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INDUSTRIAL RELATIONS REFORM ACT 1993 No. 98 of 1993 - SECT 31
31. Before Part VII of the Principal Act the following Part is inserted:
"PART VIB-PROMOTING BARGAINING AND FACILITATING AGREEMENTS
"Division 1-Objects and interpretation Objects
"170LA.(1) The objects of this Part are:
(a) to facilitate:
(i) the making and certifying of agreements under Division 2; and
(ii) the making, and approval of the implementation of, agreements
under Division 3; and
(b) to encourage the use of agreements, particularly at the workplace or
enterprise level.
"(2) The Commission must, as far as practicable, perform its functions under
this Part in a way that furthers the objects of this Act and, in particular,
the objects of this Part.
"(3) Sections 90 and 106 do not apply to the performance of functions of the
Commission under this Part.
"(4) In performing its functions under this Part, the Commission may not act
under paragraph 111(1)(g) on the grounds specified in subparagraphs (i) and
(iii) of that paragraph. Definitions
"170LB. In this Part, unless the contrary intention appears:
'eligible union', in relation to an agreement that applies to an enterprise
carried on by an employer, means an organisation of employees:
(a) that is a party to an award that binds the employer in respect of work
performed in that enterprise; and
(b) of which one or more employees whom the employer employs to perform
work in that enterprise are members;
'enterprise' has the meaning given by section 170LC;
'part', in relation to a single business, includes, for example:
(a) a geographically distinct part of the single business; or
(b) a distinct operational or organisational unit within the single
business;
'party', in relation to an agreement, includes an employer who is a successor,
assignee or transmittee (whether immediate or not) to or of the whole or part
of the business of a party, including a corporation that has acquired or taken
over the whole or part of the business of the party;
'single business' means:
(a) a business that is carried on by a single employer; or
(b) a business that is carried on by 2 or more employers as a joint
venture or common enterprise; or
(c) a single project or undertaking; or
(d) activities carried on by:
(i) the Commonwealth, a State or a Territory; or
(ii) a body, association, office or other entity established for a
public purpose by or under a law of the Commonwealth, a State
or a Territory; or
(iii) any other body in which the Commonwealth, a State or a
Territory has a controlling interest. Meaning of 'enterprise'
"170LC.(1) For the purposes of this Part, each of the following is an
enterprise:
(a) a business that is carried on by a single employer; or
(b) a geographically distinct part of such a business; or
(c) 2 or more geographically distinct parts of the same business carried
on by a single employer.
"(2) If, on an application under Division 3 to approve implementation of an
agreement, the Commission decides that it is satisfied that:
(a) the agreement applies only to a part of a business, or to 2 or more
parts of the same business, carried on by a single employer; and
(b) it is appropriate to regard that part, or each of those parts, as a
geographically distinct part of that business; that part is taken to
be such a part and to have been such a part when the agreement was
made.
"(3) If a business is made up of 2 or more geographically distinct parts, the
Commission may approve under Division 3 implementation of:
(a) an agreement that applies to an enterprise constituted by the whole of
the business; or
(b) one or more agreements each relating to an enterprise constituted by
one or more of those distinct parts.
"(4) However, an enterprise flexibility agreement that applies to the whole of
a business cannot be in force at the same time as an enterprise flexibility
agreement that applies to one or more parts of that business.
"Division 2-Certified agreements Certified agreements
"170MA.(1) If the parties to an industrial dispute, or any of them, agree on
terms for:
(a) the settlement of all or any of the matters in dispute; or
(b) the prevention of further industrial disputes between them; they may
make a memorandum of the terms agreed on.
"(2) If the parties to an industrial situation, or any of them, agree on terms
for preventing the situation from giving rise to an industrial dispute between
them, they may make a memorandum of the terms agreed on.
"(3) A single memorandum may deal with 2 or more disputes or situations.
"(4) All or any of the parties to the agreement may apply to the Commission to
certify the agreement. Organisations entitled to be heard
"170MB.(1) On an application to the Commission:
(a) to certify an agreement that applies only to a single business, part
of a single business, or a single place of work; or
(b) to approve an extension or variation of a certified agreement that so
applies; an organisation of employees is entitled to be heard if:
(c) the organisation is entitled to represent the industrial interests of
members of the organisation who are employed, by an employer who is a
party to the agreement, to perform work in that business, part of a
business or place of work; or
(d) the organisation:
(i) is bound by an award that binds such an employer in respect of
work performed in that business, part of a business or place of
work; and
(ii) can show that it has a genuine interest in the application.
"(2) This section does not affect any other right of an organisation of
employees, or of any other person or body, to intervene or be heard, or to
apply to intervene or be heard, on an application. Certification of agreements
"170MC.(1) The Commission must certify an agreement if, and must not certify
an agreement unless, it is satisfied that:
(a) wages and conditions of employment of the employees covered by the
agreement are regulated by one or more awards (as defined in
subsection (6)) that bind their employer, or their respective
employers; and
(b) the agreement does not, in relation to their terms and conditions of
employment, disadvantage the employees who are covered by the
agreement; and
(c) the agreement includes procedures for preventing and settling disputes
between the employers and employees covered by the agreement about
matters arising under the agreement; and
(d) either:
(i) the agreement establishes a process for the parties to the
agreement to consult each other about matters involving changes
to the organisation or performance of work in any place of work
to which the agreement relates; or
(ii) the parties have agreed that it is not appropriate for the
agreement to provide as mentioned in subparagraph (i); and
(e) subject to subsection (3), during the negotiations for the agreement,
reasonable steps were taken to consult the employees who are covered
by the agreement about the agreement; and
(f) subject to subsection (3), before the application for certification
was made, reasonable steps were taken:
(i) to inform the employees who are covered by the agreement about
the terms of the agreement; and
(ii) to explain to those employees the effect of those terms; and
(iii) in particular, to explain to those employees the procedures
referred to in paragraph (c); and
(iv) to inform those employees of the intention to apply to the
Commission to certify the agreement, and about the consequences
of certification; and
(g) if the agreement applies only to a single business, part of a single
business or a single place of work:
(i) subject to subsections (4) and (5), the parties to the
agreement include each organisation of employees that is a
party to the award, or to one or more of the awards, referred
to in paragraph (1)(a); and
(ii) the agreement has been negotiated, on the one hand, by each
employer concerned or a representative of the employer, and, on
the other hand, by a single person or group of persons
representing all the other parties to the agreement; and
(h) the agreement specifies the period of operation of the agreement.
"(2) For the purposes of paragraph (1)(b), an agreement is taken to
disadvantage employees in relation to their terms and conditions of employment
only if:
(a) certification of the agreement would result in the reduction of any
entitlements or protections of those employees under:
(i) an award (as defined in subsection (6)); or
(ii) any other law of the Commonwealth or of a State or Territory
that the Commission thinks relevant; and
(b) in the context of their terms and conditions of employment considered
as a whole, the Commission considers that the reduction is contrary to
the public interest.
"(3) Paragraphs (1)(e) and (f) do not apply if the Commission is satisfied
that:
(a) the agreement applies only to a new business, project or undertaking;
and
(b) when the application for certification was made, no-one had yet been
employed in connection with the business, project or undertaking.
"(4) Subparagraph (1)(g)(i) does not apply if the Commission is satisfied
that:
(a) each organisation of employees referred to in that subparagraph has
been given the opportunity to be a party to the agreement; and
(b) at least one of those organisations is a party to the agreement; and
(c) the agreement is in the interests of the employees whose employment is
covered by the agreement.
"(5) Subparagraph (1)(g)(i) does not apply to an organisation of employees if
none of its members is employed in the business, part of a business or place
of work concerned.
"(6) In this section:
'award' includes a State award but does not include:
(a) an order under Part VIA; or
(b) a certified agreement; or
(c) an enterprise flexibility agreement. When Commission to refuse to
certify agreements
"170MD.(1) Despite section 170MC, the Commission may refuse to certify an
agreement if:
(a) in the case of any agreement-the Commission thinks that any of the
terms is one that the Commission would not have power to include in an
award (disregarding section 95); or
(b) except in the case of an agreement that applies only to a single
business, a part of a single business or a single place of work-the
Commission thinks that certifying the agreement would be contrary to
the public interest.
"(2) Despite section 170MC, the Commission must refuse to certify an agreement
if the Commission thinks that a provision of the agreement is inconsistent
with:
(a) a provision of Part VIA; or
(b) an order by the Commission under that Part; or
(c) an injunction granted, or any other order made, by the Court under
that Part.
"(3) Despite section 170MC, the Commission must refuse to certify an agreement
if satisfied that:
(a) an employer who is a party to the agreement has, in connection with
negotiating the agreement, contravened section 170RA, 320 or 334; or
(b) such an employer has caused a person or body to engage, in or in
connection with negotiations for the agreement, in conduct that, had
the employer engaged in it, would be a contravention by the employer
of section 170RA, 320 or 334; or
(c) a person or body has, on behalf of such an employer:
(i) so engaged in such conduct; or
(ii) caused another person or body so to engage in such conduct.
