Commonwealth Numbered Acts

INDUSTRIAL RELATIONS REFORM ACT 1993 No. 98 of 1993 - SECT 38

38. Division 7 of Part VI of the Principal Act is repealed and the following
Division is substituted:
                 "Division 7-Secondary Boycotts


"Subdivision A-Interpretation Definitions

"156. In this Division, unless the contrary intention appears:
'acquire' includes:

   (a)  in relation to goods-acquire by way of purchase, exchange or taking on
        lease, on hire or on hire-purchase; and

   (b)  in relation to services-accept;
'agreement' includes an arrangement or understanding;
'boycott conduct' means conduct that constitutes or would constitute:

   (a)  a boycott contravention; or

   (b)  attempting to commit a boycott contravention; or

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

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

   (e)  being in any way, directly or indirectly, knowingly concerned in, or
        party to, the commission of a boycott contravention; or

   (f)  conspiring with others to commit a boycott contravention;
'boycott contravention' means a contravention of section 162 or 163;
'boycott dispute' means a dispute:

   (a)  that relates to a boycott contravention or a threatened, impending or
        probable boycott contravention; and

   (b)  in relation to which either of the following applies:

        (i)    the dispute relates, or may relate, to work done or to be done
               under an award or under an award or order of the Coal Industry
               Tribunal established under the Coal Industry Act 1946;

        (ii)   the dispute involves an organisation of employees or a member,
               officer or employee of such an organisation;
'business' includes a business not carried on for profit;
'constitutional corporation' means:

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

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

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

   (d)  a body corporate that is incorporated in a Territory;
'constitutional trade or commerce' means:

   (a)  trade or commerce between Australia and places outside Australia; or

   (b)  trade or commerce among the States; or

   (c)  trade or commerce within a Territory, between a State and a Territory
        or between 2 Territories; or

   (d)  the supply of goods or services to or by the Commonwealth or an
        authority or instrumentality of the Commonwealth;
'goods' includes:

   (a)  ships, aircraft or other vehicles; or

   (b)  animals, including fish; or

   (c)  minerals, trees or crops, whether on, under or attached to land or
        not; or

   (d)  gas or electricity;
'industrial dispute' means an industrial dispute within the meaning of
paragraph 51(xxxv) of the Constitution, whether or not it extends beyond the
limits of a State;
'industrial matter' means a matter that is, or could be, the subject of an
industrial dispute;
'provision', in relation to an understanding, means any matter forming part of
the understanding;
'services' includes any rights (including rights in relation to, and interests
in, real or personal property), benefits, privileges or facilities that are,
or are to be, provided, granted or conferred in trade or commerce, and without
limiting the generality of the above, includes the rights, benefits,
privileges or facilities that are, or are to be, provided, granted or
conferred under:

   (a)  a contract for or in relation to:

        (i)    the performance of work (including work of a professional
               nature), whether with or without the supply of goods; or

        (ii)   the provision of, or the use or enjoyment of facilities for,
               amusement, entertainment, recreation or instruction; or

        (iii)  the conferring of rights, benefits or privileges for which
               remuneration is payable in the form of a royalty, tribute, levy
               or similar exaction; or

   (b)  a contract of insurance; or

   (c)  a contract between a banker and a customer of the banker entered into
        in the course of banking business; or

   (d)  a contract for or in relation to the lending of money; but does not
        include rights or benefits consisting of the supply of goods or the
        performance of work under a contract of service;
'supply' includes:

   (a)  in relation to goods-supply by way of sale, exchange, lease, hire or
        hire-purchase; and

   (b)  in relation to services-provide, grant or confer;
'trading', in relation to a person, means:

   (a)  supplying goods or services to the person; or

   (b)  acquiring goods or services from the person. Engaging in conduct

"157. In this Division, a reference to engaging in conduct is a reference to
doing or not doing any act, including the making of, or the giving effect to a
provision of, a contract or arrangement or the arriving at, or the giving
effect to a provision of, an understanding. Acquisition or supply of goods or
services

