ Employees to whom Division applies........................................... 166

224........ Definitions...................................................................................... 166

225........ Agreement between employees and employers............................. 166

Subdivision B—Guarantee of maximum ordinary hours of work                  167

226........ The guarantee.................................................................................. 167

Division 4—Annual leave                                                                                       170

Subdivision A—Preliminary                                                                                 170

227........ Employees to whom Division applies........................................... 170

228........ Definitions...................................................................................... 170

229........ Meaning of nominal hours worked................................................ 172

230........ Agreement between employees and employers............................. 174

231........ Regulations may prescribe different definitions for piece rate employees              174

Subdivision B—Guarantee of annual leave                                                         175

232........ The guarantee.................................................................................. 175

233........ Entitlement to cash out annual leave.............................................. 175

Subdivision C—Annual leave rules                                                                     176

234........ Annual leave—accrual, crediting and accumulation rules............... 176

235........ Annual leave—payment rules........................................................ 177

236........ Rules about taking annual leave...................................................... 177

237........ Annual leave and workers’ compensation...................................... 180

Subdivision D—Service: annual leave                                                                 180

238........ Annual leave—service.................................................................... 180

Division 5—Personal leave                                                                                   181

Subdivision A—Preliminary                                                                                 181

239........ Employees to whom Division applies........................................... 181

240........ Definitions...................................................................................... 181

241........ Meaning of nominal hours worked................................................ 183

242........ Agreement between employees and employers............................. 185

243........ Regulations may prescribe different definitions for piece rate employees              185

244........ Meaning of personal/carer’s leave................................................. 185

Subdivision B—Guarantee of paid personal/carer’s leave                              186

245........ The guarantee.................................................................................. 186

245A..... Entitlement to cash out an amount of paid personal/carer’s leave. 186

246........ Paid personal/carer’s leave—accrual, crediting and accumulation rules 188

247........ Paid personal/carer’s leave—payment rule.................................... 189

247A..... Entitlement to leave for all nominal hours in a day also extends to other hours on that day  189

248........ Paid personal/carer’s leave—workers’ compensation.................... 190

249........ Paid carer’s leave—annual limit...................................................... 190

Subdivision C—Guarantee of unpaid carer’s leave                                           191

250........ The guarantee.................................................................................. 191

251........ Unpaid carer’s leave—how taken................................................... 192

252........ Unpaid carer’s leave—paid personal leave exhausted.................... 192

Subdivision D—Notice and evidence requirements: personal/carer’s leave 192

253........ Sick leave—notice........................................................................... 192

254........ Sick leave—documentary evidence................................................. 193

255........ Carer’s leave—notice...................................................................... 194

256........ Carer’s leave—documentary evidence............................................ 194

Subdivision E—Guarantee of compassionate leave                                           195

257........ The guarantee.................................................................................. 195

258........ Taking compassionate leave........................................................... 196

259........ Compassionate leave—payment rule............................................. 196

Subdivision F—Personal leave: service                                                              196

260........ Paid personal leave—service.......................................................... 196

261........ Unpaid carer’s leave—service........................................................ 197

Division 6—Parental leave                                                                                    198

Subdivision A—Preliminary                                                                                 198

262........ Employees to whom Division applies........................................... 198

263........ Definitions...................................................................................... 198

264........ Meaning of eligible casual employee.............................................. 201

264A..... Regulations may prescribe different definition for piece rate employees                202

Subdivision B—Guarantee of maternity leave                                                   202

265........ The guarantee.................................................................................. 202

266........ Period of maternity leave................................................................ 203

267........ Period of special maternity leave.................................................... 204

268........ Transfer to a safe job...................................................................... 205

Subdivision C—Maternity leave: documentation                                               206

269........ Special maternity leave—documentation....................................... 206

270........ Ordinary maternity leave—medical certificate............................... 208

271........ Ordinary maternity leave—application.......................................... 209

Subdivision D—Maternity leave: from start to finish                                       210

272........ Maternity leave—start of leave...................................................... 210

273........ Requirement to take leave—for 6 weeks after birth....................... 210

274........ Requirement to take leave—within 6 weeks before birth............... 211

275........ End of pregnancy—effect on ordinary maternity leave entitlement 212

276........ Death of child—effect on ordinary maternity leave entitlement.... 212

277........ End of ordinary maternity leave if employee stops being primary care‑giver         213

278........ Variation of period of ordinary maternity leave............................. 213

279........ Employee’s right to terminate employment during maternity leave 214

280........ Return to work guarantee—maternity leave................................... 214

281........ Replacement employees—maternity leave.................................... 215

Subdivision E—Guarantee of paternity leave                                                     216

282........ The guarantee.................................................................................. 216

283........ Period of paternity leave................................................................ 217

284........ Short paternity leave—concurrent leave taken by spouse............. 218

285........ Long paternity leave—not to be concurrent with maternity leave taken by spouse               218

Subdivision F—Paternity leave: documentation                                                219

286........ Paternity leave—medical certificate............................................... 219

287........ Short paternity leave—application................................................ 220

288........ Long paternity leave—documentation........................................... 220

Subdivision G—Paternity leave: from start to finish                                        221

289........ Short paternity leave—when taken................................................ 221

290........ Long paternity leave—when taken................................................. 221

291........ End of pregnancy—effect on paternity leave................................. 222

292........ Death of child—effect on paternity leave...................................... 222

293........ End of long paternity leave if employee stops being primary care‑giver                223

294........ Variation of period of long paternity leave..................................... 223

295........ Employee’s right to terminate employment during paternity leave 224

296........ Return to work guarantee—paternity leave................................... 224

297........ Replacement employees—long paternity leave............................. 225

Subdivision H—Guarantee of adoption leave                                                      225

298........ Meaning of eligible child................................................................. 225

299........ The guarantee—pre‑adoption leave................................................ 226

300........ The guarantee—adoption leave...................................................... 227

301........ Period of adoption leave................................................................. 227

302........ Short adoption leave—concurrent leave taken by spouse.............. 228

303........ Long adoption leave—not to be concurrent with adoption leave taken by spouse 229

Subdivision I—Adoption leave: documentation                                                  229

304........ Adoption leave—notice.................................................................. 229

305........ Short adoption leave—application................................................. 231

306........ Long adoption leave—application.................................................. 231

307........ Adoption leave—additional documents......................................... 232

Subdivision J—Adoption leave: from start to finish                                         233

308........ Short adoption leave—when taken................................................. 233

309........ Long adoption leave—when taken................................................. 233

310........ Placement does not proceed—effect on adoption leave................. 234

311........ End of long adoption leave if employee stops being primary care‑giver 235

312........ Variation of period of long adoption leave..................................... 235

313........ Employee’s right to terminate employment during adoption leave 236

314........ Return to work guarantee—adoption leave.................................... 236

315........ Replacement employees—long adoption leave.............................. 237

Subdivision K—Parental leave: service                                                              237

316........ Parental leave and service............................................................... 237

Division 7—Civil remedies                                                                                   239

317........ Definition........................................................................................ 239

318........ Civil remedies................................................................................. 239

319........ Standing for civil remedies.............................................................. 239

320........ Court orders.................................................................................... 240

Part 8—Workplace agreements                                                                                 241

Division 1—Preliminary                                                                                          241

321........ Definitions...................................................................................... 241

322........ Single business and single employer............................................... 241

323........ New business.................................................................................. 242

324........ Extended operation of Part in relation to proposed workplace agreements            242

324A..... Documents taken to be workplace agreements etc......................... 243

325........ Extraterritorial extension................................................................. 243

Division 2—Types of workplace agreements                                              244

326........ Individual transitional employment agreements............................. 244

327........ Employee collective agreements..................................................... 245

328........ Union collective agreements........................................................... 245

329........ Union greenfields agreements......................................................... 245

330........ Employer greenfields agreements................................................... 246

331........ Multiple‑business agreements........................................................ 246

332........ Authorisation of multiple‑business agreements............................. 247

333........ When a workplace agreement is made............................................ 247

Division 3—Bargaining agents                                                                            248

334........ Bargaining agents—ITEAs............................................................. 248

335........ Bargaining agents—employee collective agreements...................... 248

Division 4—Pre‑lodgment procedure                                                              250

336........ Eligible employee............................................................................ 250

337........ Providing employees with ready access and information statement 250

338........ Employees may waive 7‑day period.............................................. 252

339........ Prohibition on withdrawal from union collective agreement.......... 252

340........ Approval of a workplace agreement............................................... 253

341........ Employer must not lodge unapproved agreement.......................... 253

Division 5—Lodgment                                                                                             255

342........ Employer must lodge certain workplace agreements with the Workplace Authority Director               255

343........ Lodging multiple‑business agreement without authorisation......... 255

344........ Lodging of workplace agreement documents with the Workplace Authority Director           255

345........ Workplace Authority Director must issue receipt for lodgment of declaration for workplace agreement              256

346........ Employer must notify employees after lodging workplace agreement 257

346A..... Employer to provide copy of lodged ITEA to employee.............. 257

Division 5A—The no‑disadvantage test                                                         258

Subdivision A—Preliminary                                                                                 258

346B..... Definitions...................................................................................... 258

346C..... Application of Division to workplace agreements......................... 259

Subdivision B—The no‑disadvantage test                                                           259

346D..... When does an agreement pass the no‑disadvantage test?............... 259

346E...... Reference instruments etc............................................................... 261

346F...... Agreements to be tested as at lodgment date.................................. 263

346G..... Designated awards—before a workplace agreement or variation is lodged              264

346H..... Designated awards—after a workplace agreement or variation is lodged                265

346HA.. Effect of State awards etc............................................................... 267

346J...... Matters taken into account when testing agreement etc................. 267

Subdivision C—Agreements that operate from approval, and variations of agreements   268

346K..... Application of this Subdivision...................................................... 268

346L...... Applying the no‑disadvantage test................................................. 269

346M.... Workplace Authority Director must notify of decision................. 269

346N..... Agreement does not pass no‑disadvantage test.............................. 270

346P...... Lodging of variation documents with the Workplace Authority Director               270

346Q..... Workplace Authority Director must test varied agreement........... 271

346R..... Operation of section 346N variations............................................ 272

Subdivision D—Agreements that operate from lodgment                               272

346S...... Application of this Subdivision...................................................... 272

346T..... Applying the no‑disadvantage test................................................. 273

346U..... Workplace Authority Director must notify of decision................. 273

346V..... Agreement does not pass no‑disadvantage test—agreement not in operation         274

346W.... Agreement does not pass no‑disadvantage test—agreement in operation               274

346X..... Lodging of variation documents with the Workplace Authority Director               276

346Y..... Operation of section 346W variations............................................ 276

346Z..... Workplace Authority Director must test varied agreement........... 277

346ZA.. Effect of decision on no‑disadvantage test..................................... 278

346ZB... Employment arrangements that apply if a workplace agreement ceases to operate because it does not pass no‑disadvantage test....................................................................... 279

346ZC... Effect of section 346ZB in relation to instruments........................ 280

346ZD.. Redundancy provisions and section 394 undertakings................... 281

346ZE... Operation of workplace agreements............................................... 282

346ZF... Regulations may make provision for operation of provisions of revived instruments            282

Subdivision E—Entitlement to compensation                                                     283

346ZG.. Employee is entitled to compensation in respect of no‑disadvantage test period   283

Subdivision F—Civil remedy provisions                                                             285

346ZH.. Employer must notify employees.................................................. 285

346ZJ.... Employer not to dismiss etc. employee because agreement does not pass the no‑disadvantage test     286

346ZK.. Other remedies for the contravention of section 346ZJ................. 286

Division 6—Operation of workplace agreements and persons bound 288

347........ When a workplace agreement is in operation................................. 288

347A..... Whether certain non‑compliance affects the operation of a workplace agreement  290

348........ Relationship between overlapping workplace agreements............. 290

349........ Effect of awards while workplace agreement is in operation......... 291

350........ Workplace agreement displaces certain Commonwealth laws........ 291

351........ Persons bound by workplace agreements....................................... 292

Division 7—Content of workplace agreements                                          293

Subdivision A—Required content                                                                        293

352........ Nominal expiry date....................................................................... 293

353........ Workplace agreement to include dispute settlement procedures.... 294

Subdivision B—Prohibited content                                                                      295

356........ Prohibited content.......................................................................... 295

357........ Employer must not lodge agreement containing prohibited content 295

358........ Prohibited content in workplace agreement is void........................ 296

359........ Initiating consideration of removal of prohibited content.............. 296

360........ Workplace Authority Director must give notice that he or she is considering variation         296

361........ Matters to be contained in notice................................................... 297

362........ Employer must ensure employees have ready access to notice..... 297

363........ Workplace Authority Director must remove prohibited content from agreement  298

364........ Employer must give employees notice of removal of prohibited content               298

365........ Seeking to include prohibited content in an agreement................... 299

366........ Misrepresentations about prohibited content................................ 299

Division 8—Varying a workplace agreement                                               300

Subdivision A—General                                                                                         300

367........ Varying a workplace agreement...................................................... 300

368........ When a variation to a workplace agreement is made...................... 300

368A..... Documents taken to be variations of workplace agreements etc.... 301

Subdivision B—Pre‑lodgment procedure for variations                                  301

369........ Eligible employee in relation to variation of workplace agreement 301

370........ Providing employees with ready access and information statement 302

371........ Employees may waive 7‑day period.............................................. 304

372........ Prohibition on withdrawal from variation to union collective agreement or union greenfields agreement               304

373........ Approval of a variation to a workplace agreement......................... 305

374........ Employer must not lodge unapproved variation............................ 305

Subdivision C—Lodgment of variations                                                              306

375........ Employer must lodge variations with the Workplace Authority Director              306

376........ Lodging variation to multiple‑business agreement without authorisation               306

377........ Lodging of variation documents with the Workplace Authority Director               306

378........ Workplace Authority Director must issue receipt for lodgment of declaration for variation  307

379........ Employer must notify employees after lodging variation.............. 308

Subdivision D—When a variation comes into operation                                  308

380........ When a variation comes into operation.......................................... 308

380A..... Whether certain non‑compliance affects the operation of a variation 308

Division 9—Terminating a workplace agreement                                     309

Subdivision A—General                                                                                         309

381........ Types of termination...................................................................... 309

381A..... Documents taken to be terminations of workplace agreements etc. 309

Subdivision B—Termination by approval (pre‑lodgment procedure)             310

382........ Terminating a workplace agreement by approval........................... 310

383........ Eligible employee in relation to termination of workplace agreement 310

384........ Providing employees with information statement.......................... 310

385........ Prohibition on withdrawal from termination of union collective agreement or union greenfields agreement           311

386........ Approval of a termination.............................................................. 312

387........ Employer must not lodge unapproved termination........................ 312

Subdivision C—Termination by approval (lodgment)                                       313

388........ Employer must lodge termination with the Workplace Authority Director           313

389........ Lodging termination documents with the Workplace Authority Director               313

390........ Workplace Authority Director must issue receipt for lodgment of declaration for termination             314

391........ Employer must notify employees after lodging termination.......... 314

Subdivision D—Unilateral termination after nominal expiry date                 315

392........ Unilateral termination in a manner provided for in workplace agreement               315

393........ Unilateral termination of ITEA with 90 days written notice......... 316

394........ Undertakings about post‑termination conditions........................... 317

395........ Lodging unilateral termination documents with the Workplace Authority Director               318

396........ Workplace Authority Director must issue receipt for lodgment of declaration for notice of termination              319

397........ Employer must notify employees after lodging notice of termination 320

Subdivision DA—Termination by the Commission                                          320

397A..... Termination by the Commission.................................................... 320

Subdivision E—Effect of termination                                                                   321

398........ Whether a termination takes effect if certain non‑compliance occurs 321

399A..... Preservation of redundancy provisions in certain circumstances... 321

Division 10—Prohibited conduct                                                                        323

400........ Coercion and duress........................................................................ 323

401........ False or misleading statements....................................................... 324

402........ Employers not to discriminate between unionist and non‑unionist 325

Division 11—Contravention of civil remedy provisions                        326

Subdivision A—General                                                                                         326

403........ General powers of Court not affected by this Division................. 326

404........ Workplace inspector may take over proceeding............................. 326

405........ Standing for civil remedies.............................................................. 326

Subdivision B—Pecuniary penalty for contravention of civil remedy provisions                327

406........ Application of Subdivision............................................................. 327

407........ Court may order pecuniary penalty............................................... 327

Subdivision C—Other remedies for contravention of certain civil remedy provisions      329

408........ Application of Subdivision............................................................. 329

409........ Court may declare workplace agreement or part of workplace agreement void      329

410........ Court may vary terms of workplace agreement............................. 329

411........ Court may order that workplace agreement continues to operate despite termination           330

412........ Date of effect and preconditions for orders under sections 409, 410 and 411        330

412A..... Court may give effect to purported workplace agreements etc...... 330

413........ Court may order compensation...................................................... 331

414........ Court may order injunction............................................................ 331

Division 12—Miscellaneous                                                                                 332

415........ ITEAs with Commonwealth employees........................................ 332

416........ Evidence—verified copies.............................................................. 332

417........ Evidence—certificates.................................................................... 333

418........ Regulations relating to workplace agreements................................ 335

Part 9—Industrial action                                                                                                 336

Division 1—Preliminary                                                                                          336

419........ Definitions...................................................................................... 336

420........ Meaning of industrial action........................................................... 336

421........ Meaning of pattern bargaining....................................................... 338

422........ Extraterritorial extension................................................................. 339

Division 2—Bargaining periods                                                                          341

423........ Initiation of bargaining period......................................................... 341

424........ Employee may appoint agent to initiate bargaining period............ 342

425........ Identity of person who has appointed agent not to be disclosed... 342

426........ Particulars to accompany notice..................................................... 344

427........ When bargaining period begins....................................................... 344

428........ When bargaining period ends.......................................................... 344

429........ Power of Commission to restrict initiation of new bargaining periods 345

430........ Suspension and termination of bargaining periods—general powers of Commission             346

431........ Suspension and termination of bargaining periods—pattern bargaining  350

432........ Suspension of bargaining periods—cooling off.............................. 352

433........ Suspension of bargaining periods—significant harm to third party 353

434........ Industrial action without further protected action ballot after end of suspension of bargaining period  356

Division 3—Protected action                                                                                358

Subdivision A—What is protected action?                                                         358

435........ Protected action.............................................................................. 358

Subdivision B—Exclusions from protected action                                            359

436........ Exclusion—claims in support of inclusion of prohibited content.. 359

437........ Exclusion—industrial action while bargaining period is suspended 359

438........ Exclusion—industrial action must not involve persons who are not protected for that industrial action               360

439........ Exclusion—industrial action must not be in support of pattern bargaining claims 360

440........ Exclusion—industrial action must not be taken until after nominal expiry date of workplace agreements or workplace determinations................................................................................ 361

441........ Exclusion—notice of action to be given.......................................... 361

442........ Employee may appoint agent to give notice under section 441..... 363

443........ Exclusion—requirement that employee organisation or employee comply with Commission orders and directions........................................................................................................ 364

444........ Exclusion—requirement that employer genuinely try to reach agreement etc.        364

445........ Exclusion—employee and employee organisation action to be authorised by secret ballot or be in response to employer action.............................................................................. 365

446........ Exclusion—employee organisation action must be duly authorised 365

Subdivision C—Significance of action being protected action                       366

447........ Immunity provisions...................................................................... 366

448........ Employer not to dismiss employee etc. for engaging in protected action               367

Division 4—Secret ballots on proposed protected action                     369

Subdivision A—General                                                                                         369

449........ Object of Division and overview of Division................................. 369

450........ Definitions...................................................................................... 369

Subdivision B—Application for order for protected action ballot to be held 371

451........ Who may apply for a ballot order etc............................................ 371

452........ Contents of application.................................................................. 372

453........ Material to accompany application................................................ 372

454........ Notice of application...................................................................... 373

455........ Joint applications........................................................................... 374

Subdivision C—Determination of application and order for ballot to be held 374

456........ Commission may notify parties etc. of procedure......................... 374

457........ Commission to act quickly in relation to application etc............... 375

458........ Parties and relevant employees may make submissions and apply for directions  375

459........ Commission may make orders or give directions........................... 375

460........ Commission procedure regarding multiple applications................. 376

461........ Application not to be granted unless certain conditions are met.... 377

462........ Grant of application—order for ballot to be held........................... 377

463........ Matters to be included in order...................................................... 378

464........ Guidelines for ballot timetables...................................................... 379

465........ Power of Commission to require information relevant to roll of voters  380

466........ Roll to be compiled by Commission or ballot agent....................... 380

467........ Eligibility to be included on the roll................................................ 380

468........ Adding or removing names from the roll........................................ 381

469........ Variation of order............................................................................ 382

470........ Expiry and revocation of order....................................................... 382

471........ Compliance with orders and directions.......................................... 382

472........ Commission to notify parties and authorised ballot agent............. 383

Subdivision D—Conduct and results of protected action ballot                      383

473........ Conduct of ballot............................................................................ 383

474........ Form of ballot paper....................................................................... 384

475........ Who can vote.................................................................................. 384

476........ Declaration of ballot results............................................................ 384

477........ Ballot reports.................................................................................. 384

478........ Effect of ballot................................................................................ 386

479........ Registrar to record questions put in ballot, and to publish results of ballot            387

Subdivision E—Authorised ballot agents and authorised independent advisers  387

480........ Who may be an authorised ballot agent?........................................ 387

481........ Who may be an authorised independent adviser?........................... 388

Subdivision F—Funding of ballots                                                                        389

482........ Liability for cost of ballot............................................................... 389

483........ Commonwealth has partial liability for cost of completed ballot.. 389

484........ Liability for cost of legal challenges................................................ 390

Subdivision G—Miscellaneous                                                                             391

485........ Identity of certain persons not to be disclosed by Commission.... 391

486........ Persons not to disclose identity of certain persons........................ 391

487........ Immunity if person acted in good faith on ballot results................ 392

488........ Limits on challenges etc. to ballot orders etc.................................. 393

489........ Limits on challenges etc. to ballots................................................. 394

490........ Penalties not affected...................................................................... 395

491........ Preservation of roll of voters, ballot papers etc............................. 395

492........ Conferral of function on Australian Electoral Commission............ 395

493........ Regulations..................................................................................... 396

Division 5—Industrial action not to be engaged in before nominal expiry date of workplace agreement or workplace determination                                                              397

494........ Industrial action etc. must not be taken before nominal expiry date of collective agreement or workplace determinations........................................................................................................ 397

495........ Industrial action must not be taken before nominal expiry date of ITEA               399

Division 6—Orders and injunctions against industrial action             401

496........ Orders and injunctions against industrial action—general.............. 401

497........ Injunction against industrial action if pattern bargaining engaged in in relation to proposed collective agreement 403

Division 7—Ministerial declarations terminating bargaining periods 405

498........ Minister’s declaration..................................................................... 405

499........ Minister’s directions to remove or reduce the threat..................... 406

Division 8—Workplace determinations                                                          408

500........ Application of Division.................................................................. 408

501........ Definitions...................................................................................... 408

502........ Negotiating period.......................................................................... 408

503........ When Full Bench must make workplace determination................. 408

504........ Content of workplace determination.............................................. 409

505........ Who is bound by a workplace determination?............................... 410

506........ Act applies to workplace determination as if it were a collective agreement          410

Division 9—Payments in relation to periods of industrial action      411

507........ Payments not to be made or accepted in relation to periods of industrial action    411

508........ Organisations not to take action for payments in relation to periods of industrial action      412

509........ Persons not to coerce people for payments in relation to periods of industrial action           414

Part 10—Awards                                                                                                                  416

Division 1—Preliminary                                                                                          416

510........ Objects of Part................................................................................ 416

511........ Performance of functions by the Commission............................... 416

512........ Extraterritorial extension................................................................. 417

Division 2—Terms that may be included in awards                                 419

Subdivision A—Allowable award matters                                                           419

513........ Allowable award matters................................................................ 419