"(4) Subsection (3) does not apply if the Commission is satisfied that the
contravention or conduct, and its effects, have been fully remedied.
"(5) Despite section 170MC, the Commission must refuse to certify an agreement
if it thinks that a provision of the agreement discriminates against an
employee because of, or for reasons including, race, colour, sex, sexual
preference, age, physical or mental disability, marital status, family
responsibilities, pregnancy, religion, political opinion, national extraction
or social origin.
"(6) Subsection (5) does not apply in so far as a provision:
(a) discriminates, in respect of particular employment, based on the
inherent requirements of that employment; or
(b) discriminates:
(i) in connection with employment as a member of the staff of an
institution that is conducted in accordance with the doctrines,
tenets, beliefs or teachings of a particular religion or creed;
and
(ii) in good faith in order to avoid injury to the religious
susceptibilities of adherents of that religion or creed.
"(7) Despite section 170MC, the Commission may refuse to certify an agreement
if:
(a) the agreement applies only to a part of a single business that is
neither of the following:
(i) a geographically distinct part of the single business; or
(ii) a distinct operational or organisational unit within the single
business; and
(b) the Commission considers that:
(i) the agreement defines that part in a way that results in the
agreement not covering employees whom it would be reasonable
for the agreement to cover, having regard to:
(A) the nature of the work performed by the employees whom
the agreement does cover; and
(B) the organisational and operational relationships between
that part and the rest of the single business; and
(ii) it is unfair for the agreement not to cover those employees.
How agreement may provide for its variation
"170ME.(1) If an agreement provides for any of its terms to be varied by a
later agreement, the Commission must refuse to certify the agreement unless it
is satisfied that:
(a) the agreement so provides in order to maintain and make effective the
settlement or prevention referred to in paragraph 170MA(1)(a) or (b),
as the case requires; and
(b) the agreement specifies the terms that can be so varied, and the
circumstances in which, and the ways in which, they can be so varied;
and
(c) the agreement provides that a variation has effect only if:
(i) it is agreed to by all the parties who are bound by the
agreement when the variation is made; and
(ii) it is approved by the Commission under section 170ML.
"(2) To avoid doubt, subsection (1) does not apply to an agreement in so far
as the obligations under the agreement can change, because of the terms of the
agreement, without the need for a later agreement between the parties. Other
options open to Commission instead of refusing to certify agreement
"170MF.(1) If, under section 170MC, 170MD or 170ME, the Commission has grounds
to refuse to certify an agreement:
(a) the Commission may accept an undertaking from one or more of the
parties in relation to the operation of the agreement and, if
satisfied that the undertaking meets the Commission's concerns,
certify the agreement; and
(b) in any case, before refusing to certify the agreement, the Commission
must give the parties an opportunity to amend it or to take any other
action that may be necessary to make the agreement certifiable.
"(2) If an undertaking is not observed, the Commission may terminate the
agreement after giving the parties an opportunity to be heard. Commission to
protect interests of certain employees
"170MG.(1) The Commission must comply with this section in performing its
functions and exercising its powers in relation to an application to certify
an agreement.
"(2) The Commission must identify the employees ('relevant employees'), if
any, who are covered by the agreement but whose interests may not have been
sufficiently taken into account in the negotiations for, or the terms of, the
agreement. Examples of employees whose interests may not have been so taken
into account are:
(a) women;
(b) persons whose first language is not English;
(c) young persons.
"(3) For the purposes of deciding whether it is satisfied as mentioned in
paragraphs 170MC(1)(e) and (f), the Commission must do whatever is necessary
to find out:
(a) whether:
(i) the relevant employees were consulted about the agreement, and
informed about the matters referred to in subparagraphs
170MC(1)(f)(i) and (iv); and
(ii) the matters referred to in subparagraphs 170MC(1)(f)(ii) and
(iii) were explained to the relevant employees; in ways that
were appropriate having regard to their particular
circumstances and needs; and
(b) whether the effects on the relevant employees of the terms of the
agreement were properly explained to those employees.
"(4) If it considers that there has been a failure to consult or explain as
mentioned in subsection (3), the Commission must make whatever orders it
thinks necessary to remedy the failure and its effects. Procedures for
preventing and settling disputes
"170MH. Procedures in an agreement for preventing and settling disputes
between employers and employees covered by the agreement may, if the
Commission so approves, empower the Commission to do either or both of the
following:
(a) to settle disputes over the application of the agreement;
(b) to appoint a board of reference as described in section 131 for the
purpose of settling such disputes. Operation of certified agreements
"170MI.(1) A certified agreement comes into force when it is certified and,
during the period of the agreement and for 3 months after that period, it
remains in force unless:
(a) the Commission terminates it under subsection 170MF(2); or
(b) because of one or more orders or declarations under section 170MJ,
170MM or 170MN:
(i) the agreement is terminated; or
(ii) all the remaining parties to the agreement are organisations of
employees; or
(iii) all the remaining parties to the agreement are employers or
organisations of employers; or
(c) the period of the agreement has ended and the agreement is replaced by
a new certified agreement or by an enterprise flexibility agreement.
"(2) During the period of the agreement and for 3 months after that period,
subsections 148(1) and (3) do not apply to the agreement, but subsection
148(2) does so apply.
"(3) If the agreement remains in force until the end of the 3 months after the
period of the agreement, then, at the end of those 3 months:
(a) section 148 applies to the agreement; and
(b) the agreement continues in force accordingly.
"(4) In the application of section 148 to the agreement in accordance with
this section, a reference in that section to the period specified in the award
as the period for which the award is to continue in force is taken to be a
reference to the period of the agreement.
"(5) In this section:
'period of the agreement' means the period of operation of the agreement
specified in the agreement, or that period as extended or further extended
under section 170MJ. Extension of certified agreements
"170MJ.(1) Subject to this section, the parties to a certified agreement may
extend the period of operation of the agreement.
"(2) An extension has no effect unless:
(a) the parties agree to the extension; and
(b) before the end of the period of operation of the agreement or that
period as last extended under this section:
(i) if the agreement applies only to a single business, part of a
single business or a single place of work-one or more of the
parties apply to the Commission to approve the extension; or
(ii) otherwise-one or more of the parties notify the Commission in
writing of the extension.
"(3) If an application is made in accordance with subparagraph (2)(b)(i), the
extension has effect at least until the application is determined, even if
that happens after the period referred to in paragraph (2)(b).
"(4) On an application, the Commission must approve the extension unless an
organisation of employees that is entitled under section 170MB to be heard
satisfies the Commission that the extension would not be in the interests of
the employees covered by the agreement. If that happens, the Commission must
refuse to approve the extension. Effect of certified agreements
"170MK.(1) While a certified agreement is in force:
(a) subject to paragraph (b), the terms of the agreement prevail over the
terms of an award or order of the Commission; and
(b) the agreement has no effect in so far as it is inconsistent with an
enterprise flexibility agreement whose implementation was approved
before the first-mentioned agreement was certified; and
(c) a term of the agreement can be set aside or varied by the parties, but
only as provided in subsection 113(2C) or section 170ML or 170MM; and
(d) the agreement or a term of the agreement is not to be set aside under
subsection 113(1) or cancelled or suspended under section 187; and
(e) the agreement may only be varied under subsection 113(2) for the
purpose of:
(i) removing ambiguity or uncertainty; or
(ii) including, omitting or varying a bans clause; or
(iii) including, omitting or varying a term (however expressed) that
authorises an employer to stand-down an employee; and
(f) the Commission may take action in relation to the agreement under
subsection 113(2A); and
(g) except as provided by this Division, the Commission is not to exercise
arbitration powers to vary the agreement.
"(2) The agreement may, by express provision, exclude or limit the operation
of subparagraphs (1)(e)(ii) and (iii).
"(3) While it continues in force because of subsection 170MI(3), the agreement
cannot be varied under subsection 113(2) except:
(a) for the purpose of:
(i) removing ambiguity or uncertainty; or
(ii) including, omitting or varying a bans clause; or
(iii) including, omitting or varying a term (however expressed) that
authorises an employer to stand-down an employee; or
(b) in a case where, on application by a party to the agreement, the
Commission is satisfied that:
(i) since the end of the period of the agreement, or of that period
as last extended under section 170MJ, the party applying for
the variation has tried in good faith to negotiate a new
agreement under this Part to replace the certified agreement;
and
(ii) there is no reasonable prospect of such a new agreement being
made; and
(iii) the variation would be in the public interest.
"(4) The operation of subparagraphs (3)(a)(ii) and (iii) is excluded or
limited to the same extent as the agreement excludes or limits the operation
of subparagraphs (1)(e)(ii) and (iii). Variation of certified agreement as
provided in the agreement
"170ML.(1) If a certified agreement provides for any of its terms to be varied
by a later agreement, such a variation takes effect only if approved by the
Commission on application by the parties bound by the agreement when the
variation is made.