"158. In this Division, unless the contrary intention appears:

   (a)  a reference to the acquisition of goods includes a reference to the
        acquisition of property in, or rights in relation to, goods pursuant
        to a supply of the goods; and

   (b)  a reference to the supply or acquisition of goods or services includes
        a reference to agreeing to supply or acquire goods or services; and

   (c)  a reference to the supply or acquisition of goods includes a reference
        to the supply or acquisition of goods together with other property or
        services, or both; and

   (d)  a reference to the supply or acquisition of services includes a
        reference to the supply or acquisition of services together with
        property or other services, or both.

"Subdivision B-Operation of Division Application of Division to Commonwealth
and Commonwealth authorities

"159. To the extent that a business is carried on by:

   (a)  the Commonwealth; or

   (b)  a body corporate established for a purpose of the Commonwealth by or
        under a law of the Commonwealth or a law of a Territory; or

   (c)  an incorporated company in which the Commonwealth, or a body corporate
        of a kind referred to in paragraph (b), has a controlling interest;
        this Division applies to the Commonwealth, the body corporate or the
        incorporated company, as the case may be, as if it were a
        constitutional corporation. Additional operation of provision
        prohibiting boycotts

"160. In addition to its effect apart from this section, section 162 has the
effect that it would have if:

   (a)  any reference to conduct were a reference to conduct in the course of,
        or in relation to, constitutional trade or commerce; and

   (b)  the reference in paragraph 162(2)(a) to trading were a reference to
        trading by way of constitutional trade or commerce; and

   (c)  in subsection 162(3) the words 'if either the third person or the
        fourth person is a constitutional corporation' were omitted.
        Additional operation of provision prohibiting boycotting agreements

"161. In addition to its effect apart from this section, section 163 has the
effect that it would have if:

   (a)  any reference to trade, or to trading, were a reference to trade, or
        trading, as the case may be, by way of constitutional trade or
        commerce; and

   (b)  paragraph 163(3)(b) were omitted.

"Subdivision C-Boycotts and boycotting agreements Boycotts

"162. (1) This section applies if a person (the 'first person') and another
person (the 'second person'), in concert, engage in conduct the ultimate
purpose of which is to protect or advance the interests of a person or trade
union in relation to industrial matters.

"(2) For the purposes of this section, the first person and the second person,
by so engaging in the conduct, are to be regarded as taking part in a boycott
if, and only if:

   (a)  the conduct hinders or prevents a third person from trading with a
        fourth person; and

   (b)  neither the first nor the second person is an employee of the fourth
        person; and

   (c)  the conduct is in support of a claim made or intended to be made on
        the fourth person about an industrial matter; and

   (d)  an immediate and substantial purpose of the conduct is to cause
        substantial loss or damage to the business of the fourth person, and
        the conduct has or is likely to have that effect.

"(3) A person must not take part in a boycott if either the third person or
the fourth person is a constitutional corporation.

"(4) A person is not regarded as taking part in a boycott by engaging in
conduct the ultimate purpose of which is substantially related to:

   (a)  the remuneration, conditions of employment, hours of work or working
        conditions of that person or of another person employed by an employer
        of that person; or

   (b)  an employer of that person having terminated, or taken action to
        terminate, the employment of that person or of another person employed
        by that employer.

"(5) A person may be regarded as taking part in a boycott by engaging in
particular conduct in concert with another person even though, because of
subsection (4), the other person is not regarded as taking part in a boycott
by engaging in that conduct.