514........ Dispute settling procedures............................................................ 421

515........ Matters that are not allowable award matters................................ 421

516........ Matters provided for by the Australian Fair Pay and Conditions Standard           423

517........ Awards may not include terms involving discrimination and preference                423

518........ Awards may not include certain terms about rights of entry......... 423

519........ Awards may not include enterprise flexibility provisions............. 424

Subdivision B—Other terms that are permitted to be in awards                    424

520........ Preserved award terms.................................................................... 424

521........ Facilitative provisions.................................................................... 424

522........ Incidental and machinery terms...................................................... 424

523........ Anti‑discrimination clauses............................................................ 425

524........ Boards of reference......................................................................... 425

Subdivision C—Terms in awards that cease to have effect                              426

525........ Terms in awards that cease to have effect after the reform commencement            426

Subdivision D—Regulations relating to part‑time employees                        427

526........ Award conditions for part‑time employees................................... 427

Division 3—Preserved award entitlements                                                  428

527........ Preservation of certain award terms............................................... 428

529........ When preserved award entitlements have effect............................ 429

530........ Meaning of more generous............................................................. 430

531........ Modifications that may be prescribed—personal/carer’s leave..... 431

532........ Modifications that may be prescribed—parental leave.................. 431

533........ Preserved award terms—employers bound after reform commencement               432

Division 5—Variation and revocation of awards                                         433

Subdivision A—Variation of awards                                                                    433

552........ Variation of awards—general.......................................................... 433

553........ Variation of awards if essential to maintain minimum safety net entitlements       433

554........ Variation of awards—other grounds............................................... 434

Subdivision B—Revocation of awards                                                                  435

556........ Revocation of awards—award obsolete or no longer capable of operating             435

Division 6—Binding additional employers, employees and organisations to awards     437

557........ Binding additional employers, employees and organisations to an award               437

558........ Application to be bound by an award—agreement between employer and employees          437

559........ Application to be bound by an award—no agreement between employer and employees     438

560........ Application to be bound by an award—new organisations........... 439

561........ Application by new organisation to be bound by an award—when application may be made              440

562........ Process for valid majority of employees........................................ 440

563........ General provisions.......................................................................... 440

Division 7—Outworkers                                                                                         441

564........ Definitions...................................................................................... 441

566........ Binding additional eligible entities and employers.......................... 441

Division 8—Technical matters                                                                            443

567........ Making and publication of awards and award‑related orders......... 443

568........ Awards and award‑related orders must meet certain requirements 444

569........ Registrar’s powers if member ceases to be a member.................... 445

570........ Form of awards............................................................................... 445

571........ Date of awards................................................................................ 445

572........ Commencement of awards.............................................................. 445

573........ Continuation of awards.................................................................. 446

574........ Awards of Commission are final.................................................... 446

575........ Reprints of awards as varied.......................................................... 446

576........ Expressions used in awards............................................................ 446

Part 10A—Award modernisation                                                                                447

Division 1—Preliminary                                                                                          447

576A..... Object of Part................................................................................. 447

Division 2—Award modernisation process                                                   448

576B..... Commission’s award modernisation function................................ 448

576C..... Award modernisation request......................................................... 449

576D..... Award modernisation request to be published............................... 450

576E...... Procedure for carrying out award modernisation process.............. 450

576F...... Completion of award modernisation process................................. 451

576G..... Full Bench must make modern awards........................................... 451

576H..... Commission may vary modern awards.......................................... 452

Division 3—Terms of modern awards                                                             453

Subdivision A—Terms that may be included in modern awards                     453

576J...... Matters that may be dealt with by modern awards....................... 453

576K..... Terms providing for outworkers.................................................... 454

576L...... Terms may only provide a fair minimum safety net...................... 455

576M.... Incidental and machinery terms...................................................... 455

576N..... Terms must be in accordance with award modernisation request.. 456

Subdivision B—Terms that must not be included in modern awards            456

576P...... Terms not permitted by Subdivision A.......................................... 456

576Q..... Terms that breach freedom of association provisions.................... 456

576R..... Terms about right of entry............................................................. 456

576S...... Terms that are discriminatory........................................................ 457

576T..... Terms that contain State‑based differences.................................... 458

Division 4—Who is bound by modern awards                                             459

576U..... Definitions...................................................................................... 459

576V..... Who is bound by a modern award.................................................. 459

Division 5—Technical matters                                                                            462

576W.... Formal requirements of modern awards and variation orders......... 462

576X..... When is a modern award or variation order made........................... 462

576Y..... Commencement of modern awards and variation orders................ 462

576Z..... Modern awards and variation orders must be published................ 463

576ZA.. Modern awards and variation orders are final................................ 464

576ZB... Expressions used in modern awards and variation orders.............. 464

Part 11—Transmission of business rules                                                              465

Division 1—Introductory                                                                                        465

577........ Object............................................................................................. 465

578........ Simplified outline............................................................................ 465

579........ Definitions...................................................................................... 466

Division 2—Application of Part                                                                           467

580........ Application of Part......................................................................... 467

581........ Transferring employees.................................................................. 467

582........ Transferring employees in relation to particular instrument.......... 468

Division 3—Transmission of ITEA                                                                   469

583........ Transmission of ITEA.................................................................... 469

584........ Termination of transmitted ITEA.................................................. 470

Division 4—Transmission of collective agreement                                  471

Subdivision A—General                                                                                         471

585........ Transmission of collective agreement............................................. 471

586........ Interaction rules.............................................................................. 472

587........ Transmitted collective agreement ceasing in relation to transferring employee       473

588........ Termination of transmitted collective agreement............................ 473

Subdivision B—Commission’s powers                                                                474

589........ Application and terminology.......................................................... 474

590........ Commission may make order......................................................... 475

591........ When application for order can be made........................................ 475

592........ Who may apply for order............................................................... 475

593........ Applicant to give notice of application.......................................... 476

594........ Submissions in relation to application............................................ 476

Division 5—Transmission of award                                                                   478

595........ Transmission of award................................................................... 478

596........ Interaction rules.............................................................................. 479

597........ Transmitted award ceasing in relation to transferring employee.... 480

Division 6—Transmission of APCS                                                                  481

598........ Transmission of APCS................................................................... 481

Division 6A—Transmission of preserved redundancy provisions from workplace agreements             482

598A..... Transmission of preserved redundancy provisions from workplace agreements    482

Division 7—Entitlements under the Australian Fair Pay and Conditions Standard        484

599........ Parental leave entitlements............................................................. 484

600........ New employer assuming liability for particular entitlements........ 485

601........ New employer assuming entitlements generally............................ 486

Division 7A—Application of no‑disadvantage test                                   488

601A..... No decision under section 346D at time of transmission............... 488

601B..... No decision on a varied agreement under section 346Z at time of transmission     489

601C..... Employees still employed by old employer.................................. 490

601D..... Employment arrangements if a workplace agreement ceases to operate because it does not pass no‑disadvantage test........................................................................................................ 490

601E...... Effect of section 601D in relation to instruments.......................... 492

601F...... Regulations may make provision for operation of revived instruments  493

601G..... Compensation in respect of no‑disadvantage test period............... 493

601H..... Notice requirements in relation to transmission of business.......... 494

Division 8—Notice requirements and enforcement                                 495

602........ Informing transferring employees about transmission of instrument 495

603........ Lodging copy of notice with Workplace Authority Director......... 497

603A..... Informing transferring employees about transmission of preserved redundancy provisions  498

603B..... Lodging copy of notice about preserved redundancy provisions with Workplace Authority Director  499

604........ Workplace Authority Director must issue receipt for lodgment.... 500

605........ Civil penalties................................................................................. 500

Division 9—Miscellaneous                                                                                    502

606........ Regulations..................................................................................... 502

Part 12—Minimum entitlements of employees                                                  503

Division 1—Entitlement to meal breaks                                                        503

607........ Meal breaks.................................................................................... 503

608........ Displacement of entitlement to meal breaks................................... 503

609........ Model dispute resolution process.................................................. 503

610........ Extraterritorial extension................................................................. 503

Division 2—Entitlement to public holidays                                                   506

611........ Definition of public holiday............................................................ 506

612........ Entitlement to public holidays....................................................... 506

613........ Reasonableness of refusal............................................................... 507

614........ Model dispute resolution process.................................................. 508

615........ Employer not to prejudice employee for reasonable refusal.......... 508

616........ Penalties etc. for contravention of section 615............................... 508

617........ Burden of proof in relation to reasonableness of refusal................ 509

618........ Proof not required of the reason for conduct.................................. 509

619........ Extraterritorial extension................................................................. 510

Division 3—Equal remuneration for work of equal value                     512

620........ Object............................................................................................. 512

621........ Relationship of this Division to other laws providing alternative remedies            512

622........ Relationship of this Division to AFPC decisions and the Australian Fair Pay and Conditions Standard              513

623........ Equal remuneration for work of equal value................................... 515

624........ Orders requiring equal remuneration............................................... 515

625........ Orders only on application............................................................. 515

626........ Conciliation or mediation................................................................ 516

627........ If conciliation or mediation is unsuccessful.................................... 517

628........ Hearing of matter by member who conducted conciliation............ 517

629........ Immediate or progressive introduction of equal remuneration....... 518

630........ Employer not to reduce remuneration............................................ 518

631........ Employer not to prejudice employee............................................. 518

632........ Penalties etc. for contravention of section 631............................... 518

633........ Proof not required of the reason for conduct.................................. 519

634........ Extraterritorial extension................................................................. 520

Division 4—Termination of employment                                                       521

Subdivision A—Object, application and definitions                                          521

635........ Object............................................................................................. 521

636........ Meaning of employee, employer and employment........................... 521

637........ Application..................................................................................... 522

638........ Exclusions....................................................................................... 523

639........ Regulations may provide for additional exclusions........................ 527

640........ People’s rights, liabilities and obligations the same as if certain provisions of the regulations had been valid       527

641........ Extraterritorial extension................................................................. 528

642........ Definitions...................................................................................... 529

Subdivision B—Application to Commission for relief in respect of termination of employment     532

643........ Application to Commission to deal with termination under this Subdivision         532

644........ Fees for lodging applications under section 643............................. 535

645........ Motions for dismissal of application for want of jurisdiction....... 537

646........ Applications that are frivolous, vexatious or lacking in substance. 538

647........ Extension of time applications may be decided without a hearing. 539

648........ Matters that do not require a hearing............................................. 540

649........ Dismissal of application relating to termination for operational reasons                541

650........ Conciliation..................................................................................... 542

651........ Elections to proceed to arbitration or to begin court proceedings.. 543

652........ Arbitration...................................................................................... 546

653........ Exercise of arbitration powers by member who has exercised conciliation powers                547

654........ Remedies on arbitration.................................................................. 547

655........ Orders made on arbitration are binding........................................... 550

656........ Representatives to disclose contingency fee agreements................ 550

657........ Commission may dismiss application if applicant fails to attend.. 551

658........ Commission may order payment of costs...................................... 552

Subdivision C—Unlawful termination of employment by employer               554

659........ Employment not to be terminated on certain grounds................... 554

660........ Employer to notify CES of proposed terminations in certain cases 557

661........ Employer to give notice of termination.......................................... 558

662........ Contravention of this Subdivision not an offence.......................... 559

663........ Application to courts in relation to alleged contravention of section 659, 660 or 661            559

664........ Proof of issues in relation to alleged contravention of section 659 560

665........ Orders available to courts............................................................... 561

666........ Costs............................................................................................... 563

667........ Small claims procedure................................................................... 563

Subdivision D—Commission orders after employer fails to consult trade union about terminations            564

668........ Orders by Commission where employer fails to consult trade union about terminations      564

669........ Orders only on application............................................................. 565

670........ Powers and procedures of Commission for dealing with applications 566

671........ No order if alternative remedy exists.............................................. 566

Subdivision E—Rights relating to termination of employment                      566

672........ Limitation on applications alleging termination on paragraph 643(1)(a) grounds   566

673........ No second applications under section 643 concerning same termination to be made              568

674........ Limitation on applications alleging unlawful termination............... 568

Subdivision F—Unmeritorious or speculative proceedings                            570

675........ Definitions...................................................................................... 570

676........ Advisers not to encourage applicants to make, or to pursue, certain applications 570

677........ Applications to the Court.............................................................. 571

678........ Evidentiary matters........................................................................ 571

679........ Order that the Court may make...................................................... 571

Division 5—Orders and proceedings                                                               573

680........ Orders to be in writing.................................................................... 573

681........ When orders take effect.................................................................. 573

682........ Compliance with orders.................................................................. 573

683........ Variation and revocation of orders.................................................. 573

684........ Representation of employers......................................................... 574

685........ Appeals to Full Bench.................................................................... 574

686........ Inconsistency with awards or other orders of Commission........... 574

687........ Meaning of employee and employer................................................ 575

Division 6—Parental leave                                                                                    576

688........ Object and application of Division................................................. 576

689........ Entitlement to parental leave.......................................................... 576

690........ Division supplements other laws................................................... 577

691........ Model dispute resolution process.................................................. 577

Division 7—Stand downs                                                                                        578

691A..... Employer may stand down employees in certain circumstances... 578

691B..... Prohibition of unauthorised stand downs....................................... 579

691C..... Extraterritorial extension................................................................. 580

Part 13—Dispute resolution processes                                                                  582

Division 1—Preliminary                                                                                          582

692........ Object............................................................................................. 582

693........ Court process................................................................................. 582

Division 2—Model dispute resolution process                                          583

694........ Model dispute resolution process.................................................. 583

695........ Resolving dispute at workplace level............................................. 583

696........ Where dispute cannot be resolved at workplace level.................... 584

697........ Conduct during dispute.................................................................. 584

Division 3—Alternative dispute resolution process conducted by Commission under model dispute resolution process                                                                            586

698........ Alternative dispute resolution process........................................... 586

699........ Application..................................................................................... 586

700........ Refusing application....................................................................... 587

701........ Commission’s powers.................................................................... 588

702........ Privacy............................................................................................ 589

703........ When alternative dispute resolution process complete.................. 590

Division 4—Alternative dispute resolution process used to resolve other disputes    591

704........ Application..................................................................................... 591

705........ Grounds on which Commission must refuse application............... 591

706........ Powers of the Commission............................................................. 592

707........ Privacy............................................................................................ 593

708........ When alternative dispute resolution process complete.................. 594

Division 5—Dispute resolution process conducted by the Commission under workplace agreement                                                                                                                    595

709........ Application..................................................................................... 595

710........ Grounds on which Commission must refuse application............... 596

711........ Commission’s powers.................................................................... 596

712........ Privacy............................................................................................ 597

Division 6—Dispute resolution process conducted by another provider             598

713........ Application of this Division........................................................... 598

714........ Representation................................................................................ 598

715........ Privacy............................................................................................ 598

716........ Where anti‑discrimination or equal opportunity proceedings in progress               600

Part 14—Compliance                                                                                                        601

Division 1—Definitions                                                                                            601

717........ Definitions...................................................................................... 601

Division 2—Penalties and other remedies for contravention of applicable provisions 603

718........ Standing to apply for penalties or remedies under this Division... 603

719........ Imposition and recovery of penalties............................................. 606

720........ Recovery of wages etc.................................................................... 608

721........ Damages for breach of ITEA.......................................................... 608

722........ Interest up to judgment.................................................................. 608

723........ Interest on judgment....................................................................... 609

724........ Plaintiffs may choose small claims procedure in magistrates’ courts 609

725........ Small claims procedure................................................................... 609

726........ Unclaimed moneys......................................................................... 611

Division 3—General provisions relating to civil remedies                  612

727........ Operation of this Division.............................................................. 612

728........ Involvement in contravention treated in same way as actual contravention            612

729........ Civil evidence and procedure rules for civil remedy orders............ 612

730........ Recovery of pecuniary penalties.................................................... 613

731........ Civil proceedings after criminal proceedings.................................. 613

732........ Criminal proceedings during civil proceedings................................ 613

733........ Criminal proceedings after civil proceedings.................................. 613

734........ Evidence given in proceedings for pecuniary penalty not admissible in criminal proceedings                613

735........ Civil double jeopardy..................................................................... 614

Part 15—Right of entry                                                                                                   615

Division 1—Preliminary                                                                                          615

736........ Objects of this Part......................................................................... 615

737........ Definitions...................................................................................... 615

738........ Form of entry notice....................................................................... 617

739........ Extraterritorial extension................................................................. 618

Division 2—Issue of permits                                                                                619

740........ Issue of permit................................................................................ 619

741........ Imposition of permit conditions at time of issue........................... 619

742........ Permit not to be issued in certain cases.......................................... 620

Division 3—Expiry, revocation, suspension etc. of permits                622

743........ Expiry of permit............................................................................. 622

744........ Revocation, suspension etc. by Registrar....................................... 622

745........ Revoked etc. permit must be returned to Registrar........................ 624

746........ Extra conditions to be endorsed on permit..................................... 624

Division 4—Right of entry to investigate suspected breaches          625

747........ Right of entry to investigate breach................................................ 625

748........ Rights of permit holder after entering premises............................. 625

749........ Limitation on rights—entry notice or exemption certificate.......... 628

750........ Exemption from requirement to provide entry notice.................... 629

751........ Limitation on rights—failure to comply with requests of occupier or affected employer      629

752........ Limitation on rights—residential premises..................................... 630

753........ Limitation on rights—permit conditions........................................ 630

754........ Burden of proving reasonable grounds for suspecting breach........ 630

Division 5—Entry for OHS purposes                                                               632

755........ OHS entries to which this Division applies................................... 632

756........ Permit required for OHS entry....................................................... 633

757........ Rights to inspect employment records after entering premises..... 633

758........ Limitation on OHS entry—failure to comply with requests of occupier                634

759........ Limitation on OHS entry—permit conditions............................... 635

Division 6—Right of entry to hold discussions with employees        636

760........ Right of entry to hold discussions with employees....................... 636

761........ Limitation on rights—times of entry and discussions.................... 636

762........ Limitation on rights—conscientious objection certificates............. 636

763........ Limitation on rights—entry notice................................................. 637

764........ Limitation on rights—residential premises..................................... 637

765........ Limitation on rights—failure to comply with requests of occupier or affected employer      637

766........ Limitation on rights—permit conditions........................................ 638

Division 7—Prohibitions                                                                                         639

767........ Hindering, obstruction etc. in relation to this Part......................... 639

768........ Misrepresentations about right of entry........................................ 640

Division 8—Enforcement                                                                                       641

769........ Penalties etc. for contravention of civil remedy provisions........... 641

Division 9—Powers of the Commission                                                         642

770........ Orders by Commission for abuse of system.................................. 642

771........ Unreasonable requests by occupier or affected employer.............. 643

772........ Disputes about the operation of this Part...................................... 644

773........ Powers of inspection...................................................................... 645

774........ Parties to proceedings..................................................................... 645

775........ Kinds of orders............................................................................... 645

776........ Relief not limited to claim............................................................... 645

777........ Publishing orders............................................................................ 646

Part 16—Freedom of association                                                                               648

Division 1—Preliminary                                                                                          648

778........ Objects of Part................................................................................ 648

779........ Definitions...................................................................................... 648

780........ Meaning of industrial action........................................................... 651

781........ Meaning of office............................................................................ 651

Division 2—Conduct to which this Part applies                                         653

782........ Application..................................................................................... 653

783........ Organisations.................................................................................. 653

784........ Matters arising under this Act or the Registration and Accountability of Organisations Schedule        653

785........ Constitutional corporations............................................................ 654

786........ Commonwealth and Commonwealth authorities............................ 654

787........ Territories and Commonwealth places........................................... 655

788........ Extraterritorial extension................................................................. 655

Division 3—General prohibitions relating to freedom of association 658

789........ Coercion.......................................................................................... 658

790........ False or misleading statements about membership......................... 658

791........ Industrial action for reasons relating to membership...................... 659

Division 4—Conduct by employers etc.                                                         660

792........ Dismissal etc. of members of industrial associations etc................ 660

793........ Prohibited reasons.......................................................................... 661

794........ Inducements to cease membership etc. of industrial associations etc. 663

Division 5—Conduct by employees etc.                                                         664

795........ Cessation of work........................................................................... 664

Division 6—Conduct by industrial associations etc.                                665

796........ Industrial associations acting against employers............................ 665

797........ Industrial associations acting against employees etc...................... 666

798........ Industrial associations acting against members............................... 667

799........ Industrial associations acting against independent contractors etc. 668

800........ Industrial associations acting against independent contractors etc. to encourage contraventions           671

801........ Industrial associations not to demand bargaining services fee........ 671

802........ Action to coerce person to pay bargaining services fee.................. 671

803........ Industrial associations not prevented from entering contracts....... 672

Division 7—Conduct in relation to industrial instruments                   673

804........ Discrimination against employer in relation to industrial instruments 673

Division 8—False or misleading representations about bargaining services fees etc. 674

805........ False or misleading representations about bargaining services fees etc... 674

Division 9—Enforcement                                                                                       675

806........ Definition........................................................................................ 675

807........ Penalties etc. for contravention of civil remedy provisions........... 675

808........ Conduct that contravenes Division 3 and another Division of this Part 676

809........ Proof not required of the reason for, or the intention of, conduct.. 676

Division 10—Objectionable provisions                                                          677

810........ Meaning of objectionable provision............................................... 677

811........ Objectionable provisions etc. in industrial instruments etc............ 678

812........ Removal of objectionable provisions from awards......................... 678

Division 11—Miscellaneous                                                                                 679

813........ Freedom of association not dependent on certificate..................... 679

Part 17—Offences                                                                                                              680

814........ Offences in relation to Commission............................................... 680

815........ Attendance at compulsory conferences.......................................... 681

816........ Intimidation etc............................................................................... 681

817........ Creating disturbance near Commission........................................... 682

818........ Offences relating to witnesses........................................................ 682

819........ Non‑compliance with requirement made by an inspector.............. 683

820........ False statement in application for protected action ballot order.... 684

821........ Offences in relation to secret ballots ordered under Division 4 of Part 9                684

822........ Contracts entered into by agents of employers.............................. 686

823........ Publication of trade secrets etc....................................................... 686

Part 18—Costs                                                                                                                      687

Division 1—Costs                                                                                                       687

824........ Costs only where proceeding instituted vexatiously etc................ 687

Part 19—Miscellaneous                                                                                                  688

825........ Delegation by Minister................................................................... 688

826........ Conduct by officers, directors, employees or agents..................... 688

827........ Signature on behalf of body corporate............................................ 689

828........ No imprisonment in default............................................................ 689

829........ Jurisdiction of courts limited as to area.......................................... 689

830........ Public sector employer to act through employing authority.......... 689

831........ Variation of workplace agreements on grounds of sex discrimination 690

835........ Proceedings by and against unincorporated clubs.......................... 690

836........ Records relating to employees........................................................ 690

837........ Inspection of documents etc........................................................... 691

838........ Interim injunctions.......................................................................... 691

839........ Trade secrets etc. tendered as evidence.......................................... 691

840........ Powers of courts............................................................................. 692

841........ Application of penalty................................................................... 692

842........ Enforcement of penalties etc.......................................................... 692

843........ Appropriation for payment of certain salaries and allowances...... 692

844........ Reports about developments in making agreements....................... 693

845........ Acquisition of property................................................................. 693

846........ Regulations..................................................................................... 695

Part 20—Jurisdiction of the Federal Court of Australia and Federal Magistrates Court 697

Division 1—Original jurisdiction                                                                        697

847........ Jurisdiction of Court....................................................................... 697

848........ Interpretation of awards................................................................. 698

849........ Interpretation of certified agreements............................................. 698

850........ Exclusive jurisdiction...................................................................... 698

851........ Exercise of Court’s original jurisdiction.......................................... 699

852........ Reference of proceedings to Full Court.......................................... 700

Division 2—Appellate jurisdiction                                                                     701

853........ Appeals from State and Territory courts....................................... 701

Division 3—Representation and intervention                                             702

854........ Representation of parties before the Court or the Federal Magistrates Court        702