"(2) The Commission must approve the variation if, and must not approve it
unless, the Commission is satisfied that:
(a) the variation was made in accordance with the agreement; and
(b) the variation has been agreed to by all parties bound by the agreement
when the variation was made; and
(c) if:
(i) the application for approval were an application to the
Commission to certify the agreement as varied; and
(ii) the agreement as in force before the variation takes effect
were not in force; the Commission would have no grounds under
paragraph 170MC(1)(b) or section 170MD to refuse to certify the
agreement as varied.
"(3) If the Commission has grounds to refuse to approve the variation:
(a) the Commission may accept an undertaking from one or more of the
parties in relation to the operation of the agreement as varied and,
if satisfied that the undertaking meets the Commission's concerns, may
approve the variation; and
(b) in any case, before refusing to approve the variation, the Commission
must give the parties an opportunity to do whatever is needed for the
Commission to be able to approve the variation.
"(4) If an undertaking is not observed, the Commission may set aside the
variation after giving the parties an opportunity to be heard. Certified
agreements may be varied or terminated by Full Bench
"170MM.(1) At any time while a certified agreement is in force, a Full Bench
may review the operation of the agreement after giving the parties to the
agreement an opportunity to be heard.
"(2) The Full Bench may act under subsection (1) only:
(a) on its own initiative; or
(b) on application by an organisation or person bound by the agreement.
"(3) A Full Bench must, within 3 years of the date on which a certified
agreement continues in force because of subsection 170MI(3), and within each
subsequent period of 3 years, review the operation of the agreement after
giving the parties to the agreement an opportunity to be heard.
"(4) If the Full Bench finds:
(a) in the case of any agreement-that the continued operation of the
agreement would be unfair to the employees covered by the agreement;
or
(b) in the case of an agreement that does not apply only to a single
business, part of a single business or a single place of work-that the
continued operation of the agreement would be contrary to the public
interest; it may do any of the following things:
(c) by order, terminate the agreement;
(d) accept an undertaking from all or any of the parties in relation to
the operation of the agreement;
(e) permit the parties to vary the agreement.
"(5) If an undertaking is not observed, the Full Bench may, by order,
terminate the agreement after giving the parties an opportunity to be heard.
"(6) If a party to a certified agreement engages in industrial action in
relation to a matter dealt with in the agreement, another party who is
affected by the industrial action may apply to the Commission for a
declaration that the party so applying is no longer bound by the agreement.
"(7) On such an application, the Commission may, by order, declare that the
applicant is no longer bound by the agreement if the Commission is satisfied
that it is in the public interest to make the declaration. Certified
agreements may be terminated by parties
"170MN.(1) A party to a certified agreement may, with the consent of all the
relevant parties, give the Commission written notice stating that the party
does not want to remain bound by the agreement.
"(2) All the parties to a certified agreement may jointly give the Commission
written notice stating that they want the agreement to be terminated.
"(3) On receipt of such a notice, if the Commission is satisfied that it would
be in the public interest for the party to be no longer bound or for the
agreement to be terminated, as the case may be, the Commission may, by order,
make a declaration to that effect.
"(4) In this section:
'relevant party', in relation to an agreement, means:
(a) in relation to a party to the agreement that is an employer or an
organisation of employers-a party that is an organisation of
employees; or
(b) in relation to a party to the agreement that is an organisation of
employees-a party that is an employer or an organisation of employers.
"Division 3-Enterprise flexibility agreements When employer may apply for
approval of implementation of agreement
"170NA.(1) An employer that is a constitutional corporation and carries on an
enterprise may prepare an instrument that:
(a) applies to the enterprise; and
(b) is about matters pertaining to the relationship between employers and
employees.
"(2) If an instrument is prepared under subsection (1):
(a) it is taken for the purposes of this Act to be an agreement and to
have been made when the instrument was prepared; and
(b) the employer may apply to the Commission to approve implementation of
the agreement. Note: It is expected that an employer will apply to the
Commission under subsection (2) only if the agreement reflects the
outcome of negotiations by the employer with:
D employees covered by the agreement; and
D any eligible unions (as defined in section 170LB) that
choose to take part. This is because approval of implementation of the
agreement:
D depends on a majority of the employees covered by the
agreement genuinely agreeing to be bound by it (see
paragraph 170NC(1)(i)); and
D may be refused if the employer failed to notify eligible
unions about the negotiations or to give them a reasonable opportunity to take
part (see subsection 170ND(7)). Organisations entitled to be heard
"170NB.(1) On an application to the Commission:
(a) to approve implementation of an agreement; or
(b) to extend an enterprise flexibility agreement's period of operation;
an organisation of employees is entitled to be heard if it is bound by
an award that binds the employer in respect of work performed in the
enterprise.
"(2) As soon as practicable after the application is made, the Commission must
publish a notice, as prescribed, that the application has been made.
"(3) This section does not affect any other right of an organisation of
employees, or of any other person or body, to intervene or be heard, or to
apply to intervene or be heard, on an application to the Commission. Approval
of implementation of agreement
"170NC.(1) On an application to the Commission to approve implementation of an
agreement, the Commission must do so if, and must not do so unless, it is
satisfied that:
(a) the agreement applies only to the enterprise referred to in section
170NA and is only about matters pertaining to the relationship between
employers and employees; and
(b) wages and conditions of employment of the employees covered by the
agreement are regulated by one or more awards (as defined in
subsection
(3) ) that bind the employer; and
(c) the agreement covers all of the employees:
(i) in respect of whom wages and conditions of employment are
regulated by one or more awards (as defined in subsection (3))
that bind the employer; and
(ii) whom the employer employs to perform work in that enterprise;
and
(d) the agreement does not, in relation to their terms and conditions of
employment, disadvantage the employees who are covered by the
agreement; and
(e) the agreement includes procedures for preventing and settling disputes
between the persons bound by the agreement about matters arising under
the agreement; and
(f) either:
(i) the agreement establishes a process for the persons bound by
the agreement to consult each other about matters involving
changes to the organisation or performance of work in the
enterprise; or
(ii) the agreement states that it is not appropriate for the
agreement to provide as mentioned in subparagraph (i); and
(g) during the negotiations for the agreement, reasonable steps were taken
to consult employees who are covered by the agreement about the
agreement; and
(h) before the application for approval was made, reasonable steps were
taken:
(i) to inform the employees who are covered by the agreement about
the terms of the agreement; and
(ii) to explain to those employees the effect of those terms; and
(iii) in particular, to explain to those employees the procedures
referred to in paragraph (e); and
(iv) to inform those employees of the intention to apply to the
Commission to approve implementation of the agreement, and
about the consequences of approval; and
(i) a majority of the persons who, as at the end of a day that is
specified in the application and is not more than 7 days before
the day when the application was made, were employees covered
by the agreement have, on or before the specified day,
genuinely agreed to be bound by the agreement, even if they so
agreed at different times; and
(j) the agreement specifies its period of operation.
"(2) For the purposes of paragraph (1)(d), an agreement is taken to
disadvantage employees in relation to their terms and conditions of employment
only if:
(a) approval of implementation of the agreement would result in the
reduction of any entitlements or protections of those employees under:
(i) an award (as defined in subsection (3)); or
(ii) any other law of the Commonwealth or of a State or Territory
that the Commission thinks relevant; and
(b) in the context of their terms and conditions of employment considered
as a whole, the Commission considers that the reduction is contrary to
the public interest.
"(3) In this section: 'award' does not include:
(a) an order under Part VIA; or
(b) a certified agreement; or
(c) an enterprise flexibility agreement. When Commission to refuse to
approve implementation of agreements
"170ND.(1) Despite section 170NC, the Commission may refuse to approve
implementation of an agreement if the Commission thinks that the agreement
includes a term that a provision of this Act (except section 95) or of any
other Act would prohibit the Commission from including in an award.
"(2) Despite section 170NC, the Commission must refuse to approve
implementation of an agreement if the Commission thinks that a provision of
the agreement is inconsistent with:
(a) a provision of Part VIA; or
(b) an order by the Commission under that part; or
(c) an injunction granted, or any other order made, by the Court under
that Part.
"(3) Despite section 170NC, the Commission may refuse to approve
implementation of an agreement if satisfied that, because of exceptional
circumstances, approving implementation of the agreement would be contrary to
the public interest.
"(4) Approving implementation of an agreement is not contrary to the public
interest merely because the agreement is inconsistent with principles
established by a Full Bench that apply in relation to determining wages and
conditions of employment by awards made under Part VI.
"(5) Despite section 170NC, the Commission must refuse to approve
implementation of an agreement if satisfied that:
(a) the employer has, in or in connection with negotiating the agreement,
contravened section 170RA, 170RB, 320 or 334; or
(b) the employer has caused a person or body to engage, in or in
connection with negotiations for the agreement, in conduct that, if
the employer had engaged in it, would be a contravention by the
employer of section 170RA, 170RB, 320 or 334; or
(c) a person or body has, on behalf of the employer:
(i) so engaged in such conduct; or
(ii) caused another person or body so to engage in such conduct.