"(6) If the following persons:

   (a)  an organisation or organisations of employees, or an officer or
        officers of such an organisation, or both such an organisation or
        organisations and such an officer or officers; and

   (b)  an employee, or 2 or more employees who are employed by the one
        employer; engage in conduct, in concert with each other (and not in
        concert with anyone else), none of them is regarded as taking part in
        a boycott by engaging in that conduct if the ultimate purpose of the
        conduct is substantially related to:

   (c)  the remuneration, conditions of employment, hours of work or working
        conditions of the employee, or of any of the employees, referred to in
        paragraph (b); or

   (d)  the employer of the employee, or of the employees, referred to in
        paragraph (b) having terminated, or taken action to terminate, the
        employment of any of his or her employees.

"(7) This section does not apply if:

   (a)  the fourth person has freely agreed to the conduct; or

   (b)  the conduct was specifically authorised or approved by or under an
        award, an award or order of a State industrial authority, or a law of
        the Commonwealth or of a State or Territory; or

   (c)  the conduct was in contemplation or furtherance of claims against the
        fourth person that directly affected the persons who engaged in the
        conduct; or

   (d)  the conduct was in support of industrial action engaged in by, and was
        in contemplation or furtherance of claims about industrial matters
        that directly affected, persons:

        (i)    who were employed by the same employer as persons who engaged
               in the conduct or, if the employer of those persons was a body
               corporate, by a related body corporate; or

        (ii)   who had been so employed but whose employment had been
               terminated.

"(8) For the purposes of paragraph (7)(d), the question whether 2 bodies
corporate are related to each other is to be determined in the same way as for
the purposes of the Corporations Law.

"(9) This section does not apply to conduct if:

   (a)  the following persons:

        (i)    one or more persons ('the members'); and

        (ii)   one or more persons each of whom is:

                (A)  a trade union of which at least one of the members is a
                     member; or

                (B)  an officer of such a trade union; engage in the conduct,
                     in concert with each other (and not in concert with
                     anyone else); and

   (b)  because of paragraph (7)(c) or (d), this section would not apply to
        the conduct if it had been engaged in only by the members. Exemption
        of peaceful picketing

"162A. Section 162 does not apply to conduct consisting only of persons being
present outside particular premises or a particular place for one or more of
these purposes:

   (a)  obtaining information from, or communicating information to, people
        wishing to enter or leave the premises or place;

   (b)  persuading people not to enter or leave the premises or place; if the
        conduct does not involve any obstruction, molestation or intimidation
        of any of those people. Boycotting agreements

"163.(1) This section applies if a person (the 'first person') enters into an
agreement with another person (the 'second person') the ultimate purpose of
which is to prevent or settle an industrial dispute or part of such a dispute
in connection with trading between the first person and a third person.

"(2) For the purposes of this section, the first person and the second person,
by entering into the agreement, are to be regarded as entering into a
boycotting agreement if, and only if:

   (a)  the first person is accustomed, or under an obligation, to trade with
        a third person in particular goods or services; and

   (b)  a substantial immediate purpose of the agreement is:

        (i)    to prevent or hinder the first person from continuing to trade
               with the third person in those goods or services; or

        (ii)   to make any continued trading between the first person and the
               third person in those goods or services subject to a condition
               preventing or hindering the third person from supplying any
               goods or services to another person; and

   (c)  the agreement has or is likely to have the effect of causing
        substantial loss or damage to the business of the third person.

"(3) A person must not enter into a boycotting agreement as the first person
if:

   (a)  the second person is a trade union or a member, officer or employee of
        a trade union; and

   (b)  either the first person or the third person is a constitutional
        corporation.

"(4) This section does not apply if:

   (a)  the third person is a party to the agreement or otherwise has freely
        agreed to it; or

   (b)  the agreement was specifically authorised or approved by or under an
        award, an award or order of a State industrial authority, or a law of
        the Commonwealth or of a State or Territory; or

   (c)  the condition referred to in subparagraph (2)(b)(ii), or a
        substantially similar condition, has been included in a previous
        agreement between the first person and the third person.