855........ Intervention generally..................................................................... 703

856........ Particular rights of intervention of Minister................................... 704

Part 21—Matters referred by Victoria                                                                   705

Division 1—Introduction                                                                                        705

857........ Objects............................................................................................ 705

858........ Definitions...................................................................................... 705

859........ Part only has effect if supported by reference............................... 705

Division 2—Pay and conditions                                                                           706

860........ Additional effect of Act—AFPC’s powers................................... 706

861........ Additional effect of Act—Australian Fair Pay and Conditions Standard               706

862........ Application of the Australian Fair Pay and Conditions Standard to employees in Victoria   707

863........ Additional provisions of the Australian Fair Pay and Conditions Standard           707

864........ Adjustment of APCSs.................................................................... 708

865........ Limitation on application of minimum wage standards.................. 708

866........ Guarantee against reductions below pre‑reform basic periodic rates of pay           709

867........ Guarantee against reductions below pre‑reform casual loadings that apply to basic periodic rates of pay            710

868........ Additional effect of Act—enforcement of, and compliance with, the Australian Fair Pay and Conditions Standard........................................................................................................ 710

Division 3—Workplace agreements                                                                 712

869........ Additional effect of Act—workplace agreements.......................... 712

870........ Workplace agreements—mandatory term about basic periodic rate of pay            713

871........ Workplace agreements—mandatory term about casual loading..... 714

Division 4—Industrial action                                                                                715

872........ Additional effect of Act—industrial action.................................... 715

873........ Intervention in proceedings under Part 9........................................ 717

874........ Additional effect of Act—enforcement of, and compliance with, orders under Part 9           717

Division 5—Meal breaks                                                                                        719

875........ Additional effect of Act—meal breaks........................................... 719

876........ Additional effect of Act—enforcement of, and compliance with, section 607        719

Division 6—Public holidays                                                                                   721

877........ Additional effect of Act—public holidays..................................... 721

878........ Additional effect of Act—enforcement of, and compliance with, section 612        721

Division 7—Termination of employment                                                       723

879........ Additional effect of Act—termination of employment.................. 723

880........ Additional effect of Act—enforcement of, and compliance with, orders under Division 4 of Part 12   723

Division 7A—Stand downs                                                                                     724

880A..... Additional effect of Act—stand downs......................................... 724

Division 8—Freedom of association                                                                 725

881........ Additional effect of Act—freedom of association.......................... 725

Division 9—Right of entry                                                                                     726

882........ Right of entry................................................................................. 726

883........ Additional effect of Act—enforcement of, and compliance with, orders under Part 15         726

Division 10—Employee records and pay slips                                            727

884........ Additional effect of Act—employee records and pay slips........... 727

Division 11—Transmission of business                                                          728

885........ Additional effect of Act—transmission of business...................... 728

886........ Additional effect of Act—enforcement of, and compliance with, orders under Part 11         729

Division 11A—Sham arrangements                                                                  731

886A..... Additional effect of Act—sham arrangements............................... 731

Division 12—Employment agreements                                                          732

887........ Definitions...................................................................................... 732

888........ Application of this Division........................................................... 732

889........ Inconsistency with other Commonwealth laws............................. 733

890........ Continued operation of employment agreements........................... 733

892........ Model dispute resolution process.................................................. 733

893........ Additional effect of Act—enforcing employment agreements....... 734

894........ Employer to give copy of employment agreement........................ 734

895........ Registrar not to divulge information in employment agreements... 734

896........ Relationship between employment agreements and Australian Fair Pay and Conditions Standard       735

897........ Relationship between employment agreements and awards.......... 735

Division 13—Exclusion of Victorian laws                                                      736

898........ Additional effect of Act—exclusion of Victorian laws................... 736

Division 14—Additional effect of other provisions of this Act           738

899........ Additional effect of other provisions of this Act........................... 738

Part 22—Sham arrangements                                                                                      739

900........ Misrepresenting an employment relationship as an independent contracting arrangement    739

901........ Misrepresenting a proposed employment relationship as a proposed independent contract arrangement            739

902........ Dismissal etc. for purpose of engaging certain persons as independent contractors               740

903........ Prohibited conduct for purpose of engaging certain persons as independent contractors       741

904........ Penalty for contravention............................................................... 741

905........ Meaning of Court........................................................................... 742

Part 23—School‑based apprentices and trainees                                             743

Division 1—Preliminary                                                                                          743

914........ Definitions...................................................................................... 743

Division 2—School‑based apprentices                                                            744

915........ Additional conditions for school‑based apprentices...................... 744

916........ Pay for apprentices who were school‑based apprentices.............. 745

Division 3—School‑based trainees                                                                    746

917........ Additional conditions for school‑based trainees............................. 746

918........ Loading in lieu of certain conditions............................................... 747

Division 4—Enforcement                                                                                       748

919........ Enforcement.................................................................................... 748


An Act relating to workplace relations, and for other purposes

  

Part 1Preliminary

  

1  Short title [see Note 1]

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

2  Commencement [see Note 1]

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

3  Principal object

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

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

                     (b)  establishing and maintaining a simplified national system of workplace relations; and

                     (c)  providing an economically sustainable safety net of minimum wages and conditions for those whose employment is regulated by this Act; and

                     (d)  ensuring that, as far as possible, the primary responsibility for determining matters affecting the employment relationship rests with the employer and employees at the workplace or enterprise level; and

                     (e)  enabling employers and employees to choose the most appropriate form of agreement for their particular circumstances; and

                      (f)  ensuring compliance with minimum standards, industrial instruments and bargaining processes by providing effective means for the investigation and enforcement of:

                              (i)  employee entitlements; and

                             (ii)  the rights and obligations of employers and employees, and their organisations; and

                     (g)  ensuring that awards provide minimum safety net entitlements for award‑reliant employees which are consistent with Australian Fair Pay Commission decisions and which avoid creating disincentives to bargain at the workplace level; and

                    (ga)  establishing a process for making modern awards; and

                     (h)  supporting harmonious and productive workplace relations by providing flexible mechanisms for the voluntary settlement of disputes; and

                      (i)  balancing the right to take industrial action for the purposes of collective bargaining at the workplace level with the need to protect the public interest and appropriately deal with illegitimate and unprotected industrial action; and

                      (j)  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

                     (k)  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

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

                    (m)  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

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

4  Definitions

             (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.

AFPC has the meaning given by section 19.

allowable award matters means the matters referred to in subsection 513(1).

Note:          The matters referred to in subsection 513(1) have a meaning that is affected by section 515.

alternative dispute resolution process has the meaning given by section 698.

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.

APCS has the meaning given by section 178.

applies to employment generally: a law of a State or Territory applies to employment generally if it applies (subject to constitutional limitations) to:

                     (a)  all employers and employees in the State or Territory; or

                     (b)  all employers and employees in the State or Territory except those identified (by reference to a class or otherwise) by a law of the State or Territory.

For this purpose, it does not matter whether or not the law also applies to other persons, or whether or not an exercise of a power under the law affects all the persons to whom the law applies.

arbitration powers means the powers of the Commission in relation to arbitration.

Australian‑based employee means:

                     (a)  an employee whose primary place of work is in Australia, in Australia’s exclusive economic zone or in, on, or over Australia’s continental shelf; or

                     (b)  an employee who is employed by the Commonwealth or a Commonwealth authority, except an employee engaged outside Australia and the external Territories to perform duties outside Australia and the external Territories; or

                     (c)  an employee who is prescribed by the regulations for the purposes of this definition.

Note:          Subsection 5(1) defines employee.

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

Australian employer means:

                     (a)  an employer that is a trading corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or

                     (b)  an employer that is a financial corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or

                     (c)  an employer that is the Commonwealth; or

                     (d)  an employer that is a Commonwealth authority; or

                     (e)  an employer that is a body corporate incorporated in a Territory; or

                      (f)  an employer that carries on in Australia, in Australia’s exclusive economic zone or in, on, or over Australia’s continental shelf an activity (whether of a commercial, governmental or other nature) whose central management and control is in Australia; or

                     (g)  an employer that is prescribed by the regulations for the purposes of this definition.

Note:          Subsection 6(1) defines employer.

Australian Fair Pay and Conditions Standard has the meaning given by subsection 171(3).

Australia’s continental shelf means the continental shelf (as defined in the Seas and Submerged Lands Act 1973) of Australia.

Australia’s exclusive economic zone means the exclusive economic zone (as defined in the Seas and Submerged Lands Act 1973) of Australia.

authorised stand down means a stand down of an employee that is authorised as mentioned in subsection 691B(1).

award means a pre‑reform award.

award modernisation process means a process of award modernisation carried out by the Commission in accordance with an award modernisation request.

award modernisation request has the meaning given by subsection 576C(1).

award‑related order means an order varying, revoking or suspending an award.

bargaining agent means:

                     (a)  in relation to an ITEA—a person who has been duly appointed as a bargaining agent in relation to the ITEA in accordance with section 334; or

                     (b)  in relation to an employee collective agreement—a person who has been requested to be a bargaining agent in relation to the agreement in accordance with section 335.

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

breach includes non‑observance.

Chief Justice means the Chief Justice of the Court.

civil remedy provision has the meaning given by section 727.

collective agreement means:

                     (a)  an employee collective agreement; or

                     (b)  a union collective agreement; or

                     (c)  an employer greenfields agreement; or

                     (d)  a union greenfields agreement; or

                     (e)  a multiple‑business agreement.

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

                     (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.

Commonwealth workplace relations legislation means:

                     (a)  this Act; or

                     (b)  the Independent Contractors Act 2006; or

                     (c)  regulations made under the Independent Contractors Act 2006.

Note:          The definition of Commonwealth workplace relations legislation does not cover the Registration and Accountability of Organisations Schedule or regulations made under that Schedule, because the definition of this Act excludes them both (although it includes other regulations made under the Act).

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

constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.

constitutional trade or commerce means trade or commerce:

                     (a)  between Australia and a place outside Australia; or

                     (b)  among the States; or

                     (c)  between a State and a Territory; or

                     (d)  between 2 Territories; or

                     (e)  within a Territory.

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.

Note:          For the purposes of various provisions of this Act, Court means the Federal Court of Australia or the Federal Magistrates Court. This is indicated by definitions that apply for the purposes of those provisions.

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 has a meaning affected by section 5.

employee collective agreement has the meaning given by section 327.

employer has a meaning affected by section 6.

employer greenfields agreement has the meaning given by section 330.

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 has a meaning affected by section 7.

Equal Remuneration Convention means the Equal Remuneration Convention, 1951.

Family Responsibilities Convention means the Workers with Family Responsibilities Convention, 1981, a copy of the English text of which is set out in Schedule 5.

flight crew officer has the meaning given by clause 1 of Schedule 2.

Full Bench means a Full Bench of the Commission.

Full Court means a Full Court of the Court.

greenfields agreement means a union greenfields agreement or an employer greenfields agreement.

individual transitional employment agreement or ITEA has the meaning given by section 326.

industrial action has the meaning given by section 420.

Industrial Registrar means the Industrial Registrar appointed under section 133.

Industrial Registry means the Australian Industrial Registry.

industry includes:

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

                     (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 workplace inspector.

ITEA: see individual transitional employment agreement.

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 by clause 1 of Schedule 2.

member of the Office of the Workplace Ombudsman means a person covered by subsection 166P(2).

member of the Workplace Authority means a person covered by subsection 153B(2).

model dispute resolution process means the process set out in Division 2 of Part 13.

modern award means an award made by the Commission under section 576G.

multiple‑business agreement has the meaning given by section 331.

new APCS has the meaning given by section 178.

nominal expiry date of a workplace agreement has the meaning given by section 352.

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.

notional agreement preserving State awards has the meaning given by clause 1 of Schedule 8.

occupier, in relation to premises, includes a person in charge of the premises.

office, in relation to an organisation or a branch of an organisation, has the same meaning as in the Registration and Accountability of Organisations Schedule.

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

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 95.

peak council means a national or State 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 meaning given by section 4AA of the Crimes Act 1914.

person includes an organisation.

pilot has the meaning given by clause 1 of Schedule 2.

premises includes any land, building, structure, mine, mine working, ship, aircraft, vessel, vehicle or place.

pre‑reform AWA has the meaning given by clause 1 of Schedule 7.

pre‑reform award means an instrument that has effect after the reform commencement under item 4 of Schedule 4 to the Workplace Relations Amendment (Work Choices) Act 2005.

prescribed includes prescribed by Rules of the Commission made under section 124.

preserved APCS has the meaning given by subsection 208(1).

preserved award entitlement, in relation to an employee, has the meaning given by section 529.

preserved award term has the meaning given by section 527.

preserved State agreement has the meaning given by clause 1 of Schedule 8.

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.

proceeding includes a proceeding relating to an award modernisation process.

protected action has the meaning given by section 435.

protected action ballot means a ballot under Division 4 of Part 9.

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; or

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

                     (c)  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; or

                     (d)  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; or

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

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

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

but, other than in section 116, does not include:

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

                      (i)  employment or service under a prescribed law.

reform commencement means the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005.

Registrar means the Industrial Registrar or a Deputy Industrial Registrar.

Registration and Accountability of Organisations Schedule means Schedule 1.

registry means the Principal Registry or another registry established under section 130.

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.

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 by clause 1 of Schedule 2.

single business has the meaning given by section 322.

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 in force under a State or Territory industrial law; 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; or

                     (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.

State or Territory industrial law means:

                     (a)  any of the following State Acts:

                              (i)  the Industrial Relations Act 1996 of New South Wales;

                             (ii)  the Industrial Relations Act 1999 of Queensland;

                            (iii)  the Industrial Relations Act 1979 of Western Australia;

                            (iv)  the Fair Work Act 1994 of South Australia;

                             (v)  the Industrial Relations Act 1984 of Tasmania; or

                     (b)  an Act of a State or Territory that applies to employment generally and has one or more of the following as its main purpose or one or more of its main purposes:

                              (i)  regulating workplace relations (including industrial matters, industrial disputes and industrial action, within the ordinary meaning of those expressions);

                             (ii)  providing for the determination of terms and conditions of employment;

                            (iii)  providing for the making and enforcement of agreements determining terms and conditions of employment;

                            (iv)  providing for rights and remedies connected with the termination of employment;

                             (v)  prohibiting conduct that relates to the fact that a person either is, or is not, a member of an industrial association (as defined in section 779); or

                     (c)  an instrument made under an Act described in paragraph (a) or (b), so far as the instrument is of a legislative character; or

                     (d)  a law that:

                              (i)  is a law of a State or Territory; and

                             (ii)  is prescribed by regulations for the purposes of this paragraph.

State or Territory training authority means a body authorised by a law or award of a State or Territory for the purpose of overseeing arrangements for the training of employees.

stevedoring operations has the meaning given by clause 1 of Schedule 2.

Termination of Employment Convention means the Termination of Employment Convention, 1982, a copy of the English text of which is set out in Schedule 4.

this Act includes the regulations but does not include Schedule 1 or regulations made under that Schedule.

trade union means:

                     (a)  an organisation of employees; or

                     (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.

training arrangement means a combination of work and training that is subject to a training agreement or a training contract between the employee and employer that is registered:

                     (a)  with the relevant State or Territory training authority; or

                     (b)  under a law of a State or Territory relating to the training of employees.

union collective agreement has the meaning given by section 328.

union greenfields agreement has the meaning given by section 329.

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 worker has the meaning given by clause 1 of Schedule 2.

wharf has the meaning given by clause 1 of Schedule 2.

working day means a day that is not a Saturday, a Sunday or a public holiday.

workplace agreement means:

                     (a)  an ITEA; or

                     (b)  a collective agreement;

and includes a document that the Court has ordered under section 412A is to have effect as a workplace agreement.

Note 1:       Section 324 affects the meaning of workplace agreement.

Note 2:       Under section 324A, some other documents are taken to be workplace agreements for certain limited purposes.

Note 3:       An order by the Court under paragraph 412A(1)(a) enables a document to which section 324A applies to have effect as a workplace agreement.

workplace agreement official means:

                     (a)  the Workplace Authority Director; or

                     (b)  a Workplace Authority Deputy Director; or

                     (c)  a member of the staff assisting the Workplace Authority Director; or

                     (d)  a delegate of the Workplace Authority Director.

Workplace Authority Deputy Director means a Workplace Authority Deputy Director holding office under Part 5.

Workplace Authority Director means the Workplace Authority Director holding office under Part 5.

workplace determination means a determination under Division 8 of Part 9.

workplace inspector means a person who is a workplace inspector under section 167.

Workplace Ombudsman means the Workplace Ombudsman holding office under Part 5A.

             (2)  To avoid doubt, it is declared that a reference in this Act (except in Parts 10 and 16, and in regulations made for the purposes of paragraph 356(1)(f)) to an independent contractor is confined to a natural person.

             (3)  In this Act, 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.

             (4)  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.

             (5)  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.

             (6)  A reference in this Act to a term of an award includes a reference to a provision of an award.

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

5  Employee

Basic definition

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

employee means an individual so far as he or she is employed, or usually employed, as described in the definition of employer in subsection 6(1), by an employer, except on a vocational placement.

Note:          See also Part 21 (employees and employers in Victoria).

References to employee with ordinary meaning

             (2)  However, a reference to employee has its ordinary meaning (subject to subsections (3) and (4)) if the reference is listed in clause 2 of Schedule 2. This does not limit the circumstances in which a contrary intention may appear for the purposes of subsection (1).

Note:          The regulations may amend clause 2 of Schedule 2. See clause 5 of Schedule 2.

             (3)  In this Act, unless the contrary intention appears, a reference to employee with its ordinary meaning includes a reference to an individual who is usually an employee with that meaning.

             (4)  In this Act, unless the contrary intention appears, a reference to employee with its ordinary meaning does not include a reference to an individual on a vocational placement.

6  Employer

Basic definition

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

employer means:

                     (a)  a constitutional corporation, so far as it employs, or usually employs, an individual; or

                     (b)  the Commonwealth, so far as it employs, or usually employs, an individual; or

                     (c)  a Commonwealth authority, so far as it employs, or usually employs, an individual; or

                     (d)  a person or entity (which may be an unincorporated club) so far as the person or entity, in connection with constitutional trade or commerce, employs, or usually employs, an individual as:

                              (i)  a flight crew officer; or

                             (ii)  a maritime employee; or

                            (iii)  a waterside worker; or

                     (e)  a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or

                      (f)  a person or entity (which may be an unincorporated club) that carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person or entity employs, or usually employs, an individual in connection with the activity carried on in the Territory.

Note 1:       In this context, Australia includes the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands. See paragraph 17(a) of the Acts Interpretation Act 1901.

Note 2:       See also Part 21 (employees and employers in Victoria).

References to employer with ordinary meaning

             (2)  However, a reference to employer has its ordinary meaning (subject to subsection (3)) if the reference is listed in clause 3 of Schedule 2. This does not limit the circumstances in which a contrary intention may appear for the purposes of subsection (1).

Note:          The regulations may amend clause 3 of Schedule 2. See clause 5 of Schedule 2.

             (3)  In this Act, unless the contrary intention appears, a reference to employer with its ordinary meaning includes a reference to a person or entity that is usually an employer with that meaning.

7  Employment

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

employment means the employment of an employee by an employer.

Note:          Subsections 5(1) and 6(1) define employee and employer.

References to employment with ordinary meaning

             (2)  However, a reference to employment has its ordinary meaning if the reference is listed in clause 4 of Schedule 2. This does not limit the circumstances in which a contrary intention may appear for the purposes of subsection (1).

Note:          The regulations may amend clause 4 of Schedule 2. See clause 5 of Schedule 2.

8  Schedules 1, 6, 7, 7A, 7B, 8, and 9 have effect

                   Schedules 1, 6, 7, 7A, 7B, 8 and 9 have effect.

Note 1:       Schedule 1 is about registration and accountability of organisations.

Note 2:       Schedule 6 is about transitional arrangements for parties bound by federal awards.

Note 3:       Schedule 7 is about transitional arrangements for existing pre‑reform certified agreements.

Note 4:       Schedule 7A is about transitional arrangements for existing AWAs.

Note 5:       Schedule 7B is about transitional arrangements for existing collective agreements.

Note 6:       Schedule 8 is about transitional treatment of State employment agreements and State awards.

Note 7:       Schedule 9 is about transitional instruments and transmission of business.

9  Schedule 10 has effect

                   Schedule 10 has effect.

Note:          Schedule 10 is about transitionally registered associations.

10  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.

11  Modifications for Christmas Island and Cocos (Keeling) Islands

             (1)  If the regulations prescribe modifications of this Act for its application in relation to the Territory of Christmas Island, this Act has effect as modified in relation to the Territory.

             (2)  If the regulations prescribe modifications of this Act for its application in relation to the Territory of Cocos (Keeling) Islands, this Act has effect as modified in relation to the Territory.

             (3)  In this section:

modifications includes additions, omissions and substitutions.

12  Exclusion of persons insufficiently connected with Australia

             (1)  A provision of this Act prescribed by the regulations does not apply to a person or entity in Australia prescribed by the regulations as a person to whom, or an entity to which, the provision does not apply.

Note 1:       In this context, Australia includes the Territory of Christmas Island, the Territory of Cocos (Keeling) Islands and the coastal sea. See section 15B and paragraph 17(a) of the Acts Interpretation Act 1901.

Note 2:       The regulations may prescribe the person or entity by reference to a class. See subsection 13(3) of the Legislative Instruments Act 2003.

             (2)  Before the Governor‑General makes regulations for the purposes of subsection (1) prescribing either or both of the following:

                     (a)  a provision of this Act that is not to apply to a person or entity;

                     (b)  a person to whom, or an entity to which, a provision of this Act is not to apply;

the Minister must be satisfied that the provision should not apply to the person or entity in Australia because there is not a sufficient connection between the person or entity and Australia.

             (3)  In this section:

this Act includes the Registration and Accountability of Organisations Schedule and regulations made under it.

13  Extraterritorial application

             (1)  Each Part or Division listed in the table, and the rest of this Act so far as it relates to the Part or Division, extends to persons, acts, omissions, matters and things outside Australia as described in the relevant section listed in the table.

 

Extraterritorial application

Item

This Part or Division:

Which is about this topic:

Extends to persons, acts, omissions, matters and things outside Australia as described in this section:

 

1

Part 7

The Australian Fair Pay and Conditions Standard

Section 174

 

2

Part 8

Workplace agreements

Section 325

 

3

Part 10

Awards

Section 512

 

4

Division 1 of Part 12

Meal breaks

Section 610

 

4A

Division 2 of Part 12

Public holidays

Section 619

 

5

Division 3 of Part 12

Equal remuneration for work of equal value

Section 634

 

6

Division 4 of Part 12

Termination of employment

Section 641

 

6A

Division 7 of Part 12

Stand downs

Section 691C

 

7

Part 15

Right of entry

Section 739

 

8

Part 16

Freedom of association

Section 788

 

Note 1:       In this context, Australia includes the Territory of Christmas Island, the Territory of Cocos (Keeling) Islands and the coastal sea. See section 15B and paragraph 17(a) of the Acts Interpretation Act 1901.

Note 2:       Provisions of section 169 giving inspectors power to enter certain premises and places and do certain things there also extend to some premises and places outside Australia, subject to Australia’s international obligations relating to foreign‑flagged ships and foreign‑registered aircraft.

Note 3:       Part 9 (Industrial action) and related provisions of this Act may extend in relation to Australia’s exclusive economic zone, and in relation to Australia’s continental shelf, as prescribed by the regulations. See section 422.

Modified application in Australia’s exclusive economic zone

             (2)  If the regulations prescribe modifications of this Act for its operation in relation to all or part of Australia’s exclusive economic zone, then, so far as this Act extends to the zone or part apart from this subsection, it has effect as modified in relation to the zone or part.

             (3)  For the purposes of subsection (2), the regulations may prescribe different modifications in relation to different parts of Australia’s exclusive economic zone.