"(6) Subsection (5) does not apply if the Commission is satisfied that the
contravention or conduct, and its effects, have been fully remedied.
"(7) Despite section 170NC, the Commission may refuse to approve
implementation of an agreement, or may adjourn an application to approve such
implementation, if satisfied that the employer:
(a) did not, before or as soon as practicable after the time when
negotiations for the agreement began, notify each organisation that
was at that time an eligible union about the negotiations; or
(b) did not give each such organisation a reasonable opportunity to take
part in the negotiations and to agree, before the application for
approval was made, to be bound by the agreement. "(8) Subsection (7)
does not apply in relation to an organisation if the employer could
not reasonably be expected to have known at, or within a reasonable
period after the time when negotiations for the agreement began, that
the organisation was an eligible union at that time.
"(9) In deciding what action (if any) to take under subsection (7), the
Commission must consider:
(a) whether it thinks the failure was intentional; and
(b) any other relevant circumstances.
"(10) Despite section 170NC, the Commission must refuse to approve
implementation of an agreement if it thinks that a provision of the agreement
discriminates against an employee because of, or for reasons including, race,
colour, sex, sexual preference, age, physical or mental disability, marital
status, family responsibilities, pregnancy, religion, political opinion,
national extraction or social origin.
"(11) Subsection (10) does not apply in so far as a provision:
(a) discriminates, in respect of particular employment, based on the
inherent requirements of that employment; or
(b) discriminates:
(i) in connection with employment as a member of the staff of an
institution that is conducted in accordance with the doctrines,
tenets, beliefs or teachings of a particular religion or creed;
and
(ii) in good faith in order to avoid injury to the religious
susceptibilities of adherents of that religion or creed. How
agreement may provide for its variation
"170NE.(1) If an agreement ('the main agreement') provides for any of its
terms to be varied by a later enterprise flexibility agreement applying to the
same enterprise, the Commission must refuse to approve implementation of the
main agreement unless satisfied that the main agreement specifies the terms
that can be so varied, and the circumstances in which, and the ways in which,
they can be so varied.
"(2) To avoid doubt, subsection (1) does not apply to an agreement in so far
as the obligations under the agreement can change because of the terms of the
agreement itself. Other options open to Commission
"170NF.(1) This section applies if, under section 170NC, 170ND or 170NE, the
Commission has grounds to refuse to approve implementation of an agreement.
"(2) The Commission may accept an undertaking, about the agreement's
operation, from one or more persons:
(a) who would be bound by the agreement; and
(b) whom the Commission considers to be the appropriate person or persons
to give the undertaking. The Commission may approve implementation of
the agreement if satisfied that the undertaking meets its concerns.
"(3) Whether or not it accepts an undertaking, the Commission must, before
refusing to approve implementation of the agreement:
(a) give the employer an opportunity to vary the agreement by an
instrument made with the approval, obtained as directed by the
Commission, of a majority of the persons who, as at the end of a day
specified in the direction, were employees covered by the agreement;
or
(b) give the persons who would be bound by the agreement an opportunity to
do whatever else is needed for the Commission to be able to approve
implementation of the agreement.
"(4) If an undertaking under this section is not complied with, the Commission
may terminate the agreement after giving the persons bound by it an
opportunity to be heard. Commission to protect interests of certain employees
"170NG.(1) The Commission must comply with this section in performing its
functions and exercising its powers in relation to an application to approve
implementation of an agreement.
"(2) The Commission must identify the employees ('relevant employees'), if
any, who are covered by the agreement but whose interests may not have been
sufficiently taken into account in the negotiations for, or the terms of, the
agreement. Examples of employees whose interests may not have been so taken
into account are:
(a) women;
(b) persons whose first language is not English;
(c) young persons.
"(3) For the purposes of deciding whether it is satisfied as mentioned in
paragraphs 170NC(1)(g) and (h), the Commission must do whatever is necessary
to find out:
(a) whether:
(i) the relevant employees were consulted about the agreement, and
informed about the matters referred to in subparagraphs
170NC(1)(h)(i) and (iv); and
(ii) the matters referred to in subparagraphs 170NC(1)(h)(ii) and
(iii) were explained to the relevant employees; in ways that
were appropriate having regard to their particular
circumstances and needs; and
(b) whether the effects on the relevant employees of the terms of the
agreement were properly explained to those employees.
"(4) If it considers that there has been a failure to consult or explain as
mentioned in subsection (3), the Commission must make whatever orders it
thinks necessary to remedy the failure and its effects. Commission to
determine how enterprise flexibility agreements to be published
"170NH.(1) As soon as practicable after approving the implementation of an
agreement, the Commission must determine how the agreement should be published
in order to ensure that the agreement's contents are:
(a) easily available to employees covered by the agreement; and
(b) easy for those employees to understand.
"(2) The Industrial Registrar must ensure that the agreement is published in
accordance with the determination. Procedures for preventing and settling
disputes
"170NI. Procedures in an agreement for preventing and settling disputes
between the persons bound by the agreement may, if the Commission so approves,
empower the Commission to do either or both of the following:
(a) to settle disputes over the application of the agreement;
(b) to appoint a board of reference as described in section 131 for the
purpose of settling such disputes. Operation of enterprise flexibility
agreements
"170NJ.(1) An enterprise flexibility agreement comes into force when its
implementation is approved and, during the period of the agreement and for 3
months after that period, it remains in force unless:
(a) the Commission terminates it under subsection 170NF(4); or
(b) because of one or more orders or declarations under section 170NN or
170NO:
(i) the agreement is terminated; or
(ii) no employer is bound by the agreement; or
(iii) no employee or organisation of employees is bound by the
agreement; or
(c) the period of the agreement has ended and the agreement is replaced by
a new enterprise flexibility agreement or by a certified agreement.
"(2) During the period of the agreement and the 3 months after that period,
subsections 148(1) and (3) do not apply to the agreement, but subsection
148(2) does so apply.
"(3) If the agreement remains in force until the end of the 3 months after the
period of the agreement, then, at the end of those 3 months:
(a) section 148 applies to the agreement; and
(b) the agreement continues in force accordingly.
"(4) In the application of section 148 to the agreement in accordance with
this section, a reference in that section to the period specified in the award
as the period for which the award is to continue in force is taken to be a
reference to the period of the agreement.
"(5) In this section:
'period of the agreement' means the period of operation of the agreement
specified in the agreement, or that period as extended or further extended
under section 170NK. Extension of enterprise flexibility agreements
"170NK.(1) Subject to this section, the Commission must extend an enterprise
flexibility agreement's period of operation, in accordance with an application
by the employer, if the Commission is satisfied that a majority of the persons
who, as at the end of a day that is specified in the application and is not
more than 7 days before the day when the application was made, were employees
covered by the agreement have, on or before the specified day, genuinely
agreed to the proposed extension, even if they so agreed at different times.
"(2) However, the Commission must not extend the period of operation if:
(a) that period, or that period as last extended under this section, has
ended; or
(b) an organisation of employees that is entitled under section 170NB to
be heard on the application satisfies the Commission that the
extension would not be in the interests of the employees covered by
the agreement.
"(3) If it appears to the Commission that the period of operation, or that
period as last extended under this section, will end before the application is
determined, the Commission may by order extend that period until the
application is determined. The Commission may revoke an order extending that
period. Effect of enterprise flexibility agreements
"170NL.(1) While an enterprise flexibility agreement is in force:
(a) subject to paragraph (b), the terms of the agreement prevail over the
terms of an award or order of the Commission; and
(b) the agreement has no effect in so far as it is inconsistent with a
certified agreement that was certified before implementation of the
first-mentioned agreement was approved; and
(c) a term of the agreement can be set aside or varied by the employer as
provided in subsection 113(2D) or section 170NM or 170NN, but not
otherwise; and
(d) the agreement or a term of the agreement is not to be set aside under
subsection 113(1) or cancelled or suspended under section 187; and
(e) the agreement may only be varied under subsection 113(2) for the
purpose of:
(i) removing ambiguity or uncertainty; or
(ii) including, omitting or varying a bans clause; or
(iii) including, omitting or varying a term (however expressed) that
authorises an employer to stand-down an employee; and
(f) the Commission may take action in relation to the agreement under
subsection 113(2A); and
(g) except as provided by this Division, the Commission is not to exercise
any powers to vary the agreement.
"(2) The agreement may, by express provision, exclude or limit the operation
of subparagraphs (1)(e)(ii) and (iii).