"(5) Subject to subsection (6), a reference in this section to a person who is
accustomed to trading with another person in goods or services is a reference
to:

   (a)  a person who has been a regular trader with the other person in those
        goods or services; or

   (b)  a person who:

        (i)    traded with the other person in those goods or services at any
               time within the immediately preceding period of 3 months; and

        (ii)   could reasonably be expected to continue to trade regularly
               with the other person in those goods or services. "(6) If:

   (a)  a person has traded with another person in goods or services under a
        contract under which the first-mentioned person was required over a
        particular period to trade with the other person in such goods or
        services; and

   (b)  the period has ended; and

   (c)  after the end of the period the first-mentioned person has refused to
        trade in such goods or services with the other person; then, for the
        purposes of the application of subsection (5) in relation to anything
        done after the first-mentioned person has refused to trade in goods or
        services as mentioned in paragraph (c), the first-mentioned person is
        taken not to be a person who is accustomed to trading with the other
        person in those goods or services.

"Subdivision D-Powers of Commission in relation to boycott disputes
Notification of boycott disputes

"163A.(1) A boycott dispute may be notified to a member of the Commission, or
to a Registrar, by any of the following persons:

   (a)  an organisation of employees that is, or any of whose members,
        officers or employees are, involved in the dispute;

   (b)  an organisation of employees, if the employment of any of its members
        is affected by the dispute;

   (c)  an employer whose employees are involved in the dispute;

   (d)  an employer, if the employment of any of the employer's employees is
        affected by the dispute;

   (e)  an organisation of which an employer referred to in paragraph (c) or
        (d) is a member;

   (f)  a Minister;

   (g)  a person who committed or is alleged to have committed a boycott
        contravention to which the dispute relates;

   (h)  a person who is, in relation to the boycott contravention or alleged
        boycott contravention:

        (i)    the third person or fourth person referred to in subsection
               162(2); or

        (ii)   either of the persons entering into, or alleged to be entering
               into, the agreement referred to in section 163.

"(2) If a boycott dispute is notified to a Registrar, he or she must tell a
member of the Commission as soon as practicable.

"(3) A member of the Commission or a Registrar to whom a boycott dispute is
notified must immediately tell each person (other than the person who notified
the dispute) who is entitled to be a party to a proceeding before the
Commission in relation to the dispute that the dispute has been notified and
the day and time of the notification. Commission to act quickly

"163B.(1) Upon the notification of the boycott dispute, the Commission must
take immediate steps to begin to exercise its powers under this Division in
relation to the dispute and must complete the exercise of those powers as
quickly as possible.

"(2) The powers of the Commission under this Division apply in relation to a
boycott dispute even though the Coal Industry Tribunal or a Local Coal
Authority established under the Coal Industry Act 1946 may exercise or is
exercising powers in relation to the dispute, but this Division does not
prevent or otherwise affect the exercise of any powers by that Tribunal or
such an Authority. Parties to proceedings under Division

"163C. The following persons, and no others, are entitled to be parties to a
proceeding before the Commission under this Division:

   (a)  an organisation referred to in paragraph 163A(1)(a);

   (b)  an employer referred to in paragraph 163A(1)(c);

   (c)  an organisation of which an employer referred to in paragraph
        163A(1)(c) is a member;

   (d)  a person referred to in paragraph 163A(1)(g) or (h);

   (e)  a Minister;

   (f)  a person who has notified the dispute concerned to a member of the
        Commission or a Registrar under section 163A;

   (g)  a person who proposes to seek an injunction under section 163G in
        relation to a boycott or alleged boycott involved in the dispute;

   (h)  a person declared by the Commission to be entitled to be a party.
        Certificates by Commission

"163D.(1) If, after the Commission starts to exercise conciliation powers in
relation to a boycott dispute, the Commission thinks that it is not likely to
be able to settle the dispute promptly, or otherwise to stop the boycott or
alleged boycott promptly, the Commission must immediately certify in writing
to that effect.

"(2) The Commission may certify under subsection (1) on its own initiative or
on application by a party to the dispute.