Modified application in relation to Australia’s continental shelf

             (4)  If the regulations prescribe modifications of this Act for its operation in relation to all or part of Australia’s continental shelf, then, so far as this Act extends in relation to the continental shelf or part apart from this subsection, it has effect as modified in relation to the continental shelf or part.

             (5)  For the purposes of subsection (4), the regulations may prescribe different modifications in relation to different parts of Australia’s continental shelf.

Definitions

             (6)  In this section:

modifications includes additions, omissions and substitutions.

this Act includes the Registration and Accountability of Organisations Schedule and regulations made under it.

14  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.

15  Application of Criminal Code

             (1)  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 826, rather than by Part 2.5 of the Criminal Code.

             (2)  However, so far as Part 2.7 of the Criminal Code is relevant to this Act, it has effect subject to the following sections of this Act:

                     (a)  section 13;

                     (b)  the sections mentioned in section 13;

                     (c)  section 169;

                     (d)  section 422.

Note:          Part 2.7 of the Criminal Code is about geographical jurisdiction in connection with offences. Section 13, the sections mentioned there and sections 169 and 422 deal with extraterritorial operation of this Act.

16  Act excludes some State and Territory laws

             (1)  This Act is intended to apply to the exclusion of all the following laws of a State or Territory so far as they would otherwise apply in relation to an employee or employer:

                     (a)  a State or Territory industrial law;

                     (b)  a law that applies to employment generally and deals with leave other than long service leave;

                     (c)  a law providing for a court or tribunal constituted by a law of the State or Territory to make an order in relation to equal remuneration for work of equal value (as defined in section 623);

                     (d)  a law providing for the variation or setting aside of rights and obligations arising under a contract of employment, or another arrangement for employment, that a court or tribunal finds is unfair;

                     (e)  a law that entitles a representative of a trade union to enter premises.

Note:          Subsection 4(1) defines applies to employment generally.

State and Territory laws that are not excluded

             (2)  However, subsection (1) does not apply to a law of a State or Territory so far as:

                     (a)  the law deals with the prevention of discrimination, the promotion of EEO or both, and is neither a State or Territory industrial law nor contained in such a law; or

                     (b)  the law is prescribed by the regulations as a law to which subsection (1) does not apply; or

                     (c)  the law deals with any of the matters (the non‑excluded matters) described in subsection (3).

             (3)  The non‑excluded matters are as follows:

                     (a)  superannuation;

                     (b)  workers compensation;

                     (c)  occupational health and safety (including entry of a representative of a trade union to premises for a purpose connected with occupational health and safety);

                     (d)  matters relating to outworkers (including entry of a representative of a trade union to premises for a purpose connected with outworkers);

                     (e)  child labour;

                      (f)  long service leave;

                     (g)  the observance of a public holiday, except the rate of payment of an employee for the public holiday;

                     (h)  the method of payment of wages or salaries;

                      (i)  the frequency of payment of wages or salaries;

                      (j)  deductions from wages or salaries;

                     (k)  industrial action (within the ordinary meaning of the expression) affecting essential services;

                      (l)  attendance for service on a jury;

                    (m)  regulation of any of the following:

                              (i)  associations of employees;

                             (ii)  associations of employers;

                            (iii)  members of associations of employees or of associations of employers.

Note:          Part 15 (Right of entry) sets prerequisites for a trade union representative to enter certain premises under a right given by a prescribed law of a State or Territory. The prerequisites apply even though the law deals with such entry for a purpose connected with occupational health and safety and paragraph (2)(c) says this Act is not to apply to the exclusion of a law dealing with that.

This Act excludes prescribed State and Territory laws

             (4)  This Act is intended to apply to the exclusion of a law of a State or Territory that is prescribed by the regulations for the purposes of this subsection.

             (5)  To avoid doubt, subsection (4) has effect even if the law is covered by subsection (2) (so that subsection (1) does not apply to the law). This subsection does not limit subsection (4).

Definition

             (6)  In this section:

this Act includes the Registration and Accountability of Organisations Schedule and regulations made under it.

17  Awards, agreements and Commission orders prevail over State and Territory law etc.

             (1)  An award or workplace agreement prevails over a law of a State or Territory, a State award or a State employment agreement, to the extent of any inconsistency.

             (2)  However, a term of an award or workplace agreement dealing with any of the following matters has effect subject to a law of a State or Territory dealing with the matter, except a law that is prescribed by the regulations as a law to which awards and workplace agreements are not subject:

                     (a)  occupational health and safety;

                     (b)  workers compensation;

                     (c)  training arrangements;

                     (d)  a matter prescribed by the regulations for the purposes of this paragraph.

             (3)  An order of the Commission under Part 12 prevails over a law of a State or Territory, a State award or a State employment agreement, to the extent of any inconsistency.

Note:          Part 12 is about minimum entitlements of employees.

18  Act may exclude State and Territory laws in other cases

             (1)  Sections 16 and 17 are not a complete statement of the circumstances in which this Act and instruments made under it are intended to apply to the exclusion of, or prevail over, laws of the States and Territories or instruments made under those laws.

Note:          Other provisions of this Act deal with its relationship with laws of the States and Territories. For example, see clause 87 of Schedule 6, which is about not excluding or limiting Victorian law that can operate concurrently with certain provisions of that Schedule.

             (2)  In this section:

this Act includes the Registration and Accountability of Organisations Schedule and regulations made under it.


 

Part 2Australian Fair Pay Commission

Division 1Preliminary

19  Definitions

                   In this Part:

AFPC means the Australian Fair Pay Commission established by section 20.

AFPC Chair means the AFPC Chair appointed under section 29.

AFPC Commissioner means an AFPC Commissioner appointed under section 38.

AFPC Secretariat means the AFPC Secretariat established under section 46.

Director of the Secretariat means the Director of the Secretariat appointed under section 50.

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 22(1).

wage‑setting powers means the powers of the AFPC under Division 2 of Part 7.


 

Division 2Australian Fair Pay Commission

Subdivision AEstablishment and functions

20  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.

21  Functions of the AFPC

                   The functions of the AFPC are as follows:

                     (a)  its wage‑setting function as set out in subsection 22(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

22  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 7):

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

(b)           adjusting special FMWs for employees with a disability;

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

             (2)  During the period (the interim period) from the commencement of this Part to the commencement of Division 2 of Part 7, 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.

23  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.

24  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.

25  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.

26  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

27  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.

28  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

29  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.

30  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.

31  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.

32  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.

33  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.

34  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.

35  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 33; 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 Board (within the meaning of that Act) 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 Board (within the meaning of that Act) 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.

36  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.

37  Acting AFPC Chair

             (1)  The Minister may appoint a person who meets the requirements set out in subsection 29(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

38  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.

39  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.

40  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.

41  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.

42  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.

43  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 41; 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 Board (within the meaning of that Act) 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 Board (within the meaning of that Act) 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.

44  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.

45  Acting AFPC Commissioners

             (1)  The Minister may appoint a person who meets the requirement set out in subsection 38(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

46  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.

47  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

48  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.

49  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

50  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.

51  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.

52  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.

53  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.

54  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.

55  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.

56  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 54; 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 Board (within the meaning of that Act) 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 Board (within the meaning of that Act) 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.

57  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.

58  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

59  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.

60  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 3Australian Industrial Relations Commission

Division 1Establishment of Commission

61  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;

                     (b)  2 Vice Presidents;

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

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

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

62  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.

63  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.

64  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.

65  Seniority

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

                     (a)  the President;

                     (b)  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;

                     (c)  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;

                     (d)  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;

                     (e)  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.

66  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.

             (3)  The proportion may be varied by an agreement entered into between the President and the member.

             (4)  The proportion in force in relation to a particular period is in this section called the agreed proportion.

             (5)  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.

             (6)  If the annual rate of salary of a member mentioned in subsection (5) is not an amount of whole dollars, it is to be rounded to the nearest dollar (with 50 cents being rounded up).

             (7)  If, assuming that a member or former member mentioned in subsection (5) 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 79(9), (10) or (11) or 81(3), the member or former member is to be paid an amount equal to the agreed proportion of that payment.

             (8)  If there are different agreed proportions applicable to different periods, paragraph (5)(a) and subsection (7) apply separately to each of those periods.

             (9)  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.

67  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 64, 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.

68  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.

69  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.

70  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.

71  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.

             (2)  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.

             (3)  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.

72  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) 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.

73  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.

74  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.

75  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.

76  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 3.

77  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.

78  Duty of Commission members

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

79  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.

             (2)  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 (3).

             (3)  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.

             (4)  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.

             (5)  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.

             (6)  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.

             (7)  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).

             (8)  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.

             (9)  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.

           (10)  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.

           (11)  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.

           (12)  The salary of the Presidential Members accrue from day to day and are payable monthly.

           (13)  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.

           (14)  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 69:

                     (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.

           (15)  This section has effect subject to:

                     (a)  section 66; and

                     (b)  any Commonwealth or Territory law making provision as mentioned in paragraph 69(1)(b).

           (16)  In this section:

Judge does not include the Chief Justice of the Court.

80  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; or

                            (iii)  an ordinary employer‑sponsored member of PSSAP, within the meaning of the Superannuation Act 2005; 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; or

                     (c)  an ordinary employer‑sponsored member of PSSAP, within the meaning of the Superannuation Act 2005.

             (3)  The election must be made:

                     (a)  within 3 months of the Presidential Member’s appointment; and

                     (b)  by notice in writing to the Minister.

             (4)  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; or

                            (iii)  an ordinary employer‑sponsored member of PSSAP, within the meaning of the Superannuation Act 2005;

                            immediately before being appointed as a Presidential Member.

81  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 79(11), 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 66.

82  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.

83  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.

84  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.

85  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.

86  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 83.

87  Resignation by Commission member

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


 

Division 2Organisation of Commission

88  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).

89  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.

90  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.

91  Exercise of Commission powers

             (1)  The Commission may perform a function or exercise a power on its own initiative.

             (2)  Despite subsection (1), the Commission must not perform a function or exercise a power under a provision of this Act on its own initiative if:

                     (a)  the function is to be performed, or the power exercised, on application by a specified person or class of persons; and

                     (b)  the function is not also expressed to be able to be performed, or the power exercised, on the Commission’s own initiative.

92  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 88; 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 85 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.

93  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 65; 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 65; and

                     (g)  in any other case—the opinion of the Commissioner who is a member and who has seniority under section 65.

94  Arrangement of business of Commission

             (1)  The President shall direct the business of the Commission.

             (2)  When exercising powers under this section and section 95, 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.

95  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.

             (2)  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.

             (3)  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.

             (4)  A member of the Commission may be a member of more than one panel mentioned in subsection (1).

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

96  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.

97  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.

98  Co‑operation with the States by President

                   The President may invite the heads of State industrial authorities to meet with the President to exchange information and discuss matters of mutual interest in relation to workplace relations.

99  Co‑operation with the States by Registrar

                   The Industrial Registrar may invite the principal registrars of State industrial authorities to meet with the Industrial Registrar to exchange information and discuss matters of mutual interest in relation to workplace relations.


 

Division 3Representation and intervention

100  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 if:

                     (a)  all parties have given express consent to that representation; and

                     (b)  the Commission grants leave for the party to be so represented.

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

                     (a)  the party applies to the Commission to be so represented; and

                     (b)  the Commission grants leave for the party to be so represented.

             (5)  In deciding whether or not to grant leave under subsection (3), the Commission must have regard to the following matters:

                     (a)  whether being represented by counsel, solicitor or agent would assist the party concerned to bring the best case possible;

                     (b)  the capacity of the particular counsel, solicitor or agent to represent the party concerned;

                     (c)  the capacity of the particular counsel, solicitor or agent to assist the Commission in performing the Commission’s functions under this Act.

             (6)  In deciding whether or not to grant leave under subsection (4), the Commission must have regard to the following matters:

                     (a)  the matters referred to in paragraphs (5)(a), (b) and (c);

                     (b)  the complexity of the factual and legal issues relating to the proceeding;

                     (c)  whether there are special circumstances that make it desirable that the party concerned be represented by counsel, solicitor or agent;

                     (d)  if the party applies to be represented by an agent—whether the agent is a person or body, or an officer or employee of a person or body, that is able to represent the interests of the party under a State or Territory industrial relations law.

             (7)  An appeal to a Full Bench under section 120 may not be made in relation to a decision under subsection (3) or (4) to grant leave or not to grant leave.

             (8)  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.

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

           (10)  Regulations made for the purposes of subsection (9) may prescribe different classes of persons in relation to different classes of proceedings.

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

                     (a)  an officer or employee of the party; or

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

                     (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; or

                     (e)  a bargaining agent.

           (12)  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.

           (13)  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.

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

party includes an intervener.

101  Intervention generally

                   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.

102  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 4General matters relating to the powers and procedures of the Commission

Subdivision AGeneral matters Commission to take into account

103  Commission to take into account the public interest

             (1)  In the performance of its functions, the Commission must take into account the public interest, and for that purpose must have regard to:

                     (a)  the objects of this Act; and

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

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

                     (a)  Parliament’s intention in enacting that Schedule; and

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

             (3)  This section does not apply to the performance of a function under Part 9 or Part 10.

104  Commission to take into account discrimination issues

                   In the performance of its functions, the Commission must take into account the following:

                     (a)  the need to apply the principle of equal pay for work of equal value;

                     (b)  the need to prevent and eliminate discrimination because of, or for reasons including, race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

105  Commission to take account of Racial Discrimination Act, Sex Discrimination Act, Disability Discrimination Act and Age Discrimination Act

                   In the performance of its functions, the Commission must take account of the principles embodied in the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992 and the Age Discrimination Act 2004 relating to discrimination in relation to employment.

106  Commission to take account of Family Responsibilities Convention

             (1)  In performing its functions, the Commission must take account of the principles embodied in the Family Responsibilities Convention, in particular those relating to:

                     (a)  preventing discrimination against workers who have family responsibilities; and

                     (b)  helping workers to reconcile their employment and family responsibilities.

             (2)  This section does not apply to the performance of a function under Part 9.

107  Safety, health and welfare of employees

             (1)  In performing its functions, the Commission must take into account the provisions of any law of a State or Territory relating to the safety, health and welfare of employees in relation to their employment.

             (2)  This section does not apply to the performance of a function under Division 3 of Part 12.

108  Commission to act quickly

                   The Commission must perform its functions as quickly as practicable.

109  Commission to avoid technicalities and facilitate fair conduct of proceedings

                   The Commission must perform its functions in a way that avoids unnecessary technicalities and facilitates the fair and practical conduct of any proceedings under this Act or the Registration and Accountability of Organisations Schedule.

Subdivision BParticular powers and procedures of the Commission

110  Procedure of Commission

             (1)  In a proceeding under this Act or the Registration and Accountability of Organisations Schedule:

                     (a)  the procedure of the Commission is, subject to this Act, the Registration and Accountability of Organisations Schedule and the Rules of the Commission, within the discretion of the Commission; and

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

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

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

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

111  Particular powers of Commission

             (1)  The Commission may do any of the following in relation to a proceeding under this Act or the Registration and Accountability of Organisations Schedule:

                     (a)  inform itself in any manner that it thinks appropriate;

                     (b)  take evidence on oath or affirmation;

                     (c)  give directions orally or in writing in the course of, or for the purposes of, procedural matters relating to the proceeding;

                     (d)  vary or revoke an order, direction or decision of the Commission;

                     (e)  dismiss a matter or part of a matter on the ground:

                              (i)  that the matter, or the part of the matter, is trivial; or

                             (ii)  that further proceedings in relation to the matter are not necessary or desirable in the public interest;

                      (f)  determine the proceeding in the absence of a person who has been summoned or served with a notice to appear;

                     (g)  sit at any place;

                     (h)  conduct the proceeding, or any part of the proceeding, in private;

                      (i)  adjourn the proceeding to any time and place;

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

                     (k)  direct a member of the Commission to consider a particular matter that is before the Full Bench and prepare a report for the Full Bench on that matter;

                      (l)  allow the amendment, on any terms that it thinks appropriate, of any application or other document relating to the proceeding;

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

                     (n)  summon before it any persons whose presence the Commission considers would assist in relation to the proceeding;

                     (o)  compel the production before it of documents and other things for the purpose of reference to such entries or matters as relate to the proceeding;

                     (p)  make interim decisions;

                     (q)  make a final decision in respect of the matter to which the proceeding relates.

             (2)  The Commission may, in writing, authorise a person (including a member of the Commission) to take evidence on its behalf, with any limitations as the Commission directs, in relation to the proceeding, and the person has all the powers of the Commission to secure:

                     (a)  the attendance of witnesses; and

                     (b)  the production of documents and things; and

                     (c)  the taking of evidence on oath or affirmation.

             (3)  The following provisions do not apply to the performance of a function under Part 9:

                     (a)  paragraph (1)(e);

                     (b)  paragraph (1)(j);

                     (c)  paragraph (1)(k).

             (4)  The following provisions do not apply to the performance of a function under Division 3, 4 or 5 of Part 12:

                     (a)  paragraph (1)(a);

                     (b)  paragraph (1)(e);

                     (c)  paragraph (1)(k);

                     (d)  paragraph (1)(p);

                     (e)  paragraph (1)(q);

                      (f)  subsection (2).

             (5)  Paragraph (1)(j) does not apply to the performance of a function under Division 4 of Part 12.

             (6)  If a provision of this Act specifies a time or a period in respect of any matter or thing, the Commission must not extend the time or the period specified unless this Act expressly permits the Commission to do so.

             (7)  If a provision of the Registration and Accountability of Organisations Schedule specifies a time or a period in respect of any matter or thing, the Commission must not extend the time or the period specified unless the Registration and Accountability of Organisations Schedule expressly permits the Commission to do so.

             (8)  For the purposes of paragraph (1)(d), order does not include an award or an award‑related order.

112  Reference of proceedings to Full Bench

             (1)  If a proceeding is before a member of the Commission, a party to the proceeding or the Minister may apply to the member to have the proceeding dealt with by a Full Bench because the subject matter of the proceeding is of such importance that, in the public interest, the proceeding should be dealt with by a Full Bench.

             (2)  If an application is made under subsection (1) to a member of the Commission other than the President:

                     (a)  the member must refer the application to the President to be dealt with; and

                     (b)  the President must confer with the member about whether the application should be granted.

             (3)  If the President is of the opinion that the subject matter of the proceeding is of such importance that, in the public interest, the proceeding should be dealt with by a Full Bench, the President must grant the application.

             (4)  If the President grants an application under subsection (1), the Full Bench must (subject to subsection (5)) hear and determine the proceeding to which the application relates.

             (5)  If the President grants an application under subsection (1), the Full Bench may do either or both of the following:

                     (a)  have regard to any evidence given, and any arguments adduced, in the proceeding before the Full Bench began to deal with it;

                     (b)  refer a part of the proceeding to a member of the Commission to hear and determine.

             (6)  The President may, before a Full Bench has been established for the purpose of dealing with a proceeding under this section, authorise a member of the Commission to take evidence for the purposes of the proceeding, and the Full Bench must have regard to the evidence.

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

             (8)  The member must, after making such investigation (if any) as is necessary, provide a report to the President or the Full Bench, as required.

             (9)  In this section:

proceeding includes a part of a proceeding.

113  President may deal with certain proceedings

             (1)  The President may, whether or not another member of the Commission has begun to deal with a particular proceeding, decide to deal with the proceeding.

             (2)  If the President decides to deal with the proceeding, the President must:

                     (a)  hear and determine the proceeding; or

                     (b)  refer the proceeding to a Full Bench.

             (3)  If the President refers an application to a Full Bench, the Full Bench must (subject to subsection (4)) hear and determine the proceeding.

             (4)  If the President refers the proceeding to a Full Bench, the Full Bench may refer a part of the proceeding to a member of the Commission to hear and determine.

             (5)  The President or the Full Bench may, in dealing with the proceeding, have regard to any evidence given, and any arguments adduced, in the proceeding before the President or the Full Bench, as the case may be, began to deal with it.

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

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

             (8)  In this section:

proceeding includes a part of a proceeding.

114  Review on application by Minister

             (1)  The Minister may apply to the President for a review by a Full Bench of an award or order, or a decision relating to the making of an award or order, made by a member of the Commission (whether under this Act, the Registration and Accountability of Organisations Schedule or otherwise) if it appears to the Minister that the award, order or decision is contrary to the public interest.

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

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

             (4)  Subject to subsection (5) of this section, subsections 120(4) to (8) apply in relation to a review under this section in the same manner as they apply in relation to an appeal under section 120.

             (5)  Subsections 121(4) to (8) apply in relation to a review under this section in relation to a matter arising under the Registration and Accountability of Organisations Schedule in the same manner as they apply in relation to an appeal under section 121.

             (6)  In a review under this section:

                     (a)  the Commission must take such steps as it thinks appropriate to ensure that each person and organisation bound by the award or otherwise with an interest in the review is made aware of the review; and

                     (b)  the Minister may intervene in the proceeding.

             (7)  Each provision of this Act relating to the performance of the Commission’s functions in relation to awards extends to a review under this section.

             (8)  Nothing in this section affects any right of appeal or any power of a Full Bench under section 120, and an appeal under that section and a review under this section may, if the Full Bench thinks appropriate, be dealt with together.

             (9)  Nothing in this section affects any right of appeal or any power of a Full Bench under section 121, and an appeal under that section and a review under this section may, if the Full Bench thinks appropriate, be dealt with together.

115  Compulsory conferences

             (1)  For the purpose of the performance of a function, or the exercise of a power, of the Commission under this Act or the Registration and Accountability of Organisations Schedule, a member of the Commission may, on the initiative of the member or on application made by a party to, or intervener in, the proceeding, direct a person to attend, at a specified time and place, a conference to be presided over by a member of the Commission or another person nominated by the President.

Note:          Contravening a direction may be an offence under section 815.

             (2)  A direction may be given to anyone whose presence at the conference the member considers would help in the performance of a function under this Act or the Registration and Accountability of Organisations Schedule.

             (3)  The conference must be held in private except to the extent that the person presiding over the conference directs that it be held in public.

             (4)  This section does not apply to the performance of a function under Part 9.

116  Power to override certain laws affecting public sector employment

             (1)  In so far as the performance of its functions under this Act or the Registration and Accountability of Organisations Schedule involves public sector employment, the Commission may, where it considers it proper to do so, make an award or order that is not, or in its opinion may not be, consistent with a relevant law of the Commonwealth or of an internal Territory.

             (2)  In this section:

enactment means an ordinance made under the Northern Territory (Administration) Act 1910 and continued in force by the Northern Territory (Self‑Government) Act 1978.

relevant law means a law of the Commonwealth or an internal Territory relating to matters pertaining to the relationship between employers and employees in public sector employment, other than:

                     (a)  the Safety, Rehabilitation and Compensation Act 1988, the Long Service Leave (Commonwealth Employees) Act 1976, the Superannuation Act 1976, the Superannuation Act 1990 or the Superannuation Act 2005; or

                     (b)  a prescribed Act or enactment, or prescribed provisions of an Act or enactment.

             (3)  This section does not apply to the performance of a function under Part 12.

117  State authorities may be restrained from dealing with matter that is before the Commission

             (1)  If it appears to a Full Bench that a State industrial authority is dealing or is about to deal with a matter that is the subject of a proceeding before the Commission under this Act or the Registration and Accountability of Organisations Schedule, the Full Bench may make an order restraining the State industrial authority from dealing with the matter.

             (2)  The State industrial authority must, in accordance with the order, cease dealing or not deal, as the case may be, with the matter.

             (3)  An order, award, decision or determination of a State industrial authority made in contravention of the order of a Full Bench under this section is, to the extent of the contravention, void.

118  Joint sessions of Commission

                   If:

                     (a)  the President considers that a question is common to 2 or more proceedings before the Commission; and

                     (b)  the Commission is not constituted by the same person or persons for the purposes of each proceeding;

the President may direct that the Commission constituted by all the persons who constitute the Commission for the purposes of the proceedings may take evidence or hear argument, or take evidence and hear argument, as to the question for the purposes of both or all of the proceedings.