"(3) While it continues in force because of subsection 170NJ(3), the agreement
cannot be varied under subsection 113(2) except:
(a) for the purpose of:
(i) removing ambiguity or uncertainty; or
(ii) including, omitting or varying a bans clause; or
(iii) including, omitting or varying a term (however expressed) that
authorises an employer to stand-down an employee; or
(b) in a case where the Commission is satisfied that:
(i) since the end of the period of the agreement, or of that period
as last extended under section 170NK, the person applying for
the variation has tried in good faith to negotiate a new
agreement under this Part to replace the first-mentioned
agreement; and
(ii) there is no reasonable prospect of such a new agreement being
made; and
(iii) the variation would be in the public interest.
"(4) The operation of subparagraphs (3)(a)(ii) and (iii) is excluded or
limited to the same extent as the agreement excludes or limits the operation
of subparagraphs (1)(e)(ii) and (iii). Variation of enterprise flexibility
agreement as provided in the agreement
"170NM.(1) This section applies for the purposes of an application to the
Commission to approve implementation of an agreement ('the variation') varying
an enterprise flexibility agreement ('the main agreement') that provides for
any of its terms to be varied by a later enterprise flexibility agreement.
"(2) Subject to subsection (3), the Commission must deal with the application
as if:
(a) it were an application to the Commission to approve implementation of
the main agreement as varied; and
(b) the main agreement as in force before the variation takes effect were
not in force.
"(3) The Commission may approve implementation of the variation only if
satisfied that:
(a) the variation was made in accordance with the main agreement; and
(b) the enterprise to which the variation applies is the same as the one
to which the main agreement applies; and
(c) the variation provides only for varying the main agreement and for
matters incidental to varying it. Enterprise flexibility agreements
may be varied or terminated by Full Bench
"170NN.(1) At any time while an enterprise flexibility agreement is in force,
a Full Bench may review the agreement's operation after giving the persons
bound by the agreement an opportunity to be heard.
"(2) The Full Bench may act under subsection (1) only:
(a) on its own initiative; or
(b) on application by a person bound by the agreement.
"(3) A Full Bench must, within 3 years of the date on which an enterprise
flexibility agreement continues in force because of subsection 170NJ(3), and
within each subsequent period of 3 years, review the operation of the
agreement after giving the parties to the agreement an opportunity to be
heard.
"(4) If the Full Bench finds that the continued operation of the agreement
would be unfair to the employees covered by the agreement, it may do any of
the following:
(a) by order, terminate the agreement;
(b) accept an undertaking in relation to the agreement's operation;
(c) permit the employer to vary the agreement by an instrument made with
the approval, obtained as directed by the Commission, of a majority of
the persons who, as at the end of a day specified in the direction,
were employees covered by the agreement.
"(5) If an undertaking is not observed, the Full Bench may, by order,
terminate the agreement after giving the persons bound by it an opportunity to
be heard.
"(6) If a person bound by an enterprise flexibility agreement engages in
industrial action in relation to a matter dealt with in the agreement, another
person who is bound by the agreement and is affected by the industrial action
may apply to the Commission for a declaration that the person is no longer
bound by the agreement.
"(7) On such an application, the Commission may, by order, declare that the
applicant is no longer bound by the agreement, if the Commission is satisfied
that it is in the public interest to make the declaration. Enterprise
flexibility agreements may be terminated by consent
"170NO.(1) A person bound by an enterprise flexibility agreement may, with the
consent of all other persons bound by the agreement, give the Commission
written notice stating that the person does not want to remain bound by the
agreement.
"(2) All the persons bound by an enterprise flexibility agreement may jointly
give the Commission written notice stating that they want the agreement to be
terminated.
"(3) On receipt of such a notice, if the Commission is satisfied that it would
be in the public interest for the person to be no longer bound, or for the
agreement to be terminated, as the case may be, the Commission may, by order,
make a declaration to that effect. Eligible union may agree to be bound by
enterprise flexibility agreement
"170NP.(1) If:
(a) an employer has made an agreement under this Division; and
(b) the Commission has not yet approved implementation of the agreement
(whether or not an application for approval has been made); an
eligible union may, by written notice given to the employer, agree to
be bound by the agreement if and when the Commission approves its
implementation.
"(2) If:
(a) a variation of an agreement made under this Division is proposed; or
(b) an agreement made under this Division has been varied but the
variation has not yet taken effect; an eligible union may, by written
notice given to the employer:
(c) if the union is already bound by the agreement-agree to be bound by
the variation if and when it takes effect; or
(d) otherwise-agree to be bound by the agreement as varied if and when the
variation takes effect. This subsection applies whether or not a
previous variation of the agreement has taken effect.
"(3) While an enterprise flexibility agreement is in force because of
subsection 170NJ(3), an eligible union may, by written notice given to the
employer, agree to be bound by the agreement on and after a day specified in
the notice. This subsection applies whether or not a variation of the
agreement has taken effect.
"(4) A notice under subsection (1), (2) or (3) cannot be revoked.
"(5) An eligible union that has agreed as mentioned in subsection (1),
paragraph (2)(d) or subsection (3) is bound accordingly.
"(6) However, after a variation (however made) of the agreement takes effect,
or a further such variation takes effect, as the case requires, the union:
(a) is no longer bound by the agreement as in force before the variation
or further variation took effect; and
(b) is not bound by the agreement as varied unless, before the variation
or further variation took effect, the union agreed under subsection
(2) to be bound by the variation or further variation.
"(7) Subsection (6) does not apply to a variation made under subsection 113(2)
or (2A). If, immediately before such a variation of the agreement takes
effect, the union is still bound by the agreement, the union is bound by the
agreement as varied.
"Division 4-Immunity from civil liability Object of Division
"170PA.(1) The object of this Division is to give effect, in particular
situations, to Australia's international obligation to provide for a right to
strike. This obligation arises under:
(a) Article 8 of the International Covenant on Economic, Social and
Cultural Rights (a copy of the English text of the Preamble, and Parts
II and III, of the Covenant is set out in Schedule 8); and
(b) the Freedom of Association and Protection of the Right to Organise
Convention, 1948 (a copy of the English text of the Preamble, and
Parts I and II, of the Convention is set out in Schedule 15); and
(c) the Right to Organise and Collective Bargaining Convention, 1949 (a
copy of the English text of the Preamble, and Articles 1 to 6, of the
Convention is set out in Schedule 16); and
(d) the Constitution of the International Labour Organisation; and
(e) customary international law relating to freedom of association and the
right to strike. Note: The Schedule to the International Labour
Organisation Act 1947 sets out a copy of the English text of the
Constitution of the International Labour Organisation as in force when
that Act was enacted. The Schedules to the
International Labour Organisation Act 1973 set out the English texts
of various instruments of amendment of that Constitution. As at the
enactment of this Act, the amendments made by the instruments set out
in Schedules 3, 4 and 5 of the 1973 Act had not yet come into force.
"(2) The Parliament considers that it is necessary to provide specific
legislative protection for the right to strike, subject to limitations
compatible with the existence of the right, in situations where:
(a) there exists an industrial dispute involving an employer and one or
more organisations members of which:
(i) are employed by the employer to perform work in a single
business, part of a single business or a single place of work;
and
(ii) are covered by an award; and
(b) the employer and one or more of those organisations are negotiating an
agreement under Division 2.
"(3) In addition to the effect that this Division has under subsections (1)
and (2), it has such effect as it would have, apart from those subsections,
under the powers conferred on the Parliament by paragraph 51(xxxv) of the
Constitution. Joint employers
"170PB. A reference in this Division to an employer includes a reference to 2
or more employers carrying on a business as a joint venture or common
enterprise. Application of Division
"170PC. This Division applies if:
(a) the Commission has found that an industrial dispute exists; and
(b) the dispute involves a particular employer and a particular
organisation or organisations of employees; and
(c) wages and conditions of employment of employees who:
(i) are employed by the employer; and
(ii) are members of the organisation or one of the organisations;
are regulated by one or more awards (as defined in subsection
170MC(6)) that bind the employer; and
(d) all or some of those employees are employed by the employer in a
single business or a part of a single business or at a single place of
work. Initiation of bargaining period
"170PD.(1) Subject to paragraph 170PP(7)(c), if the employer, or the
organisation or one of the organisations of employees, wants to negotiate an
agreement under Division 2 in relation to employees (the 'relevant employees')
that are employed in the single business or the part of the single business,
or at the single place of work, as the case may be, referred to in paragraph
170PC(c), the employer or organisation (the 'initiating party') may initiate a
period (the 'bargaining period') for negotiating the proposed agreement.
"(2) The bargaining period is initiated by the initiating party giving written
notice to the other proposed party or the other proposed parties to the
agreement, and to the Commission, stating that the initiating party intends to
try, or to continue to try:
(a) to reach an agreement under Division 2 with that party or those
parties in settlement of the industrial dispute in so far as it
involves the relevant employees; and
(b) to have any agreement so reached certified under Division 2.