"(3) If a party to a boycott dispute tells the Commission that the party wants
to begin a proceeding under section 163G or 163H in relation to any boycott
conduct to which the dispute relates and:

   (a)  the Commission decides that it would cause substantial injustice to
        the party if the party were prevented from beginning the proceeding
        while the Commission is exercising conciliation powers in relation to
        the dispute; or

   (b)  a period of 72 hours has elapsed since the boycott contravention that
        constituted or gave rise to the boycott conduct; the Commission must
        immediately certify in writing to that effect.

"(4) If:

   (a)  conduct constituting a contravention of section 162 stops before the
        end of 72 hours after it started; and

   (b)  after the conduct stopped another contravention of that section
        occurs; and

   (c)  in the Commission's opinion the other contravention is substantially
        related to the first-mentioned contravention; the other contravention
        is taken, for the purposes of paragraph (3)(b), to have occurred when
        the first-mentioned contravention started. Application of other
        provisions of Act

"163E. Subject to this Division, the provisions of this Act relating to an
industrial dispute (other than those relating to arbitration powers or to
making awards or certifying agreements) apply in relation to a proceeding
before the Commission about a boycott dispute as if:

   (a)  a reference to an industrial dispute were a reference to the boycott
        dispute; and

   (b)  a reference to the parties to an industrial dispute were a reference
        to the parties to the proceeding; and

   (c)  any other necessary changes were made.

"Subdivision E-Proceedings Criminal proceedings not to be brought for boycott
conduct

"163F. Criminal proceedings do not lie against a person merely because the
person has engaged in boycott conduct. Injunctions

"163G.(1) If, on the application of any person directly affected, the Court is
satisfied that a person has engaged, or is proposing to engage, in boycott
conduct, the Court may grant an injunction in such terms as it thinks fit.

"(2) If an application for an injunction under subsection (1) is made and the
Court thinks it appropriate to do so, the Court may grant an injunction under
that subsection by consent of all the parties to the proceedings, whether or
not the Court is satisfied that a person has engaged, or is proposing to
engage, in conduct of a kind mentioned in that subsection.

"(3) If in the opinion of the Court it is desirable to do so, the Court may
grant an interim injunction pending determination of an application under
subsection (1).

"(4) The Court may discharge or vary an injunction granted under subsection
(1) or (3).

"(5) The power of the Court to grant an injunction restraining a person from
engaging in conduct may be exercised:

   (a)  whether or not it appears to the Court that the person intends to
        engage again, or to continue to engage, in conduct of that kind; and

   (b)  whether or not the person has previously engaged in conduct of that
        kind; and

   (c)  whether or not there is an imminent danger of substantial damage to
        any person if the first-mentioned person engages in conduct of that
        kind.

"(6) The power of the Court to grant an injunction requiring a person to do
any thing may be exercised:

   (a)  whether or not it appears to the Court that the person intends not to
        do that thing or to continue not to do that thing; and

   (b)  whether or not the person has previously not done that thing; and

   (c)  whether or not there is an imminent danger of substantial damage to
        any person if the first-mentioned person does not do that thing.
        Actions for damages

"163H.(1) A person who suffers loss or damage by boycott conduct may recover
the amount of the loss or damage by action in the Court.

"(2) The action must be brought within 3 years after the date on which the
cause of action arose. Findings admissible in other proceedings

"163J. A finding of any fact by the Court made in proceedings under section
163G or 163H is admissible as prima facie evidence of that fact in any other
proceedings before the Court or the Commission under this Act.

"Subdivision F-Miscellaneous Conduct on behalf of an organisation of employees

"163K.(1) For the purposes of this Division, any conduct engaged in by:

   (a)  the committee of management of an organisation of employees or of a
        branch of such an organisation; or

   (b)  a member or group of members of an organisation of employees or a
        branch of such an organisation, acting in accordance with a resolution
        passed, or a direction given, under the rules of the organisation or
        branch; is taken to have been engaged in also by the organisation.