119  Revocation and suspension of awards and orders

             (1)  An organisation, a person interested or the Minister may apply to the President, and a member of the Commission or a Registrar may refer a matter to the President, for action by a Full Bench under this section.

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

             (3)  If a matter is referred to the President under subsection (1), the President may establish a Full Bench to hear and determine the matter.

             (4)  If it appears to the Full Bench:

                     (a)  that an organisation has contravened this Act, the Registration and Accountability of Organisations Schedule or an award or order of the Commission; or

                     (b)  that a substantial number of the members of an organisation refuse to accept employment either at all or in accordance with existing awards or orders; or

                     (c)  that for any other reason an award or order should be suspended or revoked in whole or part;

the Full Bench may, subject to such conditions as it thinks appropriate, make an order revoking, or suspending for such period as it thinks appropriate, the award or order or any of the terms of the award or an order.

             (5)  The Full Bench may also make such other orders as it thinks appropriate in relation to the operation of:

                     (a)  if the Full Bench revokes or suspends an award or order on a ground referred to in paragraph (4)(a) or (b)—any other award or order that binds the organisation; or

                     (b)  in any other case—any other award or order that applies in relation to the employment of:

                              (i)  members of an organisation that is bound by the revoked or suspended award or order; or

                             (ii)  persons eligible to be members of such an organisation.

             (6)  The revocation or suspension of all or any of the terms of an award or order may be expressed to apply only in relation to:

                     (a)  a particular organisation or person bound by the award or order; or

                     (b)  a particular branch of an organisation; or

                     (c)  a particular class of members of an organisation; or

                     (d)  a particular locality.


 

Division 5Appeals to Full Bench and references to Court

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

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

                     (c)  a decision of a member of the Commission under paragraph 111(1)(e); and

                     (d)  a decision of a member of the Commission to vary, or not to vary, an award under section 812; and

                     (e)  a decision of the Commission to vary, or not to vary, an award or workplace agreement that has been referred to the Commission under section 46PW of the Human Rights and Equal Opportunity Commission Act 1986; and

                      (f)  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)(a) that is not covered by paragraph (b) or (c) of this subsection—by an organisation or person bound by the award or order;

                     (b)  in the case of an appeal under paragraph (1)(a) against an order under Part 12—by a person entitled under section 685 to institute the appeal; and

                     (c)  in the case of an appeal under paragraph (1)(a) against an order that was made under subsection 590(1) or subclause 14(1) or 23(1) of Schedule 9—by the person who applied for the order or any person who made submissions to the Commission on whether the order should be made; and

                     (d)  in the case of an appeal under paragraph (1)(b) against a decision not to make an order under subsection 590(1) or subclause 14(1) or 23(1) of Schedule 9—by the person who applied for the order;

                     (e)  in the case of an appeal under paragraph (1)(d) in relation to an award—by:

                              (i)  an employer, employee or organisation bound by the award; or

                             (ii)  the Workplace Authority Director; and

                      (f)  in the case of an appeal under paragraph (1)(e)—by a party to the review of the award or workplace agreement; and

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

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

             (5)  A Full Bench may direct that 2 or more appeals be heard together, but an organisation or person who has a right to be heard in relation to one of the appeals may be heard in relation to a matter raised in another of the appeals only with the leave of the Full Bench.

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

                     (a)  may admit further evidence; and

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

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

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

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

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

                     (d)  in the case of an appeal under paragraph (1)(c)—take any action (including making an award or order) that could have been taken if the decision under paragraph 111(1)(e) 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.

121  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 in proceedings under that Schedule, other than an order made by consent of the parties to the proceeding; 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)(e) 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)(e) 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.

122  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 6Miscellaneous

123  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.

124  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 643.

             (2)  A Rule of the Commission:

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

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

             (3)  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.

125  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.

126  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 4Australian Industrial Registry

Division 1Interpretation

127  Definition of State industrial body

                   In this Part:

State industrial body means a court, tribunal, board, authority or other body of a State.


 

Division 2Establishment and functions of Australian Industrial Registry

128  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 149.

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

129  Functions of the Industrial Registry

             (1)  The functions of the Industrial Registry are:

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

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

                     (c)  such other functions as are conferred on the Industrial Registry by this Act, the BCII Act or the Registration and Accountability of Organisations Schedule.

             (2)  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 (3) and (4) apply subject to the agreement.

             (3)  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.

             (4)  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.

             (5)  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.

130  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.

131  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.

132  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 3Registrars

133  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.

             (3)  If an agreement is made between the Minister and the appropriate authority of a State as mentioned in subsection 129(2), 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 129(4)(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 129(4)(a)(ii)—the 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 129(5) 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 129(5), the Industrial Registrar has, and must perform, those functions or duties, or may exercise those powers, as the case may be.

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

             (6)  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.

             (7)  In performing or exercising any functions, duties or powers in relation to a State industrial body as mentioned in subsection (3) or (4), the Industrial Registrar must comply with any directions lawfully given by the body.

             (8)  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.

134  Tenure of office of Industrial Registrar

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

             (2)  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.

135  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.

136  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.

137  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.

138  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.

139  Resignation by Industrial Registrar

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

140  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 136; or

                     (d)  fails, without reasonable excuse, to comply with section 137.

141  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 129(2), 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 129(4)(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 129(4)(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 129(5) 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 129(5), 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.

142  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.

143  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.

144  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 3.


 

Division 4References and appeals

145  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.

146  Removal of matters before Registrar

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

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

                     (a)  the President;

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

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

147  Appeals from Registrar to Commission

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

                     (a)  the making of any decision, or the doing of any act, by a Registrar in a matter arising under this Act, the Registration and Accountability of Organisations Schedule (to the extent permitted by that Schedule) or any other Act; or

                     (b)  the refusal or failure of a Registrar to make any decision or do any act in a matter arising under this Act, the Registration and Accountability of Organisations Schedule (to the extent permitted by that Schedule) or any other Act.

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

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

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

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

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

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

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

                     (a)  the President;

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

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

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

148  References to Court by Registrar on question of law

             (1)  A Registrar may refer a question of law arising in a matter before the Registrar under this Act or the Registration and Accountability of Organisations Schedule for the opinion of the Court.

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


 

Division 5Staff

149  Staff

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

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

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

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


 

Part 5Workplace Authority Director

Division 1Workplace Authority Director

Subdivision AEstablishment and functions

150A  Workplace Authority Director

                   There is to be a Workplace Authority Director.

150B  Functions of Workplace Authority Director

             (1)  The functions of the Workplace Authority Director are as follows:

                     (a)  to promote an understanding of Commonwealth workplace relations legislation, including by making available to the public general information and guidance about the operation of the legislation;

                     (b)  to provide education, assistance and advice to employees, employers and organisations in relation to their rights and obligations under Commonwealth workplace relations legislation;

                     (c)  to promote the making of workplace agreements;

                     (d)  to provide education, assistance and advice to employees, employers (especially employers in small business) and organisations in relation to workplace agreements;

                     (e)  to accept lodgment of:

                              (i)  workplace agreements; and

                             (ii)  notices about transmission of instruments;

                      (f)  to decide under Division 5A of Part 8 whether workplace agreements pass the no‑disadvantage test;

                     (g)  to authorise multiple‑business agreements in accordance with the regulations;

                     (h)  to analyse workplace agreements;

                      (i)  to refer matters to the Workplace Ombudsman and workplace inspectors;

                      (j)  to perform any other function conferred on the Workplace Authority Director by Commonwealth workplace relations legislation, the Registration and Accountability of Organisations Schedule or another Act.

             (2)  In performing his or her functions relating to workplace agreements, the Workplace Authority Director must have particular regard to:

                     (a)  the needs of workers in disadvantaged bargaining positions, including, for example, women, people from a non‑English speaking background, young people, apprentices, trainees and outworkers; and

                     (b)  encouraging parties to agreement‑making to take account of those needs; and

                     (c)  assisting workers to balance work and family responsibilities; and

                     (d)  the need to prevent and eliminate discrimination because of, or for reasons including, race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

150C  Minister may give directions to Workplace Authority Director

             (1)  The Minister may, by legislative instrument, give written directions to the Workplace Authority Director about the performance of his or her functions.

             (2)  Directions given by the Minister under subsection (1) must be of a general nature only, and cannot relate to a particular case.

             (3)  The Minister must not direct the Workplace Authority Director in relation to the Workplace Authority Director’s performance of functions, or exercise of powers, as an Agency Head under the Public Service Act 1999.

             (4)  The Workplace Authority Director must comply with any direction given by the Minister under subsection (1).

             (5)  Section 42 (Disallowance of legislative instruments) of the Legislative Instruments Act 2003 applies to a direction given under subsection (1) of this section, despite section 44 of that Act.

Subdivision BAppointment and terms and conditions

151A  Appointment of Workplace Authority Director

             (1)  The Workplace Authority Director is to be appointed by the Governor‑General by written instrument.

             (2)  The Governor‑General must not appoint a person as the Workplace Authority Director unless the Minister is satisfied that the person:

                     (a)  has suitable qualifications or experience; and

                     (b)  is of good character.

             (3)  The Workplace Authority Director holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

             (4)  The Workplace Authority Director holds office on a full‑time basis.

151B  Remuneration

             (1)  The Workplace Authority Director 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 Workplace Authority Director is to be paid the remuneration that is prescribed.

             (2)  The Workplace Authority Director is to be paid the allowances that are prescribed.

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

151C  Leave of absence

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

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

151D  Other terms and conditions

                   The Workplace Authority Director holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Governor‑General.

151E  Outside employment

                   The Workplace Authority Director must not engage in paid employment outside the duties of the Workplace Authority Director’s office without the Minister’s approval.

151F  Disclosure of interests

                   The Workplace Authority Director must give written notice to the Minister of all interests, pecuniary or otherwise, that the Workplace Authority Director has or acquires that could conflict with the proper performance of the Workplace Authority Director’s functions.

151G  Acting appointments

             (1)  The Minister may appoint a person to act as the Workplace Authority Director:

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

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

             (2)  The Minister must not appoint a person to act as the Workplace Authority Director unless the Minister is satisfied that the person:

                     (a)  has suitable qualifications or experience; and

                     (b)  is of good character.

             (3)  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.

151H  Resignation

             (1)  The Workplace Authority Director 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.

151J  Termination of appointment

             (1)  The Governor‑General may terminate the appointment of the Workplace Authority Director for misbehaviour or physical or mental incapacity.

             (2)  The Governor‑General must terminate the appointment of the Workplace Authority Director if:

                     (a)  the Workplace Authority Director:

                              (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 Workplace Authority Director is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

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

                     (d)  the Workplace Authority Director fails, without reasonable excuse, to comply with section 151F.


 

Division 2Workplace Authority Deputy Directors

152A  Workplace Authority Deputy Directors

                   The Workplace Authority Director is to be assisted by as many Workplace Authority Deputy Directors as are appointed from time to time.

152B  Appointment of Workplace Authority Deputy Director

             (1)  A Workplace Authority Deputy Director is to be appointed by the Minister by written instrument.

             (2)  The Minister must not appoint a person as a Workplace Authority Deputy Director unless the Minister is satisfied that the person:

                     (a)  has suitable qualifications or experience; and

                     (b)  is of good character.

             (3)  A Workplace Authority Deputy Director holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

             (4)  A Workplace Authority Deputy Director is to be appointed on a full‑time or part‑time basis.

152C  Remuneration

             (1)  A Workplace Authority Deputy Director 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, a Workplace Authority Deputy Director is to be paid the remuneration that is prescribed.

             (2)  A Workplace Authority Deputy Director is to be paid the allowances that are prescribed.

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

152D  Leave of absence

             (1)  A full‑time Workplace Authority Deputy Director has the recreation leave entitlements that are determined by the Remuneration Tribunal.

             (2)  The Minister may grant a full‑time Workplace Authority Deputy Director leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

             (3)  The Minister may grant a part‑time Workplace Authority Deputy Director leave of absence on the terms and conditions as to remuneration or otherwise that the Minister determines.

152E  Other terms and conditions

                   A Workplace Authority Deputy Director holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.

152F  Outside employment

             (1)  A full‑time Workplace Authority Deputy Director must not engage in paid employment outside the duties of the Workplace Authority Deputy Director’s office without the Minister’s approval.

             (2)  A part‑time Workplace Authority Deputy Director must not engage in any paid employment that conflicts or may conflict with the proper performance of the Workplace Authority Deputy Director’s duties.

152G  Disclosure of interests

                   A Workplace Authority Deputy Director must give written notice to the Minister of all interests, pecuniary or otherwise, that the Workplace Authority Deputy Director has or acquires that could conflict with the proper performance of the Workplace Authority Deputy Director’s functions.

152H  Resignation

             (1)  A Workplace Authority Deputy Director 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.

152J  Termination of appointment

             (1)  The Minister may terminate the appointment of a Workplace Authority Deputy Director for misbehaviour or physical or mental incapacity.

             (2)  The Minister must terminate the appointment of a Workplace Authority Deputy Director if:

                     (a)  the Workplace Authority Deputy Director:

                              (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 Workplace Authority Deputy Director is appointed on a full‑time basis and is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

                     (c)  the Workplace Authority Deputy Director is appointed on a full‑time basis and engages, except with the Minister’s approval, in paid employment outside the duties of his or her office; or

                     (d)  the Workplace Authority Deputy Director is appointed on a part‑time basis and engages in paid employment that conflicts or could conflict with the proper performance of the duties of his or her office; or

                     (e)  the Workplace Authority Deputy Director fails, without reasonable excuse, to comply with section 152G.


 

Division 3Staff, delegations etc.

153A  Staff

                   The staff assisting the Workplace Authority Director in the performance of the Workplace Authority Director’s functions must be persons engaged under the Public Service Act 1999.

153B  Workplace Authority

             (1)  The Workplace Authority is established by this subsection.

             (2)  The Workplace Authority consists of:

                     (a)  the Workplace Authority Director; and

                     (b)  the Workplace Authority Deputy Directors; and

                     (c)  the staff assisting the Workplace Authority Director.

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

                     (a)  the Workplace Authority Director and the staff assisting the Workplace Authority Director together constitute a Statutory Agency; and

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

153C  Delegation

             (1)  The Workplace Authority Director may, in writing, delegate to a person appointed or employed by the Commonwealth any of the Workplace Authority Director’s powers or functions.

             (2)  In exercising powers or functions under a delegation, the delegate must comply with any directions of the Workplace Authority Director.


 

Division 4Reporting and disclosing information

Subdivision AReporting

163A  Minister may require reports

             (1)  The Minister may, in writing, direct the Workplace Authority Director to give the Minister specified reports relating to the Workplace Authority Director’s functions.

             (2)  The Workplace Authority Director must comply with the direction.

             (3)  A direction made under subsection (1) is not a legislative instrument.

             (4)  If the report is made in writing, the report is not a legislative instrument.

163B  Annual report

                   The Workplace Authority Director must, as soon as practicable after the end of each financial year, prepare and give to the Minister, for presentation to the Parliament, a report on the operations of the Workplace Authority during that year.

Note:          See also section 34C of the Acts Interpretation Act 1901, which contains extra rules about annual reports.

163C  Reports not to include information relating to an individual’s affairs

             (1)  Information relating to the affairs of an individual must not be included in a report under section 163A or 163B if:

                     (a)  the individual is named, or otherwise specifically identified, in the report as the individual to whom the information relates; or

                     (b)  it is reasonably likely that people generally (other than people to whom the individual has disclosed information relating to the individual’s affairs) would be able to work out the identity of the individual to whom the information relates.

             (2)  For the purposes of applying paragraph (1)(b) to information relating to a particular individual’s affairs, the context in which the information appears, and information that is otherwise publicly available, must be taken into account (as well as any other relevant matter).

Subdivision BDisclosing information

164A  Disclosure of information by workplace agreement officials

Disclosure that is necessary or appropriate

             (1)  A workplace agreement official may disclose information he or she acquired in the course of exercising powers, or performing functions, as such an official, if he or she considers on reasonable grounds that it is necessary or appropriate to do so in the course of exercising his or her powers, or performing his or her functions, as such an official.

Disclosure to Minister

             (2)  A workplace agreement official may:

                     (a)  provide aggregated statistical information to the Minister; and

                     (b)  give the Minister, in accordance with the regulations, information and copies of documents.

             (3)  Regulations made for the purposes of paragraph (2)(b) may require that documents given to the Minister are given with such deletions as are necessary to prevent the identification of individuals to whom the documents refer.

Disclosure to Workplace Ombudsman and workplace inspectors

             (4)  A workplace agreement official may:

                     (a)  disclose information that relates to the functions of the Workplace Ombudsman to the Workplace Ombudsman in response to requests from the Workplace Ombudsman; and

                     (b)  disclose information that relates to the functions of workplace inspectors to workplace inspectors in response to requests from workplace inspectors; and

                     (c)  disclose information to the Workplace Ombudsman or workplace inspectors that the workplace agreement official considers on reasonable grounds is likely to assist the Workplace Ombudsman or workplace inspectors in performing their functions.

Disclosure authorised by regulations to prescribed persons

             (5)  The regulations may authorise a prescribed workplace agreement official to disclose information of the prescribed kind, to persons of the prescribed kind, for prescribed purposes.

Limits on disclosure

             (6)  Despite subsections (1), (2) and (4), a prescribed workplace agreement official is not authorised by whichever of those subsections is prescribed to disclose information of the prescribed kind, to persons of the prescribed kind, for prescribed purposes.

             (7)  Despite subsections (1), (2) and (5), a workplace agreement official is not authorised by any of those subsections to disclose to the Minister information relating to a decision under Division 5A of Part 8 whether a particular workplace agreement passes the no‑disadvantage test.

Relationship with the Privacy Act 1988

             (8)  To avoid doubt, a disclosure in accordance with this section of personal information (within the meaning of the Privacy Act 1988) is taken, for the purposes of that Act, to be authorised by law.

Relationship with section 165

             (9)  To avoid doubt, a disclosure in accordance with this section of protected information (as defined in section 165) is taken, for the purposes of that section, to be permitted by this Act.

165  Identity of parties to ITEAs not to be disclosed

             (1)  A person commits an offence if:

                     (a)  the person discloses information; and

                     (b)  the information is protected information; and

                     (c)  the discloser has reasonable grounds to believe that the information will identify another person as being, or having been, a party to an ITEA; and

                     (d)  the disclosure is not made by the discloser in the course of performing functions or duties as a workplace agreement official; and

                     (e)  the disclosure is not required or permitted by this Act, by another Act, by regulations made for the purposes of this paragraph or another provision of this Act or by regulations made for the purposes of another Act; and

                      (f)  the person whose identity is disclosed has not, in writing, authorised the disclosure.

Penalty:  Imprisonment for 6 months.

          (1A)  To avoid doubt, a disclosure in accordance with subsection (1) of personal information (within the meaning of the Privacy Act 1988) is taken, for the purposes of that Act, to be authorised by law.

             (2)  In this section:

protected information, in relation to a person, means information that the person acquired:

                     (a)  in the course of performing functions or duties, or exercising powers, as a workplace agreement official; or

                     (b)  from a workplace agreement official who acquired the information as mentioned in paragraph (a).

166  Publication of workplace agreements etc. by Workplace Authority Director

                   Subject to section 165, the Workplace Authority Director may publish or make available copies of, or extracts from, workplace agreements.


 

Part 5AWorkplace Ombudsman

Division 1Establishment and functions

166A  Workplace Ombudsman

                   There is to be a Workplace Ombudsman.

166B  Functions of the Workplace Ombudsman

                   The functions of the Workplace Ombudsman are as follows:

                     (a)  to assist employees and employers to understand their rights and obligations under Commonwealth workplace relations legislation;

                     (b)  to promote compliance with Commonwealth workplace relations legislation, including by providing assistance and advice and disseminating information;

                     (c)  to monitor compliance with Commonwealth workplace relations legislation;

                     (d)  to investigate suspected contraventions of Commonwealth workplace relations legislation;

                     (e)  to inquire into any act or practice that may be contrary to Commonwealth workplace relations legislation;

                      (f)  to refer matters to relevant authorities;

                     (g)  to institute proceedings to enforce Commonwealth workplace relations legislation;

                     (h)  to appoint workplace inspectors;

                      (i)  to give, as necessary, directions relating to the exercise or performance of appointed workplace inspectors’ powers or functions;

                      (j)  to represent employees who are, or might become, a party to proceedings under this Act, in situations where the Workplace Ombudsman considers that representing the employees will promote compliance with Commonwealth workplace relations legislation;

                     (k)  any other functions conferred on the Workplace Ombudsman by Commonwealth workplace relations legislation.

Note:          Among other things, the Workplace Ombudsman has the functions of a workplace inspector because section 167 makes the Workplace Ombudsman a workplace inspector.

166C  Minister may give directions to Workplace Ombudsman

             (1)  The Minister may, by legislative instrument, give written directions to the Workplace Ombudsman about the performance of his or her functions.

             (2)  Directions given by the Minister under subsection (1) must be of a general nature only, and cannot relate to a particular case.

             (3)  The Minister must not direct the Workplace Ombudsman in relation to the Workplace Ombudsman’s performance of functions, or exercise of powers, as an Agency Head under the Public Service Act 1999.

             (4)  The Workplace Ombudsman must comply with any direction given by the Minister under subsection (1).

             (5)  Section 42 (Disallowance of legislative instruments) of the Legislative Instruments Act 2003 applies to a direction given under subsection (1) of this section, despite section 44 of that Act.


 

Division 2Appointment and terms and conditions

166D  Appointment of Workplace Ombudsman

             (1)  The Workplace Ombudsman is to be appointed by the Governor‑General by written instrument.

             (2)  The Governor‑General must not appoint a person as the Workplace Ombudsman unless the Minister is satisfied that the person:

                     (a)  has suitable qualifications or experience; and

                     (b)  is of good character.

             (3)  The Workplace Ombudsman holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

             (4)  The Workplace Ombudsman holds office on a full‑time basis.

166E  Remuneration

             (1)  The Workplace Ombudsman 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 Workplace Ombudsman is to be paid the remuneration that is prescribed.

             (2)  The Workplace Ombudsman is to be paid the allowances that are prescribed.

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

166F  Leave of absence

             (1)  The Workplace Ombudsman has the recreation leave entitlements that are determined by the Remuneration Tribunal.

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

166G  Other terms and conditions

                   The Workplace Ombudsman holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Governor‑General.

166H  Outside employment

                   The Workplace Ombudsman must not engage in paid employment outside the duties of the Workplace Ombudsman’s office without the Minister’s approval.

166J  Disclosure of interests

                   The Workplace Ombudsman must give written notice to the Minister of all interests, pecuniary or otherwise, that the Workplace Ombudsman has or acquires that could conflict with the proper performance of the Workplace Ombudsman’s functions.

166K  Acting appointments

             (1)  The Minister may appoint a person to act as the Workplace Ombudsman:

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

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

             (2)  The Minister must not appoint a person to act as the Workplace Ombudsman unless the Minister is satisfied that the person:

                     (a)  has suitable qualifications or experience; and

                     (b)  is of good character.

             (3)  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.

166L  Resignation

             (1)  The Workplace Ombudsman 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.

166M  Termination of appointment

             (1)  The Governor‑General may terminate the appointment of the Workplace Ombudsman for misbehaviour or physical or mental incapacity.

             (2)  The Governor‑General must terminate the appointment of the Workplace Ombudsman if:

                     (a)  the Workplace Ombudsman:

                              (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 Workplace Ombudsman is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

                     (c)  the Workplace Ombudsman engages, except with the Minister’s approval, in paid employment outside the duties of his or her office; or

                     (d)  the Workplace Ombudsman fails, without reasonable excuse, to comply with section 166J.


 

Division 3Staff, delegations etc.

166N  Staff

                   The staff assisting the Workplace Ombudsman in the performance of the Workplace Ombudsman’s functions must be persons engaged under the Public Service Act 1999.