"(3) In this Division, the initiating party and the other proposed party or
the other proposed parties are called 'negotiating parties'. Particulars to
accompany notice
"170PE. The notice is to be accompanied by particulars of:
(a) the single business or part of the single business, or the single
place of work, to be covered by the proposed agreement; and
(b) the proposed party or proposed parties to the agreement; and
(c) the matters that the initiating party proposes should be dealt with by
the agreement; and
(d) the industrial dispute to which the proposed agreement relates; and
(e) the proposed period of the agreement; and
(f) any other matters prescribed by the regulations. When bargaining
period begins
"170PF. The bargaining period begins at the end of 7 days after:
(a) the day on which the notice was given; or
(b) if the notice was given to different persons on different days-the
later or latest of those days. Protected action
"170PG.(1) This section identifies certain action ('protected action') to
which the provisions set out in section 170PM are to apply.
"(2) During the bargaining period, an organisation of employees that is a
negotiating party, a member of such an organisation who is employed by the
employer, or an officer or employee of such an organisation acting in that
capacity, is entitled, for the purpose of supporting or advancing claims made
by the organisation that are the subject of the industrial dispute, to
organise or engage in industrial action directly against that employer and, if
the organisation, member, officer or employee does so, the organising of, or
engaging in, that industrial action is protected action.
"(3) Subject to subsection (6), during the bargaining period, the employer is
entitled, for the purpose of:
(a) supporting or advancing claims made by the employer that are the
subject of the industrial dispute; or
(b) responding to industrial action by any of the relevant employees; or
for both of those purposes, to lock out all or any of the relevant
employees from their employment and, if the employer does so, the
lockout is protected action.
"(4) The reference in subsection (3) to the employer locking out employees
from their employment is a reference to the employer preventing employees from
performing work under their contracts of employment without terminating those
contracts.
"(5) If the employer locks out employees from their employment in accordance
with subsection (3), the employer is entitled to refuse to pay any
remuneration to the employees in respect of the period of the lockout.
"(6) The employer is not entitled to lock out employees from their employment
under subsection (3) unless the continuity of the employees' employment for
such purposes as are prescribed by the regulations is not affected by the
lockout.
"(7) This section has effect subject to the following provisions of this
Division. 72 hours' notice of action to be given
"170PH.(1) Any action taken as mentioned in subsection 170PG(2) by an
organisation of employees, a member of such an organisation, or an officer or
employee of such an organisation acting in that capacity, is not protected
action unless at least 72 hours' written notice of the intention to take the
action has been given by the organisation to the other negotiating party or
each of the other negotiating parties.
"(2) Any action taken as mentioned in subsection 170PG(3) by the employer to
lock out employees from their employment:
(a) is not protected action unless at least 72 hours' written notice of
the intended lockout has been given by the employer to the other
negotiating party or each of the other negotiating parties; and
(b) is not protected action in so far as it relates to a particular
employee unless, at least 72 hours before the lockout begins, the
employer has given written notice to the employee, or has taken other
reasonable steps to notify the employee, of the intended lockout.
"(3) A written notice or other notification under this section must state the
nature of the intended action and the day when it will begin.
"(4) A written notice or other notification under this section may be given
before the start of the bargaining period. Negotiation must precede industrial
action or lockout
"170PI.(1) The engaging in industrial action by a person who is a member of an
organisation of employees is not protected action unless the organisation has,
before the person begins to engage in the industrial action:
(a) tried to reach agreement with the employer; and
(b) if the Commission has made an order as mentioned in section 170QK in
relation to the negotiations-complied with the order in so far as it
applies to the organisation.
"(2) A lockout of employees by an employer is not protected action unless the
employer has, before the employer begins the lockout:
(a) tried to reach agreement with the organisation or organisations of
which the employees are members; and
(b) if the Commission has made an order as mentioned in section 170QK in
relation to the negotiations-complied with the order in so far as it
applies to the employer. What happens if Commission orders a ballot
"170PJ. If, under section 135, the Commission has ordered that a vote of
members of an industrial organisation be taken by secret ballot in relation to
the subject matter of the industrial dispute, the organising of, or engaging
in, industrial action by the organisation, by a member of the organisation, or
by an officer or employee of the organisation acting in that capacity, after
the making of the order is not protected action unless:
(a) such a ballot has been taken; and
(b) the industrial action has been approved by a majority of the valid
votes cast in the ballot. Industrial action must be duly authorised
"170PK.(1) The engaging in industrial action by members of an organisation of
employees is not protected action unless, before the industrial action begins:
(a) in any case-the industrial action is duly authorised by a committee of
management of the organisation or by someone authorised by such a
committee to authorise the industrial action; and
(b) if the rules of the organisation provide for how the industrial action
is to be authorised-the industrial action is duly authorised under
those rules; and
(c) written notice of the giving of the authorisation is given to a
Registrar.
"(2) Industrial action is taken for the purposes of this section to be duly
authorised under the rules of an organisation of employees even though a
technical breach has occurred in authorising the industrial action, so long as
the person or persons who committed the breach acted in good faith.
"(3) Examples of a technical breach in authorising industrial action are as
follows:
(a) a contravention of the rules of the organisation;
(b) an error or omission in complying with the requirements of this Act;
(c) the taking part in the making of a decision by a committee of
management, or in the making of the decision by members, of the
organisation by a person who was not eligible to take part in the
making of the decision.
"(4) Industrial action is taken to have been duly authorised under the rules
of an organisation of employees, and to have been so authorised before the
industrial action began, unless the Court has, in a proceeding brought in the
Court within 6 months after the giving of a notification in relation to that
industrial action to a Registrar under paragraph (1)(c), declared that the
industrial action was not duly authorised under those rules.
"(5) In so far as the rules of an organisation of employees provide for how
industrial action that section 170PG entitles the organisation to organise or
engage in is to be authorised, the rules do not contravene section 196 unless
the manner provided for contravenes that section. What happens if application
to certify agreement is not made within 21 days
"170PL. Unless an application to the Commission to certify an agreement is
made within 21 days after the day when a memorandum of the terms of the
agreement is made, nothing that was done by a party to the agreement during
the bargaining period is protected action. Immunity provisions
"170PM.(1) An order made by the Commission under section 127 does not apply to
protected action.
"(2) A bans clause does not apply to protected action.
"(3) Subject to subsection (4), an action does not lie under any law (whether
written or unwritten) in force in a State or Territory in respect of any
industrial action that is protected action unless the industrial action has
involved or is likely to involve:
(a) personal injury; or
(b) wilful or reckless destruction of, or damage to, property; or
(c) the unlawful taking, keeping or use of property.
"(4) Subsection (3) does not prevent an action for defamation being brought in
respect of anything that occurred in the course of industrial action. When
bargaining period ends
"170PN. The bargaining period ends:
(a) if a written agreement under Division 2 is entered into between the
employer and any one or more of the other negotiating parties; or
(b) if the initiating party tells the other negotiating party or each of
the other negotiating parties in writing that the initiating party no
longer wants to reach an agreement under Division 2 with that other
party or those other parties in settlement of the relevant industrial
dispute; or
(c) if the Commission terminates the bargaining period; whichever first
happens. Power of Commission to suspend or terminate bargaining period
"170PO.(1) Subject to subsection (2), the Commission may, by order, suspend or
terminate the bargaining period if, after giving the negotiating parties an
opportunity to be heard, it is satisfied that:
(a) a negotiating party that has organised or is organising, or has taken,
industrial action to support or advance claims that are the subject of
the industrial dispute:
(i) is not genuinely trying to reach an agreement with the other
negotiating parties in settlement of the industrial dispute; or
(ii) has failed to comply with any directions by the Commission
relating to negotiating in good faith; or
(b) industrial action that is being taken to support or advance claims
that are the subject of the industrial dispute is threatening:
(i) to endanger the life, the personal safety or health, or the
welfare, of the population or of part of it; or
(ii) to cause significant damage to the Australian economy or an
important part of it; or
(c) if the bargaining period relates to employees employed in a part of a
single business, or at a single place of work in a single business,
and the initiating party is not complying with an award or order, or a
direction of the Commission, in relation to another part of the single
business or another place of work in the single business.
"(2) The Commission:
(a) may not make an order under subsection (1) on a ground stated in
paragraph (1)(a) or (c) except on an application made by a negotiating
party; but
(b) may make an order under that subsection on the ground stated in
paragraph (1)(b):
(i) on its own initiative; or
(ii) on an application made by a negotiating party or by the
Minister.
"(3) The power of the Commission to suspend or terminate the bargaining period
may be exercised whether those circumstances occurred before or during the
bargaining period.
"(4) Anything done by:
(a) a negotiating party; or
(b) a member, officer or employee of an organisation of employees that is
a negotiating party; in connection with the industrial dispute in so
far as the dispute relates to the single business or part of the
single business, or the single place of work, to which the bargaining
period relates is not protected action if it is done at a time when
the bargaining period is suspended. What happens if Commission
terminates a bargaining period under paragraph 170PO(1)(b)
"170PP.(1) This section applies if a bargaining period initiated by an
organisation of employees is terminated on the ground set out in paragraph
170PO(1)(b).