"(2) For the purposes of this Division, any conduct engaged in by:

   (a)  a person acting as an officer, employee or agent of an organisation of
        employees or of a branch of such an organisation; or

   (b)  a person acting as a member of an organisation of employees who
        performs the function of dealing with an employer on behalf of the
        member and other members of the organisation; within the actual or
        apparent scope of his or her employment or within his or her actual or
        apparent authority is taken to have been engaged in also by the
        organisation.

"(3) Subject to subsection (4), for the purposes of this Division, conduct
(the 'relevant conduct') is taken to have been engaged in by an organisation
of employees if it is proved:

   (a)  that the committee of management of the organisation or of a branch of
        the organisation expressly, tacitly or impliedly authorised or
        permitted the relevant conduct to be engaged in; or

   (b)  that:

        (i)    a person acting as an officer, employee or agent of the
               organisation or of a branch of the organisation; or

        (ii)   a person acting as a member of the organisation who performs
               the function of dealing with an employer on behalf of the
               member and other members of the organisation; with duties of
               such responsibility that his or her conduct may fairly be
               assumed to represent the policy of the organisation expressly,
               tacitly or impliedly authorised or permitted the relevant
               conduct to be engaged in.

"(4) Paragraph (3)(b) does not apply if the organisation or branch, as the
case may be, proves that it exercised due diligence to prevent the relevant
conduct. Conduct by directors, servants or agents of body corporate

"163L.(1) Subject to subsection (2), for the purposes of this Division:

   (a)  any conduct engaged in by a director, servant or agent of a body
        corporate within the actual or apparent scope of his or her employment
        or within his or her actual or apparent authority is taken to have
        been engaged in also by the body corporate; and

   (b)  conduct (the 'relevant conduct') is taken to have been engaged in by a
        body corporate if it is proved:

        (i)    that the directors of the body corporate expressly, tacitly or
               impliedly authorised or permitted the relevant conduct to be
               engaged in; or

        (ii)   that a servant or agent of the body corporate with duties of
               such responsibility that his or her conduct may fairly be
               assumed to represent the policy of the body corporate
               expressly, tacitly or impliedly authorised or permitted the
               relevant conduct to be engaged in.

"(2) Subparagraph (1)(b)(ii) does not apply if the body corporate proves that
it exercised due diligence to prevent the relevant conduct.

"(3) In this section:
'body corporate' does not include an organisation of employees or a branch of
such an organisation. Conduct by servants or agents of an individual

"163M.(1) Subject to subsection (2), for the purposes of this Division:

   (a)  any conduct engaged in by a servant or agent of an individual within
        the actual or apparent scope of his or her employment or within his or
        her actual or apparent authority is taken to have been engaged in also
        by the individual; and

   (b)  conduct (the 'relevant conduct') is taken to have been engaged in by
        an individual if it is proved that a servant or agent of the
        individual with duties of such responsibility that his or her conduct
        may fairly be assumed to represent the policy of the individual
        expressly, tacitly or impliedly authorised or permitted the relevant
        conduct to be engaged in.

"(2) Paragraph (1)(b) does not apply if the individual proves that he or she
exercised due diligence to prevent the relevant conduct. Matters to be taken
into account in boycott proceedings

"163N. For the purpose of the exercise of its powers in proceedings under this
Division, the Court is to have regard to any action that the applicant in the
proceedings has taken or could take before the Commission or a State
industrial authority in relation to the boycott dispute. Jurisdiction of the
Court

"163P.(1) The jurisdiction of the Court with respect to matters arising under
this Division is exclusive of the jurisdiction of any other court.

"(2) The Court does not have jurisdiction with respect to a matter arising
under this Division in relation to a boycott dispute unless the Commission has
given a certificate under section 163D in relation to the matter. Costs

"163Q. Section 347 does not apply to proceedings under this Division.".