166P  Office of the Workplace Ombudsman

             (1)  The Office of the Workplace Ombudsman is established by this subsection.

             (2)  The Office of the Workplace Ombudsman consists of:

                     (a)  the Workplace Ombudsman; and

                     (b)  the staff assisting the Workplace Ombudsman in the performance of the Workplace Ombudsman’s functions; and

                     (c)  the appointed workplace inspectors.

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

                     (a)  the Workplace Ombudsman and the staff assisting the Workplace Ombudsman in the performance of the Workplace Ombudsman’s functions together constitute a Statutory Agency; and

                     (b)  the Workplace Ombudsman is the Head of that Statutory Agency.

166Q  Delegation

             (1)  The Workplace Ombudsman may, in writing, delegate to an SES employee, or an acting SES employee, in the Office of the Workplace Ombudsman any of the Workplace Ombudsman’s functions and powers under Commonwealth workplace relations legislation.

             (2)  In performing functions or exercising powers under a delegation, the delegate must comply with any directions of the Workplace Ombudsman.

             (3)  Subsection (1) does not apply to the functions and powers of a workplace inspector that the Workplace Ombudsman has because of section 167.

Note:          If the Workplace Ombudsman wants an SES employee, or an acting SES employee, in the Office of the Workplace Ombudsman to have any of the functions or powers of a workplace inspector, the Workplace Ombudsman can appoint the SES employee or acting SES employee as a workplace inspector under section 167.


 

Division 4Reporting and disclosing information

Subdivision AReporting to Minister

166R  Minister may require reports

             (1)  The Minister may, in writing, direct the Workplace Ombudsman to give the Minister specified reports relating to the Workplace Ombudsman’s functions.

Note:          Section 166T restricts the disclosure of personal information in a report.

             (2)  The Workplace Ombudsman must comply with the direction.

             (3)  A direction made under subsection (1) is not a legislative instrument.

             (4)  If the report is made in writing, the report is not a legislative instrument.

166S  Annual report

                   The Workplace Ombudsman must, as soon as practicable after the end of each financial year, prepare and give to the Minister, for presentation to the Parliament, a report on the operations of the Office of the Workplace Ombudsman during that year.

Note:          See also section 34C of the Acts Interpretation Act 1901, which contains extra rules about annual reports.

166T  Reports not to include information relating to an individual’s affairs

             (1)  Information relating to the affairs of an individual must not be included in a report under section 166R or 166S if:

                     (a)  the individual is named, or otherwise specifically identified, in the report as the individual to whom the information relates; or

                     (b)  it is reasonably likely that people generally (other than people to whom the individual has disclosed information relating to the individual’s affairs) would be able to work out the identity of the individual to whom the information relates.

             (2)  For the purposes of applying paragraph (1)(b) to information relating to a particular individual’s affairs, the context in which the information appears, and information that is otherwise publicly available, must be taken into account (as well as any other relevant matter).

Subdivision BDisclosing information

166U  Disclosure of information by members of the Office of the Workplace Ombudsman

Disclosure that is necessary or appropriate

             (1)  A member of the Office of the Workplace Ombudsman may disclose information acquired by the member in the course of exercising powers, or performing functions, as such a member (including as a delegate of the Workplace Ombudsman), if the member considers on reasonable grounds that it is necessary or appropriate to do so in the course of exercising his or her powers, or performing his or her functions, as such a member.

Disclosure to migration officer

             (2)  A member of the Office of the Workplace Ombudsman may disclose information to an officer of the Department administered by the Minister who administers the Migration Act 1958 if the member considers on reasonable grounds that the disclosure of the information is likely to assist the officer in the administration of that Act.

Disclosure authorised by regulations to Commonwealth officers

             (3)  The regulations may authorise prescribed members of the Office of the Workplace Ombudsman to disclose information of the prescribed kind, to officers of the Commonwealth of the prescribed kind, for prescribed purposes.

Disclosure to State workplace relations official

             (4)  A member of the Office of the Workplace Ombudsman may disclose information to an officer of a State who has powers, duties or functions that relate to the administration of a workplace relations or other system relating to terms and conditions, or incidents, of employment, if the member considers on reasonable grounds that the disclosure of the information is likely to assist the officer in the administration of that system.

Disclosure to other officials and authorities

             (5)  A member of the Office of the Workplace Ombudsman may disclose information to:

                     (a)  a person employed by, or appointed to an office of, the Commonwealth, a State or a Territory; or

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

if the member considers on reasonable grounds that the disclosure of the information is likely to assist the person or authority in discharging a responsibility of the person or authority relating to the administration of a law of the Commonwealth, a State or a Territory.

Relationship with other laws

             (6)  To avoid doubt, a disclosure in accordance with this section of personal information (within the meaning of the Privacy Act 1988) is taken, for the purposes of that Act, to be authorised by law.

166V  Directions about exercise of powers to disclose information

             (1)  The Workplace Ombudsman may, by legislative instrument, give written directions to the members of the Office of Workplace Ombudsman about the disclosure of information under section 166U.

             (2)  Directions given by the Workplace Ombudsman under subsection (1) must be of a general nature only.

             (3)  A member of the Office of Workplace Ombudsman must comply with any direction given by the Workplace Ombudsman under subsection (1).


 

Part 6Workplace inspectors

  

167  Inspectors

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

          (1A)  The Workplace Ombudsman is a workplace inspector by force of this subsection.

             (2)  The Workplace Ombudsman may, by instrument, appoint as a workplace inspector:

                     (a)  a person who has been appointed, or who is employed, by the Commonwealth; or

                     (b)  a person, other than a person mentioned in paragraph (a).

             (3)  A person appointed under paragraph (2)(a) is appointed for the period specified in regulations made for the purposes of this subsection.

             (4)  A person appointed under paragraph (2)(b) is appointed for the period specified in the person’s instrument of appointment, which must not be longer than the period specified in regulations made for the purposes of this subsection.

             (5)  Subject to subsection (6), a workplace inspector has the powers and functions conferred on a workplace inspector by this Act or by the regulations or by another Act.

             (6)  A person appointed under paragraph (2)(b) to be a workplace inspector has only such of the powers and functions mentioned in subsection (5) as are specified in his or her instrument of appointment.

             (7)  In exercising powers or performing functions as a workplace inspector, a workplace inspector appointed under subsection (2) must comply with any directions of the Workplace Ombudsman.

             (8)  If a direction under subsection (7) is of general application, the direction is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

             (9)  If a direction under subsection (7) relates to a particular case, the direction is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.

168  Identity cards

             (1)  The Workplace Ombudsman may issue to an inspector an identity card in a form approved by the Workplace Ombudsman.

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

             (3)  A person commits an offence if:

                     (a)  the person ceases to be a workplace inspector; and

                     (b)  the person does not return the person’s identity card to the Workplace Ombudsman within 14 days of so ceasing.

Penalty:  1 penalty unit.

             (4)  Subsection (3) is an offence of strict liability.

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

169  Powers of inspectors

Purpose for which powers of inspectors can be exercised

             (1)  The powers of a workplace inspector under this section may be exercised:

                     (a)  for the purpose of determining whether any of the following are being, or have been, observed:

                              (i)  workplace agreements;

                             (ii)  awards;

                            (iii)  the Australian Fair Pay and Conditions Standard;

                            (iv)  minimum entitlements and orders under Part 12;

                             (v)  the requirements of this Act and the regulations; or

                     (b)  for the purposes of a provision of the regulations that confers powers or functions on inspectors.

Note:          Workplace determinations are treated for the purposes of the Act as if they were collective agreements (see section 506). Undertakings are treated the same way (see section 394). This means that inspectors also have powers in relation to those instruments.

Powers of inspectors

             (2)  The powers of an inspector are:

                     (a)  to, without force, enter:

                              (i)  premises on which the inspector has reasonable cause to believe that work to which an instrument or entitlement mentioned in subparagraphs (1)(a)(i) to (iv) applies is being or has been performed; or

                             (ii)  a place of business in which the inspector has reasonable cause to believe that there are documents relevant to the purpose set out in subsection (1); and

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

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

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

                            (iii)  to interview any person; and

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

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

                            (vi)  to require a person to tell the inspector who has custody of a document; and

                     (c)  to require a person, by notice, to produce a document to the inspector.

Note:          Contravening a requirement under subparagraph (b)(iv) or paragraph (c) may be an offence under section 819.

When may the powers be exercised?

             (3)  An inspector may exercise the powers in subsection (2) at any time during ordinary working hours or at any other time at which it is necessary to do so for the purpose set out in subsection (1).

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

Note:          Contravening a requirement under this section to produce a document may be an offence under section 819.

             (5)  Where a document is produced to an inspector under paragraph (2)(c) or subsection (4), the inspector may:

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

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

             (6)  During the period for which an inspector retains a document, the inspector shall permit the person otherwise entitled to possession of the document, or a person authorised by the person, to inspect, and make copies of or take extracts from, the document at all reasonable times.

Notices under paragraph (2)(c)

             (7)  The notice referred to in paragraph (2)(c) must:

                     (a)  be in writing; and

                     (b)  be served on the person; and

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

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

Person must produce document even if it may incriminate them

             (8)  A person is not excused from producing a document under this section on the ground that the production of the document may tend to incriminate the person.

Limited use immunity for documents produced

             (9)  If an individual produces a document under this section, the document produced and any information or thing (including any document) obtained as a direct or indirect consequence of the production of the document is not admissible in evidence against the individual in any criminal proceedings unless it is proceedings for an offence against section 819.

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

In Australia’s exclusive economic zone

           (11)  Subsection (2) extends to premises, and places of business, that:

                     (a)  are in Australia’s exclusive economic zone; and

                     (b)  are owned or occupied by an Australian employer.

This subsection has effect subject to Australia’s obligations under international law concerning jurisdiction over ships that fly the flag of a foreign country and aircraft registered under the law of a foreign country.

On Australia’s continental shelf outside exclusive economic zone

           (12)  Subsection (2) also extends to premises, and places of business, that:

                     (a)  are outside the outer limits of Australia’s exclusive economic zone, but in, on or over a part of Australia’s continental shelf that is prescribed by the regulations for the purposes of this subsection; and

                     (b)  are connected with the exploration of the continental shelf or the exploitation of its natural resources; and

                     (c)  meet the requirements that are prescribed by the regulations for that part.

Note:          The regulations may prescribe different requirements relating to different parts of Australia’s continental shelf. The regulations may need to do so to give effect to Australia’s international obligations.


 

Part 7The Australian Fair Pay and Conditions Standard

Division 1Preliminary

171  Purpose of Part

             (1)  The purpose of this Part is to set out key minimum entitlements of employment.

             (2)  The key minimum entitlements relate to the following matters:

                     (a)  basic rates of pay and casual loadings (see Division 2);

                     (b)  maximum ordinary hours of work (see Division 3);

                     (c)  annual leave (see Division 4);

                     (d)  personal leave (see Division 5);

                     (e)  parental leave and related entitlements (see Division 6).

             (3)  The provisions of Divisions 2 to 6 constitute the Australian Fair Pay and Conditions Standard.

172  Operation of the Australian Fair Pay and Conditions Standard

             (1)  The Australian Fair Pay and Conditions Standard provides key minimum entitlements of employment for the employees to whom it applies.

             (2)  The Australian Fair Pay and Conditions Standard prevails over a workplace agreement or a contract of employment that operates in relation to an employee to the extent to which, in a particular respect, the Australian Fair Pay and Conditions Standard provides a more favourable outcome for the employee.

             (3)  A dispute about:

                     (a)  whether the Australian Fair Pay and Conditions Standard provides a more favourable outcome for an employee in a particular respect than a workplace agreement that operates in relation to that employee; or

                     (b)  what the outcome is for an employee in a particular respect under the Australian Fair Pay and Conditions Standard, where a workplace agreement operates in relation to that employee;

is to be resolved using the dispute settlement procedure included (or taken to be included) in the agreement.

             (4)  The regulations may prescribe:

                     (a)  what a particular respect is or is not for the purposes of subsection (2) or (3); or

                     (b)  the circumstances in which the Australian Fair Pay and Conditions Standard provides or does not provide a more favourable outcome in a particular respect.

Example 1: The way in which particular amounts of annual leave are accrued could be prescribed as a particular respect under paragraph (4)(a).

Example 2: Both the Standard and a workplace agreement require an employee to attest to certain matters in a statutory declaration made for the purposes of maternity leave. The matters required by the agreement are different in some respects from those set out in the Standard. Regulations made for the purposes of paragraph (4)(b) could prescribe the matters to be attested in a statutory declaration as a circumstance in which the Standard is not taken to provide a more favourable outcome.

173  Australian Fair Pay and Conditions Standard cannot be excluded

                   A term of a workplace agreement or a contract has no effect to the extent to which it purports to exclude the Australian Fair Pay and Conditions Standard or any part of it.

174  Extraterritorial extension

             (1)  This Part, and the rest of this Act so far as it relates to this Part, extend:

                     (a)  to an employee outside Australia who meets any of the conditions in this section; and

                     (b)  to the employee’s employer (whether the employer is in or outside Australia); and

                     (c)  to acts, omissions, matters and things relating to the employee (whether they are in or outside Australia).

Note:          In this context, Australia includes the Territory of Christmas Island, the Territory of Cocos (Keeling) Islands and the coastal sea. See section 15B and paragraph 17(a) of the Acts Interpretation Act 1901.

In Australia’s exclusive economic zone

             (2)  One condition is that the employee is in Australia’s exclusive economic zone and either:

                     (a)  is an employee of an Australian employer and is not prescribed by the regulations as an employee to whom this subsection does not apply; or

                     (b)  is an employee prescribed by the regulations as an employee to whom this subsection applies.

Note:          The regulations may prescribe the employee by reference to a class. See subsection 13(3) of the Legislative Instruments Act 2003.

On Australia’s continental shelf outside exclusive economic zone

             (3)  Another condition is that the employee:

                     (a)  is outside the outer limits of Australia’s exclusive economic zone, but is in, on or over a part of Australia’s continental shelf that is prescribed by the regulations for the purposes of this subsection, in connection with the exploration of the continental shelf or the exploitation of its natural resources; and

                     (b)  meets the requirements that are prescribed by the regulations for that part.

Note:          The regulations may prescribe different requirements relating to different parts of Australia’s continental shelf. The regulations may need to do so to give effect to Australia’s international obligations.

Outside Australia’s exclusive economic zone and continental shelf

             (4)  Another condition is that the employee:

                     (a)  is neither in Australia’s exclusive economic zone nor in, on or over a part of Australia’s continental shelf described in paragraph (3)(a); and

                     (b)  is an employee of an Australian employer; and

                     (c)  is an Australian‑based employee or bound by a workplace agreement that binds the employer too; and

                     (d)  is not prescribed by the regulations as an employee to whom this subsection does not apply.

             (5)  Another condition is that the employee:

                     (a)  is neither in Australia’s exclusive economic zone nor in, on or over a part of Australia’s continental shelf described in paragraph (3)(a); and

                     (b)  is an Australian‑based employee of an employer that is not an Australian employer; and

                     (c)  is bound by a workplace agreement that binds the employer too; and

                     (d)  is not prescribed by the regulations as an employee to whom this subsection does not apply.

Definition

             (6)  In this section:

this Act includes the Registration and Accountability of Organisations Schedule and regulations made under it.

175  Model dispute resolution process

                   The model dispute resolution process applies to a dispute about entitlements under Divisions 3 to 6.

Note:          The model dispute resolution process is set out in Part 13.


 

Division 2Wages

Subdivision APreliminary

176  AFPC’s wage‑setting parameters etc.

                   In exercising any of its powers under this Division, the AFPC must act in accordance with section 23 (AFPC’s wage‑setting parameters).

Note:          Any additional considerations or limitations on the exercise of the AFPC’s powers are set out in the various sections of this Division (including section 222).

178  Definitions

                   In this Division:

APCS means a preserved APCS or a new APCS.

Note:          APCS is short for Australian Pay and Classification Scale.

APCS piece rate employee means an employee in relation to whom the following paragraphs are satisfied:

                     (a)  the employee’s employment is covered by an APCS;

                     (b)  the rate provisions of the APCS determine one or more basic piece rates of pay that apply to the employment of the employee.

basic periodic rate of pay means a rate of pay for a period worked (however the rate is described) that does not include incentive‑based payments and bonuses, loadings, monetary allowances, penalty rates or any other similar separately identifiable entitlements. The meaning of basic periodic rate of pay is also affected by section 210.

Note:          Most of the kinds of entitlement excluded from this definition are allowable award matters (see section 513).

basic piece rate of pay means a piece rate of pay, other than a piece rate of pay that is payable, as an incentive‑based payment or bonus, in addition to a basic periodic rate of pay.

Note:          Incentive‑based payments and bonuses are allowable award matters.

casual loading: the meaning of casual loading is affected by section 210.

casual loading provisions has the meaning given by section 179.

classification has the meaning given by section 180.

coverage provisions means:

                     (a)  for a pre‑reform wage instrument—all provisions (whether of that instrument or of another instrument or law), as in force on the reform comparison day, that would have affected the determination of whether the employment of any particular employee was covered by the instrument on that day; or

                     (b)  for an APCS—provisions of the APCS that determine whether the employment of a particular employee is covered by the APCS.

Note:          For a preserved APCS, the coverage provisions will (at least initially) be the coverage provisions for the pre‑reform wage instrument from which the APCS is derived (see paragraph 208(1)(g)).

covered: for when the employment of a particular employee is covered by a particular APCS, see sections 204 and 205.

current circumstances of employment, in relation to an employee, includes any current circumstance of or relating to the employee’s employment.

default casual loading percentage has the meaning given by section 186.

derived from: for when a preserved APCS is derived from a particular pre‑reform wage instrument, see subsection 208(2).

employee with a disability means an employee who is qualified for a disability support pension as set out in section 94 or 95 of the Social Security Act 1991, or who would be so qualified but for paragraph 94(1)(e) or 95(1)(c) of that Act.

FMW for an employee: for when there is an FMW for an employee, see section 194.

Note:          FMW is short for Federal Minimum Wage.

frequency of payment provisions means:

                     (a)  for a pre‑reform wage instrument—provisions (whether of that instrument or of another instrument or law), as in force on the reform comparison day, that would have determined the frequency with which an employee covered by the instrument had to be paid; or

                     (b)  for an APCS, a workplace agreement or a contract of employment—provisions of the APCS, workplace agreement or contract that determine the frequency with which an employee covered by the APCS, workplace agreement or contract must be paid.

Note:          For a preserved APCS, the frequency of payment provisions will (at least initially) be the frequency of payment provisions (if any) for the pre‑reform wage instrument from which the APCS is derived (see paragraph 208(1)(f)).

junior employee means an employee who is under the age of 21.

new APCS means an APCS determined under subsection 214(1) of this Act before the repeal of that subsection by the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008.

piece rate of pay means a rate of pay that is expressed as a rate for a quantifiable output or task (as opposed to being expressed as a rate for a period worked).

Note:          The following are examples of piece rates of pay:

(a)           a rate of pay calculated by reference to number of articles produced;

(b)           a rate of pay calculated by reference to number of kilometres travelled;

(c)           a rate of pay calculated by reference to number of articles delivered;

(d)           a rate of pay calculated by reference to number of articles sold;

(e)           a rate of pay calculated by reference to number of tasks performed.

pre‑reform federal wage instrument means:

                     (a)  an award (as defined in subsection 4(1) of this Act as in force immediately before the reform commencement) as in force immediately before the reform commencement, but not including:

                              (i)  an order under section 120A of this Act as then in force; or

                             (ii)  an award under section 170MX of this Act as then in force; or

                     (b)  sections 552 and 555 of this Act as in force immediately before the reform commencement; or

                     (c)  a law, or a provision of a law, of the Commonwealth, being a law or provision:

                              (i)  as in force immediately before the reform commencement; and

                             (ii)  that is specified, or is of a kind specified, in regulations made for the purposes of this paragraph; or

                     (d)  an instrument made under a law, or a provision of a law, of the Commonwealth, being an instrument:

                              (i)  as in force immediately before the reform commencement; and

                             (ii)  that is specified, or is of a kind specified, in regulations made for the purposes of this paragraph.

Note:          For when regulations made for the purpose of paragraph (c) or (d) may be expressed to take effect, see section 213.

pre‑reform non‑federal wage instrument means a pre‑reform State wage instrument or a pre‑reform Territory wage instrument.

pre‑reform State wage instrument means:

                     (a)  a State award (as defined in subsection 4(1) of this Act as in force immediately before the reform commencement) as in force immediately before the reform commencement; or

                     (b)  a law, or a provision of a law, of a State, being a law or provision:

                              (i)  as in force immediately before the reform commencement; and

                             (ii)  that entitled employees, or a particular class of employees, to payment of a particular rate of pay; or

                     (c)  a law, or a provision of a law, of a State, being a law or provision:

                              (i)  as in force immediately before the reform commencement; and

                             (ii)  that is specified, or is of a kind specified, in regulations made for the purposes of this paragraph; or

                     (d)  an instrument made under a law, or a provision of a law, of a State, being an instrument:

                              (i)  as in force immediately before the reform commencement; and

                             (ii)  that is specified, or is of a kind specified, in regulations made for the purposes of this paragraph.

Note:          For when regulations made for the purpose of paragraph (c) or (d) may be expressed to take effect, see section 213.

pre‑reform Territory wage instrument means:

                     (a)  a law, or a provision of a law, of a Territory, being a law or provision:

                              (i)  as in force immediately before the reform commencement; and

                             (ii)  that entitled employees, or a particular class of employees, to payment of a particular rate of pay; or

                     (b)  a law, or a provision of a law, of a Territory, being a law or provision:

                              (i)  as in force immediately before the reform commencement; and

                             (ii)  that is specified, or is of a kind specified, in regulations made for the purposes of this paragraph; or

                     (c)  an instrument made under a law, or a provision of a law, of a Territory, being an instrument:

                              (i)  as in force immediately before the reform commencement; and

                             (ii)  that is specified, or is of a kind specified, in regulations made for the purposes of this paragraph.

Note:          For when regulations made for the purpose of paragraph (b) or (c) may be expressed to take effect, see section 213.

pre‑reform wage instrument means a pre‑reform federal wage instrument or a pre‑reform non‑federal wage instrument.

preserved APCS has the meaning given by subsection 208(1).

pro‑rata disability pay method means a method for determining a rate of pay for employees with a disability, being a method that determines the rate by reference to the relative capacities of those employees.

rate provisions has the meaning given by section 181.

reform comparison day means the day before the day on which the reform commencement occurs.

special FMW means a special FMW determined under section 197 of this Act before the repeal of that section by the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008.

standard FMW has the meaning given by section 195.

179  Meaning of casual loading provisions

             (1)  For the purposes of this Division, casual loading provisions, of a pre‑reform wage instrument or an APCS, are provisions of the instrument or APCS that determine a casual loading payable to an employee, or an employee of a particular classification, in addition to a basic periodic rate of pay.

             (2)  The means by which such provisions may determine a casual loading include the following, or any combination of any of the following:

                     (a)  direct specification of the loading;

                     (b)  identification of the loading by reference to other provisions (whether or not of the same instrument or APCS);

                     (c)  direct specification, or identification by reference to other provisions (whether or not of the same instrument or APCS), of a method for calculating the loading.

             (3)  Subject to the regulations, a method referred to in subsection (2) may provide for a person or body to determine a loading in a particular way. For the purposes of this Division, a loading determined by the person or body in that way is taken to be a loading determined by the provisions that specify or identify the method.

180  Meaning of classification

             (1)  For the purposes of this Division, a classification of employees is a classification or category of employees, however described in the pre‑reform wage instrument or APCS concerned.

             (2)  A classification or category of employees may be described by reference to matters including (but not limited to) any of the following, or any combination of any of the following:

                     (a)  the nature of work performed by employees;

                     (b)  the skills or qualifications of employees;

                     (c)  the level of responsibility or experience of employees;

                     (d)  whether employees are junior employees, or a particular class of junior employees;

                     (e)  whether employees are employees with a disability, or are a particular class of employees with a disability;

                      (f)  whether employees are employees to whom training arrangements, or are a particular class of employees to whom training arrangements, apply.