"(2) The Commission must immediately begin to exercise its powers under this
Act to prevent or settle the industrial dispute.
"(3) Subject to subsection (5), if the Commission proposes:
(a) to make a new award covering; or
(b) to vary an existing award so as to cover; employees whose terms and
conditions of employment were the subject of the industrial dispute,
the Commission must:
(c) if paragraph (a) applies-make the new award as a paid rates award; or
(d) if paragraph (b) applies-vary the award so that it will be a paid
rates award; in relation to any of those employees who are employed in
the single business or part of the single business, or at the single
place of work, to which the bargaining period relates.
"(4) In deciding the terms to be included in an award that it proposes to make
or vary as mentioned in subsection (3), the Commission must base its decision
on the merits of the matters under consideration and need not follow
principles that apply in determining wages and conditions of employment by
making awards under Part VI.
"(5) Subsection (3) does not apply to a new award or a variation of an
existing award if the parties to the industrial dispute agree that the
subsection is not so to apply.
"(6) An award made or varied as mentioned in subsection (3):
(a) may, if the Commission thinks it appropriate, include a bans clause;
and
(b) must be expressed to operate for a fixed period.
"(7) During the fixed period:
(a) subsections 148(1) and (3) do not apply to the award but subsection
148(2) does so apply; and
(b) the award may only be varied for the purpose of:
(i) removing ambiguity or uncertainty; or
(ii) including, omitting or varying a bans clause; or
(iii) including, omitting or varying a term (however expressed) that
authorises an employer to stand-down an employee; and
(c) the parties to the award may not initiate a bargaining period under
section 170PD for negotiating an agreement in relation to matters
dealt with in the award.
"Division 5-Commission's role in facilitating
agreements under this Part
"Subdivision A-Bargaining Division of Commission Bargaining Division of
Commission
"170QA.(1) A Bargaining Division of the Commission is established.
"(2) The Division consists of the Vice President, and the other member or
members of the Commission, assigned to it under section 170QC. Role of the
Bargaining Division
"170QB.(1) Subject to this Part, the Bargaining Division is to perform and
exercise:
(a) the Commission's functions and powers under this Part; and
(b) the Commission's functions and powers in relation to an industrial
dispute in relation to which a bargaining period has been initiated
under section 170PD. These are called the Bargaining Division's
functions and powers.
"(2) The Bargaining Division's functions and powers may only be performed and
exercised:
(a) by a member of the Division; or
(b) by a member of the Commission in accordance with a declaration in
force under subsection 170QD(1); or
(c) by the Commission constituted by 2 or more of its members, each of
whom is:
(i) a member of the Division; or
(ii) a member of the Commission acting in accordance with a
declaration in force under subsection 170QD(1); or
(d) by a Full Bench (whether on appeal or otherwise); or
(e) by the President under section 108.
"(3) Subsection (2) does not affect the validity of any act or decision.
Assignment of Commission members to the Bargaining Division
"170QC.(1) The Governor-General may by writing assign to the Bargaining
Division a Vice President or acting Vice President, unless a Vice President or
acting Vice President is already assigned to the Division.
"(2) The Governor-General may by writing assign to the Division a member of
the Commission (except the President, a Vice President or an acting Vice
President).
"(3) In this section:
'acting Vice President' means a person acting in an office of Vice President
during a vacancy in the office. Exercise of Bargaining Division's functions
and powers by other Commission members
"170QD.(1) The President may make available a member of the Commission to
perform or exercise all or any of the Bargaining Division's functions and
powers, as the President thinks fit.
"(2) The President may, under subsection (1), make a member of the Commission
available to perform or exercise functions and powers of the Bargaining
Division either generally or as the President otherwise specifies.
"(3) The President must exercise the power under subsection (1) by written
declaration. Composition of Full Bench established to perform or exercise any
of the Bargaining Division's functions and powers
"170QE.(1) A Full Bench established for the purposes of a proceeding that will
involve performing or exercising any of the Bargaining Division's functions
and powers (whether on appeal or otherwise) must consist, so far as
practicable, of members of the Bargaining Division.
"(2) Before establishing a Full Bench for the purposes of such a proceeding,
the President must consult the Vice President assigned to the Bargaining
Division. Organisation of the Bargaining Division's work
"170QF. The Vice President assigned to the Bargaining Division is to organise
and allocate its work. The other member or members of the Division, and a
member or members made available to the Division under subsection 170QD(1),
must comply with the Vice President's directions in relation to that work.
Assignment of other work to Bargaining Division "170QG.(1) A member of the
Bargaining Division may, as well as performing and exercising the Bargaining
Division's functions and powers, perform other functions, and exercise other
powers, as a member of the Commission, but only as provided by Part VIC or in
accordance with a determination under subsection (2).
"(2) The President may determine in writing that specified members of the
Bargaining Division are to perform specified functions, and exercise specified
powers, as members of the Commission, either generally or as otherwise
specified in the determination.
"(3) Before making an instrument under subsection (2), the President must
consult the Vice President assigned to the Bargaining Division.
"(4) A determination under subsection (2) has effect despite section 37, in so
far as the determination relates to a member of the Commission who is not a
member of the relevant panel.
"(5) Subsection (1) does not affect the validity of an act or decision.
"Subdivision B-Conciliation in relation to proposed agreements Commission may
conciliate in relation to certain proposed agreements under this Part
"170QH.(1) This section applies if the Commission becomes aware that:
(a) a party to an industrial situation wants to negotiate, or is
negotiating, with any other party or parties to the situation, an
agreement under Division 2 for preventing the situation from giving
rise to an industrial dispute between them; or
(b) an employer that is a constitutional corporation and carries on an
enterprise wants to negotiate, or is negotiating, with employees whom
the employer employs to perform work in that enterprise, for the
making of an agreement under Division 3; or
(c) employees whom such an employer employs to perform work in the
enterprise want to negotiate, or are negotiating, with the employer
for the making of an agreement under Division 3.
"(2) The Commission may try, by conciliation, to facilitate the making of such
an agreement if it considers that conciliation by it would facilitate the
making of such an agreement.
"(3) If:
(a) a party to the industrial situation; or
(b) the employer, any of the employees, or an eligible union; as the case
requires, asks the Commission to exercise powers under subsection
(2) , the Commission must decide as quickly as it can whether or not to do so.
Directions and orders to overcome procedural difficulties
"170QI.(1) The Vice President assigned to the Bargaining Division may give
directions, and make orders, in order to facilitate the making of agreements
under this Part.
"(2) A direction or order has effect subject to an order of the Court, but
despite:
(a) the regulations or the Rules of the Commission; or
(b) the rules of an organisation. Application of Part VI to conciliation
under this Division
"170QJ. In so far as it relates to conciliation by the Commission, Part VI
applies in relation to conciliation by the Commission under this Division:
(a) in the same way as it applies to preventing and settling industrial
disputes by conciliation; and
(b) in the case of conciliation under section 170QH-as if the industrial
situation were an industrial dispute referred for conciliation under
that Part; and
(c) in the case of conciliation under section 170QI-as if the subject
matter of the negotiations between the employer and employees were an
industrial dispute referred for conciliation under that Part; and
(d) with any other necessary changes. Commission orders in relation to
negotiations for agreements under this Part
"170QK.(1) To avoid doubt, a reference in subsection 111(2) to a proceeding
before the Commission includes a reference to a conciliation proceeding under
Part VI or under this Division.
"(2) The Commission may make orders under paragraph 111(1)(t) for the purpose
of:
(a) ensuring that the parties negotiating an agreement under this Part do
so in good faith; or
(b) promoting the efficient conduct of negotiations for such an agreement;
or
(c) otherwise facilitating the making of such an agreement. In particular,
the Commission may, for such a purpose, order a party to take, or
refrain from taking, specified action.
"(3) In deciding what orders (if any) to make, the Commission:
(a) must consider the conduct of each of the parties to the negotiations,
in particular, whether the party concerned has:
(i) agreed to meet at reasonable times proposed by another party;
or
(ii) attended meetings that the party had agreed to attend; or
(iii) complied with negotiating procedures agreed to by the parties;
or
(iv) capriciously added or withdrawn items for negotiation; or
(v) disclosed relevant information as appropriate for the purposes
of the negotiations; or
(vi) refused or failed to negotiate with one or more of the parties;
or
(vii) in or in connection with the negotiations, contravened section
170RB by refusing or failing to negotiate with a person who is
entitled under that section to represent an employee; and
(b) may consider:
(i) proposed conduct of any of the parties (including proposed
conduct of a kind referred to in paragraph (a)); and
(ii) any other relevant matter.
"(4) Nothing in this section limits the generality of section 111 as applying
in relation to:
(a) an industrial dispute; or
(b) a conciliation proceeding under Part VI or this Division; or
(c) any other proceeding before the Commission.
"Division 6-Miscellaneous Employer not to discriminate between unionists and
non-unionists when negotiating agreement under this Part
"170RA.(1) An employer must not, in negotiating the terms of an agreement
under this Part, discriminate between employees of the employer:
(a) because some of those employees are members of an organisation of
employees while others are not members of such an organisation; or
(b) because some of those employees are members of a particular
organisation of employees, while others are not members of that
organisation or are members of a different organisation of employees.
"(2) Subsection (1) does not prevent the inclusion in the agreement of a
provision for preference to be given, in relation to specified matters, in a
specified manner, and subject to specified conditions, to specified
organisations, members of specified organisations, or persons who have applied
to become members of specified organisations. The specified matters may
include, for example, any of the matters referred to in subsection 122(1A).
"(3) In so far as a purpose of the agreement is to settle some or all of the
matters that are the subject of an industrial dispute to which the employer is
a party, subsection (1) does not require the agreement to cover:
(a) matters that are not the subject of that dispute; or
(b) employees whose terms and conditions of employment are not the subject
of that dispute.
"(4) In so far as a purpose of the agreement is to prevent industrial disputes
of a particular kind, subsection (1) does not require the agreement to cover:
(a) matters that are not likely to be the subject of a dispute of that
kind; or
(b) employees whose terms and conditions of employment are not likely to
be the subject of a dispute of that kind. Representation of employees
by union officials in negotiations for agreements under Division 3
"170RB.(1) This section applies for the purposes of negotiations, between an
employer that is a constitutional corporation and employees of the employer,
for the making of an agreement under Division 3.
"(2) An officer or employee ('the official') of an organisation of employees
is entitled to represent an employee if:
(a) the employee is a member of the organisation; and
(b) the organisation is entitled to represent the employee's industrial
interests; and
(c) the official is duly authorised under the organisation's rules, or by
its committee of management, to represent those interests; and
(d) the employee has informed the employer that he or she wishes to be
represented by the official for the purposes of the negotiations.
"(3) An employer must not refuse or fail to negotiate with a person who is
entitled under subsection (2) to represent an employee. Annual report about
developments in bargaining at the enterprise and workplace levels
"170RC.(1) For each reporting period, the Minister must cause a person to
review and to report to the Minister in writing about:
(a) developments in Australia during that period in bargaining at the
enterprise and workplace levels for the making of agreements under
this Part; and
(b) in particular, the effects that such bargaining has had in Australia
during that period on the employment (including wages and conditions
of employment) of women, part-time employees and immigrants.
"(2) In subsection (1):
'reporting period' means:
(a) the period beginning at the commencement of this Part and ending on 31
December 1994; or
(b) a calendar year ending on or after 31 December 1995.
"(3) The person who reviews and reports for a period as mentioned in
subsection (1) must be someone who, in the Minister's opinion, is suitably
qualified and appropriate to do so.
"(4) The person preparing a report under this section must give it to the
Minister as soon as practicable, and in any event within 6 months, after the
end of the period to which it relates.
"(5) The Minister must cause a copy of a report under this section to be laid
before each House of the Parliament within 15 sitting days of that House after
the Minister receives the report.
"(6) Subsections 34C(4) to (7) of the Acts Interpretation Act 1901 apply to a
report under this section as if it were a periodic report as defined in
subsection 34C(1) of that Act.
"PART VIC-PAID RATES AWARDS
"Division 1-Objects of Part Objects
"170SA. The objects of this Part are to ensure that:
(a) in appropriate cases, employees are protected by paid rates awards
that set fair and enforceable wages and conditions of employment that
are maintained at a relevant level; and
(b) paid rates awards are suited to the efficient performance of work
according to the needs of particular industries and enterprises, while
employees' interests are also properly taken into account.
"Division 2-Role of the Bargaining Division Paid rates functions and powers
"170TA.(1) Subject to this Part, the Bargaining Division is to perform and
exercise:
(a) the Commission's functions and powers in relation to making, varying,
suspending or cancelling a paid rates award, or varying an award so
that it becomes a paid rates award; and
(b) the Commission's functions and powers in relation to an industrial
dispute ('a paid rates dispute') that is required to be, or has been,
referred under section 170TB and has not since been referred under
section 170TC; and
(c) the Commission's functions and powers under this Part; and
(d) any other functions and powers of the Commission in relation to a paid
rates award. These are called the paid rates functions and powers.
"(2) The paid rates functions and powers are distinct from, and do not form
part of, the Bargaining Division's functions and powers as defined by
subsection 170QB(1).
"(3) However, subsections 108(2A) and 170QB(2) and (3) and sections 170QD,
170QE and 170QF apply to the paid rates functions and powers in the same way
as they apply to the Bargaining Division's functions and powers as so defined.
Certain disputes to be referred to Bargaining Division
"170TB.(1) If, at any time after:
(a) an alleged industrial dispute is notified under section 99; or
(b) the relevant Presidential Member otherwise becomes aware of the
existence of an alleged industrial dispute; the relevant Presidential
Member, or any other member of the Commission who is dealing with the
alleged industrial dispute, considers that, except so far as the
dispute may be settled by the making of an agreement under Part VIB,
settlement of the dispute may involve performing or exercising any of
the paid rates functions and powers (except those covered by paragraph
170TA(1)(b)), the relevant Presidential Member or other member must
refer the dispute to the Vice President assigned to the Bargaining
Division.
"(2) Subsection (1) applies even if the dispute has been so referred before
and has since been referred under section 170TC.
"(3) This section does not affect the validity of any act or decision. Certain
disputes to be referred back to relevant Presidential Member
"170TC.(1) The member of the Commission who is dealing with a paid rates
dispute must consult the Vice President assigned to the Bargaining Division if
the member is of the opinion that settlement of the dispute will not involve
performing or exercising any of the paid rates functions and powers (except
those covered by paragraph 170TA(1)(b) or conferred by this section).
"(2) If the Vice President assigned to the Bargaining Division is of the same
opinion, the member must refer the dispute to the relevant Presidential
Member.
"(3) This section does not affect the validity of any act or decision.
"Division 3-Making, varying and cancelling paid rates awards
Commission to consider whether paid rates dispute should be settled by
an agreement under Part VIB
"170UA. The Commission must not make an award in relation to a paid rates
dispute unless satisfied that:
(a) it is more appropriate to make the award than for the matters that
would be dealt with by the award to be dealt with by an agreement
under Part VIB; or
(b) there is no reasonable prospect of those matters being dealt with by
such an agreement. Making or varying paid rates awards
"170UB.(1) This section applies if:
(a) the Commission proposes to make a new award covering, or to vary an
existing award so as to cover, employees of a particular kind in an
industry carried on by employers; and
(b) the wages and conditions of employees of that kind in that industry,
in so far as they have customarily been determined by an award or a
State award, have customarily been determined by a paid rates award or
a State award in the nature of a paid rates award.
"(2) The Commission must make the new award as a paid rates award, or must
vary the existing award so as to be a paid rates award, in so far as it
determines wages and conditions of employment, of employees of that kind in
that industry, that have customarily been determined by a paid rates award or
a State award in the nature of a paid rates award.
"(3) However, the Commission need not do so in so far as:
(a) the Commission is satisfied that it would be against the public
interest; or
(b) each of the parties to the proposed award, or to the award as proposed
to be varied, has consented to the award not being a paid rates award.
Note: Section 170PP also provides for when a new award is to be made
as a paid rates award, or an existing award is to be varied so as to
be a paid rates award. Commission to maintain existing paid rates
awards
"170UC.(1) The Commission must maintain existing paid rates awards, and vary
them from time to time, as appropriate having regard to the objects of this
Part and the Commission's duty under subsection 90AA(2). However, the
Commission need not do so in so far as the Commission is satisfied that it is
against the public interest.
"(2) Paragraph 90AA(2)(a) does not require the Commission to ensure that paid
rates awards are consistent with awards that are not paid rates awards. Party
acting inconsistently with award's status as a paid rates award
"170UD. The Commission may:
(a) cancel a paid rates award and replace it with an award that is not a
paid rates award; or
(b) vary a paid rates award so that it stops being a paid rates award; if
the Commission is satisfied, after giving the parties to the award an
opportunity to be heard, that such a party has acted in a way that is
so inconsistent with the award as to make it inappropriate for the
award to continue as a paid rates award. Paid rates awards to be
identified as such
"170UE.(1) The Commission must include in a new paid rates award a statement
that the award is a paid rates award.
"(2) If the Commission:
(a) varies an existing paid rates award; or
(b) varies an existing award so that it becomes a paid rates award; the
Commission must include in the varied award a statement that the award
is a paid rates award, unless the award already contains such a
statement.
"(3) If the Commission varies an award so that it stops being a paid rates
award, the Commission must remove from the award the statement included under
subsection (1) or (2).
"(4) This section does not affect the validity of an award or variation.".
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