181  Meaning of rate provisions

             (1)  For the purposes of this Division, rate provisions, of a pre‑reform wage instrument or an APCS, are provisions of the instrument or APCS that determine a basic periodic rate of pay, or basic piece rates of pay, payable to an employee, or an employee of a particular classification.

             (2)  The means by which such provisions may determine a basic periodic rate of pay, or a basic piece rate of pay, include the following, or any combination of any of the following:

                     (a)  direct specification of a rate;

                     (b)  identification of a rate by reference to other provisions (whether or not of the same instrument or APCS);

                     (c)  direct specification, or identification by reference to other provisions (whether or not of the same instrument or APCS), of a method for calculating a rate.

             (3)  Subject to the regulations, a method referred to in subsection (2) may provide for a person or body to determine a rate in a particular way. For the purposes of this Division, a rate determined by the person or body in that way is taken to be a rate determined by the provisions that specify or identify the method.

Subdivision BGuarantee of basic rates of pay

182  The guarantee

Guarantee of APCS basic periodic rates of pay

             (1)  If:

                     (a)  the employment of an employee is covered by an APCS; and

                     (b)  the employee is not an APCS piece rate employee;

the employee must be paid a basic periodic rate of pay for each of the employee’s guaranteed hours (pro‑rated for part hours) that is at least equal to the basic periodic rate of pay (the guaranteed basic periodic rate of pay) that is payable to the employee under the APCS.

Note:          For what are the employee’s guaranteed hours, see section 183.

Guarantee of APCS piece rates of pay

             (2)  If:

                     (a)  the employment of an employee is covered by an APCS; and

                     (b)  the employee is an APCS piece rate employee;

the employee must be paid basic piece rates of pay for his or her work that are at least equal to the basic piece rates of pay (the guaranteed basic piece rates of pay) that are payable to the employee under the APCS.

Guarantee of standard FMW

             (3)  If:

                     (a)  the employment of an employee is not covered by an APCS; and

                     (b)  the employee is not a junior employee, an employee with a disability, or an employee to whom a training arrangement applies;

the employee must be paid a basic periodic rate of pay for each of the employee’s guaranteed hours (pro‑rated for part hours) that is at least equal to the standard FMW (the guaranteed basic periodic rate of pay).

Note:          For what are the employee’s guaranteed hours, see section 183.

Guarantee of special FMW

             (4)  If:

                     (a)  the employment of an employee is not covered by an APCS; and

                     (b)  there is a special FMW for the employee;

the employee must be paid a basic periodic rate of pay for each of the employee’s guaranteed hours (pro‑rated for part hours) that is at least equal to that special FMW (the guaranteed basic periodic rate of pay).

Note:          For what are the employee’s guaranteed hours, see section 183.

183  An employee’s guaranteed hours for the purpose of section 182

Employees employed to work a specified number of hours

             (1)  For the purposes of section 182, if an employee is employed to work a specified number of hours per week, the guaranteed hours for the employee, for each week, are to be worked out as follows:

                     (a)  start with that specified number of hours (subject to subsection (4));

                     (b)  deduct all of the following:

                              (i)  any hours in the week when the employee is absent from work on deductible authorised leave (as defined in subsection (6));

                             (ii)  any hours in the week in relation to which the employer is prohibited by section 507 from making a payment to the employee;

                            (iii)  any other hours of unauthorised absence from work by the employee in the week;

                            (iv)  any hours in the week when the employee is stood down (but only if the stand down is an authorised stand down);

                     (c)  if, during the week, the employee works, and is required or requested to work, additional hours that are, under the terms and conditions of the employee’s employment, not counted towards the specified number of hours—add on those additional hours.

Note:          The actual hours worked from week to week by an employee who is employed to work a specified number of hours per week may vary, due to averaging as mentioned in section 226 or to some other kind of flexible working hours scheme that applies to the employee’s employment.

             (2)  If an employee is employed on a full‑time basis, but the terms and conditions of the employee’s employment do not determine the number of hours in a period that is to constitute employment on a full‑time basis for the employee, the employee is, for the purpose of subsection (1), taken to be employed to work 38 hours per week.

             (3)  If an employee is employed to work a specified number (the number of non‑week specified hours) of hours per period (the non‑week period), but that period is not a week (for example, it is a fortnight), then, for the purpose of subsection (1), the employee is taken to be employed to work the number of hours per week determined, subject to the regulations (if any), in accordance with the formula:

             (4)  If:

                     (a)  subsection (1) applies to the employment of an employee to whom a training arrangement applies; and

                     (b)  an APCS includes provisions that determine, in relation to the employee’s employment, that hours attending off‑the‑job training (including hours attending an educational institution) are hours for which a basic periodic rate of pay is payable; and

                     (c)  the hours that would otherwise be the specified number of hours referred to in subsection (1) for the employee for a week do not include all the hours (the paid training hours) in the week that the APCS so determines are hours for which a basic periodic rate of pay is payable;

subsection (1) applies as if the specified number of hours were increased to such number of hours as includes all the paid training hours.

Employees not employed to work a specified number of hours

             (5)  For the purpose of section 182, if subsection (1) of this section does not apply to the employment of an employee, the guaranteed hours for the employee are the hours that the employee both is required or requested to work, and does work, for the employer, less any period in relation to which the employer is prohibited by section 507 from making a payment to the employee.

Definitions

             (6)  In this section:

deductible authorised leave means leave, or an absence, whether paid or unpaid, that is authorised:

                     (a)  by an employee’s employer; or

                     (b)  by or under a term or condition of an employee’s employment; or

                     (c)  by or under a law, or an instrument in force under a law, of the Commonwealth, a State or a Territory;

but not including any leave or absence:

                     (d)  that is on a public holiday and that is so authorised because the day is a public holiday; or

                     (e)  any leave or absence that is authorised in order for the employee to attend paid training hours (within the meaning of paragraph (4)(c)) of off‑the‑job training.

hour includes a part of an hour.

Note:          An employee’s guaranteed hours may therefore be a number of hours and part of an hour.

public holiday means:

                     (a)  a day declared by or under a law of a State or Territory to be observed generally within the State or Territory, or a region of that State or Territory, as a public holiday by people who work in that State, Territory or region, other than:

                              (i)  a union picnic day; or

                             (ii)  a day, or kind of day, that is excluded by regulations made for the purposes of this paragraph from counting as a public holiday; or

                     (b)  a day that, under (or in accordance with a procedure under) a law of a State or Territory, or an award or workplace agreement, is substituted for a day referred to in paragraph (a).

184  Modified operation of section 182 to continue effect of Supported Wage System for certain employees with a disability

             (1)  This section applies to the employment of an employee with a disability if:

                     (a)  subsection 182(1) applies (disregarding this section) to the employment of the employee; and

                     (b)  the APCS that covers the employee’s employment does not determine the basic periodic rate of pay for the employee as a rate that is specific to employees with disabilities; and

                     (c)  the employee is eligible for the Supported Wage System; and

                     (d)  the employee’s employment is covered by a workplace agreement; and

                     (e)  the workplace agreement provides for the payment of a basic periodic rate of pay to the employee at a rate that is not less than the rate (the SWS‑compliant rate of pay) set in accordance with the Supported Wage System.

Note:          The Supported Wage System was endorsed by the Commission in the Full Bench decision dated 10 October 1994 (print L5723).

             (2)  If this section applies to the employment of the employee, subsection 182(1) has effect as if the guaranteed basic periodic rate of pay under that subsection for the employment of the employee were instead a rate equal to the SWS‑compliant rate of pay.

Subdivision CGuarantee of casual loadings

185  The guarantee

             (1)  This section applies to a casual employee for whom, under section 182, there is a guaranteed basic periodic rate of pay, other than a casual employee in relation to whom the following paragraphs are satisfied:

                     (a)  subsection 182(1) applies to the employee;

                     (b)  the APCS that covers the employment of the employee does not contain casual loading provisions under which a casual loading is payable to the employee;

                     (c)  the employee’s employment is not covered by a workplace agreement.

             (2)  The casual employee must be paid, in addition to his or her actual basic periodic rate of pay, a casual loading that is at least equal to the guaranteed casual loading percentage of that actual basic periodic rate of pay.

Note:          The employee’s actual basic periodic rate of pay should at least equal the guaranteed basic periodic rate of pay under section 182.

             (3)  The guaranteed casual loading percentage is as set out in the following table:

 

Item

In this situation …

the guaranteed casual loading percentage is …

1

if:

(a) subsection 182(1) applies to the employment of the employee; and

(b) the employee’s employment has never been subject to a workplace agreement;

the percentage that is the casual loading payable to the employee under casual loading provisions of the APCS referred to in subsection 182(1).

2

if:

(a) subsection 182(1) applies to the employment of the employee; and

(b) the employee’s employment has been, but is no longer, subject to a workplace agreement;

the higher of:

(a) the percentage that is the casual loading payable to the employee under casual loading provisions of the APCS referred to in subsection 182(1); and

(b) the default casual loading percentage.

3

if:

(a) subsection 182(1) applies to the employment of the employee; and

(b) the employee’s employment is covered by a workplace agreement;

the default casual loading percentage.

4

if subsection 182(3) or (4) applies to the employment of the employee

the default casual loading percentage.

186  Default casual loading percentage

                   The default casual loading percentage is 20%.

Subdivision DGuarantee of frequency of payment

189  The guarantee

APCS applies and contains frequency of payment provisions

             (1)  If:

                     (a)  the employment of an employee is covered by an APCS; and

                     (b)  the APCS contains frequency of payment provisions that apply in relation to the employee’s employment;

then:

                     (c)  if a workplace agreement that covers the employment of the employee contains frequency of payment provisions:

                              (i)  that apply in relation to the employee’s employment; and

                             (ii)  that provide for payments in respect of periods of one month or less;

                            the employer must comply with those provisions in relation to the employee; or

                     (d)  if paragraph (c) does not apply, and the employee’s contract of employment contains frequency of payment provisions:

                              (i)  that apply in relation to the employee’s employment; and

                             (ii)  that provide for payments in respect of periods of one month or less;

                            the employer must comply with those provisions in relation to the employee; or

                     (e)  if neither paragraph (c) nor (d) applies—the employer must comply with the frequency of payment provisions of the APCS in relation to the employee.

APCS applies but does not contain frequency of payment provisions

             (2)  If:

                     (a)  the employment of an employee is covered by an APCS; but

                     (b)  the APCS does not contain frequency of payment provisions that apply in relation to the employee’s employment;

then:

                     (c)  if a workplace agreement that covers the employment of the employee contains frequency of payment provisions that apply in relation to the employee’s employment—the employer must comply with those provisions in relation to the employee; or

                     (d)  if paragraph (c) does not apply, and the employee’s contract of employment contains frequency of payment provisions that apply in relation to the employee’s employment—the employer must comply with those provisions in relation to the employee; or

                     (e)  if neither paragraph (c) nor (d) applies—the employer must pay the employee on the basis of fortnightly payments in arrears.

Other situations

             (3)  If the employment of an employee is not covered by an APCS, then:

                     (a)  if a workplace agreement that covers the employment of the employee contains frequency of payment provisions that apply in relation to the employee’s employment—the employer must comply with those provisions in relation to the employee; or

                     (b)  if paragraph (a) does not apply, and the employee’s contract of employment contains frequency of payment provisions that apply in relation to the employee’s employment—the employer must comply with those provisions in relation to the employee; or

                     (c)  if neither paragraph (a) nor (b) applies—the employer must pay the employee on the basis of fortnightly payments in arrears.

Subdivision EGuarantee against reductions below pre‑reform commencement rates

190  The guarantee where only basic periodic rates of pay are involved

             (1)  This section applies if:

                     (a)  the AFPC proposes to exercise any of the following powers (subject to subsection (4)):

                              (i)  adjusting the standard FMW;

                             (ii)  adjusting a preserved APCS;

                            (iii)  adjusting a new APCS; and

                     (b)  immediately after the exercise of the power takes effect, there will, under section 182, be a guaranteed basic periodic rate of pay (the resulting guaranteed basic periodic rate) for a particular employee affected by the exercise of the power; and

                     (c)  immediately after the reform commencement (and after any relevant adjustments mentioned in sections 209 to 212 took effect), there would, under section 182, have been a guaranteed basic periodic rate of pay (the commencement guaranteed basic periodic rate) for the employee if the employee had at that time been in his or her current circumstances of employment.

             (2)  The AFPC must ensure that the result of the exercise of the power, so far as it affects the employee, is such that the resulting guaranteed basic periodic rate of pay for the employee will not be less than the commencement guaranteed basic periodic rate of pay for the employee.

             (3)  In applying this section in relation to a particular exercise of a power by the AFPC, the effect of any other exercise of a power by the AFPC that takes effect at the same time must also be taken into account.

             (4)  This section does not limit the AFPC’s power to adjust APCSs made for the purpose of section 220 before the repeal of that section by the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008.

191  The guarantee where basic piece rates of pay are involved

             (1)  This section applies if:

                     (a)  the AFPC proposes to exercise any of the following powers (subject to subsection (4)):

                              (i)  adjusting the standard FMW;

                             (ii)  adjusting a preserved APCS;

                            (iii)  adjusting a new APCS; and

                     (b)  either or both of the following subparagraphs apply in relation to a particular employee who will be affected by the exercise of the power:

                              (i)  immediately after the exercise of the power takes effect, there will, under section 182, be guaranteed basic piece rates of pay for the employee;

                             (ii)  immediately after the reform commencement (and after any relevant adjustments mentioned in sections 209 to 212 took effect), there would, under section 182, have been guaranteed basic piece rates of pay for the employee if the employee had at that time been in his or her current circumstances of employment.

             (2)  The AFPC must exercise the power in a way that it considers will not result in an employee of average capacity, after the exercise of the power takes effect, being entitled to less basic pay per week than he or she would have been entitled to because of this Division immediately after the reform commencement if the employee had at that time been in his or her current circumstances of employment.

             (3)  In applying this section in relation to a particular exercise of a power by the AFPC, the effect of any other exercise of a power by the AFPC that takes effect at the same time must also be taken into account.

             (4)  This section does not limit the AFPC’s power to adjust APCSs made for the purpose of section 220 before the repeal of that section by the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008.

192  The guarantee for casual loadings that apply to basic periodic rates of pay

             (1)  This section applies in relation to the exercise by the AFPC of any of the following powers:

                     (a)  adjusting a preserved APCS;

                     (b)  adjusting a new APCS.

             (2)  The AFPC must ensure that the result of the exercise of the power, so far as it affects any particular employee to whom this Division applies (other than an employee who will, after the exercise of the power, be an APCS piece rate employee), is such that the resulting guaranteed casual loading percentage for the employee will not be less than the commencement guaranteed casual loading percentage for the employee.

             (3)  For the purposes of subsection (2):

                     (a)  the resulting guaranteed casual loading percentage for the employee is the guaranteed casual loading percentage referred to in section 185 for the employee, as it will be immediately after the exercise of the power takes effect; and

                     (b)  subject to subsection (4), the commencement guaranteed casual loading percentage for the employee is the percentage that, immediately after the reform commencement (and after any relevant adjustments mentioned in sections 209 to 212 took effect), would have been the guaranteed casual loading percentage referred to in section 185 for the employee if the employee had, at that time, been in his or her current circumstances of employment.

             (4)  If:

                     (a)  the employee is a casual employee; and

                     (b)  the resulting guaranteed casual loading percentage is the default casual loading percentage because of item 3 of the table in subsection 185(3);

the commencement guaranteed casual loading percentage for the employee is taken to be the default casual loading percentage, as it was immediately after the reform commencement.

             (5)  In applying this section in relation to a particular exercise of a power by the AFPC, the effect of any other exercise of a power by the AFPC that takes effect at the same time must also be taken into account.

Subdivision FThe guarantee against reductions below Federal Minimum Wages (FMWs)

193  The guarantee

             (1)  When exercising its power to adjust an APCS, the AFPC must ensure that the rate provisions in the APCS are such that the resulting APCS basic periodic rate of pay for each employee:

                     (a)  whose employment will be covered by the APCS immediately after the exercise of the power; and

                     (b)  for whom there will be an FMW immediately after the exercise of the power; and

                     (c)  who will not be an APCS piece rate employee immediately after the exercise of the power;

is not less than that FMW.

Note 1:       This section does not apply to rates determined by rate provisions as initially included in a preserved APCS from a pre‑reform wage instrument as mentioned paragraph 208(1)(a). However, this section does apply to any subsequent adjustment of those rate provisions.

Note 2:       See also section 207 (deeming APCS rates to at least equal FMW rates after first exercise of powers under this Division by the AFPC).

             (2)  For the purposes of subsection (1), the resulting APCS basic periodic rate of pay for an employee is the basic periodic rate of pay that will be payable to the employee under the APCS immediately after the exercise of the power by the AFPC takes effect.

             (4)  In applying this section in relation to a particular exercise of a power by the AFPC, the effect of any other exercise of a power by the AFPC that takes effect at the same time must also be taken into account.

Subdivision GFederal Minimum Wages (FMWs)

194  When is there an FMW for an employee?

             (1)  There is an FMW for an employee if the employee is not:

                     (a)  a junior employee; or

                     (b)  an employee with a disability; or

                     (c)  an employee to whom a training arrangement applies; or

                     (d)  an APCS piece rate employee.

The FMW for the employee is the standard FMW.

             (3)  There is an FMW for an employee with a disability (other than an APCS piece rate employee) if the AFPC has determined a special FMW that applies to all employees with a disability, or to a class of employees with a disability that includes the employee. The FMW for the employee is that special FMW.

195  Standard FMW

             (1)  The standard FMW is $13.74 per hour, subject to the power of the AFPC to adjust the standard FMW.

             (2)  Any adjustment of the standard FMW must be such that the adjusted rate is still expressed as a monetary amount per hour.

196  Adjustment of standard FMW

             (1)  The AFPC may adjust the standard FMW.

             (2)  The power to adjust the standard FMW is subject to:

                     (a)  section 176; and

                     (b)  section 190; and

                     (c)  section 191; and

                     (d)  subsection 195(2); and

                     (e)  section 222.

199  How a special FMW is to be expressed

             (1)  A special FMW is to be expressed in a way that produces a monetary amount per hour.

             (2)  The means by which a special FMW may be expressed to produce a monetary amount per hour include:

                     (a)  specification of a monetary amount per hour; or

                     (b)  specification of a method for calculating a monetary amount per hour.

             (3)  Any adjustment of a special FMW must be such that the adjusted special FMW still complies with this section.

200  Adjustment of a special FMW

             (1)  The AFPC may adjust a special FMW.

             (2)  The power to adjust a special FMW is subject to:

                     (a)  section 176; and

                     (b)  section 199; and

                     (c)  section 222.

Subdivision HAustralian Pay and Classification Scales (APCSs): general provisions

201  What is an APCS?

                   An APCS is a set of provisions relating to pay and loadings for particular employees that complies with this Subdivision.

202  What must or may be in an APCS?

             (1)  An APCS must contain:

                     (a)  either or both of the following:

                              (i)  rate provisions determining basic periodic rates of pay for employees whose employment is covered by the APCS;

                             (ii)  rate provisions determining basic piece rates of pay for employees whose employment is covered by the APCS; and

                     (b)  if the rate provisions determine different rates of pay for employees of different classifications—provisions describing those classifications; and

                     (c)  coverage provisions.

             (2)  An APCS may also contain:

                     (a)  casual loading provisions determining casual loadings for employees whose employment is covered by the APCS and for whom there are not basic piece rates of pay; and

                     (b)  if the casual loading provisions determine different casual loadings for employees of different classifications—provisions describing those classifications; and

                     (c)  provisions that determine, in relation to employees to whom training arrangements apply, whether hours attending off‑the‑job training (including hours attending an educational institution) are hours for which a basic periodic rate of pay is payable; and

                     (d)  frequency of payment provisions; and

                     (e)  other incidental provisions.

             (3)  Subject to subsection 208(4), rate provisions or casual loading provisions in an APCS must not include provisions under which a rate or casual loading provided for by the APCS will or may be increased by operation of the provisions and without anyone having to take any other action.

Note:          This does not prevent an APCS, or an adjustment of an APCS, from being expressed to take effect at a future date. However, it does prevent an APCS from containing provisions under which (for example):

(a)           there will be one or more specified increases of a rate or loading at a specified future time or times; or

(b)           rates of pay or loading are indexed periodically.

             (4)  The AFPC must not adjust an APCS so that it includes provisions that:

                     (a)  determine whether an employer who acquires a business (whether by transfer or in some other way) is covered by the APCS; or

                     (b)  give a person or body a power to make a decision that affects whether a person is covered by the APCS; or

                     (c)  give the Commission a direct or indirect role in determining a rate of pay or loading.

Note:          A preserved APCS may contain provisions referred to in subsection (4) that were contained in the pre‑reform wage instrument from which the APCS is derived, but the effect of those provisions is limited by sections 204 and 209.

             (5)  An APCS must not contain any provisions that purport to limit the duration of the APCS.

             (6)  Subject to the regulations, an APCS must not contain any other provisions.

203  How pay rates and loadings are to be expressed in an APCS

             (1)  Rate provisions in an APCS must be such that basic periodic rates of pay determined by the provisions are expressed as a monetary amount per hour.

             (2)  Rate provisions in an APCS must be such that basic piece rates of pay determined by the provisions are expressed as a monetary amount.

             (3)  Casual loading provisions in an APCS must be such that casual loadings determined by the provisions are expressed as percentages to be applied to basic periodic rates of pay.

             (4)  The AFPC must ensure these rules are complied with in exercising its powers to adjust an APCS.

204  When is employment covered by an APCS?

             (1)  The question whether the employment of a particular employee is covered by a particular APCS is to be determined by reference to the coverage provisions of the APCS.

             (2)  If coverage provisions of a preserved APCS include provisions that determine whether an employer who acquires a business (whether by transfer or in some other way) is covered by the APCS, those provisions only have effect, for the purpose of determining whether the employment of a particular employee is covered by the APCS, in relation to acquisitions of businesses that occurred before the reform commencement.

             (3)  If coverage provisions of a preserved APCS include provisions that give a person or body a power to make a decision that affects whether a person is covered by the APCS, those provisions only have effect, for the purpose of determining whether the employment of a particular employee is covered by the APCS, in relation to decisions made by the person or body before the reform commencement.

205  What if 2 or more APCSs would otherwise cover an employee?

             (1)  If, but for this section, 2 or more APCSs would cover the employment of the same employee, the employment of the employee is taken to be covered only by the APCS that prevails.

             (2)  Apply the following rules to work out which APCS prevails:

                     (a)  the preserved APCS derived from the pre‑reform federal wage instrument referred to in paragraph (b) of the definition of pre‑reform federal wage instrument in section 178 (as that preserved APCS is adjusted from time to time) prevails over any other APCS;

                     (b)  subject to paragraph (a), a new APCS determined in accordance with Subdivision M of Division 2 of Part 7 of this Act before the repeal of that Subdivision by the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 (as that APCS is adjusted from time to time) prevails over any other APCS;

                     (c)  subject to paragraphs (a) and (b):

                              (i)  a new APCS prevails over a preserved APCS; and

                             (ii)  a preserved APCS that is derived from a pre‑reform federal wage instrument prevails over a preserved APCS that is derived from a pre‑reform non‑federal wage instrument;

                     (d)  subject to paragraphs (a), (b) and (c):

                              (i)  as between 2 or more APCSs that are made or adjusted on different days, the APCS that is made or adjusted on the more recent day prevails; and

                             (ii)  as between 2 or more APCSs that are made or adjusted on the same day, the APCS that is more generous to the employee prevails.

             (3)  For the purpose of this section, all preserved APCSs are taken to have been made on the day on which the reform commencement occurs.

207  Deeming APCS rates to at least equal FMW rates after first exercise of AFPC’s powers takes effect

             (1)  This section applies at all times after the first exercise of powers by the AFPC under this Division takes effect. If the first exercise of powers involves the exercise of powers taking effect at different times, this section applies at all times after the earliest of those times.

             (2)  Subject to subsection (3), if:

                     (a)  there is an FMW for an employee at a particular time when this section applies; and

                     (b)  an APCS that covers the employment of the employee determines a basic periodic rate of pay for the employee at that time that is less than that FMW;

the basic periodic rate of pay determined by the APCS for the employee at that time is taken to be equal to the rate that is the FMW for the employee at that time.

Note:          This subsection ensures that the employee will, under subsection 182(1), be guaranteed a rate that equals the FMW rate, rather than the lower APCS rate.

Subdivision IAustralian Pay and Classification Scales: preserved APCSs

208  Deriving preserved APCSs from pre‑reform wage instruments

             (1)  If a pre‑reform wage instrument contains rate provisions determining one or more basic periodic rates of pay, or basic piece rates of pay, payable to employees, then, from the reform commencement, there is taken to be a preserved APCS that includes (subject to this Subdivision):

                     (a)  those rate provisions; and

                     (b)  if those rate provisions determine different basic periodic rates of pay, or different basic piece rates of pay, for employees of different classifications—the provisions of the instrument that describe those classifications; and

                     (c)  any casual loading provisions of the instrument that determine casual loadings payable to employees, other than employees for whom the instrument provides basic piece rates of pay; and

                     (d)  if the casual loading provisions determine different casual loadings for employees of different classifications—the provisions of the instrument that describe those classifications; and

                     (e)  any provisions of the instrument that determine, in relation to employees to whom training arrangements apply, whether hours attending off‑the‑job training (including hours attending an educational institution) count as hours for which a basic periodic rate of pay is payable; and

                      (f)  any frequency of payment provisions for the instrument; and

                     (g)  the coverage provisions for the instrument.

             (2)  The preserved APCS is derived from the pre‑reform wage instrument.

             (3)  Subject to subsection (4) and the regulations, the preserved APCS is taken not to include any provision of the pre‑reform wage instrument which, after the adjustments referred to in sections 209 to 212 take effect, will not comply with the requirements of sections 202 and 203.

Note:          For when regulations made for the purpose of subsection (3) may be expressed to take effect, see section 213.

             (4)  If:

                     (a)  the rate provisions referred to in paragraph (1)(a) include pay increases for particular employees, determined before the reform commencement, that are expressed to take effect at a time or times after the reform commencement; and

                     (b)  those increases were determined by the Commission, or by a State industrial authority, wholly or partly on the ground of work value change or pay equity;

then (despite subsection 202(3)), the preserved APCS is taken to include provisions under which those increases will take effect for those employees at that time or those times.

             (5)  The adjustments referred to in sections 209 to 212 are, subject to the regulations, to be made in the following order:

                     (a)  adjustments referred to in section 209;

                     (b)  adjustments referred to in section 210;

                     (c)  adjustments referred to in section 211;

                     (d)  adjustments referred to in subsection 212(1).

Note:          For when regulations made for the purpose of subsection (5) may be expressed to take effect, see section 213.

209  Notional adjustment: rates and loadings determined as for reform comparison day

Rate provisions

             (1)  Subject to subsections (2) and (3), if rate provisions included in a preserved APCS as mentioned in section 208 would, apart from this subsection, determine a basic periodic rate of pay otherwise than by direct specification of the monetary amount of the rate, then the APCS is taken to be adjusted as necessary immediately after the reform commencement so that those rate provisions instead directly specify, as that rate of pay, the rate as determined by the provisions for the reform comparison day.

             (2)  Subsection (1) does not apply to the rate provisions included in the preserved APCS derived from the pre‑reform federal wage instrument referred to in paragraph (b) of the definition of pre‑reform federal wage instrument in section 178.

             (3)  If the rate provisions included in a preserved APCS as mentioned in section 208 determine a basic periodic rate of pay by (or by referring to) a pro‑rata disability pay method, subsection (1) applies to any other rate of pay that the method refers to, but does not otherwise apply to the method.

             (4)  If the rate provisions included in a preserved APCS as mentioned in section 208 determine a basic piece rate of pay by (or by referring to) a method, subsection (1) does not apply to the rate provisions that determine that rate.

             (5)  The regulations may provide for other situations in which subsection (1) is not to apply to rate provisions, or is to apply with specified modifications.

Note:          For when regulations made for the purpose of subsection (5) may be expressed to take effect, see section 213.

Casual loading provisions

             (6)  If casual loading provisions included in a preserved APCS as mentioned in section 208 would, apart from this subsection, determine a loading otherwise than by direct specification of the loading, then the APCS is taken to be adjusted as necessary immediately after the reform commencement so that those loading provisions instead directly specify, as that loading, the loading as determined by the provisions for the reform comparison day.

210  Notional adjustment: deducing basic periodic rate of pay and casual loading from composite rate

                   If:

                     (a)  a particular rate of pay determined by rate provisions included in a preserved APCS as mentioned in section 208 would, apart from this subsection, be a basic periodic rate of pay for a casual employee; and

                     (b)  the rate of pay is, by an amount (the inbuilt casual loading amount), higher than it would have been if the employee had not been a casual employee; and

                     (c)  apart from this subsection, the preserved APCS does not contain casual loading provisions that determine a casual loading for the employee;

the APCS is taken to be adjusted as necessary immediately after the reform commencement so that:

                     (d)  the rate provisions instead determine a basic periodic rate of pay for the employee that equals the rate referred to in paragraph (a), reduced by the inbuilt casual loading amount; and

                     (e)  the preserved APCS contains casual loading provisions that determine a casual loading for the employee that equals the inbuilt casual loading amount.

211  Notional adjustment: how basic periodic rates and loadings are expressed

             (1)  If a particular basic periodic rate of pay determined by rate provisions included in a preserved APCS as mentioned in section 208 would, apart from this subsection, be expressed as a monetary amount for a period other than an hour (for example, it would be expressed as a rate for a week), the rate provisions are taken to be adjusted as necessary immediately after the reform commencement so that they produce the result that the rate is expressed as the equivalent monetary hourly rate.

             (2)  If a particular casual loading determined by casual loading provisions included in a preserved APCS as mentioned in section 208 would, apart from this subsection, be expressed as an amount of money that is to be added to a basic periodic rate of pay, the loading provisions are taken to be adjusted as necessary immediately after the reform commencement so that they produce the result that the loading is expressed as the equivalent percentage of the basic periodic rate of pay.

212  Regulations dealing with notional adjustments

             (1)  The regulations may provide for other adjustments (including by determining methods for working out adjustments) that are to be taken to be made to a preserved APCS.

             (2)  The regulations may determine methods for working out the adjustments mentioned in any of sections 209 to 211, or may otherwise clarify the operation of any aspect of those sections. Those sections have effect accordingly.

Note:          For when regulations made for the purpose of this section may be expressed to take effect, see section 213.

213  Certain regulations relating to preserved APCSs may take effect before registration

             (1)  This section applies to regulations made for the purpose of any of the following provisions:

                     (a)  paragraph (c) or (d) of the definition of pre‑reform federal wage instrument in section 178;

                     (b)  paragraph (c) or (d) of the definition of pre‑reform State wage instrument in section 178;

                     (c)  paragraph (b) or (c) of the definition of pre‑reform Territory wage instrument in section 178;

                     (d)  subsection 208(3) or (5);

                     (e)  subsection 209(5);

                      (f)  section 212.

             (2)  Despite subsection 12(2) of the Legislative Instruments Act 2003, regulations to which this section applies may be expressed to take effect from a date before the regulations are registered under that Act.

             (3)  If regulations to which this section applies take effect before their registration under the Legislative Instruments Act 2003, those regulations are not to be taken into account in determining the effect of sections 182, 185, 190, 191 and 192 in relation to periods of employment before the registration of those regulations.

Subdivision KAustralian Pay and Classification Scales: duration and adjustment of APCSs (preserved or new)

215  Duration of APCSs

                   An APCS continues to have effect indefinitely (subject to adjustment by the AFPC under this Subdivision, and to the rules in section 205 about when one APCS prevails over another).

216  Adjustment of APCSs

             (1)  The AFPC may adjust an APCS.

             (2)  The power to adjust an APCS is subject to:

                     (a)  section 176; and

                     (b)  section 190; and

                     (c)  section 191; and

                     (d)  section 192; and

                     (e)  section 193; and

                      (f)  section 202; and

                     (g)  section 203; and

                     (h)  Subdivision L; and

                      (i)  section 222.

Subdivision LAdjustments to incorporate 2005 Safety Net Review etc.

218  Adjustments to incorporate 2005 Safety Net Review

             (1)  This section applies in relation to a preserved APCS if:

                     (a)  the APCS is derived from a pre‑reform federal wage instrument referred to in paragraph (a) of the definition of pre‑reform federal wage instrument in section 178; and

                     (b)  either:

                              (i)  in accordance with the Commission’s wage fixing principles that applied at that time, the Commission (before the reform commencement) adjusted the instrument in accordance with the Commission’s 2004 Safety Net Review decision; or

                             (ii)  the instrument took effect after the Commission’s 2004 Safety Net Review decision; and

                     (c)  the Commission did not, before the reform commencement, adjust the instrument in accordance with the Commission’s 2005 Safety Net Review decision.

             (2)  The AFPC must adjust the rate provisions of the preserved APCS to increase rates in accordance with the Commission’s 2005 Safety Net Review decision (if applicable), except to the extent that the AFPC is satisfied it is not appropriate to do so because of the effect of subsection 208(4).

             (3)  The adjustment must be made as part of the first exercise of the powers of the AFPC under this Division.

             (4)  After the adjustment has been made, section 190 has effect in relation to an employee as if the adjustment had been made to the pre‑reform federal wage instrument immediately before the reform commencement.

Note:          This subsection ensures that the post‑adjustment rate is the rate against which compliance with the guarantee in section 190 is measured.

219  Regulations may require adjustments to incorporate other decisions

             (1)  The regulations may require the AFPC to adjust rate provisions in a class of preserved APCSs that are derived from non‑federal pre‑reform wage instruments to increase rates to take account of decisions that were made before the reform commencement but that were not given effect to in those instruments before the reform commencement.

             (2)  Regulations made for the purposes of subsection (1) may also modify how section 190 applies in relation to any APCSs that are so adjusted.

Subdivision MSpecial provisions relating to APCSs for employees with a disability

219A  Coverage of special APCSs for employees with a disability

             (1)  This section applies in relation to an APCS (the special APCS) that was determined in accordance with section 220 of this Act before the repeal of that section by the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008.

             (2)  The special APCS is taken not to cover the employment of a particular employee if:

                     (a)  there is another APCS that covers the employment of the employee (disregarding the effect that paragraph 205(2)(b) would otherwise have because of the special APCS); and

                     (b)  that other APCS determines a basic periodic rate of pay specifically for a particular class of employees with a disability; and

                     (c)  the employee’s employment is covered by that other APCS because the employee is a member of that class; and

                     (d)  that class is the same as, or is a subclass of, the employees whose employment would otherwise be covered by the special APCS.

             (3)  Without limiting the power of the AFPC to adjust APCSs under section 216, the AFPC may adjust the special APCS under that section.

Subdivision NMiscellaneous

222  Anti‑discrimination considerations

             (1)  Without limiting section 176, in exercising any of its powers under this Division, the AFPC is to:

                     (a)  apply the principle that men and women should receive equal remuneration for work of equal value; and

                     (b)  have regard to the need to provide pro‑rata disability pay methods for employees with disabilities; and

                     (c)  take account of the principles embodied in the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992 and the Age Discrimination Act 2004 relating to discrimination in relation to employment; and

                     (d)  take account of the principles embodied in the Family Responsibilities Convention, in particular those relating to:

                              (i)  preventing discrimination against workers who have family responsibilities; or

                             (ii)  helping workers to reconcile their employment and family responsibilities; and

                     (e)  ensure that its decisions do not contain provisions that discriminate because of, or for reasons including, race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

             (2)  For the purposes of the Acts referred to in paragraph (1)(c), and of paragraph (1)(e), the AFPC does not discriminate against an employee or employees by (in accordance with this Division):

                     (a)  adjusting rate provisions in an APCS that determine a basic periodic rate of pay for:

                              (i)  all junior employees, or a class of junior employees; or

                             (ii)  all employees with a disability, or a class of employees with a disability; or

                            (iii)  all employees to whom training arrangements apply, or a class of employees to whom training arrangements apply; or

                     (b)  adjusting a special FMW for all employees with a disability, or a class of employees with a disability.


 

Division 3Maximum ordinary hours of work

Subdivision APreliminary

223  Employees to whom Division applies

                   This Division applies to all employees.

224  Definitions

                   In this Division:

authorised leave means leave, or an absence, whether paid or unpaid, that is authorised:

                     (a)  by an employee’s employer; or

                     (b)  by or under a term or condition of an employee’s employment; or

                     (c)  by or under a law, or an instrument in force under a law, of the Commonwealth, a State or a Territory.

employee means an employee to whom this Division applies under section 223.

225  Agreement between employees and employers

Via a workplace agreement

             (1)  For the purposes of this Division, an employee and an employer are taken to agree about a particular matter in a particular way if a provision of a workplace agreement binding the employee and the employer specifies that the matter is to be dealt with in that way.

Via an award

             (2)  For the purposes of this Division, an employee and an employer are taken to agree about a particular matter in a particular way if a term of an award that binds the employee and the employer specifies that the matter is to be dealt with in that way.

Via other means

             (3)  To avoid doubt, nothing in this section prevents employees and employers agreeing about matters by other means.

Subdivision BGuarantee of maximum ordinary hours of work

226  The guarantee

             (1)  An employee must not be required or requested by an employer to work more than:

                     (a)  either:

                              (i)  38 hours per week; or

                             (ii)  subject to subsection (3), if the employee and the employer agree in writing that the employee’s hours of work are to be averaged over a specified averaging period that is no longer than 12 months—an average of 38 hours per week over that averaging period; and

                     (b)  reasonable additional hours.

Note 1:       An employee and an employer may agree that the employee is to work less than 38 hours per week, or less than an average of 38 hours per week over the employee’s averaging period.

Note 2:       A requirement for an employee to work a particular number of hours may come, for example, from an award or a workplace agreement.

          (1A)  An employer only contravenes subsection (1) if the employer requests or requires an employee to work more than the hours mentioned in subsection (1), and the employee works those hours.

Calculating the number of hours worked

             (2)  For the purposes of paragraph (1)(a), in calculating the number of hours that an employee has worked in a particular week, or the average number of hours that an employee has worked per week over an averaging period, the hours worked by the employee are taken to include any hours of authorised leave taken by the employee during the week, or during that period.

Start of averaging period

             (3)  For the purpose of subparagraph (1)(a)(ii), if an employee starts to work for an employer after the start of a particular averaging period that applies to the employee, that averaging period is taken, in relation to the employee, not to include the period before the employee started to work for the employer.

Reasonable additional hours

             (4)  For the purposes of paragraph (1)(b), in determining whether additional hours that an employee is required or requested by an employer to work are reasonable additional hours, all relevant factors must be taken into account. Those factors may include, but are not limited to, the following:

                     (a)  any risk to the employee’s health and safety that might reasonably be expected to arise if the employee worked the additional hours;

                     (b)  the employee’s personal circumstances (including family responsibilities);

                     (c)  the operational requirements of the workplace, or enterprise, in relation to which the employee is required or requested to work the additional hours;

                     (d)  any notice given by the employer of the requirement or request that the employee work the additional hours;

                     (e)  any notice given by the employee of the employee’s intention to refuse to work the additional hours;

                      (f)  whether any of the additional hours are on a public holiday;

                     (g)  the employee’s hours of work over the 4 weeks ending immediately before the employee is required or requested to work the additional hours.

Note:          An employee and an employer may agree that the employee may take breaks during any additional hours worked by the employee.

Definition

             (5)  In this section:

public holiday means:

                     (a)  a day declared by or under a law of a State or Territory to be observed generally within the State or Territory, or a region of that State or Territory, as a public holiday by people who work in that State, Territory or region, other than:

                              (i)  a union picnic day; or

                             (ii)  a day, or kind of day, that is excluded by regulations made for the purposes of this paragraph from counting as a public holiday; or

                     (b)  a day that, under (or in accordance with a procedure under) a law of a State or Territory, or an award or workplace agreement, is substituted for a day referred to in paragraph (a).


 

Division 4Annual leave

Subdivision APreliminary

227  Employees to whom Division applies

                   This Division applies to all employees other than casual employees.

228  Definitions

             (1)  In this Division:

annual leave has the meaning given by subsection 232(1).

authorised leave means leave, or an absence, whether paid or unpaid, that is authorised:

                     (a)  by an employee’s employer; or

                     (b)  by or under a term or condition of an employee’s employment; or

                     (c)  by or under a law, or an instrument in force under a law, of the Commonwealth, a State or a Territory.

basic periodic rate of pay has the meaning given by section 178.

Note:          See also section 231.

continuous service, in relation to a period of an employee’s service with an employer, means service with the employer as an employee (other than a casual employee) during the whole of the period, including (as a part of the period) any period of authorised leave.

employee means an employee to whom this Division applies under section 227.

nominal hours worked has the meaning given by section 229.

Note:          See also section 231.

piece rate employee means an employee who is paid a piece rate of pay within the meaning of section 178.

public holiday means:

                     (a)  a day declared by or under a law of a State or Territory to be observed generally within the State or Territory, or a region of that State or Territory, as a public holiday by people who work in that State, Territory or region, other than:

                              (i)  a union picnic day; or

                             (ii)  a day, or kind of day, that is excluded by regulations made for the purposes of this paragraph from counting as a public holiday; or

                     (b)  a day that, under (or in accordance with a procedure under) a law of a State or Territory, or an award or workplace agreement, is substituted for a day referred to in paragraph (a).

shift worker means:

                     (a)  an employee who:

                              (i)  is employed in a business in which shifts are continuously rostered 24 hours a day for 7 days a week; and

                             (ii)  is regularly rostered to work those shifts; and

                            (iii)  regularly works on Sundays and public holidays; or

                     (b)  an employee of a type that is prescribed by regulations made for the purposes of this paragraph.

Note:          Subsection (2) enables regulations to be made providing that an employee belonging to a specified class is not a shift worker.

             (2)  The regulations may provide that an employee:

                     (a)  who is covered by paragraph (a) or (b) of the definition of shift worker in subsection (1); and

                     (b)  who belongs to a class specified in the regulations;

is not a shift worker for the purposes of this Division.

             (3)  Without limiting the way in which a class of employees may be described for the purposes of regulations made under subsection (2), the class may be described by reference to one or more of the following:

                     (a)  a particular industry;

                     (b)  a particular kind of work;

                     (c)  a particular type of employment;

                     (d)  a particular type of shift work (whether described by reference to the organisation or allocation of shifts or otherwise).

229  Meaning of nominal hours worked

Employees employed to work a specified number of hours

             (1)  For the purposes of this Division, if an employee is employed by an employer to work a specified number of hours per week, the number of nominal hours worked, by the employee for the employer during a week, is to be worked out as follows:

                     (a)  start with:

                              (i)  the specified number of hours; or

                             (ii)  if the specified number of hours is more than 38 hours—38 hours;

                     (b)  deduct all of the following:

                              (i)  the number of hours (if any) in the week when the employee is absent from his or her work for the employer on leave which does not count as service;

                             (ii)  the number of hours (if any) in the week (other than hours mentioned in subparagraph (i)) in relation to which the employer is prohibited by section 507 from making a payment to the employee.

Note:          The actual hours worked from week to week by an employee who is employed to work a specified number of hours per week may vary, due to averaging as mentioned in section 226 or to some other kind of flexible working hours scheme that applies to the employee’s employment.

             (2)  If an employee is employed on a full‑time basis, but the terms and conditions of the employee’s employment do not determine the number of hours in a week that is to constitute employment on a full‑time basis for the employee, the employee is, for the purpose of subsection (1), taken to be employed to work 38 hours per week.

             (3)  If an employee is employed to work a specified number (the number of non‑week specified hours) of hours over a period (the non‑week period) that is not a week (for example, a fortnight), then, for the purpose of subsection (1), the employee is taken to be employed to work the number of hours per week determined, subject to the regulations (if any), in accordance with the formula:

Employees not employed to work a specified number of hours

             (4)  For the purposes of this Division, if subsection (1) does not apply to the employment of an employee by an employer, the number of nominal hours worked, by the employee for the employer during a week, is the lesser of the following:

                     (a)  the number worked out as follows:

                              (i)  start with the number of hours (if any) in the week that the employee both works, and is required or requested to work, for the employer;

                             (ii)  add the number of hours (if any) in the week when the employee is absent from his or her work for the employer on leave that counts as service;

                            (iii)  deduct the number of hours (if any) in the week in relation to which the employer is prohibited by section 507 from making a payment to the employee;

                     (b)  the number of nominal hours the employee would be taken to have worked for the employer under subsection (1) during the week if the employee were employed to work 38 hours per week.

Certain types of leave not to count as service

          (4A)  For the purposes of subparagraphs (1)(b)(i) and (4)(a)(ii), a period of authorised unpaid leave or unauthorised leave does not count as service in relation to an employee except:

                     (a)  as expressly provided by:

                              (i)  a term or condition of the employee’s employment; or

                             (ii)  a law, or an instrument in force under a law, of the Commonwealth, a State or a Territory; or

                     (b)  as prescribed by the regulations.

Note:          For whether leave guaranteed under this Part counts as service, see subsections 238(2) (annual leave), 260(2) (paid personal leave), 261(2) (unpaid carer’s leave) and 316(2) (parental leave).

Definition

             (5)  In this section:

hour includes a part of an hour.

Note 1:       The regulations may prescribe a different definition of nominal hours worked for piece rate employees (see section 231).

Note 2:       An employee’s hours of work may be varied (by number or time) in accordance with a workplace agreement, award or contract of employment that binds the employee and his or her employer.

Note 4:       Because of the definition of hour in subsection (5), an employee’s nominal hours worked may be a number of hours and part of an hour.

230  Agreement between employees and employers

Via a workplace agreement

             (1)  For the purposes of this Division, an employee and an employer are taken to agree about a particular matter in a particular way if a provision of a workplace agreement binding the employee and the employer specifies that the matter is to be dealt with in that way.

Via other means

             (2)  To avoid doubt, nothing in this section prevents employees and employers agreeing about matters by other means.

231  Regulations may prescribe different definitions for piece rate employees

                   The regulations may prescribe:

                     (a)  a different definition of basic periodic rate of pay for the purpose of the application of this Division in relation to piece rate employees; and

                     (b)  a different definition of nominal hours worked for the purpose of the application of this Division in relation to piece rate employees.

Subdivision BGuarantee of annual leave

232  The guarantee

             (1)  For the purposes of this Division, annual leave means leave to which an employee is entitled under this Subdivision.

All employees to whom this Division applies

             (2)  An employee is entitled to accrue an amount of paid annual leave, for each completed 4 week period of continuous service with an employer, of 1/13 of the number of nominal hours worked by the employee for the employer during that 4 week period.

Example:    An employee whose nominal hours worked for a 12 month period were 38 hours per week would be entitled under this subsection to 152 hours of annual leave (which would be the equivalent of 4 weeks of annual leave if his or her nominal hours worked remained unchanged).

Additional leave entitlement for shift workers

             (3)  An employee is also entitled to accrue an amount of paid annual leave, for each completed 12 month period of continuous service with an employer, of 1/52 of the number of nominal hours worked by the employee, for the employer, as a shift worker during that 12 month period.

Example:    A shift worker whose nominal hours worked for a 12 month period were 38 hours per week, and who worked as a shift worker throughout that period, would be entitled under this subsection to an additional 38 hours of annual leave (which would be the equivalent of one week of annual leave if his or her nominal hours worked remained unchanged).

233  Entitlement to cash out annua